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Cooley, J.
The bill of complaint is filed in this case to procure an authoritative construction of the will of Emma A. Waldron, late of the township of Sandstone, in the county of Jackson. The testator was the wife of complainant, and the mother of defendants. The provisions of the will upon which the controversy arises relate to the testator’s farm, and are as follows:
"First. I give and devise to my husband, Richard Waldroii, the equal undivided one-half part of the east one-half of the southeast quarter of the northeast quarter of section No. seven. Also, the west half of the southwest quarter of the northwest quarter of sec. No. eight, all in township two south, of range No. two west, in the county of Jackson, state of Michigan, containing two hundred and forty acres, more or less, subject however to the right of William Berrien to occupy one-half of the dwelling-house on premises as reserved in his deed conveying said lands to me, to have and to hold to the said Richard Waidron, and to his heirs and assigns forever the premises above described.
“ Second. I give and devise to my children, William Berrien Waldron and Marion Louise Waldron, the remaining undivided one-half part of the above described premises, to have and to hold the same to them and to their heirs and assigns forever, subject to the limitations hereinafter set forth.”
It is apparent from these provisions that there is some error in the description of the lands which are the subject of the devise. The quantity is specified as two hundred and forty acres; but the particular descriptions which are given include one hundred and forty acres only. To solve the ambiguity the parties have introduced evidence from which it appears that the testator owned a farm of two hundred and forty acres lying together in one compact body on sections seven and eight in township two south, of range two west, in the county of Jackson ; that this was purchased by her of William Berrien and that in the conveyance to her Berrien reserved the right to occupy one-half the dwelling-house on the premises. It also appears that the particulars given in the will, in describing the land according to the government subdivisions, are applicable to a portion of these lands.
The question then is whether the devise to complainant is limited to the undivided half of the one hundred and forty acres particularly described according to the government subdivisions, or will embrace the undivided half of the two hundred and forty acres which the testator owned and occupied. It is conceded that one or the other is the true construction.
We agree with counsel for defendants that oral evidence cannot be received to explain the intent, except as it may bring before the court such circumstances surrounding the making of the will as may be necessary to an understanding of the terms employed. The evidence of the scrivener as to the statements of the testator made to him preliminary to the drafting of the will must therefore be rejected. To act upon these would be to frame a new will for the testator, based upon an intent which we should reach upon parol evidence, but which she had failed to express in legal form.
But we think the testator has sufficiently described in the will the whole farm of two hundred and forty acres, and devised to the complainant the undivided half thereof. She names the sections, township, county and State in which it is situated; she specifies the quantity; she makes it subject “to the right of William Bei'rien to occupy one-half of the dwelling-house on the premises, as reserved in his deed conveying said lands to ” her, and all these particulars coincide with the land she owned and occupied, and embrace the whole of it. If there was nothing more in the description the case, we think, would be clear. But the remaining portion of the description raised an ambiguity, for it particularly specifies government subdivisions which include one hundred and forty acres only. But if this portion stood alone there would still be an ambiguity, for the house, the use of a part of which is reserved to Berrien, is not upon the one hundred and forty acres, and the reservation is therefore idle and meaningless if the devise is thus restricted. Moreover it is evident the testator intended the use of the house, so far as not reserved to Berrien, should pass to her husband, and this intent is defeated if the devise is limited to the smaller quantity.
If the devise was meant to be restricted to one hundred and forty acres, the testator committed two mistakes: First, in specifying the quantity; and second, in supposing that her dwelling-house was upon the land described, when it was not. Both these are unlikely mistakes, but the latter especially so, for it seems incredible that the testator should not have known the location of her dwelling-house. If the intent was that the devise should be of an undivided half of the whole two hundred and forty acres, there is a mistake in describing the lands according to the government subdivisions; but nothing is more common than such an error. The accidental substitution of one small word for another— such as an of for an and — often introduces incalculable mischief in such descriptions.
It is plain from what has been said that the particulars the testator gives in her will cannot all be satisfied unless the whole two hundred and forty acres are held to be devised, and that the devisee cannot otherwise have any use of the dwelling-house. The inference that such was the intent seems, therefore, irresistible. Moreover in that case the testator will not have died intestate as to any of her lands; and as nothing in other parts of the will indicates an expectation that she would do so, this is a circumstance of some importance. On the other hand the description which is given by government subdivisions is only incorrect in that it fails to embrace all the lands; it is correct so far as it goes and therefore is harmless.
Many cases supposed to resemble this were cited by counsel on the argument, but we do not specially rely upon any of them. Ve decide the case upon its special facts, and on familiar legal principles. We have been requested by counsel to make proper allowance for services in this case; but in Toms v. Williams 41 Mich. 552, we held this to be the proper business of the probate court. "We have no doubt that court will do what is just in the premises.
A decree will be entered in accordance with the views above expressed.
The other Justices concurred. | [
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] |
Marston, C. J.
An instrument, a copy of which appears herewith, was by Lamb traded off to Story for a horse. Some sixteen days after the exchange and delivery of this instrument to Story, he requested Lamb to endorse it, and there is some dispute between the parties as to what then took place, as well as to the original agreement, under which Lamb claimed he had refused to endorse or to make himself in any way liable thereon, and he also claimed that he endorsed the same simply to enable Story to sue and collect the same in his own name.
It is now claimed that this instrument was not a negotiable promissory note, and that under the evidence the requests as to Lamb’s liability in case the jury found he endorsed it solely to enable Story to collect, should have been given.
We are of opinion that the instrument sued upon cannot be considered a negotiable promissory note. While it is made payable on or before two years with ten per cent, interest, and is thus far definite and certain, yet the subsequent clause, that if paid within one year it shall not draw interest, destroys the element of certainty which otherwise would exist. No person until after the expiration of the first year, could with absolute certainty determine or ascertain the amount that would be paid in discharge thereof. The memorandum at the foot of this instrument is inconsistent with the promise made in the body, and in this respect it will be found to differ very materially from other cases decided in this court, and cited by defendant in error.
We are also of opinion that it was competent for Lamb to show the circumstances under which he placed his name on the back of this instrument. This not being a negotiable instrument, and the action being between the original parties, Lamb and Story, the facts could be shown; as they would not in our opinion vary or change any positive legal written 'agreement made by him. The position taken by him is not inconsistent with the endorsement made by him. This instrument [the note] is peculiar. It was given for the purchase price of an instrument [an organ], which had been and was to remain the property of Lamb, and he had authority to retake possession of the instrument and retain what had been paid thereon, or collect the so-called note at his option. This right he did not in terms assign to Story, and this was not the case'of a mere security accompanying a money obligation which would pass with an assignment or transfer of the latter. We are not called upon to say what Lamb’s rights and power might be under such an instrument, but we have no doubt that he might show under such an endorsement ail the facts in connection therewith, to fix and determine the character and extent thereof.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred.
$150.00. Oolumbtjs, July 18th, 1877.
On or before two years after date, we promise to pay to John A. Lamb or order the sum of one hundred and fifty dollars value received, with ten per cent, interest and current rate of exchange or express charges. This note is given for the purchase of the instrument mentioned below, which instrument is to remain the property of John A. Lamb, until the note is paid in full. It being optional with John A. Lamb upon default of payment to take possession of said instrument or to collect the note by process of law. And in case he shall take such instrument said John A. Lamb shall not be liable to refund any moneys heretofore paid by the purchaser thereof. And said instrument shall not be removed from the township of Columbus without the consent of the said John A. Lamb.
DANIEL HICKEY.
SARAH HICKEY.
Style 16, No. 53704 organ.
Payable at Wales, Michigan.
P. O. Address, Memphis, Michigan.
If this note is paid within one year no interest to be paid.
[Endorsed on back]
August 3d. 1877.
Received on the within note $35.
Pay to Thomas Story.
JOHN A. LAMB. | [
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] |
Marston, C. J.
Complainant seeks to foreclose a mortgage given July, 1827, by John McDonell of Detroit to his brother Allen McDonell of Montreal, to secure the payment of $6710 with interest by January 1st, 1830. No bond or other evidence of the indebtedness accompanied this instru ment. It is alleged in the bill of complaint that nothing whatever has been paid upon this mortgage, and that there was due thereon, at the time of filing the bill, $27,175. The record of this instrument, the death of the parties thereto, and other necessary facts are alleged in the bill.
Complainant’s counsel concedes that there is no evidence of any distinct acknowledgment of this debt as an existing lien by John McDonell, or of any claim made against him or bis estate by Allen McDonell; that the mortgage has not been produced, was not found among the papers of the deceased, and that the only -evidence thereof is the registry. It is also admitted that the statute of limitations began to run in this case in 1812, when Allen McDonell came into this State, and that it did not cease to run on his death.
The defendant purchased the property in 1867 and it is claimed had knowledge of the record of this mortgage before paying but a small part of the purchase price.
We have given due consideration to the argument advanced on behalf of the complainant, but it does not satisfy us that he has made such a case as would entitle him to a decree. While a conclusive presumption of payment may not arise from the lapse of time, yet so strong is it that clear and decisive proof should be required, to justify a court in granting a decree in such a case. In this case such proof is wanting, while the letters of Allen McDonell to his brother John do contain evidence inconsistent with the existence of an actual indebtedness. There would be great danger in granting the relief prayed for under the facts of this case.
The decree dismissing the bill of complaint must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
The township treasurer of Fife Lake brought this action to collect a tax assessed in 1876 on certain lumber owned by the firm of E. Putman & Company and manufactured in the township for them. The firm was composed of the plaintiffs in error and they all resided in Grand Rapids. The court below allowed the township to recover, and exceptions are urged.
First. It was objected that no evidence was admissible on the ground that the declaration was bad. In ruling against the objection the court committed no error.
The treasurer is allowed to sue in the name of the township and to “ take all lawful ways and means provided by law for the collection of debts” (Comp. L. § 1014), and the theory of the proceeding is that an obligation is cast by statute on the party to pay a specific sum of money to the township officer, and that on the strength of this legal liability a proper action may be maintained. What is the proper action in the particular case % It is debt or indebitatus assumpsit, the count explaining briefly the subject-matter of the debt. A special declaration is not required; though one, if drawn according to the legal effect of the statutory provisions, might not be ruled out. Each count in this declaration is in substance an indebitatus count. Thei’e is some foreign matter which is merely surplusage. It should have been omitted. But the plaintiffs in error reserved objection until the case was before the jury; and were the defect more serious we should not be inclined to listen to the exceptions based upon them.
Second. The statute makes provision that when a tax having been assessed on personal property “ shall be returned by any township treasurer for non-payment * * * it shall be lawful for such treasurer to sue, in the name of such township, the person or persons against whom such tax was assessed ” (§ 1014), and that “ the production of any tax-roll on the trial of any action * * * for a tax therein assessed may, upon proof that it is either the original tax-roll and warrant or a duly certified copy thereof, * * * be read and used in evidence; and, if it shall appear from said, assessment roll that there is a tax therein assessed against the defendant * * * it shall be prima facie evidence of the legality and regularity of the assessment of the same; and the court before whom the cause may be pending shall proceed to render judgment against the defendant, unless he shall make it appear that he has paid such tax.” § 1016.
Instead of offering in evidence the original roll, warrant and return, the township produced what was claimed to be a copy of the same. The record states that the plaintiff offered in evidence what purported to be a certified copy of the assessment roll of Fife Lake for the year 1876, the tax-roll, the warrant of the supervisor to collect the same and the return of the township treasurer thereto. The offer was entire and embraced a copy of the roll, warrant and return as one piece of evidence, and was so understood evidently. No attempt was made to exhibit a copy of each proceeding separately.
The certificate relied on to show that the roll and warrant exhibited amounted to a “ duly certified copy,” was in these terms:
“ County Treasurer’s Office,
State of Michigan, Grand Traverse County.
“ I, John T. Beadle, treasurer of said county, do hereby certify that the foregoing is a true transcript of the tax-roll of the township of Fife Lake for the year 1876, and the warrant thereto attached now on file in my office, and of the whole thereof, and that I have compared said transcript with said roll.
John T. Beadle, County Treasurer.”
•Preceding this original certificate of the county treasurer, and written on the paper containing the copy of the roll referred to, there appeared what purported to be a copy of the township treasurer’s return to the roll. It was as follows:
“The following personal taxes are uncollected, and the persons against whose property the same were assessed had no personal property out of which I could collect the same:
Frank Johnson,.....$5.06, nothing to levy on.
Erastus Cornell,..... 1.07, “ “ “
Putman & Co, ..... 265.52, lumber.
$271.65
Overseer sued for highway tax of Putman & Co., and prosecuting attorney refused to take the case in court.
C. C. Bailey, Township Treasurer.”
There was evidence that the paper to verify the copy of the roll and warrant, was itself genuine.
In reply to this offer of the copy of the roll, warrant and return the defendant’s counsel made objection: First, that the county treasurer’s certificate of the correctness of the copies was not sufficient, for the reason that it did not show that he compared the original warrant with the copy, and further because it did not refer at all to the township treasurer’s return; second, that if what was offered as a certified copy of return by the township treasurer was well shown to be a true copy by the certificate of the county treasurer, still the return itself was not good as a legal preliminary to a suit for the tax, (1), because it bore no date and afforded no evidence that the act was in due time for the purpose of founding an action; and (2), because it did not show that the parties sued had no property out of which the tax could have been collected." The objections were set aside and the offer sustained.
It is now .contended that by the form given to the objections they did not apply to the township treasurer’s return, but only to the roll, and to that on the ground that the attesting certificate made no reference to it, and it is said that this objection was not a good one to the roll and warrant, because they were admissible whether a return by the township treasurer was indorsed or not.
This is not a correct view of the proceedings. As before intimated the offer of evidence was a unit. It tendered what was written as a document duly certified to be a true copy of an original in the office of the county treasurer and comprising a roll, warrant and township treasurer’s return, and the general objection went .to the whole offer, and in support of it certain grounds were specified. One was that the paper included in the offer as a copy of the township treasurer’s return was not accredited at all. The court overruled the objection and sustained the entire offer. There seems to have been no misunderstanding. The counsel for the township might have changed the offer and reduced it to one only covering the roll and warrant. But it was not done. Under the course which was pursued it was the duty of the court to reject the whole offer if any of the included matters were at the same time inadmissible under a proper objection and were so objected to.
The ruling is again defended on the claim that the effect of the county treasurer’s certificate was to duly certify the township treasurer’s return. The substance of the statement is that in contemplation of the provisions for collecting taxes by actions at law the return of the township treasurer is an integral part of the roll and warrant; and that where the county treasurer’s certificate, without mentioning such return, sufficiently verifies certain copies of the roll and warrant as true, it thereby operates to verify as true a writing on the roll which purports to be a copy of the township treasurer’s original return.
This position is not assented to. The statutes referred to do not regard the roll, warrant and return as consolidated into one document for the purpose of suits for taxes. They are spoken of as distinct legal entities. They arise in different ways and emanate from different sources. The return is referred to as a condition precedent to the right to sue for the tax. § 1014. It is expressly named and the provision that a duly certified copy of the roll and warrant may be read and used in evidence does not suggest that the return is considered merged and open to proof by copy under a certificate which in terms only attests that the copies of the roll and warrant are true ones.
Assuming but not deciding that the township treasurer’s return may be satisfactorily proved in such a ease by means of a copy certified as correct by the county treasurer, yet the fact that the copy tendered is actually so certified ought not to be left equivocal. However reasonable and convenient it may be to prove such documents by copies satisfactorily verified as correct, it is neither safe nor agreeable to law to consider the verifying certificate as applying to substantive and distinct doings that are not clearly enough within its apparent bearing to fairly exclude uncertainty. In sustaining the offer in question the court erred.
The objections to the substance of the return itself require no special attention. It is not certain that evidence might not be adduced to fix the date of the return with legal accuracy if any occasion for it should appear, and it is not to be assumed that inability to collect the tax under the supervisor’s warrant during the time allowed before action could not be well shown.
Third. The tax roll on being delivered to the township treasurer for collection is accompanied by the supervisor’s warrant returnable on the first day of February. This warrant bears some analogy to an execution, and the power of the township treasurer to collect the taxes is confined to such time as the warrant is allowed to fun.
The board of supervisors may prolong the time originally given by an extension of two months, and in case of neglect by the board to grant such extension any township board or common council of a city in the county may extend the time for collection for one month. § 1004. This is the general regulation.
We may next notice provisions for special cases. Whenever the treasurer “shall not be able to collect any tax on personal property on account of the absence of the person so taxed, or for any other cause, the county treasurer, if required, shall issue a new wcurrcmt to the treasurer of the township for such tax, and it shall be the duty of the township treasurer to renew his official bond; and thereupon the said warrant shall be and remain in force, for the purposes of such collection, until the next annual meeting of the board of supervisors, unless the tax is sooner collected/ and the said ' township treasurer shall charge fifteen per cent, interest on all such taxes, from the first day of February imtil the day of collection: provided, said bond shall not be renewed unless the tax uncollected shall exceed five dollars.” § 1013.
The next section provides that in case a tax assessed on personal property shall be returned by a township treasurer for non-payment, it shall be lawful for him to sue in the township name the person or persons against whom the tax was assessed, “ and to have, use, and take all lawful ways and means provided by law for the collection of debts, to enforce the payment of any such tax.”
"When the various provisions are compared and the scheme is understood it will be seen that the power of the township treasurer to take steps to gather or collect taxes is limited. His authority ceases at the expiration of the ’first warrant, whether that be on the first of February or one or two months later in virtue of an extension, unless indeed he is within § 1013 and has not been able to collect some tax on personal property and obtains a new warrant therefor, and, if the amount exceeds $5, renews his official bond; in which case he becomes empowered- to enforce payment of the delinquent, tax. Unless his authority is kept alive or renewed by a new warrant as provided in this section, the circumstance that he is township treasurer does not enable him to collect a tax after the expiration of the first warrant.
If without a warrant he is without the requisite legal com mission to effect collection. . He is in no better plight than a constable without process. His power as a collecting officer is at end. He can neither Collect by making a distress nor by bringing an action. The law foresees that the tax left uncollected may be a large sum and it does not leave the treasurer to act on his own responsibility. It deems it necessary for the public safety to keep a check on his power in the matter of collecting, and to exact suitable security for the tax when collected. Hence the arrangement for a new warrant and new security. That the method is by action and not by distress makes no difference. The township is put to more risk where the treasurer proceeds by action than where he proceeds by distress, and the person assessed incurs the chance of much more expense, and if collection is effected the need of security is the same.
The conclusion is that the treasurer in this case had no authority to put the court in motion and institute this suit.
There was no showing of a new warrant. Moreover the tax was assessed in 1876 and the action was only commenced in August, 1S79. The law gives no power to prolong the township treasurer’s authority to collect a tax assessed on personal property beyond the annual session of the board of supervisors for the year next succeeding that in which the tax is assessed. Hence the treasurer-of Fife Lake in 1879 could not have had any authority to sue for this tax which was assessed three years before. ' The rule of evidence in § 1016 has no bearing>on this question.- .That relates to “the legality and regularity of the assessment,” and not to the competency of a township treasurer to sue.for a tax at any distance of time subsequent to its assessment. The plaintiff in error requested the court to instruct- the jury that under the testimony the township was not authorized to bring the suit, and could not recover. The request should have been given.
Fourth. The evidence was 'uncontradicted that the plaintiffs in errdr were residents of Grand Rapids in May, 1876. The lumber on which the tax in question was imposed was at Fife Lake, and it should have been assessed at Grand, Rapids and not elsewhere unless the circumstances presented a case, under §§ 974 and 978,;or under one of them, for its assessment at Fife Lake. The former section provides that “all goods, wares and merchandise, or stock in trade, including stock employed in the business of the mechanic arts, in any township other than where the owners reside, shall be taxed in the township where the same may be, if the owners hire or occupy a store, mill, shop or warehouse therein, and shall not be taxable where the owners reside.” Subdivision 1. Section 978 reads as follows-: “Partners in mercantile
or other business, whether residing in the same or different townships, may be jointly taxed under the partnership name, in the township where their business is carried on, for all the personal property employed in such business; and, if they have places of business in two or more townships, they shall be taxed in those townships for the proportion of property employed in such townships respectively; and, in case of being so jointly taxed, each partner shall be liable for the whole tax.” .
The judge in charging the jury assumed that there was evidence they might consider that - the plaintiff in error on the second Monday of May; 1876, had a place of business within the meaning of these provisions, at a mill yard at Fife Lake where the lumber was, and this is alleged as error. The point is well taken. The evidence was that the plaintiff in error had a contract with certain mill owners at Fife Lake to saw lumber for them and that they generally kept a man there to attend to piling the lumber and to see to its shipment as directed by the owners at Grand Rapids, and that this man, on one or two occasions and without any authority, sold a few feet at the yard. It further appeared that the quantity cut was very large and that pursuant to orders and directions forwarded by plaintiffs in error from their place of business at Grand Rapids it was shipped from time to time to Southern Michigan and to several states south and east. The bias of the evidence could not be mistaken. It had no tendency to make out the case required by the statute.
In making the property taxable away from the owner’s residence, as belonging to an independent enterprise having a local center, the law refers to an actual business seat or establishment capable of being contemplated as a local concern possessing an identity of its own. It was not intended to include the numberless activities and operations constantly going on in all directions, and which lack this local, fixed and individual character. To have done so would have resulted in unparalleled confusion.
It is unnecessary to go further. The case might have been decided on a single point and in a few words. But as several questions were raised, not only novel but having a public bearing of some importance, the course usually pursued has been departed from, and questions not necessary to the disposition of the case have been dwelt upon.
Whatever fate may attend the suit hereafter, we can do nothing else than reverse the judgment with costs, and grant a new trial.
Campbell, J.
Without definitely expressing an opinion upon the other main questions in the cause, I am of opinion that upon the facts as shown the parties were not liable to taxation in the township where they were assessed.
Mabston, C. J. and Cooley, J. concurred. | [
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Cooley, J.
Headley sued Hackley & McGordon to recover compensation for cutting, hauling and delivering in the Muskegon river a quantity of logs. The performance of the labor was not disputed, but the parties were not agreed as to the construction of the contract in some important particulars, and the amount to which Headley was entitled depended largely upon the determination of these differences. The defendants also claimed to have had a full and complete settlement with Headley, and produced his receipt in evidence thereof. Headley admitted the receipt, but insisted that it was given by him under duress, and the verdict which he obtained in the circuit court was in accordance with this claim.
I. The questions in dispute respecting the construction of the contract concerned the scaling of the logs. The contract was in writing, and bore date August 20, 1874. Headley agreed thereby to cut on specified lands and deliver in the main Miiskegon river the next spring 8,000,000 feet of logs. The logs were to be measured or scaled by a competent person to be selected by Hackley & McGordon, “and in accordance with the standard rules or scales in general use on Muskegon lake and river,” and the expense of scaling was to be mutually borne by the parties.
The dispute respecting the expense of scaling related only to the board of the scaler. Headley boarded him and claimed to recover one-half what it was worth. Defendants offered evidence that it was customary on the Muskegon river for jobbers to board the scalers, at their own expense, but we are of opinion that this was inadmissible. If under the contract with the scaler he was to be furnished his board, then the cost of the board was a part of the expense of scaling, and by the express terms of the contract was to be shared by the parties. If that was not the agreement with him, Headley could only look to the scaler himself for his pay.
This is a small matter; but,the question what scale was to be the standard is one of considerable importance. The evidence tended to show that at the time the contract was entered into, scaling upon the river and lake was in accordance with the “ Scribner rule,” so-called; but that the “ Doyle rule ” was in general use when the logs were cut and delivered, and Iiackley & McGordon had the logs scaled by that. By the new rule the quantity would be so much less than by the one in prior use that the amount Headley would be entitled to receive would be less by some $2000; and it was earnestly contended oh behalf of Headley that the scale intended, as the one in general usé, was the one in general use when the contract was entered into.
We are of opinion, however, that this is not the proper construction. The contract was for the performance of labor in the future, and as the scaling was to be done by third persons, and presumptively by those who were trained to the business, it would be expected they would perform their duties under such rules and according to such standards as were generally accepted at the time their services were called for. Indeed such contracts might contemplate performance at times when it would scarcely be expected that scalers would be familiar with scales in use when they were made. It is true the time that was to elapse between the making of this contract and its performance would be but short, but if it had been many years the question of construction would have been the same; and if we could not suppose under such circumstances that the parties contemplated the scalers should govern their measurements by obsolete and perhaps now unknown rules, neither can we here. It is fair to infer that tlie existing scale was well known to the parties, and that if they intended to be governed by it at a time when it might have ceased to be used, they would have said so in explicit terms. In the absence of an agreement to that effect, we must suppose they intended their logs to be scaled as the logs of others would be at the place and time of scaling.
II. The question of duress on' the part of Hackley & McGordon, in obtaining the discharge, remains. The paper reads as follows:
“ Muskegon, Mich., August 3, 1875.
Received from Hackley & McGordon their note for four thousand dollars, payable in thirty days, at First National Bank, Grand Rapids, which is in full for all claims of every kind and nature which I have against said Hackley & McGordon.
Witness: Thomas Hume. John Headley.”
Headley’s account of the circumstances under which this receipt was given is in substance as follows: On August 3, 1875, he went to Muskegon, the place of business of Hackley & McGordon, from his home in Kent county, for the purpose of collecting the balance which he claimed was due him under the contract. The amount he claimed was upwards of $6200, estimating the logs by the Scribner scale. He had an interview with Hackley in the morning, who insisted that the estimate should be according to the Doyle scale, and who also claimed that he had made payments to others amounting to some $1400 which Headley should allow. Headley did not admit these payments, and denied his liability for them if they had been made. Hackley told Headley to come in again in the afternoon, and when he did so Hackley said to him: “ My figures show there is 4260 and odd dollars in round numbers your due, and I will just give you $4000. I will give you our note for $4000.” To this Headley replied: “ I cannot take that; it is not right, and you know it. There is over $2000 besides that belongs to me, and you know it.” Hackley replied: “ That is the best I will do with you.” Headley said: “ I cannot take that, Mr. Hackley,” and Hackley replied, “ You do the next best thing you are a mind to. You can sue me if you please.” Headley then said : “I cannot afford to sue you, because I have got to have the money, and I cannot wait for it. If I fail to get the money to-day, I shall probably be ruined financially, because I have made no other arrangement to get the money only on this particular matter.” Finally he took the note and gave the receipt, because at the time he could do nothing better, and in the belief that he would be financially ruined unless he had immediately the money that was offered him, or paper by means of which the money might be obtained.
If this statement is correct, the defendants not only took a most unjust advantage of Headley, but they obtained a receipt which, to the extent that it assumed to discharge anything not honestly in dispute between the parties, and known by them to be owing to Headley beyond the sum received, was without consideration and ineffectual. But was it a receipt obtained by duress ? That is the question which the record presents. The circuit judge was of opinion that if the jury believed the statement of Headley they would be justified in finding that duress existed; basing his opinion largely upon the opinion of this Court in Vyne v. Qlenn 41 Mich. 112.
Duress exists when one by the unlawful act of another is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will. It is commonly said to be of either the person or the goods of the party. Duress of the person is either by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted. It is not pretended that duress of the person existed in this case; it is if anything duress of goods, or at least, of that nature, and properly enough classed with duress of goods. Duress of goods may exist when one is compelled to submit to an illegal exaction in order to obtain them from one who has them in possession but refuses to surrender them, unless the exaction is submitted to.
The leading case involving duress of goods is Astley v. Reynolds 2 Strange, 915. The plaintiff had pledged goods for £20, and when he offered to redeem them, the pawnbroker refused to surrender them unless he was paid £10 for interest. The plaintiff submitted to the exaction, but was held entitled to recover back all that had been unlawfully demanded and taken. This, say the court, “is a payment by compulsion: the plaintiff might have such an immediate want of his goods that an action of trover would not do his business: where the rule volenti non fit imguriq is applied, it must be when the party had his freedom of exercising his will, which this man had not: we must take it he paid the money relying on his legal remedy to get it back again.” The principle of this case was approved in Smith v. Bromley Doug. 696, and also in Ashmole v. Wainwright 2 Q. B. 837. The latter was a suit to recover back excessive charges paid to- common carriers who refused until payment was made to deliver the goods for the carriage of which the charges were made. There has never been any doubt but recovery could be had under such circumstances. Harmony v. Bingham 12 N. Y. 99. The case is like it of one having securities in his hands which he refuses -to surrender until illegal commissions are paid. Scholey v. Mumford 60 N. Y. 498. So if. illegal tolls are demanded, for passing a raft of lumber, and the owner pays them to liberate his raft, he may recover back what he pays. Chase v. Dwinal 7 Me. 134. Other cases in support of the same principle are Shaw v. Woodcock 7 B. & C. 73; Nelson v. Suddarth 1 H. & Munf. 350; White v. Heylman 34 Penn. St. 142; Sasportas v. Jennings 1 Bay, 470; Collins v. Westbury 2 Bay 211; Crawford v. Cato 22 Ga. 594. So one may recover back money which he pays to release his goods from an attachment which is sued out with knowledge on the part of the plaintiff that he has no cause of action. Chandler v. Sanger 114 Mass. 364. See Spaids v. Barrett 57 Ill. 289. Nor is the principle confined to payments made to recover goods: it applies equally well when money is extorted as a condition to the exercise by the party of any other legal right; for example when a corporation refuses to suffer a lawful transfer of stock till the exaction is submitted to: Bates v. Insurance Co. 3 Johns. Cas. 238; or a creditor witliolds his certificate from a bankrupt. Smith v. Bromley Doug. 696. And the mere threat to employ color-able legal authority to compel payment of an unfounded claim is such duress as will support an action to recover back what is paid under it. Beckwith v. Frisbie 32 Vt. 559; Adams v. Reeves 68 N. C. 134; Briggs v. Lewiston 29 Me. 472; Grim v. School District 57 Penn. St. 433; First Nat. Bank v. Watkins 21 Mich. 483.
But where the party threatens nothing which he has not a legal right to perform, there is no duress. Skeate v. Beale 11 Ad. & El. 983; Preston v. Boston 12 Pick. 14. When therefore a judgment creditor threatens to levy his execution on the debtor’s goods, and under fear of the levy the debtor executes and delivers a note for the amount, with sureties, the note cannot be avoided for duress. Wilcox v. Howland 23 Pick. 167. Many other cases might be cited, but it is wholly unnecessary. We have examined all to which our attention has been directed, and none are more favorable to the plaintiff’s case than those above referred to. Some of them are much less so; notably Atlee v. Backhouse 3 M. & W. 633; Hall v. Schultz 4 Johns. 240; Silliman v. United States 101 U. S. 465.
In what did the alleged duress consist in the present case ? Merely in this: that the debtors refused to pay on demand a debt already due, though the plaintiff was in great need of the money and might be financially ruined in case he failed to obtain it. It is not pretended that Hackley & McGfordon liad done anything to bring Headley to the condition which made this money so important to him at this very time, or that they were in any manner responsible for his pecuniary embarrassment except as they failed to pay this demand. The duress, then, is to be found exclusively in their failure to meet promptly their pecuniary obligation. But this, according to the plaintiff’s claim, would have constituted no duress whatever if he had not happened to be in pecuniary straits; and the validity of negotiations, according to this claim, must be determined, not by the defendants’ conduct, but by the plaintiff’s necessities. The same contract which would be valid if made with a man easy in his circumstances, becomes invalid when the contracting party is pressed with the necessity of immediately meeting his bank paper. But ■ this would be a most dangerous, as well as a most uncquál doctrine ; and if accepted, no one could well know when he would be safe in dealing on the ordinary terms of negotiation with a party who professed to be in great need.
The case of Vyne v. Glenn 41 Mich. 112, differs essentially from this. There was not a simple withholding of moneys in that case. The decision was made upon facts found by referees who reported that the settlement upon which the defendant relied was made at Chicago, which was a long distance from plaintiff’s home and place of business ; that the defendant forced the plaintiff into the settlement against his will, by taking advantage of his pecuniary necessities, by informing plaintiff that he had taken steps to stop the payment of money due to the plaintiff from other parties, and that he had stopped the payment of a part of such moneys; that defendant knew the necessities and financial embarrassments in which the plaintiff was involved, and knew that if he failed to get the money so due to him he would be ruined financially; that plaintiff consented to such settlement only in order to get the money due to him, as aforesaid, and the payment of which was stopped by defendant, and which he must have to save him from financial ruin. The report, therefore, showed • the same financial embarrassment and the same great need of money which is claimed existed in this case, and the same withholding of moneys lawfully due, but it showed over and above all that an unlawful interference by defendant between the plaintiff and other debtors, by means of which he had stopped the payment to plaintiff of sums due to him from such other debtors. It was this keeping of other moneys from the plaintiff’s hands, - and not the refusal by defendant to pay his own debt, which was the ruling fact in that case, and which was equivalent, in our opinion, to duress of goods.
These views render a reversal of the judgment necessary, and the ease will be remanded for a new trial with costs to the plaintiffs in error.
The other Justices concurred. | [
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] |
Graves, J.
A reference to a few facts will be sufficient to dispose of this case. Lewis H. Harmon made a parol lease of certain premises to one William Nestle for one year from January, 1876, and in the course of the fall Nestle sowed several acres to wheat. In the winter following and after the expiration of the year, Nestle removed from the premises and Harmon took possession. In January, 1877, Nestle executed a chattel mortgage on the wheat to one Lamb, to indemnify him for being surety in a replevin bond given in a case brought by Nestle against Harmon. The replevin suit was decided against Nestle, and Harmon sued on the bond, and having recovered judgment the plaintiff [Estey] satisfied it. Harmon gave defendant [Smith] a bill, of sale of the wheat and the latter cut it and applied it to his own use. About a 3rear later and in August, 1879, .Nestle assigned his right to Estey and he sued Smith in trespass for the cutting and carrying away of the wheat. The defendant pleaded the statutory general issue, and under the rulings of the circuit judge, the jury returned a verdict for the defendant.
In the course of his defense Smith gave evidence that Lamb agreed with him before harvest that he should have the benefit and protection of his mortgage on condition of seeing Lamb kept harmless on the bond, and that with such agreement and understanding Lamb turned over his interest in the mortgage by verbal agreement to defendant. Having made this proof Smith offered the mortgage in evidence. The plaintiff’s counsel objected that it was inadmissible under the pleadings, but the court admitted it. It is now urged that this was matter of justification or excuse and was hence incompetent under the general, issue in the absence of a special notice.
"We think the tendency of the proof was more radical than the objection assumes. The gist of the declaration is that it was Nestle’s wheat that was taken and carried away and the plea puts every part of it in issue. It not only involves a denial 'of the taking, but a denial of the taking of wheat belonging to Nestle, and hence a denial of the ownership of Nestle at the time of the alleged trespass is in issue. Such is the rule at common law where the action is brought by the party supposed to have been injured. Stephens’ Plead. 174; 6 Robinson’s Pr. 649; Bartholomew v. Ireland Andr. 108 : Dodd v. Kyffin 7 Term 350; Argent v. Durrant 8 Term 403; Whittington v. Boxall 5 Ad. & El. (N. S.) 143; Kav anagh v. Gudge 7 Man. & Gr. 320. And there is no reason for an exception where the suit is by an assignee.
The proof in question we think bore on Nestle’s title to the wheat and somewhat also on the fact of his possession. Moreover it tended to throw some light on the controverted question whether Nestle did not abandon the wheat to Harrnon.
A charge was requested that if the defendant intended, when he took possession of the wheat, to go on and dispose of it in defiance of the mortgage and in defiance of its provisions and in defiance of any rights which the mortgagor had in the property and without any regard then to the mortgage or its conditions, the verdict must be for the plaintiff. The refusal of this request was not error. It purposed to make the case turn on the way in which the defendant’s thoughts were occupied, and independently of the considertion of ownership. If his conduct was not in itself actionable, it could not be made so by any particular mental attitude towards the property. The unexpressed operations of his mind did not amount to a trespass.
Nothing further is urged against the judgment and it must be affirmed with costs.
The other Justices concurred. | [
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] |
. Graves, J.
On the 17th of May, 1878, the parties entered into a written contract by which Pattison for certain considerations therein stated agreed to furnish certain saw-logs to the plaintiffs. He furnished a part of the number but failed to supply the whole. It was part of the agreement of the plaintiffs that Pattison should not pay over fifty cents a thousand for towing, nor more than one dollar per thousand feet stumpage on any land owned by Lac la Belle Company, or the Marquette Lumber Company, or William L. Wetmore and Bay Furnace Company.
The plaintiffs brought this action to recover damages of Pattison for his failure to fulfil the contract, and he claimed as matter of defense that it was the intent of their stipulation in the contract that he should be allowed to get the logs on the lands mentioned at one dollar per thousand for the stumpage, and should not be compelled to pay more than fifty cents per thousand for their towage, and that the plaintiffs failed to secure to him the right to get the logs on said lands, and the owners forbade and expelled him. For this he claimed damage by way of recoupment, and under the charge of the court the jury found in his favor to the amount of $5.
Several days subsequent to the contract between the plaintiffs and defendant the former made an agreement with a car company at Michigan City, to furnish them with the lumber expected to be sawed out of these logs. As a consequence of defendant’s failure to perform, the plaintiffs were unable to keep their agreement with the car company, and they insist that their loss thus occasioned was a proper measure of damages.
This is not a correct view. The logs were not contracted for on the strength of the lumber agreement. The latter had no existence when the former was entered into. The plaintiffs after having made their, contract with the defendant were at liberty, no doubt, to embark in such enterprises as they thought proper on the strength of it. It was a question of business prudence how far it would be wise or safe to rely on the agreement with defendant. But they were not empowered to enter into such scheme or arrangement as they might choose, in reliance on his contract, and make him responsible in the event of his failure for whatever losses might happen through such secondary operations. To hold otherwise would be to visit the failure of performance with an amount of liability not dependent on the contract, but on the conjectural possibilities of any scheme built upon the contract by the party to whom, performance is due. The damages for which one may be held liable in a contract of this nature, are such as flow directly from his own default, and which it is reasonable to suppose were within the contemplation of the parties on their entering into the contract.
It is said that the provision in the contract respecting the cost of towage and stumpage went no further than to secure Pattison against higher rates for any logs which he might be able to get on the lands referred to and did not involve any agreement that he should be privileged to obtain the logs there, and that consequently the judge erred in permitting him to recoup damages for having been stopped from cutting on such lands.
The language is very obscure but, on the whole, the construction claimed seems too narrow. The implication is unavoidable that the parties contemplated that the logs were to be obtained there, and that in contracting they proceeded under the expectation that they would be. Unless this was the understanding we cannot account for the pains taken to insert this stipulation, nor for the peculiar form given to it. The plaintiffs appear to have assumed to have power to fix the price of the stumpage,-and this naturally presupposes, in the absence of any explanation otherwise, that they claimed the right to dispose of it, and it is not going far to say that the intent was to assure permission to the defendant to cut on these lands. This portion of the contract is the agreement of the plaintiffs and its obscurity justifies an interpretation most strongly against them.
We are not satisfied that there is any error in the judgment, and it must be affirmed with costs.
Campbell, J. and Mabston, C. J. concurred.
Cooley J. did not sit in this case. | [
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] |
Campbell, J.
In January, 1873, Reynolds conveyed to defendant ninety acres of land in Washtenaw county at an agreed price of sixty dollars per acre, amounting in all to $5400.
When this land was sold it had on it about thirty acres of wheat, of which Reynolds claims it was agreed he should retain thirteen and one-half acres, of which twelve were in one parcel and the remainder in another field. These were also three mortgages against complainant at that date — one for $117 due to L. D. Watkins, one to Charles Wells on which there was to become due $2245, with interest from 1868, but which was not payable for some time thereafter, and a smaller mortgage to Wells which covered only a small part of these premises with adjacent lands, which had been originally for $375, but on which the principal had been due several years, and with interest amounted to something more than $600.
Complainant claims that defendant purchased subject to all three of these mortgages, and was to pay and did pay the remainder of the $5400 partly in cash, and partly in a mortgage on lands in Jackson county of $900.
Defendant admits that he agreed to pay the two mortgages which covered his farm, but denies that he agreed to except the wheat, or to pay the smaller Wells mortgage, and insists that he paid the full balance above the $900, in cash.
The deed given by complainant was an ordinary warranty deed with no exceptions. In 1876 this bill was filed to correct this deed by excepting the wheat and making the grant subject to all the mortgages.
The $900 had been paid, as well as the Watkins mortgage add most of the large Wells mortgage, which it was understood between Wells and defendant the latter was to pay in full.
Defendant gathered the wheat. He also from the beginning refused to recognize the smaller Wells mortgage as binding on him.
The court below decreed for complainant for the wheat and all the mortgages. Defendant appeals.
In this case the testimony of the parties and of their wives is positively contradictory, upon all of the points involved. The outside testimony does not appear at all conclusive. There are many circumstances which in our view rather tend to confirm the statements of the defendant. But it is enough to say that without a very convincing preponderance of evidence in favor of complainant no relief can be granted. We do not think there is such a preponderance or any preponderance and therefore no decree should have been granted.
The answer is sufficient to determine, in any future controversy, the liability of defendant to pay what is left of the large Wells mortgage. It is not clear that any further relief could have been granted in any case, and nothing is shown to indicate that defendant would ever have objected to sign any proper instrument to that effect.
The decree must be reversed and the bill dismissed with costs.
Marston, C. J. concurred. | [
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] |
Cooley, J.
Plaintiff in error was arrested and brought before a justice of the peace on a charge of assault and battery. On the charge being read to him he pleaded orally not guilty and a former conviction in bar. The justice disregarded the plea of a former conviction because it was not in writing and sworn to, and proceeded to try, convict and sentence the party on the issue presented by the other plea. This conviction has been affirmed in the circuit court.
It is not claimed by the Attorney-General that the justice was right in holding the special plea in bar to be of no force because not in writing, but it is urged that the plea itself was a nullity because of want of substance. It specified no prosecution, no court, no time or place, but merely in general terms set up a former conviction. But in answer to this it is sufficient to say that in case of an oral plea the justice merely enters what he deems to be its substance on the docket; and when no objection is taken to it but one that is manifestly untenable, we must suppose it was in other respects sufficient. Besides, it does not appear that the prosecution objected to the special plea, either for form or substance, by demurrer or otherwise; and the justice should not have volunteered an objection which the prosecution, apparently, were disposed to waive.
It is said, however, that it sufficiently appears from the record that the supposed former conviction was a conviction of disorderly conduct under a village by-law; and that such a conviction could constitute no bar. It is true there is an affidavit appearing in the record in which plaintiff in error affirms that he has been so convicted of disorderly conduct, and that the cause for which he was convicted “ is and was the same identical transaction and cause ” for which he was then under arrest; but this is not legally inconsistent with his plea. He may have been convicted under the general statute and under village ordinance also.
The judgment must be reversed, and the plaintiff in error discharged from his recognizance.
The other Justices concurred. | [
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Campbell, J.
The only question in this case is whether the note in suit is negotiable so as to protect holders without notice.
It is a joint and several note signed by the two Van Blarcoms, payable to the order of one of them, Charles H. Van Blarcom, for $300, payable in the body of the note at 3 months with interest at 10 per cent. Appended to it was this clause: “ The makers and endorsers of this note expressly agree that the payee, or his assigns, may extend the time of payment thereof indefinitely, as he or they may see fit.”
The court below held that this destroyed the negotiability, because it rendered the time of payment uncertain.
Plaintiffs in error claim that this clause is void, and that the note should stand without it. But it cannot be held void unless it is either illegal or nugatory as meaning nothing. Parties may make such innocent-bargains as they choose, and the effect will not be to destroy the legality of the instrument, although it may destroy its-negotiability.
By the terms of this note, which must be read subject to the condition,-it was not payable absolutely three months after date, or at any other one time. The time of payment could be postponed not merely once but as often as either Charles H. Van Blarcom or his assigns might think it desirable. There is nothing on the face of the note whereby any one can tell either directly or by reference to any particular event, at what period this paper will become absolutely payable. We cannot conceive how this can be treated as not payable on a contingency.
It would not be easy to harmonize all the cases on this subject, and we shall not attempt to do so. If any of them maintain that the time of payment may be indefinitely shifted at the will of any of the parties, we cannot accept the doctrine. Public policy would not be furthered, and honesty would not be subserved by encouraging the negotiation of paper which is so palpably uncertain on its face that no good business man can look at it without seeing that it must have originated in peculiar dealings which would probably, if known, qualify its obligation.
As between the original parties to this note the circumstances of its issue can be explained, and when explained it appears that this was only one of various contemporaneous written contracts which must be read together. When so read the condition in question is shown to have had a reasonable and important purpose, and to have been limited by the other writing. The negotiation of the note was a fraud on the makers, if their claims are true, and nothing but the supposed negotiable quality of the note could deprive them of their defense. We think the condition in question reduced the paper to a simple contract and destroyed its quality as a negotiable note.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
Mrs. Holden, the plaintiff, has replevied in this suit certain wheat grown by one Fisher, and mortgaged to her October 30, 1878. The defendant claims the same wheat under an attachment levied October 28, 1878. The first question presented by the record is whether this attachment has any validity; if not, the defendant makes out no defense whatever.
The attachment was issued October 28 and might have been served on any day not later than November 1. On October 31 the constable made return to it as follows:
“By virtue of the within attachment, I, D. O. Banney, on the 28th day of Oct., A. D. 1878, seized the goods and chattels of the defendant, mentioned in the inventory, of which the annexed is a copy, and on the same day I served on the defendant a copy of the within attachment and of the said inventory, duly certified by me, by posting a copy on the door of defendant’s house, and on the 31st day of October, A. D. 1878,1 personally attempted to serve the within attachment on the defendant by reading the same and offering a copy to him at the house of Daniel Dean, but he run away. I could not deliver a copy to him.
D. O. Banney, Constable.”
Dated October 31st, 1878.
The inventory attached described the wheat now in question as the sole property seized.
The justice treated this return as a return of personal service, and on the return day of the writ proceeded to hear and give judgment in the case, Fisher not appearing. Execution was taken upon the judgment and placed in the hands ■of the defendant as constable, and he made levy upon the wheat by virtue thereof.
If it had appeared in the case that the constable, in the presence and hearing of Fisher, had attempted to make •service of the attachment and inventory upon him, and that Fisher had run away in order to prevent such service being made, we might possibly agree with the justice that the very attempt sufficiently accomplished the purpose of the statutory regulations respecting service. It would then have been ■evident that Fisher was aware of the officer’s business with him, and the court might justly go a great way in preventing Fisher taking advantage of his own wrong.
But it did not appear from the officer’s return that he was ever in the presence or hearing of Fisher, or that Fisher was aware he had any writ against him, or that Fisher’s running away had anything to do with the institution of the attachment suit. It is perfectly consistent with all that appears that Fisher’s running off may have been wholly blameless, or if not, that he may have fled from some other writ, real or suspected, or from anything else rather than the writ now in question. The mere act of running could not prove both that Fisher knew of this writ and also that he ran because of it. It would be a most violent assumption for any court or officer thus to hold.
The justice having 'proceeded to judgment without authority of law, his judgment was void. The defendant having thus failed in his defense, the judgment in his favor must be reversed with costs, and a new trial ordered.
The other Justices concurred. | [
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Marston, C. J.
Coyne as assignee brought assumpsit for contribution upon a general average1 claim. It appeared on the trial that immediately on the arrival of the vessel in Detroit, she was libelled in the United States court for the recovery of certain claims, and amongst them claims for towing the vessel from Port Huron, where she was aground, to Detroit, and the wages of the captain and crew. It also appeared that the vessel was sold under a decree of said court, that eighty per cent, of such claims were paid out of the proceeds, except wages which were paid in full, and that a portion of the proceeds were used to pay costs and proctor’s fees in said suits, and that but for the payment of these the other claims might have been paid in full, and the court permitted the jury to take into consideration the payment of such costs and fees. Just what part this matter of costs and fees played in the case is not clearly apparent.
There can be no doubt but that a surety, or one standing in such a position, will be justified in employing counsel and incurring costs and expenses, to which his co-sureties must afterwards contribute, in defending against illegal demands. Nor will the right of the surety to recover in such cases be made dependent upon his success in the easeá, as that would compel him to act at his peril. It is sufficient if he acted as a prudent man would, in the light of facts and circumstances, showing a probability of success in whole or in part sufficient to justify the expense likely to be incurred. The foundation for the right of contribution in such cases is the fact that the expense was incurred in defending for the common benefit. This will not, therefore, permit him to incur expense in uselessly resisting a legal demand, or in creating needless or unnecessary costs and expenses. Knight v. Hughes 3 C. & P. 467; Henry v. Goldney 15 M. & W. 494; Kemp v. Finden 12 M. & W. 421; Davis v. Emerson 17 Me. 64. I am also of opinion that the mere fact of liability, and even of a judgment thereon, is not sufficient to entitle the surety to enforce contribution. There must be a payment or such assumption of the demand, as imposes upon the claimant more than his share, and a corresponding release of those against whom he claims. The surety is not the agent of the common creditor to enforce the demand, as the latter would not be bound by his act, and until payment he may look to any or all the others, and they should not thus be put to needless litigation and the danger of having to respond to the principal, notwithstanding the payment by the surety.
The record in this case does not negative the fact that evi denee was given on the trial which, under the above views, would have and did justify the court in the rulings made. No error, therefore, is apparent of record in this part of the case.
The lumber lightered off the vessel while aground, was not liable to contribute to the expenses afterwards incurred in saving the vessel and balance of the cargo. The expense afterwards incurred was not for the protection of this lumber nor necessary for such purpose. It had its own risks and perils to run while being-forwarded to its destination. Hugg v. Baltimore etc. Co. 35 Md. 414; Job v. Langton 6 El. &. Bl. 779.
It appeared that the vessel was sold under the decree of the United States court in the eases referred to for upwards of $1600, while evidence was introduced tending to show her value to have been $2000, and the jury was permitted to find either value as the basis of their verdict. This we are of opinion was erroneous. The vessel was actually sold and realized to the owner in the payment of the claims against her, upwards of $1600. In any action thereafter arising between such owner or his assignee and others interested in such claims for contribution, the actual amount for which the vessel was sold must be accepted as the true value. If the owner, in defending without good cause claims apparently legal, or otherwise, caused a sale and sacrifice of the vessel for less than her value, there would be good reason for permitting the actual value to be shown. Where, however, a sale has been made, even at a price above what some might consider the actual value, all interested therein should have the full benefit and advantage thereof.
We are of opinion, therefore, that for these reasons the judgment should be reversed with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Grates, J.
The Alpena Lumber Company is a domestic corporation which was organized for manufacturing purposes under our general law, in the year 1874. It recovered a judgment in the circuit court for Alpena county against Richardson & Go. for about a thousand dollars and the judgment was affirmed in this court at the January term for 1879: 40 Mich. 203.
During the pendency of that suit the corporation claimed to be insolvent and took measures to assign all its property to Bishop and Beekman for the benefit of its creditors.
The proceedings to accomplish this end were singular. The directors met at Cleveland in the State of Ohio on the 27th of July, 1877, “and finding that the company was unable to meet its paper at maturity ” unanimously resolved that it “ make an assignment of all its property and effects both real and personal to Jesse P. Bishop of Cleveland, Ohio, and John G. Beekman of Alpena, Michigan, for the equal benefit of the creditors of said company” and that the president proceed to “ execute on behalf of the company the necessary papers.” In pursuance of this resolve an instrument was forthwith drawn up and executed. It purported to convey to Bishop and Beekman the entire property and effects of the corporation in Ohio, Michigan and elsewhere upon trust for the equal benefit of all the creditors. But it provided, expressly, that the assignees might sell at public or private sale upon such terms as they might deem for the best “ interest of the creditors, and either for cash or upon reasonable credit as they might deem best, and that they should have the right to manufacture lumber from the pine logs assigned in case they should consider it for the interest of the creditors so to do in order to dispose of the same to the best advantage.”
Bishop immediately endorsed his acceptance. But during the forenoon of the next day, namely July 28th, the directors met in the city of Detroit and unanimously ratified the action had at the Cleveland meeting and' directed the president to renew the execution of the instrument there made. In compliance with this direction a formal paper was executed incorporating the first, and constituting a complete Michigan transaction. The assignees immediately endorsed their acceptance of the trust contained in it, and both papers were soon after recorded in the office of the register of deeds. As soon as the transaction was completed by the ratification and re-execution on the 28th, the assignees assumed exclusive possession of the general property, and have since continued to handle it, the corporation not having had any control whatever. A large portion was disposed of.
After the lapse of some fifteen months during which time the assignees were proceeding in the execution of the trusts the corporation was informed that the transaction was not sufficient to bind Michigan creditors and that they might avoid it on the ground that power was given to dispose of the assets on credit. Influenced by this advice, the directors came together at Cleveland in an informal way on the 14th of November, 1878, but not as a meeting of the board, and a conference was had about making a new assignment. The result was that the president was directed by general consent to make one, and a third instrument was then executed and accepted by the assignees. It was framed as an original assignment and made no reference to prior transactions. There was no re-assignment by the assignees nor any interference with their dispositions or possession and, so far as appears, no creditors had refused to acquiesce in what had been done. The instrument assumed to express its purpose in these terms: “ The object of this conveyance being to include all the property and effects of said company of every kind and wherever situated, to have and to hold the same to said Bishop and Beekman and their successors for the equal ■pro rata benefit of the creditors of said company, with full power on the part of said trustees to sell and dispose of all said property and effects and convert the same into money for the purposes aforesaid.”
The defendant in error, being a Michigan creditor of the corporation, and having brought suit for the demand in the circuit court for the county of Alpena, proceeded in January, 1879, against Bichardson & Co. as garnishees, and they in due time appeared and made disclosure. They admitted their indebtedness under the judgment but were unable to say whether it was payable to the corporation or to the assignees; and the latter at once intervened as claimants and denied the right of the garnishee plaintiff to intercept the fund. The controversy was brought to issue and tried before a jury, and the circuit judge directed a verdict against the assignees and they allege error. The whole evidence is returned, and the first question is whether, on their own showing, they made a case on which the jury could have found in their favor under a proper view of the law, because if they did not the result is correct.
The whole foundation of their right is the proceeding by the corporation and its officers to transfer the judgment and other property for the benefit of creditors.
The plaintiffs claimed that they were lawfully vested with the title, by means of the assignment, and it was incumbent on them to establish this claim. They were bound to show a good title, not merely as against the corporation or passive creditors, but as against the defendant in error who by proper adverse proceedings had put the question to the proof.
There is no occasion to discuss the influence of foreign law or the obligations of comity. The paper made on the 28th of July was executed here and was in every respect a domestic transaction. As against the attachment of the judgment under the garnishee process it is void in conse quenee of the power inserted to sell on credit: Sutton v. Hanford 11 Mich. 513.
If the paper made the day previous in the state of Ohio can be said to have a distinct existence, it is of no greater force in this contention than the other. Granting all that can be claimed for it as an intended disposition of Michigan property, and it must be then admitted that it was made with express reference to this State, and with the positive intent that its first taking effect on such property, including the judgment in question, should be in this State. The object was to convey the entire assets found here, and the executory operation of the instrument as a conveyance of such assets was meant to take place here. For the purpose of deciding on its validity in this controversy it must be viewed as though it had been made in this State.
It remains to notice the third paper executed by the president of the corporation1 in Ohio nearly a year and a half later. This paper was made without any direct sanction of the corporation. The assignees contend that it was authorized by the resolution of the directors on the prior occasion. The explanation is that the president was then directed to provide and execute valid papers and, having failed, the duty and power remained. On this ground it is claimed that the last assignment was an act of the coiqjoration and a lawful transfer. The facts exclude all implication of a purpose that the president should execute any general assignment for the benefit of creditors on his own authority, and we are not satisfied that he had power .to do so.
The case is certain that there was to be no transfer except as ordered by the directors. Can this last instrument be referred to the resolution made by the directors in July, for the purpose of making out title in the assignees against this creditor for the corporation ? The Court think not. The power conveyed by the resolution was acted upon, and the assignments made under it were valid against the corporation and valid, also, as regards creditors and others not attempting avoidance. And for the year and some months elapsing between the transactions, and during which period the assignees exercised full control, there was no attempt to avoid or defeat the transfer. Moreover the assignees never restored anything or offered to renounce their trust or waive any right. They were not disturbed and they proceeded as though an avoidance of the transfer was impossible.
Under these circumstances it is the opinion of the court that the power given by the directors was exhausted before the last paper was made and that as no new delegation of power took place, the assignees cannot make title to the judgment on the strength of that paper against the garnishee plaintiff.
The result is that the assignees failed to make their claim good and hence the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
This is a cause wherein the bill was filed in aid of an execution levy. Jonathan Welsh is the execution debtor, James Welsh, his brother and grantee, and Sarah F. Belknap a mortgagee from James. The facts are not complicated. Jonathan Welsh in anticipation of proceedings against him by complainant at law, is charged to have conveyed lot 1 in block 8 of private claim 609 in Detroit, on the 15th of December, 1874, to his brother James, for a nominal consideration of $2000. The debt for which complainant prosecutes was for moneys belonging to the children of Alpheus Coon, of whom James was guardian, but these funds had got into the hands of Jonathan. Some delays were incurred in getting matters into shape for suit, and it was during this period that the deed was made which is claimed to have been fraudulent. In February, 1875, complainant brought suit in attachment and this lot was attached. In July, 1875, a verdict was obtained, but for some reason judgment was not rendered until January, 1876, after which executions were issued, and the land levied on. James claims to have paid down $100, and given mortgages for $1900 in all, partly on this' property and partly on other property of his own. On the 15th of September, 1875, the brothers made arrangements to borrow of Mrs. Belknap, through her agent Mr. Ward of Detroit, $2000 of which a sufficient amount was to be paid to extinguish complainant’s claim and discharge the attachment, of which Mr. Ward had got knowledge and which was to be got rid of so as to clear the title. By the same arrangement the mortgages from James were to be discharged also. An attempt was made by a clerk of Mr. Ward accompanying Jonathan to tender the amount due complainant to Mr. Prentis his attorney. Before furnishing the money Mr. Ward got a mortgage for $2000 on lot 1 and some other property, and discharges of James Welsh’s mortgages. Prentis did not accept the tender. Ward then concluded not to let Welsh have more than $1200, and paid this over the same day, and endorsed down the mortgage to Mrs. Belknap to that sum. No money was paid into court, and payment of the complainant’s debt was refused, and Ward seems to have supposed the tender cleared the title. The court below dismissed the bill, probably on this ground.
There can be no doubt of the invalidity of the deed to James, as against creditors. He does not pretend to have paid more than $100 previous to the discharge of his, mortgages, and it is doubtful whether he paid that. The brothers were both mixed up in the affairs of this trust fund, and it is plaip that the purpose of the deed was to hamper the title. Mrs. Belknap’s counsel recognized the attachment as a lien which must be got rid of to clear the title, and required the money to be tendered for that purpose. Mrs. Belknap, therefore, was not a mortgagee without notice.
We do not think the tender amounted to anything. Even if we assume the effect of a tender at that time would have been what the parties appear to have supposed, it was not made in such manner and circumstances as to sustain it. It was made in the street, when no costs had been taxed nr could be taxed regularly, without any computation or means of computation that would not have required delay, and upon the idea that the claim was in judgment, when no judgment had been entered.
No sum of money whatever was tendered, and no tender in the proper sense made at all. There was no more than a proposition or offer to pay what might be ascertained as the proper sum, but the parties tendering had not informed themselves and took no steps to do so beyond preparing a receipt in blank to be filled up when the supposed judgment and interest should be figured up. This receipt purported to discharge the judgment. Prentis refused to sign it. There is some conflict as to what reason he gave, but inasmuch as no sum of money whatever was produced or offered, all that it could have amounted to at best was a manifestation of readiness to make payment when the proper amount was figured up. This was no tender of payment. But if it had been, inasmuch as the tender was not kept good, it could not have availed in this ease. It was not made on a judgment, which is a finality, but during the pendency of the suit, when it had not been judicially determined that the verdict should stand as the basis of a judgment. The effect of a tender during suit or before judgment must always depend more or less on the views of the court, and rarely affects more than the liability for costs. It cannot discharge the debt until paid. The law has provided other ways of dissolving or releasing attachments, and we are not aware of any rule which would make a tender have that operation. And if it did, that would not make the transfer valid or prevent assailing it on execution except as to intervening bona fide purchasers or encumbrancers; and no one in this suit holds that position.
The complainant is entitled to a decree holding the deed to James and the mortgage to Mrs. Belknap void as against the execution levy, and ordering .tlie proper steps to make this relief effectual.
The decree dismissing the bill must be reversed with costs of both courts and a proper decree entered in accordance with these views.
The other Justices concurred. | [
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Graves, J.
Peters having recovered before a justice of the peace in a suit brought on an account stated and the judgment having been affirmed on certiorari the company has brought error. The point of primary importance under the objections taken is whether any substantial part of the cause of action was wholly destitute of proof. Because if such was the case the judgment has no foundation and should be reversed. Cicotte v. Morse 8 Mich. 424. The question is fairly presented by the record, because the justice certifies that his return contains all the testimony. The evidence tended to show that some person drawing ties to the railway left the fence down and that several sheep belonging to Peters passed through and were killed by a train on the company’s road. There was likewise evidence that three persons appraised the value of the sheep. No proof was given to fix negligence on either party.
The theory on which the judgment is supported is that the persons who agreed upon the value were appointed by the parties for that purpose and were in fact arbitrators, and that their finding was the act of the parties. It is a sufficient reply to this idea to say that the record does not bear it out. There is no evidence whatever that the railway company became a party to the proceedings to ascertain the value of the sheep. There is not a scintilla of proof that it took any part in the choice of the persons spoken of as appraisers, or in any way recognized them as authorized to bind it by anything they might do. For all that appears they acted solely at the instance of Peters and not at all in character of umpires mutually agreed on. The case therefore fails on the only ground attempted to be. urged in its defence.
The judgment below must be reversed and the company will recover its costs in all the courts.
The other Justices concurred. | [
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] |
Campbell, J.
Goodspeed and Fales prior to February 13, 1879, were partners in business, and on the 21st day of January preceding the dissolution, Fales, in the name of the firm, but in the absence of Goodspeed, and without his knowledge or authority, gave to an agent of the Wiard Plough Company an order in writing for a large number of articles connected with their business to be shipped on the first day of April thereafter. On the 13th of February the firm was dissolved, and on the same day the agent was informed of the dissolution. The price of the articles ordered was shown to be above $500. On the 15th of February a portion of the articles were shipped, and the remainder, some «arlier and some later than April. All came into the hands •of Fales. There was no proof of any other acceptance of the order than the shipment, unless the agent at the time of receiving the order made some arrangement on the subject, which is not shown.
On a suit against Goodspeed and Fales the court held that the shipment of goods and their reception by Fales bound Goodspeed, and that the fact that the time of shipment was •different from that named in the order made no difference.
We think this was erroneous, and that there was no ground of recovery. A retiring partner is bound by all previous contracts made within the line of the business, but after dissolution he is not bound by any new contract made by his ■copartner.
The order given by Fales made no contract until accepted, and until acceptance^ could at any time be withdrawn.. Inasmuch as the amount of goods exceeded fifty dollars, there •could be no binding contract as against the Wiard Plough Company without either a writing or some act done on the faith of the order. Here there was no proof of acceptance •of the order, in writing, if at all. The shipment of the goods was not made in accordance with the terms of the order, and was not made until the order had been rescinded by notice •of the dissolution. Fales could not waive any of the conditions so as to bind Goodspeed, after the dissolution. The ■sale made was not the sale agreed upon if there was any agreement. The case is therefore doubly defective, in not •showing any valid agreement at all, and in showing a departure from the agreement proposed. Either objection is fatal to a recovery.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Cooley, J.
Defendant executed and delivered to plaintiff a deed of his homestead, but upon the express condition that “ the conveyance of land herein named shall be and continue the property of the first party during his life-time, and the remainder to said second party immediately at the death of said first party. But in the event of the death of the second party before the said first party, then the estate herein shall go to said first party as before.”
This instrument was purely voluntary. The homestead was worth less than $1600. Plaintiff claims that defendant afterwards agreed to give her $2000, if she would reconvey, and she did so. He paid a small sum but refused to give more, and this suit is brought on the promise.
The superior court held the promise to be without consideration ; and we agree in this. The instrument given by defendant was á deed in form, but was testamentary in its nature, and passed no title whatever. If defendant survived the plaintiff, it was to be inoperative; if she survived him, it was to take effect at his death. It was therefore a disposition of property to take effect at his death, she sur viving him, and was a devise and nothing else. He might revoke it at will, and her reóonveyance had nothing upon which it could operate.
The judgment must be affirmed with costs.
The other Justices concurred | [
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] |
Per Curiam.
Ryan was by a justice of the peace of Saginaw county committed to the State house of correction, etc., at Ionia as a disorderly person, in default of finding sureties. He now applies for his discharge. The command by the justice was to detain Ryan until he should find sureties or be thence discharged by due course of law. The statute under which these proceedings were taken is chapter 53 of the Compiled Laws, which points out a way in which the person may be discharged. These proceedings are to be taken in the. county in which the person was tried, and contemplate his continual presence in such county.
Act No. 110 of the Session Laws of 1879, § 12, provides that persons convicted under said chapter 53 of the Compiled Laws may be sentenced to the reformatory at Ionia. The effect of such a sentence is to cut off and leave the person so sentenced without any means of giving security as provided in chapter 53, and we are all of opinion that this could not have been the intention of the legislature. No such serious results should be arrived at unless inevitable. There is no express repeal of any of the provisions in chapter 53, and repeals by implication are not favored. The petitioner could not be deprived of the rights thus given him, in this way, and we are of opinion he should be discharged. | [
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] |
Cooley, J.
This suit is brought for obstructing a ditch, and causing the water usually flowing therein to set back upon plaintiff’s land.
The evidence tends to show that the county drain commissioner laid out the ditch in 1871 across, among other lands, those of David Weeks; that Weeks objected and proposed to litigate; that finally some understanding was reached between the parties concerned which resulted in the ditch being suffered to be dug without objection, Weeks himself digging twenty rods of it, and that it has remained open from 1871 to the time of bringing suit. At some time not given in the bill of exceptions Weeks built a fence for a short distance over the ditch, and plaintiff claims that this was laid into or has settled into the ditch, and that thereby the water is caused to set back upon him. Weeks, on the other hand, claims that he did not assent to the ditch being cut where it, was cut in some parts of the line, and he makes what apparently is a very strong showing that the fence does not obstruct the ditch, or if it does, does not set back water upon the plaintiff. The circuit judge directed a verdict for the defendants.
Importance seems to have been attached in the circuit court to the fact that it was not shown that the ditch was not legally laid out by the drain commissioner. This would be important if Weeks did not consent, but otherwise not. If by common consent the ditch was dug as a, neighborhood drain, and has remained open as a water-course for a series of years, it ought to be governed by the same rules that apply to otlier water-courses; a.nd it is an unimportant circumstance that the parties did not originally agree as to the exact line of the ditch if they acquiesced in what was done. On the facts appearing we think, therefore, the plaintiff had a right to go to the jury on the facts.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Campbell, J.
Relator asks for a mandamus to compel respondent to pKDvide for tbe payment of certain orders issued by Union School-District No. 1 in the township of Alpena, for various lawful purposes, before the division of that district took effect.
Originally, and when these orders were issued, that district embraced the townships of Alpena, Wilson and Long Rapids. In 1877 various statutes were passed which were identical in afll important respects so far as this proceeding is concerned, whereby it was provided that the territory in Wilson and Long'Rapids should be set off so that each of those townships should be made a separate school-district. Acts 356, 358 and 362, Loc. Acts 1877, pp. 486, 491, 500.
The language in each of the statutes relating to Wilson and Long Rapids, was that “ the territory embraced within the township [of Wilson and Long Rapids] in the county of Alpena, be and the same is hereby set off from Union School-District number one of the township of Alpena, and declared to be a single school-district, which shall be a body politic,” etc.
The statutes then proceed to give corporate powers, and provide in the usual manner for all matters relating to the corporate welfare. The complete organization was to take place in April, 1878, on the 3d Monday in April. By section 7 of each act it was provided that each of the corporations thus set off should provide for and pay to Union - District number one of Alpena a proportion of the indebtedness of the old district in accordance with the assessed valuation of property on the eqiialized assessment roll for 1877, and be entitled to credits in proportion to their share of the unexpended funds or taxes belonging to the old district on the 3d Monday of .April, 1878, to be determined according to the same standard of the assessment roll of 1877. All school property was to belong to the district in which it was situated, but the division of such property was to be allowed according to the same basis as the debts and credits.
Union School-district number one in Alpena was made liable for all the debts and liabilities of the whole district as before existing, and was entitled to receive from the new districts payment of their respective shares as determined in the manner already pointed out.
In order to adjust these amounts the various acts in identical terms required the official representatives of all three of the districts to meet in April, 1878, on Tuesday after the 3d Monday of April at the township clerk’s office in Alpena and make a final adjustment of all matters on the basis prescribed. All the papers, books and records of the district were to remain with respondent, the name being changed to “ The Public Schools of the Township of Alpena.” The only objection regularly presented on the record is that the present respondent cannot be held for this indebtedness because it has not been provided with means from the other districts to pay their share. The return avers that the assignment provided for by the acts of 1877 was never made.
We do not think this makes any difference. The respondents are in law the same corporation as the old and larger district. The only effect of these acts was to detach certain lands from the district, but not to change its corporate identity. ~We have already disposed of this question in Maltz v. Board of Education of Wilson Township 41 Mich. 547, in which we held that the debts could not be parcelled out in a proceeding in the courts, so as to give. creditors a remedy against any but the present respondents. A debt once existing must remain a debt against the corporation that created it, and its obligation is not destroyed by a change in corporate limits. If contribution is required, it must be obtained by the corporation and not by its creditors, unless otherwise provided by law.
It is unfortunate that the various boards did not perform their statutory duty, and adjust these matters on the equitable basis provided by the laws under which they organized. It was distinctly enjoined on them as their first duty after organizing.
As it is now, it is desirable if not absolutely necessary that further legislation be had for accomplishing this result. These adjustments cannot be made satisfactorily by any of the ordinary judicial machinery, and should be arranged by the local authorities. The basis of their action is so well defined that they can hardly go astray when they have once ascertained the items of property and accounts to be compared. Some of the difficulties attending this subject were referred to in Brewer v. Palmer 13 Mich. 104, where the identity of the district had been entirely destroyed.
We venture to suggest that while it is wise to prescribe times for such action, the statutes should also provide that a failure at the appointed time shall not defeat or impair the right to have it attended to afterward; and that full provision should be made of means for that purpose.
The relator is entitled to a mandamus as prayed to provide for payment of the amount of his orders. We do not discover any authority to impose interest, and that is denied. The case is a new one in some of its features, and we impose no costs.
Cooley and Qbaves, JJ. concurred. | [
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Graves, J.
In this action the plaintiff sued Sullivan before'the recorder of Corunna, and in the first count alleged an assault and battery, and in the second, in substance and effect, a malicious prosecution. The recorder rendered judgment for Sheldon, and Sullivan appealed to the circuit court.
The cause being there brought to trial the circuit judge ruled that the first count of the declaration was fatally defective for the want of an ad dammtm clause, and that no recovery was possible under the second count because no-evidence had been given to show that the acts complained of were malicious, and the jury were required to find for the defendant.
It may be that the judge was mistaken in holding that there was no evidence of the malice which was averred in the second count. But if so the plaintiff was not injured by the ruling. The cause of action there set up was not suable before the recorder, and no authority was acquired by the circuit court, on the mere strength of the defendant’s appeal, to give judgment for the plaintiff on a cause of action which the law refused to allow the recorder’s court to entertain.
The power of that court to take cognizance of civil cases in general is the same as that extended to justices of the peace, and in reference to this proceeding the recorder’s •authority was subject to “ the laws of this State applicable to justices of the peace elected in townships.” Charter of Corunna, Act 265, 2 Sess. L. 1869, ch. 6, §§ 9, 16. Turning then to the law applicable to justices of the peace we find that jurisdiction of actions for malicious prosecution is •expressly denied. Comp. L., § 5250, as amended in 1815, Pub. Acts 1815, p. 258. The point raised on the admission •of the proceedings which were had in the alleged malicious prosecution becomes unimportant.
On the other part of the case we think an error was committed which necessitates a reversal. The count for assault .and battery was sufficient, and evidence was given under it which the jury should have been allowed to consider. A general ad damnum was inserted at the end of the declaration, and this was regular. 1 Chitty, p. 435. It applied to the count for assault and battery, and in strictness could apply to no other, since the count for malicious prosecution was not lawfully in the case. Moreover had the supposed defect been real it would have been open to correction by amendment. Comp. L. § 5408.
The judgment must be reversed with costs and a new trial .granted.
The other Justices concurred. | [
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Graves, J.
The plaintiff brought ejectment for certain premises situated in Detroit and in the occupation of defendant', and the circuit judge sitting without a jury found in favor of the latter. A review is asked by the plaintiff on a case.
The premises were formerly owned by one Julius Zoellner, who died seized and in possession, and without any will, on the 12th of May, 1880. A.t that time the defendant was residing with him as his wife, and she now claims to be his lawful widow, and in that character asserts a right to hold possession for a full year from Zoellner’s death, under the statute. Comp. L. § 4291.
On the 8th of June, 1857, the decedent married one Margaretha Schnurr at Toledo, and lived with her as his wife until November, 1871. The plaintiff and two others are children of that marriage and decedent’s sole heirs, and she sues in that character.
The defendant on the 10th of June, 1865, became the wife of one Anthony Bittner. In April, 1874, and while the former wife of the one and the former husband of the other were living, the decedent and the defendant went through a regular ceremony of marriage, and cohabited together, thereafter, and until Zoellner’s death, as husband and wife. September 26,1872, the Wayne circuit court in chancery granted a divorce in decedent’s favor against the said Margaretha Schnurr on the alleged grounds of cruelty and habitual drunkenness, and on the 20th of January, 1S73, the same court allowed a decree of divorce in defendant’s favor against the said Bittner on the alleged ground of desertion.
The result of the ejectment depends on the question whether the defendant is or is not the lawful widow of decedent, the plaintiffs father, and this in turn depends on the effect due on this inquiry to the divorce proceedings. The plaintiff’s counsel points out a large number of defects in each of the divorce cases, which, he contends, go far enough to overthrow the decree. It is very plain that many serious irregularities were committed, and -which upon a direct proceeding, it may be, would have necessitated a reversal. But the records are now brought in question collatei’ally, and no objection can be noticed which does not go to the jurisdiction. If the court acquired the right to adjudicate, the proceedings and decisions are not open to revision in this way. The question which sometimes occurs, whether a court which has obtained jurisdiction has not gone on and exceeded it, is not involved.
If in either of the divorce cases the decree is void the plaintiff is entitled to recover. On- the other hand, however irregular or erroneous the proceedings, if the court had jurisdictional power the defendant cannot be disturbed. In each case the defendant was proceeded against on publication and not on service of subpoena or appearance, and whether the court obtained jurisdiction to hold cognizance of the merits depends on the practice which was pursued in respect to those proceedings. If that practice, though irregular and imperfect, was not void, it is sufficient for the present inquiry. The decree cannot be disregarded.
The objections brought against the later proceedings are not tenable in this collateral litigation. None of them touch the right to adjudicate.
In the case, instituted by defendant she swore positively that her husband did not reside in this State but in Breslau in the province of Schlesien in Europe. This was certainly sufficient to be passed on, and the circuit judge acted on it, and made it the ground of a three-months’ order. Here was no error. In the other case the decedent made affidavit that Margaretha Zoellner, the defendant, was not a resident of the State of Michigan, as he was informed and believed, but that her residence was in the city-of Toledo, in the State of Ohio, and a circuit court commissioner made a two-months’ order. It is contended that this affidavit presents no facts which could give the officer jurisdiction to make the order, the deponent merely testifying to information and belief and not even giving the sources of his information. That this affidavit is not what it ought to have been may be fully admitted; but when it is,claimed that the order of publication and the subsequent decree of the court are void for this reason, the court may well hesitate before acceding to a construction so far-reaching and so destructive.
It is the view of some of the judges that affidavits equally defective have been much in use as the foundation for orders of publication, from the organization of the State government to the present time, and that whilst some solicitors have made their own papers more satisfactory and some judges have tried to maintain a better practice, the fact is indubitable that such affidavits have always been, and still are, largely made use of; that the titles to numerous estates, the validity of many marriages, the legitimacy of children and the peace of many families are dependent on the practice; that if orders made on such showings should be held void the most serious and painful consequences would necessarily ensue, and that the considerations of this nature which present themselves are too vast to be put aside to accommodate any notions not based on provisions which are actually imperative; that, coming to the proceeding in question, the statute does not assume to explain what shall amount to proof, but simply provides that proof of the fact shall be made by affidavit; the officer is to find enough in the affidavit to satisfy his judgment, enough to amount to proof to his mind, and if the contents of the affidavit tend to make out what is required as the basis for the order, it contains sufficient to afford his judgment the materials on which to exercise itself, and his decision cannot be held void for defect in the proof offered to him; that considering the long and inveterate practice mentioned, and the very brief and general terms of the provision, the proceeding ought not to be held null for the want of further and more satisfactory matter in the affidavit.
Another member of the court is of opinion that whatever may be the rule in ordinary cases the strict one contended for is not fairly applicable to an affidavit of the husband concerning the residence of his wife ; that he may fairly be supposed to have as full and exact knowledge on that subject as any one to whom he could properly refer, and that in cases where there is no cause for suspicion it ought not to be intended that his disclosure is misleading, or that anything more positive or definite is practicable.
The further objection is made that the proof given of the publication of the orders was defective. In both cases the showing was by affidavit and the affidavits were substantially alike. The fact of publication was stated positively and the affiant swore that he was employed in the office of the newspaper and knew well the facts stated. My brethren think this was sufficient and that the omission of the affiant to describe himself as clerk by a literal statement to that effect is unimportant. Being employed in the office and entrusted with the duty of swearing to affidavits of publication, as it seems was the case, it would be reasonable, as they view it, to infer that his duty was clerical and his position that of clerk. ' . .
In these observations it is not intended to refer to any other than cases where the proof is made in the course of regular suits at law or in equity. No opinion is expressed as to the mode of proof in special or extraordinary proceedings. Perrien v. Fetters 35 Mich. 233, and Gillett v. Needham 37 Mich. 143, are not in point on the question considered.
We think this disposes of all the objections entitled to consideration. But in saying this we do not overlook the industry, and ability shown by counsel scanning the proceedings and in laying bare the dangerous errors and imperfections of certain practice.
The result is that the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Hawkins who owns a hotel building in Ypsilanti, filed his bill to restrain defendant, who owns a neighboring store building, from maintaining a wooden awning in front of his premises. The complainant’s theory seems to be that this is a public nuisance, which injuriously affects him specially.
The awning is, so far as we can see, no more of a nuisance than it would have been if made of any other material, and it was not, as shown from the evidence, such a structure as any court would regard as a public injury or grievance. It was such as was used habitually in other parts of Ypsilanti as well as elsewhere, and was recognized by the city ordinances as not objectionable. It was therefore no more than a lawful use of defendant’s own property.
The special grievance complained of is simply that it obstructs the view of the sidewalk and a portion of the street. The testimony does not indicate that there was any very well-founded objection in fact to the awning, and there is no legal objection to it.
The bill was properly dismissed.
The other Justices concurred. | [
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] |
Graves, J.
The defendant, an assistant receiver of taxes in the city of Detroit, levied on certain chattels of the plaintiff for city taxes assessed against him on personal estate and the plaintiff thereupon paid the taxes under protest and brought this action for their recovery back. The court decided in his favor and the defendant questions the judgment on a case framed under the statute. The right to recall the money is rested on what are claimed to be two fatal errors connected with the roll, and unless the plaintiff is able to vindicate one or the other of these objections his recovery cannot be maintained.
The first objection is grounded on a supposed defect in the assessor’s certificate appended to- the roll. In framing the certificate the assessor adhered strictly to the form, which was in force as a jiart of the general tax law at the time the city charter underwent full revision in 1857. Comp. L. 1857, § 806. He accordingly left out the statement superadded in the form given in the later general tax law (Comp. L. 1871, § 991) that the property was not assessed “at the price it would sell for at a forced or auction sale,” and the plaintiff contends that in consequence of this omission the roll was invalid. He cites the provision of the revised charter of 1857 vesting the assessor with the powers and duties of a supervisor (§ 3, ch. 9, Laws 1857, p. 140) and then argues that it requires that the assessor shall now make the same certificate which the existing general law requires at the hands of a supervisor. And as tending to fortify this view he further observes in effect that in making the assessor liable in general terms to the same duties as supervisor the Legislature must have contemplated that a proper certificate would be -necessary as a means of authenticating the roll to the board of review. The defendant’s counsel encounters these propositions by saying that in respect to the incidents in the assessment and collection of city taxes the charter prescribes the course of proceeding, and in so doing requires no certificate whatever. Hence the circumstance that the assessor attached one not conformable to the general tax law is wholly immaterial.
I do not deem it needful to discuss the case on this theory. The facts do not require it. For the purpose of the present controversy it may be assumed that the plaintiff is correct in claiming that the charter of 1857 made it the duty of the assessor to append the same certificate which the general tax law required from a supervisor, and the investigation may then be reduced to the question whether the duty originally imposed in this respect has been changed so as to require a different certificate. The facts permit the case to be considered under the assumption stated, and without deciding whether any certificate is or is not necessary; because the assessor did certify in exact accordance with the form prescribed for supervisors in the general tax law which was in force in 1857. *
Although not necessary in the view taken, it may be well to notice the idea of the plaintiff that there was occasion for a certificate at that time for the purpose of authenticating the roll to the board of review. It is only necessary to recur to the composition of the board then provided for (§ 6, ch. 9, p. 141, Laws 1857) to see that there was no such necessity. The assessor was himself a member of the board and by tracing out the proceedings it will be seen that he was to be the official bearer of the roll to the board. Such was the regulation in the same act which originated the provision for vesting the assessor with the powers and duties of a supervisor. And whatever may be said as to what has now become needful in consequence of changes in the constitution of the board, there is no foundation for the argument that the provision was originally made with any view to the necessity for a certificate as a means of authenticating the roll to the board. Certainly the purpose of the provision cannot be explained on any such theory.
Proceeding on the assumption heretofore stated that the general terms in the charter included the duty to certify in the form which was then prescribed in the general tax law, and recurring to the question, the point presented is, whether the legislation which changed the general tax law in respect to the contents of the certificate changed ipso facto the operation of the charter and so altered the duty of the assessor as to require him to certify in the mode newly prescribed in the amended tax law, and an answer in the negative appears unavoidable. It being granted that the reference to the duties of supervisors embraced the duty to certify the tax rolls, the only construction fairly admissible is that it was limited to the duty then existing and understood, and did not contemplate that the assessor’s duty should vary with the possible fluctuations in the general tax law.
The case falls under the rule that a piece of legislation for a particular city which adopts under general words of reference a specific regulation in a separate general law is not to be taken as adopting prospectively the future alterations in the provision of the general law so appropriated, unless the intent therefor is express or strongly implied. The case here is not aided by any proof of the existence of such an intent. The result is that the certificate which accompanied the roll was not open to the exception taken to it, and the first objection to the authority to collect the tax cannot be sustained.
The other objection rests in the following charter provision:
" The board, or a majority of them, having completed the review and correction of the assessment roll, shall respectively sign and return the same to the common council ” (Laws 1861 p. 193), and the exception taken to the proceeding is that the roll was not signed. It appears in a statement of facts that a writing of the following tenor was drawn on a paper attached to the last page of the roll by paste, and “ respectively signed ” by the members of the board:
“ To the Honorable the Common Council of the City of Detroit:
The undersigned, Board of Review of the city of Detroit, do hereby return in accordance with sec. 6, chap. 9, of the Revised Charter, the within annexed assessment roll of the ninth ward for the year 1879, the review, correction and approval of which they have completed.
A. Sheley,‘
H. M. Dean,
Levi L. Barbotjr,
Detroit, May 0,1879. Board of Review.”
The exact meaning of counsel in saying that this was not a signing of the assessment roll according to the requirement of the statute is not evident. If rightly understood the position is that the writing actually signed was a communication to the common council, and although pasted to the roll it was in point of sense a document separate therefrom, and that the signing on it was not operative on the roll. Whether this is the proper explanation or not, the objection does not impress one favorably.
No doubt the writing amounted to a communication to the common council. But what of it? It was a proper communication. By means of it the board communicated the roll and also the fact of completion of the review and correction of it. It was mechanically attached to the roll, and it was likewise joined to it in sense by reason of its nature and contents. Had the board done nothing more on the paper than to put their names on it, no one would venture the objection that such a signing could not be deemed a signing of the roll to which the paper was pasted, and yet what was written over the signatures detracted in no way from the effect. The signing was no less applicable to the roll than it would have been if the paper had been signed in blank. But the writing increases the evidence of connection between the signatures and the roll. The written references co-operate with the other circumstances in establishing the applicability of the signatures, and there is no room for contending that they were not made to the roll.
The conclusion is therefore that the objections relied on by the plaintiff as entitling him to recover back the tax are not valid and that the judgment should be reversed and one entered here for the defendant with the costs of both courts.
The other Justices concurred. | [
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] |
Campbell, J.
Tbis was an action for half a year’s rent, claimed to be due from Bates under a lease from Ellen Lucas, mother and assignor of Mrs. Phinney.
In March, 1877, Bates took a written lease of a tract of 30 acres in Woodbridge, Hillsdale county, for three years— which would be until March, 1880. H'é paid $5 an acre for the wheat then in the ground, and $2.50 per acre for a lot called the southeast lot, and for the west lot he was to put up a fence. Eor the second and third years he was to pay $2.50 an acre for the land under cultivation. The rent was to be paid each year on October 15.
In 1878 there was some difficulty and litigation about matters which do not appear in the record; but which do not seem to have grown directly out of the lease. On the 2d of September, 1878, a stipulation, was made between Bates and Mrs. Lucas, whereby he agreed to discontinue his suit, and it was further agreed that he should give up immediate possession to Mrs. Lucas to enable her to put in fall crops, retaining the house and land on which his then growing crops stood for forty days, to enable him to harvest them ; but it being in that immediate connection declared that Bates was “ to pay no rent from this date.” After some further recitals it concluded as follows: “ This stipulation being in full settlement of the matter in difference' in this suit, but not to affect the rent to become due in October, by said Bates to said Ellen Lucas.”
The only question of importance is whether under this stipulation Bates was to pay rent for the whole year ending March, 1879, or for the half-year ending about the date of the stipulation. The court below held that his payment to the latter date left him still indebted for the remaining half-year when he was out of possession.
We think this was erroneous. October was only the time fixed by the lease at the middle of the year to pay the year’s rent. It is quite likely the chief value of the use of the land was in its cultivation. But the lease does not contain anything which indicates that the occupation from October to March was regarded as of no account. There was a house and other conveniences as well as land. And in stipulating for the occupancy of the house and premises for forty days after September 2, 1878, if the whole rent was to be paid in October for the year’s occupancy till March, in spite of the surrender, it would have been absurd to speak of Bates being required to pay no rent from September, when in fact he was to pay for six months longer.
Bent is the consideration for occupancy, and there was no consideration for payment when enjoyment was to cease. "W e think taking the whole document together it merely meant that the surrender and termination of the lease before the rent-day arrived, should not exempt Bates from paying in October the rent due for the half-year’s occupancy. There is nothing to support any larger promise, and the theory of the action for use and occupation will, not apply to a case where no actual use existed or was even bargained for. ■
Judgment must be reversed with costs and a new trial granted.
Marston, C. J. and Graves, J. concurred.
Cooley, J. did not sit in this case. | [
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] |
Cooley, J.
This suit was brought in the name of the judge of probate for the use of Ella A. Dodsworth, upon the bond of McCard, who was her guardian while she was a minor. The breach relied upon is the failure to pay over a certain sum of two hundred dollars, which the guardian received for his ward from the executors of the last will and testament of George B. Dennis deceased.
The will of Dennis under which this payment is claimed1 to have been made, gave to Ella A. Dodsworth, then McCard, the sum of two hundred dollars, and to other persons, also minors, other specified sums, but with provision that “ the amount I bequeath [to them] is to be kept for them until they are of the age of twenty-one years.” The legacies were charged upon real estate which was devised to one of the executors.
Eor some unexplained reason the executors, instead of waiting until Ella became of age, paid over the sum bequeathed to her, to her guardian. This they had no authority to do. It was in plain disregard of the testator’s intent, which was that the legatee herself should receive the money when she came of age, and that it should not be for her use or be subject to contingencies before that time, but should remain secured by the real estate. The payment to the guardian was not, therefore, a payment which discharged the executors. ' Their duty was to pay to the legatee herself. If the guardian paid the money to her after she came of age, such payment would be a good payment by the executors, but if he withheld it, or even used it for the support or education of the ward, the executors would still remain liable. Paying over thus without authority they assumed all risks.
It follows that this suit cannot be maintained. The'moneys were not received by McCard as guardian, because as guardian he had no business with them. The moneys in his hands were moneys belonging to the Dennis estate, and were held for the executors. It is the business of the executors to account to Mrs. Dodsworth. .
The judgment must be reversed with costs of all the courts.
The other Justices concurred. | [
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4
] |
Cooley, J.
In the circuit court, where the positions of the parties were reversed, Dubois had brought replevin for a number of horses, carriages and other property constituting a livery stock in Williamston, and he gave evidence tending to show that he was sole owner of all the property at the time the suit was commenced; that a few days previously the defendant seized it and took it out of his possession and removed it from the barn and premises where it had constituted the stock of a livery for some three years, to another bam some thirty rods away, on another street, and had and exercised exclusive control over it, and refused to deliver it to plaintiff on demand.
The defendant justified as deputy sheriff under a judgment and execution against one Yan Etten, by virtue of which he had made & levy upon the property, and he gave evidence tending to show that Yan Etten “ had an interest in such property as a partner or part owner with the plaintiff.” And the evidence being closed the defendant requested the court to charge the jury that “if the defendant in the execution, Yan Etten, owned any undivided portion of the property replevied when the execution was levied, the verdict must be for the defendant.” The court declined this request, and instructed the jury that the plaintiff, if sole owner, was entitled to recover, and that he was also entitled to recover even though Yan Etten had an interest in the property, at the time of the levy, as a partner or joint owner with the plaintiff. Under this instruction the plaintiff had judgment.
It is to be observed that defendant did not give evidence tending to show that Yan Etten was tenant in common with the plaintiff in the livery stock, nor evidence tending to show that he was partner with the plaintiff. He aimed to show that he was one or the other, but without distinguishing which, and the jury had no basis for determining that Yan Etten was tenant in common rather than partner, or partner rather than tenant in common. At most the jury could only say he had an interest of some sort, if they believed the defendant’s evidence; bnt it was not their province to guess what the interest was when the evidence afforded no basis for a judgment. The defendant, therefore, has no ground •of complaint of the instructions unless it shall appear that whether Van Etten’s interest was that of tenant in common or of partner a levy might be made and possession taken as was done in this case.
There is no doubt whatever that if Van Etten had an interest it was subject to his debts. The question is, how it may be reached. If he was a partner, he was presumptively an equal partner with Dubois, and had an equal right to share with him in the property when the partnership should be dissolved. But his interest would not be an interest in the specific articles belonging to the firm, but only an interest in the surplus that should remain after the debts of the firm were paid. Hankey v. Garratt 1 Ves. Jr. 236; Taylor v. Fields 4 Ves. 396 ; Shipp v. Harwood 2 Swanst. 586. Meantime his share is not separable from the share of his copartner, for he has no separate property in the assets of the firm. Newman v. Bean 21 N. H. 93, 98. Ilis share is also subject to the final adjustment of accounts between the partners themselves. Sirrine v. Briggs 31 Mich. 443. And it may appear on that accounting that his interest is insignificant, or is nothing.
If any levy of an execution upon such an interest can be made, it must be so made and enforced as to protect all rights of others. One man’s interest must not be sacrificed because another who is associated with him in .business happens to be in debt. Specific chattels must not be taken on the execution, because the specific chattels are owned by the firm and not by either of the partner's. Gibson v. Stevens 7 N. H. 352; Morrison v. Blodgett 8 N. H. 238 ; Treadwell v. Brown 43 N. H. 290; Brewster, v. Hammet 4 Conn. 540; Matter of Smith 16 Johns. 102; Wiles v. Maddox 26 Mo. 77. The utmost extent of the officer’s right — if he can levy at all — must be, to seize the interest of the partner, whatever it may be, subject to all the partnership debts and to the final accounting. Church v. Knox 2 Conn. 514; Tappan v. Blaisdell 5 N. H. 193; Sirrine v. Briggs 31 Mich. 443; Reinheimer v. Hemingway 35 Penn. St. 432 ; Knerr v. Hoffman 65 Penn. St. 126. Whether in such a case the accounting should not be had before a sale, or whether on the other hand the officer might at once proceed to sell that which he has levied upon, namely, the undivided, unsettled and undetermined interest of the judgment debtor, is a question that has troubled many courts before this case arose, but which is not involved in this case and will not be discussed until a record is before us presenting it, and counsel have had an opportunity to be heard upon it.
The sheriff in this case seized and took possession of specific articles and removed them altogether from plaintiff’s control. It seems probable, though the evidence does not distinctly show, that he took possession of the whole livery stock, and broke up the plaintiff’s business. But whether he took the whole or only part is immaterial; in either case he seized specific articles when he had a right to seize an undivided and indefinite interest only. He did this also in total disregard of the plaintiff’s rights; for whereas the judgment debtor as partner could only have had joint possession with the plaintiff, the officer, levying on his right, assumed to take exclusive possession and remove the property to another place. As was said by Mr. Justice Campbell in Haynes v. Knowles 36 Mich. 407, 410 : “ The partner not sued cannot on any principle of justice be placed in any worse condition by a creditor of his partner than he could have been by his own partner.” At most for the purposes-of his writ the officer only takes the debtor’s place, and seizes an interest that can only be measured by final account. Vandike v. Rosskam 65 Penn. St. 330.
But it is said that if this be admitted the action must still fail, for the plaintiff is but part owner, and only one having ownership of the whole may bring replevin. The mistake here is in supposing a partner to be merely a part owner. Each partner “ has. an entire as well as joint interest in the whole of the joint property. A levy, then, to affect the interest of a partner, cannot touch a specific proportion of the goods, nor the whole, because others have property in every part, as well as the whole, coupled with a right, resting in contract, to use them for the purposes for which the partnership was instituted.” Deal v. Bogue 20 Penn. St. 228, 233. And see Atkins v. Saxton 77 N. Y. 195. Moreover the partnership assets constitute a trust fund for the payment of creditors, and each partner is in a sense tnistee of the fund until the creditors themselves intervene. If Yan Etten is a partner, it might perhaps have been proper to join him as plaintiff in the case, but Dubois does not concede that Yan Etten has any interest whatever, and therefore could not join Mm. There is no plea of non-joinder, and the plaintiff, if he recovers, and if in fact he is a partner, will hold the property as he did before, in trust for the parties whose claims are paramount' to those of the creditors of either partner. Newman v. Bean 21 N. H. 98.
How far the case would be different if Dubois and Yan Etten were tenants in common is immaterial.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
The plaintiffs were owners of the equity of redemption of certain premises on which the defendant fore closed a mortgage by proceedings under the statute. The mortgage provided that an attorney fee of $50 should be allowed in case of proceedings taken to foreclose.
The defendant bid in the premises and the attorney fee of $50 was included in the sum bid. The mortgage debt carriéd interest at ten per cent. The sheriff executed the deed,, and indorsed the time when it would become operative, .and on the last day of the time given for redeeming, the plaintiffs offered the defendant, for the purpose of effecting redemption, the full amount for which the premises were sold,. together with the costs of sale and interest thereon at ten per cent, less the attorney fee of $50 and interest thereon. They also offered to pay $25 as an attorney fee by way of compromise, if the defendant would accept it and allow redemption. The defendant refused to accept less than the entire amount bid and interest thereon at ten per cent. The plaintiffs then informed defendant that they would pay the attorney fee to the register of deeds under protest, and then sue him, the said defendant, to recover it back. They accordingly deposited the attorney fee and interest on it in one package and the residue in another package with the register of deeds for the purpose of redeeming from the mortgage sale, and they accompanied such deposit with a written protest that the attorney fee and interest thereon were paid to effect redemption, and were claimed to be an illegal exaction. The defendant took the money from the register and received with it said protest. The plaintiffs thereupon brought this suit to recover back the amount of the attorney fee and interest, and the circuit judge after finding the facts entered judgment for defendant.
The ease is governed by the principles laid down in Myer v. Hart 40 Mich. 517, and recognized in Parks v. Allen 42 Mich. 482. No court is vested with authority to draw a line and decide that the fee specified in one mortgage is proper and its payment compulsory, and that the fee contained in another is excessive and its payment voidable. Neither is there any criterion in law for apportioning the sum expressed to the service rendered, and if the payment of $50 can be made imperative by expressing it in tbe mortgagees a fee for future service under the power of sale, however slight, it would follow that payment of $500 could also be made imperative on the some principle and in the same way.
As the law now stands it cannot be regarded as authorizing as a condition precedent to redemption any other exaction in the way of fees or compensation than such as the statute specifies, and stipulations in advance for gross allowances are not consistent with public policy. In respect to all proceedings of this nature, and which are exceptional and peculiar, all allowances which partake of the character of fees are dependent on legislation. Booth v. McQueen 1 Doug. (Mich.) 41.
The judgment must be reversed and one entered here in favor of plaintiffs for fifty-five dollars and costs of both courts. .
The other Justices concurred. | [
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] |
Marston, C. J.
A motion has been made by the appellants to dispense with the printing of the record, or a part thereof, in this case.
From statements of counsel, and a showing made, it appears that boohs and other similar exhibits constitute a considerable part of the record. Such exhibits we never require to be printed. How much of the other evidence should be, can only be determined on examination, or perhaps by counsel, subject to approval by this court.
It appears, from the statement' of Mr. Gutcheon, that the Begents have at this time no authorized counsel to represent them, and the case is of such importance that it should not be heard at the present term under such circumstances. The case, therefore, must stand continued for the term.
Motion for leave to be heard before printing the record.
Submitted April 20, 1880.
Denied April 30, 1880.
S. T. Douglass for the motion.
Perhaps, when there is counsel on both sides, we may consent to take up the case with the understanding that we shall then order the printing of whatever testimony either party deems important.
In any event, there is a considerable portion of the record that should be printed before a hearing is entered upon.
Marston, C. J.
In these cases, owing to the extraordinary and unprecedented course adopted by the complainant in the original cause, declining to render that aid and assistance which the researches and argument of counsel would give, and which has been universally recognized as proper and necessary in courts, especially those of last resort, we find the request to dispense with the printing of the record an embarrassing one. "We do not know what questions are to be presented on the hearing, or the extent of the investigation that will be found necessary in the determination thereof.
We cannot, therefore, now say that the record should not be printed in the usual manner. That this may result in heavy and unnecessary expense upon the losing party, much of which might be avoided could we have the customary assistance of counsel, is very probable. It is, however, one of the consequences which we cannot avoid, when the case is thus thrown upon us, with no information on one side whether the full printing of' the record is or not necessary. We must, as at present advised, assume that such printing is necessary, and act accordingly.
Accounting. Bill and cross-bill. Appeal taken by Doug, lass one, of the defendants in the original bill and complainant in the cross bill. Decree modified in appellant’s favor.
Samuel T. Douglass, Ashley Pond and E. D. Kinne for appellant.
Courts may use such, methods in detecting forgery as are capable of being used by all persons of ordinary, intelligence, though not experts in handwriting: Moore v. United States 91 U. S. 270; as to examination of writing of disputed genuineness, see “The Handwritings of Junius Professionally Investigated” and the review of that book in Littell’s Living Age for June 10,1871; accounts that have been examined, audited, reported upon by the proper committee, and adopted, are settled accounts: Story’s Equity. Jurisprudence §§ 523-6; Adams’ Equity 227; Philips v. Belden 2 Edw. Ch. 13 ; Lockwood v. Thorne 11 N. Y. 171; Dows v. Durfee 10 Barb. 213; Wiggins v. Burkhum 10 Wall. 129; and are not open to re-examination except on the ground of fraud or mistake: Chappedlaine v. Dechenaux 4 Cr. 306; after a body which can authorize expenditures has ratified them for a series of years and repaid them with interest, it cannot refuse to refuse to repay later expenditures on the ground that they had not authorized them: Church v. Kidd 3 Hun 269 ; Lloyd v. Carrier 2 Lans. 365; Esterly v. Cole 3 N. Y. 502; Reid v. Rensselaer, etc. Glass Factory 3 Cow. 393: 5 Cow. 587; Carson v. Alexander 34 Miss. 528 ; an agreement to pay ten per cent, interest may be implied from acts done though it is not expressly authorized except on agreement therefor in writing (Browne St. Er. §§ 124, 346-7) as the purpose of the statute to prevent frauds is not thereby violated.
Marston, C. J.
The original bill in this cause was filed for an accounting between defendants Douglas and Bose respecting moneys which had been received at the Chemical Laboratory of the University of Michigan, on account of the University, but not paid over or accounted for to the complainants, and for a decree against the defendants, or either of them, for such amount as should be found in their or his hands. The other defendants were joined as standing in the position of sureties for the defendant Bose, and responsible with him for any amount for which he should be found •chargeable. Answers were filed in the case by Douglas aud Nose severally, each admitting the rights of complainants to an accounting, but each averring that the failure to account and pay over moneys received was chargeable to the other and not to himself. In the progress of the cause, a stipulation, which will be more fully referred to hereafter, was entered into by all parties, whereby it was agreed that there was a deficit in the accounting to the sum of $5671.87; that Douglas was liable for so much of this as had come to his hands and was not accounted for and paid over to the complainants, and Nose for so much as he had received and not accounted for and paid over to Douglas or to complainants; that an interlocutory decree for an accounting in open court should be entered in order to ascertain the respective liabilities of the parties; that this should not estop the complainants from calling on Douglas to account for any money received by him for complainants, otherwise than from Nose, but that after the accounting there should be a further accounting between complainants and Douglas as to any matters between them not involved in the accounting first to be taken. Dnder this stipulation the parties proceeded to take voluminous testimony in open court, and this was examined and reviewed by the circuit judge .in the opinion rendered by him when disposing of the issue made on the original bill. In none of the testimony was it questioned that the moneys not accounted for to complainants had first been received by Nose, with the exception, perhaps, of a few small sums, but the controversy narrowed itself to this: Whether Nose had paid them over to Douglas, so that the responsibility for the deficiency was upon the latter, or whether, on the other hand, the deficiency was chargeable to Nose himself.
The summary of the facts by the circuit judge is so concise .and accurate that I copy it here:
“ The Laboratory is entrusted by the Negents to the supervision and general management of a director.
" This position was filled by Dr. Douglas from the establishment of the Laboratory to sometime in the spring of the present year. Chemicals and apparatus were purchased and kept on hand for the nse of students in the. prosecution of their studies, and dispensed to them from time to time for that purpose, thus necessitating an account with each student. Dr. Eose entered the Laboratory April 3, 1866, as assistant, and was entrusted with the duty of keeping books of account with the students, and receiving money from them. At this time all agree that the system of Laboratory accounts was imperfect and unsatisfactory. There was a system of accounting between the director and the assistant. Money was received from the student by each indiscriminately. This method continued in use until the close of the fiscal or college year in June, 1866. The next fiscal year commenced in October, 1866. At this time some change and improvements in the system of accounts between the Laboratory and the students, and between the director and the assistant, was introduced at the suggestion of Dr. Eose, and with the concurrence of Dr. Douglas, which seems to have continued without any change during the period involved in this controversy. By this system, which is the former one modified and improved, a student applying for admission to the Laboratory makes a deposit to apply on chemicals, etc., to be supplied to him. This was required by the rules of the department, and was also practiced under the former system. The deposit required was $10, though sometimes in very exceptional cases it would be $5, $15 or $20. The money was paid directly to the assistant, for which he gave to the student a receipt, prepared or filled up from a book of blank vouchers with accompanying stubs, the entries upon the stubs indicating the number of the receipt, its date, the name of the student to whom issued and the amount of the deposit. Upon the back of the receipt was printed a blank certificate intended to be filled up with the full amount paid at the final settlement and signed by the student. These receipts, commonly called tickets, entitled the student holding them to a table for work in the Laboratory, when a vacancy occurred, in the order in which they were issued. ■
“ If the student for want of a table, or for any other cause, did not enter upon a Laboratory course, the deposit money, upon tlie return of tlie receipt, would be refunded to him by the assistant, and the receipt being returned to the director at the next succeeding settlement with him would be destroyed, and the corresponding stub marked ‘cancelled ’ by a diagonal line upon it in black ink. - If he did enter upon his course, an account was opened with him upon the Laboratory ledger, so called, in which he was credited with the amount of his deposit, and charged with all the chemicals supplied to him from time to time. If at any time the ledger indicated that the debtor side of the account was materially in excess of the credit side notice would sometimes be given to make a further deposit. •
“ If after entering upon the work the student should leave before the end of the course, whether before or after the deposit money was exhausted, his account was treated as forfeited, and so reported by the assistant to the director. This term ‘ forfeited accounts ’ seems to have been applied inaccurately to cases where the student left in debt to the Laboratory. -Where an account is for any cause declared forfeited, all payments made subsequent to the first deposit are called subsequent payments on forfeited accounts. The payment need not have necessarily been made as I understand, after the report of the forfeiture. Upon the completion of a Laboratory course the accounts in the ordinary course of business would be settled, the balance either way paid, and the ledger balanced. The balance was, of course, quite uniformly — though not always — against the student, and it would be paid to the assistant, but in very exceptional cases the deposit would exceed the chemicals charged, and in that case the balance would be paid to the student. But, in any event, when an account was settled the deposit receijtt, if possible, was produced by the student, the blank certificate on the back filled out with the full amount paid to the assistant, including the deposit, signed by the student and delivered to the assistant. Thus this voucher and the ledger would show the whole amount paid, and when paid. It often happened that the student had lost it, or for some reason, was unable to produce at the final settlement his deposit ticket or receipt. In suck cases, in the usual course of things, a duplicate would be made out and the student’s certificate filled out and signed.
“Instances, however, are said to have occurred where accounts were settled and balanced upon the ledger, upon the student’s promising to return the deposit ticket, with the certificate upon it, properly signed, without producing a duplicate voucher, but which he failed afterwards to do. This would give rise to a missing ticket, but it would be in the hands of the student and not be in the hands of either Dr. Rose or Dr. Douglas, a circumstance of possible consequence in explaining the absence of or loss of tickets.
“ Douglas being the director, and Rose the assistant, money coming into the hands of the latter from the students, or otherwise, on account of the Laboratory, were from time to time paid over to the former, who reported annually to the Regents, usually in the month of June. It seems to have been the aim of the director and the assistant to settle and adjust their money affairs, growing out of the Laboratory, at least as far as practicable, about once a month, though sometimes a longer and sometimes a shorter period seems to have intervened according to the testimony of both. Upon the occasion of these periodical settlements, the method of accounting between them, so far as it can be serviceable to refer to it here, seems to have been this: The stub book of course would show the number of deposit receipts issued since the last preceding settlement, and the stubs'the amount of money received from this source. Resort was therefore had to the stubs for the purpose of ascertaining the amount of deposit money received since the last settlement; and at the conclusion of the settlement, Douglas, to indicate that the [deposit] money had been passed over to him, would place his name or initials £ S. H. D.’ or the single letter £ D.’ upon each of the stubs since the last settlement, placing what is called a settlement mark — usually a cross or some other character — upon the last stub so initialled.
“ The tickets or students’ vouchers taken by the assistant since the last settlement, were produced to show the amount received since that time, and the amount with which he should be charged on that account would be ascertained by adding the amounts upon the backs of the tickets and deducting the amount represented by the face, which would have-been paid over at some former settlement. The tickets were then turned over to Dr. Douglas with the money, and to indicate the payment or to evidence the transaction, a red line was drawn diagonally across each stub, corresponding'to the tickets turned over, and those vouchers, according to the regular course of business, would accompany the next annual report of the director to the Begents; thus the initial letter and the red line would receipt for all money received from the student and paid over to Douglas upon ledger accounts, which were represented by a stub and voucher. It often happened that the rule requiring an applicant for admission to deposit $10 was not adhered to; for various reasons students were allowed to enter without making a deposit, and in that case no deposit ticket or receipt would be issued. There would of course be no stub — hence the name ‘stuble-s account.’ However, upon the final settlement of this class of accounts, it seems to have been the habit of Dr. Bose, sometimes at least, to make up a deposit ticket and student’s certificate as in other cases. In some instances this course was pursued, in others not; and when not, the account would become stubless after settlement, and in that case there would be of course no vouchers to hand over to Dr. Douglas and no stub to red line, indicating the payment of money to him. It may, however, be said here, that it is claimed on the part of Dr. Bose that this class of stubless accounts, and subsequent payments or forfeited accounts, were ascertained from the ledger and- paid over at the last or final settlement in each year, which he styles an annual settlement.
“ There are some material points of difference between Dr. Douglas and Dr. Bose respecting the course of business between them, especially in respect to the annual or last settlement of the year, which will be noticed hereafter. Enough has been said here to point out the different classes of delinquent accounts without misunderstanding. They are as follows: First, missing tickets, which, according to the regular course of business, should have been returned by the student to Dr. Bose, by him to Dr. Douglas, and by the latter to the Begents, but which do not appear upon the reports of the latter to the Begents, and are not found with others in the steward’s office, and upon the corresponding stubs of which are found the name of Douglas, or initials ‘ S. H. D.,’ or the single letter ‘D.’ (an exceptional instance or two are found where the initials are wanting); second, missing tickets, with corresponding stubs red lined; thwd, stubless accounts, or accounts upon the ledger not represented by stub or voucher; fourth, forfeited accounts, or accounts for any cause reported as forfeited ; and, fifth, subsequent payments on forfeited accounts.
“ It will now be seen that if the names or initial letters upon the stubs, representing the delinquent deposit money, are genuine — if they were truly made by Dr. Douglas — they afford sufficient evidence that the money was paid by Dr. Bose to him, and it should in that case be charged to him in this accounting; if they are not genuine they do not afford such evidence, and the money should be charged to Dr. Bose. If the red lines upon the stubs representing delinquent accounts were made by Dr. Douglas, or Dr. Bose in his presence, or by his direction, then they afford satisfactory evidence that the money represented by them was paid to Douglas, and this class of delinquent money should be charged to him — otherwise to Bose. If the delinquent ledger accounts, not represented by stub or voucher, were settled for or paid over at the annual or final settlement, then they should be charged to Douglas — otherwise to Bose — as it is not claimed that they were paid except at the last or annual settlement in each year. Forfeited accounts are represented by stubs with initials indicating payment to Douglas. Subsequent payments on forfeited accounts were practically stubless accounts.”
These were the main facts. In passing upon them the circuit judge reached the conclusion that the defendant Douglas was chargeable with some portion of the deficiency, and the defendant Nose with another and larger portion. As regards the alleged forgery of the letter “ D ” or the initials S. H. D.” or the name “ Douglas ” on the stubs or vouchers, indicating that moneys had been paid over by Nose to Douglas, the judge was of opinion that the evidence did not justify the conclusion that the name and initials upon the stubs were otherwise than genuine, and all the stubs thus marked were left to stand as vouchers against Douglas. In •other respects the conclusion of the circuit judge was favorable to Douglas, and his opinion, after reviewing in detail the evidence respecting the conduct of Nose when the ■delinquency was first discovered, concluded as follows: “ On the whole, whatever doubt there would have been respecting the result, if the case were confined to evidence growing out ■of the books of account and the loose methods of accoun ing between Nose and Douglas, the subsequent talk and conduct of the former is every way so inconsistent with his present •claim, except in respect to the questioned “ D ”s, and so confirmatory of the claim of Douglas respecting the stubless accounts and the red-lined stub accounts, that I cannot hesitate to say that the fair weight of evidence leads to the conclusion that stubless accounts were not paid over at the last ■or annual settlements, and that the red lines upon the stubs representing delinquent accounts, cannot be accepted as satisfactory evidence that the corresponding vouchers were turned over.”
An interlocutory decree was thereupon entered referring the case to a commissioner to state the account with the following directions: Fvrst, that the delinquent deposit moneys, ■represented by stubs with initial letters or names, should be charged to Douglas; second, that delinquent accounts represented by red-lined stubs should be charged to Nose; thi/rd, that ledger accounts not represented by stubs or vouchers should be charged to Nose; fovrih, that forfeited accounts represented by initialled stubs should be charged to Douglas, and subsequent payments on forfeited accounts, being practically stubless accounts, to Nose.
The accounting took place according to the directions of the decree, and the result was that a decree was entered February 15, 1878, which adjudged that the defendant Douglas was liable for and should pay to complainants the sum of $1716 03, and the defendant Rose was liable for, and with his sureties should pay to complainants, the sum of $4647.55. It was also decreed that complainants should recover their costs of the defendants, but questions respecting them, and respecting costs between the defendants, were reserved.
From this decree defendant Douglas took an appeal. The-complainants moved to dismiss on the ground that the case was not yet so far disposed of as to be appealable, and counsel for the appellant practically conceding the point, the appeal was dismissed.
On January 22d, 1878, defendant Douglas filed a cross-bill for an accounting between himself and the Regents in respect to other matters, and an issue was taken upon this and an accounting had. The matters embraced in this bill consisted in a balance shown to be due to Douglas in his last account rendered various errors which have been discovered in previous accounts, and interest on balances owing to him from time to time for moneys advanced. The. Regents denied all liability to pay interest, and they claimed to offset against any amounts established in favor of Douglas all items of interest previously charged against them by Douglas in his-accounts, and also a number of mistakes in his accounts which were in his favor. -The accounting was had with the following result: The circuit judge credited Douglas with the amount of his final account and with such errors in other-accounts as were thought to be established, and which operated against him, amounting in all to $2846.45. From this were deducted the amount of the previous decree, certain errors which had been discovered, which were in his favor, and the interest items previously ahowed to him, making in all $2829.90, and leaving a balance due Douglas of $17.46, for which a decree was entered in his favor.
It is by appeal from this decree that the case is now before: us.
The- appellant Douglas claims that certain portions of this decree are erroneous, viz.: In crediting the Regents and charging him with the amount of $1716.03 “ deficit deposit moneys” as determined by the decree of February 16,1878, and interest thereon; in charging him and crediting the Regents with certain -i so-called old accounts ” amounting to $53.19 and interest thereon; in not allowing his claim for certain .interest on certain advances made by him; and in disallowing his claim to be credited $390 for error in balance brought forward in his account rendered for 1870-1.
These questions I shall consider in the inverse order of the above statement.
Although there was no appearance in this court, except on behalf of the appellant, yet his counsel voluntarily furnished the Court, on the hearing, with printed copies of the briefs and argument of the principal counsel for the complainant Regents, and of the defendant Rose, and also of the opinion of the circuit judge upon the merits; and the Court was also furnished with a manuscript brief of counsel for the Regents, to all of which due and careful consideration has been given.
Taking up these several questions raised by the appeal, the first in order will be the one last above stated.
First. Appellant claims to be credited the sum of $390 for error in balance brought forward in his account rendered for 1870-1. I have carefully examined the evidence and the briefs referred to, in order to ascertain if a mistake had been made as claimed. The report made by defendant Douglas to the Regents for 1869-70 showed a balance in his hands belonging to the University of $61.19. The two last items of credits to the University upon this report are under date of June 29, 1870, viz.: June 29th, sundry persons, $836.22, and diplomas $19. His next report to the Regents credits the University, under date of July 1st, “ By bal. $4-51.49.” On turning to his book of accounts from which these reports were made I find the balance there stated under the same date $361.49; the other credit items correspond with his report. Turning back upon the same book to his account for 1869 and up to June 29th, 1870, I find the total receipts footed up at $5685.87, and the expenditures at $53,24.38; this makes the balance, as stated upon his books, $361.49. It is very clear, however, that a mistake was made in the footirig-up of the receipts for 1869, as was pointed out during the argument by one of the members of the court. The correct footing-up is not $5685.87 but $5385.87, thus clearly showing a mistake of $300 to have been made in favor of the University. I have been unable to account for the difference between the amount or balance as shown upon his book and in his réport. As already said, the book, as erroneously footed, showed a balance of $361.49, while his report gave the balance as $451.49; the mistake of $300 is clear, while there remains $90 unaccounted for. The evidence tends very strongly to show that this $90 was not received, yet the manner of keeping accounts was so loose and is so unsatisfactory that I am of opinion this $90 'should be charged to the defendant Douglas. He having once reported the receipt thereof to the Regents, he must assume the burden of proving the mistake.- This has been done to the amount of $300 and that amount should be credited to him.
Secondly. I now come to the question of interest. Defendant Douglas while director of the Laboratory, claiming to have made certain advances therefor, over and above the receipts therefrom in his hands, made monthly balances of his accounts and charged interest upon any balance found in his favor at the rate of ten per cent, per annum. In his annual accounts to the Regents the interest thus claimed and computed was charged. In some of the accounts this charge was more clearly and distinctly set forth than in others, it appearing in all as a charge of interest, but not in every instance showing how or upon what balance it was computed. The fact that such advances were made and that such balance.in his favor in fact existed, is not disputed, except upon the theory of charging him with the entire receipts of the Laboratory. It was farther shown that there was no express’ authority given him by the Regents to make any advances, or if he did to charge interest thereon. These accounts, when presented to the Board, were usually referred to the finance committee, by them examined, and reported back as being correct. There was no uniformity in the action taken by the Begents upon these reports; some were “accepted and the account and vouchers placed on file,” others “ accepted,” “ accepted and adopted,” and “ adopted.” And this is true of all of the reports up to and including the report for 1871-2, except for the year 1866-7, which, although made and referred to the proper committee, the record of the Board fails to show any report made or action taken thereon. The report for that year is found on file, and formed the basis for the next year’s report which was acted upon.
It has been claimed that the Begents, in auditing and allowing his accounts, did so in ignorance of the facts relating to the charges of interest, and that the Board liad no authority to borrow money or to pay interest upon such advances. I do not deem it necessary to pass upon the question of the power of the Board of Begents to borrow money or to pay interest. I have no doubt but that where money has been paid out or expended for the use and benefit of the University, in cases where the Board could have expressly authorized such expenditures, they may ratify the act and direct payment thereof with interest at any rate not exceeding ten per cent, per annum; and where the Board with full knowledge of the facts has made such payment, such action will be final and cannot afterwards be disturbed.
Did then the Board of Begents pass upon these accounts with full knowledge of the facts ? "Whether as a matter of fact each member of the Board carefully examined these accounts for the purpose of ascertaining what was charged therein, and the reason therefor, is not of very much importance in the present inquiry. I shall not, therefore, consider the evidence tending to show such to have been the fact. In the presentation of these accounts, and the charges of interest therein, no fraud or concealment was attempted. The accounts upon their face showed certain interest items charged against the University. This was sufficient to nut the Regents upon inquiry, and in case they did not fully understand the charge as made, or the reason for making it, it became their duty, before acting farther thereon, to make full investigation and ascertain all the facts relating thereto. No one can doubt for a moment but that a proper investigation would have given them all the facts and circumstancés> pertaining to this question of interest. Such being the duty of the Board of Regents, this court cannot presume that it was either neglected or carelessly performed by that body. In the absence of fraud it must be conclusively presumed that the Board did know the facts relating to these charges and allowed them in the light thereof. What was said in Detroit Advertiser etc., v. City of Detroit 43 Mich. 116 is equally applicable in this connection and need not here be repeated, and the rule there laid down must be held decisive in the present case upon this question, so far as interest was allowed, which includes the amount in the report for 1871-2 and previous years.
The records of thé Board do not show final action upon any report subsequent to that of 1871-2, consequently no allowance of interest thereafter. And I am of opinion, therefore, that interest after thaf time cannot be allowed in this case. If it could, clearly, under our statute, the rate could not exceed seven per cent, in the absence of a written agreement. Where charged and paid in the absence of such an agreement the person receiving such rate may retain it, but he cannot make that the basis for the recovery of the same rate upon implied contract. I am also of opinion that no implied contract can thus grow up under which interest can be recovered; that the rule applicable between individuals cannot here be followed, but rather the rule applicable between the State or municipalities and individuals must here govern. I have heretofore had occasion to examine the question whether interest could be claimed from the State upon an implied contract, and came to the conclusion that such was not the general rule, and I have seen no occasion to depart from or change the conclusion then arrived at. Report of Auditor General for 1874, ccxlv.
1 am of opinion, therefore, that the interest charged in the report for 1872-3 and subsequently, cannot be allowed the defendant.
Thwdly. Old accounts amounting to $5319. Before attempting to pass upon this and the remaining claim, it might be Well to first ascertain the relations existing between the defendant Douglas and the University, and his legal liability to the University resulting therefrom.
As I have already given a full statement of the facts, a brief reference at' this point will be sufficient. Defendant Douglas was at an-early day appointed assistant professor and afterwards professor of chemistry. As such it was a part of his duty to purchase chemicals for the Laboratory, furnish them to students therein as necessary, collect the price thereof and account therefor to the Board of Begents. Our attention has not been called to, and I have been unable to find, the record of his appointment or the authority then or after-wards expressly conferred upon him. Evidence has been introduced as to what some members of the Board considered his duty, viz., to superintend the business of the Chemical Laboratory, receive and account for all moneys coming into the same; to act as its director, and to report to the Board the result of the management thereof, including all moneys coming into his hands, and all moneys paid out by him in connection therewith. As early as 1864 assistants were appointed”, who, amongst other duties, took charge of the books, dispensed chemicals to the students, kept their accounts, collected from them and paid the saíne over to defendant Douglas.
• In June, 1865, defendant Douglas made a report to the Begents in which the following appeared : ‘ The Dispensing of Chemicals and Apparatus and the Keeping of Accounts in the Laboratory. An account is kept with each student in the Laboratory, who is made to pay for what he actually consumes; the labor attached to this branch is very great and requires the services of a good and correct accountant ; thus, in transacting the business of the past year, there have been made in the books of the Laboratory upwards of 1800 entries of charges and credits, and in the hands of a careless and inefficient man large amounts may be lost to the University. Under all these circumstances I respectfully suggest to your honorable Board the appointment of an assistant of chemistry and lecturer on organic chemistry and metallurgy, at a salary of $1000, and that the remaining two assistants now authorized to be employed be paid, respectively $250 and $300; the expenses of the Laboratory would be thus increased $800; with this sum I think the services of one permanent and efficient assistant can be secured, and if the waste and loss consequent upon irresponsible and inefficient help is taken into account, it will prove little if any more expensive than the present arrangement.” At the same session the committee to whom was referred the above reported the following, which was adopted: “ Resolved, That an assistant professor of chemistry and lecturer on organic chemistry and metallurgy, at a salary of $1000, be employed, and that the remaining two assistants, now authorized to be employed, be paid respectively $250 and $300 per annum.” The following was also adopted: “ On motion of Regent Knight the appointment of an assistant professor in the Laboratory was referred to the executive committee and Professor Douglas.” Under this authority Dr. Lewis was appointed to take charge of the books, dispense chemicals and keep accounts, and he held such position until the spring of 1866, when he resigned, and Dr. Preston B. Rose was then appointed.
I do not understand it to be claimed, or that, as a matter of fact, defendant Douglas, during or after 1864, kept the books of account with the students or dispensed any of the chemicals, or, with a very few exceptions, collected any moneys from the students. The books were kept, and all this work was done, by an assistant who accounted to defendant Douglas.
Under such a state of facts it is important to first determine whether defendant Douglas can be properly charged with and held liable for all moneys, which the books show to have been paid, or which were actually paid, to such assist ants, or only for the amount by them paid over to him. I have been unable to discover any principle or decision under which defendant Douglas can in this ease be held liable for moneys not actually received by him. No such enlarged responsibility can result from his office or the class of duties he performed. The keeping of accounts and collection of moneys from the students could not, from the very nature of his position and the duties he had to perform, primarily fall upon him. He was not a mere accountant and collector. That duty necessarily must have been and was in fact entrusted to others — assistants who were appointed under authority from the Board of Regents, their salary fixed by them, and paid out of University funds. Iunake no distinction on this account, for there is none, because they may have been paid from Laboratory moneys and by the director; they were none the less University funds which otherwise it would have received. These assistants were not therefore the clerks, servants or agents of the defendant Douglas, for whose acts he would be chargeable, and the mere fact that he had power to employ or discharge them, would not make them such. They were in the employ of the University and were subject to be called to account by, and were responsible to, the Board of Regents for their acts and conduct.
If it was a part of the duties of the defendant Douglas to keep strict watch and account of their doings to prevent loss to the University, and he was guilty of such negligence in this respect as would render him responsible for the losses sustained in consequence thereof, the question might be different, but such is not the theory of the bill in this case.
It is not necessary, however, to rest the case upon this ground alone; as already intimated, the bill of complaint does not seek to charge him with any but the moneys that came into'his hands. Farther than this, after the cause had been at issue, counsel representing all the parties, complainants and defendants, entered into a written stipulation, in which I find the following: “ 1st. All the said defendants who have appeared, consent and agree that said Douglas is liable to account to and pay over to said complainants so much of the Laboratory deficit, so called, as came into his hands, and which has not been accounted for by him to the Regents, if any; and also, that said Rose is liable to account to, and pay over to, said complainants so much of said deficit as came into his hands and which he has not accounted for to said Douglas or to said Regents, if any. * * * * * 4-th. Nothing contained in the record of this- causé, or the decree to be made therein, shall, at any time hereafter, be alleged or held to estop the complainants from calling on said defendant Douglas to account to them for any money which he may have received for their use, other than such as was received by him from or through said defendant Rose.”
The authority to enter into this stipulation has not been and could not well be questioned, and it clearly fixes the liability of each to such amount “as came into his hands and which has not been accounted for by him.” Whether therefore we look to the bill of complaint, the stipulation, or the legal liability resulting from undisputed facts, we can only charge defendant Douglas with the moneys received by him and not accounted for. It also follows from such a state of facts that there must be evidence, at least, tending to show moneys into Douglas’ hands in order to justify the rendition of a decree against him. In stating this I do not overlook the second clause of the stipulation referred to which fixed the amount of the deficit, but left open the question what amount thereof should be charged to Rose and what amount to Douglas. This matter of division or apportionment was left to be settled by the court in the usual manner upon relevant and competent testimony in the case. It is not sufficient, therefore, in order to charge defendant Douglas, to show by the books kept by an assistant that a certain amount of money had been paid to the assistant, or, as a fact independent of the books, that such sums were paid to the assistant, as such evidence has no tendency to show that Douglas received it. Proof of these facts would necessarily be one of the steps in the case, but standing alone would fall short of establishing a liability against Douglas, or call upon him to account for what he has not been shown to have received. The burthen of proof, in reference to these old accounts, is upon the complainants; and in reference to the deficit fixed by the stipulation, is upon defendant Nose, to show the money in Douglas’ hands in order to charge him therewith. In seeking to establish such fact the rules applicable to the proof of facts in civil eases must be observed, and the fact may be shown by any competent testimony fairly tending, either alone or in connection with other circumstances, to establish it.
I have been wholly unable to find any satisfactory evidence that defendant Douglas received any of these old. accounts chai’ged to him in the decree. They are very old matters, running from 1860-1 to 1863-4, and the books kept at that time are principally relied upon to charge him. These books are not in his handwriting; the evidence shows thgt they' were very carelessly kept; that the tickets then in use were relied upon in the settlement with the students, and that corrections made in the settlement did not necessarily appear upon the books, and that the entries therein are not correct. Under such circumstances I am of opinion that these old accounts should not be charged against the defendant Douglas. It may be very questionable whether the books, kept in such a manner, could be admitted in evidence as against this defendant, but as the proof stands, the question is hardly of sufficient importance to justify an extended discussion.
Fourth. I now come to perhaps the most difficult, certainly the most important, question ^raised by the appeal. The decree charges the defendant Douglas with certain deficit deposit monejrs, paid in 1866-7 and following years up to 1873-4, amounting to $1275 and interest thereon. What has been said under the last subdivision, relating to the old accounts, as to the relation of the several parties, their respective liabilities and the burthen of proof, is equally applicable here and need not be repeated.
The principal evidence relied upon to charge defendant Douglas with the receipt of this deposit money is the stubs remaining in certain books, with the name, or initials, or initial D. thereon, of Douglas as a receipt or voucher that he had received the amount mentioned in such stub. It is not disputed, but it is in fact conceded, that if all the vouchers for deposit money on the stub-books are genuine, the decree in this respect is correct and should not be changed. Defendant Douglas testified that the vouchers on stubs 37 and 44 to 85, inclusive, in stub-book 2, are not in his handwriting, and although testifying that there were others which he believed were not, these were the only stubs specifically pointed out by him. This, in my opinion, puts these stubs in issue, as would an affidavit denying the execution of an instrument sued upon. Twelve stub-books, running from 1866 to 1876, were put in evidence. On nearly all the stubs in these books I find defendant’s vouchers, the great bulk of which are unquestioned. I do not, in this connection, refer to the red-line vouchers. Nearly one hundred orders drawn by the recorder upon the treasurer of the city of Ann Arbor, and countersigned by defendant Douglas as mayor, were put in evidence by the defendant Nose. There is also a large number of books and papers in evidence, containing the genuine handwriting of both the defendants Douglas and Nose.
I have made most careful examination and comparison of the writing and signatures of defendant Douglas with the disputed vouchers. I have also made a quite careful examination of defendant Nose’s handwriting and signatures with the disputed vouchers. This last, however, was not as careful as the first for two reasons : First, if these dispuited vouchers were the work of Nose, I would not expect them to be in his ordinary and natural handwriting but rather as an imitation of Douglas; and secondly, if I became satisfied they were not made by defendant Douglas, it would not, for the purpose of this ease, become necessary to find by whom made, inasmuch as the case would then be merely this, that defendant Nose had received certain moneys for the payment over of which he had failed to produce vouchers. If I had confined my examination to defendant Douglas’ signature on the city orders referred to, and a comparison thereof with the disputed vouchers, I should have no hesitation whatever in saying that the latter were not genuine. The city orders, however, were all countersigned in 1871-2 and ’3— most of them in 1872 — while these disputed stubs are dated September, 1867. An examination of the previous stubs in the same book, number 2, running from December, 1866, to the date of the disputed stubs, and of stub-book number 1, running from August 9,1866, to December 10th of the same year, would not tend to weaken but strengthen such opinion. Thus far there can scarcely be said to be any resemblance whatever between the disputed papers and those shown or admitted to be genuine. No doubt, if all these I have mentioned, numbering about four hundred, should be taken and compared, resemblances might be pointed out between some which are disputed and some conceded to be genuine, but some resemblance would be expected on any theory of the case.
I encounter more difficulty when I come to the examination of other stub-books, for there is unquestionable evidence in the signatures and initials not disputed, that the handwriting of defendant Douglas underwent some changes in the period covered by them, which introduces an element of considerable embarrassment in the attempt to test these disputed papers.
In addition to the examination thus made we have the expert testimony, which cannot be overlooked but must receive such weight as in our judgment it is fairly entitled to. I may not be able to agree with the witness to the full extent of his theories, as in saying that certain initials or signatures were not and could not have been made by defendant Douglas, and yet there may be many things in his testimony that will aid us in arriving at a correct conclusion. Evidence as to the genuineness of handwriting given by a witness possessing the requisite experience and skill is admissible, and being so, must be considered, and given, in the light of all the evidence bearing thereon, just such weight as the court or jury may deem it reasonably entitled to. It cannot be rejected in toto, simply because expert testimony, in passing, unheeded, the actions of the respective parties. I do not now refer to opinions of witnesses based upon mere appearances, when parties are questioned touching matters of this character; but to such acts, conduct and utterances as evidently were made deliberately and understandingly. Such acts and declarations have ever been considered competent evidence in civil cases, and are entitled to be weighed and considered in the light of the circumstances under which they were made.
Defendant Nose, when his attention was first called to the fact that the account submitted by him or return made to defendant Douglas was not complete, examined his books and admitted that the names submitted to him were not included; others were presented and like acknowledgments made. He then voluntarily offered to, and did, prepare a list of delinquent accounts for 1874-5, entered it in defendant Douglas’ “ long’-book,” and certified to its correctness ; said he knew no better way than to find out how many were deficient, and pay them, and did borrow the money and paid them. Afterwards a deficit for previous years was discovered, and on his attention being called thereto, while denying that he was aware of any such deficit, yet he gave security to meet whatever might be found. A list of delinquent accounts for 1873-4 was made out, amounting to over eight hundred dollars, and on the 13th of November, 1875, he certified thereon that, so far as he knew, it was correct according to the examination of the books. He afterwards, on December 7, asked leave to make a supplementary statement thereto on the same paper, which not being permitted, a separate statement was made by him, but which does not explicitly question the correctness of his previous certificate. His admissions to President Angelí and others all bear directly upon this question.
Much has been said, in the briefs of counsel referred to, as to the unfairness of the means resorted to for the purpose of procuring these admissions, papers and securities. I cannot agree with counsel in what they have said upon this subject. I certainly have heretofore gone as far as any court has in denouncing attempts to encourage men to commit crime in order to detect and punish them therefor, because of their previous supposed criminal conduct, and I have no desire to depart from what I then said : Saunders v. People 38 Mich. 221. But in this matter, in all that was done no effort was made to have defendant Rose commit any wrong, but simply to acknowledge that he had omitted to make proper returns. This is a very common practice, and I certainly see no objections that can be urged against such a course, unless undue means are resorted to, which I think were not in this case, and I fully concur with the learned circuit judge in what he said in speaking of the trust deed given to secure the Regents against loss on account of delinquencies in former years: “ Douglas was not present upon this occasion or connected with the transaction, and there certainly was nothing oppressive or over exacting in the conduct of the two Regents with whom the business was done, or that should excite timidity on the part of Rose.” But perhaps the very strongest reasons that can be shown against the charge of undue influence to procure such written admission is the fact that the commissioner, in stating the account, found, and the court below approved his finding, that the list of delinquent accounts for 1874-5, entered and certified upon the “ long-book ” by Rose as correct, and the delinquent list for 1873-4, as certified to by him on November 13, 1875, already referred to, were in substance correct, and charged him therewith, and with the decree thus rendered he had rested satisfied, having taken no steps to obtain a review thereof.
I have given due consideration to the argument found in the briefs against these things, yet in view of the evidence of the men to whom these statements were made, I cannot come to the conclusion that any undue or improper advantage was sought or taken of defendant Rose, or that the circumstances would justify me in not giving due weight to such testimony. There was no illegal compulsion used, nor was he imposed upon or under duress. Nor have I overlooked the argument that the first D vouchers are denied, and also what is said in reference to the spelling of the word Dougles or Dougled on stub number 44. "Whether this word was so spelled intentionally to furnish an argument against the probability of one familiar with a name thus misspelling it under such circumstances, I pass, but in my opinion this name was not written bj defendant Douglas. Nor have I overlooked the offers that were made by defendant Rose asking for investigation. Much may be said in favor of the apparent fairness of some of these propositions, and I have no desire to criticise them ; they cannot overthrow or destroy the effect of the evidence in the case, and they can take but very little from its force and effect. There are still other facts and circumstances which might be considered and discussed at considerable length, yet it is deemed unnecessary in the present case.
In view of all the evidence I am of opinion it does not satisfactorily appear that the vouchers in stub book number 2 referred to were written by defendant Douglas, and he should not therefore be charged with the amounts represented thereby.
This still leaves a large number of delinquent deposit accounts charged to defendant Douglas. I have examined and considered with care the argument advanced by his counsel against the allowance of any of these accounts, and acknowledge its force. Bearing in mind, however, the admitted fact that for all genuine deposit stub vouchers unaccounted for he is responsible, and in view of the farther fact that although called as a witness and thus having full opportunity to point out all such vouchers as he did not believe were genuine, yet he did not deny any others except inferentially. If he had been incapacitated or disqualified as a witness, then no such denial could have been obtained, and the court must, from the other evidence in the case, have passed upon the question. But when a party is living, has been called as a witness, and does not specifically point out and designate those which he claims to be spurious, the court is quite justified in refusing to pay much heed to any elaborate argument by which it is sought to establish their falsity, in the absence of such a denial specifically pointing out those considered not valid, where, as in the present case, the great bulk of them are not questioned, all must be considered jprima facie valid.
For these reasons I am of opinion that all such delinquent deposit moneys must be charged to the defendant Douglas and that as to these the decree will not be disturbed.
I have thus carefully considered all of appellant’s objections to the decree of the court below, except a question of costs. The appellant also insisted that the appeal brought up the whole case for review, and it was argued accordingly. . Neither the Begents nor Bose or his sureties appealed, and neither of them appeared by counsel or otherwise in this court. This has been a source of great embarrassment to the •court and has greatly increased our labor; and under such circumstances I think we have a right to assume that all parties, except Douglas, are satisfied with the decree as it stands. It is a long and well-settled rule that a decree appealed from by one party only, cannot be changed in the appellate court in favor of the party not appealing; and, as this rule is so well known and understood, it is expected that all parties will appeal who are dissatisfied with the conclusion of the circuit court, and desire to have the decree changed in their favor. The fact of dissatisfaction courts can only know by an appeal regularly taken according to the rules and practice of the court. Nevertheless, as we held in Grant v. Merchants’ etc. Bank 35 Mich. 515, if in a case of accounting we find occasion to change the decree by allowing in favor of the appellant any items which were rejected in the court below, we will offset to these any other items claimed by the party not appealing which in our opinion were improperly rejected. But when a party acquiesces in the disallowance of any of his claims, and in this court neither by appeal nor otherwise complains of the disallowance, I think we have a right to assume that he is satisfied with the action upon it, and that he does not expect or desire us to examine into it. There may be reasons for his not desiring it which we could not know without their being explained to us, and it would be presumptuous on our part to treat the case in such a way, or to force the re-opening of matters which the parties con cerned cliose to leave where they were left in the court below. We can give the appellant relief in so far as the decree may be found to err against him; but where no one else complains or appears, I shall follow the usual custom of courts and refuse to discuss such questions as in the case before us are mere abstractions, since the only possible motive in the discussion would be to express opinions on those parts-of the decree below of which no one makes complaint.
The Court will assume, however, that any claim which is made by the appellant in this court, is in issue, and will look through all the evidence for any possible information which will show or tend to show that he is or is not entitled to have it allowed in his favor.
I am of opinion that the decree below should be modified in accordance with this opinion, and that appellant should recover costs in this court.
My brethren concurring, it is so ordered, and a decree will be entered in this court accordingly.
Graves, J., concurred. | [
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Marston, C. J.
This ease comes clearly within and is-disposed of by Dale v. Lavigne 31 Mich. 149. The appeal was not taken within the time allowed by the statute, and the-circuit court obtained no jurisdiction.
The judgment must be reversed with costs of both courts..
The other Justices concurred. | [
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] |
Graves, J.
This case comes up by appeal by the defendants Atkinson against a decree requiring the defendants to interplead. The objection to the decree calls for a short statement of facts and the explanation in defendants’ brief is very nearly all that is necessary. Charles A. McIntosh had insurance on the steamer Bertsehy for $5000. The steamer had been lost. Complainant’s law firm held for collection against McIntosh claims in favor of the Bay City Iron Company, the Brewster Coal Company, Bay City Dry Dock & Ship-yard Company and Lewis C. Iiansheer. Complainant was likewise empowered to act for Mrs. Peck who was entitled to part of the insurance as mortgagee. His firm had garnished the insurance companies to compel the application on these claims of sufficient of the insurance money to pay them.
The defendants Atkinson set up claims against McIntosh to an amount exceeding the residue of the insurance fund, and on the 8th of October, 1879, McIntosh and Mr. ¿Tames J. Atkinson met complainant, and thereupon Mcldtosh assigned the policies to complainant and as part of the same transaction complainant then and there executed and delivered to Mr. Atkinson the following paper:
“ Detroit, Mioh., October 8, 1879.
“ The policies in the Phoenix Insurance Company, the St. Paul Fire & Marine and the Manhattan Eire, on the str. ‘Bertsehy,’ amounting to $5000, and payable to C. A. McIntosh, have this day been assigned by him to me.
I am to pay, from the proceeds of said policies, the claims of the Bay City Iron Co., the Brewster Coal Co., Bay City Dry Dock and Ship-yard Co., and Louis C. Hansheer, and the costs upon the same, if I find said claims to be correct.
I am also to pay Susan E. Peck the amount due upon her mortgage, agreed upon as $2326.66, to Sept. 29, 1879.
Balance % am to pay to Atkinson & Atkinson.
Wm. A. Moore.”
Some thirty days .later and before complainant had collected any insurance he was garnished in the admiralty on claims against McIntosh in favor of the other defendants. But before making disclosure he collected the insurance and paid the specific claims in the writing of the 8th of October. On answering the garnishee proceedings in the admiralty he explained the facts and disclosed that the “ balance,” being $1560.60, remained in his hands and was claimed by the defendants Atkinson. The libelants in said garnishee proceedings claim and insist that said balance is still the money of said McIntosh and subject to be arrested under their garnishment and appropriated to- their demands against him. The defendants Atkinson requested complainant to pay said balance to them, and on his refusal they brought their action against him therefor. They claim and insist that they cannot be affected in any way by the garnishment in the admiralty or by the result of .it; that whatever may be there required of complainant they are entitled to recover the amount of him as due to them under said paper; that he having expressly promised to pay them the sum in question, he is not in a position to compel them to interplead with the other defendants who have interposed claims on another basis.
The point raised is one of no little difficulty. The principle on which the objection proceeds is expounded with great clearness in Crawshay v. Thornton 2 Myl. & C. 1, and was applied in Sherman v. Partridge 4 Duer 646, and in Sprague v. Soule 35 Mich. 35. There is no doubt of the rule that interpleading cannot be rightly ordered unless the respective claims threatening complainant are such as to antagonize and negative each other. Where the claim of one party may be legally enforced without implying invalidity of the other, there can be no issuable point for decision by interpleader. But much consideration has led to the opinion that the case is not subject to this objection. It is expedient to bear in mind that we have now no concern whatever with the final question of right on the part of the defendants Atkinson. The inquiry at present is only the preliminary one in regard to the'fitness of the controversy for an interpleader to determine that final question. The objection turns on the proper view of the transaction of October 8th. At that time McIntosh assigned his policies to complainant, and directed what should be done with the proceeds. The assignment and provision for the fund were parts of one transaction. The form given to it is of no material importance. The court is bound to penetrate to the substance, and ascertain the real merits.
The disposition of the residue in question was defined and ordered by McIntosh, the assignor. The direction made was his direction. The complainant merely acceded and agreed to it. The defendants Atkinson assented. The object of McIntosh was to appropriate that part of the fund to the purpose of the defendants Atkinson, and confer on them the right of property as against all others, and the complainant so far concurred as to agree to the direction given by McIntosh to the fund. The transaction did not contemplate any absolute liability of complainant independent of his lawful power over the properly, and it was not imagined that in case of its turning out that McIntosh had given a better right to some one else the complainant should yet be liable to the defendants Atkinson.
The right was to spring from McIntosh and pass through complainant, and it was not intended that any loss or diversion of it without any fault of complainant, should be made his loss. He was not to be held responsible for any fault or failure of title, nor be liable to pay damages on account of the detention of the fund by McIntosh’s outside creditors.
Now the real claim advanced by the defendants, who have sought to sequester the fund, is that the transaction of the 8th of October was not as against them a valid appropriation of the property, and the defendants Atkinson insist that it was. The true issue is hence upon the effect of the transaction referred to, and a decision in favor of either side must necessarily amount to a negative of the right' on the other. The case is therefore a proper one for interpleader. Oppenheim v. Wolf 3 Sandf. Ch. 571.
The decree must be affirmed with costs, and the cause remanded for further proceedings.
The other Justices concurred. | [
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] |
Marston, C. J.
The record does not show any notice whatever that application would be made to the probate judge for the appointment of commissioners, and they having been appointed and acted without such notice having been given or waived, the proceedings cannot be sustained, but must be quashed, with costs.
The other Justices concurred. | [
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Graves J.
This action was brought on the official bond given by Thomas A. Bunbury as treasurer of the city of Niles to Samuel Hess the county treasurer of Berrien connty “ and his successor or successors in office forever.” It was commenced by declaration to which the defendants pleaded the general issue. The judge heard the case without a jury, and on certain findings of fact rendered judgment for the defendants. The ease is brought up on exceptions to the findings of law. The judge seems to have formed a theory which, in his opinion, justified a partial finding of facts and enabled him to dispose of the case without a finding of Certain facts which would be indispensable in case the view of the law on which he acted should turn out untenable. The findings appear below.
On scanning the declaration it appears that all the breaches sufficiently assigned to admit evidence are averred as having consisted of neglect and refusal to account for and pay over money received as taxes. Under the charter of Niles tbe treasurer is to perform the same duties in relation to the collection and return of taxes for state, county and school purposes, assessed and levied within said city as is required of township treasurers and in the same manner, with the like restrictions and under the same liabilities. Act No. 134, Laws 1859, § 21, p. 372. Lie is required to give the same bonds as township treasurers (§ 40, p. 383) and to discharge the duties in regard to school moneys which in townships are devolved on treasurers. § 46, p. 385.
A township treasurer is required to give a bond to his township for the faithful discharge of the duties of his office and that he will faithfully and truly account for and pay over according to law all moneys which shall come into his hands as such treasurer (Comp. L. § 713) and this bond is to be given within ten days after he is notified of his election (§§ 712, 681). But after notification by the supervisor of the amount of state and county tax apportioned to his township and on or before the 25th of November he must give another bond. This is to be executed “ to the county treasurer and his successors in office” and “in double the amount of state and county taxes ” and “ conditioned that he shall duly and faithfully perform the duties of his office.” § 1000.
The bond in question was given in compliance with this last provision and not as answering to the first bond, which in the case of township treasurers is to run to the township.
It is very apparent that the action on this bond has no reference to any cause of action by the city of Niles against Bunbury for failure to pay over or account for anything belonging to the city. The suit has no such scope, if any such were possible.
The briefs of counsel seem to* imply that questions in regard to evidence can be examined. Of course this is not so. It was for the circuit judge to hear what might be said on the state of the evidence, and in respect to inferences and presumptions, and thereupon to find the necessary conclusions of fact. If there was presumptive evidence to make out any such fact it was for the judge to consider it and spread the result upon the record as a fact which he found. No such process is here admissible. It is confined to the court of original jurisdiction and we cannot pay attention to arguments to the contrary.
The brief of defendant’s counsel contains the general objection that the action was commenced by an improper party, — by a party having no interest in the bond nor in its collection. Perhaps the bare name of office was not sufficient, and that the individual name of the treasurer should have been used with the office by way of addition. Commissioners of Highways of Cortlandville v. Peck 5 Hill 215; Supervisor of Galway v. Stimson 4 Hill 136; Agent of Mount Pleasant Prison v. Rikeman 1 Denio 279; Overseers of the Town of Hebron v. Ely, Lalor’s Supp. to Hill & Denio 379. But if so, the point is not available. The defendants should have taken the objection before pleading to the merits. It does not appear to have been raised below and it cannot be urged here for the first time. The fault, admitting it to be one, is curable by amendment. Barber v. Smith 41 Mich. 138 and cases; Johr v. St. Clair Supervisors 38 Mich. 532; Agent of Mount Pleasant Prison v. Rikeman, supra.
If the gist of the objection is that the treasurer is not in law competent to be plaintiff the position is not valid. There is no provision which in express terms confers the power, but none is necessary. There is no statute against it, and when the giving of the bond is prescribed as a piece of security for the safe-keeping and payment of the state and county taxes, and the county treasurer is designated as the one to be obligee, the law points him out as the one to be invested with the legal interest and as the proper party plaintiff in case of a suit^ A different construction would lead to the awkward conclusion that the Legislature carefully exacted an obligation to protect the public interests and then allowed it to be waste paper for want of some provision identifying the party plaintiff to enforce it. The rule is general that all public officers, though not expressly authorized by statute, have a capacity to sue commensurate with their public trusts and duties. Supervisor of Galway v. Stimson, supra.
The condition of the bond in question after stating truly, though in a somewhat enlarged form, the duty covered by the obligation, went on to say: “ Reference being had to the warrant of the supervisor of said township attached, or to be attached, to the assessment roll for the year 1872.” And as one of the two rolls which Bun bury held never had a warrant, it is contended that the bond was. not applicable to any money which went into his hands on that roll. The answer to this is, that this passage in the condition is a harmless excrescence. It is something beyond the statute terms. Moreover, as a paragraph in an obligation executed by the city treasurer of Niles to the county treasurer,, it is nearly devoid of sense. No warrant of a township supervisor could be attached. It would be necessary to regard the word “ township ” as used by mistake for the word “ city.” Otherwise the supposed qualification would be mere nonsense. But the passage is a nullity and it was proper to reject it as surplusage. Dixon v. United States 1 Brock. 177 United States v.--id. 195; Grocers’ Bank v. Kingman 16 Gray 473.
The objections against the action which are grounded on irregularities and the lack of a warrant on the roll for the second and third wards are not sufficient to defeat recovery. The suit is not founded on any default, in making collection. Neither is it an action against delinquent tax payers. Its object is to recover from the officer and his sureties, for the benefit of the state and county, the very money which he as treasurer actually received for them and wholly fails and refuses to account for and pay over. The money went into his hands. He received it in payment of taxes, and as money belonging to the public. Whose money is it? Those who were assessed voluntarily paid it in satisfaction of their tax dues and in the discharge of their duty as citizens, and he as city treasurer accepted and received it as'money of the public which it was his official duty and province to receive and take care of for the public benefit. It was not his when it was paid and received and has not become his since. It belongs to the State and county. Can it be an answer to this suit brought for its recovery to say: true, the money was so paid and received and has not been accounted for; but it could not have been obtained if the tax payers who freely paid and do not complain had held back for compulsory measures ? We think not. Whether it went into Bunbury’s keeping by the right hand or the left, on papers regular or irregular, with or without a warrant, makes no difference. Its ownership in equity and his legal responsibility were the same. It was paid and received as tax money, and it was covered by his duty as city treasurer and by his bond. The doctrine rests on policy, reason and authority. King v. United States 99 U. S. 229 ; Gwynne v. Burnell 7 Clark & Finn. 572; Mason v. School District 31 Mich. 228; Clark v. Fredenburg 13 Mich. 263.
We have referred already to the peculiarity of the judge’s findings. He was of opinion that the sureties were not liable for any amounts received for taxes in the second and third wards because no warrant was attached to the roll for those wards, and that the amount found to have been paid over was required to be credited against the roll for the first and fourth wards on which there was a warrant. He found, as matter of fact, that an amount was ■ actually paid over not only equal to the whole sum spread on the roll for the first and fourth wards ($3305.87) but $76.85 in excess, and that there was collected from the tax payers of the second and third wards on the part of Bunbury $3459.38 and by Platt, his successor, $220.
The judge’s theory of the law enabled him to dispense with further facts. Holding that there was no liability on account of the second and third wards because there was no warrant, and that the amount ¡said in cancelled the entire assessment in the first and fourth wards where there was a wan'ant, the sum collected dn the latter wards was immaterial. He therefore made no finding of the amount actually collected in such wards. But as this court finds the law to be, it is necessary to have a finding on that subject, and we think it must be practicable. The sureties are not liable in this action for moneys not collected, nor for moneys lawfully accounted for, and as the finding now stands it cames with it an assumption that the sureties may be charged, not merely for what was collected in the first and fourth wards, but for the entire amount assessed, whether collected or not. The probabilities are very great that much less than the whole assessment was in fact collected.
The aggregate of collections in both districts, as well as the aggregate of payments over, ought to appear. Otherwise there can be no accurate basis for a judgment.
The case might have been sent back without discussion on the points of law, and such would have been the usual course. But as the controversy is one of public importance, and has been pending many years, and further litigation may possibly be averted, we have deemed it expedient to express our opinion on the ruling questions because we have no doubt about them.
The case must go back, and in case the parties think best to continue the litigation there must be another trial. The treasurer will recover his costs of this court.
The other Justices concurred.
I find as matter of fact in this case, that said Thomas A. Bunbury was elected treasurer of the city of Niles, on the first Monday in April, 1872, and that on the 28d day of November, 1872, he gave a bond to Samuel Hess, the county treasurer of the county of Berrien, in the sum of §17,318, the condition of which bond is as follows: “ The condition of the above obligation is such that if the above named Thomas A, Bun-bury shall duly and faithfully perform the duties of his office of treasurer of the city of Niles, in the county of Berrien, as required by the provisions of law which regulate the collection and return of taxes, reference being had to the warrant of the supervisor of said township attached or to be attached to the assessment roll for the year 1872, the obligation be void, etc.”
I find the city of Niles was then divided into four wards, numbered first, second, third and fourth. That separate assessment rolls were made for the second and third wards, and the first and fourth wards. That the amount of the state and county tax apportioned to be spread upon the roll, for the second and third wards, was $1965.47; that the amount of the state and county tax apportioned and spread upon the roll for the first and fourth wards was $3305.87. That Thomas A. Bunbury, the treasurer, or those representing him, paid into the county treasury the sum of $3382.72, an amount greater than the amount to be collected in the first and fourth wards.
I find from receipts given by tlie treasurer or his brother that there was collected by said treasurer, or those acting under him, from the taxpayers of the second and third wards, the sum of $3459.38. I find that about the 28th day of January, 1873, that said Thomas Bunbury left the city of Niles, absconded, and that on or about the 4th day of February, 1873, the council of said city appointed Henry O. Platt city treasurer of said city, and that there was afterwards collected by him, said Platt, on the assessment roll for the second and third wards, the sum of about $220. I also find that the warrant of the supervisor of the first and fourth wards was attached to the rolls of said wards, but that no warrant of the supervisor of the second and third wards was ever attached to the assessment rolls for said wards until after the appointment of Henry O. Platt as treasurer, said warrant being attached March 6, 1873.
I find as matter of law arising upon the foregoing facts:
First: That the securities upon the bond of the treasurer are not liable upon said bonds for the moneys received by said Thomas Bunbury, treasurer, for taxes in the second and third wards, there being no warrant of the supervisors attached to the assessment roll for the collection of said taxes.
Second: That the amount paid into the county treasury should be hold to be paid upon the roll of the first and fourth wards to which the supervisor’s warrant was attached. | [
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Cooley, J.
This is a bill to protect alleged rights of complainant to a certain building which she occupies with defendant Fournier, who is her husband, as a homestead. The building is upon land owned by a third party, and defendant Chisholm has a mortgage upon it given by the husband for the benefit of one Dekiese. This mortgage, not having been signed by complainant, she claims is void as to her.
It satisfactorily appears that the mortgage was given for moneys advanced by Dekiese from time to time for the very purpose of enabling the husband to build this house, and that it was only by means of these advances that the house was built. Complainant in effect admits this, though she also claims to have put a good deal of money into the house herself. On this subject her evidence is unsatisfactory. We think she has no equity to claim homestead rights as against this mortgage. Some interlocutory orders of the circuit court are complained of, but they were discretionary.
Decree affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Fargo, as assignee of Henry Hart, sued Dayton jointly with one John B. Hooker, under a declaration containing two counts — one in case for obtaining property under false pretenses, and the other in trover for the conversion of the same property. No process was served upon Hooker and it does not appear from the printed record that there was any return of not found.
The jury found a verdict for Fargo upon the first count and not upon the second. It is necessary therefore to examine into the nature of the count on which recovery was had, in order to see the bearing of some of the errors assigned.
It sets forth a bargain between Hart and both defendants, whereby Hart was to sell certain lumber to them and take in payment a note of Hooker alone. It avers that defendants caused Hart to sell the lumber by fraudulently repre senting that the note was good and Hooker responsible, and that Hart, confiding in the representations, delivered the lumber and took the note in payment, and that Hooker was worthless and the note valueless. It then avers an assignment of all claim for the price and value of the lumber, and of the cause of action growing out of the transaction, and that by reason of the premises plaintiff has been deprived of the use and value of the property, and that “ defendants on the said sale falsely and fraudulently deceived the said Henry Hart, as aforesaid, out of the said lumber,” etc.
The only effect which can be given to the count is that it is an action on the case for deceit, to recover damages for the fraudulent representations whereby Hart was induced to part with his property without any valuable consideration.
It is claimed that this cause of action was not assignable.
The general doctrine both at law and in equity has always been that nothing is assignable that does not directly or indirectly involve a right of property. It has been held repeatedly in this state that equity will not enforce the demands of an assignee of a right to sue for fraud, when the cause of action is confined to that. Carroll v. Potter Walk. Ch. 355 ; Morris v. Morris 5 Mich. 171; Brush v. Sweet 38 Mich. 574; Dickinson v. Seaver 44 Mich. 624. In Final v. Backus 18 Mich. 218, it was held that under our statute authorizing suits by assignees of rights in action, the general doctrine is that actions for torts are not assignable, and that only such as survive to the personal representatives of the injured party could be sued for by an assignee. That was an action of trover, and it was held properly brought because the statutes had expressly taken it out of the common lav.' rule. This case has been followed and affirmed in other decisions. Brady v. Whitney 24 Mich. 154; Grant v. Smith 26 Mich. 201.
By section 5828 of the Compiled Laws it is provided that “ In addition to the actions which survive by the common law, the following shall also survive, that is to say: actions of replevin and trover, actions for assault and battery,-or false imprisonment, or for goods taken and carried away, and actions for damage done to real or personal estate.” Except in cases of assault and battery and false imprisonment (which cannot by any construction be treated as rights touching property), the actions saved had been preserved by English statutes, and had been quite generally recognized as belonging to executors, although not surviving by the old common law. Assignments of such rights have not been held unlawful universally, although there may be some cases so holding.
We have found no support for the doctrine that causes of action on the case for deceit are assignable. There are not many cases bearing on the subject, and this is, no doubt, because the common law rule has met with general acquiescence. The case of Zabriskie v. Smith 3 Kernan 322, is directly in point against the validity of such an assignment, and is a stronger case than the present. There the deceit was practiced against a commercial firm of several members, and the action was brought by the remaining members to whom an outgoing partner had transferred his interest in the assets. It was held by the Court of Appeals that nothing passed by the assignment, and that the right was not assignable. The case is instructive on the whole subject, and points out quite clearly the distinction between personal torts and property interests.
This case was, however, relied on by defendant in error on the present record, as holding that all objection to the assignment was waived by pleading in bar. No such decision was made. It was held that the omission of one of several joint parties when all should have sued together was not fatal unless pleaded in abatement. This is familiar doctrine. The plaintiffs there were all original parties aggrieved. The only defect was that there was one more aggrieved person. If Fargo and Hart had been partners and Fargo had sued alone, the cases would have been parallel. But in the case before us Fargo never had any cause of action alone, or jointly with Hart, until Hart assigned to him. It is not a case of nonjoinder, but a suit by a party who in the eye of the law was never injured. The defense in Zabriskie v. Smith, it was suggested, should have been by demurrer, but it was pointed out that this method had been substituted by the Code for a plea in abatement in cases where the defect appeared in the complaint.
The count in trover was correct, and had the jury found a verdict based on that, the recovery must have stood unless some other error appeared. We do not know how it happened that they found for the defendant below on that issue. They have done so, nevertheless, and the plaintiff below has taken no exception to any ruling that they may have imagined interfered with such a finding. From the testimony on the record we should have supposed them more likely to find the second count established than the first, which sets out the contract as joint throughout, concerning which there was controversy.
As the record is presented we must reverse the judgment. As the only count on which the verdict rests fails to show any cause of action, there can be no new trial, and plaintiff in error is entitled to costs in both courts.
The other Justices concurred. | [
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78
] |
Marston, C. J.
This was an action of ejectment, brought by one of the children and heirs-at-law of Pul of D. Orego, deceased, to recover her interest in lands of which he died seized. The defendant claims title under an administrator’s sale made in 1861, and also to be a bona fide purchaser.
The plaintiff claims that no debts were ever proven against the estate; that the real estate of the deceased could only be sold to pay debts; and that at ' the time license was granted to sell the real estate the probate court had lost all jurisdiction in the premises by lapse of time.
Crego died August 29, 1856. No commissioners were appointed to allow claims. Eliza Orego, executrix, November 16, 1857, petitioned the probate court for license to sell certain real estate, alleging therein the existence of debts amounting to $500. License was granted February 1st, 1858, to Joseph Jones, administrator de bonis non, the executrix having married, and a sale made March 26, 1859, which was afterwards vacated and set aside by the probate court. May 7,1861, Joseph Jones, administrator, filed a petition for license to sell the real estate, alleging therein debts to the amount of $500, which was heard June 18th, 1861, license granted and a sale made thereunder August 3d, 1861, which was confirmed August 15th, 1861.
If the probate court had jurisdiction to hear the petition filed May 7th, 1861, and grant a license thereunder, then under section 4596, 2 Comp. Laws, the defendant is protected.
No commissioners were appointed for the allowance of claims, nor did the judge of probate appoint any time or place for the allowance of claims by himself; and until some provision was thus made to give creditors an opportunity to present their claims, we cannot say they were cut off, under the facts and circumstances of the present case.
That debts existed against the estate, and were informally recognized as valid and subsisting by the probate court, cannot be controverted. The probate court, under the statute, could have allowed the original executrix four years to dispose of the estate and pay the debts, and an administrator de bonis non having been appointed, six months’ additional time could have been given him, besides the time between the date of his appointment and the time the executrix was first incapacitated from acting. The time which could thus have been allowed would extend to August, 1861, and in this case the petition and license under which the sale was made, were previous to that time. The case had not therefore passed beyond the jurisdiction of the probate court, and although it does not appear that the time for thus settling the estate had been extended, jet this is not necessary. A failure to so extend would not deprive the court of jurisdiction.
Even then if the sale could thus be inquired into in a case like the present, still it does appear that the court was acting within the limits of its jurisdiction, and action thereunder was valid. Where an estate has not been formally closed, we do not wish to' be understood as holding or intimating that a license granted after the time fixed by the statute would be necessarily void, in a case like the present, when inquired into collaterally. •
The judgment must be affirmed with costs and the record remanded.
The other Justices concurred.
The executrix was appointed Nov. 7, 1856. | [
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Campbell, J.
Hansen replevied certain household furniture taken from him by defendant Prince as agent for one Young under a provision in the nature of a chattel mortgage in a lease, August 15, 1877. Young, as owner of certain premises in Grand Rapids, leased them to Hansen for three years, at $500 per annum, payable monthly in advance. The lease contained clauses whereby a lien or mortgage was to exist on all property then or thereafter on the premises, with authority in default of rent or other covenant broken, to seize and sell enough to pay the amount due and costs.
On the 29 th of July, 1878, when no rent was in arrears, and none would accrue until August 15, Young sold and conveyed the leased property by warranty deed to Mrs. Lucinda E. Judd. At about that time it was agreed between Mrs. Judd and Young that Hansen should pay to Young the rent to grow due up to December 1st, and Hansen was notified of this and paid rental to Young up to September 15th. It is not found that this agreement was in writing or was in the deed or in any way referred to in it, and it is not found it was made at any particular time as simultaneous, anterior or subsequent.
On September 16, 1878, Mrs. Judd sued Young before a justice and garnished Hansen, who answered and admitted his liability as before described. In each instance of suing out garnishee process the rent sought to be reached by it had already accrued. Judgment was recovered before the justice against Young, for more than the amount disclosed, and he removed it by certiorari into the circuit court, and gave the statutory bond. The judgment was affirmed March 20, 1880.
The present replevin suit was begun August 15,1879, and tried on April 26, 1880. The circuit court held that by the sale to Mrs. Judd all of Young’s rights under the lease itself and the security contained in it passed to the vendee, and that the arrangement to allow rent to be paid to him until December did not give him any right to enforce the mortgage clause. It was also held that the garnishee proceedings were not destroyed by the certiorari.
We think that the court held correctly that the right to receive payments up to December, 1878, did not involve any assignment of the lease itself or any direct interest in it. The agreement was simply that certain moneys which belonged to Mrs. Judd should be paid to Young. There was no reservation whatever in the deed to Mrs. Judd, and she .was thereby vested with the entire title to the land, subject only to Hansen’s tenancy. She was thereafter the only landlord, and Young ceased to have any interest in the freehold, or any claim except such as Mrs. Judd gave him, which is not found to be any control over the securities. ' Such an interest carries no legal title. Hartford Fire Ins. Co. v. Davenport 37 Mich. 609.
The claim that under our present laws a deed of land does not transfer rights to enforce existing leases is unfounded. It has been decided otherwise. Perrin v. Lepper 34 Mich. 292 ; McGuffie v. Carter 42 Mich. 497. There can only be one landlord at a time, entitled to enforce claims under leases. The questions relating to the garnishee proceedings are, therefore, not important and we do not consider them.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Majrston, C. J.
This is a certiora/ri to review the proceedings had in the Recorder’s court in opening a private alley. The plaintiff raises a number of objections. Among others he insists that the act, under color of which the proceedings were taken, is unconstitutional in so far as it attempts to confer authority to open private ways, in that the act embraces more than one object; the title .confines the object to the condemnation of private property for public use; and the act provides for an assessment for a private purpose.
The act in question, No. 201, Pub. Acts 1877, p. 246, seems to have been drafted with care, and yet in my opinion there are serious difficulties in the way of providing in the same act, for the opening of both public and private ways. The title of the act provides for the opening of highways, streets and alleys 'for the public use, but the act goes farther than this and also undertakes to give power to open private roads and alleys.
There is no doubt but that alleys in cities and villages may be opened under the provisions of this act where necessary for the usual mixed use of the public and private individuals, as in a certain and qualified sense they may be. In this case the proceedings were to open the alley for the sole private use and benefit of certain individuals, and because of a private necessity therefor. While in either case the object of the act is to provide for the opening of ways, and while many of the provisions applicable to the opening of public highways would be equally pertinent in an act for opening private ways, yet the analogy beyond this is not so clear. To say the least it might be very questionable whether under the title of the act in question, provisions could have been incorporated in the body, applicable to or authorizing private property to be taken for railroad and similar purposes. It may be that the objects aimed at in the constitutional provision supposed to be violated, would not apply to the fullest extent in the present case, and yet we cannot say that some of them would not, and that the act in question therefore is free from doubt.
There is another serious difficulty in this ease. That the legislature may provide for the opening of private roads under our Constitution is clear, and private property may be taken for such purpose. But can the property of an individual be taken for a private road for the use of one or more third parties, and a part of the expense of opening the same be assessed upon such property in the shape of benefits ? Or must not the parties asking a private road, and whose necessities are the foundation for taking private property of others, pay the entire cost and expense ? Can such private way be considered, within the meaning of the law, a benefit to any persons over whose land it may be laid, although they do not ask for or use the road, or at least to whom such road is not' in any true sense a necessity ? These are difficult questions to answer in the affirmative, and while it is possible the act in question could be so construed as not subject to any such objections, yet the proceedings in this case can receive no such favorable construction.
Without discussing the questions raised, at any greater length, I am of opinion that the proceedings in this case cannot be sustained and must be quashed, with costs to the plaintiff.
The other Justices concurred.
The title of (he act is: “An Act to provide for taking of private property for the public use or benefit and for the opening of highways, streets and alleys, by the cities and villages of this State.” | [
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Marston, C. J.
Bradford brought suit in justice’s court, declaring therein upon a special contract whereby the defendant agreed to pay him one hundred dollars for services done and performed in forwarding the sale of certain lands of the defendant, which defendant had agreed to pay when the lands were sold, and alleging that the lands had been sold. He declared also upon all the common counts. The plaintiff recovered judgment in the justice’s court, and also on appeal in the circuit. The case comes here on writ of error.
It is claimed that the declaration is insufficient. "We cánnot concur in this view. Declarations in justice’s courts are Liberally construed. We do not find, however, any fatal defect in the special count, and even if such was the case, we know of no good reason why he should not recover on the common counts.
It is also claimed that the plaintiff could not recover unless he proved that he had sold the land for $2100, while in fact the land was sold not by him but by the defendant for $1000. The evidence given by the defendant may have tended to prove such a contract, but the evidence given on the part of the plaintiff was very different, and he had a right to have the case submitted to the jury upon his theory of the case. The charge of the court was as favorable to the defendant below as the case would permit. As the court instructed the jury, if the plaintiff was employed by the defendant to sell the land, and did sell it; he would be entitled to recover the agreed consideration, but if he did not make or aid in negotiating the sale made he could not recover in the action.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
In Flint & Pere Marquette Ry Co. v. Lull 28 Mich. 510, it was held that the liability of the company under the statute for injuries to cattle, by reason of the company’s fences not being put up and maintained, was not affected by the contributory negligence of the owner of the cattle. This disposes of several of the errors assigned in this court. It may be that the modification of the defendant’s sixth request, if standing alone, could not be sustained, but when we examine the' entire charge as given, we are of opinion that the error, if any, was cured. The charge on the whole was even more favorable in some respects than the law would warrant.
The judgment must be affirmed with costs.
Campbell and Graves, JJ. concurred.
Cooley, J. did not sit in this case. | [
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Graves, J.
The complainants are owners of large bodies of wild land situated within the limits of the township of Michigamme as at present organized. The lands are from two to twenty miles remote from any settlement and are as yet a part of a vast unbroken wilderness. After the township of Michigamme was organized the school inspectors proceeded to form school-district number one, embracing the village of Michigamme in sections nineteen and thirty of town forty-eight N., in range thirty W., and other lands immediately contiguous.
The district authorities subsequently converted it into a graded school-district.’ Prior to this change of status, which was self-effected, no enlargement of territory was possible beyond nine sections. But having changed the organization the trustees signified their willingness that the rest of the township should be added, and the inspectors, proceeding to act on this assent, made an order to attach the territory mentioned, which consisted of five surveyed townships of wild land.
The parcels owned by complainants belong to this tract, and in’ 1879 the district officers and other authorities treated them as lands taxable within the district and proceeded to rate them accordingly, and a tax for school purposes of the district other than the one mill tax was imposed. It was not paid and proceedings being taken to enforce it by means of a public sale under the direction of the Auditor General, complainants brought this bill to enjoin it. The defendants filed a general demurrer which was sustained by the circuit court and complainants appealed.
The general question is, whether the act of the school inspectors operated to incorporate complainants’ land in the district; and the answer depends on the power of these officers, in the case of a graded district engrafted on a single ordinary one, to enlarge the domain if the trustees so desire by adding any outlying unorganized and unpeopled territory, however extensive, which may happen to be temporarily within the bounds of the organized township. Defendants contend for the authority and the complainants deny it. As it did not exist before the change of corporate character, but was denied during the primitive stage of the district, it must have arisen, if it now exists, because the distinction between the former and present conditions has been supposed to point it out as necessary. It is not found in any express terms and, if present, it rests on implication. This is admitted.
The general law for organizing school-districts has always maintained certain distinct characteristics. The original arrangement of townships into districts, and the right to make alteration from time to time of such original districts has been confided without exception to the inspectors by the general law. At the same time, however, there has been no deviation from the rule that no primary district should contain more than nine sections. The attention of the Legislature has been repeatedly drawn to the subject, and the result has been uniform. The evidence of fixed policy is conclusive. Rev. St. 1838, p. 245, § 24; Rev. St. 1846, p. 227, § 71; Act 119 of 1873, p. 164; Act 230 of 1875, p. 281; Act 77 of 1877, pp. 60-61.
It became apparent to many at an early day that although a great deal in the total was being spent under our system of primary schools, there was yet in many cases no corresponding return of benefits, and the belief spread that the chief reason was that the means expended were too much scattered and that combination of expenditures and concentration of effort so far as fairly practicable would cause a great improvement. The Revised Statutes of 1846 recognized this phase of public sentiment, and made provision for the formation of union school-districts. The plan was not to construct new districts from aboriginal territory, but to provide for consolidating existing districts when deemed expedient. The new district was to be a union district, that is to say, one formed from two or more of the elementary districts. Rev. St. 1846, ch. 58, § 92.
Now as each original district might lawfully embrace any quantity of land not exceeding nine sections, and as the union district was to be formed by uniting two or more of such original districts, it is manifest that it might contain more than nine sections. Hence the method for constructing these districts was independent of the restriction limiting the area to nine sections, and this was considered unobjectionable in the first setting up of a district where the change would consist in uniting territory and interests already under district organization and moreover where would be contemplated such a multiplication and distribution of school accommodations as would be just and reasonable for all parts of the territory.
No one could doubt however that changes might become needful at some time; but it was not regarded as wise to allow to inspectors the same power over the geographical extent of these districts that they held over that of primary districts. The provisions for establishing these districts were however interwoven with the general law, and it was understood that the inspectors’ power under that law to alter districts was applicable to these. Impressed by these considerations the Legislature proceeded to qualify the power by requiring the assent of the district, as a preliminary, to any alteration of the bounds of a union district. This was effected by amendment of section 92, supra. Laws 1849, pp. 227, 228 ; Laws 1850, p. 20.
The next change to which it is necessary to refer was 1855. An elaborate act was then passed to enable school-districts to acquire school-house sites and for other purposes. A section was inserted providing that no alteration should be made in the boundaries of any school-district having a wiion school without the written consent of a majority of the district board of such district. Laws 1855, § 13, p. 42. Four years later “ an act to establish graded and high schools ” was passed. Laws 1859, p. 446. The last section declared the repeal of section 92 with the amendments of 1849 and 1850, supra. And the effect was to remove all the positive injunctions against altering the bounds of union districts except the injuction contained in section 13, supra, of the act of 1855. It also had the effect to efface from the general chapter concerning primary schools the provision for forming union districts. The great purpose of the act of 1859 was to provide for forming union districts through the concurring votes of the districts desiring union, and that certain single districts on voting in favor thereof might transform themselves into graded and high-school districts.
So far the special provision against alteration of thé bounds of districts had been confined specifically to union districts.But after this statute of 1859 permitting certain single districts to organize themselves into graded districts, and in 1871, the Legislature proceeded to amend section 13, supra, of the act of 1855. It was then ordered to read as follows ?
“(2411.) Sec. 13. No alteration shall be made in the-boundaries of any school-district organized under the law for' graded and high schools, without the consent of a majority of the trustees of said district, which consent shall be spread upon the records of the district, and placed on file in the-office of the clerk of the board of school inspectors of the township of which the reports of said district are made;: and districts organized under the law aforesaid shall not derestricted to nine sections of land.” Laws 1871, p. 277.
It is on this enactment that defendants rely. The district was converted from a single primary one to a graded district under the law mentioned in this amendment of 1871, and the proceeding to annex the outlying territory was taken on the strength of said amended provision.
When this statute is read in connection with the various other provisions of the school law, it appears to be wanting in precision and to be difficult of application in many cases to which the generality of the terms may be said to extend. It forbids any alteration in the boundaries of such districts as are organized under the law for graded and high schools except in so far as the trustees make known their consent to the inspectors. The restraint in terms applies to every kind of alteration, whether by increase or diminution of territory or by any change not affecting the quantity of .territory. And there is no express mention of any right to add territory either from organized or unorganized tracts with or without the consent of the trustees. The statute applies to the districts as it finds them after their being framed into graded districts under the law therefor; and hence contemplates them under two classes, one comprising graded districts converted from single primary districts, and which on such conversion are necessarily not more than nine sections in territorial extent, and the other consisting of districts formed by the union of two or more primary districts and which on such formation may contain more than nine sections.
Again, the terms of this act seem to imply an existing power in the inspectors to alter the bounds of these districts, and that such power is free from district control except as qualified by requiring corporate assent. And the final clause appears to convey the implication that the restriction to nine sections would apply unless expressly precluded. The peculiar structure of this statute no doubt lends a pretty strong support to the contention of defendants; but so exorbitant would be the results to which their construction would lead that it ought not to be adopted if any other more satisfactory on the whole can be found, and in my judgment the case is open to a different view, which is not only reasonable in itself, but exempt from the mischiefs, or at least the main ones, which appear incident to the position of the defendants.
The act of 1871, and section 71, supra, of the law, are in pari materia. Both provisions relate to the organization and arrangement of school-districts, and the former one indubitably refers to and is connected with the latter. The reason is extremely strong for concluding that it was the grant of power to inspectors in section 71 to change districts bounds that the Legislature had in mind in passing the provision of 1871 concerning the stability of boundaries, and no one will hesitate to admit that the clause exempting graded districts from the limitation to nine sections was intended as a virtual qualification of section 71; and this fact-is sufficient to confirm the previous inference that the one provision about changing boundaries was made in reference to the other and to go along with it. These regulations must therefore be considered together, and the meaning of the act of 1871 must be judged of by comparing it with the others. Joy v. Thompson 1 Doug. (Mich.) 373; United States v. Freeman 3 How. 556; Rex v. Loxdale 1 Burrow 445.
Applying attention then to the 71st section of the General Law we immediately perceive that no power was then given or contemplated to alter districts by additions from unorganized territory. The power to alter was confined to territory already cut up into districts, and was to be exercised among existing organizations, when the change would merely consist in withdrawing territory from the jurisdiction of one corporation and placing it under the jurisdiction of another. The only mode permitted for dealing with aboriginal territory was by dividing it into ordinary primary districts, and the same rule remains. The act of 1871 has not attempted to change it. In this and some other respects it is dependent on the other statute, and is explained and controlled by it. It was not the purpose of the Legislature in passing the statute of 1811 to enlarge the powers of school inspectors over aboriginal territory and give them a new and unprecedented authority to annex to a district at its request an unorganized region as large as some states.
It is unnecessary to go further. In my judgment the act by which complainants’ lands were brought within the district was not warranted by law and the relief sought should have been given.
The decree must be reversed and one entered in accordance with the prayer of the bill.
The other Justices concurred. | [
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Campbell, J.
In this case Feldman sued Mette on a bond conditioned to pay the debts of a firm of which they had been partners, but whose assets were sold to Mette. The sale included the premises occupied by the firm, the title of which had been entire in Feldman, and he gave a deed on the sale conveying a clear title.
The articles of partnership set out the land as forming part of the assets. At that time there was a mortgage on the land, which, it was admitted by Mette on the trial, was a firm liability. After the firm was organized Feldman conveyed one undivided half of the land to Mette, but the deed remained in a desk unrecorded. Shortly before the dissolution the partners quarreled, and Feldman destroyed the unrecorded deed, and about that time gave two notes of the firm to take up the mortgage, and, as he admits, did so for the purpose of destroying the title.
The defense rests on the ground that this estopped Feldman from claiming these notes to be a partnership obligation.
The destruction of the deed did not revest the title in Feldman, but it deprived Mette of the means of proving his title. If things had remained in that shape, we think that Feldman would have been estopped from calling on Mette to pay the notes imtil he had made him good. But the subsequent conveyance of a clear title before the bond of indemnity was given removed this difficulty. Mette received the consideration, and the deed secured him in its enjoyment The notes were given to cancel a lien which he had originally recognized, and which was a charge on the firm by mutual understanding. They were, therefore, very clearly partner, ship obligations for all purposes, and he was rightly held bound to pay them.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
Bosenthal sued Dyer for the conversion of a stock of goods which were taken from the possession of plaintiff at Sheboygan. Dyer was at the time sheriff of Alpena county, and justified under an attachment against Samuel Bosenthal who, he claimed, was the real owner of the goods and had transferred the possession to plaintiff with intent to defraud his creditors. Plaintiff recovered judgment in the circuit court, and the case comes up for review upon exceptions.
I, Plaintiff, after proving the seizure of the goods, was permitted against objection to give to the jury an estimate of the damage he had suffered by the breaking up of his business. This evidence could only have been admissible after he had shown that his business was actually broken up. This he had not shown: it was consistent with all that appeared that he may have gone on without serious interruption.
II. Tinder a claim that it would tend to show an indebtedness from Samuel Bosenthal to himself which may have constituted a consideration for the transfer of the goods to him, plaintiff was permitted to show that Samuel received from him certain cheeks a year before. But these had no tendency to show an indebtedness. The more legitimate inference was that they constituted a payment, rather than a loan. The parties were competent to testify on that subject, and might use the checks as memoranda; but by. themselves the checks proved nothing.
III. Receipted bills of goods from Samuel Rosenthal to the plaintiff were offered and received in evidence for the double purpose of showing payment and also of showing the value of the goods. We may say of these as of the checks, that they might be used in connection with the evidence of the parties to show a debt and its payment, but the fact that goods are put down in such bills at a certain price is no evidence they were worth it.
IV. One Anspach, a witness for the plaintiff, was permitted to give his opinion of the value of the goods on inspection of the inventory and invoices, when his evidence showed he had no personal knowledge on the subject. He had been in the store when the goods were there, but had never inspected them, and was as incompetent to express an opinion upon value as if he had never been near them.
V. As having some tendency to show value, defendant offered to show that he sold the goods at public auction at Alpena, and that they brought certain prices which were much less than the value which plaintiff claimed to have proved. This evidence, we think, was improperly excluded. It was within the rulings in Smith v. Mitchell 12 Mich. 180; Davis v. Zimmerman 40 Mich. 24, and other cases decided by this court. It is true the sale was made at a different place from that of the alleged conversion, but no reason is given for supposing the values would have been essentially different at the two places. The auction sale does not fix the price; it is only evidence bearing upon the value; and the jury are likely to make all proper allowance.
VI. Defendant also offered in evidence on the question of value the appraisal made of the goods when they were taken on the attachment; but this, we think, was rightly excluded. The appraisers were chosen by the defendant himself; and 'it would be unsafe to permit him to select the persons whose appraisal should be evidence in his own favor. Such an appraisal was received in evidence against the sheriff in Worthington v. Hanna 23 Mich. 530, but even there, was considered but slight evidence. To put the witness upon the stand is much more satisfactory, and more likely to reach a just result.
VII. The trial judge, in his instructions to the jury, informed them tliat if the goods were transferred by Samuel Rosenthal to plaintiff in payment of an existing debt, “ it is no matter what the intentions of the parties may have been; how immoral, how dishonest, how unfair or how fraudulent in respect to creditors,” — “ no matter what may have been the condition of the minds of the parties as to whether the intent was to delay, hinder or defraud other creditors,” and the plaintiff would then be entitled to recover. This was putting it altogether too strong. It is quite possible to pay an honest debt in an unlawful way; and if the property had been transferred at a price greatly below its real value, the jury would have been perfectly warranted in finding the transaction fraudulent and void. But it might have been equally void on other grounds.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell, J.
Plaintiff in error was appointed by the probate court for the county of Washtenaw, in 1861, as guardian of defendant in error, then about six years old, her name being then Goodrich. In 1876 she married. Mr. Gott at the end of his trust filed his account, which was allowed as presented, no contest being made in the probate court over its correctness. The ward, however, appealed to the circuit court for the county of Washtenaw, setting up four grounds of complaint, which were in substance that the guardian had failed to keep money invested, had charged for excessive expenditures and made over-claims for compensation, and had in general disregarded his duty and thereby lost his right to compensation.
No issues were framed in the circuit court, but the appellant demanded a jury. The cause was in advance of any trial submitted to an auditor, Thomas Ninde, who formulated the account and reported it in accordance with the claim of the guardian. On the trial several questions were presented, all supposed to bear upon the grounds of appeal. By stipulation, the auditor’s report was made conclusive as to moneys received and expended, leaving the questions open as to the reasonableness and correctness of the payments and charges.
The finding of the jury charged the guardian with nearly twice .as much interest as he was shown by this report to have received, the difference being probably intended to include interest which might have been earned by more careful investments. The outlays for the ward and for trust purposes were allowed substantially as charged. His claim for compensation was left out almost entirely. The finding does not show the reasons for any of these results and is silent concerning facts.
As far as we can determine from a comparison of the report, which is part of the record, and the finding, in the light of the bill of exceptions, we infer that while all of the guardian’s money expenditures were approved, he was regarded by the jury as having lost all claim to compensation by reason of fault, and as having subjected himself to a charge for interest because he did not invest promptly, and at the best rates.
The exceptions taken on the trial all bear upon the matters involved in these results, and may mostly be included under _ a few heads. They present the inquiry whether there was culpability in not accounting — whether the guardian could rightly expend more than the ward’s income — whether he was not extravagant in allowing or making expenditures— whether he was culpable in the training of the ward — whether he was culpable in not making larger and more lucrative investments — -whether he was entitled to furnish goods himself, or to charge for legal services, and whether neglect in any of the duties of his trust deprived him of a right to compensation. As these are all mixed up with each other in the record, and seem to have gone to the jury together, we shall not take up the exceptions separately when they can be dealt with together. The conclusions at which we have arrived concerning the proper form of the litigation will make some questions unimportant.
Before going into the specific subjects we may properly refer to some points made on the language used by the court during the trial. There is some reason to think that the course taken on the trial- created a degree of impatience in the trial judge, which led him to rather sharp comments on facts and testimony, some of which we think had a necessary tendency to prejudice the jury. It is impossible for an appellate court to appreciate all the surroundings of a trial, and we are bound to believe that the trial judge would not intentionally make any remark provoked or unprovoked by the methods of the trial, or by his view of the testimony, which would deprive a party of his rights. We think, however, that remarks were made which could not fail to favor the notion that the guardian was culpably lax in his duties, and that relatives and others had supported the ward by reason of his neglect. This, on any state ,of testimony, was going too far. > It was also error to intimate that proceedings in this case could properly be made to deter other guardians from doing as this guardian did. Every case must stand on its own merits. The effect of these suggestions was manifest from the verdict, which upon some points is not supported at all by proofs.
To appreciate the other questions a brief statement will be required.
The ward, when the guardian was appointed, was of tender years, and not enjoying any parent’s care. The guardian made arrangements to have her cared for in the family of an uncle and subsequently in that of an aunt. The estate which she was then presumably to enjoy was not productive or determined. It was about nine years before any considerable sum came from it into the guardian’s hands. In 1871 he received from it $1610, which with a few scattering payments made earlier barely repaid the previous outlays for her board, clothing and other necessaries. After this the guardian received in 1873 from the same estate between four and five thousand dollars, and this was all the funds which at the time of his appointment, and for many years after, he had any right to expect would be received. The child, however, belonged by all her associations to intelligent and reputable people living in a comfortable way, and was entitled if possible to corresponding nurture. In 1873, by reason of the death of a relative in New York, an additional fund was received of about $9000. The death occurred a little earlier, and there were necessary delays in procuring the money, though no litigation. In 1873 the entire funds from all sources were realized.
For his services in going to New York and obtaining the possession of the fund there, the guardian in addition to his outlays charged $500 as extra compensation for his services as a lawyer in connection with his ordinary services as a guardian.
Up to 1871 he charged $25 a year for his services. After that year he claimed $300 a year.
When the ward became of proper age — about 15 or 16 years — he purchased a piano for her. During a portion of her minority he was in mercantile business, and furnished goods himself, instead of buying them. He also sent her to a boarding school in Canada. There was testimony introduced for the purpose of showing that he could have got board cheaper, and that she received more clothing and other supplies than some of the witnesses deemed necessary, and was not careful of them, and gave more or less away.
So far as her boarding and schooling expenses are concerned, we do not think there was anything which ought to have gone to the jury to impugn them. The law is entirely well settled that the guardian’s discretion in such matters stands on a very similar footing with a parent’s, and that he is not compellable to prefer mere economy of cost to the welfare and comfort of his ward. He was justified in taking considerable pains to secure the care and oversight of a near relative, and in paying heed to her representations if he really regarded them as trustworthy. There is nothing tending to show any want of good faith in this matter, and the jury should not have been allowed to treat it as if there had been. The choice of a school stands on a very similar footing. He was also quite right in doing what he could to prevent the danger of such alienation of feeling as might impel the ward to resort to deceit or sly conduct. The uncontradicted testimony shows that the young lady was- somewhat wayward, and was also lacking in careful. management and preservation of her clothing and personal articles. The affirmative proof on this subject and of the efforts, of the guardian and judge of probate was not explained or contradicted by Mrs. Culp, and there was an entire absence of any show of want of good faith. The presumption is not against the guardian, and in the present ease the auditor’s report was of itself prima facie evidence, apart from all other considerations.
The claim that the outlay for clothing and other advances was excessive demands a little more attention. The expenditures for such purposes, where the articles are not out of proportion to the ward’s social position, if made in good faith, and if not exceeding the ward’s means, cannot usually be held improper, under the same discretion before referred to. Aside from their limitation on account of income, upon which we shall remark presently, a bona fide discretion cannot be properly reviewed, unless in such extreme cases as seldom can arise with any but large estates.
Whilst it is just and necessary to require guardians to be careful, the law cannot and does not hold them responsible ex post facto, merely because some more prudent or sagacious person might have done better. The majority of guardians, especially of persons of moderate means, must be selected from friends or relatives who would take an interest in the child, and not upon mere financial and business principles. Guardians on the average cannot be expected to be thoroughly versed in the niceties of law, or in the knowledge of business. Honesty and kindness, without more than a very ordinary skill in money matters, are about all that can usually be expected. It would lead to no good result to require such liabilities as would deter ordinary men from accepting such trusts, and would not only tend to keep out of the account the most essential elements of kindliness and sympathy, but would probably have an equal tendency to encourage sharpness in those who are treated as dealing at their peril.
A guardian whose ward’s estate is sufficient to furnish an income that will with economy maintain and educate her suitably, should not exceed it without adequate reason. But in this country, while it is prudent to obtain leave in advance, it is not necessary, if circumstances justify the excess. But the rule is always to be applied with some discretion. The guardian is justified by the authorities in looking not merely at present and actual income but at future and probable resources. If the income is narrow he should also look to the future welfare and standing of his ward, which may in his eyes, as in those of a judicious parent, render it wise to secure desirable results by a sufficient outlay. In many if not in most cases, in this country, it is not possible to secure a regular and reliable revenue, which will not at times fail or be delayed. And when the infant’s property is too small for the income to furnish reasonable nurture and support, the principal must necessarily be drawn upon.
Upon the present record it is not within our province to pass upon the facts. But it is proper to mention, that the expenses, apart from the guardian’s charges, did not average per annum the ordinary legal interest upon the fund received in 1873, and still less on the whole fund received. Moreover during the years when some of the largest outlays became necessary, particularly the piano, the fund was all in perspective, and there was no income to speak of. During the fifteen years of guardianship, there were less than four, when it was possible to have had the principal fund earning inter est at all. If this question should ever come up again for serious consideration, all of these matters would have to be looked at. As the jury have found in the guardian’s favor on this point, we need not refer to it further.
Upon the guardian’s duty to invest, the findings on the record give us no definite data. We need only say, therefore, that he should be held for interest not actually received, only when his delay has been unreasonable. He may properly retain enough moneys to secure the means of making all necessary outlays, and he may wait until he can find safe investments in sums of reasonable amount. He should look not merely to the value of the security but to the promptness of the borrower, and need not accept without reference to this. For this reason public securities have always been held lawful. He cannot be censured for honestly investing in these or on any legal interest where it is the best which he finds readily obtainable. He cannot be held for neglect beyond seven per cent. That is the rate imposed by law in the absence of contract. The cases in which compound interest may be charged to a delinquent we need not now discuss.
The question of the guardian’s compensation is not put in a satisfactory shape for full consideration. There are, however, some things requiring attention. It seems to be supposed there are some rules of law which on a given state of facts would fix it. But this is a mistake. The matter is one left to the consideration of the court passing the accounts, and the amount has nothing to do with the account as an item of it at all, and cannot in any case be considered by the
By the old law a guardian could get no compensation whatever, but was merely protected in his legitimate expenditures. The modern doctrine, which is recognized by our statutes, regards him as entitled to such reasonable compensation as the circumstances warrant. Many elements may enter into this determination. The size and character of the estate, the amount and kind of services rendered, the dura tion of tbe trust, the duties in the given case as involving oversight of the person to a greater or less degree, may all have their weight. All we can do in a case so imperfectly presented as this is, will be to refer, very generally, to the practice which seems most approved.
If a guardian is a professional man and renders professional services, there is no absolute right to demand pay for them on the same footing as a stranger, and yet in some cases it might be entirely proper. If the estate is large, and if the guardian is appointed chiefly for business purposes, there is no special reason why he should not be paid as a business man. But on the other hand in small or moderate estates, or where the helplessness of the ward and need of nurture and protection may be important elements in the choice, such a. rule might be ruinous. Courts can never properly loSe sight of the fact that primarily the duties are to be regarded as personal and honorary. Such offices are not to be given or assumed with a view to profit. The compensation must be proportioned not so much to the market or usual value of such services as to the ability of the ward to bear them. A guardian when he has assumed the trust must be as faithful in a small estate as in a large one, without reference to the compensation. lie should be paid fairly if the estate will allow it to be done without disproportion or injury. But if it will not, then he giust be satisfied with a smaller reward. Upon the present record, if the ward had no estate beyond what was managed by the guardian, we should not regard his claims as made for $300 a year, and $500 extra fees, as reasonable.
We have already hinted that this record is badly framed. It seems to have been assumed that the proceeding in the probate court was one which, when removed into the circuit court, would become substantially a common-law controversy. This is a great mistake, and the statute has been misconstrued. A guardian’s accounting is an equitable and not a legal proceeding. It involves not merely the ordinary items of debit and credit, but also considerations as to the propriety of» charges and investments and as to the allowance of compensation, with which a jury cannot meddle. The statute does not in such cases contemplate a general trial or general verdict. It requires such matters of fact as are disputed to be submitted on proper issues to a jury. Comp. L.. § 5220. But in such issues as the present, although the findings of the jury, on proper instructions, may be more conclusive than those on a feigned issue, nevertheless they serve no other purpose than to determine definitely such specific facts as, when found, will aid the court in determining those questions which belong to the equitable discretion of the court itself. Such questions of discretion in a case like this, might include the responsibility of the guardian for failure to keep investments, the necessity or propriety of exceeding the income, the rate of compensation, and some others. We are not called on, and it would not be proper, to anticipate what issues ought to be framed in this case. None whatever were drawn up, and the jury proceeded under the rulings to do what belonged to the court.
No ground of appeal ¡jointed out any objection to the securities actually taken, definitely, if at all, and no question was made on the trial concerning them. But the final decree treated all the fund with one or two exceptions as uninvested. The guardian represents the ward in taking proper securities and has a right to turn them over. We®have no finding in this case to determine whether they were proper or not.
The failure to account annually, as provided for by the Laws of 1873, is not necessarily to be regarded as a cause of forfeiture. That law in terms only requires accounting on citation, but it undoubtedly contemplates that it should be done without. But it has never been held that such a failure, unless leading to injury, should be visited with serious penalties.
Some other matters were discussed which we need not dwell upon. The case will have to go back and definite issues should be made up before they are submitted again to be disposed, of on the facts. There will be no occasion to disturb tbe auditor’s report which is based on the figures of the accounting.
The order of the circuit court must be reversed with costs, and the cause remanded for further action.
The other Justices concurred. | [
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] |
Marston, C. J.
On the 28th day of February, 1877, Peter Baths commenced an action by attachment in justice’s court against Joseph Bushey; property was attached und.er the writ, but no personal service, and on the 9th day of April, 1877, judgment was rendered therein against the defendant. April 14th, 1877, defendant filed with the justice an affidavit for a special appeal and bond, and a return thereto was made on the 17th. September 17th, 1878, the appeal was by the circuit court dismissed because the entry fee had not béen paid ; and on the next day an execution was issued by the justice upon the judgment rendered by him, and returned November 17th unsatisfied, no goods having been found. September 25, 1878, the case was re-instated in the circuit court, upon condition that appellant should pay $10 costs, waive his special appeal, and proceed to trial on the merits at the then term of court. And December 16th, 1878, this order not having been complied with, was vacated. February 1st, 1879, an alias execution was issued by the justice, returned April 2d, 1879, unsatisfied. The present action was thereupon brought upon the appeal bond, trial liad, judgment for the plaintiff and the cause brought here on writ of error.
The defence relied upon in the court below and in this court is, that the justice did -not acquire jurisdiction of the person of defendant Bushey, the return of the constable being defective. ■ The defendant appeared specially in the justice’s court and made a motion based on such defective return, which was overruled. An amendment of the officer’s return was afterwards, on the adjourned day, in the absence of defendant, and without notice, permitted and made, but this also, it is claimed, even if properly made, was insufficient to give the court jurisdiction.
"Where a constable returns that he has attached goods and •chattels by virtue of a writ of attachment issued out of a justice’s court, and the return is silent as to the place of ■seizure, we must presume that the officer did not violate the provisions of the statute which commands him to take the property of the defendant “ within his county.”
It is only from an inspection of the affidavit for appeal, of defendant Bushey, that we are enabled to ascertain what amendment was permitted by the justice and made by the •constable. The return made by the justice on the appeal shows the amended return only, which on its face, as printed, does not indicate an amendment. The amended return in my opinion was sufficient in substance to give the court jurisdiction, and for the reasons hereinafter given, I do not consider it necessary to pass upon the power of a justice to permit an amendment without notice. Our statute in reference to amendments is very broad and has always been construed liberally in furtherance of the objects thereof, and whether the same rule would apply in justice’s court as in the circuit, requiring notice to be given in a case where the defendant had not been personally served with process and had not appeared, may at least be a matter of doubt, as to require notice would be to deny the power of amendment in all such cases. The defendant’s appearance on the return-day by attorney, for the sole and special purpose of a motion to quash, would not authorize the service of notice upon such attorney thereafter, within the ruling in Watson v. Hinchman 41 Mich. 716. And upon the assumption that the defendant could not be found, then no notice of such proposed amendment could be given. But as already said the necessity for such notice in a justice’s court, in a caselilre the present, we do not pass upon.
Irrespective of what the result might have been in the-Circuit Court upon the special appeal, had it been pressed by the appellant, I think we cannot say, from an inspection of' the files and record of the justice as returned by him to the Circuit Court, that the judgment rendered by him could be considered a nullity for want of jurisdiction, or that the plaintiff therein might not, could he have promptly sued out an execution thereon, have obtained satisfaction thereof in whole or in part. He had, by virtue of his attachment, obtained a lien upon certain personal property of the defendant, out of which he might have realized.
But it is urged in this case, that the motive which influenced the sureties to execute the appeal bond was the fact that this property was in the hands of the officer by virtue of the writ of attachment, and would or should beheld by him to wait an execution. There is no evidence tending to show what became of the property attached. The executions were not delivered to the same constable who-served the writ of attachment. The property attached consisted of a horse, cow, wagons and other personal property..
Where a justice’s court attachment is delivered to a constable the statute commands him to attach so much of defendant’s goods and chattels as will be sufficient to satisfy the-demand, and safely keep the same to satisfy any judgment that may be recovered by the plaintiff therein. 2 Comp. L.. § 5274. In cases commenced by attachment, execution shall,, on application of the person in whose favor the judgment was rendered, be issued forthwith, unless stayed. § 5394.. In suits commenced by attachment, where animals are seized and expense incurred in the keeping thereof, it is made the-duty of the justice, upon the trial of the suit, to examine-witnesses as to such expense, from the time of seizure up to and including the day of trial, and to determine and adjudge the amount thereof, and incorporate the same into the judgment as a part thereof, in case judgment is rendered for the plaintiff, and the docket shall contain an entry of the amount so determined. § 5518. When cattle or live stock are taken on execution, the justice may allow the constable a reasonable compensation for keeping the same. § 5419.
These several provisions clearly indicate that the lien acquired by virtue of a writ of attachment is to remain in force only a reasonable time after the rendition of the judgment. They are to be safely kept to satisfy the judgment, and the plaintiff could not, after recovering a judgment, with the right of issuing execution thereon, permit the property to remain indefinitely upon expense in the officer’s hands under the writ of attachment. The statute farther provides that after an appeal has been taken, on a proper showing thereof being made to the officer holding the execution, he shall forthwith release the property that may have been taken, or the body of the party against whom the writ was issued. § 5440.
If an appeal releases property taken on an execution, why should property held on an attachment not be released ? The object a plaintiff has in attaching property is to secure satisfaction of any judgment he may thereafter recover, and property is taken upon execution for the satisfaction of the judgment. When, however, an appeal is taken, the bond given is presumed to insure satisfaction and there is no longer any object in retaining the property levied upon for such a purpose, and certainly this applies with at least equal force to property held under an attachment.
It is true the statute does not in express terms provide for the release of property held upon attachment as it does when held under execution; but was this necessary? The lien by virtue of an attachment holds only a'h’easonable time after a judgment has been recovered and a right to execution exists, and this the statute permits being done immediately upon the recovery of judgment in such cases. We do not wish to intimate that execution must issue at once on rendition of judgment, or even within the time limited for tbe taking of an appeal, in order to protect the lien, or in cases where the plaintiff as the aggrieved party appeals. But where the defendant appeals, before the execution has been issued and the property attached taken thereon, we cannot suppose that the legislature contemplated that the property' should be retained upon expense during the pendency of the appeal. In my opinion, whether the property is held under the attachment or execution, the appeal, when taken, causes its release, and the plaintiff thereafter looks to the appeal bond for his protection.
Any other rule, it seems to me, would work great in justice, as the owner of the property would not only be deprived of its use during the pendency of the suit, but the expense of keeping it in many cases would exceed the entire value thereof, and thus the judgment remain unsatisfied.
I am also of opinion that it may fairly be inferred from the record in this case that the property levied on was released, during the pendency of the suit in justice’s court. Sec. 5277 provides that the goods and chattels levied upon shall not be removed if a bond is given conditioned that they will be produced to satisfy any execution that may be issued or any judgment recovered by the plaintiff in the attachment. So if any person other than the defendant claims the goods attached, he may execute a bond, conditioned that in a suit to be brought thereon, he will establish ownership therein at the time of the seizure. § 5278. And upon either of such bonds being given the constable shall deliver up the property to the obligor. §5279. And as the bond provided for in Sec. 5278 might be given after the return of the writ, the fact that such a bond had been given would not appear thereby.
As already referred to, the cost of keeping any animals attached may be proven on the trial and allowed, and the docket of tbe justice is*to contain any entry of the amount thereof. § 5518. The docket of the justice, as appears by his return, contains no such entry, although animals were taken by the constable; and as he would have no authority to work them for their keep, even did it appear that he could have done so, we should, I think, assume that the animals taken by the constable were not held by him under the attachment at the time of the rendition of the judgment. If they were not, defendant’s motive in executing the bond could not have been the existence of such property in the constable’s hands under the attachment. If they were in the constable’s hands, and the taking of an appeal and giving a bond thereon operated as a release of the property, of which I have no doubt, then their motive, based upon a retention of the property by the constable, was wrong and could not benefit them.
If the property was in the constable’s hands, and the effect of the appeal was to release it, surely this would be such an injury to the plaintiff as would entitle him to maintain this action. If it was not in the officer’s hands, the delay caused by the appeal may have caused the plaintiff an injury. Had no appeal been taken, a prompt and vigorous prosecution of his remedy by execution might have enabled him to find property to satisfy the judgment, and which a delay might have deprived him of.
But even did it appear from an inspection of the files and record of the justice that the judgment was so far void that it could be attacked collaterally, I am by no means satisfied that the plaintiff could not maintain this action. The defendant therein was not willing to-risk his rights upon the assumption that the judgment was absolutely void and could afford no advantage to the plaintiff. Had he done so the plaintiff might have abandoned his judgment, commenced another action, and collected his claim. The defendant, by taking an appeal, prevents this by agreeing in his bond to prosecute his appeal with all due diligence to a decision in the Circuit Court, and if a judgment should be rendered against him therein, to pay the same, or if the appeal should be discontinued or dismissed, then that the judgment of the justice should be paid. Here was an ’agreement entered into voluntarily. It has not been observed. Why then should it not be enforced according to the letter thereof 1 The defendant has obtained the benefit of delay by this means and injured the plaintiff to a corresponding extent. . The defendant at the time he took this appeal may have had sufficient goods and chattels out of which plaintiff could have collected his claim either in that action or in another which he might have brought. The delay may have cut off this right, or barred his claim under the statute of limitations.
Yiew the case in any way, I am of opinion the defense relied upon cannot be sustained, and that the judgment should be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Gale filed his bill in aid of an execution levied July 9, 1879, on a judgment against Hammond upon certain lands which he claims were conveyed by Hammond to defendant Gould in October, 1868, the deed being recorded on the 25th of October, 1868; and complainant alleges it was made to defraud the creditors. Gale’s cause of action in the suit in which he obtained judgment was a bond dated November 30,1869, given by defendant Hammond to Joseph Gale, who assigned the same to complainant October 3, 1872. This bond was secured by mortgage on the land levied on. The bill claims that the bond included an indebtedness which existed before the deed from Hammond to Mrs. Gould. Fowler is claimed to have no superior equities. • The bond was to secure $1000 in two years from November 30, 1869.
Among other defences it was set out and appeared that in 1876 Gale filed a bill in chancery in aid of a title obtained by statutory foreclosure under this same mortgage, in which he attacked the Gould deed for the same fraud, and in which it was finally decided by this court that no fraud was made out as against complainant. The case is reported as Gale v. Gould 40 Mich. 515.
It was suggested to counsel on the argument that under section 4667 of the Compiled Laws it is provided that when a judgment is recovered for a debt secured by a mortgage of real estate, “ it shall not be lawful for the sheriff or other officer to sell the equity of redemption of the mortgagor, his heirs or assigns, in such estate, by virtue of any execution upon such judgment.” It was claimed, however, that there were matters in the record which possibly wotrld obviate this difficulty.
We do not discover any ground on which to raise any distinction between this and any other cases. The levy is claimed to be on the land mortgaged and the mortgage has always been insisted on as valid and it is sought to be enforced on the ground that so far as complainant is concerned no valid transfer of the land was ever made to MrsGrould. This appears to be a fatal objection to the bill. We do not see how we are at liberty to limit the effect of the statutory prohibition when the mortgage is relied upon, nor do we discover any distinction between cases of fraud and others.
Upon a careful inspection of the record, there seem to be difficulties in reaching the question of fraud, even if it could be considered under the statute. Not only has the controversy been already passed upon and adjudicated,bnt it appears distinctly that the conveyance to Mrs. Gould was recorded a year before complainant’s assignor took his mortgage. It also appeared that he had actual notice of the state of the title, and paid up a mortgage made by Mrs. Gould to ■ one Leonard, and this payment was a part of the consideration of the mortgage now in controversy. While there is reason to believe the Gould transfer was understood by all parties to be merely colorable, Joseph Gale knew that it stood as an absolute title, and did not see fit to protect himself by getting Mrs. Gould’s transfer or concurrence in any proper form. He may have been under some mistake of law, but he is quite as likely to have trusted that all would be made right. There is nothing indicating that any deceit was practiced on him.
There is no good cause for granting relief, and the bill was properly dismissed. The decree must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
This is a suit to. foreclose a mortgage given by Whitney Jones. Louisa S. Jones is made a party defendant, but who she is or how connected with the mortgage or with the equity or redemption the bill does not show. She was therefore not a proper party.
The principal controversy between complainant and Whitney Jones relates to the question whether anything remains unpaid on the mortgage. It was given in 1855 to secure the payment of a promissory note of $5500, and interest at seven per centum. The amount of this note was reduced to $1000 by payments, at which sum it stood in 1860. From that time until 1876 the mortgagee paid annually $100 as interest, and. it was applied as such on the mortgage. He now claims that $30 of this sum should have been applied annually to the principal; and if so applied the mortgage would be, more than paid. But we cannot make this application. The mortgagee had a right, if he extended the payment, to stipulate for ten per cent interest; and whether he stipulated or not, the mortgagor might pay it, and the payment would not be a payment of usury; for nothing is usury in this State that does not exceed that rate. So far, therefore, as the application has been actually made, we cannot disturb it.
But the complainant has obtained a decree in which the interest remaining unpaid is computed at ten per centum. To justify this an endorsement on the note, signed by the mortgagor, was put in evidence, which read as follows: “ I hereby agree to pay ten per cent interest on the above note since the 14th April, 1860, until fully paid. May 12,1860.” But this was a mere personal undertaking; it did not enlarge the mortgage. Moreover it was not set up and relied upon in the bill as a ground for any relief. Tucker v. Alger 30 Mich. 67. The computation should have been restricted to seven per centum.
It is claimed by the mortgagor that he not only paid ten per cent interest yearly, but that he also paid interest upon this interest when payment was not promptly made. If so, he is entitled to have it allowed on the principal, for ten per centum is the statutory maximum of interest that may be taken.
The decree must be reversed with costs, and the cause remanded with directions to enter decree in accordance with these views. The defendant Louisa S. Jones is entitled to a dismissal of the bill in the court below with costs.
The other Justices concurred. | [
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Graves, J.
"Wilson in 1869 recovered a judgment before a justice of the peace against George E. Loomis for $15.30 damages and $1.85 costs. On the 2d of December, 1879, and more than two and a half years later, Wilson proceeded on the basis of this judgment debt to garnish Bartholomew. The latter appeared and disclosed that he had in his barn a mare belonging to the principal defendant and worth not to exceed $40 in his opinion. Certain other proceedings occurred which do not seem important now. The usual summons to show cause was issued and Bartholomew regularly appeared pursuant to it, and issue was joined in accordance with the statute.
In the course of the hearing it appeared conclusively that the mare of Loomis in Bartholomew’s possession was exempt property. But the justice, being of opinion that the right of exemption was repudiated by the law of garnishment, rendered judgment against Bartholomew for $22.46 damages and $5.58 costs. Thereupon Loomis, the principal debtor, proceeding in his own name and apparently in his own, behalf, made affidavit to procure a certiorari from the circuit court, and the writ was issued and return made thereto. The plaintiff in error resisted the case in that court on the ground that it was not competent for Loomis to prosecute the statutory certiorari in his own name and on his own account to review the judgment given against Bartholomew, and that certiorari at common law was wholly inapplicable. The circuit court however continued to entertain the case and finally reversed the judgment of the justice and awarded costs in favor of Loomis against Wilson.
It may be that the proceeding could not be supported as a' statutory certiorari. But we are not bound to consider that question. It cannot be maintained that the legal rights of Loomis were liable to be cut off by the decision of the justice in a case between others and without his having an opportunity to be heard. The circuit courts are empowered to issue the writ of certiorari for the purpose of controlling the proceedings of inferior courts (Const. art. vi, § 8) where that remedy is deemed appropriate, and in a, case having a close analogy and not fairly distinguishable .in principle we sustained the writ as one at common law (Thompson v. School District No. 6 of Crockery 25 Mich. 483); and in the-later case of Qampcm v. Button we considered that it was enough in respect to his interest to entitle one to prosecute the writ, that he had rights subject to be injuriously affected unless he was allowed to move on his own account. 33 Mich. 525.
We think the maintenance of the writ was warranted by principles • well settled in this State. It appears from the return made by the justice, of the evidence and in answer to the fifth allegation of error, that he recognized as proved that the mare was exempt property within the meaning of the statute prescribing what shall be exempt, and that in substance and effect he so found, and that he went on the assumption that there remained only the question of law whether the statutes giving this remedy did not exclude the right. He thought they did. The plaintiff in error declines to defend this view and we think wisely. We entertain no doubt that a debtor’s property which is exempt from execution, is also exempt from garnishee process at the election of the debtor. The provisions of the law concerning garnishment contemplate such immunity (§§ 6455, 6458, 6459) and even go further and allow exemption of a money indebtedness of $25 in certain cases. § 6440.
The policy of exemption is marked down in the Constitution and so far from being blind to it the courts have felt it to be their duty to give it a liberal exposition. The ruling made by the justice raised a question of law capable of revision.
We think no error is shown and the judgment of the circuit court must be affirmed with costs.
The other Justices concurred.
The fifth allegation of error was:
“ 5th. The justice erred in rendering a judgment against said Orange A. Bartholomew, because the evidence in the case did not warrant it, as the undisputed testimony shows that the mare in question in the possession of said garnishee was the property of the defendant George R. Loomis, and was exempt from execution.” | [
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Campbell, J.
Babillion sued Peltier in the circuit court for the county of Macomb, on the common counts, and appended a notice that the plaintiff would give in evidence, under the money counts, a promissory note, a copy of which was appended. This note was in the usual form, for $370 and interest at 8 per cent., dated October 7,1878, and payable one day after date to the “ order of J. V. Mehling estate,” at store 28 and 30, Michigan Grand avenue, Detroit. This was indorsed by Sophia Mehling, sole legatee of John Y. Mehling. It appears that she is also executrix. The circuit court gave judgment on it.
The only question presented by the argument for plaintiff in error, and therefore the only one we need notice, is that this instrument contains no payee, and is not a negotiable promissory note.
Inasmuch as the declaration contains no special count, the negotiable quality of the paper, if valid, does not seem to us important. If not negotiable the assignee can, under our statute, sue in his own name. If negotiable, it is not claimed that Mrs. Mehling, being both executrix and sole legatee, does not hold the title of the estate.
We think that this note was a valid instrument, and payable to the proper representative of the estate. Such was the manifest intent of the parties, and there is no legal reason that we can discover to the contrary. There is no uncertainty about the intent, and there has been no change in the representative.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
Relator asks for an order requiring the respondent Denny Larke, clerk of the county of Presque Isle, to show cause why he should not issue and deliver to relator a certificate of his election as sheriff of said county, it appearing, as claimed, that the returns on file in the clerk’s office show him to have been legally elected, it farther appearing that a certificate has been issued and delivered to another person.
Were it clear that this matter could be disposed of from an inspection of the returns we should be disposed to grant the order. The party who has received the certificate may deny the correctness of the returns, and thus an issue would be raised which would have to be sent down for trial. Or if an opportunity were not given him in the present case to do so, and a certificate were given the relator, still the controversy would not necessarily be ended, and a resort to proceedings in the nature of a quo wcvrranto would inevitably follow. Under such circumstances the only benefit relator would gain by the present proceedings would be a certificate •of election prima facie entitling him to the office: — in other words a shifting of the burthen of proof. It is not advisable to resort to mandamus unless substantial if not final relief can be given, and under all the circumstances, as the issuing of such a writ is discretionary, we think it best not to grant the order.
The other Justices concurred. | [
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Cooley, J.
The plaintiff is mortgagee of chattels, and by reason, as he says, of erroneous information, put his mortgage on record in the wrong office. Eor the failure to place it in the proper office, the mortgage was void as against creditors: Comp. L., § 4706; Fearey v. Cummings, 41 Mich. 376; Cooper v. Brock, 41 Mich. 488. The defendant is sheriff of the county of Montcalm, and as such levied certain attachments upon the mortgaged property on behalf of the creditors of the mortgagor. The mortgagee brought replevin, and in the court below judgment passed against him.
We have looked through the record in vain for any circumstance which can distinguish this case from those above cited. There was evidence that the mortgagee had taken possession of the property before one of the attachments was levied; but this was not a material fact: Fearey v. Cummings, supra. Proof was also offered that the creditors had negotiated for the mortgage, and thus recognized its validity. But an offer to buy up a claim does not estop one from disputing its validity. Parties in danger of falling into litigation often do this, with great propriety and prudence. The plaintiff also offered to show that the demand in one of the attachment cases, which had passed into judgment, was paid before judgment. There was no offer to show fraud or collusion bet-ween the attachment creditor and the debtor; and without this what was proposed would be merely an. attempt to re-try the question involved in the attachment suit. He also sought to show that one of the attachments was levied subject to the mortgage ; but the officer's endorsement of the levy showed the contrary, and it could not be contradicted in this way. The cases of Nall v. Granger, 8 Mich. 450, and Winfield v. Adams, 34 Mich. 437, which are referred to, are different. What was in issue in those cases was the act of the officer publicly performed; but when an officer levies on property, the question whether he levies as upon a complete title or only on some imperfect or encumbered interest, is a matter resting in intent, and respecting which he is under no necessity of making any public statement whatever, or any statement beyond what he enters on his writ. Moreover, if he should first make the levy subject to the mortgage, he would have a right to change it afterwards, and the endorsement on his writ is the evidence of his final action.
The judgment is correct, and must be affirmed, with costs.
The other Justices concurred. | [
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Cooley, J.
The sole question in this case is, whether the persons named executors in an instrument purporting to be the last will and testament of Hiram Arnold, deceased, may ■appeal from the order of the probate court disallowing the same, notwithstanding all persons who would be interested as heirs or distributees in case the decedent had died intestate, and all living persons whom the instrument purports to make beneficiaries, unite in a settlement of the estate .and oppose the •appeal. The circuit court held that they could not, and dismissed the appeal which, in due form, they had attempted to take.
The circuit judge was quite right in saying that litigation •over estates is a great and growing evil, and that parties should be encouraged to avoid it by voluntary arrangements, instead of being prevented. But it becomes important in any case to make sure that all persons who are or may be interested join in the settlement, and also, in the case of wills, that no declared policy of the testator in putting his property or any portion of it beyond the control of those concerned in ■the settlement, is defeated thereby.
A reference to the will, a copy of which is given in the margin, will make it clear that purposes are expressed therein which were to be accomplished irrespective of the desires of the heirs, distributees or beneficiaries. One of these was the erection of a monument to the decedent; and it is a noticeable fact which may assist in the explanation of some other provisions of the will, that the executors, and not the family, were to decide upon this, and to determine upon the inscriptions and the headstones. In respect to this monument the executors alone can represent the testator’s will,. and no settlement can deprive .them of their discretionary authority. The decedent trusted to them, and to no others.
But it is equally manifest that the decedent had beneficiaries in view who could not possibly be represented in any settlement. The gift to Escalala N. Green is of a life estate only, and on her decease her share is to pass to her children and grandchildren, share and share alike. We do not understand that she then had any grandchildren, and the will must have intended the children and grandchildren who should be in being at tbe death of Mrs. Green. The gift to Eugene B. Arnold is also for life only, and after his death his heirs become the beneficiaries. We do not know why these gifts to the daughter and son were thus restricted, but it is plain that the decedent intended that the descendants of his children should succeed to the property beyond a peradventure, and that it should not be in the power of the children themselves to prevent it. We need not inquire into the reasons ; being sufficient to the decedent they are for legal purposes sufficient to all others.
To guard against his purposes being defeated the persons named as executors were made trustees with very extensive powers. They were given full discretion to sell real and personal estate without taking the advice of the probate court, they were to keep all funds invested, and upon them he relied to save the contingent interests for those who were in mind as future beneficiaries. When the living children and grandchildren undertake by agreement between themselves to appropriate the whole property, they attempt to make a new will for the testator ; to take to themselves the fee when he gave life estates only; to relieve themselves from trusts which he deemed essential; to cut off after-born children who were plainly the special objects of his bounty. But it is plain that this cannot be done without an equal disregard of the will of and the law. The trustees are the representatives of the dead donor in his wishes, and they represent also the future beneficiaries, who, being as yet unknown, can have no other representatives or protectors.
The will was assailed on the ground of mental incompetency. Had the issue been fully and fairly tried in the probate court and decided on the merits, and had the appeal been taken on technical grounds, we should agree that the relators ought not to press it. It would be inexcusable in them to make costs for the estate which they at the outset must know would be incurred in a vain attempt to support a nullity. But there is every reason to believe from this record that the case has not been fully heard, and that the decision went as it did because of the compromise. Under such cir cumstances the executors have an undoubted right to appeal, for they have substantial interests to protect. Whether they might appeal for the mere purpose of protecting the decedent’s reputation, if they believed his competency unjustly assailed, we need not discuss, for in this case such a question does not and cannot arise.
It is urged that the mamdamus which is applied for is not a proper remedy. But the purpose is merely to set the court in motion that the appeal may be heard (Comstock v. Wayne Circuit Judge 30 Mich. 98); and it must issue as prayed.
The other Justices concurred.
The Last Will and Testament of Hiram Arnold, of Scio, in Washtenaw County, Michigan.
I, Hiram Arnold, being of full age and sound mind, do hereby make and execute this my last will and testament, as follows:
First — I hereby appoint Edward Treadwell and Noah W. Cheever the-executors of this will, with full power to sell and convey the real estate and personal property belonging to my estate, without asking or obtaining license from any court for that purpose.
Second — I hereby make the following devises and bequests to thedevisees aud legatees hereinafter named, in lieu of and in full payment and satisfaction of all the Claims, right, title and interest of such devisees, and legatees in and to my estate.
Third — I hereby direct my said executors to erect on my lot in the-cemetery at Ann Arbor a family monument of Scotch granite, with suitable inscriptions thereon, and also such headstones as they may deem appropriate; such family monument not to cost less'than one thousand, dollars.
Fourth — I give and bequeath to my granddaughter, Luella Beaman, the sum of one thousand dollars.
Fifth — I give, devise and bequeath to my grandson, Clay Green, and. his heirs and assigns forever, all of the northwest quarter of section twenty-seven in township two south, in range six east, in Washtenaw county, Michigan, that lies south of the Huron river, and belongs to me.
Sixth — l give and bequeath to Sarah Bagley the sum of two thousand dollars, and to Josephine Bagley the sum of one thousand dollars, and toGeorgiana Bagley the sum of one thousand dollars.
Seventh — After the payment of my debts, the expenses of the settlement and administration of my estate, and the above legacies, I give, devise and bequeath to my daughter, Éscalala N. Green, the use, interest and income of my entire estate, both real aud personal, during her life, except as hereinafter provided. When my granddaughter, Luella Beaman, shall become of the age of thirty-five years, then I give, devise and bequeath toller, and her heirs and assigns forever, one-fourth of my estate, both real and personal. And when my grandson, Clay Green, shall become of the age of thirty years, then I give, devise and bequeath to him, and his heirs, and assigns forever, one-fourth of my estate, both real and personal. And after the death of my said daughter, Escalala N. Green, I give, devise aud bequeath to her children and grandchildren all my estate, both real and personal, the use of which is above bequeathed to her, the same” to be divided equally among them, share and share alike.
■ And I hereby make the above devises and bequests to Escalala N. Green and Clay Green and Luella Beaman, and their heirs and assigns, expressly subject to the payment to my son, Eugene B. Arnold, of a sum not less- than four nor more than six hundred dollars per year during his life, as my executors shall deem best; and I hereby direct my said executors to pay to my son, Eugene B. Arnold, during his life, the said sum not exceeding six hundred dollars per year, out of the income of my estate.
Eighth — I hereby will and direct that my daughter, Escalala N. Green, shall have the use, possession and control of my homestead farm, situated in the lownship of Scio, in Washtenaw county, Michigan, consisting of about three hundred acres, during her life, subject to the above devises and bequests.
Ninth — I hereby will and direct that my said executors and their successors shall keep all my estate, except said homestead farm, invested in good real estate mortgages, or other safe and reliable interest-bearing securities, and pay the interest and income from the same to my legatees as above provided, at least once each year, if possible, after deducting their reasonable charges and expenses in managing said estate, until said estate shall become absolutely vested in said legatees by the terms of this will.
Tenth — I hereby revoke all former wills by me made.
In witness whereof, I have hereunto set my hand and seal this 19th day of August, A. D. 1879.
Hiram Arnold, [seal.]
This instrument, which I hereby declare to be a codicil to my will, executed by me on the 19th day of August, A. D. 1879, in presence of John Henley and Norman Dwight, as witnesses.
I make the following changes and additions to said will, viz.: I give and devise the following described land, being a part of my homestead: commencing at the southwest corner of the northwest quarter of section fourteen, town two south, range five east; thence east one hundred and twenty-one rods, to the east stone wall or fence; thence north along said stone wall to the Arnold road, so called; thence east along said road^toits intersection with Delhi road; thence north along Delhi road to the north line of said section fourteen; thence west on said north section line to the northwest corner of said section fourteen; thence south along the Wing road to the place of beginning, to my son Eugene B. Arnold, during his ■life, and after his death to his heirs.
I hereby revoke and declare null and void the bequest in said will to my son, Eugene B. Arnold, of a sum not less than four nor more than six hundred dollars per year, contained in section “seventh” of said will.
I hereby give and bequeath to my son, Eugene E. Arnold, five hundred dollars, to be invested in a team and farming implements.
In witness whereof, I have hereunto set my hand and seal this 24th day of September, A. D. 1880.
H. Arnold, [seal.] | [
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] |
Cooley, J.
Newsom sued Cleveland to recover for an injury received by plaintiff in being run over by a liorse of defendant, driven by a boy, who, it was alleged, was at the time in defendant’s employ. The evidence tended to show that the plaintiff was walking along in the public highway, when the boy drove up behind him in a sleigh, and called out to another boy, “ Shall I run over him ?” or perhaps, as one witness says, “ Will I run over him ?” and before plaintiff could get out of the way, he was struck by one of the thills to the sleigh and injured. Plaintiff testified that he had not heard the vehicle coming until the boy called out. After the plaintiff was struck, the boy stopped the horse and came back and said he did not mean to do it. Proof of this last fact was objected to, but received. The evidence that the boy was in the employment of the defendant at the time was from witnesses who testified that he was on an errand to a cooper shop -to get butter tubs for defendant, but whether he was on the direct route to or from the shop was not shown.
1. There was no error in receiving in evidence the statement of the boy that he did not mean to run over the plaintiff. It was made immediately after the collision, and as nearly as possible at the same time. It was as much a part of the res gestae as would have been an exclamation at the very instant the plaintiff was struck. Hyatt v. Adams 16 Mich. 180; People v. Pitcher 15 Mich. 397; Lambert v. People 29 Mich. 71.
2. The evidence that the boy was acting in his employment at the time was ample. It is suggested that he might have been driving about for his own pleasure, away from the road .to the cooper’s shop, but the court or the jury could not assume this without evidence. The proofs showed an employment and an act done or being done in the course of the employment; and if the defense proposed to raise any question of his having departed from the employment for his own pleasure or on his own business, it was necessary that they take the burden of showing the fact.
3. The defense insisted that the evidence showed that the injury was purposely inflicted; and the defendant himself was examined as a witness to show that he took pains to give the boy such directions as if obeyed would have precluded any such occurrence. The defense then requested the court to charge that the liability of the master does not ensue when the servant has intentionally or recklessly stepped aside from his employment to commit a tort, which the master neither directed in fact, nor could be supposed, from the nature of the employment, to have authorized or expected the servant to * do. This instruction the judge refused to give, but instructed the jury instead that if the boy “ drove in a careless and reckless manner, he would be acting within the scope of his master’s employment; but that if he wantonly, wilfully and intentionally run over the plaintiff, he would not be acting within the scope of his master’s authority. But if he carelessly, unintentionally and accidentally run over the plaintiff, then the plaintiff should recover.”
This instruction was all the defendant could reasonably ask. It stated the law correctly and fairly. If it was a case of intentional injury, defendant was not responsible. If it was a case of negligent disregard of the master’s instructions whereby the injury occurred, the defendant was responsible. Recklessness is only a high degree of negligence, and the degree has nothing to do with the master’s responsibility.
4. The defense requested instructions that defendant was not liable if the plaintiff was guilty of any degree of contributory negligence. The judge gave instructions somewhat different from those requested, but we do not think the cáse called for them. There was no evidence of contributory negligence. The plaintiff was walking in the public highway ; and unless this of itself was negligence, his right of« action was undoubted. It is true the highway was a city street; but it was not shown that it was commonly so occupied with teams as to make foot travel imprudent. We cannot take judicial notice how much a particular city street is used. Many public ways in the country are as much used as some city streets.
We find no error in the record and the judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
A wire rope being stretched across an expansion of the river Marquette at Ludington for ferrying purposes and connected on shore with a fixed windlass to elevate it for use and drop it in the water to avoid vessels, the defendant in the early evening of October 17, 1878, ran his tug against it. At the same time the decedent was in temporary charge of the ferry and was at the windlass for the purpose of dropping the rope out of the tug’s way; he having repaired to the spot therefore in great haste on learning that the vessel was moving towards the rope and was near to it. The rope was still up, but decedent was in act of lowering it as the tug struck. The violent strain whirled the windlass crank with great suddenness and force and caused it to strike the plaintiff’s husband on the head, killing him instantly.
The plaintiff brought this action under a statute of 1848 (Comp. L. §§ 6724, 6725), as amended in 1873 by Act No. 94, to recover such damages as should be “ fair and just, with reference to the pecuniary injury resulting from such death, to those persons * * * entitled to such damages when recovered.”
The circuit judge took the evidence from the jury, and in substance and effect directed a verdict for the defendant. In so proceeding he seems to have considered that, whatever view the jury might take of the defendant’s conduct, the showing was conclusive that the catastrophe was owing in part at least to the want of due care on the part of the decedent.
The plaintiff now questions the ruling on a bill of exceptions. The defendant’s counsel not only support the opinion of the circuit judge, but urge independent objections against the action. Three points may be first noticed. It is objected that the suit is for a maritime tort where the remedy is by statute, and that the jurisdiction rests in the courts of tho United States and cannot be exercised by the state tribunals. The pointis not well taken. Rev. Stat. U. S. § 563, subd. S. The common law gives the right of a common-law remedy to redress the grievance which is made actionable by the state statute, and this brings the case within the saving provision of Congress. Steamboat Co. v. Chase 16 Wall. 522; Leon v. Galceran 11 Wall. 188; Brown v. Gilmore (Penn. St.). See also Brig City of Erie v. Canfield 27 Mich. 479 ; McDonald v. Mallory 77 N. Y. 546; Schoonmaker v. Gilmore 102 U. S. 118, and Brown v. Davidson 102 U. S. 119.
It is next objected that decedent’s death came about by his acting as a ferryman, and that he was so acting under one Christian, whose authority was under a license granted to his lessor by the board of supervisors of Mason county, who at the time of the license had no authority, because the control of the ferry had prior thereto been given by the Legislature to the city of Ludington in the grant of city government in 1873. The record fails to sustain' the objection in the matter of fact.
The trial was in February, 1880, and the proof was positive that the ferry had been then established- seventeen years at least, and the license must therefore have antedated, so far as appears, the charter of the city more than ten years. The Legislature had no power, and seems not to have assumed any, to abrogate any existing license. At the time of the occurrence the ferry had been held and occupied under color of a grant from competent authority during the long period mentioned, without any question being raised as to the existence and regularity of'the franchise. The public authorities and the public generally had acquiesced. No one suggested any defects. It was not doubted but that the grant was legal, and it will not be contended by any one that mere matter of forfeiture could be investigated in this action. A direct proceeding would be indispensable. Harrell v. Ellsworth 17 Ala. 576; New Albany, etc., R. Co. v. Huff 19 Ind. 315; Mackall v. Chesapeake, etc., Canal Co. 94 U. S. 308; Thompson v. R. R. Co. 3 Sandf. Ch. 625. The franchise is property, and it possesses the valuable incidents of other species of property (Conway v. Taylor's Ex'r 1 Black 603 ; Lippencott v. Allander 27 Iowa 460) and subject to that power of control by the government which results from sovereign duty in reference to matters of á public nature, and subject to such conditions as are lawfully imposed, it may be passed from the original grantee to others. Lippencott v. Allander supra; Bowman's Devisees and Burnley v. Wathen 2 McLean 376 ; Peter v. Kendal 6 B. & C. 703 ; Felton v. Deall 22 Vt. 170 ; Ladd v. Chotard 1 Minor (Ala.) 366 ; Biggs v. Ferrell 12 Iredell 1; Lewis v. Intendant and Town Council of Gainesville 7 Ala. 85; Benson v. Mayor, etc. of N. Y. 10 Barb. 223; Willoughby v. Horridge 12 C. B. 742: 16 E. L. & E. 437 ; Pim v. Curell 6 M. & W. 234; Bridgland v. Shapter 5 M. & W. 375.
There is no suggestion of the existence of anything to hinder a transfer by the first proprietor of this ferry, nor prevent subsequent pi’oprietors from leasing it, and as before stated, the public authorities have manifested no disapproval of the changes which seem to have taken place. So far as appears, the right was in being and in the lawful enjoyment of the decedent’s employer when the injury was done.
But were the facts sufficient to raise a question against the regularity of the steps taken to confer the franchise, it cannot be taken for granted that this defendant would be entitled to make use of the circumstance as matter of defense against the present cause of action. The attempt would encounter strong objections. Peter v. Kendal supra ; Conner v. Paxson 1 Blackf. 168. No decision of the question, however, is now needful.
That the defendant was guilty of negligence seems not to have been questioned. The evidence tended to show that he knew very well the character of the ferry and its position, and that having that knowledge he moved the tug after dark directly across the ferry track without previous warning by light or whistle. True, there was evidence to the effect that at least one former ferryman had always kept the rope down at night, unless he indicated by his lantern to tugs and other vessels that it was up; so that those directing craft might understand from the absence of such light that the rope was down, and no one claimed that any ferry light was shown on the occasion in question.
The fact remains, however, that under positive provisions it was the absolute duty of defendant to make a seasonable display of certain lights, and a neglect of this dirty cannot be answered by saying that he relied on the continuance of a former voluntary practice by some ferrymen to show a light whenever the rope was up, and under which practice he was accustomed to disregard his duty and trust altogether to the spontaneous precaution of the ferrymen. How far his reliance on the practice mentioned, if he did rely upon it, ought to absolve him from the severe moral blame which attaches to reckless, wanton or cruel inattention to duty, it is not worth while to speculate about. The law made it incumbent on him, and without any condition, to exhibit lights, and it gave him no dispensing power. Had this been done, the decedent, as the jury may be led to find on the evidence, would have had such notice of the position and approach of the tug as would have enabled him without haste and -without injury to drop the rope. Of course the connection of the defendant’s negligence with what happened to decedent would be for the jury. Willy v. Mulledy 78 N. Y. 310.
Upon the other branch of the case but little need be said. It was part of the plaintiff’s case to satisfy the jury that decedent, under the circumstances, was in the exercise of due care and was not, consequently, in part the producer of what happened. Such is the established rule in this State. Drew v. Steamboat Chesapeake 2 Doug. (Mich.) 33; Lake Shore etc. R. R. Co. v. Miller 25 Mich. 274; Cooley on Torts, 673 But it was not required that this should be made out by direct evidence. If the occurrence itself and the surrounding circumstances, after due allowance for conflicting con. siderations, were capable of breeding an inference of it, and a jury might draw it in the proper exercise of their function, it was sufficient. Bridges v. Directors etc., of N. London R'y Co. L. R. 7 H. L. 213: 9 Eng. 165 ; Cordell v. N. Y. C. & H. R. R. R. Co. 75 N. Y. 330. In this aspect of the case the circumstances were not of that certain and decisive character, which, without discussion, would at once conduct many different minds to the same conclusion.
It is impossible to say what view under proper instructions the jury would have taken, and the controversy appears to be of that class where investigation falls under the province of the usual triers of ambiguous facts in actions at common law.
The author referred to on the law of Torts observes: “ If the case is such that reasonable men, unaffected by bias or prejudice, would be agreed concerning the presence or absence of due care, the judge would be quite justified in saying that the'law deduced the conclusion accordingly. If the facts are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the judge should not be compelled to submit the question to the jury as one in dispute. On the contrary he should say to them. ‘In the judgment of the law this conduct was negligent,’ or, as the case might be, ‘ There is nothing in the evidence here which tends to show a want of due care.’ In either case he draws the conclusion of negligence or the want of it as one of law. * * But in the great majority of cases the question of negligence on any given state of facts must be one of fact. And in no case where the facts are in dispute can the judge take the case from the jury and decide against negligence, as matter of law, unless there is a want of evidence fairly tending to establish the negligence which is counted on.” Cooley on Torts, 670. And “where the essential fact in a case is whether contributory negligence did or did not exist, and this depends upon the credibility of witnesses, or inferences from facts and circumstances about which honest, intelligent and impartial men might differ, such a case should be submitted to the jury.” Swoboda v. Ward 40 Mich. 420 ; and see Bridges v. Directors, etc., of N. L. R'y Co. supra; Robson v. N. E. R'y Co. 2 Q. B. Div. 85: 19 Eng. 228; Directors, etc., Dublin, Wicklow & Wexford R'y Co. v. Slattery 3 Appeal Cases, H. of L. 1155 : 24 Eng. 713; Tarner v. Walker L. R. 2 Q. B. 301; Lambert v. Staten Island R. R. Co. 78 N. Y. 104; The Pennsylvania 19 Wall. 125; The Wanata 95 U. S. 600 ; Stackus v. N. Y. C. & H. R. R. R. Co. 79 N. Y. 464.
We think the jury should have been charged with the facts. It is not expedient, and indeed could not be safe, to anticipate the showing to be made hereafter, and propose in advance a specific rule for the jury on this question of contributory negligence. In all these cases, the instructions, to be exempt from all tendency to confuse or mislead, and at the same time to afford that judicial assistance which the trial judge in contemplation of law ought to give, should not consist of a string of abstractions or vague generalities, but be framed with careful reference to the exact state of facts adduced, and it is not unreasonable to suppose that another trial of this action may show such deviations or differences from the present record, though actually very slight, as would call for modified advice and directions to the jury.
On the same ground of prudence, it is unadvisable to discuss the evidence in the present record bearing on the question of contributory negligence. It might be made use of against the duty of the next jury.
The judgment must be reversed with costs, and a new trial granted.
The other Justices concurred. | [
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Cooley, J.
In December, 1877, Nathan executed and delivered to Hodman as trustee a general assignment in trust for his creditors. The property assigned consisted of a stock of merchandise, and Hodman proceeded to dispose of it in the store where it was when the assignment was made, retaining Nathan as his clerk. In August, 1878, Hodman undertook to discharge Nathan from his service, whereupon the latter assumed the right to control, and declared the assignment at an end. As Nathan then had physical possession of the goods, Hodman replevied them, and they were appraised at $2824.13.
On the trial of the replevin suit, the questions litigated ■appear to have been, whether Hodman as assignee had honestly and fully discharged his duty as trustee under the assignment, or whether he had been negligent and losses had been suffered by the trust fund in consequence. The inquiry thus assumed as wide a range as it would have done had the case been a suit in equity for an accounting. There was no showing that all the debts had been paid. The circuit judge in charging the jury instructed them in substance that the assignment made the assignee the general owner of the goods until the time had arrived when he ought to account, but that if they should find that the debts, legal charges and disbursements had been paid, and that there still remained in the assignee’s hands moneys and property derived from the assignment, they should then find that the assignor had a special interest in the property to the amount so found, with interest from the time when the accounting should have taken place.
This instruction seems to have been given on the supposition that the case was within Comp. L. 1871, § 6754, which provides that “ when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages, in all cases arising under this chapter; and the finding of the jury, or court, as t^e case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties.”
It was a mistake to suppose this statute had any application to the case. The assignor had no lien on the property assigned, and neither did he have any special property therein. The assignee was general owner until the trust had been fully performed. When the trust was discharged the assignor would become entitled to have any surplus restored to him, not because of any special property, but because the resulting trust then restored to him his former rights as general owner. But in a suit at law questions of negligence in the assignee and of consequent loss could not be gone into with a view to punish the assignee therefor by charging losses upon him: an accounting in respect to a trust which can present such questions, can only be had in a court of equity.
But the jury rendered a verdict which was not only not warranted by the charge but was inconsistent with itself. The verdict was that Bodman was general owner of the goods, but that Nathan had a special property therein to the amount of one thousand dollars. The court accepted this verdict, and gave judgment that Nathan recover the sum named. Of course if Bodman was general owner, he was such by virtue of the assignment, and because the trust under it was not yet discharged. Nathan under such circumstances could have only a wholly contingent and uncertain equitable right; a right to have a surplus returned to him if one remained after the debts and all expenses of the trust had been paid: he could have no present legal right whatever. A finding, therefore, that Bodman was general owner would be inconsistent with any right of Nathan to recover anything, and a finding that Nathan was entitled to a certain sum would be equally inconsistent with the supposed continuance of Bod- man’s general ownership. Indeed we cannot understand this verdict unless we suppose the jury understood that if the assignee had in his hands property more than sufficient for the payment of the debts and charges, the assignor was entitled to a judgment for the surplus. But if he could be so entitled at any time before the trust was performed, he would be entitled the moment the trust was created: and we need only suggest this to show how erroneous is any such supposition.
The plaintiff claims judgment in his favor on the verdict; and if the finding of a general property in him stood alone, he would be entitled to it. But the verdict also finds that the defendant did not unlawfully detain the property; and in this contradictory finding one party is no more entitled to demand judgment than the other.
The judgment which was rendered in the circuit court must therefore be reversed with costs and a new trial awarded.
The other Justices concurred. | [
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'Cooley, J.
The plaintiff sues the railroad company to recover compensation for an injury suffered by her in consequence of slipping and falling upon ice which had formed on a sidewalk in front of premises occupied by defendant in the city of Monroe, and which the defendant had failed to remove as required by law. It is not claimed that any such action would lie at the common law, and the right of recovery is supposed to arise from certain state and municipal legislation.
The state legislation in question is the general act for the incorporation of cities, passed in 1873, under which the city of Monroe is no w organized. Chapter XXIII of this act relates to the sidewalks. Section one gives the city council control of all sidewalks, with power to construct and maintain the same and charge the expense thereof upon the lots and premises adjacent to and abutting upon such walks. Section two empowers the council to require the owners and occupants of adjacent lots to construct and maintain sidewalks, and section three is as follows: “ The council shall also have power to cause and require the owners and occupants of any lot or premises to remove all snow and ice from the sidewalks in front of or adjacent to such lot and premises, and to keep the same free from obstructions, encroachments, incumbrances, filth, and other nuisances.”
Section four provides that if any owner or occupant shall fail to perform any duty required by the council in respect to sidewalks, the council may cause the same, to be performed, and levy a special assessment to meet the expense on the lot or premises adjacent to and abutting on the sidewalk.
Section six is as follows: “ If any owner, occupant, or person in charge of any lot or premises shall neglect to repair any sidewalk in front of or adjacent to such premises, or to remove any snow or ice therefrom, or to keep the same free from obstructions and incumbrances, in accordance with the requirements of the ordinances and regulations of the council, he shall be liable to the city for the amount of all damages which shall be recovered against the city for any accident or injury occurring by reason of such neglect.” General Laws 1873, pp. 244, 325, 326.
Acting under the authority conferred by this act, the city council adopted an ordinance whereby it was provided that the owner or occupant of any house or building, or person entitled to the possession of any vacant lot, or person m charge of any church or other public building, or any street, alley or public space, shall not permit the sidewalk and gutter adjoining the same to be obstructed by snow, ice, filth, dirt or other incumbrance, and where ice is formed on any sidewalk and gutter, such owners, occupants, or persons having charge, or entitled to possession of property adjoining, as above provided, shall within twenty-four hours after the same has formed remove the same or cause sand, sawdust or ashes to be strewn thereon.
The defendant, it is alleged, failed to remove within twenty-four hours as required by this ordinance, the ice which had formed on the sidewalk in front of its premises, and the plaintiff sustained a severe injury by slipping and falling thereon.
It is said on behalf of the plaintiff that the obligation to-keep the sidewalks free from snow and ice is imposed as a duty to all persons who may have occasion to use the walks in passing and repassing, and that the neglect to do so, in consequence of which any one lawfully using the walk is injured, is a neglect of duty to him, and entitles him on well-recognized principles to maintain an action. Couch v. Steel 3 El. & Bl. 402; Aldrich v. Howard 7 R. I. 214.
To maintain this proposition it is necessary to make it appear that the duty imposed was a duty to individuals rather than a duty to the whole public of the city ; for if it was only a public duty it cannot be pretended that a private action can be maintained for a breach thereof. A breach of public duty must be punished in some form of public prose-"' cution, and not by way of individual recovery of damages. Nevertheless the burden that individuals are required to bear for the public protection or benefit may in part be imposed for the protection or benefit of some particular individual or class of individuals also, and then there may be an individual right of action as well as a public prosecution if a breach of the duty causes individual injury. Atkinson v. Water Works Co. L. R. 6 Exch. 404.
The nature of the duty and the benefits to be accomplished through its performance must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit. In this case the duty was to keep the sidewalks free from obstructions. It will not be claimed that this was not a duty to the whole public of the city, and the disputed question is whether it is also a duty to each individual making use of the walks.
An obstruction by snow or ice may make the use of a walk dangerous, or may wholly preclude its use for the purpose for which walks are constructed. If the duty to keep the walk free from obstructions is a duty to individual travelers desiring to use it, it is as much broken when the walk is wholly obstructed as when it is capable of use but is dangerous, and an action will as much lie by one who is compelled to go around an obstruction, as by one who slips and falls in a dangerous place. Moreover as the lot owner is required to keep the walk free from all nuisances, an individual traveler who can maintain the proposition that this is a duty to him must be entitled to bring suit whenever the existence,of a nuisance diminishes either the comfort or the safety of the use of the walk by him. This view of the obligation of the lot owner would add greatly to his common-law liabilities, and it is not easy to draw the line which should definitely limit and confine his liabilities.
But if we look a little further into the statute under which the city is incorporated, we shall see that all its provisions respecting sidewalks, so far as they impose duties upon the owners of adjoining or abutting lots, have one common object, namely, to provide suitable and safe passageways for foot passengers by the side of the public streets, and to keep these in condition for safe use. The expense of such ways is imposed on the owners of adjacent lots, and these owners must keep them free from encroachments. Will it be claimed that if the city council shall require a lot owner to construct a sidewalk in front of his premises, and he shall fail to obey the requirement, every person who should come upon the street desiring to pass on foot where the walk should be, and who shall be precluded from doing so by the walk not being constructed, may bring suit against the lot owner for the neglect to build it as a neglect of duty to the traveler himself ? He is damnified in that case as clearly as when he falls upon a dangerous walk and is hurt; though the damage may perhaps be insignificant.
But it is clear, we think, that the duty to build the walk is .only a public duty, and the duty to keep it in condition for use is also a public duty. Exactly what force is to be given to the provision of statute that the lot owner shall be liable to the city for all damages which the city may be compelled to pay for his default, we need not consider in this suit. It is enough to say here that an action grounded on that particular provision of the statute could only arise after the city had been rendered liable in a.suit against it.
If the statute contemplated public duties only, the city ordinance could not go further and give individual rights of action. But neither, we think, has it attempted to do so.
The judgment of the circuit court must stand affirmed with costs^,
The other Justices concurred. | [
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] |
Grates, J.
Tliis case stands on the same ground as Demill <o. Moffat, supra, and the same order will be entered in it.
The other Justices concurred. | [
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Graves, J.
Mrs. Brigham brought assumpsit in the Superior Court of the city of Detroit and was allowed to recover, and the defendant Gott now asks a review on writ of error and bill of exceptions. A great many questions are propounded in the record, but the subject of contention which occupies the foreground overshadows the others and must be first considered. If error is there found the other points will not be examined. If any of them again arise it will be under circumstances in all probability necessitating a mode of treatment not appropriate now. Moreover it is not to be assumed that they will recur at all.
Tlie trial was on the 26th of February, 1880, and - on the appearance of the proper number of persons to form a jury the plaintiff in error challenged the array. The challenge was in writing, and it specified four distinct grounds as follows:
1. That on the 2d day of December, 1879, a list of three hundred persons to serve as jurors in said court was filed in the office of the clerk of this court in pursuance of sec. 19 of the act establishing this court as amended, and that the judge of this court did not attend and was not present with the clerk when the ballots containing the names of the persons so selected to serve as jurors were deposited in the jury-box, or when those that remained of the preceding list (if any) or any of them, were taken out and destroyed.
2. That the judge of this court did not direct or determine the number of jurors to be drawn to serve as jurors at this term of court, but that twenty-four names were drawn with■out any direction or determination by the judge of this court, as to the number he deemed necessary, and the judge was not present when said jurors were drawn out of the box.
3. That said jurors for this term of court were drawn from the jury-box by "Walter H. Coots, the sheriff of the county, and not by the clerk of this court, and that the minute of such drawing was kept by the clerk and not by the judge or sheriff, or other attending officer.
4. That the affidavit filed with the said list of 300 jurors does not show the proceedings taken to select said list in detail, or what was actually done in the premises, but only alleges that said list was selected in accordance with the statute in such cases made and provided, as the affiant verily believes, and said list and affidavit on file are referred to and made a part hereof.” See Pub. Act 97 of 1879; Detroit Charter 1857 ; Laws 1857, pp. 115, 116, 117.
There is some confusion in the record as to exactly what was subsequently done in this proceeding. An entry appears in one place to the effect that to the first and fourth grounds a demurrer was interposed in which the defendant joined, and that issue on the fact was taken on the second and third grounds.,
In another part of the record a pleading is found in which the plaintiff demurs to the first ground and tenders issue of fact on the other three, and this is succeeded by a piece of pleading by which defendant joins in the demurrer to the first ground and accepts the tender of issue of fact on the others.
It seems that in a preceding case between other parties, and before another judge, a similar question arose, and that the judge ruled against the challenge, and that as part of the proceeding in that case the judge found the facts on the second and third grounds. In the present case the judge ©xplaine'd that he should follow the other, and it was stipulated that the evidence, rulings and proceedings in that case on the same question, should be adopted in this. According to this arrangement the parties have introduced the finding made in the other case on the second and third grounds as findings on the same ground in this. There is no specific finding on the fourth ground. But it sufficiently appears that the challenge was overruled. The first ground was disposed of on demurrer, there being no issue of fact raised on it.
The second and third grounds were decided on the construction the judge placed on the facts, and the fourth ground was decided as though there had been a demurrer. The issue of fact on this ground was really immaterial. The objection was that the affidavit which was made a part of the challenge was not in compliance with the statute. Whether it was or not was apparent on its face and there was no fact in dispute. At the common law the whole execution of the jury process was committed to the sheriff and there could be no miscarriage at this stage except by his indifference or default. A personal charge against him was therefore the ancient ground of challenge, and if the challenge was successful the result was that another officer was charged with the duty of summoning a new jury.
By the legislative provisions applicable to the court below the sheriff is superseded in the old functions, and different machinery is provided for the due array of juries, and for the purpose of challenge it is proper to consider as within its influence all the agencies which are required to take part. The fundamental idea is to secure a legal tribunal, and the change made in the way of evolving it out of the constituents existing in society has not foreclosed the right of parties to insist upon its being constituted in substantial conformity with the laws as established. They may not see fit to complain even in the case of gross errors, and if they fail to object seasonably and regularly, they must be deemed to have waived the defects. But if they object in proper time and in due form, and show that a substantial deviation from the law has taken place; that positive provisions enacted to secure and guard the right of trial by jury and maintain the purity of that mode of trial, have been violated or disregarded, there is no warrant in our jurisprudence for treating the deviations as harmless irregularities.
A party so objecting and so substantiating his objection stands on valuable legal rights and is entitled to have the array quashed. The law has prescribed its own methods for the constitution of the tribunal, and has carefully defined what means shall be provided to negative the existence of any error in relation thereto prejudical to the parties; and it is not fair reasoning to say that such methods may be set aside and that a party reasonably and regularly objecting may be silenced by an answer that it appears from extrinsic sources that he was not injured. The effect of such a doctrine would be to license courts to suspend the laws, if in their opinion, no one would be injured thereby as matter of fact. It is needless to dwell long upon the challenge. The second ground was properly overruled. Twenty-four jurors were drawn. An order would have been necessary for a greater number, but no order whatever was made. In the absence of any new direction it was proper to assume as the facts were that the judge deemed twenty-four to be necessary.
The affidavit mentioned in the fourth ground was not defective for want of detail. The statute does not require it to specify the various proceedings. In so far, this ground of challenge was not valid.
But the next point was well taken. The affiant merely swore to his belief. The statute takes notice that he must have actual knowledge of the facts, and it requires a positive oath. A statement on belief can afford no such security for exact and honest compliance with the statute as the Legislature intended.
As to the third ground. The finding of facts states that on the occasion of the drawing, the clerk and sheriff only attended; that the sheriff shook the box and drew out the names of the same twenty-four persons who were summoned; that as he drew out each slip he opened it and read the name on it, then put it down near the desk where he could read it, and the clerk entered the name on the minute of the drawing ; that the names on the slips and the minute were compared by the sheriff’s reading off the names from the slips, and the clerk’s cheeking them on the minute; that the minute was then signed by the clerk and sheriff; and that this manner of drawing the jury was in accordance with the practice which has always prevailed in the Recorder’s Court and in the Superior Court.
The Legislature have seen fit to provide expressly that the clerk, and no one else, shall handle the box and draw therefrom in the presence of the officer or officers attending, and that one of the attending officers shall keep a minute of such drawing. The law has apportioned the duties with extreme care. The list and box are under the sworn custody of the clerk. His oath of office applies to the duty of drawing and the oaths of the others apply to the duties assigned to them. If they exchange duties their respective oaths do not accompany the exchange. If the sheriff assumes to draw the jurors he does not make, himself the sworn clerk of the court, and if the clerk undertakes to keep the minutes of the drawing, he does not become judge or sheriff for the time being. If their duties are lawfully interchangeable, why may not the sheriff swear the witnesses and jurors, and the clerk serve executions ?
It is a part of our daily experience that the only reason which can be urged for holding ineffectual a service by one official which if done by another would be effectual is that the law has so arranged and apportioned duties, and unless this reason, is maintained we shall not be long in lapsing into legal chaos.
The fact in the first ground of challenge was admitted by the demurrer- for the purpose of the question. When the occasion came for the clerk to convert the grand list into slips, and to clear the box of old ones, and place the new ones therein, the judge was not in attendance. That responsible duty was left to the clerk alone, and without a witness. The law is very exact in requiring at least two to be present at every stage in the process down to the issue of the venvre. It has not been content to leave any part to the sole fidelity of one however eminent or apparently trustworthy, and it has provided positively that on the occasion of replenishing the box the judge shall be present. No one else is required to attend with the clerk. On examining the statute no one can fail being struck with the exceeding care 'manifested to guard the jury process against all chance of mistake and fraud, and even against all suspicion of error. The present officers may be safely trusted. But the same rule must apply to their proceedings which would be applicable to the doings of suspected agents.
In this case the jury objected,to was not a jury provided in accordance with law. The defects were cause of principal challenge and were substantial. The regulations referred to and which were in some respects evaded and in others only partially followed, belong to the safeguards devised by the wisdom of the Legislature to ensure good juries and to keep .the administration of justice pure and preserve confidence in the judicial tribunals. The defendant waived nothing. He made his challenge promptly and in due form. Was it due to law and justice to disregard his objection ? If so, to what extent must deviations from the statutes regulating jury process be carried to justify exception ?
It seems to me the irregularities pointed out are insurmountable and that the case ought to go down to another jury-.
But the members of the court, whilst agreeing in opinion that the record contains no other grounds for a reversal, are equally divided upon the questions raised by the. challenge, and therefore the judgment must stand affirmed.
The other Justices concurred. | [
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Marston, C. J.
The facts as found by the circuit judge appear in the margin.
The law of this State relating to the assessment, levy and collection of taxes, does not regard certain designated territory as a township until the proper officers necessary to conduct its affairs have been elected. The officers of the new township not having been elected- until July, there was not such a perfected organization as would enable that township to assess the township and school taxes for that year. Under such circumstances, in my opinion the township of Harris-ville had a right to levy and collect the taxes in question. But whether it did or not, the present action will not lie to recover the moneys so collected. If it did have, this is not the proper remedy; if it did not, its action cannot be ratified by the town of Comins, and an action maintained for the money.
In either view the judgment below was correct and must be affirmed with costs.
Cooley and Graves, JJ. concurred.
Campbell, J. I concur in the result.
The facts found are as follows: From the year 1869 until the twenty-second day of March, A. D. 1877, the county of Oscoda was attached to the county of Alcona, for judicial and municipal purposes, and up to the last-named date the township of Harrisville lawfully and legally exercised municipal jurisdiction over the territory comprising the said county of Oscoda. \
That on the last-named date the legislature passed an act (No. 263, Sess. Laws 1877), organizing the county of Oscoda into a township, called by said act the township of Oomins, said act taking immediate effect.
In the year 1877 the supervisor of the township of Harrisville made an assessment roll, embracing, with other territory, all the territory in the county of Oscoda. The total amount of taxes spread upon the whole roll was $28,293.24, of which there was assessed for townslHp taxes $809 76; for school taxes $4164.65. Included in the two last-named items was the sum of $469.39 for township tax and $1702.01 for school tax, which two last-named items were assessed upon the territory comprised in the county of Oscoda. Said two last-named items were collected by the treasurer of the township of Harrisville. The interest on said two last-named items to day of trial is $341.95.
The township of Oomins elected officers of the township in the month of July, 1877. This was the first election of township officers in the township of Oomins.
In the year 1879 the township of Oomins, by its duly-constituted agent, made a demand on the township board of the township of Harrisville for the payment to the township of Oomins of both of said items of township and school tax, and interest thereon, stated above to have been collected from the county of Oscoda.
Upon the foregoing facts found it is concluded that if the said tax was legally assessed, then the money arising from the assessment belongs to the defendant; if the assessment of said tax was without legal power or authority, and therefore void, then the money so collected belongs to the tax-payers who paid it.
In this case, as a conclusion of law, we say that the defendant is entitled to judgment.
Bated May 5, 1880. J. B. Tuttle, Circuit Judge. | [
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Marston, C. J.
Defendant in error recovered a judgment against the city for injuries sustained by reason of a defective sidewalk. It is not claimed that the action would lie in tin's State in the absence of a statute creating the liability. The plaintiff below relied upon act No. 244 of the Laws of 1879, p. 223, which is entitled “An act for the collection of damages sustained by reason of defective public highways, streets, bridges, crosswalks and culverts.” The first section of the act creates a liability in favor of persons “ sustaining ■bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, crosswalks and culverts on the same in good repair.” The second section creates a liability for damage to any animal, cart, carriage, etc., receiving any injury by reason of neglect to keep in repair any public highway, street, bridge, crosswalk or culvert, and in each section it is the township, village, city or corporation, whose duty it is to keep such highway, etc., in repair, that is made-liable. The fourth section makes it the duty -of such municipalities to keep in good repair all public highways, streets, bridges, crosswalks and culverts, and when the means provided by law are insufficient for such purpose, they are-authorized to levy such additional sum, within certain limitations, as may be necessary.
It is noticeable that sidewalks are not in express terms mentioned in this statute, and that the act is made applicable to townships, villages, cities and corporations whose duty it is to keep the highway in repair. It must be seldom, indeed, if at all, that sidewalks can be found in townships outside of the corporate limits of villages, while crosswalks,, bridges and culverts will be found in cities, villages and townships. In the repair and construction of crosswalks, bridges and culverts, the expense or cost is collected by a general tax upon the property within the corporation, or some district therein, and for this reason the authority given in the fourth section to raise an additional sum for such purpose, when necessary, is appropriate. The expense of constructing and repairing sidewalks, however, is not usually paid out of the general highway fund, but is made a charge upon the owners of property abutting thereon, and to this extent the fourth section would have no application.
Again, if sidewalks are embraced in the general terms used, then if an animal is driven on the sidewalk and injured, the municipality would be liable for the damages sustained, if liable under the first section for injuries to persons traveling on the sidewalk, and this evidently could not have been intended by the Legislature.
We have but little doubt that if the liability had been ere ated for injuries sustained in consequence of a failure to keep in repair the highways and,streets, these terms would have included all within the limits of the line thereof, and thus the sidewalks as well as the bridges, crosswalks and culverts. The special terms used do not enlarge, but limit the force of the general words used. In village and city charters express provisions relating to sidewalks will always be found, and the omission of such in this act is very significant.
As already said, the city would not be liable in the absence of this statute, which creates the liability, and we cannot by construction enlarge the liability. Where a statute attempts, in derogation of the common law, to create a liability, we cannot go beyond the clearly-expressed provisions of the act. Such statutes are not to be extended or enlarged in their scope by construction.
The judgment must be reversed with costs of both courts.
The other Justices concurred. | [
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] |
Campbell, J.
Hubbard brought an action in March, 1878, in the Kalamazoo circuit upon a promissory note against John P. McNaughton, Flora McNaughton, Moses A. McNaughton, William Blass and Moses J. Mallock, getting service on all but Mallock. The defendants who were served pleaded, and on May 14, 1878, a judgment was rendered, but from the contradictory statements in the record we are unable to say whether it was against them all, or only against Blass and John McNaughton. It does not appear that any of the defendants complained of this judgment on error or otherwise. On the fourteenth of May before mentioned an execution was issued and levied on certain lands which Blass and John McNaughton had assigned to Blake for creditors.
On the 6th of June, 1878, Hubbard filed a bill in chancery against Blake and his two assignors, in aid of this levy, which was ultimately disposed of in this court on appeal, in favor of Hubbard, in April, 1880.
The assignment' was made February 12, 1878. On the 3d of May, 1878, an affidavit was sworn to and garnishee process issued against Blake as holding property belonging to Blass and John McNaughton. He denied having any property belonging to them, and on interrogatories disclosed the facts relating to the assignment. On the 3d of June, 1878, he demanded an issue.
After this nothing was done until May, 1880, when Hubbard brought the garnishee issue to hearing, against the exceptions of Blake taken on the trial, and recovered judgment against him. At the time of the trial it appeared that he had in his possession, in addition to cash to a larger amount than this judgment, about $600 of personal property, and some securities. This disclosure is not printed with the record, and so far as we can determine was never filed. There is nothing to show what personal property the assignee held when garnished.
There was testimony on the trial concerning the estimated value of the land levied on. There was also evidence of two later individual levies, one on McNaughton’s interest, and one on Blass’ interest in the same lands, and evidence was excluded of another levy against Flora McNaughton, William Blass and John P. McNaughton on a judgment rendered in 1880 upon a note dated in 1879, and garnishee proceedings against Blake under that judgment.
Blake was also precluded from showing that Hubbard had sued out another garnishee process against him, in the same suit now in controversy, on the 9th of April, 1880, which was just after the decision of this court in the chancery case.
As a reason for delay in pursuing the garnishee proceedings earlier, Hubbard affirmed that he understood from his attorney that there was an agreement to keep them open until the chancery case should be decided. No such agreement was proved.
The garnishee statute contemplates speedy proceedings. Its necessary operation is to tie up the hands of the garnishee and subject him to expense and annoyance. It cannot be regarded as a proceeding in the ordinary course, for it involves many consequences which could not otherwise arise either in law or in equity. If such proceedings could be delayed indefinitely it might not only injure the garnishee, but it might also affect other persons who have claims on the property in his hands. It appeared in this case that defendant offered to show subsequent garnishee proceedings commenced before the final decision of the chancery suit, but was not allowed to do so.
The statute, § 6477 of the Compiled Laws, declares that if the plaintiff obtain judgment against the principal defendant and there is not within two days a notice of motion for new trial or that the case will be removed to the Supreme Court, the statutory issue shall stand for trial at the term of the court, on the docket containing the suit in the order of the formation of such issue. If a jury is demanded the court is to appoint a day unless the jury has been dismissed, and then it is to stand on the jury docket of the next term. Continuances may be granted as in other eases, and the plaintiff is required to see that the case is docketed, and to notify the garnishee. By section 6481 provision is made that if the principal cause is appealed to the Supreme Court and affirmed, the issue in garnishment shall be tried at the end of the next •court or term to which the case has been continued, or at the ■end of that which was in existence at the time of affirmance.
In 1873 a new section was added at the end of the chapter providing that if the principal defendant failed to appear, the plaintiff must perfect his proceedings against him as soon .as he can lawfully do so, and in default of this the garnishee proceeding may be ordered discontinued with costs. Sess. Laws 1873, 80.
We think that the cause cannot be kept open without either a continuance in form or some action equivalent to a consent -of the garnishee. As the statute of 1873 allows any interested person as well as the garnishee to move for a discontinuance, we are not prepared to say that even the garnishee’s consent, after other rights intervene, would cut them off. The general doctrine is that a garnishee cannot waive the rights of other persons. Tabor v. Van Vranken 39 Mich. 793. As the bill of exceptions shows no attempt to prove consent by the garnishee, it is to be seen whether the circumstances shown authorized it without positive consent.
The property held by the gaimishee did not belong to the principal debtors, and was not so claimed. As to them the assignment was binding. The liability of Blake as garnishee arose, if at all, under Comp. L. § 6498, which allows property conveyed in fraud of creditors to be reached. See Fearey v. Cummings 41 Mich. 376; Farrington v. Sexton 43 Mich. 454 ; Cummings v. Fearey 44 Mich. 39.
The decisions on the subject of frauds against creditors do not hold fraudulent assignments so absolutely void that the parties may not lose their right of complaint by waiver or acquiescence. They cannot attack it until they have acquired a legal standing in some way, and they may let it stand if they please.
In the present case it appears that Hubbard sued out his writ of garnishment to reach such property and effects as could be garnished. This was May 3, 1878. On the 14th of May, 1878, he levied on lands. He did not file his bill in aid of the execution levy until after the garnishee defendant had made an issue of fact to be tried at law, under which so far as the personalty was concerned the whole question of fraud could be determined.
The suit in equity could in no way affect the validity of the garnishee proceedings. Whatever effect it had as determining the rules of law for construing the assignment, it could only operate to maintain the levy. The facts which seemed to the court in equity as not affecting Hubbard’s right of complaint, might have been quite different as shown to the court or jury in the garnishment issue. The record before us in the chancery suit indicates very clearly that some creditors had accepted the assignment. It might have appeared in the trial at law that Hubbard had done so. Our decision could in no way operate to preclude a further legal investigation on that matter. Our rulings in fact are no further binding on other controversies than if we were jurors, so long as the issues are distinct.
There was no legal reason why the case at law, which was ready for trial before the bill was filed, should not have been tried first. It is not customary to deprive parties of common-law trials on questions which can be dealt with in common-law courts as well as in equity. If this issue had been tried when it was ready for trial, the judgment of this court could probably have been had upon it a year or more in advance of the hearing on the chancery appeal.
We think that unless Blake was a party to this delay, the proceedings must be regarded as abandoned.
For this error the judgment must be reversed with costs and a new trial granted. It does not seem to us that anything was in the way of the execution sale, or that it interfered of itself with the garnishee proceedings if otherwise valid.
The other questions, except as before referred to, are not important.
The other Justices concurred. | [
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Campbell, J.
Curtis sued Sayles in ejectment and recovered judgment. Error is assigned on rulings on the trial and on the conclusions of law.
There are some interesting and complicated questions presented on the argument, but the defects in the facts found make it difficult to reach them.
Title is traced into two Indians, of two separate parcels of land. One of them is found to have conveyed as sole heir to the other, but there is no finding either that he was sole heir or how he became so.
Phebe Sayles, wife of Henry S. Sayles, was made a defendant in a chancery suit for the foreclosure of a mortgage, under the decree in which case Curtis asserts his title. It does not appear from the finding what title she had or claimed, but it does appear inferentially that she was in possession, and that demand of possession was made of her under the confirmation of sale. There is no finding that she was brought in so as to be bound by the decree. If she was in possession, claiming title in her own right, she should have been made defendant in this suit. That matter, therefore, was not unimportant.
The whole finding leaves too much to be inferred. For the defects pointed out we think there was a mistrial, and a. fuller finding would, perhaps, have made some questions now raised inapplicable.
Judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Cooley, J.
Collins sued the Marquette & Pacific Rolling Mill Company to recover compensation for labor performed for the company in the year 1877. Beecher was made a joint defendant, as being a stockholder. A bill of particulars being called for by Beecher, was given as follows:
The above work performed as common miner in the Rolling Mill Mine.
On the trial the plaintiff gave evidence tending to show that he was employed to labor ■ for the Rolling Mill Co. in 1877; that W. W. Wheaton was treasurer and general manager of the company in that year, and James Bale superintendent under him, and that Bale, under Wheaton’s direction, gave to the laborers time or due bills when they left respec tively. He then offered in evidence the following paper, having first proved the signature to it:
“No. 4099. Negaunee, November 7th, 1877.
Due Maurice Collins for labor from the Rolling Mill Mine on pay day, one hundred thirty-seven dollars ($137).
W. W. Wheaton, Treasurer.
By James Bale, Supt.’’
This was objected to because it varied from the bill of particulars, and the objection was sustained. No other reason was assigned.
The variance from the bill of particulars must consist in this: that the paper rejected did not specify the months in which the labor was performed. But this, we think, was altogether too technical. The paper tended to prove an indebtedness for labor existing at its date, and was admissible on that ground even though, standing alone, it might not have gone far enough to make out the plaintiff’s case. No single item of evidence can be rejected upon the sole ground that it falls short of making a case; if it contributes to that end it must be received, and its sufficiency in connection with the other evidence must be determined on a review of the whole when the case is closed. Moreover, when the sole objection is that the evidence offered varies from the bill of particulars, if the variance is merely formal, it is better to permit an amendment of the particulars than to reject the evidence, because the amendment will generally be in furtherance of justice, unless there is reason to believe the defendant will be prejudiced thereby.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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North, J.
This suit arises from an automobile accident in which plaintiff was struck and injured by an automobile owned by defendant. On trial by jury, plaintiff had verdict and judgment. Defendant has appealed. The questions presented are whether the trial judge was in error in holding as a matter of law that defendant was guilty of negligence and plaintiff was free from contributory negligence; and also whether the verdict of the jury was against the great weight of evidence on the issue of plaintiff having executed a valid release.
Plaintiff, a man 73 years of age, resided in the village of Millburg. The main thoroughfare is the Territorial road, which extends in an easterly and westerly direction through the village. The paved surface is 30 feet in width, with a dirt shoulder on the southerly side. A north and south road, herein called the Watervliet road, intersects the main highway. About 14 or 16 rods westerly from this intersection, and on the southerly side of the main thoroughfare, is a pool room which plaintiff visited on the evening of the accident. He left this pool room at approximately nine o’clock and started to walk to his home, which was northerly from the intersection of these two highways. Plaintiff claims that he started easterly from the pool room walking along the dirt shoulder six or seven feet from the southerly edge of the pavement, and when about half way to the intersection of the highways he was knocked down by defendant’s automobile and seriously injured. Defendant’s son George, who was about 15 years of age, was driving the machine at the time. The street was lighted by ordinary electric bulbs of 75 to 100' watts each. One of these was located at the intersection of the highways and another somewhat westerly from the point of accident.
Defendant’s son testified that previous to the accident he had had experience in driving automobiles over a period of five or six years, and that the model T Ford involved in this accident at the time was in good condition as to brakes and lights. Starting near the pool room, defendant’s son claims that he drove in an easterly direction on the southerly half of the paved portion of the main street, planning to turn in a northerly direction at the intersection with the Watervliet road; that the lights on his machine were burning, and that he was proceeding at a speed of about 10 miles per hour, watching ahead, and all of a sudden he heard a bump, stopped the automobile immediately, backed up six or eight feet, and saw a man lying on the pavement in front of his car. Upon getting out of the automobile he found that the injured man was Mr. Tio. The driver of the automobile testified that notwithstanding he was watching ahead, he saw no one in the path of his car before the accident. No warning was given by the approaching automobile. At least four people who were in the immediate vicinity of the place of the accident were almost instantly upon the scene. All of these people, as well as'defendant’s son, testified that immediately following the accident plaintiff was lying on the paved portion of, the road three to five feet north of the southerly edge of the pavement. He was unconscious, his head was lying to the east, his feet six or eight feet from the automobile standing on the pavement. At the time of the accident the pavement was dry and seems to have been free from other traffic. Plaintiff claimed he was struck while walking south of the pavement on the dirt shoulder; but defendant claimed plaintiff was struck' while on the pavement.
With the record substantially as indicated above, the court at the conclusion of the proofs instructed the jury that defendant was guilty of negligence as a matter of law. The court’s position on this phase of the case appears from the following extract from the charge to the jury:
“Now, from a legal standpoint, as to the liability of the defendant, I don’t think it makes any difference, for this reason, if the driver of the car did leave the pavement he was guilty of negligence in so doing. If, on the other hand, he struck the plaintiff while the plaintiff was walking along the paved portion of the highway, then in that event the defendant or driver of defendant’s car was negligent in not seeing the plaintiff, because the law provides that one driving an automobile must at all times have it under such control that he can stop it within the range of his vision.”
At the close of the proofs defendant’s counsel moved for a directed verdict on the ground that there was no proof of negligence chargeable to defendant, and because “the evidence in the case conclusively establishes the fact that plaintiff himself was guilty of contributory negligence. ” Neither the question of defendant’s negligence nor plaintiff’s contributory negligence was submitted to the jury. The court determined each of these issues as a matter of law in favor of plaintiff.
There was a direct conflict in the testimony as to the facts and circumstances under which this accident happened. The jury could not determine the issue of defendant’s negligence or of plaintiff’s contributory negligence without determining from the testimony the circumstances under which plaintiff was injured. If, as claimed by plaintiff, he was struck while walking along the dirt shoulder some six or seven feet from the southerly edge of the pavement, the facts which constituted defendant’s negligence of necessity were very different than they must have been if plaintiff was upon the pave- ■ ment when struck, as the defendant claims, and as the testimony offered in his behalf quite convincingly indicated. Likewise, the question as to whether plaintiff was guilty of contributory negligence would be very different in the one instance than in the other. At the time of arguing the motion for a directed verdict, the following colloquy occurred between the court and plaintiff’s counsel:
“The Court: * * * suppose the jury finds against him (plaintiff) on that point, and finds he was walking on the pavement, wasn’t it the duty of the driver of the car to see him and have his car under such control—
“Mr. Harvey: I am not sure he was on the pavement.
“The Court: He must have been walking on the pavement according to your theory.
“Mr. Harvey: He could have stepped onto the pavement.
“The Court: No evidence that he did. * * *
“Mr. Harvey: Suppose he stepped suddenly in front of that car?
“The Co^lrt: I cannot conclude that. The evidence is that—
“Mr. Harvey: You cannot conclude that he didn’t.
“The Court: Yes, he was there and he was struck by this car. I think I will have to charge the jury upon that question and leave the sole question of whether or not he (plaintiff) intelligently entered into that agreement (the release) at that time.
“Mr. Harvey: I think that will be gross error if the court does.”
It is plain from the above that defendant’s counsel was urging upon the court the necessity of submitting to the jury as a question of fact whether or not from the testimony as a whole it did not appear that plaintiff had turned to his left to cross the pavement in a northerly direction and in doing so had unexpectedly stepped in front of the approaching automobile. We think the trial court was in error in holding there was no testimony tending to sustain this theory of the accident. The driver of defendant’s car testified that the lights were in first-class condition and that he was looking straight ahead as he approached the point of accident and that he saw no one on the pavement. Even plaintiff testified he was not upon the pavement. But there is ample proof to justify the conclusion that plaintiff was upon the pavement when he was struck by the automobile. If the jury believed the driver’s testimony, almost of necessity it would have found that the reason the driver of the car did not see any one ahead of it as he approached the point of the accident was because the injured person stepped upon the pavement at the point of the accident immediately in front of the automobile. If the accident happened in this manner, it could not be held as a matter of law that the driver of the automobile was guilty of negligence or that plaintiff was free from contributory negligence. The law is well settled that under such circumstances the plaintiff would have been guilty of contributory negligence if he attempted to cross the pavement without making any observation as to approaching vehicles.' He was bound to use the care that an ordinarily prudent person would have used under like circumstances. Neeb v. Jacobson, 245 Mich. 678; Billingsley v. Gulick, 252 Mich. 235. Assuming that plaintiff was walking in an easterly direction upon the southerly part of the paved portion of the highway, which he had a right to do, he was bound to exercise reasonable care for his own safety.
‘‘Pedestrians in a public highway have a right to assume that the driver of an automobile will use ordinary care for their protection, but they may not rest content on that assumption and take no care for their own safety.” People v. Campbell (syllabus), 237 Mich. 424.
" One traveling along or crossing a street or highway is not necessarily required to look back for the approach of vehicles; if struck by an auto coming behind him, his negligence presents a jury question.” 5-6 Hucldy Encyclopedia of Auto Law (9th Ed.), § 84, citing many cases.
"A pedestrian, equally with the operator of an automobile, has the right to be on and to use the traveled part of the highway, and is not restricted to crossings at street intersections or sidewalks, but may proceed along the street. * * * (But) one who uses the roadway for sidewalk purposes without taking any precautions for his own safety though he can see the lights of an automobile which strike him long before it reaches him, is guilty of contributory negligence barring recovery for the injury received.” 2 Blashfield Cyclopedia of Auto Law, chap. 49, § 20, citing Willis v. Harby, 159 App. Div. 94 (144 N. Y. Supp. 154.)
The judgment entered must be reversed on the ground that the record presented an issue of fact for the jury on the question of the negligence of the driver of the automobile and also the question of plaintiff’s contributory negligence.
Appellant’s contention that the verdict of the jury as to the validity of the receipt or release executed by appellee was against the great weight of evidence is without merit.
The judgment entered in the circuit court is set aside, and the case remanded for retrial. Costs to appellant.
McDonald, C. J., and Clark, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
This is a suit to foreclose a land contract, executed by plaintiffs as vendors and the Guardian Trust Company, trustee, as vendee, in which the vendee’s interest therein and obligation thereunder has been assumed by the Union Guardian Trust Company, by merger of the Guardian Trust Company and the Union Trust Company under that name. Decree passed for plaintiffs, adjudging the sum of $115,934.25 due, and granting the trust company remedy against “syndicate members,” hereinafter mentioned, for deficiency liability. The trust company denies liability of the Guardian Trust Company in its corporate capacity because the land contract was executed by the Guardian Trust Company, as trustee, and plaintiffs were advised of the trust and the capacity in which the vendee acted by a copy of the trust agreement attached to the land contract at the time of its execution and delivery to plaintiffs, and contends that to hold it liable in its corporate capacity renders the contract one beyond its corporate powers, and, therefore, ultra vires. Plaintiffs insist upon the letter of the contract. The letter of the contract holds the vendee in its corporate capacity if the contract was not ultra vires.
The defendants Wormer & Moore, a corporation, Kenneth Moore Land Company, a corporation, Charles - R. Murphy, Adolph Finsterwald, James Vernor, Jr., Frederick M. Montefiore, George W. Trendle, Lucien S. Moore, Jr., and Harold F. Ward-well, desired to purchase the property described in the land contract, and for that purpose executed a so-called syndicate agreement, under which the subscribers were to pay for specified interests in a set-up price for the land and have the title taken in the name of the Guardian Trust Company, as trustee, under a trust agreement. November 6, 1928, plaintiffs signed the land contract and gave it to the Guardian Trust Company for execution. November 20, 1928, the trust agreement between the syndicate members and the Guardian Trust Company was signed. The agreement recited that the Guardian Trust Company had entered into a land contract for the purchase of the premises. The trust company declared therein that it held all interest in the land contract in trust for the syndicate members, and the agreement defined the purpose. Thereupon the Guardian Trust Company executed the land contract, and attached thereto a copy of the trust agreement.
The trust company had an undoubted right to contract for the property in a trust capacity. It claims that it did so, and to hold it liable in its corporate capacity would render the contract ultra vires. It is manifest that the trust company intended to purchase as trustee, but, unfortunately, executed the contract without proper designation to that effect. The mistake was not mutual, and reformation cannot be- decreed. The contract on its face binds the trust company in its corporate capacity. Does that fact render the contract ultra viresf The extent of the corporate'power is found in the statute under which the trust company was organized, and, being a public law, plaintiffs and the trust company must be held cognizant of its provisions with reference to this transaction. We cannot hold the contract ultra vires.
The trust company was empowered to act as trustee.' It could purchase real estate for trust purposes. It was not an ultra vires act for it to do so in •this instance. The trust agreement came into existence after plaintiffs had signed the contract but before the trust company signed, and, as between the vendee and the syndicate members, the trust is valid. This being true, the trust company had power to make the purchase in its corporate capacity for the purposes of the trust. But if the land contract were ultra vires that defense cannot be made.
After the land contract was executed but before this suit was instituted, the legislature, by Act No. 327, Pub. Acts 1931, known as the “Michigan general corporation act,” provided (section 11):
“The plea of ultra vires shall not be made by anyone except the corporation in an action between it and a director or officer thereof or a person having actual knowledge of the ultra vires act and ex cept by either party in an action between a shareholder and the corporation. The foregoing provision shall be construed as a limitation on the power of a corporation.”
Just what is meant by a limitation on power is not clear, for an ultra vires act is one beyond corporate power. The act takes away the defense that a contract, such as we have here, is void if the corpo - ration exceeded its power in entering into it.
But it is contended that the defense of ultra vires is a vested right and cannot be taken away by legislation subsequent to an ultra vires act. We cannot so hold. Public policy, as expressed by the legislature, forbids the plea of ultra vires, except in specified instances, of which this is not one. The doctrine of ultra vires is intended to keep private corporations within their fixed powers. If a corporation transcends its powers it constitutes a violation of its charter, and the State may, by statute, say when a corporation may and when it may not plead its violation in release of contracts otherwise legitimate.
The contract was one the trust company could unquestionably make in furtherance of its capacity to act as a trustee. It may have made an error, but this error did not at all release it from its obligation under the trust agreement to acquire the property for the benefit of the syndicate members. If the contract is held ultra vires then1 the purpose of the trust will be destroyed.
The trust company did not plead ultra vires. The defense of ultra vires must be pleaded, and may not be left as a resort against an adverse decision, for it is a general rule that it should not be permitted to prevail when it will not advance justice, but only where an imperative rule of public policy requires it.
The vendee asks for a reformation of the contract to the end that it stipulate noncorporate liability of the vendee. No mutual mistake authorizing reformation to such effect is shown. The mistake was on the part of the vendee in making the obligation of the contract its corporate obligation. Such error and the consequences thereof cannot be rendered nugatory by way of reformation. This leaves the question of whether the facts and circumstances within the knowledge of plaintiffs estopped them from insisting on the letter of the contract, and whether, in equity and good conscience, they should be required to recognize the trust capacity of the vendee and look for a deficiency, if any, only against the members of the syndicate for whom the vendee was in fact acting as trustee. The trust company contends that decree for deficiency should be against syndicate members only; all of them if jointly liable; individually if proportionately liable only. The trouble with this is the want of privity of contract between members of the syndicate and plaintiffs. It will be noted that the trust agreement was executed after plaintiffs had signed the land contract. True, the members of the syndicate authorized the trust company to act as trustee in their behalf, and, as between them and the trust company, they may, within the compass of their agreements, be held to respond to the trust company, but this response cannot be carried to the plaintiffs under the undertaking by the trustee in its corporate capacity. As between the trust company and members of the syndicate the addition of the word “trustee” to the corporate name in the land contract maintained privity with relation thereto but did not go beyond that and bring privity of contract between the syndicate members and plaintiffs. The land contract obligation, as said before, was that of tbe trust company. •
At an early date the law on this subject was clearly stated by Mr. Justice Story in Duvall v. Craig, 2 Wheat. (15 U. S.) 45:
“A trustee, * # * if he chooses to bind himself by a personal covenant, he is liable at law, for a breach thereof, in the same manner as any other person, although he describes himself as covenanting as trustee; for, in such case, the covenant binds him personally, and the addition of the words As trustee’ is but matter of description to show the character in which he acts for his own protection, and in no degree affects the rights or remedies of the other party.”
The syndicate members contend that the syndicate agreement was void under the so-called “blue sky law” (2 Comp. Laws 1929, § 9769 et seq.) and cite Freeze v. Smith, 254 Mich. 386. The decision in that case was bottomed upon a sale of a unit in the syndicate after formation thereof, and not on an agreement between organizers of a syndicate taking, proportionately, shares. It is not a violation of the “blue sky law” for several persons to join and furnish, proportionately, parts of the purchase price of real property to be held for their benefit by a trustee. Sales of units by such a syndicate, after organization, cannot be made without compliance with the “blue sky law.” Under the facts in this case, the point is without merit. See Lindemulder v. Shoup, 258 Mich. 679.
Defendant Frederick M. Montefiore, one of the organizers of the syndicate, was discharged from liability by the decree in the circuit.
Having in mind concessions made by counsel in the circuit and the record relative to his default and action taken on the strength thereof, we approve of the holding.
Defendant Murphy signed the syndicate agreement, but claims release by his default in payment. The syndicate agreement provided:
“Among other provisions, it shall be provided in the trust agreement that if any of the syndicate holders fail to pay on demand his proportion of the cost, payments and liabilities thereunder at the time or times when called for by the trustee, the remaining syndicate holders may purchase the interest of such defaulting party for the sum which he has paid under said agreement exclusive of interest and such payments may be made on the same terms and at the same time as the defaulting party has made payments. Such purchase shall not be obligatory upon the other syndicate members, however, and if such right of purchase is not exercised and if the default continues for 60 days, then the interest of the defaulting party in said syndicate and property shall be terminated without notice and all payments which he has made thereon shall be declared forfeited as stipulated damages and shall accrue proportionately to the interests of the other members of the syndicate.”
We cannot hold that default alone terminated Mr. Murphy’s contract relations.
It will be noted that the quoted agreement called for a demand of payment, and continuing “default of such defaulting party” for a period of 60 days. If the venture had proved profitable, Mr. Murphy would have been in until put out. Under the strict terms of the contract the same rule applies now to his desire to escape liability.
The decree in the circuit court is affirmed,'with costs.
Sharpe, J., concurred with Wiest, J. McDonald, O. J., and Clark, Potter, and North, JJ., concurred in the result. Fead and Butzel, JJ., did not sit. | [
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Sharpe, J.
The facts are stipulated. The defendant is trustee under a trust mortgage, dated August 1, 1927, given to secure an issue of first mortgage bonds, in the sum of $100,000. In it the mortgagor covenanted and agreed to deposit with the trustee semi-annually a sum sufficient to pay the interest on the bonds and the Federal income tax thereon, and—
“to déposit with the trustee on the 15th day of August, 1929, and on the 15th day of each and every calendar month thereafter, up to and including July 15, 1936, an amount equivalent to one-twelfth of the principal falling due the next succeeding principal payment date.”
It was also said therein:
“The intent hereof is that 15 days before said respective interest, principal, and tax payments, said sinking funds deposited shall be sufficient to meet the respective interest, principal, and tax requirements in full, -when due, with the exception of the principal requirement due August 1, 1937.”
■Bonds amounting to $6,000 matured on August 1, 1931. All interest thereon was paid. The plaintiff is the owner of three of these bonds, amounting to $2,000. There was at that time in the sinking fund created by the above provision the sum of $3,067.05. It demanded payment of its pro rata share of this amount from the trustee, and, on its refusal to do so, filed the bill of complaint herein to enforce such payment, and had decree therefor, from which the defendant has taken this appeal.
In our opinion, but one construction can be placed upon the provisions in the mortgage above quoted. The mortgagor agreed to pay to the trustee, in annual instalments, a sufficient portion of the mortgage debt to retire the bonds which matured on August 1, 1931. Had he done so and had the $6,000 then been in the sinking fund in the hands of the trustee, the holders of these bonds would have been entitled to payment in full. The mortgagor did not fully comply with his agreement in this respect, but he did pay to the trustee the sum of $3,067.05 as part payment thereof, and this money was received by the trustee and placed in the sinking fund for that purpose. Clearly, the plaintiff is entitled to its pro rata share thereof.
The.defendant urges that it will be inequitable to permit the holders of bonds which first matured to receive the money now in the sinking fund, when it appears that the mortgage is in default, and thus give a preference to one bond over another. All of the bonds were issued pursuant to the terms of the mortgage, and purchasers are chargeable with notice of the rights of those first maturing to the moneys paid into the sinking fund for. their retirement. A preference was thus provided for in the instrument itself, and a court can but enforce it as written.
A similar question was presented to the district court of the southern district of New York in Equitable Trust Co. v. Green Star Steamship Corp., 291 Fed. 650. In an exhaustive opinion Judge Hand discussed the question and arrived at the conclusion we have stated. '
By an order entered in this court, ^William T. Hatch, receiver of the First National Bank of Dear- born, a National banking corporation, was permitted to intervene. He is the holder as snch receiver of certain of the bonds which matured on August 1, 1931, and is entitled to the same pro rata share of the sinking fund as is the plaintiff;
The decree of the trial court is affirmed as to the plaintiff, and a provision may be here added relative to the rights of the intervener as above stated. No costs will be allowed.
McDonald, C. J., and Clark, Potter, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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Wiest, J.
Defendant was convicted of obtaining a check for $50 by means of false and fraudulent pretenses. The jury found that defendant, or some one acting in concert with him, called the office of the Chain Link Pence Company, over the telephone, and solicited one of the partners to subscribe $50 for advertising, to be inserted in a year book to be put out by the Detroit Republican Club, and soon thereafter defendant appeared, obtained the check for' $50, payable to the Detroit Republican Club and the check was cashed at a bank under forged indorsement. No such year book was at that time contemplated by the club, and defendant, who was then an employee of the club, was well aware of the fact. The check was not turned in to the club. Many errors are assigned, but, under the record, few can be considered.
Error cannot be assigned upon testimony received at the trial without objection. An objection that the information is duplicitous cannot be raised for the first time in the circuit court by motion for new trial, and, when so attempted, cannot be considered here.
Counsel for defendant, in his brief, states that the-trial- — -
“was a rather loose trial which should entitle defendant to the benefit of all such objection and exception as under the record appears he might have asserted and which might have been saved by full and proper objection. We urge this particularly under 3 Comp. Laws 1929, § 17322.”
That statute is a part of the criminal code, and reads:
“It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. ’ ’
While the section is new in the statute, the idea is old in practice and long known to judges and lawyers. It does not serve the purpose sought by counsel.
After impaneling the jury and before taking tes- ■ timony, the prosecutor asked leave to indorse two names on the information. Leave was granted, and an adjournment offered and declined. The court had power, upon proper showing, to allow the indorsements. 3 Comp. Laws 1929, § 17254; People v. Blue, 255 Mich. 675. The point urged against the indorsements cannot be considered because not alleged as error in the notice of appeal.. Court Rule No. 59, § 3 (d) (1931), requires a statement of grounds for reversal, and provides:
“No other grounds or reasons shall be considered on the appeal except those so stated. ’ ’
See Parker v. Kettinger, 257 Mich. 385, 389. One purpose of the rule is to give information to the nonappealing party, requisite to preparation of a complete record relative to points for review. Had the error heen so alleged, the prosecutor’s attention would have been called to the need of a full record on the subject, inclusive of the showing made, if any.
"We find in the record a waif styled “Assignments of error not set forth in notice of appeal,” and alleging error in denying the motion for a new trial and in permitting the names to be indorsed on the information. Such assignments cannot be considered. The old practice required the assignments of error to accompany the proposed bill of exceptions and the new practice requires the claimed errors to be stated in the notice of appeal.
The court was not in error in admitting testimony relative to defendant’s participation in the commission of a similar previous offense for the purpose of its bearing upon his particular intent in the instance on trial. The court, by instruction, limited consideration to such purpose. 3 Comp. Laws 1929, § 17320, so provides and the rule has been repeatedly announced by this court. People v. Henssler, 48 Mich. 49; People v. Wakely, 62 Mich. 297; People v. Summers, 115 Mich. 537; People v. Rice, 206 Mich. 644; People v. Di Pietro, 214 Mich. 507; People v. Crawford, 218 Mich. 125.
At the close of the proofs in behalf of the prosecution, defendant’s counsel moved for a directed verdict of not guilty, on the ground that intent to defraud and fraud accomplished had not been shown. The information set up the check and charged that it was for the sum of $50, of the value of $50, and obtained by defendant from the maker by false representations, made with intent to cheat and defraud. Representations, inducing the making of the check, were designedly false. Defendant called for and received the check and the fraudulent purpose was consummated. The criminal character of the act is determined by the means used in obtaining the check. People v. Lennox, 106 Mich. 625; People v. Lintz, 251 Mich. 367.
The evidence presented issues of fact, the instruction stated the issues, and the verdict was fully justified. We find no reversible error. Conviction affirmed.
McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
This is an appeal by defendant from an amended decree requiring him to pay $15 per week toward the support of his three children, aged respectively 10, 12, and 14 years. The parties were divorced August 12,1930, and plaintiff was awarded property for permanent alimony, dower rights, and support of the children, in accordance with an agreement found to be fair, and incorporated in the decree by reference. By that agreement, plaintiff was given valuable equities in real estate and as “perma nent alimony for the support and maintenance of herself and the support, maintenance, and education of said minor children,” also in lieu of dower. The fairness of the agreement is not attacked, for plaintiff wants to keep all given her, but finds the income from the properties will not meet interest on incumbrances, pay the taxes, and afford support for herself and the children. The expensive residence of the parties, incumbered by a large mortgage, was given plaintiff in the settlement agreement, and, after the divorce, she traded this for a cheaper home, incumbered by a mortgage, and received $10,000 in cash, most of which was used to meet pressing obligations. Plaintiff also received the vendor’s interest in two valuable land contracts, subject to a mortgage of $25,000. While the contracts are divisible, the mortgage is indivisible, and the mortgagee will not release the smaller parcel without a substantial payment on the mortgage, and plaintiff is unable to do this and realize on the smaller contract. The large contract is very valuable, and brings plaintiff $6,000 per year, but much of this is consumed by interest plaintiff must pay on the mortgage on such property. The equity plaintiff has in such property is valuable, and, if it could be sold, would afford adequate means of support for herself and children, but the settlement agreement provides:
“That she will not sell the above-described vend- or’s interest in the Kuhn contracts, so called, for a period of five years from the date hereof, provided, however, that she shall have the right to pledge the same for such sums as may be necessary for the support and maintenance of herself and her said children in order to tide over periods in said contracts when sums payable thereon are not sufficient for that purpose.”
Under present conditions it will be difficult, if not impossible, to find any one willing to advance money on such a pledge subject to a mortgage of $25,000. This saves the plaintiff from an accusation that she desires to conserve the property to her own benefit, and, to that end, asks the court to be relieved from her obligation to support the children. If there were no restraint upon her right to sell her equity, we would require her to do so, and, out of the avails, support the children.
The parties evidently lived in an extravagant manner. Defendant, before the divorce, received a salary of $25,000 a year. The day following the signing of the decree defendant remarried, and is now living in Kentucky on a farm owned by his present wife, and is engaged, as a member of a corporation, in raising unsalable saddle horses. He claims to be without financial means. The children must be supported, and the court had adequate power to amend the decree to this end at any time. The award made will probably require plaintiff to readjust her style of living, and require defendant to spur himself to some financial effort.
Upon consideration of the record, we discover no reason for interfering with the order in the circuit. The amended decree is affirmed, with costs to plaintiff.
McDonald, C. J., and Clark, Potter, Sharpe, North, Pead, and Butzel, JJ., concurred | [
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McDonald, C. J.
{dissenting). This bill was filed to recover the proceeds of a life insurance policy issued by the Bankers Life Company on the life of Bobert G-. Fisher, deceased, and payable to Caroline L. Fisher, his wife.
Mr. and Mrs. Fisher separated by mutual consent, and were living apart at the time of his death, but were not divorced. After their separation, Mr. Fisher attempted to change the beneficiary named in the policy to the plaintiffs, who are children by a former wife. In changing beneficiaries it was required that written notice from the insured be filed in the home office of the company, accompanied by the policy for indorsement. The company received the written notice but not the policy. The change in beneficiaries was not made. On the death of the insured, the plaintiffs claimed the insurance as bene-. ficiaries and brought suit to enforce their claim. The insurance company filed its answer and a bill of interpleader, paid the proceeds of the policy into court and was discharged.
The plaintiffs’ bill was filed on the theory that the insured did all he could to secure a change in beneficiaries but was frustrated in his efforts by Caroline L. Fisher, the original beneficiary, who had possession of the policy and refused to deliver it to him. In answer, Mrs. Fisher says that the policy was given to her by the insured and that he never afterwards requested that she return it.
These allegations and denials by the parties present the only issue in the case. The trial court determined it against the defendant, and entered a decree in favor of the plaintiffs. The defendant has appealed.
As cause for appeal, the defendant contends that the trial court erred in receiving and considering as competent evidence a conversation between the insured, his son, Edward J. Fisher, one of the plaintiffs, and Caroline L. Fisher, the defendant, concerning the refusal of the defendant to surrender the insurance policy.
The question arose when Edward J. Fisher was testifying for the plaintiffs. On direct examination he was asked to relate a conversation he heard between Caroline L. Fisher and the insured in regard to the insurance policy. He answered:
‘ ‘ The only thing was, after we got the stuff loaded, he says, H will go in and get my papers.’ Well, he went in the house*to get the papers and came on out and says, ‘Well, she would not give me the insurance policy.’ I says to her ‘Why don’t you give him what belongs to him and you leave him alone and he will leave you alone?’ and she told me to mind my own damn business.”
This testimony was received over defendant’s objection that it was prohibited by the statute concerning matters equally within the knowledge of the deceased (3 Comp. Laws 1929, §14219).
The witness and Caroline L. Fisher, the defendant, were opposite parties in interest in this litigation. They were both assigns within the meaning of the statute. Both are protected parties and neither may testify to matters equally, within the knowledge of the deceased who was their common assignor.
In Perkins, Evidence by Survivor, p. 117, § 85, the author says:
“Where, by the terms of the policy or certificate the assured has the right to change the beneficiary and has done so, the first-named beneficiary is not a competent witness against the second or last. * * * The question has generally arisen when the first-named beneficiary has attempted to testify. That such beneficiary is incompetent admits of no doubt. But the same rule must be applied to the second or last-named beneficiary should the occasion require it.”
The plaintiffs rely on Wright v. Wilson, 17 Mich. 192, as upholding the competency of this testimony. That case has no application. It arose under the original act (No. 125) of 1861, which did not protect the assigns of a deceased. It was not until the amendment (Act No. 155) of 1875, that protection was extended to heirs, assigns, devisees, and legatees.
It is contended that the trial court erred in refusing to receive in evidence a statement made by the insured, not in his wife’s presence,- that she had refused to surrender the policy.
The plaintiffs offered to prove by Carl A. Corey and W. R. Miller, who, as witnesses, signed the application for change of beneficiaries, that the insured stated to them he could not get his wife to surrender the policy. The court excluded the testimony on the ground that the statement was self-serving, made for his own benefit against the interest of the beneficiary who was not present, and therefore was inadmissible as evidence under the hearsay rule. The plaintiffs contend that the testimony was admissible for two reasons, first, because the statement was a declaration against the interest of the insured; and, second, that it was a part of the res gestee.
The statement by the insured was not against his interest. It was in his favor and of the plaintiffs, his assigns; and against the interest of the defendant, an adverse party. That such a statement in favor of the party making it and adverse to the interest of another who is not present is inadmissible as evidence is too well understood to require citation of supporting authorities. It is mere hearsay unless it may be considered a part of the res gestes.
To be a part of the res gestes a declaration must be made contemporaneously with the main fact which in this case was the defendant’s refusal to surrender the policy; or it must be so closely attached to the main fact as to derive some credit from it. If it is so detached from the fact in dispute that its credit depends entirely on the person who makes it, it is not a part of the res gestee. If not made contemporaneously with the main fact, it must be so near the time and circumstances that the mind of the declarant is yet actively influenced by it. It must be spontaneous and unreflecting. It has been said that it must be the “mind’s impressions of immediate events and not a narrative of past happenings,” “the facts talking through the party” and not the party “talking about the-facts.” See McKelvey on Evidence (Hornbook series), p. 405, §214; Jones Commentaries on Evidence (Horwitz Ed.), pp. 352, 353; Rogers v. Railway Co., 187 Mich. 490.
Measured by the tests applied by the courts and text-book writers, the statement in question was not a part of the res gestee. It was not made contemporaneously with the main fact or so closely in connection therewith as to derive credit from it. It was a mere recital of what had previously taken place between him and the defendant, an abstract statement depending entirely for its truth on the credit of the party who made it. It was not a part of the res gestee.
It is contended by the plaintiffs that, excluding the testimony of Edward J. Fisher and the two witnesses to the application for a change of beneficiaries, the facts and circumstances are sufficient to raise the presumption that defendant would not have surrendered the policy if she had been requested to do so; and that, therefore, the insured did all he could have done to secure the policy and present it to the company for indorsement of the change in beneficiaries.
The facts relied on to support this presumption are that insured and defendant had separated; that they had made a property settlement, and that the insured had “advertised her in the Moon-Journal.” These facts are not sufficient to justify the presump tion that defendant, if requested, would not have surrendered the policy.
As such a presumption cannot be reasonably indulged in from the conceded facts, it is not necessary to consider its effect on the rights of the parties. The plaintiffs alleged that the policy could not be changed because of the wrongful act of the original beneficiary in refusing to surrender it on demand. The defendant made denial in her answer and cross-bill. The burden of proof was with the plaintiffs to prove the facts alleged. Eliminating the incompetent testimony, there is a total absence of such proof. We are therefore constrained to hold that, on this record, the original beneficiary, Caroline L. Fisher, is entitled to the proceeds of the policy.
The decree should be reversed, with costs to the defendant.
Sharpe, J. It is conceded that the deceased, on July 8, 1931, executed, on a form furnished to him by the insurance company, an instrument for the purpose of changing the beneficiary named in his policy from Caroline Fisher (hereafter called the defendant) to Pearl Fisher, Myrtle .Sanborn, Edward J. Fisher, and IT. J. Fisher, and that this instrument was received by the company on July 30, 1931, and a notation made thereon, “Policy not received; file for any legal effect it may have.”
In John Hancock Mutual Life Ins. Co. v. Jedynak, 250 Mich. 88, 90, it was said:
“It is well settled that if the insured wanted to change the beneficiaries and endeavored, in a writing signed by her, to accomplish such purpose, and was only prevented by the original beneficiary refusing to turn over the policy and the declination of the insurer to grant her written request without pro duction of the policy, a court of equity will accomplish the clear purpose of the insured and frustrate contrary designs. ’ ’
Plaintiffs sought to prove that the defendant refused to turn over the policy to the deceased by the testimony of Edward J. Fisher, one of the beneficiaries named in the instrument sent to the insurance company. In my opinion, the trial court committed no error in admitting this testimony and in finding that the omission of the deceased to send the policy to the company was due to the refusal of defendant to deliver it to him. It is undisputed that the deceased and defendant were husband and wife and that they had separated. He went to his home to get his personal effects, and the question asked defendant by Edward, “Why don’t you give him (his father) wdiat belongs to him and you leave him alone and he will leave you alone ¶ ’ ’ and her answer thereto that he should mind his own business occurred at that time. While the deceased was then present and doubtless heard the question asked and the answer thereto, in my opinion the statute (3 Comp. Laws 1929, § 14219) did not render it inadmissible. This statute, which prevents opposite parties from testifying as to matters which, if true, were equally within the knowledge of the deceased, has been in force for many years in this State. It was considered by Justice Christiancy in Wright v. Wilson, 17 Mich. 192, 201 (decided in 1868). It was there said:
“But the principal object of this prohibition, we think, was to prevent a living party from obtaining an unequal advantage, from his own testimony, upon matters known only to himself and the deceased, or better known to them than to others, and of which the deceased party can, of course, no longer speak.”
This statement was quoted with approval in Downey v. Andrus, 43 Mich. 65, 71. While the word “assigns” did not then appear in the law, its later inclusion cannot well be said to affect its purpose as therein stated.
Statutes enacted for the same purpose have been construed in a similar manner in other States. In Wadsworth v. Heermans, 85 N. Y. 639, 641, it was said that:
“The spirit and purpose of this provision of the code (section 829) is equality, to prevent undue advantage; and that purpose should be kept in view when border questions arise and lines of distinction are to be drawn.”
In First Nat’l Bank v. Warner, 17 N. D. 76, 80 (114 N. W. 1085, 1086, 17 Ann. Cas. 213), it was said:
“The reason of the rule laid down in said section is to protect the estates of decedents from false testimony which attributes to a deceased party statements or acts concerning which he cannot testify by reason of his death. A transaction, as used in this section, means a transaction in which the decedent took part and was a party to and participated in.”
It has also been said that “To warrant the exclusion, the disqualification must clearly appear and not be a matter of inference. ” 1 Abbott’s Trial Evidence (4th Ed.), p. 114.
We have discovered no authority directly in point. The cases cited and relied on by defendant (Wallace v. Fraternal Mystic Circle, 127 Mich. 387; Great Camp K. O. T. M. v. Savage, 135 Mich. 459; Shepard v. Shepard, 164 Mich. 183; and Perfect Cleaners & Dyers v. Kirschbaum, 257 Mich. 430) all refer to statements made by deceased on which rights were sought to be founded. In this case no reliance is placed upon any such statement. That which is relied upon to prove that defendant refused to deliver the policy to the deceased is her answer to a question put to her by Edward. While made in the presence of the deceased, I can see no reason for the application of the statute to its admission. The deceased, while present, took no part in the conversation. Its purpose was to account for the failure of the deceased to forward the policy to the company with his request for a change of beneficiary.
The decree is affirmed, with costs to appellees.
Clark, Potter, North, Wiest, and Butzel, JJ., concurred with Sharpe, J. Fead, J., did not sit. | [
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Wiest, J.
May 7, 1929, about one o’clock in the afternoon, plaintiff’s automobile stalled upon defendant’s railroad track, at a street crossing in the city of Bay City, and, while she was trying to start the motor, a train came along, struck the automobile, and she received injuries. Defendant prosecutes an appeal from a judgment in favor of plaintiff, urging contributory negligence on the part of plaintiff as a matter of law. This opinion is based on the case presented by plaintiff.
At the point where the automobile stalled, there was a clear view of the railroad track for about a half mile. Plaintiff claims that she looked when her automobile stalled and there was no train in sight; that she then tried to start the motor, and when she looked again the train was so close that she had no time to get out of the automobile. The train must have traveled nearly a half mile between her first look and the second. The trainmen had an equal view, and, for the purposes of this decision, we may assume negligence on the part of defendant. This presents the question of plaintiff’s contributory negligence.
The declaration averred due care on plaintiff’s part and the duty of employees of defendant to have noticed her peril and have stopped the train. Due care required vigilance on the part of plaintiff while trying to start the motor. She knew she was in a place of danger if a train came along; she had time and opportunity to get to a place of safety, and, as long as she remained in the automobile, ordinary prudence required her to maintain such a watch as would enable her to escape. If the trainmen should have seen her peril she also should have sensed her peril, and availed herself of opportunity to avoid injury.
The court instructed the jury:
“I say to you it was her duty to look and see what was coming, if she could, and she claims she was there about a minute, and it was her duty to get that automobile off the railroad crossing, that was one of her paramount duties, to get it off the track, and it was her duty to do the things that were necessary, if. possible, to get it off before the train came, and under her claim she endeavored to start the motor, but something happened, and she could not start it until the train was almost on her, and then she claims she tried to get out, and she was injured, so I say, if she did that in that manner, stalled her motor there, it was her duty to do what she could reasonably to get it off, and if she did not continue to look up and down the track in her efforts to get the automobile off the track, that would not be contributory negligence, in itself, and she was doing what she was required to do to get it off the track. She was there just a short time.”
This instruction was error.
Defendant’s motion for a directed verdict on the ground “That plaintiff herself, as a matter of law, under the undisputed testimony, is guilty of contributory negligence, ’ ’ should have been granted.
Plaintiff planted her case on the negligence of defendant without any negligence on her part, and the doctrine of subsequent negligence was not an issue. See Kerns v. Lewis, 246 Mich. 423.
The judgment is reversed, with costs, and without a new trial.
• McDonald, C. J., and Clark, Potter, Sharpe, North, Fead, and Butjzel, JJ., concurred. | [
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Fead, J.
May 5, 1932, plaintiff, seven years old, was injured by defendant’s truck. For- about four years she had been living with and was supported by her great-aunt, Mrs. Mable Powell. Mrs. Powell took her because her mother, who lived in Alabama, had not cared for her properly..
A few days after the injury Mrs. Powell was solicited by one Bailey, a representative of J. C. Donohue, who conducts business under the name of the Michigan Accident Claims Company, to place the accident claim with Donohue. He told her suit would be commenced. ‘ He also said Donohue was a lawyer. The next day she signed papers in Donohue’s office, but their contents are not disclosed. Donohue’s brother is associated with him, and it was also represented to Mrs. Powell that he had been admitted to practice.
June 2d, suit was commenced by summons, with Roscoe C. Griffith as attorney for plaintiff, and Mrs. Powell as next friend. Declaration was filed June 14th, with notice that Griffith claimed lien for his services on settlement, recovery, or judgment. Mrs. Powell never talked with Griffith. The declaration was prepared by a stenographer in Donohue’s office, examined by Griffith, and then filed. It had no ad damnum clause, which indicates the character of Griffith’s employment and inspection. Griffith immediately executed blank substitution of attorney to be kept in Donohue’s files. It was executed in blank because Donohue had three or four attorneys who tried such cases for him, and he did not then know which would be chosen. Donohue, not the client, named the trial attorney. Griffith’s connection with the case ceased at this point. The procedure was routine, under which Griffith had handled a large number of cases for Donohue. Griffith did not try the cases he so commenced. In a few instances he presented a motion, sought appointment of guardian or administrator, or took consent judgment, but Donohue settled most of the cases himself, and Griffith merely took judgments for such amounts as Donohue told him. Griffith was paid each Saturday by Donohue for the work done during the week.
Appellant Tolonen, an attorney, tried many of Donohue’s cases, beginning late in 1930 or early in 1931. He claims he set his own fee, in all cases talked with the clients, and rejected some cases offered him because something put him on guard, but refused to give the-reason for the rejection, as privileged communication between attorney and client. He declined to say whether it was solicitation. He considered that both the party to the suit and Donohue were his clients. He relied on Donohue, at least morally, to see that his fee was paid. He had heard that Donohue had solicited personal injury claims, and he once represented Donohue in an action involving an alleged solicited claim. He was usually employed through a telephone call from Donohue’s office. In case of settlement or payment of judgment to him, he would take out his fee, obtain receipt from the client in full, and lay the balance on the table in Donohue’s office in the presence of both Donohue and the client. He assumed that Donohue was collecting fees in the cases he tried.
July 20th, on telephone call from Donohue’s office, appellant was employed to procure the appointment of Mrs. Powell as plaintiff’s guardian. The appointment was made September 14th. Appellant had not then been employed to try plaintiff’s case. He was engaged a few days later by Donohue’s brother, who informed him that $400 had been offered in settlement. Appellant negotiated a settlement for $600. September 21st he saw Mrs. Powell, and she approved the settlement. She asked his fees, and he said the court would set them. The next day the case came on for trial. The purpose was to take consent judgment on the basis of the compromise. Plaintiff being an infant, the court had the duty to investigate the fairness of the settlement. Appellant was a little late at the trial, and before he arrived Mrs. Powell had told the court that the claim had been solicited.
When appellant appeared, he presented substitution of attorney, signed by Griffith, dated the preceding day, and still blank as to name of attorney to be substituted. He received it from Donohue. The court notified the Detroit Bar Association of Mrs. Powell’s claim of solicitation, and Mr. George Brand, its representative, appeared as amicus curice. The court entered consent judgment for plaintiff for $600. Mrs. Powell filed motion for substitution of Charles J. DeLand as attorney for plaintiff in place of Roscoe C. Griffith, prayed that the court determine the amount due Griffith and appellant and the lien of either on the cause of action or judgment, and objected to allowance of lien or fees to either. October 3d, the court made an order substituting DeLand as attorney for plaintiff, subject to determination of appellant’s fees. Answers, supplemental motion, and affidavits were filed and testimony was taken. October 8th the court denied Griffith and appellant any fees or lien on the grounds that the claim had been solicited m violation of statute (Act No. 328, Pub. Acts 1931, § 410), and that Donohue was illegally practicing law through Griffith and appellant. The appeal is from disallowance of the fee.
Appellant has been so frank in his testimony and fair in his brief that we are prompted to give full credit to his claim of honest intent. He was not wholly Donohue’s servant, but maintained an attitude of ostensible independence and insisted upon personal contact with clients. It was not shown that he took any other solicited case. He knew, or had ample information to cause him to suspect, that Donohue solicited personal injury claims. But we think he might have refused a case if he actually had known Donohue had solicited the claim. Mrs. Powell did not inform him that the instant claim had been solicited, nor did he make inquiry of her. The issue is whether, although appellant felt he conducted himself with propriety, he mistook his duties as an attorney and may be denied a fee.
Was plaintiff’s claim for damages solicited by Donohue in violation of Act No. 328, Pub. Acts 1931, chap. 60, § 410:
“Any person, firm, copartnership, association, or corporation or any of the officers, agents, servants, or employees of any such, person, firm, copartnership, association, or corporation, who shall directly or indirectly, individually or by agent, servant, or employee, solicit any person injured as the result of an accident, his administrator, executor, heirs, or assigns, for the purpose of representing such person in making claim for damages or prosecuting any action or causes of action arising out of any personal injury claim against any other person, firm or corporation, shall be guilty of a misdemeanor, and any contract entered into as a result of such solicitation shall be void: Provided, however, That nothing herein shall affect an unsolicited contract entered into by any person, firm or corporation with an attorney duly admitted to practice law in this State.”
The act is constitutional. Kelley v. Judge of Recorder’s Court, 239 Mich. 204 (53 A. L. R. 273).
Appellant, invoking the rule of strict construction of penal statutes, contends the act does not apply, because Mrs. Powell, the person actually solicited, was not the person injured nor her administrator, executor, heir, or assign.
The rule of strict construction confines an offense to the words of the statute, but it permits the words not only to be read naturally but to be given a meaning in harmony with the purpose and intent of the law as far as may be done without distortion of language. Deloria v. Atkins, 158 Mich. 232, 241; People v. Gould, 237 Mich. 156, 163; 2 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 528 et seq.; 59 C. J. p. 1113 (§ 660).
The purpose of the act is to discourage the practice commonly known as “ambulance chasing.” The practice has developed recognized evils, the major of which are, (1) fomenting litigation with resultant burdens on the courts and public purse, (2) subornation of perjury, (3) mulcting of innocent persons by judgments, upon manufactured causes of action and perjured testimony, and by settlements to bny peace, and (4) defrauding of injured persons having proper causes of action, but ignorant of legal rights and court procedure, by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlements made for quick return of fees and against the just rights of the injured persons.
The words of the statute must be read in the light of the evil to be cured. With the purpose in mind, we cannot examine the statute from the viewpoint that it was not intended to cover solicitation of claims of injured infants who have no power to contract. The offense is solicitation for the forbidden purpose. We are not obliged to, nor should we, read into the act words which would add to the offense such elements as actual execution of an agreement, capacity of the injured person to contract or legal control of the party injured by the person solicited. Indirect approach is equally under condemnation of the statute as a frontal attack. The word “indirect” in the statute is not to be confined to intentional subterfuge but is to be given the fair meaning of including any circuitous means to reach the statutory person and obtain control of the claim.
Regardless of her legal status toward plaintiff, Mrs. Powell in fact had control of her person and cause of action. Solicitation of Mrs. Powell was at least indirect solicitation of the person injured, because it necessarily contemplated her arranging with plaintiff, as far as the latter was legally capable of arrangement, for Donohue handling the claim. Moreover, having become successful, by Mrs. Powell’s legal appointment to represent plaintiff and Donohue’s control of the claim, the solicitation operated upon the person injured within the scope of the statute.
The act applies, and the contract between Mrs. Powell and Donohne was void. Was appellant affected by the invalidity of his claim of fees?
Appellant contends Donohue had the right to handle unsolicited claims (Kelley v. Judge of Recorder’s Court, supra, 214), and that he, appellant, is not chargeable with violation of the statute by Donohue because he had no actual knowledge of solicitation. In the Kelley Case the court did not pass upon the general right of a layman to handle unsolicited personal injury claims. It merely said that unsolicited claims were not covered by the statute. Whether their control by a layman is in violation of public policy and the circumstances which would render such control lawful or unlawful are beside the issue here and must be left to a proper case. The .ease at bar came to appellant from Donohue, as had others. There is ample in the record, by way of former dealings and appellant’s information of Donohue’s practices and the character of his business, to have put a reasonable person on inquiry and charge him with knowledge that the claim had been solicited. But we do not rest decision on that ground.
The rights and duties arising out of the relationship of attorney and client are not measured by the yardstick of commercial or trade transactions. The relation is purely personal. The lawyer owes to his client undivided allegiance. There is no place in the relationship for its establishment by a middleman having an interest in the res or control of the procedure. The fact it is so established or initiated makes the attorney so far the agent of the middleman as to charge him with knowledge of all arrangements under which the middleman assumes to act. If the middleman acts under a void contract, the attorney can acquire no rights thereunder. Lien on the judgment was properly denied, because claimed under an illegal contract.
But appellant contends that he established the relationship of attorney and client by personal consultation with Mrs. Powell, and under it performed services in good faith, in ignorance that the claim had been solicited, and is entitled to recover the fair value of the work done, independently of lien.
An attorney employed by a middleman cannot close his eyes to the implications of the transaction, claim ignorance of its real character, and demand that his actual knowledge of irregularities be proved. Nor can his character as agent of a middleman be changed to that of independent attorney to his client by the mere sound of words used by the middleman in engaging him, by a colorable consultation with the client, or by going through the ritual of establishing a legitimate connection. As long as the attorney owes, or deems he owes, to the middleman any duty connected with the plaintiff’s case so that he cannot extend-undivided allegiance to the client, he remains agent of the middleman. If appellant, bona fide, had established with Mrs. Powell the relationship of attorney and client, wholly divorced from Donohue, the case would be different. But he did not. He considered Donohue as well as plaintiff his client in the case. He had a duty to Donohue to dispose of the money recovered, had he made recovery, in such a way as would enable Donohue to get his pay on the invalid contract. And with Griffith’s claim of lien before him, he made no such natural inquiry of Mrs. Powell.as whether Griffith had been paid or whether the lien was for the benefit of Donohue and represented compensation for a solicited claim. While appellant went through some of the forms of establishing the relationship of at torney and client with Mrs. Powell, the testimony does not indicate that, if she had told him Donohue had solicited the claim, he would have deemed himself so exclusively her attorney, free from obligation to Donohue, as to advise her that her contract with Donohue was void and she need pay nothing on the judgment thereunder. At most, he might have withdrawn from the case, but such action would have demonstrated superior allegiance to Donohue.
The burden of proof of right to fees for services is on the attorney claiming them. Boyle v. Waters, 206 Mich. 515; 6 C. J. p. 759. Appellant did not sustain the burden of proving an independent and bona fide relation of attorney and client with Mrs. Powell, freed from duty to Donohue and from the infirmities of Donohue’s position and contract.
Appellant urges that even though the contract be void, he is entitled to recover on the quantum meruit under McCurdy v. Dillon, 135 Mich. 678, where such recovery was allowed for services performed under a contract for compensation in a divorce suit, void as against public policy. No such recovery can be had at bar because the services were performed under a contract wholly, not partly, void, in violation of a criminal statute (Cashin v. Pliter, 168 Mich. 386 [Ann. Cas. 1913C, 697]), designed, among other purposes, to prevent champerty and maladministration of justice. Ingersoll v. Coal Creek Coal Co., 117 Tenn. 263 (98 S. W. 178, 9 L. R. A. [N. S.] 282, 119 Am. St. Rep. 1003, 10 Ann. Cas. 829); Gammons v. Johnson, 76 Minn. 76 (78 N. W. 1035); Gammons v. Gulbranson, 78 Minn. 21 (80 N. W. 779).
It is also contended that appellant is not entitled to fees because he was a party to the illegal practice of the law by Donohue, a layman. It probably would be difficult to find a plainer case of such, illegal practice.
In a case in court, determination of the steps to be taken and control of procedure and proceedings to enforce the remedy are exclusive functions of an attorney at law, where a party does not appear in his own person. 6 C. J. p. 643. Donohue exercised such functions as well as performing other acts which are usually done by the attorney. No more than an enumeration of his acts is necessary.
Personally, or by his lay agents, Donohue assumed to Mrs. Powell to be an attorney; consulted her to ascertain the cause of action; decided when and how suit should be commenced; started suit by summons; determined the form of action; prepared the declaration; attached claim of lien for Griffith’s services but for Donohue’s benefit; kept control of the action through substitution of attorney in blank; negotiated settlement; authorized plaintiff to take judgment; and, had the court not prevented, would have taken fees out of the judgment, as he had often done in other cases. In fine, Donohue performed all the functions of an attorney in the case except those which he was obliged to commit to a licensed lawyer. The case is much stronger than the following, held illegal practice of law: In re Otterness, 181 Minn. 254 (232 N. W. 318, 73 A. L. R. 1319); In re Eastern Idaho Loan & Trust Co., 49 Idaho, 280 (288 Pac. 157, 73 A. L. R. 1323); 73 A. L. R. 1319 et seq., and note, 1327.
That Griffith was merely Donohue’s employee is not disputed. While appellant attempted to preserve semblance of the proprieties, it would be a strain on credulity to doubt that he would have obeyed Donohue’s order to amend the declaration, seek adjournment, refuse the compromise and go to trial, or take other action, or, in the alternative, that he would have retired from the case. He received his authority to appear from Donohue, was accountable to him for the recovery, and could not but have recognized that Donohue was in charge.
Appellant’s representation of Donohue was not only a breach of professional ethics and standards, of. duty to the client, and in aid of violation of law, but was a fraud on the court, going directly to the integrity of the relationship between bench and bar and to the heart of the orderly administration of justice. To say that, although such misconduct may justify disbarment or contempt proceedings, the court must award compensation to an attorney for services tainted thereby would put the court in a position of approving or ignoring gross breach of duty to client and court. Something may be said in favor of denial of fees on the ground that plaintiff could not be forced to pay because appellant was not in fact her attorney. But we lay denial upon the broader ground that the judgment of the court will not be given in aid of or to encourage unprofessional conduct infringing the integrity of judicial proceedings. Ingersoll v. Coal Creek Coal Co., supra; Gammons v. Johnson, supra; Gammons v. Gulbranson, supra; Fetters v. Wittmer Oil & Gas Properties, 258 Mich. 310.
In fairness to both Griffith and appellant, it should be said that the briefs inform us that neither has had relations with Donohue since this controversy arose.
Judgment affirmed, with costs.
McDonald, O. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Clark, J.
On its former appearance here, this case, an action to recover damages for malpractice in setting and treating plaintiff’s broken leg, was reversed and new trial granted. See 258 Mich. 293, where facts are stated. It has been tried again. Plaintiff had verdict and judgment. Defendant has appealed. There must be reversal. As new trial is granted, we consider questions likely to arise again.
The former opinion held, in effect, an issue of fact. for the jury and granted new trial. On this record, not significantly different from the former record, there is, under the rule of law of the case and .independently thereof, an issue of fact in respect of defendant’s negligence. ■ The elements of negligence charged are:
“Failure to properly support plaintiff’s leg after the cast was applied.
“Failure to use traction aside from that furnished by the cast.
“Failure to take X-ray pictures.
“Advising plaintiff to bear some weight on the leg after the cast was removed.”
No evidence to make issue on the first element is urged by defendant.. When plaintiff regained consciousness after taking a general anaesthetic and after open surgical operation to reduce fracture, he found a plaster of Paris cast on his leg, which cast he testified was warm. Another witness testified that the warmth indicated chemical activity — the setting process going on in the cast — the cast was still green. Defendant adduced testimony that the cast was then sufficiently hard. A pillow was placed under the foot or heel, but, as plaintiff testified, there was no support under the leg. Plaintiff urges this to be malpractice and a probable cause of the bowed and imperfect condition of the leg. The conflicting testimony made an issue of fact as the trial judge correctly held. The remaining elements of negligence were clearly made issues for the jury by the positive and conflicting evidence, chiefly medical testimony, adduced by both sides and nothing will be gained by review thereof.
On this record, the verdict is not against the great weight of the evidence, nor is it excessive.
On cross-examination of one of defendant’s expert medical witnesses, both he and defendant being members of the State medical society, the following was permitted over objection: ■
“Q. You. belong to the State medical society?
“A. Yes.
“Q. What are the dues per year, doctor? * *
“A. I think $15; I am not sure. * * #
“Q. I will ask you this doctor: Is it not true that a certain proportion of your annual dues to the medical association go into the defense fund for cases, for the defense of cases like this?
“A. If I am not mistaken, I cannot be positive about it, I think a small portion of the dues go to the defense of malpractice suits for members.
“Q. And you contribute to that fund?
“A. Yes, that way; myself, I have no personal interest in that fund.
“Q. No, I mean it is part of your dues.
“A. Simply part of my dues.’’
For the purpose of affecting credibility of the witness, he may be cross-examined as to his interest in the event of suit, including contribution to the expense of it.
“Any relationship to one or more of the parties to the action of such a nature as to induce bias or prejudice, and which it may be said in fairness should be known to the jury, may be brought out,” — quoting from 5 Jones, Commentaries on Evidence (2d Ed.), p. 4617, citing Totten v. Burhans, 103 Mich. 6.
Some illustrative cases permitting’ cross-examination are: State v. Cerar, 60 Utah, 208 (207 Pac. 597), and Patterson v. Commonwealth, 139 Va. 589 (123 S. E. 657), a contribution to expense of suit; People v. Jo Fong, 59 Cal. App. 259 (210 Pac. 548), connection with the same Chinese tong; Styles v. Village of Decatur, 131 Mich. 443, interest as a taxpayer; Shoemaker v. Bryant L. & S. Co., 27 Wash. 637 (68 Pac. 380), interest as stockholder.
Permitting the cross-examination was not error. Cases involving the injecting of collateral matter designed to “advise the jury that the real defendant was an insurance company” (Holman v. Cole, 242 Mich. 402), are not in point.
A question arises upon cross-examination of one of defendant’s expert medical witnesses. The rule as stated in the former opinion is (258 Mich. 299):
“If a medical witness refers to a text-book as his authority, then the book referred to may be used to contradict him. Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Mich. 63; Hall v. Murdock, 114 Mich. 233; Foley v. Railway Co., 157 Mich. 67; Sykes v. Village of Portland, 193 Mich. 86; People v. McKernan, 236 Mich. 226.”
And syllabus of Sykes v. Village of Portland, supra:
“The trial court committed reversible error, on cross-examination of one of the medical experts of defendant, in permitting counsel, on interrogating the witness, to show what certain medical authorities claimed and that the question was differently answered by others, as the testimony tended to interject the opinions of persons who were not witnesses in opposition to the opinions of some of the witnesses of defendants, who were charged with negligently maintaining light wires.”
It is apparent counsel for plaintiff understood the rule. That the medical witness understood it fully is equally apparent. In lengthy and skilful cross-examination, counsel for plaintiff sought repeatedly to have the witness name some book, publication, or medical journal as entering into or forming a basis of his opinion, but the witness did not do it. Thus baffled, counsel for plaintiff asked questions, part of which we quote:
“Q. And isn’t it true that in the Medical Journal of Michigan, 1931, he (Tibbals) contributed an article in which he stated that X-rays were required both before and after the treatment of fractures! * * #
“Q. And isn’t it true that at those meetings and by their publications through its authorized officers, the State society has said that X-rays should be used both before and after the reduction of a fracture! * * *
“Q. Now Frederick Cotton acted, did he not, on a committee on fractures for the American College of Surgeons ?
“A. I think so.
“Q. Made a report to that society, of which you are a member, didn’t he!
“A. Yes, I think so.
“Q. And didn’t he in that report recommend that plates be used in open work treatment of fractures of the leg below the knee! ’ ’
Objections were sustained properly. The reason for the ruling is that the attempt is to discredit the testimony of the witness by “hearsay testimony of the written or spoken opinions of other persons, whom the jury have no means of examining as to their learning, their honesty, or their sources of special knowledge” (People v. Millard, supra, 75), which attempt can be justified on neither principle nor difficulty of cross-examination. Although objections were sustained, the effect of the cross-examination is an impression that the opinion of the witness is not in accord with eminent medical opinion or authority, and the jury, we think, must have been so impressed. Indeed that was the aim of the cross-examination. This is reversible error.
Reversed, with costs. New trial granted.
McDonald, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Clark, J.
Tbe bill prays foreclosure of a mecbanic’s lien and accounting. Tbe defendants are tbe owner and ber mortgagee. Tbe trial judge found no valid lien, and decree was entered accordingly. Tbe accounting feature of tbe bill was retained, and a certain sum found to be due plaintiff, principal contractor, from tbe owner, Margaret B. Fincb, wbieb was decreed to be paid. Defendant offered no testimony, tbe case being disposed of on motion at conclusion of plaintiff’s proof, and be bas appealed.
Plaintiff began erecting tbe dwelling bouse on or about June 1,1927. Mrs. Fincb moved into tbe bouse tbe following November. Sbe claims an agreement to build and complete tbe bouse for $8,500'. During tbe summer of 1927 plaintiff gave bér a writing stating that be agreed to build at a fixed profit of $700, estimated cost to include profit, $8,500. A small amount of repair work was done in fall of 1929. On January 2, 1930, plaintiff put some counter-flashing on the roof, total cost $1.75, $1 of which was for labor, which plaintiff, although otherwise indebted to his employee, was careful to pay him that day and by check. Within the statutory period of 60 days thereafter, plaintiff filed statement of lien, claiming $4,069.29. The trial judge was of the opinion that the furnishing of January 2, 1930, was not in good faith, not within the contract, but to gain ground for filing a statement of lien. Upon a review of the evidence, as stated, together with character of the work done and material furnished on January 2, 1930, the significant payment of the labor item, the lapse of time after the building was accepted by the owner, we are in accord with the conclusion of the trial judge that the statement of lien was not filed in time. 3 Comp. Laws 1929, § 13105.
Both sides request, as in the trial court, that the accounting feature be retained and accounting made. No question of jurisdiction; no question of joining accounting with statutory foreclosure of mechanic’s lien, is presented. We are not required to raise the points. Cummings v. Schreur, 236 Mich. 628.
The writing given by plaintiff as stated .does not fix a full contract price. It states rather an estimated price. We cannot find on this record a contract for a fixed price, nor should accounting be had on this incomplete record. The cause should be remanded that full accounting of the matter may be had.
Decree dismissing foreclosure bill is affirmed, and as to accounting reversed, and remanded, without costs.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred. | [
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Shepherd, J.
Following a bench trial, the Court of Claims entered a judgment of no cause of action on plaintiffs claims of negligent highway design, MCL 691.1402; MSA 3.996(102), and intentional nuisance. Plaintiff appeals as of right. We affirm.
Plaintiff was traveling northward on US-23 when her vehicle veered to the right onto the east shoulder. Plaintiff overadjusted the car leftward to the centerline. She then overcorrected to the right and struck the guardrail to the east of the highway. The car traveled along or possibly on top of the guardrail until it reached an opening where a private driveway intersected the highway. The car proceeded through the opening, struck one of numerous trees in the vicinity, and eventually came to rest at the bottom of a ditch or gully approximately 15 feet below the highway.
US-23 at the site of plaintiffs accident is a two-lane, paved, state trunk highway. The guardrail which plaintiff struck was located eight and one-half feet from the eastern edge of the northbound lane. It protected motorists from plunging down a steep embankment with a ”one:two” slope (a one- foot vertical drop for each two horizontal feet). The driveway opening in the guardrail was approximately 39 feet wide. Plaintiff hit a tree which stood 25 feet from the driveway and 16 feet from the highway.
In count I of her complaint, plaintiff claimed that she had been injured as a proximate result of defendant’s negligence. Plaintiff asserted that defendant breached its duty to maintain the highway in a reasonable, safe and fit manner in the following ways: allowing to remain and failing to remove a large tree located within 20 feet of the highway; failing to guard, protect, or give notice to traveling motorists of a 15-foot fill located at the base of an unprotected tree, and within 20 feet of the traveled highway; failing to guard, protect or give notice of a large tree within 20 feet of the highway; installing a guardrail in such a manner as to channel, funnel or direct an errant automobile into a fixed roadside obstacle, the tree; allowing the driveway to exist and building a guardrail with a gap of 39 feet. In count II, plaintiff claimed that, in breaching its duty as set forth in count I, defendant created and maintained an intentional nuisance in fact.
The trial court found that the placement of the guardrail was warranted by the steep slope off the eastern side of the road. Defendant was required to permit persons living along that portion of the highway access to the road by allowing the existence of a driveway and by creating an opening in the guardrail for a driveway. The trial court determined that there was insufficient evidence to justify a finding that plaintiff would not have been as severely injured if a barrier had been erected around the tree or if a barrier had been placed along the north edge of the driveway. The trial court further determined that the standards of the American Association of State Highway and Transportation Officials (aashto), see, 23 CFR 625 et seq., did not establish minimum safety standards for the placement of barriers, but were mere guidelines or "goals” for state highway departments. According to the trial court, strict compliance with the aashto standards was impractical in the instant case due to environmental and financial constraints. Moreover, the trial court found that defendant’s placement and maintenance of the guardrail were not contrary to the general principles set forth by aashto. the trial court concluded that defendant had not breached its duty to maintain US-23 in a reasonably safe condition.
In addition, the trial court found that defendant was not liable for maintenance of an intentional nuisance. The court noted that defendant had not negligently or improperly constructed the guardrail so as to purposely direct errant vehicles into the tree. The tree itself provided motorists with no greater hazard than would the placement of barriers around the tree or down the side of the highway.
Under MCL 691.1402, defendant may be held liable for failure to maintain a highway in reasonable repair:
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. * * * The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.”
This statutory duty is not limited to the paved portion of the road, but includes proper maintenance of the shoulder and adjacent guardrails. McKee v Dep’t of Transportation, 132 Mich App 714, 721; 349 NW2d 798 (1984); Moerman v Kalamazoo County Road Comm, 129 Mich App 584, 592; 341 NW2d 829 (1983); Hall v Dep’t of State Highways, 109 Mich App 592; 311 NW2d 813 (1981), lv den 413 Mich 942 (1982). It "extends to the maintenance of conditions that affect the safety of motorists using the improved portion of the highway designed for vehicular travel”. Moerman, supra, p 592. In Moerman, p 593, this Court held that whether the defendant had a duty to "maintain” a tree turned on whether "the tree was positioned such that the average vehicle could have struck the tree without any of the vehicle’s wheels leaving the shoulder”. (Emphasis added.)[ ]
In this case, plaintiffs automobile was out of control and had completely departed from the road when it struck the tree. The tree was not within reach of a vehicle with all four wheels on the shoulder. We must bear in mind the Legislature’s restriction of defendant’s duty "only to the improved portion of the highway designed for vehicular travel.” MCL 691.1402. The particular allegations of negligence which are based solely on defendant’s failure to remove or guard the tree do not, in our view, constitute a viable claim under MCL 691.1402. Additionally, we have reviewed the photographic exhibits admitted at trial. This was a country road lined by numerous trees and other vegetation. Defendant’s duty to maintain the road in reasonable repair does not entail deforestation of the surrounding countryside.
Plaintiffs remaining claims involve the design of the guardrail. More particularly, she asserts that the driveway opening was too wide and that the guardrail channeled her car into the unguarded tree. According to plaintiff, these deficiencies violated aashto standards which, again in her view, are mandatory and set the minimum standard of care in the field of highway maintenance. Plaintiff also claims that the existence of these conditions constituted an intentional nuisance. The trial court found for defendant on each of these claims.
"This Court does not set aside the trial court’s findings of fact unless they are clearly erroneous. GCR 1963, 517.1; Borkus v Michigan National Bank, 117 Mich App 662, 670; 324 NW2d 123 (1982). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976); Borkus, supra, p 670.” Sasanas v Manufacturers National Bank of Detroit, 130 Mich App 812, 817; 345 NW2d 621 (1983).
In this case, we find no clear error by the trial court.
Plaintiff argues that the gap in the guardrail was unreasonably wide. The owner of the abutting property has a right of access to the land itself from the highway. State Highway Comm v Sandberg, 383 Mich 144, 148-149; 174 NW2d 761 (1970). Under current law, the state has regulatory authority over such driveways, MCL 247.321 et seq.; MSA 9.140(21) et seq., but this authority does "not apply to driveways in existence on August 6, 1969”. MCL 247.327; MSA 9.140(27). The driveway in question existed prior to August 6, 1969. The state lacked authority to close the driveway completely with a guardrail. The issue is whether the opening was unreasonably large.
A supervisory design engineer employed by defendant testified that driveway openings should be as narrow as is "practical”, given the angle of the driveway and the size and speed of vehicles which are used to enter it. The driveway in this case ran parallel to the highway until it approached the intersection, where there was a sharp curve. This necessitated a wider than normal opening to permit safe entry. In the witness’s opinion, the gap was not unreasonably wide. Another expert witness agreed with this analysis. It is noteworthy that plaintiff’s expert witness testifed that the driveway was difficult to enter even in its present state.
Plaintiff urges that defendant is liable because the driveway opening directed her vehicle into the tree. According to plaintiff, if one could not reasonably expect defendant to narrow the opening, defendant could have prevented her injuries by placing a barrier between the opening and the tree, or around the tree itself. We are not left with a definite and firm conviction that the Court of Claims erred by rejecting this view of the evidence. There was expert testimony that, given the velocity of plaintiff’s vehicle and the steep decline, an abrupt collision with a barrier would have been just as injurious to her or more so. Furthermore, we perceive once again in this argument a not so subtle effort to stretch defendant’s duty to a point beyond that contemplated by the Legislature. MCL 691.1402. Defendant did not act negligently by creating the opening. We cannot say that by doing so it shouldered responsibility for every tree within range of a vehicle careening through that opening.
Plaintiff argues that the aashto standards are mandatory and signify the minimum standard of care in highway design. We disagree. The standards are goals utilized by governmental agencies. They "are intended as guidelines for those reponsible for the design, installation, and maintenance of traffic barriers”. 23 CFR 625.3(20), I-C (emphasis in original):
"* * * It is recognized that limited budgets may preclude the full implementation of these guidelines. In those cases, a priority system should be established to insure that cost-effective alternatives are employed.
"The guide relates primarily to the protective aspects of traffic barriers. These guidelines must be considered together with social, environmental, and economic factors.
"Due to the complex nature of the subject matter, many of the criteria contained in this guide are by necessity based on subjective data. In some areas, only general suggestions and recommendations can be made. It can therefore not be overemphasized that application of these guidelines must be made in conjunction with sound evaluation of the facts and engineering judgment to effect the proper solution.” Id. (Emphasis in original.)
Even if the standards were mandatory, we would reject plaintiffs contention that violations of the standards constitute negligence as a matter of law. In this state, violations of statutes, rules and regulations are evidence of negligence and establish a prima facie case, "with the determination to be made by the finder of fact whether the party accused of violating the statute has estab lished a legally sufficient excuse”. Zeni v Anderson, 397 Mich 117, 143; 243 NW2d 270 (1976); Beals v Walker, 416 Mich 469, 481; 331 NW2d 700 (1982).
The Court of Claims found that defendant complied with the standards. The court took note of the various budgetary, environmental and safety considerations. In addition, the court found itself unable to conclude that plaintiff would have fared better even if defendant had acted according to the strict letter of the aashto guidelines, without regard to the other relevant factors. These findings are not clearly erroneous.
Finally, plaintiff seeks to revive her intentional nuisance claim. Plaintiff argues that "defendant’s conduct was intentional in that it intended to build the guardrail where and as it did”, and defendant "knew or should have known what would eventually occur”.
A nuisance is predicated upon the existence of a dangerous condition. Rosario v City of Lansing, 403 Mich 124, 132; 268 NW2d 230 (1978) (opinion of Fitzgerald, J.). A nuisance in fact becomes a nuisance "by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property”. Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959).
Although no clear majority view emerged from the Supreme Court on when governmental immunity bars a nuisance claim in Rosario, supra, and its companion case, Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978), a majority of the justices agreed that a claim of intentional nuisance in fact was not barred. Court of Appeals cases decided after Rosario and Gerze ski have held that nuisances in fact must be intentional to avoid immunity. See Martin v Michigan, 129 Mich App 100, 109; 341 NW2d 239 (1983); Crosby v Detroit, 123 Mich App 213, 221-222; 333 NW2d 557 (1983); Ford v Detroit, 91 Mich App 333, 335-336; 283 NW2d 739 (1979). To find intentional nuisance, the evidence must show that "the governmental agency intended to bring about the conditions which are in fact found to be a nuisance”. Rosario, supra, p 142 (opinion of Moody, J.).
When a nuisance in fact is alleged, the trier of fact must first determine whether the condition or act creates a nuisance. If the trier of fact finds the existence of a nuisance in fact, it must then determine whether the nuisance was created intentionally. The plaintiff’s claim avoids governmental immunity only if the trier of fact finds both the nuisance and the intent. Rosario, supra, p 142.
In the present case, the trial court sitting as the trier of fact found that defendant had not created a nuisance in the construction or design of the guardrail, or by not placing barriers around the tree or down the side of the driveway. We conclude that the findings of fact by the trial court are not clearly erroneous. MCR 2.613(C). Moreover, we note that if defendant was not negligent in placing or designing the guardrail and defendant had no statutory duty to remove or guard the tree, as a matter of law a nuisance could not arise from these same facts. In light of our conclusion that there was no nuisnace, it is unnecessary to address whether the alleged nuisance was intentional. Furthermore, the Supreme Court did not address the issue of whether governmental immunity barred a nuisance claim in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 657; 363 NW2d 641 (1984) , and in light of our finding that there was no nuisance, we also find it unnecessary to address the issue.
Affirmed.
R. B. Burns, P.J., concurred.
The Moerman panel reversed its original ruling on rehearing, but for reasons which had nothing to do with its approach to the scope of the agency’s duty. 141 Mich App 154; 366 NW2d 223 (1984). The panel adopted Judge Walsh’s dissent to its original opinion. Judge Walsh’s dissent contained nothing inconsistent with the rule we adopt herein. See, 129 Mich App 601. Ultimately, a judgment for the defendant road commission was affirmed. 141 Mich App 155. | [
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Per Curiam.
Defendant pled guilty to one count of larceny in a building, MCL 750.360; MSA 28.592. He was sentenced to four years’ probation, the first year to be spent in jail with 59 days’ credit given for time already served. Defendant was also ordered to pay over the period of probation $300 in costs and restitution in the amount of $290 to Mr. Mulvaney of the Montgomery Ward Store which was the subject of the instant charge and $5,409.25 to Mr. King of the Kobas Electric Store, which was the location of another burglary in which defendant was implicated but never charged.
Defendant contends that the trial court erred in failing to make the mandated statutory inquiry as to whether defendant was or would be able to pay the restitution during probation. After reviewing the record, we agree. Because such an inquiry is mandated by statute, People v Gleason, 139 Mich App 445, 448; 363 NW2d 3 (1984), we vacate the restitution provision in the probation order and remand this cause to the sentencing court for a determination of defendant’s ability to pay restitution in accordance with MCL 771.3(5); MSA 28.1133(5). See also People v Blaney, 139 Mich App 694, 695; 363 NW2d 13 (1984).
At oral argument, defendant also contended that he can be ordered to pay restitution only to Mr. Mulvaney of Montgomery Ward, as that was the only offense to which he pled guilty and was convicted. Defendant is correct. The record reveals that he was éharged only with larceny in a building at Montgomery Ward and the factual basis for his plea concerned only that incident. Restitution can be imposed constitutionally only for a loss caused by the very offense of which the defendant was convicted. People v Becker, 349 Mich 476, 486; 84 NW2d 833 (1957); People v Blaney, supra. Therefore, the amount of restitution is reduced to $290 to be paid to Mr. Mulvaney.
Remanded for proceedings consistent with this opinion. | [
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N. J. Kaufman, J.
Petitioner appeals as of right from an August 3, 1984, order of Oakland County Probate Court Judge Eugene Moore denying his petition to set aside a previous court order terminating the rights of the petitioner as father of a minor child. Petitioner in this case is the putative father but had denied paternity of the minor child on two previous occasions.
Petitioner, Kenneth Mumaw, and Lois Koroly were involved in a relationship which lasted about a year, until approximately October, 1983. Both acknowledged that the relationship included sexual intercourse. In late August or early September, 1983, Miss Koroly informed petitioner that she was pregnant. He maintains that at that time she told him that he was not the father but that another man, Bill Hovey, was. Miss Koroly stated that she told petitioner that she was pregnant and that he was the father but that he denied it. She did, however, admit that she had told others, but not petitioner, that there was a possibility that Bill Hovey was indeed the father.
After learning of Miss Koroly’s pregnancy, petitioner told her that he did not want anything to do with the child, and after that he made no attempt to contact her and find out why she was naming him as the father. A friend of Miss Koroly’s, llene Droste, stated that Lois Koroly told her that petitioner was the father.
Miss Koroly contacted appellee, Jewish Family Services, in December, 1983, about giving up her child for adoption. From the beginning, she told them that petitioner was the father of her unborn child. When contacted by Jewish Family Services, petitioner was quite cooperative, and on May 3, 1984, he went to the office and signed a disclaimer of paternity. He knew at that time that Miss Koroly had named him as the father, but he did not believe that he was and testified: "so I freely signed the statement that said I was not the father from that’s what I knew.”
Miss Koroly’s child, Lynda, was born May 4, 1984. Petitioner signed a second disclaimer of paternity on June 11, 1984. This form was entitled "Denial of Interest in Custody of Child by a Putative Father”, and petitioner checked the box stating, "I am not the father of the child”, as opposed to the box stating, "I am or may be the father of the child and deny any interest in the custody of the child”. The next day, Judge Moore signed an order terminating petitioner’s rights to the baby, based on petitioner’s filing of a disclaimer of paternity.
On June 15, 1984, petitioner and Teresa Ann Mumaw were married. When they began dating in September, 1983, petitioner told her that Miss Koroly was pregnant but that it was not his child. According to petitioner, his brother informed him at the wedding reception that petitioner was indeed the father of Lois Koroly’s baby. When petitioner returned from his honeymoon, he called Jewish Family Services and also wrote a letter to the probate court, received June 29, 1984, requesting that the case be reopened.
On August 3, 1984, a rehearing was held on the termination of petitioner’s rights to the baby, during which petitioner, Lois Koroly and others testified. The propriety of the probate judge’s denial of the petition to set aside the termination order after that rehearing is the subject of this appeal.
The Michigan Adoption Code provides for rehearings as follows:
"(1) Upon the filing of a petition in probate court within 20 days after entry of any order under this chapter, and after due notice to all interested parties, the judge of probate may grant a rehearing and may modify or set aside the order.” MCL 710.64; MSA 27.3178(555.64).
The probate judge found that petitioner had filed his request for rehearing within 20 days as required by the statute, but the judge noted that the adoption statute does not spell out under what circumstances a court shoud modify its previous order. The probate judge, therefore, turned to the Juvenile Court Rules and relied on the provisions for rehearings spelled out in Rule 9:
"Petition. The Court may grant a petition for rehear ing, filed in writing while the child is under the jurisdiction of the court. MCL 712A.21; MSA 27.3178(598.21). A petition for rehearing will ordinarily not be considered unless it presents a matter not previously presented to the court which, if true, would cause the court to reconsider the disposition.” JCR 1969, 9.3 (now MCR 5.909[C]).
The court interpreted this to mean that the petitioner must show that there has been a change of circumstances or that a material fact is different such that, had the court known, it would not have signed the order in the first place. The court went on to find that petitioner had demonstrated no fraud, no misrepresentation, and no reasonable basis for believing that he was not the father of the child:
"A reasonable person here under all these circumstances would have done everything possible to find out whether he was or was not the father, if he had a genuine interest in this child.”
The judge concluded that "the mere changing of mind” subsequent to signing the document was not sufficient under the statute for the court to set aside its previous order.
On appeal, petitioner urges this Court to find that the probate court abused its discretion in applying the Juvenile Court Rules and in refusing to recognize petitioner’s change of mind as a sufficient reason to rescind an order.
Petitioner suggests that the proper court rule to follow was not JCR 1969, 9.3, but rather PCR 755 (now MCR 5.755), which provides:
"The court may grant a rehearing under MCL 710.64(1); MSA 27.3178(555.64[1]), only for good cause.”
Since this rule specifically incorporates the statute providing for rehearings under the Michigan Adoption Code, we agree with petitioner that this is the proper standard to apply in these cases. However, under either standard, we cannot say that the probate court abused its discretion.
Based on the policy of finality in decisions relating to adoption, courts are reluctant to reverse the probate court’s order unless there has been a clear abuse of discretion. In the Matter of Kenneth Jackson, Jr, 115 Mich App 40, 55; 320 NW2d 285 (1982). Petitioner suggests that the probate court failed to recognize that its discretion could extend to granting a rehearing based on petitioner’s change of mind. The court did grant a rehearing, but it properly determined that petitioner’s change of mind was not a sufficient reason for the court to set aside its previous order. Although the statute recognizes the possibility that a release may be revoked, the Legislature did not thereby intend to bestow such a remedy as a matter of right on natural parents who have a "change of heart”. DeBoer v Child & Family Services of Michigan, Inc, 76 Mich App 641, 645; 257 NW2d 200 (1977). Instead, the whole matter is vested in the sound discretion of the probate judge before whom the matter is raised. Id., p 646. The judge in his discretion determined that petitioner’s abrupt change of mind after signing two denials of paternity was not a sufficient reason for the court to revoke its order terminating petitioner’s rights to the child. This was not an abuse of discretion.
Petitioner and his new wife were both 18 and living with her parents at the time of the rehearing. Petitioner apparently attempted to convince the court that, although he knew Lois Koroly had named him as the father on the release forms, it was not until his brother told him that Lois claimed he was the father that he decided that he was the father. We wonder what petitioner’s response would be if a blood test were subsequently done on the child which determined that petitioner was not her biological father. Would he have another change of mind? As far as we know, petitioner has never definitively stated that he is the father of the child. Cf., In the Matter of Robert P, 36 Mich App 497; 194 NW2d 18 (1971).
Petitioner also argues that the judge erred by not taking into account the best interests of the child. The Supreme Court has ruled it proper for a trial court to look to the factors on the best interests of the child in evaluating cases arising under § 39(1) of the Adoption Code. In the Matter of Baby Boy Barlow, 404 Mich 216, 236; 273 NW2d 35 (1978). However, § 39 specifically authorizes the court to determine whether the best interests of the child would be served by granting custody to the putative father seeking custody. In a rehearing under §64 sought by one who has previously denied paternity, we cannot say that a probate court errs in failing to articulate on the record its application of the factors evaluating the best interests of the child.
Nor was the probate court’s decision flawed by petitioner’s lack of counsel when he signed the two earlier documents denying paternity. This Court has determined that the right to counsel does not extend to releases for adoption, which are voluntary in nature. In re Jackson, supra, p 51. A release for adoption may be rendered void if it is shown that it was involuntarily executed. MCL 710.29(5); MSA 27.3178(555.29X5). However, in this case, petitioner admitted that he freely signed both documents, and, in fact, he testified that he had consulted with an attorney before he signed them.
This is a difficult case, but we are in no position to say that the probate court abused its discretion in refusing to revoke its order terminating petitioner’s rights.
Affirmed.
Mackenzie, J., concurred. | [
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R. B. Burns, J.
On February 16, 1984, defendant Commissioner of the Michigan Financial Institutions Bureau (Commissioner) issued an order allowing defendant Three Rivers Savings & Loan Association (Three Rivers) to purchase an insurance agency through a wholly-owned service corporation. Plaintiff Independent Insurance Agents of Michigan (HAM) filed suit against defendants, claiming the Commissioner’s order was unlawful and seeking to prevent the approval and acquisition from taking effect.
At the May 16, 1984, hearing before the circuit court, plaintiff argued that the Commissioner’s determination that Three Rivers’ service corporation should be authorized to purchase the insurance agency was a "rule” as defined in § 7 of the Administrative Procedures Act and, therefore, that it required promulgation via the rule-making pro cedures set forth in the act. The trial court based its decision to set aside the Commissioner’s order and enjoin the purchase exclusively on its acceptance of plaintiffs argument and found that "because general policy was being established”, the order was "a rule in reality” and consequently "invalid since it was not properly promulgated”. Defendants appeal. We affirm.
Defendant Three Rivers is a state-chartered savings and loan association organized under the Michigan Savings and Loan Act of 1980, MCL 491.102 et seq.; MSA 23.602(102) et seq.
Section 714 of the Savings and Loan Act, MCL 491.714; MSA 23.602(714), provides:
"An investment by an association in a service corporation shall not exceed 3% of the association’s total assets and shall be subject to limitations and approvals established by rules promulgated by the supervisor.”
Section 156 of the act, MCL 491.156; MSA 23.602(156), states:
" 'Supervisor’ means the commissioner of the financial institutions bureau of the department of commerce, or other officer designated by law to administer this act.”
Section 150 of the act, MCL 491.150; MSA 23.602(150), defines "service corporation” as:
"a corporation organized under the laws of a state which engages in activities determined by the supervisor by order or rule to be incidental to the conduct of a savings and loan business as provided in this act or activities which further or facilitate the corporate purposes of an association, or which furnishes services to an association or subsidiaries of an association, the voting stock of which is owned directly or indirectly by 1 or more associations or federal associations.”
In its application to the Commissioner for permission to invest in a service corporation, Three Rivers proposed the creation of a wholly-owned service corporation, Alpha-Financial, Inc. This service corporation would acquire the Hackenberger-Schreiber Insurance Agency and through it sell fire, casualty, life, workers’ compensation, and other types of personal and business insurance. The question before the Commissioner was whether, pursuant to § 150, an incorporated insurance agency, specifically the Hackenberger-Schreiber agency, is a service corporation.
Generally, under the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., an agency must establish its standards of conduct, policies, and procedures by one of two methods: rule making or adjudication of contested cases. The choice of method is critical. If adjudication is elected, the agency must follow the "contested cases” provisions of chapter 4 of the act, including holding a quasi-judicial hearing. If, on the other hand, "rule making” is elected, the agency must follow the provisions in chapter 3 governing the promulgation of rules, including notice, hearings, and publication. In the present case, plaintiff essentially argues that, since the Commissioner’s order was policy-based, it must be classified as a "rule”. Both defendants acknowledge the policy-making aspects of the Commissioner’s order, but urge this Court to recognize its previous decisions holding that policy may be set through either the rule-making or adjudicatory processes. Defendants’ argument is correct in principle but not on these facts, since the policy set by the Commissioner in this case was not the result of adjudication; no contested case hearing was conducted.
Section 7 of the Administrative Procedures Act, MCL 24.207; MSA 3.560(107), defines "a rule” as:
"* * * an agency regulation, statement, standard, policy, ruling or instruction of general applicability, which implements or applies law enforced or administered by the agency, or which prescribes the organization, procedure or practice of the agency, including the amendment, suspension or rescission thereof, but does not include the following:
* * *
"(i) A declaratory ruling or other disposition of a particular matter as applied to a specific set of facts involved.” (Emphasis added.)
In his six-part, 13-page order approving Three Rivers application, the Commissioner stated:
"Inasmuch as this is an issue of first impression, it must first be determined by the commissioner, as a separate issue, whether insurance agency activities fit within the criteria of section 150 of the act. If determined, by rule or order, that a corporation engages in activities incidental to the conduct of a savings and loan business, or which further or facilitate the corporate purposes of an association; or which furnish services to an association or its subsidiaries, the association may then seek permission to invest in it as a service corporation pursuant to the statute and applicable rules.”
The Commissioner’s analysis sets forth extensive background discussion, including discussion of the insurance activities of state chartered savings and loan associations, and considers whether insurance activities further or facilitate the corporate purposes of a savings and loan association, and discusses relevant consumer issues. Eventually, the Commissioner opined that, under certain conditions, engaging in an insurance agency business is an activity which will further or facilitate the corporate purposes of an association before finally deciding that Three Rivers should be allowed to invest funds in a service corporation engaging in insurance agency activities.
The Commissioner’s order does state that he "reserves the right to limit the precedent value that may attach to this order to the discussion of the issues set forth. Furthermore, it is intended that future applications of this type will be subject to similar analysis of the specific circumstances involved”. However, as the trial court noted, it is unlikely that in another application the Commissioner would find that selling insurance through a service corporation would not further or facilitate the corporate purposes of the savings and loan association, in light of his discussion in the order in question.
Accordingly, we find that the Commissioner’s order in this case is a policy, ruling or instruction of general applicability and, thus, not an exception to the rule requirements of the Administrative Procedures Act.
Affirmed. | [
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Per Curiam.
On August 29, 1983, the Michigan Tax Tribunal adopted the findings of fact and conclusions of law reached by its hearing officer as its own. MCL 205.726; MSA 7.650(26). Thus, the Tax Tribunal found that the petitioner herein, Noel G. Peterson, was an officer of the now defunct Bay Side Door, Inc., a Michigan corporation, and, as such, he supervised the corporation’s making of returns and payment of taxes due for the period between January 1, 1978, and December 31, 1979. Accordingly, the tribunal held that petitioner was personally responsible for Bay Side Door’s failure to pay the taxes due to the state pursuant to MCL 205.65(2); MSA 7.536(2). From this decision, petitioner appeals as of right. MCL 205.753(1); MSA 7.650(53X1).
The sole issue raised by petitioner on appeal is whether the Tax Tribunal’s decision is supported by competent, material, and substantial evidence on the whole record vis-á-vis MCL 205.65(2); MSA 7.536(2). See Const 1963, art 6, §28; MCL 24.306(l)(d); MSA 3.560(206)(l)(d).
The Bay Side Door, located on Bay Road in Saginaw, was owned by John Bommarito. Before April of 1978, it housed two bars, a restaurant and a banquet hall. In April, 1978, the two bars, restaurant and banquet hall were closed. Petitioner reopened part of the building in April, 1978, and started to manage a new bar known as Noel’s Place under the corporation’s liquor license. John Bommarito filed an assumed name certificate for Noel’s Place. Petitioner was managing Noel’s Place with the intention of purchasing Bay Side Door, Inc., at a later time. He planned to lease the space inside the Bay Side Door building until he acquired Bay Side Door’s liquor license and then he planned to purchase the business and equipment.
In his capacity as manager, petitioner "took care of the day-to-day operations and buying — buying the products and seeing the place was clean and the bill paying and what have you”. Bay Side Door, Inc., owned the tables and chairs inside Noel’s Place and Noel’s Place operated under Bay Side Door’s liquor license.
Petitioner did not receive any payment for his services and actually put money into the business with an eye toward purchasing it as a going concern.
In October of 1978, an agreement between petitioner and John Bommarito was executed whereby petitioner agreed to purchase 49 percent of the stock of Bay Side Door, Inc., conditioned upon the Liquor Control Commission’s approval and "upon terms and conditions to be agreed to”. Also, on that date, petitioner was formally appointed as an officer of the corporation. Afterwards, petitioner continued to perform the day-to-day activities of managing Noel’s Place. Later, other business operations were set up inside Bay Side Door’s building. However, petitioner did not take on any new responsibilities with respect to Bay Side Door’s other operations outside of managing Noel’s Place. The new operations were each separately managed, but only Bay Side Door, Inc., filed any tax returns. The managers of these separate businesses were responsible for providing Bay Side Door, Inc., with any financial information they had concerning their respective business ventures.
Starting in January, 1979, petitioner began to sign Bay Side Door’s tax returns. The first return represented the tax record for December, 1978. Thereafter, petitioner signed the tax forms as either "manager”, "agent”, or "vice president” of the corporation for January, 1979, through September, 1979. Likewise, petitioner signed the corporation’s amended tax returns for January through June of 1979. Furthermore, petitioner testified that either he or the corporation’s bookkeeper, Linda Cook, forwarded the tax payments to the state during the period of January, 1979, through September, 1979. He also testified, and the Tax Tribunal found, that petitioner abandoned his efforts in Bay Side Door, Inc., in December, 1979.
Petitioner was never advised about the possible ramifications of his signing the tax returns as an officer of the corporation. He explained that during his tenure with Bay Side Door everything was in total chaos, mostly due to the owner’s pending divorce proceedings. Finally, in November, 1979, petitioner realized that he would never fulfill his dream of owning Bay Side Door, Inc., and this is why in December, 1979, petitioner left the business.
Based upon these facts, the Tax Tribunal held that petitioner was responsible for the sales tax liability of the corporation from January 1, 1978, through December 31, 1979.
We begin our analysis by stating the correct standard of review. The Attorney General informs the Court that it is bound by the factual determinations of the Tax Tribunal absent fraud, error of law or the adoption of a wrong principle. This is incorrect. This case involves the application of the sales tax, not the valuation or allocation of the property tax. Therefore, the correct standard of review is outlined in Const 1963, art 6, § 28 and in MCL 205.753(1); MSA 7.650(53X1). We thus review the Tax Tribunal’s decision to determine whether it is authorized by law and whether it is supported by competent, material, and substantial evidence on the whole record. See and compare MCI Telecommunications Corp v Dep’t of Treasury, 136 Mich App 28, 30; 355 NW2d 627 (1984).
The statute applied against petitioner is MCL 205.65(2); MSA 7.536(2), which provides as follows:
"If a corporation licensed under this act fails for any reason to file the required returns or to pay the tax due, any of its officers having control, or supervision of, or charged with the responsibility for making such returns and payments shall be personally liable for such failure. The dissolution of a corporation shall not discharge an officer’s liability for a prior failure of the corporation to make a return or remit the tax due. The sum due for such a liability may be assessed and collected * * *.”
In order to hold a person personally liable for a corporation’s tax liability under this statute, the Department of Treasury must first show that the person is an officer of the corporation. Then it must show either (1) that this officer has control over the making of the corporation’s tax returns and payments of taxes; or (2) that this officer supervises the making of the corporation’s tax returns and payments of taxes; or (3) that this officer is charged with the responsibility for making the corporation’s returns and payments of taxes to the state.
In this case, the department was able to show that petitioner was an officer of Bay Side Door, Inc., effective October 28, 1978. This conclusion was supported by the minutes of the corporation and by petitioner’s own admissions. Thus, we hold that the Tax Tribunal’s decision under this first statutory criterion is supported by competent, material, and substantial evidence on the whole record.
Next, the department effectively showed that petitioner either controlled, supervised or was charged with the responsibility for making the corporation’s tax returns and tax payments from December, 1978, through December, 1979. This conclusion was supported by evidence which indicated that petitioner signed the corporation’s tax returns for this period of time and from petitioner’s own admissions that either he or Linda Cook forwarded the taxes to the state. Thus, we hold that the Tax Tribunal’s decision under the second statutory criterion, with respect to this period of time, is supported by competent material, and substantial evidence on the whole record.
However, the record does not support a conclusion that petitioner was both an officer and respon sible for the corporation’s making of returns and payments of taxes during any period other than December, 1978, through December, 1979. Therefore, petitioner is only personally responsible for the corporation’s sales tax liability actually incurred during December, 1978, through December, 1979. It is unclear from the Tax Tribunal’s decision whether this is the period to which petitioner’s personal liability was limited. Accordingly, we remand this matter to the Tax Tribunal to calculate petitioner’s share of Bay Side Door’s sales tax liability consistent with this opinion. We do not retain jurisdiction.
Affirmed in part and remanded.
On June 5,1981, the Department of Treasury issued two notices of final assessments to petitioner. These assessments held petitioner personally liable for the corporation’s withholding tax ($6,877 plus interest and penalties) and the corporation’s sales tax ($22,119 plus interest and penalties) for the taxable period of January, 1978, through September, 1980. The Tax Tribunal reversed the withholding tax assessment and affirmed the sales tax assessment. However, there is language in the Tax Tribunal’s decision indicating that "the subject assessments * * * cover the taxable period of October, 1978 through December 1979”. This remand is therefore necessary to clarify that petitioner’s share of the corporation’s sales tax liability is limited to the taxable period of December, 1978, through December, 1979. | [
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Clark, J.
Plaintiffs sued to recover instalments due on a land contract, and had summary judgment, from which defendant has appealed. The interest of plaintiffs is questioned. The declaration is that plaintiffs, who, with Euphemia Rennie, signed the contract as vendors, have succeeded to the interest of Mrs. Rennie, now deceased, hy order of assignment of the probate court. An affidavit contains a like recital. In one instance plaintiffs’ interest is stated to be by inheritance. But, on the-record, this statement creates no issue, and it is here construed as meaning the same as the averment of the declaration.
Citing Dirr v. Hitchman, 260 Mich. 179, defendant contends that past-due instalments of the contract may not be recovered, as plaintiffs are in default in making payments on the mortgage of $8,000. Defendant purchased and took deed of an undivided one-fourth of the property, and in that connection assumed and agreed to pay one-fourth of the mortgage debt. The land contract for the undivided three-fourths was made on December 13,1927. It is subsequent to the mortgage. The purchase price named in the land contract is $15,000, with $2,000 paid down, and remainder in monthly instalments of $130 each. Between June 12, 1930, and time of commencing suit, January 7, 1932, instalments accrued in the total of $2,440, for recovery of which this suit is brought. If this sum were paid, the remainder to become due on the contract would be largely in excess of the amount of the mortgage. The mortgagee is willing to extend time for an additional period of three years upon partial payment, the amount of which is less than the total of sums past due and owed by defendant on the contract. Defendant has not paid his portion of the mortgage debt. The contract permits him to make payments direct to mortgagee in event of plaintiffs’ failure to pay.
On the facts as stated, and as the record is that defendant purchaser is responsible for failure- of plaintiffs in respect of the mortgage, the fact of mortgage is no defense to this action for purchase money. The case is not ruled by Dirr v. Hitchman, supra, but in principle by Langley v. Kirker, 247 Mich. 443, and Heath v. Gloster, 260 Mich. 85. See 39 Cyc. p. 1931. We find no error in ordering summary judgment.
Affirmed.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Btjtzel, JJ., concurred. | [
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Clark, J.
In April, 1928, the parties were divorced, and the custody of their two children awarded to plaintiff, the mother. In May of 1928, because of conditions of the mother’s home, the children were taken by probate court, juvenile division, as neglected children, and were placed in the home of a Mrs. Burts. Later the defendant and Mrs. Burts were married. The circuit court resumed jurisdiction of the children, and custody was given to the father. In September, 1931, plaintiff sought modification of decree so that she might have the custody, the children being 11 and 8 years, respectively. The petition was denied, and she has appealed.
Report of the prosecuting attorney recommends continuing in defendant the custody of the children. And this also appears to be the recommendation of the county agent. There is testimony on both sides to aid in finding the welfare of the children, which is of first consideration. Thomas v. Thomas, 247 Mich. 487. Nothing will be gained by further detail of facts of this misfortune.
On full consideration, we are in accord with the trial court.
Affirmed, and remanded. No costs.
McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Bijtzel, JJ., concurred. | [
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North, J.
Plaintiffs by their bill of complaint sought in the circuit court to have set aside and held for naught their default and a judgment against them entered in a case at law wherein the defendant savings bank was plaintiff and plaintiffs herein were defendants. The relief sought was denied, and from the decree dismissing plaintiffs’ bill of complaint they have appealed.
It is claimed by the defendant bank that plaintiffs herein as defendants in the law case were each served with a copy of the declaration and rule to plead. Service of the declaration upon him is admitted by Edward Karasek; but he claims to have been misled and deceived, shortly after service upon him, by the attorney who represented the plaintiff in the law case, and that in consequence of such deception, he, Karasek, paid no attention to. the service made upon him. In substance, and as stated in appellants’ brief, it is Karasek’s claim that the attorney for the plaintiff in the law case, after hearing Karasek’s contention as to the matter involved, advised Karasek “that he had a good and meritorious defense, was not liable, and to forget about the case.” Mrs. Josephine Karasek, Edward’s mother, denies that any service whatever was made upon her. These claims presented issues of fact as to which there was a direct conflict in the testimony offered in behalf of the respective parties on the hearing of this case. The burden of proof was upon plaintiffs. At the conclusion of the hearing the' circuit judge said:
“In this case the court is satisfied that service of process was made upon both the plaintiffs, Edward Karasek and Josephine Karasek, as returned by the deputy sheriff; and the court further feels that there has not been sufficient proof of any fraud or misrepresentation preventing plaintiffs from entering their appearance or protecting their rights.”
A careful review of this record satisfies us that the circuit judge reached the right conclusion.
Appellants also stress the claim that there was a discrepancy between this wording of the declaration as filed and that of the copy served upon one of the defendants in the law case. This discrepancy, which we think is insignificant and immaterial, arose from an erroneous reference in the original declaration to the defendant Josephine Karasek as the wife of Edward Karasek. Instead, she was Edward’s mother. In the copy of the declaration served on one of the defendants in the law case a line was drawn through the two words “his wife.” The deputy sheriff testified that in the copy which he served on Josephine “there were no alterations;’’ but he made his return of service “of a true copy” on a copy of the declaration from which the two words “his wife” had been stricken. We omit further details, because, under the circumstances here presented, it conclusively appears that no one was deceived or in any way misled by the erroneous reference to Josephine Karasek as Edward’s wife instead of as his mother. At most it was an immaterial irregularity or defect which does not invalidate the judgment.
“When a verdict shall have been rendered in any cause, the judgment thereon shall not be stayeá, nor shall any judgment upon confession, or default, be reversed, impaired, or in any way affected by reason of the following imperfections, omissions, defects, matters or things, or any of them, in the pleadings, process, record or proceedings, namely: * * * (3) For any variance between the original writ, bill, plaint and declaration, or between either of them.” 3 Comp. Laws 1929, §14148.
The decree entered in the circuit court in chancery is affirmed, with costs to appellees.
McDonald, C. J., and Clark, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Wiest, J.
Plaintiff brought a summary proceeding against defendant before a circuit court commissioner and obtained restitution of certain premises. Defendant appealed to the circuit court and now prosecutes an appeal to -this court.
Plaintiff is vendee in a land contract, and defendant, desiring to purchase plaintiff’s equity, the parties reached an agreement and reduced the same to writing, by which defendant was to pay $820 for the equity, make a down payment of $100, and the balance at $25 per week, and, when the full sum was paid, plaintiff should execute an assignment of the land contract. The agreement also obligated defendant to pay $55 per month for use and occupation of the premises pending the assignment, that being the amount plaintiff had to pay the vendor. Plaintiff agreed to pay the tax then due for 1931. Defendant made the down payment of $100, and also $60, one $25 payment, and one $55 payment, and then refused to pay any more until plaintiff paid the 1931 tax, amounting to $181. Thereupon plaintiff gave defendant notice to quit or pay the rent, and later commenced the summary proceeding.
Defendant contends that the default of plaintiff in paying the tax precludes him from prosecuting this suit, and also, claims that there was no relation of landlord and tenant.
The agreement fixed no time for payment of the tax. It will be noted that the agreement for the assignment of the vendee’s interest in the land contract was executory, and the monthly payment, for use and occupation of the premises, brought the relation in the meantime of landlord and tenant. No time having been fixed for payment of the tax, defendant could not set a time, and conld protect himself at the time of tendering full performance of the purchase price of the equity, but defendant urges that nonpayment of the tax may constitute a default by plaintiff under the land contract. That contract is not in the record, and we cannot surmise its terms.
The .circuit judge tried to get the parties to exercise some degree of sense, and plaintiff was willing to pay the tax at once if defendant would make the past-due payments, but this defendant refused to do, and elected to stand on his legal rights. He cannot have the use and occupation of the premises without the monthly payments.
The judgment in the circuit court is affirmed, with costs to plaintiff.
McDonald, C. J., and Clark, Potter, Sharpe, North, Pead, and Btttzel, JJ., concurred. | [
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Fead, J.
In 1925 Lars Andersen and wife sold premises to Frank Kloka and wife on land contract. Plaintiffs acquired the vendor’s interest. In 1927 Kloka became in default and plaintiffs commenced summary proceedings for possession. While the proceedings were pending, defendants purchased the Kloka interest and took an assignment. The assignment was not produced, and we do not know its terms. Defendants paid plaintiffs the sum due to date, the summary proceedings were dismissed, and defendants were put into possession by Kloka. They made the contract payments for about four years, when, after some discussion about defendants making substantial payments in excess of the sums required, the parties executed a written instrument as follows: . •
“This contract made this 6th day of January, 1931, is for the purpose of amending a certain land contract, now held between both parties hereto by assignment.
“Eber N. Copeman and Nellie E. Copeman, his wife, hereinafter known as parties of the first part, are assignees of the original sellers’ (Lars Andersen and Christine, his wife) interests, and Joseph E. Takken and Germaine Takken, his wife, hereinafter known as parties of the second part, are assignees of the original purchasers’ (Frank Kloka and Anna Kloka, his wife) interests, in a certain land contract dated September 17, 1925, which provides for the sale of lot (description of property). .
“In consideration of the parties of the second part, making various payments in excess of the required minimum monthly payment of $158 on the attached land contract; the parties of the first part agree to lower the specified minimum monthly payment of $158 whenever the parties of the second part desire, provided that at no time shall the equal minimum monthly payments including interest be lowered below an amount which if continued would operate, so as to extend the date the final payment would fall due under the original attached contract which is mutually agreed to be the 17th day of April, 1937.”
Defendants made some payments thereafter, but no excess payments. They became in default, plaintiffs brought this action at law to recover payments due, and had judgment.
Defendants deny liability at law on the ground that there is no privity of contract between them and plaintiffs. Tapert v. Schultz, 252 Mich. 39. Plaintiffs claim privity of contract was established by the agreement of January 6th, although it does not expressly provide that defendants agree to pay the purchase price.
Recourse need not be had to extraneous .circumstances, because the agreement is clear. As between the parties, it establishes not only that they own respectively the original contract interests in the land, but also that the contract itself is held by them alone. They agree that their ownership of both land and contract is so exclusive and complete that they may change the terms of purchase without reference to the original parties. The agreement secures to defendants a privilege not granted by the original contract and coextensive with its life, whether used or not. In securing this privilege, defendants stepped out of the character of mere as signees of Kloka, obtaining personal grace from plaintiffs, and assumed the role of parties to the original contract because the privilege was agreed by way of permanent amendment to the contract itself. In other words, the parties contracted with each other that they were the present parties vendors and vendees in the original contract, and agreed, as such, to permanent amendment of it. Privity between them was established thereby, and each became bound to the other to perform the contract.
The suit was brought originally in the court of common pleas, where judgment was rendered for plaintiffs against Joseph B. Takken, but against plaintiffs and in favor of Mrs. Takken of no cause of action. Plaintiffs did not appeal, nor did Mrs. Takken. In his notice of appeal, Takken recited the whole judgment. Plaintiffs contend the recital operated as an appeal from the entire judgment, and made Mrs. Takken a party in circuit court. Plaintiffs recovered against both defendants.
One defendant may appeal for his own benefit without others joining. People, ex rel. Keal, v. Wayne Circuit Judge, 36 Mich. 331. A proper bond is an essential to appeal from justice’s court. The appeal bond was executed only by Takken and his surety and in the interests of Takken alone. So Mrs. Takken was not an appellant. Jopp v. Kegel, 83 Mich. 50. The bond ran to plaintiffs only. So Mrs. Takken was not an appellee. 3 Comp. Laws 1929, § 16225.
Judgment against Takken will be affirmed, with costs, and against Mrs. Takken will be reversed, with costs.
McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
The record does not disclose that the summons issued herein was served on the defendant Robert H. Amos. It does appear that a motion for the appointment of a receiver was made on November 8, 1930, and denied, conditionally, on November 11,1930, and a petition to adjudge the defendants in contempt, heard and denied on December 6,1930, and an order made appointing a receiver on December 11, 1930.
On January 5, 1931, an affidavit of plaintiff’s attorney was filed, in which he stated:
“That on November 8, 1930, he was above the age of 21 years and of sound mind and discretion; that on said day he served -a true copy of bill of complaint and application for appointment of receiver attached hereto, on Oolin J., McRae, attorney, who voluntarily appeared for Robert H. Amos and Florence B. Amos, defendants herein, at Detroit, Michigan, by handing to said Colin J. McRae said true copy of said bill of complaint and application for appointment of receiver. ’ ’
An order pro confesso was entered on that day and an affidavit of regularity on the following’ day. On January 9th defendants moved to set aside the default. This motion was based on the affidavit of their attorney, Colin J. McRae, in which he stated that his former ¿ppearance (a copy of which does not appear in the record) had been special and -for the defendant Florence Amos alone, and denied that a copy of the bill of complaint and application for appointment' of a receiver had been served on him, as averred in the affidavit of plaintiff’s attorney above referred to. Attached to this petition was a copy of the joint answer of the defendants, verified by them. The docket entries show that this motion was dismissed on January 17th, but the order to that effect, which would doubtless disclose the reason therefor, is not in the record.
The docket entries also disclose that on January 17th the cause was heard “and decree for plaintiff ordered;” that on January 26th a “motion to set aside default of defendant granted, upon payment of $100 by January 28, 1931.” Apparently this payment was not made, and on January 28th the decree was signed and filed, and enrolled on February 20th. It recites:
“This cause having come on to be heard upon the pleadings and proofs taken therein in open court, and the court being advised in the premises, it is found that the allegations in the bill of complaint are true. ’ ’
It fixed the amount due on the land contract, and ordered payment of the same. It further provided that the' moneys paid to the clerk of the court by the receiver should be paid out by him—
“One-half to Abraham Slutsky and Samuel D. Frankel, attorneys for plaintiff herein, and one-half to Colin J. McRae, attorney for defendants herein. ’ ’
Below the signature of the trial judge thereto appears the following:
“We hereby approve the above decree.
“Abraham Slutsky, “Attorney for plaintiff.
‘ ‘ Colin J. McRae, “Attorney for defendants, “Robert H. Amos and “Florence B. Amos. “February 20, 1931.
“Rec’d. of Thomas Farrell, county clerk, ck. $124.83.
“Abraham Slutsky,
“Attorney for plaintiff. “February 20, 1931.
“Rec’d. of Thomas Farrell, county clerk, ck. $124.84.
‘ ‘ Colin J. McRae,
‘ ‘ Attorney f or def endants. ’ ’
On March 23, 1931, the defendants, appearing by their present attorneys, petitioned the court to set aside and vacate the decree for the reason that “no service of process was ever made on the defendant, Robert H. Amos, ’ ’ and the court was without jurisdiction to render it. This petition was supported by the affidavit of Robert H. Amos, who deposed “that no process was ever served upon him, ” and that “he is informed that no appearance was ever entered in said cause for him.” An affidavit of one of defendants’ attorneys, verifying the docket entries in the case, was also attached. After a hearing thereon, an order was made denying the petition, on June 8, 1932. It is from this order that the defendants have taken this appeal.
No leave to appeal was applied for or granted. Under our holding’ in Mack International Truck Corp. v. Palmer, 259 Mich. 234, the appeal would have been dismissed had motion been made therefor.
But, without disposing of it for this reason, we may say that the approval of the decree and the acceptance of benefits under it by counsel for both defendants estop the defendant Robert H. Amos from attacking it where no claim is made of fraudulent conduct on the part of the attorney who assumed to act for him.
The appeal is dismissed, with costs to appellee.
McDonald, C. J., and Clark, North, Fead, Wiest, and Butzel, JJ., concurred with Sharpe, J. | [
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Potter, J.
Plaintiff sued defendant to recover taxes paid under protest, From a judgment for defendant, plaintiff appeals. S. Porter Tuttle, a resident of Grand Rapids, died August 30, 1930. Plaintiff was appointed executor of his estate. In 1931 the State board of tax commissioners ordered the levy against plaintiff of taxes on personal property which had belonged to deceased, in its hand's, claimed to have been omitted from the tax roll for previous years. Taxes aggregating $37,346.28 were assessed against plaintiff, paid by it under protest, and suit is brought to recover them back.
(1) “Tax exactions, property or excise, must rest upon legislative enactment, and collecting officers can only act within express authority conferred by law. Tax collectors must be able to point to such express authority so that it may be read when it is questioned in court. The scope of tax laws may not be extended by implication or forced construction. Such laws may be made plain, and the language thereof, if dubious, is not resolved against the taxpayer.” In re Dodge Brothers, 241 Mich. 665.
(2) The right claimed by defendants to assess to plaintiff the tax in question, if it exists, must be found in 1 Comp. Laws 1929, § 3548, which provides for the reassessment of property, not assessed for previous years and which ought to have been assessed, for taxes.
This statute provides the omitted property reassessed (a) “shall be listed for taxation upon the next assessment roll that shall be made and shall be valued as all other property. ” (b) The tax ‘ ‘ shall constitute a charge against the person and property and be collected as other taxes.” (c) “In case of change in ownership of the property omitted, said taxes shall not be spread against said property prior to the last change of owhérship.”
(3) Was there a change of ownership of the personal property of S. Porter Tuttle upon his death and the appointment of plaintiff as executor óf his will?
The title to personal property of decedent at his death passes to his executor or administrator upon appointment, and rests in them absolutely; but the title to real estate descends immediately to his heirs, subject to be divested for the payment of decedent’s debts. Palmer’s Appeal, 1 Doug. 422; Powell v. Pennock, 181 Mich. 588.
The title of an administrator or executor of a decedent to the personal property of deceased is so vested for the purposes of administration, at the conclusion of which the balance remaining will be distributed. Palmer’s Appeal, supra; Windoes v. Colwell, 247 Mich. 372.
The title of personal property, upon the death of a decedent, remains in abeyance until administration is granted in his estate, and is then vested, as of the time of his death, in his executor or administrator. Cullen v. O’Hara, 4 Mich. 132.
The title to personal property does not pass to the next of kin. Morton v. Preston, 18 Mich. 60 (100 Am. Dec. 146). An executor or administrator appointed by the probate court is an officer of that court, who has title to the assets of the estate of deceased for the purpose of collecting and disbursing of the same for the benefit of creditors, the beneficiaries under the will, or the next of kin. Gilkey v. Hamilton, 22 Mich. 283. The legal estate in personal property upon the death of the owner thereof, vests absolutely in his executor or administrator. Foote v. Foote, 61 Mich. 181.
“It is well settled in this State that, on the decease of an intestate, the title to his personal effects remains in abeyance until the appointment of an administrator, and then vests in him, in trust, in his official capacity, as of the time of the intestate’s death, and he is entitled to the possession of such assets, and to manage the property for the purposes of his trust. Palmer’s Appeal, 1 Doug. 422, 424; Cullen v. O’Hara, 4 Mich. 132; Wales v. Newbould, 9 Mich. 45, 83; Morton v. Preston, 18 Mich. 60 (100 Am. Dec. 146); Gilkey v. Hamilton, 22 Mich. 283; and Albright v. Cobb, 30 Mich. 355, 359.” Parks v. Crippin-Norris, 101 Mich. 71, 77.
“The general rule is that title to personal property of a decedent, testate or intestate, vests in the personal representative until administration is completed and the estate is fully settled and distributed, or until he chooses or is forced to part with it earlier. 18 Cyc. p. 353, and cases cited. This rule had been recognized in this State and in intestate cases has always been followed. Cullen v. O’Hara, 4 Mich. 132, 138; Miller v. Clark, 56 Mich. 337, 341; Parks v. Crippin-Norris, 101 Mich. 71, 76, 77.” In re Reidy’s Estate, 164 Mich. 167.
“ ‘It is well settled in this State that, on the decease of an' intestate, the title (legal title) to his personal effects remains in abeyance until the appointment of an administrator, and then vests in him, in trust, in his official capacity, as of the time of the intestate’s death, and he is entitled to the possession of such assets, and to manage the property for the purposes of his trust.’ Parks v. Crippin-Norris, 101 Mich. 71.
“See, also, Cullen v. O’Hara, 4 Mich. 132; Palmer v. Palmer, 55 Mich. 293; Miller v. Clark, 56 Mich. 337; Morris v. Vyse, 154 Mich. 253 (129 Am. St. Rep. 472); In re Reidy’s Estate, 164 Mich. 167. And, except under special circumstances, such administrator, or other personal representative, as holder of the legal title, is alone authorized to bring an action for the recovery of a debt due to the estate. Cullen v. O’Hara, supra; Gilkey v. Hamilton, 22 Mich. 283; Hollowell v. Cole, 25 Mich. 345; Parks v. Crippin-Norris, supra; Buchanan v. Buchanan, 75 N. J. Eq. 274 (71 Atl. 745, 22 L. R. A. [N. S.] 454, 138 Am. St. Rep. 563, 20 Ann. Cas. 91).” Brobst v. Brobst, 190 Mich. 63.
The indebtedness of an heir to the estate of a deceased person may be set off by the administrator against his distributive share in the assets of the estate consisting of personal property and applied by the administrator in payment of the debt due the estate from the heir, but,
"The title to the real estate vests in the heir at the date of the death of the ancestor. Real estate is •not assets in the hands of a personal representative, . and, unless otherwise charged by the terms of a will, is- subject only to the contingency of a sale of so much thereof as may be necessary to pay the debts of the estate in case there is not sufficient personal estate for that purpose. This statutory contingency is' a modification of the common law, and no sale of real estate to pay debts of the estate could be made before this modification.” Marvin v. Bowlby, 142 Mich. 245, 255 (4 L. R. A. [N. S.] 189, 113 Am. St. Rep. 574, 7 Ann. Cas. 559).
For the reason the legal title to personal property, upon the death of the ancestor and the appointment of an executor or administrator, passes as of the date of-the death of the ancestor, to the executor or administrator and the heir indebted to such estate owes him, he may. apply what the heir owes him in payment .of what he owes the heir. While as to real estate, the.title of which passes upon the death of the ancestor to the héir unless otherwise directed by will, no set-off is possible. 3 Comp. Laws 1929, § 14132. In addition to the general rule above stated, relating to set-off, 3 Comp. Laws 1929, § 14137, provides:
• "In suits brought by executors and administrators, demands existing against their testators or in-testates, and belonging to the defendant at the time of their death, may be set-off by the defendant in the same manner as if the action had been brought by and in the name of the deceased. ’ ’
The right of set-off recognized by statute and by the decisions above mentioned, can exist only when the executor or administrator of the estate of the deceased has title to property.
During the lifetime of a person the title of his personal property rests in him. Upon his death he no longer can hold property. The legal title of personal property passes to his executor or administrator. They may sue for it, control it, and at the conclusion of administration use it for the purpose of paying the debts of heirs to the estate. Debts of the estate may be set off by persons to whom owing, in suits brought by executors and administrators against them. This would not be possible unless there was a change in ownership from decedent to the executor or administrator.
Defendant has recognized and acted upon this change in ownership. Prior to his death, personal property taxes were assessed against S. Porter Tuttle. Since his death and the appointment of the plaintiff as executor, personal property taxes against the estate of S. Porter Tuttle, deceased, are levied and assessed against plaintiff. Why? For the obvious reason that defendant recognizes there was a change of ownership at the death of Mr. Tuttle and the appointment of plaintiff by the probate court as executor of his will.
In People v. Sears, 344 Ill. 189 (176 N. E. 273), a question similar to that involved was before the court. The statute of Illinois provided for the reassessment of omitted taxes under substantially similar conditions that omitted taxes may be reassessed in this State. That act provided:
“No such charge for tax and interest for previous years, as provided for in the preceding section, shall be made against any property prior to the date of ownership of the person owning such property at the time the liability for such omitted tax was first ascertained.” (5 Smith-Hurd Illinois Stat., chap. 120, § 263.)
During Sears’ lifetime none of the omitted property was assessed against him. He paid all taxes levied and assessed against his property. The property which was reassessed against him was property which after his death it was discovered had been omitted from the assessment roll in his lifetime. The court gave exhaustive consideration to this case. It was argued by eminent counsel. The court said:
“The liability of the owner of property for the payment of taxes is purely statutory. The law is well settled that the legislative power of a State to provide for the levy and collection of taxes is unlimited, except as restricted by the State and Federal Constitutions. (Chambers v. People, ex rel. Fuller, 113 Ill. 509.) The obligation of the citizen to pay taxes is purely a statutory creation, and taxes can be levied, assessed and collected only in the mode pointed out by express statute.. (Cooley on Taxation [2d Ed.], p. 15.) The revenue act of 1872 provided for the assessment of real or personal property which had been omitted in the assessment of any year and the placing of it on the assessment and tax books.”
The important question was whether or not there had been a change in ownership of the property. That is the important question here. The Illinois court said:
“At the death of Sears, in 1914, there was a change of ownership. His will gave.all his property to his widow at the instant of his death, subject only to the payment of his debts. There was no tax debt at that time, because during his lifetime there had been no assessment for omitted taxes. After his death and the change of ownership to his widow any charge against the property for taxes and interest for previous years was expressly prohibited by section 278. If there is any doubt whether the sections in question authorized a charge for taxes against the legatee on account of property omitted from assessment by a deceased owner and devised by him, the language of the statute cannot be extended beyond its clear import to make the property subject to the taxation. Such statutes imposing a tax, in case of doubt, are construed most strongly against the government and in favor of the citizen. (Fidelity & Casualty Co. v. Board of Review, 264 Ill. 11 [105 N. E. 704]; People, ex rel. City of Chicago, v. Barrett, 309 Ill. 53 [139 N. E. 903].) There could be no valid subsequent assessment, for the reason that the statute expressly prohibited an assessment after a change of ownership. While the executrix held the legal title the sole beneficial ownership was in the legatee or heir. If Sears had transferred all of his money and personal property to another in his lifetime there would have been a change of ownership, which under the express terms of section 278 would have prevented any charge against the property for taxes or interest of previous years. He did make a transfer by his will, which had the same effect at the moment of his death as a transfer by a grant and delivery of possession would have had in his lifetime. The fact that the new owner of his property was his widow made her position no different from that of a stranger, as no exceptions are made in section 278 to its general prohibition against the assessment of omitted property after a change of ownership.”
The court held, under the provisions of the Illinois statute providing for the assessment of real or personal property omitted from taxation by decedent during his lifetime, there was no basis for an attempt of the board of review to assess the property omitted by Sears in his lifetime against Mrs. Sears, either as his legatee or the executrix of his will. It is said:
“The moment he died her rights under his will attached. Her title was then vested, and no change in the law thereafter made could disturb such vested rights. Rowlett v. Moore, 252 Ill. 436 (96 N. E. 835, Ann. Cas. 1912D, 346). The title to all his property was vested in her, subject to his debts. Since there could be no tax without an assessment there was no debt, and since section 278 prohibited any assessment against the property prior to the date of her ownership, there never could be any assessment or any debt. ‘The moment the testator or intestate dies, then the rights of the .devisees or heirs attach at once, for the title is then already vested, and any change in the law after that could not affect such vested rights.’ Sturgis v. Ewing, 18 Ill. 176. Mrs. Sears from the death of her husband was the sole and absolute beneficial owner of all the property which he owned at his death, subject only to the payment of his lawful debts. It was not within the power of the State thereafter, by mere legislation, to impose upon her any additional obligation or to create any charge against her property. To do so would be a taking of her property without due process of law. The legislature has the undoubted right to repeal all legislative acts which are not in the nature of contracts or private grants, but the repeal of a law cannot affect or impair rights which have been acquired under it. So of the adoption of a new law. It can have no retrospective operation so far as vested rights are concerned. Statutes are not to be given a retrospective operation except where it is manifest the legislature intended they should have such operation, and it is not competent even for the legislature to give such operation to an act where it will affect existing vested rights. Dobbins v. First National Bank, 112 Ill. 553.
“Since the statute at the time of the death of the decedent made no provision for the assessment after his death of personal property which he had owned but which had been omitted from assessment in his lifetime in various years, as claimed by the bill, the decree of the circuit court is without foundation in the law for its support.”
(4) It is claimed that in insurance cases, change of interest of the insured does not affect liability on the policy. That depends on the terms of the policy, provision of the statute, and construction by the court.
In Lappin v. Charter Oak Fire Ins. Co., 58 Barb. (N. Y.) 325, the policy of insurance contained a clause that it should be void, in case there was any change of title in the property insured, unless the consent indorsed upon the policy was obtained. While this policy was in force the insured died, and suit was brought by his administrator. It was said:
“It seems clear, therefore, that the policy of insurance by the most clear and explicit terms and provisions thereof, became void and ceased to have any binding force, upon the death of the assured, and the vesting of the title to the property insured in the heirs-at-law. That this was a change of title, from the assured to others, cannot be denied, and it brings the case within the express terms of the policy. ’ ’
A similar question was before the supreme court of New York in Hine v. Woolworth, 93 N. Y. 75 (45 Am. Rep. 176). There, one Brouillet had an insurance policy which contained substantially the same provisions as involved in Lappin v. Charter Oak Fire Ins. Co., above referred to. Brouillet died. After his death a loss occurred, and the insurance company defended upon the ground there had been a change of interest. The court said:
“When Brouillet died and the title to the property was transferred to his heirs there was such a change of interest as avoided the policy until the consent of the company should be obtained. ’ ’
A case somewhat analogous was before the court in Cook v. Kentucky Growers Ins. Co., 24 Ky. Law Rep. 1956 (72 S. W. 764). There a policy was issued to the insured. There was no provision in the policy that it was payable to his executors, administrators, or assigns. The defendant company was a mutual insurance company in which losses are liabilities of the members. Liability was mutual. Obligations reciprocal. The court held the insurance company was not liable for a loss which occurred after the death of the insured to his heirs, because such heirs were not liable for the premium; were not members of the company, and that mutuality, which lies at the basis of mutual insurance, having been destroyed, the company could not be held liable because the insured had ceased to be a member.
In Gillon v. Northern Assurance Co., 127 Cal. 480 (59 Pac. 901), the real estate was, during the lifetime of the deceased, transferred by deed operative either upon the delivery of the deeds or at the death of the grantor. After the insurance was issued and the death of the insured, a fire occurred, and the court, in denying liability of the insurance company, said that though the deeds were executed to avoid the expense of probating the estate, “The conveyance of the buildings by the insured operated to transfer the title in the property to Gillon, either at the date of the deed or at the time of the grantor’s death,” and held the company was not liable upon the policy.
A similar question apparently was discussed by counsel in Westchester Fire Ins. Co. v. Dodge, 44 Mich. 420, where it is said:
“Whether the death of a person insured before a loss occurred would render void the policy, we are not called upon to determine in this case. By the terms of the policy the loss was made ‘payable to Chester Downer of Sharon, Vermont, as his mortgage interest may appear,’ and under such a provision the mortgagee could not be cut off from the protection which the policy afforded him, by the death of the person to whom the policy was issued.”
The general rule is thus summed up in 4 Joyce on the Law of Insurance (2d Ed.), § 2289, p. 3908:
“If, however, a policy is conditioned to be void if the interest of the insured shall be changed in any manner, whether by act of the insured or by operation of the law, it has generally been held that the death of the insured will avoid the policy. So where a fire policy was conditioned to be void ‘if, without the written consent of the company first had and obtained, the said property shall be sold or conveyed and the interest of the parties therein be changed in any manner, whether by the act of the’ parties or by operation of law, or the property shall become incumbered by mortgage, judgment, or otherwise,’ and the insured died intestate as to all his property, it was held that the policy was void by change of interest. Where the policy is conditioned to be void ‘in case of any sale, transfer, or change of title in the property insured,’ it is held that the policy ceased to have any force upon the death of the insured, and the vesting of the title in his heirs-at-law. ’ ’
(5) Personal property in the hands of a trustee is assessed to the trustee and not to the beneficiaries of the trust, for the reason the legal title is in .the trustee and not in the beneficiaries of the trust. City of Detroit v. Lewis, 109 Mich. 155 (32 L. R. A. 439); 1 Perry on Trusts (7th Ed.), § 331; 1 Lewin on Trusts (13th Ed.), p. 236; Cooley on Taxation (2d Ed.), p. 375; 25 Am. & Eng. Enc. Law (1st Ed.), p. 153; Latrobe v. Mayor of Baltimore, 19 Md. 13; Dorr v. City of Boston, 6 Gray (72 Mass.), 131; Davis v. Macy, 124 Mass. 193; Smith v. Byers, 43 Ga. 191; Greene v. Mumford, 4 R. I. 313; Catlin v. Hull, 21 Vt. 152; People, ex rel. Western R. Co., v. Assessors of Albany, 40 N. Y. 154; Lewis v. Chester Co., 60 Pa. 325.
(6) It seems clear upon principle and authority, that, upon the death of S. Porter Tuttle, and the appointment of plaintiff by the probate court as executor of his will, there was a change of ownership of the personal property in question. Before death it belonged to S. Porter Tuttle. By his death and the appointment by the probate court of plaintiff as executor, there was a change in ownership of such personal property from him, by death, his will operative at his death, and the appointment by the probate court of plaintiff as executor, from S. Porter , Tuttle to plaintiff, and because of that change of ownership of the personal property, which had belonged to decedent in his lifetime, from him to plaintiff, the taxing power of defendant could not spread against plaintiff a tax “against said property prior to the last change of ownership, ’ ’ which is what was done. It follows that plaintiff is entitled to recover.
Judgment reversed, and judgment directed to be entered for plaintiff against defendant for the amount of taxes involved, with costs.
McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Btjtzel, JJ., concurred. | [
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Per Curiam.
Petitioners appeal as of right from the August 12, 1983, judgment of the Michigan Tax Tribunal which upheld the Department of Treasury’s jeopardy sales tax assessment in the amount of $50,876. The assessment was based on petitioners’ alleged sale of large quantities of marijuana from May 1, 1979, through August 9, 1979.
This Court’s review of decisions of the Tax Tribunal is limited, in the absence of fraud, to determining whether the tribunal made an error of law or adopted a wrong principle. The factual findings of the tribunal are final, provided that they are supported by competent, material and substantial evidence. General Motors Corp v Detroit, 141 Mich App 630, 633; 368 NW2d 739 (1985), MCI Telecommunications Corp v Dep’t of Treasury, 136 Mich App 28, 30; 355 NW2d 627 (1984), Const 1963, art 6, § 28.
I
The General Sales Tax Act, § 2, establishes the basis for the tax as follows:
"Except as provided in section 2a, there is hereby levied upon and there shall be collected from all persons engaged in the business of making sales at retail, as defined in section 1, an annual tax for the privilege of engaging in that business equal to 4% of the gross proceeds thereof, plus the penalty and interest when applicable * * *.” MCL 205.52(1); MSA 7.522(1). (Emphasis supplied.)
The term "sale at retail” is defined as:
"[A] transaction by which is transferred for consideration the ownership of tangible personal property, when the transfer is made in the ordinary course of the transferor’s business and is made to the transferee for consumption or use, or for any other purpose than for resale, * * MCL 205.51(l)(b); MSA 7.521(l)(b).
Petitioners first contend that the sale of marijuana is not a "sale at retail” within the meaning of the statute because the Legislature only intended the act to apply to legal sales transactions.
Petitioners’ argument has long ago been rejected. In Youngblood v Sexton, 32 Mich 406, 422-423 (1875), Justice Cooley stated:
"Indeed, in this state, liquors have always been taxable as property; and so have been the implements by means of which forbidden games of chance have been carried on. Yet, when the keeper of billiard tables is compelled to pay a tax, it can be no defense to him, either in law or in morals, that he is compelled to do so from the profits of an illegal business. To refuse to receive the tax under such circumstances, would tend to encourage the business, instead of restraining it; and would not only be unwise because of exempting one man from his fair share of taxation, but also because it would tend to defeat the state policy which forbids games of chance and hazard.”
Similar principles have been applied to federal income taxation of illegal activities. See Lewis v United States, 348 US 419, 421; 75 S Ct 415; 99 L Ed 475 (1955).
The term "business” is defined in the act as "an activity engaged in by a person or caused to be engaged in by that person with the object of gain, benefit, or advantage, either direct or indirect”. MCL 205.51(l)(h); MSA 7.521(l)(h). The act makes no distinction between legal and illegal sales activities. It would be unreasonable to assume that the Legislature intended to impose a sales tax on those who comply with the law, while exempting those who disobey it.
Petitioners further assert that the act only covers transactions for which a sales tax license is required. See MCL 205.53; MSA 7.523. They reason that, since the state cannot license them to conduct an illegal activity such as the sale of marijuana, there can be no sales tax for that activity. Petitioners further assert that the licensing requirement violates their Fifth Amendment right against self-incrimination because the license application allegedly requires them to divulge the nature of the goods sold.
Petitioners’ argument based on the licensing requirement is without merit. Section 3 of the act, MCL 205.53; MSA 7.523, requires a person who engages in a business for which a privilege tax is imposed to obtain a license from the department. A violation of § 3 constitutes a misdemeanor punishable by fine and/or imprisonment.
It is apparent that the sales tax is imposed by § 2 of the act; the licensing provision in § 3 is irrelevant to the state’s authority to impose the tax. Moreover, petitioners’ claim that the license application violates their rights under the Fifth Amendment has no bearing on the state’s authority to impose a tax on sales at retail. We therefore conclude that the department had authority under § 2 to assess a sales tax on petitioners’ illegal sale of marijuana.
II
Petitioners next contend that the Tax Tribunal hearing officer erred in admitting testimony which conflicted with the department’s prior answers to interrogatories. An Ingham County Deputy Sheriff testified that he seized approximately 20 sandwich-size "baggies” of marijuana at petitioners’ home. The department had previously answered interrogatories by stating that the 27 pounds of marijuana found in petitioners’ car was the only contraband seized. Petitioners’ motion to strike the challenged testimony was denied.
We find no error in the hearing officer’s denial of the motion to strike. Petitioners clearly had notice of the seizure of the 20 baggies of marijuana, and they have not demonstrated any prejudice from admission of the testimony. Furthermore, any error in this regard was harmless because it is apparent that the hearing officer placed very little reliance on the challenged testimony.
III
Petitioners finally contend that the Tax Tribunal committed an error of law in upholding the department’s method of computing the sales tax. They first challenge the inclusion of 200 pounds of marijuana which was allegedly available to them but never actually recovered by the authorities. Petitioners assert that the 200 pounds never existed. They further contend that the Tax Tribunal incorrectly upheld the department’s calculation of the assessment based on a weekly sales capability of 243 pounds (known sale of 15 pounds, attempted sale of 28 pounds and potential sale of 200 pounds) and the department’s selection of a 101-day period based on alleged on-going sales activity. Finally, petitioners assert that the Tax Tribunal failed to accord due weight to the testimony of their expert witness.
Under MCL 205.67; MSA 7.538, taxpayers are required to maintain complete records of sales activities. The statute further states:
"In the event the taxpayer fails to file a return or to maintain or preserve proper records as prescribed in this section or the department has reason to believe that any records maintained or returns filed are inaccurate or incomplete and that additional taxes are due, the department shall be empowered to assess, upon such information as is available or may come into possession of the department, the amount of the tax due from the taxpayer. Such assessment after notice and hearing as hereinafter provided shall be deemed to be prima facie correct for the purpose of this act and the burden of proof of refuting such assessment shall be upon the taxpayer. ” (Emphasis supplied.)
The statute evidences a legislative intent to encourage complete and accurate bookkeeping and to accord great discretion to the department in making assessments. It does not restrict admissibility of evidence, but, rather, authorizes the department to base assessments "upon such information as is available” to it. The Legislature has also given the Tax Tribunal considerable leeway with respect to the admissibility of evidence at hearings. See MCL 205.746; MSA 7.650(46).
The opinion of the hearing officer, adopted by the Tax Tribunal, carefully outlined the evidence, made credibility decisions and determined that petitioners failed to carry their burden of proof in challenging the amount of the assessment. This Court finds that the Tax Tribunal’s determination is supported by competent, substantial and material evidence on the record. We further find that the Tax Tribunal made no error of law in upholding the department’s methodology.
Affirmed. | [
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Per Curiam.
Defendant appeals as of right from his jury convictions for first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and second-degree criminal sexual conduct, MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). He was sentenced to prison for from 12-1/2 to 25 years for first-degree criminal sexual conduct and from 7-1/ 2 to 15 years for second-degree criminal sexual conduct.
Defendant’s convictions stem from two incidents with his 8-year-old step-granddaughter in December, 1982. Approximately three months later, after watching a television program in which a sexual assault was made upon one of the characters, the victim informed her mother of these events. Approximately one week later, the victim’s parents notified the police.
On appeal defendant claims evidentiary error in six instances. In five instances, defendant did not object below. Failure to object precludes appellate review absent manifest injustice. MRE 103(a)(1); People v Owens, 108 Mich App 600, 604; 310 NW2d 819 (1981). Although no manifest injustice is presented, a substantive review of each of the claims indicates that they are without merit.
The first claim of error concerns the testimony of the victim’s mother that she took the victim to a psychologist. Defendant contends that this evidence is hearsay because it constitutes nonverbal conduct which the mother intended as an assertion that she acted with a belief in the existence of the alleged crimes. The prosecution counters that the evidence is not a statement offered to prove the mother’s belief, but that it is offered merely to explain the delay of one week between the time that the victim revealed these events and the time that police were notified. MRE 801(a) defines a statement for hearsay purposes as: (1) an oral or written assertion; or (2) nonverbal conduct of a person, if it is intended by him as an assertion. The Note to MRE 801(a) states that the rule is identical to FRE 801(a). The Advisory Committee’s Note to FRE 801(a) provides that a preliminary determination is required to determine whether an assertion is intended when evidence of conduct is offered on a theory that it is not a statement and thus not hearsay. It further provides that the burden of showing that an intention existed is upon the proponent or party claiming the existence of an intention. Ambiguous cases will be resolved in favor of admissibility. We observe that no preliminary determination was made below, and the record contains no evidence that the victim’s mother intended to make an assertion by her conduct. We conclude that the evidence is not hearsay, and was admissible. Compare, People v Davis, 139 Mich App 811, 813; 363 NW2d 35 (1984).
The second claim of error concerns the testimony of Officer Klann that the victim’s family was very emotional when they reported the incidents to him. Defendant contends that this testimony constitutes hearsay and evidence of prior consistent statements. We disagree. The officer’s testimony merely establishes the fact of the family’s report and his perception of them. This evidence in no way repeats the substance of the report given by the victim’s family.
The third claim of error concerns the prosecuting attorney’s request to Officer Klann to read a sentence from his report and Klann’s mistake by beginning to read aloud the sentence. (" 'While she was sitting on the roll-a-way [sic] she stated her grandfather walked up to h — '".) Defendant contends that this is hearsay and evidence of prior consistent statements. The error is harmless, because the witness was promptly instructed to read the sentence to himself. Further, the portion read is not damaging.
The fourth claim of error concerns the mother’s testimony that the victim informed her of the incident and Officer Klann’s testimony that the victim gave him a statement. According to defendant, these are inadmissible prior consistent statements. We disagree, because the testimony merely establishes that the victim reported the events. The testimony does not repeat the substance of the victim’s statements.
The fifth claim of error concerns the testimony of Officer Klann which clarified the source of words contained in his report. We find no error since defense counsel also elicited this testimony for clarification purposes.
Defendant’s final claim of error concerns the testimony of the victim’s mother that she waited one week to inform police because she wanted to consult with her husband, and with a minister and a psychologist. The trial court overruled defen dant’s objection with respect to relevancy. On appeal defendant claims that the evidence is hearsay. Evidentiary objections must be specific and state the precise ground or grounds for the objection. Failure to state the proper reason precludes appellate review unless there is manifest injustice. MRE 103(a)(1); Joba Construction Co, Inc v Burns & Roe, Inc, 121 Mich App 615, 626; 329 NW2d 760 (1982). We find no manifest injustice and no abuse of discretion in the trial court’s ruling. The testimony explains the one-week delay. Further, it relates to credibility, a key issue in a criminal sexual conduct case such as this where it is the complainant’s word against the defendant’s word.
Defendant’s convictions are affirmed. | [
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Per Curiam.
This Court, in an unpublished opinion in this case in October, 1984, remanded the case to the trial court for a statement on the record of the reasons for the sentence imposed on the defendant. Defense counsel was also to be given an opportunity to conduct an evidentiary hearing to develop a record on the following questions:
1. What was the composition of the "sentencing panel”?
2. What was the exact purpose of the sentencing panel?
3. What was the substance of the deliberations and report of the sentencing panel?
4. What weight was accorded to the sentencing panel’s recommendation in fashioning the defendant’s sentence?
Defense counsel was also given the right to put in other evidence regarding the form and function of the sentencing panel.
On November 21, 1984, the trial court held a hearing pursuant to this Court’s order of remand. Our review of the hearing transcript indicates defense counsel had an opportunity to further develop a record for our review. At the hearing, counsel for both sides indicated that an evidentiary hearing was unnecessary on the issue of the sentencing panel’s recommendation since they had stipulated to a statement of facts for purposes of appeal.
According to the stipulated statement of facts, prior to sentencing, a presentence investigation report was prepared by the county probation department and was available to and reviewed by defense counsel. The presentence report recommended "incarceration” with credit of 153 days. Also prior to sentencing, a sentencing panel, made up of three probation officers, recommended a sentence of from 20 to 80 years, with credit of 153 days. One of the three probation officers on the sentencing panel had prepared the presentence report. The recommendation was made to the judge pursuant to the Bureau of Probation Sentencing Panel System, which has been used in Oakland County since 1973 or 1974.
Part of the stipulated statement of facts contained a copy of the presentence report, a copy of the sentencing panel’s recommendation and an affidavit prepared by the chief probation officer for use in another case. These documents provide some general information about the function of th^ sentencing panel. The sentencing panel uses "seasoned supervisors” to make "ball park” sentencing recommendations to the Oakland County Circuit Court judges so that sentencing within the circuit will be consistent. The sentencing panel gets its information from the presentence report. The probation supervisors have knowledge of how the judges have handled similar defendants in the past.
Prior to sentencing, the defendant’s sentence was discussed in chambers by the court, defense counsel, the prosecutor and a member of the probation department. The trial court did not disclose the sentencing panel’s recommendation to defense counsel at that time. Defense counsel, who was aware that sentencing panel recommendations are generally utilized in the Oakland County Circuit Court, did not request disclosure of the sentencing panel’s recommendation.
At the November 21, 1984, remand hearing, the trial judge stated on the record the reasons for the sentence imposed. The judge sentenced the defendant to from 20 to 80 years because he felt that the defendant should be out of circulation for a sustantial period of time based upon his history of assaultive and violent crimes, and because of the senseless thing he did during this robbery (the presentence report indicated that the defendant struck the store manager’s head several times with a steel pipe). The judge noted that defendant was not new to the prison system and that he had behavorial problems while in prison.
Referring to the sentencing panel’s recommendation, the trial judge stated he was not bound by it. He indicated that frequently his sentences were higher or lower than the recommended sentences. In this case he indicated that the sentence recommendation did not influence his decision in any way.
The issue is whether defendant suffered a denial of procedural due process by not being informed of the recommendation of the sentencing panel. A related issue is whether he was prejudiced by not being informed about the sentencing panel’s recommendation of a 20- to 80-year prison term.
A defendant has a right to know the recommendation made in a presentence report. MCL 771.14(2); MSA 28.1144(2) provides that the report shall include a specific written recommendation for disposition. In this case a specific written recommendation of the sentence was made in the presentence report. The presentence report recommended "incarceration” with 153 days credit. This was a specific recommendation. See, People v Joseph, 114 Mich App 70, 78; 318 NW2d 609 (1982), lv den 417 Mich 877 (1983). This was the recommendation that was addressed by defendant and his attorney at the sentencing hearing. The sentencing panel’s recommendation was not disclosed to the defense counsel and defendant. That is the troubling aspect of this case. A judge may consult with others when fashioning a sentence. People v Sexton, 113 Mich App 145; 317 NW2d 323 (1982). But, in People v Beal, 104 Mich App 159; 304 NW2d 513 (1981), lv den 413 Mich 888 (1982), this Court recognized that probation officers are a valuable aid to the sentencing court, and that this Court’s prior decision in People v Oliver, 90 Mich App 144; 282 NW2d 262 (1979), rev’d on other grounds 407 Mich 857 (1979), should be limited to prohibiting presentence conferences where the sentencing judge is given information about a defendant which is not equally available to defendant’s counsel. In People v Jeffrey Thompson, 117 Mich App 210, 217; 323 NW2d 656 (1982), lv granted 418 Mich 946 (1984), a sentence was upheld where no information was disclosed in a presentence conference that was not disclosed to defense counsel and the defendant was not prejudiced as a result of the conference.
The situation which confronts us here is somewhere between the situations in People v Joseph and People v Jeffrey Thompson. A specific recommendation was made in the presentence report. Yet the person who made the recommendation in the presentence report and his supervisor were part of the sentencing panel that made a private recommendation of from 20 to 80 years imprisonment to the sentencing judge.
The trial court and the prosecutor attach significance to the fact that the sentencing panel system has been in effect for some time, since 1973 or 1974, according to the stipulated statement of facts. They also set great store by the supposed fact that the panel’s function and existence are well known within the Oakland circuit and that defense counsel knew a sentencing panel would make a recommendation. Be that as it may, it is still undisputed in this case that a sentencing panel made a specific recommendation which was not known to the defendant and that he was never given a chance to respond to this recommendation.
We are not finding fault with the sentencing panel concept. It is essential, at, times, for a sentencing judge to consult, explore and compare his views with others before eventually making his own independent decision. Sentencing is a difficult task and attempts like the sentencing panel system are reasonable answers to the difficulties inherent in imposing appropriate sentences. The problem here is the secretive nature of the recommendation, especially because disclosure of the recommendation would appear to be such a small matter. We conclude error occurred when the sentencing panel’s recommendation was not disclosed.
We find that a recommendation of "incarceration” in the prehearing report was sufficient compliance with the statute but that defendant was prejudiced by the nondisclosure of the sentencing panel’s recommendation. The trial court stated it did not rely on the sentencing panel’s recommendation of from 20 to 80 years at all when sentencing defendant to a term of from 20 to 80 years. We can see prejudice to the defendant by the way in which this undisclosed recommendation denied him effective allocution. We will hazard a guess that the fact that he faced a recommendation of a 20- to 80-year sentence could prod many a reticent defendant into loquacious eloquence.
We find error and conclude that the error was prejudicial. The remaining question is what remedy can be offered. Ordinarily resentencing is appropriate. In an analogous situation that remedy was ordered by this Court in People v Raymond, 119 Mich 413; 326 NW2d 526 (1982), where the presentence report given to the defendant and his attorney contained a different recommendation than the report used by the judge. Resentencing is also in order here. The sentence is vacated and the case is remanded to the trial court for resentencing. We retain no further jurisdiction._
We trust that the circuit court judge, whose patience in this matter has undoubtedly been taxed, will perform this judicial function with the judicious wisdom and the good grace he customarily exercises. | [
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Danhof, C.J.
Defendant appeals as of right from the order of summary judgment entered on June 25, 1984, declaring that plaintiff and defendant were equally responsible for the payment of no-fault benefits to their respective insureds. Plaintiff cross-appeals.
On August 25, 1982, plaintiff brought suit against defendant, alleging that seven named insureds were each insured under a no-fault insurance contract issued by it, which contracts contained "coordination-of-benefits” clauses. Plaintiff was obligated to pay medical benefits for injuries resulting from auto accidents involving the insureds unless the insureds were covered by another source which provided medical benefits. Each insured was also covered by a contract of accident insurance from defendant, which contract specifically provided that it would pay medical benefits for accidental injuries unless the insureds were covered by no-fault insurance, in which case no-fault would be primary.
In its complaint, plaintiff averred that during 1980-1981, each of the insureds sustained injuries in auto accidents and that claims for medical benefits were made against both plaintiff and defendant. According to plaintiff, both it and defendant denied the claims on the basis that other insurance was available. Plaintiff asserted that, despite the fact that it was not liable for benefits pursuant to the terms of its contracts, it paid the insureds an aggregate of $11,177.15 in benefits and demanded reimbursement from defendant, but defendant refused such. Plaintiff requested that the trial court enter a declaratory judgment that defendant was responsible for payment in the amount noted above.
Defendant answered the complaint, contending that under its insurance contract it was not responsible for the payment of benefits when there was applicable primary auto insurance coverage, such as plaintiff’s, available at the time of the claim.
Defendant moved for summary judgment pursuant to GCR 1963, 117.2(1) [now MCR 2.116(C)(8)], but argued its motion under both 117.2(1) and 117.2(3). The trial court determined that neither party was entitled to a judgment that the other party was solely responsible for the payment of benefits. Rather, the trial court determined that, because both contract provisions were unambiguous, the only proper remedy would be to hold each party responsible for the payment of one-half the benefits owed to the insureds. An order of summary judgment to this effect was entered on June 25, 1984. At issue is the apportionment of liability between the two insurers.
Defendant asserts that its policy was a medical insurance policy with a coordination-of-benefits provision which specifically stated that if the insured had no-fault auto insurance, the auto insurance carrier would be liable for no-fault benefits. Since the insureds in the instant case had no-fault insurance, defendant reasons that, under the clear language of its policy, plaintiff is primarily responsible for the payment of no-fault benefits.
Plaintiff, on the other hand, contends that, since no-fault insurance is compulsory and the health insurance provided by defendant is not, the coordination-of-benefits clauses in its policies should take precedence over and supersede the coordination-of-benefits clause in defendant’s policy.
Section 3109a of the no-fault act, MCL 500.3109a; MSA 24.13109(1), requires insurers providing personal protection insurance to offer coordination-of-benefits options to their insureds, at correspondingly reduced rates, which "coordinate” recovery under multiple policies and seek to obviate the potential for double recovery, thereby serving to reduce insurance costs.
In Nyquist v Aetna Ins Co, 84 Mich App 589; 269 NW2d 687 (1978), aff'd 404 Mich 817; 280 NW2d 792 (1979), this Court held that an insured could coordinate his no-fault insurance benefits with Blue Cross & Blue Shield benefits. Further, in LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173; 301 NW2d 775 (1981), the Supreme Court held that an insured could also elect to coordinate his no-fault benefits with benefits provided under the Medicare program. Some confusion reigns, however, where the insurance policies at issue both contain coordination-of-benefits clauses.
In Farm Bureau Mutual Ins Co v Horace Mann Ins Co, 131 Mich App 98; 345 NW2d 655 (1983), lv den 419 Mich 880 (1984), this Court held that it is absurd to assume "that where conflicting 'other insurance’ provisions exist by reason of overlapping coverages of the same occurrence [,] the provisions of one policy must yield to the provisions of the other”. 131 Mich App 103, quoting from Lamb- Weston Inc v Oregon Automobile Ins Co, 219 or 110, 128; 341 P2d 110, 118-119 (1959). This Court ruled that the conflicting clauses were to be declared repugnant and were to be rejected in toto. 131 Mich App 103-104. Once the conflicting clauses were disregarded, this Court found that both policies would clearly provide coverage and each insurer’s liability would then be prorated based on the proportion of the combined policy limits represented by the limits of each insurer’s policy. Farm Bureau, however, did not involve no-fault insurance.
In Mary Free Bed Hospital & Rehabilitation Center v Ins Co of North America, 131 Mich App 105; 345 NW2d 658 (1983), lv den 419 Mich 943 (1984), this Court relied upon Farm Bureau, supra, in reaching the same result. Mary Free Bed also did not involve no-fault insurance.
In United States Fidelity & Guaranty Co v Group Health Plan of Southeast Michigan, 131 Mich App 268; 345 NW2d 683 (1983), this Court again addressed the question of how conflicts between coordination-of-benefits clauses should be resolved. There, a no-fault insurance policy and the provisions of a group subscriber contract with a health maintenance organization were at issue. However, this Court found that there was no true conflict between the clauses because the plaintiff no-fault insurer’s "excess clause” clearly indicated that benefits were not available if there was other insurance. On the other hand, the Court ruled that the defendant’s "excess clause” only provided that its benefits "may be reduced” if other insurance was available. In addition, defendant’s policy was unclear as to whether the claimant must merely qualify for or actually receive other benefits for the coodination-of-benefits provision to operate. Because of the clarity of plaintiff’s excess clause, coupled with the ambiguity contained in defendant’s, this Court concluded that the defendant should be held primarily liable. No reliance was placed on Farm Bureau, supra, or Mary Free Bed, supra.
In Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 135 Mich App 76; 351 NW2d 900 (1984), plaintiff was the claimant’s no-fault insurance carrier at the time of the injury. The defendant provided the claimant with health insurance under a group policy. Plaintiff paid the claimant’s medical bills arising out of an automobile accident, but defendant refused to reimburse it for those payments. Both the plaintiff and the defendant claimed that it was a secondary insurer relative to the other. The plaintiff’s insurance contract provided that it would not pay benefits to the extent that benefits were paid or payable for allowable expenses under the provisions of any other insurance. On the basis of this Court’s ruling in Farm Bureau, supra, the Kemper Court ruled that both the plaintiff and the defendant were liable for benefits to the claimant, prorated as to the proportion of the combined policy limits represented by the limits of each insurer’s policy.
While the above-cited cases have reached reasonable results, we choose not to follow them here inasmuch as the legislative history surrounding the enactment of § 3109a does not appear to have been relied upon or addressed in those cases. In their briefs, the instant parties essentially argued various policy considerations in support of their respective positions, neither party seeking the result obtained in Farm Bureau, supra, and Kemper, supra, which prorated liability based on policy limits. At oral argument, however, plaintiff cited this Court’s decision in Dean v Auto Club Ins Ass’n, 139 Mich App 266; 362 NW2d 247 (1984), which extensively discussed the legislative history of § 3109a. In reviewing this history as discussed in Dean, supra, and in LeBlanc v State Farm, supra, and Nyquist v Aetna, supra, we conclude that it evinces a clear legislative intent that the no-fault insurer provide only secondary coverage under § 3109a.
1974 House Bill 5724 was enacted into 1974 PA 72, the present MCL 500.3109a: MSA 24.13109(1). The analysis of HB 5724 prepared by the House Insurance Committee set forth several arguments in support of, and in opposition to, the bill. Each argument, however, proceeded from the premise that the coordination of benefits envisioned by the bill would make health and accident insurance, including that provided by Blue Cross & Blue Shield of Michigan, the primary coverage. The following concerns were expressed (and positions taken) in the analysis with respect to § 3109a:
"Background Information:
"Currently 4 of the 283 auto insurance companies doing business in Michigan offer deductibles or exclusions which cover only those items not covered by the policy holder’s health and accident insurance. (These 4 auto-insurers offer the secondary or 'wrap-around’ coverage.)
"Last September, Blue Cross/Blue Shield filed modifications with the Insurance Bureau proposing to allow its members to coordinate their medical benefits with their auto coverage by making the no-fault coverage primary and the Blues coverage wrap-around or the secondary coverage.
"Argument For:
"The bill would save millions of dollars for Michigan drivers and would offer them an opportunity to eliminate their duplicate, overlapping insurance coverage since automobile insurers would be required to offer deductibles or exclusions which wrap-around a policy holder’s health and accident coverage. No-fault insurers would offer these deductions at reduced premiums, and State insurance officials estimate the 5 to 6 million Michigan drivers could save $100 million annually.
"Argument For:
"Passage of the bill would create more flexibility in health and accident coverage by offering consumers an insurance option which the vast majority of underwriters operating in Michigan do not offer. Further, if the Blue Cross/Blue Shield plans gain approval for their proposed modifications, the consumer seeking health and accident coverage will have yet another option from which to choose. The bill does not make it mandatory for an insurance buyer to select these deductibles and exlusions so many could still opt for overlapping coverage.
"Argument For:
"The skyrocketing hospital and medical costs could be contained to a greater extent with health and accident as the primary coverage since these policies, like the Blue Cross/Blue Shield plans, have established limits on their reimbursement of doctor and hospital expenses. A physician who knows his or her patient has unlimited medical coverage has no incentive to keep the doctor bill at a minimum.
"Argument Against:
"The efficiency and ease with which the no-fault statutes have been applied would be hampered by the bill, and insurance premiums could actually rise rather than decline. In lieu of automatic, fully comprehensive coverage by the auto insurer (under no-fault), under the proposed wrap-around deductibles, both the no-fault insurer and the health and accident company would be required to devote extra time and money to investigate an accident claim. They would have to reach an agreement to the extent to which each is responsible to the injured person. The rapid simplified reparations which have thus far characterized no-fault settlements would be bogged down by this process of double investigation and adjustment.
"Argument Against:
"No-fault insurers would be unable to establish fair and equitable rates since the multitude of wrap-around combinations would make it impossible to determine a schedule for the proposed deductibles and exclusions. No-fault is only 4 months old and insurance companies have yet to accumulate enough data to establish those premiums confidently. Spokesmen for the industry claim 18 months of data are necessary for the establishment of accurate premiums for a specific no-fault policy.
"Argument Against:
"Required secondary coverage by no-fault providers raises many ambiguities concerning the insurance statutes since no-fault is, by law, a mandatory requirement. Persons who reduce their no-fault medical coverage and then change jobs, or become unemployed, or those who misrepresent their accident and health coverage could be left without the minimum coverage required by the no-fault statutes.
"Argument Against:
"Primary coverage by health and accident insurers would weaken the coverage on many persons and would serve to confuse policyholders since it would substitute unknown, variable, noncompulsory benefits for compulsory, definitive and standardized benefits. No-fault is specifically designed to cover automobile accidents and injuries, offering the same basic coverage for everyone, but the accident and health insurers as well as Blue Cross/Blue Shield provide a puzzling number of alternative coverages, none of which are [sic] as complete and comprehensive as those of no-fault.
"Argument Against:
"The bill discriminates against auto personal injury protection (no-fault) insurers since it does not require the accident and health insurers or Blue Cross/Blue Shield plans to offer similar deductibles to persons desiring to make their comprehensive no-fault policies primary, with other coverages being secondary. If the intent of the bill is to save money for the consumer by offering a maximum of alternatives at reduced premiums, then health carriers should also be compelled to offer wrap-around coverage. If accident and health coverage were made secondary, the reduction in premiums would be much larger, particularly for persons whose policies include coverage for many dependents.
"Neutral Discussion (Proposed Amendments):
"The Michigan Association of Insurance Companies suggests offering consumers another alternative by requiring health and accident insurers (by statute) to offer at reduced rates, deductibles and exclusions to persons already covered under no-fault.” (Emphasis added.)
As is manifest from the legislative analysis, § 3109a was intended to offer an option to no-fault consumers to allow them to make their no-fault coverage secondary. We find this conclusion inescapable from the concerns expressed.
Furthermore, a letter to Governor William G. Milliken from Daniel J. Demlow, the Commissioner of Insurance, dated February 26, 1974, also evinces a similar understanding as to HB 5724. Therein the commissioner noted that the "bill gives each consumer the chance to select or reject deductibles based on his existing non-automotive health and accident coverage”. (Emphasis added.) This statement makes sense only if health and accident insurance is considered primary.
Additionally, the Supreme Court in LeBlanc, supra, pp 202-203, had the following to say concerning the above analysis of HB 5724:
"The anaylsis of HB 5724 prepared by the House Insurance Committee indicates that the bill would eliminate duplicate coverage by making private accident and health insurance, as well as the group plans of Blue Cross and Blue Shield, primary sources of reimbursement for accident-related medical and hospital expense.” (Emphasis added.)
As further support for this conclusion, we look to the general purpose of § 3109a. It has been stated that § 3109a was designed to "contain or reduce insurance costs”, LeBlanc, supra, p 197, and "was * * * concerned with the rising cost of health care”. Dean, supra, p 273. These two objectives are best fulfilled where health and accident insurance is primary, since, as noted in the analysis, "these policies, like Blue Cross/Blue Shield plans, have established limits on their reimbursement of doctor and hospital expenses”. By contrast, expenses paid by no-fault insurance are subject to no such limits. To effectuate the intent of the Legislature in containing insurance costs in general, and health care costs in particular, health and accident insurance must be deemed primary.
In the instant case, we are unaware of the complete nature of defendant’s policy. The lower court record contains only an excerpt of the page of defendant’s policy on which the coordination-of-benefits clause is placed. Defendant advances no statutory support for its attempt to make no-fault coverage primary, nor is there evidence on the record that the approval of the Insurance Commissioner has been requested or granted with respect to this clause. There is further no evidence that defendant’s coordination-of-benefits clause was offered in such a way as to foster consumer savings, a major goal of § 3109a, see analysis on HB 5724, supra, or as to how premiums or employee co-pay were affected by this clause to insure that defendant is not reaping unearned premiums. That is, because no-fault is mandatory and coordination of benefits must be offered at a reduced rate, the insured gains an advantage from such a clause by the required reduction in premium while the insurer’s reduced profits reflect a corresponding reduction in its potential liability. No such check necessarily applies to health and accident insurance. It would not be difficult to simply insert a coordination-of-benefits clause in a health and accident policy without a corresponding reduction in premium or co-pay where the determination of primary liability is governed by the policy language.
In an area such as no-fault insurance and, for that matter, health insurance as well, where the regulatory scheme established by the Legislature is of such a pervasive nature, we agree with plaintiff that the clarity of policy language should not govern apportionment of liability.
Reversed and remanded for entry of judgment and determination of liability consistent with this opinion. No costs, a question of public significance being involved.
See LeBlanc v State Farm, supra, pp 194-195, for further excerpts of this letter.
Defendant’s coordination-of-benefits clause provides:
"Section 23
"Co-ordination of Benefits
"In addition to the benefits payable under this plan, sometimes an employee or dependent is entitled to benefits for the same hospital or medical expenses under group fault or no-fault auto insurance, individual no-fault auto insurance, medicare or another group plan. Should this type of duplication occur, the benefits under this plan will be co-ordinated so that the total benefits from all plans will not exceed the hospital or medical expenses actually incurred. In all cases employees with no-fault auto insurance coverage, the auto insurance carrier will be primary.”
We note parenthetically that 1984 PA 64, MCL 550.251 et seq.; MSA 24.13671 et seq., the Coordination of Benefits Act, in conjuction with 1984 PA 65 through 70, addresses the problem of overlapping benefits (and the coordination thereof) among group health policies. These acts provided for a standardized order of benefit determination among such group health policies in the areas of group disability (Act 65, MCI 500.3609a et seq.; MSA 24.13609 [1] et seq.), group policies of a health care corporation (Act 66, MCL 550.1401 et seq.; MSA 24.660 [401] et seq.), group policies of a medical care corporation (Act 67, MCL 550.313b; MSA 24.603[2]), group policies of a hospital service corporation (Act 68, MCL 550.510b; MSA 24.630[2]), the policies of health maintenance organizations (Act 69, MCL 333.21074; MSA 14.15 [21074]), and of dental care corporations (Act 70, MCL 550.369a; MSA 24.650[19a]). Section 2(i) of 1984 PA 64, however, defines "pol icy” in such a way (I.e., "a group disability insurance policy”,) that no-fault insurance is not included. The analysis performed on 1984 Senate Bill 363 (enacted into 1984 PA 64) by the Senate Commerce Committee is also silent as to no-fault insurance.
See Siller v Employers Ins of Wausau, 123 Mich App 140, 142; 333 NW2d 197 (1983). It is also noteworthy that MCL 500.3438, 500.3440; MSA 24.13438, 24.13440, which provide for the coordination of benefits in certain insurance contracts, similarly do not apply to no-fault insurance by virtue of MCL 500.3400(4); MSA 24.13400(4) and MCL 500.3600(1); MSA 24.13600(1). In view of the pervasiveness of the regulatory scheme existing with respect to coordination of benefits as contained in these sections, as well as those sections discussed in note 3, supra, in concert with the legislative history pertaining to 1974 PA 72, we believe that the new legislation’s failure to coordinate such group health insurance with no-fault (and the similar failure of MCL 500.3438, 500.3440; MSA 24.13438, 24.13440) serves to indicate that no-fault coverage may not be made primary, i.e., it is to be coordinated solely under the direction of § 3109a of the no-fault act.
The result reached in this case is not necessarily in conflict with existing case law. As noted earlier, Farm Bureau v Horace Mann, supra, and Mary Free Bed v INA, supra, did not deal with no-fault insurance. U S Fidelity v GHP, supra, while dealing with no-fault, did not involve conflicting clauses. And, although Kemper v Health Ins, supra, appears to be inconsistent, there is no indication that the parties raised the issue of legislative intent. Both parties ostensibly argued the respective provisions in the insurance policies. In the case sub judice, however, plaintiff touched upon the relevant policy considerations in its brief and, at oral argument, specifically raised the intent of the Legislature as discussed in Dean v Auto Club, supra. | [
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Per Curiam.
Plaintiff commenced an action for injuries sustained in an April 6, 1978, automobile accident. The case came on for trial before a jury in April, 1984. At the close of all medical proofs on the threshold issue of serious impairment of body function, defendant moved for a directed verdict. The trial court granted the motion, concluding that plaintiff had not met the threshold. Plaintiff appeals as of right.
I
The record discloses the following. Plaintiff was stopped at a red light late in the evening when her car was rear-ended by defendant’s car. Plaintiff hit the steering wheel, then her seat tore loose from its tracks and her head hit the rear window. The car was totaled — the roof buckled, the gas tank ruptured and the frame was bent so badly that the rear wheels were lifted off the ground. While defendant was incoherent and was taken to a hospital by ambulance, plaintiff appeared to the police who arrived at the scene to be uninjured.
The police drove plaintiff to the hospital, where she was x-rayed, given a soft cervical neck brace and a prescription, and released with instructions to see her family physician the next day. Plaintiff returned to the hospital the following day for more x-rays and then went to her doctor. She visited her doctor thrice weekly for three weeks and received ultrasound treatments, muscle-relaxant shots, tranquilizers and pain killers. Plaintiff then sought the services of a chiropractor but quit that after ten visits, feeling no better. On July 4, 1978, plaintiff’s left arm went numb, so the next day she went to Dr. Vaitas, who in turn sent her to a physical therapist. From July, 1978, until February, 1979, plaintiff received therapy about five times weekly. Feeling that her condition was wors ening, plaintiff went to Dr. Berke, a neurologist, in December, 1978. Dr. Berke saw plaintiff monthly from May, 1979, to March, 1981.
Plaintiff testified that she and her husband were athletic, outdoorsy types but, after the accident, she was in constant pain and unable to engage in any demanding physical activity. Consequently, her marriage deteriorated to the point that her husband left her in favor of a more active female companion.
Plaintiff’s job as a manager of a bowling center ended July 4, 1978, because she could not work on a consistent basis. For approximately six weeks in 1983, plaintiff worked three to four days a week as a waitress, but she quit that job because the stress of trying to care for her children and trying to work in her condition was too great.
Plaintiff testified that she did vacuuming and light housework at home, that she got up in the morning with her children and got them ready for school and that in the evening her children gave her backrubs. She had the children doing their own laundry and dishes. She took medication: a slight tranquilizer with muscle relaxant and, periodically, an analgesic.
Plaintiff described her injuries as continuing pain in the back, including the lower back, and the neck, with shooting pains radiating into her legs and occasional numbness in her left arm. Plaintiff said that she had considerable muscle spasms continually in her back, lower back and shoulders. She also claimed that her neck muscles were soft so that, if she turned her head really sharply or too far, she experienced excruciating pain.
II
In reviewing the grant of defendant’s motion for directed verdict, we view the evidence in a light most favorable to plaintiff. Factual disputes regarding the extent or nature of plaintiff’s injury may thus be rendered immaterial, enabling us to decide as a matter of law whether plaintiff has failed to make the threshold showing of serious impairment of body function. Cassidy v McGovern, 415 Mich 483, 502; 330 NW2d 22 (1982), reh den 417 Mich 1104 (1983); Argenta v Shahan, 135 Mich App 477, 488; 354 NW2d 796 (1984), lv granted 421 Mich 858 (1985).
In Cassidy, supra, the Supreme Court established several standards for the courts to use in determining if an alleged injury constitutes serious impairment of body function. The impairment must be of an important body function, 415 Mich 504, and must be determined in light of "the effect of an injury on the person’s general ability to live a normal life”. 415 Mich 505. Permanency of an injury is relevant but not necessary to a finding of serious impairment. 415 Mich 505-506. Also, the injury must be objectively manifested. 415 Mich 505.
The threshold of serious impairment of body function is a significant obstacle to a tort action for noneconomic loss. The Legislature intended to retain the tort remedy for the catastrophically injured. Workman v DAIIE, 404 Mich 477, 509; 274 NW2d 373 (1979). As an aid in setting the serious impairment threshold at the proper level, the courts are to consider the threshold in conjunction with the other threshold requirements of death and permanent serious disfigurement, Cassidy, supra, p 503, and with the legislative reasons for limiting the recovery for noneconomic losses. 415 Mich 500, Braden v Lee, 133 Mich App 215, 217; 348 NW2d 63 (1984).
A
The circuit court did not clearly explain its reason for concluding that plaintiff had not established the threshold for recovery of noneconomic damages. It appears that the court relied, at least in part, on a perceived failure by plaintiff to claim that her injuries were indeed objectively manifested. Plaintiff points to testimony at trial regarding muscle spasms and scarring. We will discuss these claims of injury as well as others made at trial in order to give a more complete picture of plaintiff’s condition and of the state of the law at this time.
Plaintiff’s injury is admittedly one of the "soft tissue” variety. The no-fault act makes no distinction between persons with soft-tissue injuries and those with other injuries. Vreeland v Wayman, 141 Mich App 574; 367 NW2d 362 (1985). Nevertheless, the Cassidy requirement that an injury be objectively manifested has proved especially difficult for persons with soft-tissue injuries to satisfy. In this case, for instance, the battery of tests administered to plaintiff included x-rays, a myelogram, an electromyogram, a CAT scan and an electroencephalogram. These tests proved negative, ruling out bone or nerve damage. The tests were not, however, probative of injury to muscles, tendons and ligaments.
Plaintiff testified that her body hurt her like she had a bad toothache all over and that she felt increased pain upon or after engaging in physical activities. This sort of evidence is always present in tort actions for pain and suffering and could not have been intended by the Legislative as satisfying the threshold. Williams v Payne, 131 Mich App 403, 410; 346 NW2d 564 (1984). "Recovery for pain and suffering is not predicated on serious pain and suffering.” Cassidy, supra, p 505.
Dr. Vaitas and Dr. Berke testified on plaintiff's behalf that they found tenderness over areas of plaintiff’s back. Dr. Vaitas acknowledged on cross-examination that tenderness is a subjective complaint and the doctor must rely on what the patient says with regard to pain. Thus, the medical findings of tenderness do not rise to the level of objective manifestation. Flemings v Jenkins, 138 Mich App 788, 790; 360 NW2d 298 (1984).
Dr. Berke testified on plaintiff’s behalf that he found limited range of motion of plaintiff’s neck and back. On cross-examination, Dr. Berke described the testing as "active” testing, meaning that plaintiff did the bending and it was in her control when to stop the motion. Since the doctor’s findings do not show that plaintiff’s limited flexion was anything more than a limitation self-imposed because of real or perceived pain, we do not accept the findings as objective manifestation of injury. Salim v Shepler, 142 Mich App 145; 369 NW2d 282 (1985). In contrast, we note that this Court in Argenta, supra, p 488, found objective manifestation of injury where the medical witness had used a "passive” range of motion test described as "totally objective”.
Dr. Vaitas also testified regarding scarring. On the facts of this case, we conclude that no objective manifestation of injury was shown. Dr. Vaitas assumed, based on plaintiff’s history, condition and complaints, that plaintiff had suffered extensive soft tissue injuries. Such injuries inescapably involved stretching, pulling or other damage to nerves, muscles and ligaments, he said, and in turn, science assumes some tearing and microscopic bleeding which leads to permanent scarring. However, Dr. Vaitas did not testify that he felt, saw or tested objectively for scarring. We do not accept his chain of assumptions as establishing objective manifestation of injury.
Dr. Vaitas testified that plaintiff complained of frequent spasms of the neck and back. His examination revealed spasms located mostly in the upper shoulder areas and the neck. He described a spasm as a swelling or shortening of the muscle. He explained that, when the muscle mass contracts, it leaves a hump which can be felt by the examiner. From this testimony, we are persuaded that the finding of muscle spasms is an objective manifestation of injury. To the extent that Flemings, supra, expresses or implies otherwise, we disagree with that opinion.
Dr. Berke also testified regarding muscle spasms. In his examinations of plaintiff in June and July, 1979, he found no spasms. In August, 1979, he did not record a finding as to spasms but in September, 1979, he found grade one spasms. Dr. Berke explained that spasms are objective findings determined through the senses of the examiner and are graded on a scale of zero to four, zero being normal, one being minimal abnormality and four being maximum abnormality. Dr. Berke’s testimony thus supports our conclusion that objective manifestation of injury has been shown by evidence of muscle spasms.
"Recovery for pain and suffering is * * * predicated * * * on injuries that affect the functioning of the body.” Cassidy, supra, p 505. It is not enough merely to show an injury; that injury must be related to impairment of an important body function. In this case, Dr. Berke stated that the muscle spasms could have had something to do with a slight straightening of plaintiff’s spine, but he did not state what effect, if any, the straightening had on plaintiff’s body function. Nor did he otherwise state what effect muscle spasms would have on plaintiffs body function. Neither did Dr. Vaitas. The only thing that plaintiff has shown to affect body function is her own complaints of pain. Accordingly, we hold that plaintiff has not satisfied the threshold for recovery of noneconomic damages because she has not shown an objectively manifested injury constituting serious impairment of body function.
B
Even assuming that we can infer that plaintiff’s muscle spasms affected an important body function, we do not find that plaintiff has established the seriousness requirement.
Dr. Vaitas was of the opinion that plaintiff was suffering from a moderate soft tissue injury. Dr. Berke concluded that plaintiff had a disability from lifting, bending and twisting with a 20 to 25 pound weightlifting restriction. There was no testimony, though, that plaintiff was prohibited from engaging in work or social activities. Sherrell v Bugaski, 140 Mich App 708, 711; 364 NW2d 684 (1984). Dr. Berke believed there was a psychological component to plaintiff’s injury.
It is clear that plaintiff sets her own limits for many of her activities. Braden, supra, p 218. As she said about bowling, she quit because she knew that, when she bowled, she would suffer later. She does housework but limits the amount by having her children do their own laundry and dishes. While plaintiff’s testimony indicates a significant change in her normal life style — an athletic, outdoors one — we believe that she has the general ability to live what can objectively be termed a normal life. Cassidy, supra, p 505, Routley v Dault, 140 Mich App 190, 194; 363 NW2d 450 (1984), lv granted 422 Mich 935 (1985).
The fact that plaintiff quit her jobs as bowling center manager and waitress because of the physical activity involved "does not change the intrinsic nature or extent of the injury”. Routley, supra, p 195.
"The seriousness of the injury must be determined by an objective evaluation of its effect on the person’s body functions and the ability to perform common day-to-day activities, and not by extrinsic considerations such as the nature of the person’s employment.” Id.
Nor are we persuaded that plaintiff’s reduction in social activites objectively establishes seriousness. In Kucera v Norton, 140 Mich App 156, 159; 363 NW2d 11 (1984), the plaintiff allegedly could not ski, snowmobile or hunt as he could before the injury, but this Court concluded that the injury could not be considered on a par with death or serious permanent disfigurement.
Ill
We conclude as a matter of law that plaintiff has not shown an injury that affects an important body function or a serious impairment of a body function. Accordingly, we affirm the circuit court’s grant of a directed verdict in defendant’s favor on the basis that plaintiff failed to make the threshold showing of serious impairment of body function in order to recover noneconomic damages under MCL 500.3135; MSA 24.13135.
Affirmed. | [
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Shepherd, J.
This matter is before us pursuant to a remand order by the Supreme Court "for consideration as on leave granted of appellant’s argument that the probate judge should have removed the appellee [Sylvia Clark] from her position as temporary personal representative” of the estate. 419 Mich 915; 353 NW2d 115 (1984). We reverse and remand for appointment of an independent temporary personal representative.
The appellant married Edwina Derek, now deceased, in 1971. Ten years later, Edwina Derek moved to her sister’s (appellee’s) home after undergoing brain surgery. Mrs. Derek commenced a divorce action, but died during the pendency of that action.
Several weeks later, appellant filed suit in Ma-comb County Circuit Court, alleging that appellee and her husband had fraudulently obtained title to various marital assets of the Dereks. That action is still pending.
Eight months later, appellant petitioned the Jackson County Probate Court to commence the probate of his late wife’s estate. Appellant prayed for appointment of an independent personal representative, stating, "[T]he estate of Edwina Derek must proceed against Sylvia Clark” in the circuit court action.
The probate court named appellee as temporary personal representative. Mrs. Derek had named appellee as fiduciary in her will. Appellant subsequently petitioned for appellee’s removal. The probate court denied the petition, concluding that because there were no assets currently in the estate and because there would be none unless appellant’s circuit court action was successful there was no present need to remove appellee. The probate court reasoned that, if the allegedly fraudulent transfers were set aside by the circuit court, the probate court could again address the petition for removal. Conversely, if appellant obtained no relief in circuit court, the probate court would close the estate for lack of assets.
This Court denied appellant’s application for leave to appeal. Appellant pursued the matter to the Supreme Court, which ordered consideration of the issue "as on leave granted”. 419 Mich 915.
We believe the probate court should have granted the petition for removal of appellee and appointment of an independent temporary personal representative.
The probate court may, for "good cause”, ap point a temporary personal representative "to act in collecting and taking charge of the estate of the deceased and protecting and conserving it until a personal representative is appointed”. MCL 700.174; MSA 27.5174. A temporary personal representative "may commence and maintain actions as personal representative”. MCL 700.175; MSA 27.5175; Wright v Brown, 317 Mich 561, 570; 27 NW2d 97 (1947); St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210, 212; 238 NW2d 806 (1975), Iv den 396 Mich 864 (1976). Under MCL 700.175, "the same proceedings [may be] taken with regard to those actions as are provided by law in cases where a personal representative is appointed”.
It is clear that the Revised Probate Code and Michigan cases authorize a temporary personal representative to commence an action for recovery of estate assets. We also believe that a temporary personal representative may join an action commenced by another interested party, such as the appellant in this case, for recovery of assets which allegedly belong in the estate. In the instant case, however, the appointment of appellee as temporary personal representative forecloses this option. Appellee, a defendant in the circuit court action, lacks the incentive to join the estate as a plaintiff in that action, even if it is necessary to a vigorous pursuit of the interests of the estate.
Appellee argues, and the probate court concluded, that this obvious conflict of interest is of no present significance because there are no assets in the estate other than the possible recovery in circuit court. We disagree with this reasoning. If there is no "good cause” for appointment of an independent temporary personal representative, MCL 700.174, then there is even less cause for appointment of a temporary personal representa tive whose interests are possibly inimical to those of the estate. We conclude that the estate’s interests would be enhanced by appointment of an independent representative, who would then make a fair assessment of what position the estate should take, if any, in the circuit court matter.
"Conduct frequently mentioned in justification of a fiduciary’s removal is his personal claim to money or property alleged by others to be assets of the estate.” 31 Am Jur 2d, Executors and Administrators, § 114, p 75 (citations omitted). We believe this is also true where the fiduciary has already obtained assets which others claim belong to the estate. In this case, the temporary personal representative’s interests prevent her from making a sound decision (from the point of view of the estate’s interests) with respect to the conflicting claims. In contrast, an independent temporary personal representative would be better able to pursue the estate’s interest than the other interested party who commenced the circuit court action.
Furthermore, an independent personal representative would have both the motivation and the capacity to obtain documents and other data, unimpeded by self-interest and by the limitations of the discovery rules applicable in the circuit court action. We can visualize a scenario where the plaintiff in the circuit court would seek discovery which the defendant, in her own self-interest, would seek to frustrate. The existence of an independent personal representative would contribute to an elimination of this kind of maneuvering and would clearly eliminate the potential conflict of interest in this situation between the estate and the defendant.
The interests of the estate are paramount. In re Abramovitz’ Estate, 278 Mich 271, 275; 270 NW 294 (1936). We reverse the probate court’s decision and remand for appointment of an independent temporary personal representative.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Per Curiam.
Plaintiff, Lucinda Marie Bohman, appeals as of right from an order granting accelerated judgment to defendant, Dan Carl Boyce, pursuant to GCR 1963, 116 [now MCR 2.116], on the ground that the trial court lacked jurisdiction in this case to determine paternity under the provisions of the Child Custody Act of 1970.
Plaintiff’s petition alleged that defendant was the natural father of her daughter, Holly Michelle Bohman, born November 19, 1981. When her daughter was conceived, plaintiff was married to another man; however, he and plaintiff were divorced before Holly was born. According to plaintiff, no mention was made of the then-unborn child in the judgment of divorce. Holly has lived with plaintiff in Reed City, Michigan, since her birth.
MCL 722.27; MSA 25.312(7) provides that:
"If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from another action in a circuit court or another or judgment of a circuit court, for the best interests of the child the court may:* * *.” (Emphasis added.)
In the within case, no "child custody dispute” has been presented. Plaintiffs daughter lives with her and neither defendant no any other party seeks custody of the child. We agree that paternity may sometimes be determined in a proper custody case. But a circuit court has no jurisdiction to determine paternity under the Child Custody Act where no colorable custody dispute exists. In such a situation, the Paternity Act is the only avenue for relief.
Affirmed.
MCL 722.21, et seq.; MSA 25.312(1), et seq.
According to plaintiffs brief, on April 1, 1983, plaintiff filed an action based on the Paternity Act, MCL 722.711, et seq.; MSA 25.491, et seq. However, accelerated judgment was granted to defendant in that action because the court apparently concluded that the child was not born out of wedlock, as required for relief under the Paternity Act. We express no view on the propriety of that determination on these facts. However, see Smith v Robbins, 91 Mich App 284; 283 NW2d 725 (1979), lv den 408 Mich 853 (1980); Syrkowski v Appleyard, 420 Mich 367, 373-374; 362 NW2d 211 (1985); In re Flynn, 130 Mich App 740, 754-755; 344 NW2d 352 (1983); MCL 722.711(a); MSA 25.491(1).
See Winsett v Donaldson, 69 Mich App 36,39; 244 NW2d 355 (1976); Raleigh v Watkins, 97 Mich App 258, 260; 293 NW2d 789 (1980); but see Pizana v Jones, 127 Mich App 123, 127; 339 NW2d 1 (1983). | [
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Cooley, J.
"We are asked in this case to issue the writ of mandamus directed to the respondent, who is sheriff of the county of Marquette, commanding him to serve a warrant for the arrest of one William W. Wheaton on a charge of perjury, and for his conveyance before one O’Keefe, a justice of the peace of said county, to be dealt with according to law. The facts of the case are so peculiar that it seems desirable to recite them with more fulness and particularity than is commonly deemed essential.
The warrant was issued November 25, 1879, and delivered to the sheriff on or about the tenth day of December following. The sheriff in response to the application for the writ of mandamus says that:
“ Before the warrant was placed in his hands, respondent spoke to J. Q. Adams, prosecuting attorney for Marquette county, about the execution of the same; and said Adams told him to arrest said Wheaton, as soon as security for costs was filed with the justice.
“ A short time after receiving the warrant, which was soon after such security was filed, respondent saw said Adams, told him he had the warrant, and asked him what he should do. Adams then told him that he had examined the warrant, and complaint, with said Mapes; that they were all regular and straight. But that he wanted the money put up as security, instead of a bond, and to delay the service until the money was deposited, and that one hundred and fifty dollars was the amount that he wanted.
“After a time, Luther Beecher’s check, on a Detroit hank, the name of which he does not remember, was sent to respondent, payable to the order of said Adams. And said respondent thinks the same was certified, but is not positive. But there was a condition written on the check, that it was given to secure the bond filed. This was not satisfactory to said Adams. ITe wanted the money deposited with the county clerk, to indemnify the county against loss, and told respondent, that as soon as he (respondent) became satisfied that the money was deposited, that he should make the arrest.
“Despondent returned the check to the drawer of the same, and then the money was deposited.
“ When respondent became satisfied that the money was deposited, he went to Detroit, and arrested said Wheaton, on or about the sixth day of February, A. D. 1880, in a store, near the city hall, at about ten o’clock in the forenoon. That he went from there to the office of Griffin & Dickinson, attorneys, with said Wheaton, at his request, where they saw both of said attorneys. The attorneys told said respondent, and said Wheaton, that respondent could not take him through another State, to reach Marquette county, and told Wheaton to use violence in resisting any detention after leaving this State.
“ Respondent then told Wheaton and his attorneys that if he could not take him through another State, he would have to take him through Michigan, by way of Mackinac.
“ They then proposed to give bonds for the appearance of Wheaton, at Marquette. Respondent and his 'advisers were uncertain whether such bonds could be accepted ; and Mr. Griffin went off, as he said, to consult one of the judges of the Supreme Court; returned, after a time, and said that the judge was of the opinion that the statute did not provide for such cases, but that the common law might include such a case, and protect the sheriff. This was on Friday. Wheaton then agreed to give bonds the next day for his appearance in Marquette. The next day he refused to give bonds, and respondent told him he should start with him for Marquette that evening. Then his attorneys suggested, that if respondent would stay in Detroit, until the next Tuesday, they would pay his expenses, and then they, and respondent and his attorney, would go to Lansing, where the Supreme Court would be in session. A writ of habeas corpus should be sued out, served on respondent, and a hearing had in the matter at once. This was agreed to by all concerned, and all separated.
“About eleven o’clock Saturday night, respondent received, at the Michigan Exchange, a note from A. H. Mead, stating that ‘Mr. John Q. Adams, of Negaunee, is at the Russell House. If you would like to see him, you can meet him there.’ Respondent started at once for the Russell House, and met said Wheaton on the sidewalk, in front of the same. Wheaton had before this told respondent, that he thought Adams did not know anything about the matter. And when they met on the street, Wheaton said: ‘ Did not I tell you that Adams did not know anything about it, and that you were not acting under his advice.’ Respondent then said: ‘ Either you or Adams are liars,’ and asked where Adams was. W'heaton said he was up in the hotel. Wheaton and respondent went up and saw Adams. Adams then told respondent that he had agreed to release Wheaton, on condition that Wheaton would appear at Marquette, at any time that Adams would call for him. Respondent told Adams of tlie agreement he had made with Wheaton and his attorneys to go to Lansing on the following Tuesday, and that he was not willing to release Wheaton, unless he (Adams) took all the responsibility of the matter upon himself, and that he would see that respondent was paid back the money expended, and for time lost. Adams said he would do so — that he took all responsibility upon himself, and that he had authority, as prosecuting attorney, to do so. Respondent then released Wheaton, and went home. Respondent further says, that he acted in the matter entirely under the instructions of J. Q. Adams, as prosecuting attorney, and that if said Adams had not interfered, respondent would have taken said Wheaton to Lansing, and before the Supreme Court, if a writ of habeas corpus had been procured, and if he had not been released, or a bond given, would have brought him before the justice, as by said warrant he was commanded. Respondent has been ready and willing, at all times, to execute said warrant, if not interfered with, and has no other cause to show in this matter than as hereinbefore stated.”
It thus appears that the respondent raises no question of the sufficiency of the warrant, and that he declines to serve it for no other reason than that the prosecuting attorney of the county instructs him not to do so. His recital of facts makes out a somewhat extraordinary case of interference on the part of the prosecuting attorney, but it is possible that if we had his explanation it would assume a somewhat different aspect. In mandamus cases, however, the party interested is permitted to be heard in resisting the application, and in this case the counsel for Mr. Wheaton have not only contended that the sheriff was justified in obeying the direction of the prosecuting attorney, if not bonnd to obey it, but they have insisted further that the warrant was invalid, so that the sheriff would have been a trespasser had he assumed to execute it. This last is the point mostly relied upon.
It is not claimed — nor can it be with any plausibility— that the prosecuting attorney has a right at discretion to stop all criminal prosecutions instituted before justices of the peace. The statute gives no such power. It requires him to “ appear for the State or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications, and motions whether civil or criminal, in which the State or county may be a party or interested.” Comp. L. § 529. But by “tlie courts of the county” is evidently intended the courts of record only; for by the next section he is required to appear to prosecute complaints before a magistrate only when the magistrate requests it. No doubt when he appears the magistrate should govern his official action somewhat by his advice: he certainly ought very seldom to hold a party to bail or to convict him on trial when the prosecuting attorney in good faith advises him that no crime is made out. It would be proper, also, in many cases that he should seek the advice of the prosecuting attorney in advance of the issue of any warrant, and refuse a warrant even when the complainant is able to make primaa facie showing of a technical offense, if the prosecuting a^orney is of opinion that the case would fail on full hearing, or that the criminal intent was so far wanting that the cause of justice would not be advanced by the prosecution.
But in this case it does not appear that the magistrate had called upon the prosecuting attorney for his assistance. A warrant had been issued and placed in the hands of the sheriff, and if it was valid in point of law, it had become the duty of the sheriff to execute it. The action of the sheriff could not in any manner be restrained or controlled by the prosecuting attorney; he might with great propriety take his advice in a case where he was in doubt what his duty required of him, but if the advice proved to be erroneous, it would not relieve him from responsibility if, in following it, a duty enjoined by law failed of performance.
"We must see, then, whether the sheriff in this case had in his hands a warrant which it was his clear duty to obey.
. The warrant recited that one John Simmons had made complaint to the justice in writing and on oath
“ That heretofore, to wit, on the 10th day of September, A. D. 1878, at the city of Marquette in the county aforesaid, Luther Beecher did exhibit his bill of complaint in writing against the Marquette & Pacific Polling Mill Company, a corporation organized and existing under the general mining and manufacturing laws of the State of Michigan and doing business in the said county of Marquette, and having its office for the transaction of business located in the city of Marquette in said county — said corporation in said bill being more particularly described in the circuit court for the county of Marquette in chancery. And the said Luther Beecher in and by his said bill of complaint, among other things stated and alleged in substance, and to the effect following, to wit:
“That he, the said complainant, was a stockholder and owner of a portion of the capital stock of said corporation defendant. That said defendant was, and for a long time previous thereto had been, carrying on the business of mining and selling iron ore, having its works and mines in said county of Marquette; and had in its employ a large number of laborers, workmen and servants, for hire, in and about its said business; and that the stockholders were and were becoming personally liable to such laborers, workmen and servants, for their services performed and to be performed in and about the business of said corporation; and that the said corporation was insolvent; had not and was unable to pay its laborers, workmen and servants, and was not then paying the same for the labor and services performed, and being performed, in and about the business of said defendant, as aforesaid, as in' and by the said bill of complaint of the said Luther Beecher, duly verified, remaining filed of record, in the said circuit court for the county of Marquette, in chancery, among the other things more fully appears.
“ That William W. Wheaton, general manager of said corporation defendant, afterwards, that is, to say, on the 16th day of September, A. D. 1878, at the city of Marquette, in the county of Marquette, aforesaid, did come, in his own proper person, before Herman E. Pearce, a notary public, in and for said county of Marquette, duly commissioned, and then and there did exhibit and produce to the said Herman E. Pearce, Esq., then and there, a notary public as aforesaid, the answer, in writing, of the said Marquette & Pacific Polling Mill Company to said bill of complaint,” “subscribed by him, the said William W. Wheaton. And the said William W. Wheaton was then and there sworn in due form of law,-and took his corporal oath touching and concerning the matters stated and contained in the said answer, by and before the said Herman E. Pearce so then and there being a notary public in and for said connty of Marquette, and then and there having sufficient power and authority to administer an oath to the said William W. Wheaton in that behalf, and that the said William W. Wheaton being so sworn as aforesaid,' and being then and there lawfully authorized and required to declare and depose the truth in a proceeding in a court of justice, did upon his oath aforesaid concerning the matters contained in said answer before the said Herman E. Pearce, Esq., then as aforesaid being a notary public in and for said county of Marquette, then and there swear: that’ the said answer was true, except as to the matters stated therein to be on information and belief, and those he believed to be true; and that the said William W. Wheaton, being so sworn, as aforesaid, intending unjustly to aggrieve the said Luther Beecher, the said complainant, as aforesaid, in his oath aforesaid, to the answer aforesaid, before the said Herman E. Pearce, Esq., being then, as aforesaid, a notary public in and for the county of Marquette, and having sufficient and competent authority, as aforesaid, falsely, knowingly, wilfully and corruptly, by his own act and consent, upon his oath aforesaid, did answer and affirm, among other things, in substance, as follows. That is to say: ‘ That the said defendant (meaning the Marquette & Pacific Eolling Mill Company) was not in possession (meaning in possession of the iron mine of said Marquette & Pacific Eolling Mill Company, at Negaunee, in said county,) and was not engaged in its (meaning the Marquette & Pacific Eolling Mill Company) business of mining and* selling iron ore, and that said defendant (meaning the Marquette & Pacific Eolling Mill Company) did not have in its (meaning the said Marquette and Pacific Eolling Mill Company) employ in and about said business (meaning the business of mining and selling iron ore) a large number of laborers, workmen and servants (meaning persons employed by said Marquette & Pacific Eolling Mill Company in and about its business of mining and selling iron ore), for hire (meaning persons to whom money was agreed to be paid for services performed).’
“ ‘ That the stockholders (meaning the stockholders of the ■Marquette & Pacific Eolling Mill Company, a corporation organized, existing and doing business under the general mining and manufacturing laws of the state of Michigan) were not becoming liable (meaning personally liable as stockholders) to any laborers, workmen or servants, for labor (meaning labor performed for said Marquette & Pacific Rolling Mill Company), or that they (meaning said stockholders) were personally liable for any labor, in case the said Marquette & Pacific Rolling Mill Company should make default in any payment of wages whatsoever.
“ ‘ That said company (meaning the Marquette & Pacific Rolling Mill Company, defendant, as aforesaid) had no workmen, laborers or servants, belonging (meaning employed and hired) in and about said business (meaning the business of said Marquette & Pacific Rolling Mill Company, defendant) of mining iron ore, and selling the same, or any business carried on by said company (meaning said Marquette & Pacific Rolling Mill Company, a corporation, as aforesaid), for which the stockholders of said defendant (meaning said Marquette & Pacific Rolling Mill Company) could in any event become liable (meaning that no persons were employed or working as laborers for said Marquette & Pacific Rolling Mill Company, in and about its business of mining and selling iron ore), as by the said answer of the Marquette ■ & Pacific Rolling Mill Company, defendant, still remaining on file and of record in the circuit court for the county of Marquette in chancery, aforesaid, at the city and county of Marquette aforesaid, among other things appears.’ ”
The recitals then negative the truth of the facts so sworn to by "Wheaton, and conclude as follows: ■ “ That the matters so falsely sworn 'to as hereinbefore stated were material to the issue made by said bill and answer. That the said William W. Wheaton falsely, wickedly and corruptly, in manner and form aforesaid, did commit wilful and corrupt perjury.
This is the complaint as it is recited by the justice in his warrant. The justice goes on to say that “ on examination on oath of the said John Simmons by me the justice of the peace, it appears to me, the said justice of the peace, that said offense has been committed, and there is just cause to suspect the said William W. Wheaton to have been guilty thereof,” and he thereupon commands the arrest.
Does this, complaint show by its recitals a case of perjury % If not, the sheriff may perhaps be excused for declining to serve the warrant. In considering this question, however, we shall look for no technical defects, but shall concede that if all the substantial allegations necessary to make a good complaint are to be found in this, the fact that some of them are not made with the fullness and accuracy required in indictments will be no sufficient reason for a refusal to execute the process. The question is one of substance, not of technical precision, and it is presented to us much as it would be if the accused had been arrested, and had applied for a discharge on habeas corpus.
Perjury is committed “ when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely,, and falsely, in a matter material to the issue or point in question.” 3 Inst. 164; 4 Bl. Com. 137; People v. Fox 25 Mich. 492. By this is meant that the oath must be material: the facts sworn to may be material, and yet the false swearing be no perjury because the oath performed no office in the case, and was wholly unimportant and immaterial. This point is well illustrated, in the case of People v. Fox, just referred to. Fox was informed against for having made a false affidavit in a suit at law pending in the circuit court for the county of Branch wherein he affirmed that one of the defendants in said suit did not execute the obligation sued upon. The fact sworn to was material, but it did not appear from the information that the affidavit was made to be used in the case, or that it actually was used, or that it performed or was to perform any important office whatever in the case. It did not therefore appear that the oath was of any materiality. People v. Gaige 26 Mich. 30 is, if possible, still more directly in point. The alleged perjury was committed in swearing to a bill in chancery. It was averred that the facts sworn to were material, but the information* did not show that the bill was one of a character required by law to be under oath, or that it was sworn to in order to be used as the foundation of any motion or other ajaplication to the court. So far as appeared, therefore, the oath was a merely idle ceremony, and its being taken in the case was of no importance. And it was held in that case that the defect in the information could not be supplied by proof showing that the bill was in fact sworn to in order that it might be used as the foundation for a motion for an injunction.
The alleged perjury in this case consists in swearing to an answer to a bill in chancery filed against a corporation. Wheaton was not a- party defendant, but signed and swore to the answer as general manager of the corporation. A few general principles, it seems to us, must govern the case. The answer of a corporation is not required to be sworn to, but is put in without oath under the corporate seal. Wych v. Meal 3 P. Wms. 310; Dummer v. Chippenham 14 Ves. 245; Haight v. Proprietors, etc., 4 Wash. 301; Vermilyea v. Bank, etc., 1 Paige 37; Baltimore etc. R. R. Co. v. Wheeling 13 Grat. 40. If a discovery is required, individual members of the corporation may be called upon to answer under oath, but for that purpose it is necessary that they be named as defendants in the bill. Brumly v. Westchester etc. Co. 1 Johns. Ch. 366; Buford v. Rucker 4 J. J. Marsh. 551; Dummer v. Chippenham, supra.
The bill in this case does not appear from the complaint to have been a bill for discovery. None of the officers of the defendant corporation was made a party, and therefore none of them was placed in a position demanding from him an answer under oath. It does not appear from the complaint that the answer was to be used for any purpose for which an oath to it could be of any importance. So far as appears, therefore, the oath of Wheaton to the answer was wholly an idle ceremony. The answer was no better with it than without it; it affected the issue in no manner whatever; it strengthened no statement made by the answer, and it made no statement evidence that would not have been evidence without it, and gave no statement weight or force that it would not otherwise have possessed. As an information the complaint would therefore have been fatally defective. People v. Gaige, supra.
But it is said that the actual showing before the justice may have been more full, and may have disclosed the fact that the answer was to be used as evidence in some collateral proceeding or on some motion. This may be admitted, and it may also be admitted that the warrant is not so defective in its allegations as to be void. The fact remains that it is perfectly consistent with all the facts set forth' in the complaint that no perjury has been committed. The application is to compel the sheriff of one of the counties in the Upper Peninsula to serve a warrant in the city of Detroit. The distance is considerable when tbe most direct route can be taken, but tbe warrant could not have been executed at the time the application was made without taking the defendant several hundred miles through other states. When the defendant should be brought before the justice and should move for a discharge on the ground of a defective complaint, he would be entitled to it as a matter of right. Under these circumstances it seems plain that justice does not require the service of this warrant.
It is not improbable that a better complaint could be made if the defendant were to be discharged from this; but if so, it can be made now as well. Indeed it would seem that there had already been sufficient time for that purpose, for it is more than a year since this warrant was issiied.’ We cannot compel the officer to take the defendant several hundred miles on the mere chance that papers now showing by their recitals no crime may be made complete by the proof of facts which do not as yet appear to have been put in evidence before the justice.
The writ of mandamus must be denied.
The other Justices concurred. | [
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Graves, J.
This is an action of ejectment brought by Mrs. Burns for a strip of land a few inches wide in block three (3) on the Thompson farm in the city of Detroit. The dispute hinges on the right position of the boundary between lots thirty-eight and thirty-nine. The plaintiff owns lot thirty-eight and the defendants lot thirty-nine, and she claims that they have encroached upon her lot thirty-eight. The defendants deny this and contend that they have confined their occupancy to the bounds of lot thirty-nine and that the plaintiff is now in fact holding a fraction of that lot against their right.
Thompson, the original proprietor, platted the premises in January, 1852, the survey being made by Mullett. Immediately thereafter the plaintiff’s husband Thomas Burns contracted with Thompson for the purchase of lot thirty-eight and in the spring of 1852 built a house on it which is still there. Thompson subsequently carried out the contract by conveying to Burns, and he deeded to Mr. Gowan who in turn conveyed to the plaintiff. About the time of Burns’ purchase, Mrs. Ockford bought of Thompson lot thirty-nine and in June, 1875, she conveyed to one of the defendants who is her son-in-law. It is therefore seen that the parties’ predecessors in title of the two lots began their holding from the original proprietor immediately after the lots were platted and that their purchases dated very near together.
The evidence was undisputed that at that time the lots were unfenced and that Mullett’s stakes to make the lines and corners were standing, and that Burns and Ockford co-operated in putting up a fence between the two lots on the very line indicated by such stakes. The evidence was also undisputed that during the entire period from the spring of 1852 to June, 1875, when the grant of lot thirty-nine to one of the defendants took place, this original fence, apart from some partial alterations for the purpose of repairs needed, was maintained substantially at the same place and as the line fence between the lots; and that the respective proprietors not only tacitly recognized the line so indicated as the true one, but actually partitioned it into two equal parts in order to apportion and fix the duty and expense requisite to preserve the fence as a boundary, and thenceforward for more than twenty years actually maintained the fence and adhered to the line in accordance with the arrangement. Again, the evidence was uncontradicted that defendants are in possession of some little part of the premises on Burns’ side of that line and claiming title thereto. The quantity can only be determined by a construction of the evidence.
To these facts the defendants opposed evidence to establish two things: First, that the line occupied by the old fence was not the true one; second, that the plaintiff had estopped herself from contending against the line claimed by the defendants.
The evidence relied on to show that the line of the old fence is incorrect consisted of a survey by Mr. Bobinson and his explanation. For the purpose for which it was offered and laid before the jury this survey was of no value, and was entitled to no weight whatever. Its introduction was mis leading. That it should possess any value on the question at issue even under the defendant’s theory, it should have proceeded from some mark or monument identified as a correct one to run and measure from, in executing the search for the line sought. But the survey had no such badge of fitness and credit. It was in substance a float.. The starting point, it is true, was at what was supposed to be a stake actually set by Mullett. But it was on the opposite side of the street and at a considerable distance away, and not shown to belong nor apparently belonging to the immediate plan or local system by which the survey of lots thirty-eight and thirty-nine was regulated and measured, and there is no ground for presuming that it has any such relation to the line in question as to control it or testify to its position.
In regard to the second point the position is, that when Ttobinson shifted the line in his survey for defendants in 1875, and they changed the fence accordingly and constructed a house with the eaves extending beyond the old line, the plaintiff virtually assented. It is needless to recapitulate the evidence relied on as showing this. It had no tendency to prove that the parties concurred in a removal of the line previously acted on. On the contrary, when fairly received, it indicates that the plaintiff and her husband were dissatisfied and that defendants knew it.
But apart from this consideration, if the facts are as they appear in the record, there was no uncertainty about the line to be cleared up and settled, and no room for any parol arrangements. The line was already defined and established by mutual agreement, and acquiescence and consistent occupancy for more than twenty years and no change was practicable without writing : Smith v. Hamilton 20 Mich. 433; Joyce v. Williams 26 Mich. 332 ; Stewart v. Carleton 31 Mich. 270 ; Diehl v. Zanger 39 Mich. 601; Dupont v. Starring 42 Mich. 492. See also Turner v. Baker 64 Mo. 218 ; Terry v. Chandler 16 N. Y. 354 ; Vosburgh v. Teator 32 N. Y. 568 ; Nichol v. Lytle 4 Yerg. 456 ; Gilchrist v. McGee 9 Yerg. 455; Yarborough v. Abernathy Meigs 413.
The learned judge below was led to take a different view and he submitted the case on the theory that the jury might be governed by Nobinson’s survey and might find that the plaintiff was estopped, and the result was a verdict for defendant. According to the case the plaintiff was entitled to recover whatever is held by defendants beyond the old ground line where the fence was originally set.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Campbell, J.
Hunter complained, before a justice of the peace, of Farmer and Driscoll of peaceably entering and forcibly detaining his premises. He prevailed both before the justice and on appeal, where the circuit judge refused to allow the defendants to show a right to the land and directed a verdict for plaintiff.
On the trial plaintiff showed acts of force in keeping him out. He also undertook to show that the contest arose on occasion of his attempt to re-enter on a terminated lease. He seems to have claimed that respondents got in collusively by arrangement with his outgoing tenant.
But they introduced testimony to show that they entered •under a bona fide .claim of title and without any collusion whatever. Hunter could not under his complaint dispute the peaceable nature of their entry. If they entered peaceably and without collusion with Hunter’s tenant, they were not in privity with him, and could not have their claims of right tried in this summary way. If they had title and entered in that way they had a right to continue in possession and Hunter had no claim against them, but would himself have been a trespasser by using force to dispossess them.
The court erred in directing a verdict on facts not admitted, but disputed on the main question involved..
Judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Marston, C. J.
The complainant company seeks to foreclose a mortgage given it upon real estate by the administratrix of Philip Aspinall deceased.
A license was granted by the probate court to the administratrix to mortgage certain property of the deceased, but •“no time or rate per cent., upon the basis of which said mortgage should be executed, was specified in the license.' No report was made by the administratrix to the probate ■court, of her action in mortgaging said property, and the probate court never passed upon the question of time and rate per cent, contained in said mortgage.”
That the statute (2 Comp. L., § 4626) was not complied with, and that this was fatal to the validity of the mortgage, :as such, as decided in Edwards v. Taliafero 34 Mich. 15, must be considered as beyond question.
It is claimed, however, that certain equities exist in favor •of the complainant, under which the mortgage may by the •court be held effectual: among these, the good faith of the •parties; the fact that a mortgage for nearly this amount upon real estate of the deceased, was from moneys received upon •the mortgage in suit paid and discharged, should be considered.
We have carefully considered all the equities presented in favor of the complainant. If a non-compliance with the .statute, § 4626, can thus be avoided, then in all cases where the parties act in good faith, and the money is used to pay •and discharge debts of the deceased, it becomes a dead letter. But it is only for the purpose of paying debts against the estate of the deceased that the judge of probate may empower an administrator to mortgage the estate. Such a construction as is contended for would make the statute in effect a nullity.
The mortgage taken up by the proceeds of the one in suit,, was not upon the same property or any part of the property described in the mortgage in this case. Had this mortgage been given upon the same property, to take up a previous one, then it might become important to consider whether complainant could not to' that extent be subrogated to the rights of the prior mortgagee. Under the facts in this case we are of opinion that no such question can arise, and that the complainant can obtain no relief in this case.
The decree must be reversed and the bill dismissed with costs of both courts.
The other Justices concurred.
(4636) Sec. 3. Such, order [empowering an administrator to mort•gage the estate for the payment of its debts] shall be obtained by petition to the proper judge of probate, * * and such order shall specify the .amount to be secured by such mortgage or other security, the rate of interest to be given, and the length of time for which such mortgage or •other security shall be given. * *
(4637) Sec. 8. * * said proceedings of the said * * administrator * * in mortgaging or otherwise pledging such estate, shall be reported to the judge of probate, and by him be subject to be confirmed ■ or vacated, and'new proceedings to be had, to the same extent and in the same manner, as near as may be, as is now provided by law in the case •of the sale of real estate. | [
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] |
Marston, C. J.
The complainant on the 27th day of February, 1878, filed the bill of complaint set forth in the record to foreclose a mortgage dated February 21st, 1855, given by defendants Henry C. and Phebe J. Hogadone his wife, to George Kendall, and by the latter assigned to complainant. A note of even date accompanied the mortgage. The lands described in the mortgage were known as Salt Spring lands, purchased from the State at four dollars per acre, one-quarter of which was paid in cash and a certificate issued to the purchaser Henry O. Hogadone. No patent has as. yet been issued and no farther payment of the principal made.
March 2d, 1859, Henry C. Hogadone assigned all his rights under said certificate, to his brother Edwin D. The consideration recited in this certificate is $500, and on the twenty-sixth day of the same month, Edwin D. assigned his interest to Phebe J. A like consideration is recited in this assignment.
It is now claimed that Edwin D. was a bona fide purchaser, having no notice of said mortgage, and that Phebe J., claiming through a bona fide purchaser, is entitled to the same protection that would have been afforded to him. The recitals in the assignment have no tendency to show actual payment, and Henry C. and Phebe J., the only witnesses testifying upon the subject, utterly fail to show any payment made. It is true they say this consideration was paid, but how it was paid, or any of the particulars, they fail to state. ¥e have no doubt whatever but that the whole transaction-was a' mere cover and sham.
It was also urged by the defendant that the cause of action was barred by the statute of limitations. A number of payments are indorsed on the note, the last dated in March, 1866, and signed by Henry C. Hogadone, the maker of the note. Besides this, proof that such payments were made was given, and that Henry C. in making them was acting under authority from his wife, so that the case was taken out of the statute, and the remedy under the mortgage not barred.
The decree of the court below must be affirmed with costs.
Campbell and Graves, JJ. concurred.
Cooley, J. did not sit in this case. | [
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] |
Campbell, J.
The bill in this cause was filed to foreclose a mortgage made in October, 1865, for $600, with interest at ten per cent, payable in three notes of $200 each at 3, 4 and 5 years from date. It has been assumed that the interest was due annually. There may be some doubt about this, but we talce the case as the parties have treated it. The mortgage was for part of the purchase money of the land. The remaining sum of $400 was secured by a personal note with sureties, payable in 2 years with interest at 7 per cent. Payments were made from time to time amounting to about $1500, apart from the payments of over four hundred dollars more made by the sureties and by Malone, which were claimed as made on the $400 note.
In September, 1867, before any principal was due on any of this paper, a payment was made of, $500, concerning the application of which the parties are directly at variance. Aside from this we are not satisfied from the evidence that any specific agreement was made as to the application of payments. If Malone is correct there was nothing on which to apply them but the mortgage. On several occasions Foster procured from Malone promissory notes, which make no reference to the mortgage or original notes, and which are claimed to include nothing more than interest at ten per cent on unpaid interest and additional bonuses beyond that. Some of these were secured by chattel mortgages.
In the view we take of the case we are not disposed to examine into the character of these documents. We are somewhat impressed with the idea that they are not only largely if not entirely usurious, but that there are other reasons for doubting their legal quality. But as none of them purport on their face to be at all connected with the securities in process of foreclosure, the parties have not attempted to charge the land with their payment, and whether they are good or bad is not important in this litigation.
The circuit judge in deciding the cause accepted Foster’s theory concerning the application of the $500 payment, and also allowed interest on interest in making his computation. He made the balance by this computation amount to $203.96. Complainant has appealed, and claims a much larger sum. Ón examining the record, which is very blind and unsatisfactory on the theory of accounting, we have not been able, in our own view of the facts, to discover satisfactory grounds for any decree whatever. Of course, as defendants have not appealed, the decree cannot be changed in their favor. Without going at large into the facts, we think that on any theory of applying the payments which leaves out the usurious notes, Malone had paid enough to extinguish the lien on the land. We forbear referring at length to the oppressive and practically fraudulent conduct of Foster in taking advantage of Malone’s ignorance and timidity to extort advantages from him. We are satisfied that applying the various payments as Malone meant them to be applied, and as they would have been applied by endorsement if his business ignorance and undue confidence had not prevented, the mortgage would have been paid up. Our own computation leads us to that conclusion.
In the absolute contradiction of witnesses, we do not propose to point out the reasons for crediting this or that. piece of testimony. Upon a large portion of the facts there is not much room for doubt.
The circuit court required each party to pay his own costs. "We do not think this works any practical injustice. The decree must be affirmed with costs of this court in favor of defendants.
The other Justices concurred. | [
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] |
Marston, C. J.
The theory upon ' which the plaintiff claims to recover is, that his assignor, in October, 1864, con veyed by deed a tract of land to defendant; that defendant then paid for 60 acres, and agreed that when the land conveyed was surveyed, if more than 60-j-6^ acres, he would pay for the surplus. The plaintiff had a survey made in 1878 which showed 62-j-fy acres in the piece.
The deed was not offered in evidence, and what land or how much was conveyed therein was not shown on the trial. If there were but acres described in and conveyed by
the deed, then there could be no foundation for the claim of the plaintiff in the present case. Under the evidence, whether the oral agreement to take and pay for the surplus was valid under the statute of frauds, and if so, whether the statute of limitations did not bar the claim, although raised, we think are not material,-as it does not appear whether anything more than the sixty acres were conveyed.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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34
] |
Per Curiam.
Plaintiff in error moves for a rehearing. The suit originated in a justice’s court, where defendant in error sued on a promise by plaintiff in error to pay a certain sum of money to the Toledo, Ann Arbor & Northern P. P. Co. on certain conditions. The plaintiff’s ease was that the payee named in the paper had been thrown into bankruptcy, and the paper had come to the hands of the plaintiff by assignment.
To prove the plaintiff’s case one Crane was called as a witness, who testified without objection that he purchased the paper of E. D Kinne, assignee in bankruptcy of the corporation to which it was given, at a bankrupt sale made by him. The defendant then took the witness for cross-examination and called out from him the following evidence: “ Kinne was assignee of the bankrupt company; the company was thrown into bankruptcy on my petition in the Eastern District of Michigan about the 13th day of August, 1875. The corporation named I knew as a corporation doing business as such in this State prior to the time of its bankruptcy.”
It thus appears that evidence that the payee named in the paper sued upon was thrown into bankruptcy on the petition of the witness Crane, that Kinne was its assignee and made sale as such, and that Crane became the purchaser of the paper, was put into the case by the concurring action of both parties to the suit, and without objection from either. Defendant had an undoubted right to demand record evidence of these facts, but he also had a right to waive it. Burke v. Wilber 42 Mich. 327.
Subsequently the deed from Kinne to Crane, given to carry into effect the sale, was offered and objected to on the ground that Kinne’s title had not been shown. No objection was made to the form of the deed itself, nor was any particular defect in Kinne’s title pointed out. The deed recited the authority of the grantor, by order of sale to him as assignee of the bankrupt company, made by the United States District Court for the Eastern District of Michigan, and it was received in evidence by the justice “ on condition of further showing.” Exactly what further showing was contemplated does not appear. The plaintiff gave further evidence, however, in an order made by Hovey K. Clarke, register in bankruptcy, dated June 9, 1874, reciting that the creditors of the bankrupt company had made choice of E. D. Kinne as assignee of the bankrupt estate, and ordering that he give bond in the sum of $50,000, appended to which was a notice to Kinne of his appointment and requiring him to signify his acceptance within five days, and an acceptance signed by him dated June 13, 1874. This evidence was objected to “ for incompetency and irrelevancy,” but it was admissible beyond question, we think, to show the facts recited, and it was followed by evidence from Kinne that he had no doubt he filed his bond in pursuance of the order, and also his acceptance, although he had no distinct recollection as to that matter.
Upon this state of facts the question is whether the justice should have rendered judgment for defendant for the want of evidence of an adjudication in bankruptcy, and for the want of proof of Kinne’s authority to convey. We thought not when we had the case before and we think so still.
The fact that the corporation was “thrown into bankruptcy ” on the petition of Crane was proved by defendant. The term of itself implies an adjudication. The fact that Kinne was assignee and acted as such was proved by both parties. Objections to the want of further evidence of his title were obviously merely technical, and when the appointment by the register was afterwards put in, nothing more could reasonably have been required. A party insisting upon strict proof must do so consistently from the first; and if his own showing proves that his demand for something further cannot be in the interests of justice, it should not be favored. Such was the case here.
A further reason urged for a rehearing is that the court did not consider and pass upon the variances between the declaration and the proofs which were assigned as reasons for a nonsuit.
The answer to this is that the alleged variances were expressly restricted by defendant, in the motion for a non-suit, to the matter of the assignment of the paper sued upon; and there is nothing in the record from which we could possibly infer that the justice ever had his attention called to questions which the plaintiff in error desires to raise on a rehearing. The uniform understanding in this court has been that in reviewing the proceedings of justices’ courts it will disregard mere informalities and technicalities, and refuse to disturb judgments on objections which the justice was never given an opportunity to examine and pass upon, or which were so blindly stated that the point made in error failed to attract his attention. Hinman v. Eakins 26 Mich. 80; Lake Superior Building Co. v. Thompson 32 Mich. 293; Zimmer v. Davis 35 Mich. 39; Bradshaw v. McLoughlin 39 Mich. 480; Thompson v. Ellsworth 39 Mich. 719, and cases cited.
We think we said on the hearing all that the points actually made before the justice called for, and that a rehearing should be denied. | [
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