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Marston, C. J.
This action was commenced in justice’s court, and the return of the constable showed that he served the summons “by reading the same to the defendant and delivering to R. G. Cooper, agent of the American Express Company at Lakeview, a copy thereof.” The defendant did not appear. The statute, 1 Comp. L. § 1624, prescribes the mode of service of process in such cases. As there was no attempt to comply with such provisions the court acquired no jurisdiction. Hartford Fire Ins. Co. v. Owen 30 Mich. 443; Hebel v. Amazon Ins. Co. 33 Mich. 400; L. S. etc. Co. v. Hunt 39 Mich. 469.
The judgment of the justice must be quashed and held for naught with costs to plaintiff.
The other Justices concurred. | [
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] |
Graves, J.
This is a companion case to Pettibone v. Smith reported in 37 Mich. 579, and the outline there given -will suffice for this occasion. The action was brought for the same interference with the same water-course and the jury found a verdict in Maclem’s favor for $5. Although the exceptions are very numerous we think it needless to use many words. The law applicable has been pretty fully explained in former eases. Dumont v. Kellogg 29 Mich. 423; Hall v. Ionia 38 Mich. 493. Pettibone v. Smith, supra, has also a direct bearing.
There is no valid objection to the declaration. If it was not supposed to be full enough the objection should havé been taken before entering upon the trial.
Maclem’s contention was in substance that .Pettibone had obstructed' and diverted the stream in such manner, and to such extent, that the water thereby became so much wasted by frost, absorption and evaporation as to cause him material injury and damage. The point is now made that the circuit judge in charging the jury made no allowance for the diminution of the water consequent on the reasonable use of the stream by Pettibone for watering his stock and for other domestic purposes ; but gave the case to the jury in terms bi’oad enough to pexmxit them to hold Pettibone responsible for diminution of water however caused. We think this is not a just view and that the jux-y did not receive the charge in that sense or so apply it. The .controversy as shaped by the pleadings and followed up by the whole evidence distinctly excluded all liability of Pettibone on account of having used the water for stock or for his household or for any like purpose, and the record contains no sign of any position by the plaintiff inconsistent with the course of proof. Now it is no more than reasonable to assume that the jury did not step aside and apply the language of the charge to something wholly foreign to the issue. The case contains no evidence that they did so and the fair conclusion is that they applied it correctly and were not misled.
"We do not find it necessary to discuss the twenty-one requests for instructions. The actual dispute was fully covered by the charge and the jury were not misdirected. The defendant objected to the reception of the general verdict because the jury had not answered each of twenty-seven special questions. We think the court committed no error in refusing to allow the objection. Nearly all the questions were answered, and those which were not were of no legal consequence. It is not needful to add further reasons.
The case originated before a justice of the peace and the recovery was for $100. As this was reduced to $5 the claim is made that the court below erred in allowing costs to the plaintiff. The defendant, it is said, should have had costs. The allowance of costs in the appellate court was discretionary and we cannot review it. Hewitt v. Ingham Circuit Judge 44 Mich. 153.
We have examined the exceptions as to the admission and rejection of evidence and do not find any which call for discussion.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
The parties traded horses on Sunday. The exchange was even and there was immediate delivery. The plaintiff became dissatisfied and, wishing to trade back, went the next morning to the defendant’s place and made several offers of money to induce him to do so, but he refused. After some bantering however the defendant gave the plaintiff five dollars and a tobacco pipe, for the purpose, as explained at the time, of averting ill feeling. The plaintiff then returned home, but wishing, on further consideration, to undo what had been done, he again called on the defendant and peremptorily insisted on trading back, and he offered to restore the money he had received and someting more than the value of the pipe. The defendant refused to listen to any overture.
The plaintiff then brought replevin before a justice and obtained judgment and the defendant appealed. The circuit judge, on the close of the evidence, took the case from the jury and ordered a verdict for the defendant. This ruling went on the theory that the transaction on Monday amounted to a new contract by which the title became established in defendant, and that no room for any other view existed.
We think this was error. ■ The case made by the evidence was not necessarily of the character assumed. The transaction on Sunday passed no title. As a trade it was void, and the evidence of what took place on Monday was not conclusive that there was anything more than an attempt to ratify and validate the Sunday negotiation ; and of course a ratification of that trade was impossible; unless there was a new contract the plaintiff was entitled to reclaim his horse against the void negotiation. No new contract could be made without a mutual assent of the parties, and unless the plaintiff intended to make one the title was not affected by the occurrences subsequent to the transaction on Sunday, and whether there was such new contract was a question for the jury on the whole evidence under proper instructions.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Marston, C. J.
Where proofs have been taken in open court in a chancery cause, an appeal taken, and an effort made to have the case settled under and within the time fixed by the statute, but which failed or was imperfectly done from circumstances not caused by or within the control of the appellant, such as the failure of a stenographer to furnish a copy of the testimony, or of the Circuit Judge to properly settle or certify to the same, the appellant may in this Court have an order extending the time to perfect his appeal, or if return has been made, the proper certificate may be obtained from the Circuit Judge and filed with the record, that the ease was settled and that the proofs returned are correct. In such cases this court having obtained jurisdiction of the cause, an opportunity will be afforded the appellant to correct such defects as were not caused solely by his own negligence.
The other Justices concurred.
R. Z. Roberts and Realces <& Gutcheon for defendants.
It is lawful to make time of the essence of the contract, and agree that if a vendee does not pay at the time specified the vendor’s obligation to sell shall be terminated : Benedict v. Lynch 1 Johns. Ch. 375; Lloyd v. Collett 4 Brown Ch. 469 : 14 Ves. 430; Webb v. Hughes L. R. 10 Eq. 284; Boehm v. Wood 1 Jacob & Walker 420; Williams v. Edwards 2 Sim. 83; Alley v. Deschamps 13 Ves. 225; Hunter v. Daniel 4 Hare 423; Parkin v. Thorold 2 Sim. N. S. 1: 16 Beav. 59; Wells v. Smith 7 Paige 22; Domnick v. Michael 4 Sandf. Sup’r Ct. 374; Kirby v. Harrison 2 Ohio St. 332; Heckard v. Sayre 34 Ill. 150; Stow v. Russell 36 Ill. 33; Ahl v. Johnson 20 How. 521; Hansbrough v. Peck 5 Wall. 505; Grigg v. Landis 4 C. E. Green 350 ; Reynolds v. Nelson, 6 Madd. 20; 3 Pars. Cont. 383; Adams’ Eq. (4th Am. ed.) 254; 1 Sugd. Vend. 444.
Campbell, J.
This is a bill in the nature of a bill for specific performance, to restrain vendors from exercising acts of ownership over certain lands which had been contracted for sale, and on which they had re-entered after the vendee’s ■default.
The original contract was made October 14,1878, between two tenants in common, each named George W. Moore, residing in Detroit, and Robert Goodfebow. The lands sold were in Oscoda county, and consisted of nine parcels in town 26 North, of range three East, containing in all 1480 acres, and lying in one tract. The terms of sale were that the purchaser should pay $1108, of which eight dollars were paid down, the remaining $1100 to be paid in yearly instalments •of $100, with seven per cent interest on the whole principal,' payable October 17th of each year. The purchaser was to ■pay up all taxes then unpaid, and to pay all future taxes of every kind, the past-due taxes being applicable on the last instalments of purchase money. Goodfellow was by the contract to be let into possession and remain so long as he fulfilled it, and no longer, but was restricted from committing any waste beyond cutting fire-wood or other wood for his own use, or while clearing for cultivation.
The contract was subject to be terminated by any default or violation of its terms, and time was declared to be of the essence of the agreement, and, unless in all respects complied with, the vendee was to lose all claims under it.
Goodfellow paid down the eight dollars referred to, and went at once into possession, built a log house and made a small clearing about it. He undertook to sell a parcel of 160 acres to one Coursier on five years’ time, and Coursier also went into possession and built a log house on his tract. Goodfellow paid no taxes, either old or current, and during the winter after he entered cut 101,000 feet of Norway and white pine which he sold to complainant for something over $300, aside from running expenses. During the summer or early fall of 1879 Moore & Moore sold out to Wasey their lands in three adjoining townships in Oscoda, including the lands contracted to Goodfellow. On the 18th of October, 1879, Wasey with the concurrence of Moore & Moore (who had told him when he purchased that they understood Good-fellow did not intend to carry out his contract) prepared a notice to terminate the agreement and quit the premises, and sent it up to be served on Goodfellow if he failed to perform. The notice was served October 23d, on Goodfellow in person on the premises, and Wasey’s men in a few days went on the lands, established their lumber camps and went to lumbering, and had cut about a million and a half feet, being the principal part of the pine lumber of all sorts, before this bill was filed.
Goodfellow made no protest or resistance, and made no -offer of payment. At the end of December he entered into negotiations with complainant and executed an assignment which did not cover the timber cut by Wasey and his associates. The testimony tends to indicate that this arrangement was for an interest on shares. On the 23d of January, 1880, an absolute assignment of everything was made for the expressed consideration of $300, and the testimony indicates tliat this was subsequently satisfied by various payments and dealings.
Gram filed his bill in this* cause on the 26th of January, 1880, and obtained an injunction against cutting more timber or disposing of that already cut. Under a subsequent modification the timber cut was boomed in the Au Sable river. The case was heard on proofs taken in open court, May 5, 1880, when the Circuit Court for the county of Oscoda decreed in favor of* complainant authorizing a receiver to sell the logs, and dispose of the proceeds in the following manner: First, to pay boom charges and receiver’s expenses with $5 a day as compensation for his services; second, to pay defendants $4.40 a thousand as their actual outlay in getting the timber out and taking it to where it would go forward to market; third, to pay defendants what was due on the contract, not however declaring how much was so to be paid; fourth, to reserve $1500 to be held to secure future instalments as they should come due; fifth, to pay the balance to the complainant
This order included two million of feet. Defendants claim, and we think they are borne out by the proof, that all the logs beyond 1,500,000 feet were cut from other lands.
From this decree defendants appealed, and claim that complainant made out no case for relief whatever. It is claimed not only that no case was made out by proofs, but that the bill itself does not state the case either fully or truly. It is necessary in the first place to look at the bill.
The contract as set forth in the bill makes no reference to any of the clauses and conditions wdiich forbade the commission of waste, and left out also all the default clauses. It sets out the payment of eight dollars down, and avers that Good-fellow entered the lands and built a house, barns and outbuildings, and made other valuable and permanent improvements, and occupied with his family.
The bill sets out the notice given by Wasey as in pursuance of a previous purchase made with intent to defraud Good-fellow, and avers that the defendants, being in business under the name of the Oscoda Salt & Lumber Company, immediately entered on the land about October 20, 1879, and have ever since been lumbering there and have cut off pine and other lumber; that the land without the timber is worth $3000 and the pine was worth from $7000 to $9000.
That on December 31, 1879, Goodfellow sold to complainant all his rights in the land and lumber for $300, and that on the 23d of January, 1880, he paid that sum to Goodfellow.
That January 8, 1880, he paid all the unpaid taxes amounting to $211.60, and. that on the 13th day of January he tendered Wasey $180, being the whole amount then due, but Wasey refused to accept it. The bill offers to pay any moneys due or to become due thereafter.
The answer relies on Goodfellow’s violation of the contract in various ways, including his cutting and selling lumber, his sale to Coursier, his failure to pay taxes outstanding, and his failure to pay the October instalment, and their understanding, when Wasey bought, that he had wrongfully cut timber, and did not expect to fulfill.
The refusal to accept tender is admitted, but the payment of taxes is denied, and complainant is left to his proof concerning the assignment, but they deny that he paid the consideration.
The answer claims the bill makes out no cause of action, and insists on the benefit of a demurrer. No amendment was ever made to the bill.
As the bill makes no averment that Goodfellow had performed any part of the contract beyond the preliminary payment of eight dollars, and makes no excuse for his non-performance, and contains no averment that he ever meant or desired to perform it, it rests on the theory that his rights were of such a nature that they were not imperilled by any default in the execution of the conditions. It does not set out the conditions of forfeiture or against waste at all, and therefore gives no explanation or excuse for that. This last matter of course does not affect the bill as demurrable, but it bears on the effect of some proof on which reliance is placed.
It has been held in this State that time is not generally so far of the essence of a contract that a failure to perform witliin a period specified will necessarily preclude a party from being allowed to perform subsequently. Richmond v. Robinson 12 Mich. 193.
But on the other hand, when a vendee has failed to perform his obligations, relief is not a matter of right, and while unimportant omissions may be disregarded, relief will not be granted when, under all the circumstances, including the conduct of the parties, it does not appear just and reasonable. The ground on which equity relieves against forfeitures is that it would operate oppressively or fraudulently to refuse. But no one can ask relief to which he has lost his strict right when his own conduct renders it unjust that he should have it. Smith v. Lawrence 15 Mich. 499 ; Truesdail v. Ward 24 Mich. 117; Hawley v. Jelly 25 Mich. 94.
In the present case no more was paid down than a merely nominal sum, which would not more than pay the preliminary expenses of the bargain. The land at that time had been sold for taxes and bid in by the State for the taxes of several different years, to an amount, with interest to that time, of probably in the neighborhood of one hundred and seventy-five dollars, having been more than two hundred in January, 1880. Any person could buy up these titles and obtain conveyances presumptively valid and possibly valid in fact. These tax encumbrances made a part of the consideration of the contract, and the amount paid on them was to be allowed on the last payments under the contract. The contract price drew only seven per cent, interest, whereas interest was running on the State bids at the rate, in some instances, of fifty per cent., and in all cases of much more than seven per cent. The agreement to pay these taxes was one which may fairly be regarded as intended in lieu of any large payment down, and required performance within a reasonable time, which could not be a long time without subjecting the vendors to the double risk of having their purchase money largely reduced, and having their security put in peril.
The chief, and as was supposed, nearly the only value of the land was in the Norway pine, which had not been stripped, and the small amount of other timber remaining on the premises. The purchase price being a very low one is in accordance with all the proofs concerning the elements of value. The contract expressly prohibited any waste, and the nature as well as large extent of the lands indicated that the purchaser could not have expected to pay for the land out of his earnings on it. It appears that in fact he had other means of employment, and did not rely on farming or the ordinary resources of clearing land outside of valuable timber. The contract expressly made time of its essence, and both from the running of taxes which the vendors did not desire to be compelled to pay themselves, and the danger of fire which the complainant lays some'stress upon in the testimony on his part, such a provision was not necessarily so unreasonable that circumstances might not authorize the court to pay some regard to it.
When Groodfellow received notice of the termination of the contract at the end of the year, he had made no improvements which had cost much time or much money. The only buildings he put up were the log buildings which every settler in the woods finds it easy to finish in a very short time, and such as any tenant would readily complete for his occupancy. They were not such as would add materially to the value of the whole tract or of any part of it. In the meantime, in direct violation of the agreement he had committed waste by cutting off more than a hundred thousand feet of the best timber for which he received in cash enough to pay the taxes and a considerable share of the first annual payment. He was therefore at the end of the year not only in default for the payment then due (which standing alone and apart from the other conditions might not be very important), but also for the payment of taxes and for the actual misconduct of cutting timber, whereby the value of the land had been directly impaired. He had paid nothing whatever beyond eight dollars for the benefit of his year’s occupancy, and he had received three hundred dollars from sales of timber, and while he had paid taxes on his personal property, he had paid none whatever, either current or bach taxes, on the land.
There is some testimony from him that at the time he made the contract Moore & Moore gave him permission to cut timber. No such permission was set up by way of amendment to the bill, although the answer relied on the violation of the agreement not to cut. As the testimony was taken in open court and defendants had not been notified of this claim, there was no opportunity to meet this testimony by examining the vendors. But we do not think this evidence is either admissible or reliable for the purpose for which it was put in. A contemporary parol agreement cannot be set up in variation of the express writing, and the bill was filed to enforce the writing and not any change from it. If such permission.was given it was plenary,' and it is impossible to suppose the vendors would allow the land to be stripped of all that made it valuable, when they had received no payment, and retained no control over the lumber which might be cut. We do not think we can assume that such permission was granted. And we think that if granted, as complainant claims, to enable Goodfellow to meet his payments, it would seriously aggravate his default in not making them, v
We do not think that Goodfellow had made any bona fide preparation to comply with his agreement. His testimony on this head is somewhat contradictory, but there is nothing that satisfies us he had any reasonable assurance of money, or had made any proper effort to get it. And it is not claimed he expected to raise, if he could, any more than the first annual instalment. The taxes he left without any attention. When defendants warned him of their termination of the agreement, he made no claim that he had adverse rights, and he allowed them without objection to form their lumber camps and make all their preparations; and until a large portion of the land was cleared off they recéived no hint from any one that they were regarded as intruders. They had a right, therefore, to make all their business arrangements with this understanding, and with the expectation that they could deal with the lumber as 'they should see fit. If the case were more doubtful than it is, this course of Goodfellow should estop him, because it is impossible to reckon by the mere expense of cutting and running logs the damage done to par. ties who have based business calculations on the ownership of the property lumbered.
Complainant can have no better claim than Goodfellow. When he purchased of the latter, it was in full view of the facts, and of the nature of the litigation that must arise. Defendants perhaps are not interested very directly in questions of consideration between him and Goodfellow, but they have a right to have the real parties impleaded. There is little if any doubt that the first arrangement with Goodfellow was champertous. The testimony does not show the second assignment to have been so, but it does not explain Goodfellow’s continued possession of his dwelling. The bill avers-distinctly and under oath that the consideration of $300, which was a very small portion of the alleged value of the land and lumber, was paid before suit commenced. This is clearly disproved. It also appears distinctly that complainant’s tender to defendants was made before the last assignment, and did not include any discharge of taxes.
The bill also avers payment of all back taxes. The proof shows that instead of paying them before the bill was filed most of them were not paid at all, but complainant bought up the State titles more than two months after the bill was filed; and the taxes on which no sales were made were not paid until March, 1880. The carelessness of such averments under oath, especially as they were conditions precedent to any relief, renders the testimony on other points subject to some scrutiny in matters of doubt.
It appears then that complainant himself had not, when the bill was filed, put himself in a condition to seek relief. Defendants were not bound to accept the annual payment until they were secured against the taxes.
Upon the whole record we think complainant has shown no equities. Goodfellow’s failure was in a most sei’ions matter affecting defendant’s security. He had committed waste to a considerable amouixt and thus injured the land. He acquiesced in the re-entx’y and they incurred risks and liabili ties and spent money on tlie faith of it. He never notified them of his purpose to contest their doings, and their first knowledge came from an assignee who had acquired no personal equities and who had none on any theory when the bill was filed.
"We think the contract was terminated in October, 1879, and that defendants are rightly in possession. The decree must be reversed with costs of both courts and the bill dismissed. The lumber, or its proceeds if sold, must be returned to defendants clear of any charges created by this suit, and any such charges actually incurred and paid by them must be included in their costs. Complainant must be held responsible for all the expenses incident to the litigation.
Graves, J., concurred. | [
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Campbell, J.
This is an action for rent under tbe condition of an appeal bond in proceedings for tbe recovery of land, removed from a commissioner into tbe circuit court for Bay county.
On tbe 26th of February, 1876, a lease was made by defendants in error, who are husband and wife, of a hotel and furniture to Mearas for a year from March 1st at $1000 a year in monthly instalments. He remained in possession till August 26th, and absconded." In May, 1878, proceedings were begun to remove him for non-payment of rent, and judgment of restitution given which was appealed, and the bond in suit executed. In the appellate court judgment of restitution was given in September, and the writ served and restitution made in January, 1879. There was no proof of any different possession by any other person, but Ferris and wife are said to have got in on the 26th of August. Some objection was made to proof of the writ of restitution, but it was proper if served, and immaterial if the parties had got in without it.
Suit was brought on the appeal bond against the sureties alone. They did not plead in abatement the non-joinder of Mearns, but after default the circuit court set it aside for the non-joinder but allowed an amendment, and a new summons was issued to reach him and he was defaulted. The other defendants pleaded the general issue to the amended declaration, and went to trial on it. They cannot now raise any question about the propriety of the new pleading, to which it does not appear they ever objected in any legal way below.
On the trial a recovery was had for rent up to August 26th, 1878, from May 2, which was the time during which it was unpaid. The defendants sought to prove two transactions in bar of it, which were an execution sale against William Ferris in favor of George A. Hecht, one of the plaintiffs in error, wherein the deed was dated March 8th, 1878 ; and summary proceedings against Mearns and William Ferris on which judgment in favor of Hecht was rendered, August 9, 1878, but no writ of restitution ever issued. Both of these were properly ruled out, inasmuch as Mearns enjoyed the premises till August, 1878, and neither he nor Ferris was ousted.
An order on Mearns for $450 payable out of the future rents to Hecht and accepted by him, dated April 25th, and signed by Ferris, and not by his wife, was also ruled out, and we think properly. There was no assignment of the lease, or of any more than a part of the rent, and Ferris alone could not make an assignment. No suit for rent, where the lease is not assigned, can be brought in the name of any but the lessors. They may be responsible to some "one else for what they recover, if they have made any charge upon it, but they must sue for it themselves. The lease being accepted from the two jointly as lessors, the tenant could not inquire into their individual interests, so long as he remained in possession undisturbed ; and no such inquiry is open in this action for rent, during his occupancy.
Objection was made against recovering rent as far back as May. But the bond sued on secured by its terms all rent due or to become due from Mearns, and -this rent was all due.
No exception was taken to the charge or in any other way, whereby the objection was presented that the rent should be apportioned on account of the furniture, and therefore we need not inquire whether the lessee of a furnished house, under such a bond as this, can claim a reduction for the furniture when his rent is all in default.
There is no error in the record, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
This is a judgment creditor’s bill. James TI. Muir is made defendant as having in his possession the books and papers of the company as its secretary. The bill alleges a judgment in favor of complainant, and the return of execution thereon nulla bona, and the allegations of the bill are supposed by complainant to be sufficient for a bill under chapter 206 of the Compiled Laws of 1871 which makes provisions for the winding up in chancery of insolvent corporations on the petition of creditors.
The defendants demurred to the bill, and while the demurrers were undisposed of, the court, on an ex jycwte application, made an order whereby it “ordered, adjudged and decreed, that the stock, property, things in action and effects of the said Detroit & Milwaukee Railroad Company be and the same are hereby sequestered;” that Henry Ñ Brownson be appointed receiver thereof; “ that the said receiver shall possess all the powers and authority conferred, and be subject to all the obligations and duties imposed upon receivers in and by chapter 206 of Comp. Laws of 1871, touching proceedings against corporations in chancery; that the directors, clerks, attorneys and other agents and servants of the said company, and each and every of them, disclose and deliver over to the said receiver on demand, all the moneys, property and effects of the said company in their possession or within their power or under their control, or in the possesion, within the power, or under the control of any or either of them, or in which the said company have any interest, including all real property and the title deeds thereof, and all books, papers and memoranda, and all evidence of or security for any debts or claims due, owing or belonging to the said company, or in which the said company have any interest; and that the said Detroit & Milwaukee Railroad Company and J ames H. Muir, secretary of the said company, forthwith assign, transfer and deliver possession of all the said stock-ledgers, books of account, papers and writings of every description, and property, personal and real, belonging to the said Detroit & Milwaukee Railroad Company, to the said receiver, within five days after demand by him and service by him of a certified copy of this order upon C. C. Trowbridge, president of the said corporation, and upon the said James H. Muir, secretary thereof.”
From this order the defendants appeal.
The circuit judge seems to have assumed that there could be no answer to the prima facie case made by the complainant’s bill, and that the appointment of a receiver was a matter of course. He therefore not only appointed one without giving defendants an opportunity to be heard, but he decreed a sequestration of the Railroad Company’s property. And this was done while an issue which involved the right to file the bill was pending and not disposed of. Surely this was erroneous. The judge could not know in that stage of the case that complainant had any equities whatever.
It is said that the demurrer admitted complainant’s case. But this was so for the purposes of that issue only. If the demurrers had been overruled, the defendants would have been given leave to answer, and the Court is not at liberty to assume, without hearing them, that they could not disprove complainant’s case. The statute (Comp. L. § 6565) says that the court “ may sequestrate the stock, property, things in action, and effects of such corporation, and may appoint a receiver of the same; ” but it does not intend that the condemnation shall precede an adjudication, or the adjudication precede a hearing.
The order appealed from must be reversed with costs and the record remanded.
The other Justices concurred. | [
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] |
Per Curiam.
Plaintiff, Christine Denson, appeals as of right from Wayne County Circuit Court Judge Thomas RoumelTs July 25, 1984, order which granted defendant summary judgment pursuant to GCR 1963, 117.2(3). Judge Roumell held as a matter of law that plaintiff did not suffer a serious impairment of body function. On appeal, plaintiff asserts that the lower court erred because she suffered objectively identifiable injuries to the musculature of the neck and upper back, causing her to become disabled and to give up important regular activities.
Plaintiff was injured on October 20, 1982, when defendant struck the rear of her vehicle while she was stopped in traffic. Plaintiff declined medical treatment at the scene and proceeded to take her automobile to a car dealership where she called a relative to pick her up. She went home and went to bed. The next day she commenced treatment with Dr. Bader.
X-rays for fractures proved negative. Plaintiff was never hospitalized, and she conceded that her treatments were for muscle aches. She received injections and oral medication and she used a heating pad at home. Dr. Bader’s December 28, 1983, report stated that plaintiff suffered from a dorsal vertebral strain and chronic cranio-cervical injury. Her medical care included 45 medical visits in the 14 months following the accident.
At the time of the accident, plaintiff was laid off from her employment as a school teacher and was collecting unemployment benefits. She informed the MESC that she was able to work without restrictions. At the time of the injury, she was also attending Wayne State University on a master’s degree program. She did not recall missing any school.
She was still attending college at the time of her deposition and had become employed as a teacher in an alternative-education school. She did state that she could no longer make quick movements on her job, and she no longer engaged in swimming and tennis as she did before her injuries. Plaintiff asserts that, based upon these facts, there were objective findings in support of her soft-tissue injury that compelled the conclusion that she suffered a serious impairment of body function.
The issue for our consideration is whether the trial court erred in ruling as a matter of law that plaintiff’s injuries did not constitute a serious impairment of body function within the meaning of MCL 500.3135; MSA 24.13135.
First, we disagree with plaintiff’s assertion that a factual dispute existed on the nature and extent of her injuries which was material to a determina tion of whether plaintiff suffered a serious impairment of body function. Our review of the record reveals that a material factual dispute did not exist regarding the nature and extent of plaintiff’s injuries. Thus, under Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), reh den 417 Mich 1104 (1983), the trial court could rule as a matter of law that plaintiff’s injuries did not meet the threshold requirement of serious impairment of body function under MCL 500.3135; MSA 24.13135. See Braden v Lee, 133 Mich App 215; 348 NW2d 63 (1984), and Williams v McGowan, 135 Mich App 457; 354 NW2d 382 (1984).
In Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984), this Court suggested the following standards to assist a court in making a legal determination of whether a plaintiff’s injuries do constitute a serious impairment of body function:
"First, 'impairment of body function’ actually means 'impairment of important body functions’. Cassidy v McGovern, 415 Mich 504. Second, by its own terms, the statute requires that any impairment be 'serious’. MCL 500.3135(1); MSA 24.13135(1); McKendrick v Petrucci, 71 Mich App 200, 210; 247 NW2d 349 (1976). Third, the section applies only to 'objectively manifested injuries’. Cassidy v McGovern, 415 Mich 505.” (Emphasis in Payne.)
The Payne Court held that the plaintiff’s injuries did not constitute a serious impairment of body function, despite the plaintiff’s testimony of pain in the base of the thumb, since the injuries were not objectively manifested in a scientific or medical context. The Court stated that objective manifestation of symptoms in the form of pain was insufficient to meet the serious impairment of body function threshold and that the plaintiff was left to her remedies under the no-fault act. Id., pp 409-410.
We disagree with plaintiff herein that there is a material factual dispute regarding the nature and extent of her injuries. While defendant did not introduce medical testimony of his own, a fair reading of the plaintiffs physician’s reports and plaintiff’s own testimony leads us to conclude, as did the trial court, that the plaintiff did not suffer a serious impairment of body function. The doctor placed no work or activity restrictions upon plaintiff, and she testified in her deposition that she never missed any work or school and that she never claimed to the MESC that she was unable to work during that period following the accident when she was receiving unemployment benefits.
Viewing the evidence in a light most favorable to plaintiff, it is not convincing to us that plaintiff changed her job because she was unable to cope with the physical demands of her former job. Rather, plaintiff seems to admit that this job change was more the result of personal preference. Nor do we think that plaintiff’s discontinuance of her tennis and swimming activities is significant to establish her claim.
"A limitation self-imposed because of real or perceived pain is not objective manifestation.” Salim v Shepler, 142 Mich 145, 149; 369 NW2d 282 (1985).
It is our opinion that, on the facts presented here, plaintiff did not suffer a serious impairment of body function. "[Plaintiff’s generalized assertions that she has resulting physical restrictions and still suffers from pain do not constitute a significant effect on her lifestyle nor an impairment of an important body function.” Flemings v Jenkins, 138 Mich App 788, 790; 360 NW2d 298 (1984).
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Durand, J.
The bill of complaint was filed in this cause for the purpose of obtaining an injunction to restrain the defendants, who are respectively the sheriff and deputy-sheriff of the county of Lenawee, from selling or disposing of a pile of brick, situated on a certain piece of land in the city of Adrian, and which is specifically described in the bill of complaint.
It is alleged in the bill that these brick had formerly been a portion of an old blacksmith shop situated upon said land, and upon which land, including the blacksmith shop, the complainant had a mortgage lien, and that this building and the brick of which it was constructed constituted the chief value of the lot; that complainant foreclosed his mortgage by advertisement, but that the time for redemption had not expired at the time of the filing of' this bill; that the 'building was taken down by parties claiming some interest in the real estate, and the brick cleaned and piled upon the land; and the complainant charges that these brick constituted a part of the real estate, and were subject to the lien of his mortgage.
This contention is not denied by the defendants, but at .the time the levy was made the defendants supposed that the brick belonged to one Henry O. Lentz, and, so supposing, the levy referred to was made by virtue of an execution then in the hands of the deputy-sheriff.
The record does not disclose that the defendants were informed in any way or manner of complainant’s claim until the bill of complaint was filed in this cause. As soon as the defendants learned of complainant’s claim to the brick, they ceased to take any further action under the execution, and at the first opportunity offered them in court they disclaimed any intention of doing so after having learned of the facts stated in the bill. Notwithstanding this, the complainant asked the court for a temporary injunction against the defendants, to enjoin them as prayed in the bill. No bond was filed, as required by section 6689, How. Stat., at the time this application was made. After hearing the parties, the court refused to grant the temporary injunction. The cause still being pending, the defendants finally appeared, and demurred to the bill, for the reason, among others, that the complainant did not by his bill state such a cause as ought to entitle him to the relief prayed for, and for the further reason that it does not appear from the bill that either of the defendants had at any time done anything, or threatened anything, showing an intention to ignore complainant’s rights. At the final hearing, which was on July 22, 1891, the demurrer was sustained, and the bill dismissed. From this decree the complainant appeals.
The claim for an injunction in this case is based upon the ground that without it the complainant would suffer irreparable injury, and yet the bill fails to show that he even notified tlie officer of his claim, or gaye him an opportunity to abandon the levy before filing his bill. In this case it would haye been at least fair for him to haye informed the defendants of his claim, and giyen them the right to haye abandoned the levy without being subjected to costs; and his omission to perform this fair duty creates a condition that did not require the court to go out of its way to sustain him in his technical claim for a writ of injunction.
The application was for an injunction to restrain proceedings at law, yiz., to restrain an officer from making a sale of property leyied upon by yirtue of an execution lawfully in his hands for collection. Complainant was not entitled to a preliminary injunction, even though his bill showed undoubted equities, without filing a bond such as is required by section 6689, How. Stat. That the defendants did not happen to be the judgment creditors can make no difference. “ A party who has a judgment has a right to enforce it, and it is just as serious an injury to him to haye it stayed bj one person as another; * * * and there is no reason for allowing a third person to obstruct process on any easier terms than a party." Boinay v. Coats, 17 Mich. 416; Jenness v. Smith, 58 Id. 281. This disposes of his right to claim for a temporary injunction.
At the time of the final hearing, which was July 22, 1891, an injunction could not haye been of any practical ayail. The execution had expired by its own limitation, —60 days. No proceedings had been taken under it after the defendants were informed of the complainant's claim to the brick, and at the hearing in the court below the defendants disclaimed all right to said brick, or any intention to interfere with them in any manner. The court, in the exercise of its plain duty, denied the injunction asked for, and the circuit judge was clearly right, for to have granted an injunction under the circumstances shown by the record in this case would have been improper.
The decree of the court below is affirmed, with costs of this Court.
The other Justices concurred. | [
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] |
Grant, J.
This is an action of libel. The libelous language complained of was as follows:
i(We know, of course, that Sanford himself would not hesitate to lie in court, or anywhere else, in order to defend himself against the truthful charges of treachery which the Journal has preferred against him. In bold, willful, skillful, and systematic prevarication he has probably never had an equal in the State of Michigan.”
The. innuendoes stated that by this language it was meant “ that the defendant had positive knowledge that the plaintiff was a reckless and confirmed criminal at heart, who would not only falsify, but would unhesitatingly commit the crime of perjury whenever it would subserve his interest to do so,” and “that the plaintiff was habitually .and persistently untruthful, deceptive, and treacherous, and that his reputation for so being was fixed and general .■among all his neighbors and acquaintances in the community where he resided.” The defendant pleaded the ■truth of the charges, admitted the publication, but denied that the interpretation thereof given in the innuendoes was the true and correct interpretation, and alleged that the language was susceptible of a true and correct interpretation, and that such correct interpretation was true. The plea does not state what the defendant considered the true interpretation to be.
No innuendoes were necessary. The language is susceptible of but one interpretation. It charged that the plaintiff was of such a character that he would commit the crime of perjury in order to defend himself against the charges made. The language was libelous per se. The only defense available, therefore, was proof of the truth of the charge made, and, failing in this, facts in mitigation of damages.
The assignments of error, 48 in number, refer to the admission and rejection of testimony and the charge of the court. The record contains 700 pages, whereas 100 would have béen amply sufficient to cover all the questions raised. So far as we consider the assignments of error of importance, they will be mentioned.
1. The defendant was permitted to introduce in evidence other articles in his newspaper published prior to the one upon which this suit is founded, charging plaintiff with various acts of political treachery, and in general arraigning him as a political traitor. Upon those articles plaintiff had brought suit for libel, and the publication now complained of followed the bringing of that suit. While there is much force in the claim of plaintiff’s counsel that those articles contain independent charges, differing from the charge in the present case, still the fact remains that those articles, and the one now declared on, refer to the same transaction in which plaintiff is charged with political treachery, and in regard to which defendant charged that he would commit perjury in order to defend himself. Under the circumstances, we think no error was committed in admitting those articles.
2. The defendant had testified to the plaintiff’s general reputation. On cross-examination, he was shown a petition, signed by himself and others, recommending the appoint ment of the plaintiff as postmaster at Lansing. This-appears to have been read in evidence. The defendant then identified other signatures to the petition, and testified that, at the time, he knew that they signed it. On redirect examination he was permitted to testify what certain of these signers had said to him at various times-about the character and reputation of plaintiff. These-statements were hearsay, and incompetent. Had the-inquiry been limited to statements made in regard to the signing of the petition, a different question would be presented. In view of a second trial, we deem it proper to say that the signatures to this petition, aside from the defendant’s, should not have been admitted. The petition itself was only admissible as bearing upon the testimony of the defendant. Petitions for appointments to office are not competent evidence in a libel suit to show the plaintiff’s good character and reputation for truth and veracity. This ruling covers other testimony of a similar character, which it is unnecessary to state.
3. The testimony given by the defendant to the effect that it had been generally understood that plaintiff was a professional lobbyist was incompetent. No such issue was made by the pleadings.
4. It was error to permit evidence that in 1870 plaintiff' was nominated for member of the Legislature; that a certain number of his party then bolted his nomination, and published a letter giving their reasons for it. This happened 19 years before the publication of the libel in this-case. Defendant was also permitted to testify to the contents of such publication, and to give the names of those-who signed it. It cannot be seriously contended that these-charges, made so long ago, in the heat of a jDolitical campaign, are competent evidence of the truth of the charges now made by the defendant against the plaintiff.
5. Plaintiff had obtained a change of venue from Ingham. county, where the suit was brought and where he resided, to the county of Eaton. Defendant's counsel were permitted to read from plaintiff's affidavit for this change of venue the statement that he believed that a fair and impartial trial of the cause could not be had in the county of Ingham. This was incompetent, and could not be otherwise than extremely prejudicial to the plaintiff's case.
6. The court instructed the jury as follows:
“If you find as matter of fact that the plaintiff, by innuendo in the declaration, has enlarged the language and charge made in the article, and that the charge by way of innuendo is not supported by the language of the article, then, in that case, I instruct you that the plaintiff, by the introduction of the article, must be said to have failed to prove the charge alleged in the declaration, and your verdict will be for the defendant."
This was error. There is no doubt about the meaning of the language, and in such case it is immaterial whether the innuendo correctly states the meaning. The innuendo will be treated in that case as surplusage, and the issue confined to the plain meaning of the language used. The province of the innuendo is to explain language of doubtful meaning. Bourreseau, v. Journal Co., 63 Mich. 430; Randall v. Evening News Association, 79 Id. 278; Bathrick v. Post & Tribune Co., 50 Id. 629.
The charge of the court was in other respects fair, and covered the law of the case.
7. Defendant was asked in his direct examination by his counsel to state what the plaintiff's reputation for political integrity was at the time of the publication of the article. This was objected to, and not answered, but, following this, the defendant was asked to state what the plaintiff's general reputation for integrity was throughout the State and in the community where he lived. This question was not objected to, and the defendant answered that it was bad. Plaintiff's counsel in their brief claim that the ques tion had in view the political reputation of the plaintiff. The record does not show that fact, but the question asked and answered was one bearing upon the plaintiff’s general reputation. But even if the question first put to him had been answered, in view of the article published and counted upon, it would not have been error. The general rule is that impeaching questions should be directed to the general reputation of the fitness for' truth and veracity; but, in the present case, the defendant had pleaded'the truth of the. publication, and he had a right to show what the political reputation of the plaintiff was, in order to justify a publication. The article charged the plaintiff with being a political traitor, a traitor to his party, and with having entered into a conspiracy to defeat the election of a party candidate whose nomination he had acquiesced in; and the words counted upon as libelous had reference to that fact, as they charged that the plaintiff would “lie in court, or anywhere else,” to defend himself against those charges of treachery set forth in the articles. The defendant had a right to show the articles in full, and to have the language counted upon interpreted in accordance with the meaning of the articles as a whole. He had pleaded the truth as justification, and, as he had charged in the articles that he knew the plaintiff would lie to defend himself against these charges, his only justification was the truth; and he could only show the truth of the charges by proving the general reputation of the plaintiff for political treachery. The general rule is that the plea of justification must be as broad as the charge, and, in point of law, must be identical with it. But here the words import only political treachery, and lying, “even in court,” to defend himself against the charge. The defendant had the right, under the circumstances, to show, not only what the general reputation of the plaintiff was for truth and veracity, but also in justification to show by proper proofs that the plaintiff was generally regarded in that community as a person who, in political matters, was unworthy of belief. This defense was open to proof, and the defendant would have cast upon him the burden of showing it. This would be making a justification as broad as the charge, and, in point of law, identical with it. It would necessarily follow, if this were shown, that the plaintiff’s general reputation for truth was. bad; for it can hardly be conceived that a person whose general reputation for truth is bad, in a political sense, has a good reputation for truth and veracity in other matters.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
McGrath, C. J.
Defendant owns and operates a street railway in the city of Grand Rapids, extending from the center of the city to a pleasure resort known as “North Park,” which is also owned by defendant. Within the park was a switch-back or roller-coaster, owned and operated by one Hathaway. Plaintiff had taken one of defendant’s cars to North Park, and there, while riding upon the switch-back, was injured by the derailing of the switchback car.
It appears that in the vicinity of the switch-back there were buildings, including a band-stand, but whether the switch-back was under a roof, or under the same roof with the building in which the band-stand was located, or how far the track or the place where the accident occurred was from the buildings; does not appear. Carpenters in defendant’s employ were at work in these buildings. Plaintiff sought to show that one of the chips from the building had gotten on the rail, and caused the obstruction, and that defendant’s employes had been negligent in allowing the chips to get upon the track. The only testimony to support the claim that the track was obstructed was that of a son of one of the parties injured, who said that he—
“Saw one [chip] that the car had run over. It was about seven or eight inches long, and lay right down by the side of the track. I saw the shape of the car-wheel upon it.”
It was conceded, as claimed, that the car left the track, and there was testimony tending to show that just before the accident there had been a change made in the track at that point; hence it may have been the then defective •condition of the track that caused the accident. The •only testimony offered to connect defendant in any way with the presence of the chips at the place of the injury was the presence of the carpenters at the band-stand, and the testimony of the parties who were in the car.
Plaintiff says:
“ When I went up to the band-stand, I saw the drips right along by the steps, and where the car went down from the stand. I noticed them about half-way up to the stand from where the car was thrown off. * * * I did not see any obstruction on the track right there at the time I was hurt. I saw them when I got pretty near the band-stand."
Another witness says:
“ I did not notice the chips until I was walking up. * * * I noticed there were chips around me. They were on one side where the car was thrown off. It seemed to be on the east side of the track. * * * I did not notice the chips at any other place than where we were."
Two boys, who were on the car, say that they—
“ Saw chips on the track where we went off, and from there up to the music stand."
The mere fact that carpenters were at work at the building some distance away, and that some of the chips, although made at the band-stand, were found at the place of the injury, would not establish defendant’s negligence. As was suggested by plaintiff’s counsel on the argument, the wind may have carried them to that point. But there was uncontradicted testimony that an hour before the accident Hathaway’s son was at work on the tracks at the very point where the accident occurred, with an adz, “trimming off the center in between the tracks, so as to let the dog over," and had been at work there before that, repairing the track. Hnder this state of facts, there was no testimony that would warrant the jury in finding that the accident was occasioned by reason of the carelessness or negligence of defendant’s servants in allowing the track to be obstructed.
It appeared, however, that defendant had published in the local press an article “ descriptive of North Park, and the grounds, buildings, and attractions there, and of defendant’s railway as a means of going to North Park, and stated, among other things,- that a switch-back railway was being built on defendant’s grounds;” and plaintiff insists that defendant must be considered as inviting plaintiff to visit the resort, and to avail herself of the attractions, including the switchback; and, having invited her upon its premises, it was under obligations to be reasonably sure that it was not inviting plaintiff into danger.
A roller-coaster is not a snare or an explosive. It is, in and of itself, notice of its character and purpose. Its presence and operation involve no danger to those who-keep away' from it, nor does its enjoyment necessarily involve injury. It cannot be said that by granting permission to operate a switch-back at North Park defendant was guilty of negligence, nor that it was defendant’s duty to guard it, or exclude the public from its use. It is not unusual at places of resort to lease to others certain privileges, viz., to operate swings, or merry-go-rounds, or roller-coasters, or to sell refreshments. The proprietors of the resort do' not thereby become insurers against accidents to persons patronizing the lessee, or become liable for his carelessness. It is not uncommon for street railways, steamboats, and railroads to advertise attractions on their routes. They do not thereby become insurers of the persons while in attendance upon the attraction, or responsible for the carelessness of the operators.
Plaintiff relies upon the case of Conradt v. Clauve, 93 Ind. 476, but from an examination of that case the distinc tion is apparent. Defendants were managers of a public fair, and had allotted a portion of the grounds for practice in shooting with a target gun,- — a deadly weapon; but they had omitted to take or see that such reasonable precautions were taken as would shield (not the target shooters) the public from danger, and would notify them that the place was dangerous. Plaintiff paid the admission fee to the grounds, and while therein, leing utterly ignorant of the location and existence of the gun, or that said portion of the ground was reserved for target practice, hitched his horse within the portion of ground so allotted and so negligently left open, and the horse was shot and killed. In the present case it is the participant, who had full notice and knowledge of the use to which the particular portion of the premises was devoted, who complains.
The learned judge was right in directing a verdict for defendant, and the judgment is affirmed.
Long, Grant, and Montgomery, JJ., concurred. Durand, J., did not sit. | [
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] |
Grant, J.
Defendant sbot the plaintiff's dog. Plaintiff brought suit in justice's court, and recovered verdict and judgment for $50. Defendant appealed to the circuit court, where another jury gave him a verdict for $75, and the defendant appealed to this Court. The court below instructed the jury that the defendant was not justified in killing the dog, and that the only question for them to determine was the value of the dog.
1. The charge was correct. The defendant, one morning, saw the dog in front of his house, and found that he had left some tracks on his freshly painted porch. He thereupon procured his gun and shot the dog. Defendant’s wife testified that one night she found the dog in the henhouse; but no damage was done, except that the next morning she found one egg broken. The only other .justification offered for killing the dog was that he came •around the defendant’s house at night, chased cats into the trees, and barked. Defendant, knew that plaintiff owned the dog, but never informed him that the dog gave him any annoyance. The law does not justify one in killing his neighbor’s valuable dog under these circumstances. It might as well be contended that it is justifiable for one to shoot a neighbor’s horse because he is in the habit of breaking into his inclosure, or making a noise around his house at night.
2. The dog was a shepherd dog, and was chiefly valuable for his ability to herd cattle and horses. The plaintiff testified to the characteristics and qualities of the dog, and ’his ability to herd cattle and horses. Several other witnesses also testified as to their knowledge of the dog, and what they had seen him do. These witnesses were all' farmers, and of course knew the value of such a d.og to a farmer who kept stock. These witnesses were permitted, under objection, to testify to the value of the dog. It is insisted by the defendant that this was not a case for an expression of the opinion or the judgment of witnesses as to value, and that the. value of a dog can be shown only by giving testimony of his qualities, and that the jury must make their estimate from such testimony, unless it be. shown that the dog in question possesses a marketable value, from the - fact that he belongs to some peculiar breed, or that he possesses some peculiar -qualities which render him salable at some approximately regular price. To sustain this doctrine, defendant’s counsel cite Dunlap v. Snyder, 17 Barb. 561; Brown v. Hoburger, 52 Id. 15; Smith v. Griswold, 15 Hun, 273. These cases expressly overrule the case of Brill v. Flagler, 23 Wend. 356. We cannot concur in the doctrine of these cases. It is not necessary that personal property must have a market value in order to render such opinions competent. The value of a horse depends upon his qualities for farming, or trotting, or family use, or for many other kinds of work. Clearly, jurors who were not farmers would not be competent to' determine the value of a farm horse simply from a description of the horse, statements of the work he will do, and the qualities he possesses. No doctrine is better settled than that in such case the evidence of farmers, who know the value of such horses, is competent to aid the jury in determining the value. This principle applies with equal force to the case of a shepherd dog, whose value, like that of a horse, depends upon his qualities. One may testify to the value of land, although it has no market value Railway Co. v. Chapman, 38 Kan. 307 (16 Pac. Rep. 695).
Judgment affirmed.
McGrath, C. J., Long and Montgomery, JJ., concurred. Durand, J., did not sit. | [
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] |
McGrath, J.
The complaint alleged that respondent was on the 5th day of September, 1891, engaged in the business of selling and keeping for sale, and sold to Philetus "W. Parrish and other persons, spirituous, malt, brewed, fermented, and vinous liqirors (the same not being proprietary patent medicines), at retail, without having paid the tax, posted up the notice, or given the bond required’, not being a druggist. Testimony was introduced showing that respondent had paid no tax; that no receipt for any tax upon the sale of spirituous liquors had been issued to him, and that no bond had been filed as prescribed by law for the purpose of engaging in the sale of liquors.
The first contention was that respondent had had no preliminary examination. The fact was that he was complained against as Dr. Beach, and on his examination gave his Christian name as Henry, and he was informed against as Henry Beach. The testimony upon the examination was introduced for the purpose of showing that fact, and was entirely competent.
The proofs tended to show that respondent was a druggist, and there was no testimony tending to show that he had not filed a bond as such druggist.
For this error the conviction must be set aside, and a, new trial had.
The other Justices concurred. | [
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Grant, J.
This is an action on the case for seduction. Verdict and judgment were for the plaintiff. Two defenses are set up:
1. That the evidence does not make out a case of seduction, but that plaintiff was induced to yield to defendant’s desires by the blunt offer of wedlock in futuro in exchange for sexual favors in prmsenti.
2. That the defendant was at the time an infant, and therefore cannot be held liable on the ground of his broken promise to marry.
1. Plaintiff was a German girl, about 23 years old at the time of the alleged seduction, and had been in this country about 4 years. The defendant’s father was a farmer. Plaintiff went to work in his family as a domestic in April, 1889, where she remained until March 6, 1890. The only witnesses were the plaintiff and the defendant. Plaintiff testified that the defendant was. kind and good to her; that he treated her all right; that he kissed her, and put his arms around her; that in June he commenced his solicitations for sexual intercourse; that she resisted all his advances until September 9, when she yielded upon his promise to marry her; that the intercourse took place in the house, during the absence of his father and mother; that she did not yield for nearly half an hour; and that she believed him when he promised to marry her, and yielded in consequence of that promise. The defendant was then 19 years of age, and there is no evidence, from any other source than his own testimony, tending to show any previous unchaste conduct on her part. Only two acts of sexual intercourse took place between them. A child was the result of this intercourse.
We do not think it can be said, as a matter of law, that this was a case of mere barter and sale, or of intercourse from mutual desire. It is a significant fact that she resisted his persuasions' for nearly three months, accord ing to her testimony, the truth of which it was the province of the jury to determine. We think this case is expressly ruled by People v. Millspaugh, 11 Mich. 278, which in its facts appears to be nearly the counterpart of the present case. This case is cited with approval in People v. De Fore, 64 Mich. 699. See, also, People v. Gould, 70 Id. 245; Boyce v. People, 55 N. Y. 644; Kenyon v. People, 26 Id. 203. The case was properly submitted to the jury.
2. This is not an action for a breach of contract of marriage. It is an action of tort, by which the promise was made the means to accomplish the wrong. Infancy cannot be set up as a defense in such a ease
The judgment is affirmed.
The other Justices concurred. | [
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] |
Montgomery, J.
The bill in this case was filed to-restrain the collection of taxes assessed against property owned by complainants. This tax was assessed for the paving of Kosciusko* Eighth* and Yine streets in said city. The assessment was made on the 24th of July* 1888* and the bill was filed on the 13th of September, 1890.
A large number of objections are made to the proceedings* all of which have been carefully considered; but, if it be conceded that there are irregularities which would have proved fatal to the proceedings if the complainants had acted promptly* we do not think they are entitled to relief in a court of equity under the circumstances of this case. As already stated* more than two years elapsed after the assessment of the tax before the filing of the bill. During this time the work was allowed to progress without objection, so far as the record discloses, on the part of any one of these complainants. All of the complainants* with one exception* paid the first installment of the tax assessed.
Section 17* chap. 26* of the charter of Manistee* provides that—
“No public work* improvement* or expenditure shall be commenced* nor any contract therefor be let or made, except as herein otherwise provided* until a tax or assessment shall have been levied to pay the cost and expense thereof* and no such work or improvement shall be paid for, or contracted to be paid for* except from the proceeds of the tax or assessment thus levied.”
These complainants knew of this provision of law* knew that their lands were so situated with reference to the improvement that any assessment* whether on the basis of benefits or frontage upon the streets* would include such lands, and yet they allowed the contractors to go on with the work, and reaped the benefit of the same. It is beyond question that under these circumstances a reassessment for these benefits might be made. The case falls within Byram v. Detroit, 50 Mich. 56, 58, and what was said in that case is entirely appropriate to the case under consideration:
“ The bill in this case was filed in September, 1881, long-after the work was completed and accepted, and complainants had the benefit thereof. They have not paid or offered to pay any part of this tax, but seek to avoid payment of the whole thereof. * * * Had they acted promptly, the city might have applied to the Legislature, and obtained ample authority to make a reassessment, and thus have collected the amount thereof before now. In view, therefore, of the delay; of the fact that the complainants are presumptively benefited by the pavement, and should therefore pay their equitable proportion of the tax; of the fact that the Legislature can still authorize a reassessment; and that, if the tax is as claimed, void, they have a legal remedy, — we are of opinion that the relief prayed for should not be granted.”
See, also, Ritchie v. City of South Topeka, 38 Kan. 368 (16 Pac. Rep. 332).
The decree dismissing the bill will be affirmed.
The other Justices concurred.
Act No. 48, Laws of 1882. | [
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] |
McGrath, C. J.
This is certiorari to review proceedings had to detach certain territory from fractional school-district No. 1, composed of parts of Tittabawassee, Koch-ville, and Frankenlust townships.
The proceedings originated with a petition of 11 freeholders of the township of Frankenlust, who prayed for the detachment of the territory from school-district No. 1, composed as aforesaid, and the annexation of said territory to fractional district No. 3, composed of territory in Frank■enlust and Monitor townships. The notice by the clerk of Frankenlust township to the inspectors set forth the desire of the petitioners, but the notices posted called a meeting “to take into consideration the propriety of detaching said territory,” and contained no reference to the annexation prayed for. The record of the meeting held recites that it was called at the instance of the 11 freeholders of Frankenlust, “ praying to detach ” certain territory, describing it, “from school-district No. 1, * * * and attach the same to school-district No. 3.” At the meeting the inspectors voted to detach the territory from district No. 1, but no action was taken attaching it to No. 3. The record concludes as follows:
“Ruled by the chair, that no action be taken in regard to attaching the land so detached from fractional school district No. 1. On motion, the meeting adjourned.”
The petition for the writ of certiorari alleges that no notices of such proposed change were posted in the township of Frankenlust, and neither the record nor return contains any» evidence of such posting, or allegations that in that respect the law was complied with.
The statute contemplates the posting of notices in each township affected by the alteration. As is said in Gentle v. Board, 73 Mich. 40, 45:
“The object of this notice is to enable parties, whose interest may be affected, to be heard before any action is taken.”
In the present case the petitioners asked that the territory be detached from one district and attached to another. The notice posted contemplated detachment only, and that notice was not posted in the township where petitioners resided.
It is unnecessary to notice the other points raised. Notice as prescribed by the statute was necessary to confer juris diction to act.
The proceedings must be quashed and held for naught, with costs to petitioner.
The other Justices concurred.
3How. Stat. § 5040. | [
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] |
McGrath, C. J.
This is an action to recover taxes claimed to have been illegally assessed and paid under threat of levy and protest. The trial court found, among other things, as follows:
“1. That prior to the 1st day of April, 1889, the commissioner of highways in said township had drawn a large number of highway orders, payable out of the highway funds belonging to the different highway districts of said township numbered in said orders; that said orders had been drawn from time to time to pay for work and labor performed on the roads of said several districts, or for plank or material employed in building or repairing said roads in said road districts, from the year 1882 to 1888, inclusive, and amounting in all to twelve or fifteen hundred dollars.
“2. That at the township election held in said township in April, 1889, the following resolution was adopted, to wit:
“' On motion of P. W. Hinman, which was seconded by Ed. Moffit, the following resolution was adopted, viz.: That the town ship board, and commissioner of highways shall not lay out, open, or take up or repair, any highways for one year, unless some highway shall become dangerous to the traveling public, and not then if it can be repaired with district work (and amended here by adding), unless considered absolutely necessary by township board; and that we raise one-half of one per cent, on assessed valuation for special highway tax to pay highway indebtedness, as far as it will go. Carried. Amended by.Warren Seaman, and amendment carried; also motion as amended.’
“ 3. That there was no highway indebtedness of said township at that time, and that the indebtedness referred to' in said resolution, and which said tax was voted to pay, was the indebtedness owing by the various road districts in said township, as evidenced by said highway orders drawn by the commissioner of highways on the highway tax belonging to each of the several road districts in said township.
“4. That said resolution was certified by the township clerk to the board of supervisors, and the board of supervisors, at their annual session in October, 1889, voted to authorize the supervisor of the defendant township to levy a special highway tax of $1,114.43, and that the said supervisor of said township did proceed to levy the same on all the taxable property of said township.
“5. That all of said highway orders were drawn upon the road districts outside of the road district in which said plaintiff resided, and in which he owned property, upon which said tax was assessed; that road district number four in said township, in which the plaintiff owned property of the assessed value of $-, was in arrears at the time of the assessment of said tax to the amount of $141.48.
“ 6. That on the 20th day of February, 1890, Frank Kose, the township treasurer of said township, was proceeding to collect the tax assessed on the assessment roll of said township, and called upon said plaintiff and demanded of him the payment of said special highway tax, and then and there threatened to levy the same on the stock of merchandise in the store of and belonging to said plaintiff; that said plaintiff, in order to ju'event said levy, under compulsion, paid said special highway tax, amounting, with fees of said treasurer, to the sum of $29.36, under protest, which was in writing.”
The finding concludes as follows:
“From the facts found as above, I find as a conclusion of law that said levy of said special highway tax was illegal and void, and that the payment of the same was involuntary, and its collection by said Frank Rose, township treasurer for said township, was an illegal exaction, and that said plaintiff is entitled to a judgment against said defendant for the amount of said tax and fees, amounting to the sum of ,$29.36, and interest at six per cent, since the 20th day of February, 1890, to date, $31.56, together with costs.”
It is insisted that the only reason the plaintiff was permitted to recover was because the court found that there was no highway indebtedness of the township at the time the tax was voted. The tax was alleged to be invalid because it was voted to liquidate a district, and not a township, debt. If the resolution upon which the vote was had had expressly said that the tax was to pay a district debt, the tax would be invalid, and it is no less invalid because the resolution alleges that its purpose is to pay “ highway indebtedness,” when in fact no township indebtedness of that character existed. The court has found that the purpose of the tax was to pay a district, and not a township, debt. That there was no highway indebtedness of the township was a finding in connection with the further finding set forth in the same paragraph.
It is next claimed that the facts do not support the finding that no highway indebtedness of said township existed when the tax was voted. The township clerk reported to the board, at the annual meeting held in 1889, accounts with the several districts, 11 in all, from which it appeared that there'was due to districts numbered 3, 5, 6, 8, 9, and 10 the sum of $462, and that there was due from districts numbered 1, 2, 4, 7, and 11 the sum of $799. It was claimed that the indebtedness to the first-named districts was a highway indebtedness of the township. It further appeared, and the trial judge so found, that there was an outstanding township order held by one White, amounting to about $372, which had been issued by the township board to take up orders issued 'by the commissioner, which were drawn upon and chargeable to road districts numbered 2, 3, 4, 5, and 6. It is not claimed that these orders, so retired, were not proper charges against the district funds upon which they were drawn, nor does it appear that the amounts.thereof were charged up to the districts upon which they had been drawn, or that the substitution of the township order was for the purpose of an adjustment of balances between the township and such districts. It is insisted that this order was a township indebtedness. It is further claimed that, of the amount which appeared to be charged to district No. 1, the sum of $100 was a proper township charge, and that this sum should be added to the indebtedness of the township, notwithstanding it had already been paid by the township, and was not an outstanding liability.
How. Stat. § 1325, provides that highways shall be maintained by the labor of the inhabitants residing in, and by assessments upon the property situated within, the several townships, and for the more convenient expenditure of such labor and making of such assessments the township may be divided into road districts. Section 1326 provides that the commissioner of highways shall render to the township board, at the annual meeting thereof in each year, an estimate in writing of the amount of highway labor which, in his judgment, should be assessed for the next ensuing year, and of the improvements necessary to be made, and the amount of money tax that should be levied for that purpose, beyond what such estimated highway labor will accomplish. Section 1327 provides that at the next annual township meeting the electors may determine the amount of highway labor and the amount of money tax to be assessed. Section 1448 provides that when any order for the payment of money, lawfully drawn by the highway commissioner upon the treasurer, shall have been presented to such treasurer, and, by reason of lack •of funds, pa3ment shall not be made within six months from such presentation, such treasurer shall, at the request of the holder, make and deliver to such holder a statement in writing of such fact; that such holder may present such statement, with such order, to the township clerk; that such clerk shall make a minute of the number, date, .and amount of such order. Section láá9 provides that the clerk shall include in his annual statement to the supervisor the amounts of all such orders, and, if such orders were drawn upon any fund, to be raised by any road district, or any other particular portion of such township, such fact shall be certified by such clerk, and the same shall be assessed upon the proper township, locality, or road district, and collected as other taxes.
The statute evidently contemplates that each district •shall bear its own burdens. It points out distinctly in what manner moneys shall be raised to pay outstanding-orders, whether chargeable to the township generally, or to particular portions of the township, or to road districts. Its design is that these orders, if chargeable to certain road districts, shall be paid out of moneys collected from such districts. It would seem here that moneys collected from certain road districts had been expended in others. The proper course would seem to be an adjustment of those matters, not by a general tax upon the township, but by an assessment upon those districts from which balances are due. Nor is it within the power of the township board to make that a township charge, which the statute designs should be a district charge, by the retirement of orders drawn upon district funds, and the issue in their stead of township orders. Manistee Lumber Co. v. Township of Springfield, 92 Mich. 277. The resolution submitted to the electors does not in terms refer to a township highway indebtedness, and the records do not disclose such an indebtedness to have existed at that time.
There .is no force in the objection that the reasons set-forth in the protest are ins%fficient. The ground upon which the court found the tax to be invalid is set forth in the protest as follows:
“Because said tax is levied against all the property of the township indiscriminately, to pay highway orders payable out of the highway moneys of certain road districts, instead of being levied against the property of each road district on which said orders are drawn, and out of the funds of which they are made payable.”
The judgment is therefore affirmed.
The other Justices concurred. | [
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] |
Durand, J.
On October 7, 1889, the plaintiffs, Who were practical miners, entered into a verbal agreement with the defendant company, through its mining captain, to go to work in what- is called the “ Cave Pit," and were to receive $1.50 per ton for all the ore they produced, as long as they could malee it pay. The plaintiffs practically agree that the mining captain, with whom the contract was made, said to them that he would give $1.50 a ton for all the ore they could produce anywhere in the pit, to which they responded, “ All- right; we will take the contract, and work it as long as toe can malee it pay.” The plaintiffs were to put in skip-roads for hoisting the ore, and were to put it in position for hoisting, and the defendant was to furnish the hoisting machinery and do the hoisting. Acting under this contract, the plaintiffs went to work in the pit. They leveled off a place, and put down some plank platforms to pile ore upon, and sorted out some ore from the loose rock, and took some ore also out of a seam in the foot-wall of the pit, and placed it on these platforms. On the morning of the third day after they began to work, the captain of the defendant company went down, and found the plaintiffs digging into the foot-wall of the. pit, upon which he ordered them to quit mining at that point. A controversy then arose between him and the plaintiffs in reference to where they had a right to dig, and as to the extent of their right, which ended by the plaintiffs quitting the work.
The plaintiffs contend that they had a right to mine at. any point they chose, and that they had a right to dig into and through the foot-wall, and that they had a right, under their contract, to mine all ore which might be newly discovered by them after digging through the walls of the pit, and that they were not confined to such ore as they might find within the pit as it had already been opened and worked.
The defendant contends that, even if the contract is a valid one, it merely had reference to such ore as might be found within the pit as it had been opened and worked, and that it gave plaintiffs no right to dig or break through the walls of the pit, and mine ore found outside of the walls; that it was essentially what is known among minors as a “ scramming contract/-’ which is one that confers the right to mine and gather such ore as may be left within the limits of a mine or pit as it has been opened and mined before; that nothing beyond that was ever thought of; and that the act of the plaintiffs in breaking through the walls of the pit, and mining in a newly-discovered vein of ore, was never contemplated by the parties, and that it -would greatly endanger the property of the defendant, as well as the lives of the miners, by rendering it likely to cave, as had happened before, and for which reason it is alleged this pit was named “ Cave Pit;” and the defendant insists that the plaintiffs were stopped from digging in the foot-wall for the reasons stated, while the plaintiffs contend that the real reason was that the defendant thought they would make too much money if allowed to mine in the rich vein of newly-discovered ore beyond the foot-wall.
The plaintiffs also contend that the term employed in the contract, “as long as we can make it pay,” has a special signification among miners, and means as long as they could make “company account” wages, being such wages as the company was then paying by the day for such work, and they introduced some testimony, against the defendant’s objection, tending to prove this to be -so; while the defendant denies that this is so, and contends that the term has no special signification.
The plaintiffs also contend that they had discovered a body of ore which amounted to at least 17,000 tons, and that, if they had been allowed to mine it, — as they claim they had a right to do under the contract referred to,— they would have realized a profit of $22,000; while the defendant contends that this is not true, and that the dangers and contingencies were so great that no estimate of profits could be made which would be) at all reliable, or upon which the jury could intelligently act in attempting to decide upon what the damages should be.
The questions of fact were all fairly submitted to the jury, who found a verdict of $1,000 for the plaintiffs, and a judgment for that amount was thereupon rendered in their favor.
The defendant claims error.
The questions we are called upon to consider all relate to and depend upon the two' main propositions in the case, which are whether or not the contract is of such a character as to entitle the plaintiffs to damages for its breach, and, if it is, then whether or not the profits which the plaintiffs claim they would have made, if they had been ■allowed to proceed to mine the. ore as long as they could make it pay, are so speculativép uncertain, and contingent as to make it improper to permit the jury to pass upon them in deciding upon the damages to which the plaintiffs •are entitled.
We have sought in vain for a valid reason to sustain 'the plaintiffs in their contention in this case, but we cannot do so. We do not think the contract is of such a character as to be enforceable as an executory contract. The agreement was simply that the plaintiffs would work at mining the ore in “Cave Pit” for 11.50 per ton as long as they could make it pay. No limitations were put upon their methods, or how or in what manner they should conduct the work in order to make it pay, nor does it give the defendant any voice in deciding upon whether or not the plaintiffs could make it pay, nor does it place the subject of the contract upon any certain basis upon which a jury can lawfully and justly arrive at a fair rule of damages in case of its violation. Under this contract, the plaintiffs must be presumed to be the sole judges of whether or not it would pay^them to do the work, and of how long they should continue it. Neither do we think that the clause, “as long as they could make it pay,” has any special signification in this case. It is not in any sense ambiguous, and can have no different meaning when applied to mining than it has in any mechanical or agricultural employment. It is a term used daily in all the different enterprises and occupations in which men are engaged, .and its scope is so well understood that no evidence is necessary to show what it is, or that it means anything different in one case than in another.
When a party agrees to sell articles of merchandise, or deliver the productions of his labor, to another at a certain price as long as he can make it pay, every one must clearly understand that the/term is dependent on conditions over which the promisee has no control, and, in so far as any one has the power to make the term effective, it is lodged solely in the promisor, who by judicious purchases or skillful manipulations of labor may be able to make a transaction pay when a more careless, negligent, or improvident person would be unable to do so. This serious element of uncertaintyjiestroys all mutuality in the contract, and gives the promisor full power to say when a further execution of the contract will not be advantageous, because he cannot make it pay. Contracts cannot arise where there is no mutuality, nor can they arise from the action of one party alone where the other has no power to prevent his action.
The uncertainty of the term, “as long as we can make it pay/5 employed in this contract, is illustrated in the case of Cummer v. Butts, 40 Mich. 322. In that case the contract stipulated that on 60 days5 notice it might be canceled by either party for “good cause.55 One of the parties terminated the contract, whereupon the other party, who insisted that no “ good cause55 for his dismissal existed, brought suit to recover for the profits he would have made if the arrangement had not been interrupted. Mr. Justice Graves, in an opinion concurred in by the entire Court, says:
“ The difficulty is inherent. It exists in the terms adopted by the parties.
“The requirement of f good cause,5 as something on which the right to revoke by one or the other should depend, is, as here introduced, too vague to .be fairly intelligible. It is manifestly applied to each party, but the phrase, c good cause,5 in such connection, as to parties and subject-matter, has no such distinct sense as to furnish a common and intelligible criterion for tbe parties, or any determinate sense whatever. It is impossible to say that the wills of the parties concurred, and that each meant exactly what the other did, or even to say what either meant. * * * The case is one where the parties have failed to express themselves in terms capable of being reduced to lawful certainty by judicial effort.”
The same general rule is laid down in cases cited in 3 Amer. & Eng. Enc. Law, 844, 845, and notes; Blanchard v. Railroad Co., 31 Mich. 43; Caswell v. Gibbs, 33 Id. 331; Wilkinson v. Heavenrich, 58 Id. 574.
Under this view of the law, we must hold that the plaintiffs cannot recover under this contract for any prospective profits which they might have made if they had been allowed to complete it, and the jury should have been so instructed.
As this disposes of the case in favor of the defendant, it is unnecessary to discuss the question of damages, or any other question raised by the record.
It follows that the judgment must be reversed, with costs of this Court, and a new trial granted.
The other Justices concurred. | [
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Grant, J.
The will of one William Dawson, the former husband of defendant, contained the following provisions:
“ 1. I give, devise, and bequeath all of my personal estate, goods, and chattels, of what nature or kind soever, to my beloved wife, Marian A. Dawson, after paying my just debts.
I give, devise, and bequeath to my wife, Marian A. Dawson, all of my real estate of every kind, and wheresoever situated, to be used and enjoyed for and during the full term of her natural life.
“3. I give and devise to my sister-in-law, Annie Sherman, her heirs and assigns, the sum of five hundred dollars, to be paid to her at the death of my said wife.
“4. I give and devise all of the rest, residue, and remainder of all my real estate to the children of my sister, Mary Jane Mikesell, and my brother, Jacob Dawson, their heirs and assigns, to be divided equally between them, share and share alike.”
Plaintiffs, who are the children of Mary Jane Mikesell and Jacob Dawson, brought this action for waste, under section 7940, How. Stat. The evidence on the part of the plaintiffs tended to show that the defendant had removed all the timber upon 8-J acres of land, and had cleared it for farming purposes .in a husbandlike manner; that a wood lot of 13 acres remained; that some of the timber cut was used upon the place for repairs, but the greater part was taken away; that about 125 large trees, and 500 to 600 saplings, not exceeding 6 inches in diameter, were cut; that the large trees were scattered over the entire wood lot; that a portion of the land cleared was swamp, and fit for nothing until cleared by the defendant. The farm consisted of 80 acres. One-half of it was mortgaged for $1,000 by the testator. The evidence also tended to show that the cutting of this timber was not in accordance with good husbandry.
At the conclusion of the plaintiffs’ evidence the court, upon motion of defendant’s counsel, directed a verdict for the defendant, upon the ground that the will gave the defendant a life-estate, without impeachment for waste, and that the only waste for which defendant would in any manner be liable would be equitable waste, for which the only remedy of the plaintiffs would be in chancery, to restrain her from committing further waste.
It is unnecessary to determine whether the defendant; under the terms of this will, was dispunishable for waste. The plaintiffs cannot, under the circumstances of this case, maintain an action at law. Their remedy is in equity, where the defendant may be restrained from the commission of further waste, and damages allowed for the waste already committed. 2 Wood, Landl. & Ten. § 426.
Under the terms of the will the devise to Annie Sherman is a charge upon the real estate, and must be paid before there can be any residue or remainder for the devisees in the fourth clause. In the case of land chiefly valuable for its timber, if the* remainder-men could maintain an action at law for waste, the result might be to defeat the devise which is given priority. In such a case equity will hold the damages collected for the benefit of the devisee, who must be paid before the remainder-men take.
The judgment is affirmed.
The other Justices concurred. | [
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] |
Grant, J.
After the decision in Knight v. Hartman, 81 Mich. 462, plaintiff discontinued that suit, gave three months’ ■notice to quit, and commenced the present suit to recover possession of the land, in which he had verdict and judgment.
In addition to the facts there stated, it appears that the father of plaintiff deeded this land to defendant, in 1867, for $2,000. One hundred dollars was paid down, and a mortgage given back for $1,900. Defendant made 8 payments upon that mortgage, amounting in all to $214.20, and extending from 1871 to 1887, which payments were indorsed upon the note accompanying the mortgage. Defendant’s grantor died in 1887, at the age of 100. His son, William G. Knight had attended to his business for about ten years previous to his death. The amount then due upon the mortgage was about $6,000, which was greatly in excess of the value of the land. The deceased left no debts, and no minor heirs. It was agreed between the heirs that William G. and Godfrey E. Knight should attend to the settlement and division of the estate without the expense of administration. Defendant was financially irresponsible, and all that could be obtained for the debt was the land. Defendant, knowing that he could not pay the mortgage, offered at first to raise $2,000, if they would take that in discharge of the debt and mortgage. They agreed to accept-this, and gave him time to raise the money, but he could not do it. They then proposed to take the land for the mortgage debt. At the same time they proposed to resell it to him for $2,000. Defendant and his wife executed a, deed to the two Knights, and they executed to him the contract in question. The note and mortgage were surrendered.
Defendant’s theory appears to have been that the deed to' the Knights was merely for their accommodation. He testified as follows:
“Q. Why didn’t you raise the money within that time to pay this debt ?
“A. I wasn’t to raise any money; that wasn’t the bargain.
“Q. You were to live there indefinitely, were you?
“A. No; I was to pay it.
“Q. How were you to pay it if you wasn’t to pay any money?
“A. Well, I would pay for it after he had deeded it back to me.
“Q. Was it to be deeded to you before you had the money to pay the debt?
“A. That was the way they agreed to; they agreed to it, and Godfrey was to write it in himself.”
The court instructed the jury that their verdict depended upon the nature of the transaction between the parties; that if they found that the defendant made an absolute sale of the premises to the Knights in consideration of the giving up of the mortgage, and that they then resold the premises to the defendant at an agreed price of $2,000, and that the contract was executed in pursuance of, and as evidence of, the agreement of sale and purchase, their verdict should be for plaintiff; but if, on the other hand, they found that the arrangement was that, to save the expense of a foreclosure of the Godfrey Knight mortgage, and to enable the heirs of Godfrey Knight to settle their father’s estate, he agreed to deed the property' to the Knights, and take the contract of sale, such contract would stand in place of the mortgage, and their verdict should be for the defendant.
The defendant requested the court to instruct the jury to find a verdict for him, on the ground that the contract was a mortgage. His counsel rely upon Batty v. Snook, 5 Mich. 231; Enos v. Sutherland, 11 Id. 538; and Ferris v. Wilcox, 51 Id. 105. Neither of these cases controls the present one. An examination of them will readily disclose the difference in the facts.
The evidence on the part of each of the parties tended to sustain the claim made. The question was one of fact for the jury, and their finding against the defendant is conclusive. The defendant himself valued the property at about half the. amount of the mortgage.
The two cases first above cited were in equity, where this-Court has jurisdiction to determine the facts, while in the last case there was no conflict in regard to the facts.
The court properly rejected evidence by the defendant himself of payments claimed to have been made to Godfrey Knight in his life-time, because the facts to which he sought. to testify were equally within the knowledge of the deceased, and were therefore incompetent under the statute.
We find no error upon the record, and the judgment is affirmed.
The other Justices concurred. | [
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] |
Grant,- J.
This is a proceeding by the city of Detroit to condemn lands for street purposes.
In the resolution of the council, and in the petition, the improvement prayed for is described as follows, viz.:
“A public improvement, to wit, the opening, widening, and extending of Warren avenue and Plymouth avenue, so that the same shall be of the uniform width of 100 feet from Grand River avenue to the westerly city limits.”
The petition then gives the different parcels of land desired for the purpose, and the names of the owners. A small piece of land belonging to the respondents the Robinsons was condemned, and damages awarded at the sum of $4,850. This land, with other land, was used by the respondents as a vineyard, and was claimed to be very valuable for that purpose.
1. Certain parties who owned some coal sheds situated upon the land of one of the railroad companies were not made respondents; and it is therefore insisted that the proceedings must fail, inasmuch as these sheds, or part of them, are within the proposed street, and that all owners of property interested should be made parties. The complete answer to this claim now is that the petitioner has settled with the owners of these sheds, and, so far as they are concerned, has obtained all their interest.
2. It is next insisted that the proceeding is fatally defective in that two public improvements are attempted to be made in one proceeding. We do not think the objection well taken. 'The improvement, when made, will constitute Warren and Plymouth, avenues a continuous street. This continuous street was to be rendered uniform in width by the proposed improvement. It is not necessary in these proceedings that all the pieces of land to be taken should be contiguous. The object of the proceeding, as expressed in the resolution and petition, was to form one continuous street of uniform width. In such case the fact that different portions of the same highway are called by different names does not render separate proceedings necessary for each named street. We therefore think that this proceeding was properly treated by the petitioner as one improvement.
3. The respondents insist that the award of damages was inadequate. Witnesses for the petitioner valued the respondents’ land at from $2,000 to $2,500 per acre. Forty-seven one hundredths of an acre was taken. These witnesses did not include in their values the value of the grape vines destroyed. One witness for the respondents testified that 400 vines would be destroyed or rendered useless by the improvement; that the wine manufactured from the grapes sold for $1.50 per pint; and that each vine produced annually $50 worth of wine. This would make the gross value of the wine produced from these 400 vines $20,000 annually. A witness for the respondents testified that these vines were worth $10 apiece. Other competent evidence was given as to their value, age, and condition. But the respondents insist that they were of peculiar value, and therefore that those witnesses, who had knowledge of grape culture and the value of grapevines, were not competent to testify in regard to them. We think the testimony was competent, and that the weight to be given to it was for the jury. The fact that no witnesses contradicted the one who testified that $20,000 worth of wine was produced annually from these vines would not have justified the court» in saying that that should be accepted by them as a fact. If that amount of wine had been produced, still the jury would have had no sufficient data from which to estimate the damage on account of the destruction of the vineyard, because the respondents gave no testimony showing the cost of cultivation or of manufacturing the wine. According to the testimony of the petitioner, the land was worth about $934, and therefore the respondents received about $10 per vine.
We find no error upon the record, and the award is confirmed.
The other Justices concurred. | [
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Montgomery, J.
The respondent was convicted in the Van Burén circuit court on an information charging that he did on the 28th day of November, 1891—
“ Then and there sell and furnish to one Myron C. Dolbie a certain quantity of spirituous and intoxicating liquors, to wit, one-half pint of brandy, he, the said Matthew Murphy, not being a druggist or registered pharmacist selling such' liquor under and in compliance with the restrictions and requirements imposed upon druggists and registered pharmacists by the general laws of the State of Michigan, but contrary to the provisions of a certain resolution adopted by the board of supervisors of the county of Van Burén, State of Michigan, on the 4th day of March, A. D. 1890, in pursuance of the provisions of Act No. 207 of the Public Acts of the State of Michigan for the year A. D. 1889; the aforesaid sale and furnishing of said spirituous and intoxicating liquors having then and there been made by the said Matthew Murphy in violation of and contrary to the provisions of said Act No. 207 of the Public Acts of the State of Michigan for the year A. D. 1889.”
Act No. 207 is the “Local Option Law,” so called, and the first question raised upon the record is whether a druggist who fails to comply with the requirements of the law, by filing his bond with the county treasurer, is subject to prosecution under this act. Section 1 of the act makes it unlawful for any person to sell spirituous or intoxicating liquors in any county where Act No. 207 is in force, and contains the following proviso:
“Provided, however, that the provisions of this section shall not apply to druggists or registered pharmacists, in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State.”
Section 2 provides that upon the adoption of such resolution prohibiting the manufacture and sale of liquors, as provided by the act, the provisions of the general laws relating to the liquor traffic—
“ Shall be, and the same are hereby, declared suspended and superseded: * * * Provided, however, that all sales of liquors by druggists or registered pharmacists in such counties shall be under the restrictions and requirements imposed upon them by the general laws of this State.”
It appears that the respondent is in fact a druggist, but it does not appear that he had filed his bond, as required by law, with the county treasurer. The respondent contends that the moment it appears that he is a druggist it appears that he is not amenable to the provisions of Act No. 207, and that he must be prosecuted, if at all, under the general statute, Act No. 313, Laws of 1887. We think, however, that this was not the purpose of the Legislature; that it was not the design to make one law for the saloon-keeper and another for the druggist, except in cases where the druggist has brought himself under the provisions of the general law, by having filed his bond with the county treasurer as required by law. The information in this case negatives that he is a druggist selling liquor under and in compliance with the restrictions and requirements imposed upon druggists and pharmacists by the general laws of the State, and, as druggists and pharmacists who are selling liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of the State are the only ones excepted from the provisions of section 1 of the act, it follows that an offense is charged against the respondent.
2. The circuit' judge instructed the jury that Act No. 207 was in force in Van Burén county on the 28th day of November, 1891. The only evidence offered to show this, so far as the record discloses, was a resolution which, after stating that the board of supervisors were proceeding under the'authority conferred upon them under the provisions of Act No. 207, proceeds as follows:
“It is hereby ordered that, on and after the 1st day of May, 1890, the manufacture, sale, keeping for sale, giving away, or furnishing any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors * * * shall be and is prohibited within the limits of the said county of Van Burén.”
The day when the resolution shall take effect follows the statement that it shall be unlawful for any person to sell, etc. It also contains the further statement that the provisions of the general law shall not be in force after said, date. This is substantially all that the resolution contains, as it appears in the record. It is possible that in reading the resolution into the record the preamble was omitted, but of this we cannot take notice. Dealing with the resolution as we find it, it was not sufficient evidence to warrant the court in finding that Act No. 207 was in force in Yan Burén county. Section 13 of the act provides:
“Such resolution shall be spread in full upon the journal of their proceedings, and shall set forth in a preamble the fact that an election submitting the proposition of prohibition, as aforesaid, was duly called and held in the county; that sufficient returns and statements of the votes cast in the several townships, wards, and election districts in the county have been made, as required by this act; that such statements have been canvassed by them, and the result thereof ascertained; that such result was in the affirmative of such proposition, giving the majority; and that the same has been so determined and declared by them.”
Section 17 provides:
“Upon the trial for any violation of the provisions of section 1 of this act, it shall be competent to introduce the record, or a certified transcript thereof, of the preamble and resolution of the board of supervisors of such county, required by section 13 of this act, and such record and. transcript shall be the evidence that the provisions of this act are in full force within such county.”
And by section 14 it is provided that—
“ The regularity of any proceedings prior to the adoption of such resolution by the board of supervisors shall not be open to question on the examination or trial of any person for a violation of any of the provisions of section 1 of this act.”
It is contended by the prosecution that the court was authorized to take judicial notice that prohibition was in force in Yan Burén county. Without passing upon the question of whether it would be competent for the Legislature to provide that the resolution or enactment of the board of supervisors be treated as a general law, of which courts may take judicial cognizance, it is sufficient to say that by the very clear provisions of the act in question the Legislature negatived any such purpose, but has prescribed what shall constitute the evidence of the fact that the provisions of the law are in force in a particular county.
3. Respondent’s counsel requested the court to charge the jury that, if the prosecution was brought about by Dolbie being hired to procure the liquor for the purpose of prosecuting respondent and convicting him, the prosecution could not be sustained. It does not appear that any public' officers were concerned in sending to the respondent for the liquor in question, and the request was properly refused. The fact that the liquor was purchased with a view to instituting prosecution based upon evidence of that sale was a circumstance which affected the credibility of the witness Dolbie, and undoubtedly, had the circuit judge been requested so to instruct the jury, he would have done it; but, even though Dolbie had been equally culpable with the respondent, this does not justify a violation of the law by him.
• No other question is raised which is likely to arise upon another trial.
For the error pointed out the conviction will be set aside, and a new trial ordered.
The other Justices concurred. | [
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Grant, J.
The bill in this case was filed for the purpose of having a mortgage declared paid, canceled, and discharged.
Defendant was a former owner of the land upon which the mortgage was given. He sold the land to one John Herman for $3,000. Eight hundred dollars was paid in cash, $200 secured by a chattel mortgage, and $2,000 secured by a purchase-money mortgage upon the land, which is the mortgage complainant now seeks to have canceled. Herman obtained a loan of $1,000 from complainant, which he agreed to pay upon this mortgage, and gave her a second mortgage upon the same property as security. Herman obtained a draft for $1,000 which he sent by mail to defendant, who applied $200 in payment of the chattel mortgage and $800-upon the real-estate mortgage. Herman became unable to pay, and subsequently deeded the land to complainant. In this deed the Noble mortgage was excepted from the covenant-of warranty. Complainant, her husband and son, were present when Herman wrote the letter containing the draft, and all testified that it directed the defendant to apply it upon the farm mortgage given by Herman to him. Complainant rested for nearly two years in the belief that this was done, and knew nothing to the contrary until informed by the defendant, about the time she obtained the deed from Herman. Complainant has paid the amount of the mortgage, less $200.
If Herman directed the application of the money upon the mortgage in question, then complainant is entitled to relief; and this is the material question of fact in the case. The circuit judge made a written finding, in which he said he was convinced that the letter inclosing the draft directed the application of the entire amount upon the mortgage, but that afterwards Herman wrote another letter, directing the application as defendant claims to have made it, and that this second letter was received before the application was made.
We find no competent or reliable evidence to sustain the finding as to this second letter. The defendant and his wife both testify that the instructions were in the letter containing the draft, and the defendant himself testifies that he received no other letter containing such directions. The only evidence of this fact I find in the record is in the testimony of a Mr. Spencer, who drew the deed from Herman to complainant, and who testified that Herman told him that he at first directed the payment of the entire amount on the farm mortgage, but that some time afterwards he wrote defendant another letter, requesting him to apply $200 on the chattel mortgage. This testimony, besides being incompetent, is deserving of little credit, in view of the other testimony referred to. No letter from Herman to defendant was produced, and the letter inclosing the draft was shown to have been lost. The hearing was in open court, where the judge saw the witnesses. We should therefore hesitate to set aside the finding of the judge, except in a clear case. But a careful examination of the record has convinced us that the finding of the judge in this respect is incorrect, and that the application of tbe entire amount was directed on tbe farm mortgage.
It is contended by tbe defendant tbat tbe complainant is estopped to deny the amount of tbe mortgage by her deed from Herman. We see no room for tbe application of tbe doctrine of estoppel. Tbe $200 was not deducted from tbe purchase price of tbe deed, and no agreement was made between tbe complainant and defendant which affected tbe rights of either, or changed the situation of tbe parties. This $200 was, in fact, paid upon tbe mortgage, and she has done nothing to waive tbe application as directed.
Tbe decree will be reversed, with tbe costs of both courts, and decree entered here for complainant.
Tbe other Justices concurred. | [
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] |
Montgomery, J.
A rehearing was ordered in this case after full consideration, the members of the Court who took part in the former decision being convinced that the questions involved deserve re-examination. This rehearing has been had, and we feel constrained to depart from some of the conclusions stated in the former opinion, which, while having the support of respectable authority, we find to be in conflict with some of the former rulings of this Court, which for the time escaped attention. For convenience we will consider the questions involved in the same order adopted in the former opinion.
1. The first question considered was whether counsel for the contestants abused his privilege in his opening state ment to the jury. On tbe former hearing tbe sitting members of tbe Court were impressed witb tbe view that tbe trial judge bad not sufficiently restricted contestants’ counsel in tbis case, but a fuller argument and examination have convinced us that tbe statements of counsel, both as to tbe propositions of law contended for in bis opening, and as to tbe facts which be expected to prove, were made in tbe utmost good faith. Tbe will offered for probate was made in favor of tbe relations of decedent’s husband, to tbe exclusion of her own nieces and nephews, and counsel for contestants referred to tbis fact, and claimed tbat it was an unnatural will, and tbat in such cases tbe law will draw an inference tbat tbe will was procured by fraud; and also argued, in tbe same connection, tbat tbe burden of proof in such cases would rest upon tbe proponents. Tbe question of undue influence was afterwards eliminated from tbe case by tbe trial judge. It is unnecessary to determine whether tbe contestants’ position on tbe law of tbe case was wholly sound or not, as counsel bad tbe right, under tbe rulings of tbe Court, to state in good faith bis claims as to tbe law, in so far as it was necessary to give tbe jury an understanding of bis theory. As was said in Fosdick v. Van Arsdale, 74 Mich, at page 305:
“Counsel have tbe right, both in opening the case to tbe jury, before tbe testimony to support their case is offered, and when closing tbe argument, after tbe testimony is in, to state to tbe jury that they claim tbe law to be thus and so.”
This ruling, it is believed, is in accord witb the general understanding of tbe profession, and certainly is no departure from tbe practice which has obtained at tbe circuit from tbe time of tbe adoption of tbe present rules of court. Tbis right would be nothing more than a mere shadow, or, worse, a dangerous snare, if, after counsel has taken his position in good faith, he is to be made the guarantor of his views of the law on every question presented, and, if in the end it should be found that he is mistaken on some point of minor importance, the judgment in his' favor is to be vacated for this reason. It must be an exceedingly plain case of an abuse of privilege which will justify the setting aside of the verdict on the ground of improper opening either in statement of the law or fact. Nothing short of bad faith or a gross misconception of what is admissible, resulting in bringing to the attention of the jury matters wholly irrelevant, and of a nature calculated to create so profound an impression that the charge of the court cannot eliminate the prejudice produced, will justify an appellate court in vacating a judgment on such grounds; and, in determining whether such an error has been committed, it is believed to be entirely safe to credit the jury with at least average intelligence. People v. Gosch, 82 Mich. 22; Porter v. Throop, 47 Id. 313; Campbell v. Kalamazoo, 80 Id. 655. Tested by this rule, we do not think any error was committed by counsel in his opening, either in stating the law or facts which he expected to prove. The statement of the facts expected to. be proved by Dr. Gallagher, quoted in the former opinion, was termed “extravagant.” A careful examination of the testimony actually introduced convinces us that the contestants made the proposition in good faith, and, although the proof of what was said was not as full as the opening statement, yet the substance of what was stated, namely, that Mrs. King mistook pills for flies, and mistook a fly for the pill, was testified to by the witness.
2. In the former opinion certain testimony was criticised as not in itself tending to show want of testamentary capacity. While this is true of the testimony quoted, yet a more full argument and citation of authorities convinces us that it was competent to show by witnesses that decedent was erratic, eccentric, rambling and disconnected in her conversation, flighty in her notions, unsettled; that her manner was excitable; that she could not comprehend connected conversation; that she ran about the house, screaming, with her dress open in the front, etc. These circumstances, of themselves, might not have been sufficient to show testamentary incapacity, but they were competent to be considered with the other evidences offered in the case for that purpose. It cannot be contended in this case that there was not enough testimony to justify submitting to the jury the question of mental incapacity, and, where this is the case, circumstances are often admissible which may co-exist with a perfectly sound mind. It seldom occurs that any one circumstance or act of a party will, of itself, show insanity. On the contrary, the judgment of his acquaintances, as well as of medical experts, must be and is made up from circumstances and acts trivial in themselves, but which, when considered together, carry conviction of mental unsoundness. Eeference is made to the case of Fraser v. Jennison, 42 Mich. 206, and language may be found in the opinion of the Court in that case which apparently gives some support to the contention of proponents. But we think this Court has never evinced the purpose of creating one rule of evidence which shall apply in will cases, but which is not to be adopted in any other. It is much better than that any such incongruity should become ingrafted in our law that it be left to the trial judge to guard carefully the rights of legatees by full and adequate instructions upon the degree of mental competency requisite to make a valid will, accompanied by any necessary caution against giving undue weight to circumstances which, while more consistent with insanity than sanity, yet may co-exist with either condition of mind. If it be the rule, as this Court has repeatedly held, that inferences from proven facts are to be drawn by the jury, and not by the court, it follows that in making proof of mental incompetency any fact which is more consistent with that theory than with the theory of mental soundness must be admissible, and the duty of drawing an inference therefrom is one which an appellate court should not undertake, but which rests with the jury impaneled in the trial court. As was said in Perrott v. Shearer, 17 Mich. 54:
“ When evidence is submitted to a jury, as bearing upon a certain point,- it is for them and not for the court to determine whether it tends to establish that point or not. Whether it does so, in their opinion, may depend, not alone upon that particular item of evidence, but upon that evidence considered in its relation to other evidence.”
In Wessels v. Beeman, 87 Mich. 489, it was said:
“We have frequently held that the tendency of the testimony to prove a certain fact is exclusively for the jury, and it is error for the circuit judge to add the weight of his opinion as to what it tends to prove, when there is a dispute in the testimony upon a point.”
In Blackwood v. Brown, 32 Mich, at page 107, it was said:
“What certain statements tend to prove, or the weight to be given them, are proper questions for the jury, and the court cannot instruct them as to the weight or importance to attach to any particular part of the testimony. To do so would be but usurping the proper province of the jury.” See, also, Hayes v. Homer, 36 Mich. 374.
As was stated in the former opinion, several witnesses were permitted to express an opinion as to the mental capacity of Mrs. King to make the will in question. It was strenuously insisted upon the argument for a rehearing that the witnesses in question showed their competency to speak upon the question, and that the weight to be given to their testimony was for the jury. The language of the Court in the former opinion upon this subject was too broad in excluding the testimony of the witnesses Austin, Hanley, French., and Weitz. Their testimony, as has been stated, was competent to be judged by the jury, and, upon fuller consideration, we are not inclined to hold that, as matter of law, it was not competent to take their opinion, although their opportunities for judging as to her capacity were certainly not such as-to entitle their testimony to any great weight. But we are all of the opinion that the testimony of the witness John Scott did not show that he had such an opportunity of judging of Mrs. King’s mental capacity as entitled his opinion to be received as evidence.
It is contended on behalf of the contestants that the jury are to be made the judges in all cases of, whether the acquaintance of the witnesses with the party whose sanity is in question was such as to entitle their opinion to weight. In any case where they have shown sufficient acquaintance with the party as to render their opinion of any value whatever, this is undoubtedly true, and it can be said on behalf of such a rule as is contended for that it is one more easy of application to particular cases than that which we believe to be the more correct rule; which is that in any given case the trial judge should, as a preliminary question, determine whether there is any basis shown by the testimony of the witness for an opinion. In Beaubien v. Cicotte, 12 Mich, at pages 502, 503, it was said:
“The general doctrine is that all witnesses speaking from observation must, as far as possible, state such facts as they can give as the basis of their opinion. This rule does not require them to describe what is not susceptible of description, nor to narrate facts enough to enable a jury to form an opinion from those alone. This would be impossiblé; and, if it could be done, there would be no occasion for any opinion from the witnesses. * * * But, if witnesses were not compellable to state such facts as are tangible, there would be no means of testing their truthfulness. When they - state visible and intelligible appearances and acts, others who had the same means of observation may contradict them, or show significant and explanatory facts in addition; and if their story is fabricated, or if they describe facts having a medical explanation, medical experts may detect falsehood in inconsistent symptoms, or determine how far the symptoms truly given have a scientific bearing. But, from the nature of things, no rule can be laid down declaring zvhat amount of acquaintance or what opportunities are necessary to enable an observer to be a witness. There are cases of insanity open to the slightest scrutiny, while others defy the keenest search. But no testimony can be of any real value unless it appears the witness had adequate means and opportunities for forming some conclusion.”
In White v. Bailey, 10 Mich, at page 163, Mr. Justice Campbell said:
“Until the facts were shown, it could not be determined whether the witness was competent to form any opinion whatever, or Avhether there was room for any inferences not within the unaided good sense of the jury. Had the witness been fully examined concerning his means of observation, and also concerning the facts he actually observed, it is possible that the question put, although somewhat too broad in form, might not have been legally objectionable; and it does not seem to have been objected to on this account. But, standing alone, it was certainly immaterial what opinion any person had formed upon the condition of the deceased, because there was no legal basis shown on which it could be rested.”
This ruling, of necessity, implies that, before the witness is permitted to express an opinion, he must testify to something in the appearance of the party which is sufficient at least to justify the inference of incompetency. It may be a question of some difficulty to determine in all cases whether a witness has shown himself competent, nor do we intimate that he may not be able to state to the jury his opinion, after showing that there were acts and appearances of the party which he is unable to describe to the jury, but which left an impression upon his mind; but in the absence of this, and where the testimony of the witness only goes the length of showing acts which are entirely consistent with sanity, and which have not the slightest tendency to show insanity, it would be a dangerous rule which would permit his opinion to be received.
3. It was stated in the former opinion that the testimony relating to the insanity of Mrs. Kings’ sister and niece ought not to have been received. Upon fuller argument, and a careful examination of the former rulings of this Court, we are satisfied that the case of People v. Garbutt, infra, has settled this question, and therefore hold that this testimony was admissible as tending to show an hereditary taint of insanity in deceased, and that its weight was for the jury. People v. Garbutt, 17 Mich. 9. See, also, State v. Simms, 68 Mo. 305; Baxter v. Abbott, 7 Gray, 71.
4. We adhere to the view expressed in the former opinion that the question to Dr. Draper was incompetent. This question was:
“ Assuming that Exhibit B, hereto annexed, is a true record as far as it goes, what, in your opinion, must have been the condition of «Abigail Williams, the patient, from the time of her admission to her death?”
The record, which is set out in the former opinion (88 Mich. 584), speaks for itself. If inferences are to be drawn from it, they are to be drawn by the jury. The witness, in answer to the question, testified to certain conclusions based upon the assumed fact that the existence of any pronounced delusions or paroxysms of excitement would have been noted in the record. It was specially objected that the proper foundation had not been laid for this question. This objection was well taken. It did not appear that the witness had any knowledge of the methods employed of keeping these records at the time Abigail Williams was an inmate of the asylum.
5. As the case must go back for a new trial, it is hardly necessary to consider at any great length the competency of the hypothetical questions referred to in the former opinion. It is quite evident, however, that the witness had in mind, in giving his' answer to the second question, elements which were embodied in the first. We are satisfied that the criticisms made of these questions in the former opinion were somewhat too stringent, and that it is unsafe to lay down any rule which excludes any portion of the actual history of the case of which evidence has been given as incompetent, for the reason that these evidences, by themselves, have no tendency to support the claim of insanity. A cross-examination, by sifting out-such facts, will elicit the true grounds of the expert's belief, and enable the jury to judge of the reasonableness of the conclusions. It also follows from this view that it was competent to call the attention of the witness to such acts as were claimed by the proponents to show sanity,, and to take the opinion of the witness as to whether the-existence of these facts, together with those claimed to have been proven by the contestants, was inconsistent with the claim of insanity of the testatrix.
6. It appears by an examination of the record that the-Mix letters, offered in evidence, and which were excluded, were not written by the witness under examination. The rnlirig of the circuit judge excluding them was therefore correct.
7. We still adhere to the view that the cross-examination of Mrs. Mix was too much restricted, and that the questions put to her should have been permitted. As was said in the former opinion, the testimony of this witness was such as to justify a very broad latitude of cross-examination, and the question, namely, whether a banquet was given by a elub to which her son belonged, and at which her husband made a speech, and whether Mrs. King-attended the banquet, was certainly entirely proper. It was an important fact, if true, that Mrs. King was able to attend .and participate in the banquet.
8. In the former opinion it was stated that the burden of proof was upon the contestants both upon the question of mental capacity and undue influence. This is undoubtedly true as to the latter. This statement was not ■essential to the determination of the case, and was not made upon the full examination of the subject that would ■doubtless have been given it had it been deemed important to the decision of the case. Undoubtedly, the statement is supported by many authorities, blit it is not in accordance with the rule in this State, and, in order that the profession may not be misled by this statement, we take th§ earliest occasion to correct it. It was held in Aikin v. Weekerly, 19 Mich. 482, upon a review of the earlier authorities of this State, that the burden of proof upon the question of mental capacity rested with the proponent throughout the case. This rule was followed in McGinnis v. Kempsey, 27 Mich. 363, 373, and has become so firmly established as the law of this State that we do not feel justified in overthrowing it. See, also, Beaubien v. Cicotte, 8 Mich. 9; Taff v. Hosmer, 14 Id. 309.
The order reversing the judgment should stand, but it will be modified in so far as it relates to the costs of the •court below. Judgment will be entered reversing the judgment below, with costs of this Court, the costs of the •court below to abide the event of a new trial. No costs will be awarded to either party on this rehearing.
McGrath and Long, JJ., concurred with Montgomery, J. | [
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] |
Grant, J.
Plaintiff brought this suit to recover damages for an injury to himself, claimed to have been caused by the negligence of the defendant. At the close of the plaintiff’s testimony, the court directed a verdict for the defendant, upon the ground that the plaintiff had not. made out a cause of action.
Plaintiff was foreman of section 9 of the defendant’s road, and at the time of the accident had been so employed ■ for 13 years. He continued in its employment in the same capacity for three years afterwards. It was his duty, in connection with other trackmen who were under his control, to go over the section in the morning, and inspect it. For this purpose the ordinary hand-car was furnished by the defendant. When going through cuts and similar places it is the custom for part of the workmen on the hand-car to face one way„ and part the other. This is to. enable the men to watch for trains in each direction, and to stop in time to remove the hand-car, and avoid danger. This course is prompted by common prudence. Time cards of regular trains were furnished these section men, with rules printed thereon for their guidance. One of these rules reads as follows:
“No notice whatever will in any case be given of the passage of extra trains, and trackmen' will govern themselves accordingly.”
This rule had been in force during the entire period of plaintiff’s employment, and he was perfectly familiar with it.
The cut near which the accident happened was of the-average depth of 16 feet, and ran in a curve somewhat in the shape of the letter “S,” with a down grade to the east. Plaintiff started out about 7 o’clock a. m., alone, to make the required inspection. He set the men who were under him at work in the yard at Brighton. The only reason given for going alone was, “We were short of help.” No. rule of the company is shown requiring him to go alone, and no superior officer directed him to do so. After setting his men to work, he went to the baggage-room, and took a rail road tricycle, which was the private property of the local agent, Mr. Surtes, who had told him that he might take it when he wanted it. Mr. Surtes was absent. Plaintiff asked the baggage man if he knew of any extra trains on the road, to which he replied that he did not know; he was not there that night. Plaintiff went west upon the tricycle, and when returning met the passenger train going west. After its passage, he replaced the tricycle, and proceeded east. From this place to the place of the accident there are 25 telegraph poles. He stopped at the thirteenth pole, to listen for a train, but heard none. He stopped and listened again at the eighteenth pole, but heard no train. He then proceeded without stopping, and was overtaken by an extra passenger train near the twenty-fifth pole, and was thrown from the track. He did not hear or see the train till it was right on him. He was running fast with his tricycle, and had emerged from the cut when overtaken; but how far he was from the cut does not appear. Had he looked back, he could have .seen the cars approaching at least 30, and probably 40, rods. The tricycle weighed 150 pounds, and he could stop it within 50 feet, and could easily lift it from the track. The negligence declared and relied on is the failure to notify plaintiff •of the approach of irregular or extra trains, so that such employes might be enabled to learn of their extra hazard and peril.
The learned circuit judge was correct in directing a verr diet for the defendant, for the following reasons:
1. Plaintiff did not use the means provided for him by the defendant for the purpose of making the inspection. He was not required to go alone. No necessity existed for his going alone at this particular time. He chose to take a conveyance which could carry but one, instead of taking the one provided by the company, with which he could have made the inspection in the usual manner, and with safety.
2. He was guilty of contributory negligence. He knew tbe danger he was in, and the risk he had to run. He knew that wild trains were apt to come at any time. He should have been on the lookout, and kept his tricycle under control. He rode a considerable distance through the cut without looking back, or making any attempt to do so. He was guilty of negligence also in not taking the hand-car and another man with him, so'that he might, adopt the usual method of protection.
3. He assumed the risks of the business, of which the passage of extra trains without blowing a whistle or ringing a bell was one. He knew the rules of the company, and agreed to them, and worked under them for 13 years without protest. They were not of such a character as to be void because against public policy. The fact that he had worked under them for 13 years without accident shows that they were not of an extremely dangerous character, and that, with proper precautions on the part of employes, danger could be averted. Plaintiff knew that extra trains were liable to come at any time. He was bound to exercise the same care that he would have done if he had been notified at the station that an extra train was on the road.
Judgment affirmed.
The other Justices concurred. | [
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] |
Long, J.
The defendants, who are, respectively, superin tendent, captain, and lieutenant of the police force in the city of Grand Rapids, were prosecuted by a writ of capias ad respondendum, issued out of the circuit court for the county of Kent. Defendants gave bail to the sheriff, and in due time bail to the action, and before the time limited for filing their plea they interposed a special motion to quash the writ, because the defendants, in the commission of the alleged grievances, were acting as city officers of the city of Grand Rapids, and, under the act creating the superior court of that city, exclusive jurisdiction of all actions of a civil nature which may be brought by or against said city, or by or against any of its officers, is vested in said superior court. The circuit court, upon the hearing of this motion, granted it, and dismissed the case. Plaintiff brings error.
The affidavit upon which the writ was issued alleges substantially that the plaintiff is the manager of an opera house in the city of Grand Rapids; that the defendants are, respectively, superintendent, captain, and lieutenant of the police force of that city, and were acting as such when it came to their attention that the plaintiff had advertised to the public of that city and county that on Sunday evening, September 20, 1891, he would present and produce on the stage of said opera house a moral and instructive play, by a company controlling the same, called the “Rocky Mountain Waif,” the proceeds to be used largely for charitable purposes; that, shortly after the play commenced, the defendants, as such officers, entered upon the stage where the plaintiff was managing the business, and then and there made an assault upon him, and beat, bruised, struck, wounded, maltreated, and arrested him, and against his will put a pair of handcuffs upon his wrists, in the presence of the people in attendance there, and pushed and dragged him through the opera house to the public street, and through such public street to the police headquarters, and detained and imprisoned 4dm there for the space of one hour, when the plaintiff gave security for his appearance at the police court of said city at 9 o'clock on the next morning; that he had not been guilty of nor committed any breach of the peace, felony, or any other offense, and was arrested solely for the reason that he produced such play on Sunday evening; that on Monday morning he appeared before such police court in the presence of the judge, and while such court was in session demanded to be shown' the complaint and warrant against him, but no complaint, up to that time, had been made, and no warrant issued, and thereupon he demanded his discharge, and was discharged and released by said court without day; that no complaint has ever since been made or warrant issued by any court of competent jurisdiction for the arrest or prosecution of him for said alleged unlawful act; that he was a law-abiding citizen of good fame and character in that community where he lived, and that by reason of the assault aforesaid, and said arrest, and in being handcuffed in the presence of the people there assembled, and dragged through the streets cf said city, without due process of law, he was rendered sick, sore, lame, and disordered in body, and suffered great mental anguish, and was greatly scandalized, injured, and prejudiced in his good name and fame, and was disabled from attending to his affairs and business for a long space of time, to wit, 48 hours, and was put to a large expense, etc.
The sole question in this case is whether the superior court act of the city of Grand Eapids deprived the circuit court of Kent county of jurisdiction of the cause of action stated in the declaration.
Section 13 of 'that act, as amended in 1881 (Laws of 1881, p. 98), provides as follows:
“ Said superior court shall have exclusive jurisdiction of all actions of a civil nature, at law or in equity, which may be brought by or against the board of education of such city, or by or against the said city or any of its officers,” etc. How. Stat. § 6576.
The contention of plaintiff’s counsel is that, although the defendants were, respectively, superintendent, captain, and lieutenant of the police force, and were acting as such at the time of this arrest, as set forth in the affidavit for the writ, yet they Avere merely an additional force of constables and watchmen appointed for certain limited purposes, possessing’ original constabulary powers, and as such were officers of the State, and not properly city officers, within the meaning of the superior court act. It is contended, further, that by the “ city officers,” as used in this statute, is meant only such officers as are provided for by the charter for general municipal purposes.
Section 1 of title 2 of the charter of the city (Act No. 436, Local Acts of 1887) provides:
“ The officers of said city shall be one mayor, one treasurer, one comptroller, one clerk, one marshal, one director of the poor, a board of revieAV and equalization, to consist of three members, two aldermen in each ward of said city, one supervisor in each ward, and one constable in each ward of said city, all of whom shall be elected. * * * Also one city physician, and so many common criers, keepers of almshouses, workhouse, and penitentiary, pound-masters, inspectors of firewood, inspectors of higliAvays, weighmasters, and auctioneers as the common council shall from time to time direct; all to be appointed as hereinafter provided.”
Section 4 provides for a city attorney and an assistant in addition to the above, but in no other place in the charter are police officers named or designated as such officers.
By an act approved May 24, 1881, creating the board of police and fire commissioners of the city, this board is vested with sole power to elect or appoint and remove police constables and the managing officers of the police force. This is provided for by section 8 of the act. By section 9 of the act it is provided that these officers “ shall have the same power as constables now have by law, except as to the service and return of civil process and proceedings in civil cases, and shall be subject to the same liability, except as otherwise provided by law.”
We are of the opinion that plaintiff's counsel is correct in his contention. The statute creating the superior court must be construed with reference to the provisions of the charter of the city of Grand Eapids and the police force act; and from an examination of the three acts it appears that policemen of the city and the police officers are not named in the charter, and do not come within the designation of the superior court act as city officers. They are not subject to removal under the provisions of the law for the removal of city officers. They are not elected or appointed under the provisions of the charter, but by authority vested in the board of police of the city. Attorney General v. Cain, 84 Mich. 223.
But this is not all. The complaint here made is that the three defendants jointly committed an aggravated assault and battery upon the person of the plaintiff, arrested and handcuffed him, and dragged him through the streets of the city, within the gaze of the people, and without any previous warrant authorizing such arrest, although at the time he was not committing any breach of the peace, and had not committed any felony or other offense, and had not been suspected of the commission of any such offense; and that, after thus humiliating him, he was discharged out of custody without any complaint being made against him for any offense. It is very doubtful whether, under the circumstances here stated, the circuit court would have been ousted of jurisdiction had the offense been committed by a constable or other officer enumerated in the charter as an officer of said city; but, be that as it may, these officers were not enumerated in the charter as city officers, and the circuit court was in error in holding that the jurisdiction to try the cause was vested exclusively in the superior court.
The order quashing the proceedings, and the judgment-in favor of the defendants, must be vacated, with costó, and a new trial ordered.
The other Justices concurred.
Act No. 889, Local Acts of 1881. | [
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'Montgomery, J.
The respondent was prosecuted under section 2029 of Howell’s Statutes, the information charging that the said respondent did, for hire, gain, and reward, keep and maintain a gaming room, contrary to the provisions of said section. The section reads:
“Any person who shall, for hire, gain, or reward, keep or maintain a gaming room, or a gaming table, or any game of skill or chance, or partly of skill and partly of chance, * * * shall be deemed guilty of a misdemeanor.”
The evidence on the part of the prosecution showed that the respondent occupied and maintained a room, kept a telegraph operator therein, and, for a commission paid by any person, telegraphed to Guttenberg, N. J., the amount of money the person desired to bet, and the name of the horse chosen by him in the race at Guttenberg. The person desiring to have his money forwarded to Guttenberg first made but an order as follows:
“Please execute for me on the race track at the races to be held this day on the grounds of the -, in the oounty of--, state of -, or at any other place or time, the sum of - dollars, -’and do not, under any circumstances, accept odds on this race at the said race track at a less price than-. I desire to be positively and distinctly understood, and for this reason only do place in your charge my money, for you to place my said money for me only on said horse above mentioned, and at no other place than on the grounds of said--, during the progress of the races this day; and for this purpose I make you my common carrier. For the expenses incurred by you in so placing my money — my special money —on the grounds of the said -, I agree to pay you the sum of five cents.”
A blackboard is kept in the room, upon which is recorded at brief intervals the position of the horses in the race. The man at the blackboard, who does the marking, is called the “marker,” and the man at the ticket office is called the “ticket agent.” There are also employed the telegraph operator and a “ helper.”
The trial judge instructed the jury, basing his instructions upon the testimony given by one Crandall, as follows:
“If you believe beyond any reasonable doubt that on the 5th of January a horse race was about- to take place at Guttenberg, New Jersey, and that at the room in question a person in the defendant’s employ sold tickets for that purpose, sold to Mr. Crandall a ticket, for which $1.05 was paid, then and there gave Mr. Crandall the names of the horses that were to participate in the race then about to take place at Guttenberg, and he was directed to place the money of Mr. Crandall ($1) on the horse named by Mr. Crandall, and Mr. Crandall then paid to the person so selling him a ticket in this room five cents commission, and the money was so placed as agreed, and the result of the race so announced as won by the horse on which Mr. Crandall placed his money, and you believe the money of Mr. Crandall was so placed- as a stake or wager, then that room was a gaming room, and, if kept for that purpose, was evidently within the meaning of the statute.”
The statute in question was exhaustively considered in People v. Weithoff, 51 Mich. 203. It was there held that betting on th.e result of a horse race is gaming; that a, room used fo£ the purpose of facilitating the betting on horse races is a gaming room, within the meaning of this statute; and that it is not essential to the offense either that those who bet or wager should be engaged in the game, or that the game upon which the bet is laid be conducted within the room.
It is urged for the defense here that no actual betting occurred on the premises; that the defendant had no greater responsibility for the bets than the servant of a telegraph company, who sends dispatches directing that money be wagered; and that, as no bet or wager is actually made in the room,, it is not a gaming room. We think this contention ignores, the real substance of the transaction. The money is placed in the hands of the defendant by one party to the wager, and, if he wins, he receives the money won in this room; if he loses it, knowledge of the loss is brought to him in this room. That it requires the intervention of another agency does not relieve the respondent. It would be a reproach' to the law if it were possible that responsibility could be avoided by any such subterfuge as is apjoarent in the very scheme adopted by the respondent in this case. That the purpose in fitting up this room was to. furnish the information which, enables persons to exercise their judgment in laying wagers; that money is paid into, the hands of defendant irrevocably, to wager it; and that, the gains of the' wager are paid and the losses made known to those making bets within the room,. — are beyond question. We think this constitutes the room a gaming room, within the meaning of this statute.
Respondent’s counsel rely upon the case of People v. Wynn, 12 N. Y. Supp. 379, as sustaining their contention. The statute under which the conviction was had in that, case provides that—
“A person who keeps any room * * * with books, apparatus, or paraphernalia for the purpose of recording or registering bets or wagers or of selling pools, and any person who records or registers bets or wagers or sells pools, upon the result of any trial or contest of skill, speed, or power of endurance of man or beast, * * * is punishable by imprisonment for one year, or by fine not exceeding two thousand dollars, or both."
The third count of the indictment contained the charge of keeping, exhibiting, and employing devices and apparatus for the purpose of recording and registering bets or wagers. A similar order was executed by the prosecuting witness to the one above quoted in the present case. It was held that the evidence was insufficient to justify a conviction under the third count of the indictment. The court said:
“There was not a particle of evidence which can be possibly twisted or tortured into an offense therein described. The only evidence is that there was a blackboard on the wall. What that blackboard was ever used for is not at all explained by the evidence, and there is no presumption of guilt. It is true that the witness stated that the room was not fitted up as a school-room. But blackboards may be innocently used for many other purposes and in many other places than school-houses. There was not the slightest particle of evidence which would justify the submission of any question under the third count, and it was clearly error in the court to deny the request of the defendant as to this count of the indictment."
It will be seen that the question of whether the room in question was a gaming room was not involved, and the distinction between the two statutes is apparent. The case does not sustain the defendant’s contention.
The conviction will be affirmed.
The other Justices concurred. | [
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McGrath, J.
Complainant and defendant Charles A. Lorman had been in the ice business in the city of Detroit, as partners, since 1869, each having an equal interest in the business. In January, 1874, the joint property was inventoried at $33,500. Miner put in the further sum of $1,500, and the Belle Isle Ice Company was organized, with a capital stock of $35,000, divided into 1,000 shares of $35 each. Lorman and Miner each held 435 shares, I. J. Carpenter held 30 shares, and Lorissa Carpenter 100 shares. In 1878 the capital stock was increased to $50,000, or 3,000 shares at $35 each. At that time the Belle Isle Ice Company absorbed the Wolverine Ice Company, and Robert Wench, Isaac Wench, Frank Hoadly, and H. C. Kibbee became stockholders. In 1881 Lorissa Carpenter, R. W. Wench, Isaac Wench, and Frank Hoadly filed a bill against Miner and Lorman to have certain lands held by defendants decreed to belong to the corporation, to obtain an account of the rents and profits, to compel the payment over to the corporation of certain moneys which had been expended upon said lands, to compel the surrender of certain stock illegally issued to defendants, and the payment over of all moneys taken by defendants for their private use. The stock held by the Wenches and Hoadly was purchased by Lorman, and the suit was discontinued.
In the spring of 1882, Miner, who was then president of the company, complained of the loose manner in which Lorman, who was manager, was managing the affairs of the company, particularly respecting the handling of the ice tickets. It seems that tickets were sold by the company to customers for cash or due-bills. These tickets were exchanged with the drivers for ice. The drivers upon each trip would turn in what cash and tickets were received, and an account with each driver was kept upon slips. He was charged with the weight of his load of ice, and credited with the cash and tickets. The tickets were then placed in a drawer, which was kept for that purpose. The complaint was that Lorman would in the morning fill his pockets with these tickets, and dispose of them through the day for cash and due-bills, turn in certain cash at night, and keep the due-bills, in order, as he claims, to make further entries upon them. Miner insisted that the bookkeeper should keep an account of the tickets taken out and of the cash returned by Lorman, and of the due-bills. Lorman looked after the sales and distribution of the ice, and Miner looked to the filling of the ice-houses, and the shipment of the ice from the various ice-houses to the points where loaded into wagons for distribution; and each received a salary of $1,200 per annum. Bitterness grew out cf Miner’s complaint, and at Lorman’s suggestion, in April, 1882, amended articles of association were filed, dividing the 2,000 shares as follows: Lorman 1,006, Miner 694, Lorissa. Carpenter 259, W. K. Muir 4, G. H. Lothrop 10, H. L. Kanter 10, S. L. Miner .5, W. Sanderson 4, W. F. Linn 4, and George H. Prentis 4, shares. Linn was Lorman’s nephew,- and was but nominally a stockholder, holding his stock in trust for Lorman; and the evidence tends to show that Muir and Sanderson also held their stock for Lorman.
At the next stockholders’ meeting, held April 3, 1882, Lorman, Miner, and Linn were elected directors. At the directors’ meeting, held April 20, it was proposed to make Lorman president and superintendent at a salary of $4,000. Miner objected, moved to adjourn, and, upon the failure-of his motion, he left the meeting. Afterwards, Linn and Lorman only being present, Linn moved that Lorman- be elected- president at a salary of $1,000 per year as president,, and $3,000 as manager. • Lorman seconded the motion, and Lorman and Linn voted “Aye.” Sanderson was elected secretary at a salary of $1,000. -No treasurer was elected, but Lorman has ever since acted as president, manager, and treasurer. At the directors’ meeting held April 5, 1883, it was-moved by Sanderson, and seconded by Muir, that Lorman be appointed general manager and superintendent at a salary of $4,000, “all voting ‘Aye.’” At the meeting held May 28, 1884, Muir moved that Lorman be general manager at a salary of $4,000; seconded by Sanderson;- and Muir, Lorman, and Sanderson voted “Aye.” At the meeting held April ’ 26, 1885, Muir moved that Lorman be general manager at a salary of $4,000; seconded by Sander-son; and Muir, Sanderson, and Lorman voted “Aye.” In May, 1886, Muir moved that Lorman be general manager at a salary of $4,000; seconded by Sanderson; and carried. In June, 1888, Sanderson had died, and one Gray, to whom Lorman had assigned some stock, and who was a nominal-owner holding for Lorman, was elected director. Muir moved, Gray seconded, and Lorman was again appointed at a salary of $4,000. Miner was discharged from the employ of the company in May, 1882. The balance sheet for the year ending March 1, 1883, showed a net gain of over $9,000. For the next year, the balance sheet showed a net loss of $3,460. For the next year, a net loss of $2,878. For the next year, ending March 1, 1886, the balance sheet showed a net gain of $2,193, for the next year a net gain of $8,672, and for the next year a net gain ■of $1,712. No dividends have been declared since 1882. The salary account for the year ending March 1, 1883, was $6,287, and for each of the five years following it was $5,200.
When the company was formed, Lorman and Miner ■owned three parcels of real estate, upon which the ice-houses were located. The ice-houses were turned in to the company, but the title to the real estate was retained by Lorman and Miner, who were joint owners, ■and leased to the company. These three parcels may be designated as the “ Dock Property,” the “ Steam-Power Property,” and the “Creek Property.” The company had leases of these parcels, — of the steam-power property for five years from January 1, 1881, at $1,000 per year, and of the creek property for the same term at $300 per year. The leases were renewable at the option of the company, and, in case the parties failed to agree as to rental value for the new term, two arbitrators were to be appointed to fix the rental. In May, 1883, the directors passed a resolution directing the purchase of Lorman',s interest in these parcels of property, and Lorman conveyed his half interest to the company. The price paid for the dock property was $5,000, subject to half of a mortgage of $8,000; for the creek property $3,000, subject to half of a mortgage of $3,000; and for the steam-power property $5,000, — “in all, $13,000; cash down, $1,000, and the balance of $12,000 in payments of $1,000 each, payable, one September 24, 1883, and one every four months thereafter, with interest at 7 per cent.”
In July, 1883, Miner filed bills for the partition of the dock property and the steam-power. property, and partition was had. The dock property was found to be incapable of subdivision. The directors ordered its purchase for the company, but Lorman, in December, 1884, bought it in at-$15,725, of which sum $8,326.66 was paid upon the mortgage, $3,653.42 was paid to the company, and was held by Lorman and credited upon the company’s $13,000 purchase, and $3,653.42 was paid to Miner. The steam-power property was divided, the east half being assigned to Miner, and the west half to the company, and the company paid Miner $400 for difference in value. The final decree was entered February 12, 1884. In March, 1884, the company reconveyed the steam-power property to Lorman for $5,000, the same price for which it had .been sold by Lorman to the company 10 months before. Whatever the purpose or occasion of these transfers from Lorman to the company and. from the company to Lorman, it appears that the company paid Lorman $10,000 for his half interest in the two paleéis, it paid the expenses of the litigation, it paid $400 to-Miner upon the partition of one parcel, and naturally the. property would not depreciate; yet Lorman has the property, and- the company has $8,653.42, or $1,746.58 less than it paid, and has paid its share of the expenses of the partition, and its solicitors. In 1887, the company reconveyed the interest in the creek property, which it had purchased from Lorman, back to him at $2,137.50, while it had paid $3,000 for the same property four years before, although it is insisted that the property had increased in value.
When the first five years under the leases of the creek and steam-power .properties had expired, the company elected to renew, but neither Miner and the company, nor the arbitrators who were called in, could agree as to the rental value; Miner claiming a rental of $300 for his share of the creek property, and $1,000. for his share of the steam-power property. The courts were appealed to, and the rental value of Miner’s' interest in the steam-power property was fixed by the court for five years at $500, and that of the creek property at $200. No steps were taken by arbitration or in court against Lorman, although he at that time owned one-half interest in the steam-power property. He was paid $850 per year for 1886 and 1887, and for 1888, 1889, and 1890 he received $1,000 per year, for his share of this property, and the only difference in value of the two shares, also fixed by the court, was $400, and this amount the company paid.
In September, 1885, Lorman bought what is known as the “Beniteau Property” for $3,500, and leased it to the company. For the year 1886 the company paid him $850 as rental for that property, for the year 1887 the sum of $800, and for 1888, 1889, and 1890 the sum of $1,000 per year; making a total in five years of $4,650 for property which he paid $3,500 for at the beginning of the term. The lease fixing the rental for the creek property at $500, and for the steam-power property at $1,000, was not made until May 21, 1888, although the rates above named had been paid in the interim.
After the discontinuance of the suit commenced by Lorissa Carpenter and others in 1882, Lorman agreed with Lorissa Carpenter to pay a certain percentage upon her stock annually, and from 1882 he has paid her, out of the company’s funds, at least the sum of $1,590.93. Mr. Kibbee, her father, says that the arrangement was made in: 1882, when they assumed the management. It was to pay interest on her stock, guarantee it, and whatever amount, was advanced should be deducted, whenever dividends were to be paid, from the amount received by her in advance.
“ Mr. Lorman said he would guarantee Mrs. Carpenter an advance to help her along until the matter was settled, and I agreed to it. I said I would not commence another suit if he would secure her. The last payment was made, of $50, on Saturday last. At the time, the checks were made payable to her order, and the time came when Mr. Lorman wanted a receipt made for a certain purpose, but he said it was not satisfactory, and she gave him one instead. I took that matter home. I have not got it here. The understanding between me and Lorman was that, so long as these payments were kept up, we would not make any trouble in the company.”
On cross-examination:
“Q. Mr. Lorman, in the payment of this money, and the agreement to pay this money, put it upon the ground that Mrs. Carpenter was a woman, and needy, and that amount of money could be advanced to her, and taken out when there was a dividend; was that not it?
“A. Yes, sir; it was a compromise to get her something.
“Q. He said she was needy, and acknowledged the fact, and you told him she was needy?
“A. Very likely.
“Q. And he acknowledged the fact?
“A. I do not remember that. I remember asking him to put this stipulation in writing, and he said it might affect him.
“Q. He would not put it in .writing?
“A. No, sir.
“Q. Eefused to put it in writing. But he did put it upon that ground, — that it could be paid in that way, and after, if there was a dividend, it could be deducted from the dividend? and that was the distinct understanding, too, —it should be taken out of any dividend?
“A. Yes, sir. I have embraced it in that little paper I gave you.”
On re-direct:
“Q. At the time this arrangement was made with Mr. Lorman, the old suit in which Lorissa Carpenter was interested had gone down, as you express it. Now, can you locate more definitely the time when the arrangement was made?
“A. Soon after, in the spring of 1882, when he first started the management of it in his own name.
“Q. At the time this agreement was made, were Mr. Lorman and Mr. Miner good friends, or broken with each other?
“A. They had broken with each other.
“Q. They had broken?
“A. Yes, sir. Mr. Lorman had got the business, all of the stock, substantially, except Mrs. Carpenter’s and mine.
“Q. On your cross-examination, Mr. Kibbee, I think you stated that you requested Mr. Lorman to put this agreement in writing. Did you make such a request of him?
“A. Frequently.
“Q. And what was his answer?
“A. That it might affect him in this suit with Miner; and I recollect a remark he made, that it would stultify him. I think that is about the substance. I said as long as he would help Mrs. Carpenter right along, I would not put any blocks in the way; that is the conversation as nearly as I can recollect it.”
In 1885 complainant filed a bill against the company, Lorman, Muir, Sanderson, and Linn making like charges, but the court below found that it was defective for want of parties, and it was dismissed. The present bill was afterwards filed.
Lothrop and Kanter appear to have transferred their stock to Miner, so that the stock was held, at the time of the commencement of this proceeding, 960 shares by Lorman, 4 by Muir, 4 by Linn, 50 by John S. Gray, and 4 by Prentis, making a total of 1,022 shares. John S. Gray, Muir, and Linn are but nominal holders, and all three are directors. Of the balance, Miner held 708, W. J. Gray 1, John H. Seitz 10, and Lorissa Carpenter and Kibbee 259 shares.
Lorman makes no attempt to explain the payment of the $1,590.93 to Mrs. Carpenter. He does not deny that he is president, manager, and treasurer, and that his associates on the board of directors have no personal interest in the company. He says that the members of the board do what he tells them to do. He insists that his salary is not large or unreasonable; that he is doing the work of both Miner and himself. There is no pretense that the business had increased in volume immediately after 1881, yet the salary-account is more than double that year what it was before-that, and Lorman is paying himself $1,600 more than was paid to both in 1881.
Miner testifies that since 1882 not over two or 'three annual meetings have been held, to his knowledge. That “about two years ago, I went down there myself, and two- or three more, and it was postponed; that is, Mr. Lor man-postponed it himself without calling the meeting to order at all; and then, at the time it'was postponed to, I went-' over, but there was no meeting, but I heard it said he had a meeting in some other place. I have had no notice of any meeting since." Another witness says that at onetime he held some stock, and tried to attend an annual meeting, but that the' meeting was held in some secret', place, and he was unable to attend. No explanation is attempted to bo made of this by the defendant Lorman. He practically admits the allegations as to the method of dealing with tickets, but insists that he has turned over to-the company all the proceeds, and that he was a check upon himself. The practical difficulty with his method is that, there is no way of determining whether he did or did not-turn over all the proceeds. The matter of accounting for these tickets was one of some importance to the company, and to the stockholders. The cash receipts from the sale-of tickets averaged $14,500 annually for the years 1882 to-1887, inclusive. There was nothing unreasonable in a demand made by the president upon the manager that some system should be adopted in a matter of that importance. Loose-methods of doing business are likely to provoke suspicion, are in themselves suggestive of dishonesty, and usually result, in difficulty. Complainant gives this as the origin of the difficulty, and Lorman does not deny it.
Respecting the transfers of property, Lorman claims that. 1882 had been a good year; that the directors thought, in view of the prospects, it would be well to own the property; that bad years followed, and the company was unable to keep up the stipulated payments; that the directors did order the purchase of the dock property at the partition sale, but it had no money with which to make the purchase; but that was as evident when it was ordered as it was when the property was bid in by Lorman. The net gain for the year 1882, which is said by Lorman to have been the good year, was $9,000, but the net gain for the year 1886, ascertained March 1, 1887, was $8,672; yet the creek property was deeded back to Lorman, after this result had been ascertained, at $2,137.50, just $862.50 less than the company had paid for it four years before.
He admits that he made $1,200 out of the company by transferring the steam-power property to the company, and its reconveyance, and $1,500 out of the conveyance and purchase of the dock property, in addition to the partition costs and expenses. He concedes that he sold the three parcels of property to the company for $13,000; that he received of this amount $2,000 in cash, and the further sum of $3,862.50 as proceeds of the sale of the dock property; that he allowed the company $5,000 for the steam-power property, when it was reconveyed to him, and $2,137.50 for the creek property. The company paid to Lorman in this transaction $2,000 in cash; it paid in the partition proceeding $400, besides the costs and expenses of that proceeding; and it held the title to one parcel from May, 1883, to March, 1884, and to the other from May, 1883, to early in 1887.
He- admits the rent charges, but claims that his share of these parcels of property was of greater value than Miner’s. The steam-power property had been rented to the company for $1,000 per annum. It was partitioned, and the court assigned to the company the west half, subject to the pay ment of $400 to Miner. In the adjustment of the rent,' in 1886, the arbitrator selected by Miner fixed the rental value of Miner’s share at $800; but Lorman insisted that-it was not worth that amount, and went into court, and the court decided that the rental value was $500. So that in proceedings to which Lorman was practically a party the court found not only the rental value, but the relative value of both parcels, and found Lorman’s share to be worth exactly $400 more than Miner’s; yet Lorman paid himself $4,700 for five years’ rental of his share, and Miner received $2,500, a difference of $2,200 in favor of Lorman. Respecting the creek property, in 1885 Miner offered to take $300 per year for his half, and the arbitrator selected by Miner, and the court, fixed the value of Miner’s undivided half at $200 per annum. Lorman then insisted that it was not worth but $125. The company had but just reconveyed this half interest to Lorman, and he received $250 per annum for 1887 and 1888, and $500 per year for the next two years. Can there be any possible ground for claiming that his undivided half was worth more than Miner’s?
He admits the purchase of the Beniteau property for $3,500, and that for five years thereafter he paid himself in rentals therefor, $4,650.
No one of Lorman’s associates on the board of directors for the six years preceding the filing of this bill is sworn, or offers any testimony to sustain any act of said board during that period. Lorman only appears. Gray, Muir, Linn, and Prentis severally answer, but each “neither admits nor denies ” the charge made in the bill, and neither alleges even good faith.
Under all the rules governing the relation of directors of a corporation to that corporation and its stockholders, and their conduct pending that relation, the simple statement of the facts of this case ought to decide it. As is said by Mr. Justice Miller, in Oil Co. v. Marbury, 91 U. S. 587:
“That a director oí a joint-stock corporation occupies one of those fiduciary relations where his dealings with the subject-matter of his trust or agency, and with the beneficiary or party whose interest is confided to his care, is viewed with jealousy by the courts, and may be set aside on slight grounds, is a doctrine founded on the soundest morality, and which has received the clearest recognition in this court and in others."
The authorities upon the question of the validity of contracts made by directors with the corporation are by no means harmonious. It is laid down in many of the textbooks that such contracts are voidable at the instance of the corporation. 1 Beach. Corp. §§ 241, 242; Mor. Corp. §§ 243-245; Tayl. Corp. §§ 629, 630; 2 Field, Briefs, § 193. Again, it has been held that a director may deal with the company in like manner as with an individual, if he deal honorably, and without endeavoring to influence or control it. 16 Amer. Law Rev. 917; Harts v. Brown, 77 Ill. 226; Rolling Stock Co. v. Railroad Co., 34 Ohio St. 450; Mayor v. Inman, 57 Ga. 370.
Our own Court, in People v. Township Board, 11 Mich. 222, and in Flint & P. M. Ry. Co. v. Dewey, 14 Id. 477, have held that such contracts were not only voidable, but absolutely void. In People v. Township Board, Manning, J., says:
“Actual injury is not the principle the law proceeds on in holding such transactions void. Fidelity in the agent is what is aimed at, and, as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal.”
Christiancy, J., in the same case, says:
“As individuals, in taking the contract, they must naturally (and while human nature remains unchanged, we may almost say, necessarily) seek to adopt the plan and to malie the terms most conducive to their own interests. The public were entitled to their best judgment, unbiased by their private interests, and by accepting the office they became bound to exercise such judgment, and to use their best exertions for the public good, regardless of their own. They had no right, while they continued in office, to place themselves in a position where their own interests would be hostile to those of the public. * * * And though these contractors may, as members of the board, have acted honestly, and solely with reference to the public interest, yet, if they have acted otherwise, they occupy a position which puts it in their power to conceal the evidence of the facts, and to defy detection. If, therefore, such contracts were to be held valid until shown to be fraudulent or corrupt, the result, as a general rule, would be that they must be enforced in spite of fraud or corruption.” • | [
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McGrath, J.
This is trover by mortgagor against mortgagee for the value of goods taken possession of and sold under the insecurity clause in the mortgage.
April 16, 1889, plaintiff bought of defendant a steam threshing rig, consisting of engine and separator, for $1,800. Four hundred dollars was paid down, and the balance, represented by six notes, two of which were payable October 1 and December 1, 1889, two October 1 and December 1, 1890, and two October 1 and December 1, 1891, was secured by a real-estate mortgage of $400, and a chattel mortgage upon the threshing rig. The first two notes, amounting to $508, were npt paid at maturity, but, after some negotiations, on January 14, 1890, plaintiff executed, a deed to defendant of the land covered by the real-estate mortgage. Defendant surrendered one of the'two matured notes, and upon the other made the following indorsement:
“It is hereby agreed that, if Andrew B. Woods pays to G-aar, Scott & Co., or its agent, within twenty days from date, $100.00, to be applied on its note against him dne next fall, December 1, 1890, this note shall be considered paid, and shall be returned to him.” • •
The $100 was paid within the time, and the second note was surrendered. On May 10 following defendant took possession of the engine and separator, advertised and sold them, itself bidding them in at $100, and subsequently selling them. There was nothing due upon the mortgage at the time defendant took possession, nor was it claimed that there was any change in the circumstances of the mortgagor, or that there had been any breach of any of the conditions of the mortgage. The mortgage contained the following clause:
“But in case default shall be made in the payment of any of said notes, or in the interest thereon, or any part thereof, at the times above limited for the payment of the same, or if the said party of the second part shall at any time deem itself insecure, * * * it shall and may be lawful for the said party of the second part, its successors or assigns, or its authorized agent, to enter upon the premises of said parties of the first part, * * * and talce possession thereof, and remove the same to any place within the State of Michigan, and to sell and dispose of the same for the best price or prices that can be obtained therefor, at private sale or at public vendue.”
The learned circuit judge instructed the jury that if they found that the defendant acted in good faith, and had good reason to deem itself insecure, plaintiff could not recover; that it was for them to say, under all of the circumstances, whether or not defendant did have good reason to think, and did think, that it was insecure at the time; that if, on the contrary, they should find that the defendant did not have reason to think, and did not think, that it was insecure, and that, after having got all that it could from the plaintiff, it fraudulently and arbitrarily, without good and sufficient cause, took advantage of the plaintiff’s necessities, seized the property, and sold it before the debt (to the payment of which it was pledged) •became due, that would be a conversion of the property, and the defendant would be liable for the value of the machine, less the amount owing by the plaintiff to the defendant at that time; that, if they found that defendant obtained this deed and money by falsely leading the plaintiff to believe that, by giving the deed and paying the $100, it would allow him to keep the possession of the machine during the season, that would be an evidence of bad faith on the part of the defendant at the time of the seizure and sale; that they were to consider the facts on which the defendant claimed it was acting in determining that it was insecure, and determine the good or bad faith of the defendant in seizing this property in May, 1890,—
“Whether such facts constituted .an honest reason for deeming itself insecure in fact; for I charge you that its action must have been based on an honest and Iona fide belief that it was insecure. You are not to question its judgment, however erroneous it may have been. If it was based on an honest belief, that is sufficient. * * * If you find that at the time he [the agent] had concluded and led the plaintiff to believe that he should not be disturbed in the possession of the property before a default in payment to become due, which could not occur, as I have already stated, until October 1, and if you find there was nothing which came to his knowledge after that time which he did not then know, to justify the seizure, the circumstances would tend to prove bad faith. If, on the contrary, he learned new facts after that time sufficient to justify the act of • seizure and sale, taken together with what he then knew, they would have a strong tendency to prove good faith and an honest conclusion that the defendant then deemed itself insecure, and lawfully exercised the right given in the mortgage to seize and sell the machine.”
These instructions were erroneous, in so far as they submitted to the jury the abstract question as to the sufficiency of the reason given by defendant for deeming itself insecure. It is not necessary that it appear that the mortgagee was in fact insecure. The mortgage vests in the mortgagee a certain discretion, of which the jury could not divest it, so long as that discretion was honestly exercised. While it is true that defendant could not act capriciously, and must have reasons for deeming itself insecure, yet, when the mortgagee acts in good faith, its right cannot rest solely upon the question of the sufficiency or insufficiency of the reason assigned. The real question for the jury, in cases where a reason is given, is the good faith of the mortgagee. A reason may not strike the jury as a good reason, yet the mortgagee may act in entire good faith, and in such case there can be no liability. If the mortgagee had reason to believe that it was insecure, and did so believe, acting in good faith, it was justified in taking possession, even though the reason may not be regarded by the jury as a sufficient one. The jury may take into consideration all the facts, circumstances, and conditions, together with the reasons given or the grounds assigned for the apprehension, in determining the question of good faith. These clauses are inserted with reference to possible changes in conditions or circumstances, or new developments affecting the mortgagee’s security. The right to take possession and at once proceed to sell plaintiff’s property was not a mere option, to be arbitrarily exercised, without reference to changed conditions or the conduct of the mortgagor. A vendor of personal property will not be allowed to sell his property, receive a large payment down, take a mortgage back, and thereafter capriciously deem himself insecure and take possession of the property. In the present case the amount due upon the mortgage in January had been paid, and plaintiff had advanced $100 upon the installment maturing in December following, and, unless after that time there were new developments or changed circumstances ■ which led defendant, acting in good faith, to believe that it was insecure, and it did so believe, then defendant was liable.
It is next contended that, by the terms of the mortgage, the right of possession was in the mortgagee; hence trover is not maintainable. The mortgage itself recognizes the possession of the mortgagor, and the provision giving the mortgagee the right to take possession in certain contingencies is inconsistent with the right of possession in the absence of these contingencies. Eggleston v. Munday, 4 Mich. 295, is grounded upon the theory, long since exploded, that a chattel mortgage passed the title. Cadwell v. Pray, 41 Mich. 307. The mortgagor, under this form of mortgage, is entitled to possession until condition is broken, subject to the proper exercise of the discretion given to the mortgagee.
Objection was made to testimony respecting the assurances given at the time of the adjustment in January, regarding the possession of the property, on the ground that the indorsement on the note contained the agreement, and that agreement could not be varied by parol. The agreement evidenced by the writing referred solely to the surrender of the note upon which it was indorsed. It was not pretended that the payment of the $100 was the sole consideration of the surrender of the note, or that the memorandum recited the entire transaction. No attempt was made to vary the expressed understanding that that note was not to be surrendered until the $100 was paid. The transaction of that date, which had already been gone into, was the execution of the deed of the farm by plaintiff, in consideration of which defendant was to surrender the two notes. The plaintiff claimed that, as an inducement to make the transfer and make the advance payment, he was assured that he would not be molested. The note was, in fact, paid by the transfer, and was held simply to insure the payment of the $100. There was no error in the admission of the testimony.
The value of the engine and separator at the time of the seizure was, of course, a question in controversy. Plaintiff called as a witness defendant’s agent, who testified that he had sold the machinery to plaintiff, and bid it in for defendant after its seizure, and afterwards sold it. He was allowed to testify, under objection, as to the price for which he sold it, viz., $1,400. It had already appeared that this was a time sale, upon notes. The testimony was competent, as bearing upon the value.
The court instructed the jury that the plaintiff would be entitled to the value of the machinery, and the value of the right of possession until October 1,1890, when the first of the reserved payments would become due, less the amount due on the mortgage. In this we think the court erred. The measure of damages in trover is the value of the property at the time of conversion, with the interest, unless special damages are alleged and proven. Special damages must he such as are the immediate consequences of the deprivation. Here the property was idle at the time of the taking. Months elapsed before any contemplated use could be made of it, — ample time within which the property could have been replaced.
For the errors named the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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PER CURIAM.
In this no-fault insurance action, Farmers Insurance Exchange appeals as of right the trial court’s order granting Titan Insurance Company’s motion for summary disposition and requiring Farmers Insurance Exchange to reimburse Titan for costs, attorney fees, and interest under MCL 500.3172(3)(f). We conclude that MCL 500.3172(3) does not apply to this case. Its inapplicability results from the fact that the Assigned Claims Facility assigned the insured’s claim to Titan because the insured claimed that no personal protection insurance applied to her injury and not because of a dispute between two or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss. Accordingly, the trial court erred in granting Titan costs, attorney fees, and interest under the statute. We reverse.
BACKGROUND FACTS
Kimberly Grahl was injured in an accident while driving a car owned by James Cadzow. She was taken to Spectrum Health for treatment. Grahl believed she did not have any insurance to cover her medical expenses and, further, that Cadzow did not have insurance on the vehicle on the day of the accident. She also claimed that she did not live with anyone who had automobile insurance and that neither she nor her husband, from whom she was separated, carried any applicable insurance. Consequently, in June 2003, she filed an application for bodily injury benefits with the Michigan Assigned Claims Facility, which, in July 2003, assigned the claim to Titan.
When Titan failed to pay Grahl’s medical bills, Spectrum Health commenced the underlying action. In December 2003, Titan filed a third-party claim against Farmers, claiming that Grahl had no-fault coverage under motor vehicle insurance policies her estranged husband held with Farmers. Farmers contested the claims, and the parties commenced litigation to determine if Grahl was covered under the Farmers policy. Titan paid Spectrum Health in April 2004, and Spectrum dismissed its claims against Titan. In June 2004, Titan and Farmers both filed third-party complaints against Health Alliance Plan of Michigan, asserting that Grahl also had health insurance coverage under a Health Alliance plan at the time of the accident.
In April 2005, Titan moved for summary disposition regarding its claims against Farmers, contending that Farmers was a higher-priority insurer than Titan and therefore should reimburse Titan the amount it had paid to Spectrum, along with costs, attorney fees, and interest under MCL 500.3172. Before the motion for summary disposition was heard by the trial court, Farmers reimbursed Titan the amount it had paid to Spectrum. However, Farmers contended that MCL 500.3172 did not impose a duty on Farmers to reimburse costs, attorney fees, and interest incurred by Titan during the course of the litigation. The trial court rejected that argument and granted Titan’s motion for summary disposition, awarding it $16,784.99 to cover costs, attorney fees, and interest incurred in pursuing its claim against Farmers. The court’s final order also dismissed Farmers’ and Titan’s claims against Health Alliance. Farmers now brings this appeal.
ANALYSIS
We review de novo the trial court’s grant of summary disposition under MCR 2.116(C)(10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). We also review de novo questions of law involving statutory interpretation. Michigan Muni Liability & Prop Pool v Muskegon Co Rd Comm’rs, 235 Mich App 183, 189; 597 NW2d 187 (1999). When construing the provisions of a statute, our primary task is to discern and give effect to the intent of the Legislature. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). “If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted.” Id.
MCL 500.3172(1) allows an uninsured person to obtain personal protection insurance benefits through an assigned claims plan under four situations:
A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, mainte nance, or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through an assigned claims plan if [1] no personal protection insurance is applicable to the injury, [2] no personal protection insurance applicable to the injury can be identified, [3] the personal protection insurance applicable to the injury cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss, or [4] the only identifiable personal protection insurance applicable to the injury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provide benefits up to the maximum prescribed. In such case unpaid benefits due or coming due are subject to being collected under the assigned claims plan, and the insurer to which the claim is assigned, or the assigned claims facility if the claim is assigned to it, is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility.
Titan was assigned Grahl’s claim because, at the time of the assignment, both Grahl and the Assigned Claims Facility were unable to identify any other source of personal protection insurance applicable to cover Grahl’s medical expenses. These are the first and second situations identified in the statute. Only when Titan began investigating the claim did it discover that Grahl had personal protection insurance through her estranged husband’s policy with Farmers.
Though MCL 500.3172(1) concludes with a reimbursement provision, it does not specify whether the right to reimbursement includes a right to recover costs, attorney fees, and interest. Michigan follows the “American rule” with respect to the payment of costs and attorney fees. Haliw v Sterling Hts, 471 Mich 700, 706; 691 NW2d 753 (2005). “Under the American rule, attorney fees generally are not recoverable from the losing party as costs in the absence of an exception set forth in a statute or court rule expressly authorizing such an award.” Id. at 707. Exceptions to the doctrine that attorney fees are not recoverable are narrowly construed. Brooks v Rose, 191 Mich App 565, 575; 478 NW2d 731 (1991). “Recovery has been allowed in limited situations where a party has incurred legal expenses as a result of another party’s fraudulent or unlawful conduct.” Id. “Recovery has also been permitted where a defendant’s wrongful conduct has forced a party to incur legal expenses in prior litigation with a third party.” Id. Because MCL 500.3172(1) does not specifically state that the assigned claims insurer can recover costs, attorney fees, and interest from a higher-priority insurer as part of its general right to reimbursement, we conclude that the right to reimbursement granted by this section does not include a right to recover those expenses from a higher-priority insurer.
In contrast, MCL 500.3172(3) specifically allows an assigned claims insurer like Titan to recover costs, attorney fees, and interest under certain limited circumstances:
If the obligation to provide personal protection insurance benefits cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss, and if a method of voluntary payment of benefits cannot be agreed upon among or between the disputing insurers, all of the following shall apply:
(a) The insurers who are parties to the dispute shall, or the claimant may, immediately notify the assigned claims facility of their inability to determine their statutory obligations.
(b) The claim shall be assigned by the assigned claims facility to an insurer which shall immediately provide personal protection insurance benefits to the claimant or claimants entitled to benefits.
(c) An action shall be immediately commenced on behalf of the assigned claims facility by the insurer to whom the claim is assigned in circuit court for the purpose of declaring the rights and duties of any interested party.
(d) The insurer to whom the claim is assigned shall join as parties defendant each insurer disputing either the obligation to provide personal protection insurance benefits or the equitable distribution of the loss among the insurers.
(e) The circuit court shall declare the rights and duties of any interested party whether or not other relief is sought or could be granted.
(f) After hearing the action, the circuit court shall determine the insurer or insurers, if any, obligated to provide the applicable personal protection insurance benefits and the equitable distribution, if any, among the insurers obligated therefor, and shall order reimbursement to the assigned claims facility from the insurer or insurers to the extent of the responsibility as determined by the court. The reimbursement ordered under this subdivision shall include all benefits and costs paid or incurred by the assigned claims facility and all benefits and costs paid or incurred by insurers determined not to be obligated to provide applicable personal protection insurance benefits, including reasonable attorney fees and interest at the rate prescribed in section 3175 as of December 31 of the year preceding the determination of the circuit court.
Titan argues that MCL 500.3172(3) (f) permits it to recover costs, attorney fees, and interest from Farmers because those expenses arose from a dispute between Farmers and Titan regarding the payment of personal protection insurance benefits. Titan contends that the terms of MCL 500.3172 do not limit such reimbursement
to situations where a claim is assigned to the Assigned Claims Facility because of a dispute between two or more insurance companies. Rather, Section 3172(3) provides that if the obligation to provide [personal protection insurance] benefits cannot be determined because of a dispute between two or more insurers, then the court shall determine who is responsible and shall order reimbursement, which shall include costs, attorney fees and interest. In this case, Farmers disputed that it was responsible for paying [personal protection insurance] benefits. Accordingly, the circuit court properly ordered Farmers to reimburse Titan after Farmers finally admitted that it was first in priority for payment of [personal protection insurance] benefits.
A plain reading of MCL 500.3172 does not support Titan’s interpretation. By its terms, MCL 500.3172(3) only applies “[i]f the obligation to provide personal protection insurance benefits cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage ....” When such a dispute occurs, MCL 500.3172(3) establishes a procedure by which a claimant is provided personal protection insurance benefits while the insurers resolve their dispute. The disputing insurers must notify the Assigned Claims Facility of their dispute, and only at that time does the Assigned Claims Facility assign an insurer to provide personal protection insurance benefits. MCL 500.3172(3)(f) requires insurers to reimburse the Assigned Claims Facility to the extent of their responsibility for benefits coverage, and to include in this reimbursement costs, attorney fees, and interest, but only when the Assigned Claims Facility was brought in to provide personal protection insurance benefits because the insurers earlier identified as sources of coverage dispute their respective obligations to provide this coverage.
Titan was assigned this claim because, at the time the Assigned Claims Facility received Grahl’s application for benefits, neither Grahl nor the Assigned Claims Facility could identify any personal protection insur anee applicable to Grahl’s automobile accident. Titan only discovered Farmers’ potential obligation to provide personal protection benefits to Grahl after the Assigned Claims Facility assigned Titan the claim. Titan was not assigned this claim because a dispute between two or more insurers regarding their respective obligations to provide insurance coverage meant that the applicable personal protection insurance could not be ascertained. Therefore, the provisions of MCL 500.3172(3) do not apply, and Titan is not eligible to recover costs, attorney fees, and interest under MCL 500.3172(3)(f).
This understanding of MCL 500.3172(3) is consistent with the provisions of MCL 500.3172(1). As discussed earlier, that section allows an uninsured person to obtain personal protection insurance benefits through an assigned claims plan under four situations. The first situation described in MCL 500.3172(1) is at issue here because Grahl obtained assigned claim benefits on the basis of her assertion that “no personal protection insurance” could be identified as applying to her injury. MCL 500.3172(3) does not allow the recovery of costs and attorney fees when benefits are obtained under the first and second situations described in MCL 500.3172(1). Instead, the limiting “if” clause of MCL 500.3172(3) provides that costs, attorney fees, and interest are only recoverable where the personal protection insurance applicable to the injury “cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss. . . .” That statutory language is identical to the third situation described in MCL 500.3172(1). Because this case does not present that situation, there is no statutory authorization for the recovery of costs, attorney fees, and interest by Titan from Farmers. Further, our understanding of the statute is consistent with dicta stated by another panel of our Court in Spencer v Citizens Ins Co, 239 Mich App 291, 303-304; 608 NW2d 113 (2000).
We reject Titan’s argument that MCL 300.3172 is ambiguous because reasonable minds could differ regarding the meaning of the statute. That is not the proper test for determining whether a statute is ambiguous. Lansing Mayor v Pub Service Comm, 470 Mich 154, 165-166; 680 NW2d 840 (2004); Fluor Enterprises, Inc v Dep’t of Treasury, 265 Mich App 711, 720-721; 697 NW2d 539 (2005). Further, as the above analysis illustrates, no reasonable person reading the clear language of the statute could conclude that it provides for recovery of costs, attorney fees, and interest under the facts of this case.
We note Titan’s claim that interpreting MCL 500.3172 to preclude Titan from recovering all its expenses compromises the Legislature’s intent, because the Legislature passed MCL 500.3172 to ensure that assigned claims insurers are reimbursed completely and otherwise made whole when a higher-priority insurer is identified. However, we do not consider such policy arguments when reading and construing the clear provisions of a statute:
Our task, under the Constitution, is the important, but yet limited, duty to read and interpret what the Legislature has actually made the law. We have observed many times in the past that our Legislature is free to make policy choices that, especially in controversial matters, some observers will inevitably think unwise. This dispute over the wisdom of a law, however, cannot give warrant to a court to overrule the people’s Legislature. [Lansing Mayor, supra at 161.1
Because MCL 500.3172 clearly limits the circumstances under which an assigned claims insurer may recover costs, attorney fees, and interest, we must apply the statute as written, without regard to Titan’s policy arguments.
As its last claim, Titan asserts that Farmers was not justified in waiting to reimburse Titan, and therefore should be liable for the costs, attorney fees, and interest Titan incurred as a result. Essentially, Titan argues that this Court should, as a matter of equity, allow recovery of these expenses to correct an injustice arising from Farmers’ delay in reimbursing Titan.
As previously noted, recovery of attorney fees “has been allowed in limited situations where a party has incurred legal expenses as a result of another party’s fraudulent or unlawful conduct,” and “has also been permitted where a defendant’s wrongful conduct has forced a party to incur legal expenses in prior litigation with a third party.” Brooks, supra at 575. However, the record here does not establish that Farmers’ delay in reimbursing Titan until after the parties determined that Farmers, and not Health Alliance, was the higher-priority insurer was wrongful, fraudulent, or unlawful. Instead, Titan argues that Farmers should have reimbursed Titan in full and then pursued a claim against Health Alliance, because
there is no provision in the no-fault act that allows an auto insurer that is first in priority for payment of [personal protection insurance] benefits (in this case, Farmers), to delay reimbursing the assigned-claims insurer (in this case, Titan), on the basis that a health insurer (in this case, [Health Alliance]) may also be liable for the injured party’s medical expenses.
Titan points to no statutory provision that obligated Farmers to make a more prompt reimbursement to Titan. The mere lack of statutory authority permitting Farmers to delay payment until the litigation with Health Alliance was resolved does not establish that Farmers acted wrongfully in delaying payment until the litigation was resolved. We do not conclude that Farmers engaged in sufficiently wrongful conduct to warrant an equitable award of costs, attorney fees, and interest.
conclusion
We reverse the trial court’s order requiring Farmers to pay costs, attorney fees, and interest to Titan. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
There is no claim raised on appeal that the trial court’s dismissal of the claims against Health Alliance was erroneous. | [
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MURPHY, P.J.
Flaintiff appeals as of right and defendant cross-appeals a final order entered by the trial court that addressed issues of appraisal modification, penalty interest, prejudgment interest, and costs. We hold that defendant waived any claim that plaintiff was not entitled to some of the requested insurance benefits for lack of coverage when it conceded coverage in the pleadings and demanded and pursued an appraisal, thereby also waiving any coverage-based challenge of the appraisal award. Further, we hold that plaintiff may be entitled to penalty interest, MCL 500.2006, and is entitled to prejudgment interest, MCL 600.6013. Finally, we hold that plaintiff is entitled to costs as the prevailing party. We reverse and remand.
Plaintiff purchased an insurance policy from defendant that included “Deluxe House Coverage” and “extended replacement cost.” Plaintiffs home has approximately 8,500 square feet and was built on a hill that inclines toward Lake Michigan. In December 2000, plaintiff returned from a vacation to find that water pipes had burst and the escaping water had collected under the lowest floor of the house. Plaintiff mailed defendant a sworn statement in proof of loss concerning the damage, which defendant rejected. On December 14, 2001, plaintiff, having received no payment under the policy, filed a complaint against defendant seeking insurance benefits to cover the claimed damage. In April 2002, the land on the western side of plaintiffs property collapsed and subsided downhill toward Lake Michigan. On May 21, 2002, defendant filed an answer to plaintiffs complaint and demanded that the matter be submitted to an appraisal panel pursuant to MCL 500.2833(l)(m). Before an appraisal panel was convened, defendant finally made an initial payment of benefits to plaintiff in the amount of $300,000. Pursuant to the parties’ stipulation, they convened an appraisal panel and the parties’ attorneys coauthored a letter informing the panel that it was only to consider the loss and damage caused by the December 2000 broken water pipes. The appraisal panel awarded plaintiff $1,058,750 in damages.
Within 60 days of the appraisal award, defendant paid plaintiff $242,795, which represented the amount of the appraisal award minus the amount of the advance payment and disputed portions of the appraisal award. Defendant subsequently filed a motion to modify the appraisal award, arguing that the award included amounts for property damage that was not covered by the insurance policy. Plaintiff filed a motion to enter judgment in the amount of the appraisal award and requested pre- and postjudgment interest. The court issued a final order granting defendant’s motion to modify the appraisal award; granting defendant’s motion for summary disposition with respect to plaintiffs request for statutory penalty interest pursuant to the Uniform Trade Practices Act (UTPA), MCL 500.2001 et seq.; denying plaintiffs request for statutory prejudgment interest pursuant to MCL 600.6013; entering judgment in favor of plaintiff for the amount of the modified appraisal award; and allowing plaintiff taxable costs.
THE APPRAISAL AWARD
Plaintiffs first argument on appeal is that the court erred by modifying the appraisal award. Specifically, plaintiff argues that defendant should have been precluded from disputing coverage because defendant waived the argument or was estopped from making the argument, that the court did not have authority to review the appraisal award, that the court misinterpreted the insurance policy, and that plaintiff should have been awarded consequential and incidental damages arising from the breach of contract claim equal to the full appraisal award even if coverage was limited. We hold that defendant waived any claim that plaintiff was not entitled to some of the requested insurance benefits for lack of coverage when it conceded coverage in the pleadings and demanded and pursued an appraisal, thereby also waiving any coverage-based challenge of the appraisal award. Therefore, on remand, the trial court is to enter a money judgment in favor of plaintiff consistent with the appraisal award.
“[T]he question of what constitutes a waiver is a question of law.” MacInnes v Machines, 260 Mich App 280, 283; 677 NW2d 889 (2004). The issue is thus reviewed de novo by this Court. Id. “In order for defendant to waive its rights against plaintiff, it must have intentionally and knowingly relinquished those rights.” South Macomb Disposal Auth v Michigan Muni Risk Mgt Auth, 207 Mich App 475, 476; 526 NW2d 3 (1994). “It necessarily follows that conduct that does not express any intent to relinquish a known right is not a waiver, and a waiver cannot be inferred by mere silence.” Moore v First Security Cas Co, 224 Mich App 370, 376; 568 NW2d 841 (1997). Waiver may be shown by proof of express language of agreement or inferably established by such declaration, act, and conduct of the party against whom it is claimed. H J Tucker & Assoc, Inc v Allied Chucker & Engineering Co, 234 Mich App 550, 564; 595 NW2d 176 (1999). In the context of the court rules, “[a] defense not asserted in the responsive pleading or by motion [before filing a responsive pleading] ... is waived....” MCR 2.111(F)(2). Moreover, a party is bound by its pleadings. Joy Oil Co v Fruehauf Trailer Co, 319 Mich 277, 280; 29 NW2d 691 (1947); Emerson v Atwater, 12 Mich 314, 316 (1864) (“Pleadings would avail little or nothing if parties were not bound by them.”).
Defendant argues that land stabilization costs, except for ten percent of those costs, and landscape replacement costs were included in the appraisal award, but those items were not covered under the insurance policy and should not have been included in the award. In the sworn statement in proof of loss, the amount claimed by plaintiff was $1,368,518, which arguably included costs defined as land stabilization costs, along with landscape replacement costs. The claim was rejected, ostensibly because more detailed information and documentation was needed from plaintiff and further investigation was necessary to determine coverage under the policy. The rejection letter also provided that defendant reserved all rights and defenses under the policy. Thus, at this time, there was no waiver regarding coverage issues and defenses. Subsequently, however, plaintiff filed the complaint, and two of the paragraphs in it provided:
10. That this action for declaratory relief is brought pursuant to the statutes and court rules provided for the court to make a determination of the rights and remedies of the parties.
27. That this court has the authority and is requested to declare the rights and remedies of the parties to said insurance contract.
In defendant’s answer, it responded to these allegations as follows:
10. This cause of action is moot for the reason that a coverage decision has been made by Great Northern Insurance Company affording coverage for the property damage caused by the pipe break in December 2000.
27. Denies for the reason that the coverage issue is moot. Coverage has been afforded; only damages are at issue which are subject to the appraisal provisions of MCLA 500.2833.
Moreover, as part of its affirmative defenses, defendant stated:
6. That the only issue remaining concerns the amount of damages; that any dispute between the insured and the insurer are subject to the appraisal provisions of the policy and MCLA 500.2833; that the jurisdiction of this Court is limited to appointment of an Umpire if the appraisers selected by the parties cannot agree on an Umpire.
7. That Defendant hereby demands appraisal pursuant to the policy and MCLA 500.2833 ....
The only reasonable interpretation of defendant’s answer and affirmative defenses is that coverage matters were not, or were no longer, at issue. There is no limiting language with respect to defendant’s statements in the responsive pleadings that it was affording coverage. To the contrary, defendant’s response in its answer to paragraph 10 of plaintiffs complaint expressly indicated that it was “affording coverage for the property damage caused by the pipe break in December 2000.” Defendant conceded coverage and was bound by the position taken in its pleadings. When reading defendant’s responses to paragraphs 10 and 27 of the complaint, which paragraphs requested that the court render a determination of the parties’ rights and remedies, defendant makes clear that court intervention, or the exercise of the court’s jurisdiction, was unnecessary and was indeed improper, except possibly in regard to issues concerning the selection of an umpire in the appraisal process. Defendant did not want the trial court to settle the dispute, but, rather, the appraisers, and defendant, in response to paragraph 27, clearly and unambiguously stated that only damages were at issue and that issue was subject to the appraisal process. That being said, defendant acknowledges, accepts, and vehemently argues that coverage issues are solely within the purview of the trial court, not the appraisers. Therefore, by indicating that the court should not be involved with the case and that the appraisal process was the only appropriate avenue for relief, defendant was necessarily conceding that there were no coverage issues to be judicially resolved. The issue of coverage under the policy was waived. Only after the appraisal and dissatisfaction with the appraisal award did defendant appear to recognize that there may be coverage issues, and belatedly, nearly 16 months into the litigation, defendant made coverage an issue. While defendant’s answer to plaintiffs amended complaint finally asserted that coverage issues were not entirely moot because there was a dispute regarding whether some of the items of loss were covered under the policy, this argument came after the breach of contract claim had been submitted for appraisal, after an appraisal award had been issued, and after plaintiff had incurred costs and made construction decisions relative to repairs. Defendant’s untimely assertion of coverage issues rendered its argument irrelevant at that point.
Judicial review of an appraisal award is limited to instances of “bad faith, fraud, misconduct, or manifest mistake.” Auto-Owners Ins Co v Kwaiser, 190 Mich App 482, 486; 476 NW2d 467 (1991). The Kwaiser panel found that the issue of an insurance policy’s coverage is for the court to decide, not the appraisers. Id. at 487. Additionally, “[w]here the parties cannot agree on coverage, a court is to determine coverage in a declaratory action before an appraisal of the damage to the property.” Id.
In October 2002, the parties stipulated that the breach of contract claim would be submitted for appraisal under MCL 500.2833(l)(m). By demanding an appraisal and failing to seek court intervention to determine coverage issues before the appraisal, and considering defendant’s concessions in the answer and affirmative defenses cited above, defendant became bound by the appraisal award absent bad faith, fraud, misconduct, or manifest mistake, and it waived a coverage-based challenge of the appraisal award. There was no claim of bad faith or fraud, and, to the extent that defendant maintains misconduct or mistake on the part of the appraisers by the alleged inclusion of damages or amounts related to the April 2002 land collapse, the umpire and the plaintiffs appraiser averred and testified that their calculations were based on the damage caused by the burst water pipes, not the events of April 2002. MCL 500.2833(l)(m) makes clear that the appraisers shall set the amount of the loss to be paid, and that was accomplished here by way of defendant’s appraisal demand and agreement. The award must be enforced without consideration of coverage claims in light of defendant’s position as reflected in the answer, affirmative defenses, and its course of conduct leading up to the appraisal process. Accordingly, on remand, the trial court is directed to enter a money judgment in favor of plaintiff consistent with the appraisal award.
UNIFORM TRADE PRACTICES ACT, MCL 500.2006
Plaintiff next contends that the court erred by granting defendant’s motion for summary disposition of his claim for statutory penalty interest pursuant to MCL 500.2006. This Court reviews de novo the grant or denial of a motion for summary disposition. Devillers v Auto Club Ins Ass’n, 473 Mich 562, 567; 702 NW2d 539 (2005). Questions of statutory interpretation are also reviewed de novo. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002). A motion for summary disposition pursuant to MCR 2.116(0(10) tests the factual sufficiency of the complaint. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004), citing Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). When deciding a motion for summary disposition pursuant to MCR 2.116(0(10), a court must consider the pleadings, affidavits, depositions, admissions, and other evidence submitted in the light most favorable to the nonmoving party. SPECT Imaging, Inc v Allstate Ins Co, 246 Mich App 568, 573-574; 633 NW2d 461 (2001), citing Maiden, supra at 120.
The question before the trial court was whether plaintiff was entitled to penalty interest pursuant to MCL 500.2006. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). “Statutory language should be construed reasonably, keeping in mind the purpose of the act.” People v Spann, 250 Mich App 527, 530; 655 NW2d 251 (2002), aff'd 469 Mich 904 (2003). “If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.” USAA Ins Co v Houston Gen Ins Co, 220 Mich App 386, 389; 559 NW2d 98 (1996). Nothing will be read into a clear statute that is not within the manifest intent of the Legislature as derived from the language of the statute itself. Roberts, supra at 63.
MCL 500.2006 provides, in relevant part:
(1) A person must pay on a timely basis to its insured... the benefits provided under the terms of its policy, or, in the alternative, the person must pay to its insured... 12% interest, as provided in subsection (4), on claims not paid on a timely basis. Failure to pay claims on a timely basis or to pay interest on claims as provided in subsection (4) is an unfair trade practice unless the claim is reasonably in dispute.
(3) An insurer shall specify in writing the materials that constitute a satisfactory proof of loss not later than 30 days after receipt of a claim unless the claim is settled within the 30 days. If proof of loss is not supplied as to the entire claim, the amount supported by proof of loss shall be considered paid on a timely basis if paid within 60 days after receipt of proof of loss by the insurer....
(4) If benefits are not paid on a timely basis the benefits paid shall bear simple interest from a date 60 days after satisfactory proof of loss was received by the insurer at the rate of 12% per annum, if the claimant is the insured or an individual or entity directly entitled to benefits under the insured’s contract of insurance. If the claimant is a third party tort claimant, then the benefits paid shall bear interest from a date 60 days after satisfactory proof of loss was received by the insurer at the rate of 12% per annum if the liability of the insurer for the claim is not reasonably in dispute, the insurer has refused payment in bad faith and the bad faith was determined by a court of law.
As stated above, plaintiff sent defendant a sworn statement in proof of loss, which included an explanation of the event that caused the loss and various estimates to fix the damage and which included detailed itemized lists of costs. In response, defendant rejected plaintiffs sworn statement in proof of loss because defendant found it unsatisfactory and because defen dant needed additional time to investigate and review in order “to determine the extent, if any, of coverage and the applicability of any policy terms, limitations or exclusions.” Defendant explained that the “whole loss and damage” and “amount claimed” were not set forth with finality, and it required more detailed figures. Therefore, at the time of these communications, there was no agreement regarding the amount of damage or coverage. There is no indication in the record that the parties ever agreed on the total amount of loss before sending the issue to the appraisal panel; however, as reflected in our ruling concerning waiver of coverage arguments, there was no dispute, reasonable or otherwise, with respect to coverage when defendant filed its answer and affirmative defenses.
From the various figures submitted before and during the appraisal process, it is obvious that there was disagreement about the amount of damage. For example, plaintiffs statement of loss claimed $1,368,518, plaintiffs appraiser appraised the loss at $1,270,500, defendant’s appraiser set the value of the claim at $474,760, and the actual appraisal award was for $1,058,750. Therefore, there was clearly a dispute among the parties involved about the amount of damage. Those amounts, however, that included land stabilization and landscape replacement costs were not in reasonable dispute beginning with the date that defendant filed its initial pleadings, but limited to the extent that these amounts were based solely on the coverage issue and not the particular dollar costs attributed to the repairs and replacement items. Costs and amounts claimed, other than those related purely to the coverage issues, may have been in reasonable dispute to some extent, although clearly not all these amounts were subject to reasonable dispute. Defendant never contended that nothing was owed under the policy. We do conclude that there was a reasonable dispute regarding the costs associated with land stabilization and landscape replacement for the period before the filing of the answer and affirmative defenses, even assuming that plaintiff submitted a satisfactory proof of loss. For reasons expressed later in this opinion, the fact that a portion of an insurance claim is reasonably in dispute does not mean that an award of penalty interest is altogether precluded.
Plaintiff argues that this Court should adhere to the Michigan Supreme Court’s reasoning in Yaldo v North Pointe Ins Co, 457 Mich 341; 578 NW2d 274 (1998). The issue before the Court in Yaldo was whether MCL 600.6013(5) or (6) applied “on a judgment for plaintiff because of defendant’s failure to pay plaintiffs claim under an insurance contract.” Yaldo, supra at 343. After concluding that an insurance policy is a written instrument, and therefore the MCL 600.6013(5) was the subsection relevant to the issue before the Court, the Court responded to the defendant’s argument that “including insurance policies under the definition of ‘written instrument’ would nullify MCL 500.2006(4) . . . .” Id. at 345-347. In a footnote, the Court stated:
Defendant’s claim that our holding would negate the “reasonably in dispute” language of MCL 500.2006(4); MSA 24.12006(4) is based on a misreading of the statute. Its express terms indicate that the language applies only to third-party tort claimants. Where the action is based solely on contract, the insurance company can be penalized with twelve percent interest, even if the claim is reasonably in dispute. [Id. at 348 n 4.]
Accordingly, plaintiff argues that, pursuant to Yaldo, this Court should hold that plaintiff is entitled to penalty interest even if the claim was reasonably in dispute.
In Arco Industries Corp v American Motorists Ins Co (On Second Remand, On Rehearing), 233 Mich App 143, 147-148; 594 NW2d 74 (1998), affd by equal division 462 Mich 896 (2000), this Court stated:
Upon further review, we conclude that the Yaldo majority’s interpretation of MCL 500.2006(4); MSA 24.12006(4) was dictum. At issue in Yaldo was the interpretation and application of the judgment interest statute, MCL 600.6013; MSA 27A.6013, and not the penalty interest statute. It is a well-settled rule that statements concerning a principle of law not essential .to determination of the case are obiter dictum and lack the force of an adjudication. The portion of the Yaldo majority opinion discussing MCL 500.2006(4); MSA 24.12006(4) was not necessary to its decision of the issue before the Court and must therefore be regarded as merely dictum that is not binding on this Court. Accordingly, Yaldo did not establish a rule of law with regard to the interpretation of MCL 500.2006(4); MSA 24.12006(4). [Citations omitted.]
This Court further noted, “The purpose of the penalty interest statute is to penalize insurers for dilatory practices in settling meritorious claims, not to compensate a plaintiff for delay in recovering benefits to which the plaintiff is ultimately determined to be entitled.” Id. at 148. The Court ruled that penalty interest under MCL 500.2006 is not available if there existed a reasonable dispute regarding the claim. Id. at 148-149. Accordingly, we follow the rule of law established in Arco rather than the dicta in Yaldo.
Having found that at least a portion of plaintiffs claimed costs or damage, but not all, was reasonably in dispute, we conclude that plaintiff might nonetheless be entitled to some penalty interest despite the fact that certain aspects of the claim were in reasonable dispute. As mentioned above, it is abundantly clear from the record that defendant knew that some level of benefits was due under the insurance policy. In October 2002,14 months after the sworn statement in proof of loss was submitted and ten months after the complaint was filed, defendant paid plaintiff $300,000 under the policy, even though the appraisal award had not yet been issued. Further, defendant’s appraiser set the value of the claim at $474,760. Defendant recognized that a substantial sum of money was owing under the policy. So while there may have been a reasonable dispute over whether the full $1,058,750 was owed to plaintiff under the policy, there was no reasonable dispute that a substantial sum was owed to plaintiff, thereby allowing for the possibility of penalty interest. To rule otherwise would allow an insurer to withhold all payment without penalty, even if only a fraction of the claim was in reasonable dispute. For example, if an insured presented a proper claim for $100,000 under a policy and the insurer reasonably disputed only $100 of the amount requested, the insurer could refuse to make any payment whatsoever without fear of being subject to penalty interest pursuant to MCL 500.2006. Our ruling is consistent with the language of the statute, which speaks of a “claim” being reasonably in dispute. MCL 500.2006(1). This language indicates that the entire claim must be in reasonable dispute before an insurer can escape without paying any penalty interest, and not just portions of the claim. The statute does not provide that penalty interest is to be imposed “unless the extent or amount of the claim is reasonably in dispute.” In other words, if the insurer reasonably argues that no payment is due under a policy, then no penalty interest can be imposed after resolution of the dispute by a court or through appraisal, but if some portions of the claim, properly presented, are beyond reasonable dispute, timely payment must be made to that extent to avoid penalty interest, leaving the reasonably disputed portions subject to later resolution without application of penalty interest.
In the Arco case, the insurer refused entirely to defend or indemnify the insured with respect to an underlying lawsuit brought against the insured, alleging that the insurance contract did not cover the pollution and contamination matters at issue. See Arco Industries Corp v American Motorists Ins Co, 448 Mich 395, 399-401; 531 NW2d 168 (1995). The Arco panel ruled that the trial court properly found that the insurer disputed its defense obligation in good faith and that legitimate issues were contested; therefore, the insured was not entitled to penalty interest under MCL 500.2006. Arco, supra, 233 Mich App at 148-149. In Marketos v American Employers Ins Co, 240 Mich App 684, 686; 612 NW2d 848 (2000), rev’d in part on other grounds 465 Mich 407 (2001), the insurer denied, in its entirety, an insurance claim that arose out of a fire, arguing that the fire was an arson, which fire was alleged to have been set by the insured or at the insured’s direction. The Marketos panel held that the trial court properly refused to award penalty interest because the arson defense was reasonable. Id. at 697-698. In Siller v Employers Ins of Wausau, 123 Mich App 140, 144; 333 NW2d 197 (1983), which was cited by this Court in Arco, the insurer refused to pay a claim, citing a coordination of benefits clause, and this Court held that the insured’s claim for benefits was not reasonably in dispute because the contract clause relied on by the insurer was legally invalid. Thus, the trial court properly awarded penalty interest under MCL 500.2006. Id. In Norgan v American Way Life Ins Co, 188 Mich App 158, 159; 469 NW2d 23 (1991), another case relied on by the Arco panel, the insurer refused entirely to pay a claim where “the decedent did not meet the eligibility requirements of the policy because he retired for medical reasons.” Again, there was a complete denial of coverage, and this Court held that the “plaintiffs claim was not reasonably in dispute and the trial court did not err in awarding interest under § 2006 of the Uniform Trade Practices Act.” Id. at 165.
This brings us to O J Enterprises, Inc v Ins Co of North America, 96 Mich App 271; 292 NW2d 207 (1980), in which the parties engaged in the appraisal process, and the insured was denied penalty interest under MCL 500.2006. This Court concluded that
when the amount of the loss is reasonably disputed by the insurer and the insured and the matter is submitted to a court-appointed appraiser, MCL 500.2006(4); MSA 24.12006(4) should be read in conjunction with MCL 500.2832; MSA 24.12832. ... Therefore, insurers will be allowed up to 60 days from the date of the appraiser’s award to pay awarded benefits to policy holders. [Id. at 274 (emphasis added).]
Because the defendant paid within 60 days of the appraisal award, “the 12 per cent interest penalty was never triggered.” Id. at 275.
In O J Enterprises, the insurer made an initial payment of $26,000 to the insured, before litigation commenced, on the insured’s claimed proof of loss of $200,000. The appraisal award was for $88,796, and the insurer paid the balance, $62,796, within 60 days. Although the opinion does not make it clear, it appears that the insured was seeking penalty interest on $62,796, not the entire $88,796 award. It also appears that this Court proceeded on the basis that there was a reasonable dispute over $62,796, which represented the difference between the appraisal award and the initial payment made to the insured. We cannot determine from the language of the opinion whether the panel would have barred penalty interest on the initial $26,000 payment had it found that the payment was untimely and not in reasonable dispute. We read O J Enterprises as merely indicating that reasonably disputed amounts sent to appraisal need not be paid, without threat of penalty interest, until after an appraisal award is issued, and not as indicating that, because there exists a reasonable dispute on a portion of the amount claimed, the undisputed portion need not be paid, free of penalty interest, until after an appraisal award is issued. Therefore, we conclude that O J Enterprises does not conflict with our ruling that, despite the use of the appraisal process to resolve a dispute regarding the full extent of the amount recoverable, an insurer can be liable for penalty interest under MCL 500.2006 for portions of the claim that were not reasonably disputed.
The concept of “reasonable dispute” must be viewed with respect to the “difference” between the amount claimed by the insured and the amount, limited by the ultimate appraisal award, that an insurer does not legitimately dispute is owed under the policy. If an insured claims $200,000 under a policy, the insurer’s position is that only $60,000 is owed, and an appraisal results in a $140,000 award, the focus must be on the $80,000 over which the parties differed, as limited by the award, and whether there was a reasonable dispute concerning that amount. The insurer cannot be allowed to withhold all payment until the appraisal is complete and skirt, without penalty, earlier and timely payment of the $60,000 for which there was no reasonable dispute.
MCL 500.2833(l)(m), which is the statutory provision made applicable by the parties’ stipulation for purposes of appraisal, does reflect that an insurer has time after the appraisal award to make payment on the award. However, once again, an appraisal under MCL 500.2833(l)(m), or any appraisal for that matter when the parties disagree on the amount of the claim, necessarily focuses on the amount in dispute, and the award settles the disputed differences. The appraisers are not calculating a dollar amount below that which the insurer is willing to pay on the policy. Thus, the appraisers are issuing an award that is equal to or greater than that agreed to by the insurer, and the award is actually reflective of that difference, if any, despite the fact that the award will be stated in terms of the entire amount owing under the policy. To read MCL 500.2833(l)(m) any differently, when viewing it in the context of MCL 500.2006, would render MCL 500.2006 meaningless when appraisals are involved.
This does not end the analysis, however, because penalty interest does not begin to accrue under MCL 500.2006(4) until 60 days after a satisfactory proof of loss. On remand, the trial court is to first determine whether plaintiff supplied defendant with a satisfactory proof of loss with respect to any amount claimed in the sworn statement in proof of loss so that the 60-day period began to run. If there was a failure to supply a satisfactory proof of loss with regard to a portion of the claim, the court may still award penalty interest if there was a satisfactory proof of loss with respect to a separate portion of the claim. See MCL 500.2006(3). Additionally, as part of this analysis, the court must take into consideration whether defendant properly rejected the proof of loss by specifying “in writing the materials that constitute a satisfactory proof of loss[.]” MCL 500.2006(3). If defendant did not comply with this provision, plaintiff was excused from submitting a proof of loss and the matter shall proceed as if a satisfactory proof of loss were submitted. Medley v Canady, 126 Mich App 739, 745; 337 NW2d 909 (1983) (“Further, reading MCL 500.2006[3] and 500.2006[4] together, we conclude that failure to specify in writing the materials which constitute satisfactory proof of loss excuses the requirement of said proof of loss in MCL 500.2006[4].”).
If the trial court determines that plaintiff supplied a satisfactory proof of loss, or that it was excused, the court must then determine, with input from the parties, that amount of the claim that was not reasonably in dispute, as governed and guided by our directions above on the matter, which assessment can be viewed at the 60-day mark following submission of the proof of loss or anytime thereafter before payment. After determinations regarding the issues of satisfactory proof of loss and whether portions of the claim were reasonably in dispute, applicable penalty interest, if any, is to be calculated.
MCL 600.6013
Plaintiff next contends that the trial court erred in declining to award him prejudgment interest pursuant to MCL 600.6013. This issue encompasses an argument raised by defendant on cross-appeal in which defendant maintains that the court erred by entering a judgment in favor of plaintiff for the amount of the modified appraisal award, considering that there was no need to do so after defendant had paid the full balance due.
An award of interest pursuant to MCL 600.6013 is reviewed de novo. Beach v State Farm Mut Automobile Ins Co, 216 Mich App 612, 623-624; 550 NW2d 580 (1996). Questions of statutory interpretation are also reviewed de novo. Roberts, supra at 62.
MCL 600.6013(1) provides, “Interest is allowed on a money judgment recovered in a civil action, as provided in this section.” “For the purpose of the judgment interest statute, a money judgment is one that orders the payment of a sum of money, as distinguished from an order directing an act to be done or property to be restored or transferred.” In re Forfeiture of $176,598, 465 Mich 382, 386; 633 NW2d 367 (2001).
There can be no reasonable dispute that the trial court entered a money judgment ordering defendant to make payment of a sum of money under the policy and that the judgment controlled defendant’s financial obligations and plaintiffs financial entitlements under the policy. Furthermore, our ruling that plaintiff is entitled to the full amount of the appraisal award, $1,058,750, similarly requires the entry of a “money” judgment on remand. Under the clear and unambiguous language of MCL 600.6013, plaintiff is entitled to prejudgment interest. See Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 491-492; 672 NW2d 849 (2003) (MCL 600.6013 must be enforced as written, and disallowing interest accrual for periods of delay that are neither party’s fault or for periods of appellate delay is not permitted by the statute).
In Linford Lounge, Inc v Michigan Basic Prop Ins Ass’n, 77 Mich App 710; 259 NW2d 201 (1977), the parties sought an appraisal after a fire occurred at the insured’s building, and the insured filed a civil action when the parties could not agree on the appraisers. The complaint resulted in the appointment of an umpire, who found that the amount of the loss exceeded the policy limit of $47,000. The trial court refused to set aside the appraisal award on the insurer’s motion, and it entered judgment for $47,000 as determined by the umpire, plus interest from the date the complaint was filed. Id. at 711-712. This Court held that it was proper to award the insured prejudgment interest under MCL 600.6013 because the statute “controls an award of interest on a money judgment in a civil action[.]” Id. at 714. Likewise here, plaintiff was and is entitled to prejudgment interest pursuant to MCL 600.6013.
PREVAILING PARTY — COSTS
Defendant next contends that the court erred in finding plaintiff to be the prevailing party and allowing plaintiff to tax costs. Of course, we must now take into consideration our ruling and the increase in the judgment to $1,058,750. As such, our focus is not on the trial court’s order and award. “The determination whether a party is a ‘prevailing party’ under MCR 2.625 is a question of law.” Klinke v Mitsubishi Motors Corp, 219 Mich App 500, 521; 556 NW2d 528 (1996), aff'd 458 Mich 582 (1998).
MCR 2.625(A)(1) provides:
Costs will be allowed to the prevailing party in an action, unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action.
MCR 2.625(B)(2) provides:
In an action involving several issues or counts that state different causes of action or different defenses, the party prevailing on each issue or count may be allowed costs for that issue or count. If there is a single cause of action alleged, the party who prevails on the entire record is deemed the prevailing party.
In Forest City Enterprises, Inc v Leemon Oil Co, 228 Mich App 57, 81; 577 NW2d 150 (1998), this Court, in determining whether a party was a prevailing party under MCR 2.625, stated:
The fact that [a party] recovered less than the full amount of damages sought is not dispositive of whether it was the prevailing party. On the other hand, mere recovery of some damages is not enough; in order to be considered a prevailing party, that party must show, at the very least, that its position was improved by the litigation. [Citation omitted.]
Pursuant to our holding, plaintiff is awarded roughly 77 percent of the original claim, an extremely substantial amount, and defendant had paid plaintiff nothing at the time the complaint was filed. Moreover, plaintiff may be entitled on remand to some penalty interest under MCL 500.2006 relative to his UTPA claim. As such, we find that plaintiffs position was improved by the litigation, that plaintiff is the prevailing party, and that plaintiff is entitled to costs.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
We use the term “plaintiff” to refer either to plaintiff or the personal representative of plaintiffs estate as is appropriate in context.
The trial court dismissed with prejudice Chubb Group of Insurance Companies pursuant to the parties’ stipulation. Thus, we use the term “defendant” to refer simply to defendant Great Northern Insurance Company.
In Kwaiser, supra at 487, this Court remanded the action for a determination of the policy’s coverage by the trial court, thus suggesting that coverage issues could still be subject to a court ruling even after the appraisal. However, there is no indication in Kwaiser that Auto-Owners conceded coverage or waived a coverage defense.
We note that a March 17, 2003, letter sent to the appraisers and signed by counsel for both parties advised the appraisers “that both parties agree that only the loss and damages caused by the December 2000 broken water pipes are the subject of the appraisal proceedings.” Not only does this letter direct the appraisers to limit the scope of any award by not including the 2002 event, it reiterates defendant’s position that damage caused by the broken water pipes was to be determined by the appraiser without any indication that the determination should be limited on the basis of policy language or exclusions. Defendant’s chosen appraiser asserted that he considered coverage issues in setting a value, but there is no indication in his deposition testimony or affidavit that he or the other appraisers were ever directed by the parties to consider coverage issues. The umpire testified that he understood that it was not the appraisers’ duty to interpret the policy and make coverage determinations; rather, the appraisers were simply to determine costs and damage regardless of the policy.
The rejection letter states, “You have not specified all of the damages you claim nor are the damages supported by detailed estimates, bills, receipts etc.” The letter proceeds to state that defendant “will need to reinspect the property once we have received all detailed damages estimates to review costs and scope of proposed repairs.”
This valuation was influenced by coverage issues.
Other courts have similarly followed Arco ’s reasoning. See Marketos v American Employers Ins Co, 240 Mich App 684, 697; 612 NW2d 848 (2000) (citing Arco and holding that the plaintiffs were not entitled to penalty interest because the matter was reasonably in dispute), rev’d in part on other grounds 465 Mich 407 (2001); Michigan Twp Participating Plan v Fed Ins Co, 233 Mich App 422, 436-437; 592 NW2d 760 (1999) (following Arco for the proposition that interest is not available if an insurer fails to pay a claim that is reasonably in dispute); Sloan v Finsilver Assoc, Inc, 208 F Supp 2d 744, 748 (ED Mich, 2002) (citing Arco for the proposition that the “penalty interest statute does not apply in situations where the insurer’s obligation is reasonably in dispute”).
This Court is bound to “follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals ....” MCR 7.215(J)(1).
In Arco, supra, 233 Mich App 143, this Court did not recite the factual background of the case; however, the facts were discussed in the Supreme Court’s prior ruling in the action.
10 MCL 500.2832 was repealed by 305 PA 1990, but MCL 500.2833(2) revives and incorporates by reference the “former section 2832,” except as otherwise provided in the act. MCL 500.2833 sets forth the requirements of fire insurance policies issued or delivered in this state. MCL 500.2833(l)(m) requires that the policy include an appraisal provision for when “the insured and insurer fail to agree on the actual cash value or amount of the loss[.]” While the loss in the case at bar was not the result of a fire, the parties stipulated that an appraisal would be pursued under the terms of MCL 500.2833; therefore, we shall address O J Enterprises and the statute and their effect on this case. We note that the insurance policy itself includes a general appraisal provision, but it is short, vague, and open-ended and does not include the language of MCL 500.2833(l)(m).
Our ruling will not interfere with or disrupt the appraisal process, nor will it result in any unfairness to insurers utilizing the appraisal process. By way of example, if an insured makes a claim for $100,000 under a policy and the insurer reasonably maintains that the proper amount is $75,000, the dispute can go to appraisal to resolve the $25,000 difference in the parties’ positions, yet the insurer can also timely pay the $75,000, which it does not dispute, without waiting until the appraisal process is completed before making the payment toward the claim. There is no reason that an insured should have to wait until the appraisal is completed before receiving payment on that portion of the claim that is not in dispute.
For purposes of clarity and direction to the trial court on remand, any interest awarded under MCL 500.2006 “shall be offset by any award of interest that is payable by the insurer pursuant to the award.” MCL 500.2006(4); McCahill v Commercial Union Ins Co, 179 Mich App 761, 779-780; 446 NW2d 579 (1989).
OJ Enterprises, a case in which prejudgment interest on a judgment predicated on an appraisal award was not allowed, is distinguishable because there this Court noted that the insurer had not contested the amount of the loss determined by the appraiser; therefore, there was no need for judicial intervention to settle the award. O J Enterprises, supra at 275. Here, defendant requested judicial intervention, and a ruling by the trial court, and ultimately this Court, settled the award. Moreover, regardless of the need for judicial intervention, which is not mentioned anywhere in MCL 600.6013, all that is necessary is that a court enter a money judgment. | [
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BANDSTRA, E J.
This case raises a number of questions under § 20b of chapter 4 of the general highway law, MCL 224.20b. We conclude that the Tax Tribunal does not have exclusive jurisdiction over claims regarding the proper distribution of funds raised under that section. We also conclude that a county road commission, which is merely the recipient of funds raised under that section, is not properly a defendant to claims challenging the distribution. Further, we conclude that the section’s formula for distributing funds raised pursuant to a road tax millage must be followed, even with respect to millages for specific road projects, unless there is an agreement otherwise by the affected cities and villages.
BACKGROUND PACTS
This case arose out of a dispute over the distribution of revenues raised from the Van Burén County road millage, which was first approved by the voters in 1978 and which has been renewed regularly in succeeding elections. The purpose for the road millage, as presented to the electorate, was the construction, maintenance, and repair of county roads (local and primary); funds raised have been allocated exclusively to the county road commission for that purpose. Flaintiff city of South Haven alleged that it was entitled to a portion of the road xnillage proceeds under MCL 224.20b(2). Specifically, plaintiff alleged that the county defendants breached their statutory fiduciary duty to properly distribute the road millage; requested a writ of mandamus to have defendants remit plaintiffs portion of the millage; sought restitution, interest, and costs; requested that the trial court issue a declaratory judgment that plaintiff was entitled to road millage distributions; and alleged that defendants converted plaintiffs portion of the road millage for their own use and benefit.
The trial court denied plaintiffs motion for summary disposition under MCR 2.116(C)(10). The trial court granted summary disposition in favor of defendants under MCR 2.116(C)(4) on the grounds that the case was within the exclusive jurisdiction of the Michigan Tax Tribunal. In the alternative, the trial court granted summary disposition in favor of the county road commission under MCR 2.116(C)(8) on the grounds that plaintiff failed to state a claim on which relief could be granted. Specifically, the trial court determined that the county road commission was not a proper party to the action because, contrary to plaintiffs assertion, the county road commission did not have a duty to enter into a distribution agreement. Rather, the county road commission only had a duty to spend funds in accordance with the purpose for which those funds were distributed to it. Additionally, the trial court disagreed with plaintiffs reading of MCL 224.20b and found that the monies were distributed in accordance with the statute.
TAX TRIBUNAL JURISDICTION
Plaintiff argues that the trial court erred in granting summary disposition in favor of defendants on jurisdictional grounds. We agree. We review de novo a trial court’s grant or denial of a motion for summary disposition. Kroon-Harris v Michigan, 267 Mich App 353, 357; 704 NW2d 740 (2005). “Jurisdictional questions under MCR 2.116(C)(4) are questions of law that are also reviewed de novo.” Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733 (2001). When reviewing a motion under MCR 2.116(C)(4), we must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law or whether the affidavits and other proofs show there was no genuine issue of material fact. Bock v Gen Motors Corp, 247 Mich App 705, 710; 637 NW2d 825 (2001).
MCL 600.605 provides that “[c]ircuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.” MCL 205.731 provides:
The [tax] tribunal’s exclusive and original jurisdiction shall be:
(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.
(b) A proceeding for refund or redetermination of a tax under the property tax laws.
As used in the Tax Tribunal Act, “ ‘[a]gency’ means a board, official, or administrative agency who is empowered to make a decision, finding, ruling, assessment, determination, or order that is subject to review under the jurisdiction of the tribunal or who has collected a tax for which refund is claimed.” MCL 205.703(a).
In Highland-Howell Dev Co, LLC v Marion Twp, 469 Mich 673; 677 NW2d 810 (2004), our Supreme Court discussed at length two seminal cases addressing the scope of the Tax Tribunal’s jurisdiction: Wikman v City of Novi, 413 Mich 617; 322 NW2d 103 (1982), and Romulus City Treasurer v Wayne Co Drain Comm’r, 413 Mich 728; 322 NW2d 152 (1982).
In Wikman, the plaintiffs sought injunctive relief in the circuit court, alleging that the special assessments imposed on them had been determined in an arbitrary and capricious manner. This Court ruled, inter alia, that the challenge to the special assessments was within the exclusive jurisdiction of the Tax Tribunal because the action was one “seeking direct review of the governmental unit’s decision concerning a special assessment for a public improvement.” Wikman at 626.
Unlike the direct challenge to the special assessment in Wikman, the plaintiffs in Romulus City Treasurer filed a constructive fraud claim in the circuit court, challenging the drain commissioner’s use of funds collected through special assessments. This Court held that the circuit court had jurisdiction to hear the case because the question was whether the drain commissioner could pay administrative costs with special assessment funds and, therefore, this question was outside the exclusive jurisdiction of the Tax Tribunal.
In reaching the decision in Romulus City Treasurer, this Court noted that MCL 205.721 designates the Tax Tribunal as a “ ‘quasi-judicial agency’ ” comprised of seven members; only two must be attorneys with experience either in property tax matters or in the discharge of a judicial or quasi-judicial office. Romulus City Treasurer at 737. In addition,
“[o]ne member must be a certified assessor; one, an experienced professional real estate appraiser; and one, a certified public accountant with experience in state-local tax matters. Not more than three of the seven members are to be members of any one professional discipline and persons who are not members of any of the enumerated disciplines are required to have experience in state or local tax matters.
“The expertise of the tribunal members can be seen to relate primarily to questions concerning the factual underpinnings of taxes. [Id.Y
This Court also noted that the Tax Tribunal’s membership is qualified to resolve disputes concerning assessments, valuations, rates, allocation, and equalization, as well as to determine whether special assessments are levied according to the benefits received. Id. [Highland-Howell, supra at 677-678.]
After discussing these differences between the cases, the Court stated:
While the Tax Tribunal’s membership is particularly competent to resolve disputes related to the basis for and amounts of taxes, its membership is not qualified to resolve common-law tort or contract claims. Clearly, this supports our conclusion that the Legislature did not intend the Tax Tribunal’s exclusive jurisdiction to encompass matters outside the realm of those tax matters specified in the statute. [Id. at 678.]
In Romulus City Treasurer, supra at 736, the plaintiffs alleged that the defendant drain commissioner collected monies through special assessment procedures and used it to pay his administrative expenses rather than placing it in the revolving drain fund, that administrative expenses were not an enumerated use of the funds, and that funds currently held in escrow were earmarked for future administrative expenses. The plaintiffs alleged that these actions constituted a constructive fraud. Id. Our Supreme Court distinguished these claims from those of the plaintiffs in Wikman, who challenged the validity of a special assessment, stating:
The focus of the present claim concerns not the factual underpinnings of the pertinent assessments, but rather how funds collected pursuant to the special assessment laws may be spent.. ..
... Although the tribunal, in making its determinations, will make conclusions of law,-MCL 205.751; MSA 7.650(51), the matters within its jurisdiction under MCL 205.731; MSA 7.650(31) most clearly relate to the basis for a tax, and much less clearly to the proper uses which may be made of the funds once collected. Questions concerning how the funds collected may be expended do not appear to be implicated in disputes related to assessments, valuations, rates, allocation and equalization....
. . . Because questions as to the lawful expenditure of funds do not arise within the other matters within the tribunal’s jurisdiction, and because the tribunal’s expertise relates much more directly to other questions concerning the lawfulness of challenged special assessments, we cannot assume that the Legislature intended to divest the circuit court of its equitable jurisdiction to grant declaratory and injunctive relief in matters involving the appropriate use of funds collected under the guise of special assessment laws. [Id. at 736-739.]
The present case falls in line with Romulus City Treasurer. Plaintiff is not challenging the validity of the road millage levy. Plaintiffs allegation is that the county misallocated the funds generated from the road millage. Plaintiffs contention is that the board of county commissioners and the treasurer improperly gave the funds resulting from the millage vote to the county road commission, contrary to what plaintiff contends are the dictates of MCL 224.20b. Plaintiff does not challenge the “factual underpinnings” of the road millage levied.
Therefore, we conclude that whether defendants were required to allocate the road millage funds according to the formula in MCL 224.20b(2) is not a question “relating to assessment, valuation, rates, special assessments, allocation, or equalization,” or involving the “refund or redetermination of a tax,” under the property tax laws, within the meaning of MCL 205.731. The trial court erred in concluding that the Tax Tribunal has exclusive jurisdiction over this case.
COUNTY ROAD COMMISSION AS A PARTY
Plaintiff next argues that the trial court erred in granting summary disposition in favor of the county road commission under MCR 2.116(C)(8) on the grounds that the county road commission was not a proper party to this action. We disagree. We review de novo a trial court’s grant or denial of a motion for summary disposition under MCR 2.116(C)(8). Johnson-Mclntosh v Detroit, 266 Mich App 318, 322; 701 NW2d 179 (2005). MCR 2.116(C)(8) tests the legal sufficiency of the pleadings standing alone, and the motion must be granted if no factual development could justify the plaintiffs claim for relief. Johnson-Mclntosh, supra at 322.
Plaintiff maintains that the county road commission is a proper party to the present case because it owed plaintiff a duty under MCL 224.20b. Plaintiff contends that, because the county road commission’s exclusive authority to spend the road millage revenues arises under MCL 224.20b, it had a duty to ensure that it spent those revenues in compliance with the statute. However, plaintiffs claims are based on its allegation that the road millage revenues were misallocated to the road commission. As quoted below, MCL 224.20b(l) authorizes the “board of commissioners of any county by proper resolution” to submit to the county’s electorate the question of a tax levy for highway, road, and street purposes. MCL 224.20b(2) requires that the revenues derived from the tax levy be allocated and distributed by the county treasurer. Although the county road commission received the revenues, it had no authority to allocate and distribute them and, thus, no obligation to ensure that the statutory formula was followed. Plaintiff concedes that “MCL 224.20b plainly states that it is the role of the County and its treasurer to make the distribution in the manner provided.” Because the county road commission had no duty to distribute the road millage, it is not a proper party to this lawsuit and the trial court properly granted summary disposition in favor of the county road commission on that basis.
MCL 224.20b
Plaintiff next argues that the trial court erred in ruling that it was not entitled to a return of proceeds from the road millage levied by the county under MCL 224.20b as a matter of law. We agree. We review de novo a trial court’s decision on a motion for summary disposition under MCR 2.116(0(10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Further, the decision at issue here is strictly one of statutory interpretation, which we also review de novo. Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). In reviewing questions of statutory construction, our purpose is to discern and give effect to the intent of the Legislature. We begin by examining the plain language of the statute, affording the words their plain and ordinary meaning. If that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed and no further judicial construction is required or permitted— the statute must be enforced as written. Id.
MCL 224.20b provides:
(1) Notwithstanding any other provision of this act, the board of commissioners of any county by proper resolution may submit to the electorate of the county at any general or special election the question of a tax levy for highway, road and street purposes or for 1 or more specific highway, road or street purposes, including but not limited to bridges, as may be specified by the board.
(2) Unless otherwise agreed by the governing bodies of the cities and villages and the board of county road commissioners the revenues derived from the tax levy authorized by this section shall be allocated and distributed by the county treasurer as follows:
(a) To the county road fund:
(i) A percentage of the total revenues equal to the proportion that the state equalized valuation of the unincorporated area of the county bears to the total state equalized value of the county.
(ii) A percentage of the remainder of the revenues equal to the proportion that the county primary road mileage within cities and villages bears to the total of the city and village major street mileage in the county plus the county primary road mileage -within cities and villages in the county. The mileages to be used are the most recent mileages as certified by the state highway commission.
(b) The remaining revenues shall be distributed to the cities and villages in the proportion that the state equalized valuation of each bears to the total state equalized valuation of the incorporated areas of the county.
(3) The revenues allocated to the cities and villages shall be expended exclusively for highway, road and street purposes. The revenues allocated to the county road fund shall be expended by the board of county road commissioners exclusively for highway, road and street purposes.
(4) Notwithstanding the provisions of section 22 of this chapter, section 7 of Act No. 156 of the Public Acts of 1851, as amended, being section 46.7 of the Compiled Laws of 1948, or section 1 of Act No. 28 of the Public Acts of 1911, being section 141.71 of the Compiled Laws of 1948, a board of county commissioners shall not submit to the electorate of the county the question of a tax levy for any highway, road or street purpose, including but not limited to bridges, nor submit the question of borrowing money for any such purpose, to be voted upon at any election held on or after September 1,1971 unless the revenues or proceeds are allocated and distributed in the same manner as the revenues derived from a tax levy authorized by this section.
Plaintiff argues that under subsection 2, it is entitled to a portion of the road millage levied by the county and distributed to the county road commission from 1978 to the present. Defendants argue that, under plaintiffs interpretation of the statute, the county would be prevented from proposing a levy for “specific highway, road or street purposes,” even though such a levy is specifically authorized by subsection 1. They contend that requiring a levy such as the one in this case, approved specifically for primary county roads and local county roads, to be distributed to cities and villages that contain no such roads would violate the statute’s implicit directive that the proceeds of a levy approved by the voters must be spent in the manner approved by the voters. They argue that plaintiffs interpretation of the statute renders subsection 1 nugatory, in contravention of well-established principles. Bageris v Brandon Twp, 264 Mich App 156, 162; 691 NW2d 459 (2004).
However, defendants’ interpretation of the statute certainly renders nugatory the mandate of subsection 2 regarding how “revenues derived from the tax levy authorized by this section shall be allocated and distributed . . ..” We construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature. In other words, we must resolve the apparent conflict between the two subsections at issue here in a manner that will give effect to both. Macomb Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247 (2001). We conclude that this can easily be accomplished because subsection 2 itself provides the manner by which its mandatory allocation and distribution formula can be avoided. That is specifically allowed if “agreed by the governing bodies of the cities and villages and the board of county road commissioners . . . MCL 224.20b(2). Thus, pursuant to subsection 1, a county board of commissioners may submit a specific highway tax levy to the voters for approval and, if approved, spend the proceeds of the levy for that specific purpose without making the allocations and distributions otherwise required by subsection 2 if the board of commissioners has previously secured an agreement to that effect from the governing boards of the cities and villages within the county.
We recognize defendants’ argument that this is a cumbersome and difficult procedure for raising and spending money on specific road projects. Nonetheless, we conclude that it is the only approach authorized by the statute, giving all of its subsections effect. We cannot rewrite the statute in light of defendants’ policy arguments. Maier v Gen Tel Co of Michigan, 247 Mich App 655, 664-665; 637 NW2d 263 (2001).
We reverse the trial court’s denial of plaintiffs motion for summary disposition on the issue whether defendants violated the statute. As previously discussed, we also reverse the trial court’s determination that the Tax Tribunal has exclusive jurisdiction over this case, and we affirm the determination that the county road commission is not properly a defendant in this action. Although the parties make passing reference to other defenses defendants may have against plaintiffs claim, including waiver, laches, and estoppel, those matters were not addressed by the trial court and are not properly presented for review on appeal. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs shall be assessed, public questions having been presented.
Helen Makay was named a defendant in her official capacity as the Van Burén County Treasurer. Her legal interests are identical to those of the board of commissioners on this appeal, and we will not refer to her separately.
The board of commissioners and the treasurer responded to plaintiffs motion for summary disposition, but did not join the county road commission in its motion for summary disposition. However, in its order granting summary disposition to the county road commission pursuant to MCR 2.116(C)(4), the trial court implied that its decision applied to these parties as well. The trial court stated, in pertinent part, that “this Court lacks subject matter jurisdiction over the claims raised in Plaintiffs Complaint” and that “[t]his Order disposes of all of Plaintiffs claims as well as the last pending claim and closes the case.” We believe that the trial court’s decision applied to all defendants in the present case.
Although the trial court found that it did not have jurisdiction, as discussed above, it nonetheless articulated conclusions on the other issues now before us on appeal.
We do not disagree with defendants’ argument that using revenues approved by the voters for a specific purpose for some other purpose would be unlawful.
The opening provision of subsection 1, specifying that it applies “[notwithstanding any other provision of this act,” does nothing to resolve the apparent conflict. Subsection 1 does not address the proper allocation and distribution of revenues raised by a tax levy; it only authorizes the submission of a tax levy question to the voters for approval. Subsection 2 does nothing to diminish the authority granted by subsection 1; it only specifies how levied revenues are to be allocated and distributed without addressing in any manner the submission of a tax levy question for voter approval. The “notwithstanding” provision of subsection 1 apparently refers to other sections of the general highway law that might otherwise prevent submission of a tax levy question to the voters. See, e.g., MCL 224.20 and 224.20a.
We note that this conclusion is consistent with subsection 4 of the statute, which reiterates that a tax levy question shall not be submitted to the electorate unless the revenues raised as a result are allocated and distributed as authorized by the section. MCL 224.20b(4). | [
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Per CURIAM.
Defendant appeals by right the trial court’s order granting summary disposition in favor of plaintiff in this contract action involving a covenant not to compete. We affirm.
Defendant Christopher Borgiel, M.D., began working for plaintiff on October 15, 2001, and signed an employment contract that provided in relevant part:
1. Employment for professional services. The Employer hereby employs the Employee and the employee accepts such employment as a physician to perform services at Greater Yale Medical Clinic and Mitchell Medical Center.
* *
7. Restricted Covenant. The employee shall agree not to embark on medical practice within 7 (seven) miles of either office for at least one (1) year after this Employer-Employee relationship has ended. The employee shall reimburse the corporation $40,000.00 if these terms are breached.
From October 2001 through July 2003, defendant worked almost exclusively at the Greater Yale Medical Clinic in Yale, Michigan; he also worked approximately six hours during the 20-month employment period at the Mitchell Medical Center in Fort Huron, Michigan. On June 18, 2003, defendant submitted a letter of resignation advising plaintiff that he was terminating his employment on July 2, 2003. Further, he stated his intent to work for Physician’s Health Care Network in Fort Gratiot, which is located within seven miles of the Mitchell Medical Center.
Plaintiff filed a complaint alleging that defendant was in violation of the restrictive covenant and requested that defendant pay liquidated damages in the amount of $40,000 for breach of contract. Defendant filed a counterclaim for a declaratory judgment that the restrictive covenant and liquidated damages clause were void and unenforceable. Plaintiff filed a motion for summary disposition pursuant to MCR 2.116(C)(10) on its claim for breach of contract and defendant’s complaint for declaratory judgment. Defendant filed a cross-motion for summary disposition pursuant to MCR 2.116(I)(2). The circuit court granted plaintiffs motion, finding that the restrictive covenant was enforceable, that defendant violated the covenant by working within seven miles of plaintiffs Port Huron office, and that the liquidated damages clause was enforceable. The court subsequently issued an order awarding plaintiff $40,000, plus interest, offset by $3,300 that plaintiff still owed defendant. The court granted defendant’s motion to stay enforcement of the judgment pending appeal.
Defendant argues on appeal that the covenant did not restrict him from practicing medicine within seven miles of the Mitchell Medical Center, so he did not violate it. We disagree.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the complaint. Maiden, supra at 120. The moving party must specifically identify the matters that it believes have no disputed factual issues. Id.\ MCR 2.116(G)(4). The moving party must support its position with affidavits, depositions, admissions, or other documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996); MCR 2.116(G)(5). Once the moving party has met this burden, the burden shifts to the opposing party to show that a genuine issue of material fact exists. Quinto, supra at 362. When the burden of proof at trial falls on the party opposing the motion, that party may not rest on mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts to show that there is a genuine issue for trial. Id.-, Maiden, supra at 121.
The construction and interpretation of a contract present questions of law that we review de novo. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190 (1999). The goal of contract construction is to determine and enforce the parties’ intent on the basis of the plain language of the contract itself. Old Kent Bank v Sobczak, 243 Mich App 57, 63; 620 NW2d 663 (2000). “It is axiomatic that if a word or phrase is unambiguous and no reasonable person could differ with respect to application of the term or phrase to undisputed material facts, then the court should grant summary disposition to the proper party pursuant to MCR 2.116(0(10).” Henderson, supra at 353. “Conversely, if reasonable minds could disagree about the conclusions to be drawn from the facts, a question for the factfinder exists.” Id.
Here, the contract unambiguously prohibited defendant from engaging in medical practice within seven miles of either the Yale Medical Clinic or the Mitchell Medical Center. Defendant’s effort to read the covenant to prohibit the practice of medicine within seven miles of a clinic where he actually provided the majority of his services is unconvincing. The clause clearly prohibits practice within seven miles of either clinic, without regard to where the services were performed. Moreover, defendant readily admits that he provided limited services at the Mitchell Medical Center, and defendant does not dispute that his new position is within seven miles of the Mitchell Medical Center. Thus, the trial court did not err when it concluded that the contract was unambiguous and defendant had breached it.
Next, defendant argues that the covenant not to compete is unreasonable and violates the Michigan Antitrust Reform Act (MARA), MCL 445.771 et seq. We disagree.
“A contract.. . between 2 or more persons in restraint of, or to monopolize, trade or commerce in a relevant market is unlawful.” MCL 445.772. But, agreements not to compete are authorized by § 4a(l) of the MARA, MCL 445.774a(l), which provides:
An employer may obtain from an employee an agreement or covenant which protects an employer’s reasonable competitive business interests and expressly prohibits an employee from engaging in employment or a line of business after termination of employment if the agreement or covenant is reasonable as to its duration, geographical area, and the type of employment or line of business. To the extent any such agreement or covenant is found to be unreasonable in any respect, a court may limit the agreement in order to render it reasonable in light of the circumstances in which it was made and specifically enforce the agreement as limited.
This Court recently concluded that § 4a(l) represents a codification of the common-law rule “that the enforceability of noncompetition agreements depends on their reasonableness.” Bristol Window and Door, Inc v Hoogenstyn, 250 Mich App 478, 495; 650 NW2d 670 (2002).
At common law, a covenant not to compete was enforceable if it met four standards established by Hubbard v Miller, 27 Mich 15, 19; 15 Am Rep 153 (1873). First, the covenant must be for an honest and just purpose. Second, it must be established for the protection of the legitimate' interest of the party in whose favor it is imposed. Third, it must be reasonable as between the parties to the contract. Finally, it must not be specially injurious to the public. Id. [Cardiology Assoc of Southwestern Michigan, PC v Zencka, 155 Mich App 632, 636; 400 NW2d 606 (1985).]
Thus, a restrictive covenant must protect an employer’s reasonable competitive business interests, but its protection in terms of duration, geographical scope, and the type of employment or line of business must be reasonable. Additionally, a restrictive covenant must be reasonable as between the parties, and it must not be specially injurious to the public.
Because the prohibition on all competition is in restraint of trade, an employer’s business interest justifying a restrictive covenant must be greater than merely preventing competition. United Rentals (North America), Inc v Keizer, 202 F Supp 2d 727, 740 (WD Mich, 2002). To be reasonable in relation to an employer’s competitive business interest, a restrictive covenant must protect against the employee’s gaining some unfair advantage in competition with the employer, but not prohibit the employee from using general knowledge or skill. Id.; Follmer, Rudzewicz & Co, PC v Kosco, 420 Mich 394, 402-404, 362 NW2d 676 (1984). In a medical setting, a restrictive covenant can protect against unfair competition by preventing the loss of patients to departing physicians, protecting an employer’s investment in specialized training of a physician, or protecting an employer’s confidential busi ness information or patient lists. Community Hosp Group, Inc v More, 183 NJ 36, 58; 869 A 2d 884 (2005); Berg, Judicial enforcement of covenants not to compete between physicians: Protecting doctors’ interests at patients’ expense, 45 Rutgers L R 1, 17-18 (1992).
We agree with defendant that material issues of fact remain regarding whether the covenant was protecting plaintiffs confidential patient lists and business information or plaintiffs investment in defendant’s training. The lower court record is contradictory regarding whether defendant had access to confidential business information or patient lists. Plaintiff suggested that defendant had access to confidential information; however, defendant averred that during the course of his employment he was “unaware of potentially confidential information concerning operation of St. Clair Medical as a business such as patient lists, price lists, or the existence or content of any other possibly confidential business information.” Accordingly, there are issues of disputed fact regarding whether plaintiff was protecting itself from defendant’s use of confidential information or patient lists. Plaintiff also asserted that it “expended substantial resources in training [defendant] to be a successful practitioner, including providing casual advice from other more experienced physicians, access to professional training and seminars, and working knowledge of how a successful practice is run on a day-to-day basis.” In Follmer, our Supreme Court concluded that “ ‘general knowledge, skill, or facility acquired through training or experience . . . acquired or developed during the employment does not, by itself, give the employer a sufficient interest to support a restraining covenant....’” Follmer, supra at 402 n 4, quoting Blake, Employment agreements not to compete, 73 Harv L R 625, 652 (1960). Here, plaintiff has failed to offer any evidence indicating that defendant benefited from specialized training that he could then use to unfairly compete with plaintiff. Accordingly, we also conclude that there are disputed issues of fact regarding whether plaintiff provided defendant anything other than general training and experience.
We conclude, nevertheless, that the restrictive covenant was protecting plaintiffs competitive business interest in retaining patients, that it provided plaintiff with time to regain goodwill with its patients, and that it prevented defendant from using patient contacts gained during the course of his employment to unfair advantage in competition with plaintiff. A physician who establishes patient contacts and relationships as the result of the goodwill of his employer’s medical practice is in a position to unfairly appropriate that goodwill and thus unfairly compete with a former employer upon departure. See Weber v Tillman, 259 Kan 457, 467-469; 913 P2d 84 (1996); Berg, supra at 17-18. This risk of unfair competition in this context does not result from access to patient lists, but from the risk that patients will seek to follow a departing physician. Where the physician-patient relationship was facilitated by a physician’s association with his employer or resulted from advertising dollars expended by that employer, a physician can unfairly take advantage of the employer’s investments in advertising and goodwill when competing with the former employer to retain patients. Here, plaintiff operated clinics located in the cities of Yale, St. Clair, and Port Huron, which drew patients residing throughout St. Clair County. Plaintiff expended funds to advertise its services in these cities. Defendant practiced medicine for plaintiff for approximately 20 months and took advantage of plaintiffs goodwill in the community and advertising expenditures to attract patients. We conclude that the covenant protected plaintiff from unfair competition by defen dant and therefore protected a reasonable competitive business interest as required by MCL 445.774a(l).
Defendant next argues that the restrictive covenant is unenforceable because the geographic restriction is unreasonable in relation to plaintiffs competitive interest, i.e., defendant provided the overwhelming majority of his services at the clinic that was more than twenty miles from the location of his new employment. We conclude that the restrictive covenant is modest in geographical scope and is not unreasonable in relation to plaintiffs competitive business interests. The principal shareholder and president of plaintiff corporation stated, “When [defendant] was hired by St. Clair Medical, it was anticipated that he would see patients at both the Greater Yale Medical Clinic and the Mitchell Medical Center.” Although defendant worked primarily at one location, there is no evidence that his patients were only drawn from within seven miles of that location. Plaintiffs clinics drew patients residing throughout St. Clair County. Indeed, since defendant’s departure, some patients previously scheduled for plaintiffs Yale office have visited plaintiffs Port Huron office. We conclude that a prohibition on practice extending for seven miles around two of plaintiffs offices where it was anticipated that defendant would work is not unreasonable and protects plaintiffs interest in retaining patient goodwill.
Defendant also argues that the covenant is unreasonable in light of the Principles of Medical Ethics issued by the American Medical Association, which provide:
Covenants-not-to-compete restrict competition, disrupt continuity of care, and potentially deprive the public of medical services. The Council on Ethical and Judicial Affairs discourages any agreement which restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of an employ ment, partnership, or corporate agreement. Restrictive covenants are unethical if they are excessive in geographic scope or duration in the circumstances presented, or if they fail to make reasonable accommodation of patients’ choice of physician. [AMA, E-9.02: Restrictive Covenants and the Practice of Medicine.]
We conclude that this standard merely reflects the common-law rule of reasonableness and states that restrictive covenants are unethical only if they are excessive in geographical scope or duration. As previously concluded, this restrictive covenant is not excessive in geographical scope. Defendant does not challenge its duration. Moreover, patients’ choice of physician is protected by the modest geographical scope of the covenant and the liquidated damages clause. Finally, this modest geographical restriction is not specially injurious to the public. Cf. Community Hosp, supra at 61-62 (concluding that a restrictive covenant covering a 30-mile radius is injurious to the public where it would prohibit a neurosurgeon from practicing in an area were there was a shortage of neurosurgeons). Here, defendant can continue patient relationships by merely practicing outside a modest geographic restriction or by practicing within the restricted area and simply paying the liquidated damages provided for in the contract.
Next, defendant argues that the liquidated damages clause bears no reasonable relationship to the actual damages plaintiff suffered and is an unconscionable windfall. We disagree. The issue whether a liquidated damages provision is valid and enforceable is a matter of law that this Court reviews de novo. UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 508; 579 NW2d 411 (1998). A liquidated damages provision is simply an agreement by the parties fixing the amount of damages in the event of a breach and is enforceable if the amount is reasonable with relation to the possible injury suffered and not unconscionable or excessive. Id. Such a provision is particularly appropriate “where actual damages are uncertain and difficult to ascertain or are of a purely speculative nature. . . .” Papo v Aglo Restaurants of San Jose, Inc, 149 Mich App 285, 294; 386 NW2d 177 (1986). Here, we conclude that the amount of damages is reasonable in relation to the possible injury suffered. Plaintiff stated that the clause was included in the contract because damages associated with a physician’s departure are difficult to calculate. Accordingly, a liquidated damages provision is particularly appropriate. The $40,000 in liquidated damages does not strike this Court as unconscionable or excessive in relation to potential patient loss; consequently, the trial court did not err in enforcing the parties’ agreement.
Next, defendant argues that summary disposition was prematurely granted. We disagree. A motion for summary disposition under MCR 2.116(0(10) is premature if discovery has not closed, unless there is no fair likelihood that further discovery would yield support for the nonmoving party’s position. Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 540; 687 NW2d 143 (2004). A party opposing summary disposition cannot simply state that summary disposition is premature without identifying a disputed issue and supporting that issue with independent evidence. Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511, 519; 575 NW2d 36 (1997). Here, defendant did no more than state the position that discovery should be extended if the trial court disagreed with him, but failed to identify any specific facts or independent evidence that he anticipated discovering to support his position. Accordingly, we conclude that summary disposition was not prematurely granted.
Finally, defendant argues that the trial court inappropriately premised its conclusion on this issue on erroneous findings of fact. Defendant’s arguments in this regard merely challenge conclusions of law already addressed by this Court and, thus, have no merit.
We affirm. | [
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Per CURIAM.
Defendant was convicted by a jury of possession of less than 25 grams of heroin, MCL 333.7403(2)(a)(u). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 30 to 180 months’ imprisonment, to be served consecutively to an earlier sentence from which he was on parole and without jail credit. Defendant appeals as of right. We affirm.
Defendant’s presentence investigation report recommended a prison sentence “with credit for 159 days served.” Defendant’s sole issue on appeal is whether the trial court erred in declining to apply that time against his sentence for the instant conviction.
Consecutive sentences may be imposed only when specifically authorized by statute. People v Brown, 220 Mich App 680, 682; 560 NW2d 80 (1996). Statutory interpretation is a question of law calling for review de novo. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997). MCL 769.11b provides that if a sentencing court has before it a convict who has served time in jail before sentencing because he or she could not afford or was denied bond, the court must credit that person with time served. MCL 768.7a(2) directs that sentences of persons convicted of felonies committed while on parole for earlier offenses “begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.” This appeal concerns the interplay between these two statutes.
“When a parolee is arrested for a new criminal offense, he is held on a parole detainer until he is convicted of that offense, and he is not entitled to credit for time served in jail on the sentence for the new offense.” People v Seiders, 262 Mich App 702, 705; 686 NW2d 821 (2004). Instead, a parole detainee convicted of a new offense is entitled to have jail credit applied exclusively to the sentence from which parole was granted. Id. Credit is not available to a parole detainee for time spent in jail attendant to a new offense because “bond is neither set nor denied when a defendant is held in jail on a parole detainer.” Id. at 707.
Defendant’s reliance on Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569; 548 NW2d 900 (1996), is misplaced. That case concerned the legislative desire to treat parolees who commit new crimes the same as prisoners or escapees who do so. Id. at 580. At issue was when the first sentence should end and the second should begin, not how jail credit was to be applied. See id. at 583-584.
There is no conflict between Seiders and Wayne Co Prosecutor. Seiders is binding on this Court. MCR 7.215(J)(1). We reject defendant’s claim of error.
Affirmed.
According to the presentence investigation report, the earlier offense was second-degree home invasion, MCL 750.110a(3). | [
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PER CURIAM.
Plaintiff village of Oxford appeals as of right a circuit court order granting the motion by defendant Nathan Grove Family, LLC, that challenged the necessity of the taking in this condemnation case. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
The parties and the trial court erred in treating defendant’s motion as one for summary disposition pursuant to MCR 2.116(0(10). The purpose of such a motion is to determine if a genuine issue of fact exists for trial. Mario Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich App 309, 320-321; 575 NW2d 324 (1998), mod on other grounds by Hart v Farmers Ins Exch, 461 Mich 1 (1999). However, a challenge to necessity is to be determined by the court, not by a jury. City of Kalamazoo v KTS Industries, Inc, 263 Mich App 23, 40-41; 687 NW2d 319 (2004). The court is not to determine whether a genuine issue of fact exists for trial, but is to decide the issue of necessity at a hearing held for that purpose. MCL 213.56(3).
The trial court determined that plaintiff had the statutory authority to condemn private property for public parking, MCL 213.23. If a public corporation has authority to condemn property, the proposed taking must not only advance one of the three objectives enumerated in MCL 213.23, “but it must also be ‘necessary’ to that end.” Wayne Co v Hathcock, 471 Mich 445, 463; 684 NW2d 765 (2004). “[T]he determination of necessity is left not to the courts but to the public agency, which in this case is the [village].” City of Novi v Robert Adell Children’s Funded Trust, 473 Mich 242, 253; 701 NW2d 144 (2005). A public agency’s determination of necessity “is binding on the court in the absence of a showing of fraud, error of law, or abuse of discretion.” MCL 213.56(2). Thus, the court is to determine whether fraud, error, or abuse of discretion has been shown. Novi, supra at 253. The party opposing the condemnation bears the burden of proving fraud, error, or abuse of discretion. Hathcock, supra at 466.
The trial court in this case determined that defendant had shown an abuse of discretion. “An abuse of discretion occurs when an unprejudiced person considering the facts upon which the decision was made would say that there was no justification or excuse for the decision.” Novi, supra at 254. The trial court’s factual findings are reviewed for clear error. Id. at 249. “A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.” In re Forfeiture of $19,250,209 Mich App 20, 29; 530 NW2d 759 (1995). The trial court’s legal conclusions are reviewed de novo. Novi, supra at 249.
By virtue of its resolution, plaintiff determined that the taking was necessary. The parties seemed to agree that parking in general is necessary in any downtown area, and even defendant’s expert suggested that defendant’s property was a main source of parking space in the northeast quadrant, having a peak usage of 75 percent. Certainly if defendant did not intend to operate a parking lot, thereby depriving plaintiff of a significant portion of the available parking in the area, it could be argued that the taking was necessary. However, defendant intended to maintain the property for use as a parking lot. The dispute centered on whether parking had to be free. Plaintiffs expert’s opinions about free parking apply equally to paid parking. It is the availability of parking to serve citizens seeking safe and convenient access to public and private facilities in the area that is crucial to the continued vitality of the area, and paid parking fulfills that function as well as free parking. Defendant showed that plaintiffs determination that paid parking was detrimental to the public was based on pure speculation. No study or other objective evidence showed that citizens would drive around neighborhoods or crowd into other areas of the village to avoid paid parking, or would cease patronizing businesses in the area altogether if parking were not free. The characterization of the lot as a “choke-point” seemed to indicate that it is in a central location accessible by several routes leading into the area. However, because it is utilized for parking rather than through traffic, it is unclear how closing it to all but paying customers would increase traffic congestion or interfere with emergency vehicles’ access to the area. Given that parking was a necessity, that defendant intended to provide parking, and that there was no basis in fact for plaintiffs conclusion that parking had to be free, the trial court did not err in concluding that plaintiff abused its discretion in determining that the taking was necessary.
Affirmed. | [
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This Court held defendant’s motion for reconsideration in abeyance pending final action by the Alabama Supreme Court. The Alabama Supreme Court ruled that the Tuscaloosa County Circuit Corut lacks jurisdiction over the custody, child support, and visitation issues concerning the children of the parties. Accordingly, this Court orders that the motion for reconsideration is granted, and this Court’s opinion issued June 25,2002, is hereby vacated. A new opinion will be issued.
Griffin, J., did not participate. | [
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Campbell, C. J.
This case presents, as we think, but one important question, and that is whether surviving partners who sell goods which belong to their firm can recover for their price in their own names, without joining the representatives of the deceased partner. The principle is well settled that the entire legal estate vests in the survivors, and no one else can be regarded as having any legal interest in the assets. Barry v. Briggs, 22 Mich., 201; Pfeffer v. Steiner, 27 Mich., 537; Merritt v. Dickey, 38 Mich., 41.
The court erred in holding that the survivors could not sue for goods sold by them until they had an assignment or had formally, organized a new firm.
The other questions are not very distinctly presented and need not be considered. There was evidence tending to show liability which the jury could consider.
Judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Marston, J.
Plaintiff brought trover for the conversion of certain wheat. April 12th, 1876, plaintiff and defendant Cronkite entered into a written agreement in reference to the cultivation by Cronkite • of a certain farm then owned by plaintiff. This agreement was to continue in force until April, 1879, and under it, amongst other things, Cronkite was to properly cultivate the soil of all the cleared land, and “sow, harvest, thresh and haul to market such part of the roots, hay, seeds and grain, as shall be raised on the farm of the party of the first part, as such party may from time to time direct.’’ It was also provided that neither party should be allowed to dispose of any undivided property owned in common by them without the consent of the other being first obtained.
In this case the controversy arises on account of the disposition made by defendants of certain wheat, contrary, it is claimed, to the following provisions of the agreement :
“ There now being forty acres of wheat on the ground on said farm, the party of the second part (Cronkite) shall, and he hereby agrees to harvest, thresh, and put the product thereof in market, and pay the party of the first part for one-half of the cost of the seed sown for said wheat, amounting to $40.50, and shall leave on the ground sown, in the same condition, an equal number of acres when his term under this agreement shall expire, for the use and .benefit of the party of the first part. As compensation for the harvesting, threshing and marketing said wheat as aforesaid, the party of the second part shall be entitled to, and have, an equal one-half part of all the proceeds of said wheat now on the ground aforesaid, when the same shall be sold.”
The plaintiff remained in possession of the farm. The wheat grown upon this forty acres was harvested and threshed. It appeared that the plaintiff was at home when the threshing commenced, and until nearly its completion. That after he went away defendants commenced drawing the wheat away from the machine as the same was threshed, and also taking some from the granary where it had been put the day previous. A portion was taken to the granary of defendant Foote and a portion of it to market and sold. There was evidence tending to show that defendants were told, when taking the wheat away, that they had no right so to do' under the contract without the knowledge or consent of plaintiff; that Cronkite replied that he was not going by the contract any more, that if plaintiff was there he (Cronkite) would not be permitted to take the wheat, and that he was going to take it while the plaintiff was away.
The court charged the jury in substance that Cronkite was to harvest the forty acres of wheat, thresh it and put the product thereof in market, and that he had control of the wheat for such purposes; that he was the judge as to the proper time of harvesting, threshing and marketing; that he might store the wheat where he pleased, and draw it to what market he pleased; that while the intention of the parties may have been that it should be stored on the farm, yet such would not be binding upon Mr. Cronkite; that he (Cronkite) had a right to manage the harvesting, threshing and marketing in his own way, liable however for bad management, and that aside from being responsible in damages for bad management, he had perfect and complete control without any interference or hindrance from the plaintiff.
We need not determine whether Cronkite had full control and the right to manage the harvesting and threshing in his own way, as charged by the court, because such questions do not arise in this case. We are clearly of opinion that in so far as the court charged the jury that Cronkite had the right to store and sell the wheat when and where he pleased, without interference or hindrance from plaintiff, there was error. We think this clause of the contract, either standing alone or viewed in connection with the other provisions, indicates and expresses clearly a contrary intention. The fair interpretation of this contract required Cronkite to deliver the wheat in market, but he had no authority to sell the same, and any attempt on his part to dispose of it, either by storing it in the granary of a third party or by a sale thereof, without the consent of Mr. Baylis, would be a conversion thereof. Indeed the contract in its several provisions seems to have been carefully drawn so as to give Mr. Baylis control of the sale of the products of the farm. It was not a case of leasing upon shares, yith the rights usually pertaining thereto, and the contract will not bear such a construction.
Evidence was introduce,d on the part of defendants that the wheat not taken away was destroyed by fire Aug. 21, 1876, plaintiff’s barn having been burned on that day; that the barn and wheat therein were insured, and that plaintiff received the insurance on the same. We are at a loss to discover how this evidence in this action could have been admissible for any purpose, — certainly not as an offset, nor for the purpose of showing that plaintiff had in this way received one half the proceeds of the entire crop of wheat, as such would not be a defense in this action. See Perrott v. Shearer, 17 Mich., 54.
As the plaintiff under the contract was entitled to one half the proceeds of the wheat, and the defendant Cronkite to the other half, the plaintiff can in this case recover but one half the market price at the time and place of the conversion. In case he were permitted to recover the full value, the defendant Cronkite would at once have a cause of action against him to recover back one half the amount thereof.
We cannot, as plaintiff insists, enter a final judgment in this court in his behalf. Johnson v. Ballou, 28 Mich., 398.
The judgment must be reversed and a new trial ordered.
The other Justices concurred. | [
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Campbell, C. J.
This is an action of ejectment. Plaintiffs in error, who were defendants below, are in possession of lot 94, section 1, of the Governor and Judges’ Plan of Detroit, being a city lot on Congress street, bordering on and partly including the bed of an old water course known as the river Savoyard. The lot came to Daniel J. Campau, on partition of the estate of his father, Joseph Campau, who died in 1863. Plaintiffs below set up title as heirs at law of Barnabas Campau and Jacques Campau, brothers of Joseph Campau, whom they claim to have been tenants in common, holding each an undivided sixth of the land, of which they insist Joseph Campau owned only four-sixths, which they claim devolved as follows:
The lot in question was conveyed by the Governor and Judges of the Territory of Michigan, April 26, 1809, to Toussaint Campau, who died intestate and without issue in 1810. He had six brothers and two sisters— Cecile (who died before him leaving several children), Jacques, Louis, Joseph, Nicholas, Barnabas, Denis and Catharine. Of these Nicholas died without issue in 1811, and Denis died without issue in 1818. Jacques Campau died in 1838 and Barnabas Campau in 1845. All the heirs surviving Denis, and their children, except Barnabas and Jacques transferred their interests to Joseph Campau in 1823 and 1824, in all their inherited estates, which included this lot, if then owned by them. Denis Campau became administrator of Toussaint’s estate. Joseph was administrator of Denis, but not of Toussaint. Joseph Campau went into the exclusive possession of the property in question at an early day, and as is averred by defendants in error, in a bill filed by them, this possession began soon after the death of Denis Campau. Since that taking of possession, as is undisputed, he held and managed the property exclusively, paid all taxes and assessments, and received all returns.
The principal questions presented by the record bear upon the quality of this possession and the effect of lapse of time. Some questions also arise upon the reception and exclusion of testimony. As some of these matters are connected with administration questions, it will be necessary in the outset to refer to the questions of descent.
There was no law in force during the pendency of these controversies which put real estate into the condition of property to be administered, and neither was Denis Campau as administrator of Toussaint Campau, nor Joseph as representing the same estate, if he did represent it, or the estate of Denis, entitled to hold land of which the intestate died seized. There seems to be no mention made of any administration of the estate of Nicholas, who died after Toussaint and before Denis. Whatever interest may have belonged to Denis can have been no more than the one-seventh part which he inherited as a brother of Toussaint and Nicholas, and which at his own death would go to the five brothers and sisters and the children of the sixth surviving him, with right of immediate enjoyment.
The right of entry, therefore, accrued in 1810 into Toussaint’s estate; in 1811 into the share of Nicholas, and in 1818 into the share of Denis Campau, and the inheritance of Barnabas and Jacques Campau, if existing and not disposed of, became complete rights in those years.
In our opinion the administration questions were all improperly introduced into this controversy, and should all have been excluded. They were calculated to create false issues, and to obscure the real questions presented. The land never as an original inheritance belonged to any estate but that of Toussaint Campau. If it ever belonged to the estate of Denis Campau it was by some title which is in no way. indicated by the proofs. But even if it did, it did not belong to the administration.
The points raised upon the reception of certain depositions require a reference to the chancery proceedings out of which they arose. In 1858 a bill was filed by defendants in error asking a partition of a large amount of property against Joseph Campau, in the same right here set up. The property consisted of some lands originally owned by Toussaint Campau, and some originally owned by Denis Campau. Among the former parcels was the lot now in dispute. The bill deduced title, as here, by descent, and, as before suggested, set forth an early taken and continuous sole possession in Joseph Campau. Between two and three years after this bill was filed, in April, 1861, the causes of delay not being explained, a plea was filed setting up a title perfected under the statute of limitations for more than twenty years; and with this a stipulation was put in, that in case the plea should be overruled or decided against the defendant, he should have time to answer. A general replication was put in January 6, 1862.
On the 2d of June, 1863, certain depositions of witnesses were filed, which had been taken since the replication. The deposition of Theodore Williams appears to have been taken by consent.! The other witnesses were examined in the usual course.
We are not fully informed concerning the exact position of this chancery suit, for the purposes of this record, and we cannot import into this case our knowledge of other cases. So far as we are now informed in this cause, there is no legal difficulty in the way of receiving those depositions, if they are pertinent. They were taken under a valid issue. We need not now consider whether it was one proper to be tried in a partition suit, because the objection cannot be regarded as strictly jurisdictional, and for anything we now know, it may have been waived. The competency must depend, therefore, on the nature of the testimony itself.
We do not think the testimony of Theodore Williams admissible. He testifies to a call made by him on Joseph Campau, in 1846, on behalf of the estate of Barnabas Campau, over which he was one of the executors, to obtain an administration accounting from Joseph Campau of the estates of Toussaint and Denis Campau. Apart from some inferences of the witness himself, there seems to be nothing bearing properly on the title to the land now in question, or any land which is identified. Giving the testimony full credit, it does not touch the present controversy in any way. No admission is sworn to which is pertinent here, and it would be going very far to discover any admission at all. The pecuniary offer made by Williams for the share of the estate he represented in the property of Toussaint and Denis Campau was not accepted, and the discussion is not related, and this lot is not referred to by itself.
So far as the deposition of Louis Campau refers to the facts of family relationship, it is unobjectionable: and so as to the facts of possession, although certainly it is vague and general as to the identity of lands, and is evidently hearsay and improper as to the facts of administration, which if competent should have been proved otherwise.
The deposition of .Noah Sutton was received, tending to show that in 1835 he received from Joseph Campau for assessment purposes a list of lands on which this lot was set down to the estate of Denis Campau, Joseph Campau agent. While it is not easy to see the force of this testimony, we are not satisfied its reception was erroneous, although the land never belonged to Denis Campau, so far as the record shows.
There is no principle on which the statements or admissions of Joseph Campau’s sons in his lifetime could be received to affect his estate. And we do not think offers in negotiations for compromise can be used as admissions of fact. There is a further difficulty in most of the testimony of this kind, that it does not identify any property.
The remaining errors alleged, so far as they are of much importance, relate to the rulings in the charge. It is not, as we have several times decided, error to substitute for express requests in the language of counsel equivalent instructions in the language of the court, provided the ground is fully covered and the jury correctly instructed. But counsel have a right to have every important view of the law clearly formulated, either as they draw ' it up, or in some equally proper form.
There was evidence in the cause which entitled the plaintiffs in error to go to the jury on the theory of an adverse holding prior to 1829. If Joseph Campau so held, prior to the short limitation law of 1829, as to have been subject to an action by his brothers Barnabas and Jacques, or either of them, then as to such claim the bar became complete in 1889. Lastly v. Cramer, 2 Doug. (Mich.), 307. The omission to notice this point, which was plainly presented, was probably an oversight, caused by the attention given to some other matters. It was a substantial error.
There is also another point, under the supplementary charge to the jury which is misleading. The court charged that the statute of limitations would not run against an adverse claim, unless held under claim of title. This is incorrect. It is undoubtedly true that under the old doctrine which made a deed void made by one out of possession of lands held adversely, the adverse holding to produce that effect must have been under claim of title. But for the purposes of the statute of limitations an ouster by a trespasser would be as effectual as any other, if suit was not brought within the statutory period. Any intrusion may continue long enough to bar the right of entry. And if in this case the entry was not in right of the heirs of Toussaint Campau, it was not their entry, and was an ouster of which they could at once legally complain. In such case they must lose their rights unless prosecuted within the statutory period.
In considering the authorities which have been cited before us, a considerable number will be found to have no direct bearing on the effect of possession as a foundation of defense under the statute of limitations. A difference is apparent between that peculiar hostile possession which under the old law rendered conveyances executed by parties out of possession void, and that which will in time, if not disturbed, ripen into a title. The former required possession to be taken under color of title. The latter might originate in trespass as well as in any other way. The effect of any adverse possession as amounting to such an ouster as will set the statute of limitations in motion, or authorize a possessory action by a tenant who is excluded is so well settled as not to be open to controversy. Doe d. Hellings v. Bird, 11 East, 49; Clapp v. Bromagham, 9 Cow., 530; Culley v. Doe d. Taylerson, 11 Ad. & El., 1008; Gordon v. Pearson, 1 Mass., 323; Wright v. Saddler, 20 N. Y., 320; Willison v. Watkins, 3 Pet., 43.
The plaintiffs in error, defendants below, asked a series of requests all of which were refused. The first was that plaintiffs below could not recover if there had been a continuous possession from 1820 till suit brought in 1871 by Joseph Campau and his heirs and representatives, giving leases, receiving rents, with the knowledge of the plaintiffs or their ancestors, and without any actual acknowledgment of the rights of said plaintiffs or their ancestors, and without any claim being made by said plaintiffs or their ancestors for-a share of the rents and profits.
The 2d was on the basis of a similar possession for over twenty years by Joseph Campau before his death, and claimed that therefrom the jury had a right to presume an ouster by Joseph Campau, or a convey^ anee, and that plaintiffs could not recover.
The 3d was that a presumption of title arose from possession, and that the burden was on plaintiffs below to show title in themselves, and. the mere fact that an ancestor had a deed fifty years before suit brought was not sufficient to entitle them to recover.
The 4th was that the burden of proof that the ancestors of plaintiffs did not acquiesce in the exclusive possession of Joseph Campau, was on them, and they could not recover if the facts were as consistent with defendant’s rights as with theirs.
The 5th was that, if Joseph Campau and his heirs held adverse possession more than 20 years before suit, there could be no recovery.
The 6th and 7th referring to actual possession as early as 1834 or 1835, claimed the presumption to be that Joseph Campau took possession in his own right and not for others.
The 8th and 10th referred to the administration proceedings already noticed.'
The 9th was that the burden was on plaintiffs to show the possession to have been taken acknowledging title in Barnabas and Jacques Campau.
The 12th, that an ouster or denial since February 16, 1851, must be proved, in order to enable plaintiffs to recover, and if shown to have occurred before that time (which is 20 years before suit brought,) there could be no recovery.
The 13th, that if there had been an actual, open and notorious claim of right and possession for more than 20 years, it was not necessary to consider anything further back, and no recovery could be had against defendants.
The 14th, that if Joseph Campau took possession of the lot as his own at any time before November 5, 1829, and held it openly and notoriously for ten years thereafter, there could be no recovery.
The charge nowhere presents the several views to be taken on the different hypotheses of the requests, and does not direct the jury what to do in regard to most of them one way or the other. These charges as asked, apart from their other bearings, referred to different periods of time as starting points, and to different statutes of limitation. There was evidence to go to the jury on all these matters, and they should have been presented distinctly. But the general tenor of the charge given is also to be looked at, to see how far it may have operated to aid or obscure the inquiry.
Taken together the charge sets up this theory. It lays it down unequivocally that the presumption is always that a tenant-in-common enters on behalf of all his co-tenants. That no adverse possession could be set up under such an entry without some subsequent change in the character of the possession, made known to the other tenants. But how that character could be changed is not explained, and'the discussion of the question is so mixed up with that of facts which it is said may have some tendency to show what the original possession was meant to be, that we have not been able to determine what the court meant the jury to regard. The assumption is made throughout that the original possession must have been in the common right, and the discussion goes throughout on that theory — the occasional suggestions of a possibility to the contrary not being made in such a way as to be of any use in considering the facts. There is also upon the important element of the quality of the actual possession held without dispute for nearly forty years, a course of reasoning for which there was no basis of testimony. The jury were directed, in considering this possession, to regard the relative amounts of rents and taxes, and told that the action of both parties would be presumably governed by these proportions, which if nearly equal would not lead to any action on either side, but if otherwise would lead the party interested to seek contribution. Upon this subject the record shows there was no evidence whatever, either upon the relation of rents and taxes of the lot here in controversy, or those of the whole estate claimed in this and other lots. When they were told they should look at the “probable amount of rents and profits,” they were left to nothing but conjecture, and the record further shows an entire absence of any rendering of accounts on the one side, or seeking them on the other, whereby the tenants not in actual possession might be governed in determining what course their interests required. All instructions which directed the jury to estimate probabilities from these relative values were misleading, because no relative values appeared.
It is not in this case of any importance to determine how far the presumption exists, inside of the statute of limitations, that a person who has an undisputed title to an undivided interest in lands, and is found in possession, must be prima facie supposed to have entered on behalf of his co-tenants, as well as of himself. Since 1846 a conveyance by an excluded owner of lands held adversely is valid to convey what title he has, and therefore a suit brought within the statutory period by such grantee would be maintainable as well as if brought by the first holder. It can therefore be of no particular consequence now, in such a suit, whether the first entry was friendly or hostile. And it is very clear that, whatever may be the theoretical presumption in ordinary cases, it must after such a lapse of time as creates a bar against all others than co-tenants, be so far dependent on other facts, as to cease to be a simple presumption. It never was a conclusive presumption, and where there is any testimony in the case affecting it, there is no longer any propriety in dealing with it as a continuing presumption. It must either stand as a question-entirely open on the facts, or else as overcome by other legal considerations which create a different presumption.
Without attempting to discuss the nature of such presumptions as may arise from great lapse of time, we shall confine ourselves to such matters as were determined by the majority of this court in the case of Dubois v. Campau, 28 Mich., 304, where, without con curring in all the legal propositions concerning the nature of presumptions, it was agreed that on such facts as there appeared, the hostile possession must be regarded as having continued long enough to cut off any right of recovery. The facts in the present case are somewhat stronger than in that.
There the land in controversy was originally owned by Denis Campau, who died in 1818, and the jury found possession was taken by Joseph Campau in 1835. The character of the possession there was that which had existed in some one ever since 1818, and did not appear to have been modified by any exclusive improvements.
In the present case all the facts indicative of sole possession exist which were shown there, with some others. The averments of the bill in chancery filed by defendants in error, set back the exclusive possession of Joseph Campau to 1818, and more than fifty years prior to the beginning of this action. It further appears that this lot was built upon in 1834 or 1835 with a double house, and held by Joseph Campau and his lessees ever since, and that he had previously filled it up. It also appears that Jacques and Barnabas Campau both lived in the vicinage, and neither during; his lifetime ever set up any claim in this lot, and that no legal steps were taken by their heirs or representatives to establish their claims until many years after their death, when Joseph Campau had become incapable of looking after his own interests, and no possessory action was brought until more than twenty-five years after the deaths of Jacques- and Barnabas.
Under all these circumstances, without reference to any presumption of grant or other transfer of title, we think the jury could not rightly find that there had been any possession which was not adverse and exclusive in Joseph Campau, and his heirs, within the statutory period of limitation.
The present English statutes of limitation, have removed the difficulties which formerly gave rise to go much litigation, by providing that the possession of one tenant in common shall not enure to the benefit of the rest. The object of this statute is understood to have been to remove the doubts which made it impossible for any counsel to advise or for any purchaser to know whether it was safe to deal with land titles held for many years by persons who were averred to be tenants in common. The case of Culley v. Doe d. Taylerson, 11 Ad. & El., 1008, held this statute to be retrospective, and that under it there was no inquiry to be made concerning the original intent of an exclusive possession— as such a possession for twenty years was in all cases a bar.
Our statutes have not, as yet, removed these controversies, and we are left to dispose of them as heretofore. But while there has always been a disposition in courts to preserve tenants in common from being misled to their prejudice by the conduct of co-tenants in possession, the views of those tribunals which have been tenacious on this subject, are quite well agreed that such a concurrence of facts as is presented here, leaves no room for recovery. Doe v. Prosser, 1 Cowp., 217; Jackson v. Tibbits, 9 Cow., 246; Clapp v. Bromagham, 9 Cow., 530; Parker v. Prop’r of Locks and Canals, 3 Metc., 91; Jackson v. Whitbeck, 6 Cow., 632; Rickard v. Rickard, 13 Pick., 251; Peaceable v. Read, 1 East, 568; Vandyck v. Van Beuren, 1 Caines, 83; Bennett v. Clemence, 6 Allen, 18; Thomas v. Garvan, 4 Dev., 223; Lefavour v. Homan, 3 Allen, 355; Willison v. Watkins, 3 Pet., 43; Bradstreet v. Huntington, 5 Pet., 402; Doe d. Reed v. Taylor, 5 B. & Ad., 575.
The judgment below must be reversed with costs, and a new trial granted.
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] |
Campbell, C. J.
Boss & Taekabury sued the Sullivans for certain building materials furnished to one William Courtney on his own credit, but who is now claimed to have really been acting as agent of the Sullivans. The case was referred to Charles B. Howell who decided that the agency was made out and.gave judgment for the claim. The questions before us relate chiefly to the reception of improper testimony.
Without going into details, it is enough to say that no evidence whatever was offered to the referee to prove the execution by the Sullivans of the documents on which their liability was asserted, and that upon other important questions the proof offered and received was hearsay.
Judgment must 'be reversed and the referee’s report set aside, 'and the cause remanded for further action.
The other Justices concurred. | [
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] |
Marston, J.
There is abundant evidence in this •case,' in the letters and course of dealings of the parties, to establish the fact that Burrall was the recognized agent of B. F. Dow & Co. This being so, Dow & Co. are bound by his acts and cannot now repudiate them. ‘The note in question was given to Burrall as their agent. It was payable upon its face to the order of B. F. Dow & Co., and was transmitted to and received by them. Under such circumstances it is somewhat difficult to discover upon what theory they can be considered •as bona fide purchasers thereof. There are still other reasons appearing which would prevent their claiming to hold this paper as bona fide purchasers thereof, but we need not refer to them. The $300 note, to which this note may be considered given as collateral, having-been fully paid by Brakefield, Dow & Co. could not •thereafter insist upon payment of this note or any part thereof. They had already been paid the full amount ■of their claim, and they could not insist upon payment ■of it a second time from this complainant.
It was insisted, however, that Dow & Co. having •.recovered a judgment upon this note against com plainant, they have a right to enforce such judgment,, and that this is all they have been seeking to do.. Complainant claims that he did not appear and defend in that case by reason of being misled by Burrall, the agent of the plaintiffs in that suit. This might be considered a sufficient excuse, but there is still another ground upon which complainant is entitled to come into» this court and seek relief.
The note in question was secured by mortgage upon complainant’s real estate. While the judgment might-bind complainant personally, yet it would not affect the-security or prevent complainant from having the mortgage set aside, upon showing that the obligation it had been given to secure had in fact been paid. The-fact that a judgment had wrongfully been obtained upon the note, binding upon the defendant in that case,, would be no answer in the suit to have the mortgage set aside and his real estate released from the mortgage cloud resting thereon. The court having obtained jurisdiction for this purpose, may, we think, well proceed and examine into the whole case and give complete relief in the premises.
The decree of the court below dismissing the bill must be reversed and a decree rendered in accordance with the prayer of complainant’s bill, with costs of both courts.
The other Justices concurred, | [
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] |
Graves, J.
This is a certiorari to review proceedings taken under color of the township drain law, to make a ditch or drain and apportion and raise the expense. The proceedings in question were begun in July, 1877, but the writ of certiorari was not taken out until January, 1878. The respondent’s counsel, noticing these and some other dates, objects that there has been unreasonable delay and amounting to laches in commencing this proceeding, and he contends that the writ ought to be dismissed for such reason.
In bringing forward this point the counsel must have overlooked the material fact in the return, that the last statement of the jury summoned by the commissioner was not made until the' 21st of December, or nineteen days only before the writ issued. The commissioner must therefore have considered the proceedings as still going on until within a few days of the writ. The objection has no force.
The general rules of law applicable to this class of proceedings have been repeatedly explained and enforced, ■ and it is useless to repeat our previous expositions. A great body of cases will be found collected in Paul v. Detroit, 32 Mich., 108, and several of later date may be easily referred to.
The present record is full of errors, but it would be a waste of time to go through the case and notice each material defect. A reference to one so glaring as to forbid discussion will be sufficient.
The commissioner either had or had not a ease before him which he was authorized to entertain and carry forward, and if he had not such a case, that is an end of the whole matter. But if he had, it was one in which an “examination” was necessary, and consequently one in which it was indispensable for him to appoint a time and place for such “examination,” and to give the notice thereof required by the statute to all persons interested. He proceeded to appoint the time and place for the “examination,” but there is no evidence of lawful notice. The statute governing the subject is very special. §§ 2 and 3 of Act 140, Pub. Acts, 1875, p. 166. On coming to the case where an “examination ” is required, the provision (§ 2) defines the commissioner’s duty in these terms: “he-shall at once appoint a time and place for an examination upon such application, and shall give notice thereof, in writing, to all persons interested in such ditch, or drain, or watercourse who reside in such township, which notice shall be served upon each of such persons at least five days before the day appointed as aforesaid, by delivering a copy to such persons, or by leaving a copy at the residence of such persons, with some person of suitable age; and when any person or persons interested in such watercourse, ditch, or drain, reside out of such township, or any minor, minors, insane, or incompetent person or persons are interested in such watercourse, ditch, or drain, the drain commissioner shall publish such notice once a week for three successive weeks, next before such day appointed, in a newspaper of general circulation in the county in which such township lies, or when there is no newspaper in said county, in a newspaper of general circulation in an adjoining county, unless he shall serve written notice as above provided, on all such persons living out of such townships, and on the guardian or guardians whose wards are interested in such watercourse, ditch, or drain; in which- case the person upon whom such notice is made shall have one day’s notice for every twenty miles travel (excluding Sundays) from their residence to such place appointed, in addition to the five days’ notice provided above; and a ■ copy of such notice, with an affidavit of service, or publication, or both, shall be taken as evidence that the same has been regularly served or published.”
The commissioner sets forth a notice in his return which purports to have been prepared to notify a hearing on the 81st of July and to have been dated on the 25th of the same month, and assuming that it was sufficient in substance it is evident-it only applied to residents of the township and was only capable of service on the day of its date. The time between the date and the return was too short for any method not summary or for any service later than the date. People ex rel. Platt v. Highway Com’r of Clay, 38 Mich., 247. There is no pretense of service of any other' notice or of any attfempt to give notice except by some kind of service of this notice, and we only know that this was served in any manner by the statement the commissioner has inserted in his return to the writ in regard to it. He there observes as follows: “ I served the above notice in writing on all the persons interested in the above described ditch, being township drain No. 3.”
It is worthy of observation in this connection that the statute, as we see, provides that proof of service of the prescribed notice, whether given by publication or by delivery of paper, or whether applied to the real party ox to guardians, may be made by affidavit, and which thus made would form part of the original record in the clerk’s office, and that no countenance whatever is given to the practice of leaving the facts of service and explanation as to the course of service*’pursued, to the recollection of the commissioner, and it may require consideration whether the mention by the Legislature of the mode of proving service by affidavit is not to be construed as excluding proof by subsequent oral testimony. But the point is not involved and is not decided, and whatever view may be taken of it, it is well settled that the mere general statement by the commissioner as part of his answer to the writ is not proof on the hearing in certiorari that lawful notice was given. Dupont v. Highway Com’rs of Hamtramck, 28 Mich., 362; People on rel. of Livermore v. Burnap, 38 Mich., 350; Dickinson v. Van Wormer, ante, p. 141. But if the statement by the commissionei be received as an unobjectionable mode of proof, it is still bad. It does not explain the facts. It does not state how or when or on whom the service was made. Whether the imperative requirements of the law were in point of fact obeyed or disobeyed cannot be discovered, and we cannot, at least for this review, presume they were observed. That they were substantially complied with ought to appear affirmatively. Cases cited above and People on rel. of Goldsmith v. Highway Com’rs of Nankin, 14 Mich., 528; Names v. Com’rs of Highways, etc., 30 Mich., 490; Van Auken v. Highway Com’rs of Vernon, 27 Mich., 414; Kroop v. Forman, 31 Mich., 144; Purdy v. Martin, Id., 455; Ross v. Com’rs of Highways of Taylor, 32 Mich., 301.
The proceeding must be quashed.
The other Justices concurred. | [
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Graves, J.
This ejectment was brought by defendants in error for a strip of land four feet and seven inches wide, 'and claimed in the ease as being the westerly four feet and seven inches of the easterly half of lot thirty-nine of the subdivision of out-lot one hundred and eighty-two of the Bivard farm in the city of Detroit.
February 7, 1873, plaintiffs in error owned this lot thirty-nine (39), and at that time, by deed, granted to defendants in error the easterly half according to the recorded plat, “together, with the dwelling house being thereon,” and about a month later they went into possession under the grant and have since occupied accordingly. At the time of the grant a fence which still remains was standing at the east between defendants in error and the adjoining proprietor of lot thirty-eight. The occupancy on each side was bounded by the fence, and defendants in error have continued to hold under their deed from that fence twenty-four feet westerly and to the fence dividing the lot into halves, including a house and barn situated on the parcel.
Defendants in error alleged and gave evidence tending to show that the fence between their occupancy and that east on lot thirty-eight was four or five feet too far east; that they did not know there was any mistake about boundaries; and that the question had not been mentioned between them and plaintiffs in error until a short time before this suit was commenced.
They further gave evidence tending to show that according to a recent survey made by a surveyor of long experience in Detroit, all the lots in the subdivision of out-lot one hundred and eighty-two are out of the way; that the fences and buildings on all the lots are incorrectly located; that the owner of the lot on Prospect street, — which street bounds the subdivision on the east, — has encroached on said street between four and five feet, and that the owners of lots west of that lot, as they actually occupy, respectively encroach on the owner next east to the same extent, and that for three or four blocks the lines of the lots along Prospect street encroach on the street between four and five feet. They also gave evidence tending to show that according to this survey the true line would run through the dwelling house on the westerly half of lot thirty-nine where plaintiffs in error reside.
The plaintiffs in error submitted evidence conducing to show, among other things, that lots thirty-nine and forty, as well as other contiguous lots in the subdivision, had for twenty years and upwards been identified and defined in their position and extent upon the ground by buildings, fences and harmonious occupancy, and that at the very time of the grant to defendants in error the physical evidences of recognized and long admitted bounds which plaintiffs in error contend for, were visible and apparent to everybody. There was no conflicting evidence in regard to these facts. They were not disputed, and there is no evidence that the practical locations and proprietary and possessory recognitions ever deviated until after the remarkable results of the late survey. The evidence was abundantly sufficient to require the case to be submitted to the jury on the defense. If believed, it was competent for the jury to find that the east line of lot thirty-nine had become fixed and established at the place marked by the fence.
The court however refused to regard this evidence as having any force, and in effect withheld it.
He instructed the jury to find for defendants in error. The matter of defense the court thus refused to recognize is within the doctrine which has been expounded and fully approved by this court in several cases. Smith v. Hamilton, 20 Mich., 433; Joyce, v. Williams, 26 Mich., 332; Stewart v. Carleton, 31 Mich., 270; Pratt v. Lewis, ante p. 7. And in some of them the impropriety of disregarding the various landmarks which time and actual occupancy and improvements and the behests of usage and general acquiescence have produced, in deference to the disordering achievements of some modern survey, has been distinctly adverted to and explained. This record contains enough to justify such observations. The requests of plaintiffs in error should have been given.
The judgment is reversed with costs, and a new trial ordered.
Campbell, C. J. and Cooley, J., concurred.
Cooley, J.
The judge below took this case from the jury, instructing them that on the facts the plaintiffs were entitled to recover. We think, on the other hand, that if he had submitted the case to the jury on the facts, it would have been their plain duty to return a verdict for defendants.
The controversy concerns part of a lot on a plat of a subdivision of a part of outlot 182, Rivard farm, surveyed by Thomas Campau in 1850, and recorded in 1851. There are forty-eight of these lots in the subdivision. Whether they have all been sold off and improved by the purchasers we are not informed, but it appears from the record that many of them have been. It also appears that there has been a practical location of a street on one side the plat and of other streets across it, and also of the lot lines. The lot the boundary of which is in dispute in this case has been fenced in for twenty years by fences on the supposed lines, and it does not appear that the lines have been disputed until recently. The adjoining lots have also been claimed, occupied and improved according to the practical location of the lines.
This litigation grows out of a new survey recently made by the city surveyor. This officer after searching for the original stakes and finding none, has proceeded to take measurements according to the original plat, and to drive stakes of his own. According to this survey the practical location of the whole plat is wrong, and all the lines should be moved between four and five feet to the east. The surveyor testifies with positiveness and apparently without- the least hesitation that “the fences and buildings on all the lots are not correctly located” and there is of course an opportunity for forty-eight suits at law and probably many more than that.
When an officer proposes thus dogmatically to unsettle the landmarks of a whole community, it becomes of the highest importance to know what has been the basis of his opinion. The record in this case fails to give any explanation, but the reasonable inference is that the surveyor has reached his conclusion by first satisfying himself what was tbe. initial point of Mr. Campau’s survey, and then proceeding to survey out the plat anew with that as his starting point. Of course by this method if no mistake is made, there is no difficulty in ascertaining with positive certainty where, according to Mr. Campau’s plat, the original. street and lot lines ought to have been located; and apparently the surveyor has assumed that that was all he had to do.
Nothing is better understood than that few of our early plats will stand the'test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation- of the surveyor might well be set down as a great public calamity.
But no law can sanction this course. The surveyor has mistaken entirely the point to w'hich his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance, — a -rule that we have frequent occasion to apply in the case of public surveys, where it? propriety, justice and necessity are never questioned, But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights. The city surveyor should, therefore, have directed his attention to the ascertainment of the actual location of the original landmarks set by Mr. Campau, and if those were discovered they must govern. If they are no longer discoverable, the question is where they were located; and upon that question the best possible evh deuce is usually to be found in the practical location of the lines, made at a time when the original monm ments were presumably in existence and probably well known. Stewart v. Carleton, 31 Mich., 270. As between old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines- of a. lot actually are, and it would have been surprising if the jury in this case, if left to their own judgment, had not so regarded them.
But another view should have been equally conclusive in this case. The long practical acquiescence of the parties concerned, in supposed boundary lines, should be regarded as such an agreement upon them as to be conclusive even if originally located erroneously. We had occasion to apply this doctrine in Joyce v. Williams, 26 Mich., 332, and need not enlarge upon it here. See also Smith v. Hamilton, 20 Mich., 433; Stewart v. Carleton, supra.
I agree with my brethren that the case should be sent back for. a new trial.
Campbell, C. J., concurred.
Marston, J., did not sit in this case. | [
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Graves, J.
October, 1853, complainant purchased of the State forty acres of school land in Clinton county at the price of $160, and paid down $40 and received a certificate of purchase in the usual form. December, 1857, he made an assignment of the certificate, absolute in form, to defendant. At this time they had for many years been friends and neighbors and complainant was indebted to defendant in the sum of about $12 or a little less. Complainant was in occupation of the lot and has since continued in it. He has paid the most of the taxes and interest to the State, and has used the land and made some improvement. Defendant has likewise paid taxes and interest on one or two occasions. The relations of the parties were somewhat confidential and their mutual dealings seem to have embraced many small transactions. At the time of the assignment one Sturgis was pressing a demand by action against complainant, and which the latter regarded as unjust. As part of the transaction when the certificate was transferred, complainant executed to defendant a bill of sale of bees, farm stock and products, and amounting with the land, which was valued at $115, to the sum of $187.06, as stated in the bill of sale. In this paper complainant admitted payment of the price by satisfaction of the old debt of about $12 and receipt of defendant’s note for $176.67 payable in three years. This note if given was never paid and became barred many years ago.
Some time later than April 1st, 1864, and probably about that time, the precise date not appearing, defend ant made out an account of matters between himself and complainant, and gave it to the latter. In this paper he set down as a demand still due him from complainant, the old debt of about $12 and also charged complainant for interest paid in 1868 on the land certificate. Prior to 1863, but the accurate date not being shown, defendant became owner of a mortgage of about $125 on another forty-acre lot of complainant and on which the latter lived.
February, 1875, the defendant without any new consideration, if any whatever, canceled this mortgage and gave it up to complainant.
April 20, 1876, the parties disagreed about their affairs and became angry. Finally an arbitration was mutually assented to, but was afterwards declined, and within a day or two the defendant paid the balance owing to the State, surrendered the certificate and took a patent in his own name. This bill was then filed. The complainant alleged that the school land certificate was assigned to defendant merely as security for the old debt of about $12 and was in fact and in equity nothing but a mortgage, and so intended by the parties, and redemption was prayed.
The answer denied that the assignment was made as security and insisted that it was in fact what it was in form, an absolute sale. It further claimed that complainant was urgent to sell in order to secure the property from Sturgis. The parties were the main witnesses and on some essential points their testimony was contradictory and in particular respects improbable. No doubt age had impaired their memories. Among other things complainant stated that the defendant gave up to him the mortgage debt on the ■ other lot as a pure gift, and defendant deposed that complainant in later years had complained that he had not received as much for the property as its value warranted, and hence to satisfy him, but not on account of any legal obligation, he gave up the mortgage debt on the other lot as paid. That complainant told him if he “would assign over that mortgage, he would give up all claims to the other forty, real or imaginary.” That it was the understanding that complainant might occupy .if he would pay the taxes and interest. It is not necessary to rehearse the pleadings or specify all the facts. The circuit court decreed relief and an appeal against it was taken.
First. The fair effect of the whole evidence, direct, circumstantial and presumptive, is to prove that the parties intended that between • themselves the transaction should be an assignment as security for the valid existing debt of about $12, and not an absolute sale; and subsequently, if not at the same time, they concurred in an understanding upon which they acted that further indebtedness springing from their dealings should stand secured in the same manner. That pursuant to such design the old debt of about $12 was kept on foot and not canceled, and new indebtedness was recognized as an addition. Hence, as between themselves, the relation was that of mortgager and mortgagee. Besides our own cases, reference is made to late ones elsewhere. Campbell v. Dearborn, 109 Mass., 130; Odell v. Mohtross, 68 N. Y., 499; Wilson v. Giddings, 28 Ohio St., 554; Morgan’s Assignees v. Shinn, 15 Wall., 105.
Second. The bill does not suggest or even vaguely intimate that the cause or any part of the cause of making the assignment in form absolute was to hinder Sturgis from meddling with the property. It sets up the transaction as a mortgage and nothing else, and claims redemption. The answer, which was not on oath, alleged that complainant called on defendant ' and importuned him to purchase his, complainant’s, interest in the land certificate, “ pretending to defendant that he was compelled to sell it to keep it from being 'taken on execution, or other process, by his creditors, and that defendant did then and there purchase of said complainant his interest in said land certificate for said land.” On being sworn as a witness the defendant repudiated fully and distinctly this statement in his answer, and testified to a state of facts repugnant to any such ground of defense. The complainant, however, departing from the bare case in the bill, testified in explanation of the transaction that defendant invited him to assign the certificate in order to secure the property from Sturgis, and that the transfer was made in the form which was given to it with that design. The defendant now insists that this statement of complainant, which he positively contradicts, is sufficient to require the court to refuse to interfere and construe the transaction as a mortgage.
Without entering into the question whether the court might not set aside this objection on the broad principle that as between the parties the transaction was not void (Hess v. Final, 32 Mich., 515; McAuliffe v. Farmer, 27 Mich., 76; Millar v. Babcock, 29 Mich., 526; Harvey v. Varney, 98 Mass., 118; Clemens v. Clemens, 28 Wis., 637; Springer v. Drosch, 32 Ind., 486; Brooks v. Martin, 2 Wall., 70), it is sufficient to observe that this matter of defense is not so raised and grounded as to call upon the court to act on it. Haigh v. Kaye, L. R. 7 Ch. App., 469. The defendant does not boldly speak out and say that complainant giving him his confidence placed the property in his hands to cheat a creditor, and that he in violation of all faith and trust means to hold it as his own. He flatly denies having received the property in that way, and then falls back on complainant’s showing in that direction and seeks the same advantage from it as though he admitted it to be true. But what is complainant’s explanation? It is that Sturgis sued him but had no cause of action, and that defendant advised that the assignment should be made as a sale in order to keep Sturgis off, and that the transfer was shaped as a sale under that suggestion. This is a discreditable admission, but it is not sufficient for the purpose of defendant, who denies and repudiates it. There is no explanation in words of the fate of that suit. Everything rests on the statements of complainant, and as he swears it was baseless, it is reasonable to intend that it was actually abandoned. The defendant makes no claim that it was kept up. On the contrary, he asserts that he was not aware of any such suit. The transaction is consequently left as though no outstanding matter existed to be affected, and certainly the objection cannot find support in the fact that there was a mental purpose to cheat, but which could never take effect for the want of a creditor to be injured. Boyd v. De LaMontagnie, 73 N. Y., 498.
Third. The cause was fully heard in term, namely, May 22, 1877, and taken under advisement. At the succeeding November term the judge was ready to pronounce his decree, and in fact did pronounce it at that term, namely, November 21st, 1877. It was then made to appear that the defendant had died in the meantime,' and the judge thereupon incorporated an order in the decree, requiring it to be entered nunc pro tunc as of the day when the cause was heard. This is said to be a fatal error. On the contrary, it was strictly regular to give the decree relation back and order it to be entered as of the time when the cause was heard. Seton, 1137; 2 Dan. Ch. Prac., 1016, 1017; Cumber v. Wane, 1 Strange, 426; Davies v. Davies, 9 Ves., 461; Belsham v. Percival, 8 Hare, 157; Bank of U. S. v. Weisiger, 2 Pet., 331, 481; Campbell v. Mesier, 4 Johns. Ch., 334; Vroom v. Ditmas, 5 Paige, 528; Wood v. Keyes, 6 Paige, 478; Kelley v. Riley, 106 Mass., 339; Emery v. Parrott, 107 Mass., 95; Tapley v. Goodsell, 122 Mass., 176; Freeman on Judgments (2d ed.), §§ 56, 57.
The decree should be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
March 29th, 1877, Daniel German commenced a suit against relators, in the circuit court by declaration to recover a money demand, all the parties being residents of the city of Detroit.'
On the 16th of April following, the relators entered their appearance, and at the same time applied in regular form to the circuit court for the removal of the cause to the Superior Court of Detroit, and tendered a bond executed by them and a surety in the form prescribed, and thereupon the circuit court ruled that the bond was. satisfactory and accepted the surety as sufficient.
May 5th, 1877, and on or before the first day of the term of the Superior Court succeeding these events, the relators caused to be filed in the office of the clerk of such court a duly certified transcript of all the papers and proceedings in the cause in the circuit court, and the action was then regularly entered in the Superior Court, and on the 8th of May, three days afterwards, the relators demanded a bill of particulars and made it. expressly as in ease of an action in the Superior Court.
May 12th, 1877, the circuit -court assumed to entertain a motion by the plaintiff in the action to vacate the order for removal, and on the 13th of August following entered an order purporting to grant the motion, and since that time the court has continued to assert jurisdiction in disregard of objection by relators. The facts are admitted and a mandamus is asked to require the circuit judge to rescind the order of August 13th, and all later proceedings in the circuit court.
The case stands on demurrer to the application, but as no one has appeared for respondent, and no brief has been offered, we are left without any knowledge of the grounds of opposition, if in fact there are any which are relied on.
It appears to us that the cause was regularly transferred, and that the circuit court had lost jurisdiction. If power over the cause still remained in that tribunal there would be great difficulty in the attempt to ascertain at what stage it would terminate.
The proceedings to remove had been in due form and in season. The court had sanctioned them and had adjudged in favor of the right, and all the steps required to consummate an actual removal had been taken and completed, and the cause had come to be one subsisting in fact in the Superior Court and with the approbation of the circuit court. It seems to us that the power of the circuit court was, in these circumstances, at an end, and that the proceedings complained of were unauthorized and should be set aside.
Let the writ issue as prayed.
The other Justices concurred. | [
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7
] |
Campbell, C. J.
Collins sued Jackson in an action on the case for fraudulently inducing him to buy out a stock of goods belonging to his wife for wdiom he acted as manager, which were not as represented.
Mrs. Jackson had a stock of dry and millinery goods at Marquette, and on the 6th day of November, 1876, she sold them to Collins at five per cent beyond the inventory price, agreeing not to engage in the dry, fancy or millinery goods business in that place for five years, unless the purchaser and his sons meanwhile went out of trade.
The fraud complained of was falsehood in representing that th£ goods were new, fresh, well selected and salable; that the old goods had mostly been removed to another place and upwards of $8000 of new goods just put in stock, and that the goods had been purchased at the lowest market prices and were worth the prices paid for them. That induced by these representations Collins purchased the stock at $26,043.21.
It was then averred that these representations, repeating them one by one, were false; that the goods were mostly old, shelfworn, ill-selected and unsalable; that several cases of old and unsalable goods had been brought from another store and placed in the stock, and not over $2000 of new goods had been put in, and that the cost of the goods, as inventoried was excessive.
It was alleged that by reason of these misrepresentations the goods could only be sold at a loss, and plaintiff could not meet his obligations, lost his business credit, spent much time in attempting to dispose of the goods, and was deprived^of his profits.
He recovered a verdict of $2750, and error is alleged on the rulings.
We cannot discover any such defect in the pleadings as should prevent a recovery. The declaration we think sets forth a substantial grievance. It cannot be laid down as matter of law that the representations were completely matters of opinion of such a nature that they could not amount to fraudulent statements, and any defect in fullness of averment should have been pointed out by demurrer. When issue is joined on the facts* the declaration cannot be held fatally defective unless inconsistent with any reasonable ground of action.
It is nevertheless important to bear in mind, in view of the testimony, that it does not set forth the agreement not to carry on business; that it does not aver any conspiracy; that it sets out no representations of the value or extent of the business previously, and docs not aver the goods did not cost the inventory price. In other words it does not set out all the transactions, but confines the cause of grievance to the particulars named.
Evidence was allowed of various acts and sayings of one W. P. Town and of Mrs. Jackson, as having been inducements to purchase. We do not think them admissible. Plaintiff chose to plant himself on particular statements of Jackson. While there is testimony which has some bearing on the supposed privity of the three parties complained of, some of these statements, which were very material, were different assurances, of facts which were important, but which are not complained of. Unless the injury resulted from the frauds set forth in the declaration, there can be no recovery. The conspiracy or agency should have been averred, and the falsehoods enumerated. It is probable the purchase was seriously influenced by the statements not averred, some of which are claimed to have been false and some are not so proven. The jury could not give damages unless satisfied the bargain would not have been concluded if no statements had been falsely made except those declared on.
We do not think there is any material error in the rulings concerning the effect of statements of opinion on fraud. Opinions on matters equally open to both par ties cannot be regarded as entitling any one to rely upon them, unless so made as to intentionally deceive by putting a person off his guard, and inducing him to act upon them. The general rule is that they do not stand on the same footing as facts. But sometimes they are meant and understood on both sides to be relied upon to determine action. Where this is so they are properly held to be grounds of liability.
It is certainly possible for the owner of a stock of goods to deceive a buyer who could by examining each parcel by itself avoid being deceived. All such transactions must be looked at reasonably, and no one should be held negligent who makes all" the use of his own faculties and ' opportunities called for by the occasion. No rule can adequately define all the circumstances in which representations either of fact or of opinion may become fraudulent and actionable. One who is as prudent on the particular occasion as most prudent men would be, and is nevertheless cheated, can hardly be held negligent. The law encourages diligence and requires all persons to look after their own interests, but it does not hold out any inducement 'to rogues to practice any sort of fraud with impunity.
It would be likely that a merchant must know more about the proportion of new and old goods in his store, and their merchantable quality, than any one else could get in advance of taking an inventory, and even then if the purchaser could not conveniently handle and examine all. And for the same reason he may be expected to know how closely he has purchased. The circumstances of the transaction will have more or less weight in determining the duties of both parties in using their judgment and making statements. How far the talk which dealers and purchasers exchange on such occasions should be treated as banter or held to be serious must usually be rather matter of fact than of law. A very large allowance must usually be made for customary exaggerations.
It is not very easy to determine from the bill of exceptions how far the inventory taken in the following spring could have aided in throwing light on the character of the stock in the preceding fall. We cannot say it was not admissible, although without some evidence accounting for the condition and changes of the stock in the mean time, it would be of no valué.
We think the court did not instruct the jury properly on the matter of damages, and that some testimony on that subject was- objectionable. The real loss, on the allegations in the declaration, was the difference in value between the goods .as they were, and as they were represented; which the declaration avers as resulting in a sale under cost. That would not represent the entire mischief in all cases, and would not probably in this, but how far any other damage could be compensated we need not attempt to determine, because no other cause of damage is averred. The court helow acted on this theory. But we do not think that in such a case the plaintiff can recover beyond his actual damages averred. If he sells his goods profitably he is not injured under such averments although they are not worth in fact what he nevertheless succeeds in getting for them. And we think that it was entirely competent to show under this declaration that in the disposition finally made of the goods the damages were reduced or made good by an advantageous disposal. If he lost nothing he had no cause of action on that theory, and if he lost less than he feared, his actual loss is all he can claim.
We do not think it necessary to refer to the further considerations in the record. Most of them are either governed by what we have already said, or are not likely to come up again.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Graves, J.
From April, 1871, until January, 1873, Smith and Peter were in partnership in the manufacture of pine timber. January 27, the partnership closed. Hart and Turrill were engaged in banking under the style of B. G. Hart & Co. Smith & Peter opened and kept a bank account with .the latter firm, and when it began it was agreed between the parties that Hart & Co. should discount the shingle-paper of Smith & Peter at one and one-fourth per cent, a month. The agreement was verbal. January 13th, 1874, Peter gave a note in the .firm name of “ Peter & Smith ” to the firm of B. G. Hart & Co. for a supposed balance of the bank account still standing, but with the understanding that errors in the account should be open to correction. The amount expressed was $1732.46, and it was made payable in sixty days with interest at ten per cent.
The action was brought on this note, and after issue was referred to three referees. They examined the dealings and accounts and found several errors, and finally reported that allowing fifteen per cent for discounts there was due Hart & Co. $229.82, but allowing seven per cent, there would be due only $109.51, and as a conclusion of law that judgment ought to be given for the sum of $229.82.
The circuit court affirmed the report and awarded judgment accordingly. Smith complains that he was not liable for an allowance above seven per cent., and hence that it was error to enter judgment on the findings for any sum above $109.51.
The result depends on the interpretation to be placed on the facts as reported by the referees. If the transactions were mere purchases from Smith & Peter from time to time of such paper as' they acquired in the course of their business operations 'of one kind or another and the purchases were made upon the terms that fifteen per cent, should be deducted or thrown off, the result-was not erroneous. The law permits the purchase of paper already in existence and operative, at such rates as parties fairly agree upon. Where there is no deception or unfairness they are left to the influence of their own views concerning values and, also in regard to the expediency of particular terms. It has not been deemed wise to hamper men in these matters by any rules implying their inability to take care of their own interests in the absence of any oppressive, cheating or misleading practice.
If, therefore, a proper view of the findings proves that the facts establish that the dealing was buying and selling paper, then the facts support the judgment for the amount it specifies. But if they fail to establish this and simply favor the conclusion that the manner of the business was for Smith & Peter to deposit their paper in account from time to time and to draw against it as they had occasion, and for Hart & Co. to strike balances at intervals and to compute interest at fifteen per cent, thereon, then the facts do not support the judgment for the amount expressed.
It would not be profitable to discuss the import of the findings in regard to this, question. They are not very clear upon it. But a careful inspection of them induces belief that they do not show that the transactions consisted in buying and selling paper as before mentioned, but rather indicate — if they do not make out— that the operations were as subsequently described. It follows that the judgment below should have been for $109.51 instead of $229.82.
The judgment should therefore be reversed with costs and one entered here for $109.51, with interest from the date of the referees’ report, plaintiff to have costs of court below and defendant costs of this court.
The other Justices concurred. | [
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] |
Black, J.
Pursuing requirement of a then-existing zoning ordinance of the city of Dearborn, plaintiff applied to the city for a building permit. His purpose was that of construction of a service garage, measuring 20 feet in width by 60 feet in length, on his otherwise-used residence lot fronting Telegraph road. According to the city, plaintiff’s application was denied at the time as “incomplete,” principally on account of failure of plaintiff to specify, in the application, a “minimum 160 feet setback from front property line to front of building to comply with established setback line for all other buildings in this block.”
At the time of such denial no ordinance required any such setback of construction. And the allegation of “incomplete” application was found below as being without substance aside from the city’s ordinance-unsupported demand for specification of such minimal setback.
This petition, for mandamus to compel issuance of a permit according to such application, was filed January 31, 1958. Issue was joined February 6, 1958. May 13,1958, the pretrial hearing was conducted and the required pretrial statement was prepared and filed. At the opening of hearing upon the pleaded issues (July 24,1958) the defendant city filed a pleading headed “Notice to court of amendment of city ordinance and amended and supplemental answer to petition for peremptory writ of mandamus.” By such pleading the city sought to interpose an additional defense by way of a new and amendatory or-¿finance, †adopted by the city council June 3, 1958, the essence of which appears in the margin.
The pleading included formal motion for leave to amend the city’s answer, and to amend the pretrial statement, so as to include such proposed additional defense. The trial judge, manifestly and understandably irked by such pendente legislation and its suit-defensive purpose, refused to permit the amendment and went on to decide the issues the parties had presented by their original pleadings and the specifically worded pretrial statement. He said:
“The court can place no other construction on this activity on the part of the legislative or 'executive branches of government than to take care of a new situation presented by the facts in this case and perhaps to be used as a medium wherein and whereby the petitioner would be stopped in his desire to use his property in a manner that would not cause an injustice to either himself or the city of Dearborn.
“It can be seen at once in this record as made that if this petitioner had to build his building 160 feet back from the lot line there would be a considerable amount of frontage that he would either have to make into a parking lot or grounds unusable — or perhaps make it into a garden atmosphere that could be of some worth to the vicinity as a whole.”
The pretrial statement (now termed “a summary of the results of the pretrial conference” ), not having been “modified at or before the trial to prevent manifest injustice,” controlled and limited the triable issues. They were the issues the parties had pleaded. It is not claimed that denial of modification thereof amounted to an abuse of discretion or that such modification was necessary “to prevent manifest injustice.” Indeed, the whole record considered, injustice to plaintiff might have resulted from any such last-minute order providing a defense which did not exist when the petition was filed. And so I would hold that the pleadings and pretrial statement excluded and now exclude consideration of the aforesaid amendatory ordinance as a possible bar against mandamus in this case.
I discover no error and vote to affirm, with costs to plaintiff.
Dethmers, C. J., and Kelly and Kavanagh, JJ., concurred with Black, J.
By the amendatory ordinance plaintiff’s property became zoned in such way as to prohibit construction and use of the proposed service garage building according to the plan of plaintiff’s said application. The amendment provides:
“Sec. 603.2. Influence of existing buildings on depth. Where a front yard of greater or less depth than required in section 603.1 exists in 50% of buildings on one side of a street on any block, the depth of front yard of any building subsequently erected or placed on any 1 of such lots shall not be less, and need not be greater, than the average depth of the front yards of such existing buildings.”
See amendments of Court Rule Ño 35, 352 Mich xv:xvii. | [
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] |
Souris, J.
Plaintiff is the widow of John Pobursky, who was an officer in the police department of the city of Detroit from May, 1927, until his death on May 2, 1948. On January 15, 1948, officer Pobursky sustained an injury to his back in the course of performance of his duties as a police officer. He complained of very severe pain in his back and of blood in his urine. X rays were taken, which showed no fracture but did disclose a soft tissue mass suggestive of a tumor. On March 2, 1948, an operation was performed, and it was found that the officer had a carcinoma of the left kidney with metastases to other organs. The growth couldjiot be removed nor could the urinary bleeding be reduced. On May 2, 1948, officer Pobursky died of renal cancer with metastasis of the lung.
Thereafter, in 1948, plaintiff herein applied for widow’s benefits under the provisions of the charter of the city of Detroit, claiming that officer Pobursky had died as the result of injuries received in the course of his duties. The application was denied.
In May of 1957 plaintiff petitioned the board of trustees of the police and firemen’s retirement system for a review of her application and for the appointment of a medical board of review pursuant to charter provision. Plaintiff contended that the injury of January 15,1948, to her husband aggravated and accelerated a pre-existing cancer, shortening his life, and that thereby there was a causal relationship between the injury, the illness, and the death. The petition was granted, and a medical board was appointed which reviewed the files and records in the case. Two of the members of the medical board concluded that the back injury received by officer Pobursky aggravated a pre-existing condition in his left kidney and that there was a causal relation with his subsequent death. The third member of the medical board disagreed.
On March 4, 1958, the board of trustees acknowledged receipt of the medical board’s reports, accepted its medical findings, and then denied the plaintiff’s petition for widow’s benefits on the basis of its finding that her husband’s death was not the result of illness or injuries received while in the performance of his duties. It should be noted that the defendants did not contend below, nor do they here, that officer Pobursky did not injure his back on January 15, 1948, while in the performance of his duties as a police officer. Hence, the finding of the board of trustees upon which its denial of plaintiff’s petition was based is, in fact, a finding that officer Pobursky’s death was not causally connected with his admitted injury, contrary to the finding of a majority of the medical board.
Following denial of her petition, plaintiff instituted certiorari proceedings in the circuit court of Wayne county. The circuit court concluded that the board of trustees was bound by the findings of the medica] board that there was causal connection between injury and death and that, therefore, plaintiff was entitled to the widow’s benefits provided by the defendant city’s charter. Defendants have appealed, claiming, in substance, that on certiorari the circuit court had no power to review the board of trustee’s decision except for want of jurisdiction, fraud, bad faith, abuse of discretion, or arbitrariness; and that if the defendant city’s charter is construed as binding the board of trustees to-accept as conclusive the findings of the medical board with reference to the causative factors involved in the death of officer Pobursky, to that extent said charter is unconstitutional.
The validity of the charter provision making findings of the medical board final and binding upon the board of trustees was before this Court in the October, 1959, term. Kelly v. City of Detroit, 358 Mich 290. Mr. Justice Carr, writing for a unanimous Court, held that the claim of invalidity - (the same claim is made also- in the case at bar) was not well-founded. There is no reason to alter the result reached in Kelly. We therefore rule that the findings of the medical board (that is, the findings of 2 of its 3 members) that officer Pobursky died as a result of cancer, that his cancer was aggravated by his injury of January 15, 1948, and that there was a causal relation between said injury and his death, were final and binding upon the board of trustees within the meaning of title 9, chap 7, art 3, § 12(c), of the charter of the city of Detroit.
■ Defendants’ claim with reference to the power of the circuit court oh certiorari is likewise without merit, the board of trustees having assumed jurisdiction to make a finding of medical fact, which we have held in Kelly v. City of Detroit, and here, to be within the exclusive jurisdiction of the medical board to find. ■
Affirmed, with' costs to plaintiff.
Dethmers, C. J., and Carr/Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
Municipal Code, City of Detroit.. (1954), p 248.—Repobter. , | [
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Per Curiam:
Decision and opinion of the Court in Armco Steel Corporation v. Department of Revenue, 359 Mich 430, are dispositive of all issues raised on appeal in this case.
Affirmed, without costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, and Edwards, JJ., concurred.
Kavanagh, J., did not sit.
Souris, J., took no part in the decision of this ease. | [
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Smith, J.
This appeal arises from a' prosecution for corruptly offering money to influence the action of 3 public officers, members of the board of examiners in optometry. †It is not denied that money in fact changed hands. The defendant, however, asserts that the money was not offered with corrupt intent. He says that he paid it over to terminate a scheme of extortion. This the jury disbelieved. He was found guilty, a fine was thereupon imposed, and he was sentenced to imprisonment for a term of years.
The defendant was a partner in King Optical Company. This company had an office in Lansing adjacent to the office of Dr. E. L. Sanchick. It was the practice of King Optical Company to refer patients coming to it, in response to its newspaper advertisements, to any doctor in the city, “or to the doctor who leases space next door to us or adjacent to our office.” The Michigan hoard of examiners in optometry (hereinafter called the board) had brought certain charges against Dr. Sanchick as a result of his relations with King Optical Company, and it is with respect to defendant’s alleged efforts ■to have the Sanchick case “washed out” by the board that much of the testimony is concerned.
The defendant had first met Dr. Feiler, according to the latter, in Chicago in 1949 or 1950. Since that time they had intermittent contacts. In October of 1951 they met in Chicago with respect to a patent matter. In the following month, November, Dr. Feiler was appointed to the hoard. The next meeting between defendant and Dr. Feiler was in 1952 or 1953. Dr. Feiler’s version of this meeting is that it had to do with defendant’s difficulties in his contact lens laboratory in Chicago, for advices concerning which he, Dr. Peiler, was paid the sum of $350. Defendant’s version is that Dr. Peiler came to him, demanded money as the price of peace (with the Michigan board, of which he was now a member), and so received the said sum. Defendant made no report of this to the board, the Illinois police, the Michigan police, or any other law-enforcement agency.
Their next meeting occurred in 1953. Dr. Peiler testified that the meeting related to the sale of some contact lenses belonging to a Dr. Golden, that the sale did not eventuate, and that he was paid his travel expenses by Dr. Golden. Defendant’s version was that this, also, was the occasion of further extortion, that Dr. Peiler had said, “You give me $500 or else I’ll put you out of business,” which sum was thereupon paid over. Again, there was no report by the defendant to the authorities of any jurisdiction of the demands allegedly being made upon him,, now, apparently, as a matter of course.
In Chicago, in August or September of 1954, another meeting allegedly occurred. Although Dr. Peiler denies the meeting, defendant asserts that it was the occasion for another demand for money, specifically for $15,000, $5,000 for each of the 3 members of the board. This demand was allegedly overheard by a friend of defendant, Dr. Brill, who testified to that effect. As before, no report of the demand was made to the police.
The Sanehiek matter, concerning which the alleged bribe was paid, comes into the record in November of 1954. Dr. Feiler’s testimony was that defendant called him, asked him about the Sanehiek case and said “he would like to have this washed out.” Defendant’s version, again, is at variance. It was Dr. Peiler who called him, he says, and again it was a demand for money, this time for $15,000. Defendant resisted: He "replied, he says, that he “wasn’t going to be shaken down any more.”
In January of 1955, Dr. Feiler testified, defendant again called him regarding the Sanchick case, stating, it was said, that it would be worth $3,000 or $4,000 to have it “washed out.” Dr. Feiler testified that he responded that he could do nothing about it but defendant asked that they meet to discuss the matter. Dr. Feiler at this point notified the Federal bureau of investigation of the matter, who, in turn, we gather, notified the State police. When defendant and Dr. Feiler then met, on January 12, 1955, in the Sheraton-Cadillac hotel, 'the police had installed a microphone, and the conversation was monitored by them. Upon cross-examination the defendant admitted that he had at that time asked Dr. Feiler if he could do anything for Dr. Sanchick. When Dr. Feiler responded, at a later point, “I don’t understand just quite what it is you want me to do,” the defendant replied, “I want you to do just like anything else. You know what to do. Find a way to wash it out. Instead of the lawyers getting the money I give it to you. It’s just as simple as that.” The defendant further stated, in the course of their conversation, that if the board was going to push him (defendant) around that he was going to start a little pushing himself, as he had done in Indiana. There, he said, he had “filed a suit in Federal court for a million and a half, suing each member of the board and each member of the association and all of their officers of the association personally, not as an association.” He went on, describing his actions, “I wasn’t very nice in Indiana. I was a bastard. I had the secretary of the board on the witness stand. I only started with him. I was going to keep him on for 3 weeks, day in and day out.” He questioned. Dr. Feiler thus: “If I start a number of suits like I did in Indiana, do they [the hoard members] scare pretty good?” ■ •
The next meeting of the defendant with Dr. Feiler in Detroit was late in March. On the 27th day of this month Dr. Feiler reported to the board members that defendant wished another meeting-with him to discuss further the Sanchick 'case. This meeting was held at the Statlér hotel, the respective versions again opposing bribery (Feiler) against. extortion (defendant). Although arrangements had. been made to meet the next day, at the board meeting the following morning Dr. Feiler was advised by an officer of the' State police, and the board, to have no further contact with the defendant. Nevertheless he did meet with defendant at a clothing store in Detroit, at which time and place the defendant put in his pocket an envelope later found to contain the sum of $500. This incident.Dr. Feiler did not report to any proper authority until the following September when he turned the money over, to the State police and informed an assistant attorney general of the matter. For his derelictions in connection, therewith he was later removed from office by the governor.
Various telephone conversations having been had between Dr. Feiler and defendant, and reported by Dr. Feiler to State police officers, he was asked to attend a meeting in Lansing to discuss the matter with an assistant attorney general. Dr. Feiler stated in part that he had been requested by defendant “to get in touch with him” and he was -authorized to call defendant in Chicago. This call was monitored by the State police. Dr. Feiler asked if he (defendant) “was going to bring the stuff .with him,” to which defendant replied, “I’m not paying for anything in advance, not until the goods.-are .delivered.” Defendant said he was going to be in Detroit that week end and would contact Dr. Feiler later.
On Sunday, August 7th, defendant prepared to meet with Dr. Feiler in the Statler hotel in Detroit. He had hired Pinkerton detectives and was prepared to record the transaction. Dr. Feiler, however, acting under instructions, did not appear but, rather, telephoned excuses and set up a meeting at the Olds hotel in Lansing for the following night. To Dr. Feiler’s inquiry as to whether defendant was prepared “to take care of this thing” the next night, defendant responded that he was not going to Lansing for a joy ride. Defendant thereupon instructed the Pinkerton detectives to meet him the next night at the Olds hotel in Lansing and to use a suite he had reserved.
We now come, at long last, to the happenings at the Olds hotel on the night of August 8th, the date and place of the alleged offense of bribery. Dr. Feiler, the other members of the hoard, and defendant were in one room. In an adjoining room were the Pinkerton detectives hired by defendant, with their tape recording equipment. In a room nearby were the State police officers. Defendant took charge of the meeting. He said that they were meeting “to see if we can work something out so we will have a little bit of a truce.” He made reference to the Sanchick case, and to the antitrust suit he had filed. He spoke of his lawyers in the latter matter and how they were “cleaning up on both of us.” We continue with the record. The defendant is testifying on cross-examination :
“Q. And did you then say, T am going to spend money on lawyers. There is no question about it. I would rather spend it some other way. Do you want me to discuss it with you gentlemen? Or with Julian’?
“A. Yes, sir.
“Q. And did Dr. Feiler say, ‘They are here, and they understand the deal. I want to get out of here. I am not going to stay all night’ ?
“A. Tes, sir.
“Q. And did you say, ‘All right. We can finish in 5 minutes. I am prepared to pay you $5,000’ ?
“A. Yes, sir.
“Q. And did Dr. Grigware say, ‘Apiece?’
“A. Pardon?
“Q. Did Dr. Grigware say, ‘Apiece?’
“A. Yes, sir.
“Q. Asking a question, and did you say, ‘No, 5,000 is the money I’ve got alloted to spend. Eather than spending it on lawyers, I would rather give it to you’?
“A. Yes, sir.
“Q. And did Dr. Grigware say, ‘What do you want in return now?’
“A. Yes, sir.
“Q. And did you say, ‘I don’t care who gets it or how it is divided. You know what I mean. In return? I want you to wash out this case. Get this Sanchick case washed out.’
“A. Yes, sir.
“Q. And did Dr. Howe then say, ‘Then what do we get in return?’
“A. Yes, sir.
“Q. And did you say, ‘What?’ and did Dr. Howe say, and repeat, ‘What might we get in return?’
“A. Yes, sir.
“Q, And did you say then, ‘Well, the Federal case will be washed out too’?
“A. Yes, sir.”
Additional discussion ensued. Mr. Eitholz said that he would give them “2,000 apiece, make it an even 6,” but that he didn’t have the entire sum with him. We continue with the testimony of the defendant on cross-examination:
“Q. And did Dr. Grigware say, ‘No, I should say you don’t want to wire it to me’ and did you say, ‘No, no, to myself. I will have somebody on the plane. I tell you what. One of my cousins, I don’t know if you know him, has to go to Windsor anyway, so he can fly up here. We are moving our office to Windsor. So he was going there Wednesday morning. Let him go tomorrow. He will bring the dough. Now, -where do you want me to give you the rest of the dough? Here’s 300 bucks just to show good faith is all, bind the bargain’?
“A. Yes, sir.
“Q. And at that point did you hand the money?
“A. Yes, sir.
“Q. And whom did you hand it to?
“A. Hr. Feiler.
“Q. And what did Dr. Feiler do with it?
“A. fie gave $100 each to the other 2 men.
“Q. And what did Dr. Howe do with his $100 bill that he had in his hand?
“A. I think he put it on the couch.
“Q. Back toward you? ■
“A. I don’t exactly remember where he put it. You see, I was sitting on a couch, he was sitting on a chair, facing that way (indicating).
“Q. Well, what did you do with it?
“A. G-ive it back to him.
“Q. And did you say something when you gave it back to him?
“A. I don’t recall.
“Q. Did you say that you wanted him to have it or some words to that effect?
“A. Yes, sir. Yes, sir.”
At the close of the meeting the board members turned over to the State police the $100 bills they had received. The- officers thereupon went to the Ritholz suite, introduced themselves, were admitted, and arrested defendant upon a charge of bribery. Detective Sergeant Chrispell of the State police testified that at this juncture defendant “went to another-door in the.room and pounded on the door, and at that time the door opened and there were 3 men standing there.”
The defendant was thereupon taken to the State police headquarters and ultimately brought to trial as hereinabove noted.
It is first asserted to us that, “In view of In re Sanchick, 347 Mich 620, defendant could not lawfully be adjudged guilty of the criminal offense of bribery defined in section 117 of the penal code.” In the case cited the Michigan board of examiners in optometry heard a complaint that Dr. Sanchiek had employed King Optical Company as a “capper” or “steerer,” in violation of the statute regulating the practice of optometry. The board found that Dr. Sanchiek had violated the statute, and suspended his license. On appeal, the circuit court affirmed. Appeal was taken to this Court, appellant urging that there was no evidence to support the finding of the board that he (Dr. Sanchiek) employed the King Optical Company as a “capper” or “steerer” as barred by the legislation enacted. Our holding was that the record did not support the allegation made and we reversed the order of suspension.
The above having been our disposition of the Scmchich Case, appellant argues to us that defendant could not lawfully be found guilty of paying money to board members “to induce the board to do the very thing which this Court itself enjoined upon them to do,” i.e., dismiss such complaint. Belated to this issue is that involving the composition of the board. Defendant sought to show that the members of the board were in economic competition with him, had a pecuniary interest in the matter submitted to them, and hence that the act of the legislature creating such hoard was unconstitutional under the asserted principle of Milk Marketing Board v. Johnson, 295 Mich 644. Prom this defendant concludes that “defendant could not as a matter of law be guilty of bribing a member of such an unconstitutionally created board.” To this point defendant cites State v. Butler, 178 Mo 272 (77 SW 560), a case arising out of the St. Louis municipal scandals around the turn of the century. It was there held that since the ordinance purporting to grant the board of health authority to award a contract for the removal of garbage was illegal and void, money offered a member of the board to influence his judgment in the matter did not constitute a bribe.
The above holding, it is clear, is not the law of this jurisdiction. As we said in People v. McGarry, 136 Mich 316, 322: “The vabxbiy of the act proposed is not the test,” nor is the legal sufficiency of the action taken by the board. Here the defendant did insist upon and attempt to obtain the dismissal of the proceedings against Dr. Sanchick, the precise evil attempted to be guarded against in the bribery statutes, namely, the corruption of public officials, the attempt to pervert the exercise of honest judgment in the discharge of their duties. The gist is the attempt to so pervert and corrupt the effort to influence the official judgment by money or reward. It would be a monstrous and shameful doctrine that judgment in the courts or boards of this State might be purchased with insolence and impunity if the law under consideration were later declared unconstitutional, or, indeed, if some flaw were found to exist in the authorization or composition of the court or board before which a matter is heard. Commonwealth v. O’Brien, 107 Pa Super 569 (164 A 360). We do not, of course, in so holding, imply any illegality in fact in the board’s composition, nor do we concede defendant’s assertion that our holding in the Sanchiclc Case, supra, meant, as appellant asserts, that “the board had no jurisdiction to entertain” the matter.
It is urged, also, that the police “illegally searched defendant’s rooms after his arrest and illegally seized his property consisting of a tape recorder and tape, therefrom.” The trial court’s denial of defendant’s motion to suppress such evidence is alleged to be error. It is argued that the property seized was merely evidentiary material, not an instrumentality of crime or contraband.
It is to be noted that the arrest of defendant Ritholz was made only after the police had received direct evidence from the bribe recipients of the attempt made, and, in fact, were in possession of the three $100 bills paid by defendant. The arrest was thus made pursuant to statute (CL 1948, §764.15 [Stat Ann 1954 Rev § 28.874]) authorizing an arrest without warrant when a felony has been committed and the officer has reasonable cause to believe that the person arrested has been guilty of the commission thereof.
Such being the case it is clear, as we held in People v. Harris, 300 Mich 463, 465, quoting People v. Cona, 180 Mich 641, 652, that:
“ ‘The police have the power and it is also their duty to search the person of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which lie is arrested.’ ”
This holding is correctly applied to the circumstances before us. An arrest, in fact, may well be an idle ceremony if the police seizure of evidence of the commission of the crime itself (particularly, as here, an electro-mechanical reproduction thereof) is held to be “unreasonable.” The test of reasonableness, as was held in Harris v. United States, 331 US 145, 150 (67 S Ct 1098, 1101, 91 L ed 1399, 1405) “cannot be stated in rigid and absolute terms. ‘Each case is to be decided on its own facts and circumstances.’ ” Moreover, we do not overlook the evidence that the tape machine here involved was voluntarily surrendered by the Pinkerton men, and that they made no complaint with respect thereto. Cf. Holt v. United States (CCA 6), 42 F2d 103. If they are regarded merely as agents of defendant, and their possession his, their voluntary surrender thereof was also his, as well as their surrender of the suite, which had been rented at his order. It is our conclusion that neither the receipt of the tape by the officers, nor the reference thereto made by the prosecution in cross-examining the defendant were violative of his constitutional rights.
Much of the additional error urged upon us involves the assertion that the payment of money to the public officers, above described, was not made with “corrupt intent,” but rather with “the innocent purpose of terminating a long series of extortions practiced upon” the defendant. It is asserted, moreover, that “bribery and extortion are mutually exclusive crimes,” which the court refused to recognize, thereby committing error not only in the receipt of evidence but in the charge given. We will first examine such alleged errors.
In a case such as we are discussing, the crimes of bribery and extortion are alike in that each involves the payment of money to a public official. There, however, the similarity ends. Extortion is the exaction of money, under color of official rights, from an unwilling payor. In bribery, on the other hand, the payor voluntarily presses his money upon the public official hoping thereby to influence his official action. Thus, as the Oklahoma criminal court of appeals pointed out in Finley v. State, 84 Okla Crim 309, 320 (181 P2d 849, 856): “While bribery and extortion are distinct offenses, the same facts may be the basis for the charge of either extortion or bribery.” It depends upon the intent with which the money is paid. In People v. Feld, 262 App Div 909 (28 NYS2d 796), the appellant was indicted on the charge of extorting money from an employer by threatening to foment a strike among its employees. The defense was that the employer, instead of being a victim of extortion, had bribed the defendant (a representative of the labor union). The court speaks with entire accuracy when it states:
“A question of fact was presented and the appellant was entitled to have the jury instructed that if the employer were guilty of bribery, the appellant could not be guilty of extortion. The 2 crimes are mutually exclusive.”
The word to be stressed in the above is the word “guilty.” The mere fact of payment alone may be ambiguous, susceptible of interpretation either as bribery or as extortion. It is for the jury to determine which of the offenses, if either, has been committed, of which one there is evidence of “guilt.” Only in that sense are the 2 crimes exclusive.
The court below, on the matter of intent, charged in part as follows:
“Now, it is the general claim of the defendant that he did agree to pay $6,000, that is $2,000 each to Drs. Peiler, Howe, and G-rigware, on August 8,1955; that he paid each of these men $100 to apply on that figure,- but that his said agreement and the payment on account was made without any corrupt intent to influence the board in the case of Dr.-Edwin L. Sanchiek, and that the agreement was made by the defendant solely to get the evidence against these public officials for use in exposing them,, and that Dr. Peiler had been extorting money from the defendant and that he had led the defendant to be lieve that Drs. Howe and Grigware were interested in doing the same.”
And, also:
“Whether or not Dr. Feiler had extorted money or was attempting to extort money from the defendant is not the question that you are to decide by your verdict, but you, of course, may use your decision on that question in determining the defendant’s intent in the bribery charge.”
Although isolated sentences of colloquy or charge may support appellant’s allegations of error in this respect, we are not persuaded that the charge as a whole was unfair to defendant or misstated the law. See People v. Coleman, 350 Mich 268, 282.
Complaint is made, also, relating to the introduction of evidence. It was the claim of the defendant that in paying money to the public officials in the Olds hotel, he did so “for the innocent purpose of ending their continued practice upon him of extortion.” He insists that he had no “corrupt” intent and that none was shown. He paid, he says, innocently, to obtain evidence of extortion for submission to the proper authorities in order that he might no longer be made the victim of the defendant’s evil machinations. It was a necessary step in his proofs, he asserts, that the series of extortions down through the years be shown, and in this showing he says that he was hampered and restricted by the court’s rulings.
Corrupt intent is, of course, a necessary element in the crime of bribery. It is not necessary, however, as we pointed out in People v. Vinokurow, 322 Mich 26, 30, 31, “that there be direct testimony as to the intent required in the statute. If such were the case it would be almost a rarity when a conviction could be obtained under this kind of a statute.” The intent is to be gathered from the acts done and the circumstances under which they were done. Here the crime is alleged to have been committed in the Olds hotel. The testimony of what was said and done there is utterly barren of any intimation of previous extortions. The defendant was an experienced businessman, trained in the law, and well versed in the uses of the law, as his various antitrust suits amply demonstrate. That this man, recording the transaction by his own paid agents, would have made no reference in his lengthy discussion, with the board members, of the past extortions of at least one of their number, evidence of which he claimed to be gathering, is inherently incredible. That his reluctance to do so stemmed from any moral or legal scruples over making such criminality a matter of record is, itself, equally incredible. He was blunt and to the point respecting his payments. “ [In return for the money] I want you to wash out this ease. Get this Sanchick case washed out.” He would also dismiss the antitrust suit which he had instituted against the board members and the Michigan Optometric Association.
Hpon such record the court might well have held completely irrelevant to the charge at hand any testimony whatever of past alleged extortions. There was nothing ambiguous about what was to be done, or what was sought in return. Nevertheless the court did permit the introduction of evidence herein-above set forth, going back to the first meeting between Dr. Peiler and defendant in 1949 or 1950, the meeting in October of 1951, the next meeting, following Dr. Peiler’s appointment to the board in November of 1951, subsequent meetings in 1953, and a meeting in August or September of 1954 in Chicago. With respect to these meetings, as we have seen, 2 different versions were presented to the jury: that of Dr. Peiler to the effect that they were of a legitimate business nature, that of tbe defendant tbat tbey were extortionate in character.
We will assume, without conceding, that the Olds hotel incident was sufficiently ambiguous as to require, in fairness to the defendant, the showing of a system of extortionate demands by Dr. Feiler and the board. This may be accomplished through’ evidence of past acts material to the charge of systematic extortion. The Arkansas supreme court in Butt v. State, 81 Ark 173, 181, 182 (98 SW 723, 726, 118 Am St Rep 42), in holding that evidence”'of prior acts of bribery was admissible, stated the applicable principle in these words:
“You might as well expect that one should be able to judge correctly the merits of a play, and of the motives and conduct of the actors as displayed therein, by witnessing only the last scene of the last act, as to expect, where the crime under investigation is part of a connected scheme, that the jury should be able to determine the motives of the defendant and judge correctly of his guilt or innocence without any knowledge of the origin of the crime or the circumstances and motives that led up to it. The law does not blindfold courts and juries in that way, and- it is always competent to show the beginning as well as the end of the criminal transaction.”
This, it will be noted, does not require the aid of the intent statute, the purpose of which, as we held in People v. Rose, 268 Mich 529, 536, “was to do away with the rule as to proof of other offenses and permit the introduction of such testimony even though it might show or tend to show the commission of another prior or subsequent offense by defendant.” It is just at this point that defendant makes his thrust at the introduction of evidence relating to the system of extortions. He says it was received with restrictions as to its use, grudgingly, sometimes with disparaging comment as to its materiality, and at times only as bearing upon the credibility of Dr. Peiler. The short answer to all of this is that it was, nevertheless, received, and in such detail that, in our opinion, the jury was given a reasonably accurate presentation of the claims of both the State and the defendant. Even with respect to evidence of system, the relevance of events far removed in time or circumstance must lie within the discretion of the court and we are not persuaded that prejudice arose either from exclusion or reluctant admission. Assuming, as we do, that evidence of a system of extortion was admissible, error would lie in receiving it as bearing solely upon credibility, and not as substantive proof, but we think the court adequately covered the matter in its charge to the jury in which it said:
“Now, it is the general claim of the defendant that he did agree to pay $6,000, that is, $2,000 each to Drs. Peiler, Howe, and Grigware, on August 8,1955; that he paid each of these men $100 to apply on that figure; but that his said agreement and the payment on account was made without any corrupt intent to influence the board in the case of Dr. Edwin L. San-chick, and that the agreement was made by the defendant solely to get the evidence against these public officials for use in exposing them, and that Dr. Peiler had been extorting money from the defendant and that he had led the defendant to believe that Drs. Howe and Grigware were interested in doing the same.
“As stated, these general claims as far as the defendant is concerned and the court’s statement of them, is not to he taken by the jury to limit the consideration of other claims which have been offered and received in evidence during the trial.
“As I have stated to you before, the gravamen of the offense in this particular case, in view of the admissions of the defendant regarding the agreement and the payment, is the corrupt intent to influence that board in the Dr. Sanchick case, if there was any corrupt intent. You must determine that question to reach your verdict.
“There has been evidence offered and received on the question of whether or not Dr. Feiler was extorting money or trying to extort money from the defendant by threatening his business. This evidence has been admitted for your use in determining the defendant’s intent at the time of the agreement and the payment of August 8, 1955. That is the only purpose of such evidence. Whether or not Dr. Feiler had extorted money or was attempting to extort money from the defendant is not the question that you are to decide by your verdict, but you, of course, may use your decision on that question in determining the defendant’s intent in the bribery charge. «5 * *
“The court also wishes to state that during the course of the trial on at least 1 occasion, and maybe on more, the court ruled that certain testimony regarding the affairs between the defendant and Dr. Feiler was only admissible as bearing upon the credibility of Dr. Feiler, and that I wish to change. That testimony may be also used by you, if you deem it useful, for the purpose of determining the question of extortion in this case.”
We have examined the remainder of the alleged errors made, including those relating to evidentiary matters, the charge, and to the prosecutor’s cross-examination of the defendant, as well as his final argument, and find they are without merit. Some of the phraseology of the charge might have been more artistic, and the prosecutor might at times have been more gracious, but no trial ever conducted is wholly without blemish. Technical error, however, is not our test. We must be persuaded that the errors complained of were so gross as to have deprived defendant of a fair trial, that his conviction was, in truth, a miscarriage of justice. We are far from so persuaded. Appellant argues that the evidence does not sustain the verdict of defendant’s guilt beyond a reasonable doubt. The evidence thereof, on the contrary, may be regarded as overwhelming. Defendant’s account of the extortions practiced on him over a period of years, suffered by him in silence, verge on the incredible. He argues that he did not complain to the police of them because his word alone would not have been effective. A citizen’s failure to report crime is not excusable by reason of such assumption on his part. We noté, also, that at no telephone conversation (between Dr. Peiler and defendant) monitored by the State police do we find complaints of past extortions by defendant, though he testifies he made them in abundance at conversations unheard by others. Thus the conversation held on January 12, 1955, in the SheratonCadillae hotel in Detroit, heard in its entirety by the police (and the first monitored conversation) has a significance beyond that of its actual content. Up to this point defendant’s versions of the meetings held with Dr. Peiler have been replete with his (defendant’s) protests against the “shakedowns” to which he was allegedly being subjected. Yet, although we have examined the police versions of this conversation with care, the testimony of the officers, Van Wie, Bogan, and Chrispell, we find it to be utterly barren of reference to past extortions, shake downs, or other coercion practiced upon defendant by Dr. Feiler. Rather, it is defendant who is aggressively demanding that Dr. Feiler have the Sanchick case “washed out,” not only for a money reward, but, if not, under peril of receiving the same kind of legal harassment as defendant had, in his own words, exercised against officials of the State of Indiana. The picture, in short, is not that of a public officer exercising the powers of his office for purposes of intimidation and coercion, but rather that of a citizen demanding that official action cease, both for reward and under threat.
The Olds hotel incident was, as we have noted, likewise barren of such accusations on the part of The defendant, though his bargaining was frank enough to include other considerations, including the dismissal of the Federal case by defendant. Finally, regardless of the merits or demerits of Dr. Feiler, wo do not overlook the fact that money was offered to the other members of the board, whose connection with any extortion was far more tenuous than that of Dr. Feiler, if, indeed, it can fairly he said to have existed at all. The case was carefully tried by competent counsel. The evidence adduced against defendant was ample to justify the verdict reached. We find no substantial error in the case and no need to discuss additional claims of error.
Affirmed.
Dethmers, C. J., and Kelly, Black, and Edwards, JJ., concurred.
Carr, and Kavanagh, JJ., did not sit.
Souris, J., took no part in the decision of this case.
CL 1948, § 750.117 (Stat Ann § 28.312).
In In re Sanchick, 347 Mich 620, this Court reversed the order of suspension previously rendered against Dr. Sanchick for alleged unprofessional conduct.
See CL 1948, § 750.214 (Stat Ann § 28.411).
CL 1948, §-768.27 (Stat Ann 1954 Rev § 28.1050), reads:
“In any criminal ease where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like aets or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show-the commission of another or prior or subsequent crime by the defendant.”
See CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096). | [
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] |
Dethmers, C. J.
Is evidence obtained through unlawful search and seizure in another State, by its officers, admissible in a criminal case in this State, or should it be suppressed on motion seasonably made before trial 1
A Federal question, under the 4th and 14th Amendments to the Constitution of the United States is not presented. Wolf v. Colorado, 338 US 25 (69 S Ct 1359, 93 L ed 1782); Irvine v. California, 347 US 128 (74 S Ct 381, 98 L ed 561). As for Rea v. United States, 350 US 214 (76 S Ct 292, 100 L ed 233), in which it was held that a Federal district court, upon application, should have enjoined a Federal agent from transferring to State officers or testifying, in a State criminal prosecution, concerning evidence he had secured through unlawful search and seizure, it has no Federal application to a case in -which the offer of unlawfully obtained evidence in a State prosecution is by an officer of that or another State, as abundantly appears from the reasoning in that case and in Stefanelli v. Minard, 342 US 117 (72 S Ct 118, 96 L ed 138).
Michigan Constitution of 1908, art 2, § 10, contains a guarantee of security from unreasonable search and seizure. In People v. Marxhausen, 204 Mich 559 (3 ALR 1505), this Court adopted the Federal exclusionary rule anounced in Weeks v. United States, 232 US 383 (34 S Ct 341, 58 L ed 652, LRA1915B, 834), by holding that evidence unlawfully seized in this State, by officers of this State, must, upon timely application before trial, be returned to the person from whom seized and, hence, that the same is, then, inadmissible in evidence in a criminal case in this State.
Should this exclusionary rule be extended, in criminal cases in this State, to evidence obtained through search and seizure in another State, unlawful both in that State and this, by officers of that State? There is no exact precedent in this State. Cited by defendants, as authority for an affirmative answer, are State v. Rebasti, 306 Mo 336 (267 SW 858), and State v. Hiteshew, 42 Wyo 147 (292 P 2), involving use in State courts of evidence unlawfully obtained by Federal officers, in which decisions turned largely on considerations of Federal constitutional rights, not here involved, and also Little v. State, 171 Miss 818 (159 So 103), decided on the theory, considered in Hiteshew, that Federal officers are, in effect, also State officers. We do not consider these decisions of material aid to defendants’ position. No cases are cited holding evidence unlawfully obtained in one State by its officers to be inadmissible in a criminal case in another State. Holding in the negative are Young v. Commonwealth (Ky), 313 SW2d 580, Kaufman v. State, 189 Tenn 315 (225 SW2d 75), State v. Olsen, 212 Or 191 (317 P2d 938), People v. Touhy, 361 Ill 332 (197 NE 849), Walker v. Penner, 190 Or 542 (227 P2d 316), and State v. Wills, 91 W Va 659 (114 SE 261, 24 ALR 1398). The subject is fully annotated in 50 ALR2d, § 9, p 570 ei seq. The weight of the authority is clearly that the exclusionary rule is not extended to these circumstances. We think the reasoning in the cases so holding to be sound.
In Young v. Commonwealth, supra, the Kentucky court said:
“In Kentucky we have long held that evidence obtained by officers of this State as a result of an illegal search made in this State is inadmissible at the trial of the person whose constitutional rights were violated by the search.”
Speaking of the exclusionary rule just above recognized, the Kentucky court went on to say:
“The rule, then, is founded upon a violation of the Kentucky Constitution by Kentucky officers, and is a major part of the intended protection against illegal search and seizure. Without encroachment upon our constitutional guaranty we lose the reason for the rule. There can be no violation of section 10 except within the territorial limits of this State and by officers of this State. In the present case neither locale nor officer can pass the qualifying test and we must therefore hold that there has been no constitutional violation upon which to lay the rule.”
In Kaufman v. State, supra, the Tennessee court said (pp 319-321):
“Our Constitution has no extraterritorial effect. Moreover, as pointed out by the State’s counsel, the principle of law which forbids the admissibility of evidence obtained by reason of any unlawful search does not proceed from any statutory prohibition, but is a judicial pronouncement for the preservation of constitutional rights of the citizens of Tennessee. * *
“The weig'ht of authority seems to sustain the State’s insistence that the evidence to be excluded must have been obtained unlawfully by officers of the jurisdiction in which it is sought to be offered. 24 ALR 1408, 1424; 32 ALR 408, 414; 88 ALR 348, 362; 134 ALR 819, 827; and 150 ALR 566, 576. Most if not all the cases referred to in the annotations in ALE above cited hold that evidence obtained as a result of an unlawful search by State officers is admissible in Federal courts. State officers seem to be considered as strangers to the administration of justice in the Federal courts, or at least they are private citizens having no recognized official status. * * *
“We think that inasmuch as the Arkansas highway police were not in any way amenable to our laws in arresting and searching defendants in their automobile, their authority to make the search cannot be made the subject of an investigation by the courts of this State.”
The Michigan constitutional guarantee makes no express provision for the exclusionary rule. The rule is court-created and designed to effectuate the guarantees of the Constitution of this State. With respect to acts beyond its borders, by officers of another State, such guarantees do not extend to them and, hence, the reason for the rule in that regard disappears and, with it, the rule.
Michigan cases casting some light on this Court’s views concerning this general subject are Cluett v. Rosenthal, 100 Mich 193 (43 Am St Rep 446), and Schloss v. Estey, 114 Mich 429. Both are civil eases. In Cluett it was held that:
“One who is in no way responsible for the tort by which information has been obtained by a witness may introduce evidence of the facts ascertained, even though a trespass or wrong was committed by the witness in obtaining the information.” (Syllabus 2.)
Schloss is of like import. See, also, O’Toole v. Ohio German Fire Insurance Co., 159 Mich 187 (24 LRA NS 802). While these eases are not conclusive of the question before us, their slant is in the direction of the majority view herein considered.
■ Order denying motion to suppress and conviction affirmed.
Carr, Kelly, Smith, Black, Edwards, and Kavana'gh, JJ., concurred.
Souris, J., took no part in the decision of this case. | [
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Smith, J.
The issue upon which this case turns is one of procedure. It arises out of an order vacating a decree for specific performance after claim of appeal had been filed.
It was decreed on July 25, 1957, that the plaintiffs (sellers) might have specific performance of a certain instrument. The defendants had insisted that it was merely an option but the chancellor held otherwise. He concluded that it was “an absolute offer of purchase,” and decreed specific performance thereof. The decree provided, inter alia, that certain described lots in tbe Janes Westmont Addition to the City of Grand Rapids, “subject to restrictions of record,” be conveyed by the plaintiffs “free of * * * encumbrances.” A claim of appeal from this decree was filed on August 13, 1957, and appeal fee paid.
Subsequent thereto defendants’ attorney, for the first time, he asserts, “discovered that there were restrictions on this property which would prohibit using this property for church purposes.” Defendants, accordingly, filed a petition to vacate the decree theretofore entered, plaintiffs opposing upon various grounds, including that of lack of “jurisdiction to consider this petition” under Court Rule No 56, § 1 (1945). After hearing, an order vacating the decree was entered, which order plaintiffs have appealed upon leave granted.
First, the facts. It was found by the chancellor upon adequate proofs that the sellers knew of the buyers’ purpose in acquiring the property, namely, to build a church thereon. He held, further, that it was the sellers’ duty to determine whether they were able to convey property usable for the known purposes, and it was his duty to disclose to the buyers (and to the court at the trial on the specific performance issue) if he were not able, because of the restrictions, so to do. It was held, further, that it was equally the duty of the buyers to ascertain whether or not the property could be used for its intended purpose. Upon all of the circumstances presented he concluded, with ample justification, that there had been mutual mistake and “at least * * * a constructive fraud,” although he was careful to absolve the sellers from any active fraud or wilful concealment.
It is provided in Court Rule No 56, § 1 (1945), as follows:
“Every appeal to the Supreme Court shall be taken by filing a claim of appeal with the court, tribunal or officer whose action is to be reviewed, and paying the fee required by law for taking appeal. The Supreme Court shall thereupon have jurisdiction of the case. No such appeal shall be dismissed except on stipulation, on special motion and notice, or by the Supreme Court on its own motion.”
It is also. provided in section 1 of Court Rule No 48 (1945), as follows:
“On proper cause shown, a rehearing of an equitable action may be had. No application for such rehearing shall be heard unless filed within 2 months from the entry of the final decree, except where application is made on the ground of newly-discovered evidence, in which case the application must be filed within 4 months.”
These sections are not inconsistent, but, rather, each complements the other. As we held in Miles v. Harkins, 335 Mich 453, 455:
“We have many times held that Court Rule No 56, § 1, does not nullify Court Rule No 48, relative to the trial court’s discretion to grant a rehearing.”
It will be noted that the language of the rules, and of the cases, is phrased in terms of “rehearings.” The motion for rehearing, as it is now called, is not, however, limited to the strict “rehearing” known to early law and chancery pleadings. Under modern practice it takes the place of the old bill of review, the bill employed historically in chancery for broad review of and relief against the decree of a court of chancery.
It is in part the contention of the appellees that their petition, dated October 18, 1957, to vacate the decree entered on July 25, 1957, comes within the express terms of Court Rule No 48, § 1, relating to an application “made on the ground of newly-discovered evidence,” which must he filed “within 4 months.”
A motion for rehearing on the ground of newly-discovered evidence rests peculiarly within the sound discretion of the trial court. Although such motion is not looked upon with favor by the courts, *there is no hesitation in its allowance where the circumstances are such that, having in mind a party’s “knowledge as to the essential facts of the case,” among other factors, its donial.would result in a miscarriage of justice. In this case the trial issue, as framed by the parties, and as ruled upon by the court, was whether or not the agreement was a mere option or a binding contract to purchase. • The “essential facts of the case,” as formulated and tried, related to such issue. The evidence later discovered, at the time of the implementation of the decree, relating to the restrictions on the property was material, noncumulative, and, with respect to the issues framed and tried, not discoverable by the moving party in the exercise of due diligence. The failure to put such matter before the court, in the opinion of the chancellor, resulted in “a constructive fraud [having been] perpetrated upon these defendants, and if not upon them, at least upon the court, because the court was entitled to know whether or not he was in a position to convey this property for the purpose that the negotiators were buying it for.”
Under such circumstances there was no abuse of discretion upon the trial chancellor in granting a rehearing. '
Affirmed. Costs to appellees.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
Fries v. Wonnacott, 270 Mich 86; Honigman, Michigan Court Rules Annotated 503, discussing Court Rule No 48, § 4 (1945).
See Eveland v. Stephenson, 45 Mich 394; Story, Equity Headings, §§ 403-405.
Chapin v. Cullis, 299 Mich 101.
Lisiak v. Lupienski, 241 Mich 119.
Detroit Savings Bank v. Truesdail, 38 Mich 430, 431 (Syll 10). | [
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Grant, J.
The Constitution of Michigan contains the following provisions, found in article 4:
“ Section 1. The legislative power is vested in a Senate and House of Representatives.
“ Sec. 2. The Senate shall consist of thirty-two members. Senators shall be elected for two years, and by single districts. Such districts shall be numbered from one to thirty-two, inclusive, each of which shall choose one Senator. No county shall be divided in the formation of "'Senate districts, except such county shall be equitably entitled to two or more Senators.
“ Sec. 4. The Legislature shall provide by law for an enumeration of the inhabitants in the year 1854, and every ten years thereafter, and, at the first session after each enumeration so made, and also at the first session after each A enumeration by the authority of the United States, the ij/Legislature shall rearrange the Senate districts * * * .¡¡according to the number of white inhabitants, and civilized ¡Ipersons of Indian descent not members of any tribe.”
Acting under these constitutional provisions, the Legislature passed the senatorial apportionment act, No. 175, Laws of 1891. By the census of 1890 the population was 2,093,889. The ratio of each district would therefore be 65,434. Eight of the districts under this act contain populations as follows: Seventh, 91,420; tenth, 82,697; fourteenth, 88,678; eighteenth, 86,129; twentieth, 84,694; twenty-fifth, 82,556; twenty-seventh, 97,330; thirty-first, 82,213. These are the eight largest districts. Eight other districts contain populations as follows: Twelfth, 41,245; eleventh, 42,210; sixteenth, 46,626; twenty-second, 42,546; twenty-third, 89,727; twenty-eighth, 43,701; twenty-ninth, 40,033; thirtieth, 53,068. Under this apportionment eight Senators would represent constituencies numbering in all 695,717, while eight other Senators would represent constituencies numbering in all only 349,156. The county of Saginaw is given two Senators, although it contains a population of only 82,273. The twenty-seventh district is composed of nine counties, with a population of 97,330, while the twenty-ninth, with eight counties, five of which adjoin a like number of counties of the twenty-seventh, contains a population of only 40,033.
The relator is a citizen and an elector in the seventh district, composed of the counties of Kalamazoo, St. Joseph, and Branch, with a population of 91,420, and prays for the writ of mandamus to restrain the respondent, the Secretary of State, from giving notice of the election of Senators under the act of 1891, and to compel him to give notice under the apportionment act of 1885. The petition also contains a prayer for general relief. The basis upon which relief is sought is that the power delegated by the above provisions of the Constitution to rearrange the senatorial districts is limited; that this limitation was wholly disregarded by the act in question, and the act is therefore unconstitutional and void.
It appears conceded by the learned Attorney General that the Legislature is not in the exercise of a political and discretionary power when acting under these constitutional provisions, for which it is only amenable to the people, and that this Court has jurisdiction, in a case properly before it, to determine the constitutionality of the act in question. The Constitution of this State provides:
“The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo war ranto, procedendo, and other original and remedial writs* and to hear and determine the same. In all other cases-it shall hare appellate jurisdiction only.”
The general jurisdiction of this Court to determine the constitutionality of legislative enactments is not limited so as to exclude laws involving political rights. The constitution of Wisconsin, in conferring jurisdiction upon its supreme court, is nearly identical in language with the Constitution of this State. The supreme court of Wisconsin has recently most ably and thoroughly discussed and determined the jurisdiction of the court in a case similar in principle and its facts to the present one. State v. Cunningham, 81 Wis. 440 (51 N. W. Rep. 734). The authorities in support of the jurisdiction are there collated, and citations made from them. Were the power conferred^ upon the Legislature one of absolute discretion, then the'] express mandate, “ shall rearrange according to the number j of inhabitants,” would be void of any' force or meaning* ( except that it might be regarded as expressive of the opinion of the framers of the Constitution that such method would be equitable and fair. We have no doubt| of the jurisdiction of the Court.
But it is insisted by the Attorney General that, inasmuch as the relator is a private citizen, having no interest in the matter above every other citizen, he has no standing in court, because, prior to filing his petition, he made no application to the prosecuting attorney of his county, the Attorney-General, or other public officer, to apply to this Court for a mandamus touching the matter here at issue. In support of this claim he cites People v. Regents, 4 Mich. 98 ; People v. Inspectors of State Prison, Id. 187; People v. Green, 39 Id. 121; People v. Supervisors, 38 Id. 423.
In People v. Regents the application was to compel the regents to appoint a professor of homoepathy in the medical department of the University. The Court expressed its ■conviction that that was a case in which the action of the Attorney General would have been proper and necessary, .at the same time saying:
“We do not intend to say that a case may not arise in which this Court would allow an individual to file such a •complaint, particularly if the Attorney General were absent, ’•or refused to act without good cause.”
In People v. Inspectors of State Prison a private citizen applied for the writ of mandamus to restrain the respondents from teaching to convicts in the State prison the mechanical trade of wagon-making. The main question was disposed of upon its merits, the Court expressing some doubt whether the relator had such clear legal right and special interest as to entitle him to make the application.
In People v. Green the application was to compel the county clerk and register of deeds to keep his offices at a •certain place, he claiming that the county-seat had been lawfully removed. Relator’s convenience in having access to the offices was the ground of his petition. It was held that he had shown no such special interest as to authorize him to proceed without application to the proper public officer.
In People v. Supervisors the application was to compel the allowance of claims alleged to be owing from the county to the city. The city authorities were, of course, the proper parties to institute the proceedings.
In People v. State Auditors, 42 Mich. 422, this precise ■objection was made, and the Court said:
“In the present case the officer whose duty it usually is to enforce the rights of the State in this Court has, in the performance of his official functions as adviser of the State •officers, placed himself in an adverse position, and appears for the respondents on this application.”
The present case comes directly within that decision. The law does not require unnecessary things to be done. When the Attorney General appears for a respondent, it certainly follows that he is adverse to the position of the relator, and that an application on the part of the relator to him to commence the proceedings would be met with a non-compliance. This Court, as appears from the authorities above cited, has taken care to prevent officious inter-meddling by the use of this discretionary writ, and at the same time has swept away technicalities where public interests are involved and prompt action is necessary. We have quite uniformly overruled this objection in cases of' the latter class.
The unconstitutionality of the act is clear. The county; of Saginaw, with only 16,839 inhabitants in excess of the ratio, is divided into two senatorial districts, one having 25,707 less than the ratio, and the other having 22,888 less than the ratio. There is no basis, constitutional or otherwise, for such an apportionment. It is contemplated by the Constitution that the ratio shall govern so far as is practical. This is apparent from the provision that—
“ Each county hereafter organized, with such territory as may be attached thereto, shall be entitled to a separate Bepresentative when it has attained a population equal to a moiety of the ratio of representation.”
The Constitution of the United States provides that—
“The number of Bepresentatives shall not exceed one for every 30,000, but each state shall have at least one Bepresentative.”
Under the first census, which showed the total number of free persons, with three-fifths of the slaves, to be 3,606,-397, Congress fixed the number of Bepresentatives at 120, being one for every 30,000. In the apportionment, Massachusetts was entitled to 15 Bepresentatives, with an excess of 25,327, for which she was given an additional Bepresentative. Other states with a similar large excess were treated likewise, .while those states which had a small excess received no additional representation therefor. President Washington, by the advice of Jefferson, Randolph, and Madison, vetoed the bill as unconstitutional, giving the following reasons:
“First. The Constitution has prescribed that Representatives shall be apportioned among the several states according to their respective numbers; and there is no one proportion or divisor which, applied to the respective numbers of the states, will yield the number and allotment of Representatives proposed by the hill.
“Second. The Constitution has also provided that the number of Representatives shall not exceed one for every 30.000, which restriction is by the context and by fair and obvious construction to be applied to the separate and respective numbers of the states, and the bill has allotted to eight of the states more than one for every 30.000. ”
A county having an excess of only about one-fourth of the ratio is not, in the language of the Constitution, " equitably entitled to two or more Senators,” while one district composed of nine counties, and containing nearly two and a half times the population of each district into which the former county is divided, receives but one Senator. Equity has no definition applicable to such a case. It was' never contemplated that one elector should possess two or three times more influence, in the person of a Representative or Senator, than another elector in another district.. Each, in so far as it is practicable, is, under the Constitution, possessed of equal power and influence. Equality in. such matters lies at the basis of our free government. It is guaranteed, not only by the Coiistitution, but by the. ordinance of 1787, organizing the territory out of which, the State of Michigan was carved. State v. Cunningham, supra.
Aside from considerations of equity and justice, it is apparent that the framers of the Constitution understood that a county, to be entitled to two Senators, must have a ratio and a moiety of a ratio of population. Constitutional Debates of 1850, pp. 113, 119, 123, 361, 368, 374, 376.
The State cannot be divided into senatorial districts with mathematical exactness, nor does the Constitution require it. It requires the exercise on the part of the Legislature of an honest and fair discretion' in apportioning the districts so as to preserve, as nearly as may be, the equality of representation. This constitutional discretion was not exercised in the apportionment act of 1891. The facts themselves demonstrate this beyond any controversy, and no language can make the demonstration plainer. There is no difficulty in making an apportionment which shall satisfy the demand of the Constitution.
It is not the purpose or province of this Court to inquire into the motives of the Legislature. Courts will not discuss the motives of legislative bodies except as they appear in the public acts or journals of such bodies. The validity <of an 'act does not depend upon the motive for its passage. The duty of a court begins with the inquiry into the constitutionality of the law, and ends with the determination of that question.
The petition prays that the respondent be directed to give notice of the election under the apportionment act of 1885. The constitutionality of this act is therefore directly involved in the controversy, unless it be held to be removed from question by the fact that the people have acquiesced in its validity by acting under it for three elections. It must be conceded that this act is affected with .the same constitutional infirmity as the act of 1891. It is unnecessary to determine whether such infirmity exists to an equal or a greater or less degree. It is sufficient to say that it is not in accord with the Constitution, and for the same reasons which apply to the act of 1891. It is therefore insisted with great force by the Attorney General that no election should be ordered under the former act, and he also urges in consequence that no relief can be granted. It is also said by him that, so far as he has examined other apportionment acts, they are all subject to the same objection. Under this reasoning it would follow that, if the act of 1891 is held to be void, there is no remedy, except the Executive of the State decides to call a special session of the Legislature. In such case there would be no apportionment law under which the people might elect a Legislature. While the Constitution requires the Legislature to rearrange the districts at the next session after each enumeration, yet we are of the opinion that each apportionment act remains in force until it is supplanted by a subsequent valid act. It was my opinion that the respondent should be directed to give notice under the act of 1885, inasmuch as the people have acquiesced in its validity by so long acting under it. But I yield my opinion to that of my brethren, who are of the opinion that the notice should be given under the law of 1881, the validity of which is not here brought in controversy, unless the Executive shall call a special session of the Legislature.
Our conclusions therefore are:
1. The petition is properly brought into this Court by the relator.
%. The Court has jurisdiction in the matter.
3. The apportionment acts of 1891 and 1885 are unconstitutional and void.
4. The writ of mandamus must issue, restraining the respondent from issuing the notice of election under the act of 1891, and directing him to issue the notice under the apportionment act of 1881, unless the Executive of the State shall call a special session of the Legislature to make a new apportionment before the time expires for giving such notice. No costs will be allowed.
Long and Montgomery, JJ., concurred with Grant, J. | [
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] |
Montgomery, J.
This is an action upon a policy of insurance issued to the plaintiffs.
The only defense interposed in this Court is an alleged misrepresentation. in regard to the title. The application upon which the policy was written contains the folloAving questions and answers:
“Q. Are you the absolute owner of the real estate?' Number of acres in farm?
“A. Yes. One hundred and seventy acres.
“Q. Is the deed in your name?
“A. Yes.
“Q. Are you the absolute owner of the personal property to be insured?
“A. Yes. ”
That the insured had an insurable interest in the property is not questioned. It is also found as a fact that the company, by its agent who issued the policy and who-took the application, was fully cognizant of the true state of the title, and after a full statement to him, and under his advice, the plaintiffs accepted the policy. Dnder these circumstances, the company is estopped from asserting that it was misled by the statements contained in the application. Crouse v. Insurance Co., 79 Mich. 249; Kitchen v. Insurance Co., 57 Id. 135; Westchester Fire Ins. Co. v. Earle, 33 Id. 143.
It is claimed, however, that as the application contained the statement that “the applicant hereby declares and warrants that the above answers and statements are true. and that no statement contradictory to the above was made to or by the agent of the company, and he agrees that this declaration shall be the basis and form part of the contract or policy between the insured and the company," the plaintiffs are not in a position to insist that the company is estopped. This provision is the same as that considered in the case of Beebe v. Insurance Co., ante, 514, which case rules the present.
The judgment will be affirmed, with costs.
The other Justices concurred. | [
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Long, J.
The respondent, in September, 1887, was convicted in the circuit court for the county of Menominee of the crime of manslaughter, and sentenced to the Detroit House of Correction for the period of 13 years. The information charged her with the murder of her husband, Alfred Peterson, on January 30, 1887, at Baldwin, in the county of Delta. Two trials were had before a jury in Delta county, and in each trial the jury disagreed. Upon application of the prosecuting attorney of Delta county, the circuit judge of that county granted a change of venue to the county of Menominee.
The first question upon this record is whether or not the court had jurisdiction upon the application of the State to grant the order transferring the case out of that county into another county for the purpose of trial. The showing made for a change of venue was that two trials had been had in Delta county, in each of which the jury had disagreed. This was made to ajipear by the affidavit of the prosecuting attorney, and he further stated, as shown by the affidavit, as follows:
“ That the murder which the said respondent is charged with having committed was, and still is, a subject of deep interest to the people of said county; that the papers in said county, of which there are three, have discussed the alleged facts from time to time more or less fully; that the trials of said cause already had have attracted the attention of the people -generally; that the citizens of the county have attended each of the trials in large numbers; that the facts and circumstances in said cause are so well known and have been so fully discussed by the inhabitants of the county, and more especially by the inhabitants of the city of Escanaba, the county-seat of said county, that the deponent believes it will be impossible to obtain a fair and impartial jury in said county to try said cause.”
It cannot be said but that the question rested within the sound discretion of the trial court to judge and determine the sufficiency of this showing for a change of venue, if, under the Constitution and statutes of the State, the court has the right, without the consent of the respondent, in a criminal prosecution, to change the venue and transfer the trial into another county from that in which the offense is charged to have been committed. The Constitution of this State, by sections 27, 28, art. 6, provides:
“ Sec. 27. The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties,” etc.
“ Sec. 28. In every criminal prosecution, the accused shall have the right to a speedy and public trial, by an impartial jury. * * *”
It will be observed that our Constitution contains no express provision as to the place of trial of offenders, as do the constitutions of some of the other states. The constitution of Wisconsin provides that persons accused of crime shall be entitled to—
“A trial by an impartial jury of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law.”
It was held by the supreme court of that state in Wheeler v. Stale, 24 Wis. 52, that a change of venue could not be granted by the court against the objection of the respondent.
The question has never before arisen in this State. It was said, however, in Swart v. Kimball, 43 Mich. 449, by Mr. Justice Cooley: “It has been doubted in some states whether it was competent even to permit a change of venue, on the application of the state, to escape local passion, prejudice, and interest;” citing Wheeler v. State, supra. Mr. Justice Cooley, however, remarked in the same case, after the statement above quoted: “This may be pressing the principle too far.”
There can be no doubt that it was the intent of the framers of the Constitution of this State, in providing that “the right of trial by jury shall remain,” that such right of trial by jury was to remain as complete and certain as the right existed at the common law. The Legislature, in defining the powers of the several circuit courts, provided that “ each of the said courts, upon good canse shown, may change the venue in any cause pending therein, and direct the issue to be tried in the circuit court of another county,” etc. It is provided by the same section of the statute that the court to which such cause shall be removed shall proceed to hear, try, and determine the same, but that, in criminal cases so transferred, the court awarding sentence shall direct that the defendant be imprisoned in the common jail of the county in which the prosecution commenced. It is further provided by the same section of the statute:
“And, when there shall be a disagreement of the jury on the trial of any criminal cause in the circuit court to which such cause was ordered for trial, the circuit judge before whom the same was tried, if he shall deem that the public good requires the same, may, upon cause shown by either party, order and direct the issue to be tried in the circuit court of another county in the State.” How. Stat. § 6468.
It will be seen that by this statute the circuit courts are authorized to award a change of venue in all cases upon cause shown. This statute is but declaratory of the common-law power vested in the circuit courts of this State. It is said by Bishop, in his work on Criminal Procedure, that the change of venue is usually ordered on application of the prisoner, first giving notice to the prosecuting officer, and then supporting the application by affidavits; but it may equally be ordered, in the absence of any provision of written law to the contrary, when applied for by the representative of the government. 1 Bish. Crim. Proc. § 73. In support of this doctrine are cited People v. Webb, 1 Hill (N. Y.),179; People v. Baker, 3 Parker, Crim. R. 181. In People v. Webb, supra, it was held that a change of venue might be awarded by the court on application of the state, on motion of the public prosecutor, if it appeared that a fair and impartial trial could not be had in the county where the indictment was found. We think it is well settled that, where there is no constitutional provision fixing the vicinage within which the trial must be had, the rule of the common law must prevail, unless changed by statute, and that under their common-law powers the circuit courts have the right, upon cause shown, to change the venue upon the application of the people. The court was not in error, upon the showing made, in directing a change of venue for the trial to the county of Menominee.
It appeared upon the trial that the respondent, for several years before her marriage, had led a somewhat irregular life, and was, until within a short time previous to her marriage, an inmate of a house of prostitution at Escanaba and other places. She married the deceased in the fall of 1886, and lived in Escanaba two or three months, and about two weeks previous-to the homicide went to live with her husband in the house of one Peter M. Peterson, some four miles from Brampton, where the deceased had work. On the night the homicide was committed the only inmates of the house were Peter M. Peterson, the respondent, and her husband. Mrs. Peterson and her husband slept in a bedroom below, Peterson sleeping on the floor above. The deceased was killed about 5 o’clock in-the morning by a blow from an axe or some other sharp instrument upon the side of his head, leaving a wound extending from the - right eye to his ear. Peter M. Peterson was one of the principal witnesses in the case. His testimony tended to show that the respondent and her husband had been drinking the night before, the respondent becoming considerably intoxicated and quarrelsome, her husband having some difficulty in controlling her; that in her drunken frenzy in the evening she had threatened her husband with violence; that respondent and her husband slept together in the same bed, and during the night witness had been frequently disturbed and kept awake by their quarreling; that about 5 o’clock in the morning the respondent called to him for help, claiming that her husband had done away with himself; that, upon descending to the room below, he found Alfred Peterson with the wound upon his head, as above described, in a dying condition, and the respondent with her night-dress bespattered with blood; that he returned to his chamber for his clothing, intending to summon assistance, — as importuned by the respondent to do, — and when he descended found that the respondent had left the house, and gone to a neighbor’s, and accused him of the crime. The axe with which the blow was evidently struck was found subsequently where it had been thrown into the snow some distance from the house.
The respondent was sworn as a witness in her own behalf upon the trial, and testified that during the week previous to the homicide Peter M. Peterson had importuned her to leave her husband, get a divorce, and then live with him; that he had made her several presents during ■the week, which upon the night before the crime she had shown to her husband, and over which her husband and Peter M. Peterson had had some words, and her husband had threatened to do Peterson some injury. Her testimony in reference to the. killing of her husband is that she was awakened about 5 o’clock in the morning by Peter M. Peterson; that he stood beside her, pressing a knife against her throat; that he struck her with the knife on the chin; that she then crawled under the bed-clothes, and rolled off the side of the bed, Peter M. Peterson still striking at her with the knife; that when she got from under the bed she put her hands upon her husband’s legs, and said to him, “Get up, Alfred, quick;” that he turned his head over, and, as he did so, he raised his hands, and said, “Get me a handkerchief;” that she then took her nightdress, and put it up to his face, when Peter M. Peterson said, “I will go up-stairs, and get my revolver and finish you;” and as he started to go she ran out of the door, and went to a neighbor’s.
After the respondent’s arrest she was taken to the county jail, where it is claimed she made certain statements in reference to the occurrence at her house that night, which it is claimed are contrary to her testimony given upon the trial. Witnesses were called who detailed these several conversations had with her, and which tend strongly to contradict the theory of her defense. It was also shown upon the trial that she had a conversation with one Mrs. Warne, who had charge of the woman’s department at the jail, while respondent was awaiting her trial. Mrs. Warne testified at some length to these conversations and statements of Mrs. Peterson to her, concerning how the tragedy occurred. The court, in reference to this testimony of Mrs. Warne, in his general charge, stated to the jury:
“ It is claimed by the people that this respondent, shortly after her arrest, made statements in regard to this transaction which are inconsistent with the story she now tells in court. Any statements made by the respondent voluntarily are very important for you to consider. If she made the statements as testified to by Mrs. Warne, it is, of course, a virtual admission of the killing of her husband; if she did not, of course, that testimony goes for naught.”
It is insisted upon the argument here that the testimony of Mrs. Warne did not warrant the court in directing the jury that such testimony, if believed, was a virtual admission by respondent of the killing of her husband; that the statements made by the respondent to Mrs. Warne, taken as a whole, did not amount to a confession of guilt; and that, therefore, the 'respondent’s case was prejudiced before the jury by the remark of the court. The essential part of the testimony of Mrs. Warne, in reference to this claimed confession, is as follows: She was asked the question:
“-What did she tell you?
“A. ‘Well, nobody saw me when I struck the blow. How are they going to prove it against me? I guess I am all right, as they didn’t see me do it.’ ”
This was on her direct examination. On her cross-examination she was asked why she had not made this statement on the former trials, and she responded that the question was not asked her. It appeared that she was examined on the former trials, and gave testimony as to various conversations she had had with the respondent, and made no mention on those trials of this claimed confession. On her cross-examination in the present case the following occurred:
“Q. Now, Mrs. Warne, have you attempted to give to the jury the very words she said, — ‘No one saw me when I struck the blow?’
“A. I think, just as near as I can possibly recollect, and I think I recollect that all right.
“Q. You have frequently spoken of it since, have you?
“A. Well, I didn’t speak of it at all until they called my attention to it afterwards. I say they didn’t ask me to swear to it.
“Q. Did she use those words, ‘No one saw me strike the blow, and how are they going to prove it against me?’
“A. She said to me—
“Q. Just answer my question. Did she use those words?
“A. I think she did; I can repeat them, if you wish me to.
“Q. Just answer my question. ‘No one saw me strike the blow, and how are they going to prove it against me?’ ■ Did she use those words?
“A. Yes, sir.
“Q. Just exactly? I want you to be positive about the exact words which she said; go on and repeat the words.
“By the Court: Are those the exact words she used, Mrs. Warne?
“A. Yes, sir.
“Q. ‘And how are they going to prove it against me?’ Those are the exact words?
“By the Court: That was in the other question. Did she say that?
“A. Yes, sir.
“Q. ‘I guess I am all right, for they cannot prove it when no one saw me do it?’
“A. Yes, sir.
“Q. Is that all she said to you about that?
“A. Well, it might not have been all she said.
“Q. Is that the language she used when she told you?
“A. That is the language she used when she told me.
“Q. There is not another word in it than what you have related just now?
“A. I couldn’t say there was not another word in it.
“Q. But that is all, isn’t it?
“A. That is all; yes, sir.’’
This is the substance of the testimony given, which the court directed the jury was a virtual admission of the killing of respondent’s husband.
Deliberate confessions of guilt are among the most effectual proofs in the law. Their value depends on the supposition that they are deliberate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience. Such confessions, ■so made by a prisoner to any person at any moment of time and at any place subsequent to the perpetration of the crime, and previous to his examination before a magistrate, are at common law received in evidence as among proofs of guilt. “ But,’’ says Mr. Greenleaf in his work on Evidence, “ the evidence of verbal confessions of guilt is to be received with great caution; for, besides the danger of mistake from the misapprehensions of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind ■of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear to make an untrue confession.” 1 Greenl. Ev. § 214.
With these rules in mind, and the danger there may be, as pointed out, in the misuse of words and the failure of the party to express his own meaning, we may well examine these statements with care. Taking the claimed confession as first stated by Mrs. Warne, it is very doubtful that the respondent intended to be understood by Mrs. Warne as confessing her complicity in the killing of her husband. The statements of the respondent to Mrs. Warne, just prior to the use of these words, tend strongly to show that she did not intend to convey that impression to the mind of the witness. According to Mrs. Warners testimony, the respondent had charged the crime upon Peterson. She stated to her that when she was awakened from her sleep Peterson stood by the bed striking at her with a knife; that he had an axe in his hands, and was chopping her husband; that she crawled under the bed-clothes, when Peterson stabbed, at her through the bed-clothes, and she got under the bed, and when she came out she found her husband bleeding from the wound in his head. It was in this connection that Mrs. Warne testifies the confession was made. It is impossible to believe that the respondent intended by the language employed by .her, — even if she used the language stated by Mrs. Warne in her direct examination, — to be understood as saying that she killed her husband, but rather that, as no one saw her do the act, it could not be proved against her.
But the question does not need to rest there. On Mrs. Warned cross-examination she entirely changes the testimony, and, if the true version was there given by her, the language is entirely stripped of its incriminating character. That language is: “I guess I am all right yet, for they cannot prove it when no one saw me do it.” These statements must all be taken together, and, when so considered, they fall far short of a confession of guilt. The rule above stated may well be applied to this case, and the court should not only have directed the jury to take them with great caution, but should have directed the jury that the claimed confession to Mrs. Warne could not be taken as a. confession of guilt.
It appears that, after the murder was committed, the axe with which it was done was found thrown some considerable distance into the snow. There were no tracks leading very near to it, the proofs showing that it might have been thrown from one part of the path from the house, or from another. It was contended that the distance was so great that the respondent could not have thrown it there. Experiments were made by different parties in throwing it, and this was shown by testimony introduced before the jury. Upon this the respondent’s counsel asked the court to instruct the jury:
“If the axe was thrown such a distance as they are satisfied that the defendant could not throw it, then that •should satisfy them that the defendant is not guilty.”
This instruction was refused, but the court directed the jury that they should weigh such testimony, “for, if it were impossible for the one who committed that deed to throw the axe that far, it would be a strong circumstance do show that the party was not guilty.”
Every circumstance developed on the trial showed that the person who committed the crime, actually did throw the axe. It was shown no other could have thrown it away; .and, if the jury were satisfied that the respondent could not have thrown it where it was found, they were bound to acquit. It was something more than a strong circumstance. It was conclusive proof, by the facts developed upon the trial, that the respondent could not have been guilty of the offense if she could not have thrown the axe where it was found. The court was in error in refusing this request.
These are the only errors we find in the record..
The conviction and sentence must be reversed, and a new trial ordered.
Morse, C. J., McGrath and Montgomery, JJ., concurred. Grant, J., did not sit. | [
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McGrath, J.
This action is upon a Michigan standard policy, which contains the following provisions:
“The sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. **********
“ If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, * * * and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement” ordinarily denominated “proofs of loss.”
“ The loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company.”
The policy contains a number of other distinct paragraphs limiting the liability of the company. One provides that the entire policy shall be void if the insured has concealed or misrepresented any material fact, or if he has misrepresented his interest, or in case of any fraud or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after the loss; another declares that the entire policy shall be void upon the happening of any one of 14 contingencies; another provides that “this company shall not be liable for loss” in a number of enumerated cases; another that in a certain contingency the insurance shall cease; another that the company shall not be liable for losses to certain classes of property, enumerating them, unless, etc. Then follows the provision that—
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced' within twelve months next after the fire.”
This latter provision clearly refers to such requirements in the policy as relate to the notice of loss, proofs, and adjustment of the loss; and its evident intent is to provide that no suit can be maintained unless commenced within one year, and in no event until after compliance with such requirements. The use of the words “until after” distinguishes this case from Gould v. Insurance Co., 90 Mich. 302, and brings it within the rule laid down in Tubbs v. Insurance Co., 84 Mich. 646. The effect of misstatement, of changed condition and contingency, of omission and commission, of fraud and false swearing, is explicitly declared in each other paragraph in which the act, omission, or contingency is referred to; even the effect of false swearing in the proofs of loss is specifically declared; but the paragraph relating to proofs of loss suggests no penalty. This omission in an instrument replete with clear and explicit. declarations of forfeiture is worthy of note. The presence of the declaration of forfeiture in every other instance, and its absence in this, is clearly not an oversight. Time is not made the essence of the provision relating to proofs, and in the paragraph relied upon by defendant the words “until after” import order or sequence, rather than an intent to make performance within the time specified the essence of the requirement. The selection of this phraseology seems to me inconsistent with such a purpose. The language has reference to the thing to be done before suit brought, rather than the time within which it is to be done. It is therefore unnecessary to consider the question of waiver.
Upon the other points I concur with Mr. Justice Grant, and the judgment should be affirmed, and it is so ordered.
Morse, C. J., and Montgomery, J., concurred with Mc-Grath, J. | [
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ON RECONSIDERATION
Before: MURPHY, EJ., and SAWYER and METER, JJ.
MURPHY, EJ.
Defendant appealed by leave granted the trial court’s order denying its motion for an appraisal in this action involving plaintiffs claim for insurance proceeds following a fire that damaged plaintiffs business property, which was covered by a fire insurance policy issued by defendant. Defendant had made a written demand for a binding appraisal regarding the loss pursuant to a provision in the insurance policy after the parties were unable to agree on the amount of the loss, but plaintiff viewed the policy provision as a common-law arbitration clause subject to unilateral revocation and exercised the alleged right to revoke, refusing to participate in an appraisal. The trial court agreed with plaintiff and denied defendant’s motion for an appraisal. We affirmed the trial court’s ruling in Frans v Harleysville Lake States Ins Co, unpublished opinion per curiam of the Court of Appeals (SAWYER and METER, JJ.), issued January 12, 2006 (Docket No. 255091) (MURPHY, EJ., dissenting). On defendant’s motion for reconsideration, we vacate our previous opinion and now conclude that the trial court erred in its ruling. Because MCL 500.2833(l)(m) mandates inclusion of the appraisal provision contained in the fire insurance policy at issue, and because the statutory language of MCL 500.2833(l)(m) specifically directs that “either party may make a written demand that the amount of the loss or the actual cash value be set by appraisal,” the common-law principle of unilateral revocation must succumb to the overriding legislative authority, as found in MCL 500.2833(l)(m), where the common-law principle is in conflict with the statute, which dictates that the appraisal process shall proceed on the demand of one party. Accordingly, we reverse.
Questions of law are reviewed de novo on appeal. Westchester Fire Ins Co v Safeco Ins Co, 203 Mich App 663, 667; 513 NW2d 212 (1994). The Insurance Code, specifically MCL 500.2833(l)(m), provides that Michigan fire insurance policies must contain the following provision:
That if the insured and insurer fail to agree on the actual cash value or amount of the loss, either party may make a written demand that the amount of the loss or the actual cash value be set by appraisal. If either makes a written demand for appraisal, each party shall select a competent, independent appraiser and notify the other of the appraiser’s identity within 20 days after receipt of the written demand. The 2 appraisers shall then select a competent, impartial umpire. If the 2 appraisers are unable to agree upon an umpire within 15 days, the insured or insurer may ask a judge of the circuit court for the county in which the loss occurred or in which the property is located to select an umpire. The appraisers shall then set the amount of the loss and actual cash value as to each item. If the appraisers submit a written report of an agreement to the insurer, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any 2 of these 3 shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be paid equally by the insured and the insurer.
As required by the statute, the fire insurance policy in this case contained the language regarding the appraisal process. It reads:
D. PROPERTY LOSS CONDITIONS
2. Appraisal
If we and you disagree on the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that the selection be made by a judge of a court having jurisdiction. The appraisers will state separately the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire equally. If there is an appraisal, we still retain our right to deny the claim.
Michigan case law indicates, for the most part, that appraisal clauses such as the one before us today constitute common-law arbitration agreements. Manausa v St Paul Fire & Marine Ins Co, 356 Mich 629, 633; 97 NW2d 708 (1959); Emmons v Lake States Ins Co, 193 Mich App 460, 466; 484 NW2d 712 (1992); Auto-Owners Ins Co v Kwaiser, 190 Mich App 482, 486; 476 NW2d 467 (1991); Davis v Nat’l American Ins Co, 78 Mich App 225, 232; 259 NW2d 433 (1977); but see Jacobs v Schmidt, 231 Mich 200, 203-204; 203 NW 845 (1925) (distinguishing common-law arbitration from appraisal agreements). We note that Emmons, Kwaiser, and Davis all discussed appraisals and common-law arbitration mainly in the context of an analysis relative to the appropriate standard of review applicable to common-law arbitration as opposed to statutory arbitration. The discussion of common-law arbitration in Manausa was cursory, with the Court simply noting that the arbitration statutes were not relevant when addressing an appraisal provision because the provision involved common-law arbitration. Thus, these cases narrowly addressed application of common-law arbitration principles to disputes about appraisal provisions, and, importantly, they did not involve issues regarding whether such principles control when there is statutory language to the contrary.
Pursuant to common-law arbitration principles, either party may unilaterally revoke the agreement at any time before the announcement of the award, regardless of which party initiated the arbitration. Hetrick v David A Friedman, DPM, PC, 237 Mich App 264, 268-269; 602 NW2d 603 (1999); Tony Andreski, Inc v Ski Brule, Inc, 190 Mich App 343, 347-348; 475 NW2d 469 (1991). However, neither Hetrick nor Andreski involved appraisal clauses or arbitration agreements that were mandated by statute, much less a clause or agreement that required the appraisal process to be carried out on the demand of one party.
“[W]hen common-law principles and clear statutory language conflict, the statute controls.” People v Hock Shop, Inc, 261 Mich App 521, 532; 681 NW2d 669 (2004). Here, allowing one party to unilaterally revoke the appraisal clause and terminate the appraisal process would run contrary to the parties’ specific agreement as reflected in the insurance policy, and it would directly conflict with MCL 500.2833(l)(m), which requires the policy to include an appraisal clause that provides for an appraisal process to be conducted on the demand of one party only. If one party is permitted to reject and forgo the appraisal process despite a demand to invoke the process by the other party, the language of MCL 500.2833(l)(m) would be rendered nugatory and mere surplusage; this is not permissible. Bageris v Brandon Twp, 264 Mich App 156, 162; 691 NW2d 459 (2004).
Reversed and remanded for entry of an order directing the parties to commence appraisal proceedings consistent with the parties’ agreement. We do not retain jurisdiction.
SAWYER, J., concurred.
1 To the extent that this last sentence can be read as providing defendant insurer the right to unilaterally reject the appraisal process or reject the amount determined by an appraisal, such an interpretation cannot withstand scrutiny because it is contrary to MCL 500.2833(l)(m). We view this language as merely indicating that defendant insurer need not pay a claim in the amount determined in the appraisal process on grounds other than simply a disagreement with the dollar figure arrived at in the appraisal, e.g., discovery that a homeowner committed arson. Bad faith, fraud, misconduct, or manifest mistake can also provide grounds to reject the appraisal and deny the claim. Emmons v Lake States Ins Co, 193 Mich App 460, 466; 484 NW2d 712 (1992).
We agree with the Hetrick panel’s assessment, stated in dicta, that common-law arbitration agreements should be enforced on the same terms as any other contract, thereby consigning “the unilateral revocation rule to legal history’s dustbin.” Hetrick, supra at 277.
Our Supreme Court recently reiterated that “[a] fundamental tenet of our jurisprudence is that unambiguous contracts are not open to judicial construction and must be enforced as written.” Rory v Continental Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005) (emphasis in original).
We note that our Supreme Court is currently in the process of deciding a case in which one of the issues presented is “whether common-law arbitration agreements should be unilaterally revocable.” Wold Architects & Engineers, Inc v Strat, 472 Mich 908 (2005). | [
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MARKEYj J.
Plaintiffs appeal by right the trial court’s order granting defendant’s motion for summary disposition under MCR 2.116(C)(8) and denying plaintiffs’ motion for partial summary disposition under MCR 2.116(C)(10). We hold that all plaintiffs lack standing to assert the political questions they raise in their complaint. To the extent that the individual plaintiffs have standing to allege a violation of their civil rights or the constitutional guarantee of equal protection under the law, the trial court correctly concluded that plaintiffs’ complaint failed to state a claim on which relief can be granted and that the corporate plaintiffs’ derivative claims also fail. We affirm.
I. SUMMARY OF FACTS AND PROCEEDINGS
SEMCOG is the acronym of the Southeast Michigan Council of Governments, a multipurpose regional planning commission formed under MCL 125.11 et seq. SEMCOG is composed of local units of government from Wayne, Oakland, Macomb, Livingston, Monroe, St. Clair, and Washtenaw counties; membership is voluntary. The federal government has designated SEMCOG as a metropolitan planning organization (MPO) for the purposes of planning regional transportation projects and eligibility for federal funding. See 23 USC 134 and 49 USC 5303. Plaintiffs contend that the organizational structure of SEMCOG accords the city of Detroit less voting power than the city might otherwise have because of its population as compared to that of other governmental members of SEMCOG.
In essence, plaintiffs claim that because the majority of Detroit’s residents are African-American, the dispar ate voting power of the city as a SEMCOG member violates Michigan’s Civil Rights Act (CRA), MCL 37.2101 et seq., and the Equal Protection Clause of the Michigan Constitution, Const 1963, art 1, § 2. Plaintiffs further argue that the city of Detroit’s alleged illegal disparate voting rights cause SEMCOG to unfairly favor federal funding of road maintenance projects over federal funding of mass transit. Plaintiffs also allege that this bias against funding mass transit violates the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., and plaintiffs’ constitutional right to travel. The city of Fern-dale asserts that inadequate funding of mass transit harms its citizens, basing its claims on the alleged discriminatory structure of SEMCOG.
In its written opinion granting defendant’s motion for summary disposition, the trial court summarized the governing structure of SEMCOG as follows:
The governing structure of SEMCOG is organized into a General Assembly and an Executive Committee. The General Assembly meets at least twice annually to adopt the annual work program, annual budget, and membership fee schedules, amend by-laws, and approve regional plans. Delegates must be elected officials of the designating governmental unit. The Executive Committee (EC) is a subset of the General Assembly and is composed of 46 members. The EC is the main policy committee of SEMCOG, and it meets periodically to review regional studies and to take action on policies and legislation. With the exception of the City of Detroit, membership on the EC is primarily limited to the seven member counties of the region. Membership on the EC is not based on a one person-one vote basis but rather on a modified one government-one vote basis in which additional delegates are allocated to the most heavily populated counties and to the City of Detroit. For example, the City of Detroit is allocated three delegates on the EC for its population of more than 900,000 people. Livingston County, which has a population of less than 200,000 people, is allocated four delegates. Detroit is presently more than 80% African-American, while Livingston County on the opposite extreme is less than 1% African-American. In August 2003, the SEMCOG By-laws Committee was apparently asked to correct the under-representation of the City of Detroit. However, in October 2003, SEMCOG ratified the voting structure and refused to change the by-laws.
Plaintiffs filed their four-count complaint on November 19, 2003. In count I, plaintiffs allege that SEMCOG’s governing structure violates § 302 of the CRA, MCL 37.2302, because it discriminates against residents of Detroit on the basis of their race. In count II, plaintiffs allege that the disparate voting power accorded Detroit in SEMCOG denies African-American residents of the city the equal protection of the laws in violation of Const 1963, art 1, § 2. The city of Ferndale asserts in count III derivative claims based on the alleged racial discrimination set forth in counts I and II. Plaintiffs allege in count IV that the racial discrimination asserted in counts I and II causes SEMCOG to be biased against funding mass transit, which in turn violates the PWDCRA and plaintiffs’ constitutional right to travel. Plaintiffs contend, as stated in their brief on appeal, that “SEMCOG has a duty under the [PWDCRA] to provide for public transportation for those with disabilities” and that defendant violates plaintiffs’ constitutional right to travel by not adequately funding mass transit.
Plaintiffs identify themselves in their complaint as MOSES, Inc. (Metropolitan Organizing Strategy Enabling Strength), a coalition of faith-based nonprofit organizations operating in the Detroit and Wayne County areas; Transportation Riders United, Inc. (TRU), a Detroit-based nonprofit organization that advocates for mass transit and other transportation issues; the city of Ferndale, a member of SEMCOG; Richard Bernstein and Anthony Fillipis, persons with disabilities who reside in southeast Michigan; Phyllis Williamson and Lawrence Birchfield, African-American residents of Detroit who use public transportation; and Marcia Yakes, a Detroit resident with disabilities who uses public transportation.
SEMCOG filed its motion for summary disposition pursuant to MCR 2.116(C)(8), and plaintiffs subsequently filed their motion for partial summary disposition pursuant to MCR 2.116(C)(10). The trial court heard oral arguments on the motions and subsequently authored an opinion stating its reasons for granting defendant’s motion and denying plaintiffs’. The court entered its order accordingly on October 4, 2004.
In its opinion, the trial court first addressed count II, plaintiffs’ constitutional claim. The court reasoned that the constitutional equal protection principle of one person, one vote, i.e., that each qualified voter has a right to cast a ballot that carries a weight equal to that of every other qualified voter, does not apply when government officials may lawfully be appointed to their positions. The court relied on Sailors v Kent Co Bd of Ed, 387 US 105, 111; 87 S Ct 1549; 18 L Ed 2d 650 (1967), which found no constitutional impediment to the appointment of state or local “nonlegislative officers.” The Sailors Court determined that the board of education performs essentially administrative functions and because “the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of ‘one man, one vote’ has no relevancy.” Id.
The trial court also relied on this Court’s decision in Van Zanen v Keydel, 89 Mich App 377; 280 NW2d 535 (1979). That case considered an equal protection challenge to the appointment of commissioners to a multicounty park commission, the Huron-Clinton Metropolitan Authority (HCMA). The seven-member HCMA board consisted of two commissioners appointed by the Governor and five other commissioners, each of whom was appointed by the board of supervisors of one of the five participating counties. Id. at 379. The trial court noted that the HCMA possessed powers, including the ability to levy taxes and issue bonds, that were substantially similar to those of the board of education in Sailors. After surveying United States Supreme Court decisions applying the one person, one vote principle to state and local government, the Van Zanen Court concluded:
In short, the one person-one vote doctrine applies to state and local government units which are composed of members elected by the voters. However, a state or local government may select some government officials by appointment. And where appointment is permissible, the one person-one vote doctrine does not apply. [Id. at 384.]
Applying the principles discussed in these cases to plaintiffs’ equal protection claim, the trial court determined that it must fail because each member government lawfully appointed its representatives to SEMCOG. The trial court wrote:
In the instant case, as a limited-purpose unit of local government with the purpose of regional planning, SEM-COG’s powers and functions are substantially similar to those of the HCMA in Van Zanen or the board of education in Sailors. Moreover, SEMCOG actually lacks several of the powers possessed by the HCMA. Specifically, SEMCOG is not empowered to levy taxes, condemn private property, or issue bonds. Furthermore, although SEMCOG is empowered to allocate about $1 billion in federal transportation funds, when determining whether appointment is constitutional, the Court examines the nature of the activities in which a governmental unit is engaged, not simply the amount of money that the governmental unit is entrusted to allocate. Accordingly, the Court finds that the one person-one vote doctrine does not apply to SEMCOG.
The trial court also rejected plaintiffs’ argument that simply showing an action’s disparate effect could prove a racial discrimination claim under Michigan’s Equal Protection Clause, Const 1963, art 1, § 2. The court relied on Harville v State Plumbing & Heating, Inc, 218 Mich App 302, 318-319; 553 NW2d 377 (1996), which held that Michigan’s Equal Protection Clause, “like the Fourteenth Amendment, prohibits only intentional or purposeful discrimination.” Thus, “disparate effect, alone, is insufficient to demonstrate a violation of [Const 1963,] art 1, § 2.” Harville, supra at 319. The trial court ruled that plaintiffs had merely alleged that SEMCOG was aware of the racial demographics of the area but took no action to alter its structure. The trial court determined that such “allegations [are] insufficient to show intentional discrimination because they do not address the possible motivational basis for SEMCOG’s actions or inactions.” Thus, the court concluded that plaintiffs had failed to state a claim for relief in count II because they did not allege intentional or purposeful racial discrimination.
The trial court next determined that plaintiffs had failed in count I to state a claim of racial discrimination in violation of § 302 of the CRA, MCL 37.2302. Plaintiffs MOSES, TRU, Yakes, Williamson, and Birchfield brought this claim, but only the last two plaintiffs claimed to be members of the protected class, African-American residents of Detroit, so the trial court dismissed the CRA claims of the other plaintiffs.
Regarding the merits of plaintiffs’ CRA claims, the trial court recognized that a § 302 discrimination claim could successfully be established either by showing purposeful discrimination or by showing disparate impact, citing Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538-539; 470 NW2d 678 (1991). But the court determined that plaintiffs neither pleaded nor factually supported a claim of intentional discrimination because, “[a]lthough plaintiffs have provided demographic data regarding the racial composition of Southeastern Michigan, that alone is insufficient to show that defendant has had a predisposition to discriminate against members of a protected class.” With respect to plaintiffs’ disparate impact claim, the trial court found that SEMCOG’s voting structure is facially neutral and that plaintiffs had “not shown how this facially neutral practice burdened African-Americans more harshly than members of other racial groups as required to show a disparate impact.” Further, the trial court ruled that plaintiffs had “failed to plead any causal connection between the voting structure of SEMCOG and the underdevelopment of mass transit.” Accordingly, the trial court ruled that plaintiffs had failed in count I to state a claim of racial discrimination under § 302 of the CRA for which relief could be granted.
Next, the trial court addressed the claims of plaintiffs Bernstein, Fillipis, Williamson, and Yakes, who assert in count IV of plaintiffs’ complaint that the racial discrimination alleged in counts I and II causes institutional bias by SEMCOG against funding mass transit, which in turn violates the PWDCRA by denying plaintiffs their civil right to “full and equal utilization of public accommodations, [or] public services,” and denying plaintiffs their constitutional right to travel. The trial court observed that only Bernstein, Fillipis, and Yakes alleged any form of disability, but these plaintiffs failed to allege that their disabilities are unrelated to their ability to utilize and benefit from mass transit. Accordingly, citing Miller v Detroit, 185 Mich App 789, 792; 462 NW2d 856 (1990), the trial court ruled that plaintiffs had failed to state a claim on which relief could be granted.
The trial court also found that plaintiffs had failed to state a claim on which relief could be granted with respect to their constitutional right to travel. The trial court observed that in Shavers v Attorney General, 402 Mich 554, 613 n 37; 267 NW2d 72 (1978), our Supreme Court noted that “[t]he right to travel protects movement in the sense of migration, not the individual’s choice of a particular means of transportation.” Because plaintiffs “failed to allege in their complaint that SEMCOG’s action or inaction in planning for or allocating funding for mass transit in Southeast Michigan has deprived plaintiffs of a right to migrate,” the trial court ruled that “plaintiffs have failed to state a claim of violation of their right to travel... .”
The trial court next determined that the claims the city of Ferndale alleged in count III of plaintiffs’ complaint must be dismissed because they “substantially mirror the claims of Counts I and II,” which the court had already determined failed to state a claim for which relief could be granted.
The trial court declined to address the merits of plaintiffs’ motion for partial summary disposition because it had already ruled that all of plaintiffs’ claims lacked legal merit. Except as noted, the trial court did not address defendant’s argument that plaintiffs lacked standing.
n. STANDARD OF REVIEW
We review de novo several questions of law presented in this appeal, including whether plaintiffs have standing and the interpretation or application of statutes and constitutional provisions. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004); Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). We also review de novo the trial court’s decision on a motion for summary disposition. Carmacks Collision, Inc v Detroit, 262 Mich App 207, 209; 684 NW2d 910 (2004).
A party’s motion for summary disposition brought under MCR 2.116(C)(8) tests the factual sufficiency of a claim on the basis of the pleadings alone. A court must grant the motion when no factual development could justify the asserted claim for relief. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004).
III. STANDING
Defendant observes that although the alleged under-representation of the city of Detroit in SEMCOG is central to plaintiffs’ claims, the city has chosen for rational reasons not to join plaintiffs’ lawsuit. Defendant argues that plaintiffs lack standing. Defendant asserts that the general rule of standing applies to plaintiffs: a party lacks standing to vindicate the constitutional rights of a third party. People v Rocha, 110 Mich App 1, 16-17; 312 NW2d 657 (1981). In addition, citing Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 633; 537 NW2d 436 (1995) (opinion by WEAVER, J.), defendant contends that plaintiffs lack standing because SEMCOG’s structure and actions have not adversely affected plaintiffs’ interests in a manner different from the manner in which the interests of the public at large are affected. To have standing, a party must demonstrate more than the ability to vigorously advocate; the party must also demonstrate it has a substantial interest that will be detrimentally affected in a manner different from the interests of the public at large. Id.
In summary, defendant argues that plaintiffs cannot establish the elements necessary to demonstrate standing; therefore, they cannot raise the claims asserted in their complaint. According to defendant, plaintiffs (1) have suffered no harm greater than that to the public at large, (2) lack a substantial relationship to the city to permit their vicariously asserting any rights the city may have but would be unable to assert, (3) have failed to substantiate an “injury in fact,” and (4) have failed to demonstrate that a proposed remedy — increased voting power of the city as a member of SEMCOG — would result in greater funding of mass transit.
Plaintiffs, of course, disagree. Plaintiffs contend they have standing to bring a declaratory judgment action testing SEMCOG’s structure, citing House Speaker v Governor, 443 Mich 560, 572-573; 506 NW2d 190 (1993). In House Speaker, our Supreme Court held that the nonprofit corporate plaintiffs, the Michigan United Conservation Clubs and the Michigan Environmental Protection Foundation, had standing under MCR 2.201(B)(4) to contest the alleged illegal expenditure of state funds resulting from the Governor’s executive order creating a “new” department of natural resources.
Plaintiffs also argue they satisfy the three-part test for standing stated in Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 739-740; 629 NW2d 900 (2001), citing Lujan v Defenders of Wildlife, 504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992). The Lujan Court articulated that to have standing (1) a plaintiff must have suffered “an injury in fact,” that is, an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct at issue; and (3) it must be likely that the injury will be redressed by a favorable decision. Id. Plaintiffs argue they satisfy this test for standing because (1) the “injury in fact” is that the voting structure of SEMCOG effectively silences “those with the greatest transportation issues . . . ”; (2) a casual connection exists between the voting structure of SEMCOG and a diminished voice for Detroit residents, 85 percent of whom are African- American; and (3) the court can remedy the problem by ordering SEMCOG to increase the number of votes accorded to Detroit.
We agree with defendant: plaintiffs lack standing. In general, standing requires more than having a “personal stake” in the outcome of litigation sufficient to ensure vigorous advocacy. It requires “ ‘one [to have] in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy.’ ” Bowie v Arder, 441 Mich 23, 42; 490 NW2d 568 (1992), quoting 59 Am Jur 2d, Parties, § 30, p 414 (1987 ed). Thus, to have standing, a plaintiff must demonstrate that his or her substantial interest will be detrimentally affected in a manner different from the citizenry at large. Detroit Fire Fighters, supra at 633-634 (opinion by WEAVER, J.), 643 (RILEY, J., concurring), 662 (MALLET, J., concurring in the result only). An organization will have standing to advocate the interests of its members “where the members themselves have a sufficient stake or have sufficiently adverse and real interests in the matter being litigated.” Trout Unlimited, Muskegon-White River Chapter v City of White Cloud, 195 Mich App 343, 348; 489 NW2d 188 (1992). In other words, “organizations . . . have standing to bring suit in the interest of their members where such members would have standing as individual plaintiffs.” Nat’l Wildlife, supra at 629.
However, whether a plaintiff is an individual or an association, the rule of MCR 2.201(B) nonetheless applies: “An action must be prosecuted in the name of the real party in interest. . . .” The alleged underrepresentation of the city of Detroit in relation to its population is at the core of plaintiffs’ complaint, but plaintiffs do not allege that they have been authorized to prosecute this claim on the city’s behalf. “A real party in interest is one who is vested with a right of action in a given claim, although the beneficial interest may be with another.” Rohde v Arm Arbor Pub Schools, 265 Mich App 702, 705; 698 NW2d 402 (2005). Here it is the city that enjoys the right of representation in SEMCOG’s governing structure, even though the city’s citizens may ultimately benefit from that representation through improved funding for public services. Accordingly, unless the individual plaintiffs have alleged a particularized injury to a legally protected right they individually possess rather than an injury common to the citizenry at large, they have failed to satisfy the first element of the three-part test to establish standing:
“First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly... traceable to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Nat’l Wildlife, supra at 628-629, quoting Lee, supra at 739, quoting Lujan, supra at 560-561.]
On these facts, the individual plaintiffs lack standing because they have not alleged an “injury in fact” to a legally protected interest, and the organizational plaintiffs lack standing because they have failed to allege that any of their members have suffered an injury to a legally protected interest that allows the organizations to gain standing vicariously. Nat’l Wildlife, supra at 629; Trout Unlimited, supra at 348. Plaintiffs’ claim that MCR 2.201(B)(4) creates standing here likewise fails. Plaintiffs’ complaint neither seeks to “prevent illegal expenditure of state funds” nor to “test the constitutionality of a statute relating to such an expenditure . . . .” Plaintiffs’ claims sound in civil rights, not appropriations, and therefore do not fit through this narrow loophole into standing.
We also reject plaintiffs’ argument that filing an action for declaratory relief enhances their argument in favor of standing. The declaratory judgment rule, MCR 2.605, neither limits nor expands the subject-matter jurisdiction of the courts, but instead incorporates “traditional restrictions on justiciability such as standing, ripeness, and mootness.” Associated Builders & Contractors v Dep’t of Consumer & Industry Services Director, 472 Mich 117, 125; 693 NW2d 374 (2005).
We conclude that plaintiffs here lack standing on any ground, individually and collectively.
IV “INJURY IN FACT”
A. EQUAL PROTECTION CLAIM
In count II of their complaint, plaintiffs allege that affording the city of Detroit less voting power in SEMCOG than the city’s proportionate share of population might dictate denies the city’s African-American residents the equal protection of the laws guaranteed by Const 1963, art 1, § 2. Plaintiffs apparently concede that the trial court correctly ruled that the constitutional principle of one person, one vote does not apply to SEMCOG because its constituent governmental units lawfully appoint their representatives to that body. See Van Zanen, supra at 384. Plaintiffs point to no legal authority, other than the principle of one person, one vote, by which Detroit or its citizens of whatever religion, race, color, or national origin would enjoy a legally protected right to greater representation in the governance of SEMCOG.
It is not enough for an appellant in his brief simply to announce a position or assert and error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. [Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).]
If a party fails to adequately brief a position, or support a claim with authority, it is abandoned. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Accordingly, plaintiffs have no standing to assert an equal protection claim under Const 1963, art 1, § 2 because they have failed to establish a legally protected interest that has been adversely affected.
B. RACIAL DISCRIMINATION CLAIM
Plaintiffs argue they have stated a claim of racial discrimination under the second clause of Const 1963, art 1, § 2 because the racial demographics of southeast Michigan are well known, and SEMCOG has refused to accord Detroit greater representation in its governance. We disagree.
Initially we note our agreement with the trial court that a racial discrimination claim under the second clause of Const 1963, art 1, § 2 cannot be established on the basis of a disparate effect alone. Harville, supra at 319. Moreover, this Court must follow the rule of law established by a prior published decision of this Court issued on or after November 1, 1990. MCR 7.215(J)(1); Horace v City of Pontiac, 456 Mich 744, 754; 575 NW2d 762 (1998). We also agree with the trial court that plaintiffs have simply not alleged purposeful or intentional racial discrimination on the basis of known area demographics and the refusal of SEMCOG to accord Detroit greater clout in its organizational structure. “ ‘ “Discriminatory purpose” ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker... selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.’ ” Haruille, supra at 308, quoting Personnel Administrator of Massachusetts v Feeney, 442 US 256, 279; 99 S Ct 2282; 60 L Ed 2d 870 (1979). Here, plaintiffs’ complaint, read in the light most favorable to plaintiffs, at best alleges that SEMCOG reaffirmed a course of action “in spite of” its alleged adverse impact on an identifiable group.
More important, and fatal to plaintiffs standing to assert a racial discrimination claim under either Const 1963, art 1, § 2 or § 302 of the CRA, MCL 37.2302, is that Detroit residents have no fundamental right to directly elect the city’s representatives to SEMCOG. Van Zanen, supra at 384; see, also, Moore v Detroit School Reform Bd, 293 F3d 352, 365 (CA 6, 2002) (“[CJitizens do not have a fundamental right to elect nonlegislative, administrative officers such as school board members.”). Indeed, as noted earlier, plaintiffs concede as much by abandoning any claim that the constitutional principle of one person, one vote applies to SEMCOG. Therefore, plaintiffs’ underlying vote-dilution claim fails.
Furthermore, plaintiffs’ claims are based on two more false premises. First, that the city of Detroit is entitled to greater representation in SEMCOG’s governing structure on the basis of its population. Plaintiffs have failed to support such a claim. Moreover that argument fails for the reason that Detroit’s citizens have no right to directly elect the city’s representatives to SEMCOG. Second, plaintiffs argue that Detroit is the alter ego of its residents and embodies the racial characteristics of its majority racial group. On this basis, plaintiffs argue that disparate treatment of Detroit equates to a disparate impact on or treatment of its major racial group, African-Americans. Again, plaintiffs fail to support this premise with any legal authority; consequently, they have abandoned it. Mitcham, supra at 203; Yee, supra at 406. Further, opposite authority exists. See Hearne v Chicago Bd of Ed, 185 F3d 770, 776 (CA 7, 1999) (rejecting disparate impact racial discrimination claims against Illinois legislation aimed at reforming Chicago’s school system).
Even if Detroit could assert a right to a greater voice in the governance of SEMCOG, the effect of the denial of such a right would fall equally on all of Detroit’s residents of whatever religion, race, color, or national origin. Accordingly, there is no discrimination “because of... race” either in SEMCOG’s structure or the representation accorded to Detroit. Const 1963, art 1, § 2; Harville, supra at 315-319.
Likewise, plaintiffs cannot establish either a disparate impact or disparate treatment racial discrimination claim under § 302 of the CRA, MCL 37.2302. To establish a disparate treatment racial discrimination claim, plaintiffs “must show that [at least one of the plaintiffs] was a member of the class entitled to protection under the act [here, African-Americans] and that he [or she] was treated differently than persons of a different class for the same or similar conduct.” Reisman, supra at 538. To establish a disparate impact racial discrimination claim, plaintiffs must show that “a facially neutral employment practice burdens a protected class of persons more harshly than others.” Id. at 539. But in this case, the alleged disparate treatment or disparate impact resulting from the alleged underrepresentation accorded Detroit falls equally on all of Detroit’s residents. Consequently, plaintiffs lack standing because they have not alleged “ ‘an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” ’ ” Lee, supra at 739, quoting Lujan, supra at 560.
C. PLAINTIFFS’ REMAINING CLAIMS
The plaintiffs with disabilities, in count iy and the city of Ferndale, in count III, raise primarily public policy questions regarding governmental spending priorities. As a threshold matter, because even the plaintiffs who are African-American Detroit residents lack standing to assert the alleged racial discrimination and vote-dilution claims of counts I and II, so too the disabled plaintiffs and the city of Ferndale lack standing to assert those claims. Concerning the claims relating to funding allocation in counts III and iy even if SEMCOG were ordered to change its allegedly discriminatory structure, such a remedy would not guarantee plaintiffs’ ultimate goal: increased funding for mass transit. Thus, plaintiffs also fail to satisfy the third element of the three-part test to meet the constitutional minimum requirements for standing, that “ ‘it must be “likely,” as opposed to merely “speculative,” that the injury will be “re dressed by a favorable decision.” ’ ” Nat’l Wildlife, supra at 629, quoting Lee, supra at 739, quoting Lujan, supra at 561.
Additionally, plaintiffs in count IV have failed to satisfy the first element of standing by alleging an “injury in fact” or an invasion of a legally protected interest. Article 3 of the PWDCRA prohibits the denial of the
full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation or public service because of a disability that is unrelated to the individual’s ability to utilize and benefit from the goods, services, facilities, privileges, advantages, or accommodations or because of the use by an individual of adaptive devices or aids. [MCL 37.1302(a).]
Further, the PWDCRA requires that “a person shall accommodate a person with a disability for purposes of employment, public accommodation, public service, education, or housing unless the person demonstrates that the accommodation would impose an undue hardship.” MCL 37.1102(2). Thus, when a person offers goods or services to the public, the PWDCRA imposes an affirmative duly to accommodate disabled persons if accommodation can be accomplished without undue hardship on the person offering the goods or services to the public. Id.-, Cebreco v Music Hall Ctr for the Performing Arts, Inc, 219 Mich App 353, 359-360; 555 NW2d 862 (1996). Nevertheless, nothing in the PWDCRA imposes a duty on a person, in this case a governmental agency, see MCL 37.1103(g), to provide a public service in the first instance because the service, mass transit, might benefit persons with disabilities. Consequently, plaintiffs do not satisfy the first element of standing because they have not suffered an “injury in fact” to a legally protected interest. Lee, supra at 739.
For the same reason, plaintiffs lack standing with respect to the claim involving their constitutional right to travel. The trial court correctly ruled that the constitutional right to travel does not impose on the government any obligation to provide its citizens with any particular mode of transportation. Shavers, supra at 613 n 37. “The right to travel protects movement in the sense of migration, not the individual’s choice of a particular means of transportation.” Id.
V CONCLUSION
In summary, we hold that plaintiffs lack standing because they have individually and collectively failed to allege a concrete, particularized, and actual rather than speculative injury in fact or an invasion of a legally protected interest that would be redressed by the remedies sought.
Although plaintiffs contend that the trial court erred procedurally by not allowing plaintiffs to amend their complaint or conduct further discovery, they do not suggest that the essence of their complaint would be altered if such requests were granted. Consequently, we conclude that granting a motion to amend would be futile. Ormsby v Capital Welding, Inc, 471 Mich 45, 53; 684 NW2d 320 (2004). Likewise, because further discovery would not likely uncover facts to support plaintiffs’ nonjusticiable claims, summary disposition was appropriate. See VanVorous v Burmeister, 262 Mich App 467, 478-479; 687 NW2d 132 (2004), and Peterson Novelties, Inc v City of Berkeley, 259 Mich App 1, 25; 672 NW2d 351 (2003).
In the course of reviewing whether plaintiffs have satisfied the constitutional requirement of standing by alleging an “injury in fact,” we have, like the trial court, addressed the merits of whether plaintiffs have stated claims for which relief may be granted. Generally, we agree that the trial court reached the correct result by concluding that plaintiffs have not stated claims for which relief may be granted. We will affirm the trial court when it reaches the correct result even if for a wrong or different reason. Gleason v Dep’t of Transportation, 256 Mich App 1, 3; 662 NW2d 822 (2003).
We affirm.
The trial court noted that MOSES and TRU faded to allege that they represented members of a protected class.
Defendant notes that although city residents comprise 20 percent of the population in the SEMCOG planning region, the city receives 30 percent of available federal transportation funds. Also, Detroit is the only-city member of SEMCOG with direct voting power on the executive committee.
MCR 2.201(B)(4) provides:
An action to prevent illegal expenditure of state funds or to test the constitutionality of a statute relating to such an expenditure may be brought:
(a) in the name of a domestic nonprofit corporation organized for civic, protective, or improvement purposes; or
(b) in the names of at least 5 residents of Michigan who own property assessed for direct taxation by the county where they reside.
“No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.” Const 1963, art 1, § 2.
Plaintiffs assert in their brief that “ ‘Detroit’ is a proxy for ‘African-American.’ ” | [
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PER CURIAM.
Plaintiff Titan Insurance Company appeals as of right the trial court’s order granting defendant North Pointe Insurance Company’s motion for summary disposition and denying plaintiffs motion to amend its complaint. We affirm.
I. FACTS
This action arises out of a motor vehicle accident on April 27, 2002, involving plaintiffs subrogor, who is Robert Wells, and Robert Price. Price’s vehicle collided with Wells’s motorcycle. According to the police report, Price was uninsured. In the absence of any other known insurer, plaintiff paid Wells $42,377.23 in personal protection insurance benefits.
Plaintiff attempted to contact Price numerous times, beginning on September 16, 2002, to ask him whether he had a no-fault insurance carrier. Plaintiff asserts that it had difficulty locating Price because he was no longer at the address listed on the police report. In October or November 2003, plaintiff finally learned that defendant was Price’s insurer and wrote to defendant on November 4, 2003, to confirm coverage. One of defendant’s representatives acknowledged to plaintiff that defendant’s obligation to pay had a higher priority than the plaintiffs. Defendant asserted that Price never reported the accident to it and that defendant was not aware of the accident until it received plaintiffs November 2003 notice.
Plaintiff demanded payment from defendant, arguing that it was entitled to bring this action “either one year after the date of loss or one year after learning of another insurance company, whichever is later.” Defendant denied plaintiffs request for payment on December 2, 2003, on the grounds that it was barred by the statute of limitations.
Plaintiff filed this action on March 1, 2004. Both parties filed motions for summary disposition, and plaintiff moved to amend its complaint to add a claim of mistaken payment. Plaintiff argued that the sole issue for the trial court was whether its complaint was timely filed. Defendant responded that plaintiffs claim was barred, or at least limited to recovery of damages incurred “one year back” from the date plaintiffs action was filed. Defendant admitted that there would be no prejudice if the court allowed plaintiff to amend its complaint, but argued that the amendment would “not alter the outcome” of the motions for summary disposition.
The trial court reviewed the motions under MCR 2.116(0(10) and MCL 500.3145(1). The court found that plaintiffs claim was “one of subrogation” and, therefore, the one-year period of limitations of the statute applied. The court denied plaintiffs motion to amend as futile because the one-year limitations period would apply no matter what the basis was for plaintiffs claim.
H. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
This Court reviews the trial court’s grant or denial of summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). In deciding a motion pursuant to MCR 2.116(0(10), the trial court considers the pleadings, affidavits, depositions, admissions, or other documentary evidence in a light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists. MCR 2.116(G)(2); Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). Statutory interpretation is a question of law that this Court also reviews de novo on appeal. People v Stone Transport, Inc, 241 Mich App 49, 50; 613 NW2d 737 (2000).
B. ANALYSIS
The first issue is whether the limitations period of MCL 500.3145(1) commences on the date the insurer seeking reimbursement learns of the other insurer. This primarily involves a debate over timing and whether plaintiff was on notice that there was another insurer when the accident occurred. Plaintiff argues that the cause of action was brought well within a year after it was on notice that defendant was Price’s insurer. De fendant argues that plaintiffs cause of action was fairly-dismissed as untimely because the action was not brought within one year of the accident and plaintiff “made essentially no effort to identify” or notify defendant.
MCL 500.3145(1) provides, in relevant part:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense.. . has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.
Here, the accident occurred on April 27, 2002. Plaintiff asserts that it was unable to learn that defendant was the primary insurer until October 2003, and this action was not filed until March 1, 2004. Therefore, defendant was not notified of the injury within one year after the accident, and the action was not commenced ■within one year after the date of the accident.
As the trial court explained in its opinion, because plaintiff paid personal protection insurance benefits that defendant allegedly should have paid to Wells, plaintiff was subrogated to Wells’s cause of action against defendant. Fed Kemper Ins Co v Western Ins Cos, 97 Mich App 204, 209; 293 NW2d 765 (1980). MCL 500.3145(1) applies to subrogation actions. See id. at 210. “ ‘A subrogee acquires no greater rights than those possessed by his subrogor and the subrogated insurer is merely substituted for his insured. This is true whether subrogation is equitable or conventional as in the instant case pursuant to a clause in the insurance contract.’ ” Id. (citations omitted). The trial court implicitly concluded that, because the cause of action was filed more than one year after the accident, MCL 500.3145(1) would have barred Robert Wells’s claim for benefits and, therefore, barred plaintiffs subrogation claim as well. Amerisure Cos v State Farm Mut Automobile Ins Co, 222 Mich App 97, 103; 564 NW2d 65 (1997).
Until recently, Michigan courts had not addressed the specific question of tolling when an insurer could not ascertain the identity of a primary insurer, but case law recognized that tolling principles could apply to situations involving a lack of notice of a potential claim. In Amerisure Cos, supra at 103, this Court concluded, without discussion, that the plaintiff was “required to file its subrogated claim for personal injury protection benefits within one year after the date of the accident or after the date it had notice of its potential claim against defendant, whichever was later.” (Emphasis added.) See also Michigan Mut Ins Co v Home Mut Ins Co, 108 Mich App 274, 280; 310 NW2d 362 (1981). For purposes of tolling the limitations period, the Court in Michigan Mutual Ins Co accepted “the date of plaintiffs demand for reimbursement of benefits paid” to the claimant as the date that plaintiff had notice of its claim. Id. Plaintiff argues that, because plaintiff did not learn that defendant was Price’s insurer until October 2003 and this action was filed less than one year later on March 1, 2004, equitable tolling should apply to this case and plaintiffs action should not be barred.
However, neither the trial court nor the parties had the benefit of Devillers v Auto Club Ins Ass’n, 473 Mich 562, 567, 593; 702 NW2d 539 (2005), in which our Supreme Court recently revisited the question of the proper interpretation of MCL 500.3145(1). Devillers involved a situation in which the insurer began to pay benefits one month after an accident. At issue was the interpretation of the one-year-back provision of the statute, rather than the one-year statute of limitations at issue here. Id. at 565, 574, 583, 591. After an extensive review of the history of the “judicial tolling doctrine” in insurance cases, our Supreme Court concluded that equitable tolling cannot be applied to unambiguous statutory language. The Court stated that “[t]he one-year-back rule of MCL 500.3145(1) must be enforced by the courts of this state as our Legislature has written it, not as the judiciary would have had it written.” Id. at 586. Although it was the one-year-back provision of MCL 500.3145(1) that was specifically at issue in Devillers, it is apparent from our Supreme Court’s analysis that the two provisions overlap and that judicial tolling had been applied to toll the one-year limitations period during the period between the time that an insured gave notice until the insurer denied liability. Devillers, supra at 571.
As indicated previously, MCL 500.3145(1) clearly and unambiguously states the necessary time line of an action for recovery of personal protection insurance benefits. “If the language used is clear, then the Legislature must have intended the meaning it has plainly expressed, and the statute must be enforced as written.” Hills of Lone Pine Ass’n v Texel Land Co, Inc, 226 Mich App 120, 124; 572 NW2d 256 (1997). If the plain and ordinary meaning of the statute is clear, judicial construction is not permitted. People v Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). In the instant case, it is undisputed that neither statutory exception applies, and that plaintiffs action was not commenced within one year after the accident. Plaintiff argues that equitable tolling applies in this case and that the one-year limitations period did not begin to run until plaintiff learned that defendant was Price’s insurer. The trial court correctly concluded that the statutory language was unambiguous and refused to expand it by the addition of judicial tolling principles. We agree with the trial court’s determination that plaintiff was attempting to expand the statute by adding a tolling provision and that, because the statute was unambiguous, further interpretation was not permitted.
The trial court did not err in granting defendant’s motion for summary disposition.
III. MOTION TO AMEND COMPLAINT
A. STANDARD OF REVIEW
The grant or denial of a motion for leave to amend pleadings is reviewed for an abuse of discretion. Horn v Dep’t of Corrections, 216 Mich App 58, 65; 548 NW2d 660 (1996). Leave to amend a pleading should be freely permitted when justice requires. MCR 2.118(A)(2). A motion to amend “ordinarily should be granted,” absent “particularized reasons,” including futility. Sands Appliance Services, Inc v Wilson, 463 Mich 231, 239-240; 615 NW2d 241 (2000).
B. ANALYSIS
The next issue is whether the trial court abused its discretion by denying plaintiffs motion to amend its complaint to add a count of “Recovery of Mistaken Payment.” The case on which plaintiff relies, Madden v Employers Ins of Wausau, 168 Mich App 33; 424 NW2d 21 (1988), was issued before November 1, 1990, and is therefore not binding on this Court under MCR 7.215(J)(1). Furthermore, the reasoning in Madden was rejected by Amerisure Cos, which instead adopted the reasoning of the decision in Michigan Mutual Ins Co and held that “actions between no-fault insurers for recovery of monies mistakenly paid by the secondary insurer” were claims of subrogation and subject to the limitations period in MCL 500.3145(1). Amerisure Cos, supra at 102-103. This Court also held in Fed Kemper Ins Co, supra at 210, that claims of subrogation are subject to the one-year period of limitations in MCL 500.3145(1).
As previously noted, the plain and unambiguous terms of MCL 500.3145(1) are not subject to interpretation, and the statute does not provide, as it could have, a separate limitations period in the event of mistake. See Devillers, supra at 586. Plaintiff argues it could not safely wait to make payment to its subrogor without risking that it would be penalized under the no-fault act for tardy payment. However, as this Court emphasized in Federal Kemper Ins Co, supra at 210, “the statute is clear and ‘plaintiff is an insurance company itself and is presumably well aware of the much-publicized insurance law of this state.’ ” (Citation omitted.) In light of the above case law, even if plaintiff paid the benefits by mistake, its claim is still one of subrogation and subject to the limitations period in MCL 500.3145. The trial court did not abuse its discretion by denying the plaintiffs motion to amend its complaint.
Affirmed.
Although Amerisure Cos and Michigan Mut Ins Co have been called into question by Devillers to the extent that they recognized the applicability of judicial tolling, their conclusions on the issue of subrogation claims remain valid and correct. | [
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] |
Cooley, J.
1. The first error assigned on this record is that the court refused to require the plaintiffs to fur-, nish a bill of particulars of what they expected to establish against the garnishee. As the .garnishee had already been called upon to make disclosure, and had made it, and as the dealings between him and the principal debtor must be supposed to be peculiarly within his knowledge, we do not think any such bill of particulars was a matter of right. It might be proper in some cases, but in this case nothing appears to show its importance.
2. It is objected that the court permitted the judgment against the principal debtor to be proved by the judgment entry merely. This was proper. The garnishee proceeding was ancillary to the suit in which the judgment was rendered, and the fact of pendency of that suit was already before the court. The judgment was important only as showing that a stage of the proceedings had been reached which entitled the plaintiffs to proceed to judgment in the garnishee suit, and also as fixing the limit of recovery against the garnishee.
3. The court instructed the jury in substance thdt if they found the garnishee to be indebted to the principal debtor in a sum exceeding the plaintiff’s recovery, they were not called upon to determine the exact amount of the indebtedness, but if the indebtedness was less than the recovery, they must determine it accurately. This, whether right or wrong, could not injure the garnishee. The limit to his liability was the amount of the judgment against the principal debtor; and if the jury were to undertake to fix the exact amount of a larger indebtedness, the verdict for the excess could bind neither party. The judgment rendered upon it would be limited to the amount of the principal judgment, and all questions as to the excess would still be open.
4. Complaint is made that the court awarded costs against the garnishee and refused to award costs in his favor. Had no contest been made, it would have been proper to refuse to give costs to the plaintiffs, Zimmer v. Davis, 35 Mich., 39; but in this case the liability of the garnishee was stubbornly resisted, and the judgment for costs was not unreasonable.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
This is a case in equity where the complainant seeks in aid of execution levies, to have certain transfers made by the debtor, Thomas Hurst, and also some other entanglements set aside on the ground of being fraudulent against creditors.
Besides grants made to his children, he conveyed to his wife, the defendant Elizabeth, lots one and two of Scoville & Whipple’s subdivision of part of the Loranger farm, and which were worth about $4000.
The deed was given June 14, 1875, and it stated the consideration at $4105. The conveyances to his children, which were made at the same time, embraced the residue of a' large estate and left nothing for creditors.
The cause was heard on pleadings and evidence, and the court granted the relief asked and set aside the grant to Mrs. Hurst with the others. She appealed and the only question in this court is whether upon the matters in the record the case alleged against her is made out. The case has been well presented and counsel have brought the controversy within very narrow limits.
The suit was -brought originally by Sylvester Noble, Darling the present complainant being a defendant, and the original bill filed by Noble called for answers on oath, and Mrs. Hurst so answered. Darling did not defend. Subsequently Noble conveyed his interest to Darling who proceeded to perpetuate the suit by supplemental bill in his own name, as complainant, leaving Noble out entirely. In this bill it was stated that answers upon oath were waived. In answering it Mrs. Hurst simply reaffirmed her former answer except the addition of a single fact of no present importance by way of supplement.
After setting up the proceedings at law and the several transfers, including the conveyance from defendant Thomas to his wife, the bill says: “Your orator charges upon information and belief that each and all of said conveyances and said assignment from said Thomas Hurst, were made wholly without consideration and for the express purpose of cheating, injuring and defrauding your orator and the other creditors of said Thomas Hurst, and to hinder and prevent your orator and the other creditors from enforcing their said claims against said Thomas Hurst.” Such is complainant’s case against Mrs. Hurst as charged in the bill.
The answer denies the allegation and insists that the deed was in consideration of an actual indebtedness to her from her husband of $4105.47.
The issue is plain. The complainant brings his charge and the defendant denies it.
No question has been made upon the circumstance that the bill filed by Darling after the answers on oath required by the first bill and which is made a basis of the later proceedings, calls for answers without oath; and perhaps it is not necessary to discuss this feature.
It is an elementary principle for which no authority need be cited, that he who impugns a transaction as fraudulent, which may or may not be so, is not sustained by his own assertion alone in case he is disputed, but has the burden on him to make his allegation good by independent evidence. This principle applies to the issue made up between these parties.
The necessity of establishing by sufficient evidence, the charge in the bill against the deed to Mrs. Hurst, rests on the complainant, and the answer affords him no aid. Without extrinsic facts he cannot count on inferences, because independently of such facts there is no foundation for any inferences to .sustain him.
Upon the pleadings alone it is plain the case would fail. The charge rests on information and belief, and is denied directly and positively. Hill v. Bowman, 35 Mich., 191; Allen v. Antisdale, 38 Mich., 229. Complainant has acted on this theory and has called witnesses to prove the allegation in the bill. But who are the witnesses? The two parties he charges with the very fraud in question. He makes the defendants, Thomas and Elizabeth, his witnesses to prove that the conveyance from one to the other was fraudulent.
This course is competent, but it is subject to its own risks and to those considerations which apply wherever one submits to a court to decide between him and his adversary upon the version of the latter. The whole of what is stated must be fairly considered, and while there is no rule which compels courts and juries to put aside their judgments and blindly accept whatever falls from a person on the witness stand, so there is none which sanctions arbitrary rejections of testimony.
There is no warrant in law or reason for any arbitrary discriminations, and the circumstance that a defendant on being called by complainant testifies under the influence of interest, or under imputations of wrong doing, gives no right to the complainant to accept what appears favorable to himself, and to reject or ignore whatever tends the other way. Roberts v. Miles, 12 Mich., 297; Roberts v. Gee, 15 Barb., 449; Elwood v. Union Telegraph Co., 45 N. Y., 549; Lomer v. Meeker, 25 N. Y., 361; Carver v. Tracy, 3 Johns., 427; Wailing v. Toll, 9 Johns., 141; Newton v. Pope, 1 Cow., 109; Wilson v. Wagar, 26 Mich., 452. There must be something more to justify such distinctions.
Now what do these defendants testify on being called by complainant as his witnesses ? They swear positively that defendant Thomas, was indebted to his wife in a little more than $4000, and that he conveyed the lots in satisfaction of that indebtedness. They explain the transaction in this way. Both were employed for many years in the Marine Hospital, she receiving $200 per year in monthly payments which she handed over to her husband as it was paid to her. Both swear it was agreed between them that this salary should be her money and that he should be accountable to her for it with interest, and that adding the accumulations of interest the same had grown to be $4105 and a few cents in her husband’s hands, and that the lots were transferred and accepted in payment.
This is the chief testimony the complainant offers to the court to maintain his allegation against Mrs. Hurst’s deed and prove that it was given without any consideration. Strike out the testimony of these persons and the case against her conveyance falls to the ground.
With becoming candor counsel for complainant admit that she earned and received the salary; that it belonged to her as she received it; that she passed it to the hands of her husband from time to time as it was paid to her, and that the whole with interest was equal to the value of the lots when they were conveyed. It is denied, however, that Mr. Hurst became debtor to his wife for this money, and the ground is taken that she merely put her earnings into the common purse as so much earned and obtained for the common benefit, and that neither regarded the money as her individual and separate property.
But how is complainant entitled to take this position ? It is as plain a contradiction as possible of the testimony on the precise subject, and given by those the complainant voluntarily put upon the stand to be examined on that subject. It is not countenanced by conflicting statements from other witnesses, since there are none, nor justified by the supposition that the testimony concerning Mrs. Hurst’s ownership of the salary after its being handed over to her husband is incredible or improbable, because it is neither. Hill v. Bowman, supra; Allen v. Antisdale, supra.
Even the testimony of a party who is called by his adversary to discover fraud, cannot be mutilated at the instance of the latter, when there is no better ground for it than conjecture or caprice. And what satisfactory reason can be put forth for branding as false this single feature of the particular testimony in question when the context and congruous items are acknowledged to be true? None have been stated at the bar and none are perceived. As stated already, it imports nothing unreasonable, nothing improbable. It cannot be repudiated as falsehood without good reason.
The deed is prima facie evidence of title, and there is no preliminary presumption that it is fraudulent or that it was not given for valuable and honest consideration. The law makes no original intendment of that kind. On the contrary it imputes honesty and legality and leaves it to complainant to make out by evidence the fraud and dishonesty charged. Hager v. Thomson, 1 Black, 80; Stewart v. Thomas, 15 Gray, 171; Salmon v. Orser, 5 Duer, 511; Carpenter v. Freeland, Hill & Denio Supp., 37; Gay v. Bidwell, 7 Mich., 519; Robert v. Morrin, 27 Mich., 306; Loomis v. Smith, 37 Mich., 595; Jordan v. White, 38 Mich., 253; Bigelow v. Benedict, 70 N. Y., 202; Matthews v. Coe, id., 239.
The facts adduced do not overcome the presumption and make out want of due consideration, and circumstances of mere suspicion are not sufficient. Clarke v. White, 12 Pet., 178. The conclusion on the whole case is that complainant fails to support his allegation that Mrs. Hurst’s deed is without consideration to uphold it. That part of the decree which bears against the grant to her must be reversed, and the bill as to that feature of the case must be dismissed, and she should recover her costs of this court and her own distinct and proper costs in the court below.
Campbell, C. J. concurred.
Cooley, J.
The defendants in this case have prac-. tically conceded that of the several conveyances made by Thomas Hurst, and by which he divested himself of a considerable estate on the eve of judgments against him, only one can be sustained. That one was the conveyance to Mrs. Hurst. To prove that that, like the rest, was made without consideration and in fraud of creditors, complainant put Mr. and Mrs. Hurst upon the stand, and now relies upon their evidence as making out the fraud beyond reasonable doubt. Mrs. Hurst, on the other - hand, insists that their evidence establishes for the conveyance a sufficient consideration, and that the explicit denial by her husband and herself of all fraud is conclusive upon the complainant, whose witnesses they were.
I do not understand that a party by putting his adversary upon the stand, gives any peculiar force to the testimony he shall give over that which the like testimony would have if given by other witnesses. He may preclude himself from entering upon an impeachment; but the testimony his adversary gives is subject, when received, to the same examination and construe tion with that of other witnesses. Nor are sweeping denials by him entitled to any force whatever if the facts he details show them to be unfounded.
In this case the fact that Mrs. Hurst' received for many years a small salary which was appropriated to the support of the family, is not disputed. She testifies that this salary was the consideration for the conveyance which her husband, in his emergency, long after the money had been expended for the common benefit of the family, made to her. The dispute concerns the understanding between herself and her husband' that the sums of money received by him were received as loans. The parties testify in a vague and unsatisfactory way that such was the fact; but there is ground for a fair conclusion on their own evidence that no such understanding ever existed. I am not disposed, however, to dissent from the conclusion of my brethren on the facts, while on the other hand I do not concede that on the evidence of the defendants the complainant is not entitled to show that his case is established by the facts as they detail them, notwithstanding their sweeping statements.
Marston, J., did not sit in this case. | [
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Cooley, J.
The plaintiffs filed in this case a declara tion on the special case, setting foEth that on the 12th day of October, 1875, defendant was the owner of certain real estate which he agreed to sell to the plaintiffs for the same sum of money which he had paid for it, but falsely and fraudulently pretended he had paid for it the sum of four thousand dollars; that plaintiffs agreed to buy said real estate and to pay defendant therefor what he had paid for it, and that deceived by defendant’s fraudulent representations they paid defendant the sum of four thousand dollars; that in fact defendant only paid seventeen hundred dollars for said real estate, whereby said plaintiffs- have been damnified, etc.
No doubt the pleader intended this as a count for a tort, and insisting upon it as such in the court below, judgment went against him on the ground that no cause of action was alleged. The reason was that the false affirmation relating to the price paid for the land was not one upon which the plaintiffs had a right to rely.
Had the plaintiffs insisted upon their declaration as a sufficient count for money had and received by defendant to their use, probably the ruling in the circuit court would have been different. The recital of facts shows a bargain for the lands at a price measured by the cost, and an overpayment brought about by misinformation, whereby an action arises to demand and receive back what was overpaid. A good cause of action in assumpsit might be better set forth, but the substance is here.
The judgment must be reversed and the cause remanded for trial. No costs are awarded in this court.
The other Justices concurred. | [
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] |
Campbell, C. J.
Defendant in error, Mrs. Schermerhorn, presented a claim against her father’s estate for services in taking care of her mother. Mrs. Basom, the mother, left her husband’s home in March, 1868, and in April, 1868, went to housekeeping, her daughter Mrs. Sehermerhorn going with her and continuing with her until her death in November, 1871. Frederick Basom, the husband, died in the spring of 1873. At the time of the separation he owned a farm in the township of York, Washtenaw coiinty.
The evidence tends to show that Mrs. Basom was justified in leaving her home, and there is some testimony of serious causes of grievance. Immediately after leaving her husband, on the 10th of March, 1868, she filed a bill to obtain a divorce, which, although the record is not explicit, seems to have been based on a claim of cruelty. The parties were both over 80 years old. On the 7th of April, 1868, an order for alimony was made, based on affidavits of Mrs. Sehermerhorn and Dr. Watson averring that complainant was and had been for ten years sick and needing constant nursing, 'watching and care, subject to sinking turns in which she was helpless for days, at a time, and not in condition to be left alone.
This alimony was all paid up from time to time, though not with absolute promptness.
The account of Mrs. Sehermerhorn is for her services in her mother’s behalf, rendered, as she testifies, at her mother’s request, with her mother’s assurance of payment. She testifies she never presented an account to her father, nor to any one before she filed it with the commissioners on his estate. There is testimony tend ing to show the services were such as would come within the legal definition of necessaries. And there was also testimony which would authorize a jury to find there was ground of recovery, if there had been no alimony granted in the divorce suit.
The divorce suit was brought seasonably to an issue by replication on the 29th of April, 1868. An allowance was made beyond alimony for the expense of testimony. Time was extended 'till November 25, 1868, for taking testimony, but it does not appear that complainant took any, and the case was never brought to a hearing. No application was ever made for further alimony.
In the absence of any express promise, the power of a wife separated from her husband without her fault rests on an implied authority to bind him for necessaries, when he has made no sufficient provision for her support. If he makes sufficient provision, or if he makes provision to an amount she assents to receive without coercion, he is not bound to make good her contracts for necessaries. This is not questioned. Hodgkinson v. Fletcher, 4 Campb., 70; Reeve v. Marquis of Conyngham, 2 Car. & K., 444; Holder v. Cope, 2 Car. & K., 437; Mizen v. Pick, 3 M. & W., 411; Emmett v. Norton, 8 C. & P., 506; Dixon v. Hurrell, 8 C. & P., 717; Turner v. Winter, 1 Selw. N. P. 295; Ozard v. Darnford, id.
The principal question presented here is how far the husband is liable when alimony is fixed by a competent court in a suit for divorce brought by the wife. No question can properly arise here upon a failure to pay what has been decreed, because there has been no substantial default, and no services rendered or contracted for by reason of the lack of means caused by default.
In Manby v. Scott, 1 Siderfin, 109 (reported in English in 2 Smith’s Leading Cases, 408), it was held that a wife separated from her husband by his fault was bound in all cases to apply for alimony to the proper court, and that her husband was not liable for necessa ríes. The more recent authorities recognizing the want of power in the spiritual courts to enforce their decrees by adequate process have qualified this doctrine by holding the husband exempt if he complies with the order of alimony, but liable for any necessaries which his non-compliance may have made it requisite to obtain on credit.
This question came up in Hunt v. DeBlaquiere, 5 Bing., 550, where a husband against whom alimony had been ordered, left the realm and had paid only about two years’ allowance in seven years and more. The necessaries furnished were less than the arrears, and he was held liable. The court criticise and distinguish Manby v. Scott, and refer to the insufficiency of any proceedings to enforce alimony under such circumstances, and draw the line clearly between the rules applicable to alimony paid and unpaid.
In Houliston v. Smyth, 3 Bing., 127, alimony had not been decreed until after the goods were furnished, and was therefore held-to be no defense. And in Keegan v. Smith, 5 B. & C., 375, the same defense was overruled, although the alimony had been made to date back, because when the credit was furnished, it had not been ordered, and a lawful credit could not be destroyed by matter ex post facto.
In Willson v. Smyth, 1 Barn. & Ad., 801, the question was plainly settled. There alimony had been decreed in the Consistory court, and the husband appealed -to the Arches court from the decree. The appeal superseded the decree, and no new alimony was ordered by the Court of Arches, but the husband kept on paying it, and it appeared the latter court would have ordered it without any new showing if it had been applied for. Under these circumstances the Lord Chief Justice held that the husband was discharged, and non-suited the plaintiff, and a rule to set it aside was refused by the court in bank.
The testimony of the claimant is quite positive that from the beginning of the services they have been con stant, and that from the very outset all of her time was devoted to her mother without any considerable addition of labor or responsibility. The showing made on obtaining alimony was to the effect that she was practically entirely helpless. There was no time during the pendency of the divorce suit when an application for a further allowance would not have been competent if any grounds existed for it. The account presented makes no claim for increase during that period, and the, alimony was obtained on claimant’s showing.
It would certainly be a strange practice- to allow a jury in á collateral proceeding to review the action of a court of chancery on a question of fact submitted to it for adjudication. It must be taken for granted that the alimony allowed was the proper amount to be allowed and that the circuit court would at any time have increased it if any reason existed for the increase. The long delay in failing to bring the suit to hearing indicates acquiescence in the condition of things already existing, and the authorities all agree that no creditor can be put in any better 'position to complain of the husband than the wife herself. It is only in her right that any suit at all can be upheld.
We think the court improperly left it to the jury to consider the sufficiency of the alimony.
The other points do not seem to be very important, as it is not probable the jury found any agreement. There is no evidence that so far as the record shows indicates it, and we must assume their finding was based on the insufficiency of the alimony.
We have made no reference to the very unsatisfactory shape of the record, inasmuch as no attempt was made seasonably to dismiss or to obtain a further return, and it must be assumed the parties were satisfied with it as made.
Judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Per Curiam.
The facts in this case are exactly the same as in Byrnes v. People, 37 Mich., 515, and therefore the same judgment of reversal must be entered and for discharge of prisoner. | [
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Marston, J.
The respondent was tried upon an information charging him with having committed larceny, and also for having received stolen goods, and convicted of the first offense charged. When arraigned and before pleading he moved to quash the information for the reason that the return and certificate of the examining magistrate did not determine that any offense named in the information was committed nor that the justice found probable cause for suspecting the respondent to be guilty thereof. This motion was denied, and the errors now assigned are the same as those stated in this motion and for denying the same. The complaint made before the examining magistrate and the warrant issued by him contained charges the same as set forth in the information. There was an examination and the magistrate certified that it appeared to him that the said offense so charged was committed and that there was probable cause to believe the respondent to have been guilty of the commission thereof.
This, we are of opinion, was sufficient and would authorize the prosecuting attorney to file an information ' charging the respondent with a larceny of the property,
Our statute permits and authorizes the adding a count, in an information for larceny, charging a receiving of the same property knowing it to have been stolen. This is not designed as a separate and distinct offense but to meet the evidence adduced on the 'trial and prevent a failure of justice in a case where it should be made to appear that the respondent, was not the principal actor in the felonious taking but in receiving the stolen property with a knowledge of the fact. I do not understand that an examination upon a complaint charging a receiving of stolen property is necessary before the prosecuting attorney can add such a count to an information charging larceny. If there has been an examination before a magistrate on a complaint and warrant charging a larceny of goods, and the accused is held for trial, the prosecuting officer may, in his information in such a case, add a count for receiving stolen goods.
• Upon an examination in a case like the present the facts are fully gone into and an information charging the offense as in this case does not put the accused upon trial for an offense other or different than the one enquired of by the examining magistrate. See Brownell v. People, 38 Mich., 732, decided at the present term.
The judgment will be affirmed.
The other Justices concurred. | [
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Marston, J.
This was an action of assumpsit brought against White and eight others as “co-partners doing business under the name and style of- the Michigan Iron Company.” The plaintiff declared upon the common counts, and in his bill of particulars set forth copies of certain promissory notes, purporting to have been given and signed by the Michigan Iron Co., by H. J. Colwell, Treasurer. The defendants pleaded the general issue, and” filed affidavits denying the existence of the partnership ■ and of the execution of the notes.
The plaintiff, to maintain the issrre on his part, claims to have introduced evidence on the trial tending to show that four of the defendants were members of the Michigan Iron Company, but it is not claimed or pretended that any evidence whatever was given tending to connect either of the other defendants with this company. This was fatal to the plaintiff’s right to recover, unless as claimed he was entitled to recover a judgment against one or more of the defendants under the provisions of section 5778 of the Compiled Laws.
An examination of this section in connection with those preceding it, shows that it has no application to a case like the present, but to eases where, the holder of a “bill of exchange or promissory note, instead of bringing separate suits against the drawers, makers, guarantors of the payment thereof, indorsers, and acceptor of such bill or note” includes all or any of the said parties in one action.
Viewing the case in its most favorable" aspects in behalf of the plaintiff, upon his own showing he was not entitled to recover, and it therefore becomes unnecessary to consider the other questions raised.
The judgment must be affirmed with costs.'
The other Justices concurred. | [
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] |
Campbell, C. J.
Chubb sued Graham upon a promissory note for $58.88, dated March 6, 1871, but payable with interest at ten per cent per annum from the previous 21st of September, 1866. Defendant pleaded the general issue with notice of set-off, and denied the execution of the note. The ground of denial appeared to have been that he claimed the clause extending the interest back to 1866 was not in the note when given. The items of set-off included a sum of $74.71, paid on the note in 1873, and various articles furnished in subsequent years. On the trial a sufficient amount of set-off was proved to give defendant a verdict for a small balance of $2.68.
He brings error and insists his recovery should have been larger and was prevented by erroneous rulings.
The plaintiff- below who was a witness on his own behalf, testified that the note was given at its date, and that the interest clause was expressly agreed upon. On cross examination, he swore the note was made out upon a balance of account which his books showed due from defendant to him on the 21st of September, 1866,. and that a written statement of the account was previous to or at the time of taking the note, furnished to Graham. He also swore that the agreement to pay interest was not made until the date of the note, and was then made because it was deemed just.-
Defendant thereupon offered to show that there had been an agreement whereby plaintiff was to furnish defendant a lot of castings for straw cutters, and defendant was to pay a part of the price in straw cutters, which he delivered, but for which he received no credit. That when the note was given defendant was ignorant of the state of the account, but has since found his book from which he is able to refresh his recollection and show they were not credited, and that there was no balance due when the note was given. This was ruled out.
It is to be observed that more than two.years after the date of the note, and nearly seven years after the period when the account was struck, defendant paid upon it a sum of very much more than the original principal, leaving but a small balance; and that in his particulars and notice no reference is made to any such off-set or agreement, nor was any attempt made to show that previous to the trial any objection had ever been' made to the accuracy of the account.
It is not claimed that there was not the full amount due when the note was given, aside from these counterclaims. The note was therefore founded on a full and valuable consideration, which, if defendant’s pretense was true, might have been subject to reduction by the counter-claims. Giving to the note no greater force than if it had been merely an account stated, this testimony, if put in and believed, would only have shown that the particular matter of straw cutters was not included in the settlement. It is very well determined that an account stated need not cover all dealings, or dealings ■ on both sides. 2 Greenl. Ev., § 128; 3 Phil. Ev. (Edwards’ ed.), 431; 2 Stark. Ev., 75.
Without, therefore, dwelling upon other questions, this counter-claim, not having been settled, should have been established in some other way; and not having been included in the bill of particulars, and being also barred by lapse of time, it was proper to reject it.
As the finding of the jury necessarily denied that the note had been altered, the charges refused relating to what might be proper if it had been changed, are not important.
We think the court properly decided there was no usury in the case. We have not-had our attention called to any legal rule which prohibits parties from allowing back interest upon debts at the same rates which would be lawful in the future.
The judgment must be affirmed with costs..
The other Justices concurred. | [
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] |
Campbell, C. J.
This is a proceeding to review the action of the township drain commissioner in laying-out a drain. Several questions are raised on the record, but an important jurisdictional difficulty renders the rest unimportant.
Instead of summoning a jury, the drain commissioner applied to the judge of probate for the appointment of three commissioners to serve in the place of jurors. This application was made ex parte, and the commissioners so appointed acted also ex parte in determining the necessity of the work and the damages to be allowed.
If jurors had been summoned, the law provides that the land owner refusing to release a right of way shall be at liberty to strike off names from the panel. And the statute plainly contemplates that the party may always be present, and look after his rights. It therefore involves the necessity of either proceeding without a break after the first notice to appear, or else of giving some adequate notice of all suspended or adjourned proceedings. See L. 1875 (No. 140), p. 166, et seq.
The provision concerning, commissioners is very brief. The drain commissioner is authorized to “apply to the probate court of his county for the appointment of three commissioners to act in place of said jury, who shall take the same oath and perform the same duties prescribed above for said jury.” § 5.
It is the action of these commissioners which finally disposes of the rights of the land owner. He is as much concerned in securing competent and impartial commissioners, as jurors, and unless he can be heard at the time of their appointment his rights may be seriously endangered. The law regards the drain commissioner as representing in some degree adverse interests. He acts as an adverse representative in striking off jurors, and possesses the very dangerous discretion of choosing to dispense with jurors altogether. A person acting in such a capacity cannot be allowed to proceed by his own suggestions before the probate court, without giving his adversary a chance to object to improper commissioners and suggest proper ones. There can be no presumption that the probate court will be able to secure entirely impartial commissioners, when no one is present to scrutinize them. The judge can have no means of searching out possible objections. It would be quite as proper to allow a jury to be summoned without any opportunity of objection, as to permit commissioners with the same functions to be thus selected. We must hold, as was held in Swan v. Williams, 2 Mich., 427, that although the statute should be silent on the subject of notice, its necessity is implied, where private property is invaded. Probably the reason why no express provision is made for notice of this application may be found in the fact that juries are the rule and commissioners the exception, and in case of juries, the proceedings are intended to be continuous and the original notice would secure to the party knowledge of all the subsequent proceedings. As already suggested, in case of adjournments or intervals, some method of information must be found, because the presence of the party opposing is assumed throughout. We have no doubt the statute designed the same fullness of notice in case of the choice of commissioners, not only of the time and place of their appointment, but also of the time and place of their meeting, so that all parties interested may be heard and may introduce their proofs if they choose to do so.
We think these proceedings are fatally defective in having been taken without any such notice. The stat ute makes the duties of jurors and commissioners identical in all respects, and certainly never could have been designed to destroy the means of securing either an impartial choice of persons, or impartial action of those chosen.
The proceedings must be quashed, but without costs.
The other Justices concurred. | [
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] |
Campbell, C. J.
Complainant, who is daughter-in-law of defendant John Sackner, seeks' to s’et aside a mortgage which he holds against her homestead of $1800 and interest from July 28, 1871. Her claim is in brief that it was obtained from her by the mortgagee to facilitate a settlement with one of her husband’s creditors, and given by her on the representation that her homestead right being but $1500, if she gave a mortgage of the amount in question, there would be nothing on which a creditor could levy. As a matter of fact the conveyance by her husband had been a voluntary one, although it is not clear that the creditor in question could have assailed it. She claims that the mortgagee agreed to release it when desired, and that after it was given, a further security was given to another mortgagee for a loan, which the lender was assured was a first mortgage, on the faith that the mortgage now in controversy was not in force. Upon an attempt to make a second loan some time thereafter, complainant discovered that although as she avers defendant had promised to discharge the mortgage, he had not, and broke off the negotiation. Defendant, when afterwards urged to discharge it, refused.
His defense is that he paid for the homestead himself when purchased in 1868, and had the deed made to his son Samuel, complainant’s husband, with an understanding that he should have a lien for the purchase money, and that it should be paid in five years. That the son conveyed to the wife without his knowledge, and on discovering this, and regarding it as a fraud, he insisted on having and obtained this mortgage for the value not covered by the statutory homestead right of $1500.
There is unfortunately a direct conflict of evidence on important points. The court below found for complainant. We cannot properly disturb this decree without being satisfied that it is erroneous.
Inasmuch as a mortgage cannot be maintained without an obligation capable of proof, and inasmuch as this mortgage can only be maintained on defendant’s theory, we are not compelled to consider the facts at length concerning some collateral inquiries.
It is not disputed that defendant did furnish most of the purchase money of the farm. There is some testimony bearing on an intention to hold Samuel Sackner as owing it to his father. But it is quite clear that no security was asked or taken; that no principal or interest was ever paid or demanded; that a homestead was created which would absorb about half of the purchase money, and that nothing was said about the matter until after the conveyance to Mrs. Sackner. This conveyance was, beyond any question, made to her when her husband was about going into a new business which involved some risks, and was honestly designed to save the family from loss. Defendant, when he discovered it, was undoubtedly offended. It is evident he had the not unnatural feeling that he would not have put the property at his own expense in his daughter-in-law’s hands and beyond control of his son, and that his original purpose had been disappointed. ■ But while he claims that he obtained this mortgage to secure him for the advances which he had made, we are quite clear that if the property had- been left in the son’s name no claim of the sort would have been heard of. That defendant had a purpose when he took it, of doing so to obtain a species of control over the property, is plain enough. But we think the story of complainant that it was obtained with the ostensible design of inducing a creditor to made better terms, without any design of holding it as a valid security, is most in harmony with the circumstances. The papers were not given up to the mortgagee,. but were retained by the mortgagor at the time and for some time thereafter, and it is perfectly evident that both complainant and her husband supposed the property unincumbered and so dealt with it. It is just as plain that defendant never set up any rights under it and made no demands under it, until complainant made an urgent request for its discharge of record, when his refusal was put rather on the ground that he had the advantage, than that he had any rightful claim, and was maintained on account of family difficulties. It is impossible to account for complainant’s demand of release except upon the supposition at least of a right to it. The testimony concerning the terms and circumstances of that demand is in our view in accordance with her theory and not as defendant sets ■it up.
While we can readily see how defendant may have persuaded himself that he ought to have some control over his bounty to his son, we have become satisfied that he never retained any beyond the natural influence which he evidently possessed and exercised. But we think, with the court below, that this mortgage was not intended as a genuine security for an actual or supposed ■ debt.
The decree must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
April 27, 1876, Fuller conveyed his farm of eighty acres to Lenox for the consideration of $2600. The conveyance was made subject to a mortgage given to one Castor and on which there remained three hundred dollars and some interest. For a thousand dollars of the purchase price Lenox gave his note to Fuller-payable in sixty days. The remaining thirteen hundred dollars was secured by mortgage on the place.. Lenox caused his deed to be put on record within, a day or two, but Fuller neglected to have his mortgage recorded until the middle of June. In May Lenox mortgaged the place to Mrs. Connor for thirteen hundred dollars. Fuller did not move from Jhe place, but Lenox controlled the use of it.
He built a barn and performed, some work on the place, and as it seems, paid the Castor mortgage and some part of the note for a thousand dollars. There were some other dealings between the parties which are not clearly explained. Finding himself unable to pay the rest of the purchase money, Lenox made over tures to Fuller in the course of the fall to trade back on some terms. Fuller was at first averse to doing so, but at length consented.
Some matters bétween them which are not very distinctly described were to be canceled. What remained of the amount originally covered by the note for a thousand dollars was to be surrendered. The mortgage to Fuller for thirteen hundred dollars was also to be discharged, and besides Fuller was to deliver a colt and pig, and Lenox was to reconvey.
November 1st, 1876, the parties proceeded to carry out the arrangement. And so far as the record shows they did carry it out without leaving any ground of contention except in regard to a single matter and which is the cause of the present litigation.
Fuller charges that he had no knowledge of the mortgage to Mrs. Connor and that Lenox repeatedly told him expressly that he had not encumbered the place. This suit was brought to recover damages for this alleged deceit, and Fuller obtained a verdict for $800. Lenox insists that it was part of the understanding for the reconveyance that it should be subject to his mortgage to Mrs. Connor and that Fuller was fully informed of the existence of that mortgage. The deed contained the usual covenants and that against incumbrances contained an express exception of the mortgage to Mrs. Connor, and Lenox testified that the deed including the exception was slowly and distinctly read' to Fuller. The latter swore that only a part of the deed was read to him and that the part referring to this mortgage was not. Each adduced further evidence to support his own version.
There is no force in the objection made against the admission of the record of the mortgage given by Lenox to Fuller. • It was one of the surrounding and explanatory facts which the jury- were entitled to have before them. The mortgage was one of the papers to be can-celled on the reconveyance and was an ' incident connected with the commission of the wrong complained of. Moreover the record was evidence that the mortgage was not recorded until after Mrs. Connor’s.
A witness, who was a carpenter, was asked what the barn was worth, and this was objected to as irrelevant. This inquiry bore upon the value of improvements made by Lenox and upon the credit due to Fuller’s claim that he did not accept the place subject to Mrs. Connor’s mortgage. The greater the value of the improvements added by Lenox the more room for question whether Fuller did not take the place back burdened by the Connor mortgage. The changes made by Lenox and the true state of the premises when they were reconveyed were proper matters for the jury.
Evidence was given to show that Fuller’s reputation for truth and veracity was bad and Mr. Stone was called to sustain him. Having stated that he knew him, but was not acquainted with his reputation for truth and veracity in the neighborhood where he lived, — that he was acquainted with his neighbors and had considerable to do with them, he was then further asked whether he had ever heard of his truth and veracity being questioned. This was objected to as incompetent, but the court allowed the question and the witness replied that' he could not say he ever had. The point is supposed to have been ruled expressly the other way by our predeessors, and Webber v. Hanke, 4 Mich., 198, is cited. The question passed upon there was-different.
Error was brought to reverse the judgment of a justice of the peace, together with the judgment in affirmance of it in the circuit court. On the trial before the justice the plaintiff in error called one Schimmel to impeach Strasburg, a witness for the opposing party. He was not called to sustain a witness against whom impeaching evidence had been given, but to impeach. The purpose was not to show that the standing of the other witness was such as to help create a good opinion of his veracity, and induce an inference in favor of his credit, but it was to make out in the mode sanctioned by the rules of evidence that his standing was so bad as to warrant an inference unfavorable to his credit. The difference between these objects is material. On being sworn, Schimmell testified that he did not’ know the general reputation of Strasburg for truth and veracity in the neighborhood where he lived. And although this answer showed that he was not qualified to depose agreeably to the rules of evidence against Strasburg’s credit, and for which alone he was under examination, the examining counsel persisted and put this further question: “ Have you heard people acquainted with him speak of such character?” The question was objected to and the justice excluded it.
The court affirmed the ruling. The witness appeared to be incompetent to state what was needful to impeach, and the answer which the question regularly called for could not be otherwise than immaterial. He had disproved his ability to give legitimate evidence against Strasburg’s credit and the party was not entitled to insist upon giving any other.
Where, however, the witness is not called to impair but to support credit, the ground is different. Not to have been talked about at all in regard to integrity is not to have been talked against, and it is not objectionable to show that the veracity of the witness has not been questioned.
The fact that a person’s truthfulness has never been the subject of controversy is according to general observation and experience, very' cogent evidence to prove him worthy of credit, and where those who would be likely to know if it had been the subject .of criticism testify they have no knowledge that it has been, the evidence is proper as conducive to the effect that such person could not have borne the bad reputation imputed. People v. Davis, 21 Wend., 309; Gandolfo v. The State, 11 Ohio St., 114; State v. Lee, 22 Minn., 407. The exception is not sustained.
Soon after the reconveyance and prior to this suit, Fuller brought replevin against Lenox before a justice for the horse given in the trade back, and the action was still pending in the circuit court on appeal when the present cause was tried. The replevin suit was instituted on the theory that Fuller was defrauded of the horse by the imposition alleged in this case, and was hence entitled to repudiate the transfer. It was insisted in the court below on the part of Lenox, and is urged here that Fuller having taken the step in replevin in repudiation of the transaction upon the ground of the alleged deceit, thereby debarred himself from bringing this suit to recover distinct positive damage, caused to him by the very same act of fraud. The court think this objection answered by Warren v. Cole, 15 Mich., 265. Both cases brought on account of this transaction are supposed to be in principle quite consistent with repudiation for fraud on the part of ' Fuller. Bepossession of property which has been taken by fraud does not necessarily imply full legal satisfaction or exhaustion of remedy, and it is not entirely unworthy of notice that whether the replevin was well based, or what may be its fate, still remains to be settled. The first request for instructions by plaintiff in error was misleading. The charge given on the subject was correct.
The instruction given concerning Fuller’s knowledge of the Connor mortgage before completing the trade, appears to the court fair, and more distinctly applicable to the circumstances than the form of the request on the same subject.
The exception that the charge should have instructed the jury that the amount of the mortgage was the proper measure of damages is of course not-a tenable one for plaintiff in error, since the recovery against him is only four-sevenths of that amount. If error was committed it was not to his prejudice. The exception to a remark by the judge in reference to the fact that the mortgage from Lenox to Fuller was not accompanied by a note, has no force. Whatever its influence, if any, it was not adverse.
No error being shown of which Lenox may complain, the judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
Goan brought replevin for several animals, various farm products and other chattels, and under the judge’s rulings the jury found for defendant.
.It appears that Mole for a long series of years prior to the fall of 1874 had occupied Goan’s farm, and part of the time under arrangements for carrying it on upon shares; that whilst he was still occupying, and in that fall, it was verbally agreed between the parties that Mole should have the place three years more on shares. Coan furnished certain stock, and whatever stock was provided was to be fed on the common produce. The parties were to share equally in the products and in the increase of the stock, and whatever was to be turned off was to be divided in the cash returns. Of the property taken on the writ, part was admitted to be subject to this arrangement. The rest was claimed by Coan, but Mole disputed his right to it. He claimed that part of this portion belonged to him individually, and that his wife owned the residue of it.
Coan testified that this agreement for carrying on the .place upon shares was made October 31st, 1874, and terminated October 31st, 1877.
Mole swore the agreement- was entered into November 28th, 1874, and was to run for three years and until November 28th, 1877. There was no other testimony about it. The disputed time was four weeks, and in this interval the suit was commenced. Mole remained in possession until after the 28th of November.
Assuming that the agreement for want of writing was not good for a three years’ holding under the Statute of Frauds, still it was sufficient to uphold one from year to year until terminated by notice (Morrill v. Mackman, 24 Mich., 279) and there is no pretense that Mole was asked to surrender by the time he specified for the year to end, namely, November 28.
Coan testified that he demanded the property seized on the first day of November and also some ten days or two weeks before, and he made proof by another witness of the demand on the first of November. But the record is silent as to any notice to terminate the holding of the premises, and there is no intimation that any request for their surrender was made on either of these occasions or at any time.
That portion of the property in controversy which Mole held under the arrangement for working the place he had a right to hold while the arrangement continued, and whatever common or concurrent right Coan may have had, he was not entitled to dispossess Mole through the action of replevin. Hence if Mole was correct in the statement that the holding was to terminate on the 28th of November, the seizure of this property in replevin was premature. On turning to the charge it appears that the judge submitted the specific point to the jury, and it is evident they must have found that Mole's version' was correct, and that the term continued until November 28th.
The ownership of the remaining property was disputed. The question was not one of mere possession or right of possession. It was one of title simply, and this was submitted and the finding was adverse.
In view of the nature of these questions, and the mode in which they were dealt with and the final result, it would seem that Coan had no right to demand any recovery, and that the other points agitated in the briefs of counsel, however interesting in themselves, are quite immaterial here.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
This bill was filed June 9,1870, by Charles Pratt against George Lewis, Jacob Sebeck, and James J. McCormick, in the circuit court for the county of Bay in chancery, and the case was subsequently transferred by stipulation to the circuit court in chancery for Genesee county. The acts and proceedings which induced the suit belong to a controversy concerning the required locality upon the ground of the' east and west street or way, once called Cass street, but recently Twenty-second street, in that part of Bay City formerly called Portsmouth.
The way or easement was in actual use, and of course had as matter of fact, a present visibly defined location; and the defendants, Lewis and James J. McCormick, were lot owners on the north and the complainant, Charles Pratt, together with Charles S. Pratt, were lot owners opposite on the south, and the defendants claiming that the way or easement as thus practically located on the ground, was in truth its full width or thereabout, too far north, and that it consequently burdened without right, their lands, and abridged their lots, proceeded to fence up, encumber, and permanently appropriate that portion of the space so occupied as a street, extending the width of the lots.
Upon the other side it was claimed that the way or easement belonged rightly in the space which it occupied, and that the attempt to close it up or shift it was wrongful and specially injurious to complainants, and the bill was filed to abate the obstructions and restrain future acts -of nuisance.
July, 1870, the defendants Lewis and J ames J. McCormick, filed their joint answer upon oath.
January, 1872, Charles Pratt applied to have Charles S. Pratt, with his assent, made co-complainant, and the latter assented.
November, 1872, the defendant James J. McCormick died, and May 3d, 1873, his death was suggested, and the court made an order to revive, and to bring in his heirs and legal representatives.
October 10, 1873, Charles S. Pratt was made co-complainant, and November 2d, 1875, he died and his death was suggested.
July 8, 1876, an order was passed reviving the suit and introducing as parties complainant in the place of Charles S. Pratt, his widow, his heir-at-law, and the administrator of his estate.
The pleadings were allowed to be amended as far as necessary after these changes.
As to Sebeck, the will was taken as confessed.
Proofs having been taken, the case was heard upon the merits, and the court decreed in favor of complainants. All the defendants acquiesced except the defendant Lewis, who alone appealed.
First. The objection that the bill does not charge, or the proofs show, any injury or inconvenience to complainants beyond what the public suffers, cannot be allowed. The bill averred special injury but omitted to explain in what it consisted.
The answer expressly traversed this averment, and under the issue thereby made the parties went fully into proof, and it is plain that the want of certainty in the bill has caused no prejudice.
Greater certainty might have been insisted on but was not. Carew v. Johnston, 2 Scho. & Lef., 280.
The common formulary inserted in the answer to question the bill for want of equity, was not sufficient to raise the point as to the want of particularity sug? gested, and the objection was not open at tbe hearing. 1 Daniel Ch. Pr., 366 to 372 and 685 to 591; Devonsher v. Newenham, 2 Scho. & Lef., 199.
Tbe case established J)y tbe evidence under this issue was ample.
Tbe transaction is not one where nothing is involved beyond a mere impediment or obstacle to tbe legitimate enjoyment of a public road, and where no one suffers a greater direct inconvenience than another. Far from it. What is attempted is tbe complete appropriation of tbe site of tbe way by defendants to their own private use in perpetuity, and tbe entire exclusion of complainants from all enjoyment, and from all chance of egress and ingress on that side, except upon tbe condition of transferring tbe burden of tbe easement to their own premises. And this is not all; other kinds of detriment are involved. Tbe change of situation of complainant’s improvements and sites for improvements relatively to street accommodations and surrounding conditions, must cause special disturbance of complainant’s rights. Distance,‘room, aspect and eligibility are matters of much consideration in connection with actual neighboring environments. This feature of tbe case is plain. Conrad v. Smith, 32 Mich., 429; Benjamin v. Storr, L. R., 9 Com. P., 400: 10 Eng., 231; Spencer v. The London & Birmingham R. W. Co., 8 Sim., 193; Corning v. Lowerre, 6 Johns. Ch., 439; Frink v. Lawrence, 20 Conn., 117; Wilkes v. Hungerford Market Co., 2 Bing. N. C., 281; Soltau v. De Held, 9 E. L. & E., 104: 2 Sim., (N. S.,) 133.
Second. Tbe position that tbe city removed tbe easement from tbe actually'worked and traveled site some fifty feet south, cannot be maintained.
It appears by a great weight of evidence that tbe old location being that supported by complainants, agrees substantially with tbe site required by tbe scheme of Farmer’s map; that it was actually occupied very early as tbe true place, and for a short distance was in part fenced; that it was fully identified by several successive surveyors and staked out; that public money and highway labor were expended on it; that the authorities and •citizens recognized it and used it as the street in question, and that the location continued to have general ■acquiescence for more than ten years and down to about 1864, when one Huggins made a partial re-survey of a part of the old Portsmouth plat, and called in question the accuracy of the location of this and one or more •other streets.
Now it is plain that this easement or right of way called Cass street, had become established on the strip •of land; — in fact occupied and existed there in the sight of the public. It was proof for itself. It could not be dealt with as a float. It had become attached to the ground it covered. The circumstance of its being where it was demonstrated its right to be there. It could be ■surveyed in the place which had become appropriated by it and be described accordingly if thought necessary. But it was not capable of being shifted about by surveyors. The evidence is rather vague as to the real sense •of the proceedings by the city, and there are indications that the members of the common council were never very clear as to what was proper. It is entirely certain, however, that their acts were not based on the charter power to vacate, alter, and lay out streets, and were without force to effect any change of that kind. There seems to' have been no attempt to comply with that "branch of the charter (2 Sess. L. 1867, p. 377), and if the measures taken, such as they were, can be referred to the charter at all or to any other law, they must be referred to the provisions granting power to find and mark street boundaries, 2 Sess. L. 1867, p. 357, § 11; 2 Sess. L. 1869, p. 572, § 9, subdivision 29.
No other regulations having any possible application are discovered, and these certainly could afford no warrant for assuming to transfer the way to another place. Every survey and description made according to the true state of things, and the statute authorizes no other, would necessarily identify the easement where it had become fixed and in fact appeared; and the proceedings-, of the city cannot be construed as having the effect to remove it to new ground. The site remained unchanged.
Third. It does not appear to the court that it is open to defendant Lewis, who alone appeals, to question the validity of the order of revivor made after the death of defendant McCormick. He insists that the cause of action as against that party expired, and that the order to revive against McCormick’s heirs and legal representatives was consequently void.
They have not appealed against the decree. They do. not complain, but acquiesce, and no body else is entitled to object that they are charged with a defunct liability.
If the liability McCormick was under terminated at his death the suit was no longer affected by it, and there was nothing to hinder the prosecution of the case to. final decree against the appellant. Comp. L., § 5101.
The claim that William E. McCormick as administrator of Charles S. Pratt deceased, one of complainants,, had no interest and ought not to have been made a party on the death of Mr. Pratt, is not much pressed.. It possesses no importance. His presence in the record,, whether necessary or not, caused no prejudice to appellant, and does not appear to have been objected to. At-all events there is nothing in the fact of his being brought in and retained to require' any change in the decree, much less a reversal of it.
Fourth. My brethren think that the equity of complainants against the closing up or blocking the street where it now runs, is fully made out without regard to-block 231, and that the failure to prove ownership or possession of that block is quite unimportant.
What has been said disposes of all the points urged by appellant’s counsel, and the decree must be affirmed with costs.
Campbell, C. J. and Cooley, J. concurred. Marston,, J. did not sit in this case. | [
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] |
Campbell, C. J.
Blackman and Eddy recovered judgment against John C. and Henry A. Cameron, as partners, upon an account of several items, the only ones appearing, as this record is made up, to be open to dispute being clothing and other articles furnished to Ered Cameron, a young man who was a relative of the partners, and who was once in their employ.
In proving the account, Blackman, who was a witness, was allowed to refresh his memory by referring to a memorandum, which, although taken from his books, was not copied from his own entries. He swore, however, that he had a complete recollection of the facts, and it is not, therefore, of any consequence whether this was or was not, a memorandum which could have been evidence in itself. He evidently used it for convenience merely.
The main defense rests on the claim that the sales of goods, which were charged to the firm, but furnished to Fred. Cameron, were beyond the. scope of partnership dealings, and not authorized by John C. Cameron. He resided in another State, and is not affirmatively shown to have sanctioned or known of these dealings.
The testimony showed that for successive years items of clothing and the like were furnished to Fred. Cameron, charged to the firm, and allowed in the semi-annual settlements without objection. Henry A. Cameron, the local partner and general manager, settled these accounts. Sometime after Fred. Cameron had left the establishment, and set up for himself, defendants in error, on asking whether he should have further articles furnished, were forbidden to allow it on the firm credit.
There is no serious question made against the sufficiency of the dealings to have made Henry A. Cameron responsible if he had been a sole trader. The only question is whether he could bind the firm for such purposes.
While this is presented under various forms, there is really but one point involved, and that is whether such a transaction is so foreign to the purposes, of a commercial partnership that Blackman and Eddy had no right to act on the authority of the managing partner.
It seems to us the case is not open to much argument. If we can conceive it possible that such a mode of doing business may be desirable and usual for any reasonable purposes of the firm, there can be nothing to prevent it. It is certainly usual and proper for merchants in different lines of business to deal with each other on just such mutual credits, and to furnish each other’s customers articles which are charged to the merchant and not to the buyer, and to settle their balances accordingly. No one ever thinks of asking his neighbor why such credits are sought, or whether his partnership articles contemplate it. It is every day custom and a very reasonable one, from which all parties reap profit. Whether such goods are desired for- clerks or customers or strangers cannot concern the seller. He has no occasion to pry into his neighbor’s business or ask his reasons. He has a right to presume, until warned to the contrary, that all such dealings are admissible, and within the power of all business houses. . We must take judicial notice of a custom which is familiar everywhere, and we cannot hold it presumably wrong to follow it.
The rulings below were correct, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
This case came up in the circuit court upon an appeal from the allowance of the claim by the commissioners appointed to adjust claims against the estate of Thomas Gr. Duncan, deceased. A judgment was recovered in the circuit court and- the case comes here upon writ of error.
The principal facts out of which this claim grew are, in brief, that Duncan was the owner of a tract of land in the city of Battle Creek which he desired to improve; that in April, 1870, he appeared before the common council of said city, and made a verbal proposition in reference to the building of a bridge across the Kalamazoo river, at the foot of Kendall street, and the extension of Kendall street across his land; that action was thereafter taken by the common council in reference thereto, his proposition was accepted and the bridge constructed, and it was claimed on the part of the city that it was entitled to recover out of his estate, in accordance with the proposition made by him and accepted by the city, one half the contract price of' building the bridge, less the amount paid on Mr. Duncan’s behalf during his lifetime.
It will not be necessary to discuss the several errors assigned separately and each at length; they raise certain legal propositions which we will proceed to consider.
First. That there was only one way by which the common council could act in the premises, viz.: by resolution, and that whatever action they did take is conclusively presumed to be evidenced by their record, and that parol evidence is inadmissible to alter, add to, or supplement such record; that the court erred therefore in permitting oral testimony to be given of the proposition made by Mr. Duncan to the council, and in permitting Joseph G-. Hoyt to give evidence of certain conversations which he afterwards had with Mr. Duncan in reference to the building of this bridge, and which, it is claimed, varied or changed the original proposition and contract, if any such contract were ever made.
The legal proposition asserted by counsel is correct as a general one; the difficulty arises in its application to the facts in this case.
The proposition submitted by Mr. Duncan to the common council was not in writing. It is true that the records of the council contain what purports to be the substance of that proposition. This was necessary in order to point to or make clear the subject matter in case the council should take any action in reference thereto. The proposition as made might be spread upon the record by the clerk, or it might be incorporated in a preamble or resolution adopted by the council, and thus become a part of their record. In either event it could not be conclusively presumed to contain the proposition made in all its details, and would not preclude Mr. Duncan or his representatives from showing what the proposition as actually made, contained, even although by so doing the record might be contradicted, added to, or varied. While the city would be concluded by the record evidence of the action taken by the common council, neither the city nor third parties could be by the recitals in the record of oral propositions made by third persons. Either party would be at liberty to prove by oral testimony the proposition actually submitted and acted upon. Of course the result of such a showing in some cases might establish the fact that nothing had in truth been agreed upon; that the proposition as submitted and the one acted upon and accepted were so dissimilar that the minds of the parties could not be said to have met upon anything. Of course an oral proposition might be submitted, and as it appeared upon the record be changed or varied, and accepted or acted upon in its changed condition and yet bind the parties by ratification by the acts and declaration of.the person making the proposition, after having been in any way made aware of the changes.
It was competent therefore to show, independently of the' records of the council, the proposition made by Mr. Duncan in reference to the building of this bridge, and also the conversation which members of the council afterwards had with him in reference thereto, whether instructed to confer with him upon the subject or otherwise. Detroit, Lansing & Lake Michigan R. R. Co. v. Starnes, 38 Mich., 698; Taymouth v. Koehler, 35 Mich., 22.
Second. It is claimed that no contract whatever was shown t® have been made; that the proposition made by Duncan was so indefinite and uncertain that it could not have or be given the force of a contract; ' that the proposition made was for a “good bridge,” but did not state its size or class, whether foot, toll or suspension; whether it should be built of iron, wood or stone, nor the particular place where, or when it should be built or the expense or cost thereof, and that the report of the committee, and the action of the council thereon must necessarily be equally indefinite and uncertain, as the council could only accept or reject the proposition as made.
This last statement, as we have already said, is not strictly correct. The council could accept the proposition with such changes and modifications as was deemed best, and should the party afterwards be informed of the changes or conditions, and assent thereto, he would be bound thereby the same as though such changes or conditions had been contained in his original proposition. If an offer or proposition is made by a person to a corporation in relation to a matter within the scope of its authority, and is accepted in a modified form, we know of no legal principle which would prevent both parties from carrying out the agreement in its new or accepted form, if they thought proper so to do.
In regard to the indefinite and uncertain nature of the proposition and acceptance, were this an action brought to enforce specific performance of the agreement or to recover damages from non-performance of the contract in not building the same, the objections urged would have some force. Such is not this case. Here the bridge has been built, no question is made as to the time, place or manner of its construction, or that it in any respect falls short of the kind of bridge contemplated by the parties. If Mr. Duncan simply stipulated for a “good bridge,” leaving the kind of bridge and all the details to the council, and found no fault with the action taken by the council so far as known to him, it is now too late for his representatives to come' in after they have obtained all he stipulated for, and because of the indefinite nature of his proposition decline to pay the stipulated price.
It was, however, urged that Mr. Duncan’s proposition was, that “if the city would build one half of a good bridge across the Kalamazoo river, he would build the other half;” that the only evidence tending to change this proposition was that of Hoyt, who testified that as one of a committee appointed by ttíe council “to confer with Mr. Duncan in reference to procuring timber for the bridge”’ he had a conversation with him relative thereto; that Duncan said to him that he, Duncan, wanted nothing to do with building the bridge himself, — he would rather the city would go on and build it and he would pay- one half of it. After this the council authorized one of its committees to advertise for bids for building the bridge, and let the contract under which it was constructed.
We think that this evidence in no way tended to change or modify the original agreement. The oral evi dence as to the proposition submitted by Mr. Duncan was that if the city would go on and build a bridge across the river, that he (Duncan) “would be to the expense „ of half the bridge, — building half the bridge.” If this 'was the proposition made, then there, was no change made, but we are of opinion that even if the language used by Mr. Duncan was that “if the city would build one-half of a good bridge across the Kalamazoo river, he would build the other half,” the legal effect and construction thereof would be the same. It could not have been the intention that each should literally build one-half, any more than that if the members of the common council should themselves personally do the manual labor upon óne-half the bridge, he (Duncan) would with his own hands construct the other half. Bridges are not usually constructed by piece-meal in that way. In the construction of bridges across rivers between different corporations on the lines of public highways, each builds one-half the bridge by paying one-half the expense thereof, but the bridge is constructed as a whole. So in this case the proposition to build one-half was but another way of saying that he would pay one-half the expense of its construction. This follows from the nature of the subject matter about which the parties were negotiating.
Third. It is also insisted that the council could not extend Kendall street without first declaring it to be a necessary public improvement; that until they had extended it across the river they could not contract to build a bridge there, as they only possessed power to build bridges upon public streets; -that the declaration does not allege nor the proofs show that public necessity or even convenience' required the building of this bridge, while it does appear that the object was to improve and render more valuable the lands of Duncan and increase their value.
There is no force in these objections. If the council had been seeking, under the power of eminent domain, to open and extend this street there might be force in the objection. Where, however, a person, as in this case, offers upon certain conditions to throw open a street across his land for the use of the public, an acceptance of such proposition by the proper authorities is a sufficient declaration of its necessity as a public improvement, even if any such were needed; and the fact that the improvement would benefit the lands of private individuals could be no objection. It is frequently the case in all cities that parties owning lands which would be rendered more valuable by having a street opened and graded through the same, offer to open or permit to be opened a street on condition that the city will open and grade the street and build the necessary fences, and the power of the common council to accept such a proposition and proceed with the work we have never heard questioned. There can be no doubt of the power to accept upon such or similar terms, unless prohibited by some provision in the charter, which is not claimed in this case.
JBut it is said that such a proposition as the one made by Duncan, even if accepted by the city, would be void as being against public policy; that this council was the municipal legislature of the city, and the proposition appears upon its face -to have been made in reference to legislative action; that if it was not the duty of the city to build the bridge they had no warrant for doing it. If it was their duty to build, Duncan’s promise to pay a part of.the expense was a promise to pay them a premium for doing their duty and therefore void; and that the corporation had no right to expend money unless the public exigency required it, and not for private advantage. Such in brief was the argument advanced.
We see nothing in the proposition as made, or accepted by the common council, which could be considered as contrary to public policy, or that the prop osition was made for the purpose of influencing the legislative action of the council in such a manner as to render the agreement void.
' This offer had no reference to a purely private matter. It had reference to the extension of one of the public streets of the city, and the erection of a public bridge on the line thereof free to and for the benefit of all the inhabitants of the city. The entire expense of the improvement contemplated may have been so great that the council may well have hesitated at that time to assume the entire burthen. The fact that private individuals would be benefited by the improvement, and that they therefore should offer to bear a portion of the expense, would make the improvement none the less a public one, or one that the common council should not then make, because of the offer.
Had the council proposed to build an inferior or temporary bridge, or one not considered fully adequate to meet the wants of the public, might not a portion of the citizens offer to contribute a portion of the expense of building a better and more ornamental one? Or might not the citizens on the line of a contemplated street offer to pave it if the council would open and grade it? Clearly we think this might be done, and that an offer so made, if accepted and acted upon by the council within a reasonable time, would be binding and obligatory upon the parties. The mere fact that it might be the duty of the city unaided to make the desired improvement would not render an agreement to aid void. Stevens v. Corbitt, 33 Mich., 461.
But it is said such a proposition influences legislative action and is therefore void. There are many ways in which a legislative body may be fairly and legitimately influenced. It is not the fact merely of influencing a legislative body, but the manner or method resorted to that is condemned. The reason why agreements to aid and influence legislation are usually held void as being contrary to public policy is that they tend to subject the members to secret, improper and corrupting influences. No such reasons, however, exist in this case. Here the proposition was openly and fairly made in an honorable manner to the body itself; no promise, reward or private benefit was secretly or otherwise offered or presented to any of the individual members of that body. The only interest or inducement held out to them was a public one. In all this we can discover nothing secret, —nothing improper nor corrupting in its tendency.
It is unnecessary to examine the several cases cited by counsel for plaintiff in error. We should have no hesitation in following them in a ease where we considered them applicable. The authorities cited by counsel for defendant, are more directly in point and sustain the agreement in this case.
The- judgment must be affirmed with costs.
The other Justices concurred. | [
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Carr, J.
The question at issue in this case concerns the validity of a sale of real property under mortgage foreclosure proceedings. In December, 1952, Kristen K. Tranberg and wife were the owners of lofts 131 and 132 of German’s Montrose Park subdivision located on West Eight Mile road in Wayne county. The record before us indicates that the property had been used for residential purposes and for carrying on a landscaping business. Said business and the lots were sold to defendants Bisson, the grantors taking back a purchase-money mortgage as security for the unpaid portion of the consideration. For a period of approximately 18 months the purchasers continued the business. At that1 time there was a house on lot 131 but lot 132 was vacant and was used for the storage of equipment in connection with the operations mentioned.
Under date of February 18, 1954, defendants Bis-son entered into a land contract with plaintiff Masella and Richard Salvaggio for the sale and purchase of lot 132 together with the landscaping business and the equipment used in connection therewith. The total consideration for the transaction was $8,000, of which sum $1,000 was paid down, the balance being payable at the rate of $250 or more per month. Thereafter Salvaggio transferred his interest under the contract to plaintiff Masella who continued to make payments until the balance remaining on the contract was approximately $1,300.
For a short time plaintiff Masella continued the operation of the business that he had acquired and then sold it, the purchaser apparently removing it from its then location. Plaintiff at some time built a garage on lot 132 but for what purpose the record does not show. It is undisputed, however, that he continued the payments to defendants Bisson in accordance with the terms of the land contract.
Defendants Bisson failed to make payments in accordance with the terms of the purchase-money mortgage given by them to Mr. and Mrs. Tranberg on the lots in question. Kristen Tranberg died shortly after the decease of his wife, and an administrator, who is the attorney for the estate in this suit, was duly appointed. Foreclosure proceedings were instituted in accordance with the statute authorizing the foreclosure of a mortgage, containing a power of sale, by advertisement. No question is raised in the case as to the validity of the proceedings prior to the sale which was conducted by a deputy sheriff of the county. The administrator of the Tranberg estate was present and made inquiry from others in proximity to ascertain if anyone desired to submit a bid on either of the lots. Receiving nó affirmative response he then indicated to the officer that the estate would not tender a bid oh the lots separately but would submit a bid covering both iii the sum of $5,600.
It appears from the opinion of the trial judge in the case that the amount of the unpaid portion of the indebtedness secured by the mortgage was, including interest, $6,080.79 as of the date of the sale. The bid tendered was accepted. Such sale was conducted on August 24, 1957. The present suit was instituted by plaintiff on August 1, 1958, asking that the sale be set aside because' of the failure to sell the lots separately. In his bill of complaint plain tiff alleged that if the sale were permitted to stand he would suffer injury in being deprived of the right to redeem from the sale of lot 132 alone. He further asserted that redeeming both lots from the sale as made would necessitate a payment of an additional $4,700 over and above the balance owing by him on the lot that he was purchasing from defendants Bisson. His claim that the sale was void was based on CL 1948, § 692.7 (Stat Ann § 27.1227), which reads as follows:
“If the mortgaged premises consist of distinct farms, tracts, or lots not occupied as 1 parcel, they shall be sold separately, and no more farms, tracts, or lots shall be sold than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest and the cost and expenses allowed by law but if distinct lots be occupied as 1 parcel, they may in such case be sold together.”
Defendants by their respective answers denied the right of plaintiff to question the validity of the sale. On behalf of the Tranberg estate it was insisted in the circuit court, and likewise on this appeal, that the sale was not in violation of the statute, such argument being predicated on the claim that the 2 lots were in fact but a single parcel and that they had been used together in carrying on the landscaping business as conducted by defendants Bisson, and subsequently by plaintiff prior to the sale by him of the business. Such claim presents the controlling question in the case. Was the sale in violation of the statute because of the failure to sell the lots separately? The trial judge filed an opinion in which he discussed the factual situation at some length, calling attention to matters on which the parties to the case agreed, and apparently concluding that because of the manner in which the landscaping business had been conducted by the parties that the sale of the 2 lots as one parcel was permissible.
The opinion of the trial court also called attention to the fact that following the sale and the acceptance of its bid the Tranberg estate through its administrator had procured a settlement of a tax lien imposed on both lots by the government of the United States, the exact basis of such lien not being-shown by the record here, and had also satisfied a prior mortgage held by a third party. It appears from the opinion of the trial judge that the amount of such lien was in excess of $11,000, that it was settled by the estate for $1,267.72 in connection with which an attorney fee in the sum of $1,000 was claimed, and that the prior mortgage referred to necessitated the payment of an additional $376.04. In the instant case, however, we are concerned with the foreclosure of the mortgage, and specifically with the conduct of the sale of the mortgaged property in satisfaction of the indebtedness secured thereby, the question at issue being as above stated. Prom a decree entered by the trial court dismissing the bill of complaint plaintiff has appealed, asking reversal on the ground that under the facts involved the statute required the sale of the 2 lots separately.
The purpose of the statutory provision on which plaintiff relies is obvious. It was enacted by the legislature to protect parties having interests in the mortgaged premises by insuring a right of redemption where the occupancy and ownership are other than as one parcel. It was also designed to obviate the sale of more of such interests than required to satisfy the mortgage and the incidental costs and expenses. It is equally obvious that the requirement with reference to separate sales of parcels covered by the mortgage lien had reference to the time of conducting the sale rather than to prior use or occupancy. One who seeks to foreclose a mortgage containing a power of sale, in accordance with the statute pertaining thereto, is hound to proceed in accordance with the requirements that the legislature has imposed with reference to the proceeding. In other words the requirement as to separate sales of different parcels, not occupied as one, is mandatory and one whose rights have been jeopardized by failure to comply with such requirement is entitled to ask in a proper proceeding that the sale be set aside.
The section of the statute in question here has been before this Court in numerous cases. A decision to which reference is frequently made was rendered in Walker v. Schultz, 175 Mich 280. There property that had in fact been platted, but as to which the plat had not been recorded, was conveyed in accordance with its unplatted description, the mortgage, however, containing a provision for the release of lots by the payment of $15 each with accrued interest. Many lots were sold to various parties. A purchase-money mortgage taken back on the premises was foreclosed by advertisement, the property being sold at sheriff’s sale as an entirety and bid in by the mortgagee. Defendant Schultz claimed under a quitclaim deed from the mortgagee whose title was based on said foreclosure. Plaintiffs in the case were the owners of lots affected, and filed a bill of complaint in the nature of a suit to quiet title. The suit brought in issue the validity of the foreclosure sale. In holding that the'sale was in violation of the statute and that plaintiffs were entitled to equitable relief notwithstanding a claim of laches based on delay in bringing suit, it was said, in part (p 290):
“Under the conceded facts in this case, Kudner’s foreclosure sale and purchase of the property as an entirety, and not in distinct lots or parcels, was a palpable disregard of the plain provisions of CL 1897, §11139 (How Stat [2d ed] § 13934). To have the mortgaged subdivision sold in separate parcels was a substantial right of the owners of the fee, designed to protect the various interests of separate owners from prejudice or loss. This provision of the statute has several times been passed upon by this Court and sales made in violation of it defeated. Lee v. Mason, 10 Mich 403; * * * Clark v. Stilson, 36 Mich 482; Durm v. Fish, 46 Mich 312; Keyes v. Sherwood, 71 Mich 516; Hawes v. Insurance Co., 109 Mich 324 (63 Am St Rep 581); O’Connor v. Keenan, 132 Mich 646. These decisions settle beyond possibility of doubt that the statutory requirement violated in this case is not merely directory, that the irregularity went to the foundation of the purchaser’s title, and the sale was invalid.”
Walker v. Schultz, supra, was followed in Jerome v. Coffin, 243 Mich 324. There a purchase-money mortgage was given in connection with a sale of unplatted property in Greenfield township, Wayne county. A provision of the mortgage, however, indicated that it was the intention of the purchaser to use the land for subdivision purposes, it being stipulated that any lot or parcel might be. released from the lien of the mortgage upon payment of “a sum of money to be agreed upon for each lot.” The mortgagor being in default defendant began statutory foreclosure by advertisement, and the premises were advertised and sold as a single parcel. Suit was brought for equitable relief and was granted in the trial court on the ground that, the foreclosure sale was invalid under the provisions of the statute. In affirming the decree, it was said, in part (pp 329, 330):
“Plaintiff insists that the premises here involved were not at the time of the sale occupied as one parcel, and that for this reason the sale in gross was invalid. Upon this question, the burden rests on plaintiff. While other States have regarded similar provisions as directory only, this Court has treated them as mandatory, and has frequently sustained bills to redeem from sales which have not followed the statute. The provision is in the interest of parties entitled to redeem, and designed to protect the right to redeem each parcel separately. Twenty-eight of the lots have been sold on contract. Doubtless all the vendees in such contracts would insist, as interveners insist, that they have at least a constructive occupancy of the lots so purchased. But beyond this lies the fact that 3.53 acres were dedicated to the public for streets and alleys. The record does not disclose just how much of the dedicated land had been occupied by the city, but it does disclose that before the sale some of it at least had come under the occupancy of the city for street purposes, for alley purposes, for sewers, and for water mains, in other words, for the public use. Upon this record we are unable to distinguish the instant case from Walker v. Schultz, 175 Mich 280.”
Among other decisions involving a situation analogous to that in the case at bar is Northwestern Loan & Discount Corp. v. Scully, 256 Mich 202. The mortgage there involved covered a parcel of land described by metes and bounds. Subsequently portions were sold by the mortgagor under land contracts, some of such parcels being released from the lien of the mortgage. The remainder of the property, including parcels sold but not released, was offered at the statutory foreclosure sale as an entirety and was bid in by the mortgagee. After the period of redemption had expired, the mortgagee filed a suit in equity for foreclosure of the mortgage on the ground that the sale under the statutory proceed ing was void. A decree in favor of defendants was reversed, this Court saying, in part:
“The statute, CL 1929, § 14431, requires mortgaged premises, consisting of distinct tracts or lots, not occupied as one parcel, to be sold separately. The purchasers under land contracts had at least constructive occupancy of their several parcels at the time of sale and their rights should have been recognized. The title acquired by plaintiff is questionable, and the question is not solved by laches or the attitude of the mortgagor. The sale is vacated. This restores the mortgage. Stackpole v. Robbins, 47 Barb (NY) 212.”
Counsel for the Tranberg estate cites and relies on Long v. Kaiser, 81 Mich 518. The facts there involved were-somewhat unusual. The owner of a lot located in the village of Onsted, Lenawee county, mortgaged it as one parcel to the defendants to secure the payment of an indebtedness of $800. Subsequently a like mortgage as security for the payment of $200 was executed. The mortgagor sold to one of the defendants a portion of the mortgaged lot, the instrument of conveyance containing a provision referring to the mortgages in question and providing for their assumption and payment by the grantee. Thereafter the balance of the lot was conveyed by the owner to his brother, the plaintiff in the case, whether as a sale or as a gift not appearing from the opinion in the case. In subsequent foreclosure proceedings the mortgaged lot was sold in its entirety. The plaintiff later filed suit in equity alleging that the grantee of a portion of the lot had assumed the mortgage and agreed to pay it, and that the portion subsequently deeded to plaintiff should be relieved from the sale and from the mortgage lien. The trial court so decreed, but this Court reversed on the ground that under the facts as found by the circuit judge the mortgagee could not be compelled to accept a part of the property as security for payment of the debt. Such issue is not involved in the case at bar, no claim being here made that lot 132 was not subject to the mortgage. Plaintiff’s position is that the mortgaged property should have been sold as separate units, that they were in fact such, and that the sale as one parcel was in violation of the statute. Plaintiff in Long v. Kaiser, supra, based his right to relief on the equities of the situation and not on the statute here involved. The case varies both as to facts and issues from the controversy now before'us. Our problem here is whether the statute was violated in the conducting of the sale.
It is of course obvious that 2 or more lots may actually be so occupied and used as to constitute a single parcel within the meaning of the statute. Such a situation was presented in New England Mutual Life Ins. Co. v. Lindenbaum, 276 Mich 111. There a brick building consisting of 5 stores and apartments, with garages in the rear, was constructed on 3 of 4 lots covered by the mortgage. On the fourth lot and a portion of one of the 3 lots another building, consisting of stores and flats, was built. A mortgage on the 4 lots was foreclosed under the statute by advertisement and the property sold in its entirety. It was the claim of the plaintiff that the sale should have been made in 2 parcels on tho theory that there were 2 separate buildings. However, it appeared that said buildings were separated only by a fire wall and not a party wall. Under the peculiar facts involved this Court upheld the decree of the trial court sustaining the sale. See, also, the discussion in the opinion in Petoskey v. Home Owners’ Loan Corp., 300 Mich 391.
The trial judge in dismissing the hill of complaint did not pass on the question whether at the time of the sale the 2 lots were occupied as 1 parcel. Prom the record before us it clearly appears that they were not so used at that time. We are not concerned with whether Mr. and Mrs. Tranberg employed both lots in carrying on their landscaping business or whether Mr. and Mrs. Bisson did so. When lot 132 was sold on land contract to plaintiff no interest in lot 131 passed. The instrument provided that plaintiff might use the office in the basement of the house on lot 131 subject to termination if said lot were sold. It is evident that plaintiff and defendants Bisson did not consider that the landscaping business necessitated the use of both lots. No mention was made of using lot 131 for storage or for the accommodation of equipment otherwise. When plaintiff took over the business it appears that he made some arrangement with the tenant in possession of the residence on lot 131 whereby the latter would receive telephone messages. Apparently this was a voluntary arrangement with the tenant subject to termination at any time, and if any equipment was allowed to be placed on lot 131 by the tenant, such was a mere matter of sufferance. It does not appear that plaintiff claimed any rights in lot 131 or that he actually used the office in the basement. It may well be questioned if his arrangement with the tenant in possession as to telephone calls constituted such a use. Actually it involved the rendition of a personal service by the tenant of lot 131. Such arrangement was made by plaintiff and the owner of lot 131 had nothing to do therewith. The situation clearly appears from the deposition of defendant Edgar R. Bisson which was taken in accordance with a motion for discovery made by counsel for the Tranberg estate. The opinion of the trial judge indicates that by stipulation of counsel this deposition was included in the agreement as to the facts, and submitted accordingly.
The significant facts in the case are that plaintiff after operating the landscape business for a period immediately following his purchase thereof sold the equipment and the business and, as appears from the Bisson deposition, that no such business was thereafter conducted on either lot. We note in this connection that the administrator of the Tranberg estate in his brief criticizes plaintiff because he failed to use the proceeds, or any portion of the proceeds, derived from the sale of the business, asserted to be the sum of $4,500, in discharging any part of the obligation owing to the estate. However, such failure does not bear on the question as to the validity of the foreclosure sale. We are concerned solely with that issue and not with any general equities that may have arisen from the acts of the parties.
It is of some significance also that at the time of the sale the administrator was present and, as before noted, raised some question as to whether there were parties present that might wish to bid on the lots separately. Such conduct indicates that it was recognized at the time that such bidding would be permissible. It is obvious that the administrator, acting on behalf of the estate, might have made separate offers for the lots. No reason to the contrary is apparent, or is claimed. However, such course was not followed. Without discussing the record before us in further detail we think it fairly appears that at-the time of the sale these lots did not constitute a single parcel. They were not occupied or used together at that time.
Counsel also suggests reliance on the rule, recognized in foreclosures in equity, that if bids may not be obtained for separate parcels the property covered by the mortgage may be sold in its entirety. However, the provisions of the statute relating to equitable foreclosures and granting to the court certain discretionary powers with reference to the manner of sale are not applicable to sales under statutory foreclosure. In an equity suit parties in interest are entitled to he heard before the court, and objections to confirmation of a sale may be submitted. As before noted, one who seeks the statutory remedy in preference to resort to the equitable proceeding is bound to comply with the statute. For the reason indicated Burroughs v. Teitelbaum, 309 Mich 251, is not in point. The same comment applies to Walsh v. Colby, 153 Mich 602 (126 Am St Rep 546).
Counsel for plaintiff has submitted a motion to strike certain statements in the brief and appendix filed on behalf of the Tranberg estate. In determining the facts and issues involved irrelevant statements by counsel, mere conclusions, or allegations finding no support in the record must be disregarded. This has been done in the instant case. No useful purpose would be served by a discussion of the specific matters raised by the motion, which may he considered as denied.
The sale having been conducted in violation of a mandatory provision of the statute pertaining thereto the conclusion cannot he avoided that it was invalid. A decree will enter in this Court granting the relief sought by plaintiff in his hill of complaint. The validity of the mortgage is not affected, and, in consequence, such decree will not preclude foreclosure and sale of the mortgaged premises in accordance with the statutes pertaining thereto, nor constitute a bar to a suit in equity in which matters not embraced within the scope of the present case may properly be raised and determined. Plaintiff may have costs.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
CL 1948, § 692.1 et seq. (Stat Ann and Stat Ann 1959 Cum Supp § 27.1221 et seq
CL 1948, § 692.7 (Stat Ann § 27.1227), quoted in full ante, 516.— Reporter.
Previously quoted.—Esportee.
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] |
Edwards, J.
This is a controversy over 3 feet of property paralleling the boundary line between lots owned by 2 adjoining neighbors. Plaintiffs claim that a survey indicates that the true boundary line gives them ownership of a portion of a driveway previously used exclusively by defendants. After hearing, the circuit judge dismissed plaintiffs’ bill of complaint, and plaintiffs appeal.
Plaintiffs are the record title owners and land contract purchasers of the west 1/2 of lot 9 and the east 3 feet of lot 8, and defendant Elizabeth Milligan is the owner of lot 8 with the exception of the 3 feet noted. Lots 8 and 9 originally had a frontage of 50 feet and a depth of 140 feet, and they front on Amanda street in the city of Sault Ste. Marie.
It appears that the transfer of the east 3 feet of lot 8 from defendant’s predecessors in title to plaintiffs’ predecessors in title occurred in 1937 and resulted from a survey which purported to show that part of the house now owned by plaintiffs was located on property owned by defendant’s predecessors in title.
At hearing of this cause plaintiffs’ predecessor in title, Earl H. Brock, testified that a survey of the premises of the west 1/2 of lot 9 showed his house to be located partly on his neighbor’s lot, and that he bought 3 feet of lot 8 to bring his land to the eaves of his house on the west side.
This record indicates that the new boundary was related to physical markers, was agreed to by the parties, and that the owners of the balance of lot 8 continued to use all the rest of the area between the 2 houses for a driveway appurtenant to lot 8 until June, 1957.
In 1957 another survey, upon which plaintiffs’ claim is based, showed plaintiffs’ boundary to be farther west than the parties had previously believed, and hence plaintiffs sought use of the driveway between the houses as a joint driveway.
Defendant refused this request, and plaintiffs filed a bill of complaint to enjoin defendant’s continued use of the area in dispute. Defendant answered by claiming ownership of the entire driveway by deed and by adverse possession for 37 years.
It appears that defendant Elizabeth Milligan has had title to the balance of lot 8 for just under 15 years, but that use consistent with defendant’s claims as to location of the boundary had extended through predecessors in title for a considerably longer period of time.
A claim by adverse possession cannot generally prevail by tacking on possession by predecessors in title. CL 1948, § 609.1 (Stat Ann § 27.593); Killmaster v. Zeidler, 269 Mich 377; Stewart v. Hunt, 303 Mich 161.
The circuit judge, however, noted that the boundary location herein was fixed by the parties in 1937 after the purchase of the 3 feet previously referred to and had been acquiesced to by all parties for 20 years thereafter. He said:
“From then on the ownership of the property treated this line as the boundary between their properties and the facts brought out in the testimony clearly establish a mutual agreement between the predecessors in title. * * *
“As a general rule acquiescence in a line fixed by oral agreement need not be for the full statutory period required in cases of adverse possession. Acquiescence for a reasonable period short of that time may be conclusive. 8 Am Jur, Boundaries, § 75, pp 799, 800; Smith v. Hamilton, 20 Mich 433 (4 Am Rep 398); Jones v. Pashby, 67 Mich 459 (11 Am St Rep 589).”
The rule relied upon was set out thus in Jones v. Pashby, 67 Mich 459, 461, 462 (11 Am St Rep 589):
“It has been frequently held in this State that where parties by mutual agreement, and for that express purpose, meet and fix a boundary line, and thereafter acquiesce in the line so established between them, such line will be considered the true line between them, notwithstanding the period of such acquiescence falls short of the time fixed by the statute of limitations for gaining title by adverse possession.”
This states a rule well established in this and most other jurisdictions. Tripp v. Bagley, 74 Utah 57 (276 P 912, 69 ALR 1417); Jones v. Scott, 314 Ill 118 (145 NE 378); Cooper v. Austin, 58 Tex 494; Steinhilber v. Holmes, 68 Kan 607 (75 P 1019); Turner v. Bowens, 180 Ky 755 (203 SW 749).
See, also, 23 Mich L Rev 547; 69 ALR 1430, 1433, and cases collected thereunder.
This Court has in recent years reviewed the doctrine of establishment of a boundary line by acquiescence in Johnson v. Squires, 344 Mich 687. This case held that the acquiescence of predecessors in title could be tacked to that of the parties. See Hanlon v. Ten Hove, 235 Mich 227 (46 ALR 788); Renwick v. Noggle, 247 Mich 150.
There appears to be no doubt but that an agreement of the parties as to the location of the boundary followed án Uncertainty as to its location and was subsequently acquiesced to by all parties for 20 years. •'
-Affirmed. Costs to appellees.
Dethmers, C. J.,' and Carr, Kelly, Smith, Blaoic, and Kavanagh, JJ., concurred.
Souris, J., took no part in tbe decision of this case. | [
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Souris, J.
(dissenting). Mary Miller was an employee of F. W. Woolworth Company for about 9 years. At the time of her discharge on November 22, 1958, she worked as a dishwasher and waitress at defendant company’s soda fountain in one of its stores. Upon application for unemployment compensation benefits following her discharge, the Michigan employment security commission determined that plaintiff was disqualified from receiving such benefits, her discharge from employment having been for misconduct connected with her work, within the meaning of section 29 (1) (a) (2) of the employment security statute. CL 1948, § 421.1 et seq., as amended (Stat Ann § 17.501 et seq., as amended). On appeal, the referee and the appeal hoard of the commission likewise found that plaintiff was discharged for misconduct in connection with her work. The referee found:
“that the employer has affirmatively established, by a preponderance of the evidence, that the claim ant carried on a pattern of behavior which was objectionable and inimical to the interests of the employer. It is found that the claimant was discharged after having been given several warnings to improve in her actions.”
Specifically, the referee found (and the appeal board affirmed) that Mary Miller’s misconduct consisted of “using foul, profane, obnoxious language towards or about supervision, towards customers or in the presence of customers, and otherwise conducting oneself in a manner contrary to the best interests of the employer.”
Miss Miller thereupon sought certiorari in the Wayne circuit to review the appeal board’s determination. The circuit court found error and entered a judgment of reversal. From such judgment the F. W. Woolworth Company has appealed to this Court.
Section 29 (1) (a) (2) of the act provides that a claimant shall be disqualified from receiving the benefits of the act for the duration of his unemployment where, among other things, the claimant “has been discharged for misconduct connected with his' work or for intoxication while at work.” CLS 1956, §421.29 (Stat Ann 1959 Cum Supp § 17.531).
Section 38 of the act provides that “the findings of fact made by the appeal board acting within its powers, if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive” and “said court [the circuit court of the county in which the claimant resides] may reverse such decision of said appeal board upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence.” CLS 1956, § 421.38 (Stat Ann 1959 Cum Supp § 17.540).
As we view this appeal, the only question presented to the Wayne county circuit court for decision (and th'e only question presented to this Court) was the adequacy of the evidence considered by the appeal board, upon which evidence the appeal board found that plaintiff had been discharged for misconduct connected with her work. We are bound by the legislative mandate contained in section 38 of the act to affirm the appeal board’s finding of fact if such fact finding is supported by the great weight of the evidence. Peaden v. Employment Security Commission, 355 Mich 613. But, we are not hound to affirm when the administrative agency makes findings of fact contrary to the great weight of the evidence or, as in this case, in the absence of any competent evidence to support such findings of fact.
The referee and the appeal board found, as a fact, that the reason plaintiff was discharged was her misconduct connected with her work. Careful review of the record made before the referee (no additional evidence having been required by the appeal board as it is empowered to do by section 34 of the act) discloses no competent evidence that plaintiff was discharged for misconduct. There should he no misunderstanding on this point. Plaintiff may well have been discharged for actions constituting misconduct within the meaning of the act, hut be that as it may, defendant failed to produce below any evidence competent for consideration (and such evidence apparently was available to it) to establish the reason for plaintiff’s discharge.
Defendant produced 2 witnesses in its behalf, Mr. Spetter and Mrs. Cos. Mr. Spetter was the manager of its store in which plaintiff was employed. Mrs. Cox was manager of the store’s soda fountain where plaintiff was assigned to work. Mr. Spetter, not Mrs. Cox, fired plaintiff. It was incumbent upon defendant to prove the reason for plaintiff’s dis charge, and, in cases of this kind where discharge for misconduct connected with an employee’s work may disqualify her from receiving benefits under the act, it was also incumbent upon defendant to prove by competent evidence that the reason for discharge was such misconduct.
Mr. Spetter’s testimony can be summarized briefly as follows: He had received complaints from customers and from other employees about plaintiff’s use of foul language and insolent conduct, but he had never been present at the occurrence of any of the incidents related. He knew nothing about plaintiff’s conduct except what others had told him not in the presence of plaintiff. He was unable to testify from his own knowledge about any act of misconduct by plaintiff for which he discharged her. As a matter of fact, the incident which caused Mr. Spetter to “make up his mind to take action” against plaintiff, and the real reason for which the trial court found plaintiff to have been discharged on November 22, 1958, was a complaint received from one of the employees (not otherwise identified) concerning plaintiff’s conduct in serving a customer a grilled cheese sandwich. Upon proper objection having been made at the hearing before the referee, this testimony was ordered stricken. The net result of Mr. Spetter’s testimony was that he fired plaintiff because he had received complaints regarding her conduct from unnamed customers and other employees. Had such customers or other employees been presented as witnesses to testify regarding their observations of plaintiff’s conduct which they reported to Mr. Spetter, defendant might have succeeded in proving the reason for its discharge of plaintiff was for misconduct connected with her work.
The only other witness offered by defendant was Mrs. Cox, who related in some detail her trials and tribulations with Mary Miller. If Mrs. Cox were believed, and it is clear that the referee and the appeal board did believe her, there had long been ample reason to discharge plaintiff. The difficulty in equating the testimony of Mrs. Cox to Mr. Spetter’s reasons for discharging plaintiff is found in the following examination of Mrs. Cox by counsel who then represented defendant:
“Q. Mr. Spetter has testified that he discharged Mary on November 22,1958. Did you have anything to do with her separation?
“A. Not on that date, but the day before that when she had sassed me back before a customer when I asked her and told her there was a customer to be waited on and she said, ‘So what?’ Just the same as to say the customer didn’t mean nothing. I went to Mr. Spetter and asked him to let me give up managing the fountain rather than to take that before her, which I had taken a lot of times before. But that wasn’t the day that he discharged her.
“Q. Now, on any other occasion did you report to —or would you report to Mr. Spetter in regard to this girl?
“A. No. That was the only time. I always took it off of her before.”
The only time Mrs. Cox ever reported or complained of plaintiff’s conduct to Mr. Spetter was on November 21, 1958, when plaintiff “sassed me back before a customer”. Mr. Spetter’s testimony about this complaint was, “We had had a little trouble the day before,” but he did not say anything to plaintiff about it for the reason that he did not want to lay her off because he needed that kind of help with Christmas approaching.
The only competent evidence of misconduct by plaintiff was offered by Mrs. Cox. None of the incidents related by her at the hearing, which could be construed by this Court as constituting misconduct within the meaning of the act, was reported to Mr. Spetter, nor was there any evidence that anybody else reported those incidents to Mr. Spetter. The only thing Mr. Spetter knew about the relationship between Mrs. Cox and plaintiff was the “massing” of Mrs. Cox by plaintiff on the day before plaintiff’s discharge. But, as indicated above, Mr. Spetter had his own reasons for not discharging plaintiff for “sassing” Mrs. Cox. Thus, the record is barren of competent proof of any misconduct by plaintiff for which she was discharged.
The act disqualifies from its benefits a claimant “discharged for misconduct connected with (her) work”. To invoke the bar of disqualification, discharge must be proved to have been for misconduct. The appeal board should have awarded plaintiff benefits under the act, defendant having failed to prove by competent evidence that the cause for plaintiff’s discharge was her misconduct.. Mr. Spetter’s testimony about plaintiff’s conduct, for which he discharged her, consisted entirely of hearsay and was not entitled to be given any evidentiary weight whatever by the appeal board in determining whether or not plaintiff was disqualified from the benefits of the act. Mrs. Cox’s testimony about plaintiff’s conduct, on the other hand, although disclosing ample grounds for discharging plaintiff, should not have been considered by the appeal board because it was not proved that plaintiff was discharged for the conduct about which Mrs. Cox testified.
Accordingly, the judgment of the circuit court reversing the order of the appeal board should be hereby affirmed. Costs to plaintiff.
Smith and Edwards, JJ., concurred with Souris, J.
Black, J. The portents of Mr. Justice Souris’ motion — to affirm reversal of this administrative decision — are doubly disturbing. He suggests that the circuit court may, on issuance and return of certiorari to review a decision of the appeal board of the employment security commission, introduce for the purposes of appellate decision the issue-framed controversy-features of a common-law action; whereas the proceeding brought up by the writ is purely administrative in nature, quite as nonadversary as legislation can make it, and subject to specially limited review when due return of the writ is made.
There is no solutional difficulty in this case once we perceive that Miss Miller has neither sued nor drawn upon her employer as at law; that she has applied to the employment security commission for benefits according to procedures authorized by the statute under which she claims; that the commission itself is designated by the statute as “an interested party” (see sections 36 and 38 of the act, CLS 1956, §§ 421.36, 421.38 [Stat Ann 1959 Cum Supp §§ 17.538, 17.540]); that the participant function of the commission is that of statutory administrator of a public trust fund the claimant may or may not have a right to tap depending on administrative appraisal of the whole of the evidence brought before its administrative arms; and that the appeal board (when called upon) is vested with independent duty as well as plenary authority to decide each claimant’s qualification for benefits without regard for the fact or nature of opposition, if any, by the employer or, for that matter by the commission itself.
Let the point be tested by this simple question: May an employer stipulate for payment of benefits as claimed, or fail to object properly to payment of such benefits, and so bind the referee and appeal board to a decision in favor of the claimant? If not, and surely the answer must be “No,” the employer’s action or inaction during the course of such an administrative hearing interferes not one whit with the appeal board’s duty and authority to decide for or against the claimant’s qualification for benefits “on the basis of evidence” before it.
First: To me the presently proffered opinion is an unabashed motion to depart from established rules which, so far, have restricted the scope of judicial review of administrative decisions; to circumvent the administrative duty-provisions of section 34 of the employment security act (CLS 1958, §421.34 [Stat Ann 1959 Cum Supp § 17.536]), and to ignore at least for this case of Miller our obligation and that of the circuit court to limit review to the limited questions outlined in section 38 of the statute and our decisions construing that section.
The most recent declaration of our function, on review of unemployment benefit cases, appears in Mr. Justice Smith’s opinion of Knight-Morley Corp. v. Employment Security Commission, 350 Mich 397, 411, the substance of which was adopted in Jerry McCarthy Highland Chevrolet Co. v. Department of Revenue, 351 Mich 558, 566. That declaration embodies the procedural rule that the reviewing circuit judge may reverse the appeal board’s decision (on what the statute calls “a question of fact”) when and only when that decision “is contrary to the great weight of the evidence.”
So far at least, decisions of the appeal board are reviewable in circuit only by certiorari. See men tioned section 38 óf the employment security act. The scope of review includes the power and duty of judicial ascertainment inter alia, of the specific legal question: Whether the scrutinized administrative decision is or is not contrary to the great weight of the evidence? Since the statute does not conflict with any present court rule, it is an adopted rule of practice by virtue of section 3 of Court Rule No 1 (1945) (see corresponding application of said section 3 in Darr v. Buckley, 355 Mich 392, 396). It follows that when the writ is issued and returned as in said section 38 provided, it brings to the court of issuance (and to this Court in turn) questions of law only. See discussion of this point in the respective opinions of Imlay Township Primary School District No. 5 v. State Board of Education, 359 Mich 478. And see the conclusion of Mr. Justice Smith’s dissenting opinion of Lenz v. Mayor of Detroit, 343 Mich 599, 610 (with which conclusion I agree), reading as follows:
“Moreover, we are committed to the well-established and salutaiy. rule that in our review of certiorari we pass neither on the weight of the evidence nor on the credibility of the witness. There being no total lack of evidence to support the finding of the trial'court, we will not disturb it on certiorari or on review thereof. Gaines v. Betts, 2 Doug (Mich) 98; Randolph v. City of Dearborn, 298 Mich 224; Great Lakes Greyhound Lines v. International Union, UAW-CIO, 341 Mich 290. There is no error of law in this case.”
Now what, the present record examined, is before us? Is it not this limited question: Whether the appeal board’s finding of disqualificationary misconduct is — as a matter of law — contrary to the great weight of the total evidence adduced, rather than contrary to the great weight of that portion of such evidence my Brother has selected as his target? More of this later.
I would turn immediately to the reasonably portentous consequences of a decision upholding this employee’s claim as against this record-supported finding of the appeal board. No matter how pious our protestations to the contrary may be, the presently proposed jury-room analysis of testimony given before Referee Sternberg, and my Brother’s pick- and-choose conclusions from such analysis that no proof supports the administrative finding of statutory misconduct, are bound to expose the holy flanks of this Court to open criticism, hitherto veiled, that some of our membership are rigidly wont to apply the orthodox rule of limited review on certiorari to the appeal board when the board’s decision favors benefits as claimed; yet fail to do so when the board happens to deny such benefits (compare the respective opinions of Knight-Morley, supra, with those of Peaden v. Employment Security Commission, 355 Mich 613). When I signed Mr. Justice Smith’s. opinion of Knight-Morley it was on the supposedly dependable assumption that all signers were committing themselves to the judicial-administrative doctrines of Stason and Stone (quoted on pages 420 and 421 of Knight-Morley’s report) and to the cor responding analogy of test on review of a jury’s verdict when the latter is assailed as in McConnell v. Elliott, 242 Mich 145, 147 (quoted by Mr. Justice Smith on page 419 of Knight-Morley’s report). The fact is that we cannot escape, if affirmance in this case of Miller be our will, the appearance of having strained mightily to find some devious way — when there is no rightful way — -to a holding that these administrative findings of fact do not support the appeal board’s decision.
I suggest that my Brother has overlooked the meaningful feature of administrative proceedings which under the employment security act are supposed to determine the right of a claimant to unemployment benefits. Legal issues are not framed, on pleadings or otherwise, as in our common-law courts. The proceeding is wholly statutory. Its purpose is to determine whether benefits, when applied for, shall or shall not be paid from a public fund of public trust. The fund is not that of the employer in any sense. Whether he opposes the claim or not, the responsibility of the commission and its administrative arms with respect thereto remains the same. Such fund is made up and maintained almost wholly by contributions exacted of employers generally and nationally under “the legislative scheme for unemployment compensation induced by the provisions of the social security act of 1935” (see footnote 2, Unemployment Compensation Commission of Alaska v. Aragon, 329 US 143, 145 [67 S Ct 245, 91 L ed 136]). For these reasons I hold that the technical failure of this employer to assign as reason for discharge “a series of episodes,” rather than a “particular incident,” does not affect the board’s finding of statutory mis conduct if, as the circuit judge conceded below and my Brother concedes here, the testimonial record does actually contain evidence of such misconduct.
Second: This leaves the hare question whether the total evidence adduced before the appeal board supports, legally according to our quoted test on judicial review, its finding of disqualifying misconduct on the part of Miss Miller. I think it does. Here is the record upon which I conclude that the circuit judge had no alternative other than to affirm the appeal hoard (quotation from referee’s, findings as confirmed by the appeal hoard):
“Employer’s witness testified that, from time to time, the claimant became irritable and handled the dishes roughly. "When claimant was directed to perform some work, she would flare up and would become upset, and resorted to foul language. She used foul and profane words in reference to her employer, in her conversations with customers, and in the presence and hearing of customers. Claimant was warned repeatedly about her conduct, and about her attitude towards her supervisor. The situation had become so sufficiently obnoxious by November 21st, that, at that time, claimant’s supervisor appealed to the store manager and asked to be released or transferred from her position, because she could not ‘take it any more,’ she could not stand the claimant’s abuses. Claimant was discharged for these reasons on November 22, 1958.”
The testimony upon .which these findings are based was given principally by Mrs. Cox, manager of the soda fountain and supervisor of the fountain help (including Miss Miller). Mrs. Cox connectedly testified:
“Q. In regard to her conduct other than sassing you back? You said you warned her, told her customers come first?
“A. Oh, yes. I’ve warned her about that different times, and the' different things that she would do when I., would tell her to do, why she’d usually have a comeback to me. But I just took it as long as I could take it.
“Q. Did you witness at any time her use of swear words ?
“A. You mean actually a swear word, swearing at me?
“Q. Or at anyone while she was working?
“A. Not particularly at anyone. It was just using foul language in the fountain.
“Q. Did you ever— * * *
“A. Well, one time I was — especially on making up sundaes and different things. She was always using the wrong — I mean too much, more than what you’re supposed to put on. One time I was trying to more or less, scare her to get her out of it, and I told her, I said, ‘Mary, Mr. Spetter is really going to get after you if you keep using 2 dippers of fudge on those hot fudge sundaes.’ She said, ‘To hell with Mr. Spetter.’
“Mr. Chambers: When was this?
“A. Well, that was, oh, I’d say 6 weeks before she was discharged.
“Q. (By Mr. Galloway): Was that the only foul language that you ever heard her — ■
“A. That’s the only one she ever said back to me, but I have heard her say, ‘This damn place.’ That is to customers. Not to me. To customers.”
To conclude: I would say that the circuit judge misapprehended his limited judicial function in 2 separate respects. He determined-that it was'his right to make a new and independent finding of'fact” for decisional purposes, and then determined that he was free to disregard Mrs. Cox’s testimony for reasons given by him as follows:
“Mr. Donovan (employer’s counsel): Would you take this, Mr. Reporter, please? ..
“What I am anxious to be sure of is whether the court is disposing of this matter as a question of law or as a question of fact?
“The Court: Well, it isn’t always easy to say where a question of law begins and a question of fact ends. My reason is that Mr. Spetter, the employer’s witness, who has shown remarkable forbearance and tolerance in this1 situation, has assigned a reason for the discharge of plaintiff, and I find that since he relies upon an incident by competent evidence, and that there is no competent evidence establishing it.
“Now, the referee below appears to have ignored his stated reason and to have found as a matter of fact that the discharge was based upon the previous experiences Mr. Spetter and others in supervision had had with the employee. To this extent my finding of fact differs from that of the referee. If I should have made the same finding of fact which he' did, that the discharge was based upon a series of episodes rather than as this person testified, upon the particular incident, then I would find that there was evidence to support the conclusion of misconduct and the resultant discharge.”
I vote to reverse and remand for entry of order affirming the decision of the appeal board.
Kelly, J., concurred with Black, J.
CLS 1956, § 421.31 (Stat Ann 1959 Cum Supp § 17.536).—Re-PORTER.
The Knight-Morley opinion of Mr. Justice Smith opened and concluded with these significant observations:
“It is not our function, nor that of one of our subordinate courts, to substitute our judgment on the facts for that of the fact-finding tribunal, or to usurp the function that the legislature has vested in the agency. We have not been free from sueh usurpation in the past (Hazel Park Racing Association, Inc., v. Racing Commissioner, 343 Mich 1) and it should not continue.” (pp 417, 418.)
“We conclude that under the statute here before us our scope of review is no broader than that exercised by us in setting aside a jury’s verdict, our latitude no greater. It may, indeed, due to the differing considerations of skill, policy, and function of the fact-finding tribunals in the governmental process, be far narrower.” (P 421.)
“In fact what the court did was to make its own appraisal of the testimony, picking and choosing for itself among uncertain and conflicting inferences.”
This quotation is from the supreme court’s unanimous judieialadministrative opinion of Federal Trade Commission v. Algoma Lumber Company, 291 US 67, 73 (54 S Ct 315, 78 L ed 655). The opinion was written by Mr. Justiee Cardozo, and the quotation was made one of the principal buttresses of Mr. Justice Smith’s thoroughgoing dissertation, in Knight-Morley, supra, upon the slender and limited function of the courts when they are called upon to review decisions of administrative tribunals. Did not Justice Smith say, with concurrence of 3 additional members of this Court and formal majority adoption thereof later (in McCarthy, supra) :
“If such words as overwhelming weight, great weight, and clear weight have approximately the same content ,we would be justified in saying that we should not reverse the finding of the administrative tribunal on an issue of fact unless we would set aside a jury verdict under similar circumstances.”? (pp 419, 420 of Knight-Morley’s report.)
To bring the concession into direct focus, I quote it from my Brother Souris’ opinion as follows:
“Mrs. Cox’s testimony about plaintiff’s conduct, on the other hand, although disclosing ample grounds for discharging plaintiff, should not have been considered by the appeal board because it was not proved that plaintiff was discharged for the conduct about which ;M;rs testified.
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Smith, J.
The parties hereto were married on May 29; 1937. Bill of complaint for divorce was filed by the husband on October 24, 1955, alleging various acts by the wife subversive of the marriage relationship." Trial was had in due course, resulting in the grant of a decree in favor of the husband. No award of alimony was made, but the wife did receive custody of the children and a property settlement. Some time later, upon rehearing, the decree was amended with respect to certain property.
The appellant asserts that the evidence is not sufficient to support a decree of divorce on the ground of extreme and repeated cruelty. She then reargues certain facts for a few sentences, drawing conclusions favorable to herself therefrom. Appellee replies that the facts reargued are not facts at all and controverts the conclusions drawn by the appellant. It would add nothing to the jurisprudence of this State to review the testimony. We are not persuaded of error. See Tackabury v. Tackabury, 334 Mich 157.
During the pendency of this suit in our Court, upon petition, and after reference back to the trial chancellor, we ordered that plaintiff pay defendant the sum of $25 per week for support and maintenance commencing October 5, 1959, and continuing until the further order of this Court. Such payments will cease with the entry of our opinion. Plaintiff now prays that upon our disposition of the case the sums so paid to defendant “be credited to the appellee against the cash allowance awarded to the appellant.” We will remit this case to the trial chancellor for ruling upon, and final disposition of, the prayer in the light of the circumstances presented.
Appellant has stated that she is “without funds to prosecute this appeal,” and petitions us for counsel fees and expenses of appeal. These we deny. Barely have we seen an appeal so utterly lacking in merit.
Subject to the above the decree is affirmed, with costs to appellee.
Dethmers, C. J., and Carr, Nelly, Black, Edwards, Navanagh, and Souris, JJ., concurred. | [
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Edwards, J.
Louise H. Miner died October 5, 1957, leaving a will which bequeathed the bulk of her estate to a surviving adopted daughter, Kathleen Miner Crary. The will also contained a bequest of $15,000 to the City Bank & Trust Company of Jackson, Michigan, as trustee, and directed payment of the income on this sum to John Miner Caruthers, referred to in the will as testatrix’ grandson.
John Miner Caruthers appeared and filed objections to the will, charging fraud and undue influence and that testatrix lacked mental competence to make a valid will. City Bank & Trust Company, as one of the executors and proponents of the will, thereupon filed a motion to dismiss the contest on the ground that the contestant was not a person who had any interest in the estate of Louise H. Miner. The circuit judge, after a hearing and the taking of testimony on the motion to dismiss, granted it, and contestant Caruthers appeals.
Prom the record before the circuit judge concerning the motion to dismiss, the following relevant and undisputed facts appear: John Miner Caruthers is the natural son of Maxine Miner Caruthers and her husband, Eugene Caruthers. His mother had been the subject of an adoption petition and order filed in Jackson county probate court. The adoption order was dated July 2, 1919, and was based upon a consent signed by the Michigan’s Children’s Home Society.
The adoption file, which was introduced in the hearing on the motion to dismiss, contained a release from the natural and legal mother, hut did not contain a release from the father although the release referred to the child as legitimate.
Maxine Miner Caruthers died in 1944. It appears from this record that her adoption was never attacked or disputed in any way during the lifetime of the parties immediately concerned with the adoption.
This case presents 2 interesting questions pertaining to the Michigan adoption statutes:
First, is the natural and legal son of a (how deceased) mother who was herself an adopted child, an “interested party” for purpose of contesting the will of the person who adopted his mother?
Second, on this record, is the adoption order of 1919 subject to collateral attack and void because the adoption file does not contain or refer to a release from tbe father?
The circuit judge held that contestant was not an interested party because he was neither “issue” nor “a lineal descendant” within the meaning of the Michigan statutes of descent and distribution. Having thus decided the first question, he had no need to pass on the second.
As to the first question, the controlling statutory language pertaining to will contests is “any interested party.” CL 1948, § 701.36 (Stat Ann 1943 Rev § 27.3178 [36]). Contestant claims to be an interested party in the will because he claims that if it is disallowed, he thereupon becomes an heir-at-law of deceased under the Michigan statutes of descent and distribution.
The applicable statute providing for the descent of real property is as follows:
“When any person shall die seized of any lands, tenements or hereditaments, or of any right thereto, or entitled to any interest therein in fee simple, or for the life of another, not having lawfully devised the same, they shall descend, subject to the payment of all prior charges as provided in this act, in the following manner:
“First, 1/3 to his widow, and the remaining 2/3 to his issue; and, if he leaves no widow, then the whole thereof to his issue, and, if the intestate shall be a married woman, 1/3 thereof to her husband and the remaining 2/3 to her issue; and, if she leaves no husband, then the whole thereof to her issue.” CL 1948, §702.80 (Stat Ann 1943 Rev § 27.3178[150]).
The word “issue” is statutorily defined as including “all the lawful lineal descendants.” CLS 1956, § 8.3, subd 8 (Stat Ann 1957 Cum Supp § 2.212, subd 8).
Hence, the question becomes, is Caruthers, on this record, a “lawful lineal descendant” of the deceased, Louise H. Miner?
Just 2 weeks prior to the death of Louise H. Miner in 1957, an amendment to the adoption statutes of Michigan became effective. The section with the new language italicized now reads as follows:
“Upon the entry of the order of adoption, such child shall, in case of a change of name, thereafter be known and called by said new name, and the person or persons so adopting said child shall thereupon stand in the place of a parent or parents to such child in law, in all respects as though the adopted child hacl been the natural child of the adopting parents, and be liable to all the duties and entitled to all the rights of parents thereto. Thereupon there shall be no distinction in any ivay behveen the rights and duties of natural children and adopted children, and such child shall thereupon become the heir-at-law of such adopting person or persons, as well as the heir-at-law of the lineal and collateral kindred of the adopting person or persons, and entitled to inherit property from such person or persons in accordance with the law of descent and distribution of this State: Provided, That nothing herein shall affect his right to inherit from or through his natural parents. On the death of the adopting parents, custody of the adopted child shall be determined as though the child toas natural born of the adopting parents.” CLS 1956, § 710.9, as amended by PA 1957, No 255 (Stat Ann 1959 Cum Supp § 27.3178[549]).
It appears clear that it is this statute which is controlling in our present case since it is the one which was in effect at the death of the intestate. In re Loakes’ Estate, 320 Mich 674; In re Dempster’s Estate, 247 Mich 459.
See, also, 18 ALR2d 960.
Appellant contends that absent the 1957 amendatory language just quoted, he would still be entitled to be regarded as an heir-at-law under the statutes of descent and distribution. In this regard, he relies upon In re Rendell's Estate, 244 Mich 197, and Fisher v. Gardnier, 183 Mich 660, as well as a 1956 opinion of the attorney general, No 2405, p 104.
The case upon which the trial judge based his grant of the motion to dismiss was decided subsequent to both cases and the opinion. It held squarely that for purposes of a statute granting a State inheritance tax exemption, the terni “lineal descendant” did not include the natural child of an adopted daughter of a decedent. In re Smith Estate, 343 Mich 291 (51 ALR2d 847).
The opinion in this case contained this language (p 299):
“Able amicus curiae argues to us that:
“ ‘A sound policy requires that the consequences of an adoption should, for the adopting parents, be the same as the consequences of a natural birth and that if a couple has through the adoption process accepted the responsibilities of parents that couple should have the same rights and privileges as are enjoyed by others who became parents by the birth process.’
“The argument is compelling but it is addressed to the wrong forum. It lies within the province of the legislature, not of this Court, to assimilate the position of the adopted child completely to that of the natural child, should sound social policy so require.”
It was decided October 3,1955. Subsequent thereto, the Michigan legislature enacted the amendments to the adoption laws which we have previously quoted. The amendatory language included that adoptive parents of an adopted child should stand in the place of his parents “in all respects as though the adopted child had been the natural child of the adopting parents,” and “thereupon there shall be no distinction in any way between the rights and duties of natural children and adopted children.” The statute as it now stands makes reference to an adopted child as “heir-at-law of the lineal and collateral kindred of the adopting person or persons, and entitled to inherit property from such person or persons in accordance with the law of descent and distribution of this State.”
Appellee’s basic argument, however, does not deny this. It admits that the 1957 amendment gave the adopted child the right to inherit under the statutes of descent and distribution, but argues that it made no reference to the children of the adopted child.
We cannot escape the conclusion that the 1957 legislative enactment resulted directly from the invitation contained in the Smith Case, and that our current case is governed by it.
We believe that the right to have their children inherit under the statute of descent and distribution was one of “the rights” as to which the 1957 amendment abolished any remaining distinctions as between “natural children and adopted children.” We can think of few instances where the legislative intent has been more clearly indicated.
On this record (assuming adoption of his mother by Louise H. Miner), John Miner Oaruthers is a lawful lineal descendant of Louise H. Miner, and hence an “interested party” for purposes of the will contest.
This, of course, requires us to deal with appellee’s contention that the 39-year-old adoption order was void because neither it nor the file contained reference to a release by the natural and legal father to the agency which consented to the adoption.
Appellee’s brief, in this regard, asserts that the “father, William Craig, did not consent to her adoption.” This record contains no such affirmative showing. The consent upon which the adoption or der is based is that of the Michigan Children’s Home Society, which is in the probate file. What is missing is any release by the father to the Michigan Children’s Home Society, similar to that of the mother which is contained in the file and dated a year and a half preceding the date of the adoption.
At this point, .we have no way of ascertaining what the actual facts were. Of the many possibilities, we will mention only 2. There may have been a release signed by the father which was subsequently lost from the file. The father may have died before the adoption, and this fact may have been proved before the probate judge. Failure to have such a fact properly recorded would hardly render the adoption order void.
In such speculation, we are engaged in groping in the mists of history. Appellee suggests that the judicial order is void where a fact which is needed to show statutory compliance is thus obscured. To the contrary, the adoption order itself implies a finding of the necessary facts, and the burden of proof is on the party attacking it. Slattery v. Hartford-Connecticut Trust Co., 254 Mich 671; Von Beck v. Thomsen, 44 App Div 373 (60 NYS 1094), aff’d 167 NY 601 (60 NE 1121); Wilson v. Otis, 71 NH 483 (53 A 439, 93 Am St Rep 564); 1 Am Jur, Adoption of Children, § 33.
In the Slattery Case, supra, this Court, in upholding an adoption order subjected to a collateral attack, said (p 675):
“ ‘The better rule would seem to be that the adoption will be upheld as against a collateral attack unless the want of jurisdiction is affirmatively shown.’ 1 CJ, Adoption of Children, § 114, p 1394.”
Appellee relies upon In re Ives, 314 Mich 690. In that case the natural mother brought habeas corpus to attack a recently entered adoption order on the ground that she received no notice of the proceeding. The parties and the facts herein are dissimilar.
Appellee City Bank, in attacking the adoption proceedings of 1919, stands at best in the shoes of testatrix. Testatrix petitioned for the adoption, recognized it, reared her adopted daughter in her own home, and never in any wise prior to her death sought to upset the adoption order. Her will describes contestant as “my grandson.” Louise H. Miner would long ago have been held estopped to dispute the validity of the adoption order. Slattery v. Hartford-Connecticut Trust Co., supra; In re Gunn’s Estate, 227 Mich 368. So is her representative after her death.
Reversed for denial of motion to dismiss will contest, and remanded for further proceedings. Costs to appellant.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred. | [
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Long, J.
The respondent was arrested upon .a complaint and warrant issued by a justice of the peace, charging an assault with intent to do great bodily harm less than the crime of murder. He waived examination before the justice, and was bound over for trial in the circuit court. He was informed against in the circuit, the information containing two counts, — one for assault with intent to do great bodily harm, and the second count for assault -and battery. He pleaded not guilty, and went to trial before a jury, who convicted him under the second count. On appeal here it is insisted that, there being no testimony taken before the justice, and no assault and battery charged in the complaint and -warrant, the prosecuting attorney had no authority to include that charge in the information.
The case is ruled by Washburn v. People, 10 Mich. 383 There it was said:
“It is not doubted that a defendant, unless a fugitive from justice (which is not pretended here), has a right to insist upon such examination before he can be put upon his trial, or called upon to answer the information. But the statute is express that he may waive this right, and we think he may waive it when called upon to plead to the information, as well as when brought before the magistrate for examination. It is not a matter which goes to the merits of the trial, but to the regularity of 'the previous' proceedings. If he makes no objection on the ground that such examination has not been had or waived, he-must be understood to admit that it has been had, or that he has waived, or now intends to waive, it. If he intends to insist upon the want of the examination, we think he should, by plea in abatement, set up the fact that it has not been had, upon which the prosecuting attorney might take issue, or reply a waiver; or he must, upon a proper showing by affidavit, move to quash the information.”
In People v. Jones, 24 Mich. 215, the respondent pleaded not guilty to the information, and went to trial. The-people, having introduced their evidence in chief, rested, when the respondent moved to quash the information, on the ground that there was no complaint against him for the crime alleged in the information, and that he had never been examined upon the charge contained in the information. This Court said:
“ Had this motion been made before pleading not guilty to the information, it must have prevailed. But, as the statute expressly authorizes a defendant to waive an examination, we think it clear, as held by the majority of the Court in Washburn v. People, 10 Mich. 383, that he may waive it as well when called upon to plead to the information as when brought before the magistrate for examination; and we think the plea of not guilty must be treated as such waiver.”
The respondent in the present ease must be treated as haying waived an examination upon the count charging assault and battery, by pleading and going to trial, under the rule laid down in the above cases.
In the case of Turner v. Circuit Judge, 88 Mich. 359, referred to by counsel for respondent, the information did not contain any count for assault and battery, and it was held that no amendment could be made to include that offense.
The conviction must be affirmed.
The other Justices concurred. | [
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] |
McGrath, C. J.
The information contained two counts. 'The first charged defendant with the larceny of a horse; the second, aiding in the concealment, well knowing it to have been stolen. The jury found Harris guilty under the .second count.
It is insisted that the testimony tended to show that he was guilty of larceny, but did not tend to show that he was guilty of aiding in the concealment; and the case of People v. Partridge, 86 Mich. 243, is relied upon. In that case the testimony tended to show that respondent had .actually committed the offense charged in the first count, .and the offense charged in the second count was an assault ■without intending to commit the crime charged in the first. In the present ease, Harris was some miles away when the horse was actually taken, and the jury have undoubtedly found that he was not actually or constructively present when the crime was committed. 1 Whart. Crim. Law (9th ed.), § 927. But the proofs tended clearly to show that Harris knew that the horse was stolen;, that he was actively engaged in assisting in the disposition of the horse; that he had represented to persons to-whom he and his associate were endeavoring to sell the-horse that they owned the horse, and, again, that his associate owned the horse, and that the horse was poor in flesh because his associate’s children had been driving and caring-for the horse; that, when arrested, he claimed to the sheriff' that “we bought the horse,” and, again, that his associate owned the horse.
The testimony clearly brings the case within the rule of People v. Reynolds, 2 Mich. 422, where, referring to section 9142 of the statute, making it an offense to “aid in the concealment” of stolen property, knowing it to have-been stolen, the Court say:
“The evil intended to be guarded against by the enactment of that law was to prevent persons from rendering-important, efficient services' to a felon, in aiding him in the concealment of stolen property; and that aid must be deemed quite as important and efficient which would enable the principal felon to convert the stolen property to his own use, or which would enable him to remove the-property beyond the reach of the owner, and thereby prevent its recaption, as if he had effected the same object by aiding and assisting him in depositing it in some place-of secrecy. * * * Any disposition of the property which would have a tendency to conceal it from the observation of the owner is within the meaning of this law, and it cannot be presumed that the thief could convert the stolen property to his own use without using means to conceal it from the owner: therefore it will follow that the- charge of concealment may be well sustained by evidence tending to show that the defendant aided the thief in converting the stolen property to his own use.”
The conviction is affirmed.
The other Justices concurred. | [
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Long, J.
This cause came on for trial in the Wayne circuit court December 2, 1890, and occupied the entire time of the court and jury, with the exception of occasional adjournments on account of the illness of jurors and counsel, until April 25, 1891, when the plaintiffs had verdict and judgment for $91,531.38. Defendant brings error.
The record shows that on April 13, 1891, Mr. Stamm, one of the jurors, who had been quite ill for several days, was discharged by order of the court, against the protest, of defendant’s counsel, and the trial directed to proceed with the 11 remaining jurors. The 11 jurors rendered the above verdict. Error is assigned upon this ruling. On the argument here, counsel were confined to this one question, as defendant’s counsel insist that this amounted to a mistrial.
It is to be regretted that the rights of the parties cannot be settled upon the present record, which has taken so much time in the court below, and involved so large an expense; the record containing over 3,500 pages of printed matter. But the question raised is one of great importance to the jurisprudence of the State and the rights of litigants in the courts, and the Court should not hesitate, on account of the immense interests involved, to settle at the outset so important a principle. This is the first time since the enactment of the statute upon which plaintiffs’ counsel rely to sustain the verdict that the question has been brought to the attention of this Court, though it is believed that in some of the circuit and justices’ courts the statute has been construed as contended by plaintiffs’ counsel.
It is not important to enter upon an investigation of the history of the right of trial by jury. Just how it had its origin is involved in some mystery; but, whatever its origin, the right of trial by a jury of 12 men became fixed centuries ago in the common law, and unanimity of verdict became requisite, until, wherever the Anglo-Saxon tongue was spoken, and in many other countries, this right came to be regarded as the great bulwark of the liberty of the citizen. Whether charged with an offense against the commonwealth, or in a controversy with another, the right could always be invoked. When separated from the mother country, we regarded it as a birthright, and have ever been jealous of any attempted innovations upon the system. In adopting constitutions for our government and guidance, our fathers had in mind the great charters of English liberty; and the right of trial by jury, as it was understood at the common law,- was not the least of those rights. Sir Matthew Hale says (2 Hale, P. C. 161): “But in case of a' trial by the petit jury it can be no more nor less than twelve;” and at page 296 he says: “If only eleven be sworn by mistake, no verdict can be taken of the eleven; and, if it be, it is error.” This was the sense in which the common-law jury was understood, — a jury of 12, whose verdict must be unanimous.
The Legislature of this State, in 1861, passed the following act:
“An Act to facilitate trials and proceedings by jury.
“ Section 1. The People of the State of Michigan enact, That, after the impaneling of a jury for any purpose, if from death, sickness, or any other cause any of said jurors shall be unable to attend, the court in which said jury is , impaneled may enter that fact upon their journal or docket, setting forth the cause of such inability; and said cause or other proceedings shall then proceed in the' same manner, and with the same effect, as if the whole panel were present: Provided, the number of jurors so absent shall not be greater than three in a jury of twelve, or two in a jury of six, and that this act shall not apply to the trial of criminal cases in courts of record." Act No. 142, Laws of 1861 (How. Stat. § 7622).
The constitutional provisions relating to trial by jury in this State are as follows:
Article 6, § 27: “The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law.
“ Section 28. In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve men in all courts not of record," etc.
Article 4, § 46, provides:
“The Legislature may authorize a trial by a jury of a less number' than twelve men."
Defendant’s counsel contend:
1. That the constitutional provision permitting the Legislature to authorize a trial by a jury of a less number than 12 does not apply to circuit courts.
2. That the act of 1861 is unconstitutional and void for the reasons:
a — That the Legislature does not thereby “authorize a trial by a jury of a less number than twelve men," within the meaning of the Constitution.
T) — That the Legislature has not authorized a trial by a jury of a less number than 12 men; on the contrary, in courts of record, on demand of either party, the common-law jury of 12 men must still be called and sworn to try the cause, and the Constitution does not empower the Legislature to change the essential features of the trial by jury at the common law.
c — That the constitutional provision above cited does not empower the Legislature to authorize part of the jury to render the verdict; that is, whatever number the Legislature may prescribe, trial by a jury of that number must retain the essentials of trial by a jury of the common-law number.
Whether this constitutional provision applies to circuit courts we shall not pass upon or decide, so well convinced are we of the unconstitutionality of the act. It is confessed that this provision does not apply to the trial of criminal cases in courts of record. The objection to the act is that it does not purport to authorize a trial by a jury of a less number than 12, except upon a certain contingency, and that contingency destroys the unanimity of the verdict; it does not preserve the common-law right of a unanimous verdict of a jury, which the Constitution recognizes by section 27, art. 6, which provides that “the right of trial by jury shall remain." Mr. Justice Cooley, speaking of this clause, in Tabor v. Cook, 15 Mich. 322, 325, says:
“The intention here is plain to preserve to parties the right to have their controversies tried by jury in all cases where the right then existed; * * * and suitors •cannot constitutionally be deprived of this right, except where, in civil cases, they voluntarily waive it by failing to demand it in some mode which the Legislature shall prescribe."
Mr. Justice Christiancy, in Hill v. People, 16 Mich. 351, 355, says:
“ Our Constitution, in retaining the right of trial by jury, tacitly refers to and adopts the common-law number.”
In Van Sickle v. Kellogg, 19 Mich. 49, 52, Cooley, C. J., in speaking of this clause of the Constitution, says:
“The constitutional principle which underlies the right is one to which the people governed by the common law have clung with perhaps more tenacity than to any other; and they have justly regarded it as not preserving simply one form of investigating the facts in preference to another where both would have obtained the same result, but as securing the mode of trial which was best calculated to insure a just result, and to secure the citizens against the usurpation of authority, and against arbitrary or prejudiced action on the part of single individuals who chanced to be. possessed of judicial power.”
In Underwood, v. People, 32 Mich. 2, Mr. Justice Campbell says:
“ The right of trial by jury is secured by constitutional provisions, and it would not be competent to make any substantial changes in its character.”
And again, in Paul v. Detroit, Id. 108,114, the same learned Justice, speaking of the mode of taking' land for public uses prior to the adoption of the present Constitution, says:
“ The Constitution [article 18, § 2] has changed this by requiring the whole subject to be determined by a jury of freeholders, so that each case shall be determined by a separate tribunal, summoned expressly for the purpose, who must be unanimous in their views before any land can be taken; Avho must act openly and before all concerned in hearing and receiving testimony; who cannot, listen to private persuasion, and where any attempt to influence them will subject the offender to severe and disgraceful punishment. All these safeguards are implied in the use of the term ‘jury;’ and no action, by laws or by proceedings under them, can be maintained if any of these securities are impaired or disregarded.”
In Swart v. Kimball, 43 Mich. 443, 448, Mr. Justice Cooley, again speaking of section 21, art. 6, providing that “the right of trial by jury shall remain,” says:
“What right? Plainly the right as it existed before;, the right to a trial by jury as it had become known to the previous jurisprudence of the State. * * * The right is not described here; it is not said what shall be its. incidents; it is mentioned as something well known and understood under a particular name; and by implication, at least, even a waiver of its advantages is forbidden.”
Mr. Justice Ranney, in Work v. State, 2 Ohio St. 303, speaking of a like provision of their constitution, says:
“An institution that has so long stood the trying tests ■of time and experience, that has so long been guarded with scrupulous care, and commanded the admiration of so many of the wise and good, justly demands our jealous •scrutiny when innovations are attempted to -be made upon it."
It is too well settled to need further citation of authority or argument to show that this part of the Constitution (article 6, § 27), providing that “ the right of trial by jury shall remain," means the right as it existed at the common law, which was well understood in the previous jurisprudence of the State at the time of the adoption of the Constitution in 1850. This right was a trial by a jury of 12 good men and true, whose determination must be unanimous upon the rights of the parties. This the'Constitution of 1850 preserves, except that under section 46, art. 4, the Legislature may authorize a less number than 12. ■Conceding that this provision applies to circuit as well as inferior courts, does the act authorize a less number, within the meaning of this clause of the Constitution, and at the same time preserve the right of trial by jury as it was known at the common law and in the previous jurisprudence of the State? We think not. If the Legislature had fixed the number at 11, or 9, or 6, the right would yet remain to have that number impaneled and sworn well and truly to try the case, and render a verdict by the vote and voice of every juror. One vote or voice less would not be a jury trial as it was understood when the Constitution was adopted.
Under the act in controversy here, there' is no such thing known or provided for as the impaneling of any jury ■except such a jury as was known at the common law; that is, a jury of 12, and no lesser or no greater number. It must be 'a jury of 12; and, unless this number were impaneled and sworn to try the cause, it would be a mistrial, within the provisions of the act. An attempt was made, however, by the Legislature by this act, without reducing the number to be impaneled to try the cause,— as provided by article 4, § 46, — to give the trial court, under certain- circumstances, the power to fix and determine the number that may try the cause. Granting that the Legislature has the power to fix and determine the number at less than 12, it has not done so by this act, but has attempted to confer upon the trial courts the power to do so. Under the Constitution, this is not a power which the Legislature may delegate to any court or other tribunal. It is a matter of the gravest concern to the people. They have not surrendered a right to trial by jury such as it was understood to be before the Constitu_ tion was adopted, but have granted the right to the Legislature to fix a less number than 12, if, in its judgment and discretion, it so determines, but preserving all the other incidents of the trial by jury as it was known and understood before, which means a unanimous verdict of the number fixed by the Legislature. The Legislature, by the act, has not reduced the number, but seeks to destroy the common-law incidents of the trial, by giving the trial court power not only to discharge part of the jury at any stage of the proceeding, but to proceed with the trial before a less number, and take a verdict that shall be binding upon a party, however strenuously he may insist, upon his constitutional right to a trial by jury as that right is preserved to him. This cannot be the true interpretation of these clauses of the Constitution. It destroys the unanimity of the verdict of 12 men. As well might the Legislature have attempted to provide for the rendition of. a verdict by a less number than 12. Such authority would no more destroy the unanimity of the verdict than do the provisions of this act. If this juror could be discharged at the end of four months, and after nearly all the testimony had been put in, and the jury had gone over the line of the road and examined it, then he could have been discharged, under the act, at any time before verdict. Would it be contended if, after the jury had •entered the jury-room to deliberate on a verdict, one had there been taken ill before verdict found and returned, that 11 men could have returned the verdict? We think not; and yet the act is broad enough to cover such a case.
We are aware that in some of the courts it has been held that if a jury of more than 12 men has been impaneled, and the last juror sworn can be pointed out during the trial, he may be dismissed from the panel, and the trial may proceed (Miurhead v. Evans, 6 Exch. 447; Bullard v. State, 38 Tex. 504; Davis v. State, 9 Tex. App. 634); but these decisions do not reach the point in “controversy here. In such cases the right to a,trial by jury remains inviolate, and the cases proceed upon the theory that the 12 originally impaneled are ascertained, and that such a stage in the proceedings has not been reached that the additional juror has any influence npon the minds or judgments of the other jurors. But in these cases it is settled that, if the jury had once gone into the'jury-room for deliberation, it would be a mistrial.
We are constrained to hold the act unconstitutional and void. It follows, then, that there has been a mistrial, and the verdict and judgment must be reversed, with costs, and a new trial granted.
G-rant and Durand, JJ., concurred with Long, J. | [
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Montgomery, J.
The plaintiff brought an action for money had and received.
He had for some time before and after the transaction over which the controversy arose been a depositor of the defendant, and had a pass-book in his possession, upon which was entered the amount of deposits made, and the date, and in which he was charged with money drawn. The footing made upon this book showed the account of plaintiff overdrawn. This result was rea'ched, however, by treating an entry under date of November 19, 1889, as a credit of $105. Plaintiff testified that on this date he deposited $405. This the defendant strenuously denied, and the pass-book was produced and put in evidence by the defendant as sustaining its claim. The left-hand figure in the entry shows one downward stroke of the pen, which is distinct, and another stroke of the pen to the right of this, somewhat obscure; and it was also claimed by the plaintiff that there were indications of a horizontal stroke of the pen at or near the foot of the first left-hand mark, and extending to the right in such a manner as to indicate that the writer intended to make a figure 4. Whether this was true was properly treated as a question of fact by the trial judge. Armstrong v. Burrows, 6 Watts, 266.
The plaintiff called three witnesses to express ah opinion as to whether the figure was a figure 4 or a figure 1, and they were permitted to express an opinion upon this question'. In this there was no error. In Stone v. Hubbard, 7 Cush. 595, expert witnesses were permitted to testify as to whether the last figure in the date of a note, claimed by tbe defense to have been 1842, and by the plaintiff to have been 1844, was a 2 or a 4. It was said by Bigelow, J.:
“ The rule is well settled that, when characters in which a paper is written are obscure and difficult to be deciphered, the evidence of persons whom practice and experience in examining writing have made skillful is competent for the purpose of aiding the court or jury in arriving at a true reading of the document.”
See, also, Sheldon v. Benham, 4 Hill, 129; Norman v. Morrell, 4 Ves. 769; Masters v. Masters, 1 P. Wms. 421; 1 Greenl. Ev. § 280.
Error is also assigned upon the refusal of the circuit judge to give defendant’s second request, which reads:
“ The books of the bank and the deposit slip are prima facie evidence of the money received by defendant from plaintiff on November 19, 1889, and determine the amount of money deposited on said day by plaintiff, unless disproved by a preponderance of evidence on the part of plaintiff. If not so disproved, your verdict must be for the defendant.”
It is apparent from the other requests presented that the books referred to were the books retained by the bank, and the request was not intended to include pr have reference to the pass-book retained by the plaintiff. In this view it was not error to refuse the request. The passbook retained by the plaintiff was the book of original entry. Certainly, as between this book and the books retained by the bank, the Tatter were not entitled to greater credence.
We find no error in the record. The case was fairly submitted to the jury for their determination upon the question of fact, and, if the result is an injustice to the defendant, its remedy was by motion for a new trial.
The judgment will be affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
Plaintiff and defendant Sbanaban were owners of adjoining lots. Plaintiff resided upon ber lot, and Mr. Sbanaban let a contract to defendant Apel for tbe erection of a bouse upon bis lot. Plaintiff claimed, and gave evidence tending to prove, that various acts of trespass were committed by Apel and bis workmen upon plaintiff’s lot. Tbe court directed a verdict of not guilty as to defendant Sbanaban, and tbe jury acquitted defendant Apel.
1. Tbe instruction to acquit defendant Shanaban was correct. He neither committed, authorized, nor directed tbe acts complained of. He cannot be held liable simply because be was tbe owner of tbe lot, and tbe work was being done for bis benefit.
2. Tbe circuit judge instructed tbe jury:
“If tbe plaintiff has satisfied you, by a preponderance' of evidence, that she lias been willfully and maliciously injured, your verdict will be for tbe plaintiff; if she has. not, your verdict will be for tbe defendant.”
Tbe instruction was erroneous. No willfulness or malice on tbe part of defendant Apel was necessary to the plaintiff’s recovery. For this error tbe judgment must be set aside as to defendant Apel, and a new trial ordered. But it will be affirmed as to defendant Sbanaban, with costs..
Tbe bill of exceptions consists of 112 pages, and contains tbe entire testimony taken. It should have beem condensed into a very few pages. For this reason no costs for printing record will be allowed plaintiff.
Tbe other Justices concurred. | [
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] |
Long, J.
The bill in this cause was filed to foreclose a mortgage. The mortgage was executed July 13, 1889, by William Steele to complainant, the consideration expressed being the sum of $35,000. It conveyed about 500 acres of land in the township of Ionia, Ionia county. It was signed by himself and his wife, Nancy J. Steele, and was executed at their home, in Ionia county, the complainant living at Grand Haven, this State. The condition of payment, as expressed, is: (
“If the said party of the first part shall and do well and truly pay, or cause to be paid, to the said party of the second part, the sum of $35,000, according to a certain promissory note executed by William Steele, bearing even date herewith, to the said party of the second part, to which this indenture is collateral security, then these presents and said note shall cease and be null and void."
The mortgage was recorded on August 39, 1889.
On the same day the mortgage was given, William Steele executed a deed of an undivided interest in the same premises described in complainant's mortgage to his wife, Nancy J. Steele. On the same day he executed a real-estate mortgage upon certain other property in Ionia city and township to William Dunham, of Grand Rapids, Mich.; also, upon the same day, he executed a mortgage upon certain property in the city of Ionia to his sister, Mary M. Hancock; also, upon the same day, he executed to the complainant in this case, Dwight Cutler, a chattel mortgage, purporting to be given'for the sum of $40,000, upon all the personal property, chattels, and effects of said William Steele situated in the county of Ionia; also, upon the same day, he executed a deed of all the land he then owned in Montcalm county, which was about 480 acres, to his brother Michael L. and wife, being a joint deed to Michael L. and Jessie J. Steele. On the 15th day of July of the same year, William Steele executed a bill of sale of all the personal property he then owned in the county of Montcalm to his brother James A. Steele. Bach of said conveyances was recorded upon the 29th day of August, A. D. 1889, within a very few, minutes of each other, excepting the last-named deed and the bill of sale to James A. Steele, which were not recorded until the •30th, or the next day.
At the time of the giving of the several conveyances, William Steele was indebted to the First National Bank of Ionia, Mich., in the sum of $15,000, and to the Grand Rapids Savings Bank in the sum of about $9,000. Between the date of the giving of the several conveyances herein-before referred to and the recording of the same, and on or about the 20th day of August, William Steele renewed, at said First National Bank of Ionia, one note of $3,000; and he also renewed one note at the Grand Rapids Savings Bank of $5,000 on July 12, and upon the 2d of August, A. D. 1889, renewed another note at the Grand Rapids Savings Bank, of $4,000. At the time of the renewals of the several notes referred to, neither the First National Bank of Ionia nor the Grand Rapids Savings Bank had any knowledge from the defendant William Steele, or from anybody else, but that William Steele was financially responsible, or that he had given any mortgages, deeds, or other conveyances upon any of his property; and the business was transacted and the money loaned or advanced entirely upon the supposed financial responsibility of the defendant William Steele.
TJpon the 4th day of February, 1890, the First National Bank of Ionia obtained a judgment against William Steele for $7,424.45, together with costs, making a total of $7,472.45, upon which execution was issued against William Steele, and the sheriff duly indorsed upon this •execution a levy upon the lands covered by complainant’s mortgage, and upon the same day filed a notice of such levy in the office of the register of deeds of Ionia county. The Grand Eapids Savings Bank of Grand Eapids, on the 5th day of February, 1890, duly recovered a judgment against William Steele as defendant, upon the notes given upon the 12th of July and the 2d of August, 1889, for the sum of $9,202.71. Execution was issued upon the same, a levy duly made on lands covered by said mortgage, and notice properly filed in the office of the register of deeds.
The note in this case, and which complainant claims is the note that was given with the mortgage, is as follows:
“Grand Haven, Mich., July 13, 1889.
“Nine months after date I promise to pay to the order •of Sarah O. Savidge twenty-five thousand dollars, at the First National Bank of Grand Haven, with interest at seven per cent., value received. William Steele.”
Hpon the back is indorsed: “ D. Cutler.”
It appeared upon the hearing helow that in the early part of July, 1889, Mr. Steele applied to Mr. Cutler, the complainant, for this loan of $25,000, which was to be secured by a mortgage upon real estate. Mr. Cutler did not have the cash to spare, but thought it could he obtained from Mrs. Sarah C. Savidge, and agreed with Steele to procure.him the loan. On July 13, 1889, Steele went to Grand Haven with the mortgage already executed by himself and wife. Mr. Cutler did not then have the money, but a note was prepared to Mrs. Savidge for that amount, and signed by Mr. Steele and Mr. Cutler, the complainant, and the money paid over to Mr. Steele. Mr. Cutler took the mortgage, and Mrs. Savidge the note. Mr. Cutler claims the mortgage was given to secure this note, upon which he was liable to Mrs. Savidge.
No actual fraud is claimed in the transaction. The defendants, however, deny the complainant’s right to foreclose his mortgage, unless it be subject to the liens of defendants the First National Bank of Ionia and the Grand Eapids Savings Bank, for the following reasons:
“1. That there was no debt in existence at the date of the execution of complainant’s mortgage.
“ 2. That the mortgage, if it is collateral to anything, is entirely different than the note offered in evidence, and which complainant claims was the debt in this case secured by his. mortgage.
“ 3. That the testimony of complainant shows beyond dispute that there was no mistake of fact in drafting the mortgage, and consequently he is not entitled to have it reformed by a court of equity.
“4. That, although the solicitors for defendant the Grand Rapids Savings Bank distinctly stated that they had claimed no actual fraud in their answer, nor proved any, and the solicitor for the First National Bank of Ionia said, in reply to a question by the judge, ‘We do not claim any actual fraud, your honor, as I suppose the Supreme Court has substantially passed upon that,' yet the defendants do and have at all times claimed that the .retaining of the mortgage, together with the other conveyances, from public record, in order to enable Steele to secure credit, was, in effect, a legal fraud, whether any actual fraud was intended or not.
“5. The fact that said mortgage was in existence from the 12th day of July, and not recorded until the 29th day of August, 1889, and that during the interval between the date of the giving of said mortgage, together with the other conveyances in the case, and the withholding of the same from public record, William Steele, the mortgagor, obtained credit at the defendant Grand Rapids Savings Bank for about $9,000, and at the First National Bank of Ionia for about $3,000, neither of said banks having any knowledge of the existence of said mortgage; and that the liens, by virtue of the executions of the defendants, should have priority to complainant's mortgage."
While it is true that the mortgage was made and signed by Mr. 'Steele and his wife on July 12, it is equally clear that the same was not delivered to Mr. Cutler until the 13th, and after the money was procured from Mrs. Savidge, and passed over to Mr. Steele. We think there is nothing in the first point made, that the mortgage was collateral to a different note than the one offered in evidence. Mr. Cutler fully explains the transaction, and how the note came to be made to Mrs. Savidge.
The real inquiry upon the hearing was whether or not there was a valid consideration for the mortgage; and parol evidence was admissible to show the true character of the mortgage, and for what purpose and consideration it was given. This inquiry was proper to be made. 1 Jones, Mortg. § 379. Mr. Cutler was holden for the payment of this $25,000 to Mrs. Savidge, and actually paid it before the commencement of foreclosure proceedings. He had a right to be secured for this indorsement, and was secured under this mortgage. The fact that the note was described in the mortgage as having been executed by Mr. Steele to Mr. Cutler, when in fact it was executed to Mrs. Savidge, was open to proof of the real facts by parol evidence. It was an inquiry into the real consideration for which the mortgage was given.
The mere fact that the mortgage was made and delivered July 13, and not recorded until August 29 following, and that in the mean time the notes had been renewed' by the two banks, would not, in the absence of fraud, vitiate the mortgage. In the case of a mortgage of chattels, the statute provides that there shall be a delivery of the chattels, followed by a continued change of possession, or the mortgage will be void, unless the mortgage, or a true copy thereof, be filed in the office of the township clerk. How. Stat. § 6193. There is no such provision of the statute in relation to real-estate mortgages, and no case has been cited holding that the mere fact that the mortgagee has failed to record his mortgage makes it void as against other creditors who have not acquired a lien, where no fraud is charged. The mortgagee did not lose the lien of his mortgage by this neglect, under the circumstances stated in this record, and the fifth proposition of defendants’ counsel has no force. The complainant took the chances that some innocent party might obtain a prior lien during the time his mortgage remained off the record; but, in the absence of fraud or collusion with the mortgagor, such delay cannot postpone his lien to one who has not obtained a lien in the mean time.
The decree of the court below will be affirmed, with costs.
McGrath, Grant, and Montgomery, JJ., concurred. Morse, C. J., did not sit. | [
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Morse, C. J.
Tbe defendant is sued as indorser upon a negotiable promissory note. Tbe plaintiff lives in Jackson county, and brought tbe action in tbe circuit court of that county, and recovered a judgment. Tbe defendant lives in Saginaw county, but has business interests in Jackson county which call bim there at times. It was shown at tbe trial that tbe note in suit was discounted at tbe People's Bank in Manchester, Washtenaw county, by tbe defendant, and that tbe bank was, at tbe time of tbe institution of tbe suit, and at tbe time of the trial, tbe owner of tbe note, but bad transferred tbe same for collection to plaintiff, in order that suit could be planted in Jackson county. Tbe plaintiff is a stockholder and director in tbe bank, and resides in tbe township of Norvell, Jackson county, wbicb adjoins tbe township in Washtenaw county in which tbe bank is located.
Tbe plea was tbe general issue, with notice of special defense. The defendant established tbe fact of the ownership of tbe note and tbe purpose of its transfer, and moved for a verdict upon tbe ground that tbe suit was brought in fraud of defendant's rights, tbe note being transferred for tbe purpose of suing bim away from bis home.
It does not appear, however, that tbe defendant was misled as to the real ownership of tbe note, or submitted himself to the jurisdiction of the court under any misapprehension of fact. It was known to him when he interposed his plea of the general issue, and thereby submitted himself to the jurisdiction of the court, that the action was not necessarily brought in the name of the real owner, and that an agent for collection was authorized to sue in his own name. Brigham v. Gurney, 1 Mich. 349; Lobdell v. Bank, 33 Id. 408; Boyd v. Corbitt, 37 Id. 52. It is unnecessary, therefore^ to determine what would be the proper practice in case a defendant were misled into pleading the general issue by appearances created by the plaintiff. The circuit court for the county of Jackson certainly had jurisdiction of the subject-matter, and where this is the case it is a general rule that a plea to the merits waives any irregularity in obtaining jurisdiction of the person. Grand Rapids, etc., R. R. Co. v. Gray, 38 Mich. 461; Gott v. Brigham, 41 Id. 227; Thompson v. Benefit Ass’n, 52. Id. 522.
An exception to this rule exists when the method of obtaining jurisdiction constitutes a fraud upon the court as well as upon the party, but such is not the case here.
The other points suggested are without merit, and the judgment should stand affirmed, with costs.
The other Justices concurred. | [
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Per Curiam.
The relator filed in the superior court of Grand Rapids a petition for the condemnation of all the rights of the Grandville Pland-Road Company in certain of the streets and highways of the said city, in the petition described. Summons was issued to the defendant, requiring it to appear and answer. Defendant appeared specially, and on the 21st day of September, 1892, the city attorney moved the court for an order directing the sheriff to write down the names of 24 disinterested freeholders of said city for the purpose of striking a jury therefrom. Defendant company, by its attorneys, filed objections to the court assuming or entertaining jurisdiction of the matter, for the following reasons:
“1. Because Act No. 36, Laws of 1891, under which the proceedings are had, is unconstitutional and void, in that it contravenes section 20, art. 4, of the Constitution of this State, and gives no authority to the petitioner to either purchase or condemn the rights of the company.
“ 2. Because, under the laws of the State, respondent is under obligation to keep and maintain five miles of road, and cannot negotiate for the sale, or sell, any part of its franchise to reduce its length to less than five miles; and it appears by the petition that the respondent only has and maintains five miles of road.
“3. Because the act does not in pterins or by necessary implication repeal the provisions of the law under which respondent is required to keep and maintain five miles of road; and, if respondent should voluntarily sell any portion of its present road or franchises, such sale would effect a forfeiture of its right to take toll on such portion of its road as might remain after such sale."
After hearing these objections the court refused to grant the order to strike the jury.
This is a petition for mandamus to compel the-judge of said superior court to proceed in the matter under said petition in accordance with the terms of the act. The answer admits the facts set up in the petition.
The defendant is a toll-road company, having the right to maintain gates and collect tolls on certain streets and highways of the city of Grand Rapids, and upon a certain highway outside of said city. The portion sought to be condemned is about one-half mile in length within said city limits, leaving it only four and one-half miles of road, which portion is entirely outside of the city. The defendant was organized under the plank-road act of 1851 (Laws of 1851, No. 155). By section 29 of that act (How. Stat. § 3624) it is provided that whenever any plank-road company shall have completed its road, or- any five consecutive miles thereof, the said company may erect toll-gates, and demand and receive tolls. This act was amended by Act No. 122, Laws of 1855, and by Act No. 232, Laws of 1875 (How. Stat. § 3650), by which it was provided that every plank-road company should have the right to receive tolls after it had constructed two consecutive miles of road; provided that the section should apply only to -plank roads during the period in which they were in the process of construction, and not afterwards.
The Legislature, by Act No. 36, Laws of 1891, provided that cities might acquire the rights of plank-road companies in their streets. The act is entitled—
“An act to authorize the cities and townships of this State to acquire by purchase or condemnation all the rights of toll or plank road companies in the streets or highways of such city or township, and to authorize such toll or plank road companies to sell the whole or any portion of its road or franchise to any city or township in which the same may be located, or to any other person or corporation.”
Section 1 of the act permits cities to purchase of the corporation upon such terms as may be agreed between it and the corporation. It is provided by section 2 that—
“In case no agreement can be reached for the purchase of the rights of such toll-road company, said city is authorized to condemn such rights, in which condemnation such city shall proceed as in the condemnation of lands for streets according to the provisions of Act No. 124 of the. Public Acts of 1883, and the acts amendatory thereof, so far as the same are applicable; but the damages to which such company may be entitled shall be paid wholly by said' city.”
Section 3 provides that—
“Any plank-road company organized under any of the laws of this State is hereby authorized to sell the whole or any portion of its road and franchises to any city, town ship, person, or corporation on such terms as may be mutually agreed upon.”
This act took immediate effect.
Section 20, art. 4, of the Constitution of this State provides that “no law shall embrace more than one object, which shall be expressed in its title.” ,The purpose of the act evidently is to enable cities and townships to acquire, either by purchase or condemnation, the whole or any part of the road beds and franchises of toll or plank road companies within the corporate limits of the city or township. But the act goes further, and provides that any toll or plank road company may sell, not only to cities and townships, but to any ' other corporation or person, any portion or all of its corporate rights and franchises. This latter provision certainly is not germane to the general purpose of the act. It is a distinct and separate purpose. All the means and ends necessary to the accomplishment of the general object would not be objectionable. If the title expresses a general purpose, all matters fairly and reasonably connected with that purpose, and all measures which would facilitate its accomplishment, would not be in conflict with the above provision of the Constitution. This has been so many times decided by this Court that the cases need not be cited. But it cannot be said that power and authority given to toll and plank road companies to sell a portion or the whole of their road-beds and franchises to any other corporation or person is germane to the general purpose of the act, which is to enable cities and townships to acquire them, for the purpose, evidently, of making the roads free from toll within such corporate limits. We think the act open to the objection made,— that it has more than one object.
The court below was not in error in so ruling, and the -mandamus must be denied.
Montgomery, J., did not sit. | [
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] |
Montgomery, J.
The bill in this case is filed to correct a mistake in a written contract for the sale of certain land in Lake county, and for an injunction to restrain proceedings at law which have been instituted by the defendant to recover the value of pine timber removed from the land by the complainant after the making of the contract in question.
The bill alleges. that the complainant entered into a parol agreement to sell the land in question for eight dollars an acre, reserving the pine and hemlock timber, and agreed to make a written contract; that, in pursuance of this agreement, the contract was reduced to writing, with the intent on the part of the complainant to sell, and of the defendant to buy, the land with the timber reserved to complainant; that, by mistake in the writing relating to the reservation, the word “pine” was omitted, so that the contract as executed does not conform to the intention of the parties. The defendant, by his answer, denies that by the oral agreement the pine was reserved, and denies that any talk occurred relating to a reservation of the pine timber.
The circuit judge heard the testimony in open court, and decreed the relief prayed for.
The defendant appeals, and in this Court contends that, while the testimony offered by complainant tends to show that there may have been a mistake on the complainant’s part as to the condition of the property when the contract of sale was made, it does not show a mistake or error in drafting the contract. The defendant’s contention is that the evidence shows that the complainant understood that all the pine was cut off, and therefore, so far from attempting to reserve the pine, deemed that there was no necessity for such a reservation; ahd that, while the defendant may have known that the complainant was laboring-under a mistake as to the state of the property, yet, as he was acting in no fiduciary relation, or any other imply ing trust and confidence, but was dealing with complainant at arm’s length, he was not bound to apprise complainant of its mistake; that there was in fact about 500,-000 feet of pine on the 40, and that the title passed to the defendant by the sale. And, further, that, if there-was a mistake made in drafting the instrument, it was not a mutual mistake, and that the averments of the bill cannot be supported by showing that the complainant understood that the contract contained a reservation of the pine, if it appears that the defendant knew that the contract contained no such reservation, and also that the complainant was acting under the mistaken belief that such a reservation was embodied in the instrument; that, in such a case, while relief might be granted on the ground of fraud, it cannot on a bill which avers mutual mistake.
Both contentions of defendant are answered by the facts, to wit: It appears by the testimony that defendant had previously purchased an adjoining 40 of complainant, and that it reserved the pine timber, and that it was complainant’s, custom in making sales of land to do so; that W. A. D. Bose was complainant’s foreman at Deer Lake, but not authorized to sell land; that in November, 1887, he wrote complainant as follows:
“Please give me your price per acre for the south-west quarter of the south-west quarter of section 1 — 18—11, pine-off. Biley Bice wants this.”
On November 5, 1887, Mr. Fox, treasurer of the complainant, in reply to this letter, wrote Mr. Bose:
“You may quote price of south-west quarter of south-west quarter of section 1 — 18-—-11, at eight dollars per acre; we reserving all pine timber.”
The evidence further shows that this was the sole authority Mr. Rose had. Mr. Rose testified that the sale was made in accordance with these instructions, and that in the oral agreement the pine and hemlock were reserved. The contract was drawn at Grand Rapids; and Mr. Osterhout, who ■executed it on the part of the complainant, has since deceased. The defendant, after receiving this contract, permitted the complainant to go on and lumber off the pine, and made no question about its right to do so. In 1889 the defendant directed the assessor not to assess the land to him, stating that he had got $70, or a little better, for what he had paid in, and it was not worth a hen an acre, and he could not pay for it.
One Charles H. Monroe was called as a witness for complainant, and testified as follows:
“Mr. Rice told me that if he had been sharp enough he might have had about a quarter of a million of pine that was on this 40.
“Q. What reason did he give for saying that he could hold it?
“A. That the pine was not reserved in the contract.
“Q. In that conversation, did he state when he first learned that the pine was not reserved?
“A. Well, he said he didn't know that it was not reserved until, I think it was Mr. Bush, called his attention to it."
This testimony tended very strongly to support complainant's claim that it understood that the pine was reserved, and also that the defendant so understood at the time the contract was executed. The conduct of defendant, as shown by his own testimony, strongly corroborates the complainant's theory. He testified as follows:
“Q. Did you notify the company at Grand Rapids that they were taking off your pine?
“A. No, sir.
“Q. Did you notify Mr. Bennett not to cut off any pine?
“A. No, sir: I didn't.
“Q. So that they were at work there for six weeks, to your knowledge, taking off the remainder of that pine?
“A. Yes, sir.
“Q. And yon never notified any officer of the company?
“A. No, sir.
“Q. But allowed it to take off the pine without a word of objection from you? Why did you do that?
“A. Because I thought I would let them, and see what they would do. I reckoned they wanted the timber, and knew what they wanted to do with it.”
It is not surprising that the learned circuit judge, in view of this testimony, found that there was a mutual mistake at the time this contract was executed, even though the defendant put forth the claim that he knew, when he signed the agreement, that it did not contain a clause reserving the pine, especially when the defendant had asserted in his answer that in the oral negotiations preceding the execution of the contract nothing was said about the reservation of the pine timber, although the weight of the credible testimony in the case showed that the pine timber had been reserved. There was ample testimony in the case to support the averments in the bill, and sufficient in defendant’s course of conduct to discredit him.
The decree of the court below will be affirmed, with costs.
McGrath, C. J., Long and Grant, JJ., concurred. Durand, J., did not sit.
Counsel cited in support of this contention Cooley, Torts, 474, 487; Benj. Sales, §§ 429, 447-450: Manning v. Albee, 11 Allen, 522; Medbury v. Watson, 6 Metc. 256; Brown v. Castles, 11 Cush. 350; Merwin v. Arbuckle, 81 Ill. 501; Brown v. Leach, 107 Mass. 364, 368. | [
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] |
Morse, C. J.
The action in this case was commenced before a circuit court commissioner for the recovery of the' possession of the S. of the S. £ of the N. W. {- of section 6, township 6 N., of range 17 E., county of St. Clair. The cause was appealed to the circuit court, where the-complainant had verdict and judgment.
The husband of the complainant, one Samuel Ganson, owned the N. $ of the S. of said N. W. £ of said section 6, and on the 30th day of July, 1886, he entered into the following agreement with the defendant:
“This memorandum of agreement, made and concluded between Samuel G-anson of the first part and Alvin Baldwin of the second part, witnesseth:
“That whereas, the said party of the first part, by reason of the uncertainties of life, and his condition and age, deems it necessary to place himself and wife under the protection and care of some kindly disposed person during the remaining portion of the natural life of himself and wife, Frezina.
“Now, therefore, it is agreed between the parties of the first and second part hereto that the party of the first part, for and in consideration that the party of the second part, during the natural life-time of the party of the first part, keep him and his wife, Frezina, in a comfortable condition of living, suitable to their situation in life, furnishing him all necessaries, and suitable board, food, clothing, medicines, and medical attendance, care, attention, and nursing in sickness or helplessness, washing, ironing, and mending, conveys to said second party by warranty deed the north half of the south half of the north-west quarter of section 6, township 6 north, of range 17 east, containing 40 acres of land; and the said party of the second part, for himself and his heirs, executors, or administrators, in view of the consideration before stated, hereby agrees to in all things comply with the recitals and requirements of the party of the first part hereinbefore stated.
“In case the said second party fails to comply, either in whole or in part, to fulfill his agreement, then the deed of said premises to be void and of no effect, and the party of the first part may at once re-enter and repossess himself of said premises without notice to quit; and the party of the second part, for himself, agrees fully to comply with the requirements herein contained and by him to be performed, or will reconvey said premises.
“And it is further agreed by the parties hereto that, in case the wife of the party of the first part should outlive him, the second party is only bound to a strict compliance of this agreement as to her support and maintenance as long as she remains on the premises now occupied by her, to wit, the south half of the south half of the north-west quarter of section 6, township 6 north, of range. 17 east.
“And it is further agreed by the parties hereto that the party of the second part is to have the use of the last-described premises, occupied by the wife of the party of the first part, during her life-time, excepting only the house thereon, and party of the second part to pay all taxes, ordinary as well as extraordinary, and all expense, on said premises during the life-time of said first party and his wife.
“Witness our hands and seals, this 30th day of July, A. D. 1886.
“Samuel G-anson. [l. s.]
“Alvin Baldwin, [l. s.]”
This agreement was duly acknowledged and recorded. At the same time Ganson deeded the north 40 to defendant and the south 40 to his wife. It is claimed by complainant that a bargain was also made as to the possession and occupation by the defendant of the south 40, the land in question here. This agreement, in substance, was that the defendant would keep complainant’s two cows, and she should have the orchard and garden, a pig in the pen, and chickens, and for the use of the place defendant should also give the Gansons their living.
Baldwin moved upon the place in the fall of 1886. April 17, 1890, the following notice to quit was served upon defendant:
“Sir: Take notice that, so far as I may be interesten by reason of my acquiescence or otherwise in a certain agreement dated July 30, 1886, signed by Samuel Gansod and yourself for the use and purposes therein expressed, as to the following described premises, to wit: The south half of the south half of the north-west quarter of section six (6), town six (6) north, range seventeen (17) east, and used and occupied by you since the date of said agreement, I have elected and do hereby declare the said agreement forfeited, and the terms and conditions thereof no longer binding upon me, on account of your failure to comply, either in whole or in part, your part of the terms and conditions thereof, viz., to furnish necessary and suitable board, food, clothing, medicines, and medical attendance, care, attention, nursing in sickness or helplessness, washing, ironing, or mending. Therefore, you are hereby notified and required at once to quit and yield and deliver up the possession of the said premises to me.
her
“Frezina X G-anson.
“Dated April 16, 1890.”
The defendant testified that he never had any agreement with Mrs. G-anson, but that in the spring of 1887, after he had taken possession of the place, he agreed with her husband that he would keep the two cows and a horse, and give them the garden and orchard, and furnish them their wood, and that they should keep themselves; and also told him that, if there was anything else he wanted, defendant would get it, when asked for it.
It will be seen that the only arrangement that could have been binding upon the complainant was the one testified to by herself. This 40 acres of land was her homestead, and could not have been sold or leased without her consent, even before it was deeded to her by her husband. The defendant testified that he never furnished complainant anything, and had no dealings with her. If the testimony as to the agreement was believed by the jury, the complainant was entitled to recover, as defendant admits such agreement was not fulfilled.
It is contended that there was no agreement of re-entry in the lease, and that the complainant was therefore not entitled to possession because of the failure of the defendant to fulfill his contract. The following cases are cited to support this contention: Dayton v. Vandoozer, 39 Mich. 749; Langley v. Ross, 55 Id. 163; Hilsendegen v. Scheich, Id. 468; Hanaw v. Bailey, 83 Id. 24; Pickard v. Kleis, 56 Id. 604; Wakefield v. Mining Co., 85 Id. 605.
Thése cases do not apply. According to the testimony of complainant, the main consideration for the use and possession of her land was her support. While there is no testimony that there Avas an agreement made in exact Avords that if defendant did not support her he should forfeit his possession of the premises, it cannot be successfully maintained but that the clear understanding must have been that the support of complainant Avas a condition upon which possession must be based. In the Avritten agreement between G-anson and defendant, under which defendant claims to hold the premises, there is a clause of re-entry and forfeiture, and it is not to be supposed for a moment that it Avas understood or intended by either party that the agreement to support Avas a covenant simply, and not a condition. In Langley v. Ross and Hanaw v. Bailey, supra, the re-entry clause Avas stricken from the Avritten lease, and in all of the cases cited the circumstances or wording of the agreement shoAved an intention not to make the failure to perform certain covenants a ground of forfeiture of the lease.
It is said that there was no demand for support, and that the lease could not be forfeited until such demand was made. We think there was sufficient testimony to go to the juiy, showing that complainant Avas dissatisfied because she received no support, and complained about it, and that defendant kneAv of this complaint, and refused to give any support.
This agreement, however, as testified to by complainant, was good for a year, and, while acquiesced in by her, the defendant must be considered as holding from year to year. Schneider v. Lord, 62 Mich. ,141; Huntington v. Parkhurst, 87 Id. 38, and cases there cited. The defendant was therefore entitled to a year’s notice to quit. 3 How. Stat. § 5774. The notice given was insufficient. But complainant’s counsel claims that no point was made against the notice in this respect in the court below, and that it is now too late to raise it here. A careful examination of the record, including defendant’s requests to charge, sustains this claim. It is also strengthened by the fact that, in the primal brief of defendant, no mention is made of this defect in the notice. As under the statute (section 5774, 3 How. Stat.) the notice given terminated the tenancy in one year from the date of its service, and the complainant is now entitled to the premises, and the •objection to the notice being first raised in this Court, the judgment of the court below will be affirmed, with costs.
The other Justices concurred. | [
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] |
McGrath, J.
On the 4th day of January, 1886, defendants leased from complainant the Madison House, at Detroit, for five years and three months, at an annual rental of $2,400 for the first three years, and $2,700 for the rest of the term, payable in monthly installments in advance. Defendants at the same time purchased from complainant the hotel furniture for $1,650, paying $800 down, and agreeing to pay $100 per month after July 1, 1886, until the whole was paid. The lease provided that defendants would pay all water taxes and assessments; keep the plate glass as well as the hotel effects and furniture insured for complainant's use and benefit; and, to secure the performance of the conditions and agreements of the lease on their part, defendants- should execute a chattel mortgage upon the effects and furniture purchased, and a real-estate mortgage upon certain real estate owned by defendant Mary Ann Phillips, in Jackson. The lease provided that it should not be assigned without complainant's consent. The agreement provided that, when the furniture should be fully. paid for, the real-estate mortgage should be discharged. The lease was executed and acknowledged by complainant and the defendants on the day of its date, and defendants went immediately into possession under it.
The mortgages provided for in the lease were afterwards, on January 20, 1886, executed and delivered. The condition of the real-estate mortgage was the payment of the balance due upon tbe furniture, and tbat of tbe chattel mortgage was the performance of the conditions of the lease. Defendants occupied the premises until November 15, 1887, at which time they were in arrears for rent, and had made no further payments upon the furniture. On that date defendants, by a written instrument, assigned to Murray Dalziel the lease aforesaid, and defendants' interest in the hotel furniture, subject to all the terms and conditions of the said lease, and subject to all liens and incumbrances existing thereon. Dalziel agreed to pay to defendants $1,000, of which $500 was to be paid down, and $500 in two years, and also assumed and agreed to pay—
“All such rent upon said premises as may be now in arrears, and all liabilities against the said f Madison House,' so called, created and existing on hotel account, and accruing within the period of one year last past; and the said second party hereto does hereby further assume and agree to carry out and perform all the conditions of said lease entered into on said 4th day of January, 1886, between said second [first] and third parties hereto, and to pay the rent as therein provided, subject, however, to such modifications as may be made in respect thereto by said second and third parties, and all liabilities existing on account of the sale of the furniture as in said lease provided, in accordance with the terms and conditions of said lease, and in all respects relieve the said Richard G. Phillips and Mary Ann Phillips from their obligations in respect thereto.''
The said assignment was executed by defendants, Dalziel, and complainant, and contained the following clause:
“And the said Henry Wineman, party of the third part hereto, does hereby assent to the assignment and transfer of said lease by said Phillips and wife to him (said Dalziel), as above provided.''
On the same date complainant entered into a written agreement with Dalziel, reducing the rent to $150 per month. Dalziel occupied till July 1, 1888, at which time he left the city and went to Jackson. It is now claimed that he, at that time, surrendered the house to complainant, and that complainant leased to one Walsh; but the answer sets up that Dalziel, at that time, made some kind of a transfer of the said hotel property, including the said furniture and fixtures, to one Walsh, who took possession and occupied the same for one month and more.
On or about the 1st of August, 1888, Dalziel came back to Detroit, and again took charge of the house, at a reduced rent of $30 per week. Dalziel remained until the last of December, 1888, and then surrendered possession to complainant, who foreclosed the chattel mortgage, and at the foreclosure sale bid in the hotel effects and furniture for $1,000, credited that amount upon arrearages for rent, and filed his bill to foreclose the mortgage upon the Jack-, son property for the amount unpaid upon the furniture.
The defendants insist:
1. That, by agreement between the parties, they were to be released from liability, and Dalziel was to be substituted, at the time of the assignment to Dalziel.
2. That when Dalziel, August 1, 1888, took possession, it was expressly agreed that the then existing indebtedness should be canceled, and the defendants released from liability, and that at that time Dalziel made a new contract for the purchase of the furniture, at and for the price of $1,000.
The answer does not set up any agreement to release defendants, entered into at the time of the transfer to Dalziel, but sets up that, on July 1, Dalziel made a transfer of the hotel property to Walsh; that Walsh took possession and paid the July rent; that afterwards complainant and Dalziel arranged that the old lease should be canceled, and the hotel property should be surrendered to and become the property of complainant; that, in consideration thereof, complainant should cancel the old indebtedness; that complainant should oust Walsh, and complainant should make a new lease to Dalziel; that said arrangement was carried out; that Dalziel continued in possession under said lease, as tenant of both hotel and furniture, until December following, when he surrendered the property to complainant, who has since sold it, and leased the premises as his own; that in making said settlement and arrangement of August 1, 1888, defendant Mary Ann Phillips—
“Assumed, in the absence of her husband, to act and agree for them both, and that what she did in the making of said settlement was assented to by her said husband only with and upon the express understanding that the said settlement included the cancellation of the said indebtedness of $1,350 and interest, as well as of the demands growing out of the said lease, and not otherwise.”
The first claim is entirely inconsistent with this answer. Dalziel was the son-in-law of defendants, and, although not his answer, it was made after full consultation with him. Mrs. Phillips testified that she was present when the arrangement of August 1, 1888, was entered into between Wineman and Dalziel, and with reference to it she says:
“We were talking about the AValshes, and Mr. Wineman said that the Walshes would never suit his house; he didn’t like their character. And I told him, no, I didn’t think they would suit him, myself; and he told Mr. Dalziel he would very much like him to take the house back again. Dalziel said he would, provided that I would turn over all the furniture to Wineman, and provided he would release the Phillips’ of all the indebtedness and incumbrance; then, if he would do that, he would give Wineman $1,000, and $25 a week rent. Mr. Wineman said he could not take the $25 a week rent, but he would $30, and Mr. Dalziel said that he did not believe he could give him $30, but it appears they consented to it afterwards.”
Dalziel says:
“Mrs. Phillips said she wanted that part distinctly understood, that she, the Phillips/ were released» of all obligations; that was the point that was thoroughly understood."
If on November 15, 1887, defendants were to be released, why any further agreement on August 1, 1888? Complainant denies any agreement to release defendants at any time, and all of the testimony of defendants and Dalziel, respecting any agreement to release, relates to conversations prior to the execution of the tripartite agreement, dated November 15, 1887. Two papers were executed at that time, — the tripartite agreement or assignment to Dalziel, and the agreement between complainant and Dalziel, respecting the reduction of the rent. Neither of these papers, — and one, of them contained the agreement that, as between defendants and Dalziel, the latter should pay these arrearages, — refers to any release of the defendants. It must be held that whatever agreements were made by these parties were merged, and are set forth in this tripartite agreement.
Respecting the alleged new agreement of August 1, the $1,000 which Dalziel and Mrs. Phillips claim was to be paid to Wineman is not mentioned in the answer. It is claimed that, by this agreement, the original agreement or lease, the chattel mortgage, the real-estate mortgage, the tripartite agreement, and the subsequent agreement with Dalziel were all canceled and wiped out, and the defendants were to be released from a valid claim against them for $2,000; yet there is not a single stroke of a pen to indicate such an agreement or such a purpose. Dalziel, according to his story, was to pay $1,000 to Wineman. He does not pretend to say when it was, to be paid. If no time was fixed, it was to be a cash payment; yet it was not paid, and Dalziel occupied the hotel for five months thereafter, and he does not pretend to say that the matter of its payment or of its non-payment was ever once alluded "to. Can it be urged that Wineman released a secured claim of over $2,000, sold, turned oyer, and delivered to Dalziel this entire furniture, for Dalziel’s unsecured promise to pay $1,000, without note or memorandum, and that for five months the question of the payment was never ■alluded to? Wineman does not appear to have done business in that way. The record" shows that he was methodical, and, when he made an agreement, he usually put that agreement into writing.
It is claimed, however, that after August 1, 1888, some weekly receipts given by Wineman read, “ In full for rent to date," and one of the receipts was produced. Wine-man was a man then 70 years old. This receipt was drawn ■by Dalziel.- Wineman’s explanation is entirely satisfactory. Dalziel had, on a few occasions, handed over the counter the week’s rent, with a receipt already prepared, and this occurred three or four times. Wineman did not read the first two or three of these receipts, but, on glancing over the last before signing, he noticed the language, ££In full •for rent to date." He immediately remonstrated, and asked to see the other receipts, which Dalziel laid out on the counter or table. Wineman picked out three that had been drawn by Dalziel, insisting that Dalziel knew that was not right, and offering other receipts for them. Dalziel took one of the three, saying that he wanted to retain one of them for a copy. Wineman took the other two without objection or remonstrance from Dalziel. When .asked if he did not say that he wanted to keep one for a copy, Dalziel says: ££I don’t know that I used those •exact words. I know I told him that I intended to keep that one." Thus we find Wineman at this early day •(September, 1888) insisting that there were arrearages, whereas, if Dalziel’s claim is correct, there were no arrearages, yet he does not remonstrate with complainant. It •was not claimed that the receipts which Wineman had prepared were so written, or that he had read and understood those which Dalziel had prepared. Wineman's conduct is everywhere consistent with his theory. Dalziel abandoned the premises December 31, 1888, and on January 4, 1889, notices were posted of the foreclosure sale of the furniture under the chattel mortgage. It was bid in by complainant, and sold again for the same amount.
The bill herein sets forth that, prior to the giving of 'the mortgage to complainant, Mary Ann Phillips had given a mortgage upon this Jackson property to another party; that in September, 1888, intending to cut off complainant's rights, she procured the said mortgage to be foreclosed, and the property sold, under the statute; that on the day of the sale she gave to her son, George L. Phillips, the amount due on said mortgage, and instructed him to bid in the property in his own name, but in her interest, which he did; that afterwards, in April, 1889, said George L. Phillips conveyed said property to his wife, Mary Phillips, for a nominal consideration; that said Mary Phillips was not a Iona fide purchaser of said property. The bill makes George L. Phillips and Mary Phillips parties defendant, and prays, that the said property may be-decreed to be that of Mary Ann Phillips, and subjected to sale as such. The answer admits the allegations of the bill in that regard, except that it is alleged—
“That the sole and only reason why she expected to-better her title to her lands by means of a foreclosure sale-had reference to claims under tax titles which she supposed were made against her, and not in any way for the-purpose or with a view to the defeating of the rights of the said complainant under his mortgage; and she further says that she took such action as is mentioned in the said bill without legal advice, and with no other purpose than to have the said lands conveyed to herself by the said George L. Phillips, after the time for the redemption thereof should have expired.''
This explanation is an unsatisfactory one. This proceed ing is inconsistent with, tbe theory that on August 1, preceding, this property had been released from complainant’s claim against it. ■ The proofs, therefore, fail to show a release or discharge of the mortgage in question.
It is insisted, however, that the mortgage is invalid, for the reason that the original agreement contemplated a partnership, which could not lawfully exist; that the property purchased for partnership uses belonged to the husband. The agreement entered- into between complainant and defendants was not a partnership agreement. It was for a lease of certain premises, and the purchase of certain personal property. The consideration that passed was certain personal property, and a lease of certain real property. On the execution of the papers, and delivery of possession, defendants became joint owners of the personal property, and joint owners of the leasehold. The lease and purchase did not necessarily involve a partnership between defendants. A consideration then present and existing passed to her as virtually as though a deed of the premises, instead of a lesser estate, had been executed and delivered. This mortgage was given to secure the unpaid purchase money for property, the title to which vested in herself and husband jointly. A married woman may become a joint debtor with her husband upon a proper consideration. Post v. Shafer, 63 Mich. 85.
Dalziel is not a necessary or an indispensable party-defendant. An inquiry as to the equity existing between-. Dalziel and defendants was not important.
The assignment of the lease to Dalziel did not operate-to discharge defendants. No new leasing was made; no-understanding that defendants should be released; no acts; done from which an intention to release could be inferred. Stewart v. Sprague, 71 Mich. 50, 57; Bailey v. Wells, 8 Wis. 141.
The decree of the court below is reversed, and a decree entered here for complainant in accordance with the prayer of the bill, with costs of both courts.
Long, Grant, and Montgomery, JJ., concurred. Morse, C. J., did not sit. | [
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] |
McGrath, O. J.
Plaintiff appeals from a judgment ■entered upon the following findings:
“First. That on the 3d day of May, 1888, judgment was rendered in this court in favor of Albert S. White, Fred J. Bussell, and James K. Flood against the above-named defendants for the sum of five' hundred and ten and 59-100 dollars, upon a note given to plaintiffs in that cause by defendant Moore, and signed by defendant Ooolidge as an accommodation indorser.
“Second. That soon after the rendering of said judgment in this court the defendant Moore requested defendant Ooolidge to sign another note' with him, to enable him to get the money to pay and satisfy the above-named judgment; that defendant Ooolidge refused to sign any note unless defendant Moore obtained some one else to sign with him; that Moore then asked plaintiff, Shufelt, to sign with him and defendant Ooolidge, and that plaintiff did so in some shape, and defendant Moore, with the money, obtained upon said note, paid and satisfied said judgment; that defendant Ooolidge would not have signed said note but for the judgment having been rendered against him and Moore as aforesaid, and that he refused to sign the last-named note' unless some one signed with him; that Moore asked Shufelt to sign, and he did so on such request, and not at request of Ooolidge; and that nothing was said in any way limiting the liability of either party.
“ Third. That one or more notes were signed by the three parties in renewal of the one last given, and finally one was given for the same purpose, in the ivords and figures following:
“‘ |584.00. Hart, Mich., August 4, 1890.
“‘Ninety days after date I promise to pay to the order of ■Oceana County Savings Bank five hundred and eighty-four dollars, at the Oceana County Savings Bank; value received; with interest .at the rate of ten per cent, per annum after maturity.
[Signed.] “‘B. Moore.’
“On the back of which note was the following:
“ ‘For value received, I hereby guarantee payment of the within note, and waive demand and notice of protest on same when due.
[Signed.] “ ‘ S. A. Shueelt.
[Signed.] “‘W. Coolidge.’
“Fourth. That about the time this note fell due the defendant Coolidge paid one-half of it to the bank, which still held and owned it; that the bank then sued Moore, Shufelt, and Coolidge in justice’s court for the balance, and obtained judgment against them for the balance due upon the note; and that plaintiff, Shufelt, finally paid said judgment, which, with costs, amounted to the sum of three hundred and three and 30-100 dollars.
“And as conclusion of law I find that the defendant Coolidge is not liable to the plaintiff, nor are the defendants jointly so liable, and that plaintiff is not entitled to-recover from the defendants as claimed in his declaration, and that judgment should be rendered in their favor and against the plaintiff for costs to be taxed, and it is accordingly so ordered.”
Plaintiff’s contention is that, inasmuch as judgment was. rendered against Moore and Coolidge in the suit of White and others against them, and the proceeds of the first of the series of notes upon which plaintiff became surety were used to pay that judgment, Coolidge must be treated as a. principal, and not as a cosurety. While it may be true that, as between the plaintiffs in .that suit and Coolidge, the-relation of suretyship ceased when judgment was entered, and his liability to plaintiffs became that of a principal judgment debtor, the same was not true as between Moore, the principal, and Coolidge, the accommodation indorser. Their relations were undisturbed. As between them, the judgment was Moore’s debt. The liability of Coolidge had become fixed, but the same was true upon protest for nonpayment of the note upon which judgment was had. The-benefit received by Coolidge was no more substantial than if no judgment had been taken, and the note had been protested for non-payment. Coolidge cannot, then, be said to be a principal debtor on his own account.
The case of Hartwell v. Smith, 15 Ohio St. 200, relied upon by plaintiff* is clearly distinguishable. There A. sued B.* and caused an attachment to issue. B. was in partnership with Smith. Before levy, B., with S. as surety* executed a bond to A.* conditioned that B. should perform the judgment of the court. Judgment was rendered against B., who* desiring to appeal* executed a bond upon appeal, with S. as surety. The clerk refused to accept the bond, and B.* with consent and knowledge* procured Hartwell to sign the bond with S. The judgment was affirmed on appeal. B. died, and A. brought suit upon the appeal-bond against S. and H. S. paid the judgment* and brought suit against H. for contribution. H. insisted in defense that, as between the two bonds* the sureties in the latter had the right* in case payment was enforced, to assert, upon the principle of subrogation* all the rights of the creditor against the surety in the first bond; and* as Smith himself was such sole surety* and therefore ultimately liable to indemnify Hartwell* equity would not require Hartwell to make contribution. The court, referring to the appeal-bond* say:
“This undertaking the clerk declined to accept without further security. The debtor thereupon proposed to procure an additional surety* and to this Smith readily and unconditionally assented; not for the purpose of dividing his responsibility* but because the desired stay of execution could not otherwise be obtained. Hartwell* who had no interest in the matter* and was hitherto a stranger to the whole transaction* was accordingly procured as additional security. Hnder this state of facts* I think it might properly be said that Hartwell became a surety at the request of Smith as well as of the debtor, and that* in respect to him* they were both principals* and he surety. Hunt v. Chambliss, 7 Smedes & M. 532; Cowan v. Duncan, Meigs, 470.
“But it is enough to say that the supersedeas bond was executed with the express consent of the prior surety, unmistakably evidence by his being a party to it* and that he cannot* therefore* claim for it the effect of modifying his liability, which had been previously fixed. We think it clear that, had the debt been collected by the creditor from Hartwell, he should be subrogated to the creditor’s rights under the attachment bond, and that Smith cannot, therefore, call upon him for contribution.”
In the present case the assent of Coolidge was for the express purpose of dividing his responsibility. He refused to become a surety unless Moore procured another surety with whom the responsibility would be divided. He was entitled to insist that the debt should be paid by Moore, ■otherwise that his responsibility should be divided. The old judgment was in no sense collateral to the new undertaking. That, so far as the plaintiffs therein were concerned, was discharged, and the new note ran to another. There remained no fixed securities on the faith of which Shufelt can be presumed to have incurred the obligation. There is no room for the application of the principle of subrogation. Coolidge did not consent that his liability upon the judgment should stand, nor did he contemplate that he should be the sole surety upon the note in question. Shufelt did not become surety because the creditor refused to accept qf Coolidge, but because Coolidge refused to take the entire responsibility. He did not become surety for Moore and Coolidge, but Coolidge and Shufelt became cosureties for Moore. In fact, Shufelt first signed the obligation of suretyship, which was individual in character.
The old judgment must be regarded as Moore’s debt, so far as the parties to this case are concerned, and the relation of Shufelt and Coolidge to the note in question as that of cosureties. They jointly guaranteed the payment •of Moore’s undertaking, the proceeds of which were used to pay Moore’s debt, and Coolidge cannot be regarded as a principal debtor on his own account.
The judgment must therefore be affirmed.
Long, Grant, and Durand, JJ., concurred. Montgomery, J., did not sit. | [
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Grant, J.
This suit was commenced by attachment under Act No. 149, Laws of 1889. This act authorizes the commencement of suit by attachment before the debt is due. The act requires the affidavit to “show reasons for the immediate issuance of the writ to the satisfaction of the circuit judge." The affidavit was made by the attorney for the plaintiffs, and the only facts stated therein tending to show an exigency for the issuance of the writ are .as follows:'
“That recently, and upon October 27, 1890, two certain chattel mortgages were executed and filed, covering the property of Peter Johnson and Sarah J. Healy, copartners, as aforesaid; that the assignee of the mortgages has taken possession of the property therein described, and is now selling the same at retail, and at a rapid rate; * * * that there has been placed on file in the office of the recorder for the city of Ironwood, Mich., a bill of sale from Peter Johnson upon all his tangible personal property; * * * and that the firm of Peter Johnson & Co. is wholly insolvent."
All other allegations in the affidavit are upon information and belief. The property seized was in the possession of a third party, who obtained its release from the attachment by giving a bond conditioned for the payment of any judgment that might be recovered against the defendants, Johnson and Healy. Neither of the defendants was a party to the bond.
The defendant Healy appeared specially, and entered a motion to quash the affidavit and writ, for the reason, among others, that the affidavit made no case to justify the issuance of the writ. This motion was overruled by the court. The defendants took no further steps, and judgment was entered against them upon default. Defendant Healy brings error.
It is not claimed that the chattel mortgages and bill of sale were not given to secure iona fide debts. The record does not contain either the mortgages or bill of sale. In the absence of any statement of the provisions of the mortgages, it must be presumed that the mortgagees took possession and were proceeding to sell in accordance with their terms. The law authorizes the debtor to give either or both to secure his creditors. The fact that the mortgagees took possession within a few days after the execution of the mortgages is not, of itself, a badge of fraud. Diligent and honest creditors may take this course, to secure their debts. When the facts alleged in the affidavit are consistent with an honest purpose on the part of creditors to secure their just claims, no case is made to authorize the seizure of a debtor’s property by attachment.
The motion to quash should have been granted. The bond given by the party from whose joossession the property was taken by the sheriff, and who was a stranger to the suit, in no manner affected the rights of the defendants! and'did not operate as a waiver of their right to move to quash.
After judgment, the writ of error was the proper remedy for a review of the proceedings in this Court. Jewell v. Lamoreaux, 30 Mich. 155; Stall v. Diamond, 37 Id. 429; Emerson, Talcott & Co. v. Maclmie Co., 51 Id. 5; Warren v. Crane, 50 Id. 300. The defendants had done nothing to waive the defect in the affidavit, or to confer jurisdiction on the court.
Judgment must be reversed, and judgment entered in this Court quashing the proceedings.
The other Justices concurred. | [
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Per Curiam.
The relator asks for a writ of mandamus to compel the respondent to vacate an order allowing an amendment to the declaration in a suit instituted by John Bresnahan, as administrator of the estate of Daniel Nugent, against the relator.
The declaration, as originally framed, counted on an alleged fraudulent transfer to the relator of certain personal property by Daniel Nugent, which transfer plaintiff claims he is entitled to attack in the right of creditors. A portion of the property described in the declaration and alleged to have been converted is an item of “ 953 bushels of wheat, $1,040." After one trial of the case, aud. at a time when the statute of limitations would constitute a bar to a new action, the plaintiff was permitted to amend his declaration by striking out this item, and inserting in place thereof, “31 acres of growing-wheat, $800."
It has been repeatedly held that the court has no power to permit an amendment which introduces a new cause of action after the same has become barred by the statute of limitations. Gorman v. Circuit Judge, 27 Mich. 138; Michigan Central R. R. Co. v. Circuit Judge, 35 Id. 227. Upon full consideration, we feel constrained to hold that the amendment allowed in this cause did permit the plaintiff to introduce a new cause of action, and that, therefore, the circuit judge exceeded his authority.
The mandamus will issue as prayed.
See 92 Mich. 76. | [
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Per Curiam.
This is an application for mandamus to compel the respondent to accept from the petitioner his approved bond and $500 for a liquor tax, and to give to him a receipt therefor, to post up in a conspicuous place, as provided by Act No. 313, Laws of 1887, which is an act to provide for the taxation and regulation of the liquor traffic. The respondent refused to accept the approved bond and the $500 tax, or to give him a receipt, for the reason, as he claimed, that Act No. 207, Laws of 1889, commonly known as the “ Local Option Law,” was then in force in the county of Gratiot.
The relator claims that certain preliminary questions, which were passed upon and determined by the board of supervisors, as shown by the alleged record of their proceedings, were, not property determined, and that certain facts were not proven as required by law; as, for instance* that it did not appear that the necessary number of electors had petitioned for the special election on local option. This question cannot be considered here, as the declaration of the board of supervisors on that subject is made final by the provisions of the act itself; and in Friesner v. Common Council, 91 Mich. 504, it was so held, and that it is not competent afterwards to dispute it.
The only question which can be considered here is whether there is any record at all, such as the law requires to be made of the proceedings under this act, in order to effectuate its provisions. If there is such a record, .then the statements contained in it must be held in this proceeding to be conclusive, and they cannot be disputed. Auditor General v. Supervisors, 89 Mich. 552, and cases cited.
Section 6 of the local option act provides that, when the board of supervisors shall determine that a sufficient number of electors have petitioned for an election, the board shall so declare^ and shall then make an order calling the election and fixing the date when it shall be held; and this section then provides that—
“Such order shall be entered in full upon the journal of the proceedings of the board for that d^y, and the same shall be signed by the acting chairman and clerk of _ the board before final adjournment.”
Subsequent sections of the same act seem to be drawn with the same care, and specifically mention that the different proceedings under it must be entered in full upon the journal, and signed by the acting chairman and the clerk of the board; and also that the inspectors of the election, “without recess or adjournment,” shall draw up a statement of the result of the vote, and certify to its correctness, and subscribe their names thereto. These different sections of the law all indicate clearly that the Legislature intended to fix, and did fix, the time when the different proceedings to be taken under the act should be signed, and how and by whom they were to be signed. It is clear, therefore, that these provisions are mandatory, and that they were enacted for the protection of both public interests and private rights.
As was said in Pearsall v. Supervisors, 71 Mich. 438, 444:
“The statute requires a record duly authenticated, not only that the result may be evidenced in an enduring form, but that it may be seen and known whether the board has acted within the limits of the power conferred or not.”
The same rule is laid down in Weston v. Monroe, 84 Mich. 341, and no contrary doctrine .has ever been recognized in this State.
In the case at bar it is conceded that the statute referred to has not been complied with. The clerk, in his return, says that the proceedings of the board in this matter, and which were had on December 11 and 12, 1891, and on February 1, 1892, were not even entered upon the journal until “perhaps in two or three weeks after final adjournment,” and that the chairman of the board of supervisors did not sign or pretend to sign the record until May 6, 1892, which was after the time when the petitioner made his demand on the respondent in this case, and after the time when the respondent claimed that the local option law was in force in Gratiot county under and by virtue of these unsigned and unverified proceedings, and at which time, also, as apjDears from the record, the chairman was out of office, and had no authority under any of the provisions of this act to perform a duty which the law required him to perform at the very time the proceedings were had, and before the final adjournment of the board. Were the statute in relation to the signing directory merely, the neglect to do so would not vitiate the proceedings; but where it is mandatory, as in this case, it must be complied with, or the proceedings cannot be upheld. The facts, as stated, being not only undisputed, but admitted, there is no controverted question of fact to consider, and there is only presented to this Court the one question of law, which is whether these unsigned and unauthenticated proceedings of the board of supervisors can be held to be a record, such as the law requires to be made in order to give effect to its provisions, and put the local option law In operation within the limits of the county of Gratiot. We must answer this question in the negative. To hold otherwise would be to nullify the plainly expressed provisions of the statute referred to.
It follows that a writ of mandamus must be granted. | [
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] |
Grant, J.
The respondents in this case are co-respondents with those in City of Detroit v. Robinson, ante, 426. The other questions having been disposed of in that case, the only questions now to be considered arise upon the distribution of the award.
One Catherine Schilling died seised of real estate through which the proposed street will run. She left five children. She left a will, which reads as follows:
“The last will and testament of Catherine Schilling, of the city of Detroit, county of Wayne, and State of Michigan:
“I, Catherine Schilling, of the city of Detroit, county of Wayne, and State of Michigan, being of the age of forty-four (44) years, and being of sound mind and memory, do make, publish, and declare this to be my last will and testament, in manner following, that is to say:
“First. After the payment of my legal debts, the debts of my funeral, and other expenses, I give and bequeath and devise my estate as follows: To my four children, Heinrich Martin Schilling, George Ludwig Schilling, Herman Martin Schilling, and Maria Wilhemina Schilling, each one-fifth part, and to the child or children of my daughter Caroline Friederika, formerly Schilling, and at present the wife of Thomas Moore, of Detroit, Michigan, one-fifth part, of all my real and personal estate, goods, and chattels, moneys on hand, in bank or otherwise, bills receivable, and all other articles of every name and nature.
“Second. Provided, always, that none of my said real estate shall be sold or divided between my said heirs before my youngest child is at the age of twenty-one (21) years.
“Third. And it is hereby expressly provided that in case my daughter Caroline Friederika, wife of Thomas Moore, should die without leaving any child or children, then their fifth part shall be given to my first four mentioned children, share and share alike.
“Lastly. I nominate and appoint Henry Schindehutte, of Bay City, Michigan, sole executor of this, my last will and testament, and I do hereby revoke all former wills made by me.
“In witness whereof I have hereunto set my hand and seal this fourth day of June, A. D. 1883.
“Catherine Schilling. [Seal.]
“The foregoing instrument, consisting of one sheet, was at the date hereof signed, sealed, and published, and declared by Catherine Schilling as and for her last will and testament, in presence of us, and in her presence, and in the presence of each other, have subscribed our names as witnesses thereto.
“Richard F. Duvernois, of Detroit, Mich.
“James Wallace, of Detroit, Mich.”
All of the children of the testatrix survived her. Her daughter Caroline Moore was dead at the time the petition in this case was filed. The children of Catherine Schilling, viz., Heinrich, George, Herman, and Maria, Thomas Moore, and Hellener Delia Moore, the infant child of Thomas and Caroline Moore, were made parties, as the persons interested in the property. George, Herman, and Maria were minors. One Henry Schindehutte, who was their general guardian, was appointed guardian ad litem, and one John B. Teagan was appointed guardian ad litem of Hellener. Hnder the direction of the court, the jury awarded four-fifths of the award to the four children of Catherine Schilling, and óne-fifth to Thomas Moore. Subsequently the court amended the award so as to divide this one-fifth between Thomas Moore and his daughter, Hellener, as the owners of one-fifth of the land.
Caroline Moore had two children, the elder of whom was dead when this petition was filed. The record does not disclose when either of these parties died, but the order of their deaths was as follows: First Catherine Schilling, the testatrix; then Caroline’s first child; then Caroline Moore. We may infer that Catherine Schilling has been dead' for some years. Mr. Schindehutte, as executor of the estate, testified that as such executor he had had charge of this property about 12 years. He is, of course, mistaken as to the time, for the will was not executed until June, 1883. But it is perhaps from this a fair inference that she died shortly after making the will.
The attorneys for the estate of Catherine Schilling insist:
1. That the court was without jurisdiction to distribute the award, and that the right of distribution belonged to the probate court.
2. That the property must remain intact and. undivided until the majority of the youngest child, and that the award must be considered as real estate, under the provisions of the will, and take the same course.
3. That Thomas Moore has no interest in the estate.
While it is true that the will does not, in express terms, make the executor a trustee to retain possession of the property, and preserve it intact until the majority of the youngest child, and while it is also true that an administrator or executor is not, under our statute, entitled to the possession of the real estate, unless such possession is rendered necessary for the payment of debts, legacies, or expenses of administration, yet it appears in this case that the executor is in possession, and that he has for several years had the entire control of the property without objection. Presumably the executor is rightfully in possession, since he is acting under the order and direction of the probate court. For the purposes of this case, therefore, it must be presumed that necessity exists for his possession. It appears that he rents the property, pays the taxes, and makes the needful repairs, and that he has done so for several years.
A condemnation suit is not the proper proceeding in which to determine the important questions involved in the construction of this will. The award should be turned over to the executor, and the parties can then proceed in the probate court to determine their rights. We therefore express no opinion upon the other questions raised.
The condemnation proceedings were regular, and the case will be remanded, with instruction to the court beloiv to direct the payment of the award to the executor. The appellants will recover the costs of this Court
The other Justices concurred. | [
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Long, J.
This action of ejectment was tried in the-circuit court for Clinton county before the court without a jury. Findings of fact and law were filed on February 13, 1892, and on the 16th of that month plaintiffs counsel took exceptions to the conclusions of law, but none to the findings of fact. We cannot, therefore, review the facts found, or determine whether these findings are supported by the evidence. Peabody v. McAvoy, 23 Mich. 526; Haines v. Saviers, 93 Id. 440, and the rule and cases there cited. See, also, Child v. City of Jackson, Id. 503.
By the facts found it appears that on February 2, 1885, Mary Ann Barber was the owner of the premises-described in the declaration. On that day she made, executed, and delivered to the plaintiff a mortgage on the premises for $200, due two years after date, with 8 per cent, interest.. This mortgage was recorded in the office of the register of deeds of Clinton county. No payments were made upon it, and the plaintiff foréclosed it by adver tisement, and bid in tbe premises, April 28, 1890, for $310.60, being the amount due on tbe mortgage, witb interest, together with tbe costs of foreclosure. Tbe sheriff, who made tbe sale, prepared tbe deed, and, without looking at tbe mortgage, asked the attorney for tbe mortgagee in tbe foreclosure proceeding (who is tbe plaintiff’s attorney here) what rate of interest tbe mortgage bore, and was informed by him that it was 7 per cent.; and, acting upon that information, be inserted in bis deed: “Said mortgage is drawing interest at tbe rate of 7 per cent, per annum.” This deed was filed in tbe office of tbe register of deeds of Clinton county, April 29, 1890.'
After this mortgage was given, and on September 8, 1886, Mary Ann Barber, who still owned tbe premises, in consideration of a deed for certain other premises, executed a warranty deed of tbe property involved in this suit, subject to said mortgage, and placed .the deed in tbe bands of her husband, to be by him delivered to tbe grantee therein named, one Frederick Smitherman, when Smitherman should thereafter, and within three weeks from that date, obtain from bis wife a quitclaim deed of tbe premises deeded to Mrs. Barber, and deliver tbe same to Mrs. Barber, Mrs. Smitherman not having joined with her husband in tbe former deed; or, if be should fail in procuring bis wife’s deed to tbe property within tbe time mentioned, then be was to pay Mrs. Barber the sum of $50, as tbe costs of foreclosing a mortgage on tbe premises deeded, so as to cut off Mrs. Smitherman’s interest. Smitherman failed to procure this deed or to pay tbe $50, and the deed to him was in consequence thereof never delivered to him. Smitherman died, and thereafter Mrs. Barber made, executed, and delivered to Nicholas Kennedy, one of tbe defendants herein, a quitclaim deed of tbe premises for tbe consideration of $50, paid her at that time. Ida Kennedy is tbe wife of Nicholas Kennedy. This last deed was recorded March 4, 1891. At this time one' Jerry Wilson was in possession of the premises, but how he became so possessed is not shown. The defendants procured him to remove, and they went into possession under their deed.
On the same day, and after the deed was given to him, Nicholas Kennedy went to the office of the register of deeds to make redemption from the mortgage. The register of deeds examined the sheriff’s deed, and finding written therein the words, "Said mortgage is drawing interest at the rate of 7 per cent, per annum,” received from Mr. Kennedy $328.95, that being the amount bid at such mortgage sale, and interest thereon at the rate of 7 percent. from the date of such sale to March 4, 1891, and destroyed the original sheriff’s deed, at the same time-writing across the face of the record thereof the word, " Redeemed,” and also the words, " This deed redeemed upon the payment to me of $328.95, the full amount of principal and interest due to date, and deed by me destroyed, March 4, 1891,” and signed it. The court found that Kennedy, in making this redemption, relied upon the statement in the sheriff’s deed that the mortgage drew interest at the rate of 7 per cent., and that there was no proof introduced showing that he had any notice otherwise, except so far as the recorded mortgage was notice. The register of deeds immediately notified the plaintiff by mail that said money had been paid for such redemption, which notice plaintiff received. The plaintiff' went to the register’s office five days before the time for redemption expired, and refused to take the money, on the ground that the interest should have been computed at 8 per cent.; and, though the plaintiff lived near the defendants, he offered no evidence on the trial that he took any steps to inform the defendants of his claim; but, after the time for redemption expired, brought this action of ej ectment.
Upon these facts the court arrived at the following conclusions of law:
1. That the defendants had such an interest in the premises as gave them the right to redeem from such mortgage.
2. That the plaintiff is estopped from claiming a greater rate of interest than '7 per cent, on the amount bid at the foreclosure sale.
3. That the defendants made the redemption according to law, and are entitled to possession of the premises.
Judgment was entered in favor of the defendants. Plaintiff brings error.
The contention of plaintiff's counsel here is:
1. That defendant Kennedy did not acquire such an interest in the premises under the deed from Mrs. Barber as entitled him to redeem, for the reason that the deed from Mrs. Barber to Smitherman had been delivered, and conveyed the title to Smitherman, so that Kennedy took nothing by his quitclaim deed.
2. That defendant Kennedy did not pay an amount sufficient to redeem.
Counsel has brought up all the evidence in the case, and several pages of his brief are devoted to the discussion of the facts; but we can only look at the findings, and determine whether or not the conclusions of law are supported by them. Under the findings, the Smitherman deed was never delivered, and the defendants took title from Mrs. Barber, and under their deed went into possession, and had the same right to redeem that Mrs. Barber would have had. The question, therefore, is whether.Kennedy actually did redeem, or whether the plaintiff is in a position, under the findings of fact, to question the fact of redemption by-Kennedy.
Plaintiff claims title through the sheriff's deed upon this foreclosure. The defendants, in making redemption, paid all that the deed called for, and it appears that the sheriff was directed by the mortgagee's attorney as to the rate of interest. It is true that the statute provides that the person making redemption shall pay interest from the time of sale at the rate per cent, borne by the mortgage, but defendants cannot be defeated in their redemption by the carelessness of the mortgagee. While it is not necessary to express in the sheriff’s deed the rate of interest, yet it was inserted and was misleading. Plaintiff knew the facts several days before the time of redemption expired, but took no steps to apprise the defendants of them. Upon this ground he should be estopped from making the claim.
But it is not necessary for the defendants to rely upon such an estoppel. Plaintiff claims under the sheriff’s deed. It is recited in the deed that the rate of interest is 7 per cent. If this recitation were true, the defendants paid all that they were bound to pay to make the redemption. The plaintiff now seeks to deny this recital in the deed, and at the same time claim under it. He cannot be permitted to do this. If his deed conveys the title to him, he must take it as it is. He cannot adopt those provisions which establish his claim, and repudiate the other provisions. Jacobs v. Miller, 50 Mich. 119; Botsford v. Murphy, 47 Id. 537. Neither can he keep the deed, and act upon it or claim under it, and at the same time -claim that it is not such a deed as should have been given. Waldron v. Railway Co., 55 Mich. 420. The sheriff’s deed put in evidence shows -upon its face that the defendants paid all that they were called upon to pay. in order to make redemption. The court below was correct in its conclusions of law and in entering judgment for defendants.
Judgment affirmed, with costs.
The other Justices concurred. | [
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Long, J.
This action was brought upon two insurance policies. Plaintiff had judgment. Defendant brings error.
The cause was tried before the court without a jury, and the court found substantially that the plaintiff was the owner in fee of a farm situate on sections 8 and 17, in the township of Putnam, in Livingston county, the land being used together as one farm. On the day the policies were issued (June 30, 1890) there was situate upon that portion of the farm on section 8 a dwelling-house occupied by plaintiff as her residence, a barn, storehouse, pigpen, corn house, crib, and wheat house; and upon that portion of the farm on section 17 another barn. These barns were within 10 rods of each other, a highway running between them, and the other barns were all within 12 rods of the barns; both barns and the other buildings being used for general farm purposes. The plaintiff kept upon the farm stock, tools, and implements, and had crops and produce upon it.
On the above day, the defendant issued its two policies, —the one, No. 1,440, covering barn No. 1, on section 17, to the amount of $750, and barn No. 2, on section 8, at $150; and the other policy, No. 1,441, made to the plaintiff and- Mrs. Sophia Webb, and covering dwelling-house No. 1, household furniture, barn No. 1, hay, grain, fodder, and seeds while therein, live stock while therein and against lightning on the farm, store-house, horse barn, hay, grain, and fodder while therein, live stock while therein and against lightning on the farm, farming implements, wagons, carriages, and harness while in barns or barn insured, dwelling-house No. 2, household furniture and clothing while therein, barn No. 2, hay, grain, fodder, and seed while therein, pigpen, corn house, crib, wagon house, wagons, carriages, and farm tools while therein, and the wheat house, in the total sum of $4,700. A writing was indorsed on policy 1,441, that “it is understood that produce is covered in barns, in granary, in crib, and hay stacks within twelve rods of the buildings.” December 17, 1890, further insurance to the sum of $800 was placed in policy No. 1,M0, “on jDroduce while in barn and sheds, the same being the barn south of the road on section 17,. and designated originally in said policy No. 1,440 as ‘barn No. 1 and foundation/”
At the date the policies were issued, G-ov. Felch held a mortgage of $1,300, with accrued interest thereon of $700, on the 20 acres of land on section 17. One Thomas Burkett held a chattel mortgage for $500, given by plaintiff upon 50 acres of beans then growing on the farm, the chattel mortgage being collateral and additional security for the same indebtedness covered by a real-estate mortgage held by Burkett. Permission was given upon the policies for the chattel mortgage of $500, as additional security, to be placed on produce; “loss, if any, on produce payable to Thomas Burkett, mortgagee, as his interest may appear;” and upon policy No. 1,441 was indorsed: “ Loss, if any, on real estate payable to Thomas Burkett, mortgagee, as his interest may appear.” Upon policy No.-1,440 was indorsed: “Loss, if any, on real estate payable to A. Felch, mortgagee, as his interest may appear.” August 15, 1890, the defendant, through its agent, further-indorsed upon the policies: “Further chattel mortgage for $700 permitted, to put in and secure crops, but $350-returned, and not used.”
At the date the policies were issued, John Dyer held a bill of sale given as security upon certain personal property owned by the plaintiff. This was dated June 26, 1890, and was to secure the sum of $2.00. On the day the policies were issued, Mr. Morris, the agent of the defendant company, dictated a new bill of sale to secure the payment of the same indebtedness to Mr. Dyer, to take the place of the one of June 26, 1890. This was deliv ■ered to Mr. Dyer, and the old one taken up. Also, on the date the policies were issued, Enoch Smith held a chattel mortgage given by the plaintiff to him to secure the payment of about $200. Just what personal property it covered is not shoAvn. October 9, 1890, the plaintiff .gave to Smith a new chattel mortgage to take the place of the one last mentioned, and to secure the same indebtedness; thereby mortgaging to him a horse, a piano, and 12 acres of growing Avhcat. The horse and piano were insured by policy No. 1,441; but the wheat was still growing on the farm at the time the fire occurred, and none of the property covered by this mortgage was destroyed by the fire. The bill of sale to Dyer and the mortgage to :Smith, and the renewal of the same, were known to ■defendant's agent, but no permissions Avere indorsed on the policies for the same. No steps were taken by the company to cancel the policies before the fire.
Each policy was preceded by a written application, which was made a part of the policy, and each recited:
“This policy is based upon an application and survey of the property on file, Avhich is hereby referred to as forming a part of this policy.”
The folloAving clauses were also printed in and made a part of each policy:
“ If the property, real or personal, covered by this policy, be or become incumbered by a mortgage, trust deed, judgment, or otherwise, this entire policy shall be void, unless otherwise provided by agreement indorsed hereon or. added hereto.”
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after a loss.”
“This entire policy, unless otherwise provided by.agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership, * * * or if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage.”
“If an application, survey, plan, or description of property be referred to in this policy, it shall be a part of this contract, and a warranty by the insured as to material facts.”
“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist,or be claimed by the insured unless so written or attached.”
In the written application for policy No. 1,440 occurred the question, “Is the property incumbered? ” The written answer was, “Yes.” Then in the application is the following question: “If so, what amount, and the value of the premises?” The written answer is “$1,300, — $1,800.” Each of the written applications contains this clause:
“The applicant hereby declares and warrants that the above answers and statements are true, and that no statement contradictory to the above was made to or by the agent of the company, and he agrees that this declaration shall be the basis and form part of the contract or policy between insured and the company.”
January 17, 1891, a fire occurred without the fault of the plaintiff, which destroyed the barn mentioned in policy No. 1,440 as “Barn No. 1,” and a large amount of insured personal property, consisting of hay, cornstalks, oats cut and stored, harness, farming implements, 671 bushels of beans, straw partly in barn and partly in stack within 12 feet of the barn, beanpods in barn and shed adjoining, and grain bags, making total loss under both policies of $2,343.19, for which plaintiff had judgment. The value of the barn was in excess of the insurance.
The objections to the proceeding relate entirely to the conclusions of law reached by the court below, upon the grounds:
1. That the plaintiff could not bring suit on both policies, joining the same in one action and in her sole name.
2. That policy No. 1,440 was void, because the amount of the Felch mortgage was^ incorrectly stated in the application.
3. That the policies were void because the chattel mortgages were not permitted by writing indorsed upon them.
It appeared in the findings of the court that no part of the property belonging to Sophia Webb was destroyed by fire. The property covered by policy No. 1,441 belonged partly to the plaintiff and partly to Sophia Webb, each owning in severalty their respective shares, although the property thus secured was commingled and used in common by them for farming' purposes. The only question bearing upon title to the personalty in the application for that policy was addressed both to the- plaintiff and' Sophia Webb, as follows: “Are you the absolute owner of the personal property to be insured? Answer. Yes.”' It is evident that, if the property of both of the insured under this policy had been destroyed by fire, a joint action could have been brought by them, and the proceeds of the judgment afterwards apportioned between them according to their respective interests in the property. Castner v. Insurance Co., 46 Mich. 18. In the above casé it was said:
“When the entire property belongs to the persons insured, it can make no necessary difference to the insurer in what way their interests are apportioned. If they deem it material, they should inform the applicant before accepting his money.”
In the present case, much more clear is it that the insurer should not take advantage of this fact, for the reason that Mr. Morris, the agent, was fully informed where the title rested, and had assured the plaintiff that her interests were fully protected under the policies. Neither was the answer to the question in the application as to title of the personal property contrary to the true state of facts. Each owned in severalty, and they were the absolute owners of it.
It is contended:
1. That there was material misstatement as to the -amount of incumbrance on the real property in policy No. 1,440.
2. That the placing of the chattel mortgages on the property, without the written permission of the company indorsed on the policy, worked a forfeiture.
It appears from the findings of the court below that Mr. Morris, the defendant’s agent, was clothed with full power to issue policies. He took the applications, approved them, and, without forwarding them to the company, at once issued the policies, having been furnished with blanks for that purpose. Before the policies were made out, and at and before the applications were made, he knew of the Eelch mortgage and the accumulated interest. In the presence of the insured he filled out the applications, and told them to sign, without reading the applications to them, or advising them of the contents. He knew all the facts in regard to the mortgage incumbrance, and the situation of the personal property with its incumbrances. After the applications were made, he assured the parties that they were fully protected under the policies. He also knew of and permitted the additional -mortgages to Smith and Dyer, and advised Mrs. Beebe in the execution of them. No part of the property covered by the Smith and the Dyer mortgages was destroyed.
It is contended, however, that by the terms of the policies the plaintiff cannot be heard to say that this was done by and with the full knowledge of defendant, as by the terms of the policies no officer, agent, or other representative of the company had power to waive any provisions or conditions of them, except such as by the terms of the policies might be the subject of agreement indorsed on them, etc. The claim is made that this principle was decided in Cleaver v. Insurance Co., 65 Mich. 527. In that case the policy provided that the agent—
“ Has no authority to waive, modify, or strike from the policy any of its printed conditions; * * * nor, in case this policy shall become void by reason of the violation of any of the conditions thereof, has the agent power to revive the same.”
The question involved there was whether the taking of $2,000 additional insurance in another company avoided the policy. Mr. Quinn was the agent of the company, and the plaintiff claimed to have spoken to him about the additional insurance, and after he received his additional policy he claims to have been told by Quinn that it was all right. It was said by this Court that that was not a case where the insured had a right to rely upon the action of the agent, or to presume that his action was known to the company and ratified by it. But in the present case it appears that the agent stood in place of the company, with full power to issue policies without first referring the applications to the company; and the plaintiff relied upon, and had a right to rely upon, the agent, and to presume that the company had knowledge of his acts, and ratified them. If the Cleaver case, supra, is to be construed as laying down such a doctrine as contended for here, it ought at once to be overruled. But we think the case is clearly distinguishable. The present case presents features by which, if that doctrine is applied, the grossest fraud is to be perpetrated upon the plaintiff. Morris, the agent, is an attorney at law, living near the plaintiff. He has been her legal adviser, and knew the situation and surroundings of her property as well as the plaintiff did. He filled out the applications, did not read them to the plaintiff, advised just what property each should cover, knew the amount, of the Felch mortgage and interest accrued, knew the amount of each chattel mortgage, and in fact assisted the plaintiff in procuring the money on each. When all had been completed, he assured the plaintiff that the policies were all right, and that she was fully protected; and yet it is gravely contended here that she is not in a position to-set up these facts, because the policy contains a clause that, no officer, agent, or other representative of the company shall have power to waive any provision of the policy. If no officer, agent, or other representative of the company could waive it, then there could be no waiver. It is like the case of Westchester Fire Ins. Co. v. Earle, 33 Mich. 143. In that case the policy provided that there should be no waiver of any of the printed or written conditions, except in writing on the policy, and the Court said (p. 153):
“ The condition, literally applied, would prevent any unindorsed consent by the company itself, by resolution of its board, or by act of its officers, as effectually as by anyone else. And the case seems to settle down to the simple.question whether a person who has agreed that he will only contract by writing in a certain way precludes himself' from making a parol bargain to change it.”
In the present case it is attempted, as in Westchester Fire Ins. Co. v. Earle, supra, to limit every one connected with the company, either as officer, agent, or representative, to waive by parol the requirements of the policy. The. agent had the right, under the policy, to grant permission to place other chattel mortgages upon the property, but was required to write such permission upon the policy. He granted the permission, took an active part in procuring-the money upon the mortgages, advised in regard to it, and assured the plaintiff that she was protected, though he did not enter in writing upon the policy the permission to-do so. With the power vested in him by the company to issue policies, we think it would be a gross fraud upon the insured to hold that this condition was not waived by the-consent of the company. If the company itself could waive compliance with this condition, then it was waived, as held in the case above cited.
What we have said above applies equally to the contention about the Felch mortgage. It is said that, inasmuch as the application and the policy provided that the statements in the former should be treated as warranties on the part of the insured, therefore the representation in the-application that the incumbrance was $1,300, when in fact it was $2,000, was such a misstatement that the policy was void, and no recovery could be had for that reason. As is seen from the findings of the court below, the agent of the company knew just what the incumbrance was. He filled out the application, had plaintiff sign it without reading it to her, assured her it was all right, and that she was fully protected under it. She was not asked to-state the amount of the incumbrance, and no fraud or deceit was practiced by her. . She did not know of the printed clause in the policy in reference to warranties, and the court found that she was not negligent or careless in failing to read the application, under the circumstances, and that she and Mrs. Webb both understood and believed from the conduct and acts of the defendant’s agent that the application stated the facts. Under these circumstances, the defendant company is not in a position to insist upon the forfeiture of the policy. Instead of a fraud being practiced upon the company, it must be presumed to have the knowledge which its agent possessed; and it would be a gross fraud upon the plaintiff to permit the company to take advantage of such a misstatement in the application, and hold- the policy void by reason of it. The case falls clearly within the principle laid down in Tubbs v. Insurance Co., 84 Mich. 651; Mich. Mutual Life Ins. Co. v. Reed, Id. 531, and cases there cited; Ætna, etc., Ins. Co. v. Olmstead, 21 Id. 252. In the last case it was said by Mr. Justice Cooley:
“ The general rule undoubtedly is that, in the absence of fraud, accident, or mistake, a party must be conclusively presumed to understand the force of his contracts, and to be bound by their terms. But it cannot be tolerated that one party shall draft the contract for the other, and receive the consideration, and then repudiate his obligation on the ground that he had induced the other party to sign an untrue representation, which was, by the very terms of the contract, to render it void.”
We think the court below, under the evidence and facts shown, very properly ruled that the policy was not rendered void by the misstatement of the amount of the Felch mortgage in the application.
Some contention is made that the personal property destroyed was not covered by policy No. 1,441. We think the two policies, taken together, show what the intention of the parties was, and that the property so destroyed was covered by and included in the policy.
Judgment is affirmed, with costs.
McGrath, C. J., Montgomery and Durand, JJ., concurred. Grant, J„ did not sit. | [
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] |
Morse, C. J.
This case involves the constitutionality of Act No. 176, Laws of 1891.
This act authorizes the organization of any township in the Upper Peninsula into a single school-district, upon certain steps being taken by the qualified electors of such township;
First. A petition signed by a majority of snob electors must be filed with the township clerk, at least 15 days before the annual township meeting, petitioning the township board to give notice that at such township meeting the officers for such organized school-district will be chosen, and such other business transacted as shall be necessary thereto.
Second. Upon filing this petition, the township clerk notifies the members of the township board and the school inspectors of the township to attend a special meeting, to be held not more than 5 days thereafter. At this meeting, the names upon the petition are compared with the names upon the -list of registered voters qualified to vote at the preceding election. If it is found that a majority of such qualified electors have signed the petition, the township board is required to give notice that at the then succeeding township meeting officers will be chosen for such organized school-district; and upon filing a certified copy of the petition, and the findings upon it, with the county clerk and the secretary of the board of school inspectors of the county, such township becomes a single school-district, subject to the general laws of the State, so far as the same may be applicable.
Some of the other provisions of the act will be - referred torn the discussion of the objections raised against the act.
The constitutional objections to the act are stated as follows:
1. That the act makes no provision for determining whether the signatures to the petition are genuine.
2. The act permits the trustees to exercise their own judgment as to the length of time which any school within the district may be maintained in the year, longer than three months.
3. That section 13 seeks to transfer the school property of the several districts to the township school-district, and to impose the debts and liabilities of the old districts upon the township district, and that this amounts to a confiscation of the property of the citizen.
4. That the act destroys the essential attributes of the primary school-district, as it existed at the formation of the Constitution.
5. That the act requires a copy of the petition and findings to be filed with the county clerk and secretary of the board of school inspectors, and that there is no such officer as secretary of the board of school inspectors.
We will take tip the objections in their order.
1. The provision for determining whether a majority of the legal voters of the township have signed the petition is sufficient. The township board and the school inspectors are as well qualified to determine this matter as any other tribunal could be. They have before them the petition and the list of registered voters at the last election, and the means are at hand to ascertain whether or not the signatures to the petition are genuine. There is no constitutional objection to such a tribunal, or the making of their determination a final one. Friesner v. Common Council, 91 Mich. 504. And certainly, after the electors at the township meeting have ratified the action of such board by proceeding to elect officers for such school-district, it cannot be said that the majority of such electors have not signified in a proper way their desire to be organized as a township into a single school-district. It must be remembered that the Constitution of 1850 left to the Legislature, as did the preceding Constitution, the establishment of a system of primary schools, restricting the Legislature only by providing that a school shall be kept, without charge for tuition, at least three months in each year, and that all instruction in said schools shall be conducted in the English language. All other matters seem to be within the discretion of the Legislature. Belles v. Burr, 76 Mich. 1.
2. The discretion given to the trustees as to the length of time any sehool may be .maintained in the year, beyond the constitutional requirement of three months, is within the power of the Legislature, and is the same discretion now exercised by trustees of ordinary school-districts. See section 8, Act No. 176, Laws of 1891.
3. Section 13 of the act provides that—
“ All school property, both real and personal, within the limits of a township incorporated as aforesaid, shall, by force of this act, become the property of the public schools of such township, and all debts and liabilities of the primary school districts of said township, as they existed prior to its incorporation under the provisions of this act, shall become the debts and liabilities of said public schools of the township so incorporated.”
While the injustice and inequity of this section may well be admitted, in a case where the inhabitants of an existing district within the township may be well equipped in school buildings and other property, and out of debt, while other districts are in debt and without much property, and are compelled by a majority of the electors of the township, against their will, to be incorporated into a single district with the others, and surrender their property into the common fund, and bear their proportion of the debts of the other districts within the township, yet there is no constitutional objection against it. 1 Dill. Mun. Corp. § 185. The history of our State is full of such legislation in the enlargement of the boundaries of municipalities, and the right so to legislate cannot now be questioned.
4. The next objection is disposed of by the fact already referred to, that our Constitution expressly relegates the primary schools to the discretion of the Legislature.
5. This objection rests upon a technicality, to wit, that there is no such office as secretary of the board of county school inspectors. The Legislature of 1891, by Act No. 147, repealed the law which provided for the office of secretary of the board of inspectors for the county, and provided for a county commissioner of schools, whose duties are, in a clerical way, made substantially identical with those of such secretary. This Act No. 147 seems to have been overlooked by the Legislature when the act in question was passed. It is plain that a certified copy of the petition, and the doings and findings of the township board and school inspectors upon it, filed with the county commissioner of schools, would answer the purpose of the law.
Irregularities and want of jurisdiction are alleged in the formation of the district, whose officers are made defendants in this proceeding. We cannot enter into an examination of this question, as certiorari is not the proper remedy.
“ A certiorari to review proceedings whereby a new school-district has been created out of old districts must be-applied for before the district has been organized and assumed the functions of a corporation. After that time the proper course is to take measures to try the legality of its corporate existence by quo warranto against the alleged corporation or its officers.” School-Dist. v. Inspectors, 27 Mich. 3; Parman v. Inspectors, 49 Id. 63.
In this case the return shows that the district had been organized, officers elected, contracts entered into, and expenses incurred before the writ of certiorari was taken out.
The writ of certiorari is dismissed, with costs to defendants.
The other Justices concurred. | [
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Per CURIAM.
Defendant Aaron Conley appeals as of right his jury trial convictions of first-degree home invasion, felonious assault, and possession of a firearm during commission of a felony (felony-firearm). The trial court sentenced Conley as a third-offense habitual offender to serve prison terms of 16 to 40 years for the first-degree home invasion conviction, four to eight years for the felonious assault conviction, and two years for the felony-firearm conviction. The terms for the home invasion conviction and the felonious assault conviction are to be served concurrently with each other, but consecutively to the term for the felony-firearm conviction. We affirm Conley’s convictions, but remand for resentencing.
I. BASIC FACTS AND PROCEDURAL HISTORY
On the night of October 20, 2003, at about 9:00 p.m., Victor Lyons broke up a fight between Conley and another man. Lyons knew Conley because they lived across the street from one another. After the altercation, Lyons went into his house, where his eight children, his wife Lisa Hallock, his father-in-law Thomas Hect, and his brother-in-law were. He was in the kitchen when he heard a loud bang and a man yelling racial slurs. According to Lyons, Conley kicked in the locked door, entered the doorway without permission, waived a gun, and yelled, “Come on out, nigger, what’s up now.” Lyons approached the front door carrying a baseball bat and saw that Conley had a small handgun. Lyons said he and Conley went outside, and Conley told him to put the bat down, so he did. After he put the bat down, Conley put the gun in his pocket. Lyons said Conley then walked up to him and hit him. Lyons said he fell on the ground and got back up, but Conley had run across the street. Hallock and Hect confirmed Lyons’s testimony.
Conley testified that on the night of October 20, 2003, at approximately 9:00 p.m., he and Lyons smoked crack cocaine. Conley further testified that he and another man had gotten into a fight that lasted about 15 minutes, and that the fight had ended with him and his brother being chased around the corner by Lyons and several other men. Ten minutes after the altercation, according to Conley, he went to Lyons’s house. Conley saw Lyons standing outside the house near the curb and said the two of them were about to fight. According to Conley, Lyons ran into his house, and he thought Lyons was going to get something, so he stood on Lyons’s porch and kicked the door twice. Conley said the door opened and Lyons came running out with a bat. Conley testified that he ran to his brother and grabbed a beer bottle. Conley said he and Lyons swung at each other with their respective weapons, but did not hit each other. Conley said he eventually hit Lyons and left. Conley testified that he never entered the home and never possessed a firearm.
n. JUDICIAL CONDUCT
A. STANDARD OP REVIEW
Conley argues that the trial court lacked impartiality, as indicated by the court’s threat to tape his mouth shut. Therefore, Conley argues, he was denied his due process right to an impartial and fair trial. “In the absence of objection, this Court may review the matter if manifest injustice results from the failure to review.” We review this unpreserved issue for plain error.
B. THE INCIDENT IN QUESTION
The following occurred following jury selection:
The Court: Is there a problem, Mr. Lange?
Mr. Lange (defense counsel): Can I approach?
The Court: No. Just don’t make any noise, sir.
Mr. Matwiejczyk (the prosecutor): Other witnesses present in the court, Victor Lyons.
The Court: Which one is Victor? Would you raise your hand? Victor? Thank you.
Mr. Matwiejczyk: Thomas Hecht and Lisa Hallock.
The Court: Thank you, folks. You can step back outside.
The Court: Now, Mr. Lange, did you wish to identify any witnesses?
Mr. Lange: Potentially, Your Honor, Nicholas Conley.
The Court: And is he here? All right. Would you stand and turn so everyone can see you, sir? Would you turn so everyone can see you? Thank you very much. Please be seated. Mr. Conley?
[Nicholas] Conley: I didn’t know I was supposed to be a witness in court.
The Defendant: I am sorry, sir. None of my witnesses are here, sir.
The Court: If you have a concern, take it up with your attorney.
The Defendant: I tried to take it up with my attorney. Take the jury. How can I go with this trial. I have no witnesses. I’m sorry. I have no witnesses.
The Court: Sir, be quiet or you’ll be going to jail for something else.
The Defendant: That’s not right. I have already been here six months, sir.
The Court: I am going to keep somebody here. Bring Mr. Conley back. Keep your mouth shut. Sit down, sir. Sir, sit down. If this is what you want, I’m going to have the officers put this around your mouth.
The Defendant: I’m sorry, sir.
The Court: Are you going to talk?
The Defendant: No, sir.
The Court: When they come back, are you going to say one word? If you have a concern, take it up with your attorney. This will go around your mouth all the way around several times. You will be able to breathe, but won’t be able to talk. Is that clear?
The Defendant: Yes, sir.
The Court: All right. Leave it right here. Just in case you want to act up. All right. Mr. Lewycky, bring everyone back.
(Jury present in the courtroom.)
The Court: You relatives, folks, friends, whoever you Eire, if you want to talk about it with the officers, go ahead and do it. No skin off my nose, you’re not my friend. I’m not your friend. I won’t shake my head either, sir. It’s appropriate to stand up, Mr. Conley, when the jury comes in. It’s appropriate for everybody to stand up when the jury comes in, including the Judge.
Now, my. question, members of the jury, about everybody when we were interrupted was, .do you know any of the persons who was [sic] identified as potential witnesses, anyone know any of the persons who were identified? All right. Thank you very much.
C. ANALYZING JUDICIAL CONDUCT
The Sixth Amendment of the United States Constitution and article 1, § 20 of the Michigan Constitution guarantee a defendant the right to a fair and impartial trial. In People v Collier, this Court set forth the following analysis for determining whether a trial court’s comments or conduct deprived a defendant of his or her right to a fair and impartial trial:
Michigan case law provides that a trial judge has wide discretion and power in matters of trial conduct. People v Cole, [349 Mich 175, 199; 84 NW2d 711 (1957)]. This power, however, is not unlimited. If the trial court’s conduct pierces the veil of judicial impartiality, a defendant’s conviction must be reversed. People v London, 40 Mich App 124, 129-130; 198 NW2d 723 (1972); People v Wilson, 21 Mich App 36, 37-38; 174 NW2d 914 (1969). The appropriate test to determine whether the trial court’s comments or conduct pierced the veil of judicial impartiality is whether the trial court’s conduct or comments “were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial.” People v Rogers, 60 Mich App 652, 657; 233 NW2d 8 (1975).... See People v Burgess, 153 Mich App 715, 719; 396 NW2d 814 (1986).
In Illinois v Allen, the United States Supreme Court set forth a number of permissible ways courts can handle an obstreperous defendant. In that case, the defendant continually interrupted court proceedings and responded to the trial court’s questions with vulgar language. Although the trial court continually asked the defendant to behave himself and threatened to remove him from the courtroom, the defendant continued to be disruptive. In holding that the trial court was within its authority to remove the defendant from the courtroom, the Court noted, “We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant...: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.” Although the Court noted that the first method could affect the jury’s feelings about a defendant and should be used as a last resort, the Court noted that “[I]n some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as [this defendant] did here.”
Similarly, this Court in People v Kerridge addressed whether a trial court abused its authority in gagging an unruly defendant. Although the Court noted that gagging should only be considered as a last resort, the Court said that such a measure was appropriate when the defendant used vulgar language, repeatedly stated that he was not going to stand trial, attempted to leave the courtroom, and undressed himself in his cell. Clearly, if a defendant is unruly, disruptive, rude, and obstreperous, a trial court is within its discretion to gag a defendant when repeated warnings have been ineffective.
In this case, Conley interrupted the court proceedings several times before the trial court issued its threat that it would have his mouth taped shut. Therefore, the trial court merely issued Conley a warning about what could happen if he chose to continue, or increase the frequency or volatility of his outbursts, as the trial court is advised to do pursuant to Allen and Kerridge. The trial court did not tape Conley’s mouth shut. It appears from the record that his outbursts subsided, and the trial continued in an orderly fashion. Accordingly, we find that the trial court did not deny Conley’s right to a fair trial when it properly warned him of what actions it could take if he continued to disrupt the trial proceedings.
Additionally, we note that some ambiguity exists in the record regarding whether the jury was present when the trial court threatened to tape Conley’s mouth shut. As the prosecution indicated in its brief on appeal, there are a number of references to the jury’s absence that suggest the jury was not present during the remarks now challenged. Although the record clearly indicates the jury was present at the beginning of the exchange and then returned to the courtroom, the record does not indicate when the jury left the courtroom. Because the trial court’s comment regarding taping Conley’s mouth shut and its instruction to bring the jury back appear to be one continuous conversation without any interruptions, it appears that the jury was not present when the trial court made the threat. If the jury was not present during the exchange, Conley’s right to a fair and impartial jury was not violated. Moreover, a defendant is entitled to a fair trial, not a perfect trial. Thus, we conclude that Conley is not entitled to relief on the basis of this issue.
III. DOUBLE JEOPARDY
A. STANDARD OF REVIEW
Conley argues that the felonious assault charge formed the basis for the home invasion conviction and, therefore, the felonious assault conviction should be vacated because it violates double jeopardy. “A double jeopardy challenge presents a question of constitutional law that this Court reviews de novo.”
B. CONSTITUTIONAL PROVISIONS
Both the United States Constitution and the Michigan Constitution prohibit placing a defendant twice in jeopardy for a single offense. These guarantees are substantially identical and should be similarly construed. “The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” With regard to the protection from multiple punishments, a defendant’s protected interest is in “not having more punishment imposed than that intended by the Legislature. The intent of the Legislature, therefore, is determinative.” Put otherwise, there is no multiple punishment double jeopardy violation if there is a clear indication of legislative intent to impose multiple punishments for the same offense.
The first-degree home invasion statute provides that “[imposition of a penalty under this section does not bar imposition of a penalty under any other applicable law.” Therefore, as held by this Court in People v Shipley, the Legislature clearly expressed an intent to allow multiple punishments in this context, that is, a conviction of both first-degree home invasion and another crime for the same incident. Accordingly, we conclude that Conley’s convictions of first-degree home invasion and felonious assault did not violate the constitutional prohibition against double jeopardy.
IV SENTENCING
A. STANDARD OF REVIEW
Conley argues that, contrary to the requirement that the sentencing court articulate its reasons for the sentence, the trial court did not refer to any of the purposes of criminal sentencing or provide any reasons for imposing lengthy sentences. Additionally, Conley argues that the trial court asked him to admit guilt; acknowledged that if Conley admitted guilt, it would conflict with his right to appeal; asked defense counsel about his conversations with Conley; and told Conley that it would be more lenient if Conley admitted guilt. Generally, this Court reviews a trial court’s sentencing decisions for an abuse of discretion. However, in this case, Conley failed to preserve the issue for appeal. “[A] defendant pressing an unpreserved claim of error ‘must show a plain error that affected substantial rights.’ ”
B. ARTICULATED REASONS FOR IMPOSING SENTENCES
A trial court must articulate its reasons for imposing a sentence on the record at the time of sentencing. “The purpose of the articulation requirement is to aid appellate review and avoid injustice on the basis of error at sentencing.” The articulation requirement is satisfied if the trial court expressly relies on the sentencing guidelines in imposing the sentence or if it is clear from the context of the remarks preceding the sentence that the trial court relied on the sentencing guidelines.
Here, the trial court did not expressly rely on the sentencing guidelines when imposing the sentence. However, it is clear from the record that the trial court impliedly relied on the sentencing guidelines. Conley acknowledged that the presentence investigation report (PSI) was thorough and requested that the trial court sentence him at the low end of the sentencing guidelines. The prosecutor proposed a number of corrections to the PSI, and the trial court discussed the scoring guidelines at length with the prosecutor and defense counsel. The prosecutor also asked the trial court to follow the recommendation set forth in the PSI. Immediately preceding the trial court’s sentence, the trial court questioned whether the PSI accurately reflected credit for days served. All these comments preceded the trial court’s sentence. Therefore, we find that the case need not be remanded on this ground for resentencing because the trial court impliedly relied on the sentencing guidelines in imposing the sentence.
C. RETALIATION
During sentencing, the following discussion took place:
The Court: Okay. Well, you know, you realize the gentleman’s convicted by a jury. He may wish to appeal the conviction, but it might go a whole lot easier if we had the weapon that was discussed in this matter. That’s not available? Have you discussed that with your client?
Mr. Lange: It’s still our position that he did not possess—
The Court: Did not have one. Okay. Well, the jury didn’t believe him.
“A court cannot base its sentence even in part on a defendant’s refusal to admit guilt.” Resentencing is warranted if “it is apparent that the court erroneously considered the defendant’s failure to admit guilt, as indicated by action such as asking the defendant to admit his guilt or offering him a lesser sentence if he did.” “[A] defendant’s Fifth Amendment right against self-incrimination ‘is fulfilled only when a criminal defendant is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty. .. for such silence.” ’ ” “This guarantee extends to the sentencing phase of the trial.”
The trial court never expressly asked Conley to admit his guilt. However, the trial court did essentially ask him the location of the gun used in the commission of the offenses for which he was convicted. During the trial, Conley admitted that he kicked down the door to Lyons’s house, that he provoked Lyons to come outside and fight, that he intended to fight Lyons, and that he hit Lyons in the head. However, Conley insisted he never had a gun. Therefore, Conley admitted a majority of the elements of the offenses for which he was charged, except the elements requiring possession of a gun. Had Conley responded to the trial court’s implied inquiry regarding the location of the gun, Conley would have essentially been admitting that he had been untruthful and that he had used a gun during the offenses. With such an admission, Conley would have admitted all the elements of the charged offenses. Therefore, by impliedly asking Conley the location of the gun, the trial court was asking him to admit his guilt.
The trial court did not expressly state that if Conley revealed the location of the gun he would receive a lesser sentence. However, the offer of such a quid pro quo clearly existed. The trial court stated, “[Conley] may wish to appeal the conviction, but it might go a whole lot easier if we had the weapon that was discussed in this matter.” Clearly, the implication of this was that Conley would have been sentenced more leniently if he informed the trial court of the gun’s location and thereby effectively admitted his guilt. Thus, we conclude that the trial court plainly erred by inappropriately considering Conley’s refusal to admit guilt as reflected in this effective offer of a lesser sentence.
D. MCL 769.34(10)
The prosecution points to MCL 769.34(10), which provides in relevant part:
If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant’s sentence.
Read literally in isolation, this language might seem to preclude this Court from granting relief on the basis of the trial court’s error in considering Conley’s refusal to admit guilt because it is undisputed that Conley was sentenced within the sentencing guidelines range and this error does not involve the scoring of the guidelines or the consideration of inaccurate information.
But the erroneous consideration of Conley’s refusal to admit guilt was a constitutional error because it violated his constitutional right against self-incrimination. It is axiomatic that a statutory provision, such as MCL 769.34(10), cannot authorize action in violation of the federal or state constitutions. Accordingly, we conclude that MCL 769.34(10) cannot constitutionally be applied to preclude relief for sentencing errors of constitutional magnitude. We do not hold MCL 769.34(10) to be unconstitutional. Rather, we construe MCL 769.34(10) as simply being inapplicable to claims of constitutional error.
We note that a statute should be construed as constitutional unless no construction avoiding unconstitutionality is possible. Further, although a statutory “phrase or a statement may mean one thing when read in isolation, it may mean something substantially dif ferent when read in context.” Accordingly, statutory language should be read in the context of the entire act. Read in isolation, the language of MCL 769.34(10) might appear to purport to generally preclude consideration of even constitutional sentencing errors if a sentence is within the appropriate sentencing guidelines range. However, this statutory provision is part of a larger statutory section. MCL 769.34 sets forth various statutory rules primarily related to the sentencing guidelines, but includes other statutory restrictions to govern trial courts at sentencing. Accordingly, read in context, MCL 769.34 may reasonably be understood as applying only to claims of nonconstitutional sentencing error. Thus, to avoid a reading of the relevant language of MCL 769.34(10) as being partially unconstitutional, we conclude that it is inapplicable to claims of constitutional sentencing error.
We affirm Conley’s convictions, but remand for re-sentencing because the trial court plainly erred in considering Conley’s refusal to admit guilt at the sentencing hearing. We do not retain jurisdiction.
MCL 750.110a(2).
MCL 750.82.
MCL 750.227b.
MCL 769.11.
There was ambiguity in the record about whether Hallock and Lyons were married or dating.
People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995).
People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).
People v Collier, 168 Mich App 687, 698; 425 NW2d 118 (1988).
Illinois v Allen, 397 US 337, 343-344; 90 S Ct 1057; 25 L Ed 2d 353 (1970).
Id. at 339-341.
Id.
Id. at 343-344.
Id. at 344.
People v Kerridge, 20 Mich App 184, 186-188; 173 NW2d 789 (1969).
Id. at 188.
See People v Dunn, 446 Mich 409, 425; 521 NW2d 255 (1994) (where the record did not show that any member of the jury saw the defendant’s leg irons, the record did not provide a basis for finding that the use of leg irons deprived the defendant of a fair trial).
People v Mosko, 441 Mich 496, 503; 495 NW2d 534 (1992).
People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).
US Const, Am V provides in relevant part, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb----”
Const 1963, art 1, § 15 provides in relevant part, “No person shall be subject for the same offense to be twice put in jeopardy.”
People v Davis, 472 Mich 156, 161-162; 695 NW2d 45 (2005).
Nutt, supra at 574.
People v Robideau, 419 Mich 458, 485; 355 NW2d 592 (1984).
People v Shipley, 256 Mich App 367, 378; 662 NW2d 856 (2003), citing People v Mitchell, 456 Mich 693, 695-696; 575 NW2d 283 (1998).
MCL 750.110a(9).
Shipley, supra at 378.
People v Cain, 238 Mich App 95, 130; 605 NW2d 28 (1999).
People v Sexton, 250 Mich App 211, 228; 646 NW2d 875 (2002), quoting Cannes, supra at 774.
People v Triplett, 432 Mich 568, 573; 442 NW2d 622 (1989).
People v Terry, 224 Mich App 447, 455; 569 NW2d 641 (1997).
People v Lawson, 195 Mich App 76, 77-78; 489 NW2d 147 (1992).
People v Yennior, 399 Mich 892 (1977).
People v Spanke, 254 Mich App 642, 650; 658 NW2d 504 (2003).
Ketchings v Jackson, 365 F3d 509, 512 (CA 6, 2004), quoting Estelle v Smith, 451 US 454, 468; 101 S Ct 1866; 68 L Ed 2d 359 (1981), quoting Malloy v Hogan, 378 US 1, 8; 84 S Ct 1489; 12 L Ed 2d 653 (1964).
Ketchings, supra at 512.
See People v Grable, 57 Mich App 184, 189; 225 NW2d 724 (1974) (resentencing warranted where the plain inference was that if the defendant was honest with himself and admitted the crime, rehabilitation was a possibility).
Spanke, supra at 650.
See, e.g., Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 374; 663 NW2d 436 (2003) (“[N]o act of the Legislature can take away what the Constitution has given.”); Sharp v City of Lansing, 464 Mich 792, 810; 629 NW2d 873 (2001) (“[I]t is axiomatic that the Legislature cannot grant a license to state and local governmental actors to violate the Michigan Constitution. In other words, the Legislature cannot so ‘trump’ the Michigan Constitution.”).
Silver Creek, supra at 379.
G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003).
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PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in favor of defendant. The issue raised by plaintiff in this matter is whether the affirmative duty imposed on a landlord pursuant to MCL 554.139(l)(a), to maintain interior sidewalks in an apartment complex in a condition fit for the use intended, can be circumvented by the open and obvious danger doctrine. We hold that the open and obvious danger doctrine cannot bar a claim against a landlord for violation of the statutory duty to maintain the interior sidewalks in a condition fit for the use intended under MCL 554.139(l)(a). Accordingly, we reverse the decision of the trial court and remand this matter for trial.
This case arose when plaintiff slipped and fell on an icy sidewalk at Oak Hill Apartments, which was owned and maintained by defendant. Plaintiff, a resident of the apartment complex, slipped and fell while he was walking from his apartment to a parking space in the apartment complex on March 12, 2003. Plaintiff testified at his deposition that he had seen ice on some of the complex’s sidewalks when he left for work that morning at 6:15 a.m. and that the ice was “patchy,” so he tried to avoid any icy spots as he walked. He further testified that when he returned home from work at about 6:00 p.m., he noticed that the sidewalks were covered with snow. According to plaintiff, later that evening he walked to a different car than the one he had taken to work earlier in the day, thereby causing him to take a different route than the one he had taken previously. He testified that it was dark outside. Although the apartment complex had some lights, there were no lights along the sidewalk where he fell. He stated that he walked cautiously because of the snow, but did not have any problems slipping or falling until both legs “shot” to his right and he fell onto his left leg and ankle. He looked down and saw that he was sitting on a patch of ice, which he believed was about four to five feet long. Plaintiff claims that as a result of the fall, he suffered injuries and losses, consisting of a severely fractured leg, ongoing pain, disabilities, medical expenses, and lost wages.
Following his slip and fall, plaintiff brought a two-count complaint in the Macomb Circuit Court alleging that defendant violated the statutory duty to maintain common areas in a manner fit for the use intended under MCL 554.139(1)(a). He also alleged that defendant did not take reasonable measures to diminish the danger of injury to plaintiff and similarly situated persons under general negligence law because defendant failed to remove snow and ice on the sidewalk in a timely manner. Plaintiff alleged that because defendant had violated a statutory duty, the open and obvious danger doctrine did not apply. The trial court disagreed and granted defendant’s motion for summary disposition. In granting defendant’s motion for summary disposition, the trial court asserted that the facts of O’Donnell v Garasic, 259 Mich App 569; 676 NW2d 213 (2003), were distinguishable from the facts in the present case and concluded that because the sidewalk in this case was located'outdoors rather than indoors and because there were no alleged violations of building codes, O’Donnell did not apply.
We review de novo a trial court’s decision to grant or deny summary disposition. Mouradian v Goldberg, 256 Mich App 566, 570; 664 NW2d 805 (2003). In addition, issues concerning the interpretation of a statute are questions of law that we review de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiffs injury, and (4) the plaintiff suffered damages. Taylor v Laban, 241 Mich App 449, 452; 616 NW2d 229 (2000). The duty that a landlord owes a plaintiff depends on the plaintiffs status on the land. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). A person invited on the land for the owner’s commercial purposes or pecuniary gain is an invitee, and a tenant is an invitee of the landlord. Id. at 604; Stanley v Town Square Coop, 203 Mich App 143, 149; 512 NW2d 51 (1993). An owner “owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). Absent special aspects, this duty generally does not require the owner to protect an invitee from open and obvious dangers. Id. at 517. However, in O’Donnell, this Court held that the open and obvious danger doctrine is not available to deny liability when the defendant has a statutory duty to maintain the premises in reasonable repair:
The open and obvious danger doctrine is not available to deny liability to an injured invitee or licensee on leased or licensed residential premises when such premises present a material breach of the specific statutory duty imposed on owners of residential properties to maintain their premises in reasonable repair and in accordance with the health and safety laws, as provided in MCL 554.139(l)(a) and (b).
[O’Donnell, supra at 581.]
In light of O’Donnell, if defendant breached its duties under MCL 554.139, defendant would be liable to plaintiff even if the ice on the sidewalk was open and obvious. We therefore begin our analysis by addressing whether MCL 554.139 imposes a duty on defendant to remove ice from the interior sidewalks located within an apartment complex.
MCL 554.139 provides in pertinent part:
(1) In every lease or license of residential premises, the lessor or licensor covenants:
(a) That the premises and all common areas are fit for the use intended by the parties.
(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the applicable health or safety laws has been caused by the tenants [sic] wilful or irresponsible conduct or lack of conduct.
(3) The provisions of this section shall be liberally construed.... [Emphasis added.]
When construing a statute, the primary goal is to give effect to the intent of the Legislature, and the first step is to review the language of the statute. Cain v Waste Mgt, Inc (After Remand), 472 Mich 236, 245; 697 NW2d 130 (2005). Statutory language should be construed reasonably, keeping in mind the purpose of the act. People v Spann, 250 Mich App 527, 530; 655 NW2d 251 (2002), affd 469 Mich 904 (2003). Words shall be construed according to their common meanings unless they are technical terms that have acquired peculiar meanings. MCL 8.3a; Cain, supra at 245. The omission of a provision from one part of a statute when it is included in another part should be construed as intentional. Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993). If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning it plainly expressed, and no further judicial construction is permitted. Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002).
Thus, in ascertaining whether outdoor sidewalks located within an apartment complex constitute “common areas” under MCL 554.139, we analyze the plain language of the statute. Examining the plain language of MCL 554.139, we conclude that the sidewalks located within an apartment complex constitute “common areas.” In so concluding, we are mindful of the statute’s mandate that its provisions be construed liberally, MCL 554.139(3). The basis for our conclusion is as follows. First, sidewalks such as the one in question are located within the parameters of the apartment structure. They are constructed and maintained by the landlord or those in the landlord’s employ. Second, sidewalks leading from apartment buildings to adjoining parking lots are common areas for tenants because all tenants who own and park their vehicles in the spaces allotted to them by their landlord rely on these sidewalks to access their vehicles and apartment buildings. Additionally, any person residing in an apartment complex must utilize the sidewalk provided by the landlord every time the tenant wishes to enter or exit his or her dwelling. Therefore, the sidewalks constitute common areas used by tenants.
It is also important when reaching this decision to note that MCL 554.139 clearly refers to “common areas” as a separate category from “premises.” Furthermore, the trial court’s attempt to distinguish this case from our holding in O’Donnell is also misplaced. Nothing in the language of our O’Donnell opinion or in the language of MCL 554.139 itself supports the conclusion that MCL 554.139 specifically excludes outdoor spaces as common areas. Our holding is therefore based on the clear meaning of the language of MCL 554.139 as well as our prior decision in O’Donnell. Our interpretation of MCL 554.139 is also in keeping with the Legislature’s intent to codify the earlier common law.
We conclude that sidewalks, such as the one used by plaintiff, constitute “common areas” under MCL 554.139(l)(a). Therefore, a landlord has a duty to take reasonable measures to ensure that the sidewalks are fit for their intended use. Because the intended use of a sidewalk is walking on it, a sidewalk covered with ice is not fit for this purpose. Thus, under our holding in O’Donnell, defendant owed plaintiff a duty of reasonable care regardless of the openness or obviousness of the icy sidewalk conditions.
We next address whether plaintiff has created a genuine issue of material fact regarding whether defendant breached its duty under MCL 554.139(l)(a). We begin by noting that the duty of care is generally a question of fact for the jury. Bertrand v Alan Ford, Inc, 449 Mich 606, 611, 617; 537 NW2d 185 (1995). Defendant presented a “Snow Removal Log,” and an employee testified at his deposition that preventive measures were normally used to address ice and snow accumulations, including salting, ongoing spot checks, and monitoring of the weather. Several witnesses stated that these measures were fairly successful, although some of them admitted that they still saw patches of ice on the property. Several residents testified less favorably regarding defendant’s maintenance of the sidewalks. The evidence of preventive measures taken on March 12, 2003, indicated that the walks were salted once, between 8:00 a.m. and 10:00 a.m.
We conclude that plaintiff established a genuine issue of material fact regarding whether defendant breached its duty under MCL 554.139(l)(a) to maintain the sidewalk in a manner that was fit for its intended use. This Court is liberal in finding a genuine issue of material fact. Trentadue v Buckler Automatic Lawn Sprinkler Co, 266 Mich App 297, 306; 701 NW2d 756 (2005). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). From the evidence presented, reasonable minds might differ regarding whether defendant’s preventive measures, which consisted of salting the sidewalks only once in the morning on the day that plaintiff slipped and fell, constituted reasonable care in light of the weather conditions that day. Therefore, summary disposition was not appropriate.
In light of our holding that the open and obvious danger doctrine does not bar plaintiffs claim against defendant for violating its statutory obligation under MCL 554.139(l)(a), we need not address plaintiffs remaining issues on appeal.
Reversed and remanded. We do not retain jurisdiction.
Interior sidewalks are those walkways located out-of-doors and within the parameters of the whole of the apartment complex.
Our conclusion and clarification of this aspect of MCL 554.139 is important in fight of our Supreme Court’s four to three ruling in Mann v Shusteric Enterprises, Inc, 470 Mich 320; 683 NW2d 573 (2004). Mann established that there is no general duty of inviters to take reasonable measures to remove snow and ice for the benefit of invitees unless the accumulation meets the majority’s high standard of creating an unreasonable risk of danger. Id. at 332-333. However, our Legislature’s enactment of MCL 554.139 and our ruling in O’Donnell impose a higher duty on landlords than on other inviters given the enhanced rights afforded tenants as compared to invitees and the tenants’ reliance on interior sidewalks to access their homes and parking structures. | [
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