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Marston, C. J.
Plaintiff brought .ejectment to recover possession of certain real estate, and her right to recover depends upon the construction to be given the second clause of the will of George Young, deceased, through whom she claims title. If under the clause but fifteen acres were devised to her, then she is not entitled to recover, while if thirty acres were devised she would be entitled to a verdict and judgment.
George Young, being the owner of a certain tract of land containing one hundred or one hundred and two and one-half acres of land, made certain specific bequests of portions thereof to certain of his children, and to three other of his children all the rest and residue of his real estate, share and share alike. Besides the above land he owned none other.
In three of the specific bequests he described the land according to the government subdivisions; he also described it by metes and bounds, giving the frontage of each piece on a certain road, and the depth of each parcel, and. the number of acres therein contained. These descriptions did not harmonize. If the number of acres given, and the number of rods frontage and the depth were to govern, and in these respects there was no conflict, then, plaintiff must fail.
That portion of the will under which plaintiff claimed was as follows:
“ 2d. I give and devise to my daughter, Mary Tewksbury, wife of Sidney Tewksbury, for and during her natural life, with the remainder to her heirs forever, in fee-simple, the south three-quarters of the south half of the south half of quarter section lot number seventeen, in the ten thousand acre tract, so-called, situate in the said township of Hamtramclc, containing fifteen acres of land, and being bounded westerly by the road running from the city of Detroit to Pontiac, known as the Pontiac turnpike, being fifteen rods wide on said turnpike, running back eastwardly of the same width one hundred and sixty rods and being the same land on which said Sidney Tewksbury now lives.”
The south three-quarters of the south half of the .south half of quarter section seventeen contained thirty acres, and plaintiff claims this description must govern and control what follows, in accordance with the well-established rule of construction that prominent monuments control.
The general rule undoubtedly is that in the construction of the description of lands contained in a deed, known monuments control courses and distances, and the reason given for this rule is that “ ordinarily, surveys are so loosely made, instruments so liable tobe out of order, and admeasurements, especially in rough or uneven land or forests, so liable to be inaccurate, that the courses and distances given in a deed are regarded as more or less uncertain, and always give place, in questions of doubt or discrepancy, to known monuments and boundaries that are referred to in the deed as indicating and identifying the land.” 3 Washburn on Neal Pr. 631. In some cases where accurate measurements had evidently been made, great confidence was placed therein as a means of ascertaining what was intended to be conveyed. Id.
Another rule given is that “ where more than one description is given, and there is a discrepancy, that description will be adhered to as to which there is the least likelihood that a mistake could be committed, and that be rejected in regard to which mistakes are more apt to be made.” Id.; 1 Green-leaf on Ev. § 301, note, and cases cited. Indeed all rules on the subject are but aids to assist in arriving at the expressed intention of the parties, which, when ascertained, is to be carried out. “ To determine tliis we must look at the whole will and give it effect according to its intent, as far as that can be done lawfully.” Toms v. Williams 41 Mich. 565 ; Jameson et al., appellants etc. 1 Mich. 99; Kinney v. Kinney 34 Mich. 254; Jones v. Jones 25 Mich. 401.
It is very evident that where there is a fixed, permanent monument, as a river, lake or highway, or one established by the parties, that while a mistake may occur as to the course or distance or the quantity of land, there could not well be as to the visible monument, or the lands intended to be conveyed. The land and the fixed, permanent monument are visible to the parties; they can see what their minds have agreed upon, and what is to be described by words in their conveyance. In giving such a description by mentioning the monuments, there is but slight chance for mistake.; and yet, no matter how clearly the monuments may be described, if courses or distances or number of acres are attempted to be given, mistakes may much more readily occur.
So also the descriptions of lands by sections and subdivisions thereof are ordinarily well known, and mistakes could not be likely to occur where parties had adopted and used such a description. Where, however, the partiés attempt, as in this case, to describe a small part of an entire parcel, very great care must be exercised to avoid mistakes. Any attempt to so subdivide a quarter section of land as to correctly describe fifteen acres from off one of the sides thereof -yould require a very deliberate use of terms, and could not be done in haste or without careful computation. In the absence thereof, it may safely be said that a mistake would almost inevitably occur.
It appears that the lands owned by the testator had a frontage of one hundred rods on the Pontiac road, and that the lot was one hundred and sixty rods deep. Each rod fronts on the Pontiac road, and running back the same width the full depth of the farm, would contain one acre. This seems to have been well known to the testator, as clearly appears from the same and other clauses in the will. Thus, the tract he has attempted to describe he says contains fifteen acres of land, being fifteen rods wide on said turnpike, and running back eastwardly of the same width one hundred and sixty rods. In the fifth subdivision of the will he gives to his daughter Sarah Ann twelve and one-half acres, lying next north of a certain other parcel, “ to be twelve and one-half rods wide fronting on the Pontiac turnpike, and running back the depth of the said quarter section seventeen.”
It seems quite clear to my mind that the testator, in giving the number of acres with a frontage and depth corresponding thereto, was much less likely to make a mistake than in his attempt to follow the governmental subdivisions.
Again, if we give each of the specific bequests to the devisees named in accordance with the first description, the entire real estate of the testator will have been disposed of, leaving nothing for Eliza, Adelaide and Ellen; while if we follow the number of. acres, to each of these three will be given a share equal to that of Sarah Ann.
It appears that thus far we have given no effect to that clause which speaks of this as “being the same land on which said Sidney Tewksbury now lives.” Evidence was introduced tending to show that Sidney Tewksbury then lived upon and cultivated the front part of the thirty acres. Admitting this, the clause is equally applicable to a devise of but fifteen acres. A devise of fifteen acres would be the same.land, but not the whole thereof. Besides, it clearly appears that the house in which Tewksbury lived was upon the fifteen acre parcel; and under the evidence it might be a matter of some considerable doubt whether it could fairly be said that Tewksbury was living upon the thirty acre tract. Certainly, a part thereof was not and never had been in his possession, either actual or constructive.
I am of opinion that no error was committed and that the judgment should be affirmed with costs, and the record remanded for farther proceedings under the statute.
Graves and Cooley, JJ. concurred. | [
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Campbell, J.
The bill in this cause was filed to foreclose a mortgage for $1848.54, accompanied by two notes, one for $1600, and the other for $248.54, dated September 5,-1870, made by Timothy Culkins and Anna Culkins, his wife, to John Cameron or bearer, and payable in five years with annual interest, the large note at 7 and the small note at 10 per cent. The papers are claimed to have been executed and delivered to Charles Cameron, the real party in interest, but made in his brother John’s name, as the latter held title to more or less of the property of Charles. It is claimed that $1600 was a balance of principal due on a land contract for the same premises made about two years before, and the smaller note was for accrued interest compounded once at ten per cent, according to the terms of the contract.
Charles Cameron died a few weeks after this mortgage was dated, and the papers were found with other securities among his documents and turned over by his administrator to complainant as guardian of his children. John Cameron had previously assigned them to her in trust for the same purpose,
The defense is that these documents are forged, and that Culkins paid for the land and took a conveyance within a period of a few weeks from the date of his contract. He produces a deed acknowledged about that time, but not recorded till immediately upon Charles Cameron’s death.
The mortgage was left for record January 26, 1871, but was not put in the record books for some years thereafter, Culkins having filed an injunction bill to restrain the record, which was discontinued January 26, 1877. This bill was filed against the administrator of Charles Cameron and complainant and her children, as well as the register.
The circuit court for the county of Calhoun held the mortgage genuine and granted a decree of foreclosure. Culkins and wife are the only parties who appeal.
Only one . question is presented, and that is whether the mortgage is genuine. If it is, the decree is correct. If not, there is no ground of equity.
John Cameron, who is not supposed to have had any personal knowledge of the transaction, died in April, 1871. Charles Cameron died in October, 1870. There is no person living except Culkins and wife who know anything of' the real facts, and this was the case when Culkins filed his bill in 1871.
The testimony consists of the examination of these parties, and various documents and pieces of expert testimony, and the evidence of one of the subscribing witnesses to the mortgage. Beyond this there is not much that throws light on the subject, except some proofs as to business transactions of more or less circumstantial value.
The original mortgage bears the signature of Francis W. Shearman, as witness and acknowledging officer. The other witness was "William Jewell, who was sworn and positively identified his own signature, and remembered the signing by himself, but had no distinct recollection, beyond this except that Shearman called him into his office for the purpose of attesting. Mr. Shearman having been a gentleman very generally known, his signatures were established with equal positiveness by several witnesses, and it is practically conceded they are genuine.
This, under our statutes, makes the acknowledgment presumptive evidence of genuineness (Comp. L. §§ 4233, 5930), without reference to the common law doctrines relative to subscribing witnesses. And the presumption that two reputable and upright citizens would not have attested a false instrument is very strong. "Whatever may be said of the possible ignorance of parties by one of the witnesses, the acknowledging officer is bound to inform himself of the identity of the parties, and Mr. Shearman’s position was such as to render it likely that he did know them, aside from the obligation of official duty. Hourtienne v. Schnoor 33 Mich. 274. No innocent explanation is given for any mistake of Mr. Shearman, and, if his certificate is untrue, he must have been very careless or the victim of a conspiracy of which no proof, circumstantial or otherwise, is given, beyond the testimony of defendants.
The handwriting, which is denied by Culkins, his wife not being educated apparently, has been testified to by persons who had dealt with him. There are three other documents in the case, with which comparisons have been made, and on which there is the usual contrariety of opinions. The signatures of Culkins to the notes and mortgage are those of a very fair penman, and .in a reasonably easy handwriting. They are natural and have none of the marks of feigned sig natures. The answers filed in the present cause, in which the defense of forgery was set up, is signed with small letters instead of capitals beginning the first and second names. But the handwriting is altogether too easy to accord with such ignorance. The signature to the bill filed in 1874, bears a remarkable general likeness to the disputed signatures, and is substantially identical in some of the details ; so is that of a deed made just before the contract of» 1868, to Mr. Styles. "We think the evidence of genuineness of handwriting quite as satisfactory as we usually find it. If forged, it is the work of a very expert forger. But in considering it, we cannot overlook the fact that Culkins in his testimony has undertaken to give palpably false statements concerning the manner of spelling his name, as Calkins, in which he is completely discredited by the general course of his dealings and by his wife’s testimony. The method of signing his answer indicates a fraudulent intent to create false appearances.
We are no more favorably impressed by his explanations. He purchased the land in question on executory contract in 1868, on seven years’ time, paying two hundred dollars down, and stipulating for annual interest. He now says that within two months thereafter he paid up the entire purchase mone3r and got his deed. The deed was unquestionably dated and acknowledged in October and November, 1868. But there is no claim that Culkins had any idea of paying in full until sometime in November, and there is no reason for supposing the deed w,as made in October for any such purpose. Its record in October, 1870, corresponds with the theory of complainant that it was delivered when the mortgage was taken, and was made soon after the sale to enable Charles Cameron, the real party in interest, to have the means of conveying title. No satisfactory theory occurs to us why on defendant’s theory the deed was antedated to October, 1868.
This however is not conclusive either way. But in order to show payment, complainant narrates his means of payment and when he obtained them. According to his story he had kept $900 in gold for seven years, and made his payment with that and other means, all of which he had on hand when lie made tbe executory contract. No sensible explanation is given why he did not pay the price in the first place, and the history of his accumulations is very misty and unsatisfactory. His story seems improbable, and there is nothing in the bank ■or other transactions of Mr. Cameron to corroborate it. The only paper found is his endorsement on the executory contract containing the exact computation of the sum inserted in the mortgage, and a memorandum referring to the exchange of papers on the day of its'date.
Defendant’s bearing on the witness stand, so far as evidenced by the answers to questions, was evasive and does not impress us favorably. As the circuit judge, who saw all the witnesses, came to the conclusion that his story was untrue, we feel the less hesitation in coming to that conclusion.
On a mere question of fact it is impossible to give all the reasons which produce, conviction. But we feel convinced that the defense is not founded in truth.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
The bill in this case is filed for a threefold purpose : First, to enjoin the prosecution of a suit in ejectment by defendant for the recovery of certain lands described therein ; second, to correct a mistake in a deed whereby complainant makes claim to the land; and third, to have a conveyance under which defendant asserts title to the land set aside as a cloud on complainant’s title.
The substantial facts are the following: In 1871 Josiali Kinyon owned the land in controversy. Complainant is his son, and was then living with him. He came of age at about that time, arid he claims that he then made arrangements with his father whereby the land was sold to him. The chief consideration was to be four years’ labor thereafter performed ; and this it is claimed was performed so as to entitle complainant to a deed in 1875. The land had constituted a part of the farm of Josiah Kinyon, on which he resided, and had upon it very little improvement. The value was perhaps $600. A deed to convey the land to complainant was executed and delivered in October, 1875, but it was ineffectual by reason of a misdescription of the land, which was not discovered until the land was levied upon as hereinafter stated.
In the early part of 1875, Josiah Kinyon was sued by defendant for the non-performance of a log contract. There was a long trial in justice’s court, in which Kinyon succeeded. Defendant appealed, and the case was pending in the circuit court at the time Josiah Kinyon made the deed to complainant. The case was not brought to trial in the circuit court until November, 1876, and defendant then recovered judgment for something over two hundred dollars. It is the theory of the defendant in this suit that the pretense of a contract between Josiah Kinyon and complainant for the purchase of the land by the latter in 1870 was .baseless; that there was no purchase and no payment of consideration, and that the deed execitted in 1875 had for its purpose to put the land beyond the reach of defendant in case he should recover judgment. 'This theory is supported by evidence which seems to show very clearly that after allowing his exemptions, Josiah Kinyon without this land would have neither real nor personal property from which defendant’s judgment could be collected.
There never was any written contract by Josiah Kinyon to deed this land to complainant; and this suit is therefore in effect a suit to compel the specific performance of a parol contract for the conveyance of lands. Defendant after obtaining his judgment caused the land to be sold on execution, and bid it in himself, so that the legal title subject to complainant’s equities is now in him. It is subject to those equities, if any exist, because it appears beyond question that defendant was informed of the mistake in the deed before he made his purchase, and he is, therefore, not a bona fide purchaser as against complainant. The question in the case, therefore, is this: whether complainant has proved such equities as entitle him to enforce the parol contract as against the owner of the legal title.
To make out his case complainant must show (1) a contract, the terms of which are clear and complete, so that no reasonable doubt can exist respecting the enforcement of it accord ing to the understanding of the parties, if enforcement shall seem to be equitable; (2) such acts of part performance as according to equitable principles will justify its enforcement notwithstanding the failure to comply with the statute of frauds in making it; (3) the payment of the purchase price.
It is claimed on the part of the defense that none of these things are shown, and that the case fails at every point. And it must be conceded that at no point is the showing as distinct, positive and unquestionable as would be desirable..
As regards the contract between Josiah Kinyon and complainant, the evidence almost exclusively comes from them. It appears to have been communicated to some of the neighbors, but not to the grantor’s wife, who was complainant’s step-mother. The parties to the contract agree in saying that complainant was to work four years for the land, and to give his father a cow he then had, which was worth $55. They also agree that he was to give another cow, then owned by him as a calf, and $15 in money; but the testimony of both shows that the two items last mentioned were not embraced in the original understanding as constituent terms of the contract ; for they agree that the $15 was paid for lost time, so that, though it was part of what was paid for the land, it was paid only as a substitute for labor not done. The manner in which the witnesses confuse what was paid with what it was agreed should be paid must be accounted for by their ignorance, which is apparent all through their testimony, but there is an air of candor in what they say, and the severe cross-examination to which they were subjected did not remove this appearance of truthfulness. We accept their statements as substantially correct, and are convinced that complainant bought the land as they testify, paying one cow at a time, and the other when his father saw fit to take it. The only vagueness about the arrangement concerned this second cow, but that was an insignificant part of the consideration, and whatever was left vague concerning it, if anything, was made certain when the father received it.
The acts of part performance have consisted in taking possession of the land, making improvements and spending money upon it. But these acts have not been of a nature as conclusive as could be desired. Complainant, being still unmarried, has continued to reside with his father, and both having very limited means, the improvements have not been extensive or specially noticeable to others. Moreover living thus together the parties have worked together considerably: complainant says, because they found it convenient to accommodate each other by an exchange of services; defendant says because Josiah Ehnyon in fact considered himself the owner of all the land. But we are inclined to think the separate possession of complainant was as distinct as could have been expected ; the son living with the father as he did, the two supporting themselves by hard labor, practicing strict economy, and making improvements only as their meagre crops after supporting themselves from them,would furnish the means. "We assent, therefore, to the conclusion of the circuit court, that there have not only been acts of part performance, but that the contract has been completely performed except so far as the mistake in the deed of conveyance has hindered. The consideration has been fully paid, and nothing remains to be done to make out the case for complainant:
In this view of the facts it does not become necessary to determine whether a desire to defeat defendant in the enforcement of his demand had anything to do with Josiah Kinyon’s action. No direct evidence to that effect was given, and some circumstances point in another direction. As the litigation stood at the time the deed was made to complainant, Ehnyon was successful, and we do not know that he anticipated any different result in the circuit court. Moreover after judgment against him had been recovered he made a proposition for a settlement, which the evidence in the case shows would have secured to defendant full payment had he accepted it. But as the equities of complainant antedate those of defendant, this branch of the case is unimportant.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
The declaration in this case alleges the organization of the Muskegon & Big Rapids Railroad Company and that Alexander Rodgers subscribed for a certain number of shares of the stock of said company; that said company and the Chicago & Michigan Lake Shore Railroad Company afterwards consolidated and the corporation thus formed took the name of said Chicago & Michigan Lake Shore Railroad Company; that said consolidated company assigned to Ephraim Mariner the said stock subscriptions of said Rodgers, and that said Mariner afterwards assigned to plaintiff Wells, who brought this action to enforce payment of such stock subscriptions.
The objections made to the introduction in evidence of the several articles of association of these companies were general, and did not point out any specific objection. The general objection made that they were “ incompetent, irrelevant and immaterial” did not direct the attention of the court below to any existing defect, or show that anything was lacking to render them competent, and it is very certain that the objection urged in this court would not, from an inspection of the papers during the progress of the trial in the court below, be likely to appear. Iu all such cases the specific objection or defect relied upon must be pointed out. For these reasons we shall not consider some of the questions presented in this court.
The same objection does not apply to the objection made to the offer of the record of the meeting of the stockholders of the Muskegon & Big Rapids Railroad Company, held to ratify the consolidation agreement. The objection made was that no proof of notice of such stockholders’ meeting had been given. No such evidence was given or offered, and iu the absence thereof it did not appear that a legal meeting of the stockholders had been held. It does not appear therefore from the record in this case that there was a perfected consolidation of these companies, such as would entitle the consolidated company to the stock subscriptions of the Mus kegon & Big Rapids Railroad Company, and the plaintiff in his declaration having alleged an' assignment from a consolidated company must fail if the evidence does not show that the statute had been substantially complied with and a proper consolidation perfected.
The evidence also tended to show an assignment of these ■stock subscriptions direct from the Muskegon & Big Rapids Railroad Company to Mariner and by him to plaintiff, but as the plaintiff had not declared upon any such assignment the proof made cannot avail him.
In any event a question may arise whether stock subscriptions like those sued upon are assignable, but as such question was not raised, we express no opinion thereon, at the present stage of this case.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell, J.
Plaintiffs sued defendant for an alleged balance due for purchase money of land sold him by a firm of Ayres, Learned & Ayres, to whose rights plaintiffs claim to have succeeded. On the trial below it was found that no legal contract of sale had been made, and the court rendered judgment in favor of defendant for the payments he had made, as paid without consideration. The case comes up on error. \
The only evidence of any contract consisted of an entry in the books of Ayres, Learned & Co. and of two receipts for purchase money, signed by that firm. The land was not fully described in either óf these, and the firm did not own it. The owners verbally assented but no more. Under these circumstances it cannot be claimed any sale was made out: Scott v. Bush 26 Mich. 418. Plaintiffs do not now insist that any sale was made which was binding.
But the present plaintiffs are not the persons to whom Gallup paid his money, and the fact that they purchased the partnership assets and became responsible to the outgoing partners, does not bring them into contract relations with the creditors of that firm, and no dealings were ever had whereby Gallup accepted the new firm as his debtor in lieu of the old. A claim of set-off in a plea cannot constitute a contract. There was no foundation for a money judgment in his favor : Pipp v. Reynolds 20 Mich. 88; Turner v. McCarty 22 Mich. 265; Hicks v. McGarry 38 Mich. 667; Hayes v. Knox 41 Mich. 529; Booth v. Connecticut Life Ins. Co. 43 Mich. 299.
So much of the judgment as gives damages to Gallup must be reversed with costs. The remainder is affirmed. As the case will not go back, the costs of the court below in Gallup’s favor may bi set off against those granted to plaintiffs in this court.
The other Justices concurred. | [
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Marston, C. J.
There seems to be one objection in this case fatal to the plaintiff’s right of recovery and which renders any discussion of the other questions raised unnecessary.
The action is brought to recover upon a breach of a bond given for the jail limits. In the condition thereof it is recited that the principal is in custody “ by virtue of a capias ad respondendum issued out of the circuit court,” etc. Upon the trial it appeared that he was in custody not by virtue of such a writ, but by virtue of a capias ad satisfaciendum.
The sureties executed the bond in suit in view of the recitals therein contained and the legal obligations arising thereon, and their contract could not be enlarged by showing a different liability contrary to such recitals, and of which it could not be assumed they had any legal knowledge.
This doctrine concerning the right of sureties to a strict construction of the obligation creating their responsibility and measuring the extent thereof, is settled by previous decisions in this State.
Under our statute, where a bond for the jail limits is given and the prisoner has been confined by virtue of a capias ad respondendum, the plaintiff is entitled to recover only the actual damages sustained by him, while in the case of a capias ad satisfaciendum, tlae damages is the amount directed to be collected by such execution. 2 Comp. Laws § 7351.
The sureties have a right to insist that they have assumed no such responsibility, and the judgment must be reversed with costs of both courts.
The other Justices concurred. | [
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Campbell, J.
This case is one wherein originally the bill now remaining for disposal was filed as a cross-bill. Mrs. Holmes in 1874 seems to have filed a bill for divorce on the ground of cruelty and refusal of her husband to continue marital relations or to speak to her though living for several years in the same house.
The husband answered and filed a cross-bill in which he admitted nearly all that was charged against him, but claimed that his wife deserted him in 1866 by refusing for more than two years to leave her parents in Pennsylvania and come to Detroit. That afterwards — two years and four months from her first refusal — she came out and he hired a house where they both lived, and have continued to live, but without resuming marital relations, he having always refused to condone the old desertion.
He then sets out a series of domestic annoyances of various kinds including coldness and neglect of domestic affairs, refusal to consult his taste in cookery, disarranging his books and papers and clothing, putting some poisonous and irritating substance in his clothing and bed, — charging him with incontinence and misconduct with another woman whom she accused of influencing him by a disgusting species of love-powder. He further set out his fears that his wife would try to gain back his affections by similar means, and that the fear had turned his stomach so that he could not eat food which she prepared, and had therefore left the house.
The parties by consent allowed the original bill to be dismissed without prejudice, and the case proceed under the cross-bill as an original suit.
Only one witness was sworn, who is an aunt of Mr. Holmes, and who testified more or less of her own knowledge concerning the alleged desertion and household arrangements and the love-powder story, and to some hearsay statements concerning other matters.
The bill was dismissed, and we think justly, as the case is a very absurd one. No desertion was made out, and if there had been, originally, it is very certain that the statute never was meant to cover a case where the wife returned-and was willing to resume her duty before any steps had been taken to proceed against her. And the idea that a husband can receive her back, rent a house and go to housekeeping with her, live in that way seven or eight years and exact her unpaid services, and still treat her all the while as having lost her rights by desertion, is too preposterous to bear discussion. It is equally ridiculous for a man to talk about extreme cruelty, which if cruelty at all could only be made such by the wounded feelings of a faithful husband, when he was all the while denying the rights of his wife to any consideration whatever. He appears to have found relief from all these annoyances by ceasing to live with her, and as he had always —according to his own stoiy — repudiated her claims as a wife, that relief on his theory should have been sufficient.
.The testimony does not make the wife act as a very lovely or refined character. But as complainant professes that he wished her to return until the two years were fully completed, and as he subsequently lived several years with her in his own house, and availed himself of her services as his cook and housekeeper, it is not likely that he was ignorant of her coarseness. ¥e are not impressed by the testimony that she was the party who had least reason to complain.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
Defendants in error sued the railroad company in case for negligently setting fire to a quantity of hay and a warehouse, whereby they were destroyed. The facts as they were developed on the trial were that plaintiffs owned the warehouse and a quantity of hay stored near it on premises of their own, and that upon these premises they had caused to be laid a track upon which railroad engines and cars might be and had been running for their accommodation for a long time before the fire. When plaintiffs had occasion for cars, they had an arrangement with the railroad company to draw them in and take them out. A particular engine belonging to the railroad company, named Birchrod, was made use of for this purpose, and about the time of the fire it was going in and out several times á day. One of the plaintiffs testified that on the occasion of the fire she went in and out throwing sparks. “ The engine went out with one train of cars throwing sparks, as she was accustomed to do all the time.” He was sitting in the office watching her, and saw as she passed that a spark had communicated fire to the hay. There was quite a brisk breeze blowing at the time. The engine “ was noted for throwing sparks, and had two or three times before set loose hay on fire on the dock. She had set fire, thrown fire 'around on the dock, and set loose hay on fire before on the dock that season — that spring. She was in the habit of throwing sparks in going up the hill when she puffed hard, and had a load behind her. She threw live cinders I suppose a quarter or a half an inch in diameter.” This witness had called the attention of the train dispatcher of the railroad company to the dangerous condition of the engine that season and the season before, and ho said he would see it fixed. Plaintiffs had always had trouble with it, and were afraid of it, because of its throwing sparks. The train dispatcher kept putting off the fixing; said “ it would be fixed some time.” Nevertheless plaintiffs continued to employ from day to day this dangerous implement, until such a calamity as they had feared actually occurred.
It seems almost unnecessary to do more than to recite this evidence in order to dispose of the case. Instead of showing a cause of action, it effectually disproves the existence of one. This was not the case of a defective locomotive moving through the country and scattering desolation among those to whom its proprietors owed the duty of a care correspond ing to its dangerous nature; but it was a case of private employment, whereby the proprietors of the engine were solicited to send it upon the private business of the employers into a place where the latter well knew, and had for a long time known and understood it was likely to do mischief. If there was negligence on the part of the railroad company, it was to be found in consenting to be thus employed. There is just the same and no more reason for plaintiffs to complain of it that there would have been had they hired the owner of a vicious animal, known by them to be such, to bring him for their purposes upon their premises, and then been injured by him as they should have anticipated they might be. That which one consents to, and invites, he cannot complain of in the law as an injury. Motz v. Detroit 18 Mich. 495 ; Maxwell v. Bridge Company 41 Mich. 453.
But it is argued that the company promised to repair the engine, and plaintiffs had a right to rely upon this being done. The promise was to repair it “ sometimeand meantime the instrument was being employed by plaintiffs from day to day with knowledge that the repairs were not made. When there is a promise to repair immediately, or within a fixed time, and a party relies upon its having been done, and is injured because of such reliance, he has a right to complain; but this is no such case. The promise was wholly indefinite, and plaintiffs never relied upon it except as a probable future event. They knew the repairs had not been made when they employed the engine on the day of the fire, and they deliberately and most carelessly took the risks of what actually happened.
The judgment must be reversed with costs and the record remanded for a new trial.
The other Justices concurred. | [
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Graves, J.
Mrs. Morrow was indebted to one Hancock in the sum of $109 for goods sold and delivered, and Laidlaw, claiming to have acquired the demand by assignment from Hancock, sued Mrs. Morrow therefor. She resisted on the ground that she had been garnished by two of Hancock’s creditors and had been compelled in those proceedings to pay the demand on their claims. The circuit judge allowed this defense, and the main question relates to its validity.
The principal cases directly against Hancock and the cases of garnishment incidental to them were before a justice of the peace, and the recorded proceedings in all were adduced in evidence on the trial of this action. The service on Hancock in the principal cases was by leaving a copy of the summons at defendant’s last place of abode, and there was no other process or service and he never made appearance. On the return day and on the strength of this service the justice proceeded to hear the cases, and immediately rendered judgments against Hancock. ■
The summons in garnishment were returnable on the same day as those in the main cases, December 27, 1879 ; and the only evidence of service was a written admission to which was subscribed the name of Mrs. Morrow. She did not appear before the justice, but on being called on at her place of business by the attorney for the plaintiff she there subscribed and made oath to a disclosure which the attorney filed with the justice. She acknowledged in this paper that she was indebted to Hancock in the sum of $113 at the time she was served with process.
A summons to show cause in each case was then issued, returnable December 30th, and the only evidence of service was a written admission bearing her name. She did not appear and no evidence was offered to prove the genuineness of the signature attached to the admission. The usual declarations were made, and thereupon the justice rendered judgment against her on the admission in the disclosure. She never took any objection to the proceedings, and on the 7th of January following the justice issued execution, and Mrs. Morrow on demand by the constable paid the debt to him.
Whether the proceedings in the garnishee suits proper might not be upheld in favor of the garnishee against this collateral attack need not be • considered. The court would struggle to save a garnishee acting fairly and in good faith from paying a debt twice.
The law which regulates this proceeding contains many defects, and not the least among them is the want of suitable express provisions for guarding and protecting the rights of garnishees in respect to interests belonging to or claimed by parties other than the garnishee debtor, and for guarding and protecting the rights of parties claiming adversely to the various parties litigating. The act concerning this remedy in courts of record contains a provision bearing on this subject (Comp. L. § 6492), but it is quite partial and imperfect. Hut those courts from their inherent authority to make rules and apply their power to prevent injustice may to some extent perhaps, supply omissions and ward off mischiefs. The law applicable to justices’ courts has no such provi sion, and from their constitution and limited authority those tribunals are incapable of any such discretionary power.
In the present case a difficulty appears which cannot be surmounted. The judgments against Hancock, the principal debtor, were void upon their face. They were given on the return of summons served by copy left at defendant’s abode, and without any appearance. For the purpose of jurisdiction to render judgment there was no service at all, and there being no appearance, the right depended on service and that exclusively. §§ 5262, 5263, 5350.
The cases against Hancock became discontinued, and the plaintiffs therein have never become his judgment creditors. This appeared on the face of the docket when Mrs. Morrow-allowed the proceedings to go on against her and without objection. In permitting' this and in subsequently paying the demand she acted at her peril. The law denies jurisdiction to the' justice to give judgment against the garnishee when the principal suit has become discontinued and the plaintiff has not become judgment creditor of the principal defendant. There is then no basis for the further prosecution of the case in garnishment. It is only incident to the main case and it must fall when that falls. § 6449.
No further consideration is necessary. The judgment must be reversed with costs and a new trial granted.
Campbell, J"., concurred.
Marston, C. J.
No valid judgment can be rendered in justice’s court against a garnishee defendant until after a judgment has been rendered against the principal defendant in a cause wherein the justice had jurisdiction. 2 Comp. L. §§ 6446-6449; McCloskey v. Judge of Wayne Circuit Court 26 Mich. 100.
In the principal cases the justice acquired no jurisdiction over the defendant, there being no appearance, because of a defective service of process, as appeared by the return of the officer. Tbe return, a copy of wliicb is given in the margin, does not show that Howell was one of the family, or that the copy was left at the defendant’s last place of abode, in the presence of some one of the family as the statute requires. § 5262. It may be, had sufficient facts been set forth in the return, that Howell was one of the family within the meaning of the statute, but this we cannot presume.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred.
The defendant not being found, I served the within summons on the twentieth day of-December, A. D. 1879, at the city of Detroit, within the said county, by leaving a copy thereof at the defendant’s last place of abode, with C. P. Howell, a person of suitable age and discretion, who was informed by me of the contents.
W. W. Witherspoon, Constable.
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Graves, J.
One Glavin, a contractor on defendant’s road, procured the plaintiff to perform labor from the 18th or 20th of October to the 18th or 20th of December following. The latter obtained $20 of his wages and was eutitled to the further sum of $87.48. His right to this the contractor admitted, but never paid it. April 17,1879, Glavin assigned his contract and all rights under it to one James McOrea who was then and subsequently defendant’s superintendent. The plaintiff solicited payment of the company and it was refused. He brought this action on the statute of 1871 made for the protection of laborers and others. He alleged his claim in a special count and added the common counts. The company made no point on the sufficiency of the special count, and there was no evidence to establish any case under either of the others. The circuit judge directed a verdict for the company and the plaintiff excepted.
As the defendant found no fault with the special count it should be deemed a good one upon the statute.
The main question, if not the only one, is whether any case for the jury was made out. The statute makes it an essential condition of liability by a corporation that there is something due and owing to the contractor or sub-contractor as the case may be, and unless that condition exists the corporation is not answerable over. Now it expressly appeared at the trial, from the plaintiff’s own witness, and was not contradicted, that there was nothing due or behind on the contract from October 1, 1878, to April 17, 1879, at which date Glavin’s chance to be a creditor ceased, and there was no evidence tending to show that any indebtedness to Glavin arose after the date last mentioned. The case therefore failed as one on the statute. The circumstances in evidence were somewhat mixed. There were some facts favoring a liability outside the statute.
But even where separate causes of action are well set forth, of which one is on the statute and the other at common law, neither can be established except by facts proper to it. If facts proper to each are wanting, the defect cannot be aided by accumulating on one or the other of the causes of action the entire evidence both pertinent and impertinent to it.
There was some evidence tending to show that the company made a collateral promise of payment. But no such cause of action was counted on. Moreover, the agreement, if any, was to answer for Glavin’s debt, and seems to have been unwritten. The plaintiff appears to have a theory that Glavin’s assignment was in substance an assignment or surrender to the company and that the transaction carried with it an assumption by the assignee, and therefore by the company, of $1717 of Glavin’s debts to laborers, and amongst them that of plaintiff, and that the company thereby became bound to Glavin to pay the debt. Let it be admitted that there was evidence favoring this theory and that the agree ruent between Grlavin and IVlcCrea on considerations to which the plaintiff was not privy, would support an action for him, yet the case is not shaped for it. If the. company became liable on the supposed hypothesis, it was not a liability on this statute, but at common law under a special contract, and no such cause of action is laid. The case affords reasons for belief that plaintiff was encouraged to expect that the company would pay him, and if the record is not misleading he has a claim which the defendant on grounds of moral justice ought to pay without hesitation.
But as the court below reached the proper legal result on the case as presented, the judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Plaintiffs in error were sued on the official bond of Epley as town treasurer of defendant in error for moneys due from him to the township at the close of his official term in 1875. The finding of the court is that at the end of that year he was found to have a balance in his hands of $1215.80, which he did not pay over to his successor, Joseph E. Morrison, but a portion was afterwards paid to M. A. Peynolds, Morrison’s successor. The case was tried without a jury, and judgment was rendered for the balance.
The only points argued before us were that neither testimony nor finding can warrant the judgment.
"We do not see any defect in the finding. It is express to the effect that the balance was in Epley’s hands, and not paid over. But it is claimed there were other facts found which preclude such an inference. The only other fact so relied on is that in the account kept against Morrison by the town clerk. Morrison was charged with the amount as money in the treasury, and that Nice, who was Morrison’s, deputy, if there is any propriety in using such a name, settled Morrison’s accounts with the town at the close of his term on that basis. But it appears Morrison had no knowledge of these charges' personally, or to speak more precisely, that he was not present at the settlement, and is not shown to have had any knowledge that the clerk had so charged him.
The money In the hands of Epley at the close of his term was not money in the treasury in the sense that the township had it in its own custody, but was merely so much due to the township from Epley, which he was bound to pay over to his successor. Unless so paid over Epley and his bondsmen were liable.
If Morrison himself had given credit to Epley for this money, it might raise a presumption, perhaps, that it was paid over. But an entry by the town clerk, carrying over an apparent balance from one treasurer to another, could not be evidence of the receipt of the money by Morrison. Neither could the settlement with Nice of which Morrison was ignorant, be regarded as any such evidence.r And we think it cannot be maintained that a false statement made by Morrison himself could prevent the township from recovering moneys belonging to the corporation, from a previous defaulter. Nothing but an intentional acceptance of Morrison’s responsibility in lieu of Epley’s could discharge Epley. We are not prepared without further light to say that anything but payment would discharge him. Morrison’s sureties could not be bound by a false settlement.
Some evidence was necessary to show the payment of the money to Morrison. The testimony introduced could in no sense be regarded as even amounting to an admission by Morrison that he had received the money. We think therefore the judgment was right, and it must be affirmed with costs.
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Marston, C. J.
The complainants ask to be protected in their right to the use and enjoyment as a highway of a strip of land which would be the line of Guoin street in the city of Detroit if said street were extended easterly past certain premises owned by them, and to have defendants restrained from closing up as a street said strip, and that they may be required to remove a certain brick office which they have lately erected partly within the limits of said strip.
The defendants insist that the bill is silent as to whence they derive their title, and as to the ownership of the strip in controversy ; that the defendants are in possession of this strip and presumably are the owners thereof, and although the evidence may show sufficient to entitle complainants to relief, yet they must fail under the familiar and well-settled law of this State which denies relief upon a case proved but not set up in the bill.
We shall therefore first look to the bill in order to ascertain what is there set forth, and in so doing we must bear in mind that the complainants do not seek relief upon the ground that this strip had ever been dedicated or opened as a public highway, but that their grantor in selling and conveying certain premises to them bounded the same on this strip as a street. Their position is that the purchase of a lot described as bounded on a street, estops the grantor and his privies from shutting it up or obstructing it, so as to prevent his grantees making use of it for their own accommodation in the enjoyment of their purchase. Smith v. Look 18 Mich. 56.
Where the defendants in such a case answer claiming the benefit of a demurrer therein, the court will not require the same particularity in setting out the sources of defendants’ ‘title as might be required upon special demurrer. ■
The bill sets forth that George B. Russel being the owner and actual possessor of certain lands on the 21st day of September, 1859, conveyed the same to complainants, and in the description thereof bounded them as “ on the south side of Guoin street,” and that this conveyance was on the day subsequent to the date thereof duly recorded. The bill sets up “ that Guoin street was an open street, l’eaching to Adair street on the west of said premises, and said Russel, who then owned property east of Adair street, had intended and claimed his intention to open said Guoin street through the premises in question, and to the eastern bounds of the city; that he so gave out to your orators, and had a map or plat prepared, showing the proposed extension of said street, and that he sold the premises, and your orators bought them in reliance upon said street’s being extended and continued as an open street; and they farther show that immediately after the purchase and taking possession of the premises which were sold to them as fronting upon said street, said Russel and they united in plowing the lands included within the boundaries of said street, if extended, throwing them up in proper shape and fitting them for the purposes of a street or highway, and said lands have always remained so, until the unauthorized intrusion,” etc.
While these allegations might have easily been so framed as to allege more clearly and distinctly Russel’s ownership in the disputed premises at the time he conveyed to complainants, yet under the pleadings we are of opinion that the only fair reasonable inference or conclusion to be drawn is that Russel was then the owner. The acts and sayings were those of an owner and we think the fact is sufficiently alleged.
The bill farther alleges that westerly of complainant’s premises, and fronting on the northerly line of Guoin street if extended, are certain premises occupied by defendants, and being fifty feet or the width of said Guoin street distant from complainants’ premises. The bill then sets forth the encroachments, and alleges that Russel, their grantor, claims that he has the premises covered by said contemplated street and that while he acknowledges complainants’ right, yet that he insists upon such title and is a necessary party defendant.
The bill farther alleges that defendants claim and pretend to have a title to said strip under a certain mortgage dated December 27, 1859, but which from the description therein recognized this extension of Gruoin street and did not cover this disputed strip; also that they claim title thereto in other ways and by subsequent conveyances claim to be owners in good faith of the premises in question.
It will thus be seen from the allegations in the bill that it sufficiently appears to entitle complainants to relief, if proved that defendants are not the owners of the disputed strip and are bound to recognize and respect complainants’ right therein, in that it appears that Nussel was and is the owner of this disputed strip; that defendants’ premises front on the northerly side of said strip, and that they are subsequent purchasers from Nussel through the mortgage referred, to. When we come to. examine the evidence in the case it is clear and explicit; indeed, no serious question was raised upon this part of the case.
It is insisted by the defendants’ counsel that complainants have not sought the proper forum or remedy and that courts of chancery will not order a finished building to be torn down and destroyed but will leave the parties to seek a remedy in a court of law.
Counsel for defendants were not very successful in pointing out what proper or adequate remedy complainants would have under such a state of facts in a court of law. They are not the owners in fee of this strip : ejectment could not be maintained by them for it; and even if they could maintain an action for damages the remedy would'be inadequate. The street or strip in question is not an open public street where the ordinary remedies for an. obstruction thereof could be resorted to, but is one which these complainants as against their grantor and his privies and strangers or trespassers are entitled to have kept free and unobstructed. As to them the obstruction is a private nuisance.
.While it may be true as a general rule that courts of chancery will not order the destruction of a building under ordinary circumstances, yet where a party against objection has persisted in erecting a structure without any greater right than defendants had in this case, the court will not reward them for or assist them in profiting by the .wrong done in permitting them to enjoy the fruits of their wrongful act. To do so would indeed be an encouragement which we fear many would be willing to take advantage of. The court will rather look at all the surrounding circumstances and will not inflict unreasonable damages in ordering the removal or destruction of property, where the complainants can fairly enjoy their rights in connection therewith. In all such cases the good faith of the wrong-doer must enter very largely.into and be an important factor in shaping and determining the relief to be afforded.
The structure complained of in this case is a small one-story brick office and projects into this way about twenty-five feet. It can probably be easily removed, and if not, can be torn down without causing very serious damage; of this defendants knowingly ran the risk and must now accept the consequences.
The decree below dismissing the bill will be reversed, and a decree entered in this court in accordance herewith, with j costs of both courts.
The other Justices concurred. | [
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Graves, J.
April 5, 1877, the plaintiff’s father, Levi McDaniels, died intestate, seized in fee of fifty acres of land in Wayne county, and leaving a widow and eight children. November 9, 1877, letters of administration were issued to tbe defendant Walker, arid commissioners on claims appointed. February 14, 1879, the latter filed their report containing an allowance of claims to the amount of $285.42. The widow and heirs were occupants of the farm, and they agreed between themselves that specific portions should be occupied in severalty, and pursuant to this arrangement the plaintiff on and prior to September 10, 1878, was in the exclusive possession and occupancy of the parcel of ten acres described in the declaration, and at that time he sowed it to wheat. November 25, 1878, the administrator petitioned for leave to sell the real estate so left by deceased and lawfully remaining in the enjoyment of the widow and heirs, for the purpose of paying the debts, and on the 24th of December the •court granted leave to sell the ten acres held by the plaintiff. February 17,1879, the administrator, pursuant to said license, sold and conveyed said parcel to William Brown, one of the •defendants, who took possession of the land. July 15, 1879, the plaintiff was engaged in harvesting the wheat which had grown from this said sowing on such parcel, and the administrator, with the approbation of Brown and the assistance of the other defendants, entered and took the wheat away from the plaintiff, and disposed of it. The plaintiff brought trespass for the wheat, and the circuit judge ordered a verdict for the defendants.
The substantial question is, whether under the legal doctrine concerning emblements, the plaintiff was not entitled to the wheat and the free ingress,'egress and regress in order to cut and carry it away, and we are satisfied he was. The estate descended to the heirs, but for the term of six years from the death of the intestate was subject to sale for the payment of debts under license from the probate court, and subject also, during the settlement of the estate, to the jurisdiction of the court of chancery against the commission of waste. Act 138, Public Acts of 1877, p. 126. Subject to these qualifications the estate of the heirs and the right of enjoyment were absolute. There is a concurrence of principles in the plaintiff’s favor. Wherever it can be done con sistently with the rules of justice and equity, it is reasonable to encourage husbandry and the production of whatever is necessary to the support of human life. And it is also a general principle that wherever the law gives a right, it gives at the same time whatever is needful to its beneficial enjoyment.
When the wheat in controversy was sown, the possession and right of possession were in the plaintiff. He was entitled to the en joyment to the exclusion of all others. Whether, for the purpose of settling the estate, the title and right of possession would be transferred was uncertain, and this state of uncertainty might continue for six years from the death of the intestate. In ease the change should take place it would be by act of law and not by any act of the plaintiff. It was for the public advantage that the land should not lie fallow, and in order to favor its cultivation it was proper that the plaintiff should be under the protection of the rule which declares that he who sows shall reap. Again, the law gave him the succession and right of possession, and it is a natural presumption that the attending advantages were meant to be given also. It would be absurd to suppose that a barren occupancy was intended which might continue for several years.
An ancient application of the doctrine concerning emblements is worth citing. A lease was made to husband .and wife during coverture, and the husband sowed the land, and afterwards they were divorced causa prceconiractus. It was held that the husband, nevertheless, should have the emblements, and not the lessor; for although the suit was the act of the party, yet the sentence which dissolved the marriage was the judgment of the law. Oland's Case 5 Co. 116 b. See also Bulwer v. Bulwer 2 B. & A. 470.
So here the right and interest of the plaintiff were determined by an act of law which he was not in a condition to foresee, and he was entitled to the crop, and the interference complained of was undoubtedly a trespass, and he was entitled to recover for the wheat. As a crop in his ownership separate from the land, it was competent to sue defendants for it aa constructively severed, although a portion of it at the time of their forcible interference was still uncut.
The judgment must be reversed with costs and a new trial granted.
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Campbell, J.
An information in the nature of a quo warranto was filed on behalf of relator in the circuit court for the county of Gladwin, to try the title of respondent to the office of judge of probate for that county. Respondent was appointed by the governor, in September, 1878, in place of the regular incumbent, Aaron D. Stevens, who had been elected for the term which began in January, 1877, but who, it is agreed, removed from the county in May, 1877. Relator claims to have been elected at the regular general election in November, 1878. No notice was'given of this election as including a vacancy in the office of judge of probate as contemplated by statute; but the sheriff published a newspaper notice on the 10th and 17th of Sejffember containing such an intimation, but in his subsequent publications left it out. No action was had declaring the vacancy or explaining it, except the commission issued by the governor to respondent. At the election there were no votes cast for any one but respondent, and he received one hundred and three votes in one town, eight in a second and two in a third, or one hundred and thirteen votes in all.
The facts were all agreed upon, but the circuit judge on the hearing decided he had no jurisdiction and dismissed the case. He did so on the ground that this court had held that the judge of probate was not a county officer, but was a part of the judiciary system of the State. Such judges are not “State officers” in the sense in which that term is used in the statutes, and are not, therefore, within the exception of § 7101 of the Compiled Laws, which takes those officers out of the jurisdiction of the circuit courts in this class of cases.-
There is no statute which makes it imperative that a vacancy in this office shall be filled at the next general election where there has been no special election. In People v. Hartwell 12 Mich. 508, we held no notice of an election to fill a city office at a general election was necessary, because the charter, having provided for ascertaining the existence of a vacancy by the declaration of the common council, made it imperative that it should be filled at the next election. But under the same charter we also held that a vacancy in the recorder’s office could not be so filled without notice or some other action, because that office was excepted from the mandatory clause. People v. Witherell 14 Mich. 48. And in People v. Canvassers of Kent 11 Mich. 111, we held that in an election for circuit court commisssioners, where the notice was at first given for a choice of two commissioners, and then confined to one, although two persons were voted for but their combined votes equalled only the aggregate of votes cast by voters for single officers, they were to be regarded as running for one office and as to the other there was no election. In the present case it is entirely clear that there could have been no general idea that there was to be an election for judge of probate, for there were no opposition candidates and the number of votes cast is conclusive of the general understanding. The change in the notice here as in the Kent election, would indicate that no such election was to be had. It can only be on the theory that some positive rule of law required the people of Grladwin county to accept an officer whom they never knew they wore voting for, that such an abuse can be established. We think there is no such rule.
It is a necessary safeguard to popular elections that the people be informed what officers they are to vote for. They may be expected to know what elections are to be made at the regular general elections, and as to those in ordinary eases, it might be dangerous to allow a failure to give notice to avoid the election. This would enable the popular will to be defeated by the misconduct of ministerial officers. But there can be no such knowledge assumed concerning vacancies in office, and without some distinct and public notice of some sort, such an election could hardly fail to be capable of the worst kind of fraud and trickery. As to such matters the statutes concerning general elections are only permissive,-and declare that vacancies may be filled — not that they shall be. Comp. L. § 34. This being so, we cannot regard the absence of a notice, where there has been no other equivalent action, as unimportant. Whether the sheriff could give it without the direction of the supervisors, or whether a finding of the fact of vacancy by them is not always required, as contemplated in sections 45 and 616 of the Compiled Laws, we need not now inquire. But it is enough for the purposes of this case to say that no such election can be had without some adequate notice.
The respondent is clearly entitled to the office, and inasmuch as the facts are all agreed upon of record, a judgment must be entered that the plaintiff is entitled to no relief and that the defendant is not guilty of any usurpation, and that he go hence without day and recover against relator his costs of both courts.
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Cooley, J.
This is a dispute respecting the price of a bill for wine and cigars furnished at a supper which the defendants in error, Gay & Yan Norman, had provided for a society-known as the Ancient Order -of Foresters. It seems that Eaton, the plaintiff in error, had ordered the supper, and it was agreed that the charge for it should be one dollar for each person partaking. The testimony of Maxwell, the business manager for Gay & Yan Norman, tended to prove that wine and cigars were not to be furnished at the price named, but that Eaton told him after the agreement had been made, to furnish wine and whatever else was necessary, and that under this direction he did furnish wine and cigars as ordered by the guests, and that these were extra. Eaton, on the other hand, testified that it was expressly agreed between himself and Maxwell that wine was to be 'furnished as part of the bill of fare at the price agreed upon.
The circuit judge instructed the jury as follows : 1. That if they found that Eaton authorized the furnishing of the wine and cigars by the plaintiffs beyond the regular supper, or agreed to pay for them, then the plaintiffs are entitled to recover the value of the wine and cigars; 2. If Eaton only agreed to pay for the supper one dollar a guest, and the plaintiffs supplied the wine and cigars on their own account, then the defendant is entitled to recover; 3. If there was no contract whatever about the wines, and they were furnished and drunk at the supper, and Eaton knew they were being supplied to the guests at the supper which he had ordered, and made no objection to their being so supplied, then there arose an implied contract on his part to pay what the wines and cigars were reasonably worth, and plaintiffs would be entitled to recover to that extent, — the remainder of the bill having been paid.
We cannot assent to this third proposition. If Eaton agreed with Gay & Tan Norman upon the bill of fare and the price, he thereby limited what could be furnished on his account, and he had a right to expect that any printed bill which should be placed before the guests would be limited accordingly. No guest would then feel at liberty to call for anything not there appearing, and if he did, and it was furnished to him, it would be a matter between himself and the proprietors with which Eaton could have no right to concern himself. It would be an extraordinary rule of law that would, ■compel Eaton, under such circumstances, when he saw the guests partaking of wine, to give formal notice to the proprietors that he should pay no debts of their contracting. He had made his contract in advance and stipulated what his liability should be; and the guests were not his agents for the purpose of increasing this liability. If they ordered what he had not bargained for, he not only had a right to assume that they did this on some understanding, express or implied, with the proprietors, but common courtesy required him to refrain from interfering. The supper as agreed upon was his affair; the furnishing of extras was inter alios, and the proprietors could no more call upon him to pay for them, on the basis of implied contract, than upon any stranger.
The judgment must be reversed with costs and a new trial ordered.
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Cooley, J.
Cook brought suit in ejectment to recover from Bertram a quarter section of land in Lenawee county, claiming in the declaration the title in fee. On the trial he made •a prima facie showing of title and rested. Bertram thereupon introduced two tax titles, originating later than the title of Cook, and owned by himself, and which showed prima facie that he was owner in fee. To overcome this defense Cook introduced parol evidence which showed that while he was in peaceable possession of the land by James M. Spear his tenant, and was asserting title, Bertram collusively obtained possession from Spear, and retained it till suit broirght. Cook thereupon insisted that Bertram was estopped from disputing his title, as Spear was, who had wrongfully let him in; and the court so held.
For the purposes of a recovery of possession this ruling was correct. Bertram v. Cook 32 Mich. 518; Cook v. Bertram, 37 Mich. 124. It appears, however, that the circuit judge treated the estoppel as equivalent to an admission of title in fee; and he directed a verdict accordingly. This was plainly erroneous.
Spear was in possession as tenant with certain rights which must rest on corresponding rights in Cook as landlord. He cannot claim the one and deny those on which they rest. But the estoppel only continues so long as the lease continues, and for any further time while the tenant may hold over. If the tenant surrenders the possession he has obtained or enjoyed by means of the tenancy, he is as free to dispute the landlord’s title and set up an independent right in himself as any other person. Fuller v. Sweet 30 Mich. 237; Page v. Kinsman 43 N. H. 328. And any one who comes into possession by consent of the tenant, as Bertram did in this case, is subject to the same estoppel, but no other. He cannot dispute the landlord’s present right, but the estoppel goes no further. Newton v. Roe 33 Ga. 163; Lowe v. Emerson 48 Ill. 160; Abbott v. Cromartie 72 N. C. 292; Hughes v. Watt 28 Ark. 153; Longfellow v. Longfellow 61 Me. 590; Brenner v Bigelow 8 Kan. 496 ; Prevot v. Lawrence 51 N. Y. 219 ; Phelps v. Taylor 23 La. Ann. 585 ; Mattis v. Robinson 1 Neb. 3.
The error of the court led in this case to some singular results. Bertram had made improvements upon the land under claim of title, and he had the value thereof appraised by a jury with a view to a recovery if he lost the land. Cook also had the value of the land without the improvements assessed, and it was found to be $4508. The record recites that he thereupon elected to abandon the land to the defenhant, and the court ordered judgment in his favor for the value so fixed.
Now when it is borne in mind that Cook had established no title, but had only by his parol evidence estopped Bertram from disputing his present right to possession, it is manifest that there was no basis for such a judgment. There had been no appraisal of the value of Cook’s interest, but what had been appraised was the value of the fee which, subject t® Cook’s interest, was prima facie in the defendant. It may be that when the defendant’s tax titles come to be investigated they will prove worthless, but the right to insist upon them will remain after the estoppel has ceased to operate; that is to say, after Bertram has surrendered possession. But while the estoppel is insisted upon, evidence of the actual title is precluded, and the court could not know who owned the land. It was only known and determined that Bertram, by reason of the manner in which he obtained possession, was under obligation to surrender .the present possession.
It is urged, however, that if the judgment for the value of the land is erroneous, the court may now correct the error by giving judgment for the recovery of possession merely. But if the plaintiff actually filed his election to take judgment for the value, as the record recites that he did, the election still stands, and no other judgment would be admissible. Plaintiff must stand by the judgment he has chosen to take. Weber v. Henry 16 Mich. 399. Besides, if we could allow such a judgment at all, it would only be matter of discretion, and we should' only do so when satisfied that it was warranted • by the record. Technically it would be, in this case, but the verdict as entered, so far as it finds Cook the owner in fee, is manifestly unwarranted.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell, J.
Mrs. Heyman, the plaintiff, sued defendant in replevin for certain goods which, as we understand the finding, the court below held were unlawfully taken from her by defendant, but nevertheless gave judgment in his favor. Defendant at the time the goods were replevied held them as Hnited States Deputy Marshal, under an execution issued from the Circuit Court of the Hnited States for the western district of Michigan, against one Adolph Heyman who was plaintiff’s husband. There are no legal conclusions set out in the finding, and there are some facts set out which would seem to indicate that there were questions discussed concerning the validity of plaintiff’s title. We have had some doubt whether the court below' did not err in failing to find more specifically as requested. But the facts actually found show title in plaintiff and show nothing to controvert it. We shall assume, therefore, what has been assumed by counsel for both parties, that the ground of the decision was that defendant’s possession, though wrongful, must prevail over State process issued in favor of the real owner. And we shall consider the record as involving the question whether a Hnited States Marshal, by seizing the property of a stranger to the execution in his hands, can cut off the right of the owner to recover his property thus wrongfully seized. For the right is effectually cut off if it cannot be replevied in a State Court, when there is no remedy provided by law for trying the title anywhere else.
The case supposed to stand in the way of this remedy is Freeman v. Howe 24 How. 450. The language of that case does, when taken by itself, tend to sustain the claim of defendant, and if it were applicable here, and not affected by subsequent decisions, we should be disposed (as stated in Carew v. Matthews 41 Mich. 576) to regard it as perhaps disposing of the ease. But when this decision is considered in the light of other decisions which are recognized as binding in the United States Courts, we think it has no force when applied to the issue before us.
The only ground of the decision was that the property there in controversy was in the custody of the United States Court for legal purposes, and that an effectual remedy existed in that Court to try and determine the rights of the adverse claimant. If this was so there was little room for discussion. The remedy there suggested was a bill in equity, which it was said would not be treated as a separate suit but only as a collateral proceeding in the same suit. And reference was there made to some other cases in which the question decided was, not whether one jurisdiction could interfere with another, but whether the remedy in equity was a proper remedy to protect the particular rights in controversy. In Freeman v. Howe there can be little doubt that there was a remedy in equity so far as the subject-matter was concerned, for the complaining parties were railroad mortgagees in trust and the property replevied by them was taken in that capacity against a levy not by execution, but under mesne process.
There was certainly some force in the suggestion that the remedy was there adequate, and the fact that the property was in the custody of the court was assumed. Possibly that is true in some cases in regard,to property held under mesne process. But such has not been the view concerning property held under final process, and it has been uniformly held that a Marshal is a trespasser and in no way protected by his process when he seizes the property of a stranger. '
In Buck v. Colbath 3 Wall. 334, the action was trespass, and therefore all that was said about other remedies was oliter. Bnt it was distinctly intimated that the difficulty did not arise except concerning property actually or constructively in the possession of the court, and while litigation was still pending. Property under mesne process is in some cases the only basis of jurisdiction, and it is often subject to disposition for various purposes pendente lite, so that it may not only be discharged from seizure, but may sometimes be dealt with otherwise. This creates at least a colorable, if not a real distinction, and may give some force to the claim that it is in the custody of the Court, although we are not prepared to say the distinction is usually in fact very important. The case of Buck v. Colbath is. significant in confining the doctrine of conflict to interference with the action of courts, and in holding that a Marshal who levies on the property of a stranger is in no sense acting under process unless the writ directs the seizure of the specific property taken. The distinction between writs against specific property and those against undescribed property of named persons is made the turning point. And it was said emphatically that “the plaintiff in error is mistaken when he asserts that the suit in the Federal Court drew to it the question of title to the pro-' perty, and that the suit in the State Court against the Marshal could not withdraw that issue from the former court. No such issue was before it, or was likely to come before it, in the usual course of proceeding in such a suit.”
In the subsequent case of McKee v. Rains 10 Wal. 22, it was held that a trespass suit by a third person against a Marshal could not be removed into a Court of the United States, because his levy could not be regarded as made under any authority of the United States. This is certainly equivalent to holding that he is no better off than if he had no process, and it is difficult to conceive how it leaves any room for holding that a disturbance of his wrongful possession is an interference with the Court.
It would not be — we suppose — competent for Congress or any State, even by positive enactment, to deprive the owners of property of the right to vindicate their title by legal process in a judicial trial. There is no legislation which provides ‘ any method whereby Mrs. Heyman could secure her rights in the United States Court against Covell. Unless she has such a remedy in due form of law her only resort must be to the State Courts, and this is recognized in McKee v. Rains as well as in Slocum v. Mayberry 2 Wheat. 2. It was indeed held in Freeman v. Howe that equity would relieve in that particular instance, and was said that it would in any case of wrongful levy on a third person’s goods. If this were so, the case would not be difficult of redress. But it has since been held that there is no such remedy. In Van Norden v. Morton 99 U. S. 378, a bill in equity was filed in the Circuit Court of the United States for the district of Louisiana to secure protection and restoration against a Marshal’s levy under an execution from the same Court, and the Circuit Court made such a decree. But on appeal to the United States Supreme Court it was held that replevin was the proper remedy to regain possession, or some similar proceeding in the nature of a common-law replevin, and that equity had no jurisdiction. The decree was reversed for want of jurisdiction, without prejudice to an action at law or other redress.
If there is no remedy by bill in equity then it follows that a common-law action is the proper redress, and such an action can only be brought in a court of the United States where the parties are such as to confer jurisdiction; and in such cases the statutes have made the jurisdiction concurrent with power of removal under certain circumstances. In the present case it does not appear that suit could have been brought anywhere but in the State Court, and the case has gone to judgment in the usual course.
“We think there was no ground for refusing redress to plaintiff, and that she was entitled to judgment on the finding.
Judgment must be reversed with costs and judgment entered for plaintiff with nominal damages of six cents.
Marston, C. J., and Graves, J., concurred.
Cooley, J.
My brethren may be right in their view that the later decisions of the Federal Supreme Court have in effect overruled Buck v. Colbath, but I prefer to await an authoritative declaration to that effect by the court itself. | [
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Campbell, J.
The bill in this cause was filed to stay a trespass suit and remove a cloud upon title. Birdsallin 1855 purchased from one Minor T. Johnson an eighty acre lot in Kent county,-being the north -J of the south-east i of section 8 in town 8 north of range 12 west. When he bought, a deed was on record of the north forty acres of this tract, made in May, 1854, by Minor T. Johnson to his son James E. Johnson, who was then under age, and about sixteen or seventeen years old. This deed was recorded October 2,1854.
It is claimed by complainant that this latter deed was never delivered, and was put on record fraudulently.
The testimony shows that on getting his deed from the-original purchasers, under which he secured his own patent from the State, Minor T. Johnson had this deed to his son drawn up and executed, and expressed to others his intent to give him the land. On his return to his house he openly-showed the deed to his son and told him either that he should have it as soon as he was able to take care of it, or as soon as he got money enough to record it. He then put it in a trunk which was not kept locked, and where miscellaneous letters and papers were kept, with other documents. The son in October took it and had it recorded.
Birdsall claims he did not discover or know of the record, although he searched and inquired. It appears, however, that in 1857, and perhaps earlier, he tried to sell the land and the intended purchaser would not buy because the deed to James was on record. In 1862, Birdsall began an action of ejectment for the land, but submitted to a nonsuit the next year.
The land was from the beginning assessed to James Johnson, and he paid the taxes except in 1862 when he was iu the army, and when, it is assumed, Birdsall paid them. Birdsall claims that James paid them early so as to anticipate him.
In November, 187S, James died, leaving four children, all under twelve years old. The next spring, April 8, 1879, Birdsall went upon the land and a suit in trespass was begun against him on behalf of the children on the 23d of April. On the 10th of May, 1879, this bill was filed, and an injunction granted which was afterwards dissolved. Proofs were taken and the bill dismissed. Birdsall appeals.
We think the evidence predominates in favor of the title of James E. Johnson. His father shows that he meant his son to have the deed whenever he chose, and the other testimony indicates that there wa%no secret made about the intent to-give him the land. It is not at all likely that a young lad would undertake to commit a fraud which would be so readily found out, and it is less likely that Birdsall would submit to losing his land and fail to file a bill when he discovered it, and when all the facts were fresh. He had actual and not merely constructive notice within a year or two after his purchase, but took no steps until James had gone to the front with the army, and discontinued those proceedings without going to trial. He then did nothing, and seems to have made no claim, until he had no one to contend with but minor children.
In our opinion the deed was valid and vested title in James E. Johnson. We are also of opinion that the long and unexplained delay and acquiescence of Birdsall would cut off any equities if he had them, and that he has neither a legal nor an equitable claim to relief.
The decree is affirmed with costs.
The other Justices concurred. | [
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Graves, J.
This is a case made after judgment. The action was commenced before a justice of the peace and taken by appeal to the circuit court and there tried without a jury. The hearing was on the common counts and the general issue. A portion of the evidence is brought up, but not all. The judge made special finding, which he subsequently amended at defendant’s instance. No means are afforded for inquiring whether the evidence required the finding of other facts or a modification of the series of facts actually found.
The only question raised is whether the judge’s conclusions of fact support the judgment. They are, in substance, that in March, 1876, the defendant orally agreed to sell the plaintiff forty acres of land for $750; that the plaintiff was to pay down $100 and at least $100 in each year thereafter until the whole amount with interest should be paid, and that the defendant within a few days would cause the agreement to be reduced to writing; that the plaintiff immediately paid the first instalment of $100, and was at the same time admitted into actual possession under and in pursuance of the contract ; that the plaintiff proceeded to occupy the land and made an improvement in the form of clearing of the value of $20, and in October of the same year paid $50 more on the purchase price; that in December following the plaintiff offered to pay §200 more if the defendant would have the contract put into writing according to the understanding, but the defendant refused and informed the plaintiff that unless the whole residue of the purchase price was paid in twenty days he would dispossess the plaintiff of the premises; that the plaintiff offered to surrender the land if defendant would refund the amoxxnt, being $150, which had been paid, but defendant x-efused to do so; that the defendant in January, 1877, notified the plaintiff in writing to surrender the premises, and that the latter elected to consider the notice as a rescission of the agreement and vacated the premises in accordance with it; that up to the time of the demand of possession the plaintiff had kept the agreement on his part. The amount allowed consisted of the purchase money and intei’est and the value of the clearing, making in all $177.24, and for this judgment was given.
The contract of sale became a valid one by pax-t performance (Scott v. Bush 26 Mich. 419), and when the defendant proceeded to take xneasures to oust the plaintiff and put an end to the contx-act, the latter was at liberty to acquiesce and consider‘it as determined by the former. This he did, and as a consequence there was a failure of consideration for the purchase money which had been paid, and the defendant became liable to pay it back under the equitable count for money had and received, and according to oxir previous decisions the allowance of the interest was not illegal. The clearing was a valuable service to the land. It was made in reliance on the partly executed agreement, and by repudiating that agreement the defendant appropriated it. By so doing he made himself liable for it. He could not retain the benefit without paying for it.
As no error is shown the judgment must be affix’med with costs.
The other Justices concui’red. | [
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Graves, J.
Many topics are agitated in this ease, but they are generally moot questions. Both counsel have assumed that the bill is filed under the statute to quiet title. Admitting this to be correct, the record discloses insuperable objections.
Waiving the point raised by the defense that complainant is proved to have no title, it is only needful to refer to the defect relative to possession.
The subject matter of the suit is a parcel of land of lot 39 and seven feet off of lot 40 in Negaunee, covered by a building containing two stores and several rooms above suitable for various purposes. The bill applies to the premises as an entirety and not to any particular part or portions in severalty. • At the time of the bill and long prior thereto the several parts of the property were held separately by independent occupiers and not jointly or in common, and it is too plain to admit of question' that complainant was not an occupant, or in possession of the stores and a portion of the room overhead. Granting that he was occupant of some of the rooms on the second floor, it is not to be assumed that his occupancy there was the “ actual possession ” required by the statute, or anything beyond a holding under the possession of Crocker and Mapes., But if otherwise it was a possession which went no further than the actual occupation, and in view of the claims made by Crocker and Mapes and the occupancy of the other portions he was in a situation to bring ejectment for the holdings beyond those occupied by himself.
If therefore we contemplate the bill as counsel have regarded it, the case it makes is different from the case made by the facts. But the court is not bound by the opinion of counsel concerning the theory of the bill. We are to look at the -case made, and though allegations appear which are appropriate to a bill under the statute to quiet title, still, if in fact the bill is constituted to call for redemption and on grounds of equity to set aside or displace interfering obstructions, a case is presented which falls under the inherent jurisdiction of the court and needing no aid from the statute. Ormsby v. Barr 21 Mich. 475 ; s. c. on motion for rehearing 22 Mich. 80; Jones v. Smith id. 360. See also King v. Carpenter 37 Mich. 363. And this bill is so far within this theory as to make it expedient to see what in effect is the case actually set forth under it.
The allegations are that in 1867 the complainant owned adjoining lots 39 and 40 in Negaunee, each being thirty-three feet in width, and with his family resided in a small building situated on the east twenty-six feet of lot 40; that on the 26th of September of that year he borrowed of John Maroney, for the purpose of erecting a block on the premises, the sum of $800 to be repaid in one year with interest at ten per cent., and to secure the loan gave his note and a mortgage on the two lots, his wife joining in the mortgage ; that he went on with his enterprise and put up a two-story building designed and arranged for several separate leaseholds and covering all lot 39 and a narrow strip seven feet wide off of the west side of lot 40, and worth $2000 ; that in making this improvement he fell in debt several hundred dollars beyond the money borrowed of Maroney, and May 9, 1868, these debts passed into three judgments in favor of as many different creditors, and aggregating, inclusive of the taxed costs, the sum of $1233.48; that defendant Maynard acted as attorney on the part of these creditors, and likewise held the mortgage as attorney for the mortgagee; that by his direction executions were issued to the sheriff, who levied on the parcel covered by the new building, and on the 28tlrof December,-1868, sold the same to Maynard and gave him a certificate of sale : — a copy is set forth in the bill; that about three and a half months later and on the 17th of April, 1869, Maynard began foreclosure of the mortgage by publication, and on the 17th of July following became purchaser in that proceeding of both lots 39 and 40 as one parcel,for $909 ; that on the 12th of April, 1870, and when the fifteen months for redemption from the sale on the executions had been out a month and the time allowed the debtor had been out four, and when about three months’ redemption time by statute was left to redeem from the foreclosure sale, complainant sold and conveyed the east twenty-six feet of lot 40, being that portion not appropriated to the new block, for $ 1050 ; that said sale was made with the assent and approbation of Maynard and under an agreement with him to have and receive the proceeds and apply the same to the payment and redemption of the mortgage sale, there being more than enough for that purpose, and whatever should remain, to credit on the judgment debts, and that said sum was so paid and received and the mortgage thereby satisfied in fact; that complainant did not understand that any writing was necessary to show the fact of the payment and redemption of the mortgage, and did not receive any; that Maynard explained that he merely wished to realize the debts, and then agreed, as he had frequently promised, to allow complainant a year beyond the statute time to redeem from the execution sale, and that the proceeds of any part of the property complainant might sell, together with the rents, should be paid over to apply on the debts; that except a portion on'the second floor which complainant had proceeded to occupy after selling the east twenty-six feet of lot 40, the new block covering the rest of the two lots was held in separate parcels by tenants not connected in any way, and Maynard was the recipient of the rents; that the sale under the executions was irregular and void, and the reason complainant did not contest it and cause it to be set aside was the before mentioned agreement with Maynard for redemption; that Maynard received by way of rents nearly sufficient to satisfy the judgments, and that complainant has been ready and willing always, and now offers to p“ay the balance whatever it may be; that the illegality in the sale on the executions is in this, — that lot 39 and the seven feet strip off of lot 40 were sold as one parcel on one bid on all three executions for $1200, and that lot 40, from which the strip was taken, was complainant’s homestead; that Maynard has refused to carry out the agreement for redemption, and has taken deeds on the execution sale and on the foreclosure, and has conveyed lot 39 and the seven feet off of lot 40 to defendant Crocker, who purchased for defendant Mapes as well as for himself and quitclaimed to him accordingly, after having mortgaged to Hall to secure a debt both owed him; that Crocker, Mapes and Hall respectively had notice of complainant’s equities, and the two former claimed title to lot 39 and seven feet off of lot 40 under the purchase from Maynard, and threatened to expel complainant.
Although it may not be strictly necessary for the purpose of reaching a decision, still a brief reference to what we understand to be the objections against the sale on the executions will not be quite out of place. The first seems to be that, as there were three executions, it was contrary to law to offer the premises at once and under all these writs. It occurs immediately to inquire how otherwise the property should have been offered ? The judgments were all taken at the same time, and so far as there is evidence of what occurred, it seems that the executions were all issued, delivered for service and levied at the same time. The liens .arose simultaneously and no fact is indicated to entitle either to a preference in law or equity.
Clearly there was no other course open to the sheriff in the absence of an authoritative direction outside of his writs. He •could not justify himself in making any distinction, and had he assumed to sell on one alone the court must have given the same effect to it as though he had sold on all. The principle was acted on in Campbell v. Ruger 1 Cow. 215.
It is further objected that inasmuch as the law requires where executions are laid on “ several known lots, tracts or parcels,” that “ such lots, tracts or parcels shall be separately exposed for sale,” it was not lawful to sell lot 39 and the seven feet off of lot 40 as one parcel. The point has no substance. The premises were neither “ several ” or two “ known lots, tracts or parcels.” By covering lot 39 and the little adjoining strip of. lot 40 with the new building under ■the circumstances proved, the complainant as to this question converted the undivided or whole lot 39 and the fragment of lot 40 into an entirety and caused it to be one “ known parcel ” instead of two. It would have been absurd to treat this ■strip of seven feet in width and encumbered by the side of the new block as a separate and distinct parcel for the purpose of levy and sale. A leading object of the statute is to ■secure the best price attainable, and nothing could be much better adapted to defeat it than such a construction and application as this objection implies/
The last point is that the sale of this strip off of lot 40 was wrong because lot 40 was complainant’s homestead. The fact necessarily involved is not true. The strip in question, i whatever may have been the character of the whole lot originally, was not a homestead or parcel of one. It was severed from the remaining twenty-six feet of the lot by the voluntary act of complainant. He retained his place of dwelling ■on the rest of the lot, and deliberately appropriated the seven feet to something else. lie devoted it to a foreign use. He-caused it to become incorporated with the territory platted as lot 39 in order to sustain a business block, and deprived it of every badge and quality of a homestead property. In fine, he “ selected ” as his homestead, and held in occupancy as-his homestead, if any place, the remaining twenty-six fe.et of lot 40, and “ selected ” this strip to be not held or “ occupied ” as a homestead or as a parcel of one.
It has been observed that the bill makes no complaint of' the mortgage and contains no averment against the validity of the sale on foreclosure or of any of the-proceedings. The-sufficiency of the foreclosure to carry a good title is virtually conceded. The position is that the proceedings were prevented from ripening into a perfect title in Maynard by the fact of payment and substantial satisfaction of the mortgage-on the 12th of April, 1870, and about three months before the expiration of the time allowed for redemption, and this is the central fact and essential equity in complainant’s case. The mortgage was executed by both complainant and his wife in 1867, before the building was put up, and on both lot 39 and lot 40. If in fact it was not paid, the case fails. •No foundation l’emains on any possible theory of the bill. A perfect title followed, and the controversy about the sale on the executions, is, for the purpose of the present case, of no-importance.
The important inquiry, therefore, is whether the evidence sustains the complainant in regard to this pivotal fact in the case made by his bill. There is substantial agreement in the-testimony that complainant on the 12th of April, 1870, conveyed the east twenty-six feet of lot 40 for $1050 with the-approbation of Maynai’d, and that the proceeds in money and short-time securities went immediately into Maynard’s hands. That he gave the buyers his written undertaking to release this purchase from the mortgage on their paying those securities on or before July first is well proved ; and the fact is also established that on their completing the pa}'ment some few weeks later than the time fixed, he did release by giving them his quit-claim deed.
Tlic evidence agrees tliat as part of the transaction on the 12th of April there was an understanding between Maynard and complainant that the former should have the rents of the new block and apply them on the remaining indebtedness, and it seems that something was afterwards received by him from this source, but exactly how much is left uncertain. Maynard claims that the amount was small, and-complainant admits'it was much less than what remained of his indebtedness.
But the disagreement is absolute in regard to what application of the $1050 was agreed on. Complainant swears positively that this was raised by sale of the twenty-six feet of lot 40 and paid to Maynard and received by him in satisfaction of the mortgage debt and redemption from the foreclosure, arid that there was an excess of $72 or $73 which was agreed to be applied on the judgment debts, and that the whole transaction, except the conveyance of the twenty-six feet, was oral, -and that he, complainant, received no writing whatever in regard to it. To some extent the complainant is corroborated. But the'proof is clearly against him and a single item from one of his witnesses lets in some light concerning the likelihood of his being mistaken. In consequence of liquor he was not always in a condition to justify confidence in his attention or his memory.
Maynard swears that the proceeds of the sale of the twenty- ■ six feet of lot 40 were not received on the mortgage, but on the judgment indebtedness, and that the agreement was that they should be so applied; that only $600 of the $1050 was received on the 12th of April, the residue not being realized until later, and that he gave complainant on that day his written engagement to apply the amount then received, $600, on the judgment indebtedness. The evidence supports this explanation. The legal time for redeeming against the execution sale had already expired and it is probable that complainant was trying to rescue the property from that sale rather than from the ether on which there still remained three months, and if the arrangement had been as complainant now thinks, that the mortgage was considered satisfied, the purchasers of the twenty-six feet of lot 40, who were concerned in the transaction, could have had no very sensible reason for insisting, as they did insist, on a release from Maynard as a condition. The mortgage being out of the way, Maynard had no claim on tne twenty-six feet.
As already stated, the main fact of complainant’s case, that the mortgage was paid, is actually disproved, and the effect of the evidence is that nothing was ever received applicable to it, and that Maynard never intended to open the foreclosure unless on payment. The judgments were given May 9, 1868, and the damages aggregated, after correction of one of the judgments by striking off $100 which had been included by mistake, the sum of $1177.03, and computing interest at seven per cent, to the 12th of April, 1870, when the homestead property was sold, the sum at that time was $1335.62. Deducting the proceeds of that sale, there still remained $285.62 exclusive of the taxed costs, which were $57. If the sum at which the property was struck off on the execution sale is taken as a basis, the difference is small. The sale was December 28, 1868, and the price $1200. On April 12, 1870, it amounted, with interest at seven per cent., to $1309.50, and deducting the price obtained for the homestead there would yet remain $259.50.
"Without stopping to notice the theory of complainant’s pleading or the shape of his case as marked out by his oath, the weight of evidence determined that the arrangement or understanding between complainant and Maynard, whatever was its precise character, was terminated in the fall of 1870, and that the whole amount which had been received at that time was considerably less than the judgment debts whether we consider the damages and interest, or the price bid on the execution sale and interest, as the equivalent of the debts, and that although the mortgage debt was accumulating interest at ten per cent., no surplus arose out of the transactions referred to, to be applied upon it.
I am of opinion that the decree dismissing the bill cannot be rightly disturbed and should be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Plaintiffs in error were originally joined with Benton Iianchett and Charles Y. De Land in a suit upon two acceptances given in September and October, 1876, and maturing in November, 1876, at the end of the' month. These were given in the name of the Saginaw. Publishing Company, by B. L. Ransford, business manager;
All the defendants joined in one plea, and subsequently their attorney, Mr. Wisner, made a stipulation, June, 1878, followed by an order-in September, 1878, for the discontinuance of the cause as against Mr. Iianchett, and by an agreement a discontinuance was agreed to against Mr. De Land on the trial in April, 1880. We do not think that these parties could object to any proceedings against themselves as improper after such a course in which they acquiesced. They cannot now rely on a non-joinder, when they have practically consented to it.
The controversy on the merits refers to ’ the identity of these parties with the Saginaw Publishing Company. Plaintiffs, who are paper dealers, made an arrangement, through Mr. Boyd, their agent, to furnish paper at 30 and 60 days for a daily newspaper published in the name of that company. The original arrangement was made by B. L. Ransford, wdio was admitted to have been the business manager. Boyd was informed by Ransford that plaintiffs in error were the comjjany, and sold on their credit. He had no personal interviews with any one else but De Land, who was owner of the printing office, but had given .the use of it to the persons, whoever they were, that conducted the paper.
The testimony showed that these parties were appointed a committee to manage the paper in some way. It is claimed the testimony failed to show their business connection with it. As a good deal of the testimony is circumstantial, there is some difficulty in determining how far it is legally deficient, and this can only be got at by comparison.
Hansford was not sworn, and only Draper of the defendants testified. Plaintiffs below introduced one Palmer, who showed very clearly that he understood he himself was employed on the paper in behalf of the committee, and that his employment was vei’y closely connected with their meeting, and that Mr. Do Land attended the meeting and reported to him.
This witness testified to knowing all the parties; to seeing them about the office more or less ; to seeing them come to the meeting, a report of whose doings was given him bv Messrs. De Land and Hansford; to the commencement of the daily publication immediately thereafter in accordance with that report; that witness was employed to do the job work, as he understood, for them, — and subsequently succeeded Hansford in November, when he was discharged or left.
Thus far the testimony was all pertinent and required only some proof of the privity in fact of the committee with the paper. Before closing their case plaintiffs below introduced a letter from Palmer written November 18th, just after the first acceptance became due and about a fortnight before the maturity of the second. This letter was written while he was in charge after Hansford’s removal, and explains the delay as owing to Hansford’s carelessness which had left the business in confusion. It assured plaintiffs that the gentlemen composing the company were men of position and wealth, and that their standing could be learned of the banks. Tn s letter was objected to, but we think it was admissible and shown to be within Palmer’s authority. It mentions no names, however, and required the identification of the com- ' pany.
In addition to this a document was produced published in the paper on the 26th of November, purporting to be signed by plaintiffs in error, and giving a history of the enterprise from its beginning in the previous August. It very clearly purports to show the identity of the signers with the management of the paper, and if traced to them would fix their liability. It was objected to as inadmissible, but we think it was evidence of the declarations and professions of the company, and would be helped out by testimony connecting the parties named. The question is whether this connecting testimony appears. It is certainly not without difficulty. The subsequent testimony of Mr. Draper throws some light on it, and will be presently referred to.
It appears positively from Mr. De Land’s testimony that these gentlemen were appointed by a meeting of subscribers to act as a committee for some purpose in the application of the subscriptions, and it appears they were the only committee. There was conflicting testimony concerning Mr. Hans-ford, but there was testimony fairly tending to show that he was not acting for himself. Palmer was employed in the manner before referred to, and if he is to be believed, the paper had no managers, or else it had some committee whom he supposed and represented to be his employers. As business manager, he at least set forth to the world in its columns the manifesto of these gentlemen as his principals.
The defendants, through their witness De Land, introduced the proposal which he made for permitting the use of his office, which he testified contained his part of the arrangement. This paper on its face is an offer in accordance with a proposal made by him to the meeting. It is claimed to show that Hansford was intended to be not only manager, but responsible for everything. It is not, however, a proposal to which Mr. Hansford was on its face to be a party, and was addressed to some persons representing the subscribers. His connection with it was one of the questions before the jury.
Mr. Draper’s testimony shows that he did not understand the committee had any charge or responsibility for the paper, or for anything but collecting and paying over auxiliary funds; but it also shows that they were expected by the subscribers to see that Colonel De Land was not allowed to have any editorial articles of his own inserted (there being a difference of views with him), and he also testifies in general terms to the correctness of the statements of the article of November 20, 1876.
It seems to us that all of these things taken together left enough facts to go to the jury, and that whatever may have been the views of these gentlemen as to their own legal position, there was enough to put the whole case before that body. If so, the court was right in refusing to take the case into its own control and away from the jury.
The objections to some of the testimony have already been referred to. There were several which rest on similar grounds, as to the statements made by various persons. None of these were received as admissions binding any one else, but merely as facts and circumstances forming part of the res gestae. As such they were proper.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
The parties contracted as in the margin con- corning the sale of cedar posts and telegraph poles and on ocd&sion of the first shipments Bolton and McRae caused the posts to be inspected by a disinterested person as they were put on board. But Brownlee claimed that their agreement with the contract must be settled by inspection at the place or places of destination, and he threw out a large number as culls, and made a charge for their handling and dock-age. Bolton and McRae asserted that the place of shipment was the place of acceptance, and that they would not submit to have the inspecting for acceptance transferred to whatever points Brownlee might select for their destination; 'and they proposed that if Brownlee would concur in the choice of an inspector at the point of shipment they would pay half the expense. But their offer was refused and Brownlee stopped sending vessels, and the contract was not carried out. After several years and in 1876 Bolton and McRae brought this action on the contract to recover damages for Brownlee’s alleged refusal to provide vessels and accept and pay for the posts.
The substantial defense before the jury was that the further prosecution of the contract was given up and abandoned by mutual consent, but this was negatived by the finding. The court decided that the contract contemplated that all inspection for the purpose of complete acceptance should be at or before delivery and reception on board, and did 'not intend that it might be made at such distant or indefinite points as Brownlee might make the place or places of destination, and this is the right construction. There was no legitimate evidence of custom to influence the question, and if there had been it cannot be assumed that the terms of the contract would have authorized it; and so far as conduct and correspondence go, there is no implication, on any fair view of it, that Bolton and McRae understood the arrangement to be as claimed by Brownlee, or intended to waive the application of their construction to future deliveries.
The cause of action insisted on was exclusive of the telegraph poles and of the posts actually shipped. Bolton testified that in the fall of 1874 or 1875 they sold to Montgomery of Detroit the posts Brownlee had failed to take, and that the net proceeds were 4f cents each. No other witness testified concerning this sale, and whether it was public or private was not explained. There was no evidence of the actual condition the posts were in at that sale, nor any evidence of their condition then as compared with what it was in the summer of 1872. Bolton was asked on cross-examination what terms were made with Montgomery about the length, diameter and soundness, but the inquiry was excluded on objection. It was not shown that any notice of sale to Brownlee was given or attempted, or that the circumstances of the transaction were such as to create a probability that the price obtained was a fair one. Bolton was allowed to state the value of posts after the first of July in 1872, but Comstock, a witness produced by Brownlee, was for some reason which is not apparent, not allowed to do so. The jury were charged that in case of finding Bolton and McRae were entitled to recover, the measure of damage would be the difference between the contract price and the price obtained on the resale. The substantial effect of this instruction was to require the jury, in case of their being satisfied 'that Bolton and McRae ought to recover, to accept Bolton’s account and regard the price so stated as having been obtained at the sale made from two to three years after the transaction, as conclusive of the depreciation of the posts in value from the contract price, and as deciding how much Bolton and McRae might compel Brownlee to pay on account of his failure of performance in 1872.
The instruction was not authorized by the evidence. At the outset it was material to inquire whether the expedient of a resale, in view of the circumstances, was within a reasonable time. But apart from this the case was barren of facts to afford any ground for argument that the real condition and the steps taken were such that in justice the price could be held binding on the interest of Brownlee. The state of facts in the record did not permit the application of the doctrine of resale, and there is no occasion for a particular examination of it. It is now sufficient to say generally that the vendor’s right of' resale must be exercised in good faith and in such time and manner and under such circumstances and by such methods as will be best calculated to produce the fair value of the property, and that in case he seeks to avail himself of it before a jury it is incumbent on him to adduce the necessary facts to show that in exercising the right this manner was observed. Of course the plaintiff in error might have acquiesced in the rule given by the court, but he did not, and the question is what ruling should have been made.
The answer is plain. The law on the subject is well settled. In the first place, evidence should have been admitted to explain the condition of the property and its market value at the place or places of shipment on the first day of July, 1872, and the jury should have been told that the general measure of damage was the difference between the contract price and the price on board according to market value on the first of July, 1872, at the contract place or places where the posts were in readiness to be tendered. There was no room for any rule more favorable to defendants in error. Cahen v. Platt 69 N. Y. 348.
According to the agreement, in case Brownlee failed to provide vessels before July first he was bound to pay at that time for whatever posts remained unshipped, and Bolton and McRae were still to put them on board. The time was hence fixed for full payment whether vessels were or were not provided by Brownlee, and as Bolton and McRae elected to hold the posts to preserve their right as unpaid sellers, and did not elect to hold them for delivery to Brownlee as he might require it, the time when default in payment occurred was the proper one for getting at the difference between the contract price and the market price on board. No further observations are necessary.
The judgment must be affirmed with costs and a new trial granted.
The other Justices concurred.
Tliis agreement, made this fourth day of August, 1871, by and between Bolton & "McRae, of Alpena, Alpena county, Michigan, of the first part, and William Brownlee, of Detroit, Michigan, of the second part, witnesseth as follows, to wit: the said party of the first part agrees to deliver on rail of vessels furnished by the party of the second part one hundred thousand cedar posts at Nine-mile Point, and at oilier places suitable for loading, for the sum of eight cents each, the first cargo to be delivered within fifteen days after the opening of navigation, 1872, and the balance to be ready by the first of July, 1872. And the said party of the second part agrees to furnish vessels, and to have them all shipped by the first day of July, 1872; and the said party agrees to pay for them on delivery; and if said party fails to furnish vessels before the first day of July, 1872, he will pay for those unshipped, said party of the first part to deliver them on the rail as aforesaid, and also agrees to give all vessels good dispatch. And the said posts are to be seven and one-half feet long and four and one-half inches and upwards at the small end in diameter, good, sound, merchantable timber. And the said party of the first part will get out what telegraph poles they can, twenty-five and thirty feet long (25 and 30 feet), and five inches through at the top end; to be sound, live timber, peeled and well trimmed and straight; and the said party of the second part agrees to pay for same telegraph poles the sum of forty-five cents each, to be one-half thirty feet long. And (if) the said party of the first part, if possible, shall cut all posts over eight inches through, four and one-half {4$) feet long, these to be perfectly sound, for the sum of eight (8) cents each; all of the above to be delivered on the rail of vessels as aforesaid.
In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written.
Bolton & McRae.
William Brownlee.
Witness: A. W. Smith. ' | [
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Moore, J.
This is a sworn bill of complaint filed for the purpose of having a deed made by complainant to defendant set aside. From a decree dismissing the bill of complaint the case is brought here by appeal.
The parties were married in January, 1900. The complainant was in possession of 115 acres of land under a land contract. This land was deeded to him in 1901, subject to a mortgage of $2,700, and a claim of $265. After the marriage the parties lived upon this land. Later they lived in Webberville, then in Williamston, where they lived until April, 1906, when they removed to Lansing, where they were living at the time defendant left complainant. While living at Webberville in 1905, complainant for about three weeks was in the insane asylum at Kalamazoo. He was discharged because he was regarded as cured.
The substance of the stating part of the bill of complaint is as follows:
“Your orator further shows unto the court that up to and for some time previous to the middle of March, A. D. 1907, said defendant insisted and prevailed upon your orator to convey by deed the above-described lands to said defendant. That your orator thereupon told said defendant that the lands remaining in his name as they then were would be of as much benefit to her as they would if they were deeded to her in her name, that they were for the benefit of both, and that it would serve no beneficial or substantial purpose to convey from your orator said lands unto said defendant, but notwithstanding your orator’s explanation in this regard said defendant still insisted that your orator convey the same by deed unto her, she assigning as a reason for your orator deeding and conveying said lands to her that your orator might again in the near future become' mentally unbalanced, and while in that condition he might make some deal or bargain with reference to said lands not in keeping with strict business principles as practiced and performed by so-called business men, and that, if he continued rational, she would in the course of a short time deed and convey the same back to your orator. That she would be more at ease and more satisfied if he would convey said lands to her as aforesaid; finally, for the purpose of gratifying said defendant and putting her mind at ease, your orator did on or about the 12th day of March, A. D. 1907, convey lands by deed unto said defendant and without consideration of any value from said defendant to your orator, your orator thinking when he so deeded to her that he was gratifying said defendant’s wishes and that it would make no material or substantial difference to him or to her, as he then expected and well hoped and supposed and assumed that your orator and said defendant were to continue to live together in a pleasant and peaceable manner, as is becoming a husband and wife, and that the benefits and enjoyments derived from said lands were to be shared and enjoyed by and between the parties hereto, and that in the course of a few weeks said defendant would become satisfied of the permanent rationality of your orator and redeed said lands back to your orator.
“Your orator further represents unto the court that immediately after the conveyance by deed of the said lands by your orator unto said defendant as aforesaid, sbe, the defendant, represented and pretended that she desired to go to visit her relatives living near the village of Williamston and while there to take some medical treatment of a local physician in the village of Williamston, and that she would return home in the course of a few days thereafter; whereupon said defendant did go to her relatives near the village of Williamston as aforesaid, but has never returned to live with your orator as your orator expected and well hoped she would do. That your orator, after waiting for a period of about nine days from the time she so went away on said visit as aforesaid, went down to where she was staying near the village of Williamston to see what was the cause of her staying away from their home so long without informing your orator, and when he thus went and saw her she then told him for the first time that she was not intending and did not intend to live with him any longer, and that she was not coming back to him nor to his home in the city of Lansing, where they were living at the time she so went away as aforesaid. Your orator then told her that he could not understand why she so refused to live with him and why she would not return with him to his home in the said city of Lansing, whereupon she told your orator that she absolutely refused to live with him longer, and that since she had procured the deed and conveyance of the said lands it suited her far better to leave him and live separate and apart from him. That your orator prevailed upon and used all reasonable persuasion to have said defendant return to his home and live with him as his wife, but that, on the contrary, she absolutely and wilfully refused so to do, and still wilfully refuses to return and live with your orator.
“ That at the time said defendant was persuading your orator to deed and convey said lands to her, your orator believed that said defendant was bona fide and in good faith in her representations to your orator, and that her purpose was honest, and that she intended to live with him as his wife, and that she would redeed to your orator the above-mentioned lands as she had promised your orator to do, but, on the contrary thereof, the defendant at the time she so persuaded your ■ orator to convey said lands to her was not in good faith, and her representations to your orator were not bona fide and honest in that regard, and she did not intend to live with your orator as his wife at any time after she was able to procure a deed and conveyance of said lands, but wantonly and fraudulently did she represent and pretend to your orator that she was apprehensive as to his mental condition, and was wanton and fraudulent in conducting herself in a manner to lead your orator to believe that she intended to live with him, and was wanton and fraudulent in procuring the deed and conveyance of the said lands unto herself, and that when she procured said deed and conveyance unto herself as aforesaid, and during the time that she was persuading your orator to deed the same, she was not intending and did not intend to live with your orator, in the event that she was successful in procuring a deed and conveyance unto herself of the lands as above set forth. That the said lands were all the property that your orator owns, and is the only property that he has on earth.”
Defendant answered the bill of complaint. Among other things stated in the answer is the following:
“She denies she' insisted or otherwise persuaded said complainant to convey the land to her. That for reasons unknown to this defendant at the time of said conveyance, said complainant was extremely anxious to make a conveyance to this defendant. That she did not become aware of his reasons for making said conveyance until after the deed was actually drawn, executed, and delivered, after which said complainant said he conveyed the land to her for the express purpose of defeating his creditors. And then said: ‘Now they can all go to hell,’ that he would not pay any of them anything. This defendant alleges the truth to be that said complainant was a poor manager, unthrifty, and a person constantly in debt. That she fears, believes, has good reason to believe, and therefore charges the truth to be, that if he had not conveyed said premises to this defendant he would háve had nothing. She denies that she ever promised to reconvey the land to said complainant. She denies that she told said complainant that it made no material or substantial difference to him or to her in the event that he made said conveyance to her; (But she avers that she did not, at the time of said conveyance, know of any reason why it should make any material difference between them.) She admits that shortly after the conveyance of said land to her she told said complainant that ‘ she desired to go to visit her relatives living near the village of Williamston, and while there to take some medical treatment of a local physician in the village of Williamston;’ that she expected to return to her home shortly after her departure» from the said city of Lansing.
“She avers and alleges the truth to be that she was not, at the time she was residing in the city of Lansing, and up to the time that she started to the village of Williamston to consult the local physician there, aware of her true condition. That she learned upon her consulting with her physician at Williamston that she was suffering from a most loathsome venereal disease. That after she learned of her true condition and knowing that she contracted said disease from said complainant, and then knowing that said complainant had a loathsome disease, she then refused and has always steadfastly refused from such time to return to the city of Lansing and live or cohabit with said complainant. She admits that she informed said complainant that she did not intend to live with him any longer. This defendant denies that she refused to tell defendant why she would not live with him longer. She avers the truth to be that she did tell him that she had contracted a venereal disease from him; that because of his diseased condition, and because she had contracted the said disease from him, she would not live with him longer.
“ She denies that at the time she received said deed as aforesaid, that she had formed any intention to quit said complainant or not live with him. She denies that she ever told said defondant that because of his mental condition she was afraid that he would be unable to take care of said property, or by reason thereof she wished a conveyance to herself.”
The case was put at issue by proper pleadings and was heard in open court. The circuit judge filed a written opinion in which he stated that he could not find that the deed was procured by fraud or undue influence. At the time the deed was made complainant was about 39 years of age, and defendant was 12 years younger. There is no claim that his mind at that time was clouded. There is nothing in the record to show that he did not understand fully the legal effect of executing and delivering the deed. There were three children born to the parties, two of whom died in infancy. The oldest one is now upwards of nine years of age.
We agree with the learned circuit judge that complainant has failed to establish that the deed was procured by either fraud or undue influence. We also think he has failed to show that there was an agreement to reconvey the property to him. We are satisfied that defendant expected to continue to live with complainant when the deed was made, bub it is equally clear that she did not know at that time that complainant had a loathsome disease which he communicated to her. We are satisfied, also, that the cause of defendant’s going home was because she was ill, and that she first learned from her family physician that she, too, had a loathsome disease, well advanced. She testified this disease was contracted from the complainant, and that it was because of this fact that she refused to return to him. We think she testified to the truth in this regard. Complainant has himself to blame for the failure of defendant to return to him, and to continue in her relationship as his wife.
The trial judge made a proper decree under Jackson v. Cleveland, 15 Mich. 94 (90 Am. Dec. 266), and Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941). See, also, Draper v. Brown, 153 Mich., at page 133 (117 N. W. 213).
The decree is affirmed, with costs.
Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred. | [
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Hooker, J.
In September, 1908, Fitch D. Cooper committed suicide, first shooting and killing his wife. By a former wife he had three children and by his second wife four. All survived him. At the time of his death he was in possession of both real and personal property. In June, 1908, he caused to be drawn a deed of substantially all of his real estate, and a bill of sale of his personal property, to his two sons, Herbert and Earl, aged respectively 17 and 15 years, sons of his second wife, omitting any provision for their sisters, Minnie, aged 19, and Velma, aged 10 years, except a fraternal policy of $2,000, which was payable to the children of the second marriage. The property covered by the deed and bill of sale amounted to about $18,000. On his way home from the scrivener he stopped at the home of a friend, one William Mines, and handed him an envelope, sealed, and said:
“ Keep those papers until the boys call for them.”
The names “ Herbert ” and “ Earl ” were upon the envelope. After the suicide the sheriff found and delivered a letter addressed to Mines:
“I wish you would take those papers and have them recorded immediately. By doing so you will gyeatly oblige.”
Mines did as requested — i. e., caused the deeds to be recorded. All of the other children by both marriages joined in this suit against Herbert and Earl, to cancel the instruments. The court found that Cooper was not incompetent, but that the instruments were never delivered. A decree was made in accordance with the prayer of the bill.
An appeal was taken in accordance with the following stipulation:
“ In this cause all parties desiring to appeal upon the whole record, and desiring to save expense, it is agreed that but one appeal shall be made, which shall be considered as the appeal of all the parties, and shall take up the entire record for consideration. The complainants to pay one-half of the costs of the stenographer’s minutes and of printing the record, and of the clerk of the Supreme Court; that there shall be no costs in the Supreme Court except solicitor fees and for printing briefs, and that said cause may be considered by the Supreme Court as though both parties had separately appealed.
“Dated January 15, 1910.”
Incompetency. We have examined the testimony relating to the grantor’s mental condition at the time he made the deeds, and conclude that the charge of incompetency is not sustained. In this we are in accord with the learned circuit judge who heard the testimony from the lips of the witnesses. On the surface it would seem that the action of the grantor was unwise and unnatural, but he had, and expressed, a reason for it, which was sufficient in his opinion, and which shows that he considered and settled the question according to his judgment, such as it was. This clearly appears, in contradistinction to a condition of mind preventing his mental ability to understand, and ability to resist a delusion.
Delivery of the Deeds. The testimony regarding the deposit of the deeds is, in a nutshell: After executing them, he placed them in an envelope indorsed with the names of the grantees, and left it with a friend with the direction:
“ Keep those papers until the boys call for them.”
This instruction was sufficient in itself to create a presumption that he intended his act to be irrevocable. We have .many cases that hold that such a delivery conveys a present interest to the grantees, and conveys full title on the delivery as directed.
In the early case of Hosley v. Holmes, 27 Mich. 416, we held:
“A delivery of a deed to a third person for the benefit of the grantee, in the absence of anything conveying a different intent, is as much a delivery as if made to the grantee himself; and when papers show upon their face that they are intended to take effect and operate from their execution, it will not be presumed that their delivery to a third person, to be afterwards delivered to the parties, was merely as an escrow, and that they were not to take effect until such subsequent delivery.”
See note to this case. Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178); Wallace v. Harris, 32 Mich. 380, and note; Thatcher v. St. Andrew’s Church, 37 Mich. 264, and note; Latham v. Udell, 38 Mich. 238; Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291).
In Pennington v. Pennington, 75 Mich. 600 (42 N. W. 985), it was held that—
“Until a deed is delivered to a grantee to become presently operative, the grantor retains the right to recall it.”
But in that case it was found that the deed was deposited for safekeeping, and therefore was not beyond recall. Hitchcock v. Simpkins, 99 Mich. 198 (58 N. W. 47), was a case bearing upon the question of the conveyance of a present interest, as, also, is the case of Culy v. Upham, 135 Mich. 131 (97 N. W. 405, 106 Am. St. Rep. 388). Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640), Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201), and Roup v. Roup, 136 Mich. 385 (99 N. W. 389), recognized the doctrine, but turned on the question of fact as to intent, and the same may be said of Cole v. Cole, 144 Mich. 676 (108 N. W. 101); Leonard v. Leonard, 145 Mich. 566 (108 N. W. 985), and Young v. Young, 157 Mich. 80 (121 N. W. 264).
The direction in this case was unequivocal and contained no indication of an intention to retain a control of the deeds. The letter found upon the person of the grantor was not inconsistent with an irrevocable deposit. It was but a later direction to deliver to the boys at once, in another way, without waiting for them to call for the deeds. The. will, made some time before, made other provisions, but the conveyancer who drew the deeds gave testimony accounting for his change of mind, and showing that he did. not overlook the necessities of his younger children, and his duty toward them. We may question his judgment in this matter, but that will not justify setting aside his action, and it is possible that he knew the situation and exigency best. It is a question of intent, and we are unable to find circumstances overcoming the presumption arising from his act and instruction.
The question is whether it can be said that the delivery was such as to convey a present interest. The subject is considered and numerous authorities cited in an exhaustive note to the case of Munro v. Bowles, 187 Ill. 346 (58 N. E. 331, 54 L. R. A. 865).
Homestead. At the time these deeds were made the premises described therein were occupied as a homestead. The bill alleges that the N. E. £ of section 10 (160 acres) was the homestead of Cooper and his wife at the time the deeds were made. They certainly lived there and apparently had no other land. It is contended that the husband had not selected a homestead, and that none can be selected for him now. At the time these deeds were made these parties resided on these premises. The wife might assert a homestead right, and this did not depend on her husband’s selection before that time. His attempt to convey it was futile, and the deeds were void as to such interest, and they could not afterwards be made valid by the death of one or both. The title to the homestead remained in the husband. Wallace v. Harris, 32 Mich. 380; Stevenson v. Jackson, 40 Mich. 702. This homestead involved an undefined tract, and the value is limited to $1,500. Complainants’ rights can be protected however. See Beecher v. Baldy, 7 Mich. 488; Dye v. Mann, 10 Mich. 291; Wallace v. Harris, supra; Stevenson v. Jackson, 40 Mich. 702. To this extent the deed must be canceled.
We do not lose sight of the case of Sammon v. Wood, 107 Mich. 510 (65 N. W. 529), where it was said that—
“It may be impossible to locate it (the homestead), and in such ease the title (i. e., deed) to the entire farm must fail.”
If this was more than a dictum, it does not appear whether the subsequent proceedings involved the carrying out of that suggestion. In any event, we doubt the propriety of applying such a rule here. That statement is based on Engle v. White, 104 Mich. 15 (62 N. W. 154), and that in turn upon Phillips v. Stauch, 20 Mich. 369, and Hall v. Loomis, 63 Mich. 709 (30 N. W. 374), all of which were cases where the right to specific performance only was denied. See Walker v. Kelly, 91 Mich. 217 (51 N. W. 934), where specific performance was enforced in a somewhat similar case.
We are unable upon this record to ascertain the situation of the estate, or who 'is entitled to the homestead or its value, in view of the will that has already been admitted to probate. We therefore direct a decree of cancellation so far as the homestead interest is concerned, only denying relief as to the remainder of the premises. The complainants will recover costs. This is without prejudice to such further proceedings in this court or cause, or any other proper tribunal, if any, by the complainants, as may be proper to determine and enforce their rights to such portion of said homestead interest as they may be entitled to.
Ostrander, Moore, McAlvay, and Brooke, JJ., concurred. | [
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Bibd, C. J.
This is an application for a writ of mandamus to compel the respondent, the common council of the village of Cedar Springs, to approve the liquor bond of relator, Orín Lake. The sole question raised by relator’s brief is whether subdivision 7 of section 2769 of the Compiled Laws of 1897, which gives villages the power to suppress saloons for the sale of spirituous and intoxicating liquors, was repealed by Act No. 291 of the Public Acts of 1909. The relator filed his application for a license with the respondent on March 23, 1910. The council on April 11th passed an ordinance suppressing saloons for the sale of spirituous and intoxicating liquors in the village, and provided it should take effect on May 1, 1910. The council refused to act upon relator’s application and now relies on the ordinance as a defense to this proceeding.
It is the contention of the relator that, upon the taking effect of Act No. 291, it repealed by implication subdivision 7 of section 2769; and that the power given villages by this subdivision is so repugnant to, and inconsistent with, Act No. 291, that both cannot stand, and that, as Act No. 291 was the last expression of the legislature, it must prevail.
The village of Cedar Springs was incorporated under Act No. 3 of the Public Acts of 1895, providing for the incorporation of villages, and, among other powers conferred upon villages by this act, was the power, under subdivision 7, “to suppress saloons for the sale of intoxicating liquor and license taverns and eating houses.” It is well settled in this State that repeals by implication are not favored, and that the question of repeal is largely one of intent, and if the two statutes can stand, and both have effect, they must be allowed to do so. People v. Gustin, 57 Mich. 407 (24 N. W. 156).
The title to Act No. 291 of the Public Acts of 1909 is:
“An act to provide for the taxation, licensing and regulation' of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors and malt, brewed, or fermented liquors and vinous liquors in this State, and to repeal all acts or parts of acts inconsistent with the provisions of this act.”
It will be observed that the object of this law is to tax, regulate, and license, while the power conferred upon villages is “to suppress.” A law whose object is to tax, regulate, and license would not seem to be inconsistent with one giving the power “to suppress.” It would hardly be contended that under Act No. 291 saloons could be suppressed except as incidental to its enforcement, or that under the village act the business could be taxed, regulated, or licensed.
It has been the law of the State for many years to permit the electorate of counties to prohibit the sale of intoxicating liquors and to permit villages, through their common councils, to suppress saloons for the sale of intoxicating liquors. Whenever the county or village has not seen fit to exercise this power, the business has been taxed and regulated by the general liquor laws of the State. ; These laws have been administered side by side for nearly \ 15 years with little or no difficulty on account of repug- ' nancy or inconsistency. But it is said by relator that" the amendments of 1909 to the general liquor law have made it so inconsistent with the subdivision 7 that both cannot stand. The cardinal feature which the amend- . ments of 1909 have ingrafted on the general liquor laws is ' the license feature, and counsel argue that in adding this feature it was intended by the legislature to provide for the uniform license system throughout the State. Coun- ' sel is quite right in this conclusion; but how does the . added license feature make it any more difficult to administer side by side with the village law than before the amendments were added? The legislature of 1887 intended to and did make the general liquor laws passed in that year a uniform rule throughout the State as to taxation and regulation, and adding the license feature of 1909 does not increase or extend its uniformity.
Counsel cite the case of People v. Furman, 85 Mich. 110 (48 N. W. 169), to sustain their position. In that case the city of Adrian attempted to regulate by ordinance the closing of saloons on Sundays. This court held that the general liquor laws of 1887 covered the whole field of regulation, and that the ordinance was in conflict therewith, and therefore invalid. In other words, the council of the city of Adrian was attempting to regulate by ordinance that which the legislature had provided for by general law. No such attempt has been made by respondent. It has not invaded the field of regulation, taxation, nor license. It has simply exercised its power to suppress.
Has the legislature evinced any intention to repeal subdivision 7 by recent legislation ? We have not been able to discover any, and none has been called to our attention. At the same session at which Act No. 291 was passed, Act No. 278 was also passed, and both acts were signed upon the same day, and the latter act validated all of the general and special charter provisions of villages in the following language:
“All villages within the State of Michigan heretofore incorporated by any general or special act of the legislature, shall continue their corporate character as such villages and any and all general or special charter provisions for the government of such villages shall continue in force until superseded, amended, or repealed, in accordance with the provisions of this act.”
And by the terms of Act No. 278, which provides for the reincorporation of villages, the same power was again conferred upon villages that is contained in subdivision 7. This legislation clearly makes against the contention that the legislature intended, by passing Act No. 291, to deprive villages of the power to suppress saloons for the sale of intoxicating liquors.
Finding nothing in the language of Act No. 291 which would make it repugnant to, or inconsistent with, subdivision 7, and being unable to see any intent upon the part of the legislature to repeal subdivision 7, we are disposed to hold that Act No. 291 did not, by implication, repeal subdivision 7.
The order of the circuit court denying the prayer of relator’s petition is affirmed.
Ostrander, Hooker, Moore, and McAlvay, JJ., concurred. | [
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Moore, J.
Albert H. Vohlers,.for some time prior to December 27,1907, kept a liquor saloon in Grand Rapids, and owned and had therein a stock of liquors and other things, the ordinary outfit of a liquor saloon, except the bar fixtures and certain furniture, which belonged to the Schlitz Brewing Company and which are not involved in this cause. On September 30, 1907, Mr. McGann became the accommodation indorser for Mr. Yohlers on a promissory note for $150, payable to and at the National City Bank of Grand Rapids, due in 90 days. On December 27,1907, Mr. Yohlers sold to Mr. Porter for a consideration, stated to be $750, all the goods and chattels in the saloon, except the bar fixtures and furniture belonging to the Schlitz Brewing Company. Mr. Yohlers did not pay the note, and Mr. McGann paid it within a day or two after it was due. On April 18, 1908, by writ of attachment from the superior court of ' Grand Rapids, duly issued, Mr. McGann attached the gpods and chattels in question. Mr. Porter immediately replevined them from the deputy sheriff, Goudzwaard, before they were removed under the attachment. Upon the trial a verdict was directed in favor of the defendant.
The case involves a construction of Act No. 223 of the Public Acts of 1905, known as the “Sales in Bulk Act.” It is conceded that the provisions of the act were not followed. The only question involved is the matter of an alleged estoppel as against Mr. McGann, the actual, but not the nominal, defendant.
The claim of estoppel is based upon the testimony of Mr. Porter, the material parts of which are as follows:
“At the time this sale was made and the money paid, Dave McGann was present and I showed him the money; he saw me pay the money to Mr. Yohlers. He sat right in a chair by the table, about 20 or 30 feet from where I paid it.
“Q. When you paid the money to Yohlers what did McGann say to you about Yohlers owing him, and about Yohlers coming down there to settle, if anything?
■ “A. He said, — he asked Yohlers for the money, and he {Yohlers) said he would be down and settle with him at two o’clock, and he said ‘all right,’ and went away.
“Q. Was that the first time you knew he owed Mr. Yohlers ?
“A. That was the first time I knew that he owed him .a cent; I made a satisfactory arrangement with all the persons named in the affidavit. I didn’t owe Mr. McGann .anything at the time the attachment was issued.”
On the cross-examination he testified:
“ I paid the money to Mr. Yohlers on the 27th day of December. I don’t know that I did — not positively. The bill of sale is dated on the 27th day of December. I think that was about the time I paid the money.
“Q. You paid him the same day?
“A. I think that is correct. * * * After the 27th day of December I conducted the business there. I didn’t change the sign, nor the license. I didn’t pay the State, county or city tax for the year 1907, and up to May, 1908; I just took out a government license. I didn’t take out any State or city license as a retail liquor dealer. This transaction was completed — closed between Mr. Yohlers and myself — on the 27th or 28th day of December, 1907, and the next day I did business there for myself under Mr. Yohlers’ license, State and city. * * * I paid the money to him about 12 o’clock at the saloon — 12 or 1 ■o’clock. None of the parties named in Yohlers’ affidavit were present at the saloon at that time.
“Q. Mr. McGann was there?
“A. Yes, and he saw me pay Mr. Yohlers a lot of money.
“Q. You didn’t show Mr. McGann that paper, did you, that afternoon, when he was there ?
“A. No; I didn’t show it to him. I didn’t know that Vohlers owed Mr. McGann. I didn’t show him the paper, neither did I show him the bill of sale.”
Redirect examination:
“The price that was put down on those things was put down by Vohlers about a week before the money was paid, or a week and a half.
“Q. How long before you paid the money, how long before the bill of sale was made out had you agreed with Vohlers to take the place ?
“A. Well, now, I cannot just tell you, for sure. I had the inventory a week or ten days before. Mr. McGann didn’t say to me why he came up there at that time. I think Mr. McGann was there probably half an hour.”
McGann’s version of what occurred is quite different from this. It is evident from the testimony of Mr. Porter, giving it full credence, that either when the talk was had with Mr. McGann the sale had been made, or that Mr. Porter had knowledge of the existence of this debt before he completed the transaction by making the final payment. In either event it is difficult to see how Mr. McGann, who knew nothing of the details of the transaction, is estopped. Mr. Porter saw fit to make the purchase without complying with the terms of the statute, and without taking any precaution to see that the note upon which Mr. McGann was an indorser was paid. There are various definitions of estoppel to be found in 2 Herman on Estoppel, pages 883 and 884, but they do not justify the contention of appellant.
In 2 Pomeroy’s Equity Jurisprudence (3d Ed.), §§ 804, 812, the following appears:
“Seo. 804. Definition. Prom the foregoing general description it will appear, I think, that the following definition is accurate, and covers all phases and applications of the doctrine: Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.”
“Sec. 812. Same. The conduct must be relied upon, and be an inducement for the other party to act. Whatever may be the real intention of the party making the representation, it is absolutely essential that this representation, whether consisting of words, acts, or silence, should be believed and relied upon as the inducement for action by the party who claims the benefit of the estoppel, and that, so relying upon it, and induced by it, he should take some action.”
See, also, Rust v. Bennett, 39 Mich. 521; Maxwell v. Bay City Bridge Co., 46 Mich. 278 (9 N. W. 410); Bond v. Markstrum, 102 Mich. 11, 19 (60 N. W. 282).
There is nothing in the record to show that the conduct or words of Mr. McGann affected the conduct of the plaintiff in any way.
Judgment is affirmed.
Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred. | [
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Blair, J.
The city of Grand Rapids is organized under a special act of the legislature (Act No. 593 of the Local Acts of 1905), entitled:
“ An act to revise the charter of the city of Grand Rapids, including therein also as part of such charter the acts controlling the board of education and the board of library commissioners,” as amended.
At the general city election upon the 4th day of April, 1910, the electors of the city of Grand Rapids, by a majority vote, declared in favor of a general revision of the charter of said city under and pursuant to the provisions of Act No. 279 of the Public Acts of 1909, entitled:
“ An act to provide for the incorporation of cities and for changing their boundaries.”
On the 23d of May, 1910, the common council of the city of Grand Rapids in regular session passed and adopted a resolution ordering a special election to be held in said city for the purpose of electing a charter commission and designating the 6th day of September, 1910, for the date of said election. Among other things, the resolution prescribed the method by which candidates for office of member of the charter commission shall be placed in nomination, and the manner in which the official ballots for use at said election shall be prepared. In the case of candidates for the charter commission from the several wards of the city, the resolution provides that nomination shall be by petition signed by not less than 20 qualified electors of said city, irrespective of party, residing in the same ward in which resides the candidate named in said petition, and provides that the petition shall be filed with the city clerk not less than 10 days before the date of said election. Relator tendered to the city clerk of said city a petition nominating him as candidate for member of the charter commission from the Twelfth ward of said city, and requesting that his name be placed upon the official ballot. The petition was signed by 20 qualified electors of the city, irrespective of party, residing in the Twelfth ward, the same ward in which resides the relator, the candidate named in the petition. Relator has the qualifications required by law for candidates. The petition was tendered to the city clerk on the 31st day of May, 1910. The city clerk refused to receive and file the petition, and on June 3d served on relator his reasons in writing for the refusal, claiming:
First. That the method of nomination does not comply with section 18 of Act No. 279 of the Public Acts of 1909.
Second. That it does not comply “ as near as may be ” with the law for the nomination of city and ward officers in the city of Grand Rapids as provided in said Act No. 279.
Third. That it does not comply with Act No. 281 of the Laws of 1909, nor with section 27 of said act.
Fourth. That the common council of the city of Grand Rapids cannot change the method of nomination so far as defined in the home rule act.
Petition for the issuance of a writ of mandamus was filed in this court on the 7th day of June, 1910, commanding James Schriver, clerk of the city of Grand Rapids, to receive and file the petition heretofore tendered to him nominating Ehlert A. Meves as a candidate for the office of member of the charter commission of the said city of Grand Rapids from the Twelfth ward of said city. On June 10, 1910, an order to show cause was issued from this court, returnable June 21, 1910, in accordance with the prayer of the petition, and the respondent has filed his answer to said petition. In and by, the said answer the respondent admits the allegations of fact hereinbefore stated to be true, and admits the nominating petition of relator is in conformity with the requirements of the resolution adopted by the common council. Respondent does not admit that it was, in form and substance, in conformity with the requirements of Act No. 279 of the Public Acts of 1909, entitled:
“An act to provide for the incorporation of cities and. for changing their boundaries.”
He does not admit that it was his duty, as city clerk of the city of Grand Rapids, to receive and file the said petition. He claims that the council had no authority to pass the resolution, and that candidates for the charter commission cannot be nominated in accordance with the resolution. He claims that candidates for the charter commission must be nominated under the primary law of 1909 (Act No. 281, Pub. Acts 1909), entitled:
“An act relative to the nomination of party candidates for public office and delegates to political conventions, to regulate primary elections and to prescribe penalties for violations of its provisions, and to provide for the printing upon election ballots of the names of candidates nominated under the terms of this act, and to repeal Act No. 4 of the Public Acts of the Extra Session of the year 1907, and all local primary election acts contravening the provisions of this act, except as in this act otherwise provided.”
Section 18 of Act No. 279, Pub. Acts 1909, provides for the election of a charter commission to make a general revision of the city charter,—
“ Consisting of one elector from each ward and three electors at large, having a residence of at least three years in the municipality; no city officer or employé whether elected or appointed shall be eligible to a place upon said commission; the names of all candidates who have been duly nominated as hereinafter provided shall be placed upon a separate ballot at the election designated to be held for the election of a charter commission and without their party affiliations designated; the candidate having the greatest number of votes in each ward shall be declared elected, and the three candidates at large having the greatest number of votes cast in the city shall be declared elected; the nomination and election of the members of such commission except as herein specified, shall be conducted as near as may be as now provided by law for the nomination and election of city and ward officers in the respective cities of this State.”
We find no serious difficulty in interpreting this section. The language, “the names of all candidates who have been duly nominated as hereinafter provided,” clearly refers to the later provision of the same section that such nominations shall, “except as herein specified,” be conducted, “as near as may be,” in accordance with the then existing law.
Act No. 281 of the Public Acts of 1909, approved on the same day as Act No. 279, in its provisions for the nomination of city and ward officers, applies to the city of Grand Rapids. By section 17 of this act, every city in the State having a population of 70,000 or more is brought within the provisions of the act. Section 27 of this act reads in part as follows:
“To obtain the printing of the name of any candidate of any political party for a city office on the official primary election ballots for use in such city, there shall be filed with the city clerk of such city such nominating petitions signed by a number of enrolled voters of such political party and who reside in such city, equal to not less than two per centum nor more than four per centum of the number of votes that such political^ party cast therein for secretary of State at the last preceding November election.”
Respondent’s answer, paragraph 10 of the Meves Case, and section 11 of the Irwin Case, gives the number of votes of the leading political parties cast at the last general State election for secretary of State. For the two leading parties it would require to nominate a candidate at large a minimum of 207 signers for the Republican petition, and 174 for the Democratic, with a comparatively small number for the others.
It is contended by relator that the words, “ except as herein provided,” in section 18, refer back to the provisions of section 15 relating to the incorporation of new cities, providing, as to the election of a charter commission, as follows:
“ And such county clerk shall also prepare a separate ballot and place upon the same without party designation, under the heading ‘Candidates for members of the charter commission,’ the names of all electors, having the qualifications required by this act for members of charter commissions, who shall file a petition signed by twenty qualified electors residing in the territory proposed to be incorporated, asking that such name be placed upon the ballot.”
We are of the opinion that the exception relates to the designation upon the ballot, “ without their party affiliations,” and not to the provisions of section 15, which relate solely to the incorporation of new cities.
Relator further contends that unless his construction of the words, “except as herein specified,” be adopted, the provision of section 18' that the nomination and election shall be conducted “as near as may be,” etc., is unconsti tutional as contravening the provisions of article 8, § 20, and article 5, § 30, of the State Constitution (1909).
We do not find it necessary to consider the constitutionality of the method provided in section 18 for the nomination and election of members of the charter commission, since, in our opinion, it is the only method provided for the purpose, and, not having been followed by relator, he is not entitled to the writ prayed for.
This opinion also disposes of the companion case of Irwin v. Schriver, and the petitions in both cases are denied.
Bird, C. J., and Ostrander, Hooker, and Stone, JJ., concurred. | [
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Hooker, J.
The plaintiff, as administratrix of the estate of James L. Kilts, her husband, brought this action in the circuit court for the county of Kent to recover damages for the injury and subsequent death of her husband through the alleged negligence of the defendants. The accident occurred by reason of the giving way of a platform at the top of a water tower at the county farm of Kent county, due to insufficient support; it being conceded that the “ I ” beams used as joists under the platform ,were too light for the support of so heavy a load as was imposed upon them. Deceased and a fellow workman who were at work on the covering for the tank at the time of the collapse of the structure fell a distance of 80 feet, and both died from the fall.
The action is brought against the board of supervisors who authorized the erection of the tower and tank to furnish water for the poorhouse, boilers, closets, etc.; Stevens & Ziesse, copartners, who contracted with the board to erect the tower, etc., and the Grand Rapids Bridge Company, a corporation, being the subcontractor who furnished material and constructed the tower according to plans furnished by itself and acceptable to the board of supervisors. The bridge company did not appear, and its default was entered. Stevens & Ziesse defended upon the ground that the bridge company was an independent contractor, and therefore they were not liable, while the board of supervisors joined to that ground of defense the further one that the erection of the tower was ordered by them in the capacity of a governmental agency. The learned trial judge directed a verdict for Stevens & Ziesse and the board upon the grounds stated, and allowed the jury to render a verdict against the bridge company, upon which judgment was rendered for $5,000 against the bridge company, and the plaintiff has appealed.
"We understand that the appeal relates only to these defendants in whose favor a verdict was directed. That the bridge company was really the one at fault for the defect in the joists which caused the accident is indisputable on this record, and it was primarily liable, as it seems to have conceded by its default. Treating the case as one of negligence, it would seem that the contention of Stevens & Ziesse cannot be successfully resisted. The bridge company was clearly an independent contractor, and Stevens & Ziesse are not liable for its negligence.
The board of supervisors represented the county of Kent, and in making required or necessary provision for the poor performed a governmental function. See 4 Current Law, p. 721. The provision of necessary water for drinking, culinary, and sewer purposes, and as a protection against fire, is well within their implied power, if, indeed, they rest only in implication. Counsel for the county cite many cases from other, as well as our own, courts, sustaining this principle, and justifying its application to this case. We avail ourselves of the opportunity to collect from his brief, and insert in this opinion for convenient reference a list of our own cases upon this subject. City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450); Gale v. Village of Kalamazoo, 23 Mich. 344 (9 Am. Rep. 80); O’Leary v. Board of Fire & Water Com’rs of Marquette, 79 Mich. 286 (44 N. W. 608, 7 L. R. A. 170, 19 Am. St. Rep. 169); Gilboy v. City of Detroit, 115 Mich. 121 (73 N. W. 128); Shipman v. Live Stock Com’n, 115 Mich. 488 (73 N. W. 817); Murray v. Village of Grass Lake, 125 Mich. 2 (83 N. W. 995); Nicholson v. City of Detroit, 129 Mich. 246 (88 N. W. 695, 56 L. R. A. 601); Brink v. City of Grand Rapids, 144 Mich. 472 (108 N. W. 430); Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552); Lenderink v. Village of Rockford, 135 Mich. 531 (98 N. W. 4); Rowland v. Kalamazoo Sup’ts of Poor, 49 Mich. 553 (14 N. W. 494); City of Pontiac v. Carter, 32 Mich. 164; Webster v. County of Hillsdale, 99 Mich. 259 (58 N. W. 317); Larkin v. County of Saginaw, 11 Mich. 88 (82 Am. Dec. 63); Miller v. City of Kalamazoo, 140 Mich. 494 (103 N. W. 845); Hines v. City of Charlotte, 72 Mich. 278 (40 N. W. 333, 1 L. R. A. 844); Sheldon v. Village of Kalamazoo, 24 Mich. 383; Buskirk v. Strickland, 47 Mich. 389 (11 N. W. 210); City of Detroit v. Beckman, 34 Mich. 125 (22 Am. Rep. 507); Barron v. City of Detroit, 94 Mich. 601 (54 N. W. 273, 19 L. R. A. 452, 34 Am. St. Rep. 366). We are of the opinion, therefore, that neither of these two defendants is liable for the negligent injury of deceased.
Counsel for the plaintiff ask us to hold these defendants liable upon another ground, i. e., that the tower was a nuisance, and therefore all the defendants are liable for the injury, upon the theory that all who have to do with creating or maintaining a nuisance are liable for injuries resulting therefrom.
Counsel make an ingenious and plausible argument that this tower and tank constituted a nuisance, for which all concerned in its erection are responsible, and each and every one of them liable for damages resulting therefrom, whether it was due to negligence or not, under an alleged general rule applicable to nuisances. We think this claim, if sustained, would be an extension of the law of nuisance. It is undeniable that when one causes to be erected a building upon his premises so near the street that snow may slide, or its defective walls fall, upon a passerby, upon the highway, it is a public nuisance, and whether the defect was due to the negligence of the owner who may have had no part in the erection of the building or not is unimportant, for the reason that he was bound not to maintain or permit a public nuisance to exist on his premises. And if, instead of being contiguous to a highway, the defective structure was adjacent to an adjoining proprietor’s land so that it was a menace to his property, or to his person in the use of his land, it would be a private nuisance and a breach of the owner’s duty to maintain it. In either case he would be liable for injuries received from a fall of the snow or building, not necessarily because he was negligent in erecting or maintaining it, but because of his wrongful invasion of the rights of the public or his neighbor, liability for which does not depend upon motive. Neither need wait until serious damage has resulted, but the threatened danger may be averted by a proceeding to abate the existing nuisance.
But a private person may use his own premises as he will, so long as he does no injury to the public, or to the property and rights of a private person, and one may erect a weak structure upon his premises, so far from the street and other’s property, that persons not entering upon his premises can be in no danger from it. It is true that trespassers or licensees or persons residing upon the farm may suffer injury, and they may be entitled to redress in many cases on the ground of negligence, but we know of no adjudicated cases that hold that such persons have a right to ask the abatement of such structures, which are in no way related to property rights of theirs. They are volunteers upon the premises, with certain rights of protection, to be sure, but not with the right to ask the owner to remove structures that they may think dangerous. The enunciation of the doctrine contended for would be attended by far-reaching results, and practically make every man the insurer of his help, his guests, and even strangers rightfully upon the premises. Practically it would have a tendency to eliminate the whole doctrine of negligence in large classes of cases, for juries would be asked to find that buildings, machines, walks, roads, and all other articles or structures were nuisances if in any way defective or out of repair, because dangerous to those approaching them. The doctrine of contributory negligence would go with that of negligence if counsel’s contention is correct.
We are of the opinion that a nuisance involves, not only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same, and that the doctrine should be confined to such cases; While adjudicated cases have been so variable that courts generally regard a technical and comprehensive definition difficult if not impracticable, the trend of opinion seems to be that the circumstances must be examined with a view to ascertaining whether the alleged condition is one so serious as to interfere with the comfort of life and enjoyment of property, or so threatening as to constitute an impending danger to persons in the enjoyment of their legitimate rights. The following quotations indicate this rule:
“Anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights.” Village of Cardington v. Fredericks, 46 Ohio St. 442 (21 N. E. 766).
“ Injury to property, with reference to its reasonable and ordinary use, by continuous hurtful acts, constituted a nuisance undoubtedly.” Sparhawk v. Railway Co., 54 Pa. 401, 421, per Thompson, J.
“A ‘nuisance’ is a term for all practices, avocations, erections, establishments, etc., against which courts will give relief, although they are not intrinsically criminal, because of their tendency to create annoyance, ill health, or inconvenience.” Gifford v. Hulett, 62 Vt. 342, 346 (19 Atl. 231), per Taft, J. (A case of a barn.)
“ The real question in all the cases is the question of fact, viz., whether the annoyance is such as materially to interfere with the ordinary comfort of human existence.” Crump v. Lambert, L. R. 3 Eq. Cas. 409, 413, per Lord Romily, M. R.
“Anything not warranted by law which annoys and disturbs one in the. use of his property, rendering its ordinary use and occupation uncomfortable to him, is a nuisance. If the annoyance is such as to materially interfere with the ordinary comfort of human existence, it is a nuisance.” Nolan v. City of New Britain, 69 Conn. 668, 678 (38 Atl. 706), per Andrews, C. J.
“ Nuisances to one’s dwelling house are all acts done by another which render the enjoyment of life within the house uncomfortable, whether it be by infecting the air with noisome smells, or with gases injurious to health.” Cropsey v. Murphy, 1 Hilt. (N. Y.) 126, 127, per Brady, J.
“It is not necessary that the smell should be unwholesome. It is enough if it renders the enjoyment of life and property uncomfortable.” Rex v. White, 1 Burr. 333, 337, per Lord Mansfield.
Blackstone defines “ private nuisance” to be:
“Anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.” 3 Black. Commentaries, p. *216.
In State v. Beardsley, 108 Iowa, 396 (79 N. W. 138), it was said:
“A nuisance is the unlawful use of one’s own property, working an injury to the right of another or of the public, and producing such inconvenience, discomfort, or hurt that the law will presume a consequent damage.”
See, also, definition in Joyce on Nuisances, p. 18.
“A use made by one of his own property which works an irreparable injury to another’s property, or which deprives his neighbor of the reasonable and comfortable enjoyment and use of his property, or which violates the unwritten but accepted law of decency, or which endangers or renders insecure the life and health of his neighbor, is a nuisance. So every enjoyment by one of his own property which conflicts with the rights of another in an essential degree is a nuisance. Another definition is: A private nuisance is ‘ where one so uses his property as to damage another’s or disturb his quiet enjoyment of it.’ A nuisance is also defined as ‘a tort.’ It is ‘the use of one’s own property which involves injury to the property, or other right, or interest of the neighborhood.’ So where anything is constructed on a person’s premises, which of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, it is a nuisance.”
Running through all of these is the element of a wrongful, continuing, impending danger to the lives, limbs, or health of the public, or to the legitimate property or personal rights of private persons peculiarly subject to the danger. The defendants in this case owed no duty to the deceased not to erect or maintain this structure. They committed no wrong against him in doing so, for they had no relations with him and he had no right upon the premises up to the time that he was employed to cover the tank. His rights under such employment, such as the right to a safe place to work, and to warning of danger, are to be measured by the ordinary rules of negligence cases, and grow out of his contract of employment, whether the tower was a private nuisance as to other persons or not. In this cause counsel’s contention would subject every person who had anything to do with the authorizing, planning, or erecting of this tower and tank to liability for the injury to the intestate.
We fail to find adjudicated cases sustaining such a rule, and are therefore constrained to affirm the judgment.
Ostrander, Moore, McAlvay, and Brooke, JJ., concurred. | [
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Ostrander, J.
The city of Grand Ledge, by the action of the council and of the qualified voters of the city, issued its bonds to defray the cost of a bridge over Grand river, in said city, in place of an existing bridge, and later entered into a contract for the construction of the new bridge. The work of construction is going on — or was until this suit was begun — and something more than $15,000 of the contract price of $50,000 has been paid to the contractor. The bill in this cause was filed by a resident qualified voter and taxpayer of the city, owning real estate therein, against the said city and the treasurer and clerk thereof, and it is charged that since the passage of Act No. 215 of the Public Acts of 1895 (1 Comp. Laws, chap. 88), the city has had no right to operate under the special charter incorporating said city in the year 1893, and is without authority under said special charter of 1893 (Act No. 322, Local Acts 1893) to construct said bridge except in conjunction with the township of Oneida, out of the territory of which the said city was carved and erected. It is prayed that the clerk and treasurer of the city may be enjoined from issuing and paying further warrants for money in favor of said contractor. Defendants filed a joint answer, the complainant replied. It was stipulated by counsel that the facts are as stated in the bill and answer, and that the cause might be heard upon the pleadings. The bill was dismissed, and the complainant has appealed.
The meritorious question, and the only one debated in this court, arises out of facts now to be stated. In 1893 an act was passed, entitled:
“An act to incorporate the city of Grand Ledge, in the county of Eaton, and to repeal act number two hundred and sixty of the session laws of eighteen hundred and seventy-one, and all acts amendatory thereof.”
The act was ordered to take immediate effect and was approved March 27, 1893. Since that time the city has operated under the charter. The community had previously been an incorporated village. Sections 1 and 3 of chapter 17 of the city charter reads as follows:
“Section 1. The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks and public grounds within the city, and shall cause the same to be kept in repair, and free from nuisance, except as herein otherwise provided: Provided, That the present Bridge street bridge crossing Grand river within the limits of the said city of Grand Ledge, being located in a highway leading into and through said city, and which was laid out by the commissioner of highways of the township of Oneida, shall be maintained, controlled, kept in repair, and rebuilt when necessary by the township of Oneida and the city of Grand Ledge jointly, according to the assessed valuation of the said township and city, the same as if said city were not incorporated, and all other bridges in said city shall be built, controlled and kept in repair by the said city.
“ Sec. 3. The present bridge across and over the Grand river within the limits of said city, shall be maintained, kept in repair and rebuilt when necessary at the joint expense of the city of Grand Ledge and the township of Oneida pro rata according to the assessed valuation of said city and township, but other bridges shall be constructed and kept in repair at the expense of the city.”
The bridge in question is the bridge mentioned in these sections of the charter, is unsafe, is the only way for public traffic across Grand river for many miles in either direction, and is between the business portion of the city and the railroad station. The river divides, or did divide when the charter was enacted, the two wards of the city. The city is proceeding alone to rebuild it and proposes to pay the entire expense thereof. It does not appear that the township was requested to join the city in rebuilding the bridge.
The city contends:
First. That if the provisions of the charter which have been referred to are given any effect the law will embrace more than one object.
Second. That as the charter makes no further or other reference to the subject the provision for joint liability of the city and township is wholly inoperative.
Third. That these provisions may be eliminated, and the charter will remain a valid and effective law.
The legislation is most singular and can be accounted for only by supposing that it was understood that the particular bridge had greatly served and would continue to serve the inhabitants of the township, which is divided by the river, as distinguished from the inhabitants of the city, and that it would be only fair that they should contribute to its maintenance and to its rebuilding. Whatever the reason which prompted the legislation may have been, it is manifest that the law is not only incomplete, but that the purpose which is expressed involves, and would involve, under any method for carrying it into effect, the levy and collection of taxes in the township of Oneida. The law is not complete because it does not specify in what manner joint control of the bridge by two distinct municipalities may be exercised, nor upon what initiative, in case of disagreement as to necessity for or the form or Cost of repairs or replacement, such repairs or replacement may be effected and contribution to the expense thereof compelled. In what way, for example, may the township authorities discharge the duty to keep the bridge in repair ? See Township of Summit v. City of Jackson, 154 Mich. 37 (117 N. W. 545). Indeed, unless the charter provision is held to expressly confer the power upon the township of Oneida to levy taxes to maintain a structure erected in another municipality, and- subject, in part at least, to the control of another municipality, there is no power to levy taxes, or to disburse the money of the township, to maintain or to replace this bridge. There are insuperable difficulties in the way of working out the apparent legislative purpose, in the absence of a legislative method.
Does the act embrace more than one object ? Almost any provision germane to the purposes of community government, and not prohibited by the Constitution, may be proper in an act to incorporate a city. But there is no apparent connection between the subject of erecting a city and the one of burdening a township in the same or some other county. ®The inhabitants of Oneida township would not be apt to read the charter of the city of Grand Ledge to discover the purposes for which township taxes might be laid, or to learn what duties were imposed by law upon the township officers. What was said by this court in Wilcox v. Paddock, 65 Mich. 23, 28 (31 N. W. 609), is applicable.
In City of Lansing v. Board of State Auditors, 111 Mich. 327 (69 N. W. 723), it appeared that in an act to reincorporate the city of Lansing there was a provision which required the city to afford fire and police protection to property owned by the State, etc., and that the State board of auditors should allow the city a sum of money therefor, to be ascertained1 in a manner pointed out. It was held that this provision of the charter was without force because no such object was expressed in the title of the act. The reasoning of the majority of the Justices is applicable here. And in this case, as in that, the provision may be wholly eliminated and the act sustained. We find no want of power on the part of the city of Grand Ledge to build bridges over Grand river, and have no doubt that it might, if necessity required it, construct the identical bridge by the side of the bridge referred to in the act of incorporation.
The decree of the court below is. affirmed, but without costs to either party.
Bird, O. J., and Hooker, Blair, and Stone, JJ., concurred. | [
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Blair, J.
This case was tried by the court without a jury and the court made the following findings of fact and of law:
“ On July 37, 1906, the plaintiff, a jeweler and manufacturer at the city of Kalamazoo, shipped by the defendant express company a small package addressed to ‘David Ullman & Co., New York City,’ containing a quantity of valuable opals. Upon the package was the plaintiff’s address, as well as the address of the consignee and also the word ‘ Opals.’ The plaintiff had been in the habit of shipping articles and merchandise by the defendant express company, and defendant had furnished him with a book of receipts to facilitate such shipments. The plaintiff himself filled out the receipt covering the shipment in question in this case and a copy of the same is attached to these findings. The plaintiff delivered the package in question to one of the defendant’s drivers, who called at his store for the same and signed the receipt. Plaintiff testified that he thought, but was not positive, that he informed the driver that the package contained opals. The charges were not paid in advance by plaintiff, but were to be collected of the consignee upon delivery. The defendant lost the package in shipment and same was never delivered to the consignee. The plaintiff on or about November 15, 1906, made a claim as against the defendant for the value of the opals, but defendant denied its liability, except in the amount of fifty dollars ($50), and some time in March, 1907, and before the commencement of this suit, made a tender to plaintiff of fifty dollars ($50) in full of its liability in the matter, which plaintiff declined to accept. The package contained 33 opals of 3 karats in size; 44, 1£ karats in size, and 54, 1 karat in size. I find from the testimony that these opals were fairly worth two dollars ($3) per karat at the city of Kalamazoo at the date of said shipment, and as a whole, the sum of three hundred and seventy-two dollars ($373).
“Findings of Law.,
“Under the facts, as above found, the plaintiff is entitled to recover the full amount of his loss, and is not limited to the amount of fifty dollars ($50). The opals were received by the defendant with notice and knowledge that the package contained valuable opals. The defendant made no inquiry as to their special value, and the limit of liability expressed in the receipt was waived. * * * The plaintiff is entitled to a judgment as against the defendant for the sum of three hundred and seventy-two dollars ($372) the fair market value of the opals at the date of shipment, with interest at five (5) per cent, per annum from that date, namely, fifty-one and 51-100 ($51.51) dollars. Judgment will be entered in favor of the plaintiff and against the defendant for the sum of four hundred and twenty-four ($424) dollars, with costs of suit to be taxed.”
A portion of the copy of the receipt attached to the findings of fact is as follows:
“ (OOFÍ OF RECEIPT.)
“The Company’s Charge is Based upon the Value of the Property, which must be Declared by the Shipper.
“ADAMS EXPRESS COMPANY
“ [Not Negotiable.]
“ Received from F. P. D’Arcy the following articles, subject to the Contract printed below.
DATE
DATE 7/37
ARTICLE 1 Pack opals.
VALUE
CONSIGNEE David Ullman & Co.
DESTINATION w v iN‘ x‘
REO’D FOR THE COMPANY Huelser
ARTICLE
“1. In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater, value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.”
By the terms of the receipt filled out by plaintiff, the duty of fixing a valuation upon the package of opals was imposed upon plaintiff. He did not discharge this duty, and was, therefore, bound by his agreement that the company should not be liable for more than $50. Smith v. Express Co., 108 Mich. 572 (66 N. W. 479).
The judgment is reversed, and a new trial granted.
Bird, C. J., and Ostrander, Hooker, and Stone, JJ., concurred. | [
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Stone, J.
This is an action of assumpsit brought upon a guaranty of lease bearing date March 30, 1905. At that date the plaintiff was the owner of a business building on Main street, in Cheboygan, and a dwelling house immediately back of the same, fronting on Water street. Max Schoenith was a saloon keeper, who, prior to March 30, 1905, had occupied the business building for a saloon and the house back of it for a residence. On that day he and the plaintiff executed a lease from her to him of the premises in question for five years from the date, under which the rent reserved for both properties was $44 per month. One of the conditions of the’execution of the lease was that the rent should be guaranteed. Schoenith at the time he executed the lease was a customer of defendant, buying his beer from it. The defendant is a Michigan corporation, organized for the purpose of manufacturing and selling lager beer and malt. On the same day and soon after the execution of the lease, the plaintiff’s agent took the lease, with the contract guaranteeing the payment of the rent printed thereon, to the office of the defendant, and the guaranty was.signed “Cheboygan Brg. & Malting Co., per S. Wilhartz, Mgr.” It was later signed by William H. Craig as a co-surety, but he was not served with process. The contract of guaranty reads as follows:
“In consideration of the letting of the premises in the foregoing instrument described, and for the sum of one dollar, to them paid, they do hereby become surety for the punctual payment of the rent and performance of the covenants in said instrument mentioned, to be paid and performed by the second party therein named; that if any default shall at any time be made therein, they do hereby promise and agree to pay unto the said party of the first part named in said instrument, the said rents and arrears thereof that may be due, and fully satisfy the conditions of said instrument, all damages that may occur by reason of the nonfulfillment thereof, without requiring notice or proof of the demand being made.
“ Witness their hands and seals this 30th day of March, 1905.
“ Cheboygan Brg. & Malting Co.,
“ Per S. Wilhartz, Mgr. [L. S.]
“William H. Craig. ”
The case was heard before the court without a jury, and the following findings of facts and of law were filed, before judgment:
“ Finding of Facts.
“ (1) The plaintiff in this case sues upon the obligation covered by the lease and the guaranty set out in the declaration as Exhibit A.
“ (2) Prior to the time of making Exhibit A, Mr. Max Schoenith, the lessee, in Exhibit A, had been renting the saloon building from the plaintiff, paying, therefor $30 a month. At the time of making this lease, Exhibit A, he rented the saloon building, which had been previously occupied by him as a saloon, and was thereafter similarly occupied by him, and also the house on Water street immediately adjoining the same piece of property. The saloon is on lot 17, the first described property in said lease, the house is on lot 18, the second described piece of real estate. The agreed price at that time was $9 for the house and $35 for the saloon building. The amounts were not separately stated in the written contract but each of the lots is described, and it appears from the face of the lease that the property was to be occupied ‘ for a retail liquor business and residence of his family.’
“(2^) The defendant, Cheboygan Brewing & Malting Company, is a Michigan corporation, organized, as stated in its articles of association, for the purpose of the manufacture and sale of lager beer and malt.
“ (3) The defendant company changed its list of stockholders completely on February 1, 1905. On that day Mr. Moloney and the old stockholders held their last meeting and adjourned to Minneapolis, and on the same day transferred their stock to new purchasers who held a meeting in Minneapolis on February 7, 1905, and elected their board of directors, who in turn, on the same day, elected Mr. Barnum as president, Mr. Rutherford as treasurer and assistant secretary, and Mr. Wilhartz as secretary. Special authority was given to Mr. Rutherford to collect all moneys and deposit them in the bank and to check against same, evidently in the name of the company, and a resolution was passed authorizing Mr. Rutherford to create a special fund of $1,000 against which Mr. Wilhartz could check. Mr. Wilhartz was not elected general manager and was not expressly given any such powers; on the contrary his specified powers were limited even as secretary.
“ (4) The testimony shows that Mr. Barnum, the president, spent much of the first year in Cheboygan. He had the power to, and did, draw checks, as did also Mr. Rutherford.
t£ (5) Mr. Wilhartz was never authorized by the defendant company to make the contract sued on in this case, or any one similar to it. The making of this contract was never known to any of the officers, directors, or stockholders of said company, neither were any of the alleged conversations or acts, if any, of Mr. Wilhartz which were subsequently done through Mr. Harpster, or Mr. Schoenith, or Mr. Moloney, known to any of the stockholders, officers, or directors.
_ “ (6) Mr. Schoenith bought beer of the company previous to the making of this contract and subsequent thereto. There is no testimony of any kind of any agreement between Mr. Schoenith and the company or Mr. Wilhartz that if the company or Mr. Wilhartz would sign the guaranty lease Mr. Schoenith would buy of them his beer, and there is no testimony of any benefit contemplated or received by the company by virtue of the undertaking sued on.
££(7) It appears that at the time of the making of the lease one Alexander Grieve was acting as the agent of the plaintiff in renting the property. After Mr. Wilhartz signed the guaranty Mr. Grieve took Exhibit A to Mr. Craig who signed. There is no evidence of any notification by Mrs. McBroom or any one for or in her behalf given to the defendant company of her acceptance of the arrangement created by the signing of the instrument by the defendant company, except the evidence of Mr. Grieve as to his agency, and that he took the paper to Mr. Wilhartz who signed, and thereafter he, Grieve, took the same away for Mr. Craig’s signature.
^ “(8) The testimony shows that Mr. Wilhartz never signed, either before or afterwards, the company’s name to any similar guaranty to that shown by Exhibit A. The testimony also shows that previous to the making of this lease he never indorsed any of the company notes, though at a later date his authority was increased to include the indorsement of company notes of purchase. Mr. Wilhartz drew checks previous to the making of Exhibit A as well as afterwards. He was the officer of the company coming most in contact with the public and most active in making sales.
“ (9) Mr. Sehoenith was not joined as a defendant.
“ (10) The lease in question, the guaranty of which was sued upon, covered rent for the term of five years from and after the 1st day of May, 1905, for the premises to he occupied by Mr. Sehoenith in his business, and also for the house which he and his family occupied.
“ (11) There is no evidence that the plaintiff or any one acting for or in her behalf either saw, knew of, or relied upon any acts of Mr. Wilhartz indicating that the company were holding him out as having authority to execute such a guaranty. Neither plaintiff nor her agent gives any such testimony.
“Findings of Law.
‘ ‘ (1) The failure to join Sehoenith in the proceeding may not be taken advantage of under the general issue here pleaded.
“ (2) Acceptance by plaintiff by her agent, Grieve, is sufficiently proved.
“ (3) The contract sued on is not ultra vires the corporation.
“ (4) Mr. Wilhartz was the manager of defendant corporation, having charge of its office and 'authorized, through the holding out by the defendant, to make such contracts as may be presumed to be made by a general agent; however, the extension of a guaranty for so long a term beyond the saloon year would be beyond the power of any general agent aside from the board of directors, and perhaps even them.
“ (5) There was nothing in such holding out of Mr. Wilhartz’s authority as would warrant any one, without inquiry, to accept his authority to execute the contract sued upon.
“ (6) Judgment shall be entered in favor of defendant of no cause of action.”
The plaintiff brings error. The first 11 assignments of error relate to rulings of the court in the admission of evidence. We have examined them with care, and find no error. There would be no profit in discussing them at length.
The 12th and 13th assignments of error deal with the refusal of the court to amend the findings of fact as proposed by plaintiff. This court held in Beal v. Polhemus, 67 Mich. 130 (34 N. W. 532), that the refusal to allow amendments to findings of fact is not a subject of review in this court, where, as in this case, the findings are supported by the evidence.
The 14th assignment of error Is based upon the refusal to strike out in findings of law No. 4 all after the word “agent” in the fourth line, and insert:
“The defendant’s secretary and general manager, Mr. Wilhartz, as general agent, had the authority to execute the lease in question. It was in the promotion of the corporate purposes of the defendant.”
The 15th and 16th assignments of error relate to the judgment entered.
It will not be necessary to discuss the first three findings of law more than to say that the evidence in the case does not bring it within the ruling in Timm v. Brewing Co., 160 Mich. 371 (125 N. W. 357). The record here fails to show any agreement to buy beer exclusively or otherwise by Schoenith from the defendant, or any agreement that would tend to benefit the defendant, or did benefit it; or |any inducement held out to defendant; and the guaranty related to the rent of the dwelling house as well as the saloon
Referring to the 14th assignment of error relating to the fourth finding of law, it should be stated that Mr. Wilhartz became secretary of the defendant on February 8, 1905. It is undisputed that at the time of the signing of the guaranty he was secretary of the company, but was not its manager. As a matter of fact, he did not have authority to sign the instrument sued upon, or to do any similar act. No such authority had been conferred upon him by the board of directors. It was an unusual and extraordinary act. We have held that such an officer would not have implied power to sign commercial paper, or pledge the credit of the company to the payment of a debt of a third party. Here he assumed to guarantee the payment by a third party of rent for a period of five years, and far beyond his term of office. He had no express au thority. New York Iron Mine v. First Nat. Bank of Negaunee, 39 Mich. 644; Ruppe v. Edwards, 52 Mich. 411 (18 N. W. 193); McLellan v. Detroit File Works, 56 Mich. 583 (23 N. W. 321); Stilwell-Bierce & Smith-Vaile Co. v. Paper Mill Co., 115 Mich. 35 (72 N. W. 1107); Gould v. W. J. Gould & Co., 134 Mich. 515 (96 N. W. 576, 104 Am. St. Rep. 624). We are of opinion, also, that under the doctrine of the case of Laird v. Lubricator Co., 153 Mich. 52 (116 N. W. 534, 17 L. R. A. [N. S.] 177), Mr. Wilhartz had no such authority.
It only remains to consider whether Mr. Wilhartz was, by defendant, clothed with apparent authority — whether he was “ held out ” by the defendant as having authority to sign this guaranty. Plaintiff can only bring to her support such “ holding out,” and clothing with apparent authority, as was had and done before the execution' of the instrument sued on, and upon which plaintiff relied. Estoppel is the basis, and the principle is that the other party must have been induced to act upon the “ holding out.” The principal is bound to third persons who have relied thereon in good faith by the apparent authority he has given to the agent. 31 Cyc. p. 1331 et seq.; 1 Am. & Eng. Enc. Law (2d Ed.), pp. 989, 990; Mechem on Agency (Ed. of 1889), § 84; Jewett v. Bryant, 159 Mich. 345 (123 N. W. 1097); Davis v. Kneale, 97 Mich. 72 (56 N. W. 220); Wierman v. Sugar Co., 142 Mich. 422 (106 N. W. 75). In the case last cited, Justice Grant said:
“ The apparent power of the agent is to be determined by the acts of the principal, and not by the acts of the agent.”
See, also, Heffron v. Armsby, 61 Mich. 505 (28 N. W. 672); Barry v. Insurance Co., 62 Mich. 424 (29 N. W. 31); Verdiner v. Olney, 77 Mich. 310 (43 N. W. 975); Leo Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50, 34 Am. St. Rep. 350); Hirschmann v. Railroad Co., 97 Mich. 397 (56 N. W. 842). See language of Justice Hooker in Clark v. Dillman, 108 Mich. 627 (66 N. W. 570).
We are unable to find in this record any “ holding out ” by the defendant which was relied upon by the plaintiff when or before the guaranty was signed. The plaintiff was not a witness, and her agent does not testify to any such act. Practically all of the testimony as to the ‘c holding out, ” relates to matters subsequent to the signing of the guaranty. Certainly, such matters did not induce the plaintiff to.rely upon the apparent authority of Mr. Wilhartz.
Plaintiff cites Constantine v. Sugar Co., 132 Mich. 487 (93 N. W. 1088). The case is readily distinguishable. There the manager and secretary was held to be clothed with the power to make a reasonable contract for the benefit of the company’s legitimate business. Here the secretary sought to bind the company as surety for a third person.
We think that there was no prejudicial error in the case, and that the circuit judge reached the correct conclusion.
The judgment below is affirmed.
Bird, C. J., and Ostrander, Hooker, and Blair, JJ., concurred. | [
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Hooker, J.
An information was filed by the attorney general upon the relation of John W. Linnell, Jr., against a number of persons, charging them with exercising the franchises and privileges of a corporation of this State without authority of law. Several defendants united in four pleas, to which the attorney general has demurred. The question before us is, therefore, whether these pleas state a good and valid defense to the charge.
A brief statement of the allegations of these pleas will suffice to show the nature of the case and the questions to be decided. The Evergreen Bluff Mining Company, a valid corporation, was organized in this State in August, 1853, for the purpose of mining copper. It carried on business until the expiration of the constitutional period, when it had a tract of valuable land and perhaps other property. It has never parted with the land unless it be by operation of law. In March, 1883, it undertook to extend its corporate life for a further period of 30 years under the provisions of Act No. 16, Pub. Acts 1882, by a full compliance with the provisions of said act. From that time to this the stockholders have exercised the rights, powers, and privileges, and fulfilled the duties and liabilities of a corporation, all of which has been well known to the attorney general, the people, and the relator. Act No. 16 aforesaid has been amended twice by the legislature, but has been held by this court to have no application to a corporation, which had been organized and exercised corporate powers for the constitutional period of 30 years. Mason v. Perkins, 73 Mich. 303 (41 N. W. 126). In April, 1889, the electors of the State adopted the following amendment to the Constitution:
“Seo. 10. No corporation except for municipal purposes or for the construction of railroads, plank roads and canals, shall be created for a longer time than thirty years; but the legislature may provide by general laws applicable to any corporations for one or more extensions of the term of such corporations while such term is running not exceeding thirty years for each extension, on the consent of not less than a two-thirds majority of the cap ital of the corporation; and by like general laws for the corporate re-organization for a further period not exceeding thirty years, of such corporations whose terms have expired by limitation, on the consent of not less than four-fifths of the capital: Provided, That in cases of corporations where'there is no capital stock the legislature may provide the manner in which such corporations may be reorganized.” Const. art. 15, § 10.
In Juile, 1889, the legislature enacted such a law as was contemplated by said amendment. Apparently respondents have not since taken the prescribed steps to reorganize under such statute. Act No. 129, Pub. Acts 1889. Meantime said stockholders in the name of and as such corporation have regularly elected officers, filed reports, transferred stock on its books, and sold and conveyed property, and claimed to be a corporation, all of which the attorney general and other State officers and relator knew. The pleas allege, further, that, knowing these things, relator, who was a stockholder of the Mass Consolidated Mining Company, which had for five years tried to purchase the mining lands and property of the Evergreen Company by direct purchase, or by obtaining a controlling interest in its capital stock, in order to accomplish that at such price and on such terms as he should dictate, has purchased 4,958f shares of the stock of said corporation, and caused the same to be transferred on the books of the corporation, and on the same day asserted that respondents were not a valid corporation, and, failing to obtain respondent’s stock, threatened to institute these proceedings through the attorney general to cause the winding up of the concern and the sale of its property. It was alleged, further, that the former owners of said 4,958f shares of said stock remained stockholders and participated in the acts of said corporation until they sold their stock to relator and his associates.
Counsel for respondents contend that the information should be quashed for the following reasons:
(1) The acquiescence, delay, and laches of the State.
(2) There is, in fact, no public grievance and the writ is prosecuted for the private benefit of the relator.
(3) There being no public grievance, relator is estopped from asserting the alleged defects in the mining company’s charter.
The pleas in the case show that the defendant corporation existed as such for the full constitutional period of 30 years, and that, while it attempted to continue its life through a reorganization, that was not accomplished because the Constitution forbade. It is obvious that it is not and has not been a corporation dé jure for many years, although it has gone on conducting its business as a corporation, and claims to be at least a corporation de facto. It is certain that the life of this corporation ended when the constitutional period of 30 years expired, and it is no less certain that at that time there was under the Constitution no lawful method of extending its life or reviving it. Mason v. Perkins, 73 Mich. 303 (41 N. W. 426). It would seem as obvious that, if there was no authority anywhere to do either of these things, the same cduld not be accomplished through estoppel or laches, for it would be extraordinary if a person or officer could accomplish by recognition an act which he .was not authorized or was forbidden to do by express and unqualified direct action. See Attorney General v. Marr, 55 Mich. 445 (21 N. W. 883).
The contention that the action of the legislature at the session of 1889 after the adoption of the amendment had the effect to validate the action taken in 1882 to extend the corporate life does not appeal to us. Aside from any question of vested legal or equitable rights in the stockholders after the expiration of corporate life and the effect thereof on the validity of legislation attempting to subject interests of nonconsenting stockholders to the action of others, we find intrinsic evidence in these acts indicating an absence of such intention, as they expressly require action of specific kind to accomplish a renewal of corporate life. See Acts Nos. 129 and 142, Pub. Acts 1889. We think it unnecessary to discuss the claim that this is a de facto corporation. Eaton v. Walker, 76 Mich. 579 (43 N. W. 638, 6 L. R. A. 102).
The remaining question requiring notice is the claim that, there is no public grievance, and we may add the claim that the action of the relator is inequitable.
We cannot say that there is no public grievance when, the stockholders of a corporation continue to act as such after the limitation prescribed by the Constitution has been reached, thereby usurping powers not belonging to them. The attorney general is expressly authorized (not to say required) to file án information upon his own relation, or upon relation of any private party,—
“ When any association or number of persons shall act as a corporation within this State without being legally incorporated.” 3 Comp. Laws, § 9939, subd. 3.
In a sense there is always a public grievance when corporate powers are being unlawfully exercised, and we are of the opinion that we should not ordinarily question the exercise by the attorney general of the discretion which the law cited confides to him. We do not say that in no case can we refuse judgment of ouster, but it would be a very exceptional case that should lead us to deny such judgment to the State where the infraction of law is clear and undisputed. We do not mean to imply that there is any obligation upon the attorney general under this section to file an information when, in his judgment, there are proper reasons of policy for not doing it, or any obstacle to a refusal to do so when solicited by private persons in the furtherance of their own interests, provided State interests, do not require it. See 32 Cyc. pp. 1432, 1433.
There is nothing in these pleas that, if proved, would constitute a valid defense to the information. What judgment should be rendered may depend upon the proofs taken in the case. 32 Cyc. p. 1434. It follows that the demurrers should be sustained. A period of 30 days is allowed to defendants to file other pleadings in the cause.
Ostrander, Moore, McAlvay, and Brooke, JJ.;; concurred. | [
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Brooke, J.
(after stating the facts). It is the contention of the complainant that the language of the reservation, construed in the light of the circumstances sur rounding the parties at the time the deed was executed, should be held to mean that Parizade Moore took title, not alone to the timber then growing upon said 10 acres (all of which, it is conceded, she removed), but also to all timber that should grow thereon for a period of 30 years. It is pointed out that the homestead was without timber, and that it was doubtless intended by John Moore to provide that necessity for his wife for a period of 30 years. We find no difficulty in agreeing with complainant that this was probably John Moore’s motive in making the reservation; but, instead of using said timber as it was no doubt intended she should do, she chose, as she had a right, to go on and at once cut off everything except underbrush. The language of the reservation is clear and unequivocal, and refers in set terms to “the timber now on ten acres,” etc. It is conceded that all timber on the land, at the time the reservation was made, has been removed. The 30 years mentioned in the reservation refers distinctly to the period within which “ the same” — that is, the timber reserved — may be removed. If any doubt remained as to what construction should be given the language used — and there is none — still it should be construed most strongly against the grantor. Bolio v. Marvin, 130 Mich. 83 (89 N. W. 563).
Inasmuch as everything standing upon the land was cut except underbrush, it is unnecessary to again define what is meant by the word “ timber.” That was done by this court in the case of Huron Land Co. v. Davison, 131 Mich. 87 (90 N. W. 1034), and again in the recent case of Balderson v. Seeley, 160 Mich. 186 (135 N. W. 37).
The bill of complaint was properly dismissed, and the decree is affirmed, with costs to defendants.
Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred. | [
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Moore, J.
Complainant filed its bill of complaint, which, after the formal part, averred in substance that November 1, 190?, William A. Fraser of Port Huron deposited in its branch bank at Embro, Ontario, $1,606, for which a passbook was issued to him; that November 19, 1907, Margaret Fraser presented to the cashier of said bank said passbook and obtained the full amount of said deposit, $1,500 of which she deposited on the 23d of November in a bank at Sarnia; that December 7, 1907, she withdrew $1,490 of said money and deposited the same in defendant bank, December 10, 1907, “where she ¿has kept the fund intact up to and including this date.” Then follow averments which it is not necessary to set out. Then comes the following:
“That prior to the obtaining of said money by said Margaret Fraser, the said William A. Fraser had died; that said Margaret Fraser, his wife, fraudulently obtained from your orator the whole amount of money deposited as aforesaid; that at the time of procuring said money she falsely and fraudulently represented to the officers of said bank that when said money was deposited in said branch bank it was placed in said bank in the name of both the said William A. Fraser and the said Margaret Fraser and under an arrangement and in such a manner that both or either of them could legally draw it out; and, also, that she was duly authorized to demand and receive said money and was entitled to the same. Your orator avers that all of said representations were false and fraudulent and made with the intent and purpose of deceiving your orator and obtaining said money, and that the said, Margaret Fraser was not entitled to receive said money and was not authorized so to do, and said money had not been placed in said bank in her name or so that she could draw the same, and the officers of your orator’s said branch bank were deceived and defrauded by said false and fraudulent representations and by mistake, and relying upon such false and fraudulent representations paid to the said Margaret Fraser the whole amount of said deposit on the date hereinbefore mentioned. * * *
“Petitioner therefore alleges that the said moneys so deposited and subsequently paid to said Margaret Fraser and now on deposit in the First National Exchange Bank of Port Huron, Mich., was a trust fund as it verily believes, and that if wrongfully paid to the said Margaret Fraser by the said bank as alleged, or otherwise wrongfully paid as claimed, then the same will be wholly lost to this complainant, unless protected by the writ hereinafter prayed to be issued out of this court.
“Fifth. Petitioner alleges that the said Margaret Fraser presented no letters of administration or probate or other legal authority to the said bank as evidence of her legal right to receive the said money, and that said petitioner now seeks to protect itself by having this court come to its aid in preventing the said Margaret Fraser from dissipating this fund until her legal right to receive, have, and control the same is established, and to that end petitioner alleges that the said fund should be returned to it and be held until the said Margaret Fraser has been determined by a court of competent authority to be the person legally entitled to receive the same from your petitioner.
“Your orator avers that it is legally indebted and liable to the said William A. Fraser’s estate for the full amount of said deposit; that it will be compelled to pay such sum of money to the estate; that said Margaret Fraser is financially irresponsible, and no judgment can be collected against her; that she has no property out of which an execution can be collected, and unless the fund so placed by her in the First" National Exchange Bank of Port Huron, Mich., as above mentioned, is held to be the property of and belonging to your orator and is caused to be turned over to your orator, your orator will entirely lose the amount of the same and will lose all the money so paid to her as aforesaid.”
Then followed a prayer for an injunction and a general prayer for relief. A demurrer was interposed, and from an order overruling the demurrer the case is brought here for review.
The claim of defendant Fraser is stated in the brief as follows:
“ Complainant could obtain all of the relief to which it could possibly be entitled by bringing its suit at law against Margaret Fraser, and taking garnishment proceedings against the defendant bank, the fund, if there were any, belonging to defendant, to be held pending the trial, so that, if the decision of the court and jury was that the money did belong to the bank, its remedy would be perfect, and its right to the money in the defendant bank fixed. In other words, every issue involved in this suit could be completely and satisfactorily disposed of in a suit at law, and the questions of fact involved are those which the defendant Margaret Fraser has the right to ask to be determined in such a court and by a jury.”
To this contention it is replied that the remedy might or might not be adequate.
“It may be that there are garnishments against this fund, or the fund may have been assigned to other parties. If we had resorted to a suit at law and garnishment, we might have found that an assignment of this money had been made to some other creditor of Mrs. Fraser, who, in such action, would be entitled to a preference of the fund. We submit that we have the right to follow the fund itself, and not to run the danger of having other claims made on it that might have precedence over our claim.”
The demurrer admits the truth of the averments of the bill of complaint. We think the action of the circuit judge in overruling the demurrer is supported by 1 Pomeroy’s Equity Jurisprudence (3d Ed.), § 878; 3 Pomeroy’s Equity Jurisprudence (3d Ed.), § 1047, and the authorities cited in the notes. See, also, H. Stern, Jr., & Bros. Co. v. Wing, 135 Mich. 331 (97 N. W. 791).
The decree is affirmed, with costs.
Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred. | [
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Stone, J.
This is an action of trespass guare clausum fregit to recover for removing a certain fence in the township of Lee, Calhoun county. The defendants sought to justify under the claimed statutory authority of the defendant Stultz, a commissioner of highways, to remove the fence as an obstruction of a public highway.
The proceedings, in laying out this road, by said officer, were conceded to be regular, and that question was settled by the recent case of Page v. Boehmer, 154 Mich. 693 (118 N. W. 602). It is also conceded that the fence taken down here covered 240 rods, between lands owned by Page and the plaintiff.
The only question raised upon this record is whether proper notice to remove this fence was given, or waived. The circuit judge held that such notice was given, and directed a verdict for defendants. The plaintiff brings error. The plaintiff admits that he received a notice, in fact, the same notice that was served on Page in the former case.
The order and notice served on plaintiff April 12, 190'?, were as follows:
“County or Calhoun,
“Township of Lee.
“The undersigned commissioner of highways of the township of Lee, county of Calhoun, having ascertained that the public highway in said township, running east and west between sections twenty-one (21) and twenty-eight (28) is encroached upon the east, and where said highway intersects highway running north and south upon the north side thereof along the lands in the occupation of Jim Page, or L. A. Page, by a barn or building and a fence erected by the present or former occupant of the same, and having ascertained the within bounds or limits thereof to be upon and according to the following line beginning at a highway running north and south, and running west between sections twenty-one (21) and twenty-eight (28), and having ascertained that all that narrow strip or piece of land which lies under said obstruction or all that strip of highway is a part of said highway, it is therefore ordered by said commissioner of highways that said obstruction be removed, so that the said highway shall be open and unobstructed and of the width originally intended, which was 4 rods.
“Given under my hand this 12th day of April, 1907.
“Frank Stultz,
“Commissioner of highways, Lee.”
Notice (copy served April 12, 1907):
“To Mr.................:
“ Take notice that an order, a copy of which is herewith served upon you, has been made by me, and you are required according to the statute in such case made and provided, to remove the obstruction therein mentioned within 30 days after service upon you of a copy of said order.
“Dated this 12th day of April, 1907.
“Frank Stultz,
“ Commissioner of highways, Lee township.”
It appears, therefore, that the plaintiff had notice on April 12, 1907, of the intention of the commissioner to open the road for public travel, yet no action was taken by that officer to remove the fence until November 11, 1907.
The statute, section 4059, 2 Comp. Laws, which authorized a notice, does not give the form of notice. It provides that whenever compensation for any damages that may have been awarded, shall have been paid, or tendered to the person entitled thereto, pursuant to the statute, the commissioner may give notice to the owner or occupant, and require him, within such time as he shall deem rea sonable, not less than 60 days after giving such notice, and after the time when it shall have been determined to open such highway, to remove his fence or fences, and in case such owner or occupant shall neglect or refuse to remove the same within the time specified in such notice, the commissioner or other proper officer shall have full power, and it shall be their duty, to enter upon the premises and remove such fence or fences, and open such highway without delay, except that in townships such removal shall not be required between the 1st day of April and the 1st day of November.
It appeared that the plaintiff was supervisor, and signed the petition for the road; that he at that time owned adjacent land, and received $30 damages or compensation for the same and took it; and that his grantor of the premises in question was allowed $50, which he accepted.
The principal claim of the plaintiff is that the notice served was insufficient, in that the order and notice could not run between the 1st day of April and the 1st day of November, and that they were wholly void, for the reason that they required him to remove such fence between those times. The plaintiff quotes from, and relies upon, Kellar v. Earl, 98 Wis. 488 (74 N. W. 364), and the cases there cited, which, in construing a similar statute, seem to support his position.
It will be noticed, also, that the notice in this case required the obstruction to be removed within 30 days after service, instead of 60 days after giving such notice, as required by the statute. In this case the fence was not removed until about seven months after the notice was given. The notice was sufficient to inform the plaintiff that the highway commissioner desired the road opened, and the plaintiff had ample time to remove his fence before the commissioner, with the other defendants, proceeded to open it.
The fact that the notice was for removal within 30 days would make no difference, if the commissioner waited a sufficient length of time after giving the notice before he removed the fence, as he did in this case. We think that the same rule should govern in this case as in a notice to quit, given by a landlord to his tenant.
This court has held that a notice to quit in 14 days is as good as a three months’ notice, if no proceedings were instituted until the end of the three months. Chamberlin v. Brown, 2 Doug. (Mich.) 120, note; Hart v. Lindley, 50 Mich. 20 (14 N. W. 682); Shaw v. Hoffman, 25 Mich. 163; Hogsett v. Ellis, 17 Mich. 366. We can see no distinction in principle here. We therefore are not inclined to follow the Wisconsin rule, but to adhere to our own, which has been the law of the State for more than 60 years.
We are of the opinion that the trial judge reached the correct conclusion, and the judgment below is affirmed.
Bird, C. J., and Ostrander, Hooker, and Blair, JJ., concurred. | [
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Blair, J.
This is a bill for divorce. The parties were married May 22, 1900, the complainant, Agnes, being at that time 29 years, and the defendant 84 years, of age. Soon after the marriage the parties purchased a farm of 66 acres in the township of Ada, Kent county, from complainant’s parents for the sum of $3,000. Complainant paid $1,200 and defendant paid $1,000 of the purchase price, and a mortgage was given back for the balance of $800. The farm was deeded to complainant and defendant, as husband and wife, by the entireties. The parties continued to reside on this farm until their final separation, which occurred J une 28, 1907, at which time complainant removed to the village of Cannonsburg, where she has since resided with her mother. Defendant remained upon and still occupies the farm. Three children were born to the parties, as follows: Francis L., born October 10, 1903; Augustine, born May 18,1906; and the third child, August 17, 1907. This child did not survive its birth, which occurred some two months after the separation.
The original bill of complaint charged defendant with extreme cruelty and prayed a decree for separate maintenance. The foundation of the bill was a charge of extreme cruelty, consisting of a continued course of faultfinding, nagging, aggravating and exasperating conduct on the part of defendant, as well as abusive, profane, and indecent language, and several instances of personal violence, resulting in serious injury to complainant, and in upholding, as against complainant, ill-treatment of her by the parents of defendant. The bill was subsequently amended so as to pray for an absolute divorce. Defendant, in his answer to the bill of complaint, denied in detail every allegation of cruel treatment and claimed to have always treated his wife with the utmost kindness and consideration, and by way of cross-bill claimed the right to a decree for an absolute divorce in his favor because of alleged extreme cruelty of complainant towards him, stating in great detail in his cross-bill alleged instances of her querulous fault-finding and unreasonable abuse and annoyance of him, and numerous occasions when, without just cause or any cause, she slapped him in the face and struck him otherwise, and insisted on having in the house certain of her relatives who were objectionable to him, and whom he had ordered to keep out of his home, and, also, that she called defendant many opprobrious names and charged that his mother was a prostitute, and did all in her power to inflame and anger him.
The testimony in this case was, for the most part, taken in open court before the late Judge Wolcott. Near the close of the case a settlement was proposed in open court by counsel for complainant, and an adjournment was taken for the purpose of arranging such settlement, if possible. No settlement was arranged and, Judge Wolcott having died, the case was resumed before his successor, before whom the complainant and defendant gave some testimony. Except as Judge McDonald had the advantage of listening to a portion of the testimony of the defendant and complainant and of observing their attitude and conduct as witnesses, his consideration of the case, as ours must be, was based upon a reading of the testimony-taken before his predecessor.
The complainant testified that when others were present defendant’s treatment of her was very kind and considerate, but that when they were alone it was quite the contrary. Among the instances of trouble between herself and her husband upon which she relies, and which appear to be the most serious charges against him, we refer briefly to the following: The first trouble she says that she remembers was that one Sunday they went to church, leaving some young fowls at home which had not been taken care of, and she wished to return immediately from church to care for them; that, against her wish, her husband took her to his mother’s house and stayed there longer than necessary; that his mother had had some pictures of defendant enlarged and asked her opinion of them; that she was provoked and wanted to get home and told her mother-in-law she had no choice—
“They were all alike to me, and she was very impudent about it; she says, ‘ You have no choice ? Haven’t you no eyes in your head ?’ And I did not answer her back any more.”
That on the way going home they never spoke at all but when she asked him to get a pail of water he said he would not.
“ * * * He said he wouldn’t do anything for a Goddamned, cursed thing like me.
“ Q. Did he get the pail of water ?
“ A. No. * * *
“ Q. Called you names ?
“A. I believe he did; I am not certain, but I believe he called me a bitch.”
The next trouble to which she refers related to their attendance at a wedding, when, as she claims, her husband kept her waiting for a couple of hours after she had got her wraps on to go home. After starting for home—
“ I said to him: ‘ Frank, I wish when we get ready to go home you would go and not leave me standing around waiting for you so long,’ I said. ‘A person might better be dead than waiting around and not knowing where he was, whether he had gone.’ I don’t know what I said; something like that.
“Q. What did he answer, if anything, when you said that to him ?
“A. He said: e God-damn, old hag, I wish to God you were dead. I have never had a moment’s comfort with you since I married you.’ * * *
“Q. What else was said going home ?
“A. I told him to stop his swearing, and I slapped him with my hand.
“ Q. What did he say then, or do ?
“A. He slapped me several times going home that night. One time he threw me out of the buggy. - The wedding was about three miles from home.”
The nest trouble involving physical violence occurred when defendant’s mother was there. Complainant claimed that she was getting supper as fast as she could when defendant asked her what was the matter with her, “and after a while he swore he would put me in the poorhouse and swore: ‘By Jesus Christ, Aggie, I will put you in the poorhouse * * *’ or, ‘ I will put somebody in the poorhouse around here.’ Those are the words he used. Then I slapped him with my hand.” He then sprang up and caught hold of her neck and choked her for some time, and his mother loosened his hands from her throat and told defendant that complainant did not want her there and he better take her away.
“I told her if she was the cause of the trouble that the same roof could not be over us both, or some such words as that, and then he choked me again after that — about twice. I am not sure, but I think it was about twice that he choked me.
“Q. After you came out of the bedroom?
“A. Yes. He throwed me against the wall and slammed me down against the wall several times. Two or three times against the wall, against the floor, and the wall. * * * Then he slapped me with all his strength. * *
“Q. Now, when did the next serious trouble arise between you ?
“A. We never got along after that; there was no pretense of getting along.
“Q. No pretense of getting along at all?
“A. Frank was never even a friend to me after that.”
The next charge of physical violence relates to an occasion when defendant put complainant’s niece off the premises. He had before that time ordered the niece to keep off the premises, but on this occasion complainant had called her niece in from the road, to do an errand for her, and defendant, finding she was there, took her by the coat collar and put her off the place without, however, hurting her. After he had put her off the porch, complainant went down and put her arm around her and brought her back, and she claimed that in the struggle which ensued—
“ He seemed to strike out — he did not push or did not strike me — but he seemed to strike out at me, and I must have been going towards him, or I don’t know what I was doing.
“Q. Well, did you fall ?
“A. Yes; I fell.
“Q. On to the ground ?
“A. On my face.
“Q. When you got up were you bleeding ?
“A. Yes; my nose was bleeding.
“Q. What did you do after that ?
“A. I picked up a stone, and said: ‘I ought to hit him,’ told him 1 ought to hit him. Then I tossed the stone over and he caught it. I did not hit him with the stone. He caught the stone in his hand. * * * Later in the night he choked me. We were quarreling and he began calling my—
“Q. Later, when?
“A. The same evening.
“Q. How did that happen ?
“A. He was calling my relations dirty names that I could not stand, and I said I would slap his mouth. Something like that. And he caught my throat and pushed me up against the door and choked me. * * * A few nights after that; after I got my work done, it was late, I had a lot to do; and he — it was some trouble that came about the baby being left in the bed; the baby was sick, vomiting, and I thought that he left the baby in the bed just without any protection at all, just because he see me sitting down and wanted to give me some work to do, and I told him so, and during the quarrel he began about my relatives again, calling them some dirty ñames that I cannot remember what they are, but I know they were not— they were some bad names, and I took my elbow and hit him with it. I had the baby in my arms at the same time. I could not have hurt him. He gave me a blow on the side of the head then, right there on the side of the head (indicating).
“Q. Did it blacken your face or head ?
“A. Blackened my ear, and my head was all sore, and shoulders, from the night before; my whole side there; every bone in me there was sore and bruised.
“Q. When was the nest time after that that he struck you?
“A. He did not strike me after that.
“Q. That was the last ?
“A. That was the last time he struck me.”
The immediate cause of complainant’s leaving defendant was, as she claimed, trouble with his father with reference to the care of the baby, because of whi®h the father, who was past 80 years of age,—
“ Jumped up and run over and struck me on the head and face and tried to push me back into the dining room and gave me quite a beating at that time.
“Q. Make your nose bleed ?
“A. Tes.
“Q. Mark your face?
“A. Yes.
“Q. Bruise and blacken it up considerable?
“A. Yes; bruised me around my shoulder and arms.
“ Q. Strike you on the arms ?
“A. Yes.
“Q. On the body or breast ?
“A. I don’t remember where else he struck me; I know he struck me on the shoulders and arms and breast.
“Q. Blackened both of your eyes ?
"AA. No; I don’t think both of them were blackened.
C‘Q. Blackened one of them ?
“A. Yes, sir.
“Q. Blackened your face?
“A. Yes, sir.
“Q. That was some time in June last ?
“A. Yes; my nose was cut right down there, dented in, and sore for some time afterwards.”
On the morning of that day complainant testified that defendant’s father had struck her and she went down to the field after her husband to come up and take care of her, but when he came up he began to abuse her and call her names and abuse her relatives and call them such names as “old bastards” in the presence of his father, and in nowise took her part or endeavored to protect her.
Defendant contends that complainant was entirely in the wrong in all of these transactions and that he had done nothing whatever to justify her conduct, and the record indicates that, so far as physical violence is concerned, in most of the instances relied upon by complainant, she was guilty of the first act.
A determination of the merits of this case must depend largely upon the credibility of the complainant and the defendant. The circuit judge evidently gave credence in the main to the complainant’s version 'of the facts, since he granted a decree in her favor. While the great mass of the testimony was not given before the circuit judge who rendered the decree, the complainant and defendant were recalled and testified with reference to some of the prominent facts of the case before him, so that he possessed some advantage over us with reference to determining the credibility of the witnesses.
It is difficult to accept the testimony of the defendant as being entirely candid. As disclosed by the record, he was a large, able-bodied, powerful man, able to handle the complainant as he would a child, as the complainant must have known. Under such circumstances, it is inconceivable that complainant would have made the attacks upon him which she admits she did without any occasion therefor whatever, and we are satisfied that, as claimed by the complainant, he goaded her by his allusions to her relatives and friends, and upholding his parents against her, to a condition of rage which she was unable to control. It is clear that in many things the complainant was in the wrong and defendant was within his legal rights, as, for instance, in removing her niece from the premises; but, on the whole, we are inclined to the belief that he did this, not so much because of his desire to protect the morality of his home, as to aggrieve his wife. This is indicated by his final testimony:
“ I don’t mean to say she was a girl of immoral character or anything of that kind, but I saw her go in the barn with a young man and they were there until morning. This young man lives there in the neighborhood. I didn’t want her to come in there after they tried'to prosecute me for telling what is true about her. I know they tried to prosecute me because the prosecuting attorney wrote me a letter that I should come there.”
The defendant denied that complainant told him that his father had struck her when she came to the field in the morning, but merely that his father was interfering with the baby. We think the version of the complainant is the more probable one, particularly in view of the occurrence of the afternoon, which occa'sioned her leaving, the effects of which were visible and testified to by other witnesses. While we have no doubt that the complainant exaggerates the occurrences to which she testifies, and that she was quick to anger and had become, perhaps, morbidly suspicious, still we are satisfied that, in the main, she was endeavoring to tell the truth and narrated the things which bore against her as well as those that were in her favor. On the other hand, we are satisfied that the defendant was not candid in his statement of the facts, but was endeavoring throughout to suppress the things which might afford some justification for his wife’s conduct, and to exaggerate and enlarge upon the things which were in'his favor, as in the instance of calling the Catholic priest, the parties both belonging to that church, and stating to him beforehand the case against his wife in its harshest features without any mitigation and with a desire to have the priest, influenced by his statement, call upon his wife and advise her to keep her relatives away from the house.
We have, therefore, concluded, upon a review of the whole case, that the circuit judge reached the right conclusion, and his decree is in all things affirmed.
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Stone, J.
The plaintiffs bring this case to this court on a writ of error from the circuit court, where a jury rendered a verdict in favor of the plaintiffs in the sum of $161.95, an amount conceded by defendant to be due. The plaintiffs’ claim, which was disallowed by the jury, was about $4,500. Plaintiffs are jobbers and wholesale dealers in shoes, leather findings, and shoe store supplies, and have been so engaged for many years, having their place of business in the city of Detroit. Defendant, Joseph King, who died a few days after the judgment in this case was rendered in the lower court, and against whose executrix this suit has been properly revived, was engaged in the shoe business at Ypsilanti, Mich., and had been so engaged for many years. Jacob L. Marx, one of the plaintiffs, had known Joseph King for many years, and had business dealings with him off and on for 15 years, or possibly longer. The plaintiff Marx for a long' time, but after him Mr. Kopple, one of the plaintiffs now, then a traveling salesman, and finally Sidney Berger, another of plaintiffs’ traveling salesmen, had taken orders, from said King for goods. The plaintiffs claim that. Berger, the traveling salesman, simply took orders, and had no right to make any contracts.
It is the claim of the plaintiffs that prior to July, 1906, Mr. King had always paid his bills by checks sent direct to the house, and that after July, 1906, Mr. King, with one or two exceptions, never sent any checks direct to the house. Money that was received at the office of the plaintiffs on his account was received through the said Berger. One Clarence C. French was a bookkeeper for plaintiffs during the year 1906, and down to the latter part of 1907. It was conceded by Mr. King that from January 4, 1906, to August 31, 1907, plaintiffs had shipped to him, and he had received, goods invoiced at the sum of $16,260.30. The books of the plaintiffs, as they appeared at the time of the discovery by the plaintiffs of the transactions claimed by them to be fraudulent between Berger and the defendant, King, showed credits during the same period of $12,305.22; but the plaintiffs claim that, after the discovery of the fraud, it appears that the bookkeeper French changed the entries in the ledger to correspond with those appearing in the cashbook and journal, whereby the amount of credits was reduced $700. In other words, it is claimed Mr. King had been credited on the ledger by French, the bookkeeper, with $700 more than the cashbook and journal showed, so that the balance, according to the original entries on the books of the plaintiffs (cashbook and journal), showed a balance still due from King to plaintiffs in the sum of $4,592.08, on September 1, 1907.
The defendant, King, both in his pleadings and evidence, admitted that he had not paid the full invoice prices for the goods, but through transactions had with Berger, plaintiffs’ traveling salesman, had deducted large amounts for discounts and allowances other than those appearing on the invoices sent by the plaintiffs to the defendant; and the said King claimed the amount of the discounts and allowances added to the amount actually paid to Berger totaled the full amount of the invoice prices of the goods, with the exception of said sum of $161.95, which the defendant paid into court and admitted to be due the plaintiffs, and which was the amount allowed by the'jury.
The method of doing business between the plaintiffs and the defendant, King, was .as follows: The traveling salesman, Berger, would go to the store of King, at Ypsilanti, and take orders for goods. These orders, when so taken, would be sent to the plaintiffs, who would ship the goods to the defendant, King, at the same time sending him an invoice for the same at the prices stated in the orders, which had in all cases either one of two rubber stamps impressed thereon:
“Terms, strictly net 30 days and 2 per cent, discount in 10 days, subject to draft when due,” or “ Positively no discount allowed other than specified on bill.”
It appears that each and every invoice sent by the plaintiffs to the defendant for merchandise contained one or the other of these rubber stamp markings thereon.
Plaintiffs concede that Berger had authority to collect, and that the defendant is entitled to be credited with all the money that he actually paid Berger, whether Berger turned it over to the plaintiffs or not.
The declaration contains a special count setting up a conspiracy between King, Berger, and French to defraud the plaintiffs, and sets forth the invoice prices of the goods shipped to King, the credits as they appear upon the books of the plaintiffs, and the alleged fact that it was discovered that some of. the credits in the ledger were fictitious and raised from the amounts actually shown by the cashbook. The declaration also contained the common counts, including a count for goods sold and delivered, and a bill of particulars was filed setting forth the amount of the goods sold and delivered.
Both of the plaintiffs testified in the case, and both claimed that neither had any knowledge nor notice at any time that Berger was assuming to give King any discounts or allowances other than those named in the invoices until August, 190?, when it is claimed the fraud was discovered and that Berger made a complete confession, in which it appeared that Berger and French, acting in conjunction, embezzled moneys collected, and gave unauthorized discounts to increase Berger’s sales.
Upon the trial, the defendant, King, seemed to rely upon the following defenses: (1) He claimed that he instructed his clerk, one Minnis, in July or August, 1906, to call up the plaintiffs, and Minnis claims that he got plaintiff Marx on the telephone and asked him why the invoices came billed higher than the prices that Mr. Berger made to Mr. King, and that Mr. Marx stated that Mr. Berger and Mr. King had an understanding, and to settle with Mr. Berger, and that it would be all right. Evidence to this effect was taken under objection and exception on thp part of the plaintiffs, and Mr. Marx denied any such conversation or arrangement. (2) That Berger had given discounts to other customers of the plaintiffs which, although a fact, was shown not to have been with the knowledge of plaintiffs or Mr. King. This evidence was received under objection and exception, and will be referred to more specifically hereafter.
There were many exceptions taken by the plaintiffs upon the trial. There was a motion for a new trial, which, having been denied, exceptions were duly taken, and there are 83 assignments of error in the record. We shall not discuss all of them. They may be discussed under three headings:
(1) The admissibility of certain testimony showing the dealings of the plaintiffs through Mr. Berger, their agent, with defendant King and other customers.
(2) The argument of counsel to the jury.
(3) The refusal of the court to grant certain requests in the charge to the jury.
Assignment of error 56a involves the question as to whether it was competent to receive the evidence of the witness Minnis as to the telephone communication, which he claims he had with the plaintiff Marx, relating to the right of the said Berger to allow discounts and allowances to the defendant. The plaintiffs presented a request to charge, reading as follows:
“ The plaintiffs in this case have proved the sale and delivery of merchandise of the invoice value of $16,197.30 from January 1, 1906, to August 31, 1907. I charge you that there is no evidence in this case from which you have the right to infer that Sidney Berger, plaintiffs’ agent for soliciting orders, had any authority to give any discounts or allowances to defendant other than those stated upon the invoices.”
This request was refused, and the following language occurs in the charge of the court:
“ In this case, however, the defendant insists that in all of his large dealings with the plaintiffs they have always made him discounts and allowances; that he had a distinct understanding with Mr. Marx, the leading member of this firm of the plaintiffs, that he should have these discounts and allowances; that he refused to trade with him except upon those terms; that it was so understood by the plaintiffs; and that the plaintiffs distinctly explained and waived the conditions stated in their invoices; and that in July or August, 1906, when Mr. King raised this question over the phone through Mr. Minnis, that Mr. Marx replied that Mr. Berger and Mr. King had an understanding about the question of discounts and allowances, and that whatever settlements were made by them would be all right. Now, gentlemen of the jury, if you find from the evidence that these contentions on the part of the defendant are sustained and established, then the plaintiffs are bound by such understanding, and the defendant is entitled to your verdict, except as to the amount conceded.”
The plaintiffs insist that it was error to receive evidence of this nature, and that the court erred in refusing to give plaintiffs’ requests in charging the jury as above. It is claimed by plaintiffs that this was permitting parol evidence to alter, or vary, or abrogate, a written contract. It will be borne in mind that this claimed conversation arose at a time when defendant King’s attention was called to the fact that goods were shipped to him with invoice prices larger than those agreed upon with Berger. There is no legal objection to the receiving of parol evidence of subsequent agreement to vary, and even to abrogate, a written contract, if it were conceded that this was such contract. The rule which it is sought to apply is the well-known rule that contemporaneous parol evidence will not be received to alter or vary the terms of a valid written instrument. The distinction is plainly pointed out in the case of Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665), cited by counsel for plaintiffs. The true rule is laid down in 17 Cyc., at page 734.
In support of the rule that a subsequent parol agreement may abrogate or modify the contract, we need only refer to two or three of our own cases. Town v. Jepson, 133 Mich. 673 (95 N. W. 742). In Mouat v. Bamlet, 123 Mich. 345 (82 N. W. 74), where the parties had acted under a parol agreement which had been substituted for one in writing, and had made settlements thereunder, they were held estopped to claim under the old contract; and that the old contract had been waived. Wolff v. Alpena National Bank, 131 Mich. 634 (92 N. W. 287).
In our opinion, the question of the altering of a valid written instrument by parol, is not here involved; and we think it very clear that if the plaintiffs, pending the dealings between the parties, when their attention was called to the fact that Berger was making prices to the defendant which were below the invoice prices, stated to the agent of the defendant, intending that it should be communicated to him, that any prices or arrangements made by Mr. Berger would be satisfactory to them, and would be all right, and that the dealings continued, the defendant relying upon such statement in all the subsequent settlements that were made with Berger, the plaintiffs are estopped to claim that no such arrangement was made, or that it was not binding. When the plaintiffs referred the defendant to Mr. Berger as the person who had authority to fix prices and settle accounts, they held him out to the defendant as clothed with authority in tha.t respect. This court has repeatedly held that if one party refers another to a third person for information, as authorized to act or answer for him, he will be bound by the actions and statements of the person so referred to. Reeves v. Kelley, 30 Mich. 132; Beebe v. Knapp, 28 Mich. 53; Beebe v. Young, 14 Mich. 136; Rosenbury v. Angell, 6 Mich. 508. We find no error in this action of the court.
This brings us to the other main claim of error urged by the plaintiffs upon the trial of the case. .It appears that the court permitted the defendant to show that Berger had dealt in a similar manner with divers other par ties, in that he had allowed discounts and allowances to them differing from the invoices, and that this had been done without the knowledge of either of the plaintiffs, or of the defendant, King. This may be said of the testimony of the witnesses Leo Gruner, Fred Tagg, A. Levy, J ohn W ahr, and J ohn Lambert. This question was raised by objection and exception to the testimony, by motion to strike out the testimony, and by request to charge, and the question is presented by the 81st assignment of error.
Plaintiffs’ 33d request to charge was as follows:
“Thereis evidence in this case that Berger gave discounts and allowances to dealers other than the defendant; the evidence further shows that plaintiffs had no knowledge nor any information on the subject, nor did defendant, King. I charge you therefore that the giving by Berger of discounts or allowances to others under these circumstances may not be considered by you as a holding out by plaintiffs of said Berger as having any authority to grant discounts or allowances to King, nor as a circumstance from which King had a right to infer or believe that Berger had such authority.”
This request was refused, and the court charged the jury in the following language:
“The evidence as to the dealings of Berger with others was admitted in evidence as tending to show his apparent authority, and to characterize his agency, and as affecting the probable knowledge of the plaintiffs as to the conduct of their agent. If, in point of fact, Mr. Berger had no such authority, and the plaintiffs were ignorant of the conduct of Mr. Berger, inasmuch as the defendant had no knowledge of those transactions, it would in itself be no justification or protection to him, and his defense would fail, unless the defendant himself had express authority from Mr. Marx himself to settle with Mr. Berger according to their understanding.”
The last portion of the above charge attempts to qualify the former portion, but it is the claim of the plaintiffs that the admission of the evidence was error, and that the whole subject should have been taken from the consideration of the jury, and that it was error to submit the question at all to the jury.
The doctrine is clearly stated in 31 Cyc. p. 1331, et seq., as follows:
“While as between the principal and the agent the scope of the latter’s authority is that authority which is actually conferred upon him by his principal, which may be limited by secret instructions and restrictions, such instructions and restrictions do not affect third persons ignorant thereof; and as between the principal and third persons the mutual rights and liabilities are governed by the apparent scope of the agent’s authority, which is that authority which the principal has held the agent out as possessing, or which he has permitted the agent to represent that he possesses, and which the principal is estopped to deny. The apparent authority so far as third persons are concerned is the real authority, and when a third person has ascertained the apparent authority with which the principal has clothed the agent, he is under no further obligation to inquire into the agent’s actual authority. The authority must, however, have been actually apparent to the third person who, in order to avail himself of the rights thereunder, must have dealt with the agent in reliance thereon in good faith, and in the exercise of reasonable prudence, in which case the principal will be bound by acts of the agent performed in the usual and customary mode of doing such business, although he may have acted in violation of private instructions, for such acts are within the apparent scope of his authority.”
In 1 Am. & Eng. Enc. Law (2d Ed.), pp. 989, 990, the author, after discussing the authority which an agent has been given by his principal, proceeds as follows:
“ Beyond that, he is bound by the acts of the agent within the apparent authority which the principal himself knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. For the acts of his agent within his express authority the principal is liable, because the act of the agent is the act of the principal. For the acts of the agent within the scope of the authority which he holds the agent out as having, or knowingly permits him to assume, the principal is made responsible, because to permit him to dispute the authority of the agent in such case would be to enable him to commit a fraud upon innocent persons.”
In Mechem on Agency (Ed. of 1889), § 84, that author says:
“ It may therefore be stated as a general rule that whenever a person has held out another as his agent, authorized to act for him in a given capacity; or has knowingly or without dissent permitted such other to act as his agent in such capacity; or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent, authorized to act in that capacity; whether it be in a single transaction or in a series of transactions, his authority to such other to act for him in that capacity will be conclusively presumed, so far as it may be necessary to protect the rights ■of third persons who have relied thereon in good faith, and in the exercise of reasonable prudence, and he will not be permitted to deny that such other was his agent, authorized to do the act that he assumed to do, provided that such act is within the real or apparent scope of the presumed authority.”
It would seem that we need not go outside of the decisions of this court upon this question. They have been so numerous, and have arisen under so many different circumstances, that they seem to cover the entire field. Jewett v. Bryant, 159 Mich. 345 (123 N. W. 1097); Davis v. Kneale, 97 Mich. 72 (56 N. W. 220); Wierman v. Sugar Co., 142 Mich. 422 (106 N. W. 75).
In the last-named case Justice Grant said:
‘ ‘ The apparent power of the agent is to be determined by the acts of the principal, and not by the acts of the agent. * * * No act of the principal in this case appears upon the record to show that it clothed its agent with authority to pledge its liability to pay the debts of third persons. The evidence here is one of original authority. There is no evidence of ratification.”
See, also, Heffron v. Armsby, 61 Mich. 505 (28 N. W. 672); Barry v. Insurance Co., 62 Mich. 424 (29 N. W. 31); Verdine v. Olney, 77 Mich. 310 (43 N. W. 975); Leo Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50, 34 Am. St. Rep. 350); Hirschmann v. Railroad Co., 97 Mich. 397 (56 N. W. 842).
In Clark v. Dillman, 108 Mich. 627 (66 N. W. 570), Justice Hooker said:
“ It is undoubtedly the law that a person may be bound by the representations and acts of another, as agent, where there has been such a holding out as to reasonably lead one dealing with him to believe in the existence of such agency. But all of the elements of an estoppel must be present. There must be conduct calculated to mislead, and it must be under circumstances which justified the claim that the alleged principal should have expected that the representations would be relied and acted upon; and further, it must appear that they were relied and acted upon, in good faith, to the injury of the innocent party.”
In all of these cases the action of the agent had been brought home to the principal, and recognized and ratified; and it appeared that the other party had relied upon the apparent authority, and had acted in good faith. Many authorities in other States may be cited. Gallinger v. Traffic Co., 67 Wis. 529 (30 N. W. 790); Law v. Stokes, 32 N. J. Law, 249 (90 Am. Dec. 655); Edwards v Dooley, 120 N. Y. 540 (24 N. E. 827); Olcott v. Railroad Co., 27 N. Y. 558 (84 Am. Dec. 298); Beattie v. Railroad Co., 90 N. Y. 643; Creighton v. Finlayson, 46 Neb. 457 (64 N. W. 1103); Brown v. Eno, 48 Neb. 538 (67 N. W. 434).
In the light of these authorities we feel compelled to hold that the court erred in receiving this testimony and allowing it to go to the jury. Especially is this true with reference to the testimony of the witnesses Gruner, Tagg, and Levy. The testimony of John Wahr and John Lambert, in so far as it contradicted the testimony of plaintiffs and showed admissions made by them, was admissible for that purpose, and should have been so submitted to the jury. But we are constrained to say that neither for the purpose of showing apparent authority, nor as characterizing the employment, was it proper to submit this evidence to the jury, and in our judgment it was reversible error to do so.
We have read this record carefully and find no other error worthy of consideration. The'main charge of the court finds support in our own decisions; and in Leo Austrian & Co. v. Springer, supra, many of the principles are discussed which are embodied in the charge. We find nothing in the conduct of counsel in the argument of the case that is worthy of consideration, but we feel compelled to reverse the case upon the error pointed out.
Judgment reversed, and new trial ordered.
Bird, C. J., and McAlvay, Brooke, and Blair, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). The question in this as in all similar cases is whether the writing produced as evidence of the agreement purports to contain all of the terms of the contract. In a particular case, as, for example, Electrical Appliance Co. v. Standard Electric Co., 151 Mich. 662 (115 N. W. 982), it may appear upon the face of the writing that some term has been omitted. In Beld v. Darst, 146 Mich. 143 (109 N. W. 275), a majority of the court, in view of peculiar circumstances recited in the opinion, sustained the ruling of the trial court admitting testimony of a parol contemporaneous agreement of the parties, although the writing relied upon as evidence of the principal agreement appeared to be complete. In the case now presented it is apparent that Mr. French, representing Mr. Berry, and the representative of the Detroit River Transit Company, had orally agreed about the sale of the hoist — had made a bargain — before any letter was written. It seems to be quite as apparent that the only purpose which the immediate correspondence served, or could have intended to serve, was to state, in writing, the terms of the bargain as between the principals thereto. Mr. Berry advises the vendee that he is stating the terms of the agreement as they had been reported to him by his agent. There is no apparent ambiguity in the language employed. No warranty or representation is referred to. On the contrary, the language aptly affirms the absence of conditions or warranties, express or implied, and the understanding that the vendee took the property as it stood; that is, in the condition in which it was found, and that delivery was made on the river front on his land. The understanding of the terms of the sale, as thus expressed, is declared by the vendee to be his understanding also. In terpretation of the agreement, thus evidenced, is not affected by the fact, if it was a fact, that the vendee had taken possession of the hoist or by the fact, if it was a fact, that Mr. Berry had transferred the check before the correspondence was concluded. The last letter appearing in the correspondence of the parties cannot be treated as an admission of the. facts stated in the one to which it is a reply or as the vendor’s interpretation of the meaning of the words used in his first letter. And it was followed by action on the part of the vendor which negatives any such idea.
The court below made a proper disposition of the matter, and the judgment is affirmed.
Bird, C. J., and Hooker, Blair, and Stone, JJ.a concurred. | [
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Campbell, J.
Plaintiffs in error were sued by defendant in error before a justice, and pleaded a tender, and paid the money tendered into court. The case was tried by jury who found a verdict ipr the precise amount of the tender, for which the justice entered judgment, and gave costs against defendants below. They sued out a certiorari claiming that they should have been allowed costs in their favor. The justice made a return showing conclusively that the only basis of the judgment was the amount tendered, and there was no conflict of testimony on the fact of tender, and the precise amount' due, had no tender been made, would have been slightly greater. The circuit court affirmed the judgment and error is brought.
It is impossible to read the return and account for the judgment except on the theory 'of a tender proved. It is suggested that the jury may not have found that this was before suit brought, but we cannot assume they disregarded the proofs made and acted on something different.
The statute, §§ 6180, 6181, expressly provides that in such a case the defendant shall pay no costs accrued' after tender, but shall recover them. This is inconsistent with any discretion in the matter, and the statute allowing the circuit court when affirming a judgment in part and reversing it in part to give costs in its discretion cannot apply where the judgment, although in form given against defendants for damages was in fact in their favor as maintaining their plea. And the statute preventing a reversal for improper allowance of fees by a justice (§ 5479) does not cover a case expressly governed by another statute, for costs generally, where the question does not come up on particular allowances which the justice had power to consider.
The judgment of the circuit and justice’s courts must be reversed as to the allowance of costs and plaintiffs in error must be allowed costs of all the courts.
The other Justices concurred. | [
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Campbell, J.
This is a bill filed for partition. As some questions are presented touching various classes of interests it will be necessary to refer to the substantial averments of the bill as bearing upon each. The court below on demurrer-dismissed the bill absolutely.
It avers as to the fee of the land, that it was owned by Phillis Eberts who died testate and devised the land to the-children of her three brothers. Those children are all named, and are eleven in number. Four of them are represented by the complainants, and seven are alleged to have assigned to Aaron C. Fisher, who is said to hold seven-elevenths.
The objection that this showing is not definite enough is of no force. "Where a devise is made to several persons, all standing in the same relation to the devisor, they are presumably equal holders. As the bill distinctly states that Fisher holds seven-elevenths, his interest is sufficiently averred independently, and as complainants claim the rest, the bill would be good for their interest as a union of four-elevenths, even if not otherwise full. But we think each is shown to hold one-eleventh.
S. Dow Elwood is averred to claim a lien for city paving taxes in the shape of a redeemable lease which, if not redeemed, will create a lease for years of a part of the lot. It ■ remains inchoate until 1881. The bill shows that if the lien is valid, defendants are bound to pay it.
The statute does not require the holder of such liens not yet absolute to be made parties. Comp. L. § 6214. It is nevertheless admissible and proper to bring him in, and in case of non-redemption it can be made chargeable to defendants on the final arrangements in such manner as the ultimate form of the relief given may render proper.
The only other matter referred to is a lease, which defendant Aaron C. Fisher in his own right, and Aaron C. Fisher and John H. Yan Sehoick as executors of Elam Fisher, once owned and still claim to own, of the whole premises. Upon this some distinct points are presented.
In the first place it is insisted that if there is such a lease outstanding, complainants have not “ an estate in possession” in the land as required by § 6268 of the statute. It is to be borne in mind that the lease, if existing, is a lease in which they are landlords, and not strangers.
There is no authority for holding that an estate in possession means an estate occupied in person and not by tenant. It means merely an estate in present enjoyment, and whether occupied by tenants or entirely unoccupied is equally within the statute. In Campau v. Campau 19 Mich. 116, it was explained that the statute was not intended to introduce new rules of partition. In a great majority of the early partition cases the estate included many tenants, and in several in stances one or more entire manors. It has been held that so far from being obstacles in the way of partition, it is not always necessary to make tenants under leases parties at all. O’Reilly v. Vincent 2 Malloy. 330; Agar v. Fairfax 17 Ves. 533. It is not important now to consider how far it would be proper or necessary to refer to the lease if it had been in the hands of strangers. As one of the tenants in common is also one of the lessees — if not the only one — it is more convenient for all parties, and will save circuity of action, to consider all of his claims together. But it cannot be maintained on any principle that the jurisdiction depends upon it.
Inasmuch as the rights and obligations of the tenants under the lease are collateral to the regular issues in partition, the allegations on that subject, whether correct or incorrect,cannot be the ground of demurrer except on the part of the tenants themselves, and Aaron C. Fisher in his own right had no footing to take such objections to the partition. But being collateral there can be no legal objection to averring or establishing any facts which would determine the relative interests of all the parties. And in this point of view any facts which bear upon the termination of the lease by forfeiture or otherwise are pertinent, because the object of the bill is not in any proper sense directly to enforce a forfeiture. It is to determine the right to a partition and the extent of the property to be partitioned. There is no rule that equity will not recognize a forfeiture, when it is only one of the incidents of a past transaction.
Ye do not, however, regard the bill as even seeking to reach this end. As we read it, the questions of forfeiture are superfluous. It shows a lease on various conditions and that some of those-conditions were broken and entitled the lessors to re-enter. But the lease expired by its own limitation befere the bill was filed. Unless renewed it has lost any efficacy. The bill claims it has never been renewed and shows no facts to the contrary. It may therefore be considered, taking the whole bill together, and until something else appears, that this lease is out of the case for most, if not for all purposes, except that of charging the El wood lien on Fisher’s share.
If defendants desire to rely on the lease it will devolve on them, therefore, to make by their answers such averments as they think necessary to maintain their interests, so that, whether the property is partitioned or sold, all the equities may be adjusted in the land or its proceeds.
The demurrer was improperly sustained., The decree dismissing the bill must be reversed with costs. The case must be remanded to the court below that the defendants may answer on payment of costs within twenty days after notice of this order, in accordance with Rule 26, unless further time is granted by the court below.
The other Justices concurred. | [
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Graves, J.
It seems to have been the substantial purpose of this bill to obtain a construction of certain provisions of the will of Michael Hogan, in respect to which the parties have put forward conflicting claims. A copy of the will is set forth in the margin.
The contention has arisen on the following clauses:
“I also bequeath the rest of my real estate lying on section 15, town 8, range of 5 west, being in Ionia comity, to my brother Patrick Hogan’s son James and also to my brother John Ilogan’s son James. The said real estate shail be sold when they become of age and the money divided equally between both of them. My wife, Hannah; is to have fire-wood of five acres of the south-east corner. My wife, Hannah, is to have control of these 82 acres on section 15, town 8-, range of 5 west, until these children become of age.”
The position on behalf of complainants is that, apart from the right to obtain fire-wood on five acre's as given and subject thereto, tbe entire beneficial interest in the tliirty-two acre parcel was herein devised to them and vested immediately on the testator’s death, and that the widow acquired no interest in the premises or any right to the usufruct, and that the testator, in putting in her hands the control of the laud during the minority of his nephews, only intended to commit the care and management of the property to her during that interval for their exclusive benefit. The court below accepted this theory and decreed accordingly. We cannot assent to this view. Neither the general scheme of the will, nor anything in the provisions other than those in question, nor any outside matters which can be consulted, lead to any such inference or suggest any such interest.
The state of things which the testator must have contemplated presented no reason for requiring an arrangement of that kind. On the contrary, the surrounding conditions were unfavorable to it. He undoubtedly considered that this intended bounty to his nephews would not fall in until they attained majority, and would then be realized in the form of money, through conversion of the land, and that during this interval they would have no interests needing bpecial attention; that having devoted the land to their future benefit, he would allow his widow to hold it under hex-exclusive and beneficial contx-ol in the meantime. It could not have been lxis intention to impose on her the burden of managing, leasing and taking care of this land for a series of years for the ease and profit of his nephews.
His meaning in the provisions relative to hex-, so far as it can be gathered from the tenor and spirit of the will, was obviously to confer benefits, and we look in vain for anything indicating the existence of a wish or thought to inflict on her any needless labor and responsibility, and we think the effect of the gift to the nephews, and that of eoixtrol to his widow, was to give to the nephews the entire interest, sxxbject to the gift of fire-wood and subject to her exclusive and beneficial right of enjoyment for the period during which their right of enjoyment is postponed. Having bx-iefly explained our impressions on the mex-its, it remains to observe that serioxxs objections have been urged to the jurisdiction, although both sides have pressed for intimations sufficient or likely to be sufficient to foreclose further contention.
The defendants’ counsel has argued that the alleged grievance of complainants was cognizable at law and that no sufficient case had been made for equitable redress, and this position appears so forcible that instead of proceeding to make a declaratory decree, we shall content ourselves by reversing the decree below and dismissing the bill with the costs of. both courts to defendants.
The other Justices concurred.
“ *In the name of God, I, Michael' Hogan, being in good bodily health and of sound mind and memory, being desirous "of settling- my worldly affairs, and directing how these states, for which there has pleased God to bless me, shall be disposed of after my decease, this my last will and testament. And first I commend my immortal being to Him who gave it, and my body to the earth. My will is that all my just debts and funeral charges shall by my executors.
F'mt. I give, devise and bequeath to my wife, Hannah Hogan, the west half of my real estate on section 22, town 8, of range 5 west in Ionia county, it being my_ residence, to have and to bold during her lifetime and after her death it goes to my brother Dennis, and in case he should die before her it then shall go to his heirs. I also bequeath to my wife, Hannah Hogan, all my personal property of whatsoever name or nature, and also all the growing crops now on the ground except 30 bushels of wheat that shall he given to my mother. I also bequeath to my brother, Dennis, the east half of my real estate on section 22, town 8, range of 5 west. My wife, Hannah, is also to have the use of half the big ham and the other half to my brother, Dennis.
And I also bequeath the rest of my real estate lying on section 15, town 8, range of 5 west, being in Ionia county, to my brother Patrick Hogan’s son, James, and also to my brother John Hogan’s son, James, the said real estate shall he sold when they become of ago, and the money divided equally between both of them. My wife,- Hannah, is to have fire-wood of five acres of the south-east corner. In consideration of what I give my brother Dennis, he is to provide for-my mother during her lifetime. My wife, Hannah, is to have control of these 32 acres on section 15, town 8, of range 5 west, until these children become of age. I do nominate and appoint John Cabalen and Thomas Pox to be the executors of my last and testament.
“ Witnesses, his
“ John Cahaiot, MICHAEL X HOGAN.
“ John McKblvy. mark.
“North Plains, July 7, 1877.” | [
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Graves, J.
The plaintiff in error holding an execution against Eoe made seizure of a small quantity of shingles and building lumber and Eoe replevied the same before a justice of the peace, and obtained judgment. Hutchinson appealed. The only controverted question was whether the property was liable to execution under the exemption laws ; and the circuit judge being of opinion that the evidence was incapable-of any other construction, and was conclusive in Noe’s favor, directed the jury to find for him, and they did so.
It was proved that his trade was that of carpenter and joiner; that his wife owned a city lot in Lansing ; that he was engaged in putting up a dwelling-house on it for their future home; that they had no homestead elsewhere; that he owned a kit of tools worth $75, and the building materials in question, which were worth less than $100, and owned no other tools, stock or material connected with his trade and business. He was about working this stuff into the house before mentioned and part of it was lying on the lot and the rest in the street in front of it, and a portion 'was already framed and fitted for‘use.
It is needless to speculate on the suggestion that the property had perhaps become constructively devoted to the purpose of a homestead and appropriated to an end which exempted it under the Homestead Law, because it is clear enough that it was exempt by the statute applicable to exemptions of personal property. It was stock or material to enable Noe to carry on his trade of carpenter and joiner, and hence the conclusion which the court reached was entirely proper. The facts were undisputed and they authorized no other result.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
The question in this case is, whether one who becomes intoxicated in a saloon, upon liquor there sold to him by the keeper, and who while in that condition has his pockets picked, may maintain an action against the keeper to recover the money taken from him ?
The question arises under Act No. 193 of 1877 commonly called the police, act, the third section of which provides among other things that “ every wife, child, parent, guardian, husband or other person, who shall be injured in person and property or means of support, by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented or malt liquors to any person, shall have a right of action in his or her own name against any person or persons who shall, by selling 01 giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury.”
The question is one of the construction of the statute. Is the person to whom the liquor is sold, etc., and who in consequence sustains an injury, one of the persons for whose benefit the statute is passed ? The circuit court was of opinion that he is.
So far as the statute attempts any enumeration of persons who may sue, they all stand in some one of the domestic relations to the person to whom the liquor is sold, given or furnished. To that extent the statute unquestionably contemplates that there shall be three persons concerned : the person selling, giving or furnishing, the person receiving and causing an in jury, and the person injured. But there might .be,other cases equally meritorious with these (see English v. Beard 51 Ind. 489 ; Bodge v. Hughes 53 N. H. 614); and therefore after enumerating wife, child, parent, guardian and husband, the statute extends the right of action to other persons injured. Does it intend among the other persons who may sue to include the person himself whose intoxication causes or is the occasion or reason of the injury?
Doubtless the statute might have extended its benefits to the intoxicated person, but if such were the intent it is surprising that it was not distinctly and unequivocally expressed. It was as easy to designate the party himself as it was his wife, child, guardian, etc. Moreover the man himself may generally, be supposed to be injured in some degree by intoxication, so that his case would furnish the most frequent occasion for'a suit if he should see fit to resort to legal pro ceedings. It would be very remarkable that a statute in enumerating the persons who should share in its benefits should omit to name the very one who would most often be entitled to its aid. But it is a sensible and well understood rule of construction that when after an enumeration, the statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named. Hawkins v. Great Western R. R. Co. 17 Mich. 57; McDade v. People 29 Mich. 50, and cases cited. Apply this rule here, and the party intoxicated is excluded. The persons enumerated are persons who stand to him in special relations, and it is therefore to be assumed that “ any other person ” who may sue must also stand to him in some special relation so as to be injured by his intoxication or by the sale, etc., to him. A creditor might perhaps stand in that relation under some circumstances, or a contractor, or servant, or the master of a vessel, or a traveler passing him in the street, and so on. But he could not stand in any such relation to himself, and therefore cannot be understood as embraced in the terms, “ wife, child, parent, guardian, husband or other person,” injured in person, property or means of support by himself, or by reason of his intoxication or by the sale, etc., of intoxicating drinks to himself. The statute evidently contemplates three parties — seller, receiver and injured-party — in all cases.
It is possible that the facts of any particular case may be such as to connect the saloon keeper with the injury or loss in such a way as to give a right of action at the common law. What we have said above has no reference to or bearing upon such a case.
The judgment must be reversed with costs of all the courts.
The other' Justices concurred. | [
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Cooley, J.
The substantial question involved in this case is, whether the plaintiff in error was entitled to make certain charges which were insisted upon for the running and booming of logs for the defendants in error. It seems that the company, having a boom on the Pere Marquette lake, and being engaged in running logs on Pere Marquette river, had run and boomed logs for defendants in error for several years. The most of the company’s charges were paid, but some were disputed; and having at length refused to deliver certain logs until the charges were satisfied, the defendants in error replevied them. The replevin suit is the suit now before us. It seems to have been determined in the circuit court that all reasonable charges had been paid.
The statute under which plaintiff in error is organized (Comp: Laws, ch. 88) empowers the company, “ in all cases where no rate is fixed by contract, to charge and collect a uniform and reasonable sum for boomage,” etc. § 14. As bearing upon the question whether more than a reasonable sum had been charged, the company gave evidence'tending to show that the real estate employed by them in their business was of the value of ninety thousand dollars, and their personal estate of the value of ten thousand dollars. The real estate consisted of the booming ground in Muskegon lake and the adjacent shore, and this shore appears formerly to have been a marsh, or perhaps was covered by the waters of the lake. In answer to this showing defendants in error gave evidence tending to show that the value of the boom company’s personal property was merely nominal. They then offered to show that the land of the company, which was supposed to be so valuable, was in fact within the meander line of Pere Marquette lake, as surveyed under authority of the general government. This being objected to, the counsel offering it explained the object to be to show that the land, appearing by the survey to be a part of the lake, and having since become made land, it now belongs to the United States. After this explanation the court received the evidence.
The ruling was erroneous. It has been repeatedly decided in this State that private ownership of lands bounded on navigable fresh water is not restricted to the meander line. Lorman v. Benson 8 Mich. 18; Bay City Gaslight Co. v. Industrial Works 28 Mich. 182; Maxwell v. Bay Gity Bridge Co. 41 Mich. 453. If it were held that the owner of the bank did not also own the land within the meander line, it would belong not to the United States, but the State, (Pollard, Lessee v. Hagan 3 How. 219,) and it is notorious that the State never questions the right of the owner to the shore, but always concedes it.
There seems to have been on the trial great difficulty encountered by both parties in fixing upon any standard whereby to measure the reasonableness of the boom company’s charges. Both sides deemed it admissible and important to take into account the real estate made use of by the company in its business, upon the theory that upon the cost or the worth of this the company was entitled to reasonable returns, which would only be received through charges for boomage. The plaintiffs contended, however, that the real estate was to be treated simply as so much of the company’s capital, representing the money it had cost, while the company claimed it was to be considered capital according to its present value.
There is a difficulty in measuring the value of booming ground, growing out of the fact that it is commonly of little worth except for the particular business, and for that business the value is likely to be estimated by the profits resulting from its use. These profits depend on the charges for boom-age ; and if those are excessive the apparent value of the land will be very great. If then the reasonableness of the charges is to be measured by the apparent value of the land, the more excessive are the charges, the easier it will be to establish their apparent reasonableness, and the value of the land would go up jpa/ri passu with the exactions. This could never be allowed.
The charges of a log-driving and booming company are charges for labor and responsibility only, except that the company' must provide for itself the conveniences for making the labor available to accomplish the desired purpose. In this particular the company is on a like footing with persons engaged in many other employments ; hackmen and draymen for example, whose charges in the main are for services, but who must have some capital, and must take this into account in estimating charges. But in the case of the boom company, the capital must generally be a subordinate consideration ; the principal matter'to be taken into consideration being tbe value of the services and a fair compensation for the responsibility assumed. But it is proper to take into account the value of all property necessarily made use of in the business; not necessarily the cost, and not necessarily any factitious value which their charges may have given to it; but the fair market value, arrived at with' all such aids as the circumstances afford. The fact that booming ground is generally of little value for any other use, and the consequent difficulty in estimating the market value, renders it important that considerable latitude should be allowed in putting in evidence. No doubt it would be proper to show the cost of the ground to the company, as bearing upon the question of value, but not conclusively fixing it.
The case shows, however, the importance of some legislation for fixing the charges, either by statute directly, or by some board or local authority empowered for the purpose. The objections to leaving such charges to be measured by the discretion of the company itself, or by the uncertain judgment of successive juries, are very manifest.
Judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Cooley, J.
Durham sued McClatchie in justice’s court, declaring generally on the common counts in assumpsit and on the following promissory note :
“ $64.00 Pentwater, February 11, 1871.
“For value received I promise to pay to E. Stanhope or bearer the sum of sixty-four dollars on or before the first day of June next.
“ Georoe C. McClatchie.
“ Jehiel V. Durham.”
The peculiarity of the claim upon this note is- seen to be that defendant was joint maker with plaintiff. The suit was instituted on the fifth day of July, 1879, so that all remedy upon the note would then have been barred for more than two years but for payments which McClatchie had made upon it, and which had satisfied more than one-half of it. There was no showing that Durham had anything to do with these payments, ' and therefore the note could not have been enforced against him by any holder.
' On the trial Durham established an account against Mc-Clatchie to the amount of four, dollars. He also showed that he signed the note as surety merely for McClatchie, and that in March, 1878, after the note had ceased to be an obligation against himself, he purchased it, giving his own note for twenty dollars in payment. The defendant then produced and offered the twenty-dollar note as a set-off. The justice disallowed the claim of the plaintiff on the first note, on the ground, apparently, that one could not sue on a note of which he was a joint maker. He then allowed the defendant’s set-off, deducting therefrom the account of four dollars, and rendered judgment for the balance in favor of defendant. The plaintiff removed the case by certiora/ri to the circuit court, where the judgment of the justice' was reversed. The defendant then brought the case here.
We do not think the question whether the plaintiff could sue on the note he had signed for McClatchie was a vital one in the case. He certainly had a right to take up the note, and then to sue McClatchie for the amount paid as money paid to his use. His. declaration was suited to the case, and the fact that he had declared specially on the note was immaterial. It is true that he may have had a good defense to the note before he purchased it, but he was under no obligation to plead the statute of limitations, and McClatchie could not complain of his paying the note since McClatchie indisputably was still liable upon it. Plaintiff therefore made out a clear right of recovery for the two sums of four dollars and twenty dollars. But the defendant by producing and tendering as an offset the note of twenty dollars given in purchase of the other, reduced the amount plaintiff was entitled to recover to four dollars. Por this he should have had judgment.
On certiormi the circuit court is required to give judgment “ as the right of the matter may appear’, without regarding technical omissions, imperfections, or defects in the proceedings before the justice, which did not affect the merits.” Comp. L., § 5477. It should therefore have reversed the judgment the justice had rendered in favor of the defendant, and given one for the plaintiff for the amount he had established. If Durham had brought the case here we might have given him the proper judgment, but as he does not complain of the judgment in the circuit court, and it was only too favorable to McClatchie, we have only to affirm it. Durham will i’ecover costs of all the courts.
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Campbell, J.
The bill in this cause was originally filed to obtain the revival and establishment of a policy of life insurance, issued January 20, 1874,'for $5000, on the life of Benjamin F. Tabor, now deceased. The policy was issued to Sarah A. Tabor, his wife, and payable to her, or in case of her death to their children. The premiums were payable annually. In every instance notes were taken signed by Benjamin F. Tabor, the last note being for the premiums of January 20, 1877. This note was dated January 20, 1877, and was payable at six months for $179.97, with interest at ten per cent. It was not paid at maturity, and was extended to November 1, 1877. When this note was given a renewal receipt was delivered, acknowledging payment of the premium.
On the 7th of December, 1877, one Yanderburg, an agent of defendant, called on Benjamin F. Tabor and procured a delivery up of the policy, on a claim that it was forfeited, and a paid-up policy was sent to him for $265, which is claimed to be the surrender value of the first policy after deducting the premium note and interest. This was sent to Mr. Tabor a few days after the old policy wa's given up. The bill was filed on the 13th of February, 1878, after tender of full premium and of the substitute policy, and refusal by defendant to restore the old one.
The bill claims the surrender of the first policy was obtained by improper means and under circumstances indicating actual or constructive fraud.
It appears that all the negotiations were had between Vanderburg and Benjamin F. Tabor, and without any dealings with Mrs. Tabor, and without procuring her signature to the surrender, and that the'new policy was sent to her husband and not to her. The original policy was in her hands and handed over by her when Vanderburg and her husband met at the house to get it. But she was not treated as having anything to say about it, or as having any right to be consulted or dealt with. At the time of its surrender she was only informed in a very general way that it was forfeited, and that the only thing to be done was to take a paid-up policy for such sum as would' be fixed by defendant.
The defense is based on two principal grounds, first, that the surrender was voluntary, and second, that there was injurious delay before suit brought.
Upon the most important facts there is not much dispute, although upon some things the discrepancies are more serious. Much of the testimony was taken on a legal theory of defense which is now abandoned, leaving the substantial controversy much narrowed. v.
It was at first claimed, and the defense was originally chiefly rested on the claim, that when the policy in dispute was given up it had been already forfeited, and the surrender was all that the insured could desire. But in the case of Mut. Ins. Co. v. Bowes 42 Mich., 19, it was held in a similar case arising out of a policy issued by the present defendant, that the acceptance of note and giving renewal receipt, as in the case before us, operated as a complete and not as a conditional payment of premium. And it is not now seriously contended that there was anything unpaid or any forfeiture of the policy now litigated. The defense, therefore, is‘ brought down to a surrender made under a mistake of law, but which- is l'elied on as intentional and binding.
Before considering the facts it is perhaps desirable to look at the condition of things as assumed by the defense to have existed on the theory of non-payment. It is admitted in the ■answer and there is no. doubt of the fact that the time of payment of the premium note was extended until November 1, 1877, and that up to that date there was no default which could have caused any forfeiture. By section 2952 of the Compiled Laws, it was provided that no policy should become void by reason of unpaid premiums, but that a paid-up policy should be issued to the party in default applying for it, for a value to be ascertained according to the age of the insured, under the “ American.Experience” tables : and liability was to cease if application was not made to the company within one year after default.
Regarding the payment as in default January 20, 1877, the parties had until January 20, 1878, to apply. If reckoned, as it would have been, from November 1, 1877, then they would have had until November 1, 1878, long before which time Benjamin E. Tabor died, and the right to a money payment matured. There was not on any theory any pressing reason for haste. Upon the theory on which the company appears to have acted no premium was earned for 1877, and the adjustment which took out the whole premium note and ten per cent, interest from its date was incorrect, on any theory. No data are given in the record from which it can be determined on what basis the paid-up policy was calculated, so as to give its precise and proper value. This was not dwelt upon on the argument, as the case was put upon the general equities. It is not, therefore, important except as having some bearing on the methods by which the surrender was brought about.
The facts, as they appear to us as fairly drawn from the evidence, so far as material, indicate that prior to December 7, 1877, neither Mr. nor Mrs. Tabor had any idea that they were not fully protected by the policy, or that the premium was not paid by Tabor’s note. Mr. Tabor’s health had been failing for some months, and was getting worse. His illness was such as to affect seriously his nervous system, rendering him despondent, and impairing his capacity for work and for ¡resisting importunity.
On the 7th of December Yanderburg called several times during the day at the clerk’s office of Lenawee county (Tabor being county clerk), and said he would call till he found Tabor alone, which he did about five o’clock in the afternoon, lie then told Tabor he was round gathering forfeited policies, and that Tabor’s was forfeited. Tabor stated his understanding that it was not forfeited under the arrangements that had been made. Yanderburg assured him it was forfeited • that the Insurance Commissioner refused to allow notes as assets in making up their balances, and they had therefore been obliged to cut down their capital. He further represented that a great many were surrendering their policies, among others Leonard H. Bailey and Fred. A. Sanders, as well as himself in part. Tabor insisted he did not wish to surrender, but wanted to keep it paid up as he had done thus far. Yanderburg told him he could not do so ; that it was already forfeited; and wanted him to surrender it that night. Tabor wanted time to think and to advise with some one. Yanderburg told him he must have it then, that he would have to deliver it up so that he could get a paid-up policy. To Tabor’s repeated remonstrances he replied by further itrgency and assertions of forfeiture, and refusal to accept payment of the note, or do anything but receive the surrender. When asked how much the paid-up policy would be, he said he did not know, but that the actuary would figure it out. They thereupon went to Tabor’s house, when Tabor told his wife Mr. Yanderburg said the policy was forfeited and good for nothing, but that if given up, a paid-up policy would be issued. She got the policy and Tabor signed some endorsement on it and gave it to Yanderburg. Yanderburg made no statements to Mrs. Tabor, but heard what was said by her husband. All the parties seem to have acted on the idea that she had nothing to say in the matter, and that her husband was the .person to deal with. She was surprised and could not understand how the policy was forfeited, but assumed her husband and Yanderburg knew how things stood.
Yanderburg represents it differently, and that he first applied to have the note paid, and told Tabor if not paid he must surrender. There is some testimony from other witnesses indicating that Yanderburg knew that Tabor’s life had become precarious, and that he took these steps to save the company from having to pay a loss of $5,000 which was likely to accrue before very long. We are satisfied that the story told by Tabor is true. We are satisfied also that Tabor would have paid the note rather than risk the policy, and that he had reason to think it would not be pressed until Yanderburg’s visit.
It is not pretended by Yanderburg that, he had any talk on the subject with Mrs. Tabor. So far as she was concerned she acted under the immediate pressure of an assurance without explanation that the policy was forfeited and that a surrender was necessary to save anything. So far as Tabor was concerned it is equally manifest that he was driven by the false statements and urgency of Yanderburg into acting without advice and accepting as true what was not true. For it was not true that the Commissioner would not have recognized or allowed Tabor’s note, and it was not true that policies had been surrendered by the parties named. And it was also not true that any forfeiture had been incurred, or that if there had been, it was a matter in which there was any urgency, or anything to be lost by delay. In Tabor’s condition he was not capable of standing up against the sort of pressure that was brought to bear on him, and taking advantage of his infirmity was itself fraudulent and unconscionable.
There was no consideration whatever for giving up a valid policy and getting back nothing more than would have been a matter of right in case of actual default, and it cannot be imagined that any such arrangement would.have been made unless under some gross mistake, whether brought about by fraud or not. There is no foundation in fact for any claim that there was either bargain or settlement willingly or understandingly made. And so far as Mrs. Tabor is concerned there is no testimony in any way .tending to show that her consent was either asked or given. She used no judgment in the transaction.
If this had been a mutual mistake of law, and there had been the ordinary surroundings of a fair contract, the’ application of the rule that relief will not be granted against such mistakes might not be improper. But this was not a deliberate arrangement, nor was it supposed to be a compromise. It was submission to an unlawful and unjust claim, under circumstances of urgency and undue pressure, and upon false statements of fact. There can be no doubt that Tabor yielded against his will, and that Yanderburg meant to and did drive him into yielding by pretenses well calculated to deceive him and throw him off his guard. What he did was reasonable if what Yanderburg said was true. Having been defrauded in fact, the question is whether the fact that if he had known the law he would probably have done otherwise, puts the ease beyond redress.
The doctrine which makes parties bear the consequences of mistakes of law is a hard one in many cases, and can only be maintained on grounds of general policy. It is undoubtedly expected of persons that they will act with prudence.
' But the rule is not so universal as to hold parties beyond relief for all cases — however hard — when mistake of law is an important element. When it is only one of various elements, and is combined with fraud or misconduct, the courts will not refuse to do justice in all cases. In Pusey v. Desbouvrie 3 P. Wms. 315, a release of an orphanage share of a freeman’s daughter in London made as a condition of obtaining a legacy, was set aside as made improvidently, though without fraud, where the legatee reposed faith in her brother, the executor, for knowledge of her rights under the custom, and he had innocently failed to enlighten her. In commenting upon the case Judge Story (1 Eq. § 118) justifies it both on grounds of confidence and also as really involving surprise connected with facts. In Evans v. Llewellin 1 Cox 333, there was no ignorance of facts, and it was held there was no actual fraud, yet on the ground of surprise and action taken 'suddenly without due caution, a conveyance was set aside as improvidently made. The cases are quite common in which relief is given where a person has been surprised into doing what it is inequitable to hold him to, when fact and law are blended, or where the mistake of law is so mixed up with other things that it cannot be regarded in the view of good sense just as it would be if it were a deliberate blunder made without haste or artifice. See Story Eq. § 134, and generally §§ 117-139.
In the case before us we have a man who from sickness was practically and obviously unfit, to protect himself, beset by very unseemly urgency by a cool and calculating agent who went on purpose to get his policy away from him and not only misstated to him the fact of forfeiture, which was ' a mixed question of fact and law, but also misinformed him concerning the action of the Insurance Commissioner, and the action of some of his neighbors touching the surrender of their policies. All' of these things must necessarily impress any one, if credited, because showing on the one side an official decision on the law as to notes, and on the other acquiescence of business men in its interpretation. The questions of law were not such as most men would in fact know much about, and there are few persons who would not be impressed somewhat by the representations of the agent of a responsible company. While, as we held in Mayhew v. Phœnix Ins. Co. 23 Mich. 105, a person cannot generally be justified in acting solely on the statement of his legal rights by an adverse agent in insurance controversies, yet— as there intimated — they may be so mixed with unconscionable conduct as to stand differently. Here there was a positive refusal to give time to take advice, and a positive claim that there must be immediate action or complete forfeiture. If such conduct supported by falsehood in fact, and practiced upon a person weakened by disease, can be held free from legal blame, the doctrine' of constructive fraud becomes too technical and attenuated to be of practical service. When a fraudulent result is both designed and accomplished against one comparatively helpless, over nicety is not equity.
If the transaction whereby the policy was procured was fraudulent, we do not think the delay was such as to render relief improper. The condition of Mr. Tabor was itself such as to excuse both him and his wife from haste, and there were no third parties to be injuriously affected. A tender of the premium in January would not have been accepted, and its omission is not set up in the answer as a ground of defense, and was not given as a reason of refusal. The defendants were in no way injured by the brief space of time that elapsed before filing the bill.
We think the decree should be affirmed with costs.
Graves, J., concurred.
Cooley, J.
I have taken a somewhat different view of« this case from my brethren, but as the case turns upon the facts I do not deem it important to enter upon a review of them under the circumstances.
Marston, C. J., did not sit in this case. | [
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Marston, C. J.
Plaintiffs below claimed title through Nicholas Campau who died intestate in 1811. Nicholas had six brothers and two sisters, two of whom died, one in 1809 and one in 1811, intestate and without issue. Catherine, one of the sisters, moved upon the premises in 1818 or 1819 and commenced the cultivation of a part, and she continued to reside thereon until the time of her death in 1854. In 1845 she quitclaimed her interest in the premises to two of her brothers, Joseph and Barnabas. The construction of this instrument was passed upon when this case was here before, and we see no reason to change or modify what was then said: Campau v. Campau 37 Mich. 246; Sparrow v. Kingmam, 1 Comst. 242. Contemporaneous with this conveyance the grantees gave Catherine back a life lease of the entire estate, covenanting that she should have quiet possession, and agreeing to build or repair a house for her on the premises, she agreeing to pay one dollar per year rent and taxes.
In 1863 Joseph died, and his administrator compelled those in possession, and who had entered under Catherine, to pay rent or recognize his rights as administrator in the premises. In 1866 Joseph’s estate was partitioned, and his interest in these premises set apart to Elizabeth Brown who con veyed in 1868 to Daniel J. Campau, one of the defendants.
In 1875 the heirs of Barnabas sought to exercise their rights, but not being recognized brought ejectment for an undivided one-half of the premises.
It seems quite clear that the title which Joseph and Barnabas had upon delivery to them of the deed from Catherine could be and was no more than they previously held, with the interest of Catherine as one of the heirs added, less any previous valid conveyance made by her. There is nothing-in the record fairly tending to show that Catherine had acquired any other or greater interest, or that she intended to convey, or her grantees supposed they were acquiring, any more than this. Sands v. Davis 40 Mich. 20.
As tenant in common she was entitled to the possession of the entire premises, with the others if they entered — if not, alone; but such possession would not be presumed adverse as against her co-tenants. The conveyance by Catherine to Joseph and Barnabas did not give them the entire title or cut off the rights of their co-tenants, and the lease back of the entire estate and her possession thereunder could not enlarge the title of Joseph and Barnabas as against their co-tenants.
Where a person is in and has held possession of land rightfully under a claim of title which, when traced back, does not purport to convey the entire estate, the mist and ambiguity which shroud and surround the character of the possession, and clajm made thereunder, cannot enlarge the actual title or rights acquired by possession thereunder. On the contrary, clearness and distinctness are requisite to acquire title by adverse possession, either in whole or in part, and especially is this so as against tenants in common. Davis v. Filer 40 Mich. 316; Gower v. Quinlan, id. 575; Everts v. Beach 31 Mich. 136.
It is also well settled that the possession of an occupant is co-extensive with his claim and color of title. If in possession of a part under color of title to the whole tract, his constructive possession extends to the whole; if under color of title to an undivided interest, Ms constructive possession covers the whole to the extent of such interest; if without color of title, the possession is not extended by construction, beyond the boundaries of the occupied portion. The constructive ppssession of premises will be co-extensive in interest with the title which gave rise to and created it, and in like manner the actual possession may be limited by the title of the occupant. The actual possession of a tenant in common will not be presumed adverse to that of his co-tenants, and his constructive possession in like manner will be limited to his interest as tenant in common. The possession of one tenant in common, unless under a claim of exclusive right, will not affect the rights of the co-tenants. Such exclusive claim and denial of their right, should be clear and unambiguous and brought home to the knowledge of the co-tenants either by express notice, or by implication. And if the latter, all doubt growing out of the nature and character thereof, should be against an ouster. The presumption should be that the tenant in possession respects and recognizes the rights of his co-tenants, until the contrary clearly appears; that tjie possession is rightful, and not to the exclusion of others having equal rights.
The court charged the jury in substance, that Joseph and Barnabas each owned an equal undivided interest in the property. As heirs of Nicholas Campau this would be true, and it would be equally so as to the title they took under the deed from Catherine, or that they acquired by adverse possession, if any. As a general proposition there is, however, no such presumption. Where lands are conveyed or devised to two or more persons, and the instrument is silent as to the interest which each is to take, then the presumption will be that their interests are equal. Such would be the legal effect and construction of the instrument. Where however the interest of each is not thus made apparent, there can be no such presumption. The quantities of the estate of tenants in common, and their proportional shares thprein, may be so different and unequal that no such presumption could, with safety, be indulged in.
The views herein expressed are somewhat different from those which prevailed upon the trial. Several other questions were raised which may not arise upon a new trial, and we therefore pass them for the present, but not thereby giving thereto our approval. It follows that the judgment must be reversed with costs and a new trial ordered.
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Graves, J.
Anderson brought general assumpsit in August, 1878, to recover among other things for an alleged balance for putting in saw logs, and the jury returned a ver diet in his favor for $1116.63. Peterson then brought error on certain exceptions to the proceedings. The record is rendered ambiguous by much unnecessary matter, and by its want of connection and other perplexing defects. Two written contracts are often alluded to as Exhibits “A” and “ B,” and. papers so marked are attached to the bill of exceptions. But it does not distinctly appear that either of them was actually submitted to the jury. Another writing is likewise mentioned as bearing on the controversy, but is not found in the record.
It so happens however that the imperfections suggested ' are not fatal to the writ of error. The point made on the instructions to the jury relative to the item of $500 claimed by Peterson as set-off does not appear to be well taken. Peterson made a bargain with Esty and Earl for the purchase of certain land for $5500, and it was arranged at the same time between Peterson and Anderson that the latter should have an equal half interest by logging on the lands according to certain terms. Anderson found himself unable to perform according to this arrangement, and it was rescinded by mutual agreement.
It was contended at the trial by Peterson that it was part of this rescission that Anderson should pay or allow him $500 and that he was entitled to be credited for it. Anderson insisted that there was no binding contract in his favor for an interest in the land, and, moreover, that Peterson agreed to pay for putting in all the logs just as though there had been no other contract. The circuit judge was wan’anted in assuming that this item was in dispute and he submitted the subject fairly.
One of the principal issues at the trial arose upon the number of feet? contained1* in the logs for which Peterson should be held chargeable as between him and Anderson. The latter claimed that it was agreed between them that íme Charles H. Clark should scale the logs and that he did so; and the scale account made by Clark was given in evidence. Peterson, however, denied that he undertook to be unconditionally bound by Clark’s scale. He swore that lie assented to Anderson’s proposition to allow Clark to perform the scaling, but qualified his consent by saying that it would be all right if the scaling was done to satisfaction, and he contended that it was not so done. It was for the jury to pass on these conflicting versions and ascertain which was true, and it was not competent to shut out anything on an assumption that one was correct rather than the other.
The counsel on the part of Paterson, following up his explanation, produced evidence that Lewis & Coveil, by authority of these parties, received the logs from the boom company; paid for driving according to the boom scale; sawed the logs and handled the lumber and, out of the proceeds, paid a large demand to Wilcox & Morgan for supplies to Anderson in the course of his putting in the logs, and some other expenses, and paid the residue to Peterson.
He then offered to show the boom scale on which Lewis & Coveil had so acted under the alleged approbation of these parties, and also the amount of that scale; and the circuit court ruled out the offer. It was admitted that the witness under examination, who was the secretary of the boom company, did not make the scale, and the ruling seems to have been based on that circumstance. But it was not important who made it. The material consideration was whether it was in fact the boom company scale, and the one the parties acted on as sufficient for their purpose, if such was the case, and it was part of the offer to produce that scale.
It was for the jury to say whether it was true, as Peterson represented, that it was agreed between himself and Anderson that this scale should guide Lewis & Covell in receiving the logs from the boom company and in making payments in the interest of the parties, and if they found such to be the case, or, in other words, found Peterson’s version to be the true one, they were then entitled to opportunity to consider the proposed evidence relative to the boom scale on the issue touching the number of feet, which ought to be charged against Peterson. Ortman v. Green 26 Mich. 209 ; Smith v. Kelly 43 Mich. 390; Busch v. Kilborne 40 Mich. 297: McCreery v. Green 38 Mich. 172.
In view, therefore, of the opposing theories, the evidence should have been laid before the jury under suitable instructions from the court.
We are not satisfied that the record is shown to contain any error except the exclusion of the evidence referred to.
The judgment must be reversed with costs and a new trial granted.
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Campbell, J.
Mrs. Reed was sued as joint maker with her husband and son of a promissory note for four thousand ■dollars, dated January 24, 1874, but in fact given in June, 1874, in place of a former note of that date. She made some payments which were indorsed.
The defense was that the note was not given for any purpose relating to her own property or interest.
It is not disputed that the original note of January, 1874, was given by her husband and signed by her, in fact as a surety, for money due from him to the original payee Mr. Buys, partly for existing debts and partly for new advances. The second note was a substitute for the first, and nothing passed to Mrs. Reed or for her benefit in executing it.
The ground relied on for enforcing this liability is that in fact the consideration ivas the transfer from her husband of certain lands, as an inducement for her to execute it. •
At the nominal date of the note her husband conveyed to her a tract of land, which was then supposed to be worth more than this debt. Mr. Reed having asked her to become his surety in his arrangement with Mr. Buys, she told him she ought to be secured for his old indebtedness to her before she should sign for him. He had received and used the proceeds of several items of property belonging to her, and among others four thousand dollars for a farm at Pigeon, which he owed her with interest. He offered to convey to her the land in question for what it was worth; it being encumbered, but in his judgment worth more than that debt. She refused to take it at more than four thousand dollars, but agreed that if she got more for it she would apply the balance on the debt to Mr. Buys. There is no evidence tending to make out any substantially different case, but in the view we take of the facts this is not very material. The utmost that is claimed is that she was induced to sign for her husband by his conveyance.
We have decided several times, and once during this term (in Kenton Insurance Co. v. McClellan 43 Mich. 564) that a married woman can only contract in regard to her own separate property, either already owned or else to be acquired or affected by the contract. There must be a direct relation between the contract and her property.
In the present case no such connection existed. We do not think the testimony tended to show that even as between herself and her husband the acquisition of the land was the consideration of any contract to sign for him. Its value was fixed at the existing debt which it cancelled. But however this may be, that was a separate contract between herself and her husband, in which no one else was concerned. If he had made her a conveyance for no other purpose than to induce her to sign or indorse for him, her refusal could have given no one else a cause of action. Buys had nothing to do with it. The only consideration for the note in question passed from Buys to the husband. Buys did not take any step with the understanding or knowledge of this collateral arrangement. He no doubt acted on a mistake of law, supposing a married woman could contract generally. He was an entire stranger to the arrangement between husband and wife, and had nothing to do with its consideration. The two contracts had, so far as he was concerned, no relation to each other.
As there was no other consideration involved in the questions brought before us, we need not discuss any other points. We think the lands in question had nothing to do with the consideration of the note, and that Mrs. Beed was not authorized to contract with Mr. Buys so as to be bound by reason of her husband’s arrangements with her.
The judgment, resting on a different view, must be reversed with costs and a new trial granted.
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Cooley, J.
This is a suit to recover of the defendant a considerable sum of money which the plaintiffs have paid under protest, as tolls for passing through a canal around a "dam constructed by defendant across the Cheboygan river about a mile above its mouth where, before the construction of any dam, there were rapids. To an understanding of the legal questions it is necessary to have some knowledge of the water-courses which find an outlet by way of this river.
The stream named the Cheboygan is eight miles long, passing from Mullett lake to Mackinaw straits. Mullett lake is twelve miles long by three or four wide, and is connected with Burt lake of like size by Indian river, a stream five miles long. Crooked river, five miles long, connects Crooked lake, six miles long and a mile wide, with Burt lake. Bound lake, about a mile in diameter, is near Crooked lake and connected with it. About five miles above the mouth of the Cheboygan river, Black river comes into it. This is a stream sixty miles long, and passes through Black lake, which is ten miles long and three wide. Bainy river, thirty miles long, empties into Black lake. Pigeon river, forty miles long, empties into Mullett' lake. Sturgeon river, seventy miles long, empties into Indian river. Maple river, thirty miles long, empties into Burt lake. Two small steamers, capable of carrying a hundred passengers each, navigate the waters from the head of Crooked lake to the straits of Mackinaw. All the waters mentioned are made use of for floating logs and lumber on their way to the place of manufacture or to market, and vessels drawing five feet of water run up to the head of Mullett lake, and those drawing two and a half feet to the head of Crooked lake. Freight boats and lighters are also used on Black river.
In the year 1817 a dam was built by one McLeod across the Cheboygan river where that of the defendant now stands. It was not so high as defendant’s dam now is, but high enough to raise the water so that such craft as the plaintiffs now make use of on the river could navigate it to Mullett’s lake. The case does not show how or why McLeod came to build this dam, nor how the defendant comes to be now in possession of its site with a higher dam. In 1867 an act of the Legislature was passed to provide for the* incorporation of slack-water navigation companies for the improvement of rivers in the counties of St. Joseph, Cass, Berrien and Cheboygan, and in the following year defendant was organized and constructed the dam complained of. By the act of incorporation any company that should be formed was authorized to take possession of any navigable river proposed to be improved, and to improve the same by the erection of dams and the construction of locks, and it was provided that “ said river, when so improved, and the lock constructed by such company, shall be deemed and taken to be public highways, and free to all persons whatever, to pass and repass with their .boats and other water craft, and with their produce, goods and chattels, wares and merchandise, such persons conforming to such rules and regulations as may be established by the company for the navigation of such river, and paying such tolls as may be established and required for the same by such company2 Laws of 1867, p. 840. As the act did not in any way limit the tolls that might be charged- by the companies formed under it, or confer upon any public officer or authority the right to limit them, or to supervise the action of the companies in any manner, it was in effect' an act to transfer to voluntary organizations the control of navigable streams, with power to levy burdens upon commerce at discretion, and was probably inoperative under the principles laid down in Ames v. Port Huron etc. Co. 11 Mich. 139. But in 1871 this power was restricted, and a schedule of tolls which might be charged was fixed by legislation: General Laws 1871, p. 176. The constitutional validity of these acts was contested, but the lawful existence of defendant as a corporation was affirmed in Nelson v. Cheboygan eto. Co. 38 Mich. 204.
To prove a personal grievance the plaintiffs gave evidence tending to show that they owned a mill above the dam, and used in their business a tug and several ligbiers; that in 1876 the tug made a hundred and sixteen trips each way, and the lighters two hundred and six trips up and two hundred and four trips down; that in 1877 the lighters made forty-eight trips up and forty-nine trips down; that in going up they were light and drew ten to twelve inches of water; that in going down they were loaded and drew from three to three and a half feet of water; that plaintiffs sent over the waters of the Cheboygan in 1876, '7,596,000 'feet of lumber and a considerable quantity of wood, bark and shingles, 1,151,000 feet of the lumber being shipped on the lighters and the remainder on rafts to the mouth of the river; that the dam, so far as vessel navigation and rafts were concerned, completely obstructed the stream, and to get around it with their tugs,,lighters and merchandise, plaintiffs were compelled to use defendant’s canal, for which defendant compelled them to pay tolls, amounting in all to $2767.70; that in the natural stage of water in the Cheboygan river without any dam the lighters used by the plaintiffs could have passed in the condition they were in on their up trips — that is, unloaded — and that rafts of lumber could have been run down. This constituted the case for the plaintiffs.
It was decided in Benjamin v. Manistee River etc. Co. 42 Mich. 628, that the State might lawfully authorize corporations to make improvements of navigable rivers and to charge tolls for the use of the same, notwithstanding the compact in the Ordinance of 1787 that the navigable waters of the Northwest Territory should be forever free. The tolls, it was said in that case, are not charged for the use of the navigable river thus made free, but are imposed in respect of the improvements, and to obtain the benefit thereof, and the compact itself might have been a curse to the Territory instead of the blessing it was meant for, had it required the water highways of the Territory to remain unimproved in order that they might be used in their natural condition without toll or impost. That case governs this, to the extent at least of determining the general question of the right to take tolls.
But it is insisted on the part of the plaintiffs that the right to the free navigation of public streams must still exist, notwithstanding the improvements, as to whatever property or vehicle of commerce might previously have navigated them. Also that defendant can have no right to stop at its dam and require tolls for the passage through its canal of that which before the dam was built would have floated in the river at that point, thereby making the improvement a burden on such navigation as did not need it. The true construction of the act under which defendant is organized is claimed to be, to give the company a right to charge tolls to those who need and use its improvements, and it is only permitted to obstruct such navigation as the stream in its natural condition is capable of, on condition that it provides locks for getting around its obstructions, and makes them free.
We do not think the broad question which the plaintiffs attempt to raise is in the case. There was no attempt in the court below to show that the commerce carried on by the plaintiffs was not facilitated by the improvement, or that any portion of it was burdened with tolls for the use of that which did not benefit it. It was shown, negatively at least, that the tug and lighters required the facilities of the canal in passing down, and though it was proved the lightérs could have passed up unloaded before the dam was constructed, it did not appear that their going up, when they could not also go down, would be of advantage to the interest of any one. The rafts, it was • shown, could have passed down before, but' whether as conveniently and safely did not appear. It is consistent with everything appearing in the record that every use made by the plaintiffs of the river was facilitated by the construction of the dam and canal. If they were so, the exaction of tolls for the use of the canal was as proper and just as it would have been if the dam had first made the use of the waters practicable. The tolls are charged in respect to the enjoyment of benefits conferred by the expenditures of defendant; and whether these benefits originate with the improvement the defendant has made, or are only enhanced by it, is immaterial to the justice or legality of the impost.
It is further contended that defendant is the successor and assign of McLeod in respect to this dam, and is charged with all his duties; and that there was legislation under which McLeod built which required him to construct a lock for the passage - without charge of whatever navigated the river. The deduction is that defendant must maintain such a free passage now. But in the first place no such legislation appears to have been brought to notice in the court below, and in the second place it is not shown that defendant is the assign of McLeod. The supposition that McLeod may have abandoned his dam as useless, is consistent with anything that appears in the evidence; and in that case the appropriation of it by any one else who should find it a convenience in improving the river would have been perfectly proper, provided the authority of the appropriator from the State was such as would justify the erection as a new one. Certainly so long as defendant does not claim under McLeod, or need any grant McLeod may have had to justify damming the river, his obligations cannot be said presumptively to have been assumed by it.
But it is said that defendant must claim under McLeod, who built his dam before the present Constitution was adopted, because since that time no dam can be constructed across a navigable stream except with the consent of the board of supervisors Of the county, which defendant has never obtained. The conclusive reply to this suggestion is that no question of the consent of the board of supervisors appears to have been made in the court below, and we neither know what the fact was, nor could we act upon it if we did. We sit here to review only the rulings of the circuit judge.
The circuit judge gave instructions to the jury corresponding to.the views above expressed, and verdict and judgment were rendered for defendant.
This judgment must be affirmed with costs.
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Campbell, J.
Eowley presented and established before the commissioners appointed to determine .claims against the ■estate of Eobert B. Sutton, deceased, a demand of $500 for superintending and completing certain hydraulic works. This claim was affirmed on appeal and is brought before us •on error. The only questions insisted upon on the argument relate to an agreement between Sutton and Eowley to pay for the work by the conveyance of a lot of land. Several different propositions were presented and discussed, but wé do not think it necessary to consider them. There is no •claim that this agreement was in writing, and there is nothing to indicate that it could be enforced as a parol agreement on account of facts taking it out of the operation of the statute of frauds.
The case therefore comes within the principles of Scott v. Bush 26 Mich. 418 ; Colgrove v. Solomon 34 Mich. 494; and especially of Hillebrands v. Nibbelink 40 Mich. 646.
There being nothing in the record to indicate that the agreement differs from any other parol agreement concerning lands, it was void and cannot be considered in measuring-damages or for any other purpose, and Eowley was entitled to the value of his work.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
Action was brought by the Detroit Agitations Yerein to recover a sum of money loaned to the plaintiff in error, and from which the plaintiff below received an obligation, a copy of which is given herewith :
“$900. Detroit, September 1st, 1870.
“The Detroit Schuetzen Bund hereby acknowledge the receipt of nine hundred dollars ($900) of the funds of the Detroit Agitations Yerein, which amount of $900, or any part thereof, the Detroit Schuetzen Bund promise to pay to the said Detroit Agitations Yerein, with interest at ten per cent, per annum, within sixty days after demand having been made in writing by the trustees, or other competent officers, of the said Detroit Agitations Yerein.
“ For the Detroit Schuetzen Bund:
“Joseph A. Kurtz, President.
“Albert Sheu, Secretary.
“Philip Kling, Treasurer.
“ G-eorge Kittelberger, 1 m _ „
_ “ Max Broeg, . j -Lrustees-
The plaintiff declared as “ a body corporate organized and existing under the laws of the State,” and a copy of its “ constitution ” or charter and laws appears in the bill of exceptions. The defense in the court below, as here, rested solely upon the proposition that the plaintiff was not a corporation.
In the briefs of counsel, upon which this case was submitted, we have not been referred to any statute of this State under which the plaintiff had or could have organized as a corporation, not do we know of any under which a corporation with such objects and aims could be formed. It would seem, from the constitution and laws of the society, that it was formed principally to oppose the enforcement of a prima facie valid act of the Legislature of this State.
There may be cases where organization and “ agitation ” would be proper for the purpose of effecting the modification or repeal of some obnoxious or oppressive law. That the organization in question was designed to and did go farther than this, the.record clearly shows. It is alleged therein, that the society had collected from its members, and received from other similar societies, considerable sums of money, “ and had disbursed large sums of money in furtherance of the objects prescribed by the [its] constitution ; i. e., in defending prosecutions under the prohibitory law, in testing the validity of the liquor law and of some ordinances against saloon keepers, influencing legislation, and in some cases in paying the fines of those who were convicted under the laws' and ordinances which the society was organized to oppose; and the Yerein had alsG held numerous public meetings at various places for the purpose of influencing public opinion in furtherance of this general purpose.”
No corporation can exist except by force of express law. As already intimated, no statute has been called to our attention which authorizes the formation of corporations to oppose the enforcement of other statutes, or to agitate for their appeal, or to influence legislation, or to give immunity to convicted parties by paying their fines for them. Every citizen has'an undoubted right to agitate for such changes in the laws as he may desire, and to be charitable to those whom he may think are wrongfully punished ; but it would be preposterous for the Legislature to provide for organizing corporations for such purposes, since the very provision would be an admission that the laws were wrong, and ought to be repealed without agitation or outside influence. When the Legislature is thus convinced, it is to be presumed that all needful changes in the laws will at once and in a direct manner be made, in the interest of peace, good order and justice, without its calling upon the people for agitation or excitement as a preliminary thereto.
Finding no law for the incorporation of this society, the judgment must be reversed. This would be the necessary result, even if the purpose of the society were one in the propriety or usefulness of which every citizen concurred, since the law does not authorize an unincorporated society to bring suit in its society name.
It follows that the judgment must be reversed with costs of both courts.
The other Justices concurred.
Motion for judgment against surety for costs. Submitted and denied October 8.
Pee Cueiam.
Where judgment for plaintiff is reversed and the ease sent back for new trial, the Supreme Court will not, under Comp. L. § 6133, give judgment against the surety for costs, there being no showing in the record that such security was required, and nothing on the face of the surety’s bond to show that it was approved by the court below. See Ortmann v. Merch. Bank of Canada 42 Mich. 464.
The object of the society, as set forth in its constitution, is as follows:
PREAMBLE.
In order to energetically oppose the so-called temperance laws passed by our last State Legislature, which, in their unheard-of presumption, seek to diminish the personal freedom of the citizens of this State, and by these means endanger the freedom and independence guaranteed us by the constitution of the United States as our inalienable rights, German citizens of the city of Detroit have united themselves as an Agitation Society against said law, and have formed and adopted the following constitution, in the strict adherence to which they see the most effectual way of rooting out such laws, so inimical to freedom.
CHAPTER I.
The society is known as “ Agitation Society against the liquor law now in existence in the State of Michigan, and it is composed of passive and active members.
CHAPTER II.
OBJECT OF THE SOCIETY.
The members of the society bind themselves (active and passive) by all legal means at their command to oppose the temperance law passed at the last session of our State Legislature, and that as follows:
1. By unitedly working together in this matter, by holding meetings from time to time, in which shall be deliberated on the most effective ways and means of agitation.
2. By binding themselves at elections to vote only for such candidate, irrespective of political party affiliations, of whom the members of the society are convinced that they oppose from principle this and similar laws, and bind themselves thereto towards the society in writing. | [
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Marston, C. J.
Certiorari to review the proceedings of a drain commissioner. May 3d, 1878, an application was made to the drain commissioner to establish and open a water course through certain lands. The 7th day of May, 1878, at a certain hour and place, was fixed for examination of the application, and the commissioner returns he “ gave the notice required by the statutes to the parties interested in said water course.” This we have repeatedly held was insufficient, and rendered all subsequent proceedings void as against parties not waiving notice or otherwise estopped.
It farther appears from the return that no survey or plat of the proposed ditch was made until April 22d, 1879, nearly a year after the initiation of the proceedings, and no cause or excuse for the delay is given. November 13th, 1879, the parties through whose lands the ditch was to run executed a release for all claim of damages. It may be very questionable whether such a delay would not of itself render void for want of jurisdiction all the proceedings thereafter, but it is hardly necessary to pass upon this question at present.
The writ in this case was sued out August 12th, 1880, and although .the work seems to have been done, taxes collected therefor and paid upon contract some months previous thereto, yet we are of opinion the plaintiff should not be deprived of his remedy in this way. Plaintiff’s real, cause of complaint is that the opening of this ditch has lowered a lake upon the waters of which his lands fronted, changing what was a thing of beauty and afforded a safe and easy place for watering stock and other conveniences into an unsightly and sickening mud-hole, unsafe and dangerous, and that during the progress of the work he was assured the opening of the ditch would have no such effect. Under such circumstances he did not lose his rights by the delay.
The proceedings must be quashed and held for naught.
The other Justices concurred. | [
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Marston, C. J.
From the evidence we find the following facts in this case:
Defendant Harvey Mellen was director of the Michigan Air Line Railroad Co. — complainant company having acquired its rights and property by purchase — and as such director he had charge of the eastern end of the company’s road, negotiated and acquired for it right of way and depot grounds, and acted for the company quite generally.
Other directors of the company acting with Mellen had agreed that certain lands should be purchased from the Bailey heirs for depot grounds in the village of Romeo, and Harvey Mellen agreed to negotiate for and purchase such grounds. He with the assistance of a brother and John Phelps succeeded in purchasing the lands, and the title thereto was taken in their joint names as owners. Phelps afterwards conveyed his interest to defendant Tackles. Defendants erected a depot building upon these grounds and other work was done by them, and they now claim that the Railroad Company must pay them the value of such improvements, and the price paid by them for the land to the Baileys, when they will convey to the company, subject to certain rights which they claim they were to have in and to an elevator and lime house which they erected on their own account ppon these grounds under an agreement with the company.
These depot grounds purchased from the Baileys were purchased by Harvey Mellen acting as a director and paid for by him in bonds belonging to the company drawn out of the bank where deposited for that purpose. This seems too clear to be really open to dispute. The small amount paid in cash — less than $100 — the difference between the face of the bonds and the price of the land, is not worthy of notice in this connection. It does not appear that either of the other parties, John Phelps or John N. Mellen, put one dollar into the land. We also find as a fact that Harvey Mellen afterwards received from McNaughton, managing director of the company, twenty-five hundred dollars in township aid bonds, which at their par value was more than sufficient to pay for depot buildings and other improvements; that when he received these bonds he agreed that a deed to the company, if not then executed, would be and be delivered and recorded, which was not done. These bonds he still retains oi’ the proceeds thereof, and should- be charged therewith. The building having been erected under an agreement with the company, whether the defendants wei-e copartners or joint contractors, in either event Harvey Mellen would have a right to receive payment from the company therefor and bind the others thereby. Whether he could bind them by taking anything else but cash we need not at present determine, as they, with full knowledge of the facts, made no distinct claim upon the company, in repudiation thereof, for a long period thereafter. The authority of Harvey Mellen to represent his associates is not seriously questioned. All the defendants concur in saying that the bonds were not accepted, as they wanted the money and were uncertain as to the value or validity of the bonds. They could not, however, retain the bonds and at the same time question their validity or value. If they desired to have the company pay them the amount due, in cash, they should have surrendered up the bonds, but this was not done. It is true Harvey Mellen says he claimed to hold these bonds upon another claim he had against the company. This, however, he could not do without the consent of the company thereto. Having received them to apply upon one claim, he could not refuse so to apply them and credit them to some other account. The debtor had the right at the time of making the payment to direct the application. This was done, they were delivered to apply on the amount due the defendants, and they could not refuse to so receive them, and yet retain and apply them upon an individual account without the debtor’s assent.
Harvey Mellen as a director of the company could not purchase lands for its use and benefit, and pay for the same with' the funds of the company, and at the same time, without authority, take the title thereto in his own name or jointly with others, as in this case. Such would be a fraud upon the rights of the company, and they would hold the title in trust for the company.
Thé company and defendants have been in the joint possession of this property, and defendant’s possession must be held a sufficient compensation for the taxes and insurance they have had to pay, especially as their holding was • wrongful.
Under their original agreement they were to have an exclusive right to build and use an elevator and lime house. Such a building they have erected, and they should be protected in their rights thereto in accordance with the agreement.
The decree below must be reversed with costs of both courts and one entered here in accordance herewith.
The other Justices concurred. | [
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Graves, J.
In these cases error is brought on judgments given by default in the Superior Court of Detroit. The proceedings were all had some time prior to the act of May 22d, 1879, amending the statute under which the court was organized, and the points raised refer to the original enactment.
First. The claim is made that the Legislature h'ad no power to authorize the institution of suits in the Superior Court' against any party not residing in the city, and as a consequence, that the court could exercise no jurisdiction over a party not shown to be a resident although found and served there. The proposition cannot be maintained. It must now be considered as settled that the meaning of the Constitution is different, and that no such restriction was intended to be imposed. There is great force in the consideration that such a qualification of jurisdiction would have been justly open to many serious objections; that it would have created embarrassing discriminations, and to a great extent have derogated from the practical advantages intended to be accomplished. It is a matter of common knowledge that there are always classes of persons actively engaged in various branches of business in cities like Detroit, and who spend the most of their time there, but actually reside outside the corporate limits, and that very frequently they belong to city firms the other members of which, reside in the city. For many purposes, these persons living outside belong in the city, and as matter of policy and propriety the reasons for making them suable in the city are every whit as strong as they would be if their residence was there. This remark, of course, will be understood as applying to causes of action which have no local character. The observation is entitled to weight that in conveying power to establish civil courts in cities the considerations mentioned and others of like nature were regarded.
Second. It is alleged as error in the first case that the default was entered without any proof that the defendant had not appeared to plead. The case was commenced by declaration which was personally served within the city. The usual rule to plead had been entered, and the proper notice of it appeared on the declaration which was served on the defendant, and due proof of service was on file. The failure to plead was evident to the court, because the records disclosed that no plea had been filed, and the default was for not pleading. This was regular. 1 Burrill’s Pr. 370.
Third. The objection urged most strenuously is that in two of the cases the declaration fails to show that the plaintiff was a resident of Detroit. In the case of Farwoll the declaration describes the plaintiff as “ of the city of Detroit ” and the defendant as “ also of said city of Detroit,” and in the case of Miller she is described as “of the city of Detroit.” These expressions are claimed to be insufficient to denote the party’s residence. There are two satisfactory answers to the point. In the first place, the terms import with sufficient certainty the place of residence. R. 2 Cro. 167; 6 Comyn’s Dig. “ Pleader,” (C. 17.) Even in case of indictments, where it was necessary to give the prisoner’s addition of place of residence, it was always considered sufficient to say that he was “ of ” the town, hamlet, ward, parish, ville, or the like, without expressing in exact terms that he resided there. Archbold’s Cr. Pl. 29, 30. Second, were it admitted that, in this respect, the declaration was deficient in legal certainty, no advantage could be taken of the defect now. The statute would apply which says that a judgment upon default shall not be reversed or in any way affected for any “ mispleading” or “insufficient pleading.” Comp. L. § 6051 subd. 4
In each of these cases it appears from the record that the declaration by which the suit was commenced was served within the city.
The respective judgments will be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
This case now comes before the court upon the same showing as when here before, with the addition that evidence was introduced tending to show the rate per cent, at which the property was insured, and the ruling of the court that under such evidence the policy was divisible, and that a recovery might be had for the personal property lost. . The prior decision will be found in 40 Mich. 241. As was said when the case was here before, reference was made in the policy to a written application which was declared to be a warranty, and the policy was to be avoided for any omission to make known a material fact. The false representations related to the title of the insured to the real estate and encumbrances thereon.
There is a conflict in the authorities as to the right to recover in cases like the present. That there may be cases where the contract would be divisible, and where the fact that the policy might .be rendered void as to a part would not affect the whole, we do not question, and what may here be said must not be understood as going beyond the facts of this case as presented us.
Here the false statements which avoided the policy as to the buildings were made before the policy was issued. The personal property was in the same building. If it was for the interest of the insured to cause or suffer a loss of the building, because he had not the interest therein he had represented, it would we think be idle to say that such fact would not increase the risk upon the personal property in such building. It would be very unsafe therefore to assume that the company would have taken a risk upon the personal property, separate from the building, and therefore, because the rate and the amount insured upon the personal can be separated from that on the building, to hold that the contract is divisible. That the company would have taken a risk upon the personal property alone, to a like amount and at the same rate, we may assume, even with full knowledge that the insured had no title to the building; but it would be hazardous to assume that with such knowledge the company would have written upon both the personal property and the building, so that upon the whole policy the insured would be more interested in a loss of both than in their protection. It was declared in this policy that the omission to make known a material fact should render it void, and we cannot say that the false representation was not material as to both the real and personal property. The case should be clear and free from all reasonable doubt to warrant a court in carving out separate and distinct contracts from one common whole. The authorities upon this question are collected and cited in the briefs of counsel.
Upon the facts presented there can be no recovery, yet we can but reverse the judgment with costs and order a new trial.
The other Justices concurred. | [
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Campbell, J.
Mrs. Swan recovered damages against Eay for an assault upon her, committed with much violence, and with a felonious intent to ravish her.
On the trial several questions arose upon the admission of evidence, which were ruled against Eay, on which he brings the case to this court. In order to understand them it will •only he necessary to refer to a very few facts as testified to on the trial.
The assault was committed in a hotel in Elint. Mrs. Swan had applied to Eay at her husband’s request for a small loan which he said he would pay her if.she would call there. On ■going there she was on some pretext desired to go to a room up stairs, where Fay at once fastened the door and made the •attempt in question, which Mrs. Swan resisted successfully. ,To prevent her from giving an alarm Eay among other things told her that he was in the habit of going there with women, •and the keeper of the house expected him and there was no use of making any noise. There were circumstances going to indicate that this was quite likely, as Mrs. Swan’s subsequent experience before getting out, tended to indicate.
Among the witnesses sworn, one Dolly Chase was allowed to testify to an attempt made by Fay to get her to go with him to the same house, when he told her that he was in the habit of taking girls there, and that all was arranged there. Exception was taken to this as irrelevant.
It is undoubtedly true that proof of one wrong has no legal tendency to prove another. But the point to which this testimony was directed was not the act which Fay meditated committing with Miss Chase, but his admitted habit of visiting the house for such purposes.
Mrs. Swan’s statement of the condition of things at that house would have been a very remarkable one if the house was kept as a decent hotel should be, and the statements of Fay that he was in the habit of resorting there with some understanding with the keeper were very important facts as explaining the reason why an alarm would be of no use. Such a circumstance was not only an aggravation of his act, but also a fact bearing on the probabilities. It seems to us that Miss Chase’s testimony was not irrelevant but went legitimately to corroborate this part of Mrs. Swan’s story. It showed the danger was real and not simulated. There was no error in admitting it.
The second error assigned is that Dr. Murray, the physician who attended Mrs. Swan, was allowed to give his opinion to the jury of the cause of her sickness, based on her statement of the attack on her.
Dr. Murray testified to having had her under treatment for some years for a malady which he described and with the character and progress of which he was well acquainted. Immediately after the assault he was called in and discovered a condition which was unexpected and for which he could not account, after a careful examination, until he was informed of the grievance, and was at once satisfied that if true it would account for her changed state. We cannot see what objection there can be to this testimony. He did not attempt and was not allowed to tell the jury that in his opinion Mrs. Swan’s sufferings were due to the attack. He merely said in substance that such an assault would account for. them. The fact of the assault was left to them on the proofs.
The court did not err in allowing the jury in estimating damages to take into account the disgrace as well as physical. suffering caused by it. Fay was liable for any of the natural results of his trespass.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Fraser & Gates for the motion cited Griswold v. Fuller, Chaney’s Digest, 735 (6). | [
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Fellows, J.
(after stating the facts). We agree •with the learned trial judge that the testimony of the plaintiff as to facts, equally within the knowledge of the deceased is incompetent under the statute. Wallace v. Mystic Circle, 127 Mich. 387; Great Camp K. O. T. M. v. Savage, 135 Mich. 459; Franken v. Supreme Court I. O. F., 152 Mich. 502; Peirson v. McNeal, 137 Mich. 158. But disregarding her testimony which falls within the inhibition of the statute, we are satisfied from the other testimony in the case that such antenuptial agreement was. in fact made. Mr. Carpenter, the uncle of plaintiff and with whom she lived at the time of her engagement and marriage, testified:
“A. Why I remember of coming in one afternoon— * * *
“Coming into my home and Mr. Bland was there and I was, a trifle exercised over the amount I had just paid for a premium, and Mr. Bland spoke up and said, why, I think that every man should have insurance to protect his family. He said, I have promised Gladys if she marries me that I will turn all my insurance to her. _ I said you ought to, that is why I just paid this premium is to protect my wife.
“Q. How long was that, if you remember, Mr. Car penter, when Mr. Bland made that statement before they were married?
“A. Why that was along in May that this — that I paid this premium.
“Q. Gladys says she was engaged just about three weeks before she married him, and that would be sometime before that?
“A. That would be somewhere along three or four weeks before the marriage. * * *
“Q. At that time Mr. Bland himself made a statement if Gladys married him he would make all his insurance payable to her?
“A. Yes, he kind of chided me for complaining of the expense of keeping the policy up; spoke up frankly, said every man should carry life insurance.
“Q. To protect his family?
“A. Yes, sir.”
Mrs. Carpenter was present at this conversation and testifies with reference to it as follows:
“My husband came in in the afternoon and Mr. Bland was there.
“Q. That was Mr. Edward G. Bland?
“A. Mr. Edward G. Bland had called, and Mr. Carpenter came in and he held an insurance policy in his hands.
“Q. Who came in?
“A. My husband, E. E. Carpenter,* came in with this insurance policy in his hands and the remark was made it costs terrible to keep up these' insurance policies.
“Q. Who made that remark?
“A. Mr. Carpenter. Well, I spoke up and I said, well, I am glad that you have it, my dear, because if anything should happen to you it would insure me of something, and Ed. Bland spoke up> and he said, yes, every man should carry an insurance for his family, and in case that I marry Gladys my insurance will be made to her, my insurance will be made to her.”
While plaintiff was prohibited by the statute from testifying to facts equally within the knowledge of the deceased, she was not prohibited by the statute from testifying to conversation she had with the father and mother not in his presence. Considering such testimony, together with the other testimony in the case, we are satisfied that the father and mother both knew of Edward’s agreement to transfer the insurance and both acquiesced in it. Indeed the record discloses that these parents, and particularly the mother, were extremely anxious that their son should marry the plaintiff and upon all appropriate occasions urged the marriage. Both impressed upon her and her relatives how much more advantageous it would be to her than an alliance with the young man in the south and overlooked no occasion to point out to her the material advantage a marriage to their son would bring to her. We are satisfied upon this record that deceased agreed with plaintiff to make her beneficiary in these insurance policies if she would marry him and that the individual defendants knew of and acquiesced in such agreement.
May the court of equity decree specific performance of this antenuptial contract? Through a long line of authorities it has been held by this court that in cases cognizable by a court of equity specific performance of antenuptial agreements may be decreed. Among them see Thompson v. Tucker-Osborn, 111 Mich. 470; Dakin v. Dakin, 97 Mich. 284; Carr v. Lyle, 126 Mich. 655; Phillips v. Phillips, 83 Mich. 259; Kundinger v. Kundinger, 150 Mich. 630; Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A. 596). In the first of these cases we quoted with approval from the case of Stilley v. Folger, 14 Ohio, 610, 649, the following language:
“All supposed actual fraud may, therefore, be laid out of view. Why, then, should not this agreement be enforced? Antenuptial contracts have long been regarded as within the policy of the law, both at Westminster and in the United States. They are in favor of marriage, and tend to promote domestic happiness by removing one of the frequent causes of family disputes, — contentions about property, and especially al lowances to the wife. Indeed, we think it may be considered as well settled at this day that almost any bona fide and reasonable agreement, made before marriage, to secure the wife in the enjoyment either of her own separate property or a portion of that of her husband, whether during the coverture or after his death, will be carried into execution in a court of chancery.”
An interesting case upon the question of the enforcement of the terms of an antenuptial agreement by a court of equity will be found reported in one of the early English reports (Frederick v. Frederick, 1 Peere Williams, 710). One Frederick had agreed in the antenuptial agreement that he would within a year after the marriage become a freeman of London. By custom one-third of the personal property, qf a freeman of London went to his widow. After'the marriage Mr. Frederick did not become a freeman of London, although he lived some 40 or 50 years thereafter. Upon his' death specific performance of the antenuptial agreement was sought. Among the objections urged to granting such decree was that Mr. Frederick was then deceased and could not be made a freeman after his death.- This objection was disregarded by the court and it was said:
“It is the substance and the chief end of the agreement, that equity will enforce, viz., that the widow and children should have their thirds of the personal estate, which is not impossible to' be performed. This, though Mr. Frederick be dead, a court of equity may, and, I think, ought to see executed. * * *
“Upon the whole matter, Mr. Frederick having upon good consideration made the agreement to become a freeman of London within a year, and having survived that year, he shall in equity be taken for a freeman, and his personal estate distributed accordingly, viz., one-third to the wife, another third to the children, and the will to operate only on the dead man’s third.”
It is suggested by defendant’s counsel that the parties to the marriage were young people, that presumptively the marriage was due to their mutual affection and the antenuptial agreement was not its procuring cause. We do not understand the rule to be that to entitle a wife to specific performance of an antenuptial agreement that her marriage must be prompted solely by mercenary motives. There was, no doubt, affection between plaintiff and deceased, but he entered into certain agreements with her in consideration of the marriage and upon these engagements she relied; while there probably was mutual affection this does not excuse deceased from the performance of his agreement with her. The marriage was a performance on her part. She was entitled to performance on his part.
Counsel for the defendant rely upon the following cases: Coston v. Coston, 145 Mich. 390; Ancient Order of Gleaners v. Bury, 165 Mich. 1 (34 L. R. A. [N. S.] 277); Supreme Lodge K. of H. v. Nairn, 60 Mich. 44; Grand Lodge A. O. U. W. v. Fisk, 126 Mich. 356; Ladies’ Auxiliary A. O. H. v. Flanigan, 190 Mich. 675. Only one of these cases, the first one, involves the enforcement of an antenuptial agreement and that case . was disposed of as one of fact. Without reviewing all these cases it will suffice to state that in the main they deal with provisions and regulations for the change of beneficiaries found either in the policies or the laws of the order and hold that such provisions and regulations must be complied with in order to permit a change of beneficiary. In the instant case no such question is involved. There is no claim made that any provisions of this policy prevented a change of beneficiary by the act of the deceased alone.
Plaintiff’s counsel insists that defendants are equitably estopped from asserting any claim to these policies of insurance. Defendant’s counsel, while denying that an equitable estoppel is made out, in sist that it is not pleaded, and therefore may not be relied upon. We do not pass upon either claim as we are satisfied that the case should rest on the broader ground that defendants have no vested interest in the policies. In Schiller-Bund v. Knack, 184 Mich. 95, Mr. Justice Stone, speaking for the court, said:
“We have examined the cases, cited in' the briefs of counsel, and are unable to find a case in which it was held there was a vested right passing to the beneficiary where there was not an express contract founded upon valuable consideration (moving to the assured) between the assured and the beneficiary.”
Mr. Justice Ostrander, speaking for the court in Modern Brotherhood of America v. Hudson, 194 Mich. 124, said:
“The right of a holder of a certificate, of the nature of the one before us, to change his beneficiary at pleasure, is one which this court has uniformly upheld, and the right ought not to be and will not be denied unless it is plain that the beneficiary named in the certificate has by contract and by performance acquired a vested interest in the certificate and fund.”
We do not overlook the fact that Mr. Bland in his testimony stated that his son said to him that the beneficiaries would not be changed. This testimony was of a conversation with deceased and therefore equally within his knowledge. Assuming, but not deciding, that it was. properly in the case, it falls far short of establishing a contract founded upon a valuable consideration moving to the assured that the beneficiaries should never be changed. That Mr. Bland did not himself regard it of binding force upon his son is evidenced by his testimony that while he occasionally let his son have money to pay premiums when he was short of funds, he “never wanted it back.” If any payments were made by him they were purely voluntary ones, and not made in pursuance of any contract existing between him and his son.
We are persuaded that under the facts as found by us and the laws applicable thereto, plaintiff is entitled to the proceeds of these insurance policies now in the hands of the, court on the cross-bill of interpleader filed by defendant insurance company. See Grand Lodge A. O. U. W. v. Child, 70 Mich. 163. The decree of the court below will be vacated and one here entered in accordance with this opinion. Plaintiff will recover costs of both courts against the contesting defendants.
Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Marston, C. J.
Daniel Shay was convicted in justice’s court and was sentenced to pay a fine of $50, besides the costs of prosecution, taxed at $12.50, within twenty-four hours, or in default of such payment that he be imprisoned, etc. Shay appealed to the circuit court. . The usual recognizance was given on such appeal. Default having been made in the circuit, this action was brought on the recognizance, and Carroll, one of the sureties, defends upon the ground that the judgment of the justice was not authorized by the statute, and could not be the foundation even of a valid bond on appeal. The judgment of the justice was clearly void under the decision in Brownbridge v. People 38 Mich. 753, and we think the same may be taken advantage of in the present case. The recognizance given under such circumstances cannot be said to have been given voluntarily, and it might be dangerous to hold that the giving of a recognizance, as in this case, would estop the surety from showing that no valid judgment was in force under which the respondent could have been subjected to the payment of a fine or imprisonment.
We think the ruling was correct and that the judgment must be affirmed.
The other Justices concurred. | [
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Marston, C. J.
This is an application for respondent to show cause why a certain motion made in a cause pending in the circuit court should not be granted. In a cause heard.on appeal from justice’s court, judgment was rendered December 1st, 1879, against one of the defendants for damages and costs. On the 31st day of January, 1880, an execution was issued, but dated back so that it appeared on its face to have been issued December 22d, 1879. A motion was afterwards made, based upon a showing of the above facts, for an order that the execution be returned by the sheriff, and that the same be set aside or amended by having it bear date as when issued. This motion was denied.
We think no mandamus should issue. In any question hereafter arising in an action brought against the sureties, the facts above set forth could then be shown. They are not, therefore, without ample remedy.
The motion must be denied.
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Cooley, J.
In this case the judges have been unable to come to an agreement respecting the matters assigned for error, and the judgment of the circuit court will therefore stand affirmed but without costs.
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Campbell, J.
In each of these cases the county treasurer holds and refuses to pay over to relator money received under protest from parties paying taxes under the Liquor Law of 1879, and the ground of protest in each case is the supposed invalidity of the constitutional amendment of 1875, removing the prohibition against licenses.
These causes were submitted with that of Westinghausen v. People, ante p. 265, in which we have determined that the amendment was lawfully submitted and adopted, and has become a part of the Constitution. It follows that the money in each case is lawfully in the treasurer’s hands, and that he cannot withhold it from the municipalities, on whose behalf these applications are made.
A mandamus must issue in each case, but without costs, although we think the course of the officer in withholding •the money is not proper.
The other Justices concurred. | [
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Cooley, J.
The relator is assignee of Addison P. Cook in the ownership of certain certificates of purchase of State swamp lands in the county of Lenawee, which were issued in the year 1853, and- by the terms of which said Cook was -to pay one-fourth the purchase price down, and the balance, with interest, at any time thereafter, at the option of the purchaser. The one-fourth was paid when the certificates were issued, and the remainder June 10, 1879. The certificates were assigned to the relator in 1878, and the final payments were made by him. At that time he demanded of the respondent a certificate that the whole of the principal and interest had been paid, and that he was entitled to a deed from the State; but the commissioner refused to give one, because the taxes levied in respect to said land from the time of their purchase remained unpaid, but offered to give one when payment was .made. The only question the record presents is whether the land commissioner was entitled by law to require the payment of taxes as a condition precedent to the issue of the certificate demanded of him.
I. In 1853, when the lands were sold by the State, there was no provision of law for the taxation of State lands which had been sold and partly paid for but not conveyed. It is, therefore, claimed that it was not competent for the State to tax such lands; that the sale was a contract between the State and the purchaser that the lands should be conveyed to him on the sole condition of the purchase price being paid; and that any provision of statute imposing the new condition that taxes should be first paid, was a provision impairing the obligation of contracts and therefore void.
It is to be observed, however, that the certificate of. sale by the State contains no stipulation or promise that the land, or the interest of the purchaser therein, shall not be taxed. Neither does the land under which the certificate was issued contain or imply such a promise; it is merely silent on the subject. But the interest acquired by the purchaser becomes thereby a part of the individual property of the purchaser, and is as much subject to the taxing power of the State as any other item of individual property within its limits. No property is beyond the reach of that power unless put beyond it designedly and by an unequivocal act of the sovereign power. Christ Church v. Philadelphia 24 How. 302; Gilmam, v. Sheboygan 2 Black 513. Merely refraining from the exercise of the power, though it may raise well-founded expectations that the exemption will be permanent, is not sufficient; for this is a mere favor which may be recalled at any time without any violation of the public faith. East Saginaw etc. Co. v. East Saginaw 19 Mich. 259; s. c. in error 13 Wall. 373. And if the revenue law in force at the time is not sufficient to reach the case, it may be made so whenever the State shall choose. . The power is undoubted and is ample.
II. Is the legislation which has heen passed for the taxing of these lands sufficient to accomplish the purpose?
Provisions for this purpose were introduced in the general tax law of 1853. The eleventh section of that act provided that “ Any person holding a certificate of purchase of university or primary school lands, or occupying the same, shall be liable to be assessed therefor as if he were the actual owner thereof: Provided, however, that the same shall be assessed as personal property, and not as real estate, and the tax thereon shall be collected in the manner hereinafter prescribed.” Comp. L. 1857, § 792. This section was extended so as to include swamp lands in 1858. Sess. Laws 1858, p. 193.
Making these interests taxable as personal property brings some incongruities into the law, for the State apparently con templates that eaeh tax payer personally assessed shall be charged at the place of his residence with one aggregate sum which shall be collected of his goods and chattels. Comp. L. 1857, §§ 802, 821, 822. If such interests were taxed under these general provisions, they could only be taxed where the owner resided, and the general valuation of his personalty in one gross sum must be held presumptively to include them. But the subsequent provisions of the tax law of 1853 show that this was not the method in the legislative mind.
• The supervisor of any township in which such an interest might be assessed was required, on or before the first day of November, to transmit to the county treasurer a list of the lands with the names of the persons to whom the same were assessed. The county treasurer was to return a like list to the Auditor-General when the taxes failed of collection, and the purchaser must, under pain of forfeiting his interest in such lands and in the certificate of sale thereof, within the time in which the annual interest was required to be paid on the purchase money, pay to the State Treasurer the amount of the taxes, with fifteen per centum interest, from the first day of February, and twenty-five cents for expenses. The lands forfeited were then subject to sale in the same manner that other forfeited and unsold university and primary school lands are. Comp. L. 1857, §§ 935-939.
Taking these sections together they evidently contemplate that though the interests of the purchasers of part-paid State lands are to be assessed as personalty, yet that the assessment is to be made separate from the general valuation of personal property, and in the township where the land shall lie, irrespective of the owner’s residence; and that failing to collect from the owner by the customary process, his interest in the land is to be forfeited to the State. There is nothing to preclude the State from providing for the taxation of tangible personalty of any description in this method, if it shall be deemed advisable; and as no defect in the law was pointed out on the argument, we assume that it was sufficient for the assessment and taxation of these lands. "Whether the method provided for the collection of the taxes was a competent and suitable one, will be referred to hereafter.
The fact, however, that peculiar provisions were made for the assessment of these interests has been sufficient to bring 'confusion into the tax rolls; for we find by reference to these that from the year 1862 to 1877, both inclusive, the assessment was made of the interests as personalty in three years only, and that only in one year, and then only as to the interest under one certificate, was the assessment made to any one as the owner. In other words,, the law prescribing the methods of assessment has in most instances been disregarded, so far as relates to the classification of the property, and in every instance has been disregarded in some particulars. Whether the failure to follow the law shall be held fatal to the tax, or whether the provisions not obeyed shall be treated as directory merely, are interesting and important questions, but we are of opinion they do not arise in ijhis case.
III. The State in respect to these lands has been acting in two distinct and quite dissimilar capacities; that is to say, as proprietor in selling them, and as sovereign in taxing them. In the first capacity it treats with. a purchaser precisely as any other proprietor might, offering, agreeing upon and accepting terms, and entering into stipulations from which it is not at liberty to depart, and to which it cannot add in the smallest particular except with the assent of the person with whom it is dealing. New Jersey v. Wilson 7 Cranch 161; Piqua Branch Bk. v. Knoof 16 How. 369. The contract it makes must stand, and the other contracting party is entitled to all suitable remedies upon it. The State as a sovereign cannot deal with it otherwise than as it might with a contract between two private citizens. But the State as a sovereign may subject the interest acquired by the contract to the taxing power and the police- power, precisely as it might the interest acquired under any contract between two individuals, and not otherwise.
Now by the original contract of purchase issued under and construed by the statute in force at the time, the purchaser had the assurance of a deed from the State when the pur chase price with interest was paid. The subsequent law declares- that he shall have this deed only on his presenting a certificate from the commissioner of the State land office showing not only that the purchase price with interest has been paid, but also the taxes, charges and interest levied upon the land. Comp. L. 1871, §§ 3824, 3952. This requirement, it is said, is merely a proceeding for the collection of the tax, and as every sovereignty must select its own means for the collection of its revenues, the method of compelling payment by withholding a deed, is said to be as legitimate as any other.
It must no doubt be admitted that the State may provide modes for collecting its revenues that will seem harsh, unreasonable and arbitrary. Some such are to be found in the laws of Congress, as well as in the legislation of the States. The judiciary would not venture to indicate limits to the powér of the sovereign in this regard, so long as its laws were general and impartial. Sears v. Cottrell 5 Mich. 251; Cowles v. Brittain 2 Hawks 204; State v. Allen 2 McCord 55; McGregor v. Montgomery 4 Penn. St. 237; Henry v. Horstick 9 Watts 412. But there must be many things which are inadmissible, because in their very nature they are arbitrary, and partake of tyranny. Would it be competent, for example, to provide by law that while one’s taxes remained unpaid he should not be suffered to purchase provisions in the open market? No one, we think, would pretend this. But if this might not be done, how could a law be defended that should forbid one’s cultivating his land, or entering into the possession of it until his tax was paid, or that should require him to furnish a tax receipt to his debtor beforethe'latter should pay him, or to the vender of lands before the latter should perform his contract by conveyingtohim? In either case the delinquent tax payer is in some one or more important particulars put out of the protection of the laws.
We raise no question here of the right of the State to impose, as a condition to the use of its process, the payment of the tax levied in respect of such process. Harrison v. Willis 1 Heisk. 35. The ease - before us is not one of that, sort. It is a case in which the State declares that one party to a contract shall not perform it until the other presents evidence that he has paid his taxes. True the party restrained' is the State itself, but that can make no difference. What it can do in respect to the State contracts, it can do with equal-competency in respect to any other. The State as sovereign cannot take to itself additional powers or privileges or exemptions as a contractor beyond those to which it was-entitled under the contract as given.
We are for the reasons stated clearly of opinion that the State could not impose the condition which it now relies upon. The purchaser or his assignee is therefore entitled to his deed. But the State does not release any tax lien by giving the deed, and there can be no objection to the deed containing a recital to that effect if the State authorities shall deem it prudent to insert one.
Nothing in this opinion must be understood as authority for a case in which the certificate was issued after the act for taxing these interests and forfeiting them for the non-payment of the taxes was passed.
The writ of mandamus must issue.
The other Justices concurred. | [
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Cooley, J.
We have not been brought by the evidence in this case to the conclusion reached by the judge of the Superior Court. We are convinced that the testimony of Francis J. Chamberlain is truthful, and that it defeats the complainants’ case.
From this evidence it appears that, some twelve years or more ago Chamberlain’s first wife caused to be conveyed to him an eighty acre lot of land in St. Joseph county, which she had purchased with money received from her father, on a trust declared orally, that he would hold the same for their infant daughter, then six years of age or thereabouts. This the wife did in expectation of her speedy decease, and she actually deceased six months thereafter. In Chamberlain’s hands this lot was occupied and cultivated as part of a farm of 131 acres; the remaining 51 acres being owned by himself. It was all mortgaged by him for some $2,000. Becoming embarrassed in his circumstances he made an arrangement with his brother A. H. Chamberlain, whereby he exchanged the farm for certain property in Detroit, and caused the Detroit property to be conveyed to the defendant Jane E. Chamberlain, who is cousin to his daughter, on a verbal understanding that it should be held in trast for the daughter. It is this Detroit property which complainants, as judgment creditors of Francis J. Chamberlain, seek to reach.
If the farm in St. Joseph county had been in equity the property of Francis J. Chamberlain, a trust in respect to the Detroit property would have arisen in favor of his creditors when the exchange was made : Maynard v. Hoskins, 9 Mich. 485. B0ut he had encumbered the farm to an extent that exhausted his interest, and in equity the daughter was entitled to the avails of the encumbered place when it should be disposed of. So far as concerns the controversy with these complainants, it is immaterial that the trust was a verbal one; it could not have been enforced against him, but it was nevertheless his duty to recognize and execute it; and when he did recognize it in the exchange made for other property, his creditors could not complain. The claim of his daughter that he should perform the trust was quite as strong in equity as any claim of creditors can be.
Jane E. Chamberlain defends this suit in the interest of the daughter, and avows the trust in her answer. That is a sufficient declaration of trust in writing to answer the requirements of the statute of frauds: McLaurie v. Partlow 53 Ill. 340 ; Whiting v. Gould 2 Wis. 552; Woods v. Dille, 11 Ohio 455; Cozine v. Graham, 2 Paige 177; Chetwood v. Brittan 1 Green Ch. 450; Winn v. Albert 2 Md. Ch. 169 ; Kingsbury v. Burnside 58 Ill. 310.
The decree must be reversed, and the bill dismissed, with the costs of both courts.
The other Justices concurred. | [
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Cooley, J.
The case of Silsbee v. Stockle, just decided, ante, p. 561, governs this. The questions which arise on the merits of this case were in that also, and are decided against the positions on which the plaintiff in error relies. The certificate to the assessment roll in this case is differently worded, but we do not think that in substance it complies with the statute; on the contrary, so far as personal property is concerned, the reasonable inference is that the certificate was deliberately so drawn as to evade and defeat the statutory pivoose.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
We have in tliis case an-information in the nature of a quo warranto to inquire by what authority the respondents usurp certain franchises. ■ It is very brief, and gives the court to understand that on the eleventh day of June, 1880, the city of Detroit was and now is possessed of an island in the Detroit river, known as Belle Isle, which was and is held by said city under a purchase of the same by statutory authority, and that the respondents usurp and unlawfully hold, use and exercise the franchises of taking possession of said island for the purpose of improving the same as and for a public park without any legal warrant or authority whatsoever therefor. To this information the defendants demur.
The grounds of demurrer are set out in the respondents’ brief, and they appear to be the following: 1, That the information is contradictory in that it avers possession by the city, of Belle Isle, and also an unlawful possession in the defendants, for which reason no relief can be given ; and 2, That the usurpation alleged is not of any franchise whatever, and therefore is not the subject of any such inquiry.
The first objection is one of form, not of substance, and ought rather to be the subject of special demurrer. But we are of opinion that, even as a special demurrer, it would not hold good. There is an apparent contradiction, perhaps, but no necessary and positive repugnancy.
The city of Detroit is said to have been possessed of Belle Isle, and the defendants to have usurped the franchise of tahi/ng possession, etc. '“Possessed” is a variable term in the law, and has different meanings as it is used in different circumstances. It sometimes implies a temporary interest in lands; as we say a man is possessed, in contradistinction to being seized. It sometimes implies the corporal having; as we say a man is seized and possessed. But it sometimes implies no more than that one has a property in a thing; that he has it as owner; that it is his. In this sense it .may be used even though an intruder may have excluded the owner for the time being. And there is never any impropriety in making use of the tenn when the only possession the intruder has is apparently subordinate to that of the general owner.
In this case the city is said to be possessed and the respondents have assumed to take possession for the purpose of improving the same as and for a public park. A possession for this restricted purpose would not exclude the possession of the city as owner, but must be taken and deemed to be subordinate. At any rate, the general possession and the possession for the particular purpose may co-exist, and there is consequently no necessary contradiction in terms in the information.
The second objection is one of substance. If the taking possession of Belle Isle for the purpose of converting the same into a public park is not a franchise, it is manifest that this proceeding must fail.
It is said in behalf of the respondents that a city may hold and own lands for a public park as an individual may for a pleasure ground, and cause them to be beautified and improved as such; and that it would hold the same not in its public capacity as an agency of the government and subject to the unrestricted control of the State, but as a corporate individual, having private rights of its own, which it is at liberty to enjoy undisturbed by the State, and in the enjoyment of which the Constitution will protect its people. People v. Hurlbut 24 Mich. 44; Park Com'rs v. Common Council of Detroit 28 Mich. 230. And this is no doubt true. It is further said that a franchise is a royal privilege or branch of the king’s j>rerogative, existing in the hands of a subject (2 Bl. Com. 37), or to speak more correctly for this country, a special privilege existing in an individual by grant of the sovereignty and not otherwise exercisable. And further that a park in this country, whatever it may have been in England, is not a franchise at all, and the making of one requires no sovereign grant whatever. This may also be true.
But it is not to be held or assumed because a municipal corporation is possessed of certain property or rights which the State does not control, that therefore the idea of a public franchise in respect thereto cannot be predicated. A right may be private in respect that it belongs to the municipality for the exclusive benefit of its own corporators, and yet public in respect that there can be no property in it by individual citizens, and the right itself exists only by public and sovereign grant and as a franchise. Indeed, in respect to its water-works, sewers and public parks, a city would be without power to make them accomplish the purposes for which they are created, held and used, but for special franchises conferred upon it by the State for the purpose. The power to condemn lands, for example, is generally essential, but this is only given upon the ground that the end aimed at is public, though it is public only as concerns the particular city, borough, village, etc., to benefited. And then the public offices must be created for the purpose of establishing and caring for these municipal conveniences, and they would exist as franchises only. ■
But if we were to concede all that respondents claim in this regard the case would be still undetermined. This is not the ordinary case of a city park. Belle Isle is outside the city limits, and it is not pretended that the city could have purchased, improved and controlled the same as a public park except by virtue of special legislation. This legislation was obtained (Local Acts 1879, p. 215), and it not only empowered the city to purchase and create a debt therefor, but to erect a toll-bridge across to the island, and to extend its police authority over the territory. Here were very important franchises which the city could not pretend to claim except by this sovereign grant.
Now it is alleged in the information that the respondents usurp the franchise of taking possession and improving as a public park this island which the city has acquired for that purpose.The right of the city to take possession and improve lands thus lying outside the city limits as a public park, is beyond doubt a franchise. It must come by sovereign grant and not otherwise. If respondents usurp it they usurp a public franchise, public so far as concerns the city, which is all that is important here.
The demurrer must be overruled with leave to plead on 'payment of costs.
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Marston, C. J.
"Where a levy is made upon a stock of goods of a copartnership, is the firm as such, or the several members thereof, entitled to claim any part thereof as being exempt under the law of this State ?
This question has arisen in several of the States, and thus far there is a want of harmony in the answers given thereto. We must, therefore, in the light of those cases, look to the Constitution, statutes aud decisions of this State, and unfettered by previous decisions, construe the statute in accordance with the letter and evident spirit thereof.
Our Constitution, in section 1 of art. xvi, provides that “ The personal property of every resident of this State, to consist of such property only as shall be designated by law, shall be exempted to the amount of not less than five hundred dollars, from sale on execution or other final process of any court, issued for the collection of any debt contracted after the adoption of this Constitution.”
The eighth subdivision of our statute (2 Comp. L., § 6101), under which this claim comes, is as follows: “ The tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things, to enable any person to carry on the profession, trade, occupation, or business in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars.”
The exemption laws of this State have ever received a most liberal construction in aid of the wise and humane policy so clearly set forth in our Constitution and laws. As was said in Rosenthal v. Scott 41 Mich. 633, the laws securing exemptions are not to be frittered away by construction so as to destroy their value. It has been held, accordingly, that one whose principal business was that of blacksmith might manufacture a wagon during his leisure time and offer the same for sale, and that it would be exempt while in process of manufacture and while held for sale. Stewart v. Welton 32 Mich. 56. So a farm homestead right cannot bo put in jeopardy by the extension of village limits so as to bring such property within the village: Barber v. Rorabeck 36 Mich. 401. So the execution debtor is entitled to the full statutory exemption. Personal property subject to a mortgage for more than its appraised value, cannot be turned out to him : Bayne v. Patterson 40 Mich. 658. A homestead can be claimed in lands held in joint tenancy, or as tenants in common (Lozo v. Sutherland 38 Mich. 171), and in lands of which a party was in possession under a con tract to purchase: Orr v. Shraft 22 Mich. 261. So a house, exempt as such, might be removed to another parcel of land without danger of seizure while in transit: Bunker v. Paquette 31 Mich. 19. And a boarding-house keeper is entitled to the same exemption of household furniture as any other person : Vanderhorst v. Bacon 38 Mich. 669.
That the several members of a copartnership come within the language of the statute and Constitution, there should be no question, and that they by becoming members of a firm do not place themselves beyond the pale of the reason of the law, would seem clear. The same reason which exists for protecting an individual engaged in carrying on business would seem to apply with equal force to each and every member of a firm. The whole object of the. law is to prevent a person from being stripped of all means of carrying on his business, and in this respect no distinction can exist between those who are members of a firm and those who are not.
Indeed, it is not claimed that members of a firm are not equally within the words and protecting care of the Constitution and statute, but that the right is not given them, because of the peculiar rights of copartners to the firm property, as between themselves and also their creditors.
If the property is exempt under the statute, parties dealing with them must take notice of that fact, and it is no hardship whatever to enforce the right when the occasion arises which demands it. The creditor, in selling goods to an individual, knows that a certain portion of his debtor’s property is not and will not be subject to his demands. And so if he sells to a firm, and the firm or each member thereof is entitled to a statutory exemption, the creditor sells in view of the hazard. There may be eases where, as between the members (and the same perhaps would not apply as to creditors), where one or more of the firm had no interest in the goods, but only in the profits, and some question might arise as to the right of such copartners to claim any part of the property as exempt; but such is not this case, and we do not therefore pass upon that question. So other difficulties may arise. "Very many of these supposed difficulties are imaginary only, but we need not anticipate them. In my opinion the execution debtors in this ease were each entitled, under our Constitution and statute to his exemption: Russell v. Lennon 39 Wis. 570, and see the reasoning also in Stewart v. Brown 37 N. Y. 350. It is strongly urged that both may claim the same piece of property. If so, the officer may select for them where they cannot agree and therefore do not. Comp. L. § 6103.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell, J.
Plaintiff brought' replevin for wood and timber cut by defendant on section 19, town 48 north of range 26 west. They proved title from the State of Michigan by patent granted in 1873. In May, 1872, a corporation known as the Marquette & Ontonagon Railroad Company conveyed a part of the same section by warranty deed to the Morgan Iron Company, a mining corporation. On the 21st of October, 1874, it is claimed tlie Iron Company conveyed to the Atlantic Iron Company. It does not appear on what part of section 19 the wood was cut.
On the 29th of January, 1876, plaintiff levied an attachment against the Morgan Iron Company on the whole of section 19. On the L5th of August, 187S, plaintiffs, who had purchased under execution on their judgment in the attachment case, obtained the sheriff’s deed. The wood was cut after the sale on execution.
A question was raised concerning the identity of plaintiff with the Marquette & Ontonagon Railroad Company. In the view we have taken we need not pass upon the formality of the testimony, as the point is not material and there is probably no doubt of the fact.
The deed to the Atlantic Iron Company, if regular in form, on which a question is made, is not shown to have been authorized by the stockholders. It appears to have been signed and acknowledged by the secretary of the Morgan Iron Company, but it does not appear what right he had to make it. The mining company laws, as amended in 1869, expressly provided that no alienation, sale or mortgage of lands by a milling company should have any force or effect “ unless authorized by the vote [of] three-fifths in interest of the entire stock of said company actually present, or legally represented at some meeting of stockholders called, and notified in accordance with the provisions of the preceding section of this act,” etc. Comp. L. § 2888. Provision was añade by § 2889 for obtaining and recording evidence of such action.
In 1875 a law was passed which is supposed to have rectified this defect. Laws 1875, p. 128. This statute declares that “ when any corporation has heretofore disposed of its property, by sale or lease, in the usual manner in which corporations perform such acts, and has done the same in good faith and for a fair and valuable consideration, then such sale or lease is hereby declared legal and valid, although not done in the manner provided in section two thousand eight hundred and eighty-eight of the Compiled Laws of eighteen hundred and seventy-one.”
It is enough to say that under this last statute the deed is not made presumptive evidence of the rightful character of the sale. There must be proof, first, of a deed in proper form, and in addition thereto, of a sale in good faith for value. All of this must distinctly appear.
In the absence of such proof the title to section 19 was found to be in plaintiff either by original title or by execution sale. As execution purchasers they were entitled not only to “maintain an action for any injury to such real estate ” (Comp. L. § 4657) but to maintain against the person doing such injury the same actions they might have sustained had they been absolute owners at the time of the injury. Comp. L. § 4658.
They had therefore a perfect right to sue for the wood and timber wrongfully severed from the freehold; and as they owned the whole section by one or the other title, they were not bound to show on what particular part of it the wood grew.
Without therefore passing on the regularity of the record evidence of conveyances, which can no doubt be rectified if irregular, the plaintiffs made out a complete cause of action.
Judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Cooley, J.
This is a bill to foreclose a mortgage. The defendants claim the premises as bona fide purchasers under the mortgagor. The only question of law which is raised by the record is whether the mortgage is defeated by the conveyances to these defendants by reason of an error in record-, ing it. It appeared that the register of deeds was making use in his office of books made up of printed blanks and that in attempting to fill up one of these for the record of the mortgage in suit, he wholly omitted the name of the mortgagee. It is not pretended that in any other particular the record was .incorrect. The defendants bought without making an examination of the record, and there is no claim that they had express notice of the mortgage. The question, then, is whether the defective record was of any avail to complainant as constructive notice of his mortgage.
Under a New York statute which provided that no mortgagee should “defeat dr prejudice the title of any bona-fide purchaser unless the same shall have been duly registered,” Chancellor Kent held that “ the registry is notice of the contents of it, and no more, and that the purchaser is not to be charged with notice of the contents of the mortgage, any further than they may be contained in the registry. The purchaser is not bound to attend to the correctness of the registry. It is the business of the mortgagee, and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the bona fide purchaser.” The statute, he adds, intended the registry “as the correct and sufficient source of information; and it would be a doctrine productive of immense mischief to oblige the purchaser to look, at his peril, to the contents of every mortgage, and to be bound by them, when different from the contents as declared in the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase, without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intention, as it certainly is not the sound policy, of the statute. Frost v. Beekman 1 Johns. Ch. 288, 299. The mistake in the record in that case consisted in a misrecital of the amount secured. The case has been often followed. In Sanger v. Craigue 10 Vt. 555, the error consisted in misdescribing the land. In Jennings v. Wood 20 Ohio 261, the name of the grantor in a deed was incorrectly given. In Parret v. Shaubhut 5 Minn. 323, the mistake consisted in the omission of one of the subscribing witnesses, whereby the deed was made to appear insufficiently executed. In Shepherd v. Burkhalter 13 Ga. 443, the name of the mortgagor was not appended to the mortgage as recorded. In Sawyer v. Adams 8 Vt. 172, the deed was recorded in an unused book and not indexed. Terrell v. Andrew County 44 Mo. 309, was another case of error in giving in the record the amount of the mortgage, and the following are cases in which the thing conveyed was misdescribed: Chamberlain v. Bell 7 Cal. 292; Miller v. Bradford 12 Iowa 14; Baldwin v. Marshall 2 Humph. 116; Brydon v. Campbell 40 Md. 331; Breed v. Conley 14 Iowa 269; Gwynn v. Turner 18 Iowa 1. This court has also held that a sheriff’s notice of attachment was ineffectual where by mistake it failed to describe the land attached. Barnard v. Campau 29 Mich. 162.
On the other hand it has been held in Illinois, under a statute which gave a deed effect as against subsequent bona fide purchasers from the time it was filed for record, that the grantee was not affected by errors in recording; he having done all that the law required of him when he had filed his deed with the recorder. Merrick v. Wallace 19 Ill. 486 ; Polk v. Cosgrove 4 Biss. 437; Riggs v. Boylan 4 Biss. 445. So in Alabama, under a statute which made a conveyance “ operative as a record ” from the time it was left for registration, it was decided that a mortgage was a valid lien for the whole amount though incorrectly recorded as for a smaller sum. Mims v. Mims 35 Ala. 23. The following are cases which recognize the rule that filing a deed for record gives it effect as a record : Dubose v. Young 10 Ala. 365; Bank of Kentucky v. Haggin 1 A. K. Marsh. 306.
The different conclusions in these cases are the result in the main of differences in the statutes under which the records have been made or attempted, and perhaps if all the statutes had been alike, all the decisions would have been harmonious. The doctrine that he who claims the benefit of-registry laws must bring himself within them is universally admitted. It becomes important, then, to see what our own statutes are which bear upon this case; for these after all, and not the decisions of other States, must control.
¥e have no statute which makes a record necessary to the validity of a conveyance as between the parties. Godfroy v. Disbrow Wal. Ch. 260 ; Brown v. McCormick 28 Mich. 215. The recording is only for the preservation of evidence, and for notice to subsequent purchasers and encumbrancers. Every register of deeds is required to keep an entry book of deeds and an entry book of mortgages, each page of which shall be divided into six columns with the following headings : Date of reception; Grantors (or Mortgagors); Grantees, (or Mortgagees) ; Township where the lands lie; To whom delivered after being recorded; Fees received. In the entry book of mortgages he shall enter all mortgages and other instruments intended as securities, and all assignments of any such mortgages or securities ; and he shall note in such books the day, hour and minute of the reception and the other particulars in the appropriate columns, in the order in which such instruments are respectively received ; and every such instrument shall _ be considered as recorded at the time so noted. Comp. L., §§ 4226, 4227. These instruments are afterwards to be recorded at full length in proper books .procured for the purpose (Comp. L., § 4228), and a general index made of them all, with the names of the parties alphabetically arranged. Comp. L., § 4230.
This mortgage, therefore, was in the law considered as recorded, and for all the purposes of notice and protection was recorded when it was left for record, and noted in the entry book. No one pretends there was any defect or mis take in that entry. The complainant proved his mortgage with the register’s certificate of dne record indorsed thereon, and the defendants in their endeavor to show that it was not recorded in fact, showed only the error in copying the mortgage at large in the book kept for that purpose, and did not cpiestion the record in the entry book. It must-be assumed, therefore, that that record was correct, and that it showed the names of the parties, the date of record, and the township in which the land was situated. Usually in such offices considerable time must elapse between the entry and the actual copying of the instrument upon the record book, and during all that time the entry book will constitute the record, and will be the means whereby third parties will be notified of conveyances. The record in that book will not be complete •in itself, because it will not contain a particular description of the land, but it will direct the inquirer to the deed on file, and the two together will give full information. The one supplies all deficiencies in the other.
This mortgage, then, was recorded for the purposes of notice when it was filed, and remained effectual as against subsequent purchasers and encumbrancers for a time at least. When, if ever, did it cease to be recorded ? Was it when a more complete record wras attempted ? Did the failure to make the more complete record render nugatory the one already made?
No doubt the entry in the entry book loses its importance when the instrument entered is properly recorded, because from that time the completed record gives the fullest information, and it will be that to which the general index will refer persons' who are searching the records. But it will remain a record nevertheless, and it may have its importance in some cases. Every man who finds a mortgage recorded is notified by the date of the record that there is a record of certain particulars respecting the mortgage in the entry book, which he can at once refer to; and if any of those particulars chance to be omitted in the record book of mortgages, he understands where -he can obtain information concerning. them.
Now tliere was no omission or mistake in this case in respect to the name of the mortgagor. Any one searching for mortgages by him would have been directed by the general index to the defective record of this mortgage, and he would have found that record just as readily as he would have found it if correct. In this the case differs from one like Jennings v. Wood 20 Ohio 261, in which the name of the grantor was omitted in the record; for the means of tracing conveyances are lost when you do not find in the index, as grantor or mortgagor, the name of the party in whom the title appears to stand.
The defective record is of a mortgage which upon the face of it appears to be a mere nullity; for it is manifest that there can be no mortgage ■ without a mortgagee. But the very nature of the defect in the instrument is one that would instantly challenge attention; for no one for any conceivable purpose could be supposed to have an interest in placing such an instrument upon record. If actually defective as the record would indicate, no one could claim a lien by virtue of it; and if made dishonestly by the mortgagor, it could charge nothing, cover nothing and deceive nobody. The suggestion of mistake when the record is examined is inevitable and spontaneous.
It is not necessary, however, to discuss or raise any question of the implications that may be supposed to arise from such a record; and in this opinion we neither express nor intimate any opinion upon the question whether a purchaser would be bound to take notice of this record if it stood by itself, or would be put upon inquiry by it. This record does not stand alone. All persons are notified by the law that the entry record remains, and that it contains certain particulars, among which is the very one which is absent from the record where the mortgage is recorded at large.
It may be said that the entry-book 'record is temporary in purpose, being designed as a guide merely to the deeds remaining in the files, and being superseded by the complete record when made. But the admission of this does not fully meet the present case. If the register before the deed was recorded were to take and destroy it, the mortgage would not thereby be lost, but in the words of the statute would be still considered as recorded, and the entry would evidence the fact. If he made a pretense of recording it, without intending to do so in fact, but made a defective record purposely, the result must be the same. In each case the reason for the temporary record remains and is as forcible as ever. Indeed, the reason holds good in every case until a perfect record is made, which supersedes the entry record, because it embraces all the particulars there found and many others. It holds good, therefore, in this case.
We say nothing about and express no opinion upon any case that differs in its facts from this. Here the entry record has not been wholly superseded, and it still remains and purchasers must take notice of it. With the other record it shows a mortgage complete in all its parts; the one supplementing the other completely and giving to a purchaser information as full and definite as he could have if the original mortgage were spread out before him.
The decree appealed from must be reversed, and the cause remanded with directions to. enter decree for complainant in the usual form. The complainant will recover costs of both courts.
The other Justices concurred. | [
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Cooley, J.
The defendant in error brought ejectmeñt against Smith and Field to recover certain land in Mecosta county. To show title in herself she put in evidence the following conveyances: 1. A patent of the land from the United States to Byron F. Squires, bearing date August 10, 1859. 2. A deed from Byron F. Squires to John Squires, dated December 13, 1856. This was an ordinary deed of bargain and sale, with a covenant “ that the premises thus conveyed in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, he will forever warrant and defend against any person whomsoever lawfully claiming the same or any part thereof.” 3. A like deed from John Squires to the plaintiff, dated December 13,1S56, containing a like covenant. The patent was not recorded; the deeds were recorded in December, 1877. '
I. The deeds from the patentee and from John Squires were objected to as irrelevant and ineffective, for the reason that at their date the title to the lands had not passed out of the United States, and therefore they conveyed nothing. It is not disputed that a deed with covenants of seizin and title would be effectual to give the grantee the benefit of an after-acquired title under the doctrine of estoppel, but these covenants were absent from the deeds in question, and the covenant of quiet enjoyment, it is said, will not have the like effect. No reason is given for any such distinction, and it is not recognized by the authorities. Where one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his aftei’-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants have given. Long Island, etc., R. R. Co. v. Conklin 29 N. Y. 572; Doe v. Dowdall 3 Houst. 369.
II. The defendants below, to show title in themselves, offered in evidence the enrolled record and proceedings in a cause commenced in the Mecosta circuit court in chancery, instituted by Sextus N. Wilcox as complainant against Byron F. Squires as defendant, by bill filed February-23, 1870, in which Wilcox claimed title to the land under certain alleged conveyances on sales thereof for delinquent taxes, and prayed the court of chancery to quiet his title as against the claims of Squires. It appeared from the .enrollment that Squires was proceeded against as a non-resident; that he was brought in by publication, and did not enter an appearance or file any pleading, and that a decree that the title of Wilcox to the premises be quieted as against any claim of Squires was entered May 28, 1870. The plaintiff objected to the introduction of this evidence as irrelevant, and the court excluded it.
It will be observed that Byron F. Squires alone was made defendant in the chancery suit, and that he had at' the time no title to the land. The decree was that he be thereafter precluded from asserting title, and we are not informed that he does so. Obviously the claim of title which the complainant made was to Squires a matter of indifference, since it could not in any manner affect his interests. The tax titles had accrued after he conveyed, and enforcing them neither took from him anything, nor made him liable upon his covenant. Therefore if knowledge of the suit had come to him, he would probably have given it no attention, because the result of it could not concern him. The decree as to him might as well have been left unmade.
It is said, however, that this suit against a party who had no interest to.be affected by it, and no occasion to defend it, lias been effectual to cut off the right of the party actually concerned, and who probably never heard of it until the decree was presented which was to be conclusive against him. The only reason given for this position is that the plaintiff, by not recording her deed, and suffering Byron F. Squires to appear of record as apparent owner, “ has allowed him to appear to the world as the owner of the land now sought to be recovered by her,” so that “ Squires’ day in court was her day, and she must accept the consequences of her own acts.” It is, then, upon her failure to place the evidence of her title upon record that this effect of the decree upon her rights is to depend.
The general rule that a judgment or decree binds those only who are parties to it is not disputed. There are a few well-understood exceptions, of persons who, subsequent to the institution of the suit have acquired interests or claims under the parties; but the plaintiff was not one of these, for her ‘ title had accrued before. If she loses her title, then it must, be by force of the recording laws; for independent of these ’ there is no principle of law that could bind her by the judg- ■ ment against one whose interest she had acquired long before! the suit was instituted.
But the recording laws could not help the defendants. Those laws point out specifically the danger to which the. party failing to record his title is exposed, and the courts cannot extend or add to it. Columbia Bank v. Jacobs 10 Mich. 349; Millar v. Babcock 29 Mich. 528. The danger is indicated by § 4231 of the Compiled Laws: “ Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” By “subsequent purchaser” in this section is meant a subsequent purchaser from the same grantor. Mr. Wilcox was not such a purchaser. He does not claim under Squires, but by conveyances from the State which, if valid, should cut off the Squires title altogether. Moreover if he were claiming under deed from Squires, the previous unrecorded conveyance would be valid as against him until he had shown the payment of the purchase price. Shotwell v. Harrison 22 Mich. 410. The mere institution of suit cannot make one a bona fide purchaser.
As the tax deeds were not put in evidence, the record presents no question arising upon them.
The court did not err in its ruling, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
This case, which was before us at the January term, 1876, and reported in 33 Mich. 319, now comes up again on questions which we cannot distinguish from those before decided.
The court below ruled in accordance with our decision as there reported that the instrument there set forth at length was not a chattel mortgage or any security of the same or similar character, and could not be made out as such by parol evidence ; but that whatever its nature, it could be shown to have been fraudulent.
As we have already so decided we do not think it proper to do more than affirm the judgment with costs.
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Cooley, J.
The defendant was prosecuted and convicted on a charge of assault with intent to kill and murder one John "Wyant. The evidence tended to show that the assault was made with a knife while Wyant was riding upon a horse in the public highway, and that a downward stroke of the knife cut the clothes of Wyant and inflicted a wound to the horse below the backbone, over the swell of the ribs, cutting the hair off square across over the wound. The case comes before us on exceptions.
Several of the exceptions are to the rulings of the court in the reception and rejection of evidence in respect to matters where we think the court had a plain discretion. One of these relates to the testimony of John Bennett, who gave important evidence for the prosecution. On cross-examination he was asked whether he did not steal overshoes from one Allen, and replied that he never stole overshoes. He was then asked whether Allen did not follow him to his house and take these shoes, and replied “ No.” Also, whether he was followed and the overshoes taken from him, and again replied “No.” A further question whether any one followed him and took the overshoes was not allowed to be put. No reasonable complaint can be made of this. The court had already been liberal in permitting cross-examination respecting this collateral matter.
Another witness testified to seeing the defendant have a dark-handled knife, sharp on both edges, more than a year before the alleged ofíense. The witness was asked to describe it, and this was objected to for remoteness, but allowed. It was certainly very remote, but the question how far back the prosecution shall be allowed to carry such inquiries must always be one of some difficulty, and must be determined by the circumstances. Exact rules to guide the trial court are impossible. Besides, the description of the knife had already been given in part, and the witness only said afterwards, it was not a knife that shut up.
Eor the defense a witness was asked whether the defendant was not a shoemaker by occupation, and the court sustained the objection to the question. It is suggested now that his •occupation would account for his possession of the knife; but the suggestion was not made in the circuit court, nor •does any other reason appear to have been given for the proposed evidence. Without explanation the evidence seemed to be irrelevant. In none of the above cases was the action of the court clearly erroneous, and by none have we reason to believe the defendant was injured. These exceptions cannot therefore be sustained. Strang v. People 24 Mich. 1.
To show that a downward stroke of a knife would not cut the hair of a horse square off, as that of the horse in question was said to have been cut, the defense called one Spearing as ■an expert, who testified that he had been farming about seven years, during which time he had been in the habit of doctoring horses, and performing surgical operations upon them; that he had been employed some for that purpose; had had experience in cutting horse-flesh when alive, and in cutting the hair upon a horse, he could not tell how many times. He was then asked whether, in his opinion, in cutting an animal in the way this horse was cut, the hair could be cut clean the full length of the wound. The question was objected to and ruled out.
The ruling may be justified on the ground that the witness had not shown that he ever cut or attempted to cut hair in the way suggested, and was therefore not an expert at all. A horse’s hair, it may be presumed, is seldom cut in that way, and from the ordinary methods of cutting, it is presumable the jury could judge as well as the witness whether the alleged downward stroke would or would not cut the hair square off. It did not appear, and is not supposable, that in a surgical operation it would be important to cut or attempt to cut the hair in that way.
Three exceptions were taken to portions of the charge to the jury. One of these was to the judge reading to the jury remarks of this court concerning the testimony of experts, contained in the report of the case of People v. Morrigan 29 Mich. 8. The objection seems to have been that the judge read a certain paragraph calculated to depreciate the value of expert evidence, without giving the context, or a statement of the facts which called out the remarks read. But the judge had an undoubted right to make the same remarks himself as a part of his charge, and it was immaterial whether they were original with him, or were taken at second hand from some other judge or other authority or author.
The most serious difficulty in the case arises upon certain portions of the charge which relate' to a claim, or rather a suggestion on the part of the defense, that the complaining witness must himself have inflicted upon the horse the in jury which he swore had been done by the defendant. The charge is not given in full, but the following paragraphs appear :
“You recollect the testimony of John "Wyant the complaining witness, who swears that he met this man there on the ^highway, in the middle traveled track ; that the other man got off his wagon and stood by the road, and when he came along swore he would kill him, and struck at him with his knife. You recollect how he testified what the effect of that blow was. The defendant alleges that this is a mere fabrication; that it is a put-up job, and that no assault occurred there at all. They say that this testimony is manufactured by the complaining witness, John Wyant. Now you will recollect the circumstances in this case. Wyant, you remember, went to Pokagon before the defendant started, and met the defendant as he was coming back. You are to consider what the probabilities would be of his originating that design, or whether he went prepared for any such design or not.
“ It is claimed by defendant that such a wound as this could not have been made with a knife at that time. Now to determine that question you are to look at the probabilities of the case. If it was not done there, the prosecution claim and bring testimony which they claim shows that it was done then and there, but if it was not done then it remains’ for the other side to show when and where it was done.
“ What are the probabilities as to a plan of that kind being concocted upon the meeting of these persons, without any evidence showing that such a design had been formed beforehand ? If there is no such design shown by this man Wyant, is entirely for you to say. If there is none, then it is for you to say what the probabilities are of his originating such.a thing upon the meeting of these men, and going after lie got borne to have him arrested. This is a matter proper for you to consider in determining whether there was an assault or not.
You will recollect the testimony of Mr. Reed ; you recollect that Reed testified that when lie came to Berrien with the horse he was upon the horse; you remember what he said about the wounds, and as to' the cut in the overalls, whether they agreed or not, and all about these circumstances. You will remember his testimony. It is not worth while for me to repeat it: it is proper for you to consider whether or not a person sitting upon a horse and making a wound in that way could have made a wound in the shape that this is : whether the tendency of a wound by a person sitting upon a horse, attempting to manufacture this testimony, whether it would be downwards or this way, or whether it would be upwards ; that is a matter for you to consider, whether a man sitting upon a horse attempting to make such a wound could have made such a wound as this is.”
This last paragraph is objected to, as tending to lead the jury to suppose the theory of the defense was that the complaining witness cut the horse himself while sitting upon his back, when in point of fact they had not attempted to support such a theory by evidence. But the.bill of exceptions does not contain all the‘evidence, or negative the fact that the defense may have advanced such a theory. The presumption is the judge’s remarks were warranted by the case the defense attempted to make.
A more serious question arises upon the paragraph in which the judge seems to throw upon the defendant the burden of showing when the wound was inflicted if not at the time when the parties met upon the highway. If this paragraph gives the exact words of the circuit judge, he certainly expressed his views very loosely; not to say incorrectly.
It is manifest, however, from the bill of exceptions, that the whole charge is not given,. but that we have only the questions raised upon detached sentences. The paragraph in question also reads as if something may have been omitted, or the judge’s remarks inaccurately reported ; and although we must assume the contrary, the awkwardness of expression here may well invite additional care in scrutinizing the remainder of the charge in order to determine whether injustice has probably been done to the defendant.
If in fact the horse was not cut at the time the parties met in the highway, it was plainly immaterial when he was cut; for the ease of the prosecution depended upon their making out that the injury was committed then and there. If, therefore, the judge had told the jury “ the prosecution claim that the injury, was done then and there, but if it was not done then and there, it is immaterial to this case when it was done,” he would have been entirely correct. When instead of this he told them “ it remains for the other side to show when it was done,” did he mean or is it likely he was understood to mean, that when the prosecution failed to establish their case, it was still necessary for the defence to account for a wound which the prosecution had failed to show he had inflicted.
We have examined this record with care and my brethren are all of opinion that when the whole charge is considered there is no reason for believing the jury to have been misled. The defendant, if guilty at all, was guilty of making the assault at the time and place and in the manner testified by John Wyant. The judge correctly instructed the jury that the case for the prosecution must be made out, not by a mere preponderance of evidence, but beyond a reasonable doubt. They must then have been satisfied beyond a reasonable doubt that the cutting was done by the defendant, as testified to by the- complaining witness. It does not appear that there was any evidence that the cutting was done at any other time or place, but the defence suggested that it may have been so done, in order to fix a false charge upon the defendant. The judge’s remark made after all the evidence was in, that if the cutting was not done as charged, it remained for the defense to show when and where it was done, could only have referred to his suggestion, and must have been designed to direct the attention of the jury to the theory whereby the defense threw the blame upon Wyant himself. The jury could not have understood the judge as meaning that if the offense was not committed, the defence must nevertheless show when and where the cutting was done, for this would have been in direct and positive contradiction to the previous instruction, and to the whole tenor of the charge. He probably meant, as we all think, no more than this: that it was open to the defence to advance by suggestion or argument any theory as to when and where the injury was committed if not as the prosecution alleged.
On the whole record the court is satisfied no wrong has been done to the defendant by the rulings or instructions of the circuit judge, and he must be advised to proceed to judgment.
The other Justices concurred. | [
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Campbell, J.
McGuire was convicted before the Superior Court of Grand Rapids of robbery, while armed with a dangerous weapon, committed on one Albertus Meyer. Meyer testified positively to the robbery on the night of November 17, 1879, while he was walking home with his little boy. He was approached from behind, gagged and thrown down, and his money stolen. He could not recognize the two men who robbed him before they ran out of sight, but the boy recognized McGuire and identified him. The most important * evidence, therefore, was that of the child, who was a few months over six years old.
An exception was taken to the examination of this boy, on account of his extreme youth, and the judge who tried the cause had some hesitation about it. He, however, took the lad into his own room and had a long conference with him, in addition to what appeared in court, and he finally' came to the conclusion that the child was sufficiently conscious of the duty of speaking the truth that he might be received as a witness, subject to such cautions to the jury as were proper concerning his statements.
We held in Washburn v. People 10 Mich. 372, that the reception of such testimony was permissible where the judge was satisfied. We think that in the present case the course taken was such as to justify the judge in doing as he did. The boy was the only witness who could recognize the prisoner, and it was therefore .important to receive him if there was any sound reason to believe he could give reliable information. There is of course some danger that a child of tender years may be influenced to tell what is not true. But the inability of such an inexperienced boy to keep up a consistent false story through the various questionings of a trial is a pretty safe guard against any great danger on that head. He is far more likely to answer wrongly from not fully understanding questions put to him, than from deliberate falsehood. His method of telling his story here was simple and childlike, and, so far as we can tell from a paper description of it, was candid and honest. At any rate the jury must have thought so, and we are not surprised that they did. The judge cautioned the jury fully and clearly on the necessity of sifting his testimony very thoroughly. He could not well have been more explicit. "We cannot think the danger of receiving such a witness is any greater than that of rejecting him.
On the cross-examination, in answer to some questions concerning his recognition of the respondent at the police station, he was asked whether his father had not told him respondent was the man, and he answered in the.affirmative to this and one or two similar questions about' the recognition. And while the questions were not quite broad enough to exclude any other knowledge, they had with the answers a bearing on the fact of his knowledge. When the father was examined as a witness he was asked if he had ever told the boy respondent was the man who assaulted him, and allowed to answer, and replied in the negative. This is also assigned as error.
We do not think this was improper. It was in no sense an attempt to impeach the lad, for it did not refer to any contradictory statements, out of court. It seems to us competent evidence to show facts making it unlikely that the boy had made a conclusion of identity from any but proper data. The whole facts were before the jury. If they thought.he had intentionally stated what was not true as to his source of knowledge, or if they thought the father had prompted him and then denied his own action, they had seen both when testifying and could judge accordingly. They evidently concluded that the. cross-examination did not bring to the child’s attention the point whether his recognition was spontaneous or only the result of prompting from Iris father. Perhaps one of the best means of judging whether testimony is proper is to consider what would happen from its exclusion; and we think that where a child or a person not familiar with the full bearing of such questions as are put to him makes answers that appear ambiguous, or that raise suspicions of collusion, it is not improper to show what the facts are. It must be borne in mind that the recognition of the assailant is in itself •a circumstance bearing on the merits, and not a mere collateral matter.
A witness Britton, who was confined in jail at the same •time with McGuire, testified to an account given by the latter of the robbery, and on cross-examination gave the names of several persons who were in prison at the time, and among •others a man with red whiskers, who is claimed to have been one James Carson. Several questions put to Carson concerning conversations with McGuire in Britton’s presence were rejected as not referring to this particular conversation. We have some doubt whether some of these rulings may not have gone too far. But finally he was allowed to answer that he heard a statement made by McGuire in Britton’s presence, and respondent’s counsel, without any ruling against it, dropped the inquiry without pursuing it further. We are satisfied that no one understood there . was any objection to testimony which would contradict Britton, or explain what he referred to, and that respondents’ counsel, when the door was fairly opened to the inquiry, chose to leave it as it was. There was therefore no error by reason of the previous rulings, which we think were not meant to shut out proper 'questions. We see no pertinence in the inquiry concerning the previous reading of newspapers referring to the robbery.
We think the court charged as fully and carefully on the weight to be given to the child’s testimony and the caution to fbe used in acting upon it as was necessary, and that nothing important was omitted that did not come within the general instructions. What was said about the prisoner’s statement left its whole effect to the jury. We are not informed what •it was, and cannot assume it required different treatment, We are unable to say that the jury would have been made any wiser by any other instruction concerning reasonable doubt. If they understood English they could get little aid from any closer definition.
We discover no error, and the court below should be advised to proceed to sentence on the verdict.
The other Justices concurred.
The court charged with regard to “ reasonable doubt ” as follows : “The expression itself seems to comprehend the whole subject matter. Seasonable doubt, of course — that is, not a far fetched one; it is not a speculative one; it is not an arbitrary one; but it is just what it assumes to be, a reasonable doubt. If you, after looking over the testimony, and considering all the facts proven to your satisfaction in the case, and the natural circumstances that surround those facts — if you are still unable to say drat Ihe prisoner is guilty, it is your duty to acquit. And that, we apprehend, is what is understood by a reasonable doubt in the law.” | [
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Graves, J.
Complainant obtained a judgment against the defendant Andrew Kruger on the 4th of January, 1879, for $195 damages and costs; and on the 13th of the same month the latter mortgaged his estate, liable to execution, to his sister, the co-defendant. On the 5th of June following, the complainant caused an execution on his judgment to be levied on the mortgaged property, and soon afterwards filed this bill in aid of the execution. The bill alleged that the mortgage was made without consideration, and with intent to defraud creditors. The defendants answered and denied the fraud, and alleged that the security was given in good faith and for an actual indebtedness. The circuit' court decreed that it was without consideration, and given to defraud complainant, and that it should be held null and void as against him; and moreover, that it .should be discharged of record, and in case the defendant failed to discharge it, that it should be competent to record the decree as a discharge.
The question in the ease is whether the mortgage was made on an honest consideration ; and it devolved on complainant to make out that it was not, or in other words, that it was fraudulent; and (as in every issue of the like nature) it was necessary to adduce a species and amount of proof so convincing as to cause a very hearty and firm belief of the fact. It was not sufficient to entangle the mind in perplexity, or generate mere doubt or suspicion. A party charging fraud is not entitled to succeed unless his proof creates a clear and full impression that the charge is true. It is unnecessary to write o.ut a discussion of the evidence in the record.. Upon close examination it fails to satisfy the understanding that the mortgage was a mere sham. It may have been, but there is too much room for thinking it may not have been.
The various circumstances connected with the relations of the parties and their contentions, their foreign birth and antecedent and present course of life and social and domestic characteristics have an influence and lend a peculiar color to the chief facts.- It is quite impossible to give the same meaning to some of the prominent circumstances, or to make the same inferences from them that would be reasonable and natural in case the parties had grown up here under the influence of our own institutions and conditions. As it is, the case is not made out. My brethren go somewhat further and think the evidence is quite decisive in favor of defendants.
The decree should be reversed, and the bill dismissed with costs of both courts.
The other Justices concurred. | [
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Graves, J.
This record is remarkable. It shows that the plaintiff sued the county by declaration on the common counts, and it contains a bill of particulars furnished by the plaintiff, a plea of the general issue, a demurrer to the declaration but no joinder, a stipulation to put the case on the “jury docket” for the May term of 1878, and a final judgment on the demurrer against the plaintiff in August of that year. The date of the plea does not appear, and whether it preceded or followed the demurrer is therefore not explained. In case it was put in before the demurrer, the demurrer was not regular. (The plea to the merits should have been withdrawn. If it was put in afterwards the effect was to waive or supersede the demurrer, j There cannot be an issue of fact and one of law on the same record at the same time in respect to the same matter. They are incompatible. One admits what the other denies. (In the order of pleading the defense by demurrer is required to be taken before going to issue upon the fact, and in ease a plea has been made and it appears desirable to demur to the same count or counts the plea should be withdrawn from the record. So long as it stands it excludes the right to demur. If the plea is put in subsequent to the demurrer, it overrules it.} These are familiar rules, and the record contains no explanation in terms to rescue the case from their operation.
But let it be assumed that the demurrer was in the record to be adjudicated. The claim is made that the bill of particulars became incorporated in the. declaration, and that it hence appeared that the cause of action was not suable against the county, and this seems to have been the theory on which the court below proceeded in allowing the demurrer. Of course this view is wholly inadmissible. The object of the practice for the production of bills of particulars is to obviate the uncertainty of general pleading. The intent is to secure such information as will enable the parties to make an intelligent preparation for trial, and to enter upon the. investigation before the court or jury with an understanding as to what is really in controversy. The bill is often mentioned as being an amplification of the declaration or as entitled to be considered as a part of the pleading. But such expressions are metaphorical. The bill is never in strictness a component of the pleading. It may have the effect of a pleading in so far as it restricts the proof to what it contains. To consider it as pleading would be a circuitous return to the practice of special pleading within certain limits; and this would contradict one of the necessary implications of the introduction of bills of particulars. The remedy by the method of general pleading was to be improved without impairing its convenience and without .bringing in the technicalities and refinements of pleading. No one has ever supposed the service of a bill of particulars constituted an actual amendment of the pleadings, or that an amendment of the bill operated as a change of the issue on the record. And a plea or demurrer to a bill of particulars would be an anomaly. The declaration in the record was no more subject to demurrer after the bill of particulars than it was before. It continued to be the usual declaration oh the common counts, and whatever question there was or might be in regard to the right to sue the county for matters described in the bill of particulars, would have to be raised in some other way. It would naturally arise at the trial. It was not impossible that the bill might be entirely changed so as to obviate all objection.
The result is that the only point the demurrer could raise was the abstract right to bring a suit by declaration on the common counts against the county, and in regard to that there is no room for discussion. The right is plain. Endriss v. Chippewa County 43 Mich. 317.
The judgment must be reversed with costs and the case be allowed to proceed according to law.
The other Justices concurred. | [
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Graves J.
In December, 1871, complainant joined as surety with the defendants Quimby and Hooker on the bond given by defendant Hatheway pursuant to the statute as executor and residuary legatee under the will of his father, Gilbert Hatheway, then lately deceased, and about a year ago he filed this bill against his principal and co-sureties for discovery and relief in equity.
The final purpose of the bill is to transfer the whole remedial jurisdiction over the settlement of the estate from the court of probate to the court of chancery, and to compel, by the authority of the latter court, the executor and residuary legatee and the co-sureties to discover and trace from the death of the testator to the present time all parts of the estate, and through a receiver to enforce an absolute surrender by the executor and legatee, of the whole assets to the court in order that it may assume to conduct the administration to final settlement. No such bill can be maintained. The court has no jurisdiction to override the title of a residuary legatee in the way and on the grounds set forth and the complainant has mistaken his remedy if he has any.
There may be cases no doubt when the court, proceeding in accordance with its own maxims and keeping within the limits given to it in this State, would find some way for ■relieving the surety by hastening the principal and preventing him from using his opportunity to oppress and defraud his surety.
The present bill proceeds on a theory altogether different, .and it was properly dismissed. | [
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Graves, J.
This case was first tried before a justice of the peace, and was taken by appeal to the circuit court. The action was brought by Neuberger as indorsee of a promissory note given by the Wetmores in their partnership name of E. A. Wetmore & Co. to Martin Pattison or order, on the'26th of August, 1878, for $250, payable thirty days after date at the Citizens’ Bank at Marquette. The Wetmores pleaded the general issue with notice of set-off, and the jury finding in favor of Neuberger they brought error. The fact is unquestioned that the note was given as alleged and that Pattison the payee transferred it to Neuberger after maturity. Again, there is no dispute about the origin of the note. It grew out of a lumbering transaction between the Wetmores and Pattison.
May 17, 1878, they entered into the following written agreement: “Memorandum of agreement between Martin Pattison, of the city of Marquette, of the first part, and E. A. Wetmore & Co. of same place of second part, witnesseth: That said Pattison agrees to get out and deliver to said Wet-more & Co. at Marquette in such booms as shall be furnished, Norway logs enough and of suitable length and sizes and qualities entitled to work into the following bill and to work to good advantage and make lumber suitable to be accepted by the parties contracting with said Wetmore & Co. as follows : 200 pieces 5x12 — 28 feet long, for car sills; 200 pieces 5x12 — 30 feet long; 1500 pieces 4-J-x8 — 28 feet long; 800 pieces 4|x8 — 30 feet long; 600 pieces 3£x6 — 28 feet long; 400 3£x6' — -30 feet long; 400 pieces 5x13 — 33 feet long; 800 pieces 4f-x8 — 33 feet long; 400 3^x6 — 33 feet long; 150 thousand feet 2x10 — 16 feet long; 150'thousand feet 2x10— 18 feet long, to be good, live sound timber. The logs to be cut and delivered as soon after June 1st, 1878, as can bo conveniently done, and all to be delivered by September 1st, 1878.
“In consideration of the above delivery said Wetmore & Co. agree to pay said Pattison five dollars per thousand board measure, scaled in the boom at their mill, and to guaranty said Pattison that he shall not pay over fifty cents per thousand for towing said logs and not to exceed one dollar per thousand feet stumpage on any land owned by Lac La Belle Co., Marquette Lumber Co., or W. L. Wetmore and Bay Furnace Co.
“ Final settlement to be upon the delivery of all such logs; also said Pattison is to cut and deliver to said Wetmore & Co. white pine logs up to 200,000 feet, board measure, of good sound logs not culled out for board timber, but taken as the timber will cut, taking all good, sound trees, and to be cut such lengths as may be directed lay said Wetmore & Co., and for such logs said Wetmore & Co. are to pay to said Pattison four dollars and fifty cents and to give same guaranty as to cost of towing as with the Norway logs named above, and payments on both Norway and white pine to be made as work progresses so as to enable work to go on. In scaling logs all logs over 24 feet to be scaled in two lengths.”
On the strength of this contract Pattison cut and delivered to the Wetmores a great quantity of logs and they in return made heavy payments and advances and the note in suit was given to be applied upon the contract. The Wetmores claim that on occasion of its coming due and also on its transfer subsequently to Pattison and at the time of their getting notice of the transfer, their payments and advances were in excess of the entire demands, in favor of Pattison to an amount considerably beyond the sum called for by the note and that such excess was and is a lawful set-off fully sufficient to extinguish it.
Assuming Wetmore’s explanation of the state of the account to be correct, it appears that there existed and now exists a balance in their favor of between four and five hundred dollars. The validity of this balance is accordingly important. The plaintiff below has assailed it and the questions in the ■case arise out of that contest. The contract quantity of logs was not furnished; but the plaintiff below avers that the agreement was broken by the Wetmores. It was part of their contract with Pattison that he should riot be bound to pay above one dollar per thousand feet stumpage on any land owned by Lac La Belle Co.
On the 4th of June following they made a purchase of the stumpage on certain land, which, according to the indications in the case, was Lac La Belle Co. land, and they claim to have paid $1000 for it. In their account they charge Pattison with this $1000 in this form : “ August 3. Paid Lac La Belle Co. stumpage as per verbal agreement with Martin Pattison about May 12, 1878, $1000.” It is conceded that Pattison cut enough there to come within a trifle of $600 at the stumpage rate of one dollar per thousand, or the rate which the Wetmores had agreed by their written contract should be the outside limit; and the court ruled in substance that the charge in the account was a proper one to that extent. The rest of it was the subject of earnest contro- • versy blit the record is much confused.
There was no writing between Pattison and the Wetmores in regard to their buying for him or on his account this body of stumpage for $1000 and the written purchase actually made was in their own name and apparently on their own account. Their claim seems to be, in reference to it, that subsequent to their written agreement with Pattison of May 17th it was orally agreed between them that they should buy this tract of stumpage at $1000 and pay therefor and that he would take it in their business arrangements and pay them the $1000 so that they should be exposed to no risk, and that they made the purchase on that understanding and ■debited him with the expense in their account. ' Assuming this explanation to be true the transaction was within the statute of frauds and the objection raised on that theory was well taken.. The scheme contemplated that the Wetmores should provide the purchase money in advance, and in virtue of a power from Pattison expend it in buying an interest in land in his favor. Such an arrangement is destitute of force unless-manifested by writing: Comp. L. § 4692; Russell v. Myers 32 Mich. 522; Colgrove v. Solomon 34 Mich. 494; Hillebrands v. Nibbelink 40 Mich. 646. The contract was entire and the stipulation for the Wetmores to advance the money cannot be separated from the rest.
If the power and obligation to buy for his benefit fall for want of writing and' have no force to bind him, the right to charge him with the cost of executing the power and carrying out the obligation must share the same fate. Greeley v. Stilson 27 Mich. 153, and Haskell v. Ayres 35 Mich. 89 do not apply. Their doctrine is that so far as parties, before revocation, execute in good faith an oral agreenient for the sale of standing timber, the sale may, for the purpose of their protection, be considered as a license for what has been fairly and seasonably done.
After the defense rested, the case of set-off made on that side was sought to be opposed by a hind of counter claim on the part of Neuberger, the plaintiff below, and the court, proceeding on the idea that the matter produced by the Wet-mores as set-off might be so encountered and be wholly or partly neutralized or extinguished in that way, received evidence to show unliquidated damages caused to Pattison by certain alleged breaches by the Wetmores of the contract of May 17th, and this evidence was submitted to the jury and seems to have been acted on.
In this the court erred. The right of action, if any, on account of a violation by the Wetmores of that contract does not seem to have become the property of Neuberger, and there is no apparent ground entitling him to make use of it to swell his own claim, or which is the same thing, to reduce or cancel the set-off. For all that appears, whatever cause of complaint may have arisen for any breach of the contract on the part of the Wetmores still belongs to Pattison, and in case the subject is gone into in this action in favor of Neuberger, there is no reason for supposing it would preclude Pattison from hereafter suing the Wetmores for the same thing. This case would be no bar. Hence, whether the general state of the litigation and the nature of the counter claim as unliquidated damages, would or would not alone hinder the introduction of such matter in rebuttal, the objection to it just stated is sufficient.
Complaint is made of rulings concerning three items of charge for money paid for-towage, but the record is so ambiguous that it is hardly safe to attempt their investigation. It is not very probable they will turn out to be essential to the disposal of the case.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Graves, J.
This case is governed by Chapman v. Spears 43 Mich. 541, decided at this term. The case was left to rest on the disclosures, and there is no room for saying that they established either an indebtedness to Ward or possession of any property of his at the time of the service of the process. Where, in these proceedings against garnishees under the statute relative to justices’ courts, the plaintiff contents himself with the showing obtained from the garnishee, it must be clear and distinct in the statements or admissions on which recovery depends, or be considered insufficient.
The judgment must be reversed, and one entered here for defendants, with their costs of all the courts.
The other Justices concurred. | [
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Marston, C. J.
Wilson brought this action of replevin to recover possession of certain stave bolts which the defendant, while acting as constable, justified taking upon an execution issued upon a judgment rendered in favor of Samuel Clemens v. David Center. Upon the trial, on cross-examination of the plaintiff and his witnesses, counsel for defendant sought u to show that the transfer from Center to Wilson was a fraud on creditors and on Clemens as such creditor,” and for such purpose th.e court admitted testimony, although properly •objected to, having such tendency. The judgment under which the defendant justified was afterwards received in evi dence, but finally ruled out, not being considered a valid judgment.
The judgment having been held invalid, there was no foundation for any one to attack the sale from Center to plaintiff as fraudulent, and the first and second requests of plaintiff to charge should have been given.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred.
The first and second requests were:
“1st. The court having held that the judgment and execution under which the defendant justified in this case, is void, the defendant is not in a position to attack the transfer from Center to Wilson, if the jury believe there was such a transfer.
“2d. The question of fraudulent intent in the transfer from Center to Wilson cannot be passed on by the jury in this case, as the defendant is net a judgment creditor or entitled to attack the transfer on account of fraud.” | [
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Campbell, J.
Avery & Co., the plaintiffs, recovered judgment in the circuit court for the county of Saginaw against the defendant for $453.52 and interest, being city taxes paid under compulsion and protest as unlawfully assessed. Judgment was given in their favor for the full sum claimed. The facts show that plaintiffs, who reside in East Saginaw, were assessed there in 1879 as partners, for the sum of $6000 as the value of their personal property. When the board of review met, it held sessions for ten days, during which plaintiffs made no complaint or appearance; and on the last day of the meeting the assessment was changed by. the board without notice to them, and without any proceeding beyond this: “ Supervisor Edsall moved to raise the personal assessment of Avery & Co. from $6000 to $28,000. Carried.”
The tax paid was on the assessment as thus raised. The city claim the change was lawfully made.
The assessment of property is required to be made in the first instance in conformity with the general State law, except as to the time of its completion, and the manner of review. When the assessment is completed it is filed with the city clerk, and reported to the council, who appoint the time and place of meeting of the board of review, of which ten days’ notice is to be given. Charter, tit. v, § 5.
The assessor, city attorney and supervisors are made such board of review, and are required to meet at least three and not more than ten days. The charter provides that “ they shall have power, and it shall be their duty to examine said assessment roll, and correct any errors found therein, and reduce or increase the valuation of any property found on said roll, and to add thereto any taxable property in said city that may have been omitted, and to value the same as provided in the general tax laws of this State.” “ Any person desiring to do so, may examine his or her assessment on said roll, and may show cause, if any, why the valuation thereof should be changed, and the said board shall decide the same, and their decision shall be final. The concurrence of a majority of said board shall be sufficient to decide any question of altering or correcting any assessment complained of ; and the members of the board shall have power to administer oaths and examine witnesses the same as supervisors of townships, as provided by the general laws of the State. The said board shall keep a record of their proceedings, which shall be signed by a majority of said board, and deposited with the city clerk.” Charter, tit. v, § 6.
It is observable that this charter, in order to perfect the assessment, adopts the general law as furnishing the means and analogies of procedure. The Constitution requiring assessments to be at the true cash value, it became necessary, in order to protect tax payers, tp have some means provided whereby in case of an overvaluation they might have it corrected: The constitutional provision is as much designed for securing against overvaluation as undervaluation. The general tax law furnishes very frill means to the assessing officer for getting at the correct materials for a true assessment, but it also requires him to make an investigation and hear evidence if offered, and the final determination can only bo had after such an opportunity has been given. No one has any occasion to make a showing until an ex pa/rte finding has been made which he deems wrongful, and no ex parte finding is final until there has been such notice given of it as will enable the person assessed to know its amount and attack it if he chooses. Comp. 'L. § 986. Under the general tax law there can be no change made prejudicial to the tax payer after the roll has been made up for review, and he may therefore rest upon it if not excessive..
The powers of the city board of review are broader in some respects than those of the township assessing officer, because they can enlarge the assessment in some cases. But there is nothing in the charter indicating an intention of allowing this to be done with any less care or responsibility than that required of the original town assessors. The board is to value the property it deals with “ as provided in the general tax law of the State.” See p.-. The general tax laws do not allow any change of valuation except on a proper examination, and they allow no valuation to stand, until there has been an opportunity of investigating; it on the part of the property owner. The assessment must in the language of the law be “complained of,” which signifies at least some distinct reason to be so suggested that it may beexamined into in some responsible way. Whatever may be the presumable familiarity of these officers with the value of specified lands, it is neither presumable nor possible that they can have any such absolute and complete knowledge of the nature or condition or quantity of personal property assessable against citizens, as should preclude any examination to change their estimate, and it is contrary to the whole spirit of our laws, and not in any way compatible with the positive requirement of determining cash value, for any ex parte views to determine it finally. In the present case the change was made without anything further than the motion of a member of the board. It was made on the last day of the meeting, and in the absence of the plaintiffs below, who had no notice of any attempted change. It was made without any inquiry on oath or otherwise into the facts in the presence of the parties, and acted upon like any mere matter of business detail on such knowledge ás the board supposed they possessed.
As the change when made is final, there must be an opportunity of some kind to complain. We do not think that this opportunity was given. It cannot be expected that the entire body of tax payers can attend the sessions of this board constantly, as they would have to do in order to be sure they were not subjected to increased burdens. While no great formality is possible in providing for doing justice in such cases, some reasonable notice should certainly be given before adding to an assessment. It is presumable that the assessor’s work will not require many changes, particularly in repairing omissions. Most complaints will be of overassessments, and the persons interested in reducing these are always the moving parties, who will produce their proofs as soon as they find it is necessary. But additions to the roll when suggested must generally be urged by some one, in or out of the board, who is interested on behalf of the public, or who desires to compel other citizens to bear their share of public burdens. When such a complaint is made, if it has any reason in it, the nature of the supposed deficiency in the existing assessment must necessarily be known at once, so that the inquiry can be very speedily made when once opened. But unless the tax payer has some notice of the proposed change he cannot be prepared to make his showing, no matter how unjust the change may be. The general tax law, to the spirit of which this board must conform, requires the opportunity, and there is no other way of getting it.
¥e think the court below held correctly that the change was unauthorized. But it follows from this that the original assessment should stand, and the tax paid up to that amount was a proper charge which the plaintiffs were equitably bound to pay. They should only recover the excess, which is at this date $351. They are entitled to this sum with costs of the circuit court, but defendant is entitled to costs of this court.
Judgment must therefore be reversed with costs of this court and a new judgment rendered on the finding.
Graves and Cooley, JJ., concurred. | [
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Marston, C. J.
The main features of this case may very briefly be stated. In December, 1875, plaintiff and defendant made an exchange of certain real estate, and in the deed from Smith to Unger a clause was inserted that “this conveyance subject.to a mortgage executed by Joseph Smith and wife to Henry W. Bly for the amount of four hundred dollars and inferest, dated sometime in the month oí September, October or November, 1875, due two years from date, which said mortgage the party of the second part hereby agrees to pay.” The party of the second part, Mrs. Unger, did pay this mortgage, and the present action is brought by her to recover from her grantor, Smith, the amount so paid, in accordance with the contract under which the exchange was made, by which, she claims, Smith agreed to furnish the money to pay this mortgage. The court ruled that under the pleadings plaintiff could not recover on the Bly note which she had paid. The plaintiff then offered in evidence a note given by Smith to her in July, 1875, for $900, and secured by mortgage, the conditions of which had been fully performed.' She then gave evidence tending to show that after this $900 became due and was satisfied, and after the exchange of the lands in December, 1875, this $900 was turned out to her as security that Smith would furnish her $400 to take up the Bly mortgage as he had' agreed. This evidence was contradicted by Smith.
The court charged the jury that if they found the agreement to be that defendant was to pay the Bly mortgage, then plaintiff could not recover, as such an agreement would be in conflict with the terms of the conveyance from defendant to plaintiff; but that she might show that defendant was to pay her $400 in time to enable her to pay the Bly mortgage, and the $900 having been turned out as security for the performance of such agreement, she might recover thereon the amount paid by her to Bly. And upon this theory she recovered a verdict and judgment.
Mrs. Unger, by accepting a deed of certain premises subject to a mortgage thereon which she therein agreed to pay, became personally responsible for the debt. The mortgagee could in chancery enforce this liability and obtain a personal decree for any deficiency that might exist after a sale of the mortgaged premises, and under the authorities the vendor also might have compelled Mrs. Unger to pay off the mortgage : Crawford v. Edwards 33 Mich. 360: Miller v. Thompson 34 Mich. 10 ; Carley v. Fox 38 Mich. 388; Higman v. Stewart, id. 523; Winans v. Wilkie 41 Mich. 265.
Such being the nature and character of the obligation which Mrs. Unger assumed both to the mortgagee and her vendor, an oral agreement previously entered into with her vendor that he would furnish the money to enable her to pay this mortgage, would in my opinion be clearly inconsistent with the clause in the deed.
Under such an agreement, in no just or legal sense could it be said that Mrs. Unger paid the mortgage, and if the oral agreement is binding, then Smith, her vendor, cannot have the full force and benefit of the clause inserted in the deed. In no fair sense can the agreement for exchange be construed as one under which a certain amount of money was to be paid Mrs. Unger, as the difference in values between the property, such payment, in whole or in part, to be made in time to enable her to meet the mortgage indebtedness which she had assumed. The agreement, as testified to by the plaintiff, is one under which, as between these parties, it was the duty of Smith, the vendor, to pay the mortgage debt, by furnishing her with the money for that purpose. If such was the agreement, then plaintiff could not recover.
The judgment must be reversed and a new trial ordered, with costs.
The other Justices concurred. | [
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Cooley, J.
Plaintiffs in this court were plaintiffs in an attachment suit in the circuit court for the county of Muskegon, in which the property of defendants was seized and held. Defendant York applied to a circuit court eommistioner for a dissolution of the attachment, and its dissolution was ordered. Plaintiffs thereupon removed the proceedings to the circuit court by common law writ of cerUora/ri, and that court affirmed the commissioner’s order. Plaintiffs then brought error. Meantime the suit in which the property was attached has gone on to judgment, on personal service of process on one of the defendants.
Does error lie in sucha case? We think not. The proceeding to dissolve the attachment was collateral to the main controversy, and was in the nature of a motion heard and disposed of at chambers. Its decision by the commissioner was not a judgment, but was an interlocutory order, releasing property from the Hen of the writ, but not disturbing the regular and ordinary proceedings in the case. So the affirmance of that order was no judgment. Nothing was finally determined but the right to the lien, and the judgment actually given on the merits in the court below remains undisturbed and unaffected by this writ.
The case must be dismissed with costs.
The other Justices concurred. | [
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Marston, C. J.
The action in this casp was brought to recover upon a bond given upon the appeal of a cause from justice’s court to the circuit. The appeal was dismissed for non-payment of the proper fee, and an execution thereupon issued by the justice upon the judgment and returned unsatisfied.
The circuit court held that the plaintiff could not recover because he had not exhausted his remedy against the judg- ■ ment debtor by causing a transcript of the justice’s judgment to be taken to the circuit court, and issue and return of execution thereon.
This was erroneous. The statute provides that the plaintiff shall not be entitled to prosecute such bond until an execution on the judgment appealed from shall have been returned that sufficient goods and chattels could not be found to satisfy the same. Comp. L., § 5457. This was- complied with, and this section is too plain to be extended by construction to requiring an effort to be made to collect from real estate. Were it not for this statute an execution from justice’s court need not. even be issued before suit brought.
The case of Schermerhorn v. Conner 41 Mich. 374 is relied upon, but has no application to the present case. In that case all legal means were to be used to collect the claim; such is not the requirement of the statute in this case.
It is also claimed that because the justice did not make his return to the .circuit within ten days after the appeal was perfected, the plaintiff in this case can not recover. The plaintiff in this case is not responsible for such default of the justice. The appellant und.er the terms of his bond was to perfect and prosecute to effect his appeal. The default rests with him, and not the appellees. Upon the facts of this case, as presented, the plaintiff was entitled to recover.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Marston, C. J.
This is an application for a mandamus. On the 8th day of May at two o’clock p. m., a-paper purporting to be a declaration, was served upon the relator as commencement of suit under the statute. No declaration was filed or rule to plead entered in the office of the clerk of the circuit court until nine o’clock p. m. of the same day.
The service of a copy of a declaration as commencement of suit, before a rule to plead was entered, was clearly unauthorized. The question, however, arises whether this case does not come within the rule that courts will not inquire into fractions of a day, and we are of opinion that it does. It may sometimes happen that where the declaration has been properly hied and rule to plead entered, yet owing to variation in time as kept, by different individuals, and the short intervening tim,e between the entry of the rule and service upon the defendant, disputes may arise as to which, in point of fact, was first in order. We are of opinion, therefore, that where the defendant has not been misled by reason of non-entry of the rule to plead, he has no just cause of complaint, and that it would prove seriously embarrassing to have the question1 raised where the time between the service and entry of the rule would be so insignificant as to injure or mislead no one. Had the defendant in this case, after service upon him, made an examination in the clerk’s office, and ascertained that no rule to plead had been entered, and relied thereon, he might, should any farther steps be taken against him, then be entitled to relief. Upon such a state of facts we express no opinion.
We think the writ should be denied.
Graves and Cooley, JJ. concurred.
Campbell, J.
I think there can be no case in court until tlie declaration is filed, and that notice of a filing and rule to plead which have no existence is invalid. | [
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Campbell, J.
Hazeltine filed his bill to foreclose a mortgage for $3400 due in five years from March 1, 1878, with interest at 7 per cent, payable semi-annually. One instalment of interest having, as is claimed, remained unpaid, the bill sets forth an election to have the whole sum become due, it being averred that this was provided for in the mortgage, as well as a fee of fifty dollars, on each proceeding to foreclose. It also avers that the mortgage secured to the mortgagee a right to the rents and profits after default, and the right to have a receiver appointed without notice. It appeared that the property was occupied as Mrs. Granger’s dwelling.
The Superior Court of Grand Hapids, when the bill was filed, made an ex parte order at once on such filing, appointing a receiver to take possession of the premises, and dispose of the rents as therein directed. Defendant at once made a-motion to set aside this order, which was refused, and she appeals.
¥e think the court had no power to grant the order, which is unprecedented even under the old practice, both for requiring no security and for having no basis of facts to. authorize it.
The courts in equity have no power to appoint receivers-except “when such appointment is allowed by law.” Comp. L., § 5070. There is no statute which authorizes the court to carry out ex parte any private agreement of parties outside of the usual course, or which would render its action valid in any case if it deprived a person of property or its control without such a hearing as is required to determine the right. Under the old practice existing at a time when the possessory right was deemed covered by a mortgage, a court of equity would not interfere to grant a receiver unless two conditions coincided: first, that the premises were scanty security; and second, that the mortgagor was insolvent. Brown v. Chase Walk. Ch. 43.
Even this was regarded as contrary to public policy by our Legislature, and in 1843 the old law was changed so as to secure the mortgagor in his possession until a forclosure had become absolute. The effect of this, as we have several times decided, was to prevent the mortgagee from obtaining under his mortgage any interest beyond that of a security to be enforced only by sale on foreclosure, and to debar him "from any right of possession. Hogsett v. Ellis 17 Mich. 363; Baker v. Pierson 5 Mich. 456 ; Caruthers v. Humphrey 12 Mich. 270; Crippen v. Morrison 13 Mich. 23; Ladue v. D. & M. R. R. Co. 13 Mich. 380 ; Van, Husan v. Kanouse 13 Mich. 303; Newton v. Sly 15 Mich. 391; Humphrey v. Hurd 29 Mich. 44; Newton v. McKay 30 Mich. 380; Wagar v. Stone 36 Mich. 364.
The statute does not say that no ejectment shall lie unless there is an agreement to that effect, but that it shall not lie at all. Every mortgage made in common law form contains words whereby, if applied as they read, possession would belong to the mortgagee and his title would become absolute by default. The whole aim of ■ equity was to arrest this forfeiture and not to allow the language of a mortgage to have any force against the equity of redemption. The statute is a further step in the same direction ’for the protection of mortgagors against agreements which, as literally drawn and as theretofore expounded, were deemed dangerous, and against public policy. The language of • this mortgage expressly granting rents and profits on default is no stronger than the previous words of grant, and is really narrowed. It was no doubt intended to go further and to evade the statute. If it had contained an agreement that ejectment should lie, it could not very well be enforced against the clause of the statute prohibiting it. It can-have no greater force in enlarging the jurisdiction of equity to appoint receivers, which we held, in Wagar v. Stone, had been abolished. Any such attempt to create a forfeiture is contrary to equity and equity will not enforce it. The same principle which makes all original agreements void which destroy the equity of redemption in advance, must cover a partial as well as complete destruction. In Batty v. Snook 5 Mich. 231, it was held that where an agreement was in fact a mortgage, an executory agreement to give up the equity of redemption on default was void, and would violate the doctrine which had annulled the common law forfeiture. If mortgagees can evade the law by requiring a forfeiture of something a little less than the entire freehold, but nevertheless covering its usufruct, the beneficial effect of the modern legislation and* to a considerable extent of the previous ■ equitable doctrine will be wiped out.
■, We think the mortgage cannot be so enforced in equity as to deprive defendant of possession. As this is a mortgage of nothing but real estate, it is free from any questions which may possibly be mooted concerning other securities.
The order appointing a receiver must be reversed with costs of this court and ten dollars costs of motion in the - Superior Court. If the receiver has got into possession it must be restored and all rents repaid without any deduction.
The other Justices concurred. | [
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Marston, C. J.
The return made by the constable to the writ of attachment did not show proper service of the writ, and gave the justice no jurisdiction to proceed and render judgment in the cause. Nicolls v. Lawrence 30 Mich. 396; Town v. Tabor 34 Mich. 263; Adams v. Abram 38 Mich. 302-4.
On the return day the defendant appeared and moved to dismiss the writ because no proper service was shown by the return. This was not such an appearance as would give the justice jurisdiction. A justice of the peace may acquire jurisdiction over the person either on a return showing proper service of the writ, or on the voluntary appearance of the defendant. But where the defendant appears and objects to the jurisdiction because no proper service of the writ appeal’s to have been made, we do not see how this can be considered as a submission to the jurisdiction. It has been assumed that the defendant must declare that he appears specially for tbe purpose of making his motion or objection, and for no other purpose, or i¿hat jurisdiction will lie conferred because of his general appearance. No doubt a general appearance would confer jurisdiction, but the-appearance and objection then made should be considered together; and so considered the objection or motion made limits and explains the appearance, and clearly indicates an intention not to confer a jurisdiction where one is wanting. This, to my mind, is the more reasonable and sensible doctrine, does away with needless technicality, and certainly injures no one, while it promotes justice and prevents a grasping at shadows.
The levy having been made upon property of a species exempt from execution to a specified value, it was the duty of the officer to have the property appraised and give the defendant an opportunity to make his selection under the statute. Comp. L., §§ 6102-3. These provisions are equally applicable to justice court as to circuit attachments. The fact that the defendant may, at the time of the levy, have said the property seized belonged to his brother, would not be conclusive and would' not excuse the officer. If the officer believed such statement, then he had no right whatever to seize the property at all, as his writ did not command him to take any but the property of the defendant therein; and if he seized it as his property under the writ, then it was his duty to give the defendant an opportunity to make his selection under the statute.
The defendant in this case was present at the time of such seizure and directed the same, but we do not understand that he was in any way the cause of the errors thereafter committed by the officer. If the officer did not give the defendant in the attachment suit an opportunity to make his selection, or did not properly serve the writ on the defendant, for such omissions he would be responsible, but the plaintiff in the attachment proceedings would not thereby become liable as a trespasser. At the time the levy was made under the attaching plaintiff’s instructions, the writ was a valid one and protected both himself and the officer in such seizure. And the acts of the officer afterwards in failing to perform his duty would not render the plaintiff a trespasser ab initio.
Under this view the other questions raised are not material, and will not be passed upon.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell, J.
Wilcox, under title derived from a chattel mortgage executed to him by the Sextus N. Wilcox Lumbering Company, replevied certain goods from the defendant who was in possession under an agreement with the company whereby he was entitled to half the profits of carrying on the business. There was a dispute concerning the fact of partnership. The court charged the jury that defendant would have a lien on the property even though there was no partnership, and he recovered judgment for the amount of it.
There is no doubt if he was a partner he had a lien for his claim. On the testimony, which showed the arrangement was made under an advertisement for a partner, the jury might have found that relation. But if he was not a partner he was in the position of any clerk or agent whose wages are measured by profits ;and no authority has been cited showing that a lien exists in such cases. The case was put to the jury too strongly.
Judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Cooley, J.
Jennings sued Sheldon upon a warranty of title of certain stone which Sheldon had sold to him. To show a breach of the warranty and his damages, he proved that one Dean had afterwards sued him for the value of the stone; that he had given Sheldon the defense of the suit, but that it had resulted in a judgment in favor of Dean for the value of the stone, which Jennings had paid. The circuit judge held that the recovery of judgment by Dean was no evidence as against Sheldon of a failure of title, because the suit was in assumpsit, and necessarily counted on an express or ' implied promise by Jennings to pay Dean for the stone; and he therefore directed a verdict for defendant.
It is a fair inference from the recitals in the bill of exceptions that plaintiff gave other evidence of the failure of title besides the Dean judgment; but this is not important, since it was clearly shown that the Dean suit was brought to recover for the value of the stone, and that Sheldon assumed the defense of it. It was immaterial that the suit was in assumpsit. It may be that the circumstances of the taking of the stone were such that assumpsit could not have been supported if objection had been made (Watson v. Stever 25 Mich. 386); but the parties were not bound to take that objection, and the title could as well be tried in an action of assumpsit, as in one of trespass or trover. The question was not of the form of action, but of what was in issue in the case; and this must commonly be shown by other evidence than the pleadings. Besides, the Dean suit was proved only in order to fix conclusively the breach of warranty and the ' ainonnt of damages; but these might be made out on other evidence; plaintiff was not compelled to have litigation with Dean, but as soon as he was satisfied the stone belonged to him he might surrender it and sue on the warranty at once.
It is objected that the declaration does not show that the warranty was a part of the consideration of the purchase; but though informal we think the pleading sufficient. It is also said plaintiff is not entitled to recover the amount of the costs of the Dean suit, because he gave defendant no written notice to defend; but if defendant took charge of the defense in that suit, the notice was immaterial.
The judgment must be reversed with costs and a new trial ordered.
The qther Justices concurred. | [
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Campbell, J.
Fitch sued defendant for a private nuisance in unlawfully maintaining a dam, and overflowing his lands.
It appears that on the 31st of July, 1873, defendant, having been organized for hydraulic purposes, and finding it necessary to build a dam in the St. Joseph river to get the requisite facilities, entered into a written agreement with a number of riparian owners, including Fitch, for the purpose of “ obtaining the right to perpetually flow such lands as may be necessary to the erection and maintenance of their waterpower as aforesaid.” The agreement proceeded as follows: It was first provided that the land owners would agree to allow the defendants to erect their dam and raise the water until August 1,1874, without objection, and that at that time each should convey the necessary right of flowage to maintain the dam and power, provided defendants should pay such damages as had then accrued or might accrue, in the manner specified, which was — First, that defendants should within a reasonable time after the actual amount of damage could be ascertained, and before that day, pay such sum as should be agreed upon; second, if not agreeing, that they should arbitrate in accordance with the statute, the award to fix the damages and provide for a conveyance; or third, that the lands might be condemned.
Articles of arbitration were thereafter entered into, but did not fix any court in which judgment should be rendered. An award was made of one hundred dollars, but judgment of confirmation was vacated on the application of Fitch. The award was signed by one of the two arbitrators named in the agreement and by the third who had been chosen by the other two, and who was named in the agreement of submission.
Fitch afterwards notified defendants to abate their dam, and on failure thereof brought suit. The court held he could not recover, basing the ruling on the arbitration and refusal to accept the tender of the amount awarded.
¥e think there is no doubt this is such an arbitration as might have been covered by the statute if it had been made in due form. The statute only excludes freehold estates. Comp. L. § 6890. It is also clear that if the submission .had mentioned any court, it would have been perfectly regular. The objection that the award does not require a conveyance is of no force, because the submission does not. The signature of the two arbitratoi’S instead of three would not make it void unless it was made to appear, on a motion to vacate, that they had signed in disregard of the conditions regulating execution by a majority. No presumption exists under the statute against it, and the parties seem to have acted in the first instance on the supposition that they were conforming to the statute.
We think that the parties, who could make any form of arbitration they pleased outside of the statute, did by the express terms of their submission agree to follow the statute except as they varied from it. And we think this award was therefore binding.
There is nothing in the objection that no authority is shown in the president and secretary of defendants to agree on arbitration. They are the officers presumably empowered to make ordinary agreements, and such-a company cannot exist without power somewhere to agree on rights of flowage. A right to arbitrate any difference on this head is incidental.
But the nature of this species of litigation as liable to claims for continuing nuisances, makes it proper to refer to the agreement more directly. The works which such companies erect must necessarily be designed for permanence, and when they are given a right of flowage, it resembles the rights procured by other corporations* such as railways and canals, of subjecting land to permanent conditions in the use of permanent structures. The written agreement already quoted provides for a perpetual use, and contains no clause of forfeiture on default. It contains provisions whereby the land owners can obtain damages under provisions capable of legal and equitable enforcement. The damages are payable once for all. The agreement is an absolute sale and right of immediate and perpetual possession, in consideration of a future payment. It is in no sense a license of a revocable character. It is in its necessary meaning a grant as irrevocable as any other grant or sale on time and for credit. The interest once granted is no longer permissive but absolute. It would be extremely absurd to regard a railroad company as a trespasser because it did not pay the land owner what it had promised to -pay -when he granted leave to locate it. The effect of such a grant of right is to encourage and procure the erection of large and costly structures which cannot be made subject to destruction at the whim of any one who thinks such a grant is no more than a perpetually revocable license. The law is not very well provided with common-law terms to reach cases like the present, but the idea of including such rights within the rules applicable to temporary licenses for temporary purposes is too extravagant to be entertained. The doctrines laid down in Harlow v. Marquette, Houghton c& Ontonagon R. R. Co. 41 Mich. 336, apply to this ease and dispose of it.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
This bill was filed in January, 1875, and the defendants joined in a general demurrer which was allowed as to the defendant Weeks, but overruled as to the defendant Newland, and he appealed. A reference to the material facts is necessary.
The bill states that complainant’s son Ira Winegar in September, 1869, owed him $400 and then gave him his note therefor payable with interest at ten per cent, in 14 months after date; that in February, 1870, the said Ira made his will and subject to the payment of debts bequeathed to each of his two children $250 and gave the residue of his property, including his farm, which he supposed to be worth $4000, to his wife Ruth E. E. Winegar, and appointed her to be executrix; that he died the same day, and the will was soon proved and allowed, and its execution committed to the widow pursuant to its provisions; that subsequently and in June, 1871, the probate court appointed commissioners to decide upon any claims against the estate, and complainant presented his demand before them for allowance, and they allowed the same at $558.57; that frequent application was made to the executrix to pay this allowance, but she neglected and refused, and that the same has iemained due and wholly unpaid; that on the 30th of December, 1871, she deeded the farm mentioned in the will, and which was then worth $3000, to one Julius S. Newland for the nominal consideration of $400, and on the next day intermarried with him; that the estate was unsettled, and both had knowledge of the ■circumstances and of the existence of complainant’s claim and of his right to payment out of the property of the estate; that in January, 1872, the said Julius S. Newland and the said Ruth, then being his wife, joined in a deed of said farm for the nominal consideration of $1500 to his father, the ■defendant Albert M. Newland, who, according to the belief of complainant, was aware of the circumstances and took conveyance subject to the debt in question; that the said Ruth having ceased to be executrix by reason of her marriage, the court of probate in May, 1S73, appointed the defendant Weeks to be administrator of the estate with the will annexed, and he immediately assumed the duties, and has ■continued hitherto as such representative; that as complain■ant is informed, said administrator has, however, “ done nothing by way of closing up the affairs of said estate, and though repeatedly requested to go on, and out of the estate left by the said Ira, deceased, make and realize the money necessary to and pay complainant the amount of said indebtedness, but thus far has neglected and refused so to do, alleging that no property belonging to said estate has come into his possession, and that he will not take upon himself -the risks of litigation for the property;” that there is now no other property belonging to said estate out of which can be made any part of said claim, and complainant has requested said administrator to prosecute the proper proceedings at law to raise the necessary sum out of said farm to satisfy it, but he has refused to move in the matter; that, as complainant is informed, the said Ruth removed to California after her marriage and is now insolvent; that the bill is filed on behalf of all creditors of the estate, but so far as complainant has been able to Ascertain nothing remains unpaid ■except this demand of complainant and the two legacies.
It is not perceived that any ground is set forth here for ■equitable cognizance. Complainant’s remedy, if not lost by neglect to take steps in season, is in the court of probate. And if it has become impracticable to prosecute redress in fhat forum by reason of having failed to move seasonably, it neither widens the scope of equity nor gives him any title to proceed in chancery.
According to the case the estate left by the son was solvent and the farm was subject to debts. The claim of complainant is said to have been duly allowed and to remain wholly unpaid. Supposing the state of things to be as represented, the farm was liable by due course of administration in the probate court, and the deeds mentioned did not prevent it. Comp. L. §§ 4322, 4350. Whatever their force they were certainly subject to the prescribed administrative remedies for subjecting real property to the claims of creditors, and the statute enabled complainant to compel the proper action in the court of probate. §§ 4454, 4457, 4460, 4461, 4462, 5200.
The creditor is not confined even to a resort to the assets. The law is express that after the arrival of the time of payment the executor or administrator shall be personally liable, or upon his bond. § 4461, supra. If by neglect or choice the complainant allowed his proper and lawful opportunity to run by, he can ask neither law nor equity to help him. § 4463. In all classes of remedial proceedings there is a fixed limit, and in respect to estate cases it is considered wise to make it short. There is no pretense of any homestead question to interfere with the ordinary comise of administration, and the record is barren of facts to indicate that complainant was not able to obtain adequate redress in the tribunal set up for the disposal of such matters. It is hence xxnnecessary to refer to any right he might have had under other circumstances to any proceeding here to compel specific steps by the judge of probate. Neither is it needfxxl to consider whether the administrator with the will annexed might or might not, before or after license, maintain a bill against these conveyances or whether a purchaser at administrator’s sale might do so. These points, if arguable, are outside the case. Accoi’ding to the representations of the bill the matter of settlement of the estate is still pending and unfinished in the court of probate, and the facts fail to show any ground for controversy in equity between complainant as a general creditor of the estate, and the defendant Newland who holds a title to the farm derived from the devisee. So far as now appears the complainant could gain a position from which to attack that title whatever may be its force, in no other way than by some proceeding in the court of. probate looking to its total or partial subjection to his debt. The court of chancery has no power to intervene and order the appropriation of the farm or any part of it to that claim.
What is said about the deeds having been made with intent to defraud complainant, constitutes no case. Whatever intent may have been conceived, no acts or transactions appear capable of being an equitable cause of action for complainant whether the intent attached to them or not.
I think the demurrer should be sustained on the part of the appellant Newland, and that he should recover the costs of both courts, the bill being dismissed as against him but without prejudice.
The other Justices concurred. | [
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Bbooke, J.
(after stating the facts). The only question here involved is the character of the estate which passed to Pauline Ams under the will of Frederick Ams.
It is urged by the administrator of her estate, and the circuit judge held, that the will of Frederick Ams created an estate in fee simple, absolute in Pauline Ams, and. that the latter part of the clause, which created that estate, in which the testator attempted to make certain specific bequests to his grandchildren, was void for repugnancy.
In reaching this conclusion, the learned circuit judge relied upon the following cases: Jones v. Jones, 25 Mich. 401; Dills v. La Tour, 136 Mich. 243 (98 N. W. 1004); Moran v. Moran, 143 Mich. 322 (106 N. W. 206, 5 L. R. A. [N. S.] 323, 114 Am. St. Rep. 648); and Killefer v. Bassett, 146 Mich. 1 (109 N. W. 21). An examination of these cases will show that in each case the testator, as in the case at bar, used words sufficient in law to create an estate in fee in the first taker, and in each, case the testator then attempted to dispose of such portion of the estate, if any, as might remain at the death of the original devisee and legatee. There is no limitation in the wills considered in any of these cases upon the right of the first taker to dispose of the entire estate during her lifetime, but an attempt is made in each instance to limit an uncertain remainder upon an estate in fee. The case at bar is clearly distinguishable from those relied upon. Here the testator created an estate in fee in his wife, and in the same paragraph charged that estate with the payment of certain specific legacies, upon the happening of a certain future event.
There can be no doubt that language, which, standing alone, would create an estate of inheritance, may be so modified by subsequent language as to limit or qualify the estate originally apparently created. Forbes v. Darling, 94 Mich. 621 (54 N. W. 385); In re Owen’s Estate, 138 Mich. 293 (101 N. W. 525).
In the case of Robinson v. Finch, 116 Mich. 180 (74 N. W. 472), this court quoted with approval the language used in Smith v. Bell, 6 Pet. (U. S.) 68. It is peculiarly pertinent when applied to the words of the will here considered, and is as follows:
“ If the first bequest is to take effect according to the obvious import of the words taken alone, the last is expunged from the will. The operation of the whole clause will be precisely the same as if the last member of the sentence were stricken out; yet both clauses are equally the words of the testator, are equally binding, and equally claim the attention of those who may construe the will. We are no more at liberty to disregard the last member of the sentence than the first. No rule is better settled than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole. Either the last member of the sentence must be totally rejected, or it must influence the construction of the first so as to restrain the natural meaning of its words; either the bequest to the son must be stricken out, or it must limit the bequest to the wife, and confine it to her life. The limitation in remainder shows that in the opinion of the testator, the previous words had given only an estate for life. This was the sense in which he used them.”
See, also, Chase v. Ladd, 153 Mass. 126 (26 N. E. 429, 25 Am. St. Rep. 614); Kent v. Morrison, 153 Mass. 137 (26 N. E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616).
In the case of Cousino v. Cousino, 86 Mich. 323 (48 N. W. 1084), where the testator, after providing for the payment of his debts, bequeathed the residue of his estate, real and personal, to his wife, and “after her death, or sooner, if she chooses to, to be divided among my childr'en or their heirs, share and share alike,” this court held that the widow took only a life estate, upon the ground that to construe the will as creating an estate in fee would render the clause quoted meaningless.
There is no question that as to $8,000 of the estate left by Frederick Ams, it was his intention to give to his wife, Pauline, only the use thereof during her lifetime. It transpired at his death that his entire estate was of less value than the legacies with which he had charged it. This fact, however, can have no bearing upon the character of the estate created in the widow. It would result simply in a reduction of the legacies pro rata.
Construing the will as creating a life estate only as to the $8,000, there is no repugnancy in the clause under consideration, but if, as urged by the appellee, the latter part of the clause is repugnant to the earlier, the latter, being clear, definite, and specific, must control. Barnes v. Marshall, 102 Mich. 248 (60 N. W. 468); Foster v. Stevens, 146 Mich. 131 (109 N. W. 265), and cases there cited; Gilchrist v. Corliss, 155 Mich. 126 (118 N. W. 938, 130 Am. St. Rep. 568); Hamlin v. Express Co., 107 Ill. 443; Schouler on Wills (3d Ed.), § 478. Legacies become a charge upon real estate, either by express direction or by necessary implication. If the language used by the testator indicates that he intended the legacies to be paid, although he knew his personal property to be inadequate for that purpose, they will not abate. Or if the real estate and personalty are blended in one mass, and legacies then bequeathed, the legacies become a charge upon the real estate, if the personalty be insufficient. Gardner on Wills, p. 584; In re Owen’s Estate, supra.
We are of opinion that the testator clearly intended to charge his real estate, as well as his personalty, with the payment of the legacies, and that such construction' arises from necessary implication. The testator’s real estate, which at the time of his death was valued at only $5,000, was sold by his widow 17 years later for $6,200. His personal property amounted to only $1,400. It is obvious that, to provide for the payment of $8,000 of legacies, the testator must have intended to charge them upon the real estate, as well as the personal estate, and the blending of his entire estate in one mass in the earlier part of the clause is persuasive evidence of that intent.
It is unnecessary to cite authorities to the effect that the primary rule of construction is to discover the intent of the testator, and, if possible, give effect to that intent. As before pointed out, the testator clearly intended that his estate, to the amount of $8,000, should, upon the death of his wife, pass to his own grandchildren rather than to her heirs or devisees.
ThB judgment is reversed, and a decree will be entered in this court upon the footings of this opinion, with costs of both courts.
Moore, McAlvay, Blair, and Stone, JJ., concurred. | [
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McAlvay, J.
From a decree granted to complainant against defendant decreeing a separation for life and ordering separate maintenance by him, defendant has appealed to this court. It appears from defendant’s answer that complainant first filed a bill of complaint against him in the Kent circuit court, in chancery, praying for a divorce from the bonds of matrimony, on March 14,1907, which bill defendant answered, and an issue was joined. During the pendency of that suit, and before any hearing, negotiations were hadNetween the parties relative to settling the property interests. No satisfactory settlement could be reached, and complainant then voluntarily dismissed her bill of complaint, and on or about January 11, 1908, filed the bill of complaint in this suit in the same court.
The bills and answers in both suits are printed in the record, and may be said to be identical, except as to the relief prayed for in this bill of complaint, and a statement in this answer showing the former suit, and alleging that it was voluntarily dismissed after a failure to induce him to transfer nearly all of his property to her, free from incumbrances.
Complainant, on the hearing below, insisted and still contends in this court that the case before us was not a suit for divorce, but a proceeding under section 8686, 3 Comp. Laws, “to provide wives with property and maintenance, etc.,” being Act No. 243, Pub. Acts 1889. The question was properly disposed of by the trial court against the contention of complainant, as follows:
“ The bill of complaint in this case is in form and substantially in every particular a bill for absolute divorce, except the prayer which is for an allowance for separate maintenance, coupled with a prayer for general relief.”
Nothing in this bill of complaint indicates that the pleader at the time it was drawn had in contemplation the act of 1889. In form and substance it conforms with all the statutory requirements for a bill for divorce, and not with the petition required by the act of 1889. The prayer for separate maintenance is not different from such a prayer in ordinary cases of bills filed for separation, which, in fact, is a prayer for divorce from bed and board. In the instant case the decree is for separate maintenance for life. It is a decree of separation formerly called “ a mensa et thoro.” Such a decree is recognized as a decree of divorce. 9 Am. & Eng. Enc. Law (2d Ed.), p. 851.
The parties to this suit lived happily together for about 12 years. She charges that he then began to treat her with extreme cruelty, went away from her, and was unfaithful. Defendant denies these charges, and claims that the change in their relations was in fact caused by a drug habit which complainant acquired by using a preparation of cocaine and morphine, and continued without his knowledge for a long time, and which he with her consent took steps to cure; but during the time of her treatment it was necessary to watch her closely and care for her, which he claims embittered her against him. The proofs tend to show that from the use of these drugs she had become mentally and physically weakened. Upon this claim of defendant there is a disagreement between these parties. There is, however, no dispute but that up to the time that the relations between them became strained, defendant furnished support to his family to the extent of his ability and earning capacity. He acquired a homestead and some other property, against which there are incumbrances, which must be taken care of in order to save anything. It appears that the equity in all the property amounts to about $1,000. It would be of no benefit to present and discuss the evidence in the case. It has all been examined and considered. We are not inclined to disturb the conclusion of the court in finding that the charge of cruelty against defendant was sustained by the proofs. There is also abundant proof to show that these parties have become so estranged that it will be impossible for them to resume their relations as husband and wife. Both of them testify that such a thing is impossible,
Two questions remain to be considered, namely:
(1) Whether the court, in its discretion, should grant a decree from the bonds of matrimony; and
(2) The allowance which should be granted to complainant.
Complainant has not appealed from the decree which was granted upon the theory that the bill of complaint was one for a divorce, and not a proceeding under the statute of 1889, of which holding we have indicated our approval. Complainant, however, does contend that, under the statute, this court cannot grant a decree from the bonds of matrimony.
It is insisted that the amendment of 1907 (Act No. 324, Pub. Acts 1907) confers such power only upon the trial court, by the words:
“Unless the court hearing the evidence shall deem it for the best interests of the parties to grant a divorce from the bonds of matrimony, and in that event the court may grant such divorce.”
All chancery causes are heard de novo in this court, upon the same evidence presented in the court below: This court, then, is “the court hearing the evidence ” in cases of this kind, with jurisdiction to exercise its judicial discretion upon the question under discussion. The construction claimed would be one of implication, and contrary to the well-settled policy of this State, as to the authority vested in this court upon- chancery appeals.
This section, 8623, 3 Comp. Laws, has been amended twice. Originally it provided that a divorce from the bonds of matrimony might be decreed for either of the causes mentioned in the preceding section (for extreme cruelty, utter desertion for two years, and for wanton and cruel neglect and refusal to support, by the husband, when of sufficient ability to do so), “whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do). The amendment of 1905 (Act No. 135, Pub. Acts 1905), added:
“ But no divorce from the bonds of matrimony for either of the causes mentioned in the preceding section shall be entered in any case where the same is not asked for by the complainant in the bill of complaint filed therein, or by the defendant on a cross-bill.”
The addition to this by the amendment of 1907 is already quoted above. In relying upon this section in support of the decree granted, complainant has abandoned the independent charge of the unfaithfulness of defendant. Such cause for divorce is not included in the preceding section, but only those above enumerated.
We consider that this record presents a case for the exercise of the discretion conferred by the statute to grant complainant a divorce from the bonds of matrimony, and deem it for the best interests of the parties so to do “on grounds of public policy, to prevent the mischiefs arising from turning out into the world in enforced celibacy persons who are neither married nor unmarried.” Burlage v. Burlage, 65 Mich., at page 627 (32 N. W. 867). Also upon the ground, that by so doing a more satisfactory and certain provision may be made for complainant, in making an allowance to her of her proportionate share of the property of defendant. We will therefore so change the decree as to make the divorce an absolute one from the bonds of matrimony.
It appears that this property is incumbered; that interest, taxes, and repairs must be met by defendant. The equity appears to be worth not more than $800 to $1,000. Complainant will be allowed the sum of $700 as permanent alimony, being $100 less than defendant’s brief indicates as satisfactory, to be paid in monthly intallments of not less than $50 each, provided that she will release to defendant, from time to time, all of her claim, title, and interest in and to each parcel of the real estate, if he has opportunity to sell and dispose of the same, whenever he so requests, and will pay to her the proportionate part which the equity in such parcel bears to the unpaid amount of the alimony at that time, when considered with the value of the entire equity in all the parcels then remaining unsold. She will also be awarded all of the household furniture in her possession.
The decree of the circuit court will be reversed and set aside, with costs of both courts to complainant, and a decree will be entered in this court in accordance with this opinion.
Ostrander, Hooker, Moore, and Brooke, JJ., concurred. | [
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McAlvay, J.
Plaintiff recovered a judgment against defendant for the loss of certain personal property contained in a rented barn caused by fire, which was claimed to have been brought about by defendant’s negligence in carelessly propelling a steam traction engine along the highway in close proximity to this barn, during a high wind blowing towards the barn.
The negligence relied on consisted in driving the engine along the highway under the conditions mentioned without having it equipped with a spark arrester, or a proper spark arrester, and that the engine was broken in certain parts which increased the draft. No question is raised as to the sufficiency of the declaration.
The errors relied upon by appellant who, upon writ of error, brings the case here for review, may be grouped together and stated as:
(а) Those committed by the court relative to evidence.
(б) In refusing to give certain requests to charge.
(c) In charging the jury.
The fire which caused the damage claimed was discovered immediately after the passage of defendant’s engine by the barn; it having caught on the south side next to the highway, near which it was located, in the stable litter which had been thrown out, and which was very dry. The defendant and his helper saw the fire before they had driven the engine more than 20 rods from the barn.
Testimony was admitted relative to subsequent fires claimed to have been set that morning by this engine after it passed the barn above mentioned. Defendant was at the time taking the engine, with tank attached, from his farm to that of a Mr. Brady, who met the engine on the road after the fire, and rode home on it. The man in charge of the engine and Mr. Brady both testified that while on the way a fire was set to a post in the fence along the road. Such testimony was admitted over defendant’s objection and exception; defendant claiming that subsequent fires must be shown to have been set under similar conditions as existed at the time of the first fire. The difference in conditions claimed was that at the time this fire in the fence was set, dry wood and broken rails were used as fuel and the dampers were open, and when the engine passed the barn green wood was used and dampers were closed. We think this testimony was admissible. The same engine, immediately following the first fire, on the same trip, under the same weather conditions, set another fire. The fuel and the drafts were not the same, but the evidence of the escape of sparks was material as bearing upon the fact as to whether there was any spark arrester on the stack, or one that was suitable.
The witness Russell was allowed to testify concerning another fire set by this engine on the following day, when it was moved from Brady’s to another farm, under similar weather conditions. The fuel was the same as used when the first fire occurred after the barn burned. Another witness testified to this last fire, and as to putting out fire as he went back along the road over which the engine had just traveled after leaving Brady’s. The witness who had put some screening over the stack at Brady’s testified that at that time there was no spark arrester in it, and that he took the screen off after leaving that farm. “While it does appear that dry pine and old rails will give off more sparks, and that the opening of dampers gives greater draught, these are matters of common knowledge, and show a greater facility for setting fires in a windy, dry time. The testimony was, however, admissible, as was the testimony relative to the first fire subsequent to the burning of the barn, as tending to show whether there was any spark arrester, or a suitable one, on this engine. The record shows testimony giving a complete history of this engine while it was on the highway, from the time it passed the barn which was burned, until it arrived at the Cobine farm beyond Brady’s on the afternoon of the next day, which testimony tended to show that the engine was, during all that time, practically in the same condition as when the particular fire which destroyed plaintiff’s property occurred. Hoyt v. Jeffers, 30 Mich. 181. Our conclusion upon the materiality of this class of testimony disposes of other errors claimed to have been committed by the court in refusing to strike out all such testimony.
Appellant contends that the court erred in admitting testimony as to what was claimed to have been repairs made to this engine by defendant subsequent to the fire, to show, negligence at the time of or previous to the fire, and in refusing to strike it out. The record shows that this testimony was not offered by plaintiff, or received by the court for the purpose claimed. This question first arose when witness Brady was testifying. Soon after the barn burned the engine was met by Brady on the road to his farm, and he was asked what was done about searching for a spark arrester. This was objected to on the ground that proof of subsequent repairs is inadmissible to show negligence preceding it. The court said:
“ I think it may be answered on the general question of whether there was a spark arrester.”
Witness then testified:
“ The engineer asked Hover about a spark catcher and he said there was one in a barrel on the water tank, which he went and pulled out, and threw alongside the fence near my toolhouse.” . *
He later said:
“ When I came .out with the screen Mr. Hover and Mr. Cook drove up, and Mr. Russell asked Mr. Hover for a screen; I told him I wouldn’t let them in there, unless there was a screen on. There was a screen in the barrel, and he pulled it out and says: ‘Your screen is finer than mine,’ and threw his alongside the fence.”
Defendant moved'to strike this out, but was refused; the court holding it was “ competent as to whether there was a screen in the engine at that time,” and, in the charge to the jury, confined the testimony to that question. The witness Russell was allowed, subject to the same objection, to testify relative to what occurred at Brady’s, saying that defendant brought with him a cone spark arrester which witness put in the top of the smokestack, and in putting it in he was not required to take another one out, and did not see any other there, and that on the way from Brady’s to Cobine’s there was no spark arrester on. All of this testimony on the part of plaintiff tended to show, not subsequent repairs, but that while on the highway defendant’s engine traveled without a spark arrester. This testimony was also admissible for the purpose for which it was received. Of the requests presented by defendant which were refused, the substance of those which were proper is included in the general charge of the court.
During the trial defendant offered testimony to show that plaintiff was in the habit of smoking in and about this barn, and presented a request to charge which the court gave, in substance, with a modification added in the last two lines as follows:
“Testimony as to Ainsworth’s smoking has been received, and is entitled to your consideration as to the probability of the origin of the fire. If you find it more probable that the fire originated in that way than by the engine, plaintiff cannot recover; but you must find as a matter of fact the inference that the fire originated that way.”
The contention is that by this charge the court instructed the jury that the defendant had the burden of proof on this issue.
The charge of the court in no other respect is questioned by defendant. The court, as to the burden of proof in the case being upon plaintiff, and what plaintiff must prove in order to recover, clearly and correctly instructed the jury. In the record no suggestion is made of the probability of the fire having originated from any cause other than from the engine or plaintiff smoking about the barn, and in calling the attention to the claimed smoking of plaintiff, the jury was instructed that the inference that the fire probably originated in that way must be found as a matter of fact. By this language no reference was intended as to the burden of the proof. Our construction of this portion of the charge is that the inference could only be drawn from established facts in the case. There was a sharp dispute as to whether plaintiff ever smoked in the barn, and no evidence whatever that he had done so that morning. This charge was given with reference to this testimony. The modification of the request as given by the court was not erroneous. Other questions need not be discussed.
The judgment is affirmed.
Ostrander, Hooker, Moore, and Brooke, JJ., concurred. | [
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Moore, J.
This litigation grows out of a situation testified to by Mr. Kelley, one of the plaintiffs, as follows:
“ The other plaintiff in the case is Mr. Shepard. We had some business relations with defendant company in 1908. We heard that they were buying wood along the line of the D. & C. R. R. I wrote to them, and in about two weeks from the time I wrote their man came to rne. His name was Maddock. He came on and explained what he was there for. I told him we had 1,000 cords or better to be cut yet, a mile and half east of town, about-60 rods from track, and good banking ground there. I asked him price. He said $2.10. After he had got the location of timber, nearness to track, and there was good banking ground, I asked him specifications. He said they wanted their wood 50 inches long, as near as they could get it, and round wood, nothing less than 2 inches and nothing larger than 7 inches, larger should be split, piled in the woods 4 feet, 4 inches high, and that he would come and scale it as often as we had 100 cords, and would pay us a dollar ten a cord in the woods. When it was piled on the track, it was to be piled eight feet, eight inches high. He said: ‘We will scale it, and give you a dollar a cord then.’ ‘Wéll,’ I said, ‘I think we will cut it on those terms. I will talk it over with Mr. Shepard, and, if we conclude to cut it, we will notify you, and we will cut it, and you can come and scale it.’ So we did notify them, and they came all right and scaled it in the woods. We got our pay by a memorandum wood check, printed across bottom, ‘Payable at East Jordan Bank.’ I think the defendant’s name was on the order. When the wood was ready I notified Mr. Maddock, the scaler. I did not notify the East Jordan Chemical Company direct at that time. The East Jordan Chemical Company was paying me. * * * The last payment that they made to us was on the 7th of September, for some wood that was at the track after the fires. We hauled some wood out after that. It was scaled, but I don’t know when. I got notice of the scale made in October. It was 147f cords. Mr. Shepard got the notice, and made a kick on it, and they came back there and found Mr. Adams, and he told them where there was more wood. They gave us the proper scale, which was 160f cords. They have not paid us for that. The last scale they paid us for, September 7th, 79-J- cords, was scaled after the fire. They paid us for that. * * ' *
“ Witness: The $36 in the bill of particulars against the defendant company was for fighting fire in the woods to protect the wood that had been scaled in the woods. I sent them a statement charging them with the 160f cords at $1 per cord, and in that statement was $36 for fighting fire, $18 of which was due Mr. Shepard for himself, men, and teams for fighting fire, making $36 in all. * * *
We have not been paid for that 160f cords. We have not been paid the $36 for fighting fire.”
On the cross-examination he testified among ‘other things:
“The contract in the first instance was made at my office. No one present but Mr. Maddock and myself. The agreement was that they would scale in the woods and pay us $1.10 per cord. We did not agree to deliver the wood at railroad for $2.10 a cord.
“Q. What prices did he tell you he would pay for that wood right there in your office ?
“A. When he first came, I .asked the price of wood, and he said $2.10 a cord, that was supposed to be delivered at the railroad track. No, sir; we did not agree to deliver the wood. We made no subsequent contract with Mr. Maddock in regard to this wood. The one we made at my office is the only one. At my office we did not agree to cut that wood and deliver it at the railroad or at the banking ground, as you call it, for $2.10 a cord. Two dollars and ten cents was the price he said they were paying for wood.
“ Q. Did you accept that price ?
“A. No; not on that terms, that we should deliver it at the track for $2.10. No, sir; we did not come to a final agreement that day anyway. I mean this: That we agreed that, as soon as I could see Mr. Shepard, we would notify him, and we did notify him that there was — I suppose, if we get right down to it, the contract was made then. We sent for him to come and scale it, and that would be the final deal in it. * * * When I was discussing the matter with Mr. Maddock, it was all standing timber yet. I am not acquainted with the members of the defendant corporation that I know of, and I made no agreement with them in regard to this wood. Mr. Maddock is the only man I had any deal with. The stumpage belonged to Mr. Shepard and me. We were partners. At the time I had talk with Mr. Maddock we were partners. I was acting for the copartnership. * * S:
“Q. What was the agreement as to the delivery of the wood. Didn’t you agree to deliver that wood at the rail.road for $2.10 a cord ?
“A. No, sir.
ilQ. You did not agree to.deliver that wood ?
'“A. No, sir; we didn’t agree to deliver it.
Q. Did you make any subsequent contract with Mr. Maddock in regard to this wood ?
“A. No, sir.
“Q. That is the only contract you ever made, the one you made at your office ?
“A. That is the only one.
“Q. And at your office you didn’t agree to cut that wood and deliver it at the railroad or banking ground, as you call it, for $2.10 a cord ?
“A. No, sir.
“Q. You say that he agreed to give you $2.10 for the wood ?
“A. That is the price he said they were paying for the wood.
“Q. Did you accept that price ?
(‘A. No; not on that terms, that we should deliver it at the track for $2.10. No, sir; we didn’t come to a final agreement that day anyway. * * *
“Q. Then you never made any contract at your office for this wood, is that right ?
“A. I suppose, if you get right down to it, the contract was made then. We sent for him to come and scale it, and that would be the final deal in it. * * * I never offered to sell to defendant any wood delivered at the tracks at $1. I did not offer to sell, nor did I sell, any wood to the East Jordan Chemical Company at $2.10 a cord delivered at track. I did not sell to them under that proposition; no, sir: * * * No money was advanced to us that I know anything about. The $1.10 a cord was received as part of purchase price for wood, and was paid from time to time, as we asked for the scale of wood in the woods. We were to deliver it on the track. The wood did not have to be delivered at the track before we got any pay for it; no, sir. We got $1.10 in the woods corded up. Had to be scaled first; yes.
“ Q. And before you could be paid, or demand your pay for the wood, it had to be delivered at the track, and had to be scaled, did it not ?
“A. The final payment; yes, sir. No, sir; we did not have to deliver at track and have it scaled in order to determine what amount of money was coming to us. It was partly determined in the woods. The wood was on 120 acres of land. I had a number of different wood choppers at work. Mr. Maddock was only notified by us the first time to come out and scale. After that, he came out every two weeks, without notice, and would scale all that was cut and piled up at that time in woods, and stamped it. It might have been letter ‘C,’ but I thought it was ‘O.’
“Q. Then, when the wood was delivered at the track, didn’t he mark it with another stamp ?
“A. Yes, sir.
“Q. And the wood that was stamped with the letter ‘ C ’ was a guide that assisted you in determining what wood was cut and what was not cut ?
“A. Yes, sir. The wood after it was stamped and paid for was theirs. We had an interest in it, of course, but we could not sell it to any one else. At the time the wood was destroyed in the woods it had all been scaled.
“Q. And the defendant had advanced this $1.10 on each cord that had been scaled ?
“A. They had paid us $1.10 on it; yes, sir. They paid us on that scale as soon as they could figure it up at the office. Yes, sir; it was a cash deal up till the final wind up.
liQ. It had been a cash deal with you up to the time when this wood was destroyed by fire. Is that right ?
“A. Yes; they made one scale after the fire that they paid for. No; they did not pay for that scale before they knew of fire. I think 1,085£ cords were scaled in woods, and for that we received $1.10 a cord. They paid us for 535f cords, at $1 a cord.”
No one else testified as to the contract. The attorney for the defendant'said in part in his opening statement to the jury:
“ I think, gentlemen of the jury, that it will be achnit ted by all hands — that is, the parties to this case, and those interested — that this fire that occurred and destroyed the wood in question was not due to the negligence or carelessness of either of the parties. I do not think there is any claim of that kind made' by either of the parties. The plaintiffs do not claim it, and we do not either.”
There was some testimony as to fighting the fire, and the cost thereof, and of the circumstances of the #79 payment made after the fire. At the conclusion of the testimony, the judge suggested there was no question for the jury, to which suggestion the lawyers acquiesced except as to the item for fighting the fire. Later the judge directed a verdict in favor of defendant for $233.47. In Exhibit A there was a credit for the item in relation to fighting fire, but there was a claim of .balance due defendant of $233.47. The case is brought here by writ of error.
It was and is the claim of defendant that the contract was an entirety for the sale and purchase of all the wood to be delivered at the railroad tracks at $2.10 a cord, and that defendant should be charged only with the amount of wood actually delivered, and should be credited with all moneys paid upon the scale in the woods so that all the loss from the destruction of the wood should fall upon the plaintiffs. This view was accepted by the trial judge. It is the claim of the plaintiffs that the agreement should be carried out as made; that when the wood was cut and piled and scaled and marked with the letter c C ’ in the woods, and the $1.10 a cord was paid, that this money became the money of the plaintiffs because it was so agreed. It is further claimed that, when the wood was later drawn to the railroad and scaled, plaintiffs were then entitled to the further sum of $1 a cord because it was so agreed. It is further claimed that, as none of the parties anticipated forest fires and made no agreements in relation thereto, the parties should be left where the fire left them, the plaintiffs losing their interest in the wood which was destroyed by the fire, and the defendant losing the pay menta which had been made according to agreement when the scale in the woods was made. The agreement sworn to by Mr. Kelley is not ambiguous. It is not denied by any witness upon the stand. No testimony was offered by defendant as to that phase of the case. The agreement must control the case. Defendant should have paid for the 160 cords delivered at the railroad track.
The item of $36 for fighting the fire demands some attention. This expense was not incurred at the request of the defendant. It is said by plaintiffs that, when notified of the expense, defendant credited plaintiffs with the amount thereof, and thereby became liable to pay. This contention loses its force when it is stated that this credit appeared in a statement charging plaintiffs with all payments made and crediting them, in addition to the $36, with only the wood delivered upon the railroad, which statement claimed a balance due defendant of $233.4?. We think this does not establish a. liability for the $36 item.
Judgment is reversed, and a new trial ordered.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Brooke, J.
This is a divorce case in which a decree was entered for complainant upon the ground of extreme cruelty, and the sum of $1,500 was awarded her as permanent alimony. Complainant appeals for the simple purpose of securing an increase in the allowance made by the circuit court.
The parties were married in 1899, and lived together 9£ years. There are no children. At the time of the marriage the court found that complainant had about $100, which she gave to defendant, and defendant $2,450. At the time of the separation, the court fixed the value of defendant’s real estate at $4,000, and his personal estate (exclusive of household furniture) at $1,100. Much testimony was taken as to the value of the farm, and, as is usually the case, it was contradictory in character; but there would seem to be no question that the farm is fairly worth $4,500, inasmuch as that sum was offered for it by one witness of conceded financial ability while upon the stand. Defendant himself, who gave the only testimony as to the value of the personal property, fixed that value at $1,194.80. The household furniture, not included, is worth between $200 and $300, so that the net estate of defendant is nearly, if not quite, $6,000. The record discloses the fact that defendant is not in good health; but it likewise shows that complainant is broken in health and not able to do hard work.
"While we do not desire to encourage appeals where the amount involved is trivial, we are, nevertheless, of the opinion that, in view of the relative ability of the parties to produce an income in the future, the allowance made by the learned circuit judge was too low.
A decree will be entered in this court for the sum of $2,000 as permanent alimony; but no costs will be allowed complainant upon this appeal, for the reason that an allowance has already been made in this court covering the expense to complainant for counsel fees and disbursements, which has been paid by defendant.
Modified as above indicated, the decree of the court below is affirmed.
Ostrander, Hooker, Moore, and McAlvay, JJ., concurred. | [
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Hooker, J.
After the death of E. Crofton Fox, late of Grand Rapids, a question arose over the payment of the transfer tax, commonly called “inheritance tax,” due to the State. The record does not show what measures were taken, if any, to set the probate court in motion to determine the amount of transfer tax chargeable; but we find that an order was made, and that it was not satisfactory to the auditor general, who promptly appealed to the circuit court, where the probate order was reversed. The cause was brought to this court on case made by the estate, and it was reversed and the probate order sustained, by an opinion reported in 159 Mich. 420 (124 N. W. 60), which was silent upon the subject of costs. No formal order has been made in the case, and counsel ask the settlement of a proposed order. We understand that the only dispute is over the question of costs.
The decision must depend on the applicability of section 11277, 3 Comp. Laws:
“ Sec. 22. In all civil suits and proceedings by or in the name of the people of this State, instituted by any officer duly authorized for that purpose, and not brought on the relation, or for the use of, any citizen, or upon any penal statute, the people shall be liable for costs in the same cases, and to the same extent, as if such suit or proceeding were instituted by an individual.”
That there has been “a civil suit or proceeding by or in the name of the State by an officer duly authorized for that purpose ” seems obvious. Our understanding is that the probate court was asked by the State authorities to make an order for the payment of a sum in excess of the amount chargeable under the law. If so, that was to all intents and purposes a civil proceeding instituted by such officer. But if we should hold that it was not, and that the probate judge had merely performed a routine duty in the settlement of the estate of his own motion or on request of the executor, the appeal from his order by the auditor general was the institution of a suit, or at least a civil proceeding, within the meaning of said section, and not within its exceptions, which has resulted in judgment in both the circuit and this court. The estate is entitled to costs to be taxed, and the order proposed containing this provision is approved.
Moore, McAlvay, Brooke, and Blair, JJ., concurred. | [
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McAlvay, J.
The injury to plaintiff for which this suit was brought occurred while she was riding as a passenger on a car of defendant in the city of Detroit, when a car was derailed. It is the same occurrence described briefly in the case of Mueller v. Railway, ante., 313 (127 N. W. 335), to which reference is had. No further facts and details as to how the accident occurred are given, for the reason that there is no dispute upon these facts. Upon the trial no evidence was presented on the part of defendant. Plaintiff recovered a verdict of $2,000. Defendant is before this court upon writ of error, claiming that the verdict was excessive, and not justified by the evidence, also that the court erred in permitting the jury by his charge to consider the testimony given by plaintiff relative to her physical condition at the time of the trial, claimed by her to have been the result of her injury.
As we understand defendant’s contention, it is that, because of the testimony of plaintiff’s attending physician as to her condition, her testimony which tended to show a condition up to the time of the trial claimed as resulting from the accident should have been stricken out and withdrawn from consideration. The trial occurred October 20, 1909. The physician first attended her March 27, 1908, two days after the injury. His testimony as to the external injuries visible and found by him is that they were not very severe, and from those, as far as he could say, she had recovered. He says:
The subjective symptoms were the most severe — the limited motion when she went to turn. We can tell when a person is actually hurt or faking in a complaint of that sort, because they will show that it hurts them when they move. * * * Her motions were limited, showing that she had been strained and sore. There is no doubt in my mind that plaintiff had been injured.”
As to whether she had received any nervous shock, he said:
“ She suffered some, of course. She was not unconscious, and she was not paralyzed. I have treated her since. The attendance was pretty complete after the accident up to the latter part of April, and then I saw her off and on up to September 24th of this year. The treatment up to that time was for nervousness that she complains of. I did not know her before the accident.”
He proceeded:
“ Well, of course, symptoms are entirely subjective.”
He explained that subjective symptoms were things which she complained of, for which he was obliged to take her word.
“I treated her for insomnia and nervousness, and that treatment extended to September of this year. There were no objective symptoms except what I have stated. As to other matters, I have got to determine them upon the history of the case as given by the patient. I ascertained from time to time as nearly as I could what her condition was.”
He stated that the injury to the ankle was nothing severe; that the last time he examined her was on September 24th.
“From the condition which I saw then, I would say in regard to the character of the injuries that there is no evidence of permanency in the symptoms which she presents.”
He treated her in September for lack of power to sleep, as she claimed, and had treated her from time to time since the accident for that complaint. She had been in the office quite often complaining of nervousness and inability to sleep. To a question stated hypothetically describing the accident, injury, etc., the doctor answered that it might produce insomnia. To a question by the court, he answered that such injuries as she gave evidence of when he saw her could be followed by such nervousness and insomnia; that it would be impossible for anybody to tell how long it would continue. On cross-examination he said:
“A person simply looking at her would say that she had healed up and recovered; that she did not have the appearance of a nervous person. All the patient’s reflexes are perfect, which shows that all her powers as far as they are concerned are all right.”
He said she might be suffering from the result of the injury, and no one would or could explain it but herself.
Plaintiff testified that, on being struck on the forehead at the time of the accident, she became unconscious, and knew nothing until she came to in the. undertaker’s shop. She said she was injured upon her nose, arm, chest, mouth, and ankle; that she was in the hospital three days, and confined to her bed at home for eight weeks; that, before the accident, she always had perfect health, doing her own work and going out to work, earning $6 and $6.50 a week. Since the accident she is always sick, dizzy, and, when the weather changes, in pain; that she cannot do her own work now, but must keep her daughters at home for that purpose; that she cannot sleep on account of pains in her arm, chest, and ankle; that she cannot breathe through her nose. The doctor was recalled for further cross-examination, stating that plaintiff did complain to him of her right arm; that he had no opinion as to its cause; that it might be rheumatism or neuralgia; that there was no ocular evidence after the accident to warrant the supposition that this would follow, yet accidents were erratic, and “you cannot tell what will follow.” We have given the substance of all the testimony bearing upon this question.
The charge excepted to is as follows:
“ I am asked to charge you that there is no evidence in the case from which you can find that the trouble with the plaintiff’s right arm, of which she now complains, has resulted from the derailment or the injury received thereby. I cannot say that, gentlemen of the jury. If you find that she was not suffering from the injury of which she now complains before, and she suffers now from the injury, I think it is a matter you may take into consideration, and I think it is a matter you may find. To what extent she suffers in that respect in the right arm at the present time is, of course, wholly a question for you. It is for you to say what credence any of the witnesses which have sworn shall have in your sight.”
We do not agree with defendant’s contention. For the court, under the circumstances, to have taken the course urged would have been palpable error. The testimony of the plaintiff was material and received without objection. The substance of the testimony of the physician who had treated her up to within 30 days of the trial is that although she is, as far as can be seen, recovered, and nothing you could see would warrant one in supposing that the present condition as stated by her would follow this accident, yet it might follow. The question was for the jury. There was not the slightest intimation that the plaintiff falsified. The jury reconciled the testimony of both witnesses, and found for plaintiff. It is not a case where this court will reverse the action of the trial court in refusing to set aside this verdict because it is excessive. The record in our opinion contains nothing which would warrant such action on our part.
The judgment is affirmed.
Ostrander, Hooker, Moore, and Brooke, JJ., concurred. | [
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Moore, J.
This case was tried before the judge who made findings, the essential parts of which are as follows:
“(1) The plaintiff in this cause is a practicing attorney.
“(2) The defendant was a farmer and was on or about January first, A. D. 1905, the owner of (certain lands which are described in detail).
“(3) That on or about said date certain parties for whom one Morton B. Wheeler of Grand Rapids was acting, and with whom said Wheeler was interested, were contemplating the building of a dam on White river, in said county [Oceana], which might necessitate the use of said lands for the purpose of flowage, and it was contemplated and intended by the defendant in this action to clear up, if necessary, such defects as there might be in the title to said lands, and to sell or dispose of the same to the said Morton B. Wheeler and his associates.
“ (4) That, for the purpose of enabling said defendant to present a merchantable title to said lands and to procure the sale of the same to said Morton B. Wheeler and his associates, the defendant at about the time stated employed this plaintiff as his attorney in the matter of' making his title in and to said lands merchantable, and to assist the defendant by his advice and services, as such attorney, in disposing of said property to said Wheeler and his associates.
“ (5) For such purpose, at about the time named, plaintiff and defendant entered into an agreement, which, in substance, was as follows: Said plaintiff was to act for said defendant as his attorney in connection with perfecting the title to said lands, and in assisting said defendant to sell or dispose of the same to said Wheeler and his associates; said defendant agreeing to pay the plaintiff, and the plaintiff agreeing to receive therefor, such reasonable attorney’s fees as the plaintiff might from time to time become entitled to for all of his services, so to be rendered as aforesaid. Said defendant, in addition to the payment of such fees for all such services rendered, was to pay said plaintiff all his expenses and expenditures in connection with such work. In addition to such payment for services so to be rendered, and expenses and expenditures so incurred, said defendant agreed with the plaintiff that in case he, said defendant, should be able to sell to said Wheeler and his associates his rights in said property for the sum of $25,000, defendant would give said plaintiff from the proceeds from said lands the sum of $1,000; that, if such sale should be made for the sum of $16,000, said defendant would give said plaintiff from such proceeds the sum of $500, either of which sums, respectively, was to be given plaintiff only in case such sale should be made in such manner to said Wheeler and his associates, or some other person, and the same was to be completed, and that such sum was to be given said plaintiff only out of the proceeds of the sale of such land.
“(6) It was also understood and agreed between said parties that said defendant was to retain control of all the negotiations connected with such deal and was to determine the price at which such property should be sold, and reserved and retained the right to use all legitimate means to obtain as large a price therefrom as possible, said plaintiff only to furnish such assistance therein as he might be requested to furnish.
“(7) Plaintiff has been paid by defendant in full, and something more, for all such services, expenses, and expenditures that he has rendered to, or incurred in connection with, such deal, or pursuant to such agreement.
“(8) On or about the 30th day of September, A. D. 1905, plaintiff and defendant met at the village of Holton in Muskegon county with one Russell Updyke, who was then and there acting with limited authority in behalf of said Morton B. Wheeler and his associates who had authority at that time only to negotiate for an offer by defendant for the purchase of defendant’s rights in the property named, but who did not have authority at that time to close a deal for the purchase thereof, having only the power and right to obtain from defendant a proposition for such sale and purchase, and which it was necessary for him to present and submit to his principal, Morton B. Wheeler, then in the city of Grand Rapids, for acceptance or rejection, at which meeting and interview at Holton aforesaid said defendant did make a proposition to said Russell H. Updyke, the same being oral and not in writing, who received the same for and on behalf of said Wheeler, and who took the same to said Wheeler at Grand Rapids, and presented the same to him on the following day,_ viz., October 1, 1905, at which time said Wheeler rejected such proposition, and, instead thereof, made and instructed said Updyke to make to said defendant a counterproposition, but which counterproposition was» never presented or made to defendant. On Monday, October 2, 1905, this defendant instructed plaintiff herein to withdraw the proposition that had been so made by defendant at Holton on September 30, 1905.
“(9) The proposition made by defendant at Holton was thereupon and on October 2, A. D. 1905, withdrawn after said Morton B. Wheeler had on October 1st determined to and had rejected the proposition made by defendant at Holton on September 30th, and such deal was not closed, nor has there been any such deal closed for the disposal of such property, and defendant is still the owner of such interest therein as he had at the inception of these arrangements.
“ (10) That no change was made at any time in the terms of the agreement between plaintiff and defendant made as the court has hereinabove found.
“ Much of the testimony offered in behalf of the plaintiff in this cause was objected to on the part of the defendant, but the same was admitted subject to the objection of said defendant. From all the testimony admitted in said cause, I find the facts as above stated, and I find as conclusions of law:
“ (1) That defendant is not indebted to plaintiff in any sum of money whatsoever.
“(2) That plaintiff has no cause of action against said defendant.
“Let judgment therefore be entered for the defendant, with costs to be taxed.”
A request was made for other and different findings, which request was refused and exceptions taken thereto. The case is brought here by writ of error.
It is the claim of appellant that he is entitled to $800 for services rendered in procuring an arrangement by which Mr. Wheeler was willing to buy the lands for $6,800, and leave thereon a quantity of timber valued at $500. This claim is made upon the theory that, though no sale in fact was made, a sale was prevented by the act of defendant, and that plaintiff is entitled to the $800 the same as though a sale had been made. The record is quite voluminous. We shall state sufficient of it to present the questions involved. The defendant was the owner of certain lands. Mr. Wheeler was engaged in an enterprise which caused him to write defendant in February, 1905, about one of the descriptions, as follows:
“ This is a piece of property that it is necessary for me to have in connection with my water power properties, which, of course, you know about, and wish to ask what you will take for this piece.”
The defendant’s reply is as follows:
“Holton, Michigan, February 8, 1905. “Mr. Morton B. Wheeler,
“Grand Rapids, Mich.
“ Dear Sir: In reply to yours of Feb’y 6th, I have heard of your dam proposition through the Grand Rapids Press. I own eight forties on White River and its tributaries and also own a saw mill and figure to sell them together. Would hardly care to break in on one forty. Any proposition you have to make will be given consideration it deserves. You may write my attorney at Hart, Mich., Mr. R. F. Skeels. ‘
“ Yours truly,
“ Walter Snow.”
Before sending this reply,, he inclosed both letters in one addressed to Mr. Skeels, the material parts of which are as follows:
“Holton, Michigan, February 8-05. 1 “ Mr. R. F. Skeels,
“ Hart, Mich.
“ Dear Sir: You will find inclosed letter' from Mr. Wheeler and my answer thereto, but I was afraid to send it until you saw it, as they are trying to get some catch on me somewhere. If you do send it take a copy. * * * I figure that my knowledge, what land I own on White River, what I could buy on Manistee, would be worth good, big money to those people as I now control on White River two thousand horse power. I figure I ought to have $25,000. That would mean a $1,000 for you and the lowest would be $2,000 per forty and eight forties, $500.00 for the mill, which would be your money. I either get big money or none.”
Mr. Skeels then did work for the defendant of a professional character for which he rendered bills, and payments were made to him by checks. He concedes he has been paid for these services, while defendant testified he had sent him payments amounting to $21.90 in excess of his bills. Negotiations were had with Mr. Wheeler, but he declined to pay $16,000 for the land.
Plaintiff testifies that the last of September, 1905, he received a letter containing the following:
“ After you left. I think we had better deal if we can get six thousand and the timber on 29-82 and 33. Don’t let the deal go down if you can help it.
“Snow.”
To which he replied:
“Hart, Mich., Sept. 29, 1905. “Walter Snow, Esq.,
_ “Holton, Mich.
_ “My Dear Sir: Yours at hand and contents noted. I have doubts about getting them up to $6,000.00, but I am of the opinion I could close a deal somewhere around $5,000. I will not write them however until I hear from you as I want to know just how far I can go. * * * Now it is evident we are not going to get any such figure as we first thought we would, and before I close the deal with them I think it would be well for us to understand each other as to just how the proceeds are to be divided between us. In other words, favor me with reply at once and state just what I am to have if I close deal at $5,000, and just what I am to have if I get over $5,000 and under six thousand, and what I am to have if I get over six and under seven, and again at over seven and under eight, and again at over eight and under nine, and again at over nine and under ten. As long as the deal will be consummated, if at all, on different lines than we figured on, I think these better be determined before we get a deal closed. * * *
“Yours truly,
“Rueus E. Skeels.
“ P. S. Owing to the fact of my building and great expense I am to in connection therewith, kindly figure on whatever my portion is as being cash, and yourself handling whatever securities we see fit to take, if any.”
He testified he got a reply by phone, and that he arranged an interview between himself, Mr. Snow, and Mr. Updyke, who represented Mr. Wheeler, at which time it was agreed the lands were to be taken by Mr. Wheeler at $6,800 and timber valued at $500 to be left for Mr. Snow. We now quote from his testimony:
“ I stated to Mr. Snow, standing in front of the Temple, that I felt, inasmuch as I had got him $800 more than his letter had asked me to get, and that if I had closed at his figure he would have only received $5,500 out of it and I $500, according to his conversation with me by phone, that I felt I ought to have the $800. Mr. Snow then stated to me, if they would make the contract I suggested and close a deal in that manner, that he would give me $800. Mr. Updyke, Mr. Snow, and myself then went into the parlors of the hotel at Holton, and we reduced the memorandum to writing. I have it here and offer it in ■evidence.”
Mr. Updyke had no authority to sign the memorandum for Mr. Wheeler, and it is claimed Mr. Snow did not sign it because he had told somebody he would not sell until a later date. The memorandum was taken to Mr. Wheeler by Mr. Updyke and Mr. Wheeler at once addressed him as follows:
“ This is October 2nd, 1905.
R. H. Updyke.
“Dear Sir: In regard to the proposed deal with Mr. Snow, I have gone over the same very carefully and wish to say, that from my standpoint it will be absolutely impossible to make such a deal as he wants. If Mr. Snow is willing to go in with us now on the chance of getting something or nothing, I would be willing to make a deal with the following conditions.”
Then follow the details of a proposition.
“ I have gone over this matter very thoroughly, and this is the stand I must take and it is up to Mr. Snow to do business if he will. * * * I feel quite sure Mr.
Snow will be able to look at the matter in this light, and that we will be able to go along and work the deal out to' our mutual advantage.
“Yours respectfully,
“M. B. Wheeler.”
It is claimed this letter was given for the purpose of obtaining better terms from Mr. Snow, and that Mr. Wheeler gave Mr. Holmes and Mr. Updyke secret instructions to close the deal if necessary, according to the terms stated in the memorandum. Before this letter was shown to Mr. Snow, he decided not to sell for less than #16,000, and so notified the plaintiff, who, in turn, notified Mr. Wheeler. The lands had not been sold at the time the case was tried. The defendant testified as follows:
“ I have heard this correspondence all read. I made a contract with Mr. Skeels at one time to do some business for me, about as it was read there. He was acting as my attorney. Presented me with bills from time to time. I think I paid all the bills. Think he owes me $21.90 now. Except this $800 he claims here, I think I overpaid him $21.90, money he received from me in excess of the bills that he rendered. I never at any time closed a deal with Mr. Updyke and Mr. Wheeler. I have heard the testimony of Mr. Skeels. There was no agreement of sale and purchase made between me and Mr. Updyke and Mr. Wheeler at Holton on the 30th of September, 1905. We talked there from early morning till way along towards night, and at last we made him a proposition. Mr. Up-dyke was to submit that proposition to his partner or company or whatever it was, for their acceptance or rejection. On that day there was no acceptance of that proposition that I know of. I didn’t hear anything about it if there was. I never heard of any acceptance at any time of the proposition. I never made a sale of this property. I have it yet, and in the same condition that it was at that time. Never have sold or disposed of it to any one. In the negotiating or management of this affair as to the disposing of this property — securing it or disposing of it— Mr. Skeels was acting as an attorney for me. I don’t know anything about the negotiations he made for the sale of this property except what he told me.”
It is apparent from this record that plaintiff was not employed asa broker to find a purchaser for this land. Mr. Wheeler had opened negotiations contemplating a purchase. Mr. Skeels, in addition to his professional work, was to aid in closing the deal. The first letter from the defendant to the plaintiff indicated that compensation for this work depended upon the sale being made. Mr. Skeels’ letter of September 29, 1905, indicates the same thing, and it is a fair inference from his testimony about the $800 fee that it depended upon the consummation of the deal.
It is a well-settled rule of law where the case is tried by the judge who makes findings of fact that, if there is evidence upon which to base the findings, they will not be disturbed. See Cragin v. Gardner, 64 Mich. 399 (31 N. W. 206); Bateman v. Blaisdell, 83 Mich. 357 (47 N. W. 223); Smith v. Smith, 144 Mich. 139 (107 N. W. 894); Buckhout v. Browne, 160 Mich. 460 (125 N. W. 370).
There is testimony tending to support the findings of fact.
Judgment is affirmed.
Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred. | [
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Hooker, J.
As this cause is for divorce, and is mainly a question of fact, it requires no lengthy discussion, especially as no possible good could follow the spreading of the differences of the parties upon the records of the court or the pages of its reports. The application is by the husband, and an earnest effort to familiarize ourselves with the testimony has induced the conviction that complainant has proved his case. Counsel for defendant say that the proof shows mere incompatibility. We think it shows more. That there was incompatibility is obvious enough, but we think its manifestations on the part of the defendant amounted to extreme cruelty. It is contended that complainant is not entitled to a divorce, because of his con-donation of defendant’s misconduct. We are oftthe opinion that the case is well within the rule of Creyts v. Creyts, 133 Mich. 4 (94 N. W. 383). See, also, Creech v. Creech, 126 Mich. 267 (85 N. W. 726).
It appears that the parties have one child, which is with the mother. There is no evidence of unfitness on the part of the mother to have charge of it, and its custody will be awarded to her until it reaches the age of 14 years, or until the further ordey of the circuit court. No request for alimony or provision for the maintenance of the child has been made. We therefore recommit the case to the circuit court for further proceedings in this regard should application be made hereafter.
A decree in conformity to the above opinion may be taken, granting to complainant a decree of divorce from the bonds of matrimony, and allowing to defendant her expenses of printing, and a solicitor’s fee of $75.
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