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Hooker, J.
The defendant was a retailer of beer, doing business at Saginaw, and for many years purchased the beer that he sold from the plaintiff, a brewing company at Toledo, Ohio. During this time — a period of more than 25 years — there was an open account between them, except as this statement may be affected by transactions which, plaintiff’s counsel contend, amounted to settlements and statements of account. It was customary for plaintiff’s representative to call upon defendant several times each year, with statements of the account, when differences would be talked over, adjustments made, and money paid and other allowances indorsed as credits, a balance struck, whereupon the defendant would sign the paper. According to the plaintiff’s contention, these statements show a balance due it of $3,261.83, at the time of the trial. The defendant claims that prior to 1893 he suffered damage in his trade, from the furnishing of a poor quality of beer, and that an agreement was made between the parties adjusting said damages at $3,200. It was agreed, however, that he continue to buy beer of the plaintiff and should receive no part of said damages until an allowance of 25 cents a barrel upon his purchases of beer to be made thereafter should amount to that sum, viz., $3,200. Statements continued to be made and settled as before, but it was in contemplation of such allowance and application upon his account, when sufficient beer should have been purchased. The case was submitted to the jury who found a verdict for plaintiff of $67.90 after allowing defendant’s claim of $3,200. The plaintiff appealed from the judgment entered upon the verdict.
Counsel for plaintiff say that the three assignments of error are all based on the proposition that these accounts stated preclude the interposition of a defense that there was a different understanding than that shown by the statements of account. In short, we understand plaintiff’s counsel to contend that these statements of account being in writing and signed by the defendant cannot be varied by parol testimony. This cause was before us at the June term of last year, and is reported in 157 Mich. 518 (122 N. W. 124). The same questions were raised upon that record as upon this, and also some questions arising upon the instruction based on the pleadings, and upon the exclusion of evidence offered by the plaintiff. The decision was made to rest upon the latter, and no allusion is made in the opinion to the question of the right of defendant to question the statement of account. Moreover, we cannot say that the determination of such question was involved. Neither expressly nor by necessary implication does that opinion sustain plaintiff’s contention on that hearing.
We are of the opinion that the plaintiff’s contention cannot be sustained. The parties do not agree upon the circumstances attending the making and signing of the statements. Defendant produced testimony that the first one made was accompanied by an agreement which, if established, showed that it was no more than an agreed, memorandum of account of beer furnished, and of cash and some other credits allowed. It contained no express statement that it was a final account, nor any express promise to pay, while any implication of these is precluded by the express condition shown, viz., that it was subject to a conditional credit to be given later, and this testimony affects all subsequent statements. This raised a question for a jury. See 1 Cyc. pp. 381, 398; Spellman v. Muehlfeld, 166 N. Y. 245 (59 N. E. 817); Valley Lumber Co. v. Smith, 71 Wis. 304 (37 N. W. 412, 5 Am. St. Rep. 216); Charlotte Oil & Fertilizer Co. v. Hartog, 85 Fed. 150 (29 C. C. A. 56); Batson v. Findley, 52 W. Va. 343 (43 S. E. 142); McCormick v. Railway Co., 154 Mo. 191 (55 S. W. 252); 1 Am. & Eng. Enc. Law (2d Ed.), p. 446 and note; Harris v. Woodard, 40 Mich. 408; McColl v. Jackson Iron Co., 98 Mich. 482 (57 N. W. 578). See, also, 1 Cyc. pp. 368, 369, 375, 380; 11 Current Law, p. 22.
The judgment is affirmed.
Ostrander, Moore, McAlvay, and Brooke, JJ.„ concurred. | [
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Brooke, J.
The writ of error in this case is prosecuted by certain heirs of William Fitzgibbons, deceased, for the purpose of reviewing a judgment of the circuit court, by which it was determined that Sarah Jane Fitzgibbons is the lawful widow of deceased, and, as such, entitled to participate in his estate.
Certain facts appear in the record, about which there is no dispute. William Fitzgibbons, deceased, was married to Armenia Allen, at New Haven, Oswego county, New York, in the year 1868. After the marriage, he and his wife lived at North Yolney, New York, until 1876, during which time, two children, G-race and William, Jr., were born to them. The family then removed to Galt, Canada, where a third child, Ella, was born. When the youngest child, Ella, was about two years old, in 1878, deceased sent his wife, Armenia, and the three children, back to New York State, and himself came to Michigan. From 1878 to June 20, 1881, deceased was in correspondence with his wife, Armenia. In 1880, he had settled in Saranac, Ionia county, this State, and there boarded with a family named Stewart. Deceased shortly began paying court to a daughter, Sarah Jane (appellee), who was then about 19 years of age. On February 14, 1881, he took her to Grand Rapids and there went through a marriage ceremony with her, after which they returned to Saranac and commenced to live together as husband and wife. Their home remained in Saranac during the balance of his life, though he was absent at times on business. Appellee bore to deceased one child, a daughter, Madeline, born February 6, 1891. From 1881 to 1900 deceased had no correspondence with his family in New York, so far as the record' discloses. In the latter year, his son, William, went to Saranac and discovered himself to his father. Deceased took his son to his home for dinner and supper and held a long conference with him, in which he told his son that he was in Armenia’s power, that he did not want to be punished for bigamy, and that when he, the son, needed help, to let him know. Thereafter, and up to the month of his death (November 13, 1904), he paid various small sums to his son, which were devoted to the care of Armenia, who died September 3, 1903. It is apparent that deceased was not aware of the death of his wife, be cause he sent his son $20 but a few days before his own death. During the 23 years appellee and deceased lived in Saranac, they were reputed to be husband and wife; they received and were received socially, moving among the best people of the vicinity. Deceased seems to have acquired the respect and confidence of the community, holding the office of postmaster at Saranac for seven or eight years preceding his death.
Prior to her marriage with deceased, appellee heard that deceased was a married man. Upon inquiry, deceased denied the fact of his prior marriage. Again, in 1891, shortly after the birth of the daughter, appellee was told by Mary Fitzgibbons, a sister-in-law of deceased, of the former marriage, and that there were three children. Appellee then made further inquiry of deceased, whereupon, she testifies, he admitted his former marriage, but claimed to have a divorce. She makes the claim that she implicitly relied upon the statements made to her by deceased, both before the marriage ceremony and later, when she taxed him with his bad faith. She states that in spite of the rumors which reached her ears she went through the entire 23 years of her association with deceased in absolute ignorance of the existence of his wife, and in good faith believing herself to be his lawful wife. She swears that she had no knowledge of the death of Armenia, in 1903, because she never knew of Armenia’s existence, and that after Armenia’s death no new contract was made between herself and her husband, their relations continuing after that event (of which deceased also was ignorant) in reliance upon the ceremonial marriage, contracted in 1881.
Under the facts above disclosed, the court submitted to the jury the question of whether or not appellee was the legal widow of deceased, making the determination of the jury, upon that point, rest solely upon the good faith of appellee in entering into the contract and in continuing to live with deceased thereunder, up to the time of his death, using the following language:
“It is a question of belief. She must have been informed to that degree the burden is upon her to establish. she was acting in good faith after the other side have once established there was a former wife living at the time of the marriage. Then the burden shifts to Jennie and it is incumbent upon her to show by a preponderance of evidence she acted in good faith; that is, she believed William Fitzgibbons was her lawful husband and there was no impediment to the marriage between her and William Fitzgibbons, if she honestly believed that, taking into consideration all that was said and told her in the discussion she had with her husband, if she was convinced from what he said, and other sources, these rumors were false and untrue and she was laboring under the honest belief that she was his lawful wife, that she had the legal right to marry him and he to marry her at the time it was done, she would be considered innocent, and the law would consider her the legal wife and widow of the deceased because of the inference that they had a common-law marriage after the death of the first wife, provided she was innocent all the way along.”
The legitimacy of Madeline was made to depend upon the finding of the jury as to her mother’s legal status. The jury, apparently with much difficulty, found that appellee was the legal widow of deceased and that Madeline was his legitimate daughter.
Section 8589, 3 Comp. Laws, provides:
“Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of parties capable in law of contracting, is essential.”
Section 8616 provides:
“ All marriages which áre prohibited by law, on account of consanguinity or affinity between the parties, or on account of either of them having a former wife or husband then living, * * * shall, if solemnized within this State, be absolutely void- without any decree of divorce or other legal process.”
It being conceded upon this record that the marriage between deceased and Armenia Allen, in 1868, was a valid union and that Armenia was alive and undivorced in 1881, when the contract between deceased and appellee was en» tered into, it is clear that the later marriage was absolutely void, and, during the life of Armenia, afforded no protection to appellee. At no time prior to Armenia’s death was deceased legally competent to give his assent to a union with appellee. His relations with appellee during those 22 years were meretricious and known to him to be such, for on June 20, 1881, four months after the ceremony was performed between him and appellee, he wrote his wife, Armenia, acknowledging the receipt of a letter from her, and promising to return to her as soon as possible. On September 3, 1903, Armenia died. Then, for the first time, it became possible for deceased and appellee to intermarry. Did they in fact do so ?
It is apparent from the record that during the last year of the life of deceased (following the death of his wife) he treated appellee in all overt respects as a husband should treat his wife. He addressed numerous letters to her as his wife, and subscribed them as her husband, and during that year he lived at their home with her for several months, during which time the relations of husband and wife seem to have been sustained, so far as was apparent to the world. His conduct, however, during this period was not different in any respect from his conduct during the preceding 22 years, when he knew his relations with her were adulterous. Under these circumstances, it is claimed by the appellee, and, in effect, so charged by the court, that, assuming the good faith of the appellee in entering into the void contract and continuing to live under it, a marriage should be presumed as soon as the impediment was removed. These facts and circumstances, if uncontradicted and unexplained, might support the inference that a new and valid contract was entered into upon the death of Armenia, but such inference is impossible, if negatived by positive evidence.
Schouler’s Domestic Relations (5th Ed.), § 15, defines marriage as follows:
“ To constitute a perfect union, the contracting parties should be two persons of the opposite sexes, without dis qualification of blood or condition, both mentally competent and physically fit to discharge the duties of the relation, neither of them being bound by a previous nuptial tie, neither of them withholding a free assent.”
And further, at section 26:
“A union once originating between man and woman, purely illicit in its character, and voluntarily so, there must appear some formal and explicit agreement between the parties thereto, or a marriage ceremony, or some open or visible change in their habits and relations, pointing to honest intentions, before their alliance can be regarded as converted into either a formal or an informal marriage. Nor is the issue between informal marriage and illicit intercourse to be concluded by the conduct of the pair towards society. They may, for convenience or decency’s sake, hold themselves out to third persons as man and wife, while yet sustaining at law, and intentionally, a purely meretricious relation.”
Eversley on Domestic Relations, p. 2, says:
“Marriageis a state or relation depending for its existence upon the fact of parties competent to contract the relation, and their legally voluntary present consent to do so.”
At page 7, he says further:
“The presumption of marriage, arising from cohabitation and repute, can only be rebutted by clear and satisfactory evidence. * * * But this presumption of law in favor of marriage does not hold good under all circumstances.”
In 1 Bishop on Marriage, Divorce & Separation, § 844, it is said:
“ Where all the facts are covered by direct proofs, and there is no room to presume others, they will be held to constitute marriage only when they disclose a concurring consent to it, by the two minds at the same instant.”
Particular stress is laid by counsel for appellee upon some language contained in the opinion of this court, in the case of Barker v. Valentine, 125 Mich. 336 (84 N. W. 297, 51 L. R. A. 787, 84 Am. St. Rep. 578), but we believe that a careful reading of the case will disclose that it is not out of harmony with the earlier decisions of the court. In that case, Valentine had started divorce proceedings against his first wife, Ida, in New York. No divorce was granted. He removed to Michigan and entered into relations with the second woman, Margaret. After four years, he and Margaret, in September, 1889, returned to New York where Ida caused a warrant to be issued against him for nonsupport. Ida died in October, 1889, a fact apparently known to both Valentine and Margaret. They returned to Detroit where he made application in a fraternal order for insurance, describing Margaret as his wife. He introduced her as his wife, lived with her as such, and she was so recognized by his friends and relatives for seven years.
We understand that the court held in this case simply that the evidence disclosed by the record was sufficient to support an inference that the parties had entered into a new contract, after the removal of the impediment. For, in discussing the cases of Rose v. Rose, 67 Mich. 619 (35 N. W. 802), and Van Dusan v. Van Dusan, 97 Mich. 70 (56 N. W. 234), the court said:
“There is nothing in either of these cases to indicate that if, after the impediment to a lawful marriage between them had ceased, they had intended to take each other as husband and wife, and had indicated that intention by treating each other in all respects as though they were married, and had introduced each other as husband and wife, and had so held themselves out to the world, and had lived together as husband and wife, the court would not have held that the presumption that the illicit relation, which existed when they commenced to live with each other, continued after the impediment to their marriage ceased, was overcome.”
An examination of the authorities cited in this case, both from Michigan and other States, shows that in each case the question as to whether or not a common-law marriage existed was determined upon the evidence.
A careful examination of all the cases in Michigan leads us to the conclusion that a contract of marriage can not be presumed when such presumption would do violence to the facts in the case, fully covered by the proofs. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164); Peet v. Peet, 52 Mich. 464 (18 N. W. 220); Rose v. Rose, supra; Williams v. Kilburn, 88 Mich. 279 (50 N. W. 293); Van Dusan v. Van Dusan, supra,; Flanagan v. Flanagan, 116 Mich. 185 (74 N. W. 460); Lorimer v. Lorimer, 124 Mich. 631 (83 N. W. 609); Judson v. Judson, 147 Mich. 518 (111 N. W. 78).
The question in the case at bar appears to us to be: Did deceased and appellee, at any time subsequent to the removal of the impediment, presently agree to take each other for husband and wife, and live together in that relation ? Clearly they did not. He did not, because he died in the belief that his wife, Armenia, was still alive. Her assent to the new contract, if it could be assumed, and it is negatived by her own testimony, would avail nothing, for both must consent at the same time, else no contract follows. To predicate the legal status of the appellee upon her good faith alone is not only contrary to authority, but would result, possibly, in the absurdity of a man leaving two or more legal widows.
If deceased, in the case at bar, had entered into a contract of marriage with a woman in South Carolina, the State in which he was doing business at the time of his death, that woman, entering into the relation in good faith, would also have become his wife upon the removal of the impediment, and would now also be his legal widow. We are aware that the principle contended for by appellee has received recognition to some extent in some other jurisdictions, notably in a late case in New York (In re Wells’ Estate, 123 App. Div. 79 (108 N. Y. Supp. 164), 194 N. Y. 548 [87 N. E. 1129]), but we are satisfied that no such doctrine has been or should be incorporated into the law of this State.
The judgment should be reversed.
Ostrander, Hooker, and McAlvay, JJ., concurred with Brooke, J.
Moore, J.
I cannot agree with the conclusion reached by Justice Brooke. The record shows that Mrs. Fitzgibbons entered upon and continued her relations with William Fitzgibbons and bore a child to him in full belief that she was lawfully wedded to him, and without knowledge that there was any legal impediment to their entering into the marriage. The record is equally clear that after the impediment to their marriage was removed Mr. Fitzgibbons held Mrs. Fitzgibbons out to the world as being his wife. After that event he addressed her as his wife in at least 50 letters and signed himself as her husband. Under conditions like these it must be said that the authorities are not agreed. The precise question, has not been presented and passed upon by this court. There is an interesting discussion of the issue of marriage or no marriage in the case of Bechtel v. Barton, 147 Mich. 318 (110 N. W. 935). The nearest case in point to the one before us is Barker v. Valentine, 125 Mich. 336 (84 N. W. 297, 51 L. R. A. 787, 84 Am. St. Rep. 578), in which language is used in the opinion which the trial judge thought justified him in giving the charge he did. It may be true that the language used in the opinion was not necessary to the disposition of the case, but it was fully justified by the authorities cited on pages 342 and 343 of the opinion.
Is it necessary, in the interest of public policy, that when, women enter into the marriage relation and continue it in the full belief that they are lawfully wedded wives, and bear children to their husbands in the full belief that those children have a right to bear his name, and the relation continues after the legal impediment is removed, the woman all the time believing she is a lawful wife, and the man holding her out as such, that she should be characterized as though she was a harlot, and had knowingly entered into meretricious relations ? Can it be urged as in furtherance of good morals that children born under such circumstances may be truthfully characterized as-' illegitimates ? An affirmative answer to these questions shocks one’s sense of justice.
This view has been taken by very respectable courts. The case of In re Wells’ Estate, 123 App. Div. 79 (108 N. Y. 164), is directly in point. In the opinion occurs the following:
“ In the case of Rose v. Clark, 8 Paige (N. Y.), 582, Chancellor Walworth uses this language:
“ ‘After all that had transpired previous to the death of the intestate (in this ease Arthur Wells), I think he would have been precluded from denying that she (the appellant) was his wife. * * * And if the evidence was sufficient to raise the presumption of a legal marriage as to him, in his lifetime, it must neoessarily be sufficient to entitle her representative to the widow’s portion of the estate, under the statute of distributions.’
“ It is hardly conceivable that in the case at bar Arthur Wells, if living, would be heard to deny that the appellant was his'lawful wife. Expression was given to the same principle in the case of Townsend v. Van Buskirk, 33 Misc. Rep. 287 (68 N. Y. Supp. 512), in an opinion written by Mr. Justice Maddox. The justice said:
“ ‘ There is to my mind a well-defined distinction between illicit relations, forbidden because of an undisclosed disability on the part of one of the parties thereto, and such relations as are mutually meretricious, involving on the part of the woman knowledge that its character is not, and is not intended to be, matrimonial, but of a wanton and lustful nature. * * *
“ ‘ There can be no other conclusion, from all the evidence in the case, that she and Townsend desired marriage, that that was their intention, and consequently “their cohabitation, thus matrimonially meant,” made “them husband and wife from the moment when the disability ” on his part was removed, and it was immaterial whether he knew of that removal, * * * the fact being that it was removed, and their consent to the matrimonial relation may be inferred from their acts and conduct.’
“See, also, Maynard v. Hill, 125 U. S. 190 (8 Sup. Ct. 723), where marriage is defined to be—
‘“Something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend, not upon their agreement, but upon the law, statutory or common.’
“In the case of Eaton v. Eaton, 66 Neb. 676 (92 N. W. 995, 60 L. R. A. 605), the same question was considered, and the court said:
“‘Another question to be determined is the legal effect of the cohabitation of the parties after the impediment to their marriage had been removed. In this State the only thing essential to a marriage is the consent of parties capable of contracting. * * * If the parties live together and intend to sustain toward each other the relation of husband and wife, they are, in the absence of any impediment fatal to that relationship, legally married.’
“See, also, State v. Worthingham, 23 Minn. 528.
“The position taken upon this question by the Illinois courts is illustrated in the cases of Cartwright v. McGown, 121 Ill. 388 (12 N. E. 737, 2 Am. St. Rep. 105); Robinson v. Ruprecht, 191 Ill. 424 (61 N. E. 631); Manning v. Spruck, 199 Ill. 447 (65 N. E. 342). See, also, Stein v. Stein, 66 Ill. App. 526.
“ Many other decisions rendered by the highest courts of other States might be cited to like effect. It seems to me, in view of the decisions and authorities which have been referred to, that the rule ought to be that where one person is free to enter into the matrimonial relation and does so in good faith, but the other party is incapable of entering into such relation because of a former wife or husband living, or other impediment, when such impediment is removed, if the parties continue matrimonial cohabitation, continue to introduce and recognize each other as husband and wife, and are so recognized by their relatives, friends, and by society, it ought to be held that from such moment they are actually husband and wife, and that under such circumstances it is of no importance that a formal agreement to live together as husband and wife was not entered into, or that either did not know that the impediment to such an agreement had been removed, when, in fact, it had been so removed, and both parties were competent to enter into the matrimonial state.”
In Eaton v. Eaton, supra, it appeared that the parties were married March 21, 1899; that plaintiff, Harriet M. Eaton, obtained a decree of divorce from Enis Goff in Johnson county, December 2, 1898; that said decree of divorce was obtained without the knowledge of Eli Eaton; that the parties to this suit lived together until November 30, 1899; that the decree of divorce from Enis Goff, the former husband of plaintiff, was obtained less than six months prior to the marriage of plaintiff and defendant; that such marriage was in violation of law and a nullity; and that defendant had no knowledge of the time when the prior divorce was procured until just prior to the commencement of this action. The marriage between plaintiff and defendant was adjudged to be null and void.
In reversing this decree the court used the following language:
“Another question to be determined is the legal effect of the cohabitation of the parties after the impediment to their marriage had been removed. In this State the only thing essential to a marriage is the consent of parties capable of contracting. Bailey v. State, 36 Neb. 808 (55 N. W. 241); Gibson v. Gibson, 24 Neb. 394 (39 N. W. 450). Even a license is not indispensable. Haggin v. Haggin, 35 Neb. 375 (53 N. W. 209). If the parties live together and intend to sustain toward each other the relation of husband and wife, they are, in the absence of any impediment fatal to that relationship, legally married. The marriage between the plaintiff and defendant was an attempt made in good faith to form a legal union. Both intended to live in wedlock. In the absence of an impediment to the marriage no ceremony would have been required; the mutual consent of the parties would havebeen sufficient. When the impediment was removed, why may not consent be inferred from continued cohabitation? This exact question arose in the House of Lords in the case of De Thoren v. Attorney General, reported in L. R. 1 App. Cas. 686, decided in 1876. The question turned upon the legitimacy of certain children born to a man and woman who were married in Scotland, going through a public ceremony in a church, believing the marriage a valid one. The man, however, had been divorced, and the time for appeal from the decree at nisi prius had not expired at the time of the public marriage. In that case the contention was that the inference of marriage was rebutted, because the parties had commenced living together in pursuance of an invalid marriage, and that the consent deducible from cohabitation must be referred to the ineffectual ceremony. But it was there decided that—
‘“It must be inferred that the matrimonial consent was inter changed as soon as the parties were enabled, by the removal of the impediment, to enter into the contract.’
“ And further:
‘“The ceremony which took place, although invalid, was undoubtedly a consent by the parties to live together as husband and wife. And their subsequent cohabitation was proof of continued consent.’
“In the case cited, Lord Chelmsford said:
“ ‘Taking the facts as they are stated in the case, and applying the law to them, the court of session is of opinion that, assuming the ignorance of the parties of the invalidity of the ceremony of marriage, during the whole period of their cohabitation, yet after the removal of the impediment to their marriage and before the birth of their eldest son, they became married persons. I agree entirely with this opinion.’
“In Rose v. Clark, 8 Paige (N. Y.),574, Chancellor Walworth says:
‘“It appears, however, from decisions in our own courts, as well as in England, that a subsequent marriage may be inferred from acts of recognition, continued matrimonial cohabitation, and general reputation, even where the parties originally came together under a void contract of marriage ’
“ Fenton v. Reed, 4 Johns. (N. Y.) 52 (4 Am. Dec. 244); Blanchard v. Lambert, 43 Iowa, 228 (22 Am. Rep. 245). In the recent case of University of Michigan v. McGuckin, 62 Neb. 489 (87 N. W. 180, 57 L. R. A. 917), it was held, although the relations of the parties were originally meretricious, that marriage is a social status, the existence of which may be shown by conduct clearly indicating free consent and mutual intention to live in wedlock. Upon the conceded facts in this, case, our conclusion is that the parties, by continuing to live together in the matrimonial relation, contracted a valid marriage.”
In the case of Robinson v. Ruprecht, Curtis E. Robin. son and Johannah. Schoeninger began living together without pretense of marriage. In April, 1873, they went before a justice of the peace, where a marriage ceremony was performed. Previous to this ceremony both parties had been married. The woman supposed her first hus band was dead, though he in fact was still living. Mr. Robinson had a prior wife living from whom he had not been divorced, as he well knew. The parties continued to live together as husband and wife until the death of Johannah, which occurred in April, 1891. The undivorced wife of Mr. Robinson died in December, 1875. Gottlieb Schoeninger, husband of said Johannah, died in May, 1890. There is nothing to indicate that knowledge of his death came to either of the parties. In disposing of the case the court used the following language:
“ The formal statutory celebration of marriage between said Curtis E., Sr., and said Johannah, indicated that it was their desire their subsequent connection should be considered and understood to be matrimonial. They in good faith, so far as this record discloses, at the time of the marriage, believed that Johannah was a widow and might lawfully marry, but Curtis E., Sr., at least, knew that he then had a living wife and could not lawfully enter into another marriage union. In 1875, about two years after their formal marriage, Mary J., the wife of said Curtis E., Sr., died, and within a few months thereafter said Curtis E., Sr., and Johannah, were advised that said Mary J. was no longer living. They then believed there was no impediment to their legal union as husband and wife. There is no direct proof they subsequently entered into a statutory marriage, but their actions, conduct, their cohabitation and repute, were foreign to and inconsistent with any relation other than that of husband and wife, and there can be no doubt but that after the death of said Mary J. the cohabitation between ■said Curtis E., Sr., and said Johannah, was matrimonial in the intent and belief of both of them. Their actions, life, and repute from henceforth during the remainder of their lives were those of husband and wife. The impediment to that legal relation was removed May 13, 1890, by the death of said Gottlieb, the husband of said Johannah. There is no proof on the question whether they were or were not advised of his death. They believed that he was dead when the ceremony of marriage was performed in McHenry county, in 1873, and so far as the record discloses were never advised to the contrary. Johannah lived nearly a year after the death of Gottlieb and died April 14,1891, and said Curtis E., Sr., survived Johannah but about one year. It was lawful after the death of Gottlieb for them to enter into the marriage relation. They believed their cohabitation was matrimonial, intended it shouM be so, and the presumption of marriage from cohabitation apparently matrimonial became applicable to their relation as husband and wife in aid of the legitimacy of their children. * * * The acts of each toward the other were those of husband and wife, and to said Martha J., Curtis E., Jr., and Bessie L., their children, who were members of the family, they deported themselves as father and mother. Their whole life was inconsistent with any other relation than that of husband and wife. A few months after the death of said Gottlieb Schoeninger, they, with the appellee children, visited the relatives of the husband in Massachusetts. Curtis E.,' Sr., introduced Johannah to his kindred as his wife and the appellee children as their children. He manifested parental pride in the children, was anxious the appellee daughters should exhibit their proficiency in music to his kindred, and declared his satisfaction that through appellee Curtis E., Jr., his name would be perpetuated. A family reunion was held at the house of his brother, Nathan S., at which Curtis E., Sr., Johannah, and the appellee children attended as a family. * * * A pew was rented in the South Park Avenue Church, and Curtis E., Sr., and Johannah attended services together there. Deeds were executed conveying to them property as husband and wife, naming them as such, and they uniformly treated and called each other husband and wife. Curtis E., Sr., applied for letters of administration on the estate of Johannah, declaring under oath therein that he was her widower. He received an engrossed copy of resolutions passed by a lodge of which he was a member, extending sympathy and condolence on the death of his wife, and he brought such copy home to the children. He directed her name, as Johannah Robinson, to be engraved upon the plate of her coffin, and an inscription to be engraved on her monument in which she was declared to be his wife, and caused to be published an obituary notice of her death, naming her as ‘Johannah, beloved wife of C. E. Robinson.’ A common-law marriage was thus established, and such marriages are valid in this State. Port v. Port, 70 Ill. 484; Elzas v. Elzas, 171 Ill. 632 (49 N. E. 717).”
What was done in the case just quoted was no more than was done in the case at bar. Mrs. Fitzgibbons all the time supposed she was the lawful wife of Mr. Fitzgibbons, and he having so represented her to the public and to herself after the legal impediment passed away, it is but scant justice to Mrs. Fitzgibbons and to her child and to the public to hold that she was at the time he died his legal wife.
The judgment should be affirmed.
Bird, C. J., and Blair and Stone, JJ., concurred with Moore, J. | [
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Stone, J.
The plaintiff brought an action in trespass against the defendants to recover damages for an alleged assault committed upon her by the defendant Andrew J. Brandau, while, it was claimed by the plaintiff, he was engaged in the business of the other defendant, the sewing machine company. The plaintiff recovered a substantial verdict and judgment, and the defendant the sewing machine company has brought error.
(1) It claims that the court erred in denying defendant’s motion to direct a verdict for it, because it appeared from the undisputed testimony that Brandau and his companion, were not, at the time of the alleged assault complained of, engaged upon the business of the Singer Sewing Machine Company, but were engaged in the private enterprise of the defendant Brandau.
(2) That the court erred in denying defendant’s motion to direct a verdict for it, because it appeared by the undisputed testimony that at the time of the assault complained of Brandau and his companions were not acting within the scope of their employment by the said sewing machine company.
(3) That the court erred in denying defendant’s motion for a new trial upon the grounds above stated; and also because the verdict was against the weight of evidence.
After reading the record we are unable to agree with defendant’s counsel that the evidence was undisputed upon the points stated in the assignments of error. There was a conflict in the evidence. The plaintiff offered evidence tending to show that on September 6, 1906, before noon, she went to the branch store of the sewing machine company, at the corner of Chene street and Gratiot avenue, Detroit, to have some repairs made on her sewing machine. There she met defendant Brandau, who was managing salesman for the company at that store, and arranged with him to call at her house and get the machine. Brandau went to plaintiff’s house about 1 o’clock p. m. and took away the old machine, saying that he would bring it back right away. The agreed price of repairs was $4.
That same evening, about 6 or 7 o’clock, Brandau came a second time to plaintiff’s house, and brought another machine for her use, while her own machine was being repaired. He told her that he wanted to sell this machine because he and his girl wanted to get married. The machine was apparently second-hand. After some negotiations the plaintiff agreed to buy this machine for $24, paying $15 down and taking from Brandau the following receipt:
“9/6/’06.
“Received from Mrs. O. Zart $15, balance of $9 to be paid September 7, 1906.
“A. J. Brandau, M. S.”
No further writing was made or passed, nor would there be in a cash sale any written contract. Brandau called the third time on September 8th, in the afternoon, to collect the $9 balance. Plaintiff refused to pay until he brought back her old machine. On October 16th Brandau called again with a Mr. Berg, her neighbor, who was an employe of said company. Berg said to the plaintiff:
“Mrs. Zart, you must pay the $9. Mr. Brandau is the agent. You must pay that money to the company.”
She refused to pay, claiming that he had sold her machine. He finally brought back what he claimed was her old machine. She claimed it was not hers.
On October 23d, in the morning, Brandau came to the plaintiff’s house with one Wood, an employéof the sewing machine company. Brandau came in the front door and Wood in the back door. When they came in, Wood said: “I am the boss from Chicago,” and he showed papers, whieh he had in his pocket. He said: “lam boss; I take the machine,” and then he took it. Wood and Brandau then picked up the new machine and started away with it. In the melee which ensued plaintiff claims to have been kicked and injured by Brandau, and brought this action. Plaintiff’s daughter testified that Brandau came with a wagon that day which had on it the name of the Singer Sewing Machine. It was undisputed that Brandau was the manager of the sewing machine company at the time he had the dealings with the plaintiff, and that the letters “M. S.” added to his name meant “Managing Salesman;” that he hired Wood and paid him, and that he had agents under him, and that he had charge of the entire business that came through the store; that there was no one above him there. The defendant Branda,u testified that he took Wood along to get the money or the machine. That if a machine was not paid for, he looked after taking it back or seeing that the company’s rights were protected. That was in his line of business.
On the part of the defendant it was claimed, and it gave evidence tending to show, that the machine which had been sold to the plaintiff, was received at appellant’s store on March 30, 1906; that it was on trial at the house of an Italian on Rivard street, where a fire occurred on May 6, 1906; that the machine became so smoked and burned by the fire as to be of no further value to appellant; that appellant collected the insurance thereon, dropped the machine from stock, and gave the store credit therefor; that appellant never sold this machine again, and received no money for it from anybody; that appellant’s books show no sale of any machine to plaintiff, nor any business transaction with her whatever during the months of September and October, 1906; that during 1906 Brandau had built a partition in appellant’s store, and had paid for the repairs personally; that after the machine was damaged and dropped from stock, appellant gave it to Brandau to reimburse him for these repairs, to do whatever he pleased with it; that Brandau had the machine refinished and: overhauled, and took it to his house, where it stood for a ' month or two until he sold it to the plaintiff; that appellant did not know that Brandau had sold this machine to plaintiff, or that any trouble had occurred, until the early part of 1907, when this suit was begun; that Brandau and Wood have standing instructions never to use force to obtain possession of a machine, and, if unable to obtain peaceable possession, to commence replevin proceedings. The appellant contends that the above claims were undisputed, and entitled it to a directed verdict. The record shows that there were many points in dispute.
It does appear that the plaintiff never knew Brandau except as manager of the business of the Singer Sewing Machine Company. She went to the company’s store to do business with the company. She made arrangement with the company’s manager to repair her old machine, and it was taken to the company’s store for repairs. There is no evidence that Brandau ever told her that the machine was his own property, and not that of the company. The testimony is conclusive that Brandau was the manager of the store and business. He had Wood, Berg, and another under him. The supervising agent for the State testified that Brandau looked after the company’s interests and business. He selected and hired the company’s help. If he wanted to discharge a man he could. He had for years been held out in the city directory as manager of the appellant’s business, at the store in question. His authority in that business seems to have been plenary. There is no claim that Brandau and Wood were not under pay, and in the employ of the appellant on this day, and the trouble occurred during business hours. These are a part only of the circumstances which, in our opinion, justified the circuit judge in leaving the questions involved to the jury.
The charge contained the following language:
“ I charge you that the liability of the master does not reach wrongs caused by the carelessness of servants in work not directed by the master, as the business of a third party, of the servant himself, or of the master, which he did not expressly or impliedly direct the servant to perform.
“ I therefore charge you that if you find that at the time of the commission of the alleged assault Brandau and Wood were not engaged upon the business of the Singer Sewing Machine Company, but were engaged in the private enterprise of defendant Brandau, the Singer Sewing Machine Company is not responsible for their acts, and your verdict must be for the defendant Singer Sewing Machine Company. If you find that the acts of Brandau and Wood in committing the alleged assault of which plaintiff complains were not acting within the scope of their employment by the Singer Sewing Machine Company, and that their acts in that connection were not expressly or impliedly authorized by the Singer Sewing Machine Company, then the Singer Sewing Machine Company is not responsible therefor, and your verdict must be for the defendant Singer Sewing Machine Company.
“ I charge you that the fact that the plaintiff believed, or was induced to believe by Brandau that she was having a machine from the Singer Sewing Machine Company, is not alone sufficient to make that defendant liable for the assault, unless you find that the Singer Sewing Machine Company actually owned the machine. The defendant Singer Sewing Machine Company is not liable, unless you find that it actually owned the machine sold by Brandau to plaintiff. * * * There are two methods of proving every proposition that is alleged in a court of justice. One is by direct proof; the other is by circumstantial evidence. By direct proof, where testimony is given, such as was given in this case by Brandau and the other two witnesses — that is direct proof.
“ Now, the other proposition sought to be established, that these men were engaged on the business of the Singer Sewing Machine Company, and were acting within the scope of their employment, is sought to be established by circumstantial evidence. Now if you find that all those circumstances, taken together, in your judgment, in some degree, outweigh the testimony that is opposed to it, and that it establishes the fact sought to. be proven by the plaintiff by a fair preponderance of evidence, then you are entitled to act upon the circumstances, notwithstanding an absolute denial.”
We are of opinion that the case and the charge fall within the doctrine of the case of Canton v. Grinnell, 138 Mich. 590 (101 N. W. 811). The jury had the right to consider the reasonableness of the testimony. They are not bound to believe a witness whose testimony is inconsistent with the circumstances, although there is no other testimony bearing on the same question. If there is anything tending to create distrust in the truthfulness of a witness, the question must be left to the jury. Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508); Michigan Pipe Co. v. Insurance Co., 92 Mich. 482, 488 (52 N. W. 1070, 20 L. R. A. 277); Goppelt v. Burgess, 132 Mich. 28 (92 N. W. 497); Preuschoff v. Brewing Co., 132 Mich. 107 (92 N. W. 945); Abbott v. City of Detroit, 150 Mich. 245 (113 N. W. 1121).
The declarations of an agent, and declarations made in the presence of an agent, at the time of doing an act, within the scope of his authority, and relating to the subject-matter of the act, are evidence, as part of the res gestee. Benedict v. Denton, Walk. Ch. (Mich.) 336; Converse v. Blumrich, 14 Mich. 110 (90 Am. Dec, 230); Butters Salt & Lumber Co. v. Vogel, 135 Mich. 383 (97 N. W. 757).
The case seems to have been properly and carefully submitted to the jury, and a verdict reached which the circuit judge, on a motion for a new trial, refused to disturb. There was sufficient basis for this holding.
The judgment is affirmed.
Bird, O. J., and Ostrander, Hooker, and Blair, JJ., concurred. | [
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Hooker, J.
The plaintiff sued the defendants, who were dealers in agricultural implements, injustice’s court, upon an account between them. Upon the return day, an adjournment of a week was granted upon the application of the defendants, and upon the adjourned day a judgment was rendered, from which the defendants appealed. Later there was a trial of the merits at circuit, after defendants’ special appeal had been overruled, resulting in a verdict and judgment for the plaintiff, and the defendants have again appealed.
A number of assignments of error are relied on, but the questions are comparatively few. We will not therefore discuss each individual assignment separately, but will endeavor to cover them all in our discussion of the questions.
1. Questions Relating to the Special Appeal. The record shows jurisdiction in the justice and therefore the court properly overruled the special appeal. McGraw v. Sturgeon, 29 Mich. 426; Dalton v. Laudahn, 30 Mich. 349; Deitz v. Groesbeck, 32 Mich. 303; Benjamin v. Dodge, 50 Mich. 41 (14 N. W. 675); Stevens v. Harris, 99 Mich. 230 (58 N. W. 230 ). This disposes of all alleged errors committed by the justice.
2. Errors at Circuit. The cause was tried .upon its merits before a jury in the circuit. The issue was made by a declaration and a plea. No bill of particulars was ever filed in the cause. It is admitted that the parties had a settlement in August, 1906, when a statement was made and signed by both. Among the items claimed by plaintiff are three invoices of goods in the July previous to the settlement. The defendants claimed that they should be considered settled; the articles having been furnished before the settlement. This raised the question whether they were included in the statement and settlement. Plaintiff also claimed pay for some old chains and a Hilo sulky plow, while defendants claimed that they were entitled to credit for them because returned. The items in dispute which were left to the jury were: The July items, $63.41; the sulky plow $27.50; the chains $43.20. The verdict was for $90.91 with interest at 5 pqr cent, from August 14, 1906, amounting to $17.81, making a total of $108.72. It is apparent that the plaintiff did not recover for the chains, and the only questions that we need consider must relate to the July items and the plow.
(a) The July Items. The question before the jury as to these items was simply whether these invoices were included in the statement and settlement of August, 1906. Defendants offered some testimony tending to show that they were. Plaintiff offered testimony to the contrary. Defendants’ brief admits that the only question was whether these goods had been paid for. Van Burén testified that they were not in the statement settled, and gave as a reason that they had not been posted in the ledger when the statement was made. This testimony was objected to, but no ground was stated. It is now claimed not to have been the best evidence. The fact was a proper one to prove, and this may have been the best evidence, for the books themselves might not, and probably would not, have shown the dates when the entries were made. At all events, the alleged error should be disregarded, under repeated decisions, the ground of objection not having been stated.
It is claimed that plaintiff was allowed to prove the various items included in the settlement, and that this was error for the reason that they were not included in the bill of particulars. Counsel admit that there was no bill of particulars, unless an affidavit of items claimed, filed and served with the summons, is to be treated as one. It is enough to say that'the defendant brought this question into the case by claiming a settlement of the July items. That made it proper for plaintiff to prove what was and what was not included in the statement and settlement. The court also held that an earlier settlement than that of August, 1906, was immaterial, and we do not discover anything in the record that indicates error in this.
(6) The Plow. The statement and settlement gave defendant a credit for the plow. In the cross-examination of plaintiff’s witness he testified:
“Smith sent the chains and the plow to the company in December. Smith paid the company everything except that $43.20 for the chains, and the $27.50 for the plow, and those three July items.
“Q. And that is all the dispute is about, isn’t it ?
“A. That is all there is.”
Defendant J. L. Smith testified:
“Q. Now you may state what papers Mr. Van Burén had at that settlement of August 14, 1906.
“A. He had a statement of the entire account for the year, and I looked it over and took him in the office with me. We went over it together, took our-invoices; and they agreed exactly, each item. These invoices here were in the statement; we checked them up. I think you will find the check marks on those originals right there and he said everything was all right, and we settled up in full to date everything, and with the exception of $27.50 that was left out on the plow; that was to be fixed up and then that was to be paid for. We talked that up thoroughly.
“Mr. David Stockdale: I will object to anything said about the plow.
“The Court: Well, that is talk; that would be permissible.
“A. (continuing) Talked in that settlement; he was to fix the plow.
“ The Court: It would be admissible, what was said in that settlement.
“Q. Now just state what he said.
“A. He was to fix the plow and I would send him a check and he said he didn’t want to have any reflections cast on him and I said ‘ I will write a letter to cover that,’ and I said, ‘ Give me your word you will fix it and I will give you my word I will send the check.’
“Mr. John B. Stockdale: I move to strike out the testimony of this witness relative to that plow, because the matter at that time was reduced to writing and signed by Mr. Smith, and that is the part that governs here, as we claim, not what talk he had with Mr. Van Burea; what they got in writing.
“ The Witness: If your honor please, if I tell the conversation—
“Mr. John B. Stockdale (interrupting): Just a moment now.
“ The Witness (continuing): I won’t deviate a bit, from it.
“ The Court: I think that any statement that was not in writing would be inadmissible here, changing the terms of the writing. Any outside talk that they had would be contrary not only to the general rule, but would be contrary to their contract, if they ever had a contract of any kind.
“Mr. Hoffman: We save an exception.
“ Mr. Anderson: I always understood there was a rule that you could show the true consideration for a settlement of a contract.
“ The Court: Well, there was consideration enough for writing what he did write. Well, let it stand.
“On August 14, 1906, the date we settled, Van Burén brought a statement of the account, and to the best of my recollection the three items in July, ’06, which are in dispute were in that statement. I didn’t have the statement in my hand. I do not remember whether he left a copy of this statement of account that he brought with him with me. This statement was a different paper than the settlement of account which he made out while there. He read off the items from this statement of account, and I checked my invoices from his reading.”
Cross-examination:
“ I testified on the former trial that those three items in July, $37.47, $16.44, and $19.50 — I understand there were four items bunched in three — were all settled for in this settlement, everything cleaned up to August 14th. I had ■ my invoices there and they agreed exactly with his statement. Our settlement was very pleasant; just Hilo plow that had not been fixed was the only difficulty.”
Identifies settlement sheet and says a copy of it was left with him.
The evidence shows that the defendants settled and were credited for this plow. His counsel contend that this was upon condition that it should be repaired. Van Burén, testified that he gave him the credit as a disputed item, and took a letter from defendants to plaintiff as follows :
“ Gentlemen: J. D. Van Burén, your representative, called on us today and we congratulate you on having so competent a man and one who seems to be very fair in settlement on both sides, and as we have a Hilo plow that has cost us a good deal of time in trying to get settlement we think that is all we should lose, inasmuch as we are not to blame for this tool not doing business properly. Our customer claims he couldn’t plow even where tall stubble was without clogging; the clogging being caused by lever holding lifting frame. Now, Mr. Van Burén does not feel like taking the liberty in making settlement for this plow to be returned. So I make a proposition to settle as follows: To settle in full, except $27.50 for Hilo plow we have on hand; has been used and could not get a settlement as stated above. We agree if this settlement is not satisfactory the Rock Island Plow Company is to notify us and we will remit check for same. Your will is our pleasure in this matter. We do not cast any shade on Mr. Van Burén, as we believe that he is working for the benefit of the Rock Island Plow Company in every ■ way.”
The reply was:
“ J. L. Smith & Son,
“ Wayland, Mich.
“ Gentlemen: Referring to the settlement of August 14th of your season’s account, we have decided to accept the settlement with the exception of the conditional credit of $27.50 for a Hilo sulky plow you mention as on hand, and the 24 hay loader chains, $43.20, to return. This credit for hay loader chains has been carried in your account since Mr. Woodward’s settlement of December 21, 1904, which settlement we accepted at the time as a final adjustment between us of the matters in question. We pass the allowance of extending the time on goods sold to January 15th, conditional on prompt remittance for the $27.50, and shipment of the chains or remittance for whatever you are short on returning. As soon as we receive a remittance for the $27.50 and an accounting of the chains — you should see that these are shipped at once, sending us the bill of lading so that we can trace credit to your account — we will enter the settlement on our boobs. Thanking you for your prompt attention and trusting that the coming season will show a handsome increase in the sales of our goods, we remain,
“Yours truly,
“Rock Island Plow Company.”
The question was fairly submitted to the jury, and they found for plaintiff. We do not see that defendant was injured by the exclusion of evidence, the remarks of counsel, or the charge of the court. We cannot interfere with the order of the circuit court in relation to costs.
The judgment is affirmed.
Ostrander, Moore, Blair, and Stone, JJ., concurred. | [
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Moore, J.
The defendant is engaged in the business of mining gypsum and preparing and placing its various products upon the market. The plaintiff has been at work in the mine more than 25 years. At the time he was injured he had been a breaker for more than six months. While breaking and loading gypsum into a car, a piece broke off from a large rock and fell .upon his leg and ankle, injuring them very severely. It is his claim that the defendant was negligent in not having the place where plaintiff was at work properly lighted so he could have seen the crack in the rock, and thus have avoided the accident. At the conclusion of the evidence on the part of the plaintiff, the circuit judge directed a verdict for the defendant. The case is brought here by writ of error.
It is insisted upon the part of the plaintiff that the doctrine of a safe place to work applies to this case, and that the case should have been submitted to the jury. We quote from the brief of counsel:
“The case of Fox v. Iron Co., 89 Mich. 387 (50 N. W. 872), is important in this case in two ways. The court says:
“ ‘ The practice of requesting the court to direct a verdict at the close of the plaintiff’s case is not one to be commended, as the circuit court would rarely, and never, except in a very plain case which was free from all doubt, grant such motion. * * * The motion should not be granted where there are any inferences of fact to be drawn by a jury from the testimony, and the motion was properly overruled in this case.’
“ This case is also important, because it lays down the principle upon which we also rely that an employer cannot delegate a duty, so as to escape responsibility, which properly belongs to the employer, and on page 393 of this case this duty is discussed in the following language:
“ ■ “The true rule, I apprehend, is to hold the corporation liable, for negligence or want of proper care, in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent, intrusted with their performance. As to such, acts, the agent occupies the place of the corporation, and the latter * * * is liable for the manner in which they are performed.” ’ Flike v. Railroad Co., 58 N. Y. 549.
“ ‘And hence a true test is—
“ ‘ “Whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master.” McKinney on Fellow Servants, p. 54.
“ ‘Applying this test to the facts of this case, there can be no doubt that Marshall was charged with the duty of keeping the hoisting apparatus in repair, and that such duty properly belonged to the corporation to perform. He was not, therefore, merely a fellow-servant with plaintiff.’ ”
Many other cases are cited, and particularly the case of Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591), which counsel says is conclusive of this case.
As bearing upon the question of whether the case should have been submitted to the jury, counsel regard the following testimony as important. We again quote from the brief:
“And the witness Veecncki testifies that from his knowledge of the thickness of this rock that fell and the strength of gypsum rock and the location of the rock on the ground and piled near the big rock that he would say that it must have been cracked at the point it finally broke off before it fell. The testimony shows that plaintiff examined the rock as well as he could in the light furnished, and that it appeared solid before he started to clean up close to it, and that no crack was visible where it after-wards broke.
“The testimony of the plaintiff is that all the cracks in dry gypsum rock like the rock in question which are made by dynamite blasting are visible in a good light, because the force of the gas and the explosion separates the portions of the rock and forces small particles into the cracks in such a manner that the rock does not settle together again so closely but what the cracks can be seen in a good light. Plaintiff further says:
“ ‘ When the lights were near we could see the cracks in the stone, but one could not see them that night, because the lights were far away.’”
It is the contention of defendant that the doctrine of a safe place to work does not apply at all, for the reason that the work which plaintiff was doing was that of mining, and that the work itself made the place, which was continually changing.
The case made by the plaintiff is, in substance, as follows: There is a main passageway in the mine upon which there is a tram railway for the cars, and in which the main electric wires are placed. From each side of the main passageway rooms or benches are at right angles to the main passageway. The ceiling is supported by leaving pillars of the original gypsum rock. As the lateral benches, or passageways at right angles to the main passageway progress away from the main track, branch car tracks are laid in the side benches or passageways, connecting with the main track. The lateral benches, or passageways, are lighted by electric lights attached to cables. The cables are attached to the feed wires in the main passageway by plugs, and are extended along the ceiling of the lateral passageways, or benches, as the work progresses. These cables are about 50 feet long, and are attached to the ceiling of the side passageways by drilling a hole in the ceiling and driving a wooden plug into this hole. Hooks are screwed into these wooden plugs, and the cables are supported by these hooks. The most advanced portion of the work is lighted by two or three incandescent lamps fastended to a small board, on the back of which is a hook or ring which loops over the hook in the ceiling. The board containing the incandescent bulbs is so arranged that it can be unhooked and carried back and placed behind a pillar during a blast and later hung back upon the hook. At the time plaintiff was injured the side passage on which he was working had been extended about 60 feet from the main passageway. It is the duty of the drillers to bore the holes, for the powder or dynamite. After the drillers, come the blasters, who load the holes and fire the blasts during the intermission between shifts, either in the morning or evening. After the blasters come the breakers, who with the aid of a point (which they use as a wedge), and a hammer, break up the larger pieces into small pieces suitable for the crushers, and load them on the tram cars.
Plaintiff testified, in part, as follows:
“Q. Will you tell what the usual practice was in the mine about the blasters working on a bench one night and the loaders coming the next night to clean up after them ?
“A. When we came to work the blasting had already been done, some drilling was done, and sometimes the loaders and drillers were working on the same bench at the same time. The blasting was always done after one shift had gone away and before the other came. This loading and blasting was done by a loader man. This loader man fired the blasts. * * * The Friday night on which I was hurt was the first night that we had been at work on this bench after the last blast had been fired off, and no rock from the last blast had been taken out before our craw went to work to break rock the night I was hurt. It was smoky in the room when we went to work that night. They had electric lights, but they were dusty and gave poor light, and with respect to the rock part on which we were going to work the light was quite a bit behind it. I don’t know how many feet; I could not see well to do my work with the lights where they were. That night I complained about the poor lights. In the first place, I spoke to the foreman, and the foreman told me to speak to Fronczak. This was when we were about to start to work. The foreman’s name is Hoffman. He walked around the benches. * * * I told Hoffman right away after I went to work about the lights, the night on which I was hurt, and I told him the light was too far away and that it was not right. Hoffman said he would' send Fronczak down. After that I went to work. I saw Fronczak after that about 7 o’clock, and told him to fix the lights, and he said he didn’t have time; he had to fix the track. Fronczak said he would fix the lights when he finished the other work.
Two cars had been loaded and been sent away and one more loaded that night before I was hurt. The loaded car was in the middle of the bench at the time. It was about eight feet away from the pile of rock. The top of the pile of rock on the loaded car was about two fe6t higher than my head, and the light was behind this loaded car. The lights in the mine were put up in the center of the bench, hanging from the ceiling, and there were three globes, not very large globes, about the size of the one on the table. * * * After a car was loaded, and before breaking more stone, we were instructed to see whether the rocks were solid, and then we had to throw back the dirt, or finer stuff, so that we would have the floor of the bench clear and clean. We had to throw it against the wall on the right-hand side. Every time we would load up a car there would be a lot of dirt left, and we had to throw that away first before loading another car. At the time I was hurt I was throwing dirt away with a short-handled shovel. Before I started to shovel away this dirt from in front of this rock, we looked to see whether the stone or the rock was solid. I could not see any cracks in the rock where it afterwards broke. The light was dirty and it was far away. I couldn’t see. * * * The loader, Wiktorowski, blasted out this short hole in this large rock. After he had fired the hole, he said it was all ready. The shape of the large rock, part of which afterwards fell upon me, was in the shape of the clay model. I was in front of the rock on the right-hand side. I can’t remember very well what happened. When I was hurt I was taken away. I imagine that the piece fell off the top here and slipped onto me when I was throwing dirt. The top of this rock which fell as I stood was about four feet above my head and was about five feat above the level of the place where I was standing. The middle plane of the rock was about four feet from the ground upon which I was standing. * * * When we looked at the rock to see if it was safe before we shoveled up the dirt, we did not see any crack in the rock where it afterwards broke j we thought it was solid all over. When the rock struck me it scratched me and scraped me and cut two of my veins or blood vessels. The doctor says I had a broken rib, the flesh was scraped off of my injured leg clear to the bone, and the rock cut off the ankle bone.”
We have already quoted the rest of his testimony which is important, and also the important part of the testimony of Mr. Veecncki. This testimony makes it very clear that plaintiff was engaged in the work of actual mining, following up the work of the drillers and blasters by removing the result of- their work, namely, the dirt and the rock which was broken down by the blast.
In the case of Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591), which counsel for appellant regard as conclusive, Justice Stone said, among other things, the following:
" The lighting of this passageway or thoroughfare of the mine far distant from the working places of most of those who passed through them — it being always dark in the mine — was just as necessary for the safety of the men as it was to have the walls and floors in a proper condition. * * * It was a thing which it was necessary to keep permanently in condition.”
Mr. Justice Stone then expressly recognizes the distinction between conditions that are permanent and those that are constantly shifting, in the following language:
"Unlike the case of Livingstone v. Plate Glass Co., 146 Mich. 236 (109 N. W. 431), here the place furnished was a permanent place of work, and not one where the conditions were constantly changing.”
So far as this case is applicable to the one we are considering, it sustains the contention of defendant.
There are numerous decisions of this court upon the proposition that under similar circumstances to the case before us, the doctrine of safe place to work does not apply. See Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505); Landowski v. Chapoton, 137 Mich. 429 (100 N. W. 564); Livingstone v. Plate Glass Co., supra; Karppinen v. Mining Co., 154 Mich. 528 (118 N. W. 1118).
It is not necessary to discuss the other contentions of counsel. We think a verdict was properly directed.
Judgment is affirmed.
Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred. | [
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Bird, C. J.
Plaintiff sued defendant in assumpsit to recover on an account which he claims was incurred by defendant between the years 1870 and 1886. In compliance with a demand, plaintiff filed a bill of particulars showing 25 separate items, aggregating $3,065.85. It was claimed by plaintiff that defendant made various payments upon the account from 1870 to 1886. Since 1883 defendant has resided outside of the State.
Defendant denied that he had ever received any money from plaintiff. He admitted that, while attending medical college in Montreal, he had received money from home, but claimed it was advanced to him by his mother, who was then the wife of plaintiff. This money he claimed to have repaid. In addition to his general denial and notice of set-off, he relied upon the statute of limitations. Plaintiff recovered a judgment, and defendant assigns error. (This case was before this court on a former occasion, and the opinion will be found reported in 151 Mich. 590 [115 N. W. 737]).
It is assigned as error that plaintiff’s counsel was permitted to read to plaintiff while on the witness stand certain items in the bill of particulars, and to ask leading questions thereon to refresh his recollection. It appears from the record that the bill of particulars had been prepared from memoranda furnished by the plaintiff to his counsel, and some of them were in the handwriting of plaintiff. Plaintiff’s eyesight was so poor that he. could not read, but could identify, his memoranda. The plaintiff while testifying could not recall the items nor the dates of them without prompting. Under these circumstances, the court permitted counsel to read to plaintiff certain items from the bill of particulars, and to ask some leading questions to refresh his recollection. It is within the discretion of the trial judge to permit leading questions to be asked of a witness (Webb v. Feathers’ Estate, 119 Mich. 475 [78 N. W. 550]), and, under the circumstances as they existed here, we see nothing which would justify us in saying that the trial judge abused that discretion.
Defendant insists that the trial court was in error when he permitted the plaintiff to testify to certain payments which he claims were made by defendant, because they were not shown by plaintiff’s bill of particulars. This raises the question as to whether the plaintiff’s bill of particulars must show credit as well as debit items. It is not our understanding that the rule requires plaintiff’s bill of particulars to show credit items. Ryckman v. Haight, 15 Johns. (N. Y.) 222. In the case before us defendant demanded a bill of particulars of plaintiff’s claim for which he sought a recovery. He did not demand a bill of particulars of his own set-off or payment, and we can see no reason why more should be required or furnished than was demanded. The defendant is supposed to be informed of the state of his own account and of the payments which he has made. In cases like the present one, where credits are sought to be shown, in order to rescue the claim from the operation of the statute of limitations, instances may arise where the defendant is surprised and unable to go forward for want of preparation, but in such cases application can be made to the trial court for time in which to prepare to meet the unexpected claim.
Another error relied upon by defendant’s counsel is that his right of cross-examination was unduly abridged by the trial court. Plaintiff’s counsel called the defendant as a witness to show that he had resided outside of the State since the year 1883. He examined him upon no other subject. Defendant’s counsel then claimed the right to cross-examine the witness upon that and other subjects. Plaintiff’s counsel objected to this, and insisted that the rule of cross-examination would not permit him to cross-examine on any other subject than the one on which the witness was examined in chief. The court held this to be the rule. We think the court was in error in this ruling. The plaintiff made the defendant his witness, and he was sworn and testified in his behalf. This gave defendant’s counsel the right, under the well-settled rule in Michigan, to cross-examine him upon any material question in the case. People v. Barker, 60 Mich. 277 (27 N. W. 539, 1 Am. St. Rep. 501); Ireland v. Railroad Co., 79 Mich. 163 (44 N. W. 426); Hemminger v. Assurance Co., 95 Mich. 355 (54 N. W. 949). And the fact that the witness was one of the parties to the case rather than a third party would not create an exception to the rule. New York Iron Mine v. Negaunee Bank, 39 Mich. 644. After the ruling of the court, defendant took the witness stand and testified in his own behalf, and went into the issues fully, and, for aught the record shows, he testified to everything that he would have testified to if he had been cross-examined. Under these circumstances, we think the error was waived. Hemminger v. Assurance Co., supra. The case of Blackwood v. Brown, 32 Mich. 104, is cited by appellee to sustain the ruling. A like question was raised in that case, but some language is made use of in the opinion which indicates that the ruling of the trial court was sustained for other reasons, namely, the stage of the trial at which the cross-examination was attempted and the lack of relevancy of the direct questions to the matters in issue. But, if that case can be said» to be at variance with the rule laid down in the Barker Case, it must give way before the more liberal rule declared in that case.
The judgment of the trial court is affirmed.
Ostrander, McAlvay, and Blair, JJ., concurred. | [
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Ostrander, J.
The bill in this cause was filed for a divorce , from the bonds of matrimony, and it is alleged therein that the parties were married February 21, 1898, in the city of Detroit, where they have since resided, and where they lived and cohabited together as husband and wife until September 16, 1908. One child was born, which died. The charge is that defendant has been guilty of extreme cruelty, which began soon after the marriage, and the particulars are that defendant began to “nag” and annoy complainant by her exhibitions of jealousy of women who had occasion to go to complainant’s drug store to make purchases, and would make remarks which gave offense to customers who happened to be in the store; that her jealousy had no foundation in fact, had a tendency to drive away business, and did actually cause complainant to lose customers; that during the summer of 190? complainant threatened to procure a divorce from defendant; and that thereupon the defendant, who has a most violent temper, “raised a chair and threatened to brain your orator, and he believes he would have suffered great bodily harm had he not succeeded in grasping said chair as the defendant was about to strike him over the head with it.” He also charges that defendant has, in the company of men, frequented cafés and other places where intoxicating liquors are sold, has remained out until late hours at night, and on one occasion remained away from home all night without informing complainant of her intention to do so or offering any satisfactory explanation of her absence; that during the winter of 1907-08 she refused to prepare breakfast for complainant. Defendant answered, denying each and every of these charges of cruelty. There was a replication, a hearing in open court, and a decree dismissing the bill of complaint.
The testimony discloses that the parties to this suit were acquainted with each other for two years before they were married, during a portion of which time complainant boarded at defendant’s home. A short time before the marriage, complainant, who is a druggist, failed in business and was adjudged a bankrupt. He began business again with very small capital, and for some time his wife was the reputed owner of his stock of goods. Defendant was a milliner and continued her business for some time after the marriage. They have always lived in rented apartments, and he has done and is doing business in a rented store. Doing a small business, and obliged to keep his store open evenings, complainant has not spent much time in the society of his wife and has not often visited with her places of public or of private entertainment. The defendant testified that he neglected her during practically all of their married life. There is testimony tending to prove occurrences which amounted to some interference with and loss to his business; but whether her conduct was the result of jealousy or was a display of temper is not so clear. It is proved that she called him, upon occasion, such names as “ a dirty dog,” “a street angel,” and “a house devil.” The conduct which finally determined complainant to separate from her was her association with other men. It is not claimed that she was guilty of any crime; but it is proved that upon one occasion, shortly before the separation, at 9 o’clock in the evening, she was seen by her husband with her sister, another woman, and some men, who were strangers to the husband, coming from a café where liquors were served and where the party had gone, not to eat, but to drink. He, also, at about the same time, saw her riding in an automobile with men, or a man and other women. She admits that upon one occasion — he says it was four or five years after the marriage, she that it was before the marriage — she was at a roadhouse on Jefferson avenue with another woman and two men, “drummers,” drinking, and that the men became so familiar in their behavior that she was obliged to escape from them. She admits that after the bill was filed in this cause she passed him on the street, and he stepped one side without speaking to her, when she said: “ Oh, Gus! How can you be such a dirty dog ? ” There was an occasion when she remained away from home all night, without notifying her husband of her intention to do so, returning about 10 o’clock in the morning. There was then a quarrel. She offers an explanation, it is true; but her husband says it is not the one she offered at the time. She does not deny that during a portion, at least, of two winters, she refused- to get breakfast for complainant, and offers no excuse for not doing so. There have been frequent quarrels.
However innocent defendant’s behavior may have been, such conduct is not calculated to inspire the confidence of the husband or to insure domestic tranquility. The epithets she bestowed upon him are not approved expressions of respect or of affection. Such expressions made to him and such conduct away from him are-calculated to induce the feeling that she cared nothing for him and but little for her reputation, to excite his distrust and anxiety. Self-respecting men do not submit to such treatment unless they are by circumstances obliged to do so. The law does not compel them. There are no children to be considered here. No question of permanent alimony is involved. We are of opinion that complainant is entitled to a divorce upon the ground of extreme cruelty. The decree below is reversed, and one will be entered in this -.court dissolving the marriage.
Defendant’s motion in this court for an allowance for expenses of the appeal has been considered. Costs of defendant were taxed below at $93.90, including a solicitor’s fee of $30. After the bill was dismissed, defendant obtained an order, at the circuit, that complainant pay to her $3 a week during the pendency of the appeal and a solicitor’s fee of $25. It is our understanding that this order for solicitor’s fee was made in view of the requirement that defendant must be to the expense of preparing a brief on appeal. These sums have been paid, the allowance from and after November 29, 1909. Defendant lives in an eight-room house, the rent of which is $18 a month, and has installed a telephone, a convenience the parties did not have when they lived together. She has possession of all the household furniture. Complainant pays for his room rent $1.50 a week. He does business in a one-story wooden structure situated some three miles from the business center of Detroit, and he is paid $300 per annum as postmaster. The figures are not before us; but it is said that in the court below the complainant exhibited a statement of his resources, after which the order for temporary alimony was entered.
An order may be entered that appellant pay to appellee the sum of $50 in addition to the allowance made by the circuit court.
Bird, C. J., and Hooker, Blair, and Stone, JJ., concurred. | [
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Brooke, J.
Plaintiff and defendant are brother and sister. In March, 1919, defendant opened a small restaurant in the city of Howell, hiring plaintiff to assist him as cook at $14 per week. This arrangement continued until May 27, 1919, when defendant visited Detroit for a few days, leaving plaintiff in charge of the restaurant. He stayed until June 9th, but on his return plaintiff refused to deliver him pos session of the restaurant and he did not recover the same until June 19th. A serious dispute had arisen between the parties prior to the departure of the defendant for Detroit because of the fact that defendant introduced into the restaurant a woman (whom he afterwards married) to whom plaintiff seriously objected. It was the claim of the plaintiff that, on leaving for Detroit, her brother (defendant) turned the restaurant over to her to make out of it what she could. This the brother denied most emphatically. She finally brought suit in justice’s court, claiming damages in the sum of $233, made up as follows: $100 for borrowed money; $53 for unpaid wages; $50 for supplies furnished by her to the restaurant prior to the defendant’s departure; $30, being one-half of one month’s rent. Defendant admitted his liability for the first two items and did not dispute his liability as to the third item, but claimed the supplies were worth probably not more than $30. As to the last item (of $30), the money was paid out of receipts taken, in by the plaintiff during his absence in Detroit. Defendant filed a counterclaim against plaintiff, consisting of two items: $255, being the amount of the profits during the 10 days of his absence (placed in the bank in her own name by the plaintiff); and $170, being the amount of his alleged lost profits from June 9th to June 19th, during which time plaintiff excluded him from possession of the restaurant. Judgment followed in justice’s court for defendant upon his set-off in the sum of $118.60.
Upon appeal to the circuit, the case was submitted to a jury under the conflicting claims of the parties and a verdict was rendered in favor of defendant upon his set-off in the sum of $200. It is apparent from an examination of the several bills of particulars filed by the parties that the jury allowed to the plaintiff practically her entire claim and allowed to defendant practically his entire claim of set-off, and certified the difference in his favor. Motion was thereafter made for a new trial upon various grounds, which was denied on condition that defendant remit the sum of $50 from the amount of the verdict, which was done.
In this court, the first two errors assigned deal with the admission and exclusion of testimony. Respecting these assignments, it is sufficient to say that we find no reversible error therein.
The third, fourth, fifth,. sixth and seventh assignments deal with the charge of the court. Special stress is laid upon the sixth, which deals with the following excerpts from the charge:
“I further charge you that plaintiff could not recover for these provisions furnished by her to defendant to be used at the restaurant, unless plaintiff expected pay for such provisions and. intended to charge for them and defendant expected to pay for them at the time they were furnished. On the other hand, if these provisions were furnished without expectation of pay on the part of plaintiff, and without expectation of paying on the part, of the defendant for the provisions furnished by plaintiff at the time they were furnished, then there is no contract of liability, and plaintiff could not recover for the value of such provisions here.”
This excerpt was preceded by the following:
“It is. not necessary for her to prove an express promise by defendant to pay for them. It is sufficient to bind the defendant to pay for such supplies if he had knowledge that they were furnished him and he acquiesced in such provision being used and made no objection and accepted them and used them in his business there.”
It is contended on behalf of the appellant that the latter instruction was correct and the former incorrect. Taken as a whole, we are disposed to the view that the jury was not misled by that portion of the charge of which complaint is made because, as before stated, it is apparent from the verdict that the plaintiff was allowed her entire claim and that defendant was allowed his entire claim. But, in any event, by reducing the verdict in the sum of $50, which was remitted, the circuit court apparently made allowance for any possible error which, the alleged erroneous instruction might have occasioned.
The remaining assignments are directed to the refusal of the court to grant a new trial. An examination of the record leads us to the conclusion that the determination of the circuit judge that the verdict was not against the weight of the evidence was justified.
The judgment is affirmed.
Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Jansen, J.
In these consolidated appeals, the prosecution appeals by leave granted the circuit court’s order denying its motion to reinstate the obstruction-of-justice charge against defendant Nevin Hughes, as well as the circuit court’s ruling affirming the district court’s dismissal of the obstruction-of-justice charges against defendants Sean Harris and William Little. For the reasons set forth in this opinion, we reverse and remand to the district court for reinstatement of the obstruction-of-justice charges against all three defendants.
i
These appeals arise out of a police-citizen interaction on November 19, 2009, involving Dajuan James Hodges-Lamar and defendants. Defendant Hughes, a Detroit police officer, approached Hodges-Lamar at a Detroit gas station and asked him questions regarding his license, registration, and the presence of drugs in his car. Hughes then opened the door of Hodges-Lamar’s automobile, pulled Hodges-Lamar out by the collar, slammed Hodges-Lamar against the car, and searched him. Defendants Harris and Little, also Detroit police officers, were standing nearby. Hughes pushed Hodges-Lamar toward Harris and Little. Hughes subsequently punched Hodges-Lamar in the throat with an open hand, punched him again, pushed him to the ground, picked him up by the collar several times, slammed him onto the car, and finally pushed him back toward Harris and Little. Hodges-Lamar never alleged that Harris and Little assaulted him.
Defendants arrested Hodges-Lamar and searched his car. Hodges-Lamar received tickets for failure to wear a seatbelt, no proof of registration, and no proof of insurance. Eventually, the tickets were dismissed. Hodges-Lamar sought medical attention and another police officer took his statement at an area hospital.
The Detroit Board of Police Commissioners Office of the Chief Investigator (OCI) investigated the incident and interviewed defendants in July and August 2010. The OCI provided defendants with a standard departmental constitutional-rights form. The fourth paragraph of the form stated: “If I refuse ... to answer questions ... I will be subject to departmental charges which could result in my dismissal from the police department.” The fifth paragraph stated: “If I do answer . .. neither my statements nor any information or evidence which is gained by reason of such statements can be used against me in any subsequent criminal proceeding.” Defendants also received a reservation of rights form, which provided, in relevant part:
It is my further belief that this Statement and the Preliminary Complaint Report will not and cannot be used against me in any subsequent proceedings other than disciplinary proceedings within the confines of the Department itself. For any and all other purposes, I hereby reserve my Constitutional rights to remain silent under the FIFTH and FOURTEENTH AMMENDMENTS [sic] to the UNITED STATES CONSTITUTION, and Article I, Section 17 of the MICHIGAN CONSTITUTION.
Defendants made statements under the threat of dismissal from their jobs. Harris and Little denied that Hughes had any physical contact with Hodges-Lamar, with the exception of a pat-down search. Hughes admitted that he pulled Hodges-Lamar out of the car, but maintained that he did not use any force against Hodges-Lamar.
The investigation was closed. Hodges-Lamar hired an attorney, who ultimately obtained a video recording of the assault and battery from the security camera at the gas station. The video recording was provided to the Detroit Police Department Internal Affairs Section. The prosecution subsequently charged Hughes with felony misconduct in office, MCL 750.505, misdemeanor assault and battery, MCL 750.81, and obstruction of justice, MCL 750.505. The prosecution charged Harris and Little each with one count of obstruction of justice, MCL 750.505. The video recording was played for the district court by stipulation of the parties. The district court dismissed the obstruction-of-justice charges against all three defendants, relying on the Fifth Amendment of the United States Constitution and § 3 of the act concerning the disclosure of certain state- merits by law enforcement officers, MCL 15.393. The circuit court affirmed the district court’s dismissals and declined to reinstate the obstruction-of-justice charges.
ii
The prosecution argues that the district court should have admitted at the preliminary examination defendants’ statements made during the OCI investigation because neither Garrity v New Jersey, 385 US 493; 87 S Ct 616; 17 L Ed 2d 562 (1967), nor MCL 15.393 prohibits the use of an officer’s false denials in a subsequent obstruction-of-justice prosecution. We agree.
A
We review for an abuse of discretion the trial court’s decision whether to admit evidence, but review de novo the trial court’s decision on any preliminary question of law. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). “A trial court abuses its discretion when its decision falls ‘outside the range of principled outcomes.’ ” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010), quoting People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). “A trial court necessarily abuses its discretion when it makes an error of law.” People v Waterstone, 296 Mich App 121, 132; 818 NW2d 432 (2012). “A district court’s ruling that alleged conduct falls within the scope of a criminal law is a question of law that is reviewed de novo . . . .” People v Henderson, 282 Mich App 307, 312; 765 NW2d 619 (2009). We similarly review de novo questions of constitutional law and statutory interpretation. People v Brown, 294 Mich App 377, 389; 811 NW2d 531 (2011).
B
The district court abused its discretion by excluding defendants’ statements under the Fifth Amendment of the United States Constitution.
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” This prohibition “not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ” [People v Wyngaard, 462 Mich 659, 671-672; 614 NW2d 143 (2000), quoting Minnesota v Murphy, 465 US 420, 426; 104 S Ct 1136; 79 L Ed 2d 409 (1984), in turn quoting Lefkowitz v Turley, 414 US 70, 77; 94 S Ct 316; 38 L Ed 2d 274 (1973).]
To invoke the protection of the Fifth Amendment, a witness must only possess a reasonable belief that the evidence could be used against him or her in a criminal prosecution. Maness v Meyers, 419 US 449, 461; 95 S Ct 584; 42 L Ed 2d 574 (1975); People v Bassage, 274 Mich App 321, 324-325; 733 NW2d 398 (2007). “The state constitutional right against self-incrimination is interpreted no differently than the federal right.” Bassage, 274 Mich App at 324.
In Garrity, 385 US at 494, the New Jersey attorney general’s office interviewed police officers about “fixing” traffic tickets. Before the interviews, the attorney general’s office warned the police officers that anything they said might be used against them in subsequent criminal proceedings and that they had the right to refuse to answer. Id. However, they were also warned that if they refused to answer, they would be subject to termination from their positions. Id. The attorney general’s office later used the police officers’ answers to prosecute them for conspiracy to obstruct the administration of the traffic laws. Id. at 495. The United States Supreme Court held that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office . . . .” Id. at 500.
Since its decision in Garrity, the United States Supreme Court has held that the Fifth Amendment does not protect a defendant from a subsequent prosecution for perjury predicated on statements that the defendant made on the stand after being granted immunity from prosecution regarding the underlying crime. See United States v Wong, 431 US 174, 178; 97 S Ct 1823; 52 L Ed 2d 231 (1977) (holding that “the Fifth Amendment privilege [against self-incrimination] does not condone perjury” and that “[i]t grants a privilege to remain silent without risking contempt, but it ‘does not endow the person who testifies with a license to commit perjury’ ”) (citation omitted); see also United States v Apfelbaum, 445 US 115, 117, 131; 100 S Ct 948; 63 L Ed 2d 250 (1980) (holding that “proper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely” and that “neither the immunity statute nor the Fifth Amendment precludes the use of [a defendant’s] immunized testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise applicable rules of evidence”).
Similarly, the United States Court of Appeals for the Sixth Circuit has observed that, as a general rule, “the Fifth Amendment permits the government to use compelled statements obtained during an investigation if the use is limited to a prosecution for collateral crimes such as perjury or obstruction of justice.” McKinley v City of Mansfield, 404 F3d 418, 427 (CA 6, 2005). “This rule applies with equal force when the statements at issue were made pursuant to a grant of Garrity immunity during the course of a public employer’s investigation of its own.” Id. In other words, “Garrity precludes use of public employees’ compelled incriminating statements in a later prosecution for the conduct under investigation. However, Garrity does not preclude use of such statements in prosecutions for the independent crimes of obstructing the public employer’s investigation or making false statements during it.” Id. (citation omitted).
This Court’s precedent similarly instructs that we view a defendant’s false statements as independent chargeable offenses, for which the allegedly false statements are not admitted to prove any underlying charge, but rather to prove the independent offense of lying. See Bassage, 274 Mich App at 325 (noting that “the right against self-incrimination only protects a witness from incriminating himself or herself for crimes already committed”) (emphasis added). See also Lefkowitz, 414 US at 77.
We acknowledge that the case against Hughes differs from the cases against Harris and Little because the focus of the internal investigation was the assault and battery of Hodges-Lamar, which was committed exclusively by Hughes. Hodges-Lamar never accused Harris or Little of any assaultive behavior; Harris and Little were only interviewed as witnesses to Hughes’s misconduct. At the same time, however, all three defendants could have reasonably believed that their statements during the OCI interviews might lead to criminal proceedings against them for various nonassaultive offenses, such as misconduct in office (including nonfea sauce). See Maness, 419 US at 461; Bassage, 274 Mich App at 324-325; see also Waterstone, 296 Mich App at 126. For this reason, the officers’ statements could not be used in any criminal prosecution against them “for crimes already committed,” Bassage, 274 Mich App at 325, such as misconduct in office or assault and battery.
But, as noted previously, the Fifth Amendment did not prohibit the use of defendants’ statements “in prosecutions for the independent crimes of obstructing the public employer’s investigation or making false statements during it.” McKinley, 404 F3d at 427. Nor did the Fifth Amendment entitle defendants to swear falsely. Apfelbaum, 445 US at 117; see also Bassage, 274 Mich App at 326. Thus, there was no Fifth Amendment bar to the admission of defendants’ statements in the criminal proceedings (including the preliminary examination) pertaining to the independent obstruction-of-justice charges against them. See McKinley, 404 F3d at 427.
We recognize that our holding in this regard, as well as the post-Garrify federal caselaw, conflicts with this Court’s decision in People v Allen, 15 Mich App 387, 388; 166 NW2d 664 (1968). In Allen, 15 Mich App at 396, this Court held that “the Fifth and Fourteenth Amendments’ benefits of freedom from coerced waiver of the right to remain silent. . . must be respected,” even in a subsequent perjury prosecution. In Allen, the defendant police officers, who were called to testify before a one-man grand jury about bribery, corruption, vice, and gambling involving the police department, were informed of their right to remain silent. Id. at 389-390. However, each of the defendants stated that he believed that if he invoked his right to remain silent, he would be suspended from the police department. Id. at 391. After being advised of their rights, the defendants were asked whether they had accepted bribes, gifts, or gratuities from bar owners and liquor licensees in the city of Detroit. Id. at 389. The defendants denied that they had received any bribes, gifts, or gratuities. See id. at 389-390. After contrary testimony was received from the bar owners in question, the defendants were charged with perjury for having sworn falsely before the grand jury. Id. The defendants’ grand-jury testimony, including their allegedly false denials, was admitted into evidence at their preliminary examinations. Id. The defendants were bound over for trial on charges of perjury. Id. at 390.
The Allen Court rejected the prosecution’s argument that the principle announced in Garrity should not apply in prosecutions for perjury. Id. at 393-394. The Court held that the Fifth Amendment barred the admission of the defendants’ grand-jury testimony in the subsequent perjury proceedings. Id. The Allen Court noted that the prosecution could not presume that the defendants’ statements were false, and thereby escape the confines of Garrity, because the truth or falsity of a defendant’s statement was ultimately an issue to be determined by the trier of fact in a perjury prosecution. Id. at 393.
Given the intervening developments in federal law, including Apfelbaum, 445 US at 117, and McKinley, 404 F3d at 427, the reasoning of Allen cannot stand. Even assuming that the prosecution treats a defendant’s statements or denials as false from the inception of the investigation, the presumption of innocence remains intact and the prosecution is still required to prove the elements of perjury or obstruction of justice beyond a reasonable doubt. Moreover, the prosecution’s decision to charge the officer with perjury or obstruction .of justice does not run afoul of the Fifth Amendment guarantee because the allegedly false or perjurious statements would be introduced for the limited purpose of proving perjury or obstruction of justice, not other underlying crimes. See McKinley, 404 F3d at 427. Finally, we reiterate that untruths and false denials, such as those provided by defendants in the instant cases, are not protected by the Fifth Amendment. Apfelbaum, 445 US at 117; Wong, 431 US at 178.
We are not bound to follow Allen, which was decided before November 1, 1990. MCR 7.215(J)(1); People v Ford, 262 Mich App 443, 452; 687 NW2d 119 (2004). Indeed, in light of the post-Garrity caselaw permitting a witness’s statements to be used against him or her in a subsequent criminal prosecution for a collateral offense such as perjury or obstruction of justice, we expressly disavow Allen’s reasoning.
The Fifth Amendment did not bar the admission of defendants’ false statements in the instant prosecutions for obstruction of justice. The district court abused its discretion by relying on the Fifth Amendment to exclude defendants’ false statements from evidence.
C
The district court also abused its discretion by excluding defendants’ false statements under MCL 15.393, which precludes the use of a police officer’s “involuntary statement” against that officer in a criminal prosecution. Specifically, MCL 15.393 provides:
An involuntary statement made by a law enforcement officer, and any information derived from that involuntary statement, shall not be used against the law enforcement officer in a criminal proceeding.
We recognize that whereas the Fifth Amendment only protects witnesses from incriminating themselves with respect to “crimes already committed,” Bassage, 274 Mich App at 325, the broad language of MCL 15.393 appears to embrace any criminal proceeding, including prosecutions for the collateral offenses of perjury or obstruction of justice. However, we conclude that the statute internally limits the phrase “involuntary statement” to include true statements only, and that false statements and lies therefore fall outside the scope of the statute’s protection.
The phrase “involuntary statement” is defined as “information provided by a law enforcement officer, if compelled under threat of dismissal from employment or any other employment sanction, by the law enforcement agency that employs the law enforcement officer.” MCL 15.391(a) (emphasis added). But when an officer is compelled to make a statement during an internal investigation, and provides only misinformation and lies, he or she has not provided any “information” at all within the commonly understood meaning of that word. Among other things, “information” is defined as “knowledge communicated or received concerning a particular fact or circumstance.” Random House Webster’s College Dictionary (1997). The word “knowledge,” in turn, is defined as “the body of truths or facts accumulated in the course of time.” Id. Because an officer’s lies do not impart any truths or facts, they necessarily do not constitute “information.” See MCL 15.391(a). In other words, an officer’s lies and false statements do not qualify as “involuntary state ment[s]” under MCL 15.393, and consequently may be used as evidence in a subsequent criminal prosecution.
We conclude that the Legislature’s manifest intent was to create a mechanism for facilitating internal police investigations and to provide an incentive for officers who cooperate by providing needed facts. The Legislature certainly did not intend to immunize police officers by precluding the use of their lies and false statements in criminal proceedings. Indeed, such a strained construction of MCL 15.393 would be wholly contrary to the Legislature’s purpose in enacting the statute. In sum, the plain language of MCL 15.391(a) establishes that an “involuntary statement” includes only truthful and factual information. Quite simply, when an officer lies, he or she provides no “information.” Accordingly, MCL 15.393 does not preclude the use of the officer’s lies in a criminal proceeding.
Defendants’ lies during the OCI investigation were not entitled to the protection of MCL 15.393. The district court abused its discretion by relying on MCL 15.393 to exclude defendants’ false statements from evidence in the prosecutions for obstruction of justice.
hi
In sum, the district court erred by misconstruing the Fifth Amendment guarantee as well as MCL 15.393. This error of law led the district court to abuse its discretion by excluding defendants’ false statements from evidence and dismissing the obstruction-of-justice charges against them on this ground. The circuit court erred by affirming the district court’s rulings. We reverse the decisions of the district court and the circuit court in this regard. We remand to the district court for reinstatement of the obstruction-of-justice charges against all three defendants.
Reversed and remanded to the district court for reinstatement of the obstruction-of-justice charges against all three defendants. We do not retain jurisdiction.
Meter, P.J., concurred with Jansen, J.
People v Hughes, unpublished order of the Court of Appeals, entered June 3, 2013 (Docket No. 316072).
People v Harris, unpublished order of the Court of Appeals, entered August 15, 2013 (Docket No. 317158); People v Little, unpublished order of the Court of Appeals, entered August 15, 2013 (Docket No. 317272).
MCL 15.391 et seq.
We wish to make clear that the district court did not err insofar as it followed the reasoning of Allen. Lower courts are hound to follow this Court’s published decisions unless and until they are overruled, vacated, or modified. MCR 7.215(C)(2); People v Herrick, 277 Mich App 255, 258; 744 NW2d 370 (2007). | [
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Per Curiam.
Petitioner appeals as of right the Tax Tribunal’s opinion and judgment, which adopted the findings of fact and conclusions of law of a hearing referee, who had upheld respondent’s assessment of successor liability to petitioner. Because the tribunal did not commit an error of law or adopt a wrong legal principle and its factual findings were supported by competent, material, and substantial evidence, we affirm.
I. BASIC FACTS
Before 2007, the entity Soulful Concepts, Inc., owned the restaurant in Southfield, Michigan, called Beans & Cornbread. Patrick Coleman, in turn owned Soulful Concepts. In 2007, petitioner, also owned by Coleman, purchased all of Soulful Concepts’ business, including all of its assets, for $50,000 and continued to operate the Beans & Cornbread restaurant. Coleman testified that he thought the value of all the assets was between $30,000 and $40,000. Coleman stated that this transaction was done because Soulful Concepts had “some debt issues” and “needed to get a fresh start.” Part of those debt issues involved large tax liabilities owed to both the federal government and the state of Michigan. Specifically, at the time of the referee’s hearing, the amount owed to the federal government was approximately $150,000, and the amount owed to the state of Michigan, not including some interest, was approximately $57,000.
Respondent assessed petitioner with Soulful Concepts’ Michigan tax liability on the basis that it was a successor entity under MCL 205.27a(1). Petitioner objected to the assessment and filed a petition for a hearing. Petitioner argued at the hearing that under the statute, its liability was limited by the fair market value of the assets acquired minus any senior, outstanding liabilities, such as the amount owed to the federal government. As a result, petitioner claimed that, with the value of the assets not exceeding $40,000, the outstanding $150,000 owed to the federal government “eviscerate[d] any sort of liability” to respondent.
After holding a hearing, the referee disagreed and concluded that respondent’s assessment was proper. First, the referee did not accept Coleman’s lay opinion on the evaluation of the assets, stating that it “cannot be accepted as credible or accurate.” The referee explained:
[Coleman] did not make any effort to describe the property with the specificity that would be needed to determine its fair market value. There is no evidence regarding the value of the liquor license or goodwill. [Coleman] executed the documents of sale on behalf of both the seller and the purchaser, which indicates that this was not an arm’s-length transaction and the stated purchase price cannot be accepted as fair market value. There is no market evidence whatsoever to support an appraisal of the value of the assets or the business.
The referee also concluded that if any federal tax liens existed, there was no evidence that they were ever perfected by being recorded in the Oakland County Register of Deeds. Furthermore, the referee concluded that the statute only allows for liability to be limited by the fair market value of the business acquired minus any proceeds of the sale that were used to satisfy a senior, secured interest. But the referee also found that none of the proceeds were used for such a purpose; thus, petitioner was not entitled to any reduction in liability.
The Tax Tribunal affirmed the referee’s decision and adopted his proposed opinion, including the findings of fact and conclusions of law.
II. ANALYSIS
Review of decisions by the Tax Tribunal is limited. “Unless fraud is alleged, an appellate court reviews the decision for a misapplication of the law or adoption of a wrong principle.” Podmajersky v Dep’t of Treasury, 302 Mich App 153, 162; 838 NW2d 195 (2013), quoting Liberty Hill Housing Corp v Livonia, 480 Mich 44, 49; 746 NW2d 282 (2008) (quotation marks omitted). “The tribunal’s factual findings are deemed conclusive provided they are supported by competent, material, and substantial evidence on the whole record.” Podmajersky, 302 Mich App at 162.
But to the extent that our review involves issues of statutory interpretation, that aspect of our review is de novo. Id. The primary goal of statutory interpretation is to give effect to the intent of the Legislature. Ford Motor Co v Woodhaven, 475 Mich 425, 438; 716 NW2d 247 (2006). To ascertain the Legislature’s intent, we look to the language in the statute and give the words their plain and ordinary meanings. Lafarge Midwest, Inc v Detroit, 290 Mich App 240, 246; 801 NW2d 629 (2010). If the statute’s language is not ambiguous, this Court will enforce the statute as written. Ford Motor, 475 Mich at 438-439.
MCL 205.27a(1), which governs successor liability, provided the following at all relevant times:
If a person liable for a tax administered under this act sells out his or her business or its stock of goods or quits the business, the person shall make a final return within 15 days after the date of selling or quitting the business. The purchaser or succeeding purchasers, if any, who purchase a going or closed business or its stock of goods shall escrow sufficient money to cover the amount of taxes, interest, and penalties as may be due and unpaid until the former owner produces a receipt from the state treasurer or the state treasurer’s designated representative showing that the taxes due are paid, or a certificate stating that taxes are not due. Upon the owner’s written waiver of confidentiality, the department may release to a purchaser a business’s known tax liability for the purposes of establishing an escrow account for the payment of taxes. If the purchaser or succeeding purchasers of a business or its stock of goods fail to comply with the escrow requirements of this subsection, the purchaser is personally liable for the payment of the taxes, interest, and penalties accrued and unpaid by the business of the former owner. The purchaser’s or succeeding purchaser’s personal liability is limited to the fair market value of the business less the amount of any proceeds that are applied to balances due on secured interests that are superior to the hen provided for in [MCL 205.29(1)].
Petitioner first argues that the tribunal erred by relying on the fact that there was no evidence that any of the federal tax liens were ever recorded. However, this issue is not relevant because, as will be discussed later, the existence of any senior security interests only comes into play when proceeds from the sale of the business are used to satisfy part of that debt, and there was no evidence that any proceeds were applied in this manner. Thus, we offer no opinion on whether the federal tax liens in this case qualify as “secured interests that are superior to the [state’s tax] lien.”
Here, Coleman admitted that he never escrowed any funds on behalf of petitioner. Thus, according to the plain language of the statute, it is clear that petitioner “is personally liable for the payment of the taxes, interest, and penalties accrued and unpaid by” Soulful Concepts. MCL 205.27a(1); see also STC, Inc v Dep’t of Treasury, 257 Mich App 528, 537; 669 NW2d 594 (2003).
The next inquiry is to determine to what extent petitioner is liable. Petitioner claims that the indebtedness owed to the federal government needs to be taken into account for determining the amount it owes the state as a successor entity. The statute provides that the “purchaser’s personal liability is limited to the fair market value of the business less the amount of any proceeds that are applied to balances due on secured interests that are superior to the lien provided for in [MCL 205.29(1)].” The tribunal determined that petitioner could not invoke the benefits of this section because it failed to establish the fair market value of the business. The finding that petitioner failed to establish the fair market value was supported by competent, material, and substantial evidence. Coleman agreed at the hearing that the sale of the business was not an arm’s-length transaction. Accordingly, the $50,000 sale price had no bearing on any market value determination. See Mackey v Dep’t of Human Servs, 289 Mich App 688, 704; 808 NW2d 484 (2010). Further, petitioner offered nothing to establish what the fair market value may be .except for Coleman’s unsupported lay opinion regarding the value. The referee and the tribunal decided that Coleman’s opinion on the value of the assets was not credible, and such credibility determinations will not be disturbed by this Court. Detroit Lions, Inc v Dearborn, 302 Mich App 676, 703; 840 NW2d 168 (2013). Further, Coleman admitted that he never got an appraisal of the assets and did not provide a list of the specific assets to respondent. Accordingly, because petitioner utterly failed to provide any evidence of what the market value of the business assets was it cannot claim this limitation. Cf. Podmajersky, 302 Mich App at 164-165 (stating that the burden of proving an exemption to a tax is on the party claiming the exemption).
The tribunal further found that there was no evidence that any proceeds from the sale were applied to balances due on any superior secured interests. Petitioner does not dispute this finding. Rather, petitioner argues that the presence of a superior secured interest, without any proceeds having been applied to the balance of the secured interest, is enough for it to offset its successor liability. However, the statute only allows for an offset for “any proceeds that are applied to balances due on secured interests that are superior to the hen provided for in section 29(1).” MCL 205.27a(1) (emphasis added). Thus, it is clear that in order for any such offset to occur, proceeds from the sale must be “applied” to balances due — the mere existence of any balances is insufficient. Accordingly, the tribunal did not misapply the law or adopt an incorrect legal principle when it came to the same conclusion.
In conclusion, we affirm the Tax Tribunal’s opinion and judgment affirming the imposition of petitioner’s successor liability pursuant to MCL 205.27a(1). The tribunal did not misapply the law or adopt an incorrect legal principle. It is undisputed that petitioner was liable for Soulful Concepts’ liability because it did not escrow any funds in conjunction with the business purchase. While normally, petitioner’s liability would have been limited to the fair market value of the business acquired, petitioner offered no evidence of the fair market value. Finally, the existence of any superior federal tax liens is of no consequence because the statute only allows for any offset of successor liability when proceeds from the sale are applied to such superior liens, and there is no evidence that any part of the proceeds were applied in this manner.
Affirmed.
Donofrio, P.J., and Gleicher and M. J. Kelly, JJ., concurred.
No actual money exchanged hands though. Instead, petitioner gave Soulful Concepts a promissory note for the $50,000, and Coleman signed the purchase agreement on behalf of both parties.
MCL 205.27a(1) was modified by 2014 PA 3, effective February 6, 2014. | [
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ON REMAND
Per Curiam.
This case, which involves a dispute between two insurance carriers of a single employer, How-met Corporation, returns to this Court on remand from the Michigan Supreme Court. The Michigan Supreme Court has directed this Court to address whether liability for Edwin A. Nichols’s wage-loss benefits should be allocated between defendant Pacific Employers Insurance Company/CIGNA (Pacific) and defendant American Manufacturers Mutual Insurance (American). The Michi gan Property & Casualty Association was substituted for American on appeal, but for the sake of clarity, we will continue to refer to the carriers as Pacific and American. We conclude that, when a first injury partially disables an employee, that employee resumes working, but then suffers a second disabling injury, the first insurance carrier is not liable for wage-loss benefits attributable to the second disabling injury. Therefore, we vacate the Workers’ Compensation Appellate Commission’s allocation of liability for wage-loss benefits solely to Pacific and remand to the commission for allocation of liability in accordance with this opinion.
I. FACTS
A. BACKGROUND FACTS
This Court’s previous opinion fully states the facts of this case. To briefly summarize, Nichols injured his cervical spine in 1989 and reinjured it in 1993. At those times, Pacific was Howmet’s workers’ compensation insurer. In 1998, a magistrate found that Nichols’s 1993 cervical-spine injury partially disabled him and that he could return to light-duty work. The magistrate found that Nichols’s average weekly wage was $635 on January 28, 1993.
Nichols returned to work at a lower wage than he had earned before his 1993 cervical-spine injury. In December 1998, while engaged in light-duty work, Nichols injured his low back. At that time, Howmet was known as Cordant Technologies. American was Howmet’s workers’ compensation insurer. After Nichols’s 1998 low-back injury, a magistrate awarded Nichols an open award of wage-loss benefits. The magistrate found that Nichols’s average weekly wage at the time of his 1998 low-back injury was $567.70. The commission ordered that “[American] must pay benefits related to plaintiffs low back injury. [Pacific] must pay benefits related to plaintiffs cervical injury including wage loss benefits.”
B. PROCEDURAL HISTORY
On appeal, Pacific contended that, if it is liable for wage-loss benefits, it is only obligated to pay the difference above the wage loss attributable to Nichols’s 1998 low-back injury. This Court concluded that we could not reach the issue because Pacific did not raise the issue before the commission and the commission did not address it. The Michigan Supreme Court determined, however, that Pacific did raise the issue before the commission and that the commission implicitly rejected Pacific’s argument. Accordingly, the Michigan Supreme Court vacated that portion of this Court’s opinion and remanded to this Court, ordering this Court to address whether Pacific “is only obligated to pay differential wage loss benefits beyond those defendant American... must pay for the plaintiffs wage loss due to that later injury.”
II. ALLOCATION OF LIABILITY
A. STANDARD OF REVIEW
This Court reviews de novo questions of law related to a final order of the commission.
B. THIS COURT’S POWER TO ORDER ALLOCATION OR REIMBURSEMENT
In its supplemental brief, American contends that this Court cannot allocate liability in this instance because specific statutory sections provide for the allocation of wage-loss benefits. We disagree.
Generally, it is true that “[t]hat which is expressed puts an end to or renders ineffective that which is implied.” But we conclude that this rule of statutory interpretation does not apply in this case. The Legislature has provided rules for allocating liability for wage-loss benefits. The specific circumstances addressed by the rules are exactly that — specific—and this case involves none of those specific circumstances. Rather, this case fits into the more general framework of MCL 418.301(5). In that subsection, the Legislature has set out when an employee is entitled to wage-loss benefits but has not set out who must pay benefits or whether one insurance carrier is entitled to reimbursement from another. The Legislature’s decision not to specifically authorize allocation or reimbursement does not prevent this Court from ordering allocation or reimbursement.
Stated another way, MCL 418.301(5)(e) does not prohibit allocation or reimbursement because it does not address the issue. Nor has the Legislature prohibited, by negative implication, allocating liability between insurance carriers when a partially disabled employee suffers another injury while performing reasonable employment. We conclude that we may order allocation or reimbursement, if either is warranted.
American also argues that MCL 418.301(5)(e) provides that the employer is liable for wage loss based on the original date of injury and thus establishes that Pacific cannot allocate that liability. We find this argument unpersuasive because MCL 418.301(5)(e) does not allocate liability among insurance carriers, but instead is simply silent on the issue.
C. DIFFERENTIAL WAGE-LOSS BENEFITS
1. LEGAL STANDARDS
An employee is disabled when the employee experiences a disability covered under the workers’ compensation act that results in a reduction in wage-earning capacity. But an employee who is only partially disabled retains a partial capacity for work. The employer is not liable for the employee’s partial capacity, and his or her “[p]ost-injury earnings, during periods of partial disability, operate as a credit, and in mitigation of, an employer’s wage indemnity liability.” The Legislature has partially codified the favored-work doctrine in the act’s reasonable employment provision. Reasonable employment is
work that is within the employee’s capacity to perform that poses no clear and proximate threat to that employee’s health and safety, and that is within a reasonable distance from that employee’s residence.[ ]
MCL 418.301(5)(e) provides that a disabled employee who works less than 100 weeks and loses his or her job “for whatever reason. . . shall receive compensation based upon his or her wage at the original date of injury.” In Arnold, the Michigan Supreme Court held that under such circumstances, “the original employer is to pay benefits computed using wages at the time of the original injury.” But the Court declined to address whether the original employer might be entitled to reimbursement when the employee loses his or her job because he or she is disabled while performing reasonable employment.
2. APPLYING THE STANDARDS
Pacific contends that it should only be liable for the wage-loss benefits above those that American should pay for Nichols’s 1998 low-back injury. We agree.
Here, Pacific paid wage-loss benefits for Nichols’s 1993 cervical-spine injury. That injury partially disabled Nichols, but he remained capable of earning an average weekly wage of $567.70. In December 1998, Nichols suffered a second, distinct injury to his low back while performing reasonable employment. He was then fully disabled.
We conclude that the commission erred when it declined to hold American liable for wage-loss benefits related to Nichols’s 1998 low-back injury. The commission correctly determined that Pacific, the first insurance carrier, was hable to pay benefits on the basis of Nichols’s wages at the time of the original injury. But the commission should not have declined to order reimbursement for Pacific simply because the Michigan Supreme Court did not address the issue in Arnold. Accepting as we must the Michigan Supreme Court’s determination that Pacific raised this issue before the commission, we conclude that the commission should have considered general principles of workers’ compensation law to determine whether allocation was appropriate.
To hold the first insurer liable for the employee’s entire amount of wage-loss benefits under MCL 418.301(5)(e) when a second disabling injury causes the employee to lose his or her job defies principles of causation in workers’ compensation law for two reasons. First, an employee’s entitlement to wage-loss benefits from an employer (or insurance carrier) is based on his or her reduction in wage-earning capacity. Here, Nichols’s 1993 cervical-spine injury did not cause the vast majority of Nichols’s wage loss. Rather his 1998 low-back injury caused much of that wage loss. Nichols’s ability to continue to earn $567.70 a week while performing reasonable employment after his 1993 cervical-spine injury illustrates this point precisely. To reiterate, Nichols’s 1998 low-back injury separately caused much of the reduction in his wage-earning capacity.
Second, an employee’s postinjury earnings or ability to earn operates as a credit and mitigates the employer’s liability to pay wage-loss benefits. Even after Nichols’s 1993 cervical-spine injury, he retained some capacity to work. His earnings mitigated Pacific’s liability to pay wage-loss benefits. Nichols’s 1998 low-back injury caused his involuntary removal from the workforce and ended the mitigation of Pacific’s liability to pay wage-loss benefits. At that time, American was the worker’s compensation insurer for any injury. It is logical that American should reimburse Pacific when Nichols’s 1998 low-back injury ended the mitigation of Pacific’s liability to pay wage-loss benefits.
We conclude that, under the circumstances of this case, American, as the insurer at the time of Nichols’s 1998 low-back injury, is responsible for Nichols’s wage loss attributable to his 1998 low-back injury and second disability but that Pacific, as the insurer at the time of the commission’s partial disability determination, should remain liable for wage-loss benefits from the partial disability caused by Nichols’s 1993 cervical-spine injury. Our conclusion is consistent with general disability principles concerning causation and with reasonable employment principles.
III. CONCLUSION
We conclude that Pacific is only liable for wage loss related to Nichols’s 1993 cervical-spine injury and par tial disability, and American is liable for wage loss related to Nichols’s 1998 low-back injury. We vacate the commission’s allocation of liability solely to Pacific and remand for the commission to allocate liability in accordance with this opinion. We do not retain jurisdiction. No costs under MCR 7.219 because an issue of public interest is involved.
Servitto, P.J., and Whitbeck and Owens, JJ., concurred.
Nichols v Howmet Corp, 495 Mich 988 (2014).
Nichols v Howmet Corp, 302 Mich App 656; 840 NW2d 388 (2013), vacated in part 495 Mich 988 (2014).
Nichols, 302 Mich App at 673.
Nichols, 495 Mich at 988.
Id.
DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).
Sebewaing Indus, Inc v Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953). See Johnson v Recca, 492 Mich 169,176 n 4; 821 NW2d 520 (2012).
See, e.g., MCL 418.372(1)(b) (allocating liability when an employee has two employers); MCL 418.921 (allocating liability of an employer of an employee with a vocational disability).
MCL 418.301 was amended effective December 19, 2011, and the relevant provisions of Subsection (5) are now contained in Subsection (9) of the statute. References in this opinion to Subsection (5) are to Subsection (5) as constituted at the time applicable to this case.
Stewart v Saginaw Osteopathic Hosp, 100 Mich App 502, 510; 298 NW2d 911 (1980) (reimbursement). See Arnold v Gen Motors Corp, 456 Mich 682, 691-692; 575 NW2d 540 (1998) (allocation).
Nichols, 495 Mich at 988.
Sington v Chrysler Corp, 467 Mich 144, 155; 648 NW2d 624 (2002).
See MCL 418.361 as constituted at the time applicable to this case; Sweatt v Dep’t of Corrections, 468 Mich 172, 181; 661 NW2d 201 (2003).
Schmaltz v Troy Metal Concepts, Inc, 469 Mich 467, 473; 673 NW2d 95 (2003) (quotation marks and citation omitted).
Derr v Murphy Motor Freight Lines, 452 Mich 375, 383; 550 NW2d 759 (1996).
MCL 418.301(9) as constituted at the time applicable to this case.
MCL 418.301(5)(e).
Arnold, 456 Mich at 691.
Id. at 692 n 9.
See Arnold, 456 Mich at 691.
See Sington, 467 Mich at 155; Sweatt, 468 Mich at 186.
Nichols, 302 Mich App at 672. See Sington, 467 Mich at 155.
Schmaltz, 469 Mich at 473; Perez v Keeler Brass Co, 461 Mich 602, 611; 608 NW2d 45 (2000); MCL 418.301(5)(a).
See Sweatt, 468 Mich at 181.
See Schmaltz, 469 Mich at 473. | [
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Per Curiam.
Appellant, Kelly Michelle Dorsey, appeals by right the contempt order entered by the Livingston Circuit Court, Family Division (the family court). As part of her son’s juvenile adjudication, the family court entered an order requiring appellant to submit to random drug screens at the request of the probation department. The court found appellant in criminal contempt after she refused to comply with the order, and she was sentenced to 93 days in jail and ordered to pay $200 in costs, $120 in attorney’s fees, and $500 in fines. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
The criminal contempt proceeding against appellant originated from juvenile delinquency proceedings con cerning appellant’s son, Tyler Dorsey. Tyler first came to the attention of the family court in April 2008, when he was charged with three counts of breaking and entering a vehicle, MCL 750.356a(2)(a). Tyler was placed on the consent calendar/informal docket, which he successfully completed on July 3, 2009.
A second delinquency petition was filed in December 2009, when Tyler was charged with carrying a dangerous weapon with unlawful intent, MCL 750.226, receiving and concealing stolen property, MCL 750.535, possession of a controlled substance (hydrocodone), MCL 333.7403(2)(b)(ii), and possession of alcohol by a minor, MCL 436.1703(1)(a). The weapon and alcohol charges were dismissed, and Tyler pleaded guilty to the remaining charges. A dispositional hearing/sentencing was scheduled for March 25, 2010, but, it was adjourned after Tyler’s father died.
After the father’s death, Kimberly Ognian, the father’s longtime girlfriend, was named Tyler’s guardian. A dispositional hearing was scheduled for April 16, 2010. Before the hearing, Tyler’s probation officer, Susan Grohman, submitted a report and recommendation to the family court. Grohman reported that Ognian was Tyler’s primary caregiver and that appellant had not been involved in Tyler’s life for the past year. Grohman further reported that appellant had “alcohol/drug problems and a criminal record.” Tyler was referred for a biopsychosocial assessment. In his assessment, Tyler reported “little contact with his mother [appellant] recently and that he feels that this might be due to his mother’s substance abuse.”
On April 16, 2010, Tyler was placed on probation and ordered to complete a number of terms and conditions, including random drug screens. On August 2, 2010, Tyler tested positive for benzodiazepines. Shortly thereafter, a petition charging Tyler with domestic violence was filed, MCL 750.81(2). The victim was Meagan Ognian, Kimberly Ognian’s daughter, with whom Tyler was living and in a relationship. Tyler was removed from Kimberly Ognian’s care and went to live with appellant.
On August 20, 2010, another petition was filed, charging Tyler with first-degree home invasion, MCL 750.110a(2), and possession of alcohol by a minor, MCL 436.1703(1)(a). Grohman reported that Tyler’s biggest problem was a lack of supervision. Tyler was allowed to come and go as he pleased and was seen walking around downtown Howell at all hours of the night. Because of his chronic delinquency and the inability of appellant and his guardian to control him, Tyler was placed in a residential facility.
Appellant and her daughter, Destiny Dorsey, visited Tyler at the facility and participated in family counseling sessions. According to the counselor’s report, appellant and Destiny both denied that they used drugs and further reported that they did not keep alcohol in the house. Appellant did report, however, that “she had a serious drug problem several years ago when she got divorced.... [Appellant] acknowledged that the only way she knew how to cope with her feelings was to escape by smoking crack cocaine.” Appellant represented to the family counselor that she had changed and could be a positive parent for Tyler.
Tyler’s behavior began to improve at the facility, and a placement review hearing was conducted on January 13, 2011. Grohman reported that Tyler was doing well and had been granted a day pass for Christmas to see his grandparents. Grohman further stated:
Transportation became an issue due to the fact that the grandparents had to cook and entertain. Tyler’s sister and [appellant] became the next logical choice for a transport. A drug test was requested prior to allowing Tyler to be released to the care and custody of [appellant]. Due to the fact that his sister would be driving, she agreed to submit to a test as well. From the date the test [was] requested [to] the date [appellant] and Destiny appeared for a test, three days had lapsed. The test would not return prior to Christmas so a decision was made to allow the visit to take place in an effort not to punish Tyler. Unfortunately, both tests returned diluted. A retest was requested. To date, Destiny has failed to appear and [appellant] did report (again not on the day requested). [Appellant’s] test returned negative for all substances.
In the meantime Tyler’s [guardian ad litem] filed an abuse and neglect petition naming both [appellant] and Kim Ognian as respondents. Since the time of this hearing, Kim’s guardianship has been terminated.
Grohman recommended that Tyler’s facility placement continue and that the family court order appellant and Destiny to submit to random drug tests. Following the hearing, the family court issued an order dated January 14, 2011, requiring appellant and Destiny to “submit to random drug testing as requested by Maurice Spear Campus or the probation department.” The family court further ordered that appellant’s home remain drug and alcohol free and subject to random searches.
On August 26, 2011, the family court conducted another placement review hearing. Grohman reported that Tyler and appellant responded extremely well to services at the residential facility. Further, Grohman stated that the Department of Human Services (DHS) reported full compliance by appellant in her abuse and neglect case. Following the hearing, the family court entered an order releasing Tyler into appellant’s custody.
On December 19 and December 27, 2011, Tyler tested positive for K2, a synthetic form of cannabis. On January 9, 2012, Grohman filed a motion requesting that the family court issue an order directing Tyler to appear and show cause why he should not be found in criminal contempt. Also on January 9, 2012, Grohman requested that appellant begin biweekly drug screenings at Second Chance.
Appellant reported to Second Chance on January 9 and 10, 2012, but she refused to test both days. After appellant’s second refusal, Grohman filed two show-cause motions. Both motions referred to the January 14,2011 order requiring appellant to submit to random drug tests. The family court granted both motions and ordered appellant to appear and show cause why she should not be found in criminal contempt.
Counsel was appointed for appellant, and a show-cause hearing was conducted on February 2, 2012. During the hearing, Grohman referred to the juvenile proceedings and the abuse and neglect proceeding, noting that appellant’s abuse and neglect case had been closed by the DHS. Grohman stated that appellant was required to drug test in the abuse and neglect case and was compliant with testing in that case. Grohman stated that she asked appellant to test in the delin quency case on January 9, 10, 11, 12, 13, and 17, 2012, and appellant had refused each time. Grohman did not show appellant the January 14, 2011 order requiring appellant to submit to random drug testing, but Grohman spoke with appellant, and appellant was aware of the order. Megan Alcala, a Community Reintegration Program facilitator, corroborated Grohman’s testimony. Alcala stated that she was present when Grohman spoke with appellant and requested appellant to take a drug test. Alcala stated that Grohman explained to appellant that there was a court order and that appellant appeared to understand.
Appellant testified that she was confused between the delinquency case and the abuse and neglect case. Appellant stated that she was aware of an order requiring her to test in the abuse and neglect case, but she was unaware that there was a similar order in the delinquency case. Appellant stated that the abuse and neglect case was closed in November 2011. Therefore, appellant was confused when Grohman asked her to test on January 9, 2012. Appellant stated that Grohman did not explain that there was an order requiring her to test in the delinquency case. Appellant acknowledged, however, that Grohman had told appellant that “she wanted [appellant] to test for the [delinquency] case.” Appellant further stated that she received a piece of paper that stated “it is requested by Sue Grohman, juvenile probation, and Second Chance that you drug test though Second Chance twice a week until April 16th for drugs, alcohol, and K2.” Appellant stated: “I didn’t refuse right then but I refused later on that day until I could talk to my attorney.” Appellant further stated: “I didn’t know if it was legal... because my [abuse and neglect] case was closed and I hadn’t — there wasn’t — in my opinion there was no reason why I would have to do a drug test.”
At the conclusion of the hearing, the family court found appellant in contempt of court for failing to comply with the court’s order. On February 6, 2012, the family court entered a written order of contempt. The order appears to be a standard court document and includes boxes labeled “preponderance of the evidence” and “beyond a reasonable doubt.” The “preponderance of the evidence” box was checked on the order. The order did not indicate whether appellant was found guilty of civil or criminal contempt.
The family court adjourned sentencing to allow appellant to report to Second Chance for a drug test. On February 9, 2012, the family court sentenced appellant to 93 days in jail. The court further ordered appellant to pay costs in the amount of $200, attorney’s fees in the amount of $120, and “a total of $500 to the court within 30 days of her release from jail.” The family court indicated that appellant did take a drug test on February 2, 2012, but the court did not disclose the results. A second order of contempt was entered February 10, 2012. The “preponderance of the evidence” box was checked and the order did not indicate whether appellant was found guilty of criminal or civil contempt.
Following sentencing, appellant filed three motions: a motion for a judgment of acquittal or a new trial, a motion to correct the sentence, and a motion to stay execution of the sentence. In the motions, appellant argued that the family court’s order requiring appellant to submit to drug testing was beyond its jurisdiction and authority. Additionally, appellant argued that the order violated her right to be free from unreasonable searches and seizures. Finally, appellant argued that there was insufficient evidence to convict her of criminal contempt. Specifically, appellant noted that the family court checked the “preponderance of evidence” box on the order of contempt. Appellant argued that a preponderance of evidence was insufficient to sustain her conviction for criminal contempt.
A hearing on all three motions was conducted. After hearing arguments, the family court denied appellant’s motion for a judgment of acquittal or a new trial, as well as her motion to correct the sentence. The family court clarified that appellant was found guilty of criminal contempt and that its findings were beyond a reasonable doubt. The court indicated that there was a clerical error on the contempt order. Additionally, the court rejected appellant’s argument that its order requiring appellant to drug test was beyond its jurisdiction or authority, stating that “the jurisdiction of the parent is in essence obtained, in the opinion of the Court, by way of jurisdiction over the juvenile.” The court granted appellant’s motion to stay the sentence pending appeal to this Court.
II. JURISDICTION
As an initial matter we note that appellant contends that the family court did not have subject-matter jurisdiction. We disagree.
The interpretation and application of a statute presents a question of law that the appellate court reviews de novo. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). The judiciary’s objective when interpreting a statute is to discern and give effect to the intent of the Legislature. Id. This Court’s review of jurisdictional issues is de novo. Pontiac Food Ctr v Dep’t of Community Health, 282 Mich App 331, 335; 766 NW2d 42 (2009). Issues involving the interpretation of court rules are also reviewed de novo as questions of law. Id. “The term jurisdiction refers to the power of a court to act and the authority a court has to hear and determine a case.” Wayne Co Chief Executive v Governor, 230 Mich App 258, 269; 583 NW2d 512 (1998). “The ‘power to review’ thus granted is the power to hear and determine. It is language of jurisdiction.” Peplinski v Employment Security Comm, 359 Mich 665, 668; 103 NW2d 454 (1960). Questions surrounding subject-matter jurisdiction present questions of law and are reviewed de novo. In re Lager Estate, 286 Mich App 158, 162; 779 NW2d 310 (2009). Generally, subject-matter jurisdiction is defined as a court’s power to hear and determine a cause or matter. Id. More specifically, subject-matter jurisdiction is the deciding body’s authority to try a case of the kind or character pending before it, regardless of the particular facts of the case. Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 204; 631 NW2d 733 (2001). Subject-matter jurisdiction cannot be waived and can be raised at any time by any party or the court. MJC/Lotus Group v Brownstown Twp, 293 Mich App 1, 7-8; 809 NW2d 605 (2011), rev’d in part on other grounds Mich Props, LLC v Meridian Twp, 491 Mich 518 (2012). The plaintiff bears the burden of demonstrating subject-matter jurisdiction. Phinney v Perlmutter, 222 Mich App 513, 521; 564 NW2d 532 (1997). A trial court must dismiss an action when there is a lack of subject-matter jurisdiction, and a party cannot be estopped from raising the issue. In re Acquisition of Land for the Central Indus Park Project, 177 Mich App 11, 17; 441 NW2d 27 (1989).
“Before a court may obligate a party to comply with its orders, the court must have in personam jurisdiction over the party.” Oberlies v Searchmont Resort, Inc, 246 Mich App 424, 427; 633 NW2d 408 (2001). General personal jurisdiction over individuals may be established by domicile in this state or consent, MCL 600.701, and limited personal jurisdiction may be established by maintaining domicile in this state while sub ject to a family relationship that is the basis of a claim for divorce, alimony, separate maintenance, property settlement, child support, or child custody, MCL 600.705(7). The defense of lack of personal jurisdiction may be waived. Dundee v Puerto Rico Marine Mgt, Inc, 147 Mich App 254, 257; 383 NW2d 176 (1985).
“Const 1963, art 6, § 15 grants probate courts ‘original jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by law.’ ” In re AMB, 248 Mich App 144, 167; 640 NW2d 262 (2001). The family division of the circuit court (family court) now exercises this jurisdiction. People v Thenghkam, 240 Mich App 29, 36; 610 NW2d 571 (2000), reasoning and analysis repudiated in part on other grounds in People v Petty, 469 Mich 108 (2003). “In construing jurisdictional statutes, retention of jurisdiction is presumed, and any intent to divest a court of jurisdiction must be clearly and unambiguously stated.” In re Waite, 188 Mich App 189, 202; 468 NW2d 912 (1991).
Under MCL 712A.2, the family division of the circuit court obtained authority over juveniles. The family court also acquires jurisdiction over adults pursuant to MCL 712A.6, which provides as follows:
The court has jurisdiction over adults as provided in this chapter and as provided in chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082, and may make orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular juvenile or juveniles under its jurisdiction. However, those orders shall be incidental to the jurisdiction of the court over the juvenile or juveniles.
Appellant’s contention that the family court lacked subject-matter jurisdiction is without merit. The subject matter of the proceeding involved the appellant’s son’s juvenile proceeding. Accordingly, the family court was entitled to render orders affecting adults that were necessary for the physical, mental, or moral well-being of appellant’s son. We reject appellant’s challenge to the subject-matter jurisdiction of the court.
Furthermore, individuals who violate court orders are subject to contempt proceedings. See ARA Chuckwagon of Detroit, Inc v Lobert, 69 Mich App 151, 159; 244 NW2d 393 (1976). An order entered by a court must be obeyed until it is judicially vacated. Id. at 161. The validity of an order is determined by the courts, not the parties. Id. “Generally, all persons who interfere with the proper exercise of a court’s judicial function, whether parties or strangers, are punishable for contempt.” 8 Michigan Law & Practice (2d ed), Contempt, § 2, p 3. Because the family court concluded that appellant interfered with the court’s function, appellant could be punished for contempt. Id.
III. SEARCH AND SEIZURE AND RANDOM DRUG SCREENS
Appellant next contends that the family court order for random drug screens constituted an illegal search and seizure. The family court’s order requiring appellant to submit to random drug testing was unconstitutional under the Fourth Amendment and Const 1963, art 1, § 11. However, the unconstitutionality of the order is not a defense to criminal contempt allegations. The order was entered by a court with proper jurisdiction. Therefore, appellant was required to follow it.
The application of constitutional standards to uncontested facts is a question of law subject to review de novo. People v Stevens (After Remand), 460 Mich 626, 631; 597 NW2d 53 (1999). “This Court review[s] de novo whether the Fourth Amendment was violated . . . .” People v Mungo (On Second Remand), 295 Mich App 537, 545; 813 NW2d 796 (2012) (quotation marks and citation omitted).
“It is well settled that both the United States Constitution and the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures.” People v Hyde, 285 Mich App 428, 438; 775 NW2d 833 (2009) (quotation marks and citations omitted); see also US Const, Am IV; Const 1963, art 1, § 11. The Michigan Constitution in this regard is generally construed to provide the same protection as the Fourth Amendment of the United States Constitution. People v Slaughter, 489 Mich 302, 311; 803 NW2d 171 (2011). The touchstone of the Fourth Amendment is reasonableness. Brigham City, Utah v Stuart, 547 US 398, 403; 126 S Ct 1943; 164 L Ed 2d 650 (2006). Whether a particular search and seizure is reasonable “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Skinner v Railway Labor Executives’ Ass’n, 489 US 602, 619; 109 S Ct 1402; 103 L Ed 2d 639 (1989) (quotation marks and citation omitted). In most criminal cases, this balance is struck “in favor of the procedures described by the Warrant Clause of the Fourth Amendment. Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.” Id. (citation omitted); see also People v Borchard-Ruhland, 460 Mich 278, 293-294; 597 NW2d 1 (1999).
An order requiring a student to submit to drug testing is an intrusion on bodily privacy and is, there fore, a search under the Fourth Amendment. Vernonia Sch Dist 47J v Acton, 515 US 646, 652; 115 S Ct 2386; 132 L Ed 2d 564 (1995) (“[S]tate-compelled collection and testing of urine . . . constitutes a ‘search’ subject to the demands of the Fourth Amendment.”). See also Skinner, 489 US at 617. Such a search, however, “will survive constitutional scrutiny, in the absence of a warrant or individualized suspicion, if the ‘important governmental interest furthered by the intrusion’ outweighs the ‘privacy interests implicated by the search ....’” Middlebrooks v Wayne Co, 446 Mich 151, 159; 521 NW2d 774 (1994), quoting Skinner, 489 US at 624. Although the state has an important governmental interest in protecting and rehabilitating juvenile offenders, such interest does not outweigh appellant’s right to privacy in this case.
Michigan has not previously addressed the specific issue presented in this case. Other jurisdictions, however, have. In State v Doe, 149 Idaho 353; 233 P3d 1275 (2010), the Does’ minor daughter was placed on formal probation under Idaho’s Juvenile Corrections Act (JCA). Id. at 355. A social investigation revealed that the Does had a history of drug abuse. Accordingly, the magistrate judge ordered the Does “to undergo random drug urinalyses as a term of their daughter’s probation.” Id. The Supreme Court of Idaho concluded that the probation order violated the Fourth Amendment. Id. at 357-360. The court began its analysis concluding that the Does retained an undiminished expectation to privacy: “Although the Does’ daughter is on probation, it does not necessarily follow that they themselves are subject to a diminished expectation of privacy in their bodily fluids.” Id. at 358. The court acknowledged the state’s legitimate interest in protecting and rehabilitating children but held that “even where a substan tial State interest exists, this Court will not uphold a search ‘whose primary purpose is ultimately indistinguishable from the general interest in crime control.’ ” Id. at 359 quoting City of Indianapolis v Edmond, 531 US 32, 44; 121 S Ct 447; 148 L Ed 2d 333 (2000).
The Doe court took guidance from Ferguson v City of Charleston, 532 US 67; 121 S Ct 1281; 149 L Ed 2d 205 (2001). In Ferguson, the Supreme Court analyzed the constitutionality of a state hospital’s policy of performing nonconsensual drug testing on pregnant women suspected of cocaine abuse. Id. at 69-70. The policy provided for a referral to substance-abuse treatment for women who tested positive and added the threat of law enforcement intervention. Id. at 72. The Supreme Court found the policy violative of the Fourth Amendment because “the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment.” Id. at 80. The Supreme Court observed that the “ultimate goal” of the program, i.e., substance-abuse treatment, may have been salutary, but “the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal.” Id. at 82-83. Although the hospital intended that the threat of prosecution would curtail drug use, the “direct and primary purpose” of the scheme was to assist the police. Id. at 84. The Supreme Court found the distinction critical, explaining:
Because law enforcement involvement always serves some broader social purpose or objective, under respondents’ view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose. [Id.]
Relying on Ferguson, the Doe court concluded that the urinalysis requirement violated the Fourth Amendment:
Just like the testing program in Ferguson, testing in this case is characterized by a general interest in law enforcement. The magistrate imposed the urinalysis requirement during juvenile delinquency proceedings under the JCA, which are quasi-criminal in nature. The magistrate’s order requires the Does to report to their daughter’s probation officer, who is an officer of the county required by law to “enforce probation conditions.” Nothing prevented the probation officer from conveying the Does’ test results to law enforcement. Their failure to comply could result in contempt sanctions, which would be brought and pursued by the prosecuting attorney. Indeed, the juvenile probation officer in this case reported the parents’ positive urinalysis results to the prosecutor. It also appears that such evidence could be used to obtain search warrants against the Does and would be admissible against the Does in further criminal proceedings for encouraging their daughter’s delinquency.
. . . Just as the urine-test requirement in Ferguson was intended to protect the health of unborn fetuses by detecting prenatal cocaine use, the drug testing here is intended to ensure the Does’ daughter’s rehabilitation by detecting drug use at home. The immediate method for attaining the goals in both cases is to report the drug use for criminal sanctions. [Doe, 149 Idaho at 359-360 (citations omitted).]
A similar conclusion was reached by the Utah Supreme Court in State v Moreno, 2009 Utah 15; 203 P3d 1000 (2009). In Moreno, the defendant’s juvenile daughter was adjudicated “delinquent for possession of marijuana and attempted possession of methamphetamine.” Id. at ¶ 1. As part of his daughter’s probation, the juvenile court ordered the defendant to undergo drug testing. Id. The Utah Supreme Court concluded that the order violated the Fourth Amendment. Id. at ¶ 42. Like the Doe court, the Moreno court concluded that the defendant enjoyed an undiminished expectation of privacy: “A parent does not surrender his expectation of privacy merely because he acquires the status of a parent of a minor who has been adjudicated delinquent.” Id. at ¶ 29. The Moreno court also recognized the government’s interest of ensuring “that the parent is drug free and therefore is not providing an inappropriate example to the minor or directly contributing to the minor’s drug use.” Id. at ¶ 32. However, the court held that this interest was of secondary importance:
The focus of the juvenile court system ... is on modifying the behavior of the juvenile. Because the focus is on the behavior of the juvenile, the behavior of parents of juveniles involved in the system is of secondary importance.
Attempting to ensure that parents of delinquent juveniles are drug free also should not be confused with the goal of protecting children where there is a concern for their welfare. In the presence of a welfare concern related to the parent’s drug use, the government’s interest is decidedly increased, as are the possible consequences of waiting until there is probable cause for a search. By contrast, where the concern of the proceeding is the child’s delinquent behavior, there is less necessity to obtain information about the parent’s behavior. There is time to obtain information that will provide probable cause for a search of the parent. [Id. at ¶¶ 33-34.]
Though Doe, 149 Idaho 353, and Moreno, 2009 Utah 15, are not binding on this Court, their reasoning is persuasive. There is no dispute that the state has an interest in protecting and rehabilitating children who have been adjudicated delinquent. However, appellant did not enjoy a diminished expectation to privacy merely by virtue of the fact that her son had been adjudicated delinquent. Doe, 149 Idaho at 358; Moreno, 2009 Utah at ¶ 29. Appellant enjoyed the full measure of Fourth Amendment protections. The ultimate goal of drug testing appellant may have been salutary, but the primary purpose was “ultimately indistinguishable from the general interest in crime control.” Edmond, 531 US at 44. The order was imposed as part of a juvenile adjudication, which is quasi-criminal in nature. People v Williams, 147 Mich App 1, 6; 382 NW2d 191 (1985). Appellant was ordered to test at the direction of her son’s probation officer, and nothing prevented the probation officer from turning over appellant’s test results to law enforcement personnel. Additionally, appellant’s failure to comply with the order could, and did, result in criminal contempt sanctions, which were pursued by the prosecutor. Therefore, the family court’s order was unconstitutional under the Fourth Amendment and Const 1963, art 1, § 11.
The constitutionality of the order, however, is not the issue directly before this Court. Rather, the issue is whether appellant was required to follow the order. It is well settled that “[a] party must obey an order entered by a court with proper jurisdiction, even if the order is clearly incorrect, or the party must face the risk of being held in contempt and possibly being ordered to comply with the order at a later date.” Kirby v Mich High Sch Athletic Ass’n, 459 Mich 23, 40; 585 NW2d 290 (1998); see also In re Contempt of Henry, 282 Mich App 656, 680; 765 NW2d 44 (2009). The family court had jurisdiction over appellant under MCL 712A.6.
Appellant argues that MCL 712A.6 must be interpreted in a constitutional manner, and “MCL 712A.6 cannot be interpreted to grant the [family court] subject matter jurisdiction to issue unconstitutional orders.” However, the longstanding policy is that “a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.” United States v Rylander, 460 US 752, 756; 103 S Ct 1548; 75 L Ed 2d 521 (1983) (quotation marks and citation omitted). Rather, the underlying challenge to the original order cannot be raised for the first time in a contempt proceeding. Id. Further, appellant waived the challenge to the order underlying the contempt. Forfeiture is the failure to timely assert a right. People v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999). Waiver is the “intentional relinquishment or abandonment of a known right.” Id. (quotations marks and citation omitted). The failure to object deprives the “court of the opportunity to correct the error at the time it occurs.” People v Vaughn, 491 Mich 642, 674; 821 NW2d 288 (2012). “[U]nequivocal indications” that one approved of a course of action taken in the trial court constitute waiver. People v Kowalski, 489 Mich 488, 505; 803 NW2d 200 (2011). “To hold otherwise would allow counsel to harbor error at trial and then use that error as an appellate parachute[.]” Id. (quotation marks and citation omitted). A person can waive his or her constitutional rights, including the right to a public trial, Vaughn, 491 Mich at 664, as well as statutory rights, In re Receivership of 11910 South Francis Rd, 492 Mich 208, 228; 821 NW2d 503 (2012).
Here, the family court issued an order dated January 14, 2011, requiring appellant to “submit to random drug testing as requested by Maurice Spear Campus or the probation department.” The family court further ordered that appellant’s home remain drug and alcohol free and subject to random searches. Appellant did not contest the authority of the family court to enter this order in the juvenile proceeding as opposed to the then concurrently pending abuse and neglect petition. Indeed, compliance with the drugs screens was a requirement to reunite appellant with her son. Further, the DHS reported that appellant was in compliance. Nearly a year after the entry of the order, appellant objected to the case from which the order originated only after a show-cause order was entered. However, the order was in place for a year before appellant contested its origin. Therefore, appellant waived this challenge.
IV SUFFICIENCY OF THE EVIDENCE OF CONTEMPT
Appellant raises two issues under this question. First, appellant argues that there was insufficient evidence to convict her of criminal contempt because the family court made its findings by a preponderance of the evidence. The family court entered two contempt orders in this case. Both included boxes labeled “preponderance of the evidence” and “beyond a reasonable doubt.” The “preponderance of the evidence” box was checked on both orders. Appellant argues that she was found guilty under the preponderance of the evidence standard; therefore, there was insufficient evidence to convict. The family court, however, clarified that there was a clerical mistake and that its findings were under the beyond a reasonable doubt standard. Appellant takes issue with the trial court’s action, stating that the burden of proof is a matter of substance. This argument is unpersuasive. The clerical mistake the trial court was referring to was the checking of the “preponderance of evidence box,” not the applicable burden of proof.
Appellant next argues that the prosecutor presented insufficient evidence to convict her of criminal contempt. “To support a conviction for criminal contempt, two elements must be proven beyond a reasonable doubt. Those two elements are: (1) that the individual engage in a wilful disregard or disobedience of the order of the court, and (2) that the contempt must be clearly and unequivocally shown.” In re Contempt of O’Neil, 154 Mich App 245, 247; 397 NW2d 191 (1986) (citations omitted); see also DeGeorge v Warheit, 276 Mich App 587, 592; 741 NW2d 384 (2007). The defendant must have acted culpably. People v Little, 115 Mich App 662, 665; 321 NW2d 763 (1982).
Appellant argues that there was insufficient evidence that she willfully disregarded or disobeyed the family court’s order. Specifically, appellant argues that she did not act willfully because she was confused about the order and intended to consult with counsel before testing. Appellant cites this Court’s opinion in In re Contempt of Rapanos, 143 Mich App 483, 495; 372 NW2d 598 (1985), for the proposition that a person does not willfully violate an order when they act in good faith reliance on an attorney’s advice. Appellant argues that “[i]f good faith reliance on an attorney’s advice prevents willfulness then a good faith intent to seek legal advice. . . must also prevent the refusal from being willful.” This argument is unpersuasive.
As stated above, appellant cites Rapanos, 143 Mich App 483, for the proposition that a person does not willfully violate an order when they act in good faith reliance on an attorney’s advice. Rapanos, however, provides no such support. In Rapanos, this Court stated: “The federal courts have ruled that when an individual in good faith relies upon his attorney’s advice or interpretation of a court order, he cannot be found guilty of criminal contempt since the element of an intentional violation of the court’s order has not been established.” Id. at 495. Though the Rapanos Court referred to the federal rule, there is no indication that it adopted it. Further, precedent from our Supreme Court holds that it is no defense that the contemnor violated a court order on the advice of counsel. Brown v Brown, 335 Mich 511, 518-519; 56 NW2d 367 (1953); Chapel v Hull, 60 Mich 167, 175; 26 NW 874 (1886). Moreover, even if the federal rule was applicable, appellant has not cited any authority to support an extension of the rule to situations where an individual refuses because he or she intends to seek the advice of counsel. Accordingly, appellant’s argument is without merit.
The evidence supports the family court’s finding. There is no dispute that an order was entered on January 14, 2011, requiring appellant to submit to random drug testing at the request of the probation department. The probation department then made such a request, and appellant refused. Grohman testified that she did not show appellant a copy of the order; however, Grohman stated that she spoke with appellant and that appellant was aware of the order. Alcala was present when Grohman spoke with appellant and requested appellant take a drug test. Alcala stated that Grohman explained to appellant that there was a court order and that appellant appeared to understand. Thus, there was competent evidence to support the family court’s finding that the elements of criminal contempt were proved beyond a reasonable doubt.
Affirmed.
K. F. Kelly, P.J., and Markey and Fort Hood, JJ, concurred.
Tyler previously pleaded guilty to a misdemeanor charge of larceny in a vacant building, MCL 750.359, and the prosecutor dismissed the home invasion and minor in possession of alcohol charges.
Tyler had not been tested for K2 before.
Grohman’s report shows the DHS began testing appellant in the abuse and neglect case on March 7, 2011. Two testing dates are listed for appellant’s abuse and neglect case, March 7, 2011, and September 29, 2011. Appellant tested positive for alcohol on March 7, 2011, and negative for all substances on September 29, 2011.
See also MCL 600.1009, which provides: “A reference to the former juvenile division of probate court in any statute of this state shall be construed to be a reference to the family division of circuit court.” | [
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Per Curiam.
Defendant appeals by right his convictions by a jury of three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 50 to 75 years in prison. We affirm defendant’s convictions but remand for correction of the sentencing information report and resentencing.
I. EVIDENCE OF PRIOR ASSAULT
Defendant first argues that the trial court abused its discretion by ruling inadmissible evidence regarding a sexual assault that the victim’s then stepfather perpetrated on her about one year before the instant offenses. The Stepfather had pleaded guilty to reduced charges of two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d, and one count of CSC-II, and was sentenced to 10-15 years in prison. The trial court reviewed the police reports in the instant case and those from the earlier case and ruled that under the rape- shield statute, MCL 750.520j, the defense could not inquire into the prior case involving the victim.
Defendant argues that the evidence was admissible under exceptions to the rape-shield statute for sources of disease and to show an alternate source of the victim’s age-inappropriate sexual knowledge. He also contends that the probative value of this evidence outweighed any prejudicial effect. Further, defendant asserts the trial court’s ruling denied him his constitutional the right to present a defense and confront his accusers. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo both constitutional claims and preliminary questions of law regarding admissibility of evidence. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010); People v Pipes, 475 Mich 267, 274; 715 NW2d 290 (2006). We review the trial court’s ultimate decision regarding admissibility of evidence for an abuse of discretion. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). An abuse of discretion occurs when trial court’s decision is outside the range of principled outcomes. People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011).
B. ANALYSIS
We conclude the proposed evidence was not relevant, MRE 401; therefore, it was not admissible, MRE 402. Moreover, the trial court did not abuse its discretion by excluding the evidence because any marginally probative value of the evidence was substantially outweighed by the danger of unfair prejudice or confusion of the issues. MRE 403; People v Ackerman, 257 Mich App 434, 442; 669 NW2d 818 (2003). Finally, defendant’s consti tutional rights to present a defense and confront the witnesses against him were not violated. People v Arenda, 416 Mich 1, 8; 330 NW2d 814 (1982) (stating that the right to confront and cross-examine witnesses does not include a right to cross-examine regarding irrelevant issues).
The rape-shield statute, MCL 750.520j, provides:
(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
Similarly, MRE 404(a)(3) provides an exception to the general rule excluding character evidence for, in a case involving criminal sexual conduct (CSC), “evidence of the alleged victim’s past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease . . . .”
The rape-shield statute “ ‘bars, with two narrow exceptions, evidence of all sexual activity by the complainant not incident to the alleged rape.’ ” People v Adair, 452 Mich 473, 478; 550 NW2d 505 (1996), quoting People v Stull, 127 Mich App 14, 17; 338 NW2d 403 (1983). Because the statute excludes evidence that in mostreases would be only minimally relevant, the statute’s prohibitions do not deny or significantly di minish a defendant’s right of confrontation. Arenda, 416 Mich at 11. Moreover, evidence of a complainant’s sexual history also “is usually irrelevant as impeachment evidence because it has no bearing on character for truthfulness.” Adair, 452 Mich at 481, citing MRE 608. This is especially so in this case, given that the evidence was not intended to show “bias, motive, or a pattern of false accusations . ...” Id. at 481 n 5. Under the statutory language, if one of the exceptions in the statute applies, the trial court must determine whether the inflammatory or prejudicial nature of the evidence “outweigh[sJ” its probative value. MCL 750.520j.
The evidence defendant sought to admit concerning the victim’s prior sexual experience did not fit within either of the narrow exceptions provided by the rape-shield statute. MCL 750.520j(1). The statute was enacted to prohibit inquiry into a victim’s prior sexual encounters, which were historically used by defendants charged with CSC involving an adult in an effort to prove the defense of consent. The statute reflects a legislative policy determination that sexual conduct or reputation regarding sexual conduct as evidence of character and for impeachment, while perhaps logically relevant, is not legally relevant. People v Hackett, 421 Mich 338, 346; 365 NW2d 120 (1984). Although consent is not a relevant defense to a CSC charge involving an underage minor, Michigan courts have applied the rape-shield statute in cases involving child victims. See Arenda, 416 Mich at 6, 13; Benton, 294 Mich App at 197-199; People v Morse, 231 Mich App 424, 430; 586 NW2d 555 (1998); People v Garvie, 148 Mich App 444, 448-449; 384 NW2d 796 (1986).
Although the proffered evidence does not fit within one of the rape-shield exceptions, in limited situations evidence the statute excludes may nevertheless be relevant and admissible to preserve a defendant’s constitutional right of confrontation. Hackett, 421 Mich at 348-349; Benton, 294 Mich App at 197. Our Supreme Court has directed that trial courts inform the exercise of their discretion in regard to such a constitutional claim by conducting an in camera hearing. Hacket, 421 Mich at 349. In this case, defendant asserts that evidence of the prior assault was relevant and admissible as an alternative explanation for the victim’s inappropriate sexual knowledge. The trial court reviewed police reports of the earlier offenses and heard arguments of counsel at a bench conference and on the record. As the prosecution notes, the only similarity between the two cases was that both involved anal and vaginal penetration. The two cases were certainly not “significantly similar.” See Morse, 231 Mich App at 437. In addition, defendant’s theory of relevance was just that. The victim was 12 years old when she testified in this case about what occurred when she was almost 8 years old. It is pure speculation to suggest (1) that the victim’s knowledge of sexual matters was inappropriate and (2) that the victim’s knowledge of sexual matters derived from an experience in her life a year before the instant offenses. So, the evidence is not at all probative of the victim’s credibility. Its admission would have only created “a real danger of misleading the jury” and “an obvious invasion of the victim’s privacy.” Arenda, 416 Mich at 12. In sum, the record indicates that the trial court balanced the rights of the victim and defendant, as required by Morse, 231 Mich App at 433, and its ruling excluding the evidence was well within the range of principled outcomes, Benton, 294 Mich App at 195.
II. HEARSAY
Defendant next argues that the trial court abused its discretion by admitting statements the victim made to Dr. Harry Frederick, a board-certified emergency physician and medical director of the Saginaw Child Advocacy Center. Frederick was qualified as an expert in emergency medicine and child sexual examinations. The instant offenses were alleged to have occurred between December 25, 2007, and January 1, 2008. Frederick examined the then eight-year-old victim on January 22, 2008. The victim made statements implicating defendant in the offenses while Frederick questioned her regarding her history. Defendant contends the statements were not necessary to medical diagnosis or treatment, and that the statements were not trustworthy. The prosecution disputes defendant’s claims, and argues that if error occurred, it was harmless. We conclude that the trial court did not abuse its discretion by admitting the hearsay evidence.
A. STANDARD OF REVIEW
We review the trial court’s decision to admit evidence for an abuse of discretion. Burns, 494 Mich at 110. But we review de novo preliminary questions of law regarding whether a statute or evidentiary rule applies. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). The trial court’s decision is an abuse of discretion when the result is outside the range of principled outcomes. Benton, 294 Mich App at 195.
B. ANALYSIS
MRE 803(4) provides an exception to the general rule excluding hearsay for statements made for purposes of medical treatment or medical diagnosis in connection with treatment: “Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis or treatment” are not excluded by the hearsay rule.
All exceptions to the hearsay rule are justified because of the belief that the statements are made under circumstances in which they are both necessary and inherently trustworthy. People v Meeboer (After Remand), 439 Mich 310, 322; 484 NW2d 621 (1992). The “rationale for MRE 803(4) is the existence of (1) the self-interested motivation to speak the truth to treating physicians in order to receive proper medical care, and (2) the reasonable necessity of the statement to the diagnosis and treatment of the patient.” Id. In cases of suspected child abuse, statements the child makes may be admitted under this exception when the totality of circumstances surrounding the statements supports that they are trustworthy. Id. at 323-324. Factors that may be part of a trustworthiness analysis include:
(1) the age and maturity of the declarant, (2) the manner in which the statements are elicited (leading questions may undermine the trustworthiness of a statement), (3) the manner in which the statements are phrased (childlike terminology may be evidence of genuineness), (4) use of terminology unexpected of a child of similar age, (5) who initiated the examination (prosecutorial initiation may indicate that the examination was not intended for purposes of medical diagnosis and treatment), (6) the timing of the examination in relation to the assault (the child is still suffering pain and distress), (7) the timing of the examination in relation to the trial (involving the purpose of the examination), (8) the type of examination (statements made in the course of treatment for psychological disorders may not be as reliable), (9) the relation of the declarant to the person identified (evidence that the child did not mistake the identity), and (10) the existence of or lack of motive to fabricate. [Id. at 324-325 (citations omitted).]
Applying the Meeboer factors to the present case supports admission of the victim’s statements under MRE 803(4). Unlike the Meeboer companion case of People v Craft, in which the victim was four, the victim in this case was nearly eight when the abuse occurred and eight when Frederick examined her. She was mature enough to relate the details to the doctor and others. Frederick did not use leading questions to elicit the statements. The victim also phrased her statements in childlike terms such as, “Scott put his pee-pee in her, um, butt and in her private part, and that... it hurt.” Although the prosecution initiated the examination and it may have been at least in part to investigate an alleged sexual assault, this factor is not dispositive. See Meeboer, 439 Mich at 333-334. Furthermore, Frederick’s examination of the victim was done when the child was still suffering from emotional pain and distress from the incident. The examination was medical, not psychological. Nothing indicates that the victim mistook defendant’s identity or had a motive to fabricate.
As discussed in Meeboer, 439 Mich at 329-330, statements of identification in child sexual abuse cases serve several important purposes. The doctor can assess and treat any pregnancy or sexually transmitted disease, make referrals for other treatment, including counseling, and structure the examination to the “exact type of trauma the child recently experienced.” Id. at 329. The doctor can also assess whether the child will be returning to an abusive home. In this case, the attacker’s identity was important because he was a family friend who managed to take the child with him more than once. Generally, identification of the assailant “can be as important to the health of the child as treatment of the physical injuries that are apparent to the physician.” Id. at 328. In this case, the “identification of the assailant was reasonably necessary to the victim’s medical diagnosis and treatment.” Id. at 334. Indeed, the victim’s identification of defendant was an inseparable part of the examination when she volunteered it as her first statement to Frederick.
Finally, even if admission of the identification testimony were error, it does not require reversal. Frederick’s testimony regarding the victim’s out-of-court statement was cumulative of her in-court identification of defendant. “[T]he admission of a hearsay statement that is cumulative to in-court testimony by the declarant can be harmless error, particularly when corroborated by other evidence.” Gursky, 486 Mich at 620. In this case, the possibility of prejudice is diminished because the hearsay was cumulative and because the victim-declarant was subject to cross-examination at trial. Id. at 621-623. Further, identity was not at issue in this case; defendant was the only person to take the victim and her cousin to his apartment to make cookies, and he was well known to the family. For all these reasons, even if Frederick’s testimony regarding the victim’s statements were admitted in error, reversal is not warrant. See Lukity, 460 Mich at 495-496 (stating that evidentiary error does not warrant reversal if, when assessed in the light of the other properly admitted evidence, it does not affirmatively appear more probable than not that a different outcome would have resulted without the error).
III. OTHER ACTS EVIDENCE
Defendant argues that he was denied due process and a fair trial when the trial court abused its discretion by admitting evidence of defendant’s 2009 Arizona conviction for attempted molestation of a child and testimony by defendant’s former stepdaughter that he sexually assaulted her in July 2007 when she was 13 years old. Defendant contends that the evidence was not relevant or similar enough to show a common scheme, plan, or system, and that any minimal probative value was outweighed by its prejudicial effect. The prosecution disputes these arguments and contends that the trial court properly admitted the evidence under MCL 768.27a, which permits evidence of other offenses against minors. We conclude that the trial court did not abuse its discretion and that defendant was not denied a fair trial.
A. STANDARD OF REVIEW
We review the trial court’s decision to admit evidence for an abuse of discretion. Burns, 494 Mich at 110. But we review de novo preliminary questions of law regarding whether a statute or evidentiary rule applies, or as defendant claims, constitutional protections require exclusion of evidence. Benton, 294 Mich App at 195. The trial court’s decision is an abuse of discretion when the result is outside the range of principled outcomes. Id.
B. ANALYSIS
MCL 768.27a(1) provides in pertinent part:
Notwithstanding section 27,[ ] in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.
Our Supreme Court held in People v Watkins, 491 Mich 450, 455, 472; 818 NW2d 296 (2012), that MCL 768.27a and MRE 404(b) irreconcilably conflict, but that the Legislature intended the statute, a valid enactment of substantive law, to supersede the court rule. Watkins, 491 Mich at 455, 471-475. Evidence relevant because it shows propensity is admissible under MCL 768.27a whereas evidence relevant only because it show propensity is excluded by MRE 404(b). Watkins, 491 Mich at 470-472. But the Watkins Court held that evidence otherwise admissible under MCL 768.27a still remains subject to the requirements of MRE 403. Watkins, 491 Mich at 481. MRE 403 states that although it is relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
The Watkins Court provided guidance to trial courts in applying MCL 768.27a and the balancing test of MRE 403. First, the propensity inference of the evidence must be weighed in favor of the evidence’s probative value. Watkins, 491 Mich at 486-487. Second, the Court provided an illustrative, nonexhaustive list of factors that may lead a trial court to exclude evidence under MRE 403:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony. [Watkins, 491 Mich at 487-488.]
In the present case, the trial court applied the proper standard by asking whether the evidence was more prejudicial than probative. Considering defendant’s July 2007 assaults on his stepdaughter, the trial court correctly found that these were similar to the present crimes. Defendant took the other victim to his apartment, asked her to watch a movie, and penetrated her anally and then vaginally. He also did this again a few days later. Defendant threatened both victims with harm to them or their families if they told. The difference in ages between the two victims (the other victim was thirteen), is not very material. Less than six months elapsed between the two crimes. The evidence of the similar assault against the other victim was very probative and important to the prosecution’s case, especially because defendant was able to claim a lack of physical evidence of sexual assault based on Frederick’s examination. Also, the passage of time had faded the victim’s memory regarding some details. The challenged evidence was relevant because it tended to show that it was more probable than not that the minors were telling the truth. People v Mann, 288 Mich App 114, 118; 792 NW2d 53 (2010). Our review of the record reveals that the trial court carefully weighed pertinent factors in deciding to admit the evidence. The court also gave a limiting instruction regarding evidence of other crimes. See CJI2d 20.28a. The trial court’s decision was within the range of principled outcomes and therefore not an abuse of discretion. Benton, 294 Mich App at 195.
The trial court also did not abuse its discretion by admitting evidence of defendant’s 2009 Arizona conviction for attempted molestation of a child. A certified copy of the conviction was admitted as an exhibit but details of the conviction were not provided. Clearly, the instant offenses and the Arizona conviction were “of the same general category,” People v Mardlin, 487 Mich 609, 622-623; 790 NW2d 607 (2010), because they involve sex crimes (or attempted sex crime's) against children. Our Legislature has decided that evidence of other sexual assaults on children is relevant in a case in which a defendant is charged with committing a sexual offense against a minor. MCL 768.27a(1). Such allegations (or here, charged crimes and convictions) do tend to make the complainant’s story more believable by showing propensity to commit the charged offense. See Watkins, 491 Mich at 492. The Arizona conviction was prejudicial but not unfairly prejudicial. There was no danger of confusion of the issues, misleading the jury, undue delay, or other considerations mentioned in MRE 403. Because defendant went to Arizona after committing the assaults in Michigan, the conduct underlying the 2009 Arizona conviction would not have been too far removed temporally from the instant offenses in Michigan. Further, because there was a conviction, there is no lack of reliability regarding the evidence. Thus, although the details of the crimes cannot be compared, we conclude that the trial court did not abuse its discretion by admitting the evidence in light of the various factors regarding admissibility under MCL 768.27a and MRE 403. Watkins, 491 Mich at 487-488.
On the basis of the foregoing, we conclude that the other acts evidence was properly admitted, and defendant was not denied his due process right to a fair trial.
IV COMPULSORY PROCESS CLAIM
Defendant filed a pretrial motion to compel the testimony of Dr. Duane Penshorn, who examined the victim on January 13, 2008. Penshorn moved to Texas at some point before trial. The trial court directed the prosecution attempt to produce him, or his report could be admitted in evidence at trial. The defense also proposed to have Penshorn testify by telephone. Although Penshorn apparently agreed to testify by telephone, the prosecution noted that MCR 6.006 might not permit it. The trial court ruled that MCR 6.006 would not permit telephonic testimony because the court did not have two-way interactive video technology. In light of this ruling, the parties stipulated the admission of Penshorn’s report.
A. STANDARD OP REVIEW
We review the trial court’s decision regarding evidence for an abuse of discretion. Burns, 494 Mich at 110. We review de novo questions of law related to the admission or exclusion of evidence. Id.; Benton, 294 Mich App at 195. The trial court abuses its discretion when the result is outside the range of principled outcomes. Benton, 294 Mich App at 195.
B. ANALYSIS
Even if the trial court abused its discretion by not allowing Penshorn to testify by telephone, the error does not warrant reversal.
Defense counsel wanted Penshorn produced because he examined the victim on January 13, 2008, a week before Frederick examined her on January 22, 2008, and both doctors found no physical evidence of sexual abuse. Penshorn’s report stated that he found “slight diffuse redness” of the victim’s external vulva, but no “obvious scarring or trauma.”
Frederick testified at trial that during his examination of the victim he found a little nonspecific erythema, or redness, of the external genitalia. But these findings were not significant regarding sexual abuse. Frederick explained that after 7 to 10 days, redness would have no meaning because the tissue would heal very fast. The victim had no changes to her hymen indicative of sexual abuse, but Frederick noted the hymen could also heal relatively quickly, within four weeks, or it might he left with a “notch.” Frederick found no indication of a healed injury. The victim’s anal area was also normal, hut any small tears to the anus would have healed quickly, within days. In sum, Frederick found no physical evidence of sexual abuse.
Frederick also testified that the absence of physical findings did not necessarily negate sexual abuse because physical evidence of abuse was found in less than 17% of victims, or as low as 4% after 7 to 14 days. Physical findings would be found in the anal area in only 1 in a 1,000 cases after a similar time lapse.
MCL 767.40a(1) requires that the prosecution attach to the information a list of eyewitnesses and witnesses who might he called at trial. If requested by the defense, the prosecution or law enforcement must provide reasonable assistance to locate and serve process on witnesses; prosecution objections must be raised in pretrial motions, and the trial court must hold a hearing to determine the reasonableness of the defense request. MCL 767.40a(5). See also People v Burwick, 450 Mich 281, 288-289; 537 NW2d 813 (1995). The trial court has discretion to fashion a remedy for the prosecution’s noncompliance with the discovery statute. People v Williams, 188 Mich App 54, 58-59; 469 NW2d 4 (1991). To warrant reversal, defendant must show that he was prejudiced by noncompliance with the statute. Id. at 59; Burwick, 450 Mich at 295-297; People v Hana, 447 Mich 325, 358 n 10; 524 NW2d 682 (1994).
MCL 767.93(1) allows the court to issue a certificate to obtain the presence of an out-of-state material witness. Further, MCL 767.40a(4) requires a showing of good cause for removing a witness from the prosecution’s witness list. Forgetting to contact or subpoena a witness is likely not “good cause.” Once a witness is endorsed under MCL 767.40a(3), the prosecution must use due diligence to produce the witness. People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004). If the court finds a lack of due diligence, the court may give a “missing witness” instruction stating that the jury may infer the witness’s testimony would have been favorable to the defense. Id. In this case, the trial court made no finding regarding the prosecution’s diligence. Furthermore, the defense did not request a “missing witness” instruction and instead agreed to allow admission of Penshorn’s report. Finally, the trial court’s ruling under MCR 6.006 was technically correct. For trials, the rule only allows the court to use two-way interactive video technology to take testimony with the consent of both parties. MCR 6.006(C)(2).
But assuming for the purpose of analysis that the prosecution was not duly diligent in producing Penshorn, and further assuming that the trial court abused its discretion by not permitting Penshorn to testify over the telephone, defendant has not established he suffered prejudice as a result. First, Penshorn’s report that was admitted in evidence was favorable to the defense. Defense counsel was able to argue from it that Penshorn found no physical evidence of sexual assault at a point in time closer to the alleged assault than Freder ick’s examination. Second, defendant makes no argument regarding how questioning Penshorn in court or over the telephone would have provided any more information to the jury than was provided in his report. Clearly, presenting live testimony is an important factor for determining whether or not a witness is credible, but here the information in Penshorn’s report was undisputed. In sum, defendant has failed to establish the prejudice necessary to warrant reversal regarding the alleged failings of the prosecution under MCL 767.40a and the trial court’s alleged abuse of discretion in fashioning a remedy. Hana, 447 Mich at 358 n 10; Williams,. 188 Mich App at 58-59. Error in the admission or exclusion of evidence does not warrant reversal if, in light of the other properly admitted evidence, it does not affirmatively appear more probable than not that a different outcome would have resulted without the error. MCL 769.26; Gursky, 486 Mich at 619. Defendant has not'established outcome-determinative error that warrants reversal.
V DOUBLE JEOPARDY
Defendant argues that his conviction for CSC-II was not supported by the evidence and that it violated double jeopardy protections. The prosecution argues that because CSC-I and CSC-II each require proof of a fact that the other does not, the prohibition against double jeopardy is not violated by convicting a defendant of both. We review this claim de novo. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).
The Double Jeopardy Clause, US Const, Am V, protects against “(1) multiple prosecutions for the same offense after acquittal or conviction; and (2) multiple punishments for the same offense.” People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). See also Const 1963, art 1, § 15. In People v Smith, 478 Mich 292, 316; 733 NW2d 351 (2007), the Court held that when the Legislature has clearly expressed the intent for multiple punishments, the prohibition against double jeopardy is not violated. When no such intent is clearly expressed, the “same elements” test of Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932) should be applied. Smith, 478 Mich at 296, 316. The Blockburger test looks at the statutory elements of the offenses and asks whether each offense requires proof of a fact that the other does not. Nutt, 469 Mich at 576. This Court has previously applied the Blockburger test to a double jeopardy challenge of multiple CSC convictions of different grades. See People v Garland, 286 Mich App 1, 5-7; 777 NW2d 732 (2009) (holding that a single act of sexual penetration supported conviction of both CSC-I and CSC-III because each offense contains an element that the other does not).
Application of the Blockburger test to defendant’s double jeopardy claim requires that we reject it. Defendant was convicted of three counts of CSC-I: two counts based on vaginal penetration and one count based on anal penetration. Defendant was also convicted of one count of CSC-II. The elements of CSC-I in this case are: (1) the defendant engaged in sexual penetration, (2) with a person under 13 years of age. MCL 750.520b(1)(a). “Sexual penetration” means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body. . . .” MCL 750.520a(r). The elements of CSC-II are: (1) the defendant engaged in sexual contact, (2) with a person under 13 years of age. MCL 750.520c(1)(a). The statutory definition of “sexual contact,” pertinent here, includes “the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that touching can reasonably be construed as being for the purpose of sexual arousal or gratification, [or] done for a sexual purpose. . . MCL 750.520a(q). “Intimate parts” includes “the primary genital area, groin, inner thigh, buttock, or breast. . . MCL 750.520a(f).
On the basis of the Legislature’s definitions of “sexual penetration” and “sexual contact,” CSC-I and CSC-II each require proof of a fact that the other does not. See People v Lemons, 454 Mich 234, 253-254; 562 NW2d 447 (1997) (holding that CSC-II is a cognate but not lesser-included offense of CSC-I). The differing elements for the offenses of CSC-I and CSC-II demonstrate the Legislature’s intent to authorize separate convictions and punishments for these offenses. “Sexual penetration” is an element of CSC-I but not CSC-II. CSC-II requires that “sexual contact” be done for a “sexual purpose,” an element not included in CSC-I. Under Blockburger, conviction and punishment for both CSC-I and CSC-II does not violate double jeopardy.
Defendant’s argument that the evidence did not support his conviction of CSC-II lacks merit. The same evidence that supported defendant’s convictions of CSC-I would also support, on the facts of this case, conviction for CSC-II. The jury was properly instructed regarding the elements of each offense, and the evidence was sufficient to support multiple convictions.
VI. INTERSTATE AGREEMENT ON DETAINERS
Defendant argues that under the Interstate Agreement on Detainers (IAD), MCL 780.601, he should have been brought to trial in Michigan within 180 days after he wrote to the prosecutor on May 17, 2010. The prosecution asserts it complied with the IAD by bringing defendant to trial on June 5, 2012, within 180 days after receiving the certificate required by the IAD on December 28, 2011. The interpretation and application of the IAD is a question of law that we review de novo. People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009).
The IAD provides that an inmate incarcerated in one state may be transported to another for trial on charges in the receiving state. The main purpose of the statute, stated in Article I, is to encourage speedy disposition of pending charges and prevent undue interference with treatment and rehabilitation programs. See People v Wilden (On Rehearing), 197 Mich App 533, 535; 496 NW2d 801 (1992). Article III(a) of the IAD sets forth the procedure for a prisoner against whom a detainer is filed to notify the prosecutor in the detaining state of his place of imprisonment and to request final disposition of the charges. That subpart provides:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party-state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. [MCL 780.601, art III(a) (Emphasis added).]
In the present case, the charges were initiated in April 2008. Apparently while incarcerated in the state of Arizona, defendant sent a letter to the prosecutor asking what warrants were outstanding and how to take care of them. The prosecution acknowledged receiving this letter from defendant on May 17, 2010, but apparently did not respond. Defendant then wrote to the warden of the Arizona prison where he was incarcerated on September 27, 2011. The deputy warden wrote back on September 29,2011, that “[s]ince the case is for a probation violation and not untried charges the IAD does not apply.” Defendant then wrote to the prosecutor and the St. Clair County Clerk on November 2, 2011, demanding final disposition of the charges under the IAD. This letter gave defendant’s place of imprisonment and date of the alleged violations. Defendant also wrote to the deputy warden of the Arizona prison where he was incarcerated demanding under the IAD that the warden process the documents required to effectuate his IAD request. After an unsatisfactory response, defendant again repeated his request to prison authorities in correspondence dated December 8, 2011. Finally, on December 19, 2011, an Arizona prison official sent to the St. Clair prosecutor the necessary IAD forms, including the certificate referred to in Article III(a) of the IAD, which provided information regarding defendant’s term of commitment, time served, time remaining, and good time earned. The Arizona letter transmitting the required IAD forms is date-stamped “received” on December 28, 2011, by the St. Clair prosecutor.
Assuming that the IAD applies to this case, we note the prosecution correctly argues that commencing defendant’s trial on June 5, 2012, complied with the 180-day time requirement of MCL 780.601, art III(a). Swafford, 483 Mich at 13-14. The plain language of the IAD provides that an “untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner . . . shall be brought to trial within one hundred eighty days after” the defendant “shall have caused to be delivered to the prosecuting officer . .. written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint. . . .” MCL 780.601, art 111(a). However, the defendant’s request for disposition “shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence,” and other information required by Article 111(a). In this case, defendant’s demand for disposition of the untried information or complaint, accompanied by the Article III (a) certificate, was not “caused to be delivered” to the prosecutor until December 28, 2011. This is the date on which the 180-day timeframe of the LAD commenced. See Fex v Michigan, 507 US 43, 52; 113 S Ct 1085; 122 L Ed 2d 406 (1993) (holding “that the 180-day time period in Article III (a) of the LAD does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him”).
Our Supreme Court has similarly interpreted the nearly identical language, “causes.to be delivered,” found in Michigan’s intrastate 180-day rule that is set forth in MCL 780.131 and MCR 6.004(D), regarding untried charges that are pending against Michigan prison inmates. People v Lown, 488 Mich 242, 260, 262; 794 NW2d 9 (2011) (holding that the 180-day period of MCL 780.131 begins “on the day after the prosecutor receives the required notice from the [Department of Corrections]”). See also People v Williams, 475 Mich 245, 256 n 4; 716 NW2d 208 (2006). Further, the “statutory trigger” of “notice to the prosecutor of the defendant’s incarceration and a departmental request for final disposition of the pending charges,” applies equally to MCR 6.004(D). Williams, 475 Mich at 259-260.
Consequently, defendant’s claim that he was not brought to trial within the time limit required by the LAD is without merit.
VII. SENTENCING ISSUES
A. STANDARD OF REVIEW
The interpretation of the sentencing guidelines and the application of facts to them are legal questions that we review de novo. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). But a trial court’s factual findings are reviewed for clear error and must be supported by a preponderance of the evidence. Id. Whether the facts, as found, are adequate to sustain a particular score is a question of statutory interpretation, reviewed de novo. Id. We review de novo constitutional challenges to the sentencing guidelines. People v Drohan, 475 Mich 140, 146; 715 NW2d 778 (2006).
B. OFFENSE VARIABLE 11
Defendant argues that the trial court improperly scored offense variable (OV) 11, MCL 777.41, at 50 rather than 25 points because evidence supported only one “additional” penetration beyond the sentencing offenses. The prosecution agrees that OV 11 should have been scored at 25 points, but asserts that resentencing is not required because the scoring error would not have altered the applicable minimum-sentence guidelines range. See MCL 777.62.
If the facts were as represented by the prosecution, we would agree that its concession of error regarding the scoring of OV 11 would not warrant remand for resentencing. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). “Where a scoring error does not alter the appropriate guidelines range, resentencing is not required.” Id. But the sentencing information report in the trial court file and the transcript of the sentencing proceeding both indicate that defendant’s total OV score was 120 points, including the 50 point score for OV 11. Applying the stipulated correct OV 11 score of 25 points would reduce defendant’s OV level from VI to V and change the guidelines’ recommended minimum-sentence range to 225 months to 750 or life. MCL 777.62; MCL 769.12. While the 50 year (600 months) minimum sentence that the trial court imposed is within the corrected guidelines range, resentencing is still required because a defendant is entitled to be sentenced based on accurate information. People v Jackson, 487 Mich 783, 793-794; 790 NW2d 340 (2010); Francisco, 474 Mich at 89-92. Although the record indicates that the trial court likely would have imposed the sentence it did regardless of any deviation in the guidelines scoring or recommended minimum-sentence range, the trial court did not clearly say so. See Francisco, 474 Mich at 89 n 8. Consequently, we must remand for resentencing based on corrected sentence guidelines. Jackson, 487 Mich at 793-794; Francisco, 474 Mich at 89-92.
C. SIXTH AMENDMENT CHALLENGE
Defendant argues, citing Alleyne v United States, 570 US_; 133 S Ct 2151; 186 L Ed 2d 314 (2013), that judicial fact-finding permitted by Michigan’s sentencing guidelines violates the Sixth Amendment. He argues that the recommended minimum-sentence range derived from Michigan’s sentencing guidelines is essentially a “mandatory minimum sentence” comparable to those struck down in Alleyne. We disagree.
In People v Herron, 303 Mich App 392, 399; 845 NW2d 533 (2013), this Court rejected the claim that under Alleyne “judicial fact-finding using Michigan’s sentencing guidelines ... as a guide to determine a minimum term of an indeterminate sentence from a recommended range violates the Sixth and Fourteenth Amendments of the United States Constitution.” Rather, judicial fact-finding and the sentencing guidelines inform the trial court’s sentencing discretion within the maximum determined by statute and the jury’s verdict. Herron, 303 Mich App at 403. Because judicial fact-finding under Michigan’s sentencing guidelines does not establish a mandatory minimum sentence but only informs the exercise of judicial discretion, the fact-finding does not violate due process or the Sixth Amendment’s right to a jury trial. Id. at 403-404. We must follow Herron, MCR 7.215(J)(1); consequently, we reject defendant’s constitutional challenge to Michigan’s sentencing guidelines.
VIIL SUMMARY
The trial court did not abuse its discretion by ruling inadmissible evidence of a sexual assault on the victim by her then stepfather that occurred about one year before the instant offenses, by admitting statements the victim made to Frederick, or applying MCL 768.27a and the balancing test of MRE 403 to admit evidence of defendant’s Arizona conviction and testimony about a 2007 assault on another victim. Defendant was not denied his right to present a defense or confront his accusers; defendant received a fair trial.
With respect to the prosecution’s alleged failure to comply with MCL 767.40a by not producing Penshom in person and the trial court’s alleged abuse of discretion in failing to permit Penshorn to testify by telephone at trial, we conclude that defendant has not established that these alleged errors were outcome determinative. Consequently, these claims do not warrant reversal.
Defendant’s various constitutional and statutory claims also lack merit. Because CSC-I and CSC-II each require proof of a fact that the other does not, defendant’s convictions of both on the same facts do not violate double jeopardy. The prosecution complied with the IAD by bringing defendant to trial within 180 days of receiving the necessary Article 111(a) documents from Arizona authorities. And, judicial fact-finding under Michigan’s sentencing guidelines does not violate the Sixth or Fourteenth Amendments of the United States Constitution.
Last, because the prosecution concedes that OV 11 was erroneously scored at 50 points rather than 25 points, and correction of this error reduces defendant’s sentencing guidelines recommended minimum-sentence range to 225 to 750 months or life, we must remand for resentencing on the basis of accurate information.
We affirm defendant’s convictions but remand for correction of the sentencing information report and resentencing. We do not retain jurisdiction.
Markey, P.J., and Sawyer and Wilder, JJ., concurred.
This is in contrast to MRE 403, which provides that relevant evidence may be excluded if its probative value is “substantially outweighed” by prejudicial considerations. Adair, 452 Mich at 481.
Section 27, MCL 768.27, provides for the admission of other acts evidence using language similar to that of MRE 404(b)(1).
MRE 404(b)(1) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.”
In discussing this issue, the parties do not state when or if Michigan authorities ever filed with authorities in Arizona a “detainer” regarding the instant charges. As the plain language of the IAD indicates, a detainer from the charging state is required to be filed with the custodial state for its provisions to apply. See People v Gallego, 199 Mich App 566, 574; 502 NW2d 358 (1993) (“A detainer must be lodged against a defendant for the IAD to apply.”) A “detainer” is generally a “written notification filed with the institution in which a prisoner is serving a sentence advising that the prisoner is wanted to face pending charges in the notifying state.” Id. Holds placed in the Law Enforcement Information Network are generally “insufficient to activate the IAD.” Id. The certificate of inmate status filed by the Arizona Department of Corrections, which the prosecutor received in this case on December 28, 2011, provides no information regarding detainers Michigan filed with Arizona authorizes. We assume in analyzing this issue that a detainer regarding these charges was filed with Arizona authorities, thus implicating compliance with the IAD.
We have not located evidence in the record that Michigan ever filed a detainer with Arizona authorities regarding these charges. See note 4 of this opinion.
Capitalization altered.
Our Supreme Court has held the defendant’s application for leave to appeal in Herron in abeyance pending its decision in People v Lockridge, 496 Mich 852 (2014). See People v Herron, 846 NW2d 924 (2014). | [
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Donofrio, J.
Plaintiff appeals as of right the circuit court’s order denying its request for attorney fees under the Construction Lien Act, MCL 570.1101 et seq. Because the circuit court erroneously concluded that it was precluded from considering awarding attorney fees under MCL 570.1118(2), we vacate the portion of the order dealing with attorney fees and remand the case.
I. BASIC FACTS
This case arises from a construction contract that was entered into between plaintiff and defendant Lofts on the Nine, L.L.C., in May 2007. The contract called for the construction of a loft-style condominium building in Ferndale, Michigan, for the price of approximately $6 million and provided that “[a]ny Claim arising out of or related to the Contract” was to be submitted to arbitration. Plaintiff last provided labor or materials on April 24, 2009. Defendant had paid plaintiff almost $5.5 million, resulting in a deficiency of $626,163.73. As a result, plaintiff filed a claim of lien in the Oakland County Register of Deeds in June 2009.
Because of the deficiency, on November 25, 2009, plaintiff filed a complaint against defendant in circuit court, alleging three counts: breach of contract, foreclosure of lien, and unjust enrichment. Additionally, because the contract required that claims be submitted to arbitration, the parties stipulated to stay the proceedings at circuit court and proceeded with arbitration. At arbitration, defendant asserted claims of its own, alleging that it had incurred between $1.1 million and $1.5 million in damages because of faulty or incomplete work done by plaintiff.
On January 26,2012, the arbitrator issued his ruling. The arbitrator awarded plaintiff $626,163.72 for “[direct damages for work performed under the Construction Contract” and $9,895 for “ [r]eimbursement for additional Faucet Claim.” Thus, the total awarded on plaintiffs claims was $636,058.72. However, the arbitrator specifically declined to address plaintiffs request for attorney fees as a prevailing lien claimant under MCL 570.1118(2) and expressly “reserved for the Circuit Court” that issue. On defendant’s counterclaims, the arbitrator awarded defendant $185,238.36, resulting in a net award of $450,820.36 to plaintiff. Defendant shortly thereafter paid the net award amount plus interest to plaintiff.
On February 21, 2012, plaintiff filed a motion to lift the stay and confirm the arbitration award and requested attorney fees and costs under MCL 570.1118(2). Plaintiff asserted that it was a prevailing lien claimant and was entitled to attorney fees and costs totaling $310,125.25.
Defendant filed a response and argued that the motion should be denied in total because, at the outset, it already had satisfied the arbitration award by paying plaintiff shortly after the arbitrator made his ruling. Furthermore, defendant argued that no attorney fees were warranted because once plaintiffs breach-of-contract claim was settled, it rendered plaintiffs lien-foreclosure claim moot. Defendant also argued that plaintiff could not be considered as prevailing in arbitration because defendant had reasonably disputed paying the final 10% of the contract price because of numerous contract breaches on plaintiffs behalf. Defendant noted that the $450,820.36 plaintiff ultimately was awarded was less than 70% of what plaintiff had claimed was owed in the claim of lien.
The circuit court denied plaintiffs motion in an opinion and order issued on April 24, 2012. With respect to the request for attorney fees, the circuit court rea soned as follows:
As [defendant] paid [plaintiff] the amount [defendant] owed pursuant to the Arbitration Award on February 16, 2012 and [plaintiffs] lien foreclosure claim was not adjudicated by this Court or the Arbitrator.. . , [plaintiff] cannot be deemed to be a prevailing lien claimant in this matter. Therefore, the Court does not have the discretion to award [plaintiff] its attorney fees and costs under the Michigan Construction Lien Act.
II. STANDARD OF REVIEW
This Court reviews a circuit court’s decision on whether to award attorney fees under the Construction Lien Act for an abuse of discretion. C D Barnes Assoc, Inc v Star Heaven, LLC, 300 Mich App 389, 425; 834 NW2d 878 (2013). An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). Likewise, a court abuses its discretion when it makes an error of law. In re Waters Drain Drainage Dist, 296 Mich App 214, 220; 818 NW2d 478 (2012).
This Court also reviews issues of statutory interpretation de novo. The primary goal of judicial interpretation of statutes is to discern the intent of the Legislature by examining the plain language of the statute. The starting point in every case involving construction of a statute is the language itself. ... The court must consider the object of the statute in light of the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purposes of the statute. [C D Barnes, 300 Mich App at 407-408 (citations omitted).]
III. ANALYSIS
Generally, attorney fees are not recoverable unless a statute, court rule, or common-law exception to this general prohibition exists. Dessart v Burak, 470 Mich 37, 42; 678 NW2d 615 (2004).
Plaintiff sought to recover attorney fees under the Construction Lien Act. Specifically, MCL 570.1118(2) provides, in relevant part:
In an action to enforce a construction lien through foreclosure, the court shall examine each claim and defense that is presented and determine the amount, if any, due to each lien claimant or to any mortgagee or holder of an encumbrance and their respective priorities. The court may allow reasonable attorneys’ fees to a lien claimant who is the prevailing party.
The Construction Lien Act is remedial in nature and “sets forth a comprehensive scheme aimed at ‘protecting the rights of lien claimants to payment for expenses and . . . the rights of property owners from paying twice for these expenses.’ ” Stock Bldg Supply, LLC v Parsley Homes of Mazuchet Harbor, LLC, 291 Mich App 403, 406-407; 804 NW2d 898 (2011) (citation omitted). As such, it is to be “liberally construed to secure the beneficial results, intents, and purposes of this act.” MCL 570.1302(1).
The circuit court determined that it could not award attorney fees under this statute because plaintiff could not be considered a prevailing lien claimant. The court relied on the belief that the lien-foreclosure claim was not adjudicated by it or the arbitrator and concluded that it did “not have the discretion to award [plaintiff] its attorney fees and costs under the Michigan Construction Lien Act.” We disagree.
We conclude that this case is analogous to the situation presented in Bosch v Altman Constr Corp, 100 Mich App 289; 298 NW2d 725 (1980), in which this Court affirmed the award of attorney fees under the mechanics’ lien act. In Bosch, the plaintiff filed a lien for $8,215.08 for money owed on a construction contract. Id. at 292. A year later, the plaintiff filed an action in the circuit court to foreclose on the lien. Id. A few months after that, the plaintiff filed another suit against the defendant in the district court — this time alleging breach of contract. Id. at 293. Following a jury trial on the breach-of-contract claim, judgment was entered in favor of the plaintiff for $6,013.67. Id. After this judgment, the defendant tendered payment, but the plaintiff refused because he thought he was entitled to attorney fees as well. Id.
The Bosch circuit court then ordered the plaintiff to execute a discharge of the lien upon payment of the district court judgment, and on the morning of the circuit court trial, the defendant tendered a check to the plaintiff in the amount of the district court judgment plus interest. Consequently, the plaintiff signed a satisfaction of judgment and a discharge of the lien. In the circuit court, the plaintiff still asserted that he was owed attorney fees. The defendant argued that, because the lien was satisfied before trial commenced, the circuit court lacked the authority to award any attorney fees. Id. This Court disagreed with the defendant and stated:
We believe it would clearly violate the spirit of the mechanics’ lien statute to permit a lienee to force a lienor to accept payment of a lien claim just before the commencement of a lien foreclosure trial and thereby avoid a possible assessment for attorney fees. Under such a rule, a lienee could drag a lienor through costly pretrial proceedings in the hope of gaining a beneficial settlement without putting himself in jeopardy of paying the attorney fees of the lienor. Many a materialman, lacking in deep financial resources, would be seriously hampered in pursuing his legal remedies. The purpose of MCL 570.12 [the predecessor of MCL 570.1118(2)] is to avoid such a situation. [Id. at 296 (citation omitted).]
The facts in the instant case are remarkably similar to those in Bosch. Like the Bosch plaintiff, plaintiff here filed both a breach-of-contract claim and a claim for foreclosure of a lien against defendant. And as in Bosch, the amount that was owed under the contract/lien was established in a proceeding distinct from any actual lien-foreclosure proceeding. Notably, in both Bosch and our case, the amount finally determined to be owed was less than the initial amount claimed on the lien. And finally, the defendants in both cases paid the amount determined to be ultimately owed under the contract before any lien-foreclosure proceedings commenced. As a result, we conclude that the instant case is entitled to the same outcome as Bosch. Specifically, contrary to the circuit court’s view, plaintiffs substantially prevailing on the amounts it sought under the claim of lien made it a prevailing party under the Construction Lien Act, and the circuit court had the discretion under MCL 570.1118(2) to award attorney fees.
The fact that no foreclosure ever occurred is not pertinent. In addition to Bosch, this Court has already rejected this position in Solution Source, Inc v LPR Assoc Ltd Partnership, 252 Mich App 368; 652 NW2d 474 (2002). In Solution Source, the defendants argued that because the plaintiff had attempted to satisfy its judgment through garnishment instead of through foreclosure, the plaintiff could not use MCL 570.1118(2) to recover attorney fees. Id. at 377. This Court disagreed and, while noting that the statute is to be construed liberally in order to carry out its intended purpose of protecting lien claimants, determined that MCL 570.1118(2) “was not meant to be read in such a restrictive manner.” Id. at 378. The Court explained:
In stating that a lien claimant who is a prevailing party in an action to enforce a construction lien through foreclosure is entitled to attorney fees, we believe that MCL 570.1118(2) is simply distinguishing between an action based solely in contract and one based on a construction lien. These actions are distinct and separate and may be pursued simultaneously. [Id. (emphasis added).]
In this case, plaintiff did not solely seek recovery on a breach of contract claim: plaintiffs complaint listed both a contract claim and a foreclosure-of-lien claim. As explained previously, the fact that the amount owed on the contract, and consequently the proper amount of the lien, was determined in a separate proceeding is of no consequence.
We agree with the Solution Source Court, which, while relying on the reasoning in Bosch, noted that the entire purpose of the Construction Lien Act could be thwarted if lienors were able to fight valid liens in the hope that the lien claimants would run out of resources to continue their pursuit and then only pay right before trial in an attempt to circumvent the attorney-fee provision of MCL 570.1118(2). Solution Source, 252 Mich App at 380-381. Accordingly, not allowing the award of attorney fees just because a lienor paid off a lien before a court actually ruled on a lien claimant’s claim of foreclosure would be contrary to the purpose of the act. See id. at 381 (stating that “satisfaction of a lien does not bar a lien claimant who is the prevailing party from recovering its appellate and postjudgment attorney fees incurred in connection with enforcement of its lien”); Bosch, 100 Mich App at 296.
Defendant’s and the circuit court’s reliance on H A Smith Lumber & Hardware Co v Decina, 480 Mich 987 (2007), is misplaced. In an order, our Supreme Court ruled in Decina that the subcontractor plaintiffs were not able to recover attorney fees under the Construction Lien Act because they did not “prevail on [their] lien foreclosure action.” Id. at 988. But the facts in Decina are easily distinguishable because the subcontractors had liens that never attached to the property. H A Smith Lumber & Hardware Co v Decina, 258 Mich App 419, 424, 431; 670 NW2d 729 (2003), vacated in part 471 Mich 925 (2004). The liens could not attach because the homeowners, who contracted with the general contractor, had paid the entire contract amount. Decina, 258 Mich App at 424; see also MCL 570.1107(1) and (6) (indicating that any hen amount cannot exceed the amounts owed on the original construction contract). Accordingly, the Supreme Court aptly concluded that in light of no hen legally being able to attach to the property, it was impossible for the subcontractors to have prevailed on their hen claims, which is a prerequisite for being able to cohect attorney fees under MCL 570.1118(2).
In the present case, it is undisputed that the landowner, defendant, did not pay the full amount of the contract price to the general contractor, plaintiff. Thus, these facts are distinguishable from those in Decina, and there was no question that plaintiffs lien had, indeed, attached to the property. Thus, we conclude that the Supreme Court’s decision in Decina simply is not applicable.
Therefore, we hold that pursuant to Bosch and Solution Source, plaintiff was a prevailing lien claimant under MCL 570.1118(2). The fact that the lien amount was established by an arbitrator instead of a court or jury does not compel us to reach a different conclusion. As a result, we vacate the portion of the circuit court’s opinion and order denying plaintiffs request for attorney fees because the circuit court erroneously believed that it lacked discretion to award attorney fees. However, contrary to plaintiffs view, the circuit court is not required to award attorney fees on remand. Instead, on remand, the circuit court simply is to exercise its discretion in deciding whether to award attorney fees. MCL 570.1118(2) states that “[t]he court may allow reasonable attorneys’ fees to a lien claimant who is the prevailing party.” (Emphasis added.) It is well established that the use of the word “may” connotes permissive, not mandatory, action. AFSCME v Detroit, 267 Mich App 255, 260; 704 NW2d 712 (2005).
The portion of the circuit court’s order denying plaintiffs request for attorney fees is vacated, and we remand this case for proceedings consistent with this opinion. We do not retain jurisdiction. No costs awarded, as neither party prevailed in full on appeal. MCR 7.219.
Jansen, P.J., and Saad, J., concurred with Donofrio, J.
Plaintiff filed its claim of appeal on January 8, 2013, but our review of the record indicates that the final order in this case was not entered until January 23, 2013. Thus, plaintiff filed its claim of appeal prematurely. In the interest of judicial economy, we treat the claim of appeal as an application for leave to appeal, which we grant. Wardell v Hincka, 297 Mich App 127, 133 n 1; 822 NW2d 278 (2012).
The other defendants are not implicated in this appeal, so our use of the term “defendant” will refer only to Lofts on the Nine, L.L.C.
It is not apparent why there was a $0.01 discrepancy between this amount and the amount noted on the claim of lien.
While defendant asserted that the amount awarded was less than 70% of the amount listed on the lien, our review shows that the amount awarded was actually 72% of the amount listed on the lien ($450,820.36/$626,163.73 = 0.720).
The former mechanics’ lien act, MCL 570.1 et seq., preceded the current Construction Lien Act. Jeddo Drywall, Inc v Cambridge Inv Group, Inc, 293 Mich App 446, 451; 810 NW2d 633 (2011).
In Bosch, the plaintiff received a judgment for $6,013.67, which was 73.2% of the amount it claimed on the lien. In our case, as noted earlier, plaintiffs arbitration award was 72.0% of the amount claimed on its lien.
The amounts owed on a contract and on a lien are inextricably linked. MCL 570.1107(1) provides that “[a] construction lien acquired pursuant to this act shall not exceed the amount of the lien claimant’s contract less payments made on the contract.” See also C D Barnes, 300 Mich App at 419, 427-428. And MCL 570.1107(6) provides that
[i]f the real property of an owner or lessee is subject to multiple construction liens, the sum of the construction liens shall not exceed the amount the owner or lessee agreed to pay the person with whom he or she contracted . . . less payments made by or on behalf of the owner or lessee ....
The Supreme Court’s order did not provide the background facts, so we refer to this Court’s prior opinion. | [
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Wilder, J.
Respondent U.S. Security Associates, Inc., appeals by leave granted a circuit court order reversing the decision by the Michigan Compensation Appellate Commission (MCAC) that claimant was disqualified from unemployment insurance benefits under MCL 421.29(1)(b). On appeal, respondent argues that the circuit court applied the incorrect standard when reviewing the agency’s decision and that claimant should be disqualified from benefits for violating respondent’s rules. We affirm.
i
Claimant worked for respondent as a security guard from September 21, 2008, to February 9, 2011, when respondent mailed her a notice of termination of employment for violating company rules and regulations on January 27, 2011.
Before the incident leading to her termination, on November 11, 2008, claimant signed an acknowledgement of respondent’s “Security Officer’s Guide,” which provided, in relevant part, that the “[Unauthorized use of client facilities or equipment, including copiers, fax machines, computers, the internet, forklifts and vehicles” may result in immediate termination.
While working at the Detroit Metropolitan Wayne County Airport in Concourse B, claimant was approached by an airline passenger seeking departure information. Claimant looked for that information on the computer near her post. Shortly after this incident, claimant received a call from the command center, and was informed that someone had anonymously complained about her use of the computer. Respondent drafted a disciplinary report, which claimant signed. Then, respondent told claimant she would be reassigned. But later, respondent reevaluated the incident and instead terminated claimant’s employment in the February 9 letter.
Claimant filed a claim for unemployment benefits, and a notice of determination denying her claim was issued on March 10, 2011. The notice provided:
You were terminated from US Security on 1/28/11 for accessing the client’s computer system which is a violation of company policy. You were aware of the policy.
It is found that you were fired for a deliberate disregard of your employer(s) interest. You are disqualified for benefits under [MESA, MCL 421.29(1)(b)].
Claimant filed an appeal of this notice of determination, and a hearing was conducted on July 13, 2011, by Administrative Law Judge Lawrence Hollens (ALJ). Claimant and respondent’s employment specialist, Aramis Brown, appeared at the hearing without counsel.
Brown first testified that claimant was terminated for accessing the client’s computer for flight information, which violated respondent’s rules and regulations. The ALJ asked claimant the following series of questions:
ALJ: They say you used a client computer.
Claimant: Yes.
ALJ: Is that true?
Claimant: Yes, it is.
ALJ: Why would you do that?
Claimant: I used the client computer to help a passenger out. I —
ALJ: Was that your job?
Claimant: To help the passengers, yes.
ALJ: And so you’re saying as part of your job, you would normally access the computer?
Claimant: Yes, I do.
ALJ: That would be normal for you to do?
Claimant: No.
ALJ: So why did you do something abnormal, if you see my problem?
Claimant: I did it to assist a passenger. That was the closest thing -
ALJ: Is there anything in the policy that says it’s okay to violate these rules so long as you’re assisting a passenger?
Claimant: No.
ALJ: And you admit it was in flight information.
Claimant: It was — yes, flight information.
Claimant further testified that she did not believe it was “a problem” to check on the departures and arrivals to help a passenger, and indicated that she had done so before this incident. The passenger could have found the same information on public boards, but the nearest board was down the hall.
The ALJ affirmed the agency’s determination to deny unemployment benefits. In his reasoning and conclusions, the ALJ sets forth the following facts not in dispute:
Both parties agree that there was a policy that indicated employees of [respondent] could not access or use the client’s equipment.
The Claimant was aware of that policy, but had disregarded it on some occasions in the past.
The Claimant never received any instruction from management or any approval of her accessing flight data information on the client’s computer.
The Claimant acknowledged the use on January 27, 2011....
The ALJ also found that claimant accessed the computer to assist a passenger with flight arrivals and departures. The ALJ ruled that the employer met its burden of proof in establishing that claimant was discharged for reasons “which would constitute behavior beneath the standard the Employer had reason to expect of its employee.”
Claimant appealed the ALJ’s decision, arguing that her conduct did not rise to the level of disqualifying misconduct. The MCAC issued a decision affirming the ALJ’s decision and ruled that the decision was in conformity with the facts as developed at the hearing and the ALJ properly applied the law to the facts.
Claimant then filed an appeal in the circuit court, arguing that her conduct did not rise to the level of disqualifying misconduct given that she was not acting against her employer’s best interests and her behavior could be considered no more than an error in judgment. Respondent replied that claimant acknowledged that she violated a known rule that prohibited security officers from using the computer, and that the earlier decisions were supported by competent, material, and substantial evidence on the whole record. Following a hearing, the circuit court reversed the MCAC’s decision, stating:
Misconduct is limited to conduct evincing such willful or wanton disregard of an employee — employer’s interest and is found in deliberate violations or disregards of standards of behavior which the employer has the right to expect of his employee. Or the carelessness or negligence in such a degree or occurrence as to manifest equal culpability.
Wrongful intent or evil design or to show an intentional and substantial disregard to the employer’s interest or of the employee’s duties and obligations to the employer.
On the other hand, mere insufficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertence or ordinary negligence in isolated incidents or good faith errors in judgment or discretion are also not to be deemed misconduct within the meaning of the statute.
I mean, that’s what we have here. There’s a woman ... [conflicted with ... two policy situations. You know, am I going to help somebody, some customer for the benefit of the company or I’m going to look in this computer and [sic] I’m told not to do? You sacrifice and she loses her job.
[Counsel for Respondent]: If I may respond to that, I would be happy to offer a sentence or two.
The Court: No. That’s good enough. I’ve heard enough. So I’m going to reverse the decision. I’m going to - I think this is a — it fits under the latter of negligence as opposed to intentional negligence.[ ]
The circuit court then entered an order reversing the MCAC “[f]or the reasons stated on the record.” Respondent’s application for leave to appeal followed and was granted by this Court.
II
A
The Michigan Employment Security Act (MESA) governs unemployment benefits. The purpose of the act is to “provide benefits for periods of unemployment.. . [to] persons unemployed through no fault of their own[.]” MCL 421.2(1). Under the MESA, “[a]n individual is disqualified from receiving unemployment benefits if he or she ... [w]as . . . discharged for misconduct connected with the individual’s work .. . .” MCL 421.29(l)(b). The employer bears the burden of proving misconduct. Korzowski v Pollack Indus, 213 Mich App 223, 229; 539 NW2d 741 (1995).
In Carter v Employment Security Comm, 364 Mich 538, 541; 111 NW2d 817 (1961), the Michigan Supreme Court adopted the following definition of “misconduct” (which was cited by the circuit court below):
“[C]onduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” [Id. (citation omitted).]
The Supreme Court’s description of conduct that is not misconduct was also cited by the circuit court below:
“On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.” [Id.]
Const 1963, art 6, § 28 provides, in pertinent part:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. [Emphasis added.]
Similarly, MCL 421.38(1) provides:
The circuit court... may review questions of fact and law on the record made before the administrative law judge and the Michigan compensation appellate commission involved in a final order or decision of the Michigan compensation appellate commission, and may make further orders in respect to that order or decision as justice may require, but the court may reverse an order or decision only if it finds that the order or decision is contrary to law or is not supported by competent, material, and substantial evidence on the whole record. Application for review shall be made within 30 days after the mailing of a copy of the order or decision by any method permissible under the rules and practices of the circuit court of this state. [Emphasis added.]
B
As respondent argues on appeal, the circuit court was required to uphold the decision of the MCAC unless (1) its decision was contrary to law, or (2) the decision was not supported by competent, material, and substantial evidence. When a circuit court reviews whether a decision was supported by substantial evidence, it may not invade the province of the agency as fact-finder, resolve evidentiary disputes, or pass on witness credibility. See Smith v Employment Security Comm, 410 Mich 231, 260-261; 301 NW2d 285 (1981); VanZandt v State Employees Retirement Sys, 266 Mich App 579, 588; 701 NW2d 214 (2005). We review a lower court’s application of the substantial-evidence standard for clear error, Boyd v Civil Serv Comm, 220 Mich App 226, 234-235; 559 NW2d 342 (1996), but we review de novo whether a circuit court applied correct legal principles in reviewing an administrative decision, Mericka v Dep’t of Community Health, 283 Mich App 29, 35-36; 770 NW2d 24 (2009); see also Natural Resources Defense Council v Dep’t of Environmental Quality, 300 Mich App 79, 88; 832 NW2d 288 (2013) (“Courts review de novo questions of law, including whether an agency’s action complied with a statute.”).
When it reversed the MCAC’s decision, the circuit court did not expressly state on the record whether its decision was based on a question of law or a lack of substantial evidence. Claimant maintains on appeal that the circuit court properly decided a question of law, and respondent maintains that the circuit court improperly invaded the province of the agency when reviewing the facts in evidence.
Claimant argues the circuit court was not required to make findings of fact in this case because the facts in the record were undisputed. And because the facts were undisputed, claimant argues that the circuit court decided a question of law regarding whether her conduct constituted misconduct. In Laya v Cebar Const Co, 101 Mich App 26; 300 NW2d 439 (1980), the underlying facts were undisputed. The plaintiff, a plumber, was laid off and could not find work locally because of poor economic conditions. His local union directed him to Cincinnati, Ohio, 272 miles away, where he took a job. The great distance between home and work contributed to problems with the plaintiffs wife and children, so he quit after 25 days of work. This Court held, “Because there is no dispute as to the underlying facts, the questions presented are questions of law.” Id. at 29. The question of law was whether the plaintiff had left work “voluntarily” under MESA and was therefore disqualified from unemployment benefits. Id. at 29-30. Ultimately, this Court concluded that the plaintiff was not faced with a choice between alternatives that ordinary persons would consider reasonable, he did not leave work voluntarily, and he was entitled to benefits. Id. at 32-35.
Like the facts in Laya, the relevant facts were undisputed in this case. There was no question that claimant violated respondent’s rules when she accessed the client’s computer, but she testified that she had done so to help a passenger. The ALJ made this finding of fact in his decision. At the circuit court hearing, respondent attempted to create a question of fact by arguing that “being helpful” was not one of claimant’s “job duties,” but that argument was inconsistent with the record. Claimant had previously testified that it was her job to help passengers, and respondent presented no evidence to the contrary. Because the facts in the record were undisputed, claimant’s argument is persuasive that because there were no disputed factual findings for the circuit court to test with the substantial-evidence standard, it must have decided a question of law.
c
But even if the facts were not undisputed, this Court has stated that the interpretation and application of the statute to the facts is a question of law. See In re Wayne Co Treasurer Petition, 265 Mich App 285, 290; 698 NW2d 879 (2005); see also Natural Resources Defense Council, 300 Mich App at 88. In Wichey v Employment Security Comm, 369 Mich 487, 490; 120 NW2d 181 (1963), our Supreme Court noted that it had “only rarely . . . made the sometimes difficult effort to distinguish between issues of fact, issues of law, and compound issues of fact and law.” However, the Court stated that when a dispute involves an agency’s “interpretation or application of a statute, our function is not restricted by the ‘great weight’ test in determining whether or not the agency’s application of the statute to the facts found conforms with the law . . . .” Id. at 492. The Court held that reviewing courts must first determine whether the agency’s conclusion of law, “accepting for this purpose all of the findings of fact” of the agency, “was a legally valid conclusion.” Id. at 493. If it was a legally valid conclusion, reviewing courts then determine whether the findings of fact were supported by the evidence. Id. at 493-494.
Just as in Laya, the question of law in Wickey was whether the claimant had voluntarily left his employment without good cause. Id. at 494. The claimant was a seaman who went ashore while off duty and returned to the ship late, after it had departed. Id. at 494-495. The Court concluded that this action did not “support even an inference of intentional, deliberate, voluntary desertion of his ship.” Id. at 495. The claimant’s subsequent conduct — traveling where the ship was next scheduled to dock — likewise demonstrated that the claimant did not intend to quit his job, but intended to resume it. Id. at 496. Because the Court concluded that the facts as found by the agency did not, as a matter of law, justify the claimant’s disqualification from unemployment benefits, the Court found it unnecessary to determine whether the findings of fact were supported by the evidence. Id. at 497-498.
D
The framework explained by our Supreme Court in Wickey applies here. Under Const 1963, art 6, § 28 and MCL 421.38(1), a circuit court must review the agency’s factual findings under the substantial-evidence standard, but review the facts, as found, to determine whether they constitute “misconduct” under the statute.
The question before the circuit court, as framed by claimant at the hearing on her appeal from the agency decision, was whether the ALJ’s and the MCAC’s decisions were supported by law. Contrary to respondent’s argument on appeal, we find nothing in the record to indicate that the circuit court analyzed whether the agency’s findings of fact were supported by the record evidence. As our Supreme Court directed in Wickey, the circuit court assumed the facts found by the ALJ were true (noting that claimant had a choice between whether “to help somebody, some customer for the benefit of the company” or “to look in this computer” as she’d been “told not to do”) and applied those facts to the law. The circuit court relied on the definition of misconduct in Carter to conclude that claimant’s behavior was mere negligence. Determining whether an agency decision was authorized by law was within the circuit court’s authority under Const 1963, art 6, § 28 and MCL 421.38(1) and was not error.
in
A
Given our conclusion that the circuit court analyzed whether claimant’s behavior constituted misconduct as a matter of law, we must next consider whether the circuit court erred in this determination. Mericka, 283 Mich App at 35-36. The principles of statutory interpretation are well established. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. The statutory language is the best indicator of the Legislature’s intent. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). Importantly, “ ‘[statutory language should be construed reasonably, keeping in mind the purpose of the act,’ ” and to avoid absurd results. Draprop Corp v City of Arm Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001), quoting Rose Hill Ctr, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997); see also People v Tennyson, 487 Mich 730, 741; 790 NW2d 354 (2010).
Again, our Supreme Court defined “misconduct” under MCL 421.29(1)(b) as
conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute. [Carter, 364 Mich at 541 (citation and quotation marks omitted).]
“[Wjhile misconduct may justify an employee’s discharge for breach of company rules, not every such breach rises to the level of misconduct sufficient to disqualify the employee for unemployment benefits.” Tuck v Ashcraft’s Market, Inc, 152 Mich App 579, 589; 394 NW2d 426 (1986), citing Reed v Employment Security Comm, 364 Mich 395; 110 NW2d 907 (1961).
In Carter, 364 Mich at 540, the claimant was instructed by his foreman to shovel a pile of lead dust into the furnace that the claimant operated. The claimant refused. When the foreman said he would shovel the dust, the claimant threatened to punch him in the nose. The court determined that the claimant’s response was “both a wilful disregard of the employer’s interests and a deliberate violation of standards of behavior which an employer has a right to expect of his employee.” Id. at 542. The claimant’s behavior was “fundamentally disruptive of orderly conduct of work . ...” Id. The Court found no evidence in the record to support the claimant’s contention that his foreman’s instruction was unreasonable or that his refusal was motivated by fear. Id. at 543-544. Under these circumstances, the Court held that the claimant’s behavior constituted misconduct under MESA. See also Parks v Employment Security Comm, 427 Mich 224; 398 NW2d 275 (1986) (holding that the claimant’s failure to abide by city residency requirements and her attempt to sustain the appearance of residency in the city constituted a willful disregard of the employer’s interest).
In Tuck, 152 Mich App at 582, the claimant worked in the meat department of a market. The store had a scrap barrel where unsaleable products were placed, and the claimant had been taking scrap from that barrel for several years for bear baiting. On a day when a manager was not present, the claimant discovered spoiled fish in the market (not the scrap barrel) and he loaded the fish directly into his truck. Only managers were authorized to determine the appropriate disposition of unsaleable goods, including whether to sell them to restaurants or employees at a discount or to dispose of them in the scrap barrel. Id. at 582-584. There was no question that the claimant broke the rules and should have asked for permission to remove the fish. But this Court determined the claimant had not willfully and wantonly disregarded his employer’s interests. His “determination that the fish was unsaleable was a good faith error in judgment and did not evidence an evil design or show a substantial disregard of the employer’s interests.” Id. at 590.
In Razmus v Kirkhof Transformer, 137 Mich App 311, 313; 357 NW2d 683 (1984), the claimant was terminated for two instances of “wasting time” and one violation of safety rules. This Court held that none of the violations amounted to misconduct under MESA. Id. at 316-317. This Court noted that the “safety violation, if anything, evinces an intent to further his employer’s interest. [The claimant] removed his safety glasses because they kept falling off and interfering with his helping a new employee.” Id. at 316. Moreover, the claimant only left his work station for personal business after he had finished his work (welding) and was waiting for the lead to cool. Id. at 317; see also LaCharite v State of Florida, 890 So 2d 354 (Fla App, 2004) (claimant who regularly administered saline I Vs administered an IV to a coworker with permission from the office manager, but not from a doctor as the employer’s rules provided, demonstrated a good-faith error in judgment, not egregious, willful, or wanton behavior that would warrant a denial of benefits).
B
Claimant disregarded respondent’s rules when she used the computer, but the question before the circuit court was whether her breach rose to the level of misconduct, as defined by statute, that would be sufficient to disqualify her from benefits. Tuck, 152 Mich App at 589. We conclude that the circuit court did not err by determining that claimant’s behavior was a good-faith error in judgment and not misconduct under MESA. Mericka, 283 Mich App 29, 35-36. Claimant was aware of the rule prohibiting her use of the computer, but she disregarded it to help a passenger, believing that helping passengers was one of her job responsibilities as a security guard at the airport.
There are no facts in the record demonstrating a willful and wanton disregard for respondent’s interests. Unlike the claimant who threatened to punch his foreman in Carter, and the claimant who willfully lied about her residency in Parks, claimant’s behavior was intended to further respondent’s interests and assist, not disrupt, the passengers at the airport. In that respect, claimant’s behavior is more akin to the violation of the safety rule in Razmus, which was committed to assist a coworker. Respondent notes that the rule prohibiting security guards’ use of the computers was in place because the airport’s computers contained sensitive information. But the fact that claimant merely accessed public flight information, not sensitive information, advances her claim that this was a good-faith error in judgment and not evil design. Carter, 364 Mich at 541.
We conclude that, as a matter of law, claimant’s violation of the rules in this case did not constitute misconduct under MCL 421.29(1)(b). The circuit court did not err by addressing whether the agency’s decision violated the law or by reversing the decision that claimant committed misconduct and was therefore disqualified from unemployment benefits. Mericka, 283 Mich App 29, 35-36.
Affirmed. Claimant may tax costs pursuant to MCR 7.219.
O’Connell, P.J., and Meter, J., concurred with Wilder, J.
Hodge v US Security Assoc, Inc, unpublished order of the Court of Appeals, entered March 15, 2013 (Docket No. 311387).
We presume the trial court meant intentional disregard rather than intentional negligence.
“While cases decided before November 1, 1990 are not binding precedent pursuant to MCR 7.215(J)(1), they nevertheless can be considered persuasive authority.” Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc, 303 Mich App 441, 453 n 4; 844 NW2d 727 (2013).
The version of MCL 421.38 in effect at the time Wickey was decided allowed courts to reverse if the decision was contrary to the great weight of the evidence, as opposed to the substantial-evidence standard now prescribed. Wickey, 369 Mich at 490.
We are not bound by the decisions of other states, but we may consider them to be persuasive authority. K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich App 523, 559 n 38; 705 NW2d 365 (2005). | [
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Per Curiam.
This case is before the Court on order of our Supreme Court for consideration, as on leave granted, of a trial court order denying defendants’ motion for summary disposition in this wrongful-conception medical malpractice case. We affirm in part, reverse in part, and remand for further proceedings.
On August 8, 2011, plaintiff, Lori Cichewicz, filed a complaint against defendants Michael S. Salesin, M.D.; Michael S. Salesin, M.D., P.L.C.; and Walnut Lake OB/GYN, P.L.L.C., averring that she was advised by Salesin in September 2007 that her fallopian tubes were blocked and, therefore, it was no longer necessary for her to use contraceptives. However, in October 2010, plaintiff became pregnant and subsequently gave birth to her daughter, who has Down syndrome.
In Count I of her complaint, plaintiff brought a claim of “gross negligence/medical malpractice” against Salesin. Plaintiff alleged that the standard of care required Salesin “to refrain from informing [her] that it was impossible her [sic] to become pregnant,” “to refrain from informing [her] that she no longer required birth control,” and to “continue to provide [her] with birth control, given her sincere stated desire not to become pregnant.” Plaintiff further alleged that Salesin “grossly violated the standard of care” by taking contrary actions. That is, plaintiff alleged, “Salesin’s negligent actions and omissions, as outlined above, were so reckless as to demonstrate a substantial lack of concern, on the part of Salesin, for whether [plaintiff] would become pregnant as well as the ramifications of [plaintiffs] becoming pregnant.” Plaintiff claimed that, as a direct and proximate result of Salesin’s violations of the standard of care, she stopped using birth control and became pregnant; consequently, she “was entitled to damages as are deemed fair and just regarding the pregnancy and continuing attendant care of her child. . . .” Specifically, plaintiff sought damages for physical injury, emotional distress, mental anguish, medical expenses related to her pregnancy, incidental expenses resulting from her pregnancy, denial of social pleasures and enjoyments because of her pregnancy, emotional distress related to knowing she would deliver a child with Down syndrome, loss of wages and earning capacity, as well as medical, daily living, attendant care, and educational expenses, and all other expenses associated with raising her child.
In Count II of her complaint, plaintiff brought a claim of vicarious liability against Walnut Lake OB/GYN, alleging that Salesin was its agent or employee when the purported negligence occurred. In Count III, plaintiff brought a claim of vicarious liability against Michael S. Salesin, M.D., P.L.C., alleging that Salesin was its agent or employee when the purported negligence occurred.
In June 2012, defendants moved for summary disposition, arguing that plaintiff could not establish that a genuine issue of material fact existed with regard to whether any alleged act or omission of Salesin constituted gross negligence as required by MCL 600.2971 in wrongful-conception cases. In particular, defendants noted that during 14 years of plaintiffs marriage, she did not use birth control while having sexual intercourse two or three times a week without getting pregnant. However, in 2005, after her divorce, she began taking birth control pills and remained on the medication at the time of her annual gynecological physical in June 2007, when she requested permanent sterilization. Thereafter, in August 2007, Salesin attempted a sterilization procedure known as an Essure procedure, which involved the implantation of a device in each fallopian tube that causes scarring and results in permanent blockage of the fallopian tubes. However, Salesin was unable to insert the device into either of plaintiffs fallopian tubes. He then attempted a laparoscopic tubal ligation, but was unable to perform the procedure. In September 2007, plaintiff underwent a hysterosalpingogram to determine whether her fallopian tubes were blocked. When the x-ray dye did not flow through plaintiffs fallopian tubes, it was determined that both of plaintiffs fallopian tubes were occluded. Consequently, Salesin advised plaintiff that birth control was not necessary because her fallopian tubes were blocked and that the blockage had the same effect as a tubal ligation. Salesin testified that in his more than 30 years of practicing, he had never had a similarly situated patient become pregnant with such blockages. Defendants argued that reasonable jurors could not honestly conclude that Salesin’s conduct constituted gross negligence, i.e., “ ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’ ” Odom v Wayne Co, 482 Mich 459, 469; 760 NW2d 217 (2008) (citation omitted). And because “MCL 600.2971 prohibits claims for wrongful conception, including claims for the cost of raising the child to the age of majority, regardless of the child’s health, unless the alleged wrongful conduct was intentional or grossly negligent,” defendants argued that they were entitled to summary disposition of plaintiffs complaint.
Plaintiff responded to defendants’ motion for summary disposition, arguing that MCL 600.2971 did not prohibit her claim for traditional medical malpractice damages, regardless of whether she could demonstrate gross negligence. Plaintiff further argued that she had, in fact, presented sufficient evidence to create a question of material fact regarding whether Salesin’s conduct amounted to gross negligence.
Defendants replied that there was “no merit to plaintiffs argument that the plain language of MCL 600.2971 entitles plaintiff to recover damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority on a wrongful pregnancy or wrongful conception claim in cases of intentional or grossly negligent acts or omissions[.]” Defendants argued that MCL 600.2971 “specifically prohibits an action for damages in a wrongful conception case, and provides that the prohibition does not apply to a civil action for damages for an intentional or grossly negligent act or omission.” Defendants asserted that this statute did not abrogate the “traditional common-law rule that a person may not recover damages in a wrongful conception action. . . . [T]he common law would apply to prohibit a wrongful conception action for damages until the child’s age of majority.” Further, defendants argued, plaintiff was not entitled to recover “damages in her own right as a result of her pregnancy, including her own medical expenses, pain and suffering, and lost wages” because, “[g]iven that [MCL 600.2971(3) and (4)] clearly prohibit[] ‘a person’ from bringing a wrongful pregnancy or wrongful con ception claim, plaintiffs claim in this case cannot go forward.” Defendants also reiterated their argument that plaintiff had not established a question of fact on the issue of gross negligence.
Following oral argument, the trial court denied defendants’ motion for summary disposition. After noting that defendants’ motion was premised on MCR 2.116(C)(10), the trial court stated, “MCL 600.2971 prohibits claims for wrongful conception, including claims for the cost of raising a child to the age of majority, regardless of the child’s health unless the alleged wrongful conduct was intentional or grossly negligent.” The trial court recounted the underlying facts, including that Salesin advised plaintiff that, because her fallopian tubes were blocked, she would not be able to get pregnant and did not need birth control. The trial court then held:
Based on this evidence and particularly the testimony of plaintiff that the chance of the pregnancy was impossible according to him; and that even if plaintiff wanted another child. .. she would not be able to do so; further, that she had testified she specifically asked Salesin about going back to birth control as a precautionary measure; and that he said there’s no need for birth control as the tubes are blocked; his own testimony that he had seen tubes come unblocked once they’re blocked, the Court finds that evidence exists creating a question of fact as to whether or not the defendant’s act or omission was so reckless as to demonstrate a substantial lack of concern for whether an injury would result; and thus, should be decided by a trier-of-fact.
The trial court then entered an order denying defendants’ motion for summary disposition. On April 10, 2013, the trial court entered a stipulated order for the dismissal of all claims against defendant Walnut Lake OB/GYN, P.L.L.C. Defendants then filed an application for leave to appeal in this Court, which was denied. Cichewicz v Salesin, unpublished order of the Court of Appeals, entered May 16, 2013 (Docket No. 312806). Thereafter, defendants applied for leave to appeal in our Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to us for consideration as on leave granted. Cichewicz v Salesin, 494 Mich 873 (2013).
On appeal, defendants argue that the trial court erred by ruling that MCL 600.2971 creates a cause of action for wrongful conception caused by gross negligence and permits recovery of the costs of raising a child to the age of majority.
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We also review de novo as a question of law issues of statutory interpretation. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013).
MCL 600.2971 addresses three types of claims: wrongful-life claims, wrongful-birth claims, and wrongful-conception (also known as wrongful-pregnancy) claims. It provides:
(1) A person shall not bring a civil action on a wrongful birth claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
(2) A person shall not bring a civil action for damages on a wrongful life claim that, but for the negligent act or omission of the defendant, the person bringing the action would not or should not have been born.
(3) A person shall not bring a civil action for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority, on a wrongful pregnancy or wrongful conception claim that, but for an act or omission of the defendant, the child would not or should not have been conceived.
(4) The prohibition stated in subsection (1), (2), or (3) applies regardless of whether the child is born healthy or with a birth defect or other adverse medical condition. The prohibition stated in subsection (1), (2), or (3) does not apply to a civil action for damages for an intentional or grossly negligent act or omission, including, but not limited to, an act or omission that violates the Michigan penal code, 1931 PA 328, MCL 750.1 to 750.568.
A wrongful-birth claim is brought by the parents of a child with a birth defect and generally alleges that the defendant’s failure to inform them of the risk of the birth defect deprived them of the opportunity to avoid or terminate the pregnancy. Taylor v Kurapati, 236 Mich App 315, 322-323; 600 NW2d 670 (1999); Rouse v Wesley, 196 Mich App 624, 626-627; 494 NW2d 7 (1992). The Taylor Court abolished claims for wrongful birth. Taylor, 236 Mich App at 355-356. However, before the Taylor decision, a wrongful-birth cause of action was actionable. See Proffitt v Bartolo, 162 Mich App 35, 41, 46; 412 NW2d 232 (1987), citing Eisbrenner v Stanley, 106 Mich App 357; 308 NW2d 209 (1981).
A wrongful-life claim is brought by or on behalf of a child with a birth defect and alleges that, but for the defendant’s negligence, the child would not have been born. Taylor, 236 Mich App at 336; Rouse, 196 Mich App at 627. At the time of this Court’s decisions in Taylor and Rouse, a cause of action for wrongful life did not exist in Michigan. Taylor, 236 Mich App at 340-341; Rouse, 196 Mich App at 627; Proffitt, 162 Mich App at 58.
This case, however, is more analogous to a wrongful-conception medical malpractice case. Wrongful-conception claims generally contend that
the defendant’s negligent conduct failed to prevent the birth of a child in the following situations: (1) where a physician negligently performs a vasectomy or tubal liga tion or when a physician, pharmacist, or other health professional provides any other type of ineffective contraception, the parents conceive, and the birth of a healthy, but unplanned, baby results; (2) where a physician negligently fails to diagnose a pregnancy, thereby denying the mother the choice of termination of the pregnancy at a timely stage, and the birth of a healthy, but unwanted, baby results; and (3) where a physician negligently attempts to terminate the pregnancy and the birth of a healthy, but unwanted, baby results. [Taylor, 236 Mich App at 325-326 (citations omitted).]
This case differs from the typical wrongful-conception case, however, in that plaintiff alleges that Salesin’s grossly negligent advice regarding her ability to conceive, and failure to prescribe birth control pills, led to an unplanned, unwanted pregnancy. This case also differs in that plaintiff gave birth to a daughter with Down syndrome.
Unlike wrongful-birth and wrongful-life claims, wrongful-conception claims have consistently been permitted in Michigan; however, the types of damages recoverable in wrongful-conception cases have been disputed. See, e.g., Rouse, 196 Mich App at 627; Rinard v Biczak, 177 Mich App 287, 290, 296; 441 NW2d 441 (1989); Bushman v Burns Clinic Med Ctr (After Remand), 83 Mich App 453, 461; 268 NW2d 683 (1978). For example, in Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971), a wrongful-pregnancy case, this Court held that the plaintiff could recover for the pain and anxiety of pregnancy and childbirth, lost wages, medical and hospital expenses, and the economic costs of rearing the child. Id. at 260-261. In Rinard, this Court agreed that the plaintiff could recover for the costs of pregnancy and childbirth, as well as “related damages for pain and suffering, medical complications caused by the pregnancy, mental distress, lost wages, and loss of consortium,” but concluded that recovery for the economic costs of raising a normal, healthy child was not permitted. Rinard, 177 Mich App at 294. In Rouse, this Court also held that a plaintiff in a wrongful-pregnancy action “may not recover the customary cost of raising and educating the child.” Rouse, 196 Mich App at 632. Further, the Taylor Court, which abolished wrongful-birth claims, acknowledged that wrongful-conception claims were viable causes of action in Michigan and refused to consider whether such claims “remain tenable.” Taylor, 236 Mich App at 336 n 35.
After the Taylor decision was issued in 1999, our Legislature passed 2000 PA 423, which became MCL 600.2971. Subsections (1) and (2) are consistent with the prevailing common law; civil actions for wrongful birth and wrongful life are generally not actionable in this state. See MCL 600.2971(1) and (2); Taylor, 236 Mich App at 341, 355. Subsection (3) is also consistent with the prevailing common law; civil actions for wrongful conception are actionable, but damages for the cost of raising the child to the age of majority are generally not recoverable. See MCL 600.2971(3); Rouse, 196 Mich App at 631-632. However, with the addition of subsection (4), the Legislature created exceptions to each prohibition set forth in the three previous subsections of MCL 600.2971. At issue here is the application of subsection (4) to subsection (3).
The rules of statutory interpretation are well established. “[0]ur purpose is to discern and give effect to the Legislature’s intent.” Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). We examine the plain language of the statute, assign words their plain and ordinary meaning, and, if the language is unambiguous, no further construction is required or permitted; the statute must be enforced as written. Id. Further, we presume that the Legislature has knowledge of the common law when it acts. Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20, 28; 780 NW2d 272 (2010). The common law remains in effect until modified, and abrogation is not lightly presumed. Id. Therefore, the Legislature “ ‘should speak in no uncertain terms’ ” when it chooses to modify the common law. Id., quoting Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006).
Because statutes must be read as a whole and in context, Mich Props, LLC v Meridian Twp, 491 Mich 518, 528; 817 NW2d 548 (2012), we again consider subsections (1), (2), and (3) of MCL 600.2971, which provide:
(1) A person shall not bring a civil action on a wrongful birth claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
(2) A person shall not bring a civil action for damages on a wrongful life claim that, but for the negligent act or omission of the defendant, the person bringing the action would not or should not have been born.
(3) A person shall not bring a civil action for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority, on a wrongful pregnancy or wrongful conception claim that, but for an act or omission of the defendant, the child would not or should not have been conceived.
Contrary to subsections (1) and (2) — which prohibit civil actions premised on wrongful-birth and wrongful-life claims — subsection (3) does not prohibit civil actions premised on wrongful-pregnancy or wrongful-conception claims. Eather, subsection (3) prohibits a wrongful-pregnancy or wrongful-conception claim “for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority.” But subsection (4) provides for an exception that is applicable to each prohibition stated in subsection (1), (2), and (3). It provides, in relevant part:
The prohibition stated in subsection (1), (2), or (3) does not apply to a civil action for damages for an intentional or grossly negligent act or omission, including, but not limited to, an act or omission that violates the Michigan penal code, 1931 PA 328, MCL 750.1 to 750.568.
The prohibition set forth in each subsection is denoted by the words “shall not.” See 1031 Lapeer LLC v Rice, 290 Mich App 225, 231; 810 NW2d 293 (2010) (holding that “the term ‘shall not’ may be reasonably construed as a prohibition”). Thus, applying subsection (4) to subsection (1), a person may bring a civil action on a wrongful-birth claim that, but for an intentional or grossly negligent act or omission of the defendant, a child or children would not or should not have been born. Applying subsection (4) to subsection (2), a person may bring a civil action for damages on a wrongful-life claim that, but for an intentional or grossly negligent act or omission of the defendant, the person bringing the action would not or should not have been born. Applying subsection (4) to subsection (3), a person may bring a civil action for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority, on a wrongful-pregnancy or wrongful-conception claim that, but for an intentional or grossly negligent act or omission of the defendant, the child would not or should not have been conceived.
Contrary to defendants’ argument, MCL 600.2971 did not “create” a cause of action for wrongful conception. As discussed earlier, claims for wrongful conception have long been actionable in this state, although plaintiffs could not recover as damages “the customary cost of raising and educating the child.” Rouse, 196 Mich App 631-632; see also Taylor, 236 Mich App at 335. MCL 600.2971(4) did not abrogate the common law related to the recovery of these types of damages in wrongful-conception claims premised on negligence. That is, a plaintiff asserting a wrongful-conception claim premised on a negligent act or omission of a defendant still cannot recover damages “for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority[.]” MCL 600.2971(3). But, under MCL 600.2971(4), a plaintiff is permitted to recover such damages for a wrongful-conception claim premised on an intentional or grossly negligent act. Thus, the types of damages recoverable in a wrongful-conception claim depend on whether the defendant’s act or omission was merely negligent, or whether it was intentional or grossly negligent.
“Common-law rules apply to medical malpractice actions unless specifically abrogated by statute.” O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 503 n 16; 791 NW2d 853 (2010). The Legislature has the authority to abrogate the common law and, if a statutory provision and the common law conflict, the statutory provision supersedes the common law. Pulver v Dundee Cement Co, 445 Mich 68, 75 n 8; 515 NW2d 728 (1994). We conclude that, through MCL 600.2971, the Legislature has spoken in no uncertain terms, and those terms state that wrongful-birth and wrongful-life claims are actionable in Michigan “for damages for an intentional or grossly negligent act or omission.” MCL 600.2971(4). Further, wrongful-conception claims remain actionable in Michigan, and damages related to the costs of raising the child to the age of majority may be recovered on a showing of an intentional or grossly negligent act or omission. Accordingly, the trial court did not err when it held that MCL 600.2971 does not prohibit a wrongful-conception claim seeking damages for daily living, medical, educational, and other expenses necessary to raise a child to the age of majority on the basis that, but for the grossly negligent act or omission of the defendant, the child would not or should not have been conceived.
Next, defendants argue that even if plaintiff can bring an action for wrongful conception caused by gross negligence, she failed to establish a genuine issue of material fact that Salesin’s conduct was grossly negligent. We agree.
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Maiden, 461 Mich at 118. The trial court considered defendants’ motion for summary disposition as brought under MCR 2.116(C)(10). Such a motion tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). This Court “review[s] a motion brought under MCR 2.116(C)(10) by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Summary disposition “is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id.-, see also MCR 2.116(C)(10). “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
MCL 600.2971 does not define the term “grossly negligent,” and there are no published cases defining the term in the context of MCL 600.2971. However, in contexts where civil liability would only exist if a defendant’s conduct was grossly negligent, Michigan courts have generally applied the standard articulated in the governmental tort liability act (GTLA), MCL 691.1401 et seq., which defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a); see also Jennings v Southwood, 446 Mich 125, 136; 521 NW2d 230 (1994) (GTLA definition of gross negligence applies where Legislature intended to immunize emergency personnel from ordinary negligence, but not from gross negligence); Xu v Gay, 257 Mich App 263, 268-269; 668 NW2d 166 (2003) (GTLA definition of gross negligence applies in context of a contractual waiver of liability). Further, the GTLA definition of gross negligence has been incorporated into Michigan’s model jury instruction defining gross negligence. M Civ JI 14.10.
We conclude that the definition of “gross negligence” set forth in the GTLA is the most appropriate standard to be applied in the context of MCL 600.2971. Similar to the GTLA, MCL 600.2971 provides immunity to potential defendants for ordinary negligence with regard to wrongful-birth and wrongful-life claims in subsections (1) and (2). MCL 600.2971 also prohibits the recovery of certain damages from a defendant in a wrongful-conception claim premised on ordinary negligence, § 2971(3), while permitting the recovery of those damages in a claim premised on gross negligence, § 2971(4). Therefore, while a plaintiff asserting a wrongful-conception medical malpractice claim may recover damages traditionally permitted if ordinary negligence is proved, to recover damages “for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority,” the plaintiff must prove “an intentional or grossly negligent act or omission.” MCL 600.2971(3) and (4).
In this case, even considering that plaintiff is entitled to have the facts viewed in the light most favorable to her and to have all legitimate inferences considered in her favor, we conclude that plaintiff failed to establish a material question of fact regarding whether Salesin’s conduct was grossly negligent. See Jackson v Saginaw Co, 458 Mich 141, 146; 580 NW2d 870 (1998). Under the circumstances of this case, informing plaintiff that she could not become pregnant and that she no longer required birth control, as well as failing to prescribe birth control pills, was not conduct so reckless as to demonstrate a substantial lack of concern for whether plaintiff would become pregnant.
Plaintiffs medical records indicated that during 14 years of her marriage she did not use any birth control methods and did not get pregnant, despite having an active sex life. Salesin testified that he attempted a sterilization procedure, through which devices would be implanted into each fallopian tube that would prevent pregnancy as effectively as a tubal ligation, but it could not be completed because both of plaintiffs fallopian tubes were occluded. Salesin also testified that he confirmed that plaintiffs fallopian tubes were occluded during a hysterosalpingogram procedure that was later performed. Salesin testified that, considering plaintiffs age and her history of infertility despite an active sex life, in conjunction with the results of both the failed sterilization procedure and the hysterosalpingogram, he advised plaintiff that no additional forms of sterilization or contraception were recommended. Although Salesin admitted in his deposition that he had seen blocked fallopian tubes become unblocked, he noted that there is also a failure rate with both tubal ligation and birth control pills, but additional forms of birth control are not recommended in those instances even considering the failure rate. Moreover, in this case, because of plaintiffs history of infertility, as well as his visualization of plaintiffs occluded fallopian tubes both during the attempted sterilization procedure and during the hysterosalpingogram, he would not expect plaintiffs fallopian tubes to subsequently become unblocked and he had never seen such an occurrence in a similarly situated patient. That is, he had never seen a patient’s fallopian tubes open up enough for the patient to get pregnant after he had “looked at the tubes, found them to be blocked, [and] had an x-ray test confirming that they were blocked, never.” In fact, Salesin testified, the probability of pregnancy in the population of women who are 41 years old, without any known fertility issues, is less than one percent. Further, he stated that because the risks associated with birth control pills, although slight, were probably greater than the risk of plaintiff getting pregnant, they would not have been indicated even if she had requested them. Although plaintiff testified that Salesin told her it was impossible for her to get pregnant, Salesin denied that he would ever use the term “impossible” because “in medicine nothing is 100 percent.” In any case, Salesin admitted that he was convinced “that it would be unnecessary to use any other form of birth control because [he] had lots of evidence to show . . . that she wasn’t going to be able to get pregnant.”
On the basis of the evidence presented to the trial court, we hold that no reasonable juror could conclude that Salesin’s conduct was so reckless that it demonstrated a substantial lack of concern for whether plaintiff would get pregnant as a consequence of his advice regarding the need for contraception and his failure to prescribe birth control pills. See Maiden, 461 Mich at 128; Vermilya v Dunham, 195 Mich App 79, 83; 489 NW2d 496 (1992). As explained by this Court in Tarlea v Crabtree, 263 Mich App 80; 687 NW2d 333 (2004), the type of conduct that a defendant must engage in to be held liable for gross negligence involves
almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. It is as though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge. \Id. at 90.]
In this case, Salesin’s advice to plaintiff regarding the necessity of contraception was based on his more than 30 years of experience and grounded on several objective and persuasive factors that informed his medical judgment and subsequent actions, including plaintiffs age, her multiple-year history of infertility despite an active sex life with two different partners, Salesin’s inability to place devices into either of plaintiffs fallopian tubes because of occlusion, and his visualization of the fallopian tube occlusions during the hysterosalpingogram. Accordingly, we reverse the trial court’s order denying defendants’ motion for summary disposition with regard to plaintiffs claim that, because of Salesin’s gross negligence, she was permitted to seek recovery “for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority” on this wrongful-conception medical malpractice claim.
Next, defendants argue that plaintiff was not permitted to seek the recovery of even traditional damages on her wrongful-conception medical malpractice claim because neither MCL 600.2971 nor the common law allows for the recovery of such damages. We disagree.
In Michigan, as a general rule, plaintiffs are entitled to recover civil damages for medical malpractice, as long as they satisfy their evidentiary burdens. See MCL 600.2912a. Defendants have provided no authority holding that, in a wrongful-conception medical malpractice action, a plaintiff may not recover damages generally permitted in medical malpractice actions. And prior decisions of this Court have consistently held that a plaintiff in a wrongful-conception action is entitled to recover traditional damages, as discussed earlier. Rinard, 177 Mich App at 294; Troppi, 31 Mich App at 252-255; see also Bushman, 83 Mich App at 461.
Further, consistent with the common law, the language of MCL 600.2971 implies that such damages are compensable in a wrongful-conception action. “[Although only an aid to interpretation, we note that the maxim expressio unius est exclusio alterius (the expression of one thing suggests the exclusion of all others) means that the express mention of one thing in a statutory provision implies the exclusion of similar things.” People v Carruthers, 301 Mich App 590, 604; 837 NW2d 16 (2013). While MCL 600.2971(3) expressly limits a plaintiffs right to recover the expenses related to raising a child to the age of majority in a wrongful-conception medical malpractice action premised on negligence, listing these expenses in detail, the statute includes no language limiting a plaintiffs ability to recover traditional medical malpractice damages. Had our Legislature intended to restrict recovery for any and all damages in a wrongful-conception action, the Legislature could have done so, as it did in wrongful-life and wrongful-birth actions. See MCL 600.2971(1) and (2). The Legislature’s language demonstrates an intention to limit recovery in a wrongful-conception action premised on negligence only to the extent that a plaintiff seeks damages related to the cost of raising the child to the age of majority. See MCL 600.2971(3). Defendants’ argument on appeal, if adopted, would prohibit a cause of action for wrongful conception premised on negligence, contrary to the plain language of MCL 600.2971(3). Accordingly, the trial court improperly held that MCL 600.2971 prohibits claims for wrongful conception unless the alleged conduct was intentional or grossly negligent. However, defendants’ motion for summary disposition was properly denied to the extent it was based on the argument that plaintiff could not seek the recovery of any damages on her wrongful-conception medical malpractice claim. Thus, we affirm the trial court’s decision in this regard, albeit on different grounds. See Mulholland v DEC Int’l Corp, 432 Mich 395, 411 n 10; 443 NW2d 340 (1989).
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
M. J. Kelly, P.J., and Cavanagh and Fort Hood, JJ., concurred.
Cichewicz v Salesin, 494 Mich 873 (2013). This order appears with the plaintiffs name misspelled as “Chichewiez.” | [
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Cooley, J.
This is an action of trespass brought by the owner and occupant of land against the highway commission.ers of the township for removing his fences under the claim that they were opening a public highway. It appears that proceedings had been taken for laying out a highway which would include the locality of the alleged trespass, and the sole question is whether these proceedings were effectual. The case was referred to a referee, who reported the facts; Erom these it appears that the proceedings of the highway ■ commissioners in their attempt to lay out the highway were wholly ineffectual, for reasons which are now immaterial, and need not be stated. Prescott, however, did not rely upon their invalidity but took his appeal to the township board — or rather township boards, for it was a town-line road. This appeal to a board whose decision the statute (Comp. L. § 1264) declares shall be final, was a waiver of previous defects and irregularities. Brody v. Township Board of Penn. 32 Mich. 272.
The township boards convened and proceeded to a consideration of the appeal, and affirmed the action of the commissioners. Unfortunately, however, it does not appear that Prescott had any notice of their meeting. This was a jurisdictional fact, and must appear. It is true the record states that they met at Prescott’s house, but there is neither proof nor recital that he was present, though it does appear that other persons interested met with the board. We must assume that if he had been there he would have been mentioned. Comp. L. § 1263. The defect is fatal. ■ The referee is of opinion that there were other grounds of invalidity? but we do not need to consider them.
The judgment of the circuit court was given against the views of the referee, and it must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Cooley, J.
But one question is presented by this record, namely, whether the count in the plaintiff’s declaration on which he was permitted to recover in the court below, was a count in tort or upon a warranty. The count is as follows:
“And for that whereas the said plaintiff heretofore to wit, on the 2Sth day of November, A. D. 1879, at the township of Porter, in the county of Cass and State of Michigan, at the special instance and request of the said defendant, bargained with the said defendant to exchange with the said defendant the certain horse of the said defendant and for a certain horse of said plaintiff’s of great value, to wit, of the value of one hundred and fifty dollars, the said defendant then and there warranting the said horse to be sound and all right every way, then and there falsely and fraudulently sold and exchanged the same horse with the said plaintiff for the said horse of the said defendant to be delivered to said plaintiff as aforesaid, and the said plaintiff confiding in the said warranty that said horse was sound and all right every way as aforesaid; afterwards, to wit, on the day and year aforesaid, at the township of Porter, in the county of Cass and State of Michigan, delivered his said horse to the said defendant in exchange for the said horse of the said defendant. Whereas, in truth and in fact at the time of the making of the said false warranty as aforesaid, and of the said exchanges as aforesaid, the said horse of the said defendant was not sound and all right every way, but on the contrary thereof there was, and still is, unsound, and hath become, and is of no use or value to the said plaintiff, and also by means of the promises the said plaintiff hath lost and been defrauded of the use of his said horse, to wit, at the township of Porter, in the county of Cass and State of Michigan aforesaid, and so' the said plaintiff saith that the said defendant on the said sale and exchange falsely and fraudulently deceived and defrauded the said plaintiff as aforesaid, at the township of Porter, in the county of Cass and State of Michigan aforesaid, and also tlie said plaintiff was then and there put to great expense and charges in and about feeding, keeping and taking care of the said horse. Wherefore the said plaintiff saitli that he is injured, hath sustained damages to a large amount, to wit, to the amount of one hundred dollars, and therefore he brings suit,” etc.
The court below treated this as a count in tort, and allowed the plaintiff to recover, as upon a rescission of the contract. The defendant insists that it is a count in assumpsit, and in affirmance of the contract.
It was decided in Beebe v. Knapp 28 Mich. 53, that an action on the case may be maintained for false representations in the sale of property whereby the vendee was deceived and defrauded, even though the vendor was not aware of the falsity of the representations when he made them. But there is no doubt the representations in such a case may be treated, as warranties, and assumpsit brought at the option of the vendee. Hawkins v. Pemberton 51 N. Y. 198; Wheeler v. Reed 36 Ill. 81; M'Gregor v. Penn 9 Yerg. 74; Henshaw v. Robins 9 Met. 83; Burge v. Stroberg 42 Ga. 88; Stone v. Covell 29 Mich. 359. As the declaration in either case must set out the facts, there must necessarily be considerable similarity, and this is not the first instance by many in which a count meant to be in case for the deceit has been mistaken for one in assumpsit. But the leading case of Williamson v. Allison 2 East 446 fully sustains the ruling of the court below. It was there said by Lord Ellenborough that “ the warranty is the thing which deceives the buyer who relies on it, and is thereby put off his guard. Then if the warranty be the material averment, it is sufficient to prove that broken to establish the deceit: and “ the form of the action cannot vary the proof in that respect.” The same ease decides that it is not necessary either to aver or prove the scienter, and to render the case more completely like the present in principle, the declaration there as here failed to aver an offer to return the property in the sale of which the tort was committed. The doctrine of that case is familiar law in this country. Beeman v. Buck 3 Vt. 53 ; West v. Emery 17 Vt. 583 ; Johnson v. McDaniel 15 Ark. 109 ; Hillman v. Wilcox 30 Me. 170; Newell v. Horn 45 N. H. 421; Ives v. Carter 24 Conn. 392. An examination of Ross v. Mather 51 N. Y. 108, which questions the soundness of Williamson v. Allison, will show that the criticism was based on a misapprehension of the point decided.
All the errors relied upon in this casé depend upon the one noticed. The judgment was right, and must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
Under the facts found by the court in this case the judgment must be affirmed. The plaintiffs had undoubtedly the right to show that the judgment of the justice of the peace was not on the merits. The court so found as a fact, and held that it would be no bar to the present action.
Plaintiffs in error rely upon Comp. L. § 5456, which provides that upon an appeal being discontinued or dismissed, upon the same being certified to the justice, he shall proceed as if no appeal had been taken. The appeal taken in this case was neither discontinued nor dismissed, but the plaintiffs, after the case was in the circuit, discontinued their suit. This they had a right to do. The judgment of the justice was one for costs against them only, and these they had paid on taking their appeal. The defendants had obtained no substantial right in the case when appealed which would preclude the plaintiffs and appellants from discontinuing their canse of action. Had the justice’s judgment been one in favor of the defendants for damages and costs, and the plaintiffs had appealed therefrom, then whether in such a case the plaintiffs could discontinue and thus deprive the defendants of the substantial right which they had acquired by the judgment, may be a different question. In the present case we have no doubt but that on the facts found, the justice’s judgment rendered against the plaintiffs, because the claim sued upon was not due at the time the action was commenced, would be no bar to the second suit.
The judgment must be affirmed with costs.
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Graves, J.
The circuit judge excluded the record of a deed offered in evidence, and the question is upon the correctness of this ruling. The deed purported to have been executed in New York in 1874, and to have been there acknowledged at the same time. It bore a clerk’s certificate to authenticate the execution and acknowledgment and the clause intended to verify those proceedings was in these terms: “I further certify that the said instrument is executed, and proved or acknowledged according to the laws of this State.” The objection on which the circuit judge based his decision that the offered evidence was inadmissible, was that the .conjunction “ or ” between the word “ proved ” and the word “ acknowledged ” left it wholly uncertain which was done; -and that as a consequence there was no authentication in favor of either.
The inaccuracy of the ruling seems to the court very manifest. The validity of our records is not allowed to depend on such niceties. In the language of the Supreme Court of the United States the “ courts will uphold a certificate if possible, and for that purpose will resort to the instrument to which it is attached” (Carpenter v. Dexter 8 Wall. 513), and it is only needful to apply this rule, to demonstrate that the clerk in using the word “ proved ” where it appears, was simply guilty of tautology. He meant by it precisely what ■ the word “ acknowledged ” fully and sufficiently expressed. He referred to the Certificate of acknowledgment which appeared before him on the deed, and not to a certificate of “proof” which did not appear. There was nothing .else to which his authentication could apply, and it is only necessary to refer it as he did to the certificate of acknowledgment to uphold the proceeding.
A certificate to attest the proof of execution by a witness is very differently framed. It explains who the witness is and the fact of his making proof of the execution. Further comment is unnecessary.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Graves, J.
Bouse recovered against Bannister the sum of thirty dollars and forty cents besides costs before a justice of the peace upon certain written undertakings given bjr Bannister to one Bullock, and the judgment was affirmed in circuit court on certiorari. Bannister then brought error. The title of Bouse was by assignment and not endorsement and the claim is made that the papers were negotiable by the law merchant and were not suable therefore in the name of the transferee without endorsement. The instruments sued on were two of a series of twenty of the same kind given on the purchase of a piano. It was provided in each one that the piano should remain the property of Bullock, the payee, until payment, and that in case of default in payment it should be optional with him to take possession of the piano or collect the note. The money was not therefore made payable absolutely and at all events.
By the contract a way was left open for an eventual option on the part of the payee to hold the piano and refuse the money. In case of failure to make payment by the day, whether voluntarily or otherwise, the agreement becomes one entitling the payee to demand the piano instead of money, and this takes place at the moment the right of action arrives. If transferred after maturity no one can ascertain from the face of the paper whether it is or is not an undertaking for money. It seems to me to be wanting in that certainty which the law merchant deems necessary to give it currency according to commercial usage. If correct in this it follows that the want of endorsement was not a valid objection and that the papers were assignable and suable as chosesin action.
It appeared that they were received by Bouse as his commission for selling the piano, and that Bannister promised to pay them to him. But that subsequently and whilst they were owned by Bouse he, Bannister, agreed with Bullock to retain the piano and receive back the eighteen notes in Bullock’s hands, and then refused to pay Bouse. He testified that when he so returned the piano it was agreed by Bullock that the papers in suit were valueless, and he contended that Bouse held the papers'subject to Bullock’s power by agreement with him, Bannister, to destroy their value by rescission of the original bargain. The justice found the fact otherwise.
The ruling in regard to evidence worked no prejudice and requires no special notice.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
When this case was first brought to trial in the court below the plaintiff put in his evidence and rested. The defendant then took the stand as a witness and gave evidence, but before he had concluded, the plaintiff was allowed to amend his bill of particulars and the case was continued. When it was brought to trial again it was taken up anew, and the plaintiff, after putting in some documentary-evidence, called the official stenographer, and inquired of him if he had the notes of defendant’s testimony taken on the former trial. Being answered in the affirmative, the plaintiff offered these notes in evidence. The defendant asked the witness whether the evidence had been completed before the case was stopped, and the reply was that it had not. been. The defendant then objected to the proposed evidence, but the court overruled the objection and the notes were read to the jury.
One fatal objection to this evidence is that the notes were in no manner authenticated. The stenographer did not testify that his notes were an accurate statement of the evidence, nor was he questioned on that subject. Tlieir accuracy was assumed from the mere fact that he was the ■official stenographer. But there is no law making them evidence generally, nor should there be. The witness does not review the notes, and gross injustice may be done him if their accuracy is assumed. Mistakes, we know, are common .and are inevitable, especially when the witness is testifying on a subject with which the stenographer is unacquainted.
But we also think that the objection that the evidence was incomplete was fatal to its introduction. It was offered as a whole, as containing admissions against the defendant’s inter est. We do not say that particular statements which were in the nature of admissions might not be proved to have been made by the defendant while on the stand, though even these ought to be received with caution and reserve under such circumstances; but when the whole of the incomplete evidence is offered the objection is manifest. We cannot assume that explanations and modifications would not have been given and made, materially changing the apparent meaning, and it is no answer to say that the defendant may now take the stand in explanation, for this is putting him on the defense where no defense may have been required but for the disadvantage at which he is taken, and all explanations will come in with an appearance of being after-thoughts. A suspicion will almost inevitably attach to them in the minds of the jury which would not have attended the same explanations or modifications if given as a part of the original testimony and at the same time with it.
Several other errors are assigned, the most of which we-think have no merit. One of them, however, is material, and as it may possibly occur again on a new trial, we mention it now. The contract price for the sawing of lumber was in dispute between the parties; one testifying that it was to be four dollars and the other that it was to be three dollars and a half. As bearing upon the probabilities that he was correct rather than the plaintiff, the defendant offered to show what the sawing was fairly worth; but the offer was ruled out. We think the evidence was admissible. Campau v. Moran 31 Mich. 280; Richardson v. McGoldrick 43 Mich. 476.
The judgment must be reversed with costs and a new trial ordered.
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Marston, C. J.
The principal question in this ease relates to the right of a judgment creditor, to crops grown upon lands fraudulently conveyed, and which were not in existence at the time the fraudulent transfer was made.
"There is much to be said against the right of the creditor in such cases, and no doubt he may, by mere lapse of time •or otherwise, so acquiesce in the transfer that he could not follow the crops grown thereon by the grantee.
So there may be cases where the labor and capital, one or "both, of the grantee, enters so largely into the crop or product, that it would be inequitable to permit the creditor of the fraudulent grantor to make any claim to the crop while permitting the conveyance to stand. Upon such and kindred cases we neither express nor intimate any opinion.
Where, however, the debtor for the purpose of defrauding his creditors makes a conveyance of his real estate, yet retains the possession, or receives the rents, issues and profits thereof in whole or in part,, the mere fact that the grantee is the ostensible owner of the farm or its products, or that the crops had not been sown or planted at the time of the fraudulent conveyance, should not deprive the creditor of his right to resort to the crops, at least to the extent of the fraudulent grantor’s interest therein, in satisfaction of his debt.
The conveyance is good as between the parties thereto, and the grantee may, as against the fraudulent grantor, retain what he has received and reap the fruits thereof for his own exclusive benefit. Or he may in pursuance of the fraudulent agreement, carry on the business-apparently for himself, but in fact, in whole or in part, for the use and benefit of the fraudulent grantor, thus enabling him to reap the benefit, in part at least, of an owner in fact while not in appearance.
In such cases there can be no good reason against the creditor taking the crops so raised, and if any doubt exists in a given case it should be solved in favor of the honest creditor. A grantee who thus lends himself to the fraudulent grantor should run all the risks, for if he loses it is but one of the results of his own voluntary act.
In reference to the other questions raised, this court has repeatedly held that a broad latitude should be allowed in the introduction of evidence tending to show fraud, and we need not pass upon the several questions raised.
The judgment must he reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell, J.
Corbin sued defendants for a failure to put in their saw-mill a lath machine which he claims they had agreed to have set up, and to employ him to run it during the season of 1866 — T at a compensation named.
The jury found no such contract was made. The testimony conflicted as to what actually took place between Cor-bin and the agent of defendants. We have not discovered anything which indicates very clearly if at all that proof was made that the agent had power to make such a contract, or that Corbin had reason to rely on such power. But this was left to the jury. In his charge the judge told the jury that in such a conflict of testimony they should look at all the probabilities, and among other things to the likelihood that an agreement wonld be made which would require the mill to . haveits power increased, and to be idle while this was being done, during the sawing season.
The only exception to the charge is confined' to this part of the charge, and we think it is without foundation. It is entirely proper to call the attention of the jury to any of •the bearings of the case, ass throwing light on the probabilities. We cannot discover anything in the charge which shows that there was unfairness in this discussion.
The judgment must be affirmed with costs.
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Campbell, J.
The bill in this case is filed by complainants as creditors who have proved a claim against the estate of Lafayette Brown, deceased, which is under settlement in the probate court of Clinton county. The bill, which is sworn to merely on information and belief, and contains no important facts verified on the merits, avers that Walbridge as administrator took possession of some chattels and collected some debts, and that decedent had a stock of goods worth about one thousand dollars, on which his widow, who is a co-defendant, claimed to hold a mortgage under which she sold the goods by Walbridge’s advice, and did not prove the debt before the commissioners. Complainants claim on information and belief that she was indebted to her husband, and that he held notes of $6000 and $300 against her, which were destroyed by her with the assent of Walbridge.
The bill further claimed that Walbridge had suppressed and not filed the report of claims, amounting to over $10,000, of which complainants were allowed $808.12, and had failed to account though cited. The bill claims that the mortgage was fraudulent, and that Walbridge had been offered an indemnity to sue the widow. The bill prayed an account and an application of assets, and for the filing of the report.
It appears, however, that the report has been filed, and that claims of the widow against the estate were allowed by the commissioners, and that complainants have appealed from the allowance to the circuit court. The question of the rights of the estate against her, or of her claim against the estate, having already been passed upon by the commissioners, and still being in course of litigation on the appeal, there can be no power in a court of equity to examine into the subject. Whatever remedy exists against her is a legal remedy for money had and received or for the value of the chattels sold, in the one case, and on the notes in the other. The remedy in the probate and circuit courts, both for investigating the accounts and settling claims and set-offs, is not only sufficient, as held in Rathbone's Estate, ante, p. 57, but is also imperative when once the controversy has been opened. Green v. Probate Judge 40 Mich. 244. And complainants themselves have become active participants in that litigation. Nothing can be done in equity which could not be as well or better done in the other tribunals where the case was already under jurisdiction. And when the rights are fixed, there is a remedy on the prohate bond.
We have already decided that a bill of discovery can no longer be filed in this State. Riopelle v. Doellner 26 Mich. 102. This bill was not filed as such, but mainly to enforce an alleged liability which could be enforced a.t law, and which was already in a position to be investigated under the usual course of prohate. An answer under oath was waived by complainants. We think, therefore, that the case was improperly brought, and that it was not competent to grant the decree which was entered below, but that the case belongs elsewhere. We refrain from discussing the facts, because they are heyond our reach in the present suit, and will be considered in the proper tribunal.
The decree must be reversed and the bill dismissed with costs of both courts.
The other Justices concurred; | [
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Graves, J.
The county brought this action of assmrvpsit on the common counts to recover of the township the amount of certain taxes, which the treasurer of the township collected for the county on the assessment roll, and subsequently embezzled. The court sat without a jury, and after making a special finding of facts awarded judgment thereon in favor of the county, and the township alleges error.
By the principles of the common law the township in its corporate capacity could not be subjected to liability to the county for the result of the township treasurer’s misdoing. The general relation between the county and the township in respect to the collection of county taxes, and their return to the county, would not afford any basis for it. In no exact sense can it be said that the township is agent for the county, and no common law obligation,,arises against the township to guaranty the integrity and responsibility of the treasurer.
For simplicity and convenience of administration the law makes use of the township officer to gather and pay over the •county tax. But when it does so and goes no further, the implication is that the local officer is for such function the official agent of the county, and not of the township, and that the county must look elsewhere than to the township for indemnity in case of his misconduct. That such has always been the legislative understanding is sufficiently apparent. There has been no time when a bond from the township treasurer to the county treasurer has not been required.
And the Legislature recognizing that the township was not liable at common law, and deeming that it ought to be made liable in order to afford further security to the county, proceeded to define and fix such liability and declare the remedy to be pursued. The right to pursue the treasurer, or prosecute upon the bond, was not disturbed, the purpose being to allow parallel remedies but of*course only single satisfaction. The provision to which reference is made for bringing the township under liability, is set forth in the Compiled Laws in these terms: “ All losses that may be sustained by the default of the treasurer of any township shall be chargeable on such township; and all losses that may be sustained by the default of any county treasurer, in the discharge of the duties imposed by this act, shall be chargeable on such county, and the Board of Supervisors of such county shall add such losses to the next year’s taxes of such township or county.” Section 1105.
That the loss in question is within this statute appears plainly from the finding, and there is no ground for contending that a lawsuit was necessary to fix the amount. The sum lost was charged against the township on the books of the county treasurer, and he proceeded to prosecute upon the bond, but the result of that action was adverse to the county. The ground of the decision does not appear. But there is no pretense for saying, and it is not claimed, that the asserted loss did not occur. The fact of loss is expressly found. Under these circumstances it cannot be maintained that the adverse judgment in the suit by the county treasurer on the township treasurer’s bond is a bar to township liability under the statute. The actual existence of the loss contemplated by the statute draws after it a positive legal liability on the part of the township which is entirely independent of the failure of proceedings on the bond. It is a,-liability^ by operation of law and has all the positive force the statute could give it.
The failure of the separate and collateral remedy on the contract obligation of the treasurer and his sureties cannot displace it, and it ought not to displace it. The fact that the remedy on the bond turns out unfruitful, is a sound reason why the responsibility' of the township under the statute should be maintained.
Other reasons leading to the same conclusion suggest themselves, but a reference to them is unnecessary. But the fate of the present case does not depend on the answer given to the claim that the suit on the bond barred the liability of the township. As previously stated, the township was not subject to any common law liability in favor of the county, or to any other liability than the one created by the statute already quoted, and as that liability was originated, and the mode of its enforcement prescribed, by the Legislature, it is reasonable to suppose that there was no intention to authorize any course substantially variant. The liability being fixed, no action against the township as at common law is contemplated or seems to be necessary. The loss is to be charged to the township and added to the taxes to be raised therein in the succeeding year.
In case the township authorities refuse to act and to take the proper steps to meet and discharge the liability fixed by the statute, the remedy must be by mandamus. No occasion exists for a suit at law. If a judgment were obtained against the township, the end sought would be no nearer, and the tax payers would be burdened with the expense of an action without any necessity. Marathon v. Oregon 8 Mich. 372; Peterson v. Manistee 36 Mich. 8.
The judgment must be reversed with costs.
The other Justices concurred. | [
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Campbell, J.
This case was argued with another in which one of the questions arose which is shown by this record. The cases however differ in an important particular, and they cannot be disposed of in one decision.
In this case garnishee process was sworn out in the circuit court for the county of Mason, and served in the county. The garnishee made a disclosure completely denying anything which could make him liable. This was January 14, 1880.
On the 19th of January, 1880, demand was filed for the • examination of the garnishee on oath before R. B. Gibson, circuit court commissioner of Mason county. On the same day a copy of the demand was annexed to a notice to .Weimeister directed to him at Howell, in Livingston county, requiring him to appear before Gibson, at his office in Mason county, on January 31, at 10 o’clock A. m. This was served on Weimeister by the under-sheriff of Livingston county, ■on the 22d of January.
W eimeister did not appear, and judgment was rendered by ■default.
This garnishee proceeding is based, not on a suit or judgment in the circuit court, but on a transcript of a justice’s judgment on file in the circuit court. The statute (Pub. Acts 1879, p. 269) allows such proceedings “in all personal actions arising upon contract, expressed or implied, brought in the several circuit courts or municipal courts of civil jurisdiction,” and on “ any judgment or decree rendered in any of the several courts hereinbefore mentioned.” This statute is amendatory of an act which is confined by its title to circuit, courts and to the district courts, of the Upper Peninsula. It could apply, therefore, to no municipal courts but those-whose jurisdiction is similar to that of circuit courts.
While for certain purposes a transcript of a justice’s judgment has the effect of a circuit court judgment, it would be an abuse of terms to call it a judgment rendered in a circuit court. The amendment of 1879 allowing garnishee process after judgment in the manner pointed out, is merely designed to cover cases in which it could have been issued before judgment. This could not have been done under this statute on proceedings before a justice.
The whole proceeding therefore is void, and the judgment must be reversed with costs.
The other Justices concurred. | [
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Graves, J.
Schultz went to work for Beller and took two flags with him, a large one and a small one. He lent the large one to Beller and helped to put it up on Beller’s building. He went away without taking the small one, and per mitted the other to remain flying where he had assisted in placing it. Subsequently a hail-storm in jured it. He sent for both flags and received the small one but failed to receive the other. It was worth $20. He sued in assumpsit before a justice for the value and on these facts was allowed to recover, and the Circuit Court on certiorari affirmed the judgment.
There was no cause of action on the facts. Even where the loan is gratuitous the borrower is not an insurer. The thing is subject to the hind and mode of use for which it is designed, and the risk of such losses as are fairly incident thereto is with the owner unless the bailee has failed in his duty to anticipate and guard against the danger. The thing here was made on purpose to be used as a flag, and the propriety of exposing it as one in the very position and in the very season selected cannot be questioned by Schultz; because in fact that exposure was in substance his own act.. The bailment is not shown to have been abused. There is no proof that Beller failed in his duty., If there was any want of such care to guard the flag against injury from storms as the law would consider due, which is not probable, it was for Schultz to give evidence to prove it. He gave none whatever, and it is not to be presumed that Beller was in fault.
The failure to get the flag back is not traced to Beller. The case goes no further than to say that Schultz sent for it and did not receive it. Where the fault lay, if there was any, does not appear and cannot be inferred. Certainly it cannot be imputed, without proof, to Beller. It may have been obtained from him in'answer to Schultz’s request, and been miscarried or otherwise disposed of thereafter without his, Beller’s, agency. Or it may be that no request was made to Beller to deliver or surrender it. . There were no facts to affect Beller with liability in any form and it is needless to inquire whether assumpsit might have been maintained in case the evidence had shown an abuse of the alleged bailment.
The judgment must be reversed with the costs of all the courts. ‘
The other Justices concurred. | [
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Marston, C. J.
Some of the questions raised in this case are not only interesting, but of such importance as to demand great care in their examination and in the discussion and disposition thereof.
The following statement of the case is taken from the briefs of counsel for the respective parties: In January, 1878, the complainant was an ice company-in Detroit doing a general ice business, and was lessee of a portion of Belle Isle in the Detroit river, consisting chiefly of water front. The respondent steamer was a ferry boat used and employed in ferrying between Windsor and Detroit. Occasionally she. was used for towing upon the Detroit river and adjacent. waters. On the leased property, running along inside of the channel bank of the Detroit river, the complainant had constructed a boom 3600 feet long, containing 1,099,600 square feet, outside of a line fifteen feet from the shore.
On the shore, adjacent to this pond, complainant had fifteen ice houses, capable of holding about twenty thousand tons of ice. On January 11th, 1878, this pond was frozen ■over with hard, clear ice, six inches thick. On that day the Detroit river was entirely open, and the steamer was taken by her master from her dock below Belle Isle up beyond, then turned and run down part way, thence up, then down, up again, then down to Detroit. Complainant claimed that the steamer was run on these trips unusually near the boom, and that the swell caused by the steamer broke up the ice in the boom so that complainant was unable to harvest it. The width of the channel of the Detroit river opposite this boom, was upwards of eighteen hundred feet. This was the first crop of ice that had formed that winter, and the weather thereafter was so mild that no more ice fit to cut formed in the boom ; consequently complainant failed to get a stock to-fill its ice houses.
The case was heard in the court below without a jury, and judgment was rendered in favor of complainant for one thousand dollars damages. Both parties appealed.
The complainant appealed because the amount awarded was considered inadequate. The defendant presents several objections in this court: that the amount of the decree is larger than the evidence warranted; that the mildness of the winter of 1877-8 was the proximate cause of any injury suffered by complainant, and that the respondent is not liable for such an injury; that the court should have adopted as the correct rule of damages “ the. true value of the ice, or rather the privilege of taking it — what it would have been shown to be had the matter been settled or the case tried on the very day the ice was broken that conceding the respondent to be liable, which was not done, the value .is to be determined as on the day the ice was broken, and upon the probabilities, based upon the ordinary course of events, relating to such matters. It being alleged that the steamer did not keep in the channel of the river and away from the boom — which if she had done no damage would have been done the ice — the respondent, in answer thereto, claims that the right to navigate any portion of Detroit river, between its banks, is not subject to the rights of parties having property along the shore that may be injured by the swell occasioned by passing steamers, and that no such burthen can be attached to the right of navigation. The respondent farther claims that if the only object the master had in going up the river was to break the ice, he in so doing was acting entirely beyond the scope of his employment, for which neither tlie vessels nor the owner would be liable. It was also claimed that the steamer, having been bonded and released under the-statute, a decree against the vessel was unwarranted. This complainant’s counsel conceded, so no farther notice thereof need be taken.
There was very great difference in the opinion of witnesses as to the value of the ice. Complainant’s witnesses, in view of the season and subsequent scarcity of ice, valued it at two dollars per ton; some, indeed, still higher. The quantity was fixed at about thirteen thousand tons. The defendant’s witnesses, some of them, say that on January 11th, the time of the injury, the ice had no value, as it was not fit to cut; that six-inch ice could not profitably be cut, and that it was early in the season, when ice in its place might be expected to form. Others placed a value on the entire crop of from three to seven hundred dollars. That the ice was broken and destroyed for complainant’s use by the swells caused by the steamer, we have no doubt; and owing to the width of the • channel this could have been avoided without delay, danger or additional expense to the steamer. If we accept the evi- ' donee of the master as true, that his business in going up the river the first time was to ascertain the condition of the ice in Lake St. Clair in order to determine whether he could, with safety, on the next day go after and tow through a vessel ; that in going up the second time he desired to ascertain whether the American channel was open, having omitted; so to do on tlie first trip; and that the occasion of his third trip up was that he might cross over and enable a party on board, who was interested in the ice business, to see whether there was ice in a bay across the channel — it woiild not avail the defendant. It would still appear that the injury was done through gross carelessness, while the steamer was otherwise lawfully engaged.
Was then the respondent’s right to navigate the Detroit river subject to complainant’s right of property in this case? Ordinarily it may be said that the entire width of the highway may be used, yet the owner of the land over which it passes may, within the limits thereof, plant trees, set posts and do such other acts as will add to his convenience or assist in beautifying his premises. He is encouraged in doing this by public sentiment; in the remission of taxes by the public authorities, for the planting of trees; and in the protection which the law gives him by the punishment of those who interfere with or destroy what he has done. Public convenience may in time in particular locations require the removal of some of these things, and whenever the necessity arises and the public authorities request their removal, then the private must give way to the public or paramount right. Put while permitted to remain, no one traveling the high, way could wilfully injure or destroy them, and should any one do so he would justly be held responsible notwithstanding his plea of a claim of right to travel over any part of the highway. If the law were otherwise, the streets in our cities and villages, and our public highways, would soon be stripped of their shade and ornament. Clark v. Dasso 34 Mich. 86.
So in cities the right to use the public streets whereon to deposit materials for building purposes is frequently granted and enjoyed. Has the traveler the right unnecessarily to wilfully or negligently drive over and break, mar or destroy such materials upon the plea of a right to use the highway ? The law in this country requires the owners of vehicles, when meeting, each to bear to the right, yet it has never been supposed that a neglect so to do on the part of one would justify the other in wilfully or carelessly injuring the person thus in the wrong. A teamster may temporarily encumber a part of the highway while loading or unloading; and while thus exercising his right, another cannot insist upon occupying the same place, or carelessly drive into and injure his team or vehicle. Cary v. Daniels 8 Met. 478 ; Daniels v. Clegg 28 Mich. 32.
The right of fishing in our public navigable waters is one largely and profitably enjoyed, and in order to carry on the business successfully it frequently becomes necessary to set nets extending into the river channels and the deep navigable waters of our lakes. This may, and to a limited extent does, cause vessels to change their course in order that the property of the fishermen may not be injured or destroyed. The master of the vessel would not be justified if he should unnecessarily or wantonly run his vessel upon the nets and destroy them. Post v. Munn 1 South. (N. J.) 61.
So in the rafting, running and towing of logs in our navigable waters, vessels are sometimes necessarily delayed or caused to change their course ; yet in cases where the owners of the logs were exercising due care and reasonable diligence, the vessel must suffer the temporary delay or inconvenience caused. So in establishing dock lines and boom limits on our rivers and lakes, the channel is frequently encroached upon in order to reach deep water, that the right may be useful and valuable; and although the channel may thereby be narrowed, yet if ample room for the purposes of navigation remains, the owners of vessels cannot complain. Of course the right of navigation is paramount and no unreasonable or unnecessary obstruction can be permitted to interfere therewith; but while this is so, yet the riparian proprietor and the public do not thereby lose all right to use the stream for any other and legitimate purpose which will not unreasonably interfere with the right of navigation. The right of navigation, while paramount, is not exclusive, and cannot be exercised to the unnecessary or wanton destruction of private rights or property, where both can be freely and fairly enjoyed.
Bnt in this case the vessel did not rnn into the boom, and therefore it may be said the case is not parallel with those we have been considering. The principle however is the same, which recognizes tlie superior right of the vessel, bnt punishes any abuse of that right. It is also clearly apparent that vessels have not an exclusive right to use the entire channel, which may be narrowed or used for purposes, some of which, are but remotely if at all connected with the subject of navigation. It is well known, as this ease proves, that there is a class of vessels navigating our lakes and rivers which cause, when running, very great commotion or swells in the water. It is also well known that on many of the rivers a class of lighters and barges are used for the lighter-age or necessary transportation of the agricultural, manufacturing and mining products of the country. This class of vessels are often loaded to the water’s edge, and in smooth waters are thus considered perfectly safe, and yet they could not venture oirt where the winds or waves could reach them. "Would a steamer approaching such a tow, where it was clearly apparent the swell she created would endanger the lighter or cargo, be justified in recklessly pursuing her course at full speed, in case damage resulted ? Upon some of our rivers and water highways artificial banks have been formed for the benefit of commerce, and to prevent a spread of the waters over the adjoining country. The swells caused by steamers of a certain class would, by washing such banks, and otherwise, weaken and injure them, and thus create danger of public and private damage. Such dangers are frequently guarded against by legislation or rules of the highway, but it may be questionable whether such regulations are not merely declaratory of the common law maxim that a man must enjoy his own property in such a manner as not to injure that of another person. So the right to boom logs is necessary to their profitable manufacture. The owners must therefore be protected in this right, else it would be of but little value. Yessels would have no right to destroy them, or wantonly run so close to them as to cause a loss of the property therein. A vessel has no right to wantonly run so close to the shore, to a boom or to a dock as to canse damage which could easily be avoided by standing farther off.
In the case at bar the complainant had a right, under its lease, to enjoy the ice in its boom, and store it for use and profit. Lorman v. Benson 8 Mich. 18. The owners of the defendant boat had a right to navigate the Detroit river, but in doing this they were morally and legally bound to do no wanton injury to the property of others. It was clear to all that the agitation of the. water caused by the boat was breaking and destroying the ice, and it was well known to those in charge that there was abundant room for the vessel to proceed on her course without deviation or delay, and at such a distance from complainant’s boom that no injury whatever would have been done. Forsuch an injury we are of opinion the vessel should be held liable.
“ Though a man do a lawful thing, yet, if any damage thereby befalls another, he shall be answerable if he could have avoided it.” The maxim Sio wtere ete. — u So use your own property as not to injure the rights of another,” — is of very general application in cases of conflicting interests, and, it has been observed, will “genei’ally serve as a clue to the labyrinth in such cases.” Broom’s Legal Maxims, 357 et seq.
As to the measure of damages. Defendant’s position, if correct, must be of general application. Let us test it. Suppose a person goes upon the lands of his neighbor and wilfully destroys his growing crops while immature, what should be the measure of damages ? — -the value of the crop in its then condition ? If so, what would be the value of a crop of potatoes when the tubers were just forming % of a crop of apples where the tree was destroyed while in full blossom ? of a crop of corn when commencing to tassel, or of wheat where the heads were forming ? In the two first there would be no value whatever, and in the second for fodder only. Would the value in each ease at the time of the injury be the measure of damages ? or would the injured party be permitted to show what the matured crop, in all probability, would have been, for the purpose of recovering the damages he had sustained ? If the value at the time of the injury •only could be recovered, a way would thus be pointed out for parties to be avenged of their adversaries with impunity.
In the opinion of some of the witnesses six-inch ice was of but little if any value, owing to the difficulty of cutting and storing ice of that thickness; and some were of opinion that ice less than six inches had no present market value. If so, and the then value would be the measure of damages, then an ice company could with safety destroy the ice of its rivals, if only done at a time when the ice was not of sufficient thickness to cut and store. A daily breaking up of the ice would accomplish the desired result without danger of excessive damages or of any considerable liability. Such a rule would simply be one of gross injustice, and it is only necessary to thus carry out the position taken by counsel to show the injustice thereof.
The owner of the growing crops would not be limited in. his recovery to the value thereof at the time of their destruction, nor to the fair rental value of the lands. If the action were brought at once, and a trial had, the prospective yield and value of the crop when matured might be shown. The proof might be unsatisfactory and uncertain, and largely a matter of opinion. Such considerations should not, however, absolve the wrong-doer, and the dangers, if any, from such a rule, he should incur. If such an action were not commenced or tried until after the time when such crops would have matured, the same elements of uncertainty would not exist. It would then be known whether the season had been a favorable or an unfavorable one; the yield per acre in that vicinity; the market price of the crop; the expense — all •could be ascertained with tolerable certainty, and why should the law exclude such proofs ? The law affords abundant instances of eases analogous to the present, where the extent :of the injury cannot be ascertained immediately thereafter, and where evidence is permitted to be 'given to show the probable extent thereof, or if sufficient time has intervened before the trial, to show the actual result. In all such cases the extent of the injury can be ascertained with reasonable certainty.
It is said however that this is permitting the damages to be enhanced by particular seasons and circumstances over which the wrong-doer had no control, to which he in no way contributed and could not have anticipated. What- the anticipations of the wrong-doer may be is important only when exemplary damages are demanded; the law measures the damages in other cases regardless of intentions. But why should not exceptionally favorable or unfavorable seasons be considered in this class of torts ? In the ordinary case of the breach of contract the contractor may show that the season turned out a favorable one, and the effect thereof upon the profits he would have made. Burrell v. New York etc. Salt Co. 14 Mich. 38. So where there has been a breach of a contract, and the party not in fault has had to proceed and employ others in an action to recover the damages sustained he may show an advance in the price of materials and labor after the breach. So if a person should let his farm to another on shares, or his mill for the season for a portion of the profits, why should he not be permitted to prove, in view of the season, what his probable share of the crops would have been on his proportion of the profits of the mill had the contract been fully performed ? Why should not the favorable or unfavorable season enter into the question ? All look to the favorable times and seasons to make their profits, and to recover back the losses they sustained during the unfavorable ones, and it is not for the wi’ong-doer to say they shall not.
It is undoubtedly true that there are exceptions and limitations to be considered. Thus, for the breach of a contract, extraordinary or uncontemplated contingencies are considered as too remote to affect the damages. Clark v. Moore 3 Mich. 55; Michigan Central R. R. Co. v. Burrows 33 Mich. 6. Even in the case of a wrong-doer he may take or destroy personal property of a certain kind, such as live stock, which gave promise of, and in time might have been, of great value, but which, because of its immaturity, was of but little value comparatively. The future would be altogether too uncertain and dependent upon too many contin gencies to base any estimate or make any calculation thereon. The expense attending its growth, the risk of accidents or death, and the utter uncertainty of its development and value consequent thereon, necessitate an adherence to its value at the time of the wrong done. Even in such a case there are surrounding circumstances in the past history and present promise of the property which may be taken into account and fix the value far above what it otherwise would be.
It is somewhat difficult to say in which class this case belongs, or to lay down any distinct rule that should govern in all such cases. There are uncertainties surrounding a case like the present which should not be overlooked; "Would all the ice in this boom, estimated at 13,000 tons, have been gathered and safely stored had not the injury been done? The question is not what could possibly have been done had the ice not been broken, and complainant, on the morning of that day, known that it must save that ice or obtain none that season. Such knowledge would undoubtedly have caused an extra effort to be made, and perhaps saved all of it; but in the absence thereof, and in view of the weather that might at such a season reasonably have been anticipated, would complainants have made such effort? They say they would — this, of course, in view of what afterwards took place — but of this we are not certain. There is not the same reasonable certainty in this case that the crop would be harvested that exists in reference to other crops. The condition of the weather would more easily affect a crop of ice. Would the complainants, in hopes of more favorable weather and better ice, have waited and thus, lost the whole or the greater part thereof? These are proper questions to be considered ; and although, in the light of what followed, complainants say they intended to and would have put on an extra force, and thus have saved it, yet it is not clear to our minds that they would have done so.
These are risks attending the business and which the complainants must have run even had the ice been uninjured by the boat, and for such risks the defendants should not be held responsible. In other words, while the short crop and scar city of ice the ensuing season, and value consequent thereon, should be considered in placing a value upon the ice destroyed, yet this can only be done upon the basis that complainants would have saved that ice, and for so much of it as they would in all probability have saved they should recover the full value, less the cost and expense of harvesting it. The defendants, while justly responsible to this extent, yet should not be held as insurers of its safe storage, as this was a risk the complainant, in any event, must have run. There is evidence in the case that ice under somewhat similar conditions, about that time, owing to the unfavorable weather, was almost wholly lost.
In view therefore of all the circumstances of this case, of the preparations made by the plaintiff before the injury to harvest this ice, the weather thereafter and the uncertainty of gathering and storing it, of the season following and the price of ice, we are of opinion that the complainant should recover two thousand and five hundred dollars damages and costs.
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Marston, C. J.
Hill sued defendant in trespass to recover damages for injuries sustained caused by defendant’s careless driving upon a public highway. The plaintiff was called as a witness in his own behalf,.and upon cross-examination he was asked if he was not in the habit of running horses in driving on the highway up to the day of the accident; and whether he was not in the habit of using intoxicating liquors to excess whenever he came to the village, and frequently drove out of town while under the influence of liquor. These questions were objected to, and the objection was sustained by the justice, and we have no ‘doubt but that the ruling was correct. It was hot pretended that at the time of the injury plaintiff was either running horses or intoxicated. His previous habits, therefore, in these respects, would afford no excuse or justification to the defendant; rather should he have been more careful because thereof, if known to him.
The judgment of the circuit court must be reversed and that of the justice affirmed, with costs of both courts.
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Marston, C. J.
Complainant seeks to foreclose a mortgage executed to him by John Eice and wife, and conditioned that Abner J. Griffith and said Eice should well and truly perform the conditions of a certain written agreement entered into by them with said Lambert, and dated August 25, 1873.
The matters in dispute relate to the allowance and disallowance of certain items in the settlement of the accounts of Lambert with the firm of which he had been a member. As this settlement is made under and in pursuance of the agreement of August 25th, a proper construction thereof may aid us in coming to a correct conclusion.
Complainant and defendants Eice and Griffith, previous to the date of this agreement, had been engaged in business under the firm name of Griffith & Co. Complainant, for a part of the time at least, had charge of the books and finances of the firm.
By this agreement Lambert agreed to sell to Griffith & Eice his interest in the property and effects of the firm, and also to surrender up a note for $4000, which he held against the firm. In consideration thereof they agreed to pay the firm debts, and to give complainant a bond of indemnity against such debts and demands. They also agreed to save and release him from all liability upon a firm note for $4000 which Eice held, and also agreed to pay him $4000 by assigning to him a bond or contract of Thomas Jones, which was to be taken at $2500, and they agreed to give him their promissory note for $1400, payable five months from the date thereof, without interest. The contract contained this clause: “ There shall be deducted anything that may be found due to the parties of the second part by reason of "the appropriations or omissions of the party of the first part (Lambert) to account for any sums that may have come into his hands as a member of the firm of Griffith & Co., and not accounted for.” They farther provided that the balance found due after such deductions Griffith & Rice should pay in one year, with ten per cent, interest. '
The contract farther provided for an examination of the books of the firm, in order to ascertain the moneys received and not accounted for, and provided for an arbitration “ to determine and award the amount so due to said parties of the second part by reason of the withholding of any money or moneys so received, and also shall so hear and determine and award how much, if anything, said party of the first part has paid out and not credited himself with on the books, and the balance so found due, if anything, to parties of the second part shall be deducted from the said sum of four thousand dollars; and if anything shall be found due to said party of the first part, such sum shall be added to the said sum of four thousand dollars.” The parties agreed upon did not meet and adjust the accounts.
Under this contract Griffith & Rice agreed to pay complainant $4000 for his interest in the firm. If they claim such amount should be reduced by reason of firm moneys received by complainant and not accounted for, they must show the same; while if complainant claims that this sum should be increased on account of moneys paid out by him for the firm and not credited to him on the books, the burden of proof is upon him to that extent. Bearing this in mind, we will have less difficulty in passing upon the disputed items, where there is any doiibt concerning them. Although this case was once sent back to enable the parties to take additional proofs, in order to remove some doubts then existing, it is somewhat singular that no attempt was made to ascertain from the firm books whether there was a balance in complainant’s hands unaccounted for. The parties have thought proper to confine themselves to particular items, and even as to some of these the existing uncertainties which we think might have been removed, are not.
The first item disallowed in the report of the commissioner, and to which complainant excepts, is that of $1000 deposited in the bank to the credit of the' firm by Bice for Griffith. This was charged to complainant because, although appearing on the firm books, it was not accounted for on the cash book kept by complainant. It appears this money was all paid out by the bank upon the checks of the. firm. Indeed, this was the only way it could be reached, and we have not found any testimony which shows that complainant appropriated to his own use any part of the funds so drawn out. As already said, it is not sought to charge complainant with a general balance, but with particular items, and when it appears that such sums have gone to the credit and use of the firm, we cannot charge complainant therewith, whether appearing upon the cash book of the firm or not.
The next item of importance is a draft, $45, received of E. Coblitz. The books show the receipt of this draft, and a credit to Coblitz of the amount thereof, but no credit to the firm. There was at a different time another draft of a like amount received and credited to Co blitz and to the firm ■ and it is claimed these two entiles pertain to one and the same draft, the first when it was received, and the second entry when the draft was paid. This may be true, and it is singular that other competent testimony within reach was not obtained to clear up this doubt. Prima facie two separate drafts were received and paid, and complainant must be charged accordingly. The A. P. Mills draft was accounted for, and the report of the commissioner in respect thereto is correct.
The explanation of the $400 paid in by Lambert, as given by the commissioner, we do not fully understand. This sum was unquestionably paid into-the bank by complainant to the credit of the firm and used by the firm, and we are not satisfied that he received credit therefor.
The amount of $999.52, claimed by the complainant as due him from the firm at the time of the dissolution, is not covered by this mortgage, and cannot therefore be allowed. The report of the commissioner, and for the reasons given by him, as to this item, is correct.
These are all the matters we consider of sufficient importance to examine in detail, covered by complainant’s exceptions. The defendants do not appeal, but under the rule adopted in Grant v. M. & M. Bank 35 Mich. 515, we will examine defendants’ exceptions. Some of the defendants’ exceptions are so general that they cannot be noticed.
The first item is one of $5 interest, which we are of opinion comes within the terms of the contract, and should have been charged to complainant. We agree with the commissioner that as to the two items, one of $31.50 and one of $10, said to have been received of Nice, it does not appear that complainant received these sums, and we also agree with him in his allowance of the Jones & Langhlin account, $139.66, and also in allowing for the king bolts, etc., not delivered to complainant.
Under this view there should be added to the amount allowed complainant by the decree of the court the sum of thirteen hundred and ninety-five dollars, with interest at ten per cent, from August 25, 1873, the date of the mortgage. The decree will also provide that the $1500 payment of June 15th (Exhibit 6) shall be cancelled, and complainant will recover costs.
The other Justices concurred. | [
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Cooley, J.
This case was once before in tbis court, and the decision is reported in 40 Mich. 610. The suit was by Ereoff in trover, for the conversion of various articles of personal property. The defense was that Brink sold the same to satisfy the amount of a chattel mortgage which she held upon them. But it appeared that the mortgage was payable in instalments, only one of which was due, and that Brink in selling disregarded that fact and sold property to satisfy the whole amount. The controversy turns upon the rule of damages ; it being conceded that Brink, in proceeding to sell further after what was due had been satisfied, was chargeable with a conversion.
It was shown by Ereoff that sometime after the sale he tendered to Brink the amount of the mortgage, and demanded his property back. On the first trial of the case the circuit court held that as such a tender would discharge the lien of the mortgage, it would entitle Ereoff to recover in trover the full value of the property which had been wrongfully sold. But this court held that such a tender, accompanied by a demand which Brink, by reason of having parted with the property, could-not comply with, would be an idle ceremony. Also that though Ereoff was entitled to recover for the sale of any further articles after the instalment which was due had been satisfied, yet that the recovery must be limited to actual damages. These damages would consist in the value of the articles wrongfully sold, and such others, if any, as the wrongful sale had caused, less the amount which Freoff would have been obliged to pay to satisfy the amount uot yet due on the mortgage when the sale was made.
The second trial has evidently proceeded upon a misapprehension of our opinion. The jury were instructed in substance that if Freoff tendered to Brink the amount of the mortgage, less the amount of the first instalment which had been rightfully paid by the sale, and if he attached no condition to the tender,_ and Brink refused to receive it, Freoff was then entitled to recover the value of the property wrongfully sold, irrespective of the amount remaining unpaid. This was precisely the ground of the first recovery, which we held to be erroneous, except that the instruction in this case required the tender to be unconditional, while on the first trial it wras understood to have been made on condition that the property be restored.
An examination of the opinion of Mr. Justice Marston in the former case will make it apparent that the conditional nature of the tender had nothing to do with the decision. Indeed, the opinion was intimated that the mortgagor of chattels in making tender of the amount due on the security, has a right to require surrender of the property; but in the particular case such a requirement was an idle ceremony, because compliance had been rendered impossible by the sale. It was not the condition that made the tender useless, but the impossibility of complying with the demand.
A moment’s consideration of the position of the parties at the time this tender was made, will show, as we think, the reasonableness of our former decision. Brink had wrongfully sold a portion of Freoff’s property, and the latter was entitled to recover its value. But if this were recovered, the mortgage debt would remain unsatisfied, and Brink could recover from Freoff the balance owing upon it. But the proceeds of the property sold had been actually applied to satisfy the mortgage, and Brink when mone.ys were tendered to her in repudiation of the sale had refused to receive them. Why under the circumstances should not this application be allowed to stand, and the whole controversy between these parties be determined in one suit instead of permitting Freoff to recover the whole value of the property in one suit, and Brink immediately to recover back that portion of the value which she had already ajaplied on the mortgage? We could discover no reason for preferring the latter course to the former. The law abhors needless litigation, and two suits to adjust the equities of the parties in a single transaction, when they can just as well be adjusted on the same principle in one, should not be tolerated.
On another point the previous opinion was perhaps misunderstood. It was said in that opinion that Freoff was entitled to add to the value of the property any special damages he might have sustained. By this was meant any damages additional to the loss of the value of the property. But these could only be recovered under the rules of law; and it is a familiar principle that damages which are peculiar to the case and spring from exceptional circumstances must be specially alleged or they cannot be recovered. In this case there was no allegation whatever of special damages, and therefore plaintiff was entitled to recover only such as might naturally follow in any case of unlawful conversion, irrespective of special circumstances. Nevertheless, evidence was taken in the case that plaintiff sustained by the conversion damages to a large amount: one witness estimating them much beyond the value of the property, but not explaining how this was possible. Of course such evidence had no warrant in the pleadings.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Marston, C. J.
Some of the questions discussed we think do not fairly arise upon this record. The action is brought against the sheriff for releasing a quantity of iron levied upon by him by virtue of certain executions in favor of the plaintiffs against the Marquette & Pacific Polling Mill Company.
The controversy is narrowed down to 30-| tons, which the sheriff claims was the property of Sylvester T. Everett under a contract with the company dated August 1st, 1877. Ten and a half tons of this iron was made previous to the date of the contract with Everett, and although sought to be applied thereon afterwards, yet it previously had been mortgaged to S. Coles as security for a debt of the company.
The record sets forth that “ 30£ tons had, by consent of said Everett, been pledged by said Polling Mill Company to S. Coles of Marquette, to secure an indebtedness for supplies advanced by said Coles to employees of said company, to the amount of $521.97, and that said pledge had been made by giving to said Coles two receipts for said iron as it lay piled on the dock as aforesaid, and marking each pile with the initials ‘ S. O.’ ” These receipts were as follows :
“Peceived, Marquette, July 28, ’77, on the Polling Mill dock, twenty-five tons pig iron in piles Nos. 1, 2 and 3 ; 14-J-tons of the above to be held by S. Coles as security for note of the Marquette & Pacific Rolling Mill do., due Aug. 18r ’77 — $300. The balance, 10£ tons, to be held by S. Coles as security for note of the M. & P. R. M. Co., due Sept. 2, ’77 — $221.97. When said notes are paid, the said iron is released and reverts to W. W. Wheaton, ag’t.
“ W. W. Wheaton, Tr. and Ag’t.”
“ Rec’d check on 2nd National, Cleveland, $304.08, to take up note due Aug. 15, 1877.”
“ Received, Marquette, Sept. 19, ’77, on the Rolling Mm dock, twenty (20) tons pig iron in piles Nos. 4 and 5, to be held by S. Coles as security for note of the Marquette & Pacific Rolling Mill Co., due Oct! 22, ’77 — $360. When said note is paid, the said iron is released and reverts to W. W. Wheaton, ag’t.
“ W. W. Wheaton, Ag’t.”
Wheaton was the “ treasurer, general manager and agent ” of the Rolling Mill Company.
The first levy was made October 3, 1877. After the levy was released, this iron was shipped to Everett, he having paid Coles the amount of his claims thereon. There was evidence tending to show that .this iron was not marked with Coles’ initials or in any way, at the time the first levy was made.
Without passing upon the title, if any, which Everett acquired or took under his contract before inspection, acceptance or any other act was done to designate it as his, or to show that it was of the quality specified in his contract, let us see if this iron does not stand upon a different footing.
This iron was, with the consent of Everett, pledged by the company as its own property to secure a company debt, and was to revert to the company upon payment of the debt. This constituted a clear waiver by Everett of his rights under the contract. Under Ms contract he was entitled to the first three thousand tons of No. 1 Bessemer iron manufactured by the company, and the company was not to manufacture any other iron until this quantity was made, and so fast as made it was to become the property of Everett.
As already said, whether Everett could or could not insist upon and claim the iron, as manufactured, to the amount specified, it is clear that he could waive his right, and permit the company to sell or mortgage some of the iron as manufactured and in lieu thereof take iron subsequently manufactured. If he permitted or consented to a sale thereof no pretense could be made that he would not be bound thereby, and in case of a mortgage thereof he clearly would have lost all right as against the mortgagee. Would his waiver in case of a mortgage extend beyond this ?
If the property was mortgaged to the full value thereof, as it is conceded this was, or even if not to the full value, it could hardly have been the intention of the parties that the iron so mortgaged could be considered as a part of the three thousand tons. If so, he might in addition to the contract price, be compelled to pay the mortgage debt, which was not his to pay, or if not paid, to lose the property on a sale thereof under the mortgage, and if sold under the mortgage to the mortgagee or a third party, none would claim that the iron so sold could be charged to Everett as a part of the three thousand tons which his contract called for. This also must have been the understanding of the parties. The security was given to Coles with Everett’s consent, and when the debt secured thereby was paid, “the said iron is released, and reverts to W. W. Wheaton, ag’t.” Wheaton was the agent of the company and not of Everett. Had this iron been mortgaged to Coles without the knowledge of Everett, a very different question would have arisen, viz., the right of Everett to the iron under his contract. By his consent he permitted the company to treat the property as its own, to pledge it for the company’s debts, and to provide for its return to them upon payment of the demand. This was utterly inconsistent with an absolute ownership in Everett. The iron being then the property of the company, the execution debtor was liable to levy, subject to the right of Coles.
It is not claimed that anything in the nature of a mortgage or notice, was placed on file in the proper office as required by our statute. By whatever name the arrangement with Coles may be termed, the object and only one was security for a debt. To be good as against the creditors of the Boll ing Mill Company, the proper instrument not having been placed on file, an “ immediate delivery followed by an actual and continued change of possession ” was absolutely essential. No such delivery and actual and continued change of possession of such bulky property could be expected or insisted upon. Tet there should be, even of bulky articles, such a clear and unequivocal designation thereof that creditors or subsequent purchasers could not be misled or be in- doubt as to the nature of the transaction. What this should be, must be a question for the jury under proper instructions. It must also in this connection, be borne in rnind that the creditor can protect himself by filing in the proper office his mortgage, or a 'copy thereof, where the articles are of that bulky nature that a symbolical delivery only can be made, and they are permitted to remain in a place where the possession may be equivocal or what could not be said to be an actual possession. Under such circumstances, where doubts exist, they must be solved in favor of the purchaser or creditor, and against the mortgagee, because he having power to protect himself fully and prevent others from being deceived, has not done so.
When we turn to the charge we find it even more favorable than the above would warrant, and that the plaintiff in error has no cause for complaint.
The judgment must be affirmed with costs. '
The other Justices concurred. | [
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Graves, J.
It is provided in the statute concerning courts held by justices of the peace, that if the plaintiff shall be a non-resident of the county, a summons may be made returnable not less than two nor more than four days from the date thereof, and shall be served at least two days before the time of appearance mentioned therein. Comp. L. § 5264. The plaintiffs in this case being non-residents began the action by summons issued June 25, 1879, and returnable on the 27th and served on the 25th, and the justice sustained the proceeding notwithstanding' the defendant’s objection seasonably made. The circuit court on special appeal ruled that the process was erroneous and reversed the judgment. This was correct. Sallee v. Ireland 9 Mich. 154; Warren v. Slade 23 Mich. 1; Powers' Appeal 29 Mich. 504.
The judgment is affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
Where a court of competent jurisdiction allows an injunction'upon condition that complainants execute a bond to defendants, conditioned to pay any damages they might sustain by reason thereof, and the bill is subsequently dismissed for want of jurisdiction, is the bond so given absolutely void % Such is the question presented in this case, and we must answer that in our opinion the bond is valid.
It is optional with the complainants to give the bond or not. By giving it they put the law in motion and enjoin the defendants from farther prosecuting their business, thus necessarily causing them to suffer damage. The fact that complainants did not state such a case by their bill as would authorize the court to give them the relief prayed for, should not deprive defendants of their right to protection. Even a temporary injunction may in some cases afford complainants all the redress they seek, and if they can obtain such upon filing a bond to pay the damages, and afterwards escape responsibility upon the plea here urged, then the worse the case stated-in their bill-the safer they are. By being careful and stating a case not within the jurisdiction of the court, they escape liability, while had they gone farther and set forth a good cause and yet for some reason failed, they would become liable. We cannot assent to this reasoning. There ■can be no really good reason, not purely technical, for such a distinction,- and the authorities cited by counsel for plaintiffs in. error sustain the right to recover upon the bond and ■should, we think, be followed as more in accord with right and justice.
The judgment must be reversed with costs and a new trial •ordered.
The other Justices concurred. | [
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Marston, C. J.
Whether the respondent in this case could have interposed a valid objection in the police court to the complaint and warrant under which he was arrested, or either of them, either in form or substance, we need not determine. An examination was had without objection and the respondent held for trial, and we are of opinion that he could not for the first time raise such objections when called upon to plead to the information, as the charge contained in the information was embraced in the complaint and warrant and covered by the examination.
The motion made to strike out the testimony of certain of the witnesses was properly denied, as the evidence given, in part at least, was competent as against the respondent, and .the motion to strike out included this also. The court also properly refused to withdraw the case from the consideration of the jury.
We discover no error in the record and it must be so certified to the Recorder’s Court.
The other Justices concurred. | [
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Campbell, J.
Gordon was charged in the Recorder’s Court of Detroit with statutory burglary, but was acquitted of all but simple larceny of property under twenty-five dollars. He was thereupon sentenced to a year’s imprisonment; and brings error.
The recorder seems to have thought that the former decisions of this court in Nelson v. People 38 Mich. 618, and Brown v. People 39 Mich. 57, were no longer operative. It was there held that the general statute for the punishment of larceny and some other offenses, which fixed’a maximum punishment beyond three months, was controlled by the statute of 1849 which restricted the punishment of eases within the jurisdiction of justices to three months’ imprisonment. It was held that both must be read together as referring to a certain grade of offenses in which the law fixing .a maximum penalty had been so altered as to lessen it without changing the definition of the offense.
In 1879 the section fixing the punishment of larceny was amended — not by changing the maximum or minimum of fine or imprisonment, but merely by providing effectually and distinctly what should be,done where a party is fined and does not pay his fine. In this respect the old law had been defective, and attention had been called to it in the decision of Brownbridge v. People 38 Mich. 751. The amendment of 1879 is confined in terms 'to a change to this effect in § 7569 of the Compiled Laws (Pub. Acts 1879, p. 221).
We must either hold that the law of 1849 is entirely displaced by the act of 1879, or else that it remains in full force. That statute is the only one which applies to fix the authority of justices to give criminal sentences. The amendment, if applicable to that act, gives justices full power to impose the sentence which was originally fixed by the Revision of 1846, of one year’s imprisonment. Of course it might be possible to do this. But when a law has been once passed for the express purpose of reducing the term of imprisonment under an old law, any implied restoration, which would operate to repeal an important statute not referred to, must have clean marks upon its face of such an intention. No one would claim for a moment that if § 7569 had been amended as was formerly the custom — not by republishing it as -changed, but only by showing for what part the new clause was substituted —any effect would be produced on the remainder of the section. The constitutional provision requiring amendments to be made by setting out the whole section as amended was not intended to make any different rule as to the effect of such amendments. So far as the section is changed it must receive a new operation, but so far as it is not changed it would be dangerous to hold that the merely nominal re-enactment .should have the effect of disturbing the whole body of statutes in fari materia which had been passed since its first -enactment. There must be something in the nature of the mew legislation to show such an intent with reasonable clearness. before an implied repeal can be recognized. Repeals by implication should not be established without satisfactory reason to believe such was the legislative will. The whole tendency of the strict provisions of the Constitution of 1850 was to prevent the mischief of blind legislation, and to require every change to be made clear to the legislature. ¥e are bound to follow this purpose unless compelled to do otherwise.
We think the law of 1849 governs this case and that the sentence was excessive. As the full time allowed by law has passed, the judgment must be reversed and the prisoner discharged.
The other Justices concurred. | [
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Campbell, J.
Complainant filed his bill to obtain specific performance of a written contract for the sale to him by defendant of certain lands, made November 7, 1872, and providing in addition to $200 down, a further payment 'of $200, November 7, 1873, and $150, November 7, 1874, with interest annually at 10 per cent. According to the bill he paid none of the principal or interest when due, but paid interest November 15, 1873, another year’s interest due November 7, 1874, on February 5, 1875, when he made another payment which he claims was principal, one year’s interest on $300 January 17, 1876, and a similar amount in February, 1877.
In November, 1877, Mrs. White notified him that she should consider the contract forfeited for his default. In April, 1878, he claims to have tendered her $347, which he insists was the amount then due in full payment, and demanded a conveyance, which she refused. He thereupon filed his bill.
The court below granted him specific performance on payment of $404.31, with interest from November 16, 1879, and required complainant to pay costs. From this he appeals and claims that by his tender he became absolutely entitled to a deed.
There are several reasons against any such a claim. He had been in default throughout and had never made a payment of principal or interest on time, and had not paid interest on the whole amount of principal at all, unless allowed to hold $50 of it several months without interest. A party in default on such a contract cannot as a matter of right come in and discharge himself from all responsibility by tendering or paying simple interest. Unless there is some reason to the contrary it is allowable for courts of equity to require compound interest in such cases if justice demands it. In this ease he made no tender until several months after he had been notified of the desire of defendant 'to close the contract. As we figure up the amount due at the time of his tender, under the statutory rule as to instalments, it exceeded the amount which he claims to have tendered.
Moreover he did not make such a tender as defendant was bound to accept, being partly in money which was not a legal tender. But had he tendered the full amount after such a default, we are not prepared to say that the case of a land contract is such that the defendant would as a matter of law be cut off unless herself guilty of very unreasonable conduct. But in this case no such question necessarily arises.
We think the decree was as liberal as he was entitled to under any circumstances and it must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
Stewart recovered in the circuit court in an action of trover, and Mathews urges that errors to his preju dice were committed on the trial. A brief reference to the material facts is requisite.
November 5, 1877, C. F. & A. Draper, being furniture dealers, made a common law assignment to Stewart for the benefit of their creditors. It provided that certain preferred creditors should be paid in full and the rest pro rata, in case the fund should turn out insufficient for the entire payment of all. Stewart took possession and proceeded to carry out the trust by daily sales of the property.
February 2, 1878, and between two and three months after the assignment and possession under it, a petition was filed in bankruptcy against the Drapers, on which they were regularly adjudged bankrupts. Thereupon the usual warrant was issued to take possession of the estate, and Mathews in his capacity of marshal received it for execution. About July 5th, 1878, he proceeded with it to the place where Stewart was still engaged in selling under the assignment, and on explaining'the purpose of his call as being to make seizure of the assigned property by virtue of his warrant, he obtained possession of the unsold portion and passed it shortly after-wards to the assignee in bankruptcy.
On the 27th of May, 1879, and abont nine months later, Stewart demanded of Mathews a return of the property, which was refused, and on the next day this suit was begun.
It has not been claimed that Stewart’s title has ever been passed on judicially. But the ground taken is that the assignment was void as against the warrant and that it may beso adjudged in defense of the marshal in this action. The general view indicated is that the Bankrupt Law, in being put in motion by the filing of the petition, reached back and divested the assignment of all force to shield the property from the process and consideration of the court of bankruptcy. The provision supposed to warrant this position in § 5129 of the Revised Statutes of the United States as amended by the act of June 22, 1874. No other part of the Bankrupt Law is cited in its favor. The counsel on' the part of Stewart deny that this section applies, and insist that the assignment was exclusively subject to the one immediately preceding, being § 5128 as amended by the act of June before mentioned, and to this the court below acceded.
By the amending act referred to, the retroaction of § 5129 was reduced from six to three months, and that of § 5128 from four to two months. Lienee, if the assignment was subject to § 5128 instead of § 5129, it was not within reach of the retrospective operation of the Bankrupt Law - at all, because more than two months occurred between the assignment and the filing of the petition. Judicial opinion has not been entirely harmonious in regard to the meaning and application of these provisions, some judges thinking that common law assignments for the benefit of creditors and with preferential conditions, were covered by § 5129. Still on examination it appears that the drift of authority in the State courts and in the inferior Federal courts has been distinctly in favor of regarding such dispositions as falling-under § 5128.
It is not essential to comment on the disagreeing views which have appeared or to consume space in original discussion, because the question is deemed to have been, in effect, disposed of by the Supreme Court of the United States. Prior to the Congressional Revision the substance of these provisions appeared as two clauses of § 35 of the original act of 1867, and not in the shape of two separate sections, as arranged by the revisers. The alterations made by amend ment and revision, however, produced no change in the sense as respects the question here. The construction which in this particular was due in' 1868 was the proper one ten years later. The question as to which of the two regulations such an assignment as that to Stewart must be referred, was subject to the same answer when the law was repealed as when Gibson v. Warden 14 Wall. 244 and Dutcher v. Wright 94 U. S. 553 were decided.
Now, in the last of these cases one Peterson was adjudged bankrupt on a petition filed on the 8th of April, 1870, and Wright, the assignee in bankruptcy, claiming that the bankrupts on the 8th day of the preceding December had assigned certain of his property to his creditors Duteher, Ball & Goodrich with a view to give them a preference over his other creditors, filed a bill to recover that property or its proceeds as assets of the bankrupt. The point chiefly contested was whether, as the assignment was made on the 8th of December and the filing of the petition was on the same day of the fourth month thereafter, the Bankrupt Law touched the transaction at all. At that time, as before stated, § 5128 reacted four months and § 5129 six months. Of course the assignment was within the time of retroaction given to § 5129. But no one regarded that section as applicable. The case was believed to turn on the point whether the transaction was or was not reached by § 5128. The court observed : “Both parties agree that the petition in bankruptcy was filed April 8, 1870; and it appears both by the bill of complaint and the plea filed by the respondents, that the notes, accounts and property were assigned by the bankrupt to the respondents the 8th of December of the preceding year. Undisputed as the facts are, the decision must turn upon the construction of the Bankrupt Act. 14 Stat. 534; Rev. St. § 5128.” In entertaining and deciding the question whether the 8th of December, the date of the assignment, was within four months of April 8th, the date of filing the petition, according to the intent of the act, and in making the fate of the assignment turn on the result, the court virtually and effectively ruled that the assignment was one of the list of transactions arrived at by § 5128 and not by § 5129. The case can be explained on no other hypothesis. If the assignment was within the description of § 5129, there was ■ no occasion at all for discussing whether the 8th of December was not within four months of the Sth of April, and the court, in holding that the decision of the case hinged on that point, committed an .absurdity.
In Gibson v. Warden the question was distinctly presented whether a chattel mortgage to secure prior indebtedness was within the first clause of § 35 of the act, which became § 5128 of the Revised Statutes, or was within the second clause, which became § 5129, and the court passed on it explicitly. The decision was necessary because certain material results depended on the question of time. The court observed : “Upon comparing the two clauses carefully together we are satisfied that the first clause was intended to refer to the past and the second to the present. The language employed in the first clause imports clearly that the consideration must be one growing out of a former transaction, and that the recipient must stand in the relation thus created to the other party. It is equally clear that the second clause, enlightened by this construction of the first one, must be limited to cases where the transaction in question was original and complete in itself at the time it occurred, and had no reference for its consideration to anything between the parties which had gone before it. It is only by this construction that the two clauses can be made to harmonize and full and distinct effect be given to each. Any other construction would make them cover the same ground and obliterate everything by which one is differenced from the other, except the limitation of time which they respectively prescribe. It is not to be supposed that such was the intention of the law-making power. This view of the subject was taken by the Circuit Court for the District of Missouri, and subsequently there by one of the justices of this court. We can see no answer to the conclusion at which they arrived.” And further on the court refer to the mortgage given . between four and six months preceding the filing of the peti tion, and observe that “being founded upon a past consideration, it falls within the first clause of the 35th section of the Bankrupt Law, which limits the right of attack upon such instruments to those executed within four months prior to the filing of the petition in bankruptcy.”
Now, so far as the matter in hand is concerned, there can be no distinction between a chattel mortgage to secure past indebtedness and a common-law assignment like that given to Stewart. In each case particular creditors are given a preference by the debtor in respect to the assets, and in each case the real consideration is the past indebtedness. Halsey v. Whitney 4 Mason 206; Lawrence v. Davis 3 McLean 177; Flanigan v. Lampman 12 Mich. 58; 2 Kent’s Com. 532; Burrill on Assignments, ch. 15. The circuit judge was therefore right in holding that the assignment fell under § 5128, and that the condemnatory provisions of the Bankrupt Law afforded no aid to the marshal, because the period between the petition in bankruptcy and the assignment exceeded two months.
It was made a question before the jury whether the marshal got control and possession of the property by force of his warrant or by the voluntary act and consent of Stewart, and the point has received much attention from counsel. The subject was not submitted to the jury in a very clear manner,, but we cannot believe that the marshal was prejudiced. In going from Detroit in pursuit of the property, and in making inquiry of Stewart for it and in taking it into possession, he professed to act officially and under color of the warrant, and in no other way. He did not intend to be understood as soliciting something he thought himself not authorized or not able to enforce, and he was not so understood. His position and deportment menaced the exertion of whatever power should be necessary. He held himself out as prepared to seize the property by virtue of process from the Federal court and consequently by authority of the United States, and the reasonable construction of the facts is that Stewart, without forcibly contesting the claim and assumption involved in the doings of the marshal, peaceably and quietly surrendered to the force displayed. He took notice of the fact that violent opposition would be futile and that he was not required to make a show of it for the purpose of being entitled to seek redress by an action at law.- His attitude and conduct in respect to the alteration of possession were not that of one entirely at liberty to hold on or give up according to his own discretion. On the contrary, his will succumbed to the manifestation of irresistible authority, and it does not lie with the party who obtained what he sought by the holding out of that authority to now construe the peaceable submission to its demand as an act of free and positive assent.
In the course of Stewart’s testimony the court was requested to strike out as incompetent all he had then sworn to in regard to the value of the property. This was properly refused. A portion, at least, of the testimony he had then given relative to the value was competent beyond all question. No objection had been made, and the witness had shown his acquaintance with the goods, and the fact of having made sales from the stock during several months, and the total amount of those sales. He had also given his judgment of the comparative value of the portion taken by the marshal. His evidence had a direct tendency to show the value of what had been sold, because he stated what it had actually brought. And from his own intimate knowledge of the goods it was reasonable to suppose he was qualified to estimate correctly what those taken were worth. It was for the jury to say what the testimony proved. Further evidence in regard to value was given afterwards. The request to charge that there was no evidence of value does not call for remark.
The plaintiff in error failing to establish any ground for reversing the judgment, it must be affirmed with costs.
The other Justices concurred.
The sections of the Bankrupt Law ref erred to in the opinion are as follows:
Sec. 85. That if any person, being insolvent, or in contemplation of insolvency, within four [two] months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and [knowing] that such attachment, [sequestration, seizure,] payment, pledge, assignment, or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it, or so to be benefited; and if any person being insolvent, or in contemplation of insolvency or bankruptcy, within six [three] months before the filing of the petition by or against him, make any payment, sale, assignment, transfer, conveyance, or other disposition of any part of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and [knowing] that such payment, sale, assignment, transfer, or other conveyance is made with a view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under this act, or to defeat the object of, or in any way impair, hinder, impede, or delay the operation and efíecl of, or to evade any of the provisions of this act, the sale, assignment, transfer, or conveyance shall be void, and the assignee may recover the property, or the value thereof, as assets of the bankrupt. And if such sale, assignment, transfer or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall b % prima fade evidence of fraud. Any contract, covenant, or security made or given by a bankrupt or other person with, or in trust for, any creditor, for securing the payment of any money asa consideration for or with intent to induce the creditor to forbear opposing the application for discharge of the bankrupt, shall be void; and if any creditor shall obtain any sum of money or other goods, chattels or security from any person as an inducement for forbearing to oppose, or consenting to such application for discharge, every creditor so offending shall forfeit all right to any share or dividend in the estate of the bankrupt, and shall also forfeit double the value or amount of such money, goods, chattels, or security so obtained to be recovered by the assignee for the benefit of the estate.
The sections on the same subject in the Revised Statutes of the United States are as follows:
Sise. Í5138. If any person, being insolvent, or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures or suffers any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person 'receiving such payment, pledge, assignment, transfer, or conveyance, orto be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and knowing that such attachment, sequestration, seizure, payment, pledge, assignment, or conveyance is made in fraud of the provisions of this title, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it, or so to be benefited. And nothing in said section five thousand one hundred and twenty-eight [thirty-five] shall be construed to invalidate any loan of actual value, or the secui'ity therefor, made in good faith, upon a security taken in good faith on the occasion of the making of such loan.
Sec. 5129. If any person, being insolvent, or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of any part of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and knowing that such payment, sale, assignment, transfer, or other conveyance is made with a view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under this title, or to defeat the object of, or in any way impair, hinder, impede or delay the operation and effect of, or to evade any of the provisions of this title, the sale, assignment, transfer, or conveyance shall be void, and the assignee may recover the property, or the value thereof, as assets of the bankrupt. | [
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Campbell, J.
The proceedings in this cause arose under the act for the punishment of contempts in aid of civil remedies. Coots, who is sheriff of Wayne county, was entrusted with an execution from the Superior Court of Detroit on a judgment in favor of the relator against Salmon S. Matthews, and others. This judgment was based on a trespass by Matthews who was United States Marshal and seized as belonging to parties named Schott and Feibisli, property belonging to Samuel Schwab the relator. Considerable litigation has arisen in various ways out of these proceedings, which have been before this court once for consideration as to the validity of that judgment: Mabley v. Judge of Superior Court 41 Mich. 31, and indirectly in Hudson, relator v. Judge of Superior Court 42 Mich. 239.
Without going into full details, it is perhaps enough for the present to say that respondent was charged with intentional and gross misconduct in omitting to do his duty under the execution and in colluding to further the procurement of ■an injunction from the United States Circuit Court against further proceedings. This injunction was relied on to relieve him from punishment. The Superior Court denied the •-application to punish the sheriff, and a oertiora/i'i is brought to review that action. It is claimed for respondent that no review can be had of this proceeding denying redress, because it would require this court to give what would be substantially an original judgment, which it has no power to render.
Several cases have come before us, which were cited on the •argument, in which we have reviewed and affirmed or reversed judgments against respondents whereby they have been subjected to liability to pay money or stand imprisoned. Upon such cases there is no room for doubt. Such judgments are as final as any other money or final judgments, and this court has power to review in some way all final judgments. But the question whether a refusal to give any relief is a final judgment, is different, and must depend somewhat ■on its effect on the rights of the relator.
The usual methods of obtaining redress for grievances are by actions for damages. There are some cases where a party has an election of remedies, and when the result of the remedy •chosen is decisive. In such cases there is no difficulty.
Under the present statutes it is expressly provided that in ■case an order is finally made adjudging payment of a certain sum by respondent, his payment of it shall preclude any other proceeding to recover for the wrong. Comp. L. § 7111. But we find nothing in the statutes which provides that these proceedings shall in themselves either stay or supersede any •other legal remedies which the relator may resort to; and until actual payment nothing seems to be suspended or barred. When the statute contains an express provision con■cerning the effect of such collateral proceedings it cannot very well be applied under a different state of facts.
.This being so, and the usual common-law remedy remaining open, it cannot be held that a mere failure to punish the •offender is conclusive or even prima facie evidence that he has not made himself liable for the results of misconduct. And it remains to be seen how this affects the present case.
This statute was borrowed from New York, and had been construed when we borrowed it. In the case of Spalding v. State of New York 7 Hill 301, it was fully examined and passed upon, and the decision of the State court wás affirmed by the Supreme court of the United States in 4 IIow. 21. Spalding had violated an injunction and disposed of property against the interest of a creditor, and was fined $3000 and costs. He subsequently was discharged in bankruptcy, whereby his debt was ’wiped out. On an application to imprison him for non-payment of this sum, which was ordered to be paid to the relator and not a fine in the usual sense, he set up his discharge in bar. His defense was overruled in all the courts, and it was held the fine was not discharged, although the original debt was admitted to be cut off. The New York court through Judge Nelson, who gave the opinion, held that this penalty was not to be treated as a debt in the'proper sense of the term, but as punitory, and the fact that it was made payable to the party injured did not make the proceeding a private suit for damages, or alter its character as a criminal prosecution. It was a public prosecution and not a private remedy, although the State had seen fit to direct punishment to take the form of private reparation. Under the English bankrupt laws such penalties were expressly barred, but the United States bankrupt law barred nothing but debts, and this was held to be something else, which was to be reached through the people as aggrieved by a criminal contempt.
This case seems very clear to the effect that although allowed to be conducted by a private prosecutor with a view to ultimate private benefit, the complaint is after all a summary criminal and not civil proceeding. Such cases are not unknown to the law. Indictments for forcible entry and detainer furnish a familiar instance of the use of criminal process for civil purposes. And so of informations for intrusion upon public office, or for corporation usurpations and misconduct in some cases.
The party complaining having lost no remedy of his own, and no appellate jurisdiction having been given to review such cases, it cannot exist unless it comes within some other legal analogies. We think it does not, and that if we were to .interfere it would be original and not appellate action. The mere fact that some certain amount of damages can be reached would not authorize us to take jurisdiction, when in most cases no such rule could be found. But as matter of fact such damages as are claimed here are in their nature unliquidated, and it is by no means certain what precise sum would cover the injury, and it is therefore uncertain what view the court below would have been justified in taking of it if any judgment had been rendered. While it may be that less than the sum now claimed would have been unjust, it is by no means certain that it would have been the exact amount arrived at as large enough under all the circumstances. There were also some disputed facts. There was a necessity of using judicial discretion in determining the ele-ments of recovery, and until it was so exercised, any .action on our part would be original action, to reach the proper result.
We think the effect of the action of the Superior Court was not final on the relator in regard to any right which he had to proceed for himself, and that we have no legal means of fixing punishment ourselves.
The certiorari must therefore be dismissed as improvidently issued. No costs are awarded.
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Campbell, J.
Complainant filed his bill to foreclose a mortgage dated June 13, 1876, and given by Henry Barber to secure notes for $2500 in the aggregate, made by Barber and George A. Boughton and William C. Drudge, payable with interest annually in two, three, four and five years, three notes being for $500 each and one for $1000. The bill does not describe them except as promissory notes payable to Peter K. Dederick but in fact they were payable to him or bearer. The bill avers an assignment in June, 1877, to complainant. It was filed September 14, 1877, for interest in arrears.
Barber answered and claimed a defect of parties. He also set up that when the mortgage was given the land was owned by Robert Barber, and that the mortgagee had knowledge of his title. The chief defense was that the notes were given for a transfer of the exclusive right to use a certain hay-press patent in Genesee county, and an agreement by the patentee to take up two outstanding licenses which he had previously granted, held by persons named Walker and Beahan, and that defendants have been greatly damaged by the failure to get rid of these rights.
As the notes all called for interest payable annually, the bill was not prematurely filed. But the question of who should be parties to such a bill is more important.
Although Barber is the only mortgagor in this case, nevertheless the only debt( or security purporting to be covered by the mortgage is the notes of the three makers before named. The bill asks for a personal decree against Barber for any deficiency. It sets out the notes as joint, and not joint and several. As a matter of law, being in the singular number, and declaring in each instance that “ I ” and not “we ” promise to pay, they are joint and several,- and if sued at law might be sued against Barber alone. But they could also be sued on jointly, and it is questionable whether, even at law, such an allegation as that in this bill, with no further explanation, would be consistent with a several liability.
But this is not important, because in this class of cases it is not true that equity follows the law; and although there are some instances where the legal analogies have been adhered to, such is not the universal rule. "Where an attempt is made to enforce an obligation which is joint and several, all the debtors who are liable as principals and not sureties, should, unless there are satisfactory reasons to the contrary, be brought in as defendants. It is held to be important that any judgment that is rendered should, so far as it goes, settle their rights, so as to need no further litigation to determine their respective obligations. "Where all -are principals each is bound to make up his share directly or by contribution, and each is interested in having every judgment accurate. In case Barber’s land should be applied to satisfy this mortgage, he has a very strong interest in having Boughton and Drudge bound by the litigation. And the authorities are direct on this point: Bland v. Winter 1 Sim. & St. 248; Cockburn v. Thompson 16 Ves. 321, and note in 2 Hovenden’s Supp. 444, on this case; also Madox v. Jackson 3 Atk. 406 ; Story’s Eq. Pl. § 169.
In the case before us the notes were given in payment for a patent-right interest purchased by the three makers jointly. The defense set up is one which belongs to all three, and which under the old rules of practice at law could only have been enforced by a cross action for damages. It would be very inconvenient to attempt any settlement of these damages in a controversy between a single purchaser and the assignee of a vendor. If he is not a bona fide purchaser, there is certainly an equity against his recovering the full amount of the notes, if there is any defense to them. It would be inequitable, if he should recover the full amount from Barber, that Barber should still be left to the uncertainties of a new litigation for contribution where the same result might not be reached. If a cross-bill or any other affirmative proceeding should be found necessary to enforce the defendant’s equities, Boughton and Drudge would beyond question be necessary parties, and no complete relief could be had without them. Barber could not sue alone either to rescind the purchase, or to get other redress. We cannot find any material question relating to the general merits of this case, that does not concern the parties jointly.
This objection was pointed out by the answer. If the testimony had shown that these persons were not necessary parties, the court might possibly have made a decree which would not prejudice them. But the testimony shows that the whole contest touches their joint interests, and in no way excuses the omission.
For these reasons we make no allusion to the merits. "We think that in dismissing the bill without prejudice the court below decided correctly, and the decree must be affirmed with costs.
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Marston, C. J.
Under the proviso in 2 Comp. L. § 7427 the costs in cases heard and determined on appeal in the circuit court are under the control of the court. Although our attention has been called to several other sections supposed to have some bearing upon this question, none of them repeal, change or "affect this proviso. See also § 5459. The discretion of the court in the premises we cannot review, and as the action of the court was authorized by law, the writ must be denied with costs.
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Cooley, J.
In the court of chancery a general demurrer to the bill of complaint in this cause was sustained and the bill dismissed. "Whether equities are shown by- the bill is therefore the only question here.
The complainants are partners in business at Cleveland, Ohio, under the firm name of Glidden & Eells. The bill alleges that during the year 1877 they made large advances to the Spur "Mountain Iron Mining Company, a corporation doing business in the county of Baraga, and said company was on the 19th day of December, 1877, indebted to complainanants in
“ the sum of $24,000, as near as may be; that for the purpose of further securing said indebtedness to your orators said Spur Mountain Iron Mining Company, through its general manager Freeman Norvell, gave a bill of sale or lien upon fifteen hundred tons of iron ore of standard quality, meaning by that number one ore — -the product of the mine of said Spur Mountain Iron Mining Company; said ore being in stock pile at said mine in Baraga county, Michigan ; and upon said 19th day of December said Spur Mountain Iron Mining Company gave to your orators an instrument in writing, as evidence of their lien upon said ore,” “ said writing being as follows:
‘Detroit, Micii., Dec. 19th, 1877.
‘This certifies that we now hold instock pile at Spur Mine, Lake Superior, Mich., subject to the order of Glidden & Eells fifteen hundred gross tons of iron ore of standard quality, the product of the mine of this company known as the Spur Mine. Delivery to be made on the order of Glidden & Eells indorsed hereon, and the return of this receipt.
‘F. Norvell, General Manager.’
“ That together with said certificate of lien above was received a letter from the said Freeman Norvell,” “ as follows:
‘ Spur Mountain Iron Mining Company,
General Manager’s Oeeice,
92 Griswold Street, Detroit, December 20, 1877.
Glidden <& Eells, Cleveland, Ohio.
Gents : Inclosed find certificate of fifteen hundred tons of ore in stock pile at the mine sent by you for me to sign to add to the security you bold for advances made to us this season. Said ore to be subject to your order to the extent of your lien. Very truly yours,
F. Norvell, General Manager.’
“ That said Spur Mountain Iron Company became insolvent, and upon the twenty-first day of February, 1878, made a general assignment to Freeman Norvell for the benefit of «•editors.
“ That soon after the making of said assignment said Freeman Norvell, acting as assignee under said assignment, took possession of all the property of said Mining Company at the mine in said Baraga county, together with the ore held by your orators as above stated, and continued to hold the same undisturbed until on or about the 12th day of May, 1879, when as your orators are informed and believe, said Freeman Norvell, who resides at Detroit, Michigan, directed James Wilson, who was left in charge of all of said property at said mine as the agent of said Freeman N orvell, assignee, to mix the standard number one ore, which had so been turned over to your orator as security, with number two ore, and to ship the said ore so mixed as inferior quality, and for the purpose of defrauding your orators and depriving them of their security.”
The bill further alleges that said Wilson has proceeded to execute such directions of said Norvell; that the whole amount of the ore so turned out to complainants except about six hundred tons, has been already shipped from the mine; that a large amount of it is now in the hands of' the Marquette, Houghton &• Ontonagon Railroad Company; that if the same is delivered to said Norvell by said railroad company complainants will be defrauded of their security as they believe and that said Spur Mountain Iron Mining Company is bankrupt, and will pay little or nothing to its creditors as complainants believe.
The bill prays that Norvell be enjoined from mixing any more of the ores with others of an inferior quality, and from shipping any of the same without complainants’ assent, and from removing any of them from the possession of the railroad company; that an account may be taken of the amount due to complainants, and the ores sold to satisfy the same, etc.
As all that is material in the bill is above, given, it will readily be perceived that it is, as a pleading, exceedingly imperfect, indefinite and uncertain ; and it is not siirprising that it was made the subject of a demurrer. It gives no account of the indebtedness of the mining company to complainants except as it states the amount, how it is evidenced, the time or times when it came due or will come due. It assumes that other securities exist, but it does not state what they are, or their amount, or value, and it does not even allege that anything is now owing to them, except indirectly as it asserts the danger of their being defrauded. No doubt a special demurrer pointing out these and some other defects must have been sustained; but the question now is whether a general demurrer will reach them. A general demurrer challenges the equity of the case made by the bill, and must be overruled if a case for equitable relief is set out, however imperfectly: Clark v. Davis Har. Ch. 227; Hoffmam, v. Ross 25 Mich. 175.
The specific objections pointed out on the hearing are:
1. That the bill does not show an indebtedness to any specified amount, at the time the bill is filed, and therefore does not show equitable jurisdiction ; it does not show that previous securities have failed to satisfy the debt, or that the pretended security set out in the bill is still unsettled or in existence. v So far as the bill is uncertain in these particulars it is susceptible of amendment. No doubt the bill should have shown an interest to an amount sufficient to give the court jurisdiction; but on general demurrer we will not assume that a debt to secure which the debtor turned out fifteen hundred tons of number one iron ore, was not over one hundred dollars.
2. That Norvell’s authority to turn out the ore to complainants does not appear; that the instrument turning it out does not purport to give a lien; that as a chattel mortgage it would be void for uncertainty in description, and for want of filing or of a change of possession of the property. But the allegation that the companj' by Norvell its general agent, executed the paper is a sufficient allegation of his authority (Regents of University v. Detroit Young Men's Society 12 Mich. 138); and the paper-writing does not purport to be a chattel mortgage, but a setting aside of certain property for complainants, to be subject to their order. The fact that it was thus set aside as security appears by the contemporaneous letter. When any one questions its good faith, it will be time to inquire into it. There is no defect in the description of property, and nothing on the face of the papers indicates that there would be or could be difficulty in identification.
3. That complainants have an adequate remedy at law. There is no merit -in this objection. A court of law coidd not enjoin the mixing of ores, or the transportation of the property beyond its jurisdiction. Even if all the parties were responsible, complaiuants could not be required to stand helplessly by while the property turned out to them is carried off, and trust to the chances of receiving its value.
4. That the bill is not verified. In fact it appears to have been sworn to in another State, and the official character of the person administering the oath is not shown. But a verification is only important for the purposes of a motion for an injunction, and any defect in the showing on oath may be remedied when that motion is made.
The decree dismissing the bill must be reversed and the cause remanded for further proceedings.
The other Justices concurred. | [
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Graves J.
The plaintiff brought replevin before a justice of the peace for a mare and two cows, and recovered, but on appeal the circuit court gave judgment for the defendant. The plaintiff brought error.
June 7, 1875, tbe plaintiff owned a place of eighty acres in Hillsdale county, and the personal property in question. Her husband, who was then living, but died soon after, joined with her in an agreement with the defendant by which the farm was to be conveyed to him and he was to maintain them during their lives. They went before an attorney in Hillsdale to have the proper papers drawn and executed to carry out the agreement, and they explained to him the terms settled on. Adams was to secure the agreed support and maintenance by his bond and a mortgage on the farm received from the plaintiff. The deed and bond and mortgage were accordingly prepared and executed. The condition of the bond contained the following preamble: “Whereas the said Jane Dean and the said Robert Dean have this day conveyed to the said George W. Adams that, lot of land knortu as the east half of the north-east quarter of section number seventeen (17) in said township of Jefferson, in consideration of the support and maintenance of the said Jane and the said Robert by the said George,” now the condition, etc.
• On the trial the defendant was allowed, against objection, to show by the attorney and others that the animals in question were conveyed by the plaintiff to the defendant at the time of the deed and bond and mortgage and as part of the same transaction, and that their value formed a part of the consideration for the undertaking to support the plaintiff and her husband; that when the attorney came to read,the papers as prepared, it was discovered that no mention had been made of the mare and cows, and that he then informed the parties that no writing for their transfer was necessary, and that an actual delivery would answer every purpose.
The only question which is presented arises on the reception of this oral evidence. It is objected that in permitting it the court allowed to be introduced the oral statements made by the parties at the same time they entered into writings, and authorized the proof of an item of consideration not recognized by the papers and not in harmony with the recital in the bond.
We think there was no infringement of the rules of evidence. No writing was necessary for the disposal of the animals. It was for Mrs. Dean to transfer them to Adams, and in case of any writing for the purpose it must have proceeded from her. But none was made. The bond and mortgage belonged to the other side of the transaction, and their office was to describe and secure performance of the undertakings on the part of Adams. It "was not essential that they should detail tire whole particulars of the consideration. The recital that the consideration on which the plaintiff and her husband gave the deed was their support and maintenance was true. There is no statement that they gave nothing more than the farm. Neither is there any statement that the farm was the sole consideration for the support and maintenance. The recital assumed to state on what consideration the deed was- founded, and was not intended to imply that nothing more was founded on the same consideration, or that Adams had no other consideration than the farm for his undertaking. Hence, there was no inconsistency between the papers and $be oral evidence. The inquiry was directed to show the actual ingredients of the consideration of the bond and mortgage, and there was nothing in the papers to exclude it. 'The case appears to fall under previous decisions. Doty v. Martin 32 Mich. 462 ; Trevidick v. Mumford 31 Mich. 467 ; Bowker v. Johnson 17 Mich. 42; Strohauer v. Voltz 42 Mich. 444.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
Tbe bill in this case is filed for a divorce because of alleged adultery. The parties were married in 1866, and the adultery is alleged to have taken place in May, 1879. There is no direct evidence of the alleged offense, but circumstances of a suspicious nature are sworn to by two children of the parties, the eldest of whom was twelve years of age when sworn, and both of whom would seem, if their evidence is trusted, to have precocious understanding of the nature and criminality of the conduct charged. We had occasion in Kneale v. Kneale 28 Mich. 344, to comment upon the manifest impropriety of calling children of such a tender age to testify against their mother to establish an offense against chastity. It is a great wrong to them, not only as it touches them in their natural affections, but also as it tends ' to destroy their purity of mind and conduct. Moreover, the , evidence of such children to acts which will naturally be construed by their prepossessions and immature and incorrect notions is of very slight value, even when honestly called out and given, and is easily shaped and perverted if a dishonest father shall be so inclined. We shall not grant a divorce upon such evidence unsupported, and there is not much other evidence in this case.
The decree must be reversed and the bill dismissed.
The other Justices concurred. | [
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Campbell, J.
Chapman sued Rose for board of Rose’s-step-mother, under an agreement to pay what it was reasonably worth. The old lady was about seventy years old, and Rose endeavored to show that her services were such as to reduce the value of board. Only one exception was taken on the trial.
Mrs. Chapman having been sworn for plaintiff below, this question was put on cross-examination, but ruled out because-offered expressly for a single purpose that was not lawful r “ State whether you had the charge and management of the-household matters in your family, and the direction of the work.” Defendant’s counsel, in putting this question, said that his object was, if receiving an affirmative answer, to show admissions of Mrs. Chapman as to the work of the step-mother while living with plaintiff.
No objection was raised against showing what work the old lady did perform, and it is not likely any would have been-made to the question itself if not put for the special purpose named. We do not see any error in the ruling. The question was not put with any view to an impeachment, and was unnecessary for any such purpose. Mrs. Chapman was examined as to the whole facts, and if it appeared she made any statement on the stand contrary to admissions made elsewhere, then, on a proper statement of time and place, she could have been inquired of concerning them. But the purpose here was to use her admissions against her husband as binding him, although not confined to acts of agency. There ■ is no foundation for any such proposition, unless in some eases where the admissions are res gestee, and admissible as acts, and not as relations of facts. The offer was vague, and pointed to nothing tangible.
There is no error in the record, and the judgment must be affirmed with costs.
The other Justices concurred- | [
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Marston, C. J.
Complainants, claiming to be judgment creditors of defendant Hall, filed their bill in this case in aid of an execution levied upon a certain piece of land which they claimed had been fraudulently conveyed to defendant Carr. The evidence relied, upon by complainants, if standing alone, would not entitle them to the relief sought, as it fails to show Carr a fraudulent purchaser; besides it is in the most imjxortant portions contradicted by that of the defendants. While we do not consider it at all necessary to discuss questions of fact, we may briefly refer to one or two leading points in this ease.
It appears beyond dispute that Hall had for some time prior to the sale been endeavoring to sell this property and had placed it in the hands of a real estate agent for such pur-, pose, and of this no secret was .made. It farther appears that Carr some months prior to the purchase had moved with his family into the vicinity of the farm and was seeking such a place for purchase; that he had been negotiating with Hall and his agent for some weeks for the purchase of this land, and on the 10th day of January, 1878, a bargain was made. The price agx’eed upon was $2200, and no one qxxestions the fairness of this; the amount of a mortgage thereon, $1200, with interest and taxes, was to be deducted and assumed by the grantee, and the balance paid in cash. A deed was made out, executed and placed in the hands of an attorney; ten dol-' lars cash was paid, the title was to be examined the next day and if found satisfactory the deed was then to be delivered and the full cash consideration to be paid. On the 11th the title was examined and the parties then agreed to meet at the attorney’s office the following morning at ten o’clock to pay over the money and receive the deed.
The attorneys for complainants on the evening of January 11th ascertained that a sale, as, above set forth, had been made and that the consideration was to be paid the next morning, and then made arrangements to sue Hall and garnishee Carr. On the next morning while- such judicial proceedings were being commenced, an officer was sent to notify Carr that they desired to garnishee him ; and complainants claim, but this Carr denies, that Carr agreed to meet the officer at a certain time and place to give an opportunity for service of the garnishee papers, but that, instead of so doing, he went to a different place, met Hall and paid him, and then represented to the officer that' he had received his deed when in fact he had not. This last fact Carr does not dispute. That the money was paid over and the deed delivered on that forenoon is not questioned. The garnishee proceedings were then abandoned, and attachment against Hall sued out and a levy made upon this land. This bill is filed in aid of the execution levy-upon the judgment recovered in the cause so commenced by attachment.
It is worthy of notice that the first intimation Carr had that any person had a claim against Hall was on January 12th. This was after he had made an arrangement to purchase this place, had made a small payment thereon, and was then ready to pay the balance in the course of an hour or two and receive his deed.
That Carr up to this time had been acting with entire good faith no one doubts, and, under such circumstances, how faille could be considered under any legal or moral obligation to assist Hall’s creditors in the collection of their debts, by giving him an opportunity to put him to the trouble and expense of a garnishee suit, we are unable to see. If a person intending in good faith to purchase land can be thus prevented from closing up the transaction according to his agreement, or subjected to litigation or to have his title questioned thereafter, serious results and embarrassments would follow. If under such a state of circumstances Carr owed a duty to any one, it was to carry out and conclude his agreement with Hall by paying the balance of the consideration and receiving his deed, and not by collusion or agreement with Hall’s creditors assist them in collecting their debt.
But there is no evidence tending to show that Carr at any time had any knowledge whatever of Hall’s pecuniary responsibility, while there is direct evidence that he had no such knowledge. Carr could not and would have no right to assume that Hall was making this sale- to hinder, delay or defraud his creditors in the collection of their debts, or that he had not abundant means to pay all his debts, or that he did not design out of the consideration received for this land to pay the debt in question.
While the evidence tends to show that Hall did not own other real estate, it does not clearly appear that he did not own personal property, but without reference to this it is clear that Carr had no such knowledge.
We need not pursue farther this matter. The decree <iismissing the bill must be affirmed with costs.
The other Justices, concurred. | [
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Campbell, J.
This case comes up a second time from the circuit court for the county0 of Ottawa into which it had been taken on appeal from the decision of the commissioners. The case is reported in 40 Mich. 646. The claim was brought by a son against his father’s estate for various unpaid claims •and services, the father having by will made no provision 'for them.
Upon the former' trial we examined all of the important questions raised, and we do not see that in the present record there is any great difference on what is really involved. The judge on the trial confined the jury to the consideration of the various matters making up the amount due for a dwelling-house built in 1871 and 1872, chiefly at Henry Nibbelink’s expense.
Upon this we think theré was abundant evidence to go to the jury, and that the instructions given were correct. We are not prepared to say as a matter of law that because a son lives at home with his family or single, in his father’s house, such an outlay as the building of a house involves stands on the same footing with mere labor done in the domestic service as presumably a voluntary contribution to the comfort and support of the household. Of course it is possible for it to be so intended and the intent may in either case be shown by circumstances. But we think that the executor could ask , no stronger charge than that \yhieh the court gave. We think that where the expenditure was made at the request and with the knowledge and assent of the father he would be liable unless there was evidence tending to show a different understanding. The charge must not be considered as an abstraction, and it had already appeared in the case beyond doubt that even the ordinary labor done by the son was considered as entitling him to some return, and a receipt appears which the son gave the father on leaving his house in which certain property was accepted in full compensation for his past labor. The jury had all the facts before them, and they were not prevented from weighing all the probabilities, and inferring from them anything that would militate against the claimant.
We need not dwell on tbe details of tbe case, because, as before hinted, we-cannot see that his claim winch was recovered on does not stand substantially where it did before. The court below considered the, rulings as required by our former decision. We think there is no such variance as to change the legal shape of the controversy.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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M. V. Montgomery for the motion. | [
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Graves, J.
This case comes up on exceptions before judgment. Without conceding that the points suggested by the defense are legitimately raised, they will be disposed of briefly.
The prisoner was charged by information in the Hecorder’s Court of the city of Detroit with having in the night-time broken and entered a store in that city, not adjoining to or occupied with a dwelling-house, with intent to steal goods and chattels therein, and with having then and ¿there feloniously stolen, taken and carried away, the same of the value of $7.50.
He pleaded not guilty and being put on his trial before a jury, the recorder, when the testimony was concluded, among other things charged that the evidence was not sufficient to convict of the breaking and entering, and that it was for the jury to find whether the prisoner was or was not guilty of the larceny. The jury proceeded to deliberate upon the case, and were “ unable to agree ” and were discharged.
His counsel 'then moved in effect that he be no further prosecuted: first, because he had once been in jeopardy for the breaking and entering; second, because the court has no original jurisdiction over the offense of “ petit larceny ”; and third, because the police court of the city has exclusive jurisdiction. The court overruled the motion, and sometime after the prisoner was put on trial before another jury. The same objections were then made and again overruled.
There is no claim, and the record affords no ground for saying, that the recorder did not act with due discretion in discharging the jury without a verdict. The statement is express that they were “ unable ” to agree, and if that was true it became the judge’s duty to discharge them, and the prisoner was not thereby relieved from further prosecution. The doctrine is too well settled to justify discussion.
The instruction given to the first jury that the evidence was insufficient to convict of the breaking and entering, if entirely correct, was not equivalent to an acquittal of that part of the charge. The legal accusation remained just the same, and no part was eliminated for the purpose of another trial. The charge was matter of advice to the jury 'on the evidence, and it ceased to have, influence after the final disagreement. • • '
The jury on the second trial found the prisoner, guilty of the larceny charged and nothing more. The accusation was sufficient to give the recorder’s court jurisdiction, and it could not be lost by a verdict for. a minor but included crime. It is not to be imagined that a court is to go through a trial on the merits of an accusation down to a verdict to find out from the latter whether it had -jurisdiction to try at all.
The exceptions are overruled and the court below is advised to proceed to judgment.
The other Justices concurred. | [
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Graves, J.
This case being tried on appeal the jury-awarded Cooper $10.35 and Holbrook brought error to this court. The main questions arise on the declaration. Hol brook pleaded the general issue and abstained from objecting until Cooper came to offer evidence before the jury. lie . then claimed that no evidence was admissible — 1st, on the ground that the declaration was for malicious prosecution — ■ an action the justice' could not entertain; and 2d, because the declaration was not for malicious prosecution and did not set forth any cause of action whatever.
As we are bound to intend the plaintiff wished to state his case in legal conformity with the facts appertaining to it, we cannot avoid looking at the declaration as an astonishing performance. It would be difficult to find a more striking instance of contempt for the formal proprieties of pleading. And certainly no such experiment is to be commended. It is very clear that malicious prosecution is not alleged. The final constituents of such a charge are wanting. And there is nothing well enough stated to have stood against a demurrer. It was alike a dictate of prudence and good practice to amend when the question was raised if not before, instead of leaving a point not destitute of plausibility at least, to invite a writ of error. But we are bouncbto overlook awkwardness and faults of form and extend the extreme indulgence accorded to pleadings before a justice of the peace; and particularly where instead of being raised seasonably the objection is held back until the production of evidence at the trial. How large that indulgence is will appear from the cases. Hurtford v. Holmes 3 Mich. 460; Daniels v. Clegg 28 Mich. 32; Smith v. Hobart 43 Mich. 465; Chancey v. Skeels 43 Mich. 347; Wilcox v. T. & A. A. R. R. Co. 43 Mich. 584; Snyder v. Winsor ante p. 140; Van, Middlesworth v. Van Middlesworth 32 Mich. 183; Clark v. Field 42 Mich. 342; Cook v. Perry 43 Mich. 623.
After scanning the declaration we think it contains the rudiments and essence of a legal demand of a legal right. Disregarding the question of form and the infelicity of legal expression, the language appears to comprehend the declaration of an actionable grievance. It seems in effect to assert that the defendant caused certain money to be extorted from the plaintiff under duress of imprisonment on a criminal process, which process and imprisonment the defendant procured for that end, and that the plaintiff sued to get that money back as damages. And admitting this to be a correct construction, there was a lawful ground of action. Seiber v. Price 26 Mich. 518 ; Hackett v. King 6 Allen 58; Osborn v. Robbins 36 N. Y. 365; Bush v. Brown 49 Ind. 573; Strong v. Grannis 26 Barb. 122; Brownell v. Talcott 47 V 243; Chandler v. Johnson 39 Ga. 85 ; Clark v. Pease 41 N. H. 418; Williams v. Brown 3 B. & P. 69; Cooley on Torts 506.
In ease of a crime committed neither the person specially injured nor another has a right to convert it into a sopree of benefit or profit to himself, and if he proceeds to do so and in the course of the transaction permits a portion of the fruits to go directly into other hands without touching his own, this will not excuse him from being answerable therefor. His wrong and its detriment to the person wronged are not diminished by a division with others of the fruits expected and realized from his misdoing.
It appears from the record that there was enough of pertinent evidence before the jury for their consideration, and that the instructions were sufficiently favorable to the plaintiff in error, and we do not agree with counsel that the special and general findings are prima facie incapable of standing together.
The striking out of Holbrook’s testimony touching his talk with Bailey about Cooper’s effort to 'get trusted was only prejudicial to Cooper if to either.
. On tlie whole we think the judgment should be affirmed with costs.
The other Justices concurred.
The declaration was as follows:
George W. Cooper v. Jared L. Holbrook.
Clinton county, ss. In justice court, before Henry P. Adams, Esq., a justice of the peace.
The said plaintiff, by R. Strickland, his attorney, complains of the said defendant, for that the said defendant did fraudulently and without any just or legal cause on, to wit: the 4th day of June, A. D. 1879, make complaint before Henry P. Adams, a justice of the peace for said county, in which said complaint he charged this plaintiff with the crime of larceny, upon which said complaint the said justice of the peace issued a warrant for the arrest of this plaintiff fraudulently and for the purpose of compelling this plaintiff to pay a debt which said defendant claimed that this plaintiff was owing to the said defendant and one John W. Bailey, and the said plaintiff avers that by virtue of said warrant he was arrested, and that while he was so in custody he secured the said alleged debt and paid costs in the criminal case in a large sum, to wit: ten dollars, and that thereupon he was discharged from said arrest without being taken before the said Henry P. Adams; and he avers that the said money was taken from him illegally and fraudulently, for the reasons before given and for the further reason that the said complainant, the said defendant, had no right to settle or compromise in any manner the said alleged crime of larceny, without the said party, the plaintiff, having-been taken before said justice; and the said plaintiff avers that by and through said fraudulent and illegal proceedings, and the payment of said money so made he has been damaged in a large sum, to wit: in the sum of fifty dollars, and therefore he has brought this suit.
R. Strickland,
Plaintiff’s Attorney. | [
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Marston, C. J.
The errors alleged in this case are upon the refusal of the court to take the case from the jury, because there was no evidence of a taking or conversion of the logs, and second, that there was no proof of copartnership of defendants.
We are of opinion that there was evidence tending to establish both propositions, and that within the ruling of Conely v. McDonald 40 Mich. 152 the court properly submitted the case to the jury.
A discussion of the evidence would be of no general importance and will not therefore be attempted.
The judgment must be affirmed.with costs.
The other Justices concurred. | [
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Marston, C. J.
The receipt given by the justice in this case shows that he had received “ ten dollars as fees and costs on appeal of case,” etc. The claim afterwards set up by him that the costs were taxed at ten dollars, and that, while the costs were paid him, the one dollar for making his return had not been, would be in direct conflict with his receipt. He may have a claim against the appellant for the amount unpaid, but it was his duty to make due return to the appeal. The party had a right to rely upon the receipt given, and he should not be deprived of his right to an appeal because of a misunderstanding with the justice.
The writ must issue.
The other Justices concurred. | [
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Bird, C. J.
The plaintiffs recovered a judgment against the' defendant on account of hay sold by the plaintiffs to the Escanaba Transportation Company. The defendant was director and president of the company, and his liability arose under the statute for his neglect and failure to join in the making of the annual report of the company for the year 1905. After the plaintiffs rested their case, the court directed a verdict for the plaintiffs, and the defendant has removed the case to this court for review, claiming the evidence was insufficient upon which to base the judgment. To prove their case the plaintiffs introduced in evidence the certificate of the secretary of State that the Escanaba Transportation Company did not file a report of its affairs for the year 1905, and they produced the secretary of the Escanaba Transportation Company, who testified that he signed no report of the company for that year. The books were not available at the time of the trial, and parol proof was made that the defendant was a director of the company during the defaulting period. Defendant contends that this testimony did not make out a prima facie case of liability, because the defendant might have joined in the making of the report and the report never have been filed; that the duty of the filing of the report is not upon the defendant director, but upon the corporation; and that the statute is penal in its nature and must be strictly construed.
The statute involved is Act No,. 232, § 12, of the Public Acts of 1903, as amended by Act No. 194 of the Public Acts of 1905. The material portion of this section reads as follows:
“If any corporation neglect or refuse to make and file the reports required by this section, within the time herein specified, and shall continue in default for ten days after the 1st day of February, its corporate powers shall be suspended thereafter until it shall file such report, and it shall not maintain an action in any court of this State upon any contract entered into during the time of such default. And any director of such corporation so in default, who has neglected or refused to join in the making of such report, shall be liable for all the debts of such corporation, contracted since the filing of the last report of such corporation, and shall also be liable to such corporation for any damages sustained by it, by reason of such refusal or neglect.”
By referring to section 12 of Act No. 282, it will be observed that it was there made the duty of the directors to file the report in question. The amendment of 1905 changed this, and placed that duty upon the corporation. If the only evidence offered of defendant’s default had been the certificate of the secretary of State that no report for that year had been filed, there would be much force to defendant’s contention, because the defendant might have joined in the making of the report, and the failure to file it might have been the fault or neglect of the corporation. The testimony of the secretary of the company, however, made it reasonably clear that it was not the default of the corporation’s failure to file, but was due to the neglect and failure of the directors to join in the making. The law requires the report to be verified by the secretary of the company, but this he could not well do until after it was made, and the fact that he did not verify it, together with the further fact that none was filed, where the law requires it to be filed, we think raised a prima facie case as to defendant’s default. Hall v. Kellogg, 16 Mich. 135.
Defendant also complains that there was no competent testimony offered that defendant was a director of the company. The court permitted this fact to be shown by parol evidence, and the . foundation laid for its admission was undoubtedly sufficient.
It is also said by defendant that no proof was offered to show that the Escanaba Transportation Company was a corporation coming within this act, and that, if there were evidence of this fact, there was nothing to show whether it was a Michigan or Wisconsin corporation. We do not find any direct proof in the record that this was a Michigan corporation, subject to the provisions of Act No. 232, but the case was tried throughout by both counsel on this theory, presumably because the status of defendant as a Michigan corporation subject to Act No. 232 was fixed by this court in Deloria v. Atkins, 158 Mich. 232 (122 N. W. 559). The declaration alleged that the company was organized under the laws of Michigan, and further alleged that it was the duty of defendant, as director and president of the company, under section 12 of Act No. 232 of the Public Acts of 1903, as amended, to join in making a report of its affairs for the year 1905. Defendant’s counsel, upon cross-examination of plaintiff’s witness, developed the number and names of the stockholders, and the number of shares each owned, and the number and names of the directors. At the close of the case, defendant’s counsel stated to the court, in his application for a directed verdict, “that he principally relied upon the fact that there was no evidence of the statutory negligence of the directors.” After trying the case upon the theory that it was a Michigan corporation, subject to the provisions of Act No. 232, and developing upon cross-examination who the stockholders and the directors were, and making no point in the trial court of plaintiffs’ failure in this regard, we think the defendant is in no position to raise this question on appeal. Hamilton v. Ames, 74 Mich. 298 (41 N. W. 930).
The judgment of the trial court is affirmed.
Ostrander, Hooker, Blair, and Stone, JJ., concurred. | [
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Hooker, J.
On January 21, 1910, complainant was granted a decree of divorce with alimony, $4,000 in amount. The decree provided that this sum should be a lien upon certain land held by William H. Bennett as trus tee for defendant Clarence Gilkey, said Bennett as trustee having been made a party defendant by leave of court. An appeal was taken by Bennett. The question in the case is whether the court should have made the decree for alimony a lien upon the property in the hands of the trustee.
The history of the trust is as follows: On November 14, 1906, Edgar W. Gilkey, a man in failing health and the owner of considerable property, his wife joining, made a deed of his property to George L. Gilkey, a relative, in trust for the following purposes:
(1) To pay the debts and adjust his grantor’s business affairs.
(2) To pay out of the profits, proceeds, and rents of said property to Edgar W. Gilkey or his family during his lifetime such sums as the trustee should deem reasonable and necessary for the proper care and support of himself and family, including his wife, son Clarence and daughter Grace, and to reinvest the remainder.
(3) After Edgar W. Gilkey’s death, to pay his widow, Anna, should she survive him, such sums as the trustee should deem necessary for her maintenance and support, and to do the same in relation to the son and daughter, Clarence and Grace.
(4) The trustee or his successor or successors was authorized to distribute the property, as directed in the will, whenever he should deem it advisable.
(5) The trust should terminate within 20 years.
The trust was accepted, and has so far been carried out, in a way. The evidence in this proceeding shows that the trustee has in effect made distribution of a portion of the trust fund to the extent of satisfying the widow and daughter of Edgar Gilkey, with the sanction of the chancery court, on a petition filed by him. He did this with the consent of Clarence Gilkey, the only other cestui que trust, and his wife, the complainant. He made no distribution as to him, but, on the contrary, every step in the proceeding from the petition to the decree shows that there was no intention to turn over to Clarence Gilkey the title to said trust property, but, on the contrary, all ex pressly provided that the property remaining shall continue in trust under the terms of Edgar’s deed. We need not concern ourselves with questions regarding the action of the court in the premises further than to say that the effect was not to create a new and different trust from that created by Edgar’s deeds, so far as the property conveyed by said deed is concerned. Until the trustee shall convey (i. e., distribute) to Clarence Gilkey said property, it is not subject to seizure by the court to pay alimony allowed to the wife, for that is not within the uses to which the trustee was authorized to apply it. We cannot, therefore, sustain the decree in respect to the provision creating a lien.
There is evidence in the case that indicates that certain money received from another source by Bennett as guardian ad litem for his ward Glarence Gilkey has been used in removingincumbrancesfrom the land received by him from Edgar Gilkey in trust. This is not sufficiently definite to enable us to determine the amount, and possibly it may be that the fact was not established. But such a claim is made. If such moneys have been so used, we think the proceeds of it cannot be held as a trust fund against creditors, for one cannot cut off his creditors by deeding all of his property to one in trust for his own uses, to the exclusion of creditors. See Hackley v. Littell, 150 Mich. 106 (113 N. W. 787), and cases cited. To the extent, therefore, that such fund has been applied to the payment of ¡mortgages on trust property deeded by Edgar Gilkey and still in the name and hands of the trustee, such a lien might have been decreed, and presently enforced by proper proceedings. The decree will be reversed, and one entered in this court in accordance with this opinion and remanding the cause with leave to take further proof, with a view to determining the facts, and the making of such decree as they shall warrant, as indicated herein.
Bird, O. J., and Ostrander, Blair, and Stone, JJ., concurred. | [
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Stone, J.
This is an action of assumpsit to recover a commission claimed to be due the plaintiff upon a sale of real estate alleged to have been brought about by him for the defendant. The case was submitted to the jury, and the defendant had a verdict. The plaintiff brings error. The assignments of error are based upon the exclusion of testimony, the refusal to give plaintiff’s requests to charge, and upon the charge as given; but the meritorious question is whether the plaintiff was the procuring cause of the sale to one Mrs. Moore, the purchaser.
The plaintiff, a real estate broker, testified that, learning that Mrs. Moore wanted a house, he went to defendant the latter part of May, 1907, to find out if his house was for sale, and if he (plaintiff) could have the refusal of it, and told defendant that he had a customer for the property, and gave the name of Mrs. Moore; that defendant gave plaintiff the refusal of it; that defendant asked what his commission was, and plaintiff replied 3 per cent; that defendant said others had offered to do it for 2 per cent., and that he would not pay 3; that plaintiff made an appointment with Mrs. Moore to see the house the next day; that the next morning plaintiff went to defendant’s house and told him that Mrs. Moore wanted to see the house that afternoon, and that defendant said: “I want you to put her off two or three days; tell her the family is away from home, and that she cannot see it; it will look better after it is decorated;” that plaintiff saw Mrs. Moore, and told her it would be impossible for her to see the property for a day or two; that he said to her: “Mr. Smith will call me up and let me know when „u can see the property;” that plaintiff waited two or three days and then called up defendant, who said that Mrs. Moore had made an appointment to see him that afternoon; that plaintiff called up Mrs. Moore, who said she was going up there that afternoon; that plaintiff saw her again that night or the next morning, and she said: “I will give Mr. Smith $13,000 for that place;” that plaintiff said, “That is cheap for it,” and she said, “You can go ahead. I will take it at that; he is hard up, I suppose, and he needs the money. You can get the place for me, he wants to sell it bad;” that plaintiff submitted the $13,000 offer to defendant, and he said, “No, I cannot take it, but you go ahead, and if you are any good you can work her up to the price and sell it to her;” that defendant gave it to him at $17,000; that after this interview plaintiff was calling up or seeing Mrs. Moore'or defendant often; that Mrs. Moore went to look at the house about June 3d; and that from that time on plaintiff was talking with her and defendant as late as August 2d; at that time he called up Mrs. Moore and asked her if she had found anything yet, and she said “No;” that he then called up defendant, and he said she had bought; that a few days after August 10th plaintiff met Mrs. Moore, and she told him she had closed the deal — had bought the Smith property. Then he called up defendant and asked for his commission.
When defendant said the house was for sale at $17,000, he put no restrictions on the selling price or sale, he simply gave the place to plaintiff to sell it; plaintiff had no contract in writing, nor power of attorney; that defendant did not reserve the right to sell the place himself at a less price than $17,000, and made no reservation; that defendant swore in justice’s court that he sold the place for $14,500; that defendant did not tell plaintiff that the place was in the hands of other real estate men; he said others had offered to do it for 2 per cent. Mrs. Moore never offered plaintiff more than $13,000 for the place. Defendant never authorized plaintiff to sell for less than $17,000; that plaintiff had been at Mrs. Moore’s house on other deals. Plaintiff did not take Mrs. Moore to defendant except in name. She was considering other houses all of the time. All plaintiff did was to do telephoning and go and see them. He claimed that he got the two parties together, and that they closed the deal when he was working and talking between them; that defendant testified in justice’s court that plaintiff was the only one that ever mentioned Mrs. Moore to him; that the property was not at any time withdrawn from his list.
On behalf of defendant, Mrs. Moore testified that plaintiff never came to her house; that the first time she ever heard from plaintiff concerning the sale of defendant’s house was over the phone; he asked her if she had seen the house, and she replied she had; that she first heard of defendant’s house being for sale through Mr. and Mrs. Candler; Mr. Hunter asked her if she had seen it; plaintiff never called at her house personally to sell her the defendant’s house; that the only time he was there he never mentioned it; that she never offered him a cent for this house, because she was negotiating with Mr. Hannan for a house on Perry avenue; she had offered $13,000 for that house, but could not get it for that, and she agreed to pay $15,000, and close the deal; that was the Hayes house, and she thought she had bought it. After she thought she had closed that deal, she never carried on any negotiations with defendant for his house. In her negotiations with defendant she did not remember who took the initia tive. It was some time in the latter part of July that she decided to go and see the house again. When she first saw the house defendant did not show her the whole house, and she went to the house' again. Before plaintiff said anything to her about the Smith house she had seen it, but not all of it, so she went up and had defendant show her the whole house.
Some time in July she wrote defendant and asked him if his house was still for sale, and if so to come and see her. He came down and she offered him this amount for it. He wanted $17,000, and she was not willing to pay that much. The first time she went there she thought he asked her $17,500. She let him know that she had no idea of purchasing for that. In the deal in July with defendant, she never mentioned plaintiff in the transaction. She had no reason to. She would not have purchased the property through plaintiff. She did not want it then. She decided later that she would take it. The plaintiff never took her to see the property; he never went over to see defendant at all. He did telephone her about the Hayes house; he wanted to try and sell that. She told him that he could not sell it; that he had no right to do it; that he could not get a commission; that Mr. Hannan and she were negotiating about that, and he said that he would look out for the commission; that she need not worry about that. She did not remember anything of the kind; that he was telephoning her, only about — he never told her about the Smith house, but he telephoned her about the Hayes house. She could not tell when she first learned that the deal on the Hayes house had fallen through. Mr. Smith and she came to an agreement with regard to this place the latter part of July; he wanted $17,000. She first offered him $14,500; that was the only offer she ever made. She told him if he could not take that, all right; if he would take it he might have it. Later on he informed her that he accepted that offer; that was the only offer she ever made him. On the occasion of her only interview with defendant relative to this property, they did not agree to conceal the fact that they had made a contract and the terms of it. She told him she did not want — he need not say what she paid for it. Nothing was said about commission.- She did not remember whether the plaintiff mentioned the Smith house to her except when, subsequently to the sale, he asked her if she had bought a house. He never tried to sell her the Smith house. He told her about it. She said she had seen it and did not want it. He did not try to sell it to her; just mentioned it to her. He did not ask her what price she would give for it.
The defendant testified that he advertised the house for sale, and that the plaintiff was among the number that spoke about it. He wanted defendant to allow him to sell the place and defendant asked him what commission, and he said 3 per cent.; that defendant said he would not pay it, and he wanted to know why, and defendant told him that several others had offered to take it at 2 per cent. Defendant told plaintiff the house was in the hands of no person in particular, and would not be; that there was no exclusive agent; that the party that sold the place, did the business, and closed the deal would be the party that would get the commission, and that defendant would pay but one person. Mr. Wood telephoned Mrs. Moore’s name after that, but not at that time. He never brought her to look at the place; he never introduced her to defendant; he never made a sale of the house. Defendant asked $17,000 for it. Plaintiff never communicated any offer from anybody to defendant. He did communicate an offer of $13,000 from Mrs. Moore for the house. Defendant saw plaintiff but once, and that was when he came to defendant’s office; that was the last of him. He did communicate with defendant in some form about Mrs. Moore; he wanted to make an appointment for her to call. She did not come. She had been to defendant’s house before that — before this transaction. Defendant next heard from Mrs. Moore in connection with the sale of the house; it must have been the latter part of July that he received a letter. She wrote him about the house, asking if it was still for sale. He called her by phone and made an appointment to see her, and saw her. Later on the house was sold to her for $14,600. The sale must have been between the middle and latter part of July. The transaction was closed on August 14th.
It is not true that plaintiff was continually telephoning defendant, and working between him and Mrs. Moore during June and July. Defendant remembers that plaintiff came to see him once; plaintiff phoned defendant once about Mrs. Moore’s offer of $13,000. That was early in June. It was soon after the first call, probably a week or ten days, and that was the last he heard from him. At no time did Mr. Wood bring Mrs. Moore to defendant, he never brought her to look at the house, and never made a sale for defendant at all. When defendant refused to take the $13,000 Mr. Wood urged defendant to let him have another trial to see if he could not get a better offer, and defendant asked him how long he would want, and he said he would do it right away, and defendant said if he would take care of it in a day or two, he could go right ahead, and defendant never heard any more of it. After that it is not true that Mr. Wood frequently communicated with defendant by phone with regard to negotiations concerning this place. He does not know that Mr. Wood telephoned him after that. Mr. Wood was the first agent with whom defendant had placed the property to bring Mrs. Moore to defendant’s attention as a buyer. Mrs. Moore did not come to see defendant’s property by appointment made with Mr. Wood. She saw the property two or three weeks, perhaps longer, prior to the time the offer of $13,000 was made. Mr. Wood phoned it to defendant. Defendant did not tell Mr. Wood that he (the defendant) reserved the right to sell the place at less than $17,000 to anybody that he might bring. There was no appreciation in the value of the place from the time defendant authorized Mr. Wood to sell it, until it was sold, and defendant does not state that there was any deprecia tion. When Mr. Wood conveyed the $13,000 offer to defendant he gave him a day or two in which to get a better offer. That was all there was to it, except that defendant told him that, if he could not do any better than that, to drop the deal, and plaintiff said he would like the privilege of making another offer, or getting Mrs. Moore to make another offer; defendant told him if he would take the matter up right away, within a day or two, and secure another offer, defendant would give him the opportunity.
We have made this extended extract from the testimony to show that there was a question of fact for the jury, and that it would have been error had the court directed a verdict as requested by the plaintiff. We find no error in the rulings of the court upon the admission of evidence.
We have already said the meritorious question is whether the plaintiff was the procuring cause of the sale to Mrs. Moore, This was clearly a question for the jury under the evidence. We have examined the assignments of error based on the refusal of the court to give plaintiff’s requests to charge. The court did not err in refusing the requests.
The 18th assignment of error is based upon the following summary of the charge:
“ Now, gentlemen, to summarize the proposition again: In order to find for the plaintiff, you must find that he was the procuring cause. It is necessary for the plaintiff to show you, either that he introduced Mrs. Moore to this property, or, in other words, he was the first to call Mrs. Moore’s attention to this property; that Mrs. Moore was his customer, and that he initiated the negotiations, and that by reason of that negotiation and that introduction the negotiations were acted upon; the introduction was acted upon by Mrs. Moore and the negotiations were brought by reason of that introduction as a procuring cause to a successful and satisfactory conclusion between Mrs. Moore and Mr. Smith. Or, he must show you, if he did not introduce Mrs. Moore, that it was through his active negotiations that final satisfactory arrangement was reached between Mrs. Moore and Mr. Smith. Now, by active negotiations is meant, not a single introduction, not a single calling attention to, but carrying back and forth propositions, etc., which would result in a conclusion satisfactory to both parties. If he did not introduce Mrs. Moore to this property, but Mrs. Moore’s attention had been called to the property before that, and was not active in carrying back and forth propositions, and in inducing Mrs. Moore to purchase this property by such negotiations, then he cannot be said to be the procuring cause. If it should appear to you that Mrs. Moore had been introduced to this property before Mr. Wood was known in the transaction, and had her attention called to it as a purchaser, and that incidentally Mr. Wood had called her attention to it; that she had authorized the proposition; he carried that proposition and that then the negotiations ended; and that afterwards Mrs. Moore, after the interval of a time Mrs. Moore went back and conducted her own negotiations for the purchase of the property — then Mr. Wood would not be the procuring cause.”
We find no error in the charge, but that it correctly states the law and is supported by our own decisions. The first proposition, that, in order to recover, the plaintiff must show that he was the procuring cause of the sale; that the purchaser learned of the property through him; and that through his efforts a sale was made — finds support in the cases of Thuner v. Kanter, 102 Mich. 59 (60 N. W. 299); Douville v. Comstock, 110 Mich. 693 (69 N. W. 79); Brooks v. Leathers, 112 Mich. 463 (70 N. W. 1099); Antisdel v. Canfield, 119 Mich. 229 (77 N. W. 944).
We cite in support of the charge the following cases: Scribner v. Hazeltine, 79 Mich. 370 (44 N. W. 618); Hannan v. Fisher, 82 Mich. 208 (46 N. W. 225); Kelso v. Woodruff, 88 Mich. 299 (50 N. W. 249); Young v. Hubbard, 154 Mich. 218 (117 N. W. 632); Heenan v. Harris, 157 Mich. 187 (121 N. W. 741).
We have examined the following cases cited by plaintiff: Heaton v. Edwards, 90 Mich. 500 (51 N. W. 544); Decker v. Widdicomb, 137 Mich. 331 (100 N. W. 573); McGovern v. Bennett, 146 Mich. 558 (109 N. W. 1055); Reade v. Haak, 147 Mich. 42 (110 N. W. 130). In our opinion, these cases are not applicable, under the evidence in this case.
We find no error in the record, and the judgment of the circuit court is affirmed.
Bird, C. J., and Ostrander, Hooker, and Blair, JJ., concurred. | [
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Fellows, J.
(after stating the facts). We may lay aside the contention of the defendant that the facts surrounding the original transaction showed an agreement for a long-time loan to be renewed at frequent intervals. There was no definite agreement for any loan beyond the period of 90 days fixed in the first note. At the expiration of that time defendant could have paid, the note, plaintiff was not bound to renew it. Likewise we may lay aside the argument of plaintiff’s counsel, most ingeniously urged, that the defense of usury here relied upon is by way of set-off; that one who pays usurious interest may not sue to recover it; and that, as here presented, it amounts to a counterclaim which upon principle may not be allowed where an independent suit is not maintainable for its recovery. The defense of usury is perforce of the statute (2 Comp. Laws 1915, §§ 5998, 5999) and here goes to the consideration of the note sued upon. As here urged the defense is more in the nature of payment than of set-off. It should also be stated that we do not regard as important the fact that the usurious interest was paid in advance and was called “discount.” Whether it was paid at the beginning or the end of the 90 days is of no moment here. In the recent case of Umphrey v. Auyer, 208 Mich. 276, we pointed out that the usury statute covered interest “reserved, taken, or received.”
Thus stripped, the case presents the naked legal proposition of whether the maker of a series of notes upon which usurious interest has been collected may, when sued upon the last renewal note, interpose the defense of usury, and thus raise the question of the legal consideration of the note in suit. In other words, as between the immediate parties to the transaction may the maker, when sued upon the last of a series of renewal notes upon all of which usurious interest has been collected, have applied as payment the amount paid as interest?
Authorities upon the question are not wanting and to them we shall now address our attention, reserving consideration of our own until the last. The rule is thus broadly stated in 39 Cyc. p. 1003:
“In accordance with the general principle above stated the renewal of a usurious contract is itself usurious, being merely a new form of the same obligation. Likewise the substitution of a different kind of security or. one executed by other parties for the original usurious instrument does not expunge the usury so long as the taint remains in the consideration. The fact that the security in question is the last of a long series of successive renewals does not changé its character. The original usury descends with the original consideration along the whole line and the last is no better than the first.”
The supreme court of Iowa early had this question under consideration. In the case of Campbell v. McHarg, 9 Iowa, 354, that court, speaking through Justice Woodward, said:
“When the attention of the court is called to the question of usury, to say that the inquiry is limited to the identical contract (or note) before them, and that they cannot look back into a preceding note, or notes, for which the present one was substituted, is contrary to both the letter and the spirit of all, or nearly all, the adjudications. These teach that, how-. ever it may be covered by changes and substitutions, if usury be found to exist, either directly or indirectly, its taint continues and affects all the parts, through which it runs. The substitution of one contract for another, the taking a new note for an old one, will not nursce it.”
The supreme court of Alabama in Masterson v. Grubbs, 70 Ala. 406, says:
“While these principles illustrate the general policy of our laws regulating the subject of usury, it is well settled, both in this State and elsewhere, that the mere renewal of a note or other security, between the same parties, does not purge the original transaction of the taint of usury.”
In Pickett v. National Bank, 32 Ark. 346, it was said by the court:
. “The usurious interest in this instance, having been carried into the general account, and made part of the sum found due upon final settlement, taints the whole contract with usury, the fact that the account was closed by note amounts to nothing; it matters not whether usury was charged and taken by any tacit assent of the firm by the bank in stating the monthly account, or by note substituted for the one first given; the question is not how the contract was closed, or renewed, but whether any part of the sum charged, and for which the note was executed, was for the use or forbearance of money at a greater rate of interest than, allowed by law to be taken. Such is clearly the rule, as laid down by the elementary writers, and accords; with numerous decisions, to some of which we will refer.”
In the early case of Reed v. Smith, 9 Cow. (N. Y.) 647, it was said:
“The note upon which this suit is brought, is most clearly a continuation of the original note, given in April, 1816, when the loan was obtained by Parker. If that note, therefore, was given upon a usurious consideration, the taint which it imbibed attached to each of the series of securities which were subsequently taken, and affects and destroys the one in question.”
In the case of Quinn v. National Bank, 8 Ga. App. 235 (68 S. E. 1010), it was held (we quote from the syllabus) :
“Any payments made upon an usurious debt, even though, the suit be upon notes given in renewal there-: of (but without purging out the usury), are to be deducted from the principal debt and the lawful interest.”
We likewise quote from the syllabus of the case of First National Bank v. McCarthy, 18 S. D. 218 (100 N. W. 14), where the supreme court of that State had the question under consideration:
“A note executed as a renewal of a note providing for usurious interest is itself tainted with usury.”
In Taylor v. Morris, 22 N. J. Eq. 606, the question was considered by the court and it was said:
“It is well settled that the mere substitution of one security for another security which is usurious, will not remove the original taint. An exception to this rule exists in favor of a bona fide holder of an usurious security who receives from the maker a new security without any knowledge of the usury. In his hands the :new security may be enforced (citing authorities).
“If the immediate parties to the transaction repent, and by mutual consent the usurious security be surrendered, a new promise to pay the sum loaned with legal interest may then be enforced, on the principle that the parties have purged the transaction of its original vice (citing authorities).
“But as between the parties to the usurious instrument, or as against a subsequent holder with knowledge of the defect, the original taint attaches to all substituted obligations or securities, however remote, unless the original vice be removed by expunging the usurious element (citing authorities). No recovery can be had upon any succeeding obligation which operates to secure the usurious exaction. A new settlement of the accounts between the borrower and lender, and the cancellation of the original security, or the introduction of a new consideration in the shape of an additional loan, will not operate to give such an instrument validity.”
In Gibson v. Stearns, 3 N. H. 185, it was remarked by the court:
“The better opinion, is, that a mere substitution of another security for the one tainted with usury, between the parties to the corrupt agreement, does not take a case out of the statute.”
We quote from the syllabus of Brown v. National Bank, 169 U. S. 416 (18 Sup. Ct. 390):
“The forfeiture declared by the statute is not waived by giving a renewal note, in which is included the usurious interest. No matter how many renewals may be made, if the bank has charged a greater rate of interest than the law allows, it must, if the forfeiture clause of the statute be relied on, and the matter is brought to the attention of the court, lose the entire interest which the note carries or which has been agreed to be paid.”
In Flemming v. Mulligan, 2 McCord, 173 (13 Am. Dec. 707), it was said by the South Carolina court:
“The fact of this note’s being a renewal for a part of the original contract, it being between two of the parties to the original contract, does not vary the case; for where a bond has been given upon a usurious contract or consideration, which is afterwards canceled, and a new bond given upon the same terms, it is clear that the substitution of the one security for another cannot avail the parties to the usury, because as the second bond was given in consideration of the first which was paid, it follows that the second must be void also.”
The court of last resort of Mississippi in Torrey v. Grant, 10 Sm. & Mar. 89, held:
“As the original note was affected by usury, every renewal or change of security must be equally affected.”
In National Bank v. Lewis, 75 N. Y. 516 (31 Am. Rep. 484), that court, following its former decisions, held (we quote from the syllabus):
“Where the note in suit is the last of a series of renewed notes, the original loan being usurious, the taint of usury affects the whole; the forfeiture of the entire interest follows and credit must be given for all the interest which has been paid from the beginning of the transaction.”
It should be stated, as a matter of accuracy with reference to this case, that after the opinion was handed down the Supreme Court of the United States decided the case of Barnet v. National Bank, 98 U. S. 555, in which it was held that under the terms of the national banking act the recovery of twice the amount paid as unlawful interest could only be had in an independent suit for such penalty, and upon rehearing of the Lewis Case (National Bank v. Lewis, 81 N. Y. 15), such holding of the United States Supreme Court was recognized as controlling on that point. But this affected the remedy as to the penalty, not that portion of the case which we have above quoted which has reference to the effect to be given a renewal note. In the later case of Sheldon v. Haxtun, 91 N. Y. 124, that court again had before it the question as between private parties, and it was said by Chief Justice Andrews on this subject:
“The surrender of the old note and the extension of time was ample consideration for the new note, but the substituted security was tainted with the vice of the original transaction. We need not consider how the courts of Illinois would deal with the question if the suit had been brought in that State. The fact that the original loan was at a rate of interest lawful in that State, does not make the contract lawful here, nor does the fact that the new note was made in that State and prescribed a rate of interest lawful there, take it out of the operation of the well-settled doctrine that a new security for a usurious debt is affected by the usury in the original transaction.”
And Mr. Justice Earl in the same case said:
“If this note for $1,000 had been given in this State, even with the lawful rate of interest mentioned therein, in renewal of or in substitution for the prior usurious note, it would also Lave been tainted with usury and void. A substituted or renewal note thus given is held void for one or both of these reasons: The new note in such a case is given in renewal or continuance of the usurious contract, and is, therefore, void, for the same reason that condemns that contract; or it is a new security for a usurious debt or contract and void on that account.”
The supreme court of Pennsylvania in Overholt v. National Bank, 82 Pa. St. 490, speaking through Mr. Justice Sharswood, said:
“A renewal note is not payment of the original debt, and a new debt or novation in view of the usury laws, however it may be, if the parties so intend, as to other questions. If it were held otherwise nothing would be so easy as to evade the statute. What the creditor is entitled to recover is the original loan with lawful interest, and the borrower is entitled to credit for all that he has paid beyond what by law he was bound to pay. It is clear then as to the national banks that whenever they charge or stipulate for an illegal rate all payment of interest and not merely the excess is illegal.”
And while that court later recognized the holding of the United States Supreme Court as to the proper remedy for the enforcement of the penalty under the national banking law (see First Nat. Bank of Clarion v. Gruber, 91 Pa. St. 377), the rule announced by Justice Sharswood in the language above quoted as to the effect of a renewal note has not, so far as we have been able to ascertain, been in any way modified.
The textwriters lay down the same doctrine announced in the foregoing cases. Mr. Webb, in his work on Usury (§ 308), says:
“If a transaction is usurious in its inception, it remains usurious until purged by a new contract; and all future transactions connected with or growing out of the original are usurious and without valid consideration. An original taint of usury attaches to the whole family of consecutive obligations and securities growing out of the original vicious transaction; and none of the descendant obligations, however remote, can be free of the taint if the descent can be .fairly traced.
“Every renewal of a. note given for a usurious loan of money is subject to the defense of usury between the original parties and purchaser with notice; but a renewal in the hands of a bona fide purchaser for value, without notice, is valid.”
And Mr. Tyler, in his work on Usury (p. 346), says:
“As a general proposition, it may be affirmed that the original taint of usury attaches to all consecutive obligations and securities growing out of the original vicious transaction; that is to say, it attaches to all renewals of the original security whenever made or given; and it also vitiates every new security into which the original usurious consideration enters.”
The following cases are in accord with those discussed: Johnson v. Grayson, 230 Mo. 380 (130 S. W. 673); Whinery v. Garrett, 24 Ky. Law Rep. 1558 (71 S. W. 855); Dean v. Maxfield (Tex. Civ. App.), 209 S. W. 466; Arnold v. Macdonald, 22 Tex. Civ. App. 487 (55 S. W. 529); Lewis v. Hickman, 200 Ala. 672 (77 South. 46); Compton v. Collins, 190 Ala. 499 (67 South. 395); Paine v. Levy, 142 Ky. 619 (134 S. W. 1160); Gilbert v. A. A. Clark & Co. 186 Iowa 904, (173 N. W. 104); Beals v. Lewis, 43 Ohio St. 220 (1 N. E. 641); New Hampshire Banking Co. v. Waller, 5 Kan. App. 881 (47 Pac. 543); New York Security & Trust Co. v. Davis, 96 Md. 81 (53 Atl. 669).
The language of the court in Cornell v. Smith, 27 Minn. 132 (6 N. W. 460), was thought by the trial judge to sustain plaintiff’s counsel and some of the language used does fortify their claim. If this was an action to recover usurious interest voluntarily paid that case would be applicable. But this court has held that voluntary payments of usurious interest may not be recovered under the usury statutes which have been in force since section 5 of chapter 6, part 1, title 7, of the Revised Statutes of 1838 was amended and section 7- of the same chapter was repealed by Act No. 47 of the Laws of 1843, nor under the former statute except in the manner therein provided. But it is the rule of this court that the statute may be appealed to as a defense when the usurious obligation is sought to be enforced; and this is true even though a bill may not lie to restrain its enforcement (Vandervelde v. Wilson, 176 Mich. 185, 190). The rule is well recognized in this jurisdiction that one who voluntarily pays usurious interest may not maintain a suit to recover it while one against whom a usurious contract is sought to be enforced may avail himself of the statute as a defense. The statute is available as a shield but not as a sword.
One might infer from some of the language of the court in Peterborough National Bank v. Childs, 133 Mass. 248 (43 Am. Rep. 509), that that court entertained contrary views to those courts from whose decisions we have quoted. The cases cited by that court, however (Rohan v. Hanson, 11 Cush. [Mass.] 44; Richardson v. Woodbury, 12 Cush. [Mass.] 279; Hubbell v. Flint, 15 Gray [Mass.], 550), to sustain such language are not similar to the instant case, and the supreme court of Massachusetts finally disposed of the case before it upon the authority of Barnet v. National Bank, supra. In the earlier case of Chadbourn v. Watts, 10 Mass. 120 (6 Am. Dec. 100), that court had also held that where there had been two renewal notes neither of which bore usurious interest, the defense of usury in the first note was not available.
Let us now turn to our own cases. Some language will be found in our earlier decisions sustaining the contention of plaintiff’s counsel. But we think a careful analysis of the earlier cases will demonstrate that in so far as the points actually decided by them goes, our later cases, to some of which we shall refer, are not out of harmony with them. The point actually decided in Thurston v. Prentiss, Walk. Ch. 530, was that a surety who has paid the amount of a judgment against him and his principal upon which execution has been levied upon his property, may recover against the principal the amount so paid, and that the principal may not interpose against such an action the defense of usury. This case and Farmers’ & Mechanics’ Bank v. Kimmel, 1 Mich. 84, may be regarded as the forerunners of a line of decisions of this court in which it has uniformly been held that the defense of usury is a personal one. The Thurston Case was again before the court in Thurston v. Prentiss, 1 Mich. 193. The transaction out of which that litigation grew arose before the act of 1843, and it was there pointed out that under the statute in force when the cause of action accrued (Rev. Stat. 1838, p. 160) the maker of the note could pursue either of two courses, i. e., he might when sued defend on the ground of usury in which case the plaintiff would forfeit threefold the amount of the usurious interest and defendant have his costs, or he might bring an independent action under the statute in debt and recover threefold the amount of the excess of interest paid, but that he might assert such claim in no other way. While our statute is not now the same as it then was, the principle of this case as we have already pointed out was reiterated in the late case of Vandervelde v. Wilson, supra. In the Thurston Case it will be seen the maker of the note was seeking to assert the defense of usury not against the payee but against his surety who had paid a judgment rendered on the note and was seeking to be reimbursed.
Language is used and authorities cited in support thereof in Craig v. Butler, 9 Mich. 21, which sustain plaintiff’s counsel. But it will be noted that after such discussion the court expressly reserved decision of the question now before us in the following language :
“It is unnecessary for us to decide how far these views should be followed where there is no change_ of parties, or how far a surety may claim exemption where the substituted paper does not cancel the original liability, but is a mere renewal of it.”
The facts of that case were these: Notes had originally been given by Frost & Bradley to Butler, which were indorsed by the Craigs, which it is to be inferred contained usurious interest. In August, 1857, new notes in the sum of $2,540 were given by Frost & Bradley to Butler; they were likewise indorsed by the Craigs and contained no usurious interest; this was also true of another note of $50. Frost & Bradley assigned to the Craigs property then supposed sufficient to pay all debts upon which the Craigs were liable. Later the Craigs gave the notes in suit to Butler and upon them only lawful interest was reserved. It was held that the Craigs could not interpose the defense to this action that usurious interest had been paid by Frost & Bradley. This was but following the earlier holdings that the defense of usury is a personal one.
Plaintiff’s counsel rely most strongly on the early case of Smith v. Stoddard, 10 Mich. 148 (81 Am. Dec. 778), and it is urged that language there used is controlling of the instant case. We quote such language as is thought applicable:
“The mortgage in suit is a new security, given with its accompanying note upon a complete settlement of all the former transactions. The sum of $500 embraced in it is money actually lent by complainant to defendant. It includes no direct usury, because the principal had never been reduced or intended to be reduced; all payments which had been made, having been expressly made upon interest. It appears that the usurious interest was always either paid in money or put in the shape of separate due bills and amounts. We do not think, as to this sum of $500, that there can be any deduction allowed. When parties have actually paid the usurious interest, and then come to a bona fide settlement, and make new securities which include nothing but an actual loan, and are not meant as. mere evasions, we do not think the new contract can be regarded as either usurious in itself, or based on a usurious consideration. The statute does not contemplate the recovery back, or allowance of unlawful interest once paid, unless in a suit upon the contract under which it was exacted. A new security, between the same parties, embracing not only a valid debt, but also a claim for unpaid usurious interest, would undoubtedly be founded to that extent on a usurious consideration, and therefore liable to abatement. But the abatement cannot, we think, under our statute, go further. The law does, not absolutely avoid contracts for usury, and if parties completely perform them they are remediless.”
It is unfortunate that the record in this early case is not available so that we might have before us the terms of the “complete settlement,” the “bona fide settlement” which was not meant as a mere evasion of the usury laws. Courts have uniformly held that there may be such a settlement between the parties as purges the transaction of its usurious taint'. What must be done to so purge the transaction is a matter upon which the authorities differ. One way of purging the contract of the usurious taint was pointed out in Carr v. Taylor, 62 N. Y. Supp. 849; there may be others. It is said in 39 Cyc. pp. 1002, 1004:
. “The general principle determining when an indebtedness infected with usury is to be deemed disinfected may be stated as follows: If the tainted obligation is with the full knowledge and consent of the borrower, finally canceled or abandoned, and a new obligation, containing no part of the usury, is executed in legal form, and supported solely by the moral obligation resting upon the borrower to pay the money actually received with legal interest thereon, such new obligation is valid and enforceable. But so long as the original usurious obligation continues to exist, based upon a consideration in which usury inheres, the taint of usury persists whatever be the form which the subsequent dealings of the parties may cause it to assume, and even though new parties may have been introduced, or the borrower allowed to assume a different relation to the security affected with usury.
“When a usurious obligation is settled and abandoned, and a new security taken for the debt lawfully due with lawful interest thereon, such new security rests upon a consideration purged of usury, and is valid. The fact that the lender by. such settlement retains the usury already paid will not taint the new contract.”
We need not determine in the instant case what is necessary to be done in order to purge the transaction of its usurious taint as each of the notes, including the one in suit, was infected with that taint. In this regard the instant case is clearly distinguishable from Smith v. Stoddard, supra. In that case there had been a complete, a bona fide, settlement and a new obligation given which bore only lawful interest.
When we examine these earlier cases, having in mind the actual case before the court and the actual question decided, we are constrained to the view that our later cases are not out of harmony with them. Mr. Justice Campbell, who wrote the opinions in Smith v. Stoddard, supra, and Craig v. Butler, supra, also wrote the opinion in Thorp v. Deming, 78 Mich. 124. The record in that case is available, and is before us. It does not differ from the record in the instant case except that the facts there were in dispute. The defendant there had given his note which he claimed upon the trial contained usurious interest; this was followed by two renewal notes which he like wise claimed contained usurious interest. The suit was upon the last of these three notes. The question of usury was in dispute, but the trial judge had charged the jury that if they found usury, and found that the payments made on a previous note were sufficient to discharge it after deducting the usury, plaintiff could not recover. Error was assigned upon this and similar instructions. In this court plaintiff’s counsel insisted, as is here insisted, that usury would not be considered which did not enter into the very contract sued upon. We quote from their brief:
“We contend that when the new obligation was given for the original' indebtedness, with the interest and cost of making the papers added, the question of what was paid by the defendant for the purpose of getting an extension of time, on account of his being in straightened circumstances, or what was paid for the use of the money, becomes immaterial, as it does not enter into the contract in question.”
And the cases, we have just considered with others were cited to support such contention. This court declined to follow this contention and in a brief opinion affirmed the case.
Gardner v. Matteson, 38 Mich. 200, did not involve the precise question here under consideration, but it was similar in that it involved the giving of a series of renewal notes, each one of which, including the last one, was tainted with usury. It was there said by Mr. Justice Marston, speaking for the court:
“The defense of usury is a personal one, and may be waived, and so may the party voluntarily pay usurious interest, and where he does so he will not be permitted to recover it back. To this extent the statute undoubtedly goes, but it never was intended that by 'substituting new paper, with usury added, for the old paper as the same become due, the question of usury could not thereafter be raised, or that the creditors by taking a. mortgage upon personal property to secure the payment of such usurious debt could by taking possession of the property and proceeding to sell the same, thereby preclude the debtor, in an action of replevin to recover possession of the property from showing the entire transaction, upon the theory that the action was not one brought upon the usurious note. To give the statute such a construction would be but pointing out a method for the grasping and unconscionable creditor to evade our usury laws entirely.”
In Bateman v. Blake, 81 Mich. 227, there had been paid monthly payments which were receipted for as consideration of the extension of time; they were usurious. This court held that it was of no moment that they were treated by the parties as interest, and notwithstanding the fact that they had been applied by the parties as interest, it was held that the law would apply them to the extinguishment of the debt. Mr. Justice Cahill wrote for the court, saying:
“The trial judge rightly refused to treat the monthly payments as interest or compensation for extensions, or as anything else than payments on the principal debt. It was of no consequence what the parties called those payments. The law applies them, where they belong, to the extinguishing of the debt.”
This case was cited with approval in Fretz v. Murray, 118 Mich. 302, where Mr. Justice Long, speaking for the court, said:
“Under the North Carolina statute, the entire interest is forfeited in usurious contracts, and the courts apply all payments of interest, though made as such, upon the principal debt Moore v. Beaman, 111 N. C. 328; Gore v. Lewis, 109 N. C. 539. In Gill v. Rice, 13 Wis. 553, the Supreme Court of Wisconsin held that, where no direction had been given by the debtor, the law would apply a payment upon a usurious contract to the extinguishment of the principal sum loaned. The same rule is adopted in Stanley v. Westrop, 16 Tex. 200. In Bateman v. Blake, 81 Mich. 227, this court applied the rule that on usurious contracts the payments, though made as interest, must be applied upon the lawful debt, although the statute at that time avoided the excess of interest only.”
In Estey v. Building & Loan Ass’n, 131 Mich. 502, Mr. Justice Montgomeey said:
“But, as the express reservation of 9 per cent, interest was illegal, it tainted the contract. What is the complainant’s remedy? It is claimed that all payments made should be applied on principal, and that, on payment of the balance of the principal, the mortgage should be discharged. On the other hand, it is contended that money paid as interest cannot be recovered back. This question was discussed by Mr. Justice Long in Fretz v. Murray, 118 Mich. 302. In that case it was held that, where payments were made upon a usurious contract without designation, they should be applied in extinguishment of the lawful debt — i. e., the principal; but the court found it unnecessary to decide where payments made on the contract as interest should be applied in reduction of the principal. The case of Fowler v. Trust Co., 141 U. S. 384 (12 Sup. Ct. 1), was cited, holding that the payments shall be so applied. We are satisfied with the reasoning of that case, and hold that, where it is sought to enforce a contract which was usurious at its inception, in so much as our statute provides that the court shall declare the interest void (section 4858), and that the debtor shall not be compelled to pay interest (section 4857), the recovery should be limited to the principal sum, less payments actually made, however designated at the time of payment. This is the only rule which effectuates the intent of the statute.”
In the recent case of Continental National Bank v. Fleming, 170 Mich. 624, Mr. Justice Stone, speaking for the majority of the court, said:
“It is also the rule in this State that, if the transactions on account of which the indebtedness was incurred were tainted with usury, its effect cannot be avoided by taking other paper or security for the indebtedness, including the usurious charge.”
We are satisfied that by the overwhelming weight of authority in this State and elsewhere two proposi tions' are established, i. e., (1) that where a renewal note is given containing and. providing for usurious interest, or where usurious interest is exacted, the defense of usury not only in the particular note sued upon but in all of its predecessors where it exists, if it exists in all, is available to the maker as a defense; and (2) that as between the parties to the transaction, or holders with knowledge, all payments of usurious interest made on the series of notes will be applied by the law to the extinguishment of the debt, and this even though the parties have treated such payments as payments of interest. To hold otherwise would be but to point a way to the evasion of this beneficent statute. If language not necessary to decision has been used in some of our earlier cases expressing a contrary view, it must yield to the language used in' our later cases where the questions were directly involved. For certain purposes the giving of a renewal note may be treated as payment of the old one, but it will not be so treated where the usury statute is involved. In concluding the discussion of these questions we quote with approval the language of the supreme court of Illinois in Saylor v. Daniels, 37 Ill. 331 (87 Am. Dec. 250):
“The court below refused to apply upon the existing note the payments formerly made upon the usurious interest. This was error. While it is the rule of this court that usurious interest once paid voluntarily can not be recovered back, yet that rule does not apply where the transaction has not been settled, and the lender brings his action for the recovery of an alleged balance. In such case the borrower may defend by claiming a credit for whatever usurious interest he had paid in the same transaction. This is not using the usury law as a sword, but strictly as a shield. The fact that new notes have from time to time been given does not change the case. The court looks at the substance, not at the form. When the $400 was loaned in this case, it continued one transaction until paid, without reference to the number of balances struck, and new notes given, and until fully paid, the borrower may insist upon having past usurious payments legally applied.”
We do not discuss the bona fides of the present plaintiff or its immediate predecessor as the case was not tried or the record made to present that question. For this reason and the further reason that the case is here upon writ of error and not case-made (Stamp v. Steele, 209 Mich. 205), we decline to follow the suggestion that we here enter judgment for the amount of the tender.
The case will be reversed with a new trial. Defendant will recover costs of this court.
Moore, C. J., and Steere, Brooke, Stone, and Bird, JJ., concurred. Clark and Sharpe, JJ., did not sit. | [
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Clark, J.
In 1904, Alvin Hines, a widower and father of Grace Hines, now Grace Connelly, married Nettie Hines. In 1911, Mildred Hines, the plaintiff, became a legally adopted child of Alvin Hines and Nettie Hines. In 1915, this husband, 52 years of age, and wife separated and, for the purpose of settling their property matters and rights and providing for the support, maintenance and education of plaintiff, then 5 years of age, entered into a written agreement that Alvin Hines should pay Nettie Hines $400 and should take out and carry with some reputable insurance company a life insurance policy in the sum of $1,000, payable to the said plaintiff Mildred Hines as beneficiary, and in consideration of these undertakings on the part of the husband the wife agreed to release him from all further claims for support and maintenance of herself and said Mildred Hines. The sum of $400 was paid as agreed. At the time of the said marriage Alvin Hines was the holder of a benefit certificate in the sum of $1,500 issued to him by the Modern Woodmen of America, a fraternal society, each of whose members, on paying each month a .certain amount of dues or assessments as fixed by the society, is entitled to have paid at his death to his beneficiary the amount of insurance named in the certificate.
Soon after the marriage Nettie Hines, the wife, and Dorothy Connelly, a granddaughter, were designated in said certificate as the beneficiaries, the wife in the sum of $1,000 and the granddaughter in the sum of $500. Following the agreement aforesaid and in May, 1915, Mildred Hines was made beneficiary in said certificate in the sum of $1,000 and Dorothy Connelly was again made a beneficiary in the sum of $500. Mr. Hines paid the dues and assessments required by the society until April, 1917, when the defendant Grace Connelly was designated the beneficiary of the entire amount of the certificate, $1,500.
At the time of the last change in the beneficiary Mr. Hines was in arrears as to assessments, of which the clerk of the local camp of the society testified:
“I had refused to carry this assessment further because I felt it would develop I would have to pay it, so I wrote to his sister and told her the condition. Soon I got a letter from Grace Connelly in Dakota and she asked me to send a statement of what he owed and she would send me check. I done so. I got a return letter with a check in it. Since that time she has been paying these assessments and dues.”
Grace Connelly did not know of the agreement respecting Mildred Hines.
Of Mr. Hines’ financial condition in the following September, Mrs. Hines testified:
“After he left he lost his property somehow. I know through hearsay where it went. I know he certainly lost his property. He was without a cent, without a penny when he was there; 45 cents in money and a ticket to Lansing, he said was all he had. I know he finally went to live with some relatives in Lake Odessa, and went from there to the county farm.”
Later, being insane, he became an inmate of the Traverse City State Hospital.
The. infant plaintiff Mildred Hines has been supported by Mrs. Hines since the said separation. Learning of the last change in beneficiary Mildred Hines, plaintiff, by Nettie Hines as next friend, in March, 1918, caused the bill of complaint ttí be filed in which it is prayed that Alvin Hines may be required specifically to perform the said agreement with Nettie Hines and that he may be required by the order and decree of the court to change the beneficiary in said certificate so that plaintiff Mildred Hines will be named as beneficiary therein and will be entitled to receive $1,000 of the insurance in case of the death of Alvin Hines, and that Alvin Hines be required to pay all dues and assessments, and that respecting the plaintiff he be enjoined from further changing the beneficiary in said certificate.
These allegations of the bill are not denied.
“Your oratrix further shows unto the court that the said Alvin Hines is broken in health, and is insolvent and uncollectible at law, and that it would be impossible for him to take out and carry any additional life insurance in any reputable life insurance company or in said Modern Woodmen of America,” * * *
And
“Your oratrix further shows unto the court that the said Nettie Hines has no property (except a small home) and no income except the small amount that she is able to earn by her labor, and that neither your oratrix or the said Nettie Hines is able to pay the monthly assessments and dues on said $1,000 insurance, which at the date hereof amounts to the sum of $1.35 per month, and unless the defendant Alvin Hines is required by said court to pay said assessments and dues on said $1,000 of insurance the same will lapse and become null and void,” * * *
Defendants Grace Connelly and Alvin Hines by his guardian ad litem answered. Alvin Hines died at Traverse City January 9, 1919. His death was suggested and it was ordered that the cause proceed against the defendant Grace Connelly, and it was also ordered, upon petition of plaintiff, that the society, Modern Woodmen of America, be restrained from making settlement with Grace Connelly or any other person respecting $1,000 of said insurance until the further order of the court. Upon hearing decree was entered awarding to plaintiff Mildred Hines $1,000 of said insurance subject to a lien in favor of Grace Connelly for the amount of assessments paid by her, and the society was enjoined from paying the sum of $1,000 of said insurance except as provided by the decree. Defendant Grace Connelly has appealed.
In disposing of the case we shall refer to but one of the contentions of defendant: that as against the defendant, plaintiff's claim is not equitable. This contention is so fully sustained in the similar case of Knights of the Modern Maccabees v. Sharp, 163 Mich., at page 457. (33 L. R. A. [N. S.] 780), that the opinion in that case should be read in connection herewith.
The insured, an inmate of a county house and then of an asylum for the insane, was unable to pay assessments due the society. The plaintiff and her next friend likewise were unable to pay them. Nearly two years before the death of the insured, defendant Grace Connelly saved the insurance by paying past due assessments which had been carried by the clerk of a local camp> of the society and said defendant paid all subsequent assessments, in fact, paid the assessments for nearly a .year after this suit was commenced against her. She is free from fraud. As against the defendant, this child has no claim to equitable consideration.
It follows that the decree of the lower court is reversed and one will be entered dismissing the bill of complaint, defendant Grace Connelly to recover costs of this court.
Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Campbell, J.
An ajaplication is now made, after cause shown, for a peremptory mandamus to compel the respondent to set aside an order granting an injunction, which is claimed to be beyond his authority, and which lie has refused to disturb. As the grounds of the motion do not rest on the mere impropriety but upon the illegality of this •order, and as some points of jurisdiction are raised both as to that of the respondent and our own, a brief reference to the nature of the controversy is necessary. It will not be important to go into particulars very far.
The injunction was issued in a suit in equity brought in the circuit court for the county of Iosco, by Dewitt C. Welch and J. Frederick Behr against Charles M. Prescott and Charles M. Averill and the Lake Huron & Southwestern Railway Company, and the Tawas & Bay County Railroad Company. The grievance complained of was the refusal of the latter company to carry logs and lumber for complainants at rates and in the manner agreed upon in a contract made in April, 1878, by a firm named Hall, Shook & Co., of which complainants were members, and to whose rights they claim to have succeeded. The grievance is alleged to have arisen out of the following state of facts:
Hall, Shook & Co., having purchased the lumber on certain lands not very far from Tawas City, contemplated making a private tramway to that place for their own convenience. Prescott and some other persons persuaded them to give up their private scheme and aid in another for the construction of a longer tramway reaching beyond their lumber grounds, to be in the hands of a corporation organized under " the General Laws relating to tram railways. Hall, Shook & ' Co. declined taking stock but agreed to build a few miles of the road for considerations moving in part from Prescott and other parties, and in part from the corporation. The agreement they made with the corporation required the latter to' carry their lumber of specified kinds, taken from the lands referred to, at seventy-five cents a car load of four tons — the cars to be loaded by Hall, Shook & Co. and drawn to Tawas .by the corporation. No time was fixed within.which the lumber carriage was to be completed, except that it embraced the lumber from certain lands. The road was completed.
The bill after showing this, sets out that debts were created, and in course of time an assignment made by the corporation under which Prescott became purchaser of the •assets and through him they passed to the Tawas & Bay County Kailroad in which he is principal stockholder. This corporation is a railroad and not a tram road company and its road is considerably longer than the other. There are allegations of frauds on the part of Prescott against the interests of the original corporation in managing to absorb the assets.
It is then averred that the new company refuses to carry out the old agreement and requires large prices, and otherwise violates its supposed duty to complainants.
The circuit judge enjoined the relator by preliminary injunction from running over so much of the road as was built by complainants, except on condition of carrying logs and lumber on the terms agreed upon in April, 1878.
There are two considerations to be noticed on the merits of this hearing — First, whether the circuit court could take jurisdiction of such a case at all; and second, whether it had power under any circumstances, to issue such a preliminary injunction. Upon the first question we shall only refer to a few of the general outlines of the case. The second will be dealt with separately.
This agreement was not of such a nature as to give complainants any more claim against the property and road-bed than would be possessed by any other contractors. If the price had been payable in any other way, and no lien reserved, the road would not be bound in any SUch way as would allow such a bill as the present to enforce a specific, claim on it. The contract to run the lumber of complainants is the same in all respects as if made with anybody else, and is no more than an ordinary executory contract. If there had been no change of owners'it is difficult to see how equity could have anything to do with enforcing it. '
But there can be no room for claiming any legal identity between the two corporations. .And before any creditor can assume to inquire into the transmutation of assets he must put himself upon the footing of a judgment creditor. In that capacity he could do no more than reach assets equitably belonging to his debtor. In any other capacity he has no concern with his debtor’s doings.
It does not now occur to us in what possible way equity could relieve complainants on the facts averred.
But the present case is one where the court has undertaken to dispose of the merits without a hearing in the ordinary course of justice. The interlocutory order, as it is called, gives all the substantial relief that is prayed for. It has been decided repeatedly that any decree or order divesting possession or rights on a preliminary inquiry is illegal'and void, so that no one need respect or obey it. People v. Simonson 10 Mich. 335; Port Huron & Gratiot Ry. Co. v. Judge of St. Clair 31 Mich. 456; Salling v. Johnson 25 Mich. 489; McCombs v. Merryhew 40 Mich. 721; Arnold v. Bright 41 Mich. 207.
Any such order made in an equity case is a final decree and appealable as such. Barry v. Briggs 22 Mich. 201, and above cases. But as before suggested it is more than erroneous, and is absolutely void. • An appeal, though admissible, is not necessary to rescind it. But an appeal, if resorted to, will not give speedy redress, and parties who áre interfered with in such a summary way ought if possible to get some, quicker relief and be saved from being obliged to take the risk of any further vexation by defending against contempt proceedings in ease they disregard the injunction, as was done in People v. Simonson and Brewer v. Kidd 23 Mich. 440.
The question thus arises whether mandamus is the proper remedy. "We have already practically settled this in P. H. & G. Ry Co. v. Judge of St. Clair, where the point was presented and decided. But it may be proper to refer to some of the reasons for so holding.
The jurisdiction of this court in mandamus eas'es is not statutory, but plenary, and supervision is given over all inferior tribunals by the Constitution, Art. 6, sec. 3. Under the constitution legal and equitable jurisdiction is united in the circuit courts, and it is enjoined that distinctions between the two jurisdictions shall be. removed as far as possible. Sec. 5. In granting this remedy, courts are always disposed to confine it to cases where there is no other adequate specific remedy. But the existence of a remedy of another nature which is not adequate furnishes no reason for refusing it, if the necessity of justice requires it. We had occasion in La Grange, relator v. State Treasurer 24 Mich. 468, to consider this jurisdiction quite fully and we think the views there expressed are • in accordance with the soundest authority. Mandamus is á prerogative' writ designed to afford a summary and specific remedy in those cases where without it the party will be subjected to serious injustice. As pointed out by the eminent authorities there cited, it is from its very nature a remedy that cannot be hampered by any narrow or technical bounds. The right coupled with the necessity of such a vindication of it supports'the jurisdiction, and the court in using its discretion, while careful not to use this writ when it is not essential, will apply it where it is.
As the English Chancery was not inferior to the King’s Bench, that is reason enough why there are no precedents for the writ in chancery cases. But as explained in the cases just cited it is well settled that the existence of a specific remedy in equity does not oust the legal jurisdiction, but only appeals to the discretion of the common law court. Mr. Spence in his treatise on Equitable Jurisdiction refers to the jurisdiction in mandanms as one which if freely exercised might have rendered much of the interference of equity needless. 1 Spence Eq. Jur. 704. In a majority of cases the usual. remedies are sufficient, and the necessary delays attending them are not so serious as to require any extraordinary remedy.
But in the present case the whole business of the corporation is stopped unless the company submits to conditions which the court has no power to impose. If the officers disobey the writ they have to decide for themselves whether it can safely be done, and few persons are willing or should be compelled to act under such a pressure. An appeal always involves considerable delay, and during the interval there is room for new controversies. The case therefore is urgent, and as there is no doubt of the illegality of the order complained of, it should not be continued to menace the persons engaged in. the enterprise. They should not be "driven to the alternative of seeming to defy the authority of the courts.
We think a mandamus is a proper remedy and should be granted, with costs against the complainants in chancery.
The other Justices concurred. | [
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Cooley, J.
When one sues to recover damages for a negligent injury, the gravamen of his complaint is that he „has been damnified by the wrongful and negligent action of the defendant without having contributed thereto by negligent conduct of his own. The absence of contributory negligence is therefore a part of his casé, and it is quite proper to say that he should show that he acted with due care. Le Baron v. Joslin 41 Mich. 313. But this only requires of him that he should put in evidence the facts and circumstances attending the injury, and if these show negligent conduct in the defendant from which the injury followed as a direct and proximate consequence, and do not show any contributory negligence in the plaintiff, a prima facie ease for a jury is made out. He cannot be required to go further than this in negativing his own fault, and in many cases where there are no eye-witnesses, it would be impossible.
Nor is it necessary that the absence of contributory negligence should be shown beyond cavil or question. If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just opinion.
In this case there were no eye-witnesses, and the injury resulted in death. The plaintiff sues as administrator of the person killed. There was some evidence of negligence on the part of the defendant, and there was some ground for an opinion that the intestate was negligent also. But the plaintiff put in such proofs of the attendant facts as were attainable under the circumstances, and from these it was by no means clear that the intestate was in fault at all. There was room for the conclusion that he was not. We think the case ought to have gone to the jury.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Cooley, J.
This is an .action brought to recover the subscription price of a local history. The subscription was obtained by an agent of the plaintiffs, and defendant signed his name tó a promise to pay ten dollars on the delivery of the book. This promise was printed in a little book, made use of for the purpose of obtaining such subscriptions, and on the opposite page, in sight of one signing, was a reference-' to “ rules to agents,” printed on the first page of the book. One of these rules was that “ no promise or statement made-by an agent which interferes with the intent of printed con-' tract shall be valid,” and patrons were warned under no circumstances to permit themselves to be persuaded into signing the subscription unless they expected to pay the price-charged. From the' evidence it appears that when Schenck, the agent, solicited his subscription the defendant was not inclined to give it, but finally told the agent he would take it provided his fees in the office of justice, then held by him, which should accrue from that time to the time of delivery of the book should be received as an equivalent. The agent assented, and defendant signed the subscription, receiving at the same time from the agent the following paper :
“Coldwater, April 29,1878.
Mr. Isaac M. Selover gives his order for one copy of our history, for which he agrees to pay on delivery all the proceeds of hisoffice as justice from now till the delivery of, said history.
Eberts & Abbott, per Schenck.”
The plaintiffs claim that the history was duly delivered, and they demand the subscription price, repudiating the undertaking of the agent to receive anything else, as beipg in excess of his authority and void. The defendant relies on that undertaking, and has brought into court $1.27 as the amount of his fees as justice for the period named. This statement of facts presents the questions at issue so far as they concern the merits.
It may be perfectly true as the plaintiffs insist, that this undertaking of the agent was in excess of his authority; that the defendant was fairly notified by the entries in the book of that fact, and that consequently the- plaintiffs were not bound by it, unless they subsequently ratified it. Unfortunately for their case, the determination that the act of the agent in giving this paper was void does not by any means settle the fact of defendant’s liability upon the subscription.
The plaintiffs’ case requires that they shall make out -a contract for the purchase of their ’book. To do this, it is essential that they show that the minds of the parties met on some distinct and definite terms. The subscription standing alone shows this, for it shows, apparently, that defendant agreed to take the book and pay therefor on delivery the sum of ten dollars. But the contemporaneous paper given back by the agent constitutes a part of the same contract, and the two must be taken and considered together. Bronson v. Green Wal. Ch. 56; Dudgeon v. Haggart 17 Mich. 275. Taking the two together it appears that the defendant never assented to any purchase except upon the terms that plaintiffs should accept his justice’s fees for the period named in full payment for the book. If this part of .the agreement is void, the whole fails to the ground, for defendant has assented to none of which this is not a part.
When plaintiffs discovered what their agent had done, two courses were open to them: to ratify his contract, or to repudiate it. If they ratified it, they must accept what he agreed to take. If they repudiated it, they must decline to deliver the book under it. But they cannot ratify so far as it favors them and repudiate so far as it does not accord with their interests. They must deal with the defendant’s undertaking as a whole, and cannot make a new contract by a selection of stipulations to which separately he has never assented.
The judgment must be affirmed with costs.
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Marston, C. J.
The declaration in this case did not sufficiently apprise the defendant of the claim made, either as to the time the work and labor were performed or the nature and character thereof, so as to show clearly that the defendant as a stockholder would be liable therefor. The defendant, having properly demanded a bill of particulars of the plaintiff’s demand, did not waive his right thereto by pleading to the declaration or noticing the case for trial. The plaintiff refusing to comply with the demand made, and insisting upon the right to a trial, the court rightly sustained the objection to the evidence offered.
There is no error in the record and the judgment must be affirmed with costs.
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Cooley, J.
This is a foreclosure suit. To a proper understanding of the issues a brief statement of the dealings between the parties seems essential.
The complainant is a member of the firm of Allan Shelden & Co., wholesale dealers in merchandise in the city of Detroit. The defendant Patience A. Bennett was in business as a retail dealer at Ovid, and commenced making purchases of said firm in 1871, her husband ~W. O. Bennett apparently acting as her general business manager. On the seventh day of October, 1872, an indebtedness had accrued from the defendant to Allan Shelden & Co. amounting to between $2000 and $3000, and on that day Mrs. Bennett deeded to complainant a farm which she owned in Yictor, and which was subject to two mortgages of $2500 each and interest. Complainant claims that this deed was given and received as collateral security for what was then owing by defendant to the firm; but she insists that the transaction was a sale by her at the price of $12,000; complainant at the same time agreeing that if he sold the farm for more than that sum, the overplus should be paid to her.
The dealings continued until November 20, 1873, on which day defendant Bennett proposing to make further purchases the mortgage now in suit was given. The property mortgaged was the store and lot where defendant Bennett did business in Ovid, and the mortgage was conditioned for the payment at maturity, of all sums the mortgager owed the firm for goods that day purchased, and all sums for goods thereafter purchased, as the same should be established by note or book account. April 30, 1874, defendant Bennett came to an. accounting with the firm, when it was found that she was owing in all $7127.80, and for this a note was taken payable one day after date, with interest. After this time some payments were made, which were endorsed upon the note, and Shelden testifies that he also gave credit for whatever he received from the farm.
Included in the note was indebtedness that accrued before the mortgage was given. • The defense gave evidence tending to show that Shelden was directed to apply all payments made after the date of the mortgage upon the indebtedness secured thereby; but Shelden denied receiving any such direction, and we cannot say that there is any preponderance of evidence in favor of this branch of defendants’ case. The complainant, on the other hand, claims a right to apply all payments on the amount owing to him before the mortgage was given. The grounds on which the circuit court gave decree are not stated in the record, but as near as we can understand them the amounts paid must have been considered as applied, by the endorsement on the note, upon the indebtedness accruing before and after the giving of the mortgage, joro rata.
The claim that the farm was bought by Allan Shelden & Co. is not sustained by tbe evidence, and is disproved by the action of defendant Bennett lierself. The farm was after-wards sold for interest accruing on the pre-existing mortgages, and was redeemed by her or by her husband ; an act not likely to have taken place if the land had been sold. Neither would the note have been given in 1874 without taking the price of the land into account had a sale been made. The farm was again sold for the principal of the mortgages, and was bid in by complainant; but no question respecting this purchase arises in this case. It may be that defendant Bennett may still have an equity of redemption, but the present suit does not bring into controversy any such right. This suit concerns only the indebtedness secured by the mortgage set out in the bill.
When complainant took a note in which he united the indebtedness which was not covered by the mortgage with that which was, and afterwards applied the payment made-to him upon the note generally, this was equivalent to an application upon the new and old indebtedness pro rata, and a different application cannot be made now. As the old indebtedness was secured when the mortgage was taken, and perhaps may be now, we cannot say with legal certainty that it was ever for the interest of the complainant that the payment should be applied differently.
It is objected that complainant should have joined his partners with him in this suit, but the mortgage was given to him as trustee for the partnership, and it was immaterial whether they were joined or not.
We find no fault with the decree. Both parties have appealed from it, and it will be affirmed without costs to either.
The other Justices concurred. | [
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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 decree of the circuit court will therefore stand affirmed but without costs.
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Campbell, J.
Case sued defendants for the price of some tobacco ordered by them as partners anjj sent to them and received at Negaunee. The defense is that he accepted the individual paper of Glocke and discharged Seass thereby, and under the charge of the court this defense prevailed.
The facts, on which there is no serious dispute, show the ' ordering and forwarding of the goods, which were shipped at Chicago, March 5, 1876, and arrived in due course. The terms of the sale as agreed upon were that the defendants should give two acceptances at 60 and 90 days. Case sent drafts for acceptance in his letter of advice.
It is claimed, and for the purposes of this case is assumed, that on the 8th or 9th of March Seass & Glocke dissolved partnership, Glocke taking the property and assuming the debts. Seass also testified that this tobacco came the next day, and that he held on himself to the tobacco until after all the correspondence between Glocke and Case was closed, and that he saw' it all as it was sent or received by Glocke. This correspondence was as follows : ,J
On March 10, Glocke wrote that he had received the stock and Case’s letter; that he had bought out Seass, and continued the business, and asked Case to send new drafts.
On the 15th Case replied that he ought to have the acceptances of Seass & Glocke, as he sold to them, and that he did not know Glocke’s ability, and was unwilling to change the basis of the agreement, giving some reasons from past experience, and asking an immediate return as he needed them. On the 19th Glocke instead of sending firm or joint acceptances, sent on his own, and in his letter said Seass had only $500 in the business, being one-fourth; that he could have got the use of his name, but supposed it was not needed, and that Seass had gone east and would not return till the next fall. He then proposed if the drafts were not satisfactory that Case should return them and he would get his father to indorse them, who was a farmer in Weyauwega, Wisconsin, and referred to Arentzberg & Sehintz, German bankers in Oshkosh.
On receiving this letter Case at once replied, stating'that as the account was a firm liability the firm acceptance should have been sent, and would have saved trouble at the bank ; that he needed the use of the paper at once and had no time to send it over the road, and closed by saying if Glocke wanted more credit an indorser might be desirable, but so far it had not been thought of and might .not be asked in future business, unless on extra occasion.
The only question in the case is whether this with the other evidence tended to show an implied agreement to accept Glocke as the only debtor. The paper went to protest and never was paid.
Seass’s testimony shows that Glocke’s letters were untrue and that he knew it. and would not let Glocke have the tobacco until the last 'letter in reply to Glocke came to hand.
These letters, instead of implying a willingness to accept Glocke as sole debtor, show just the reverse, and that his acceptances were finally received only because the tobacco was supposed to have gone into his hands as successor to the firm, and Seass was supposed to be beyond reach within any reasonable time. There can be no implication of discharge when the paper of the only debtor supposed to be within reach was forced upon Case, with no offer to return the tobacco, and ■no apparent means of enforcing any such acceptance as the contract called for.
We are also of opinion that had there been room for any such implication, the barefaced and deliberate fraud of Seass & Glocke would have rendered it nugatory, and in this Seass himself made a clear case for plaintiff, which was conclusive evidence and open to no explanation.
We think the judgment should be reversed .with costs and a new trial granted.
The other Justices concurred. | [
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Graves, J.
Error is here alleged upon a judgment of the Superior Court of the city of Detroit, purporting to have been given on a confession by an attorney-at-law made under a warrant-of attorney executed by the plaintiff in error. The cause of action was two notes made by Elliott, at Detroit, September 20, 1878, and the warrant of attorney was given at the same time. It authorized the entry of judgment at any time after the 24th of September, and the confession was executed and the judgment entered on the 25th. Hence the making of the notes, the execution of the warrant of attorney and the confession and judgment were all within five days. It is now contended that there is apparent error because the record does not show affirmatively that thb warrant of attorney was proved before judgment was taken.
The statute calls for no such proof (Comp. L. § 6078), and it seems to be the established practice not to require it unless a year and a day shall have elapsed subsequent to the warrant: Manufacturers’ etc. Bank of Philadelphia v. St. John 5 Hill 497 and cases; 2 Burrill’s Pr. 241, et seq. It is probable the courts would use a wise discretion if they required it generally, but the failure to exact it where the time is not above a year and a day is not error. The warrant of attorney was sufficient to authorize proceeding in the Superior Court, and we have no doubt of the competency of that court to entertain the proceeding, under the appeal made to its jurisdiction.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
In this case King sued Bryce in ejectment for a small parcel of land called in the declai’ation about a foot wide, and claimed to lie between the line of land owned by Bryce, and a lot lying west of it; It appears, if there is any such space, that it once formed part of a lot which Bryce held under lease and afterwards purchased, that extended beyond the 42 feet in width which was the measure of the lot he now owns. IJpon the testimony it appeared that in 1855 lie took a lease till 185S; and that in 1857 he got a further three-year lease running from April, 1858, with a provision whereby the lessor was to purchase and to pay for his buildings. After this second lease was granted, but during the continuance of the first term, on the 14th of July, 1857, the lessor conveyed to Peter and John P. Sanborn, who, during the same month, on the 23d, conveyed to him 42 feet in width. If there was any excess over this, Bryce does not claim to own it. In 1876, the Sanborns quit-claimed this ■ narrow strip to the plaintiff below.
Tire deeds all refer to two streets, Walter and Military streets in Port Huron, as the starting point, where they intersect. The excess is claimed by Bryce to be due to the uncertainty of the former location of these streets.
The court below directed the jury to find a verdict for one and two-tenths feet of land.
We think there were several facts on which the case should have gone to the jury. The testimony concerning not only the width but also the shape of the gore, if there is one, presents difficulties. The streets are said by some testimony to make an angle of ten degrees, varying from a right angle, and a strip one foot or fourteen inches wide in front would come to a point before it reached any considerable distance back. A little change in street lines would close up the whole premises. Moreover Bryce testified he never set up any claim beyond his own lot, and if so, there was no cause of action against him, if there was nothing to prevent plaintiff below from taking possession. The fact of possession was not admitted. And if there was possession it was open to the claim that it was a tenancy under a rightful entry by lease, which had never been terminated by notice.
It is enough that there were facts which the court could not decide instead of the jury.
The judgment must be reversed with costs and a new trial granted.
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Campbell, J.
This is a motion for a mandamus to require the entry of an order vacating a judgment by default for want of due process.
On the 25th of June, 1873, a declaration was filed in the Detroit Superior Court, and rule to plead within ten days entered, and a copy of the declaration and of this rule was duly served. Default was taken July 10th and judgment was finally entered on August 11, 1873.
On September 22, 1880, a motion was made to vacate this judgment and refused.
This application is made upon the idea that in Wyandotte Rolling Mills Co. v. Robinson 34 Mich. 433, this court intended to hold judgments obtained under the ten-day rule to plead absolutely void.
That decision was on error, and the entry of such a judgment was held erroneoiis. But there is no intimation in that case that the judgment is void. Although the commencement of suit by declaration and service of notice of rule to plead is statutory, and must conform to the statute, yet there is no reason, for putting it on any different footing from other process. Either by rule or statute, or by recognized practice, some time has always been required to intervene between the service or return of a writ and the time fixed for appearance'; and sometimes a writ is required to run a certain length of time. It would not be competent to enter a default on process which in form or in service did not allow the requisite time to the defendant. And in other cases notice is often required to run for a certain 'period. But it 'has not „ been held that where there has been an actual personal service of such writ or notice, proceedings under it are nullities. 1 Tidd’s Pr. 152-160-161-162 and notes. The reason is plain enough. The party having been legally served within the jurisdiction is .personally informed that proceedings will be urged against him. He has a right to expect that in due time the plaintiff will discover the error and take steps to rectify it. If this is not done, he has a right to the common law remedies for the correction of errors and may, until those are lost by lapse of time, resort to them to have relief against the erroneous action. But it is not settled and would be unjust to allow a party to attack such proceedings collaterally after long lapse of time, when the plaintiff has lost any other remedy, and thus avoid what was probably a just liability. If he does not see fit to sue out a writ of error, when he knows where the proceedings are pending and has had full opportunity to examine into the action of the court, he should not in fairness be allowed the advantage of what is a merely formal objection, and we do not think the authorities cited sustain any view to the contrary.
"Where cases and proceedings are not according to the usual course, and are special in their character, they are held void on slighter grounds than regular suits, because the courts have not the same power over their records to correct them. So where there has been no personal service within the jurisdiction, the doctrine prevails that proceedings not conforming to the statutes are void. But this is on the ground that there has been no service whatever, and the party therefore has not been notified in any proper way of anything. The purpose of the statutory methods is to furnish means from which notice may possibly or probably be obtained. But as a court acting outside of its jurisdiction is not recognized as entitled to obedience, the special statutory methods stand entirely on their own regularity, and if not regular cannot be said to have been conducted under the statutes. The distinction is obvious, and is not imaginary. '
Here there was proper notice of a pending suit, the only defect being the fixing of too short a time for appearance.
While the defendant sued had a right to insist on proper adherence to the rules governing such cases, he should have brought error when he found the plaintiff expected to enforce his judgment. If this had been a notice after the party had been regularly served and the suit fairly in progress, the authorities are uniform that the defect would be waived entirely unless seasonably complained of. There is no hardship in the rule which requires in such a notice as the present resort to some recognized method to correct the error, instead of treating it as fatal for all purposes.
The motion must be denied. As the proceedings seem to have been brought at the desire of the judge no costs will be awarded.
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Marston, C. J.
We are of opinion that the information filed in this case was not fatally defective within the ruling of Enders v. The People 20 Mich. 240. In this case the false pretenses are fully set forth, and the information shows an assignment of the mortgage direct to the parties injured, and alleges that by means of said false pretenses Cline and Ellis obtained from Winsor and Carrington, in exchange for said paper writings, the goods, etc. The information in other respects contains the usual formal allegations. It is thus, we think, sufficiently alleged, and appears from the allegations, that the false representations were made to induce Winsor and Carrington to purchase the mortgage referred to, and that in reliance upon the statements and representations made they did purchase the same and parted with their property therefor. It is, we think, clear that they relied upon the statements and representations made, and parted with their property upon the strength thereof. and of the assignment, or what purported to be the assignment to them of the mortgage. It is also urged that there was no evidence in the case tending to show that any of the representations alleged were made by defendant Ellis, and that he was therefore entitled to an acquittal.
If it appeared by the bill of exceptions that all the evidence tending to show Ellis’ connection with the matter was set forth therein, the view taken would be correct. We cannot go outside of the bill of exceptions and examine the printed testimony in order to ascertain what the facts were, as the evidence is not made a part of the bill.
It does not appear that Ellis was present at the time the false representations were made, and the trade consummated, or that he had any knowledge thereof, or that such was the design or intention of respondents in preparing these papers— if they did — if that would be sufficient. The fact that he was present afterwards, when Cline received a part of the consideration, and that Cline gave Ellis a part thereof, would not be sufficient, even if Ellis then had full knowledge of the representations made by Cline, which does not appear. The evidence set forth in the bill of exceptions clearly tends to show, at least in some parts, whether complete of not we need not now determine, that an offense was jointly committed by these respondents but not the one alleged and for which they were tried.
We must therefore assume that other and necessary evidence was given to connect Ellis with the representations made. If there was not, he would be entitled to his discharge.
Charles Flowers, an expert in handwriting, was examined. He compared the signatures to the assignment and the indorsement on the note with the writing in the body of the mortgage, and compared the signatures of James H. Warner to the assignment, and the indorsement of James H. Warner on the note, with the writing in the body of the mortgage, and testified that all were in the same handwriting. Similar testimony as to the other signatures was given by this witness, and also that the signatures appeared like forged hands.
"What tendency this evidence had to connect the respondents with the transaction we are not advised. It is true these papers were in evidence, hut we do not understand that any part of the same was admitted, or appeared beyond dispute to have been the handwriting of either of the respondents, so that the same could be taken as a basis for comparison. Admitting the fact that these instruments and the ■signatures thereto were in the handwriting of one or two persons, would not necessarily tend to connect the respondents therewith. Proof that the body of the instrument and signatures were in the same handwriting would be a link in the ■chain, which, with farther evidence to connect the respondents, one or both, therewith, would become material. It could not however be argued or inferred that the signature was written by the respondent, because it resembled the handwriting in the body of the instrument, unless it appeared that the handwriting in the body was actually his. The mere fact alone that the paper was already in evidence upon some other branch of the case, would not be sufficient to connect the respondents with the execution thereof.
A question was raised as to the sufficiency of the proof that one Beeson did not sign the mortgage. It was shown that Cline had represented that Beeson, the purported mortgagor, “ lived somewhere in the central part of the State,” and evidence was introduced “tending to show that Strother M. Beeson (the name of the mortgagor) formerly lived at Niles, and died December 30th, 1$78, and that the signature to the note and mortgage was not his.” If it was necessary to^prove that the person whose name purported to he signed as mortgagor did not in fact sign the same, it could only be upon the assumption that he was the owner of the land, or possibly that a particular person of that name had been represented as owner and the person who sigued. Neither appears to have been shown in this case. There was the representation that Strother M, Beeson “ lived somewhere in the central part of the State,” and that he (Cline) knew Beeson had made the mortgage. There must be very great difference in the weight of testimony upon the question of identity, based upon the identity of names and residence only. Some names are very common, and where the residence is fixed in a city or old-settled portion of the country, without any distinct place of residence being pointed out, or some other means of identification, the proof would be too uncertain where the liberty of a citizen was at stake.
We are also of the opinion that the prosecuting attorney was disqualified from conducting the prosecution in this case. It distinctly appeared that the complaining witness was a brother of the prosecuting attorney. He testified “ that he arranged with the prosecuting attorney to discount the mort? gage in question at the usual rates, and arranged with Gline that one-half the discount be charged to Cline, one-half to Winsor& Co., the complainants; * * * that he obtained from the prosecuting attorney’s firm three hundred and thirty-five dollars at the time by checks.” It farther appeared that the money belonged to one Carrington, for whom the firm was doing business. The prosecuting attorney was therefore distinctly interested in the result, and unable to attend the case, within the meaning of Comp. L. § 534. See also Meister v. People 31 Mich. 101; Sneed v. People 38 Mich. 251; Ulrich v. People 39 Mich. 249.
We are of opinion that the respondents are entitled to a new trial, and it will be certified to the court below accordingly.
Graves and Cooley, JX, concurred.
Campbell, J. I concur in the result. | [
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Marston, C. J.
William H. Van Horn had been acting as agent of the Watertown Insurance Company for sometime previous and up to the 1st day of March, 1878. There was then a balance due the company ijpr uncollected premiums, of upwards of $400. About March 1st Perkins & Van Horn were duly appointed agents of the company, and gave a bond for the faithful performance of their duty, signed by plaintiff in error Ball as surety. June 1st, 1878, Perkins & Van Horn gave their firm note to the insurance company for $473.77 “to balance their account as it stood April 1st, 1878.” This action is brought to recover upon their bond the amount due upon this note. It was claimed, and evidence was given tending to show, that Perkins & Van Horn had, for a consideration, agreed to and did assume the balance due the company at the expiration of Van Horn’s agency.
There is one portion of the charge of the court which points out so clearly the duty of the jury that I here include it:
“ I am clearly of the opinion that if there had been no premiums coming from the old business, but the premiums had all been collected, and there was nothing left of the old business excepting the debts which Van Horn should have paid, he having collected all the money and put it in his pocket, that then the surety could not be held for any of such liability, even though they have a note for it, given as'against the surety, that ought certainly to be treated as an accommodation note; but if this firm, as a firm, have collected to a considerable amount, or any amount, of debts which belong to the company from the old business, I cannot see any reason why the bond should not cover them.”
The material question in the case is whether the bond covers moneys so collected by the new firm on policies issued by Van Horn.
The bond was conditioned that Perkins ,& Van Horn should, among other things, “pay and deliver over to said company all moneys, record books, papers, or other property, belonging to said company,” which should come into their hands as agents of the company.
As the court charged the jury, Perkins & Yan Horn, by assuming the amount due the company at the expiration of Yan Horn’s agency, could not thereby charge their surety. If however they collected such balance, or any part thereof, in my opinion the bond given would cover the amount so collected, and their surety would be responsible therefor.
Uncollected premiums belonged to the company, and not to the agent who issued the policy. That such premiums could become the property of the agent under -certain circumstances, we do not question, but no such circumstances exist in the present case. It does not appear that Yan Horn’s agency was continued after March 1st for the purpose of collecting premiums or policies theretofore issued, and that the firm of Perkins & Yan Horn had authority to collect the same in virtue of their agency there can be no question. Such premiums were collected by the firm in the regular course of their duties, and when collected the same constituted moneys in their hands belonging to the company, and which they could not lawfully appropriate to their own use. The bond was not restricted to moneys coming into the agent’s hands from policies issued by them after their appointment. The company might, independently of them, have issued policies, and directed them to collect the amount thereof, and if collected by them within their district, their bond would cover the same. So, had the company cancelled one of the policies issued by Yan Horn and remitted to these agents the unearned premium to return the assured, for an appropriation thereof to their own use their bonds would cover the same.
I am of opinion that the charge of the court was correct and that tbe judgment should be affirmed. Each party having sued out writs of error and each failed, no costs will be awarded either party. Costs if allowed would be about the same to each.
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Campbell, J.
Defendants in error, who are attorneys, . sued plaintiff in error for a balance of charges in a justice’s court, and recovered judgment for $40 damages and for costs. They appealed to the circuit court of the county of Kent, where the case was tried by jury, and the judgment increased to $94.90, of which they released $1.50. There was, we think, admissible evidence upon all the larger items, and all but one of the rest.
The principal items disputed were two eharges amounting to $75, for extending a mortgage belonging to one of their clients, on two occasions — once for one year, and once for three years. This was a mortgage against Graham for $500, on which he paid them a commission at the time he borrowed the money, of $25.
According to the testimony of the member of the firm who made the arrangements, Mr. Graham did not employ them to negotiate with their client on his behalf, but the extension was made by the attorneys assuming to act for the client and by his authority or subsequent ratification. It was therefore, if binding at all, an agreement with the mortgagee, and not with plaintiffs. Whether he could himself malean agreement for time not in writing and making the use of his money reach more than ten per cent, is not important here, because he was not sued for it and the attorneys claim it themselves. We think it is not legally competent that an agent shall make an agreement entirely on his principal’s behalf, yet entirely for his own benefit. Such an agreement has no consideration. The price, if payable at all, must belong to the person who makes the contract, and he only can sue for it.
The judgment must be reversed with costs and a new trial granted.
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Cooley, J.
Putnam filed a bill in equity to foreclose a chattel mortgage given to him by the defendant Reynolds, and-which bore date April 9, 1879. It covered a stock of goods, and was given to secure a debt of $500. Permission was given to the mortgagor in it to remove the goods from Grand Eapids, where they were when the mortgage was given, to Stanton in Montcalm county, and the mortgagee •availed himself of this condition and made sale of the goods from time to time in the usual course of retail trade. Meantime the mortgage was not filed in the office of the city dark of Grand Eapids, or in the proper office at Stanton, and by reason thereof, it became, bj' the express terms of the statute (Comp. L. § 4706), “absolutely void as against the creditors of the mortgagor.” Fearey v. Cummings 41 Mich. 376. July 7, 1876, Eeynolds having become insolvent, made a general assignment for the benefit of his creditors to the defendant Fitzgerald, who had no knowledge of the mortgage, and the assignee took possession and proceeded to make sale of the goods in execution of his trust under the assignment. Two days thereafter Putnam filed his mortgage at Stanton, and a little later still at Grand Eapids, and demanded possession of the goods, which Fitzgerald refused to give. After such demand and refusal the present bill was filed.
It is insisted on behalf of complainant that his mortgage, notwithstanding the failure to file it, was perfectly good as against the mortgagor, and that the latter could not, by a voluntary assignment, transfer a right to assail it which he did not himself possess. The assignee is not a purchaser for value, and not a creditor; and even creditors, it is said, cannot attack the mortgage except indirectly through a seizure of the property by attachment or other suitable process. This is doubtless true where the invalidity of the mortgage arises from the fraud of the mortgagor, but whether the same rule will apply when the mortgage was originally valid, but is made void by the neglect of the mortgagee, may well be questioned. It would be easy to suggest weighty considerations arising in such cases, but not existing in the case of a fraudulent mortgage, and which it might well be thought should control. But we do not think the question fairly arises in this ease.
As matter of law the mortgage of complainant was void as to the mortgagor’s creditors, and it was made void for the reason that the conduct of the mortgagee, even when he had no such purpose in view, tended to defraud them. If the mortgage was purposely left off the record, it was an act of bad faith, which might justify its being declared void in fact irrespective of the statute (Shipman v. Seymour 40 Mich. 274); and there is reason to believe that such was the fact here, and that it was done to give the mortgagor a credit to which he was not entitled. But whether the mortgage was void in fact as against creditors, or merely void in law, it is plain that the mortgagee cannot have a shadow of equity to enforce it as against a trustee for the creditors who is proceeding to dispose of the property in good faith for their benefit. If any strict and harsh rule of the common law will enable the mortgagee to defeat the just claims of the creditors under the circumstances, he may be at liberty to take advantage. of it, and on the other hand the assignee may rightfully hold any legal advantage he may have obtained. But whatever may be the case at law, a complainant in equity must have a better standing than a security which the statute, because of his own treatment of it, has declared to be void as against the very parties from whom he seeks to withdraw property by its enforcement. The maxim applies here that a.tortious act can never be the foundation of an equitable right: McCredie v. Buxton 31 Mich. 383, 388.
The decree must be reversed and the bill dismissed with costs of both courts. The defendant Fitzgerald will be at liberty to withdraw from court the proceeds of assigned property paid in by him.
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Graves, J.
This writ of error is taken to reverse a judgment by default in the Superior Court of Detroit, and the only question to be noticed is whether the evidence of service of the declaration, which was before the court, was such as would authorize the court to find that the service was effected in the city, and we think it was. The sheriff stated in his certificate that on the 10th day of August, 1878, he served the declaration “ on Edward A. Elliott in the city of Detroit, the defendant named in said declaration, by delivering to him in said county of Wayne, a true cojiy thereof.” The certificate is not very well expressed, and the probability is that a blank form, prepared for the service of papers issued by the circuit court, was made use of, and that the infelicity of style was brought about in that way. Still, the service in the city is stated positively, and the reference to the county in the passage in which the mode is explained, is perfectly consistent. If the delivery of the copy took place in the city, it was in the county. There is no contradiction, and there can be no intendment against the proceeding. So far as there was informality it was not prejudicial, and the judgment cannot be disturbed on writ of error. Comp. L. § 6051, subd. 18.
The judgment must be affirmed with costs.
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Marston, C. J.
Middlesworth brought this action against Hunt to recover a balance due upon a judgment recovered in one of the circuit courts of the State of Indiana. The defendant in the present action pleaded the general issue and •gave notice of set-off.
I. Counsel for defendant objected to the introduction in •evidence of the Indiana judgment record, because it showed no judgment for costs and thus varied-from the declaration. The latter averred the recovery of a judgment for a certain sum “ and also the sum of $42.60 adjudged to said plaintiff,” etc. The record showed a judgment for the sum named in favor of the plaintiff therein, “besides his costs and charges herein expended.” It appeared from other parts of the record that the costs had been in some way, but how did not appear, fixed at the sum mentioned in the declaration.
We are of opinion that in this there was no variance that could be considered fatal. In this State the judgment would not usually fix the amount of the costs, although entitling the successful party to costs. And when the amount thereof should afterwards be determined by the proper officer, such act would relate back and make the amount so fixed a part of the judgment, and might be referred to as having been recovered therein. This is the legal effect of the judgment and subsequent proceedings, and although it does not appear what officer taxed the costs, yet we cannot presume the proceedings in fixing the amount were irregular or illegal.
II. The offer by defendant to show how the mill property purchased in 1872 was paid for, was wholly immaterial. The judgment obtained in 1876 rendered that question of no sort of importance in this issue.
III. The offer made by defendant to show the conveyance by plaintiff to him of the mill property was rejected, and this is assigned as error.
This mill property had been conveyed by Hunt to Middles-worth in 1872, for a consideration of seven thousand dollars. In part payment thereof Middlesworth conveyed to Hunt certain hotel property at an agreed price of $3000, and gave his notes, secured by mortgage upon the mill property, for the balance less the valne of certain personal property. He afterwards gave a second mortgage upon the mill property. • Being unable to meet these mortgages at maturity, Middles-worth reconveyed the mill property to Hunt, the latter retaining Middlesworth’s notes thus secured by mortgages, upon an oral agreement that either should be at liberty to find a purchaser for such property, and that when sold, Hunt, out of the proceeds thereof, should deduct and retain the amount.owing him upon such mortgage indebtedness, and pay over the balance, if any, to Middlesworth. The mill property was sold and the action brought by Middlesworth in the Indiana court was to recover the amount going to him under that agreement. In that action the plaintiff set forth. clearly and specifically the facts, and alleged that the conveyance by him of the mill property to Hunt was intended as a mortgage. This was denied by the defendant, who claimed that at the time of such conveyance the notes which he held were surrendered up to the grantor and that such conveyance was made in satisfaction of, and to prevent, a foreclosure of the mortgages. The jury found a verdict in favor of the plaintiff in that case, and, in answer to questions submitted to them, found the plaintiff's version to be correct and that defendant’s theory was not true.
It has been argued in this case that it was wholly unnecessary in the Indiana case to decide what the effect of the verbal agreement was upon the deed, but we do not think so. The issue seems to have been fairly raised in that case and the plaintiff’s right to a recovery to depend upon the fact that such conveyance was intended as a mortgage only. The offer of such deed in this case was to show that the grantee was entitled to certain wheat then growing upon the land, and also to the rent of the mill from the date of the conveyance to the time of the sale, the grantor having remained in possession during such interval.
The offer was properly rejected. It had been judicially determined that the conveyance in question was but a mortgage and that the mortgagee had received thereunder the full amount of his mortgage debts, and when he had once received this amount he could not thereafter claim anything farther. If he was entitled to the rents and’ profits he should have made that claim in the other case, but in no event can we see any ground upon which he can now claim the same.
IY. It is next claimed that the hotel property was not owned in fee-simple by Middlesworth at the time he conveyed it to Hunt; that the title was afterwards in an action of ejectment adjudged defective, and that the value thereof or consideration paid therefor — $3000—should be allowed as an offset in this ease.
To this there are serious objections. The hotel property was conveyed by warranty deed in 1872 and the grantee took possession. In 1876 Truman Hunt, the grantee, conveyed this property by quit-claim deed to his son Seth Hunt. In the ejectment suit to recover this property Seth Hunt was a party defendant and judgment was rendered against him therefor in 1878.
Truman Hunt having conveyed by quit-claim, was not liable to his grantee. The latter, if any one, had a remedy upon the covenants in the deed from Middlesworth to Truman Hunt, so that at the time this action was commenced Truman Hunt had no claim against his grantor growing out of the conveyance of that property, and the surrender from Seth Hunt, during the trial, could not change the rights of the parties in this action. In the next place both Truman Hunt and his grantee had been in possession of this hotel property for a series' of years. They had derived some benefit from the conveyance, so that it would not necessarily follow that the agreed consideration therefor would in an action for a breach of covenant be the measure of damages. In such an action the damages would be unliquidated, and such damages cannot be the subject of a set-off.
We are of opinion that the judgment must be affirmed with costs.
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Graves, J.
January 7, 1880, the plaintiffs caused a summons to be issued from the Superior Court of. Detroit in their favor against Bates. At the same time they obtained a garnishee summons against Bourke and caused it to be served immediately. February 2d the garnishee made disclosure and admitted an indebtedness to Bates of $100. The first summons expired without any service on Bates, and on the 15th of March an alias summons was sued out, returnable June 1st. March 25th the court ordered the plaintiffs to show cause on the 27th why Bourke should not be discharged and allowed his fees as a witness and $15 for counsel. The motion was regularly heard, and the court on the 6th of April ordered Bourke’s discharge and that he be allowed his fees as a witness and an attorney fee of $15.
Bates, the principal defendant, has never been served or made amenable in any way to the action, and there is nothing to create an inference that his subjection to the jurisdiction is practicable. The plaintiffs have brought error on the order discharging Bourke. No exceptions have been settled, and the case presents the bare record only.
The affidavits relating to the motion are no part of the record, and cannot be regarded. The order complained of was a discretionary proceeding to relieve the garnishee for want of prosecution, and it is not possible to say, on what is legitimately before the court, that the discretion was abused; and were all the papers entitled to consideration, it is not perceived that a different conclusion would be authorized. It cannot be maintained that a party by literal adherence to the forms of law can keep the hands of a garnishee tied indefinitely, and such would be the case if he were allowed to perpetuate his hold by simply taking out process after process against the principal defendant without getting service upon him, or by some other means securing his subjection to the action. The court in which the proceedings are carried on. must certainly be empowered to conduct an inquiry in cases where extraordinary delay in bringing in the principal defendant is shown, and thereupon to discharge the garnishee with lawful costs if ¿t is made to appear that the retention of the proceeding against him is un just and in substance and effect an abuse of the process of the court.
No error is shown, and the judgment is affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
This is a proceeding instituted to set aside the action of the respondent as township drain commissioner of Essex in Clinton county, and of the jury summoned by him, in laying out a township drain, tailing land for the purpose, •and assessing the costs. All the errors assigned relate to the finding of the jury and the previous proceedings, arid with the exception of those which relate to the giving of notice to the parties concerned and the filing of proof thereof, are somewhat technical. It appears from the return'that plaintiff in certiorari had actual notice and took part in the proceedings before and at the time when the jury was struck, and there is no reason to suppose he has been taken by surprise in any of the proceedings. We are not inclined to reverse such proceedings except for very substantial faults, and the present case, in our opinion, does not call for our intervention.
The writ of certiorari will be quashed.
The other Justices concurred. | [
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Campbell, J.
In this case which was commenced before a justice by warrant, the justice rendered a judgment, after four days’ adjournment from the hearing, in favor of defendant. Plaintiff appealed, and the circuit court of Shiawassee county dismissed the appeal on the ground that the defendant was in custody at the time of hearing, and that the justice was bound to render judgment at once, and lost jurisdiction by the adjournment. Comp. L., § 5380.
Assuming it to be true — which we do not now feel warranted in holding without further consideration — that if the. defendant had been in actual custody at the hearing the delay in judgment would have prevented an appeal, we do not think it appears he was in such custody, and as no return was procured from the justice to show how the fact was, it is too late now to assume anything not appearing in derogation of the justice’s action. It cannot be assumed the justice exceeded his jurisdiction, where he gave judgment within the time proper in ordinary cases. If he -did, there should have been an application to compel a further return.
The record shows that the suit was begun by warrant under which defendant was brought into court November 17, 1879. The cause was adjourned by consent after pleading, until November 21. On that day a written stipulation was made, signed by the attorneys of both parties, which provided that the cause “ is hereby adjourned to November 25th, A. D. 1879, at 10 o’clock a. m., without the appearance of either party, at which time it is hereby agreed that the case shall be tried.” The return shows the parties appeared at the hearing by attorney. It is fairly to be presumed there was no personal appearance, and if so the rule as to the course to be taken on defendants being in custody could hardly apply, unless in some manner the fact was brought to the attention of the justice. It does not appear that any one objected to the adjournment.
We think therefore that the appeal was valid and should not have been dismissed. '
The judgment of dismissal must be reversed with costs and the cause remanded for hearing.
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Cooley, J.
Ewing & Chamberlain were sued as partners for the price of apples which Jackson claimed to have sold them. There was no dispute respecting the sale, but Chamberlain claimed that the purchase was made by Ewing alone. The questions raised by the record all relate to the evidence given to show the alleged partnership, and whether any of •such evidence legally tended to prove the fact.
We discover no error in any of the rulings in the reception of evidence, and we are entirely satisfied that the court was right in leaving the case to the jury. Nothing remains but to affirm the judgment with costs.
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Campbell, J.
This controversy has already been before us, as reported in 41 Mich. 376, in which the present defendants were plaintiffs. There is very little in the present record which was not in the former one, and most of the questions now presented are of minor importance. One legal question, however, stands at the threshold of the case, on which some doubts have arisen.
By § 6504 of the Compiled Laws of 1871 it is declared that “every garnishee shall be allowed to deduct from the property in his hands all his demand against the principal defendant, of which he could have availed himself if he had not been garnished, whether by set-off at the trial or upon execution, and shall be liable for the balance only after adjustment of mutual demands.” This, it is insisted, exempts the garnishees in the present case from responsibility, because it is conceded they got no more property than would have paid their debt.
It has been found in the present case, as a necessary result of the verdict, that plaintiffs in error got possession of the fund in controversy under a chattel mortgage which, though good as between the parties, was a fraud upon the defendants in error. Upon its illegal character there is no room for dispute. It and its predecessors had been kept from record intentionally, and the mortgagor had been enabled to keep up his credit and obtain goods from other creditors, who were deceived as to his standing, under a continued course of concealment.
By § 6498, as mentioned in our former decision, it is provided that a garnishee may be held for property conveyed to him in fraud of creditors, even though the conveyance is valid against the principal debtor himself.
We think this provision must be construed with the other, and that § 6504, which allows a garnishee to retain property enough to satisfy his demand, only refers to property which he has received rightfully, and which his debtor would own and could recover from him if there had been no garnishment. As against the garnishing creditor, the garnishee holding under fraud is a wrong-doer, and his possession is not a rightful possession. By any other construction, a mortgagee holding by fraud is in as good a condition as an honest mortgagee. The law does not vitiate his mortgage merely when there is no consideration. The defect is that, although there may be a full consideration, yet it has been used to injure and deceive other creditors. We do not think the entire garnishee statute, especially when coupled with the statute against frauds, will allow tlie construction claimed by plaintiffs in error for § 6504.
Upon the several questions of evidence on which errors are alleged, we think the court was justified in admitting testimony concerning the antecedents of the dealings between Nellis and plaintiffs in error, and their agents, as well as concerning the transactions from first to last regarding the property and its disposal. ¥e have found nothing that can be deemed impertinent.
We also think that parties dealing in such a manner as to defraud creditors, and having no preference by legal proceedings, cannot go behind the judgments recovered against Nellis to inquire into the dates on which debts matured. If they had been creditors having liens under legal process, on which they sought priority, a question would be presented which is not presented here. We think that on the testimony as submitted to the jury the instructions concerning the nature and validity of their holding and. disposal of the property were presented fairly and justly, and that there are no errors in any of those instructions. If there was any testimony authorizing a claim that they did not act in pursuance of their mortgage interests, it was left to the jury. We do not feel sure that there was much room for such an assertion..
It is not material, in our opinion, whether defendants in error could have replevied the last shipments of goods. They have not done so, and if they choose to look to these garnishees for these as goods of Nellis, they may lose other rights by doing so, but the garnishees cannot repudiate the ownership which they have asserted by seizing them.
The judgment must be affirmed with costs.
Marston, C. J. and Cooley, J. concurred. | [
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Cooley, J.
This is a bill by executors of a deceased partner against the surviving partners for an accounting,. It appears that on the death of complainant’s testator the surviving partners took possession of the assets of the concern, amounting to a large sum, and for a time continued the business. When the bill was filed the assets were represented by charges on the books against the surviving partners severally. The sums brought together were much below the amount of the assets that came to their hands as survivors. The court of chancery decreed that they severally pay to complainants the amounts found equitably due from each to the testator, being $12,781.60 by defendant Toumans and $4,493.83 by defendant Van Winkle.
This decree should have been against the defendants jointly. ' ITad the indebtedness of defendants to the copartnership existed at the time of the testator’s decease, the case would have been different, because the testator must be understood to have consented, with the others, to the partners thus severally becoming debtors of the firm. But the partnership was dissolved by the decease of one member, and the survivors took the assets jointly. Both are therefore responsible for the disposition made of them. They cannot, by dividing the assets between them, compel the estate to accept the several responsibility of each for what he has taken.
The .justice of certain charges against the copartnership for moneys borrowed by the testator was contested by defendants, on the ground that the loans were procured in part only for the copartnership, and in part for other concerns in which the testator had an interest. The commissioner, however, allowed them, and he also allowed the discount paid, and interest. The circuit judge struck out these last items while allowing the principal sum. We have found no explanation of this discrimination and think the rejection of discount and interest expenses erroneous.
The defendants have not appealed, but they nevertheless in this court raise many objections to the decree. Some of these are to the indefinite character of the allegations in the bill.; others to the regularity of the proceedings before the commissioner, and o.ne is to the failure of the commissioner „to comply with the order of reference in respect to one item. in complainant’s account against the copartnership. None of these objections appear by the decree to have been brought to the attention of the circuit judge, and it is therefore useless to raise them here. They relate exclusively to the details of practice. Barnebee v. Beckley 43 Mich. 613. Moreover as defendants have not appealed, they cannot ask the court to modify the decree in their favor. If the complainants by their appeal had opened the accounting generally, and we had changed it in their favor, we should have held ourselves bound to listen to any objections the defendants might make to it; but we have discovered no reasons in the argument or brief of complainants for going into it at all. The report of the commissioner, so far as it is excepted to by the complainants, appears to be sustained by the evidence, and the circuit judge approved and confirmed it. The modification of the decree in this court, in respect to the amount allowed, relates only to the contested loans, and corrects an error in the amount which was made by the.court in rejecting the discount and interest. These belonged inseparably to the principal sum.
The decree must be modified to meet these views, and complainants will recover the costs of this court.
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Campbell, J.
In this case plaintiffs sued out an attachment against defendants on-the ground that they had disposed of and concealed their property 'with intent to defraud creditors. On a motion to dissolve, which was founded on a sufficient application, plaintiffs went into testimony at length of the contract on which they sued, and its supposed breach. It was a contract whereby defendants agreed to sell plaintiffs their crop to be raised, within certain limits of quantity, of potatoes and onions. The potatoes were to be raised on upland, and no point was made as to their non-delivery. The onions were to be raised two acres of one kind, and one of .another, and there was no stipulation as to where they should be raised. Neither did the contract forbid defendants raising more potatoes or onions than those to be sold to defendants. It was expressly agreed to the contrary. Plaintiffs were not willing to accept so much as could be gathered from three acres of onions which defendants offered to deliver them, and insisted on the deficiency being made up from onions grown on other parts of the defendants’ lands.
There was no evidence whatever given or offered of any fraud or concealment, unless the refusal to comply with plaintiffs’ demands could be so regarded. The commissioner dissolved the attachment, and was of opinion that there had been no breach of contract, and that defendants were in the right. This finding, whether correct or not, on the construction of the contract, was certainly a finding that defendants had designed no wrong, and negatived fraud. There was evidence which he had a right to act upon in reaching such a result; and the burden of proof was on the plaintiffs to show fraud, which cannot be inferred from a mere breach of the contract. The specific fraud on which the affidavit for attachment was made was not in any way sought to be made out by any testimony. There was no finding, therefore, by the commissioner, which we can review, that would justify us in disturbing his conclusions; and it is not very clear to us how he could have done otherwise.
The order must fie affirmed with costs.
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Campbell, J.
Plaintiff brought ejectment for certain lands in Shiawassee county, which belonged to James Wads-worth, of Livingston county, New York, and were devised by Ms last will to various persons, from whom plaintiff derives title. These devises were partly in trust, and partly directly, in the same proportions and for the same beneficiaries as would have taken the property by descent. The testator died in 1S44, and this will was proved the same year in New York, but was not proved in Michigan until after this action was brought.
The only question argued before us was whether, before probate, ejectment could be brought by devisees or by those to whom their rights had been previously transferred. The general direction given by the court below to find a verdict for the defendant must have been given under misapprehension, as title was made out which would have been valid without a will, to a large share of the estate. But this seems to have escaped the notice of all parties, and is not material as the case stands.
There has never been any question of the right of a devisee to take his estate as of the death of the testator, and our statutes confine descents, and did when this testator died, to property which is not devised. Rev. Stat. 1838 p. 267. That this is so for all purposes, except as otherwise provided by statute, is not doubted. But it is claimed that the declaration of sec. 30 p. 275, Rev. Stat. 1838 (which is substantially the same as in subsequent revisions), that “ no will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the probate court,” makes every devise take effect from probate and not earlier, and if not for other purposes, does so for purposes of bringing action.
As probate was always necessary to enable one to make proof of title of personalty, this statute cannot certainly impose any greater restrictions on realty than existed before on personalty.
There were undoubtedly some technical rules of common-law pleading which required an executor to make proferí of his letters in pleading. But for any other purpose the decisions are uniform that probate merely furnished the means of establishing by a peculiar kind of record-evidence the validity of an existing right; and that for every valuable purpose touching the existence and transfer of title the' probate was retroactive, and had the same effect as if it had been had at the time of the testator’s death. And so far as the statutes have been applied to devises, there is no material difference. Upon so familiar a rule it would not be profitable to multiply authorities, and a few illustrations will suffice as to the condition of things before probate. ,
The executor may release a cause of action. Co. Lit. 292 b. He may sell goods. Mayor of Norwich v. Johnson 3 Mod. 92. He may enter on a term and the entry be good though he die before probate. 3 Dyer 367. He may sell a term of years, though he die before probate, and the sale will stand. Brazier v. Hudson 8 Simons 67.
In Wankford v. Wankford 1 Salk. 299 and notes, the doctrine is quite fully discussed, and clearly laid down. And the practical result is said in Brazier v. Hudson to be that subsequent probate validates all the acts that would be valid after. This may be a somewhat broad statement, but it is certainly true for most purposes, and authorities might be multiplied upon it.
In the United States the rule has been the same. After probate a conveyance previous thereto by a devisee has been held valid. Spring v. Parkman 3 Fairf. 127. And in De Wolf v. Brown 15 Pick. 462, it was held the estate devised vested immediately both as to realty and personalty on the death of testator, so as to authorize suit for a taking of property connected with a farm before probate. The action then was after probate. Both these eases were under statutes like ours.
We have ourselves passed upon the question as to the immediate interest of a legatee in a mortgage which formed part of an estate in realty and personalty willed to her. In Sutphen v. Ellis 35 Mich. 446, we held that an assignment of the mortgage made by the legatee who died before the will was proved was valid. As already suggested, our statute puts realty and personalty on the same footing as to the necessity of probate.
In 3 Redfield on Wills, p. 23, a similar doctrine is laid down, bnt it is suggested there as well as in some other authorities that no action will lie before probate, and this seems to be asserted on an idea that.in law no action accrues any earlier. ,
We think this is a misapprehension. The common law authorities upon pleading require proferí to he made in the declaration, and for this reason it is often said probate must then have been taken out. But we do not find any doctrine requiring probate before action brought, but only before declaring. In 1 Salk. 302, 303, before referred to, it is said that an action may be brought before probate, but plaintiff cannot declare. Several authorities are collected in Comyn’s Dig. “ Administration ” (B 9), to the effect that an action brought before probate is made good by subsequent probate, “ for it is sufficient, if the probate appears upon the declaration.” In Thompson v. Reynolds 3 C. & P. 123, the true doctrine was most distinctly explained. In that case upon an issue made hy plea and replication whether the plaintiff was executor in manner and form as averred in his declaration, in which he actually madejproferí of his letters, he was allowed to recover, although the proof showed the letters were not granted until some months after the declaration was filed.
In equity also it has been held that proof of probate before the hearing is sufficient, although occurring during the litigation: Humphreys v. Humphreys 3 P. Wms. 349. And see Comber's Case 1 P. Wms. 768.
It appears that the only objection that has been urged does not really go to the right of action, but only to the formalities of pleading; and that this forms no exception to the rule that the probate relates back. As under our form of pleading the plaintiff in ejectment is not bound to aver the character of his title except as to its extent, there is no room for the formal ohjection, which has never even in personal actions been allowed to prevail if the party chose to make proper allegations, whether true or false.
We think the plaintiff had a right to bring his suit. The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Marston, C. J.
This case comes clearly within Edwards v. People 89 Mich. 760. The information was sworn to December 26, 1878, and on the' same day the. respondent was arraigned, pleaded guilty, and was sentenced, and there is nothing in the record showing, or from which it can be inferred, that any examination, such as the act of 1875 contemplates, was had.
The júdgment must therefore be reversed and the prisoner -discharged.
The other Justices concurred. | [
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Graves, J.
The plaintiff in error, being sheriff of the county of Livingston, seized under attachments against Daniel A. French certain merchandise as French’s property, and the defendant in error, the father-in-law of French, brought trover. He claimed to have bought the property of French, befpre the levy of the attachments, for $1600, and that a little more than $1000 of the consideration consisted of a sum French was owing him for money loaned and the interest on it, and that the remainder was represented by three promissory notes he made to French running two, four and six months, respectively, and being negotiable. The defense set up was that this sale was fraudulent against creditors. The jury- sustained the sale and the case is brought up on exceptions.
The parties seem to have prudently acquiesced in the propriety of a full investigation, and the record discloses only one objection to evidence. A witness for the defense had testified to the state of French’s bank account, and, in the course of the rebutting case, French stated that he had the means of knowing how much he checked out of the bank fi'om June 14th to November 1st, 1879 — that he could tell by looking at his check book. He was then asked to state how much, and it was objected that the question was immaterial. But the court allowed him to answer. Though not important the-evidence was pertinent. It belonged to a pprtion of his affairs which had been inquired into by the defense.
Complaint is made because the circuit judge refused a series of requests. By a number of them the judge was requested to pick out certain enumerated circumstances and convey his opinion to the jury that if they were proved they were signs of fraud on which the issue might be decided. The question to be settled was one of fact and exclusively within the province of the jury, and it was their right and their duty to construe the evidence and decide upon its drift and force to produce belief in their minds. The judge was not bound to suggest specific incidents and communicate his judgment upon their inherent strength as evidence.
We do not mean to say, however, that it is error to direct the attention of the jury to important pieces of evidence, and in such terms as to explain the case and assist them to apply their attention to the essential points, but without misleading them or withdrawing their minds from the due consideration of every item of evidence possessing value. That is not improper and is sometimes important. In this case the circuit judge went far enough certainly in‘this respect, and the plaintiff in error has no proper ground for complaint.
Instructions were requested to the effect that-if French in making sale to Yan Burén did so with intent to defraud his creditors, it was void as against them whether Yan Burén was or was not a party to the fraud. These requests were refused and the judge ruled in substance that if Yan Burén purchased in good faith in payment of an actual debt from French to himself and gave to French for the difference between the debt and the price of the goods his three negotiable promissory notes as alleged, he got a good title as against creditors even though French may have sold with intent t'O defraud them. This was correct. Where a person buys for the sole purpose of obtaining payment of an honest debt, the circumstance that the seller intends to hinder or defraud his creditors does not make the sale void. It must be made out that the buyer participated in the fraudulent intent. Hill v. Bowman 35 Mich. 191; Loomis v. Smith 37 Mich. 595; Jordan v. White 38 Mich. 253; State Bank v. Chapelle 40 Mich. 447; Dudley v. Danforth 61 N. Y. 626.
The sale was an entire thing, and it was either good or bad. It was not divisible so as to leave so much as the prior indebtedness represented, good, and so much as the notes represented, bad. And the requests to charge based on that theory were correctly refused. As the notes were negotiable and given on time, they might be enforced against the maker and there was ground for regarding them as payment.
The requested instruction to the effect that a seller may rescind where the buyer knows he is insolvent and purchases with the intention to withhold payment, was not applicable. The doctrine had no relation to the real controversy. The contention was whether the sale from French to Yan Burén was fraudulent as against the attaching creditors, and not whether the sale by the ¿creditors to French was void in consequence of his fraud committed against them when he became their debtor. Moreover their suits in which the goods were seized, were in affirmance of the sales to French, and so long as they occupy that position they cannot very well set up the. contrary.
The circuit judge in'the opening of his charge noticed that the attaching creditors, and not the sheriff, were the real parties. The accuracy cf the statement is not questioned, and it is not to be presumed that the jury were not sufficiently intelligent to infer the fact before the charge was given. The objection that the judge’s remark, by suggesting that the parties in interest resided out of the county and in the city of Detroit, awakened prejudice against them in the minds of the jurors, is not worthy of comment. •
The record shows no connection between Van Burén or French with the replevin suit of Johnson & Wheeler against Beurmann for the four chests of tea, and there seems to be no proof that the same tea there in question was included in the sale to Van Burén or in the list of articles alleged to have been converted. The parties during the trial agreed upon the value- of the property in question in this action, and the request for a contingent ruling that the value of the tea replevied by Johnson & Wheeler of the plaintiff in error should be deducted, was properly refused. There were no facts to support it, and it is not worth while to inquire into its soundness in theory.
The views expressed dispose of all the objections which are urged and no ground is shown for disturbing the result in the circuit court.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
The defendant having sold liquor oh Christmas, the 25th of December of last year, was prosecuted for it as for an illegal sale, it being alleged that the day was a legal holiday on which such sales a,re forbidden. ■ The jury having brought him in guilty under the charge given by the court, he alleged exceptions. The first is that Christmas is not a “ legal holiday ” within the meaning of the statute. Pub. Acts 1879, act 267, p. 289.
No one doubts the ability of the Legislature to privilege a small number of designated days from such activities as are not essentially needful thereon, and in particular from traffic in spirituous and intoxicating liquors, and it must be admitted that by the act of 1879, just cited, they meant to apply this rule not only to Sundays and election days but to certain other days as well under the appellation of “ legal holidays.” "Was Christmas day intended to be included in this expression ? The counsel for defendant answer in the negative, and the reason advanced is that the statute nowhere in terms makes Christmas a legal holiday, but simply declares that for certain purposes it shall be treated as the first day of the week.
It is true that the statute does not enact in so many words that any specific day shall be a holiday. But that is not important. The past and present provisions concerning privileged days, including this act of 1879, are to our present purpose in pari materia, and are to be considered together, and the identical days contemplated by the Legislature may be ascertained by such examination.
The first act .for investing other days than Sunday with an , exceptional character was passed in 1859. Sess. Laws 1859, p. 119, It was entitled “ An act to designate the holidays to be observed in the acceptance and payment of bills of exchange and promissory notes, and in the holding of courts and it provided that “the first of January, commonly called New Tear’s day, the fourth day of July, the twenty-fifth day of December, commonly called Christmas day, and any day appointed or recommended by the governor of this State, or the president of the United States, as a day of fasting and prayer, or thanksgiving, shall for all purposes whatever, as regards the presenting for payment or acceptance, and of■ the protesting and giving notice of the dishonor of bills of exchange, bank checks and promissory notes, made after the passage of this act, also for the holding of courts, be treated and considered as is the first day of the week, commonly called Sunday.” In 1865 the Legislature passed a new act covering the same subject, but containing a provision for keeping alive and postponing legal proceedings coming up on any such day, and the title was the same as that of the former statute, except an addition expressing the object of the proviso. Sess. Laws 1865, p. 213. In 1875 this statute was enlarged and qualified in certain respects. The list of days was increased by the addition of “ the twenty-second day of February, commonly called Washington’s birthday,” and the “ thirtieth day uf May, commonly called Decoration day.” Provision was made also to guard against any inconvenience which might otherwise happen from the fall on any-such day of the time appointed by a circuit judge for the beginning of a term. There was likewise a regulation to save proceedings taken “ on any such holiday other than Sunday ” to fix the liability of parties to commercial paper, from the invalidating operation of the statute, in certain cases.
But the remaining amendment is worthy of some notice in connection with the present question. It provides that in case “ any of the holidays shall fall upon a Sunday, then the following Monday shall be considered as the said holiday.” The title expressed the object as being to amend the act of I860, and described that act by its own title, and the enacting clause also specified the former act in the same way. The only provision of the act of 1879 expedient to quote, is the following : “ All saloons, restaurants, bars in taverns or elsewhere, and all other places where malt, spirituous or intoxicating liquors are sold, either at wholesale or retail, shall be closed on the first day of the week, commonly called Sunday, election days, or legal holidays, and no malt, spirituous or intoxicating liquors shall be sold or given away in any such place at any time during such days.” The exception in favor of persons whose principal business is dealing in drugs and medicines requires no notice.
It is impossible to avoid seeing the exact sense that the. Legislature, in passing this statute of 1879, attached to the expression “ legal holidays.” It was constitutionally necessary that the title of the provisions should express the object, and there being no question of incompatibility, it is matter of plain reason to use all the light obtainable from both to fix the construction. It is therefore material to observe that the same days which the title of the act signifies under the collective name of “ holidays,” are, in the body of the act, separately and specifically pointed out. On reading together the two parts of the statute, we find in one a complete enumeration of the particulars included under the general term used in the other. " What days are meant by the word “holidays” is shown explicitly. The Legislature applied it to the group described in order to distinguish them from such others as particular sects and classes might voluntarily observe as holidays, and to impart to them, under the name of “ holidays ” or “ legal holidays,” a somewhat special character. As we have seen, the 25th of December is one of the category.
A further consideration may be added. The argument for the defendant proves too much. Were Christmas day to be excluded on the ground contended for, it would follow unavoidably that nothing coirld be retained to answer to the call for “ legal holidays.” The ground taken for excluding Christmas would, according to the necessary meaning of the context, equally exclude all other days possibly capable of being classed under the head of “legal holidays,” and leave nothing whatever for that phrase to apply to. The construction would have the unavoidable effect of nullifying a part of the statute which seems to have been deemed very important and to have received the serious attention of the Legislature, and no one will strenuously contend for an interpretation involving such consequences.
The remaining exception is somewhat obscure, but if rightly understood it is in substance that the defendant having paid his tax for the current year, under the statute of 1877, and complied with all the requirements of that act before the statute of 1879 became operative, he acquired a vested right to sell under the conditions of the former law, and hence at whatever times that law did not forbid, of which 'Christmas was one; and that it was not within the power of the Legislature to prevent his making sales on that day in the year in question.
It is not needful to object, what is in fact the case, that the record authorizes no assumption that the defendant performed any act or paid anything under the statute of 1877. Let it be admitted that he held all the rights of one who, as a seller of liquor at a saloon, had paid the tax called for by the act, and had kept all the requirements of law preceding the enactment of 1879, and still the claim set up is fallacious. The Legislature considered the business as one proper to be taxed and at the same time to be regulated, and it legislated accordingly. The sovereign powers of taxation and of police were mutually exerted. They are State powers, residing together and capable of harmonious employment to effect the ends of good government. Where the object will admit the co-operation of their energies without multifariousness, there is no objection. Even a single measure may be indebted to both without infringing the Constitution. The Legislature abdicated no part of its authority by the legislation of 1877. It did not disable itself from doing what it might subsequently deem wise. It entered into no engagement to abstain from further or other taxation, or from other regulations more or less rigorous. The body convened in 1879 had the same ability as its predecessor of 1877 to exert its judgment through legislation concerning public interests, and the general safety and morals; and the defendant’s calling was not superior, any more than that of others, to the exercise of that ability. He carried on his business subject to the authority and duty of the Legislature to adopt the best measures which its wisdom could devise to protect the lives, health and property of the citizens, and maintain good order, and preserve the public morals.
The act of 1879 is to be regarded as a measure so devised and adopted. Whether, intrinsically considered, it was the wisest possible or the best attainable is not a question for the court.
For discussions having a bearing, see People v. Hcmley 3 Mich. 330 ; Lcmgley v. Ergensinger id. 314; People v. Gallagher 4 Mich. 244; Yoimgllood v. Sexton 32 Mich. 406 ; East Saginaw Manuf'g Oo. v. City of East Saginaw 19 Mich. 259; s. c. 13 Wall. 373; Beer Oo. v. Massachusetts 97 U. S. 25; Bartemeyer v. Iowa 18 Wall. 129; Bertholf v. O' Reilly 74 N. Y. 509.
The exceptions are overruled, and the court is advised to proceed to judgment.
The other Justices concurred. | [
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Graves, J.
This case was taken to the circuit court by appeal from the determination of commissioners on claims in the settlement of the estate of the late Denis J. Campau, disallowing certain claims prosecuted before them by Mr. Palms. The hearing in the circuit court was conducted without a jury, and the judge made a finding of facts and allowed the claims. The finding appears in the margin.
The administrator urges two main objections. Tie admits that the claim of $272.44 allowed February 11, 1865, as a lawful claim against- the estate of Joseph Campau, was at one time a legal demand against decedent Denis J. Campau, but he insists that, under the provisions regulating the settlement of estates, the remedy is barred as respects the estate of Joseph Campau, and being so, cannot be enforced as a personal demand against the estate of the deceased administrator of Joseph Campau. He insists that the other items allowed were never proper claims or demands except as against tbe estate of Joseph Campau; and that if decedent Denis J. .promised to pay tbem, tlie promise was not binding at the ' time for tbe want of writing and the absence of considera- , tion, and in any event is not now enforceable because more ' than six years elapsed between the promise and the death of said decedent.
In regard to tbe claim first mentioned, tlie judge finds that the probate court made no order for tlie payment of debts ,by the estate of Joseph Campau until the 28th of January, 1873. At that time an order was made on tlie application of a creditor and against the opposition of the decedent Denis J. who was then sole administrator and held sufficient assets to pay all claims which had been established against the estate he represented, including those now urged by IVIr. Palms in this proceeding. The cause of the delay in ordering payment does not appear in this record. In case of certain appeals, and no doubt in other cases of necessity, the probate court is empowered to suspend tbe decree for payment (Comp. L. § 4458) and hence to prolong the settlement ■and postpone the arrival of the time for the administrator to become personally liable. It was competent for the •administrator and likewise his duty to hasten the event as far as practicable in view of the statutory regulations and the interests of all concerned, and for the purpose- of this proceeding we may presume that the court in delaying the decree acted regularly, and that the deceased administrator was not at fault in regard thereto, nor in any manner prejudiced thereby. We think his administrator cannot be heard to contend to-the contrary.
The decree before mentioned of the 28th of January, 1873, ordered the payment of the debts within sixty days, and by force of the statute the allowed demand in question became a personal charge against the said Denis J. and he became liable for it “ as for his own debt.” § 4461. It was therefore a proper demand to be asserted against his estate (§§ 4420, 4431) and was seasonably presented. ¥e find no valid objection against its allowance. Whether it could or could not be enforced against the other estate is immaterial. The law having made the administrator liable for it as for Ins own debt, the right of the creditor is absolutely against him and his estate, and not contingent upon the existence of liability elsewhere.
As to the other items in controversy. They were severally allowed by the judge of probate as lawful charges against the estate of Joseph Campau. ' Any one aggrieved was entitled to appeal. No appeal was taken however. The judge had jurisdiction, and hence the proceedings cannot be impeached in this collateral action. He had jurisdiction to commit errors, and if he committed any, their correction could be obtained only in a direct proceeding. No one asserts that there was fraud. The effect of his decisions was to establish an indebtedness from the estate of Joseph Campau to this claimant. The indebtedness remained when the deceased administrator became sole administrator. He held sufficient assets to pay with, and this indebtedness was payable out of them. §§ 4454, 4455.
In these circumstances the probate court, as before stated, ordered him to “pay the debts proved and allowed against the said estate within sixty days.” This decree covered the allowance in question. No appeal was taken and the right became fixed. The claimant was a creditor, and the deceased administrator was rendered liable “ as for his own debt.”
The presumption is that the assets for the extinguishment of these debts were retained by the administrator, and passed after his death, as the facts appear in this record, to his representatives. The other points become immaterial.
We think the facts support, the judgment, and the latter is affirmed with costs. The determination will be certified to the circuit court and court of probate.
The other Justices concurred.
1. Joseph Campau died intestate July 23, 1863.
2. On September 3d, 1863, Francis Palms, said claimant, Theodore J. Campau and Denis J. Campau were appointed by the probate court for Wayne county, administrators of the estate of said Joseph Campau, deceased, and each filed his several bond provided by law, and received letters of administration and entered upon the discharge of his duties as such administrator.
3. An inventory was filed of the property left by said Joseph Campau, deceased, showing that the amount of real estate left by said Joseph Campau amounted to $1,809,531, and the amount of personal property left by said Joseph Campau amounted to $20,652.16.
4 Commis'-iouers on claims against said estate of Joseph Campau were duly appointed to hear, examine and adjust all claims against said estate, and said commissioners, on March 3, 1865. filed their report, dated February 11, 1865, in the probate court for Wayne county, and in the matter of said estate, allowing the claim of said Francis Palms against said estate at tlie sum of $272.44; the whole amount allowed against said estate, by said report of said commissioners, was $7,162.27.
5. But three appeals were taken from the said report of said commissioners on claims, viz;
(a) Shaw & Botsford, from disallowance of claim. The remittitur from the Supreme Court affirming judgment in favor of claimant, was filed in the probate court March 18, 1867.
(b) James Campau, administrator of Jacques Campau, appeals from disallowance of claim. This was faken to the circuit court of the county of Wayne, but, as appears from the record, nothing was done beyond filing of record transcript.
(c) Appeal of Levi Bishop from disallowance of claim. Judgment was rendered in circuit court in favor of said Bishop for $2,280.76, and satisfaction of said judgment was entered February 1st, 1867.
6. After the said report of commissioners on claims was filed, H. II. Emmons presented to said probate court a claim against said estate which, on June 15, 1866, was allowed at the sum of $3,105.94
7. All of the claims against said estate, but that of said Palms, have been paid.
8. -Said Palms rendered three accounts as administrator of said estate, in which there was allowed as due to him from said estate, under the first account, the sum of $763.35, allowed March 20, 1868, and under the second account $1,208.33, allowed April 7, 1868; upon his third account, $1,305.66, allowed May 10, 1870. Copies of each account, and the allowance thereof, are as follows:
Estate of Joseph Campau in Account with Francis Palms, Administrator. Dr. # Or.
1864.
May 4. To revenue stamps for qualification.......... $1 00
1865.
May 4. To one year’s services. 1,000 00
1866.
Peb. 13. To 9 months’and 9 days’ services, to date... . 773 00
$1,776 00 1.012 65
&7<i3 ft*
1864.
July 8. By cash from J. L. Whiting, for rent......... $63 50
Aug. 15. By cash from Albert Bing, for rent........ 8 00
Aug. 17. By cash from J. Rehfuss, for rent........ 15 00
Oct. 8. By cash from J. L.Whiting, for rent.......... 62 60
• 1865.
Jan. 3. By cash from Albert Bing, for rent....... 8 00
Jan. 8. By cash from J.L. Whiting, for rent.......... 62 50
April 8. By cash from J.L. Whit-. ing, for rent.......... 62 50
July 8. By cash from J. L.Whiting, for rent.......... 62 50
July 10. By cash from F. Morrell, for timber....... 529 15
Oct. 8. By cash from J. L.Whiting, for rent.......... 62 50
1886.
Jan. 8. BycashfromJ.L.Whiting, for rent......... 62 50
Jan. 12. By cash from J. Rehfuss, for rent......... 15 00
$1.012 63
Examined and allowed as within stated, this 20th day of March, A. D.
1860. H. W. Deake, Judge of Probate.
Recorded in Liber 68, page 874
Estate of Jos. Campau, in Account with Francis Palms, Administrator.
186". * Dr. Cr.
July 8. By cash of J. L. Whiting............................ $63 B0
Sept. 10. By cash of Albert Ding ............................ 10 00
Ñov. 1. To S}4 months’ service, at $1,000 per annum......... $458 33
Nov. 1, To balance brought forward......................... 885 83
$458 33 $458 S3
Nov. 1. To balance (due F. Balms) brought down. $385 83
Estate of Joseph Campau, in Account with Francis Palms, Administrator.
Dr. 1866. Cr.
Feb. 14. By cash of Charles Wauke.......................... $75 00
Feb. 20. By cash of A. Ding, on account of rent (lot on Front street) ..................................... 8 00
Feb. 20. By cash of A. Ding, for three years1 rent to June 1, 1866. (Main street)................................. 15 00
April 9. By cash of J. L. Whiting........................... 62 50
July 8. By cash of J. L. Whiting........................... 62 50
Oct. 8. By cash of J. L. Whiting.......................... 62 50
1867.
Jan. 8. By cash of J. L. Whiting............................ 62 50
April 8. By cash of J. L. Whiting.......% 62 50
April 16. ~ By cash of Charles Wauke, on account of rent 30 00
1866.
Feb. 13. To paid Free Press notice............................ $4 78
1867.
May 15. To 15 months’ and 3 days’ services, at $1,000 per annum............................................ 1,258 22
May 15. To balance brought forward......................... 822 50
$1,263 00 $1,263 00
1867.
May 15. To balance (due F. Palms) brought down........... $822 50
Examined and allowed this 6th day of April, A. D. 1868, at the sum of $1,208 88 due this administrator from this estate.
H. W. Deare, Judge of Probate.
Estate of Joseph Campau in Account with Francis Palms.
1869. Cr. Dr.
Nov. 6. To 24X months’ service as administrator, from November 1st, 1867, at $1,000 per annum...... 2,041 66
1867.
Nov. 11. By cash of J. Rehfuss, for rent............. $15 00
1868.
Jan. 8. By cash of J. L. Whiting, for rent.......... 62 50
Feb. 21. By cash of C. Wauke, for rent.............. 30 00
April 1.By cash of J. Rehfuss, for rent............. 40 00
April 8. By cash of J. L. Whiting, for rent.......... 62 50
May 11. By cash of Henry Hauser, for rent....... 30 00
July. 8. By cash of J. L. Whiting, for rent.......... 62 50
Oct. 8. By cash of J. L. Whiting, for rent......... 62 50
1869.
Jan. 8. By cash of J. L. Whiting, for rent... 62 50
March 6. By cash of Charles Wauke, for rent. 30 00
March 6. By cash of Albert Ding, for rent..... 16 00
April 8. By cash of J. L. Whiting, for rent... 62 50
July 8. By cash of J. L. Whiting, for rent... 62 50
Aug. 24. By cash of A. J. Heath, for rent..... 45 00
Oct. 8. By cash of J. L. Whiting, for rent... 62 50
Nov. 15. By cash of Charles Wauke.....
Nov. 15. To balance due Francis Palms ,
706 00
$1,335 66
30 00
$1,303 66
■STATE OF MICHIGAN, )
County of Wayne. )
Francis Palms being duly sworn deposes and says that the above ■account by him rendered is true and correct in all respects.
Francis Palms.
Subscribed and sworn to before me this 18th day of January, 1870.
James D. Weir, Judge of Probate.
Examined and allowed as within stated, this 10th day of May, 1870.
J. D. Weir, Judge of Probate.
9. Each of said administrators filed three several accounts which were passed upon and allowed by the probate court. The third account of Denis J. Campau was allowed May 10, 1870; was of receipts and disbursements of money, and showed a balance due at the time to said Denis J. Campau from said estate of the sum of $5701.77.
10. It appears from an order of said probate court, made April 17,1871, that a day was fixed by said probate court for hearing a fourth account ■of Denis J. Campau, but diligent search in the records fails to bring to light either said fourth account, or further mention of the same.
11. Neither the claim allowed said Palms, as creditor of said estate, nor his claim for amount allowed by the'probate court aforesaid for services as co-administrator of said estate, has ever been paid.
12. Said Palms resigned his position as administrator of said estate on May 23, 1870, on which day his resignation was accepted and he was released from his said trust. On December 12,1872, Theodore J. Campau resigned his trust as such administrator, and on that day his resignation was accepted and he was released from said trust.
13. From December 12, 1872, until the time of his death, said Denis J. Campau was the sole surviving administrator of the estate of Joseph Campau, deceased.
14. Theodore J. and Denis J. Campau petitioned the probate court for license to sell real estate. License was granted. They advertised for the sale in their own names, but claimant Palms signed the report of sale and the deeds as co-administrator.
15. When said sales of real estate were made, said Theodore J. and Denis J. Campau requested said Palms to sign the deeds as co-administrator with them, but he refused for the reason that the estate owed him and he had not got his pay. Theodore J. and Denis J. then sent word by their clerk that if he would sign the deeds they would pay him out of the proceeds of said sale, and thereupon, and in reliance upon said promises, said Palms signed the deeds. This conversation occurred before the resignation of said Palms.
10. At the time of granting letters of administration as aforesaid, no order was entered in the said probate court allowing to said administrators a lime for disposing of said estate and paying the debts, as is contemplated and required by §§ 4450-1-2-3, Compiled Laws 1871, nor was there ever any order entered in said probate court in the matter of said estate in regard to the time or manner of payment of debts by said administrators, except as hereinafter stated.
17. On the 16th day of January, 1873, said H. H. Emmons filed in the probate court a petition of which the following is a true copy:
The Probate Court for the County of Wayne.
■ In the matter of the estate of Joseph Campau, deceased.
To the Hon. Albert H. Wilkinson, Judge of Probate of the said Court:
The petition of Halmer H. Emmons respectfully shows unto your honor as follows, to wit:
Your petitioner is a creditor of said estate; that his claim against the said estate as such creditor was duly proved and allowed on the fifteenth day of January, A. D. 1866, at the sum of three thousand one hundred and five dollars and 94-100, as in and by the records and files more fully appears.
Your petitioner has frequently applied to the administrators of said estate to pay the said claim, but they have hitherto neglected and refused to pay said claim, and the same still remains unpaid.
Upon examination of the records and files it appears that no order as required by § 4457 of the Compiled Laws of 1871 of the payment of debts proved against said estate has ever been made, and your petitioner therefore prays your honor to make such order, to the end that your petitioner may enforce payment of his said claim.
By Ashley Pond, his attorney. Halmer H. Emmons.
Piled January 16, 1873.
Said petition came on to be heard, and on the hearing thereof an order was entered in said probate court, of which the following is a copy:
“At a session of the probate court for the county of Wayne, holden at the probate office in the city of Detroit, on Tuesday, the twenty-eighth day of January, in the year of our Lord one thousand eight hundred and seventy-three.
“Present, Hon. Albert H. Wilkinson, Judge of Probate.
“In the matter of the estate of Joseph Campau, deceased.
“This being the adjourned day assigned by the court for hearing the petition of Halmer H. Emmons, a creditor of the said estate, whose claim has been duly proved and allowed, praying that an order may be entered in this court requiring the administrator of said estate to pay the debts proved and allowed against the same; and it appearing to the satisfaction of the court by proof on file that a certified cofjy of said petition and of the order assigning the twenty-first instant for the hearing by the court of said petition has been duly served on Denis J. Campau, now sole administrator of said estate, as was in said order by the court directed, and the hearing of said petition having been continued by consent until this day, and the court having now heard Ashley Pond of counsel for said petitioner, and James D. Weir of counsel for said Denis J. Campau, administrator as aforesaid, and due consideration having been had in the prem isos, and it' appearing to tire court by the records and files in the matter of the said estate that sufficient assets came to the hands of the said Denis J. Oampau, as administrator jointly with Theodore J. Oampau, then one of his co-administrators to pay the debts proved and allowed against the said estate in full, and the time limited in the statute for payment of said debts having elapsed, it is ordered and decreed that the said Denis J. Oampau, administrator of said estate aforesaid, pay the debts proved and allowed against the said estate within sixty days from the date hereof.
“Albert H. Wilkinson, Judge of Probate.”
Au appeal was taken to the circuit court, and by said court said order was affirmed.
18. From November 26, 1873, down to the death of Denis J. Oampau nothing was done in the matter of said estate in said probate court.
19. Said Denis J. Oampau died August 15, 1878, and on September 19, 1878, Charles B. Lothrop was appointed and still is administrator of his estate.
20. In the year 1867 a hill for the partition of the real estate of Joseph Oampau, deceased, was filed in the circuit court for Wayne county, in chancery, and said real estate was, by a decree of said court made February 6, 1869, divided among the heirs, of which property said Denis J. received one-ninth part as heir-at-law of said Joseph.
21. Said Palms presented to the commissioners on claims appointed in the estate of Denis J. Oampau, all the claims allowed him as aforesaid against the estate of said Joseph, and claimed that Denis J. was personally liable to him for the amount thereof, with interest. But said claims were disallowed in whole by said commissioners on claims in the said estate of Denis J. From this decision of the commissioners said Palms appealed.
And upon the-said evidence and said findings the defendant and appellee objected that the plaintiff was not entitled to recover, but the court overruled the objection and held that the plaintiff was entitled to recover the whole of his said claim, and allowed the same at the sum of $6,481.81, being the amount of said claim with interest. And thereupon, on the thirtieth day of July, 1880. a judgment was entered in said cause allowing the claim of said plaintiff and appellant against said appellee at the sum of $6,481.81, and costs to be taxed; and thereupon said defendants and appellee excepted by its attorney to the ruling of the said court aforesaid and to said judgment, for the reason that upon all said evidence and said findings said plaintiff and appellant was not entitled to have his said claims or any part thereof allowed against said estate.
And at the request of the parties to this suit I have, this sixth day of August, 1880, settled and signed the foregoing as a case made after judgment in this cause in accordance with the statutes and rules in such cases made and provided. F. H. Chambers,
Circuit Judge. | [
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Marston, C. J.
That complainants were to have the pine timber upon the lands described in the certificates assigned to defendant Gilbert, and that the latter was to give them a written agreement to that effect, we have no doubt. The value of the lands with the timber thereon, the consideration paid, the letters written to complainant Thompson, and the omission to produce his letters in reply thereto, as well as the oral testimony on both sides, clearly establish the fact of reservation.
It is not shown that defendant Whitney is a bona fide purchaser. His purchase would seem to be colorable merely, but whether so or not, he has not proved the payment of any consideration or attempted so to do.
It is said that complainants in purchasing these lands from the State committed a fraud, in reference to the pine timber in dispute, and that they cannot therefore obtain relief in this case. The fraud, if any, .consisted in Thompson’s making and filing with the Commissioner of the State Land Office an affidavit that these were not pine lands and -were valuable mainly for agricultural purposes.
Under the statute the minimum price of school lands was, fixed at four dollars per acre — one-quarter payable in cash and the balance on time. If the land was valuable mainly because of the timber growing thereon, a difference would be made in the time of payments, or security be required., Comp. L., §§ 3817,3823. The price per acre of the land was not increased, and the additional payment or security was required for the protection of the State. j
In this case it is not questioned by any (and an agent of ¡ the State was examined) but that the land, even stripped of1 the pine, was ample security for the unpaid balance to the State, and besides, the complainants offered to secure the | •State against all loss. The State therefore is not injured and' seems to be satisfied, and defendants cannot under suchcir-' cumstances take advantage of this objection.
The decree must be affirmed with costs.
The other Justices concurred. | [
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McAlvay, J.
This suit is brought by plaintiff against defendant company to recover upon insurance policy No. 3194, issued by it December 6, 1887, to J. J. Reimold, for a loss claimed to have been sustained thereunder.
The facts in the case are not in dispute. It appears from this record that J. J. Reimold died intestate, February 14, 1900, leaving surviving him a widow and eight children. The plaintiff, a son, was appointed adminis trator of his estate, March 19,1900, and entered upon the-duties of his office. The estate consisted of personal and real property. On or about February 29, 1904, he filed a. final account in the probate court for Macomb county, petitioning for its allowance, and on April 5, 1904, an order was entered in said court allowing said account as presented, assigning the residue of the estate, consisting of' real property, to the widow, who was also described as assignee of all of the children, and the administrator was. declared discharged and his bond canceled. The petition, for this order stated that the children had all joined with him and released all claims to the personal property to their mother. The order makes no disposition or mention, of the personal property, and the record shows that it was never divided, or any agreement entered into in regard to' it. A quitclaim deed of the real estate was made by all of' the children to their mother on or before April 12, 1904.
The loss by fire caused by lightning, for which suit was brought, occurred September 1, 1907, destroying one of the barns and contents covered by the policy. The entire amount of insurance carried by the policy was $5,'057, and this loss is agreed to have amounted to $2,175.87. All fees, dues, and assessments, under this policy, from the date of its issue until the fire occurred, were paid in full and receipted for by defendant. After the death of the father they were paid by plaintiff or some member of the family. While acting as administrator, plaintiff, on August 2, 1901, applied for and was granted additional', insurance of $1,000 under this policy, receiving a receipt describing him as administrator, and “a member of said corporation for the register and membership fees on additional insurance under policy 8194.”
After the fire, plaintiff immediately notified the company of the loss, and the president, secretary, and a director, being the official adjusters of defendant, at once came and looked over the loss. Upon being asked by the president if he was administrator of his father’s estate, he replied that he was, and his testimony is that he believed that he was. Ten days later the full board of directors of defendant examined the loss in a body. Plaintiff met them at the creamery, in Mt. Clemens, where he worked, after they had been to the farm. At this meeting the items of loss as mentioned were discussed, and the officers told plaintiff some of them were too high. They asked bim if he would stand a cut, to which he replied that he would not. They offered him about $1,940 or $1,950, which he did not accept. The proofs of loss had been made out by him, and were given to the officers of the company at the time they were at the house. These proofs were sworn to before defendant’s secretary, a notary public, September 30, 1907, at an appointed meeting of the board of directors with him, and are signed by plaintiff as administrator. His recollection is that he was requested to sign as administrator by some member of the company. At this meeting the items of loss were discussed without result. On November 1, 1907, an assignment was made by the widow and heirs at law of J. J. Reimold to plaintiff, of all their rights and interest in this policy. In December plaintiff and his attorney, Mr. Weeks, met the secretary of defendant at the hotel in Mt. Clemens, and asked why the company did not pay the loss. He replied that it was because of a transfer. He said that the company would pay when they found out whom to pay it to. The secretary informed them that he would arrange for a meeting and notify the attorney to be present.
A witness testified that on this day the secretary told him plaintiff should have had the policy changed when he was discharged as administrator; that a meeting of the directors would be held soon, and he thought without doubt the claim would be settled; the only question was whom to settle with. This witness on the following day related this conversation to plaintiff, and, relying upon this, he employed counsel to adjust the loss.
Plaintiff did not personally attend any later meetings of the company’s directors. On January 14,1908, the secretary, by order of the president of the company, wrote a letter to plaintiff’s attorney, notifying him to attend a meeting to be held at his office to consider the Reimold matter. Two attorneys appeared at this meeting of the board authorized to act for plaintiff. The matter was fully discussed. The items of the claim were considered, and the fact that plaintiff had signed the proofs as administrator was mentioned. The president stated that they would like to settle the loss; that the estate had been closed, that a deed had been made to the widow, and there was a question whether the board had the power to settle a loss of this kind. They did not say that they would not pay the loss at this meeting or at any meeting. Because defendant’s attorney was not present nothing was done. It was understood that another meeting would be held when defendant’s attorney would be present. Plaintiff’s attorneys were notified of such meeting and attended. At this the same matters were gone over. Defendant’s officers stated that they would advise later what their decision would be. At the third meeting plaintiff was represented as before. The president stated that they had pressing business, and it would be impossible to discuss the Reimold matter. Plaintiff incurred an expense of more than $100 after he employed his attorneys before liability was denied by defendant.
No portion of the dues and assessments paid by plaintiff after his father’s death were tendered or returned up to the time of the trial of the case. During the trial defendant’s attorney tendered into court about $75,—
“Representing all moneys paid to the. company after the closing of the estate, or such times as the proofs should show the policy to have been canceled as claimed by the company, and all costs taxable at the time of tender; and, further, that such tender was made without conceding liability in any other manner.”
Defendant offered no proofs, and, at the close of plaintiff’s case, asked for a directed verdict. This was denied, and a verdict was instructed for plaintiff, upon the ground that defendant had waived the claimed forfeitures of the insurance policy. A motion for a new trial was made by defendant and denied.
The case is before us on writ of error. But one question of importance is presented, and that is whether the court was in error in holding that defendant had waived the claimed forfeitures of this policy. We are satisfied that the admitted facts above stated warranted the action of the court.
The claimed breaches of the policy upon which defendant relies are (1) that the estate of J. J. Reimold was closed; (2) that there was a change of title by deed from the heirs to the widow. The deed to the widow was duly recorded April 12, 1904. The fire occurred September 1, 1907. Other facts already stated need not be repeated. It is only necessary to state that after full personal knowledge of the closing of the father’s estate and the transfer to the widow, the secretary and other officers of the company without repudiating the claim of plaintiff, continued to deal with him as if they intended to pay the loss he claimed. Notice was given to his attorney to meet with the officers. Plaintiff in good faith relied upon what the secretary said, and went to large expense employing attorneys to attend these meetings. It was the duty of defendant’s officers when knowledge of these claimed breaches of the policy came to them, to promptly repudiate liability. Carpenter v. Insurance Co., 61 Mich. 635 (28 N. W. 749); Cleaver v. Insurance Co., 71 Mich. 414 (39 N. W. 571, 15 Am. St. Rep. 275), and cases cited; 13 Am. & Eng. Enc. Law (2d Ed.), p. 257, and cases cited. Defendant, after full knowledge of the facts, did not return or tender any assessments paid after the claimed forfeitures occurred, until after suit was brought. Such retention of these assessments amounted to a waiver even if the insurer at the time when payments were made did not have notice of such forfeitures. 19 Cyc. p. 798c, and cases cited.
Upon the question whether there were in fact any forfeitures of this policy, as claimed by defendant, under the circumstances of this case, we express no opinion. Upon the question of waiver we are in accord with the trial court.
The judgment is affirmed.
Moore, Brooke, Blair, and Stone, JJ., concurred. | [
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Ostrander, J.
{after stating the facts). The order for the commitment was made March 15th, as appears by the record of the court. The commitment was issued that day. The clerk, by inadvertence, dated it March 14th, and recited therein that the order therefor was made on March 14th. This correction of the commitment was asserted as a reason for quashing the same. With respect to this the court said:
“As far as the change in the writ is concerned, the court approves of the change in conformity with the facts.”
This after counsel for both parties, in response to the inquiry of the court, admitted that the changes made conformed to the fact. The respondent was in any event in custody and the change in the commitment affected him in no way. It would have been mere matter of form to hand it to the clerk for correction.
The statute requires the person upon whom any such writ shall have been duly served, if such person shall have had the party in his power or custody or under his restraint at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, to particularly state in the return to whom, at what time, for what cause, and by what authority such transfer took place, and, further, that if the person upon whom the writ has been served shall refuse or neglect to make a full and explicit return to the writ within the time required by law, and no sufficient excuse shall be shown for such a refusal or neglect, it shall be the duty of the court before whom such writ shall have been made returnable, .upon due proof of the service thereof, forthwith to issue an attachment against such person and commit him to the jail of the county until he shall make return to the writ. See 3 Comp. Laws, §§ 9869-9873. It will be perceived that in committing the respondent the court was not exercising the inherent jurisdiction and power of courts to compel obedience to the orders of court, but was following the method which the statute affirmatively requires shall be followed to enforce obedience to the command of the writ. If, therefore, the court had jurisdiction to issue the writ, and if the return thereto, the child not being produced, was evasive and not full and explicit, the action of the court has affirmative legislative approval.
It is said that the petition fails to show that the petitioner is entitled to the custody of the child as against the respondent, and, on the other hand, shows that the respondent is legally entitled to said custody. This contention is based, in part, upon the provisions of 3 Comp. Laws, § 8701. This section is a part of chapter 234, the title of which is “Guardians and Wards,” and relates to the powers of judges of probate to appoint guardians for minors. There can be no doubt that the father is the natural guardian of his child, nor that the statute just referred to contemplates that, as against all other relatives and all other persons, the father, and, in case of his decease, then the mother, they being, respectively, competent to transact their own business and otherwise suitable, are entitled to be appointed guardians of the persons of minor children. It is also provided (3 Comp. Laws, § 8689) that in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of 12 years. There is nothing in either provision which interferes with the right of a court of competent jurisdiction, upon investigation and upon consideration of the best interests of a minor child, to commit said' child to the custody of either the father, the mother, or of some other suitable person. But until the right to such custody has been judicially determined, and as between parents of a minor who are living together as husband and wife, there is no rule, statute or other, which permits either, as of right, to dispose of a minor child to the exclusion of the other. It is averred in the petition for the writ of habeas corpus that since the 23d day of February, 1910, these parties have not resided together as husband and wife at their home. The answer of respondent indicates a serious estrangement. If the petition is treated as asserting a separation of the parents, then it asserts also a prima facie right of the mother to the custody of this child.
It is said that the statute (section 9858) limits the right to the writ to cases where persons are restrained or imprisoned within the State, and limits the jurisdiction of the circuit court for Wayne county (section 9860) tocases of restraint within the county, and there is no allegation in the petition that the child is within the State or within the jurisdiction of the court. We do not feel called upon to enter at this time into a nice discussion of the effect of the apparent legislative limitations upon the use of the writ of habeas corpus. See In re Jackson, 15 Mich. 417; Rivers v. Mitchell, 57 Iowa, 193 (10 N. W. 626); 21 Cyc. p. 309. The parents of the child are both of them within the jurisdiction of the court, and their home and that of the child is in Wayne county. It is alleged in the petition that the child is detained, imprisoned, or concealed by the father in the city of Detroit or elsewhere. This is equivalent to the allegation that the restraining force, the control of the detention, and of the person of the child is within the jurisdiction, and it does not appear that the place of detention can be more specifically stated. What we are now required to decide is whether the allegation is sufficient for purposes of jurisdiction to issue the writ. We hold that it is sufficient.
It is said that the petition does not allege that the respondent is unfit to have the custody of the child or that he is not caring for him in a proper and reasonable manner, or that the petitioner is a fit person to have his care and custody or that she is in condition to care for him properly, and that there is no statement in the petition from which it may be inferred that the child would be benefited by the transfer from the custody of respondent to that of the petitioner; that, unless such a showing is made on the hearing, the court would be obliged to dismiss the writ because it could not properly make an order giving the child into the custody of the mother.^
The argument assumes that the child is in the custody of the father, and it must rest upon some notion of a legal right of one parent as against the other, in the absence of judicial determination, to dispose of the child — an argument already answered. It may be added that it is the husband who is here asserting such right of disposal and admits having placed the child beyond the care and control of his mother; that without a return which shows what he has done with his child, and without his production of the child, the court is in no position to make intelligently any order in the premises.
It is said that, in any event, the return is sufficient because it appears therefrom that the child is outside of the State of Michigan. It does not appear by the return that the child is outside of the State of Michigan or outside of the county of Wayne, or that it was outside of the jurisdiction when the return to the writ was made. It would not be beyond the power of the court to inquire into the fact if respondent had returned absolutely that at the time the writ issued and at the time the return was made the child was outside of the State. Such an allegation is traversable. In this case the allegations found in the return are not traversed, for the very good reason that the return itself was adjudged by the court to be an insufficient return. Clearly the law would need amendment if the jurisdiction of a court in habeas corpus proceedings depended upon the allegations in the return to the writ.
We find no error in the proceedings. We find the return incomplete, not explicit, and not such an one as the statute requires to be made. The petitioner in habeas corpus will recover of the respondent (the plaintiff here) costs of this court to be taxed as in a cause heard upon motion.
Hooker, Moore, McAlvay, and Blair, Jj., concurred. | [
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Brooke, J.
(after stating the facts). The Tabard ■Office Supply Company was admitted to do business in this State on December 15, 1906, under the provisions of Act .No. 206 of the Public Acts of 1901. Section 5 of that act is as follows:
“Any foreign corporation so admitted to carry on business in this State shall be subject to any and all provisions of statute requiring the filing of reports by corporations of this State, organized for the purpose for which such foreign corporation shall have been admitted; and a failure to file such report within the time prescribed shall be sufficient cause for revoking the right of such corporation to carry on business in this State, which revocation may be declared by any court of competent jurisdiction on complaint filed by the attorney general.”
This act was amended in 1907 (Act No. 310, Pub. Acts 1907), by providing in section 4 that—
“ The secretary of State shall in the certificate which he issues state under what act such corporation is to carry on business in this State, and such corporation shall have all the powers, rights, and privileges, and be subject to all the restrictions, requirements, and duties granted to or imposed upon corporations organized under such act.”
The certificate of admission granted by the secretary of State to the Tabard Office Supply Company, authorized it to do business in this State, “with all the rights and privileges, but subject to all the restrictions, requirements, and liabilities of a corporation organized under the provisions of Act No. 232 of the Public Acts of 1903.” Section 12 of that act reads in part as follows:
“Every corporation subject to this act shall annually, in the month of January or February, make duplicate reports for the fiscal year last ending, * * * and for refusal or neglect to make and deposit the reports required by this section before the first day of September in each year, the directors shall be liable for all the debts of such corporation contracted during the period of such neglect or refusal, and shall be immediately subject to all the penalties provided in this section.”
This section was amended in 1905 (Act No. 194), by inserting after the words “every corporation subject to this act” the words “including every foreign corporation admitted to carry on business in this State under the provisions of this act.” It is the position of the appellants that the amendment to section 12, supra, whereby the penalties incurred by directors of domestic corporations for failure to file the annual report are in terms likewise visited upon directors of foreign corporations, is unconstitutional and void.
Act No. 232, Pub. Acts 1903, is entitled:
“An act to revise and consolidate the laws providing for the incorporation of manufacturing and mercantile companies or any union of the two, and for the incorporation of companies for carrying on any other lawful business, except such as are precluded from organization under this act by its express provisions, and to prescribe the powers and fix the duties and liabilities of such corporations.”
This title obviously relates to domestic corporations only, and we are of opinion that the amendment by which the legislature attempted to impose penalties upon directors of foreign corporations is not fairly within the title of the act, under our decisions, Grosvenor v. Duffy, 121 Mich. 220 (80 N. W. 19), and cases cited.
But it is urged by the appellee that the defendants are liable for the penalty, even though this amendment fails. This liability is predicated upon the language above quoted, from section 4, Act No. 310, Pub. Acts 1907, which makes foreign corporations “subject to all the restrictions, requirements, and duties ” imposed upon cor porations organized under the act, which is designated by the secretary of State as the one under which such foreign corporation shall do business. With some hesitation we have reached the conclusion that this ground is untenable.
It is not to be doubted that the legislature intended, by its amendment to section 12 of Act No. 232, to impose the same penalties upon directors of foreign corporations for failure to make the required reports as are visited upon those of domestic corporations, and it maybe that in using the language quoted from section 4 of the so-called “ Comity Act ” the legislature intended to include in the words “ foreign corporations ” not only that impersonal and incorporeal thing, the corporation itself, but likewise its directors and stockholders, but nevertheless, statutes imposing penalties must be strictly construed. Gilbert v. Kennedy, 22 Mich. 5; Shaw v. Clark, 49 Mich. 384 (13 N. W. 786, 43 Am. Rep. 474); Crosby v. Railroad Co., 131 Mich. 288 (91 N. W. 124). We are not disposed to enlarge by intendment the natural meaning of the words used.
This view is strengthened by an examination of the whole of Act No. 310, Pub. Acts 1907, which prescribes “the terms and conditions on which foreign corporations may be admitted to do business in Michigan. ” It will be observed that that act itself provides specific penalties for the failure to file annual reports, to wit, the revocation of its certificate to do business, and section 5 provides that, for a failure to comply with the requirements of that section, the corporation shall be subject to a penalty of not less than $100 nor more than $1,000 for every month it continues to transact business in Michigan without such compliance. These provisions would seem to negative the idea that besides the express penalties prescribed, it was intended by the legislature in using the words “restrictions, requirements, and duties,” to impose upon the directors (who are nowhere mentioned in the act) the added pen alty of personal liability for the debts of the corporation, in case it made default in filing its annual report.
A very similar question was before the Supreme Court of the United States in the case of Park Bank v. Remsen, 158 U. S. 337 (15 Sup. Ct. 891). There that court said:
“ Section 12 of the act of 1848 is not in terms re-enacted in the charter of the warehouse company. It is, as we have seen, a statutory provision of a penal character, and before any party can be held bound by its provisions, it must satisfactorily appear that the legislation of the State has rendered him subject thereto. The contention is that section 9 of the charter of the warehouse company in effect incorporates said section 12 into such charter, but the provision of section 9 is that the corporation shall possess all the general powers and privileges and be subject to all the liabilities conferred and imposed upon corporations organized under the act of 1848. It is the corporation which is given the powers and privileges and made subject to the liabilities. Does this carry with it an imposition of liability upon the trustee or other officer of "the corporation ? The officer is not the corporation; his liability is personal, and not that of the corporation, nor can it be counted among the powers and privileges of the corporation. How then can it be contended that a provision in a charter, that the corporation thus chartered shall assume all the liabilitiesjmposed by a general statute upon corporations, carries with it a further provision of such general statute that the officers of corporations also assume, under certain conditions, the liabilities of the corporation ? Does one by becoming an officer of a corporation assume all the liabilities resting upon the corporation; is not his liability of a distinct and independent character •and dependent upon other principles? * * * In the ■absence of any controlling decision, we are unwilling to hold, that a provision of a general statute imposing a personal liability on trustees or other officers, is incorporated into a special charter by a clause therein declaring that the corporation shall possess all the general powers and privileges and be subject to all the liabilities conferred and imposed upon corporations organized under such general act. (Something more specific and direct is necessary to burden an officer of the corporation with a penalty for omission of duty.”
We have examined the cases of Nelson v. Bank of Fergus County, 157 Fed. 161, 84 C. C. A. 609; Starkweather & Shepley v. Brown, 25 R. I. 142 (55 Atl. 201), and Miller v. Quincy, 179 N. Y. 294 (72 N. E. 116), cited for appellees, but find nothing therein, which, in our opinion, tends to cast doubt upon the correctness of the reasoning in Park Bank v. Remsen, supra.
It is a simple matter for the legislature, at its next session, by a suitable amendment to Act No. 810 of the Public Acts of 1907, to impose a personal liability upon directors of foreign corporations for failure to file annual reports, if, as is evidently the case, it intends such liability should attach. As its enactments now stand, we are of opinion that no such liability exists.
The order overruling the demurrer is reversed, and the demurrer sustained.
Moore, McAlvay, Blair, and Stone, JJ., concurred. | [
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McAlvay, J.
Complainants filed their bill of complaint in the circuit court for Saginaw county in chancery, asking for an accounting with defendant Edward C. Hargrave, as executor, individually, and as surviving partner of E. J. Hargrave & Son, charging fraud against him in his management of the estate, and the affairs of the partnership. This defendant was appointed executor of his father’s estate in 1887. He filed an inventory and appraisal of the estate, showing property of the value of $50,000, since which time he had filed no account whatever. Complainants are grandchildren of E. J. Hargrave, deceased, having an interest in his estate.
Defendants are all the other parties in interest. De fendant Edward C. Hargrave, as executor, individually, and as surviving partner, answered the bill of complaint, as also did some others of the defendants. Some were defaulted. The cause, being at issue, was duly noticed for hearing in open court, and was set down for a certain day. On motion of defendant Edward O. Hargrave the time’ for the hearing was extended to a later date. He then filed what purported to be his final account in the probate court for Saginaw county as executor, and at once filed a. petition in this case showing that he had filed a final account, praying that the bill of complaint be dismissed because of want of jurisdiction in the court to proceed against him as executor for an accounting. Upon a hearing this petition was denied. He then took a general appeal to. this court from the order denying such petition.
Complainants have made a motion before this court to-dismiss the appeal. It would seem that appellant, after answering fully complainants’ bill, in which he denied that, he had any assets, and expressed a willingness to have an accounting, now desires, after he has filed an account in probate court, by this motion, to have a question arising in that suit determined in advance, and in the brief filed this is admitted. In chancery cases an appeal will only lie to this court from a final order. He did not elect to raise the question by demurrer, in which case he would have been strictly within the statute and entitled to an appeal, if his demurrer was overruled. The order is not a. final one. Appellant is not deprived of any supposed right, nor does it fix upon him any liability. Kingsbury v. Kingsbury, 20 Mich. 212. The cases of Hitchcock v. Wayne Circuit Judge, 144 Mich. 362 (107 N. W. 1123), and Warren v. Lenawee Circuit Judge, 160 Mich. 572 (125 N. W. 712), cited by appellant, are not in point, nor is there any indication in either of them that such an order as the one here appealed from is a final order. This court has recently held that an order denying a motion to strike a bill of complaint from the files was not a final order. Williams v. Olson, 151 Mich. 265 (114 N. W. 1031). The fact that by the petition the jurisdiction of the court was challenged does not determine the question whether the order made was a final and appealable order. As was said in the case last cited, that is determined by its effect upon the rights of the parties..
This has always been the rule in this State. The motion to dismiss is granted.
Bird, C. J., and Brooke, Blair, and Stone, JJ.,, concurred. | [
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Brooke, J.
Complainant, who was a creditor of defendant American Color Company, on December 14, 1906, caused an attachment to issue against the property and effects of said defendant. On December 19, 1906, an agreement was entered into between the parties to that suit to liquidate the damages by arbitration. On May 1, 1907, the arbitration committee signed a finding, fixing the amount of complainant’s claim at the sum of $2,275.84. The said defendant was a tenant of complain ant, and there appears to have been past due on account of rent the further sum of $1,250. Complainant had another claim against said defendant for repairs amounting to $87.20. None of these claims were placed in judgment, and, of course, no execution therefor was returned unsatisfied, in whole or in part. On May 17,1907, complainant filed his bill in this cause, setting out gross mismanagement on the part of the officers of said defendant, and averring that many of the stockholders (also made defendants) had not paid in full for the stock standing in their several names. He prayed that the Security Trust Company (already acting as trustee for the defendant American Color Company under a mortgage) be appointed trustee to collect the assets of said defendant, and distribute the same among the bona fide creditors thereof;
“ That an account be taken to show the true condition of the company, and the amounts so due from the various said stockholders and all the members of the company, and that the necessary orders and decrees may be entered requiring their proportional contributions for the amounts so unpaid on their said stocks, to the extent necessary to make up the deficit or shortage required to pay in full all legitimate claims and expenses of administration and of this proceeding, and for the enforcement and collection of such orders and decrees according to law.”
To this bill of complaint defendants Ramage, Hopkins, Charles W. Thompson, W. Thompson, Jr., Jenks, and Pepper demurred. The principal ground of demurrer is—
“That it appears affirmatively from said bill of complaint that said complainant is not a judgment creditor of said defendant American Color Company in any manner or form whatsoever, and it further appears that the main purpose of said bill of complaint is to enforce a liability on this defendant for unpaid subscriptions to the capital stock of said defendant American Color Company.”
Prom a decree sustaining the demurrer complainant appeals.
Complainant’s position, as we gather it from a very voluminous brief, is:
(1) That it is not necessary for him to have reduced his .claims to judgment in order to maintain his bill to compel payment of unpaid stock subscriptions; and
(2) That, if a judgment is necessary, the arbitration award is equivalent in law to a judgment.
His first contention has been directly passed upon in McKee v. Garbage Co., 140 Mich. 497 (103 N. W. 906). It was urged there, as it is in the case at bar, that independent of the statute (chapter 269, §§ 9755-9780, 3 Comp. Laws), equity courts exercised jurisdiction over directors, managers, trustees, and other officers of corporations for many of the purposes specified in the statute, and exercised that jurisdiction at the instance of any creditor, whether he had proceeded to judgment or not, or whether his claim was due or not. This court in disposing of complainants’ contention there said:
“ We cannot recognize that principle in this State, because we have already deliberately repudiated it. See Bank of Montreal v. Lumber Co., 90 Mich. 345 (51 N. W. 512). Complainants cannot therefore maintain their suit on any general principle of equity.”
In C. H. Little Co. v. Cemetery Ass’n, 135 Mich. 248 (97 N. W. 682), it was held that, aside from the remedies and proceedings provided by chapter 269, §§ 9755-9780, 3 Comp. Laws, courts of equity have jurisdiction in many cases, but it was further held that—
“ It is the common-law duty of a creditor in such cases to proceed first against the property of the corporation, to ascertain if any can be found to satisfy his debt, before proceeding against the stockholders. The proceeding against the stockholders would be entirely unnecessary if there were tangible assets subject to the payment of creditors.”
In effect, complainant asks us to overrule our holding in McKee v. Garbage Co., supra, together with the decisions upon which it is based. No good reason is perceived for such a course. It seems to us that it is imposing no hardship upon a creditor to, ask him to first exhaust his legal remedy by judgment and execution against the assets of the corporation itself before permitting him to inquire into the relations existing between the corporation and its stockholders. He has no interest in the subject, unless the corporation itself is unable to pay its debt.
Is the arbitration award the equivalent of a judgment ? Many decisions as to the effect of an award are cited in-complainant’s brief, but .none of them answer this question in the affirmative. It is, we think, clear that it is rather' the basis for a judgment than its equivalent. An execution could in no event issue upon the award itself without a precedent judgment. But, if complainant’s contention as to this question is correct, it does not meet the situation. The object of the statute and of the common-law rule is to insure the exhaustion of the assets of the corporation itself before recourse can be had to unpaid stock subscriptions, and this can be done only by issuing an execution against such assets. Its return unsatisfied, in whole or in part, clothes the court with jurisdiction to proceed against the delinquent stockholders.
The decree is affirmed, with costs.
Bird, C. J., and Ostrander, Moore, and Blair, JJ., concurred. | [
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Bird, C. J.
Plaintiff brought suit against the defendant in the Wayne circuit court and declared upon all the common counts in assumpsit, and filed a bill of particulars of his claim in compliance with defendant’s demand, the items of which were as follows:
“September 21, 1903, to cash loaned to defendant, $2,000.
“ January 6, 1906, to cash loaned to defendant, $8,500.”
It was the claim of plaintiff that he had loaned these amounts to defendant to enable her to purchase certain real estate in the city of Detroit. The real estate was purchased by her upon a contract, and the $2,000 loaned in 1903 was to enable her to make the first payment thereon, and the $8,500, loaned on January 6, 1906, was to enable her to make the final payment on the contract and get her deed. The deed was made January 9, 1906, and placed of record the following day. The defendant was desirous of obtaining a loan to make certain repairs and improvements upon the property, and the plaintiff gave this as a reason why he took no security for the loan. He also gave as a reason that he was well acquainted with her and had confidence in her honesty. The investment did not turn out as well as expected, and there was talk between them of making a sale of it. The plaintiff at that time agreed to accept $7,000 and the use of a room in defendant’s house for the rest of his life in payment- of the loan. The defendant denied that she owed plaintiff these sums or any sum, and denied that she ever borrowed any money from the plaintiff, save in some small amounts to pay her current expenses. The jury returned a verdict for plaintiff for $7,525.
The defendant’s counsel assigns error upon the refusal of the court to instruct the jury in accordance with following request:
‘ ‘ That they would have to find that the moneys were loaned at the times specified in the bill of particulars, as testified to by plaintiff.”
The court refused to give this request and we think properly so. To say that, because plaintiff’s testimony disclosed a variance of a few days from the date named in the bill of particulars, he should fail in this action, would be laying down a rule stricter than the law demands. In 1 Green’s New Practice (2d Ed.), p. 512. It is said:
“ But as the object of this strictness in a bill of particulars is that the defendant may know what will be attempted to be proved against him at the trial and may prepare his evidence accordingly, a mistake in a particular not calculated to deceive or mislead him will not be regarded as material.”
In Sogge v. Schwartz, 116 Mich. 635 (74 N. W. 1000), an error was made in both the date and amount named in the bill of particulars, but this court held that, inasmuch as the defendant was neither surprised nor misled, the variance should be disregarded. If there were any variance in point of time between the dates named in the bill of particulars and plaintiff’s testimony, counsel for defendant should have objected to its admission when offered or subsequently moved to strike it out, at which time plaintiff’s counsel could have applied for, and secured, an amendment, if the variance was regarded material by the court. This not having been done and there being no claim upon the part’ of defendant’s counsel that he was surprised or misled on account of the variance, we think the court was not in error in refusing to give the request.
Error is also assigned upon that part of the charge wherein the court instructed the jury that—
“If the plaintiff, by a preponderance of the evidence, has convinced you of the truth of his claim, then he is entitled to a verdict at your hands in the sum of $7,000, plus interest at the rate of 5 per cent, per annum, which is stipulated here to be the sum of $525.”
Counsel contends that this instruction was “in effect a direction of a verdict; that if they found for plaintiff it left nothing for them to decide.” In other words, if the jury found that the plaintiff was entitled to recover, the amount of the verdict was foreclosed by the court. We do not so view it. It was the claim of plaintiff that he had loaned the defendant the two sums of moneyj and that subsequently he had agreed to accept $7,000 in payment of them. The court left it to the jury to say whether this claim was established by a preponderance of the evidence. If it was, it would necessarily follow that the plaintiff would be entitled to a verdict of $7,000, plus the interest. The jury could not well be convinced of the truth of plaintiff’s claim and then award him less than $7,000, plus the interest, because that was his claim. If the jury believed the truth of his claim, there would be no basis upon which they could render any other verdict.
The issues were all issues ■ of fact, and we think they were fully and fairly submitted to the jury.
The judgment is affirmed.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Ostrander, J.
These causes were heard together and are presented in this court upon a single record. In the first, in which the Pearll Advertising Company is a party defendant, complainant claims to be entitled to, and asks to be declared to be the owner of, one-fifth of the capi tal stock of the said advertising company; that the association be required to meet and elect a board of directors who are stockholders in the association; and that the association be enjoined from doing any other or further business as a corporation until a board of directors is elected who are stockholders and authorized as such to act as directors. It is charged in the bill of complaint that about four years before it was filed the complainant started the business of bill posting and outdoor advertising, which was carried on under the name of the “ Bay City Bill Posting Company;” that he invested in the business a large sum of money and labor, to wit, $2,000 and upwards; that after the business was started, complainant, Severyna Pearll, and their two sons, Julian and Thadius, worked together in the business and shared the fruits and profits in common until about August 1, 1906, when the said Severyna took complete control of the business and excluded complainant from participating therein except as a common laborer performing manual labor for the said company; that she took possession of the books of account and refused to let complainant see or inspect them or have anything to do with the business except to labor; that after repeated and earnest efforts to adjust matters in relation to said business, and on or about January 28, 1907, he filed his bill of complaint, praying, among other things, that he be relieved touching the matters of the business of said company, and especially that the said Severyna be ordered and directed to deliver to him the books of account and be restrained by injunction from interfering with complainant’s business affairs; that afterwards an amicable agreement was made, by the terms of which complainant was to discontinue his suit, a stock company or corporation was to be organized with $5,000 of capital stock, divided into 500 shares, and all the property of the bill-posting company should be put into the corporation and constitute the capital stock, and complainant should have 100 shares of the stock, the rest being divided between Severyna, Julian, Thadius, and one David L. Galbraith, who was a son-in-law of the parties; that in February, 1907, articles of association were made and filed and recorded pursuant to law, the name of the corporation being “ Pearll Advertising Company that Severyna Pearll subscribed for 430 shares of stock, Julian for 20, and Thadius for 50; that complainant was told that he was a stockholder to the extent of 100 shares and believed it; that a meeting was held at which a board of directors was elected, including complainant and said Galbraith, and the said directors elected complainant president and Galbraith treasurer; that after the organization of this company the business was carried on in the same manner as it was before, but, when he discovered that he was not a stockholder and had no interest in the corporation and applied for 100 shares of the stock, he was informed that he was not a stockholder and had no interest in the corporation.
The bill was verified and was answered by the defendants other than the Pearll Advertising Company, denying especially that complainant ever started the business of bill posting or invested in the business a large sum of money. On the contrary, the defendants say that complainant has never been engaged or interested in the business except at. different times in the capacity of a hired employé. Most of the material allegations of the bill are denied, and it is alleged that after executing the articles of association, and before any transfer of the business aforesaid to said corporation, the stockholders by proper action terminated the corporation and dissolved it. Mere convenience is said to have induced the formation of a corporation, which, however, did no business as such and issued no stock.
In the other suit the bill sets out: That previous to April 16, 1885, complainant was the owner of two certain lots. That on that day, in order to provide for each other in case of death, complainant and his wife, the defendant, made and executed and delivered deeds of the said lots; complainant deeding the land to his wife, and the wife at the same time deeding it to complainant. These deeds were made and delivered on the advice of counsel for the purpose of creating a joint tenancy in complainant and his wife. That the said Severyna fraudulently obtained possession of the deeds and destroyed the deed which she had executed to complainant, but recorded the deed executed by complainant to her. That the premises were were worth $2,000 and upwards. The rental value was $600 a year. Severyna has collected and kept the rent and threatens to continue to do so. He also avers in this bill that he went into the business of bill posting, and invested in it about $2,000, and that his wife, Severyna, after all of the family had worked together in said business, took the business into her own hands, so that complainant has no knowledge of how the business is conducted. The relief prayed for is that the deed made by complainant to Severyna be canceled; that she may be directed to make a conveyance of said land to complainant, or that they may be declared to be joint tenants of said property; that Severyna be ordered and directed to deliver up the books of account relating to the bill-posting business; and that she be restrained by injunction from interfering with complainant’s business affairs, excepting the bill-posting business. She answered the bill denying the material allegations thereof. In each of these causes the court below dismissed the bill, and the complainant has appealed from both decrees.
I have read the record, and find that, so far as the cause first above stated is concerned, complainant has failed to prove any material allegation of the bill excepting only the merely formal allegations. The parties still are living together, and it is the contention of complainant that the case, upon the facts, requires the application of the doctrine that the husband is head of the family and entitled to control, or at least to share in, the community property. It is said, too, that the earnings of the wife, she having worked and earned money for some 25 years, sometimes as much as $900 a year, belong to the husband, in the absence of agreement or understanding, and that she could not acquire any exclusive interest in the property in which this money has been invested.
The answer to these contentions is: First, that the bill is filed upon no such theory; and, second, that it appears that circumstances, in this instance, forced the wife to become the executive and working head of the family, and the complainant has for years recognized her right to earn and disburse money, doing business with her himself as he would with a stranger. She has sought to acquire for the sons a business in which they can earn their living, and has exercised good judgment in seeing to it that her husband did not much interfere in the management thereof.
With regard to the other cause, I find that the complainant was the owner of the property described in the bill of complaint, and that he executed a deed thereof to his wife as is alleged, and that she paid no consideration for the transfer, although it seems to be claimed by counsel for defendants that she paid him $300 for the deed. The property was worth about $3,000 and was mortgaged for $3,000. From 1885, when the deed was made, to 1907, when complainant filed his first bill of complaint, the wife appears to have paid the taxes, insurance, repairs, and interest, collected the most of the rents, borrowed money on her own account to repair and rebuild the property after it had been burned, remortgaged the place for $1,300 to procure money to buy the bill-posting business, again remortgaged it to pay for the cost of rebuilding upon the property without any interference from the complainant or any claim upon his part that he had any interest in the property. The allegation that a deed of the property was executed by defendant to complainant is not proved.
These two causes must be disposed of here as they were disposed of in the court below, and both decrees are affirmed, with costs to appellees.
Hooker, Moore, Me Ah vat, and Brooke, JJ., concurred. | [
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McAlvay, J.
Complainant filed a judgment creditor’s bill in the Wayne circuit court, in chancery, based upon a judgment rendered by a justice of the peace of the city of Detroit July 3, 1908, a transcript of which had been duly filed. From a decree rendered in said suit in favor of complainant in the usual form in such cases, the defendant has appealed to this court.
Defendant contends that the judgment of the justice’s court was void, and therefore formed no basis for a judgment creditor’s bill. This is the only question presented in the case. There is no dispute as to what the transcript of the justice’s docket shows.
The suit was commenced by a summons which was personally served, and on the return day the parties appeared, and an issue was joined in an action of assumpsit. Several adjournments were had, a deposition was taken and returned into court, and on June 11, 1908, the parties being present in court, the evidence in the case on both sides was taken. Afterwards two further adjournments were had, the last one by consent to June 20, 1908, 9 a. m. Up to this point in these proceedings no dispute arises. To show the record, and to make more clear the contention, the balance of this transcript is given. It reads:
“June 20, 9 a. m. Case called, parties in court. Defendant files brief and decision reserved to June 30, 1908, 9 a. m. June 30. Decision reserved to July 3, 1908, by consent of parties. July 3. I rendered judgment in favor of plaintiff and against defendant for two hundred fifty-five 8 /100 dollars damages, and $1.75 costs. [Signed],” etc.
The justice’s court act of the city of Detroit (Act No. 475, Local Acts 1903), as amended by Act No. 660, Local Acts 1907, among other things, provides:
“ Sec. 5. * * * They shall also have power to hold all cases for final decision not more than ten days: Provided, They announce the day upon which they will render final judgment:”
It is contended that the extension of the time from June 30th, the date fixed by the justice and being the statutory limit of 10 days, to July 3d, was without authority, and operated to oust the justice of jurisdiction of the case, and that the judgment entered upon the day last named was consequently void. It was claimed on the hearing by complainant that the extension of time was an adjournment by consent of parties. To meet this claim defend ant offered evidence tending to show that the transcript of the justice’s docket did not correctly st'ate the facts as to the extension ®£ time from June 20th to July 3d being made “ by consent of parties.” This transcript cannot be attacked collaterally. Miller v. Smith, 115 Mich. 427 (73 N. W. 418, 69 Am. St. Rep. 583), and cases cited; Cole v. Potter, 135 Mich. 326 (97 N. W. 774, 106 Am. St. Rep. 398).
The case must be determined by the construction which is put upon the justice’s act of Detroit, above quoted. At the time this extension was made the court had jurisdiction of the case under this law for the purpose of rendering final judgment. Of his own motion he had no jurisdiction for any other purpose, and must render his decision at that time. This is admitted to be the law in this State. Harrison v. Sager, 27 Mich. 476; Brady v. Taber, 29 Mich. 199. From aught that appears in this record the justice was ready to render judgment on June 30th, but the decision was reserved to July 3d by the action or consent of the parties. May it not be said that, in view of such conduct on the part of the parties, they are estopped to claim a discontinuance ? A party who, with knowledge of the facts, applies for, or consents to, an irregular continuance or adjournment, is estopped afterward to insist, to the prejudice of the other party, that the action was thereby discontinued. 24 Cyc. p. 489.
In Patterson v. McRea, 29 Mich. 258, it was held that a defendant who has requested, or at least consented to, an adjournment of a suit in justice’s court on account of the sickness of the justice, will not be heard to complain that such adjournment was on the justice’s own motion, and, being for more than six days, worked a discontinuance so as to deprive the justice of jurisdiction to further proceed with the cause. The above case was cited and applied in Blair v. Compton, 33 Mich. 414.
In Fischer v. Cooley, 36 Neb. 626 (54 N. W. 960), where adjournment beyond 90 days, under the statute, worked a discontinuance of the cause, and ousted the court of jurisdiction, it was held that the rule was otherwise where such continuance was granted by consent, or on the agreement of the parties. The party on whose application a cause in justice’s court is adjourned beyond the period limited by the statute is estopped to claim a dismissal by reason of such adjournment. To permit him to do so would be to allow him to reap a benefit from his own acts to the prejudice of the other party. Jennerson v. Garvin, 7 Kan. 136; West v. Berg, 66 Minn. 287 (68 N. W. 1077).
In Beam v. Reynolds, 144 Mich. 383 (108 N. W. 83), it was held that a second adjournment by a justice, on motion of the plaintiff, defendant and counsel being present and making no objection until after the departure of plaintiff, was equivalent to an adjournment by consent. In that case Justice Hooker, who wrote the opinion, said:
“Ordinarily, a second adjournment, in the absence of the defendant, is fatal, unless upon a motion supported by the oath of some one. In this case the return shows that the defendant and counsel were present, and did not object to the granting of the adjournment until after the plaintiff had gone. This was equivalent to an adjournment by consent. Tiffany’s Justice’s Guide (1905), p. 303; Dunham v. Heyden, 7 Johns. (N. Y.) 381; Kilmore v. Sudam, 7 Johns. (N. Y.) 529; see, also, Patterson v. McRea, 29 Mich. 258.”
The ruling in the above case is perfectly consistent with the ruling in the recent case of Adams & Ford Co. v. Cullen, 159 Mich. 669 (124 N. W. 549), where it was held that a justice loses jurisdiction by adjourning a case, without showing on oath that it is necessary, the adjournment being for the purpose of obtaining a surety, and against the objection of the defendant.
The adjournment in this case having been made by and with the agreement of the parties, we think that it better comports with justice to hold the parties to their agreement, and apply the doctrine of estoppel.
The decree of the circuit court is affirmed’, with costs.
Hooker, Moore, Brooke, and Stone, JJ., concurred. | [
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Moore, J.
The plaintiff was a passenger on one of defendant’s trains on the night of December 6, 1906j to be carried from Yassar, Mich., to Detroit, Mich. When the train arrived at a point between Millington and Otter Lake a wreck occurred. The car in which plaintiff was a passenger rolled down an embankment and plaintiff was seriously injured. After plaintiff had put in all his testimony, the defendant moved the court to direct a verdict, which the court did, on the ground that plaintiff had failed to introduce sufficient evidence of negligence on the defendant’s part to require the court to submit the case to the jury. Plaintiff bases his only assignment of error on this action of the court.
Plaintiff testified in part as follows:
“The train consisted of engine, tender, baggage car, smoker, ladies’ coach, and parlor car, in the order in which I have mentioned them. Between Millington and Otter Lake, about three and a half or four miles south of Millington, and two or three miles from Otter Lake, we felt the bounding of the cars on the tracks, and I jumped for the hat rack, and the car went over the embankment, and I struck my back to the ceiling. The coach I was in went over down the embankment, which was 12 or 15 feet deep.
“ Q. You say you grabbed for the hat rack. Then state what occurred.
“A. I grabbed for the hat rack, and I hung on, and the car went over the embankment and I struck my back to the ceiling, and I slipped from the hat rack and I came to in the vestibule — the vestibule to the south.
“ Q. Did the car turn over ?
“A. Yes, sir. After we got out of the car we walked north to see what had caused the accident.
UQ. How far up north did you go ?
“A. North about the distance of a block and a half here.
“ Q. That is, towards Millington ?
“A. Towards Millington.
‘Q. What, if anything, did you find there as to tracks and the ties ?
“A. The east track was spread and the spikes were partially pulled out.
“ Q. What was the condition of the ties ?
“‘A,, The ties were rotten.
‘ ‘ Q. Did you notice the holes where the spikes were pulled out ?
“A. Yes, sir.
“Q. Just describe what condition those ties were in as to spike holes and rails and everything that you saw.
“A. The spike holes were grown larger, loosened by spikes, and the rail had spread, oh, probably five to six inches at the place; maybe only four, and the track did not meet at the east side; that is, the east track the plates had broken and they did not meet.
“Q. Did you notice the mark of the flange of the wheel on the ties ?
“A. The flange marks, yes.
“Q. Where did that begin ?
“A. Where the rail was loose.
£ £ Q. Did you examine whether the rail was loose or not ?
“A. I did.
“Q. How far from this place that you describe that condition was it to the place where the cars had turned off and gone down the embankment ?
C,A. Probably 30 rods.”
There was considerable other testimony to the same effect. We do not think it can be said, as a matter of law, that defendant was free from actionable negligence. See Hamilton v. Railroad Co., 135 Mich. 95 (97 N. W. 392); Whipple v. Railroad Co., 143 Mich. 41 (106 N. W. 690); Parker v. Station Ass’n, 155 Mich. 72 (118 N. W. 733).
Judgment is reversed, and new trial ordered.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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McAlvay, J.
This is a case in some respects similar to the case of Backus v. Cowley, ante, 585 (127 N. W. 775). From the record in that case we find that,
“ By agreement between solicitors for both parties and the court, testimony was taken to apply in this cause and also in the case of Newton D. Backus, Adm’r, v. John H. Killmaster, as far as might be competent.”
We also find a statement in this record to the same effect. In the certificate to the record in this case is contained a protest by counsel for appellee in a measure restricting the agreements of record made in both cases in open court by insisting that opposite counsel shall not in this case make reference to the first case. Counsel on both sides are bound by the above agreements upon which this court has acted in the examination and determination of both cases, and counsel have the right to make all proper and necessary references in each case to the other. The instant case involves two of the descriptions of land, the title to which was in dispute in the other case, and which are the descriptions in that case stated to have been conveyed by defendant Cowley to defendant Killmaster. The determination of this court in that case declaring the title in Cowley void and that defendant Killmaster acquired nothing by the transfer from her makes it unnecessary in this case to consider that question.
Defendant Killmaster in this case also claims title to this land through other tax sales for the years 1902 and 1904 made by other parties and by quitclaim deeds from them to Killmaster. Afterwards he sent to Mrs. Backus, at Detroit, the statutory notice that he held a tax deed on the lands for the year 1902, giving the amount required to redeem each description. Within six months thereafter Mrs. Backus gave such notice with money sufficient to redeem to her son to send the required amount to make such redemption. For the purpose of transmitting this money, he obtained a post-office money order at Detroit for the full amount, payable to Greorge Rutson, who was register in chancery, and the proper officer to receive such redemption money, and inclosed the same in a letter stating its purpose, and sent it to him. It was duly received and accepted by him, and he on the same day, and before the expiration of the six months, personally told defendant that he had received the same to pay for the redemption from said tax title. He indorsed the order and offered it to defendant for that purpose, but defendant would not take the money order for the reason that he claimed it was not legal tender and therefore refused to receive it. Defendant did not offer or tender to said officer any tax deed, receipt, or quitclaim deed, or reconveyance. The money order was retained by this officer during the balance of his term of office, and passed over by him to his successor in office. Mrs. Backus, hearing of this situation, and that defendant claimed title under the tax deed from which she thought she had redeemed, caused the bill of complaint in this case to be filed praying to remove the cloud of said tax deed from her title, and that such deed be decreed to be delivered up and canceled, and defendant be decreed to convey to her all of his interest in said lands. Defendant answered, asking affirmative relief in the nature of a cross-bill. Issues were joined and a hearing had. The court denied complainant any relief, dismissing the bill of complaint, and granting defendant a decree confirming his title in fee simple to the land.
The only question necessary to discuss in this case is whether complainant’s decedent complied with the law and redeemed her land and was entitled to a reconveyance. , Defendant’s contention and defense is entirely technical, and we think absolutely without merit. It is not disputed but that Mrs. Backus transmitted a sufficient amount of money within the required time to the proper officer to satisfy defendant’s demand, and he was notified by such officer. She can be required to do nothing more if her method of transmission was legal. After notice of what she had done, the duty rested upon this defendant to offer his reconveyance and demand his money. The conduct of this register in chancery was not very creditable. He was an old officer, and, as he testifies, well acquainted with these transactions. He had received post-office orders before, and knew that, when he paid the money to a tax title holder, he should receive the deed, etc., as the law provides. Instead of taking the ordinary course, he indorsed the order to Killmaster, who declined to accept it. This the officer did contrary to the instructions of the letter of transmission. The inference from his testimony is strong that he did so because he was unfriendly with the Backus people. It is not to the credit of defendant that he was willing to take advantage of this conduct, evidently because the time for redemption expired the next day. It is a matter of common knowledge that the transmission of money by post-office order is lawful, customary, and safe. This post-office order received by the register in chancery, kept and indorsed by him, amounted to a payment by Mrs. Backus for the purpose indicated in the letter to him. Because of the conduct of this officer, she, having done all that was required by the law to redeem her lands, will not be held to be in default, and, in such case—
“Equity will take notice of the facts as entitling the party to relief, and will hold the redemption which has failed in form, to have been effected for all purposes of protecting the estate against a forfeiture.” 2 Cooley on Taxation (3d Ed.), p. 1048.
Whether defendant had the deeds as claimed or not to both descriptions of this land is of no consequence. Complainant so understood at the time, and acted upon such understanding.
The amount paid covered both descriptions. The statute provides that — “By such payment the tax title * * * shall become void and of no' effect against the lands thus redeemed.” Act No. 226, Pub. Acts 1905, § 141. Consequently complainant was entitled to the relief asked. The decree dismissing complainant’s bill of complaint and granting defendant affirmative relief is reversed, and a decree will be entered in this court granting complainant full relief, declaring the tax title of defendant á cloud upon her title, and declaring it void and to be delivered up to complainant for cancellation, and that defendant do reconvey all of his claimed right, title, and interest in said lands and produce and surrender all deeds and papers as provided by law in case of payment, and, in default thereof, that such decree duly recorded shall stand as and for such reconveyance, and, if by the conduct of the register in chancery complainant has lost the money sent to him, defendant be left to his remedy, if any he has, against said officer, if otherwise, complainant do pay into court for said defendant that amount less costs of this suit, and that complainant recover against defendant costs of both courts, to be taxed.
Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred. | [
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Ostrander, J.
There were negotiations between the parties for a lease of 77% acres of land for a term beginning April 1, 1907, and ending April 1, 1910, at a rental of $3 per acre per annum, payable $6.25 each month and the balance at the end of the year. It was agreed that a written lease, with these terms, should be executed. Defendants were at the time in possession. Plaintiffs and defendants each prepared a form of lease. The one prepared by defendants permitted them, at their option, to remain five years, and contained a provision that the landlord was to make certain repairs. No lease was executed. Plaintiff James Gault took away the form of lease which he had submitted and had left with defendants, saying, in substance, that defendants were on the farm without right. A notice to defendants, or to one of them, was served on August 25, 1907, stating that defendants were required to vacate the premises on April 1, 1908, to put in no fall crops, with the further statement that the extension of time to April 1, 1908, was made upon the express condition that the rent due should be paid, and that defendants “comply with all the terms of the agreement under which you rented said farm and personal property.” Another notice was given in September, 1907, requiring defendants to quit and surrender possession of the premises “ or pay us the rent now due for said premises.” In September, 1907, a suit in chancery was begun by plaintiffs, and from the decree entered in the cause an appeal was taken to this court, where the decree was reversed and the bill dismissed. Gault v. Gault, 158 Mich. 803 (122 N. W. 639). A notice to quit or pay rent was served June 6, 1908, proceedings pursuant thereto were begun before a circuit court commissioner to recover possession, and were ended by the payment of $243.50 on June 24, 1908, for which money plaintiff receipted as for rent to June 1, 1908. Thereafter rent at the rate of $6.25 per month was paid to February 1, 1909. No rent has since been paid.
The present proceeding was begun in April, 1909, without the serving of any other written notice, the complaint setting out, generally, that plaintiffs are landlords of the said premises and defendants tenants under them, who hold the premises unlawfully and against the rights of complainants. The commissioner on May 11, 1909, rendered a judgment of restitution. It does not appear from his return that he found any rent to be due or that he found the complainants entitled to the possession on account of the nonpayment of rent. In the affidavits for leave to appeal is to be found the statement that the commissioner entered a judgment against defendants for $162.25 rent, and a like statement is incorporated in the motion for leave to appeal. In the circuit court the jury was instructed to return a verdict of guilty, or not guilty, as they found certain facts to be. The judgment of the circuit court is one for restitution of the premises. We assume, therefore, that the proceeding was brought, not because rent was due and unpaid, but upon the theory that the tenancy, whatever its nature, had been determined, for which reason defendants were unlawfully in possession.
Appellants argue two propositions, stated in the brief as follows:
“First. That the circuit judge should have directed a verdict for the defendants for the reason that, under the agreement entered into between the parties, a tenancy from year to year was created, which tenancy was not terminated by the statutory notice of one year.
“ Second. That if there was a question of fact to be submitted to the jury, the conduct of the trial judge during the trial was such that defendants were deprived of a fair and impartial trial.”
It was a part of the agreement of the parties that a written lease was to be executed. This appears both by the testimony given in the case at bar, and by the pleadings in the chancery suit which has been referred to. It therefore is not the case of leasing land, by parol, for a period longer than a year. It is the case of a parol agreement to make a written lease for a term which could not he created by parol. The parties contemplated no such thing as an arrangement out of which would arise what is known to the law as a tenancy from year to year. Of the legal effect of letting defendants into possession under the circumstances stated, two things may be said. One is, that, upon the refusal of the defendants, if they did refuse, to execute a lease as agreed, the landlord might have immediately repossessed the premises. It would be a singular rule of right, and therefore a singular rule of law, which would permit defendants to build any right of continued occupancy upon their refusal to execute the contract agreed upon, to create a relation different from the one agreed to be created. And, whoever is responsible for the nonexecution of the lease, it is clear that defendants are not holding under any agreement, whether enforceable or not, for a term. The other is, that, the landlord, without taking proceedings to dispossess them or to compel (them to execute the lease agreed upon, notified them they might remain in possession for the period of one year, provided they paid rent, etc., in accordance with the oral agreement. It cannot be said there was a contract for leasing for a year. There was possession by the tenants and acquiescence therein by the landlord, upon terms mutually understood.
If it can be said that the landlord was by his action precluded from terminating the tenancy during the year, it gave defendants no right to remain longer than a year. The landlord, at the expiration of the year, took no action to dispossess defendants except by proceedings in which restitution could not be awarded if defendants paid the rent found to be due. Defendants paid and he accepted the rent due for the first year and thereafter to February, 1909. After the first notice, he gave no other written notice except such as demanded possession or rent, in the alternative. This conduct is inconsistent with the theory that the tenancy had been terminated by any notice, oral or written. It is consistent with the theory that defendants were holding over, by acquiescence of the landlord, after the first year. What, then, was the nature of the tenancy ? Unless the facts distinguish this case from Huyser v. Chase, 13 Mich. 98, it was a tenancy at will, determinable by a three months’ notice to quit. See, also, Schneider v. Lord, 62 Mich. 141, 142 (28 N. W. 773 ). The facts do distinguish the cases. There the premises were a house and lot on Woodward avenue, in Detroit; here a farm. In that case, it is true, an annual rent was reserved, but it was payable in equal monthly installments. Here an annual rent is reserved, but the greater part of it is payable at the end of the year. What the parties did during the first year, considered with what they had agreed the rent should be, was equivalent to a verbal stipulation for rent at an annual rate, payable, the most of it, at the termination of an annual period. The reasonable presumption is, in such a case, that if the tenant is permitted to hold over, he holds for the annual period. We are of opinion that the tenancy was not strictly a tenancy at will. Nor was it a tenancy from year to year. There was never a lease, parol or other, for a term of years. The rights of the parties rested upon conduct of the parties after the neglect or refusal to execute the written lease. The most that defendants can claim is that, if they held over after the expiration of an annual period, they were in for another annual period. They were liable to be dispossessed at the end of any year, without notice.
Plaintiffs expressly permitted defendants to occupy for one year. They acquiesced, as we have seen, in the occupancy for the second year. The third year began April 1, 1909, and on the 30th day of that month complaint was made. Ought the elapsing of this time to be held to entitle defendants to remain in possession for the period from April 1, 1909, to April 1, 1910? As we have seen, the question must be decided without reference to the original agreement for a term of three years. There was no consent of the landlord, express or implied, for continued occupancy, unless consent may be implied from the lapse of time. Often mere lapse of time may estop the landlord, as well as the tenant, to deny the further relation of landlord and tenant. In some cases, it may be a question of fact for the determination of a jury. In this case no one claims that plaintiffs consented, in fact, or could be induced to consent, to allow the defendants to remain any longer on the land. There was much feeling between the parties. In the chancery suit it had been determined and decreed in the court below that defendants’ rights expired March 31, 1909. It is the testimony of one of the defendants that in April, 1909, he “ was thrown off the farm.” We are of opinion that the undisputed evidence negatives consent, and that the court below should -have directed a verdict-of guilty to be returned. Being of this opinion, it is unnecessary to consider the second proposition of the appellants.
The judgment is affirmed.
Hooker, Moore, McAlvay, and Blair, JJ., concurred; | [
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Ostrander, J.
The action is trespass on the case. A verdict for the plaintiff was rendered October 12, 1909. On October 15, 1909, an order was made staying proceedings for 20 days, extending the time to move for a new trial 30 days, and the time to settle a bill of exceptions 60 days. November 5, 1909, judgment was entered on the verdict. Orders succeeded each other thereafter as follows : November 19, 1909, time to move for a new trial extended 20 days more; January 6, 1910, motion for a new trial denied; January 28, 1910, time to settle bill of exceptions extended 60 days; April 2, 1910, motion to set aside the order of January 28th denied; April ?, 1910, bill of exceptions settled as of April 2, 1910; April 9, 1910, motion to set aside order settling bill of exceptions denied. The order of January 28, 1910, was made without cause being shown and without notice. The question presented by the petition is whether that order should be vacated.
We held in Harper v. Wayne Circuit Judge, 155 Mich. 543 (119 N. W. 913), that the provisions of the stat ute regarding the settlement of a bill of exceptions were to be construed in connection with the rule of the court (Cir. Ct. Rule 47) and with 3 Comp. Laws, § 10504, and that by construction appellant had a reasonable time after the denial of a motion for a new trial in which to'settle a bill of exceptions, and had 20 days after such denial as matter of right. In that case an application for an extension of time was made within 20 days, was denied, and a writ of mandamus was issued to compel the entry of an order giving the appellant a reasonable time in which to settle the bill of exceptions.
In the case at bar, the order of October 15, 1909, allowing a 60-day extension of time in which to settle a bill of exceptions, expired January 3, 1910, if we reckon from the date of entry of the order. Reckoning from November 5th, the day when judgment was entered, the 60 days expired January 4, 1910, and the date when the further order extending time in which to settle bill of exceptions was entered was 84 days after judgment, and 22 days after the motion for a new trial was denied.
Following Harper v. Wayne Circuit Judge, supra, we hold, upon the facts stated, that appellant had a right to settle a bill of exceptions at any time within 20 days after the denial of the motion for a new trial, and that within that time the court below had jurisdiction, upon motion and upon cause shown, to extend reasonably the time to settle a bill of exceptions. The court had no jurisdiction within said 20 days to extend the time to settle a bill of exceptions, except upon notice and for cause. It had no jurisdiction after the expiration of said 20 days, and after the expiration of 80 days from entry of judgment, to extend the time to settle a bill of exceptions for .cause.
The rule of practice is this: A party has 20 days after judgment, as matter of right, in which to settle a bill of exceptions. The court may extend this time for 60 days. The court may make no other or further extension of time for settling a bill of exceptions in any case, except upon notice and cause shown. A party has 20 days after denial of motion for a new trial in which to settle a bill of exceptions; the motion for a new trial having been seasonably made and brought on for hearing in a reasonable time. Within said 20 days the court may, upon notice- and for cause, grant a reasonable extension of the time. Neither the statute nor the rule, nor any order of the-court made pursuant thereto, may operate to extend the-time limited by the statute in which to take out a writ of error.
The order of January 28, 1910, should be vacated, as-well as the order settling the bill of exceptions. Relator will recover costs of this motion of the Detroit United. Railway.
Writ granted.
Hooker, Moore, McAlvay, and Brooke, JJ., concurred. | [
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Ostrander, J.
The parties were married in 1880 and lived together until December, 1897, when they mutually agreed to separate and live apart from each other.. They executed an instrument which recites the agreement, and makes provision for the wife, in consideration that she release her husband from the duty to support her, and bars her homestead and dower rights in certain real estate which is described therein. The instrument is witnessed and duly acknowledged. Later, we assume in October in the year 1907, complainant filed her bill against defendant for a divorce, and for alimony, setting up that after the separation in 1897 their marital relations were resumed at different times, the last time, in the summer of 1907, and charging defendant with repeated acts of extreme cruelty. She asked for permanent alimony. There was an answer and replication, a hearing in open court, and a decree finding the charges of extreme cruelty sustained. The marriage was dissolved, and permanent alimony was awarded. Defendant, appealing, does not ask to have the decree dissolving the marriage reversed, but only that the provision made for the wife at the time of their separation in 1897 be held to be a fair division of the property, and, as it was executed, a bar to the allowance of alimony. It is also claimed that the amount awarded as alimony is, in any event, excessive. It is unnecessary to set out the testimony. We find, as did the court below, that the parties after their first separation resumed marital relations, ended them, and again resumed and ended such relations, upon the promises of defendant, each time broken, to desist from conduct not only reprehensible but criminal. The agreement to separate was therefore abrogated (Knapp v. Knapp, 95 Mich. 474 [55 N. W. 353]), and the conduct of the parties, in other respects, indicates that they regarded it as abrogated. Indeed, it is urged that defendant later on made other considerable provision for complainant. Complainant’s right to permanent alimony was not barred, and we are not satisfied that the court made an unfair division of the property.
The decree is affirmed.
Hooker, Moore, McAlvay, and Brooke, JJ., concurred. | [
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