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McAlvay, J.
This was a suit brought against defendants upon an indemnity bond given by William H. Hibbler as principal, and defendant company as surety, to recover damages by reason of the failure of defendant Hibbler to build and complete according to contract a certain house for $3,MS; such bond having been given by defendant company to guarantee the faithful performance of such contract. On the first trial plaintiffs recovered a judgment for $1,362.04. A motion for a new trial was made on the part of defendant company upon the grounds, among others:
“ That the bond sued upon provided that suit must be commenced within six months from the date of the first breach, and that the suit was not so commenced; that plaintiffs relied upon a waiver made by the local 'agents of the company; that no evidence was offered showing that the local agents had any authority to waive this provision of the bond; and that they could not be presumed to have such authority.”
The above quotation is taken from plaintiffs’ brief. It is not contradicted by defendant, although this brief was filed about 30 days before appellant filed either of its briefs. Upon this motion the court granted a new trial to the defendant surety company. This new trial was had, and resulted in a verdict instructed for plaintiffs, for the amount of the judgment recovered on the former trial, which the record shows then stood against Hibbler unsatisfied. Defendant Hibbler took no part in the motion for a new trial or in the trial which followed. The cause, after a judgment duly entered upon the directed verdict, has been removed to this court for review upon writ of error.
Appellant contends that the ’ judgment should be set aside for the reason that the court erred:
(1) In admitting the judgment recovered upon the first trial in evidence against defendant upon this trial.
(2) In refusing to hold that defendant surety company was discharged from liability, because of failure of plaintiffs to notify it of Hibbler’s default, as required by the terms of the bond; and also because suit was not instituted within six months after the first breach of the contract.
The bond upon which recovery was sought was a joint and several bond. The undertaking of defendant company, the surety, was the faithful performance of the contract by Hibbler, the principal. Appellant urges under its first assignment of error that granting its motion for a new trial vacated and set aside the entire judgment in the case. The declaration in the case contained two counts, one of which counted upon the bond, claiming a joint and several liability, and the other contained the common counts, under which appellant urges the liability was joint, and it is claimed that the recovery obtained on the first trial, as far as the present record shows, could have been under either count.
It is true that this record does not give the testimony given on that trial, the motion for a new trial by appellant, or the reasons of the trial judge in granting it. This question that anything other than the matter of the default of Hibbler on his contract, and the liability of appellant as surety upon this bond, was litigated on the first trial, as far as we are able to discover from the case before us, appears for the first time in appellant’s brief. We find that counsel for appellant, who was present and participated on both trials, appears to have held a contrary opinion from that expressed in the brief. The record returned to this court shows that the order made upon granting appellant’s motion for a new trial was “ for a new trial for defendant the Fidelity & Deposit Company.” This was also the statement made by appellant’s counsel upon this trial. No claim is made in the record that such was not the fact. The record shows that upon this status of the defendants, accepted by appellant, its counsel moved for an instructed verdict, after the opening statement by plaintiffs’ counsel, in the following language:
“ It appears from the opening statement of counsel that this case was tried upon a bond, and that a verdict was had against both defendants. As to one of those defendants, the judgment was practically set aside by an order for a new trial. I submit that judgment is still valid as against the other defendant, * * * and it stands as a valid judgment against the defendant Hibbler. * * * ”
Again, at the close of plaintiffs’ case, appellant, having no testimony to introduce, moved for a directed verdict because—
“There has been no proof adduced that the judgment against Hibbler has not been satisfied. They cannot recover a judgment against the surety if the judgment against the principal has been satisfied.”
This last motion was made after the court had admitted the judgment against Hibbler in evidence, which is the principal error claimed to have been committed.upon which appellant relies. The record shows that when the Hibbler judgment was first offered appellant’s counsel objected, saying:
“ This is a new trial. I do not propose to be foreclosed by any testimony in the former trial.”
The judgment entry was admitted but not read in evidence. No exception was taken. The record shows that later the judgment was offered in evidence—
“ To which offer objection was made by the defendant ■on the ground that in that case a joint verdict was rendered upon which judgment was entered. Upon application of the defendant, Fidelity Company, a new trial was granted to it.”
This objection was overruled, and the judgment admitted as prima facie evidence of the amount of damages, ;and an exception was taken. This is all that appears in this record relative to the judgment against Hibbler and its introduction in evidence. It appeared upon proof in the case that the judgment against Hibbler was unsatisfied.
It cannot be said from this record that at any time during the trial did appellant question a valid and subsisting judgment in the case against defendant Hibbler. The theory of appellant was, not that granting it a new trial vacated the judgment against Hibbler, nor was the introduction of the judgment objected to on that ground, but under the theory that, having been granted a new trial, it was entitled to have all of the testimony necessary to establish a case against Hibbler, the principal in the surety bond, presented anew in this case. The issue upon the two trials was identical, as appears from this record and the admissions of appellant contained in it. The case' was tried upon the first count of the declaration.
Under the circumstances of this case, in an action upon a bond where the liability is joint and several, brought against both defendants, and a judgment rendered against both, must the court hold as a matter of law that granting a new trial to the surety, where the default of the' principal is not questioned, operates to vacate the judgment against the principal ?
It seems clear that plaintiffs at any time might have discontinued as to the surety and recovered against the principal. The court might have instructed the jury to find for defendant surety, provided the evidence so warranted, and allowed a recovery against the principal, and in either case in a later suit against the surety the judgment against the principal would have been admissible. An unsatisfied judgment against the principal of a joint and several obligation is not a bar to recovery against a surety. 2 Black on Judgments (2d Ed.), § 774; 1 Freeman on Judgments (4th Ed.), § 334.. The general rule is that a judgment against a principal is prima facie evidence against the surety with notice of the proceeding. Norris v. Mersereau, 74 Mich. 690 (43 N. W. 153), and cases cited; Moses v. U. S., 166 U. S. 571 (17 Sup. Ct. 682); United States Fidelity & Guaranty Co. v. Haggart, 163 Fed. 801, 91 C. C. A. 289, and cases cited.
What different relations existed between these parties than in case of a judgment against a principal introduced as prima facie evidence against a surety in a separate proceeding ?
The case is unique, in that judgment against the principal was rendered on a former trial of the identical case. Appellant cannot complain. It has made the situation possible, and had notice of the proceeding and participated in the trial in which the judgment was rendered against Hibbler. It secured for itself a new trial, and now objects that the Hibbler judgment is of any force against it. Its liability is no greater or less than if two suits had been instituted, or the judgment first rendered in the case against both had not been disturbed. Our conclusion is that the court was not in error in admitting the judgment against Hibbler, as prima facie evidence against the surety upon this trial.
The remaining error discussed relates to the claim that appellant was discharged from liability, because of the failure of plaintiffs to notify it at once of Hibbler’s first default, and because suit was not brought within six months after the first breach of the contract.
The uncontradicted proof in the case shows that notice of Hibbler’s default was promptly given to the general agents of appellant, who, from the time of seeing the bond, acted for defendant company; one of the firm signing the bond for it as attorney. In fact, they were actively engaged with the plaintiffs in all that occurred after Hibbler’s default. Crystal Ice Co. v. United Surety Co., 159 Mich. 102 (123 N. W. 619).
It also appears that through these agents, and from plaintiffs’ letters relative to Hibbler’s default sent direct to appellant, no claim was made that notice had not been properly given. To digest this evidence would be of no benefit. As to the delay in bringing suit within six, months, the record shows the negotiations in regard to the • matter of the Hibbler bond were pending for some time, and that more than six months after the first notice given appellant instructions were given by its vice president to plaintiffs to complete the building at the least possible expense, thereby recognizing its liability and waiving any forfeitures by plaintiffs if any had occurred.
The evidence presented by this record justified the court in directing a verdict for plaintiffs.
The judgment is affirmed.
Ostrander, Hooker, Moore, and Brooke, JJ., concurred. | [
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McAlvay, J.
The bill of complaint was filed in this case by complainants against defendant to foreclose a cer tain land contract, claiming a balance due and unpaid. The contract in question was entered into between the parties December 3, 1904, wherein complainants, who claimed to own the title in fee of the premises, agreed to sell, and defendant to purchase, “ all that certain piece or parcel of land situate and being in the village and county of Newaygo, State of Michigan, and described as lot 14 in block 116 of the village of Newaygo, according to the map or plat on record in the office of the register of deeds of Newaygo county,” for the consideration of $500 with interest at 6 per cent.
Payments were to be made at certain times, and all of the purchase price except $100 and interest thereon had been fully paid at the time the suit was instituted. The terms of the agreement are the ones usual in the ordinary short form land contract, and, among other things, complainants covenanted that, upon the fulfillment of its conditions by defendant, by a good and sufficient warranty deed, to convey to him said premises as described. The bill alleges that defendant immediately went into possession of said lot and moved into the house situated thereon, and has since continued in such occupancy. The answer of defendant in the nature of a cross-bill admits the execution of the contract and the payments made, and that complainants claimed at the time to be owners of said lot as described in fee, but denies that they were in possession of the whole of it, or that they ever gave to him, or he ever received from them, such possession; that he never discovered this fact, or that the premises of which he received possession were not the premises described in the contract, until after he had paid $400, principal and interest on the contract, when, in having a survey made, because of a dispute with an adjoining owner relative to the lines of some other lots, it appeared that Mr. Boyd, who owned lot 13 next east of this lot 14, was and had for many years been in possession of the east 23 feet and 2 inches of the same. Defendant notified complainants of this fact January 9, 1909, in writing, stating that the balance of the purchase price was ready, and that they dispossess Boyd and give him possession. This notice was given before complainants made offer of a deed, and defendant’s offer is continued in his answer. He asks for affirmative relief, that complainants be decreed to deed to him all that part of lot 14 of which they have the legal right of possession, and to account to him for over-payment. An answer was filed to the cross-bill and issues were joined. A hearing was had, and a decree granted dismissing the cross-bill and granting complainants relief as prayed. The amount fixed as due to them was $109. In default of payment of this amount lot 14 of block 116 was ordered sold, etc. Defendant on appeal asks for a reversal of this decree.
The record shows without dispute that Mr. Boyd, owner on this block No. 116, next east of lot 14, which is described in the contract, had for more than 20 years occupied 23 feet and 2 inches of said lot according to the recorded plat thereof. It appears that this lot was located in the southwest corner of the block; the plat showing that it was 66 feet fronting on Quarter Line street, and 165 feet deep, with Third street on the west side of it. The accuracy of the survey made by the county surveyor is not disputed. Third street on the plat runs north from Quarter Line street apparently to the river, but the record shows that 132 feet beyond the northwest corner of lot 14 the abrupt bank pitches down to the river 400 feet. Defendant also owns lot 1 of block 116 directly north of lot 14, and fronting 66 feet on Third street which is the only way of ingress or egress to and from lot 1 and the lot next north of it. It appears that at the time the contract between these parties was made there was a fence across Third street, and the land had been at least partly cultivated by complainants’ father, who was then owner of lot 14, and but part of this street was used as an alley by the owner of the premises on the west side of it. There was no fence on the west side of lot 14 along Third street. Defendant after he moved in used and cultivated about three rods of Third street west of lot 14. The barn on this lot was built partly in this street. At the time of making the contract complainants’ property, sold as lot 14, according to the recorded plat, apparently extended from the old fence up to which Mr. Boyd occupied, west partly across Third street, and was shown to defendant by one of the complainants, and defendant supposed that this was in fact lot 14, and did not know the difference until the survey was made. The next year after he entered into possession, an ordinance having been passed restraining cattle from running at large, he took down this fence across Third street. These detailed facts are material only as bearing upon the proposition that these premises which defendant viewed and purchased as lot 14 presented the physical appearance of a full-sized lot. The record shows little or no diagreement upon the facts presented.
The first material and undisputed fact is that complainants covenanted to convey to defendant this lot 14, according to the recorded plat thereof, and it also appears undisputed that complainants could not then and could not at the time of their proffer of a warranty deed and demand for the balance claimed due, convey or put defendant in possession of the whole of such lot, for the reason that Boyd, the owner of lot 13 next east, had been for many years in open occupancy of the east 23} feet of lot 14. As soon as defendant discovered this fact he notified complainants. The record shows that complainants’ father knew of this occupancy by Boyd, and recognized the old fence as the line between lots 13 and 14. Defendant contends that complainants are bound by their contract according to its terms; that by reference to the recorded plat it became a part of the contract, and that he is entitled to a conveyance of all the premises contained in the lot purchased according to the plat; that complainants not being in a position to convey to him all of said lot, he is entitled to an accounting, and a repayment of the excess he has overpaid, and a conveyance of such part of said lot as he has actually received from com plainants. Complainants contend that defendant is concluded by acquiescence of his grantors for many years, as to the east line, and that by the occupation of the street on the west complainants acquired title to it, and defendant in fact will receive more than 66 feet front on Quarter Line street; that the testimony offered to show where the east line of lot 14, according to the recorded plat, was actually located, was inadmissible, because a court of law and not of equity should determine such question. Defendant is not seeking to disturb any rights acquired by Mr. Boyd by reason of acquiescence by complainants in the line between lots 13 and 14. Admittedly they cannot convey to him title to all of lot 14 according to the recorded plat. He asks that complainants who demand specific performance of this contract on his part, or a forfeiture by foreclosure, shall do that which is equitable.
The question is, Are they entitled to the relief they seek ? More than one-third of this lot never belonged to complainants. Whether at the time of entering into the contract complainants believed that they owned it is immaterial. As far as the proposition of law is concerned they might have intended to purchase it, or, if it was incumbered, have expected to remove the incumbrance. They are bound by the terms of their contract. They agreed to sell all of the land described. To grant them the relief asked would operate to allow them to take advantage of their own default. Specific performance of a land contract will not be granted where the vendor is unable to perform, but the purchaser may elect to proceed pro tanto, with an abatement in the purchase price for the deficiency. 26 Am. & Eng. Enc. Law (2d Ed.), p. 116; Pomeroy on Contracts (2d Ed.), § 347 et seq. It is immaterial what the form of the action may be if the relief sought be identical. This principle is applicable to this case.
Defendant by proper pleadings had asked the court to equitably determine the rights of the parties. He is willing to accept ,a warranty deed for the portion of the prem ises complainants own, but asks that they account to him for overpayment already made. He should have been given the affirmative relief he asked. It is in accord with sound principles of equity, and is supported by reason and authority. The court, having obtained jurisdiction of the subject-matter and the parties, was authorized to finally determine the dispute.
The decree of the circuit court must be reversed, because there is no evidence in the case from which this court can determine the amount which should be deducted from the contract price by reason of complainants’ default in title to 23£ feet of this lot, and how much less said premises are worth by reason thereof. The case must be remanded for the purpose of taking testimony upon that question to determine that amount, and also to determine the amount defendant has overpaid, if any, and the interest thereon, and all other interest to which he is entitled, and that thereupon a decree be entered in his favor for a conveyance by warranty deed to him of 42f feet of said lot, and for a money judgment for the amount to which he is found to be entitled over and above his payments, with interest from August 20, 1909, and that he recover all costs of both courts to be taxed.
Ostrander, Hooker, Moore, and Brooke, JJ., concurred. | [
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Brooke, J.
During the year 1907 and a part of 1908, defendant maintained a stockbroker’s office in the city of Grand Rapids. He was not a member of any stock exchange, but wired all orders to Stapely & Co. of Cincinnati. That concern failed on May 9, 1908, and defendant ceased doing business on the same day. The plaintiff, a young lawyer, working for a salary of $75 per month and having practically no other resources, had certain dealings with defendant as follows: October' 22, 1907, bought 10 shares of American Car & Foundry at 27£, upon a margin of 5 points per share, or $50. December 12, 1907, bought 10 shares American Locomotive at 35£. March 24, 1908, sold same at 42J, making a profit of $70. January 27, 1908, he ordered from defendant 10 shares Missouri Pa eific at 48J, upon a margin of 10 points, paying thereon $100. February 17, 1908, this stock having receded in value, he paid $50 additional thereon. May 7, 1908, he ordered from defendant 10 shares Western Union Telegraph at 51f, upon a margin of 10 points, paying nothing upon the purchase. As to each of the last two deals, plaintiff was notified in writing by defendant that the stocks so ordered had been purchased for plaintiff’s account. On May 9, 1908, defendant’s principal having failed, he closed his business; no settlement having been made with plaintiff on the last two purchases. On May 83, 1908, plaintiff wrote to defendant that he desired to pay the balance due upon the two lots of stock and receive the same. On August 89,1908, another letter to the same effect was written. Defendant paid no attention to either letter. On January 81, 1909, plaintiff tendered to defendant the sum of $840, being the amount due thereon with interest at 5 per cent, from the date of the purchase, and demanded delivery of the stock. In the meantime, both issues had increased largely in value, so that upon the day the tender was made the market value of the 80 shares was about $563 in excess of the amount of the tender. Settlement having been refused by defendant, plaintiff brought suit and recovered a judgment for the above amount, with interest to the date of trial. The first count in the declaration is in trover for the unlawful conversion of the 80 shares of stock. The second and third counts set out the contracts, aver breach thereof, and consequent damage.
It is conceded by plaintiff that in the first and second transactions no stock was ever delivered to him, nor did he have it to deliver when he ordered it sold. Settlement was made upon the market quotations without actual delivery. He testifies, however, that as to all four transactions, it was his intention to actually buy, and, as he was able, to pay for the various stocks in which he dealt. So far as the defendant is concerned, it is clear that neither he nor his principal ever contemplated the actual execu tion of the orders in question. He was operating what is commonly known as a “bucket shop.” He dealt in about 60,000 shares during the time he was in business, making actual deliveries of but 250 shares of stock within that period, and such deliveries were made only after the purchase price was paid in full.
Act No. 336, Pub. Acts 1907, absolutely prohibits the operation of such a business as defendant was engaged in and makes such operation a crime punishable by fine and imprisonment. By this act the offense is made complete where—
“Both parties or such keeper or proprietor shall contemplate or intend that such contracts, * * * shall be or may be deemed closed or terminated * * * when the market quotations reach a certain figure, * * * wherein the parties thereto do not contemplate the actual or bona fide receipt or delivery of such property, but do contemplate a settlement thereof based upon differences in the price at which said property is or is claimed to be bought and sold.”
The making of the contracts in question, their breach by defendant, and consequent loss to plaintiff, is not denied by defendant. He contends, however, that the contracts were of a gambling character, plaintiff so understanding them, and therefore not enforceable. It is clear from his own testimony that he intended them to be such. Did plaintiff so regard them F Taking into consideration his limited means, his profession, and his knowledge of affairs, it is difficult to believe that he understood the transactions in any different light than did the defendant. This issue was, however, submitted to the jury under proper instructions, and. it was determined in plaintiff’s favor. Upon a full consideration of the matter, we have decided that that determination should not be disturbed.
The court submitted the case to the jury upon the theory that there had been an unlawful conversion, by the defendant, of 20 shares of stock belonging to plaintiff. We think the record clearly shows that there could have been no such conversion, for the reason that neither plaintiff nor defendant ever had possession of the stock in question. Defendant, however, as before stated, notified plaintiff in writing that he had bought the stocks for plaintiff’s account in both instances, and upon the notices so sent appeared the following language:
“The actual delivery of property is in all cases contemplated and understood.”
These representations as to purchase were false; but, assuming the good faith of plaintiff, defendant cannot be heard to say that, because he misled plaintiff as to the facts, plaintiff must therefore go remediless. The statute above referred to is purely penal in character and has no bearing upon the question here involved. The fact that defendant knowingly engaged in a business prohibited by law, and made contracts in violation of the statute, cannot affect the right of the plaintiff, if he acted in good faith in the transaction, to demand damages growing out of defendant’s failure to perform as he had agreed.
Upon the question of damages, the court charged the jury as follows:
“ If you find that there was an unlawful conversion of any of these stocks by the defendant, then you should give the plaintiff as damages the value of the stock at the time of such conversion, less what the plaintiff owed defendant at that time, with interest from the time of the conversion to the present, at 5 per cent.”
Had the case been submitted to the jury upon the proper theory, i. e., a broken contract and consequent damage, the measure would have been the same as was given by the court upon the conversion theory. As, in order to reach the verdict they did, the jury determined all facts necessary to plaintiff’s recovery in his favor, we conclude that the error pointed out in the charge was without prejudice.
The other assignments of error have been examined, but disclose no reversible error.
The judgment is affirmed.
Ostrander, Hooker, Moore, and MoAlvay, JJ., concurred. | [
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Moore, J.
Plaintiffs sued defendant for the breach of a contract referred to later. The j'udge directed a verdict for the plaintiff. The case is brought here by writ of error.
On October 30, 1906, the Wayne Automobile Company ordered from the Gemmer Engine Company, of Wabash, Ind., 500 steering gears at a price of $26 each, deliveries to be made at the times stated in the contract. Three hundred of the gears were delivered and paid for. The unfinished parts of the remaining 200 gears are boxed at the placo of business of the Gemmer Engine Company. On April 11, 1907, the Wayne Automobile Company wrote Brandenburg & Company, the selling agents of plaintiff, stating they wanted the Gemmer Engine Company instructed to reduce the order for steering gears from 500 to 300. Other correspondence followed which it is not necessary to incorporate in this opinion.
Error is assigned upon two propositions:
(1) The court erred in holding as a matter of law that under the testimony in this case the defendant was liable to'plaintiff.
(2) The court erred in refusing to permit the jury to consider and determine the question of the value of the different materials, labor, and parts, as specified in plaintiff’s bill of particulars.
As to the first of these propositions, it may be said that the correspondence which appears in the record, and which was for the construction of the court, clearly indicates a breach of the contract, from which liability would follow. It was not error to so hold.
As to the second proposition: The plaintiffs charged defendant for the cost of labor and material which had entered into the unfinished gears, amounting to $1,200.12. They also charged defendant with anticipated profits amounting to $468, from which amounts was deducted the sum of $141, which plaintiffs say was the value of the unfinished gears, treating them as having no more value than so much junk. The judge accepted the view of plaintiffs, which view defendant insisted was incorrect. The defendant introduced testimony as to values and sought to take the judgment of the jury upon that feature of the case. In the examination of the manager of the plaintiff company appears the following:
“Q. Is it not a fact that the reason they did not take them over is they had an exorbitant price upon them ?
“A. No, I would not say that; the Gemmer Manufacturing Company could not use them, unless they had a customer actually on hand for them.
“Q. Did they not have some talk about making up these gears for the Wayne Company?
‘ ‘A. There was some talk of the three companies trying to get together, just as the two companies. They tried to get together.
“Q. There was quite a little correspondence about it?
“A. Some.
“Q. You came up here to Detroit about it, did you not ?
“A. No, I do not believe I did.
“Q. Is not that the reason that you did not take them over, is because you put too high a price upon them ?
“A. No, sir; they would be of no value to the Gemmer Manufacturing Company unless the Wayne Company would take them.
“ Q. You have already stated that the Wayne Company talked about taking them ?
“A. Yes, sir.
“Q. They wanted them ?
“A. Yes, sir.
“Q. They wanted gears ?
“A. Yes, sir.
“Q. Don’t you know they had to go out and buy other gears ?
“A. Yes, sir.
“ Q. Do you remember it was on account of that, your high price, that the Gemmer Manufacturing Company would not take them over ?
“A. No, sir; I would not say the Gemmer Manufacturing Company could not use them unless the Wayne Automobile Company specified these parts.”
The question of values and of the damage sustained were questions of fact and should have been submitted to the jury.
Judgment is reversed, and new trial ordered.
Ostrander, Hooker, McAlvay, and Stone, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). If this was a proceeding brought to determine the right of a parent or guardian to the care and custody of a child, it would be urged with propriety that the determination of the right by a court of competent jurisdiction ought not to be reviewed or set aside by another court exercising the same jurisdiction upon the same facts. In re Sneden, 105 Mich. 61 (62 N. W. 1009, 55 Am. St. Rep. 435). In the case supposed an appellate court would not disturb a finding of fact based upon competent testimony (Carpenter v. Carpenter, 149 Mich. 138 [112 N. W. 748]; Smith v. Kiel, 150 Mich. 417 [114 N. W. 229]), and any court would be bound to consider the interest of the child in awarding custody to either claimant. It is true the person suing out the writ describes herself as guardian of the child. This is of no significance except as showing her interest. Any person may make the application. 3 Comp. Laws, § 9860. The issue here does not arise between persons claiming the right to custody of a child. The issue is between the child and the person who detains her, between the child and the law and procedure invoked as authority’for her detention.
It is alleged in the petition that the child is imprisoned by an officer, and that she is not one of the persons mentioned in 3 Comp. Laws, § 9859. In such a case it is no bar to habeas corpus proceedings in this court that some other court exercising a like jurisdiction has refused to discharge the imprisoned person. And no finding or order of such other court in such a proceeding can be relied upon in this court as authority for the detention. The single question which is presented for determination, therefore, is whether the probate court for Wayne county had authority to commit this child. We assume, for the purposes of decision, that she is charged before that court with having committed a felony in the county of Wayne, and that, if she were more than 14 years of age, she might be tried for the offense charged in that county. She is not 14 years of age. Therefore she cannot be prosecuted for the felony in any court. Whether she has committed a felony may be inquired about. If she has, her status is thereby fixed. She is a delinquent child.
A careful reading of the statute (Act No. 6, Pub. Acts 1907) passedat the extra session of the legislature leads us to the conclusion that the probate court for Wayne county is, in this case, without jurisdiction to make the inquiry and to thereafter dispose of this child as the result thereof may seem to warrant. The statute is in many respects one of uncertain meaning. It is, however, a general law in force in every county of the State. It appears to be contemplated that the probate court of each county shall have jurisdiction over the delinquent, dependent, and neglected children, or those charged as such, resident in the county. It is not always easy to determine the precise meaning which the legislature intends shall be given to the words “residence” and “resident” in a particular statute. With respect to the statute under consideration, we think it is reasonably clear that jurisdiction of the court does not depend upon the place where the alleged offense is committed, the commission of which is the basis for charging the child as delinquent. So long as the child may not be prosecuted for the crime, there is no good reason for saying that status, although depending upon the fact of a crime committed, must be determined in the county where the offense was committed. There is much reason for saying that a child resident in any county may be charged in that county as a delinquent, dependent, or neglected child upon facts none of which occurred in that county. Section 5 of the act provides that the sworn petition to be filed in the probate court shall set forth that the child is a “resident in said county,” with the facts which show that the child is a delinquent, dependent, or neglected child within the meaning of section 1 of the act. At the same time, it must be admitted that in other portions of the law language is employed which appears to support the idea that the probate court of the county in which the child shall be found or shall be apprehended has jurisdiction. Notably is this true of the provisions found in section 6, which provides for the transfer of cases pending in police and justice’s courts, together with all papers connected therewith “to the said court,” upon which said transfer “the said court may proceed to hear and dispose of the case in the same manner as if said child had been brought before the court upon petition, as hereinbefore provided.” The legislature has provided no method or procedure for transferring a case from the police magistrate of one county to the probate court of another county, and none for transporting in custody a child committing depredations in one county to the county of his residence.
We do not hold or intimate that a child may not become resident in a county, within the meaning of this law, independent of the place of residence of his parents or guardian. We hold upon the facts of this case that Lois Mould was not, and is not, a resident in the county of Wayne within any meaning which may be given to the words of the statute. She is described in the complaint as a resident of Livingston county. She went into Wayne county in obedience to the process of a court of record. She was resident in Livingston county, living there with her relatives, one of whom was and is, by order of the probate court of that county, guardian of her estate if not of her person. If her conduct in court in Wayne county was such that she may be charged with being a delinquent child, the necessary inquiry can as well be made in Livingston county, her status as well determined in that county. While the law is in a sense remedial in character, it is nevertheless a penal law. The essential thing to the child, and to the public, is the inquiry upon the result of which her status depends. It better accords with established notions of justice, and with the general purpose of this general law, to hold that the inquiry should be had in the county of her home rather than in a county in which she was never in any sense a resident. So much significance we feel bound to give to the language which requires the petition to show that the child complained about is “ resident in said county.” We have no doubt that, as enforcement of the law proceeds, necessary amendments to its provisions will be made by the legislature.
Upon the hearing, the child was given in custody to Miss Ada Freeman, the probation officer of Wayne county. An order will be entered requiring her to deliver the child to the petitioner upon request. The child was in the custody of petitioner and lived with her when she was summoned to appear as a witness in Wayne county. If there is apprehension that the child should not remain with her, the courts of Livingston county are open; and, if she is regarded as a delinquent child, a proper petition in the probate court for that county will institute the statute inquiry. We award no costs.
McAlvay, Brooke, Blair, and Stone, JJ.,concurred. | [
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Moore, J.
The following statement of facts was prepared in the main by counsel for appellant; but it is borne out by the record: The complainant is a corporation organized under the laws of the State of Vermont. For several years previous to the 7th day of November, 1905, George W. Loomis and Richard Venn were copartners and engaged in business; the firm name being Loomis & Venn. In November Mr. Loomis died. At the time of his death the firm was indebted to various people, and .owed the complainant $896.56, which still remains unpaid.
The surviving partner, Richard Venn, did not wind up the partnership business, but continued to carry it on under the firm name of Loomis & Venn, with the consent and assistance of Adeline E. Loomis, widow, and Richard N. Loomis, son, of George W. Loomis, deceased. The last-named persons until the 1st of May, 1909, took part in the management and helped to conduct the business; Mrs. Loomis contributed some money, the amount as claimed by her being 1336.65, and Richard N. Loomis contributing his personal services. In May, 1907, Richard N. Loomis and Adeline E. Loomis, parties of the second part, and Richard Venn, party of the first part, entered into a contract in writing, by the terms of which Mr. Venn conveyed to Mrs. Loomis and her son all of his interest in the partnership property—
“Now in and about the store and business occupied and used by the parties hereto in carrying on their business of manufacturing and selling monuments in the city of Charlotte.”
By the terms of this agreement Mr. Venn, who was the father of Mrs. Loomis, was to be paid $12 a week during his life, and was to have in effect the right to assist and advise in the management of the business; and Mrs. Loomis and her son were to pay all of the firm debts, and, upon the death of Mr. Venn, and the performance of these conditions, were to be the owners of the property. The contract contained a mortgage clause to secure the performance of the terms of the contract. Mrs. Loomis and her son went into possession of the property under this agreement and continued in possession until about the 9th day of December, 1908. July, 1908, Richard Venn died. After his death Mrs. Loomis and her son continued in possession of the property, claiming to be the owners thereof under their contract with Mr. Venn.
After the death of Mr. Venn and on the 28th day of July, the defendants Richard N. Loomis and Adeline E. Loomis caused their attorneys to write letters to all of the creditors of the firm of Loomis & Venn, claiming to have been the partners of Venn in the firm of Loomis & Venn, and claiming also to own Venn’s interest in the firm business by virtue of their contract and to have performed all of the conditions of the contract except the payment of the firm debts, and asking creditors to forbear presenting claims against the estate of Venn and to grant to the Loomises an extension of time. .The complainant in this case received one of these letters and agreed to withhold any action to enforce collection of their claim. On the 30th day of November, 1908, Adeline E. Loomis filed a petition for administration of the estate of George W. Loomis, deceased, and on the 9th day of December, 1908, one O. E. Packard was appointed special administrator of this estate; Richard N. Loomis and Adeline E. Loomis at once turning over to Packard all of the property then in their hands connected with the partnership business that had been conducted under the firm name of Loomis & Venn. On the 11th day of January, 1909, O. E. Packard, special administrator, turned this property over to Charles D. Spafford, who had been appointed general administrator of the estate of George W. Loomis. This property has been treated by both of the administrators as a part of the separate, individual estates of George W. Loomis, deceased, and Richard Venn, deceased. It was inventoried as such by the defendant Spafford, and all of it, with the exception of book accounts, was sold by Spafford under an agreement with Jordan, administrator of the Venn estate, for the sum of $1,750, and was divided equally as per previous arrangements between these two administrators; and the defendants Spafford and Jordan claim the right to hold this property as belonging to each of these two estates in equal shares, and assert that they expect to distribute it among creditors under an order of the probate court after paying the expenses and whatever allowances may be made for the widows of said partners. The total amount or value of this property that has come into the hands of these two administrators, as claimed by them in paragraph 25 of their answer, is the sum of $1,880, in addition to which they claim there is about $566.96 in book accounts, estimated to be worth 50 cents on the dollar. A part only of the firm debts is shown by this record, of which $1,388.48 is owing to the complainant. The other indebtedness shown by this record, brings the total up to about $3,773.56, which is several hundred dollars in excess of the total amount of the assets in the hands of the administrator. From the time of the death of George W. Loomis until the property was turned over to the special administrator of his estate, this business was conducted as a going business. After the agreement between Mr. Venn and defendants Richard N. and Adeline E. Loomis, in May, 1907, goods were sold, bought, and retailed in the regular way. Some of the old debts had been paid, and new obligations incurred, and the stock was larger at the time Packard took possession of it than it was on the 1st of May, 1907, the date of the contract between Venn and the Loomises.
This bill of complaint was filed for the purpose of having a receiver appointed who should take charge of the assets and distribute them among the creditors of the firm of Loomis & Venn. The trial judge was of the opinion that the various shifts that were made in the business was in effect a continuation of the business of the old firm of' Loomis & Venn, and in no way affected the rights of the creditors of that firm. He further expressed himself as-follows:
“I cannot see how complainant, or other creditors, can be harmed by permitting the probate court to close up and settle these estates. The property involved, viz., the avails of the sale of stock, book accounts, etc., in my view of the case is partnership property, subject only to partnership debts, and it is not to be inferred that illegal, claims will be proven and allowed to stand as claims against the said fund of these estates, in the probate court.”
He made a decree dismissing the bill of complaint. The case is brought here by appeal.
Counsel for defendants in his brief says:
“ I shall take up but little space in discussing this most extraordinary case, for the reason that the complainant is contending in principle for the same thing that the defendants Spafford and Jordan are; that is, that this fund now in their hands is a fund belonging to the creditors of the late firm of Loomis & Venn and which they intend to so treat if they can be permitted to do so.”
There is no serious dispute about the facts. It very clearly appears that, treating all these funds as assets of the firm of Loomis & Venn, there will not be sufficient to pay the creditors of Loomis & Venn. This being the situation, it is difficult to see how there is any fund which, belongs to the administrator of George W. Loomis, deceased, as an individual, or to the administrator of Richard Venn, deceased, as an individual. It is also difficult to see how claims of the creditors of Loomis & Venn can be presented and allowed in the probate court against the individual estate of George W. Loomis or against the individual estate of Richard Venn. We think a receiver should have been appointed as prayed. See Malone v. Malone, 151 Mich. 680 (115 N. W. 716).
The decree is reversed, with costs. A decree may be entered in accordance with the opinion.
Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred. | [
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Campbell, J.
Bixby was sued in a justice’s court in Grand Rapids under sections 2066 and 2067 of the Compiled Laws for failing to kill his dog after being notified in writing that he had bitten a person peaceably walking outside of his enclosure. Judgment was given against him for the statutory penalty of three dollars. The case was affirmed on certiorari and now comes up on error to Kent circuit.
The statute under which this penalty was recovered is an old statiite of 1850, and is entitled “ An act for the protection of sheep and other domestic animals, and for other purposes.” Its chief purpose was the protection of domestic animals against vicious dogs, but provisions are also inserted giving a private right of action for personal injuries, and for a penalty if, after written notice, the dog is-not killed.
This penalty of $3, and a further sum of $1.50 for every 48 hours’ delay, is required to be sued for on complaint of a “ citizen of any township where the trespass has been committed,” who must satisfy the supervisor of the facts, and then the supervisor is authorized to sue “ in his name of office ” and pay the money recovered by him “ into the township treasury, to be applied towards the incidental expenses of the township.”
The supervisor in thus suing, acts not oti behalf of any private person of of the State, but on behalf of the township, and the money belongs to the township which he represents. The supervisors of the several wards of G-rand Rapids are by the charter of that city authorized to perform the duties of supervisors of townships except as thereby otherwise provided. Local acts 1877, p. 145. This exception is very material, because a ward is thereby made a mere territorial division of a single larger corporation, and is not for any purpose a municipal corporation by itself, and has no treasury and no capacity of suit. The supervisor cannot, under the city charter, bring any action for the city or any part of it, and the authority left to him involves no such representative character as would make him for any such purpose as this capable ‘ of acting for the municipality.
The statute authorizing supervisors to sue does not in.terms apply to cities, and there is little reason *why it can be supposed it was intended to apply to them. The chief purpose of the law is not the protection of persons but of property. Its application for private suits is not confined to townships but extends everywhere. The section authorizing suits by supervisors is the only one which is confined to those localities. When this law was passed there were but few cities in the State, and the special necessity of requiring dogs to be killed was probably not supposed to exist except in agricultural ■districts. , At any rate the law did not then any more than now give city supervisors any control either of city litigation or of city funds. We think the action was not within the law.
Judgment must be reversed with costs of all the' courts.
The other Justices concurred. | [
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Campbell, J.
Complainant, on the 5th of September, 1876, filed a bill of interpleader against defendants, averring that Leitelt, as assignee in bankruptcy of the Grand Diver Yalley Plaster Company, and White set up conflicting claims to $1540 in money in complainant’s hands, being the proceeds of the sale of certain plaster manufactured at the mill of the bankrupt company and delivered to complainant. The bill avers that White claimed it as plaster ground for him, and that Leitelt claimed White bought the rough plaster on an execution against the bankrupt, which was invalid as against the assignee.
Complainant was a corporation organized by the union of several plaster manufacturers for the purpose of keeping control of the market by selling all their product so far as it was to be-'marketed — each member furnishing a certain percentage of the plaster, and agreeing to sell no more, except among themselves. Complainant was to pay a certain price in the first instance, and divide the profits ratably according to the proportions fixed.
The bill avers that after the bankruptcy of the Grand Diver Valley Plaster Company Leitelt ran its mill and'assumed its place in the arrangement with complainant, and up to June 13, 1876, had delivered the quota, amounting to 1727 tons; that complainant had paid over a considerable sum named to him, btit that White claimed 150 tons of this to be his property, and to have been ground for' him by Leitelt under a special bargain; while Leitelt claimed it as his under assertion that the execution sale before mentioned was in fraud of the bankrupt law.
On these .statements the complainant offered to pay the $1510 into court, and sought to compel the defendants to interplead. The money was paid in, and both parties were enjoined from legal proceedings.
White appeared and answered October 23, 1876, and complainant filed a general replication. The answer in substance denied that Leitelt delivered White’s plaster, or that White ever claimed any plaster delivered by Leitelt, and denied that Leitelt set up any adverse claim to White’s property. It avers that Leitelt ground the plaster for White and White delivered it to complainant and was credited with it himself, and his rights recognized by complainant. There is a full denial of any conflict, and an averment of suit brought and pending in fa-vor of White against complainant for the money. Tie admits a refusal to indemnify complainant, for the reason that there was no adverse claim set up, and offers to accept the money and discontinue.
Leitelt appeared on the 9th of October, 1876, and the time for answering was extended until November 18. On the 7th of December, 1876, an order pro confesso was entered against Leitelt, embodying an order of reference to take proof of the material facts and circumstances charged in the bill.
. As we are bound by the record, we can take no notice of various allegations and counter allegations made by counsel oii the hearing, and not appearing of record.
Nothing further appears to have been done until January 29,1878, when complainant’s and Leitelt’s solicitors stipulated to set aside Leitelt’s default, without costs to either party, and to let him file a disclaimer. On the next day Leitelt filed his disclaimer under oath, denying that he had ever owned or claimed any interest in the matters in dispute.
No testimony having been taken the cause was for argument at the May term, 1878, but during that term, in August, 1878, complainant’s solicitors, on the claim that the disclaimer was broader than they had supposed, asked to have it restricted to the date of filing, or else to have leave to reply. Leave to reply was given, and replication was filed August 31, 1878. On the 10th of October, 1878, an exparte order was made to take testimony within sixty days.
On the 29th of November, 1878, winch was the last day on which notice to take testimony could be given, notice was given to take it on December 9, which was the last of the sixty days. On that day no witness had been examined, and on a showing that one witness out of three had informed complainant’s counsel it would be a damage to him to be compelled to attend, and that he had thereupon been assured another day would be fixed, the time was extended by an ex parte order sixty days longer. A petition was then filed on White’é behalf remonstrating against the delay, and asking a reduction of time, and a stipulation was made to put the case on the docket for the then December term, and close the proofs by February 5, 1879. . -
On the 28th of December, 1878, one Amos Kathbone filed a petition for leave to intervene and contest White’s interest, in which he claimed a right as partner. This petition. was sworn to December 10th, and the solicitor who presented it had on the previous day made application, as complainant’s agent, for the extension of time for proofs. There is nothing-to show that this petition of Amos Kathbone was ever brought to White’s attention until the final hearing. Leave to file it was given ex pa/rte December 12; but the service was not required to be made until nine days before the petition itself should be brought on for hearing, which was not required to be until the final hearing of the cause.
The case was not heard until November, 1879, and on the 26th day of November a decree was made to the following effect: first, that the bill was properly filed; second, that Leitelt had no claim on the money, but that it should remain in the register’s hands free from any such claim, and that no costs should be awarded against him; third, that Rathbone was thereby made a party defendant and allowed to interplead for one-half of the money; fourth, that White and Rathbone interplead, and that pleadings be filed accordingly; fifth, that complainant recover costs out of the fund; sixth, that a copy of the decree be served on White or his solicitors.
White appeals from this decree.
It is impossible to sustain such a decree on a bill of inter-pleader. Such a bill can only be filed when a complairiant is in good faith and without collusion or fault, placed in a condition where it is impossible to decide safely between adverse claimants of the same fund or right. In order to prevent collusion the rules are applied strictly, and such a bill is not upheld unless upon full merits: Bedell v. Hoffmam, 2 Paige 199 ; Badeau v. Rogers id. 209. Laying aside for the present all reference to the actual merits of the controversy, it is manifest that when one of the only two conflicting claimants referred to in the bill is finally determined to have no claim, it must follow as a matter of course that the fund belongs to the other. The claim, whatever it may be, of Rathbone, is not a claim against which the bill was .filed, or which in any way appears to have stood in the way of complainant paying over the money to any one. Bringing him into the case without an amendment of the bill puts nothing in issue, and it is difficult to conceive how a bill of interpleader could be so amended as to reach him, because the only excuse for filing it is to guard against known and not unknown claims. There is no practice which allows a stranger to get himself into a cause by petition. Apart, therefore, from all other considerations, the retention of the fund or any part of it after it was found there was no contest among the original defendants, could not be justified under a bill of interpleader properly brought.
But, inasmuch as Rathbone is represented by the same solicitor who appeared for complainant in obtaining some delays in the presentation of the cause, this provision in the decree must be regarded as irregular and censurable. It resembles in this respect the case of Dungey v. Angove 2 Ves. Jr. 304, where an application to have the money, under similar circumstances, retained to answer some purpose connected with another litigation, induced Lord Rosslyn to direct an inquiry into the collusion, which resulted in serious consequences to the parties concerned. It is impossible to read this record without becoming satisfied that Mr. Rathbone was not introduced into it for any legitimate purpose.
It becomes necessary, however, to look into the entire record to determine how far the suit was properly begun, and what equities appear bearing on the right of the various parties to interest and costs.
The bill on its face is regular. White, while denying the fact of any conflict of claims, offered by his answer to take the money. At that time there had been no considerable expense incurred.
When the bill was taken as confessed as against Leitelt, it amounted to an admission that he had no claim on the fund, and White became thereby at once entitled to it: Badeau v. Rogers 2 Paige 209 ; Aymer v. Gault id. 284; Stevenson v. Anderson 2 Ves. & B. 412; Martinius v. Helmuth id. 412 (n). Any improper delay after an answer in preparing the cause for hearing will authorize an application for the money by the party who has answered, if there is any fraudulent purpose or collusion: Hyde v. Warren 19 Ves. 322; 2 Supp. to Vesey Jr. 316, 458. The only question open after Leitelt’s default which concerned White or complainant was as to costs, and as to their lien on the fund. A complainant who has acted honestly and promptly may be allowed a lien on the fund, and the prevailing defendant will generally have to look to the other defendant for his costs. But this must depend on the facts, and if. complainant has filed his bill improperly, or has conducted the case unfairly, the result will be different. See previous cases and Dunlop v. Hubbard 19 Ves. 205 and note; 2 Supplement to Ves. Jr. 447.
Neither Leitelt nor White can be properly regarded as responsible for any delays. And upon the issues made by the answer of White, and the disclaimer of Leitelt, we think the testimony preponderates in favor of Leitelt having done nothing at any time before or after suit to authorize the complainant to refuse payment to White and file the bill. We think further that the course of dealing shown by the books of complainant, whereby White was credited with the plaster in controversy, would have justified White in claiming that there was no ground for an interpleader, even if Leitelt had made adverse claims. But no such claim was set up.
The record shows that White desired the case to be speeded, and that Leitelt regarded himself as having no interest in it. The great and unreasonable delays, coupled with the peculiar way in which Rathbone’s name became involved, would have made it unjust to give complainant costs out of the fund, even had there been any foundation for the bill originally.
But on the testimony there was no proper excuse or reason for filing it. The decree must therefore be reversed with costs of both courts in favor of White against complainant. White is at liberty to prosecute his suit at law on the claim against complainant, and to withdraw the fund from court crediting as of the date of this decree, so much as remains of it over and above his costs aforesaid, as a payment on the claim. The bill having been improperly filed will not stop interest, and must stand dismissed.
The other Justices concurred. | [
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Cooley, J.
This was an action of ejectment, and the defense relied upon was the Statute of Limitations.
I. Defendant having shown his possession for the requisite length of time, under tax titles which are now conceded to be invalid, was suffered to prove that the land was generally understood to be and called his, in the neighborhood. Exception was taken to this evidence, but we think it was competent. It tended to establish the notoriety of defendant’s possession, and claim of title; which were important facts in his defense.
II. The circuit judge was requested to instruct the jury that defendant to complete his defense must show that his possession for the requisite time was actual, continued, visible, notorious, distinct and hostile. The judge gave the instruction with the omission of the last three qualities, and refused to give it otherwise. Why he thus limited it does not appear and we cannot surmise. The request was entirely proper, and should have been given : Yelverton v. Steele 40 Mich. 538. It cannot be said that the instruction given covered the case, for a possession may be actual, continued and visible, without being either notorious or hostile, and no possession can be adverse within the intent of the Statute of Limitations that lacks either of these qualities.
"Where possession is held by claim of title under a tax deed, it is perhaps of necessity hostile to the title of the claimant under the original title; and as that was the nature of defendant’s claim in this case, we might overlook the dropping of the word “hostile” in the instruction. But the distinctness and notoriety of the defendant’s possession were the very things in controversy on the evidence, and the necessity that these should appear ought to have- been impressed on the jury.
The defendant claimed a possession which was more constructive than actual, and which was limited in the main to cutting timber. He did not live on the land, and there were not at all times upon it visible evidences that any person was in occupancy. A passer-by, looking at the land, might have inferred that it had been the subject of frequent trespasses, without ever having been in the actual possession of any ■claimant. The facts respecting possession were so equivocal as to invite different conclusions from different minds, and there is much reason to believe the jury may have been misled by an instruction which left them to understand that notoriety and distinctness in the possession were unimportant. We think we have no alternative but to order a new trial with costs to the plaintiff.
The other Justices concurred. | [
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Per Curiam.
This is an application for a certiorcuri to review certain proceedings of the Detroit, Grand Haven Milwaukee Railway Company in the condemnation of land for its purposes.
The questions which the application raises are whether the corporate existence of the railway company was made to appear in the proceedings, and whether it was lawfully possessed of the franchises it assumed to exercise.
There is a manifest impropriety, as we think, in submitting questions of this very important nature to the inferior tribunals which are created to pass upon questions of value in condemnation proceedings, and the law in our opinion does not contemplate their considering them. But if not considered by them, they are not properly open in any review of alleged error in their proceedings. | [
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Graves, J.
Cooley instituted an action of ejectment for .a strip of land in Seager’s possession, and the latter brought this bill for a decree declaratory of his rights and perpetually enjoining their infringement. The case was heard on pleadings and evidence, and the court granted relief. The defendant appealed.
November 29, 1858, John Gallagher conveyed to Casper Loeher all the south half of ont-lot forty-four of Glasby & Gallagher’s addition to the village of East Saginaw, except t the east acre cmd a half. This excepted parcel on the. east side seems to have been previously bargained to one Franz or Frank Beier, to whom, as appears, it was conveyed by deed in 1860. February 5, 1859, and only a few months after he received his deed from Gallagher, Casper Loeher agreed in writing to sell and convey to complainant for a specified money consideration “ one acre of land commencing on the corner between land owned by Frank Beier and Casper Loeher, in south half of out-lot forty-four and of sufficient width to make one acre, and being on the east part of land sold by John Gallagher to Casper Loeher.” Loeher proceeded to stake out the west line of this parcel for the purpose of showing complainant where to make fence and what to occupy, and the latter at once entered into actual possession of the piece designated and put up a fence along the line marked by the stakes. On the east side a fence was already up on what was supposed to be the west line of the excepted parcel. These fences have been continued on the same sites ever since, and complainant has remained in the uninterrupted occupancy and possession of the middle enclosed parcel. Complainant entered under the contract and held under it exclusively until he received a deed. His possession and occupation for the whole period have been actual, open and notorious.
February 23d, 1860, Loeher executed to Charles T. Disbrow a warranty deed for the west acre and a half of the south half of out-lot forty-four, and the deed was recorded in August following; and on the first of January, 1861, Dis-brow executed a deed to Shepherd Knapp for the same description, which was recorded. At the time when these deeds were given, complainant was still holding under his written agreement from Loeher, but on the 6th of March, 1861, and about two months after the deed from Disbrow to Knapp and about a year subsequent to Loeher’s deed to Dis-brow, the complainant received a deed from Loeher, which was intended to carry out and comply with Loeher’s obliga tion under the written contract. The terms of description, however, as will be seen, were made less accurate than the written agreement, and were not sufficiently precise by themselves to absolutely foreclose controversy. The description is as follows: “ One acre of land in the south half of out-lot forty-four in Glasby and Gallagher’s addition, lying between land owned by Franz Beier and Charles J. Disbrow, having a front of five rods on Lapeer street and running back to the division line east and west enough to make one acre of land more or less.”
Subsequent to this deed from Loeher to complainant the defendant Cooley received a deed from Shepherd Knapp containing the same description as the deed to Disbrow, and calling for the west acre and a half.
In June, 1875, a survey was made,- and it was then ascertained that neither of the three parcels as actually enclosed and occupied contained as much land as the terms of the papers called for, and that the center parcel in complainant’s possession, instead of being an acre, was only 79^100 of an acre. Immediately the defendant claimed in substance that as the deed to Disbrow, his predecessor in title, called for a full acre and a half, and was the prior deed from Loeher, the common source of the title of complainant and defendant, he was absolutely entitled as against complainant to that quantity and as a consequence had lawful right to a sufficient strip from the west side of complainant’s enclosure to make up the full west acre and a half. He accordingly brought his ejectment, as before mentioned, for the strip referred to.
The point is made that the bill is wanting in equity on the ground that complainant’s case might have been used as defense in the ejectment.
The position is not tenable. The decision there must have been in favor of the superior legal title, and that seems to have been in Cooley. His claim is under Loeher, the common source of title, and through a deed from him prior to that held by complainant, and such priority implies a legal preference in the competition between the parties for quantity. That being the case, the only chance left to complainant was to establish that this apparent legal advantage was actually subject to a controlling equity in his favor, and this is the ground he takes. He shows that the making use of the earlier date of the grant to Disbrow from Loeher, the source of all the titles, in order to divest him of a part of what Loeher sold him and a part of his actual holding, is inequitable and ought not to be allowed. His contract entitled him to a full acre next to the excepted parcel. It was the first sale made by Loeher, and preceded by a considerable time the sale to Disbrow. In virtue of it complainant became equitable owner. His immediate and constant occupancy and possession, operated as full notice of his rights so far, at all events, as the premises within the enclosure are concerned: Rood v. Chapin, Walk. Ch. 79; Godfroy v. Disbrow, id: 260; Russell v. Sweezey 22 Mich. 235. His holding was under the contract, not only when Loeher deeded to Disbrow but also when Disbrow deeded to Knapp. The right under that chain of conveyance was therefore fixed during such holding, and it could not be more extensive than complainant’s contract rights permitted. The latter necessarily gave bounds to'the former, and there is no room for argument that, as against complainant, the right under the Disbrow deed has grown- larger. On the whole, it appears to me that the case is within the principle of Boyce v. Danz 29 Mich. 146, and the cases there cited.
It is next contended that the grant by deed to complainant executed the contract and put an end to its operation, a.nd that the deed itself, by force of its terms, confines- complainant to whatever space there happens to be between the excepted parcel on the east and an acre and a half on the west. Only a few words will be given to this objection. The deed was given to carry out the contract, and not to abridge any of the rights it was made to secure. Such, at least, is the fair inference, inasmuch as all the evidence tends that way and there is nothing to the contrary.
The defendant holds with notice that his title was .created in subordination to complainant’s right to the strip sued for and within his enclosure, and the deed is certainly open to an interpretation which will cover it. White v. Luning 93 U. S. 514.
The case contains references to tax titles, but defendant has wisely discarded them. They appear invalid and are certainly of no consequence whatever in this contention. It may be that the form of relief which the court decreed is not the most appropriate, but if so it is because something more salutary might have been allowed. But the defendant has no cause to complain and the complainant has not appealed.
1 think the decree should be affirmed'with costs.
The other Justices concurred. | [
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Cooley, J.
The action in this case is ejectment. The facts are in the main undisputed. In June, 1846, Joseph Brown purchased the lands now in controversy, and caused them to be conveyed to Irene F. Brown, his wife. Irene E. Brown died March 4, 1847, leaving nine children surviving her. Joseph Brown was then in possession of the land, and he 'continued to occupy it from that time until his death, which occurred in 1878. In 1848 he inter-married with Eliza M. Brown, who survived him and is now his widow. By her he had children who survived him.
After the death of Joseph Brown, the heirs at law of Irene E. Brown, who were children of Joseph Brown .by his first marriage, brought this suit against Eliza M. Brown and two of her children, then living with her upon the land. They defended, relying upon a title by the adverse possession of Joseph Brown from the time Irene E. Brown died, in 1847, till Joseph Brown’s death in 1878. In the circuit court this defense was not sustained and the plaintiffs had judgment.
The circuit judge tried the case without a jury, and there is no finding of facts. We are not informed, therefore, whether he did or did not reach the conclusion that Joseph Brown, after his first wife’s death, claimed to hold the land adversely to her heirs. There was evidence which might support that conclusion, and there was also some of a contradictory nature. The plaintiffs below claimed that Joseph Brown’s occupation was that of a tenant by the curtesy, while the defendants denied that any such tenancy did or could exist under the laws then in force. The question is one of statutory construction, and the view taken by the defense may be stated as follows ;
Tenancy by the curtesy, except so far as the right might then be in existence, was in effect abolished in 1844, by an act which gave to married women the complete enjoyment of their estates. Sess. Laws 1844, p. 77; Rev. St. 1846, p. 340, § 25. The Revised Statutes of 1846, which took effect March 1, 1847, created a statutory estate by the curtesy. Hill v. Chambers 30 Mich. 422. But these cannot constitutionally apply to the lands in dispute, for Irene F. Brown had acquired them in 1846, and her fee could mot be limited by subsequent legislation. The estate was finally abolished in 1855. Tong v. Marvin 15 Mich. 60.
This is the argument. But we may concede that there was no curtesy between 1844 and 1847, and the argument will nevertheless fall to the ground. The statutory curtesy under the statutes of 1846 attached at the death of the wife, and not before. The rents, profits and income of the land up to that time belonged to the wife, (Rev. St. p. 340, § 25); and the surviving husband’s interest only attached as a limitation upon the inheritance. There was no want of legislative authority, therefore, to make any existing estate subject to it; the power to do so was the same with the power to modify the- rules of descent for the subsequent transmission of property. Its exercise interfered with and limited no constitutional rights of the wife, but left her in the full enjoyment of them all to the last moment. If she sold the land she conveyed the fee; if she continued the owner to the time of her death, she remained owner of the fee. There is no room for the suggestion that her constitutional rights were invaded.
It follows that Joseph Btowd, after the death of his first wife, held the land as tenant by the curtesy. The judg-> ment of the circuit court was right, and it must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
Under the facts in this case the plaintiff was not entitled to recover. No extended discussion is necessary.
The judgment must be reversed with costs of both courts. | [
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Blair, J.
On July 13, 1908, this court handed down a decision quashing certain drain proceedings. Harrington v. Calhoun Probate Judge, 153 Mich. 660 (117 N. W. 62). On the same day judgment was entered, quashing the proceedings and providing “that the relators recover of and from the respondents their costs of both courts to be taxed.”
Plaintiffs in certiorari having presented their taxed bill of costs in accordance with the judgment, the same was allowed, and the costs taxed in their favor by the clerk of this court, October 17, 1908, at the sum of $135.35. In February, 1910, plaintiffs in certiorari filed a motion “to amend the judgment for costs heretofore entered in this cause by entering said judgment for costs against the petitioners for the said drain,” etc.
Assuming, but not deciding, that this court might, in the exercise of its discretion, grant the amendment and cause the judgment to be entered against the petitioners, who were not parties to the record and against whom the statute does not in terms authorize the entry of judgment, we are not inclined at this late day to grant the motion.
The motion is denied, with costs.
Ostrander, Hooker, Moore, and Stone, JJ., concurred. | [
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Moore, J.
The information in this case charges that respondent "did sell, furnish, and give to one William Davis, a certain quantity of malt, brewed, fermented, spirituous, and intoxicating liquor, to wit, two pint bottles of whisky,” contrary to the provisions of Act No. 207 of the Public Acts of the State of Michigan for the year A. D. 1889 (2 Comp. Laws, §§ 5412-5435), as amended, etc. The respondent was convicted and brings the case here by writ of error.
The testimony of the witnesses for the people tended to show that respondent, together with three or four other people, was in Prey & Bollinger’s billiard parlor, in the city of Jackson, on the 19th of December, 1909; that the party consisted of respondent, William Davis, and his two brothers, Charles Davis and Myron Davis, and Edward Hogan; that said William Davis remarked that he wished he had a drink, and that respondent said he would go and get some if he had the price, and William Davis gave him the money and respondent went and got it; that William Davis and Myron Davis each contributed 25 cents, and William Davis gave the 50 cents to respondent, and that respondent left the billiard parlor, was gone 15 or 20 minutes and returned with a pint of whisky; that respondent handed the bottle of whisky to one of the Davis boys — which one of the Davises received the bottle from the respondent, none of the witnesses could remember. The three Davises and respondent drank the whisky; afterwards William Davis, as he testified, gave respondent 25 cents and respondent added 25 cents and went ■ out from the billiard parlor and after awhile returned with another pint bottle of whisky, which was drunk by the Davis boys and respondent. There was no testimony as to how respondent obtained either of said bottles of whisky. William Davis further testified that he did not know whether respondent kept liquor for sale, or went and purchased it, or how he got it. Respondent testified that he did not have any whisky in his possession that day, and denied that he furnished any to William Davis or either of his brothers.
The error claimed is stated in the brief of counsel as follows. We quote:
“Appellant relies upon his first assignment of error, which in part is as follows: The court erred in charging the jury:
“ ‘But if he did not have any (whisky) on hand somewhere secreted, out of which he got and produced it for this particular purpose, using Davis’s money, and got it from a third party, still he would be the agent, that is, the means, the active, intentional means, of supplying this liquor to the Davises and the others that used it there, and in that case he should be deemed to be the furnisher of the liquor and furnishing it against the terms of the statute, and therefore guilty. So, in either case, no matter how or where he obtained it, if he did furnish the liquor as charged, and as the people claim, then he should be convicted of this ofEense.’
“ There is no evidence in this case that respondent kept the whisky for sale or that he had it in his possession, or under his control, at any time prior to the time he went out and got it as testified to by the people’s witnesses, nor is there any evidence that he was the servant of, or agent for, or in any way connected with, any person who had the liquor in question for sale. He procured it at William Davis’s request, using William Davis’s money. We contend he was the agent of William Davis. The only point we claim is that the court erred in charging the jury as set forth in our first assignment of error. We submit that .it was a question for the jury whether the liquor produced was liquor that respondent had on hand, whether he was acting as agent of the seller, or whether he was acting as the agent of William Davis, and that if he was acting as the agent of William Davis he was not guilty of selling, giving, or furnishing the liquor to him, and it was error for the court to charge that he was.”
Counsel cite a number of authorities, but none’ of them are from this State. We think the charge of the court, in view of the testimony, the offense charged, and the provisions of the statute, is not subject to the criticism made by counsel.
The conviction is affirmed.
Ostrander, McAlvay, Brooke, and Blair, JJ., concurred. | [
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Brooke, J.
(after stating the facts). It is urged by complainants that the court had no authority, under the proofs in this record, to do anything but decree a sale of tñe parcel en masse. It is to be noted that the record is barren of testimony to the effect that a sale, as ordered by paragraph 7 of the decree, will or may produce more than a sale of the whole parcel en bloc; indeed, the only testimony in the case is that given by the complainants, who swear that, in their opinion, the property will bring a higher figure, if offered as one parcel. If the contention of defendant Davis, that the property will sell better in three parcels than in one, is well founded, it certainly should have been easy for him to have produced evidence to that effect for the guidance of the court. This he did not do. He even refrained from going upon the stand himself, and placing his opinion upon record, as to the best method of sale. It may be that he relied upon the knowledge of the court as to the situation. It is elementary that the court must base its decree upon testimony given in open court. Knowledge gained by a view of the premises might, with propriety, be used to determine which of two methods of sale should be adopted, where both are supported by proofs; but such knowledge cannot alone be made the basis of a decree. The primary object in a partition sale is, of course, to obtain the highest possible sum for distribution, and there is no doubt of the authority of the court to subdivide a single parcel for the purposes of such sale, if convinced upon a proper showing that such course would produce a higher figure than a sale in a single parcel; but, as we have pointed out, no such showing was made, and there was therefore no basis for the decree entered.
Should complainants have been reimbursed, from the proceeds of the sale, the expense incurred in buying in the tax titles and procuring an abstract ? It is clear that the former owners of the tax titles, their claims to title being adverse, were not proper parties defendant in this proceeding. Summers v. Bromley, 28 Mich. 125; Wilkinson v. Green, 34 Mich. 221; Bell v. Pate, 47 Mich. 468 (11 N. W. 275 ); Hayward v. Kinney, 84 Mich. 591 (48 N. W. 170). Defendant Davis, at the time he filed his plea, evidently considered these outstanding titles such a cloud upon the title held by himself and complainants as to warrant their removal. To have filed a bill for this purpose, even supposing the absolute invalidity of the claims, would probably have involved the expenditure of a larger sum than was paid by complainants in purchasing the titles. Complainants apparently acted in good faith and for the purpose of clearing the title, in order that prospective bidders at the sale might not be deterred from offering the full value of the property. In an equitable proceeding, in the absence of any indication of bad faith, we can see no reason for denying complainants reimbursement for this item as well as for the abstract. Both were made for the benefit of the estate, and both were, in our opinion, necessary to insure a sale at the best price obtainable.
A decree will be entered providing for the sale of the premises in a single parcel, and providing, further, for the payment, from the fund, of the sums expended by complainants, above referred to. In other respects, the decree is affirmed, with costs to appellants.
Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred. | [
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McAlvay, J.
Complainants on January 23, 1907, filed their bill of complaint against defendants for the purpose of having a certain deed set aside and declared null and void as a cloud upon their title to certain lands located in Iron county. On July 10, 1887, Michael Houlihan, the father of the complainants, died intestate, at his home in Wisconsin, seised in fee simple of 160 acres of wild timber land described as the southeast quarter of section 36 in township 43 north, range 35 west, in Iron county. The complainants are his only heirs at law. Ellen Houlihan, his widow, is their mother. These nine children were all minors at the time of the death of their father, of ages between 18 and 3 years, and all but two of them have always been nonresidents of this State. In December, 1887, the probate court of Iron county appointed defendant Patrick Fogarty guardian of the nine minor children. He afterwards, on January 3, 1888, petitioned to be appointed administrator of the estate of Michael Houlihan, deceased. He qualified in both capacities. His bond as guardian, and also his bond as administrator, were signed by defendants John Dinneen and Edward Donovan (deceased) as sureties. The estate of Michael Houlihan consisted only of the 160 acres of land above described. He was indebted at the time of his death to the amount of $400 or $500. The widow and the children had no means of support. The estate of the minor children consisted only of their several interests in this land inherited from their father. It is claimed that as administrator Patrick Fogarty petitioned the probate court for license to sell this land for the purpose of paying debts, interest, and charges, as appears from what purports to be an order of sale of the premises for the purposes mentioned, subject to dower and homestead rights of the widow, made on hearing a petition granted to him as administrator. The date upon which this license to sell was made is in dispute. In the first paragraph it appears that the date had been changed. A pen had been drawn through the date September 8, 1888, and July 25th substituted. It reads as follows:
“ State of Michigan, “ County of Iron.
) )
“Ata session of the probate court for said county held at the probate office in the township of Crystal Falls on Saturday the eighth 25 day of September July, in the year of our Lord one thousand eight hundred and eighty-eight.
“Present, Charles Gallagher, Judge of Probate.”
Fogarty as guardian of the minor heirs of Michael Houlihan, commencing June 9, 1888, published a notice for thirteen successive weeks, as follows:
“For Sale: As guardian of the heirs of M. Houlihan, deceased, I am authorized, by the probate court of Iron county, to dispose of the following described property for the benefit of the heirs, to wit: The S. E. i of section 36, township 43, range 35 west. Will sell with right to reserve one-fourth interest in minerals. Price paid to be cash. Good clear title will be given. For information write to me at Stambaugh, Michigan, or apply at my homestead in Stambaugh township. Bids to be in by September 8, 1888.
“Pat Fogarty, Guardian.”
In the description given in the above notice it was printed township “ 42.” An erasure has been made with a pen, and it is changed in ink to read “ 43 ” which is the correct description. Fogarty admits that he made this change. There is not of record in the probate court any order of hearing the petition for license to sell this land by Fogarty either as guardian or as administrator, nor any proof of publication, or other service of such order, nor any order granting any license to sell any of this land for any purpose by him in any capacity. The order above referred to as purporting to be a license of sale granted to him as the administrator of the estate of Michael Houlihan, deceased, was found in the files in probate court. It will be more particularly described later in this opinion. On September 8, 1888, Fogarty reported that he had sold as “'guardian of the heirs of M. Houlihan” the following described lands to the following named persons:
“ The N. W. i of the S. E. \ of sec. 36, 43-35 to William Young at $8 per acre, equals $320.00. The N. E. i of the S. E. of sec. 36, 43-35 to John Swanson at $10.25 per acre equals $410.00. The S. i of the S. E. i of sec. 36, 43-35 to John Dinneen at $8 per acre equals .$640.00.”
On September 14, 1888, Fogarty, as guardian, executed -deeds of the lands above described to the parties above named. The deed executed to defendant John Dinneen purporting to convey the S. i of the S. E. i of section 36, excepting an undivided one-quarter interest in all minerals, is the deed which complainants by this suit ask the •court to set aside. The other deeds are not involved. The bid of Dinneen was made to Fogarty at Escanaba, Delta county, before the sale, and was accepted by Fogarty at Escanaba. Dinneen was not present at the sale in Iron county. At this time the relations between Fogarty, the guardian, and defendants Dinneen, Maloney, •and Donovan, now deceased, but who is represented by an administrator, were that Dinneen and Donovan were sureties upon his bond as administrator, and also upon his ■guardian’s bond, and Maloney was a surety upon what is claimed to be his administrator’s sale bond. The four defendants, Fogarty, Dinneen, Donovan, and Maloney, resided at Escanaba, and were old friends. Within six months after Fogarty as guardian made the deed to Dinneen and while he was yet administrator of the estate of M. Houlihan and guardian of these minors, Dinneen divided the interest he claimed in the premises equally with Fogarty, Donovan, and Maloney, by deeding to each one-fourth thereof, making each the apparent owner of three-sixteenths, and each paid Dinneen exactly one-fourth of $640, the purchase price paid by him. At the time of instituting this suit,' the apparent fee-simple title to the mineral conveyed to Dinneen remains exactly the same as when deeded by Dinneen to Fogarty, Maloney, and Donovan. They received from the Kinneys who purchased the surface land $800 in 1901.
In the year 1903 William J. Tully obtained an option for a mining lease on these premises from the parties claiming to be the owners, including these complainants, and afterwards a mining lease was prepared by Fogarty; but this lease was in some way lost. This option and lease are not in the record. They were procured by Mr. Tully for the purpose of prospecting for iron ore. While he was attempting a sale of his option, the question of the state of title was raised for the first time, and eminent counsel was employed to investigate the title and to procure options for a mining lease. He acted for defendant Tully Mining Company, to which Tully has assigned his rights, and for other clients. Counsel says in his testimony:
“ There were grave doubts in my mind at that time as to whether that sale was valid, and as to whether or not the Houlihans were not entitled to the entire property.”
He succeeded in obtaining another option from complainants to Mr. Tully dated November 2,1903. The first option to Tully was dated January 10, 1903. A few days before November 2, 1903, Mr. Tully’s counsel met Mrs. Ellen Houlihan, the widow, at her daughter’s house in Oconto in October before the 28th. He says:
“I endeavored to make her understand as well as I could just what the situation was, and also that the title of Dinneen, and those claiming under him, was seriously open to question. I advised her to present the matter to her lawyers. The daughter who was sick was present, and the old lady’s mind was very much troubled, and I got over the matter as soon as I could. The daughter was lying there, and I could see her through the door. The old lady seemed to be very nervous and troubled.”
He also talked with a son-in-law of Mrs. Houlihan when he was securing his wife’s signature to an option. The son-in-law testifies that he told some of the Houlihans. This is the first notice any of the complainants had that the validity or regularity of the sale made by Fogarty was questioned. Several of the complainants did not learn of it until late in 1905. Mrs. Houlihan’s interest in these premises, as widow of Michael Houlihan, is not in dispute or questioned by any of the defendants. She is not a party to this suit. The defendants Fogarty, Dinneen, Maloney, and Donovan (by representatives) are the fee claimants, and the real defendants in the case. Defendants Kinney are interested only in the surface land. The defendant mining companies by stipulation with complainants will be unaffected whatever the result of this suit. The foregoing statement of the situation in this case if not sufficiently complete-will be made so as necessity arises. In their answer to the bill of complaint, the principal defendants rely for their source of title upon the conveyance from Fogarty, claiming to act as guardian, and that he as such guardian conveyed to Dinneen, in fee simple, the land in question, and allege the regularity of such sale. Upon the hearing had in the court below a decree was entered dismissing the bill of complaint without costs.
It is insisted by the principal defendants that the proceedings relied upon by them, which were taken by Fogarty to sell the land in question, were valid proceedings and according to law; that, at most, the imperfections in those proceedings pointed out by complainants were mere irregularities which will not make void the sale. They contend that under a valid license to sell as administrator Fogarty followed substantially the essential requirements of the statute in every step taken by him, and in all that he did he acted as administrator. The contention of complainants is that, acting as guardian, Fogarty undertook to make a sale of this real estate, and as such guardian attempted to convey the same to defendant Dinneen; that he did so without authority by license as required by statute; and that he failed in practically all essential particulars to conform with the law. The learned circuit judge took the view, and adopted the theory, of the principal defendants.
Section 9129, 3 Comp. Laws, to which both parties appeal as containing the requirements necessary to the validity of a sale of real estate by executors, administrators, or guardians, provides:
“ In case of an action relating to any estate sold by an executor, administrator or guardian in which an heir or other persons claiming under the deceased or in which the ward, or any person claiming under him shall contest the validity of the sale it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear:
“ First. That the executor, administrator or guardian was licensed to make the sale by the probate court having jurisdiction;
‘ ‘ Second. That he gave a bond which was approved by the judge of probate in case a bond was required upon granting a license;
“ Third. That he took the oath prescribed in this chapter;
“ Fourth. That he gave notice of the time and place of sale as in this chapter prescribed; and
“ Fifth. That the premises were sold accordingly and the sale confirmed by the court, and that they are held by one who purchased them in good faith.”
It must first be determined from this record in what capacity Fogarty acted . in making this sale. If, as is contended by defendants, and determined by the court, he was acting as administrator of the estate of Michael Houlihan, deceased, we must consider the authority under which it is claimed he acted. It is urged that the probate court of Iron county granted him a license to sell as administrator. This claimed license was found in the files of court. No indorsement of filing is written upon it. It was never recorded in the records of the probate court, as provided by law. It is a blank form filled in, purporting to be a license granted to Fogarty as administrator to sell this real estate. It is not signed in the place provided-in the blank. The only signature of the probate judge is to the following form of a certificate which is written upon it:
“State or Michigan, )
“County of Iron. j S' ’
“ I hereby certify that the foregoing is a true copy of the order and of the whole thereof heretofore entered in the above matter authorizing a sale by the said administrator of the above described real estate.
“Dated Sept. 8, 1888.
“Charles Gallagher, “Judge of Probate of said County.”
This date is quite significant. If the first paragraph of this instrument given above is examined, it will show that it is the same date which was first written and after-wards erased, and for which July 25th was substituted. September 8th is the date Fogarty claims the sale was made to Dinneen. The learned circuit judge inclined to the belief that this was the original order, that the probate judge in his carelessness or. ignorance signed it as it appears, and that the presumption was that the erasure was made before its execution — citing Munroe v. Eastman., 31 Mich. 285, and quoting,
Where nothing suspicious appears on the face of the deed beyond the fact that an erasure is momifest.”
If it is accepted as the original, its date is fixed upon its face as September 8, 1888, when it was signed, from which it must be inferred that the correct date was first written in this license when it was made out, and was afterwards changed. An examination of a calendar for the year 1888 shows that September 8th occurred on Saturday and July 25th on Wednesday. The license as mutilated reads, “On Saturday the eighth 25 day of September July,” which is additional proof that the license was not issued before Saturday, September the 8th. Fogarty gave notice of the sale of this land, which will be considered later. This notice and its date of publication is, however, of present importance, as bearing upon the question of the genuineness and validity of the claimed license to the administrator. It will be remembered that it is claimed that this license was granted July 25, 1888. The files of the newspaper in which this notice was published, introduced in evidence, show that the first publication was June 9, 1888, and the last was September 1, 1888. By the notice he claimed to be authorized by the probate court of Iron county to sell this real estate 47 days before July 25,1888.
From the foregoing facts, taken from this record, it would appear that the instant case is readily distinguishable from the case relied upon. Can it be said that nothing suspicious appears on the face of the instrument beyond the fact that an erasure is manifest ? Not only is the face of this instrument clouded with suspicions, but the evidence furnished by Fogarty impeaches its authenticity and forces the conclusion that it was made on the date first written. After a careful consideration of the facts, it is impossible to seriously consider this license as genuine. The only reasonable theory which will account for this instrument is that on the day of the sale it was discovered that no license had ever been granted. Such a paper was necessary to show a license authorizing a sale of this real estate, and this paper was manufactured. We have in this record in the handwriting of Fogarty evidence requesting a similar act by this judge of probate which will be considered later. We find that, in fact, no license was issued as provided by law to Fogarty as administrator authorizing him to make this sale. If the contention that Fogarty acted as administrator in his proceedings to make this sale is admitted, our finding that no license was ever granted to him as administrator for that purpose disposes of it. Without lawful license, no valid sale of real estate can be made by executor, admin, istrator, or guardian.
On the other hand, if Fogarty, as complainants contend, proceeded to make this sale as guardian of these minors, we must determine whether that contention is true, and if found true, whether his proceedings were taken according to the requirements of the statute and the sale consequently valid. The deed by which title, if any, passed to these defendants being their source of title, would naturally be the first item of evidence to challenge attention. In this Fogarty describes himself as “guardian of the heirs of Michael Houlihan,” and he acknowledged the deed as such guardian. Next, the notice given by Fogarty in pursuance of which the sale was made also describes him as guardian of the heirs of M. Houlihan, and signed by him as such guardian. The record shows what purports to be a report of the sale, also signed by him as “Guardianof the heirs of M. Houlihan.” He also as guardian filed an account of proceeds realized from such sale. All of these solemn instruments made and signed by him in the performance of his official acts, not contradicted by any testimony in the record, established beyond question that the grantor of these defendants intended to, and did, make this sale to these defendants as such guardian, and not otherwise. No claim is made in this record, or can be made, that he acted under a mistake. The allegation in their answer, “These defendants further severally answering admit that the defendant Patrick Fogarty claiming to act as guardian of the complainants made, executed and delivered unto John Dinneen a certain deed bearing date the 14th day of September, 1888, * * * whereby for the consideration of $640.00 the said Patrick Fogarty as such guardian conveyed to said John Dinneen in fee simple,” etc., and the further statement in said answer denying the allegation in the bill that Fogarty was not authorized to make such deed as guardian, and the absence of claim or intimation in the answer that he- was acting in any other capacity, are overwhelming evidence of the understanding of these parties, who were grantees in that deed, both at the time it was executed in 1888, and in 1907, when its validity was challenged.
We find no evidence in the record to show that Fogarty acted or intended to act in any other capacity than as guardian in making this sale. Under the statute above quoted, the first essential requirement to make a valid sale of real estate by this guardian was “a license to make the sale by the probate court having jurisdiction.” It is not claimed that the record shows that any license to make this sale was ever granted to the guardian. As already shown, the case was decided upon another theory. The two theories cannot be reconciled. Fogarty at the time was holding two distinct fiduciary offices. He was administrator of the estate of M. Houlihan, deceased. He was also “ In the matter of the estate of Katie Houlihan and others, minors,” appointed guardian of these minors. These were separate estates. His duties as administrator and guardian were distinct and separate. He never petitioned the probate court for a license to sell real estate, “ In the matter of the estate of Katie Houlihan and others, minors,” of which he was guardian. This is practically admitted upon this record. If the paper purporting to be a license to sell real estate could be accepted for what is claimed for it, it appears upon its face that as administrator “ In the matter of the estate of Michael Houlihan, deceased,” he was licensed to sell all real estate whereof decedent died seised, to pay debts, claims, interest, and charges, “subject to the right of dower and the homestead rights of the widow.” It is not claimed by defendants that this was a license to Fogarty as guardian, but it is admitted and was determined to be a proceeding by the administrator, “In the matter of the estate of Michael Houlihan, deceased.” The contention of these defendants indicates that the fact that two separate estates were being administered has been disregarded, not because the record of that fact is in any manner disputed, but because of the fact that in no other way is it possible to give this sale a semblance of validity under the statute. Our determination that no license to sell was ever granted, to Fogarty has eliminated all confusion of the two estates, and the separate offices he held. We find from the great weight of the evidence that Fogarty, as guardian of these minors, was never licensed to make the sale of this real estate by the judge of probate.
We think it proper to consider other alleged fatal defects in these proceedings because of the insistence of counsel for defendants that they were mere irregularities, and for the reason that, if the conclusion as to the irregularities of the claimed administrator’s license is questioned, other defects appear to show the invalidity of this sale. It is undisputed that Fogarty as guardian never gave a sale bond as required by the statute. It follows that no bond was approved. As to the required oath, it appears-from the testimony of Fogarty that he was at Crystal Falls on September 8, 1888, and took an oath before the sale was made. There is no evidence to show that this oath was in writing. No oath was filed as required, and no official record or evidence shows that the required oath was taken. The notice of this sale is already given. It in no essential particular conforms with the requirements of law. The undisputed evidence shows that this notice-as published described land in another township. When Fogarty attached a copy of this notice to the claimed administrator’s license, he changed the number of the township to make a correct description. This notice contains neither time or place of the sale, nor that the land would be sold at public vendue to the highest bidder. It was of no legal effect whatever as notice of a guardian’s or administrator’s sale of real estate. It follows that the sale-was made without notice previously given as required by law. It appears as an undisputed fact from the testimony of Dinneen and Fogarty that the bid of Dinneen was given to and accepted by him at Escanaba, Delta county, not at Crystal Falls, the county seat of Iron county, in which the land was located, nor at Stambaugh. It also appears. that Dinneen was not present in Iron county on the date of the sale. Fogarty testifies:
“ I made the sale the 8th of September, 1888. When I, made the sale, I was either at Stambaugh or Escanaba., It may be possible that I made the sale to Dinneen at Escanaba. Dinneen never went over to Iron River. His. bid was at Escanaba, and it was accepted there.”
The sale therefore was not made according to notice or the provisions of section 9094, 3 Comp. Laws, which requires “ such sale to be in the county where the lands are. situated, at public vendue,” but was made to Dinneen, in. Escanaba, Delta county, where his bid was received and. accepted. It was not made in accordance with the claimed, •authority, which reserved the widow’s dower and homestead interest, nor was the whole of it sold as reported to the court, but with a reservation of one-quarter of the. mineral. The record shows conclusively that no valid, sale was made. The report of the sale was inclosed in a letter from Fogarty to the judge of probate, dated October 9, 1888, which, among other things, contained the following :
“ Inclosed please find my report of sale, and I wish you would send me a confirmation or copy of confirmation of the sale and date it back to about September 10, 1888, • and if necessary to put my report into blank form, you do so and it will be all right.”
This is the instance referred to where Fogarty requested the judge of probate to falsify his record. It is evident that at the time this letter was written the sale h ad not been confirmed by the court, and this is the only evidence in the case relative to confirmation, except a recital in the deed to Dinneen. This was 30 days after the sale and 15 days after the deed was executed and delivered. A slip of paper found in the files apparently torn from a sheet of legal cap bears upon it the following writing:
“ 1. Wednesday, July 25. 2. July 25. Sold September 8. Confirmation given Sept. 10.”
It was considered by the court below as evidence of confirmation of this sale. It is certainly evidence that, if there was a confirmation, it was falsely and fraudulently made and dated back, according to Fogarty’s request, from which it may be conclusively inferred that the other dates now very familiar to the court on this slip of paper were likewise fixed to serve the exigencies which confronted the guardian. A confirmation brought about in this manner cannot be held by this court to be a bona fide valid confirmation contemplated by the statute.
Much stress has been laid upon the bona fides of the fee claimant defendants Fogarty, Dinneen, Donovan, and Maloney. From foregoing intimations in this opinion it is evident that the good faith of Mr. Fogarty is at least questioned, and the fact that within six months after the sale he became a one-fourth owner of the property sold in consideration of $160 while he was yet administrator and guardian, thereby by indirection becoming a purchaser at his own sale, as a matter of law dissipates his defense of a good faith purchaser. The law prohibits such a transaction, and declares it void. Section 909,5, 3 Comp. Laws. This court in construing this statute has held that such a purchase is void, where the title has not passed to a bona fide purchaser without notice, before the sale is impeached. Otis v. Kennedy, 107 Mich. 312 (65 N. W. 219), and cases cited. See, also, Litchfield v. Tunnicliff, 118 Mich. 383 (76 N. W. 760). The explanation of Fogarty and Dinneen as to how Dinneen became a purchaser “just to help out his neighbors the Houlihans,” and how the three others each took an interest from Dinneen “just to help him out,” because he was short of money, does not carry conviction of its truth. It has been explained that three of these men were bondsmen for Fogarty in these estates. It appears from the testimony of Fogarty that quantities of equally good land in that locality were for sale at $1.25 per acre, and yet the above is the only explanation either of them makes why eight dollars an acre were paid by them, or why there was any reservation of minerals. It is apparent that it was expected by these men that minerals underlay this land, otherwise mention of minerals in the deeds and a division of interest in the minerals among them would be foolishness. Whether or not they were in a conspiracy to get this land is not material. None of them can be held to be a bona fide purchaser. All had knowledge of the record of the title deed upon which Dinneen relied. On its face this deed showed that no valid license to sell had ever been granted to Fogarty. The deed was executed and delivered September 14, 1888, and among its recitals stated that the sale was made pursuant to a license granted September 8, 1888, which is the date of the sale, as stated in the deed. Furthermore, the defense of good faith under section 9129, supra, is not available to a purchaser except when all the essential requirements of the statute have been complied with. The defects in the proceedings in this case to sell these premises were not mere irregularities but were fatal and rendered the sale absolutely void. It follows that title never passed from complainants, and they are entitled to the relief asked, unless by their acts or failure to act since knowledge came to them of their rights in the premises. It is admitted by these fee claimant defendants that they cannot establish title by estoppel in pais because of the statute of frauds. It is also admitted that an estoppel will not arise in favor of defendants claiming title.
They urge, however, that an estoppel has arisen in favor of the defendant mining company. This last-named defendant has not answered the bill of complaint. Whether the bill has been taken as confessed against it does not appear. The amended record shows that, by stipulation, whoever succeeds in this suit the interests or rights of that company will in no manner be affected. The record shows that the solicitors for all these parties at the close of the proofs in a colloquy with the court stated that the royalty under the mining lease would follow the decree of the court on the fee, that no estoppel was claimed against complainants by reason of this lease, and the attention of this court has been specifically called to this stipulation, which it is understood will be provided for in the decree if necessary. The joining by complainants in the options and leases did not operate as an estoppel, legal or equitable. The lessees were not induced to enter into these agreements by reason thereof. They were fully informed of all the facts as to the title. They did not do or omit to do anything to their prejudice in consequence or on the faith of such acts of complainants. Authorities need not be cited to show that estoppel will not be created by such acts. The options and leases were not made by complainants with the fee claimants, but are agreements separate and distinct made with the lessees. The first option and lease were given by complainants before any knowledge of an invalid sale. Do these options and leases create estoppel by deed ? The lessor is estopped as against the lessee from asserting ownership of a smaller interest, but not from asserting title to a larger interest than is as-pressed. There is no covenant whatever with the co-lessor. The action in this, case is not founded upon the mining option and lease but is collateral to it, and facts recited or admitted in such instrument do not operate by way of estoppel in this action. 16 Cyc. p. 721, and notes; 11 Am. & Eng. Enc. Law (2d Ed.), p. 401, and notes. The mining lease printed in a supplemental record is too long to be printed in this opinion. The recitals above referred to are simply statements that complainants are collectively owners of an undivided one-fourth of the premises.
There is no question of adverse possession in this case, nor is the statute of limitations invoked. Nor can complainants be charged with laches. After all were fully and completely informed of their rights, reasonable diligence was had in bringing this suit. The relative positions of the parties are not altered to the prejudice of these defendants by any delay of complainants. The deed made to Dinneen is a cloud upon the title of complainants to these premises by reason of the illegality of the sale.
The decree of the circuit court is reversed and a decree will be entered in this court in their favor, declaring the sale of said land by Fogarty null and void, and vacating and setting aside the deed given to Dinneen, as a cloud upon the title of complainants, and that they be decreed to be the owners in fee to all of said premises, subject to the right of dower or other right of Ellen Houlihan, widow, and subject to the rights of defendant Tully Mining Company under the stipulation between the parties, the essential terms thereof to be recited in such decree, and that complainants do recover against said defendants Fogarty, Dinneen, Maloney, and the representatives of Donovan, their costs of both courts to be taxed.
Hooker, Moore, Brooke, and Blair, JJ., concurred. | [
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Bird, C. J.
Plaintiff purchased a horse of the defendants under a claimed warranty that it was sound. Soon after taking the horse into his possession, plaintiff discovered that the horse was blind in one eye, and that the sight of the other was impaired. The horse was affected with amaurosis of the eyes, a disease which affects the optic nerve, and one which is not easily discoverable by the ordinary observer. Plaintiff brought suit on his warranty. The defendants admitted that the horse was blind in one eye, but denied the warranty. The plaintiff recovered a judgment and the defendants assign error.
Upon the question of damages, the court charged the jury, in substance, that, if they found that plaintiff was entitled to recover, they should award him the difference between the value of the horse at the time of the sale, if the horse had been as warranted, and its actual value at that time. Defendants’ counsel takes exception to this instruction, and insists that this was not the proper rule to be applied in this case. We think the court stated the rule correctly, and is in accord with the rule laid down in Barker v. Cleveland, 19 Mich. 230, and Jackson Sleigh Co. v. Holmes, 129 Mich. 370 (88 N. W. 895).
Defendants’ counsel requested the court to charge “ that the plaintiff must show by a preponderance of the evidence that he relied upon the warranty,” and assigns error upon the failure of the court to so instruct the jury. At one place in his charge, the court instructs the jury that:
“You have heard all the evidence in the case, and you are to decide whether, under all the circumstances in the case, Mr. Szepanak warranted that horse to be sound, and you must further, from the evidence in the case, decide whether Mr. Hardy relied on that statement.”
Later in the charge, he instructed them “that there must be a warranty, and a reliance on that warranty, before you can find for the plaintiff.” We think this fairly covered the request of defendants, and gave the jury to understand that, before they could find for the plaintiff, they must not only find a warranty, but that the plaintiff relied on the warranty.
Defendants’ counsel also complains because of the refusal of the court to give the following request:
“ If the plaintiff could have discovered, by a reasonable examination, the defective eyesight of the horse, then he is estopped from claiming damages for such defective eyesight.”
The court did not give this in the language of the request, but instructed the jury upon this question as follows:
“ In regard to the question of warranty, you must take into consideration a latent defect and a patent defect. If the horse had been warranted sound, and had in reality lost an ear, it would be such a defect as any one could see, and he could not claim for such a defect as that. But, if the defect was such that it was necessary to use more than ordinary care in examining it, that could be taken into consideration.”
While the court might have made this part of the charge more clear and explicit, what he did say to them on this subject was, in substance, what was requested by counsel. In view of this, we do not think it can be said that the court refused to give the request.
The other errors assigned have been examined and considered, but we are not of the opinion that they demand a reversal of the case.
The judgment of the trial court is affirmed.
Ostrander, Hooker, Blair, and Stone, JJ., concurred. | [
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Bird, C. J.
The plaintiff, William J. Morgan, commenced this suit against the defendant, Pere Marquette Railroad Company, to recover for injuries to his person and property which were incurred while he was driving on Michigan avenue, at a point where it crosses defendant’s main track in the city of Saginaw.
The record discloses that Michigan avenue extends east and west and crosses defendant’s main track at nearly right angles. Four hundred and ninety-three feet north of the place of the accident two spur tracks lead off from the main track, and extend in a southwesterly direction, and cross Michigan avenue upwards of 200 feet west of the intersection of Michigan avenue with the main track. Superior street extends north and south, parallel with, and contiguous to, the defendant’s main line right of way. On the morning of March 23, 1906, at about the hour of 6 o’clock, plaintiff was traveling east over this highway with his horse and covered milk wagon. The wagon top was provided with glass front and sides and glass rolling doors. The weather was frosty and foggy, and there was a slight covering of snow on the ground. When he came to the west spur, he brought his horse down to a slow walk, and looked and listened. He neither saw nor heard anything, and he proceeded toward the second spur, 22 feet distant. Here he took the same precaution. Two hundred feet east was Superior street and the main track. When he reached Superior street, he brought his horse to a very slow walk and looked and listened. He neither saw nor heard anything indicating an approaching train, and he proceeded on his way across the main track. While in the act of crossing, his horse and wagon were struck by a south-bound engine hauling five or six passenger cars filled with miners on the way to the mines.
The engine was backing up, with no headlight, and practically without a lookout, as the engineer testified that sitting in his cab he could not see the track over the coal on the tender. The testimony further discloses that from 2£ to 3 feet west of the west rail of defendant’s main track to the traveled portion of Superior street there was a dense growth of willows and underbrush from 2 to 12 feet high, which obstructed the view to the north for 48 feet before reaching the main track, and that for a distance of 200 feet west of the west line of Superior street the view to the north was more or less obstructed by the growth of willows and underbrush. The collision killed the horse, demolished the wagon, and threw plaintiff a distance of 40 feet, breaking his leg and otherwise injuring him. When the collision took place, the train was running from 18 to 20 miles an hour. An ordinance of the city of Saginaw was introduced, providing a maximum speed of six miles an hour for trains in the city. Testimony was given that neither the whistle was sounded nor the bell rung as the engine approached the crossing.
The grounds of negligence relied upon by the plaintiff were as follows:
First. In permitting willows, bushes, and underbrush to grow upon the railroad right of way so as to obstruct the view of approaching trains.
Second. The failure of the engineer to sound the whistle and ring the bell.
Third. For exceeding the maximum speed limit fixed by the ordinance.
Fourth. For running the locomotive backwards with no lights displayed.
At the conclusion of the plaintiff’s testimony, defendant’s counsel moved the court to direct a verdict for the defendant for the reason that the plaintiff’s testimony disclosed that he was guilty of contributory negligence. The court took this view of the testimony, and granted defendant’s motion.
Defendant’s counsel do not insist very strenuously that the company was not negligent in some of the ways pointed out by the plaintiff, but they contend that, even if defendant were negligent, the plaintiff so far contributed to his •own injuries that he is precluded from recovering. It is •contended by defendant that plaintiff was possessed of more than the average intelligence, and was familiar with the crossing and knew that the view to the north of the crossing was more or less obstructed, that he knew that there was an early morning train which ran over that part of the road conveying the miners to their work, and that it was not enough for plaintiff to look and listen. He should have stopped and looked and listened when within a reasonable distance from the crossing before attempting to go across. Ordinarily, when a traveler drives upon a railway track without stopping to listen, where his view is obstructed, and in consequence thereof he is injured, he is under the law guilty of contributory negligence, but the rule that he shall stop is not imperative under all circumstances. Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Richmond v. Railway Co., 87 Mich. 374 (49 N. W. 621).
Viewing plaintiff’s conduct in connection with the surroundings and the conduct of the defendant in operating its train without a headlight or lookout, we are unable to say, as a matter of law, that plaintiff so far contributed to his own injuries that it will preclude a recovery. The plaintiff testified, and his testimony is corroborated by two witnesses, that his horse was walking very slowly when he approached the main [crossing as well as the other crossings. He looked and listened at each of the crossings. He understood that a train ran in the early morning conveying the miners to their work, but he had never seen it at this crossing and was not expecting it. He also admits that he knew the conditions at the crossing. Plaintiff testifies that, when he approached the main crossing, he looked up and down Superior street, and listened, but saw no light, and, in fact, saw nothing indicating that a train was approaching. From this point he was 48 feet from the track. For this distance his view to the north was obstructed by the willows and underbrush. He had little reason to expect danger in going that distance.
We cannot say that reasonably prudent men would not do likewise under similar circumstances. Had there been no willows or underbrush on the right of way, he could have observed the train from his wagon before he reached the track. Had the engine been facing the direction in which it was going, and its headlight lighted, plaintiff might have seen the reflected light on the track in time to stop. Plaintiff had a right to assume that, if there were a train approaching, it would be operated in the usual and customary way; that is, that the customary warnings would be given and that a headlight would signal its approach. How far plaintiff was misled, if at all, by the failure of defendant to observe these customary methods of operation, we are unable to say. Therefore we think that the question of whether he should have stopped before attempting to go across was a proper question to submit to the j ury, together with all the other facts and circumstances in connection with it. Van Auken v. Railway Co., 96 Mich. 307 (55 N. W. 971, 22 L. R. A. 33).
Plaintiff insists that the defendant was guilty of gross negligence in running its train through the city and across the streets with no headlight to warn travelers of its approach. Such a practice, to say the least, is an exceedingly dangerous one, and no excuse was offered by the defendant for so operating its train. On the trial, plaintiff’s counsel insisted that operating the train in this manner was in violation of section 6290, 2 Comp. Laws. That section reads as follows:
“ In forming a passenger train upon any railroad operated in this State, the engine shall be placed at the head of the train, and no baggage or freight car shall be placed in the rear of any passenger car; and any officer, agent or other employé who shall cause them to be so placed, or who shall knowingly suffer the same to be done, shall be deemed guilty of a misdemeanor and be punished accordingly.”
The trial court held that this statute had no application to the facts in the case for the reason that the statute was passed for the protection of passengers only. We agree with the trial court that this statute has no application because the facts here disclose that the engine was attached at the head of the train. We are unable, however, to agree with the trial court that the statute was passed for the protection of passengers only. The beneficial effects of this statute to travelers upon the streets and highways are quite as apparent as they are to passengers. To require the engine to be placed at the head of the train would protect travelers at night, as the usual custom in the operation of trains is to place the headlight in front, and, if this were done, it would warn the travelers of its approach. In placing the engine at the head of the train, it would enable the engineer to command a better view of the travelers, and thereby enable him to afford them better protection against collision. Another reason which suggests itself is that the engine is provided with a pilot, which is specially designed to throw off at the side of the track, objects with which it comes in contact, instead of running over them, thereby in many instances preserving human life. This statute is a police regulation, and its protection should be extended to travelers upon the streets and highways as well as to passengers. It will be unnecessary to determine whether this act of operation was gross negligence upon the part of the defendant, as we are of the opinion that the contributory negligence of the plaintiff should have been submitted to the jury upon the whole case.
There are other errors assigned, but, as plaintiff does not discuss them in his brief, no attention will be given them here.
The judgment is reversed, with costs, and a new trial ordered.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Hooker, J.
Complainant sold certain premises to Lezotte upon land contract; his claim being secured by an insurance policy to Lezotte with a provision that the loss, if any, should be paid to him as his interest might appear. When the time for it to expire arrived, Lezotte took a policy in another company; the provision for complainant’s indemnity being omitted. Soon after this, the building upon the premises burned, and Delisle, to whom the policy had been assigned, sued the company which issued the policy and obtained a judgment for the amount of the policy. Thereupon the bill was filed in this case praying a reformation of the policy, and the application of the amount due on the policy to the payment of complainant’s claim and the bill as amended asks that it be treated as a trust fund. The defendants Delisle and Lezotte have appealed from a decree in favor of the complainant.
We see no occasion for a lengthy review of the testimony in this case. As to the question of fact, we are convinced of the truth and justice of the complainant’s claim. The decree rendered upon such conclusion by the learned circuit judge is fully justified by the cases of Miller v. Aldrich, 31 Mich. 408; Balen v. Insurance Co., 67 Mich. 179 (34 N. W. 654); American Ice Co. v. Trust Co., 188 U. S. 626 (23 Sup. Ct. 432), cited by counsel.
The decree is affirmed, with costs against appellants, and a charge against the fund.
Bird, C. J., and Ostrander, Blair, and Stone, JJ., concurred. | [
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Moore, J.
On the morning of February 17, 1907, the plaintiff and her mother started to go from their farm to the city of Adrian in a single buggy. The horse was driven by Mr. Stamp, who worked the farm. He sat upon a blanket rolled up, which was placed between the two women, so he was a little higher up than they were. The highway ran north and south and crossed the tracks of the Detroit, Toledo & Ironton Railroad, and the defendant road, near Madison Center. The conveyance was going north. It passed over the track of the Detroit, Toledo & Ironton Railroad, and the horse had passed the track of the defendant road, when a train coming from south of west struck the buggy and killed Mr. Stamp and the mother of the plaintiff. The plaintiff received injuries at this time, because of which she sued defendant and recovered a judgment, which is brought here for review by writ of error.
Counsel say in their briefs that only one error is urged, and that is the contributory negligence of plaintiff. Their claim is tersely stated in their brief, as follows:
“ If the plaintiff, her mother, and the driver had looked at a time when to have looked would have been effective, they could have seen the train and avoided being injured; that the view was absolutely clear while they drove more than 40 feet. Therefore it is conclusively established that, whatever she may say about having looked and having listened, this court must say that she did not look with that attention or listen with that care which she should have done for her own safety, and that therefore she cannot recover. * * * And we insist that since there can be no other eyewitnesses to the accident, and that the plaintiff has stated all that she knew, she says, or can remember, and that the situation and evidence cannot be changed without taking a position contrary to the one taken by her in her testimony, that the case ought to be reversed without any new trial.”
The serious question is not so much a question of law as one of fact. The printed record contains upwards of 200 pages. In addition to the oral testimony, many photographs, some blueprints, and some tracings, were offered in evidence. It is manifest that a detailed statement of the evidence cannot appear in this opinion. It is the claim of the plaintiff that the horse, which was a spirited one, but a gentle one, was stopped at the hay scales in the highway south of the railway crossing; that all the persons in the carriage looked and listened; that they heard and saw nothing of a train. It is her claim that this was the proper place to stop, look, and listen, and that the view from that point until the depot was passed was obstructed by an outbuilding, by a coal shed, by cars on a siding, and by the depot itself; that by the side of the depot was a platform, by the si,de of that the track of the Detroit, Toledo & Ironton Railroad, and 18 feet from this track and parallel to it is the track of the Wabash road where the accident happened. It is the further claim that, from the time the carriage was stopped until it was struck, its inmates continued to look and listen; that it was unreasonable to ask that the conveyance should be stopped after it passed the station, because this would require it to stop on the track of another railroad, and too near the defendant road; that the train was running 60 miles an hour or more; and that no statutory signals were given. On the part of the defendant, it is claimed that there was a place between the-scales and the depot where an approaching train could have been seen. It is denied that the train was running at a high rate of speed. It is claimed the statutory signals were given, and that plaintiff was guilty of contributory negligence, in that the conveyance was not stopped after the depot was passed, even though it was stopped on a railroad track which it was claimed by defendant was 30 or 35 feet from the Wabash track.
There was testimony given tending to sustain the diverse claims of the parties, but the testimony abounded in contradictions. We think, in view of the contradictory testimony, that the question of contributory negligence was a proper one for the jury. See Hintz v. Railroad Co., 140 Mich. 565 (104 N. W. 23); Corbs v. Railroad Co., 144 Mich. 73 (107 N. W. 892); Wilbur v. Railroad Co., 145 Mich. 344 (108 N. W. 713); and the many cases cited in the opinions in those cases.
Judgment is affirmed.
Ostrander, Hooker, MoAlvav, and Brooke, JJ., concurred. | [
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Stone, J.
{after stating the facts). Did the Complainant by the Terms of the Contract of Employment Become a Stockholder of the Defendant Corporation ?
The same legal principles govern with regard to the elements of a contract for the sale of stock, as apply in the case of contracts generally. It is a general rule that subscriptions to capital stock must be for a definite number of shares. Peninsular R. Co. v. Duncan, 28 Mich. 130; 1 Cook on Corporations (6th Ed.), § 10; 10 Cyc. pp. 380, 381, 390. In Bostwick v. Young, 118 App. Div. 490 (103 N. Y. Supp. 607), it was held that a railroad construction contract, by which work is paid for by stocks and bonds, is not a stock subscription nor a sale of the stock, but is merely a contract. 1 Cook on Corporations (6th Ed.), § 22.
Should Complainant have Demanded the Stock, or Was it the Duty of the Company to Tender it ?
It should be borne in mind that this is not a case where complainant is seeking to rescind a contract and recover the consideration paid. It is rather a case where he seeks to recover upon the contract; the defendant having failed to tender performance by payment, or offer of stock. "We think the case falls within the general rule that, wherever a contract provides for the payment of a given amount in a commodity, the payor has the option to pay in that commodity, or in cash up to, and including, the time payment is due; but, upon failure to pay in the commodity on that date, the obligation becomes one to pay cash. See discussion of this subject in 2 Mechem on Sales, § 1439, et seq., and authorities there cited, including case of Crowl v. Goodenberger, 112 Mich. 683 (71 N. W. 485). Manifestly, this stock was due complainant at the close of each month, as earned. It has been held that, even in case of subscriptions for stock payable in property or labor, the same are not subject to calls, and a demand for the property or labor must be made by the corporation. But upon failure of the subscriber to furnish the property or labor when due, such subscription becomes payable in cash. Here, complainant had fully performed on his part; but, the company having failed to tender the stock when due, the obligation became one to pay in cash.
Has a Court of Equity Jurisdiction, or Has Complainant an Adequate Remedy at Law ?
The defendant company here sought to dispose of. all of its property, real and personal, to pay all of its creditors. There is authority in this State which holds that such a disposition of property amounts to an assignment for the benefit of creditors. See Charles Maloney & Co. v. Gonhue, 152 Mich. 325 (116 N. W. 436), for a review of the cases. If that is the condition, then by express provision of the statute (section 9549, 3 Comp. Laws) chancery has jurisdiction of all questions and disputes arising under the assignment. Without question, there is here a trust relation between the trustee defendants and a creditor. The complainant asserts by his bill that he is a creditor of the corporation, and that his name should have been included in the list of creditors, but that it has been omitted. He asks that he be decreed to be a creditor, and entitled to the benefits conferred by said mortgages. The jurisdiction of a court of equity to enforce trusts, and to decree the execution of trusts, even as to personalty, is well established. 22 Enc. Pl. & Prac. pp. 9, 14, 15; 1 Pomeroy’s Equity Jurisprudence (3d Ed.), §§ 62, 182; Ledyard’s Appeal, 51 Mich. 623 (17 N. W. 208). Neither do we think that the remedy at law, as pointed out by defendants, is an adequate one. While complainant might recover a money judgment in a suit at law, that court would have no power to compel the trustees to give to complainant the benefit under the mortgages, to which he would be entitled, and he might be compelled to invoke the power of equity to enforce his rights.
Is the Bill Multifarious ?
Complainant seeks to enforce his alleged rights under a contract made with the defendant corporation. The mortgages both recognize that if, after the payment of all debts and expenses, any surplus or residue remains, it shall belong to and be returned to said company. We think that the corporation is therefore a proper party, and the prayer for general relief would enable the court to enter a proper decree against it. Primarily, the object of the bill is to establish complainant’s alleged rights as a creditor of the corporation and to compel the trustees to recognize and deal with such rights. There can be no question, therefore, that the trustees are proper parties. Incidentally, complainant asks that the trustees pay him for services rendered by him to them, in their trust capacity, in the course of administering the trust. There was nothing in the mortgages, nor in the accompanying agreement, either authorizing or permitting the trustees to continue the business, or hire a manager. The alleged claim against the trustees for services under the agreement of July 16, 1907, did not, therefore, arise under the aforesaid instruments, or either of them. While it may be that for these services complainant can apply to the chancery side of the court for relief, independently of this suit, he cannot have relief here. But mere surplusage will not render a bill multifarious, and therefore a bill is not rendered multifarious if, in addition to stating a case for equitable relief, it contains allegations with reference to another matter, but insufficient to entitle complainant to relief with reference thereto. 16 Cyc. p. 241; Hammond v. Michigan State Bank, Walk. Ch. (Mich.) 214; Stone v. Railroad Co., 139 Mich. 265 (102 N. W. 752); 14 Enc. Pl. & Prac. p. 205. Therefore a bill is not multifarious for adding to an equitable cause of action matter in which there is no equity. Id.; 1 Daniel’s Chancery Pl. & Prac. p. 346, and note.
The demurrers should have been overruled.
The decree of the superior court will be reversed, and the case remanded for further proceedings. The defendants should be permitted to answer within 30 days after said cause is remitted to the court below; the case then to proceed under the rules of court. The complainant will recover his costs in this court.
Ostrander, Hooker, Moore, and Blair, JJ., concurred. | [
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Stone, J.
The bill of complaint in this cause was filed to quiet complainant’s alleged title to a triangular parcel of land and dock frontage in the city of Detroit, on the Detroit river; also to remove a cloud arising from defendants’ claim of title thereto; also to permanently enjoin defendants from interfering with complainant’s possession of the disputed land, and from removing complainant’s buildings now standing thereon. The answer denies all material averments of the bill. It insists that the title to the disputed parcel is in the city, and that complainant is in wrongful possession thereof. Upon the hearing on pleadings and proofs a decree was entered for the complainant in accordance with the prayer of the bill,, and the defendants have appealed.
In this court the complainant contended that the decree of the circuit court should stand for either of two reasons:
(а) The west line of the disputed triangle is the correct westerly line of that portion of complainant’s lot 193.
(б) Or if this is not so, then complainant has acquired title to the disputed triangle by adverse possession.
It appears that the complainant is the owner of a parcel of land fronting on the Detroit river, bounded on the east by Randolph street, on the north by a public alley, and on the west by property belonging to the city of Detroit, and used by it for a public lighting plant. Complainant’s property is described as lots 193 and 27 (the latter north of the former) of section 4, of Governor and Judges’ plan of Detroit. This property is almost entirely covered by brick and sheet-iron buildings, which have been standing for many years. Upon the entire river front complainant and its predecessors in title have maintained a private dock, extending out into the river, with the same western boundary lines, for about 40 years.
The defendant city owns the property lying west of complainant’s property. It comprises lots 192 and 170 (the latter north of the former ) of said section 4, Governor and Judges’ plan. It also has a dock along the front of its land.
The parcel in dispute is a triangle which was originally wholly under water. It has its apex at a point where the lot line, on land, between lots 192 and 193, intersects the old shore or water line. The easterly line of this triangle is this lot line extended out into the river to the thread of the stream. The westerly line of the disputed triangle is a line, extending from the apex of this triangle on the old shore line, and running out into the river to, and at right angles with, the thread of the stream. The westerly line of complainant’s dock, and of a sheet iron shed standing on the dock, is identical with the westerly line of the disputed triangle.
The location of the disputed parcel can be seen from the following sketch, the lines A C and B C indicating the west and east lines of the triangle. C E D is a part of complainant’s dock, and is included in the disputed triangle CAB.
It is well settled in this State that the boundary line between two adjoining riparian owners, as to the land covered by water, is not in any way dependent upon the direction of the lines on land, but that the lines from the shore should run, as near as may be, perpendicular to the course of the stream. Clark v. Campau, 19 Mich. 325; Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); Rice v. Ruddiman, 10 Mich. 125; Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182; Maxwell v. Bay City Bridge Co., 41 Mich. 453, 466 (2 N. W. 639); Backus v. City of Detroit, 49 Mich. 110-114 (13 N. W. 380, 43 Am. Rep. 447); Webber v. Pere Marquette Boom Co., 62 Mich. 626-636 (30 N. W. 469); Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227 (60 N. W. 681, 25 L. R. A. 815, 47 Am. St. Rep. 516); Pittsburgh, etc., Iron Co. v. Lake Superior Iron Co., 118 Mich. 109-135 (76 N. W. 395).
We do not understand that defendants’ counsel disputes the above proposition, or its application to this case. We quote from his brief wherein he says:
“We are entirely satisfied, and agree with counsel for complainant, that the boundary line between adjoining riparian owners, as to the land covered by water, is not in any way dependent upon the direction of the lines on
land, but that the line from the shore should be run, as near as may be, perpendicularly to the course of the stream. Clark v. Campau, 19 Mich. 338. But the decree entered in the lower court in this case does not follow that rule of law, as a glance at the decree will disclose. At the bottom of page 6 of complainant’s brief it is said:
“‘The west line of the disputed triangle is a line running approximately at right angles to the thread of the stream.’
“ Why not run the line exactly at right angles with the thread of the stream, and have the decree so declare, if it is to stand ? No reason is given for the departure from the rule.”
Complainant answers this criticism of the decree by stating that if the west line of the disputed parcel ran exactly at right angles to the thread of the stream, it would be placed’still farther west than it is, and the undisputed evidence in the record supports this position. The witness George Jerome testified:
“ The westerly line of the property in dispute, the dock property, we projected to the harbor line to make nearly a right angle. It would be less than a right angle. In other words, if the line made is a right angle, it would have to be carried a little bit further west.”
Appellants would seem to have no reason to complain because of the line fixed by the decree.
Being of the opinion that the case is ruled by application, as between adjoining riparian owners, of the doctrine above stated, we do not consider the question of adverse possession.
The decree of the circuit court is affirmed, with costs.
Bird, C. J., and McAlvay, Brooke, and Blair, JJ., concurred. | [
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Cooley, J.
This was an action of trover to recover the value of a certain field of wheat. The trial was without a jury, and the finding of facts is as follows:
That on February 4, 1870, Isabella Cleveland was the owner in fee of certain premises; that on June 13, 1874, she conveyed the same to Frank Cleveland, her son; that upon said sale Frank Cleveland assumed the payment of a mortgage upon said premises, and a note for $1000 given by Isabella Cleveland to Moses W. Wheelock; that he also gave to Isabella Cleveland a mortgage and note for $2500 ; that no payment of principal or interest had be¿n made upon either prior to September 20, 1878; that on January 1, 1878, a' judgment was obtained by the plaintiff against Philander and Frank Cleveland, before one Eussell, a justice ; that on February 16, 1878, execution was issued to one Briggs, a constable, and on April 18, 1878, returned nulla bona; that on September 23,1878, alias execution was issued, and levied on Frank Cleveland’s interest in certain wheat growing upon said premises and on the farm of one Burrows; that on January 12, 1879, the interest of Frank Cleveland in said wheat was sold to plaintiff at constable’s sale for $50 ; that on Sep tember 20, 1878, it was verbally agreed between Frank Cleveland and Isabella Cleveland that she should take back the farm, and he should give her the wheat in question to apply on her mortgage at a valuation of $200, and the same was then and there endorsed on said note and mortgage, which endorsement was made in the presence and with the kn owled ge and consent of Frank Cleveland; that Frank Cleveland exercised no control over the wheat after the arrangement was made; that on June 25,1879, Isabella Cleveland sold and by bill of sale conveyed this wheat to defendant, which bill of sale was fued in the proper town clerk’s office June 30, 1879 ; that on July 30,1879, defendant converted the wheat; that there was of the wheat 215 bushels, worth 95 cents per bushel, and that it was worth 10 cents per bushel to thresh and deliver the same to the Battle Creek market at the time of conversion ; that the highest market price since was $1.35 per bushel; that the transaction between Frank and Isabella Cleveland was in good faith, and not with the design of ■defrauding creditors.
And as a conclusion of law, that said transaction amounted to a sale of his interest in the wheat by Frank Cleveland to Isabella Cleveland, and that the levy and sale were void as against her, and that her interest having been conveyed to the defendant, said levy and sale were void as to him, and judgment should be entered in his favor.
To this conclusion that defendant was entitled to judgment the plaintiff excepted.
The exception is well taken. It is not necessary to consider the question whether the contract, if otherwise valid, required to be evidenced in writing, as it is manifest it was wholly without consideration.
The finding of facts is that the wheat passed from the son to the mother in the arrangement whereby she took back the farm, and that the consideration was that she should endorse $200 on the mortgage. But the taking back of the farm of itself, if a complete transaction, cancelled the mortgage, and it was wholly immaterial to either party whether any endorsement whatever was or was not made upon it. She could not remain mortgagee of the lands after acquiring the fee; at least in the absence of any showing that keeping the mortgage alive was necessary for her protection against the claims •of others.
' The counsel for the plaintiff endeavored on the argument to distinguish between the arrangement whereby the farm was taken back and' that by which the value of the wheat was applied on the mortgage; but the finding leaves no room for the argument. A critical examination of the finding might also enable one to say that it does not show that the note of Frank Cleveland was to be surrendered when the farm was taken hack; and if not, an endorsement which .reduced this would be sufficient consideration for the wheat. But we think the fair construction of the finding is that the land trade was rescinded. Besides, the finding .only says the •endorsement was made on the mortgage; and therefore subjecting it to technical criticism could not aid the defendant.
Another and équally conclusive view of the case is that the land trade from the son to the mother was void for want of writing. If that part of this negotiation was ineffectual, the transfer of the wheat, being inseparably connected with it, was void also.
The plaintiff is entitled to judgment for the value of the wheat, which, less the cost of threshing and delivering, was at the time of conversion, eighty-five cents a bushel. He ia ■also entitled to costs of both courts.
The other Justices concurred. | [
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Marston, C. J.
Where proofs have been taken in a chancery cause in open court and a decree rendered therein the circuit judge lias power after sixty daj's from the date of the decree, under Act No. 26 of the Public Acts tíf 1877, to grant an extension of the time for making and filing a case, provided the time so allowed does not exceed the statutory period of three months. The application need not necessarily be made within sixty days.
The other Justices concurred. | [
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Graves, J.
Drysdall recovered judgment before a justice and the circuit court reversed it on certiorari, and on that reversal this writ of error is brought.
February 21, 1879, the defendant in error, by writing under his hand and in consideration of $100 then paid to him by Drysdall, sold to the latter so much of the oak, ash and basswood, not less than twelve inches on the stump, as he might remove from the south-west quarter of section 34 in township 11 north of range 2 east between the date mentioned and April 1, 1880.
March 21, 1880, Smith conveyed the premises, by warranty deed, to James O. Mclnnis, and there was no mention in the deed of the transaction with Drysdall. About the first of October following Drysdall found out that the land had been conveyed without making an exception of the timber, and he proceeded to talk with Smith about it. The latter explained that it was a mistake and that he would fix it, and according to Drysdall’s claim which Smith does not deny, the latter told him to go upon the land and cut timber and make roads, etc., so as to give notice to the world that he was in possession • that he accordingly went on the land about the 12th of October, and proceeded to cut roads and carry on lumbering ope rations and continued doing so until Mclnnis notified him that he claimed to be owner of the timber, and proposed to sell it; that subsequently one Carl claimed to own the timber and notified him to stop cutting; that he then called on Smith again, who told him he had written him as to what he would do, and on returning home he found Smith’s letter which was in these terms:
“East Saginaw, Mich., Nov. 5, 1879.
J. W. Drysdall, Dsq., 8t. Charles, Mieh.
Dear Sir: Your postal card is received. I do not want you to take any risk on my account, or to expend any more money or labor on the timber with a view of looking to me for indemnity. I am prepared and ready to pay the damages at this time, and will do so if it cannot be arranged in some other way that will suit you better.
Please deliver the enclosed to Mclnnis, after you have read it, and notify me what you want.”
Smith claims that Drysdall had asked him to become responsible for advances to furnish his camp with provisions, and that it was to that he had reference in this letter. • Drysdall made an itemized statement of what he “ wanted ” and presented it to Smith in compliance with the suggestions in the letter. . It covered the $100 paid as consideration, and in addition thereto, $159.27 charged for work and expenses performed and incurred pursuant to Smith’s directions to go on and make roads and commence lumbering, etc. He claims that Smith agreed to pay the amount if he would subscribe a writing then made by Smith on the back of the statement, and that he then consented and in fact signed that writing, but that Smith immediately placed the paper in his desk and refused to pay; that Smith then agreed however to call in a few days and pay the amount in case he was not able to arrange the matter with Mclnnis so that he, Drysdall, could have the timber, and that Smith accordingly did endeavor to get an adjustment which would enable him to have it, but was unable to make any. Smith does not deny this explanation any further than this: He says he did not agree to pay the amount of the bill or any amount whatever; that he never intended to have the plaintiff understand that he would pay anything more than he was legally bound to pay.
Now it is important to observe that the plaintiff based his action on these transactions which grew out of the contract to sell the timber, and the conveyance by Smith to Mclnnis, and not on the breach, if there was one, of the contract of sale itself. That contract, together with the grant to Mclnnis, were mere matters of inducement. The parties assumed that a breach of the contract of sale had been caused by the deed to Mclnnis, and the plaintiff thereupon, at the request of defendant, made an amount of expense which, as plaintiff claims, the defendant agreed to pay together with the purchase price of the timber. Whether this claim was well or ill based was for the jury.
The case presents two questions, and they arise upon rulings made by the justice in excluding and admitting evidence. 'First. The court refused to allow evidence that Mclnnis had notice at the time he received the deed, that the timber had been sold to plaintiff. The reasons given for the ruling aré of no importance. The purpose of the proof was to show that in point of law Mclnnis, the grantee of Smith, was not in a position to enable him to defeat the sale of the timber. But this was not material to the issue. The cause of action did not turn upon that 'hinge. Whether the plaintiff, in a controversy with Mclnnis, might or might not have held the timber, the right growing out of the new arrangement would not be changed. Second. The plaintiff was allowed to testify that if he had obtained the timber he would have made a profit of at least $100 and probably three or four hundred. It is very plain that this'evidence was not consistent with the theory of the case. It was not competent to claim profits and at the same time recall the price paid for the materials and insist on payment of all the outlay.
But the récord satisfactorily shows that the defendant was not prejudiced. The jury allowed only $209.21, and it seems plain on inspecting the items of the claim and other features of the case, that nothing was given for profits. The bill the plaintiff rendered to the defendant, and which specified the particulars of tlie claim, was, as previously stated, for $259.27, and it contained no charge for profits. On the occasion on which it was rendered the defendant gave to the plaintiff $50 as a temporary expedient and under a special understanding concerning its application, and it is only necessary to deduct this money from the plaintiff’s bill to obtain the exact amount found by the jury. They evidently confined their verdict to that claim, after deducting the $50 as payment, and as it embraced nothing for profits none were allowed. It follows that the rulings by the justice were not such as to impugn his judgment.
The determination of the circuit court must be reversed with costs and the judgment of tlie justice affirmed.
The other Justices concurred. | [
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Graves J.
Leech recovered judgment against Lane before a justice of the peace, and the circuit court affirmed it on certiorari. Lane asks a reversal on writ of error.
On the return day of the summons the parties respectively appeared and put in their pleadings, and on motion of defendant Lane the justice adjourned the cause. On the adjourned day the parties again appeared, and after the refusal by the justice of the defendant’s motion to require the plaintiff Leech to give security for costs, on his admission that he was not responsible, the cause was again adjourned on defendant’s motion, and during the time of this continuance the attorneys stipulated in writing for a further postponement of thirty days. The stipulation was not dated and the plaintiff’s attorney left it with the justice, and he thereupon entered an adjournment for thirty days from that time. The case was subsequently adjourned several times at the instance of the plaintiff’s attorney and on defendant’s failure to appear. 1
The proceedings on these occasions were not regular. The last postponement was until the 18th of October and at that time both parties attended by their attorneys and answered, and the essential point in the case is whether the defendant’s attorney on that occasion appeared specially and for the specific pirrpose of arresting the suit on account of previous irregularities, or whether his appearance went fur ther and had reference to additional and future proceedings in the cause. If the first position is the true one, there was no waiver of the errors which had been committed. But if the appearance was for another purpose and with a view to , prolong the pendency of the action, and it contemplated a step adapted to a case regularly on foot, it was a waiver of the prior defects. Falkner v. Beers 2 Doug. (Mich.) 117; Clapp v. Graves 26 N. Y. 418; Briggs v. Humphrey 1 Allen 371; Rittenour v. M'Causland 5 Blackf. 540; Heeron v. Beckwith 1 Wis. 17; State v. Messmore 14 Wis. 115 ; U. M. T. Co. v. Whittaker 16 Wis. 220; Baizer v. Lasch 28 Wis. 268; Abbott v. Semple 25 Ill. 107; Swift v. Lee 65 Ill. 336 ; Ulmer v. Hiatt 4 Greene (Ia.) 439; Clark v. Blackwell id. 441; Deshler v. Foster Morris 403.
Now the justice returns that the defendant’s attorney, on answering to the case, first applied for an adjournment to a later hour of the same day, and that the plaintiff’s attorney objected, and that the motion was decided adversely to the defendant; that on the termination of that proceeding the defendant’s attorney stated that he appeared specially to object to further proceedings, and that he, the justice, 'overruled such objections as were then made.
The motion for a continuance was a step in the cause, and one which meant that the action should be presently kept on foot, and there was nothing to qualify it. The subsequent explanation did not abate its effect. It was not made until the motion was denied, and at that time the representation of the parties had become complete and the irregularities were waived.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
Two verdicts have been recovered by defendant in error in this case, the first of which we set aside and ordered a new trial. The second, with the judgment upon it, is now before us. It is alleged for error that the circuit court erred in proceeding to a second trial in the case, because before doing so a petition had been filed for the removal of the ease to the circuit court of the United States, whereby the jurisdiction of the State court was superseded. On th$ other hand, it is insisted that there were fatal defects in the proceedings to remove the case to the Federal court, which required and compelled the court helow to overrule the petition. No other question but this is now before us.
An inspection of the record shows that the order of this court, setting aside the first verdict and judgment, was made June 13, 1876. The remittitur was applied for and issued August 29, 1876, but for some unexplained reason was not filed in the court below until September 1, 1877. The petition for the removal of the cause is dated September 7, 1876, and the affidavit on which it was based, was made on that day. Ila d it been immediately presented, it must have been denied without an examination of its merits. This is settled by Vannevar v. Bryant 21 Wall. 41 and Railroad Co. v. MocKinley 99 U. S. 147, in which it was decided that a party cannot move for the transfer of his case to the Federal court for a second trial until his right to have a second trial has been perfected, and this is not done until remittitur is filed.
The petition, however, was not presented to the State court for its consideration until September 21, 1877, more than a year after its date, and the bond was not perfected until September 15, 1877. And the question now is, whether a showing made at a time when the case is not in condition for moving can he retained in the office of counsel and made use of a year or any indefinite time afterwards when the necessary steps shall have been taken to put the case in the proper condition.
The ground on which the transfer was demanded was that “from prejudice and local influence the said Metropolitan Life Insurance Company of New York, the defendant in said cause, will not be able to obtain justice in the State court, where the same is now pending.” The showing of cause was upon belief merely, as it must be usually, since the nature of the case will scarcely admit of more. Now nothing can be more evident than that a cause which may have prejudiced a fair trial in September, 1876, may have wholly passed away in September, 1877, or that a showing made in the most perfect good faith and on grounds apparently sufficient at the first date, may, long before the year was over, have been shown, to the satisfaction of the party making it, entirely mistaken and baseless. Indeed it is possible to conceive that stale papers may have been used because new papers could not be verified; for local feelings and prejudices change frequently, and a prejudice against one party at one date may be equally strong in his favor in much less time than had elapsed in this case. Courts must- often take notice of such changes; a railroad company may have a whole community ready to tax their estates to aid in the spring, and equally ready to tear up its track in the fall, and an accused party when he has been convicted may have the same persons petitioning for his pardon who strove as a mob to hang him when first arrested. Such changes are too common to be ignored in legislation, and those not so striking in character are often sufficient to affect the general sentiment of a community without attracting much attention. We have no doubt that the intention of the statute permitting such transfers is that the showing of cause and the motion upon it should be substantially contemporaneous. We will not undertake to say what lapse of time after the one and before the other would be overlooked, but it is plain that after a year the showing has lost its force and cannot avail to move the judicial mind.
As this is the sole error relied upon, the judgment must be affirmed with costs.
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Marston, C. J.
Eleazer Tracy died in May, 1877, leaving a will in which he had made certain bequests, the first being to his widow, the complainant, $4400, and to the others $2000. The will was duly probated and letters issued to defendants. The complainant renounced her dower in his estate, accepting the legacy in lieu thereof under the statute. Claims have been proved against his estate to upwards of $5000. The real and personal estate of the deceased is insufficient to pay the debts and legacies. The executors are about to sell the lands of the deceased, and complainant claims that because she accepted her legacy in lieu of dower in the lands of her husband, she is in the position of a purchaser for a valuable consideration, and that she is, therefore, entitled to "priority over the other legatees and creditors, and that her legacy is a permanent lien upon the lands of which ■her husband died seized, and that she is entitled to have the same satisfied out of the proceeds of such sale before any of the other legacies or claims against the estate are paid.
There is a conflict in the authorities as to the rights of the widow under the facts stated.
In Burridge v. Bradyl 1 P. Wms. 127, where £3400 was devised for the purchase of annuities to be enjoyed by the wife of the deceased, she releasing her dower, it was held she was entitled.to preference over the pecuniary legacies. This was put upon the ground that she was a purchaser of the annuities for her life, by her releasing her dower. This was followed in Davenhill v. Fletcher Amb. 244, citing the above'case, and also Blower v. M'orret, since reported,in 2. Ves. 420. This same rule has also been adopted and followed in New York and some other States, as a reference to authorities cited, by counsel for complainant will show.
In New Jersey the above rule is not followed, the court saying that where a provision is made by will for a wife, in lieu of dower, she is not bound to accept, and that time is given her to determine, as in this State, whether to take the bounty of her husband or the dower at law; that the provision in the will may be more valuable than dower, and if so, there could be no possible equity in charging it on the land as against the devisee. Paxson v. Potts 3 N. J. Eq. 313.
In Maryland the court said the widow was to be considered as a purchaser of the devise to the value of her share ordegal right. If the devise falls short of the value of her dower, she is to be recompensed out of the residue of the estate, but if it exceeds, such-excess would be subject to the claims of others. Thomas v. Wood 1 Md. Ch. 300.
The difficulty with this last view arises when we attempt to place a value upon the widow’s dower. Such interest is one for her life, and the value thereof would depend upon so many contingencies that it would be wholly uncertain. So if we adopt the view of the early English decisions, the creditors of the deceased are left entirely at his mercy, subject only to the right to attack the bequest as fraudulent. This we think would be likely to create litigation in many cases where the bequest would not be largely, if at all, in excess of the fair value of her dower interest. Accepting as correct the doctrine of those cases which hold- that the widow becomes á purchaser of the legacy by releasing her dower, the contract is not a completed one until her acceptance of the provisions of the will after her husband’s decease. Had he purchased from his wife her dower, and given her his note therefor, upon his death such obligation, if not paid, would simply become a claim against his estate, and take its place, when proven against the estate, with the other allowed claims. The husband, during his life-time, wishing to make arrangements to have his wife release her dower interest in the lands of which he should die seized, makes an offer therefor which is not to be submitted to her for acceptance until after Ms decease. If then accepted, the consideration co be paid becomes a claim and charge against his estate, and takes precedence over the legacies. It is but a debt against the estate. If there are sufficient assets to pay all the claims allowed against the estate in full, the widow receives the full amount of her claim; if not, she receives her ¡pro rata share with the other creditors. This, while just to the creditors, cannot be considered as unjust to the widow; as she has ample time, after the decease of her husband, to determine whether she will sell her dower right by accepting the provisions of the will, or reject such legacy and retain her dower. This but carries out to a logical conclusion the principle asserted in the authorities of a purchase and sale, and is, we think, a much safer rule, and less likely to lead to injustice or vexatious litigation, than the one which complainant seeks to have established by her bill.
The decree of the court below will be modified, and a decree entered in accordance with this opinion. Costs will be paid out of the estate.
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Campbell, J.
Corbitt sued'to recover damages for the conversion of certain horses which he claims were unlawfully taken from him by defendants and sold by their procurement. The facts so far as material are these :
Brong held a mortgage for purchase money of these horses and some other property,- executed to him in November, 1877, by the original purchaser from him, James Farley, due $200 in six and $200 in nine months, with power to take possession in case of any attempt to sell or remove them from Grand Bapids. Farley sold them in a few days to James H. Brown. Shortly thereafter Brong assigned the mortgage to one Lord, who took possession of the horses and continued in possession until just before this controversy arose, in June, 1879.
In March, 1878, Brong accepted a re-assignment of the mortgage from Lord, who had pnt the horses in charge of one Kennedy, and who paid Kennedy for their keeping. Lord then took charge of the'horses withBrong’s knowledge and approval.
On the 18th of March, 187S, Brong and Lord signed a note on Lord’s private account to one Fitch for $60, and both joined in a chattel mortgage of the horses to him. This was reduced by Lord to $40. In June, 1879, Brong paid this note and procured an assignment to Purnell in order to keep up the claim against Lord. Purnell, without Brong’s knowledge, assigned it to Corbitt for $42, which was afterwards paid to Brong by Purnell, but it is not found that Brong knew where the money came from. Brong’s name was cut off from the note, which was overdue.
In June, 1879, three days after Brong’s settlement with Fitch, Brong sent a constable to demand the property from Lord under the Farley mortgage, who told the officer he must demand of Corbitt. A replevin was then sued out in Purnell’s name, and the property taken and sold under the Farley mortgage. No further proceedings were had in the replevin case. Corbin bought up a claim of Lord for keeping the horses. Lord never presented it to Brong, and Brong did not know he claimed anything.
Corbitt now claims that he is entitled to redress because he owned the Fitch mortgage, and also because of the claim for keeping the horses.
It may be true that Mr. Fitch could have held his mortgage paramount to any claim of Brong under the Farley mortgage. But when Brong, who was the only party interested in the horses, paid Fitch and cut off his own name from the note, there was nothing left except the right against Lord. And Corbitt by purchasing this mutilated and past-due note and making no inquiry of Brong, cannot treat him as estopped to deny this mortgage as an existing lien. Brong when Purnell paid him the balance, due from Lord, had a right to suppose the whole transaction was ended, and that he might enforce his Farley mortgage.
This being so, Corbitt had no claim on the horses, and cannot complain that they were.taken away from him. ¥e see no reason to hold there was anything fraudulent in replevying them. That is the only remedy to get property specifically; and there is no finding of bad faith. Even if there liad been, it is-not easy to see why the defendant in replevin had not as good a remedy in that proceeding as in any other. And he certainly would have no claim for the value of property which did not belong to him.'
There is nothing in the case to show that there was any reason why Brong should owe Lord for care of the horses. There was no such understanding, and under all the circumstances it was not unnatural in* the absence of any claim to that effect, to suppose that Lord found their use- sufficient to satisfy him for his trouble.' The court below was satisfied that no such claim existed, and the finding of facts does not preclude the correctness of such a conclusion.
We think the court did not err in holding that Mr. Corbitt made out no case.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
A motion is made to dismiss the appeal upon two grounds:
(1) The failure of the appellants to file a claim of appeal with the register in chancery of the circuit court for the county of Delta within 40 days after the settlement of the case.
(2) The failure of the appellants to pay to the register of the court the sum of $5 within 40 days after the settlement and filing of the case in the lower court.
The record shows the entry of the decree December 23, 1909, the filing of the bond on appeal January 29, 1910, the filing of the claim of appeal February 10,1910, the filing of the case settled April 19, 1910, and the payment of the -fee June 13, 1910. Section 2 of Act No. 299 of the Public Acts of 1909 provides for filing claim of appeal and payment of $5 to the register within 40 days after the settlement of the case on appeal. The first ground for dismissal was passed upon adversely to the contention of the mover in Patterson v. Hynes, 148 Mich. 581 (112 N. W. 129).
Touching the second ground urged, we find from the affidavit of the register that, while the #5 fee was not in fact paid within the time limited by statute, the register considered it as paid, gave solicitors for defendants personal credit for the same, and made no demand therefor. The money was actually paid on June 18, 1910. These facts constitute a sufficient compliance with the statute.
The motion is denied. | [
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Moore, J.
This is an action of garnishment by which the garnishee defendant is sought to be held liable for the debt of the principal defendant to the plaintiff, under the terms of the so-called ‘ ‘ sales in bulk act ” (Act No. 228, Pub. Acts 1905), which provides that sales of stocks of merchandise, etc., otherwise than in the ordinary course of trade, etc., shall be void as against the creditors of the seller, unless the seller shall make at least five days before the sale a detailed inventory showing the cost price, etc., and the purchaser demands and receives of the seller a certified list, under oath, of his creditors, and shall at least five days before taking possession or paying for stock notify personally or by registered mail, every creditor contained in the list, or of which he has knowledge, of the proposed sale and the price, terms, and conditions thereof. From a judgment in favor of plaintiff the defendant has brought the case here for review.
On the 20th day of February, A. D. 1906, Adam Kan-gas sold his stock of groceries to the garnishee defendant. The defendant took possession of the stock at once, and has continued the business in his own name. At the time of this sale the terms of the act were not observed. The purchase price was $2,000. The final payment of $192.27 was not made until March 13, 1906. It is claimed this was about two weeks after the plaintiff had knowledge of the sale. The plaintiff, however, claims it had no knowledge of the details of the sale. At the time of the sale Mr. Kangas was a depositor at the plaintiff’s bank, and also owed the plaintiff $351.50 upon a note which came due the day of the sale. The plaintiff’s cashier testified that at the time of the sale, and on the opening of business on this day, the deposit balance was $163.12. In each instance, when the renewal notes were given, the old note was canceled and delivered to the maker. Both the principal and garnishee suit was commenced in the court below on the 21st day of February, 1908. The trial judge found that the garnishee defendant did not know that the principal defendant owed the plaintiff’s bank any thing until demand was made upon him for its payment just prior to the beginning of the suit. He also found that the garnishee defendant was a good-faith purchaser of this stock of goods, except as the sale was affected by the sales in bulk statute. The garnishee defendant offered to prove that at the time of his purchase he knew nothing about this sales in bulk statute, but the court below refused to allow such proof, claiming that the same was immaterial. On the 27th day of February, 1906, the principal defendant paid $151.50 on the note due on the 20th day of February, and gave a new note for the balance of $200 to become due March 22, 1906. On the morning of the 27th day of February, 1906, the principal defendant had on deposit with the plaintiff bank $316.88. On March 28, 1906, the principal defendant paid $100 and the accrued interest upon said note, which became due on March 22, 1906, leaving a balance due the plaintiff of $100, for which indebtedness he gave a new note dated March 22, 1906, to become due in 30 days, which is the note upon which the judgment in the principal case was rendered.
It is the claim of defendant that the sale is not void, but voidable. It is further claimed:
“Our position is that it is the creditor whose debt existed at the time of the sale, who is protected by this statute, and that a creditor who, after knowledge of the sale, wipes out the old debt and accepts part payment from his debtor, and a new obligation for the balance, thus extending the time of payment of his debtor, is not such a creditor as is contemplated by this statute.”
It was further claimed that defendant was a good-faith purchaser, as he knew nothing of the statute; that plaintiff should have acted promptly, and not rested on his rights. It is further claimed that, as Mr. Nangas told plaintiff he had sold out to defendant, this accomplished the purpose of the statute. We quote from brief:
“When a creditor receives an oral notice from the purchaser, and if he thinks that this notice is not full enough, we do not think this statute would allow him to wait for a period of years, and then attack the sale on the ground that the notice was not complete under the statute, but rather that the duty would devolve upon him (the creditor ) to demand from the purchaser the particulars of the sale required to make the notice full and complete; and, if the creditor at the time of the notice, or subsequently within a reasonable time, does not ask for such fuller and more complete notice, he must be deemed to have waived the same.”
That part of the statute material to the discussion reads as follows:
“ Section 1. The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or the merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the seller, transferror or assignor, shall he void as against the creditors of the seller, transferror, or assignor, unless the seller, transferror, assignor, and purchaser, transferee and assignee, shall at least five days before the sale, make a full detailed inventory, showing the quantity and, so far as possible with exercise of reasonable diligence, the cost price to the seller, transferror and assignor of each article tobe included in the sale; and unless the purchaser, transferee and assignee demands and receives from the seller, transferror and assignor a written list of names and addresses of the creditors of the seller, transferror and assignor, with the amount of indebtness due or owing to each, and certified by the seller, transferror and assignor, under oath, to be a full, accurate and complete list of his creditors, and of his indebtedness; and unless the purchaser, transferee and assignee shall, at least five days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally, or by registered mail, every creditor whose name and address are stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof.
“Seo. 2. Any purchaser, transferee or assignee, who shall not conform to the provisions of this act, shall, upon application of any of the creditors of the seller, transferror or assignor become a receiver and be held accountable to such creditors for all the goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale, transfer or assignment: Provided, however, That any purchaser, transferee or assignee, who shall conform to the provisions of this act, shall not in any way be held accountable to any creditor of the seller, transferror or assignor, or to the seller, transferror or assignor for any of the goods, wares, merchandise or fixtures that have come into the possession of said purchaser, transferee or assignee by virtue of such sale, transfer or assignment.”
The language of the statute is clear and unambiguous. Its construction has been before this court. In Spurr v. Travis, 145 Mich. 721 (108 N. W. 1090, 116 Am. St. Rep. 330), its validity was sustained. This decision was cited with approval in Farrar v. Coal Co., 149 Mich. 118 (112 N. W. 726). The act was again before the court in Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409); where it was held that the act was valid, and that the garnishee process might be used. The contentions of counsel for defendant which have heretofore been stated are so ably discussed and met by the opinion of the trial judge that we cannot do better than reproduce it here. We quote:
“ That Koivisto did not conform to the provisions of said act is very plain. Action has been taken by the plaintiff as a creditor of the seller. This renders Koivisto a receiver, and makes him accountable to the plaintiff, unless the plaintiff has waived its rights, or by its conduct become estopped from invoking this statute. It is clear that if the creditor does not make application, or set the provisions of the statute in motion, then he waives his right. But this plaintiff has acted. When must the creditor move ? It is evident that he must act within the five days when the purchaser has conformed to the provisions of the act, for when the purchaser has so acted he ‘ shall not in any way be held accountable to any creditor, or to the seller for.any of the goods that have come into his possession by virtue of such sale.’
“ I hold it not material for Koivisto to show that he was ignorant of this law. Suppose that both parties were ignorant of it, would that change their relation to it, or to each other ? I think not.
“But it is urged that the plaintiff by its silence for two years should be held to have waived its rights, and to be equitably estopped from taking these proceedings. It never received the notice contemplated by the statute. It is true that Kangas informed it that he had sold out, and that Koivisto was in possession. It never had notice of the price, terms, or conditions of the sale. It does not seem to me that Koivisto is in a position to invoke the doctrine of an estoppel. He did not pay over his money to Kan-gas and take possession of the stock relying upon the validity of Kangas’ notice to the plaintiff, for he had no knowledge or notice of it. His position has not been injured by this delay of the plaintiff to garnish. Had the plaintiff by its conduct or language induced Koivisto to part with his money, another question would be before us. It is the essence of an estoppel that the person claiming its benefits was induced thereby to do the thing he did. One who has not changed his position in reliance on conduct or statement may not set it up. State Sav. Bank of Ionia v. Montgomery, 126 Mich. 327 (85 N. W. 879); Hubbard v. Shepard, 117 Mich. 25 (75 N. W. 92, 72 Am. St. Rep. 548); Lilly v. Townsend, 110 Mich. 253 (68 N. W. 136); Maxwell v. Bridge Co., 46 Mich. 282 (9 N. W. 410). There can be no estoppel unless a party is misled to his prejudice by the one against whom it is set up, and does material acts relying upon the conduct well calculated to mislead him. Murray v. Rugg, 116 Mich. 519 (74 N. W. 878); Palmer v. Williams, 24 Mich. 328; De Mill v. Moffat, 49 Mich. 125 (13 N. W. 387); Meisel v. Welles, 107 Mich. 453 (65 N. W. 289). Had the plaintiff by anything it said or did induced Koivisto to pay over his money, then it could not assert a claim inconsistent with its conduct; but there is no such case before us. Neither do I see how the doctrine of waiver can be invoked by the garnishee. An implied waiver is akin to estoppel in pais. It is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right. 29 Am. & Eng. Enc. Law (2d Ed.), p. 1091. Bishop on Contracts, at section 792, says:
“ ‘Waiver, in a general way, may be said to occur whenever one in possession of a right conferred either by law or by contract, and, knowing the attendant facts, does or forbears to do something inconsistent with the existence of the right, or of his intention to rely upon it, in which case he is said to have waived it, and is es-topped from claiming anything by reason of it afterwards. United Firemen’s Ins. Co. v. Thomas, 27 C. C. A. 42, 82 Fed. 406 (47 L. R. A. 450).’
“Noivisto did not comply with the provisions of the statute in question. It cannot be said that the plaintiff had full knowledge of all of the facts of this sale, of the price, terms, and conditions thereof. A thousand conjectures might be indulged why it did not act. It may-have supposed that the terms of the sale were such that it would be protected. It may have been willing to rely upon the ability and willingness of Nangas to pay it. Would it thereby be precluded from the right to sue Nan-gas, and garnish anybody who held property as a receiver, and was accountable to it ? Certainly not. < So it seems to me that Noivisto cannot successfully invoke either the doctrine of estoppel or of waiver.
“ I do not think that there was anything in the condition of the bank account of Nangas with the plaintiff which made it the duty of the bank to set off the amount of the note against the deposit indebtedness, for the reason, if none other existed, that the deposit account did not equal the amount of the note indebtedness at maturity at any time. But we may go a step further. Even treating Noivisto as a surety, there would be no such duty upon the bank even had the deposit account been larger. In the well-considered case of Davenport v. State Banking Co., 126 Ga. 136 (54 S. E. 977, 8 L. R. A. [N. S.] 944, 115 Am. St. Rep. 68], it was held that the mere fact that a bank which is the owner of a note upon which there is a surety is at its maturity indebted upon general deposit account to the principal upon the note in a sum larger than that due upon the note, and fails to exercise the right to set off the amount of the note against this deposit indebtedness, and allows the deposit to be checked out by such depositor, does not discharge the surety on the note. So, in any view of the case which I am able to take, I think that upon the undisputed evidence the plaintiff is entitled toa verdict in this case.”
The judgment is affirmed.
Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred. | [
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Blair, J.
This is an action of assumpsit upon a lease, executed March 16, 1907, containing, among other provisions, the following:
“Witnesseth, that the said party of the first part has agreed to let, and does hereby let to the said party of the second part, and the said party of the second part has agreed to take, and hereby does take, from the said party of the first part the following described premises situated in the city of Ann Arbor, county of Washtenaw and State of Michigan, to wit, the house and premises known as number 611 Church street in the city of Ann Arbor, State of Michigan, to be occupied as a residence by said second party with the privilege of keeping roomers and boarders. On this lease all moneys that are due or to become due shall be deposited in the State Savings Bank of Ann Arbor, Michigan, to the credit of Hudson T. Morton. For the term of three years (with the privilege of making it five) to commence on the first day of September, 1907.”
Defendant gave notice under her plea of the general issue that she would prove that at the time she rented the house the defendant falsely and fraudulently represented to her that the house could be properly heated by the furnace then in the house, and that, in reliance upon these representations, she went to great expense in fitting up the house to accommodate student roomers and suffered great damages, in consequence of the failure of the furnace to properly heat the house, which she would claim by way of recoupment.
Defendant occupied the house for 10 months and was finally ousted by summary proceedings, and this action was brought to recover the balance of the rent reserved in the lease.
In the course of the cross-examination of plaintiff, the following occurred:
“Mr. Burke: The defense is that under this lease there is a purpose for which this house was leased, that it was unfit for that purpose and Mr. Morton made certain representations. We have given notice in our plea that he made these representations. The lease was made with the privilege of keeping roomers. We expect to show that it was not only the privilege, but the purpose of the renter in accepting the contract. I think we have the right to show what the intent and purpose of the lease or contract is. This is not an attempt to change or vary the terms of the written agreement in any sense.
“ The Court: What do you say to that ?
“Mr. Brown: I think the arrangement was finally merged in the written instrument and that shows.
“Mr. Burke: We ought to be able to show any legal defect in those premises which was known to the plaintiff, but could not be known to the defendant, and which would entirely change the consideration of the lease.
“ The Court: The language of this lease is that it was with the privilege of keeping roomers and boarders. If you are seeking to show that the house was not suitable by reason of this poor heating plant it is my impression that it is not competent evidence, and that you cannot show it. You are not entitled to show that the house was not properly heated, that the heating arrangements would not heat the house properly. This case was tried once before and that testimony was admitted, but on reflection I am satisfied that was not competent. My present view is that I ought not to admit it.”
Defendant testified in her own behalf:
“ The first thing I asked him (Morton) on the ISth day of March was whether the house would heat.
“ Mr. Brown: I object to any conversation at this time for the reason that it was merged in the written contract.
“ The Court: I am inclined to think if you seek to show the heating plant of this house was inadequate to heat the rooms properly you are not entitled to show that under this lease. That is not a defense to an action on this lease. If the heating plant was inadequate she was under no obligation to remain there, but if she did she is bound by it, and it would be no defense to an action for rent to show that that house was not properly heated.
“Mr. Burke: We take exception to the ruling of the court. Do I understand that the fact that the defendant had relied upon the representations of Mr. Morton, and had purchased furniture and moved there with the idea of keeping roomers, and she found she could not do so (because of the imperfect heating) that that defense could not be interposed to avoid payment of rent ?
“ Thé Court: Yes. Somewhat reluctantly I came to that conclusion, but I am satisfied that there is no implied guaranty that the apparatus is sufficient to heat according to her notion.
“Mr. Burke: We take exception to the ruling of the court. The case turns upon whether or not the defect in the heating plant can be shown in defense on this action. We have no further testimony.”
The court directed a verdict for plaintiff, and defendant brings the record to this court for review.
The position of defendant is shown by the following extract from the brief:
“We contend that the failure of the heating plant to operate in a manner suitable for the purpose for which the house was rented caused the consideration for which the defendant was to pay rent, to utterly fail.
‘“The law will not imply any covenant or warranty * * * with regard to the physical condition of the premises at the time of the letting, that they are in a tenantable condition.’
“This is the general rule as laid down in 18 Am. & Eng. Enc. Law (2d Ed.), p. 613. But, where the lease limits the use of the premises to certain specified purposes without showing any intent on the part of the parties that the lessee should fit them for such purposes, there is an implied stipulation that the premises are fit for the specified purposes. This is identically the case in the lease under consideration. 1 Taylor on Landlord and Tenant (9th Ed.), p. 481. This rule is followed by the case of Young v. Collett, 63 Mich. 331 (29 N. W. 850), which is the leading case on this question arising upon a lease.”
The general rule undoubtedly is that, in the absence of fraud, there is no implied covenant that premises are fit for the purpose for which they are leased. Doyle v. Railway Co., 147 U. S. 413 (13 Sup. Ct. 333); Jaffe v. Harteau, 56 N. Y. 398 (15 Am. Rep. 438); Clark v. Babcock, 23 Mich. 164; Rhoades v. Seidel, 139 Mich. 608 (102 N. W. 1025).
In Young v. Collett, 63 Mich. 331 (29 N. W. 850), upon which defendant relies, it is said:
“ When a landlord rents a building, and in the lease, as in this case, limits its use to a certain specified purpose, and the tenant agrees to do no more than keep the same in as good repair as when taken, it is evident that the landlord recommends the building as suitable for that purpose in the condition it then is, if there are no modify ing clauses to the contrary contained in the lease, and it should be so held; otherwise there would be no consideration for the tenant’s agreement to pay rent. Tyler v. Disbrow, 40 Mich. 415; Smith v. Marrable, 11 Mees. & W. 5; West Side Sav. Bank v. Newton, 76 N. Y. 616; Salisbury v. Marshal, 4 Car. & P. 65.”
This language was unnecessary to the determination of the case. The defendants had given up the room to the plaintiff for repairs, and he had taken possession for that purpose and taken up the floor of the lodgeroom, rendering the room untenantable,—
“And it was while in this situation the defendants were unable to get the landlord to make the needed change and repairs. This neglect to make the change and repairs necessary was, under all the circumstances, an eviction by the landlord.”
Where, however, the landlord makes false or fraudulent representations as to material facts not obvious to the lessee, or, knowing such facts, of which the lessee is excusably ignorant, and which would seriously impair the value of the lease, conceals them, he may beheld liable to the lessee for damages incurred in consequence thereof, in an action for fraud and deceit, or the lessee may recoup such damages in the landlord’s suit for rent. Steefel v. Rothschild, 179 N. Y. 273 (72 N. E. 112); Pryor v. Foster, 1 N. Y. Supp. 774; Norris v. McFadden, 159 Mich. 424 (124 N. W. 54).
While the tenant, by remaining in possession, waives the right to rescind the lease, he does not waive his claim for damages for the fraud and deceit whereby he was induced to enter into the lease. Pryor v. Foster, supra.
We are therefore of the opinion that the court erred in refusing to permit defendant to show the alleged false and fraudulent representations as to the furnace set up in her' notice.
The judgment is reversed and a new trial granted.
Bird, C. J., and Ostrander, Hooker, and Stone, JJ., concurred. | [
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Blair, J.
Complainants filed the bill of complaint in this case to enforce a mechanic’s lien against the defendant Ford as owner, and the defendant Goddard as masonry contractor, for the erection of a certain office building known as the “Ford Building,” on the northwest corner of Congress and Griswold streets in the city of Detroit.
On the 18th day of September, 1906, Vaughan & Dumont and Goddard entered into a contract, portions of which we quote, as follows:
“Whereas, F. H. Goddard has taken a contract for the erection of a building on the northwest corner of Gris-wold aná. Congress streets, in the city of Detroit, Michigan, which contract includes the construction of forty-seven caissons according to plans and specifications of D. H. Burnham & Company, architects of said building; and,
“Whereas, J. C. Dumont and J. W. Vaughan have agreed to construct said caissons as subcontractors under said Goddard.
“ Now, therefore, it is agreed between said J. C. Dumont and J. W. Vaughan, as parties of the first part, and said F. H. Goddard, as party of the second part, as follows:
“ 1. Said J. C. Dumont and J. W. Vaughan shall construct said forty-seven caissons ready to receive the columns according to said plans and specifications within sixty days from the date of delivery of the rings hereinafter mentioned for the sum of sixty-nine thousand, eight hundred and sixty-seven dollars ($69,867). * * *
“ 10, The foregoing agreement contemplates excavation to depth of one hundred and twenty feet. If the excavation is less than one hundred and twenty feet then there shall be a rebate to Goddard of the amount of such shortage at the rate of 36 -jVo- cents per cubic foot. If it becomes necessary to excavate below one hundred and twenty feet then for such extra excavation up to one hundred and thirty feet said Dumont and Vaughan shall be paid at the rate of 36 cents per cubic foot. For all work below one hundred and thirty feet the price shall-hereafter be agreed upon, which price shall not exceed exact cost.”
The specifications for foundations and masonry provided, among other things:
“The caissons are to be excavated to bedrock, for which purpose this contractor shall provide all necessary wood lagging, steel rings, bracings, etc. The bedrock exists on an average one hundred and twenty (120) feet beneath grade line. This contractor shall estimate on a basis of 120 feet below grade, and shall give a price per foot for additions to or deductions from this depth. * * *
“Caisson construction: This contractor shall build -caisson foundations as shown on both the engineering and architect’s drawings, digging to be thoroughly braced and protected until concrete piers are complete; jacks and drums to be used where necessary. Shafts to be kept straight and plumb and carried down to bedrock. This •contractor shall estimate on a basis of depth of 120 feet below grade line to bedrock and shall give a price per foot for additions to or deductions from this depth.”
Complainants entered upon and proceeded with the work of excavating the caissons, or wells, for the cement piers until October 20, 1906, when water and gas burst into one of the wells, which had reached a depth of over 120 feet, and the work was stopped by mutual consent. By mutual consent, a new plan was substituted for the original plan. By the new plan, which was satisfactorily executed by complainants, the concrete piers were to go down 95 feet instead of 120 feet, and were to be belled with three or four bells in each well.
October 9,1908, the owners of the Moffat building com menced suit against all of the parties to this suit to recover damages for their alleged removal of lateral support. A lien is claimed in the claim of lien and in the bill for a balance of $39,879.01, with interest from February 18, 1907. The circuit court entered a decree granting a lien for the sum of $19,581.50, with interest, and appeals have been taken by both defendants. Complainants have not appealed.
Defendant Ford appeals upon the grounds:
“(1) Because the amount allowed is excessive; and
“(2) Because the claim as presented was excessive;
“(3) Because with the Moffat block suit pending, the court cannot determine whether or not there is any balance due from the owner to the principal contractor, Goddard.”
Defendant Goddard appeals upon the following grounds:
“1. The trial court erred in his findings in disallowing defendant Goddard’s claims against complainants.
“ 2. The court erred in allowing complainants’ claims for extras.”
With reference to the contract determining the rights, of the parties, the court determined that upon the happening of the accident—
“Both architects, contractor and subcontractor at that time felt that some changes under the existing circumstances would be desirable. At the end of the four or five days, the exact time matters not, the architects had brought forth the plans, which were subsequently followed in this case, whereby the support of the building was to rest upon piers in which there were three or more bells, I think, to each pier, or caisson, as it may be called, of concrete, and this plan was adopted in lieu, I think, of the original design which contemplated going through to solid rock. I am very certain that all parties at that, time recognized the impossibility for the contract price, or anything like the contract price, of the putting through of the caissons, if you may call them such, to the bedrock, and I am satisfied from the evidence that it was agreed between the parties at that time that the plan of belling, I think, as it is called, should be substituted in place of the original design of going through to bedrock. Now under these circumstances there can he no question in my mind but what the basis of the payment for this contract should be the contract price. It is testified, I think, on behalf of both parties, of all parties, in fact, that it was represented, I think, to Vaughan and Dumont, at that time, that the contents of the bells and the concrete work to be done under the new plan was substantially the same a3 under the old, and I think they are entitled for any excess there may exist to claim as an extra the difference between the actual — what would have been required under the original plans — and the actual volume which they put into the piers or caissons and bells as completed.”
It is conceded that there was due from Goddard to complainants a balance of $15,685, and the controversy as to the amount of complainants’ claim concerns the following items, which defendants contend were either improperly allowed to complainants, or improperly charged against defendant Goddard, viz.:
(a) Extra concrete............................. $692 45
(b) Pumping water............................ 200 00
(c) Cantilevers................................ 1,010 94
(d) Melchers’ salary........................... 969 90
(e) Hughes’salary............................. 44 75
(f) Page’s salary ............................... 14 95
(g) Alley paving.............................._ 298 16
(h) Lost sacks ............................... 219 85
(i) Office expenses_____________________________ 445 50
Total..................................... $3,896 50
(a) Mr. Gavier, chief engineer of construction for D. H. Burnham & Co., of Chicago, the architects of the building, testified that at the time of the substitution of the' belling plan he told the parties that there would be approximately the same amount of cubical contents in both schemes. Mr. Dumont testified that Gavier said that the amount of concrete would be the same in both plans.
“And he says: ‘ I made it so that the amount of concrete which the bells take equals the amount that it will take to go down 120 feet.’ It meant that 25 feet cut off would replace the concrete in the bells. And he says, ‘ I believe that you are about 53 cubic feet to the good.’ ‘ Well,’ I says, £ that won’t make much difference one way or another, and we will try to go ahead and do it.’ ”
Mr. Goddard testified:
“Q. What, if anything, was said about the substitution of this new plan for the old by you ?
. “A. Why, they said if Mr. Gavier said it was the same thing he was satisfied. That is, we told him that included what was already excavated, just as it stood; the whole thing was practically equal or approximately equal to the new system. * * *
“Q. And which of them said what you referred to a moment ago in the testimony, that if the work was the same — something of that kind ?
“A. Dumont.
“Q, And what was that ?
“A. If the contents were the same, why it was all right with him.”
It is apparent from this testimony that Mr. Dumont understood that he would be required to fill practically the same space with concrete under the substituted plan as under the original. Assuming that the understanding was that the cubical contents of the wells would be approximately the same under both plans, we do not think that such representation was sustained by proof that there was only 1,049 cubic feet difference in a total of 170,837 cubic feet. The word ‘ ‘ approximately ” is to be construed with reference to the subject-matter. An estimate of the cost of constructing a building, where uncertain factors enter into the estimate, might well be held to be approximately correct, although the actual cost exceeded the estimated cost by more than the difference in this case. But where, as in this case, the problem is a mathematical one of figuring the cubical contents of figures of definite dimensions admitting of accurate results, we agree with the circuit judge that the representation cannot be said to be approximately correct.
It is urged, however, that under the substituted plan the amount of excavation would be lessened by 13,331 cubic feet of 2-inch lagging required under the first plan. Under the original plan, the 2-inch lagging lining the wells was to be left in. Under the substituted plan complainants were required to remove it. This order was complied with by complainants, and, according to Mr. Dumont, increased their work and prevented their working to the best advantage. The new arrangement was with reference to the space which complainants would have to fill with concrete; and the amount which they might gain and the added difficulties they might meet, otherwise than in the amount of concrete, were not considered except as, perhaps, they might be thought to offset each other. Mr. Gavier testified:
“Q. Was it not your understanding — I ask you in a fair way — your interpretation of what was said there, that they were to go ahead on the representation of there being the same number of cubic feet of concrete, at the contract price ?
“M. Why, I certainly had that impression; yes, sir.
“Q. Now do you know, and did you prepare any figures—
“ The Court: Do you mean to say that is, according to your recollection, the substance of your conversation that then took place ?
“A. Yes, sir.”
We, therefore, agree with tne circuit judge that complainants were entitled to compensation for the extra concreting at the price adopted from the testimony of Mr. Dumont.
(&) The only pumping of water for which complainants were entitled to charge under their contract, in our opinion, relates to the water which Dumont testified flooded the basement through Mr. Goddard’s taking up the curbstone and the acts of Hughes’, the basement contractors’, men digging holes through the clay banked up around the caissons to protect them. It appears from Mr. Goddard’s testimony that he gave orders to Mr. Hughes’ men with reference to starting the grillage, and, in the absence of evidence to the contrary, we do not think the record justifies a finding that the flooding of the wells arose from the acts of an independent contractor, even if this would, protect Goddard, if he was responsible for flooding the basement. We therefore agree with the conclusion of the circuit judge as to this item.
(c) The contract between Ford and Goddard provided:
“Steel in foundations: The steel erecting contractor shall deliver the grillage beams to the building, which the masonry contractor shall set in place. All other steel work in the foundations shall be set in place by the steel erecting contractor, the masonry contractor enclosing and completely encasing same with concrete as shown by the drawings, and herein specified.”
The proposal of Dumont of August 29, 1906, to construct the caissons for $71,280 contained the following:
“This figure includes all material and labor for setting-iron up to base of columns and cantilevers. Iron to be furnished by other contractor.”
His proposal of September 1st, which was accepted, waa as follows:
“ My revised figure for the caissons, learning the thickness of lumber for lagging, is $69,867. The contents of my previous letter of August 29, ’06, are to be the same.”'
On February 23, 1907, the architects wrote the following letter to complainants:
“ Gentlemen: The digging of the 47 caissons of the-Ford building have been completed, and we wish to say that you have given us a very excellent concrete job. We feel perfectly certain that our foundations are O. K. in every respect. This includes the setting of the grill-age.”
In view of complainants’ proposal and the acceptance of the caissons as completed by the architects, we think the court properly construed the contract between complainants and Goddard as not requiring them to encase certain cantilever beams in concrete. As to the other items, we agree with the findings of the circuit judge, without further discussion.
An examination of the long record has satisfied us of "the correctness of the finding of the circuit judge that, notwithstanding the disparity between the claim as filed and the amount found due, the excessive claim was made and filed in good faith, and therefore should not bar the attaching of the lien.
Does the pendency of the suit for damages prevent a final determination ? Goddard, by his contract, assumed the obligation to indemnify Ford against such liability as is involved in the suit by the owners of the Moffat building, but we find no such contractual obligation on the part of complainants to protect Goddard against liability. The facts as disclosed by this record, in the absence of contractual liability, do not indicate any liability on the part of complainants to either Ford or Goddard. The plans and specifications of the original and substituted schemes were prepared for the owner by an engineer of wide experience and unquestioned eminence in his profession, and by their contract complainants were subject to the directions of the architects and executed the work to their satisfaction, as evidenced, among other things, by their final certificate approving the work.
The important question, therefore, for determination, is: Does the contingent liability of Goddard to Ford operate to prevent or postpone the determination of the amount of complainants’ lien against the building ? We agree with the contention of counsel for complainants that our statute (3 Comp. Laws, §§ 10710-10745) provides for a direct lien in behalf of the persons entitled thereto and not one by subrogation to the rights of the contractors, and that they are therefore not bound by the stipulations of. the original contract as to liens or the amounts to be paid thereon, except as to the amount of the contract price. Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114, 80 N. W. 797); Clough v. McDonald, 18 Kan. 114.
The same statute, however, which gives the lien provides :
“The owner, part owner, or lessee shall not be liable to .the subcontractor, materialmen or laborers, for any greater amount than he contracted to pay the original contractor and shall be entitled to recoup any damages which, he may sustain by reason of any failure or omission in the performance of such contract.” 3 Comp. Laws, § 10710.
This statute limits the amount of the liens of subcontractors, etc., to the amount legally due under the original contract, after deducting from the contract, among other' proper items of credit, such damages as may be awarded to' the owner “by reason of any failure or omission in the' performance of such contract.” J. E. Greilick Co. v. Rogers, 144 Mich. 313 (107 N. W. 885).
The answer of defendant Ford makes no reference to a. threatened suit, nor was it amended after the institution of the damage suit to state that fact. The only reference in the answer to complainants’ right to a lien is contained in paragraph 12, as follows:
“ Twelfth. This defendant further answering shows that he is advised that the complainants are not entitled to a lien upon said premises for the work and labor alleged to have been performed by them, and therefore denies that complainants are entitled to the relief prayed for in their bill of complaint, and therefore prays that the bill of complaint may be dismissed, and that this defendant may be awarded his reasonable costs and charges, in. this behalf most wrongfully sustained.”
The answer of defendant Goddard refers to a threatened, suit and by amendment there was added the following:
“That said owners of said Moffat building have, since the answer of defendant Goddard was filed in this cause, begun said threatened suit alleging damages, $200,000,. which said suit is now pending in this court; and this defendant asks this court in this cause to stay all proceedings by complainants for the collection of any part of said amount this defendant admits is owing by him to complainants, and from the collection of any of whatever sum of money may be decreed complainants in this suit, until said damage suits against this defendant above referred to have _ been completed, and until all damages awarded, therein have been fully paid.”
The brief for defendant Goddard does not discuss the question presented by his answer only, of the effect of the damage suit. The question is argued at length in the brief for defendant Ford, whose answer presents no such question. The proofs in this record would not have sustained an allegation of a failure or omission in the performance of the contract, so far as the execution of the work was concerned, but, on the contrary, the evidence demonstrates to our satisfaction that, so far as the parties to this suit were concerned, the contract was fully performed.
The decree is affirmed, with costs to complainants.
Moore, McAlvay, Brooke, and Stone, JJ., concurred. | [
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McAlvay, J.
This was an action for damages for personal injuries received by plaintiff, as he claims, by reason of the negligence of defendants. Defendants were co-partners, engaged in business as contractors and builders, and, at the time plaintiff was injured, were engaged in the construction of a brick building in the city of Monroe. Plaintiff, a common laborer, had worked for defendants prior to his injury for over two months, while they were engaged upon other contracts. On this building his work, that of a common laborer, was wheeling brick. While so employed on the day in question, he was ordered by one of the defendants to assist in building a scaffold in said building, under the direction and in the manner ordered by said defendant, and afterwards was ordered by said defendant to go upon said scaffold, to work in placing brick which were tossed up to him, and while so employed about 30 feet in length of the scaffold gave way, as he claims, because of insufficient nailing, and plaintiff was precipitated about 12 feet to the floor, with the brick upon him, and was severely and probably permanently injured.
After hearing all of the evidence of the parties, the court instructed a verdict in favor of defendants, on the ground that plaintiff had assumed the risk. Judgment was accordingly entered, and plaintiff, upon writ of error, asks for a reversal, upon the ground, principally, that the court erred in instructing a verdict for defendants.
As has been very frequently stated by this court in cases where a verdict has been instructed, the case made by the party ruled against must be taken as true in determining whether there was anything to be submitted to the jury. The strength or weakness of the evidence presented by the opposite party need not be considered.
The evidence of the plaintiff and his witnesses tends to show that he was a common laborer, employed up to the day of the accident in wheeling, brick or other common labor; that on this day he was ordered to assist this defendant in building this scaffold, under his direction and orders and in his presence; that he was ordered by him not to use more than three nails in nailing the support of the scaffold called the “ledger board,” and not to drive them clear up, but to leave sufficient to get the hammer claw under the heads of the nails, so that they could be easily drawn without splitting the boards; that plaintiff followed such instructions ; that this was the first scaffold he had ever built, and he had no knowledge of how scaffolding should be built to be sufficiently strong, and did this work and went upon the scaffold relying upon the judgment and obeying the ordérs of defendants, without any knowledge of its weakness; that this defendant assured plaintiff the scaffold was strong enough to hold an elephant, and he thought that was enough; that a scaffold so nailed, to he used for the purpose this one was used, was not sufficiently nailed, and not safe; and that it fell because this nailing pulled apart and let it down. This brief outline of plaintiff’s case is sufficient to show that there was a case proper to be submitted to the jury. This should have been done by the court under proper instructions. It was error for the court to instruct a verdict for defendants.
The judgment is.reversed, and a new trial ordered.
Ostrander, Hooker, Moore, and Brooke, JJ., concurred. | [
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Campbell, J.
In this case the facts are the same as in the case of the same garnishee as plaintiff in error against Singer and Benedict, except that in the present case the suit against the principal debtor is alleged to be pending in the Mason circuit court. There are, however, some peculiarities about the proceedings which may projoerly be referred to, that are not found in the other case so distinctly.
By referring to the amendatory act of 1879 it will be found among other things to have changed the requisites of garnishee process in these particulars from the old statute. It provides for actions on contract, adding the words “ express or implied ” which were not in the old statute, and which have always been included in the attachment laws. This change would not by itself be important if the affidavit, which formerly was only required to aver an indebtedness, were not now required to aver it as existing “ on such contract, judgment or decree,” thus indicating a purpose to require fuller averments of identity than before. The present affidavit, while averring a suit on contract, not only fails to set up whether it is on express or implied contract, but also in no way connects the indebtedness sworn to, either with the suit or with any contract. When a statute introduces such changes by amendment, it must be regarded as designed to secure more distinct allegations, and to require greater particularity than before. No inference can be raised in favor of an affidavit which contains no information within the amendments.
Another important change is that while the old law, which is repealed by the new section, applied to suits “whether commenced by summons, capias, declaration, or writ of attachment,” the new law omits suits by declaration. We need not inquire whether this does or does not change the extent of relief. The suit mentioned in the affidavit was commenced by declaration.
The statute in order to avoid needless vexation, requires a distinct averment under oath that the “ plaintiff or affiant ” is justly apprehensive of the loss of his debt unless a wiit of garnishment issue to the garnishee named. The old law, although allowing either the plaintiff or his agent or attorney to swear to the affidavit, required it to aver that the “ plaintiff” was justly apprehensive. It is not easy to see how an agent could swear to the apprehension of another person, and the new law has obviated that absurdity. The affidavit in this case, though made by an attorney, does not aver that “ affiant ” has any such apprehension (which was within his personal knowledge), but that “plaintiff” had, which he could not know. Moreover he does not aver fear of loss unless the writ issue to the garnishee, but unless it issue to Manville. This is most probably a mere slip, but it nevertheless is not the statutory averment, and there is no responsible statement of this important jurisdictional fact.
As the assignments of error cover the defect of jurisdiction, and the writ, which does not itself conform to the affidavit in other respects, was issued without legal authority, we do not think it desirable to inquire into the regularity of the subsequent action.
We, however, feel bound to suggest that this remedy is a harsh and peculiar one and ought not to be resorted to without sufficient reason. The statutes give several grounds of possible garnishee liability- — putting them, however, in the alternative. A person cannot truly swear he has good reason to believe in the existence of any of these causes, unless he has something like tangible information from which he can determine whether the garnishee is a debtor, or a custodian of property, or in what particular way he is liable. If it is possible, it certainly is not probable that the same garnishee is liable in every way; and yet the present affidavit covers every kind of liability, although the writ leaves out indebtedness which very possibly was the real ground intended. It is very unjust to allow any such sweeping averment to overcome the sworn denial of the garnishee far enough to allow him to be further vexed without a more specific showing. We are not required now to discuss the validity of such vague charges to subject a party to expense and personal trouble. But we are very clear that no presumptions should be allowed to help out such a case.
The judgment must be reversed with costs of both courts.
The other Justices concurred. | [
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Marston, C. J.
If the question were now for the first time presented to this court as to the judicial power which could, under our Constitution, be conferred upon circuit court commissioners, we might hesitate. Under the cases which have recognized such a power as being properly conferred, we are of opinion that the commissioner did have authority to tax the costs and issue execution for the collection thereof. This is certainly no greater than the authority exercised in issuing commitments. The question was a proper one to be passed upon by this court, and while the writ will issue as prayed, no costs will be allowed.
The other Justices concurred. | [
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Cooley, J.
The plaintiff in error has been convicted in the Recorder’s Court of Detroit upon an information charging him with obtaining twenty-five dollars of one Burley by false pretenses. The pretense alleged was “ that he, the said John Higler, was then and there engaged in store-keeping in Cadillac, Wexford County, Michigan.” No further repre mentations are set np as accompanying this false pretense, whereby it was made effective. The question now is whether the information will.sustain the conviction.
The statute under which the information was filed is as follows:
“Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, cause any person to grant, convey, assign, demise, lease or mortgage any land * * or obtain the signature of any person to any written instrument, the making whereof would be punishable as forgery, or obtain from any person any money, personal property or valuable thing, or by means of any false weights or measures, obtain a larger amount or quantity of property than rvas bargained for, * * * shall be punished by imprisonment,” etc. Public Acts, 1879, p. 197.
It is said that this statute enumerates certain kinds of false pretenses, and that according to a familiar rule of construction the “ other” pretenses which the statute intends can be those only which are of a kindred nature to those which are mentioned. State v. Simpson 3 Hawks 620; State v. Sumner 10 Vt. 589. But the rule has no application, because this statute does not attempt an enumeration of the pretenses that shall be held criminal. False tokens are mentioned, but the term is general, not particular, and the same may be said of false writings. The idea suggested to the mind by these is something cognizable to the sight or touch. “ Any other false pretense ” is a specification equally general, and will embrace other classes.
It is said further that the pretense, to be within the statute, must be one calculated to deceive a man of ordinary prudence, and that if it be a false representation of facts, these facts must be such as were calculated to influence a person of common caution to part with that which was obtained. Is the false representation that one is a “ store-keeper ” a pretense of this sort? It may be true and yet the man be utterly without responsibility and without character; and in that case the fact of the business would offer no security that a loan made in reliance upon it would be repaid. The term is indefinite: it may mean a wholesale merchant, or a petty dealer in toys or candies; it may imply a principal, or an agent or a servant; it may be applied to one notoriously without capital and who lives by his wits rather than by legitimate trades; in short, disconnected from all else, it can never indicate that the person who bears the designation is one who can safely be trusted with a loan.
All this is true; and if the reliance in accommodating another person with a loan were pecuniary means or responsibility, it might be very conclusive. But, notoriously, the fact is otherwise. Men are trusted in large amounts every day who have no pecuniary responsibility, and are known to have none. Sometimes the reliance for repayment will be a supposed business ability; sometimes on a business that would be injured by the existence of overdue debts; but most often, perhaps, a reputation for integrity. And if in any case the existence of any particular fact would be likely to beget confidence, there is no reason why a false assertion of its existence should not be a criminal pretense, as much as would be a false assertion of pecuniary responsibility, provided it is equally relied upon, and equally effectual to accomplish the fraud designed.
Pecuniary responsibility is no more a necessary attendant upon a commission in the army than upon the keeping of a store; but the false assertion that one holds such a commission has been held a false pretense. Regina v. Hamilton 1 Cox C. C. 244; s. c. on appeal 9 Q. B. 271; Thomas v. People 34 N. Y. 351. So the pretense that one is buying horses as a gentleman’s servant may be a criminal false pretense,, though the fact of service by itself would not be likely to inspire confidence except in connection with the further fact, expressed or understood, that the master was to pay the purchase price. Rex v. Dale 7 C. & P. 352.
Now it is unquestionable that the fact that one is a storekeeper is one which would be likely to give a degree of confidence and credit. There is an implication, if not of solvency, at least of the possession of considerable means, in the very idea that one is keeping a store; with no knowledge of his responsibility one would sooner trust him for small sums than if he had no business, or if his business were unknown. A store-keeper is not expected to refuse payment of small debts, whether payment can or cannot be enforced; it is inconsistent with business prosperity that he should do so, and prima facie he will have in his hands the means whereby such debts may be paid. And if such a person, when away from home, had occasion to borrow a few dollars for expenses, a lender would trust, not to his responsibility, but to* his honor, for re payment, and would probably ask no questions further, after learning what was his business.
But the question of the materiality of the pretense is one rather of fact than of law. If it was false', and had a tendency to deceive, and did actually deceive and accomplish the intended fraud, the case is within the statute. Regina v. Hamilton, supra.
“ The materiality and the influence of the pretenses in question is for the jury to determine on evidence by verdict; unless some inducing circumstances upon the face of the indictment sliow that the pretenses are clearly immaterial and could not influence credit. The averment of the pretenses by the indictment is only to give the defendant notice of what may be proved against him; the mode of obtaining need not be pleaded; and if any pretense is capable of defrauding, that is sufficient.” Thomas v. People, supra. The pretenses in that case were that the prisoner was a chaplain in the army, just returned from the ánny and wanted money to get home with; and it was said of them: “ A court cannot say, as a matter of law, that these were not material representations, and were not calculated to deceive; and to induce credit; and were not within the statute, which speaks of obtaining by any false pretense.”
In this case the jury has found that the pretense was both false and effectual. There are no exceptions in the case, but the question of sufficiency is raised upon the face of the information itself. It is a question, therefore, whether the pretense is one which can, under any circumstances, be within the statute, and not whether it was so in the particular case under the facts disclosed by the evidence. As was said in Thomas' Case, we cannot say as a matter of law that the pretense was not within the statute.
The judgment must be affirmed.
Graves and Marston, JJ., concurred.
The information was as follows:
State of Michigan, County of Wayne, City of Detroit. — ss: The Recorder’s Court in and for the city of Detroit, in said county, of the March term thereof, in the year of our Lord one thousand eight hundred and eighty. In the name of the people of the State of Michigan, I, Henry N. Brevoort, prosecuting attorney in and for the county of Wayne, who prosecute for and on behalf of the people of said State, in said court, come now in said court, and give the said court now here to understand and be informed that John Higler, late of the city of Detroit, heretofore, to wit, on the third day of February, A. D. 1880, at the said city of Detroit, in the county aforesaid, having applied to one Lafayette Burley to loan him, the said John Higler, the sum of $25 in money, and in order to induce the said Lafayette Burley to believe him, the said John Higler, "worthy of credit, and loan him, the said John Higler, the said sum of money, to wit, $25 in money, of the value of $25, with intent to cheat ■and defraud said Lafayette Burley, he, the said John Higler, did then and there designedly, falsely, fraudulently, and feloniously represent and pretend to the said Lafayette Burley, that he, the said John Higler, was then, and there engaged in store-keeping in Cadillac, Wexford county, Michigan, and he, the said Lafayette Burley, believing and relying upon the ■said false pretenses and representations, so made as aforesaid by the said John Higler, and being then and there deceived thereby, and being then ■and there induced thereby, was induced to make said loan and to deliver, and did then and there deliver, to the said Higler, the sum of $25, of the moneys, goods and chattels of •him, the said Lafayette Burley. And the said John I-Iigler did then and there designedly, knowingly, falsely, fraudulently, and feloniously obtain from the said Lafayette Burley, by means of the said false, fraudulent, and felonious pretenses aforesaid, .$25 in money, of the value of $25 of the personal property, goods, and ■chattels of him, the said Lafayette Burley.
Whereas, in truth and in fact, the said John Higler was not then and there, to wit, on the third day of February, A. D. 1880, engaged as a store-keeper at Cadillac, Wexford county, Michigan, or at any other time ■or place; allLof which the said John Higler then and there well knew, to the great damage and deception of the said Lafayette Burley, and to the evil example of all others in like cases offending, contrary to the form of the statute in such case made and provided, and against the peace and ■dignity of the people of the State of Michigan.
Henry N. Brevoort,
Prosecuting Attorney of Wayne County, Mich. | [
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Campbell, J.
Bridgman and Bacon were sued as successive endorsers of a note made by Anderson Russell and Henderson Russell, in December, 1873, payable to Bridgman or order with interest at ten per cent, three years frona date. This was one of three notes payable at different times and secured by mortgage. Bridgman transferred them all with the mortgage to Bacon, endorsing the notes, and Bacon endorsed and transferred them to Mrs. Clark.
In August, 1875, the mortgage was foreclosed on the first note by advertisement and the property bid in by Mrs. Clark. She subsequently conveyed the premises by warranty deed to one Caesar Lenhart for $1050. Having done this, she sued the third note, and recovered upon it. Error is brought by the two endorsers.
The mortgage was foreclosed for nothing but the first instalment. No portion of the one now in suit was due or included in the sale. The result is that after that foreclosure as decided in McCurdy v. Clark 27 Mich. 445, and Miles v. Skinner 42 Mich. 181, the mortgage remained in force as-to this note and the parties who endorsed it had a right, if called on to pay it, to look to the security for indemnity. By her warranty deed Mrs. Clark discharged the mortgage and released the endorsers.
As the subject was fully considered in the cases referred to it is not necessary to enlarge lipón it. The judgment must be reversed as to the plaintiffs in error with costs of both courts."
The other Justices concurred. | [
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Graves, J.
The probate court of Kent county, having under its cognizance the investigation of the accounts of Mr. George H. White as executor of the will of said Alfred D. Rathbone, deceased, made an order to the effect “ that the said executor, George H. White, do submit to an oral examination under oath by counsel for the heirs and legatees of said estate.” Mr. White expressed his willingness to be examined on oath by the court upon any matter relating to said account, but objected to such examination by counsel for the heirs and legatees, and upon the ground that the statute gave no such power: Comp. L., § 4489. The judge of probate overruled the objection and Mr. White appealed to the circuit court, and the order was affirmed.
We are now asked to revise the ruling on certiorari. The court is unable to find any merit in the objection. The right of examination in such cases is one of great importance, and it is not easy to see how it can be made oppressive to any honest trustee. In a great number of cases the ability to trace out transactions and ascertain the truth in fiduciary matters must depend very much at least upon such disclosure or discovery as is freely made on the one hand or coerced on the other, and the reason is very strong against anything likely to fetter the power, where necessary explanation is not spontaneous but requires pressure.
It seems extremely probable that those actually interested would possess great advantage over the judge in the knowledge of facts and incidents essential to a fruitful examination, and that a rule confining it to him would be an embargo upon the object. This could not have been intended, and the right to have the assistance of counsel is justified by the same principles. Whether the questions proceed from the judge or from counsel, the examination, so far as any is allowed, must have the sanction of the court, and no one will contend for the empty form of having the questions suggested to the judge in order that he may literally put them. The statute contemplates nothing of the kind. It virtually assumes that the examination will be conducted in the way usually practiced in the probate court. The common course in some jurisdictions is to proceed on written interrogatories, but no one has ever supposed that they must be actually framed and drawn up by the judge. Yet the objection we are considering would require it. Extended discussion is unnecessary.
The order is affirmed with costs against the plaintiff in ceri/iora/ri.
The other Justices concurred. | [
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Cooley, J.
This in its purpose is a praiseworthy suit, f or it is brought to compel obedience by public officers to their duty under the law. The plaintiffs in the year 1878 were owners as partners of taxable property in the township of Lexington in the county of Sanilac, and the supervisor for the year listed it for taxation, and it was taxed. The defendant was township treasurer, and plaintiffs have paid the tax to him under the compulsion of his process, and now seek to-recover it back as an illegal exaction. The ground of illegality is, that the supervisor, instead of assessing the property of the township at its true cash value, as the law and his official oath required, assessed the real estate at only one-third its cash value, and the personal estate at only one-half its cash value, and that he failed altogether to assess much personal estate that should have been brought into this list. The circuit court refused to permit evidence of these facts to be given, and the suit failed. 0
It was conceded by the plaintiffs that the tax proceedings-for the year were regular upon their face. The supervisor under the sanction of his oath made his certificate, stating in due form that he had assessed all the property at its true cash value, and that the assessment roll contained a true statement of the aggregate valuation of the personal estate of each and every person named in the roll. If he purposely did something different, and disobeyed the law after having taken an official oath faithfully to perform his duty under it, he has not only shown himself regardless of the obligations of an oath, but he has been guilty of a public offense. "Whether he has been guilty of such a wrong to these plaintiffs as gives them a right of action is another question. • The failure to perform a public duty can constitute an individual wrong i only when some person can. show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its non-' performance. And in no ease, we apprehend, could the failure to list property for taxation in accordance with the law constitute a wrong to an individual unless he could show that his individual assessments were thereby made a larger proportion of the aggregate taxable property than they should have been. "We have held that the collection of the tax levy might be restrained in such a case, so far, at least, as it was excessive. Merrill v. Humphrey 24 Mich. 170.
It would be out of place for us to intimate yffiat remedy we might think the taxpayer might have against the supervisor — First, because every case must stand upon its own peculiar facts; second, because a case against the supervisor is not now before us; and third, because the wrong primarily is a public wrong, and ought to be redressed in a public prosecution. It may be said and is said that the public remedy is worthless, because the local communities sympathize with the habitual disobedience of law, and convictions are impossible, and also because no sufficient penalties are prescribed ; but such difficulties, if they exist, cannot give new rights of action. If these ought to be created, the legislature must create them.
If tax proceedings on their face are fatally defective, a suit will lie to recover back money paid under them. Smith v. Nat. Bank 17 Mich. 479; Grand Rapids v: Blakely 40 Mich. 367; Wattles v. Lapeer 40 Mich. 624. But a tax assessment is in the nature of a judgment, and the authorities are numerous that it cannot be assailed for fraud or irregularity in a suit against an officer who holds process fair on its face for enforcing a tax based. upon it. Holden v. Eaton 8 Pick. 436; Lincoln v. Worcester 8 Cush. 55; Cheever v. Merritt 5 Allen 563; Hubbard v. Garfield 102 Mass. 72; Savacool v. Boughton 5 Wend. 171; Nowell v. Tripp 61 Me. 426; Cunningham, v. Mitchell 67 Penn. St. 78; Greene v. Mumford 4 R. I. 313; Glasgow v. Rowse 43 Mo. 479; Erskine v. Hohnbach 14 Wall. 613 ; Bird v. Perkins 33 Mich. 28. There are numerous decisions which extend a like immunity to the assessing officer, and which do not gufíer his assessment, when regular on its face, to be impeached in a suit against him, and there are none, so far as we are aware, which support an action at the suit of an individual except on the ground of fraud or malice.
There is in our minds no room for question that the judgment under review was legally correct, and it must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Russell obtained judgment against Cheney for ten dollars by reason of the latter’s dog injuring and partly devouring certain fresh meat. The amount of damages was agreed upon and Cheney told Russell he would pay for the meat if his dog did the mischief. The judgment was affirmed at the circuit on certiorari, and Cheney brings the case into this court.
A great many rather technical objections were raised before the justice, but upon certiorari none of them should be given any weight unless there is reason to believe they tended to a wrong result. The statute requires judgment to be given at the circuit “ as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the proceedings before the justice which did not affect the merits.”
The objections made before the justice, who tried the case without a jury, were to • the introduction of testimony of the vicious character and roving propensities of the dog. Without going into the details, the effect of these rulings rather indicates that the justice required some conditions of liability beyond those properly to be demanded. But he acted judiciously in receiving all this testimony as having some bearing on the probabilities, and we are not prepared to say it had not. Upon all of the testimony he was certainly justified in holding there was enough to make out a case, and as he came to that conclusion, and as we cannot see any other conclusion would have been made more reasonable by rejecting the evidence, we think the circuit court was right in affirming.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
The information is clearly defective in this case. It does not allege a statutory burglary, as the intention with which the breaking and entering was done was not charged. It also fails to charge a larceny in not alleging ownership of the property taken.
The judgment must be reversed and prisoner discharged.
The other Justices concurred. | [
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Campbell, J.
This case which was before us at a former term (Le Baron v. Joslin 41 Mich. 313) now comes up on error after a second trial in which defendant prevailed. As the chief facts-appear very much as they did before, a brief reference will be all that is needed.
Joslin sued Le Baron for driving Ms wagon against a wheel of plaintiff’s buggy and breaMng it. Joslin had hitched his team to a post by the side of a travelled highway, in such a manner that the buggy stood out diagonally in the street between sixteen and seventeen feet. The finding of the jury shows that this brought the wheels so near the track which was actually travelled that when Le Baron’s wagon was passing along the way Joslin’s horses backed the buggy about a foot so as to produce the collision. Joslin claimed Le Baron should have left the track which was actually taken, and turned out. Le Baron claimed that the occurrence was either accidental or owing in part to Joslin’s own carelessness. He also claimed that there was no negligence at all on his part. The jury having found the plaintiff had no cause of action, must have done so either because the injury was accidental, or due in part at least to Joslin’s carelessness. Joslin insists the charges were misleading.
The court expressly charged, at his request, that plaintiff in hitching his team as he did, was not guilty of negligence if he did what a man of usual and ordinary prudence should do. It was also charged that in passing a team and carriage hitched by the road side with no one present or in charge, as much diligence was required as in passing a team and carriage in charge of a driver. The case was considerably narrowed by these charges and by the finding that had it not been for the backing of Joslin’s team, defendant who was driving in the beaten track would not have hit the wheel.
The court could not be in^ error in refusing to charge on specific points which were practically covered by other charges, any more than if they were wrong or ambiguous. It was not necessary to lay down the abstract rule that the question of negligence was for the jury when the whole charge was framed on that basis. As the jury found the defendant was traveling in the beaten track there could not be a finding that he was on the wrong side, and he could not be presumptively in fault for not turning out of it, but negligence in not doing so must be proved. There was no error in refusing to charge otherwise.
But we think that when it is found that Joslin left his horses so hitched that so slight a backing as they made would necessarily bring the wheel into the travelled track, that was such negligence in itself as would preclude him from complaint for such a mishap. Nothing else could be expected without very considerable care and forethought on the part of passers-by, and as even their negligence would create no liability if he was negligent, the cause of action cannot be made out under such a finding.
We think there was no error, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
The bill in this case was originally filed by the guardian of Robert Graham, now deceased, who had been declared incompetent by the probate court of Jackson county, and after his death, was revived in favor of heirs and representatives, against John Vanderlyn to compel an accounting of fiduciary matters, and to avoid a deed alleged to have been obtained by fraud from Graham. The court below decreed an accounting, but refused to set aside the deed, and complainants appeal from this refusal. As this narrows the issues, a brief statement of the controversy will be enough to explain the merits.
Graham was in 1859 and previously engaged in the boot and shoe business at Jackson and had been reasonably prosperous. He had in his employ the defendant, Vanderlyn. On the 12th of July, 1858, Graham executed to Vanderlyn a general power of attorney, authorizing the latter to carry on this business in all its departments, to sell and dispose of any of his real estate, to settle his debts and collect anything due to him. The authority was very broad and general. The bill states this was given in view of a visit to California. The answer states that Graham had no such design until. 1859, when he did go there and remained some two years. The real reason is not made clear, and the transaction was certainly a peculiar one. Yanderlyn claims, and it is probable, that he did not assume control until 1859, Graham continuing his own business in the meantime. During his absence Yanderlyn closed up the business entirely and obtained execution titles to a part of the real estate, and collected considerable money which he claims to have paid out for debts and expenses. On his return from California, or not long after, Graham volunteered in the army. He came home on a short furlough in 1861, and immediately before his return to the front, he made a deed to Yanderlyn which is the one in controversy. Yanderlyn claims it was given to him in payment of an amount of $3500, which, he says, was less than the balance then due him for advances. The bill claims that the deed was conveyed at Yanderlyn’s urgency on a representation that it would look better under the circumstances of the parties to have it appear that the land had been sold to him, and that he suggested $3500 as the value on which it would pay suitable rent.
After Graham’s return from the war, it is claimed that he had become broken in mind and body, as it is urged he had been more or less for several years. It is insisted that no accounts could be obtained from Yanderlyn. In 1868 a suit was brought at common law to recover such balance as was due, and to recover also the value of the land thus conveyed. This suit remained undisposed of until after the probate court put Graham under guardianship, when it was determined very wisely that a suit in equity was a more appropriate remedy.
The circuit court having decreed an accounting, and both parties acquiescing in it, we have therefore nothing to do with this except as it may have a bearing on the remainder of the issues.
"We are disposed to think that Graham was not until a comparatively recent period entirely incompetent. But the whole train of circumstances, beginning with the power of attorney and including his career thereafter would seem, in our judgment, to make it entirely clear that he was in a position which rendered him a very easy subject for imposition', and which made it incumbent on his fiduciary agent to be very careful in his dealings with him. From so much as-appears in the record we have no doubt that, whether fraudulently intended or not, the taking of the deed was a transaction of so peculiar a character that it devolved on Yanderlyn to assume the burden of proving the most implicit good faith, and a perfect understanding and agreement on the part of Graham. Yanderlyn’s testimony is ,the only proof we have on the subject, and assuming it to be admissible it is not, in view of the surroundings, at all satisfactory. It does not indicate such means of knowledge or such deliberation on Graham’s part as would maintain the deed against him if he at an early day repudiated it. And the large increase of rent on a small expenditure of money is very strong evidence that Yanderlyn was endeavoring to make a profit out of his-position at Graham’s expense.
We think, however, that there is now some difficulty in setting aside the deed, for two or three reasons. In the view we take of Graham’s condition we think he should have taken steps to repudiate it within some reasonable time. The suit at law which he commenced affirmed the sale, but treated it as one where no value had been fixed. And until the account is finally taken it would be premature to determine what allowance shall be made, if any, in case of rescission. There is also a strong reason beyond this for following the general rule requiring diligence. Graham is dead and Yanderlyn cannot, as the heirs cannot, have full means of showing just what the facts were. Under the power of attorney Yanderlyn could have made a valid sale, and Graham, by executing this deed merely changed the purchaser. It seems to us that any decree rescinding the deed would be made in more uncer tainty than is proper, and that the fault is somewhat due to Graham in not acting promptly.
While, therefore, we do not feel justified in rescinding the deed, we do not think that under the rules of evidence it can be held established as to its consideration. Should it turn out on the accounting that Yanderlyn was not in advance to the extent he claims, the case would be one of actual and not merely constructive fraud. But under any circumstances he could not equitably hold the land at any less price than its then full value, unless the bargain was made with full information and deliberation. This cannot now be fully proved, but in our opinion the testimony all considered distinctly disproves it. Graham’s estate is entitled to have that price allowed. As this will enter into the accounting it would be premature for us to fix it.
And, as it must be until accounting uncertain how much of the price, if any, is to be regarded as paid, we think that the property must be held subject to a lien for any balance which may be found due. We cannot take it out of the fiduciary arrangements, and, inasmuch as the land has not been disposed of, so far as appears, Yanderlyn must be restrained from disposing’ of it until the final decree.
The decree must be modified so far as to require the land to be brought into the accounting at its actual value on the da#y it was deeded, and holding the property subject to any balance that may be found due on its price, and restraining any disposition of it until final decree.
Costs to be given to complainants in this court.
The other Justices concurred. | [
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Campbell, J.
Cooper brings error on a judgment upon an award, rendered by arbitrators under a statutory submission, concerning a controversy irpon a lease. Several errors are assigned. The a\vard was signed by two out of three arbitrators named. The objections made are that there is nothing to show that the arbitrators were sworn, or appointed a time and place for hearing, and that they did not sign officially, and did not all sign. Also that the award is uncertain, and extends beyond the submission, and does not disclose how much was due and unpaid on the lease. Also that Cooper could not lawfully make a submission; that the law knows no such person as A. Andrews, and that the arbitrators could not decide that the lessees should pay no more rent.
It does not appear from the record just what the lease was, and we cannot assume that it was in any such shape as to create any difficulty. It is referred to in the submission only by its date and description of lands. All that we can infer is that a controversy of some kind, which is not described, had arisen under it and that the parties were willing to settle it. And we cannot assume that the award, which required Cooper to pay damages to the amount of ninety dollars, and released the lessees from further rent, was in any way improper, or that any other award should have been made.
The objections taken are very technical, and in our opinion entirely unauthorized; and if there Was any reason why this award should not have been made, the plaintiff has mistaken his remedy. The statute has expressly declared what the judgment recoil shall contain. It does not require anything more than a statement of the submission, hearing and award. Comp. L., § 6903. And the concurrence of a majority makes a good aw'ard if the case was properly heard. § 6895.
The statute provides that a party complaining of an award may apply to the court to vacate it. The grounds on which complaint may be made are all set forth. § 6896. This application must be made at the next term, and the court may vacate it for cause, and may order a rehearing if that is proper, or may modify and correct the award in certain cases. §§ 6899, 6900.
It was never designed that these amicable proceedings should fail for technicalities, or that the record should have any inferences raised against its correctness unless it shows on its face some palpable error. If any wrong has been done it must be affirmatively shown, and where mistakes have occurred, the submission may still be saved and a new hearing had if possible. The law favors and maintains proceedings of this sort as far as possible. Beam v. Macomber 33 Mich. 127; City of Detroit v. Jackson 1 Doug. (Mich.) 106 ; Chicago & Mich. Lake Shore R. R. v. Hughes 28 Mich. 186.
Error cannot be sustained on the record alone, if it shows what the statute requires. Here the submission was in due form, and the award was one which could have been lawfully made. This being so, any other objections should have been made by the proper application to the circuit court, where complete justice was possible.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
Plaintiff, Rudolph A. Wartella, appeals the May 28, 1986, order of the Macomb Circuit Court dismissing plaintiffs complaint for declaratory judgment and rejecting plaintiffs challenge to Chapter III, Section 24 of the charter of defendant City of East Detroit. We affirm.
Plaintiff, a resident of the City of East Detroit, has been a licensed Michigan attorney since December 7, 1982. His recent application for the position of the city’s director of law was rejected by the city manager pursuant to Chapter III, Section 24 of the city charter, which provides in pertinent part:
The Director of Law shall be an attorney at law who shall have practiced in the State of Michigan for at least five years.
On February 24, 1986, plaintiff filed a complaint for declaratory judgment, alleging that the charter provision is at variance with state law. He further claimed that the charter provision is invalid because state law preempts municipal regulation of the practice of law. In his "memorandum brief’ filed in the circuit court, he additionally alleged that the charter provision violates the Equal Pro tection Clause of the United States Constitution. US Const, Am XIV.
The circuit court found that the charter provision does not regulate the practice of law within the City of East Detroit and that, under the rational basis test, the provision does not violate the Equal Protection Clause.
On appeal, plaintiff urges this Court to find that the charter provision is invalid because "state law and the Michigan Supreme Court provide the qualifications of those that may practice law and hold public offices as attorneys in this state.” This argument is totally lacking in merit. Plaintiff cites no authority which supports his claim that statutory qualifications for judges and county prosecutors should, "by analogy,” limit municipal control over the qualifications of local, appointive offices. And, as found by the circuit court:
The Charter provision in no way attempts to regulate the practice of law within the City of East Detroit. The Charter provision does provide minimum standards for the attorney the city chooses to hire and employ in a consensual attorney-client relationship. Plaintiff has not cited a state statute setting forth qualifications for heads of municipal law departments. Consequently, the Court finds that the charter provision, which was adopted pursuant to the Home Rule Cities Act, MCL 117.1 et seq. [MSA 5.2071 et seq.], does not conflict with or contravene the provisions of any general law of this state.
Plaintiff also urges this Court to find that the charter provision fails the rational basis test, the standard for traditional equal protection analysis.
The rational basis test was described by this Court in In re Contempt of Stone, 154 Mich App 121, 128-129; 397 NW2d 244 (1986), lv den 426 Mich 854 (1986):
The statute needs only a rational basis to be valid, and the burden of showing that the statute does not rest on a rational basis is on the litigant attacking the enactment, Anderson [v Detroit, 54 Mich App 496; 221 NW2d 168 (1974)], supra, p 499. The statute must be upheld unless "it is so lacking in an adequate or reasonable basis as to preclude an assumption that legislative discretion was exercised,” Struble v DAIIE, 86 Mich App 245, 253; 272 NW2d 617 (1978), lv den 406 Mich 885 (1979). The test of reasonableness is satisfied where any set of facts may reasonably be conceived to justify the legislative discrimination, Morgan v Win Schuler’s Restaurant, 64 Mich App 37, 42; 234 NW2d 885 (1975).
See also Naudzius v Lahr, 253 Mich 216, 222-223; 234 NW 581 (1931).
In this case, the circuit court responded as follows to plaintiffs equal protection challenge:
Defendant argues that the objective of the charter provision is to assure experienced and competent legal counsel for the City. The Court has reviewed the charter provision in its entirety and notes that the Director of Law is responsible for handling myriad legal issues ranging from prosecuting ordinance violations to preparation of contracts and bonds.
The Court finds that Chapter III, Section 24 of the Charter of . the City of East Detroit creates a classification that is reasonably relevant to the accomplishment of a valid City purpose. The charter provision does not violate the Equal Protection Clause of the United States Constitution.
We agree.
Affirmed.
1 The provision continues:
He shall be the chief legal advisor of and attorney for the City and all departments and offices thereof in matters relating to their official powers and duties. It shall be his duty, either personally or by such assistants as he may designate, to perform all services incident to the Department of Law; to attend all meetings of the Council; to give advice in writing, when so requested, to the Council, the City Manager or the director of any department; to prosecute or defend, as the case may be, all suits or cases to which the City may be a party; to prosecute for all offenses against the ordinances of the City and for such offenses against the laws of the State as may be required of him by law; to prepare all contracts, bonds and other instruments in writing in which the City is concerned, and to endorse on each his approval of the form and correctness thereof; and to perform such other duties of a legal nature as the Council may by ordinance require. In addition to the duties imposed upon the Director of Law by this Charter or required of him by ordinance or resolution of the Council, he shall perform any duties imposed upon the chief legal officers of municipalities by law.
Section 25 provides:
The Council, City Manager, the Director of any department or any officer or Board, not included in any dpeartment, may require the opinion of the City Attorney upon any question involving their respective powers and duties.
E.g., MCL 168.391; MSA 6.1391 (Justice of the Supreme Court); MCL 168.409; MSA 6.1409 (judge of the Court of Appeals); MCL 168.411; MSA 6.1411 (judge of the circuit court); MCL 168.426b; MSA 6.1426(2) (judge of a municipal court); MCL 168.431; MSA 6.1431 (judge of probate), MCL 168.467; MSA 6.1467 (judge of the district court).
MCL 168.191; MSA 6.1191.
Plaintiff does not expressly argue state preemption on appeal. In any event, we find no state statutory scheme which preempts the City of East Detroit’s requirement that its director of law be an attorney who has practiced in Michigan for at least five years. See, generally, People v Llewellyn, 401 Mich 314, 322-331; 257 NW3d 902 (1977), reh den 402 Mich 954 (1977), cert den 435 US 1008; 98 S Ct 1879; 56 L Ed 2d 390 (1978).
5 The City of East Detroit is a home rule city. Under the home rule act, a city’s ordinances are "subject to the constitution and general laws of this state.” MCL 117.4j(3); MSA 5.2083(3). See Const 1963, art 7, § 22, and MCL 117.36; MSA 5.2116 ("No provision of any city charter shall conflict with or contravene the provisions of any general law of the state.”)
If a challenged law creates a suspect classification, or hinders or penalizes the exercise of a fundamental constitutional right, it is subject to strict scrutiny and must be shown to be necessary to promote a compelling state interest. See In re Contempt of Stone, 154 Mich App 121, 127-128; 397 NW2d 244 (1986), lv den 426 Mich 854 (1986). Plaintiff does not argue that the charter provision creates a suspect classification or that its enforcement affects the exercise of a fundamental constitutional right. We therefore apply the rational basis test upon which plaintiff relies. | [
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Per Curiam.
Plaintiff appeals as of right from an opinion and order granting defendants’ amended motion for summary disposition and dismissing plaintiff’s action pursuant to MCR 2.116(0(10).
This cause of action arose from the drowning death of Larry Alan Hill, the husband of plaintiff, Rosemary Hill, on August 1, 1982. On that date, decedent and a group of friends, including Cathy Saylor, went to the Clarkston Lakes Trailer Park, where Saylor lived, to play tennis and swim in the pool. Decedent took his two sons along. After playing tennis awhile, the group went to the pool but were told they could not swim in the pool because one of decedent’s sons was wearing cutoffs instead of a swimsuit. Saylor then suggested that the group go swimming in one of two ponds which were located behind the trailer park. Saylor had swum in one of the ponds before.
The ponds were approximately an eighth of a mile behind Saylor’s trailer. The ponds were on a 140-acre tract of land owned by defendants James L. Guy and James L. Mann. Guy and Mann also owned Sashabaw Meadows Trailer Park, which was near Clarkston Lake Trailer Park. The ponds were not on the land which contained Sashabaw Meadows Trailer Park, however. The land on which the ponds were located was purchased by Guy and Mann in 1976 and 1977, while the land on which Sashabaw Meadows Trailer Park was located was purchased by them in 1978 or 1979. Guy planned to develop the 140-acre tract on which the ponds stood, but the tract was vacant when the drowning occurred.
The group entered the pond. The group did not ask permission of anyone to enter the pond and did not take any flotation devices. Decedent wore sweat pants into the pond. There were no signs prohibiting swimming, and the area was not fenced. After they had been swimming awhile, Saylor went to the middle of the pond and called for decedent to join her. Decedent jumped in and started swimming toward her. After a couple of seconds, Saylor heard decedent cough, and turned and saw him coughing and sputtering "with his shoulders up.” Decedent told Saylor that he was choking on water, and he then began to gasp for breath. Decedent went under before anyone in the group could reach him. The police recovered decedent’s body several hours later.
On May 8, 1984, plaintiff filed a wrongful death complaint against defendants. The first count alleged general negligence and premises liability, the second count alleged a nuisance per se, and the third count alleged a nuisance in fact. On June 4, 1985, defendants filed a motion for summary disposition pursuant to MCR 2.116(0(10), formerly GCR 1963, 117.2(3), asserting that there was no genuine issue of material fact and that the recreational use statute, MCL 300.201; MSA 13.1485, barred plaintiffs action. The motion was adjourned because plaintiff claimed that discovery was not complete since the individual defendants had not been deposed. Defendants then filed an amended motion for summary disposition on February 11, 1986, after defendants were deposed. On March 7, 1986, plaintiff filed an answer to the amended motion. In the answer, plaintiff admitted that she had not "pled any operative facts that can be considered either gross negligence or evidence of gross negligence.”
On May 6, 1986, the court granted defendants’ motion, holding that there was no dispute as to any material fact and plaintiff’s action was barred by the recreational use statute.
A motion brought under MCR 2.116(0(10) tests whether there is factual support for plaintiff’s claim. A court in deciding such a motion must consider the pleadings, affidavits, depositions, admissions, and documentary evidence available to it and give the nonmoving party the benefit of every reasonable doubt. The motion must not be granted unless the court is satisfied that it is impossible to support the claim at trial because of some deficiency which cannot be overcome. Dzierwa v Michigan Oil Co, 152 Mich App 281, 284-85; 393 NW2d 610 (1986). The real issue in this case is whether there is a genuine issue of material fact which would preclude application of the recreational use statute, MCL 300.201; MSA 13.1485, and its bar to plaintiffs action. The statute states:
No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sight-seeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.
Plaintiffs decedent and his companions did not pay a consideration to defendants to swim in the pond. Thus, plaintiff can recover only if defendants acted with gross negligence or wilful, wanton misconduct. Gross negligence occurs when a defendant, who knows or ought to know of the precedent-negligence of the plaintiff, by his subsequent negligence, injures the plaintiff. Gibbard v Cursan, 225 Mich 311, 319; 196 NW 398 (1923); Burnett v City of Adrian, 414 Mich 448, 454; 326 NW2d 810 (1982). In the instant case, plaintiff admitted in her answer to defendants’ amended motion for summary disposition that she had not "pled any operative facts that can be considered either gross negligence or evidence of gross negligence on the part of defendants.” The trial court acknowledged this admission in its opinion and declined to rule on whether there was a factual issue of gross negligence. Plaintiff now discusses the issue, alleging that decedent had been in the pond a sufficient length of time for defendants to arrive and supervise decedent or warn him of danger. As a general rule, questions not raised or ruled on by the lower court cannot be considered by this Court. Bajis v City of Dearborn, 151 Mich App 533, 536; 391 NW2d 401 (1986), lv den 426 Mich 874 (1986). Even were we to find that plaintiff is not precluded from raising the issue of gross negligence, we would still conclude that there is no genuine issue of material fact that defendants did not act with gross negligence. Defendants did nothing after decedent began swimming. In fact, it is undisputed that defendants were in Florida at the time. Thus, they did not commit negligent acts after decedent’s act.
The other exception to the recreational use statute is wilful and wanton misconduct. The requirements of wilful and wanton misconduct are: (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Gibbard, supra, p 322; Burnett, supra, p 455, n 2. Wilful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Burnett, supra, p 455. In the instant case, even if requirements (1) and (2) were met, requirement (3) was not. It would not be apparent to the ordinary mind that the result of not fencing off a pond or posting warning signs would likely prove disastrous to another. There is no requirement in the law that the owner of property on which sits a pond fence it off, post warning signs, or equip it with safety devices. Graham v Gratiot Co, 126 Mich App 385; 337 NW2d 73 (1983), lv den 418 Mich 898 (1983).
Finally plaintiff claims that even if the recreational use statute applies, it should not bar her counts of nuisance per se and nuisance in fact. We disagree. In Burnett, supra, the Court held that a nuisance action could not be recognized concurrently with an action covered by the recreational use statute. 414 Mich 454, n 1, 481. This Court repeated this rule in Graham. 126 Mich App 391.
Affirmed. | [
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M. J. Shamo, J.
Defendant was bound over to circuit court on one count of possession of cocaine, MCL 333.7403(1) and (2)(a)(iv); MSA 14.15(7403X1) and (2)(a)(iv), and on one count of carrying a concealed weapon, MCL 750.227; MSA 28.424. After conducting an evidentiary hearing on defendant’s motion to suppress evidence, the circuit court ordered that the charge of possession of cocaine be dismissed. The prosecutor appeals as of right. The charged offense of carrying a concealed weapon is not at issue in this appeal.
Defendant’s vehicle was stopped by the police after it was observed driving through a stop sign. While writing a traffic ticket, the police officer ran a routine check on defendant’s driving license. The check revealed that the driver’s license was suspended and that defendant also had outstanding two unconfirmed traffic warrants. Defendant was arrested, searched for weapons, and taken to the police station. The officer did not advise defendant of his right to post bail.
When defendant arrived at the station, he was advised by a police officer responsible for booking prisoners of his right to post bail. He was further advised that he would need $170 in cash for this purpose—$100 for the suspended license charge and $70 for the two traffic warrants. When defendant indicated that he did not have enough money to post bail, he was incarcerated. An inventory search of defendant’s person was conducted after it was determined that incarceration would be necessary, and cocaine was found in the course of that search. The inventory search also indicated that defendant’s cash on hand amounted to $2.68.
The circuit court decided that the evidence of the cocaine must be suppressed pursuant to the exclusionary rule of People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), for violations of the interim bail statute, MCL 780.581; MSA 28.872(1). The court found that defendant should have been notified by the police of his right to post bail at the time that he was arrested on the street.
This Court will reverse the ruling of the circuit court to suppress evidence only if the ruling was clearly erroneous. A ruling is clearly erroneous when the appellate court is firmly convinced that a mistake was committed below. People v Hardi-man, 151 Mich App 115, 118; 390 NW2d 210 (1986), further consideration denied 426 Mich 1201 (1986).
In Dixon, supra, pp 705-706 our Supreme Court held that violations of the interim bail statute are remedied by the suppression of evidence:
Any evidence gained in derogation of this statutory right is to be suppressed; no other remedy is as likely to assure its full enforcement and the protection of the citizenry at large from unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense.
The interim bail statute, MCL 780.581; MSA 28.872(1), provides only that the police take the person arrested to a magistrate "without unnecessary delay” and that the person arrested has the right to post bond if the magistrate is not immediately available or if an immediate trial cannot be conducted. In Dixon, supra, p 703, the Court expanded the scope of the police duties pursuant to the statute by requiring the arresting officer to inform the person arrested of his right to post bond.
We conclude that the Dixon exclusionary rule does not require suppression of the evidence of cocaine in the instant case. Contrary to the ruling of the circuit court, the interim bail statute does not impede the police in conducting an otherwise permissible search incident to an arrest. People v Chapman, 425 Mich 245; 387 NW2d 835 (1986). "[T]he determinative question is whether the statute has been violated.” Id., 260. See also, People v Combs, 160 Mich App 666; 408 NW2d 420 (1987). Although better police practice would perhaps dictate that the defendant be advised of his rights pursuant to the interim bail statute contemporaneous with his arrest, the failure of the police in the instant case to give this advice did not result in the discovery of any inculpatory evidence. Cf., Dixon, supra, p 705; People v Siegel, 95 Mich App 594, 605-607; 291 NW2d 134 (1980), lv den 414 Mich 900 (1982). It was only after defendant was advised of his interim bail rights that the evidence of the cocaine came to light. By that time, the police had achieved compliance with the policy and letter of the statute. The circuit court’s belief that suppression was required because of the failure of the arresting officer to give the advice of the right to post bail "on the street” without any-showing of a causal nexus between that failure and the subsequent discovery of evidence was clearly erroneous.
The circuit court relied upon People v Garcia, 81 Mich App 260; 265 NW2d 115 (1978), and Siegel, supra, to support its conclusion that the evidence was illegally obtained. To the extent that the viability of those holdings survive the Supreme Court’s recent opinion in Chapman, supra, we do not read either Garcia or Siegel to require suppression of evidence seized during an in-custody inventory search after the defendant has been advised of his right to bail.
We conclude that the circuit court’s decision to suppress the evidence and to dismiss the charge against defendant for possession of cocaine was clearly erroneous. Accordingly, we reverse that decision and remand this cause for reinstatement of the cocaine possession charge.
Reversed and remanded.
Although defendant testified that his cousin was following him in another vehicle at the time of the arrest and that the cousin could have posted bail, the circuit court made no finding accepting that testimony as true. | [
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Champlin, J.
In July, 1883, the relator commenced proceedings in the probate court of Houghton county for the condemnation of certain lands for railroad purposes. Commissioners were duly appointed and qualified under the law, and proceeded to the condemnation of a parcel of land designated in the petition as parcel number 4, belonging to Johnson Vivian and Stephen L. Prince. The commissioners made their report on the 15th day of August; 1883, and filed it in the probate court. On the 29th day of August, petitioners filed a motion with the probate court to set aside the finding and report of the commissioners upon the following grounds:
1. Because the damages and compensation found by said commission are excessive and exorbitant.
2. Because said commission included in such damage and compensation large sums of money, to-wit, the sum of nine hundred and ninety-nine dollars for loss of profits in the fuse business during the interruption of the same, and the sum of five hundred and twenty dollars for loss'.estimated to accrue to Stephen L. Prince, one of the owners of said property, and his family, in wages while the factory should be stopped, and the sum of three hundred and thirty-seven dollars or thereabouts, for loss of business to arise from the removal of the fuse factory to another site, without any evidence whatever on which to found the same.
3. Because said commission included in said finding the sum of three hundred dollars as the loss of Stephen L. Prince, one of the owners of said property, in removing therefrom, and the cost of the same.
4. Because said commission grossly overestimated the value of said land and the structures thereon and the damage done thereto.
5. Because said commissioners each separately arrived at what the total award ought to be, and agreed to add together the said several sums so arrived at and to divide the sum by three, and make the quotient their award, and did so.
6. Because said commissioners allowed as damages to and compensation for said real estate a larger sum than the entire value of the whole of said real estate.
This motion is founded upon the affidavits of Matthew Yan Orden, Bichard M. Hoar, Philip Scheuermann and Thomas W. Edwards, filed herewith, and upon other affidavits hereafter to be filed, and upon the report of said commissioners on file herein, and upon the record of said proceedings, and upon the testimony of such affidavits and such other testimony as petitioner may produce on the day of hearing.
Notice of the hearing of this motion was given for September 3d, 18S3. On that day the petitioner filed with the probate court its objections to the report as follows :
1. That the damages and compensation found by said commission are excessive and exorbitant.
2. That said commission included in said damages and compensation large sums of money, to-wit, the sum of nine hundred and ninety-nine dollars for loss of profits in the fuse business during the interruption of the same, and the sum of five hundred and twenty dollars for loss estimated to accrue to Stephen L. Prince, one of the owners of said property, and his family, in wages while the factory should be stopped, and the sum of three hundred and thirty-seven dollars, or thereabouts, for loss of business to arise from the removal of the fuse factory to another site, without any evidence whatever on which to found the same.
3. That said commission included in said finding the sum of three hundred dollars as the loss of Stephen L. Prince, one of the owners of said property, in removing therefrom, and the cost of the same.
4. That said commission grossly overestimated the value of said land and the structures thereon, and the damage done thereto.
6. That said commissioners each separately arrived at what the total award ought to be, and agreed to add together the said several sums so arrived at, and to divide the sum by three and' make the quotient their award, and did so.
6. That said commissioners allowed-as damages to and compensation for said real estate a larger sum than the entire value of the whole of said real estate.
7. That the garden, trees and shrubs valued by said commissioners at eight hundred dollars are grossly overvalued, and are not worth to exceed two hundred dollars.
8. That Josiah Pauli, one of said commissioners, after being appointed a commissioner, and before the"finding of damages was made, and while charged with his duty as such commissioner, received privately from said Vivian, or from said Prince, or from some one in their behalf, a written paper containing a list of the structures and other property upon .said land, together with valuations of the same and of the land, and of the damages assumed to be done thereto by the railroad, amounting to $11,000, or thereabouts, and was influenced by the same in his deliberations as a commissioner.
9. That the ‘garden’ mentioned in M. Van Orden’s affidavit in support of the motion heretofore made does not exceed 30x100 feet in size, nor three hundred dollars in value, and that the strip of land sought to be taken crosses the same.”
—and offered to establish the above causes by the oral testimony of witnesses then in the court-room and by affidavits.
This was met by a counter-motion from the attorneys of Messrs. Vivian and Prince to strike the' affidavits from the files, and to refuse to hear testimony in opposition to the' commissioners’ report, on the ground that such affidavits and oral testimony of witnesses were incompetent and inadmissible on the hearing of a motion to set aside the report. The probate court denied petitioner’s motion, and granted that of Messrs. Vivian and Prince; and before any motion was made for a confirmation of the report, the petitioners applied to this Court for an order on the probate judge to show cause why he should not receive and consider, upon the motion to set aside the report, the affidavits and oral testimony offered, and why (should said report be confirmed) he should not set aside such confirmation for the purpose of such hearing. Such was the situation of the proceedings when the petition was presented to this Court, and the order to show cause was granted, and the return to the order shows that the facts up to this point are correctly set forth in the petition. The motion made by the petitioners to set aside the report was one proper to be made, and, if substantiated, would have furnished sufficient grounds for setting aside the report.
The probate court has authority to set aside the report of commissioners for good cause shown. If the amount awarded is unreasonable, and indicates that it was the result of prejudice or partiality, or that the commissioners must have acted upon a wrong basis of estimating the damages, it is a good cause for setting aside the report. Chapman v. Groves 8 Blackf. 308. Evidence as to the value of the property condemned, and the resulting damages, while admissible, is not controlling; they are the opinions of witnesses simply, and should not ordinarily have greater weight than the official report of the commissioners who have considered all the evidence. Eastern R. R. Co. v. Concord &c. R. R. Co. 47 N. H. 108. Numerous courts have held that the reports of commissioners may be impeached for partiality, bias, prejudice or inattention or unfaithfulness in the discharge of their trust, or for error of such extraordinary character or grossness as should furnish a just inference of the existence of such influences. Mills on Em. Domain § 234, and cases cited in note 7. Commissioners exercise important functions, and pass upon valuable rights, and should be free from prejudice or undue influence.
In Peavey v. Wolf borough 37 N. H. 286, it was held that they should not converse or discuss with one party in the absence of the other upon the subject under consideration, and in another case the furnishing of liquor by a petitioner for a highway to the commissioners, while engaged in their duties, was held an abuse for which the court would ordinarily set aside a report in favor of the petitioner, without inquiring how far the commissioners were affected by it. Newport Highway 48 N. H. 433.
In this case an affidavit of one of the commissioners was filed in support of the motion to set aside the report. This was proper. The commissioners are not like a common-law jury, and their own affidavits may be used to impeach their finding, or show that they proceeded upon a wrong principle in the ascertainment of damages. The rule on which they act is a fact, and may be shown as any other fact. Canal Bank v. Albany 9 Wend. 244; New Jersey R. & T. Co. v. Swydam 17 N. J. Law 25.
The fifth ground for setting aside the report was supported by the affidavit of one of the commissioners. All parties are entitled to the intelligent judgment of the commissioners upon the appraisement of damages, and any agreement in advance which shall leave the amount as the result of chance ■cannot be upheld. In the case of Kansas City &c. R. R. Co. v. Campbell 62 Mo. 585, the three commissioners put down the amounts respectively determined on by them, and divided the sum by three, and returned the quotient as the result, and the finding was set aside by the Supreme Court. See also to the same effect, Donner v. Palmer 23 Cal. 40; Ruble v. McDonald 7 Iowa, 90; Birchard v. Booth 4 Wis. 67; Denton v. Lewis 15 Iowa 301; St. Martin v. Desnoyer 1 Minn. 156; Forbes v. Howard 4 R. I. 364.
There is no doubt, having regard to the constitution of different individuals’ minds, that an agreement upon the •amount is nearly always the result of compromise of opinions ; and where there is no previous agreement to be bound by the result, there can be no objection to a subsequent adoption of such amount, if in view of all the evidence the commissioners become convinced that the amount thus ■determined is just and right. An agreement to.be bound in advance is not the result of compromise or conviction, and affords designing persons on the commission the opportunity to mark an extravagantly high or low amount, so that the average will not yield a just average of the unbiased judgment of the persons composing the commission. In this case the commissioners had each announced how much the award ought to be as follows: $7333; $8000 and :$7777; they then agreed to add these sums together and divide by three and make the quotient their award. I can see nothing objectionable, in this. It was a fair way of reaching a compromise, agreed upon when each knew what the result would be. It would have been quite different if they had not known the several amounts in advance.
With reference to tire practice on a motion of this kind, whether the facts shall be brought to the knowledge of the court by affidavits or by oral testimony, the method of proceeding must be left very much to the discretion of the court, who is to hear and decide the motion. Ordinarily the facts are brought before the court by affidavits, and these are proper to be met with counter-affidavits, but the court has the power, if it choose to exercise it, to require the witnesses to be produced before it and to submit to the test of cross-examination. If the record showed that the case was in the same situation as when this Court allowed the order to show cause, I should have no hesitation in saying that a peremptory mandamus should issue. But it appears from the record before us that several important steps have been taken by the petitioners since that time, which I shall proceed to consider.
On the 1st day of October, 1883, at a regular session of the probate court, the attorney for the petitioners, together with the attorneys of Messrs. Vivian and Prince, appeared in court, and the attorney for the petitioner then moved the court to confirm the report of the commissioners, protesting, nevertheless, that their award was unjust, exorbitant, unwarranted and 'illegal, and praying that his motion might not in anywise prejudice the petitioner’s right to question and attack said report on appeal, or by other proper proceeding, and not waiving or in anywise relinquishing or impairing the motion theretofore made for an order to the court to show cause why said report should not be set aside; and thereupon the probate court ordered, adjudged and decreed that the report of the commissioners should be in all things ratified and confirmed. The attorney for petitioners made and presented to the probate court an order of confirmation, which the judge of probate signed and delivered to him a certified copy thereof, which the attorney for petitioners caused to be recorded in the office of the register of deeds for said county, in liber 21 of deeds, at page 496, on the 1st day of October, 1883; and on the 2d day of October the petitioners paid the amount of the award to the attor ney for Messrs. Yivian and Prince, under protest, and stated that the petitioner reserved all its rights to recover the same or any part of the same back, should said award be set aside,, diminished or quashed by proceedings had theretofore upon-the same, and all other rights that it had or may have for the recovery of said money or any part thereof, and that the money was paid then because the railroad company needed the land for the purpose of building its track thereon at. once, and further delay in acquiring that right would result' in great loss to it and inconvenience to the public. The-petitioner’s attorney took a receipt for the money, and filed it. in the probate court, and went into the immediate possession of the land.
On the 20th day of October, 1883, the petitioners appealed from the appraisal and report of the commissioners to the Supreme Court for the same reasons stated in support of the motion to set aside the report, and the following additional reasons:
10. That said report does not state what the damages are, nor for what they are given, nor in any manner specify the same.
11. That said report does not distinguish and give in separate amounts the damages found for the value of the land taken, and for resulting damages.
12. That said Johnson Yivian and Stephen L. Prince are and were at the time of filing said petitions married men, and that their wives were residents with them of Houghton county, and that petitioner inadvertently failed to make said wives parties to the proceedings, and to serve them with a copy of the petition and notice of the hearing thereof; and .that, although said petitioner showed said facts by affidavit, said probate judge refused, -on request, to set aside said report and give petitioners leave to acquire said lands as if.' no appraisal had been made.
13. That the probate judge refused to receive the testimony of witnesses offered in open court, and the affidavits-filed in court, to substantiate the facts set forth in numbers-1 to 9 inclusive, hereinabove, and to substantiate the facts, in each of them severally.
14. That said probate judge ought to have received said: affidavits and said oral testimony, offered in open court in support’ of said facts in numbers 1 to 9, inclusive, and in support of-each of them, and ought to have refused to confirm said report, and ought to have set the same aside: which objections and facts will appear by the records and files in said proceedings.”
On the 21st day of December, 1883, the petitioners voluntarily dismissed the appeal on the ground that the appeal was taken through inadvertence. Counsel for the relator contends that, the appeal having been dismissed because it was taken through inadvertence, the jurisdiction of the probate court is restored, and that it is competent for this Court to direct the probate court to consider the affidavits filed on the motion to set aside the report of the jury, and if in the opinion of that court a sufficient cause was shown it should vacate the report. If this claim is correct it would leave the case in an anomalous condition. The owners would be deprived of their property without any compensation having first been determined. The relator is not in a position to complain of any error in the action of the court in confirming the report. It was upon the relator’s motion that the order was made, and it has made use of this order as the basis of obtaining substantial rights. By causing it to be recorded and paying the compensation awarded by the commissioners the railroad company has obtained the right to enter upon and take possession of- and use the land, and by force of the statute the owners have been divested and barred of all right, estate and interest in the real estate.
Under these circumstances the order of confirmation and the proceedings based thereon cannot be disturbed. The Constitution expressly,provides : “The property of no person shall be taken by any corporation for public use without compensation being first made or secured, in such manner as may be prescribed by law.” Art. XY, sec. 9. Another provision of the Constitution requires the necessity for taking the property for the public uses as well as the compensation, to be ascertained by a jury or commissioners. These requirements are conditions precedent to the taking, and must first be complied with before an individual can be compelled to part with the title or possession of his property. “ Compensation is a constitutional condition of such taking, and it can only be lawful when the necessity of the taking, as well as the measure of compensation, has been determined in a legal way.” Sheldon v. Kalamazoo 24 Mich. 386. The effect of setting aside the report of the commissioners would be to leave the compensation undetermined, and the owners divested of their property.
The necessities of the corporation for the immediate use of the land for the purpose of constructing its road are not sufficient to nullify these constitutional safeguards to the rights of private property. If they may be ignored in one case, under the plea of necessity, they may be in all, and the railroad company may proceed to seize upon private property and construct its road, and leave the questions of the necessity of the taking and the compensation to be made to be determined at its leisure. The acts of the relator, as disclosed by this record subsequently to the application for this writ, render the remedy by mandamus improper under the circumstances.
The writ of mandamus is denied.
The other Justices concurred. | [
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Campbell, J.
This is trover brought for the conversion of
wheat seized first as a growing crop and afterwards sold on executions against Harvey M. Wheeler, plaintiff’s father, but claimed as belonging to plaintiff. This levy was made in December, 1881. The sale was in August, 1882, and this suit was brought in September, 1882.
* These executions which were on several judgments, were levied at the same time on a considerable amount of personal property, which was sold in January, 1882. After defendant had sold enough to make up the full amount of the executions and costs, he went further and sold the remainder, realizing between two and three hundred dollars surplus. All this money he kept in his own custody and neither paid it to creditors nor endorsed it on the writs. After these sales a suit was brought against defendant in trover by plaintiff for the conversion of the property sold. One Dr. Watson also replevied from the purchasers certain of the personal property on which plaintiff had given him a chattel mortgage. While these suits were pending, defendant in August, 1882, sold the wheat in question under the old levy. Thereupon plaintiff brought this suit. While this present suit was pending defendant settled the Watson replevin suits, and paid $500 to the purchasers from whom the articles had been replevied.
On the trial of the present suit, after the testimony was in, and after several rulings had been made adversely to plaintiff, the court finally directed a verdict for defendant on the ground that the former trover suit should have covered this wheat ‘ also.
No plea or other notice had been put in relying on any such defense, but in our opinion, if there had been it would have made no difference. Plaintiff had a right to treat the sale in each case as .a conversion, and was not compellable, whether allowable or not to treat the original levy as the one conversion on which he sought to recover. As there could be no very great damage from a mere levy on growing crops, which might never pass to a sale, it was wise to postpone the action until something was done which would fix real and ascertainable damages. We do not think there is any legal principle which requires these separate grievances to be consolidated in one action. The plaintiff had a right to prosecute for the twro sales separately, and the case was improperly-taken from the jury.
The court also erred in holding that the finding of the jury against plaintiff in the other case fixed the quality of the transaction between plaintiff and his father as void, so as to preclude inquiry into it thereafter. There was nothing on the record to make any such determination conclusive beyond that case itself. No inquiry can be allowed in such a case as this into the opinions of the jury on the parol testimony in another case, for purposes of estoppel. A record may be a bar, because that contains elements which cannot be disputed. But it would be a very dangerous doctrine to allow the verdict of a jury on a controversy involving many facts, to be made evidence in another suit of any of the items of testimony entering into that controversy, and not fixed by the record itself. Here too there was nothing in the pleadings to found such a defense on, if otherwise valid.
The court below seems to have overlooked a principle relating to acts in wrong of creditors which was of considerable importance. While transactions of sale or other arrangements to their prejudice may be bad as to creditors, they are nevertheless valid as between the parties; and when enough property has been raised to satisfy the claims of creditors, any further needless disposition of the balance is not justified, and is a grievance against the vendee, who as to such surplus is the lawful owner. The present record does not enable us to judge ourselves or to know just what the court would have said to the jury as to the right of the defendant to sell the wheat on the executions, and under what circumstances and to what extent he would be liable. We therefore coniine our suggestions to the distinction between the rights of creditors and those of other persons not defrauded, to avoid dealings which are claimed to have been unlawful as against creditors. We need not on this record consider any of the rulings beyond this. But the ruling that the finding in the one suit concludes the other involves this particular error as well as the general one before referred to, and seems to call for this consideration. We pass by the remaining rulings as they may not come up again.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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Cooley, C. J.
This is an action to recover damages for an injury which the plaintiff claims to have received through the negligence of the defendants. In the circuit court the plaintiff recovered a large verdict.
The material facts are the following: The defendants are joint owners of a steam saw-mill at Muskegon. In September, 1882, three of the defendants were operating the mill, and it is claimed that the fourth was so interested in the results of the business as to be jointly liable with the others for negligent management. A large force of hands is employed in the mill when it is in operation. It stands with one end to the lake, and the logs are taken directly from the water to the log deck. The log-way for this purpose is an inclined trough-shaped way, in the bottom of which runs an endless chain with spikes upon it, which take hold upon the log and carry it up the trough to a spike roller, which catches it and rolls it to one side on the log deck. The chain and the spiked roller are moved tod controlled by a large iron gearing-wheel, or bull-wheel, at the upper end of the log-way. The wheel gearing has a lever attached, which' is operated by a man in charge, who throws the wheel in and out of gear at pleasure, and moves or stops the logs as occasion may require. It sometimes happens that a crooked log, in coming up, will roll to one side or the other, and that the man in charge will need assistance to bring the log back to its place. When he does so, he calls for help, and this help is furnished by some one employed on the same floor. The bull-wheel is a heavy iron wheel, about thirty-eight inches in diameter. Its speed is about fifteen revolutions to the minute, and it runs within an inch or so of the bridge-tree which supports it. The bridge-tree on the side where the injury occurred is ten inches in width, and at the time of the injury there was a box at the side of it, and of the same height, which gave ten inches additional width. The center of the shaft of the wheel sat a few inches above the bridge-tree, so that the wheel was more than half above it. The wheel was entirely uncovered. The man in charge stood partially behind the wheel and above it.
The injury occurred September 12, 1882. The plaintiff, who was eighteen years of age, had been at work in the service of the defendants, who were operating the mill, and had been employed on the log deck for four weeks or so at that time. Ilis business was to catch the sawed lumber from the carriers, and place it where it should be required. While working there he had been called two or three times to assist the man at the bull-wheel in bringing a log back to its place, and had given the required aid. In the afternoon of the day named he was called to give assistance again, and he went with his cant hook, stepped upon the box by the side of the bridge tree, reached over the wheel, and drew the log to its place. The wheel was then standing still, but as the plaintiff turned to go back to his work, the wheel was started up. The man in charge of it was not at the time looking at the plaintiff, but immediately he heard a cry, and turning saw the plaintiff’s foot in the wheel. He threw the wheel out of gear instantly, but the plaintiff’s limb was found to be so badly crushed as to require amputation above the knee. IIow the accident occurred is not well explained. The plaintiff appears to have slipped as he turned about, but no one seems to understand why this should have brought his foot into the bull-wheel.
The plaintiff relies for a recovery upon the negligence of the defendants in leaving the wheel uncovered. It was shown on the trial that at a very small expense a protection could have been constructed by the side of the wheel which would have rendered this accident impossible, and it is contended that the failure to provide this protection was such culpable disregard of the safety of those whom the defendants employed as to make them responsible for all consequences. If the accident which occurred was one at all likely to happen— if it was a probable consequence of a person working about the'wheel that he would be caught in it as the plaintiff was,— there would be ground for pressing this argument. But the accident cannot be said to be one which even a prudent man would have been likely to anticipate. The implement from which danger might come was a revolving wheel fully exposed to sight, and much less dangerous, one would suppose, than the saws in the same mill which could not possibly be covered. It would be difficult to mention any kind of powerful machinery in a manufactory of any sort which, before an accident had occurred, would seem less likely to have caused one.
The unexpected has happened, and we have only to see whether the defendants were neglecting any duty in not guarding against it.. We do not learn that there was any thing unusual in the bull-wheel of a saw-mill being left thus uncovered, and we have a right to assume that there was not, or we should have been informed. The plaintiff was at work in the same room, where he saw the wheel continually, and was as much bound to expect danger from it as was any one. But apparently he had no suspicion that the wheel was likely to do him harm, and in fact it would not have harmed him had not a very unexpected and antecedently improbable accident brought his foot within the arms of the wheel.
A similar accident, attended by equally serious consequences, might happen almost anywhere, in any machine-shop or on a farm as well as in a mill, and after it had happened it could be readily seen how it might have been avoided. But the fact that it was avoidable does not prove that there was fault in not anticipating and providing against it. If a farm laborer falls from the liay-mow, the fall does not demonstrate that the farmer was culpable for not railing the mow in. A man stumbling in a blacksmith-shop might have his hand or even his head thrown under the trip-hammer, but it would not follow that there had been any neglect of duty on the part of the blacksmith in leaving the hammer exposed. So far as there is a duty resting upon the proprietor in any of these cases, it is a duty to guard against probable dangers ; and it does not go to the extent of requiring him to render accidental injuries impossible.
This case closely resembles Richard v. Rough, ante, p. 212, which was submitted a few days earlier. In both cases the person injured was a laborer, who had the same means as the employer of understanding the danger. In both cases the injury was the result of such an accident as no one would have been likely to foresee, — its liability to happen was only i^roved by its actually happening. And in both, after the injury had occurred, it was easy to show how it might have been avoided. But the very fact that the laborer, who was not wanting in intelligence or incapable of judging of probable dangers, should continue to expose himself without hesitation, and apparently without fear, to such risks as these were, is very conclusive proof, either that the employer was not culpable in the matter complained of, or that the laborer was inexcusably careless of his own safety. But the truth undoubtedly is that the accident which occurred, so far from having been anticipated by either party, was a surprise to both.
The precise accident that occurred in either of these cases might never occur again at all. The next might be some thing entirely different, and require altogether different precautions. But it might, nevertheless, be seen after it had occurred that it could have been easily guarded against. If the fact that prevention was possible is to render the employer liable, then he may as well be made an insurer of the safety of those in his service in express terms, for to all intents- and purposes he would in law be insurer whether nominally so or not. But this would work a radical change in the law of negligence in its application to the relation in which these parties stood to each other.
Some importance was attached on the trial and on the argument in this Court to the fact that the plaintiff testified that he did not fully understand and appreciate the danger fi’om the wheel; but what he could have meant by this is not clear. He knew as well as any one could know that if he put his foot between the arms of the revolving wheel his leg would be crushed, and he could judge as well as any one how much he was exposed to such an occurrence. If he were to say the contrary to this, it would be just as idle as for a man working about a precipice to say he did not understand or appreciate the danger which might come from falling over. Probably what the plaintiff really meant was that he did not look for or anticipate such an accident as occurred. But neither did the defendants. We think the plaintiff failed entirely to make out any case, and the jury should have been so instructed. The evidence shows a case of pure accident, with no more negligence on one side than on the other.
A new trial must be granted.
Campbell and Sherwood, JJ., concurred. Champlin, J.,. did not sit in this case. | [
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Sherwood, J.
The complainant on the 3d day of November, 1882, filed her bill of complaint against her husband, the defendant, in the Lenawee circuit court, to obtain a decree of divorce, alleging as grounds therefor cruel treatment and drunkenness and neglect to properly support complainant and her children. The defendant made and filed his answer thereto, denying the material grounds for divorce charged in the bill, and the issue is now completed by the filing of the general replication. Proofs were taken before a circuit court commissioner, and on the 1st day of December, 1882, a decree of divorce was granted to complainant on the grounds charged in her bill.
On the 27th day of January, 1883, the defendant applied to the circuit court for leave to remove said cause by appeal to this Court, the time for appealing under the statutes having expired, which motion was denied by the circuit judge and very properly.
The bill of complaint contains only a prayer for dissolution of the marriage and for the care and custody of the minor children. It says nothing in regard to alimony, temporary or permanent, or money to defray her necessary expenses in the prosecution of her suit.
By an arrangement between the counsel for the respective parties and unknown to the court, she was not to apply for alimony or expenses during the proceedings, and the defendant paid to her counsel $4500, he being worth, as alleged in the bill of complaint, about $40,000 (which is not denied in the answer). This amount the defendant claims was to be in full of her interest in his property. This she denies, and avers she never herself made such agreement or authorized any such agreement to be made for her, and the evidence and proceedings fail to show any such agreement on her part. The object of the application of the defendant for leave to appeal was to get a settlement of the property question by the court.
On the 13th of January, 1883, the' complainant filed her declaration in ejectment to recover her dower interests in the hands of defendant, under How. Stat., § 6246. Believing that her solicitors had not dealt fairly witli her and had conducted her case prejudicially to her interests and attempted to bind her by unauthorized acts, she dismissed them from her service and substituted others in their stead, by whom she was advised that the entire property matter should have been litigated and settled in the divorce suit, and under their advice a motion was made on her part, upon the files in the case, on the 10th day of December, 1883, to amend the decree entered in the case heretofore referred to by “ inserting therein a provision referring the cause to a circuit court commissioner to take proofs and report what would be a proper allowance of alimony to complainant, and a provision permitting complainant an election to receive the value of the dower in the lands of the defendant as alimony on her executing a proper release of the same.” This motion was denied by the circuit judge, and a decree entered to that effect on the 11th day of December, 1883. It is from this decree the appeal to this Court is taken. We think the order denying that (complainant’s) motion was correct. There was nothing contained in these pleadings or decree to which the subject-matter of the motion was germane, or upon which the relief sought could be based. The court had no power to grant the relief upon the motion as made. The complainant’s only remedy in the court of chancery if she had any, was by supplemental bill in the nature of a bill of review. We do not intend ■ however to be understood that the suit in ejectment was not properly brought, and if prosecuted will not afford the complainant adequate remedy. Upon that question we do not feel called upon to pass.
The order made by the circuit judge denying complainant’s motion, must be affirmed without costs to either party.
The other Justices concurred.
“At a session of said court, held at the court house iu the city of Adrian, in said county, on the first day of December, in the year one thousand eight hundred and eighty-two:
Present, Hon. Joseph H. Steeke, circuit judge of the Eleventh judicial circuit, presiding.
This cause having been brought on to be heard upon the bill of complaint, answer, and replication filed therein, and the stipulation on file, and upon the report of Prank R. Payne, one of the circuit court commissioners for said county of Lenawee, to whom it was referred by an order heretofore entered therein, to take proofs of the material facts charged in such bill of complaint, and report the same to said court, with his opinion thereon: On reading the pleadings, the report of such circuit court commissioner, and the proofs accompanying the same, from which it satisfactorily appears to this court that the material facts charged in such bill of complaint are true, and that the defendant, George W. Jordan, has been guilty of several acts of habitual drunkenness and extreme cruelty therein charged, and that said defendant is an unsuitable person to have the care, custody, and maintenance of' the minor child, Eddie Jordan, the issue of their said marriage, and named in said bill; and that the complainant, Sarah M. Jordan, is a suitable person to have the care, custody and maintenance of said "child.
On motion of Wallace Westerman, of counsel for said complainant, and Bean & Underwood, counsel for defendant, being present in court, it is ordered, adjudged and decreed, and this court, by virtue of the authority therein vested, and in pursuance of the statute in such case made and provided, doth order, adjudge and-decree, that the marriage between the said complainant, Sarah M. Jordan, and the said defendant, George W. Jordan, be dissolved, and the same is hereby dissolved accordingly, and a divorce from the bonds of matrimony between said parties is also adjudged and decreed.
And it is also further ordered,^adjudged and decreed that said complainant, Sarah M. Jordan, shall have the care, custody and maintenance of said minor child, Eddie Jordan, and that said child shall remain with said complainant, Sarah M. Jordan, until he shall attain the age of fourteen years, or until the further order of the court.
Jos. H. Steeke,
Circuit Judge of the Eleventh Judicial Circuit.” | [
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Cooley, C. J.
This case has twice before been in this Court, and is reported in 40 Mich. 42, and 46 Mich. 215. On the first two trials the defendant had judgments which were reversed; on the third the plaintiff recovered, and the defendant is now the appellant.
The facts are that the plaintiff, in August, 1876, was occupant of a farm in the county of .Kalamazoo, owned by his wife, and had harvested and stored in the barn a crop of wheat. ITe had living with him at the time eleven children, two of whom were over the age of twenty-one, and worked away from home a part of the time. Plaintiff had prepared for seeding to wheat about forty acres in the fall, and relied for seed wheat, and also for bread, upon the crop in the barn. Defendant was sheriff of Kalamazoo county, and as such had for collection an execution against the plaintiff. One of his deputies, by virtue of this execution, made a levy upon the wheat August 25,1876, and another went five days later with a threshing machine to the barn, and there, against the protest of the plaintiff, proceeded to thresh it. The entrance upon the premises was forbidden, but was persisted in, and the plaintiff’s evidence tended to show that the deputy said it was hard and wrong, and he ought not to do it, but he did it because the defendant’s attorney told him to do it. It also tended to show that the machine threshed the grain imperfectly, and much was wasted. When the threshing was completed the grain was taken tp a railroad station several miles distant, and there advertised and sold. The plaintiff then sued in trover. He claimed a part of the wheat under the statutory exemption of six months provision for a householder and his family, and another part for seeding, under the provision exempting, to the amount of $250, the tools, implements, stock, etc., necessary to enable him to carry on his business. The defendant gave evidence tending to show that he left in the barn sufficient wheat for plaintiff’s family for six months, and he claimed that the plaintiff’s children who were over the age of twenty-one were not to be reckoned as part of liis family. Defendant also offered to show that plaintiff had other property to the value of more than $250, which would be exempt to him as tools,-implements, stock, etc., and therefore was not entitled to recover for seed wheat.
The circuit judge held that in judging of the exemption of wheat for provisions, the actual family of the plaintiff was to be considered as the family to provide for, even though there might be members for whom the plaintiff would not be legally bound to provide. As applied to the circumstances of this case, we think the instruction was correct. The persons as to whom the question was made were children of the plaintiff, and were properly with him if they had no home elsewhere. Besides, there is always a contingent liability for the support of children who are over age, in case they become a public charge.
It is not error to exclude evidence that the plaintiff had other property which the plaintiff might hold as exempt, as being tools, implements, stock, etc., necessary in his business. The statute requires that the officer shall levy upon all the debtor has of such property, and then permit him to select to the amount exempt. When the officer fails to obey the law, and thereby deprives the debtor of the opportunity to make selection before sale, he may elect to take the property sold and sue for its value. Wyckoff v. Wyllis 8 Mich. 48; Town v. Elmore 38 Mich. 305.
The circuit judge instructed the jury that the defendant should be held responsible for all the wheat taken by him, including any that might have been wasted by him in the threshing. This was entirely correct.
In giving to the jury the rule of damages, the circuit judge further instructed them that if the defendant took the exempt property knowing that he had no legal right to take it, he might be considered as acting in bad faith; and that when the wrongful act is shown to have been committed willfully, maliciously and wantonly, or with a view of obtaining unlawfully or with a fraudulent intent a benefit to the defendant, or those for whom he acts, by means of the wrongful acts with reference to the property, or when the wrongful act was committed with insulting and abusive language and deportment, exemplary or punitive damages-may be given. This instruction, in substance, was repeated in several forms, and the jury were told that if they found the plaintiff entitled to exemplary damages, they would then take into consideration the invasion of plaintiff’s premises by defendant with men and machines under the circumstances-as they existed, the intentional wrong done to the plaintiff by the invasion, and by taking away exempt property, etc., and, in view of these instructions, award such exemplary damages-as in their discretion, exercising their cool, deliberate judgment, they believed ought to be awarded. Also, that in estimating the amount of their verdict they would add to-the exemplary damages, if they found any, the plaintiff’s actual damages, with interest.
One objection to these instructions is that they suggested elements of damage not appearing in the case. The record does not show or intimate that there was evidence of insulting and abusive language or deportment; it only appears that the officer, under the instructions of the attorney controlling the execution, persisted in going upon the premises and threshing and removing the wheat, though he did not think it legal to do so. But the principal fault in the instructions-is to be found in the distinct presentation of the idea that the jury, after estimating the actual damages of the defendant, might go further and give a further sum, limited only by their discretion, by way of punishment and example.
That all the circumstances attending a willful trespass or other wrong may be given in evidence to the jury, and taken into account by them in estimating damages, is a familiar principle. Allison v. Chandler 11 Mich. 542; Welch v. Ware 32 Mich. 78: Elliott v. Van Buren 33 Mich. 49: s. c. 20 Am. Rep. 668; Briggs v. Milburn 40 Mich. 512. Sometimes the damages which the jury are allowed to give in addition to those which measure an actual injury by a money standard, are spoken of as exemplary damages, but unless this term is-properly explained there is great danger that it will mislead the jury into supposing that, after compensating the plaintiff to the full extent of his injury they may proceed to punish the defendant with unlimited discretion. The instructions given in this case were peculiarly liable to that interpretation. Under the instructions the damages suffered by the plaintiff, and the sum to be assessed against him by the jury, in their discretion, by way of punishment, were to be separately considered and made up, and the illegal acts of the officer were to be considered, not necessarily as they damnified or affected the plaintiff, in feeling or otherwise, but as intrinsically they were deserving of censure.
The purpose of an action for tort is to recover the damages which the plaintiff has sustained from an injury done him by the defendant. In some cases the damages are incapable of pecuniary estimation; and the court performs its duty in submitting all the facts to the jury, and leaving them to estimate the plaintiff’s damages as best they may under all the circumstances. In other cases there may be a partial estimate of damages by a money standard, but the invasion of the plaintiff’s rights has been accompanied by circumstances of peculiar aggravation, which are calculated to vex and annoy the plaintiff and cause him to suffer much beyond what he would suffer from the pecuniary loss. Here it is manifestly proper that the jury should estimate the damages with the aggravating circumstances in mind, and that they should endeavor fairly to compensate the plaintiff for the wrong he has suffered. But in all cases it is to be distinctly borne in mind that compensation to the plaintiff is the purpose in view, and any instruction which is calculated to lead them to suppose that besides compensating the plaintiff they may punish the defendant is erroneous. The instructions in this case were of that character. It was proper to give the jury to understand that they might take into account all the circumstances in proof before them, and make up their award of damages in view of them all; but they were not to be left at liberty, in doing so, to lose sight of the fact that compensation to the plaintiff was the end in view.
Under ordinary circumstances the error now noted would render a reversal imperative. But, as has been already mentioned, this is the third time this case has been brought to this court, and the judgment has twice been reversed. The sum involved is small, and the cost of any one of the trials has probably exceeded the amount in controversy. It would be inexcusable to allow the litigation to go on longer if it can now be disposed of finally.
We are satisfied from an examination of the several records which have been brought to this Court that the plaintiff on a trial without errors would recover. We are also satisfied that the recovery he has secured was not swelled materially, if at all, by the erroneous instruction which has been commented on. It would benefit neither party, therefore, to send the case back again. But we do not think the plaintiff ought to recover costs of the trial in which the error was committed, nor the costs of this Court on this writ of error. If we reverse the judgment so far as it gave costs of the last trial, and give costs to neither party in this Court, we think justice will be done as near as it will be in our power to do it. And order will be given accordingly-
Champlin and Campbell, JJ., concurred. Sherwood, J., did not sit. | [
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Champlin, J.
The city of Saginaw declared it necessary to establish a certain street, being an extension of Main street to Webster street. Section 2 of title 4 of the charter of the city (Act No. 227, Local Acts of 1883,) provides that whenever the common council shall by resolution declare that it is necessary to lay out and establish a street across private-property, they shall fix a time and place when and where the council will treat with the owners of such land for the right of way across the same. Section 3 provides that at the time and place fixed for treating with the owners, or at some subsequent time to which the matter may be adjourned, the common council may agree with the owners of such lands for the right of way across the same, and take a release from such owners therefor, or .from any of such owners; and section 4 provides that if the common council, for any reason* shall not be able to obtain a release, they may direct the city attorney to apply to a justice to impanel a jury, &c.
The evident object of this statute is that the city may purchase and the land-owners sell the right of way for the proposed street without the necessity or expense of taking proceedings to divest the owner of his property in invitum, by tbe exercise of the power of eminent domain. The provision requiring the common council to treat with the landowner is a condition precedent to the exercise of the right of eminent domain, and an honest compliance with the statute is jurisdictional and lies at the foundation of the proceedings. Chicago & Mich. Lake Shore R. R. Co. v. Sanford 23 Mich. 418; Mansfield, Coldwater & Lake Mich. R. R. Co. v. Clark 23 Mich. 519; Dill. Mun. Corp. §§ 470, 605.
At the time and place fixed by the common council to treat with the owners Mrs. Laue submitted a written communication in which she offered to sell the land to the city-for one hundred dollars. The record shows that this communication was “ laid on the table.” And without accepting or rejecting her proposition, or making her any offer, or any attempt at negotiation, the common council immediately proceeded to direct its attorney to apply to a justice to impanel a jury to condemn the land; and such proceedings were thereupon had that her land was condemned and forty dollars was awarded, not to her, but to her dead husband, as damages and compensation.
To call the action of the common council in this matter a treating with the owners or with Mrs. Laue, is an abuse of language or a misconception of the meaning of words. It was-the plain duty of the common council to make as well as to receive proposals for the purpose of adjusting the difference, if any should exist, as to the price to be paid for the right of way over Mrs. Lane’s land. Had they done so it is fair to presume that an amicable adjustment could have been reached, and the expense of these proceedings and litigation saved to both parties. The law at least provided the means whereby this desirable object could be attained, if fairly and in good faith complied with.
There are other serious objections made to the proceedings but as this is sufficient to dispose of the case we forbear to notice them. The proceedings must be quashed, with costs to be taxed against defendant.
The other Justices concurred. | [
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Btjtzel, J.
The Industrial Stamping & Manufacturing Company, a division of Vinco Corporation,, hereinafter referred to as defendant company, engages in the business of stamping and plating automobile parts. ' Until September, 1954, its operations were conducted in Detroit, Michigan, at 2 locations, hereinafter referred to as the Epworth plant (stamping) and the Beaufait plant (plating). The employees of both plants were unionized and had collective bargaining contracts with defendant company, the Epworth union being Local 174, UAW-CIO and the Beaufait union being AEL Metal Polishers, Local 1.
On September 24, 1954, defendant company purchased the land, buildings, machinery and inventory of the Detroit- Boulevard plant of Parker-Wolverine Division of the Udylite Corporation, whose business was competitive with-its own. The employees of this Boulevard plant were also unionized, the stamping employees being represented by the Mechanics Educational Society of America, hereinafter called MESA, and the plating employees by Local 189, UAW-CIO, each having collective bargaining contracts with Parker-Wolverine. Upon consummation cf the purchase Parker-Wolverine notified its employees of the sale to defendant company, advised them of the termination of their employment with Parker-Wolverine, and further advised that defendant company planned to offer many of them employment at the same plant. Almost contemporaneously with the purchase and only a few days later, defendant company did hire many of these former Parker-Wolverine employees and continued the operation of the Boulevard plant. Its plan was to eventually merge all operations into the Boulevard plant by transferring equipment and employees from Epworth and Beaufait.
On September 27, 1954, defendant company also filed a petition with the national labor relations board, hereinafter referred to as the board, asking that the 4 groups of employees at the 3 plants (Epworth, Beaufait, Boulevard stamping and Boulevard plating) be considered as a single bargaining unit and requesting the board to conduct an election to determine which union should become the sole bargaining representative. Locals 174 and 189 UAW-CIO filed similar petitions. MESA and APL Metal Polishers, Local 1, were permitted to intervene and they objected to the petitions on the ground that their existing contracts were a bar to the proceedings. In its “Decision and Direction of Election” dated March 21, 1955, the board overruled this objection saying:
“We view the consolidated operations as being comparable to an entirely new operation. Therefore, the contracts of Local 1 and MESA covering-only a fraction of the enlarged employee complement are not a bar to a present determination' of representatives.” (Citing Greyhound Garage of Jacksonville, Inc., 95 NLRB 902 at 904; New Jersey Natural Gas Company, 101 NLRB 251 at 252; Herman Lowenstein, Inc., 75 NLRB 377 at 379.)
The board further determined that defendant company was engaged in commerce within the-meaning of the national labor management relations-act, 1947, hereinafter referred to as the LMRA;that the appropriate bargaining unit consisted of employees at all 3 plants; and directed that an election be held. It also settled certain questions regarding eligibility to vote in the election. The election was held and defendant MESA was selected as the bargaining representative and was duly certified as such by the board.
Thereafter, defendant company and MESA commenced negotiations for a new contract presumably to settle, inter alia, the question of the adjustment of seniority rights as between defendant company’s. employees at the Epworth and Beaufait plants and the rehired employees of the newly-acquired Boulevard plant, an issue necessarily raised by the consolidation of the different units each with its own seniority list. Prior to the completion of negotiations readjustments in employment became necessary resulting in the laying off of certain employees. The seniority rule adopted in reference to these layoffs resulted in the dismissal of some of the employees at the Epworth and Beaufait plants and a retention of some of the employees at the Boulevard plant, these being the rehired Parker-Wolverine employees. In addition there were certain other job classification adjustments alleged to be to the detriment of Epworth and Beaufait employees.
Plaintiffs are and represent a number of employees at the Epworth and Beaufait plants, now members of defendant MESA. They contend that they were discriminated against by defendant MESA and/or the defendant company in the matter of the layoffs and job classifications. It is their position that the seniority of the Boulevard employees should date from September 27, 1954, the date such employees were rehired by defendant company following the purchase of that plant from Parker-Wolverine and that plaintiffs’ seniority rights therefore..took precedence, notwithstanding such old •employees might have been doing like work even possibly at the same bench or machines for years while in the employ of Parker-Wolverine.
Plaintiffs filed charges with the board against MESA and the company alleging that the foregoing constituted unfair labor practices as defined in the LMRA. After these charges had been submitted to the board and while they were being considered by it, plaintiffs filed a bill of complaint in the circuit court for the county of Wayne in chancery praying for the issuance of ah injunction re straining defendants MESA and company from discriminating against plaintiffs in regard to seniority and restraining defendants from taking any action which recognizes a date other than September 27, 1954, for seniority of the former employees of Parker-Wolverine. They asked for other miscellaneous relief. An ex parte restraining order was issued. Thereafter defendant company moved the court to dismiss the bill or in the alternative to dismiss the temporary restraining order and defendant MESA moved to dismiss the bill. Both motions were premised on the State court’s lack of jurisdiction in the matter. The court below dissolved the restraining order, “the court being-of the opinion that this court had no jurisdiction to issue said temporary restraining order for the reason that jurisdiction is in the national labor relations board.”
However, the court also entered an order denying the motions to dismiss the bill of complaint. On leave granted, both sides have appealed, plaintiffs from the order dissolving the injunction and defendant company from the order denying dismissal of the bill. We granted a stay of the order dissolving the injunction.
Under the facts presented, is the State court precluded from taking jurisdiction in view of the policy and provisions of the national labor management relations act and the action of the national labor relations board? We are directly concerned with 1 aspect of the so-called problem of “Federal pre-emption” in the labor relations field, as well as certain other legal concepts.
Plaintiffs’ ultimate contention is that seniority for the former employees of Parker-Wolverine can only date from September 27, 1954. They claim that the decision of the board designating all plants ■■and employees as 1 bargaining unit and directing an election also determined that the seniority date of the former employees of Parker-Wolverine was September 27, 1954, tbe date they were rehired by defendant company. Both defendants have consistently denied that the directive of the board ■contained snch a finding. The brief amicus curiae filed in this Court and cause by the national labor relations board similarly denies plaintiffs’ contention. While the decision of the board did speak of September 27,1954, as the hiring date for the Boulevard employees, it did so only in the context in regard to who would be eligible to vote in the election for a bargaining representative. The question of seniority is quite different and, as we shall note, g-enerally based upon, many considerations only 1 of which is- “hiring” date. The decision on the charges filed with the board by plaintiffs, to which we shall later refer, stated that the election directive was not determinative of seniority status. We find plaintiffs’ contention in that regard without merit.
While plaintiffs do not (ánd cannot here or under the act itself directly) contest the election directive and certification, we point out that the unit was determined, the election is directed and the bargaining representative certified pursuant to express provisions of the LMBA. 29 USCA 1954 Cum Supp § 159-(b). The gravamen of plaintiffs’ complaint is that seniority rights under their contracts with defendant company could not be affected by the election and certification of a new bargaining representative or any negotiations or rules adopted between that representative and/or defendant company. To the contrary, we think plaintiffs’ previous collective bargaining contracts similar in law to those of the individual employees in J. I. Case Co. v. NLRB, 321 US 332, 337 (64 S Ct 576, 88 L ed 762), where the court said that such contracts could not be availed of “to forestall bargaining or to limit or condition the terms of the' collective agreement.” In effect, as well as explicitly, the court there held that the contracts must yield to the procedures and functions of the Federal act.
Apparently the board does have a generally so-called “contract bar policy.” Evidently, however, it is merely a self-imposed procedural rule not prescribed or required by the statute. In Kearney & Trecker Corp. v. NLRB (CCA), 210 F2d 852, certiorari denied, 348 US 824 (75 S Ct 38, 99 L ed 649) , the court stated that where there is an organizational disagreement in regard to recognition the board may abrogate its “contract bar policy” and when it will do so in order to effect the policy of the Federal act is entirely a matter of board policy and discretion. See, also, NLRB v. Grace Co. (CCA), 184 F2d 126, 129. The LMRA, 29 USCA 1954 Cum Supp § 159(a), provides:
“Representatives designated .or -selected, for- the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.”
Section 8(d) of LMRA, 29 USCA 1954 Cum Supp § 158(d), requires of employers, employees, and labor organizations certain duties relative to termination and modifications of collective bargaining contracts, but releases them from some of these duties “upon an intervening certification of the board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 159(a).”
As to its meaning, the supreme court, in Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 US 301, 315 (69 S Ct 584, 93 L ed 691), stated that certification of a bargaining representative was “an assertion that as to this employer the State shall not impose a policy inconsistent with national policy, * * * or the national board’s interpretation of that policy.”
It thus appears that a determination of an entirely new bargaining unit, direction of an election and subsequent certification by the board imply at least a reconsideration and probably a modification of matters covered by previous contracts, such to be negotiated by the newly-certified bargaining representative and the employer. This would seem especially true in the case of plaintiffs’ seniority rights; We have held that seniority rights are not inherent in the employment relationship and are generally created and can be modified by collective bargaining-contracts, notwithstanding adverse effects to some employees. Hartley v. Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, 283 Mich 201; Ryan v. New York Central R. Co., 267 Mich 202; cf., Zdero v. Briggs Manufacturing Co., 338 Mich 549; and Elder v. New York Central R. Co. (CCA), 152 F2d 361.
In the Hartley Case, supra, an action for damages for breach of contract and loss of seniority, this Court stated in regard to the plaintiff’s seniority rights (p 206):
“The seniority rights acquired by her did not arise by virtue of her contract of employment with her employer, but existed by reason of the agreement of 1921 between the railway and the brotherhood. Ryan v. New York Central R. Co., 267 Mich 202. This agreement was executed for the benefit of all the members of the brotherhood and not for the individual benefit of plaintiff. When, by reason of changed econom ic circumstances, it became apparent that the earlier agreement should be modified in the general interest of all members of the brotherhood it was within the power of the latter to do so, notwithstanding the result thereof to plaintiff. The brotherhood had the power by agreement with the railway to create the seniority rights of plaintiff, and it likewise by the same method had the power to modify ~or destroy these rights in the interest of all the members.” (Emphasis added.)
In Ford Motor Co. v. Huffman, 345 US 330, 338, 339, 342 (73 S Ct 681, 97 L ed 1048), the petitioner claimed that certain provisions in the contract violated seniority rights given him under the selective service act and that the union’s acceptance of the provisions exceeded its authority as bargaining representative under the LMRA. In the course of its opinion denying plaintiff’s claims, the court noted:
“Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.
“Compromises on a temporary basis, with a view to long-range advantages, are natural incidents of negotiation. Differences in wages, hours and conditions of employment reflect countless variables. Seniority rules governing promotions, transfers, layoffs and similar matters may, in the first instance, revolve around length of competent service. Variations acceptable in the discretion of bargaining representatives, however, may well include differences based upon such matters as the unit within which, seniority is to be computed, the privileges to' which it shall relate, the nature of the work, the time at which it is done, the fitness, ability or age of the employees, their family responsibilities, injuries received in course of service, and time or labor' devoted to related public service, whether civil or military, voluntary or involuntary. See, e.g., Hartley v. Brotherhood of Clerks, 283 Mich 201; and see,, also, Williamson & Harris, Trends in Collective Bargaining (1945), pp 100-103. * * *
“Nor does anything in that act compel a bargaining representative to limit seniority clauses solely to the relative lengths of employment of the' respective employees.”
To the same effect see Aeronautical Industrial District Lodge 727 v. Campbell, 337 US 521, 527, 528 (69 S Ct 1287, 93 L ed 1513).
It is evident as was held in the Hartley Case supra, and as a matter of policy under the LMBA that plaintiffs’ seniority rights accumulated under contracts antedating the certification of a new bargaining representative for a new bargaining unit are not unchangeable. On the contrary, the certification of a new representative meant that plaintiffs’ seniority rights were to be the subject of negotiations for a new contract superseding the old ones. It meant that plaintiffs’ rights accumulated under' their former contracts could be terminated or modified by good-faith collective bargaining. Any other interpretation of the board’s action would allow existing contracts to subvert Federal policy in regard to certification of a bargaining representative for the appropriate unit as well as the process of collective bargaining. See J. I. Case Co. v. NLRB, supra.
While we do not consider the substantive merits of their claims, it appears in the complaint that 16 of the 17 plaintiffs specifically named as being dis criminated against were hired less than 2 years prior to September 27, 1954. Should these men necessarily be given absolute seniority over former employees of Parker-Wolverine who may have worked for that concern for many, many more years and who but for the circumstance of the purchase, a matter beyond their control, may be working at approximately the same jobs, at the same benches, and in the same plant? The very posing of the issue indicates that this is a matter to be settled by compromise and negotiation though the outcome may alienate or disgruntle a few.
This conclusion is fortified by our interpretation of the effect of the board’s further action. As previously noted, plaintiffs filed charges against MESA and the company alleging unfair labor practices as defined in the LMRA. It is evident that these charges were based upon the same facts alleged in plaintiffs’ bill of complaint in the State court, On August 26, 1955, the board’s regional director refused to issue a complaint, saying:
“It does not appear * * * that there is sufficient evidence that any conduct engaged in or attempted to date is violative of the act. Further proceedings at this time do not appear to be warranted.”
In passing, it may be said that in view of the election directive and consideration by the board of the charges filed by plaintiffs there can be no question as to the board’s jurisdiction insofar as defendant company’s relation to commerce is concerned. The issue is: Can the State court exercise jurisdiction under these circumstances?
States may enjoin mass or coercive picketing threatening a probable breach of the State’s peace, Allen-Bradley Local No. 1111, United Electrical, Radio & Machine Workers of America v. Wisconsin Employment Relations Board, 315 US 740 (62 S Ct 820, 86 L ed 1154); cf., Way Baking Co. v. Teamsters & Truck Drivers Local No. 164, AFL, 335 Mich. 478, or unannounced and intermittent work stoppages constituting “unprotected activity” under the LM RA. International Union, UAWA, AFL, Local 232 v. Wisconsin Employment Relations Board, 336 US 245 (69 S Ct 516, 93 L ed 651). See, also, Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, supra.
However, the supreme court has denied assertion of jurisdiction under State statutes conditioning or curtailing the right to peacefully picket or strike, International Union, UAW-CIO v. O’Brien, 339 US 454 (70 S Ct 781, 94 L ed 978); Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, Div. 998 v. Wisconsin Employment Relations Board, 340 US 383 (71 S Ct 359, 95 L ed 364, 22 ALR2d 874), or under a State statute interfering with the federally protected and provided for right to choose a bargaining representative, Hill v. Florida, ex rel. Watson, 325 US 538 (65 S Ct 1373, 89 L ed 1782), or under a State statute dealing with certification of bargaining representatives. LaCrosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 US 18 (69 S Ct 379, 93 L ed 463); Bethlehem Steel Co. v. New York State Labor Relations Board, 330 US 767 (67 S Ct 1026, 91 L ed 1234). See, also, Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 US 953 (70 S Ct 491, 94 L ed 588). In what has become the most notable case in this field, Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, AFL, 346 US 485 (74 S Ct 161, 98 L ed 228), the court was concerned with peaceful picketing not in the context of a labor dispute or strike. A lower Pennsylvania court enjoined the practice as violative of the State labor relations law. The supreme court of Pennsylvania reversed and was affirmed by the United States supreme court, which said (pp 488-491):
“Congress has taken in hand this particular type of controversy where it affects interstate commerce. In language almost identical to parts of the Pennsylvania statute, it has forbidden labor unions to exert certain types of coercion on employees through the medium of the employer. It is not necessary or appropriate for us to surmise how the national labor relations board might have decided this controversy had petitioners presented it to that body. The power and duty of primary decision lies with the board, not with us. But it is clear that the board was vested with power to entertain petitioners’ grievance, to issue its own complaint against respondents and, pending final hearing, to seek from the United States district court an injunction to prevent irreparable injury to petitioners while their case was being considered. * * *
“A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. * * * And the reasons for excluding State administrative bodies from assuming control of matters expressly placed within the competence of the Federal board also exclude State courts from like action.”
In the instant case the board has determined that there was insufficient evidence that the acts complained of in the State court were violative of the LMRA. Does this leave the State court free to act? It has been intimated that where the board has declined to exercise jurisdiction the State courts might then have jurisdiction. See Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, AFL, supra, at 488 cf., Bethlehem Steel Co. v. New York State Labor Relations Board, supra (including dissent). See, also, Building Trades Council v. Kinard Construction Co., 346 US 933 (74 S Ct 373, 98 L ed 423) (where the court specifically refrained from considering the question). However, here jurisdiction was exercised but no complaint issued.
In the Garner Case, supra, at 499, 500, the court stated:
“It must be remembered that petitioners’ State remedy was a suit for an injunction prohibiting the picketing. The Federal board, if it should find a violation of the national labor management relations act, would issue a cease-and-desist order and perhaps obtain a temporary injunction to preserve the status quo. Or if it found no violation, it would dismiss the complaint, thereby sanctioning the picketing. * * *
“The detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint. For the policy of the national labor management relations act is not to condemn all picketing but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the act that the public interest is served by freedom of labor to use the weapon of picketing. For a State to impinge on the area of labor combat designed to be free is quite as much an obstruction of Federal policy as if the State were to declare picketing free for purposes or by methods which the Federal act prohibits.” (Emphasis added.)
In Bethlehem Steel Co. v. New York State Labor Relations Board, supra, the court held that the State was without jurisdiction to designate a bargaining representative, the State law in that regard being necessarily in direct conflict with Federal law and policy. The court initially stated (p 772):
“It has long been the rule that exclusion of State ¡action may be implied from the nature of the legislation and the subject matter although express declaration of such result is wanting.”
After considering the instances where the States might exercise jurisdiction, Justice Jackson said ¡(P 774):
“However, the conclusion must be otherwise where failure of the Federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute.”
In characterizing the board’s refusal to entertain the plaintiff’s petition to designate foremen as a separate bargaining unit, the court said (p 775):
“It made clear that its refusal to designate foremen’s bargaining units was a determination and an exercise of its discretion to determine that such units were not appropriate for bargaining purposes. I Maryland Drydock Co., 49 NLRB 733. We cannot, ■therefore, deal with this as a case where Federal power has been delegated but lies dormant and unexereised.”
It would thus appear that the exercise of jurisdiction plus a refusal to issue a complaint or a finding that no unfair labor practice was engaged in may, in some circumstances, amount to a sanctioning of the activities complained of or an indication that the activities are protected as a matter of board and LMRA policy and should be left alone. That this may be true is illustrated by the recent case of Weber v. Anheuser-Busch, Inc., 348 US 468 (75 |S Ct 480, 99 L ed 546). There, after certification, the bargaining representative in negotiations with the employer sought to obtain a contract provision to jthe effect that the employer would not contract for jrepair or replacement of machinery with other than contractors having collective bargaining agreements with that particular bargaining representative. The minority union and the employer objected to such a provision and negotiations became deadlocked, whereupon the bargaining representative struck. The employer filed charges with the board alleging unfair labor practices. Pending the disposition of these charges the employer also sought an injunction in the State court, which was granted. The case came to the supreme court on certiorari from the State supreme court’s affirmance of the granting of the injunction, the issue being one of Federal preemption. The board found that the LMRA had not been violated. In the course of an opinion holding the State court to have been without jurisdiction, the court said (pp 478, 481):
“Even if it were clear that no unfair labor practices were involved, it would not necessarily follow that the State was free to issue its injunction. If the conduct does not fall within the prohibitions of section 8 of the Taft-Hartley act, it may fall within the protection of section 7. * * *
“But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices and where the conduct, if not prohibited by the Federal act, may be reasonably deemed to come within the protection afforded by that act, the State court must decline jurisdiction in deference to the tribunal which congress has selected for determining such issues in the first instance.”
Section 1 of the LMRA, 29 USCA 1954 Cum Supp § 151, declares that it is national policy to encourage “the practice and procedure of collective bargaining.” Section 7, 29 USCA 1954 Cum Supp § 157, grants employees the right to bargain collectively. As noted, section 9(a), 29 USCA 1954 Cum Supp § 159(a), makes the certified bargaining representative the sole representative for purposes of collective bargaining. Seniority rights are within the purview of these sections. Ford Motor Co. v. Huffman, supra.
We are of the opinion that the effect of the board’s designation of a new bargaining unit, direction of election 'and certification of a bargaining representative, regardless of existing contracts, coupled with the later determination that the evidence was insufficient to show conduct violative of the act amount to a virtual mandate that negotiations between defendants MESA and company were to be left undisturbed. What is under the “protection” of the Federal act in this case is the freedom to resolve at the bargaining-table f the problem of plaintiffs’ seniority rights raised by the acquisition of the Boulevard plant and the rehiring of former Parker-Wolverine employees. The board has indicated by its actions pursuant to LMRA policy that the questions raised by plaintiffs’ complaint are in the first instance to be determined by negotiations unfettered by the assertion in this or any court that their seniority rights are fixed and immutable. To enjoin defendants in the manner plaintiffs seek would be to unduly restrict that freedom of collective bargaining which the supreme court has declared to be one of the paramount objectives of the Federal act.
Plaintiffs rely principally upon the following cases: Trailmobile v. Whirls, 331 US 40 (67 S Ct 982, 91L ed 1328) (particularly dissenting opinion); Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 US 210 (65 S Ct 235, 89 L ed 187); Steele v. Louisville & Nashville R. Co., 323 US 192 (65 S Ct 226, 89 L ed 173); Brotherhood of Railroad Trainmen v. Howard, 343 US 768 (72 S Ct 1022, 96 L ed 1283); Mount v. Grand International Brotherhood of Locomotive Engineers (CCA 6th Cir, 1955), 37 LRRM 2034; Ford Motor Co. v. Huffman, supra. Plaintiffs in all of these cases sought judicial redress for alleged discrimination by the bargaining representative in violation of its statutory duty. In the Whirls Case the petitioner sought to preserve seniority rights, under the selective service act in a situation where there was a merger of companies and consequent dispute as to seniority. As noted, the Huffman Case also concerned alleged seniority rights under the selective service act. In the Steele, Howard and Tunstall Cases plaintiffs claimed racial discrimination. In the Mount Case the court was concerned with alleged discrimination in regard to a proposed contract provision changing the allocation of territorial and consequently seniority rights. As we shall explain these cases are not controlling in the instant situation.
In reference to the Federal pre-emption issue the court in the Huffman Case noted (p 332, n):
“This question was not argued in the court of appeals nor mentioned in its opinion and, in view of our position on the merits, it is not discussed here.”
In the Whirls Case it was not discussed and the majority of the court said that the question of unlawful discrimination was not properly before the court. In later litigation arising out of the same basic facts the collectively bargained resolution of the seniority dispute was upheld, the “discrimination” being “in pursuance of the bargaining process and not without some basis.” Britt v. Trailmobile Co. (CCA), 179 F2d 569, 573, certiorari denied, 340 US 820 (71 S Ct 52, 95 L ed 603). The Steele, Howard and Tunstall Cases arose under the railway labor act and plaintiffs were allowed to pursue a judicial remedy on the basis that no administrative remedy was afforded them under that act. The railway labor act is quite different from the LMRA both in administrative and substantive provisions. A holding that a judicial remedy is appropriate merely because of a lack of an administrative remedy is to be differentiated from a situation where, as here, an administrative remedy is denied under'circumstances where the denial amounted to a finding that no administrative or other remedy is to be had under the policy of the act. In the cases arising under the railway labor act, congress failed to give the plaintiffs an administrative remedy but no question of “protection” was involved. The same may be said of United Construction Workers v. Laburnum Construction Corp., 347 US 656 (74 S Ct 833, 98 L ed 1025). ' In the instant case while plaintiffs may not now have an administrative or other remedy it is not merely because congress and the board failed to provide it but because congress and the board in failing tó provide for or allow it made it manifest that none should be had either administratively or judicially.
In the Mount Case the court upheld its jurisdiction on the basis that employees under the railway labor act have a judicial remedy insofar as they dispute the validity of the contract. Here we do not as yet have a contract, but merely rules promulgated in an interim period during which a contract is to be negotiated. True, the court in the Mount Case found that plaintiff’s action was not premature, even though the contract had not as yet been executed. However, in that case unlike the instant one, there was a long, well-defined and controversial history of the specifically proposed contract provision, plaintiff had completely exhausted his intra-union remedies, and no overriding policy of the railway labor act was involved. These are distinctions with a difference sufficient to find that plaintiffs’ action is, among other facts not in their favor, premature.
To be sure, as was said in the Steele Case, a bargaining representative has a statutory duty to bar gain with regard to plaintiffs’ rights (p 204) “without hostile discrimination, fairly, impartially, and in good faith.”
In the instánt case we do hot have the type of bad faith essentially complained of in the Steele and other cases. It is obvious that plaintiffs would feel that they have a cause of action as long as defendants disagree with their contention that former Parker-Wolverine employees are to have a hiring date for seniority purposes of September 27, 1954, and no other date. Mere disagreement under 'the circumstances of this case does not, in our opinion, constitute per se bad faith and breach of statutory duty. The court in the Steele Case went on to say (p 203): •
“This does not mean that the statutory representative of a craft is barred from making contraéis which may have unfavorable effects on some of the members of the craft represented. Variations in the terms of the contract based on differences relevant to the authorized purposes of the contract in conditions to which they are to be applied, such as differences in seniority, the type of work performed, the competence and skill with which it is performed, are within the scope of the bargaining representation of a craft, all of whose members are not identical in their interest or merit.”
Plaintiffs’ argument, in essence, amounts to a coiitention that acquisition of assets and consolidation of operations are not differences relative enough to warrant a modification of any rights which they might have. It may well be that when the contract is signed it will accord a measure of protection to plaintiffs’ alleged rights. It may also be that plaintiffs may claim that the contract unlawfully and arbitrarily discriminates against them. But whether or not the bargaining representative has fulfilled its statutory obligation is yet another issue which is not determinable here and which may or may not be a question under the LMRA, that a State court has jurisdiction to decide. Then too, most of the cases relied on by plaintiffs involve racial discrimination or seniority rights preserved by statute. "While there can and should be no difference between contract, statutory or other types of rights in regard to the statutory duty of the bargaining agent, there can be a difference as to the effect collective bargaining negotiations may have upon them.
Further circumstances work to defeat plaintiffs’ cause of action. Plaintiffs’ charges against defendants under the LMRA were found unsubstantiated by the evidence. It was called to plaintiffs’ attention in the decision of the regional director sent to the attorney for plaintiffs, that plaintiffs had a right to appeal under the LMRA. See 29 USCA 1954 Cum Supp §160; 29 USCA App 1954 Cum Supp, Rules and Regulations, § 102.19. It is evident that plaintiffs have abandoned any further action before the board by way of such an appeal. It has been uniformly held that in cases of this character “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 US 41, 50, 51 (58 S Ct 459, 82 L ed 638); McNish v. American Brass Co., 139 Conn 44 (89 A2d 566), certiorari denied, 344 US 913 (73 S Ct 336, 97 L ed 704).
It also appears that plaintiffs have failed to invoke, let alone exhaust, their intra-union remedies. In addition to being represented by defendant MESA for bargaining purposes, plaintiffs admit to being members thereof.. The constitution and bylaws of MESA, article 4, § 2, provides:
“The N.A.C. shall act in all cases where a decision of any dispute is sought and to interpret and enforce the constitution and bylaws of the M.E.S.A.”
Article 4, § 4, provides:
“In the event of a local violating the constitution of the M.E.S.A., written charges must be sent to the N.A.C. The N.A.C. shall constitute the trial board and act upon said charges.”
The “N.A.C.” is the national administrative committee which is composed of 1 or more delegates from each local. There are other provisions regarding grievances as well as charges against members. There is nothing in the record before us which indicates a real attempt by plaintiffs to adjust their differences within the framework of their union-organization. Plaintiffs argue generally and in answer to cases involving specific governing provisions for exhaustion of union remedies, that “since the * * * constitution and bylaws contain no provision of the character contained in the cited cases, there is no basis whatever for the contention that remedies within the union must be exhausted.”
It suffices to say that the requirement of exhaustion of intra-union remedies is a judicially imposed one not in any way dependent upon the presence .or absence of such a requirement in union governing rules. If it be argued that such a requirement is, in this case, futile, it would logically only be so because plaintiffs while now members of MESA are being discriminated against because of their prior membership in a different union. Such a practice, if in fact engaged in, is obviously within the unfair labor practices set forth in the LMRA, see 29 USCA 1954 Cum Supp §§ 158(a) (3), 158(b)(2); Wallace Corp. v. NLRB, 323 US 248, 254-256 (65 S Ct 238, 89 L ed 216), and therefore outside the jurisdiction of a State court.
As a basis for the jurisdiction of the State court plaintiffs have alleged that the machinery of the board is so slow and cumbersome as to be inadequate to prevent the irreparable injury suffered. In Garner v. Teamsters Chauffeurs & Helpers Local Union No. 776, AFL, supra, the court referred to a similar argument made by the dissenting justice in the Pennsylvania supreme court, but did not thereafter comment upon it. It may thus be inferred that the United States supreme court sub silentio considered the argument untenable. The various opinions of the court in this area leave little doubt but that the consistent application of a uniform Federal policy outweighs the need for speedy preventive relief.
The lower court dissolved the temporary injunction on the ground that the court was without jurisdiction. It refused to dismiss the complaint feeling that plaintiffs had “a law suit.” As jurisdiction over the subject matter is the basis of our decision, we must dismiss the complaint as well as affirm the dissolution of the injunction. It is so ordered, but with no costs allowed.
Carr, C. J., and Smith, Sharpe, Boyles, Reid,. Dethmers, and Kelly, JJ., concurred.
Reversing International Union, UAW-CIO v. Wayne Prosecuting Attorney, 325 Mich 250.—Reporter.
29-USCA 1954 Cum Supp §§ 157,158.—Refoeter. | [
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Dethmers, C. J.
Plaintiffs brought these suits on April 19 and 20, 1951, to recover amounts deducted under Detroit city ordinance No 146-C from the salaries of plaintiffs or their assignors as employees of defendant during that portion of the depression period extending from January 7, 1932, to June 1, 1934. For history and background and construction to be given to that and similar ordinances and resolutions recourse should be had to Detroit Municipal Employees Association v. City of Detroit, 310 Mich 480; Thal v. Detroit Board of Education, 316 Mich 351; Tumey v. City of Detroit, 316 Mich 400; Locke v. City of Detroit, 335 Mich 29. Citing those cases as au thority, plaintiffs say that the deductions were not salary reductions (see contrary holding in Brubaker v. City of Detroit, 282 Mich 309), but withholdings, as they were termed in the Municipal Employees Association and Thai Cases, or, as stated in the Turney and Locke Cases, contributions made by employees under an implied promise by defendant to repay.them when funds became available. The cases at bar were tried together by the court without a jury. Finding as a fact that more than 6 years had elapsed1 from accrual of the causes of action to date of suit, the court held the claims barred by the statute of limitations and entered judgments accordingly of no cause for action in favor of defendant, from which plaintiffs appeal.
It is plaintiffs’ theory that on authority of the 4 above-cited cases there was no obligation on defendant to pay until funds were available, that funds are not legally available until appropriated for that purpose, and that because defendant did not show that any such appropriation had been made more than 6 years before commencement of suit, therefore defendant failed to sustain the burden resting on it of proving when the statute commenced to run and that, hence, the claims should not be held to be barred.
In the Municipal Employees Association and Thai Cases this Court did not pass on the question of when the causes of action accrued and the statute started to run, although in the former it appears that this Court considered the statute to have been running prior to and to have been tolled by a partial payment in 1937. There is no support in those cases for plaintiffs’ theory that the statute would not begin to run until funds became available for payment and that they are not available until appropriated therefor.
In Loche defendant urged that the cause of action accrued and the statute began to run when the with-holdings of salary occurred. Eelying on Tumeyr we held, to the contrary, that the cause of action accrued when funds were available for payment, that defendant had failed to show when funds had become available and, for that reason, we agreed with the finding of fact of the trial court, sitting without a jury, that defendant had failed to sustain the burden resting on it to prove when the statute began to run. There was no holding or language in Loche to the effect that funds could not be said to be available for payment until appropriated for that purpose.
In Turney the plaintiff alleged and testified that, at the time portions of his salary had been withheld he-had been promised by his- superiors that he would be repaid when funds became available for that pur-, pose and that thereafter funds actually became available. Under instructions that plaintiff might not recover unless such agreement had been made, the jury found for the plaintiff and .answered a special question to the effect that funds became available for such payment on or before July 1, 1939. From this, it is clear that plaintiff in that case sustained the burden resting' on him of proving the agreement and the occurrence of events entitling him to recover under its terms. On that state of the record this Court held that the burden of proof rested on defendant to establish its claimed defense under the statute of limitations and went on to say that a mere showing oi favorable balances in defendant’s accounts at a time more than 6 years prior to commencement of suit did not necessarily suffice to establish that those' funds were actually available at such time to pay plaintiff inasmuch as other proofs were to the contrary, particularly testimony that, at that very time, plaintiffs’ requests for payment had been rejected by defendant’s: officials on the ground that funds were not available therefor. The essence of our holding was that availability of funds for such payment was a question of fact, which had been determined by the jury, and that the state of the proofs was not such that we could hold as a matter of law that the jury’s finding as a matter of fact with respect thereto was in error. We did not hold there that availability of funds depended on appropriation therefor.
In the instant cases the court found, as a fact, that funds were available for payment of plaintiffs more than 6 years prior to suit. Does that finding, as plaintiffs contend, run counter to the law of the deci sions in Turney and Locked Not at all, inasmuch as we did not there hold that, as a matter of law, funds were not available and the statute had not begun to run more than 6 years before suit, but, on the contrary, we held that that question was one of fact for the jury or trial court and that we could not hold the finding of fact that funds had not been thus available to be, as a matter of law, erroneous under the proofs in the record. Here the shoe is on the other foot, with the trial court’s finding as a fact that funds were available for payments of plaintiffs more than 6 years before suit. The holdings in Turney and Locke do not require, nor are we willing tq hold, that as a matter of law that finding was wrong under the proofs in this case. Neither do we consider the finding to be, as a matter of fact, against the clear preponderance of the evidence. The pertinent proofs aré as follows: As far back as in 1936 or 1937 defendant had available and unallocated a surplus of $8,000,000, sufficient to pay all salary with-holdings. The surplus had resulted from depression-induced economies and from the ultimate collection of taxes delinquent and unpaid when the salary withholdings occurred. This money defendant used for the construction of a sewage-disposal system, although at that time an outright grant of $9,000,000 from the Federal government and its agreement to purchase $11,000,000 worth of defendant’s bonds, to be paid out of earnings of the sewage-disposal system, would have sufficed to finance the entire project. The auditor general of the city testified that defendant could have caused the surplus to be applied on plaintiffs’ claims. In fact, plaintiffs have contended here that said surplus was made up of delinquent tax collections originally levied and appropriated .to pay the salaries in question and that when collected they constituted a trust fund for payment theréóf which was improperly diverted to sewage-dispos'ál system purposes; and in the cited case at 310 Mich 480, plaintiff association, also a plaintiff herein, alleged the availability of said fund for payment of plaintiffs. Availability of this surplus fund was not shown in the proofs in Loche where it might have been urged as a defense, and in the Tumey, Thai and Municipal Employees Association Cases such showing would have been without avail because suits there were instituted within 6 years thereof. The auditor general also testified to the existence in defendant’s general fund of surpluses approximating $5,000,000 at the end of the fiscal year on June 30, 1943, and again June 30,1944, which would have been sufficient to pay all the salary withholdings and that the city council could have directed payment thereof out of said surpluses, but that the surplus in 1943 was used to effect a tax reduction for the ensuing year and that the surplus in 1944 was used during the next year for capital expenditures. Under such state of the record we cannot say that the court’s finding that funds were available for payment of withheld salaries was against the clear preponderance of the evidence. While we did say in Tumey that the existence of favorable balances would not alone suffice to prove that funds were available to pay plaintiffs, especially when, as there, the plaintiffs’ requests for payment had been rejected at that time on the ground of unavailability of funds, and with good reason because such balances might have been needed for the continued proper functioning of city government, nonetheless when, as here, the proofs established surpluses at the end of fiscal years sufficient to pay plaintiffs’ claims and there is testimony that the surpluses were not essential to defendant’s operations, could have been paid on •plaintiffs’ claims, and were used for tax reduction and capital outlays, we think the existence of such surpluses under such circumstances and when used for such purposes suffices to support the court’s finding of fact of the availability of funds to pay plaintiffs. The cases at bar are thus to be distinguished on the facts from Turney and Locke.
Plaintiffs contend, however, that funds are not legally available to pay them until defendant’s city council has appropriated them for that purpose. That was not the meaning of our decision in Turney when we held that plaintiffs were entitled to repayment when funds were “actually available for payment to plaintiffs” or when “funds became available out of which payment might properly have been made” or “when payment became possible” or “feasible.” By such terms reference was made to the existence of funds which could properly have been appropriated for payment of plaintiffs without impairment or disturbance of governmental operations and services and not merely funds already appropriated for the purpose of paying plaintiffs. Our holding in McVeigh v. City of Jackson, 335 Mich 391, that the city might not, in violation of its charter provisions, expend funds for a purpose not included in the annual budget or any appropriation is scarcely authority for plaintiffs’ contention that without an express appropriation therefor funds cannot be said to be available- within the meaning of the agreement between the parties here. If plaintiffs were correct in their contention that their cause of action would not accrue nor the statute start running until the making of such an appropriation, it would follow that, as a prerequisite to the right to maintain their action at all, the burden would rest on them to allege and prove that such appropriation had been made before suit. Halladay v. Weeks, 127 Mich 363 (89 Am St Rep 478); Van Buskirk v. Kuhns, 164 Cal 472 (129 P 587, 44 LRA NS 710, Ann Cas 1914B, 932). Plaintiffs have neither alleged nor proved such an appropriation.
Plaintiffs also urge, as previously indicated, that the 1937 use for a sewage-disposal system of moneys representing collections of delinquent taxes originally levied and appropriated to pay plaintiffs constituted a conversion and misappropriation of funds held in trust for them. If that were correct, the statute would have started to run at least as of the date thereof, if not before.
Finally, plaintiffs urge that the cause of action accrued and the statute started running on June 26, 1945, when defendant’s city council adopted a resolution which plaintiffs say amounted to a repudiation of defendant’s original promise to pay when funds' became available. We do not read the resolution as a repudiation. If it is, it in nowise alters the fact that, under the agreement, payment was to be made when funds were available, that they became available considerably previous to the resolution and that the cause of action had therefore accrued and the statutes started running before the resolution’s adoption. Furthermore, other official actions of defendant, antedating this resolution and occurring more than 6 years before suit, partook far more of the nature of repudiation sufficient to start the statute running. j
Affirmed, with costs to defendant.
Sharpe, Smith, Reid, Boyles, Kelly, and Carr, JJ., concurred.
Black, J., took no part in the decision of this case.
CL 1948, § 609.13 (Stat Ann 1949 Cum Supp § 27.605) .—Reportee. | [
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Reed, J.
The petitioner, Ben Berman, was convicted on a trial before Honorable John D. Watts, judge of recorder’s court of the city of Detroit, traffic and ordinance division, of a violation of an ordinance of’ the city of Detroit captioned, “Sunday closing — furniture & appliance stores.”
Mr. Berman, defendant in that proceeding, filed a petition for writ of certiorari with the circuit court for Wayne county, to review his conviction. In his. return Judge Watts certified:
“1. That on the 8th day of June, 1954, Billie Mathison did appear before this court and did sign and acknowledge a complaint against one Ben Berman, setting forth that the said Ben Berman, on Sunday,, June 6, 1954, at 7001 Fenkell avenue, Detroit, Michigan, did violate the provisions of ordinance No 781-E of the city of Detroit by keeping open his store,. known as the Union Furniture Company, and offering for sale on Sunday furniture, radios, television sets, and household appliances, and did engage in the business, on said day, of selling the foregoing', and that upon the filing of the said sworn complaint, a summons issued out of this court, ordering the defendant, Ben Berman, to appear in said court on June 9, 1954, to answer said charge. That a copy of the ordinance is hereto attached and marked, exhibit ‘A’, and a copy of the complaint is hereto attached and marked, exhibit ‘B\
“2. That on June 9, 1954, the said Ben Berman appeared before this respondent and was arraigned on the said charge and did plead not guilty, whereupon testimony was taken in the said court. That the people were represented by Nathaniel H. Gold-stick and Lawrence E. Eaton, assistants corporation counsel, and that the petitioner was represented by Aaron Weiswasser as his attorney.
“3. That the people, to maintain the issue upon their part, produced Billie Mathison, who being duly sworn, testified as follows:
“That he is and was a police officer and a member of the Detroit police department. That on Sunday, June 6, 1954, he visited the premises of the petitioner, known as the Union Furniture Store at 7001 Fenkell avenue in the city of Detroit and that the petitioner, Ben Berman, was in the store and in charge thereof; that the store was open for business and was in operation at that time. It was stipulated between counsel that the petitioner was also the owner and operator of 2 other furniture stores; namely, 22261 Fenkell avenue and 13920 Michigan avenue, Dearborn, Michigan, and that said stores are open for business and do conduct business on Saturdays and are closed on Sundays, and that it would not be necessary to provide proof to this effect.
“4. The petitioner was a witness in his own behalf. He testified that the Union Furniture Company was a corporation; that he was the sole owner of the stores of the corporation; that the corporation owned and operated 3 furniture stores located as; follows: 7001 Fenkell avenue, 22261 Fenkell avenue, and 13920 Michigan avenue, Dearborn, Michigan. He testified that he was a conscientious believer in the Sabbath and that he observed the same and that he operated the store at 7001 Fenkell avenue and kept the said store closed on Saturday, the seventh day of the week, and open for business and did engage in business on Sunday, the first day of the week. He further testified that he kept 1 hank account and 1 set of books for all 3 stores and that the profits, if any, for all 3 stores were kept in 1 common account. He also testified that the 2 stores which were open on Saturday and closed on Sunday were operated by persons who were not conscientious believers in Saturday as the Sabbath.
“5. The sole question involved in this case was whether the petitioner, as the sole owner of the stores of the corporation and owner of 1 store that was closed on Saturday and open on Sunday and 2 stores that were open on Saturday and closed on Sunday, could claim as a defense that he was a conscientious believer and as such, authorized to keep his store at 7001 Fenkell avenue open on Sunday for business.”
It further appears from the return of Judge "Watts that on July 7, 1954, the defendant Ben Berman was found guilty and on August 4,1954, to which day the cause was adjourned at the request of counsel, defendant Ben Berman was sentenced to pay a fine of $50 and a stay of sentence was granted to August 25, 1954.
The ordinance in question provides:
“Sec. 1. It shall be unlawful for any person, firm or corporation or anyone acting in behalf of any person, firm or corporation whether owner, proprietor, agent or employees, in the city of Detroit, to conduct or engage in the business of selling, renting, leasing or exchanging furniture, including hut not limited to televisions and radios, and/or household appliances, or to keep open any store, office or other place for the purpose of selling, renting, leasing or exchanging thereof, on the first day of the week commonly called Sunday: Provided, That the foregoing provisions shall not apply to works of necessity and charity, and provided further, That the provisions contained herein shall not be applicable to any persons who conscientiously believes that the seventh day of the week should be observed as the Sabbath and actually refrains from such secular business and/or labor on that day.
“Sec. 2. Any person, firm or corporation or anyone acting in behalf of any person, firm or corporation violating any of the provisions of this ordinance shall upon conviction thereof be subject to a fine of not more than $500 or to imprisonment in the Detroit house of correction for a period of not more, than 90 days, or both such fine and imprisonment in the discretion of the court.”
The circuit judge on the hearing of Berman’s petition for writ of certiorari to review his conviction among other things found the question to be, “Whether or not this defendant, as a matter of fact, entertained a conscientious belief that Saturday should be observed as the Sabbath, and acted upon that conscientious belief.”
In his petition for writ of certiorari, petitioner Berman alleged, “The testimony before the trial court affirmatively establishes that there was no substantial evidence to support the conviction and sentence by the trial court.” Notwithstanding this allegation in his petition, petitioner Berman claims that the circuit court had authority to consider only questions of law, not of fact. We find that the petition for the writ of certiorari alleged that Berman was erroneously convicted and prayed for relief from conviction and sentence and that petitioner opened the question of the sufficiency of the testimony taken in recorder’s court to sustain the conviction.
Petitioner Berman avers in this Court a want of testimony to prove the charge, particularly stressing his allegation that there is no showing that he was not a conscientious believer within the meaning of the ordinance.
The circuit court was acting within the proper limits of its discretion in considering the testimony sufficent to sustain the conviction. The petitioner in effect asked the circuit court to determine that question.
In People v. Bellet, 99 Mich 151 (22 LRA 696, 41 Am St Rep 589), we say at p 156:
“Experience has demonstrated that one day’s rest is requisite for the health of most individuals, and not all individuals possess the power to observe a day of rest of their own volition.”
Historically, the Sabbath day has been known for over 3,000 years as a day of rest; hence, petitioner Berman is incorrect in his contention that it is beyond the police power of the city to enact the ordinance in question for the reason that it does not affect the public health. Best is essential to public health. The enactment of the ordinance in question is a valid exercise of the police power.
Under the home-rule act, cities are authorized to require business places to be closed on Sunday, it being a sanitary measure not in conflict with the general laws of the State. People v. DeRose, 230 Mich 180. See, also, People v. Krotkiewicz, 286 Mich 644. Also, Irishman’s Lot, Inc., v. Secretary of State, 338 Mich 662 (syllabus 5):
“The exercise of police power by prohibition of secular pursuits on Sunday is justified as a sanitary measure as experience has demonstrated that one day’s rest is requisite for the health of most individuals whether or not they have the power to observe a day of rest of their own volition.”
Under the facts as summarized by Recorder’s Judge Watts, it appears that petitioner Berman was the owner of 3 stores, being the sole owner of the stock of the corporation under which the 3 stores were operated. Berman testified that he conscientiously believed that the seventh day of the week should be observed as the Sabbath and that he operated the store at 7001 Fenkell avenue and kept that store closed on Saturday, but open for business on Sunday, but that he kept the other 2 stores open on Saturday; further, that he kept 1 bank account and 1 set of books for all 3 stores and that the profits, if any, of all 3 stores were kept in 1 common account.
The proviso in section 1 of the ordinance under which Berman was convicted contained the following:
“That the provisions contained herein shall not be applicable to any persons who conscientiously believes that the seventh day of the week should be observed as the Sabbath and actually refrains from such secular business and/or labor on that day.”
We cannot assume that the city in enacting this ordinance intended that the conscientious believer was to be at liberty to engage in the furniture store business on both Saturday and Sunday. It is clear that petitioner Berman engaged in furniture store business on both Saturday and Sunday. He must be held to have violated the ordinance. His conviction is sustained. The circuit court on the hearing on the writ of certiorari ordered that the writ of certiorari be dismissed and the sentence of the recorder’s court, traffic and ordinance division, affirmed. The circuit court held that the ordinance under consideration is a valid exercise of the police power of the city and dismissed the writ of certiorari.
The orders of the circuit court appealed from are affirmed. The case is remanded to the circuit court with instruction to remand the case to the recorder’s court, traffic and ordinance division, for further action.
Dethmers, C. J., and Sharpe, Smith, Boyles, Kelly, and Carr, JJ., concurred.
Butzel, J., did not sit.
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Btjtzel, J.
LaVone Medcoff and Mack Myers were found guilty of aiding, assisting and abetting in keeping and maintaining a gambling room, and knowingly assisting in keeping and occupying a common gambling house at 830-1/2 Leith street in the city of Flint, Michigan, contrary to CL 1948, § 750.-303 (Stat Ann 1954 Rev § 28.535); CL 1948, § 750.302 (Stat Ann 1954 Rev § 28.534). They have appealed from a denial of their motion for new trial and fundamentally raise but 1 question. The record points overwhelmingly to their guilt and it is not claimed that the verdict of the jury is against the great weight of the evidence.
On the initial day of the 3-day trial before a jury the first 3 witnesses for the State seemed to be suffering from amnesia of some sort. One witness, who lost the money he had in his pocket as well as the proceeds from cashing his pay check and who summoned the police, claimed he could not positively identify the defendants. The other 2 gave testimony of like purport. Another witness cashed his pay check at the gambling house. The judge was so exasperated that he ordered their arrest on grounds of perjury after they had finished their testimony. The trial continued with the testimony of other persons apprehended in the raid some of whom had their bail bonds furnished and fines paid by unidentified persons. It is evident that the court had to cope with a very difficult situation.
On the second day of the trial' one of defendants’ attorneys, not among those who now represent them on appeal, stated that he had received information from a “very reliable source” and “from a member of the jury” that some members of the jury knew of the court’s commitment of the 3 witnesses for perjury. He was of the opinion that they had probably obtained this information from the local newspaper. He asked that a mistrial be declared because of possible prejudice to the defendants. The court denied the motion and after the attorney said that it was the duty of the court to examine the jurors, the court stated:
“I will take care of it at the proper time.”
At the conclusion of the testimony of Marvin Anderson, in the above-entitled cause, and after a recess had been announced, and all persons excluded from the courtroom, other than the court reporter and jury, the following occurred :
“The Court: There has been a serious accusation made against some members of this jury in this matter. It has been reported some members of this jury have been talking about this case in the hall, some member of this jury has talked to Louis Mc-Gregor relative to this case.
“Juror No 11: I talked with Louis McGregor this morning, but not concerning this case.
“The Court (to juror): You did not say anything concerning the case?
“Juror No 11: I did not say concerning the case.
“The Court: If he said that he is wrong?
“The Juror: I did not say anything about the case.
“The Court: I warned you people in the first place you were not to talk with the attorneys or anybody else here. I don’t know why you cannot follow your instructions. It has been reported that you talked to Mr. McGregor; Mr. McGregor reported you discussed this case with him.
“The Juror: I remember I said something of the ease; I did not talk much about it.
“The Court: How much did you discuss about it?
“The Juror: He asked me what kind of a case it was. I said a gambling case.
“The Court: That is all you said?
“The Juror: Yes.
“The Court: You are sure of it?
“The Juror: Yes.
“The Court: None of the rest of you discussed this matter at all with anyone?
“(Jurors answer ‘No.’)
“The Court: You are sure that is the only thing you said tó Mr. McGregor?
“Juror No 11: That is all this morning.
“The Court: You did not say anything about any matters that occurred here or’any matters that you heard here ?
“The Juror: No, sir.
“The Court: All right. Now, remember, I told you you were not to discuss this matter with anyone, or allow anyone to discuss it with you, or read anything in the newspapers or anything else. That is final. In other words, of course, you know the case' is decided upon testimony given upon the witness stand, and any conversation' with anyone else you are hot supposed to receive, any information except what goes on from the witness stand. This is the first time, in Flint that there has been an accusation concerning any errors of that kind in this court. It is for the court’s protection in the matter.
“Juror No 3: We are not supposed to say anything about it to our families?
“The Court: Do not even discuss it among yourselves. Before discussing any case you are sitting on, wait until you get all through, and you just, decide it-upon what is .here.”
The relationship, if any, between this inquiry and the previous motion for mistrial is not at all clear.. However, it is a fact that neither the defendants nor their counsel nor the prosecuting attorney were present during the proceeding. It is not apparent whether the exclusion from the courtroom of “all persons” meant the public as well, but such is not pertinent to the basis of our decision.
It is counsels’ contention that defendants’ constitutional right to a “public trial” was abridged by the court’s investigation of the jury. While fundamental to a criminal proceeding the “public trial” .guarantee is concerned with the presence of the public in general and should not be confused in specific application with the right to trial by jury and its derivative rights such as the presence of the .accused. The accused is not necessarily the “public” referred to but his presence is required by other rights secured to him in the same constitutional provision. If the order of exclusion included the public in this case, and apparently it did, it could be that the “public trial” guarantee, would be an issue. However, counsels’ argument revolves solely around the absence of the defendants. While, because of their common and fundamental end, the 2 rights may in some cases overlap, we do not consider the right to a “public trial” as being involved in this case and counsels’ rather unique argument in that regard is not the basis for our decision. Rather, we are concerned with the right of trial by jury and its concomitant, the right of an accused to be present at such trial.
The Constitution of the State of Michigan (1908), .art 2, § 19, guarantees to an accused in every ■criminal prosecution the right of a trial by an impartial jury. By statute, CL 1948, § 768.3 (Stat Ann 1954 Rev § 28.1026):
“No person indicted for a felony shall he tried unless personally present during the trial; persons indicted or complained against for misdemeanors, may, at their own request, through an attorney, duly authorized for that purpose, by leave of the court,, be put on trial in their absence.”
Defendants herein were tried and convicted of misdemeanors. While some jurisdictions have distinguished between one accused of a felony or capital crime and one accused of a misdemeanor or non-capital crime for purposes of this right, we think the fair implication of this statute is that a misdemeanant punishable by a maximum sentence of 2 years in the State prison, as well as a felon, is entitled to be present. The aforementioned right to trial by an impartial jury, from which the right to be present is derived, applies to “every criminal prosecution.”
The United States supreme court in Lewis v. United States, 146 US 370 (13 S Ct 136, 36 L ed 1011), a case upholding the right of a defendant to be present when jurors are challenged, said (p 372):
“A leading principle that pervades the entire law of criminal procedure is that, after indictment found,, nothing shall be done in the absence of the prisoner.”
In Hopt v. Utah, 110 US 574 (4 S Ct 202, 28 L ed 262), the court, under a statute of the territory of Utah similar to that in Michigan, above quoted, condemned the practice of trying challenges for bias of juror out of the presence of the accused, saying (p 578) :
“The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defence may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time the work of empanel-ling the jury begins.”
Later decisions of the supreme court may have limited somewhat certain statements made in the Hopt and Lewis Cases, supra, see Howard v. Kentucky, 200 US 164 (26 S Ct 189, 50 L ed 421); Diaz v. United States, 223 US 442 (32 S Ct 250, 56 L ed 500, Ann Cas 1913C, 1138); Frank v. Mangum, 237 US 309 (35 S Ct 582, 59 L ed 969), but they have been concerned with “due process” principles and have recognized the distinction which must be drawn between common-law requirements of trial by jury .and that which the States might enact or countenance without contravening the 14th Amendment “due process” requirement. In Snyder v. Massachusetts, 291 US 97 (54 S Ct 330, 78 L ed 674, 90 ALE 575), while majority and dissent disagreed as to whether “due process” required the presence of the accused at a view by the jury of the scene of the crime, both agreed that defendants have the right to be personally present at every stage of the trial where their substantial rights may be affected by the proceedings and where their presence relates to the fullness ■of their opportunity to defend against the charge.
To be sure when considering what is the “trial” for purposes of this question we can exclude formal and preliminary matters or matters occurring after “the hearing on the merits or rendition of the verdict, .as well as other matters. See Snyder v. Massachusetts, supra; generally, 26 ALR2d 762, 770; 150 ALR 764; 144 ALR 199; 23 ALR2d 456; 96 ALR 508, 515; 70 ALR 1072. This Court has held that the accused need not be present when the jury, after having departed to deliberate, returns and requests a reitera tion of instructions, People v. LaMunion, 64 Mich 709, or testimony given during the trial, People v. Carey, 125 Mich 535, or asks whether certain testimony had been stricken, People v. Jaskulski, 236-Mich 237; but cf., People v. Burkhart, 165 Mich 240. A defendant’s voluntary absence at the rendition of' the verdict does not vitiate that verdict, Frey v. Calhoun Circuit Judge, 107 Mich 130, nor is his absence-when a panel of 12 jurors was sworn (only 1 of which was on the jury which finally heard the case)r prejudicial. People v. Kregger, 335 Mich 457. Apparently the presence of the accused is not required at a view taken by the jury. People v. Raider, 256-Mich 131; People v. Kasem, 230 Mich 278. It would also seem that an accused may waive his right to accompany the jury to a view. People v. Auerbach. 176 Mich 23, 47 (Ann Cas 1915B, 557). We have indicated that failure of counsel, with knowledge, to object at the time is a pertinent consideration. See People v. Raider, supra; People v. Kasem, supra; People v. Carey, supra; People v. Kregger, supra. It may be noted that in the instant case the record presents no question of waiver or such action of counsel, hence, State v. Bragdon, 136 Minn 348 (162 NW 465), may be distinguished.
However, nothing in the nature of evidence should be taken in the absence of the accused. People v. Hull, 86 Mich 449, 466; People v. Auerbach, supra. While in particular instances we may have affirmed the convictions, we have considered as bad practice, proceedings had in the absence of the accused. People v. Jaskulski, supra; People v. Kasem, supra. There is involved in the instant case the right of an accused to be present at a proceeding where the court considers existence or nonexistence of misconduct on the part of the jurors. It goes without saying that the right to a . trial by an impartial jury is X most fundamental one. The right of the accused to be present at all stages of the trial where his substantial rights might be affected is an equally fundamental one. Misconduct on the part of a juror during the progress of a trial is presumptively .a ground for a new trial. Cooper v. Carr, 161 Mich 405; cf., In re Ascher, 130 Mich 540 (57 LRA 806). Courts have held that the presence of the accused is required when jurors are being examined as to their qualifications. State v. Thomas, 128 La 813 (55 So 415); State v. Smith, 90 Mo 37 (1 SW 753 [as State v. Crockett], 59 Am Rep 4); State v. Martin, 120 W Va 229 (197 SE 727). The making or trying of challenges to jurors is an essential part of the trial and requires the presence of the accused. Lewis v. United States, supra; Hopt v. United States, supra. It would seem that the examination of a jury during the progress of the trial as to alleged misconduct affects a defendant’s substantial rights to a trial by an impartial jury at least as much, if not more, than does an examination for qualifications*or the making of challenges. All concern the impartiality of the jury which cannot be considered a preliminary, formal or inconsequential matter.
We recognize that all that transpired between judge and jurors as well'as the court’s conclusion that there had been no misconduct is in the record before us. Therefore, it is argued that defendants have shown no prejudice. However, the abrogation of defendants’ right to be present is not determined from the result and review thereof of the court’s inquiry but rather from the mere fact that during the inquiry defendants were not given an opportunity to exercise those privileges which their right to be present affords them. Where such fundamental rights are: denied, the guilt or innocence of the accused is not concerned and neither party is put to the burden of showing actual injury or prejudice or the lack of-it. Injury is conclusively pre sumed. Cf., People v. Micalizzi, 223 Mich. 580; People v. Murray, 89 Mich 276, 290 (14 LRA 809). In the latter case, we said:
“Neither is this case an authority for what was done in Murray’s case. The court did not order the courtroom to be cleared of spectators, but the lobby outside. There is nothing in the facts of that case which assimilate in any degree to the trial of Murray. Here no violence is shown, no disorderly conduct, no violent or disgraceful action on the part of Murray, which tended to lessen the dignity of the court, or bring the administration of justice into disrepute.
“I cannot accede to the correctness of the proposition intimated in that case that, if a public trial has not been accorded to the accused, the burden is upon him to show that actual injury has been suffered by a deprivation of his constitutional right. On the contrary, when he shows that his constitutional right has been violated, the law conclusively presumes that he has suffered an actual injury. I go further, and say that the whole body politic suffers an actual injury when a constitutional safeguard erected to protect the rights of citizens has been violated in the person of the humblest or meanest citizen of the State. The Constitution does not stop to inquire of what the person has been accused or what crime he has perpetrated; but it accords to all, without question, a fair, impartial, and public trial.”
Nor is this a matter which can be disposed of under the statute which permits affirmance of criminal judgments in spite of certain errors, where there has been no miscarriage of justice. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096). As we have interpreted defendants’ right to be present when the court is inquiring into possible misconduct of a juror, we cannot justify affirmance on the ground that it is a matter of “pleading or procedure”’ to which the statute refers. .Though we may think that the record more than justifies the convictions obtained we cannot condone or countenance the practice here indulged.
Accordingly, while we do not discharge defendants as their counsel ask, we reverse the convictions and order a new trial. People v. Murray, supra, at 292.
Caer, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred.
See Const 1908, art 2, § 19.—Beporter.
People v. Kerrigan, 73 Cal 222 (14 P 849), in which' action was taken on behalf of defendant, as well as to preserve order.—Bepoetee. | [
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Boyles, J.
The bill of complaint in this case was filed by Kenneth A. Weller against Irene Weller, his divorced wife, to quiet title in certain real estate in Presque Isle county and for a decree declaring plaintiff to be the owner of said lands. Prom a decree granting plaintiff the relief prayed for upon condition that he pay defendant a certain sum of money, the defendant appeals and plaintiff cross-appeals.
Plaintiff and defendant were husband and wife and had been married about 15 years when plaintiff, in June, 1943, entered into a contract in his own name for the purchase of certain real estate in Black Lake- Bluffs subdivision, Presque Isle county, which is the subject matter of this suit. Soon thereafter Irene filed a bill of complaint against Kenneth A. Weller for divorce. In November, 1943, the parties entered into a property settlement, reciting that a divorce proceeding was pending, and that Kenneth was to retain, as his separate property, his vendee’s interest in the aforesaid land contract. In said suit a decree of divorce was granted to Irene Weller by a decree entered in the Wayne circuit court March 29, 1944, which affirmed and approved said property settlement. In February, 1945, approximately 1 year after the divorce decree became final, plaintiff married a second wife, Adeline. He testified that he lived with her but 9 days. Soon after the separation said second wife filed a bill for divorce and a decree-was entered in that ■ suit granting her divorce as prayed for, which apparently became final in 1949.. Plaintiff herein testified in the instant case that he-had been afraid that the court in that divorce case-would award to his second wife a larger share of his property than he thought proper; that in order to-avoid this, and to conceal a part of his property from the court in which the second divorce case was pending, he had planned and executed the following-scheme and that in March or June, 1946, the exact date being in dispute, the land contract vendors deeded, at plaintiff’s request, said real estate in PresqueIsle county to his former wife, Irene, the defendant herein, and that either he or Irene gave them back a mortgage for the balance that remained due on the contract. Both instruments were antedated to January 2, 1945, which date was shortly prior to plaintiff’s marriage to his' second wife. The deed was put on record. Plaintiff claims that the defendant Irene also executed a warranty deed of the property baek to him at about the same time, which was dated January 3, 1946, but whether or not it was ever delivered is one of the facts in dispute in the case. It was handed to Irene and she pnt it in a box where she took care of plaintiff’s papers. Defendant herein was fully aware of plaintiff’s scheme and his reason for deeding said real estate to her. Plaintiff had lived with her from time to time after they were divorced and she testified that she desired to assist him in his efforts to conceal his property from the Wayne county court in which his divorce case with Adeline was then pending; that she had an understanding with plaintiff at the time that they would be remarried after the second marriage was dissolved. Plaintiff changed his employment frequently and apparently on numerous occasions when things were not going well for him he came to defendant’s home, because she was steadily employed and would provide him with board and shelter. This occurred both before and after plaintiff’s second marriage and until 1949.
Plaintiff and defendant Irene had 1 living child born of their marriage who lived with defendant Irene. Plaintiff had been ordered to pay the friend of the court $10 per week for the support and maintenance of this child. Defendant testified that she received only $550 from plaintiff for the child’s support and that he was in arrears $2,132.62. Defendant had, however, signed a receipt, which was filed in the office of the friend of the court, dated June 13, 1947, wherein she acknowledged receipt of all support money due for the period March 29,1944, to May 26, 1947. Defendant now contends, in the instant case, that she received only the $550 but that she ■signed the receipt because plaintiff had deeded her the property and because she was at the time still in love with him and understood they were to be remarried. Defendant further testified that later certain events transpired which made her doubtful of plaintiff’s intention to remarry her; that in the fall of 1949 she asked him when the marriage would take place, to which, he replied that there would be none. Defendant Irene thereupon ordered him to leave her home and he has not lived there since.
The bill of complaint by which this suit was commenced was filed by him on July 26, 1950, alleging that the defendant had removed her aforesaid deed (to him) from his safety box in his cabin on said property, refused to let him have it, and asked that the defendant be compelled to deliver up to him said deed to the Presque Isle county property or to execute a conveyance of the same to him. Issue was joined and the case was tried November 30, 1950, but an opinion was not filed until January 31, 1953. The trial judge who heard the case died before the entry of a decree and the decree from which these appeals are taken was entered by his successor.
A reading of the record discloses that the opinion of the trial judge was well supported by the evidence and there would seem to be no reason to disturb his conclusions from the facts. He said:
“Admittedly, it was to place the property involved in this suit beyond the reach of plaintiff’s second wife and the Wayne county court, that the title was placed in the name of the defendant.
“Now the defendant objects to reconveying the property to the plaintiff until he performs some of his obligations toward her. She claims that she expended upon the property itself in the way of payments, taxes and in one way or another, the sum of $1,699.27. The plaintiff admits that she so expended the sum of $505.05 in that way, but denies that she expended any more. The court is convinced that the defendant’s figures in this respect are correct, and that she has coming from the plaintiff for money which she expended upon the property the sum of $1,699.27.
“There is also the matter of alimony which the plaintiff has failed to pay, the defendant claiming that the total amount of alimony which the plaintiff should have paid her and did not pay, amounts to-$2,132.62. Of this amount, however, she acknowledged payments to the friend of the court in Detroit of the sum of $1,640, and while the court does not believe it was ever really paid, it is not thought that she should recover that amount, but it is the opinion of the court that she should recover the balance of $492.62 on that account.
“Thus it appears to the court that plaintiff is entitled to a reconveyance of his property upon payment by him to the defendant of the sum of $2,191.89' in all.
“A decree carrying out the terms outlined in this-opinion may be prepared and presented.”
The decree which was entered provides that the-plaintiff shall have a reconveyance from the defendant of the title to the real estate in Presque Isle-county upon payment by the plaintiff to her of the sum of $2,761.96; and that upon payment thereof the defendant execute a proper deed of conveyance of said real estate to the plaintiff. The decree, filed December 10, 1954, provides that the plaintiff shall have 6 months from the date of the decree in which to pay, and in default of such payment that the plaintiff be forever barred from making any claim as against the defendant as to said premises. Other-provisions of said decree not material to the question here involved need not be referred to.
The defendant-appellant’s first claim for reversal is that the plaintiff is not entitled to any relief in a court of equity. With that claim we are in full accord.
The record here shows quite plainly that these-parties planned to conceal from plaintiff’s second wife and from the court in her divorce case the fact that he had an interest in the subdivision property in Presque Isle county. In order to effectuate this fraud on the court in the divorce case, the plaintiff and defendant antedated the deed from the vendors to her, and also the mortgage to them for the balance of the purchase price, for the purpose of indicating that this transaction took place before the plaintiff’s second marriage. For an indication of the fraud we might need go no further than the pleadings filed in the instant case. Plaintiff avers, in his bill of complaint :
“That plaintiff was harassed by the second divorce proceedings and was fearful that he would be stripped of all his property, and feeling that he would protect himself, by agreement with defendant herein, plaintiff and defendant arranged with the vendors in aforesaid contract, wherein vendors deeded the aforedescribed lands to defendant herein, and defendant executed a deed thereto to plaintiff.”
The defendant’s answer admits:
“In answer to paragraph 5, this defendant, not having specific information as to the extent of how plaintiff was harassed by the second divorce proceedings, neither admits nor denies the allegations therein contained, but does admit that by agreement with the plaintiff and the vendors your defendant would assume a mortgage for the unpaid balance due on said above-described lands and that the vendors would deed said property to your defendant and that said agreement was carried into effect.”
Furthermore, plaintiff-appellee’s brief filed here states:
“Panicked by the prospect of losing all of his property to the second wife, and after consultation with legal counsel, plaintiff herein arranged for the conveyance of the property involved herein directly from the land contract vendors to the defendant, Irene Weller, with her full knowledge and participation.”
The fundamental law controlling decision in the instant case was laid down by Chief Justice Cooley in 1877, as follows:
“Courts cannot occupy themselves with adjusting equities between wrongdoers. When parties associate for an unlawful purpose they must calculate in advance the probabilities of bad faith towards ehch other, and must expect no assistance of the law against each other’s frauds.” Gage v. Gage, 36 Mich 229, 231.
“Equity will not lend its assistance to one who participates in a supposed fraud upon another for his own gain when it afterwards appears that he himself was the defrauded party.” Dakin v. Rumsey (syllabus), 104 Mich.636.
“When one conveys his property to another for the purpose of avoiding anticipated claims against him, he is not in position to invoke the aid of a court of equity to obtain a reconveyance. He does not come into court with clean hands, and equity leaves him to lie in the bed of his own making.” Poppe v. Popper 114 Mich 649, 651 (68 Am St Rep 503).
“The proposition is universal that no action arises, in equity or at law, from an illegal contract; no suit may be maintained .for its specific performance, or to recover the property agreed to be sold or delivered, or the money agreed to be paid, or damages for its violation.” Leland v. Ford (syllabus), 245 Mich 599.
In Van Allsburg v. Kooyers, 250 Mich 518, 521, the Court said:
“The defendant voluntarily conveyed this land to his brother in 1898. His purpose in doing so (to avoid the claims of his creditors) would prevent him from compelling a reconveyance to himself after his then creditors had been satisfied.”.
There may be different circumstances as a result ■of which some cases must be decided by the facts. In White Star Refining Co. v. Holly Lumber & Supply Co., 271 Mich 662; and Price v. Nellist, 316 Mich 418, relied on by appellee, decisions were controlled by circumstances which distinguish those cases from the case at bar. They do not control decision in the instant case.
Plaintiff now tries to justify his actions by claiming that it was merely a fraud perpetrated on a third party (his second wife), wherefore he cannot be precluded from recovering as against the defendant, who was the other party directly participating in the perpetration of the fraud. We have recently held to the contrary. In Cook v. Wolverine Stockyards Co., 344 Mich 207 (decided December 28, 1955), the plaintiffs sued the defendant to recover on a contract ■entered into by them for the purpose of evading a statute which would require the defendant to obtain a certificate from the public service commission to transport the livestock of another for hire, and to pay the State certain fees and mileage for use of the highways for that purpose. They entered into such a contract, against public policy, whereby the defendant could claim, fraudulently, to be the owner of plaintiffs’ livestock, and whereby the defendant would be transporting its own cattle, but not for hire (the State being the “third party” defrauded, in that case). We held that the Court would leave the parties where they had placed themselves.
There can be no question but that the sole purpose of the plaintiff in having the vendors deed to the defendant the Presque Isle county real estate which he held as vendee, was to conceal from the court, in the divorce case involving his second wife, the fact that he had an interest in this real estate. This is made plainly evident by the fact that both the deed and the mortgage back to the vendors for the balance of the purchase price were antedated to show that these instruments were executed shortly prior to his ■second marriage, thereby seeking to show, falsely, that he had no interest in this real estate during coverture. This was a fraud on the court which “heard his second divorce case. Lantinga v. Lantinga, 318 Mich 78; Berg v. Berg, 336 Mich 284; Allen v. Allen, 341 Mich 543. Under such circumstances, ■a court of equity will not lend its aid to the parties to the fraud. They will be left by the Court in the •situation in which they have placed themselves.
The defendant, not having filed a cross bill in the -case, her claim for affirmative relief will not be considered here. Court Rule No 61 (1945); Sabbe v. County of Wayne, 322 Mich 501, 505.
A decree will be entered in this Court setting aside the decree entered in the trial court and dismissing the bill of complaint, without costs.
Dethmers, C. J., and Sharpe, Smith, Reid, Kelly, Carr, and Black, JJ., concurred.
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Dethmers, J.
A jury returned verdict for plaintiffs. The court entered judgment non obstante veredicto for defendant. We granted plaintiffs leave to appeal in the nature of mandamus. The case has come up on a settled record without bill of exceptions or settled case, defendant, as appellee, thus having been left with the alternative of assuming the burden of procuring an expensive transcript of an extended trial and, as cross appellant, preparing and noticing a proposed bill of exceptions in order to urge here the other grounds it advanced below in support of its motions for new trial and judgment non obstante veredicto, or waiving consideration thereof here and running the risk of reversal and entry of judgment on the verdict without determination of its other asserted grounds. Peters v. Aetna Life Ins. Co., 282 Mich 426. The judgment non obstante veredicto was a final judgment which disposed of the case, and for review of which writ of error or, under present court rules which have left the character of the remedy of mandamus unchanged (Quail v. Cole, 260 Mich 642), general appeal would lie and afford the adequate and proper remedy. We are now satisfied, therefore, that leave to appeal in the nature of mandamus was improvi dently granted. Cattermole v. Ionia Circuit Judge, 136 Mich. 274; Skutt v. Kent Circuit Judge, 136 Mich 477; City of Flint v. Genesee Circuit Judge, 146 Mich 439; Hartz v. Wayne Circuit Judge, 164 Mich 35; Kingsley v. Kent Circuit Judge, 171 Mich 305; Trumbull Motor Car Co. v. Wayne Circuit Judge, 189 Mich 554; Lapham v. Wayne Circuit Judge, 243 Mich 154.
Onr granting of leave having occasioned the expense of this appeal and anticipating the possibility of application for leave to take a delayed general appeal on the same limited assignment of errors here presented if they be not now determined, we deem it appropriate to observe that we do not consider them well taken. Plaintiffs’ declaration planted their right to recover on a series of transactions, all of which occurred under or in connection with an alleged agreement between plaintiff husband and defendant, by which the former agreed to buy and sell cattle for defendant but to take title in his own name for the purpose of evading the statutes, Michigan public service commission rules and taxes applicable to his transportation thereof if the truth of defendant’s ownership were disclosed; also set up in the declaration as in furtherance of such scheme and as partial basis of plaintiffs’ claimed right to recover, was a chattel mortgage allegedly given by plaintiffs to defendant. The trial court held that an illegal contract, against public policy, had been pleaded and that under such circumstances courts will not enforce it or grant relief thereunder but leave the parties where they have placed themselves. In this the court was correct. Richardson v. Buhl, 77 Mich 632 (6 LRA 457); Cashin v. Pliter, 168 Mich 386 (Ann Cas 1913C, 697); Mulliken v. Naph-Sol Refining Co., 302 Mich 410; Day v. Chamberlain, 223 Mich 278; Dettloff v. Hammond, Standish & Co., 195 Mich 117 (14 NCCA 901); Turner v. Schmidt Brewing Co., 278 Mich 464. This is not, as plaintiffs urge, a situation, as in Eastern Distributing Corp. v. Lightstone, 257 Mich 184, in which we denied recovery under a contract consisting of several promises based on several considerations because some were illegal, but allowed recovery under the common counts on those which were legal because they were severable from the rest. Here all the transactions are alleged as a part and in pursuance of the illegal purpose and contract and all are tainted with the illegality. When the trial court pointed this out plaintiffs sought to amend their declaration to eliminate the allegations disclosing the illegality of the contract. While the meager record does not contain the proposed amended declaration, it is evident that the evidence required to support the original declaration and that necessary to prove the amended one would not be the same. Thus, the amendment represented a change in ■ plaintiffs’ theory and. amounted to introducing a' new cause of action Stowe v. May, 247 Mich 566. The matter of permitting amendments rests entirely in the sound discretion of the trial court and here it did not abuse it in refusing the amendment. Ogden v. Moore, 95 Mich 290; Kerr v. City of Detroit, 255 Mich 446, and cases therein cited. Defendant’s motion for judgment non. obstante veredicto was timely made.
Appeal dismissed. Costs to defendant.
Butzel, Sharpe, Reid, and Kelly, JJ., concurred, with Dethmebs, J.
Carr, C. J., concurred in affirmance on the merits. | [
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Reid, J.
Plaintiff board filed its bill to enjoin the defendants from obstruction of a road in Bingham township, Leelanau county, claimed by plaintiff board to be a public highway. Defendants deny that the road in question is a public highway but claim that it is a private lane across the lands of defendants. Prom a decree for plaintiff, defendants appeal.
No direct grant to the public authorities of the lands for public highway purposes was ever made. Plaintiff board counts on CL 1948, §221.20 (Stat Ann § 9.21), as a foundation of the rights of plaintiff:
“All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width, and where they are situated on section or quarter section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be 2 rods in width on each side of such lines.”
Plaintiff claims 5 separate periods of building, maintenance and repair of the road over a greater span of years than required by the statute. We briefly illustrate the nature of these 5 periods. The first labor claimed by plaintiff to have been performed by the public authorities on the road would be sometime between 1913 and 1923. Perry Bindley, who was Bingham township supervisor in 1931, testified :
“I first recall this road a long time ago. I couldn’t give you the exact date that we had the commissioner open it — the township. I would say 30 or 35 or maybe 40 years ago. At that time it was opened by the township^ road commission under instructions of the township board. The township board ordered the commissioner to open it at that time. It was then opened to the lake. The Bunek family was living there at that time. * * * The road was opened, the township spent money to open the road. * * * I recall it was opened.”
Mr. Bindley fails to say that he himself saw the work done on this particular stretch of the road, and his reference to the date is so vague that it would be difficult to place reliance upon his testimony. Defendant Joseph Bunek testified:
“During the time from 1914 to 1931, I never saw or had any indication or reason to believe that there had been any road equipment along my lane.”
There is nothing in the record to indicate that the public authorities maintained the road in any fit condition for travel as other roads from the time indicated by Mr. Lindley until plaintiff’s claimed second work done by the public referred to by plaintiff as having occurred in 1924, and as indicated by plaintiff’s witness Grohinski, who testified:
“I was hired by David Priest at one time to move a fence back. He was overseer as best I can remember in the old style. There was some stuff in closer by the lake, and they were arguing about a fence. He was ordered by the township highway commissioner to hire somebody, and Mr. Priest hired me. We moved up the line stones about a mile and a half from the lake, and we staked them out as straight as we could; and we went straight down to the lake so people could see where the line was to the best of our knowledge. * * * We cut some brush and stumps. We put them stakes and old stones in there. * * * That was about 1924.”
There is nothing shown in the testimony that the public did anything further after 1924 until sometime about 1935 or 1936 (the third period of work claimed by plaintiff) which seems to be the work referred to by witness Bartunek, hereinafter cited. At this third period there is no proof of any act done by public authorities on this road in question as a public road, and for public benefit. It was only work done by a public officer but at the request and for the benefit of defendants, the owners of the land.
The fourth period, according to plaintiff’s claim, was in 1945. Witness Behm testified he put gravel in a hole in the road, and patched up the soft spots. Witness Strong testified to some grading by the public in 1935, evidently referring to the occasion testified to by witness Bartunek. Also, witness Strong testified to work done in 1945 by the public. The preponderance of evidence shows that the public did no work on the road from 1945 to about 1951.
The fifth occasion claimed by plaintiff was somewhere about the year 1951 when the public took over and for the first time, put the road in question into a condition somewhat similar to other public roads. Work was done by public authorities for public benefit in 1951 but of course.the time since elapsed is short of a 10-year period, and, hence, fails to establish the plaintiff’s claim under the hereinbefore quoted statute.
Plaintiff’s showing amounts to no more than this, that at 2 or 3 periods some effort was made to transform the Bunek road into a public highway, but the efforts were not followed by exclusive and continued use by public authority; on the contrary, the public authorities after each such effort apparently ceased to pay attention to the lane or road in question for several years.
Competent testimony was produced by defendants to establish defendants’ claim as to the road. Defendants’ parcel of land lies on the east shore of Lake Leelanau described as government lot 4, section 1, town 29 north, range 12 west. The property lies between Lake Leelanau on the west and a blacktopped road (county road 641) on the east. The section line between sections 1 and 12 seems to be the southerly boundary line of the property of defendants. Defendant Joseph and his brothers and sisters were raised on that farm. Defendant Joseph has been on the farm since 1914 with an interval of army service. Por as long as defendant Bunek and his sisters can remember, there was a passageway from county road 641 westward to the shore of Lake Leelanau along the southern extremity of the Bunek property and known as Bunek lane, which was about 400 feet long. For many years the neighbors and friends of the Buneks came from their neighboring-farms to the waters of Lake Leelanau, using Bunek road or lane as the means of access from the county road 641 to the lake. This was done with the knowledge and consent of the Buneks, both the present defendant Joseph and his father who owned the farm before him. In the earlier years when defendant Joseph Bunek and his sister Rose Dechow tended their father’s cattle, driving them along the lane in question to the lake for water, the lane itself was marked by fences.
The first time after 1924 that the county highway department claims to have done any work on the Bunek road in dispute was about 1935, when the county road commission’s superintendent Frank Bartunek was grading county road 641, and he testified :
“We had this surplus dirt, see, and I asked Joe if he had any place to put it, and he said ‘Put it down here,’ so that is where we put it.
“Q. And is that on the road in dispute, that we have been talking about here?
“A. Yes.
“Q. When yon put in the fill dirt, did you also put gravel on top of it?
“A. No. It was already gravel mixed.”
This seems to be the same occasion as testified to by Mrs. Dechow, sister of defendant Joseph, as follows :
“I recall in 1935 and 1936 when the WPA men and equipment came and rebuilt this road. They did that to all the people’s driveways and approaches and leveled off where they had to do that.”
In 1951 some trouble arose about transient orchard workers from neighboring farms coming to the lake shore for picnics and parties; also, the plaintiff com mission erected a sign indicating, “public beach.” Joseph Bunek and one Skiba, the owner of the land immediately south of the Bunek property, erected a no trespassing sign and barricade across the east end of the lane or roadway in question. This resulted in their being arrested and tried for barricading the road. The jury disagreed and the case was dropped. Thereafter, in 1953, the road commission began this suit. In justification of its claim that the road in question is a public highway, plaintiff offered in evidence a map dated 1885 of Bingham township roads, which indicated as a highway, the road or lane in dispute. There is no testimony to show that any public authority had before 1885 ever done any work on this road in question.
One item of testimony relied on by plaintiff is, in brief form, shown as follows: Isadore Schaub testified that in about 1891,
“My dad was running a steam engine and a threshing machine, and we had to draw water, and we had a tank that we had to dip with a pail, and they stopped us from going to the lake and getting water. So my father, John A. Schaub, he had this road laid out so they wouldn’t bother him. He asked them to let him go through this year, until the season was over, then he laid the road out. Julius Otto and Fahnus, the 2 neighbors, stopped him from going down there. The rail fence was removed then. The road was laid out and the fence was spread apart.”
This merely indicates an assertion on the part of somebody not the owner of the farm of his supposed right to go down across the road or lane in question. He is not shown to have been acting under any grant of authority from the public.
In 1898, the commissioner of highways of Bingham township in a written notice recited that the road in question was a highway, and ordered that a fence that ran along the section line on- the course of the road in question “be removed so that said highway shall be open and unobstructed and of the width originally intended, which was 4 rods.” It seems the fence at that time was removed but there is no convincing showing that the public authorities did anything whatsoever with the road in question from 1898 until 1935, the occasion testified to by witness Bartunek (corroborated by Mrs. Dechow), herein-before referred to, excepting that witness Grohinski testified that in 1924 he was hired by the highway overseer to move out of the road the fence which had (apparently after 1898) been put back into its former place by defendants.
Plaintiff fails to show that for any period of 10 years before 1951, the road in question was placed and maintained in such a situation for general use by the public as would comply with the Chapman Case, infra. Some members of the Bunek family testify to driving cattle along the lane or road in question during this period, also furnishing to their patrons occupying cottages of defendants on the lake, a means of access to their cottages. Since 1914, except for a few brief intervals, there appears to have been a fence along the section line interrupting the use of the road as a 4-rod wide highway.
In Alton v. Meeuwenberg, 108 Mich 629, we say (syllabus 4):
“To constitute a highway by user, there must be a defined line, and it must be used and worked upon by the public authorities, and traveled over and used by the public, for 10 consecutive years, without interruption, and the possession thereof by the public must be open, notorious, and exclusive.”
See, also, Missaukee Lakes Land Company v. Missaukee County Road Commission, 333 Mich 372 (syllabus 9).
In Chapman v. City of Sault Ste. Marie, 146 Mich 23, we say at p 29:
“The learned trial judge correctly instructed the jury that ‘not only the general public must use it and travel upon it as a thoroughfare, but the implied dedication must be accepted by the public authorities and the way taken in charge and maintained as other highways.’ ”
In Missaukee Lakes Land Company v. Missaukee County Road Commission, supra, we say (syllabus 6):
“A mere permissive use of a private road by the general public, however long continued, will not make it a public highway.”
See, also, Thunder Mountain Heights Land Corporation v. Van Buren County Road Commission, 342 Mich 88.
Clearly the evidence fails to show exclusive, continuous, uninterrupted, open, and notorious occupation of the roadway in question by public authorities as' a public road during any one 10-year period.
The decree appealed from is reversed. Costs to defendants.
Dethmers, C. J., and Sharpe, Smith, Boyles, Kelly, and Carr, JJ., concurred.
Butzel, J., did not sit.
Black, J., took no part in the decision of this case. | [
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Champlin, J.
Plaintiffs brought assumpsit to recover upon a promissory note for $199.41, dated at Boston, September 20, 1876, given by the defendant, and- made payable to his own order two months after date, and by him endorsed. The defense set up is a discharge of the defendant in bankruptcy granted by the district court of the United States for the eastern district of Michigan, after the' giving of the note and prior to the commencement of suit.
The case was tried before the court without a jury, who rendered a judgment for the plaintiffs upon the following facts found by the court:
“ First, that defendant is the maker of the note set forth in plaintiffs’ declaration, that plaintiffs are bona fide holders thereof, and that there is due on said note the sum of $268.58; second, that after giving said note, and while it was an existing legal claim against him, defendant voluntarily applied to the United States district court for the eastern district of Michigan, in bankruptcy, to be adjudicated a bankrupt; third, that defendant made no entiw of said note as an existing claim against him in his list of debts and creditors presented to said district court, and that said note, nor the claim it constituted against him, was in any manner before said court, and was never passed upon nor provided for by said court; fourth, that the said note was made in Boston, in the state of Massachusetts, has been held there since it was made, and that plaintiffs are, and have been since said note was made,, residents of said city of Boston; fifth, that no notice of any kind was served personally on said plaintiffs during the entire course of said bankruptcy proceedings, but that all the-notices required to be published by law in said proceedings, were duly published, but- said proceedings were never brought to plaintiffs’ personal knowledge ; sixth, that before the commencement of this suit defendant was discharged in the said United States court as a bankrupt; seventh, that the omission to enter the said note on the schedules in bankruptcy was made by defendant, because he believed the note had been paid by the person to whom he originally delivered it as an accommodation, and that said omission was a mistake, and not in fraud. From these facts the court finds in favor of plaintiffs and against the defendant for the amount due on said note.”
There is nothing in the facts to distinguish this ease from BenedAot v. Smith 48 Mich. 593. Applying the principle of that case to this, the judgment of the Superior Court must be reversed, and a judgment entered here for the defendant, with costs of both courts.
The other Justices concurred. | [
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Black, J.
By application for leave to appeal granted October 13,1955, defendant-appellants A. B. Herpolsheimer Realty Company, a Michigan corporation, Michigan Trust Company and Nellie B. Herpolsheimer, trustees under the will of Arthur B. Herpolsheimer, and Michigan Trust Company, trus tee for Claire Y. Knappen, review denial of their motion to dismiss plaintiff’s bill. The bill was filed in Ottawa county. The order of denial was entered by the Honorable Raymond L. Smith, circuit judge.
Appellants’ motion to dismiss pivots on CLS' 1954, §610.1 (Stat Ann 1953 Cum Supp §27.641),, reading as follows:
“Every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject matter is local, and if it is not local, in the county where 1 of the parties in interest resides, if either is a resident of the State.”
If the subject matter of this suit is not local, the bill was properly filed in the Ottawa circuit and the chancellor was right in denying the motion. If, on the other hand, the subject matter is local, the motion is entitled to due honor here. The issue must be resolved by careful analysis of plaintiff’s bill in light of the statute and our previous decisions. We must, of course, accept its allegations as true.
First: The bill alleges that plaintiff was and is a resident of Ottawa county. It then sets forth:
“2. Plaintiff is a present income beneficiary and potential remainderman of a trust created by paragraph 12 of the last will and testament of William Gf. Herpolsheimer, deceased, which trust is now being administered under the jurisdiction of the probate court for the county of Kent and State of Michigan and is hereinafter referred to as the ‘Trust’. Said plaintiff brings this suit as a class action for the benefit of all of said beneficiaries.
“3. Defendant A. B. Herpolsheimer Realty Company is a Michigan corporation which, although dissolved in July, 1952, is at this date by statute a body corporate for the purpose of suits and is hereinafter referred to as the corporate defendant. The other defendants are former stockholders of the corporate defendant to -whom its assets were distributed and are hereinafter referred to as the individual defendants. Caroline M. Richter and Amelia H. Herrmann each reside out of the State of Michigan.
“4. Prior to May 20, 1946, the corporate defendant, in addition to other property owned by it, was the owner of a certain 7-story building known as the Blodgett building located on the following described real estate: * * * (Here follows legal description.)
“5. Prior to May 20, 1946, the trust held title to buildings adjoining that of the corporate defendant and located on the following described real estate: * * * (Here follows legal description.)
“Prior to May 20, 1946, the then tenant of both properties insisted that, if it leased said premises after August 1, 1949, the buildings would have to be joined into a single building rather than being left as separate units with dividing walls and partitions. For this reason, the corporate defendant and the trust reached a tentative agreement to create a tenancy in common. During these negotiations the corporate defendant falsely and fraudulently represented to the trust that the Blodgett building was structurally sound, could he lawfully used for department store purposes, and that its total property to be contributed to the tenancy in common had a value approximating 2/3 of the value of the trust’s property so that a 60%-40% tenancy in common would be fair and just,.
“6. On May 20, 1946, the probate court for the county of Kent and State of Michigan, authorized the trust to exchange,an undivided 37% interest in the land and buildings described in paragraph 5 hereof for an undivided 63 % interest in the land and buildings described in paragraph 4 hereof and in other land and buildings owned by the corporate defendant hut not material to this cause. * * * Because of the structural defect hereinafter alleged, defendant’s property’s value did not exceed $600,000 which would create a ratio of' 66-2/3 to 33-1/3. In the probate court proceedings there was no disclosure of any structural defect in the Blodgett building. On or about May 3,1948, by appropriate conveyances, said tenancy in common was created.
“7. On or about March 26, 1948, the trust and the corporate defendant, as lessors, executed a certain lease with a Michigan corporation engaged in retail trade, which lease covered the property of the trust and the corporate defendant described in paragraphs
4 and 5 hereof and provided, among other things, # # #
“8. In executing said lease the corporate defendant falsely represented to the tenant and to the trust that said Blodgett building was sound and usable for a large department store whereas in fact it was so defective that such use would have violated the ordinances of the city of Grand Rapids and the laws of the State of Michigan as hereinafter more fully alleged.
“9. Immediately upon taking possession the tenant found that there was a serious structural defect in the Blodgett building which had been contributed to the tenancy in common by the corporate defendant, said defect consisting of a progressive settling of the corner foundation piers of said building. The tenant thereupon gave formal written notice to the lessors that if the building was not repaired the tenant would terminate the lease and hold the lessors liable for damages. Following inspection of the defective building by architects who determined that the building was in dangerous condition and would eventually collapse, the parties obtained an estimate of the cost of repair which amounted to $110,170.
“10. On or about August 25, 1949, in consideration of an increase in the initial amount to be spent by the tenant in improvements, and a waiver of the tenant’s claim as to structural defects, the lease was modified to eliminate the requirement of improvements in the event of renewal and to substantially reduce the percentage rental from that originally specified. Plaintiff was not informed of this modification and was not a party to it.
“11. Plaintiff alleges that either the immediate repair of the building or some modification of the lease and concession to the tenant was necessary to prevent the tenant from terminating the lease as it threatened to do and as it had the right to do after discovering the defective condition of the Blodgett building.
“12. Plaintiff alleges that the modification of the lease was detrimental to his interests and the interests of the other beneficiaries of the trust in that it decreased the rentals payable under the lease during the continuing existence of the trust and thereafter when fractional interests in the leased premises are transferred to the remaindermen of which plaintiff is one. Plaintiff further alleges that the loss which he and the other trust beneficiaries have suffered and will continue to suffer during the remainder of the lease because of the defect in the corporate defendant’s building should be borne by the corporate defendant and its former stockholders and not by the trust beneficiaries.
“13. Plaintiff has demanded of the defendants that an adjustment be made in the percentage division of the tenancy in common, that rentals received by defendant heretofore be adjusted to the new percentages, and that future rentals be divided according to such adjusted percentages. The defendants have refused to make any adjustment whatsoever. * * *
“15. Plaintiff alleges that the corporate defendant was guilty of actual or constructive fraud in falsely representing that the Blodgett building was. structurally sound and in contributing to the tenancy in common a building which was in fact structurally defective to such an extent that it could not have been lawfully used by the tenant for department store purposes without repairs which would have cost in excess of $100,000.
“16. Plaintiff alleges that since the inception of the lease of March 26, 1948, the defendants have received substantial rentals from said tenant, a portion of which should in equity be paid to the trust, :and alleges that an accounting is necessary to determine the amounts received and the amounts to be paid to the trust.
“17. Plaintiff is without an adequate remedy at law. Complete and adequate relief to the plaintiff and the other trust beneficiaries requires the adjustment of diverse rights among the trust beneficiaries and the defendants and an accounting of past and future rentals.”
(The prayer follows here.)
The bill presents, for consideration and determination of equity, a typical action in personam. It alleges plaintiff’s beneficial interest in the express trust identified in paragraph 2 and says that the corporate defendant’s fraud as alleged has defeated ■or partially impaired that interest. Upon such allegations plaintiff says that he and similarly situated beneficiaries are entitled to equity’s superintendence of the constructive trust as claimed to the end that such be managed as equity would have it done according to her maxims, and he comes to the ultimate fact of his pleaded right by allegation that the fraud-caused loss pointed up in the bill should, by decree for accounting and ancillary relief, be borne by the corporate defendant and its stockholders rather than the trust beneficiaries. Such is the jurisdictional essence of the bill. So viewed, it exhibits nonlocal subject matter. The chancellor was consequently right in refusing to dismiss it for above-assigned reason.
We said, by adoption, in Long v. Earle, 277 Mich 505, 523:
“A court of chancery has plenary power to affect the title to real estate beyond its jurisdiction by a sale and conveyance thereof by its master or otherwise by its decree in suits to execute trusts, to undo frauds, and to enforce contracts regarding such real estate, whenever it has acquired jurisdiction of the persons of the parties interested therein, for the reason that equity acts through the person.”
If plaintiff finally establishes the right he has pleaded, equity’s grace will come to him by relief granted directly against errant defendants and indirectly against the realty res. The shape of that relief will be formed by the chancellor according to germane conditions and equities existing at the time decree is made — not of necessity by the prayer of the bill (19 Am Jur, Equity, §410, p 283; Swan v. Ispas, 325 Mich 39). Indeed, the chancellor for aught we know may determine that plaintiff and his fellow beneficiaries are entitled to a decree for accounting only, or decree for compensatory damages only, rather than a direction of conveyance or re-conveyance of the mentioned real estate. It may not even be possible or expedient to order realty conveyances by the time that apparently distant day of decree arrives (19 Am Jur, Equity, § 411, p 283; 30 CJS, Equity, §74, p 430; 1 Pomeroy’s Equity Jurisprudence [5th ed], § 237e, p 438).
All these considerations unite in forming solid foundation for Judge Smith’s ruling that the bill exhibits nonlocal subject matter, and they find ample support in Noble v. Grandin, 125 Mich 383; Niemetta v. Teakle, 210 Mich 590; Reed v. Bird, 239 Mich 32; Dunnebacke v. Detroit, Grand Haven & Milwaukee R. Co., 248 Mich 450; Long v. Earle, 277 Mich 505; Schiff v. Peck Drug Stores, Inc., 278 Mich 432; Seaman v. Ironwood Amusement Corp., 282 Mich 258; and Haverly v. Haverly, 326 Mich 384.
Appellants have fundamentally erred in construction of plaintiff’s bill by seizing upon portions of the prayer distinguished from the stating portion thereof to support claim that “It is the ownership of the real estate itself which is in issue.” The premises of a bill in equity — not its prayer — are determinative of tlie substance thereof (Berg v. Berg, 336 Mich 284; McCoy v. Continental Insurance Co., 326 Mich 261; Ranaik v. Pokorney, 198 Mich 567; 30 CJS, Equity, § 210, p 667), and this is but another way of saying that relief within scope of the bill is the final responsibility of the chancellor and that the prayer aids rather than dictates equity’s decretal beneficence.
Noting again that the well-pleaded allegations of plaintiff’s bill are presently accepted as true, we advert to the polar guide of Pomeroy’s Equity Jurisprudence. The bill presents clear case for relief in personam under these successive precepts (3 Pomeroy [5th ed]):
“The jurisdiction, when it exists, may be exercised by granting reliefs which are peculiarly equitable, or reliefs which are wholly pecuniary, and therefore legal. • In conferring these reliefs which are purely equitable, and therefore exclusive, the power of equity knows no limit. The court can always shape its remedy so as to meet the demands of justice in every case, however peculiar (p 574).”
“In administering all these remedies, pecuniary as well as equitable, the fundamental theory upon which equity acts is that of restoration, — of restoring the defrauded party primarily, and the fraudulent party as a necessary incident, to the positions which they occupied before the fraud was committed. Assuming that the transaction ought not to have taken place, the court proceeds as though it had not taken place, and returns- the parties to that situation (p 578).”
“The remedy which equity gives to the defrauded person is most extensive. It reaches all those who were actually concerned in the fraud, all who directly and knowingly participated in its fruits, and all those who derive title from them voluntarily or with notice. ‘A court of equity will wrest property fraudulently acquired, not only from the perpetrator of the fraud, but, to use Lord Cottenham’s language, from his children and his children’s children, or, as elsewhere said, from any persons amongst whom he may have parceled out the fruits of his fraud’ (p 601).”
“One of the most important effects of fraud, and most striking illustrations of the equity jurisdiction, is found in the theory of trusts arising by operation of law. When property subject to a trust is fraudulently transferred, or when one person, in fraudulent violation of his fiduciary duty, acquires property which equitably belongs to another, or when one person by his actual fraud obtains the title to property in which another is beneficially interested, equity may work out and protect the rights of the beneficial owner by regarding the property as though it were actually impressed with a trust in the hands of the one who holds the legal title, by treating such person as though he were an actual trustee, and by enforcing such trust by means of a conveyance, accounting, payment, injunction, and other appropriate remedies. There is no other effect of fraud more remarkable, and none which exhibits more clearly the power of courts of equity to deal with the substantial realities under the appearance of external forms (p 618).”
Second: Appellants refer us to that portion of the same statute (CLS 1954, § 610.1 [Stat Ann 1953 Cum Supp § 27.641]) reading:
“And where it is necessary to file an information or bill in chancery, either to compel the specific performance of contract, cancellation of patents from the State, quiet title, or otherwise to affect real estate and when such real estate may be situated in different counties, it shall be competent to file such information or bill on the equity side of the circuit court in any 1 of said counties in which a part of said real estate may be situated; and such court shall have complete jurisdiction in the premises as fully and effectually as if the whole of such estate were situate in the county in which suit may be commenced,”
and allege on separate strength thereof that this bill must be filed if at all in the county of realty locus. As to this point Judge Smith said:
“The court has considered defendants’ further argument that CLS 1954, § 610.1 (Stat Ann 1953 Cum Supp § 27.641), provides that in actions affecting real estate located in more than 1 county suit may be brought in any county where part of the real estate is located. The court is of the opinion that this portion of the statute does not modify the previous portion, but merely takes care of the situation where real estate is located in several counties.”
We agree with the judge’s conclusion that the quoted provision does not dictate venue of suits in equity that are brought for accounting and ancillary relief under authority of rules previously considered in this opinion, and hold that it was intended as a guide for cases where realty subject matter is local and lies partly in one county and partly in another.
Third: Appellants insist, by topical heading:
“The courts of Kent county have exclusive jurisdiction of the William Gr. Herpolsheimer testamentary trust which has been administered at all times under the jurisdiction of the Kent county probate court.”
Under such heading, and on authority of Thaw v. Detroit Trust Company, 307 Mich 6, appellants say that the situs of the mentioned trust is in Kent county and that the equity court of that county is exclusively possessed of jurisdiction. Plaintiff says, in answer, that the mentioned trust has been terminated. Conflicting affidavits, sworn to respectively by opposing counsel, appear in the record. We need not decide the question of law posed by the affidavits — whether the trust terminated at death of Ralph C. Herpolsheimer — it being our view that the point is irrelevant considering absence of charge, in-the bill, against the William G. Herpolsheimer testamentary trust or its trustees. No claim of maladministration of that trust is made. If plaintiff prevails on strength of his bill, it will be at no expense to the William G. Herpolsheimer trust or its trustees. The decree in such case will not offend or infringe the statutory jurisdiction (if not already terminated) of the Kent county probate court; Actually, such a result would benefit the William G. Herpolsheimer trust and each cestui thereof.
The Thaw Case is not opposed. All trust beneficiaries in that case were nonresidents of Michigan. Their bill was held properly filed in the St. Clair circuit, where the probate court originally assumed and yet retained statutory jurisdiction over the testamentary trust. The bill alleged maladministration by the defendant trustee and demanded its removal together with an accounting. We have no such situation here — neither do we accept the Thaw Case as authority for the proposition that equity suits affecting testamentary trusts must be brought in the county of probate jurisdiction. . The statute first quoted in this opinion — not the probate code — decides equity’s venue. We therefore hold that this particular objection to Ottawa’s jurisdiction is without merit.
We have not overlooked the persuasive arguments of convenience that are set forth in appellants’ respective briefs. It may well be that the net sum of pro and con debate addressed to the doctrine forum non conveniens (cf., Silverstone v. London Assurance Corporation, 176 Mich 525) would, if submitted, lead to venue-transfer of this case from Ottawa to Kent. Such considerations are nevertheless' inconsequential at present sitting. If judicial digestion thereof is desired, they should be served to the chancellor on the platter of motion for change of venue — not motion to dismiss.
The order denying motion to dismiss is affirmed. Costs to appellee.
Smith, Reid, Kelly, and Carr, JJ., concurred with Black, J.
Dethmers, C. J., and Sharpe and Boyles, JJ., concurred in the result.
This hill, filed July 27, 1954, is not even at issue this first day of March, 1956. | [
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Campbell, J.
Complainant obtained a divorce from defendant for cruelty, and was granted seven hundred dollars alimony absolutely, and six hundred more in case she should release her dower, — these amounts to be paid in une, two, three and four years, with interest after one year. Defendant appealed generally, and complainant appealed for insufficient alimony.
Complainant, when she married defendant in November, 1876, was doing a fairly prosperous business as a hair-dresser, and had one daughter, named Jennie Farrell, about ten years old. She had no property beyond her business, which was •chiefly made available by her personal exertions. Defendant at this time was a widower who had been married more than once, and had several grown up children living near him, and three daughters at home of the ages respectively of fifteen, ten and five years. He lived on a farm adjoining Sebewa corners in Ionia county, where he was also engaged in mercantile business. He owned other lands near by.
The bill was filed in June, 1880, and complainant by her counsel took testimony and made out her case. By some clandestine arrangement between defendant and her counsel, they without her knowledge or procurement got a decree of divorce with a small amount of alimony, to the extent of $400, with ordinary costs. This decree was made in November, 1880. He had previously offered $500 as a compromise, but complainant declined making any consent arrangement. When she learned of this decree she filed a bill to rescind it for the fraud, and it was rescinded. Both parties afterwards proceeded with proofs, which are very bulky, the complainant having put her case in the hands of new solicitors, and the cause having been transferred to Kent county for disposal.
If divorce eases stood on the same footing with all other cases, we should feel bound to consider defendant as estopped by the decree entered in the first instance by his procurement, so far as the main issue is concerned. But our laws forbid all collusive divorces, and require each case to stand on its proper equities. We must therefore examine into the facts. It is proper to say that complainant has not sought to get any advantage from the old decree which she repudiated as fraudulent, and has invited a hearing on all the merits. ■
The case presents some difficulties concerning a part of the facts, and is supposed by counsel for defendant to raise some legal difficulties also. We shall therefore be obliged to make reference to the general nature of the controversy, but we do not think it desirable to perpetuate by narration the unfortunate details of family strife, beyond the actual necessities of decision. They arose in considerable measure from the complications of families not having the same common ties. While there was some disparity of age, it had no apparent effect on the relations of the parties except through the divers ity of children. No children were the result of complainant’s marriage with defendant. But complainant’s young daughter became one of the means of cruelty, if there was cruelty, by which defendant compelled her to seek legal redress.
Upon her marriage complainant gave up her business, and she and her daughter went into the family, consisting generally of these parties and defendant’s three daughters before mentioned. The older married children formed no part of the permanent household.
The grievances which complainant relies on are alleged as consisting chiefly in various forms of domestic tyranny, and more particularly in wounding her feelings by insulting and injurious charges and insinuations against her chastity. But the final and principal ground of complaint was the forcible and violent expulsion of complainant and her daughter from defendant’s house.
Upon the hearing defendant’s counsel very fully vindicated complainant from any imputations of impropriety, and insisted not only that defendant acquitted her of misconduct but had never charged her with it, and had always been and still continued desirous of her return. It is therefore hardly necessary to say that her character appears free from any such stain. But in his answer, he defends not only by making counter-charges of many neglects of duty and acts of ugliness, but by insinuations which are quite as offensive as direct charges of unchaste conduct. The answer is in such a tone as very conclusively negatives any desire for conciliation, or any real affection. And we- cannot but feel that it is somewhat corroborative of complainant’s charges as to defendant’s temper and conduct, as hard and vindictive. The witnesses to the larger part of the home transactions are necessarily such as to have considerable bias, and it becomes necessary to infer the real meaning of ambiguous facts by looking somewhat at results and consequences.
If we had nothing before us but the testimony concerning a large part of the sayings and doings in the family, we could not with any assurance conclude that such discords as appeared reached such a degree as to make the marriage relation any more intolerable than is found in many uncomfortable households, where it would be entirely wrong to break them up. Taking a good share of these by themselves, it could be believed that the case was the not uncommon one where a new wife, of a somewhat nervous temperament and not very robust constitution, is brought into a home where the husband is set, and not very sympathetic, and the children, though not vicious, have no filial attachment to her. It is evident that she was impulsive and not careful in her speech, and frequently hasty and more or less provoking in her conduct. Much that is shown to have been said and done by both was evidently not meant on either side to be seriously offensive, and a good deal of it on both sides was very much wanting in delicacy and refinement. But defendant indicated much less sensitiveness of feeling, and his retorts and insinuations do not seem to have been, as .generally as hers were, the outcome of haste or impetuosity, and were sometimes intentionally aggravating. It is impossible to read the record without a conviction that defendant has an obstinate and imperious .and domineering disposition which has borne upon her very heavily and made her feel her subjection very unpleasantly, and that he has meant to drive her into thorough submission. The methods of bearing down on those who are subject to such domination do not.usually furnish means of appreciation except in the aggregate results, and courts find it difficult to fully comprehend the true condition of things. But when we look at the evident condition of the family relations towards the last, and consider, what cannot be entirely ignored, how it affected the conclusions of those who were observers, we are convinced that he is responsible for a very serious mischief. The overt acts which are specified as the immediate cause of the separation were his driving complainant’s daughter out of the house without any reasonable cause, and with the evident purpose, not only of injuring her, but of cowing and grieving complainant. Having insisted that complainant should put her daughter somewhere else, and actually sent her from the house, he not only locked the doors on complainant and her ■child, but kept them out till a late hour in the night, and at last compelled them to sleep in an unusual room without letting them have their night apparel, and before admitting them at all used insulting and brutal language towards his wife. The next morning, when they were in the house, and ■complainant was engaged in household duties, he put both of them forcibly out of doors, and subsequently threatened the -daughter if she should ever darken his doors again, and ■ordered his wife to come back into the house. She, upon this, left and never returned. He afterwards offered to take back his wife, but only on condition of separating from her daughter.
It is difficult to imagine any worse cruelty to a mother than such conduct, if not explained or excused. The only explanation that is given is that by law a husband is not bound to support step-children. Such a rule, if applicable, is no excuse for personal violence and indecent abuse, and it ■could not palliate any cruelty which was resorted to from vindictiveness. But we do not think it has any place in this controversy. And we are not required on this, record to consider what the law is on that general subject.
Complainant was dependent on her own labor and exertions for the support of herself and child, and she had no difficulty in securing it. Defendant knew that this was the case, and he' must have known that none but an unnatural mother would desert her young daughter to become his wife, and that if she had any suspicion that he desired such a result she never would have married him. He has introduced some testimony to show that just after the ceremony she applied to him for leave to bring her daughter with her, and that' he kept a diplomatic silence. If this is true, it is one of the most disgraceful evidences of his character in the whole record. But, to his credit, we do not believe it. The child was at once made a member of the family, and it was only during the latter days of discord that her condition was questioned. It was one of the expedients to break the mother’s rebellious spirit, which, as we cannot but think, was the resort of disappointed obstinacy to compel submission to a very determined will. We are unwilling to believe that defendant has been actuated by any mere calculating malice. The record does not satisfy us that they would not have been reasonably harmonious if she had been always and unqualifiedly submissive. But we see no great signs of any more willfulness or self-assertion in her than any sensible person might view with indulgence and accommodate by kindness. The discords grew up gradually. But in their latter stages and in their results, we think that defendant has been guilty of very great cruelty, and that his willingness, if it existed, which we very much doubt, to get his wife back, and leave her daughter out of doors, is no indication to the contrary. ITe has made it impossible to imagine that they can ever live together, without some such radical change as we have no reason to hope for.
We think the divorce should be affirmed. The question of alimony becomes material. In considering it some regard must be paid to the defendant’s family necessities and surroundings. The expense and delay of the appellate proceedings make it necessary to make an additional allowance for legal expenses, and we think $150 should be allowed to be added to the $300 given by the court below. A much larger allowance is asked for by counsel, but we think that the circuit judge probably considered the matter fully, and we see no adequate reason for making any change in his estimate for services below. We presume the defendant has paid the expenses for testimony and other taxable costs. If not, he must do so, and the order may be in form for the payment of the taxable costs, in addition to this allowance of $300 below and $150 here.
We think the alimony allowed absolutely should be increased from $700 to $1000,'of which $200 must be paid within sixty days, and the remainder in two annual installments. As her dower is a right of which we cannot deprive her, we shall not disturb the decree on that subject.
The decree below will be affirmed, subject to these modifications.
The other Justices concurred. | [
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Cooley, C. J.
The plaintiff in this case counts upon the conversion by defendant of a certificate of stock in the Muskegon Wood Package & Basket Company, of the nominal value of two thousand five hundred dollars, belonging to the plaintiff and standing in his name. The company is a corporation, and the plaintiff, prior to April, 1881, was its secretary and manager, and the defendant was its president. The plaintiff ceased to be secretary of the company about April 20, 1881, and when he surrendered the office, left this certificate in the company’s safe. From the safe it was taken by defendant, as he claimed, without intention, and because it had in some way got among some of his own papers. When he-was called upon for it he at first denied having it, but afterwards, wheu he had found it, he declined, according to the testimony for the plaintiff, to surrender it, and made some claim that there were unadjusted matters between the plaintiff and the corporation which plaintiff should first adjust. ' A formal demand for the certificate having then been made, this suit was instituted. There was one trial of the suit before the one in which this judgment was recovered, and it appears that on that trial the certificate was produced — probably under a subpoena duces tecum — and was used by the plaintiff in making his proofs, and then left among the court files. On the second trial it could not be found, and secondary evidence had to be adduced to prove the contents.
There was no evidence that defendant had ever made any use of the certificate for his own purposes; he had merely refused to'surrender it to the plaintiff when it was demanded. Neither was there evidence that the plaintiff had ever been denied .his rights as a shareholder in the corporation, either at a corporate meeting or at any other time. The plaintiff’s action was grounded on the two facts that the defendant had retained in his hands the plaintiff’s certificate of stock, and had refused to surrender it:on demand. This refusal was submitted to the jury as evidence of a conversion, and they found a conversion upon it, and gave the plaintiff a verdict for the par value of the stock, which they" appear to have found to be the market value.
The questions arising upon the record are — First, whether trover will lie for a certificate of corporate stock; second, if it will lie, whether a conversion was sufficiently shown in this case; and third, whether the damages are to be measured by the market value of the stock.
I. That trover will lie for shares of stock was held in Morton v. Preston 18 Mich. 60. The facts in that case were that the widow and heirs of a shareholder in a corporation, thinking to avoid the expense of administration, took his certificate of shares and indorsed their names upon it, and then left it with one of their number to be sold for the benefit of all. This one, instead of selling it, pledged it for his own debt, and the pledgee was recognized by the corporation as the owner of the stock, and disposed of it as owner. An administrator upon the shareholder’s estate having subsequently been appointed, he brought suit against the pledgee for the conversion, and was held entitled to recover. This statement of the facts is sufficient to show that in that case there had been a conversion of the stock in the strictest sense of the term, and that the damages suffered were the value of the stock. For cases supporting this, reference maybe had to Anderson v. Nicholas 28 N. Y. 600; Maryland F. Ins. Co. v. Dalrymple 25 Md. 242; Jarvis v. Rogers 15 Mass. 389; Ayres v. French 41 Conn. 142; Boylan v. Huguet 8 Nev. 352; Kuhn v. McAllister 1 Utah 275, affirmed in 96 U. S. 87; Payne v. Elliot 54 Cal. 339 : s. c. 35 Am. Rep. 80; Connor v. Hillier 11 Rich. Law 193. In Neiler v. Kelley 69 Penn. St. 403, following Sewall v. Lancaster Bank 17 S. & R. 285, it was held that trover would not lie for the shares of stock, but must be brought, as it has been in this case, for the certificate which represents the stock. But we see no reason why, if the shares are converted by means of a wrongful use of the certificate, the owner in suing may not count upon the conversion of either. The shares are the property converted, but the certificate itself is also property; standing as it does as the representative of the shares, and as its conversion may take the shares from the owner, it seems to be as proper to count upon its conversion as upon the conversion of money or any chattel.
II. In this case there neither was nor could be any con•version of the stock, for though the defendant had the certificate in his possession, he could not make use of it. It stood in the name of the plaintiff, and could not be trausferred without the plaintiff’s indorsement, which it did not have, and the defendant could make neither the certificate nor the shares the property either of himself or of any third person by anything he could do with the certificate. Anderson v. Nicholas 28 N. Y. 600, 604, per Denio, C. J. If, therefore, it were necessary to show a conversion of the stock in order to make out a conversion of the certificate, this suit would fail. But conversion does not necessarily imply a complete and absolute deprivation of property; there may be a deprivation which is only partial or temporary, and where the property of the plaintiff remains in or is restored to him. Liptrot v. Holmes 1 Kelly 381, 391; Fisher v. Kyle 27 Mich. 454; Hall v. Corcoran 107 Mass. 251: s. c. 9 Am. Rep. 30. An illustration is where one hires a horse for one use and puts it to another, subsequently returning it to the owner. Homer v. Thwing 3 Pick. 492; Rotch v. Hawes 12 Pick. 136: s. c. 22 Am. Dec. 414; Crocker v. Gullifer 44 Me. 491; Horsely v. Branch 1 Humph. 199. The difference between such a case and one in which the property is wholly made away with, is one affecting the damages only; the damages go to the whole value of the property in the one case, and are commonly less in the other. Wheelock v. Wheelwright 5 Mass. 104; Long v. Lamkin 9 Cush. 361; Reynolds v. Shuler 5 Cow. 323; Cook v. Loomis 26 Conn. 483; Brady v. Whitney 24 Mich. 153, 156.
There may therefore have been a technical conversion in this case, though no use was made of the certificate. Demand for the certificate, and refusal to deliver it, did not of themselves constitute a conversion, but they were evidence of a conversion to go to the jury. Thompson v. Rose 16 Conn. 71; Dent v. Chiles 5 Stew. & P. 383: s. c. 26 Am. Dec. 350; Houston v. Dyche Meigs 76; Coffin v. Anderson 4 Blackf. 395; Sturges v. Keith 57 Ill. 451: s. c. 11 Am. Rep. 28; Packard v. Getman 6 Cow. 757: s. c. 16 Am. Dec. 475; Hawkins v. Hoffman 6 Hill 586; Davis v. Buffum 51 Me. 160; Farrar v. Rollins 37 Vt. 295; Huxley v. Hartzell 44 Mo. 370; Lander v. Bechtel 55 Wis. 593.
III. But the court erred in holding that if a conversion was made out the plaintiff was entitled to recover the market value of the shares. As the plaintiff has all the while remained, and still is, the owner of the shares, and the defendant will not by the recovery become owner, the error seems very plain. There are some casés in which trover has been brought for instruments which were rather the representatives of property than property itself, in which a recovery has been allowed to the full value of the property; but nearly every case has stood upon its own facts, and is easily distinguishable from the present. In Parry v. Frame 2 Bos. & P. 451, which was trover for a lease, the plaintiff recovered the full value of the term ; but it appeared that he had made arrangements with the landlord which amounted to an appropriation of the term, and the recovery was therefore plainly just. Clowes v. Hawley 12 Johns, 484, was trover for a title bond executed by the defendant himself, and when the plaintiff recovered the value of the land, to which he was entitled under the bond, the defendant remained the owner. Coombe v. Sansom 1 Dowl. & R. 201, was trover for title deeds, and the plaintiff had a verdict for the large sum of £2500. But the recovery of such damages appears to have been allowed only as a means of compelling the wrongful possessor of the deeds to surrender them to the owner, and an order was entered for the reduction of the judgment to a sum which would indemnify the plaintiff for his actual damages on the deeds being restored. In Mowry v. Wood 12 Wis. 413, the owner of a certificate issued by the state, and which entitled the holder to receive from the state a deed of certain lands when specified payments were made, was held entitled to recover, in an action for its conversion, not the value of his interest in the land under the certificate, but such sum as would recompense him for any actual loss he had sustained, and for the trouble and expense of establishing and perpetuating the evidence of his title. In other words, he was held entitled to recover only his actual damages.
The case of Connor v. Hiller 11 Rich. Law 193, apparently favors the rule of damages given to the jury in this case.¡ The action was for the conversion of a certificate of shares in; bank stock, and the court, in a very short opinion, citing. Parry v. Frame and Clowes v. Hawley, supra, as authority,! decided that the plaintiff was entitled to recover the market value of the shares. The defendant had suffered a default, and thereby, as the court say, had admitted the plaintiff’s title and the conversion. Perhaps in that state of the case the recovery of the market value was proper. It certainly was proper if the certificate in the defendant’s hands could be used and transferred by him; and the report does not show whether that was or was not the case. Another case having some apparent bearing is Nelson v. King 25 Tex. 655. The action was for the conversion of land scrip. The defendant was bailee of the scrip, and it was shown that he had put it out of his hands by delivery to another person, who refused to recognize the plaintiff’s rights. The court held that the scrip was to be regarded as a chattel, and that the plaintiff was not bound to' follow it into the hands of third persons and contest with them the title, but might sue for the value, treating the conversion as total. The case is manifestly quite different from the one before us, and appar ently resembles Morton v. Preston in its main facts.
We think the case should be remanded for a new trial.
The other Justices concurred. | [
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Carr, J.
Plaintiffs brought this suit in equity alleging that defendants were guilty of unfair competition to the detriment of plaintiffs, and asking for injunctive relief. It does not appear that there is any serious disagreement between the parties as to the material facts. In 1937 defendant Bernard Edelman entered the real-estate business in Detroit, operating as a salesman and later as a broker, and also buying and selling property for his own account. In his brokerage business he employed a number of salesmen, including the plaintiffs Singer and Letvin. In October, 1948, said plaintiffs, in conjunction with 2 other salesmen employed by Edelman, entered into an agreement with'the latter for the purchase of the good will, trade name, and furniture and fixtures used in the business, together with signs and other property and property rights used in connection therewith. The written undertaking set forth that the purchasers intended to form a corporation under the name Edelman Realty Company, which was the assumed name under which the defendant had been operating. It was apparently understood that each purchaser was to pay the sum of $5,000 for a 1/4 interest.
Following the making of the agreement referred to, the corporation was formed and proceeded to carry on the business. In accordance with the contract, defendant Bernard Edelman acted in an advisory capacity for a period of 60 days following the sale. It was also stipulated that the purchasers should not sell “the trade name of Edelman Realty Company as a separate and distinct asset aside from said corporation,” and that for a period of 3 years after the consummation of the sale defendant'Edelman should not operate as a real-estate broker, or license real-estate salesmen, within the city of De-' troit. It was expressly stated, however, that such provision' should not be deemed to mean that Edelman could not “buy and sell his own real estate” during said period. Other provisions of the contract of October 14, 1948, do not require specific discussion.
The record indicates that plaintiffs Singer and Letvin carried out their respective agreements with reference to the payments for the interest received by each in the business and assets. The other 2 purchasers gave notes, secured by a pledge of their stock in the Edelman Realty Company by way of security. The obligations were not paid and, either by foreclosure or by agreement of the parties, defendant Edelman became the owner of the pledged stock. Thereupon he participated in carrying on the business of the corporation in conjunction with plaintiffs Singer and Letvin. He also bought and sold real estate for his own account.
It does not appear that any material differences arose between the parties but in December, 1949, a second agreement was made and reduced to writing-pursuant to which Singer and Letvin purchased de fendant Edelman’s stock in the corporation for $15,000. To this agreement the corporation was a party, it being executed therefor by Singer as president and Letvin as secretary-treasurer. It was expressly provided therein that the agreement for the sale of the property, executed on October 14, 1948, should be of no force and effect except as to certain provisions incorporated in the new contract. Among-the provisions so incorporated was the undertaking-on the part of defendant Edelman that he would not for a period of 3 years from and after the date of the contract engage in the real-estate brokerage business in the city of Detroit, or license real-estate salesmen. It was further stipulated, as in the contract of-purchase, that such provision should not prevent Edelman from buying and selling real estate, such operations on his part being “expressly permitted.” Other restrictive covenants retained by the parties are not involved in'the present controversy. It may be noted, however, that the provision in the first contract with reference to the disposition of “the trade-name of Edelman Realty Company” was retained.
Following the purchase of' defendant Edelman’s stock in the corporation its business continued under the management of plaintiffs Singer and Letvin. The business was financially successful. The greater-part of the income was received by way of commissions on sales of property listed with plaintiff corporation. In some instances the corporation bought and sold property at a profit. It also received some income, not extensive in amount, from its rental and insurance businesses. Defendant Edelman continued his operations in the purchase and sale of real estate, but it is not shown by the proofs in the-case that he did a brokerage business. He associated himself in his operations with defendant Silverfarb, the 2 operating as a copartnership under the name of Bernard Edelman Real Estate. He also organized a corporation under the name of Bernard Edelman Associates, Inc. The business of buying and selling property was conducted under the names of said partnership and said corporation, and perhaps in part under the name of Bernard Edelman.
In their suit plaintiffs challenge the right of the defendants to use the name Edelman in connection with the business transactions mentioned. Specifically it is urged that such use constitutes unfair competition injurious to plaintiffs, requiring the granting of injunctive relief. The argument is advanced that confusion has resulted to some extent, and will continue unless the relief sought is granted. It is the position of plaintiffs that when the business was purchased in 1948 they acquired the sole right to the use of the name “Edelman.” As before noted, however, the contract of sale, as well as the second contract executed in December, 1949, referred to “Edelman Realty Company” as the trade name. A fair construction of the agreements leads to the conclusion that the purchasers bargained for the right to use the name under which the business had been conducted rather than the name of the seller. The plaintiff corporation was organized in accordance with the agreement. No claim is made that defendant Edelman has in any instance since severing his connection with the corporation bought and sold property, or otherwise carried on his business, under its name.
Following the hearing of the case in circuit court the trial judge filed a written opinion in which he discussed at some length the factual situation presented and the legal issues raised by the parties. It was his' conclusion that the plaintiffs had not established their' right to equitable relief, that defendants had not engaged in fraudulent practices calculated to deceive the public and to injure plaintiffs-, that defendants had' not conducted a brokerage business, and that as a practical proposition plaintiff corporation and defendants were not in competition except perhaps as to the activities of the parties in the purchase and sale of property for their own accounts. Plaintiffs have appealed from the decree dismissing their bill of complaint, contending that the trial judge was in error in his conclusions as to the facts and the law.
The instant suit was started in circuit court on February 28, 1953, more than 3 years after the last contract between the parties was made. At that time the 3-year limitation set forth therein had ended. The practical situation is that the parties contracted as to a specific limitation to which defendant Edelman should be subject in the operation of a real-estate brokerage business. Such express stipulation excludes any possible claim based on the theory of an implied restriction of like nature. Furthermore, as above noted, the parties agreed, and so stated in their contract, that defendant Edelman should not be restricted in the buying and selling of teal estate during the 3-year period. These provisions are obviously significant as to the understanding of the parties at the time with reference to the conducting of business transactions by defendant Edelman. No provision was inserted in either contract prohibiting said defendant from using his own name in carrying on the business of buying and selling real property. It is a fair inference that plaintiffs considered at the time that he would do so.
The purchase of the good will of the business did not carry with it an implied undertaking on the part of the seller to refrain from doing what the agreement of the parties stated he might do. Getter v. Levine, 315 Mich 353. The 3-year period specifically mentioned in the agreement, as above set forth, having expired before the case was started, no claim of a right to relief based thereon is tenable. Wedin v. Atherholt, 298 Mich 142.
In providing in the agreements that defendant Edelman’s right to carry on the business of buying' and selling real estate was not restricted, and was in fact permitted, the parties undoubtedly had in mind that he would of necessity be required to use-his own name, an assumed name, or perhaps organize a corporation for such purpose. It is significant that no express limitation was imposed with reference to defendant Edelman’s buying and selling property in his own name. As before pointed out, the trade name transferred under the contract of October, 1948, was “Edelman Realty Company.” Defendants have not used that name. "We are in accord with the finding of the trial judge that defendant Edelman has not violated provisions of the contracts involved in the case.
In the case of Williams v. Farrand, 88 Mich 473 (14 LRA 161), this Court considered at some length the right of one disposing of his interest in a going business to carry on business transactions of like nature under his own name. It was there recognized (p 488) that “a person has the right to use his own name unless he has expressly covenanted otherwise.” The ease has been repeatedly cited in subsequent decisions relating to the subject matter. Without discussing in detail the principles there recognized, we think it may be said that it supports the position of the defendants in the instant controversy.
In Young & Chaffee Furniture Co. v. Chaffee Brothers Furniture Co., 204 Mich 293, in discussing the general principles applicable in a case of this nature, it was said, in part (pp 298, 302, 303):
“One may dispose of the right to use his name in connection with a certain business; he may so circumscribe himself as to be estopped from claiming-the right to its use in that business; but generally speaking one has, the right to use his own.name; he may not use it in such a way as to lead the public to the belief that they are dealing with another, or that his wares are the wares of another; he may not by any artifice so use his name as to deceive the public into the belief that his establishment is the establishment of another, thereby bringing to himself profit not properly appertaining to himself and his business, and thus inflicting damage on his competitor. # * *
“Do the facts established by this record authorize the relief sought? There is no claim that the defendants Chaffee have by express contract transferred to plaintiff the exclusive right to use their family name; there is no claim that they have expressly covenanted not to use their family name in the furniture business in Grand Rapids. But one of them owned any stock in plaintiff company, and he but a comparatively small amount. When he sold it he did not either expressly or impliedly covenant not to engage in the furniture business under his own name or any other name. Defendants Chaffee were but employees of the company, paid for their services as other employees were, earning their wage as other employees did. Have they so circumscribed themselves as to be estopped from using their own name in the furniture business in Grand Rapids? We think not. * * *
“We are not impressed from an examination of all the testimony, including the exhibits, that outside of some petty annoyances, such as telephone calls and an occasional small payment of money to plaintiff, which belonged to defendant, that there has been any considerable amount of confusion, or that plaintiff has suffered annoyance consequential in any amount when the amount of their business is considered. Plaintiff’s managers seem to have prepared for this lawsuit by filing such evidence of confusion as they were able to collect over some period.”
We think that the foregoing statement may well be applied to the facts in the case at bar. Defendant Edelman did not covenant that he would not use his own name in the carrying on of his business, the business that he was authorized by the agreements to conduct. The confusion resulting is minor in character and it does not appear that it has resulted in any material prejudice to the plaintiffs. Neither may it be said that the advertising efforts of defendants, on which some emphasis is placed, will result in the future to the detriment of plaintiffs rather than to their advantage.
Likewise pertinent is the comment made by the Court in Central Mutual Auto Insurance Co. v. Central Mutual Insurance Company of Chicago, 275 Mich 554, 560, as follows:
“There may be some confusion resulting from the similarity of the names of plaintiff and defendant, but the confusion of which the court takes cognizance must be something more than that resulting from carelessness or ignorance on the part of the uninformed. The strong arm of a court may not, in •equity and good conscience, be invoked on account of anything over which defendant has no control. Defendant is not an insurer against the ignorance or ■carelessness of particular individuals and may be enjoined from the use of its corporate name after admission to do business in the State by the commissioner of insurance by that name, only upon a showing the similarity of its name to that of plaintiff will mislead, or probably mislead, the public to the detriment or injury of plaintiff. Federal Securities Co. v. Federal Securities Corporation, 129 Or 375 (276 P 1100, 66 ALR 934); 6 Fletcher on Corporations (Perm ed), p 57.”
In the case of Moon Brothers, Inc., v. Moon, 300 Mich 150, it was pointed out that each case involving •a claim of unfair competition must be determined up■on its own facts, and that relief granted rests on principles of common business integrity. In reaching its conclusions the Court discussed at some length prior decisions recognizing the general principles applicable in the determination of a case of the nature now before us.
The trial court had the advantage of listening to-the testimony of the witnesses and was, in consequence, in position to evaluate the proofs as they were offered. On the record here we cannot say that had we been in his position we would have reached a different conclusion as to the facts. Neither may it be said, in view of the record aiid the general principles recognized by prior decisions of this Court, applicable here, that the decree entered is not in accordance with the just rights of the parties. Under such circumstances we do not reverse. Schwafert v. Doerner, 317 Mich 715.
The decree is affirmed, with costs to defendants.
Dethmers, C. J., and Sharpe, Smith, Reid, Boyles, Kelly, and Black, JJ., concurred. | [
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Boyles, J.
Plaintiffs brought suit against the defendants in the' circuit. court for St. Joseph county for $3,140.73,. plus interest, the balance of the purchase price of a taxicab business, including 2 automobiles, in Sturgis, Michigan. Issue was joined and testimony taken on trial by jury, at the conclusion of which the trial court granted plaintiffs’ motion for a directed verdict in the sum of $3,488.33. Judgment was entered for plaintiffs accordingly. The defendants appeal.
Plaintiffs declared on the common counts, adding special counts based on a certain promissory noté executed by the defendants and by their daughter, Lucille Foster, and her husband, George Foster, together with a chattel mortgage executed by the Fosters, promising to pay to plaintiffs $3,500, the purchase price of said taxicab business and said automobiles sold by tbe plaintiffs to tbe defendants’ daughter, Lucille Foster, and her husband George. Plaintiffs’ declaration also counted upon a separate written agreement executed by the plaintiffs and the defendants Poley and wife, reciting that whereas George Foster and their said daughter Lucille were purchasing from plaintiffs their so-called Yellow Taxicab business in Sturgis, and whereas the defendants (Poley and wife) were interested in their daughter and son-in-law being able to acquire said business and pay for the same, the defendants thereby agreed to pay the indebtedness of said George and Lucille Foster, the purchasers of the business. The essential part of said separate written agreement is as follows:
“Now therefore, and as a part of the consideration of inducing said Templin and wife to sell to said Foster and wife, the said automobiles and taxicab business, it is agreed as follows:
“Second parties [defendants Poley and wife] for adequate consideration by them received hereby specifically agree and promise that they will and shall pay the entire balance, together with all accrued interest on said above-mentioned $3,500 note, any time after 8 months after date hereof, in event said first parties [the plaintiffs] require and demand said payment in full of said note.”
The defendants claim lack of consideration and more particularly rely upon a claim that the plaintiffs had represented that the operating income of the Fosters from the taxicab business would be sufficient to make payment of the purchase money; and that the plaintiff Ernest F. Templin had entered into a conspiracy with Lucille’s husband, George Foster, which prevented the successful operation of the taxicab business by Lucille.
The execution of the written instruments on which the plaintiffs sued has not been denied. The pre trial order, here in the record, signed by the trial judge, states that at the pretrial conference the' plaintiffs appeared in person and by their attorney,, the defendants also appeared in person and by their attorney, and that
“it is determined by the court and stipulated by counsel as follows: * * *
“4. That the issues are on the claim of plaintiffs upon the original contract, which is admitted as to its execution by defendants but in defense thereof defendants claim that performance of said contract was made impossible by the alleged conspiracy between plaintiffs and one Foster.”
The circumstances on which the defendants rely to establish their claim of an alleged conspiracy between the plaintiffs and the defendants’ son-in-law, George Foster, may be summarized as follows:
The plaintiffs had a taxicab business on one of the streets in Sturgis, and across the street the defendants had a restaurant business. The plaintiffs wanted to sell out their taxicab business and the defendants wanted to acquire it for their daughter Lucille and her husband George; the transaction was completed by the execution of the papers on which the plaintiffs have brought this suit. Shortly afterward Lucille filed a bill for divorce against George and was granted a decree of divorce, in which she was awarded the taxicab business, including the automobiles. In the meantime, George had gone to live with the plaintiffs’ son in his home, frequently visited the plaintiffs in their home, and the defendants claim that George and the plaintiffs “conspired” to prevent Lucille from successfully operating the taxicab business. During their separation, George had tried to run the business for a week, then Lucille took it over for about 2 weeks and then discontinued the operation, several months before the business was awarded to her by the divorce decree. During that time there was some misunderstanding between George and Lucille about trading in the Ford taxicab for a new Chevrolet, as to the title. However, plaintiffs had no knowledge of this dispute until after their return from a Florida vacation, when they first saw a new Chevrolet being used as a taxicab. Admittedly, Lucille was in possession of the business and discontinued its operation, at about the time she filed her bill for divorce.
Viewing the testimony in the light most favorable to appellants, we agree with the trial court that there is a complete absence of any proof that the plaintiffs had engaged in any conspiracy with George Foster to prevent the successful operation' of the taxicab business by the defendants’ daughter Lucille. Furthermore, we agree also with the trial court that it would not constitute a defense to plaintiffs’ suit on the written instruments, although the defendants may have had a remedy not available in .this suit. Appellants’ claim of a “conspiracy” is ■directed to the time subsequent to the sale and transfer of the business. There is no claim that plaintiffs “conspired” in any way prior to the completion of the sale. The trial court did not err in excluding testimony as to whether the plaintiffs had made a ■conditional promise that the money was to be paid them only, from proceeds of the business. It would have tended to vary the express terms of their contract, and there is no language in the exhibits which might be construed as such a promise. Nor do we find any reversible error in the admission or the exclusion of any testimony. Under the circumstances, there was no occasion for the trial court to charge the jury on any question of credibility >of witnesses, or the law relating to the legal effect of the testimony.
Defendants claim there was no consideration for the promissory note, the chattel mortgage, or their agreement to pay the debt of their daughter and son-in-law. It is an admitted fact that the plaintiffs .parted with their business and transferred it, together with title to the automobiles, to Lucille and her husband in consideration of the promissory note, chattel mortgage and defendants’ agreement to pay plaintiffs the $3,500 purchase price. It is immaterial whether the consideration paid by plaintiffs (the business) passed to the defendants (promisors), or to the debtors. Rood v. Jones, 1 Doug (Mich) 188; Corkins v. Collins, 16 Mich 478; Sanford v. Huxford, 32 Mich 313 (20 Am Rep 647); Pratt v. Bates, 40 Mich 37; Stewart v. Jerome, 71 Mich 201 (15 Am St Rep 252).
Affirmed.
Carr, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Dethmers, J.
This is an action in assumpsit for damages allegedly occasioned by plaintiff’s discharge from the employ of defendant school district, hereinafter called defendant. From judgment of no-cause for action, plaintiff appeals.
Plaintiff entered defendant’s employ in 1930. He-was discharged September 1,1948. His first contention is that he enjoyed continuing tenure under what is styled, in the record, as “Research series No 2, The public school code of the Hamtramck, Michigan, public schools.” We are in accord with the finding-of the trial judge that the record contains no proof that defendant ever adopted such code and, further, that, if adopted, its terms were not mandatory, but permissive, as relates to granting of tenure and that the record is barren of proof that tenure ever was granted thereunder by defendant to plaintiff or anyone else.
Next, plaintiff relies on a temporary injunction, in effect at the time of his discharge, issued by the Wayne county circuit court in 1942 in a chancery action, in which the party defendant was the same as here and the plaintiff was a teachers’ union, of which plaintiff herein was a member. The temporary injunction enjoined the defendant during pendency of that chancery action:
“from failing or refusing to grant to plaintiffs and all the members of plaintiff association continuing tenure * * * from discharging plaintiffs or any members of plaintiff association from their position as teachers in defendant school district, and from severing the contractual relations with such teachers; from repealing, rescinding, amending or modifying, or attempting to do so, the Hamtramck school code or any portion thereof; * * * and from violating any of the terms of the Hamtramck school code.”
The chancery case was never tried. On October 20, 1949, three months after commencement, but before trial, of the instant case, a stipulation between the parties thereto was filed to dismiss the chancery action and on the following day an order entered dismissing it with prejudice. We are cited to no authorities, nor do we find any, to the effect that such temporary injunction created a contract of employment or continued an existing one beyond the period specified by its express terms, so as to give rise to a cause of action in plaintiff in assumpsit for violation of the injunction. We hold that it did not.
Affirmed, with costs to defendants.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Kelly, JJ., concurred. | [
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Reid, J.
These 2 cases were consolidated on the hearing in the court below and on appeal to this Court, but are 2 separate cases and require separate findings because not all the controlling facts are the same in each case, though many phases of each case depend upon certain facts which are common to both cases. From decrees for defendants, the plaintiff appeals.
At the conclusion of plaintiff’s proofs, defendant General Motors Corporation moved for dismissal of the bills as to it. The motion was granted in one of the' suits and denied as to the other. Defendant ■Cecil M. Kelly moved that plaintiff’s bill be dismissed as to him, which motion was granted.
These suits are brought by Mrs. Helene Striffler, widow of Fred Striffler, deceased, as president of and in the name and for the benefit of a corporation, Fred Striffler, Inc., in which she owns a controlling ■interest. These 2 suits are actually brought principally for Mrs. Striffler’s own benefit. 'It is plaintiff’s theory that Frederick S. Wilsie (in the first suit) and Delvin Striffler (in the second suit) both were under obligation to plaintiff, Wilsie as confidential employee and Delvin Striffler as a specially-constituted agent. In the first suit, plaintiff claims that Wilsie was obligated to guard plaintiff’s business interests, to cooperate in the management of plaintiff corporation’s business, and especially to aid in procuring for plaintiff corporation a renewal •of the sales agreement. Plaintiff claims that defendant Wilsie is liable for violation of the duties owed by Wilsie in that he procured a sales agreement of the Chevrolet by and for Wilsie-Kelly Chevrolet Company, and not for plaintiff.
In the other suit, plaintiff claims that defendant Delvin Striffler violated a trust relationship created by his agreeing to act with plaintiff in negotiating with General Motors to obtain a sales agreement, and that he procured for himself the agency sought by Mrs. Striffler for plaintiff with Delvin Striffler to be a stockholder in or associated with plaintiff ■corporation. The defendants in the 2 suits are ,claimed by plaintiff to be separately liable in equity on plaintiff’s demand for an accounting.
Plaintiff corporation had been formed by Mr. Fred Striffler in his lifetime and was in practical ■effect a one-man corporation. A majority of the stock was owned by him and apparently the rest of the stock was owned by his wife and 3 daughters. .
Mr. Striffler had for many years been acting under successive sales agreements with General Motors Corporation in making sales of Chevrolet, Pontiac, Buiek and Cadillac cars. During the period of about 1943 to 1945, he operated in a partnership under an arrangement with General Motors for sales at Caro, Michigan. During that period he was budget director of the State and absent much of the time in Lansing, and during that time many of the matters under the sales contract had been under the direct care and attention of Mr. "Wilsie, who later formed the Wilsie-Kelly Chevrolet Company, defendant.
In 1947, Striffler returned from his duties at Lansing, to Caro, and the partnership in which he had acted as directive head of the sales agency was dissolved in 1947, but deceased continued the sales business under various sales agreements. About March, 1948, the plaintiff corporation was formed. The agreements were personal with Striffler, non■assignable, and expressly made subject to cancellation in case of his death.
Fred Striffler died July 15, 1948. Mrs. Helene Striffler testified:
“I first tried to see if I couldn’t operate myself. I was told that I would not be able to. I first tried to see if I couldn’t handle it myself. I was hopeful. Then I found that I couldn’t operate as a responsible party on an agreement myself. I believe Mr. Stuart told me that. It would he very difficult for me to remember the exact date. It was shortly after Mr. Striffler’s death, so that shortly after Mr. Striffler’s death, which was on July 15, 1948, I knew that I couldn’t carry on as the person in paragraph third, I guess that is what they call it. * * * First of all I tried to interest someone to buy in the business outright. I had a talk with a man by the name of Beulin up at Cass City. And I had a talk with Mr. Summerfield’s son-in-law. There was nobody else that I had a talk with before I approached Mr. Wilsie, only the mention I made to Mr. Auten [the banker] * * * in an offhand way.”
August 5, 1948, Mr. Stuart, who had supervision for Chevrolet division of General Motors of dealership contracts in the territory in which Caro was situated, reported to his superior a recommendation that “we terminate this dealership immediately for there is no one in the dealership capable of managing the business.” (Italics supplied.)
Mr. Garber, distributor, who had charge of Buiclc agencies in the territory in question, testified:
“I only told her the same thing, that we weren’t interested in making a contract with her to continue in the business because it was not a business for a lady, and I had a long visit about the business, the used cars and all the things that go to make up our business, and that it is not the type'of business for her,- and I knew her very well, and I thought I was trying to do her a favor to get her out of the business.”
Mr. Chapman, assistant general sales manager of Pontiac division of General Motors, testified:
“The Court: What conversation did you have with her when you went out there on October 1 [1948],?
“A. Well, I discussed the operations of our dealership, Judge, on the basis that we felt that at all times in cases of a widow like this involved in an automobile dealership, through our experience, many times that a widow was much better off to get out of the business and turn it over to somebody else so she, in turn, could do exactly what she felt best for the assets that were converted into cash for her.
“The Court: What did she say?
“A. She agreed Avith me, Judge.
“The Court: What did she say?
“A. She said, ‘I think you a-re absolutely right,’ and she very agreeably signed.
“The Court: You told her it was your experience that you didn’t want to carry along with a widow?
“A. I know in my own case, and personal friends in the automobile business, have already instructed their families that any time they pass on, to immediately get out of the business.
“First of all, it wasn’t a woman’s business to be in.
“The Court: You say you talked to her about it?
“A. Yes, sir, we did. We had a very enjoyable
visit with Mrs. Striffler. She Avas quite agreeable.
“The Court: There was no conversation about her being able to continue if she got somebody?
“A. No, Judge, not in October. The time when she gave me the cancellation.”
Mr. Stuart testified that all applications for the ■dealership came to his attention and that up to August 31, 1948, the date he left General Motors to take a dealership in Warren, Ohio, no application ■to his knowledge had been received from Wilsie. The letters of recommendation for Wilsie are dated September 28, 1948 and September 29, 1948. Wilsie was not recommended to Keating of the central of'fice of General Motors until October 5, 1948 (exhibit No 53).
August 17, 1948, Chevrolet division of General Motors terminated its sales agreement with plaintiff corporation. Because of the terms of the contract, it was not renewable in the strict sense of that word. In August, 1948, an interview occurred between Mr. Stuart and Mrs. Striffler. Mr. Stuart testified:
“I pointed out to Mrs. Striffler that our thinking was exactly the same as it was when we had, when I had previously talked with her on August 20th, namely we wanted a new dealer, that we wanted a new building, that we wanted to divorce ourselves from Pontiac, by reason of the fact that the Pontiac was so close to the price range of Chevrolet, and that that probably meant we would be divorcing ourselves from Buick, too, and that even though those were not our desires and intentions, we could not recommend Mr. Wilsie for manager of the dealership up there by reason of the fact that her husband in talking about incorporating the business possibly 9 months before had specifically told me that he had lots of respect and lots of respect for Mr. Wilsie’s selling ability, but he did not have confidence in him from a managerial standpoint, and from that standpoint, if Mr. Striffler, who had worked with Mr. Wilsie for a period of some 20 years, if he felt that way, and we had a lot of respect for his judgment, if he felt that way, then certainly I, who knew very little about Mr. Wilsie, could not recommend him. * * * I did not state to her either directly or indirectly that I would think her proposition over. I couldn’t have said that because I had also told her I was taking a dealership in Warren, Ohio, on September 30th.”
Mrs. Striffler testified that on her request Wilsie agreed to manage the business of plaintiff corporation at a meeting of the corporation held July 24, 1948, and that Mr. Wilsie actually did conduct the management of the business from that time on, until the business was practically closed by sales to defendants of parts, accessories, et cetera, November 1,1948.
Mrs. Striffler in her testimony would make out that she was continuing negotiations for an exten sion of the sales agreement for plaintiff practically until October. However, in that connection we note the testimony of Mr. Stuart heretofore quoted.
During the fall of 1948 Mrs. Striffler for the plaintiff corporation signed certain documents, exhibits offered and received in evidence, by which she surrendered to defendant Wilsie-Kelly company the business conducted under the Chevrolet sales agreement, and surrendered to the owner, the lease of the premises where the business had up to that time been conducted. Plaintiff sold the parts to the successors in business and knew of the construction of the new $109,000 building that was put up by the Wilsie-Kelly company.
Mrs. Striffler’s excuse for not asserting the rights she now asserts in the instant suit for approximately 3 years is that she did not know her legal rights. However, in selling the parts and making other deals by which the business of the plaintiff was practically closed up in the fall of 1948, she consulted with Hon' Timothy C. Quinn, a competent attorney who rendered conscientious advice and who afterward became a circuit judge. He testified:
“Q. Now, Mrs. Striffler on the stand here has testified that you told her after the concellation of the Chevrolet agreement, ‘You have been cancelled out, and nothing can be done about it.’ Is that your recollection of what you told her at that time?
“A. That was the effect of it.”
In a letter (to a third party) dated December 13,. 1948, Mrs. Striffler states :
“In August when it became evident that I was not going to be able to continue the business, Mr. Wilsie wanted me to help him get the franchise.”
Mrs. Striffler testified on cross-examination by Mr. Hamilton (attorney for several defendants):
“Now, during the years, the rest of 1948, 1949, 1950, 1951 and 1952 until I moved here in 1952— during all that time I never made any protest to Mr. Sheldon Wilsie or the Wilsie-Kelly Corporation, or to Mr. Delvin Striffler, to any of them, to the effect that I had been defrauded in connection with this deal, in any way, shape or manner.”
Defendants in each case claim laches for nonassertion 'of plaintiff’s rights for 3 years.
Mrs. Striffler never undertook any management of the business even during all her husband’s serious illness, and never showed any personal qualifications for a dealership or any reason why the plaintiff corporation should be accorded an extension or renewal of the sales agreement with herself as the majority stockholder and therefore the directing power in the plaintiff corporation.
It is to be noted that Mr. Stuart, as local zone manager for Chevrolet division of General Motors, wrote a letter to his superior dated August 27, 1948, which letter Mrs. Striffler in her testimony acknowledged in general to be correct. In the letter, exhibit No 7, Mr. Stuart stated:
“Mrs. Striffler will undoubtedly approach anyone whom we select with an appeal to retain a part interest in the new dealership, but I am convinced that she is reconciled to the fact she cannot secure same.”
The testimony in this case taken in its entirety is highly convincing that the officers of General Motors who had charge of the sales agreement matters of General Motors at Caro, did not regard Mrs. Striffler as fitted to be trusted as a controlling party under a sales agreement to sell the products of General Motors. The whole matter considered, it would have been surprising if it had proven to be the case that General Motors had actually contemplated at any time that she ought so to be entrusted or was capable of carrying on or controlling the activities under any sales agreement.
Mrs. Striffler testified:
“Prior to the death of my husband, I had not taken any part in the business management of this business of selling ears in Caro. Prior to my husband’s death, I had had no business experience.”
Mrs. Striffler makes no showing that she possessed even moderate qualifications to be a local sales manager for a General Motors dealership.
Mrs. Striffler never had a chance to get the sales contracts renewed, either for herself or for the plaintiff corporation, in which she had a controlling interest. It is evident that General Motors never seriously considered a renewal with plaintiff.
The trial court construed the sales agreement with plaintiff corporation as in practical effect a personal agreement with Fred Striffler, now deceased. The trial court found:
“The only thing that she [Mrs. Striffler] could complain of is that Mr. Wilsie did not tell her that he was seeking the agency after it became evident that she could not have it.”
Mrs. Striffler wrote the following letter, exhibit No 23, dated October 1, 1948, to Pontiac division,. General Motors:
“Gentlemen:.
“Please take notice that I — we elect to and do hereby terminate my — our current selling agreement entered into with you, and request that you waive the required 30-days’ notice of such termination so that the same will become effective upon receipt of this notice by you.
“Yours very truly,
“Freo Striffler, Inc.,
“By Helene J. Striffler,
“President.”
August 10,1948, is the date of Wilsie’s application for an agreement with. General Motors which he did not then file with General Motors, but which was filed some time later in September or in October. In the interim, he was cooperating with the efforts of Mrs. Striffler to obtain a renewal for plaintiff corporation of the sales agreement, and only took active means to obtain the sales agreement for himself after Mrs. Striffler and plaintiff corporation were both completely out of the picture.
Wilsie fulfilled his duty of fidelity to trust reposed in him, by cooperating with Mrs. Striffler while she continued in her hopeless efforts and until she had abandoned all efforts at obtaining the Chevrolet agreement.
After defendant Wilsie found that plaintiff corporation and Mrs. Striffler had no chance to get the renewal, he applied about October 1, 1948 for and obtained the sales agreement for himself and his brother-in-law defendant Cecil M. Kelly. From the date of his application, his employment at the plaintiff corporation was solely for the purpose of temporarily carrying on the sales and repair business, until it could be closed out, which occurred on or about November 1, 1948.
In the Delvin Striffler case, plaintiff claims that Delvin Striffler accepted from plaintiff an agency to assist Mrs. Striffler acting for plaintiff in negotiations with General Motors for the Pontiac and Buick sales agreements and that Delvin Striffler did not disclose to Mrs. Striffler his own antagonistic interests. Plaintiff claims that Delvin Striffler was precluded by the agency for plaintiff from acquiring these dealerships for himself.
Defendant Delvin Striffler in his testimony clearly states that in his conversation with Mrs. Helene Striffler, which was about October 24 or 25, 1948, he, Delvin Striffler, having in mind his own desires and intentions and plans of procuring a sales agreement for himself, did not state to Mrs. Helene Striffler that he would accept an agency from plaintiff nor hind himself to accept an agency to procure for plaintiff together with him, such sales agreement. He merely told her that he would talk the matter over with Mr. Garber, the distributor of General Motors in charge of such sales agreements for the Buick division. Mrs. Helene Striffler having been in August, 1948, definitely turned down by the different officers having charge of the sales agreements for sales of Chevrolet, Buick, Pontiac and Cadillac cars, which her deceased husband had operated together, it is altogether unlikely that Delvin Striffler would obligate himself in any way to Mrs. Helene Striffler to act in plaintiff’s interests rather than in his own in the ensuing October. Mrs. Striffler had sought him out as a prospective partner with herself in plaintiff’s business and he never informed her at all that he would consent to be such partner. The agency (on Delvin Striffler’s part) claimed by Mrs. Helene Striffler never existed. Mrs. Helene Striffler never complained to Mr. Garber about his giving the sales agreement of the Buick and Pontiac cars to Delvin Striffler.
To sustain its theory as to the accountability of the defendants in these 2 cases, plaintiff cites numerous authorities for the principle of law that an employee owes to the employer the duty of noninterference in matters involving material interests of the employer, and that the employee owes the duty of noninterference for his own personal benefit. These cases are not applicable to the present case, for as we have seen, the defendants in neither case were guilty of breach of trust.
Furthermore, the cases relied upon by plaintiff in this particular have to do with a duty of the employee respecting his employer’s interests and rights in property, real or personal or both. In contrast therewith, the sales agreement, a “renewal” of which was sought by plaintiff, is to be characterized as follows:
A. The sales agreement was personal with deceased, and based on his personal activity.
B. It was not a right that could be inherited.
C. The actual consideration coming from plaintiff corporation was deceased Striffler’s own personal work, not any right or interest in property, personal or real.
D. The agreement was nonassignable.
E. General Motors was not bound to recognize any nominee of plaintiff or Mrs. Striffler, as successor to deceased.
F. Both Mrs. Striffler personally and plaintiff corporation had been rejected by General Motors prior to application by Wilsie or Delvin Striffler for sales agreements for themselves, and both Mrs. Striffler and the corporation were without any enforceable right to complain of their rejection.
G. Wilsie could not injure his employer in obtaining the distributorship unless a possibility existed that it be available to his employer.
We cite from the opinion of the trial judge the following which we deem to be a fair statement of the law respecting a contract such as that under consideration:
“None of the cases cited by counsel for the plaintiff involved a personal service contract. The only such case is cited by counsel for General Motors (Davis v. Pearce [CCA], 30 F2d 85, 89). In that case the court said:
“ ‘It has already been noted that the real character of the contract was for personal services of Davis and Pearce. These service,s were to be performed in the managerial capacity of overseeing sales of real estate. Whether an expectancy of renewal which has often been held to exist in connection with leases of real estate can be said to exist in cases of contracts for personal services may not be free from donbt. But, conceding that the expectancy did exist when the contract was made and while it was being performed, it would naturally cease to exist when one of the parties died whose personal services were contracted for. And the expectancy of renewal would certainly cease to exist after renewal had positively been refused. At the time when the new contract was made with the neto corporation, the Security Realty Company had neither the right of reneioal, the expectancy of renewal, nor the possibility of renewal.’” (Italics supplied.)
Plaintiff cites Durfee v. Durfee & Canning, Inc., 323 Mass 187 (80 NE2d 522). However, we note in that opinion the following (p 199): “The true basis of the governing doctrine rests fundamentally on the unfairness in the particular circumstances of a director, whose relation to the corporation is fiduciary, ‘taking advantage of an opportunity (for his personal profit) when the interests of the corporation justly call for protection.’ ” (Italics supplied.)
No protection could have assisted Mrs. Striffier in obtaining for herself or for her corporation any benefit of a renewal. Any so-called renewal would not be a renewal in fact; it would in practical effect be a new contract.
The decree appealed from in each case is affirmed. Costs to defendants.
Carr, C. J., and Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred with Reid, J.
Smith, J., concurred in the result,
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Sharpe, J.
This is a suit in equity to restrain defendant from selling bait, renting space for docking boats, and maintaining a parking lot for .his customers on his premises. Defendant is the owner of 2 water-front lots, lots 81 and 82 of Ottawa Shores, a subdivision in Erie township, Monroe-county, Michigan. Plaintiff is an association organized by reason of the provisions contained in the deeds to lot owners, and is incorporated under the-nonprofit laws of the State of Michigan.
The issues arising out of this case were created by virtue of defendant constructing 2 docks which extend from his shore line approximately 115 feet into the Ottawa river. The docks- are' used in connection with defendant’s business. Ottawa Shores was platted by the Pheatt heirs and recorded in July, 1947. The .streets in the platted property were-dedicated to the use of the property owners. In 1939 the Pheatt heirs, through Richard Pheatt, their agent, rented a site to defendant who built a cottage upon or in the area as was later subdivided as lots 81 and 82 Ottawa Shores. At the time defendant built his cottage he was working for a brewery. In 1944 defendant made his cottage his permanent place of residence. At that time defendant had built a dock extending into the river. He started the sale-of minnows in 1945, and kept the minnows out in the river in a tank at the end of his dock. About 90% of defendant’s customers come by water. A few cars parked on his property from 1945 to 1948, and lie now maintains a parking lot for his customers. He has had a sign erected advertising the sale of bait since 1945. He has a license for the sale of minnows. In 1948 defendant built another dock extending out into the river. On November 5, 1947, defendant purchased the lots in question and continued his business - of renting boats and selling bait until the present time. The deed received by defendant contained the following provisions:
“The grantor herein by accepting this deed shall ipso facto become a member of Ottawa Shores Home Owners Association, an unincorporated association composed of the owners of lots in Ottawa Shores.
“In said association each member thereof shall be entitled to 1 vote for each lot owned by him or her, and said association shall act through a board ■of trustees to be elected by the association of such number and for such term as it may determine.
“Said board of trustees shall have authority, except as limited by the association, to:
“(a) Adopt general rules and regulations (not inconsistent with items 1 to 6 above) which said board deems to the best interests of the lot owners as a whole and reasonably so designed which shall be binding upon the lot owners and each of them.”
Subsequently deeds were issued to other owners in the subdivision which contained the following provisions:
“The grantee herein by accepting this deed shall ipso facto become a member of Ottawa Shores Home •Owners Association, a corporation to be formed under the laws of Michigan for and composed of the owners of lots in Ottawa Shores.
“In said association each member thereof shall be entitled to 1 vote for each lot owned by him or her, and said association shall act through a board ■of trustees to be elected by the association of such number and for such terms as it may determine.
“Said board of trustees shall have authority, except as limited by the association':
“(a) To adopt general rules and regulations (not inconsistent with items 1 to 6 above) which said board deems to the best interests of the lot owners-as a whole and reasonably so designed which shall be binding upon the lot owners and each of them.”
On June 16, 1951, Ottawa Shores Home Owners Association was organized, and on July 2, 1951, it was incorporated. Defendant is a member of the-association and paid the initial fee of $12.50 per lot. At the time the instant suit was commenced,, about 35 lots were deeded to individual home owners.. The approximate value of the combined cottages erected is between $150,000 and $200,000. None of the homes are built as commercial structures. All. of such cottages are residences.
The cause came on for trial, and at its conclusion* the court entered a decree dismissing plaintiff’s bill of complaint, holding that defendant’s real estate-should not be limited to residential use, and that his carrying on of commercial uses is a proper use of the premises. In an opinion the trial court stated:
“The Court understands it is the theory of the-plaintiff in this case that this deed read in its entirety should, by implication, be held by the court to include the restriction against the use of this-property for commercial purposes. The court has examined the deed and the various restrictions contained therein, and applying the rules of construction as they exist in this State the court is of the-opinion that the deed does not restrict the use of this property solely to residential purposes.
“There is another matter that in the opinion of the court is not too important, but it has apparently entered into the theory of the plaintiff herein: that is, that the deed required the defendant when he- received this deed to become a member of the Ottawa Shores Home Owners Association to be formed; that such association was subsequently formed, and that association in its articles of association reserved the right to restrict the entire plat area to residential purposes. I do not think that that is tenable, for 2 reasons: First, under the evidence in this case, if it is a sustainable theory, all the corporation ac-quired was the power to do that, which power has not been exercised prior to the institution of this -suit by act of the corporation; secondly, if the interpretation of the deed, as the court construes the plaintiff’s position, means that he received the deed, that his occupancy and use of the premises conveyed under the provisions of the deed could be limited by the corporation without consent of this defendant, and that the extent of the occupancy and the consequent ability to alienate the property and the number of prospective purchasers might be limited by changing the character of usage of this property —The court is of the opinion that that is such a provision that is entirely contrary to the conveyance Ly warranty deed and the title in fee simple, and that it has no place in the deed and must be considered as void, as repugnant to the title in fee simple.”
Plaintiff appeals and urges that the trial court was in error in holding that defendant’s deed did not preclude the sale of minnows, the renting of boat spaces and maintaining a parking lot for customers on his property.
The record shows that the Pheatt heirs on November 5, 1947, conveyed to defendant lots 81 and 82. The deed contained various provisions of which the following are material:
“Provided however that said premises and all other lots in the plat of Ottawa Shores shall be held, owned and occupied subject to the following restric tions, covenants and agreements which shall innre to the benefit of each and all of said lots, to-wit:
“1. No dwelling house shall be constructed on any lot other than one well and substantially constructed, one reasonably designed for all season use and one equipped with complete indoor modern toilet facilities and with modern, efficient septic tanks.
“2. A well-constructed garage may be built on any lot, but no other structure shall be erected on any other lot excepting such as are approved by Ottawa Shores Home Owners Asociation.”
It is the theory of defendant that he built his dwelling in accordance with the provisions contained in his deed, and we note that plaintiff does not make any claim of violation insofar as the dwelling is concerned. Defendant urges that the restrictive covenants contained in the deed do not forbid commercial use of the property.
It is the general rule that restrictions upon the free alienation of property are not favored by the law and are usually strictly construed against those seeking to enforce them. Restrictions apply not only to the kind of buildings to be erected, but, also, to the use of the property, see Boston-Edison Protective Ass’n v. Goodlove, 248 Mich 625; Bohm v. Rogoff, 256 Mich 199; Nerrerter v. Little, 258 Mich 462.
Do. the restrictions in defendant’s deed apply to-structures in the Ottawa River built by defendant? The answer to this question may be found in Grand Rapids Ice & Goal Co. v. South Grand Rapids Ice & Goal Co., 102 Mich 227, 236 (25 LRA 815, 47 Am St Rep 516), where we said:
“Unless the contrary appear, a grant of land bounded by a watercourse conveys riparian rights {Richardson v. Prentiss, 48 Mich 88); and the title of the riparian owner extends to the middle line of the lake or stream.”
See, also, Sewers v. Hacklander, 219 Mich 143.
From the above authority it is manifest that defendant’s docks are to be considered as a part of defendant’s lots, and as such are structures.
It is a general rule that where the intent and meaning of restrictions are not clear, they may be ■construed in the light of surrounding circumstances and general plan under which the restrictive district was platted and developed. In Holderness v. Central States Finance Corporation, 241 Mich 604, 607, we said:
“In placing a proper construction upon these restrictions, if there can be said to be any doubt about their exact meaning, we must have in mind the sub-divider’s intention and purpose. Weiss v. Zack, 237 Mich 10. The restrictions in question must be read as a whole and construed in the light of the general plan under which the restrictive district was platted and developed. Tabern v. Gates, 231 Mich 581.”
See, also, Library Neighborhood Ass’n v. Goosen, 229 Mich 89.
In the case at bar defendant purchased his property with knowledge that all lots in the platted property would be owned and occupied for residential purposes, subject to the restrictions contained in his deed.' It clearly appears that Ottawa Shores is a residential area. None of the homes are built for commercial purposes. It follows that the use defendant is making of his premises is in violation of the restrictions imposed upon all lots in Ottawa Shores.
Defendant urges that plaintiff did not raise the question of the docks violating the restriction until the cause was appealed to the Supreme Court.
We note that paragraph 14 of plaintiff’s bill of complaint reads as follows:
“That the defendant herein, not content with attempting a modified or limited violation, has now extended his prospective operations for the summer of 1952, by having built 2 great lengths of floating-dock, projecting outward into the stream, and into the riparian waters in front of the plat and his premises. These docks are planned by him and intended by him, to be used as parking docks and as. increased livery activities, to the extent that his capacity of serving the general public in this manner, has now been practically doubled over which he practiced in the season of 1951. He now has the capacity that could well accommodate approximately 50 such transients daily and semidaily, who all come by automobile, and who make certain noises, and disturbances common to those who talk loudly,, make such unnecessary noise with their automobiles and their outboard and other water motors, and who shout and otherwise celebrate as they go about their fishing, hunting, and other sporting and recreational activities.”
In plaintiff’s reasons and grounds for appeal we find:
“That the trial court erred in finding that the deed in question does not contain any restrictions limiting the use of the property to residential purposes.
“That the trial court erred in finding that defendant’s real estate herein involved should not be limited to residential use.
“That the trial court erred in finding that defendant’s carrying on of commercial uses thereon, is proper.”
In our opinion the issue as to the use of the docks, was before the trial court and properly before us on appeal.
The decree is reversed and a decree will be entered in the circuit court of Monroe county enjoining de fendant from using Ms docks for commercial purposes. Plaintiff may recover costs.
Carr, C. J., and Butzel, Smith, Boyles, Keid, and Kelly, JJ., concurred with Sharpe, J.
Dethmers, J., concurred in the result. | [
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Reid, J.
On August 12, 1952, plaintiff Curtis Jernigan filed a bill of complaint for divorce in the superior court for the city of Grand Rapids. The prosecuting attorney of Kent county entered his appearance on August 18, 1952. On October 1,1952, defendant filed her answer and cross bill of complaint for divorce. On January 19, 1953, a decree of divorce was entered granting a divorce to defendant on her cross bill and giving custody and control of the minor child of the marriage to defendant, with visitation rights to plaintiff, and award of $15 per week to defendant for support of child. August 6, 1953, defendant petitioned the court for an order to show cause why the decree of divorce should not be amended, waiving the jurisdiction of the minor child to the probate court for the county of Allegan. The defendant at the time of the granting of the divorce was a resident of Allegan county and the support money for the child was ordered in the decree to be mailed to her at her address in Allegan county. September 21, 1953, the trial court made an order amending the decree, waiving jurisdiction of the child to the probate court for the county of Allegan. The prosecuting attorney of Kent county did not file any appearance in the proceeding for the amendment of the decree and no proof of service is on file of notice requiring him to enter an appearance in that particular proceeding. The order amending the decree does not recite any recommendation by the friend of the court and there is not on file in the lower court any showing that there was an investigation by the friend of the court, of the matter of waiving jurisdiction to probate court.
Plaintiff on December 9, 1954, filed a petition with the superior court of the city of Grand Rapids for the court to assume jurisdiction over the minor child, declare void the adoption of the minor child of the parties which had occurred in the meantime with approval of the Allegan county probate court, to restore to plaintiff his visitation rights, and to. restore the name of the minor child to Ernest Dale Jernigan. The opinion of the trial court was filed February 14, 1955, and based upon the opinion, the order of the court dismissing plaintiff husband’s petition for reassumption of jurisdiction was filed March 4, 1955. For the purpose of indicating recited facts, we quote from the trial court’s opinion the following:
“On August 6, 1953 the defendant filed a petition wherein she alleged that the plaintiff was in arrears in the payment of support in the sum of $360, and further stated that she had remarried and prayed that the decree be amended, waiving jurisdiction of the minor child to the probate court of Allegan county where the child then resided. The petition and tibe order to show cause was served on the plaintiff in the Kent county jail where he was then detained. The hearing was noticed for September 4th and came on to be heard. Plaintiff was not present, he being then still in. the Kent county jail. Thereafter on motion of counsel for the defendant, the decree was amended as follows:
“ ‘That the jurisdiction of Ernest Dale Jernigan, the minor child of the parties hereto, be and is hereby waived to the probate court for the county of Allegan for appropriate disposition.
“ ‘It is further ordered and this court does deterihine from the testimony and records and files that there is now due and owing for back alimony the sum of $450 from the plaintiff and cross defendant, Curtis Jernigan to the defendant and cross plaintiff, Edna Jernigan.’
“On October 22,1953, the probate court of Allegan county filed a petition therein alleging that the minor child was without support which petition was filed under and by virtue of the provisions of chapter 12 of PA 1939, No 288, as amended, and issued a summons directing the plaintiff and defendant to appear in said court on October 30, 1953. A copy of the summons was served on the plaintiff and he had by that time provided bail and was at liberty thereon.
“It appears that plaintiff consulted his attorney and that the proceedings were adjourned but that on November 6, 1953, the probate court terminated plaintiff’s rights. That thereafter a petition was filed in that court by the defendant and her husband to adopt said child, and on February 4, 1954 an order of adoption was entered. That thereafter and on December 9, 1954, plaintiff filed his petition in this court, setting forth the above proceedings and alleging that the probate court of Allegan was without jurisdiction on the following grounds:
“1. That the order waiving jurisdiction was void as no notice of the filing of the petition was served on the prosecuting attorney of Kent county.
“2. That this court could not waive jurisdiction to Allegan county but only to Kent county.
“3. That the adoption proceedings in Allegan county are void.
“It is therefore apparent that what the plaintiff is attempting to do in this petition is to attack collaterally the proceedings in the prohate court of Allegan county by having this court determine that the waiver of jurisdiction was void upon the basis of the reasons above set forth.”
CL 1948, § 552.45 (Stat Ann § 25.121) provides, in part:
“It shall be the duty of said prosecuting attorney to enter his appearance in said cause, and when, in his judgment, the interest of said children or the public good so requires, he shall introduce evidence and appear at the hearing and oppose the granting of a decree of divorce.”
The statute, CL 1948, § 552.16 (Stat Ann 1953 Cum Supp § 25.96) provides, in part, as follows:
“That the court is hereby authorized to waive jurisdiction of any minor children under the age of 17 in the decree of divorce, or after the decree of divorce, to the probate court of the county to be governed by the laws of this State with respect to dependent and neglected children under the age of 17 years.”
It is the claim of the plaintiff Curtis Jernigan that the words, “waive jurisdiction of any minor children under the age of 17 in the decree of divorce, or after the decree of divorce, to the probate court of the county,” mean, of the county in which the circuit (or superior) court is located. Plaintiff husband contends that the failure to notify the prosecuting attorney for Kent county of the proceeding to amend the decree and failure to have an investigation as to the necessity for waiver of jurisdiction to probate court, render the order amending the decree to waive jurisdiction to the probate court of Allegan county, null and void and of no force or effect.
■It is to be noted that the statute does not specifically say, the county in which the divorce court is situated, or, in which the divorce court is exercising its jurisdiction in the particular, case.
In the instant case, on the trial of the main case, the prosecuting attorney of Kent county had appeared. When the decree of divorce was entered, the residence of the child was legally transferred by that decree from Kent county to Allegan county, .where his mother was residing to whom his custody •was by that decree granted.
We consider that the words “the county” in the quoted statute can fairly be construed to mean, the county in which the child is a resident. If by any means the residence of the mother had been in a distant part of the State, then the circumstances surrounding the child’s care, custody and maintenance and as he grew older, concerning his conduct, should be more properly under the surveillance of the probate court of the county in which he was a legal resident. The circumstances of the child and all that concern his welfare would probably be more readily and more accurately determined -in the county of his residence than in some other county in which the divorce decree had been granted. It was properly within the discretion of the trial court to determine whether the probate court for Allegan county was the appropriate court to which he should waive .jurisdiction.
In Bishop v. Bishop, 286 Mich 567, in a proceeding to modify a divorce decree where interests of minor were involved, we say, at p 570:
“Notice should have been given to the prosecuting attorney and ample time afforded him to investigate and advise the court.”
See, also, McClellan v. McClellan, 290 Mich 680 (127 ALR 731), in the per curiam, p 682.
See, also, Geark v. Geark, 318 Mich 614, in which case we say, p 618:
“No notice was given to the prosecuting attorney. He should have been notified of the hearing to modify the decree and afforded opportunity for investigation. Bishop v. Bishop, 286 Mich 567. These children are wards of the court and the right of the State is superior to that of the parents. Wallace v. Wallace, 310 Mich 30.”
See, also, Mayo v. Mayo, 331 Mich 96 (syllabus 3):
“Notice to the prosecuting attorney of petition to amend a decree of divorce as to the custody of a minor child is a mandatory statutory requirement.”
Notice to the prosecuting attorney of Kent county was necessary to the validity of the proceeding to waive jurisdiction. The question' of collateral attack on the order of the probate court of Allegan county is not available to defendant because the jurisdictional defect of not notifying the Kent county prosecutor renders the order of the trial court void and such jurisdictional question can be raised at any time. See In re Ives, 314 Mich 690.
The order amending the decree of divorce is reversed. The matter is remanded to the trial court with instruction to set aside its order waiving jurisdiction of the child and resume the hearing on the petition for waiver of such jurisdiction after sufficient notice to the prosecuting .attorney for Kent county.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred.-
Now Chapter 12A, see CL 1948 and CLS 1952, §§ 712A.1-712A.28 (Stat Ann 1951 Cum Supp §§ 27.3178[598.1]-27.3178[598.28]).—Re-porter. | [
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Kelly, J.
We are reviewing by petition for certiorari and habeas corpus. After Edward M. Mahon was found guilty of gross indecency, a petition for examination of him by psychiatrists was filed by the Wayne county prosecuting attorney. The court appointed a psychiatric commission, and on February 11, 1955, this commission filed its report, and a copy was forwarded to Mahon’s counsel on February 15, 1955.
Proceedings on the petition were commenced before the recorder’s court on March 1, 1955. Dr. Wallaert, one of the psychiatric commission, was sworn, examined and cross-examined and after identifying the commission’s report and reading same to the court, Mahon’s counsel objected on the ground that he was not provided with notice of his right to a jury trial.
CDS 1954, §780.505 (Stat Ann 1954 Eev §28.967 15]), provides that:
“Upon a hearing held for that purpose the court without a jury, unless a jury is demanded within 15 days after the filing and service upon the accused or his counsel of said reports with notice thereto attached, to the defendant, of his right to demand a jury trial, shall ascertain whether or not such person is a criminal sexual psychopathic person.”
The court denied Mahon’s motion for a jury trial,, stating that the failure to attach a notice of his right to jury trial did not affect the jurisdiction of the court and that his motion was untimely, being made after the case was called and testimony taken. The court found Mahon to be a criminal sexual psychopath and ordered him committed.
Mahon contends that the provision of the above-mentioned statute requiring notice to the accused of his right to demand a jury trial is mandatory and that no trial could be had until 15 days after service of such notice, unless accused, within said 15 days, demanded a jury trial or within said period waived his right thereto in writing.
In In re Myrtle Davis, 277 Mich 88, 90, 91, we said:
“ ‘Proceedings taken for an adjudication of insanity against an individual should require the strictest compliance with all the statutory requirements provided. The determination affects the rights of the individual to the enjoyment of life, liberty, and property. Courts will ever protect the rights of the individual who is so unfortunate as to be called upon to make a showing to maintain his or her mental integrity. * * *
“ ‘All persons are presumed to be sane, and in every proceeding the burden of proving insanity rests upon the one challenging the sanity of the individual.’ ”
Mahon did not formally waive his right to trial by jury. He made his demand for a jury trial within the 15 days after service of the report of the commission. The report filed with his counsel on February 15, 1955, did not meet the statutory test in regard to notice of right to a trial by jury and he did not waive his right to demand a jury. The trial court erred in denying Mahon a jury trial.
Edward M. Mahon is remanded to the custody of the sheriff to await trial by jury.
Carr, C. J., and Bijtzel, Smith, Sharpe, Boyles,. Beid, and Dethmers, JJ., concurred. | [
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Sawyer, J.
"Truth is a torch that gleams through the fog without dispelling it.”
—Claude Helvetius, De l’Esprit.
In this heated dispute, the trial court granted summary disposition in favor of defendants on plaintiff’s claims of libel and invasion of privacy by false light. Plaintiff now appeals and we affirm.
Plaintiff alleges that she was libeled and cast in a false light by an article written by defendant Whitall which appeared in the Sunday supplement of the Detroit News on November 11, 1984. The article was entitled "Hot Locks: Let Shila burn you a new ’do.” The article was accompanied by two photographs, one depicting plaintiff performing her craft on a customer identified as "Barbara X” and the second showing Barbara X and her dog, identified as "Harry X,” following completion of the hairdressing. Central to the article was the fact that plaintiff used a blowtorch in her hairdressing endeavors. According to the article, plaintiffs blowtorch technique was dubbed "Shi-lit” and was copyrighted. The article also described two dogs, Harry and Snowball, the latter belonging to plaintiff, noting that the canines have had their respective coats colored at least in part. The article also indicated that the blowtorch technique had been applied to both dogs. Additionally, the article described plaintiffs somewhat unusual style of dress, including a silver holster for her blowtorch and a barrette in her hair fashioned out of a $100 bill. Much of the article devoted itself to plaintiffs comments concerning her hairdressing and the trend of what, at least in the past, had been deemed unusual in the area of hair styles.
Plaintiffs rather brief complaint alleges that the article, when read as a whole, is false, misleading and constitutes libel. More specifically, the complaint alleges that the article used the terms "blowtorch lady,” "blowtorch technique” and the statement that plaintiff "is dressed for blowtorch-ing duty in a slashed-to-there white jumpsuit” without any factual basis and as the result of defendants’ intentional conduct to distort and sensationalize the facts obtained in the interview. The complaint further alleges that the article falsely portrayed plaintiff as an animal hairdresser, again as part of a deliberate action by defendants to distort and sensationalize the facts. In her brief on appeal, plaintiff also takes exception to her being cast as an animal hairdresser and claims as inac curate the portrayal in the article that she does "mutt Mohawks for dogs” and the reference to "two canines who have been blowtorched.”
Defendants brought their motion for summary disposition pursuant to both MCR 2.116(C)(8), failure to state a claim, and MCR 2.116(C)(10), no genuine issue of material fact. Unfortunately, the trial court’s ruling does not identify under which subrule summary disposition was granted. While the trial court’s failure to identify which subrule was relied upon complicates this appeal, our review of the case leads us to believe that the issue is more properly analyzed under subrule 10, no genuine issue of material fact. Accordingly, we will analyze the issue on that basis.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Stenke v Masland Development Co, Inc, 152 Mich App 562; 394 NW2d 418 (1986). In ruling on this motion, the trial court must consider not only the pleadings, but also depositions, affidavits, admissions and other documentary evidence, MCR 2.116(G)(5), and must give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Summary disposition is appropriate under this subrule only if the court is satisfied that it is impossible for the nonmoving party’s claim to be supported at trial because of a deficiency which cannot be overcome. Hetes v Schefman & Miller Law Office, 152 Mich App 117; 393 NW2d 577 (1986). We begin by noting that plaintiff failed to comply with MCR 2.116(G)(4), which requires that a party opposing a motion brought under subrule 10 not rest merely upon the allegations or denials of his pleadings, but come forward with evidence to establish the existence of a material factual dispute. If the nonmoving party fails to establish that a material fact is at issue, the motion is properly granted. Stenke, supra. As noted by defendants and admitted by plaintiff at the motion hearing, plaintiff has failed to file any response to defendants’ motion and has come forward with no evidence to support a finding that a genuine issue of material fact exists.
The elements of defamation were stated by this Court in Sawabini v Desenberg, 143 Mich App 373, 379; 372 NW2d 559 (1985):
The elements of a cause of action for defamation are: "(a) a false and defamatory statement concerning plaintiff; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod)”. Postill v Booth Newspapers, Inc, 118 Mich App 608, 618; 315 MW2d 511 (1982), lv den 417 Mich 1050 (1983), citing Restatement Torts, 2d, § 558; Curtis v Evening News Association, 135 Mich App 101, 103; 352 NW2d 355 (1984); Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583; 349 NW2d 529 (1984).
See also Rouch v Enquirer & News of Battle Creek, 427 Mich 157, 173-174; 398 NW2d 245 (1986).
The Sawabini Court further commented on the appropriateness of dismissing a defamation claim by summary disposition:
The court may determine, as a matter of law, whether the words in question, alleged by plaintiff to be defamatory, are capable of defamatory meaning. See, e.g., Ledsinger v Burmeister, 114 Mich App 12, 21; 318 NW2d 558 (1982). Where the words are, as a matter of law, not capable of carrying a defamatory meaning, summary judgment under GCR 1963, 117.2(1) is appropriate. See Lins v Evening News Association, 129 Mich App 419, 422; 342 NW2d 573 (1983).
"A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Nuyen v Slater, 372 Mich 654, 662, fn; 127 NW2d 369 (1964); Ledsinger v Burmeister, 114 Mich App 12, 21; 318 NW2d 558 (1982).” Swenson-Davis v Martel, 135 Mich App 632, 635-636; 354 NWd 288 (1984), lv den 419 Mich 946 (1984). In assessing whether language is defamatory, the circumstances should be considered. Ledsinger v Burmeister, supra. [143 Mich App 379-380.]
In determining whether an article is libelous, it is necessary to read the article as a whole and fairly and reasonably construe it in determining whether a portion of the article is libelous in character. Sanders v Evening News Ass’n, 313 Mich 334, 340; 21 NW2d 152 (1946); Croton v Gillis, 104 Mich App 104, 108; 304 NW2d 820 (1981).
Reading the article as a whole, we believe that it is substantially true; therefore plaintiffs complaint lacks an essential element of her defamation claim, namely falsity. In looking at plaintiff’s specific allegations of falsity, for the most part we find no falsehood. Considering as a group the various references to plaintiff’s using a "blowtorch” in hairstyling, we note that The Random House College Dictionary, Revised Edition (1984), defines "blowtorch” as follows:
[A] small portable apparatus that gives an extremely hot gasoline flame intensified by air under pressure, used esp. in metalworking.
In looking at the photographic exhibits filed by defendants, we believe that the instrument used by plaintiff in her profession can accurately be described as a blowtorch. Accordingly, while the use of the term "blowtorch” as an adjective in connection with references to plaintiff or her hairdressing technique may have been colorful, it was not necessarily inaccurate and certainly not libelous. As for the reference that plaintiff was "dressed for blowtorching duty in a slashed-to-there white jumpsuit,” we have examined the photographic exhibits submitted by defendant at the motion hearing and we conclude that reasonable minds could not differ in reaching the conclusion that plaintiff did, in fact, wear a jumpsuit "slashed-to-there.”
Finally, while having disposed of the allegedly libelous claims contained in the complaint, we briefly turn to the additional allegations of false statement listed in plaintiff’s brief on appeal. In her brief, plaintiff claims that defendants inaccurately described her as being a hairdresser for dogs, giving dogs a Mohawk cut, and using a blowtorch on the dogs. While it appears that plaintiff did do hairdressing on dogs, it is not necessarily certain at this point that she did, in fact, use the blowtorch on the dogs. However, as noted above, plaintiff filed no response to the motion for summary disposition in the trial court and, thus, presented no affidavits or other evidentiary showings that the statements in the article were false. Thus, there has been no showing by plaintiff that the statements relating to the dogs were false.
Moreover, inasmuch as it appears undisputed that plaintiff at least dyed the fur of the dogs, which would constitute hairdressing of dogs, we are not persuaded that the article, when read as a whole, becomes libelous because of an inaccurate reference to using the blowtorch on the dogs. This is particularly true since, by plaintiff’s conduct, she asserts that blowtorching is a safe practice when performed on humans. Therefore, it would appear that, from plaintiff’s perspective, blow-torching would also be safe on dogs, even if she did not engage in such a practice. Furthermore, her claim that she was libeled by labelling her as both a dog hairdresser and a human hairdresser is unsupported in light of the tinting of the dogs’ hair. Since the undisputed factual showing indicates that plaintiff did blowtorch her human clientele and style her pooch’s fur, we will not split hairs at this point to conclude that the statement that she used her blowtorch on dogs, even if inaccurate, is libelous.
For the above-stated reasons, we conclude that, when reviewing the article and accompanying photographs as a whole, the article was not libelous.
On appeal, plaintiff also argues that the article invaded her privacy by casting her in a false light. The Sawabini Court, supra at 380-382, discussed the tort of placing a person in false light:
False light invasion of privacy is described in Ledl v Quik Pik Stores, supra, as:
" '[pjublicity which places plaintiff in a false light in the public eye’. Beaumont v Brown, 401 Mich 80, 95, fn 10; 257 NW2d 522 (1977). In discussing what was necessary to state a cause of action for invasion of privacy, this Court stated in Beed v Pontin [sic], 15 Mich App 423, 426; 166 NW2d 629 (1968):
" 'When there has been no misappropriated use of, or physical intrusion into, the private life, employment, property, name, likeness, or other personal place or interest, so that the privacy action is premised solely upon a disclosure of secret or confidential matter or upon being put publicly in a "false light”, then if (without deciding) mere words of mouth can never be actionable (except by a slander action) the oral communication must be broadcast to the public in general or publicized to a large number of people.’ ” 133 Mich App 591-592.
See Restatement Torts, 2d, § 652 E, comment a. Furthermore, comment b to § 652 E, p 395, explains that:
"The interest protected by this section is the interest of the individual in not being made to appear before the public in an objectionable false light or false position, or in other words, otherwise than as he is. In many cases to which the rule stated here applies, the publicity given to the plaintiff is defamatory, so that he would have an action for libel or slander .... In such a case the action for invasion of privacy will afford an alternative or additional remedy, and the plaintiff can proceed upon either theory, or both, although he can have but one recovery for a single instance of publicity.
"It is not, however, necessary to the action for invasion of privacy that the plaintiff be defamed. It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position. When this is the case and the matter attributed to the plaintiff is not defamatory, the rule here stated affords a different remedy, not available in an action for defamation.”
As indicated in the above discussion under the theory of defamation, with the exception of certain references to hairdressing dogs, none of the conduct attributed to plaintiff in the article was false. Therefore, it could not place plaintiff in a false light. With reference to the assertions concerning her hairdressing of dogs, we do not believe that a rational trier of fact could conclude that, even if inaccurate, those references are unreasonable or put plaintiff in a position of receiving highly objectionable publicity. The article did not indicate that plaintiff harmed, injured or inflicted pain upon the dogs. Rather, at most, the article inaccurately stated that plaintiff used techniques on the dogs, such as blowtorching, which she also used on humans. While the article may have overstated the techniques that she uses on dogs, inasmuch as she advocates those techniques for use on humans, we cannot conclude that plaintiff would believe it highly objectionable that those techniques also be performed on dogs. Similarly, she cannot have been placed in false light as being both the hairdresser of dogs and humans inasmuch as the tinting of the canines’ fur would constitute hairdressing. Thus, it would not be placing plaintiff in a false light to indicate that she served both dog and man. Accordingly, we believe that summary disposition was also properly granted on the false light claim.
In summary, although the manner in which the present article was written may have singed plaintiff’s desire for obtaining favorable coverage of her unique hairdressing methods, we cannot subscribe to the view that it was libelous. We believe that the trial court aptly summarized this case when it stated that "this Court is of the Opinion that the Plaintiff sought publicity and got it.” Indeed, it would appear that the root of plaintiff’s dissatisfaction with defendants’ article is that the publicity plaintiff received was not exactly the publicity she had in mind. While the publicity may have been inflammatory from plaintiffs vantage point, we do not believe it was libelous. At most, defendants treated the article more lightheartedly than plaintiff either anticipated or hoped. While this may give plaintiff cause to cancel her subscription to the Detroit News, it does not give her cause to complain in court.
Affirmed. Costs to defendants.
Sic. While this is not an intellectual property case, we note in passing that it would seem more reasonable that the blowtorch technique would be subject to patent law and the term “Shi-lit” would constitute a trademark, rather than coming under the terms of copyright law. However, we leave it to a more appropriate forum to decide this burning issue if it should ever become relevent.
We acknowledge that The Random House Dictionary’s definition did not list hairdressing as an example. However, we are not persuaded that the dictionary’s editors intended their examples to be exclusive. See also "blowtorch,” Webster’s New World Dictionary, 2d College Edition, (1976). | [
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Per Curiam.
Defendants appeal by leave granted from the circuit court’s order denying their motion for partial summary disposition as to plaintiffs’ premises-liability claim, MCR 2.116(C)(8).
The basis for plaintiffs’ complaint is an incident that occurred on October 1, 1984, in and around defendants’ bar. Plaintiffs allege that the decedent, Jerry Locklear, and defendant John Stinson were business invitees of defendant bar and became involved in an altercation while inside the bar. Plaintiffs allege that employees of the bar, acting with actual notice of this dispute, ejected Stinson from the bar but allowed him to wait in the parking lot for the decedent.
When the decedent left the bar, he and Stinson allegedly continued the altercation, after which the decedent fled in his car with Stinson chasing him in his own vehicle.
The decedent’s car collided with that of a third party on Van Dyke Avenue. Stinson stopped at the scene and the confrontation between the two men allegedly resumed, whereupon the decedent allegedly stabbed Stinson with a knife, fled in his vehicle, and became involved in a fatal crash.
Defendants’ summary disposition motion was based on the premise that no duty was owed to the decedent as a business invitee since he had left the bar’s premises when the fatal accident occurred.
The trial judge denied the motion, ruling that the claim he recognized as viable was the alleged breach of duty owed to the decedent while he was on the premises, that being his ejection from the bar into a dangerous situation in the parking lot about which defendants knew or should have known. We reverse.
In reviewing a grant of summary disposition under MCR 2.116(C)(8) for failure to state a claim upon which relief can be granted, this Court is obligated to accept as true all well-pled facts and to determine whether plaintiffs’ claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. The motion tests the genuineness of a claim or defense by challenging the legal, not factual, adequacy of the pleadings. Bolton v Jones, 156 Mich App 642, 647-648; 401 NW2d 894 (1986).
A prima facie case of negligence requires proof of four elements: (1) a duty owed to the plaintiff by the defendant; (2) breach of duty; (3) causation; and (4) damages. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977). The primary element with which we are concerned here, that of "duty,” has been defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct towards another. Hetterle v Chido, 155 Mich App 582, 587; 400 NW2d 324 (1986). Whether the law will impose such an obligation depends upon the relationship between the actor and the injured person. Moning, supra, pp 438-439. Determining whether there exists a duty under a particular set of circumstances requires an examination of the reasonableness of the risk created by the defendant’s conduct. Meyers v Robb, 82 Mich App 549, 553; 267 NW2d 450 (1978), lv den 403 Mich 812 (1978).
The question whether a duty exists is one of law for the court’s resolution. Sponkowski v Ingham Co Rd Comm, 152 Mich App 123, 127; 393 NW2d 579 (1986). In a negligence case, summary disposition is properly granted pursuant to MCR 2.116(C)(8) if it is determined as a matter of law that defendant owed no duty to the plaintiff. New Hampshire Ins Group v Labombard, 155 Mich App 369, 371; 399 NW2d 527 (1986).
It is undisputed that the decedent was defendants’ business invitee. A business invitor owes a duty to invitees to maintain the premises in a reasonably safe condition, exercising due care to prevent situations which it knows or should know might result in injury. Askew v Perry, 131 Mich App 276, 278-279; 345 NW2d 686 (1983).
In Gorby v Yeomans, 4 Mich App 339, 343; 144 NW2d 837 (1966), this Court articulated the duty of a bar to its customers when it adopted the following rules of liability:
The duty of a tavern keeper to protect a patron from injury by another arises only when one or more of the following circumstances exists: (1) a tavern keeper allowed a person on the premises who has a known propensity for fighting; (2) the tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others; (3) the tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others; (4) the tavern keeper failed to stop a fight as soon as possible after it started; (5) the tavern keeper failed to provide a staif adequate to police the premises; and (6) the tavern keeper tolerated disorderly conditions.
Unlike the decedent in the instant case, the plaintiff in Gorby, supra, was injured while on the premises of the bar. On the facts of that case, this Court affirmed a jury verdict in plaintiffs favor, finding that the jury could have found one or more of the foregoing duties, breach of which was the proximate cause of plaintiffs injuries.
In this case, however, the decedent was injured away from the premises. Plaintiffs would have us extend defendants’ duty as a business invitor by alleging that a breach of duty on the premises was the cause of the decedent’s death away from the premises.
We decline to do so; when the decedent left the premises and was no longer on the property owned or controlled by the defendants, the duty ended. Swartz v Huffmaster Alarms Systems, Inc, 145 Mich App 431, 437; 377 NW2d 393 (1985).
In this case, the trial judge erred by denying defendants’ motion for partial summary disposition. Accordingly, the denial of defendants’ motion is reversed.
Reversed.
Plaintiffs alleged in Count n of the complaint that defendants breached a duty owed to the decedent by:
a) Failing to provide a staff adequate to police the premises and parking lot;
b) Failing to prevent Defendant Stinson from waiting in the parking lot for Plaintiffs decedent;
c) Failing to remove Defendant Stinson from the parking lot after his conduct had become obstreperous and aggressive to such a degree that said Defendants knew, or should have known, that Defendant Stinson posed a danger to others;
d) Ejecting Plaintiffs decedent, without first asserting [sic] that Defendant Stinson had left the area. | [
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Wahls, P.J.
Defendants,' Richard Otto, doing business as Riverland Equities, and Dennis M. Hayes, appeal by leave granted from a circuit court order affirming a district court’s grant of summary judgment to plaintiff, Richard Heligman. The district court found that Otto and Hayes had failed to register under the Uniform Securities Act, MCL 451.501 et seq.; MSA 19.776(101) et seq., as a securities broker-dealer and a securities agent, respectively, as required by MCL 451.601; MSA 19.776(201), and were therefore liable to plaintiff under MCL 451.810(a); MSA 19.776 (410)(a) for certain losses incurred in connection with a commodity contract.
In October or November, 1981, Otto, as president of Riverland Equities, entered into a "tentative sales agreement” with Lawrence K. Koons of the Silver Corporation of America. Under the agreement, Riverland Equities was to handle cash sales of silver bullion from Silver Corporation in return for a commission. In December, 1981, or January, 1982, Otto approached Hayes with the proposition of establishing a sales organization to facilitate sales, and in February, 1982, plaintiff, Richard Heligman, gave a $9,600 check to Hayes made payable to Riverland Equities for the purchase of 1,000 troy ounces of silver. Instead of taking possession of his purchase, plaintiff chose to leave the silver in the possession of the Silver Corporation. Plaintiff received a form document from Hayes entitled "Certificate of Deposit,” which stated in typewritten language that the silver was on deposit at Central State Savings in account no. 203. The certificate reflected that the silver would be placed in a one-year investment program and would yield ten percent of the original investment in one year. The certificate bore the purported signature of the president of Silver Corporation, Lawrence K. Koons—an individual who was named as a defendant in this action but who, apparently, was never served. Plaintiff’s check was deposited into Riverland Equities’ bank account, and a check for the full $9,600 was forwarded to Lawrence K. Koons.
In his deposition, Otto explained that because Riverland Equities had never participated in an arrangement under which purchased silver remained in the possession of Silver Corporation, and because Riverland Equities had no prior involvement in the issuance of, or the payment of interest on, certificates of deposit, he decided to simply forward the full $9,600 to Silver Corporation and not retain any amount of the purchase price as a commission. Hayes was paid $150 as a commission for the sale, however. After plaintiff failed to receive any interest payments and was unsuccessful in obtaining possession of the silver, he filed the instant action.
We note that plaintiff’s motion in the district court was brought under DCR 117.2(2), now MCR 2.116(C)(9)—failure to state a valid defense. An examination of the pleadings reveals that summary judgment under that provision was improper because defendants categorically denied some of plaintiff’s material allegations. Pontiac Schools v Bloomfield Twp, 417 Mich 579, 585; 339 NW2d 465 (1983). A perusal of the district judge’s opinion and order suggests, however, that the motion was tested not merely by reference to the pleadings, as is proper for motions for failure to state a valid defense, but also by reference to the depositions of defendants. Thus, it appears that the ruling was actually based on DCR 117.2(3), now MCR 2.116(0(10)—no genuine issue as to any material fact and the moving party is entitled, to judgment as a matter of law. In this case, since the material facts were not in dispute, we review the conclusions of law made below.
MCL 451.601(a); MSA 19.776(201)(a) provides:
A person shall not transact business in this state as a broker-dealer, commodity issuer, or agent unless registered under this act.
"Broker-dealer” is defined under MCL 451.801(c); MSA 19.776(401)(c):
[A]ny person engaged in the business of effecting transactions in securities or commodity contracts for the account of others or for his or her own account.
Commodity contract” is defined under MCL 451.801(o); MSA 19.776(401)(o):
Transactions dealing in, resulting in, or relating to contracts of purchase or sale of a commodity: for (1) delivery in the future at a specified time or a time to be determined or where delivery is not customarily made, including puts, calls, or any combinations thereof; (2) for present delivery where the value of the commodity is difficult to ascertain except by a person expert in the analysis of the commodity, and the commodity is offered for sale to the general public as an investment; (3) other options; (4) margin contracts; (5) or in general, any interest in an instrument commonly known as a commodity contract.
In the present case, it is clear that the transaction involving plaintiff and defendants constituted a commodity contract since it involved a transaction dealing in the sale of a commodity for delivery in the future. Precious metals are specifically included in the definition of "commodity.” MCL 451.801(n); MSA 19.776(401)(n). Thus, the crucial issue becomes whether Otto was a broker-dealer and therefore subject to the registration requirements of the Uniform Securities Act.
Under the statutory definition, whether Otto was a broker-dealer depends upon whether he was "engaged in the business of effecting transactions in securities or commodity contracts.” In his deposition, Otto stated that under the "tentative sales agreement” between Riverland Equities and the Silver Corporation, Riverland Equities was to make outright cash sales of silver bullion, entitling it to keep a percentage of each sale as a commission. Otto planned to set up a sales organization, and Hayes, with whom he had previously participated in oil and gas exploration ventures, became a sales representative. Four or five cash sales of silver had been completed by Riverland Equities when plaintiff made his purchase in February, 1982. Otto testified that when Hayes gave him plaintiff’s $9,600 check and informed him that the silver was to be held in escrow, he transferred the full $9,600 amount to the Silver Corporation on the same day "because we had nothing to do with escrow in any silver or paying any interest or any dividend or issuing of any certificate.” The transaction with plaintiff, involving issuance of a certificate and a promise to pay interest, was a one-time occurrence, and Otto made no profit from it; in fact, he lost money since he apparently paid Hayes a $150 commission. Under these circumstances, we cannot conclude that Otto was "engaged in the business of effecting transactions in securities or commodity contracts.”
In Moscow & Makens, Michigan Securities Regulations (1983), p 67, the authors write:
A person can be "engaged in the business” even if the "business” is only a small part of his activities and the money he makes from it only a minor fraction of his income. If he performs the acts in question often enough to support the inference that they are part of his business, he will be deemed to be "engaged in the business” within the definition.
There is no established test based on frequency of transactions or amount of commissions received for determining when a person is engaged in the business. Repeated transactions involving more than usual professional services create a risk that broker-dealer registration is necessary.
In addition, 69 Am Jur 2d, Securities Regulation— State, § 16, p 1076, provides:
[I]n general, a person must engage in the buying and selling of securities as a business, either as principal or agent, in order to be deemed a broker or dealer under blue sky laws, and so the question of whéther or not he receives compensation for so acting may have a significant bearing upon such person’s status in this regard.
We agree that in order for a person to be engaged in the business of effecting transactions in securities or commodity contracts for purposes of being a broker-dealer under the Uniform Securities Act, he must have performed such transactions often enough to demonstrate that they are in fact a part of his or her business. We do not believe that the Legislature intended to impose the registration requirements applicable to broker-dealers upon individuals who, as did Otto in this case, facilitate a single commodity contract without making any profit thereon and apparently without the intent of participating in such transactions in the future. Until the transaction with plaintiff, all previous transactions handled by Riv-erland Equities concerning silver were not commodity contracts but outright sales for cash with present delivery, entitling Riverland Equities to a commission. In light of these circumstances, the isolated commodity contract transaction in this case was insufficient to demonstrate that Otto was engaged in the business of effecting transactions in securities or commodity contracts; accordingly, he was not subject to the broker-dealer registration requirement.
We do not hold that a single transaction may never require a person to register as a broker-dealer. A purpose of the Uniform Securities Act, as stated in its preamble, is to "prohibit fraudulent practices” relating to "the issuance, offer, sale or purchase of securities and commodity contracts.” Under different circumstances than those presented here, the purpose of prohibiting fraud might lead to the conclusion that a person is engaged in the business of effecting transactions in commodity contracts where only one such transaction has in fact been accomplished. Such a determination must involve a consideration of all the relevant facts on a case-by-case basis.
Having concluded that Otto was not a dealer-broker, it follows that Hayes was not an agent under the Uniform Securities Act. An agent is defined as
[a]ny individual other than a broker-dealer who represents a broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities or commodity contracts. [MCL 451.801(b); MSA 19.776(401)(b).]
Since Hayes did not represent a broker-dealer and did not represent the issuer, Lawrence K. Koons, he was not an agent, and was therefore not required to register as one.
The orders below are vacated and the case is remanded for entry of an order denying plaintiff’s motion for summary judgment. We do not retain jurisdiction. | [
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M. R. Knoblock, J.
Plaintiff appeals as of right from an order of the circuit court granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(8), for failure to state a claim upon which relief may be granted.
In 1979, plaintiff became a second mortgagee of a building located in Pontiac, Michigan. The second mortgage secured a $38,750 promissory note given to plaintiff by a third party on October 4, 1979. On October 10, 1979, the second mortgage was recorded with the Oakland County Register of Deeds.
On November 4, 1982, defendant held a hearing relative to the condition of a building on the subject property, which allegedly constituted a nuisance. Plaintiff was not personally notified of the hearing before it occurred. She did, however, receive actual notice at some point after the hearing was held when she saw a copy of the notice that defendant affixed to the building pursuant to MCL 125.540; MSA 5.2891(20).
Plaintiff testified that upon seeing the posted notice she contacted defendant’s legal department and was informed that the building was not ordered demolished, but that the hearing had resulted in an order that the premises were to be made safe within ninety days from that date, and that any failure to comply would result in a rehearing before defendant’s hearing officer. She testified that she thereupon filed her name with the department requesting notification of any further action that defendant would take relative to the subject property. Defendant claims to have no record of having received any written communication or documentation indicating that plaintiff held an interest in the building.
On March 3, 1983, a rehearing was held and it was ordered that the building be demolished and cleared as an abatement of a nuisance. The interested parties as enumerated in MCL 125.540; MSA 5.2891(20) were sent notice of the rehearing and the notice was affixed conspicuously to the building. Defendant did not send a notice to plaintiff. On April 28, 1983, defendant held a review hearing before its city council, at which time the order of demolition was affirmed. Defendant again gave notice of this action to the parties as required by MCL 125.540; MSA 5.2891(20), but did not serve notice upon plaintiff. Thereafter, the subject building was demolished.
Plaintiff first claims on appeal that because she received no personal notice of the proceedings to demolish the building defendant’s actions denied her an opportunity to be heard, constituting a taking of property without due process of law. Defendant asserts that it acted in full compliance with statutory authority that comported with procedural due process.
MCL 125.540; MSA 5.2891(20) provides in part as follows:
(1) Notwithstanding any other provision of this act, when the whole or any part of any building or structure is found to be in a dangerous or unsafe condition, the enforcing agency shall issue a notice of the dangerous and unsafe condition.
(2) Such notice shall be directed to the owner, agent or lessee registered with the enforcing agency in accordance with section 125. If no owner, agent or lessee has been registered, then the notice shall be directed to each owner of or party in interest in the building in whose name the property appears on the last local tax assessment records.
(3) The notice shall specify the time and place of a hearing on the condition of the building or structure at which time and place the person to whom the notice is directed shall have the opportunity to show cause why the building or structure should not be ordered to be demolished or otherwise made safe.
(5) All notices shall be in writing and shall be served upon the person to whom they are directed personally, or in lieu of personal service may be mailed by certified mail—return receipt requested addressed to such owner or party in interest at the address shown on the tax records, at least 10 days before the date of the hearing described in the notice. If any person to whom a notice is directed is not personally served, in addition to mailing the notice, a copy thereof shall be posted upon a conspicuous part of the building or structure.
Plaintiff does not dispute defendant’s assertion that it complied with the notice requirements contained in the statute but claims that failure to provide her with notice deprived her of due process of law. It does not appear that this Court has previously passed on the question of whether the Housing Law of Michigan, MCL 125.401 et seq.; MSA 5.2771 et seq., requires notice sufficient to comport with constitutional due process of law.
The housing law establishes minimum requirements for the health, welfare and safety of the community, and every city and local unit may establish requirements higher than those set out in the law. MCL 125.408; MSA 5.2778. Since plaintiff is merely a second mortgagee, she was not registered with the enforcing agency and did not appear as the owner or a party in interest in the last local tax assessment records. Absent an entitlement to notice created by statute or local law, plaintiff’s claim of a due process violation is unfounded.
As a matter of law, a mortgagee has no estate in land but merely a chose in action. Plasger v Leonard, 312 Mich 561, 564; 20 NW2d 296 (1945). A real estate mortgage does not transfer title to the land to a mortgagee, but creates a lien on the land in favor of the mortgagee to secure the debt. McKeighan v Citizens Commercial & Savings Bank of Flint, 302 Mich 666, 670; 5 NW2d 524 (1942). Since a mortgagee does not hold an estate in land as a technical matter, the Legislature may very well have decided that such a personal property interest does not compel the giving of notice. The determination of whether a second mortgagee should be entitled to notice is a policy determination which, in our opinion, is best left to the state Legislature or the legislative body of the local unit of government. Since defendant fully complied with the notice provisions of the housing law, which provisions comport with procedural due process, we agree with the trial court’s conclusion that plaintiff has failed to state a claim upon which relief can be granted.
Plaintiff’s second issue on appeal concerns whether the Housing Law of Michigan was re pealed by the Public Health Code, MCL 333.1101 et seq.; MSA 14.15(1101) et seq. We agree with the conclusion of another panel of this Court which held in Heritage Hill Ass’n v Kinsey, 146 Mich App 803; 381 NW2d 831 (1985), that it was not.
Affirmed.
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Per Curiam.
Defendant appeals from a jury verdict of $16,500 in plaintiff’s favor on plaintiff’s intentional infliction of emotional distress claim. Defendant argues that the trial judge erred in denying defendant’s motion for a directed verdict and for a judgment notwithstanding the verdict. We disagree and affirm the jury’s verdict.
Plaintiff is a maintenance repairman for Michigan State University and was the union steward at the complex where defendant first became employed in August, 1980. Two weeks after defendant started, she complained to plaintiff about problems she was having with two co-workers. Defendant complained about another co-worker one week later. Plaintiff tried to mediate defendant’s complaints but found that they were baseless. Defendant, apparently unsatisfied with plaintiff’s efforts, repeatedly complained to the union that plaintiff was not adequately representing her. Thereafter, the relationship between the parties, already worn, continued to deteriorate. At office staff meetings, defendant accused plaintiff of being untrustworthy and of not adequately representing the employees. She accused plaintiff of being on management’s side and of being a "brown-noser” and a "pimp for management.” In addition, on repeated occasions, plaintiff heard defendant informing coworkers that plaintiff was having an affair with a co-worker. Other employees began to question plaintiff about defendant’s accusations. Moreover, friends did not seem to trust plaintiff any longer and did not come to him with their problems.
After six months of defendant’s abuse, plaintiff resigned his position as union steward. Nonetheless, defendant continued to harass him. Plaintiff eventually filed a charge against defendant with the union. In response, defendant began calling plaintiff at home and harassing him, his wife, and his children. When speaking with plaintiff’s wife, defendant accused plaintiff of being unfaithful. On one occasion she called the plaintiff’s wife just after plaintiff had left for work and asked her whether plaintiff was going to stop at a female coworker’s home for coffee, "as usual.” On another occasion she called and informed plaintiff’s family that plaintiff was a sneak and a liar and that his wife must be sick to want to live with him. Defendant continued telephoning plaintiff even after he had filed his lawsuit against her and continued right up until the time of trial. There was also evidence that the parties were involved in a physical altercation on one occasion.
Trial testimony indicated that plaintiff’s work, his home life and his health suffered as a result of defendant’s actions. Both plaintiff’s general manager and his immediate supervisor testified that plaintiff was a good employee but that his job performance declined after defendant became employed. They testified that, after defendant was transferred away, plaintiffs job performance returned to normal. Various co-workers testified that plaintiffs demeanor changed after defendant’s arrival in August, 1980. One co-worker testified that plaintiff’s behavior changed from one of happiness to depression. Plaintiff’s wife testified that after August, 1980, plaintiff, normally an easygoing person, came home depressed after work. He did not want to get up to go to work in the morning. He became irritable, argumentative and withdrawn. Plaintiff’s physician prescribed Dimatol for plaintiff’s stress-related symptoms of heartburn, headaches and tension. He felt that plaintiff might be developing a peptic ulcer.
Defendant claimed that it was the plaintiff who was harassing her. She accused the plaintiff of threatening and assaulting her and of soliciting sexual relations with her. In response to plaintiff’s complaint, she filed a countercomplaint against plaintiff stating claims for assault and battery and for the intentional infliction of emotional distress. Following trial, the jury rendered a verdict of $16,500 in favor of plaintiff, $50 in favor of defendant against plaintiff on her claim for assault and battery, and no cause for action on defendant’s claim against plaintiff for the intentional infliction of emotional distress.
On appeal, defendant argues that the trial judge erred in denying her motion for a directed verdict because as a matter of law her conduct towards plaintiff was not so outrageous as to give rise to a claim for the intentional infliction of emotional distress. She also argues that the trial judge erred in dismissing her judgment notwithstanding the verdict motion because plaintiff failed to prove causation or bodily harm.
The standard of review by this Court for a denial of a motion for a directed verdict and a motion for a judgment notwithstanding the verdict is the same. This Court must give the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. If, in viewing the evidence in a light most favorable to plaintiff, reasonable minds could differ as to whether a plaintiff has met his or her burden of proof, neither a directed verdict nor a judgment notwithstanding the verdict is appropriate and the case should be decided by the jury. Ford v Blue Cross & Blue Shield of Michigan, 150 Mich App 462, 464-465; 389 NW2d 114 (1986).
Michigan has defined the tort of intentional infliction of emotional distress as it is described in 1 Restatement Torts, 2d, § 46, pp 71-72:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Sawabini v Desenberg, 143 Mich App 373, 382-383; 372 NW2d 559 (1985); Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583, 590-591; 349 NW2d 529 (1984). Comment j of the Restatement states that emotional distress "includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.” It concludes that "[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the ex treme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed.” Further, comment k states that, while severe emotional distress is normally accompanied by bodily harm, bodily harm is not required if the enormity of the outrage carries with it the conviction that there has been severe emotional distress. 1 Restatement Torts, 2d, § 46, Comments j and k, pp 77-78.
The trial court did not err in denying defendant’s separate motions for a directed verdict or for a judgment notwithstanding the verdict. On the basis of defendant’s actions, her repeated accusations before plaintiffs coemployees that plaintiff was a management stool pigeon, her claims that he was having an illicit relationship with a coem-ployee, and her continued harassment of plaintiff and his family, the trial judge properly denied defendant’s motion for a directed verdict. The case was properly submitted to the factfinder for its determination as to whether plaintiff had sustained his burden of proof.
Nor is there any merit to defendant’s claim that plaintiff failed to establish emotional or bodily harm and failed to causally relate his injuries to defendant’s actions. The emotional distress suffered by plaintiff was established by both expert and lay witnesses. Dr. Hill testified that he prescribed Dimotal for plaintiff’s stress-related symptoms. He also testified that he felt that plaintiff’s symptoms indicated that plaintiff might be developing a peptic ulcer. Plaintiff’s wife and three of his co-workers testified that plaintiff’s behavior changed after August, 1980: that he became irritable, argumentative and depressed. Further, Dr. Hill’s testimony that plaintiff was in an extreme state of agitation when treated on September 14, 1981, immediately following an altercation with defendant, as well as plaintiffs own testimony, established the requisite causal link between defendant’s actions and plaintiffs emotional distress.
The jury’s verdict is affirmed. | [
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Per Curiam.
This case involves a challenge to the denial of Medicaid disability benefits. Following an administrative hearing held on June 5, 1985, a hearing officer upheld the decision of the Michigan Department of Social Services to deny petitioner disability benefits. On appeal to Lapeer Circuit Court, the circuit judge upheld the decision of the hearing officer. Petitioner now appeals to this Court as of right. We reverse and order that dss pay petitioner Medicaid benefits for hospital and medical expenses incurred by her from January, 1985, to March, 1985.
At the time of the administrative hearing petitioner was a fifty-three-year-old married woman with a high school education. Unemployed since 1981, her last job was as a grocery store clerk, which entailed operating the cash register, stocking groceries and cleaning shelves. She had also previously worked as a cook in a rest home.
Petitioner was hospitalized from March 4 to March 16, 1983, with chest pains linked to heart problems. At the time of discharge, she was diagnosed as suffering from an abnormally rapid heart rate coupled with anxiety, difficulty in breathing due to narrowing of her bronchial tubes, hyperactivity in her thyroid gland, and extreme potassium depletion in her blood. In January, 1985, petitioner underwent emergency surgery to remove a number of old and new blood clots present in both legs. She was also discovered to be a diabetic. She was discharged after seven days in the hospital, during which time she incurred expenses in excess of $18,000.
Petitioner was readmitted on February 4, 1985, complaining of chest pains. She was released four days later with the diagnosis of (1) recent myocardial infarction, (2) coronary insufficiency, (3) diabetes mellitus, and (4) peripheral vascular disease of the arteries and veins in the legs. An April 18, 1985, report from her regular family physician indicated that petitioner was suffering from coronary artery disease, diabetes, peripheral vascular occlusive disease, chronic pulmonary obstruction, and gangrene of two left toes.
On January 22, 1985, petitioner applied for Medicaid disability benefits. Her application was denied throughout the dss administrative process because it was determined that she had not been disabled for a period of twelve months or more. In a decision issued on June 12, 1985, the hearing officer found petitioner not disabled and denied her application for Medicaid. About the same time petitioner suffered a stroke and again entered the hospital. On appeal to the circuit court, the hearing officer’s decision was affirmed because (1) the burden of proving her claim of disability was on the petitioner, (2) the hearing officer demonstrated no bias, (3) even though a hearing officer has a greater duty than a circuit judge to develop the record for an unrepresented claimant, the hearing officer in this hearing asked probing questions and gave petitioner a fair, full and complete hearing, and (4) the hearing officer correctly denied petitioner’s application based on the medical records he had before him at the time of the hearing.
We review decisions of the hearing officer in the same manner as the circuit court does, under MCL 24.306; MSA 3.560(206). General Motors Corp v Bureau of Safety & Regulation, 133 Mich App 284; 349 NW2d 157 (1984). Petitioner’s argument essentially asserts that the decision of the hearing officer is not supported by "competent, material and substantial evidence on the whole record.” MCL 24.306(1)(d); MSA 3.560(206)(1)(d). In Soto v Director of the Michigan Dep’t of Social Services, 73 Mich App 263, 271; 251 NW2d 292 (1977), this Court explained that
"[substantial evidence” means evidence which a reasoning mind would accept as sufficient to support a conclusion. "It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance” of the evidence. [Citations omitted.]
Appellate courts in Michigan give considerable deference to the findings of administrative agencies, especially when it comes to fact finding and weighing of the evidence. Smith v Mayor of Ecorse, 81 Mich App 601, 604-605; 265 NW2d 766 (1978).
Medicaid disability benefits are administered by dss in accordance with Subchapter XIX of the Social Security Act, 42 USC 1396 et seq.; see also MCL 400.105 et seq.; MSA 16.490(15) et seq., and the agency’s program eligibility manual. The determination whether or not a person is disabled for purposes of Medicaid eligibility is governed by 20 CFR 404.1501 et seq. Under those regulations, disability is defined as "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 CFR 404.1505(a); 20 CFR 416.905; 42 USC 1382. The Social Security regulations provide for a step-by-step review process for determining disability. 20 CFR 404.1520. If at any step in the review it is determined that the petitioner is or is not disabled, review of the claim ceases. Mowery v Heck ler, 771 F2d 966, 969 (CA 6, 1985); 20 CFR 404.1520(a).
The sequential consideration of a disability claim proceeds as follows:
(1) Is the claimant currently working, i.e., currently doing "substantial gainful activity”? 20 CFR 416.920(a).
(2) If not, does the claimant have a severe impairment, i.e., does the claimant have an impairment which "significantly limits [her] physical or mental ability to do basic work activities”? 20 CFR 416.920(c).
(3) If she does, does claimant have an impairment listed in Appendix 1 to Subpart P of 20 CFR, Part 404, i.e., a "listed impairment,” so that the claimant can be found disabled based on the medical evidence alone?
(4) If not, does claimant’s impairment prevent her from doing her past relevant work?
(5) If it does, does claimant’s impairment prevent her from doing other work? 20 CFR 404.1520.
See Mowery, supra, pp 969-970; Kirk v Secretary of Health & Human Services, 667 F2d 524, 528 (CA 6, 1981), cert den 461 US 957; 103 S Ct 2428; 77 L Ed 2d 1315 (1983).
Petitioner’s chief complaint lies with the fifth step of the hearing officer’s analysis. The fifth step of the review process requires the hearing officer to determine whether the claimant can perform other jobs which exist in significant numbers in the national economy. 20 CFR 416.1520, 416.1560 and 416.1561. This determination is based on the claimant’s (1) "residual function capacity,” defined simply as "what you can still do despite your limitations,” 20 CFR 416.945, (2) age, education and work experience, and (3) the kinds of work which exist in significant numbers in the national economy which the claimant could perform despite her impairments. 20 CFR 404.1520(f) and 20 CFR 416.960.
Once the hearing officer determines the claimant’s age, education, previous work experience and her "residual function capacity,” these findings are plugged into one of three medical-vocational grids found at 20 CFR, Part 404, Subpart P, Appendix 2, which direct a conclusion of "disabled” or "not disabled.” The United States Supreme Court has determined that these medical-vocational guidelines or grids may properly be used as a shortcut method of determining whether or not there are jobs in the national economy which a claimant can perform despite his or her limitations. Heckler v Campbell, 461 US 458; 103 S Ct 1952; 76 L Ed 2d 66 (1983). However, federal courts have noted that “only when the findings of fact as to each of the relevant components of the grid 'coincide’ with the grid’s definitions, do the guidelines direct a conclusion as to disability.” Kirk, supra, p 528. "[I]f the characteristics of the claimant do not identically match the description in the grid, the grid is only used as a guide to the disability determination.” Id.
In the instant case, the hearing officer made the following findings as to petitioner’s age, education, previous work experience and residual function capacity:
(1) She was fifty-three years old and thus "a person approaching advanced age” as defined in 20 CFR 416.963;
(2) She had a 12th-grade education;
(3) Her previous work required the ability to perform "medium manual labor”; and
(4) She had the ability to meet the physical demands required to perform "light work.”
As a result of his determination that petitioner could perform "light work,” the. hearing officer used Table 2 of Appendix 2, 20 CFR, Part 404, Subpart P, to conclude that petitioner was not disabled. The hearing officer said he relied on Rule 202.1 of Table 2 to make his determination, but there is no such rule in that table. There is a Rule 202.10, but that line on the table coincides with someone who has less education than a high school graduate, and thus would not seem to fit petitioner, whom the hearing officer found to have a 12th-grade education. Respondent suggests that the petitioner’s characteristics are found in Rule 202.15 of Table 2, and attributes the hearing officer’s citation to a typographical error.
Respondent’s suggestion is based on the dubious assumption that petitioner’s previous job involved "semi-skilled work” (see definition at 20 CFR 416.968[b]) rather than "unskilled work” (see definition at 20 CFR 416.968[a]) and also the only slightly more credible assumption that these skills were transferrable to jobs in the "light work” category. Even though there is no doubt that the hearing officer in the instant case erred by not making specific findings of whether or not petitioner’s previous jobs involved "unskilled” or "semiskilled” labor and whether or not these skills were transferrable to jobs in the "light work” category, Richardson v Secretary of Health & Human Services, 735 F2d 962 (CA 6, 1984), this error made no difference to the disposition of this case as long as the hearing officer was correct in deciding that the petitioner was capable of "light work.” However, as will be discussed later, this error by the hearing officer does make a difference to the disposition of this case if petitioner was only able to do "sedentary work.” Using any one of the lines on Table. 2 which characterize a person as "approaching ad vanced age” and as a high school graduate or more (Rules 202.13, 202.14 or 202.15), the hearing officer would still have reached the same result. The correctness of the hearing officer’s decision thus turns in large part on whether or not he properly concluded that petitioner was capable of performing "light work.”
We hold that, based on the evidence presented, the hearing officer was incorrect in deciding that the petitioner was capable of performing "light work.” Once a claimant reaches step 5 of the review process, he or she has already established a prima facie case of disability. Richardson, supra. At that point the burden is on the government to prove by substantial evidence that the claimant has the residual capacity for substantial gainful employment. Richardson, supra, p 964. Specifically, the burden was on the respondent in this case to prove that petitioner had the residual capacity to do "light work.” Id.; Bogard v Heckler, 763 F2d 361, 363 (CA 8, 1985).
The federal regulations describe "light work” as follows:
Light work involves lifting no more that 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing or when it involves sitting most of the time with some pushing or pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. [20 CFR 404.1567(b).]
The hearing officer in the instant case found that petitioner had "significant limitations on physical activities involving standing, walking, and lifting more than 10 pounds.” This conclusion was substantially supported by the reports of all three examining doctors and by the petitioner’s testimony at the administrative hearing itself. However, the hearing officer’s conclusion that these factual findings indicated petitioner could do light work was not supported by the evidence. The consensus of the doctors was that at most petitioner could occasionally lift objects weighing up to ten pounds as opposed to the demand of "light work,” which require "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 CFR 404.1567(b). In addition, "light work,” as used in the Social Security regulations, "presupposes an ability to stand and walk at least 6 hours in an 8-hour work day,” Lawler v Heckler, 761 F2d 195, 198 (CA 5, 1985), something the doctors here clearly indicated petitioner could not do.
Petitioner’s characteristics suggest that she is able to perform only "sedentary work.” The regulations describe "sedentary work” as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary jf walking and standing are required occasionally and other sedentary criteria are met. [20 CFR 404.1567(a).]
Since petitioner was capable of only "sedentary work,” the hearing officer should have used a different grid, namely, Table 1 of 20 CFR, Part 404, Subpart P, Appendix 2. However, even given the fact that petitioner is a person "closely approaching advanced age” and a high school graduate whose status does not provide for direct entry into skilled work, the conclusion of "disabled” or "not disabled” is possible under Rules 201.12, 201.14 and 201.15, depending on whether petitioner’s previous work involved "unskilled” or "semiskilled” labor and whether or not those skills are transferrable to jobs in the "sedentary work” category.
Despite these possible results, we believe Rule 201.12 or Rule 201.14 in Table 1 should have been used and a conclusion of "disabled” reached. This is so because the burden was on respondent to prove that the skills petitioner acquired in her past relevant work were transferrable to "sedentary work.” Richardson, supra, p 964. Since neither the hearing officer nor the respondent made any showing that petitioner’s skills were transferrable to "light” or "sedentary” work, it must be presumed that they were not transferrable and thus respondent has not discharged the burden of proving that petitioner had the residual capacity for substantial gainful employment. Id. Whether or not petitioner’s previous work entailed "unskilled” or "semi-skilled” work was thus irrelevant since under either Rule 201.12 or Rule 201.14 petitioner must be considered "disabled.”
Because we conclude that the decision of the hearing officer that petitioner was not disabled was not supported by competent, material and substantial evidence on the whole record, we need not give extended consideration to petitioner’s due process claims. However, we briefly note that the hearing officer did little in the twenty-minute hearing to fully develop the record in petitioner’s behalf. The hearing officer has a duty to fully and fairly develop the record on behalf of an unrepresented claimant, particularly if the claimant is unfamiliar with the hearing procedure. Collingsworth v Director, Dep’t of Social Services, 146 Mich App 186, 197; 379 NW2d 417 (1985). The hearing officer observed that petitioner had five prescribed medications, but he only elicited the purpose of three of them. Petitioner asserts that further investigation by the hearing officer would have revealed that common side effects of the medicines petitioner was prescribed include headaches, hypotension, increased heart rate, dizziness, flushing, and nausea.
For the foregoing reasons, the decision of the hearing Officer, and the decision of the circuit court affirming that decision are reversed. The dss shall pay petitioner Medicaid benefits for hospital and medical expenses incurred by her from January, 1985, to March, 1985.
Subsequent to the denial of benefits at issue in this case dss awarded petitioner Medicaid benefits retroactive to March, 1985. Therefore, only benefits for the January, 1985, to March, 1985, period are at issue in this case. | [
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Per Curiam.
Plaintiff, the father of decedent Douglas Helmer and also the administrator of Douglas Helmer’s estate, appeals as of right from summary disposition entered by the Wayne Circuit Court in favor of defendants on the basis of governmental immunity, MCR 2.116(C)(7), and also from denial of a motion to amend. We affirm.
This wrongful death and malpractice suit arose out of the suicide of plaintiffs son, who died when he crashed in a small airplane he had rented on January 31, 1978. The young man’s death occurred after an earlier attempted suicide for which he had been treated at defendant hospital by third-party defendant David Taubin, M.D.
Plaintiff filed a complaint against Peoples Community Hospital Authority (defendant hospital) on January 28, 1980. Although on June 23, 1981, defendant hospital filed a third-party complaint against Dr. Taubin and Emergency Physicians Medical Group, plaintiff did not assert any claims against them. Plaintiffs case was pending in the circuit court on January 22, 1985, when the Michigan Supreme Court released its opinion concerning governmental immunity in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The circuit court subsequently granted defendant hospital’s motion for summary disposition on the basis of governmental immunity under MCR 2.116(C)(7). Citing expiration of the period of limitations as it applied to the third-party defendants, the circuit court also denied plaintiffs motion to amend his complaint to substitute the third-party defendants as principal defendants in the case. Plaintiff appeals from both decisions of the circuit court.
On appeal, plaintiff argues that the circuit court improperly decided that Ross, supra, retroactively barred plaintiffs cause of action, that such application contravened plaintiffs due process rights, and that the trial court erred in determining that the statute of limitations prevented plaintiffs substitution of third-party defendants as principal defendants in the case.
i
We find no error in the circuit court’s retroactive application of Ross. The defendant hospital, as a public general hospital, is a state agency. See Ecorse v Peoples Community Hospital Authority, 336 Mich 490, 502; 58 NW2d 159 (1953). Defendant hospital’s operation is authorized by statute. MCL 331.1 et seq.; MSA 5.2456(1) et seq. Although Parker v Highland Park, 404 Mich 183, 194-195; 273 NW2d 413 (1978), had previously held that public general hospitals are not immune from tort liability, the language of Ross implies that a public general hospital is engaged in the exercise or discharge of a governmental function, and, therefore, is immune whenever its activities are expressly or impliedly mandated or authorized by constitution, statute, or other law. Ross, supra, 620-621. However, Ross did not indicate whether its decision should be applied retroactively.
This issue remained to be resolved by Hyde v University of Michigan Regents, 426 Mich 223, 237-242; 393 NW2d 847 (1986), which was decided after plaintiff had filed his appeal brief in this case. Hyde applies governmental immunity to a public general hospital, noting the general rule that judicial decisions are generally given complete retroactive effect and that Ross had impliedly overruled Parker. Hyde, supra, 240, 245-246. Hyde concluded that Ross specifically applied "to all cases commenced after . . . and . . . pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved.” Hyde, supra, 230.
Here, plaintiff’s case was pending in the courts on January 22, 1985, the date the Ross decision was released, and defendant hospital had raised in its answer the affirmative defense of governmental immunity. Because plaintiff concedes that his suit would be properly barred if Ross could be retroactively applied, and since Hyde clearly mandates this result, further analysis and application of the Ross immunity test is unnecessary.
n
Plaintiff’s argument that he relied upon Parker, supra, to allege that public general hospitals are not subject to immunity and that, therefore, the retroactive application of Ross denies him due process of law is without merit. First, plaintiff failed to preserve the issue for appeal by raising it in the trial court. Oakland Co v Detroit, 81 Mich App 308, 313; 265 NW2d 130 (1978), lv den 403 Mich 810 (1978). Second, as already noted, this very claim was rejected in Hyde, which held that Ross had superseded Parker.
in
Plaintiffs final argument is that the trial court erred by applying the statute of limitations to prevent his substitution of third-party defendants as principal defendants in this case. We do not agree.
It was within the discretion of the circuit court to grant or deny a motion to amend a pleading or to add a party. MCR 2.118(A); MCR 2.207; In re Yeager Bridge Co, 150 Mich App 386, 397; 389 NW2d 99 (1986). Here, the court properly exercised its discretion when deciding that the amendment was barred by the statute of limitations, which provides a period of limitation of two years from the date of accrual or six months from the date the claim was discovered or should have been discovered. MCL 600.5805(4); MSA 27A.5805(4); MCL 600.5838(2); MSA 27A.5838(2). The alleged malpractice occurred on January 31, 1978; plaintiff filed his complaint against defendant hospital on January 28, 1980. Although defendant’s third-party complaint was filed on June 23, 1981, plaintiff waited until aftér the court granted defendant hospital’s motion for summary disposition, on or about November 12, .1985, to file his motion to amend the complaint.
Under MCR 2.204(A)(3), plaintiff could have asserted a claim against third-party defendants at any time before the period of limitation expired, but did not do so. Higginbotham v Fearer Leasing, Inc, 32 Mich App 664, 673-674, 677; 189 NW2d 125 (1971), lv den 385 Mich 765 (1971). Such failure may reasonably be interpreted as an election to forego the right to name third-party defendants as principal defendants.
Plaintiff’s reliance on MCR 2.118(D), which pro-vidés for relation back of an amendment to the date of the original pleading, is unavailing. This is because an amendment will generally not relate back to the original filing date for purposes of adding a new principal defendant if the period of limitation has expired as to that defendant. Higginbotham, supra, 673-674, 677; Browder v Int'l Fidelity Ins Co, 98 Mich App 358, 361; 296 NW2d 60 (1980), aff'd 413 Mich 603; 321 NW2d 668 (1982). See also Forest v Parmalee (On Rehearing), 60 Mich App 401; 231 NW2d 378 (1975), aff'd 402 Mich 348; 262 NW2d 653 (1978). We see no reason to create an exception in this case.
For the foregoing reasons, we uphold the circuit court’s granting of summary disposition and denial of the motion to amend.
Affirmed.
In July of 1982 the trial court granted defendant hospital’s motion for directed verdict on the basis that plaintiff had failed to introduce evidence that the alleged malpractice was the proximate cause of decedent’s suicide. On appeal, this Court in an unpublished per curiam opinion reversed the directed verdict, holding that the trial court abused its discretion when refusing to let a particular doctor testify as to the standard of care for emergency room personnel, and remanded the case to allow this testimony. Estate of Helmer, unpublished opinion per curiam of the Court of Appeals, decided June 23, 1984 (Docket No. 67190). | [
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Per Curiam.
Plaintiffs appeal as of right from a jury verdict of no cause of action. Plaintiffs’ suit against defendant alleged that defendant had defectively designed a turbocharged engine and failed to warn of the dangers involved in servicing the engine with the air inlet pipe removed.
Plaintiff Nicholas Cocora was working as a mechanic for Bill Wink Chevrolet on November 1, 1978. A fellow employee, Maynard Nitz, asked Cocora to help work on a Chevrolet Titan truck. The engine in the truck was an 8V92T engine designed by Detroit Diesel, a division of General Motors. Nitz took off the air pipe above the turbo inlet so he could gain access to the valve cover and tied the governor stop lever to what he thought was the shutoff position, inadvertently tying the wrong lever. Cocora was standing with his right foot on the battery and his left foot on the linkage for the steering arm. Nitz was turning the engine over while Cocora was leaning over to make adjustments to the engine. The engine unexpectedly started up. Cocora lost his balance and his right hand was sucked into the engine. Nitz helped Cocora pull his hand out, but a portion of the tip of Cocora’s first finger was severed.
Plaintiffs began this action against defendant claiming that the engine was defectively designed and that defendant had failed to warn of the danger involved in servicing the engine when the air inlet pipe has been removed. After trial, the jury returned a verdict, finding that General Motors was not liable to plaintiffs.
On appeal plaintiffs contend that the trial court erred by not excusing for cause a proposed juror employed by Detroit Diesel, German Williams. The trial court refused to excuse Williams after questioning him in chambers and deciding that he would not be biased by his employment. Plaintiffs then used a peremptory challenge to excuse Williams and eventually exhausted their peremptory challenges.
We agree that perhaps Williams should have been excused for cause. The court rules list thirteen grounds for challenges due to cause, MCR 2.511(D)(10), formerly GCR 1963, 511.4(10). Two panels of this Court have held that grounds four through thirteen are mandatory and, thus, once it is established that the grounds exist a judge has no discretion and must excuse the juror. Bishop v Interlake, Inc, 121 Mich App 397, 401; 328 NW2d 643 (1982); McNabb v Green Real Estate Co, 62 Mich App 500, 506-507; 233 NW2d 811 (1975). Prejudice must be inferred from the existence of one of the listed grounds for cause. One such ground for cause is employment with a party, MCR 2.511(D)(10). Following Bishop and McNabb, Williams would have to be excused.
Furthermore, during in-chambers examination Williams showed some equivocation in his answers about whether he feared retaliation from his employer if the jury returned a large damage award. Thus, even if bias were not inferred, some evidence of bias was present.
Williams did not sit on the jury, however, since plaintiffs used a peremptory challenge to remove him from the panel. The question before us is whether error requiring reversal occurs when a trial court fails to excuse a juror for cause but the juror is removed by use of a peremptory challenge. A case decided by our Supreme Court dating back to 1907 held that no error occurred in this situation because the trial was heard by an impartial jury. Pearce v Quincy Mining Co, 149 Mich 112, 116-117; 112 NW 739 (1907). The Court stated:
We think that, when the parties have obtained a competent and impartial jury, there is no good reason in setting that verdict aside and granting a new trial, because the judge erred in retaining upon the jury one who was in fact disqualified, but who was afterwards peremptorily challenged. An impartial jury is all that a party is entitled to, and when he has obtained that he has no valid ground for complaint.
More recently a similar issue has been decided by a panel of this Court. In Bishop the party wanting the juror excused used his last peremptory challenge to do so. The Court noted the importance of the unfettered use of the peremptory challenge, then held:
Here, the record shows that plaintiffs’ counsel desired to excuse another juror but was unable to do so because his peremptory challenges had been exhausted. The failure to excuse [the juror] for cause thus constitutes reversible error. [Bishop, supra, p 403.]
In the instant case the plaintiffs did not indicate on the record that they desired to excuse another juror but were unable to do so. Thus, this case is distinguished from Bishop, and we find, as did the Supreme Court in Pearce, that plaintiffs obtained an impartial jury and that, as a result, the trial court’s error was harmless.
Plaintiffs also allege that the trial court erred by permitting cross-examination of plaintiff Flora Có-cora regarding the dismissal of her husband from Wink Chevrolet on theft charges. We disagree.
During direct examination Mrs. Cocora testified that before the accident her husband was outgoing and sociable, but after the accident he did not care to go out or be seen in public. His activities at their church dwindled down considerably. She also testified that nothing else happened during this time which could be responsible for this personality change. Defendant was then allowed to ask her whether the change might have been due to Mr. Cocora’s dismissal from Wink Chevrolet for allegedly taking four quarts of oil without authorization. Defendant then asked her if she was aware that those accusations were eventually dismissed. Mrs. Cocora replied that no charges were brought against her husband and that he was innocent. It was her opinion also that Mr. Cocora’s personality change was not due to these false accusations.
Plaintiffs argue that the testimony was improper character evidence under MRE 404 and 608. The testimony was not, however, admitted to prove the character of Nicholas Cocora as forbidden by MRE 404. Nor was the testimony about instances of prior acts of Flora Cocora, which may have violated MRE 608.
The evidence was properly admitted for impeachment. Mrs. Cocora testified that no other event in her husband’s life could have caused his personality change. She was properly impeached on this issue by questions regarding a false accusation of theft aimed at Mr. Cocora which would naturally have been traumatic and possibly have caused his reluctance to be involved in church activities and social events. Determining the admissibility of evidence is within the sound discretion of the trial court. Hadley v Trio Tool Co, 143 Mich App 319, 328; 372 NW2d 537 (1985).
Plaintiffs raise other issues as well, but in many of the issues plaintiffs have not offered any law to support their position. A statement of position without a supporting citation is insufficient to bring an issue before this Court; a party may not leave it to this Court to search for authority to sustain or reject its position. Wojciechowski v General Motors Corp, 151 Mich App 399; 390 NW2d 727 (1986).
We have reviewed plaintiffs’ remaining issues and find that they do not constitute error requiring reversal.
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Beasley, J.
Plaintiff, Shell Oil Company, filed this action on February 22, 1985, seeking a declaratory judgment that a 1972 amendment to a lease of which plaintiff was lessee was valid and enforceable. Both plaintiff and defendant, estate of Benjamin Kert, moved for summary disposition. Plaintiff’s motion was brought pursuant to MCR 2.116(C)(9) on the basis that defendant estate had failed to state a valid defense to plaintiff’s declaratory judgment action. Defendant’s motion was brought pursuant to MCR 2.116(C)(8) and (10) on the grounds that plaintiff had failed to state a claim on which relief could be granted and that, except as to the amount of damages, there was no genuine issue as to any material fact so that defendant was entitled to judgment as a matter of law. On June 23, 1986, the trial court denied defendant’s motion and granted plaintiff’s motion. On August 4, 1986, defendant’s motion for reconsideration was denied, and defendant now appeals as of right.
The essential bare facts aré not disputed, but the parties do not agree as to their legal significance. On July 10, 1958, Benjamin Kert and his wife, Esther Kert, leased a parcel of property located at the northeast corner of Orchard Lake and Maple Roads in West Bloomfield Township, Oakland County, to plaintiff. The lease, typed on plaintiff’s printed form, identified the couple as "Ben Kert and Esther Kert, His Wife, . . . (herein called 'Lessor’, whether one or more).” It also contained the following provisions, among others:
Lessor covenants that Lessor is well seized of and has good right to lease the premises, will warrant and defend the title thereto, and will indemnify Shell against any damage and expense which Shell may suffer by reason of any lien, encumbrance, restriction or defect in the title to or description herein of the premises. If, at any time, Lessor’s title or right to receive rent hereunder is disputed, or there is a change of ownership of Lessor’s estate by act of the parties or operation of law, Shell may withhold rent thereafter accruing until Shell is furnished proof satisfactory to it as to the party entitled thereto.
This lease merges and supersedes all prior negotiations, representations and agreements, and constitutes the entire contract, between Lessor and Shell concerning the leasing of the premises and the consideration therefor. Neither this lease nor any amendment or supplement thereto shall be binding on Shell unless and until it is signed in Shell’s behalf by a representative duly authorized by its Board of Directors, and a copy thereof so signed is delivered to Lessor. This lease shall be binding on and inure to the benefit of the heirs, administrators, executors, successors and assigns of Lessor, and the successors and assigns of Shell.
The lease as drafted ran for a term of fifteen years, but plaintiff had the option of extending it for two additional five-year periods under generally the same terms and conditions. The lease commenced when Shell completed construction of an automobile service station on the premises, which apparently occurred in 1959 and meant that the lease expired in 1974. If the two options were exercised, as they were, the lease would end in 1984. Both Benjamin and Esther Kert signed the lease. Following its execution, plaintiff constructed the service station on the property and subleased it.
Benjamin Kert died testate in 1969, leaving one-half of his estate to his widow, Esther Kert, and the other half to various children and grandchildren, who are named defendants in this case. His will was not probated, however, until Esther Kert initiated probate proceedings in January, 1984.
In the interim following her husband’s death, Esther Kert contacted plaintiff in 1970 and requested that payments be made directly to her. When plaintiff requested a "letter testamentary,” Esther Kert’s attorney, Harvey Tennen, responded by letter claiming that under Michigan law Benjamin and Esther Kert, his wife, were tenants by the entirety, so that on Benjamin’s death Esther Kert became the sole owner as surviving tenant by the entirety. Plaintiff responded by requesting the furnishing to it of a copy of the warranty deed establishing the alleged tenancy by the entirety. Tennen responded by sending a copy of an administrator’s deed dated February 5, 1952, which conveyed the subject real property to Benjamin Kert only. In his letter of transmittal, Tennen made no further reference to the matter of a tenancy by the entirety but, nevertheless, after that plaintiff Shell apparently paid the rent to Esther Kert.
On June 29, 1972, Esther Kert and plaintiff Shell amended the 1958 lease, purporting to give plaintiff the option for two additional five-year extensions of the lease which, if exercised, would cause the lease term to extend to 1994. In the agreement amending the lease, Esther Kert was merely described as "a widow.” If these options were exercised, the renewals would be on the same terms and conditions as the original lease except that the rental minimums and máximums would be increased. After execution of the amendment, plaintiff Shell claims to have invested more than $200,000 for improvements to the service station on the property.
In April, 1974, Shell exercised its first five-year option to renew by sending written notice to Esther Kert. Apparently, Shell also exercised its option in 1979. In early 1984, as part of a road-widening project, the Oakland County Road Commission notified defendant, estate of Benjamin Kert, that the road commission believed the estate had an interest in the subject real property. Thereafter, in a letter of February 2, 1984, Harriet Housman, personal representative of the estate, requested that plaintiff contact her to discuss the negotiation of a new lease, asserting that the original lease had expired. Plaintiff tried to rely on the amended lease, but defendant’s counsel replied that the amendment was of no force or effect, stating: "Shell’s attempted exercise of an option that may have been granted by someone other than the titleholder, or the estate of the titleholder, is null and void.” The letter concluded that the estate intended to take possession of the property on June 30, 1984, the time when the 1958 lease would expire. This lawsuit resulted.
After granting plaintiffs motion for summary disposition, as previously indicated, the trial judge signed a judgment which provided that (1) plaintiff’s rights under the lease amendment of June 29, 1972, "are valid and bind the heirs at law of Ben Kert”; (2) defendants are tenants in common with respect to their interests in said property; and (3) defendants, the estate of Benjamin Kert and the named heirs, are entitled to an accounting from defendant, Esther Kert, for all monies received by her since Ben Kert’s death on September 27, 1969, under the terms of the 1958 lease agreement between plaintiff Shell and Ben and Esther Kert, and the 1972 lease amendment between plaintiff Shell and Esther Kert.
The issues presented on appeal are these: (1) whether the amendment should be rescinded for mutual mistake; (2) if not, whether the amendment is binding on the estate; (3) whether defendant estate is entitled to an accounting or compensation; and (4) if so, whether it is plaintiff or Esther Kert who is compelled to make that accounting or compensation.
The record before us indicates that at the time of the original Shell lease in July, 1958, Ben Kert was the owner of the subject real estate and his wife, Esther Kert, was not an owner. As Ben’s wife, Esther did possess an inchoate dower right in 1958, but there was no tenancy by the entirety. Thus, when Ben died in 1969, Esther did not take this real property as a surviving widow. As previously indicated, Ben died testate, leaving one-half of his estate to his widow, Esther Kert. Thus, on Ben’s death, Esther Kert had a choice. She could either take under his will or she could take her dower rights and other statutory rights under the intestacy laws. Although we assume that her share under his will exceeded her dower and other statutory rights under the intestacy laws, she made no choice for fifteen years.
However, also as previously indicated, Esther Kert did sign the 1958 lease as a party, along with her husband. It is not surprising that Esther signed since the lease contained a provision that permitted Shell to match any bona fide offer to purchase that Kert might receive and, in such event, required the lessor to convey good and marketable title to Shell. Since Esther possessed an inchoate dower right in the real property, Shell’s right to purchase would only be effective if Esther, as Ben’s wife, was obligated to join in the conveyance. By being a party to the lease, she was so obligated to join in such a conveyance: thus, one good reason for her signing the lease. Further, since by signing Esther became a party to the lease, it is clear that during the life of the lease the notice provisions could be complied with by Shell by directing written notice to either Esther or Ben. It is also clear that, as a party to the lease, rent could be delivered to her as well as to him, and rent was paid to her during these years. However, we believe that the lease also meant that during its term Esther Kert was entitled to the rents, until 1984 when the original lease, as extended, expired.
It should be noted that when she eventually filed the will for probate in 1984, if Esther Kert took under the will, she became a tenant in common with the remaining heirs or devisees. Viewed solely as a tenant in common, she would only be able to amend the lease to the extent that her authority as a cotenant permitted.
Plaintiff argues, however, that the terms of the 1958 lease quoted previously constitute a grant of authority by Benjamin Kert to Esther Kert, empowering her to lease the entire property, not merely the undivided half interest she received under the will. Plaintiff’s argument goes like this. Benjamin Kert represented in the 1958 lease that he and Esther Kert were the "lessor,” that the "lessor” had good title, and that the lease would be binding on and inure to the benefit of the heirs, administrators, successors and assigns of the "lessor,” and successors and assigns of plaintiff. This, according to plaintiff, means that Benjamin Kert warranted Esther Kert’s title, giving her the means to dispose of the property completely without consulting him. Plaintiff boldly asserts that, if Benjamin Kert were alive today, he could not "contest the right, title or authority of his wife to grant the Lease Amendment options of June 28, 1972.” The argument continues that, because Benjamin Kert’s heirs could take no greater rights in the property than he had himself, they also had no power to prevent Esther Kert from leasing the entire property during the term of the lease.
We do not agree with plaintiff’s surmises. First of all, the language of the lease simply does not say what plaintiff claims it does. It is true that plaintiff’s form of lease listed the two spouses together as a single "lessor” and that it contained warranties of title and was made binding on heirs and assigns. However, this does not mean that each of the parties signing as "lessor” warranted the title and authority of every other party signing as "lessor.” The law does not provide that this language places such a burden on contracting cotenants. Secondly, even if the lease did contain such an unusual cross-warranty, that warranty would not be sufficient to give one cotenant (if she was a cotenant) the power to encumber the entire property without consent of the other. There is no such common estate in which a cotenant has such a power. It is true that Benjamin Kert could have granted such power to a cotenant, or even to his wife, Esther Kert, without her being a cotenant, under principles of agency, but the lease, does not contain any language giving rise to. such an agency. In fact, plaintiff itself goes so far as to say that "any contention by the heirs that Shell is relying on a ratification or agency theory is erroneous.”
The principal authority relied upon by plaintiff in support of its contention is Wright v Kay nor. In that case, two tenants in common, under the apparently mistaken belief that they were tenants by the entirety, conveyed a lease to a third party with an option to renew and to buy. The lease specified that it was null and void upon the third party’s failure to pay rent within thirty days "after the time stated in this lease.” One of the tenants in common died before either option was exercised. The third party continued paying rent, but only to the surviving cotenant and his new wife. Then the third party exercised his option. The heirs of the deceased cotenant "refused to recognize the lease as binding upon them,” as did the surviving cotenant. The Supreme Court held that the lease was legally renewed as to both the surviving cotenant and the heirs of the deceased cotenant. The Court reasoned that the two coten-ants were also joint contractors, each of whom had given the third party the right to renew and buy. The Court pointed put that notice required by contract is effective if given to one of several joint contractors, and that the deceased cotenant had stipulated to a joint contract so that notice to one would serve.
While the decision in Wright may have been correct, plaintiff’s reliance on it here is misplaced, First of all, as we previously pointed out, Esther Kert’s only legal right in the property at the time the lease was made was her inchoate dower right, so that it cannot be correctly said that she was a joint contractor, like the deceased cotenant in Wright. As indicated, presumably she joined in the 1958 lease for the purpose of protecting plaintiff against refusal by her to release any dower rights she might have possessed. Second, and more importantly, the lease in Wright contained a promise which the deceased cotenant herself made; the only event occurring after her death was the exercising of the option, to which she had previously agreed. In the within case, by contrast, plaintiff wishes us to hold that the presence of a "joint contract” gave one joint contractor the right to make new promises (two additional five-year options) on behalf of the other joint contractor during the term of the lease, without consulting that other joint contractor, his heirs or assigns. This is simply not the holding of Wright. Such a holding would seem to convert every joint contract into some kind of agency agreement. Conse quently, we do not believe Wright supports plaintiffs theory that in the 1958 lease Ben authorized and empowered his wife Esther to lease the entire property. On the other hand, neither does the dicta in Wright necessarily foreclose the possibility that Esther was entitled to do so.
In 1972, the only actual authority Esther Kert had, other than her unexercised dower right, was by virtue of the undivided half of the estate she was to receive under the will of her deceased husband and also that which she had as a signing party to the lease. Defendant argues that, for this reason, the amendment to the lease should be rescinded due to mutual mistake. The mistake defendant sees is the alleged belief of both plaintiff and Esther Kert that either Esther Kert was the sole owner of the property in question, or else that she had authority to lease the entire property independently.
A contract may be rescinded because of mutual mistake of the parties. However, such rescission is an equitable remedy, which will be granted only in the sound discretion of the trial court. Thus, for a mistake to mandate rescission, several hurdles must be cleared. First, there must have been a belief by one or both of the parties not in accord with the facts. The record here to support that conclusion is weak. For example, in the absence of a title search, it is hard to see how defendant could claim that Shell had a reasonable belief that Esther was a tenant by the entirety. Since Esther has not testified, it is equally difficult to find record support for defendant’s claim that Esther believed she was a tenant by the entirety. Second, the erroneous belief must relate to a basic assumption of the parties upon which the contract is made and which materially affects the agreed performances of the parties. Even if we were to assume these tests are met (and we do not), there still would be the question whether rescission would be equitable.
In arguing that the alleged mistake here was one mandating rescission, defendant primarily relies on two cases whose facts are arguably similar. In Moritz v Horsman and Walter v Walter there were mistakes by contracting parties as to who possessed title or interest in property. Significantly, however, the Supreme Court in both of these cases stressed the equitable aspects of the facts. In Moritz, the Court said that rescission depends on whether the case falls within "the fundamental principle of equity that no one shall be allowed to enrich himself unjustly at the expense of another by reason of an innocent mistake of law or fact entertained by both parties.” In Walter, the Court closed its opinion by noting the avarice of the son who was attempting to deprive his father of his home.
Here, we can see no unjust enrichment to Shell because of the extension of the lease. Defendant does not argue that the rental price agreed upon is unfair or insufficient, nor that unfair advantage was taken of Esther Kert by plaintiff. Indeed, rescinding this contract would thwart the $200,000 that Shell claims it expended in apparent reliance on this contract, as well as perhaps enriching defendant by the value of the improvements with out any fair payment for those improvements. In any event, even were we to decide from these ambiguous facts that such a mistake was made, the equitable considerations are not such to warrant our holding that the trial court abused its discretion on this issue. Consequently, we decline to rescind the amendment for mutual mistake.
Next, we address the question whether Esther Kert, as a party to the lease and with a cotenant’s interest in the property, had the power to bind her cotenants, the other heirs of Benjamin Kert’s estate, by amending the lease to grant Shell an option to extend the lease for another ten years to 1994 at an increased rent. If not, then we must determine what remedy is appropriate for this situation.
It is interesting to note that the trial court made two apparently inconsistent rulings on this question. At the hearing on the motions for summary disposition, the judge made the following remark:
I am not going to rescind the 1972 amendment. I’m not going to do that. And I’m going to indicate that Esther Kert and the defendants own the subject property as tenants in common, and that Esther Kert was able to bind herself to her interest only in executing this particular matter. [Emphasis added.]
Yet, in the order dated June 23, 1986, the trial court held:
It is hereby ordered and adjudged . . . that Plaintiff, shell oil company’s lease rights pursuant to the terms of a lease amendment with Defendant, Esther Kert, dated June 29, 1972, . . . in- eluding the options extending the term of the original lease agreement between Shell Oil Company and Ben and Esther Kert, dated July 10, 1958, are valid and bind the heirs at law of Ben Kert. [Emphasis added.]
We share the trial judge’s difficulty in resolving this hard issue. As a party to the lease, Esther Kert could exercise any rights that might fairly be said to arise from the lease. We do not believe that giving Shell options to extend the lease for ten additional years falls within that area of power. Merely because she was a party to the lease did not give her that power. But, when she did sign an agreement with Shell in 1972 to give Shell options to extend the lease from 1984 to 1994, the heirs stood by and did nothing. Under Benjamin Kert’s will, Esther Kert received a one-half interest in the real property and thus, eventually after 1984, she became a tenant in common as to that fraction. At the very least, she could grant an option to extend the lease for another ten years with respect to her undivided half interest as tenant in common. Should the estate be granted what amounts to a belated veto power over Esther’s actions in amending the lease with respect to the other undivided half? We think not in view of the facts in this case.
While in general, absent any agency, a lease or other disposal of real property by one cotenant can bind her share of the property only and is not binding on the remaining cotenants, that is not the whole story here. Esther Kert was a party to the 1958 lease. After her husband died in 1969, she received the rent from Shell under the lease. In 1972, she and Shell agreed in apparent good faith for the two additional five-year extensions of the lease at an increased rent that would, if exercised, give Shell possession until 1994. There can be no question that Esther Kert, as a tenant in common as to an undivided half interest, could bind her fractional share. The heirs who are the children and grandchildren chose to stand by and do nothing from 1969, when Ben died, until 1984, when proceedings for probate of his estate were commenced. The rent that was paid was assumed to be for the entire premises, not for an undivided half interest in the premises. The expenditures made by Shell were in reliance upon the written amendment of 1972 and the duly exercised options. Under these circumstances, the estate of Ben Kert and the named heirs are bound by the 1972 amendment or, at the very least, are equitably estopped at this late date from forcing a renegotiation of the lease. Any other result would be grossly inequitable. In this connection, we also note that defendant estate and defendant heirs do not include in their pleadings a prayer for relief against Esther Kert.
We have already said that we will not rescind the 1972 amendment that grants the extension to 1994. Equity demands, however, that the estate, or at least the heirs, have some right of accounting and compensation for the ten-year added encum-berance of its interest in the property. We believe, and indeed the parties seem to agree, that the estate is entitled to an accounting from its coten-ant for the last ten years of the extended lease, namely, the period from 1984 to 1994. Further, MCL 554.138; MSA 26.1108 expressly gives a tenant in common a right of action against its coten-ant "for receiving more than his just proportion of the rents or profits of the estate owned by them as . . . tenants in common.” The parties’ only disagreement seems to be over the identity of the cotenant referred to in the statute. Defendant says that the statute refers to plaintiff, and plaintiff says that it refers to Esther Kert.
In support of its argument that it is entitled to recover from plaintiff instead of Esther Kert, defendant cites the ninety-five-year-old case of Fen-ton v Miller for the proposition that when a lease is given by one of two or more persons owning the premises as tenants in common, the lessee becomes, for the term of the lease, substantially a cotenant of the nonjoining party. We are unable to find such a holding in Fenton. In fact, neither party has cited us a Michigan case which clearly rules on this issue.
We reason this way. Had the estate and Esther Kert jointly granted a lease to plaintiff, each would be entitled to a portion of the rent received from plaintiff commensurate with its fractional share as a tenant in common. Then, had Esther Kert received more than her commensurate net share of the rent less allocable expenses, the estate would be entitled under the statute to bring an action for recovery of the excess. No one could fairly suggest, however, that either the estate or Esther Kert would, in that situation, be entitled to a share of the profits received by plaintiff during its lease of the property from them. The expected profit of a tenant is one of the important elements a landlord considers when setting the amount of the rent. We do not believe that the estate should now be entitled to some share of plaintiff’s profits merely because plaintiff rented an undivided half of the property instead of the whole thing, while paying rent under the supposition that it had rented the whole thing. Had Esther Kert herself realized profits other than rent from the property, it would seem that the estate would be entitled to a share. The only thing she obtained, however, was rent. Plaintiff is not a cotenant with the estate merely because Esther Kert is plaintiffs landlord. The only right of recovery the estate has is against Esther Kert.
In summary, for the reasons delineated in this opinion, we hold that (1) defendant’s request for rescission of the lease on the ground of mutual mistake is denied, (2) the rights of plaintiff Shell under the lease of July 10, 1958, including the amendment to the lease of June 29, 1972, granting plaintiff Shell options to extend the lease to a date in 1994, are held valid, (3) under the particular facts of this case, the lease amendment of June 29, 1972, is binding upon the estate of Benjamin Kert and the heirs named in this proceeding and, therefore, we decline to award the estate of Benjamin Kert and the named heirs any relief against Shell; (4) defendants, Esther Kert, the estate of Benjamin Kert, Janet Scheinfield Levenson, Betty Schwartz, Samuel Scheinfield, Dennis Scheinfield, and Harriet Housman, personal representative of the estate of Benjamin Kert, are tenants in common with respect to their interests in the real property, and (5) defendants, the estate of Benjamin Kert, Janet Scheinfield Levenson, Betty Schwartz, Samuel Scheinfield, Dennis Scheinfield, and Harriet Housman, personal representative of the estate of Benjamin Kert, are entitled to an accounting from Esther Kert for net rents received by her from Shell under the lease for the period starting with the effective date in 1984 when the first option under the lease amendment of June 29, 1972, was exercised and for the. balance of the lease as extended, but not for the period prior to 1984.
Consistent with this opinion, the trial court’s judgment is affirmed in part and reversed in part. No costs, neither party having prevailed in full.
The deed ran to "Ben Kert, his heirs and assigns forever,” but did not describe Ben’s marital status.
The rent under the lease and renewals was computed on a cents per gallon of gasoline delivered to the station, with a floor (a minimum) and a ceiling (a maximum) per month.
See Michigan Land Title Standards, 4th ed, prepared by the Title Standards Committee, Real Property Law Section, State Bar of Michigan, Chapter IV, Dower, Standard 4.1.
See Rogers v Rogers, 136 Mich App 125, 134-135; 356 NW2d 288 (1984), lv den 424 Mich 868 (1986)
150 Mich 7; 113 NW 779 (1907).
Id., pp 18-19.
That if the lessors (Benjamin Kert and Esther Kert) received an offer to buy, Shell could meet that offer and purchase the premises.
Sherwood v Walker, 66 Mich 568; 33 NW 919 (1887).
Dingeman v Reffitt, 152 Mich App 350, 355; 393 NW2d 632 (1986).
Id., pp 355-356.
305 Mich 627; 9 NW2d 868 (1943).
297 Mich 26; 279 NW 58 (1941).
Moritz, 305 Mich 634, quoting Reggio v Warren, 207 Mass 525, 534; 93 NE 805 (1911).
Walter, 297 Mich 31.
The lease permits Shell to remove improvements on expiration. Consequently, defendant would not be enriched unless the improvements were left behind.
This assumes Esther Kert elected to take under Ben’s will. The record that we review does not clearly indicate which election Esther made.
Walker v Marion, 143 Mich 27; 106 NW 400 (1906); Moreland v Strong, 115 Mich 211; 73 NW 140 (1897).
94 Mich 204, 214; 53 NW 957 (1892).
Walton v Walton, 287 Mich 557; 283 NW 687 (1939).
The pleadings do not make it clear that the daughters and the grandchildren desire an accounting from Esther Kert. Thus, the accounting to which we refer is left for their decision. | [
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Champlin, J.
Action was brought before a justice of the peace by plaintiff, as a corporation, to recover from the defendant a balance claimed to be due on a promissory note which, with the endorsements thereon, are as follows :
“ $160.00. Weston, Mioh., Sept. 6, 1879.
On or before the first day of December, 1881, for value received, we, or either of us, promise to pay to the order of Arbuclde & Ryan, Toledo, Ohio, four hundred and sixty dollars, payable at C. C. Wakefield & Co.’s Bank, Morenci, Mich., with interest, and if not paid when due, at eight per cent, per annum from maturity, payable annually, until paid.
The drawers and endorsers severally waive presentment for payment, protest, and notice of non-payment of this note.
Mart A. Klink.”
On the back of said note was the following endorsement, viz.:
“ $288.22. Paid November 29,1881, two hundred eighty-eight and 22-100 dollars.”
Also the following:
“ On all sums paid hereon before maturity, a discount at the rate of seven per cent, per annum shall be allowed from the time of such payment until maturity hereof.
Dated September 12th, 1879.
Arbucklb & Ptan,
D. B. Morgan, their Attorney.
Mart A. Klink,
H. C. Pratt, her Attorney.”
Also the following:
“By virtue of an article of arbitration, executed Sept. 8, 1879, by Arbuckle & Ryan and Mary A. Klink, submitted to me as arbitrator, 1 do hereby find that the sum of one hundred and eighty dollars and thirty-two cents ($180.32) should be, and said sum is hereby endorsed by me, in reduction of the principal sum of said note.
Dated September 12th, 1879.
Edwin Hadlbt, Arbitrator.”
Also the following:
“ For value received, we guarantee the collection of the within note, to Russell & Co. or order, and waive protest, demand, and notice of non-payment thereon.
Arbucklb & Rtan.”
At the time of joining issue, this note, as it appears above, was filed with the justice and declared upon orally. Defendant pleaded orally the general issue and gave notice of recoupment.
The cause was tried before a jury and judgment rendered for the plaintiff, from which a general appeal was taken to the circuit court for the county of Lenawee, where the case was again tried upon the issue as framed, and judgment being rendered for the plaintiff, defendant brings the case here for. re view on writ of error.
There was evidence introduced tending to prove that the plaintiff had acted as a corporation, and also tending to prove the signatures of Arbuclde & Ryan to the guaranty endorsed upon the note, and, after making proof of the balance claimed by the plaintiff to be due, and that the $180.32 endorsed by the arbitrator arose out of a claim for damages made by defendant on account of the machine for which the note was given not having been delivered as soon as the contract called for, the plaintiff rested. No testimony was offered by defendant.
The defendant insists that the guaranty endorsed on the back of the note signed by Arbuclde & Ryan did not pass the title to the note to Russell & Co. It was held otherwise by this Court in the case of Green v. Burrows 47 Mich. 70. The only other contention is that defendant should have been allowed a discount of seven per cent, on the $180.32 endorsed by the arbitrator, in reduction of the principal sum, as payment made under the agreement endorsed on the note. The circuit judge held that it was not to be regarded as a payment, but as so much stricken from the'face of the note, in which we. entirely agree.
The judgment of the circuit court is affirmed.
The other Justices concurred. | [
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Champlin, J.
On May 12, 1880, Julius Zoellner died intestate, leaving Mina Zoellner, his widow, and three children by a former wife — two of whom are minors — his only heirs, him surviving. At the time of his death he was seized in fee of a half lot on Larned street, in Detroit, upon which was situated a two-story house, so constructed as to permit its being occupied by two families. The upper or second story had for some time been rented, and the lower or first story was, at the time of his death, occupied by him and his family as a homestead. The value of the property is about $2800.
After his death proceedings were had to administer his estate in the probate court for Wayne county, commissioners ■on claims appointed therein, who, on October 17, 1881, duly allowed a claim in favor of the widow and appellant, amounting to the sum of $695.44, which claim remains unsatisfied, and is the only claim remaining against the estate; and the only property belonging to the estate, and out of which such ■claim could be paid and satisfied, is the half lot above ■described, the property involved in this suit.
After the death of Zoellner, appellant, — his widow,— together with the two minor children, now of the ages of 17 and 15 years, remained in the possession and continued in the occupancy of such homestead for about six months, when the guardian of such minors removed them, after which the widow — appellant—remained in the occupancy and is now in the occupancy thereof, claiming the right to remain in the possession as a homestead, she being possessed of no homestead in her own right. The widow — appellant—has also ■collected and received the rent of the upper portion of the -house.
The original bill is filed by the two minor children, the general object of which is to obtain a partition and sale of the premises, an.accounting for rents received, and the charging for the occupancy by the widow, and a division of the proceeds of the sale after the payment of the claim allowed by the commissioners in the matter of the estate.
The widow filed a cross-bill for the purpose of having her ■claim declared a lien on said estate enforceable by sale after the infant heirs shall have attained their majority. The ■original and cross-bill were heard together on the pleadings •and proofs.
The decree, entered December 14, 1883, declared said widow’s claim to be a lien on said premises, and ordered the widow to account for two-thirds of the rents received by her from January 15, 1881, for the upper portion of said house, ¡and also for two-thirds of the rental value of the lower part thereof from May 12, 1881, that being one year from the time of her husband’s death, and that the same be applied towards the payment of her said claim; and that the premises be sold and the balance of said claim paid, the widow’s ■dower be set out to her, and the balance of the proceeds distributed equally among the three heirs, and the cross-bill be dismissed.
The questions involved in the original suit, as stated by ■complainants, are:
1. Can the widow successfully resist the partition,’ and exclude the heirs from the enjoyment of said premises because of any homestead rights she may have therein?
2. Is not two-thirds, at least, of the rent received by the widow for the tenement part of said premises a proper set-off against her said claim ?
3. Ought the decree to order the widow to account for Moo-thirds of the value of the use and occupation of the lower part of said premises after the expiration of her quarantine, and apply the same as an equitable set-off in payment ■of said claim ?
All parties concede that the lands cannot be partitioned by metes and bounds, or by any other way, except by sale and division of the proceeds: The estate has never been closed
by the administrator, and there is no .way of paying the debts, except by sale of the real estate.
The claim made by the widow, who has brought the case here by appeal,.is as follows:
“(a.) The widow had the right to remain iii the occupancy for one year after her husband’s death. How. Stat. § 5755. After this time, she, together with the two minor children, the complainants in this case, had a right to the occupancy thereof. This was a right which each possessed, and the ■children are not in a position to leave the premises and thereby cut off a right which the widow possesses with them. The minor children may abandon the right possessed by them with the widow, but this would not amount to an abandonment by her of her right. The children in such case are •certainly not in a position to complain against her claiming or refusing to abandon her right. The question as to whether Mrs. Pettiford, one of the children who has attained her majority, and who is made a defendant, could maintain such •a bill, is not involved in this case.
(b.) After the death of Zoellner, the guardian of the minors collected the rent of the upper portion of the house for two months; after that, by an agreement made by him with appellant, she was to collect and receive it, and she thereby became the agent of the guardian for that purpose. If she is accountable at all, she is accountable to the guardian and the child who has attained her majority, and should not be made to account in a bill brought by the minors. She is also entitled to what she h'as expended for the minors, and also her expenditures upon the house and made by her, and the decree in this ease entirely disregards such claim.
(c.) The appellant is entitled to dower in the property in question, and independent of any homestead right therein she had a right to continue to occupy the same. Although the children had the same right, they did not see fit to avail themselves thereof. Her occupancy was not objected to; she did not receive any rent for the premises so occupied by her, and she cannot now be held chargeable for such occupancy by herself. How. Stat. § 5744.
{<%). The property in question, being a homestead, was exempt from the payment of the debts of deceased during the minority of the children. Const, art. 16. If sold at all by the administrator to pay debt, such sale would have to be subject to the homestead rights therein, and it is questionable whether this could be rightfully done. Showers v. Robinson 43 Mich. 502. The lot is the only property of the estate and the only assets thereof, and is needed for the payment of the debt, which is a lien thereon. Drake v. Kinsell 38 Mich. 232.
As it is questionable whether the lot could be sold, and as the administrator has taken no steps to pay the debt, and as such debt might cease to be a lien on the property by the lapse of time (Pratt v. Houghtaling 45 Mich. 457), the claimant would be entitled to have such lien preserved to her by decree declaring her debt to be a lien on the property, enforceable by sale under such decree, and in this view a decree should have been granted her as prayed for in the cross-bill.”
The case presents some novel questions. Hnless there are creditors at the time the owner of a homestead dies, and the estate aside from such homestead is insolvent, no- homestead right attaches in favor of the widow or children, and the premises pass at once to the heirs, subject to the widow’s right of dower. Here the widow claims a homestead. She is the only creditor. Were it not for her claim as a creditor of the estate it would descend immediately to the heirs of the deceased. There is no property to pay debts except, the homestead property, and this she insists shall not be sold, because it is exempt from sale during the minority of the children; and for the same reason she claims she has the right of possession during such minority, but fearing her claim as a creditor may become barred by the Statute of Limitations before the youngest child reaches its majority, she asks that she may be decreed to have a lien upon the land, and the right to enforce it as soon as her homestead right ceases. Moreover, she claims that she has a right of dower in the homestead property, and a right of possession under that.
So far as the cross-bill is concerned, and the relief asked under it, the widow stands in no better position than any creditor would who does not bear the multigenerous relations to the estate that she does. She is a simple contract creditor, and must enforce her rights and pursue such remedies as are open to such creditors. The Constitution, by artiéle 16, § 3, provides that “ The homestead of a family, after the death of the owner thereof, shall be exempt from the payment of his debts contracted after the adoption of this Constitution, in all cases, during the minority of his children.” And section 4 is as follows: “ If the owner of a home-. stead die, leaving a widow but no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner of a homestead in her own right.” . It is under these provisions that defendant claims she has the right to occupy the whole of these premises and to receive the rents and profits during her widowhood. Whether she claims the right as a part of the family of the deceased, or as his widow, having had no children by him, is unimportant, in the view we take of the rights of the parties to property situated as this is.
In eases where the homestead can be partitioned by metes and bounds there is no difficulty in partitioning the same among the heirs entitled, subject to the homestead right of possession until its termination. But in cases where such partition cannot be had, and can only be made by a sale of the property and a division of the proceeds among the heirs, difficulties present themselves at once. A sale of the property would terminate the homestead right, unless the sale should be made subject thereto, and a sale of this kind would be very likely to result in a sacrifice of the property, for reasons which were quite fully pointed out in Showers v. Robinson 43 Mich. 502. In a case where land is subject to a homestead interest of the widow and minor children, and is within the constitutional limitations as to quantity and value, and cannot be divided in proceedings for partition, I do not 'think such homestead can be sold under proceedings for partition, since the effect of such sale would be to divest the widow or minor children of their constitutional right to a homestead. In other cases, where the premises are susceptible of partition without sale, I can see no reason why such partition may not be had, under the decision of this Court in Robinson v. Baker 47 Mich. 619.
But the homestead set up in the pleadings in this case, while within the limitations as to quantity, exceeds the limitations as to value, and the defendant concedes in her answer that it cannot be so partitioned as to preserve her homestead. The statutes have made no provision for the preservation or protection of a homestead, in property so circumstanced, for the benefit of the family or widow of the deceased. It was not until 1861 that the Legislature made provision to secure to a debtor the benefit of the homestead in cases where the land exceeded the limitation of value and was indivisible, by allowing a sale of the whole and paying over to the debtor the value of the homestead as fixed by the Constitution. How. Stat. §§ 7723, 7728, 7729. That statute only authorized a sale upon execution or decree to enforce a levy or lien upon the premises, and in case of sale the homestead value of $1500 is paid over to the debtor in lieu of a homestead exempted by the Constitution. It was competent for the Legislature to make provision for securing to the family or widow of the debtor, where the homestead claimed exceeds the value and is not capable of division, by exempting something out of it in lieu of it, of equivalent value ; but they have not done so, and the consequence is, as explained in Beecher v. Baldy 7 Mich. 488, no homestead exists in favor of the family or widow in the property described in the bill of complaint. It was subject to the dower of the widow, and to sale by the administrator for the payment of debts. It is also subject to be partitioned among the heirs. It undoubtedly results, in the situation in which the subject is left by the statutes, that in cases where the premises occupied by a debtor as a homestead exceed in value the limit of fifteen hundred dollars, and cannot be divided so as to carve out a homestead of that value, the family or widow may be left entirely without the benefits designed to be secured to them under the Constitution. We are powerless to afford relief, under existing laws, to those who are so unfortunate as to be left in that position.
The decree of the court below proceeded upon the assumption that the premises in this case were not subject to a homestead interest, and in this it is correct. How. Stat. § 5744 provides as follows: “ When a widow is entitled to dower in the lands of which her husband died seized, she may continue to occupy the same with the children or other heirs of the deceased, or may receive one-third part of the rents, issues and profits thereof so long as the heirs or others interested do not object, without having the dower assigned.”
Under this section of the statute the widow had a right to occupy the premises in question, with the children and other heirs, until some steps were taken to assign her dower or to partition the estate. She continued to occupy with the complainants until December, 1880, when these children were taken away and cared for by their guardian. This did not affect her right to occupy during the progress of the settlement, until dower assigned or steps taken for partition. No steps were taken toward assignment of dower, and the filing of the bill in this case was the first that was done toward •obtaining partition.
Under the facts of this case it would have been proper for the administrator to have taken possession of these premises, and to have leased them from year to year, and to have received the rents until the estate was settled or delivered over to the heirs (Act 236 of 1881), and had he done so, the rents would have necessarily been applied to the payment of defendant’s debt. She is the only one that could have received any benefit thereby, and was the only one directly interested in having him do so. It would have lessened the indebtedness of the estate to her, and relieved it pro tanto of the burden. She having received the rents of a portion of the premises and occupied the rest, it is equitable that she should account in this proceeding for two-thirds of the rent received, and two-thirds of the rental value of the portion occupied by her since the commencement of this suit. Since she is the only creditor, and therefore the only one entitled to such application of rents and profits to the liquidation of claims against the estate, this may be done without bringing in the administrator as a party. And as all parties interested are before the court, there is no obstacle in the way of treating defendant Mina Zoellner’s claim as a specific lien, and whatever balance may be found due to her may be paid out of the proceeds of the sale before distribution. The evidence shows that defendant Mina paid taxes, water rates and insurance, and also made some repairs, amounting in all to sixty-six dollars and sixty-eight cents. They are items which would have been allowed to the administrator if he had taken possession and received the rents, and should be allowed to her in this accounting.
The decree below must be modified so as to conform to the views above expressed, and a decree entered here accordingly, and the cause will then be remanded to the court below for farther proceedings. The complainants are entitled to costs.
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Champlin, J.
This suit was instituted to recover damages for breach of a written warranty of title of certain personal property claimed to have been sold by defendant to plaintiff! The case has been once before in this Court, and is .reported in 44 Mich. 92.
On the trial it appeared that the written warranty declared npon was given some time after the purchase of the property, and dated back. Evidence was also given of a verbal warranty. After the testimony was put in and the witnesses discharged, and while argument was being made, the plaintiff asked leave to amend his declaration so as to allege a verbal warranty of title made at the time of purchase. The defendant objected, for the reason that he was not prepared to meet this new claim, and requested time to put in a plea, and that the case should go over the term. This the court refused, and gave plaintiff leave to amend, as requested, and the defendant leave to plead the statute of limitations, and that the amendments should be considered as made and the cause proceed. This was erroneous.
The amendment materially changed the issue between the parties. It struck out the written warranty and substituted an allegation that the defendant expressly promised the plaintiff that he owned the property and had a right to sell and dispose of the same, and would protect and defend the title against all persons whatsoever in said plaintiff, and indemnify him in case of the failure of the title thereto. The defendant was entitled to the usual option in such cases, either to proceed with the trial or that the case be continued, on payment of his costs for the term.
Without passing upon the other errors alleged, the judgment is reversed with costs of both courts to defendant, and. a now trial ordered.
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Sherwood, J.
This is an action of assumpsit, based upon the statute giving a party the right to break jams and run logs when the owner neglects to do so to the in j ury of others having logs to run, above him in the stream. See How. Stat. § 2035.
In Alcona county is a stream known as West Branch, which empties into Hubbard lake. Two creeks known as Brown and Comstock, unite about five miles from the lake and form West Branch. About one mile from the mouth of the West Branch, up the stream, enters what is known as Butterfield creek. These streams are all largely used for lumbering purposes. 0
In the winter of 1880 and 1881 the plaintiffs put in and banked upon Butterfield creek 1,600,000 feet of logs, and at a point below these and near the junction with West Branch, defendant Gilchrist had put in and banked on the creek about 1,400,000. The defendant’s logs on this stream were piled in the channel and extended entirely across the stream, so as to wholly obstruct its navigation in the spring of 1881. Mr. Comstock also had a large quantity of logs in the West Branch, between Butterfield creek and the lake, and defendant Gilchrist also had a large quantity of logs then upon that part of the stream. Other parties had also large quantities of logs above the plaintiff on the West Branch and the Butter-field, as well as on each of the other creeks. All these logs had to be brought out of the creeks and down the West Branch into the lake, and then formed into rafts and taken to market or place of manufacture.
Butterfield creek is a small stream, and in order to float logs upon it they must be moved during high water or a freshet, which usually occurs in the spring. The plaintiff called on the defendant in March and told him he wanted him to see that his logs were taken out so that plaintiff could get his through. Defendant answered that he had let his logs to Bewick, Corn-stock & Co. to drive, and that plaintiff would have to see them. Plaintiff saw Comstock and notified him that he wanted him to move the logs.
Nothing appeal’s upon the face of the declaration showing other parties interested in the claim made by plaintiff. If other parties should have been joined, the question should have been raised by plea in abatement, and it is now too late to take advantage of such error. The suit is also properly brought against the defendant, if it can be maintained at all. Hall v. Tittabwwassee Boom Co. 51 Mich. 377. His employees are under no obligation to the plaintiff, statutory or otherwise. It was the duty of defendant to see to it that he did not obstruct the water-course.
A portion of the claim of the plaintiff was for work done in driving logs and clearing channel in West Branch. These charges are objected to, and we think properly so. There is no claim made for the same in the declaration.
All persons have an equal right to the use of the stream, and one cannot occupy it to the exclusion of another any longer than may be necessary to float his logs down upon the natural current. When the stream is occupied miles in length, as in this case, by logs of different persons, the person in first has the right to claim the use of the current first, and if the party in first uses all the force necessary to drive his logs he cannot be made liable in this action under the statute.
The defendant’s logs and others were in the West Branch, above and below and oyDposite the entrance of Butterfield creek into the branch, and it was claimed the mouth of the creek was blockaded by the defendant’s logs, so that plaintiffs’ logs could not be taken into the branch, and defendant proposed to show that all reasonable means and sufficient force to drive the logs in the branch as fast as they could be driven were used; and this was objected to by plaintiffs’ counsel and the ruling sustaining the objection was excepted to by defendant. We think the exception well taken. Under the circumstances proposed to be shown no liability whatever would attach to defendant.
The defendant was also on the trial held liable for the expense of making space to receive the plaintiffs’ logs after the Gilchrist logs had been put into the West Branch. This was error as we have said — no such claim is made in the declaration ; besides, the logs in West Branch were mixed, belonging to several different parties. The court’s refusal to charge in accordance with defendant’s requests upon these points is also error.
The testimony further shows that a portion of the claim made on the trial was for rolling defendant’s logs from one hundred feet back of the banks into the stream. This is not permissible under the statute. It is for breaking jams and driving logs in the stream to clear the channel that allowance is authorized, and it was error to’ admit testimony of that character.
We do not think the conversation with Blair was competent and admissible. He was a man in the employ of Bewick, Comstock & Co., and held no relation with the parties which would make what he said binding upon the defendant. It might not have prejudiced the right of the defendant; but when the effect is doubtful it would be dangerous to allow the judgment to stand.
We also think it wTas competent for the defendant to show that the plaintiff had no boom on the West Branch, near or at its mouth, to receive these logs. It tended to show the surroundings of the situation complained of by plaintiffs.
The plaintiffs offered evidence tending to show that the men were put on the defendant’s logs in Butterfield creek, and the work they did greatly helped to get the logs out of plaintiffs’ way and clear the channel for the logs, and that defendant did not furnish the necessary men for that purpose. To rebut this the defendant offered to show by the witness Blair “ that he was there supervising the matter; that he was looking after the creek each day, and he had sufficient men there to have taken out the Gilchrist logs in the quickest possible time, but that in his judgment it was useless to touch the Gilchrist logs up to the time that the plaintiffs commenced, and at the time the plaintiffs commenced on the logs to roll them in, that he then had sufficient force to have taken the Gilchrist logs and put them in and taken them away, and kept them away from the different logs behind, and that the reason why he did not do so was because plaintiffs took possession of the logs.”
We think the offered testimony should have been received. It certainly tended to meet the testimony of plaintiffs, and destroy the necessity which had to be shown to entitle the plaintiffs in any event, to recover. Either of the parties in this case had the right to float his property upon the current down these streams, and while thus floating it could not be disturbed or supplanted by any other person. It is only when a person so uses the stream as to unreasonably deprive another above 1pm of the benefit of the current or natural flow of the water, with jams or booms, that the statute allows the upper occupant to move -the obstruction caused by the lower, at the expense of the latter.
We have not considered the errors assigned seriatim. They are very numerous, and we have rather considered them in groups upon the various subjects to which they relate, and in this manner have noticed all needing consideration. We have also considered fully the charge of the court, which is not sufficient to cure the errors herein noticed.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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Campbell, J.
Plaintiffs sued and recovered below for the price of a wind-mill pumping apparatus which they claim to have sold defendants in the fall of 1873. The contract contained, as is usual, two branches — one declaring the duty of plaintiffs, and the other that of defendants. The controversy before us is chiefly upon the construction of this written agreement.
It provided — first, that plaintiffs would furnish and put up the machinery in question as described, and which was guaranteed to furnish an ample supply of water in any number of reservoirs which the party of the second part may make, “ and allow the party of the second part six months’ time to test the same, and if at that time said wind-engines and fixtures shall be accepted by the party of the second part,” then there was an undertaking that it should be made to work properly for a period named. It closed with this provision: that the defendants, “ if the aforesaid wind-engine shall be erected in the manner and perform the work as set forth in this article,” should pay the party of the first part two hundred and eighty dollars in September, 1874.
Within the six months specified difficulties arose concerning the responsibility for which the parties are in conflict, and defendants refused to accept the property. This suit was brought shortly before the statute of limitations would have run, to collect the agreed price. The court below allowed a recovery, provided the jury should be satisfied that plaintiffs had furnished such work as they agreed to do. There are special findings on various parts of the case. The primary dispute is whether the defendants had a right to decline acceptance if they were not satisfied with the work.
Plaintiffs claim that the last clause of the contract is complete and independent of any other conditions not expressed in it. And they claim that the clause providing for acceptance has no force beyond entitling defendants to the guaranty of good repair in case the work was accepted. And it is suggested that if not accepted the plaintiffs could recover the price without any such guaranty for the future.
This is certainly a possible construction, but whether it is the proper one is a different matter. If it is correct, it is at least very singular. It is difficult to conceive why, if the whole price is payable at all events, the important safeguard for secui’ing durability in the work should be forfeited by an omission to accept, when acceptance would be a mere ceremony of no importance whatever, and non-acceptance would in no way affect defendants’ liability to make'prompt and full payment.
It is insisted, ■ however, that defendants only wanted certain machinery for a particular purpose, and have no right to object if it is up'to the agreed standard, and therefore there is no sense in making acceptance or non-acceptance a criterion of liability. We think this idea cannot defeat the agreement of the parties if it does in fact make the question of acceptance one of the matters stipulated on.
When a village corporation desires to supply itself with hydraulic facilities, it is a matter of common experience that it cannot be readily computed in advance just. what will meet its supposed necessities. It is only by experiment that it can be known whether any proposed system will serve its purposes. Machinery may do all that it is warranted to do, and yet by its workings show that something else is required to supply the corporate needs. Most of the devices introduced here and there are urged not merely as calculated to do prescribed work, but also on the ground that this work is just what the town requires. New small corporations can afford expensive engineers, and even where such men are employed they are often found to have caused much expense for unprofitable outlays. It is certainly common and wise to be wary about adopting untried schemes. It is so usual to reserve a right to a preliminary trial, not to test particular •capabilities but to ascertain general fitness for general purposes, that where such provisions are inserted in contracts courts must see that they are respected. We think that in the present contract the clause providing for acceptance governs the whole of the contract, and not merely the right to a continuing guaranty, and that during the six months ■specified it remained optional with the defendants to keep •or not to keep the property, whether good or bad.
.This being so, the case was put to the jury on a wrong theory, and the recovery was not warranted.
It may be that acts may have been done or omitted which would involve negligence or fault in the defendants or their servants. It is claimed that such facts were shown here. But we do not think this inquiry open on the record in this action. We do not think that in such an action of assumpsit as this is, such controversies are pertinent. They would be more suitable in an action on the case. There is, so far as we can judge from what is before us, no ground for an implied agreement to pay for articles accepted and appropriated. There was no acceptance.
In this view of the contract we' do not think it proper to discuss the other errors assigned. If the village exercised its option and failed to accept the property, it never became liable as a purchaser, and the good or bad quality of the machinery would not change the responsibility. .
The judgment must be reversed and a new trial granted.
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Campbell, J.
Plaintiff sued before a justice of the peace, in replevin, to recover a buggy and harness which he had mortgaged to defendant, and which was foreclosed and sale made September 14, 1881, plaintiff standing by and not objecting. On the trial of this suit he testified that he was under age, and did not reach his majority until the 19th of the same month. It appeared from plaintiff’s testimony that he gave the morgtage to secure Emsley for endorsing a note with plaintiff, on which Emsley, for anything that appears, continued legally responsible. Plaintiff swears he did not pay it himself.
The justice struck out plaintiff’s testimony concerning his age, on the ground that it was not the best evidence, — and in this he was wrong. Plaintiff took certiorari to the circuit court of Gratiot county, where the judgment was reversed. It is brought here on error.
In the circuit court the objection was taken that inasmuch as the writ was not served on the justice within ten days, and no other time had been fixed, it should be dismissed. By How. Stat. § 7038, it is expressly required that service shall be made within ten days after the writ issues, or such other time as may be fixed by the officer allowing it, together with the bond and affidavit, and fees for making return, “ and no certiorari shall be of any effect until all the preceding requisitions shall have been complied with.” The writ was issued December 29,1881, and the service made on the justice, January 9, 1882. This left ten clear days, without counting either the day of issue or the day of service. The case seems to fall within the statute, and the motion to dismiss ought to have been granted, as the irregularity was sufficient, and the case entirely wanting in merits.
But we are not disposed to decide the case on this merely technical ground. The case was before the justice on testimony for plaintiff and testimony for defendant. Had the testimony concerning the age of plaintiff been received and retained, it by no means follows that the justice would have been bound to give it full credit, or that defendant might not have contradicted it. There were circumstances sworn to by plaintiff which threw doubt upon it. He had, as he swears, been doing business for himself, buying and selling buggies and horses, and giving his notes, for three years, which, if his statement of his age was true, must have made him a business man when he was a boy of between seventeen and eighteen. It is possible for boys to obtain credit as such, no doubt, but it is not so common that they can usually do so without either appearing to be men, or else keeping up such business conduct as would not have given rise to this litigation. The fact of age would have been open to dispute.
If such an error had been committed in a circuit court, the only result would have been a new trial, when all these matters could be litigated. jBut when a justice’s judgment is reversed on certiorari the whole cáse falls, whereas on appeal the appealing party will prevail at the circuit on a trial of the facts if he makes out his case, but the adverse party also has a fair chance to meet that case.
It is not the proper office of a certiorari to reverse proceedings on defects which are not calculated to reach the substance of the controversy. The statute contemplates that on a certiorari from a justice the appellate court may do substantial justice on the whole merits. But this is impossible where the reversal is for the exclusion of testimony which is not of a conclusive character. And it may easily happen that a reversal in such a case may be had, to a destruction of justice, by loss of remedies, or other circumstances of prejudice. While there may not be an absence of jurisdiction to issue a writ in such cases, it is usually a bad practice, and should not be encouraged unless circumstances are exceptional. The conditions of appeal are as readily performed as those of certiorari and the remedy is far more appropriate.
In the present case, whatever may be plaintiff’s rights, if he really was a minor, there is nothing on the record to indicate that he could insist on them honorably. The case does not appeal to indulgence. We think the writ was improvident^ granted.
The judgment of the circuit court muse be reversed and the certiorari dismissed.
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Cooley, C. J.
This case involves the validity of the will of William II. Rice, late of the county of Kalamazoo. A verdict against the will was set aside by this Court at the April term, 1883. 50 Mich. 448. The ease has since been tried with the same result as before, and the proponent has-again brought the case to this Court.
The objections to the will are — first, that the decedent'was insane at the time of its execution j and second, that its'execution was procured by undue influence brought to bear upon him by the proponent, who was his wife. When the ease was here before, it was shown that there was a finding by the probate court that- the decedent was insane and incompetent to manage his property, made a little later in the day on which the will was executed; but the insanity did not appear to be alleged in the petition on which the judge made his order, and for that reason the question of insanity was said by this Court not to have been before the judge for his decision. It is now shown, however, that the petition was erroneously given in the former record, and that in its allegations it was as broad as the findings of the probate court. The fact is immaterial, however, as the circuit judge instructed the jury that the testamentary capacity of Rice was not involved in or determined by the proceedings in the probate court.
Such testimony as was given of insanity tended to show not general insanity, but delusions on the part of Rice respecting the currency, political affairs and his own candidacy for office. The most strange and gross of them was that his services, were needed by the general government in the management of its financial affairs and that he was likely to be made Secretary of the Treasury. Rice seems to have been a man of considerable prominence in his county, and the so-called delusions were not necessarily inconsistent with testamentary capacity, but indicated rather inordinate and ridiculous conceit than insanity. They did not at all enter into or affect the provisions of the will, which was a plain-and sensible instrument, dividing the decedent’s property among the members of his immediate family, and containing no provisions from which, as they read, insanity would be inferred or suspected. And the evidence tended to show that the provisions of the will were dictated by the decedent himself, in a perfectly rational manner, on the day it was drawn and executed.
Several witnesses called for the contestants, after testifying to the facts tending to prove the delusions which have been referred to, were allowed to give their opinion whether the decedent had capacity to make the will in question, or to dictate its terms. Perhaps the evidence was admissible in every instance; but it is impossible to read the record without being convinced that the opinions testified to were formed mainly, and in some cases probably exclusively, on the talk of the decedent which indicated the delusions referred to, and that the witnesses, in giving their answers, were, in some cases at least, under a mistake as to the effect of such delusions upon testamentary capacity. Mischief from such evidence is likely to result, unless carefully guarded against by the trial judge in his instructions; but it must of necessity be left to him to give the proper cautions.
When the case was here before we had occasion to comment upon what we deemed “most remarkable evidence” “of statements made by decedent that his wife made the advances in courtship, and that on one or more occasions she inflicted outrageous personal injury upon him after marriage. No attempt,” it was then said, “was made to show that the decedent was really under delusion in respect to these matters, and the natural tendency of the evidence was' to prejudice the jury against the proponent, by leading them to believe or to suspect that she was an unworthy person, and undeserving of her husband’s bounty. But the existence of a delusion that his wife was unworthy of esteem, or was abusing him, would be a singular reason for setting aside a gift which he had deliberately made in her favor.”
This evidence is put into the case again, on what ground or under what excuse we do not understand, and are without any explanation from the contestants. It was very likely to have affected the opinions of the jury improperly on either branch of the case, and, if there were no other errors, would necessitate a reversal.
The contestants were permitted to give evidence tending to show that there was an ante-nuptial contract between decedent and the proponent whereby she acquired or was to have certain property. The judge correctly charged the jury that the existence of such a contract would not prevent the decedent making a will as he pleased; but the charge itself showed the error in receiving the evidence, which could have had no other tendency than to prejudice the jury against the will which was made, so far as it was beneficial to the proponent.
No reason appears in the record to justify the reception of evidence that on a certain occasion, when decedent was away from home with one of his sons, he wanted to stop at a Mr. Sweet’s to see Sweet’s daughter. As given in the record the-evidence seems to have been wholly irrelevant.
Mr. Sherwood, who was acquainted with the decedent, and had had interviews with him shortly before the will was executed, was asked his opinion upon the competency of the decedent to make or dictate a will dividing his property among the members of his family. An objection to thequestiori was sustained because it did not direct the attention to the will in question. As there is nothing complicated in the will, and it distributes the property among the members-of the family in a very simple way, the point of the _ objection is not apparent. If decedent had capacity for any will he had for this.
Dr. Foster Pratt, who knew the decedent, and who had seen and talked with him late in the summer or early in the-fall of 1879, was asked his opinion of his mental capacity. that fall, but was not allowed to answer. The reason for this ruling is not explained. Probably no other witness called in the case was so competent to express an opinion upon which the juiy might confidently rely.
Mr. Frank Dudgeon, who had had a wheat transaction with the decedent in the fall of 1879, which he detailed at large to the jury, was asked whether anything occurred • at-the time that indicated a want of understanding in decedent as to the business in which he was engaged. Also whether he saw anything that indicated mental derangement. Also-what his opinion was as to the decedent’s mental condition. These questions were all objected to and the objections sustained. They should all have been answered. The witness had shown himself quite as well entitled to speak to mental capacity as several of the witnesses for the contestants whose evidence was received.
Evidence was given by contestants that decedent had some deeds prepared at one time which were never executed, because, as he said, his wife would not sign them. Also that, when going home late one night, he expressed a fear that his wife would scold him, and did not propose to stay ■at home that night if she did. And other little things were proved, by themselves insignificant, which might possibly have been competent had there been any evidence in the ■case fairly tending to show undue influence, but not other-' wise. The record is bare of any such evidence.
The specific question was submitted to the jury whether the decedent was insane the day the will was made and the .guardian appointed. This question was objectionable in form, as keeping before the jury to the very end of their deliberations the fact of probate proceedings, which were well calculated to prepossess their minds against the will, though the judge in his instructions had in effect put them ■out of the case. But the question, under the circumstances, was likely also to be misleading, because it tended to lead the jury to infer that the existence of the delusions which the contestants had put in evidence as proof of insanity would be decisive of the case. This, as has already been •shown, would be an error. The real question in the case was whether the decedent, at the time the instrument in controversy was executed, had control of his faculties so as to be capable of making a sensible disposition of his property; and not whether he was mentally as strong as ever, and as free from error and delusion in his mental operations, or even whether he was capable of managing his business affairs with ¡skill or prudence. The judge of probate would seem, by his order, to have found Bice insane, as well as incompetent to manage his property: but the same judge afterwar-ds, in a hearing upon the will, held that on the day when he appointed a guardian for him Bice had testamentary capacity. This last finding is significant as tending to show the understanding of the judge of his first adjudication, and of the issue he then had before him. The question on the first hearing was only one of the competency of Bice to manage his property; and though insanity as well as incompetency was alleged, the insanity would be important in the case only .as a fact tending to support the main allegation of incompetency. It is neither usual nor proper, as a general thing, 4o recite in an adjudication the facts which lead the judge to Ms conclusion; but if they are recited it is still the main fact that is found, and the main fact alone that was necessarily involved in the issue. In this case, when the incompetency which was charged was fonnd to exist, the further finding of a fact upon which the incompetency may or may not, in the judge’s opinion, have depended, was, to say the least, superfluous, arid for that reason, or because it was set. out in the petition, may have been recited in the order appointing a guardian with little or no consideration of the fact alleged. Or as the term “ insane ” has no very definite and well-defined meaning in common use, and has been very often employed in this case in a sense perfectly consistent with testamentary capacity, the judge, if he made use of it deliberately, may have had, and very likely did have, a like sense in mind.
As the case must go back for a new trial it is proper to-add that the judge, in his instructions, sometimes spoke of the case as if there, were evidence of general insanity with lucid intervals. It does not appear that there was any such evidence.
A new trial will be ordered.
Campbell and' Champlin, JJ., concurred. Sherwood, J. did not sit. | [
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Cooley, C. J.
Action on the case to recover damages for an injury alleged to have been caused by the negligence of defendant’s servant.
The material facts are the following:. For many years the defendant has been owner of a farm near the city of Marquette, which has been under the general fhanagement of one Hodgson, his foreman or superintendent, who has leased small parcels to laboring men for cultivation. Upon these parcels potatoes and other vegetables have been raised, and the ground has been cultivated by the lessees with the assistance of their wives and children. In the year 1883 the farm was divided by a rail fence into two fields, in one of which there were some ten or twelve parcels of the leased land, and in the other thirty. The farm was formerly covered with timber, and many stumps still remain, which the superintendent when he finds them in the way of cultivation has been accustomed to remove by the use of dynamite. The dynamite is put up by the manufacturers in boxes made of rough boards in which it is covered and surrounded with sawdust,, and in the same box, but put up by themselves in a small tin box, are placed the exploders. These exploders are shaped like ordinary percussion caps, but are very much larger, and they are partially filled with a fulminate, which is exceedingly sensitive, and more powerful as well as more explosive than dynamite. It is liable to explode at any time if accidentally struck against a stone or any hard metal, or if picked with a pin or knife or touched with fire. A piece of dynamite is exploded by placing one of the exploders at the end with a fuse attached which is ignited, and stumps are blown in pieces by their use. In the spring of 1883 one of the wood boxes containing dynamite and exploders was deposited under what is called by some of the witnesses a temporary shed on the farm, where it had been placed by Hodgson. The shed was, made by placing a piece of scant-ling across the top of a stump, and sloping planks from this piece to the ground. The planks did not form a perfect enclosure, and it was in evidence that persons had sometimes gone under the planks to escape showers. The father of the plaintiff had done this a few days before the injury, and he had seen the box there partly uncovered with sawdust in it but he did not know what else. There were screws in the top boards of the box to fasten them down, and these were screwed in-and out with the fingers. The word “powder” was written conspicuously upon the box, but plaintiff and his father could not read, and had not been told that anything dangerous was stored there. The shed was distant from any public highway. A farm road which was used by defendant and his lessees ran from rhe direction of the city towards the leased parcels but without reaching any of them, and in passing from its terminus to the several parcels one would pass by the shed, but how near to it would depend upon the parcel to which he was going. One parcel was leased by the plaintiff’s father, and this was one of the nearest to the road and to the shed. He had leased it for some years; it contained a little less than an acre, and in 1883 he was paying rent for it at the rate of sixteen dollars an acre and had it planted to potatoes. In going to their several holdings the lessees crossed each other’s parcels as was found convenient, and also passed over land plowed by defendant for his own use. How near the plaintiff’s father would go to the shed in passing from the farm road m a straight line to his own holding is left uncertain on the evidence; it might perhaps be ten rods, or it might be less than one. There was no enclosure about the shed, and nothing to warn people away from it except the word “ powder ” upon the box. The superintendent went to the box for dynamite and exploders as he had occasion to use them. The evidence all tended to show that the handling of the exploders by persons who were ignorant of their nature, or were careless, or under circumstances rendering them liable to accidental concussion would be exceedingly hazardous.
On July 4, 1883, the plaintiff’s father was at work among his potatoes, and plaintiff, who was then eight years and four months old, went with a brother two years older to take the father his dinner. When they had delivered the dinner to him they worked for an hour or so destroying potato bugs, and then moved about at pleasure for an hour or so longer in the vicinity of their father’s work. The plaintiff looked into the shed and saw the' box there partly uncovered, and from the sawdust took out one of the exploders. He was aware of no danger from handling it, and thought no harm in taking it from the open box. After a little he picked up a small stone, as large as his fist, and holding the exploder upon another stone which he describes as being of the size of a spittoon, he struck it with the stone in one hand while holding it in the other, and with the third blow it exploded, breaking the stone on which it was held, and tearing from his left hand the thumb -and one finger. For this injury the suit was instituted.
The negligence charged, against the defendant was the-keeping of the exploders thus exposed and in dangerous proximity to where persons were accustomed to pass and repass, and where children like the plaintiff with,.childish instinct and without any knowledge of the great peril to which they were exposed might go to the open box and take and handle them.
When the case was submitted to the jury the circuit judge instructed them to return a verdict for the defendant. This he did upon the ground that it is the duty of parents to take care of their children, and to see that they do not commit trespass; and if they do not do that, but suffer the children to wander away upon other people’s property, the children go there at their own risk, and the negligence is contributory on the part of the parents in allowing them to wander where they have no right. And this negligence of the parents is for the purposes of legal remedy imputable to the children themselves.
The instruction was probably given in reliance upon Hargreaves v. Deacon 25 Mich. 2, which was such a case as the instruction supposed. Counsel for the defendant with commendable industry has collected and brought to our attention a large list of similar cases in which the same principle has been laid down and applied, and he insists that they are in their facts analogous to the present case. The children, it is said, were trespassers in going in or to the shed ; and even if it could be held that they wei-e licensed to go where they jdid, the result must be the same, since a license to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against accidental injuries. Ill. Cent. R. Co. v. Godfrey 71 Ill. 506.
This is the point upon which the case must turn; and it therefore becomes necessary to determine whether on the one hand the circuit judge was correct in holding the plaintiff to be a trespasser, or on the other the counsel are justified in regarding him as a licensee to whom the defendant owed no duty of protection.
It "is quite certain that the plaintiff’s father was not a tres passer in crossing the defendant’s land to reach the land he had leased. The leasing by implication gave a right of way of necessity, in order that he might render his tenement beneficial. Clark v. Cogge Cro. Jac. 170; Beaudely v. Brook Cro. Jac. 189; Pinnington v. Galland 9 Exch. 1; Pernam v. Wead 2 Mass. 203; Underwood v. Carney 1 Cush. 285; Pierce v. Selleck 18 Conn. 330: Holmes v. Seely 19 Wend. 507; Lawton v. Rivers 2 McCord 445; Thompson v. Miner 30 Iowa 386; Thomas v. Bertram 4 Bush 317; Tracy v. Atherton 35 Vt. 52; Wissler v. Hershey 23 Penn. St. 333; Mitchell v. Seipel 53 Md. 251 and the notes thereto: 36 Am. Rep. 415; Davies v. Sear L. R. 7 Eq. 427. The defendant, as the party creating this way, had the right to make out the line on which it should run ; and on his failure to do so, the right of defining it passed to his tenant': Holmes v. Seely 19 Wend. 507; and when it was once defined both parties would be bound by the lines so fixed. Nichols v. Luce 24 Pick. 102; s. c. 35 Am. Dec. 302. See O'Rorke v. Smith 11 R. I. 259; s. c. 23 Am. Rep. 440. But in this ease the way was marked out by neither party, and the tenant had for several years gone as was convenient from the end of the farm road to the land leased; not always on the same precise line, but probably without any considerable departure from the same general direction. No fences were built, or stakes set, or lines marked to indicate that from any portion of the land between the farm road and his own lot he was excluded ; and these facts seem to make out a practical agreement of the parties that the privilege of passing and repassing might be freely exercised within limits broader than an ordinary footpath, and that the tenant should be deemed within thelimits of his right if he did not depart altogether from the direct line between the end of the farm road and the lot which had been leased to him.
If however we are in error as to this, and the right of passage while not specifically defined is to be considered as only a license, the conclusion in this ease must still be the same. Licenses in general may be revoked by the licensor at pleasure ; but this license would continue while the lease was in force ; it had been created not exclusively for the benefit of the tenant but for the benefit of the defendant also; the tenant had paid rent on a leasing to which the license was a necessary incident, and his right to the enjoyment of it was as complete as the right of the defendant to the money he had received for the rent. The license was therefore a license coupled with an interest, and was not revocable while the lease was in force. Wood v. Manley 11 Ad. & El. 34; Hunt v. Rousmanier 8 Wheat. 174; Barnes v. Barnes 6 Vt. 388; Boults v. Mitchell 15 Penn. St. 371; Thompson v. McElarney 82 Penn. St. 174; Whitmarsh v. Walker 1 Met. 313; Giles v. Simonds 15 Gray 441; Smith v. Benson 1 Hill 176; Bonney v. Smith 17 Ill. 531; White v. Elwell 48 Me. 360; Miller v. State 39 Ind. 267; Lewis v. McNatt 65 N. C. 63. That the defendant might have restricted the privilege within the bounds of an ordinary footpath may be conceded; but it is enough for the purposes of this case that apparently he had not cared to impose such a restriction and certainly had not done so.
A person giving such a license, especially when he gives it wholly or in part for his own interest as was the case here, and thereby invites others to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of, or ought to know of, and of which they are not aware. This principle has been recently examined and affirmed by this Court in Samuelson v. Cleveland Iron Mining Co. 49 Mich. 164, 170, and again in McKone v. Mich. Cent. R. R. Co. 51 Mich. 601; and also, recently by the Federal Supreme Court in Bennett v. Railroad Co. 102 U. S. 580; and is too familiar to require further references. That duty was incumbent upon the defendant in this case.
But under the circumstances disclosed in this case the invitation to the tenant to come upon the land was an invitation which embraced his family also. The tenant was a la-' boring man, apparently of small means ; and it is customary for such men to be assisted in their manual labor by the members of their families: and the defendant must have understood that the persons who rented of him these small patches of land would be likely to avail themselves of the •services of their children in cultivating them. It was perfectly allowable for the plaintiff’s father to do this ; and del fendant would have had no right to keep the children from\ the field if he had been disposed to do so. "Whether they went to take their father his meals, or to give him more direct aid in cultivation, they went rightfully; and if the superintendent of defendant made their going dangerous, defendant was chargeable with the consequences.
The moving about of the children upon the land where they were at liberty to go, while they were not actually employed, was as much an incident to their being there as is the loitering or playing by children outside the traveled part . of the highway as they go upon it to school or upon errands. [Children, wherever they go, must be expected to act upon childish instincts and impulses ; and others who are chargeable with a duty of care and caution.towards them must cal* culate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken, Birge v. Gardiner 19 Conn. 507; Keffe v. Milwaukee &c. R.R. Co. 21 Minn. 207; Railroad Co. v. Stout 17 Wall. 657; Evansich v. Gulf &c. R. R. Co. — Tex. — s. c. 6 A. & E. R. R. Cas. 182; Nagel v. Mo. Pac. R. Co. 75 Mo. 653; s. c. 10 Am. & Eng. Ry. Cas. 702.
In this case a shed in which a dangerous explosive was stored was left only partly enclosed, and its structure and location were such as naturally to invite the entrance of children either for play or for shelter from sun and rain. Children were rightfully near it; there was nothing in its appearance to warn them off; it was not fastened against their entrance; and there was nothing about it to indicate that they would do injury or be injured by going there. The box containing the explosives seems to have had more the appearance of a box discarded as of no value and with worthless refuse in it than of a box which it was of the very highest importance should be guarded with sedulous care. It was never firmly fastened, and the only warning upon it was a word written upon a top board which was not always kept on. A man of ordinary prudence if told that so dangerous an article was so carelessly stored might well have deemed the statement incredible. We cannot under these circumstances say that the plaintiff’s father was chargeable with fault in not suspecting the danger and warning his children away from it, or that the child himself was blameworthy in acting upon the childish instincts and propensities which combined with the negligence of defendant’s servant to bring the danger upon him.
A new trial must be ordered.
The other Justices concurred. | [
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Campbell, J.
Respondent was convicted in Ionia county of the murder of his wife by poison, on May 9, 1882. The information sets out that the death was caused by a series of acts of administering arsenic with her medicine, beginning April 25, 1882, and continuing till her death. The body was taken up by the coroner on the 22d day of August thereafter, when a partial examination was had by local physicians, and the stomach and part of the rectum were removed and placed in one jar, and part of the liver and of one kidney placed in another jar, and these jars sent to Dr. Prescott, at the University, to be analyzed. He made an analysis in two different parcels of portions of the contents of each jar, making a single analysis of part of the stomach and rectum, and a separate one of part of the liver and kidney, but not taking any one organ by itself. On a subsequent occasion he made another examination of the brain, and of parts of the muscles of the calf of each leg. He found no trace of arsenic in the brain or calf. In each of the other analyses he found considerable quantities, estimated at from six to fifteen grains in the entire liver and one kidney, and fifteen grains in the stomach and rectum.
Upon the trial the testimony whereby it was sought to prove the death by arsenic, and the responsibility of respondent for causing it, was all circumstantial. It involved inquiries into the question whether the arsenic discovered was the real cause of the death as introduced into the body during life, and feloniously, and into the symptoms of the illness of deceased as those of disease or of poisoning by arsenic. Beyond this it covered testimony of the conduct of respondent, and some relations allowed to be gone into on the question of motive.
Upon the argument in this Court we called upon the counsel for the People to sustain the rulings complained of by the assignments of error, and being satisfied that the rulings were not in conformity with previous decisions of this Court, we dispensed with any full oral argument for the respondent, beyond his brief.
¥e do not propose to consider the minor questions of error, so far as they are not likely to involve difficulties hereafter. The jury lists will not probably be defective in the future, or defective in the same alleged way. Neither is it likely that further witnesses will be admitted hereafter of whose names and residences respondent has had no sufficient notice. And most questions of the order of proof can be disposed of in a general reference, without taking up all of the assignments singly.
In the case of People v. Hall 48 Mich. 482, we had occasion to remark upon the necessity, in homicide cases particularly, of keeping closely to the established rules, and of allowing no evidence of motive, and no other testimony beyond the main issue of the crime itself, until the testimony concerning the corpus delicti- has been completed. In the present case, while there was some departure from this order in other respects, the most important was in allowing testimony concerning illicit relations between respondent and a woman who had once lived in the neighborhood at a period considerably earlier than the wife’s sickness, to be shown, not only before the other testimony was all in, but without any proof of such relations at about the time of the alleged crime. This was done, it is true, on the promise that the relations should be shown to have been continued-. This however was not shown, and the subsequent testimony allowed to come in on this subject not only had no tendency to prove it, but rather the reverse. All the legitimate evidence concerning respondent’s domestic relations indicated entire harmony between husband and wife. The court refused to strike out this improper testimony, and laid stress upon it to some degree in the charge.
Such testimony, if received, has a manifest tendency, as it must have been designed, to produce a disposition in the jury to lean against the respondent, and to put an unfavorable construction upon his acts. As suggested in People v. Hall, there is no possible reason for allowing such testimony to be put in out of its order. The prosecution, under our system of criminal practice, is bound to proceed against no one without having in advance the testimony on which a conviction is to be sought; and while in a civil case it may be sometimes allowable to receive testimony on a pledge that it will be made admissible by future evidence, it never should be done, even there, if it is likely to be seriously prejudicial. A jury cannot readily dismiss from the mind, so that it will leave no trace, testimony that blackens character or impugns motives. In a criminal case the prosecution should be allowed no such latitude. The mischief is effected when the testimony comes in, and gives color to all the subsequent views of the jury, so that they look suspiciously upon all that is said or done by the respondent which is open to any consideration of motive.
It was, we think, improper to exclude evidence of the transactions in the house between the death and burial. They were important in the inquiry concerning the use of antiseptics, which was then known to be material. A similar principle applies to the' dealings and transactions concerning the employment and understanding as to Drs. Nay and Epply. It was error to exclude the evidence as to the contents of the page of the book shown by Mrs. Wortman to respondent. It was the same as if she had read or spoken the same words. It was also error to shut out the impeaching evidence concerning Mrs. Wortman’s attempt and failure-to get employed in respondent’s house after the death of his wife. It bore on her motives, and to some extent was contradictory of her testimony as believing in his guilt. Geary v. People 22 Mich. 220; Hamilton v. People 29 Mich. 173.
But the more important questions, inasmuch as they are inseparable from the main issues in the case, arise upon the course of testimony depending on the opinions of scientific-witnesses,- and upon the burden of proof, on which we think there was fatal erroz\ Several of the difficulties presented on the record must have arisen from a failure to appreciate-the decision in the case of People v. Hall, and other cases involving similar inquiries. These matters can be more satisfactorily dealt with together, so far as they resemble each other in principle. To explain them it will be necessary to recall the precise character of the controversy.
The analysis having revealed the presence of arsenic in such quantities that if administered during life it would have been sufficient to produce death, and the fact that it was so found not being of itself indicative of when or how it was introduced into the substances delivered to Dr. Prescott to be analyzed, there were two lines of inquiry connected with this particular question. One was whether the position and proportions of the arsenic found, indicated satisfactorily absorption during life through the organs which would serve as vehicles for that purpose; and the other, whether it could have been introduced into the body after death, and reached the various organs where it Avas found, by any means that Avonld be practicable under the circumstances. In this connection we may remark that the undertaker, who was alloAved to give an opinion on a physiological question connected with this subject, presented no claims entitling him to give an opinion as a scientific expert, and his testimony was improper so far as it related to anything but specific facts. A third possibility was not argued, and it is not suggested that the facts call for its application; that is, the careless or intentional introduction of poison into the material for analysis. "While the testimony does not indicate the utmost care in the removal and packing of the contents of the jars at the time when the body was exhumed, the record gives no reason for supposing that there was any lack of precaution that involved danger of improper intermeddling. The controversy, therefore, included only the other íavo inquiries.
But beyond this there was a medical question upon which the case very largely depended, and that was whether the symptoms of the fatal sickness Avere certain indications of poisoning and its effects on the system of the deceased. If such was beyond doubt the character of the symptoms, the ambiguity of the other post mortem appearances and discoveries would be greatly lessened or removed. If the S}’mp- toms were ambiguous, or if they belonged to some disease or malady, they might raise such probabilities as to negative guilt, or such reasonable doubts as would make it improper to convict.
Upon this last question of the character of symptoms, an important class of assignments of error is presented, which substantially relate to the burden of proof. While properly laying down in various places the general doctrine requiring the jury to convict only where they had no reasonable doubt, the effect, nevertheless, of several rulings was to indicate— intentionally or unintentionally — that testimony introduced by the defendants upon this particular class of appearances and their meaning, was in the nature of an affirmative defense, and that the People were not bound to exhaust their proof so as to negative all results but poison. This led to the allowance of more or less testimony as rebutting-, which respondent claimed belonged to the principal case, and to the natural inference (and comparing the charge and refusals to charge with some other rulings on testimony, to the necessary inference) that the defense had the burden of proof to meet the presumptions supposed to be raised by the prosecution.
This idea is not correct. In every criminal case the burden is throughout upon the prosecution. Whatever course the defense deem it prudent to take in order to explain suspicious facts or remove doubts, yet it is incumbent on the prosecution to show under all circumstances, as a part of their own case, unless admitted or shown by the defense, that there is no innocent theory possible which will, without violation of reason, accord with the facts. And in a case of alleged poisoning, where the symptoms and appearances during the last illness become controlling facts in determining whether the death was from poison or from disease, the charge is not made out unless the prosecution negative everything but poison as the cause of death. And this they can only do by showing affirmatively that the combined symptoms, and the absolutely certain facts with which they are associated, are inconsistent with any other disease or ailment- It has been generally regarded as unsafe to convict on symptoms alone, from the danger of confounding the appearances of disease and poison. But it is little if any less dangerous to allow the presence of poison in a dead body, where there is no certainty whether it got there before or after death, to be given a presumptively guilty significance by symptoms which are themselves open to an innocent meaning. We doubt very much whether the learned judge who tried the case intended to hold differently, but we think the record indicates that such was the effect of his rulings.
The remaining questions of much importance arise out of the scientific testimony, and the facts and theories to which it was applied. To understand the bearing of this branch of the controversy, it becomes necessary to notice the principal features of the scientific discussion. The differences were radical on some important issues, and arose in part, beyond question, from the absence of some means of judgment which it was desirable and in some respects necessary to furnish in order to reach a safe conclusion, and in part from inferences of witnesses from facts not within the hypothetical statements.
The symptoms which were claimed as . indicating poison were shown to be marked and definite as early as between the 18th and the 25th of April, and to have continued day after day until the 9th of May, during which day the death occurred in the afternoon. The respondent is claimed by the prosecution to have administered or caused to be administered daily, and several times a day, as early as April 25, and thereafter, doses which it is insisted were poisonous, in amounts, which if they were arsenic in any considerable proportion, were each large enough, according to the medical testimony of how much will kill, to be a fatal dose. The amount found in the organs examined was larger than the testimony of some, if not of all, of the experts shows is absorbed during life in most cases of arsenical poisoning hitherto known and retained in the various organs, and according to some of the testimony more than it is understood could possibly be so absorbed and retained. The time within which doses large enough to be fatal will kill is shown by much of the testimony to be much shorter than some of the facts in this case would indicate to have elapsed, if this was a case of poisoning. The expert testimony is equally positive, on the part of some of the strictly scientific witnesses, against the possibility of harmonizing the discoveries and appearances with slow or chronic poisoning, or with any poisoning.
In regard to the meaning of the symptoms themselves, if the witnesses all understood the same interrogatories alike, there was a great difference of opinion. It is claimed by the defense that much of this conflict and difficulty is due to the course of examination on the trial, and upon this they are probably right. There was, at any rate, a departure from the rules heretofore laid down, both in the questions allowed to be put and in the method of answering permitted. And thisvdiffieulty was increased by permitting inquiry where the foundation for correct inquiry was lacking.
It appeared from the testimony that, during the illness of deceased, besides the temporary visit of one physician, she was attended by two other physicians, who seem to have differed somewhat as to the precise measure of their responsibility, but who had the means of knowing her symptoms and the course of the disorder, and who at no time took any stops to deal with it as involving poison. Upon the trial it was intimated that one or both had suspicions that their treatment was counteracted, and that if so, it was by arsenic. Neither of them took any measures to verify the suspicion, if entertained, or to give antidotes. No one, either before or after death, is shown to have examined the vomit or other discharges, or to have taken any other measures of caution or detection. After the death, one of them, when suspicion had arisen among others, discouraged having a post mortem examination as unnecessary, and neither took measures to procure one. It is clear that such measures as would naturally have been suggested to a physician by a suspicion of the kind referred to, would have settled the nature of the disorder beyond doubt. The duty of a physician to save life, and the duty of a citizen to prevent and expose crime, are so mani fest that we are bound to suppose the suspicion was not entertained definitely, or that the symptoms could mot have appeared plainly indicative of poison at the time. At any rate the lack of securing the obvioús means of detection is due to witnesses who on the trial testified as experts upon some points which were very material, when their conduct during the sickness betrayed no suspicion.
The same difficulty as to various indications to be sought on a post mortem inquiry arose in making that inquiry. It was then known that respondent did not dispute the probability that poison would be found, but referred it to the fact that poisonous embalming or preserving fluid had been injected through two channels into the body. The importance of then examining the various organs and parts of the body to look and see whether such appearances existed as would have been produced by the disease which it had been assumed was the cause of death, was obvious to any mind. These symptoms began before any charge is made that poison was given, and so early as to raise serious questions whether, if caused by poison, death could have been so long delayed. But no thorough search seems to have been made, and attention was chiefly, although not entirely, given to those parts which it was deemed important to analyze for poison. And although the brain was afterwards analyzed, it does not appear to havebeen carefully inspected for other purposes. No examination was made of the lungs to ascertain whether arsenic had become deposited there, as upon one theory of the experts was possible, if not probable; and other parts, concerning the significance of which there was no difference of opinion, were passed over slightly. And in separating the organs for examination by the chemist they were so assorted as to render it. absolutely impossible, as the analyst testified, to tell how much arsenic was in either, or whether all discovered in the mixture of two parts might not have been in either alone.
This absolutely destroyed the value of' the analysis for the purpose of indicating by itself whether or no the poison was introduced and absorbed in life. The testimony indicates that arsenic deposited in the various organs, when taken dur ing life, is not, when found after death, found in similar quantities or proportions in all, and that the proportionate character of the deposits is a very important factor in scientific conclusions. Some of the significant organs were left out entirely from any analysis, and the others so confounded that no safe inference could be drawn from them. And this defect rendered more or less of the testimony to rest on such pure guess-work as to render it improper for drawing some conclusions that were allowed to be drawn, and left as the only fact ascertained, which was important at all, the fact that a certain quantity of arsenic was found, which, so far as chemical science could detect, as the chemist testified, might have been put in the body either before or after death, and had, therefore, no legal significance, standing alone. But, as indicating a quantity which, according to a considerable part of the scientific testimony, was in excess of what had ever been found in certain of the organs in cases of death from poison, and as further indicating, from the same testimony, the improbability that any guilty poisoning could have dated back so far as charged, it bore very strongly under those proofs against the theory that the symptoms which continued so long alike were poison symptoms.
We are obliged, therefore, to see that the case actually depended almost entirely, if not absolutely, upon the conclusive character of the symptoms; and as the only proof that respondent committed any wrong was based on the inference that he substituted poison for other medicine, without any direct proof on that subject, the experts become the witnesses on whose testimony the whole case rests. Any error in allowing expert opinions was therefore a fatal error.
Of this testimony there were two branches, namely, the chemical and the medical. An expert in one of these is not necessarily an expert in the other. In the present case the four principal experts appeared in both capacities. The line does not seem to have been drawn as closely as it should have been in examining the experts generally.
Objection was made to several questions as asking opinions on defective or improper assumptions. As this same sub jeet was discussed in People v. Hall to some extent, it is not necessary to dwell upon it at large. It is sufficient to say that in some questions assumptions of fact were made, supported by no evidence ; the actual administration of poison was assumed, when it was only deducible by inference; symptoms were detailed without any order of time, or any such connection of antecedent and subsequent occurrences as could give them any significance which would be definite; and no such certainty was called for as would enable the jury to know on what basis of actual evidence on the facts shown by the witnesses who were not experts, the experts themselves were testifying. It also appeared on several occasions that the experts had assumed facts not submitted to them for their opinion, but culled by themselves from what they had heard during the trial, and with which they had no right to meddle for themselves.
It is hardly necessary to say that such testimony is not competent. Another source of error quite as mischievous, and which the court evidently desired to prevent, but did not always do so, was the introduction of what is no more than hearsay evidence, in the shape of references to writers and books in such a way as to invoke their authority. As we have had occasion on more than one record to explain heretofore, expert evidence is only admissible on the theory that the jury cannot be supposed to comprehend the significance of facts shown by other testimony which needs scientific or peculiar explanation by those who do comprehend it. But this does not permit hearsay testimony of the written or spoken opinions of other persons, whom the jury have no means of examining as to their learning, their honesty, or their sources of special knowlege. Every medical and scientific writer bases much of his conclusions upon what he believes to be true in the reported facts and opinions of other men of science. Those facts may be correctly stated, or they may be assumed on small or no foundation. Those opinions may be taken carelessly at second hand, or they may have been thoroughly weighed before adoption. No one can tell whether a medical book or opinion is reliable or not, until lie has applied himself with some fitting preparation to its study and criticism. The book may be good in part and bad in part, and neither court nor jury can presumptively ascertain its quality.
No one has any title to respect as an expert, or has any right to give an opinion upon the stand, unless as his own opinion; and if he has not given the subject involved such careful and discriminating study as has resulted in the formation of a definite opinion, he has no business to give it. Such an opinion can only be safely formed or expressed by persons who have made the scientific questions involved matters of definite and intelligent study, and who have by such application made up their own minds. In doing so, it is their business to resort to such aids of reading and study as they have reason to believe contain the information they need. This will naturally include the literature of the subject. But if they have only taken trouble enough to find or suppose they find that certain authors say certain things, without further satisfying themselves how reliable such statements are, their own opinions must be of very moderate value, and whether correct or incorrect, cannot be fortified before a jury by statements of what those authors hold on the subject. The jury are only concerned to know what the witness thinks, and what capacity and judgment he shows to make his opinion worthy of respect. If the opinion of an author could be received at all, it should be from his own words — not in single passages, but in combination; and this, as has been heretofore held, cannot be done. It is excluded chiefly as both unknown as to value and as hearsay, and an attempt to swear to his doctrine orally would be hearsay still further removed, besides involving the other difficulty of needing interpretation and responsibility.
A large part of this scientific evidence consists of repeated references for support and confirmation to the statements of authors, and as might be expected, the different witnesses have not always read through the same glasses. To settle their differences the only resort must have been to the very books which no one claims were admissible. These refer enees were not merely made on cross-examination to test the knowledge and veracity of the witnesses, but came in as frequently on direct examination. In Pinney v. Cahill 48 Mich. 584, a witness who had asserted that a certain book laid down a certain proposition was allowed to be contradicted by showing it did not. But it is questionable whether the original assertion was properly drawn out, although when made it was proper to let it be contradicted. It was distinctly held in Marshall v. Brown 50 Mich. 148, that attempts to evade the excluding rule by examining or cross-examining in such a way as to get an opportunity to get books before the jury could not be permitted.
Upon medical questions, while persons may testify whose knowledge is chiefly theoretical, there can be no question of the superior value of practical knowledge, combined with theoretical, especially on such matters as involve the interpretation of symptoms and actions of the sick. It is also a rale which has been laid down as one of law, that no amount of theory can overcome facts established by credible testimony, and that juries have no right to form their own opinions upon matters not proven or laid before them, in disregard of the testimony. Treat v. Bates 27 Mich. 390; Wood v. Barker 49 Mich. 295.
We have thus indicated our views upon the matters which, upon the argument, we deemed most important. There are other matters which are not so important, upon which we do not deem it necessary to pass. We cannot however fail to notice that, in addition to many grossly leading questions, in the excitement of the trial things were said before the jury and to witnesses which were not proper, and which it was not good practice to tolerate. The record also contains a great deal of prolixity and irrelevancy which is productive of expense, wrong and oppression to parties compelled to defend themselves against criminal accusations and to remove judgments for review. Where all witnesses are known, and most are expected to have been sworn on the examination, there can be no occasion for prolixity in examining them on the trial.
.The judgment must be reversed, and the prisoner remanded to Ionia county for such further action as the authorities desire to take in the premises.
The other Justices concurred.
Upon a second trial in December 1884, the respondent was acquitted. | [
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Sherwood, J.
The respondent was convicted in the Recorder’s Court in the city of Detroit, of the crime of robbery, on the twenty-second day of October, 1881. Motion was afterwards made by respondent for a new trial, and he was admitted to bail upon his own recognizance in the sum of $500, and sentence was indefinitely suspended by the court. The motion for new trial was denied. About seven months after he was admitted to bail he was arrested on another charge, but was not tried, and about a month thereafter he was brought before the Kecorder and sentenced to imprisonment for five years.
After the jury had been called and before they were sworn, respondent’s counsel challenged the array upon the ground that they were selected by persons appointed by the Governor of the State, and not by persons chosen by the vote of the people of the city of Detroit or the county of Wayne, and that the act of the Legislature under which the Governor appointed said persons to act as jury commissioners is unconstitutional and void. The challenge was overruled by the court, and counsel excepted.
The constitutional provision referred to in defendant’s objection is as follows: “ Judicial officers of cities and villages shall be elected, and all other officers shall be elected or appointed, at such time and in such manner as the legislature may direct.” Const, art. xv, § 14. It is claimed that by the appointment of these commissioners to make return of jurors the Constitution has been infringed. We have examined the record and briefs in this case carefully, and are unable to see in what manner the constitutional rights of the respondent have been violated. The commissioners appointed by the Governor are not judicial officers in the sense in which those words are used in this section, and if they were they áre not city or village officers, but county appointees, and are, therefore, not within the provisions of the section referred to. The defendant, under the operation of the law, is in no way deprived of his common-law jury, nor of any of its essential incidents. The mode and manner of selecting the jury has always been a subject of statutory regulation; and so long as the mode adopted requires good and lawful men of the vicinage of defendant, to be taken from the body of the county, the respondent has no cause for complaint on constitutional grounds; and this is secured by the statute complained of. The challenge was properly overruled.
The second assignment of error is that the court refused to let the defendant make an unsworn statement to the jury. This action of the court was objectionable, and subject to the exception taken; but the error was waived when afterward the defendant was sworn and examined on his own behalf, and cross-examined by counsel for the People.
Under the third assignment of error the respondent’s counsel claim that the suspension of sentence was so long that the court lost jurisdiction to make the sentence he did. Under our practice courts may, for good cause, suspend sentence a reasonable length of time after trial and conviction. Weaver v. People 33 Mich. 297. We find nothing in the record showing an abuse of the discretion vested in the judge.
The conviction must be affirmed.
Champlin, J.
I cannot wholly agree with the views expressed, by my brother Sherwood in this case. I do not think it is competent for a circuit judge or other judicial officer to suspend indefinitely the sentence which the law makes it his duty to impose upon a person duly convicted, or who may plead guilty in his court. The effect of suspending sentence operates as a quasi pardon. It relieves the offender for the time being ff om the punishment which the law has prescribed shall be inflicted. The pardoning power under our Constitution is reposed in the Governor, and not in the judges. It is for the Governor to say whether the criminal shall be relieved from the infliction of the penalty due to his crime. The Constitution having vested this power in the Governor, it cannot be exercised by the circuit judges indirectly by letting the prisoner to bail on recognizance to appear when required to receive sentence., A stay of sentence may be granted where a certiorari is sued out, or where a writ of error is obtained for the purpose of review by the higher courts. Temporary stay may also be granted where steps are taken for a new trial; but all these are steps in the progress of the case, taken for the purpose of bringing about a change in the result.
In this case, Eeilly was convicted October 22, 1881. He moved for a new trial, which was denied February 14, 1882. He took no steps to obtain a review by the Supreme Court,; but on February 10, 1882, he gave his personal recognizance in the penal sum of $500 to appear in court on the llth day of February, 1882, and from day to day, and from team to term, then and there to receive the sentence of the court. On October 30, 1882, the prosecuting attorney moved for judgment, and the court continued the same for consideration until the next term, and on November 28, 1882, sentenced Reilly to be imprisoned at Jackson at hard labor for four years. It thus appears that over a year elapsed after Reilly was convicted of the crime of larceny from the person, before he was sentenced. During a large portion of the time he had been suffered to go at large upon his own recognizance.. If the judge entertained serious doubts of his guilt, he should have recommended the Governor to pardon the respondent; and if he entertained no serious doubts of his guilt, he should have pronounced judgment instead of setting the criminal at large upon his own recognizance. If such power can be exercised by a judge, it incorporates into our administration of the criminal law the “ ticket-of-leave ” system of the English judicature without its surveillance and checks, and places the criminal at the caprice of the judge, subject to be called up for sentence at any time. If the judge can delay the sentence one year, I do not see why he may not fifteen years. An exercise of such power in this age would be no less revolting to our sense of justice than was the exercise of such power in the reign of Jatnes I., when he sent Sir "Walter Raleigh to the block fifteen years after his conviction.
I agree with my brother Sherwood that there are no errors which call for a reversal of the judgment, and therefore concur in the conclusion reached by him.
Cooley, C. J. concurred in the result.
Campbell, J.
I think the court lost all power to sentence the respondent by the discharge on his own recognizance for so long a period, and that the sentence cannot be sustained without practically overruling our previous holdings.. | [
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Sherwood, J.
The plaintiffs brought suit against defendant in assumpsit on all the common counts, laying their damages at one thousand dollars, and filed a bill of particulars. Defendant pleaded the general issue, with notice of set-off, .and of settlement in full. The case was at issue June 18, 1883. On the 6th of September, 1883, a stipulation was ■made by the attorney for the defendant and the plaintiffs as follows: “We hereby consent that the above-entitled cause ■may be discontinued, each party paying their own costs.” On the 14th day of October following, order was entered in the common rule book, by the defendant’s attorney: “ On filing the stipulation of the parties in this cause, it is ordered that this cause be and the same is hereby discontinued.”
The plaintiff, on the 16th day of October, 1883, made a motion to strike from the files in the case the stipulation to discontinue the suit, which was denied by the court, and on the same day, under the rulings of the circuit judge, and against the objection of the defendants, counsel for the plaintiff was permitted to proceed to the trial of the cause before a jury. Counsel for defendant objected to proceeding to the trial, on the ground that the suit had been discontinued, and after making proper proofs of the stipulation, submitted the same to the court in support of his objection. The circuit judge overruled the objection, allowed the cause to proceed before the jury, and under his charge a verdict was rendered against the defendant. This ruling' was erroneous.
The stipulation of the parties which placed the cause out of court, and which on decision of the motion had been held proper to remain upon the files in the case, was entitled to be regarded as valid by the court until in some manner impeached, and nothing of the kind was attempted, neither had the interests of the attorneys or any third parties intervened, so far as is disclosed by the record. Under the facts shown, the plaintiffs, or either of them, had the right to make the stipulation, and when acted upon by either of the parties the cause was out of court.
The judgment must be reversed with costs.
The other Justices concurred. | [
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Campbell, J.
Simons sued Monis as endorser of a note made by a firm named Townsend & Colony, October 19, 1876, to order of Morris, and endorsed in blank. The note was transferred to plaintiff in 1883, about five years after it became due, by L. A. Waldron, who had held it fromrthe date of the note.
The defense relied on was that defendant was an accommodation endorser, signing at Waldron’s request, and that Waldron had so dealt with one of the makers, Colony, as to discharge defendant. It was also claimed that there had been an offer to pay, which Waldron refused on the ground that he did not look to defendant, and had obtained satisfaction from Colony. The jury found for defendant, and no error is alleged on the charge. The only errors assigned are concerning the admission of testimony.
The three errors first assigned relate to the allowance of certain questions, as to what occurred previous to and in connection with the endorsement, between Waldron and defendant.
As plaintiff took the paper when long past due, he is bound by any equities which bound Waldron. There can be no question whatever that as between Waldron and defendant, the latter was entitled to show fully the consideration and circumstances of the endorsement, and this is all that these questions brought out. How far such circumstances would operate on the defense was another question, which could only be raised upon some ruling. The effect of the testimony was to show a condition of things which would create a known relation of mere suretyship, and which would therefore entitle defendant to be dealt with on that footing. The court did not charge and was not asked to charge, that the obligation of endorsement could be altered by parol evidence, and the defense rested entirely, under the charge, -upon dealings between Waldron and one of the makers of the note, whereby it was claimed to have been satisfied, and upon assurances to defendant that it was satisfied. No objection was made to these charges. The questions themselves were entirely unobjectionable, and no error is alleged upon the retention of the answers.
The only other assignment of error relates to the reception of a deposition taken in New York, under the statute. The only objections to this which seem to be supported by the record, are that it was certified by a deputy instead of by the clerk of the court, and that it was opened by the clerk of the circuit court for the county of Muskegon without leave of the court. The other objections are not sustained by the documents.
It is enough to say that our statute only requires the “ official seal ” of the clerk to be affixed, and says nothing about his signature. Comp. L. § 5906; Act 210 of 1879 [How. Stat. § 7475]. The seal affixed by the deputy is a compliance with this statute. Section 5900, as amended in 1881 (Act 37 of 1881), provides that the deposition may be opened by the clerk or by a judge of the court in which it is to be used. [How. Stat. § 7469]. The act of either is sufficient, and no leave is required.
There is no error in the record, and the judgment must be affirmed. ■
The other Justices concurred. | [
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Sharpe, J.
This is an action to establish an equitable lien upon a parcel of real estate in the city of Detroit, Michigan. The facts necessary to decision are as follows: Plaintiff, Annabelle P. Moore and defendant, Pauline Y. Moncus, are sisters. Defendant, Lamar Moncus, is the husband of Pauline Y. Moncus. Plaintiff, recently widowed and not desiring to live alone in the home she and her late husband occupied, proposed that she and defendants live together. At this time plaintiff offered to make the down payment on a house in the amount of approximately $3,500, in return for which she was to receive her board and room. Up to this time defendants did not own a home and were renting a house at a rental of $50 per month. The parties looked at several houses and finally selected a house on Houston avenue, Detroit, Michigan, the purchase price of which was $12,500. Prepaid taxes, costs, and insurance brought the purchase price to $12,-688.98. In order to complete the purchase plaintiff advanced the sum of $5,586.41, which paid the equity of the owners down to the existing mortgage. This down payment was approximately $2,000 more than plaintiff originally expected to pay. Title to the premises was taken in the name of defendants. The parties moved into the home on or about March 1, 1953. It was also a part of the preliminary agreement that a written agreement would be executed, but this was never accomplished. It also appears that during the preliminary stage of the agreement plaintiff insisted that Mrs. Moncus was to keep the house clean, which Mrs. Moncus agreed to do.
On or about August 12, 1953, friction developed between the parties because plaintiff felt that defendants were not living up to a promise to keep the house in a good, livable condition, and because at times Mr. Moncus would not speak to plaintiff. Soon after the above date plaintiff moved out of the house. About September 23, 1953, plaintiff received a cheek for $40 from defendant Pauline Moncus with a statement on it, “1st payment on loan.”
It also appears that plaintiff was employed on the' night shift in a factory; that Mrs. Moncus was employed during the day at a hospital; that Mr. Moncus sometimes worked part day and part night, and that defendants’ daughter, who was living in the home, was also employed.
When the cause came on for trial, plaintiff testified:
“Q. What was the condition of the home that required you to take care of it?
“A. Well, there were dishes in the sink when I would come home from work at night, and in the morning when I would get up; shoes under the table in the kitchen, and sometimes they were on it; there was dust everywhere, and dirt. In the bathroom there were clothes hanging in there. Mrs. Moncusdid not take care of these things, pick them up. I spoke to her constantly about taking care of it. She said: ‘You have all day before you go to work to do things, and I am tired when I come home at night/ I said, ‘What is the difference; we both work the same. I have to work after I leave here.’ As the result of my request she would do something once in a while to take care of these things. * * #
“A. I said to Mrs. Stoll, — that is my cousin: ‘If something were to happen to Mrs. Moncus I wouldn’t have anything. I would be out.’ She said: ‘Well, we-will draw up something.’ Mr. and Mrs. Moncus agreed to it, both of them, that something would be drawn up, whereas if something would happen toiler, that I would have something to show that I had put that money on the house.”
Defendant, Pauline V. Moncus, testifying in her own behalf, stated:
“Q. Is it a fact that a cousin of yours was to draw papers after you moved in?
“A. Yes.
“Q. Was there any discussion between you as to-what would happen if you and Mr. Moncus were to die?
“A. Tes. When Mrs. Stoll came to talk to Mrs. Moore about her will that subject was brought up; and Mrs. Stoll was requested to draw up some papers. whereby Mrs. Moore would have an interest in the house; so that if anything ever happened to her, or to Mr. Moncus and I, it could not be taken away from her, her interest; so that she would have an interest in the house. Mrs. Stoll did not get around to it; and some time around the middle of August, after Mrs. Moore first asked us to move, I called Mrs. Stoll' and told her just to drop the matter.”
The trial court, after hearing the above and other testimony, entered a decree in favor of plaintiff, and in an opinion stated:
“It was' obvious from the testimony that the plaintiff’s claim, with no better basis than shown, would not be grounds for relief in an ordinary case. However, the personal element in this case is so important that the court deems it necessary to send the parties on their separate ways with an equitable distribution of the assets involved. The court does not feel that it is right or proper to force these people to live together, even though their differences are more personal than legal in nature.”
Defendants appeal and urge that plaintiff failed to establish a ease for equitable rescission, and that a court of equity is powerless to make a new contract for the parties.
Plaintiff urges that the parties did not make a legal and binding contract, and assuming such á contract was made, a court of equity was justified in rescinding the same and making an equitable settlement between the parties.
In Swart v. Western Union Telegraph Co., 142 Mich 21, plaintiffs brought an action at law to recover rent. The facts are as follows: Plaintiffs were the proprietors of a hotel. They entered into verbal negotiations for a lease to the defendant for room in the hotel for a telegraph office. Plaintiffs offered to lease space for 5 years at an annual rental of $1,800 and $40 per month for franking privileges. Defendant’s agent telegraphed the New York office of defendant for confirmation. The offer was approved and defendant took possession March 1, 1901, and occupied the room until July 31,1901. It was agreed that a written lease should be executed. Each party prepared a lease, but neither lease was signed. The disagreement between the parties arose over the extent of the franking privileges and the hours during which the office should be kept open. We there said (P 23) :
“No claim is made by plaintiffs that any written lease was executed. They claim that there was a parol lease for 5 years, void under the statute of frauds, but valid for a year, and seek to recover for 7 months’ rent. The court held that no verbal lease had been agreed upon, and that, therefore, the defendant was a tenant at sufferance or at will, and that, the rent being payable monthly, plaintiffs were entitled to 1 month’s rent, and judgment was entered for that amount. The plaintiffs have appealed.
“It is clear that the verbal negotiations did not embody all the terms of the proposed lease, nor was it contemplated that they should. In the cases upon which plaintiffs’ counsel rely there was no doubt that a parol lease had been agreed upon. The jury and the court were able to definitely establish their terms. See Huntington v. Parkhurst, 87 Mich 38 (24 Am St Rep 146). It was not enough to constitute a lease that the term rent and time of pajment were agreed upon, if the other provisions were contemplated upon which they had not agreed. The court, therefore, correctly held that the minds of the parties had never met, and that there was no parol lease by whicli their rights could be determined. The tenancy was one at will, terminable upon a month’s notice. Huyser v. Chase, 13 Mich 98; McIntosh v. Hodges. 110 Mich 319; Barrett v. Cox, 112 Mich 220.”
In our opinion the principle involved in the above case is similar to the issue involved in the case at bar. In the instant case there was no written agreement, nor were all the items of the proposed agreement agreed upon. It was clearly contemplated by all parties that a later agreement would be executed that would fully finalize the area of the agreement. We conclude that the minds of the parties had never met upon all the terms of the proposed agreement and that the verbal agreement was not sufficient to determine the rights and duties of the parties.
The decree of the trial court is affirmed, with costs to plaintiff.
Dethmers, C. J., and Smith, Reid, Boyles, Kelly, Carr, and Black, JJ., concurred. | [
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Carr, C. J.
For several years past plaintiff has been engaged in the sale and distribution of liquefied petroleum gas. Said gas is furnished by it under written contracts with its customers, most of whom are home owners, and is used for heating, cooking, refrigeration, and perhaps other purposes. In connection with its operations plaintiff uses storage tanks, cylinders and so-called “handling systems,” which systems are installed for the use of purchasers of the gas.
Claiming that the use of the equipment referred to rendered plaintiff liable to assessments under the use tax act, the defendant imposed such tax in the sum of $2,494.42, together with interest, for the period from November 24, 1947, to and including December 21, 1951. Plaintiff thereupon appealed to the State board of tax appeals which upheld the assessment as made by defendant. The amount of the tax was paid under protest and plaintiff brought action in the court of claims for recovery thereof. Judgment having been rendered against it, it has appealed to this Court.
On the hearing before the State board of tax appeals, and also before the trial court, the principal facts were stipulated. Plaintiff obtained its liquefied propane gas from a refinery, delivery being made in railroad tank cars. Sufficient pressure was maintained to prevent the liquid from vaporizing. Its boiling point is said to be 44°F. Plaintiff transferred it from the tank cars to 18,000-gallon storage tanks which it maintained for that purpose. It was then pumped in a liquefied state into steel cylinders designed to hold either 20 pounds or 100 pounds of the liquid. The containers were adapted specifically to maintain the necessary pressure.
Pursuant to its contract with each consumer, plaintiff installed cylinder containers of the liquefied gas, usually 2 in number, ■ with certain regulating and control equipment attached to inlet lines within the dwelling or other structure, on the premises of each consumer. Such equipment was not affixed in a manner, that resulted in its becoming a part of the realty, and under the contract it remained plaintiff’s property. A combination regulator and safety device was attached to the top of the cylinder, enclosed by a metal protective coyer. Following the installation, plaintiff’s representative released a so-called “throw over” valve. This resulted- in a reduction in pressure and the consequent vaporization of a portion of the liquid. The gas thus vaporized was ready for the use of the consumer. Pursuant to the contract each cylinder, when emptied, was replaced by plaintiff.
Appellant claims that the storage tanks, steel cylinders, regulators, valves, fittings and incidental equipment were used by it in “industrial processing,” and that such use was not subject to the tax -imposed under the statute cited. Section 4 of the act (CL 1948, § 205.94 [Stat Ann 1947 Cum Supp § 7.555 (4)]) grants exemptions as to certain classes of property. Reliance is placed on subdivision (g) thereof, which exempts:
“Property sold to a buyer for consumption or use in industrial processing or agricultural producing.”
The question at issue is whether the property above mentioned was used, during the period for which the tax was assessed, in industrial processing of the liquefied propane gas sold and distributed by plaintiff. The use of such equipment obviously did not result in any change in the character of the product handled by plaintiff. The storage tanks and cylinder containers were designed to maintain the propane gas in a liquefied condition while in plaintiff’s possession and until sale and delivery to its customers. The so-called “handling systems” installed in the homes of customers were used to regulate the pressure to the end that vaporization might take place as a natural process, thus making the product available for heating, cooking and other purposes. It should be noted in this connection that the cylinders and other equipment placed in the home of the consumer remained the property of the plaintiff, being loaned or leased to the customer, who, it appears, gave some form of security for its proper maintenance and return on demand.
Appellant relies on the decision of this Court in Michigan Allied Dairy Ass’n v. State Board of Tax Administration, 302 Mich 643, in which it was held that treating raw milk in such manner as to destroy bacteria therein, thereby protecting it against contamination and rendering it marketable, constituted industrial processing, and that the use of cans and bottles in the course of the operation was not subject to the tax imposed by the statute. The Court found that the taxpayer was entitled to the exemption under the provisions of section 4(g), above quoted in part. The opinion in the case pointed out that milk is not marketable until properly protected against contamination and deterioration for the protection of the consumer. The decision of the supreme court of Arizona in Moore v. Farmers Mutual Manufacturing & Ginning Co., 51 Ariz 378, 382 (77 P2d 209), was cited with approval. The court there referred to the definition of the term “process” given in Webster’s New International Dictionary as follows :
“to subject (especially raw material) to a process of manufacturing, development, preparation for the market, et cetera; to convert into marketable form, as livestock by slaughtering, grain by milling, cotton by spinning, milk by pasteurizing, fruits and vegetables by sorting and repacking.”
It was further stated with reference to such definition that:
“It will be seen that the essential portion of the definition is to ‘prepare raw material * * * for the market.’ ”
Tested by the definition approved in the Michigan Allied Dairy Ass’n Case, supra, the conclusion fol lows that the methods used hy plaintiff to regulate the pressure of liquid propane gas did not constitute industrial processing. Its primary purpose was not to render it marketable, but to subject it to such conditions as to pressure and temperature as would maintain it in liquid form prior to the time of use.
In Kress v. Department of Revenue, 322 Mich 590, the question at issue was whether certain water softeners, owned by plaintiff Kress and rented to patrons for installation and use in their homes or business places, were used in industrial processing. Such patrons included some industrial users although the greater number were householders. With reference to the softeners placed in residences, it was held that the softening of the water did not constitute industrial processing within the meaning of the statute, inasmuch as the operation was not conducted in order to condition the water for a later sale. The holding in the case was summarized as follows:
“As used in the use tax act, the term ‘industrial processing’ is not intended to apply to processing so as to exempt property used in processing from tax, where there is no subsequent sale (PA 1937, No 94, § 4, subd [g], as amended by PA 1945, No 180).” (Syllabus 3.)
In Suburban Propane Gas Corporation v. Tawes, 205 Md 83 (106 A2d 119), it was held that appliances used by plaintiff for the purpose of reducing the pressure on liquid propane in its containers on consumers’ premises, in order to produce gaseous propane for such consumers, did not constitute manufacturing within the meaning of the statute, and that, in consequence, plaintiff was liable to the use tax specified by the Maryland statute. In reaching such conclusion the court cited, and quoted from, other decisions relating to the subject, and drew an analogy between the result of lowering the pres sure on the liquid propane, thereby enabling it to assume a gaseous form, with the passage of gasoline through the carburetor of a motor vehicle. While the Maryland statute is not identical ■ in phrasing with that of Michigan, we think the line of reasoning followed in reaching the conclusion indicated is significant. It may be noted, also, that the court pointed out the general rule with reference to exemptions from taxation, that is, that statutory provisions providing for such exemptions must be strictly construed in favor of the State.
In Peoples Gas & Electric Co. v. State Tax Commission, 238 Iowa 1369 (28 NW2d 799), the question :at issue was whether the plaintiff was exempt from the payment of the use tax imposed by the Iowa statute on certain equipment used by it in connection with the transmission of electrical energy and with the furnishing of gas to consumers. Exemption was claimed on the ground that the property was used in “processing” within the meaning of the term as used in the exemption clause of the act. Defendant appealed from an adverse decision. It was the claim of the plaintiff that the statutory provision in question should not be construed as an ■exemption but, rather, as indicating that the legislature did not intend a coverage of the property so used. In other words it was asserted that there was a want of coverage rather than an exemption therefrom. It may be noted that a similar argument is ■suggested by counsel in the case at bar. The Iowa •court, considering prior decisions relating to the issue, held against the contention of the plaintiff, •concluding that the legislature intended that the tax •should be imposed generally but that certain exemptions therefrom, as specified in subsequent sections, ■should be granted.
The Iowa decision cited is in accord with the Michigan cases construing the use tax act of this State. With, reference to the operation of plaintiffs5' gas system, it was said, in part (pp 1386, 1387):
“Plaintiffs do not manufacture gas hut own and operate a system of gas mains and pipes through which they distribute natural gas to numerous customers. Plaintiffs purchase this natural gas from a company which operates a pipe line through the territory. At the stations where the gas is delivered to plaintiffs5 main by said pipe line, plaintiffs inject into it an odorant at the rate of about one pound per million cubic feet of gas. Plaintiffs receive the gas at relatively high pressures, which are successively reduced at various points in the transmission and distribution mains and pipes. It is delivered to customers at relatively low pressures. In this respect the method of distribution is similar to that used in electric distribution systems. Likewise, it. is employed because it is the most practical method of distribution.
“Various authorities hold the distribution of gas is not manufacturing. Covington Gaslight Co. v. City of Covington, 84 Ky 94 (8 Ky L Rep 442); Consolidated Gas Co. v. Mayor and City Council of Baltimore, 62 Md 588 (50 Am Rep 237); State, ex rel. Minneapolis Gaslight Co., v. Minnesota Tax Commission, 132 Minn 419 (157 NW 638). Plaintiffs do not contend otherwise. They contend the gas distributing system is directly used in servicing the gas.
“Our conclusion that the poles, wires, transformers, et cetera, do not service the electric energy is-applicable to this contention and results in a holding that the main pipes, valves, regulators, et cetera,, do not service the gas within the meaning of the' processing exception. Hence, such materials and equipment were not exempt.
See, also, Kennedy v. State Board of Assessment & Review, 224 Iowa 405 (276 NW 205); Huron Fish Co. v. Glander, Tax Commr., 146 Ohio St 631 (67 NE 2d 546). In the last ease cited it was held that:
“Under the provisions of sections 5546-1 and 5546-25, General Code [Page, 1945], the retail sale of tangible personal property is exempt from sales and use taxes if such property is used directly in the production of tangible personal property for sale by processing.” (Syllabus 1.)
“ ‘Processing’ is the refining, development, preparation or converting of material (especially that in a raw state) into marketable form.” (Syllabus 2.)
We are in accord with the conclusion reached by the circuit judge who heard this case in the court of claims. The equipment purchased and maintained by plaintiff to enable it to store and market liquefied propane gas, and to regulate the pressure thereof, was not used in industrial processing and, in consequence, plaintiff was not entitled to the exemption set forth in section 4(g) of the statute. The judgment is affirmed, with costs to defendant.
Butzel, Smith, Sharpe, Boyles, Reid, Dethmeks, and Kelly, JJ., concurred.
PA 1937, No 94, as amended (CL 1948 and CLS 1954, § 205.91 et ■seq. {Stat Ann 1950 Rev and 1953 Cum 'Supp § 7.555(1) et seq.]). PA 1955, No 235, amendments to the aet'db' not affect the question at issue in this ease. | [
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Boyles, J.
Plaintiff brought suit in assumpsit against the defendants, filing a declaration on the common counts and adding a count for an account stated. That part of the declaration essential to decision herein reads as follows:
“2. That defendants, on the Í8th day of December, Í952, were indebted to plaintiff in the sum of $29,- 427.10, for money theretofore had and received by defendants for the nse of plaintiff, as shown by the statement of account attached hereto and marked exhibit ‘1.’ * * *
“8. That on December 22, 1952, plaintiff submitted a statement of account to defendants, in the-amount of $29,427.10, and that defendants acknowledged in writing on March 27, 1953, said indebtedness to plaintiff, and that thereupon an' account stated resulted from the dealings had between them.
“9. Tliat thereupon, and in consideration thereof, defendants promised plaintiff payment of the aforesaid money.
“10. That, though often requested by plaintiff so to do, defendants have not paid any of said sums, to-plaintiff’s damage in the sum of $29,427.10. ■
“Wherefore, plaintiff prays judgment in the sum of $29,427.10 together with interest and costs of this, action.”
The statement of account attached to the .declaration, referred to in count 2 as exhibit “1,” showed the number of “toss-board stand assembly units,” contracted for by the defendants, which had been delivered, others completed or in process but not delivered, the material on hand, the money received and balance claimed due, $29,427.10, as follows:
“Units delivered 1,500 at 75^ ....... $ 1,125.00
11,500 at 90fS ____:.. 10,395.00
“Units completed
“On hand 15,469 .................... 13,922.10
“Units in process 8,000, 75% completed 5,600.00 “Material on hand $4,635.00 .......... 4,635.00
Total........................ 35,677.10
“Money received.......:.. $ 4,250.00
“Money due to date....... 31,427.10
“Dec. 22, 1952 ............ 2,000.00
“Balance due .............. $29,427.10”
Issue was joined by the defendants pleading a general denial. Thereupon the plaintiff filed a motion for summary judgment, based on the pleadings and on affidavits filed by the plaintiff stating, in substance, that the plaintiff had entered into a contract to produce and deliver to the defendants 50,000 “toss-board stand assembly units,” had purchased and processed specially-cut material for making the units, had delivered 13,000 units to the defendants, had either completed or partially processed the remaining units, had been paid $6,250, that the defendants had admitted the balance due as claimed by the plaintiff in his declaration as an “account stated,” :$29,427.10. Therefore the plaintiff moved for a summary judgment for that amount.
The defendants opposed the motion, filing affidavits claiming that plaintiff’s motion for a summary judgment did not purport to be on an account stated, that it and the affidavit attached to it contained questions of fact which could be determined only by a trial of the issues, stating circumstances showing that the plaintiff had agreed to withhold further deliveries of units until further orders, alleging in detail facts tending to show that the plaintiff had not complied with the alleged contract in several particulars in the manufacture of the “units,” and claim that the defendants had already paid plaintiff more than the amount owed him.
The court granted plaintiff’s motion and entered .a summary judgment of $29,457.10 plus $1,185.23 interest, and costs, for the plaintiff, from which the defendants appeal.
In granting a summary judgment the court, in a .lengthy opinion, analyzed and discussed the facts alleged by the parties in their several affidavits, and referred to copies of letters (which apparently were not received as exhibits) possibly having some bearing on the claims of the parties.
Defendants urge for reversal that the “pleadings and affidavits did not establish an account stated,” and, further, that the record shows questions of fact which bar a summary judgment.
Plaintiff’s claim of an “account stated” is based on a statement made in a letter sent to plaintiff by the defendants before this suit was started, in which it was stated by defendants:
“We hereby acknowledge our indebtedness to you and request your consideration for the time being.”
Conceding, arguendo, that plaintiff’s declaration is based on an “account stated” (which defendants have put in issue by their general denial), we conclude that the above statement is not sufficient to amount to or create an account stated, or an admission by the defendants that they owed plaintiff $29,427.10.
“The conversion of an open account into an account stated, is an operation by which the parties assent to a sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account.” White v. Campbell, 25 Mich 463, 468.
“An account stated means a balance struck between the parties on a settlement.” Watkins v. Ford (syllabus), 69 Mich 357.
To the same effect, see Kusterer Brewing Co. v. Friar, 99 Mich 190; Thomasma v. Carpenter, 175 Mich 428 (45 LRA NS 543, Ann Cas 1915A, 690).
Pabst Brewing Co. v. Lueders, 107 Mich 41; and Corey v. Jaroch, 229 Mich 313, relied upon by plaintiff to show that his declaration and the statement attached thereto (which defendants have denied in their answer) are binding on the defendants as an “account stated,” are readily distinguishable from the case at bar, on their facts.
We agree with appellants that the motions and their affidavits filed by the parties show questions of fact which preclude the entry of a summary judgment for the ■ plaintiff, for the amount claimed. Among the decisions here which indicate circumstances under which it is error to enter a summary judgment, where there are questions of fact to be determined, are the following: Grand Dress, Inc., v. Detroit Dress Co., 248 Mich 447; Baxter v. Szucs, 248 Mich 672; Hart & Crouse Co. v. Pelavin, 257 Mich 637; Cass v. Washington Finance Co., 263 Mich 440; Lammie v. Klug, 264 Mich 323; Dempsey v. Langton, 266 Mich 47; Edoff v. Hecht, 270 Mich 689; Douglas v. Milbrand, 302 Mich 227; Young v. International Harvester Co., 304 Mich 568; Bullard Gage Co. v. Saffady, 307 Mich 296; Sams v. O’Sheskey, 323 Mich 177; Kaminshi v. Standard Industrial Finance Co., 325 Mich 364; Berman v. Psiharis, 325 Mich 528.
It is not necessary to encumber this opinion with a discussion of the facts and circumstances in each of the above cases wherein a summary judgment has been set aside by this Court and the case remanded for further proceedings.
Judgment set aside and case remanded. Costs to appellants.
Case, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred.
Obviously au error. Plaintiff’s claim was for $29,427.10. | [
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Sherwood, J.
Complainants, on the 8th day of June, 1881, recovered a judgment against John N. Gott, of Ann Arbor, upon two notes-given by him for goods purchased in 1879. The execution issued upon said judgment was levied upon the lands involved in this suit. The bill of complaint is filed in this case, in aid of said execution, as against two deeds made by John N. Gott to his daughter, Mrs. Julia A. Pitkin, une of the defendants. One of said deeds was made September 23, 1879, and the other September 23, 1880. The plaintiffs claim that these conveyances were made without consideration, and after the indebtedness to them was incurred, and while Mr. Gott was in great financial embarrassment, if not insolvent.
The defendant Gott avers in his answer to complainant’s bill, first, that he was not insolvent when the deeds were made, nor financially embarrassed; that his assets greatly •exceeded his liabilities ; second, that the deeds made to his daughter in 1879 and 1880 were upon good and valuable consideration ; third, that the property deeded to her consists of a valuable house and lot, a homestead which was in fact conveyed to her in 1876, long befoi’e the indebtedness to the complainants is claimed to have arisen, and that the last two deeds were given simply to replace the first, which had been delivered to complainant but not recorded, and which had been destroyed by him, to whose keeping she had intrusted it.
Mrs. Pitkin answered, setting up substantially the same facts. The testimony is quite voluminous upon both sides. The circuit judge, on the hearing, rendered a decree in favor of complainants, requiring Mrs. Pitkin to pay the judgment in thirty days after notice of the decree, and, in default, the property mentioned in her deeds to be sold. During the litigation John N. Gott died and Mrs. Pitkin was permitted to proceed in the case alone, and she alone brings her appeal to this Court.
We are unable to see upon what ground this decree can be supported. A careful inspection of the record fails to satisfy us that John N. Gott was insolvent even when he made the last two deeds. The deed in both cases covers the same premises. It was conceded, on the hearing before us, that if the deed made in 1876 was delivered before the indebtedness sought to be recovered arose, the complainants must fail. We shall not attempt an analysis or discussion of the testimony in the case, but will say a careful perusal of it leaves no doubt upon our minds as to the fact of delivery. It was true the father always had the custody of the deed, but it was for her, and after it was made, he repeatedly recognized its execution and delivery. Mrs. Pitkin occupied the premises as her own several years, and they were so understood to be hers and spoken of by Mr. Gott, the family and friends. It further appears that Mrs. Pitkin had been very kind .to her .father, had undergone much labor, anxiety and fatigue in caring for him when sick, and it was evidently his desire to-do something for his daughter and make suitable recognition of her affection for and faithful kindness to him, which constituted the consideration for the deeds sought to be invalidated by the complainants. The deed of 1879 was a quitclaim and retained a life interest; but this not being satisfactory to Mrs. Pitkin, at her request he made the second deed. All these however were based upon the same consideration. This was of no consequence, as complainants’ claim was long subsequent to the transfer, and no question is made of John N. Gott’s solvency in 1876, as the testimony shows he was then in affluent circumstances.
It is unnecessary to consider the case further.
The decree must be reversed with costs and the complainants’ bill dismissed.
The other Justices concurred. | [
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Champlin, J.
The bill in this cause is filed to reform a deed made by Harvey and Desire Hodskiss to Mary E. Murphy, dated May 24, 1866, conveying the jaorthwest quarter of the northwest quarter of section thirty-three, in the township of Locke, Ingham county, Michigan, so as to convey to MaryE. Murphy the land above described during her life, with remainder over to Alice P. Puddy and Julia M. Puddy, in fee, and to adjudge the complainant the owner of said land in fee as the grantee of Alice P. and Julia M. Puddy, and to compel defendant to release, surrender, and deliver up the possession of the premises to complainant. It will be necessary, for a proper understanding of the case, to set out quite fully the allegations of the bill upon which complainant predicates his claim to equitable relief.
He states that he is one of the sons and heirs at law of Levi Bowley, deceased, and owns property and real estate liable for the payment of claims against the estate of Levi Bowley, deceased, and being such heir, and liable for the payment of such claims, he, on the 12th day of October, 1881, settled and paid a certain claim of Alice P. Puddy and Julia M. Puddy against the said Levi Bowley, as their guardian, for the sum of $508.82, being the amount found due to them by the Hon. Greo. E. G-illam, judge of probate of Ingham county, from the said Levi Bowley on account of money that came to his hands as guardian of said Alice P. and Julia M. Puddy, who are of the ages of twenty-eight and twenty-five years, respectively ; that they resided in the county of Ingham until the spring of 1870, and then removed to Iowa, where they have ever since resided; that their father, Elijah Puddy, died in June, 1861, seized of 80 acres of land in section 28, Ingham county, which descended to said Alice P. and Julia M. Puddy, and their mother, Mary E. Puddy, widow of said Elijah, as his only heirs at law; that at the time of his death be was residing on this land as a homestead, and owned no other land; that Mrs. Puddy, in December, 1864, married one James S. Murphy; that in November, 1865, she petitioned the probate court of Ingham county to have Levi Rowley appointed guardian of Alice P. and Julia M., her minor children under the age of fourteen years, which was done on the 20th day of, November, 1865 ; that the guardian^ immediately petitioned said court for a license to sell the above real estate, which was granted, and on the 28th day of March, 1866, the guardian sold the premises to William J. Rowley for $400, which sale was confirmed by the court, and a conveyance made accordingly; that the guardian, on the 24th of May, 1866, re-invested the proceeds of the sale of said real estate in other real estate, described as the northwest quarter of the northwest quarter of section thirty-three, in town four north, range two east, Michigan, the purchase being made from Harvey Hodskiss and Desire Hodskiss, and that the understanding between said guardian and Desire and Harvey Hodskiss and the grantee, Mary E. Murphy, the mother of said Alice P. and Julia M. Puddy, was “that the conveyance should be made, and was made, to said Mary E. Murphy during her life, with remainder over in fee to said Alice P. and Julia M. Puddy. And that said deed was delivered and accepted with the understanding, by all the parties above mentioned, that, as a matter of fact, it was so drawn that it conveyed but a life estate to said Mary E. Murphy, with remainder over in fee to said Alice P. and Julia M. Puddy; that it was well understood by the grantee,- said Mary E. Murphy, that she was to take, and did take, only a life estate by said conveyance; and that her intention, as well as that of said guardian and said Desire and Harvey Hodskiss, was that the deed of conveyance should be so drawn as to convey to her only a life estate, with remainder over in fee to said Alice P. and Julia M. Puddy, and that they all supposed the fact to be at the time said deed was delivered and accepted that it was so drawn as to carry out that intention; that the purchase was made by said guardian with the money of his said wards, Alice P. and Julia M. Puddy, and for their benefit, which facts were well known to said grantee; but that by the fraud or mistake of the conveyancer the names of said Alice P. and Julia M. Puddy, nor either of them, was mentioned in said deed of conveyance, but that the same was drawn according to the usual printed forms of full covenant warranty deed, with the word ‘assigns’ erased wherever the same occurs 'therein; that afterwards, on the fifth day of April, A. D. 1870, the said Mary E. Murphy, intending to convey only her life estate in and to said lands and premises to one "William C. Towsley, signed, sealed, acknowledged and delivered a quitclaim deed of said premises, which deed was on the 18th day of April, A. D. 1870, duly recorded in the office of the register of deeds of said county, in Liber 17 of Deeds, on page 350; that the said Mary E. Murphy did not at that time suppose that she had any greater interest than a life estate in said land and premises, and did not attempt to convey any greater interest to said Towsley; and that the said William C. Towsley well understood that the said Mary E. Murphy did not claim any other or greater interest in and to said lands and premises than a life estate, as above mentioned; and that it was expressly understood and so stated to said Towsley, previous to and at the time of giving the quitclaim deed aforesaid, that she only sold her life interest therein; that that was all the interest she had, and all the interest-she pretended to convey or he to purchase; that the said William C. Towsley gave the said Mary E. Murphy, for her life interest in said lands and premises, so deeded to him as aforesaid, an old team of. horses, one of which was blind, an old single buggy, a silver watch, and $85 in money, the whole not exceeding in value the sum of $250, whereas said lands, at the time of the conveyance of the same to said Towsley, as aforesaid, were worth the sum of $800; that on the 16th day of December, A. D. 1875, the said Mary E. Murphy, the mother .of Alice P. Puddy and Julia M. Puddy, died in the county of Marion and state of Iowa, where she had resided since the spring of A. D. 1870, and that the said Alice P. and Julia M. Puddy then and thereby became and were in equity sole owners of said lands and premises, with tbe appurtenances, and were then entitled to the possession thereof, and that all the right, title and interest of said William C. Towsley therein then ceased and were extinguished at her death' but, with intent to cheat and defraud the said Alice P. and Julia M., he has refused to deliver them possession or recognize them as the owners; that no suit was instituted by the said Alice P. and Julia M. Puddy, or by any other person or persons, to establish and enforce their rights in and to the said lands and premises so held by the said Towsley, or to recover the possession thereof, but that the said Alice P. and Julia M. Puddy instituted proceedings in the probate court for the said county of Ingham for the recovery of the money claimed to be due them from the said guardian, Levi Rowley, on account of the,money received by him as their guardian; “that the claim was duly contested, and that [the] court determined and decreed that they were entitled to the sum of $508.82 on account of the property and money belonging to them, and received by their said guardian in his life-time; that the estate of Levi Rowley has been wholly divided up among the heirs of Levi Rowley a long time since; that in consideration that he is one of the heirs at law and liable with the others for the payment of said claim so allowed by said probate court as aforesaid, and for the further consideration that the said Alice P. and Julia M. Puddy should and did on said 12th day of October, A. D. 1881, convey to your orator all the right, title, claim and interest in and to said northwest quarter (¿) of the northwest quarter (|) of section 33, in said town of Locke, by good and sufficient deed of conveyance, duly signed, sealed, acknowledged and delivered ; that complainant did on said 12th day of October pay said claim of said Alice P. and Julia M. Puddy so allowed as aforesaid by the probate court, and receive said deed of conveyance.
Complainant therefore says that by the payment of said claim by him, and receiving said deed of conveyance from the said Alice P. Puddy and Julia M. Puddy as aforesaid, he succeeded to all their legal and equitable rights and interests in and to said lands and premises, with the appurtenances, and that he is now the absolute equitable owner of the same; but that the said William O. Towsley, with intent to cheat, wrong and defraud complainant, still pretends and claims that he is the sole owner thereof, and entitled to the possession, and refuses to recognize any right, claim or interest of complainant therein; that the said Levi Rowley remained the guardian of said Alice P. and Julia M. Puddy up to the time of his death, which occurred in the spring of A. D. 1869, and that after his death no other guardian was appointed for them, and that no settlement of his account as their guardian was ever made by him in his life-time, or by any person for him since his death, until by the payment of the claim, allowed as aforesaid, by complainant on the 12th of October, 1881; that it was understood by the guardian that the wards were the owners in fee of said lands, subject only to the life estate of Mary E. Murphy, and that the same would be taken and accepted by them as payment in full for the money received by him as their guardian; and that so they would had they not been prevented from so doing by the wrongful acts of defendant; and complainant prays that the said deed from Desire Hodskiss and Harvey* Hodskiss to Mary E. Murphy, bearing date the 24th day of May, A. D. 1866, of said lands and premises, may be so reformed that the same shall convey said premises to the said Mary E. Murphy during her natural life, with remainder to said Alice P. Puddy and Julia M. Puddy, in fee, according to the intention of the parties as aforesaid; and that the said William C. Towsley may be decreed to surrender and deliver up the possession of said premises, with the appurtenances to complainant, his agent or attorney; and that complainant may have such other and further relief- in the premises as equity may require, and that the said William C. Towsley, his agent, attorneys and solicitors, may be restrained by an injunction, issuing out of this Court, from granting, bargaining, selling, disposing of or conveying said premises, or any part thereof, or incumbering the same by mortgage or otherwise.
There is no evidence whatever that the deed from Hods-kiss to Mary E. Murphy failed to mention the names of Alice P. and Julia M. Puddy through thq fraud of the conveyancer. It is claimed, however, that their names were omitted by mistake, and the mistake consisted in the conveyancer’s view of the legal, effect of erasing the word “ assigns” from the ordinary form of a warranty deed. The deed was drawn by Levi Rowley, the guardian, and proof has been introduced to show what his intentions were in making the purchase, and in drafting the deed in the manner he did. The tendency of the testimony was to prove that Levi Rowley intended that the deed should be so drawn as to vest in Mary E. Murphy an estate for life, and upon her death it should descend to Alice P. and Julia M. Puddy, as her heirs at law, to the exclusion of any other heirs she might have at the time of her death; and that he believed that he accomplished this result when he drafted the deed upon an ordinary form of warranty deed and erased the word “assigns.” At the time this deed was drawn Levi Rowley, had, under a license from the probate court, sold the real estate of his wards to his son, William Rowley, and it appears from the testimony that Mrs. Mary E. Murphy at the same time conveyed her dower interest in the land to William Rowley; the whole consideration paid by William, over and above some mortgage incumbrances, being four hundred dollars. ,,As a part of this same transaction, relative to the purchase of the ILodskiss lands, a contract for the support of the minor children was entered into between Mrs. Murphy and,her husband and the guardian, as follows:
“Know all men by these presents, that we, James L. Murphy and Mary E. Murphy, Locke, Ingham county, Michigan, do covenant and agree with Levi Rowley, guardian of Alice P. Puddy and Julia M. Puddy, minors, for and in consideration of having a certain piece or parcel of land known as the northwest £ of the northwest £ of section 33, in town four north, of range two east, in the state of .Michigan, conveying to the said Mary E. Murphy and her heirs, she being the mother of said minors, — the said minors having an interest in the hands of the said guardian of $344.80, being a part of the money paid for the above-described premises by the guardian of the said minors for their benefit, — that we, the said James L. Murphy and Mary E. Murphy will provide for, support, care for and educate the said Alice P. Puddy and Julia M. Puddy, minors, until they shall each arrive at the age of 21 years, without any further charge to said minors, or any other person, other than the consideration mentioned in this agreement, the receipt whereof is hereby confessed and acknowledged. In witness whereof, we have hereunto set our names and seals this twenty-eighth day of March, A. D. 1866.
Mart E. Murphy.
James L. Murphy.
And in the presence of George Dunckle and James Sullivan.”
This is the only writing introduced in evidence which was executed at or about the time having a tendency to throw any light upon the transaction. This was shown to be in the handwriting of Levi Powley, and refers to the deed in question as conveying the premises in dispute to Mary E. Murphy and her heirs, and there appears to be no doubt but that the deed is drawn just as he intended to have it drawn. If a mistake occurred at all it was a mistake of law in supposing that a deed thus worded would convey only a life estate to Mrs. Murphy instead of a fee-simple. There is respectable authority for holding that, under certain circumstances, courts of equity have jurisdiction to reform a deed or other written instrument where the mistake was one of law; but under the facts of this case it becomes unnecessary to pass upon that question, as there exist insurmountable difficulties in the way of granting any relief whatever to complainant.
There was considerable testimony introduced for the purpose of showing the value of the land at the time defendant purchased, as tending to prove that he only could have intended to purchase the life estate of Mrs. Murphy, measuring such interest by the consideration paid. Hodskiss purchased the land in 1860, paying therefor four hundred dollars. In 1866 he sold it to Mrs. Murphy for five hundred and fifty dollars. Mr. Dunckle, the agent of Mr.' Hodsldss, through whom this land was sold to Mrs. Murphy, says that both he and Mr. Hodskiss considered the land well sold for $550; and at the time Towsley bought it he did not think there was very much rise in the value and that $600 would be an outside figure. Defendant Towsley paid what was agreed upon between the parties as $400, and he says that he thought he was paying all it was worth. The land is described as being upon a highway7 but little traveled; the surface uneven, and broken with pond holes, part of.it lying quite low; about six acres had been partly improved, but not wholly cleared from logs and stones, and had never been plowed; the balance of the land had been run over and the salable timber taken off; two-thirds of the south half was what the witness styled “ black ash swales,” low land and watery ; there was an old log-house upon it, with scarcely any upper or lower floor; “ it was a pretty bad wreck.” After Towsley purchased he. went on and improved the place, so that at the time the testimony was taken he had twenty-eight acres cleared and “ all under the plow;” he had set out an orchard of 55 apple trees, and dug 120 rods of ditch; built a barn and small addition to the house, and built fences, etc. We are satisfied from the testimony that there had been no very material improvements made on the place between the time Mrs. Murphy purchased and the sale to defendant. Neither Mr. nor Mrs. Murphy owned a team or farming utensils. The testimony bearing on the subject indicates quite clearly that the defendant supposed he was purchasing the title in fee-simple to the premises, and his subsequent actions have been quite consistent with that intent.
At the time of the sale to defendant no claim whatever was made that there was a mistake in the terms' of the deed. The only questions were whether by its terms it conveyed to her a title in fee-simple, and whether she could convey such title to a purchaser. Upon these questions the defendant sought advice, and was informed that the erasure in the deed of the word “ assigns ” did not limit the quantity of the estate conveyed to less than a fee, nor limit or restrict her power of alienation ; and Mrs. Murphy received the same information before she executed the deed to defendant. Mrs. Murphy appears to have been quite anxious to effect a sale for the purpose of removing to Iowa, and may have been quite willing to accept an offer at less than what the premises were really worth to enable her to do so. We are not. prepared to say that there was such a discrepancy between the actual value and the purchase price paid by defendant as to furnish evidence tending in any very considerable degree to prove that he knew that he was purchasing only a life estate instead of the fee of the land. The decided weight of the evidence proves quite the contrary. However that may be it becomes quite immaterial under the view we take of this case.
The foundation of the complainant’s claim to equitable relief, as stated by himself is as follows: “Your orator, therefore says that by the payment of said claim by him, and receiving said deed of conveyance from the said Alice P. Puddy and Julia M. Puddy as aforesaid, he succeeded to all their legal and equitable rights and interests in said lands and premises, with the appurtenances, and that he is now the absolute equitable owner of the same.” If this claim is found to be fallacious, it will be useless to inquire whether there was a mistake in drafting the deed, which would authorize a court of equity to reform it; or whether or not defendant was an innocent purchaser. Did the fact that complainant paid the claim established in the probate court against the estate of Levi Rowley by Alice P. and Julia M. Puddy confer upon complainant any equity to compel a reformation of the deed from Harvey and Desire Hodskiss to Mary E. Murphy, in the manner prayed for in the bill of complaint and as decreed in the court below ? The validity of the claim established in the probate court is not questioned by complainant; indeed, it is made the basis of his rights. That claim could only have been established upon the theory that Levi Rowley as guardian for the claimants, had wrongfully invested their funds in the purchase of the lands from Hodskiss. These were trust funds in his hands and when he purchased real estate therewith, without an order of the court, the oestuis que trustent had the right on arriving at majority, to follow the funds .into the land and hold it, as against any one having notice of the fact that it was purchased with trust money; or to repudiate the act of the guardian and hold him, or in case of his death, then his estate, liable for the moneys come to his hands. But they could not do both. They could not follow and reclaim the land, and hold their guardian responsible for the money invested in the land at the same time. The two positions are contradictory and so inconsistent that the assertion of the one involves the repudiation of the other. Thompson v. Howard 31 Mich. 312. They elected to proceed against the estate of their guardian to recover the funds, treating them as still in his hands. Their choice, as the testimony shows, was made deliberately and with the aid of eminent counsel. It seems that as soon as their claim was allowed in the probate court against the estate of Levi Bowley, the complainant voluntarily paid the whole amount.
The fact however, of the payment of this claim by the heir creates no equity in his behalf, either against the land in question or in the deed by which it was conveyed from HodsIriss to Mrs. Murphy. The claim was a debt or obligation against the guardian, Levi Bowley, and was a charge against his estate in the hands of the distributees. Levi Bowley in his life-time would have had no defense against this claim of his wards; much less could he have compelled a reformation of the deed so as to vest the fee-simple in his wards after they had repudiated his purchase. There is no principle of equity -which recognizes the right of a trustee whose wrongful act in investing moneys has been repudiated by the cestuis que trustent, to be subrogated-to their equities, and to enforce the trust for his own benefit to the same extent they could have done had they not repudiated the wrongful act. A tort-feasor cannot make his own wrongful act the basis of an equity in his favor. To do so would be like reversing the current of a stream, causing it to flow to instead of from its source. Complainant did not acquire any equity by paying the debt due from Levi Bowley to Alice P. and JuliaM. Puddy, to relieve his land from the lien created by such indebtedness. And were it possible to transfer the lion from his lands to the land of defendant on the ground that defendant was a purchaser with knowledge of the misapplication of the funds, it could only be done to the extent of the lien upon his own lands, which he was required to pay. It would be a perversion of justice to divest the defendant of his land, valued by complainant’s own witnesses at from twelve to sixteen hundred dollars, and transfer it to complainant in satisfaction of his lien without opportunity for redemption, and it can only be justified on the theory .that the complainant is entitled to a reward or premium for the breach of trust of his ancestor.
Equally barren of equity is the other ground alleged by complainant as entitling him to relief. Complainant acquired no title whatever, legal or equitable, by virtue of the deed from Alice P. and Julia M. Puddy, for the reason that they had no legal or equitable title to convey. They had repiidiated the investment of their funds in the land, and had elected to hold their guardian responsible for their money. The estoppel of an election extends beyond the immediate parties, and binds all who claim under or who are connected with them as privies. Merrick's Estate 5 W. & S. 9. They having repudiated the deed from Hodskiss to Mary E. Murphy, could claim no right to have it reformed, and consequently could confer no such right upon the complainant. “ Unless complainant shows that he holds under the deed sought to be reformed, he makes no showing of equities.” Ballentine v. Clark 38 Mich. 395.
The decree of the circuit court must be reversed and a decree entered here dismissing the bill of complaint, with costs to defendant, of both courts.
The other Justices concurred. | [
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Dethmers, J.
Plaintiff appeals from a directed verdict of no cause for action in bis suit for malicious prosecution for attempted arson. Essential to Ms right to recover is want on defendants’ part of probable cause to believe him guilty of the offense charged when they initiated the prosecution. Thomas v. Bush, 200 Mich 224. When a defendant in a case of malicious prosecution has in good faith fully and fairly stated all of the material facts within his knowledge to the prosecuting attorney and signed the complaint on the latter’s advice, a case of probable cause is established, barring plaintiff’s right to recover. Thomas v. Bush, supra; Baker v. Barach, 297 Mich 219. When the facts are undisputed, want of probable cause is a question of law to be determined by the court. Thomas v. Bush, supra; Baker v. Barach, supra. When the undisputed facts or all the-testimony, construed in the light most favorable to-plaintiff, fail to show want of probable cause a verdict for defendant should be directed. Clanan v. Nushzno, 261 Mich 423.
In the instant case the testimony, after disclosing-a long record of trouble between plaintiff and one of defendants, established that defendant Miller owned, and defendant Godin leased from her, a cement block building, attached to which was a wooden lean-to 36 feet long and 5 feet wide in which empty beer and pop cases, cartons and paper were stored. Plaintiff operated a gasoline station nest door. A passer-by testified that he saw plaintiff place burning paper against the wooden lean-to and heard him say, “Look out! Get out! I’m going to blow this place out.”' The witness further testified that he thereupon ran to defendant Miller and told her all this and that plaintiff “run away right away like lightning.” Defendant Miller told defendant Godin about the occurrence and they went to the office of the prosecuting-attorney and discussed the matter with an assistant there. He caused an investigation to be made by the-sheriff’s department and testified on trial that defendants had told him nothing that he did not later learn to be true from the sheriff’s report. After-receipt of that report the assistant prosecuting attorney told defendants to go to the municipal court to> sign a complaint, which defendant Miller did. A warrant issued, plaintiff was arrested, the case was set for trial and, after a number of adjournments, it was dismissed because of defendants’ failure to appear at the final adjourned date.
Plaintiff contends that the court erred in directing a verdict, first, because defendants could not reasonably have believed that plaintiff, by his above-described acts, was attempting to set fire to the building-when they knew it was of cement block construction, and, second, because defendants did not fully and fairly disclose to the assistant prosecuting attorney that the building was of such construction. These contentions are without merit in view of testimony that the fire was attempted to be set to the wooden lean-to containing cartons and papers and covered,, as was the building proper, with a wood and tar roof, and of undisputed testimony that the passer-by related this as a fact to defendant Miller, and of the fact that the complaint was not taken nor the warrant issued until after sheriff’s officers had interviewed witnesses, examined the premises, and reported with respect thereto to the prosecuting attorney, and that on that basis the complaint and warrant were prepared, which described the building in question as being of cement block construction. From all this it is clear that the prosecution of plaintiff did not result from defendants having misinformed the prosecuting attorney, the magistrate ■or the sheriff’s officers concerning the construction of the building, and, further, that plaintiff failed to show want of probable cause on defendants’ part to believe that plaintiff was guilty as charged.
Affirmed, with costs to defendants.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Kelly, JJ., concurred. | [
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