text:
    RICHARDS v. CHURCH BALANCE-GEAR CO.
    1. Partnership Associations — Appeal and Error — Contracts —Statutes.
    The objection that a contract of hiring not signed by two managers of a partnership association, limited, is an invalid contract (3 Comp. Laws, § 6083), the execution of the agreement being specifically admitted by the defendant’s plea and notice, may not be raised for the first time on error.
    3. Same — Evidence.
    Reversible error was not made out in the excluding by the court of answers to questions whether or not the secretary of the limited partnership ever reported to the board of managers a proviso in plaintiff’s alleged contract of employment permitting him to exchange, at par, stock which defendant was to issue to him under the contract, for cash, since neither side claimed that the contract was made by the board.
    3. Same — Trial.
    Nor was it error to refuse defendant’s request to charge that there was no evidence that defendant ever contracted to take back stock issued as a part of the agreed salary, upon a reoord showing that the shares were issued to plaintiff as trustee, no creditor’s rights being involved, defendant being solvent, and there being testimony, although it was contradicted, which tended to prove the alleged arrangement.
    4. Same —Master and Servant —Contract of Hiring —Work, Labor and Services.
    Where the record did not purport to contain all of the evidence, and the original contract of hiring was for a year, at the end of which time, plaintiff claimed, the parties renewed it, and the evidence tended to show that both parties understood the contract was for a definite term, no error was committed in charging the jury that the contract was for a definite period and continued to the end of the year for which plaintiff sought to recover.
    5. New Trial — Newly Discovered Evidence.
    The court properly denied a motion for a new trial supported by affidavits that one of defendant’s witnesses had, since the trial, discovered a diary and memorandum that had refreshed his recollection and would have an important bearing upon the issue.

      Error to Kent; McDonald, J.
    Submitted April 14, 1911.
    ( Docket No. 44.)
    Decided July 5, 1911.
    Assumpsit by J. Prank Richards against the Church Balance-Gear Company, Limited, upon a contract of hiring and on the common counts. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Kleinhans & Knappen, for appellant.

      Charles E. Ward, for appellee.
    Plaintiff’s amended declaration contains the common counts in assumpsit and a special count, wherein it is alleged that on July 1, 1908, he entered into a contract with defendant, by the terms of which he was to be employed by defendant for one year from said date, at a salary of $2,400, payable in monthly installments; that it was agreed that defendant should issue to him one share of its stock in addition to said salary; that he should draw his salary at the rate of $125 monthly, the remaining $75 to be credited to him in stock of defendant at par, which was $100 per share; that at the end of the year, or of plaintiff’s employment, he might elect to receive cash, instead of stock. It is alleged further that at the end of the year the said contract of employment was renewed for another year, and plaintiff was thereafter employed until December 16, 1909, when, without cause, defendant, against the protest of plaintiff and his claim that he was hired until July 1,1910, notified and required plaintiff to discontinue his services; that defendant paid plaintiff $125 monthly to and including November, 1909; issued'to him theone share of stock; issued to him seven othershares of stock; and, onPebruaryl, 1910, he tendered such stock to defendant, electing to draw his entire salary in cash. Items of his bill of particulars are the monthly balances of salary for the months of July, 1908, to and including January, 1910; the total being $1,675.
    Defendant, which is a partnership association, limited, and successor to a similar organization, with its plea of the general issue, gave notice that Holson Motor Patents Company, Limited, of which it is the successor, entered into a contract with plaintiff, the terms of which are stated as plaintiff in his declaration states them, with the exception that no option to take cash, instead of stock, is included; that performance of the contract was begun July 1, 1908, and that the employment was continued without any subsequent agreement until December 31, 1909, when it was terminated. Plaintiff was paid in cash $2,125, and there were issued to him nine shares of stock, of a value of $900, and six other shares of stock were issued and offered to him and refused; in this way defendant has paid, and offered to pay, $3,625. Plaintiff is indebted to defendant in the sum of $1,692.75, the items of which account are the 15 shares of stock and certain other items stated ; one of them, of $17.15, being, however, withdrawn at the trial.
    At the trial there was a verdict and judgment in favor of plaintiff of $1,536.48. Defendant moved for a new trial, which was refused.
    With the bill of exceptions, there are assignments of error, 13 in number. None of them appear to be specifically referred to in the brief for appellant. The exceptions to which the record refers us relate to the rejection of certain testimony of the witness M. Clay Church, refusals to charge as requested, the charge of the court, and those following the refusal of a new trial.
    The propositions discussed in the brief for appellant are:
    “ (1) The contract was invalid and was not properly executed in behalf of defendant.
    “ (2) The testimony of M. Clay Church was admissible as showing no action by the defendant company
    “ (3) The contract was for an indefinite period of time at a yearly salary.
    “(4) A new trial should have been granted because of testimony discovered subsequent to the trial.”
   Ostrander, C. J.

{after stating the facts). The first proposition is based upon the statute (2 Comp. Laws, § 6083) and upon a supposed failure of the testimony to prove that the contract of hiring was signed by two managers of the defendant association. We are not referred to any ruling upon the subject, and have found in the record no reference to any such defense. On the contrary, the notice given with the plea admits a contract of hiring. Raised for the first time in this court, the point is not open for consideration.

The witness M. Clay Church, who was secretary of defendant, was asked:

Q. Whether or not at any meeting of that board [ meaning defendant’s board ] there was brought up the question of Mr. Richards, under any contract he might have, having a right to tender back his stock and receive cash for it.”

And again:

“With your honor’s permission, I want to ask this witness the same question with reference to the year 1909; whether the matter of Mr. Richards having a right to surrender his stock received as a part of his salary and take cash for it was ever brought before the board.”

Answers were excluded. The trial proceeded upon the theory that a contract of hiring had been made, but no one claimed it was made by the board. One of the terms of the contract, as stated by plaintiff, was disputed. Certain correspondence was in evidence and indicated some of the terms of the contract. Defendant’s officers, or some of them who-made the contract, were available as witnesses and gave testimony. Mr. M. B. Church, who negotiated the contract of hiring, testified, and his testimony is undisputed, that he never reported the matter of the option of plaintiff to take cash instead of stock to the board, and never said anything about the matter to any member of the board. Under the circumstances, we think reversible error is not made out.

It may be said, also, although the point is merely stated and not argued, that it was not error to refuse to give defendant’s request that there was no evidence that defendant ever contracted to take back stock issued as a part of his salary. The cases of Wilbur v. Stoepel, 82 Mich. 344 (46 N. W. 724, 21 Am. St. Rep. 568), and Scripps v. Sweeney, 160 Mich. 148, 163 (135 N. W. 72), are not in point here. Plaintiff alleges, and defendant admits, a contract with the defendant. The testimony tends to prove a conditional purchase of shares in accordance with the contract, and that they were issued to plaintiff as “trustee.” There is involved no theory of a private contract between one of the partners and the plaintiff. The rights of general creditors of defendant are not involved, nor the solvency of defendant. See McIntyre v. E. Bement's Sons, 146 Mich. 74 (109 N. W. 45).

Defendant asked that the jury be instructed that the contract was one at will and defendant not liable for any salary after January 1, 1910. The court ruled that the contract of hiring was a contract from year to year, and not one for an indefinite period, and that it terminated July 1, 1910, unless plaintiff was sooner discharged for cause. It is said there is no testimony that the hiring was for a year. It does not appear that the record contains the substance of all the testimony given upon the trial. Clearly the declaration asserts, and the notice of special matter of defense admits, that the original contract was for a period of one year from and after July 1, 1908. It is said in argument that it was permissible to amend the notice to agree with the testimony, and that the position of counsel for defendant amounted to an amendment; at least excused the failure to offer to make a formal amendment. We cannot assume that, if defendant had indicated upon the trial the desire to amend the notice of its defense, plaintiff would not have supplied, for the court and jury, additional evidence in support of his theory that the contract was for a definite period. We find in the record considerable testimony tending to prove that the parties understood that the hiring was for a definite period. Some of it, it is true, indicates that plaintiff desired a permanent position, and a mutual desire that both parties would find it agreeable to renew the arrangement at the end of the year upon the same or upon other terms. We find no testimony tending to prove that it was the understanding of either party that the contract might be terminated at the will of either, except that showing the action of defendant in dismissing the plaintiff.

Matter, other than that arising upon the trial, advanced as a reason for a new trial, was newly discovered evidence. It was set up in an affidavit. Plaintiff filed a counter affidavit. It is apparent from these affidavits that if the matters contained therein should be given in evidence upon a new trial an issue of fact would arise thereon relating wholly to the amount of the salary agreed to be paid to plaintiff. We think the court was not in error in finding that the explanation made by plaintiff was not materially inconsistent with the testimony given by him at the trial. The showing that the defendant’s witness M. B. Church has since the trial found a daily diary and memorandum in several books which refresh his recollection, and that “the said diaries and memoranda have a very important bearing upon the issues in said case, and their production will, he believes, bring about an entirely different result in case a new trial is granted,” presents no reason for granting a new trial.

The judgment is affirmed.

Bird, Hooker, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    MICHIGAN LUMBER YARD v. BLESCH.
    Principal and Agent — Building Contract — Architects—Scope of Authority — Materialmen — Trespass on the Case — Fraud.
    No authority to bind the owner of a building under construction is conferred upon the architect so as to render the owner liable for the false representation of such architect to a materialman concerning the amounts that had been paid out under a building contract which provided that the work should be done under the supervision of the architect whose decision as to the construction and meaning of his drawings and specifications should be final, who should determine what modifications should be made, and that the contract price should be paid to the contractor only upon the certificate of the architect.
    Errorto Wayne; Rohnert, J.
    Submitted April 7,1911.
    ( Docket No. 48.)
    Decided July 5, 1911.
    Case by the Michigan Lumber Yard, a corporation, against August F. Blesch, for false representations. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      E. T. Berger, for appellant.

      F. H. & G. L. Canfield and Hugh M. Edwards (George F. & Peter J. Monaghan, of counsel), for appellee.
   McAlvay, J.

Plaintiff brings this case to this court upon writ of error from a judgment entered upon a verdict directed against it by the court. The suit was an action of trespass on the case. The facts necessary to be stated are: That plaintiff was a dealer in lumber and other building materials in the city of Detroit, and furnished a large quantity of such materials to a contractor named Schneider, who, under a written contract with defendant alone, was at the time constructing a double dwelling house upon real estate in said city owned by defendant and his wife jointly; that the materials so furnished went into the construction of this building. Under the written contract this building was to be constructed according to plans and specifications of Louis Kamper, architect. This was not an unusual contract, and as far as this case is concerned we need only recite the authority conferred by its terms upon the architect. The only references in it relative to his authority are as follows:

“It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the said architect, and that his decision as to the true construction and meaning of the drawings and specifications shall be final. * * * No alterations shall be made in the work except upon the written order of the architect; the amount to be paid by the owner or allowed by the contractor by virtue of such alterations to be stated in said order.”
“ It is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and material shall be |9,300, subject to additions and deductions as hereinbefore provided, and that such sum shall be paid by the owner to the contractor in current funds and only upon certificates of the architect as follows [giving the amounts and times of payment as the work progressed].”

Plaintiff predicates the liability of defendant in a suit of trespass on the case upon certain statements and representations of the architect, Kamper, claimed to have been made as agent of defendant, which it is claimed were false, and upon which plaintiff acted to its damage; that such damage resulted to it on account of forbearing from instituting lien proceedings or other action to secure itself for the amount owing to it by the contractor, Schneider.

It appears from the record that on December 12, 1908, two representatives of plaintiff went to Mr. Kamper about getting money on the Schneider account, who claim Kamper said to them that he could not pay any money on that job until the floors were laid, and that he would not pay out any more until that time. He got out the books and showed them the contract, and showed that $4,620 was due Schneider, and said there was plenty of money to pay; that when the floors were laid $2,000 would be due on the contract and plaintiff would get its proportion; that they would be notified before any more money was paid. Plaintiff further shows that its representative told Hamper that he must have some money or be secured, and if he did not get money he would take steps to secure it. He was shown the books, and was satisfied by the promise; that he relied upon what Hamper said, and if he had not made these statements he would have taken steps to secure the claim. He saw Hamper again on the 15th or 16th day of February following, the day after the floors were laid, and told him he had come after his money. Hamper replied that he could not pay him, that he had no money. When asked what he had done with the $4,620 he had December 12th, which he promised he would not pay out without giving plaintiff notice, Hamper said but $1,400 remained. None of this was paid plain» tiff, and it did not receive any payments afterwards. Plaintiff’s representative later saw defendant, and told him that he had been to see Hamper to get a certificate for the money, and related what Hamper had said, and defendant referred him to Hamper, saying that Hamper had charge of everything with regard to payments on that building, and that he ( defendant) would not pay out aity money without a certificate from Hamper; that he returned to Hamper and demanded certificates and did not get any.

Errors relied upon by plaintiff are:

(1) Because the court erred in holding that the defendant could not be made liable under the plaintiff’s proofs.
(2) Because the court erred in holding that Mr. Hamper, the architect, was not an agent with authority to bind defendant.

The liability of defendant in this case rests upon the authority of Kamper under the contract, or given by defendant to him. Upon this proposition the court charged the jury:

“There is nothing in that contract which authorized Mr. Kamper to direct the payment of money. All that Mr. Kamper has to do is to supervise the work and see that it is rightly done, and when it is done to his satisfaction then he issues a certificate upon which money might be paid. There is nothing anywhere except in this clause here which would carry any right on Mr. Kamper’s part to attempt to bind Mr. Blesch in the way it is claimed by the plaintiff in this case. So that Mr. Blesch would not be responsible for representations made by Mr. Kamper, if he made any, to the Michigan Lumber Yard.”

The authority delegated to the architect contained in the contract has been stated.' We agree with the trial court that there is nothing in it which would bind defendant by the representations upon which plaintiff relies, even if such representations have in all respects been of the character claimed by plaintiff, which is not necessary to be determined in this case. We think that the testimony in the case does not show that defendant ever intimated or gave plaintiff’s representatives to understand that Kamper had authority to bind him in any way by his statements or representations. All of the evidence agrees that no one on behalf of plaintiff saw defendant personally until after the February talk with Kamper. One witness testifies to calling defendant by telephone, and that he referred him to Kamper, but taking all of his testimony as true it is not sufficient to support the contention of plaintiff. The court concluded his consideration of this claim of plaintiff by charging the jury:

“ So that I say that, so far as any testimony here given by any of the Rosses (plaintiff’s representatives) upon whether or not Mr. Kamper had authority beyond that which was within the natural scope of his authority as an architect, it is not revealed; that is, I mean to say that the testimony does not reveal anything beyond that. Therefore no action can be held against Mr. Blesch upon these representations even if they were made.”

The learned circuit judge considered at length the character of the representations relied upon by plaintiff, and held that they, if true and authorized, were insufficient to create a liability. We find it unnecessary to consider them in the disposition of this case as the plaintiff cannot recover because of a want of authority on the part of Mr. Hamper to bind defendant.

The judgment is affirmed.

Ostrander, O. J., and Bird, Hooker, and Moore, JJ., concurred.


text:
    HARPER v. CORCORAN.
    1. Witnesses — Evidence — Statutes — Waiver —, Matters Equally Within Knowledge of Deceased — Estates of Decedents.
    By introducing in evidence, in a suit for an accounting, testimony of admissions made in the presence of a witness by the husband of decedent concerning her property in his hands, the representative of her estate did not waive the effect of the statute excluding testimony of a party in interest relating to matters equally within the knowledge of deceased (3 Comp. Daws, § 10212; Act No. 30, Pub. Acts 1903). In re Smith’s Appeal, 52 Mich. 419 (18 N. W. 195).
    2. Limitation of Actions — Equity—Pleading.
    The defense of the statute of limitations as a bar to a suit for accounting should be averred in the answer.
    3. Same — Fiduciary Relations — Husband and Wife.
    Where defendant was shown to have had in charge money and property of his wife for a period of years, his relation being that of a fiduciary, the defense that the cláim was barred by the statute was not available.

      4. Husband and Wife — Marriage—Validity.
    It was not a defense to a suit for an accounting for funds of the deceased wife in her husband’s hands that she had been married before her marriage to defendant, and that she had not been divorced and her first husband had not died, so that the second marriage was invalid.
    Appeal from Shiawassee; Miner, J.
    Submitted April 17, 1911.
    (Docket No. 79.)
    Decided July 5, 1911.
    Bill by Amasa A. Harper as administrator of the estate of Catherine Corcoran, deceased, for an accounting. From a decree for complainant for less than the amount claimed, both parties appeal.
    Modified and affirmed.

      Albert L. Chandler and George E. Pardee, for complainant.

      Odell Chapman and Neil R. Walsh, for defendant.
   McAlvay, J.

The complainant filed his bill as administrator against defendant for an accounting and an injunction restraining him from disposing of any property in his hands belonging to the estate of Catherine Corcoran, deceased. The theory of complainant was that defendant who had been married to deceased, and lived with her as her husband several years, had taken practically all of the property belonging to her, and refused to account for it to complainant. Deceased was an illiterate person, who could neither read nor write her name. She had some land, given to her by her uncle, which she sold for $1,712.50, September 17, 1901. Of this amount $112.50 was cash, $1,600 was represented by a certificate of deposit, dated September 17, 1901. This was surrendered, and a new certificate issued to deceased, and interest paid once or twice. On June 25, 1902, the certificate was surrendered and one issued to deceased for $850. The cashier testified that he presumed that the balance was paid in cash. The next year another certificate was issued to her for the same amount. It was renewed June 27, 1904. The history of this certificate until the last one was issued April 20, 1910, for $700, does not appear. This last certificate reads:

“ The State Savings Bank. No. 4176 Certificate of deposit. Not subject to check. Owosso, Mich., Apr. 20,[1910. Kate Corcoran has deposited in this bank, seven hundred ($700.00) dollars payable to the order of herself or husband Dennis, or survivor, on the return of this certificate properly endorsed.
Signed, “M. Miner,
“A. Cashier.”

This certificate is in the possession of defendant and is claimed by him.

Kate Corcoran died July 10, 1910. It is not disputed that deceased received this money for the land she sold. The testimony on the part of complainant showed a statement made by defendant to the nephew of deceased to the effect that, of the money received from the sale, part was in the bank and part was invested in the place where he lived; that he stated to the brother of deceased that she put part of her money in with him to buy a home in Owosso, and she had $700 in the bank in her own name; that defendant at first stated that he did not know that deceased was worth a dollar or had a dollar; that he did not claim that any gift was made to him by deceased. This statement was made by defendant to witness in the presence of complainant’s solicitor who had gone with him to find out what had become of his sister’s money. The solicitor testified to the same facts. Complainant and the solicitor also went to defendant for the same purpose, and the substance of their testimony is to the same effect. They had learned from the bank that there was a certificate of deposit of $700 outstanding in the name of deceased.

Defendant was permitted, over the objection of complainant, to testify relative to matters equally within the knowledge of deceased, giving all the facts relative to the disposition of this money, claiming that when the land was sold she gave him $750 as his wages for taking care of and working for her grantor, and that shortly before her death she gave him the certificate of deposit of $700. In his answer he denied that she was his lawful wife, and claimed that she had a husband living which was unknown to him before her death, and denied that he had ever received or used for his own purposes any money belonging to her.

The court granted a decree in favor of complainant, to the effect that defendant account for the $700 represented by the last certificate of deposit,, holding that he was not competent to testify as to matters equally within the knowledge of deceased, and, as to the other items, that the statute of limitations had run. Both parties have appealed.

Counsel for defendant insists that complainant had waived the inhibition of the statute by offering the testimony of witnesses, including himself, as to certain statements made by defendant relative to the estate of deceased. Reliance is placed upon Smith’s Appeal, 52 Mich. 419 (18 N. W. 195), and other decisions of this court which have followed that decision. The statements in the instant case shown to have been made by defendant were denials that he had received any of her estate, or knew that she had any property, and admissions that he had invested part of her money in the Owosso property, and that $700 was in the bank. If this case cannot be distinguished from the case relied upon, then defendant is entitled to a decree reversing the one appealed from, and to have the bill of complaint dismissed.

In Smith’s Appeal, supra, the court said:

“ Where a party whose testimony, if objected to, would be excluded under the provisions of the statute (2 How. Stat. § 7545) is giving testimony in a cause, and the opposite party calls out facts equally within the knowledge of the deceased, and afterwards seeks to prove the statements so made under oath in a controversy between the same parties, as admissions, he must be held to have waived the inhibition of the statute.”

This was a case where the claimant testified before the commissioners on claims, and the objectionable testimony was brought out by cross-examination, and on the trial in the circuit court, the estate produced the commissioners as witnesses, who were permitted to testify to what the claimant “ swore to before the commissioners in response to questions put to her by them,” and in the circuit court she was cross-examined at length as to this testimony given by her before the commissioners, and defendant then read all this testimony in evidence, which related exclusively to matters equally within the knowledge of deceased party.

In Beardslee v. Reeves, 76 Mich. 661 (43 N. W. 677), the facts are of the same character as in Smith’s Appeal, supra. The court said:

“ It would seem that upon the inquisition in the probate court the disability of the defendant to testify under this statute was waived by the plaintiff. But whether it was so or not, if any part of such examination was used by the plaintiff in the circuit court, the defendant was entitled to the whole of his testimony given on such examination, or such parts thereof as he deemed material.”

In Lilley v. Insurance Co., 92 Mich. 153 (52 N.W. 631), the testimony of the assignee of deceased, taken in probate court relative to ownership of the life insurance policy, was introduced by the administrator in the circuit court. The court held that the estate waived the provisions of the statute as to matters inquired into in probate court.

In Re Estate of Dunlap, 94 Mich. 11 (53 N. W. 788), a widow, administratrix, was called as a witness by the heirs in probate court, and examined fully as to the circumstances of the claimed gift to her by her deceased husband of certain notes. She was also called by them as a witness in the circuit court and testified upon the same matters. The court held that the disability had been waived.

In Michigan Sav. Bank v. Butler Estate, 98 Mich. 381 (57 N. W. 253), the court held that by cross-examining the witness the statute was waived.

The facts in Fox v. Barrett’s Estate, 117 Mich. 162 (75 N. W. 440), are similar to cases above cited, where the representative of a decedent, upon cross-examination of a survivor adversely interested relative to testimony given before the commissioners, brought out facts equally within the knowledge of deceased, and it was held that the statute was waived.

Mr. Justice Hooker, speaking for the court, said:

“ The statute in question was designed to protect estates, by excluding the testimony upon the subject known equally to the claimant and the deceased party. If, however, the representative of the deceased wishes, he may compel the living party to testify; but in that case he cannot prevent such party from giving a full explanation of the subject inquired about. Can he avoid this by relying upon his admissions to prove the contract ? In this case the defendant has not called the claimant as a witness nor has he interrogated him about the terms of the contract. He has ingeniously avoided it by asking him, not what the contract was, but what he had admitted it to be upon another occasion. This was to all intents and purposes requiring the witness to testify upon the subject, for manifestly he might have as well said to the jury that those statements were true, as to have said that he made them on a former trial when under oath. * * *
“The claimant had not attempted to give evidence about his relations with the deceased, or the subject-matter of the contract, presumably because it was not admissible under the statute. Had counsel for the estate sought to cross-examine him upon these subjects it would have been a waiver of the statute. It is contended, however, that they might show his admissions about the contract, and about his promise to marry the deceased. To do this by another witness might have been proper, but in such case they must have offered the testimony in defense, and subject to the right of cross-examination.”

This last case is the only one in this court wherein the court has made an intimation as to whether this statute would be waived in case statements, made by a survivor, not under oath, and not made during the course of any legal proceedings relative to the estate, were put in evidence on the part of the estate, and that intimation is strong that it would be no waiver.

In but one other case (In re Estate of Dunlap, supra) does it appear that other witnesses were sworn as to certain extrajudicial statements made by the survivor, and no reference to such testimony is made in the opinion. We think the distinction is very clear between the cases holding the statute to have been waived, and the instant case. We think those cases clearly were intended to hold that this statute is waived only when the party compels the survivor to testify relative to matters equally within the knowledge of the deceased. The opinion in Fox v. Barrett’s Estate, supra, in effect so holds.

In McHugh v. Dowd’s Estate, 86 Mich. 412 (49 N. W. 216), after the doctrine laid down in Smith’s Appeal, supra, that the statute is waived when the opposite party compels the survivor to testify, had been twice affirmed, this court held that an administrator could not waive the statute by allowing prohibited testimony to be introduced by a claimant without objection. The court said:

“ This ought not to have been permitted by the party representing the estate. * * * The statute was designed to protect the estates of deceased persons against claims which depend, in whole or in part, upon testimony of a party which cannot be refuted by the testimony of the deceased. To permit such party to testify would be a direct violation of the policy of the statute, and open the door to the perpetration of fraud against the estates of deceased persons, which it was the policy of the law to prohibit.”

This holding was approved in Ripley v. Seligman, 88 Mich. 188 (50 N. W. 143). It thus appears to have been the policy of the court not to extend a waiver beyond a state of facts covered by Smith’s Appeal, supra.

In the instant case complainant in investigating to ascertain what had become of the estate of his decedent was obeying the law, and he as well as the relatives had a right to make inquiry of defendant. The witnesses were produced and made proof of these statements. They were cross-examined at length, and defendant testified fully relative to his version as to what occurred. The testimony introduced by complainant was relevant and material, and its weight was for the consideration of the court. Our conclusion is that the court was correct in holding that the statute was not waived by complainant, and that the testimony of defendant was not admissible to show a gift to him of the certificate of deposit in question, and that this ruling should extend to all defendant’s testimony relative to facts which, if true, must have been equally within the knowledge of deceased.

In defendant’s answer under oath, he did not plead the statute of limitations, or make claims of gifts to him by deceased. He denied that any person named Kate Corcoran ever died in Shiawassee county. He denied all knowledge of any estate of deceased, except as to the certificate of deposit which he claimed belonged to him. In his answer he alleges that this suit was instituted against him by complainant and his solicitor on account of enmity against him. The only support to this charge is defendant’s testimony that complainant had once treated him meanly and he was unfriendly to him and his solicitor. The answer also sets up at length a charge of fraud on the part of deceased upon him in marrying him while she had a lawful husband living, which was not known to defendant. In support of this charge he produced the record of the marriage on July 15, 1876, and the man, who testified that, as a young man about 19 years old, a hired boy of her father’s, he was married to deceased; that she soon went back to New York State; that they never kept house and never lived together afterwards; that he was never divorced, for the reason that he was told the marriage was illegal because he was not of age. He had resided in Shiawassee county all his life of 52 years.

The complainant, who at one time had been judge of probate of Shiawassee county, appears to have done in this case only what was his legal duty as administrator in attempting to get possession of this estate. There is nothing in the record which reflects upon his conduct, or that of his solicitor.

The contradictions between the allegations of the sworn answer and much of defendant’s testimony cannot be harmonized. The willingness which he displays, in throwing discredit upon the woman with whom he lived for 15 years as his wife, without any apparent reason, except to give it publicity, does not appeal to us, when he at the same time is exerting himself to absorb all of her property. His facility in finding this man who had lived all his life in that county, and part of the time in his own city, while not conclusive of his knowledge of the former marriage of deceased, does not tend to strengthen belief in his denial. This paragraph of his answer were better left out. It reflects upon nobody other than defendant, and the proof under it does not affect the issue. The question is not whether she was his lawful wife, but whether he should account in this suit for property belonging to her estate.

We are satisfied that by a fair preponderance of the evidence it has been established that defendant has property in his possession and under his control belonging to the estate of Kate Corcoran. There is littie denial as to what he has received. The land of deceased was sold for the sum of $1,712.50; $1,600 was represented by one certificate of deposit. The balance was cash — $112.50. The purchaser paid the entire sum to defendant. The record discloses what became of the certificate. The balance is not accounted for.

From the proceeds of the certificate defendant received, September 20, 1902, $750, which he said he invested in the Owosso property, which was purchased by him at or about that date. The balance went into a new certificate of |850, which, after several renewals, was taken up, and one issued for $700, which is now in the possession of defendant. What he did with the difference does not appear. An accounting will doubtless disclose. Soon after the sale he also received, from the proceeds of the sale of 400 bushels of corn at 28 cents a bushel, $112.

The court below determined that the statute of limitations had run against all of these items except the certificate of deposit for $700. The statute of limitations has not been pleaded, nor is our attention called to the fact that it was invoked during the trial. While the law in this State is that equity will follow the law in the application of statutes of limitations, the rule is well settled that such statutes must be pleaded. In this case no such plea has been interposed, nor was any permission asked to allow an amendment for that purpose. The case was not heard in the lower court upon that theory, and in this court reliance was had by defendant upon the waiver of the statute, which made defendant a competent witness as to matters equally within the knowledge of deceased.

Nor do we think that the relations of these parties were such as would admit, under the circumstances, of the application of the statute of limitations. These were fiduciary relations, and defendant should account strictly for all property he has received, with legal interest, except upon the $700 represented by the last certificate of desposit. The decree of the circuit court will be modified, and a decree will be entered against defendant charging him with all the several items and amounts herein indicated, with interest, and the case will be remanded to the circuit court for the purpose of taking any material and competent evidence relative to proper disbursements made by defendant, chargeable against the estate of Kate Corcoran, and to determine the balance, or amount due said estate.

The item of $750 and interest will be made a lien against the Owosso property described in the deed from Josiah Deuch to defendant as lots 8, 9, and 12 in block 6, also out-lots 6, 7, and 8, all in Willow Spring Park addition to the city of Owosso, Shiawassee county, Mich., for the satisfaction of the amount thereof.

Complainant will recover costs of both courts against defendant.

Moore, Brooke, Blair, and Stone, JJ., concurred.


text:
    SMITH v. DURKEE.
    1. Contracts — Injunction—Construction and Interpretation —Evidence.
    Every word and phrase of a contract, so far as practicable, is to be given effect, and if there is a doubt as to the meaning, the situation of the parties, the subject-matter of the transaction and the acts, conduct and dealings of the parties may be considered in determining the meaning of any particular clause.
    3. Same — Good Will of Business — Restraining Competing Business.
    Under a contractnotto engage in business in the city of St. Johns, in competition with the business sold to complainant by defendant, and providing that defendant should not, for five years, carry on or be interested in any opposition thereto, or do anything to the prejudice thereof, defendant, whose business had included territory surrounding St. Johns, was rightly restrained from competing with complainant for five years in any territory within 30 miles of St. Johns.
    Appeal from Clinton; Searl, J.
    Submitted April 18, 1911.
    (Docket No. 61.)
    Decided July 5, 1911.
    Bill by Edwin M. Smith against Edward A. Durkee to restrain the violation of a contract. From a decree for complainant, defendant appealed.
    Affirmed.

      Walbridge & Kelley, for appellant.

      Lyon & Moinet, for appellee.
   McAlvay, J.

In this case the bill was filed by complainant against defendant to enjoin him from selling musical instruments, sewing machines, etc., and from carrying on or being interested in or connected with any such business, within the city of St. Johns and Clinton county and other territory, contrary to the terms of a certain contract between the parties, and for damages for violation of said contract. The court granted complainant relief, finding that defendant had violated the terms of the agreement, and enjoined him during the term of years provided for by the contract from in any manner engaging in said business within the city of St. Johns, and at any place within 20 miles thereof. The question of damages for the breach of the contract was reserved from the decree, and complainant was left to his right of action at law to recover the same. The contract referred to reads as follows:

“ This agreement, made the 18th day of February, in the year 1908, between Edward A. Durkee, of St. Johns, Michigan, and Edwin M. Smith, of St. Johns, Michigan. Witnesseth, that the said Edward A. Durkee, for the consideration hereinafter specified, agrees to sell to the said Edwin M. Smith, all the stock of general musical merchandise, consisting of pianos, organs, sewing machines, etc., according to a certain invoice made this day by Edward A. Durkee and Edwin Smith, belonging to the said Edward A. Durkee, and now being in the O. W. Munger store, building number six, Clinton Ave., occupied by him as a music store, and also all the interest and good will of the business heretofore carried on there by the said Edward A. Durkee. In consideration thereof the said Edwin M. Smith agrees to pay to the aforesaid Edward A. Durkee, upon delivery of said goods, etc., as full payment thereof the sum of thirteen hundred and thirty-seven ($1,337.00) dollars.
“And in further consideration of the premises, and of the payment by the said party of the second part, of the consideration hereinbefore expressed, and for the purpose of enabling the said party of the second part and his personal representatives to acquire and enter upon, conduct, continue, and carry on the aforesaid business of the said Edward A. Durkee, the said party of the first part hath for himself, his personal representatives and assigns, covenanted, granted, promised and agreed, and doth by these presents covenant, grant, promise and agree to and with the said party of the second part, his personal representatives and assigns, that from and after the execution of this agreement, he will not at any time for the period of five years from and after the date thereof, either alone or jointly with or as agent for or employé of any person or persons, firms or corporations, excepting only as agent for or employé of said party of the second part hereunto, his personal representatives or assigns, and either directly or indirectly set up, exercise, conduct or be engaged, employed or interested or carry on in the city of St. Johns, any occupation, interests, and privileges so heretofore exercised, conducted and carried on by said Edward A. Durkee, and so hereby sold and assigned, transferred, and set over to said party of the second part, nor set up, make, carry on or encourage, or be engaged or interested in any opposition to the said business so hereby sold, assigned, transferred, and set over, and so hereafter to be carried on by said party of the second part hereunto, his personal representatives and assigns, nor do anything to the prejudice thereof.
“ It is further agreed that said E. A. Durkee shall have the right to resell any goods he previously has sold and has to take back on forfeiture of contract of sale and he also reserves the right to sell one Ivers & Pond Piano.
“ In witness whereof, the said parties hereto have hereunto set their hands and seals, the day and year first above written.
“ In presence of:
[Signed] “Mrs. Nellie Metcalf.
[Signed] “ J. M. Hoxie.
[Signed] “ Edward A. Durkee. [Seal
[Signed] "Edwin M. Smith.” [Seal

Complainant paid the consideration according to agreement, took possession of the property, and entered upon the conduct of the business.

There is little dispute upon the facts in the case. It appears that the defendant who had represented before the sale, as an inducement to complainant to purchase, that his business extended throughout Clinton county and other counties, after such sale, paid no attention to the obligations of the contract and announced within a few weeks in the newspapers of St. Johns that he was a representative of a certain celebrated piano, and could furnish pianos slightly above factory prices, and continued such announcements for several months. He was actively engaged in the business of offering pianos for sale and soliciting purchasers in St. Johns and Clinton county. He displayed and demonstrated pianos at the county fair in St. Johns, and sent pianos out of the city to prospective purchasers. He attempted to avoid his contract by soliciting purchasers to make orders from the factory. The record shows a list of pianos sold by him in Clinton county outside the city of St. Johns. Defendant introduced no evidence in the case and in his brief admits a violation of the contract.

Defendant has appealed upon but one proposition, and that is that the court was in error in construing the contract to include territory outside the city of St. Johns in which defendant could not engage in this business or in any manner be connected therewith. Before this sale to complainant defendant was for several years engaged in this business. It was a business not confined to the city of St. Johns. It was carried on in the usual way such business is conducted in small towns. He had a salesroom and office in St. Johns where he kept the stock on hand and made sales. He also, as an itinerant solicitor and salesman, went out from St. Johns with a team or automobile carrying an instrument and solicited and made sales. He not only covered Clinton county, but also adjoining counties and represented to complainant that his business included Ingham, Gratiot, Ionia, and Shiawassee counties. He sold the property and good will of this business for cash. He had resided in St. Johns, and continued to reside there and conduct his business in practically the same manner he had conducted it before such sale. The paragraph of the contract which was construed by the court reads:

“And in further consideration of the premises, and of the payment by the said party of the second part, of the consideration hereinbefore expressed, and for the purpose of enabling the said party of the second part and his personal representatives to acquire and enter upon, conduct, continue, and carry on the aforesaid business of the said Edward A. Durkee, the said party of the first part hath for himself, his personal representatives and assigns, covenanted, granted, promised and agreed, and doth by these presents covenant, grant, promise and agree to and with the said party of the second part, his personal representatives and assigns, that from and after the execution of this agreement, he will not at any time for the period of five years from and after the date hereof, either alone or jointly with or as agent for or employé of any person or persons, firms or corporations, excepting only as agent for or employe of said party of the second part hereunto, his personal representatives or assigns, and either directly or indirectly set up, exercise, conduct or be engaged, employed or interested or carry on in the city of St. Johns, any occupation, interests and privileges so heretofore exercised, conducted and carried on by said Edward A. Durkee, and so hereby sold and assigned, transferred, and set over to said party of the second part, nor set up, make, carry on or encourage, or be engaged or interested in any opposition to the said business so hereby sold, assigned, transferred and set over, and so hereafter to be carried on by said party of the second part hereunto, his personal representatives and assigns, nor do anything to the prejudice thereof.”

This paragraph was the important part of this contract. It receivedmore attention than all the rest of the instrument. It covers more than one-half of the contract. We must conclude that the parties intended that it should express their intention relative to the restrictions it placed upon defendant in consideration of the purchase by the complainant and for his benefit, and, as in the construction of every contract, all of its terms and agreements, and every word and phrase should be given effect if practicable. Vary v. Shea, 36 Mich. 388; Plano Manfg. Co. v. Ellis, 68 Mich. 103 (35 N. W. 841), and cases cited; Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 280 (96 N. W. 468).

The parties have in terms stated that these stipulations are for the purpose of enabling complainant, his representatives and assigns “to acquire and enter upon, conduct, continue and carry on ” the business of defendant, who for himself and his representatives and assigns did “covenant, grant, promise, and agree” to refrain from doing certain things, viz.: That from and after the execution of the contract he would not at any time for the period of five years “ either alone or jointly with or as agent for or employé ” of any one except complainant, his assigns, and representatives, “ either directly or indirectly set up, exercise, conduct or be engaged, employed or interested or carry on in the city of St. J ohns any occupation, interests and privileges so heretofore exercised, conducted and carried on” by him and sold to complainant; “ nor set up, make, carry on or encourage, or be engaged or interested in any opposition to the said business so hereby sold, assigned, transferred and set over and so hereafter to be carried on by said party of the second part hereunto, his personal representatives and assigns, nor do anything to the prejudice thereof.”

Defendant’s contention is that this entire paragraph relates to the carrying on and being engaged in this business only within the limits of the city of St.- Johns for the term of five years. If this is correct the last portion just quoted is of no force or effect. It must be treated as if stricken out. Notwithstanding the fact, everything, and more than was absolutely necessary, had already been said to bind defendant not in any manner to engage in this business at that place. In the light of this record which shows the nature of the business, the way in which it was conducted, and the acts and dealings of the parties, may we say that this paragraph of the contract referred only to the city of St. J ohns ? Under the rule of construction already invoked we must give effect to every word and phrase of this contract if practicable. In Negaunee Iron Co. v. Iron Cliffs Co., supra, where the court affirmed that rule, it said:

" If there is a doubt as to the meaning, courts will consider the situation of the parties, the subject-matter of the transaction, the acts, conduct, and dealings of the parties in determining the meaning of any particular clause.”

It is contended by defendant that, in construing contracts in restraint of trade, the principle that no restraint may rest upon inference should not be overlooked. Not disputing that proposition, it is apparent to us that the construction urged by defendant rests upon an inference, and absolutely disregards a material portion of the contract. If this rejected portion is included, as it ■must be if practicable, the conclusion cannot be avoided that the agreement between the parties was that defendant was not to set up, make, carry on or be engaged in any opposition to the business sold and thereafter to be carried on by complainant “ nor do anything to the prejudice thereof” in the territory where it had formerly been carried on by him. It is apparent from the record and from facts of which this court may take judicial knowledge that, considering the dealings of the parties, the size of the small town of St. Johns where four concerns were competing for this business, and the populous agricultural community in the vicinity in which defendant conducted this business, that the sale of the business and its good will as expressed was not restricted to St. Johns. We agree with the construction of the circuit court, and consider the limits imposed just and reasonable.

The decree is affirmed, with costs to complainant.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    BANNIGAN v. WOODBURY.
    1. Negligence — Executors and Administrators — Highways and Streets.
    Evidence tending to show that a pane of glass that was broken and fell from a building upon a pedestrian in the street had been badly broken upwards of a week previously, and that one corner had been loose and shaking, made the question of negligence on the part of the administrator, having in charge the building, a question of fact.
    2. Same — Trial—Inspection—Charge to Jury.
    Although the trial court in his charge confused the duty to inspect premises under the agent’s control with the duty to repair after defects had become so notorious as to charge the agent with knowledge that the repairs were needed, it was not prejudicial error, in view of other instructions several times repeated to the jury that in order to charge defendant the defect must have existed for such a length of time that he ought to have discovered it.
    8. Same — Damages — Nervous Shook —Permanent Injuries — Evidence.
    The only evidence of permanent injury to plaintiff’s nervous system being that she might suffer pain permanently from the contraction of tissue upon the ends of nerves, it was error to permit the jury to find damages for permanent injury to her nervous system.
    4. Same — Condition after Injury.
    ■Testimony concerning the dilapidated condition of the windows on the day after the accident was competent.
    Error to Kalamazoo; Knappen, J.
    Submitted April 'll, 1911.
    (Docket No. 78.)
    Decided July 5, 1911.
    Case by Kathryn Bannigan against Edward Wood-bury, personally and as administrator of the estate of Jeremiah Woodbury, deceased. Daniel F. Altland as administrator of defendant was substituted as a party on defendant’s decease. Judgment for plaintiff. Defendant brings error.
    Reversed.

      A. M. & G. H. Stearns (D. F. Altland, of counsel), for appellant.

      Jackson & Fitzgerald, for appellee.
   Blair, J.

This suit is brought for the purpose of recovering damages for personal injuries claimed to have been occasioned by the negligence of Edward Woodbury. Since the case was tried in the court below, Mr. Wood-bury has died, and the case has been revived against D. E. Altland, administrator of Mr. Woodbury’s estate. It is the claim of the plaintiff that the injury occurred by reason of a piece of glass falling from a building located on one of the principal streets in the city of Kalamazoo and striking the plaintiff’s hat, and, glancing from the same, cut plaintiff’s cheek. This action was not brought against Mr. Woodbury as the owner of the property in question, but against him as agent having control of this property at the time the accident occurred. The case has previously been before this court upon demurrer to the declaration and the demurrer overruled. Bannigan v. Woodbury, 158 Mich. 206 (122 N. W. 531, 133 Am. St. Rep. 371). At the conclusion of plaintiff’s case, a motion was made by the attorneys for the defendant that a verdict be directed in his favor. This motion was denied. After the rendition of the verdict, a motion was made for a new trial, which was also denied, and to which exceptions were duly taken. Plaintiff recovered a verdict of $5,000, and defendant brings the record to this court for review upon writ of error. Counsel for defendant group their assignments of error under five heads, which we consider, so far as necessary to a disposition of the case, in their order.

The judgment of the court below should be reversed because there is no evidence in the case showing that this injury resulted from the negligence of defendant Edward Woodbury.

This proposition is predicated upon the testimony of a witness for plaintiff, who was the only person who saw the glass fall. She testified, in substance, that she saw the pane of glass fall from the third-story window.

“ I saw it a long time before that week. I saw that glass a good many times. I didn’t take particular notice until about a week before.
“Q. Why didn’t you take particular notice before that ?
“A. It was in there so bad it just kept cracking and breaking all the time.”

She had seen the broken glass shake in the wind—

“And I was afraid it would fall out. I first noticed that the week before, but it kept getting worse, kept breaking. That is correct. I don’t know how many days I noticed it during the last week. I couldn’t say. I noticed it that once, and every time I would go up in the window I would look at that glass and see how badl.y it was broken. * * * It was broken right in the center —in the very center of it.
“Q. Right straight across ?
“A. Yes; there was pieces out of the center falling out. You could stick your hand through.
“Q. There was a crack across the center ?
“A. No, sir; a hole in the center of the window you could put your hand through, and the glass all around that cracked.
“Q. A hole as big as your hand in the center of the window ?
“A. Yes, sir.
“Q. The glass was all cracked around that hole?
“A. Yes, sir; up on top and around the side, one corner was broken, that was the corner that fell, a large piece.
“Q. One corner of the glass was broken ?
“A. In that pane of glass.
“Q. So it looked as though some one had thrown a stone through it ?
“A. Yes, sir; that is the way it looked to me.
“Q. A base ball or something ?
“A. Yes, sir.”

The testimony of this witness tends to support the allegations of the second count of the declaration that the said defendant—

“ Allowed and permitted the said building and windows in the east end thereof to become out of repair, and to remain in a dilapidated, worn, and unsafe condition, in this, to wit: That on the east end on the third floor of said building were three windows; that the glass in said windows was cracked, broken, and insecurely fastened to the sash; * * * that it was great negligence * * * to permit and suffer said building and the windows therein and particularly the glass in said windows to remain in a dilapidated, worn, and unsafe condition, and to permit said glass to be left in said windows in the condition above set forth.”

The court erred in his charge to the jury upon the question of the duty resting upon the defendant to make inspection of the building in question.

The circuit judge charged the jury upon this subject as follows: That it was necessary for plaintiff to show—

“ That the cause of the glass falling was that the window had become out of repair in some way, so that the glass was loose and liable to fall, and that this, defect had existed for such a length of time that the defendant knew of it, or in the exercise of that care and prudence which a reasonably prudent person would have exercised under like circumstances he should have known it. * * * A man cannot close his eyes to conditions, and then excuse himself by claiming he did not know the conditions. If he could have known by a reasonable inspection, he is just as liable in an action for damages as he would be if he had actual knowledge. In other words, the term ‘ knowledge ’ or ‘ notice ’ may be either actual or constructive; that is, if the testimony had shown that Mr. Wood-bury had personally seen the defects complained of in the declaration, before the accident occurred, that would be what is called actual notice. If he did not do that, if the evidence is silent upon that point, if you do not find by a preponderance of the evidence that he did, it would be your duty to consider whether he had, what is termed in the law, ‘constructive notice;’ that is, whether the property had been in such a state of dilapidation as is alleged in the declaration, and that those defects had existed for such a length of time as would naturally have caused a reasonably prudent and careful person to have observed it. If he did not use such prudence and that reasonable care, he would be chargeable under the law with what is called in the law constructive notice, and would be just as liable, if you find that to be true, as though he had actually seen it.
If you find from the evidence that the defendant was in charge of and in control of this building, either as administrator of the estate of Jeremiah P. Woodbury or individually, and you find that this glass which struck and injured the plaintiff, if it did, came from one of the windows of this building, and that said window was out of repair and the glass was loose, insecurely fastened and broken, and that this defect had existed for a sufficient length of time so that the defendant could, or should, in the exercise of reasonable diligence, have discovered the ■defect, then the plaintiff would be entitled to recover.
“ In speaking of knowledge upon the part of the defendant in this case of the condition of this building necessary in order to make him liable, I do not necessarily mean ■actual knowledge. The law recognizes constructive knowledge as well as actual knowledge. And, if the defendant had constructive knowledge of the condition of the building, he would be just as chargeable with knowledge of the condition as he would be if he had actual knowledge. By 6 constructive knowledge ’ I mean this: That it is the duty of a person in charge of a building, located as the building in this case is, upon the public street, to make an inspection of the same, and if you find from the evidence in this case that the defendant could have found out the condition of the building by making a reasonable inspection of it — that is, such an inspection as a reasonably prudent person would have made, under like ■circumstances — then he would be just as chargeable with knowledge of the condition of the building as he would be if he had actual knowledge.”

The judge repeatedly instructed the jury, in accordance with the theory of the declaration, that the defects must have existed a sufficient length of time to charge defendant with notice of them, and his last instruction was as follows:

“You will retire to your jury room and take up these propositions, I would suggest in the following order: * * * (3) Whether or not the cause of the glass falling was that the window had become out of repair in .some way so that the glass was loose and liable to fall. Then whether this defect had existed for such a length of time that the defendant knew of it, or in the exercise of that care and prudence that a reasonably prudent person would have exercised, in like circumstances, he should have known.”

It was held when the case was here on demurrer that, if the defendant was lawfully in the possession of the building, “it would be his duty to keep it in a safe condition, so as to protect travelers along the streets. We think this duty on the part of defendant required of him the making of a reasonable inspection from time to time to ascertain its condition. Connolly v. Investment Co., 130 Iowa, 633 (105 N. W. 400). The declaration, however, does not allege a duty of inspection or a failure to perform that duty, but proceeds upon the theory that the defendant negligently permitted the windows to get out of repair, and with knowledge, actual or constructive, of their condition, permitted them to remain out of repair. The court appears to have somewhat confused the duty of inspection to ascertain whether repairs were required with the duty to repair after defects have become so notorious as to charge a person with knowledge that repairs are needed. The brief does not, however, rest the argument upon the form of the declaration, but upon the general ground that an agent in charge of property is only liable for defects of which he has either actual or constructive knowledge, contending that the case is ruled by the case of Thomas v. City of Flint, 123 Mich. 10 (81 N. W. 936, 47 L. R. A. 499). Except for the form of the declaration, that case would have no application, and, in view of the repeated instructions of the court that the defect must have existed for such a length of time that the defendant ought to have discovered it, we do not think there was prejudicial error.

(&). The court erred upon the question of future damages in charging the jury as follows: “If you find the plaintiff in this case is entitled to recover, she is entitled to recover all damages which she has suffered up to this time, and also for all damages which it is reasonably probable she will sustain in the future, not exceeding in all the amount claimed in the declaration, $15,000.”

Assignment of error No. 31.

The court also in various portions of his charge submitted to the jury the question as to whether or not the plaintiff was permanently injured, and especially whether her nervous system was permanently impaired. See Assignments of error 28, 29, 30, 31. The court charged the jury, amongst other things, in part as follows:

"The plaintiff also claims damages for physical pain and suffering and a nervous shock, both temporary and permanent, and with reference to such damages I instruct you that in the very nature of things these are elements of damage which are not susceptible of any exact computation. It is for the jury to determine the amount as their best, candid, and careful judgment should dictate. It is a power of necessity resting somewhere, and the law wisely gives that power to the jury to act upon their deliberate, conscientious judgment in determining what would be a fair compensation for the injury sustained. * 6=
" If you find the plaintiff in this case js entitled to recover, she is entitled to recover all damages which she has suffered up to this time, and also for all damages which it is reasonably probable she will sustain in the future, not exceeding in all the amount claimed in the declaration, $15,000. * * * The injured party, when entitled to recover, should be awarded compensation for all injuries past and prospective, and these are intended to include and embrace indemnity for loss of time, if the plaintiff has lost any time thereby, for such expenses as she was put to and was personally liable for, also for all suffering, pain, loss of blood, inconvenience, humiliation, mental anguish, shock to the nervous system, disfigurement or permanent annoyance from the injury, provided these things are shown to be the result of the injury,” etc.

We do not think there was sufficient evidence as to permanent "shock to the nervous system” to warrant submitting the question to the jury. While the testimony may have warranted the submission of the question whether plaintiff would not suffer pain permanently from the contraction of tissue upon the ends of the nerves, we do not think it authorized an inference of permanent injury to the nervous system. The verdict was very liberal, and we cannot say that the element of prospective damages for permanent injury to the nervous system did not have an important influence upon the verdict.

The court erred in permitting testimony by various witnesses showing the condition of the window in question after the accident occurred, and also in permitting testimony upon the condition of other windows on the third floor of the building in question.

These witnesses testified to the dilapidated condition of the windows the day after the accident, and their testimony was plainly competent. Williams v. City of Lansing, 152 Mich. 169 (115 N. W. 961). In view of the conclusion we have reached, it is unnecessary to consider the question of excessive verdict.

The judgment is reversed, and a new trial ordered.

Ostrander, 0. J., and Bird, Hooker, and Stone, JJ., concurred.


text:
    HAYNES v. MAYBURY.
    1. Landlord and Tenant — Negligence—Lease—Repairs.
    The rule that a landlord, in the absence of an agreement to repair leased premises, is not liable for damages to the tenant’s property caused by defective plumbing, although he subsequently, without consideration, promises to make repairs, is not applicable to a case where the lease contained a covenant of the lessor to repair.

      3. Same — Trial—Directing Verdict — Opening Statement.
    After having decided to direct a verdict on the opening statement of plaintiff’s attorney, and having reconsidered the ruling at the suggestion of defendant’s counsel that it would be well to take plaintiff’s testimony, the court should not direct the verdict for defendant at the close of the cross-examination of plaintiff.
    8. Same.
    Before directing a verdict on plaintiff’s opening, the court should inform his counsel wherein he has failed to state a case.
    4. Same.
    And although plaintiff’s statement and testimony failed to show that he was free from contributory negligence, he was entitled to be advised of that claim if the verdict was directed for such reason.
    Error to Wayne; Donovan, J.
    Submitted April 13, 1911.
    (Docket No. 104.)
    Decided July 5, 1911.
    Case in justice’s court by John E. Haynes against William H. Maybury for damages to personal property and for personal injuries. Defendant appealed to the circuit court from a judgment for plaintiff. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Philip A. McHugh and William Henry Gallagher, for appellant.

      George F. & Peter J. Monaghan, for appellee.
   Blair, J.

This suit was commenced in justice’s court. The declaration was on the case to recover damages against plaintiff’s landlord, who had agreed to make necessary repairs, setting up, among other things, that, after occupying the premises several months, plaintiff discovered that the plumbing in the cellar was out of repair, of which fact he gave notice to defendant.

“ Plaintiff further avers that the cellar in said dwelling house became more unsanitary hour by hour after the giving of said notice to said defendant, his agents, and servants. Stagnant water did gradually then and there accumulate on the floor of said cellar until a depth of about 10 inches was attained, then and there causing many and divers noisome, noxious, poisonous, malarial, offensive, and unwholesome smells, vapors, diseases, and stenches to permeate the entire cellar and other parts and portions of said dwelling house, causing plaintiff’s aforesaid vegetables to become utterly ruined and destroyed.
“Plaintiff further avers that said defendant, his agents and servants, well knowing the premises as aforesaid, did wickedly, wantonly, wrongfully, and cruelly neglect and refuse to remedy the defective and unsanitary condition of said cellar, although often requested by plaintiff and the members of plaintiff’s family and certain other occupants of plaintiff’s household so to do.”

In the opening statement to the jury counsel stated the case in substance as follows: After stating the terms of the lease, including an agreement on the part of the lessor to keep the place in reasonable repair during the term, the occupancy thereof by plaintiff from August 1, 1909, until the middle of November following and the discovery on November 10th that water was backing up into the cellar—

“ The evidence will show that he then went next door, where Mr. Maybury lived, and attempted to convey this fact to a Mrs. Burkery, a sister of the defendant and his agent in charge of the premises. She was not at home, but the facts were given to her daughter to tell to her. Later on in the afternoon Mrs. Haynes called her by phone, and again told her of the fact. Nothing had been done the next morning and Mrs. Haynes again called up, and called up several times during the day. That was on Thursday, November 11th. On the same day Mr. Haynes chanced to meet Mr. Maybury, and he told him of the condition of the cellar, and Mr. Maybury said that he would see that it was fixed.
“ Once the water started backing into the cellar, it continued to do so until there were some 12, 16, or 18 inches of it there. Mr. and Mrs. Haynes telephoned to Mr. Maybury.and his agent, Mrs. Burkery, every day, and several times each day on Wednesday, Thursday, and Friday. Still nothing was done to remedy the conditions existing there. On Friday Mr. Haynes complained to the health board, and they sent an inspector there, who said it would have to be fixed at once. Nothing was done until the following Monday, and at that time one man came to do the work, and he worked there on Tuesday, Wednesday, and Thursday, or a portion of those days, and eventually succeeded in getting the water out of the cellar. After the water was removed, it left a dirty scum around the cellar walls and on the cellar floor, and on everything in the cellar. And as a result of the water being there and running away the vegetables stored there began to rot. Mr. Haynes had a large quantity of vegetables there which he had bought for winter use, about $50 worth in all, all of which was submerged in and was floating around in the water, and began to decay afterwards. The water to which I have referred was sewer water, dirty and foul, and gave off a dirty, sickening, and disgusting odor. This odor remained in the house until the plaintiff moved. Not only the cellar, but the whole house, was filled with the odor that arose from that scum on the walls.
“ The evidence will show that there was no one in the house that escaped without some sickness. One was affected in one way and one in another. People that were rooming in the house left, and the Hayneses were notified by the board of health that they ought to move, as the place was not fit to live in. And they did move on the second Saturday following the day on which they were notified they ought to move. After being notified of the condition of the premises, the defendant and his agent made no protest that they were not liable for the remedying of those conditions, but gave promise after promise that they would see that they were remedied. And they did send a man there on Friday. He came and looked at the place, and let it go at that, and on Monday some one came and commenced to do some digging with a view to remedying the conditions existing there. The evidence will indicate that as a result of this condition plaintiff was obliged to move and did move before the term for which he had paid had expired. He had paid for the month of November, and moved out on the 22d of that month. ' He lost several days of work while moving. He was obliged to and did pay out money for physician’s services for himself and his wife. And, when we have proven all of these facts, we will ask at your hands a verdiet for the plaintiff for such an amount as will properly compensate him for the damages he has sustained.”

Immediately upon the conclusion of the statement, the court announced that in his opinion the case was governed by Rhoades v. Seidel, 139 Mich. 608 (102 N. W. 1025), and the following occurred:

“The Court: The clerk will take a verdict of no cause of action.
“Mr. Monaghan: In order to save any question, so that, if Mr. Gallagher desires to appeal upon the proposition, I would suggest that the plaintiff be allowed to introduce the testimony of the plaintiff, upon the proposition, and let it go at that.
“Mr. Gallagher: I am satisfied, if the court is satisfied, to have a verdict directed upon my opening statement, hut I do not want to be considered as acquiescing in it.
“The Court: I did not hear all of the opening statement and I would rather you would put on your plaintiff if yo.u desire.”

At the close of plaintiff’s cross-examination the following occurred:

“Mr. Monaghan: That is all, I just wanted to get that matter into the record.
“The Court: I have not changed my mind one particle about this case.”

And thereupon, on motion of defendant’s counsel, the court directed a verdict for defendant.

It is plain that the case of Rhoades v. Seidel, where there was no original agreement to repair and the subsequent agreement was not supported by any consideration, does not rule this case. It is equally plain that after defendant’s counsel had induced the court to take the plaintiff’s testimony, and had drawn out such testimony on cross-examination as he thought would strengthen his case, a verdict was directed without affording plaintiff, who had not rested his case, an opportunity to call other witnesses to sustain his case.

After reconsidering his order to the clerk to take the verdict upon the opening statement and entering upon the trial, the plaintiff should have been permitted to call witnesses, if he chose, to cover phases of his case not covered by his own testimony.

Furthermore, we are of the opinion that, before directing a verdict upon an opening statement, the counsel should be informed as to the points in which he has failed to state a case. He was informed in this case substantially that he had no case because the defendant was not liable for a negligent failure to repair upon the authority of Rhoades v. Seidel.

There was nothing to indicate to plaintiff’s counsel, except as indicated by the cross-examination and the motion of defendant’s counsel after the case had been taken out of his hands, that there was any other basis for the direction of the verdict than that originally announced by the court, and, so far as the record discloses, that was the ground of the court’s final action. Prima facie, the statement made out a case of negligence against defendant which entitled the plaintiff to put in his proofs, and doubtless, if his attention had been called to the fact that he had failed to state that he expected to prove that plaintiff was free from contributory negligence, he would have covered that subject in his statement. We do not think that the plaintiff had a fair trial, and, although it would appear from this record that the result was not far out of the way, plaintiff should have an opportunity to present his ease as a whole. We think he has been erroneously deprived of this opportunity. The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Hooker, and Stone, JJ., concurred.


text:
    GENERAL CONFERENCE ASSOCIATION OF THE SEVENTH DAY ADVENTISTS v. MICHIGAN SANITARIUM & BENEVOLENT ASSOCIATION.
    1. Executors and Administrators — Foreign Administrators— Estates of Decedents — Bills and Notes — Assignments—Authority to Sue — Actions.
    The holder in due course of notes payable to a deceased person indorsed by the executor or administrator, decedent being domiciled in a foreign country where the estate is being administered, may institute suit thereon against the maker, a corporation, having its principal place of business in Michigan.
    2. Wills — Evidence—Proof of Foreign Records — Judgment.
    A copy of a will admitted to probate in a foreign State, with a copy of the order of the court admitting the instrument to probate, certified by the officer having the custody of the records, under the seal of the court, is entitled to be received in evidence under Act No. 191, Pub. Acts 1909, and 8 Comp. Laws, §§ 10144-10147.
    3. Same —Evidence —Private International Law.
    Sufficient proof of the right of the widow of a deceased person residing in the Province of Quebeo, Ganada, to assign notes payable to the decedent is offered by the introduction of tes- ' timony of a practicing attorney in Quebec that he is familiar with the administration of estates and the law governing the same in Quebec, that the statutes in force were certain sections of the civil code, offered in evidence, and that under the law of Canada where the widow became the universal legatee as provided by the will of deceased, and unless another executor was named she was entitled to act as such, had title to the property; and that she had authority as executor to indorse notes due to decedent.
    4. Same — Authentication of Records.
    A certificate of the probate register that certain orders were entered by the probate court of a foreign State, without showing a copy of the order, is not a compliance with the statute.
    5. Same — Parol Evidence — Best Evidence Rule — Records.
    Parol testimony is not admissible to prove the granting of letters of administration by a court, but the records only are competent.

      6. Same — Evidence.
    Where evidence objected to by defendant was admitted on the trial, but if it had been rejected no competent evidence remained showing any defense to the prima fade case that plaintiffs testimony presented, prejudicial error did not result from the reception of the evidence.
    7. Bills and Notes — Delivery—Parties Plaintiff.
    Delivery to a holder in due course of a note being presumed under the negotiable instruments law (Act No. 265, Pub. Aotsl905), which authorizes the holder to sue in his own name, and provides that he shall be deemed prima fade a holder in due course, the indorsee who has received payments on the note from the maker may bring action in his own name.
    Case-made from Calhoun; North, J.
    Submitted April 13, 1911.
    (Docket No. 133.)
    Decided July 5, 1911.
    Assumpsit by the General Conference Association of the Seventh Day Adventists against the Michigan Sanitarium & Benevolent Association on certain promissory notes. A judgment for plaintiff is reviewed by defendant on case-made.
    Affirmed.

      Jesse Arthur, for appellant.

      W. S. Powers, for appellee.
   Blair, J.

This action is founded upon seven promissory notes, all executed by defendant at Battle Creek, Mich.; one payable direct to plaintiff; three payable to Mrs. A. D. Hutchins, and assigned to the plaintiff by T. H. Purdon, as the administrator of the estate of Mrs. A. D. Hutchins, deceased, purporting to have been appointed and qualified as such administrator by the probate court of Orleans district, State of Vermont, the residence of Mrs. Hutchins at the time of her death; and three others payable to Philip E. Buffer and assigned to plaintiff by Lucy M. Buffer, as administratrix with the will annexed of the estate of Philip E. Buffer, deceased, purporting to have been appointed and qualified as such administratrix by the superior court of the Province of Quebec, Canada, district of Bedford, the residence of said Philip E. Ruiter at the time of his death.. Defendant pleaded the general issue.

No question is made to plaintiff’s right to recover on the first of above-mentioned notes. In the case of the other six notes, three questions are presented for the consideration of the court:

First. As to the admissibility and sufficiency of the proof to establish the appointment and qualification of T. H. Purdon as administrator of the estate of Mrs. A. D. Hutchins, deceased, and the admissibility and sufficiency of the proof to establish the probate of the will of Philip E. Ruiter, deceased, and the appointment and qualification of Lucy M. Ruiter as administratrix with the will annexed of his estate thereunder.
Second. As to the right of plaintiff to maintain an action on said notes in this State under the said assignments from said T. H. Purdon and said Lucy M. Ruiter as said foreign administrator and said foreign administratrix, respectively.
Third. As to payments made by defendant of interest on both the Hutchins and Ruiter notes operating in the nature of an estoppel to prevent defendant questioning plaintiff’s title to said notes.

In our opinion, the better rule, and the one supported by the preponderance of authority, sustains the right of plaintiff to maintain this suit, if the assignments were properly proved. Knapp v. Lee, 42 Mich. 41 (3 N. W. 244); Schluter v. Savings Bank, 117 N. Y. 125 (22 N. E. 572, 5 L. R. A. 541, 15 Am. St. Rep. 494); McCully v. Cooper, 114 Cal. 258 (46 Pac. 82, 35 L. R. A. 492, 55 Am. St. Rep. 66); Wilkins v. Ellett, 108 U. S. 256 (2 Sup. Ct. 641); Owen v. Moody, 29 Miss. 79; Campbell v. Brown, 64 Iowa, 425 (20 N. W. 745, 52 Am. Rep. 446); 7 Cyc. p. 786. This point was not determined in Reynolds v. McMullen, 55 Mich. 568 (22 N. W. 41, 54 Am. Rep. 386), upon which defendant relies to some extent. So far as the question is discussed in the majority opinion, it supports the rule above stated. See page 575 of 55 Mich. (22 N. W. 41, 54 Am. Rep. 386).

Were the assignments properly proved ?

The plaintiff offered in evidence a certified statement of the appointment of Thomas H. Purdon as administrator of the estate of Abbie D. Hutchins, which appointment was made by the probate judge of Orleans district, in the State of Vermont. The plaintiff also offered in evidence the deposition of Thomas H. Purdon, taken in the State of Vermont, in which he testified that he was a resident of Rutland, State of Vermont, and that he knew Mrs. A. D. Hutchins in her lifetime and her full name was Abbie D. Hutchins; that she died at Irasburg, Orleans county, Vt., April 26, 1902; and that he was appointed administrator of her estate by the probate court for the district of Orleans county, at Newport, in May, 1902; that the indorsement : “Pay to the order of the General Conference Association of the S. D. Adventists. T. H. Purdon, administrator of the estate of Mrs. A. D. Hutchins ” — which appears upon each of the notes Nos. 260, 116, and 113 was in his handwriting, was made upon said notes, and they were delivered to the plaintiff by him the last of September, 1902, for the purpose of transferring the ownership of the notes to the plaintiff.

He further testified that he was the administrator of the estate of Mrs. A. D. Hutchins when said indorsements, transfer, and delivery of the notes were made; that the estate of Mrs. A. D. Hutchins had no ownership in these notes, and they belonged to the plaintiff.

The plaintiff read in evidence the deposition of Lucy M. Ruiter, in which she testified that she was the widow of P. E. Ruiter, whose full name was Philip E. Ruiter, and that she resided in the district of Bedford, Province of Quebec, and that her husband before his death made the following will:

“ Sweetsburg, P. Q., Feb. 9, 1899.
“ I give the farm and stock to Vina and Delmer. All the remainder, real and personal, mortgages, notes, etc., to my wife Lucy to do with as she thinks proper and right.
[Signed] “ Philip E. Ruiter. “Witnessed: John Hammond.
Loring Marsh.”

That she was the person mentioned in said will as “my wife Lucy,” and by said will she was created the universal legatee of Philip E. Ruiter, and thereby became vested with the administration of his estate, and that she acted as such administratrix in the settlement of her husband’s estate.

She further testified that she indorsed notes Nos. 168, 140, and 157 on the 31st day of January, 1900, and on that date delivered them to the plaintiff. That the indorsements on each of the notes: “ Pay the within note to the General Conference Association of the Seventh Day Adventists. Dated January 31st, 1900. Lucy M. Ruiter, administratrix with the will annexed of Philip E. Ruiter, deceased ” — were all in her handwriting, made by her as heir at law and universal legatee of her deceased husband. That the estate had been fully settled and closed, and there were no unpaid debts against said estate at the time these notes were indorsed, transferred, and delivered by her to the plaintiff. That said notes were indorsed and delivered to the plaintiff by her for the purpose of transferring the title to each of said notes to the plaintiff, and that neither she, as universal legatee, nor the estate of her deceased husband, had any interest or ownership in said notes.

The plaintiff also offered in evidence a certified copy of the probate or proving of said will of Philip E. Ruiter in the superior court, district of Bedford, and Province of Quebec; and that said will was duly proved and established in said court on the 16th day of March, 1899.

The plaintiff further offered in evidence the deposition of W. H. Lynch, who testified that he was an advocate and resided in the village of Sweetsburg, district of Bed-ford, and Province of Quebec, and that he had practiced his profession continuously since October, 1899; that he was familiar with and knew the law and practice of the courts of the Province of Quebec, Canada, in relation to the proof of wills, appointment of executors, and the settlement of estates under wills of deceased persons, and that the statutes in force governing this branch of the law are known as the “Civil Code” of Lower Canada, and are to be found in Article 905, on page 140, and Article 924, on pages 144 and 145, of said Civil Code. He further testified that in cases like the will of Philip E. Ruiter the courts of Lower Canada do not appoint an executor, as the universal legatee is by law seised of the ownership of the property from the moment of the death of the testator, and is entitled to act as executor if no executor is named in the will; that, under the law and practice and the decisions of the courts of Lower Canada, Lucy M. Ruiter was authorized to act as executor of her said deceased husband’s will, and that, under the practice and decisions of the courts of Lower Canada, an executor has authority to indorse promissory notes belonging to the estate when said notes are payable to the order of the deceased person, and to transfer the title and ownership of said notes by such indorsement.

The plaintiff further offered in evidence the Civil Code of Lower Canada, printed by authority, containing Article 905, found on page 140, and Article 924, found on pages 144 and 145, of said Civil Code.

All of this testimony was admitted against the objection of defendant’s counsel and exceptions taken thereto, upon the grounds that it was incompetent to prove the appointment or qualifications of an administrator or executor by parol (citing Albright v. Cobb, 30 Mich. 355), and that the certified copies of the probate records, etc., are inadmissible because not in conformity with sections 10144-10147, 3 Comp. Laws.

The proofs of the probate of the will of Philip E. Ruiter were sufficient to authorize its reception in evidence under section 10145, 3 Comp. Laws, as amended by Act No. 191, Pub. Acts 1909.

The testimony of the Canadian advocate and the articles of the Code were sufficient proof of the authority of Mrs. Ruiter to act as executrix of her husband’s will and of the fact that she became the absolute owner of the notes under the will, and could dispose of them as she saw fit.

The official proofs of the appointment of Thomas H. Purdon as administrator of the estate of Abbie D. Hutch-ins, deceased, do not comply with the statute. The probate register does not set forth a copy of the order of the court certified by him, but certifies to what the.court did, “as appears by the records and files of said probate court.”

Parol testimony is not admissible to prove the granting of letters of administration by a court, but the fact must be proved by the record. Albright v. Cobb, supra.

The Hutchins notes were indorsed to the plaintiff in 1902, and from that time defendant made payments of interest and principal direct to plaintiff, down to November 16, 1906.

If the testimony objected to by defendant had been stricken out, there would have been no evidence to impeach the plaintiff’s right of action, and the indorsement on the notes to plaintiff and of the payments by defendant, with the testimony of one of defendant’s officers that they had been made as indorsed, would have made a prima facie case for plaintiff, entitling him to recover. Act No. 265, Pub. Acts 1905, §§ 18, 53, 61.

We are, therefore, of the opinion that the receiving of the testimony did not prejudice defendant’s rights, and the judgment is affirmed.

Ostrander, O. J., and Bird, Hooker, and Stone, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE v. SWENSON.
    Appeal and Error — Federal Practice — Judgment—Finality-Exceptions Before Sentence.
    Since the Federal practice requires that sentence be pronounced in order that the judgment may be final for review on writ of error to the Supreme Court of the United States, a judgment of the lower court after the decision on exceptions before sentence heretofore reviewed in People v. Swenson, 162 Mich. 397, is affirmed; but it is held that in Michigan a judgment on exceptions before sentence entered in the Supreme Court is final.
    Error to Houghton; Streeter, J.
    Submitted April 20, 1911.
    (Docket No. 121.)
    Decided July 5, 1911.
    Theodore Swenson was convicted of violating the liquor law and, after affirmance on exceptions before sentence, was sentenced to pay a fine or be committed to the county jail.
    Affirmed.

      Burritt & Burritt and James T. Drought (Lawrence Maxwell and Joseph S. Gray don, of counsel), for appellant.

      Franz C. Kuhn, Attorney General, and William J. McDonald', Prosecuting Attorney (Arthur P. Hicks, of counsel), for the people.
   Brooke, J.

This case has been once reviewed by this court, upon exceptions before sentence, and will be found reported at 162 Mich. 397 (127 N. W. 302). Respondent, having been duly sentenced, has now removed his case to this court by writ of error. His avowed purpose in again bringing the matter to the attention of the court is to obtain a judgment of the court of last resort in this State, to the end that (if unfavorable to respondent) he may apply to the Supreme Court of the United States for a writ of error.

We are of opinion that it was unnecessary for respondent to sue out a writ of error after the case had been finally decided upon exceptions before sentence. From a perusal of the opinion in Lyng v. Michigan, 135 U. S. 161 (10 Sup. Ct. 725), it would appear that that course was there followed, though we have been unable to find that the case was again before this court after sentence. Upon exceptions before sentence it was reviewed, and the conviction affirmed. People v. Lyng, 74 Mich. 579 (42 N. W. 139). A different course was obviously followed in Reetz v. Michigan, 188 U. S. 505 (23 Sup. Ct. 390). See People v. Reetz, 127 Mich. 87 (86 N. W. 396).

Under our practice the affirmance of a conviction before sentence is a final adjudication of the case. Nothing remains for the trial court to do but to impose sentence. We note, however, that in Congdon v. Michigan, 200 U. S. 612 (26 Sup. Ct. 753), (see People v. Congdon, 137 Mich. 133 [100 N. W. 266]), the Supreme Court dismissed the case for the want of jurisdiction, and an examination of the cases there cited (Schlosser v. Hemphill, 198 U. S. 173 [25 Sup. Ct. 654], and Haseltine v. Central Nat. Bank, 183 U. S. 130 [22 Sup. Ct. 49]) would seem to indicate that the court proceeded upon the assumption that a judgment of this court, affirming a conviction before sentence, was not a final judgment. While, as before indicated, we cannot accept this view, we feel constrained in the present instance to affirm the judgment after sentence, in order that respondent’s right to have his case reviewed by the Supreme Court of the United States may not be imperiled through a holding by that court that it was without jurisdiction.

The judgment is affirmed.

Moore, McAlvay, Blair, and Stone, JJ., concurred.