author: Blair, J.

text:
    DETROIT SOUTHERN RAILROAD CO. v. MALCOMSON.
    1. Sales — Contracts—Construction—Passing Title.
    A contract, by which a coal company agrees to furnish a dealer all the coal that may be required by the latter for the use of an illuminating company “of Detroit,” for certain purposes, at “the following prices, f. o. b. Michigan Central Railroad, viz., ’’etc., requires the delivery of the coal on the track of such railroad company at Detroit, and, under it, title to coal shipped does not pass to the dealer until its arrival at the designated point.
    2. Same.
    Postal cards sent by the coal company to the dealer reading: “In our office. We ship this day on your account,” followed by the numbers of the cars, number of tons, the grade, the route, and the words: “Remarks — Weight to follow,” etc.,'signed by the coal company, are not inconsistent with a construction of the contract that it requires delivery on the tracks of the railroad company at Detroit, such cards being mere notices to defendant that the coal company, in accordance with the contract, shipped the coal for delivery to defendant, free on board the cars at Detroit.
    Error to Wayne; Hosmer, J.
    Submitted January 10, 1906.
    (Docket No. 50.)
    Decided May 24, 1906.
    Assumpsit by the Detroit Southern Railroad Company against Alexander Y. Malcomson for freight charges. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Anderson & Backham, for appellant.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for appellee.
   Blair, J.

Plaintiff sued defendant for the freight upon certain cars of coal shipped to defendant over plaintiff’s railroad by the Superior Coal Company, of Wellston, Ohio, under a contract containing the following clauses:

“Contract with Dealers.

“Made at Detroit, this 1st day of July, 1901, between the Superior Coal Co., Wellston, O., the first party, and A. Y. Malcomson, of Detroit, Mich., the second party.

“ Said first party agrees to furnish all the coal that may be required by said second party, for the use of The Edison Illuminating Co., of Detroit (with whom the said second party has annual contract), for steam or manufacturing purposes, until the 30th day of June, 1902, at the following prices f. o. b. Mich. Cent. R. R., viz.

“From July 1st, 1901, until June 30th, 1902. * * *

“ Mine run, per ton, |2.05 net. * * *

“The said second party agrees to purchase from said first party all the mine run coal they may require for the purpose aforesaid, until said 30th day of June, 1902, and to pay for same on or before the 25th day of each month for all coal shipped during the previous month. Mine weights to govern settlements.”

Defendant having given notice of set-off, based, among other things, upon the confiscation by plaintiff of numerous cars of coal shipped under said contract, before they arrived at the Michigan Central Railroad tracks, waived the benefit of his plea of the general issue, admitted the plaintiff’s claim, and assumed the affirmative of the issue upon his notice of set-off. The court held that defendant’s contract provided for a delivery of the coal on the Michigan Central tracks at Detroit, and that the coal having been confiscated before it was so delivered, he had no title thereto, and could not recover for its loss. In accordance with this view of the contract, a verdict was directed for plaintiff.

Defendant contends that the court erred in his construction of the contract; that while the letters, f. o. b., usually import delivery at the point designated, it is apparent that, in the contract in question, delivery of the coal to the plaintiff railroad company was intended by the parties to be a delivery to the defendant, and it is said:

“ There are two features in this contract strongly indicating this intention: First. ‘Mine weights to govern settlement.’ This language means that defendant had to pay the Superior Coal Company for this coal on the basis of the weights of the coal at the mines where it was delivered on cars for transportation to defendant. * * * Second. The contract provides :

“ ‘Said second party agrees to purchase from said first party all mine run coal * * * and to pay for same on or before the 35th day of each month for all coal shipped during the previous month.’

“The words, ‘for all coal shipped during previous month’ are also significant, we contend, in that they plainly show when the parties to the contract themselves regarded the responsibility of the Superior Coal Company for the coal shipped under it at an end, and that shipment and delivery by the Superior Coal Company to defendant were concurrent and not separate acts.”

It is also contended that the letters, f. o. b., are used—

“To qualify, fix, and determine a certain essential feature of the contract, viz.: the price. The language, ‘ prices f. o. b.’ was not used unadvisedly by the parties to the contract. These words are not synonymous with ‘ delivery f. o. b. ’ nor with ‘ f. o. b.’ standing by itself. In interpreting the language, therefore, it should be given that interpretation which the parties themselves sought to put upon it, viz.: The basis of price of the coal, and not the interpretation which plaintiff’s counsel and the court below sought to arbitrarily place upon it, viz.: The place of delivery of the coal. Particularly is this so when an entire reading of other portions of the contract, as we have seen, clearly show that a contrary intention as, to place of delivery between the parties existed. The language related and was intended by the parties to it to relate entirely to prices, and not to indicate the place where title to the coal passed. It is equivalent to the following: ‘At the following prices less freight to Michigan Central R. R.’” — citing A. J. Neimeyer Lumber Co. v. Railroad Co., 54 Neb. 327 (40 L. R. A. 537).

The contract is clear and unambiguous and was properly construed by the court. The words, “ free on board,” in such contracts have acquired a settled judicial meaning. Vogt v. Schienebeck, 122 Wis. 491 (67 L. R. A. 756).

There is nothing in the clauses referred to by defendant’s counsel or elsewhere in the contract which militates against the usual meaning of the words; nor was there ■any evidence outside of the contract to warrant a different construction. The opinion of Commissioner Ragan in the Nebraska case, cited supra, supports defendant’s contention that the letters, f. o. b., relate to the price merely, but none of the other members of the court concurred with him upon this point, and Norval, J., dissented in an able •opinion supported by the citation of numerous authorities. Harrison, C. J., Sullivan, J., and Irvine and Ryan, CO., concurred—

“In the conclusion reached by Commissioner Ra.gan, on the ground that, conceding, for the purposes of this case,' that the use of the expression ‘ Prices f. o. b. Omaha’ might of itself afford a presumption that the delivery was to be made at Omaha, and that title should there pass, the other evidential facts were sufficient to ground an inference that title should pass at the place of shipment, and the question being one of fact, the finding is sustained by the evidence.”

As above stated, there are no such evidential facts in this case requiring a submission of the question to the jury. Althouse v. McMillan, 132 Mich. 145, is not in conflict with this conclusion. In that case “the correspondence contemplated, and there actually was in this case, in accordance therewith, a bill of lading procured, which, with the invoice attached, was immediately transmitted to the purchaser. This transfer of the bill of lading passed the title to the property in controversy,” citing cases.

In the case at bar there was no bill of lading transmitted to defendant. It is claimed that the postal cards sent to defendant, of which the following is an example, were equivalent to a bill of lading, viz.:

“ Mine weights govern settlements. All bills due tenth of each month.

“Jackson, Ohio, 10/28, 1901.

“A. Y. M.

“In our office we ship this day on your account:

Initial. Car No. Ton. Grade. Route, 186.

O. S. 4324 34.50 Lp. Dt. 5

6534 6 32.50

6753 7 31.00

5160 8 31.50

5083 9 32.00

“Mine No. 3.

“ Remarks: Weights to follow.

“ Yours truly,

“Superior Coal Company.”

Stamped: “Received Oct. 30, 1901. Ansd.-.”

These postal cards were in nowise inconsistent with the-construction we have placed upon the contract, and, being construed in harmony with it, were mere notices to the defendant that the coal company, in accordance with the contract, had shipped the ..coal for delivery to him free on board the cars at Detroit.

The judgment is affirmed.

Carpenter, C. J., and McAlvay, Grant, and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    CONNOR v. RIVARD.
    Deeds — Delivery—Evidence.
    A husband executed a deed of certain property to his wife and left it with the scrivener to be delivered in case of his death. Subsequently, when both were ill, she importuned him for a deed of the property, whereupon he told’ a third person the matter had been attended to and authorized him to get the deed, which he did. On being asked whether the deed should be read to his wife the husband made no reply. The wife, when asked whether she would take the deed or let the third person keep it, told him to keep it, and the husband said, “Keep it, and when we are well we will go down to your office and attend to it together.” A few days later the wife died, but the husband recovered and always treated the property as his own. Held, that there was no delivery of the deed.
    Appeal from Wayne; Brooke, J.
    Submitted January 11, 1906.
    (Docket No. 54.)
    Decided May 24, 1906.
    Bill by Augustus P. Connor and William J. Connor, executors of tbe last will and testament of Richard H. Connor, deceased, and others, against Máxime J. Rivard and others to set aside a deed. Prom a decree for complainants, defendants appeal.
    Affirmed.

      Clark, Jones & Bryant, for complainants.

      George F. Monaghan and Alex. J. Groesbeck, for defendants.
   McAlvay, J.

Complainants are the executors of the last will and testament of Richard H. Connor, deceased, joined with the legatees under said will. Defendants are Bryant Walker, the custodian of a certain deed hereinafter referred to, and the children by a former marriage of the deceased wife of said Richard H. Connor. Both Mr. and Mrs. Connor had been previously married, and each had children when married and children were also born to them. On February 20, 1886, said Richard H. Con-nor made and executed a certain deed, duly acknowledged by him March 1, 1886, of seven lots of land situated in the town of Grosse Pointe, Wayne county, Mich., and deposited said deed with the law firm of Walker & Walker, of Detroit, who were his attorneys. This deed was witnessed and acknowledged by and before E. C. Walker, the senior member of the firm. It was placed in an envelope, upon which was written the following indorsement:

“Deed to be delivered in case of death of R. H. Con-nor, grantor.

“Walker & Walker.”

It was deposited in the safe, and there remained in the custody of Walker & Walker, and of Bryant Walker, the successor of said law firm, after the death of his father. Catherine Connor, the grantee in said deed, was not a party to this transaction and had no knowledge that such deed had been made until December 16, 1893, nearly eight years afterwards. Catherine Connor died in December, 1893; Richard H. Connor died August 10, 1903. Complainants in this suit first learned of the existence of this deed, and that it was in the custody of Bryant Walker, December 9, 1903. This suit was commenced December 14, 1903. The bill of complaint, among other things, alleges the interest of complainants; the facts relative to making this deed; that it was deposited subject to the control and dominion of Mr. Connor, to be delivered in case Catherine survived him, if not previously recalled or revoked; that her death terminated all authority in Walker & Walker to deliver said déed; that the property described in said deed belongs to the estate of Connor; that Bryant Walker intends to deliver said deed to defendants, the heirs of Catherine Connor; that such delivery would be a fraud upon complainants, and a cloud upon their title — and prays that said deed may be decreed to have no legal effect, and may be set aside and declared void, and said Walker may be decreed to surrender the same to be destroyed, and also for an injunction against him, restraining him from delivering the same. Defendant Walker appeared, admitting that he had the deed in question, and disclaimed any interest in the suit, and alleged that he held the deed to be produced and delivered as the court might direct. The bill was taken as confessed by defendant Theodore B. Rivard. The other defendants answered, claiming that a delivery of this deed was actually made by the grantor to the grantee, December 16, 1893. Upon the hearing the court found the facts against defendants, and granted a decree in favor of complainants.

The proofs show that on December 16, 1893, Richard H. Connor and Catherine Connor his wife were both very sick with pneumonia at their home in Grosse Pointe; that Judge Henry N. Brevoort, was sent for and went to see them. As a witness for complainants he testifies that he found them both sick in bed in the same room. Mr. Connor was in the southwest corner, and Mrs. Connor in the northwest corner, of the large room they occupied. He states that he dictated a statement of what occurred at this interview, and presumes he did so on the same day. This statement was copied by a typewriter, and by the witness deposited with Mr. Walker. It was produced in evidence and identified by the witness, and sworn to be a true statement of what occurred. He testified:

‘‘ I rely more specifically upon my memoranda than upon my memory of it. It is more to be relied upon.

“ Q. So you offer all the facts as contained in this memoranda, marked ‘Exhibit 3,’ this typewritten memoranda, as the facts exactly as they were and as they occurred at that time?

“A. Yes, sir; as I have already stated, that these facts do not deviate from the exact circumstances as they •existed at that time.”

This statement (Exhibit 3), which witness used to refresh his recollection and from which he testified, is as follows:

“Saturday, December 16th,-1893, I was called upon by Mr. Frank St. Aubin with the request that I was wanted up to Mr. Connor’s house at Grosse Pointe. The carriage being in waiting at the Griswold street entrance, we drove up, and I was told by Mrs. Mary Moran that her mother wanted to see me. She stepped out of the room, leaving me alone with Mr. and Mrs. Connor, both being at the time sick in bed in the same room.

“Mrs. Connor said: ‘Years ago Mr. Connor bought some property [pointing across the street] with my money, and I want him to give me a deed of it.’

“ I asked her if she had asked him to do so, and she said she had a number of times.

“I said, ‘What did he say?’and she said, ‘He said, “ No.” ’

“ I said, ‘ When did you speak to him last about it ? ’ and she replied, ‘About three weeks ago, and he said, “No.” ’

“I stepped from her bedside to Mr. Connor’s bedside and said, ‘ Mr. Connor, your wife claims that some property in this vicinity has been bought with her money, and she would like to have you give her a deed of it.’ He replied, ‘ I attended to that years ago, 12 years ago. The deed is at Mr. Walker’s office.’

‘ ‘ I then said to her, ‘ He says he has attended to this years ago, and that the deed is at Mr. Walker’s office in the Moffat building.’ I again turned to Mr. Connor and said, ‘ Mr. Connor, if that is a fact, will you permit me to go and get the deed ? ’ He said, ‘ Certainly, I have trusted you before, and I can do so again. Go and get it.’

“ I left the house, and went directly to the office of Walker & Walker, obtained the deed, gave my receipt therefor, and returned again to Mr. Connor’s house. Both Mr. and Mrs. Connor appeared to be very sick. Holding the deed in my hand, I stated to Mr. Connor, ‘ I went down to the office and obtained the deed, and have returned here with it.’ I said, ‘ Shall I show it to Mrs. Connor and read it to her ? ’ He made no reply. I turned, opened the deed, and read the description of the property to her. It was witnessed by E. C. Walker .and John Higgs, presumably a clerk in the office. The instrument was acknowledged on the 1st of March, 1886, and the acknowledgment taken by E. C. Walker, a notary public. I said, ‘ Now, Mrs. Connor, this deed is all right, because I know that some of the pieces of property mentioned in the deed are part of the old Connor farm.’

“I said, ‘ Mr. Connor, this is the deed which you executed in Mr. Walker’s office ? ’ and he said, ‘Yes, sir.’

“I said, ‘ Is this the property you want to give your wife ? ’ and he said, ‘ Yes, sir.’

“ I said, ‘Mrs. Connor, do you wish to keep this deed, or shall I keep it ? ’ She said, ‘ You had better keep it.’ And Mr. Connor says, * Keep it, and when we are well we will go down to your office and attend to it together.’ “No one else was present. I was alone with them during the entire conversation.”

Witness returned the deed at once to Mr. Walker, to whom he had receipted for it. Catherine Connor died within one week after this occurrence. Richard H. Con-nor recovered, and lived about 10 years. Evidence was received showing his treatment of this property after his wife’s death. He made a will in January following his sickness, which was drawn by Judge Brevoort, by which he disposed of all of his estate, at which time he said, with reference to the deed to his wife, that she was dead now, and the deed was no good, or of no consequence. He afterwards paid taxes upon this land, and interest upon a mortgage, and also entered into a contract of sale of part of it. If there was a delivery of this deed, it occurred at the time these parties were sick, on December 16, 1893, and it must rest upon the statements, acts, and intention of the grantor at that time. The memorandum of Judge Brevoort is the record of that transaction. From this memorandum it appears that Mr. Connor was willing that his wife should know relative to this deed, and had confidence enough in Judge Brevoort to allow him to bring it to the house. He identified the deed and the property ■described in it. He did not consent that it should be shown or read to his wife. Judge Brevoort’s statement to the wife, “ Do you wish to keep this deed, or shall I keep it ? ” was voluntary on his part and unauthorized. Connor said to him, “ Keep it, and when we get well we will go down to your office and attend to it together.” No delivery can be implied from what occurred. Instead of making a delivery of this deed, it is clear to us, from this last statement of Mr. Connor, that his express intention was not to do so. The evidence offered relative to subsequent statements of Mr. Connor, and his dealings with this land, need not be considered.

The decree of the circuit court is affirmed, with costs.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    EGGERT v. EGGERT.
    1. Cancellation of Instruments — Deeds — Execution — Evidence.
    On a bill to cancel a deed, evidence examined, and held, to-show that its execution was not the grantor’s conscious, intelligent, and free act and deed.
    2. Insane Persons — Default—Appearance.
    A contention that the rights of an insane defendant were not sufficiently guarded is untenable, notwithstanding no answer was filed for him and his default was entered, where no proceeding was taken in the case unless he was represented, the hearing was upon the merits, participated in by his solicitors who produced witnesses in his defense, and his guardian ad litem was present and assisting in his defense as a witness.
    Appeal from Wayne; Hosmer, J.
    Submitted January 12, 1906.
    (Docket No. 66.)
    Decided May 24, 1906.
    Bill by Wilhelm Eggert against Gustave Eggert and Wilhelmina Eggert to set aside certain deeds. From a, decree for complainant, defendant Gustave appeals.
    Affirmed.

      Edmund Atkinson (William E. & Frank W. Atkinson, of counsel), for complainant.

      James H. Pound, for appellant.
   McAlvay, J.

Complainant on June 7, 1892, filed his bill of complaint against defendants in Wayne circuit court, in chancery, to set aside a certain deed to defendant Gustave Eggert, purporting to have been made November 6, 1885. The bill alleges that he is the father of defendant Gustave; that on September 16, 1884, they together purchased these premises jointly, being the southerly 20 feet of lot 15 and the northerly 10 feet of lot 14, Williams’ subdivision of outlot No. 22, private claim No. 30, Eort and John O. streets, according to the recorded plat thereof, located in Detroit; that in November, 1885, being very sick and desirous of making a will leaving said premises to his son, said Gustave procured the services of one Kurth, who prepared an instrument under the instructions of Gustave which, he told his father, was a will, and which complainant signed believing it to be his last will and testament; that he never knowingly executed a quitclaim deed to any one. He further states on information and belief that an instrument purporting to be a quitclaim deed of said premises, executed to said Gustave by him by affixing his mark, November 6, 1885, for the consideration of $63, was recorded in the office of the register of deeds of Wayne county, November 10, 1885, and that said Gustave claimed that by said deed complainant conveyed to him absolutely the said premises. He further states that he first learned of this deed May 16, 1892; that he is able to write his name, and no consideration whatever was ever paid him by Gustave; and that said pretended conveyance is a fraud upon him. On information and belief he alleges: That on December 22, 1887, said Gustave Eggert executed a quitclaim of said premises to Henry Ohrns, for $1 and other valuable consideration, which was duly recorded. That on the same date said Ohrns conveyed said premises by quitclaim deed to Gustave Eggert and Wilhelmina Eggert, his wife, in consideration of $1, which said deed was also duly recorded. In this last deed is the following recital:

“ Provided that should Gustave Eggert die before his father, William Eggert, said William is to have an undivided one-half interest in said property during his life, and upon the death of said Gustave Eggert and William Eggert said Wilhelmina Eggert is to become the sole and absolute owner.”

That Wilhelmina Eggert now claims to be the owner with Gustave of these premises, that she had full knowledge that all these conveyances were without consideration, and that they were made for the purpose of enabling her to obtain his undivided one-half interest' in the premises, which he alleges still belongs to him. He' further states that Gustave Eggert now is and for two years has been insane, and confined in the asylum at Pontiac. He prays that both the deed from him to Gustave, and the other deeds above described, as far as they affect his undivided one-half interest in said premises, may be decreed fraudulent and void; also for an injunction against Wilhelmina Eggert restraining her from conveying, mortgaging, or incumbering said premises. Service of subpoena was made on both defendants.

On August 24, 1892, Wilhelmina Eggert entered her appearance by Morse Rohnert, her solicitor, and on December 8th answered the bill of complaint, denying all the material allegations thereof and alleging that the deed was made at the request of complainant, was read over to him and duly executed, witnessed, and acknowledged, and that the premises are now, owned by the defendants as joint-tenants by the entireties.

The next step in the case was taken in January, 1904, when one William Schmidt filed a petition in said cause showing that defendant Gustave Eggert was an insane person and that he was his general guardian duly appointed ; that Gustave had never appeared in said cause, and prayed for appointment as his guardian ad litem. This petition was granted January 24, 1904. On February 3, 1904, on behalf of defendant Gustave Eggert by his guardian ad litem, Palmer & Palmer, solicitors, a motion was made to dismiss the bill of complaint. On February 25, 1904, on filing an affidavit of regularity and nonappearance, complainant’s solicitor filed a replication to defendant Wilhelmina Eggert’s answer. March 22, 1904, the motion to dismiss the bill of complaint. was denied, the default was set aside, and defendant Gustave Eggert given time to answer. On March 29, 1904, Palmer & Palmer as solicitors entered the general appearance of defendant Gustave Eggert in said cause. January 17, 1905, a petition was filed by complainant setting forth that defendant Wilhelmina Eggert had died April 24, 1899, and praying said cause be revived as to said Gustave Eggert. _ February 6, 1905, an order was entered directing said cause to proceed against Gustave Eggert, surviving defendant. February 23, 1905, upon the usual showing of regularity and want of answer, demurrer, or plea, an order pro confesso was entered against defendant Gustave Eggert, and that proofs be taken in open court. On February 27, 1905, application was made to take the deposition of Fredericka'Teos, a material witness for complainant, and notice of taking of such testimony given Palmer & Palmer, solicitors for defendant Gustave Eggert, and by stipulation in writing the said testimony was taken; solicitors for both parties being present. The cause was heard before Hon. George S. Hosmer, circuit judge, and the testimony is all before this court. A decree was granted in favor of complainant for the relief asked as to an undivided one-half of the premises in question, without prejudice as to any interest the heirs of Wilhelmina Eggert may have therein. The record shows that this decree was signed, filed, and entered May 1, 1905. On the same day Carl Wendtlant filed a petition showing, among other things, that he had been appointed general guardian of Gustave Eggert in place of former guardian, removed, praying that he might be appointed guardian ad litem of said defendant Gustave Eggert, instead of William Schmidt. The court granted this petition.

It is undisputed that at the time the deed was made by complainant to defendant Gustave Eggert, he was the owner of an undivided one-half interest in the premises. It is also undisputed that on November 6, 1885, at the-time this deed was made, complainant was very sick, and had been for a long time confined to his bed. The testimony of the witness Eredericka Teos, one of the subscribing witnesses to the deed, shows his condition at that time. She says his eyes were closed, and he did not speak; that the deed was not read over to him; that the pen was put into his hand and Kurth, the notary, talked to him and said, “We will say he says ‘Yes,’ ” and made the cross on the deed. She is the only witness of the execution of this deed. Complainant was apparently unconscious, at least in such condition that this court must say that the deed executed by him was not his conscious, intelligent, and free act and deed.

It is not disputed that the transfers from defendants to Ohrns and from Ohrns back to defendants were made December 22, 1887. The evident purpose of these deeds was to create an estate by the entireties in them. This is the claim made by defendant Wilhelmina in her sworn answer filed soon after this suit was commenced, and that the deed reserved to said complainant a life interest should he survive Gustave. These deeds need not be considered, in view of the fact that the deed from complainant was without consideration and void, and that the decree in the case from which complainant has not appealed was without prejudice as to the interest of the heirs of Wilhelmina.

It is contended that the rights of defendant Gustave have not been sufficiently guarded. The record shows that all the proceedings were regular, and no proceeding in the case was taken unless he was duly represented. It is true that no answer was filed for him, and a default was entered, but the hearing was upon the merits, participated in by his solicitors, who produced witnesses in his defense. The present guardian ad litem who takes this appeal was present and assisting in the defense as a witness. The decree of the court deprives Gustave Eggert of nothing he had before November 6, 1885. . There has been trouble in this family since this deed was made. There was some money of the old gentleman’s which was under the control of Wilhelmina, and to obtain which he was obliged to bógin proceedings at law. He says he was put out of' the house by her.

This suit was begun in 1892. There have been several substitutions of solicitors for complainant in the case, and the great delay in bringing the suit to a hearing seems to have been caused by the neglect, absence, and removal from the State of his former solicitors. Complainant is now 82 years old, and he is entitled to this little property of which he has. been for so long a time wrongfully deprived. The value of the entire property is less than $1,000.

It is urged that no costs should be granted. We acknowledge the force of this claim on account of the small value of this property and the unfortunate condition of both parties, and not because of any tender consideration for complainant’s relatives by marriage, or others, who, as suggested by the record, appear to be willing to speculate upon the result of this case.

The decree of the circuit court is affirmed, with costs.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


author: MoAlvay, J.

text:
    FIRST COMMERCIAL & SAVINGS BANK OF WYANDOTTE v. TRENTON MILLING CO.
    1. Fixtures — Character—Intention of Parties.
    The intention of the parties controls in determining the character of the property which is claimed to be a fixture.
    2. Same — Between Vendor .of Chattels and Mortgagee of Land.
    Machinery ordered by mortgagors in possession of a mill, to be put in the mill for the purpose of increasing its capacity, but not paid for, is, before its acceptance by the mortgagors and its permanent attachment to the premises, removable by the sellers with the consent of the mortgagors, as against the mortgagee whose security was not taken with reference to the machinery as a part of the real estate; no injury to the freehold having occurred from the machinery being brought onto the premises.
    Appeal from Wayne; Hosmer, J.
    Submitted January 12, 1906.
    (Docket No. 60.)
    Decided May 24, 1906.
    Bill by the First Commercial & Savings Bank of Wyandotte against the Trenton Milling Company, Arthur G. Judkins, Eleanor A. Judkins, William B. Park, the Harmon-Whitmore Company, and Sprout, Waldron & Company, to foreclose a land contract, and to restrain the removal of certain machinery. Defendant Sprout, Waldron & Company filed an answer in the nature of a cross-bill to enjoin complainant and defendant Trenton Milling Company from disposing of the machinery. From a decree dismissing the bill and granting the prayer of the cross-bill, complainant appeals;
    Affirmed.

      Charles H. Marr and Orla B. Taylor, for complainant.

      Anderson & Backham, for defendants Sprout, Waldron & Co. and Harmon-Whitmore Co.
   MoAlvay, J.

Defendant Judkins, having for several years operated under a land contract of purchase a certain flouring mill, on January 29, 1901, bought the property and received a deed therefor. It was situated in the village of Trenton, Wayne county. To make his final payment "he borrowed from complainant bank $2,000, and to secure such loan, and further loans which might thereafter be made by complainant to him to an amount not exceeding $2,500, Judkins and wife, on January 31, 1901, gave a warranty deed of said premises, including the flour mill building, machinery, engine, etc., to complainant, taking back an agreement in the nature of a land contract that the said premises would be reconveyed to him upon the repayment of all sums loaned as aforesaid according to the terms of the promissory notes representing the same, together with interest, insurance, and taxes, and other conditions usual in land contracts.- The deeds were both recorded March 1, 1901. The contract was not recorded. Judkins, who continued in possession of the property, soon took defendant Park into partnership with him under the firm name of Judkins & Park. On April 19, 1901, they borrowed an additional $1,000, giving Judkins’ note indorsed by Judkins & Park. On May 20, 1901, they borrowed $1,000, giving a similar note, and on August 5, 1902, they borrowed $400, giving Judkins’ note indorsed by Park, making the' total amount borrowed from the complainant bank $4,400. This was a custom flouring mill about 40 years old. The partnership business was not successful, and Judkins withdrew, turning the contract over to Park with a verbal agreement that when Park secured his release from all obligations to the bank he would assign it to him. This occurred in 1903, and before August of that year. The bank was not a party to the transaction, but it had knowledge of the withdrawal of Judkins. The mill did not run after January 1, 1903. Park interested certain parties in this property, who, to•"gether with him, organized defendant Trenton Milling -Company, a Michigan corporation, which went into possession as successors of Park. On September 17, 1903, complainant bank filed its bill in the Wayne circuit court, in chancery, to foreclose the said land contract against Judkins and wife, Park, and the Trenton Milling Company, as defendants, which foreclosure suit was pending and undetermined at the time of the commencement of the suit at bar. After the Trenton Milling Company was organized and the foreclosure suit begun, some negotiations were had between the officers of the milling company and complainant bank relative to an extension of time on the indebtedness to the bank, a discontinuance of the foreclosure suit, in case insurance, interest, and back taxes were paid, and the milling company to make improvements upon the property. There is a sharp dispute in the testimony upon this matter; the milling company insisting that such an agreement was entered into between it and the bank, and that, relying upon it, interest, taxes, and insurance were paid by it to the amount of $349.67, and $1,500 in cash was expended in renovating and improving the flouring mill. Complainant denies that such agreement was made. The defendant Trenton Milling Company, October 15, 1903, entered into an agreement in writing with defendant Sprout, Waldron & Co., for the purchase of certain flouring mill machinery and material, to the amount of $1,064, to be accepted and paid for on certain terms when the same was operated so as to fulfill the milling guaranty provided in the agreement. On or about October 1, 1903, defendant milling company ordered from defendant Harmon-Whitmore Company certain other milling machinery and material for said mill, to the amount of $403.60, which was shipped to and delivered at the mill in October and November following, on 30 days’ trial and 60 days’ time. Nothing was paid on either •of these lots of machinery and material furnished by these ■defendants.

The milling company, ascertaining that the foreclosure suit had not been discontinued, and being unable to market its stock on that account, informed both of these defendants of that fact and a representative of each came to Trenton. At this time none of this machinery had been operated or tested. Some of it was in crates and bundles in the mill. Some of the machines had been put into position, but not permanently attached to the premises. Some of it was standing in the mill not in position. None of it was connected up for use. The milling company made no claim to this property, and gave to each of these defendants an agreement in writing relative to removing the same.

Complainant bank, upon learning that they were about to take the machinery away, filed its bill of complaint in this case, setting up the facts herein related as to its relation to the property and its security thereon, the pendency of the foreclosure proceeding; alleging that, since the execution of the deed to it, Judkins, Park, and the milling company had been in possession operating the mill, that they had taken steps to put in new machinery, and to that end had removed a considerable quantity of old machinery, which, however, was fitted for the purpose of manufacturing flour, and put in new machinery for the same purpose, that the kind of machinery or the nature of the contracts of purchase from the companies furnishing the same was not known, but that said companies claimed title thereto, that the old machinery was taken out to furnish space for the installation of the new, that if the new machinery is removed the character of the property as a grist mill will be destroyed, that the same has been so attached to the realty that it has become a part thereof, and that the vendors claim such machinery and threaten to remove the same, in violation of the rights and interests of complainant, and to its great damage, and" the damage of the property; praying for an injunction to prevent the removal of the machinery, and that such machinery may be decreed to be a part of the premises and held to be security for complainant for the performance of the terms and conditions of the land contract. A preliminary injunction was granted as prayed for.

Issues were joined upon the answer of defendant Harmon-Whitmore. Company, and the answer and cross-bill of defendant Sprout, Waldron & Co., upon which an injunction had issued against defendant milling company and its officers. The cause was heard before the court, and a decree was granted dissolving the injunction in favor of complainant, and dismissing the bill of complaint, and making permanent the injunction in favor of defendant Sprout, Waldron & Co. declaring the machinery delivered by it to the inilling company to be personal property belonging to said defendant, and decreeing the same as to the property of Harmon-Whitmore Company, and the right and privilege of both defendants to enter upon the premises and remove their property.

Upon this appeal we are asked to reverse this decree, upon the ground that the machinery and materials in question became and were part of the realty, subject to the conditions of complainant’s contract. The relations of the complainant and all defendants, except these who claim this property in dispute as recognized by complainant in its foreclosure proceedings, are those of mortgagor and those holding under him in possession, and mortgagee. While it is true that, as far as the record shows, there had been no written assignment by Judkins to the other defendants holding under him of his interest in the premises under the land contract, yet the complainant had knowledge of their relations, and the possession of the property by defendants Park and the milling company, and had recognized whatever rights they had by receiving from them interest, insurance, and taxes claimed under the contract. There is abundant proof in the record to show that complainant did agree with defendant milling company, as claimed, to discontinue the foreclosure proceeding and extend the time of payment for one year, if interest, insurance, and taxes were paid, and improvements were put upon the property. That this was done is not disputed. Complainant bases its contention upon the claim that this was a going mill, that by taking out certain old machinery, if the new machinery to be substituted for it is not to remain, it is made a dead property, and its security is greatly depleted. If the proposition were supported by the facts, there might be force in the contention. The proofs show that this mill had been run at least 40 years; that the machinery was worn and out of date; that the changes made upon the old machinery and the additions by way of repairs and new shafting added to instead of decreased the value of this property. • Complainant knew that changes were being made and money expended in improving this property and consented thereto. The machinery in dispute was to be put in the mill for the purpose of increasing its capacity. It was negotiated for upon representations on the part of the milling company relying upon its agreement with complainant. The good faith of the parties is apparent. In the case of Sprout, Waldron & Co. there was a written guaranty of performance, the property not to be accepted and paid for until g,fter the test made; and in the case of Harmon-Whitmore Company a verbal guaranty upon 30 days’ trial. Neither of the lots of machinery was accepted under the agreements by the milling company, and permission was given to remove the same. When this permission was given much of this property was standing in the mill in crates and bundles as received from the shippers. Some had been uncrated and was standing on the floors of the mill. Some had been placed in position, but was not attached permanently to the premises. This was machinery and material manufactured for the trade, ready to be installed with but little trouble and expense. As between the sellers and purchaser of this property, it clearly appears that no title had passed; that the property had not been so attached to the realty as to become a part of it. This situation was recognized by both vendors and vendees when permission was given to remove it. The intention of these parties is perfectly clear, and in this State it has been.held that the intention of the parties must control in determining the character of the property which is claimed to be a fixture. Wheeler v. Bedell, 40 Mich. 693.

It remains to be determined whether any rights of complainant mortgagee intervene, and are paramount to the rights of the vendors of this property. We think they do not. Defendant milling company’s relation to the premises was that of a mortgagor in possession. Complainant, as a contract vendor, was an equitable mortgagee. It did not take its security with reference to this property as part of the real estate, and no claim can be made on that ground. Harris v. Hackley, 127 Mich. 46. Considering the fact that all of the old machinery of any value to the mill is still there, repaired, and in better condition and position than before, that new shafting has been put in, and repairs have been made of about $1,500 — all done with the consent and acquiescence of complainant — it •appears to us that the property has been largely increased in value, and that complainant’s contention to the contrary is without foundation. No title to this property having passed to the milling company, and it never having become attached to and a part of the realty, complainant acquired no right or interest therein.

The decree of the circuit court is affirmed, with costs.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


author: Hooker, J.

text:
    DRAGGO v. WEST BAY CITY SUGAR CO.
    1. Novation — Sufficiency of Evidence.
    In an action by a lessor to recover rent, evidence examined, and held, insufficient to show a novation.
    3. Appeal and Error — Finding of Jury — Conolusiveness.
    The finding of a jury on a disputed question of fact is conclusive.

      3. Statute of Frauds — Promise to Pay Debt of Another.
    Where plaintiff leased lands to one having a contract with defendant for raising beets on the land, defendant making certain advances to the lessee for seed, eto., and reserving title to the beets until reimbursed, and also the right to enter, cultivate, and harvest the crop in case the lessee should fail to properly cultivate and harvest the same, an oral promise hy defendant, on the lessee’s failure to pay the rent, to pay the same to plaintiff, was void under the statute of frauds.
    Error to Bay; Shepard, J.
    Submitted January 24, 1906.
    (Docket No. 182.)
    Decided May 24, 1906.
    Assumpsit by Sophia Draggo against the West Bay City Sugar Company for rent. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Luther G. Beckwith, for appellant.

      George JR. Fox, for appellee.
   Hooker, J.

Sophia Draggo made a lease of a parcel ■of land (25 acres) to one Sovereign, for one year, agreeing to plow, harrow, pulverize, float, and roll, and drill beet seed in. She was to be paid therefor the sum of $8 per acre, one-half of said sum on or before November 20th, and the other half on or before December 20th, of the same year. Previous to the making of the lease, Sovereign had negotiated with the defendant regarding a contract for raising beets, and was promised such a contract by defendant, provided-he should obtain 100 acres of land upon which to raise them. Later, he and the defendant made such a contract, which was "in writing. It reserved the title to the beets in the defendant, until reimbursed for seed and advances, and reserved to itself the right to enter, cultivate, and harvest the crop in case Sovereign should fail to properly cultivate and harvest it. The plaintiff did not perform her contract with Sovereign as to the work to be done by her, and by arrangement it was done by Sovereign, upon an agreement that he should be allowed to deduct its cost from the first payment of rent. This work amounted to $105. Sovereign had some 60 acres of beets, all told, upon which the defendants had, by or about July 4th, advanced him between $1,300 and $1,400, and declined to advance more money. Thereupon he notified the plaintiff that he was going to quit, and that she must look to the defendant for her rent. Between three to five acres of this land was not sown to beets. Sovereign, or plaintiff’s husband, or possibly both, informed the defendant that Sovereign had concluded to give up the crop, and plaintiff’s husband gave testimony tending to show that the plaintiff stated to the defendant that she would proceed to enforce her claim, if defendant did not adjust the matter, and that, after two interviews, it was agreed that she should not sue to obtain possession of the land, and that defendant would pay the rent agreed to be paid by Sovereign. This was an oral arrangement, if it was made. The defendant’s version of the matter is that its manager .sent men to care for the crop, under its contract with Sovereign; that in its conversation with plaintiff and her husband, who were concerned about the collection of the rent, it said no more than that it would carry out its contract with Sovereign, and would pay the rent from the proceeds of the crop, if enough were left after reimbursing the defendant for its advances. The court refused a request to direct a verdict for the defendant, and the plaintiff recovered a verdict and judgment. Error has been brought by defendant.

Counsel for the defendant say that the court should have directed a verdict for the defendant on the ground that, if the promise was made as alleged, it was a promise to pay the debt of another, and void because not in writing, and furthermore that it was without consideration.

Counsel for the plaintiff claim: (1) That there was a new and original promise based upon a forbearance to sue; (2) that the proof shows a novation. The claim that there was a novation is set at rest by the following testimony of the plaintiff herself:

Q. You never had any settlement with Mr. Sovereign ?

“A. No.

Q. You testified in justice’s court that you never had liad a settlement and you had not released Mr. Sovereign under the lease that he made with you ?

‘ ‘ A. No, sir; he wasn’t released only for that piece of potatoes.

Q. Only for the piece of potatoes ?”

Her husband also testified:

“ Q. You never released Sovereign from his lease, have -you ?

“A. Yes, Mr. Sovereign told me he had thrown it up, and he told me to go 'to Mr. Bialy.

Q. You say Sovereign told you he had thrown it up ?

A. Yes, sir.

A “ Q. Didn’t you testify in justice’s court that you never had released Sovereign ?

“A. I never released him.

‘ ‘ Q. Did you never release him ?

A. I never understood it that way.

Q. That you never had any settlement with him ?

‘A. I never had any settlement with him myself, certainly; but he told meto go to the West Bay City Sugar Company, and they would take the beets off my hands for the rent of my land.

Q. Didn’t you testify in justice’s court that Sovereign told you that the sugar company would not advance him any more money, and that the sugar company was going to take charge of the beets, and that you would have to look to them for your pay ?

“A. Yes, sir.

“ Q. That is what Sovereign told you when he gave up the land as you say, or abandoned it ?

“A. Yes, sir.

Q. So that you knew at that time, before you saw Bialy at all, that they were going to take charge of the beets ?

“A. No, sir; I couldn’t say as I knew it. Mr. Sovereign told me to go to the West Bay’ City Sugar Company.

Q. Sovereign told you that they were going to take charge of the beets ?

‘A. He told me to go there, that they would take charge of the beets.

“ Q. Didn’t Sovereign tell you that they would not advance him any more money, that they were going to take charge of the beets, and that you would have to look to them for your money ?

“A.. Something in that way; yes, sir.

Q. That was before you saw Bialy at all ?

“A. Yes, that was the last conversation I had regarding the land with Mr. Sovereign.”

The only other testimony which appears to have any significance upon this subject is that of Sovereign, who was called by defendant. He testified:

Q. Did you tell Mr. Draggo that you were going to throw up this contract ?

“A. I told him that the company would advance me no more money, that they were going to send a man up there to take charge, that I was going to quit, and he must look to them for his money. He said he would. He said he would hold his beets until he got it.”

This is not inconsistent with the testimony of plaintiff and her husband that it was not their intention to. release him, though they would try to get the rent from the defendant, and to that end would hold the beets.

In the other quóstion there was a disputed question of fact, viz., whether defendant promised to pay the rent due from Sovereign, and for which it was not liable up to that time. This was a question for the jury, whose finding would necessarily be conclusive. This was, however, if made, a promise to pay the debt of another, and void under the statute of frauds, unless the circumstances show that it was a valid, new, and original promise. The cases of Waldo v. Simonson, 18 Mich. 345, and Stewart v. Jerome, 71 Mich. 201, cited in the brief of defendant’s counsel, seem to settle the rule as contended for- by them, being substantially like this case. See, also, Wierman v. Sugar Co., 142 Mich. 422.

A verdict should have deen directed for the defendant. The judgment is reversed, and a new trial ordered.

McAlvay, Grant, Blair, and Moore; JJ., concurred.


author: Gbant, J.

text:
    ANDREWS v. WECKERMAN.
    1. Bridges — Establishment—Highways.
    Where a township, by regular proceedings, lays out a highway across a mill pond, it acquires a right to build a bridge across the pond as a part of the highway, though there is no reference in the proceedings to the erection of a bridge.
    2. Highways — Construction—Water Power — Injury—Damnum Absque Injuria..
    Where the construction of a highway across a mill pond reasonably requires the building of an embankment of earth a part of the distance, any injury resulting to the water power therefrom is damnum absque injuria.
    3. Same — Reasonableness.
    In constructing a highway across a mill pond by means of embankments of earth and a bridge, a waterway of sufficient width to carry the flow of the water at all ordinary stages of both high and low water is all that need be provided.
    4. Evidence — Judicial Notice — Water in Streams.
    The court will take notice that the small streams of the State grow less year by year.

      5. Waters and Watercourses — Obstruction of Flow — Action —Parties.
    Where the owners of a water power have leased it to a corporation in which they are the principal stockholders, the owners and the corporation have no common interest that entitles them to maintain suit jointly for damages for injury to the power by obstruction of the flow of water.
    Appeal from Osceola; McAlvay, J.
    Submitted February 1, 1906.
    (Docket No. 81.)
    Decided May 24, 1906.
    Bill by James H. Andrews, Cornelia I. Andrews, and the Reed City Electric Company against August Weckerman, highway commissioner, Amos Rosenberg, supervisor, and the township of Richmond, to enjoin the obstruction of complainants’ water rights. From a decree for complainants, defendant township appeals.
    Reversed, and bill dismissed.
    Complainants own a mill site and the right to maintain a dam over Hersey river or Hersey creek, a small stream of water flowing through the village of Reed City and the defendant township. Complainants introduced mesne conveyances from James M. Reed and others in 1877 to complainant James H. Andrews. The description of the land in these deeds is as follows:

      “ Commencing at the northwest corner of the southwest quarter of the southwest quarter of section ten, in town number seventeen north, range ten west; thence south twenty-two degrees and thirty minutes east, seven and fifty hundredths chains; thence south twenty-six degrees and no minutes, west five chains and twenty-three hundredths; thence east parallel with Slosson avenue seven and fifty hundredths chains; thence north twenty-one degrees, east seven and fifty hundredths chains; thence north thirty degrees and thirty minutes, west six and twenty-three hundredths chains, to the north line of the southwest quarter of the southwest quarter of section ten; thence west along said line to place of beginning, the same containing ten acres, more or less. Also, to wit: Commencing at the northeast corner of the southeast quarter of the southeast quarter of section nine, town number seventeen north, of ten west, in Osceola county, Michigan; in metes and bounds, as follows: Running west to the water’s edge as it now exists in said mill dam; thence south according to the meanderings of the water’s edge, thence east according to the meanderings of said water’s edge to the mill dam; thence north to the place of beginning. Also the rights of flowage over the lands of the said parties of the first part and adjoining lands whereby he may raise and maintain the mill dam now on the lands hereinbefore described, and raise the water in said dam to the height of eight feet from the bottom of the shute now in the said dam, with the further right *to raise the same to high-water mark as the same passes over the waste ware in said dam, so that the party of the second part may keep the water up to high-water mark at all times that to him shall be convenient and desirable.”
    The village comprises the S. £ of section 9, S. W. £ of section 10, N. W. £ of section 15, and the N. £ of section 16. The dam is located on-section 10, a few rods east of the section line between sections 9 and 10. A little more than half of the surface of the mill pond is within the village limits. The other part lies north in the township. Chestnut street in said village is one of the principal thoroughfares, and extends to the northern limits of the village in the mill pond.
    In 1892 a public highway was laid out by the defendant township to connect with Chestnut street, and a wooden bridge on piles constructed over the pond and river bed. In 1901 the bridge became out of repair, and the township voted to construct a new roadway by erecting an iron bridge with a span 45 feet wide, and filling in with earth on either side. Money was duly appropriated for that purpose, and the filling commenced in 1901, by drawing dirt and dumping it through the wooden bridge. The natural channel of the river in the span of the bridge is about 19£ feet wide. The fill from the south end. of the bridge to the south shore of the pond is 443 feet long, and from the north end of the bridge to the north shore 53 feet. Notice was seasonably given by the complainants to the township authorities that the construction of this road by filling in with, dirt was an encroachment upon their rights and a damage to them. The township proceeded with the work, until the fills on either side left an opening or span of about 81 feet. Complainants then filed this bill to enjoin further filling and to recover damages for the fills already made.
    A short distance below the highway are the bridge and track of the Grand Rapids & Indiana Railroad. That bridge is built upon piles with an opening of 124 feet between the embankments. When the dam is full the back water extends nearly a mile up the river. The highway bridge is about half a mile from the dam. The width of the pond is about 1,500 feet. The natural depth in the bed of the stream is 15 feet.
    After the injunction was served, a stipulation was entered into waiving the injunction so far as to permit defendants to level off the surface of the earth embankment, fit it for travel, to erect a temporary wooden bridge over the open water between the iron bridge which had already been erected and the other enbankment, and in time replace the temporary structure with an iron bridge. The iron bridge was subsequently constructed. This stipulation reserved to the complainants all their rights to an amicable settlement or by suit either in chancery or at law. Failing to agree, complainants prosecuted the chancery suit already begun. Proofs were taken in open cburt, and a decree rendered for the complainants for $4,000 damages, and requiring defendants to “put in substantial stone or cement abutments at the north and south ends of the bridge, and. so provide that the ends of the embankments in question will not thereafter wash away, and to within the same time remove the' disused wood piles now in the water under said bridge, so that the flow of the water thereunder may be unimpeded.” Upon failure to perform these affirmative acts, the preliminary injunction was to be “ permanent and perpetual, without exception or qualification.”
    The situation may be more readily understood from the accompanying plat.

      Further essential facts will be found in connection with the points decided.

      Charles A. Withey (M. Brown and J. E. Richardson, of counsel), for complainants.

      B. N. Savidge (C. H. Rose and J. B. Judkins, of counsel), for appellant.
   Gbant, J.

(after stating the facts). 1. This highway was laid out in May, 1892. The proceedings were regular. Andrews’ grantors, then owning the mill site and the 10 acres above described, and perhaps certain rights of flowage of other lands, were made parties to those proceedings and damages awarded them. In the petition and other papers no reference was made to the erection of a bridge. Necessarily the construction of one was implied. The highway was of the usual width, 66 feet. The old mill — a grain mill — and the race had previously been burned. Nothing was left but the dam and a residence and barn. When the fire occurred the record fails to show. No steps were taken to question the validity of the highway proceedings. Andrews’ grantors rested content with the determination of the highway commissioner and the award of damages. The first question naturally presented is: What kind of a highway did the township authorities acquire the right to construct ?

The complainants Andrews have.shown no title to the land abutting the shore or the land under the water where the highway is located. If they have any right of flowage, it is by prescription, and as to that the evidence is meager. Undoubtedly the grantors of Mr. Andrews were made parties on account of their supposed right of flowage. The township thereby became a riparian owner and possessed the right to occupy this space, 66 feet wide, across the mill pond in the construction of a highway for the public. It was not limited to any .particular form of structure. It was under legal obligation to leave an opening sufficient for the flow of the water at all ordinary stages of both high and low water. Having done this,- it might erect a solid embankment from the shores to the bridge over such opening. It has left one over the natur-' al channel and current of the river and extending 60 feet outside of such channel, with an average depth of 10 feet. If such a construction is reasonable, and we think it is, and one which the interests of the public demanded, of which there is no doubt, it being one of the principal thoroughfares of the village and township, the action of the township is lawful, and any injury to the complainants is damnum absque injuria. This court said, in Dumont v. Kellogg, 29 Mich. 420:

“ It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will. give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress.”

The reasonableness of the use and enjoyment in each particular case is the controlling factor. Rowe v. Granite Bridge Corporation, 21 Pick. (Mass.) 344; Sprague v. City of Worcester, 13 Gray (Mass.), 193. In the latter case Chief Justice Shaw held that “all the defendants [the municipal authorities] were bound to do was to build a bridge with a waterway reasonably sufficient to carry off the water in its ordinary and usual condition, at all seasons of the year.” See, also, Callender v. Marsh, 1 Pick. (Mass.) 418; Ely v. City of Rochester, 26 Barb. (N. Y.) 133; Hoxsie v. Hoxsie, 38 Mich. 77. But for the complainants’ mill pond a bridge covering an opening of 45 feet would have been amply sufficient. Other bridges in the vicinity over this same stream, above and below, are built with that width of opening.

2. Without entering into details of the evidence, we are satisfied that complainants failed to make out a case for damages. It seems apparent that a space 81 feet wide, extending over the natural channel, and on an average 10 feet deep, will take the water from above the bridge as rapidly as it will be drawn off through the raceway for use of the complainant company. Actual measurements and experiments, which are better evidence than the testimony of alleged experts, demonstrate that the pond above the bridge lowers as fast as that below when the water is drawn off at the raceway. Furthermore, it appears from the complainants’ own evidence that there had been no lack of water for the use of the electric company until the summer of 1904, two years after these embankments and bridge were constructed. It is conclusively established that that was due solely to the unprecedented drought of that season. The electric company had put in an engine in case of emergency, but it had no occasion to use it until that summer. Clearly the electric company had suffered no damage from the act of the township, but only from the act of God. In view of these facts, we may well believe the testimony of the witness who testified that in January, 1903, Mr. Andrews said “that he had suffered no damage as yet, and did not know that he ever would.” The record fails to show how far the south embankment extends beyond that of the railroad. It evidently is but a short distance. An examination of the plat shows that whatever current ther„e may have been in this pond against the railroad embankment is not impeded to coiúplainants’ injury by the highway embankment directly west of it and only about 100 feet distant. It is also shown that this stream, like other small streams, grows less year by year. ' Of this courts will take judicial notice. Hilliker v. Coleman, 73 Mich. 170.

3. The two complainants, the Andrews and the company, have no interests and have suffered no damage in common which entitle them to maintain suit jointly therefor. The complainants Andrews have no interest in the damage suffered by the electric company. The electric company has no interest in the damage to the freehold of complainants Andrews. The fact that the complainants Andrews are stockholders of the electric company is immaterial. The company is a distinct entity. The term •of the lease is not given. For all that appears it may be '99 years, or a perpetual lease. Complainants Andrews, owning the fee, would not be responsible to the electric company for any injury done to its leasehold by the township authorities. The action of the township authorities, if damage did result, would form no defense to an action upon the lease. If the electric company brought suit against the township for damages, the injury to the freehold would not affect the measure of damages to be given the leasehold interest. The measure of damages in the one case would be different from that in the other. Complainants may have had a common interest in procuring an injunction to restrain the obstruction of the flow of the water; the electric company, because it was interested in maintaining the flow of the water for immediate use; the owners of the fee, because they were interested in maintaining its flow for future use after the termination of the lease. The stipulation removed from the consideration of the court this common interest, and left only for future adjustment by suit or otherwise the question of damages. For this a suit at law would have been the only remedy, in which the complainants could not have been joined. The fee owners can suffer no damage from a diminution of the water until the expiration of the lease. The life of the lease and its terms are important in determining the injury to the freehold. If complainants desired to continue this suit in force for the determination of damages to each, it was incumbent upon them to show what dajnage each had suffered, and to have a decree for each specific amount. There is no data from which to apportion damages, even if any were suffered.

Decree reversed, and bill dismissed, with costs of both courts.

Montgomery, Ostrander, Hooker, and Moore, JJ., -concurred.


author: Ostrander, J.

text:
    PRAY v. RAILER.
    1. Wills — Construction—Income of Property Devised.
    A will gave certain cash bequests to certain of testator’s children, to be paid when his youngest child should reach the age of 21, and gave the residuary estate to his other children, to be divided among them at the same time. A subsequent item provided that, if testator should die before his youngest child had reached 21, the residuary legatees should be allowed to occupy the real estate of which he died seised. One of the residuary legatees was requested to continue to reside upon the land and care for the others until they should arrive at majority. The will further stated that, if the son should refuse or neglect to do as requested, the executor should see to it that the rents and profits of the property should be used for the support of the residuary legatees until they were 21. The income from the property would have been insufficient to support all of them. Held, that it was not testator’s intention that this income should be divided equally among all the residuary legatees, but that it should be used as necessary, and as testator might have used it if he had been living.
    2. Same — Bill for Construotion — Issues.
    On a bill for the construction of a will, it is improper to interject, by cross-bill or otherwise, a claim of the guardian of one of testator’s infant children for reimbursement for sums which she claims to have advanced for the support of the infant.
    Appeal from Eaton; Smith, J.
    Submitted February 1, 1906.
    (Docket No. 84.)
    Decided May 24, 1906.
    Bill by Esek Pray, executor of the last will and testament of Jonathan, Railer, deceased, against Richard Railer, Charity Cooper, individually and as guardian of Nellie M. James, a minor, and others, for a construction of said will. Defendant Cooper filed an answer in the nature of a cross-bill praying for an accounting as said guardian. From a decree for cross-complainant, defendants appeal.
    Modified and affirmed.

      Lewis J. Dann, for complainant.

      H. W. Oavanagh, for defendant Cooper.

      JR. S. Woodliff, for appellants.
   Ostrander, J.

The matters in dispute in this cause arise upon the will of Jonathan Bailer, the disposing portion of which is as follows:

Item First. I hereby give, devise, and bequeath unto my children hereafter named, the sum of two hundred dollars ($200) each, viz., Bichard Bailer, Mabel Bailer, Edna Bailer and Charity Cooper, to be paid to them by my executor at the time when my youngest child which shall then be living after my decease, shall arrive at the age of twenty-one years, and in case I shall live until after my youngest child shall have arrived at the age of twenty-one years, then within one year after my death.

“ Item Second. I hereby give, devise and bequeath unto my daughter, Lillian Huett, the sum of one hundred dollars ($100), to be paid to her by my executor at the time my youngest child which shall then be living after my decease shall arrive at the age of twenty-one years, and in case I shall live until after my youngest child shall have arrived at the age of twenty-one years, then within one year after my death. .

“Item Third. I hereby give, devise and bequeath all the rest, residue and remainder of all my real and personal estate wheresoever situate, to my children, Clarence Bailer, Charles Bailer, Nellie Bailer and Carrie Bailer, to be divided equally among them, share and share alike, at the time when my youngest child then living after my decease, shall arrive at the age of twenty-one years, and in case I shall live until after my youngest child shall have arrived at the age of twenty-one years, then said property to be divided among the legatees in this item named within one year after my decease.

‘ ‘ Item Fourth. In case I shall die before my young'est child then living shall have arrived at the. age of twenty-one years, I direct that the four children named in the third item of this will shall be allowed to use and occupy all the real estate of which I may die seised, and have the use of all the personal property of which I may die seised, after the payment of my just debts, funeral expenses and costs of administration, until such time as the youngest one of my said children then living shall have arrived at the age of twenty-one years, and I request that my son, Clarence Railer, continue to reside upon the real estate now owned by me, and provide a home and support for his younger brother and sisters until such time as they shall have arrived at the age of twenty-one ye^rs, and in case my son, Clarence Railer, shall refuse or neglect to furnish such home and to continue to reside upon such real estate for that purpose, that then my executor shall see to it that the use, rents and profits of said real and personal property of which I may die seised be used for the support of my said children, mentioned in item three of this will, until such time as they shall become of the age of twenty-one years.

“I hereby appoint Esek Pray, of Windsor township, county of Eaton and State of Michigan, executor of this my will.”

The executor prays for a construction of the will and a determination of the rights of the several parties in and to the use, rents, and profits of the estate and for directions concerning the disposition of the estate and the use, rents, and profits thereof under the will. The defendant Charity Cooper, in her answer in her own behalf and as guardian, admits the necessity for an interpretation of the meaning of the will, sets out that she was duly appointed guardian of Carrie M., Charles B., and Nellie M. Railer, all of whom, except Nellie M., are now of age, and that as such guardian she expended for the minor children divers sums of money, for which she has not been reimbursed by the executor, and that for Nellie M. RailerJames she expended large sums of money for her care and maintenance, an account for which was duly allowed by the judge of probate of the county of Eaton, of which $270 or thereabouts remains unpaid, and she claims should be paid out of the rents and profits of said estate, together with a reasonable sum for her compensation. She further sets out that the rents and profits of the estate accumulated and on hand amount to about $200. Nellie M. Railer-James, by, her guardian ad litem, denies that the said Charity Cooper paid out any such sum or any considerable sum for her support, and alleges that for the most part she has supported herself, and she admits that the rents and profits of the estate are not now needed for the support and maintenance of herself. She also joins in an answer with Charles and Carrie, setting out in substance the same matters of defense.

■The. learned circuit judge was of opinion that the legacies mentioned in the will vested immediately upon the death of the testator, and, consequently, that the legal heirs of Clarence Nailer, one of the said devisees, deceased, are entitled to his share when the estate is distributed ; that no further payments were needed for the care and support of the minor children mentioned in the will. But he was of the opinion also that defendant Cooper is ■entitled to the amount of her account as allowed by the ■probate court to the extent of any fund in the hands of the executor growing out of the use, rents, and profits of the real and personal property of the testator; that this account, having been allowed by the probate court, was presumptively a valid account; that the payment of her account was not left to the discretion of the executor, and that the executor is bound to the extent of the amount in his hands and any further sums to be derived'from said estate before the defendant James arrives at the age of 21 years; that the will, properly construed, means that the executor, at the time when Nellie M. James arrives at full age, should pay the balance of the account of said guardian Cooper a,s allowed by the probate court, if he has money sufficient therefor arising from the use, rents, and profits of the estate, and if he has not, that he should' apply what he has to the partial payment of such account; that he should pay the legacies given by the items 1 and 2 to the persons named therein, and the remainder of the estate, from whatever source derived, should be distributed among the persons named in item 3 of said will, the heirs of Clarence Nailer being entitled to his share.

It will be seen that the principal, indeed only, dispute arises over the claims of the defendant Cooper and is between herself and the other defendants. For these defendants (appellants) it is contended that the will is unT ambiguous; that it expresses clearly an intention on the part of the testator to divide the use, rents, and profits of the estate equally between the four residuary legatees until the youngest child should arrive at the age of 21 years; that the provision in the fourth item of the will, reading, “that then my executors shall see to it that the use, rents and profits * * * be used for the support of my said children mentioned in item three of this will,” means a use not according to necessities, but a division, share and share alike. It is insisted, further, that, under the pleadings, the decree cannot stand; that, although the answer of Charity Cooper contains the words “ and she here avers in the nature of a cross-bill the facts in regard to said guardianship,” the answer was not served upon the other defendants, and no answer was ever filed to her answer; that in form the answer' does not entitle her to any affirmative relief; and that the only thing the bill was filed for was for a construction of the will. It is further contended that the allowance of the guardian’s annual account by the probate court has no binding effect upon any other of the defendants so far as disbursements after they had attained their majority are involved.

It will be noticed that the third item of the will is the residuary clause thereof, and that the fourth item contains directions which may be said to be addressed to the executor to control the disposition of the rents and profits of the estate until such time as, according to the terms of the will, it is to be divided. The specific legacies amount to $900, none of them payable to any of the children mentioned in the third item of the will until the youngest child shall have arrived at the age of 21 years, and that time has not yet arrived. Testator having died before his youngest child arrived at the age of 21 years, the directions in item fourth of the will indicate plainly the intention of the testator that all of his real and personal estate, after payment of his debts and funeral expenses and costs of administration, should be, until such time as the youngest child arrived at the age of 21 years, used for the joint support and maintenance of the four children named in the third item of the will “ until such time as they (severally) shall become of age of twenty-one years.” It is clear that the entire income of the estate is devoted, pending the time fixed for the distribution thereof, to the support of four children, who are permitted to use and occupy- all fhe real estate and use all the personal property jointly until such time as the youngest one arrives at the age of 21 years, and, in case the son Clarence Bailer, because of his death, is unable to provide a home and support for his younger brother and sister until that time, the executor is charged with the duty of seeing that the use, rents, and profits aforesaid are used for the support of the remaining children. It appears that, Clarence Bailer having deceased, a guardian was appointed, and that she undertook the care, and support of the minor children, and that she expended money in that behalf. ' I do not believe that it was intended by the testator that each of said four children mentioned in the third item of the will should have just an equal proportion of the income of said estate devoted to his or her particular support. The intention was that, so far as it was sufficient, the income of the estate which the testator left behind him should be used to do for his children what he himself, if living, would have done, which might involve, of necessity, the expenditure of very much more on account of one child than on account of another. The duty of this disposition of property is devolved, by request, upon the son Clarence Bailer, failing which, the executor is charged with the same responsibility, not as a matter of personal superintendence of the children, nor as one entitled to seize, hold, or use any part of the estate, but as one entitled by virtue of his office to prevent waste or the gain of undue advantage of one of the tenants in common for years of the estate over another or the others. The amount of the estate, according to the inventory, was only $1,882.47, over and above claims allowed, and the income is necessarily a small one, not enough to support four children in idleness, but sufficient to aid in time of distress or sickness. It is probable that, barring sickness or accidents, the youngest child will receive the largest share of the income of the estate.

It was not proper, however, to interject into this proceeding, by cross-bill or otherwise, the account of the guardian. This estate should be settled in the probate court. Upon the order of that court, the executor, if he thinks the order made a proper one, may pay over to, the guardian such sum as he is directed to pay. ' All interested parties should have the right to appóal from the order directing payment. It does not follow, as a matter of course, because the guardian has expended money for one of the children, that she shall be repaid by the executor. The amount of the fund, the necessity for the expenditures, the purpose of the testator, are all to be considered. If there shall be accumulations from rents and profits, they will be reported and become a portion of the estate for final distribution.

The decree will be modified, the fifth and sixth provisions thereof in accordance with the views here expressed, and, as modified, affirmed. No costs will be - awarded either appellant. The complainant will be paid his costs of the appeal, to be taxed out of the fund in his hands.

McAlvay, Grant, Hooker, and Moore, JJ., concurred.


text:
    ROBERTS v. SHOLES.
    Cancellation of Instruments — Fraud—Equitable Remedy.
    A bill alleging that complainant employed defendant as attorney to procure for him an outstanding title to certain land which complainant had previously sold by warranty deed, and that defendant fraudulently and collusively. procured the transfer of the title to a third person, who afterwards transferred to defendant’s partner, who in turn conveyed to complainant for a price much in excess of that which defendant had paid, states a case which entitles complainant to the equitable remedy of cancellation of the note given by complainant to the defendant’s partner as a part of the purchase price.
    Appeal from Sanilac; Beach, J.
    Submitted February 2, 1906.
    (Docket No. 92.)
    Decided May 24, 1906.
    Bill by William Roberts against Albert S. Sholes, Charles F. Gates, and Frederick C. Ballard to establish complainants’ title in certain land, and to restrain the prosecution of an action at law. From an order overruling a demurrer, defendant Ballard appeals.
    Affirmed.

      Avery & Walsh {E. G. Babcock, of counsel), for complainant.

      Frederick G. Ballard, in pro. per.
   McAlvay, J.

This is an appeal from an order overruling a demurrep. Complainant in his bill of complaint alleged: That in March, 1896, he obtained from the auditor general a State tax deed for delinquent taxes for 1891-92, of certain land in Sanilac county, and caused the same to be duly recorded. That he went into possession after his purchase and began clearing and improving the land, which at that time was valued at $650, and is now of the value of $1,000. The original title of record of this land was in four persons, named Fulton, of Canada. That after such purchase complainant consulted defendant Gates, an attorney, concerning the validity of his title, and was advised by him that it was a perfect title, and he would be safe in giving a warranty deed thereof to one Mary Van Marter, a purchaser with whom he had been negotiating. That, relying on such advice, he sold to her by warranty deed. That the owners of the original title threatened proceedings to get possession of the premises, claiming the tax deed was not valid, and thereupon complainant consulted with and employed Gates as his attorney to protect his interests. Afterwards, by reason of certain decisions of this court made at that time, he was advised by Gates that the title under said tax deed was doubtful, and, to protect his warranty, it was necessary to obtain the original title, which Gates, at his request, agreed and undertook to do. That on December 20, 1899, Gates secretly and fraudulently obtained a conveyance from the Fultons to defendant Sholes. That these defendants conspired together and did this for the fraudulent purpose of compelling complainant to pay a large amount for the original title and this was done while Gates was acting as attorney for complainant in purchasing this title for him upon knowledge of facts received from him while so acting and all without his knowledge or consent. That defendant Ballard, who had entered into 'partnership in the practice of law with Gates, in furtherance of said fraudulent conspiracy, procured from Sholes, February 25, 1903, a quitclaim deed of this land to complainant who paid him as consideration therefor $77.50 cash, and gave him a promissory note for $425, which he was compelled to do in order to obtain the original title. At this time, when these deeds were turned over to him, complainant first knew that Gates had obtained the deed from the Fultons to Sholes, instead of to complainant; that but $150 was paid by Gates for this title; that no request was made by Gates for the money which complainant was ready and willing to pay, and now offers to pay as the court may direct. Complainant alleges these transactions were a fraud upon him, and were so intended; that the title procured by his attorney, Gates, in the name of Sholes, in equity belonged to him; that the note was without consideration and fraudulently procured from him. He sets up that Ballard has sued him upon said note in Sanilac county, and the suit is now pending. He prays that the title conveyed to Sholes may be decreed to have been made for his benefit, and the same may be confirmed in him; that the note may be decreed to be without consideration and void, and to be delivered up and canceled, and the suit pending upon said note be temporarily and perpetually enjoined; and for general relief.

Defendant Ballard interposed a demurrer upon two grounds — adequate and complete remedy at law, and laches. From the facts set up in his bill, and the relief prayed for by complainant, the case clearly comes within that class of cases held by this court to entitle him to relief in a court of equity. John Hancock Mut: Life-Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566); Fred Macey Co. v. Macey, 143 Mich. 138; Hamilton v. American Hulled Bean Co., 143 Mich. 277. The record does not show that complainant has been guilty of laches.

The order overruling the demurrer .is affirmed, with costs, and the cause is remanded, with permission to defendant to answer the bill of complaint in accordance with the rules of the court.

Grant, Ostrander, Hooker, and Moore, JJ., concurred.


author: Moore, J.

text:
    FIDELITY MUTUAL LIFE-INSURANCE CO. v. BLAIN.

    1. Equity— Cancellation — Injunction — Restraining Suit at Law — Grounds.
    Equity may entertain a bill to enjoin a suit already begun on a life-insurance policy and cancel the policy though the grounds alleged may be urged in defense of the suit at law.
    2. Life Insurance — Action on Policy — Defenses—Suicide.
    On a bill to restrain a suit on a life-insurance policy and cancel the policy, evidence examined, and held, to support the finding of the jury that insured committed suicide.
    Appeal from Wayne; Brooke, J.
    Submitted February 7, 1906.
    (Docket No. 102.)
    Decided May 24, 1906.
    Bill by the Fidelity Mutual Life-Insurance Company of Philadelphia, against Alexander W. Blain, executor of the last will and testament of August Bender, deceased, to cancel a policy of insurance, and to restrain an action at law. From a decree for complainant, defendant appeals.
    Affirmed.

      Maybury, Lucking, Emmons & Helfman, for' complainant.

      William Look (Charles Flowers, of counsel), for defendant.

       Rehearing denied November 7, 1906.

   Moore, J.

August Bender had a policy of insurance in complainant company. He died as a result of a shot from a revolver. The insurance company declined to pay the insurance, claiming it was obtained by means of false statements made in the application, and also because Mr. Bender committed suicide, which avoided the policy. Suit was commenced upon the law side of the court to recover the amount claimed to be due under the policy. The complainant then filed the bill of complaint in this case to restrain the action at law and tb cancel the policy. In addition to filing an answer to the bill of complaint, the defendant filed a cross-bill, in which it claimed the policy of insurance was valid, that August Bender died as the result of an accidental shooting, and asked that the insurance company.be required to answer the cross-bill, that a subpoena might issue to it, and that a decree might be entered against it for the full amount of the policy. To this cross-bill the insurance company interposed an answer. The defendant filed a replication, and later demanded “that a jury be impaneled to try the issues of fact involved in the above-entitled cause in accordance with section 462, 1 Comp. Laws of 1897.” A jury was impaneled and testimony taken, which has resulted in a printed record of nearly 700 pages. The jury found that August Bender committed suicide. The circuit judge who heard the case expressed himself as satisfied that the jury reached a correct result upon the question of suicide, and entered a decree in favor of complainant. From a decree in favor of complainant, the case is brought here by appeal. .

The first question involved is whether the court in chancery should entertain a bill of complaint of this character after the suit at law was begun. It is the claim of the solicitors that it is a well-settled rule of law that a court of equity will not usually enjoin an action at law on grounds which may be urged as a defense to such action, and that this was such a case. To sustain this claim of counsel it would be necessary to overrule John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566), and Mactavish v. Kent Circuit Judge, 122 Mich. 242. Counsel ask us to do this. In the opinion in the last-named case, it was said of the opinion in the former case that it was carefully considered, and we are still of that opinion and are not inclined to overrule it. See, also, the opinions in Fred Macey Co. v. Macey, 143 Mich. 138.

We do not wish to be understood as holding that a circuit judge is imperatively required to interfere by in junetion to restrain proceedings at law in every case where the equity jurisdiction is invoked. The authority to do so exists, but whether a preliminary injunction should issue depends upon the circumstances of each case and rests in the legal discretion of the circuit judge.

“Where the existence of a concurrent jurisdiction is recognized, whether it will be exercised or declined rests largely in the discretion of the court; considerations as to the adequacy of the legal remedy controlling the exercise of such discretion.” 10 Cyc. p. 36.

We now come to the other questions, but we think a conclusion as to one will make a consideration of the others unnecessary. Did August Bender commit suicide? The jury answered the question affirmatively. The circuit judge thought they answered it correctly. It would profit no one for us to select from the long record the testimony tending to show suicide, and that supporting the theory of an accidental shooting. We shall content ourselves by saying that a careful study of this record satisfies us that the jury and the circuit judge were right in their answers to the question.

The decree is affirmed, with costs.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.