author: Christiancy, J.

text:
    Amelia Berger v. John C. Jacobs.

      Married wotnen: Action- for personal injuries. Under the statute of this State,— Comp. X,, § S202, — a wife may maintain an action in her individual name, without joining her husband, for an assault committed on her. Damages for such injuries, when recovered, will become her individual property, which she can release before judgment, or appropriate afterwards. For the injury sustained by the husband, for loss of service, etc., he can maintain an action in his own name. •

      Heard July 7.

      Decided July 12.

    Error to Wayne Circuit.
    This Avas an action on the case brought by Amelia .Berger in the Circuit Court for the County of Wayne against John, C. Jacobs for an assault and battery committed by the defendant upon the person of the plaintiff, who was, at the time the cause of action arose, and so continued to be up to the time of the commencement of the action, a married woman. The defendant pleaded the general issue.
    On the trial, the question, Avhick is brought into this Court for review, was raised by the request of the defendant to the Court to instruct the jury that the plaintiff, being a married woman, could not maintain this action without joining her husband as co-plaintiff. The Circuit Judge so charged; to which the plaintiff excepted. A verdict was taken for the defendant, and the judgment entered thereon is brought into this Court by writ of error.

      S. Larned and F. A. Baker, for plaintiff in error.
    I. When a feme covert in an action ex clelicto has no interest whatever in the subject matter of the action, and consequently ought not to be made a party, and she sues either with or without her husband, the defendant will obtain a non-suit on the trial. But where the feme was legally interested before or during her coverture, in the subject matter of the action, and might properly join with the husband, but sues alone, her coverture can only be pleaded in abatement, and cannot be given in evidence under the general issue.—1 Chitty on Pleadings, 75: 449; Coan v. Bowles, Carthew, 123; Milner v. Milner, 3 T. R., 627; Bates v. Stevens, 4 Vermont, 545. In the case at bar, the legal interest in the damages sought to be recovered was in the plaintiff, — the only objection to her suing alone being that she was under a disability.—Everts v. Everts, 3 Mich., 580.

    But even if the husband had been jointly interested with his wife in the subject matter of the action, still the ruling of the Court below, was erroneous; for it is well settled that in actions ex delicto, and which are not for the breach of a contract, if a party who ought to join be omitted, the objection can only be taken by plea in abatement, or by way of apportionment of the damages on the trial; and the defendant cannot, as in actions in form ex contractu, give in evidence the non-joinder, as a ground Of non-suit, under the plea of the general issue.—1 Chitty on Pleadings, 66; Frazier v. Spear, 2 Bibb, 385; Gilbert v. Dicker

      son, 7 Wend., 449; Pickering v. Pickering, 11 N. H., 141. But in actions ex contractu, as well as in actions ex delicto, the only consequences of a mistake in the proper parties in the ease of baron and feme, are, that when a married woman might or should be joined in the action with her husband, but sues alone, the objection can only be pleaded in abatement.—1 Chitty on Pleadings, 33; Newton v. Robinson, 1 Taylor, (N. C.) 72; Morgan v. Painter, 6 T. R. 265.

    II. We have seen that even at common law the ruling of the Circuit Judge was erroneous; but we also call the attention of the Court to the question as affected by the Married Women’s Act of 1855, sec. 8 of which allows them to maintain actions relating to their sole property, in their own names. — Comp. Laws, § 3294-

    Property in chattels personal may be either in possession or in action.— 8 Bl. Com., 388. The only question, therefore is, whether the damages recoverable in a civil action for an assault and battery, are a chose in action, so as to be a personal chattel, or, in other words, personal property. It séems that Blackstone was of the opinion that all property in action depends entirely upon contracts either express or implied — 3 vol., 897; but Chief Justice Sharswood, in his edition of Blackstone’s Commentaries, appends the following note: “ It is certainly an error to say that all property in action depends upon contracts express or implied. There is a very large class of choses in action which arise ex delicto. My claim to compensation for an injury done to my person, reputation, or property, is as truly a chose in action as where it is grounded on a breach of covenant or contract. It is true that, in general, an action for a tort to my person or reputation, if not prosecuted to judgment in the lifetime of the parties, dies, — actio personalis moritur cum persona; but as to torts to the property by various statutes generally adopted in the United States, it is not so.”
    In Michigan we have not only statutes similar to those above mentioned, but also a statute by which actions of assault and battery and false imprisonment survive to a person’s executors and administrators.—Comp. Laws, § 1208; Gillett v. Fairchild, 4 Denio, p. 80.

    The damages occasioned by an assault and battery being property, the only remaining question is, whether they are, when sustained by a married woman, her sole property.

    Section 1 of the act of 1855 provides “ that the real and personal estate of every female acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations and engagements of her husband,” etc.—Comp. Laws, § 3292.

      H. M. Cheever, for defendant in error.
    Can au action of trespass for an assault and battery committed upon a wife during coverture, be maintained in the name of a feme covert, without joining the husband ? This is the only question presented by this case.
    At common law, no action can be supported by a married woman without joining her husband. When an injury is committed to the person of the wife during coverture, by battery, etc., the wife cannot sue alone in any case, and the husband must join if the action is brought for the personal suffering or injury to the wife. If the husband die before judgment the damages survive to the wife.—1 Chitty’s Pl., 83; Everts v. Everts and wife, 3 Mich., 581. If the battery deprived the husband of the wife’s company or assistance, of course lie must sue alone, but in no event could the wife alone maintain the action.
    But it may be claimed the coverture should have been pleaded in abatement. We insist that the general rule that in torts the non-joinder of a co-plaintiff must be pleaded in abatement, has no application to a case where the party suing has no legal interest in her own right in the subject matter of the action.
    The effect of marriage at common law was to create one person of the husband and wife.—Co. Litt., 112 a; 1 Bl. Com., 442. The coverture was a transfer to the husband of person, property and actions. The -wife alone had no legal existence. The husband remained sui juris, to the same extent as before marriage. An injury to the person of the wife then, during coverture, was an injury to the husband, as the only person known to the law. A right of action was in him alone: First. For all injuries which deprived him of her society, help or labor. Second. For all injuries which compelled him to incur expense f$r her recovery or nursing, and by joining her in the action. Third. For injuries to her person which did not involve either loss of service, society, or expense on her account. So we say an objection that the husband ought to have been joined is one which goes to the right of action in the one who does sue, and it is not necessary to plead it is in abatement.—See 1 Chitty’s Pl., 83.

    And there is nothing in the statutes relative to the rights of married women, which changes the common law so as to permit her to sue alone.
   Christiancy, J.

The only question in this case is, whether an- action of trespass for an assault and battery committed upon a wife, can be maintained by her during coverture without joining the husband as co-plaintiff.

At common law all the wife’s choses in action, if reduced to possession during the coverture, belonged to the husband, though on the death of the husband before being recovered by him, they survived to the wife. And in an action like the present, the damages, when recovered, would have belonged to him. But this was also the case with reference to bonds and other rights or choses in action due to the wife before marriage, or accruing to her afterwards during the coverture. But the wife was required to be joined as a •co-plaintiff in all cases both of tort and contract, in which, if the husband should die, the right of action woirld survive to the wife. And as the damages in the case of an .assault and battery would survive to the wife, upon the ■death of the husband before their recovery, the husband ■could not sue alone for the personal suffering or injury to the wife, and the declaration was required to conclude to ■their damage and not to that of the husband alone.—Chitty’s Pl., 73.

In such a case, therefore, the action, though it could not be brought in the name of the wife alone, yet was in her right to the same extent, and for the same reason, as in .actions for the recovery of mere debts and other choses in action which became due to her before marriage.

By the first section of our statute in reference to “the rights of married women” (Comp. L., § 3292), “The real and personal estate of every female acquired before marriage, and all property real and personal to which she may afterwards become entitled by gift, grant, inheritance, devise ■or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, and engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed by her in the same manner ■and" with the like effect as if she were unmarried.”

"We think within the fair intention of this section, the right to recover damages for her personal injury and suffering from an assault and battery committed upon herself, should be placed upon the same ground as choses in action or pecuniary claims, or rights accruing to her during the coverture; that such damages when recovered would, under this statute, constitute a part of her individual property. She could therefore, we think, release such damages, before or after action brought, or appropriate or convey them when recovered, in the same manner as if unmarried; and the husband has no right in, or control over, the action. And under the third section of the statute, we think she is clearly entitled to maintain the present action in her own name. But, on the other hand, for any damages accruing to the husband from the assault and battery upon the wife, as for loss of her assistance and society and the expenses to which he may have been put in nursing and curing her, he alone could sue. •

We think, therefore, the Circuit Court erred in holding that the present action could not he sustained in the name of the wife alone.

The judgment must be reversed with costs, and a new trial awarded.

The other Justices concurred.


source: Caselaw Access Project

author: Graves, J.

license: Public Domain

text:
    The People v. Virginia Doyle.

      Evidence; Competency; Relevancy: Criminal intent. In determining tlie admissibility of evidence, it is indispensable to consider tlie object for wbicli it is produced, and the point intended to be established by it; and though evidence offered may have a tendency to prove a fact inadmissible, or irrelevant under the issue, it cannot be excluded for that reason, if its tendency be also to prove a fact which is within the issue, or has been made relevant by the course of the examination.
    Whether, on the trial of an information for an intent to Mil by poisoning, it be competent to prove a recent attempt to poison, ,or who prepared food a few days prior to the attempt laid in the information, hy which the same person was made ill, for the purpose of showing the criminal intent charged Qumre ?

      Heard July 7.

      Decided July 12.

    Exceptions certified from the Recorder’s Court of the city of Detroit.
    Virginia Doyle was charged on the information before the Recorder’s Court of the city of Detroit, with the offense of mingling poison (arsenic) with port wine, on the 23 d day of February, A. D. 1870, with intent to kill one Catherine DeBaptiste. She was convicted, and a bill of exceptions settled and certified to this Court, under the statute.
    Upon the trial, one George Taliaffero was called as a witness, and he having given evidence tending to show that on the 23d day of February, A. D. 1870, the defendant had mingled poison with some wine which his grandmother, Mrs. Catherine DeBaptiste, drank, and that said grandmother was ill after drinking said wine, was asked by counsel for the People whether his grandmother was ill, a few days previous to the 23d, from eating mush. To this question the defendant’s counsel objected on the ground that the prosecution could not prove any other offense different from that alleged in the information, or any previous acts, whereupon the question was withdrawn.
    Upon cross-examination by the counsel for the prisoner, he testified that he did not know that his father left him any property. Upon further cross-examination, in response to a direct question, he testified that he was the only surviving child of the prisoner, that he had lived with his said grandmother nearly all his life, that his father (the first husband of the prisoner) was dead, and left a lot on Beaubien street, which went to him after his mother’s death, and another lot which went to his mother (the prisoner) after his grandmother’s death, and then, after his mother’s death, to him, and that his said grandmother had been ill since the Friday night before the said 23d day of February, and that his said grandmother had, upon said previous Friday night, eaten of some mush which he thought was poisoned, and had also partaken of some beef tea and gruel, prepared by the boys, and was ill after eating of each of said articles, administered at two different times before said 23d.
    He was then re-examined by the counsel for the People, and asked this question: “ Who made the mush your grandmother ate that Friday night P” To which question counsel for the prisoner objected as immaterial and irrelevant to the issue, and as tending to prove another and distinct offense. The Court overruled the objection, and admitted the evidence. To which ruling counsel for the prisoner excepted. The witness then answered: “ My mother made it.”
    Counsel for the People then called Mrs. Catherine Do Baptiste, who, having given evidence tending to show that the prisoner’s conduct to her upon the night of the 23d, after she took the alleged poisoned wine, was strange, and her treatment of her unaccountable, was cross-examined relative to her feelings towards the prisoner, and then, upon re-examination, was asked by counsel for the people this question: “What was the treatment of the boys (Ellis and George) to you during this time?” To which question counsel for the prisoner objected as immaterial and incompetent. The Court overruled the objection, and admitted the question. To which ruling, counsel for prisoner excepted. The witness then answered: “They were as kind as they could be.”

      H. M. & W. E. Cheever, for defendant.
    I. The general rule, that the evidence should be confined to the issue, should be enforced strictly in a criminal case.—1 Bishop on Crim. Pro., § 490; U. S. v. Mitchell, 2 Dall., 348; 1 Phil. Ev., 178; Barton v. State, 18 Ohio, 221; Rex v. Butler, 2 C. & K., 221; Farrer v. State, 2 Ohio St., 54; People v. Lightfoot, 16 Mich., 511.

    The consequence of placing before the jury facts tending to prove another offense is to raise a presumption of guilt as to the offense for which the prisoner is on trial, and secure a conviction by irrelevant testimony.—Foster, 245; 3 Minn., 262. See also Birdeye’s case, 4 C. & P., 386.

    This case can hardly come under that exception to this general rule, which admits evidence of other transactions, which, by reason of the time of their commission, are a part of the offense charged. There was no such connection between the two offenses (if the first was an offense) that proving the one tended legally to prove the other. It might tend to show moral turpitude in the prisoner, but it was not legal evidence. Its effect was necessarily to prejudice the mind of the jury.
    II. The kindness of other parties to the person whose life the prisoner was charged with attempting to take, was entirely irrelevant to the issue. Its only tendency was, by contrast, to prejudice the jury against her. If it had such a tendency it ought to have been excluded.

      Dwight May, Attorney General, for the People.
    I. There was no error in' permitting the question —“ Who made the mush your grandmother ate that Friday night?” — to be answered. The object of the cross-examination is apparent. It was to raise a presumtion that “the boys ” poisoned the mush, and not the defendant; and it was certainly competent to show bjr the same witness that the defendant prepared the mush.

      It appears from the record that this subject was called out on cross-examination, and the People had the right to repel, by the witness, any presumption arising from such examination, that other parties administered the poison.
    II. Intimately connected with the last exception, is the second and only other error alleged. It seems to have been a part of the defense to attempt to show that the boys (Ellis and George) had something to do with the poisoning of Mrs. DeBaptiste, and to rebut any such presumption she was asked, “'What was the treatment of the boys (Ellis and George) to you during this time?” This was clearly competent. It grew directly out of the defense, and the answer of the witness that “They were as kind as they could be ” ivas admissible to go to the jury to show the relation between herself and the boys.
    In any view that may be taken of the question, it is difficult to see how any injury could possibly result to the defendant if she was innocent of the crime charged.
    III. The record does not pretend to give even a synopsis of the testimony in the case; it only pretends to give so much of it as to show how the questions arose. The exceptions found in the record being untenable, the presumption is that there was sufficient evidence in the case to warrant the conviction.
   Graves, J.

The defendant was tried in the Recorder’s Court of Detroit upon an information charging her with having on the 23d day of February, 1870, mingled poison with wine Avith intent to kill one Catherine DeBaptiste. The jury having returned a verdict oí guilty against the defendant, she alleged exceptions, which being allowed, have been duly certified to this Court before judgment. The case presents but two questions, and they arise upon the admission of certain evidence against the objection of defendant.

One George Taliaffero, a grandson of Mrs. DeBaptiste, having given evidence on the part of the People tending to show that his mother, the defendant, had mingled poison with wine which his grandmother, Mrs. DeBaptiste, drank on the 23d day of February, 1870, and that the latter was ill after drinking the wine, was asked by the prosecuting attorney whether his grandmother was ill a few days previous to the 23d from eating mush. But this being objected to by defendant’s counsel, on the ground, as stated, that the People could not prove any other offense distinct from that charged, or any previous acts, the question was withdrawn. The witness, being then cross-examined by the prisoner’s counsel, testified that he did not know that his father left him any property, and further, that he, the witness, was the only surviving child of the prisoner; that he had lived with Mrs. DeBaptiste, his grandmother, nearly all his life; that his father, the first husband of the-prisoner, was dead, and left a lot on Beaubien street which went to him after his mother’s death, and another lot which went to his mother, the prisoner, after his grandmother’s death, and then, after his mother’s death, to him; and that his said grandmother had been ill since the Friday night before the said 23d day of February; that his said .grandmother had upon the Friday night before mentioned eaten of some mush which he thought was poisoned, and had also partaken of some beef tea and gruel, prepared by the boys, and was ill after eating of each of such articles administered at two different times before said 23 d of February. The witness, being then re-examined by the prosecuting attorney, was asked this question: “ Who made the mush your grandmother ate that Friday night?” when the prisoner’s counsel objected to the question as immaterial and irrelevant, and also as calling for testimony tending to prove another and distinct offense. The objection was overruled and the witness answered, “My mother made it.”

It is urged on behalf of the prisoner that this evidence tended to prove the commission of another offense, and was therefore inadmissible, and that the previous testimony of the witness on cross-examination as to the illness of Mrs. DeBaptiste on the Friday mentioned, and the cause of that illness, could not justify its introduction, since the testimony drawn out by the cross-examination as to the mush had no tendency to connect the prisoner with the making or giving of it. Whenever a question is made upon the admission of evidence it is indispensable to consider' the object for which it is produced, and the point intended to be established by it. For unless this precaution is observed, a piece of evidence clearly admissible under the view and in reference to the circumstances in which it is offered, may be disallowed upon an irrelevant objection. It frequently happens that an item of proof is plainly relevant and proper for one purpose, while wholly inadmissible for another, which it -would naturally tend to establish. And when this occurs, the evidence when offered for the legal purpose can no more be excluded on the ground of its aptitude to show the unauthorized fact, than its admission to prove such .unauthorized fact can be justified on the ground of its aptness to prove another fact legally provable under the issue. While we desire not to be understood as admitting that it ivas incompetent for the People to give evidence of a prior attempt by the prisoner a short time before that charged in the information and of the same nature, as bearing upon the question of intent, we find no occasion in the present case to consider that question, since Ave think it quite apparent that the testimony objected to Avas offered and received for a very different purpose.

The prosecuting attorney on the direct examination inquired of the witness as to the previous illness of Mrs. DeBaptiste, but withdrew the question upon the objection of the prisoner’s counsel. But the course of the cross-examination of the same witness upon this subject, and upon other facts, had a tendency to raise an inference that the poisoning was perpetrated by this witness and an associate mentioned, and not by the prisoner. And it was certainly competent for the People, upon re-examination of the same witness in relation to the same matters, to call out anything omitted by the cross-examination, and not objectionable in point of form, which would be calculated to exclude such inference.

The obvious purpose of the inquiry on re-examination, as to who prepared the mush which the old lady ate on Friday, was simply to clear up that subject, and to enable the jury to estimate correctly the facts drawn out upon cross-examination.

We think this was entirely proper, and that the objection taken was inapplicable under the circumstances.

Mrs. DeBaptiste having given evidence for the People tending to show that the prisoner’s conduct towards her after the wine was taken on the evening of Friday, was strange and unaccountable, and .having testified on cross-examination as to her feelings towards the prisoner, was allowed on re-examination to state, under objection, that the witness, Taliaffero, and his associate before referred to “were as kind as could be” to her during the transaction, and this presents the remaining question in the case.

It is claimed that this was entirely irrelevant and tended to prejudice the prisoner by contrasting her deportment towards the old lady with that of other parties.

We think, however, that this testimony was clearly relevant. We have already alluded to the course of the defense, as calculated to induce an impression that the act charged upon the prisoner might have been done by these parties, and in reference to that, it was competent to show by the old lady herself, that their behavior and relations to her were amicable and hind.

The exceptions are overruled, and the Recorder’s Court will proceed to award judgment upon the verdict.

The other Justices concurred.


author: Campbell, Ch. J.

text:
    Erastus Ryan et al. v. Florilla Andrews.

      Descent of ancestral lands: Whole or half blood. §28X6 of the Compiled Laws is not to be construed to divert tbe descent of an ancestral inheritance from, the nearest of kin; but if there are several next of kin in the same degree, who are not all of the same blood, then, only such of them will take as are of the same blood as the ancestor from whom the estate was derived.

      Heard July 7.

      Decided July 12.

    Error to Clinton Circuit.
    This was a petition filed in the Probate Court for the County of Clinton, under the provisions of act No. 53 of Laws of 1867, by Florilla Andrews, to ascertain, by the determination of that Court, who are the legal heirs of John W. Ryan, and who are entitled to the lands of which the said John W. Ryan died seized, he dying without issue, and being, at the time of his death, unmarried and a minor, under seventeen .years of age. The lands of which he died seized he derived by inheritance from his father, ■ Lovell Ryan. He left surviving him no brother nor sister; no paternal grandparent; no maternal grandfather; and no paternal uncle nor aunt, or the issue thereof of the whole blood. He left surviving him paternal uncles and aunts, and aunts of the half blood, who are the respondents to the petition. He left surviving him, also, a maternal grandmother, Olive Crow, under whom the petitioner, Florilla Andrews, claims by purchase, and maternal uncles and aunts, of whom the petitioner was one.
    The Probate Judge determined that the paternal uncles and aunts, being of the half blood of the ancestor, Lovell Eyan, from whom the inheritance descended, were the heirs of John W. Eyan, in respect of the ancestral inheritance, to the exclusion of his grandmother, who was not of the blood of the ancestor.
    The cause was carried by appeal from the Probate Court to the Circuit Court for the County of Clinton, where the decree of the Probate Court was reversed, and it now comes before this Court by writ of error.

      E. McCall and H. Walbridge, for plaintiffs in error.
    The only question involved in this case is who of the kindred named are the legal heirs, and entitled to take the property in question. — Cornp. L., § 2812.

    The subdivisions six and seven apply to the brothers and sisters of the intestate and their issue, and require that they should be of the blood of the ancestor, if the estate is ancestral, in order to inherit his estate; clearly precluding the half brothers and sisters of the intestate, and their issue, unless they are also the issue of the same parent of the intestate from whom the inheritance was derived, reference being made to the above subdivisions of section one, to assist in the proper construction of (2816) section five of the same chapter, which applies to all cases not included in subdivisions six and seven of (2812) section one, and excludes from the inheritance all the kindred of the intestate who are not of the blood of the ancestor, if the inheritance is ancestral.
    The phrase, in which case, refers to the estate being ancestral. The word those refers to kindred as its antecedent, and is given a general application by the word all, and means all those kindred of the intestate, whether of the half or whole blood, and is limited only by the sentence, who are not of the blood of the ancestor. The language is clear and explicit, and simply' means that all those kindred who are not of the blood of the ancestor shall be excluded from the inheritance.
    The Legislature evidently intended to declare the rule to be in case of ancestral estates as stated in 4 Kent’s Com., pages 460, 463: “ If the estate is ancestral, it passes to the kindred who are of the blood of the ancestor from whom it came.” Also, 2 Washburn on Real Property, 402; 2 Hilliard, 203.

    Where lands descend to a person on the part of the father, none of his relatives on the part of the mother can inherit them.—Greenleaf Com. on Real Property, 2 Vol., pages 158, 157, 156, 155, which is also declared to be the rule in the following States: Arkansas, 2 Washburn, 413; California, ib., 414; Connecticut, ib.; Indiana, ib., 416; Maryland, ib., 418; Minnesota, ib., 421; New York, ib., 423; New Jersey, ib.; North Carolina, ib.; Ohio, ib., 424; Pennsylvania, ib., 425; Rhode Island, ib., 426; Tennessee, ib., 427; Wisconsin, ib., 428.

    To construe section (2816) five to exclude only kindred of the half blood from the inheritance who are not of the blood of the ancestor, if the estate is ancestral, is not correct, for the reason, first, that it does not read so; and secondly, the Legislature evidently intended to place kindred of the half blood on an equal footing with those of the whole blood. To exclude those of the half blood for the reason that they are not of the blood of the ancestor, and not exclude the whole blood for the same reason, would be contrary to an intent to make them equal. There is no reason why a whole blood, who is not of the blood of the ancestor, should inherit an ancestral estate in preference to a half blood who is in the same condition. Such a construction would make a difference where there is no legal distinction.
    The law of New Hampshire makes no distinction between ancestral and acquired estates, for the purpose of descent; and the rule of that State, that a maternal grandmother is preferred to a paternal uncle or aunt, is based on her statute, and not a common-law rule.
    The estate of John TV. Ryan, deceased, came to him by descent from his father, Lovell Ryan, and cannot pass to the maternal grandmother, nor to any of the maternal kindred. The statute excludes them from the inheritance. The estate will pass to paternal uncles and aunts, they being the nearest of kin to the intestate of the blood of the ancestor.

      Gould & Lyon, for defendant in error.
    I. The real estate of John TV. Ryan descended to his next of kin, in equal degree.—Comp. L., § 2812, Subdivision 5. The provisos in subdivisions G and 7 of the same section have no application under the facts.
    II. The degrees of kindred are to be computed according to the rules of the civil law. — § 2816. The mode of computation of the degrees of kindred under the rules of the civil law are: 1st, father or mother. 2d, grandfather or grandmother. 3d, uncles and aunts.—20 N. H., 479; 1 Williams on Executors, pp. 344-5; 2 Williams, p. 1296; 2 Washburn on Real Property, 406, 411; 6 Wisconsin, 278.

    Therefore the grandmother is one degree nearer than the uncles and aunts of. either the whole or half blood, and the claimant who represents the grandmother is the nearest of tía of equal degree, and is therefore the heir of the deceased, and entitled to the land in controversy.
    But it is claimed that the latter clause of section 2816 controls the descent of the property in question, and that the grandmother (Olive Crow) not being of the blood of the ancestor through whom the intestate derived the land, therefore she cannot take, but the same will pass her and descend to the uncles and aunts who are of the half blood, because the property descended from the paternal line.
    It is not denied by us that the land in controversy descended from Lovell Ryan to John W. Ryan, but we claim that the whole of the clause referred to, relates to and only controls the descent of property to half bloods.
    The position must be taken that the section is divided into distinct and independent propositions: first, the mode of computing degrees of kindred; second, the rights of kindred of the half blood; and third, a proviso that kindred of the whole and half blood, who are not of blood of the ancestor from whom the land descended, shall not inherit.
    This construction cannot be maintained, because the word “unless” connects the declaration of the rights of kindred of the half blood, and turns the whole of the section that follows into a proviso or condition upon which such kindred shall inherit, in which case unless they are of the blood of the ancestor from whom the property descended they shall not inherit.
    And also because it would have the effect to tack on to subdivision five of section 2812, an additional proviso.
    The authority referred to in the margin of the statute (1 Paige. 562) shows that the reviser and compilers of the law agreed with our view of the section.
    This section is a copy of the New York statute referred to in that case, and the Court there construed the statute as we do.
   Campbell, Ch. J.

This case presents the single question whether property which descended to a decedent from his fathei* passes tó his maternal grandmother, who was not related to his •father, or to more distant relatives who were so related, in •exclusion of her claims as next of kin.

The whole matter depends upon the meaning to be .given to section 2816 of the Compiled Laws, which is as follows:

“The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ■ancestors, in which -case, all those who are not of the blood •of such ancestor, shall be excluded from such inheritance.”

It is claimed for the uncles and aunts in the paternal line that the maternal grandmother, who is one degree nearer the intestate, computing by the civil-law rules, comes under the exclusion provided by the latter part of this section, because under that no one can inherit except relatives of the blood of the father. This is on the hypothesis that the first as well as the second clause of the section is qualified by the last, so that leaving out the second clause it would provide that the degrees of kindred .should be computed according to the rules of the civil law, unless the property came to the deceased from an ancestor, in which case all who are not of the blood of that ancestor ■shall be excluded from such inheritance.

It would be difficult to make sense of such a regulation ; for there is nothing in the fact of an estate being .ancestral which should require the degrees of kindred to be •determined by one system any more than by another. It .is not nearness of kin, but kinship with the ancestor from whom the estate came, that the law seeks to discriminate, and if there had been a paternal grandmother as well as paternal uncles, there is no very obvious reason for allowing one to be held next of kin for ancestral property and the other for property not ancestral. Moreover, if this construction should prevail, it would follow that in the absence of paternal kindred the estate would escheat in preference to passing -to near kindred on the maternal side, which is also a result not to be needlessly attributed to the legislative intent.

The obvious and natural connection of the various provisions would confine the operation of the rule of exclusion to those cases where there is more than one person in the same degree of kinship, and where they are not all relatives of the blood of the ancestor from whom the estate is derived. This construction gives the property in all cases to the nearest kindred, but excludes such as are not of a particular stock. It avoids the incongruity of passing over near kindred for those who are remote, and satisfies all the words of the section, while it prevents very serious mischiefs.

We think, therefore, that under the statute the estate can under this section never go to any one else but the nearest of kin, according to the degrees of the civil law. If there is but a single next relative, he or she will take the whole estate without reference to whether the kindred is on the side of the one parent or the other. If there are several next of kin, and they are not all related on the same side, then only such of them will take as are of the blood of the ancestor from whom the estate was derived. In the present case, as there is no one else of the same degree of kindred with the maternal, grandmother, and she is nearest of kin, .the estate devolved solely upon her, and the remoter kindred are excluded.

The Circuit Court having come to the same conclusion, the judgment below must be affirmed with costs.

The other Justices concurred.


author: Cooley, J.

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    The People ex rel. Nelson B. Jones v. Benjamin D. Pritchard, Commissioner of the State Land Office.

      Legislative power; Primary School lands. Section 2 of Art. xiii of the Constitution, which provides that the income of the Primary School fund shall' be appropriated annually to the specific object for which the fund exists, does not deprive the Legislature of the power of regulating, from time to. time, the State policy regarding the Primary School lands as they shall deem proper.

      Amending statutes: Be-enactment: Beference to statute amended. It is not essential to the validity of an amendment of a statute, that the section as it previously stood should be set forth in full, as well as the section as amended.
    A section of the Compiled Laws having been amended, a subsequent amendment will not be invalid because it was made by reference to the number of the section as it stood in the Compiled Lawsthe amending act enacting that “it shall read as follows,” and the section, .as amended, being set forth at length.

      Heard July 7.

      Decided July 12.

    Applicatiou for mandamus:

    By Nelson B. Jones to compel tbe Commissioner of tbe State Land Office to issue a certificate for the purchase of lot 5, block 245, in the city of Lansing, of which the relator claims to be the purchaser on the 28th of October, 1869, at a sale of Primary School lands forfeited for nonpayment of interest. The -relator sets forth in his petition, that the Commissioner bases his refusal to issue the certificate upon the provisions of act No. 85 of the Session Laws of 1869, and claims that the relator is not entitled to a certificate for said lot until the expiration of one year from said 28th day of October, A. D. 1869, and that during said time the lot is subject to redemption.

      Dart & Wiley, for relator.
    I. Section 2 of Article XIII. of the Constitution requires that the proceeds from the sales of Primary School lands shall be and remain a perpetual fund, the interest and income of which * * ***** shall be inviolably appropriated and omnually applied to the specific object of the original gift, grant, or appropriation.
    We claim that act No. 85 of S. L. 1869, in its pretended amendment of Sec. 2463 of O. L., is unconstitutional, in that it prevents the annual interest due upon the unpaid price for school lands being annually applied, but actually extends the time of payment of such interest between one and two years, placing it beyond the power of an annuiil application.—Newell v. The People, 7 N. Y., 9.

    II. Act No. 85 of S. L. 1869, is unconstitutional and void, as it does not conform to the requirements of Sec. 25 of Art. IV. of the Constitution of this State.—Langdon v. Applegate, 5 Indiana, 327; Rogers v. The State, 6 Indiana, 31.

    III. Act No. 85 of S. L. of 1869, so far as relates to the pretended amendment of See. 2463 of Compiled Laws, is a nullity. At the time of this pretended amendment there was no section 2463 compiled, or in the Compiled Laws, this section having been amended by S. L. of 1859, had wholly disappeared from the Compiled Laws, and was known as act No. 13 of S. L. of 1859, or Sec. 2463 of said act.—Smith’s Commentaries, § 784-6. If the section amended does not require republishing — IS Mich., 481 — the Legislature were required by Sec. 25 of°Art. IV. of the Constitution of this State to name this act revised, and in this case the act to be revised and amended was act No. 113 of S. L. of 1859, and not Sec. 2463 of C. L.
    IV. The petitioner having, at the annual sales, bid this lot at public auction, for the sum of $360, and paid the 25 per cent, required, he is entitled to have the certificate .issued to him in accordance with Sec. 2446 of C. L.

      S. F. Seager, for respondent.
    The only ground, upon which relator rests his claim to relief by the suit prayed for, is that the act under which the land in question was sold (act No. 85, Laws 1869), is unconstitutional, and that action of Commissioner must be governed by the law as it stood prior to the passage of that act. It is alleged that the act is in violation of said constitutional provisions:
    I. That it violates section 25, article IY. It purports to be an amendment of section 2463 of Compiled Laws. In 1.859 this section was amended by requiring owner of land to pay, upon redeeming, the expenses of appraisement and sale. — Latos 1859, p. 309. It is claimed the act of 1869 is inoperative, as it does not refer to the act of 1859; that it aims to amend a certain section of the Compiled Laws which had no existence.
    As to the effect of amendments similar in form to those of 1859 and 1869, see Ely et al. v. Holton, 15 N. Y., 597 After the amendment of 1859, a reference to section 2463 must mean that section as found not in the compilation of 1857, but as found in the laws of 1859. As to the particularity required in entitling acts, see People v. Mahoney, 13 Mich., 497; Cooley’s Const. Lim., 157. Even if position of relator be correct, and section 2463 had no existence at the time of the passage of the act of 1869, the purpose of the act is sufficiently defined in the title, and it would operate as new statute. '
    II. But the principal objection urged against the act of 1859, is that it is opposed to section 2, Art. XIII. of State Constitution.
    (a) The disposition made of the funds received on account of sales, etc., is all this constitutional provision seeks to control. The terms, upon which the school lands were to be disposed of, has been from tbe very first, left entirely to the Legislature. The price, and time of payment, is regulated not by the Constitution, but by statute. The act of 1869 makes the sale upon forfeiture, like the sale for unpaid taxes, — a conditional one. The moneys received upon such sale become the property of the State only in case of failure of the former owner to redeem. Until after such failure they are not a part of the income referred to in the clause of the Constitution cited.
    (5) The rights of the relator are in no way prejudiced by the disposition of the money paid by him at forfeited sales. The relator must show special injury from an alleged violation of a constitutional requirement, before he can ask the Court to pass upon the question.—Cooley’s Const. Lim., 163.

    The Superintendent of Public Instruction might very properly inquire into the disposition made of the school money, but the relator shows no interest in himself that would require the Court, at his request, to examine the constitutionality of the act of 1869. It is not the manner of conducting sale, but the disposition of proceeds, that the constitutional provision regulates, and though the act in question might, sd* far as relates to the proceeds of sale, be unconstitutional, the- relator’s rights are not affected; and even should the Court hold the act unconstitutional in that respect, it would by no means follow that relator was entitled to relief.
   Cooley, J.

A mandamus is applied for in this case to compel the Commissioner of the State Land Office to issue to the relator a certificate of purchase of a city lot in Lansing which was purchased by him at a sale of the same as forfeited school lands. The sale was made on the 28th day of October, 1869, and the purchase by relator is not contested, but the Commissioner insists that under the law then in force the previous purchaser, whose rights were forfeited, was entitled to a year’s redemption, and that the certificate of purchase could not issue to Jones until the year had expired without redemption being made. The relator, on the other hand, insists that the statute which purports to give the right of redemption is for various reasons unconstitutional and void.

The statute in question is act number 85 of the General Laws of 1869, which is entitled “An act to amend section 2435 and section 2463 of the Compiled Laws, relative to the payment of moneys by purchasers of the trust fund and swamp lands to county treasurers, and the forfeiture and redemption of said lands.” The first constitutional objection to this statute, as we understand counsel, is, that the amended section 2463 gives to the original purchaser a right to redeem forfeited school lands after a sale thereof which was not allowed under previous statutes, and thereby comes in conflict with section two of article thirteen of the Constitution, which requires the interest and income of the primary school fund to be “annually” appropriated to the specific objects for which the fund exists.-

If there is any validity whatever to this objection, it precludes the Legislature from making any change in the laws regarding the Primary School lands, the effect of which would be either to accelerate or postpone the payment of moneys that might come due upon the sales. According to the relator’s position, when a contract of purchase has once been made, the payments which it provides for in each year, belong to the fund which must be distributed that year under an imperative mandate of the Constitution, and however much it might be for the interest of the fund that new regulations should be made which should allow pay-merits at other periods, it is not in the power of the Legislature to make such regulations.

We are somewhat at a loss to know how to treat this argument, inasmuch as its unsoundness appears to us so clear that no effort at demonstration can make it more plain and palpable. The purpose of the constitutional provision was evidently as far as possible from any such consequences as the relator insists upon, and had nothing more in view than the periodical appropriation of the income received by the State from the Primary School fund to its proper and legitimate purposes. That clause did not propose to take from the Legislature the power of regulating from time to time the State policy regarding the Primary School lands as should be deemed proper; and if the result should be to increase or reduce the income for the year from the Primary School fund, the Constitution would nevertheless be complied with, both in terms and in spirit, if the sum actually received was properly appropriated. There is not, we think, the slightest reason to doubt that the act of 1869 was within the constitutional authority of the Legislature.

It is insisted also that the act in question is void, because, being amendatory of a certain section of a previous .statute, the section amended is not set forth and published at length, as required by section twenty-five of article four of the Constitution. The section as amended is given in full, but it is claimed that the section as it previously stood should have been given also. We do not tlii'nk this was the intention of the Constitution. It is a full compliance with the terms as well as the purpose of that provision, if the section as amended is ‘set forth at length, with such reference to the old law as will show for what the new law is substituted. See Tuskaloosa Bridge Co. v. Olmstead, 41 Ala., 9.

The only other objection to the act of 1869 is that it is inoperative, because it purports to amend a section of the Compiled Laws which had no existence. It seems that section 2463 of the Compiled Laws, which governs the case, had previously been amended by another statute; and the effect was, it is claimed, to repeal the section as it stood m the Compiled Laws, leaving the amendatory statute to stand instead thereof. And the argument is that a subsequent amendatory statute could not properly be entitled “An act to amend section 2463 of the Compiled Laws,” because there was no longer any such section, and an act thus entitled could have nothing to operate upon.

This reasoning seems to us too refined for practical value. Under our Constitution the mode of aniending a section of a statute is by enacting that the section in question “shall read as follows.” The position of the section in the original statute is not changed, and there is no reason why subsequent amendments of the same section should not be made by reference to its number in the original statute.

The mandamus applied for must be denied, with costs.

The other Justices concurred.


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    Garrett Stansell v. Warren H. Corning.

      Practice in the Circuit Court: Finding: Judgment. When a cause is tried by the Circuit Judge, without a jury, and a written finding of facts is seasonably demanded, until such finding, there is nothing oil which to found a judgment-The entry of judgment before the finding of fact's, when duly demanded, has no greater validity than a judgment after a jury trial, without a verdict.

      Heard July 9.

      Decided July 12.

    Error to Cass Circuit.
    This was an action of assumpsit brought by Warren H. Corning in the Circuit Court for the County of Cass, against Garrett Stansell. The plaintiff declared on the common counts in assumpsit, appending to his declaration copies of two drafts drawn by Corning & Co. upon the defendant. The defendant pleaded the general issue, and gave notice that the consideration of the drafts was for spirituous liquors, sold in violation of the laws of Michigan; that the liquors were sold by sample; that they were not equal to the sample, and were not of a merchantable quality.
    The cause was tried without a jury by the Circuit Judge, who was requested to find the facts in writing, and his conclusions of law thereon. The trial was concluded on the 20th day of January, 1870; and on the 14th day of March, during the succeeding March term, the Circuit Judge directed the entry of a judgment for the plaintiff for the whole sum claimed; and on the 12th day of April following, made and filed the finding and decision of the Court in writing.
    The defendant below brings the cause into this Court by writ of error.

      Edward Bacon, for plaintiff in error.
    H. H. Coolidge & Son, for defendant in error.
   Graves, J.

Considering the somewhat unsatisfactory manner in which this record is constituted, and the questions raised by it, we do not feel called on to examine it further than is found necessary to decide the case. It contains sixty assignments of error, but many of them merely question the correctness of the finding of facts by the Court below, and many others have no legal support in the facts found. And upon an inspection of the evidence contained in the bill of exceptions, and the answers of the Judge to the points submitted by counsel, we think it not improbable but that another trial will eventuate in a different finding of facts.

It appears that the case was tried before the Court without a jury, on the 20th day of January, 1870; that each party seasonably presented points in the nature of requests to charge, under rule 87 of the rules of the Circuit Court, and also requests for a finding in writing of the facts and conclusions of law, as provided by said rule and § SljSH Oomp. Laws. It also appears that the Court thereupon held the case for advisement, and at the next regular term held in March following, caused a judgment to be entered in favor of the plaintiff for 11,861.82, without any finding of facts, but thereafter, and on the 12th of April, made .a finding of the facts and law, which was filed.

The interval between the judgment and the finding of the facts in the case was about a month.

It is objected by the first and second assignments of error, that the entry of the judgment under the circumstances, in advance of the finding, was error, and I think the objection well taken.

When • a written finding is duly requested under the rule and statute a compliance by the Court is imperative, and the finding contemplated is of the nature of a special verdict, and is designed as a basis for the judgment in the cause, and until such finding there can be nothing on which to found a judgment. It is just as essential in legal contemplation that this finding should precede the judgment, as it is that a judgment should follow and not precede a special verdict; and in each case the judgment is the necessary conclusion which the law infers from the facts, and until these facts are regularly ascertained, there can be nothing from which such conclusion can result.

When the judgment is to depend upon the facts found by tbe Court, it is 'settled that the judgment may be overturned upon the ground that the facts found do not Support the judgment; and this being so, it must be conceded that the absence of any finding of facts whatever, must be equally fatal.

When the judgment in this case was rendered, it had no greater validity than a judgment in a jury trial without verdict. It was a judgment unsupported by facts found or verdict returned, a conclusion without premises, and has hitherto so continued.

The subsequent finding alone did not cure the error. As a finding subsequent to the judgment, it constituted an error, and it could not be the foundation of, a judgment already rendered without such foundation.

It is, therefore, seen that the judgment stands without any finding of facts to warrant it, and that the finding of facts remains without any judgment based upon it.

If the judgment may precede the finding one month, it may upon the same principle precede it twelve months, and such a practice would occasion serious difficulties. The judgment being entered, the time for bringing a writ of error would be running while the case would not be ripe for suing out the writ, and some accident might prevent any finding, although the judgment itself would be of record. .While it is true that the Judge is not imperatively required to make his finding on or before the first day of the succeeding term, still the'judgment to result from such finding cannot regularly be entered until the finding is made. See § 3440 Comp. L.

For the reason suggested, we think the judgment should be reversed and a new trial had.

The shape of the record, and the ground on which we dispose of the dase, induce us to abstain from discussing any other points than those already examined, but we deem it proper to say, that if the case was in condition to require an opinion upon the question as to where the contract for the liquors was made, we are not satisfied that we should concur with the Court below in the ruling on that subject.

The judgment is reversed with costs, and a new trial ordered.

The other Justices concurred.


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    The Ætna Live Stock, Fire & Tornado Insurance Company v. Jay Olmstead.

      Policy of Insurance: Application: Representation. Where a representation in an application for insurance was ambiguously expressed, and the applicant was at the time of making it, assured by the agent who acted on behalf of the insurers, and who filled out the application, that it correctly embodied the verbal statement made by the applicant to the agent; upon which assurance, under the circumstances of the case, the applicant might reasonably rely, the insurers will not be heard to say that the representations were not true, and thus, for that reason, avoid the policy.

      Agents of Insurance Companies. The agent of an insurance company, in the verbal explanations made by him as to the meaning of the terms employed in the forms of the company, will be regarded as speaking in the name of the com" pany; especially, when such terms relate to matters not generally understood: and when the applicant has reason to suppose that he has given the agent all the information desired, and as such it has been embodied m the proper form in the application, he will not be deprived of the indemnity the company contracted to give him, because of the unskillfulness, carelessness or fraud of the agent.

      Heard July 11.

      Decided July 12.

    Error to Wayne Circuit.
    This was an action upon a policy of insurance, brought in the Circuit Court for the County of Wayne, by Jay Olmstead, against the ¿Etna Live Stock, Eire and Tornado Insurance Company. The plaintiff declared specially upon the policy, and averred the loss in the usual form. The defendant pleaded the general issue, and gave- notice that it would prove that a wai’ranty in the application, as ’ to incumbrances, was false. The alleged warranty was con-tamed in the answer to the ninth interrogatory of the application, and was in the following words:
    “ 9. Incumbrance. — If any, state the amount. Is there any insurance by the mortgagees? State the amount. 9. No.”
    The questions to be reviewed in this Court, arise upon the charge of the Court, who on the request of the plaintiff instructed the jury:—
    1. If at the time of taking the application, C. W. Olmstead, the agent of the company, knew of the existence of the mortgages, they do not render the policy void, whether they were mentioned in the application or not. The knowledge of the agent is the knowledge of the company.
    And on the refusal of the defendant’s request to instruct the jury:
    1. That under the policy in this case the answer to the ninth interrogatory in the application is a warranty by the assured, and it being conceded that at the time the application was made the property was incumbered by way of mortgage to the amount of about four thousand eight hundred dollars, the policy is absolutely void, and the fact that the agent, C. W. Olmstead, knew at the time he took the application, of the existence of both mortgages does not in law constitute a waiver by the company of the warranty as to incumbrances, and the plaintiff cannot recover.

      2. That where the agent who takes the application does not issue the policy, as in the case at bar, notice to the agent is not notice to the company, for the purpose of creating a waiyer by the company of an express warranty.
    The defendants excepted to the charge as given, and to the refusal to charge as requested; and a verdict having been rendered for the plaintiff, the judgment entered thereon comes into this Court by writ of error.

      S. Larned and F. A. Baker, for plaintiff in error.
    I. The existence of incumbrances on property to be insured is a fact, material to the risk, if specifically inquired after in the application for insurance, and if the answer to the inquiry is false, the policy is void, whether the application is a warranty by the assured or a mere representation.—Patten v. Merchants & Farmers’ Ins. Co., 38 N. H., 338; Richardson v. Maine Ins.. Co., 46 Maine, 394; Davenport v. New England Ins. Co., 6 Cush., 340; Packard v. Agawam Ins. Co., 2 Gray, 334; Bowditch Ins. Co. v. Winslow, 3 Gray, 415; 8 Gray, 38; Friesmuth v. Agawam Ins. Co., 10 Cush., 587; Wilbur v. Bowditch Ins. Co., 10 Cush., 446; Hayward v. New England Ins Co., 10 Cush., 280; Hutchins v. Cleveland Ins. Co., 11 Ohio St., 447; Brown v. People’s Ins. Co., 11 Cush., 444; Murphy v. People’s Eq. Ins. Co., 7 Allen, 239; Towne v. Fitchburg Ins. Co., 7 Allen, 51; Jacobs v. Eagle Ins. Co., 7 Allen, 132; Gohagen v. Union Ins. Co., 43 N. H., 176.

    But where an application is made a part of the policy, the statements made in it, in answer to specific interrogatories, are warranties by the assured, even though the application is not declared in express terms in the policy, to be a warranty.—Pennsylvania Ins. Co. v. Goltsman, 43 Penn. St., 151; Battles v. York Ins. Co., 41 Maine, 208; Smith v. Empire Ins. Co., 25 Barb., 497, and cases cited.
    II. A warranty, in a policy of insurance, is either affirmative or promissory, and is in the nature of a condition precedent; and whether a warranty be material to the risk, or not, the insured stakes his claim to indemnity, upon its precise truth, if it be affirmative, or upon the exact performance of it, if executory.—1 Bouvier’s Institutes, 492.

    In the present case the counsel for the plaintiff seeks to avoid the effect of the false warranty as to incumbranees, by showing that the agent who took the application knew of the existence of the undisclosed mortgages, and conversed with the plaintiff about them, at the time the application was signed; and whether such knowledge by the agent can change and contradict the written agreement of the parties is really the only question to be determined. Where the parties have reduced a contract to writing, it has always been considered a wise and salutary rule, that all prior and contemporaneous verbal arrangements are conclusively presumed to have been merged in the writing, and that all oral testimony of a previous colloquium between the parties is incompetent. In the following cases, analogous to the case at bar, this rule was applied, and the policies held to be invalid, although the insured truly informed the agent, who filled up the application, of a fact untruly stated in it.—Jennings v. Insurance Co., 2 Denio, 75; Manufacturing Co. v. Insurance Co., 21 Conn., 19; Kennedy v. Insurance Co., 10 Barb., 285; Tebbets v. Insurance Co., 3 Allen, 569; Riply v. Insurance Co., 30 N. Y., 136; Lee v. Insurance Co., 3 Gray, 583; Wilson v. Insurance Co., 4 R. I., 141.

    These cases are not in conflict with the decision of this Court in Peoria Ins. Co. v. Hall, 12 Mich., 202, because the warranty in that case was implied from the fact, that the assured accepted a policy containing the particular condition in question, but did not make any express .warranty over his own signature, as in the cases cited above, and in the case at bar.

      Moore & Griffin, for defendant in error.
    We consider this case determined by the case of Peoria Marine & Fire Insurance Co. v. Hall, 12 Mich., 203. The answer to the 9 th interrogatory is not a warranty. Neither the policy nor the application makes it so.—Ætna Ins.

      Co. v. Grube, 6 Minn., 82; Garcelon v. Hampden Fire Ins. Co., 50 Maine, 580; Patten v. Merchants & Farmers’ Mutual Fire Ins. Co., 40 N. H, 376; Nicoll v. American Ins. Co., 3 Woodb. & M., 529; Hartford Protection Ins. Co. v. Harmer, 22 Ohio, (N. S.), 433; Roth v. The City Ins. Co., 6 McLean, 325.

    If there is any doubt, the construction -will be in favor of .the insured.—Daniels v. Hudson River Fire Ins. Co., 12 Cush., 416; Wilson v. The Conway Fire Ins. Co., 4 R. I., 142.

    But we insist that even though the answer to interrogatory 9th be treated as a warranty, it will make no difference.—Ames v. The N. Y. Union Ins. Co., 14 N. Y., 253; Plumber v. Cattaraugus Mutual Ins. Co., 18 N. Y, 392; Rowley v. The Empire Ins. Co., 3 Keyes, (N. Y.), 567.

   Cooley, J.

Olmstead recovered judgment in the Court below upon a policy of insurance issued by the plaintiffs in error, and by which they insured him against loss by fire on his hotel and the furniture therein, and hotel-barn, in the village of Lyons. A loss having occurred, the insurers refused to pay on the ground of a breach of warranty by the insured, which, by the terms of the policy, rendered that instrument void.

It appears that by the policy, it was expressly provided that “if an application, survey, plan or description of the property, herein insured, is referred to in this policy, such application, survey, plan or description, shall be considered a part of this policy, and a warranty by the insured.” The policy was based upon an -application, which contained questions and answers, and the ninth question, with the answer thereto, was as follows:

“9. Incumbrance; if any, state the amount. Is there any insurance by tbe mortgagees ? State tbe amount. 9. M”

The breach of warranty relied upon was, that at this time there were two mortgages upon the insured property; and this fact was not disputed. To avoid the force of this objection, Olmstead, the plaintiff (below), called the agent of the insurance company, and proved by him that at the time of taking the application he knew of the existence of the two mortgages; that the witness drew the application, and asked Olmstead to look at and sign it; that the question of incumbrances was talked over between them at the time, and whether the mortgages should be mentioned in the application was fully discussed; that the witness advised Olmstead that he did not think it would make any difference whether the mortgages were mentioned in the application or not, as there was no insurance by the mortgagees; that the witness expressed the opinion to Olmstead that he could answer the ninth interrogatory “No,” and that Olmstead would not have signed it if the witness had not told him he had better.

If we recur again to the ninth interrogatory we shall perceive that in fact it embraces a number of questions, only one of which can be answered by a distinct affirmative or negative. The only answer given to all these questions is “'No;” and this is a proper reply only 'to the question — “ Is there any insurance by the mortgagees ?” It does not answer the request to state the amount of incumbrance, if any. The interrogatory and the answer taken together are ambiguous, and we cannot feel assured that the applicant, in signing this paper, understood his reply as asserting anything more than that there was no insurance on behalf of mortgagees on the same property. The parol evidence tends to show that that was his understanding; that he was led to believe that it was to the point of other insurance that the interrogatory was directed, and consequently he had given the insurers all the information their blank application called for.

And we think it becomes pertinent to inquire, Who impressed him with this belief? Had it been some one of whom he sought information and counsel on his own behalf, or had it even been a mere stranger, the insured must have acted upon his belief at his peril. Such, however, was not the case here. The agent of the insurance company assumed to have all the requisite knowledge for preparing the proper papers, and volunteered to make them out. He had all the necessary informatiozi for that purpose, and nothing was concealed from him. If the application is zzot in due form, and if it fails to give all the information called foz', it must be either because the agent was too ignorant of the business to be properly intrusted with the agency, or because he was so negligezit or reckless that he did not trouble himself to draft them correctly, or lastly, because he was disposed to take Olmstead’s money on the fraudulent pretense of giving hizn indemnity when he knew he was giving none whatever.

The gezieral rale undoubtedly is, that in the absence of fraud, accident or mistake, a party must be conclusively presumed to understand the force of his contracts, and to be bound by their terms. But it cannot be tolerated that one party shall draft the contract for the other, and receive the consideration, and then repudiate his obligation on the ground that he had induced the other party to sign an untrue representation which was, by the very terms of the contract, to render it void. Still less can this be allowed when the representation itself is so ambiguously worded as to be well calculated to conceal its znal zneaning, and to deceive the party signing it.

It is true that in this case the paper in question was drawn by an agent; but we do not think that, in a legal point of view, the rights of the parties are any different from what they would be had the agent himself been insurer. The insurance business of the world is done through agents almost exclusively, and the maxim qui facit per alium facit per se applies with special force to their acts. These agents assume to have, and generally do have much more intimate knowledge of the business than those with whom they deal. They may also be fairly presumed to understand (the requirements of their principals, and how properly and legally to fill up the blank applications and other papers with which their principals entrust them. The community in general do not assume to be familiar with these matters, and would not venture in any case to set up their own view of what was or was not the proper form of an application, against the positive assertion of an expert. The forms and requirements of different insurers are different; and when an agent, who at the time and place is the sole representative of the principal, assumes to know what information the principal requires, and after being furnished with all the facts, drafts a paper which he declares satisfactory, induces the other party to sign it, receives and retains the premium moneys, and then delivers a contract which the other party is led to believe, and has a right to believe, gives him the indemnity for which he paid his money, we do not think the insurer can be heard in repudiation of the indemnity, on the ground of his agent’s unskillfulness, carelessness, or fraud. If this' can be done it is easy to see that community is at the mercy of these insurance agents, who will have little difficulty in a large proportion of the cases, in giving a worthless policy for the money they receive.

"We have never seen reason to doubt the correctness of the decision in Peoria Marine & Fire Ins. Co. v. Hall, 12 Mich., 203, the principle of which governs the present case. Without undertaking to say that the answer to the ninth interrogatory as above given can be declared untrue, we think if it is so, and the policy for that reason, according to its terms, made void at its delivery, the agent, who had knowledge of all the facts, was chargeable also with knowledge of this invalidity; that the insurers are also chargeable with the knowledge possessed by their agent, and that consequently it was a fraud on their part to receive the premium moneys and deliver the policy without intending it should have effect under such circumstances. Such a fraud the law will not permit to be consummated; but on the contrary it will hold that when they delivered the policy it was with the intention that it should take effect, and that the insured should have the benefit from it for which he paid; and if there was any error or ambiguity in the application which their agent prepared, they must be held, under the circumstances here appearing, to have waived it.

The judgment must be affirmed.

The other Justices concurred.


text:
    Nathaniel W. Brooks v. George Hargreaves and Samuel Hargreaves.

      Promissory note: Time of payment. An obligation payable in money, the time of which cannot be made certain by any attainable means, is not a promissory note. It is essential to a promissory note, that it be payable at a time which must certainly arrive in the future, upon the happening of some event, or the completion of some period, not depending upon the future volition of any one.

      Heard July 11.

      Decided July 12.

    Case made from Wayne Circuit.
    This was an action of assumpsit, brought by Nathaniel W. Brooks, in the Circuit Court for the County of Wayne, against George Hargreaves and Samuel Hargreaves. The plaintiff declared upon the common counts, and gave notice that he would offer in evidence under the common counts, an instrument of which the following is a copy, viz:—
    “$588.00. Detroit, Mich., Dec. 24, 1867.
    “One year after date, for value received, we promise to, pay to Joseph Smith, or bearer, five hundred and eighty-three dollars, with interest — this to be paid when any dividends shall be declared on such shares as Joseph Smith has been holding heretofore in the Agricultural & Broom Handle Manufacturing Company of Trenton, Mich.
    (Signed) Geo. Hargreaves & Bro.”
    50 cents Revenue Stamp.
    Canceled.
    The defendants pleaded the general issue. On the trial, the plaintiff having put the instrument in evidence, the defendants introduced evidence showing that said instrument was given by them to Joseph Smith for certain shares or certificates of stock in the Agricultural & Broom Handle Manufacturing Company of Trenton, which he transferred to them, and that for the same consideration, and as part of the same transaction, they also gave him another note or obligation, in every respect like the one in suit, except that in place of the words “One Year,” were written the words “Two Years.” It ivas admitted that no dividends had been declared on said stock since said instruments were made. No other or further evidence was offered or' introduced on either side.
    The cause was tried without a jury, by the Circuit Judge, who found for the defendants, and judgment being entered thereon, the decision of the Circuit Judge comes before this Court for review upon a case made under the statute.

      Meddaugh & Driggs, for plaintiff.
    The sole question in this' case is whether the instrument, a copy of which is appended to the declaration, is a promissory note.
    The solution of this question depends on the effect to bo given to the words “this to be paid when,” etc. If these words are construed as enlarging the time of payment, then the instrument is a simple contract; but if, as we contend, their purpose was to narrow or shorten the time within which it should be paid, then the instrument is a promissory note.
    1st. It is a fact entitled to some weight in construing this instrument, that the parties to it evidently understood it to be a promissory note. The makers placed a revenue stamp on it as and for a note. This fact we submit is of controlling importance, where, as in this case, the instrument is so worded that it may fairly be read either as a note or' contract, and the language leaves a doubt as to the intention of the parties to it.
    2d. But we say the fair and natural meaning of the language used is that the instrument should be paid in one year after date, and sooner' if dividends on the stock should be sooner declared. The purchasers of the stock, the defendants, were willing to pay for it when dividends should be declared by which its value should be established and 'appreciated, whenever that might occur; but, if no dividends should be accrued, then at the definite time fixed in the instrument. If no dividends should be earned or declared, they would pay in one, two and three years, in equal payments, for there were in fact three of these instruments given. Such, undoubtedly, was the real nature of the transaction, and the actual intention of the parties.
    3d. Is it to be presumed for a moment that Joseph Smith, the owner of the stock, was willing and intended to part with it to these defendants — oyer $1,700.00 in value — for their promise to pay him that sum when and not until a dividend should be declared on those shares ? This, we submit, is altogether improbable. A dividend might never be declared, and the market value of the stock still be within a few cents of par. Upon the winding up ■of the corporation and the sale of its property, the defendants might realize from the proceeds a sum largely in excess of the amount which they promised to pay, for it does not appear that they purchased this stock at its par value, and yet they could never be compelled to pay one dollar. Such a result is more than probable in this case. A construction which might lead to consequences so shocking to the natural sense of justice no court will adopt, if the instrument be fairly susceptible of any other.
    4th. The reported cases furnish but slight aid in the ■construction of this instrument. It is not probable that a case is to be found where an instrument wo'rded in all respects like the one here in question, has undergone judicial construction.
    The following are the nearest in point: Cota v. Buck, 7 Metcalf, 588; Stevens v. Blunt, 7 Mass., 240; Goodloe v. Taylor, 3 Hawks, 458.

    We have thus far assumed that if the instrument be construed as a promise to pay in one year from date at all events, it is a promissory note, and this we think is beyond a doubt the result of the American cases.—Stevens v. Blunt, 7 Mass., 240; Goodloe v. Taylor, 3 Hawks, 458; Cota v. Buck, 7 Met., 588; 1 Pars, on Notes and Bills, p. 38. Being by express terms payable in one year from date, the fact that it may be payable sooner, on a day not certain, to wit, when a dividend shall be declared, cannot take away from it the character of a promissory note. The instrument lias' a certain time of payment, a time ■ that must arrive.
    .A promise to pay a certain sum of money six weeks after the death of a man has been held to be sufficiently definite.—Cooke v. Caliban, 2 Stra., 1217. In such case,. Avhile the day of payment is sure to arrive, the precise-time is uncertain. Within a reasonable period it must occur, while Avithin a certain other and less period in may not.
    So it is Avell established that a promise to pay on or before a. certain day is sufficiently definite. So a promise-to pay on demand.

      E. C. Hindsdale, for defendant.
    I. The instrument is not a promissory note, and therefore not one on Avhich suit can be brought on the common counts under the provision of the statute. — 2 C. L., p. 1148, § 4161. It is payable upon a contingency, viz: that a dividend shall be made on the stock mentioned in the instrument. The payment of it is made to depend upon an uncertain event, and thus its negotiability is destroyed.—Edwards on Bills and Notes, p. 141; Smith’s Mercantile Law, p. 253.

    The folloAving are cases of similar obligations, — all payable at a specified time, but with a contingency attached, as in this case; all held not promisory notes.—Coolidge v. Ruggles, 15 Mass., 387; Hubbard v. Mosely, 11 Gray, 170; American Exchange Bank v. Blanchard, 7 Allen, 333; Hays v. Gwin, 19 Ind., 19; Seacord v. Burking, 5 Denio, 444; Clarke v. Percival, 2 B. and Ad., 660; Robins v. May, 11 Ad. and El., 213; Ayrey v. Fearnsides, 4 M. and W., 168.

    The case of Stevens v. Blunt, 7 Mass., 240, is very clearly overruled by the subsequent decision in the same-State, and in the words of the note appended by the editor, was “clearly wrong” when given.
    II. By the terms of the instrument, the money to be paid was not due when suit was brought. The promise to pay in one year is qualified by the ensuing condition, “ this to be paid when any dividends shall be declared,” etc.
    A fair construction of this instrument is a promise to pay in one year, provided a dividend should then have been declared, but if not, as soon thereafter as a dividend should be made. It is quite evident that this was the construction which the original parties to the instrument put upon it. Two agreements were given, precisely similar in form, except that one is payable in “one year,” and the other in “"'two years,” with the added contingency in each. The intention of the parties is plainly manifest, viz: there was to be a credit of at least “one year” on the amount mentioned in the first instrument, and longer, if the stock for which the obligation was given should have produced nothing during that year, and in like manner, there was a credit of at least “two years” on the second obligation, with a further extension in case dividends should not have been made during the two years.
   Campbell, Ch. J.

The present case involves only the determination of the question whether the claim sued on is in law a promissory note. It is as follows:

“$583.00. Detroit, Mich., Dec. 24, 1867.
“ One year after date, for value received, we promise to pay to Joseph Smith, or bearer, five hundred and eighty-three dollars, with interest, — this is to be paid when any dividends shall be declared on such shares as Joseph Smith has been holding heretofore in the Agricultural and Broom Handle Manufacturing Company of Trenton, Mich.
“(Signed) Geo. Hargreaves & Bro.”
(30 cents Revenue Stamp,
Canceled.)

The note, with another of the same tenor, except that it began with the words “two years after date,” was given for the purchase price of the shares of stock referred to, and no dividends have ever been declared since the notes were given.

It is somewhat difficult to determine the precise meaning of this instrument. When read in the light of the circumstances referred to, it would appear as if it was intended to give credit for one and two years, and to require no payment at all until, by yielding some dividend, the stock sold should be found to have some real value. And such I think is the natural meaning of the language used.

If it does not mean this, then, as claimed by plaintiff, it was payable at all events in one year, but, in case dividends were declared sooner, then it was payable at once upon such declaration. This construction would make both notes payable together, and, however small the dividend, might require both to be paid at any time, however short the interval, after their date, so long as a dividend should be declared. It is hardly possible that such a meaning could have been thought of.

But either of these constructions renders the time of payment uncertain. If in any contingency the note could be demanded within the year, it would be as objectionable as if not demandable until beyond the year. The declaration of a dividend is in either case the criterion, and that cannot be rendered certain by any evidence in'advance. It depends entirely on future action by the Company.

As the note on either hypothesis might have become payable at a time wli ich could not be made certain by any attainable means, it cannot be regarded as a promissory note. That must be payable at a time which must certainly 'arrive in the future, upon the happening of some event or the completion of some period not depending on the future volition of any one. The maturity of this instrument was liable to be hastened or postponed 'by the action of the corporation.

As it is possible, upon some further showing, in a suit properly brought, there may be better means of ascertaining the’ equities, we abstain from deciding finally which construction is correct, or whether there may not be some other one still more in accordance with right.

The judgment below was correct and must be affirmed with costs. •

The other Justices concurred.