text:
    BAWDEN v. HUNT.

    Deeds — Construction—Property Conveyed.
    Where one, after building a house on a village lot owned by his brother, was given a deed conveying “all the house and premises situated on” the lot, describing it, together with the hereditaments and appurtenances thereunto belonging, it was properly held that the deed passed title to the lot as well as the house.
    Error to Houghton; Haire, J.
    Submitted January 12, 1900.
    Decided March 13, 1900.
    Ejectment by Frederick J. Bawden and others against Jane Hunt and others. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      J. F. Hambitzer, for appellants.

      Chadbourne & Bees, for appellees.

       Rehearing denied October 16, 1900.

   Montgomery, C. J.

This is an action of ejectment to recover lot 7, block 4, in the village of Houghton: The plaintiffs are the heirs at law of James Bawden, and the defendants claim through mesne conveyances from the plaintiffs’ ancestor, which are conceded tó have vested the title in defendant Hunt if a certain deed hereinafter referred to is to be construed as intended to convey the title to the realty as distinguished from the house. It appears that in 1858 James Bawden was the owner of the lot in question, and that he told his brother, George Bawden, that he might build on the lot, and, if he (George) should later be able to purchase the same, he (James) would sell it to him. After the house was built, James gave to George the deed in question, the granting clause and habendum of which read:

“ Doth grant, bargain, sell, remise, release, and forever quitclaim unto the said party of the second part, and to his heirs and assigns, forever, all the house and premises situated on lot No. seven (7) of block No. four (4) in the town of Portage, as laid down in the village plat of Houghton, in the township of Portage, together with, all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining; and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, claim, or demand whatsoever of the said party of the first part, either in law or equity, of, in, and to the above-bargained premises, with said hereditaments and appurtenances. To have and to hold the said house and premises to the said party of the second part, and his heirs and assigns, to the sole and only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns, forever.”

The plaintiffs contend that this deed conveyed only the title to the house; was really intended as an assurance, as it appears that George already owned the-house. The defendants contend that, so far as the situation of the parties throws light on the question, support is given to the construction given by the circuit judge, viz., that the deed passed title to the realty; for it is said that, the title to the house being already in George, a deed was not necessary to vest title in him.

The general rule is well established that the grant of a house eo nomine passes the land on which it stands, or essential to its use. 3 Washb. Real Prop. (5th Ed.) 412. The question in this case is whether the language employed is restrictive, and indicates an attempt to limit the conveyance to the house itself. In Wilson v. Hunter, 14 Wis. 683, the deed described the premises conveyed as “the three-story brick building now occupied by the grantor as a store, and situated on land described as follows: Lot No. one in block number nine in the village of Whitewater.” The store covered not only lot 1, but also a small part of another lot. It was held that the title to all the land passed by the deed. In Gibson v. Brockway, 8 N. H. 465 (31 Am. Dec. 200), the conveyance was of a certain tenement, to wit, “one-half of a corn mill situated * * * in lot one,” etc., with all privileges belonging thereto. It was held that the land on which the mill was situated passed. A case closely resembling the present was Golden v. Coonan, 107 Iowa, 209 (77 N. W. 852). The grantor, by the deed there in question, sold and conveyed “the following-described premises, to wit, a piece of timber on lot five, section two, . * • * *. containing five acres, more or less,” concluding with usual covenants as to title to said premises. The court said it was premises, and not timber, that was sold. The case is strongly in point. In this case the conveyance is of the house and premises, together with the hereditaments and appurtenances. We think it should be held that the deed was intended to convey the land as well as the house.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    FULTON v. PREDDY.
    1. Deeds — Escrow—Condition—Validity.
    A deed placed in escrow, to be delivered to the grantee at the grantor’s death; is effectual to pass title.
    2. Same — Evidence.
    The condition upon which a deed in escrow is to be delivered to-the grantee need not be expressed in writing, but may rest wholly or in part in parol.
    3. Same — Acknowledgment—Witnesses.
    Notwithstanding 8 Comp. Laws 1897, § 8962, requiring deeds to be executed in the presence of two witnesses, and acknowledged before the proper officer, deeds not witnessed or acknowledged are good between the parties thereto, and hence, where a deed delivered in escrow was subsequently altered by the grantor, and redelivered, the fact that it was not re-witnessed or acknowledged did not make it invalid.
    4. Evidence — Witnesses—Objections.
    A line of inquiry, which plaintiff’s counsel kept within reasonable limits, as to what a certain person, who had charge on a former trial of the securing of witnesses for defendant, had done in that connection, was held not to be objectionable as-an attempt to “draw” such person “into the case.”
    Error to Lenawee; Chester, J.
    Submitted January 12, 1900.
    Decided March 13, 1900.
    Ejectment by George Eulton and Minerva Fulton against Frank E. Priddy, administrator of the estate of Samuel B. Reed, deceased. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      John E. Bird and Salsbury & O’Mealey, for appellant.

      Watts, Bean & Smith, for appellees.
   Montgomery, C. J.

This is an action of ejectment. Both parties claim under alleged conveyances from Rhoda Reed, wife of Samuel B. Reed. ' Plaintiffs claim under a deed made by Rhoda Reed, executed on the 25th day of September, 1889, and delivered to Henry C. Smith in escrow, to be delivered to the plaintiffs at the death of the grantor. The defendant claims under a deed alleged to have been made to Samuel B. Reed between the years 1877 and 1879, and subsequently lost without being recorded. The jury found that this last-mentioned deed never existed, so that the case turns upon the questions of whether there was error in thb course of the trial which affected the determination of that question of fact, and whether the plaintiffs show a valid conveyance.

As the plaintiffs must recover on the strength of their own title, the first question in order is whether a valid conveyance is shown. The deed under which plaintiffs claimed title had inserted in its body, when first executed, a clause reading as follows :

“This deed is delivered to Henry C. Smith, of the city of Adrian, by the above-named grantor, in escrow, to be by him delivered to the above-named grantees at the death of the grantor, or to the grantor in her lifetime, if she requests.”

It is conceded by plaintiffs that the deed as at first written was inoperative, as it was subject to recall at any time by the grantor. It appeared, however, that, after the first execution and delivery of the deed to Mr. Smith, his attention was called to the decisions which established the invalidity of the deed in its then form, and that he sent for the grantor, and so stated. What occurred subsequently is stated by Mr. Smith as follows :

“ In response to this message, Mrs. Reed came into the office, and I explained it to her what my fear was regarding that clause in the deed; and she said that it did not matter anyhow; she did not want it back, and would not; that Mr. Reed had importuned her to make a conveyance to him, but she did not want to do it, and she preferred to have it beyond her control; and she asked me to erase that clause, and I did so. I took a rubber, and erased it, and she handed it back to me, and I put it in among my private papers, in a drawer in our safe. She told me to give it to Mr. and Mrs. Fulton, — to deliver it to them upon learning of her death, — and put it upon record, and enjoined me again to keep it secret. After I learned of her death, I sent for Mr. Fulton, or he called, — I have forgotten which. I think he called, and claimed that he had been informed by her that there was such a deed, — he and his wife had, — and at his request I took it down here, and had it put on record.”

After the erasure, the deed read as follows:

“This deed is delivered to Henry C. Smith, of the city of Adrian, by the above-named grantor, in escrow, to be by him delivered to the above-named grantees at the death of the grantor.”

From the deed, as supplemented by the testimony of Mr. Smith, it appears that it was delivered intending it to be placed beyond recall by the grantor. That a conveyance so made is valid and effectual to convey title, see Foster v. Mansfield, 3 Mete. (Mass.) 412 (37 Am. Dec. 154); Wallace v. Harris, 32 Mich. 380; Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291).

The condition upon which the deed is to be delivered need not be in writing, but may rest in parol, or partly in writing and partly in parol. 11 Am. & Eng. Enc. Law (2d Ed.), 343; Stanton v. Miller, 58 N. Y. 203.

But it is said the deed was not re-executed, and was not, as changed, witnessed or acknowledged. According to the testimony of Mr. Smith, however, the change was made in the presence of the grantor, by her direction, and the deed was again delivered to him. The delivery of the deed may always be shown by parol testimony. If it was competent, therefore, for the grantor to pass title to this land by a deed without witnesses, it would seem to follow that the redelivery of the deed to Mr. Smith after the erasure would be effectual. 2 Am. & Eng. Enc. Law (2d Ed.), 217.

It is strenuously insisted that, under our statutes (section 8962, 3 Comp. Laws 1897), witnesses are necessary. It is hardly profitable to discuss the question of whether the statute might be open to this construction, as this court, in an early day, dealt with the- question, and in so doing established a rule of property which we would not, under any view, feel at liberty to depart from. Under the holdings r'eferred to, a deed not witnessed is good between the parties. Dougherty v. Bandall, 3 Mich. 581,; Price v. Haynes, 37 Mich. 487; Baker v. Clark, 52 Mich. 22 (17 N. W. 225).

As to the deed to Samuel B. Beed, was the- question of fact fairly submitted on competent testimony? We think the charge was fair and full, and we also think the rulings of the court were proper on every question raised on the introduction of testimony.

Complaint is made of an alleged attempt to draw one Warren Gilbert into the case. It appears by defendant’s own testimony that Mr. Gilbert had charge of securing witnesses on the former trial for Mr. Beed. The inquiry as to what he did in that connection was proper within reasonable limits, and the court appears to have kept within the limit.

The judgment is affirmed.

The other J ustices concurred.


text:
    EKLUND v. TONER.
    i. Replevin — Distrained Cattle — Bad Faith.
    Replevin will lie under the general statute for cattle unlawfully taken under claim of distress urged in bad faith, merely as a pretext to gain possession.
    3. Evidence — Boards of Supervisors — Proceedings—Authentication-Waiver.
    Defendant will not be permitted to urge upon appeal that a portion of the day’s proceedings of a board of supervisors, offered in evidence by plaintiff, was erroneously admitted, because not signed by the chairman and clerk of the board, where his counsel announced at the trial that he had no objection to the admission of the extract; plaintiff, under such circumstances, having a right to assume that proof of authentication was waived.
    Error to Muskegon; Russell, J.
    Submitted January 12, 1900.
    Decided March 13, 1900.
    Replevin by Ole Eklund against William Toner. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Smith, Nims, Hoyt & Erwin, for appellant.

      Dan T. Chamberlain and Charles B. Cross, for appellee.
   Montgomery, C. J.

This is an action of replevin for two milch cows and a heifer. The plaintiff recovered, and defendant brings error. In an action of trespass between the same parties, damages were recovered for the defendant’s seizure of the .cattle, which he attempted to justify in this case. The trespass was considered in this court, and is reported in 121 Mich. 687 (80 N. W. 791). The defense in this case is that the cattle were seized damage feasant, while trespassing on defendant’s land, and he offered testimony tending to establish this claim. The plaintiff gave testimony tending to show that the defendant seized the cattle in the highway, and that the board of supervisors had authorized cattle to run at large, and tending to show that such seizure was not made in good faith. The defendant, at the close of the testimony, asked the court to direct a verdict on the ground that the action should not have been brought under the general statute authorizing replevin, but under section 10705 et seq., 3 Comp. Laws 1897.

It is conceded by counsel that if the cattle were taken in bad faith, and the claim of distraint is a mere pretext, the action under the general replevin statute might lie. See Campau v. Konan, 39 Mich. 365; Cox v. Chester, 77 Mich. 499 (43 N. W. 1028). But it is contended that the question of good faith cannot enter into this case, for the reason that section 5606, 2 Comp. Laws 1897, prohibits cattle from running at large, except in those counties where the board of supervisors declares the act inoperative, and that, in the absence of such action, cattle found in the highway may be distrained; and it is contended that no valid action by the board of supervisors is shown. The action of the board of supervisors was offered in evidence, from the proceedings of the board on the 11th of October, 1881, whereupon the following occurred:

“The Court: Passed in 1881, was it?
“Mr. Cross: Passed October 11, 1881, shortly after this law was amended in February, 1881. This is passed at the October session of the board of supervisors. Have you any objection to that?
“Mr. Smith: Not as I can discover.
“The Court: It will be received.”

It is now contended that this record was not sufficient to show valid action by the board, because it was not shown to have been signed by the chairman and clerk. It must have been understood by defendant’s counsel as offered to show valid action by the board, and he then found no objection to it. A signing at the close of the day’s session would be sufficient. Thomas v. Abbott, 105 Mich. 687 (63 N. W. 984). And when this offer of a portion of the day’s proceedings was made, and no objection to it discovered by defendant’s counsel, plaintiff’s counsel had the right to assume that it was treated as a portion of a valid record, and that proof of the authentication of the record was waived.

The other assignments of error have been considered, but we are convinced that no just ground of complaint exists.

The judgment will be affirmed, with costs.

The other Justices concurred.


text:
    Hall v. Wortman.
    1. Promissory Note — Ownership—Question for Jury.
    The title to a note given- to a husband as part of the purchase-price of land which stood in the name of his wife, whichnote was indorsed by him shortly before his death, and left in her custody, was a fact to be determined by the jury, where there was some evidence that the purpose of the indorsement was merely to facilitate collection for the benefit of the husband’s estate.
    2. Check — Payee—Presumption.
    Where a check given for realty conveyed by husband and wife was made payable to the latter, the presumption is that it was understood to belong to her.
    3. Deeds — Title—Husband and Wife — Evidence.
    - Where a widow, as administratrix of her husband’s estate, was-sought to be charged with the proceeds of notes received by decedent as part of the purchase price of certain lands, a deed of the lands from decedent to his wife was properly ■admitted in evidence, for the purpose of showing whose title . was conveyed, although no proof had been offered that decedent, at the time of the grant to the wife, was himself invested with the title.

      Error to Ionia; Davis, J.
    Submitted January 30, 1900.
    Decided March 13, 1900.
    Julia E. Wortman filed her final account as administratrix of the estate of Wallace E. Rice, deceased. From an order of the probate court charging her with certain items,' she appealed to the circuit, where verdict was directed in her favor. Arthur N. Hall, guardian of Fred and'Clifford Rice, brings error.
    Reversed.

      Vernon H. & H. H. Smith, for appellant.

      B. A. Hawley, for appellee.
   Montgomery, C. J.

This case involves an accounting by the administratrix of the estate of Wallace E. Rice, deceased. The question involved is whether the administratrix (formerly Mrs. Rice, the wife of the intestate) should be charged with two notes given by one Potter, of Rocky Ford, Colo., to Mr. Rice in his lifetime, and also with the balance unexpended at the date of Mr. Rice’s decease of a check given at ‘the same time these notes were executed. The case was tried before a jury, and at the close of the testimony a verdict in favor of the administratrix was directed.

It appears that the notes in question (for $375 each), and a check of $476.66, payable to the order of Mrs. Julia E. Rice, were given by Mr. Potter in payment for a house and lot in Rocky Ford, deeded to him by Julia E. Rice, confirmed by a deed made two or three days later by both Mr. and Mrs. Rice. It further appears that, shortly before the death of Mr. Rice, he indorsed his name on the back of the two notes, and left them in the custody of Julia E. Rice. Counsel for the administratrix concedes that the circumstances under which these indorsements were made do not show conclusively whether it was intended to make a present gift to Mrs. Rice, or whether, on the other hand, the intention was to facilitate collection for the benefit of Mr. Rice’s estate. It is insisted, however, that, as the evidence shows that the notes were part of the proceeds of the house and lot, which was held in the name of Mrs. Rice, it should be conclusively inferred that, in indorsing the notes, Mr. Rice simply turned over to Mrs. Rice her own. This is apparently the view adopted by the circuit judge. It cannot be denied that a strong inference in this direction is justifiable, but we think the inference is one to be drawn by the jury, particularly as the contestant gave some testimony tending to show a different understanding by the administratrix. As to the proceeds of the check, the question is quite different. As this was made payable to Mrs. Rice, the presumption would be that it was understood to be her money. As to the notes, we think it should have been left to the jury to say whether, in view of all the circumstances, it was intended, by having the' notes made payable to the order of Mr. Rice, that the portion of the proceeds of the real estate represented by these notes should belong to him, and, if so, whether the indorsement was intended by him to vest title in Mrs. Rice.

It is contended, however, that there was error in admitting in evidence the deed of the house and lot from Wallace E. Rice to Julia E. Rice, for the reason that it did not appear that Wallace E. Rice had title. Counsel seem to have overlooked the fact that the question of title, as it affects the question in this case, is whether Wallace or Julia had the title which was conveyed to Potter. Clearly, a conveyance by Wallace to Julia would show that, at the date of such conveyance, she, as between the two, became vested with the title.

The circuit judge did not award costs to either party. We are disposed to take the same course. Judgment will be reversed, and a new trial ordered; each party to bear his own costs.

The other Justices concurred.


author: Hooker, J.

text:
    DARLING v. DARLING.
    1. Deed — Equitable Mortgage — Reconveyance.
    Where complainant deeded lands to secure a loan, and Ms wife afterwards paid the loan out of her money, and with her husband’s assent toolr a deed to the property, he was entitled to have the deed to his wife declared an equitable mortgage, and the property reconveyed to him by the wife’s heirs on payment of the amount of the loan, with interest.
    2. Same — Betterments—Liens—Husband and Wife.
    Moneys expended by a wife in improving a farm belonging to her husband, but deeded to her to secure money advanced in discharge of'a mortgage, will not, in the absence of any agreement that she should have a lien for the amount, entitle her heirs to such a lien, after payment by the husband of the amount originally advanced; such additional sums constituting, at most, a personal obligation.
    Appeal from Shiawassee; Smith, J.
    Submitted January 30, 1900.
    Decided March 13, 1900.
    Bill by Butmister W. Darling against Oren Darling and others to have a certain deed decreed an equitable mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      S. S. Miner, for complainant.

      Lyon & Hadsall and Frank H. Watson, for defendants.
   Hooker, J.

The complainant, a man advanced in years, was the owner of 120 acres of land, upon which he resided for many years. The land was mortgaged, and after foreclosure he borrowed |2,005 from Tillotson, who lived in New York. The loan was made through William Dennis, who lived in Ovid, Mich.; he being a brother-in-law of Tillotson, and his agent in the transaction. The loan was for three years. Complainant deeded the land to Tillotson, and took back an ordinary land contract. This- transaction occurred in November, 1888; and in December, 1888, Tillotson, by his attorney, William Dennis, made a quitclaim deed of the premises to Lorena M. Dennis, the wife of William Dennis. This was done,, as we understand it, to enable her to reconvey the land during Dennis’ absence in Europe, in case the loan should be paid. It is not claimed that Dennis or his wife had any claim upon the property or debt. They merely represented Tillotson. In 1892 Mrs. Darling, the complainant’s wife, received about $5,000 from the estate of her brother; and, upon payment by her to Mrs. Dennis of $2,005.57, the latter gave to her a quitclaim deed of the land. This was done with the assent of her husband. It was understood that the title should vest in her. She-paid something towards some improvements that were-made upon the farm, and, in short, the remainder of her money was used up, probably for the family, and perhaps-partly in paying some debts incurred by her husband. Counsel so claim, and at all events the money appears to-have been used up prior to her death, which occurred in' 1898. Counsel for the complainant files this bill against the children and heirs of Mrs. Darling to have the deed to Tillotson decreed to be an equitable mortgage, and to-compel a reconveyance of the premises to the complainant on payment of the amount that should be found due from him to his Said wife. The learned circuit judge so decreed, and the defendants have appealed.

The attitude of these children towards their father does not appeal strongly to our sense of justice. We are satisfied that their mother’s understanding was that the title to the farm should be placed in her name, not only to protect her for the amount of money paid by her upon the mortgage, but also to avoid danger of losing it through an unwise disposition of it by mortgage or otherwise by her husband. He was content that it should be so, but neither expected that upon her death he would be burned out to shift for himself, that the children might divide the property among themselves. She took a quitclaim deed by the husband’s consent, but this amounted to no more than an assignment of the equitable mortgage of Tillotson. The complainant never conveyed his equity of redemption, unless it be by an estoppel, and we think it would be inequitable to allow the defendants to claim that. The most that we can say, then, is that the mother held an equitable mortgage upon the place for the amount paid Dennis, with interest. It is said that we should make the betterments a charge upon the place, but we think not. The complainant gave no mortgage for such sums, and they are, at most, a personal obligation. The defendants are insisting upon their “pound of flesh,” and must be satisfied with it. We think, however, that the old people never contemplated that the husband would be charged for what money was spent by the wife for the family, or in carrying on the farm. On the other hand, it was never intended that she would pay rent.

We think, therefore, that the decree was a just one, and it is affirmed, with costs.

Montgomery, O. J., Moore and Long, JJ., concurred. Grant, J., took no part in the decision.


author: Hooker, ,J. Pee Ctjbtam.

text:
    SCHERMERHORN v. MERRITT.
    Wills — Signing—Evidence.
    That testatrix wrote her name where it appeared in the body of a will not otherwise signed — conceding such to be a sufficient signing to comply with 3 Comp. Laws 1897, § 9266 — is not established by evidence merely that she on one occasion told a friend that she was making her will, and had copied it herself; there being nothing to show that the instrument referred to by testatrix was the one attested by the witnesses.
    ON APPLICATION FOR REHEARING.
    Appeal — Bill of Exceptions — Evidence.
    Where a bill of exceptions sets out in narrative form the direct, cross, and redirect examinations of the successive witnesses, expressly stating in some instances that the testimony is given in full, and containing no intimation that any testimony is omitted, the court will draw no presumption that other proof was adduced of a material fact to which the testimony related, but which it was insufficient to establish.
    Error to Washtenaw; Kinne, J.
    Submitted January 31, 1900.
    Decided March 13, 1900.
    Rehearing denied May 2, 1900.
    Jerome Schermerhorn presented for probate the alleged will of Mariette Bennett, deceased, and, probate being denied, he appealed to the circuit court. Erom a judgment for proponent, Giles Merritt and others, contestants, bring error.
    Reversed.

      Edward P. Allen and John P. Kirk (J. Willard Babbitt, of counsel), for appellants.

      Lehman Bros. & Stivers (M. J. Cavanaugh, of counsel), for appellee.
   Hooker, ,J.

In March, 1896, one Mariette Bennett, a spinster, died in Superior township, Washtenaw county, seised of 160 acres of land, at the age of 65 years. She was the last of a family of that name who lived and died upon the premises. The appellee is a negro, who lived in the family for many years, and who made his home there at the time Miss Bennett died. Letters of administration issued to Graves, and in the course of proceedings the appellee filed a claim before the commissioners on claims for services as hired man. This was disallowed, but on appeal a jury rendered a verdict in his favor. In June, 1897, a paper was presented to the probate court, which was alleged to be a copy of a will made by Miss Bennett, and the appellee petitioned that it be admitted to probate. After a full hearing, probate was denied; but on appea] to the circuit court it was sustained by the jury, and admitted to probate as the last will and testament of Mariette Bennett. The case is now before us upon appeal.

The paper, as described in the petition for prohate, reads as follows, viz.:

“This is to certify that Jerome Schermerhorn should have what I leave, in regard to property and real estate and household goods. I leave to him all that I have under my lock and key, also in my inclosure. This paper should not be shown until-nine months after my death. It was my brother Frank’s wishes that, if Jerome Schermerhorn stayed with us, that he should have what was left on the place, and the place. It is my wishes that he should have it, too. He has been a man that has worked hard for it. I now leave two hundred dollars for his burial or mine. If he dies first, it shall go for his burial. If I die first, Mariette Bennett, it shall buy a marker for me. As I leave the balance of property to Jerome Schermerhorn, I leave this with- Mr. George W. Lough-ridge. He made my monument, and put it on my lot. This paper shall not be shown till after nine months after my death. Jerome, he gets rattle-headed sometimes before he knows what he is doing. He will leave his home, if I leave him, and would not appreciate what I left him. That will give him a chance to see whether I am living or whether I am not.
[Signed] “Mariette Bennett.
“Witnesses:
“Albert Knapp.
“Wm. Rowe.”

The important question in the case is whether this paper • should have been admitted in evidence, and the jury permitted to find that Miss Bennett left a valid will, of which this was a copy. The statute (3 Comp. Laws 1897, § 9266) requires that a will be in writing, signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses. It is not pretended that this will was signed by any other person in the presence of the testatrix, at her direction, but it is claimed that she signed it herself. Is this proved ? The testimony of the witness Rowe shows a signature at the end of the will, but this was not there at the time that Knapp signed it. Then Knapp did not attest a will at all, but only an unexecuted writing, unless it can be made to appear that the name of the testatrix was written in the body of the instrument by her, if it be conceded that such would be a sufficient signing. The only evidence tending to show this is that of Rachel Ring, who said that on one occasion the testatrix was looking over some papers, and said to her that she was making her will for Jerome; that the testatrix then read the will over, and said:

“‘I have made it, copied it myself, and I want it done just like it. It is Jerome’s, and it shall belong to him.’ * * * She said she took the copy off of the other will. ”

Nothing shows when this was; nor is there any testimony tending to show that the will was finished, or that such paper was ever executed. It cannot be said that the name of the testatrix was written by her in the body of the will probated. We have not, therefore, the case of a will signed by the testatrix, and attested by two subscribing witnesses. The will should not have been admitted in evidence.

The order is reversed, and a new trial directed.

The other Justices concurred.

ON APPLICATION EOE EEHEAEING.

Pee Ctjbtam.

Counsel apply for a rehearing upon the ground that the court has assumed that there was no proof received upon the trial tending to show that Marietta Bennett wrote the original will, when the bill of exceptions does not show that all of the testimony was included in it. Under the testimony shown in the record, there was a lack of proof of the proper execution of the will, and therefore the court erred in admitting an alleged copy. Previous to the time this copy was offered, a number of witnesses had been sworn by proponent, upon whose testimony the offer was apparently based. The witnesses were called in succession, and the record not only contains, in'narrative form, their direct, cross, and redirect examination, but it expressly states in several instances that their testimony in full is given. There is nothing to indicate that the testimony of any witness was omitted. In such case we should be overtechnical if we should hold that the copy was admissible upon the assumption that proof of the fact now asserted had been made. We must assume that the bill of exceptions contains all testimony bearing on the question raised. See Shaw v. Hoffman, 25 Mich. 162; Carter v. Snyder, 27 Mich. 484; Atlas Mining Co. v. Johnston, 23 Mich. 36; Hitchcock v. Burgett, 38 Mich. 501; Rose v. Jackson, 40 Mich. 29.

The motion for rehearing is denied.


author: Moore, J.

text:
    KIRSCHBAUM v. JASSPON.
    1. Sale — Rescission — Buyer’s Financial Standing —Fraudulent Representations.
    Where goods are sold to an insolvent in reliance on false representations by him as to his financial condition, the seller, on learning the facts, may rescind the sale and maintain replevin, whether or not the buyer, when purchasing, intended to pay for the goods.
    2. Same — Insolvency as Ground op Rescission.
    The mere insolvency of the buyer at the time goods are purchased, unaccompanied by misrepresentation, is insufficient to render the transaction fraudulent and entitle the seller to rescind.
    Error to Alpena; Kelley, J.
    Submitted January 31, 1900.
    Decided March 13, 1900.
    Replevin by Simon Kirschbaum and others against Mas Jasspon and others. From a judgment for defendants, plaintiffs bring error.
    Reversed.

      Joseph H. Cobb, for appellants.

      J. D. Turnbull and I. S. Canfield, for appellees.
   Moore, J.

This case has been here once before, and is reported in 119 Mich. 452 (78 N. W. 473). A reference to that case will make it unnecessary to make a detailed statement here. On the second trial the defendants obtained judgment. The case is brought here by writ of error. It was the claim of plaintiffs that Jasspon, to obtain credit, made false and fraudulent representations as to his financial standing; that, relying upon those statements, they sold goods to him, upon which he soon thereafter put a chattel mortgage; that, when they learned his statements were not true, they rescinded the sale and brought replevin for the goods.

The plaintiffs requested the court, among other things, to charge the jury as follows:

“If you find from the evidence in this case that defendant Jasspon made the financial statements of June, 1895, and June, 1896, and that they are not substantially correct, and plaintiffs sold him goods, relying on the statements, your verdict must be for the plaintiffs.”

The judge declined to give this request, and charged the jury as follows :

“And I instruct you here, gentlemen, on this point, that, to constitute or make the purchase of these goods fraudulent, there must have been material misrepresentations by Jasspon as to his financial standing, thereby and through such misrepresentations to obtain possession of the goods, intending not to pay for them. Now, I say to you, before plaintiffs can rescind this sale, they must establish the fact of material misrepresentation on the part of Jasspon in reference to his financial standing and responsibility, and that he did not intend to pay for these goods. Now, you can understand that. I have put it in a short paragraph, so you can understand it. If Jasspon, when applied to by the commercial agency,— a means that is used today in the commercial world for informing business men of the standing and condition of the business of others with whom they are dealing, — if he misrepresented in any material matter his ability to pay, his business, his financial standing, it would be a fraud upon these plaintiffs, if it induced a sale and parting of their goods, if he made that misrepresentation for the purpose of inducing the sale by plaintiffs, and intending not to pay for the goods that he got from them.”

If this had been an action of deceit, the charge of the judge would have been unobjectionable, but in an action» of this kind we do not think it a correct statement of the law. When one makes a statement of his financial standing for the purpose of obtaining credit, he must not make a material misrepresentation. If he does, and the vendor, in reliance upon the statement, sells goods, when he learns of the misrepresentation the vendor may rescind the contract upon the ground of fraud, and recover his goods, even though the vendee had intended to pay for them. The distinction is as follows:

“When we come to consider hereafter the distinction between the remedies available to the party who has been deceived by a false representation, and the essential elements of an action of deceit and of a claim for rescission of the contract, it will be seen that the foregoing statement now requires to be qualified. If the deceived party prefers a claim for damages in an action of deceit, it rests with him to show, not only that the representation made was false in fact, but also fraudulent in intent, or at any rate made recklessly or without reasonable grounds for believing it to be true. If, on the other hand, he claims rescission of the contract, it is sufficient for him to prove that the representation was a material one inducing the contract, and was false in fact.” Benj. Sales (7th Am. Ed.), § 429.

P. Cox Shoe Co. v. Adams, 105 Iowa, 402 (75 N. W. 316); National Bank of Merrill v. Lumber Co., 101 Wis. 247 (77 N. W. 185); Skinner v. Hoop Co., 119 Mich. 467 (78 N. W. 547); Genesee Co. Sav. Bank v. Michigan Barge Co., 52 Mich. 164, 438 (17 N. W. 790, 18 N. W. 206); Frisbee v. Chickering, 115 Mich. 185 (73 N. W. 112).

Upon another branch of the case the jury were charged as follows:

“If you are satisfied from the evidence in this case that Jasspon made no misrepresentation as to his standing financially, — as to his property, his ability to answer the obligation against him,— if he made no misrepresentations to the agency when applied to in reference to that matter, his insolvency, if he was insolvent at that time, it would not make the transaction fraudulent. An insolvent (a man that is insolvent) may still have some hope of success, and may properly— If he buys'in good faith, he may properly continue to do business; and it cannot be said that he has perpetrated a fraud upon the parties from whom he buys, even though subsequent conditions may so change that he is compelled to fail in business.”

It is claimed that this was error. We think the charge is sustained by the following authorities: Skinner v. Hoop Co., supra; Belding v. Frankland, 41 Am. Rep.

633 (76 Term. 67), and note; Talcott v. Henderson, 31 Ohio St. 162 (27 Am. Rep. 501); Loeb v. Flash, 65 Ala. 526; Le Grand v. Bank, 81 Ala. 123 (1 South. 460, 60 Am. Rep. 140); Davis v. Stewart, 8 Fed. 803.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    PEOPLE v. HENWOOD.
    1. - Intoxicating Liquors —Local-Option Law — Amendments— Repeal.
    The local-option, law of 1889 (ActNo. 207) was not repealed by Act No. 188, Pub. Acts 1899, which specifically repeals section 7 of the earlier law, purports to amend certain other sections, and adds a new section thereto, requiring druggists to report to the prosecuting attorney all sales of intoxicating liquors.
    2. Same — Submission to Electors.
    Act No. 183, Pub. Acts 1899, which amends the local-option law ' by requiring druggists to report to the prosecuting attorney all sales of intoxicating liquors, but which in no way alters the prohibitory features of the earlier law, is in effect in counties where local option is in force, without its being specially submitted to a vote of the people of the county.
    3. Same — Police Power — Constitutional Law.
    Act No. 183, Pub. Acts 1899, requiring druggists in counties where the local-option law is in force to report to the prosecuting attorney of the county, under oath, all sales of intoxicating liquors, is not a violation of Const, art. 6, § 26, prohib- . iting unreasonable searches and seizures, nor of section 32, providing that no person shall be compelled, in a criminal case, to be a witness against himself, nor be deprived of life, liberty, or property without due process of law, but it is a legitimate exercise of the police power of the State respecting the sale of intoxicating liquors.

      Exceptions before judgment from Van Burén; Smith, J.
    Submitted February 1, 1900.
    Decided March 13, 1900.
    William J. Henwood was convicted of a violation of the local-option law.
    Affirmed.'

      T. J. Cavanaugh and A... J. Mills, for appellant.

      James E. Chandler, Prosecuting Attorney, for the people.
   Long, J.

The respondent was prosecuted for an alleged violation of section 25, Act No. 183, Pub. Acts 1899, which provides:

“Every druggist keeping a drug-store in any county adopting prohibition under this act shall make and swear to, or cause to be made and sworn to, a true written or printed statement, signed and duly sworn to by himself or his clerk, on Monday of each and every week, giving the full name and residence of every person procuring liquor at his drug-store during the last week, the kind and quantity of liquor procured, and the date of procuring the same, and the object for which each purchase was made, and on such Mondays shall deliver or mail, prepaying the postage thereon, the same to the prosecuting attorney of the county where such store is situated, who shall preserve the same in his office; and all such statements shall be open to inspection to all citizens.”

On the trial in the court below no contention was made but that respondent was' a druggist prosecuting his business as such in Van Burén county; that- at the time alleged in the information he made sales of liquors at his drug-store, and did not cause to be made the statements required by such section, or mail or deliver the same to the prosecuting attorney of the county. It was also conceded on the trial that Act No. 207, Pub. Acts 1889, was in force in that county when such sales were made, and that it was in force at the time of the passage of Act No. 183, Pub. Acts 1899. The court below directed a verdict of guilty, and the case is brought here on exceptions before sentence.

Act No. 183, Pub. Acts 1899, is an act to amend certain sections of Act No. 20?, Pub. Acts 1889, and to add a new section thereto, to stand as section 25, and to repeal section 7 of said act. These amendments to the various sections of the act of 1889 change the act in some respects, principally in the mode of procedure in the submission of the question of prohibition of the liquor traffic to the people of the county. Under the amendments, the petition to the board of supervisors must be signed by at least one-third of the qualified electors of the county, instead of one-fourth of the qualified electors, as required by the act of 1889. This petition can be submitted to the board of supervisors only at its next regular or adjourned session. Section 1 of the act of 1889 provided that “the provisions of this section shall not apply to druggists or registered pharmacists in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State.” By the amendment of 1899 that provision is retained, but added thereto are the following words: “And section twenty-five of this act as amended.” Section 2 of the act of 1889 provided that “all sales of liquors by druggists or registered pharmacists in such counties [counties where sales of liquors were prohibited by the act ] shall be under the restrictions and requirements imposed upon them by the general laws of this State.” The amendment of 1899 adds the words thereto: ‘ ‘And this act as amended. ”

Counsel for respondent contend:

That the amendatory act of 1899 repealed Act No. 207, Pub. Acts 1889. We think not; The amendatory act specifically repealed section ? of the act of 1889, and this fact raises a clear implication that no further repeal was intended. Endlich on Interpretation of Statutes ( § 203) says:

“It has even been held that a specific repeal by one statute of a particular section of another raises a clear
implication that no further repeal is intended, unless there is an absolute inconsistency between other provisions of the two statutes.”

There is no such inconsistency here. So far as the- prohibitory features of the law are concerned, they remain unchanged, except that section 35 is added, the requirements of which are merely cumulative.

It is contended that it is necessary to the adoption of Act No. 183 that it should be submitted to the vote of the people of that county. We think this contention cannot be sustained. The prohibitory features of the older act are not changed, and the only additional requirement imposed on druggists is the one requiring the report. The new act was approved April 18, 1899, and went into effect 90 days after the adjournment of the legislature, and without submitting it to the vote of the people. This was. clearly the legislative intent, which is to be gathered from the amendatory act itself. The legislature evidently had no intention to substitute the amendatory act for that of 1889. The provisions of the old law not amended were left in all respects in full force and effect.

It is contended that section 35 of the amendatory act is unconstitutional, in that it violates section 36, art. 6, of the Constitution of this State, which provides that: “The person, houses, papers, and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause.” That it also violates section 33, art. 6, of the Constitution of this State, which provides: “No person shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property without due process of law.” A somewhat analogous question was raised in Robison v. Haug, 71 Mich. 38 (38 N. W. 668). In that case the provisions of section 31, Act No. 313, Pub. Acts 1887, were under consideration. That section provided:

“During the time when, by the provisions of this act, places where liquor is sold or kept for sale must be closed, all curtains, screens, partitions, and other things that obstruct the view, from the sidewalk, street, alley, or road in front of or at the side or end of said building, of the bar or place in said room where said liquors are sold or kept for sale, shall be removed.”

It was the contention that this section was in violation of these same provisions of the Constitution, and also of the fourteenth amendment to the Constitution of the United States. The provisions of the liquor law were upheld in that case, and the reasons there given that it was a part of the police regulations which the State might make in respect to the sale of intoxicating liquors, for the prevention of intemperance, pauperism, and crime. The argument need not be extended here. The same reasons might be applied here.

We find no error in the case, and the conviction must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    FIRST NATIONAL BANK OF COOPERSTOWN v. STATE SAVINGS BANK OF IONIA.
    Partnership — Death op Partner — Firm Assets — Rights op Creditors — Bill to Set Aside Execution Sale — Demurrer.
    Where a bill, filed by a firm creditor to set aside a sale of land under an execution in favor of an individual creditor of the surviving partner, alleged that the land was partnership property, that the firm was heavily indebted to complainant when dissolved by the*deathof one partner, that the land was conveyed to complainant to apply on its partnership debt, and that the defendant had notice of these facts, it was sufficient, and a general demurrer thereto was properly overruled.

      Appeal from Montcalm; Davis, J.
    Submitted February 1, 1900.
    Decided March 13, 1900.
    Bill by the First National Bank of Cooperstown, New York, against the State Savings Bank of Ionia and John Peter Johnson, to remove a cloud from title. From an order .overruling. its demurrer to the bill, defendant State Savings Bank appeals.
    Affirmed.
    The material áverments of the bill of complaint are as follows: Amos Bissell and his son, George N., were co-partners in business in Otsego county, in New York, and as such copartners became owners of the land in dispute, situated in Montcalm county, Mich. Amos died October 29, 1889, leaving his son his sole surviving copartner, and also his sole heir at law. When Amos died, the firm was heavily indebted to comp- mant. Subsequently George and his wife, Hannah, made a contract with defendant Johnson to sell him this land for $600. Johnson took and ever since has been in possession of the land under said contract. On September 26, 1893, George assigned said contract to his wife “as security for the payment of her notes loaned to him. ” Hannah was at that time largely indebted to complainant as indorser and maker of notes and contracts then held by complainant against said Hannah and George, as surviving partner of Amos Bissell & Son. Said notes and contracts related exclusively to the business of the firm, and were given in connection with the firm matters. November 14, 1893, she assigned said contract to complainant to secure the payment of said notes. Complainant notified said Johnson of said assignments. November 23, 1893, George individually and as survivor of the firm executed a quitclaim deed of the premises, together with other lands, to one Brooks, as receiver of said George and of said firm, which deed was duly recorded April 2, 1895. On November 20, 1894, said George, and said Brooks as receiver, executed a deed of said land to one Potter, which was duly recorded April 2, 1895. March 3, 1898, said George and his wife, Hannah, executed a quitclaim deed of the land to complainant, which was duly recorded July 5, 1898. Potter died, and his heirs, on March 3, 1898, executed a deed of the land to complainant, which deed was recorded July 5, 1898. The business of said firm has never been fully settled. The deeds by George and his wife were made in connection with the settlement of said estate. Said firm, at the death of Amos, was indebted to complainant in the sum of $12,000.
    The First National Bank of Ionia obtained a judgment against George October 29, 1891. Execution was issued, levy made upon this land, and the land sold to the First National Bank on April 15, 1895. Johnson and said national bank had full knowledge of complainant’s interest in the land. Said bank had full knowledge that said lands belonged to the firm, that said firm had been dissolved by the death of Amos, that said lands passed into the control of the surviving member, and that the business of the firm had not been settled. 'Said bank also had notice that said lands were all liable to be taken to satisfy the firm debts. Said national bank has become merged in the defendant savings bank. There was no redemption from the sale. On November 10, 1897, the defendant bank persuaded Johnson to accept from it a deed of said land, and to give it back a mortgage for the entire amount then due upon the contract; and both Johnson and the defendant bank then knew that said complainant claimed to own said land, and claimed that it was subject to the debts of said firm. Defendant bank also well knew that the business of said firm had not been settled, and that it was heavily involved in debt when Amos died.
    The bill then avers that complainant, by virtue of the above conveyances, became the owner in fee of the land; that the execution deed is a cloud upon complainant’s title; and prays that it and the mortgage by Johnson to the bank be declared null and void, and that Johnson be decreed to pay to it the amount due upon the contract. It is also alleged that the liability of said Hannah to complainant grows out of her indorsing notes and agreeing to-pay certain debts which were owing to complainant by said firm at the time said Amos died, and that both George and Hannah are insolvent.
    To this bill defendant Johnson interposed an answer in the nature of an interpleader, stating that he is ready to pay the money to whichever party is entitled to it. The defendant bank interposed a general demurrer, which was overruled. It is unnecessary to state the several grounds of demurrer. The learned counsel thus state their position:
    “There are only two questions raised in the case:
    “1. Did the defendant the State Savings Bank have-notice that the premises were partnership property at the time of the execution sale, April 15, 1895, and, if it did, would such knowledge defeat defendant’s execution levy ?
    “2. Did the defendant the State Savings Bank, at the time of its execution levy, have notice of any rights of the-complainant ? ”

      Lemuel & William K. Clute, for complainant.

      George E. & M. A. Nichols, for appellant:
   Grant, J.

(after stating the facts). The defendant, by its demurrer, admits all the averments of the bill. Technical rules of pleading cannot be invoked to aid defendant on demurrer. Averments, though informal and defective, will be held sufficient upon general demurrer if the facts are therein stated with reasonable certainty. Evans v. Railroad Co., 68 Mich. 608 (36 N. W. 687); Story, Eq. PI. (10th Ed.) 404, note 3. It is reasonably certain that the bill of complaint intends to allege, and does allege, that the defendant bank had notice, both at the time of the levy and at the execution sale, of the fact that this land was partnership property, and that the complainant obtained title to it in payment of its partnership debt. We think it sufficiently alleged that the defendant bank levied upon and purchased this property burdened with notice and knowledge of complainant’s rights.

Did such notice and knowledge operate to defeat defendant’s title? Counsel insist that the rights and equities of the creditors of Amos Bissell & Son have been destroyed, for the following reasons:

(1) Because the entire firm assets became vested in George N. Bissell as sole heir at law of Amos, by operation of law, just as much as though Amos had transferred the same to George by deed of conveyance.

(2) By the sale of the property in question by George N. Bissell to John Peter Johnson on the land contract.

(3) By the assignment of the land contract as security from George to Hannah and from Hannah to complainant.

(4) By deed from George N. Bissell and Brooks to Potter and from Potter’s heirs to complainant.

(5) By sale on execution of the joint interest of George and Amos under the execution of the defendant bank.

Counsel, in their argument, overlook the material averment in the bill that the contract, the assignments thereof, and the deeds were all executed for the purpose of effecting that to which creditors of a partnership are legally and equitably entitled, viz., the appropriation of partnership property to pay partnership debts. George Bissell treated the land and made the contract as the surviving partner. It was assigned to secure partnership debts. It has long been the settled law of the State that partnership property must be first applied to the payment of partnership debts, and that real estate owned by a partnership is regarded as personal property for the purpose of paying debts and closing the partnership business. Moran v. Palmer, 13 Mich. 367; Godfrey v. White, 43 Mich. 171 (5 N. W. 243); Merritt v. Dickey, 38 Mich. 41; Way v. Stebbins, 47 Mich. 296 (11 N. W. 166); Hutchinson v. Dubois, 45 Mich. 143 (7 N. W. 714). It is also the universal rule that a surviving partner has the right to apply partnership funds in payment of partnership debts. Story, Partn. § 326. The right and duty of George Bissell, as surviving partner, and the rights of firm creditors, are unaffected by the fact that George was the sole heir of his father, his former copartner. No creditor of George could levy upon and sell the firm assets for his individual debt, unless both he and the firm creditors have in some manner been es-topped to assert, or have waived, their rights. Under the allegations of the bill, they have not done so. We are not called upon to anticipate what the evidence upon the hearing may show. Neither need we now discuss the effect of the failure to record some of the deeds by which complainant claims title until after the levy made by the Ionia National Bank. The bill sufficiently alleges (1) that the land was partnership property; (2) that the partnership was heavily in debt when Amos died; (3) that the land was conveyed to complainant to apply on its partnership debt; and (I) that defendant had notice of the above facts. These allegations make a case sufficient to require an answer and the taking of proofs.

The decree is affirmed, with costs, and the case remanded to the court below, where the defendant will be given time to answer in accordance with the rules and practice of the court.

The other Justices concurred.


text:
    CHANDLER v. GRAHAM.
    1. Quieting Title —Equity—Trial by Jury — Constitutional Law.
    A bill by the grantee o£ the purchaser of land at a mortgage sale, making a defendant of one who had not been a party to the foreclosure suit, but Who was in possession of a part of the premises, claiming title thereto by gift from the mortgagor and adverse possession, praying that defendant’s title be delared not valid and that complainant be put in possession, was, as to such defendant, a bill to quiet title and obtain possession of land without an ejectment suit, and hence would not lie, under article 6, § 27, of the Constitution, guaranteeing trial by jury.
    2. Mortgages — Foreclosure—Disposition op Surplus — Review.
    A purchaser at foreclosure sale, who, finding a third person in possession of a part of the premises, claiming title, filed a bill to compel the administrator of the mortgagor’s estate, in case the claimant’s title be decreed to be valid, to pay complainant, out of the surplus proceeds of sale turned over to him by order of the court, an amount equal to the value of the part withheld, mistook his remedy, his proper course being to seek a review of the question of the disposition of the surplus fund in a proceeding in the original suit.
    Appeal from Hillsdale; Chester, J.
    Submitted February 2, 1900.
    Decided March 13, 1900.
    Bill by Lud S. Chandler against Hannah D. Graham, impleaded with Russell O. Haynes, administrator of the estate of Peter Havens, deceased, to determine the title to certain land and to the proceeds of its sale on foreclosure. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed.

      E. J. March {C: M. Weaver, of counsel), for complainant.

      Grant Eellows and B. D. Chandler, for defendant.
   Hooker, J.

On May 23, 1894, Peter Havens, being the owner of 120 acres of land, mortgaged the same to secure his promissory note for $621 to the Boies State Savings Bank. On March 17, 1897, John McDougal, to whom the mortgage was assigned, commenced foreclosure proceedings in chancery; Havens alone being defendant. On November 27, 1897, Havens died, and defendant Haynes was appointed administrator of the estate, and the suit was revived against him under the rules applicable to such cases. On June 4, 1898, a decree was entered for the complainant, and, on July 20th following, the premises described in the mortgage were sold by the commissioner for $1,601 to one Wilcox. After the sale was confirmed, Wilcox ascertained that defendant Graham was in possession of three-fourths of an acre of the land; claiming that Havens, who was her father, had given it to her, and that she had title by an adverse possesion of upwards of 20 years. Wilcox took a writ of assistance, but the bill does not state that it was served; and he afterwards conveyed the land described in his deed to the complainant, to whom all of the land was surrendered, except the three-fourths of an acre occupied by Graham. Upon a petition duly filed, the court made a decree directing the register of the court, who held the surplus, to pay to the defendant Haynes, the administrator, the sum of $480, which was done. This bill is filed against Haynes and Graham, the latter still being in possession of the small parcel of land. It alleges that this parcel is worth $500, and that, exclusive of this parcel, the land would not have sold for the price bid, and that Mrs. Graham has no valid title. It prays that it be decreed that she is not lawfully entitled to said parcel, and that complainant be put in possession, but, if it shall be found that she has .a valid title, then that it be decreed that defendant Haynes pay over to complainant the surplus received by him. Defendant Graham has demurred to this bill, and the demurrer has been overruled. It is now before us on appeal.

The bill is, so far as Graham is concerned, a bill to quiet the title and obtain possession of land, and nothing else, as she is in no way concerned with any other question involved. It does not appear that she was even made a party in the foreclosure case. It is, to all intents and purposes, a substitute fo'r an ejectment case, so far as Hannah D. Graham is concerned. It has been repeatedly held that such a bill would not lie, under our Constitution (article 6, § 27). Thus, in Moran v. Palmer, 13 Mich. 367, it is said:

‘ ‘ A bill to quiet title will be entertained on behalf of the legal owner when he is not in a position to force the adverse claimant into a court of law to test its validity; but when each party claims the legal title, and a court of law is already possessed of the case, and it is not alleged that either fraud, accident, or mistake has intervened to prevent the possessor establishing his title at law, equity will not interfere.”

See, also, Blackwood v. Van Vleet, 11 Mich. 252. Again, in Tabor v. Cook, 15 Mich. 322, it was held that the legislature could not authorize such a proceeding, without a mode by which the defendant could have a jury trial if he so elected, where the right existed when the Constitution was formed. See, also, Ormsby v. Barr, 22 Mich. 85; Methodist Episcopal Church v. Clark, 41 Mich. 738 (3 N. W. 207); Risser v. Hoyt, 53 Mich. 201 (18 N. W. 611); State Tax-Law Cases, 54 Mich. 363, 373, 411 (20 N. W. 493); Hemingway v. Griswold, 22 Mich. 77; Phelps v. Green, 3 Johns. Ch. 302; Edwards v. Symons, 65 Mich. 348, 354 (32 N. W. 796). These cases are conclusive, so far as the interest of Hannah D. Graham is concerned, and the demurrer should have been sustained as to her.

The administrator of the mortgagor’s estate has received the surplus arising from the sale, under an order of the court, which had full jurisdiction of the parties and the subject-matter. If there is any reason why that order should not have been made, the court has authority to review the question in a proper proceeding in that cause, but we do not find in this bill any facts stated that justify a new suit against the administrator. The bill shows no fraud on his part, that we have been able to discover, although the brief states that misrepresentations were made. It alleges a purchase by complainant’s assignor under a mistaken belief as to title. It makes no offer to set aside the sale and allow the property to be reoffered. In fact, complainant is apparently unwilling to have that done, because he has expended money upon the place since his purchase, though the bill does not so state. If there were fraud on the part of the administrator in causing complainant’s assignor to bid more than he would otherwise have done, and in obtaining the surplus, it would seem that the court having jurisdiction in the foreclosure proceeding should remedy the wrong by a different appropriation of the trust fund.

If complainant’s claim were based on the covenants in the mortgage, the remedy, if there be one, is in another forum.

The decree is reversed, with costs of both courts, with the usual order as to the dismissal of the bill.

The other Justices concurred.


text:
    FINNEGAN v. CITY OF ST. JOSEPH
    Streets — Plat—Dedication—Estoppel.
    A landowner who makes a contract with a city to sell to it for street purposes a parcel of land to be used “as an extension of F. street,” one of the streets shown by a plat theretofore made and recorded by him, is estopped to deny a dedication of F. street to the city for public purposes.
    Error to Berrien; Coolidge, J.
    Submitted February 1, 1900.
    Decided March 13, 1900.

      Ejectment by Henry Finnegan against the city of St. Joseph. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      T. J. Cavanaugh and L. A. Tabor, for appellant.

      O’Hara & O’Hara, for appellee.
   Hooker, J.

Finnegan was defeated in an action of ejectment brought by him against the city of St. Joseph to recover from it the possession of certain premises claimed by the city to be public streets and alleys in what is known as ‘‘Finnegan’s Addition to the City of St. Joseph.” In January, 1892, the plaintiff platted certain lands, and caused the plat to be recorded in the office of the register of deeds. It contained 38 lots, and, as we understand, the streets and alleys in dispute. On April 29, 1892, while one McLin was mayor of the city, the plaintiff petitioned the common council to accept the plat. The plaintiff states that it was rejected, and that the offer was then withdrawn by him, and that he never afterwards presented it for acceptance. The defendant asserts that the subject was referred to a committee, and that it does not appear from the records of the city that a report was ever made.

In 1895, McLin bought 25 lots described on the plat, and then petitioned the council to accept the plat, which he procured from the real-estate agent with whom plaintiff had placed the lots for sale. On March 28, 1895, a resolution was adopted by the council accepting the plat, and this was indorsed thereon, and recorded with the plat. At this time the plaintiff had sold and conveyed all of the lots but four. Of these last mentioned he has since deeded two. One of the streets in dispute is Finnegan street, upon which many, if not all, of these lots front. In April, 1897, — four months before this action was commenced,— the plaintiff made a contract with the city, by which he promised to sell and convey for street purposes “a parcel of land 66 feet wide, extending west from the end of Finnegan street, for the purpose of extending said street,” and it was afterwards deeded to the city, and he received $600 therefor. A suit is now pending to amend this deed. It appears that the city did not attempt to work the streets until the spring of 1897. The court directed a verdict for the defendant.

The important question in this case is whether this land was dedicated and accepted as a street. If there is evidence to the contrary, it is a question for the jury. The plaintiff admits that he made and recorded the plat, and asked the council to accept it. He testifies also that the council refused to accept it, and that he then withdrew it. It seems evident that the plat was not then accepted, and that it was subsequently kept in the possession of the plaintiff. The matter rested, then, as though he had never presented the plat, and the plat had no more significance than a private plat, unless, the conduct of Finnegan was such as to indicate a design to place the streets and alleys under the control of the public as public ways, and to permit acceptance at a subsequent time. He testifies that he did nothing warranting such an inference; that he worked the street himself at his own expense; and that the city did nothing until the spring of 1897, when it attempted to work the way against his protests. There is testimony that he sold nearly all of the lots, and that he acquiesced in a subsequent acceptance of the plat when it was presented to the council by McLin. He disputed this, and said that it was done without his consent. He afterwards made a contract and deed of land used to extend Finnegan street. He admits this, but claims that he did not thereby recognize Finnegan as a public street. He says it was a private street, owned by him, in which his grantees had easements. There is evidence in the case from which the acquiescence of plaintiff in the second presentation and acceptance of the plat might be inferred, but it is not conclusive, because it is disputed. In addition to this, however, he executed and performed a contract recognizing the existence of, and promising to convey other lands to the city for the purpose of extending, Finnegan street, for which he received $500 or $600. My brethren are of the opinion that this conclusively shows a dedication, if it should not be found from the other testimony.

The judgment is therefore affirmed.

The other Justices concurred.


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    CARMER v. HUBBARD.
    1. Appeal from Justice’s Court — Declaration—Demurrable Defect.
    Where a justice’s return on appeal showed that the plaintiff declared orally in an action to recover a statutory penalty for conduct not actionable at the common law, and that defendant pleaded the general issue, the latter could not in the circuit court, for the first time, interpose the objection that the declaration was defective for failure to specify the statute; the defect being one which, on demurrer, might have been remedied by amendment.
    2. Same — Objections—Indefiniteness.
    An objection, in justice’s court, that the declaration is not sufficient to warrant the admission of testimony, is too general to raise the question that the declaration is defective in failing to specify the statute under which the action is brought.
    3. Appeal — Assignments of Error — Waiver.
    Assignments of error not considered in appellant’s brief will be treated as abandoned, though he states therein that no assignment is waived.
    Error to Genesee; Wisner, J.
    Submitted February 2, 1900.
    Decided March 13, 1900.
    Case by Lovina Carmer against Charles L. Hubbard, under 2 Comp. Laws 1897, § 5398, for selling intoxicating liquor to plaintiff’s minor son. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Clarence Tinker, for appellant.

      Johnson & Stevens, for appellee.
   Hooker, J.

This action was commenced in the court of á justice of the peace. The declaration was oral, and was entered in the docket under the statute which requires the docket to show the substance of the pleadings. The entry was as follows:

“The plaintiff declared orally in a plea of trespass on the case for the illegal sale of intoxicating liquor, or furnishing of same, to a minor, and asks damages one hundred dollars or under; to which declaration the defendant pleaded the general issue.”

A judgment was rendered for the plaintiff, and defendant appealed. In the circuit a motion was made at the conclusion of the plaintiff’s testimony to strike out all of the testimony upon the ground that there could be* no recovery under the declaration. The court denied the motion, and is said to have refused to allow an additional return to be made, which was offered to show that the objection was made in the justice’s court. The defendant thereupon introduced testimony tending to show that the alleged sale of liquor to plaintiff’s son, which was the ground of recovery, was untrue. The jury found a verdict for $50, and defendant has appealed.

This was the only point discussed in the brief, though the statement is made therein that no assignment of error is waived. The defendant claims that the declaration will not support a judgment, because it fails to specify the statute— i. e., Act No. 313, Pub. Acts 1887, § 20 (2 Comp. Laws 1897, § 5398 )— -which provides that a person selling intoxicating liquors to a minor shall be liable to the parent in a sum not less than $50, and which statute he concedes to be the only authority for bringing an action for selling liquor to a minor. It is true, as the defendant says, that, where an action is brought under a penal statute, the declaration should show the fact, and, where it does not, the penalty may not be recoverable. Howser v. Melcher, 40 Mich. 185; Chicago, etc., R. Co. v. Sturgis, 44 Mich. 538 (7 N. W. 213); People v. Jones, 49 Mich. 594 (14 N. W. 573); Hitchcock v. Pratt, 51 Mich. 271 (16 N. W. 639); Bateman v. Blake, 81 Mich. 231 (45 N. W. 831). Pleadings in justice’s court are treated with much liberality. Fletcher v. Bradford, 45 Mich. 349 (7 N. W. 905).; Hurtford v. Holmes, 3 Mich. 460; Whelpley v. Nash, 46 Mich. 25 (8 N. W. 570); Chancey v. Skeels, 43 Mich. 347 (5 N. W. 380); Wilcox v. Railroad Co., 43 Mich. 584 (5 N. W. 1003); Daniels v. Clegg, 28 Mich. 32. It is conceded that the declaration in this case stated no common-law cause of action, and that plaintiff’s right of recovery for such a wrong is based solely upon the statute, because it was not actionable at common law. If this is so, the defendant was bound to know it, and he could have known no more had the statute been pleaded. While we do not intimate that this would relieve a plaintiff from the necessity of pleading the statute in a formal declaration, it makes less doubtful the propriety of applying the doctrine laid down in Burke v. Wilber, 42 Mich. 327 (3 N. W. 861), viz.:

“A declaration cannot be objected to in the appellate court for insufficiency if it was not demurred to, and if it set forth the facts intelligibly, and the proofs made out a sufficient case, and furnished ample material for amending it to satisfy the technical rules of pleading.”

We think this declaration might have been amended in the justice’s court, had a demurrer been interposed. Instead, the general issue was pleaded, and a trial had, and an appeal taken, and another trial had. It is claimed that this question was raised before the justice, but the return does not show it, and the objection which counsel says appears from the minutes is a general one, which is not well calculated to call attention to the precise defect relied on. The court properly refused to permit an additional return. We think the point is not well taken. The other assignments of error will be treated as abandoned, as counsel omits to point them out in his brief. Sup. Ct. Rule No. 40 and notes.

The judgment is affirmed.

The other Justices concurred.

       Counsel claimed that a further return would show that he raised the objection in justice’s court that the declaration was not sufficient to warrant the admission of evidence


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    FIRST NATIONAL BANK OF CHICAGO v. CITIZENS’ SAVINGS BANK OF DETROIT.
    1. Banks and Banking — Forwarding Collections — Negligence. In the absence of instructions to do so, it is negligence for a bank to which a certificate has been intrusted for collection to send it direct to the drawer; and such negligence makes the sender liable for any loss resulting.

    2. Same. A bank sent a certificate of deposit, issued by a bank in B., to a bank in D. for collection, with the statement: “We note you have a correspondent at B. Please collect at your best rate-of exchange.” The only bank at B. with which the D. bank could have corresponded was the one which drew the certificate, which fact was known to the forwarding bank. The D. bank believed its correspondent to be entirely solvent, and, upon receipt of the certificate, forwarded it direct to such bank for collection. The bank at B. failed without paying the certificate. Held, that the instructions to the D. bank relieved it of a charge of negligence in forwarding the certificate direct to the drawer.
    Error to Wayne; Lillibridge, J.
    Submitted February 2, 1900.
    Decided March 13, 1900.

      Assumpsit by the First National Bank of Chicago against the Citizens’ Savings Bank of Detroit to recover the amount of a certificate of deposit sent to defendant for collection, and claimed to have been lost through defendant’s negligence. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Barbour & JRexford, for appellant.

      Bowen, Douglas'& Whiting, for appellee.

       As to sending checks directly to drawee bank, see note to Anderson v. Rodgers, (Kan.) 27 L. R. A. 248.

   Long, J.

On September 6, 1898, the plaintiff bank received for collection from the National Bank of California, at Los Angeles, a certificate of deposit for $1,650, and interest thereon, issued to the order of J. R. Wallace by B. F. Parsons, a private banker at Burr Oak, Mich., under date of February 2, 1898. The certificate was indorsed and made payable by Wallace to the order of the Bank of Whittier, Cal., by it to the National Bank of California, and by it to the First National Bank of Chicago. On September 6th, the day of its receipt, the First National Bank of Chicago indorsed and made it payable to the order of the defendant bank, and forwarded it by mail to that bank at Detroit, with the following instructions:

“The First National Bank oe Chicago.
“Chicago, III., Sept. 6, 1898. “Citizens’ Savings Bank,
“Detroit, Mich.
Dear Sir: I inclose items as per statement below for collection and returns.
“Yours respectfully,
“R. J. Street, Cashier.
“Protest all paper unless otherwise instructed.
“Burr Oak, 1,650.00 and Int.
38.50
1,688.50
“Telegraph if not honored (rubber-stamped).
' * ‘ Do not hold any of our collections after due for any reason whatever, except upon special instructions from us. Return at once if not paid.” •

Accompanying the above letter, and pinned to the certificate of deposit, there was a red slip, as follows:

“Citizens’ Savings Bank,
“Detroit, Mich.:
“We send this C-D for $1,650.00 and Int. to you for collection, as we note that you have á correspondent at Burr Oak, Mich. Please collect for us at your best rate of exchange, and oblige,
“First National Bank,
“A. Chicago.
“ 9-6-’98.
“Kindly take this ticket off before forwarding to Burr Oak.”

Also accompanying the certificate, and pinned to it, were two slips, of which the following are copies:

“608.
“Telegraph if not honored. If telegraphing, communicate only with the First National Bank of Chicago, 111. (giving date of their indorsement stamp), who will give instructions direct.”
“First National Bank,
“ Chicago.
“Collection. No. 8.
“Acc’t Nat’l Bank of Cal.,
“Los Angeles, Cal.
“Date, Sept. 6, 1898.
“Burr Oak, $1,650.
“Int.,
“T. N. P.
“8-3.
‘ ‘ Do not write or mark or stamp on this ticket.
“Protest.
“Return promptly if not paid.”

The agent of the First National Bank of Chicago, who forwarded the certificate to defendant, testified on cross-examination that:

“The certificate was sent to the defendant bank, — a bank, as a rule, we never send anything to. We sent it to them for the simple reason that we presumed that they knew all about this D. F. Parsons, having had his account for several years, and we didn’t know anything about him. He was a private banker in Burr Oak, Mich. I had sent items to Parsons for a number of years previous to this, — small items; but I had never sent him as much money as that. I had no sufficient knowledge of him to send him more.
Q. This red ticket states: ‘We note you have a correspondent at Burr Oak.’ Do you know who that correspondent was that you noted at that time ?
“A. There being only one bank at Burr Oak, there could not be any question about it. He was D. F. Parsons.”

It appears that the defendant bank, on receipt of the certificate of deposit from plaintiff, which was September 7, 1898, sent it forward to D. F. Parsons, Burr Oak, Mich., stating that it was inclosed for collection, and asking him to report promptly. Parsons received this certificate, and on the 12th of September handed it to his clerk, and told him to give the Citizens’ Savings Bank of Detroit credit for it. The clerk testified that, according to the books of D. F. Parsons, there was a balance in the Citizens’ Savings Bank due Mr. Parsons of about $28,000. The clerk testified, further, that it was the custom of business that when the Citizens’ Savings Bank sent collections to Mr. Parsons, if it was a certificate, they merely gave the bank credit on the books; if it was a check or draft for collection, they would collect it before they gave credit; that business had been conducted in this way for over five years. The witness further testified:

“We would remit to the Citizens’ Savings Bank every day, or twice a day, or once in two or three days. If our books showed a balance to the Citizens’ Savings Bank in our favor, we would remit just the same. We would not remit to the Citizens’ Savings Bank for a draft or check drawn on our bank. The Citizens’ Savings Bank had never sent anything on our bank for collection before that was drawn on us, and I didn’t notice this was until after-wards. My father made an assignment for the benefit of creditors on the night of the 13th of September, 1898. Mr. Himebaugh, the assignee, has the statement the Citizens’ Savings Bank rendered. On September 15, 1898, I did not know anything about my father’s indebtedness to the Citizens’ Savings Bank. What I have learned about it since is what has been told me. Within ten days or two weeks after his assignment, my father left Burr Oak, and does not live there now.”

The cashier of defendant bank testified that he received this certificate of deposit on September 7th, and on the same day he forwarded it, on regular collection letter-head, to Parsons, with instructions to remit. The witness was then asked: “Q. What construction did you place upon Exhibit 3 ? ” (Exhibit 3 is the letter to the defendant bank in which it was said: “We send this C-D for $1,650.00 and Int. to you for collection, as we note that you have a correspondent at Burr Oak, Mich.”) This was objected to, and objection sustained. “Q. How did you regard Mr. Parsons at that time financially ? ” This was objected to; and the court said:

“It seems to me that this is not the point. If they thought that he was responsible, didn’t they assume the risk? Here is a note one of us has made for a large amount. We all know the usual practice of sending a note for collection is not to send it to the maker of the note. While in a good many instances it would be safe to send a note to the maker of it, does not the bank always take the chances, as a matter of law ?
‘ ‘ Counsel for Defendant: It does unless its instructions are to the contrary. I do not claim here without instructions we were justified in sending this to Parsons; but what I claim is the instructions were positive to send it to him, and I wish to show that Mr. Tillotson [the cashier of defendant bank] so construed it, and that was his honest construction of the memorandum. Further, we have a letter from the First National Bank of Chicago in which they acknowledge that to be the construction.
“The Court: I have ruled, in effect, that that memorandum is not susceptible of that construction. You have an exception to that.
“Counsel: Your honor holds that that is not an instruction to the Citizens’ Savings Bank to send it direct to Parsons ?
“The Court: Yes.”

The defendant bank, not having heard from Parsons, on the 12th of September wrote him to send funds sufficient to meet the certificate. Nothing further was heard from Parsons on the subject. He failed and left the State, and his estate, as repoi’ted by his son, was not worth eight cents on the dollar.

The cashier of defendant bank was interrogated further in reference to his good faith in sending the certificate direct to Parsons, and the testimony ruled- out. He further testified:

“ There was no arrangement between our bank and him by which he was authorized, instead of sending currency direct to our bank, to give the bank credit. That would not be allowed any more than we would pay his check if he did not have the money to his credit in our bank. I first learned that he was insolvent, or that his credit was not good, on September 15th. On September 7th, when this collection was received from Chicago, Parsons was owing our bank $4,000.”

Some considerable correspondence was had between the plaintiff and defendant banks in reference to the matter. On September 21st the plaintiff wrote the defendant as follows:

“Chicago, Sept. 21, 1898.
“Citizens’ Savings Bank,
“Detroit, Michigan.
Gentlemen: We have your favor of the 19th inst. In sending the item to you as we did, we suppose that it was intended to have the advantage of your knowledge of Parsons. We were aware that his was the only bank at Burr Oak, but we thought that you would know enough about him not to send to him an item on himself for $1,650, unless you had and were warranted in having considerable confidence in him. You say nothing on this point. Kindly let us know how you regarded Parsons. Our correspondent in Los Angeles is inquiring sharply of us to see if there is not some responsibility ‘ somewhere ’ for this loss. Yours truly,
“R. J. Street, Cas. O. P.”
The defendant replied to this letter as follows:
“Detroit, Sept. 23d, ’98.
“R. J. Street, Cashier,
“Chicago, 111.
“Dear Sir: In answer to yours of the 21st inst., regarding the certificate sent to D. F. Parsons, of Burr Oak, who recently failed, I would say that we have had entire confidence in Mr. Parsons’ integrity and ability to pay. We had heard nothing detrimental to his financial standing. His rating is from $30,000 to $35,000 in Dun’s, and we were at the time carrying $4,000 of loans to him, which was less than the orginal amount loaned him, and he had always been business-like in his dealings with us. If he had wanted to borrow money, we should have loaned it to him, and we had no intimation whatever that there was anything wrong there. I have requested the assignee to return the certificate, unless he would remit for same.
“Yours respectfully,
“Frank F. Tillotson, Cashier.”

The certificate was not protested, and the plaintiff bank was not notified of its nonpayment until September 15th.

The declaration by which the suit was commenced counts upon the negligence of the defendant bank in sending the certificate to Parsons for collection, and also upon the negligence of defendant in not notifying plaintiff of its noncollection until September 15th; also, for not protesting the certificate for nonpayment. The common counts in assumpsit are added. The court directed the j ury to return a verdict in favor of the plaintiff for the amount of the certificate and interest. Counsel asked the court to direct the verdict in favor of defendant. This was refused, and the refusal constitutes the principal assignment of error.

The main question in the case, and in fact about the only question, is whether the defendant was justified in sending the certificate directly to Parsons for collection. It is conceded by counsel for defendant that, in the absence of instructions to do so, it is negligence to send the collection directly to the drawer, and such negligence makes the sender liable for any loss resulting. We think this rule is sustained by the authorities: Merchants’ Nat. Bank v. Goodman, 109 Pa. St. 428 (58 Am. Rep. 728); Drovers’ Nat. Bank v. Provision Co., 117 Ill. 100 (7 N. E. 601, 57 Am. Rep. 855); German Nat. Bank v. Burns, 12 Colo. 539 (21 Pac. 714, 13 Am. St. Rep. 247); First Nat. Bank of Evansville v. Fourth Nat. Bank of Louisville, 6 C. C. A. 183, 56 Fed. 967.

But it is contended that the instructions from plaintiff to defendant were to send the certificate of deposit directly to Parsons for collection; that this is to be gathered from the terms of the letter; that the direction, “collect at your best rate of exchange,” implies this, from the fact that there was no other bank at Burr Oak. We think in this defendant’s counsel are correct. Any other mode of collection would not have been in compliance with instructions. The defendant could not send the certificate through the express company, as it could not be collected at the best rate of exchange in that way. The further direction, “Kindly take this ticket off before forwarding to Burr Oak,” is consistent only with the idea that the collection was to be sent directly to the Parsons bank. The plaintiff, in its letter forwarding the certificate, calls attention to the fact that the defendant has a correspondent at Burr Oak, and then says: “Please collect at best rate of exchange.” Under these circumstances, we think the defendant was justified in so sending the collection, especially as Parsons had a rating with R. G-. Dun & Co. of from $30,000 to $35,000, and the defendant’s officers had entire confidence in him. But, aside from this, it is quite evident from the correspondence following that the plaintiff construed its own letter to mean that defendant was instructed to send the collection direct to Pársons. In the letter of plaintiff of September 16th the inquiry is made: “State whether the item was sent direct to Parsons, or through some other agency at Burr Oak.” On the 19th the defendant wrote plaintiff that it had been sent direct to Parsons, and on the 21st the'letter is written by plaintiff heretofore quoted. In that letter it was said:

“In sending the item to you as we did, we suppose that it was intended to have the advantage of your knowledge of Parsons. We were aware that his was the only bank at Burr Oak, but we thought that you would know enough about him not to send to him an item on himself for $1,650, unless you had and were warranted in having considerable confidence in him.”

In other words, it is apparent that the very purpose of the item’s being sent to defendant was because it had knowledge of Parsons’ responsibility, and that it could be collected by defendant at better rates than plaintiff could collect it for from Chicago. As Parsons had the only bank at Burr Oak, it must have been anticipated by plaintiff that defendant would, if it believed Parsons responsible, send the collection directly to him, and thus obtain the best rate of exchange. No question is made but that the defendant acted in the utmost good faith, believing that Parsons was perfectly responsible. The collection was sent Parsons on the 7th. The 10th, being Saturday, was a half holiday. On Monday, the 12th, the defendant, not having heard from Parsons, made inquiry about the collection, and learned that he had failed. The plaintiff was notified immediately. We think the defendant was not negligent in any particular; and the court below should have directed the verdict in favor of defendant.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.