text:
    Charles G. Wing v. The Commercial and Savings Bank, Antoine E. Cartier, and Haven S. Fuller.

      Equity jurisdiction — Banks and "banking — Authority of cashier— Payment — Estoppel.
    1. Upon the facts stated in the opinion, equitable jurisdiction is held to have been properly invoked.
    2. Usually, the authority of the cashier of a bank is a limited authority, and a party seeking to show a release by the cashier from liability upon commercial paper held by the bank, except in the ordinary course, must show that the cashier had authority from the directorate, or that the act had been ratified or acquiesced in by the bank. Such authority, however, may be shown expressly or by necessary implication, or it may be established by the particular usage, practice, or mode of doing business of the bank.
    '•3. If a cashier is allowed to exercise general authority in respect to the business of the bank for a considerable time, — in other words, if he is held out to the public as having authority in the premises, — the bank is bound by his acts, as in case of an agent of any other corporation, by whatever name he may be designated, in the same manner as if authority were expressly granted.
    4. Upon the facts stated in the opinion, the defendant bank is held estopped from repudiating the agreement of its cashier to release the complainant from liability on a note given by him to the bank, and said note is further held to have been paid.
    Appeal from Mason. (McMahon, J.)
    Argued October 5, 1894.
    Decided January 22, 1895.

      Bill to cancel a promissory note, and to restrain the further prosecution of an action at law thereon. Defendants-appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      G. G. Wing (H. IT. Wheeler, of counsel), for complainant.

      Fitch & Reardon (Dovel & Smith, of counsel), for defendant bank.

      M. B. Danaher, for defendant Cartier.
   McGrath, C. J.

In the early part of April, 1892, Charles T. Sawyer and Don F. Cargill obtained from one Charles Mears, of Chicago, an option for the purchase of about 2,000 acres of land lying immediately north of the city limits of Ludington, Mich., for the sum of $15,000. They then held a conference at the office of the defendant bank with the defendant Fuller, who was the cashier of the said bank, and the complainant, Charles G. Wing, at which it was agreed that the four parties named should organize themselves into a body corporate, purchase said lands, and engage in a scheme for developing the city of Ludington, popularly known as “booming.” They were to grant bonuses to manufacturing establishments to induce them to locate their plants in Ludington, expecting, as it is fair to assume, that the resulting appreciation in real estate values would eventually, if not at once, bring them a fair return, at least, for their investment and enterprise. It was agreed by Fuller that the defendant bank would furnish, upon the notes of .the individual corporators, all money necessary to buy the said lands.

A corporation was accordingly formed, with the four individuals aforesaid as its stockholders. The corporation was known as the “ Development Company of Ludington,” and each of the four corporators held . an equal share of its capital stock. The complainant herein was chosen its president, and said Fuller its secretary and treasurer. The defendant bank, through the manipulations of Fuller, furnished the funds to purchase the lands aforesaid, taking three notes, each dated April 11, 1892, due in four months from date, and each for the sum of $5,000, making up the $15,000, the purchase price of the Hears land. One of these notes was signed by Wing, the complainant, as maker, and indorsed by the other three parties,' a second was signed by Sawyer, as maker, and indorsed by the others; and the third was signed by Oargill, as maker, and indorsed by the other three corporators of the development company.

The note first above mentioned is the one more particularly in issue in this case. It reads as follows:

“ $5,000. Ludington, Mich., April 11, 1892.

Four months after date, I promise to pay to the Commercial and Savings Bank, or order, five thousand dollars, at the Commercial and Savings Bank, Ludington, Mich., for value received, with interest at 8 per cent, per annum, until paid.

O. G-. Wing..

[Indorsed] “H. S. Fuller.

“D. F. Cargill.

Chas. T. Sawyer.”

The deed of the land from Charles Hears- was taken*directly to the defendant bank. Within a short time afterwards the development company purchased 80 acres-of land in the same locality, known as the “Danaher & Helendy Addition,” for the sum of $2,000, and' still another 40.acres, known as the “McDole 40,” for $600. The defendant bank also furnished the money for these purchases upon the notes of the company, indorsed by the individuals aforesaid.

The development company proceeded, largely under the direction of Fuller, to carry on the booming business*. Great expenses were incurred. One hundred and sixty acres of the land was platted into city lots, and a great public sale of these lots was advertised in July, 1892. ^Excursions from Chicago and other points were advertised; ■•a barbecue provided. At the sale about $10,000 worth of 'the lots were disposed of. The reckless expenditures of money by the management, however, consumed a large part, if not all, of the proceeds of the sale. Fuller had been the guiding spirit in these schemes, and his conduct of affairs gave rise to dissensions among the stockholders of the development company. Some conferences were held, and the complainant, after investigating the affairs of the company, insisted that it was in a perilous situation, and that an assignment must forthwith be made by the company for the benefit of its creditors. To this course Fuller strenuously objected, on the ground that such a course would be highly injurious to the defendant bank, as the latter held so much of the paper of the company that its standing and credit would be impaired if the facts became known and the company should assign. Fuller Asked the complainant to sell his interest to him (Fuller) in the company; and this the complainant agreed to do, provided he could be released from all liability on his obligations to the bank on behalf of the company. Fuller readily promised the complainant to indemnify him against his liabilities to the bank on the development company’s paper; but the complainant refused to accept Fuller’s undertaking, and said he would - deal only on condition that he could deal with the bank itself; that, if the bank ■would release him, he would step out of the development company, and Fuller might manage its destinies as he pleased. Fuller then undertook to give the release of the bank, and, in pursuance of that understanding, executed And delivered to the complainant a release in the following words:

“In consideration of the assignment of his 600 shares in the development company and a mortgage this day given by said company on its lands, the Commercial and Savings Bank of Lndington does hereby release C. G-. Wing from his liability as indorser on all notes heretofore given by the development company to this bank, amounting to over $20,000, being notes given for purchase price of the Mears land, the Danaher & Melendy land, the Mendelson factory, .and a few smaller notes.

[Seal of Bank.] “H. S. Fuller, Cashier.’;

Immediately below this, and on the same sheet of paper, was the following:

“ In addition to the above release, I do personally guarantee that I will secure other indorsements for the development company paper in place of the name of O. G-. Wing, when the same shall mature.

“Dated, August 1, 1892. H. S. Fuller.”

The notes matured on August 15, 1892; and about that time complainant asked Fuller for the notes, and was assured by him that they were paid, and would be delivered up. He said that some of the notes had been deposited .as collateral, and had not been gotten in yet, but would be in a few days, and would be canceled and delivered up. In the meantime the stock of Sawyer and Cargill had been purchased by Fuller, who was now the sole proprietor of the assets of the development company, and its sole stockholder, except the 600 shares held by the bank. Sawyer and Cargill were to be released also, and about the same time they made inquiry for the notes. Mr. Sawyer especially inquired several times, and was answered over and ■over again, almost impatiently, that the notes had been paid, and would be delivered up in a few days. It was not claimed that Sawyer and Cargill had bargained for their release from the bank, but Fuller had acquired their .stock, and was to release them himself.

It is not claimed that any of the other directors or officers of the defendant bank had any actual knowledge' of these transactions, or took any part in them. Fuller' and his relatives and personal friends, all of them nonresidents of Ludington, owned a majority of the stock of defendant bank; and Fuller, as he often boasted, was the' sole manager, and could do anything he pleased in relation to the management of the bank. He openly asserted this on different occasions, and his course of conduct lent all possible color to the claim. He advanced the money' of the bank to build a club-house in the city of Ludington. He took stock in manufacturing companies, and did other extraordinary things for the cashier of a bank to do, without any protest on the part of the resident directors-of the bank. The directorate was made up of men totally' unacquainted with banking, men engrossed in other affairs,, and who had neither time nor inclination to look after' the affairs of the bank. They voluntarily left all matters to the discretion of Fuller; seldom held meetings of the directors; and it is uncertain, under the evidence, whether a meeting was held between the 1st of April and the 15th of August of the year 1892. Mr. McMaster, the vice-president, says he thinks there must have been a meeting between those dates, but is not sure .of it. Mr. Hath, another director, has no recollection on the subject, and says he seldom attended the meetings when they were held. It appears from all the testimony that the boast of Fuller that he controlled the bank was not an empty or idle one by any means. It does not appear that the outside stockholders took their stock on the express condition that Fuller should have absolute control, or that there was any express agreement to that effect. It does not appear whether the directors had actually voted to confer unusual powers upon Fuller, but it does appear that he claimed and exercised them without let or hindrance on all occasions. He was by sufferance, if by no other authority, something more than a cashier; he ,was the manager'of the bank.

At the time these negotiations were going on, it was talked in Ludington that there was a necessity for the organization of a new development company to carry forward the work begun by the old company, but which it had proved inadequate to carry out. To this end a meeting was held in the office of E. P. Bishop, at which a large number of the leading citizens of the city were present, and among them the cashier, the president, the vice-president, and several of the directors of the defendant bank. At that meeting a full statement was made of the affairs of the old development company, showing the amount of its indebtedness to the defendant bank and to others. It was considered to be of prime importance that no default should be made in carrying out the promises made by the development company; and the projectors of the new company proposed to be formed felt that they must pay such a price for the assets of the old company as would discharge all its just debts. It was a matter of common notoriety in the city that the defendant bank was carrying a large amount of the development company's paper, and was in peril on account thereof. It was a part of the plan of the public-spirited citizens engaged in the movement that they should and must relieve the bank from its embarrassment. For the purpose of ascertaining the amount necessary to accomplish the purposes in view, a committee was appointed to examine into the affairs of the old company, and report. To this committee, Fuller exhibited his vouchers for expenditures of the old company, and all the matters were allowed, except what Fuller had paid for the stock of Sawyer and Cargill, and some item of expense for an excursion steamer, which the committee found was unauthorized; and they found that, if they paid #33,000 for the assets of the old company, that amount would liquidate all the indebtedness of the old company, relieve the defendant bank of all its development company paper, and accomplish all the purposes they had in view. Fuller, the sole owner now, with the bank, of the assets •of the old company, conducted the negotiations on one side, with the committee on the other; and, finally, the committee agreed to a price of the amount aforesaid to be paid by the new company for the assets of the old, not because they were worth that sum, but because the sum would set right all the blunders which had been made, .and redeem all obligations in good faith.

The new company was organized on September 8, 1892, and incorporated under the name of the Citizens’ Development Company.” The new company, when organized, ratified the action of the committee, and purchased the assets of the old company at the price of #33,000. All except two of the directors of the bank, residing in Ludington, became stockholders in the new company. Fuller .subscribed for #7,500 in the stock, and Cartier, the president of the bank, for a like amount; others took smaller amounts. On September 20, 1892, at the request of Fuller, complainant, who still remained nominally the president •of the old company, executed a deed of all the lands of the old company to the new, and delivered it to Fuller, without compensation or question, relying, as he says, and as seems altogether probable, upon the release he held from all liabilities on account of the old company. On September 24, 1892, the defendant Fuller delivered the deed just mentioned to Stray, the treasurer of the new company, and Stray paid to him #32,628.75, being the purchase price aforesaid, less 6 per cent, for 90 days on a part of the stock subscidptions, for cash. About #11,000 of this amount was deposited by Fuller in the First National Bank, to the credit of the defendant bank, and was soon afterwards used by the latter to purchase exchange on Chicago, Detroit, and New York. An amount of $7,000, less the discount, was made up of certified checks of different subscribers, and $15,000 was made up of two checks, or due-bills, rather, of Fuller and Cartier, for $7,500 each, less the discount, for their stock in the new company. This was all received by Fuller as so much cash, and with the express understanding that it was to pay and discharge all the paper held by the defendant bank, and given by or on behalf of the old company. This was his agreement with those liable on the papei’, and with the subscribers to the stock of the new company, and was the understanding under which, beyond any possible question, the money was paid to him. It was paid to him as the proper officer of the bank to receive payment of bills receivable held by it, and was received by him for this special and particular purpose.

In December, 1892, it became evident that Fuller’s management of the defendant bank was too liberal for its means, and, as he was largely indebted to it, he assigned a large amount of stock and securities to the bank to secure it. On January 1, 1893, Fuller was removed from his position as cashier, and W. L. Hammond was appointed to succeed him. On January 13, 1893, Fuller paid the interest on the note in question to the new cashier, and the payment was indorsed on the note by the latter. No mention was made of the existence of this note or any claim made upon it until June 28, 1893, when Hammond, the cashier, wrote a letter to the complainant, asking him to call and pay the note. The complainant refused to do so, and on July 10, 1893, a suit was commenced by the bank against Wing on the note. On July 14, 1893, complainant served upon the attorneys for the bank in the suit at law two interrogatories, asking that they answer whether the bank had any other or further claim against him than the note sued upon, and- what had become of the two notes given at the same date, as well as the notes given by the development company, and indorsed by him and others. The attorneys for the bank refused to answer .these interrogatories in any way, and this suit was commenced soon afterwards.

Complainant, in his bill, asks relief as follows:

1. That the defendant bank may answer the two interrogatories hereinbefore mentioned.

2. That the defendant bank may answer how much money was paid to it on September 10, 1892, by the Citizens’ Development Company, and to what extent such money was used in the liquidation of the three notes given on April 11, 1892, for the purchase price of the Mears .land, and in the payment of the notes subsequently given for the purchase of other lands by the development company.

3. That the defendants Fuller and Cartier may answer the same question, and also state how much they each paid on their subscriptions of $7,500 each to the capital stock of the Citizens’ Development Company.

4. That the defendant bank may be decreed to be a trustee for the use and benefit of the complainant for all money it has received by reason of its holding of 600 shares of the capital stock of the old development company assigned to it by complainant, or by reason of the •deed to the new company of the lands, of the old comqoany; and that said moneys may be set off against any claim the bank may have upon any of said notes; and that said notes may be surrendered and canceled by order of ■the court; and that said bank be declared to be equitably ■estopped from asserting any claim upon any of said notes.

5. That defendants Fuller and Cartier may be declared trustees for the use and benefit of the complainant for all moneys or other valuable property received by them by •reason of the deed aforesaid, and that they be decreed to q)ay the same into court for the use of the complainant, and for such distribution as the court may find to be equitable.

6. That the defendant bank may be temporarily and perpetually restrained from further prosecuting its suit at law.

Defendant Fuller did not answer. The bank and Car•tier answer separately, and deny any knowledge of nearly ■ all the facts charged in the bill. They say they never •knew of the transactions between complainant and Fuller; deny that they ever received any money from the sale of the • lands of the old development company to the new, or on •account of the 600 shares assigned by complainant to the •defendant bank.

In answer to the interrogatories the bank answers that it has no other or further claim against complainant except the note for $5,000, sued upon.

“ That it has no knowledge of the note dated April 11, 1892, for $5,000, signed by H. S. Fuller, as maker, and .indorsed by complainant, C. T. Sawyer, and D. F. Car-:gill, nor of the other notes mentioned in said first interrogatory, except a note for $5,000, dated May 24, 1892, •made by the development company, and indorsed by said parties. Defendant has in its possession said last mentioned note, and also a note of $200, dated May 26, 1892, and one of $500, dated April 11, 1892, each made by said development company and indorsed by said parties, which .said notes are stamped “paid,” and defendant stands ready to deliver the same to the proper representatives of the maker thereof at any time.

“That there was no money paid to said bank on Sep'tember 20, 1892, by said Citizens' Development Company, but, as hereinbefore stated, the money paid by said company, in so far as this defendant has knowledge, on the purchase of the old development company property, was paid to the then treasurer thereof, and by him used in the payment of obligations of complainant and his said • associates; nor has this defendant received any money or other thing belonging to said complainant which it could or should in law or equity apply upon said complainant's ■ said indebtedness to this defendant.”

It is first insisted on behalf of defendants that complainant's remedy in the suit at law is adequate, and that ■this bill does not lie. Complainant was the maker of the •note upon which the suit at law was brought, but he was •also the indorser upon other notes of the development company, which had been given to the bank. None of these notes had been Surrendered. The bank had refused to disclose whether or not it claimed to hold complainant upon these indorsements.' The note sued upon was but a part of the transaction. The $33,000 had been raised to-liquidate the indebtedness of which these notes were a part. That sum had been paid over to Fuller, as cashier of the bank. Cartier, the president of the bank, and others of the directorate, had participated in the raising of the fund. If it had not been applied as contemplated, complainant was entitled to an accounting and to such application. We think, with the trial court, that the institution of this suit was a proper proceeding, and that equity has properly been invoked in the interests of complete justice and adequate redress.

This brings us to a consideration of the merits of the case. This is not a case where a cashier with limited authority has, in consideration of a transfer of stock, undertaken to release a party from liability upon paper held by the bank without the knowledge of the directorate or ratification by that body. The rule undoubtedly is that usually the authority of a cashier of a bank is a limited authority, and that a party seeking to show a release by the cashier from liability upon commercial paper held by the bank, except in the ordinary course, must show that the cashier had authority from the directorate, or that the act had been ratified or acquiesced in by the bank. That authority, however, may be shown expressly or by necessary implication, or it may be established by the particular usage, practice, or mode of doing business of the bank. If a cashier be allowed to exercise general authority in respect to the business of the bank for a considerable time, — in other words, if he is held out to the public as having authority in the premises, — the bank is bound by his acts, as in case of an agent of any other corporation, by whatever name he may be designated, in the same manner as if authority were expressly granted. The directorate of a bank cannot be permitted to neglect its duties, abandon the management to the cashier, permit him openly and notoriously and without rebuke to deal with the public as having authority, and then escape responsibility. Hirschmann v. Railroad Co., 97 Mich. 384. The official title confers the powers usually exercised in the ordinary course by such officers, and none others; but the directorate cannot be allowed to hold him out as having ample authority, and then repudiate his acts. In the present case the directors rarely met, and then only at the solicitation of Fuller, when, in his opinion, the emergency called for such meeting.

This transaction originally involved a loan of $15,000 from the bank, which sum was afterwards increased. The title to the land purchased was vested in the bank, and afterwards conveyed by the bank to the company. The directors profess to have had no knowledge of these transactions; indeed, the president of the bank testifies that he did not know, at the time of the formation of the new company, that the bank held this paper, aggregating the sum of $15,000. The president and several of the directors say that they did not learn of the transfer of the stock to the bank until the hearing in the present case, in January, 1894. Yet it is in evidence, and not disputed,, that in July, 1893, the new cashier of the bank, upon request, produced from the archives of the bank the stock, with the transfer thereof. The reason given by each of the directors for the change of cashiers on January 1, 1893, is that Fuller’s management of the affairs of the bank was unsatisfactory. It remained for the bank examiner to inform the directors as to the condition of the affairs of the bank, and to disclose to the directors that Fuller was indebted to the bank to the extent of $30,000. This condition was apparent upon a cursory examination of the books of the bank and the notes and securities held by it. Fuller does not appear to have covered up his transactions. The directors of a bank are chargeable with such knowledge as reasonable and ordinary attention to the duties of the office would have disclosed. The note sued upon became due August 14, 1892, thirteen days after the stock had been transferred to the bank. The note remained in the bank, and, as it is claimed, unpaid, until six months after Fuller’s successor had been chosen, and until June 28, 1893, before any claim was made against complainant upon it. In the meantime, with the knowledge of the officers of the bank, $33,000 had been paid over into the hands of the cashier of the bank for the express purpose of the payment of this very note, then past due, with other liabilities of the old company. The bank officials insist that this money was paid over to Fuller as treasurer of the old company, then defunct. But although one of the principal objects of the formation of the new company was the relief of the bank, although the bank was the principal creditor of the old company, although the money was turned over to its cashier for the express purpose of paying the indebtedness to the bank and other indebtedness, yet these bank officials gave no heed to its application, but allowed Fuller to appropriate the money due the bank to his own use, and, for months thereafter, this matured note remained as part of the assets "and bills receivable of the bank.

The record clearly shows that Fuller was permitted by the directorate to exercise unlimited authority; that he took this transfer of stock, and gave this release, to prevent an assignment by the development company and consequent injury to the bank; that he controlled the affairs of that company, claiming to act in the interest of the bank; that he brought about the formation of the new ■company, and secured the avails of the subscription to the ■stock of the new company, making a like claim; that he received the moneys from the new company as cashier of ■the bank in payment of the matured indebtedness of the 'bank (including the note in question), with other indebted.ness. Indeed, the sum of $11,000, part of the $33,000, •paid over to him, was paid by a credit to the defendant bank at another local bank, and that sum, mingled with ■other credits, was afterwards drawn out by the defendant bank, in the usual course of business. . Fuller held himself out as acting for and in the interest of the bank. He ■was under no check by the directorate. The transfer made :to the bank is an executed consideration, upon which complainant relied and Fuller acted. The bank actually received $11,000 in consequence of -these manipulations, and ibe only reason why it has not received the full measure ■of benefit is because its directors permitted Fuller to have full sway. Not only is the _ bank estopped from the .■attempted repudiation of the agreement of its cashier, but ■the note in question must be held to have been paid.

The decree of the court below is affirmed, with costs to ■complainant.

Long, Montgomery, and Hooker, JJ., • concurred. «Grant, J., did not sit.


source: Caselaw Access Project

author: Montgomery, J. Hooker, J.

license: Public Domain

text:
    Charles Smelling v. Eli Valley.

      Landlord and■ tenant — Parol lease — Statute of frauds — Part peiformanee — Tenancy at will — Summary proceedings.

    A tenant, whose term had expired, agreed with the purchaser of' the leased premises, in consideration of their continued occupancy by him for two years, to clear seven acres of the land during the spring of the year in which the agreement was made. The tenant, within the time specified, cleared a portion only of the seven acres, and, in summary proceedings by the purchaser to recover possession of the land by reason of such default, instituted on seven days’ notice, the tenant insisted that the contract, being verbal, was within the statute of frauds; that, complainant not being bound beyond one year, defendant could not be held to pay for two years! occupancy; and that he was therefore a tenant at will, and entitled to the-notice required to terminate such a tenancy. And it is held that, under the circumstances, the tenant could have enforced the agreement by a resort to equity;. that it does not lie with him to say that he is not bound to pay the consideration agreed upon as a condition to his continued occupancy, even though such payment included compensation for a term which he-might be compelled to resort to a court of equity to obtain, as-long as- the purchaser was ready to perform the agreement on his part.
    Error to Muskegon. (Dickerman, J.)
    Submitted on briefs October 10, 1894.
    Decided January 22, 1895.
    Summary proceedings to recover the possession of land.. Defendant brings error.
    Affirmed.
    The facts are stated in the opinions.

      Boyd & Sullivan, for appellant.

      Turner, Turner & Turner, for complainant.
   Montgomery, J.

This was a summary proceeding to-recover possession of land for non-payment of rent. Complainant had demanded the payment, as the jury must have found under the instructions of the court, and, on the defendant's refusal to make payment, had served the the seven-days notice to quit provided by How. Stat. § 8295. 'The defendant having failed to vacate within the seven days, this proceeding was instituted.

The evidence which the jury followed showed that complainant bought the land with defendant in possession; that defendant stated to complainant that he had no contract for further occupancy of the land from complainant's predecessor in title; that thereupon it was agreed by parol that defendant should clear up and fit for cultivation seven acres of land, during the spring of 1893, in time for spring crops, and that, in consideration of this, he should be privileged to occupy the land for two years. Defendant failed to make the clearing agreed upon, and this failure was followed by the demand and notice above referred to.

If the parties were bound by the terms of the agreement, there could be no doubt that the jury were justified in finding for complainant. Judd v. Fairs, 53 Mich. 518. But it is insisted that the contract was within the statute of frauds; that complainant could not be bound beyond one year; and that, if this was so, defendant could not be held to be bound to pay the consideration for two years' occupancy, and that, therefore, he must be held a tenant at will.

It is undoubtedly a general rule that an agreement void under the statute of frauds is void in all its parts, and cannot be considered for the purpose of assessing damages, .and is not good as fixing the consideration. Sutton v. Rowley, 44 Mich. 112; Raub v. Smith, 61 Id. 543; Wardell v. Williams, 62 Id. 50. But, in this case, defendant had entered upon the performance of his contract, and-was occupying the land under it, and had made a portion, of the clearing agreed upon. Under such circumstances,, he could have enforced the parol agreement by a resort to-equity. See Wood, Landl. & Ten. §§ 201, 202, and cases cited. See, also, Davis v. Strobridge, 44 Mich. 157. It. would be against the direct agreement of the parties to-substitute a tenancy, from year to year or a tenancy at-will for the one agreed upon between the parties. We-think it does not lie with the defendant to say that he is-not bound to pay the consideration which was agreed upon, as a condition to his continued occupancy, even though that payment included compensation for a term which he might be compelled to resort to a court of equity to obtain, as long as the complainant stood ready to perform the contract upon his part.

The judgment will be affirmed, with costs.

Long and Grant, JJ., concurred with Montgomery, J..

Hooker, J.

(dissenting). It is conceded that the defendant is in possession of premises under a parol lease-for two years. The parties agree that the consideration-for this lease was the defendant’s promise to clear two parcels of land. They disagree as to the time it was to be done; the complainant asserting that the land was to be° cleared during the spring following the making of the-lease, and the defendant claiming that it was to be done-during the term of two years. The work not being done-in accordance with complainant’s claim, he began summary proceedings after a notice to surrender the premises within seven days after service. The jury evidently believed the complainant.

If it be conceded that this was a good notice, under subdivision 2 of section 8295, How. Stat. (and it seems not to be questioned), it leaves this case to turn upon the dharacter of tbe defendant’s occupancy. If tbe defendant was a tenant at will, he was entitled to three months?' notice; if he can be said to have been a tenant for years,, a notice to quit or pay rent within seven days was all that-the law required.

It is contended that this contract was within the statute-of frauds, and therefore void for all purposes, under the*rule laid down in the cases of Sutton v. Rowley, 44 Mich. 112; Raub v. Smith, 61 Id. 543; Wardell v. Williams, 62 Id. 50; Chamberlain v. Dow, 10 Id. 319; Hall v. Soule, 11 Id. 494; Holland v. Hoyt, 14 Id. 238; Grimes v. Van Vechten, 20 Id. 410; Hillebrands v. Nibbelink, 40 Id. 646; Niles Water Works v. City of Niles, 59 Id. 311. An examination of these cases will disclose that most of them involved contracts in relation to personal property and labor. This rule does not apply to cases where lands have-been leased for a period of more than a year at an annual' rent, and possession has been taken, and rent paid. In> such case "the lessee is considered as tenant from year to-year. Doe v. Bell, 5 Term R. 471; People v. Rickert, 8 Cow. 226; Clayton v. Blakey, 8 Term R. 3; Reeder v. Sayre, 70 N. Y. 180; Laughran v. Smith, 75 Id. 205; Wood, Landl. & Ten. § 23, and note; Morrill v. Mackman, 24 Mich. 286; Schneider v. Lord, 62 Id. 141; Huntington v. Parkhurst, 87 Id. 44.

In this case it was stated that the rent was not payable, annually, but was all payable at once, according to the-complainant’s theory. The rule is that the agreement regulates the tenancy in every other respect ” than duration. People v. Rickert, 8 Cow. 231; 1 Cruise, Dig. 261; Schuyler v. Leggett, 2 Cow. 663. The case of People v. Rickert was similar to this one, being a letting for four years, for which the tenant was to inclose the demised premises in fence, by way of rent. 8 Cow. 227. It differed, however, from this case in one particular, viz... that the rent was fully paid, i. e., the work was all done, during the first year. This point does not seem to have been especially noticed, and there was perhaps no occasion lor it; for, if the tenant saw fit to pay the rent for the full term of four years, it may be plausibly said that the lessor could not complain. But where, as here, the rent has not been paid, and from its nature cannot be said to be apportionable within the fairly reasonable intent of the parties, the lease must fall as well in the matter of rent as duration. The theory upon which the law treats a parol lease for a longer period than one year as a term from year to year is that from the agreement a mutual understanding is inferable that the hiring should be for ■a year, and the rent annual. Laughran v. Smith, 75 N. Y. 209. Where the lease clearly negatives this last, as where it is payable monthly, the intent is allowed to govern, and the lease still stands as one for a year; but where the service, by way of rent, is indivisible, or not to be performed within a year, there is no room for such inference. Indeed, the contrary distinctly appears. So that "the lease itself is without the reservation of any valid rent. The demise, then, has nothing to support it under ihe lease.

But counsel suggest, in substance, that this lease can still be held a valid lease for a year, and that the law will imply a promise to pay the fair rental value annually. To so hold would be to say that the writing should bind one and not the other. We think it would be like any •other nudum factum. Perhaps the occupancy would entitle the lessor to remuneration, but it would be because ■of the occupancy, and not by reason of the agreement. 'The difficulty in implying such promise is the fact that the parties made another and inconsistent agreement. Dwight v. Cutler, 3 Mich. 566; Peters v. Gallagher, 37 Id. 407; Hough v. Comstock, 97 Id. 14, and cases cited.

There is, in my opinion, no escape from the conclnsion that the defendant was a tenant at will, and entitled to the statutory notice of three months, and that the judgment should be reversed. See Huy ser v. Chase, 13 Mich. •98.

McG-rath, C. J., concurred with Hooker, J.

       The deed is dated April 6, 1893.


author: McGrath, 0. J.

text:
    The Detroit & Birmingham Plank Road Company v. The Detroit Suburban Railway Company and The Detroit Citizens' Street Railway Company.

      License to railroad company — Limitation of time — Plank-road companies — Exclusive rights in highivays.

    1. A plank-road company, which, by the terms of its charter, had been put into the exclusive possession of a certain highway for the purposes of its incorporation, contracted in writing to allow the contractees to construct, maintain, and operate a single-track electric railway over a designated portion of said highway. The contract provided that the construction of the road should be commenced within one year, and completed within five years; otherwise the contract should be null and void. All of the road, except one-half mile, was completed within one year. After the expiration of the five years, the assignees of the contractees undertook to construct the remainder of the road, and were perpetually enjoined at the suit of the plank-road company from doing so. And it is held that there is no reason why the parties should not be bound by the express terms of the contract, and the decree is affirmed.
    -S. The charter of a plank-road company authorized its board of directors to enter upon and take possession of a certain portion of a public highway, and proceed to construct and maintain thereon a plank road. And it is held that the power of the Legislature to make the privilege exclusive is undoubted? citing Wright v. Nagle, 101 U. S. 791.
    8. The use of the highway by an electric railway for the transportation of passengers in cars, in consideration of tolls to be paid to the railway company, is a use inconsistent with the-rights and franchises of said plank-road company.
    Appeal from Wayne. (Donovan, J.)
    Argued October 5, 1894.
    Decided January 22, 1895.
    Bill to restrain the defendants from constructing an electric railway tfack upon a portion of Woodward avenue in the city of Detroit. Defendants appeal.
    Decree-affirmed.
    The facts are stated in the opinion.

      Frank B. Leland ((7. A. Kent, of counsel), for complainant.

      Russel & Campbell, for defendants.
   McGrath, 0. J.

On the 29th day of October, 1885, an. agreement was entered into between complainant, as party of the first part, and Frank E. Snow and William A. Jackson, parties of the second part, whereby said first party agreed to allow the parties of the second part to construct,, maintain, and operate a single-track electric railway from a point within the city of Detroit, northerly “ along and over the westerly ditch of the said plank-road company’s roadway, to the Six-Mile House;” and the parties of the second part agreed to pay for the privilege, “ on or before the-commencement of the construction of the railroad aforesaid, the sum of $3,000.” It was further stipulated that-“the construction of said railroad shall be commenced within one year, and completed within five years; otherwise this agreement shall be null and void.” On May 5,' 1886, the parties of the second part assigned to the Highland Park Railway Company, and on May 6, 1886, the said company paid to the party of the first part the $3,000. Within one year from the date of said agreement the said-electric railway was constructed to a point within one-half mile of the said Six-Mile House, and the road has since been operated to that point. In 1893 defendants undertook to extend the tracks further north, and complainant-files its bill to enjoin such extension. ‘

The parties to the contract expressly agreed that unless-the second parties should, within five years, construct and complete the railway, the contract should be null and void; in other words, that the license to enter, at least, upon so much of the road as had not been entered upon,, should be regarded as revoked. There is no reason why-the parties should not be bound by the express terms of the instrument. They have thereby agreed that time-shall be treated as essential. Defendants are now attempting to construct their railway upon this way. Complainant files a bill to enjoin them. They set up a license or permission granted by complainant, and complainant replies: that they are not within its terms. Equity is not invoked to declare a forfeiture, or to divest defendants of posses" sion, but to prevent an entry and the construction of the-railway. Defendants set up the license and claim a right of entry under it. The case does not differ in principle-from Gamble v. Gates, 92 Mich. 510, and Haskell v. Ayres, 32 Id. 93.

It is insisted, however, that, independent of the agreement, complainant has no such exclusive control of the-way as will support its bill. Complainant has a special, charter granted in 1848. Laws of 1848, Act No. 255. Section 4 of said act provides that—

“As soon as said company shall be duly organized, the-board of directors thereof are hereby authorized to enter upon and take possession of so much of the Detroit and Saginaw road, so called, as lies between the Grand Circus, in the said city of Detroit, and the village of Birmingham, and proceed to construct and maintain thereop a plank road.”

By the terms of its charter, complainant was put into possession of said highway, and it was to retain such possession for the purpose of the construction and operation •of its road. There is no doubt of the power of the Legislature in such case to make the privilege exclusive. Wright v. Nagle, 101 U. S. 791. Whatever rights either the public or abutting owners may have respecting such highway are subject to the operation by complainant of its plank road. Thé use of the way by an electric railway for the transportation of persons in cars, in consideration of tolls to be paid to the railway company, cannot be said to be a use consistent with the rights and franchises of the plank-road company.

; The decree of the. court below is affirmed, with costs to •complainant.

Long, Montgomery, and Hooker, JJ., concurred. ■Grant, J., did not sit.


author: Montgomery, J.

text:
    Patrick H. McWilliams, Guardian for Michael Doran, v. Saline Roy Doran.

      Incompetent persons — Contracts—Estoppel—Fraud.
    1. A contract for the purchase of land, made by a mentally incompetent person, is not necessarily void. If found to be for his interest, a court of equity will protect him. in the premises, and it will not lie with those from whom he made the "purchase to dispute his mental capacity.
    :2. If the parties from whom the purchase was made were not apprised of the purchaser’s mental incapacity, and the existing facts were not such as to render the contract of purchase-void, it by no means follows as a matter of course that he can avoid said contract.
    3. It was said by Mr. Justice Champlin, speaking for a majority of the Court, in Gates v. Cornett, 72 Mich. 435, that distinctions, have been recognized between cases of insanity and mere weakness of intellect or imbecility; that contracts made with insane-persons have pretty generally been held void, and those made with persons of weak intellect, or with imbeciles, voidable-merely; that the latter class of contracts can be enforced or repudiated in a court of equity upon equitable grounds; that where such contracts have been executed by the competent. party, and are executory upon the part of the imbecile, they can only be set aside at his instance by his doing equity.
    4. A widower, aged 65 years, and of weak mental capacity, was induced by a widow to take up his residence with her, and persuaded to sell a parcel of land owned by him, with a view of investing the proceeds in a larger parcel lying near her-residence. The widow contracted for the purchase of said land, and paid $500 on the contract. It was then agreed between him and the widow that the deed should be taken in their joint names, and that they should mortgage the land to. secure a loan with which to pay the remainder of the purchase price not paid from the money received for the widower’s. land and $100 agreed to be contributed by the widow. -The-widower gave the remainder of the money received for his land to the widow, and she paid the balance due on the contract, took the deed in her own name, and executed the mortgage to secure the loan. And it is held that when the widower-made the contract to purchase the land, and paid $500 upon it, he was vested with an interest in the land, and the widow could not, by fraudulently .appropriating the money intrusted to her, by making a payment upon the contract, and taking-the title in her own name, divest him of his interest in the-property; and that the case is a proper one for equitable relief.
    Appeal from Oakland. (Moore, J.)
    Submitted on briefs October 24, 1894.
    Decided January 22, 1895.
    Bill to compel defendant to convey a half interest in certain lands to complainant. Defendant appeals from order overruling demurrer.
    Affirmed.
    The facts are stated in th& opinion.

      Edioard 8. Qrece (James L. Pettibone, of counsel), for ■complainant.

      Walter Barlote, for defendant.
   Montgomery, J.

This is an appeal from an order of •the circuit court in chancery, overruling a demurrer to ■the bill of complaint.

The bill alleges that Michael Doran is a man 65 years ■of age, and has been for many years a man of weak mental capacity; that his mind has been in that condition to be easily wrought upon, and easily persuaded by others to ■do the bidding of others without regard for his own interests, he being a person who, without consideration or .adequate reason, could be and has been easily induced by others to part with his property; that the said Michael Doran has been so weak in mental faculties as not to be responsible for his acts, and, as the orator believes, has not, during the period mentioned, been of sufficient mental capacity to transact business affairs. The bill further .alleges that he was the owner of 20 acres of land in the ■county of Wayne, and that defendant, who was a widow, living upon a farm in Oakland county, induced him to take up his residence with her, and by various arts, particularly set out in the bill, persuaded him to sell his 20 tacres of land in Wayne county, with a view of investing the proceeds in a parcel of 50 acres of land near to defendant's residence; that he did sell his land in Wayne •county for $1,700; that he then himself negotiated a purchase, and made a contract with the owners of the 50-■acre parcel to pnrcbase the 50 acres for the price of $3,500, and paid $500 on the contract; that it was then agreed between himself and defendant that defendant should contribute $100, that a joint deed should be taken in the names of the two, and a mortgage given to third parties to secure a loan of $1,700 upon the land; that when the time came for making payment upon the contract and executing the mortgage, Mr. Doran had intended to go to Pontiac to attend to the business, in company with defendant, but that defendant refused to allow him to accompany her, took the money, paid up the contract, •and took a deed in her own name, executing the mortgage in her own name to the lenders in the sum of $1,700. The bill further alleges that the .parties were subsequently married, but that defendant has refused to ■execute a deed of the one-half interest to Doran; and this bill is filed, asking that defendant be compelled to execute ■a deed of the one-half interest to complainant's ward, and for such other relief as may be agreeable to equity. Dpon ■the filing of the bill, an injunction issued, restraining defendant from disposing of the property.

Numerous reasons are assigned why the bill is said to ’be demurrable. It is alleged that complainant has an .■adequate remedy at law to recover from defendant the money intrusted to her. We think the case is one which ■does not require elaborate discussion. It is very clear ■that when Michael Doran made the contract to purchase the land, and paid $500 upon it, he was vested with an interest in the land, and the defendant could not, by fraudulently appropriating the moneys intrusted to her, by making a payment upon the land, and taking the title in her own name, divest him of his interest in this property.

But it is said that the bill alleges that Michael Doran was mentally incompetent to make a contract, and, therefore, that his contract to purchase the land was void. This is not necessarily so. Certainly, if the contract of purchase should be found to be for his interest, a court •of equity would protect him. It would not lie with those of whom he made the purchase to dispute his mental capacity, and it is very evident that the point is not now raised by defendant through any solicitude for the best interests of Mr. Doran.

In Gates v. Cornett, 72 Mich., at page 435, a distinction was made which evidently has escaped the attention of counsel. Mr. Justice Oiiamplin, speaking for a majority of the Court, said:

“Distinctions have been recognized between cases of insanity and mere weakness of intellect or imbecility. Contracts made with insane persons have pretty generally been held void, and J;he latter voidable merely. Gates" case falls-within the last category. His contracts were not absolutely void. To so hold would be to unsettle titles, and overthrow a long series of business transactions in which complainant was engaged during eight years, without securing any benefit to Gates, and to the detriment of a great many persons who dealt with him in the utmost good faith, and without cheating him. Belonging, as his contracts do, to that class which are termed ‘ voidable," they can be enforced' or repudiated in a court of equity upon equitable grounds. Where the contracts have been executed by one party, and are executory upon the part of the imbecile, they can only be set aside at his instance by his doing equity. The maxim applies here, that he who asks equity must do equity.""-

It is not averred in the bill that the parties with whom Doran contracted for the purchase of the land were apprised of his mental incapacity, or that the facts existed which would render void the contract of purchase. This being so, it by no means follows as a matter of course that he-could have avoided his contract with the vendors. Much less does it lie with defendant to assert the nullity of the-contract as a shield of defense against her own fraud. The-case made by the bill is a meritorioirs one.

The order of the' court will be affirmed, with costs, and. the cause remanded.

The other Justices concurred.


author: McGrath, O. J.

text:
    The People v. August Fuhrmann, Henry Jacobs, and Charles Voegler.

      Criminal law — Change of venue — Jury lists — Correction—Ordering return from city — Separate trials — Disqualification of prosecuting attorney — Homicide—Instructions to jury.

    1. The circuit courts have the right, upon cause shown, to changer the venue in criminal cases on the application of the people; citing People v. Peterson, 93 Mich. 27.
    2. Where a challenge to the array is interposed on the ground that an excessive number of jurors has been returned from certain townships, it is not error for the court to order the clerk to reduce the excessive lists by striking therefrom all names below the number appearing thereon to which said townships are respectively entitled; citing Hewitt v. Circuit Judge, 71 Mich. 287.
    3. The charter of the city of Alpena (Act No. 249, Laws of 1871) provides for the election of a comptroller, who is ex officio assessor of the city; one supervisor in each ward, who is vested with all the powers of supervisors in townships, except as in the charter otherwise provided; and two aldermen in each ward. The comptroller, supervisors, and city attorney constitute a board of review. The charter contains no special provision as to the return of lists of persons to serve as jurors. On sustaining a challenge to the array on the ground, among others, that no persons were legally listed and returned from said city to serve as jurors, the circuit court directed the supervisors and aldermen of the several wards fc> return such lists. And it is held that under How. Stat. § 7554, which provides that “the supervisor and township clerk of each township, and the supervisor or assessors, as the case may be, and aldermen of each ward or assessment district in any city, shall, at the time appointed by law for the review of the assessment roll for each year, make a list of persons to serve as petit jurors * * * for the ensuing year,” the proper officers were designated to return said lists; the Court disr tinguishing such a case from Heivitt v. Circuit Judge, 71 Mich. 287, where it was held that the provision of the charter of the city of East Saginaw creating the office of assessor, and
      requiring such officer to make and return lists of persons to serve as jurors, superseded the general statute in that regard.
    4. The order of the court recited that, by reason of the neglect of the supervisors and aldermen of the several wards of the city of Alpena, no names of persons qualified to serve as jurors had been legally returned from said city; that there was a large number of civil and criminal cases for trial by jury; and directed that said officers forthwith make return of such lists. And it is held that, said officers not having, prior to that time, returned the proper lists, the duty to do so was a continuing one, and it was immaterial whether they made the return voluntarily, upon request, or upon the order of the court.
    5. In the absence of a demand for a separate trial by one of several respondents jointly informed against for a felony, it is within the discretion of the court under How. Stat. § 9573, to direct a joint or several trial.

    6. Prior to the transfer of a criminal case to another county for trial, the prosecuting attorney of said county had been employed by the board of supervisors of the county in which the prosecution was instituted, at an agreed compensation, to assist in the trial of the case. Objection was made to the prosecuting attorney participating in the trial in his own county. It did not appear whether or not he was to receive compensation for such proposed service. And it is held that the fact of his former employment did not disqualify him from participating in said trial; that 3 How. Stat. § 557> which provides that no prosecuting attorney shall receive any fee or reward from or on behalf of any prosecutor or other individual for services in any prosecution or business to which it shall be his official duty to attend, is aimed at employment by or receipt of fee or reward from individuals other than the public authorities.
    7. Under the charge, as set forth in the. opinion, the jury could not have been misled upon the question as to the burden of proof.
    8. Under the evidence, the court was justified in instructing the jury that, if the respondents were guilty at all, they were guilty of murder in the first degree; citing People v. Rephe, 103 Mich. 459.
    Error to Alpena. (Kelley, J.)
    Argued October 25, 1894.
    Decided January 22, 1895.
    Respondents were convicted of murder in tbe first degree, .and sentenced to imprisonment in the State prison for life.
    Judgment affirmed.
    The facts are stated in the ■opinion.

      J. D. Turnbull, for respondents.

      A. A. Ellis, Attorney General, and James McNamara, Prosecuting Attorney, for the people.

       How. Stat. § 9573, provides that, “when two or more defendants shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately, and in other cases defendants jointly indicted shall be tried separately or jointly, in the discretion of the court.”

   McGrath, O. J.

Respondents were convicted of murder. 'The venue was changed at the instance of the people from Presque Isle county to Alpena county, and error is assigned ■upon the order of removal. The point is ruled by People v. Peterson, 93 Mich. 27.

Upon respondents5 challenge to the array of jurors upon the ground that an excessive number of jurors had been returned from certain townships, and’ that no jurors had been legally returned from the city of Alpena, the court -ordered the clerk to reduce the lists by striking off all •names below the number appearing thereon to which each township was entitled, directed the supervisors and aider-men of thS several wards of the city of Alpena to forthwith make return of a list of persons qualified to serve as jurors, and afterwards ordered a drawing from the lists so returned. Respondents then made a second challenge to the array, alleging:

1. That the court had no authority to direct the striking off of the said names from the lists returned from said townships, etc.

2. That the court had no power to order the supervisors .and aldermen to make the selection.

3. That the supervisors and aldermen had no power to> make said selection.

4. That the court had no authority to order the drawing and summoning of said jury of 24 men.

5. That the names so selected and returned from the city of Alpena were selected and returned for the very purpose of the trial of this case, and under improper influences and circumstances, etc.

As to the first objection, the course pursued was that suggested in Hewitt v. Circuit Judge, 71 Mich. 287, 296.

As to the fifth objection, the order of the court, and what transpired at the time, expressly negative the allegations made.

As to the other objections, the statute provides that the-supervisor or assessors, as the case may be, and aldermen of each ward or assessment district in any city, shall make-a list, etc. How. Stat. § 7554. The city of Alpena elects-a comptroller, who is its assessing officer, and each ward elects two aldermen and one supervisor. The latter exercises the powers of supervisors in townships, except as otherwise provided in the act. It is urged that under the-charter of the city of Alpena neither the supervisors nor aldermen are assessors, and that aldermen are not members of the board of review; -that the comptroller of the-city is the assessing officer, and that the statute (section 7554) contemplates that an assessing officer should assist in making the list. Section 7555 would seem, to indicate that the lists are to be made by officers having some-knowledge of the persons whose names are listed. The supervisor or assessor and aldermen of each ward are named, the contemplation being that the listing shall be-done by local officers. In Hewitt v. Circuit Judge, supra, the charter of the city of East Saginaw created the office-of assessor, and required that officer to make and return .jury lists, and the Court held that there was nothing compulsory upon the Legislature as to how or in what, manner lawful jurors’ names should be returned to the box, -and that the general law was of mo liigher or greater -authority than any other enactment upon that subject. We think that the proper officers under the statute were ■designated by the court to return the lists.

There is no force in the objection that the court had no power to order the return of the lists. The statute provides that whenever, for any cause, jurors shall not have been drawn and summoned to attend any circuit court, .such court may, in its discretion, order a sufficient number to be drawn and summoned, and that the court may direct from which townships or districts such jurors shall be •drawn. How. Stat. § 7578. It was held in Thomas v. People, 39 Mich. 309, that the time for returning the lists was of no importance to litigants. Nor is the manner in which the lists are obtained by the clerk important, if procured from the proper source and through the proper channels. The order of the court recited that, by reason of the neglect of the supervisors and aldermen of the several wards of the city of Alpena, no names of persons qualified to serve as jurors had been legally returned from that city, and, “there being a large number of civil and •criminal cases for trial by jury, it is ordered,” etc. Not having, prior to that time, returned the proper lists, the ■duty was a continuing one, and it was immaterial whether they made the return voluntarily, upon request, or upon the order of the court.

The next contention is that the court erred in directing separate trials. The matter, under the statute, was in the ■discretion of the trial court. How. Stat. § 9573; Stroh v. Hinchman, 37 Mich. 490.

Objection is made to the participation of the Attorney General and Mr. James McNamara in the prosecution. The Attorney General appeared at the request of the Governor,, under the statute (How. Stat. § 286). Mr. McNamara was-at the time the prosecuting attorney of Alpena county. Prior to the removal of the cause he had been appointed by the circuit court of Presque Isle county to assist in the-prosecution, and the board of supervisors of that county had agreed to pay him a stipulated per diem for such service. After the removal to Alpena, it does not appear whether or not he was to receive any compensation. There is no presumption that he was. The fact of the former employment by Presque Isle county would not disqualify him. The statute is aimed at employment by or receipt of fee or reward from individuals other than the public authorities.

Exception is taken to the court's instruction that—

“From the evidence in this case, if these defendants are-guilty at all, they must be guilty of murder in the first-degree. There is no evidence in this case upon which a verdict of murder in the second degree, or any lesser grade of this crime, could rest.”

That question has been fully discussed in People v. Repke, 103 Mich. 459.

Error is assigned upon the following instruction:

“Now, gentlemen, the respondents here bring forward the defense which is termed in the law an ‘alibi.’ It means that when a pei’son is charged with a crime he comes forward and claims and attempts to establish the fact that he was somewhere else at the time of the commission of the crime, some other place than that where the crime was-committed; that is what ‘alibi’ means; and that is one of the defenses that these parties here have brought forward and insist upon. I say to you, gentlemen, it is a perfectly legal and legitimate defense, and there is nothing discreditable, or there is nothing in the fact that they attempt to-prove this defense of an alibi that should militate against them. If it is established, it is a complete defense; and they have attempted in their defense to establish the fact-that they were not present on the night in question, at the time and place of the killing of Albert Molitor. And in truth it would require no illustration to satisfy your minds that, if they were not there, if they were miles away, without knowledge of its commission, they would not be guilty.”

There is no doubt but that, if this charge stood alone, or was so separated from the other portions of the charge as to impress the jury with the idea that this defense was to be treated and considered separately, that the burden was upon the respondents to establish the alibi, and, if not so established to their satisfaction, it could not be considered, it would be erroneous. Before giving the instruction complained of, the court, however, had repeatedly instructed the jury as to the burden of proof and the presumption of innocence; that the burden was upon the people; that the-people “should establish every essential requisite by evidence which removes from your mind every reasonable* doubt; ” that—

“ Parties charged with crime, and brought to the bar of this court to be tried, are not required to vindicate or establish their innocence. They have a right to stand mute. Under the law of the land they have a right to say to the people, ‘You must establish our guilty and that is the law in this case. The people assume the burden of establishing the guilt of these defendants to your satisfaction beyond a reasonable doubt. * * *

“ The defendants in this case, standing here, charged as they are by the people with the commission of this crime, are entitled to what the law defines to be the presumption of innocence. These defendants are entitled to that presumption. They start out in this case surrounded with that presumption. It is one of the safeguards that the-law has thrown around accused persons; and the burden of proof is on the people, or the State, to show the guilt, of the accused beyond a reasonable doubt. I instruct you, in this case, that the law presumes these defendants to be innocent of the crime charged until that presumption is overcome by evidence which satisfies and convinces your minds of their guilt, or of the guilt of one or more of them, beyond a reasonable doubt. In other words, this presumption accompanies these defendants th/ough and at. every step in this case, and applies to every essential requisite of the crime of murder. And this presumption of innocence must be so absolutely and conclusively overcome by the people’s evidence that there remains in your minds no reasonable doubt of their guilt. You must be able to say in your careful deliberations, and in the weighing of the evidence, that there is no rational theory on which the evidence can be reconciled but that of the defendants’ guilt.”

After giving the instruction objected to, the court said to the jury:

“As I have said to you before, gentlemen, you will not be warranted in convicting these defendants unless the evidence in this case convinces your minds of their guilt beyond a .reasonable doubt, as I have defined it.”

Again, at the close of the charge, the court said:

“ If they are guilty of this crime under the evidence in this case, and you honestly believe it from the evidence to that extent that there is no reasonable doubt remaining in your minds, you can only answer and fulfill the high position that you now occupy by declaring your verdict in accordance with your belief. * * * It is your ■duty, however, should the evidence in this case fail to ■convince your minds to the extent that I have instructed you, should it fail to satisfy your minds beyond a reasonable doubt; it is your duty — no matter what may be the impressions or the desires of anybody — it is your duty to declare their innocence. They are not to vindicate or prove Their innocence. The people must establish it, and to that degree lohich I have named; and if they have not you ought <■equally as fearlessly say to these defendants that they are mot guilty.”

The jury could not have been misled, taking the charge as a whole.

Some questions are raised as to the admissibility of testimony, upon examination of which we find no prejudicial .error.

The judgment is affirmed.

'The other Justices concurred.

       Act No. 249, Laws of 1871.


text:
    The People v. August Grossman.

      Criminal law — Homicide.
    'This case is ruled by People v. Fuhrmann, ante, 593.
    Error to Alpena. (Kelley, J.)
    Argued October 25, 1894.
    Decided January 22, 1895.
    Despondent was convicted of murder in tbe first degree, .and sentenced to imprisonment in the State prison for life.
    Judgment affirmed.
    The facts are stated in People ■v. Fuhrmann, ante, 593.

      J. D. Turnbull, for respondent.

      A. A. Ellis, Attorney General, and James McNamara, Prosecuting Attorney, for the people.
   McGrath, O. J.

This case is ruled by People v. Fuhrmann, ante, 593. Despondent here was charged jointly with the parties in that case, but had a separate trial. 'The questions raised are the same.

The judgment is affirmed.

The other Justices concurred.


text:
    The Manistee Manufacturing Company v. Mason G. Cogswell and Margaret Cogswell.

      Ejectment — Boundaries—Acquiescence—Estoppel—Survey—Evidence.
    1. In ejectment for a strip of land adjoining that of the defendant, it was claimed by him that the line between his land and that of the plaintiff had become established by the verbal agreement and acquiescence of the plaintiff, so that the strip-of land in dispute had become a part of defendant’s land, And it is held that the defendant had a right to make this defense in said suit.
    2. Mere non-interference by the plaintiff with the defendant’s-occupancy of the disputed strip of land will not constitute a, defense until such occupancy has ripened into a title by adverse possession, unless there has been some agreement, express or implied, fixing the disputed line so as to entitle the defendant to such occupancy; but an acquiescence for less than the statutory period, under circumstances which imply an assent, and which has been followed by a change in the condition of the parties, made on the strength of such acquiescence, is sufficient; citing Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Id. 332; Cronin v. Core, 38 Id. 381;. Bird v. Starh, 66 Id. 654; Jones v. Pashby, 67 Id. 459.
    3. Where in such a case there is room under the testimony for-the jury to say that the assent of plaintiff to the location of the line as claimed by the defendant depended upon defendant’s establishing such location by a survey, and that, when the plaintiff saw the defendant erecting a building up to the line as claimed by him, it was upon the understanding that the defendant had located said line by an actual survey of the land, the question whether or not there has been such an acquiescence as to estop the plaintiff is for the jury.
    4. In an action of ejectment involving a disputed boundary line,. a surveyor, who had made a survey of the property, testified that he had taken pains to establish the correctness of a stake designating a section corner, used by him as a starting point;, that he had used it for many years as a surveyor; that he knew it to be approximately the location of the original government section corner; that he had used said corner as thus located so frequently with reference to other surveys that he was perfectly sure of its correctness; and that, if it were not correct, the street to the north and the street to the west and the abutting lots would all be thrown out of line. And it is held that the witness was shown by this testimony to be sufficiently familiar with the location of the stake to justify the inference by the jury that he had correctly located the starting point of his survey.
    Error to Manistee. (Judkins, J.)
    Argued October 26, 1894.
    Decided January 22, 1895.
    Ejectment. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Dovel & Smith, for appellant.

      Smurthwaite é Fowler, for defendants.
   Montgomery, J.

This is an action of ejectment to recover a strip of land 60J feet long, and 16 inches wide at one end and nine inches wide at the other. The plaintiff’s testimony tended to show title to the strip of land in question. The defendants showed ownership of the piece of land adjoining on the north, and claimed that the line between the two properties had become established so that the strip of land in question became parcel of the lot owned by defendants. They also adduced some testimony tending to show an adverse occupancy for the statutory period; but the testimony on this point was not conclusive, and, as the circuit judge directed a verdict for the defendants on the ground that there had been a boundary line established between the parties by an agreement and acquiescence, the question of adverse possession need not be considered at length.

The testimony shows that, some 13 years or more prior to the commencement of suit, a fence was built as a boundary of defendants’ lot, by their predecessor in title. The fence remained until 1883, when it, together with the buildings on the premises, burned down. In 1884 •defendant Mason G-. Cogswell bought, and bnilt a building inside the former fence line. Plaintiff's manager (Mr. Long) testified as follows:

Remember when defendant put np his building, in 1883. Remember seeing him build his building. I have no recollections of talking with him about the location of the line. I supposed he expected to build on his own ground. Didn't know anything to the contrary, and did not stop to see or inquire. He told me he was going to have it surveyed. I asked him if he was getting his building on the line, and he said, eI am going to have a survey of it;' and I supposed he did. Don't remember of seeing the Briley building posts when defendant commenced building. We built a one-story building, about 30 feet long, for a storeroom for moldings and sash, soon after the fire. We didn't know whether it was on the line or not. We built it as close to defendant's building as we could. We didn't have any survey made when we built it. We afterwards sold that building to defendant, and put up a brick building in 1889, as close to defendant's building as we could get. We had the line surveyed, and called Mr. Cogswell's attention to it, and he wanted to buy the land. I told him he would have to move his building. It was when we were getting ready to put in our foundation. He wanted to buy it, provided he could buy it on.the installment plan. I consulted some of the board, and they thought we had better not sell it. He did not claim at that time that the company did not own the strip of land. He did not say to me that he thought it would be difficult to find the line, and I did not say to him that I thought so too, because we had had it surveyed, and I supposed the survey correct.”

Defendant testified:

“I erected buildings upon this property. Began to ■‘build in ■ May, 1884. I located my building by measuring 50 feet from Mr. Jarvis' corner of the house down towards .the mill property. Made further efforts to locate the building by the old stakes that were there, and the old 'foundation and sills.”

He was asked:

Did you see Mr. Long about that time?

“A. He was standing by me right along from the time I started until I got through, backward and forward, and passed there every day.

'' Q. When did you first have any conversation with Mr. Long about that line?

“A. Well, after he put the brick building up, of course, just before he had the brick building put up, he-had a survey, and he then remarked that he thought I was on his ground, and I said: 'Well, I don't know; I don't think I am,' I said. He said: 'I guess we shall have to tax you $100 for that;' and I said: ' I want to-know what I am going to pay for if I am going to pay $100. I will have a survey, and know what I am getting for my $100."'

The question presented is whether the testimony conclusively shows that the parties intended that the line as-established by defendants should be treated as the true lino. We think not. If the jury had found, as a matter of' fact, that the plaintiff intended to assent to the line fixed by defendants' building, there may be enough in the testimony to support such a finding; but this is far from saying that the fact conclusively appears. We have no-doubt that defendants have a right to make this defense-in a suit at law. Hayes v. Livingston, 34 Mich. 384; Cronin v. Gore, 38 Id. 381. But mere non-interference with the defendants' occupancy is not enough to constitute-a defense until such occupancy has ripened into a title by-adverse possession, unless there has been some agreement,, express or implied, fixing the line, in which case acquiescence for a less period than 15 years is sufficient; and an acquiescence under circumstances which imply an assent,, and which has been followed by a change in the condition of the parties, made on the strength of such acquiescence, is sufficient. Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Id. 332; Cronin v. Gore, supra; Bird v. Stark, 66 Mich. 654; Jones v. Pashby, 67 Id. 459. As was said in Bird v. Stark:

“It is undoubtedly true, under our decisions, that, to make an arrangement less than 15 years old binding, it must have been made with the understanding that it should be so regarded.”

In the present case there was room for the jury to say that the assent of plaintiff to the line was conditional, and depended upon defendants' establishing the location by a survey; and that, when it saw the building erected, it was upon the understanding that defendants had located the line by an actual survey of the land. We think the question of whether there w'as such an acquiescence as to estop plaintiff should have been submitted to the jury.

We have not overlooked the defendants' contention that there was no proof offered by the plaintiff to show the true line, the claim being that the surveyor failed to fix definitely the starting point. But we think the testimony of the surveyor Vincent was sufficient to justify the consideration of his testimony by the jury. He testified that he had taken pains to establish the correctness of the stake designating the section corner; that he had used it for many years as a surveyor; that he knew it to be approximately the location of the original government section corner;, and that he had used the corner so frequently with reference to other surveys that he was perfectly sure of its correctness, and, if it were not correct, the street to the north and the street to the west and the lots would all be thrown out of line. We think this testimony showed sufficient familiarity with the location of the stake to justify the inference by the jury that he had correctly located the starting point.

For the error pointed out, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


text:
    Eugene Robinson v. The Lake Shore & Michigan Southern Railway Company.

      Pleading — Amendment of declaration — Evidence—Breach, of contract — Damages.
    1. In a suit by a contractor against a railroad company to recover damages for the failure of the defendant to furnish the number of cars agreed to be furnished per day to be loaded with gravel, the declaration averred that the defendant agreed to furnish 100 cars per day for that purpose, and plaintiff’s evidence showed that the cars were to be flat cars. A motion to strike out the testimony relating to flat cars, as not covered by the declaration, was denied. And it is held that, if the declaration was technically faulty in that regard, it would, under the circumstances of the case, the testimony having been received without objection, have been the duty of the court, upon the question being raised, to permit an amendment of the declaration so as to cover the proof, and said amendment will be treated as having been made; citing Smith v. Pinney, 86 Mich. 484; Enright v. Insurance Co., 91 Id. 238; Warder, etc., Co. v. Gibbs, 92 Id. 29.
    -2. The plaintiff testified that at the time the contract, which was verbal, was agreed upon, he made a memorandum of its contents, and that no reference was made in said memorandum to flat cars. The plaintiff proved the alleged contract by the uncontradicted testimony of two witnesses. And it is held that the defendant was not injured by the reference to the memorandum.
    -3. A railroad company contracted for the loading with gravel of 100 cars per day, which number of cars it agreed to furnish for that purpose. In a suit by the contractor to recover damages claimed to have been sustained by reason of the failure of the railroad company to furnish the agreed number of cars per day, the defendant sought to recoup damages sustained on .account of the failure of the plaintiff to keep the excavator used in loading the gravel in repair, thereby obliging the cars ■and employés of the defendant to remain idle. And it is held that the request of the defendant for an instruction that, if the plaintiff failed to perform the alleged contract upon his part, he could not recover any damages from the defendant, whether it performed its part of the contract or not, was properly refused; citing McGregor v. Estate of Ross, 96 Mich.. 103.
    Error to Wayne. (Donovan, J.)
    Argued October 30 and 31, 1894.
    Decided January 22, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The-facts are stated in the opinion.

      Wells, Angelí, Boynton é McMillan, for appellants.

      Bdwin F. Oonely and Orla B. Taylor, for plaintiff.
   Montgomery, J.

This is an action to recover damages-for an alleged breach of contract. Plaintiff was the owner of an excavator or shovel operated by steam power, and the evidence in his behalf shows that defendant contracted, to pay him eight cents per cubic yard for as much gravel as he should load aboard cars to be furnished by defendant during the season of 1887, and that defendant agreed to furnish 100 cars per day to be loaded. The testimony shows that plaintiff has received pay for loading the dirt actually hauled, so that the only questions involved are-those relating to the alleged damages which plaintiff claims-to have sustained by reason of the non-performance of its-contract by defendant to furnish 100 cars per day, and the questions arising under defendant’s notice of recoupment, it having been set out by such pleading that defendant was delayed -in moving the gravel trains by reason of plaintiff’s default in not maintaining the excavator in repair, and that on account thereof the locomotives, cars,, and employés of defendant were obliged to, and did in fact, remain idle, and suffer various interruptions, in all causing damages to a considerable sum.

1. The plaintiff’s declaration alleged defendant’s undertaking to be to furnish 100 cars per day. The proof sustained this, and also showed that it was agreed that-it should furnish 100 or more flat cars. After these proofs had been received without objection, the defendant moved to strike out the testimony relating to flat cars, on the ground that it was not covered by the declaration. This motion was denied, on the ground that it came too late, and also on the ground that the declaration was sufficient to admit of proof of the kind of cars usually employed in that kind of business. If we treat the declaration as technically faulty, it would, under the circumstances of this case, have clearly been the duty of the court to permit an amendment, upon this question being raised after the testimony had been received without objection. Under these circumstances, we think no injustice is done by treating the declaration as amended when the point arises on review. Smith v. Pinney, 86 Mich. 484; Enright v. Insurance Co., 91 Id. 238; Warder, etc., Co. v. Gibbs, 92 Id. 29.

2. When the plaintiff was- on the stand, he testified that the contract was 'made between him and one Benjamin Bees, the manager of the southern division of defendant’s road, by parol, and that, at the time, he (plaintiff) made a memorandum on the back of a telegram, which he had received that day from Bees, of the terms of the contract. Defendant moved to strike out this testimony, which motion was denied. Defendant also complains of the fact that the witness was permitted to state that the reference to-flat cars was not contained in the,memorandum. We find upon an examination of the record that the plaintiff proved the alleged contract by parol, by two witnesses, whose testimony is wholly uncontradicted; and it is impossible to conceive how the defendant could have been injured by the reference to the memorandum. Moreover, the defendant first inquired as to the contents of the memorandum.

3. The defendant asked the court to charge the jury that—

. tfIf the plaintiff failed to perform the alleged contract upon his part, he cannot recover any damages from the defendant, whether the defendant performed its part of the contract or not.”

Defendant also claims that the verdict of the jury shows that the jury must have found that the plaintiff failed to perform.his contract, as it is claimed to be evident from-the amount of the verdict that an allowance was made to the defendant for delays occasioned by the excavator being out of repaii’, and that it follows,, as _ matter of law, that the plaintiff was not entitled to recover upon the contract at all. Defendant's counsel state the general rule correctly, . — that one suing upon a contract must show performance on his part, or a readiness to perform, before he is entitled to recover. But we do not understand the rule to be so unyielding as is contended' for by defendant's counsel. In other words, we do not think that every breach of contract by a party to it, which is not availed of by the other party as a reason for refusal to perform on his part, so far annuls the contract that the defaulting party can in the future assert no rights under it. In the present case, if it should have appeared that, during the first week' of the services attempted by this steam excavator, it was, by the fault of the plaintiff, out of repair, so that the defendant suffered damages by reason of the delay, which injury could have been compensated for in damages, does it follow that, after both parties have gone on and performed the •contract for six months thereafter, defendant is relieved from its engagement in respect to the contract? We think not. This subject had some attention in the case of McGregor v. Estate of Ross, 96 Mich. 103, in which an instruction no broader than that asked in the present case was given to the jury, and was held erroneous as applied to the facts of that case. It was said in that case:

“When the deceased committed a breach, the plaintiff was privileged to adopt either one of two courses: He •could abandon further work under the contract altogether, and sue to recover the price of work already performed, and whatever damages he had already sustained because of being prevented from completing the contract; or he could continue, under the contract, to do so much of the work as he was permitted to do, and recover damages for the interruption. But in case he did so there is no reason why he should not be bound by the terms of the contract, so far as he did attempt its performance, and responsible for any breach of condition not dependent upon the neglected performance of the other.”

See, also, 2 Pars. Cont. 678, and Franklin v. Miller, 4 Adol. & E. 599.

4. Error is assigned upon the refusal of the court to permit evidence of the condition of the shovel in 1888. We think there was no error in this. It is said that the declaration alleged the contract to have extended to January 11, 1888. The record shows that both parties agreed that the recovery should be limited to what occurred prior to the 2d of December, 1887, when the machine was shipped from Pleasant Lake to Corunna, and the plaintiff entered upon a new contract with the defendant.

We think it is unnecessary to discuss the other points ¡raised, further than to say that we think the charge was sufficiently favorable to defendant, and that no error was committed to its prejudice.

The judgment will be affirmed, with costs.

Lons, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


author: McGrath, G. J. Hooker, J.

text:
    The City of Detroit et al. v. Adolphus A. Ellis, Attorney General.

      Bes judicata — Municipal corporations — Quo warranto.

    A suit instituted by a city against a street-railway company to-enjoin it from operating its railway after a given date in certain streets in the city, on the ground that an ordinance extending to another company, to whose franchises the defendant had succeeded, the right so to operate its railway was void after said date, was removed to the federal courts, where a. decision was rendered in favor of the defendant. And it is held that said decision is res judicata of the question in issue in said suit, on an application by the city and certain of its citizens for mandamus to compel the Attorney General to file-an information in the nature of quo warranto to inquire by what right said defendant railway company maintains and uses its tracks in said streets after the date named.

      Mandamus.

    Argued November 26, 1894.
    Order to show cause denied January 22, 1895.
    Relators applied for mandamus to compel the Attorney General to file an information in the nature of quo warranto to inquire by what right a certain street-railway company claims to and does exercise, in certain streets in-the city of Detroit, the franchise of maintaining and using street-railway tracks in said streets. The facts are stated in the majority opinion.

      C. A. Kent and Benton Hanchett, for relators.

      F. A. Balcer, Russel & Campbell, Ashley Pond, Henry M. Duffield, and Sidney T. Miller, for respondent.

       On the merits of the question sought to be raised by the application for mandamus, see 26 L. R. A. 667.

   McGrath, G. J.

This is an application for an order do show cause why the Attorney General should not file an information in the nature of a quo warranto to inquire by what right the Detroit Citizens’ Street-Bailway Company claims to exercise, and does exercise, in certain streets •of the city of Detroit, the right of maintaining and using street-railway tracks in said streets.

Petitioners allege that in November, 1862, the common council of the city of Detroit passed an ordinance whereby •consent was given to one Bushnell and his associates, who were about to organize as a corporation, to lay street railway tracks and to operate a street-railway system in and ■upon certain streets in the city of Detroit; that “ afterwards, •on the 9th day of May, 1863, said.Bushnell and his associates organized into a corporation, which, by its articles, was to continue for 30 years, under the name of .the Detroit City Bailway, which entered into possession of said streets, and built and maintained street-car lines, and exercised all the usual franchises connected therewith; ” that “ November 14, 1879, another ordinance was made, adding other provisions to the agreement between the street-railway company and the city, and providing that "the ‘powers and privileges conferred and obligations imposed on the Detroit City Bailway Company by the ordinance passed November 24, 1862, and the amendments thereto, are hereby extended and limited to 30 years from this date;”’ that in 1891 the Detroit Citizens’ StreetBailway Company was organized for a period of 30 years, and, soon after its organization, received a conveyance of all the property rights and franchises of said Detroit City Bailway Company, and under such conveyance the Detroit Citizens’ Street-Bail way Company claims the right to operate, and is now using, all the franchises in said streets; “that the value of the franchises and rights in said streets occupied and claimed by said Citizens’ Street-Bailway •Company is very great, and that its claims are a great obstacle, as your petitioners are informed and believe, and therefore aver, to the making of the best terms which the city can make for the public accommodation by the establishment and maintenance of improved street-car lines on said streets, and are therefore injurious to the city and all residents; that, if the claims of said Citizens’ Company are declared void, arrangements can readily be made with other street-car companies by which the car service can he greatly improved, and either the fares much reduced, or the amount paid to the city be greatly increased, or both; that the said ordinance of 1879, attempting to-extend the franchises and rights of said Detroit City Railway 30 years from November 14, 1879, was void after May 9, 1893, because the life of said grantee expired at that tipie.”

In 1892 the city of Detroit filed its bill in the circuit court for the county of Wayne, in chancery, against the-Detroit City Railway, the Detroit Citizens’ Street-Railway Company, and others, setting forth at length the matters which are substantially set forth in the petition herein, and praying that defendants might be enjoined from operating street railways in said streets after the 9th day of May, 1893. The said cause was afterwards removed to the circuit court of the United States for the Eastern District of Michigan, in equity, where a decree was finally entered in accordance with the prayer of the bill. City of Detroit v. Detroit City Ry. Co., 60 Fed. Rep. 161. Defendants took the case to the court of appeals, where it was heard upon its merits; and in October, 1894, a decree was entered reversing the decree of the circuit court, and dismissing the bill. 64 Fed. Rep. 628, 12 C. C. A. 365.

Why must not the question here sought to be raised by quo warranto be regarded as res judicata as against the moving parties, the city of Detroit and certain of its citizens? Under its charter, the city of Detroit has the charge and supervision of the streets of that city. It has the power to establish, open, widen, extend, straighten, alter, vacate, and abolish streets; to clean, grade, pave, repair, and improve the same; to prohibit and prevent incumbering or obstructing highways; to remove incumbrances froim such streets; and to control, prescribe, and regulate thei manner in which streets within the city shall be used and enjoyed. In the very act containing the grant to the, street-railway company, the supervision and control, by cities and other local municipalities, over streets and highways, is recognized,- and the exercise of the right granted is made dependent upon the consent of the local entity. If a street-railway company is operating its system upon the streets of the city of Detroit in the absence of a valid and binding consent granted by the city, the municipality is certainly a proper party, if not the proper party, to take proceedings to enjoin such operation, not only by virtue of its control over the streets, but also because the power to consent involves the-authority to prevent. The municipality moves in such case, not as a proprietor, but in its representative capacity, — as the representative of the public, — as the proper party to complain of the unauthorized use of such streets. The only question in issue is as. to the validity of the consent granted.

Counsel for the petitioners say in their brief that—

“ This application is made by the municipal authorities of the city, who are the trustees of the public, for the-protection of the interests of the public in the streets.”

Again they say:

“In this case the municipality itself makes the complaint. It is vested with the control of the streets in the interest and for the protection and benefit of the public. It is hindered and prevented from the exercise of such control by the acts of the railway company.”

The bill in the case in the United States court was filed by tbe same authorities, in precisely the same capacity, and to reach the same result. Can the adjudication, then, be avoided by the simple addition of individual members of the body comprising the beneficiaries? If so there will be no end to the litigation. In the case of Clark v. Wolf, 29 Iowa, 197, cited in Wells on Res Adjudicata (section 136), it was held as to a county — and the same principle would apply to a city — that a judgment against it, or its legal representatives, in a matter of general interest to all the people thereof, as one respecting the levy and collection of a tax, is binding, not only on the official representatives of the county named in the proceeding as defendants, but upon all the citizens thereof, though not made parties defendant by name. This must be the true rule as to matters of public concern, when the proper representative of the public has moved or has been made a party to the proceeding.

If the authority to consent to the use of its streets be regarded as a delegation of power to the municipality, and the authority over the streets be also considered as a delegation of power to the city, the municipality must be regarded, as is said in Railway Co. v. City of Belleville, 47 Ill. App. 388, as “related to the State as its agent," in so far, at least, as to conclude the State by litigation had in good faith respecting the subject-matter. Again, the State has regarded the matter of consent as one of purely local concern. A controversy arose between the city of Detroit and the Citizens’ Railway Company as to whether the consent of the city had been given in such a manner .as to be available to the present company and binding upon the city, and the city appealed to the courts, where the matter has been determined. The only question litigated was whether the consent given survived to the present company. In a proceeding instituted by the municipality, a court of competent jurisdiction has determined that matter in favor of the company, and that determination is conclusive upon all parties concerned.-

The order to show cause must be denied.

Long, Grant, and Montgomery, JJ., concurred with McGrath, 0. J.

Hooker, J.

Without dissenting from the views expressed by my brother, I prefer to concur in the result reached in the case upon other grounds. It is nowhere shown that this proceeding is of concern to the State. Indeed, counsel say that all that is asked is that the Attorney General shall permit the use of his name to the relators, thus practically confirming the already obvious fact that the city of Detroit wishes to be allowed to continue a litigation in the name of another which it cannot lawfully do in its own, being foreclosed by an adverse decision from a court of competent jurisdiction in a suit instituted by itself. It would be anomalous to grant a discretionary writ for such a purpose.