author: Blair, J.

text:
    EIS v. CROZE.
    1. Religious Societies — Funds—Ownership.
    Moneys accumulated by a voluntary unincorporated club composed of parishioners of a Roman Catholic church, not accumulated for general church purposes, but obtained either for the specific purpose of building a new church, or such other specific church .purpose as the membership of the club should determine upon, do not belong to the bishop of the diocese, nor t.o the church, nor are they subject to their control.
    3. Same — Trust Property — Declaration—Rights.
    A voluntary committee of men parishioners of a Roman Catholic church purchased a parcel of land for the purpose of providing a site for a new church building and took the title in the name of one of themselves, who executed a declaration of trust providing for the transfer of the property to the bishop of the diocese on payment by or for the church within three years of the money advanced. A club of the women parishioners contributed funds not belonging to or under the control of the church or of the bishop on the agreement that they were to have a half interest in the property, subject to the terms of the declaration of trust. The church declined the offer of a site and built elsewhere. Held, that the bishop could predicate no rights to the men’s half interest in the property on the action of the women’s club.
    3. Evidence — Parol Evidence — Varying Writing — Competency.
    On a bill by the Roman Catholic bishop of a diocese to enforce specific performance of a declaration of trust in certain real estate, a part of the funds for which were contributed by a voluntary club of the parishioners of the parish, parol evidence that the property was purchased by the trustee and others for the purpose of providing a site for a new church building is competent for the purpose of determining the legal effect of the action of the club. , '

    Appeal from Houghton; Streeter, J.
    Submitted June 4, 1907.
    (Docket No. 4.)
    Decided July 1, 1907.
    Bill by Frederic Eis, Roman Catholic bishop of the diocese of Sault Ste. Marie and Marquette, against Joseph Croze and others to enforce the specific performance of a declaration of trust. From a decree for complainant, defendant Croze appeals.
    Reversed, and bill dismissed.

      Lewis N. Legris, for complainant.

      Chadbourne & Bees, for appellant.
   Blair, J.

Complainant filed the bill of complaint herein to enforce the specific performance of a declaration of trust executed by the defendant Croze on the 4th day of April, 1893. The instrument declaring the trust, after reciting the purchase of certain real estate subject to certain liens and payment therefor with the proceeds of a note signed by Croze and indorsed by the other defendants, contains, among other provisions, the following:

“Now I, the subscriber, do hereby declare and make known that the said property is held by me in trust for the following uses and purposes, and with the following powers vested in me as such trustee and by virtue of this instrument expressly reserved to myself, namely:

First. The property above described shall be held in trust as security for the payment of the said note discounted as aforesaid, and the interest thereon, or for the payment to the subscriber and the said indorsers of any sum or sums which they or any of them shall pay by reason of the said note, or by reason of the making and indorsement of the same, or of any renewal or renewals of the same or any part thereof, and of any sum or sums which they or -any of them shall pay as interest on the same, and of any sum which they or any of them shall pay for the purpose of perfecting title to said property or for removing the liens therefrom, and until said sums and said note shall have been fully paid.

Second. Upon the full payment of the several sums mentioned in the foregoing paragraph by or on behalf of the St. Ignatius Church Society of Houghton, Mich., within the period hereinafter mentioned, but not thereafter, except at the option of said trustee and said indorsers, the said property is to be conveyed by the said trustee to the Right Reverend Bishop Yertin, or his successor, for the use of the said church society.

Third. After the expiration of three (3) years from the date of this declaration of trust, if within that time the said church society shall not have fully paid said amounts as mentioned in paragraph first, then the said trustee shall have, and hereby reserves and retains, the power and right, with the consent or request of a majority of said indorsers, including himself, to sell said property and to convey the same to such person or persons, and upon such terms as they shall deem proper. The proceeds of such sale to be applied as follows

This instrument was duly recorded, but was not delivered, being retained by defendant Croze. The circumstances leading up to the purchase of the property and the execution of the declaration of trust were, briefly, as follows : The society was contemplating the erection of a new church edifice, but the parishioners were not agreed as to the location of the new building. Father Manning, the then parish priest, the defendants, and others, were in favor of locating the building on the property in question. Others, and, as it afterwards developed, a majority, were in favor of locating the new building upon or near the old site. The defendants, for the purpose of procuring the location of the church upon the new or downtown site, organized themselves into a voluntary and unofficial committee, purchased the land in question, and caused the conveyance thereof to be made to the defendant Croze.

‘ ‘ The committee of men belonging to St. Ignatius congregation were anxious to have the church built on the niain street, and that property was purchased for that purpose. * * * It was with the end in view of getting this property for the new church. The indorsers on the note at the time were Mr. Croze, with the parties that were representing the crowd that wanted a church down town.”

The original loan was $2,389.92, increased in May, 1894, to $3,030.46. The principal source of revenue of the committee was the rent from the property. May 2, 1894, the committee borrowed $1,000 of the lessee of the property, for the purpose of making repairs, upon the note of Joseph Croze, trustee, indorsed by others of defendants. This note was paid in rent, and, until paid, the revenue from rents ceased. In the summer of 1894, the committee applied to an association of ladies of the church for assistance. These ladies were associated under the name of the “ No Name Club ” at one time; of the “ Harmony Club ” at another time. The nature of the-association, its relation to the church, to the men’s committee, and to the property in question, are stated by Mrs. Edwards, a member of the association, at the close of whose testimony it was stipulated that the other members would testify substantially the same. The following extracts from Mrs. Edwards’ testimony will sufficiently disclose the association’s attitude and legal relations to the property and church society:

“ I was a member of the club known as the ‘ Harmony Club.’ I think the club was organized in 1891 or 189%, but'I am pretty certain it was 1891. I was a member from the time it was organized. * * * They came to us with the proposition to take us in with them in the association. I don’t know what you would call it. They wanted funds to pay the interest on these notes that they had given for this property at the foot of the hill, and it seems to me that they had no money to meet the claims, as I understood it then, and as I understand it now. The money to repair that house after.the fire was money that was borrowed from Mrs. Fish (Mrs. Poisson), and she was to pay no rent until that $1,000 was reimbursed to her, and there was no rent coming in to pay the interest on these notes, and they had no way of reducing it without the rents, and they came to us with the proposition to come in with them and let us pay the claims of the property. At that time we had considerable money in the club fund. ,1 think it was in the neighborhood of #700. * * * After we had agreed to the proposition, all money that came from the rental of the property and all the money that had been made from entertainments and monthly dues went into the treasury of the Harmony Club and were paid to the treasurer, Mrs. Dube, and that money was used to pay all claims against this property at the foot of the hill, to pay the interest on notes and taxes, and reduce the principal. At least that is how I understand it. That has been done ever since we went into the club, since 1894. * * * The' money that was realized out of those picnics and socials was turned into the same general fund as all the others, turned into the treasury of the Harmony Club and used for the same purpose, as far as I am aware. * * *•

Q. As to the object for which this property was purchased ?

“A. When it was bought first, I think the understanding was that the new church was to.be put on there. The proposition was Father Manning’s. The gentlemen backed him in it, but he thought it was a good proposition for the church, providing we bought Dick Lang’s or this property; but at the same time he thought the property was worth the price that was paid for it at any time. * * *

UQ. Were you led to believe by the action of the men, Mr. Croze, and Mr. Fox, that this property would be turned over to the church when they were requested to do so ?

“A. I never had any conversation with them. I don’t think they led me to believe it or not to believe it. I think the formal organization of' the Harmony Club with a constitution and by-laws was in 1894, but. we had a club in existence that was practically the same club, known as the ‘ No Name Club.’ It was a ladies’ society at first without any formal rules or specific objects. I think it had a constitution and by-laws. It was so organized that we had regular meetings and kept records of the club. I think that wastrue before 1893, but I couldn’t swear. * * * That is a Copy of the original constitution of the club under the name of ‘No Name Club.’ I think it was the No Name Club in 1891. I didn’t think it was dated 1894. Later the name was changed to the ‘Harmony Club.’ I think there was no other change in the reorganization except the change of name. I think this is a copy of the original ‘No Name ’ constitution.”

Sections 2 and 5 of the constitution are as follows:

“Sec. 2. The object for which it is formed is the promotion of sociability; unity and thorough Christian charity among its members; friendship in assisting eaph other by every honorable means; unity in associating together for mutual support in sickness as well as enjoyment while in good health; true Catholic charity in doing to each other as we would have others do unto us.

“Sec. 5. In case of an appropriation of money for charitable, benevolent, fraternal or extraordinary purposes, other than for paying the common or running expenses of the club it shall be the duty of the member asking for such appropriation to notify the president and secretary at least fifteen days before the next regular meeting of her intention, and it shall be the duty of the president and secretary, either verbally or in writing, to notify, previous to the meeting, all members of the club in good standing that such demand will be made and to determine such appropriation, the concurrence of three-fourths of the valid votes cast shall be necessary. Whenever all these conditions are not strictly complied with, the president, secretary and treasurer are enjoined not to issue an order or to pay over the amount of the appropriation, and if they do so, it shall be at their own risk and peril.”

Mrs. Edwards further testified:

“ I think it was in 1894 that an arrangement was made by which the Harmony Club became interested in this property, and from that time the club paid certain moneys on account of the indebtedness on this property at various times, and continued to do so, as far as my knowledge .goes, until last May, a year ago. The Harmony Club also spent money for other purposes, as I recall, twice. The first time as an appropriation to pay for the furnace that'was put in the parsonage. I think it was $70. The second time was a check that was sent to Father Rezek when he was away and ill in the hospital; $100, if I am not mistaken. There was also an appropriation towards the purchase of a window. That was $500. Those moneys came out of this same fund. The by-laws, I think, provided for the authority. We discussed the question of paying for the furnace and voted upon it, and it was decided to pay it. It was a vote of the Harmony Club. The moneys belonged to the Harmony Club until they appropriated them to any different use we saw fit. I couldn’t say if the St. Ignatius Church Society as a society would have no right to control those funds without the consent of the Harmony Club. We had never given them the right to control the funds, but the right was taken away. * * * In the organization of the club, no one but the members had authority to direct what to do with the money. * * * I don’t think they had the right to appropriate money for any purpose the club saw fit. It wasn’t the intention of the club to work for any charitable purpose. * * *

Q. At the time it was first arranged that the ladies should assist in raising funds and should apply those funds towards the expense of this building, it was understood to be the desire of the people interested that the building of the new church should be put there, was it not ? * * *

“A. Yes, the new church was spoken of as being put there. I don’t know if it was before the decision had been made by the church society as to the location of the church. I don’t know when the decision was reached. Between Father Manning’s time and down to the time that Father Rezek came, there had been no decision on the location of the church. That matter was decided after Father Rezek’s incumbency, and the decision was that the church should be put where it stands today, in the neighborhood of its old location on the top of the hill. I don’t remember when that action was taken by the church society. It was a formal action by vote of the parishioners. I think the trust deed to Mrs. Hennes was drawn up in March, 1895. That was before Father Rezek came here, and must have been before the location of the church was decided. The date of the trust deed to Mrs. Hennes was June 29, 1895. [Referring to paper.] Mrs. Hennes took that as trustee for the Harmony Club, and in no other capacity. I don’t know that it was given to secure what we had paid out. I thought we were promised an undivided half interest in the property, and I supposed that was the reason that it was given. * * * There was a good deal of discussion in the Harmony Club as to the disposition of their funds, the eventual disposition of this property, during the past few years. There was no division among the majority of the club. We had the one purpose in view. There was perhaps one or two objected to its going to the church. They objected to Father Rezek handling it. Any other priest could handle it. We all expressed a preference for putting it in an altar, but the money would have been given to the priest and let him order the altar. There were a few that proposed that the money should be spent directly by the ladies; that they should determine what it should go into. For a long time it was a matter of discussion in the club. The final action as to the disposition of the interest of the club in the property was taken last fall, I think, very recently. That was done by a vote of the clnb, to turn the property over to the bishop or the church society. Up to that time no determination had been come to permanently. That action was taken at a meeting of the club and was voted on. * * * That action of the club resulted in something of the nature of a quitclaim deed to Bishop Eis of our interest, whatever it would be, which was supposed to be, or which I supposed was an undivided half interest. That was the end of the connection of the Harmony Club with this property. Before that action was taken resulting in the conveyance to the bishop of the interest of the Harmony Club to the property, there had been for a long time a discussion among the members of the club as to what to do with it. Among other things discussed was whether we would sell our interest to Mr. Croze or to anybody who would buy it. The discussion went so far as to fix the price we would take for our interest, and that was with the idea of converting our interest into money and then using our money in such a way as we saw fit for some church purpose. * * * This deed or declaration of trust that was given to Mrs. Hennes as trustee was to give us a half interest by reason of the moneys we had paid and were paying. So far as the Harmony Club was concerned, that was all the interest we have had, and up to the time that interest was transferred to the bishop, it belonged to the Harmony Club as a club. I don’t think that the public understood that the picnics and entertainments were for the Harmony Club. I don’t think that most people that attended understood it that way. They thought we were working for a new church, and what money they gave went for a new church. I think the general public thought the proceeds went into the general fund of the church, because I don’t think they discriminated or asked any questions what we did with the money, except we were working for a new church. We told people we were working for a new church. It was for that particular purpose, for a new church. After the site of the church had been decided upon, I am not aware that there was any change in the workings of our club, collecting the money and turning it over to the bank or to our treasurer. Yfe gave socials and picnics in the same way after that as before. The intention of the club was not for any charitable purpose. The intention was for a new church from the very start. * * *

. “ Q. Will you state whether or not that constitution _ expressed the intention of the club, as written by Mr. W ieber ?

“Mr. Bees: Objected to as immaterial and as trying to vary the terms of a written instrument.

“A. No, it did not express the intention of the club. * * * It was Mr. Wieber’s proposition to'put the purposes of the club as it stands in that constitution that was shown to me. We had had trouble with the priest previous to this time. Some of the ladies of the church had got rather tired of working for a new church, as we had been doing, and then having the money going into the general fund of the church, and then being squandered, and we planned to put whatever money we raised into the bank and used as a nucleus for a new church. We had had one entertainment, and the priest had been to us and wanted to get the money from us, and we had some trouble over it, and we decided to form this No Name Club, and we raised money and deposited it in the bank to the credit of our treasurer, and Mr. Wieber put it in the form of a charitable organization or something of that kind, so that the priest or some other priest might not have any hold upon the money; but the object was understood by every one of us who helped to draw up those by-laws that the money was to go for a church fund. It doesn’t state so in the by-laws. It states a benevolent or fraternal organization, but that was the object, a new church fund.

“The deed given by Mr. Croze to Mrs. Hennes was given to her with the understanding that it conveyed an undivided one-half of that property to the club in case the option was not taken up by the church, by the bishop. That is how I understood it. ■* * * We at one time tried to transfer our interest in this property to Mr. Croze. We offered it to him. We wanted him to buy it, or we wanted to sell to him, or that he sell to us. He made us an offer, I think, of $1,000 for our half interest, which we considered too small and wouldn’t accept. I don’t think we made him an offer for his portion of it. I don’t recall it.

“The real intention of the formation of this club was that it was formally organized so that we could raise money and keep the control of the money ourselves. At least until such a time as we had a priest we could trust, or until such a time as we wanted to let it go. That is just what we did; kept the funds or the property in our own hands until last fall, and under our own control. * * *

Paper offered in evidence, marked “ Exhibit F:”

“Mrs. Elizabeth Hennes,

“ Trustee of Harmony Club.

“Madam: At a special meeting of the Harmony'Club held October 12, 1904, called by order of the president, Mrs. Joe Haas,.the following resolution was adopted: Resolved, that the Harmony Club interest in the property known as the Harmony Club property or Michigan House, situated at the corner of Shelden and Portage streets, be transferred to the St. Ignatius Church Society, and you are hereby authorized and empowered to make such transfer.”

Signed, etc.

In pursuance of this resolution, Mrs. Hennes, on October 15, 1904, conveyed the undivided one-half interest held by the club in the property to the complainant, “for the sole and , only use, benefit, and behoof of the St. Ignatius Church congregation,” etc. During the same month the present suit was commenced.

Defendant Croze testified:

“ With regard to the instrument of Mrs. Hennes, after consideration about this house and place — we were getting pretty fair rent — I went to the ladies, for I was one of the members of the club, and I made a proposition to them. They had some money, and if they would come in with us for the corner house, that for their money I would give them a deed for half the property. That proposition was accepted by the ladies, and the result of it was the execution of the instrument in evidence. There were no' other transactions with reference to the property since then. Nothing in the way of deeds or papers besides that one. That was the final paper. * * *

From the time that this property was purchased, up to the present time, I haven’t put in anything but donations. The donations to the socials, and sometimes my tugs and scows; I would charge them half and sometimes not at all, and sometimes a little; but I never considered I would ask anything. I don’t think any cash money has. been paid by me in payment of the principal or interest on any sum of money borrowed for that property. All the work that was done through my men on that property was paid to me by the Harmony Club. I rendered a bill, and they gave me a check.”

Some time in 1902, and afterwards, demand was made of defendant Croze for a deed of the property by the parish priest, acting under power of attorney from complainant, coupled with an offer to pay all demands and charges against the property, in compliance with the declaration of trust. All of such demands were refused.

The bill of complaint was taken as confessed by all of the defendants except Joseph Croze, who alone appeals to this court from the decree granting the prayer of the bill. It is the contention of counsel for complainant that the Harmony Club was a church society organized for the benefit of St. Ignatius Church Society; that the moneys raised by the club constituted a trust fund for the use and benefit of St. Ignatius Church Society, and therefore belonged to and were subject to the control of complainant; that the moneys belonging to complainant for the use and benefit of St. Ignatius Church Society, and having been paid by the Harmony Club in the discharge of obligations created by the purchase of the property and covered by the declaration of trust, were payments “by or on behalf of the St. Ignatius Church Society,” under the provisions of such declaration.

It is apparent, we think, from the record, that the men’s committee purchased the property in question for the purpose of providing a site for the new church building, that they solicited the aid of the ladies’ society for that purpose, and that the ladies so understood. It is also clear that the moneys accumulated by the No Name or Harmony Club were not accumulated for general church purposes, but were obtained either for the specific purpose of building a new church, or for such other specific church purpose as the club members should determine upon. The funds in the club treasury did not belong to the complainant, nor to the St. Ignatius Church Society, nor were they subject to their control. The club members, who, by their energetic, unselfish, and intelligent efforts, had accumulated the fund, had a right to determine the church purpose for which it should be used. Amish, v. Gelhaus, 71 Iowa, 170.

The club united with the defendants in purchasing the land in question for the purpose of providing a site for the new church, if the church society concluded to accept the offer. The purpose of the club members was the same as the purpose of the men’s committee in making the original purchase, and they no more represented the complainant or the church society in their dealings with the property than did the men’s committee. By the agreement of June 29, 1895, the club, through its trustee, Mrs. Hennes, became entitled “to an undivided one-half interest in and to ” the real estate, subject to the terms and conditions of the declaration of trust. Some time after the club acquired written evidence of its interest in the lands, the church society determined to locate the new church upon the old site, and not to accept the lands in question for the purpose for which they had been purchased. This action of the church society was equivalent to notice to the trustee and the club that the society did not desire the property for the purpose for which it was acquired. The exact time óf this action does not appear, but it must have been later than November, 1895, when Father ftezek became pastor. A few months later, the time expired within which, “ but not thereafter, except at the option of said trustee and said indorsers, the said property is to be conveyed,” etc. No steps were taken by the church society or complainant during the prescribed period, nor for six years thereafter, to comply with the provisions of the declaration of trust, or even to notify the trustee that they considered it in force, and the record discloses no waiver of his rights on the part of the trustee. The payments which were made by the club after the expiration of the three years were made in pursuance of their original understanding embodied in the written agreement that they were to have an undivided half interest in the property.

“ The deed given by Mr. Croze to Mrs. Hennes was given to her with the understanding that it conveyed an undivided one-half of that property to the club in case the option was not taken by the church, by the bishop.”

The church, or the bishop, did not take up the option, and the undivided one-half interest of the club in the real estate, representing its payments, has been conveyed to the complainant, which counsel for defendants concede he is entitled to hold.

The complainant can predicate no rights upon the action of the Harmony Club, so far as the performance of the trust conditions is concerned, and the failure of performance on his part deprives him of the right to call for performance on the part of the trustee. The testimony as to the purpose for which the property was purchased was objected to as tending to vary the terms of the declaration of trust. Without determining whether this objection is valid in a case like this, where complainant can only hold real estate “for charitable, religious, and literary purposes, or for burial grounds ” (3 Comp. Laws § 8310; Thompson v. West, 59 Neb. 677 [49 L. R. A. 337]; First M. E. Church of Chicago v. Dixon, 178 Ill. 260), we are of the opinion that the evidence was competent for the purpose of determining the legal effect of the action of the Harmony Club.

The decree of the circuit court is reversed, and the bill of complaint dismissed, with costs of both courts to defendant Croze.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    WOLF v. GRAND RAPIDS, HOLLAND & CHICAGO RAILWAY.
    1. Carriers — Baggage—Loss—Action—Evidence.
    In an action against a carrier for the loss of baggage, testimony of its transfer agent that he delivered the baggage at defendant’s freight depot is sufficient to prove that the baggage 'was placed in the custody of defendant.
    2. Same — Checking Baggage — Authority oe Agent.
    That the carrier’s agent checked plaintiff’s baggage before plaintiff had procured his ticket for passage, in disobedience of instructions, is immaterial on the question of responsibility for the baggage, where plaintiff subsequently procured tickets. *
    3. Same — Baggage—Liability of Carrier.
    A carrier is liable for the loss of a passenger’s baggage properly checked unless lost by the act of God or the public enemy.
    4 Same — Form of Action. •
    That a passenger bringing an action against a carrier for the loss of his baggage declares in case rather than assumpsit does not affect the liability of defendant, nor require plain, tiff to show negligence.
    5. Same — Connecting Carriers — Partnership—Joint Liability.
    Where a railroad company and a steamship company advertised a through line between two points, and had a common agent who sold through tickets, and another who checked baggage through, there were circumstances to warrant the . inference that they were partners in the business of carrying passengers and baggage between those points, and were therefore jointly liable for the loss of baggage so checked.
    Error to superior court of Grand Rapids; Stuart, J.
    Submitted June 4, 1907.
    (Docket No. 8.)
    Decided July 1, 1907.
    Case by David Wolf against the Grand Rapids, Holland & Chicago Railway and the Graham & Morton Transportation Company for the loss of certain baggage. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Diekema & Kollen, for appellant railway.

      Grant Newell, for appellant transportation company.

      G. A. Wolf, for appellee.
   Carpenter, J.

The defendant railway company operates an interurban railway from Grand Rapids to Holland, and the defendant transportation company operates a line of boats from Holland to Chicago. In the summer of 1906 these two defendants made an arrangement by which passengers and their baggage were carried from Grand Rapids to Chicago; being carried by the railway company to Holland and by the transportation company from that point to Chicago. They advertised this route as the “Grand Rapids Chicago line. Fave two dollars. Baggage checked through.” July 27, 1906, plaintiff, his wife, and two children took this trip. He bought through tickets for the four. Before buying them, a transfer agent came to his residence and checked his baggage through to their destination. This baggage was never delivered, and, though plaintiff made repeated demands, no explanation was ever afforded him. He brought this suit, and recovered a verdict and judgment against both defendants.

We are asked to reverse this judgment upon several grounds, all of which relate to the proposition that the trial court should have directed a verdict in defendants’ favor.

First. It is contended that there is no testimony tending to prove that the baggage ever came into the custody of either of the defendants. This contention we answer by saying that there is such testimony. That testimony was given by the transfer agent. He testifies:

“ These trunks I delivered at the freight depot before 6 o’clock. If I remember right, this trunk was delivered at the freight depot before 6 o’clock.”

Second. It is contended that the transfer agent had no authority to check the trunks, because at the time he checked them plaintiff had not yet procured his tickets. The testimony shows that the transfer agent had authority to check the trunks over defendants’ lines from Grand Rapids to Chicago. It is true he was instructed not to check baggage unless the party desiring to have it checked produced a ticket; but this was only an instruction. It was not a limitation of his authority. If plaintiff had not subsequently purchased his tickets, a very different case would be presented. But in this case plaintiff did purchase his tickets, and did thereby entitle himself to all the rights of a passenger, one of which was to have his baggage checked. The fact that the transfer agent disregarded his instructions was an entirely, immaterial circumstance; for plaintiff to have insisted upon the baggage being rechecked after he had purchased the tickets— and this was his right and duty according to defendants’ contention — would have been an act of sheer folly. By purchasing the tickets plaintiff fully corrected the consequences of the mistake of the transfer agent.

Third. It is contended that there can be no recovery in this case, because plaintiff, having commenced his action in case instead of assumpsit, was bound to establish negligence, and there was no evidence of negligence. Defendants’ liability in this case was that of common carriers of goods; that is, they were liable unless the goods were lost by the act of God or the public enemy. See 6 Cyc. p. 662; 3 Am. & Eng. Enc. Law (2d Ed.), p. 546. They do not claim that the loss came within either of these exceptions. Their liability was in no way changed because plaintiff elected to declare in case, instead of assumpsit. 1 Hutchinson on Carriers (3d Ed.), § 204; Dyke v. Railway Co., 45 N. Y. 113.

Fourth. It is contended that there was no evidence of such a relation between the two defendants as to make them jointly liable. The evidence proves that the two defendants had entered into an arrangement for carrying passengers and their baggage from Grand Rapids to Chicago. They advertised to the public that they had formed a Grand Bapids Chicago line. They had a common agent who sold tickets and another common agent who checked baggage. Their common«agent sold plaintiff his tickets and checked his baggage. From these circumstances the jury were warranted in inferring that in the carrying of passengers and their baggage from Grand Bapids to Chi-' cago the defendants were partners, and therefore jointly liable to plaintiff. Sun Ins. Co. v. Kountz Line, 122 U. S. 583; Block v. Railroad Co., 139 Mass. 308; Wyman v. Railroad Co,., 4 Mo. App. 35; 6 Am. & Eng. Enc. Law (2d Ed.), pp. 654, 655. This case is ■ easily distinguished from Detroit, etc., R. Co. v. McKenzie, 43 Mich. 609, and Rickerson Roller Mill Co. v. Railroad Co., 67 Mich. 110, and from other cases relied on by defendants. In those cases it was held that a railroad company, receiving goods for a destination beyond the limits of its own line, discharged its obligation when delivery was made to the connecting carrier. • There the transportation companies did not, as in the case at bar, hold themselves out as united in a joint enterprise.

The judgment is affirmed.

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


author: Grant, J.

text:
    JEWETT v. NORTHWESTERN NATIONAL LIFE-INSURANCE CO.
    1. Life Insurance — Premiums—Time of Payment.
    That a life-insurance policy dated August 1st, and providing for payment of premiums on .the 1st day of certain months, was not issued until August 18th, does not postpone the time of payment of the subsequent premiums to the 18th of the several months.
    s! Same — Forfeiture—Nonpayment of Premiums — Waiver.
    Assured, having failed to pay a quarterly life-insurance premium, due August 1st, wrote on October 27th to know how much was due. The company replied on October 81st, stating the amount of the past-due premium with interest, which assured remitted November 4th and the company receipted for November 7th. Held, that the action of the company in receiving and retaining the remittance of November 4th was not a waiver of the forfeiture occurring by reason of the nonpayment of the premium due November 1st.
    Error to Wayne; Brooke, J.
    Submitted June 4, 1907.
    (Docket No. 21.)
    Decided July 1, 1907.
    Assumpsit by Ina L. Jewett against the Northwestern National Life-Insurance Company on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    On August 11, 1902, one James H. Jewett, the husband of plaintiff, made application to the Northwestern Life & Savings Company, of Des Moines, Iowa, for insurance upon his life. Mr. Jewett was then a subagent for said company, soliciting insurance in the city of Detroit. The first year’s premium ($100) was paid by Mr. Jewett on August 11th. Upon the receipt of the application and the money the policy was issued to Mr. Jewett on August 18, 1902. Mr. Jewett made no further payment until November 4, 1903, when, through bis wife, be sent a draft for $95.59. On October 97,1903, Mr. Jewett, through his wife, wrote the company, asking for a statement of the amount of the pi’emium due. The company replied to that letter October 31st, informing him that the total amount due for the delinquent payment was $95, and interest 59 cents. This amount was remitted by letter November 4th. On November 7th the company sent Mr. Jewett a receipt for the money, acknowledging it as the quarterly premium due on the policy August 1, 1903. No further payments of premiums were made, and Mr. Jewett died November 17, 1903. Plaintiff, his widow, is the beneficiary named in the policy. The defendant in this case reinsured and guaranteed all the policies of the Northwestern Life & Savings Company. The company was duly notified on December 1, 1903,. of the death of Mr. Jewett, and was asked for blanks upon which to make proof of death. The company refused to furnish the blanks, and waived proofs , of death. The policy of insurance, after the first year’s payment, which was paid in advance, required a like amount to be paid each year thereafter in four installments “ on or before the first day of August, November, February, and May in every year, until ten full annual premiums have been paid, or until the prior death of the insured.” The insurance covered the life of James H. Jewett—
    “ In the amount of $500, commencing on the first day of August, 1909, at noon, for a period of five years, and in the amount of $1,000, commencing on the first day of August, 1907, at noon, and continuing for a periód of five years; and doth hereby promise and agree to pay the amount of said insurance at its office in the City of Des Moines, Iowa, to Mrs. Ina L. Jewett, wife, her executors, heirs, administrators or assigns, upon receipt and approval at said office of proofs, as hereinafter required, of the death of the insured during the continuance of this policy.
    “Should this policy be kept in force for the full term of ten years (no death liability having accrued hereunder), then the said company doth promise and agre.e to pay to the legal holder hereof, at its Home Office, the sum of $1,000 and all accumulations in excess of said guarantee which the full amounts to the credit of this policy in the reserve and savings funds may produce.
    “This policy is issuéd subject to the provisions, regulations and agreements stated on the subsequent pages hereof, which are hereby referred to and made a part of this contract.”
    It further provides:
    “ The nonpayment of any premium when due shall forfeit all premiums paid on this policy, and terminate the liability of the company thereunder except as hereinafter provided.”
    There was a clause for the reinstatement of a lapsed policy, which is as follows:
    ‘' This policy may be reinstated during the life of the insured at any time within twelve months of date of lapse by the payment of all past due premiums, and a fine of ten per cent, per annum on such overdue premiums.”
    Under the head of “general regulations” there was a clause which provided:
    ‘ ‘Any indebtedness to the Company, including any balance of the current year’s premium remaining unpaid, will be deducted in any settlement of this policy or any benefit thereunder.”
    The above facts were agreed to, so there is no disputed question of fact involved. The court directed a verdict for the defendant, holding that the policy had become forfeited because of the failure to pay the premium. due November 1st.

      George P. Voorheis and Fred B. Willard, for appellant.

      Wilkinson, Post & Oxtoby, for appellee.
   Grant, J.

(after stating the facts). 1. Mr. Jewett was an agent of the insurance company, and familiar with the various forms of its policies. He deliberately chose his form of policy, with full knowledge of all its terms and conditions. There is no claim of any unfair conduct on the part of the company. The application and the policy indicate that the policies under this form of insurance were to commence on the first day of some month. Mr. Jewett chose to have his policy dated the 1st of August, rather than the 1st of September following. The terms of the policy are so clear and explicit that “he who runs may read ” it and understand it. It provided for the payment of $100 to cover the first annual premiums for one year, running from the 1st day of August to the 1st of August following. It provided that the premiums thereafter should be paid in quarterly installments of $25 each on or before the 1st day of certain months, and that failure to pay as provided should result in the forfeiture of the policy. There is always a time between the application for a policy and its issuance by the company, where it is expressly so provided, that liability does not attach. That fact, however, does not operate to change the times and terms of payment expressly provided in the policy itself. The contention of the learned counsel is that, inasmuch as the policy in question was not in force until the 18th day of August, therefore the payments of the quarterly premiums were postponed 18 days. It would follow also that, had Mr. Jewett lived 10 years, the policy would not have become due until the 18th day of August, 1912, instead of August 1st, as expressly provided in the contract. To so hold would not be the interpretation of ambiguous language, but would result in a court-made contract. Sydnor v. Insurance Co. (Pa.), 26 Super. Ct. Rep. 521; Thomas v. Insurance Co., 142 Cal. 79; Methvin v. Life Ass’n, 129 Cal. 251; McConnell v. Assurance Society, 92 Fed. 769; Bryan v. Insurance Ass’n, 21 R. I. 149.

2. It is urged that the receipt of the premium due August 1st, after another premium was due November 1st, is a waiver of the nonpayment of November 1st. On October 27th, Mr. Jewett wrote for the amount of premium then due on his'policy, evidently knowing that he was chargeable with interest from the 1st of August should the company see fit to accept the defaulted payment, and thus keep the policy in force. On October 31st the company replied, stating the amount, and on November 4th Mr. Jewett remitted the amount. Mr. Jewett knew that there was another premium which would be due on November 1st. The correspondence had no reference whatever to future premiums. It related solely to a past-due premium, and the only one then due, and the receipt expressly mentioned it as a past-due premium. The company was under no legal obligation to notify Mr. Jewett that another premium would soon be due. He was not prejudiced by the action of the company, and its receipt did not operate as a waiver of the November premium.

The judgment is affirmed.

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


text:
    BURNHAM v. MICHIGAN MUTUAL LIFE-INSURANCE CO.
    . Life Insurance — Premiums—Note—Nonpayment—Effect.
    An application for a life-insurance policy provided that if a premium be settled by note such note should be regarded only as an extension of time of payment and that the company should not be liable for a loss occurring while such note remained due and unpaid. A premium note, past due and unpaid at the time of assured’s death, contained the words, “Send to office for collection,” the word “ office ” being written in the blank, and plaintiff claimed that the note not having been sent to assured’s office for collection, the company was in default and the policy in force. Held, that if the quoted words could be regarded as a part of the note, rather than as a mere memorandum for the company’s benefit, there was nothing to show that the “ office” referred to was the office of assured rather than that of the company, and that the company was not liable.
    Error to Wayne; Frazer, J.
    Submitted June 4, 1907.
    (Docket No. 22.)
    Decided July 1, 1907.
    Assumpsit by Lillian J. Burnham against the Michigan Mutual Life-Insurance Company on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Charles Flowers, for appellant.

      Wilkinson, Post & Oxtoby, for appellee.
   Carpenter, J.

This suit is brought to recover upon a policy issued by defendant insuring the life of plaintiff’s husband, George W. Burnham. The policy was dated August 22, 1902. The insured died November 17, .1902. For the premium, which was not paid in cash, the insured gave a note, of which the following is a copy:

“$74.75. Detroit, Mich. August 28th, 1902.

“ November 10th, 1902,1promise to pay to the order of the Michigan Mutual Life Insurance Company, seventy four and -jfv dollars. Value received.

Due November 10, 1902.

Send to office for collection.

[Signed] “ Geo. W. Burnham, 1034 — 14th Ave.”

This note was made by filling out a printed blank. The words in italics show what the blank was before it was filled out. The note was past due and unpaid when the insured died. The application contained this clause:

“ If the first or any subsequent premium on the policy shall be settled wholly or in part-by note or other obligation, * * * such settlement shall not be deemed a payment, but only an extension of time for the payment of such premium, and, if such note or other obligation or any renewal thereof shall not be fully paid when due, then for any loss incurred while such note or obligation remains due or unpaid the company shall not be liable.”

The trial court held that under these circumstances there could be no recovery, and directed a verdict in defendant’s favor.

Plaintiff’s counsel concedes that this ruling would be correct were it not for the writing on said note: “ Send to office for collection.” He contends that this writing is a part of the note; that it obligated defendant to send the note to the office of the Detroit Journal, where the insured was employed; and that, because this was not done, defendant itself was in default, and therefore plaintiff was entitled to recover. The learned circuit judge decided that the writing under consideration was not a part of the note, but, like the writing just above, “Due November 10th, 1902,” was a mere memorandum for the convenience of defendant itself. It is unnecessary to determine the correctness of this conclusion; for, if the memorandum in question is a part of the note, as plaintiff’s counsel contends, there is no competent testimony in this case from which the jury could infer that the office referred to was that of the Detroit Journal. On the contrary, the only permissible inference is that it was the office of defendant. The trial court, therefore, properly directed a verdict in defendant’s favor.

The judgment is affirmed.

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


author: Grant, L

text:
    BREAKEY v. WOOLSEY.
    1. Boundaries — Monuments—Surveys—Effect.
    Fences and monuments of long standing, established not long after a survey and plat were made, are better evidence of true boundary lines than surveys made after the original stakes have disappeared.
    2. Same — Agreement—Effect.
    An agreement between adjoining landowners establishing a boundary line, acquiesced in by the parties, is binding, although the lino established is not the original one.
    Appeal from Calhoun; North, J.
    Submitted June 5, 1907.
    (Docket No. 27.)
    Decided July 1, 1907.
    Bill by Julia E. Breakey against George S. Woolsey and Phoebe J. Woolsey to determine'the boundary line of certain real estate. From a decree for defendants, complainant appeals.
    Affirmed.
    Laura A. Lynn in 1901 was the owner of the west half of lots Nos. 2 and 3, of block No. 44, in Hurd’s addition to the city of Marshall. She purchased them in 1888. There were at that time well defined fences along the westerly and northerly sides of said property, portions of which were in existence when this suit was launched December 21, 1905. In 1901 Mrs. Lynn sold to the defendant George S. Woolsey the west half of lot No. 2, and the east fourth of lot No. 3,—
    “Beserving the right to use the driveway along the west line of said lot, it being understood that each party shall have the right to use said driveway and that each party shall maintain and keep in repair one-half of said driveway, provided that the west line of said driveway shall be at least six feet and two inches from the house now located on the lot west of the above described premises.”
    Mrs. Lynn had built a house on the westerly part of this land, and a house and barn on the easterly portion, the part conveyed to Mr. Woolsey. The grantor also reserved the barn situated on the land conveyed to Woolsey. About midway between these two houses there existed, and had for a long time, a driveway. Shortly after the deed to Woolsey he and Mrs. Lynn measured from the westerly boundary line of lot 3 in order to determine the line between the westerly three-fourths of lot 3 and the easterly fourth, which was to be the boundary line between the two parcels of property. An iron stake was driven into the ground at the north boundary line. Mrs. Lynn moved her barn, and located it about one foot west of this stake, and Mr. Woolsey built a barn 14 inches east of the same. Subsequently Mr. Woolsey and Mrs. Lynn improved the driveway, straightening the edges and locating the western wheeltrack 6 feet 2 inches from the Lynn house, and placing cinders upon it. A woodshed had also been constructed on the westerly part of lot 3 with the eaves at the westerly line as indicated by the fence. In this condition in September, 1904, Mrs. Lynn and her husband, who had meanwhile become tenants by the entirety, sold and conveyed the west three-fourths of lot 3 to the complainant. The deed contained the following clause:
    “ Also including the right to use the driveway along the west line of the east \ of said lot No. 3, according to the terms of a deed given by Laura A. Lynn to George S. Woolsey, on the tenth day of July, A. D. 1901.”
    A dispute subsequently arose between the parties to this suit in regard to this driveway, and the complainant, claiming that the land between the two lots was not located in accordance with the original plat, filed the bill in this case, asking the court to determine the boundary line between the parties, to locate a driveway and determine its width, and to restrain encroachments upon complainant’s land. Answer and replication were duly filed, proofs taken in open court, and decree entered for the defendants. In addition to the above facts, the learned circuit judge also found that there was considerable inaccuracy in the plat of Hurd’s addition, which was recorded over 50 years ago, and that, as to the property in this case, there was great uncertainty. Block No. 44 is cut up into a dozen or more city lots, varying in size, owned by different parties, and occupied by them and their grantors for half a century. On the block are numerous fences of long standing, and well defined. In one instance a monumental tree was placed at the intersection of the lines of four of these lots, and is still standing, and these various lots have for years been maintained relative to these old boundary lines, some of which have been known to exist for upwards of 50 years. Upon checking up these boundary lines from surveyors’ monuments, found in a westerly direction, they are found to be accurate; but, on measuring the distance across block No. 44, it was discovered that there is a surplusage of about 1 inch to the rod, 31 inches in all, and, if the surveyors’ monuments found in the easterly direction should be followed, the various property lines would be shifted from a few inches to upwards of a foot, and would unsettle practically all the north and south boundary lines of the whole block. It would necessitate moving the defendants’ barn and the complainant’s woodshed. A decree is entered establishing the line according to thé measurements made by Mr. Lynn and Mr. Woolsey at the time of the transfer of the land to Woolsey. In other words, he located it three rods east of the fence marking the west boundary line of lot 3.

      John C. Patterson, for complainant.

      Miller & Miller, for defendants.
   Grant, L

(after stating the facts). It is the contention of the learned counsel for the complainant that the deeds were made with reference to the original plat and monuments, and they must control. If the location of the original monuments and stakes was conclusively established, there would be some force in this contention. But the judge expressly finds that it was not, and that, in the absence of such location,'the fences and other monuments, erected and established about that time, and ever since recognized, are better evidence of the actual location of the lot lines than are surveys based upon uncertain monuments. The evidence fully sustains his finding. The distance between the foundation walls of the two houses is 19 feet. The present driveway as it has always existed, and, as apparently agreed to by the Lynns and Mr. Woolsey, is 6 feet 10 inches wide, 6 feet 2 inches from the Breakey house, and 6 feet from the Woolsey house. The location of the driveway, as contended by the complainant, if of sufficient width for the passage of loads of hay (and it is conceded that such was the intention),' would, as found by the circuit judge, necessitate the moving of the defendant’s residence. No stakes of the original survey were found. The westerly fences of complainant’s lot and other fences and monuments were established not long after the survey and plat were made. It was said in Carpenter v. Monks, 81 Mich. 103:

“Fences of long standing, erected upon what parties have called the true line, and up to which they have improved and cultivated, are better evidence of the true line than surveys made after the monuments have disappeared.”

This feature of the case is ruled by that case, and also by Flynn v. Glenny, 51 Mich. 580, and other cases therein cited.

We are also of the opinion that the Lynns and Mr. Woolsey established a boundary line by agreement, and thereafter acquiesced in it, and so did the parties to this litigation, until the complainant believed that the original survey and plat would give her more land. Such an agreement is binding, although the line established is not the original one. Brown v. Bowerman, 134 Mich. 695; Manistee Manfg. Co. v. Cogswell, 103 Mich. 602; F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162.

The decree is affirmed, with costs.

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


text:
    GRAND LODGE OF ANCIENT ORDER OF UNITED WORKMEN OF THE STATE OF MICHIGAN v. McKAY.
    Life Insurance — Mutual Benefit Insurance — Designation of Beneficiary — Member of Family — Evidence.
    On a bill by a fraternal beneficial association to interplead the claimants of the proceeds of a certificate, evidence examined, and held, that a foster son of deceased, never legally adopted, who had his own home, separate from that of deceased, was not a member of the family of deceased, and that the designation of him as beneficiary in the certificate was invalid under the rules of the order.

      Gross-appeals from Wayne; Rohnert, J.
    Submitted June 5, 1907.
    (Docket No. 30.)
    Decided July 1, 1907.
    Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen of the State of Michigan against Mary J. McKay, William D. McKay, Lillie Bain, Annie McKay, and Margaret McDonald to determine title to the proceeds of a benefit certificate. From a decree awarding a part of the fund to defendant Mary J. McKay, defendant William D. McKay appeals; and from a decree awarding the balance of the fund to defendant William D. McKay, defendants Bain, Annie McKay, and McDonald appeal.
    Modified and affirmed.

      John E. Ryan (Van Zile & Brownson, of counsel), for appellant William D. McKay.

      Corliss, Leete & Joslyn, for appellants Bain, Annie McKay, and McDonald.

      Wardall & Wardall, for appellee.

       As to who is a member of the “family” within contract of benefit society, see note to Supreme Lodge, Order of Mutual Protection v. Nevins (Mich.), 3 L. R. A. (N. S.) 334.

   Blair, J.

Complainant is a fraternal, beneficiary association, organized under Act No. 130, Pub. Acts 1899 (2 Comp. Laws, § 8047). Robert G. McKay became a member February 28, 1878, at Detroit, and remained a member until his death, September 30, 1904, in Seattle, Wash. Complainant filed its bill of interpleader and deposited the beneficiary fund of $2,000 in court for distribution to such claimants as should be determined to be entitled thereto. Decree of interpleader was entered, and complainant was paid its costs of $50 out of the fund, so that it is no longer interested in the case.

Defendant Mary J. McKay was the divorced wife of the deceased, Robert G. McKay, and claims the fund by reason of the alleged payment by her of certain assessments during the life of deceased. She was awarded $500 by the decree of the lower court. Defendant William D. McKay claims the entire fund as holder of the last beneficiary certificate, and under tbe will of the deceased. He was not the son of the deceased, was not related to him in any way by blood, was never legally adopted, but claims to have been “a member of the family of deceased.” He filed a cross-appeal from the decision of the lower court, claiming the entire fund, instead of the $1,450 awarded him by the decree of the trial court. The remaining claimants, Lillie Bain, Annie McKay, and Margaret McDonald, who also appeal, are the three sisters of the deceased. They are his sole legal heirs, and were the holders of a prior certificate. They claim the fund as his legal heirs (being the only blood relatives of the deceased) and as holders of the prior certificate. They have consented in their answer and cross-bill that the widow of the deceased shall receive from the fund the repayment to her of moneys paid by her as assessments, and are satisfied with the allowance of $500 made to her by the court below, but they claim that the remainder of the fund belongs to them under the rules and regulations of the Ancient Order of United Workmen and by law as the legal heirs of deceased. The by-laws of the complainant provide:

“ Seo. 15. Each and every member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall in every instance be one or more members of the family of the member or some person or persons related to him by blood, or who shall be dependent upon him.”

William D. McKay was neither a relative by blood nor dependent upon Robert G. McKay. The ground of eligibility to the beneficiary fund, upon which, if any, he is entitled to it, is that he was a member of the family of the deceased. The certificate designating William D. McKay as beneficiary was executed April 27, 1904. Robert G. McKay and Mary J. McKay were married in 1867. In 1879 Mrs. McKay took William D. McKay from a foundling hospital, and brought him up, but he was never legally adopted. From 1879 to 1886 Robert and Mary McKay resided at Detroit, he a member of the police force, she keeping a small millinery store. In 1887 they moved to Jamestown, N. D. Here a separation occurred, Mrs. McKay returning to Benton Harbor, Mich., where she lived from 1887 to 1890 with the boy, William McKay. Robert McKay went west to Ellensburg, Wash. From 1890 to 1892 they lived together after a reconciliation at Ellensburg, Wash. From 1892 to 1896 they lived at Kirkland, across Lake Washington, near Seattle, where the boy attended school. From 1896 to 1900 Mary J. McKay and the boy William lived in Seattle; she doing dressmaking, he working as a stenographer, they going back to Kirkland frequently on Saturday nights, and staying until Monday morning. In 1901 both Robert G. and Mary J. McKay lived in a new house built by them at Kirkland. William was working in Seattle and living there, going now and then to Kirkland from Saturday night until Monday. In 1902 Robert G. and Mary J. McKay were divorced and separated, Robert going to a small place across the lake. William was married during this year, and for three months he and his wife boarded with Mary J. McKay. In November, 1903, William D. McKay moved with his wife into a house on Queen Ann Hill, Seattle. He testifies:

Q. Did your father or mother visit you there ?

tlA. Mother did for á short time after we moved there, and then she quit coming, and during all the time father came out. He made his home right with us'.

Q. Would he be constantly with you there on Queen Ann Hill ?

“A. Nearly so, Mr. Ryan. He had a room across the lake in a tumbledown brick building which he .took after the divorce, merely stayed there to protect himself for voting, so that he would be entitled to vote across the lake, but his home was practically with us. Always every Sunday he would come over for the first thing Sunday morning, go to church twice a day, stay over Sunday night, and quite frequently would not go back until Monday night or Tuesday morning. * * *

Q. Up to the time you became self-supporting, Me-Kay, Mrs. Mary McKay supported you, bought your clothes, sent you to school and educated you ?

“A. Yes, sir; up to the time I started to support myself. * * *

“Q. You testified that after your marriage you lived for some time with Mrs. McKay ?

“A. Yes.

“Q. Did you pay your board ?

“A. Yes, In fact, I more than paid it. At the time I left there was a grocery bill of about $19 that had come while I was there. I went up to Mr. Brooks, the storekeeper, and paid all of that before I left — every cent of it. •# # *

“Q. Who owns the home where you live ?

Mr. Douglas: Objected to as incompetent, irrelevant and immaterial.

“A. We own it. It was given to us by my wife’s mother.

Q. It was mortgaged for $1,700, was it not ?

“A. That was merely a blind mortgage to protect the money that she had put into it. She wanted us to have it for a home, and there was some dispute about it among the other.children, so she closed the deal in that manner.”

Ellen A. McKay, wife of William D. McKay, testified:

“ After we were married we lived with mother for some time, I mean Mr. McKay’s mother; that was for two or three months. Afterwards we went to housekeeping in September. Mr. Robert G. McKay lived with us then some little time, nine or ten months.

Q. After you left Kirkland, where did you move to ?

“A. To Anacortes. We lived there two or three months, and then went to live at Queen Ann Hill, Seattle, in our own home. We have lived there for two years. I recall when Robert G. McKay died. It was September 30, 1904.

‘ ‘ Q. Prior to his death and after you returned to Seattle and moved on Queen Ann Hill, did he make his home with you ?

“A. He spent his Sundays with us, and also two or three days during the week.

Q. He still kept his home across the lake, did he ?

“A. Yes, sir. He was always welcome at our house. *

* * When he would go back across the lake to his room across the lake, to his room after leaving our home, he usually took with him bread, cake, and pie that I made for him, that I haked myself. We attended church together, and went out in company with his mother and father. I looked after the care of his clothes. When he lived with us, I did his washing and mending, and after we moved here I always did his mendings. * * * For two or three months after our marriage we lived with Mr. and Mrs. McKay at Kirkland. Afterwards we kept house at Kirkland for nine or ten months. Then we lived at Anacortes two or three months, and then during the year 1903 or 1904 occupied our own home on Queen Ann Hill, Seattle, commencing about the first of November, 1903.

“Q. Well, from December 1, 1903, until the present time, you and your husband have occupied your own home on Queen Ann Hill ?

“A. Yes, sir.

“ Q. During all this time Mr. Robert G. McKay occupied his own home across the lake ?

“A. Yes, sir; since we have been in Seattle.

‘ ‘ Q. He always called that his home, and he voted there ?

“A. Yes, sir.

“Q. He voted there ?

“A. I don’t know where he voted.

“Q. Since the time you went to Anacortes, neither you nor your husband have lived with Mr. Robert G. McKay in his home, have you ?

“A. No, sir.

Q. Since you have been married, has your husband earned his own living ?

“A. Yes, sir.

Q. He has not been supported by R.. G. McKay at any time ?

“A. No, sir. * * * We were married in April, 1902, and lived directly after that with Mrs. McKay for two or three months. We paid half the ■ expenses, and she paid the other half. Then we went to live in Kirkland and went to housekeeping, and Mr. McKay lived with us there and paid half the expenses. Then we went to Anacortes, and from there to Queen Ann Hill. Mr. McKay still lived at Kirkland.

Q. He always lived there, did he ?

“A. Yes. He came to visit us occasionally on Queen Ann Hill two or three days a week. ”

Under the facts disclosed by this record, the defendant William D. McKay was not a member of the decedent’s family. The case is ruled by Supreme Lodge Order of Mutual Protection v. Dewey, 142 Mich. 666 (3 L. R. A. [N. S.] 334.)

As defendants Lillie Bain, Annie McKay, and Margaret McDonald, who are entitled to the fund, consent that the decree, so far as in favor of Mary J. McKay, may stand, the decree will be modified to provide that the balance of $1,450 shall be paid to said defendants Lillie, Annie, and Margaret, or their solicitors, and, as so modified, the decree is affirmed, with costs of both courts to said defendants against the defendant William D. McKay.

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


text:
    DECKER v. KLINGMAN.
    1. Brokers — Real Estate — Contract to Sell — Merger in Writing.
    In an action by a real estate broker to recover commissions on the sale of land, evidence examined, and held, that all prior negotiations regarding the contract of employment were merged in the written agreement between the parties containing an option.
    2. Same — Commissions—When Entitled.
    Where a real estate broker is employed to sell real estate within a certain time, and the time expires without his having made the sale, he is not entitled to his commission, though the sale is ultimately made by the landowner to a person introduced by the broker, there being no fraud or bad faith on the landowner’s part to prevent performance on the part of the broker.

      Error to Kent; Wolcott, J.
    Submitted June 6, 1907.
    (Docket No. 44.)
    Decided July 1, 1907.
    Assumpsit by Peter W. Decker and Fred R. Jean, co-partners as Decker & Jean, against Philip J. Klingman for commissions on the sale of real estate. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.

      Smedley & Corwin, for appellants.
    Taggart, Denison & Wilson, for appellee.

       As to performance by a real estate broker of his contract to find a purchaser, see note to Lunney v. Healey (Neb.), 44 L. R. A. 593.

   Blair, J.

Plaintiffs brought suit to recover commissions alleged to be due them for services as brokers in procuring a purchaser for certain real estate of defendant. Negotiations began in the spring of 1905.

‘ ‘ This Klingman property was not listed under contract. We had a description of the property, knew it was for sale, and had instructions from Klingman to sell it before the written option was taken.”

February 26, 1906, plaintiffs received a letter from defendant, in part, as follows:

“ Mrs. Klingman advised me yesterday that you had called at the house Saturday in regard to possibility of our disposing of our house, and, while I am very reluctant to bring this subject up with her, because it seems to be an unpleasant one, she gave it more consideration this time than at any time in the past. Now, if you are talking business, or can talk business, why, I think we could be willing to listen; but there is no use of talking about Exchange of property or anything of that kind, and if your party are thinking seriously of purchasing that property, why, let them make an offer. During our various talks you know what figure I would expect for the place.

“ Our position is this: Mrs. Klingman doesn’t want to sell, and I do. At the same time, I have very little to say in this matter. However, we intend doing one of two things, namely, if I don’t sell, in all probability I shall build a double house on the lot adjoining my present residence, as I have 120 feet of ground, and it is more than I want.

“ If anything is to come of this, better get down to business at once because if you don’t do business now that will end it.”

Plaintiff Jean testified:

‘ ‘ I went to Mrs. Klingman before that option was signed, and went to Mr. Klingman, but' he told. me that Mrs. Klingman didn’t want to sell, and there was no use talking unless I could get her to agree to sell. I had an oral agreement with Mr. Klingman then, March 5th. He told me that any time I could get Mrs. Klingman’s consent I could show the property and sell it. A week or so before that agreement was signed, I went to see Mrs. Klingman myself at Mr. Klingman’s suggestion, and followed it up by getting this signed on March 5th. Until that time I didn’t have any definite thing to go upon, because Mrs. Klingman had never consented. I couldn’t make that sale without her consent.”

On March 5th, the parties entered into the following contract:

“Grand Rapids, Mich., March 5, 1906.

“ In consideration of the sum of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, and to be considered as part of the purchase money, I hereby agree to sell the property located at 152 South College avenue, lot 120x132 ft. in the city of Grand Rapids, county of Kent and State of Michigan, to Decker & Jean or their assigns for the sum of sixteen thousand dollars. The terms of sale to be as follows: $16,000.00 on delivery of warranty deed, and we are to have possession of said house until October 1, 1906, and we are to pay Decker & Jean 2£ per cent, when sale is completed.

“ Sale to be closed on or before April 1, 1906.

“ I to furnish an abstract of the property, written up to date; also abstract of taxes, and to give a clear title.

[Signed] “Mrs. Josephine Klingman.

“P. Klingman.

“ I hereby agree to purchase the above described property from-, at the price and on the terms above mentioned, on or before-, 190 — , or forfeit the above payment of $-.

“ [Signed]-.”

On the back of said paper is the following:

“I, P. Klingman, have signed the option with the understanding that, if Mrs. P. J. Klingman will not sign, that signature is null and void.

“P. J. Klingman.

“Decker & Jean, per Jean.”

Plaintiffs were endeavoring to sell the property to Mr. Tuthill, whose partner in business, Mr. Baldwin, the owner of the adjoining property, was very anxious that he should purchase, and, to that end, was willing and desired to purchase a portion of the land adjacent to his premises. Plaintiffs were notified prior to the 1st of April that they must make the sale on or before April 1st, as provided in the written agreement. After the making of the written agreement, defendant agreed orally to accept $14,000 net for the property. On March 27th, plaintiffs received the following- letter from defendant:

“ Beg to acknowledge receipt of your favor of the 27th. As regards making sale of property, would state, I would be greatly pleased if you make the sale exactly on lines your option calls for and within the space of time called for in option, and, to use your own words, I hereby notify you that if you don’t sell the property before the expiration of the option that we will consider- the option as null and void, in accordance with date on same, and if I then desire to sell the property, shall either make a new deal with you or dispose of it myself. As for paying you any commission after date of option expires, would state that might be a question of law, which you might have to go through to collect anything I might think isn’t due you. I believe that after April 1st you aren’t entitled to anything, no matter who I sell the property to, and I will state very clearly the following facts, namely, that we shall not sell the property to your customer. I did think that I might concede something to you, whether we sold your customer or not, but if you take such a decided stand as you have in your letter, I question whether you are entitled to anything, as you apparently may go on the ‘ whole hog or none ’ plan.

“I would suggest that you advise me of any develop-merits as regards progress Mr. Decker is making, as you have but a few days left to exercise your option.

“ Yours truly,

“P. J. Klingman.”

Plaintiff Jean testified:

“After I got this letter of the 27th, I approached both Baldwin and Tuthill again in regard to buying the property and got the same response, except that Mr. Tuthill said that the deal was all off; he wouldn’t have anything to do with it; and so did Mr. Baldwin, except that he wanted me to see Mr. Klingman and see if he could buy 25 feet or more off from the lot, and let Klingman keep the balance, to see if Klingman would make him a price on that 25 or 50 or 60 feet. He didn’t care how much. I saw Mr. Klingman in regard to it. He said he wouldn’t sell Mr. Baldwin any of it. If he didn’t sell it all, he wouldn’t sell any of it.”

Plaintiffs were unable to sell the property for $14,000 net during the period prescribed, and defendant, a few days after the expiration thereof, sold the property to Mr. Baldwin for $15,500. Prior to the purchase by Mr. Baldwin, it was agreed between him and Mr. Tuthill that Mr. Tuthill should take the house and 99£ feet of land, pay $8,500, and assume a mortgage of $4,500, and Mr. Baldwin should take the remaining 20 feet of land and pay $2,500. Mr. Tuthill, who was called as a witness by plaintiffs, testified:

“When I, talked with Mr. Jean shortly before the 1st of April, he said that Mr. Klingman wouldn’t sell for $14,000, and I told him I wouldn’t pay any more. I then definitely and finally abandoned all negotiations for that property. After that I looked through several houses and had practically decided to buy the Welch property. We had agreed on all the terms incident to the deal, and I should have undoubtedly closed it up if the matter had not finally come up in another form through Mr. Baldwin. Mr. Baldwin went with me to look through the Welch house, and I think on the same day after going through that house we went through the Klingman house. * * * I am not able to give you the date when I went to Klingman’s house with Mr. Baldwin. I should imagine it was after the 1st of April, somewhere about the 3d or 4th, I couldn’t state positively. I made no memorandum of the date at all. ”

At the close of plaintiffs’ testimony, the court, on motion of defendant’s counsel, directed a verdict for defendant. To review the judgment entered upon the verdict, plaintiffs prosecute this writ of error.

We think that the court correctly held that all prior negotiations were merged in the written agreement; that the rights of the parties must be determined thereby, except, perhaps, as to the modification of the price to be paid for the property; that plaintiffs failed to perform the contract; that the evidence negatived any inference of fraud or bad faith on the part of defendant to prevent performance by plaintiffs; and that after April 1, 1906, defendant was at liberty to sell the property to whomsoever he chose, without liability to plaintiffs.

The judgment is affirmed.

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


author: Montgomery, J.

text:
    LEHIGH v. STANDARD TIE CO.
    1. Sales — Action for Price — Inspection —Evidence—Sufficiency.
    In an action £or the price of railroad ties sold and delivered, evidence examined, and held, sufficient to go to the jury on the issue whether a claimed inspection was such as the contract of sale provided.
    2. Evidence — Experts—Competency.
    A witness who states he has shipped railroad ties to a certain market and seen the reports of the inspection sent back from there may state what an inspection according to the rules of that market would show with regard to a certain lot of ties with which he is familiar.
    3. Same — Sales — Action for Price — Quantum Meruit — Evidence — Sufficiency.
    In an action for the price of goods sold and delivered, the contract price is some evidence of their value, and is sufficient on that point to support a recovery on the quantum meruit.
    Error to Mackinac; Shepherd, J.
    Submitted June 7, 1907.
    (Docket No. 51.)
    Decided July 1, 1907.
    Assumpsit by Mark Lehigh and James Gr. McClintock, copartners as Lehigh & McClintock, against the Standard Tie Company for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Henry Hoffman, for appellant.

      James McNamara & Son, for appellees.
   Montgomery, J.

Plaintiffs contracted with defendant to furnish 8,000 to 10,000 cedar ties and 12,000 to 15,000 cedar posts, to be delivered on rail of vessel at St. Martin’s Bay, Mackinac county, on or before June 1, 1905. The contract also provided that for ties made from green timber plaintiffs should receive 32 cents,.and for standard ties made from dry timber 30 cents. It also provided that 10 per cent, of the ties might be No. 2’s at 12 cents each on the rail of the vessel. The declaration was special on the contract, averring performance, and also on the common counts. It was shown and averred in the declaration that, after the making of this contract, it was agreed between the parties that in place of an inspection to take place at St. Martin’s Bay as the ties were loaded, which was at first contemplated, plaintiffs should accept Chicago inspection. The language in which this agreement was made is as follows:

“We will accept Chicago inspection on our ties instead of having Mr. St. James inspect them here.”

The ties were shipped to Chicago. No inspector was agreed upon between the parties; but the defendant, in making a sale of the ties to the Chicago & Northwestern Railroad Company, agreed to accept inspection of the company’s inspector, Mr. Clair. His inspection of the ties showed a total of 5,906 No. 1 ties and 6,522 rejects. The plaintiffs offered testimony tending to show that the ties which were loaded and shipped to the defendant would run 22 to 23 per cent. No. 2’s, and the balance, with the exception of possibly 2 per cent, rejects, would be No. l’s. The circuit judge charged the jury that the plaintiffs had the burden of proof, and that the parties had agreed to abide by an inspection, and any mistake in judgment which the inspector made they must abide by, and that, if the inspector used his judgment fairly or if he used his judgment without any intention to favor one side or the other, his inspection must govern; and, if the jury should find that the inspector, did not use his best judgment, then they should arrive at the fair value the best way they could.

It is the contention of the defendant that there was no evidence tending to impeach the inspection, and that the verdict should have been directed for the defendant. We think the charge of the court sufficiently favorable to the defendant. This is not a case in which a particular inspector has been agreed upon by the parties. Plaintiffs were given no choice in this respect. The sole effect of the modification of the original contract was to provide that Chicago inspection should govern the parties. That we take to mean that the rule which controlled the Chicago inspection as to what ties should be considered No. %’s and what No. l’s would control; and this implied that an honest inspection of the ties should be made by such rules, and that such inspection should be made with reference to the contract between these parties. If there were no fact or circumstance to cast doubt upon the testimony of the inspector, or to raise a fair question as to whether the inspection represents accurately the quality of these ties according to the rules of the Chicago inspection, there would be no question for the jury. But we think there was enough to raise a fair question for the jury. It is a significant fact that although the parties contracted with reference to No. % ties and recognized such a grade, and although the testimony of the plaintiffs tend to show that there were at least %2 to 23 per cent, of No. 2 ties in these shipments, the inspection made at Chicago shows a total inspection of over 13,000 ties and not one No. 2 tie found. It also appears that in the inspection of the two cargoes of the Hurd a distinction was made between culls and rejected ties. The first cargo is shown by the inspection to have had 13,110 No. 1 cedar ties, 1,115 culls, and 830 rejected. The second cargo had 8,101 cedar ties, 2,823 culls, and 3,410 rejected. It would seem that everything below No. 1 was treated either as cull or rejected, and in the inspection of the ties shipped by the steamer Pine Lake no distinction was noted between cull and rejected. In the inspection of the Hurd there was a distinction noted, but just what was meant by the distinction is not clear. In neither inspection were there any No. %’s accounted for. We think this circumstance, in connection with the testimony of the plaintiffs’ witnesses, was sufficient to raise a fair question for the jury as to whether the inspection had been made in accordance with the contract.

Objection was made to certain questions put to the witnesses as to what these ties would show according to the Chicago inspection. These questions were put to the plaintiff Lehigh. The questions and answers were as follows:

Q. Now, what would you say as to the inspection of this cedar that you had there, that you tallied on the vessel, that was gotten out by you and McClintock ?

“Mr. Hoffman: I object to the question as incompetent in the way the question is put. (Objection overruled, and an exception duly taken.)

A. The way I have always seen cedar inspected, etc., it would run about 22 or 28 per cent, to seconch.

” Q. Now would that be Chicago inspection at an honest count — an honest inspection in Chicago ?

l&Mr. Hoffman: I object to that as incompetent, for the reason that it is asking this witness for a count in Chicago that he has .not testified he knows anything about that at all. (Objection overruled and an exception duly taken to such ruling.)

A. Why, yes, those would be of good merchantable ties.

Q. As I understand your testimony that you gave yesterday, is that you have had experience in Chicago inspections ?

“A. Not directly, in Chicago. I have sent ties to Chicago market, and seen the-report after it came back, and I know how them ties went.

Q. As I understand you, you say that you would consider the inspection that you proposed for these ties would be the same in Chicago ?

Mr. Hoffman: That is objected to. It is not what he proposes.”

We think this testimony was sufficient to show some v knowledge on the part of this witness of the Chicago inspection. The precise objection that the witness had not shown himself competent to testify as to the Chicago inspection was not in fact made in counsel’s objection. The point appears to have been that, as the witness was not present when the count was made in Chicago, he could not impeach that count by showing that it omitted the large number of No. 2’s wholly from the inspection.

It was also complained that the circuit judge in his charge left the jury to find the value of the ties under the quantum meruit, and it is said there is no evidence of value. The price fixed by the contract was some evidence of value.

We think no prejudicial error was committed, and the judgment will be affirmed.

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


author: Ostrander, J.

text:
    VAN CLEVE v. RADFORD.
    1. Fraud — Misrepresentations—Recovery.
    A buyer of corporate stock cannot recover of the seller the money paid therefor on the ground of misrepresentations as to the earnings of the corporation where he knew precisely what the representation meant, how the conclusion therein stated was arrived at, and it did not mean, and was not, as to him, a representation that the earnings of the corporation were what he alleges was stated to him.

      2. Saving Questions for Review — Variance.
    An objection on the ground of variance between the declaration and proof must be made in the trial court.
    3. Appeal and Error — Reversal—Harmless Error.
    A judgment will not be reversed, whatever the assignments of error, if a correct result has been reached upon undisputed facts and the applicable law.
    4. Same — Variance—Amendment—Limitations.
    Where a verdict should have been directed for defendant as requested on the ground of variance, and the declaration could not have been amended so as to set up the cause of action proved, because of the statute of limitations, a judgment for defendant will not be reversed.
    Error to Wayne; Rohnert, J.
    Submitted April 10, 1907.
    (Docket No. 49.)
    Decided July 1, 1907.
    Case by John W. Van Cleve against George W. Rad-ford, James W. Fales, Alexander McVittie, Frank N. Clark, and Anson Waring for false representations on the sale of corporate stock. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Fred A. Baker (Albert B. Hall, of counsel), for appellant.

      8. P. Bradley, for appellee Radford.

      Maybury, Lucking, Emmons & Helfman, for appellees McVittie and Fales.
   Ostrander, J.

Upon the second count of the declaration, which is framed upon the theory of affirmance by plaintiff of whatever contract he made (the first count was abandoned at the trial), there was a verdict and judgment for defendants. The averments are, in substance: That on May 15, 1892, defendants sold plaintiff 600 shares of the capital stock of a corporation known as the “ Keeley Institute,” and received from him as purchase price $15,000, being the par value of the stock; that certificates for said shares of stock were afterwards issued and delivered to plaintiff. The representations averred to have been made and relied upon are: That the capital stock of said corporation was $250,000, all paid in, the holders thereof subject to no further assessments or calls thereon; that defendants were owners and holders of the stock, their title thereto good, and they lawfully entitled to sell and transfer the same; and that the earnings of said corporation had been and were so great that there was a net profit annually of 12 per cent, on the $250,000 of capital stock. The falsity of each of these representations is averred as follows:

“Whereas, in truth and in fact the authorized capital /stock of said corporation was only $50,000, and of which only $30,000 had been paid in, and of which authorized and partly paid up capital stock the said 600 shares were not a part, and each and every share of said 600 shares of alleged stock was wholly unpaid, and they, the said defendants,-were not the owners and holders of said 600 shares of stock, and they had no title to the same, * * * and the earnings of said corporation had been and were so small that they were no more than sufficient to pay the expenses of said corporation, leaving no net profits whatever.”

It is averred that, if the representations made had been true, the stock would have been worth $15,000; that by reason of the falsity of said representations it was wholly worthless. The facts are that dofendants had organized a corporation with a capital stock of $50,000. Articles of association were executed December 2, 1891, and filed with the clerk of Wayne county December 9, 1891. The purposes of the corporation, stated in the articles, were to establish a health institution in the State of Michigan for the treatment of patients suffering from opium, liquor, and tobacco habits or neurasthenia, according to the methods and treatment given to such patients by the “ Leslie E. Keeley Company,” and Dr. Leslie E. Keeley, of Dwight, 111., by the administration and use of said Dr. Leslie E. Keeley’s so-called chloride of gold remedies, and also for the sale of said remedies. For the right to use these remedies in Michigan, defendants, or some of them, had paid the institution at Dwight $30,000. Opening in December, 1891, at Northville, Mich., the institute had so succeeded that, with four patients in December, 1891, in March, 1892, it had 38 patients. Real estate had been bought which cost $2,500, And furniture had been added. Five thousand dollars had been borrowed of a Detroit bank. The average duration of treatment for a patient was four weeks, the cost of remedies administered about $15, the charge for treatment $25 a week. Plaintiff was born in Ypsilanti, living there until he was 15 years of age. His business experience had been varied and extensive. He went to Dwight, Ill., in November, 1891, leaving there December 5, 1891, after taking the treatment. He saw the large number of patients there, and heard there were 600 of them in line. He afterwards corresponded with the Dwight institution about securing the right to use the remedies in the State of Delaware. From Dwight, he went to Ypsilanti. He attended the lecture of Dr. Keeley at the Y. M. C. A, in Detroit, December 26th or 27th, and attended the formal opening of the Northville Institute, Dr. Keeley being present, the next day. He returned to New York early in 1892, came back in March, and introduced a friend to the Northville institution for treatment in April. April 13th or 14th, he and defendant Radford had some talk about engaging in the business in Canada. About April 21st, plaintiff came to Detroit, saw Radford, and was told by him that it was proposed to start other institutes in Michigan, and that, if plaintiff would raise $50,000 in stock in Ypsilanti, they would move the institute to Ypsilanti. On April 25th, Radford wrote and signed and gave to plaintiff, at his request, -a note addressed to plaintiff, reading

“In answer to your inquiry, will say that the Keeley Institute at Northville is now paying 12 per cent, on $250,000.”

Plaintiff wanted this statement to show to friends in Ypsilanti, to which place he was himself urging that the institution be removed. Before arriving at the conclusion stated in this writing, plaintiff and Radford figured over the profits of the institution on the basis of 38 patients, reaching the result of an income of $3,800 a month, expenses $1,300 a month, profit $2,500 a month, or $30,000 a year. The arrangement between plaintiff and defendants was, in substance, incorporated in a written memorandum, reading:

“Mrs. Swift (whose property in Ypsilanti was purchased for, the institution) sells her place to Co. on contract — $25,000 down, bal. $15,000 on or before one and two years, 6 per cent. (to be paid from first receipts of this institute). The present stockholders sell to your syndicate one-fifth interest in the Keeley Institute (to be removed to Ypsilanti) for $50,000 cash. Your syndicate loans to Co. $12,500 (one-half of down payment to Mrs. Swift) and takes the Co.’s note at 6 per cent. The present stockholders loan the same amount to Co. on same terms, for same purpose. These notes to. be payable pro rata out of first earnings of this Institute. Your syndicate and present stockholders to loan in equal portions sufficient to put Swift property in shape for business, the amount for that purpose being estimated not to exceed $5,000. The capital of the Co. to be increased to $250,000, or $500,000, as your syndicate may desire.”

This arrangement was not in all respects performed, but pursuant thereto plaintiff secured subscriptions, including his own, to stock, and the institute was removed to Ypsilanti. The money proposed to be raised by plaintiff by sales of stock was to be paid to defendants, and not to the company. Plaintiff was to become manager of the company. He did become manager. On May 14, 1892, amended articles of association were executed, by the terms of which the capital stock was increased to 10,000 shares, or $250,000, held, as therein stated, by the defendants, and the place of business was changed to Ypsilanti. Whatever stock in the institution came to plaintiff or was issued in his name was dated June 15, 1892, and purported to be issued by a company having a capital stock of $250,00D. The facts stated were all of them known to plaintiff when he subscribed for his stock and when he paid whatever sum he did pay as purchase money. Plaintiff not only failed to prove, but he disproved, the contract, and each of the representations, set out in the declaration. He was forced to, and does, rely upon the representation, not alleged, of the earnings of the institution at Northville, which representation his testimony, he claims, tends to prove was false. This upon the theory that some of the expenses of the institution were fraudulently concealed. Whatever the writing and the statement contained therein may have meant to those to whom plaintiff exhibited it and whom he induced to engage in the enterprise (Coombs v. Radford, 110 Mich. 192; Glover v. Radford, 120 Mich. 542), and whether it was a true or a false statement of fact, it is made entirely clear that he knew precisely what it meant, how the conclusion stated therein was arrived at, and that it did not mean, and was not as to him a representation, that the “earnings of said corporation had been and were so great that there was a net profit annually of 12 per cent, on the $250,000 of capital stock.” The declaration gives no intimation that a recovery will be asked for on the sole ground that a representation was made to plaintiff that upon the basis of 38 patients, as the business was being conducted at North-ville, a stated profit was being made, which representation was false, because the expenses figured and stated were not all of the expenses. The variance between declaration and proof is clear. Is it fatal ? The rule is that the objection of variance must be made in the trial court. It does not appear from the record that the question was raised except by a request to charge preferred by counsel for defendants:

“Plaintiff had full knowledge concerning the capital stock, and therefore there was no misrepresentation about it, and I further charge you that no such misrepresentation as is alleged concerning the earnings has been proved in this case. Therefore plaintiff cannot recover. ”

The judgment is for defendants, and the question is whether for any error pointed out it should be reversed. It should not be reversed, whatever the allegations of error, if a correct result has been reached upon undisputed facts and the applicable law. Robinson v. Charles Wright & Co., 94 Mich. 283, 285. The request preferred should have been given, unless plaintiff by amendment could set up the cause of action which he had proved. This he could not do, because it is a new and distinct cause of action which arose in 1892, which at the trial in 1905 was barred by the statute of limitations.

The judgment is affirmed.

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