author: Per Curiam.

text:
    FITZPATRICK v. WEAVER.
    Municipal Corporations— Ordinances — Validity — Licenses— Intoxicating Liquors.
    An ordinance adopted by a city of the fourth class, prescribing a license for keeping a saloon, “under which designation shall be included all resorts or places where intoxicating liquors are sold or drank as a beverage,” applies only to saloons where intoxicating liquors are sold, and therefore conflicts with section 3107, 1 Comp. Laws, subd. 14.
    Certiorari to Hillsdale; Chester, J.
    Submitted January 22, 1907.
    (Calendar No. 22,038.)
    Decided March 5, 1907.
    Mandamus by Merton Fitzpatrick, city attorney, to compel Charles M. Weaver, justice of the peace, to issue a warrant against Arthur Triechman for a violation of an ordinance. There was an order granting the writ, and respondent brings certiorari.
    Reversed.

      Merton Fitzpatrick (Frankhauser & Cornell, of counsel), in pro. per.

      Fellows & Chandler, for respondent.
   Per Curiam.

The city of Hillsdale is a city of the fourth class, having authority (section 3107, subd. 14, 1 Comp. Laws):

“ To regulate and license all taverns and houses of public entertainment, all saloons, restaurants and eating houses, and to regulate and prescribe the location of saloons; but this shall not be construed as authorizing the licensing of the sale of intoxicating liquors.”

Under the claim that the foregoing section gave authority therefor, the common council of the said city of Hills-dale, on the 26th of February, 1906, adopted an ordinance the material provisions of which are as follows:

“Section 1. It shall be unlawful for any person to keep any saloon, under which designation shall be included all resorts or places where intoxicating liquors are sold or drank as a beverage, within the city of Hillsdale, without first paying a license fee for the privilege of conducting the same of $300 per annum. * * *
“ Sec. 2. The city treasurer, on payment to him of the license fee herein provided, shall give to the person so paying a receipt for the amount paid, * * * which receipt shall constitute a license for the keeping of a saloon, as described in section 1 of this ordinance.”

Respondent, a justice of the peace of the said city of Hills-dale, upon the ground that said ordinance was invalid, refused to issue a warrant upon a complaint charging that one Arthur Triechman “kept a saloon within the corporate limits of said city of Hillsdale, in which saloon intoxicating liquors were kept for sale, sold, and drank as a beverage, without first having paid to the treasurer of said city of Hillsdale the annual license fee of $300.” These proceedings were then instituted in the circuit court, and a mandamus was therein granted, ordering said respondent to issue said warrant.

Respondent asks us to reverse that order, and the question for our decision is this: Is said ordinance valid ? If the ordinance applies only to saloons where intoxicating liquors are sold, then it is an attempt to license the sale of intoxicating liquors contrary to the law above quoted, and is invalid, under our decision of Dewar v. People, 40 Mich. 401. See, also, the recent case of Kenaston v. Riker, 146 Mich. 163. Does the ordinance apply only to saloons where intoxicating liquors are sold ? On the part of the relator it is contended that it does not; that it applies as well to saloons where intoxicating liquors are not sold, as to those where they are sold. We cannot indorse this contention. Whatever construction we might place upon section 1 of the ordinance, if standing alone, that section, when construed, as it should be, in connection with section 2, applies only to saloons of the kind described, viz., those where intoxicating liquors are sold or drank as a beverage.

Relator was not entitled to a mandamus, and the order of the circuit court should be reversed.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    SUPERINTENDENTS OF POOR OF WAYNE COUNTY v. BOARD OF COUNTY AUDITORS OF WAYNE COUNTY.
    1. Counties — Buildings — Taxes— Right to Impose — Constitutional Limit — Power oe Supervisors.
    A hospital voluntarily erected by a county for the care of its insane is a county building, though the State reimburses the county for their care as at all other State asylums, and section 9 of article 10 of the Constitution prohibits the expenditure of more than $1,000 in any one year for the purpose of erecting such a building unless authorized by a vote of the electors.
    2. Costs — Public Questions.
    Costs are not awarded in cases between public officers determining questions of public interest.
    Certiorari to Wayne; Hosmer, J.
    Submitted January 22, 1907.
    (Calendar No. 22,074.)
    Decided March 5, 1907.
    Mandamus by the superintendents of the poor of Wayne county to compel the board of county auditors of Wayne county to audit and allow an account'for the erection of a public building. There was an order denying the writ, and relators bring certiorari.
    Affirmed.

      Fred A. Baker, for relators.

      Ormond F. Hunt, for respondents.
   Montgomery, J.

This is certiorari to George S. Hosmer, Wayne circuit judge, for the purpose of reviewing and reversing an order made by him denying a mandamus. The facts stated in the petition for the mandamus of the Wayne circuit court are, in brief, that petitioners claim that an additional building is necessary to be erected upon Wayne county poor farm for the purpose of taking care of insane patients; that, among the items passed upon by the Wayne county board of supervisors at its last annual session, is the following: “ New building, $75,000.” It further appears from the petition that on or about the 14th day of December, 1906, the superintendents of the poor applied to the county auditors to learn whether they would pass upon and allow bills for the employment of an architect to make plans and specifications for a $75,000 building to be erected at the Wayne county poor farm; that they were informed by the auditors that they would not do so until the legal questions involved had been settled; and that thereafter the superintendents of the poor applied to the Wayne circuit judge by petition for a mandamus.

The answer of the auditors asserts that, under the Constitution of this State, the board of supervisors cannot borrow or raise by tax more than $1,000 for the purpose of constructing or repairing public buildings in any one year, unless authorized by a majority of the electors voting thereon. There is no claim upon the part of relators that the electors of Wayne county have ever voted a tax for the purpose of constructing this proposed $75,000 building.

The proceeding is unusual, in that the application for mandamus precedes the formal presentation to the board of auditors of an account calling for action. Both petitioners and respondents apparently desire that the legal question raised shall be determined, and we proceed to consider it. It must not be understood, however, that we imply by our action that the writ of mandamus would be justified, even if the respondents were mistaken in their view'of the law.

The meritorious question is whether a sum in excess of $1,000 can be raised by tax in any one year for the purpose of constructing an insane asylum in the county of Wayne without a vote of the electors. Section 9, art. 10, of the Constitution, reads:

‘ ‘ The board of supervisors of any county may borrow or raise by tax one thousand dollars for constructing or repairing public buildings, highways or bridges; but no greater sum shall be borrowed or raised by tax for such purpose in any one year, unless authorized by a majority of the electors of such county voting thereon.”

The relators contend that under the present statutes the insane asylum in Wayne county is really a State institution, and that for this reason the constitutional provision does not apply. The contention, stated in the language of counsel, is as follows:

“ It is true the legislature has never passed an act expressly requiring or authorizing the county of Wayne to erect buildings for the care of the insane of that county, but it has passed acts making the Wayne county insane asylum a State institution, and placing the burden of the maintenance of the insane there a charge on the State precisely the same as at all other State insane asylums, with this qualification that Wayne county is expected to provide the necessary buildings, a burden which the county has voluntarily assumed for many years, and which it desires to bear now and in the future. In pursuance of the desires and obligations of the county, its board of supervisors made this appropriation. It is not a case where the State is forcing the county to levy a tax. The question therefore resolves itself into a question of the power of the county; the State legislature having impliedly, if not expressly, given its approval.”

We are agreed that this provision of the Constitution does apply. It is only in a most restricted sense that the Wayne county asylum is a State institution. It is true the State reimburses Wayne county for the care of inmates, but the property in the building is in the county. The State has not imposed the burden upon the county of building this additional building. The undertaking is purely voluntary on the part of the county. The provision quoted prohibits the board from raising more than $1,000 in any one year for any public building upon its own initiative, and without a vote of the electors. This is none the less a county building, and still more clearly it is none the less a public building, because the State indirectly makes use of it when constructed.

The circuit judge correctly held that relator was not entitled to the writ. His judgment is affirmed. As the question involved is of public interest,no costs are awarded.

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


author: Ostrander, J.

text:
    KLEINERT v. KNOOP.
    1. Mechanics’ Liens — Enforcement — Intervention — Bill— Sufficiency — Parties—Amendment.
    A petition by interveners in a mechanics’ lien suit filed under section 10719, 3 Comp. Laws, is not fatally defective because describing petitioners as “F. Bros.,” but maybe amended so as to set out the names of the persons composing the firm.
    2. Same — Affidavit of Claim — Sufficiency.
    An affidavit for a mechanics’ lien, conforming substantially with the form given in the statute, except that it does not state that the material was furnished in pursuance of a contract with the principal contractor or any other person, but which d.oes state that the material was furnished for improving the premises and that the owner knew that the material furnished the contractor was to be supplied by claimant, is sufficient.
    Appeal from Saginaw; Gage (William G.), J.
    Submitted January 22, 1907.
    (Docket No. 72.)

    Decided March 5, 1907.
    Bill by William Kleinert against Charles Knoop, Henry F. Mertz, and Minnie Mertz to enforce a mechanic’s lien. Furstenberg Bros, petitioned for leave to intervene. From an order denying the petition, petitioners appeal.
    Reversed.

      William E. Crane, for petitioners.

      Beach, O’Keefe & Bockwith, for defendants Mertz.
   Ostrander, J.

In proceedings undertaken to foreclose a mechanic’s lien, appellants, claiming to be lienors, and not having been made parties, asked for leave to intervene, setting out with their application a copy of the affidavit for lien and attached statement of account. Their application was denied, and from the order made they have appealed.

The objections come from the owners of the property, defendants, who claim that appellants’ petition and their affidavit for lien filed with the register of deeds are both defective. The defects in the affidavit which are pointed out are (1) that it cannot be determined therefrom what persons compose the firm of Furstenberg Bros.; (2) it does not set out that the principal contractor, Knoop, had a contract with Mertz and his wife, the owners, for building, altering, or improving the property; (3) it does not set out that appellants furnished material with the understanding or knowledge that it would be, or under any contract that it should be, furnished for the house of Mertz. It is claimed the petition for leave to intervene is defective, because it does not state the names of the members of the firm of Furstenberg Bros.

.Considering the objection to the petition, it may be assumed that, upon obtaining leave so to do, appellants would have set out, upon the record, the full, individual names of the persons composing the firm. The statute provision is, 3 Comp. Laws, § 10719:

“ And all persons holding like liens or having filed notice of intention to claim a lien, * * * may make themselves parties thereto on motion to the court, and notice to complainant, and may file their intervening or cross-bills or answers. * * * ”

, Petitioners describe themselves as “ Furstenberg Bros., of the city of Saginaw, Mich.,” and connect themselves by averments with the contractor and the owners of the property. The objection is technical, and, if appellants have otherwise the right to intervene, will not be allowed to defeat the right. They may be permitted now to amend. The proceeding in which the petition is filed is one to enforce, not one'to create, a lien. Daschke v. Schellenberg, 125 Mich. 216.

Whether appellants have properly asserted a lien depends upon whether there has been a compliance with the statute. In all essentials, the statute must be followed. 3 Comp. Laws, § 10736; Smalley v. Terra-Cotta Co., 113 Mich. 141. A lien is given (3 Comp. Laws, § 10710) to any person furnishing services or materials in pursuance of any contract, express or implied, written or unwritten, existing between himself as contractor and the owner of the real estate to be improved, and to every person who, as a materialman, furnishes material to such original or principal contractor, or any subcontractor, in carrying forward or completing any such contract. To avail himself of the benefits of the statute, the materialman must make and file, himself or by his agent or attorney, a verified statement of the demand due him, over and above all legal set-offs, the time when such materials were furnished, and for whom, a correct description of the property to be charged with the lien, and the name of the owner, if known. A form of affidavit is given in the statute. The affidavit in question conforms precisely with the statute, and also conforms substantially with the form referred to, except that it does not state that the material was furnished in pursuance of a contract with the principal contractor or any other person. In place of this, the affidavit does set out that the material was furnished for altering and improving the premises, and that the person named as owner was informed and advised “that the lumber and material furnished to the contractor, Charles Knoop, was to be supplied by the firm of Furstenberg Bros.” It also states the sum due “over and above all legal set-offs or other demands that might be held by the contractor.” The list of items attached is headed, “Charles Knqpp to Furstenberg Bros., Dr.” The affidavit purports to have been made by Fred Furstenberg, described as “ of the firm of Furstenberg Bros.,” a resident of the city of Saginaw, Mich., “for and in behalf of said firm of Furstenberg Bros., dealers in building material.” There is no omission of essentials. It will be assumed that where a copartnership is claimant, the name of the firm affords the necessary information to the owner of the property.

The decree is reversed, and an order will be entered, permitting appellants to intervene in the cause. The record will be remanded for further proceedings.

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


text:
    PEOPLE v. SMITH.
    1. Hawkers and Peddlers — License—Validity of. Ordinance —Discrimination.
    An ordinance licensing hawkers and peddlers is not invalid because it excepts from its provisions persons selling vegetables, fish, meat, or farm products, and bakers delivering bread and pastry to their customers.
    2. Same— Commerce — Interstate Commerce.
    The agent of a foreign corporation, admitted to do business in Michigan, who goes from house to house selling tea, coffee, and spices by sample, a part of the orders for which he fills from a stock kept at his place of business, and the remainder of which he fills from goods ordered from his principal without the State for that purpose, is not engaged in interstate commerce.
    Error to Ionia; Davis, J.
    Submitted January 23, 1907.
    (Docket No. 128.)
    Decided March 5, 1907.
    Isaac J. Smith was convicted of peddling, without a license, and sentenced to pay a fine of $5.00 and costs or in default thereof to 10 days’ imprisonment in the county jail.
    Affirmed.
    Respondent was convicted of a violation of an ordinance of the city of Ionia, which requires hawkers and peddlers to procure and to pay for a license, and has been sentenced to pay a fine of $5 and $17.40 costs, and, in default of such payment, to be committed to the county jail until the fine is paid, but not for a period longer than 10 days. Respondent having brought the case to this court on exceptions before sentence, it was dismissed. People v. Smith, 146 Mich. 193. Thereafter sentence was pronounced, and the case is before us on error.

      The facts are not in dispute. The ordinance of the city of Ionia relative to licenses is known as “ Ordinance No. 38,” section 5 of which provides that peddlers or persons going about the city on foot, or with a wagon or vehicle, and selling or offering for sale either by sample or otherwise any goods, wares, supplies, or property shall pay a weekly license fee of $5, and that “this section shall not apply to any person or persons selling, i. e., vegetables, fish, meat, or farm produce, nor to bakers delivering bread and pastry to their customers at their dwellings in said city.” For violation of this ordinance, a penalty of a fine, or fine and imprisonment, may be, upon conviction, imposed. Respondent styles himself, and is known as, agent of the Grand Union Tea Company, a New Jersey corporation, having its principal office in the city of New York. The advertising matter circulated by it sets out that it has branch stores in the principal cities of the United States and that:
    “We bring our teas and coffees direct from the plantation to the consumer, thus saving all middle profits. This enables us to sell cheaper than other retailers. Most large houses spend fortunes in advertising. We advertise by giving presents with our goods, thus sharing with our customers the profit of our business.”
    It has a department manager residing in Detroit, Mich., whose territory embraces Michigan, Illinois, Wisconsin, and the northwestern States through to the coast. It has a branch store at Grand Rapids, Mich., where orders from agents are filled, and where it sells its goods at retail. It has 11 other stores in Michigan where it sells its goods at retail. It has also a branch store at Toledo, in the State of Ohio. The territory is divided among the branch stores and their managers; the manager at Toledo having 14 towns in Michigan where agents work, as well as parts of Ohio. Respondent resides at Ionia, and is engaged in selling the goods of this concern in that city. His authority, so far as appears, was derived from a letter, dated May 4, 1905, written to him by the department manager, in the following terms:
    “ If you would like Ionia you can have it. The other party is too slow. I do not care to hold that point open for him any longer. You can fill in the manager’s inquiry blank, and I will forward it as soon as received.”
    When he first began doing business at Ionia for the company, he, by direction of the company, sent his orders for goods to the Grand Rapids store, where they were filled and the goods shipped to him from Grand Rapids. Later he was instructed by the department manager at Detroit to send his orders to the Toledo store. Up to that time, the company had paid respondent’s license fees, but, having received a notice that the license fee was to be increased from $5 a week to $10 a week, and to avoid paying what was claimed to be an excessive license fee, and assuming that if the orders were sent to Toledo the business carried on by respondent, or by the company through respondent, would be interstate commerce, the direction to respondent was given. The department manager testified that:
    “ It is not possible for us to conduct business in a town of this character and size and pay a license fee of $10 a week without doing it at a loss.”
    Thereafter respondent received his goods from Toledo, and it was while he was so receiving goods that he was arrested and convicted. Respondent does not carry on a store or sell goods for others than the Grand Union Tea Company. He travels about with a horse and wagon furnished by this company, solicits orders from consumers of the goods, and delivers goods previously ordered. He is paid by way of a commission upon sales actually made. In taking orders, he makes a memorandum of the orders on cards furnished him by the company. The card in evidence reads as follows:

      Form 84. 280 No.
    Property of Grand Union Tea Company, Corner Pearl and Water Streets, Brooklyn Borough, New York.
    Mrs. Green.
    No........-...........-........-.................-.......
    Dr. Cts. Tickets.
    When
    deliver.
    9-21 $ Green Tea...................-80 25
    9-23 1 Coffee Gr.....-.............- 30
    1 B. Powder................... 50
    81 05
    He sells teas, coffees, extracts, baking powder, spices, starches, and soaps. When an order is taken, no memorandum or paper or writing is given to the person from whom the order is taken and no money is collected until the goods are delivered. When a number of orders have been taken, the cards showing the orders are sent to the branch house at Toledo, and, in the course of time, goods corresponding with the orders, addressed “ Grand Union Tea Company, Ionia, Michigan,” are, at the expense of the company, shipped to respondent. The cards are returned to him. The goods are put up in packages corresponding with the order cards, packed in boxes, but no particular package is put up for any particular customer, no package marked with the name of the customer, and no account is made or kept with any person other than respondent.
    “ Q. Those different packages — it is not known whom those different packages belong to until you make your delivery to your customer ?
    “_á. No, sir; I attend to that myself. They are too busy down there.
    “ Q. You do that, you do the division, sorting out, and delivering when it comes here ?

      “ 'A. Yes, sir, to my customers.
    “ Q. When you get these boxes, where do you take them to make this assortment and division ?

      “A. To my store.

      “ Q. There you unpack the boxes and lay the contents out on your counters in suitable shape ?

      “A. Yes, sir;, put them on the shelves.
    ‘ ‘ Q. After you have got them all laid out on the shelves, you take up your orders and see whom you have got' to make deliveries to, do you ?
    “ A. Yes, sir.
    “ Q. Then if a person has ordered tea or coffee, you take out tea and coffee, and put it in shape to be delivered to that person ?

      “A. Yes,sir.”
    No goods refused by customers are ever returned to the company. If the customer refuses to take goods, subsequent orders for like goods are filled by the agent, if he has the goods on hand, and if goods ordered by him are not thus disposed of they are used in his own family. Respondent keeps and uses two telephones in his h ouse, pays for them, receives orders for goods by telephone, writes them out on the cards and disposes of the cards as in other cases. With the sale made, tickets are given, entitling the purchaser to premiums or gifts, and these tickets are redeemed by the respondent from goods kept in stock at his house, which goods are furnished him by the company. From time to time reports of sales are made. Goods shipped from Toledo are consigned to the “Grand Union Tea Company, Ionia, Michigan, I. J. Smith, agent.” The supplies for the Toledo house are received from New York headquarters.
    Respondent says his conviction was unlawful and should be set aside for two reasons:
    (1) Because the ordinance in terms discriminates between classes of peddlers.

      (2) Because respondent was at the time of his arrest and conviction engaged in interstate commerce.

      W. W. Wicker and George E. Nichols, for appellant.

      Alfred B. Locke, City Attorney, for the people.
   Ostrander, J.

(after stating the facts). For reasons given in the opinion above referred to, the specific findings of fact and law made by the court below are not considered. The finding that respondent is guilty, as charged, is treated as a general verdict.

That respondent was a peddler seems not to be disputed. His first contention, which is that because the ordinance in terms excepts persons selling vegetables, fish, meat, or farm produce, and bakers who deliver bread and pastry to customers, from its provisions, it is therefore invalid, is ruled against him by People v. Sawyer, 106 Mich. 428. See, also, People v. Baker, 115 Mich. 199.

. His second contention raises a more serious question. If respondent is actually, and we may add, for reasons given later on, in good faith, engaged in interstate commerce, it is not to be doubted that the license fee demanded is in effect a tax upon such business, which the municipality had no right to lay. Robbins v. Taxing District, 120 U. S. 489; Brennan v. City of Titusville, 153 U. S. 289; People v. Bunker, 128 Mich. 160. The single question is, Was he engaged in interstate commerce? Usually, this is a question of law to be answered by the court. But it may occur that it should be answered accordingly as inferences are drawn from undisputed facts warranting more than one inference, or from disputed facts. Good faith is a conclusion drawn from facts, and the bona tides of commercial transactions has, in several instances, entered into the determination of questions of like nature. Austin v. Tennessee, 179 U. S. 343; Cook v. Marshall County, 196 U. S. 261; Kimmell v. State, 104 Tenn. 184. From the facts proven or admitted upon the trial, this court may and does assume the existence of a further fact not proved at the trial, which is that the Grand Union Tea Company has. upon its voluntary application been admitted to do business in this State upon the footing of corporations organized under the laws of the State. Otherwise, it would appear that this corporation was conducting a general, retail, mercantile business at 12 points within the State without having complied with the laws of the State. The statute (3 Comp. Laws, § 8574) imposes a tax upon corporations, domestic and foreign, doing such a business in the State, and avoids all contracts made by them until the tax is paid. The act is construed to be not applicable in cases where foreign corporations do business in the State merely by selling goods through itinerant agents, and delivering commodities manufactured outside of the State. Coit & Co. v. Sutton, 102 Mich. 327 (25 L. R. A. 819); M. I. Wilcox Cordage & Supply Co. v. Mosher, 114 Mich. 64. See, also, Moline Plow Co. v. Wilkinson, 105 Mich. 57. It is evident that respondent is not concerned, in fact, about the payment of the license fee or whether the goods which he sells come to him from a general stock kept within or without the State. He has a continuing, local, retail trade. The business which he carries on is like interstate commerce in this: That the goods for which he takes orders are sent from outside the State, and are the property of a corporation organized in another State. It is unlike interstate commerce, in that the business is essentially a local retail business, the packages are not such, as are usually made up and handled in the ordinary course of actual commerce, nor made up for any particular person, and the owner of the goods has been admitted to the State, upon the footing of domestic corporations, and is actually carrying on the same business at various points in the State, in some places out of its stores, in others by peddlers. The method employed in sending goods to respondent is an attempt to evade a local regulation affecting alike the agents of all corporations admitted to do business in' the State, and not a good-faith engagement in interstate commerce. The respondent is really doing the same business as that considered in City of Muskegon v. Zeeryp, 134 Mich. 181, in which case an agent of this company was the respondent. See, also, City of Alma v. Clow, 146 Mich. 443. It is clear, too, that he sells some goods, and distributes premiums, out of stock on hand. The business so carried on would be in any case within the principle announced in Machine Co. v. Gage, 100 U. S. 676; Emert v. Missouri, 156 U. S. 296.

We might rest our decision, affirming the conviction, upon the facts last stated. We are not required to do so, since we are of opinion that respondent is not engaged at all in interstate commerce, but is engaged in peddling goods for a corporation, which has, for the purposes of this case, the status of a domestic corporation.

The conviction is affirmed.

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


author: Hooker, J.

text:
    VERCADE v. VERCADE.
    Divorce — Grounds — Extreme Cruelty — Desertion— Sufficiency.
    Desertion for a less period than the statutory two years cannot be ground for divorce on the claim that the particular act of desertion constitutes extreme cruelty.
    Appeal from Ottawa; Padgham, J.
    Submitted Jan-24, 1907.
    (Docket No. 104.)
    Decided March 5, 1907.
    Bill by John Vercade against Maggie Vercade for a divorce. Defendant filed an answer in the nature of a cross-bill asking for a divorce. From a decree for complainant, and dismissing the cross-bill, defendant appeals.
    Reversed as to complainant, and bill dismissed.

      George A. Farr, for complainant.

      Walter I. Lillie, for defendant.
   Hooker, J.

The complainant, a man 65 years of age, married the defendant, aged 35. After living with him 23 days, she left him, claiming to be afraid of him. At the time she left he was afflicted with neuralgia, and has since had a stroke of paralysis. She took with her some $60 in money and a certificate of deposit for $700, which he had confided to her keeping. Complainant’s bill asks divorce on the ground of extreme cruelty. The parties were married on December 12, 1905, separated on January 5, 1906, and the bill was sworn to on February 16, 1906. Both desertion and extreme cruelty are mads grounds for divorce in the same section of our statute.

The inference that mere desertion, continued less than two years, may justify a divorce on the ground of extreme cruelty, is precluded by the requirement that the desertion must be “ utter,” and continue for two years, to be a ground for divorce. Calling desertion by another name will not help the matter. In our opinion, the evidence does not make out a case of extreme cruelty. We find nothing in the testimony warranting the claim that the defendant’s conduct while living with the complainant was such as to subvert the family relation by rendering association with her intolerable. On the contrary, the complainant appears to have desired its continuance; but she chose to leave him and go to her father. He was willing that she should leave for a visit, and wanted her to do so. She determined that she would leave, and not return.

The decree granting a divorce to complainant is reversed, and affirmed as regards the dismissal of the cross-bill. It appearing that the complainant is entitled to the certificate of deposit, defendant will be denied costs, unless said certificate shall be delivered to complainant within 30 days, in which event she shall recover costs of both courts. No alimony will be allowed, beyond the $60 referred to, which she may retain.

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


text:
    WYANDOTTE PORTLAND CEMENT CO. v. BRUNER.
    1. Sales — Action for Price — Breach of Warranty — Burden of Proof.
    In an action for the price of goods sold under an express warranty, the buyer having received and retained the goods without offer to return them or disaffirm the contract, the burden of proving a breach of the warranty is upon defendant, and plaintiff is not obliged to show that the goods were equal to the warranty.
    2. Same — Damages—Evidence.
    On the issue of the amount of damages caused defendant by a breach of warranty of quality of certain Portland cement, evidence examined, and held, sufficient to go to the jury on the amount of damages sustained.
    3. Evidence — Best Evidence — Dictated Letters — Person Dictating.
    Where the testimony of a clerk is offered to prove the sending of letters dictated to her by a member of a firm, and by her written out as dictated, addressed, and mailed, an objection on the ground that her testimony is hearsay and that the person dictating is the proper one by whom to prove the facts, is improperly sustained.
    Error to Van Burén; Des Voignes, J.
    Submitted January 25, 1907.
    (Docket No. 110.)
    Decided March 5, 1907.
    Assumpsit by the Wyandotte Portland Cement Company against George L. Bruner, Jerome C. Warner, R. E. Nicholson, and W. V. Dow, copartners as Bruner, Warner & Company, for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court,- and defendants bring error.
    Reversed.
    Plaintiff declared upon the common counts in assumpsit. The bill of particulars filed was:

      April 5, to 200 barrels of cement.................. $292 00
    April 8, to 200 barrels of cement.................. 292 00
    $584 00
    Defendants pleaded the general issue, and gave notice that they would show that the goods sold were represented and warranted to be first class, equal to any on the market, and suitable for the purpose of making cement blocks; that the said cement was not first class, nor equal to any on the market, nor of the quality used in or adapted to making cement blocks, whereby damage resulted which defendants would recoup. Plaintiff manufactures cement. Defendants make cement blocks for building purposes. An agent of plaintiff sold to defendants two car loads of cement at a price, and the cement was delivered to and received by defendants. Bills rendered by plaintiff were not paid, and this suit followed. A verdict for plaintiff for the amount of its demand was rendered by direction of the court, and judgment followed. A motion for a new trial was denied.

      Anderson & Warner, for appellants.

      Lincoln H. Titus, for appellee.
   Ostrander, J.

(after stating the facts). The evidence on. the part of defendants tended to prove that upon the sale of the cement it was warranted to be first class, “A No. 1,” suitable for making cement blocks, and equal to any on the market. Plaintiff proved the sale, delivery, and value of the property. Indeed, these facts are virtually admitted by the notice given with the plea of defendants. The principal contention on the part of defendants’ counsel is that plaintiff, in order to recover, was bound to prove that the goods delivered were equal to the alleged warranty. The distinction between this case and Pungs v. Brake-Beam Co., 128 Mich. 318; Allen v. McKibbin, 5 Mich. 454, and other cases cited and relied upon by counsel for defendants, is that here plaintiff has delivered the goods sold — fully performed the contract — and defendants, asserting, after receiving and using the goods, a breach of warranty, seek to recoup damages for such breach. Simons v. Paper Co., 77 Mich. 185, was a suit for damages for the refusal of defendant to receive property tendered in performance of a contract, which property it was averred in the declaration was of the quality contracted to be delivered. The question for the jury in that case was whether plaintiff tendered property which, under the contract, defendant ought to have received and paid for, and it was held to be error to instruct the jury that the burden was on defendant to show that the rags tendered and refused were of the contract quality. Plainly, the case at bar is not such a case. Plaintiff, pursuant to a contract, sold and delivered to defendants goods which they received, and still have, or have disposed of. There was no offer to return, and no disaffirmance. Title to the goods passed to defendants. In such cases, the agreed price may be recovered under the common counts in assumpsit, and the burden is upon defendants to prove failure of consideration, whether arising out of breach of warranty or otherwise.. The distinction between a sale and a delivery and acceptance of personal property, with and without warranty, is, so far as is important here, stated in the opinion in Talbot Paving Co. v. Gorman, 103 Mich. 403, 405 (27 L. R. A. 96). So, in Childs v. O’Donnell, 84 Mich. 533, 538, is pointed out the distinction between sales with warranty of quality and sales with the right reserved to return or rescind if goods are not satisfactory. See, also, 2 Mechem on Sales, § 1844. In the case at bar, defendants were not denied the right to prove the alleged warranty and their damages on. account of the breach thereof. Upon the evidence so produced, the learned circuit judge gave his opinion, upon the motion for a new trial, as follows:

“We are impelled to say that the extent of the damages, if any, had not been shown with reasonable certainty; that from the evidence it was not susceptible of reasonably accurate computation.”

Evidence tended to show that some 1,600 blocks were made from this cement which were not marketable; that a proper block was worth 19 cents; that 800of these were sold for 15 cents,- and the remainder for $25. It further appears that these blocks were colored by introducing into the mixture of sand, cement, and water some substance not chemically described. Direct evidence was not produced to prove that the coloring matter so used was not responsible for the appearance and condition of the blocks, although the evidence is that it was the same as theretofore and thereafter used, satisfactorily, with other cement. There was evidence of the statements of the agent of plaintiff, sent in response to complaint made to inspect the blocks and make a test of the cement, that the trouble with the cement was that it contained too much alkali. There is no evidence tending to show that this representative of the company raised the objection that the coloring matter used was the cause of the trouble. We are of opinion that there was some evidence for the jury of the amount of damages sustained, and that it was error to direct a verdict for plaintiff.

We need not do more than refer to the errors assigned upon a ruling excluding three letters offered by defendants. The record does not disclose whether the originals or copies were produced in court. They appear to be letters written by defendants to plaintiff about the cement in question, and appear to have been answered. When, if at all, the answers to them were received in evidence, does not appear. The proof made by a clerk was that the letters were dictated to her by a member of the firm, were written out by her as dictated, were signed by her with the firm name, put in envelopes properly addressed, and mailed to plaintiff. The objection made was that the member of the firm who dictated the letters was the proper person by whom to prove these facts. The ruling was that the testimony of the clerk was hearsay and incompetent. As a ruling upon the objection which was made, it was wrong.

The judgment is reversed, and a new trial granted.

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


author: Hooker, J..

text:
    FLEMING v. FIRE ASSOCIATION OF PHILADELPHIA.
    1. Shipping — Registry—Enrollment — License — Charaoter op Vessel.
    A vessel of 66 tons burthen, enrolled and licensed in the office of the collector of the Port of Detroit, is a vessel of the United States, irrespective of the use to which she is put.
    2. Same — Mortgage—Validity—Record.
    A mortgage on a vessel of the United States, recorded in the office of the collector of the Port of Detroit, in which office she is registered and enrolled, as required by section 4192, U. S. Rev. Stat., is valid, notwithstanding she is in use as a ferry and the mortgage is not filed in the office of the city clerk of Detroit, as required by the State statute.
    i
    3. Same — Status op Vessel.
    The fact that the owner of a vessel may be using her in violation of the State law, and be liable to a penalty therefor, does not affect her status as a vessel of the United States.
    4. Same.
    A vessel of the United States does not lose her status as such while in the Detroit river.
    Error to Wayne; Murphy, J.
    Submitted January 25, 1907.
    (Docket No. 111.)
    Decided March 5, 1907.

      Garnishment proceedings by William J. Fleming against the Fire Association of Philadelphia, impleaded with John Stevenson, Sr., as garnishee of J. Byron Sloane and John Stevenson, Jr. There was judgment for defendant Stevenson, Sr., and plaintiff brings error.
    Affirmed.

      Van Zile & Brownson, for appellant.

      William P. Lane and A. B. Hall, for appellee.
   Hooker, J..

The steamer Hattie was a small propeller of 66 tons burthen. John Stevenson, Jr., owned a three-quarters interest in her, which he had insured with the Fire Association of Philadelphia, for $2,000. She was destroyed by fire on January 14, 1906. This controversy arises between two claimants of the fund due upon the insurance' policy. The claim of the plaintiff, Fleming, arose as follows: Stevenson, Jr., became accommodation maker of two promissory notes, given by Sloane to Fleming, upon which the latter began an action in the Wayne circuit court, against Stevenson, Jr., and Sloane, by declaration filed January 20, 1906. Service was made upon Stevenson, Jr., only. This resulted in a judgment for plaintiff on May 31, 1906.

On February 7, 1906, a writ of garnishment issued out of the Wayne circuit, at the suit of Fleming, against the Fire Association, as garnishee of Stevenson, Jr. John Stevenson, Sr., the other claimant, was a creditor of John Stevenson, Jr., holding a mortgage upon the latter’s interest in the vessel, dated February 17, 1904, as security for the sum of $2,000, at that time loaned to John Stevenson, Jr. He also held an assignment of the claim for insurance, given January 23, 1906, notice of which was received by the Fire Association at its office in Philadelphia on January 26th. Upon the trial of the garnishment case the claim of John Stevenson, Sr., was sustained, and a verdict was directed in his favor against the Fire Association. Fleming has removed the cause to this court.

This mortgage was recorded on December 18, 1905, in the office of the collector of the Port of Detroit, under section 4192, U. S. Rev. Stat., and it was not filed in the city clerk’s office in the city of Detroit, where plaintiff’s counsel claim that the law of this State required it to be filed; and it is contended that it was therefore ineffective as a defense to the garnishment, which is said to have precedence. The Federal statute cited provides:

“No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector of the customs where such vessel is registered or enrolled. ”

The statute of this State providing for the filing of chattel mortgages (3 Comp. Laws, §§ 9523 to 9526, inclusive) is familiar, and need not be quoted.

The case must turn upon the question whether the recording of the mortgage was sufficient to protect Stevenson, Sr.’s, interest. U. S. Rev. Stat., § 4131, passed in 1792, provides:

“Vessels registered pursuant to law, and no others, except such as shall be duly qualified, according to law, for carrying on the coasting trade and fisheries, or one o.f them, shall be deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels.”

Sections 4311 and 4318, U. S. Rev. Stat., respectively, are as follows:

“Sec. 4311. Vessels of twenty tons and upwards, enrolled in pursuance of this title, and having a license in force, or vessels of less than twenty tons, which, although not enrolled, have a license in force, as required by this title, and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries.
“ Sec. 4318. Any vessel of the United States, navigating the waters on the northern, northeastern and northwestern frontiers, otherwise than by sea, shall be enrolled and licensed in such form as other vessels; such enrollment and license shall authorize any such vessel to be employed either in the coasting or foreign trade on such frontiers, and no certificate of registry shall be required for vessels so employed. Such vessels shall be, in every other respect, liable to the regulations and penalties relating to registered and licensed vessels.”

Counsel for the plaintiff state their claim thus:

“ The steamer Hattie was enrolled and licensed in the office of the collector of customs in the Port of Detroit, and the mortgage was recorded in the same office. The collector’s office of the Port of Detroit was the only place the mortgage was recorded. It was not recorded in the office of the city clerk of the city of Detroit. The mortgage, then, is valid against all creditors of John Stevenson, Jr., by such recording, if the steamer Hattie was a ‘vessel of the United States.’ Was she such a vessel, and was she entitled to the benefits and privileges appertaining to ships or ‘vessels of the United States?

They maintain that the answer to their question must depend upon the business that the vessel was engaged in, and that, inasmuch as she had abandoned for two years the coasting trade for which she had previously been licensed by the Federal government, and had carried on the business of. a ferry during that time, she was subject to the laws of the State, inasmuch as the State and the council of Detroit had authority to license and regulate ferries.

In Chilvers v. People, 11 Mich. 43, this court held that a ferry plying between Detroit and Windsor was engaged in foreign commerce, but that the State had, notwithstanding, the right to withhold a grant or franchise or license to conduct or operate such boat as a ferry, and that one so operating her without authority was liable to the statutory penalty, although the boat used was a vessel of the United States, licensed to do a coasting trade.

The fact seems to be that the vessel was engaged in running from Detroit (where she made two stops) to Wolf, a port on the Canadian side of the river. The court thought that this was a coasting trade. Counsel contend that it was not, but that it was a ferry. It makes no difference which it may be called.

In the case of Robinson v. Rice, 3 Mich. 237, the court held that the Federal statute [U. S. Rev. Stat., § 4192], which provided that “no * * •* mortgage * * * of any vessel of the United States, shall be valid against any person, other than the mortgagor, * * * unless such * * * mortgage * * * be recorded in the office of the collector of the customs where such vessel is registered or enrolled,” superseded the State law requiring the filing of mortgages. The status of the Hattie as a vessel of the United States depends upon registry, license, and enrollment, under the statutes cited, and not upon the uses that she may be put to or the accident of idleness. Being a vessel of the United States, her status is fixed, and interested persons may depend upon the record of mortgages in the collector’s office. Any other rule would compel both such record and filing under the State law to insure safety to the mortgagee. The fact that her owner may be using her in violation of a State law, and liable to a penalty therefor, does not affect the question before us.

She was a vessel of the United States, and section 4192, U. S. Rev. Stat., applied to her, to the exclusion of the State statute; and we need not trouble ourselves with the question whether the Port of Detroit is or is not upon the high seas, as it can hardly be that a vessel of the United States loses her status as such while in the Detroit river.

The undisputed facts justify the action of the trial court, and his judgment is affirmed.

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


author: Moore, J.

text:
    JOBERT v. WAGNER.
    1. Fraud — Presumption—Burden of Proof.
    Fraud cannot be presumed, but'must be proved, and the burden of proof is upon the one who alleges it.
    2. Mortgages— Foreclosure — Setting Aside — Fraud — Evidence.
    On a bill to restore property sold under statutory foreclosure of a mortgage, evidence examined, and held, insufficient to show that complainant’s intestate did not make the mortgage, or that he paid the debt it secured.
    Appeal from Wayne; Frazer, J.
    Submitted January 25, 1907.
    (Docket No. 115.)
    Decided March 5, 1907.
    Bill" by Anna Jobert, administratrix of the estate of Karl Toelle, deceased, against John Wagner and Edward Radtke to set aside a mortgage foreclosure, and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Galloway & Graham, for complainant.

      Brennan, Donnelly & Van De Mark, for defendant Wagner.
   Moore, J.

August 26,1884, a mortgage sale was made of certain real estate in the city of Detroit to the defendant John Wagner. The foreclosure was by newspaper advertisement, and its regularity is not questioned. The mortgage foreclosed purported to have been made by Karl Toelle and his wife. It bore date September 21, 1877, and was recorded the next day. The defendant Edward Radtke is the tenant of defendant John Wagner. The complainant is the daughter of Karl Toelle. She commenced this proceeding, claiming (1) that her father never executed the mortgage, and neither he nor his heirs knew anything of it till discovered by complainant some few months before commencing her suit; (2) that the mortgagee, as discovered, had been repaid the money loaned by her on such mortgage before the foreclosure thereof; and (3) that minors (as two of deceased’s heirs were) cannot be divested of their interest in real estate through a statutory foreclosure. The prayer for relief is for a restoration of the property and an accounting with defendant Wagner of the rents and profits of the property. The defendants answered. The case was heard in open court. A decree was rendered dismissing the bill of Complaint. The case is brought here by appeal.

A number of interesting questions are discussed by counsel, which we think it will be unnecessary for us to discuss. It is elementary that fraud cannot be presumed, but must ,be proved, and the burden of proof is upon the one who alleges it. See Miller v. Finley, 26 Mich. 249; Robert v. Morrin, 27 Mich. 306; Loomis v. Smith, 37 Mich. 595; State Bank of Fenton v. Whittle, 48 Mich. 1; Brown v. Dean, 52 Mich. 267; Krolik. v. Root, 63 Mich. 562; Bly v. Brady, 113 Mich. 176, and the many cases there cited. A careful reading of the record does not satisfy us that Mr. Toelle did not make the mortgage which was foreclosed, nor does it satisfy us the mortgage was afterwards paid. The mortgage foreclosure was regular. 3 Comp. Laws, § 11133 et seq.

The decree is affirmed, with costs.

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


author: Blair, J.

text:
    PHISCATOR v. RICE.
    Malicious Prosecution — Advice of Counsel — Evidence—Sufficiency.
    In an action for malicious prosecution of a complaint for larceny, evidence examined, and held, to present a question for the jury whether defendant made a full and fair statement of the case to counsel before making the complaint.
    Error to Berrien; Coolidge, J.
    Submitted February 13, 1907.
    (Docket No. 133.)
    Decided March 5, 1907.
    Case by George Phiscator against Dwight O. Rice' for malicious prosecution. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      James O'Hara, for appellant.

      N. A. Hamilton (Gore & Harvey, of counsel), for appellee.
   Blair, J.

This is an action for malicious prosecution of criminal proceedings based upon a charge of obtaining money under false pretenses. Criminal proceedings were instituted by the defendant, Rice, against the plaintiff, Phiscator, charging him, in substance, with having obtained $63.73 of the defendant’s money by means of the false representation and pretense that certain bags of clover seed delivered to the defendant, Rice, on December 15, 1904, were of the same quality as a sample of clover seed theretofore exhibited to the defendant, Rice, by the said plaintiff, Phiscator. The criminal proceedings having terminated by the entry of a nolle prosequi in the circuit court, and Phiscator having been discharged, he, thereupon, brought this suit. At the close of the proofs of the parties, the circuit judge directed a verdict in favor of the defendant upon the ground:

“ That the defendant made a frank, fair, and full statement of all the facts within his knowledge to the prosecuting attorney and to Mr. Hamilton, his private attorney, and that he relied on their advice. Their advice was that a crime had been committed, upon his statement. Now, under the laws of this State, in fact, of all the States, where defendant makes or any person makes a fair and full statement of the facts which he knows to the prosecuting attorney and the prosecuting attorney advises him that there is a criminal cause, and the man relies in good faith upon the statement of the prosecuting attorney, then, gentlemen, he is not liable in an action for malicious prosecution. And in this case, I do not find any evidence to contradict the statement of Mr. Rice upon this question. ”

Plaintiff denying that a frank, fair, and full statement was made to the prosecuting attorney and Mr. Hamilton, and denying that there was no evidence to contradict the statement of Mr. Rice, but insisting that there was such testimony and that the case should have been submitted to the jury, has brought the case to this court for review upon writ of error.

The principal question for determination in the case is whether the facts were so undisputed, as held by the judge who tried the case, as to make the question of reliance in good faith upon the advice of counsel a matter of law for the court instead of a question of fact for the jury. In determining this question, it is only necessary to consider whether the testimony compels the conclusion that the defendant Rice shipped to the firm of. Dickinson & Company, in Chicago, and received back again from that firm, the same clover seed which he had received from the plaintiff, Phiscator. If the evidence is undisputed that defendant shipped the identical clover seed which he received from plaintiff, and that the same seed was returned to him, then we are of the opinion that the instruction of the trial judge was correct. If, however, there was evidence from which a jury would be authorized to find that the bags of clover seed produced in court by defendant contained different seed from that received from plaintiff, then, manifestly, the question should have been submitted to the-jury.

The defendant gave evidence tending to show that some days prior to the delivery of the seed, the plaintiff, Phiscator, came to the store of defendant and his brother and exhibited a sample of clover seed, which, upon examination, proved to be clear, good seed with no foreign substances or foul seed contained in it; that after examining the seed, defendant agreed with plaintiff to purchase his clover seed, if like the sample, for the price of $10.50 per 100 pounds; that later on (and as shown by a witness for the plaintiff), on the 15th of December, the plaintiff brought four bags of clover seed to defendant’s store in pretended compliance with the agreement; that defendant untied t|ie bags, examined the seed at the top of three of the bags, and later on, but prior to shipment, examined the seed at the top of the fourth bag and found such seed at the top of each of the four bags to be good, merchantable seed; that thereupon defendant paid to plaintiff the full price agreed upon for the seed; that, later on, and some time in January, 1905, defendant shipped the seed to Albert Dickinson & Company, of Chicago, with whom they were in the habit of dealing; that on January 13, defendant received a letter from Dickinson & Company as follows:

“ Shipment 4 bags clover in car No. 7,104 has arrived, but seed contains such a quantity of buckthorn that thought best to make bid before sending returns. Can use the four bags at $5 per 100, track Chicago. Kindly advise promptly, etc.”

In answer to this letter, defendant sent the following:

' Please return four sacks clover seed. We bought this for good quality and paid $10.50 for it. We can use this lot to retail out here and not lose any money.”

In accordance with defendant’s direction, the four bags were returned and the seed examined by defendant, who testified that it was filled with buckthorn; that there was a great deal of sand in it; that the top of each sack was substantially like the sample; that there was more buck-thorn in the middle and that from one-quarter to one-third of the seed in the bottom of the sacks was buckthorn; that defendant stated these facts to the prosecuting attorney and Mr. Hamilton, assuring them that the bags returned containing the foul seed were the identical bags and seed which he had received from plaintiff and shipped to Dickinson & Company, of Chicago. These bags, numbered 1, 2, 3, and 4, were tested with a clover seed tester by a witness for defendant in the presence of the jury.

“ In bag No. 1 he found near the top a fair, merchantable quality, containing a few grains of buckthorn only. Near the bottom of No. 1, there was a large percentage of buckthorn. About the center of No. 1, the quality was about midway between the other two samples. It contains a large quantity of buckthorn. In bag No. 2 the top test showed the seed to be about the same as the top test in No. 1. The bottom test showed more buckthorn than a similar test of No. 1, and was, as stated by witness, ‘ lousy with buckthorn.’ In bag No. 3, from which about 40 pounds had leaked out, the test showed the top to be similar to middle of bag No. 1; the test at the bottom showed that it was a shade better than at the top. In bag No. 4, the test showed buckthorn at the top, also at the bottom. The bottom was just a shade cleaner than the top. There was a large quantity at the top, and all through it.”

The plaintiff gave evidence tending to show: That the seed which he delivered to defendant was threshed by one Christian Fletcher and his son, Will Fletcher. That he took the bags as they came from the machine, and stored them at his house just as received.

“ I neither put any seed into any of the bags nor took any out of any of the bags. They were in the same condition when taken upstairs by me as when they left the machine. I did not handle the contents of the bags at all.”

That he delivered these bags of seed in the same condition as when received from the threshers, excepting the small sample which he had taken from one of the bags to exhibit to defendant. That there were six of these bags, of which he brought down five bags, and delivered them to defendant. That there was only one full bag of the five delivered, the others varied in fullness — one being only two-thirds or three-quarters full. That one of the five sacks was emptied into a bag furnished by defendant, but the other .sacks were not emptied, the seed remaining in the bags in which it was delivered. The threshers who threshed the clover seed testified that in their opinion the seed was good seed. That it was threshed with a Monitor Junior Birdsall Clover Huller, which was a good machine and did its work well:

‘ ‘ If anybody is acquainted with the Birdsall huller they know it does its work well, and when it is done the seed is in the bag ready for the market, and we never have any trouble with our seed going to market.
Q. And the foul stuff is out?
“A. Yes, sir.
Q. And there is only one sack at a time ?
“A. Yes, sir.
“ Q. When you take one off you put on another ?
“A. Yes, sir.
Q. So there is no reason to be any difference in the top or the bottom of the sack or the middle ?
“A. None whatever.”

That at the time of the examination, they examined some of the seed returned from Chicago and claimed to be the seed sold by Phiscator to Rice, and that that seed did not look like the seed they had threshed for Phiscator; Christian Fletcher testifying that “ Phiscator’s seed was mostly blue black seed, and this was white seed mostly. Yery few kernels of blue black seed in it, that is the difference.” Will Fletcher testified that there was more foul stuff in it than in the seed they hulled for Phiscator, and that it was a different color seed:

Q. How many different colors of clover seed have you knowledge of ?
“ A. Colors, you understand, a very little variation, you would say a change in color. * * * Three different colors, that is when you talk about colors.
Q. What are these three colors that are distinct ?
“A. Yellow, a light yellow; a deep blue; a kind of light blue. If you have ever been to the seed markets, you have investigated yourself, as near as I can explain.”

Another witness testified that he helped Phiscator carry in the seed at Rice Bros.’ store, and that there were five bags of the seed instead of four, as testified to by defendant. The plaintiff testified that, having received a letter calling his attention to the return of the seed, and its not complying with the sample, he went to Rice Bros.’ store and was shown samples taken from different portions of the bags by Nelson Rice, a brother of defendant, which had buckthorn in it, and that he informed the said Nelson Rice that the seed exhibited to him was not his seed.

While the testimony on the' part of plaintiff may not be very convincing, we cannot say, as a matter of law, that it presented no issue as to the identity of the seed. This seed had been in the possession of the defendant and his brother from the 15th of December until some time in January. The threshers’ testimony indicated that the bags were filled by the machine, and, unless the bags were tampered with by Phiscator after they came from the machine, it is highly improbable that four of the bags should have had clean, merchantable seed on top and a large percentage of buckthorn, or foul seed, upon the bottom. In the language of defendant’s brief:

“ It was in such shape as to impress every person that it would not be so placed fortuitously; that it was there by the design and act of some one.”

Furthermore, according to the test , made in the presence of the jury by defendant’s witness, Heffron, in one of the bags “there was a large quantity (of buckthorn) at the top and all through it.” Phiscator having testified positively that he had not tampered with the seed or changed it in any way from what it was when the bags were delivered to him, and the threshers having testified that clover seed was of different colors, and that the seed produced by the defendant was of a different color from the seed which they had threshed for Phiscator, and, in their opinion, was not his seed, and the test made by the expert in the presence of the jury disagreeing with the result of the test made by defendant after the return of the seed and being inconsistent therewith, we think it should have been left to the jury to determine whether the seed produced by the defendant in court was the same seed which plaintiff had delivered to defendant on the 15th of December, 1904. It is clear that if the jury should find that this was not the seed delivered by plaintiff, such finding might be based upon the conclusion that the defendant had himself changed the seed, a conclusion which would negative defendant’s claim of a frank, full, and fair statement of the case to counsel as well as a claim of probable cause. As we are of the opinion that a question of fact was presented for the jury, it becomes unnecessary to examine the authorities cited by counsel or to consider other questions which will probably not arise upon another trial.

The judgment is reversed, and a new trial granted.

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


text:
    TARSNEY v. BOARD OF EDUCATION OF CITY OF DETROIT.

    1. Statutes — Subjects and Titles — Detroit Corporation Counsel.
    Act No. 389, Local Acts 1895, entitled “ An act to provide for a law department for the city of Detroit,”" when construed as imposing upon the corporation counsel the duty of representing the board of education of the city, is not unconstitutional as embracing matter broader than its title, when it is borne in mind that the school ¡district is coextensive with the city limits, that several city officers are ex officio members of the board, and that the mayor of the city has power to veto the proceedings of the board.
    2. Municipal Corporations — Detroit Charter — Officers— Corporation Counsel — Duty to Represent Board of Education.
    Act No. 389, Local Acts 1895, establishing a law department for the city of Detroit, and requiring the corporation counsel to furnish every department, officer, and board such advice or legal assistance, as counsel or attorney “in or out of court” as may be required, is broad enough to apply to a case in court in which the corporation counsel represented the board of education at its request, though the board was not a party to the suit, and could not be made a party against its will.
    3. Same — Board of Education — Power to Contract.
    The board of education of Detroit had not such an interest in the outcome of the suits by certain railroad companies against the auditor general to establish the invalidity of Act No 173, Pub. Acts 1901, providing for the taxation of the property of railroads at the same rate borne by other property, as empowered it to employ counsel to represent it in court in such suits, the interest of the inhabitants of the school district of the city not being other than as taxpayers of the city.
    Certiorari to Wayne; Murphy, Brooke, and Hosmer, JJ.
    Submitted February 19, 1907.
    (Calendar No. 21,998.)
    Decided March 5, 1907.

      Mandamus by Timothy E. Tarsney to compel the board of education of the city of Detroit to audit a claim for services rendered. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Timothy E. Tarsney, in pro. per.

      H. E. Spalding, for respondent.

       Rehearing denied July 15, 1907.

   Montgomery, J.

This is certiorari to review the action of the circuit court of Wayne county in refusing to grant a mandamus. The statement of the facts and the conclusions of law which are embodied in the opinion of Judge Brooke, concurred in by Judges Murphy and Hosmer, are so satisfactory that we adopt the language employed :

“ The application by the relator was for a writ of mandamus to compel the board of education of the city of Detroit to audit a bill presented by the relator to the respondent for the sum of $25,000 for services rendered by the relator for the respondent. The facts of the case, about which there is no dispute, appear to be briefly as follows:
“ The relator is the city counselor of the city of Detroit and has held that office for many years. On May 14, 1903, the board of education adopted the following resolution:
‘Resolved, that the board of education of the city of Detroit hereby retain Timothy E. Tarsney, P J. M. Hally and Albert B. Hall for the purpose of representing the board in the case of the Chicago, St. Paul & Milwaukee Railway Company v. Perry F. Powers, Auditor General, and such other cases in the United States courts, wherein the validity of Act No 173 of 1901 is attacked, and agrees to pay them such reasonable compensation as their professional services may be worth.
“ ' In contracting for such services it is expressly understood that the present board or its successors may at any time discontinue said services, and the said attorneys are to be paid only up to the time of said discharge ’
“Under the resolution of May 14,1903, the relator performed certain services for the board of education of the city of Detroit. * * * It appears that Act No. 173 of the Public Acts of 1901, the validity of which was being attacked in the United States court for the western district of Michigan, provided for a method of taxation of railway properties within the State of Michigan which the railway companies were endeavoring to have held invalid. Under the act in question a very much larger sum would be realized annually as taxes fi'om the various railroad companies than were collectible under the law prior to the passage of the act in question. These moneys, when collected by the proper State officer, became a portion of the primary school fund. Every taxpayer in Michigan, therefore, except the railway companies, was interested in sustaining the law in question, because all property subject to taxation is liable to pay its proportion of the school tax necessary for the maintenance of the public school system in the State. * * *
“The law department of the city of Detroit was created by an act approved May 4,1895 [Act No. 389, Local Acts 1895], entitled, ‘An act to provide for a law department for the city of' Detroit, to abolish the offices of city counselor and city attorney, and to repeal Act No. 419 of the Local Acts of 1893, entitled, “An act supplemental to the charter of the city of Detroit and to provide for a law department in said city,”’ approved June 1, 1893.
“The act [§§ 5, 10] creating a law department contains the following, among other provisions:
“ ‘ The corporation counsel shall be the head of the department of law and he shall superintend and conduct all the law business of the city and its departments, conduct all suits brought by or against the city or any board thereof, except the board of police commissioners. * * *
“‘No officer, department, municipal board, * * * including the board of education of the city of Detroit, shall have or employ any attorney or counsel unless upon the recommendation of the corporation counsel, but it shall be the duty of the law department to furnish to every department, officer, and municipal board such advice or legal assistance, as counsel or attorney in or out of court, as may be required by such officer, department or board.’
“There is no disputed question of fact raised either by the pleadings or proofs in the case. Two legal questions are raised. The first question is whether or not under the act creating the legal department for the city of Detroit the corporation counsel was bound to render to the board of education such legal services either ‘ in or out of court ’ as the board of education might require without compensation other than that provided for in the act itself. If this is answered in the affirmative, nothing remains of the case. If, however, this question should be answered in the negative, there still remains the legal question whether or not the board of education of the city of Detroit had the legal power to enter into a contract with the relator involving the expenditure of public moneys in its hands for the purpose of having the respondent assist the attorney general in defending the suits brought against the State by the various railroad companies for the purpose of invalidating a general statute of the State.
“We think that the first of these questions must be answered contrary to the contention of relator. Prior to the passage of the law department act of 1895 the board of education employed its own attorney. Other boards likewise employed individual attorneys to represent their interests. In September, 1897, the corporation counsel notified the board of education that he ‘ was prepared to attend to all the legal duties of the board, and would arrange to have one of his assistants attend all board meetings and meetings of any committee where his presence was required.’ Since that time up to the present time the board of education of the city of Detroit has not had a separate attorney, but has received such legal assistance as it required from the corporation counsel. A careful reading of the provisions of the law department act leads to the conclusion that it was the intention of the legislature to abolish the system' then in vogue in the city of Detroit of permitting each board to conduct its law business through separate counsel. Provision was made for the payment of an adequate salary to the corporation counsel, and for the employment of a considerable corps of assistants, who are likewise paid adequate compensation. There is no doubt in the mind of the court that section 857, above quoted, clearly intended to impose upon the corporation counsel the duty to furnish to the board of education such legal advice, either in or out of court, of which it might thereafter find itself in need. The practical construction given this section by the corporation counsel himself and his predecessor, while not conclusive, lends weight to this view. Nearly 10 years have passed since the legal affairs of the board of education have been taken over by the corporation counsel, and no question of this kind has been raised heretofore, and the corporation counsel himself during the argument of. the case averred his entire willingness to continue to represent the board-as occasion might require during his tenure of the office.
“ The relator raises two objections to this view of the case. He argues, first, that, if it was the intention of the legislature^ to impose the duty of representing the board of ' education upon the corporation counsel, that the act is unconstitutional, because it would then embrace matter broader than its title. With regard to this contention we can only say that we cannot agree with the relator. It will be borne in mind that the limits of the school district over which the board of education of the city of Detroit has control are coextensive with the limits of the city of Detroit itself. It will further be borne in mind that various officers of the municipality of the city of Detroit are themselves members ex officio of the board of education, and, further, that the mayor of the city of Detroit has power to veto the proceedings of the board of education. All these legislative provisions tend to show the intimate relation existing between the board of education and the municipality itself, and while, perhaps, it may be a misnomer to call the board of education a municipal board, yet, nevertheless, in view of the'various legislative provisions before adverted to, we have no doubt that in passing the act in question relating to the law department the board of education was so considered.
“The next objection raised by the relator is that, even though the act is constitutional, he would not be compelled to represent the board of education because the matter in which the resolution endeavored to employ him was one in which the board of education could not, by its own volition, become a party, nor could it be made a party thereto against its will. Therefore, he argues, this being outside any duty imposed upon him by the statute, presuming its constitutionality, he is entitled to recover pay for the same under the resolution of employment. We think that the language, ‘ either in or out of court,’ is sufficient to cover all services of a legal character.
“We next come to consider the question of the legal power of the board of education to enter into the contract upon which the relator relies. It will be remembered that the suits in which the relator’s services were engaged were suits brought against the auditor general of the State, and were defended by the State through its proper officer, the attorney general. There is statutory provision empowering the State to employ further counsel if necessity arises; but nowhere is there any authority which permits an individual or a corporate body within the State to interfere in litigation wherein the State is a defendant. It is true, as argued by the relator, that the citizens of Detroit (not the board of education) were vitally interested in the maintenance of the validity of the act in question in that case. The interest of the citizens of Detroit was-not as residents of a particular school district, but as taxpayers having property liable to taxation within the corporate limits of the city of Detroit, which happen to be coextensive with the limits of the school district under the control of the board of education. Should the validity of the act be sustained, the tax for school purposes within the city of Detroit would be less. Should the act be held invalid, the taxes would be more. The board of education as such had absolutely no interest in the question at all. If it, as a board, had had an interest indirectly, still in our opinion it would not have the power to expend public moneys for the purposes indicated by the resolution, but, as we have pointed out, we believe the interest, indirect as it was, was not the interest of the board of education, but of the taxpayers of the city of Detroit.”

The decision of the court below was clearly right, and stands affirmed.

McAlvay, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    LYLE v. SHERMAN.
    Mandamus — Jurisdiction—Stenographer’s Transcript of Evidence.
    An application for a writ of mandamus to compel a circuit court stenographer to deliver a transcript of testimony on payment or tender of the statutory fees therefor should be made to the circuit court, and not to the Supreme Court.
    Mandamus by Clarence M. Lyle to compel Harvey A. Sherman, official stenographer of the 36th judicial circuit, to deliver a transcript of testimony.
    Submitted January 22, 1907.
    (Calendar No. 22,099.)
    Writ denied March 5, 1907.
    Respondent is the official stenographer of the Thirty-Sixth judicial circuit, and refuses to deliver to relator, an attorney at law, the transcript of the testimony of certain witnesses in a case in which relator is counsel, except upon payment of his legal fees therefor and in addition thereto a fee of $5 for taking stenographic notes of the argument of one of the opposing counsel in said cause at relator’s request. Relator prays an order requiring respondent to show cause why a peremptory mandamus should not issue requiring respondent to deliver the transcript of testimony aforesaid on payment or tender of the statutory fees therefor.

      Smith & Lyle, for relator.

      Thomas J. Cavanaugh, for respondent.
   Per Curiam.

The application for writ of mandamus in this matter is denied, for the reason that the matter should first be passed on by the circuit judge. Doubtless the circuit court will grant the writ, to which we think relator entitled,«upon application, leaving the respondent to his legal remedy, so far as the disputed charge is concerned, for which the statute does not provide.


author: Carpenter, J. Hooker, J.

text:
    MARR v. COOK.
    1. Justices of the Peace — Appeals—Amended Return — Payment o^Fees.
    Plaintiff in a suit originating in justice’s court cannot complain that the circuit court on appeal erred in compelling the justice to make an amended return because the justice was not paid for making such return, only the justice being entitled to raise such question, and it being necessary that he should raise it before making the return.
    2. Same — Appearance in Circuit Court — Effect.
    A defendant in justice’s court who has taken a special appeal has submitted himself to the jurisdiction of the circuit court, and his general appearance in that court does not enlarge that jurisdiction nor waive his right to ask further returns from the justice.
    3. Same — Appearance—Effect.
    A statement by defendant’s counsel, when appearing in justice’s court on the return day, that he appears “'specially,” sufficiently indicates an intention to reserve the right to question the jurisdiction of the court, though no specific objection is stated until the adjourned day.
    4. Attachment — Bond—Necessity.
    A justice of the peace obtains no jurisdiction by attachment proceedings in which the writ is issued before a bond is filed.
    Error to Lenawee; Chester, J.
    Submitted October 5, 1906.
    (Docket No. 17.)
    Decided March 12, 1907.
    Attachment proceedings in justice’s court by Daniel Marr against George S. Cook. There was judgment for plaintiff, and defendant took a special appeal to the circuit court. The judgment was set aside by the circuit court, and plaintiff brings error.
    Affirmed.

      Smith, Baldwin & Alexander, for appellant.

      William J. Ingersoll, for appellee.
   Carpenter, J.

Plaintiff commenced this suit by writ of attachment before George R. Kilbury, a justice of the peace for the county of Lenawee. A summons was also issued because, as the justice returns, “ he thought it was necessary to have a summons.” Certain property of defendant was seized upon the writ of attachment, and a copy of the writ and summons personally serv'd upon defendant, but no bond whatever was given. On the return day of the writ, defendant appeared specially ” and asked an adjournment. Upon the adjourned day he again appeared “ specially ” and objected to the jurisdiction of the court “ because no bond was filed in the case before a writ was issued.” This objection was overruled, and defendant withdrew from further participation in the proceedings. The justice thereupon, at the request of the plaintiff, granted another adjournment. On that second adjourned day defendant did not appear. Plaintiff filed a bond which the justice’s docket recites was omitted when the writ was issued. The suit was tried, and judgment rendered in plaintiff’s favor for $64 damages and $9.95 costs of suit. To review this judgment, defendant took a special appeal to the circuit court. That court compelled the justice to make a second and third amended return, from which the facts herein stated appear, and determined therefrom that the justice erred in overruling defendant’s objection to his jurisdiction, and set aside the judgment rendered by him.

Plaintiff contends that this was error and seeks a reversal in this court.

The first question demanding our consideration arises from plaintiff’s contention that the circuit court erred in compelling the justice to make a second and third amended return — without such returns the record would not show the most important of the foregoing facts — upon the ground that the justice was not paid for making those returns. Plaintiff cannot raise this objection. It is an objection which could only be raised by the justice, and he should have raised it before making the return. See section 923, 1 Comp. Laws. See, also, Stevenson v. Kent Circuit Judge, 44 Mich. 162.

It is contended that defendant waived the right to ask for further returns, because before asking for them he had appeared generally in the circuit court. I think this general appearance had no effect because defendant by appealing to the circuit court had already submitted himself to its jurisdiction. His subsequent general appearance did not enlarge that jurisdiction or change his relations to the court or to the cause in any manner whatsoever. Defendant had then the same right to ask for these returns that he had before he entered a general appearance.

It is contended that defendant’s appearance on the return day was a waiver of any objection to the jurisdiction because, though he indicated that he appeared specially, he nevertheless appeared generally because no objection to the jurisdiction was specified. No authorities are cited in support of this contention, and I do not think it reasonable. I think we should give to the word “specially ” the construction which would ordinarily be accorded it. The statement of counsel that he appeared specially is certainly a statement that he does not appear generally, and it is a sufficient indication of an intention to reserve the right to question the jurisdiction of the court.

This brings us to the meritorious question in the case: Did the justice err in overruling defendant’s objection to the jurisdiction ? That the justice did not get jurisdiction of the attachment suit because of the failure to file a bond is too obvious to require discussion or citation of authorities. Plaintiff’s counsel contend that though the justice had no jurisdiction of the attachment suit, he had jurisdiction to render a personal judgment against defendant, and they also contend that because the return of the justice shows that during the proceedings before him— precisely when it is difficult to say — the attached property was returned to defendant, that the effect of those proceedings was merely to give plaintiff a “ personal judgment against defendant, and that the proceedings by attachment are out of the case.” Unfortunately for this argument the docket and minutes of the justice fail to show what his return shows, viz., that the attached property was ever redelivered to the defendant. They show the proceedings in the suit as if it were an ordinary attachment suit. The judgment from which defendant seeks relief is the judgment shown by the justice’s docket and minutes. That is a judgment in an attachment suit, and is in no sense merely a personal judgment. That judgment was erroneous, and the learned circuit judge very properly vacated it.

Plaintiff complains of the amount of costs taxed against him in the circuit court. We think he has no just ground for complaint. If he had, he should seek relief by mandamus, and not by writ of error.

The judgment is affirmed.

McAlvay, C. J., concurred with Carpenter, J.

Hooker, J.

I concur in the result reached in the opinion of Justice Carpenter upon the ground that the justice obtained no jurisdiction. Neither the writ of attachment nor the summons was served by one shown to be competent. See Rasch v. Moore, 57 Mich. 54; Union Mut. Fire-Ins. Co. v. Page, 61 Mich. 72; Gadsby v. Stimer, 79 Mich. 260.

I also concur in what is said regarding the insufficiency of the attachment bond. I think it unnecessary to decide whether the summons would have conferred jurisdiction had it been properly served, or whether, if so, the judgment could be sustained. Except as above indicated, I concur with Justice Carpenter.

Ostrander and Moore, JJ., concurred with Hooker, J.