text:
    CHADDOCK v. TABOR.
    1. Negligence — Inconsistent Remedies.
    Plaintiff was struck by a shot from an airgun discharged by a nine-year-old boy, and brought suit against one P. for his injuries. It was claimed in such suit that the boy, because of his immaturity, did not appreciate the dangerous character of the weapon, and that P., who had purchased the gun for another lad, his son, was liable The court, upon the facts, ruled against this contention, but the question of the negligence of the boy who fired the gun was not involved in the disposition of the case. Held, not to bar an action against the boy himself.
    2. Same — Infants —Careless Use of Firearms — Evidence-Question for Jury.
    Plaintiff testified that, while standing in the street near an opening in a fence, he was struck in the eye by a shot; that at about that moment he saw defendant, a boy nine years old, step out from behind a clump of grape-vines about 60 feet away, with an airgun in his hand; that defendant told him that he had been shooting, but not at him, and asked forgiveness for having injured him. Defendant claimed that he looked before he fired, that no one was in line of the shot, and that he did not fire in the direction of the street. It was his theory that the shot glanced from a board at which he was aiming, and struck the plaintiff while he was standing some 30 feet out of the line of the discharge. His testimony, however, upon the trial of a previous case, to which he was not a party, contained an admission that he saw plaintiff as soon as he had fired, and that plaintiff was then right in front of his gun. This testimony was read in evidence against him. Held, that there was a question for the jury as to whether the accident was occasioned by defendant’s negligence.

      Error to Berrien; Coolidge, J.
    Submitted October 8, 1897.
    Decided November 17, 1897.
    Case by John N. Chaddock against Roscoe Tabor for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. Plummer, for appellant.

      Gore & Harvey and N. A. Hamilton, for appellee.
   Moore, J.

Plaintiff recovered a judgment against the defendant in the circuit court, from which judgment defendant appeals.

When the defendant was nine years and seven months old, he was using an airgun. A shot from this gun struck the plaintiff in the eye, and inflicted such injuries that it became necessary to remove the eye. It was the claim of the plaintiff that defendant had arrived at such years of maturity that, if negligent in the use of the gun, he was liable for the injury done the plaintiff, and that he was negligent in the use of the gun. It is the claim of the defendant that, under the facts disclosed, there was no liability; that the affair was an accident, pure and simple. It is his claim that he did not see plaintiff, and that plaintiff was not in a position where defendant ought to have seen him. It is his contention that, if a straight line were drawn from his position when he fired the gun to the position then occupied by the plaintiff, a corner of a dwelling house would intervene. He says he placed a grape upon a plank which was upon the ground, and pointed his gun at the grape, and fired; that, before doing so, he looked towards the street, to see if any one was in. the line of the discharge of the gun, and saw no one. It is his claim that the shot from the gun struck the plank, glanced to the west and south, striking the plaintiff when he was 30 feet from the line which the shot should have taken when it was discharged from the gun.

Testimony was offered upon the part of the plaintiff that, as he was standing in the street, near an opening in the fence, looking at the roof of a building in process of repair, he was struck in the eye. He dropped his head, and saw that he was blind in that eye. At about that minute, he saw a boy step out from behind a clump of grapevines in front of him, about 60 feet away, with a gun in his hand. He asked the boy if he was shooting in there with the gun, and the hoy replied, “Yes, but I was not shooting at you,” placing quite a strong emphasis on the last word. He also testified that a little later the boy came up to where the plaintiff and Mr. Merrill were, and “he soon saw-what injury he had inflicted, and wanted to know if I would not forgive him.” This boy was the defendant.

In 1890, plaintiff in this case sued Mr. Plummer to recover for this same injury, claiming that the airgun was furnished to young Tabor under such circumstanc.es as to make Mr. Plummer liable. A judgment was rendered in the circuit court in favor of Mr. Plummer, by direction of the trial judge, which judgment was affirmed in this court. Chaddock v. Plummer, 88 Mich. 225 (26 Am. St. Rep. 283). Young Tabor was a witness in the trial of the case against Mr. Plummer. The testimony given by him in that trial was put in evidence in this trial. He then testified, among other things, that he looked before he fired, to see if anybody was coming along the street; that there was no one; that, when he first saw Mr. Chaddock, he was right beside the post, was one side of it, was right in front of his gun. Again, he said he saw Mr. Chaddock right after he shot, and went around where he was.

“Q. Could you see him from where he was when you got through shooting ?
“A. Yes, I could see him then.
‘ ‘ Q. Did you go down there ?
“A. I went down where he was.
“Q. You found he was hurt?
“A. Yes, sir.
“Q. You didn’t see anybody at all when you shot the gun?
“A. I didn’t see anybody at all, until after.
“Q. You knew it wouldn’t be right to shoot towards anybody if anybody was there ?
“A. Yes, sir.”

The circuit judge submitted special questions to the jury, as follows:

“Q. Was the shot which produced the injury to plaintiff fired at a grape on a board which was only a few feet from the defendant?
“Q. Was the defendant, at the time he fired the shot, facing the west ?
“Q. Was the injury produced by the shot glancing about 30 feet to one side of the direction in which the gun was aimed ?”

These questions were answered in the negative.

The defendant was not sworn as a witness in this trial.

The trial judge gave a great many requests to charge, prepared by counsel for each of the parties. Complaint is made by the defendant because, as part of a request given on the part of the plaintiff, the trial court used this language:

“If you find from the evidence that the boy pointed the gun at the plaintiff without intending to injure .the plaintiff, and plaintiff was so near that defendant ought to have apprehended that such act was dangerous, the defendant would be liable, as the act of pointing the gun at the plaintiff was a negligent act; and, in that event, your verdict should be for the plaintiff,” etc.

Defendant also excepts to the refusal to charge:

“The undisputed evidence tends to prove that the defendant was facing west when he shot the spring gun at a grape on a board in his immediate front, and the direct line of fire of the spring gun was west, while the plaintiff was some 30 feet south of the line of fire, and some 60 or 70 feet from the defendant; and the jury áre not to presume that the gun was pointed in any other direction, or that the plaintiff was standing in any other place.”

The court charged the jury, upon the request of defendant:

‘ ‘ The burden of proving the negligence alleged in this case is upon the plaintiff, and, if he has not proved negligence on the part of the defendant by at least a clear preponderance of the evidence, then he cannot recover.
“Defendant is not liable unless his conduct at the time in question was negligent. Negligence, as applied to this case.and to the defendant, is the failure to do what a reasonable and prudent boy of the age and intelligence of the defendant would ordinarily have done under the circumstances, or doing what such a boy, under the circumstances, would not have done. If the defendant was not negligent under the above definition, then he is not liable.
“If the jury believe from the evidence that, when the defendant fired the air or spring gun, he was facing west, and that he was 75 or more feet -from the highway, and that the gun was pointed at a grape on a board only a few feet from where the defendant was standing, and that plaintiff, at the time the shot was fired, was in the neighborhood of 30 feet to the south of the 'direc-' tion in which the gun was pointed, and that defendant looked just before he shot, and did not see the plaintiff, and that plaintiff was injured by reason of the shot glancing something like. 30 feet to the south of the line of fire of the spring gun, then there was no negligence on the part of the defendant; and, if you so find, you will render a verdict for defendant.
“If Roscoe Tabor, just before he fired, looked to see if any one was in or near the line of fire, and there was no one there, then he was not negligent in shooting as he did, and in such case he is not liable in this suit.
“If the injury to plaintiff was caused by the shot glancing a long and unusual distance and direction out of the line in which defendant aimed, then defendant is not liable.
“An accident is an event from an unknown cause, or an unusual and unexpected event from a known cause; a chance or casualty. In this casé, if the injury to Mr. Chaddock was an unusual and unexpected event from the use of the spring gun under all the circumstances, then the injury was accidental, and plaintiff cannot recover.
“You are instructed that, although you may believe from the evidence that the injury complained of was occasioned by the act of the defendant, still, if the jury further believe from the evidence that such injury could not have been foreseen -or reasonably expected to result from the act of the defendant, then the defendant is not liable.”

In addition to giving the requests prepared by counsel, the court gave a very full general charge, in which he used this language:

“A boy of nine years of age, of average care and intelligence, might be presumed to know enough not to shoot directly at a person with an airgun,' if such person were within three feet distance. If a boy did so, the jury-might be justified in finding such boy guilty of negligence. It is claimed, however, by the plaintiff in this case, that this really occurred.”

It is now contended by counsel that no one made the claim stated by the circuit judge in the last sentence quoted, and that this portion of the charge was error. There might be some force in this contention if the portion of the charge quoted was left to stand by itself, but, taken in connection with what came before and what was said afterwards, the jury could not have obtained the impression now urged by counsel. The trial judge had instructed the jury that the fact of negligence must be proven to make the defendant liable. He told the jury that the age at which infants arrive at the age of discretion could not be stated by the court arbitrarily.

“It depends often on the peculiar circumstances of the case. Now, in this case, I shall leave it to you to say whether the boy was of sufficient age in this case that he could have been negligent, under the circumstances of the case, in using the airgun as he did, and under the circumstances that he did. Whether anything occurred in connection with the use and discharge of the gun from which negligence could be imputed to a boy nine years of age is a fact for you to determine.”

Then came the language before quoted, to which the court added at once:

“I cite that merely as an illustration of the principle. It is claimed by the plaintiff that an act of a similar nature, and like it, and of the same character, occurred. It is claimed that the defendant discharged the gun in the direction of the plaintiff; that the plaintiff was so near the defendant that the discharge of the gun was in itself an act of negligence in the defendant. It is claimed by the defendant, however, that the evidence does not warrant any such inference. Of course, you will he governed simply by the evidence in the case.”

The general charge of the trial judge in relation to this branch of the case is too long to find a place here. It was a very full and fair charge. While it would have been better to have avoided the use of the sentence, “It is claimed, however, by the plaintiff in this case, that this really occurred,” the court at once corrected himself, and no one could have been misled.

A great many assignments of error are made. While all have been considered, we deem it necessary to discuss only two branches of the errors assigned in addition to those referred to. In the suit brought by Mr. Chaddock against Mr. Plummer it was claimed that the gun used was a dangerous weapon; that young Tabor, because of his infancy and immaturity, did not appreciate the danger liable to result from the use of such a weapon, and that Plummer’s relation to young Tabor was such as to create a liability against Mr. Plummer for the injury received by Mr. Chaddock. It is claimed that the position taken by the plaintiff in the case against Mr. Plummer was inconsistent with the claim now made, and that, having elected his remedy in the Plummer Case, plaintiff cannot now pursue another inconsistent with it, — citing a number of cases. We do not think these cases .sustain the contention of counsel. In Chaddock v. Plummer, 88 Mich. 225 (26 Am. St. Rep. 283), the questions of the negligence and the infancy of young Tabor were ,not reached in the disposition of the case. The disposition of the case did not involve a consideration of either of those questions, but the court said that, under the facts shown, the plaintiff had no remedy against Mr. Plummer.

In McLaughlin v. Austin, 104 Mich. 491, Justice Hooker said:

“No rule is better settled than the proposition that one having the choice of two inconsistent remedies is bound by an election, and that suit brought upon one precludes a subsequent resort to the other claim. * * * This rule is not inconsistent with the practice of bringing a second and different action where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected. There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions, upon which recovery could not be had.”

We do not think the plaintiff, by bringing his suit against Mr. Plummer, was precluded from bringing this suit.

The remaining question calling for discussion is, Was there testimony sufficient to justify the submission of the case to the jury and the special findings of the jury? It is true that the same degree of care and maturity of judgment is not required of a boy under 10 years of age that is required of a person of mature years. Cooper v. Railway Co., 66 Mich. 261 (11 Am. St. Rep. 482). The judge so instructed the jury. It is insisted, however, that, as the defendant testified that he shot at the grape, and not in the direction of the street; that he looked to see if any one was in the line of the discharge of the gun, and saw no one, — there was nothing to be submitted to the jury. We have already called attention to the testimony of the plaintiff as to the situation at the time and immediately following the injury, and to the testimony given by young Tabor upon the other trial, and we think this testimony raised a question of fact for the jury, which was properly submitted to them.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    STILWELL-BIERCE & SMITH-VAILE CO. v. NILES PAPER-MILL CO.
    Agency — Secretary of Corporation — Authority to Purchase Goods — Notice.
    The fact that goods ordered in the name of a corporation by its secretary are directed to be shipped to a third person is sufficient to put the seller on inquiry as to the officer’s authority.
    Error to Van Burén; Buck, J.
    Submitted October 6, 1897.
    Decided November 17, 1897.

      Assumpsit by the Stilwell-Bierce & Smith-Vaile Company against the Niles Paper-Mill Company for goods sold and delivered. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.
    This is a suit brought to recover the price of certain mill machinery, which plaintiff claims to have sold defendant in the year 1893. The defense is non assumpsit. The defendant is a corporation organized under the statutes of this State. Plaintiff is a corporation organized under the laws of Ohio, and doing business in that State. One E. A. Jacks was a director and secretary of the defendant, and had been for some time, and conducted its correspondence. The correspondence for the machinery was carried on in the name of the defendant, and was written upon its printed stationery. The letter ordering the goods stated, “We will take the bevel mortise gear, etc., mentioned in your favor.” The letter then closed thus: “Ship the gear and pinion to the Allegan Paper Company, Allegan, Michigan,” and was signed: “Niles Paper-Mill Company. E. A. Jacks, Sec’y.” The property was shipped as directed, and delivered to the Allegan Paper Company, Allegan, Mich., which was also a corporation organized under the laws of this State. Jacks was interested in, and was a director of, that company. No other officer of the defendant had any knowledge of this transaction, and the defendant received no benefit from it. Jacks had no authority, expressed or implied, to order this machinery for another company. No entry of it was made upon the books of the defendant. It also appears that one Bither, who was a foreman of the defendant, and was also in the employ of the Allegan Paper Company, visited the plaintiff at Dayton, Ohio, and informed it that the Allegan Paper Company wanted a wheel, and selected the one mentioned in plaintiff’s bill of particulars, and informed plaintiff’s agent that such wheel would suit the Allegan Paper Company.

      Gore & Harvey, for appellant.

      Edward Bacon, for appellee.
   Grant, J.

(after stating the facts). Under these facts, as found by the court, his conclusion of law that the defendant is not liable is correct. The machinery was ordered for another corporation, situated in another place than the residence of the defendant. The fact that the machinery was ordered for another corporation, and that plaintiff was so notified, was sufficient to put it upon inquiry, and it was its duty to ascertain whether Jacks was authorized by the defendant to make the purchase for another company. It was not within the general scope of Jacks’ agency to order goods in the name of his principal for other parties.

Judgment affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    LEMPKE v. FELCHER.
    Married Women — Contract for Work and Labor — Evidence. Plaintiff testified that defendant, a married woman, stated to him that she was going to start a restaurant, and would have a good deal of work for him to do; that she pointed out to him certain articles, saying that she wanted them fixed, and would let him know about the work; that some months later , the articles were brought to his shop, and repaired by him under the direction of defendant’s husband; that defendant visited the shop, and expressed satisfaction with the way the work was being done; that, when called upon to pay the contract price, she did not deny the contract, but, on the contrary, stated that she had left the money with her husband to pay for the work; that he afterwards received from defendant’s husband a check signed by defendant to apply on the account; and that defendant testified on a previous trial that the property belonged to her, and that she had rented it to her husband. Defendant denied the contract, and claimed ' that the articles repaired belonged to her husband, and that the check was drawn on his funds. Held, that, plaintiff was entitled to go to the jury upon his contention that defendant had employed him to do the work upon articles which she owned or claimed to own.
    Error to Saginaw; Snow, J.
    Submitted October 8, 1897.
    Decided November 17, 1897.

      Assumpsit by Robert O. Lempke against Rebecca L. Felcher for work and labor performed. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James H. Davitt, for appellant.

      Crane & Crane, for appellee.
   Long, C. J.

This action was commenced in justice’s court, and appealed to the circuit, where it was tried before a jury, and the plaintiff had verdict and judgment. It was brought to recover for labor performed by plaintiff on some stoves or ranges, a bar, counter, and ice box, and setting up the same in a restaurant owned and conducted by defendant’s husband and one George Foster. These charges amount to $87.69. The defendant was a married woman, living with her husband, at the time this work was done. There is no contention over the amount or value of the services rendered. The claim is that the defendant did not employ the plaintiff to do the work, and that the articles upon which it was done were not owned by her, but by her husband.

The plaintiff testified that in July, 1894, he was doing some work for the defendant at her house; that on that occasion she stated to him that she would have a good deal of work for him to do after a little while; that she was going to start a restaurant, and hire Mr. Foster by the month, and put him in there; that she pointed out of the door to some stoves, steam chests, and boilers, and said she wanted them all connected and fixed up, and she would let him know about the work; that some months later these articles were taken to his shop, about a block away, and repaired; that the defendant came into the shop, saw him working on them, and said it was all right; that the husband gave the directions about the repairs; that, after the repairs were made, the articles were taken to the restaurant, and set up, and some more work done there. It appears that the account was charged to the defendant on plaintiff’s books, and, after the work was completed, he received a check from defendant’s husband, signed by defendant, for $10 on the account. The defendant was called as a witness in her own behalf, and denied that she pointed out these articles to the plaintiff, or employed him to make the repairs. She further testified that the restaurant business belonged to her husband and George Foster, and was conducted by them, and that she never had any interest in it or connection with it. Defendant’s husband testified that he made the contract with the plaintiff to do the work; that he had no authority from his wife to have it done for her; that he was the owner of the property upon which it was done; and that the check of $10 was signed “R. L. Felcher, by G. P. Felcher,” but the money was his, and not his wife’s.

The court charged the jury, among other matters, as follows:

“(6) If the jury find that the defendant in fact was the owner of the property in the restaurant (that is, the property upon which the plaintiff expended his labor), and that the work was done at her request, then the defendant would be liable for such services. -
“(7) If the jury find that the defendant represented that she wanted some work done upon her property that she was about to place in her business, and that the plaintiff parted with his services relying upon that representation of the defendant, and that he did not receive' any information from the defendant that the defendant was the owner of the restaurant or property in question, then the defendant would be bound to pay for the services of the plaintiff, and she would be estopped from setting up the fact that it was not her property.”

1. It is contended that the court was in error in the sixth clause of the charge as given, for the reason that there was no evidence given showing or tending to show that the defendant was the owner of the property upon which the work was done, or that she had any interest whatever in the restaurant business. We think this contention cannot be sustained. It appears from the testimony of the plaintiff that, when he called upon the defendant for the first money after the work was commenced, she told him to go to Mr. Felcher for it, saying: “I have given him money enough to start the thing over there, and you go to him, and he will give you the money.” This was before the plaintiff received the check signed by the defendant for the $10. The plaintiff further testified that on a former trial of this cause the defendant testified that the property in the restaurant was hers, and that she rented it to Felcher and Foster. We think this, in connection with the other testimony of the plaintiff, had some tendency to show that the defendant not only employed the plaintiff to do the work, but also that the work was done on property actually owned by her, and for her use and benefit. It is true that this was denied by defendant and her husband, but it was a question for the jury, under the circumstances here stated. *

2. It is further contended that there was no testimony offered showing or tending to show an employment of the plaintiff by the defendant to do the work in question, and that she is not, therefore, liable, even if there was evidence tending to show that she owned some part of the property, or had some interest in the restaurant. We are unable to agree with this contention. It is true that the record shows that the talk plaintiff had with the defendant took place some time in July, and the articles were not taken to his shop until about the 1st of September following, and were then taken there by defendant’s husband; yet it appears further that, after the work was commenced, she was at the shop, and expressed satisfaction with the way it was being done, and, when called upon to pay for it, did not deny the contract, but, on the contrary, stated she had left the money with her husband to pay for it.

3. It is contended further that the'court was in error in that part of the charge above quoted marked “(?).” The reason given by counsel for such contention is that it assumes .there was evidence that defendant represented that she wanted the work done upon her property, which she was about to place in her business, and that plaintiff parted with his services relying upon that representation, and that there is no evidence to sustain such an assumption. It is unnecessary to restate the evidence here. As has been said, there was some evidence to sustain the claim that the defendant owned some of this property, and that she made the arrangement with plaintiff to fit it up for use in the restaurant.

4. We think there was no error in permitting the plaintiff to show that he made the original charge for the work upon his books against the defendant; and the court was not in error in its charge upon that question.

Some claim is made that the court erred in the admission of certain of the evidence. We think there was no error in this.

The judgment must be affirmed.

The other Justices concurred.


text:
    PERKINS v. BROWN.
    1. Promissory Notes — Failure of Consideration.
    The consideration for notes given for the purchase price of trees entirely fails where the seller agreed to set out and care for the trees, and failed to do so, as a result of which they became utterly worthless.
    2. Same — Pleading—General Issue.
    A total failure of consideration for notes in suit may be shown under a plea of the general issue.
    Error to Kent; Grove, J.
    Submitted October 18, 1897.
    Decided November 17, 1897.

      Assumpsit by Herbert D. Perkins against William H. Brown upon a promissory note. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Thompson & Temple, for appellant.

      Dunham & Thornton, for appellee.
   Long, C. J.

This action was commenced in justice’s court to recover upon a promissory note. Defendant had judgment. On appeal to the circuit court the cause was tried before a jury, and defendant again prevailed. The note was given upon the sale of fruit trees to be set out upon defendant’s farm. A written order, signed by him, was given for the trees, stating the amount to be paid at $111.50. This order was given in August, 1895. Defendant’s contention was that when he signed this order it was agreed by plaintiff’s agent, to whom the order was given, that plaintiff would set out the trees and care for them. Defendant lived in Grand Rapids, and the trees were to be set out on his farm, some miles from the city.' In October following, the trees were taken to the farm, and “heeled in.” In November following, the plaintiff called upon the defendant with two notes, each for $56, for the defendant to sign. Defendant claims that he refused to sign them because the agent from whom he purchased was not present, and that he then stated to the plaintiff that he had an agreement with the agent that he would set out the trees in the spring, and care for the orchard; that the plaintiff then agreed to carry out this contract, and upon this understanding the notes were signed.- The trees were never set out, and for that reason became worthless. Plaintiff denied the authority of his agent to make such a contract, and denied that he personally ever agreed to set out the trees. Those questions of fact were submitted to the jury, who found with the defendant.

The claims of defendant are (1) that there was a total failure of consideration; (2) that the setting out of the trees by plaintiff was a condition precedent to his right to recover. The plaintiff contends (1) that the parol agreement, if any was made, was merged in the written order, and parol evidence was not admissible to change or vary the terms of the written contract; (2) that the defendant could not show failure of consideration under the plea of the general issue.

The court instructed the jury that if they found that the plaintiff promised he would carry out the agreement made by his agent, and upon such promise the notes were executed, such promise would constitute a substantial part of the consideration for the notes, and if such promise and undertaking was not carried out, and the trees became valueless thereby, the plaintiff - could not recover. The order did not provide that a note or notes were to be given for the trees. The only stipulation as to payment was that six months’ time was to be given for one-half, and one year for the balance.

The case does not present the question of an attempt to contradict or vary the written order. When the plaintiff and defendant met, the agreement was made that, if the defendant would give his notes for the trees, the plaintiff would set them out in the spring, and care for them. This he did not do. It was a substantial part of the consideration for which the notes were given. The plaintiff failed to perform this agreement, and the trees became worthless. There was therefore a total failure of consideration. The defendant received nothing. The suit is upon the notes, and, under the plea of the general issue, total failure of consideration can be shown. Colbath v. Jones, 28 Mich. 280; 1 Shinn, Pl. & Prac. § 740, and cases there cited. The only question of fact in the case was fairly submitted to the jury.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J. Per Curiam.

text:
    PEOPLE, for use of HOLMES, v. COTTERAL.
    1. Sale — Evidence.
    In an action upon a bond given by a contractor for tire erection of a school-liouse to secure the payment of laborers and material men, one of the plaintiffs testified that they furnished the material “used in the high-school building” upon the order of the contractor, that the order came to them by telephone, and that the goods were delivered at the high-school building. Held, sufficient evidence of sale and delivery, in the absence of testimony to the contrary.
    2. Public Buildings — Action on Contractor’s Bond —Justices of the Peace — Jurisdiction—Statutes. .
    One who performs labor or furnishes material in the erection of a public building may maintain an action of assump

      sit in justice’s court on the contractor’s bond given pursuant to 3 How. Stat. § 8411a, 2 How. Stat. §§ 84116, 8411c, where the amount claimed is within the jurisdiction of the justice, although the penalty of the bond is in excess of his jurisdiction; it being the object of the statute to protect the interests of individual laborers and materialmen, whose claims are frequently small in amount, by securing to each a speedy remedy upon the bond.
    Error to Wayne; Donovan, J.
    Submitted October 14, 1897.
    Decided November 17, 1897.
    Application for rehearing denied February 16, 1898.

      Assumpsit by the People of the State of Michigan, for the use and benefit of Frank B. Holmes and Albert R. Strachan, copartners, against Joseph W. Cotteral, Joseph W. Cotteral, Jr., Charles E. Bresler, and John E. Calnon, upon a statutory bond. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Affirmed.
    The defendants Cotteral, copartners under the firm name of J. W. Cotteral & Co., entered into a contract with the board of education of the city of Detroit for the erection of a school-house. They executed a bond, "with defendants B^resler and Calnon as sureties, under Act No. 94, Pub. Acts 1883, as amended by Act No. 45, Pub. Acts 1885. Plaintiffs sold material to Cotteral & Co. for, and which was used in, the construction of this building, to the amount of $242.48. Cotteral & Co. .failed, and plaintiffs brought this suit in justice’s court to recover this amount. Judgment was rendered in their favor upon a verdict directed by the court.

      James H. Pound and Peter E. Park (Elliott G. Stevenson, of counsel), for appellants.

      C. E. Warner, for appellees.
   Grant, J.

(after stating the facts). Three objections are raised against the judgment:

1. It is urged that the execution of the bond and contract was not sufficiently proven. A sufficient reply to this is that these instruments were declared upon, and their contents substantially set forth in the declaration. No affidavit was filed denying their execution. Under Cir. Ct. Pule 8, plaintiffs were not required to prove their execution.

2. One of the plaintiffs testified that they “furnished the material, upon the order of Cotteral '& Co., used in the high-school building; that the order came to us by telephone, and the goods were delivered at the high-school building.” This was sufficient evidence both of sale and delivery, in the absence of any testimony to the contrary. There being no evidence to the contrary, the court correctly held that the sale and delivery were proven.

3. The main contention is that the justice of the peace had no jurisdiction to try the case, because the penalty of the bond was in excess of his jurisdiction. It is insisted that the judgment in such cases should be for the penalty of the bond, to be discharged by payment of damages sustained by the breach thereof. Defendants rely, to support this, upon Wayne Probate Judge v. Dean, 52 Mich. 387; Bishop v. Freeman, 42 Mich. 533; Gray v. Stafford, 52 Mich. 497. Plaintiffs insist that the case is ruled by Montgomery v. Martin, 104 Mich. 390. The summons was in assumpsit, and the declaration sets forth the contract and bond, neglect of Cotteral & Co. to pay, and claims damages to the amount of $500. The object of this statute is to protect the interests of individual laborers and material men, and to secure to each a remedy upon this bond when the contractors have neglected to pay. Section 3 (2 How. Stat. § 8411c) authorizes the prosecution of the bond “by any person, firm, or corporation to whom any money shall be due and payable on account of having performed any labor or furnished any materials in the erection, repairing, or ornamenting of such building.” Section 1 (3 How. Stat. § 8411a) requires “sufficient security by bond for the payment by the contractor and all sub-contractors for all labor performed or materials furnished,” etc. While this statute does not expressly authorize an action of assumpsit, as did the statute involved in Montgomery v. Martin, yet we are of the opinion that its language is broad enough to authorize an action of assumpsit, and recovery to be had for the actual amount due to the laborers and material men. This question does not appear to have been raised in any former suits brought under this statute. In Board of Education of Detroit v. Grant, 107 Mich. 151, the common-law practice appears to have been followed in entering the judgment, which was for the penal sum of the bond, and awarding damages for the breach. In People v. Powers, 108 Mich. 339, the other practice was followed, and judgment entered as in an action of assumpsit for the materials furnished. The declarations were substantially the same as in the present case. The legislature could not have intended that every laborer,'whose claim is usually small in amount, should be compelled to bring his suit in the circuit courts, rather than in the justices’ courts, where speedy trials can be had.

’ Judgment affirmed.

The other Justices concurred.

ON APPLICATION FOR REHEARING.

Per Curiam.

A rehearing is asked in this case for several reasons, but one of which we need to notice. This suit was commenced in justice’s court, and technically we were in error in saying that, under Cir. Ct. Rule 8, plaintiffs were not required to prove the execution of the bond. Under the statute, it was necessary to produce and file the bond with the justice in order to avoid proof of its execution. 2 How. Stat. § 6928. If, however, it be conceded that the opinion in this regard was erroneous, still a rehearing should not be granted, because the record shows that there was sufficient proof of the execution of the bond. The other reasons stated in the motion were fully argued and considered in the former opinion, and we decline now to review them. In this connection, we call attention to Brown v. Brown, 64 Mich. 82, which contains a clear statement of the reasons for revoking decisions upon motions for rehearing.

Eehearing denied.


text:
    BROWN v. SCHIAPPACASSE.
    1. Lease — Collateral License — Covenants.
    A lease provided, for the renting of “ one-half of cellar in front of stairway * * * in store * * *, corner of C. street. I consent to his occupying the side of said store on C. street, from rear of show window at corner of C. street to entrance to cellar, as a fruit and nut stand, on the sidewalk next to the building, — for ” a certain term. The lease contained the usual covenant for quiet and peaceable possession. Held, that the cellar alone was rented, and a mere license given to occupy the' sidewalk space, to which the covenant did not apply.
    2. Same — Intent—Question for Court — Parol Evidence.
    The lease being unambiguous in its terms, what the parties intended by the language employed was a matter of law for the court, to be determined from an examination of the instrument itself, without the aid of parol evidence.
    Error to Wayne; Hosmer, J.
    Submitted October 14, 1897.
    Decided November 17, 1897.

      Assumpsit by William J. Brown against Louis Schiappacasse for rent. Prom a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Bowen, Douglas & Whiting, for appellant.

      Walter Ross (George H. Prentis, of counsel), for appellee.
   Long, C. J.

On February 28, 1889, one J. C. Mueller made, executed, and delivered to tbe defendant a written lease of certain premises in Detroit. The lease provides:

“The said party of the first part, in consideration of the rents and covenants herein specified, does hereby let or lease to the said party of the second part the following described premises, situate and being in the city of Detroit, Wayne county, State of Michigan, to wit: One-half of cellar in front of stairway leading down from G. Murray’s saloon in store 110 Woodward avenue, corner of Congress street. I consent to his occupying the side of said store on Congress street, from rear of show window at corner of Congress street to entrane to cellar, as a fruit and nut stand, on the sidewalk next to the building, —for the term of six years from and after the 1st day of May, 1889, on the terms and conditions hereinafter mentioned, to be occupied for fruit and nuts, and in no case to be used for any business deemed extra hazardous on account of fire.”

The lease contained the usual covenants for quiet and peaceable possession of the premises demised, and for the payment of rent of $300 per year, payable monthly, in advance. The defendant went into possession of the premises, and continued to occupy them, except as will be hereafter stated. All the rights of Mueller under this lease were assigned to plaintiff in January, 1890. This action was brought to recover the rents claimed to be due on the lease from May 10,1894, to and including January, 1895, at $25 per month.

On the trial in the circuit court, the defendant testified that he occupied the whole of the premises, including the sidewalk space, up to May 10, 1894, when the city of Detroit caused his sidewalk stand to be removed, and since that time he has not been permitted by the city to occupy that space. The defendant offered to show that, for many years prior to the time when this lease was made, the city of Detroit had permitted sidewalk spaces to be occupied for fruit stands, and that such fruit stands were so occupied by the consent of the owners of the premises; that the fruit-stand privilege was the principal part of the value of the premises to the lessee; and that the license to so occupy the sidewalk, being incorporated in the lease, is, in effect, a covenant for occupancy, and forms a part of the consideration of the lease. The court refused to permit this showing to be made, and held that the common council had the power to regulate all matters pertaining to the streets, and that the parties must have contemplated that at the time the lease was made; that the language in the lease, so far as it related to the sidewalk privilege, must be construed as a mere license, so far as the grantor could give such license. At the close of the testimony, counsel for defendant asked the court to charge the jury, substantially:

1. That, if they found that the valuable part or consideration of the lease was the occupancy of the sidewalk, the consideration failed when the city removed the business therefrom, and the plaintiff could not recover.
2. That, by the terms of the lease, it was covenanted that defendant should have the quiet and peaceable possession of the premises intended to be occupied, and that this covenant applies to the sidewalk space; and if such covenant was broken without the fault of defendant, and he was not permitted to peaceably occupy the premises rented, plaintiff could not recover.
3. That if they believed from the reading of the lease, and from the circumstances of the case, that it was the intention and understanding of the parties that the valuable part of the lease and consideration therefor was the occupancy of this sidewalk space, and the occupancy of the cellar was only incident thereto, then the plaintiff could recover, in any event, only such amount in rent as the cellar alone was worth.
4. That the taking away of the use of the sidewalk space was such a failure of consideration that plaintiff could not recover.

These requests were refused, and the court instructed the jury that the lease was an agreement only for the use of the cellar for a specified term, and that the privilege of occupying the sidewalk space was a mere license on the part of the lessor, in so far as it was in his power to give it; that the covenant for quiet and peaceable possession and enjoyment of the premises had relation only to the cellar, and not to the sidewalk space. The court thereupon directed the jury to find for the plaintiff for the amount which he claimed he was entitled to recover. The verdict and judgment were for plaintiff for $193.86.

It is the contention of counsel for defendant that the lease is ambiguous in its terms, and that parol evidence was admissible to show the circumstances under which it was made; that they should have been permitted to show that the defendant had no use for this small cellar except as incident to his fruit-stand business on the sidewalk. We think the court was not in error in its interpretation of the lease, and in holding that parol evidence could not be introduced to vary or contradict its terms. Taking the whole instrument together, it is evident that it was the cellar only that was rented. It is true that the lease states, “ I consent to his occupying the side of said store on Congress street,” etc., but, as observed by the court below, it was but a mere license to'do so, and the covenant for quiet and peaceable possession cannot be regarded as having application to that clause. What the parties intended by the language employed in the lease was a matter of law for the court, and not a question for the consideration of the jury. The intent of the parties was to be found by an examination of the whole instrument, and from such reading it is evident that the parties must have understood that the common council of the city had absolute control over the streets; that no one could let a privilege to occupy the streets without the permission of the common council. It was this view of the matter, undoubtedly, which led the lessor to insertan the lease a mere permission or license to occupy the walk.

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

The other Justices concurred.


author: Moore, J.

text:
    KEYSTONE MANUFACTURING CO. v. FORSYTH.
    Set-off — Action on Joint Note — Several Demand — Evidence.
    Plaintiff brought suit upon a promissory note given for part of the purchase price of machinery by F., the purchaser, and N., the agent who negotiated the sale. Defendants pleaded the general issue, with notice of set-off. They were permitted to testify that the machinery was liot as represented, and the jury were allowed to set off a partial payment made by F. when the machinery was purchased. Held, improper, under the pleadings, in view of 2 How. Stat. § 6884, relating to set-off, which provides in subdivision 6 that, “if there be several defendants, the demand set off must be due to all of them jointly, unless the defendants shall prove an agreement of the plaintiff that the demand proposed to be set off should apply as payment upon his claim.”
    Error to Wayne; Donovan, J.
    Submitted October 14, 1897.
    Decided November 17, 1897.

      Assumpsit by the Keystone Manufacturing Company against Charles Forsyth and Charles Neuendorf upon a promissory note. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Hamilton Baluss, for appellant.

      William C. Gottman, for appellees.
   Moore, J.

The plaintiff sued defendants in justice’s court, and declared upon a promissory note given by defendants to plaintiff. The defendants pleaded the general issue, and gave notice of set-off, and gave no other notice. The plaintiff recovered judgment for the full amount of the note, with interest. From this judgment defendants took an appeal to the circuit court, where judgment was rendered in favor of defendants for $150, from which judgment plaintiff appeals.

It is difficult to determine from the record just what occurred at the trial in the circuit court, but it does appear from the record that defendant Forsyth claimed that he purchased from plaintiff a corn husker and fodder cutter, combined, upon which he paid $100 down. The note in question was given for part of the purchase price of the machine, and was signed by defendant Neuendorf, who acted as the agent of the plaintiff in making the sale to defendant Forsyth, as well as by the defendant Forsyth. The plaintiff, to establish its case, introduced the note in evidence, and a computation of the amount due thereon, and rested. Defendant Forsyth then attempted to show that the note in question was given for the machinery before mentioned, and that the machinery did not work as it was agreed it should work when it was purchased. Objection was made to the admission of this testimony upon the ground that it was not admissible under the pleadings, and also because there was nothing in the notice to apprise plaintiff of the proposed defense. This objection was overruled. Defendant testified to the representations made as to the capacity of the machine, and that it did not do the work it was represented to do. Was this admissible under the plea and notice of set-off ? The note sued upon was given by both defendants. The payment made which was claimed to be a set-off was made only by the defendant Forsyth, and it was for this payment that judgment was rendered in favor of defendants. The sale was made by plaintiff, through the defendant Neuendorf, not to both defendants, but to defendant Forsyth. 2 How. Stat. § 6884, in relation to set-off, provides, in subdivision 6:

“If there be several defendants, .the demand set off must be due to all of them jointly, unless the defendants shall prove an agreement of the plaintiff or plaintiffs that the demand proposed to be set off should apply as payment upon his or their claim.”

The defense proposed did not meet the requirements of this provision. We do not mean to intimate that the defense could not be made under proper pleadings, but we think it was not allowable under the pleadings shown by this record.

Other errors are assigned, which it is not necessary to discuss, as they are not likely to occur again.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


text:
    HARLEY v. PROCUNIER.
    1. Exemptions — Right op Selection — Husband and Wipe.
    The right to determine which two of several cows belonging to a married man shall be exempt under the statute (2 How. Stat. § 7686, subd. 6) rests with the husband, and is not subject to the wife’s concurrence or consent.
    2. Same — Chattel Mortgage — Validity.
    Although a mortgage on exempt property is void, under 2 How. Stat. § 7686, subd. 9, unless signed by the wife, a mortgage of two cows is valid without the wife’s signature, where thehus-' band owns five cows; the giving of the mortgage being construed as a selection of those which are not exempt.
    Error to Alcona; Simpson, J.
    Submitted October 14, 1897.
    Decided November 17, 1897.
    Replevin by Anna Harley against Dessmus Procunier. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      O. H. Smith, for appellant.

      M. J. Connine, for appellee.
   Long, C. J.

Plaintiff is a married woman having a family of children. September 10, 1894, her husband gave a chattel mortgage in the sum of $30 upon two cows, without the plaintiff’s signature, and, as she claims, without her consent. At that time the husband owned five cows. Proceedings were being taken to foreclose this mortgage, when the plaintiff brought replevin, and took the cows into possession. The replevin cause was tried in justice’s court, and removed to the circuit, where, upon a trial before a jury, the defendant had verdict and judgment. The claim of the plaintiff on the trial was that these two cows were exempt, and that, therefore, the mortgage was void, under the provisions of section 1686, 2 How. Stat. That section provides that:

“The following property shall be exempt from levy and sale under anf execution, or upon any other final process of a court: * * * To each householder, * * * two cows,” etc.

Subdivision 9 of that section provides:

“And any chattel mortgage^ bill of sale, or other lien created on any part of property above described * * * shall be void unless such mortgage, bill of sale, or lien be signed by the wife of the party making such mortgage or lien,” etc.

It appeared upon the trial that this mortgage was given for a bona fide indebtedness of the husband; and the defendant introduced evidence tending to show that these cows had been mortgaged prior to that to one Wood. The defendant had an agreement with the husband of plaintiff that, if Mr. Wood would release his mortgage, he would give a mortgage to the defendant upon them. The defendant made the arrangement with Mr. Wood for the release, and went to plaintiff’s house. Her husband was not there; but the plaintiff was told by defendant that he had arranged for the discharge of the Wood mortgage, and that her husband promised to give him a mortgage on the same cows. The plaintiff then told him that anything her husband did about the matter was all right. The husband came home shortly after that, and defendant took a description of the two cows in plaintiff’s presence. She knew which two her husband was to mortgage. At that time she made no claim that these two cows were exempt. The five cows were there at that time, and all were owned by the husband. The next morning the mortgage was executed. Plaintiff made no objection to the giving of the mortgage, and made no claim then that these two cows were exempt. The plaintiff was called as a witness, and denied that she ever had any such talk with defendant, or that she was present when the description of the cows was taken by him to put into the chattel mortgage. The court submitted the question to the jury to find whether or not, under these circumstances, these two cows were exempt. The verdict was in favor of defendant for the amount of his lien under the mortgage.

Some questions are raised upon the ruling of the court in the admission and rejection of evidence upon the trial. We find no error in that.

It is claimed by plaintiff that under these circumstances the court should have directed the verdict in her favor. We think not. The court charged the jury as to the exemption as follows:

‘ ‘ Mr. Harley was a householder, and had a family, and was entitled to have two cows the law could not reach. It seems from the evidence he had five cows. Now, three of those cows could not be exempt, only two; and he is the one to determine which ones are to be exempt. The right of exemption rests with the man that owns the cows, the householder. If this was a levy of execution, then under the law it would be the duty of Mr. Harley to step forward and' claim which ones of five cows he should claim as exempt, and it would be the duty of the officers to hand out the cows that he claimed, and they might leave with the rest. This is not a levy under an execution, but a chattel mortgage, and he [Mr. Harley] is the man that should determine which he proposes are exempt. * * * He should do it when he gives the chattel mortgage.”

It is contended by counsel for plaintiff that the court was in error in this part of the charge; that the wife had the right to determine which two of the five cows should be exempt; and that a chattel mortgage without the wife’s signature is absolutely void, unless it appears that there are two remaining cows, not incumbered, which are satisfactory to the wife, — that is, that the wife may make the selection of exempt property, and that, the plaintiff here not having determined which two of the five should be exempt, the mortgage is void. This statute can have no such construction. The property belonged to the husband. He could not mortgage all the cows he owned without his wife’s signature to the mortgage, because, under this statute, two would be exempt; but the claim of exemption must necessarily rest with the husband. As stated by the court below, “If this was a levy of execution, it would be the duty of Mr. Harley to claim the exemption.” The husband would also have the right to determine which two of the five cows he would leave out of the chattel mortgage. The law gives the wife a remedy only when the husband fails to claim the exemption. The giving of the mortgage on the two cows was a selection of those which were not exempt. But the court went further than this in his charge. The testimony showed that these two cows had been mortgaged before; and, also, the defendant’s testimony showed that the wife knew just which cows her husband was giving the mortgage upon; that she made no objection, but, on the other hand, told the defendant that the giving of the mortgage by her husband was all right. The court thereupon left the question of the exemption to the jury as one of fact. Certainly, the rights of the plaintiff were fully protected under this charge; and, if either party had a right to complain of the charge, it was not the plaintiff.

The judgment must be affirmed.

The other Justices concurred.


text:
    HENDRICKSON v. VOSS.
    Witnesses — Fraudulent Conveyances.
    Where the complainant in a bill in aid of execution makes the defendant his witness, all of the latter’s testimony must be considered, and not that alone which tends to support complainant’s claim of fraud.
    Appeal from Houghton; Hubbell, J.
    Submitted October 15, 1897.
    Decided November 17, 1897.
    Bill by Ellen Hendrickson, administratrix of the estate of Thomas Hendrickson, deceased, against Frederick Voss and Theresa Voss, in aid of execution. From a decree ■dismissing the bill, complainant appeals.
    Affirmed.

      Dunstan & Hanchette, for complainant.

      A. R. Gray, for defendants.
   Long, C. J.

Complainant, as administratrix, obtained a judgment in the Houghton circuit court against Frederick Voss on August 15, 1894, for the sum of $1,248.16. Execution was issued on this judgment, and a levy made upon certain real estate on April 11, 1896, which the ■complainant claims was at that time owned by Frederick Voss. The title to those lands, prior to September 8, 1893, stood in the name of Frederick Voss, but was conveyed by him on that day to his wife, Theresa Voss, the other defendant in this cause. This bill is filed in aid of execution, and the claim of complainant is that the deed made by Voss to his wife was a voluntary one, given without consideration, and for the purpose and with intent to defraud creditors, and especially to prevent the complainant from the collection of her judgment. The defendants appeared and answered the bill. The claim made by the answer is that the lands so conveyed were and are the homestead of the defendants; that, while the consideration recited in the deed was $200, the real consideration was the sum of $1,450; that the lands are-worth not to exceed the sum of $2,500; that the quantity of land is less than 40 acres, and is not within the corporate limits of any village or city, and, as such homestead, is exempt from levy and sale on execution, so far as the homestead right is concerned; that the said Theresa Voss purchased the land in good faith, and paid a valuable consideration for the same, after deducting the homestead interest, which the said Frederick Voss had a right to-convey to her. It is further claimed that Frederick Vosswas at the time of the conveyance perfectly solvent, and had much more than sufficient property to pay all his indebtedness. The answer sets forth that the levy of the execution is a cloud upon the title of Theresa, and asks that the lands be freed therefrom. The cause was heard in open court, and, at the conclusion of the testimony, a decree was entered dismissing complainant’s bill, and directing a discharge of the levy of the execution, with costs in favor of defendants.

The claim made by the defendants as to the payment for the land was that, up to the time the deed was made, Theresa had advanced to her husband the sum of $1,250; that these advances were made from time to time, with the understanding that the husband should repay them. The complainant called both the defendants as witnesses, and examined them at great length about these advances made by Theresa. It appeared from the testimony of Mr. Voss that the parties were married in Germany, and came to this country soon after; that at that time Mrs. Voss had some money, and advanced it to him. They lived for a time in Detroit, and moved from there to Hancock. Mr. Voss went into business, and his wife kept a boarding house, earning some considerable money, and loaning it to her husband from time to time. In 1870 he had prospered in business, and was worth something over $25,000. This was lost in speculation in timber in the State of Wisconsin. Mr. Voss further testified that, in all, he had received from his wife $1,250, which he had agreed to repay her, and which he did by this deed of the homestead, and that the lands were worth about $2,500. This testimony stands uncontradicted upon this record. It is true that there are some inconsistent statements made by Mrs. Voss, but the testimony of Mr. Voss carried conviction of its truth. The circuit judge saw the witness and heard his testimony, and evidently believed his statement as to the amount of moneys advanced to him by his wife. The court below found that Mr. Voss had been receiving money from his wife from time to time as she had it; that the first she loaned him she had from her father, and under an agreement that her husband would pay it back; that in all he had received from her $1,250; that this was a fair consideration for the premises conveyed, when the homestead interest is deducted. It will not do for counsel for complainant now to accept such parts of the testimony of Mr. and Mrs. Voss as may be favorable to their theory of the fraud claimed to have been perpetrated in this conveyance, and reject and ignore what tends the other way. They made these parties their witnesses to show that the deed was made with the design to defraud the complainant. This was competent, but the whole of the testimony must be fairly considered. As was said in Darling v. Hurst, 39 Mich. 765:

“There is no warrant in law or reason for any arbitrary discriminations; and the circumstance that a defendant, on being called by complainant, testifies under the influence of interest, or under imputations of wrong-doing, gives no right to the complainant to accept what appears favorable to himself, and to reject or ignore whatever tends the other way.”

A large number of cases are there cited, sustaining this rule.

We are satisfied wich the conclusions reached by the court below, and the decree must be affirmed, with costs.

The other Justices concurred.


text:
    KETCHAM v. KENT CIRCUIT JUDGE.
    Practice — Court Rules — Notice to Defendant — Garnishment.
    Circuit Court Rule No. 35, providing that “a defendant who has appeared by notice of retainer or appearance shall be entitled to notice in advance of all future proceedings in the cause, although he may not have followed his appearance by plea or demurrer,” defines the practice in the single case where a party has appeared, but has not pleaded, and does not require the giving of notice in advance in any case where, under the old rules of practice, it was not necessary to apprise the opposite party in advance of the proceedings about to be taken. So held, where the principal defendant sought to have a writ of garnishment dismissed because he was not served in advance with notice of an intention to issue the same, or of the subsequent proceedings thereunder.

      Mandamus by Smith G. Ketcham to compel William E. Grove, circuit judge of Kent county, to quash certain garnishment proceedings.
    Submitted November 3, 1897.
    Writ denied November 17, 1897.

      Dwight Goss, for relator.

      Uhl, Hyde & Earle, for respondent.
   Long, C. J.

Abbie L. Weller, in November, 1896, commenced suit by summons against the petitioner. Defendant handed the summons to his' attorney, who served upon plaintiff’s attorney a notice of retainer. In February following, plaintiff caused a writ of garnishment to be issued in the cause against the Travelers’ Insurance Company. This writ was served. Narr. was filed in the original proceedings, and served on defendant’s attorney on February 4th. A bill of particulars was demanded, and served on defendant’s attorney, and on February 20th defendant filed and served plea of the general issue. On February 23d the insurance company filed its disclosure, stating that it had no property, goods, chattels, or effects in its hands or under its control belonging to the defendant in the principal suit, but that defendant had an accident insurance policy, and the company had received notice that defendant had been injured, and made claim for indemnity of $25 per week for 52 weeks. Interrogatories were filed and answered, and a demand for trial made of the issue whether the insurance company had property, etc., in its hands or under its control belonging to the principal defendant. The insurance company appeared by its own attorneys. In July the insurance company asked leave to file an amended disclosure, which was granted, and a disclosure was made showing that in September, 1896, said company received notice that the claim under the policy had been assigned to Emily B. Ketcham. The attorneys for the company then moved the court that Emily B. Ketcham appear in said cause, and be impleaded as a defendant to the garnishee action. This order was made, and served on Emily B. Ketcham. The attorney for the principal defendant (petitioner here), upon July 29th last, moved the court for an order dismissing the writ of garnishment and all proceedings thereunder, because no notice of the issuing of the writ of garnishment, or any of the proceedings thereunder, had been given the petitioner or his attorney. This was denied, and the petitioner now asks that the court be directed to quash such writ, and all the proceedings in garnishment. The claim is that Cir. Ct. Buie No. 35 requires the service of such papers and proceedings. That rule provides:

“No service of papers shall be necessary on a defendant who has not regularly appeared, except as specially required by rule or statute. But a defendant who has appeared by notice of retainer or appearance shall he entitled to notice in advance of all future proceedings in the cause, although he may not have followed his appearance by plea or demurrer.”

This rule is an amendment of former Buie 8, which, among- other things, provided:

“No service of notice or papers in the ordinary proceedings in a cause shall be necessary to be made on a defendant who has not appeared therein, and given notice to the plaintiff’s attorney of his intention to defend the suit, except where the defendant is returned imprisoned for want of bail,” etc.

The contention of counsel for the petitioner is that under this new rule he was entitled in advance to notice of the intention to issue the writ of garnishment, and all future proceedings in garnishment, and that such proceedings are only ancillary to the principal proceedings, and are proceedings in the principal cause, within the meaning of Rule 35.

The rule can have no such construction. It is not Rule 35 that settles the practice as to service of notice of proceedings and papers in a cause. Other rules provide for that. Rule 35 defines the practice in a single case, namely, when a party has appeared, but has not pleaded. The rule does not undertake to define the practice, but to modify the common-law practice in certain particulars. The practice is well stated in 1 Burrill, Prac. 345:

“It is a general rule that each of the parties to an action is constantly entitled to due notice of the proceedings of the other; and, if the notice be omitted, the proceedings may be set aside as irregular. The only exception to this rule is in the case where a defendant has not appeared in the action (unless he be returned ‘ imprisoned for want of bail’). In the most general view of the subject, notices are to the effect that certain proceedings either have already taken place or will take place on some future day designated. Of the former description are notices of bail, of the entry of common rules, and of other similar formal proceedings which are required by the standing rules of practice, and of which, therefore, it is not necessary for the opposite party to be previously apprised. Of the latter description, which may be termed ‘prospective notices,’ are notices of trial, of motion, and of other similar proceedings, on which the opposite party has a right to be heard before the full benefit of the notice can be obtained.”

It was not the intent of Rule 35 to compel the giving of notices in advance in any case where, under the old rules •of practice, it was not necessary to apprise the opposite party in advance of the proceedings about to be taken. If the interpretation for which petitioner contends were to be given to the rule, then a writ of attachment issued in a cause in continuation of suit would be of no validity unless notice were given in advance to a defendant who had either appeared or had served notice of retainer. So with the issuing of the writ of garnishment. In such case the very advantage sought by the writ would possibly be of no avail, as a disposition could be made of the fund or property before service could be had. Garnishment proceedings are but auxiliary to the principal suit. It has never been the practice in this State to give the principal defendant notice of the steps taken in the garnishment proceedings.

The court below was not in error in denying the motion. The writ is denied.

The other Justices concurred.


author: Per Curiam.

text:
    SERVISS v. BOARD OF PUBLIC WORKS OF DETROIT.
    Municipal Corporations — Private Plats — Conformity to General Plan.
    Section 304 of the Detroit charter, making it the duty of the board of public works to prepare a general plan of laying out into streets and alleys all unplatted lands within the city limits, and providing that no private plan shall be permitted which does not conform thereto, justifies the board in refusing to approve a private plat, where portions of the lands platted therein would be within the limits of a public street if such street should be extended according to the general plan. Van Husan v. Heames (unreported), followed.

      Certiorari to Wayne; Carpenter, J.
    Submitted November 3, 1897.
    Decided November 17, 1897.

      Mandamus by Clark A. Serviss and others to compel the board of public works of the city of Detroit to approve a plat of lands. From an order denying the writ, relators bring certiorari.

    Affirmed.

      Walker & Spalding, for relators.

      C. D. Joslyn, for respondent.
   Per Curiam.

The relators were denied mandamus to compel the respondent to approve a plat of certain lands in the city of Detroit, which was refused by the respondent because portions of the lands platted covered premises which would be within the limits of a public street if said street should be extended according to the plan adopted by the board under section 304 of the city charter. A copy of the provision relied on will be found in the case of Van Husan v. Heames, 91 Mich. 519. That case was before this court twice, upon different plats. The first raised the identical question in this case, and, while unreported, the record shows the following memorandum: “Denied, * * * because relator, under the statute, cannot plat lots within the line of proposed streets. Relative to dedication of streets and alleys not passed upon.”

The order of the circuit court is affirmed.


text:
    PEOPLE v. MAGUIRE.
    Insane Persons — Commitment to Asylum — Appeal.
    Where, pending an appeal from an order committing one accused of crime to the asylum for the dangerous and criminal insane, the respondent is discharged from the asylum, and the criminal case against him nolle prossed, ^ the appeal will be dismissed without a determination of the questions raised.
    Error to Calhoun; Smith, J.
    Submitted November 4, 1897.
    Decided November 17, 1897.
    Eugene Maguire was adjudged insane, and committed to the asylum for the dangerous and criminal insane at Ionia, from which order he appeals.
    Appeal dismissed.

      Mains & Cavanagh, for appellant.

      Andrew W. Lockton, Prosecuting Attorney, for the people.
   Per Curiam.

On April 27, 1897, the respondent was arrested upon the charge of willfully and maliciously setting fire to and burning the county jail of Calhoun county. He waived examination before the justice, was held for trial to the circuit court, and in default of bail was committed. On April 8th of the same year, his son filed a petition in the probate court, alleging the insanity of his father, and praying that he be adjudged insane, and confined in the. asylum at Kalamazoo. According to the brief of his counsel, he was .then confined in the county jail, under a conviction as a disorderly person. A hearing upon that petition was fixed for May 3d. Physicians certified to his insanity, but those proceedings were abandoned. June 11th the prosecuting attorney presented a petition to the circuit court, setting up these proceedings and the arrest of respondent, and the pendency of the criminal cause against him, attached the affidavits of the physicians, and prayed that a determination be had as to his alleged insanity by the circuit judge, in accordance with the statute. A hearing was had, and the respondent adjudged insane, and committed to the asylum for the dangerous and criminal insane. He has appealed from that decision to this court, alleging irregularities in the proceedings, and attacking the constitutionality of Act No. 119, Pub. Acts 1895.

It is conceded by counsel that the respondent has been discharged from the asylum, and the criminal case against him nolle prossed. He is therefore in the full enjoyment of his liberty. He can gain nothing by reversal, for there is nothing to try if the case is reversed. An order releasing him would be a nullity, as he has been already released. There is no good purpose to be subserved by a determination of the case.

The appeal is therefore dismissed.


text:
    PEOPLE v. THIELMAN.
    ■ Holidays — Intoxicating Liquors — Illegal Sale — Statutes.
    Prior to the enactment of Act No:' 185, Pub. Acts 1893, the statute as to legal holidays (1 How. Stat. § 1591) provided that, in case any of the holidays should fall upon a Sunday, then the Monday following should be considered as the said holiday. By the amendatory act of 1893 it was provided that, whenever certain specified holidays (including the Ith day of July) should fall upon Sunday, the Monday following should be deemed a public holiday “for all or any of the purposes aforesaid.” Respondent, who was' convicted under an information charging him with keeping his saloon open “on Monday, the 5th day of July, 1897, * * * a legal holiday,.” appealed, contending that the selling of liquor was not a purpose specified, in the act of 1893, and that, under the terms of that statute, a Monday following a legal holiday could be treated as a holiday only for the purposes specified in the act. Held, that the act should not be so construed, and that the respondent, in selling liquor on the day charged, violated 3 How. Stat. § 2283e, requiring saloons to be closed on all “legal holidays.”
    Exceptions before judgment from Ottawa; Padgham, J.
    Submitted November 4, 1897.
    Decided November 17, 1897.
    William Thielman was convicted of keeping his saloon open on a legal holiday.
    Affirmed.

      Walter I. Lillie, for appellant.

      Fred A. Maynard, Attorney General, and Arend Visscher, Prosecuting Attorney, for the people.
   Long, C. J.

Respondent was convicted in the Ottawa circuit court on a trial before a jury, and the case comes into this court on exceptions before sentence. It appears that the respondent was keeping a saloon in the city of Grand Haven, and the information charged him with keeping it open, and not closed, “on Monday, the 5th day of July, 1897, said 5th day of July, 1897, being then and there a legal holiday, commonly called the ‘Fourth Day of July.”’ The testimony was uncontradicted that the respondent did keep his saloon open on that day, and made sales of liquors there, the same as upon other days. The only question raised upon the trial, and the only question here, is whether Monday, the'5th day of July, 1897, was a legal holiday, within the meaning of the statute prohibiting the opening of saloons and the sale of liquors on legal holidays. The 4th day of July fell on Sunday.

Section 17, Act No. 313, Pub. Acts 1887 (the general liquor law), being section 2283c, 3 How. Stat., provides:

‘ ‘ All saloons, restaurants, bars, in taverns or elsewhere, and all other places, except drug stores, where any of the liquors mentioned in this act are sold or kept for sale, either at wholesale or retail, shall be closed on the first day of the week, commonly called Sunday, on all election days, on all legal holidays,” etc.

This provision as to closing saloons, etc., on legal holidays was first introduced into the statutes by Act No. 267, Pub. Acts 1879, and has been continued in- the liquor statutes since that time.

Act No. 124, Laws 1865, is entitled:

“An act to designate the holidays to be observed in the acceptance and payment of bills of exchange and promissory notes, in the holding of courts, and relative to the continuance of suits.”

Section 1 of the act provides that—

“The following days, viz.: The first day of January, commonly called New Year’s Day, the fourth day of July, the twenty-fifth day of December, commonly called Christmas Day, and any day appointed or recommended by the governor of this State or the president of the United States as a day of fasting and prayer or thanksgiving, shall, for all purposes whatsoever as regards the presenting for payment or acceptance, and of the protesting and giving notice of the dishonor, of bills of exchange, bank checks, and promissory notes, made after the passage of this act, also for the holding of courts, be treated and considered as is the first day of the week, commonly called Sunday,” etc.

This act was amended in 1875, in 1881, and by Act No. 77, Pub. Acts 1893. Section 1 of the amendatory act of-1893 also includes other days designated as legal holidays in addition to those enumerated in the act of 1865, and further provides that, “in case any of the holidays shall fall upon a Sunday, then the Monday following shall be considered as the said holiday.” This last provision was first introduced into the statute by Act No. 163, Pub. Acts 1875, and has continued therein to the present time, unless it may be said that there is a limitation placed upon it by Act No. 185, Pub. Acts 1893 (which was an act passed later in the session of that year than Act No. 77), again amending section 1 of the act, and adding a new section.

It will be seen that, at the time the liquor law of 1879 was passed, the statute as to legal holidays provided that, “in case any of the holidays shall fall upon a Sunday, then the Monday following shall be considered as the said holidayso that the legal holidays upon which all saloons, etc., were to be kept closed, included such Mondays, which were made by the act legal holidays. This continued up to the time Act No. 18.5, Pub. Acts 1893, took effect. By the first section of the act, the 1st day of January, 22d day of February, 30th day of May, 4th day of July, 1st Monday of September (called Labor Day), and the 25th day of December are designated as holidays.' Section 1 also provides that every Saturday, from 12 o’clock noon until 12 o’clock at night, shall be designated a half-holiday; and the same section strikes out from the act the proviso that, in case any of the holidays shall fall upon a Sunday, the Monday following shall be considered as the said holiday. In section 2 is inserted the following:

“Whenever the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, or the twenty-fifth day of December shall fall upon Sunday, the next Monday following shall be deemed a public holiday for all or any of the purposes aforesaid.”

Counsel for respondent contends that the words “for all or any of the purposes aforesaid ” are words of limitation upon the act, so that a Monday following a legal holiday can be treated as a holiday only for the purposes specified in that act, and that, therefore, such a Monday is not a legal holiday, in contemplation of the liquor statute.

By section 17 of the liquor statute, heretofore quoted, saloons, etc., must be closed on all holidays. This statute does not provide that any specified day shall be a holiday. To ascertain what days are holidays, we must look to the statutes providing for such days. This added clause to section 2 is of no more significance than the title of the act itself, and no more limits the liquor act than does that title. That title, as passed in 1865 and since continued in all the acts, is, “To designate the holidays to be observed in the acceptance and payment of bills of exchange and promissory notes, in the holding of courts, and relative to the continuance of suits.” In Reithmiller v. People, 44 Mich. 280, the respondent was convicted of an illegal sale of liquor on Christmas Day, it being alleged that the day was a legal holiday, on which such sales were forbidden. The conviction was sustained. The court, in speaking of the liquor statute, said:

“It is true that the statute does not enact in so many words that any specific day shall be a holiday. But that is not important. The past and present provisions concerning privileged days, including this act of 1879, are to our present purpose in pari materia, and are to be considered together, and the identical days contemplated by the legislature may be ascertained by such examination.”

The court said further:

“Were Christmas Day to be excluded on the ground contended for, it would follow unavoidably that nothing could be retained to answer to the call for ‘legal holidays.’ The ground taken for excluding Christmas would, according to the necessary meaning of the context, equally ex-, elude all other days possibly capable of being classed under the head of ‘legal holidays,’ and leave nothing whatever for that phrase to apply to.”

In People v. Ackerman, 80 Mich. 588, the respondent was convicted of keeping open a saloon on April 30, 1889. That day had been designated by the governor as a day of thanksgiving and praise. It was known as Centennial Day. It was held that this was a legal holiday, within the meaning of section 17, Act No. 313, Pub. Acts 1887, as fixed by the statutes defining legal holidays.

That clause 2 of the act of 1893 cannot be given the construction contended for by counsel is made more apparent when, we examine the provisions of section 1 making Saturday afternoons half-holidays for certain purposes, as, in the latter part of the section, it is provided that—

“Nothing herein contained shall be construed to prevent or invalidate the entry, issuance, service, or execution of any writ, summons, or confession of judgment, or other legal process whatever, holding courts, or the transaction of any laivful business, except banking, on any of the Saturday afternoons herein designated as half-holidays.”

Bo that on those half-holidays any lawful business may be carried on, except such as is specifically designated in that section.

The conviction must be affirmed, and the court below is directed to proceed to judgment.

The other Justices concurred.


text:
    JOHN A. TOLMAN CO. v. REED.
    1. Contracts — Place op Performance.
    A contract of guaranty dated in Illinois, signed in Michigan, .and mailed to the guarantee in Illinois, where payments, if any, are to be made, is an Illinois contract.
    2. Same — Conflict of Laws — Review on Second Appeal.
    The Illinois Supreme Court held that there was no liability under a contract of guaranty upon the same facts on which the Michigan Supreme Court reached a contrary conclusion. Upon a second appeal to the latter court, the question of the place of the contract was raised for the first time, and it was determined that it was an Illinois contract. Held, that the decision should be ruled by the construction given to the contract in the Illinois court.

    Error to Kent; Grove, J.
    Submitted October 6, 1897.
    Decided November 23, 1897.

      Assumpsit by the John A. Tolman Company against Ransom Reed and M. Francis Griffin on a contract of guaranty. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Hatch & Wilson, for appellants.

      Fletcher & Wanty, for appellee.

      The conclusiveness of prior decisions on subsequent appeals is considered, and a great number of decisions thereon collected, in a note to Hastings v. Foxworthy, (Neb.) 34 L. R. A. 321.

   Moore, J.

This case involves the construction of a contract of guaranty. The case has been here before, and is reported in 111 Mich. 301, so that a full statement of facts will not be necessary. The contract was then held to be a valid one, but it was also held that the guarantors were not liable for indebtedness of Mr. Yisner to the guarantee arising outside of his employment. In the last trial the judge followed the directions of this court, and the jury found in favor of the plaintiff. Defendants' appeal.

The questions of fact in the second trial are the same questions that were involved in the first trial. It 'has been repeatedly held that this court will not review its previous decisions made in the same cause on the same state of facts. Mynning v. Railroad Co., 67 Mich. 677; Hickox v. Railway Co., 94 Mich. 237; People’s Savings Bank v. Eberts, 96 Mich. 396. A new element, however, presents itself in the case, a question which was not raised when the case was here before. After the first trial in the lower court, and while the case was pending here, the supreme court of Illinois, in a similar case not then reported, held the guarantors not liable. John A. Tolman Co. v. Rice, 164 Ill. 255. It is now said that, notwithstanding this court has so construed the contract as to justify the action of the circuit court in the second trial, it ought to reverse its former decision, for the reason that the contract of guaranty is an Illinois contract, and should be construed according to the law of Illinois, as declared by the supreme court of the State. Is the contract an Illinois contract ? It is dated in Chicago. It was signed in this State, and mailed to plaintiff at Chicago from Grand Rapids, and, by its- terms, the guarantors agreed that any amount which shorild become due upon the contract should be paid at the office of the plaintiff in Chicago. Its delivery was required before the plaintiff would enter upon its undertaking with Mr. Visner. We think it an Illinois contract. Baum v. Birchall, 150 Pa. St. 164 (30 Am. St. Rep. 797); Phoenix Mut. Life Ins. Co. v. Simons, 52 Mo. App. 357; Milliken v. Pratt, 125 Mass. 374 (28 Am. Rep. 241); 1 Beach, Cont. § 592. If the contract were a Michigan contract, we should still think our duty was to construe it as we did when it was here before. It was not then claimed that the contract was an Illinois contract, and invalid by the laws of Illinois, so that the question now presented to us is here for the first time.

The law is well settled that contracts must be construed and their validity determined by the law of the country where they were made, unless the contracting parties clearly appear to have had some other law in view.

‘ ‘ If valid there, the contract is valid elsewhere; but, if void or illegal' there, it is void everywhere. * * * This rule is founded not merely in convenience, but in the necessities of nations and states; for otherwise it would be impracticable for them to carry on an extensive' intercourse and commerce with each other. The whole system of agencies, of purchases and sales, of mutual credits, and of transfers of negotiable instruments rests on this foundation; and, in sustaining the principle, there seems to be a unanimous consent of all courts and jurists, foreign and domestic.” 1 Beach, Cont. § 590; Campbell v. Nichols, 33 N. J. Law, 81; Guignon v. Trust Co., 156 Ill. 135.

There are exceptions to this general statement, not necessary to mention now, for the reason that this case does not come within any of the exceptions.

Does the fact that this court would hold a Michigan contract containing the same terms to be a valid contract prevent its following the construction given to the Illinois contract by tbe Illinois court ? The case of Phoenix Mut. Life Ins. Co. v. Simons, 52 Mo. App. 357, was a case where the court held a married woman liable upon her contract, which was held to be a Kansas contract, because, under the laws of Kansas, she could enter into such a contract, though a contract executed under the same circumstances in Missouri would be void. In the case of Waters v. Cox, 2 Ill. App. 129, the court held that the construction given to a Michigan contract by the Michigan courts must be followed, though that construction was contrary-to the construction given to like contracts by the Illinois courts. In the case of Forepaugh v. Railroad Co., 128 Pa. St. 217 (15 Am. St. Rep. 672), there is a very full and able discussion of the question at issue here; and it was there held that a New York contract would be construed the same as the New York courts would construe it, though a Pennsylvania contract containing like terms would be construed by the Pennsylvania courts just the other way. There is no great hardship in this. The plaintiff insisted upon having an Illinois contract. Now that it cannot enforce its contract in the courts of Illinois, is it just or right that, by coming before the courts of this State, it shall be able to enforce a contract it has seen fit to make, when it is void by the law of the country where 'it was made ? To allow this to be done would give rise to great uncertainty and confusion. Story, Confl. Laws, § 278, quotes with approval the opinion of Chief Justice Parker in Blanchard v. Russell, 13 Mass. 1 (7 Am. Dec. 106):

“That the laws of any State cannot, by any inherent authority, be entitled to respect exterritorially, or beyond the jurisdiction of the State which enacts them, is the necessary result of the independence of distinct sovereign-ties. But the courtesy, comity, or mutual convenience of nations, amongst which commerce has introduced so great an intercourse, has sanctioned the admission and operation of foreign laws relative to contracts. So that it is now a principle generally received that contracts are to be construed and interpreted according to the laws of the State in which they are made, unless from their tenor it is perceived that they were entered into with a view to the laws of some other State. And nothing can be more just than this principle; for, when a merchant of France, Holland,, or England enters into a contract in his own country, he must be presumed to be conusant of the laws of the place where he is, and to expect that his contract is to be judged of and carried into effect according to those laws; and the merchant with whom he deals, if a foreigner, must be supposed to submit himself to the same laws, unless he has taken care to stipulate for a performance in some other country, or has in some other way excepted his particular contract from the laws of the country where he is.”

Judgment should be reversed, and new trial ordered.

The other Justices concurred.


text:
    HOWLETT v. HOWLETT.
    Deeds — Indefinite Conditions — Enforcement in Equity.
    A condition in a deed from a husband to his wife that it shall be void unless she lives in harmony with Mm, or if, she makes him any more trouble about money previously loaned by her to him, is too indefinite to be enforced in equity.
    Appeal from Kent; Adsit, J.
    Submitted October 7, 1897.
    Decided November 23, 1897.
    Bill by William Howlett against Ellen M. Howlett to set aside a deed. From a decree for complainant, defendant appeals.
    Reversed.
    Complainant and defendant were married February 8, 1852; he being then 35, and she 16, years of age. Her father had previously died, and about the same time a brother also died. From those estates she received $600. or $700, which, with her consent, her husband took and used in paying his own debts and in improving his land. He then owned 120 acres of land, and subsequently purchased 80 more. They had 14 children, 11 of whom are living. Complainant is now 80 years old, and enfeebled in both body and mind. As the children became of age, they left home to work for themselves. Sometime in 1887 she desired her husband to pay her the money he had received from her when they were married. It was finally agreed that he should deed to her a part of his land, — she claiming that he was to deed her 80 acres; and he, that he was to deed her 40 acres. A deed of the 40 acres was made, without condition, September 16, 1887. On October 7th following, a deed of the second 40 acres was made, the consideration of which was stated to be $1,300, and which contained the following remarkable provision:
    “This deed is made pursuant to an agreement this day made between said parties that they will hereafter live together in harmony; and the said grantee hereby expressly covenants and agrees that the consideration is such that if she shall not so live in harmony with the grantor, or if she shall make him any more trouble about the sum of money she let him have some 40 years ago, then and in such case this deed shall be void, and the lands hereby conveyed shall revert to, and become the property of, the said Wm. Howlett, and she agrees to execute a proper donveyance thereof upon demand; but if no such demand shall be made,'- and no bill in equity filed to set this deed aside during the life of the grantor, as evidence of such demand, which it is agreed shall be the only evidence of such demand, the record of this deed shall be conclusive evidence that no such demand was ever made, and conclusive evidence of title in said grantee.”
    At the samó time she executed to him a life lease of both 40’s.
    Complainant filed this bill to set aside the latter deed on account of her failure to comply with this provision. The case was heard upon, pleadings and proofs taken in open court, and a decree entered setting aside the deed, and declaring it null and void.

      C. O. Smedley (Benn M. Corwin, of counsel), for complainant.

      McKnight & McAllister, for defendant.
   Grant, J.

(after stating the facts). 1. We feel compelled to disagree with, the trial court in its conclusion of fact. The complainant has, on account of a permanent disease, been unable to perform manual labor to any extent for nearly 20 years, and is enfeebled in both mind and body. The defendant has done the work indoors, and considerable outdoors, upon the farm. There is apparent justice in her demand. Complainant evidently recognized it, by giving the deed. He, however, took back a life lease of both tracts at the time the second conveyance, was made. He therefore obtained the entire benefit of the land during his life. She has obtained no more than she is justly entitled to. The only testimony against the defendant comes from some of her ‘own children. Much of their testimony is unworthy nf belief. The complainant does not support it. The most of it has no bearing upon the merits of this controversy. It is apparent that complainant is acting, not of his own free will, but under the influence of some of his children, who fear that their mother will not give them their portion of the land.

Complainant and defendant have lived upon this' farm for 45 years. All their neighbors, and those who have been employed to work for them, testify that complainant and defendant lived peaceably and happily, and that there was not even a rumor in the neighborhood of any disagreement between them. Their family physician, Dr. John Cooper, who had known them and been their physician for nearly 20 years, testified that after this trouble began he talked with Mr. Howlett in regard to settling the matter with his Wife, and that Mr. Howlett said that the children would not consent to such a settlement as was proposed. Mr. Howlett practically admits that he filed this bill to secure the land for his children. The only testimony elicited from him, in his entire direct examination, tending to show fault on her part, was: “Well, it was every little while she was telling me that she wanted more land; she wanted this other 40.” According to her testimony, she was entitled to it under the oral agreement when the first 40 was deeded, and the second deed was made pursuant to that agreement. She testified that she knew nothing about this condition at the time, and that the deed was not read to her.

It appears that she had applied to the probate court for the appointment of a .guardian of her husband, on the ground that he was incompetent to manage his business. This was not a violation of the condition. There is no reliable testimony to show that she did not act in good faith in so doing.

2. Counsel agree that this clause was a condition subsequent. But, whether a condition or covenant, it is not enforceable in a court of equity. The real consideration was the money, and its use, which he had received from her. He may have thought by this clause to prevent further allusion to a subject so painful to him. No specific performance of such an agreement could be enforced, and courts of equity will not enforce it by declaring a forfeiture. It is too indefinite. Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142). It is not parallel to the cases cited, where deeds have been set aside for the failure of grantees to support their grantors contrary t.o the terms of the deeds. In those cases the courts hold that there was an entire failure of consideration. How much inharmony, how much trouble about the money, must the court find, in order to declare the forfeiture ? What shall constitute inharmony or trouble ? If she be found to have spoken to him about the money, or to have asked for more land, shall the court of equity declare that this constitutes inharmony or trouble, within the terms of the condition ? If he were the cause of the inharmony, or if both have contributed to the inharmonious condition, — which is frequently, if not usually, the case, — what shall be the solemn decree of the court? These questions, and others which will readily suggest themselves, show the absurdity of bringing such controversies into a court of equity. They have no place there, and parties cannot, by covenant or condition or agreement, submit them to courts of equity. It is doubtful if ejectment could be maintained for breach of such a condition, which has nothing to do with the land conveyed. Stevens v. Copp, L. R. 4 Exch. 20. The condition is an act which, at most, is only collateral to the grant, and cannot be estimated in damages. With such cases equity does not interfere. Tied. Real Prop. § 279; 2 Story, Eq. Jur. § 1324. We are satisfied that the complainant has failed to make out a case of the violation of this condition in the deed, even if it were binding upon her, and equity were the proper forum in which to enforce the remedy.

Decree reversed, and decree entered for defendant, dismissing complainant’s bill, with the costs of both courts.

The other Justices concurred.