author: Moore, J.

text:
      In re SWEETSER’S ESTATE.

    1. Executors and Administrators — Construction of . Trust Deed—Jurisdiction of Probate Court.
    Where a trust deed is made by legatees to - an executor, to enable him to carry out the provisions of the will, both instruments should be construed together, to arrive at the full meaning of the deed, and, therefore, the probate court has jurisdiction of a controversy arising thereunder between the trustee and the heirs of the beneficiaries of the trust.
    3. Same—Failure to Account.
    An executor who has in his hands a large fund belonging to the estate, as shown by his last accounting to the probate court, may be required by such court, under 2 How. Stat. § 6809, upon his failure to submit the further reports provided for by 2 How. Stat. § 5957, to render an accurate account of all property in his hands as such executor, although the legatees have made him a trustee of the entire estate for the purpose of carrying out the provisions of the will.

      Certiorari to St. Clair; Eldredge, J., presiding.
    Submitted January 7, 1896.
    Decided May 12, 1896.
    In the matter of the petition of Mehitable D. Sanborn, upon appeal from the probate court, the circuit judge entered an order requiring John P. Sanborn, as executor of the estate of Mary Jane Sweetser, deceased, to render an account and to file a new bond, and from this order he brings certiorari.

    Affirmed.

      A. R. Avery and O’Brien J. Atkinson (N. E. Thomas and IT. M. Duffield, of counsel), for plaintiff in certiorari.

      H. W. Stevens (Elbridge E. Bacon and P. H. Phillips, of counsel), for defendant in certiorari.

       Rehearing denied July 8, 1896.

   Moore, J.

Alvah Sweetser and James W. Sanborn, for many years prior to 1869, were associated in business as lumbermen, merchants, and bankers, at the city of Port Huron, under the firm name of Sweetser & Sánborn. They owned lumber lands in nearly all the pine counties of the State, to some of which they had full title, but much the larger portion were owned in common with other persons and firms. Sweetser died in 1869, leaving all his property to his wife, Mary Jane Sweetser, who was a sister of Sanborn. After Sweetser’s death the business was carried on under the firm name of James W. Sanborn & Co. James W. Sanborn died in April, 1870, leaving a will by which John P. Sanborn and Newell Avery were made his executors and trustees.

Mary Jane Sweetser died in October, 1870, leaving a will, and an estate which was subsequently appraised at upwards of $205,000. By the terms of her will, made in May, 1870, she created specific bequests to the extent of $209,000. She also made provision, in the final item of the will, that the residue of the estate, after payment of all debts and legacies, should be divided equally between four ecclesiastical societies named, and that John P. San-born and Newell Avery should be executors. October 1, 1870, she made a codicil revoking the final item of her will, and providing for the disposal of the residue of the estate in equal parts among her four brothers and sisters, or their heirs. It is claimed that this codicil revoked the appointment of the executors, previously named.

It was apparent to both executors that the estate would not pay the legacies and debts, if closed up in the course of ordinary proceedings in probate court; and as substantially all’ the estate was held in jointure with the Sanborn estate, in which they had qualified as executors and trustees, and Avery was also personally interested in many of the lands, they did not feel at liberty to accept administration of the estate unless matters were so arranged that the general business .could be continued in the manner it had formerly proceeded. As all persons interested in the estate wished the business to be continued, a conveyance was made by the residuary legatees named in the codicil, by the terms of which the entire estate was conveyed in fee simple to Sanborn and Avery in trust to carry out the provisions of the will. The habendum and tenendum clause of said deed reads as follows:

“To have and to hold the same, however, in trust, and to and for the uses and purposes of performing and carrying out the provisos, interests, and purposes of the said will of the said Mary J. Sweetser, and for no other purpose, and to which said will special reference is hereby made, with the same effect as though the same were set out herein at length; and this conveyance is upon the further trust, use, and benefit of, all and singular, the legatees and beneficiaries entitled under and by virtue of said will of said Mary J. Sweetser, that any, each, and all of the said legatees and beneficiaries may release and acknowledge payment to the said parties of the second part, in their capacity of and as such executors, of their respective legacies or bequests so contained in said will, and the same shall still be payable under and by virtue of this conveyance and disposition, the same as it would were a power of sale contained in said will; and this conveyance is made to the end and purpose that the terms, conditions, and provisos in said will may be carried out and performed under this conveyance, and to the same effect, and upon the further trust and authority that the parties of the second part proceed and sell, either at public or private sale, as soon as possible without necessary loss from any disposition or conversion of property into money, and to make, execute, acknowledge, and deliver all necessary and proper deeds, conveyances, and bills of sale, of, all and singular, said property, real, personal, and mixed, whereby the purchaser or purchasers shall have conveyed to them all such title and interest in „said estate and property as the said Mary J. Sweetser might or could have conveyed in her lifetime. And the said parties of the second part, in the execution of this trust, and the payment of the legacies as provided for in said will, and in all their duties hereunder, shall and will perform the same in all respects, and be governed in all their acts, the same as they would, and as the law requires of them, under said will, did the same contain the same powers of disposition and sale as is above specified and set forth.”

This deed was recorded.

On the date of the execution of the deed, application was made to the probate court for the allowance of the will, and it was admitted to probate. Sanborn and Avery gave separate bonds as executors, each in the sum of $50,-000. The sureties on Sanborn’s bond were John Hibbard and John Johnston; the former of whom is now dead, and the latter insolvent. In 1875 the executors filed accounts in the probate court for the years 1871 to 1874, inclusive; and from time to time statements of account were filed and allowed by the probate court until and including the year 1882. These statements, after the death of Avery, which occurred in 1877, were made and filed by John P. Sanborn, who represented himself as sole executor. The last account filed shows a balance of personal property remaining in Sanborn’s hands amounting to $63,103.23. Afterwards, in 1885, Sanborn furnished to one of the parties interested in said estate a memorandum of property in his hands belonging to the estate, showing land contracts, mortgages, bills receivable, etc., drawing interest, at $91,-000, and real estate valued at $116,465.

Two of the original residuary legatees were Peter San-born and Hannah Merrill, both of whom died some years ago, leaving as an heir at law William H. Sanborn, who likewise died in 1892, leaving as his heir at law Mehitable D. Sanborn, his mother. Mehitable D. Sanborn is the petitioner in this proceeding. January 10, 1893, she filed a petition in the probate court of St. Clair county, asking that John P. Sanborn be required to file a new bond and an account in the probate court as executor of the estate of Mary Jane Sweetser, deceased. The probate court ordered Sanborn to file a new bond in the sum of $50,000. Sanborn appealed to the circuit court, and the said court made an order requiring him to give a new bond in the sum of $100,000, and to file in the probate court of St. Clair county his account as executor, within 30 days. Sanborn took no exceptions to the findings of fact of the circuit judge, but did except to the conclusions of law based upon such findings.

The appellant alleges—

“That the petitioner, Mehitable.Sanhorn, had no such interest in the estate as authorized her to file a petition under 2 How. Stat. § 6006, which provides 'that such order may be made ‘ on the petition of any person interested ; ’ that it is undisputed that whatever right William H. Sanborn had in the estate of Mary Jane Sweetser, as heir of two of the residuary legatees, descended to the petitioner, but it is claimed by the appellant that the legal title to the property of the said estate was in John P. Sanborn, under the trust deed, and therefore there was no realty to descend to the petitioner, and her only remedy is in equity.”

The appellant further alleges that the circuit court erred in the conclusion that appellant holds the residue of the estate of Mary Jane Sweetser in his capacity as executor, and must account for it to the probate court, when he in fact holds such estate as a trustee, and not as an executor, and can only be compelled to account for it in a coui’t of equity; that Sanborn and Avery held all the property of the estate under the trust deed, as trustees, and in no sense as executors, except so far as necessary to pay the expense of administration, debts, and legacies; and, as these had all been paid long before the filing of the petition in this cause, that the probate court was powerless to act in the premises. It is claimed that the petitioner in this proceeding in probate court gets whatever right she has as the heir at law of two of the residuary legatees named in the will of Mrs. Sweetser, and that, as these residuary legatees had joined in a trust deed to Sanborn and Avery, whatever she gets comes as from a trust fund in the hands of Sanborn, not as executor under the will, but as trustee under his trust deed, and that the accounting must be had between the petitioner and the trustee, not in probate court, but in a court of equity. It is also claimed that there is nothing in the probate court to which a bond could attach, and no accounting in that court could relieve the trustee of his trust; that it was a personal trust, which could be fulfilled only by performance or surrender to the beneficiaries; that it could not be surrendered to the probate court; that, the title to all the estate being in these trustees, there was nothing from it which descended on the death of the residuary legatees, through which petitioner claimed; and that, therefore, she bore no such relation to the estate as to give the probate court jurisdiction to act upon her petition.

The petitioner contends that the giving of the trust deed by the residuary legatees, for the purpose of conferring power on the executors of conveying the real estate without an application to the probate court, was simply to enable the trustees to carry out the provisions of the will; that the trust deed and the will are to be read together, and that, when so read, the construction to be given them is that, instead of creating a trust, they simply conferred a power; that the probate court did not lose jui’isdiction, but should retain it, and had the right to cite the executors, subsequently appointed, into the court to render a statement of their account, or to exact from them additional security by giving a new bond; that it is sufficient if such an interest is shown as satisfies the court that, if the fund is lost or depreciated by the executor or trustee, petitioner will be injured; that in rendering an account, or giving a new bond, the party rendering such account or furnishing such bond does not give up or surrender any vested rights; that the court will not stop to consider the question of what tribunal should wind up the estate, but, it being apparent that the appellant has come into the possession of property upon the strength of his appointment as executor, and that he has given a bond therein, he must, of necessity, be required to keep that bond good by furnishing sufficient sureties as often as the court directs him so to do, and he must also render an account as often as the court may desire to inquire into the condition of affairs; that an order requiring an executor to give a bond or to file additional security is not appealable, and that an order requiring an executor to file an account cannot be appealed from, provided that it appear that there is an estate pending in the probate court 'which is unsettled; that the extent of the interest of a person filing a petition in a matter of this character cannot be litigated in a proceeding asking for the filing of an account, or seeking additional security. The petitioner also raises the question as to whether the appellant, by the action which he has taken, is estopped from denying the jurisdiction of the probate court.

The case comes to this court on certiorari, the parties asking the relief previously stated.

The important question involved in this case—that is, whether the equity court or the probate court has jurisdiction of the controversy—also arose in Re Sanborn’s Estate, ante, 191. The opinion written in that case by Mr. Justice Montgomery is decisive here. In the San-born Case whatever trust was created arose from the terms of the will. In this case the trust was created by deed, but an examination of the record will show that the trust deed was given to enable the executors and trustees to carry out the provisions of the will. The will and the trust deed should be read together, to arrive at the full meaning of the trust deed. In addition to what is stated by Justice Montgomery in the Sanborn Case, it is only necessary to say that the record in the probate court discloses that, according t,o the last report of Mr. Sanborn as executor, a large fund was in his hands, which is unaccounted for in the records of the probate court. Section 5957, 2 How. Stat., requires the executor or administrator to render his account within one year from the time he receives his letters testamentary or of administration, and to make “such further accounts of his administration from time to time as shall be required by the court until the estate shall be wholly settled.” This has not been done by Mr. Sanborn. Where there has been a failure to comply with the provisions of the foregoing section, it is provided by section 6809, 3 How. Stat., that it shall be the duty of the judge of probate to notify and require, the executor to render an accurate account of all moneys and other property in his hands as executor, and the proceeds and expenditure thereof. As Mr. San-born qualified in the probate court as an executor, and, at the date of his last report, had funds in his hands as executor, it is his duty, under the statute, to render to the probate court an account of what has become of them.

It is not necessary to discuss the other questions involved.

The order of the circuit court is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author:
Grant, J.
      Montgomery, J.

license: Public Domain

text:
    VINING v. MILLAR.
    Chattel Mortgage—Priority op Lien—Conflict of Laws.
    A chattel mortgage on horses, given in Canada by the owner of a half interest in them, and filed by the mortgagee, who takes possession of the horses, and puts them in the care of the keeper of an hotel at a race track, to hold possession for him, gives such mortgagee a better right to such interest in the horses after they have been taken without his consent from the custodian, and shipped to Michigan, by the owners of the other half interest in the horses, who did not know of his mortgage, than the latter can assert under another chattel mortgage from the same mortgagor, which they took in Michigan before the horses went to Canada, and recorded after their return. Grant, J., dissenting.
    Error to Wayne; Lillibridge, J.
    Submitted January 9, 1896.
    Decided May 12, 1896.

      Replevin by James B. Vining and Donald Ferguson against Charles Millar and another for property seized under a chattel mortgage. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Reversed.

      Moore & Moore, for appellants.

      Brooke & Spalding, for appellees.
   Grant, J.

(dissenting). The following statement of facts is taken from the brief in behalf of the plaintiffs, and is correct:

“ On October 11th, the plaintiffs, who were residents of Canada, advanced to one George Leroy, a resident of Illinois, at Detroit, Michigan, $1,600, and took from him a chattel mortgage covering a one-half interest in three trotting horses, which interest was then owned by Leroy. The other one-half interest in two of the horses was owned by the plaintiffs, and in the third horse by another person, not a party to this suit. The plaintiffs and Leroy, at or about the execution of the mortgage, agreed that these horses should be raced on joint account during the winter of 1892 and the racing season of 1893, the winter racing to be in the Southern United States; the plaintiff Vining to manage the horses, making all contracts and entries, collecting the moneys, and doing all the business, Leroy to do the driving, and the money for expenses to be furnished by the plaintiffs, the profits and losses of the racing to be equally shared among the three. This arrangement was not to affect the property rights of the several parties in the horses. At the time of the execution of the mortgage, it was contemplated by the parties that the horses should be taken out of the State, and they were then on board the cars in Detroit for shipment South, and went out of the State in the afternoon of the same day.
“After racing the horses in the Southern States through the winter and spring, they were shipped back from the South to London, Canada, on May 4, 1893, and passed through Detroit in transit for London, where they arrived on May 8th. In order to get them into Canada, the plaintiff Vining gave a bond in the sum of $10,000, conditioned to return them to the United States within 70 days. The racing of the horses was continued in Canada under the same arrangement; but Yining fell sick, and was unable to remain with the horses personally. The horses were raced at various places in Canada, and finally at Toronto, at a race meeting beginning about the 3d of July. The plaintiff Ferguson attended at these races, and instructed Leroy to ship the horses on July 10th to Detroit, where they were next to race, and left him to do so. Instead of shipping the horses, Leroy disappeared; and, the plaintiffs learning from one Stilson, the assistant driver, who was in their employ, that Leroy had gone, Ferguson again went to Toronto, and on Saturday, July 15th (the period within which the horses were to be returned according to the condition of the bond being nearly up), shipped them back to Detroit, where Yining took charge of them.
“It appears that the horses, before coming to Toronto, were in Tilsonburg, which is about 100 miles distant, and in another county. Leroy had gone ahead to Toronto, and there met the defendant Millar on June 30th, and represented to him that he had these horses at Tilsonburg, and wanted to get them down to Toronto for the races, and wanted to borrow of Millar money to pay to bring them and to keep them in Toronto during the races. Millar gave him some money then, and agreed to make further advances, taking a mortgage on the horses as security. This mortgage Millar filed in the county clerk’s office in Toronto on July 5, 1893. Defendant Millar testifies that on July 8th, with Leroy’s consent, he put the horses in the care of one Briggs, the keeper of an hotel at the race track, to hold possession for him. At the time when Ferguson returned to Toronto, after Leroy’s disappearance, he found the horses in the possession of Stilson, the plaintiffs’ assistant driver, at the stable of Briggs; saw Briggs, and paid him all his charges for feeding the men and horses, and told him he was going to ship the horses. Briggs made no claim of possession, and Ferguson learned nothing about Millar or his mortgage.
_ “On Monday, the 17th of July, when the horses arrived in Detroit, where they were to race, the plaintiffs recorded their mortgage; and, on the following day, the defendant Millar came to Detroit, and had the defendant Fox, who is a constable, seize the horses under his chattel mortgage.- The plaintiffs, to whom this act was the first notice of Millar’s mortgage, demanded the return of the property, and, on its being refused, brought this action of replevin, upon the trial of which a verdict was directed in their favor.”

The principal question in the case is whether the defendant Millar’s mortgage has preference over that of the plaintiffs, which was prior in date. The question is not new in this court. The principle governing it has been discussed and determined in the following cases: Montgomery v. Wight, 8 Mich. 143; Boydson v. Goodrich, 49 Mich. 65; Corbett v. Littlefield, 84 Mich. 30. In all these cases it was held that chattel-mortgage laws have no force beyond the jurisdiction of the sovereignty enacting them, and that the notices, which the record of them is designed to give, have no extraterritorial -force. The reasoning of Justice Campbell in Montgomery v. Wight is exhaustive and conclusive. It was followed in the other opinions. It may be conceded that the defendant Millar has a lien valid in Canada, and that plaintiffs have a lien valid in Michigan. The parties, therefore, have no other or different rights than they would have if there were no law in either country providing for recording mortgages, and declaring the effect of such record.

It is sought to distinguish this case from the above, upon the claim that Millar had reduced the property to possession in Canada, and that it was illegally and surreptitiously taken from him. In the cases above cited, the property was left in the control of the mortgagor; and in Corbett v. Littlefield it was held that the attachment lien in this State prevailed, although the property was removed from the State of Nebraska without the knowledge or consent of the mortgagee. The difficulty with the defendants’ contention is that the facts do not support it. There was no actual or visible change of possession. The horses were at Mr. Briggs’ hotel, and in his possession, at the time defendant Millar claims possession was given to Mr. Briggs for him. This possession was only that of an hotel keeper in charge of the property of his guest. Millar testified: “I went to the hotel man in whose possession these horses were, and I said to the hotel man, ‘ These horses remain as between you and me, * * * and you are to keep them for me.’ ” Plaintiffs were under a heavy bond to return the horses to the United States within a specified time, which had nearly expired. Leroy had been instructed to ship them to Detroit. He failed to do so. By telegram, plaintiffs ascertained that Leroy had left. Plaintiff Ferguson then went to Toronto, and found the horses in the care and control of their employé, Stilson, at the public stable of Mr. Briggs. He paid Mr. Briggs all he claimed for their care and keeping, and told him he was going to ship them. Briggs made no claim to their possession, nor informed him that Millar had, or claimed to have, a lien. Neither Stilson nor any other of the plaintiffs’ employés is shown to have had any knowledge of the arrangement between defendant Millar and Mr. Leroy. Neither was there anything to indicate any change of possession or the existence of any lien. Under such circumstances, the plaintiffs were rightfully in the possession of their property, and their rights must be determined without regard to any arrangement between Millar, Briggs, and Leroy. The horses were therefore lawfully in Michigan, and in the possession of the plaintiffs, as mortgagees and part owners, with their ■chattel mortgage on file in the city where the property was then located, and without any knowledge of the defendant Millar’s mortgage. The question presented by the briefs is one exclusively of the priority of liens. The case, therefore, comes directly within those above cited, and the instruction of the court was correct.

In view of this disposal of the case, the other ■ questions raised become immaterial.

Judgment should be affirmed.

Montgomery, J.

Under the statement of facts by Mr. Justice Grant, it appears that defendant Millar had taken possession of the property, and placed it with a custodian (Briggs), and this with the assent of the mortgagor. The property was not detained by the custodian, but, as his agency was a special one, it is clear that he exceeded his authority in delivering it over to, or permitting it to be taken by, plaintiffs. We have, then, a case in which the mortgagee in Canada has taken possession of mortgaged property, and in which the mortgagor has, without his assent, regained possession, transported the property to Michigan, and a prior lien holder has asserted a lien which, while the property was so in the possession of the Canadian mortgagee, was inferior to the Canadian lien. To give the Michigan lien priority under these circumstances is certainly to go a step further than this court has yet gone. In the cases of Montgomery v. Wight, 8 Mich. 143, Boydson v. Goodrich, 49 Mich. 65, and Corbett v. Littlefield, 84 Mich. 30, it appears that the foreign mortgagee permitted the mortgagor to retain possession. In Corbett v. Littlefield it was said distinctly that the mortgagee had it in his power to protect himself by taking possession of the mortgaged property. It can hardly be said that it was intended to imply that he must, in addition to taking possession, stand guard over the property constantly, to see that the mortgagors do not take it out of his possession and to another jurisdiction. If, in fact, Millar was invested with possession, it is difficult to see how he could have done more to protect himself, unless an absolute duty does rest upon a mortgagee to see that no person with or without right shall take the property beyond the jurisdiction; and I cannot understand why this duty should be imposed upon a mortgagee in possession any more than it is upon an absolute owner. Without regard to the record of the mortgage in Canada, it was good as against any but creditors who became such after the mortgage was made and before possession was taken, or prior creditors wbo had acquired a lien before possession was taken by the mortgagee. Waite v. Mathews, 50 Mich. 392.

Certainly, plaintiffs, as mortgagees, under a mortgage executed in Michigan, upon property which was, by their direct assent, taken to Ontario, were not entitled to priority over a mortgage given in Ontario, and under which possession was given to the mortgagee. Can it be said, then, that because Briggs, the custodian, did not withhold the property from them, and because they did not in fact know of the title acquired by Millar from Leroy, they are to be given priority for this reason? I cannot understand how they could occupy any better position than a purchaser from Leroy could occupy; and if the mortgage to Millar was taken by him in good faith, and the possession was actually transferred as testified to by him, I think the mortgage as to Leroy’s half interest in the horses was good, and entitled to priority over plaintiffs’.

Judgment is reversed, and a new trial ordered.

Long, C. J., Hooker and Moore, JJ., concurred with Montgomery, J.


author: Grant, J. Montgomery, J.

text:
    CLARK v. HAUPT.
    Principal and Agent—Notice op Want op Authority.
    Plaintiffs, dealers in pianos, employed one P. to solicit customers, but gave him no authority to sell. P. placed an instrument on trial-in defendant’s house, and offered, in the presence of a member of the firm, to sell the same for $400, but this offer was refused. P. thereafter visited defendant, and stated that he would see his employers before the instrument was removed, and ascertain what they thought about it. The following day P. returned, and represented that plaintiffs had authorized him to sell for $200, whereupon the bargain was concluded. Held, that the statement of the canvasser in regard to seeing his employers before making an offer, and his final proposition to sell at half infice, were circumstances which should have awakened suspicion of his lack of authority to consummate the sale. Montgomery, J., dissenting.
    Error to Wayne; Frazer, J.
    Submitted January 15, 1896.
    Decided May 12, 1896.
    Replevin by Seward E. Clark and another against William T. Haupt. From a judgment' for defendant, plaintiffs bring error.
    Reversed.
    Plaintiffs, in 1893, were engaged in the business of selling pianos. The firm then consisted of the present plaintiffs and Edwin A. Long. They employed persons as canvassers to look up prospects for the sale of the pianos. These canvassers were not authorized to make sales, but when they found prospects they reported them to their employers, who completed the transaction. Among those so employed was one Pressburg, who reported the defendant as a prospect, and stated that a piano could be put in his house. Mr. Long went with Pressburg to the house, where they found Mrs. Haupt. She testified that she refused to buy, and told Mr. Long that nobody had given Pressburg permission to bring the piano. While they were talking, the piano came. She finally consented that the piano might be placed in the house upon the understanding that it should be taken away on the following Monday. This was early in May. No one came until Friday night, when Mr. Long and Pressburg came together. Mr. Haupt was at home. Mrs. Haupt and the defendant testified that Pressburg gave the price as $450, and finally came down to $400. Defendant and his wife both testified that in that conversation Mr. Pressburg said to them in the presence of Mr. Long, “I am not their agent, but I am their manager.” Mr. Long testified that he heard no such- conversation, and that much of the conversation between Pressburg and the defendant and his wife was in German, which he did not understand. The defendant testified that at the first interview between himself, Pressburg, and Long, Mr. Pressburg represented himself as the agent and Mr. Long as one of the managers, and so introduced Mr. Long to him. Mr. Long fixes the offer of the piano at $465. Thus the matter rested until June 3d, when Pressburg again visited Mrs. Haupt. She testified that Pressburg then said to her, “Before I bring up a dray and take the piano, I will see Mr. Clark, and see what he thinks about this.” The next day Pressburg returned, and stated that plaintiffs had authorized him to sell the piano to them for $200. Defendant, Haupt, concluded the bargain with Pressburg for $200,—$25 in cash, and a note for $175, payable February 1, 1894. This contract of sale was made July 3d. Pressburg meanwhile reported to plaintiffs that he could sell the piano to Haupt for $500 on credit, payable in five notes of $100 each. Plaintiffs looked up Mr. Haupt’s rating, and authorized the contract. Pressburg turned over to the plaintiffs five notes purporting to be signed by Haupt, and dated June 23 d. One note they discounted at a Detroit bank. The others were sent to the firm of which plaintiffs purchased the piano. Soon after, Mrs. Haupt went to plaintiffs’ store to exchange a piano cover and stool. Plaintiffs then, for the first time, were informed by Mrs. Haupt of the arrangement made with Pressburg. The defendant insisted upon the validity of his purchase, and refused to take any action in the matter. Plaintiffs thereupon, as they testify, tendered him $25 and a bond of indemnity against the outstanding note of $175. Defendant admits the tender of a bond, but denies the tender of $25. He refused to accept, and thereupon plaintiffs, after demand, brought this suit of- replevin.

      George W. Radford, for appellants.

      Elbridge F. Bacon, for appellee.
   Grant, J.

(after stating the facts). It is clear that a gross fraud was perpetrated upon the plaintiffs. The notes for $500 were forged. Pressburg, soon after the transaction, fled, and neither he nor the note for $175 has since been heard of. Obviously, this transaction ought not to stand, unless the inflexible rules of law require it; and we think they do not. Pre'ssburg, in fact, had no authority to make the sale. It was submitted to the jury upon the theory that plaintiffs had held Pressburg out as their agent or manager authorized to sell. It is not claimed that even Pressburg had represented himself as clothed with authority before Mr. Long went with him to see Mr. Haupt. In the first interview with Mr. Haupt, Pressburg did not claim authority to sell, but called himself simply an agent, and introduced Mr. Long as the principal. Mr. Long said nothing showing any authority in Pressburg. At the last interview when Mr.' Long was present, both Mr. and Mrs. Haupt declined to buy, and understood that the piano was to be promptly removed from their house. Neither of the plaintiffs made any further effort to sell it. When Pressburg next visited them, he told them that he would see his employers, and report what they would do. This was notice to them from Pressburg himself that he had not then the authority to sell the piano. Any statements made to Mrs. Haupt or to the defendant after that of his authority were incompetent to prove the agency, and this was all the proof there was. They were fairly put upon their guard that they must deal with Pressburg at their peril. The least price which had been fixed by the plaintiffs was $400, according to defendant’s own testimony. There is no evidence upon this record that it was worth less. On the contrary, it clearly appears that this was a valuable piano, and that the regular price was $500. The proposition of Pressburg to sell at half price should have awakened their suspicions. A few moments’ walk to plaintiffs’ store, or a telephone message, would have ascertained Pressburg’s authority. We think no title passed, and that the plaintiffs did nothing to estop them from denying the agency. The court should have directed a verdict for plaintiffs.

Judgment reversed, and new trial ordered.

Long, C. J., and Moore, J., concurred with Grant, J. Hooker, J., concurred in the result.

Montgomery, J.

(dissenting). I am notable to agree with my brethren that the statement of the agent, Press-burg, to the defendant, to the effect that he would see his employers before making a proposition to defendant, was notice of a want of authority to sell the piano. Nor do I think that the proposition to sell at the price of $200 was conclusively, and as matter of law, notice of a want of authority. I think, therefore, there was a question for the jury, and dissent from the conclusion of the majority for this reason.


text:
    JACKSON v. SESSIONS
    Contract—Mutuality.
    An assignment by sub-vendees of their rights in a contract for the purchase of timber is, as between the assignee and the original vendor, void for want of mutuality, where the assignee assumes no liabilities under the contract, and no consideration passes from him to the vendor therein.
    Error to Muskegon; Russell, J.
    Submitted January 17, 1896.
    Decided May 12, 1896.

      Assumpsit by Charles H. Jackson against Clarence W. Sessions for the breach of a contract for the sale of timber. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Affirmed.

      C. W. Perry, for appellant.

      Sessions, Niskern & Bassett, for appellee.
   Moore, J.

In the court below, plaintiff filed a declaration which may be summarized as follows: That defendant was owner and possessor, as trustee, of certain lands in Clare county, a description of which is given, together with the hemlock timber thereon, amounting to 18,000,000 feet; that said defendant, as trustee, prior to November 7, 1891, sold said lands and hemlock timber to James Davison and Rose P. Gardiner for $1 per 1,000 feet, log measure, to be paid by the said Davison & Gardiner, and their assigns, as fast as such timber should be cut; that ‘while such contract was in force, and said parties were then acting under it, Davison & Gardiner entered into a contract in writing (which is set forth in full) “to sell, and do sell, to said second parties, all the merchantable hemlock timber on the following described lands” (the description then follows), to Aaron P. Bliss and Willis G. Van Auken, for a price and on terms therein named, which said Bliss & Van Auken then agreed to pay, and that it was agreed that Bliss & Van Auken should retain out of the purchase price $1 per 1,000 feet, and pay the same direct to the defendant, to apply on the contract between said Sessions and said Davison & Gardiner; that at the making of said contract the defendant consented to said contract, so far as the same related to the timber held under contract of purchase from him by said Davison & Gardiner, and agreed, for a valuable consideration, that, in case Davison & Gardiner should make default, said Bliss & Van Auken should be permitted to cut and remove the timber, and consider the Same as sold direct to them, upon payment to the defendant of $1 per 1,000 feet for all timber so to be cut and removed, to be paid within 30 days after demand therefor, and notice of default on the part of Davison & Gardiner; that on the 2d day of August, 1892, the plaintiff purchased, for a valuable consideration, from the said Bliss & Van Auken, said contract, and all rights, title, and interest of Bliss & Van Auken in and under said contract, together with the said consent and agreement of said Sessions attached thereto; that said defendant had full notice, before the assignment, of the intention of plaintiff to purchase of said Bliss & Van Auken, and not only made no objection thereto, but advised plaintiff to make such purchase, and led plaintiff»to believe, and plaintiff did believe, that Sessions assented to such contract of assignment from Bliss & Van Auken, together with such supplemental consent and agreement, and without such assent plaintiff would not have purchased said contract; that Bliss & Van Auken performed said contract, in all things, up to the date of such assignment, “and were then and there entitled of right to go upon said lands, and to cut and remove the said hemlock timber thereon, upon payment to the said Sessions of $1 per 1,000 feet within 30 days after demand therefor;” that said contract, since the said assignment, has been fully carried out by plaintiff for said Bliss & Van Auken, and in their place, so far as allowed by said defendant, and plaintiff has at all times been ready and willing to carry out said contract; that on September 1, 1892, Davison & Gardiner made default in their said contract; that on said 1st day of September, 1892, the plaintiff gave defendant notice that he was the owner of said contract, and the consent and agreement of defendant attached thereto, by assignment, and that he claimed the right to cut and remove the timber according to said contract, and the assent and agreement of said defendant, upon payment to defendant of $1 per 1,000 feet; that defendant refused to allow plaintiff to go upon said lands and cut and remove such timber, and prevented plaintiff from so doing, and sold said timber to other parties, in consequence of which the plaintiff was damaged to the amount such timber was worth, for the purpose of cutting and manufacturing, above the $1 per 1,000 feet to be paid to the defendant.

This declaration was demurred to for the following reasons, in substance: That the agreement between the defendant and Bliss & Van Auken, and the agreement between plaintiff and defendant, are void for want of mutuality; that the contract between Davison & Gardiner and Bliss & Van Auken is not assignable; that the supplemental agreement between defendant and Bliss & Van Auken is not assignable; that the right of Bliss & Van Auken to enter on such land and cut and remove such timber was dependent upon the default of Davison & Gardiner, and upon the payment of $1 per 1,000 feet as a condition precedent to such cutting and removing, and that payment or tender is not alleged; that the right of Bliss & Van Auken under said agreement with defendant was a mere license to enter upon said land and cut and remove such timber, and was not coupled with an interest in the subject-matter, and was revocable at pleasure, and had been revoked; that, if there be any agreement between plaintiff and defendant, it rests in parol, and is void under the statute of frauds; that the damages claimed are too uncertain, inconsistent, conjectural, and speculative to permit any recovery.

The circuit judge sustained the demurrer. His action is sought to be reviewed in this proceeding.

The contract from Sessions to Davison & Gardiner is referred to in the declaration, and a copy of it is attached to the demurrer. Those portions of it that are important in this discussion read:

‘ Said first party agrees to sell to said second parties all the merchantable timber, of every kind and description,” on certain premises (describing them).
“Said second parties agree to pay for the timber” (describing the amount and manner of payment).
“It is further agreed by and between the parties hereto that said second parties shall have the privilege of entering upon said land ” to cut and remove the timber, upon certain conditions.
“Before removing the timber, or the product manufactured from the same, they shall pay the following sums of money.” And the amounts and manner of payment are then stated.

Then comes this provision: “The title to said timber, logs, lumber, and shingles to remain in said first party until paid for as above.”

Davison & Gardiner had the right “to sell the timber upon payment to said party of the first part of such a sum of money as shall be reasonable, and shall be agreed upon by and between the parties.” They were to pay one-half the taxes, and perform other conditions stated in the contract, and it was agreed “that, upon the full and complete performance of the covenants and conditions herein contained, * * * said first party shall execute to said second parties a good and sufficient deed of said timber;” but, in case Davison & Gardiner did not perform their agreement, it was provided “that the first party may, at his option, declare this contract void.”

The agreement between Davison & Gardiner and Bliss & Van Auken was, in effect, that the former would sell, and did sell, to the latter, all the merchantable timber mentioned in the contract between Sessions and Davison & Gardiner. Bliss & Van Auken agreed to buy said timber, and the contract stated the method of manufacture, the times and terms of payment.

At the time of the delivery of this contract there was indorsed upon it in writing, by Sessions, as follows :

“I consent to the making of said contract 'by the parties hereto, so far as the same relates to the timber held under said contract of purchase from me by Davison & Gardiner: Provided, however, that nothing herein shall be deemed a waiver of all rights secured to me in and by said contract of purchase, or an extension or modification of the terms of said contract. In consideration of $1 to me paid, the receipt of which is acknowledged, I further agree that in case said Davison & Gardiner shall make default in said contract of purchase from me, and shall fail to carry out the same, then said Bliss & Van Auken shall be permitted to cut and remove the timber mentioned in the foregoing contract as having been sold by me, upon the payment to me of $1 per 1,000 feet, so to be cut and removed, which payment shall be in accordance with the terms of said contract of purchase by said Davison & Gardiner from me, except as modified above as to price, and shall be made within thirty (30) days after demand therefor, and notice of default on the- part of said Davison & Gardiner, as aforesaid.”

The only writing which passed between Bliss & Van Auken and Jackson reads as follows:

“Saginaw, Mich., August, 1892.
“For a valuable consideration, viz., $687.53, to us in hand paid by O. H. Jackson, of Baldwin, of Lake county, Michigan, we transfer, sell, set over, and assign to said C. H. Jackson any and all rights that we may have in and to a certain contract, dated November 7, 1.891, made by Davison & Gardiner, of Farwell, Mich., of the first parties, and ourselves, of the second parties; said contract being also approved and consented to by Clarence W. Sessions, trustee. We assume no responsibility in making this transfer, and Mr. Jackson takes this for what he may recover hereunder.
“Bliss & Van Auken,
“By W. G. Van Auken.”

No writing passed between Sessions and Jackson.

It is claimed that the consent of Sessions did not amount to an agreement, but was a revocable license, as Bliss & Van Auken did not agree, in case of the default of Davison & Gardiner, to take their places, or to make any payments, and that it must fail for want of mutuality. It is not necessary, in this case, to determine that question, and we express no opinion upon that point.

All that Bliss & Van Auken assigned to Jackson was this contract with Davison & Gardiner. There is no claim that Sessions assented in writing to the assignment of the Bliss & Van Auken contract to Jackson, or that anything was paid to him, as a consideration therefor, by Jackson. Jackson did not agree with Davison & Gardiner to take any of the logs or timber, nor with Bliss & Van Auken that he.would take their place in the Davison & Gardiner contract; nor did he agree with Sessions that, if Davison & Gardiner defaulted in their contract, he would go on and take their place and make the payments ; nor did he tender an agreement in writing to do any of these things. Neither did he tender any payment for the timber. If, after he procured the assignment from Bliss & Van Auken, Jackson had done nothing, he would have incurred no liability. Neither Davison & Gardiner nor Sessions had any legal claim against him. The timber never has been paid for. Davison & Gardiner have defaulted. No one is so related to them in the Sessions contract that he can enforce it against any one but them. It would be a strange legal proposition to say that a contract which might result in acquiring title to a large amount of timber could rest in parol, be created without any consideration passing between the parties to it, and that it need not have two parties, and yet could be enforced. Giving the fullest effect to what Jackson claims occurred between him and Sessions, it does not establish a contract that could be enforced. It fails for want of mutuality. In Clark, Cont. p. 523, it is stated:

“A contract cannot affect any but the parties to it, either by imposing liabilities or conferring rights on them. The original parties to a contract, however, may, under certain circumstances, drop out, and others may take their places. In this way the contractual obligation does pass to persons who were strangers to the contract when originally made; and this would, at first thought, seem to furnish an exception to the rule we have been discussing. The exception, however, is only apparent, for the persons so affected do actually become parties to the contract, either by their own voluntary consent, or by operation of law; and even the law does not confer rights or impose liabilities without the consent of the parties, or at least without voluntary acts on their part which prevent their refusing consent. The operation by which this change in the contractual relation is effected is termed an ‘assignment of the contract.’ * * * It is the settled rule, subject to exceptions which are apparent rather than real, that a person cannot assign his liabilities under a contract, or, to put the matter from the point of view of the other party to the contract, a person cannot be compelled to accept performance of a contract from a person who was not originally a party to it. The reason for the rule lies, not only in the right of a person to know to whom he is to look for the satisfaction of his rights under a contract, but more particularly in his right to the benefit which he contemplates from the character, credit, and substance of the person with whom he has contracted. Humble v. Hunter, 12 Q. B. 310; Arkansas Val. Smelting Co. v. Belden Min. Co., 127 U. S. 379; Chapin v. Longworth, 31 Ohio St. 421; Rappleye v. Seeder Co., 79 Iowa, 220; Burger v. Rice, 3 Ind. 125; Bethlehem v. Annis, 40 N. H. 34 (77 Am. Dec. 700); Lansden v. McCarthy, 45 Mo. 106; Donelson v. Polk, 64 Md. 501; Stewart v. Railroad Co., 102 N. Y. 601 (55 Am. Rep. 844), and cases there cited.”

In Davie v. Mining Co., 93 Mich. 496, it is said: “Contracts cannot arise where there is no mutuality; nor can they arise from the action of one party alone, where the other has no power to prevent his action.” See Mc Donald v. Bewick, 51 Mich. 79, and cases there cited; Richardson v. Hardwick, 106 U. S. 255; Utica & Schenectady R. Co. v. Brinckerhoff, 21 Wend. 138 (34 Am. Dec. 220).

It is not necessary to discuss the other questions presented by the demurrer.

The case is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    MARQUETTE OPERA HOUSE BUILDING CO. v. WILSON.
    1. Building Contract—Action against Sureties—Defenses.
    In a suit against the sureties on a building contractor’s bond to recover the price of materials furnished by a third party for which the owner of the building had become liable, and against which liability the bond indemnified him, the defendants may show, under a plea of the general issue, that plaintiff has in his hands money due the contractor sufficient to satisfy the demand.
    2. Same.
    Plaintiff cannot, under such circumstances, be compelled to apply upon his demand an amount due the contractor for extras, where the obligation to pay for such extras did not arise until the architect had given an estimate therefor, and it is not shown that such estimate was made; it being the duty of defendants, if they relied on a breach of contract in that the architect failed to give such estimate, to give notice of such defense.
    3. Same—Construction of Bond—Liability of Sureties.
    A builder’s bond given to the owner to indemnify him and save him harmless from such claims for labor or materials furnished in the construction of the building as might become liens thereon, or which the owner might be compelled to pay, creates no liability on the part of the sureties thereunder to indemnify the owner for payments made by him for labor and materials furnished for which he was not liable and the claims for which were incapable of becoming liens upon the building.
    4. Same—Release op Sureties.
    Where a building contract provided that a certain per cent, should be withheld by the owner from each estimate until final certificate of completion was given by the architect, and a bond collateral thereto purported to indemnify the owner against loss by reason of any liens for labor or material used in the construction of the building, a failure to retain the stipulated amount, and a payment upon claims which were not and could not become liens, operated to reduce pro tanto the obligation of the sureties.
    Error to Marquette; Stone, J.
    Submitted January 29, 1896.
    Decided May 12, 1896.

      Assumpsit by the Marquette Opera House Building Company against Robert J. Wilson and James B. Moore as principals, and Daniel W. Powell and others as sureties, upon a building contractor’s bond. Prom a judgment for plaintiff on verdict directed by the court, the defendant sureties bring error.
    Reversed.
    The plaintiff, in August, 1890, entered into a contract with the defendants Wilson & Moore for the construction by Wilson & Moore for plaintiff of a block in the city of Marquette, according to the plans and specifications prepared by D. Pred Charlton, architect. The provisions of the contract which have a bearing on the question involved are as follows: ¡
    “Should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architect, and the sum herein agreed to be paid for the work according to the original specification shall be increased or diminished, as the case may be.”
    “Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on their part herein contained, such refusal, neglect, or failure being certified by the architect, the owners shall be at liberty, after three days’ written notice to the contractors, to provide any such labor or materials, and to deduct the cost thereof from any money then due, or thereafter to become due, to the contractors under this contract.”
    “ It is hereby mutually agreed between the parties hereto that the sum to be paid by the owners to the contractors for said work and materials shall be $45,000, subject to additions or deductions on account of alterations as hereinbefore provided; and that such sum shall be paid in current funds by the owners to the contractors, in installments as follows: On monthly payments on estimates to be given by the architect, 15 per cent, to be deducted from each estimate until final certificate of completion is given by the architect, when all back percentages are to be included. And it is further mutually understood and agreed between the said parties that the owners have the right to furnish different materials for the said building at the regular market prices as they may see fit, and such furnishing of material shall be considered as cash value in making estimates of work by the architect, and as payment upon the same; it being understood that the final payment shall be made within 30 days after this contract is completely finished: Provided, that in each of the said cases, the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfaction; and provided, further, that before each payment, if required, the contractors shall give the architect good and sufficient evidence that the premises are free from all liens and claims chargeable to the said contractors; and, further, that if, at any time, there shall be any lien or claim for which, if established, the owners of the said premises might be made liable, and which would be chargeable to said contractors, the owners shall have the right to retain out of any payment then due, or thereafter to become due, an amount sufficient to completely indemnify them against such lien or claim, until the same shall be effectually satisfied, discharged, or canceled. And, should there prove to be any such claim after all payments are made, the contractors shall refund to the owners all moneys that the latter may be compelled to pay in discharging any lien on said premises, made obligatory in consequence of the former’s default.”

    As security for the performance of this contract, the defendants Wilson & Moore, as principals, and the contesting defendants, as sureties, executed a bond, reciting the execution of the contract, and' with further recitals and conditions as follows:
    “And whereas, it is agreed in the said contract that the said Wilson & Moore shall build the said block according to the said contract, for the sum of $45,000, and are also to deliver the said building free from all liens and incumbrances for labor or material used in the erection of the same: The conditions of this obligation are such that the said Wilson & Moore shall pay for all labor and materials used in the erection of the said block, and hold the said Marquette Opera House Building Company free from all obligations therefor; and if the said Wilson & Moore shall so pay up all said obligations for labor and materials furnished upon the completion of the said block by the 1st of July, 1891, and shall, from time to time, save the said Marquette Opera House Building Company harmless from any obligations for such labor and material or annoyance as to the same, then this obligation shall be void,” etc.
    .The declaration avers that, to enable Wilson & Moore to obtain material for the building, the plaintiff, on the 1st of March, 1891, at Wilson & Moore’s request, did promise to pay to Bice, Pendill & Co. the sum of $3,-595.51," and subsequently paid the same, and that Wilson & Moore had not paid the same, and avers that it is a breach of the bond. The plea was the general issue.
    On the trial, the plaintiff showed that Wilson & Moore contracted with Bice, Pendill & Co. for material, but that, after furnishing a small portion thereof, Bice, Pen-dill & Co. refused to deliver any more, unless the plaintiff would become responsible for the pay; and thereupon, in order to induce Bice, Pendill & Co. to continue the delivery of said materials, plaintiff agreed to become responsible therefor, and that estimates therefor should be made by the architect, and the amouut thereof be paid directly to them by the plaintiff, instead of paying through the hands of Wilson & Moore.
    Up to the time of this arrangement with Bice, Pendill & Co., April 2, 1891, there had been paid to Wilson & Moore, on the contract, $26,495.50, leaving unpaid about $16,000 of the contract price if Wilson & Moore .were charged at that date with the amount of Bice, Pendill & Co.’s bill, subsequently paid. The plaintiff offered evidence of subsequent payments, made on estimates, to payees named in the orders drawn by Wilson & Moore.
    The defendants offered to show, as matter of defense: (1) That additional material was furnished by Wilson & Moore, amounting to about $1,800; (2) that the payments made on the orders given subsequent to April 2d were made upon claims for labor and material which had ceased to be potential liens at the time, and that, therefore, if plaintiff was justified in assuming the claim of Bice, Pendill & Co., it had it in its power to pay the same out of the funds in its hands, and voluntarily paid the same on claims on which it was not liable; and (3) that the plaintiff had failed to withhold 15 per cent, of the contract price from the contractors,—and contended that, by this neglect, the sureties were discharged.
    The learned circuit judge, while expressing a doubt as to his conclusions, and with the purpose of presenting a record upon which these questions could be raised and passed upon by this court, held that the first defense was inadmissible under the pleadings, and that, as to the-second defense, the defendants’ undertaking was absolute to pay the workmen and for material, and therefore the plaintiff had the right to make payments for any labor or material which went into the building, and might recover for such payments in an action on the bond.

      E. J. Mapes (W. S. Hill, of counsel), for appellants.

      Ball & Ball, for appellee.
   Montgomery, J.

(after stating the facts). We think the defendants were entitled to show, under a plea of the general issue, that the plaintiff had money in its hands, due to Wilson & Moore under the contract, which was equal to the amount which it was required to pay to Bice, Pendill & Co. Indeed, the circuit judge so held, and applied a balance which was admittedly due under the claim, but held that the amount due Wilson & Moore for extra work could not be so applied, for the reason that the obligation to pay for these extras arose only after the architect had given an estimate therefor, and that this was not shown; that the defendants’ cause of' complaint, if any, was the failure of the architect to give estimates; and that this breach of contract, if any such existed, should have been set up in the pleadings. We think there was no error in this ruling. Had Wilson & Moore brought suit on the contract, it would have been necessary to aver this breach, and we think on this issue the plaintiff should have had notice of it. No offer was made to amend. Had there been, there is no doubt an amendment would have been permitted. •

The second question raised depends upon the construction placed upon the bond. On the part of the plaintiff it is contended that the bond should be construed as an absolute engagement to pay for labor and material, and that it follows that, on a failure of Wilson & Moore to do so, the plaintiff had the right to make payment and charge it to Wilson & Moore, and recover of the sureties on the bond. The defendants, on the other hand, while apparently conceding that, as to any claim which had become a lien upon the property, the plaintiff might take this course, contend that as to such demands not constituting liens, and particularly as to demands which, because of the lapse of time, had ceased to be liens, and were beyond the possibility of becoming liens, the plaintiff had no such right; that the condition of the bond as limited by the recital was not' so broad as to obligate the sureties to the actual payment of all claims for material and labor, but only to payment for such as were or might become liens. The plaintiff relies upon Knapp v. Swaney, 56 Mich. 345. That case was mandamus to compel the allowance by the building committee of the board of supervisors of a claim for building a courthouse. The relator stood in the shoes of the contractor, and the contract under which they were operating provided that the payments were to be made on estimates, but that, as a condition to such payment, it should appear that there was no legal or lawful claim against the contractor in any manner from any source whatever. The cases cited from Nebraska have followed Knapp v. Siuaney, but do not give much aid in the construction, of the instrument under consideration. It is to be noted that, in the contract between plaintiff and Wilson & Moore, the latter only undertook to deliver the building clear of liens, not to pay their debts for which liens did not exist. Presumptively, the bond executed, as the declaration avers, “in consideration of the execution of the contract,” was intended to insure the performance of some duty imposed by the contract upon the principals, Wilson & Moore. The bond recites the execution of the contract, the obligation of Wilson & Moore to construct the building, and deliver the said building free from any liens or incumbrances for labor or material used in the construction of the same. The condition is to pay for all labor or material used in the erection of the said building, and hold the said Marquette Opera House Building Company free from any obligations therefor. Is not this obligation met by paying such of the demands for labor and material as the opera house company is subject to be made liable for, if not met by the builders, or was it the intention, as expressed in this condition, to enlarge the obligation of Wilson & Moore, as expressed in the contract, and as contained in the recital of the bond? We think the former the true construction. It is well settled that the general words in the condition of any bond may be restricted by a particular recital. As was said by Lord Ellenborough in Payler v. Homersham, 4 Maule & S. 423: “Common sense requires that it should be so, and, in order to construe any instrument truly, you must have regard to all its parts, and most especially to the particular words of it.” In Bell v. Bruen, 1 How. 184, it was said: “The general rule is well settled, in controversies arising on the construction of bonds with conditions for the performance of duties, preceded by recitals, that, where the undertaking is general, it shall be restrained, and its obligatory force limited within the recitals.” See Sanger v. Baumberger, 51 Wis. 592. Under this construction, the plaintiff had the right to protect itself by payment of any claims which were at the time liens, and upon which Wilson & Moore were in default, or to pay any claims which might mature into liens, and upon which they were in default. But we think it was not within the contemplation of the parties that the plaintiff would be at liberty to make payments upon debts of Wilson & Moore for labor and material after such demands had ceased to be liens upon the property, and charge the sureties thereon.

The parties are not agreed upon the question of fact as to whether the plaintiff failed to retain the 15 per cent, provided in the contract. If, in fact, the plaintiff failed to retain this much out of the estimates, and the payments made were voluntary,—that is, made upon claims which were not and could not become liens,—the obligation of the sureties would be reduced pro tanto. Warre v. Calvert, 7 Adol. & El. 143; Bragg v. Shain, 49 Cal. 131; St. Mary's College v. Meagher, (Ky.) 11 S. W. 608.

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

The other Justices concurred.


text:
    WALDRON v. AUDITOR GENERAL.
    1. Taxes—Petition for Decree of Sale—Order of Hearing.
    An order for hearing on the petition of the auditor general for the sale of delinquent tax lands, which follows the form prescribed by section 62 of Act No. 206, Pub. Acts 1893, is sufficient, though it does not in its title state the year for which the taxes were assessed.
    2. Same—Designation of Newspaper.
    Where there were two papers published at the same place, known, respectively, as the “Muskegon Weekly Chronicle” and the “Muskegon Daily Chronicle,” a publication of the delinquent tax list in the Muskegon Weekly Chronicle was a sufficient compliance with the order of the auditor general designating the “Muskegon Chronicle,” inasmuch as the auditor general accepted and acted upon it as such.
    3. Same—Nonresidents—Opportunity to Attend Hearing.
    The objection that there was not sufficient time between the last publication and the day of hearing to permit nonresidents to attend the hearing is without force.
    Appeal [from Muskegon; Russell, J.
    Submitted January 28, 1896.
    Decided May 12, 1896.
    Petition by Carolyn P. Waldron and others against Stanley W. Turner, Auditor General, to set aside a sale of certain lands for taxes assessed thereon for the year 1892. Prom an order vacating the decree authorizing the sale, the auditor general appeals.
    Reversed.
    P. W. Niskern (John Vanderwerp, of counsel), for petitioners.

      Fred A. Maynard, Attorney General, and R. J. Macdonald, Prosecuting Attorney, for the auditor general.
   Montgomery, J.

The petitioners moved to set aside the decree entered at the September term, 1894, against lands of the petitioners for taxes assessed thereon for the year 1892. Numerous claims and objections to the proceedings were made.

First, it is claimed that the order fixing the term of hearing, under section 62 of Act No. 206, Pub. Acts 1893, was not sufficiently entitled, for the reason that in the entitling it did not state the year for which the taxes were assessed. The objection is not only technical, but it is answered by the fact that the form provided by the statute was adopted.

The principal objection urged was that the auditor general designated the “Muskegon Chronicle” as the newspaper to make the publication, and that two newspapers-are published in Muskegon, and known as the “Muskegon Daily Chronicle ” and the ‘ ‘ Muskegon Weekly Chronicle. ” The publication was in the Muskegon Weekly Chronicle, and proof of publication in that paper was made. The circuit judge held that the publication was not sufficient, and set aside the proceeding. The auditor general appeals.

The circuit judge evidently relied upon the case of Russell v. Gilson, 36 Minn. 366. The statute of Minnesota provided that the newspaper in which the delinquent list was to be published should be designated by the board of county commissioners, and that a copy of such resolution, certified by the county auditor, should be filed in the office of the clerk of the court. It was held that a publication in the Minneapolis Weekly Tribune, when the designation by the commissioners was the “Minneapolis Tribune,” conferred no jurisdiction. Two important facts ■ distinguish the Minnesota statute from ours: First, the body which makes the designation is not the body which makes the publication; second, the law requires the order of the publication to be filed in the office of the clerk of the court. The court said:

“The resolution was itself intended as notice to the taxpayer, so that, by examining it, he might be able to ascertain with certainty in what newspaper to look to see whether any proceedings had been commenced against his land as delinquent.”

The provisions of our statute which bear on the question are found in sections 63 and 66 of Act No. 206, Pub. Acts 1893. Section 63 reads as follows:

“The newspapers in which such order and petition are to be published shall be designated by the auditor general on or before the 1st day of July in each and every year, and not afterwards, unless the publisher of the paper so designated shall fail to accept such designation within 15 days after the same is made, or shall refuse or neglect to publish and print such order and petition, or unless, from any other cause, such publication shall become impracticable, in which case the auditor general shall designate some other paper for that purpose before the time limited for commencing such publication.”

Section 66 contains the following:

“The auditor general shall cause a copy of said order and a copy of said petition to be published, at least once in each week for four successive weeks next prior to the time fixed for the hearing thereof, in some newspaper published and circulating in the county where such petition is filed, to be selected by the auditor general.”

There is no provision for any record of the designation by the auditor general, and it is not to be inferred, therefore, that the public is to be expected to resort to such a record to ascertain in what newspaper the delinquent list is published. The auditor general is himself the moving party, acting on behalf of the State, and causes the publication. It is further provided by section 66 that the publisher of the paper shall furnish to the county treasurer and auditor general two copies of each issue containing the publication, and it is made the duty of the auditor general and treasurer to examine the notices published, and see that they are correct. It is evident, therefore, that, before the court is called upon to act upon this proof of publication, the auditor general’s attention has been called to the paper in which the notice was published; and that this publication was treated by him as a complianee with the designation is manifest from his permitting it to continue and acting upon it. There is room for saying that, under the Minnesota statute, the designation by the board is a jurisdictional prerequisite to action by the clerk, and that the record of this determination was intended to furnish means of information to the taxpayer; but our statute differs radically from the Minnesota statute in this respect. The one who causes the publication of the list himself selects the newspaper. No notice of the designation is required to be of record, and when the publication has taken place in such a newspaper as the auditor general is authorized to designate, and in one which he resorts to as complying with ■ the designation which he has made, such publication as the statute vouchsafes to the owner of the land has been given.

Another point is made, that as two of the defendants reside in the State of Washington, and as the last publication was on the 6th day of September, and the hearing but four days later, these nonresidents, not having time to come from the place of their residence after the publication was completed, are being deprived of their property without the opportunity of a hearing, and without due process of law. We are cited to no authority to sustain this contention, and think it without force.

The order of the court below will be set aside, with costs of both courts to be taxed against petitioners.

The other Justices concurred.


author: Moore, J. Montgomery, J.

text:
    LOUDEN v. MARTINDALE.
    1. Executors and Administrators—Assignment of Land Certificate.
    An administrator who has, under license from the probate court under 2 How. Stat. § 5347, sold, for the payment of the intestate’s debts, a part-paid land certificate left by him, and his interest in the lands therein described, may, after confirmation of such sale, properly assign such certificate to the purchaser thereon, such assignment being necessary to meet the requirements of the land office.
    2. Administrator’s Sale—Homestead.
    Children have an interest in land reserved by their mother as a homestead on a sale by her, as administratrix, of her husband’s property to pay his debts, only so long as they remain minors, and continue to occupy the land so reserved.
    3. Same—Bona Fide Purchaser.
    The fact that an administratrix sells to her husband at public sale, for an amount much less than its actual value, land belonging to the estate, and the further fact that the husband, after the lapse of 18 months, deeds the property to his wife, do not, where all the proceedings to sell were full, fair, and open, invalidate the administratrix’s sale, as being indirectly a sale to herself, so as to defeat the title of third parties claiming through a bona fide purchaser from the wife. Montgomery, J., dissenting.
    Appeal from Alpena; Kelley, J.
    Submitted January 29, 1896.
    Decided May 12, 1896.
    Bill by James S. Louden and others against Martha Martindale and others to set aside an administratrix’s sale. From a decree for complainants, defendants appeal.
    Reversed.

      Joseph Cavanagh (J. D. Turnbull, of counsel), for complainants.

      Frank Emerick, for defendants.
   Moore, J.

January 22, 1877, John Louden, a resident of Alpena county, died, leaving a widow, Sarah A. Louden, and four children, aged respectively: James S. Louden, 15 years; Andrew B. Louden, 9 years; John L. Louden, 7 years; Sarah A. Louden (now Foster), aged 10 months. These four children are the complainants.

February 5, 1877, the widow petitioned to be made administratrix of the estate, and was appointed administratrix February 28, 1877, and gave a bond which was approved by the judge of probate. Afterwards debts were allowed against the estate, to the amount of $2,400. Appraisers were appointed. The following property was left by the deceased: Lots 1 and 2 in section 33, township of Long Rapids, containing 65f acres, valued at $1,015; lots 3 and 4, same section, 72 acres, valued at $730; 120 acres valued at $600; personal property valued at $212.85. October 15, 1877, the administratrix petitioned for a license to sell the real estate to pay the debts, which order was properly published and posted; and on November 26, 1877, a license to sell the real estate was made by the court, and the administratrix gave the bond required by the court, and took the oath before sale in the usual form. The notice of sale was given for January 26, 1878, and proof of publishing and posting of this notice was duly made.

Before the sale, the administratrix married Patrick Burns. She had also had surveyed by the county surveyor, and selected as a homestead for herself and minor children of the deceased, the premises described in the bill of complaint. The lands were advertised for sale ‘ ‘ sub] ect to the homestead rights of the widow and children of said deceased therein.” January 26, 1878, she made a report of. sale as administratrix, under the name of Sarah A. Louden Burns, and reported that, in pursuance of the license to sell, she had given a bond, and had complied with the other requirements of law, and had also given proper legal notice of said sale, and published and posted the same, and annexed the affidavits of the publisher and the person posting the same; that at said sale she sold at public auction a part of said real estate, namely, the homestead, consisting of 40 acres of land, as selected by the widow of said John Louden for herself and minor children of said deceased (describing it), to Patrick Burns, for the sum of five dollars; that the sale was kept open for two hours; that several persons were present; that she offered the other parcels of land for sale, but, as there were no bidders, the further sale was postponed. January 36, 1878, this sale was confirmed, and the administratrix ordered to make conveyance to Burns, which was done. January 38, 1878 (the date to which the sale was postponed), the administratrix sold the balance of the said real estate as follows: Lots 1 and 3, excepting a strip 13 rods wide and 48 rods long, off the west side of lot 3, which went into the homestead, to Albert Pack and Benjamin B. Young, for $338. What was left of lots 3 and 4 after taking, out the homestead was sold to Pack and Young for $65, and the 130 acres was sold to Albert Pack for $1. On the same day the sale was confirmed, and the conveyances made.

After the death of her husband, Mrs. Louden continued to reside in the dwelling house of the deceased, situated upon the land selected by her as a homestead, and kept complainants with her, as an unbroken family. This continued after her marriage with Burns, and his purchase of the land, until it was sold by Burns and wife to Mrs. Brown (then named Naylor), the mother of defendants, on August 35, 1883. July 3, 1879, Patrick Burns deeded this land to his wife, Sarah A. Burns, the mother of the complainants. This deed was recorded October 16, 1879.

The title of Mr. Louden was not an absolute fee simple, to lots 3 and 4, but he held them under a purchase from the State as partly-paid swamp lands. He paid $33 down, leaving $67.97 unpaid. January 38, 1878, Mrs. Burns, as administratrix, assigned this certificate, so far as it covered the lands in controversy, to Patrick Burns, and on the same day assigned the balance of the certificate to Pack and Young, they having purchased the remainder of lots 3 and 4. May 20, 1882, Pack and Young assigned their interest in said certificate to Burns, who then paid the State the money unpaid on said purchase, and filed with the secretary of state his certificate, with the assignment and certified copies of the proceedings in probate court. July 13, 1882, the State issued a patent for lots 3 and 4 to Burns.

August 25, 1882, Burns and wife, for $1,200 in cash, deeded the premises in dispute, by a full warranty deed, to Eliza N. Naylor, who at once moved on the land, and lived there undisturbed until her death, in February, 18*93, —a period of nearly 11 years. This Mrs. Naylor was a widow, previously named Brown. She was the mother and grandmother of the defendants in this proceeding. After her purchase of this land she married one Jay Brown, a witness in this proceeding. After Mr. and Mrs. Burns sold the land, in 1882, they and the younger children removed to Alpena.

The complainants filed this bill, claiming that the proceedings to sell the land were void, that the equitable title remained with the ¡complainants, and asked that the legal title held by the defendants be decreed to be in the complainants. The relief asked was granted by the learned circuit judge, and the case was brought here by appeal.

It is claimed that the complainants are entitled to the decree which was rendered'—First, because the premises in question was their homestead; second, because they are the' equitable owners and have the equitable title to the lands described in the bill of complaint. It is claimed that, inasmuch as the title in fee was not in Mr. Louden in his lifetime, but the land was held by a partly-paid certificate, Mrs. Louden, as administratrix, could not make' an assignment of this certificate which would convey any title. The record discloses that she not only assigned the certificate in question to Mr. Burns, but that she also endeavored to sell the land in question, as real estate, after having petitioned the probate court for leave to do so.

Section 5347, 2 How. Stat., provides that—

“Whenever any purchaser or assignee of a purchaser shall die or shall have died before the issuing of a patent for the lands described in any such certificate, his executor or administrator may sell such certificate, and all the right, title, and interest which the deceased had in the lands therein described, for the payment of debts, upon obtaining license therefor, and proceeding in the same manner, as near as may be, as is provided by law for the sale of real estate by executors and administrators for the payment of debts.”

This would seem to authorize the sale of the land described in such certificate as real estate, and it is claimed on the part of the defendants that the land was in fact sold as real estate by the direction of the probate court, and that the sale was confirmed; that the assignment made by Mrs. Louden, as administratrix, of the certificate, was simply to comply with the requirements of the land department, and enable Mr. Burns to get a deed; and it seems to us that this contention has a good deal of force.

So far as we have been able to discover in this record, the only way in which the homestead had been set aside as such was by the action of Mrs. Louden after she had filed a petition for leave to sell the real estate, and when she procured the same to be surveyed by the county surveyor. When she advertised the lands for sale, she advertised them for sale “subject to the homestead rights of the widow and children of said deceased therein.” After the sale, she made a report and a deed describing the land sóidas a “homestead consisting of 40 acres of land, as selected by the widow of said John Louden, for herself and minor children of said deceased, as surveyed and set off by Thomas McGinn;” describing the same land a description of which is in the bill of complaint. This sale was made as described above, subject to the interest that she and the minor children of said deceased had in the land as a homestead. Are these complainants in a condition now to attack this proceeding ? They are all of age, excepting Mrs. Foster, who is married and living with her husband in a home of her own. Had the mother of these complainants continued to live upon the land, none of them would be entitled to any interest therein as a homestead, unless they in fact occupied it with her, or desired to occupy it, during their minority. She and they having left it long ago, and all of them having attained their majority, have they an interest which they can enforce in this proceeding? In the case of Drake v. Kinsell, 38 Mich. 232, it is stated:

“The homestead right presents the last question for our consideration. The land is exempted only while it is occupied as a homestead by the widow and minor children. Subject to the homestead right, therefore, the lands are assets, when needed for the payment of demands against the estate. In this case the widow became the purchaser, and when she sold and left the land, if she did so,—as we must infer from this record that she did,—we do not see how any one was in position to raise the question of a homestead. We are not informed when the children came of age, but it clearly appears they were so when this suit was brought, and that is all it is important for us to know on that subject.”

1 It was held in the case of Robinson v. Baker, 47 Mich. 619, that the constitutional and statutory exemption of a homestead from forced sale for the satisfaction of the debts of the owner, and from being conveyed or mortgaged by the owner without the consent of his wife, and which extends the protection for the benefit of the widow and minor children after the owner’s death, does not preclude proceedings for partition, as between the heirs at law or their assignees. In Dei v. Habel, 41 Mich. 88, it was held that a widow may deprive herself of 'her homestead.rights by marrying again; and in the case of Griffin v. Johnson, 37 Mich. 87, that she may do so by uniting with the administrator in a mortgage to pay the debts of her deceased husband. In the case of Showers v. Robinson, 43 Mich. 502, it was held that the claim of a widow to a homestead right, in behalf of herself and her children, does not bring in question the validity of an administrator’s sale to pay debts of the intestate, since the sale must be deemed made subject to the homestead right; and the court did not determine the question whether or not the real estate may be sold during the occupancy by the widow and minor children as a homestead, and the discussion proceeds on the theory that the question is yet an open one. Justice Cooley, after citing the case of Drake v. Kinsell, supra, makes use of the following language: “The validity of the sale was attacked, but it had been duly licensed by the probate court, and was therefore not void, and no party interested had appealed. The widow, after her purchase, had sold the land and removed from the premises, and it was not pretended that the homestead right existed afterwards.” The court, in deciding Drake v. Kinsell, held that the sale could not be attacked collaterally. Mr. Justice Cooley then proceeds to say:

“It was not decided in that case, nor was it necessary to decide, that the course adopted was the most suitable. It seems plain that the practice followed in Illinois and Ohio is more for the interest of all concerned; and, if an application for a sale subject to the homestead right should be contested, it is probable that some method would be found, not inconsistent with the statutes, of so dealing with the case as to protect at once the interests of the family and of the creditors. But, at most, a sale subject to the homestead right would be voidable on appeal. It would not be void.”

We think it clear that if this decree is to stand, now that the children have attained their majority (excepting Mrs. Foster, who has a home elsewhere), it must stand upon other grounds than because the sale is void on the ground that the land was a homestead.

The other ground upon which it is claimed that this sale is void is that the administratrix sold it to her husband, and that his conveyance to her shows conclusively, in the absence of any explanation, that it was in reality a sale to herself, and, under our statute, void; that there is no presumption of honesty in a transaction by which the title of a cestui que trust is divested, and invested in the trustee. The record shows that Mr. Burns became the purchaser on January 26, 1878. He did not convey until July 3, 1879. We do not think the facts bring the case within the decision of Winter v. Truax, 87 Mich. 324, or McKay v. Williams, 67 Mich. 547. It is true that the price paid by Mr. Burns for this 40 acres was very small, but it is also true that its appraised value was but $730, and that it was sold subject to the homestead rights of the widow and minor children, while the 120 acres in section 28, which was appraised at $600, and which was sold to Albert Pack, brought but $1, and the other land, which was inventoried at $1,015, brought at the administratrix’s sale but $238. The record discloses that these sales were open; that they had- been advertised; that the usual and legal advertisement had been published.

It is strongly urged that as the sale to Burns, and by him to Mrs. Louden, was fraudulent and void, Mrs. Naylor would get no better title than they had, and that she was not a bona fide purchaser. The record does disclose that Mrs. Naylor lived near these premises, and knew them while they were occupied by Mr. Louden and his family, and there is some testimony on the part of Jay Brown that he had some talk with her about the purchase before she made it. It is very evident, however, that Mr. Brown’s testimony is not entitled to very much credit. It appears that he himself, after he claimed to have had the talk with Mrs. Naylor, loaned her $300, and took a mortgage on the same land. It also appears from his testimony that Mrs. Naylor consulted Mr. Clayberg, a reputable attorney, before making the purchase, and that, after having done so, she paid $1,200 for this land, and took a deed of it. Taking the testimony contained in the record as a whole, it cannot be said that this was not the full value of the land at that time. This purchase was followed by Mrs. Naylor’s occupancy of the land for 11 years, until her death. Four years had elapsed after the sale by the administratrix before this purchase was made. The fact that Mrs. Naylor advised with counsel, and paid the full value of this land, in cash, for it, together with the surrounding circumstances of the case, satisfies us of her good faith in buying these premises. In many respects this case is analogous to the case of Otis v. Kennedy, 107 Mich. 312, where there is a very full review of the cases, and a discussion of the principles that should control this phase of the case. It will not be necessary to repeat them here.

After a careful inspection of the record, we do not think the complainants have made such a case as to entitle them to the relief prayed for. The decree of the court below is reversed, and one entered dismissing the bill 'of complaint, with costs.

Long, C. J., Grant and Hooker, JJ., concurred with Moore, J.

Montgomery, J.

(dissenting). I am not able to agree with the conclusion reached by my brethren. In my judgment, the sale by Mrs. Burns, as administratrix, to her husband, by which, if authorized, at least an inchoate right of dower would vest in her, was invalid.


author: Grant, J.

text:
    REIER v. DETROIT STEEL & SPRING WORKS.
    Master and Servant—Independent Contractor—Liability for Injuries to Employe.
    In an action for personal injuries based upon the relation of master and servant, there can be no recovery where the evidence shows that the plaintiff was not employed by defendant, but by a contractor, to whom defendant furnished the building and appliances about which the plaintiff was employed, and who paid, and had exclusive control of, the workmen.
    Error to Wayne; Lillibridge, J.
    Submitted April 9, 1896.
    Decided May 12, 1896.
    Case by August Reier, an infant, by Charles Reier, his next friend, against the Detroit Steel & Spring Works, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      James H. Pound, for appellant.

      Wells, Angell, Boynton & McMillan, for appellee.
   Grant, J.

Plaintiff, a boy 15 years old, was seriously injured by the bursting of an emery wheel, at which he was engaged in grinding the burrs off some coil springs. The court directed a verdict for the defendant. The declaration is based upon the existence of the relation of master and servant. It alleges that plaintiff was in defendant’s employ, and that it was guilty of negligence in placing him, inexperienced, at dangerous work, without warning or instruction; in not furnishing him with a safe machine to work upon, in that the journals upon which the wheels ran were worn, so that they jumped and wobbled ; that the wheel itself was out of condition, worn out, and needed turning; that it was not provided with blowers, and did not have a. wire web for strengthening it.

The instruction of the court was correct. Plaintiff was not in the employ of the defendant, but in the employ of a contractor, to whom the defendant furnished the building, tools, and machinery with which to perform the work contracted. The contractor employed and paid all his workmen, including the plaintiff, and had the sole control and direction over them. If it was negligence to set the plaintiff at this work, about which we express no opinion, the contractor alone was at fault. Plaintiff testified that he was employed and paid by the contractor, and was not employed by the company.

The defendant, upon a proper declaration, could be held liable only for failure to furnish suitable machinery, and to keep it in proper repair, provided it was its duty to do so, upon sufficient notice. The emery wheel was one of the kind in common use, and new. There was no evidence to show that the machinery and appliances were not in good condition, and safe, when furnished.- The defendant is not responsible for their negligent use, or for the rate of speed at which the wheel was running.

The judgment is affirmed.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


text:
    TOWNSHIP OF CRYSTAL LAKE v. HILL.
    1. Official Bond—Liability of Surety—Notice—Estoppel.
    One who signs his name as surety to an official bond, and leaves it with another to procure thereto the signature of an additional surety, is estopped from denying his liability thereunder, where the bond has been properly accepted and filed, even though such additional signature was not obtained as promised, unless the structure of the bond notifies the official whose duty it is to act upon it that it is incomplete; and the mere fact that there was after the last signature a line where another surety could have signed, with the word “surety” written at the end, does not constitute such notice.
    2. Same—Principal and Agent—Evidence as to Authority.
    The question whether a notary, with whom a township treasurer’s bond was left by a surety to procure the signature of another surety thereon, was the agent of the surety or the township, should not be submitted to the jury upon evidence merely that the treasurer told the township supervisor that it was left with the notary for acknowledgment by the sureties, and that the supervisor told the notary to procure the acknowledgments, and deliver the bond to his son to be forwarded to him.
    Error to Benzie; Aldrich, J.
    Submitted April 9, 1896.
    Decided May 12, 1896.

      Assumpsit by the township of Crystal Lake against Thomas J. Hill and others upon an official bond. From a judgment • for defendants, plaintiff brings error.
    Reversed.

      D. G. F. Warner and Smurthwaite & Fowler, for appellant.

      Wilson & Bailey and Pratt & Davis, for appellees.
   Montgomery, J.

This is an action on a township treasurer’s bond, given by defendant Hill, as principal, and claimed to have been signed by the other defendants as sureties. The defendants admit having signed some bond at about the date of the alleged execution of the one in suit, but testify that the bond which they signed was on a printed form, while the one produced is wholly in writing. This question is one of fact for the jury, and need not be discussed further, as the question was properly submitted to the jury. It is quite evident, however, that the case turned upon another question.

The bond sued upon appeared in proper filing, and was regular in form, and in its body contained no names of sureties other than those who signed the bond. There was after the last signature a line where another surety could have signed, and the word “ surety ” written at the end. Other than this, there was nothing to apprise the township authorities that the bond was in any way incomplete, or that it had not been executed by all who engaged to sign it. The defendants gave testimony tending to show that the previous year Chandler Bros., bankers at Frankfort, had been sureties on the treasurer’s bond, and that, on the occasion of the defendants’ signing the bond, which they signed for the year in question, which plaintiff claims is the bond in suit, Borne Z. Chandler, a member of the firm of Chandler Bros., assured them that it would not be delivered until it was signed by his brother, Eugene Chandler, and it was left with Borne Z. Chandler with this understanding. The case thus far is ruled by previous decisions of this court. McCormick v. Bay City, 23 Mich. 457; Brown v. Probate Judge, 42 Mich. 501. It is firmly established by these cases that where a surety intrusts an official bond to another to deliver, uppn a promise that others shall sign as sureties, he is after-wards estopped to deny his liability, even though the additional surety is not obtained, if the bond in its structure does not apprise the official whose duty it is to act upon it that it is incomplete; and in Brown v. Probate Judge it was held that, though there was a blank space for another surety in the body of the bond, and “ sureties ” was written therein in the plural, this was not sufficient notice of the incompleteness of the bond. This case is certainly not stronger for the sureties on this point, and must be held to be ruled by that, unless the defendants are right in the contention which they make that Rome Z. Chandler was the agent of the township or of the supervisor.

The circuit judge submitted to the jury whether such an agency existed. An examination of the testimony convinces us that there was error in this. It is not contemplated that the supervisor shall perform the service of procuring bondsmen for the treasurer, much less that he shall assume that duty, and then delegate it to another; nor do we think the testimony in this case, in any fair view which can be taken of it, shows any such purpose. It appears that Hill had been accustomed to do his banking with Chandler Bros.; that the bond in question is in the handwriting of Hill; that he (Hill) left it with Rome Z. Chandler, who is a notary public, with the request that he obtain the acknowledgment of the sureties. Whether it was signed by the sureties at this time is in dispute, but it does appear that the supervisor called upon the treasurer, and asked him to file his bond. The treasurer stated that he had signed it, and left it with Mr. Chandler for the purpose stated; and thereupon the supervisor called upon Mr. Chandler, and told him to get the acknowledgment of the bond, and as he, the supervisor, was going away, to hand it to his son, and he would mail it to him. This does not show a purpose on the part of the supervisor to have Mr. Chandler act either on the part of himself or the township. It was nothing more than action .to hasten his action on behalf of Hill, and it did not change his (Chandler’s) relations to Hill.

With the elimination of this theory, the issue presented for trial is so narrowed down that we think it will be unnecessary to discuss the other questions raised, as it will be easy to confine the testimony to the points open for litigation.

Judgment will be reversed, and a new trial ordered.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.