text:
    POUND v. CLUM.
    Fraud — Exchange of Properties — Misrepresentation of Fact — Rescission.
    Representations by defendant and his agent, in an exchange of city property for a farm, that defendant’s equity in the property was worth $8,200, while in fact it was worth-only about $3,650, which representations were relied upon, by plaintiffs, who informed defendant and his agent that they were without knowledge of values of city property and would rely upon the representations made, held, sufficient to sustain a decree for plaintiffs rescinding the transaction on the ground of fraud. *
    Appeal from Genesee; Stevens, J.
    Submitted October 23, 1918.
    (Docket No. 110.)
    Decided December 27, 1918.

      Bill by James Pound and others against Sherman S. Clum and others to rescind an exchange of real property on the ground of fraud. From a decree for plaintiffs, defendants Clum appeal.
    Affirmed.

      Otto & Davis (Farley & Selby, of counsel), for plaintiffs.

      George W. Cook, for appellants.
    Plaintiffs were, in December, 1916, the owners of 160 acres of land In Genesee county, Michigan, worth $85 an acre, or a total of $13,600. The farm was subject to mortgages aggregating $3,550. The value of the equity, therefore, was the sum of $10,050. Defendants Clum were at the same time the owners of eight houses and lots in the city of Saginaw. Plaintiff James Pound and his wife Letta Pound, who owned 120 acres of the 160 acres constituting the farm, were farmers and had no knowledge of the values of the Saginaw city property. Plaintiff Grace Chapel, who owned the other 40 acres of the farm, was a school teacher and was likewise ignorant of such values. Being desirous of disposing of the farm, plaintiffs listed the same for sale with one Corrington. The fact that plaintiffs desired to dispose of their farm became known to defendant Sherman S. Clum, who, with his son, examined the place some time in the month of November, 1916, and as a result of such examination proposed an exchange of said farm for his Saginaw property. About December 1st, plaintiff Pound with Corrington went to Saginaw and visited the eight pieces of property, going into seven of them, and spending about eight or ten minutes in each of the seven. Defendant A. O. Heine acted as agent for defendants Clum in the transaction. At the first interview a schedule of the Saginaw property with the values and incumbrances thereon was furnished by Heine to plaintiffs. The schedule follows:

      Mortgage.
    “559 Stanley St. . . $1,800.00 $722.00
    1505 Holland Sc. . 3,300.00 1,600.00
    1408 Niagara St. . 1,000.00 400.00
    1410 Niagara St. . 1,000.00 400.00
    219 Perry St. .. . 1,000.00 400.00
    613 Franklin St.
    617 Franklin St. . 5,100.00 2,900.00
    435 Howard St. . 2,000.00 600.00
    $15,200:00 $7,022.00”
    On the 16th day of December a proposition to exchange said properties was made, plaintiffs’ property to be taken over at the sum of $13,600 subject to a mortgage of $3,550. Defendants’ property to be put in at a valuation of $15,200, subject to mortgages amounting to about $7,000; ‘defendants to pay the sum of $1,850 in cash as difference. The statement of Values and equities as shown by Exhibit D follows:
    “Price of city property.$15200.00 Price of farm.$13600.00
    Mortgage............ 7000.00 Mortgage .... 3550.00
    Equity .............. $8200.00 Equity ......$10050.00
    Difference due Pound. 1850.00
    Total .............$10050.00 $10050.00”
    Following negotiations and on December 22, 1916, deeds of the several properties, were executed by the parties on the bas of the proposition above set forth. The deeds were delivered and the boot money paid over on December 30th, said money having been raised on plaintiffs’ farm through a rearrangement of the mortgages and increase thereof. Plaintiffs remained in possession of the farm and defendant's Clum remained in. possession of the Saginaw property. Following the delivery of the deeds plaintiffs listed the Saginaw property with defendant Heine for sale, but very soon became convinced that they had been defrauded in the transaction and on March 6th filed their bill of complaint herein seeking a rescission of the transaction, demanding a reconveyance of their farm property to them, and tendering a reconveyance of the Saginaw property to defendants. The bill charges fraud and misrepresentation on the part of the defendants Clum and their agent, Heine. The material allegations of the bill were denied in an answer filed by defendants Clum, and the parties went to a hearing in open court, where much testimony was introduced touching the alleged misrepresentation on the part of the defendants as to the value of the Saginaw property. As a result of the hearing a decree was entered by the terms of which the defendants were ordered to reconvey to the several plaintiffs the farm in question and the plaintiffs were decreed to reconvey to defendants the property received by them and further providing for an adjustment of the money differences between the parties growing out of the transaction. From this decree defendants Clum have appealed.
   Brooke, J.

(after stating the facts). From a careful perusal of this record, it appears to have been conclusively proven that plaintiffs’ equity in the farm in question was actually worth $10,050. . By an overwhelming weight of the evidence it appears that defendants’ equity in the property exchanged, instead of being the sum of $8,200 as shown by Exhibit A, was in fact about $3,650. As shown by the testimony given by and on behalf of the plaintiffs, the representations made by Clum or by his agent, Heine, were as follows:

“That he_ could sell them just as quick as he got back. I think the property he referred, to was the west side over by Perry and' Niagara, for which he said he had buyers. He said he could sell it at a good advance. * * *
“ ‘Are you positive that the property is worth that . — you can get the money out if I listed them with him?’ He said they were worth more and he could get more money than I had in them out of them. * * *
“He said that property cost him more than he was selling them at, they were worth more. * * *
“He said it could be readily converted into cash at the price in Exhibit ‘A’ and perhaps more. * * *
“Mr. Heine represented that the property could be readily converted into cash, and that they could be sold for the amount they were listed for. * * *
“I heard him tell Mr. Pound that was a fair value for those various properties and that he could sell it upon the market for that price or better; that he could readily convert it into cash for Mr. Pound at that price or better.”

It is in evidence that plaintiffs told defendant Clum and his agent, Heine, that they were totally ignorant of the values of the Saginaw property and that they relied upon the representations as to value made:

“I thought they were telling me the facts and relied upon their judgment.”

Broadly speaking, the position of defendants is that all the alleged representations as to value amount to mere “puffing”; that plaintiffs were in just as good a position to judge of the value of the property as were defendants and that the case made by plaintiffs upon the record is such that a decree should have been rendered in favor of defendants under the rule of caveat emptor. Many Michigan cases are cited in support of the appellants’ theory which we find it unnecessary to discuss at large.

The rule as contended for by defendants that where vendor and vendee have equal knowledge or equal means of acquiring information and where nothing is done by the vendor to throw the purchaser off his guard or to divert him from making inquiries. and examinations which a prudent man ought to make, and when there is no concealment of facts of which the vendor has knowledge and of which the vendee is unable to obtain knowledge, mere representations of values are considered as matters of opinion and not of fact, is recognized. The only question here involved is as to the applicability of the rule under the facts in this case. Plaintiffs were absolutely unacquainted with real estate values in the city of Saginaw. They saw the properties in question but three times before the deeds were made and but for a few minutes on each occasion. That they relied. upon the representations made by defendants and their agent, Heine, to their injury is not open to question upon this record. We are of opinion that the relief granted is warranted under the following decisions. In McDonald v. Smith, 139 Mich. 211, it is said, at page 222:

“The rule that expressions of opinion do not constitute actionable fraud (Myers v. Building Ass’n, 117 Mich. 389; Chafey v. Mathews, 104 Mich. 103 [27 L. R. A. 558]), which is a rule subject to exceptions (see French v. Ryan, 104 Mich. 625), ‘is applicable only when the opinion stands by itself as a distinct thing.’ See People v. Peckens, 153 N. Y. 593. And it has been said by an eminent jurist:
“ ‘It is material to observe, that it is often fallaciously assumed that a statement of opinion cannot involve tbe statement of a fact. * * * If the facts are not equally known to botb sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.’ Lord Bowen, in Smith v. Land and House Property Corp., L. R. 28 Ch. Div. 15.”

In the case of Yanelli v. Littlejohn, 172 Mich. 91, plaintiff had been induced to purchase a farm under representations made by the owner as to the quality of the land and its value. He examined the land and sent his lawyer to investigate the same, who reported the land poor and advised him not to buy. The court there said:

“A defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud. Lewis v. Jacobs, 153 Mich. 664 (117 N. W. 325). It appears that plaintiff did not rely upon the advice and statements of Barassa, the attorney, but acted in disregard of such advice. Had his attorney advised him to purchase the land, and had he relied upon such advice, then the defendant would not have been liable; but the fact that Barassa advised him not to purchase, and that he did not follow the advice, might be urged as evidence of the strength of the representations claimed to have been made by the defendant. The question is not, Was he warned? but, Was he deceived and defrauded by the defendant?”

See, also, Face v. Hall, 177 Mich. 495. The case of Pratt v. Allegan Circuit Judge, 177 Mich. 558, is upon its facts very similar to the case at bar. Speaking through Mr. Justice Stone, we there said:

“Can it be said that the language above quoted, that the defendants ‘did then and there falsely represent and pretended to, this affiant that the real estate described in said contract was worth $2,100 cash in the real estate market of the city of Kalamazoo, and that the equity in- said contract was well worth the sum of $1,225 cash, and that said real estate described in said deed above mentioned was worth the sum of $300 cash in the real estate market of the city of Kalamazoo, and that each of said pieces would readily sell for the sums above named at any time, and that said sums were a fair cash price for said pieces of real estate/ was mere ‘seller’s talk/ or may it be said to be the representation of facts which might be relied upon by the purchaser and become an inducing cause of the trade? We are of opinion that the representation that property would readily sell in a certain market at a given price is the representation of an alleged fact, and, where relied upon as here stated, may be made the basis of a false representation.”

An attempt is made by counsel for appellant to distinguish the Pratt Case, but it is asserted that if not distinguishable:

“We are compelled to say that our court has gone farther in its decision of this case than it has in any other adjudicated case in Michigan, and its decision is questionable unless it was intended by the court to lay down a new rule and extend the scope of exceptions to the rule of caveat emptor.”

We are of opinion that the cases are not distinguishable and that Pratt v. Allegan Circuit Judge, supra, is in line with our former decisions.

The decree is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    CRISP v. ANDERSON.
    1. Wills — Construction—Intention. .
    In the construction of a will, the intention of the testator, if possible, should be gathered from the four corners of the instrument, and effect given to such intention if legally possible.
    2. Same.
    Where testator by one clause of his will gave to his daughter-in-law five dollars, “which sum is all I wish said M. and any of her blood relations ever to have of my property”; and by another clause gave all the rest, residue, and remainder to his only son, “but I want my son Howard to make such disposition of the property * * * that it shall be kept in the line of the Stafford blood and if any be poor or crippled I would like my said son to favor those first out of said property,” held, that it was the intention of testator to give to the son an absolute estate in fee in the property devised, and that he was free to follow his father’s wishes or not as he saw fit.
    See note in 37 L. R. A. (N. S.) 646.

      3. Same — Probate Courts — Duir to Construe Wills.
    It is elementary that a prohate court may construe wills for certain purposes, and that it must do so for the purpose of distribution.

      4. Same.

      Held, that the orders of the probate court distributing the residue of the estate to the son, and later, on his death, to his widow, was proper.
    Appeal from Hillsdale; Chester, J.
    Submitted October 22, 1918.
    (Docket No. 94.)
    Decided December 27, 1918.
    Bill by Clara Crisp and others against Ellsworth Anderson and others for a construction of the last will of Elmer Stafford, deceased. From an order dismissing the bill, plaintiffs appeal.
    Affirmed.

      James Donnelly, for plaintiffs.

      Frankhauser & Cornell and Chandler & Retan, for defendants.
    On July 23, 1894, Elmer Stafford died testate. Two paragraphs of his will follow:

      “Eighth. I give, devise, and bequeath the sum of five dollars in money out of any of my estates to Martha Stafford, the wife of my son Howard Stafford, which sum is all that I wish said Martha Stafford and any of her blood relations ever to have of my property, excepting children she may have by my said son, Howard Stafford.

      “Ninth. I give, devise, and bequeath all the rest, residue and remainder of my estate, both real and personal, to my said son, Howard Stafford, Jie to go right on and use it according to his own judgment after I am dead and gone, but I want my said son Howard to make such disposition of the property I hereby will to him that it shall be kept in the line of the Stafford blood and if any be poor or crippled X would like my said son Howard to favor those first out of said property.”

      Howard Stafford, only son and sole heir of Elmer Stafford, qualified as executor of his father’s will and on July 24, 1895, his final account as such executor was duly allowed by the probate court of Hillsdale county and the balance of said estate, both real and personal, was assigned to him as sole residuary devisee and legatee in fee simple. Howard Stafford died March 14, 1909, intestate, leaving a widow, Martha J. Stafford, but no children nor heirs of deceased children. Martha J. Stafford qualified as administratrix of said estate and her final account as such was allowed on September 25, 1909, and the residue of said estate was assigned to her as such widow. On March 29,1916, Martha J. Stafford died intestate leaving no children, father, mother, brothers or sisters surviving her. Upon petition one Orville B. Lane was appointed administrator of said estate, an inventory of which showed personal estate valued at upwards of $3,000 and real estate valued at $8,500. The real estate being the same farm which was devised by Elmer Stafford to his son Howard Stafford in 1894. Said administrator filed a final account and petitioned the probate court for an order assigning and distributing the residue of said estate to the heirs of said Martha J. Stafford. Thereupon and before the day set for the hearing upon said petition plaintiffs herein, who are of the Stafford blood, filed their bill of complaint'against defendants herein, who are represented to be the heirs at law of Martha J. Stafford, deceased. The bill prays for a construction of the will of Elmer Stafford, deceased, and that the probate orders of July 24, 1895, and September. 25, 1909, assigning said estate first to Howard Stafford and later to Martha J. Stafford be set aside; further that Lane, administrator, be required to account to plaintiffs for such of the estate as is now in his hands together with the rents and profits thereon.

      To this bill of complaint defendant Lane, administrator, interposed a motion to dismiss. A like motion was interposed on behalf of one Waldron E. Brit-ton, one of the defendants and heirs at law of Martha J. Stafford, deceased. Upon hearing, the court below granted defendant’s motion and plaintiffs’ bill was dismissed. In this court plaintiffs review said order.
   Brooke, J.

(after stating the facts). Counsel for plaintiffs say there are two questions involved:

“First. The proper construction and meaning of the will of Elmer Stafford, deceased, particularly of the eighth and ninth paragraphs.
“Second. The right of plaintiffs at this time to be heard in court on their bill of complaint under all of the allegations and all reasonable presumptions therefrom and to the relief that plaintiffs pray for.”

After an exhaustive analysis of sections eight and nine of the will, counsel for plaintiffs asserts:

“Taking this view of the ninth paragraph and reading it in connection with the eighth paragraph preceding, the purpose- of the testator is so evident that it is submitted the court cannot disregard its plain and clear meaning to give to Howard Stafford only a restricted and limited estate and right of control over the property for the purpose of having it confined to the blood relations of the deceased.
“It was clearly the purpose of the testator to give to Howard Stafford the benefit of the use of said estate during his life with the power to convey and dispose of the same at or before his death, either to his child or children if any survived him, and if no child or children survived, then under the will the property shall go to the blood relations of the deceased living at the time of his death, under the rules of law governing the disposition of estates under last wills and testaments.”

—and claims that this interpretation of the language of the will is warranted by our decisions in Gadd v. Stoner, 113 Mich. 689, and Robinson v. Finch, 116 Mich. 180. We find ourselves unable to agree with this construction of the language of sections eight and nine of the will. There is no doubt that we have frequently held that a cardinal rule of construction is to ascertain, if possible, the intention of the testator from the four corners of the instrument and after such intention is so ascertained, to give it effect if that be legally possible. Applying that rule to the construction of the two sections of the will in question we are constrained to the view that it was the intention of Elmer Stafford to give to his son, Howard, an absolute estate in fee in the property devised. The expression in the eighth paragraph:

“which sum is all that I wish said Martha Stafford and any of her blood relations ever to have of my property,”

—and that in the ninth:

“but I want my son Howard to make such disposition of the property I hereby will to him that it shall be kept in the line of the Stafford blood and if any be poor or crippled I would like my said son Howard to favor those first out of said property.”

—are both clearly of a precatory character. The testator conveyed to his son an absolute estate in fee with full power of disposition but desired his son tknow what his wishes were with reference to the ultimate destination of the property so devised. No language is found in either of the sections in question placing any legal limitation upon the estate thereby conveyed to the son, nor can it be said (regard being had for the language used), that the testator desired to impose any such limitation. That the son failed to heed the admonition of his father and to give effect to his father’s clearly expressed desire is unquestioned, but that is a contingency against which the testator could have, but did not, provide. It affords no argument for a strained or unusual construction of the language used. This construction of the will under consideration falls veil within the following decisions: Jones v. Jones, 25 Mich. 401; Dills v. La Tour, 136 Mich. 243; Moran v. Moran, 143 Mich. 322; Killefer v. Bassett, 146 Mich. 1; Turnbull v. Johnson, 153 Mich. 228. It is elementary that a probate court may construe wills for certain purposes and that it must do so for the purpose of distribution. Parkinson v. Parkinson, 139 Mich. 530.

We are of opinion that the order of distribution made by the probate court of Hillsdale county, bearing date July 24, 1895, by the terms of which the residue of the estate of Elmer Stafford was assigned to Howard Stafford and which required a construction of the will of Elmer Stafford, was proper and that the construction of the disputed sections of the will which was the basis of the order, is the only construction possible. Our determination upon this point renders consideration of the second question unnecessary, for, if the construction of the will by the probate court was correct, the allegation in the bill of complaint that such construction was brought about through fraudulent representations made by Howard Stafford is wholly unimportant. It is further unnecessary in this case to determine the claim made on behalf of the defendants that the orders of the probate court are as to plaintiffs res adjudicala, though upon this point see Calhoun v. Cracknell, 202 Mich. 430.

The decree dismissing the bill is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    JOY v. INGHAM CIRCUIT JUDGE.
    Costs — Expert Witnesses — Statutory Pees.
    Section 12557, 3 Comp. Laws 1915, limiting the right to hire and pay expert witnesses in excess of the statutory fee, and providing that an award in such cases shall be made by the court, is no authority for the court to tax such excess fee so allowed against the defeated party.
    Mandamus by William H. Joy and another to compel Charles B. Collingwood, circuit judge of Ingham county, to set aside an order taxing costs.
    Submitted October 8, 1918.
    (Calendar No. 28,376.)
    Writ granted December 27, 1918.

      Cummins & Nichols, for plaintiffs.

      L. B. Gardner and O. J. Hood, for defendant.
   Brooke, J.

Mandamus. Petitioners, who were defendants in an equity proceeding, were finally defeated in this court where an opinion was filed requiring petitioners, as such defendants, to pay the costs of both courts. Saier v. Joy, 198 Mich. 295. In the original case the plaintiffs had called and examined as experts, six physicians. After the opinion in this court went down plaintiffs applied to the circuit court for an order allowing expert witnesses’ fees to said six physicians under 3 Comp. Laws 1915, § 12557, which reads as follows:

“No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum. Any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of a contempt of court, and on conviction thereof be punished accordingly.”

To this application defendants (petitioners herein), interposed objections as follows:

First. That under 3 Comp. Laws 1915, § 12558, the number of expert witnesses should be limited to three.

Second. That the statute did not in terms direct or authorize the court to allow or tax the sums so awarded as a part of plaintiffs’ costs in the case against, the opposite party.

Whereupon the court made an order limiting the number of expert witnesses to three and fixing compensation at $25 each. Thereafter plaintiffs in the equity case filed their bill of costs including therein as taxable costs, the $75 paid for expert witnesses. This item was not allowed by the taxing officer in the circuit court. Upon appeal to the circuit judge it was allowed. Petitioners herein pray for a mandamus requiring the circuit judge to disallow said item.

It is pointed out by counsel for respondent circuit judge that although no statute fixes the amount of solicitors’ fees awarded by the court of chancery, the Supreme Court, by Circuit Court Rule No. 64, allows such fees to the prevailing party and that under 3 Comp. Laws 1915, § 12019, subd. 5, this court has authority by rule to regulate costs. It is urged that the statute above quoted has obviated the necessity for such rule. Cases are cited from some jurisdictions (Snyder v. Iowa City, 40 Iowa, 646; Chadwick v. Insurance Co., 158 N. C. 380 [74 S. E. 115]; Farmer v. Stillwater Water Co., 86 Minn. 59 [90 N. W. 10]), which it is claimed support the contention advanced by defendant’s counsel. These decisions were announced under statutes materially different from our own and when examined carefully in the light of those statutes we are of opinion they cannot be considered as authority for defendant’s position. Before the passage of Act No. 175, Pub. Acts 1905 (now 3 Comp. Laws 1915, § 12557), there was no legal limitation upon the right to hire and pay expert witnesses. The purpose of the legislation was, we. think, to limit a right already existing and correct a practice which in the legislative mind appeared to be a growing abuse. No new rights are conferred by the statute. Before its passage a litigant might hire as many experts as he pleased and pay them any sum agreeable to himself and his witnesses. Since its passage only such sums may be paid for expert testimony as the court shall direct. The statute is absolutely silent upon the question of taxing such fees against the opposite party. The authority to tax costs is wholly statutory. Auditor General v. Baker, 84 Mich. 113, and Hester v. Com’rs of Parks and Boulevards, 84 Mich. 450.

We conclude that the circuit judge lacked statutory warrant to tax the fees in question in favor of the prevailing party in the chancery cause and therefore that the mandamus must issue as prayed, with costs in favor of the plaintiffs and against the principal party in interest.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


author: Moore, J.

text:
    GOODSPEED v. GOODSPEED.
    1. Marriage — I-Iusband and Wife — Common-Law Marriage.
    Although the marriage ceremony between plaintiff and defendant was void because performed before the granting of a decree of divorce to plaintiff’s former husband, where the parties continued to live together after the granting of the decree, holding themselves out to the world as husband and wife, held, that the relation of husband and wife existed.
    2. Divorce — Property Settlement — Rescission.
    A property settlement between plaintiff and defendant, in contemplation of divorce proceedings between them, may not be repudiated by plaintiff on the ground that defendant was worth more than he represented himself to be, where his financial standing was investigated by plaintiff and her counsel before the settlement contract was entered into.
    3. Same — Costs.
    Where litigation was not avoided as contemplated in the settlement, held, that plaintiff should be awarded costs in addition to amount agreed upon therein.
    4. Same — Cruelty.
    Evidence held, insufficient to sustain plaintiff’s averments of cruelty.
    5. Same — Moral Laxity.
    Evidence of a moral laxity on the part of the plaintiff utterly incompatible with the marriage relation, held, to establish a cause for divorce.
    6. Same — Custody of Child.
    In such case the custody of an 11-year-old boy should be given to the husband, with an arrangement for the wife to have him with her at proper times and occasions.
    Appeal from superior court of Grand Rapids; Dunham, J.
    Submitted April 4, 1918.
    (Docket No. 32.)
    Decided December 27, 1918.
    Rehearing denied May 1, 1919.
    Bill by Maude I. Goodspeed against John W. Good-speed for a divorce. Defendant filed a cross-bill for affirmative relief. From a decree for defendant, plaintiff appeals.
    Reversed, and decree entered.

      Charles B. Cross and Charles R. Brown, for plaintiff.

      Thomas P. Bradfield (Kleinhans, Knappen & Uhl, of counsel), for defendant.
   Moore, J.

Plaintiff filed her bill for divorce in this cause on September 80, 1916, alleging extreme cruelty and fraud on the part of defendant in the procuring of a property settlement from her, and praying for appropriate relief. Defendant answered and filed a cross-bill alleging that the parties never were husband and wife, and praying that the trust fund of more than $30,000 mentioned in the property settlement be restored to him, or if the court should find the parties to be husband and wife, that a divorce be granted him on the ground of extreme cruelty. Both parties sought the custody of the minor child. The court made a decree dismissing the bill for divorce, adjudging plaintiff never to have been the wife of defendant, cancel-ling the settlement which had been agreed upon after their separation,' giving to defendant the custody of the minor child, restraining plaintiff from the use of the Goodspeed name, and refusing an allowance of attorneys’ fees. The case is brought here by appeal.

The printed record of more than 1,900 pages presents an unsavory story which it is neither possible or desirable to relate in detail. In the fall of 1905 the parties became acquainted with each other in Grand Rapids. Mr. Goodspeed was a widower 46 years old with two children. The plaintiff was an undivorced woman 25 years old, the mother of two children. The acquaintance ripened into intimate friendship with amazing rapidity. During the winter of 1905 and 1906 the parties agreed to be married as soon as the husband of the plaintiff obtained his divorce in Chicago. The plaintiff claims that defendant agreed to pay the expenses of the Lawshe divorce case, and assumed the whole responsibility therefor; that on April 5, 1906, after an interview with an attorney of Chicago (now a municipal judge) to ascertain the status of the divorce case, that the defendant told plaintiff they could get married anywhere outside of Illinois; the defendant denies this and says he got all his knowledge about the divorce from the plaintiff. The testimony of the Chicago attorney was taken, and, while it is not very conclusive, so far as it has probative value, it tends to support the claim of the plaintiff. April 6, 1906, the parties went before a clergyman at Laporte, Indiana, and a marriage ceremony in due form was performed. The record shows such relations existed between them at this time that it was high time they were married. They returned to Grand Rapids and went to keeping house in a home owned by the defendant. It turned out later that the Chicago divorce was not granted until May 4, 1906, and it is conceded the ceremony performed at Laporte did not result in a legal marriage.

The first question presented is, Did what was done subsequently create the relationship- of husband and wife? There is a great mass of testimony to the effect that they regarded themselves and were generally regarded as husband and wife. We quote the following from the testimony of defendant:

“I was always a great home man; I loved my home. Very shortly, almost immediately upon our return to Grand Rapids after the marriage, we attended a ladies’ aid society at St. Mark’s church at North Park and met a great many of my friends and acquaintances from St. Mark’s. I introduced her to quite a good many people as my new wife. We lived in the relation of husband and wife during the entire seven years except the last year. The year prior to our separation we lived apart. We agreed to disagree.”

It was at about this time that a property settlement was agreed upon from which we quote:

“Whereas because of certain irreconcilable differences between John W. Goodspeed, of Grand Rapids, Michigan, party of the first part, and Maude I. Good-speed, his wife, of the same place, party of the second part, the said Maude I. Goodspeed has recently left the home of said John W. Goodspeed, * * *
“Now therefore this agreement made and entered into this 18th day of June, in the year one thousand nine hundred and thirteen, between said John W. Goodspeed and Maude I. Goodspeed, witnesseth as follows:
“The parties to this agreement are husband and wife and were married in 1906, Mrs. Goodspeed, at the time she married had one daughter living by her previous husband; the daughter’s name is Loraine Lawshe. For the past three years Loraine, who is now fourteen- years of age has resided and made her home with Mr. and Mrs. Goodspeed and has gone by the name of Loraine Goodspeed, and has been supported entirely by Mr. Goodspeed.
“The parties have one child as the issue of their marriage, a son named John W. Goodspeed, Jr., now six years old.
_ “The parties since their marriage have lived in the city of Grand Rapids, where the husband lived for many years before their marriage. The husband is now fifty-three years of age and the wife is now thirty-two years of age. * * *
“Now, therefore, it is mutually agreed by and between the said John W. Goodspeed and Maude I. Good-speed, that they having separated and ceased all marital relations with each other, that the said John W. Goodspeed party of the first part, will make and execute under his hand, his certain promissory note in writing bearing date the eighteenth day of June, A. D. 1913, for the sum of thirty thousand dollars payable to the said party of the second part. * * *
“That the said John W. Goodspeed, party of the first part, shall also pay to the second party the sum of six thousand dollars for the purchase of a home and furnishings therefor in the city of Grand Rapids, the title of said property to be in the name of said Maude I. Goodspeed alone, within five years from this date.
“It is further understood and agreed that Maude I. Goodspeed shall have the right to remove from the former home of the parties and retain as her own, the following articles; * * *
“Said Maude I. Goodspeed agrees that she shall and will not at any time hereafter claim, demand or require any support or maintenance from him, the said John W. Goodspeed, other than the amounts herein-before provided. * * *
“And the said Maude I. Goodspeed by these presents and in consideration of the premises, forever releases to the said John W. Goodspeed all and all manner of claims and demands upon interest in the property and estate of the said John W. Goodspeed, of every name and nature which she now has or hereafter may have as the wife of him, the said John W. Goodspeed, or under the intestate laws of Michigan or any other State, or otherwise or on any other account whatsoever. * * *
“The provisions of these presents shall continue whether or not either party hereto shall procure or attempt to procure a divorce from the other, and no decree of divorce shall change the property rights from the manner herein provided; and in case a divorce is hereafter obtained by either party, this settlement shall be in full of alimony, permanent or temporary.”

The divorce was granted May 4, 1906. One year and eighteen days thereafter a boy was bom that was afterwards named John W. Goodspeed. On the 11th of April, 1917, the defendant, though he wants the marriage relation discredited, acknowledged before a notary public in writing—

“that the male child, John W. Goodspeed, Junior, to whom my reputed wife Maude I. Goodspeed heretofore gave birth on the 22d day of May, 1907, is my child, and that I am the father thereof.”

This acknowledgment was filed with the register of probate for Kent county. It is said it was done under 4 How. Stat. (2d Ed.) § 10962 (3 Comp. Laws 1915, § 11798).

There were many letters introduced in evidence addressed, My Dear Wife, and containing expressions of endearment such as sometimes characterize the correspondence of married people when they are temporarily absent from each other. Deeds and other papers were signed and acknowledged by the plaintiff as the wife of the defendant.

The question presented is not a new one in this State. It was considered in Barker v. Valentine, 125 Mich. 336 (51 L. R. A. 787), where there is a considerable collation of the authorities to be found. It is also considered in the case of Medland v. Houle Bros., 202 Mich. 532, in which an opinion was handed down July 18, 1918. These cases are controlling of the instant case, and it should have been decreed that the parties were husband and wife, and it will be so decreed in this court.

It was stated on the oral argument by one of the counsel for the defendant that if we found the parties were husband and wife that the settlement should stand. On the other hand it is claimed that when the settlement was procured defendant was a much wealthier man than he represented, that instead of being worth but $100,000 as he stated, that he was worth two or three times that amount, and that the settlement was procured by fraud and should be very materially increased. A reading of defendant’s testimony satisfies us that he was and is worth much in excess of $100,000. Plaintiff was represented by able counsel who made some investigation of Mr. Good-speed’s financial standing, and the conferences in relation to a settlement were postponed from time to time to enable him to do so. While he was not aided in these investigations by the defendant or his counsel he conducted them until he was satisfied he was worth $250,000 or $300,000. We now quote some of counsel’s testimony:

“Q. Did you have any talk with either Mr. Good-speed or Mr. Bradfield who represented him, as to starting a suit?
“A. I think I talked to Mr. Bradfield about that, yes, at various times.
“Q. What talk did you have with him?
“A. My recollection is the substance of it was, that I was not anxious to begin a lawsuit in this matter on account of the nature of the testimony and the allegations that would have to be made, and that I was anxious to get it settled out of court for that reason.
“Q. Is that about all that there was to the conversation?
“A. No, I wouldn’t say it was all; I think there was some talk — this particularly was in my mind; we had a lot of interviews.”

It is fair to assume that Mrs. Goodspeed and her counsel considered all phases of the case before entering upon the written agreement. The financial settlement contemplated that divorce proceedings might be brought and if brought it did not justify an attempt to repudiate the contract.

The record shows the plaintiff brought nothing to Mr. Goodspeed and it does not appear that she was instrumental in helping to acquire the property. It is apparent that the desire to avoid litigation was an important factor in bringing about the settlement; that has not been done, not only has the defendant repudiated the relationship' of husband to the mother of his boy, but he sought an opportunity through litigation to repudiate a solemn written agreement entered into by him. If Mrs. Goodspeed is required to pay the expenses of this unfortunate litigation it will make a great inroad upon the amount of the settlement. We think an allowance ought to be made large enough to enable her to pay all the costs ’of her litigation and keep the funds agreed upon in the settlement. We fix this amount at three thousand dollars which shall be in lieu of all other costs and the settlement shall in all other respects stand.

We now approach the most difficult question in the case. Does a cause for divorce exist, and, if so, in whose favor. The plaintiff says she cannot live with the defendant because of his conduct, she was so miserable and unhappy; we quote from her testimony:

“Then we had had a quarrel over some little thing and I was just all worn out and I said I wanted to die. So there was two different times that I took an overdose of headache powder; one time I nearly died when I took it; he worked over me I guess for a long time; —he said he did — because when I came to, when he got me to, it had been such a shock to him that he fainted. I took this overdose intentionally; I wanted to die. I took it for that purpose, to get out of my troubles. There was another occasion when I .was tempted to commit suicide. I turned on the gas that time. I just felt as though there was nothing to live for. That was in the nighttime. I turned on the gas and I locked my door and I started to get drowsy and I started to dream. It seemed I got to dreaming about the baby and I kind of got myself to realize that I couldn’t leave him and I got up then and opened the window and turned off the gas. It was the thoughts of the baby and my starting to dream about him that brought me back. It was my ill health and the treatment I received from my husband that caused me to attempt suicide. My husband knew about it. When I took the overdose of headache powder, I don’t know how he found it out, but I know when I came to he was working over me and making me drink mustard water. I threatened something of this kind lots of times. Mr. Goodspeed did not take it seriously. I told him I wanted to die and I told him I would kill myself some time. One time in reply to my statement of that nature he said if I wanted to die I better go and die. He made that remark to me. That was before I tried to do it. The turning on of the gas was not the first time. I had taken an overdose of headache medicine twice before that. I don’t remember just when this gas episode was with respect to the time I separated from Mr. Goodspeed, but I know it was during the time when I was so unhappy.
“Q. On those occasions when you were threatening Mr. Goodspeed. that you would put yourself out of the way did you make any threats against John, Jr.?
“A. Yes.
“Q. Just tell us about that?
“A. The first time that I — I said that if I died I would take the baby with me, I wouldn’t leave the baby to him; that I knew what it was, I was brought into the world and thrown on the world without a mother, and I wouldn’t leave my baby in the world without me.
“Q. But you never did make any attempt to take the child with you?
“A. No.”

The defendant testified he had rather go to jail than live with plaintiff. The thing that troubles us is not, Is a cause for divorce shown? but, Is the other party so free from fault that the divorce should be granted? We will first consider the question, Has plaintiff made a case which entitles her to a decree of divorce? She charges brutality on his part in his physical relations with her. The plaintiff testified in great detail as to this alleged brutality. Defendant in the most unequivocal language denied her statements. If the charges made by the plaintiff are true it is difficult to account for her willingness as testified by her to renew her relations of sexual intercourse with defendant after her separation from him and after the property settlement. She says this occurred upon country roads when automobile riding, at her house, at a leading hotel in Grand Rapids and at two prominent hotels in Chicago. The trial judge had the advantage of seeing the witnesses. We agree with him that the plaintiff has failed to sustain her averments of cruelty.

Has the defendant shown a cause for divorce? He produced a number of witnesses whose testimony if believed showed a degree of moral laxity utterly incompatible with the marriage relation. If any testimony was lacking in this regard it is supplied by the testimony of the plaintiff herself. Her testimony in relation to the kissing of men, to making them presents, to entertaining some of them for days at a time at her house, or in her apartments at Chicago, shows such a disregard for the proprieties and conventionalities observed by respectable people that when taken in connection with her testimony of her relations with the defendant before marriage, and after she separated from him as to establish a cause for divorce.

We come to the question of the custody of the boy. He is now more than 11 years old. He should be given into the custody of the father. The mother undoubtedly loves him and some arrangement must be made allowing her to have him with her at proper times and occasions. If counsel cannot agree upon this detail it will be decided when the decree is settled.

The decree of the court below is reversed and one will be entered here in accordance with this opinion.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    HECK v. BAILEY.
    1. Divorce — Chancery Courts — Jurisdiction.
    The jurisdiction of the circuit courts in chancery in this State in divorce proceedings is entirely statutory.
    2. Same — Judgment—Odinion—Entering Decree.
    In divorce proceedings, announcement by the judge, at the conclusion of the testimony, that defendant wife was entitled to a divorce on her cross-bill may be disregarded where, pending property settlement, no decree was entered until after plaintiff’s death, since courts do not speak through their opinions, but through their judgments and decrees.
    3. Same — Aiimony—Judgment—Death oe Party.
    Where plaintiff husband died pending divorce proceedings, no decree for alimony could thereafter be entered, and defendant was entitled as widow to her interest in the husband’s estate.
    Case-made from Ingham; Collingwood, J.
    Submitted October 11, 1918.
    (Docket No. 41.)
    Decided December 27, 1918.
    Bill by John J. Bailey against Dorothy M. Bailey for a divorce. Defendant filed a cross-bill for a divorce and alimony. Between the time of the hearing and the date of decree, plaintiff died, and George R. Heck, special administrator, was allowed to intervene in behalf of plaintiff’s estate. From a decree awarding alimony, plaintiff administrator appeals.
    Reversed.

      Louis E. Howlett and George R. Heck, for appellant.

      Warner & Raudabaugh, for appellee.
   Brooke, J.

Plaintiff, special administrator of the estate of John J. Bailey, deceased, was by order of the court permitted to intervene in and on behalf of all persons interested in said estate for the purpose of reviewing in this court the decree rendered in the court below. It appears that plaintiff’s decedent, John J. Bailey, on July 8, 1917, filed a bill for divorce in the circuit court for the county of Ingham against his wife, Dorothy M. Bailey, defendant. On the 9th day of July defendant filed an answer and cross-bill. In her cross-bill she charged plaintiff with extreme cruelty and nonsupport and prayed for a decree of divorce and for alimony. This cross-bill was answered by John J. Bailey and the case came on to be heard on the 10th day of October, 1917. Two days were consumed in the hearing and on the 12th of October, 1917, the learned circuit judge announced orally that he was convinced: “Plaintiff’s bill of divorce should not be granted.” He further announced that:

“Dorothy M. Bailey is entitled to a divorce on the grounds as is shown by the proofs in this case, of extreme cruelty, of norisupport and desertion. * * *
“The older children have shown a splendid loyalty to their mother, and the decree of divorce will be signed. The only question that remains is as to the property. * * *
“I will listen to counsel for a few minutes in regard to what they consider a fair distribution of this property. I want to be fair to Mr. Bailey and to Mrs. Bailey. Perhaps you have thought more about the subject than I have, and perhaps you are better able to make a decision than I am, and I will listen to you.”

There the matter rested from October 12, 1917, to February 9, 1918, when, on application of counsel for defendant, a decree was entered in which is recited the oral opinion of the judge as announced on October 12, 1917; the facts found by the court under the proofs offered; a recitation of the property owned by John J. Bailey and an award of the-major portion thereof to the defendant. In the decree after the recitations appears the following:

“Now, it is hereby ordered, adjudged and decreed that in lieu of payment of alimony by plaintiff to said defendant, that there be set off to her in her own right in fee simple the following described real estate, to wit:”

Then follows a description of the property and a further order for costs. The decree is silent as to any divorce between the parties and is not filed or entered nunc pro tunc as of the 12th of October, 1917, but was apparently filed and entered as of the day it bears date, February 9, 1918. In the meantime and on the 26th day of October, 1917, John J. Bailey, plaintiff in the divorce case, died, leaving a last will and testament which was subsequently duly admitted to probate in the probate court for the county of Livingston and an appeal from such allowance was perfected to the circuit court.

It is elementary that the jurisdiction of the circuit courts in chancery in this State in divorce proceedings is entirely statutory. Maslen v. Anderson, 163 Mich. 477, and cases cited. In Judson v. Judson, 171 Mich. 185, this court said:

“In the absence of appropriate legislation, alimony cannot be allowed, independent of divorce proceedings and existence of the marriage relation, in courts of equity,” citing cases.

The statute, 3 Comp. Laws 1915, § 11436, provides:

“When any decree of divorce is hereafter granted in any of the courts of this State, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband and such provisions shall be in full satisfaction of all claims that the wife may have in any property that the husband owns or may hereafter own or in which he may have any interest.”

It is to be noted that the decree under consideration here is silent as to a divorce between the parties and it must of necessity have been so since the marriage relations existing between the parties had theretofore been ended by the death of John J. Bailey, the husband. Courts do not speak through their opinions but through their judgments and decrees (15 R. C. L. p. 570, § 31), therefore the announcement of the learned circuit judge at the conclusion of the testimony may be disregarded. In the case of Wilson v. Wilson, 73 Mich. 620, a decree of divorce was granted after the death of complainant (but by order of the court relating to a period prior to his death), in which alimony was allowed to defendant. Mr. Justice Campbell there said:

“The bill and answer below were simple divorce proceedings, aimed at no relief not dependent on divorce. In such a case there can be no decree after death has separated the parties. The doctrine of relation does not apply in such a case. There must be living parties, or there can be no relationship to be divorced. Zoellner v. Zoellner, 46 Mich. 511 (9 N. W. 831). It follows that, as the parties were still husband and wife when the husband died, she has all the rights and conditions of any other widow. It is fallacious to claim that a decree apparently rendered during complainant’s life, and therefore apparently valid, cannot be appealed from. An appeal lies from every decree in chancery which purports to be final, and its illegality is a conclusive reason why it should be reversed, as this decree must be.”

The law as laid down in this case has so far as we are advised never been questioned in this State, nor does there appear to be any good reason why it should be. The defendant, Dorothy M. Bailey, was on the day the decree was entered the widow of John J. Bailey and' as such widow was entitled to her interest in her husband’s estate.

The decree is reversed, with costs to appellant.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    PEOPLE v. BALLARD.
    1. Rape — Assault—Intent—Question fob Juey.
    In a prosecution for assault with intent to rape, the question of intent was one for.the jury, in the absence of any explanation of the assault.
    2. Criminal Law — Evidence—Compelling Defendant to Testify —Statutes.
    The admission in evidence of a monthly report of paroled prisoner, signed by defendant, and found at the place of the assault within 30 minutes of the commission of the crime, is not open to the objection that defendant was compelled to testify in violation of section 12552, 3 Comp. Laws 1915.
    3. Same — Proof of Another Offense — Res Gestae.
    Where such report sets out no crime for which defendant had been convicted, its ¿dmission did not constitute proof of the commission of another and distinct crime, but even if it had it was admissible as part of the res gestee.

    See notes in 19 L. R. A. 744; 62 L. R. A. 228; 48 L. R. A. (N. S.) 236.
    Error to recorder’s’court of Detroit; Connolly, J.
    Submitted October 17, 1918.
    (Docket No. 26.)
    Decided December 27, 1918.
    Edward Ballard was convicted of an assault with intent to commit rape and sentenced to imprisonment for not less than five nor more than ten years in the State reformatory at Ionia.
    Affirmed.

      Silas B. Spier, for appellant.

      Alex. J. Groesbeck, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Donald Van-Zile, Assistant Prosecuting Attorney, for the people.
   Brooke, J.

At about 8 o’clock on the evening of August 19, 1917, the complaining witness, a little girl ten years of age, was assaulted on Ashland avenue in the city of Detroit. The assault was perpetrated in front of a vacant lot upon which weeds three or four feet high were growing. Her assailant dragged her into the weeds, threw her down and placed a rag or handkerchief in her mouth. The child fought her assailant and after a short time he left her, after which, the gag being removed, she made an outcry. If the intent of her assailant was rape he left without accomplishment. The police were at once notified and arrived at the scene of the assault at about 8:80 p. m. One of the officers making a careful investigation of the premises discovered among the weeds about ten feet in, the child’s bonnet, pocketbook, and hair-ribbon, also an envelope, closed, addressed, and stamped, but never having been mailed. An examination of the contents of the envelope disclosed the fact that it contained a:

“Monthly report of paroled prisoner to warden,” signed with the name, Edward Ballard. Following the clue thus obtained the police arrested the defendant near the city of Monroe where he was engaged in assisting to build a bridge for the Detroit United Railway,

On the trial the child, complaining witness, not sworn, was placed upon the stand and gave a very intelligent account of the assault, but was quite unable to identify the defendant as her assailant. Thereupon the police officer who was first upon the scene and who had made an examination of the premises where the assault occurred, was sworn and produced the envelope and inclosure above described. These were offered in evidence, and over objection of defendant were received. The two officers who effected the arrest of defendant were next sworn and both testified that defendant admitted that he had assaulted the little girl, but was unable to explain his. reason for the act. Thereupon defendant’s counsel made a motion for a directed verdict upon the ground that the people had failed to show any intent on the part of defendant to commit rape. The court overruled the motion, holding that the only way to determine the intent was by a consideration of the acts proven. Defendant was then placed upon the stand by his counsel and admitted the fact that the letter alleged to have been found at the scene of the assault was in his handwriting and that the signature thereto was his own. He, however, denied that he had assaulted the child or that at the time or after his arrest he had admitted to the officers .his guilt. After the charge a verdict of guilty was returned and defendant was sentenced to Ionia prison for from five to ten years with a recommendation of ten years, which sentence he is now serving.

No exception was taken to the charge of the court and defendant by his counsel argues only two assignments .of error.

“First. The court erred in refusing to direct a verdict of acquittal in favor of defendant, at the conclusion of the people’s case, upon request of counsel for defendant.
“Second. That the court erred in admitting Exhibit A to be read in evidence, and in allowing the contents on the envelope, marked Exhibit A, to be read to the jury, and in admitting the contents in evidence, marked Exhibit B, over objection of counsel for defendant.”

Under the first assignment it is argued on behalf of defendant that though he threw the girl down and put a rag in her mouth he did not assault her person otherwise or attempt to do so; that no one discovered her assaulter in the act; that he was not frightened away and therefore that he did not intend to commit rape upon her. It is further urged that as he did none of the acts necessary to accomplish rape the proof is strong that he had no such intent.

We are unable to agree with this contention. Unexplained upon any reasonable hypothesis we think the facts proven were sufficient to warrant the jury in a conclusion that whoever committed the assault his original purpose was rape. The question of intent was clearly one for the jury and was submitted to them under instructions carefully guarding defendant’s rights.

Touching the second assignment we are of opinion that the receipt in evidence of the envelope and contents was proper. The papers were discovered within 30 minutes of the commission of the crime at the very point where it was committed. On behalf of the defendant it is urged that the admission of said exhibit was, in effect, a breach of the statute, 3 Comp. Laws 1915, § 12552, which provides in part:

“Provided, however, That a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

In this behalf it is urged that the admission of the exhibits in question compelled defendant to testify himself and that another distinct crime was proven against him by his admissions in this report. While the report discloses the fact that the defendant was a paroled prisoner, it sets out no crime for the commission of which he had theretofore been convicted. We do not think that the admission of the report constituted proof of. the commission of another and distinct crime, but even if it had constituted such proof it was clearly admissible as a part of the res gestae.

Judgment is affirmed.

Bird, Moore, Steere, Fellows, and Stone, JJ., concurred with Brooke, J.

Ostrander, C. J., and Kuhn, J., concurred in the result.


text:
    CLARK v. HOLMAN.
    1. Frauds, Statute or — Sale or Land — Memorandum—Signature oe Seller.
    In an action for the contract price of lots sold at auction, memorandum signed by the buyer but not signed by the seller nor by any one duly authorized by him in writing to sign it, as required by section 11977, 3 Comp. Laws 1915, held, insufficient to support the action.
    2. Names — Assumed Names — Contracts—Validity—Statutes.
    Where plaintiff,- doing business under an assumed name, had neglected to file in the office of the county clerk a certificate setting forth the name under which his business was conducted, and the true and real full name or names of the owner, as required by Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), he could not enforce a contract for the sale of lots.
    Error to Lapeer; Williams, J.
    Submitted October 16, 1918.
    (Docket No. 68.)
    Decided December 27, 1918.

      Assumpsit by Daniel C. Clark against George Holman on a contract for the sale of certain lots. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Raymond A. Lotting, for appellant.

      B. F. Reed, for appellee.
   Brooke, J.

The plaintiff, doing business under the name of the Louisville Real Estate & Development Co., was in the month of August, 1914, the owner of a tract of land near the city of Lapeer. He subdivided said tract into lots, and on the 12th day of August, 1914, undertook to dispose of the same at auction. A considerable number of people (among them defendant) attended said sale. The auctioneer offered lot 1 of block 3 for sale and defendant was the highest bidder thereon at the sum of $225. Plaintiff immediately talked with defendant and it was then agreed between them that defendant should take lots 1, 2, and 3 in said block at the same figure. The terms of the sale provided that one-third of the purchase price of said lots should be paid in cash, one-third in six months thereafter, and one-third in twelve months thereafter. The following memorandum was signed by defendant.

“This is to certify that I have this day bought through The Louisville Real Estate & Development Co. Lot No. 1-2-3 in Block 3 according to the official plan of............................................. for which I agree to pay $225.00 on the following terms: ......................cash on day of sale, balance......................................
“Date Aug. 12, 1914.
“Signature, Geo. Holman.
“Witness: ................................”

Thereafter plaintiff tendered to defendant a deed of the lots in question and demanded payment of one-third of the purchase money and the execution of notes for the balance secured by a mortgage upon the real estate as collateral. Performance on behalf of the defendant was refused and this suit was brought to recover the sum of $675, the amount of the contract price. The plea-was the general issue. Upon the trial, after it had appeared through the examination of plaintiff that he was doing business under an assumed name, the defendant was permitted by leave of the court to file an amended plea setting up the fact that plaintiff had not at any time filed in the office of the county clerk of said county of Lapeer a certificate setting forth the name under which his business was conducted and the true and real full name or names of the person or persons owning, conducting or transacting the same as required by Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.). At the conclusion of plaintiff’s case a motion for a direction in favor of defendant was made and granted.

Three assignments of error are argued on behalf of appellant as follows:

“1. The court erred in directing a verdict in favor of the defendant and refusing to submit the case to the jury for their decision and opinion.
“2. The court erred in charging the jury as follows:
‘“So, that, gentlemen, so far as this contract which it is claimed Mr. Holman made to purchase those three lots, I hold that under the statute it is not evidenced in such a way that the plaintiff would acquire any rights against Mr. Holman on account of having entered into that agreement.’
“3. The court erred in charging the jury or holding as a matter of law:
“ ‘That the sale made by the investment company to Mr. Holman would not put Mr. Clark in a position that he could recover in this action against Mr. Holman for anything growing out of that contract. So that on both branches of the case, gentlemen, I shall hold against the contention of the plaintiff, and direct you to direct a verdict of no cause of action in favor of the defendant.’ ”

The statute of frauds touching the question as it stood when the contract was entered into is as follows:

“Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing.” 3 Comp. Laws 1915, § 11977.

By an amendment (Act No. 83, Pub. Acts 1917), the following proviso was added:

“Provided, That whenever any lands or interest in lands shall be sold at public auction and the auctioneer or the clerk of the auction at the time of the sale enters in a sale book a memorandum specifying the description and price of the land sold and the name of the purchaser, such memorandum, together with the auction bills, catalog or written or printed notice of sale containing the name of the person on whose account the sale is made and the terms of sale, shall be deemed a memorandum of the contract of sale within the meaning of this section.”

We think it clear that the learned circuit judge was right in holding that the memorandum signed by the defendant was not, signed by the plaintiff nor by any one duly authorized by him in writing to sign it and therefore that it was insufficient to support plaintiff’s action. The amendment of 1917 has no bearing upon the question involved.

The direction of a verdict upon the second ground was likewise warranted under the ruling of this court in Cashin v. Pliter, 168 Mich. 386.

Judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


author: Steere, J.

text:
    GOODMAN v. FANGERT.
    1. Vendor and Purchaser — Notice—Ejectment.
    Open, exclusive possession of an D-shaped wing of a garage extending upon premises purchased by plaintiffs was notice of the occupants’ rights, whatever they might be or from whatever source derived.
    2. Same — Lease—Question for Jury.
    Conflicting testimony as to plaintiffs’ notice of the existence' of a lease under which the occupants of the garage claimed, held, to present an issue of fact for the jury.
    3. Ejectment — Prima Facie Case — Burden of Proof.
    In ejectment proceedings, where plaintiffs made a prima facie case by proof of record title in fee simple, by warranty deed, the burden of proof rested upon defendants to show by what right they were in possession.
    4. Same.
    The burden of proof rested upon defendants to establish their rights under a lease and assignment introduced by them, and conflicting testimony as to plaintiffs’ knowledge and consent to the assignment raised an issue of fact for the jury.
    5. Appeal and Error — Issues—Review.
    Although the point that a lease was forfeited because assigned without plaintiffs’ consent was first raised in this court, where its validity was challenged by plaintiffs during the trial, it was before the court to construe.
    6. Same — Assignments of Error on Charge — Directed Verdict.
    Under section 14576, 3 Comp. Laws 1915, error may be assigned on the charge without bringing the matter to the attention of the trial judge; direction of a verdict being a charge within the meaning.of the statute..
    7. Trial — Directed Verdict.

      Held, a directed verdict not authorized by the record.
    Error to Wayne; Webster, J.
    Submitted October 24, 1918.
    (Docket No. 69.)
    Decided December 27, 1918.

      Ejectment by Hyman Goodman and another against Herman Fangert and others. Judgment for defendants on a directed verdict. Plaintiffs bring error.
    Reversed.

      Albert McClatchey, for appellants.

      Butzel & Butzel and John A. Milotte, for appellee Simons.

      William J. Lehmann, for appellees Fangert and Kuntz.
   Steere, J.

Plaintiffs, who are husband and wife, brought this action in ejectment to recover from defendants possession of a piece of land 20x30 feet in size, covered by what they term a "little garage.” It is a small portion of the rear end of a property which they purchased on November 12, 1914, from Moses Remer and wife, described as lot 9 and the easterly 27% feet of lot 10, Meier’s subdivision of that part of outlot 37, private claim 182, between Ludden street and Gratiot avenue, Detroit, Michigan. Their purchase constitutes a piece of land 105.75 feet fronting on Mack avenue by 108.4 feet deep. The front-is occupied by a brick building consisting of two stores below and four flats above.

Defendant Cora B. Simons is owner of the property on Mack avenue adjoining plaintiffs’, upon which is located a garage occupied by defendants Fangert and Kuntz who are her tenants. This garage was built in 1913 by Albert Rasch, then owner of both her description and plaintiffs’. A one story wing, or L of this garage, 20x30 feet in size and 14 to 16 feet high, built along the alley, extended upon what is now plaintiffs’ property. .The garage was built of concrete building blocks. This L part was built at the same time as the rest of the building, of the same material and as a part of it, with no outside doors. The only entrance to it was through the main garage in connection with which it was used as a machine and repair room, having in it a lathe, forge and workbench. Such was the use, the condition and-appearance of the garage when the Goodmans purchased their property from Remer who is admitted to have then had a good, merchantable title to the description he sold. Defendants, or some of them, were then in possession of the 20x30 feet in dispute, using it as stated, by claim of right under an unrecorded 99-year lease given by Remer to Rasch from whom he had purchased the land, and assigned by Rasch to Mrs. Simons and her husband, to whose rights she succeeded on his death prior to this suit, which was later recorded and of which they gave special notice as a defense under their plea of the general issue.

The testimony indicates that the parties had before them at the time of the trial a plat of the premises and perhaps certain mentioned contracts or other instruments relating to the property which are omitted from the record, leaving somewhat uncertain the time and details of Rasch’s sales of this property. He testified that he “was buying on land contract,” and it is indicated he at first sold in the same way. The conveyances to Remer and Simons of their respective purchases are testified to but not set out at length in the record. It is apparently conceded, however, that ultimately through Rasch’s rights and efforts they each received deeds conveying good titles. The record does contain as an exhibit the 99-year lease from Remer and wife to Rasch of the 20x30 feet in question for an annual rental of $1 dated, and given as Rasch testified, on July 13, 1914, the same day Remer made his final payment and received a deed of his purchase from the holder of the fee. This lease was acknowledged by Remer and wife on November 30, 1914, and on the same day assigned by Rasch to Edward S. and Cora B. Simons, husband and wife.

It is stated in defendants’ brief that Mrs. Simons acquired the garage property during the early summer of 1914 and has been in possession ever since. This is strenuously denied and it is asserted in plaintiffs’ brief that the evidence is conclusive to the contrary, for her deed is dated November 30, 1914, and there never was any claim that she had an interest in the property before that date. Neither of these conflicting claims find direct support in the record. It does not disclose the date of her deed, or of her contract of purchase, or make plain her right of possession of the garage property before November 30, 1914. As to that Rasch, whose tenants were in possession of the garage from soon after it was built until he sold it, testified, apparently in reference to this disputed 20x30 feet, that he was in possession when the 99-year lease was given and when he assigned whatever rights he had in the premises on November 30, 1914, and says, “Mr. Fangert was in possession of the garage as tenant under me,” while the record contains an identified receipt from Remer to E. C. Simons dated July 16, 1914, for one dollar “in full for rental on Mack avenue, as per lease, for one year.” Herman Fangert testified that he was occupying the garage under a lease from Mrs. Simons, and that he first went into possession on May 14, 1914, after which time he occupied the garage right along, open and doing business every day up to the time he was testifying, and that he was using every day, as a part of it, the wing or L in question.

Just when he changed landlords is not very clear, but we are not impressed with the urged importance of that question. It is admitted by counsel that both parties rely on Remer’s title as a common source, one by deed and the other by lease, while Remer’s title came from or through Rasch who built the garage and was in possession by tenants as owner or lessee until he sold and surrendered his right to Mrs. Simons and her husband, by whose death she acquired his rights before this action was brought. Open, exclusive possession of the property at the time plaintiffs bought was notice of the occupants’ rights whatever they might be or from whatever source derived. When plaintiffs bought the property, in November, 1914, and when they brought this action in November, 1916, the tenants in continuous and direct physical possession of the 20x30 feet of land, and their lessors, based their claim of right upon this 99-year lease of which it is claimed possession gave constructive notice.

Upon the trial Goodman’s contention and testimony was directed to the proposition that he was an innocent purchaser in good faith without notice, and that he first learned of defendants’ adverse claim and possession when an abstract of title obtained by a party to whom he had negotiated a sale of the property disclosed a record of this lease. He admitted he had noticed the little garage was on his lot when he bought but thought “a garage belonged to the house.” He also said he thought “they used that for the coal, or anything else” and when asked if there was any door leading from his place into it replied, “I never looked at it,” and positively denied Remer’s testimony that he pointed it out to Goodman when he purchased, explained that the owner had a 99-year lease of the ground on which it stood and gave to the lawyer who acted for both of them in drawing the papers his lease and contract which were all the papers he had from Rasch. The question of direct notice of the lease, upon which considerable testimony was introduced, was clearly an issue of fact for the jury, but it was shown without dispute that the building was there when plaintiffs nurchased, that Goodman then saw it, that it was built at the same time, as a part of the large garage with a continuous wall of the same material, had no entrance to it from plaintiffs’ property and was in possession of occupants of the garage and used by them as a part of the building for the garage business conducted there. Plaintiff admitted the conditions were the same at the time of the trial as they were when he purchased, and the premises were viewed by the court and jury. On submission of the case the court directed a verdict for defendants, saying in part:

“This particular building, in the first place, is such a monstrosity to look at, is so out of the ordinary that it is bound to put one on inquiry by the mere seeing of it. * * * If this man had taken any precaution whatever, made any kind of investigation, he would have discovered that the only entrance was around through the big garage. He would have discovered that the little building on his property was practically a part of the garage, and that it was being used in the garage business * * * but having shut his eyes to all that, and purchased, I think he is bound by it and you will therefore render a verdict that the defendants are not withholding unlawfully the possession of these premises from the plaintiffs.”

We find no occasion to disagree with the conclusion of the trial court that as a proposition of law, under Goodman’s admissions and the undisputed evidence, he had constructive notice of whatever rights defendants had; but apparently the extent and tenacity with which Goodman and the party to whom he was selling asserted ignorance of the nature of that “monstrosity” on his lot tended to obscure the perspective of other questions involved, for it did not follow from the fact of constructive notice sufficient to put plaintiffs on inquiry as to defendants’ rights that the latter were entitled to a directed verdict in their favor. The more serious question involved was, What were those rights under the proof they offered ? Plaintiffs made a prima facie case by proof of record title to the property in fee simple by warranty deed, and the burden of proof then rested upon defendants to show by what right they were in possession. They relied upon an assigned 99-year lease from plaintiff’s grantor which they introduced in evidence with the assignment attached, showing on the face of those instruments that the lease was acknowledged, assigned and recorded after plaintiffs purchased, and that the lease provided in part as follows:

—“if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part, certain attorney, heirs, representatives and assigns, to re-enter into, repossess the said premises, and the said party of the second part, and each and every other occupant, to remove and put out. * * *
“Said party of the second part further covenants that he will not assign nor transfer this lease, or sublet said premises, or any part thereof, without the written assent of said party of the first part.”

The questions which such provisions raise have several times been discussed and passed upon by this court. Randall v. Chubb, 46 Mich. 311; Lewis v. Sheldon, 103 Mich. 102; Marvin v. Hartz, 130 Mich. 26; Wray-Austin Mach. Co. v. Flower, 140 Mich. 452; White v. Huber Drug Co., 190 Mich. 212.

Defendants sought to show knowledge and consent in writing by proof of a receipt to Mrs. Simons, which is not set out in the record, for one dollar in payment of a year’s rent under the lease, signed by Goodman’s 16-year-old daughter under his direction as claimed by defendants but denied and repudiated by him, which at most would raise an issue of fact for the jury.

Defendants’ answer to the contention that the lease was forfeited and a nullity because assigned without the written consent of plaintiff is that this question was not called to the attention of the trial court, but that point was first made in counsel’s brief in this court and therefore should not be considered under the rulings in Gleason v. Stone, 200 Mich. 187, and Ward v. Carey, 200 Mich. 217.

It is true that the testimony aside from proving documentary evidence was mainly devoted to the questions of constructive notice and the nature and time of possession by Rasch and defendants, but the sufficiency of defendants’ proofs to establish their right to possession under the lease was denied by plaintiffs’ counsel and its validity for that purpose repeatedly challenged during the progress of the trial, not very helpfully, it may be conceded so far as shown, to the court in construing the written lease and assignment which it was broadly declared more than once were “a scheme put up by Remer to defraud these people out of that piece of land;” but the burden of proof as to their claimed rights under this lease and assignment upon which they relied rested upon defendants who introduced them in evidence as the foundation of their claim, and they were before the court to construe under that claim.

The record does not show that either side proffered any requests or asked for a directed verdict. After they had introduced their testimony and rested both parties without comment turned the case over to the court to deal with, so far as disclosed, and following a few remarks to the jury upon the subject of constructive notice the court directed a verdict for defendants. Plaintiffs’ assignments of error are against the charge of the court in directing, a verdict for defendants, not the rulings of the court during the progress of the trial. Under 3 Comp. Laws 1915, § 14576, error may be assigned on the charge without bringing the matter to the attention of the trial judge. Totten v. Totten, 172 Mich. 565. The direction of a verdiet is a charge within the meaning of the statute. Parsille v. Brown, 188 Mich. 485.

A directed verdict for defendants was not authorized by this record. The judgment thereon is therefore reversed and a new trial granted, with costs of this court to appellants.

Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit.


text:
    OTTO v. VILLAGE OF HIGHLAND PARK.
    1. Action — 'Causes oe Action.
    “Actions” and “causes of action,” though often used synonymously, do not strictly and technically have the same meaning.
    2. Same — Joinder oe Parties — Several Liability — Judicature Act.
    As> applicable to this case, where defendant village moved to dismiss, on the ground that it was improperly joined, chapter 8, § 1, of the judicature act (section 12309, 3 Comp. Laws 1915), deals with “causes of action” which are generally recognized and often defined as the fact or combination of facts giving rise to or entitling a party to sustain an action.
    S. Same — Pleading—Convenience.
    There being three defendants, the alleged liability “must be asserted against all," for all are “material” if properly made defendants; there being no claim in the declaration that the causes were united “to promote the convenient administration of justice.”
    4. Same — Law and Equity — Distinctions.
    The distinctions between actions at law and suits in chancery have not been abolished in this State.

      5. Parties^-Joinder of Parties — Several Liability — Judicature Act — Intent.
    Intent of judicature act, held, not to allow a joinder of parties severally liable and a joinder of different causes of action, eaeb against a different defendant.
    6. Dismissal and Nonsuit — Certiorari—Review.
    On certiorari to review tbe action of tbe court below in overruling defendant’s motion to dismiss tbe action as to it, where defendant timely questioned plaintiffs’ declaration in manner pointed out by tbe judicature act, chapter 14, § 4, tbe inquiry is confined to tbe charged infirmities appearing on tbe face of tbe declaration as a pleading.
    Certiorari to Wayne; Houghton, J., presiding.
    Submitted October 17, 1918.
    (Docket No. 81.)
    Decided December 27, 1918.
    Action in case and assumpsit by Peter Otto and another against the village of Highland Park and others for damages resulting from insufficient sewerage. From an order denying a motion to dismiss, defendant village brings certiorari.
    Reversed.

      Claude H. Stevens, for appellant.
   Steere, J.

Plaintiffs commenced an action on October 18, 1916, in the circuit court of Wayne county against the Baldwin Park Company and the Hannan Realty Company to recover damages resulting from insufficient sewerage for certain property they had purchased in the Baldwin Park subdivision from defendants. Both defendants appeared and pleaded the general issue. The plaintiffs later moved the court for permission to make the village of Highland Park a party defendant and to amend their declaration accordingly. On October. 20, 1917, the permission asked for was granted, and on October 24, they filed their first amended declaration. Two days thereafter the original defendants pleaded to the amended declaration and on November 9, 1917, the village of Highland Park pleaded the general issue with notice. Subsequently plaintiffs procured an order from the court granting them leave to discontinue as to the village of Highland Park. Later plaintiffs again obtained an order permitting them to amend their declaration to allege a cause of action against all three defendants, including the village of Highland Park.

Plaintiffs’ second amended declaration, which is the one under consideration here, alleges that on November 15, 1914, they purchased from the defendant Baldwin Park Company through the defendant Hannan Realty Company, its selling agent, certain property in the Baldwin Park subdivision; that at the time of entering into a contract for the purchase of said property both the Hannan Realty Company and Baldwin Park Company falsely and fraudulently represented to plaintiffs by signs on the premises, advertisements and direct statements that the property was well sewered with adequate outlets, which plaintiffs believed; that relying upon such representations they bought the land and subsequently built a store and flat thereon, but on December 30, 1915, and on other occasions the basement of said store and flat was flooded with water, sewage and waste because of inadequate outlet and sewer facilities for the property, seriously damaging the contents of their basement; that by reason of such lack of sewer facilities and outlet plaintiffs were put to great expense in constructing and maintaining a cess-pool for the disposal of sewage from their said store and flat, and for the damages sustained in that connection a judgment of $3,000 is asked.

This second amended declaration contains two counts, the first in assumpsit and the second in trespass on the case, directed against the Baldwin Park Company and Hannan Realty Company, its selling agent, respectively charging them with liability for breach of contract and because they fraudulently induced plaintiffs to purchase the property by false representations as to sewerage facilities for the same.

A third count asserts a cause of action against the village of Highland Park by reason of violating an alleged permit formerly granted to Stephen Baldwin, then owner of the farm now embraced in Baldwin Park subdivision, to make sewer connection with the Woodward avenue sewer which runs through the village constituting a part of its sewage system, and charges that

— “well knowing its duty in this regard, the defendant village of Highland Park did negligently and carelessly fail and neglect to perform the same, and did disturb, break, block, stop and interfere with the said sewers in the Baldwin Park subdivision, and with the connection or connections, outlet or outlets, with and into said Woodward avenue sewer.”

From the transcript of record in this case returned by the circuit judge it appears that the village of Highland Park pleaded to plaintiffs’ first amended declaration and gave notice of special defense as follows :

“That no permit has ever been given by the village of Highland Park to drain into or through the sewers of the village of Highland Park any sewage from the property now known as Baldwin Park subdivision except the sewage from the farm residence which formerly was located near the southwest corner of the Stephen Baldwin farm.
“That whatever permit was given to Stephen Baldwin to connect any property located outside of the limits of the village of Highland Park was illegal and void, it being beyond the scope of the powers of the village of Highland Park.”

To this second amended declaration counsel for the village made a motion in the nature of a demurrer to dismiss the same, and also plaintiffs’ action, as to the village, for the following reasons:

“(1) Because the liability set forth in the several counts in plaintiffs’ declaration is not asserted against all of the defendants.
“(2) Because the declaration sets forth several distinct causes of action against different defendants.
“(3) Because the cause of action alleged in the third count is improperly joined-with the cause of action alleged in each the first and second counts, in that liability is not claimed against the same defendants.”

On March 13, 1918, said motion was heard and after argument an order was entered denying the same. The defendant village of Highland Park then removed the proceeding to this court by certiorari asking reversal of said order.

It was plaintiffs’ claim and the conclusion of the trial court that the questioned pleading was within the purview of section 1, chapter 8, of the judicature act (3 Comp. Laws 1915, § 12309), which is as follows:

“The plaintiff may join in one action at law or in equity, as many causes, of action as he may have against the defendant, but legal and equitable causes of action shall not be joined; but when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant, the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice, or when several suits shall be commenced against joint and several debtors, in-the same court, the plaintiff may, in any stage of the proceedings, consolidate them into one action. If it appear that any such causes of action cannot be conveniently disposed of together, the court may order separate trials, or whenever several suits shall be pending in the same court, by the same plaintiff against the same defendant, for causes of action which may be joined, the court in which the same shall be prosecuted may, in its discretion, order the several suits to be consolidated into one action.”

Had not plaintiffs taken the precaution to label the counts in their declaration it would be difficult to define them, but the first is declared to be “of the plea of assumpsit” and the second “of a plea of trespass.” No charge whatever is made against the village of Highland Park in either and the emphasized grievance in each is that the Baldwin Park Company and its selling agent, the Hannan Realty Company, falsely represented to plaintiffs when they bought the property that ample sewer facilities were provided, when in fact those provided proved “inadequate and insufficient and were not provided with sufficient or adequate outlet or outlets.”

Turning to the third count “of a plea of trespass,” devoted exclusively to the village of Highland Park, plaintiffs state that their property was connected with the sewer system of the Baldwin Park subdivision which was connected with the Woodward avenue sewer running through the village of Highland Park, which connection was “made and maintained” under a permit from the village issued for a consideration to Stephen Baldwin, “through whom plaintiffs derived the right to maintain said connection;” that “the sewage, water, waste, etc., from the said store and flat flowed through the said Baldwin Park sewers into the Woodward avenue sewer, which conveyed it through the village of Highland Park and finally emptied it into the Detroit river;” and the flooding of plaintiffs’ basement is charged to the negligence of the village in failing to perform its duty and to refrain from interfering with the Baldwin Park sewer connections as before quoted.

Accepting plaintiffs’ designation of these counts and passing the question of their inconsistency, it seems evident that the liability charged in the first and second, based on the false and fraudulent statements of the vendor and its agent that the property was adequately sewered, is not asserted against the village of Highland Park; nor the liability charged against Highland Park for neglect of its duty as to the sewer, and for breaking, blocking up and. interfering with it, is not asserted against the Baldwin Park Company or Hannan Realty Company.

Chapter 8 of the judicature act, devoted mainly to section 1 above quoted, is entitled “Joinder and severance of causes of action and the consolidation of actions.” Actions and causes of action, though often used synonymously, do not strictly and technically have the same meaning. To what extent the legislature had in mind the distinction when including the two terms in this title and, if at all, just what definitions were intended may be conceded as somewhat conjectural in view of the difficulties found attending attempts to give general definitions applicable under all conditions (vide “Actions,” Vol. 1 of Corpus Juris). But that portion of the section and chapter applicable here deals with causes of action, which are generally recognized and often defined as the fact or combination of facts giving rise to or entitling a party to sustain an action.

The provisions of section 1 relating to joining actions between one plaintiff and one defendant, and several suits commenced against joint and several debtors have no application to this declaration. We have here three separate defendants and two plaintiffs. “Where there is more than one plaintiff the cause of action must be joint,” which may be passed as meaning the plaintiffs must be legally and jointly interested as actors or plaintiffs in the causes of action joined, and as to these three defendants, the alleged liability “must be asserted against all,” for all are “material” if properly made defendants, “or sufficient grounds must appear for uniting the causes of action to promote the convenient administration of justice.”

No mention of convenience is made in the declaration nor does it appear that convenient administration or the ends of justice will be promoted by mingling the issues of these two distinct causes of action for separate torts, charged to have been committed by different tort-feasors, without co-operation in the respective trespasses alleged, dependent on different lines of proof and demanding separate consideration, with separate verdicts and judgments as to each. Inconvenience, confusion of issues and prejudice from testimony admissible as to one and inadmissible as to the other when trying together distinct common-law causes of action for damages against different defendants, are as inferable from such innovation as that it would facilitate or convenience the administration of justice. The distinction between actions at law and suits in chancery have not been abolished in this State, and these tort actions are triable by jury. Were the issues triable before the court without a jury, as in chancery, the convenience and propriety of their consolidation might be more apparent.

While its provisions as to joinder of actions and parties are broad in terms and go far beyond the former settled practice, it is inferable from the general tenor of the judicature act considered in its entirety and, we think, from the very language under consideration relative to parties defendant, that it was not the legislative intent to ignore the fundamental principles of procedure to the extent proposed in this declaration where, as plaintiffs sound their counts, it is sought to join in a single action and have determined the liability of alleged independent tort-feasors for different and distinct torts charged to each, without concert of action or community of responsibility, inevitably amounting to both a joinder df parties severally liable and a joinder of different causes of action, each against a different defendant.

Under the English judicature act, order 16, rule 4, broadly provides :

“All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative.”

In Sadler v. Great Western Ry. Co., L. R. 2 Q. B. Div. (1895) 688, where two railway companies operating separate and independent roads were charged with having, in the use of their premises adjoining plaintiff’s shop, “by their respective combined acts” interfered with access to plaintiff’s place of business, and the court held the defendants were improperly joined in an action at law for damages, Smith, L. J. saying in part:

—“these two torts, if they are torts, are independent torts by the different companies, although, as I have already stated, the acts of each company can be taken into account in considering the acts of one company and deciding whether they amount to a nuisance or not. The acts of the other company must be taken into account, because it may be that the one company ought not to' be doing what it was when the other company was doing what it did. But that does not make these two causes of action a joint cause of action, or give any right to join one company with the other in one action.” Affirmed 21 App. Cas. 450 (1896).

Although before the passage of our judicature act, this court referring generally to cases permitting joinder of defendants said in Strawbridge v. Stern, 112 Mich. 16, that they are “limited by the rule that such a joint action cannot be maintained against different defendants where separate and distinct tres, passes are relied upon, in which the parties are not jointly concerned.”

To the same effect it is said in 30 Cyc. p. 129, with citation of numerous authorities:

“However wide this liberty of joinder, it does not annul the general principle that when a plaintiff asserts claims against two or more persons in respect of their several liabilities for separate wrongs, he cannot sue these persons as codefendants. The distinction is marked in the difference between an action for an injunction and an action for pecuniary damages when both actions turn upon an injury arising out of the acts of different defendants between whom there has been no common design or concert of action, but whose independent acts have in fact united, as their common result, in an invasion of plaintiff’s rights. When plaintiff seeks an injunction against the continuance of this common result, he may join all the defendants in one action. But when he sues to recover his damages because of his injury from these separate, independent wrongdoers, he cannot join them as defendants in one action.”

The defendant village timely questioned plaintiffs’ declaration in manner pointed out by the judicature act, section 4, chap. 14 (3 Comp. Laws 1915, § 12456), and the inquiry is confined to the charged infirmities appearing on the face of the declaration as a pleading. So considered it discloses a clear misjoinder of parties in an attempt to maintain a joint action against different defendants for distinct and separate torts, not asserted against all.

The demurrer of the village of Highland Park, by motion to dismiss, is well taken and should have been granted as to it.

The order denying the same is accordingly reversed.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.