author: Hooker, J. Ostrander, J.

text:
    MIER v. HADDEN.
    1. Vendor and Purchaser — Option Contract — Validity—Un-OONSOIONABLENESS.
    An option contract for the purchase of land examined, and held, not unconscionable though it gives the purchaser the right to purchase or not at his option, and gives him the choice of remedy by suit for specific performance or action for damages, while limiting the vendor, in case of failure to , purchase, to stipulated damages of one dollar.
    2. Specific Performance — Land Contract — Propriety—Remedy at Law.
    An action at law for the breach of an optional contract to sell land is not an adequate remedy barring the remedy by specific performance, where the option holder, in reliance on the option, has contracted to sell the land to another and will be liable to him for breach of contract in case of inability to perform.
    3. Same — Option Contract.
    Options for the purchase of land, where based on a valid consideration, are valid contracts, and may be specifically enforced.
    4. Vendor and Purchaser — Option Contract — Construction —Refusal After Acceptance.
    A contract giving an option to purchase land on or before a certain date, and providing that the option holder may refuse to purchase, and stipulating the vendor’s damages in such case, does not mean that the purchaser may refuse to purchase after he has accepted the option.
    5. Specific Performance — Mutuality of Remedy.
    The purchaser’s right to specific performance of an option for the purchase of land is not affected by the fact that the contract gives the purchaser a choice of remedy by suit for specific performance or action for damages, while the vendor is limited to an action for damages, stipulated to be one dollar.
    6. Vendor and Purchaser — Contract—Validity—Witnesses.
    Section 9035, 3 Comp. Laws, does not render a contract for the sale of land wholly void when executed without witnesses, in view of the provisions of section 9051.

      7. Specific Performance — Bill—Offer of Performance.
    A bill for specific performance of an option to purchase land sufficiently alleges performance on the part of the purchaser where it shows a written acceptance of the option and demand of abstract as provided by the contract,' and refusal by the vendor to perform, and offers to pay the price, and to bring into court the amount thereof to be paid on delivery of a conveyance.
    8. Vendor and Purchaser — Optional Contract — Renunciation.
    Where a valuable consideration is paid for an option to purchase land the vendor cannot withdraw the offer before expiration of the option period.
    Appeal from Cass; Des Voignes, J.
    Submitted April 16, 1907.
    (Docket No. 120.)
    Decided May 18, 1907.
    Bill by Solomon Mier, Abraham Mier, Isaac Rose, and Leon Rose, copartners as the Sol. Mier Company, against Samuel B. Hadden and Matilda A. Hadden for the specific performance of a land contract. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      M. L. Howell, for complainants.

      John B. Carr, for defendants.
   Hooker, J.

The defendants have appealed from an order overruling a demurrer to a bill for specific performance of a land contract. ' The bill alleges that the complainants are copartners, engaged in the business of buying and selling land, and that their method is to secure options, and then seek purchasers, to whom they contract the land, afterwards completing their own purchase. In June, 1906, they made an option contract with the defendants, who are and were then husband and wife, to purchase at complainants’ option, to be exercised on or before November 1, 1906, at the price of $8,300, the defendants farm. The consideration paid at the time of making this agreement, which was in writing, was $1. A copy was attached to the bill:

“Option contract, between Sol. Mier Co., of Ligonier, Ind., party of the first part, and Samuel B. Hadden and Matilda A. Hadden, his wife, of Ontwa township, Cass county, Mich., party of the second part, to wit.
“In consideration of one dollar ($1.00) paid by party of the first part to party of the second part, the receipt of which is hereby acknowledged and in consideration of the agreements hereinafter set out, said second party hereby sells to said first party for the sum of eighty-three hundred dollars ($8,300.00) to be paid to said second party as follows: Cash upon possession of land (less amount of liens and encumbrances on the real estate) upon execution to said first party of a warranty deed therefor the follow: ing real estate in Cass county, State of Michigan, viz.:
“ Fifty-seven (57) acres off the east side of the northwest quarter (•£•) of section seven (7) south of highway and thirty-three (33) acres off the west side of the northeast quarter (¿) south of highway in section seven (7) all in township eight (8) south of range fifteen (15) west containing ninety (90) acres more or less to be more accurate, described in deed.
“Party of the second part agrees to furnish abstract showing perfect title to said real estate, which title must be made satisfactory to said first party’s attorney, and second party agrees to convey said real estate to party of the first part by deed of general warranty. First party may demand the execution of said deed at any time within November 1, 1906, from the date hereof; and if second party fails or refuses to execute the same or fails or refuses to perform the stipulations hereof on his part, then first party may by suit enforce the specific performance by second party of this contract, and the execution of a deed for said real estate, or may, at his option, by suit, recover from said second party, with interest and attorney’s fees and without relief, whatever damage he may have suffered by reason of any default on the part of said second party.
‘ ‘ First party may refuse to purchase said real estate, and, if he does so, shall forfeit and pay to second party with interest and attorney’s fees and without relief, the sum of one dollar ($1.00) which shall constitute the only liability of first party for such refusal.
“This contract to be void unless the first party offers performance thereof on his part within said period of November 1, 1906.
“Deed to be made and delivered at the office of Sol. Mier Co., at South Bend, Ind.
“It is further agreed that the party of the second part reserve the tenant’s interest the one-half (J) of the wheat sown in the fall of 1906.
“Possession to be given March 1, 1907.
“Executed in duplicate this 21st day of June, 1906. “Sol. Mier Co.,
“By Leon Rose. “Samuel B. Hadden. “Matilda A. Hadden. "Seal.] Seal. ] [Seal.]”

The defendant Samuel B. Hadden still owns the premises, and the price was a fair one. The bill alleges that the complainants relied on the option, and have found a purchaser, and made a contract to convey the premises to him, and will be liable to him in damages if they shall fail to perform their contract. They elected to purchase the land, and so notified the defendants on or about October 1, 1906, when defendants informed them that they would not perform the contract made by them. "We have examined the bill in the record in the light of defendants claim that the contract is unconscionable and are of the opinion that it is not open to that charge. We shall therefore turn our attention to the legal questions raised.

Adequacy of Remedy at Law.

If-it were to be conceded that equity would never enforce specifically a contract for the purchase of land, where damages would afford an adequate remedy, we should, nevertheless, be justified in enforcing this, because of the contract obligations which have grown out of it. The complainants’ refusal or inability to perform such contracts would be likely to subject them to damages for nonperformance, and the danger that the damages recoverable upon this contract might not equal the sum that another jury might award upon that, to say nothing of the inconvenience and expense of two lawsuits.

Want of Mutuality.

(a) Options for the purchase of land, where based on a valid consideration, are valid contracts, and may be specifically enforced. See Gustin v. School District, 94 Mich. 502.

(6) It is claimed that .this contract cannot be specifically enforced, for the reason that the complainants have the right to refuse to purchase after they have accepted the option. We do not so construe the contract. This provision is essential to make the contract optional. -

(c) Another obstacle to specific enforcement is said to be a want of mutuality in the right of enforcement, for the reason that the complainants have choice of action at law or specific enforcement by the express terms of the contract, while the defendants have not, and the latter’s damages are stipulated, while those of the former are not. We see nothing in this that affects the question. It is a part of the provision Which constitutes the option.

Validity of the Contract.

It is said that the contract is void for want of witnesses, under 3 Comp. Laws, § 9035, which provides that:

“(9035) Section 1. The People of the State of Michigan enact, That contracts for the sale of land or any interest therein, shall be executed in the presence of two witnesses, who shall subscribe their names thereto as such, and the vendor named in such contract, and executing the same may acknowledge the execution thereof before any judge, or commissioner of a court of record, or before any notary public or justice of the peace within this State; and the officer taking such acknowledgment shall endorse thereon a certificate of the acknowledgment thereof, and the date of making the same under his hand.”

This is answered by 3 Comp. Laws, § 9051:

“ (9051) Sec. 4. No conveyance of land or instrument intended to operate as such conveyance, made in good faith and upon a valuable consideration, whether heretofore made or hereafter to be made, shall be wholly void by reason of any defect in any statutory requisite in the sealing, signing, attestation, acknowledgment, or certificate of acknowledgment thereof; nor shall any deed or conveyance, heretofore or hereafter to be made, designed and intended to operate as a conveyance to any religious or benevolent society or corporation, be wholly void by reason of any mistake in the name or description of the grantee, nor because of any failure of such society or corporation to comply with any statutory provisions concerning the organization of such society or corporation: Provided, Such society or corporation shall hereafter comply with the provisions of the statute touching the organization or incorporation of such societies; but the same, when not otherwise effectual to the purposes intended, may be allowed to operate as an agreement for a proper and lawful conveyance of the premises in question, and may be enforced specifically by suit in equity in any court of competent jurisdiction, subject to the rights of subsequent purchasers in good faith and for a valuable consideration; and when any such defective instrument has been or shall hereafter be recorded in the office of the register of deeds of the county in which such lands are situate, such record shall hereafter operate as legal notice of all the rights secured by such instrument.”

This section was applied to a contract in the case of Aultman, Miller & Co. v. Pettys, 59 Mich. 486, where it was held that the record of a contract having only one witness was constructive notice of a contract. This necessarily implies that the contract was not void, under section 9035, for otherwise the question of notice would have been unimportant, but Mr. Justice Morse expressly said:

“We think the agreement conveyed such an interest in land that it was entitled to record. It was something more than an executory contract for the sale of the land. It expressly gave the future wife such an interest, at once upon its execution and delivery, that Daniel Pettys could ,not sell or incumber it without being joined in the deed or mortgage by the defendant, Lucina. Pettys, and it was intended to-and did operate as a conveyance to her of a present interest in the premises; such an interest that, without her deed or lease, no possession could be given to any one.”

The contract there under consideration was a conditional contract to convey land. See, also, Chicago Lumbering Co. v. Powell, 120 Mich. 57.

Performance.

It is contended that the complainants have not performed the contract upon their part. They served notice in writing after having given oral notice of intention to take the land, and demanded an' abstract. Defendants had previously refused to perform the contract. The bill offers to pay the price, and to bring into court the amount thereof to be paid on delivery of a conveyance. We think this sufficient allegation of an offer to perform.

Renunciation.

Counsel claim that the defendants’ refusal to perform before the written demand was made was a renunciation of the contract, and effective to determine complainants’ rights to require performance. If this would be so as to a gratuitous option before acceptance of the offer therein contained, it is not so in this case, where a valuable consideration was paid for the contract. See Gustin v. School District, supra.

We think it unnecessary to further discuss the case.

The order is affirmed, with costs.

McAlvay, C. J., and Montgomery and Moore, JJ., concurred. .

Ostrander, J.

(concurring). I concur in affirming the decree. The written instrument in evidence is, in effect, no more than an offer, based upon a valuable consideration, to sell real estate if the offer is accepted on or before a certain date. It does not convey, or vest in the option holder, any interest in the land. Gustin v. School District, 94 Mich. 502. If the offer was properly accepted before it was withdrawn, within the time limited, there was a completed contract which a court of equity may enforce. Wilcox v. Cline, 70 Mich. 517; Herrman v. Babcock, 103 Ind. 461; Willard v. Tayloe, 8 Wall. (U. S.) 557; Johnston v. Trippe, 33 Fed. 530; Bradford v. Foster, 87 Tenn. 4; Weaver v. Burr, 31 W. Va. 736 (3 L. R. A. 94); Coleman v. Applegarth, 68 Md. 21; Linn v. McLean, 80 Ala. 360. See, also, 2 Beach on Contracts, §§ 887-924. The option does not specify the manner of acceptance, or how offer of performance shall be made. In such a case, to satisfy the statute of frauds, the election should be in writing. ■ It is averred in the bill that a written notice that complainants had elected to purchase the land, with a demand for an abstract, was personally given to each of the landowners, previous to which time, however, upon receiving an oral statement that complainants had elected to purchase according to the option the landowners withdrew the offer. The courts are not agreed upon the proposition that an offer to sell, based upon a valuable consideration, may not be withdrawn during the option period. The proposition' has been stated obiter in several opinions, among which are Willard v. Tayloe, Bradford v. Foster, Weaver v. Burr, supra. The point was not involved in Gustin v. School District. It is expressly ruled in Ross v. Parks, 93 Ala. 153 (11 L. R. A. 148), in accordance with the conclusion here reached. While it may seem at first blush a legal paradox that a contract for the sale of land, mutual and enforceable, can be made when at the time it is claimed to have been made one party to it is openly protesting that he will make no such contract, and while reasons may be advanced to support the proposition that the option holder should be in such a case remitted to an action for damages for refusal to hold the offer open for the stipulated time, there is reason and precedent for holding that the offer to sell, if paid for, may not be withdrawn during the stipulated time, being, in law, a continuing offer to sell.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CLINTON v. CLINTON’S ESTATE.
    1. Husband and Wife — Separation — Agreement — Construction.
    By a separation agreement under seal dated in November, 1886, a husband conveyed their home to his wife for life, remainder to himself and children, and agreed to pay a mortgage thereon within two years, and that if, in the "meantime,” she should make, or procure to be made, any payments of principal or interest thereon, she or the person making the payments should be subrogated to the rights of the mortgagee, or have a lien corresponding to the amount so paid, as security, and to assure the final payment of said principal and interest in full “by the party of the first part." Held, that the agreement created a personal obligation on the husband’s part to pay the mortgage, which matured at the expiration of two years without payment.
    3. Limitation of Actions — Contract Under Seal.
    Under section 9734, 3 Comp. Laws, an action on the personal obligation of a husband, created by contract under seal, to pay a mortgage on certain land conveyed to his wife, is barred 10 years from the time the payment was agreed to be made.
    3.. Same — Mortgage—Personal Obligation.
    Action on the personal obligation created by a mortgage on real estate is barred in 10 years. (Section 9734, 3 Comp. Laws.)
    4. Same — Payments Tolling Statute — Payment by Joint Obligee.
    A husband and wife gave a mortgage on their home by which they both expressly agreed to pay the debt, and- afterwards the husband conveyed the premises to the wife for life by a separation agreement, by which he agreed to pay the mortgage within two years, and agreed that if in the "meantime” she should pay it she should be subrogated to the rights of the mortgagee to assure payment by the husband. Held, that an action against the husband accrued at the expiration of the two years without payment, and that the statute of limitations was not tolled by payments subsequently made by the wife.

      5. Husband and Wife — Separation — Agreement — Construction.
    The separation agreement did not create a personal liability to reimburse the wife for her payments on the mortgage.
    Error to Livingston; Smith, J.
    Submitted April 17, 1907.
    (Docket No. 43.)
    Decided May 18, 1907.
    Jane Clinton presented a claim against the estate of George Clinton, deceased, for the amount of a mortgage discharged by claimant. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and defendant brings error.
    Reversed.

      JEJ. A. Stowe, for appellant.

      Shields & Shields, for appellee.
   Hooker, J.

George and Jane Clinton being husband and wife, the latter filed a bill for divorce, in the course of which proceeding they made a written agreement relating to their property rights. He conveyed to her the home for her life, to be held by her for the use and benefit of herself and their children as a home. He reserved a life estate in himself in the event o£ his surviving his wife, with remainder to the children after the termination of the life estates, unless he should survive all, when the fee would revert to him. There was a mortgage upon the premises at the time, and he agreed that he would pay it within two years, and have the premises discharged from it, the amount of the mortgage being $225 and interest, and if, in the “meantime," Jane should make any payments of principal or interest thereon, or procure any other person to do so, she or such other person should be subrogated to the right of the mortgagee, or have a lien corresponding to the amount so paid, as security, and to assure the final payment of said principal and interest in full “by the party of the first part.” The mortgage and note were dated June 21, 1882, and matured in three years, and were therefore due at the time the agreement aforesaid was made, which was November 30, 1886. George Clinton never made any payments upon the mortgage. This mortgage was assigned to William H. Withington. The date of this assignment does not appear, but the record shows that Mrs. Clinton made payments to Withington upon the mortgage as follows: April 17, 1899, $12, November 9, 1899, $12, a number of small payments aggregating $243. Withington’s executors assigned the mortgage to the claimant, Mrs. Clinton, on June 11, 1904. She had not fully paid the mortgage, but it was given to her by Mrs. Withington after her husband’s death. She had lived in their family for some years.

George Clinton is said to have died on October 15, 1904. Thereupon Mrs. Clinton filed this claim against his estate to obtain reimbursement for the amount of the mortgage and interest, or at least the amount of her payments. The claim was disallowed by the commissioners on claims, but on appeal it was allowed by direction of the circuit judge, the jury finding the sum of $267 for money paid by the claimant and $94.15 for interest, a total of $361.15. The court had previously overruled a motion to direct a verdict for the defendant based upon the claim that, while the claimant’s testimony showed she paid money to Withington, such payments were not shown to have been made upon the mortgage in furtherance of any understanding with Withington, but only that she expected that it was so paid, and therefore did not establish her claim under the provisions of the agreement, and, further, that the statute of limitations (3 Comp. Laws, § 9375) is a bar to this claim. It is contended (1) that the agreement did not create a personal liability on the part of the deceased to pay this mortgage; (2) that by its terms the right to subrogation depended upon payment made by complainant within two years after the date of the agreement; (3) that, if there were ever a valid claim in personam, it is barred by the statute of limitations.

The deceased made an agreement to pay this mortgage within two years. This created a personal obligation, which matured at the expiration of two years without payment. A right of action accrued then.

Had there been no such promise, there was still the obligation to pay the mortgage, and any party in interest might pay it, and be subrogated to the rights of the mortgagee. The mortgage was executed by both George and Jane Clinton, contained an express promise to pay $225 and interest, and was under seal, as also was the separation agreement. Therefore the statute had not run until 10 years had expired. See 3 Comp. Laws, § 9734, and note. The mortgage was dated in June, 1882, payable in 'three years, the separation agreement in November, 1886. George Clinton died October 15,1904. The personal obligation under the mortgage became barred in June, 1895, that under the separation contract in November, 1898, unless the running of the statute was arrested, and there is no evidence that it was arrested by any act of the deceased.

It is contended that payments made by Mrs. Clinton had the effect of extending the statutory period, she being a joint promisor in the mortgage, but this is ruled otherwise in the case of Home Life-Ins. Co. v. Elwell, 111 Mich. 689, and cases cited.

It is said in the appellee’s brief that the right of action did not accrue until after the payment of the mortgage by claimant. We have already said, and it can hardly be questioned, that the right of action for the breach of this contract accrued at the expiration of two years, when the breach occurred. What other promise was there made in that contract? None except that, if she should choose to pay within the two years, she might have a lien on the land, for the payments, by way of subrogation, which she would have had without such provision if she chose to take an assignment of the mortgage, and perhaps without it. But that does not justify the treatment of such a payment as creating a personal obligation to pay such sums from other property on which a personal action will lie. If the separation agreement could be construed as a promise to repay her for all payments that she might afterwards make on the mortgage, that contract (being under seal) would be barred by the statute in 1898 at the farthest. Payments made after that time would not only be made on a mortgage, whose personal obligation was barred, under section 9734, but under a contract whose vitality came to an end under the same statute in November 30, 1896, if it be said that a right of action accrued immediately upon such payment and on November 30, 1898, if the expiration of the two years mentioned in the contract was essential to the accruing of such right of action, and the record shows that but $8 was paid within the latter period, and we should still be compelled to reverse the order for the reason that it was error to refuse to direct a verdict for that amount. But we think that the contract did not create a personal liability to reimburse claimant for such payments as already stated, and therefore the entire claim was barred. We are constrained to say, therefore, that the statute is a bar to the personal claim of the claimant.

What her rights may be as to foreclosure of the mortgage, under the doctrine of subrogation, need not be considered, as they are not before us.

The order is reversed, and a new trial is ordered.

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


author: Montgomery, J.

text:
    UNION TRUST CO. v. GRANT.
    Mortgages — Foreclosure—Default—Payment or Taxes — Construction.
    A mortgage stipulated that the mortgagor should pay the taxes within 40 days after they became due and payable, and procure insurance, and that in default thereof the mortgagee might pay such charges and have a lien on the mortgaged premises therefor; it was further agreed that if the mortgagor should make default in the payment of principal, interest, taxes, or insurance premiums, and the same should remain unpaid for 30 days, the mortgagee might declare the whole sum due and payable. Held, that foreclosure proceedings, based on default in the payment of taxes, could not be brought until 30 days after the mortgagee had paid them, and that a bill merely alleging nonpayment by the mortgagor was insufficient.
    Appeal from Wayne; Rohnert, J.
    Submitted April 17, 1907.
    (Docket No. 30.)
    Decided May 18, 1907.
    Bill by the Union Trust Company against Mary Grant and others to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Reversed, and remanded with leave to amend bill.

      Hobart B. Hoyt (Russel, Campbell, BuTkley & Led-yard, of counsel), for complainant.

      Fred A. Baker, for defendants.
   Montgomery, J.

This is an appeal from a decree of foreclosure. The meritorious question raised is whether, under the averments of the bill of complaint, the mortgagee was entitled to declare the principal sum of the mortgage due at the expiration of 30 days from the time when the taxes upon the mortgaged land became due the tax collector, or whether his right arose 30 days after the mortgagee should have paid the tax and the same became due and payable to him.

The averments of the bill stating the conditions of the mortgage are here stated at length:

“ That in and by said mortgage it was expressly agreed between the parties thereto that the said mortgagors, within 40 days after the same became due and payable, would pay all taxes and assessments which should be levied upon the said lands or upon or on account of said mortgage or the indebtedness secured thereby, or upon the interest or estate in said lands created or represented by said mortgage, or by said indebtedness, whether levied against the said mortgagors, their legal representatives, or assigns, or otherwise, and said mortgagors thereby waived any and all claim or right against said mortgagee, its successors, or assigns to any payment or rebate on or, offset against the interest or principal of said mortgage debt by reason of the payment of any of the aforesaid taxes or assessments.
“That in and by said mortgage it was expressly agreed by and between the parties thereto that the said mortgagors would also keep all buildings erected and to be erected upon said lands insured against loss and damage by fire with insurers and to an amount approved by your orator as a further security to said mortgage debt, and would assign and deliver to your orator all insurance upon said property.
“ That in and by said mortgage it was expressly agreed by and between the parties thereto that if said mortgagors should make default in the payment of any of the aforesaid taxes or assessments, or in procuring and maintaining insurance, as therein covenanted, your orator, its successors, or assigns might pay such taxes and effect such insurance, and that the sums so paid should be a further lien on said premises under this mortgage, payable forthwith, with interest at the rate of 7 per cent, per annum.
“ That in and by said mortgage it was expressly agreed by and between the parties thereto that if said mortgagors should make default in the payment of said principal or interest or taxes, or insurance premiums, or any part thereof, when the same became payable, as therein provided, and should the same, or any part thereof, remain unpaid for the period of 30 days, then the aforesaid principal sum of sixty-eight hundred dollars ($6,800), with all arrearages of interest, taxes, and insurance premiums, should, at the option of your orator, its successors, and assigns, become payable immediately thereafter, although the period above limited for the payment thereof should not then have expired, anything in said mortgage contained to the contrary thereof in anywise notwithstanding.”

The averment of default is as follows:

“ That default has been made in the terms of said mortgage by reason of the failure of said mortgagors, their personal representatives, heirs or assigns to pay the Detroit city taxes on said mortgaged property for the year 1905, and the Michigan State and Wayne county taxes on said property for the year 1905, within the time limited therefor by the terms of said mortgage, and that said taxes still remain a lien against said mortgaged property, although the same long since became due according to the tenor and effect of said indenture of mortgage, and therefore your orator elects to declare the aforesaid principal sum, with all arrearages of interest, taxes, and insurance premiums, immediately payable.”

It will be noted that there is no averment that the mortgagee has paid the tax; but, on the contrary, it is averred that they still remain a lien on the land.

We think the proper construction of this mortgage is that contended for by the appellant. The mortgagor covenants to pay the taxes within 40 days after they become due (to the tax collector). If he makes default, the mortgagee may pay the same, and in that case the sum so paid becomes a further lien on the premises and payable forthwith (to the mortgagee) with interest, etc. If the principal, interest, or taxes, or insurance premiums, are not paid when the same become payable as in the mortgage provided, and remain unpaid for 30 days, then the option is given to declare the whole sum due. The expression “ when the same become payable ” is susceptible of two constructions, the one (as it relates to taxes) when payable to the tax collector, the other when payable to the mortgagee, as in the mortgage provided, to wit, forthwith, after payment by the mortgagee, as by the mortgage authorized. In view of the context, this is the more reasonable construction. In clause 9 the taxes are grouped with the principal and interest which are payable to the mortgagee, leading to the inference that payment to the mortgagee is what is meant by this clause. A more persuasive and controlling consideration, however, is that it is clear that the mortgage contemplates that the mortgagor shall have 40 days after the tax becomes due within which to make payment; and yet, if the complainant’s construction be adopted, the.mortgagee may, while this very time is running, declare the whole mortgage due and payable at once, and begin foreclosure, not for the tax (for the mortgagee is not yet authorized to pay it and add it to his lien), but for the principal sum not yet due. This construction ought not to be adopted when another more consonant with justice is open.

The decree is reversed, and the case remanded, with leave to complainant to amend its bill if it shall be so advised. Defendants will recover costs of this court and of the court below up to this date.

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


text:
    THOMAN v. GROSS.
    Boundaries — Establishment — Practical Location — Agreement oe Parties — Continuation as Agreed Upon.
    Where adjoining landowners joined in the erection of a building, with a party wall on what was supposed to be the line between their lands, but before the walls were completed were led to doubt the accuracy of their line, whereupon, to save the cost of tearing down the walls, they agreed to let the walls stand where they were and go on and complete the building, there was not the establishment of a disputed boundary line which should be held to apply to the entire length of the line, but an agreement to disregard the true line which did not affect the remainder of the land.
    Appeal from Ingham; Wiest, J.
    Submitted April 17, 1907.
    (Docket No. 103.)
    Decided May 18, 1907.
    Bill by Frederick Thoman against John G. Gross to enjoin an encroachment. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Thomas, Cummins & Nichols, for complainant.

      Jlollin H. Person, for defendant.
   Hooker, J.

The complainant, Thoman, and Barker & Parker, who are defendant’s grantors, joined in the erection of a building comprising three stores, the north one belonging to complainant and the others to them; the parties owning the north one-third and the south two-thirds of lot 3, block 83, in the city of Lansing, respectively. The record conclusively shows that the partition wall between the stores of the complainant and the defendant is about 15 inches too far south, and to that extent is over upon the south two-thirds of lot 3. A year or two after the completion of the building, the complainant, Thoman, built a small frame addition to the rear of his building, with a platform and stairway leading from the second story to the ground, and he has since used them. In 1902 the defendant, Gross, became the owner of the premises previously owned by Barker & Parker, and began the erection of a platform, as a part of a projected building, which extended north of the line of the partition wall. The accompanying plat shows the situation of the

premises. The building was constructed about 1885, and the lots in the rear have since been used by both parties indiscriminately, except that Thoman has had exclusive use of his barn and stairway. Gross began the erection of a building a year or two ago, when this bill was filed to restrain it, claiming that the boundary line between the north one-third and south two-thirds was settled for the entire length of the lot when the partition wall was erected, and that the platform encroached upon complainant’s premises.

It is plain that, when these walls were started, the owner relied upon Appleton’s stake as marking the north line of lot 2. Before the walls were completed, however, they were led to doubt its accuracy. They did not measure again, nor does it appear that they were convinced by Appleton’s reassurance; but, acting upon the fact that the buildings were partly erected, and the cost attendant upon tearing down and changing the location of the walls, they agreed to let the walls stand where they were and go on and complete the building. This is not inconsistent with a mutual knowledge that the walls were not upon the proper lines, and an agreement to disregard the fact, which agreement would be void under the statute of frauds. Thoman certainly knew it soon after, for he testified :

‘£ That is my recollection, but nothing beyond the cellar walls. There was an old fence between me and Dr. Haze. We were not much south of that fence. In excavating the ground caved down, and I think the fence fell in. I know from personal knowledge that we wei'e south of the fence. . I always understood that we were too far south. My barn has since been built north of the line of that wall, I don’t know just how far. It comes up very close to the old line. That barn was built two years ago. Appleton started to measure from Michigan avenue. I don’t know whether he staked the middle of the center walls or not. I know he staked the north and south corners of the stores. I never knew, before I heard Mr. Collar testify today, that the store was more than 66 feet wide. I don’t know how it became so. We got Appleton to fix where the lines of our store should be. He had a man to assist him in the survey. Messrs. Barker & Parker understood, also, that the stores were too far south; that is, we understood that it was reported. We talked it over: ‘ Why, here, this would be a great note, if we were too far south. Now, if that is the case, we had better find out.’ So we got Appleton a second time. I don’t think he went over his survey. He simply came down there and said, in his emphatic way — said that those were the lines. ‘You build there, and you are all right. It don’t make any difference what anybody else says. I know what I am about.’
Q. There wasn’t any dispute between you and Barker & Parker ?
“A. Why, not any dispute; but we talked the matter over. We said: ‘We will go on and build here now. We have started, and we will build.’”

He has since claimed land north of the line of the north wall, and built a barn upon it, so that he now claims somewhere near two feet more land than his deed conveyed. We therefore conclude that this was not the establishment of a disputed boundary between the premises of these parties, which should be held to apply to the entire length of the line, but, on the contrary, an agreement to disregard the true line, wherever it might be, for the purpose of erecting the buildings of the parties. The remainder of the land, west of the building, was not affected by it.

The decree is affirmed.

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


author: Moore, J.

text:
    SCHWANBECK BROS. v. A. BACKUS, JR., & SONS.
    1. Injunction — Injury to Business — Evidence—Sufficiency.
    On a bill to enjoin defendants from ascertaining to whom complainant is shipping goods and threatening them with litigation if they use goods manufactured by complainant, evidence examined, and held, to support a decree for complainant.
    2. Same — Equity—Jurisdiction.
    Equity will take cognizance of a bill to restrain defendants from acquiring information as to who are complainant’s customers and injuring complainant’s business by threatening them with litigation if they purchase or use goods manufactured by complainant.
    Appeal from Wayne; Mandell, J.
    Submitted April 17, 1907.
    (Docket No. 75.)
    Decided May 18, 1907.

      Bill by Schwanbeck Bros, against A. Backus, Jr., & Sons and others to enjoin an interference with complainant’s business. From a decree for complainant, defendants appeal.
    Affirmed.

      James Swan, for complainant.

      Washington I. Robinson, for defendants.
   Moore, J.

The bill of complaint filed in this cause alleges that A. Backus, Jr., & Sons, a Michigan corporation, one of the defendants, is one of its competitors in business; that Edgar S. Wheeler and B. F. Wheeler, doing business as E. S. Wheeler & Co., are the patent attorneys of A. Backus, Jr., & Sons, and also Sarah E. Backus, doing business as S. E. Backus, and Henry M. Backus, Newton Backus, Edwin F. Hulbert, and Joe Henze, the other defendants, are individuals; and that all of the defendants are confederating and co-operating together to injure the business of the complainant.

The bill of complaint states in detail the methods used to obtain information as to the business done by the complainants, and who their customers are, and then avers:

“ That after acquiring information so obtained, S. E. Backus, one of the defendants, confederating with A. Backus, Jr., & Sons, another defendant, had annoyed and harassed the customers of this complainant by mailing to them certain circulars containing a cut of a box purporting to be the box manufactured by the defendant A. Backus, Jr., & Sons, and claiming that certain manufacturers had placed upon the market boxes and packages in imitation of goods manufactured under patents held by her. That the said circulars did not represent the style of the box manufactured by A. Backus, Jr., & Sons under her patent, but was a good sketch of the box manufactured by the complainant. That it was intentionally made so for the purpose of deceiving the public, and more particularly the customers of complainant, and intimidating them to prevent them from purchasing the box manufactured by the complainant. The said circulars were sent by registered letter to the customers of complainant who had ordered from it, sometimes within a day or two after shipments were made, and sometimes before the orders had been filled in the factory of complainant. That'the defendant E. S. Wheeler had sent threatening letters to the customers of complainant threatening them with suit for' infringement of patent. That the said letters were purposely worded to deceive the persons receiving same by stating that the packages complained against ‘had metal strands crossing outer face of the packages.’ That the boxes manufactured by the complainant are woven with flat strands of metal one-half inch wide. That the box manufactured by the defendant A. Backus, Jr., & Sons is woven with wii’e one-eighth of an inch in diameter. That S. E. Backus had no patent on any package calling for ‘metal strands crossing the outer face of the package.’ That the patent under which it (A. Backus, Jr., & Sons) was operating was a patent owned by S; E. Backus and called for the use of ‘ stay wires extending from the outer sl’ats across the outer face only of one fabric and binding wires uniting the slats to the stay wires. ’ That upon information so perniciously acquired, the said A. Backus, Jr., & Sons came into unfair and immoral competition with complainant and caused it great annoyance and pecuniary loss. That also upon the information so acquired, Henry Backus, Newton Backus, and Edwin F. Hulbert, being agents and officers of A. Backus, Jr., & Sons, had personally called upon customers of complainant and verbally threatened them with prosecution and litigation if they should handle or sell any of the goods manufactured by the complainant.”

The bill of complaint also avers complainant is not now infringing, nor ever has infringed, upon any patent owned by S. E. Backus or any other person, that it has invited her to start suit in the proper tribunal where such questions are litigated, and that the said Sarah E. Backus willfully refrains from doing so. The bill prays for an injunction.

The defendants answered, denying many of the averments of the bill, and allege the other acts done by defendants were proper acts for them to do.

The case was heard before a circuit judge. He, filed a written opinion, reading, in part, as follows:

“ It is not disputed that some of the defendants sent to various persons throughout the United States, customers of complainants, circulars and letters informing them that certain boxes put upon the market were infringements of patents owned by the defendant’s company. The fact that such a large number of these circulars and letters were sent so soon after shipments of complainants, and the fact that defendants were keeping track of complainant’s customers, convinces me that the officers of defendant corporation, in sending the circulars and securing the sending of the letters referred to in the bill of complaint, referred in them particularly to the goods of the complainants. As the probable effect of injury to complainant’s business followed, it is but fair to presume this effect was intended. These acts or conduct is, in my opinion, unlawful. It is defended on the ground that complainants are not entitled to relief, as they do not come into court with clean hands, as it is claimed they imitated, in many ways, the goods sold by the defendant corporation, and a large number of cases are cited by the defendant to sustain the claim that this is unlawful; but these cases refer only to cases where there was fraud in the attempt to palm off one’s goods as the goods manufactured by another, or in deceiving the public as to the goods offered for sale, by imitation, in cases where from the long use of a trade-mark or some special device one has obtained a property right in such trade-mark or special device. But such is not the case here. Having no jurisdiction to do so, I do not pass upon the question as to whether complainant’s package is infringing upon the defendant’s patent, any more than to find it is not obviously so. It follows, therefore, complainants are entitled to the relief sought in the bill of complaint. An injunction will issue accordingly.”

He also made a decree reading, in part, as follows:

“We do therefore, in execution of the said decree, hereby firmly enjoin and command you, the defendants, A. Backus, Jr., & Sons, a Michigan corporation, Edgar S. Wheeler and Benjamin F. Wheeler, doing business as E. S. Wheeler & Co., Sarah E. Backus, doing business as S. E. Backus, Henry H. Backus, Newton Backus, Edwin F. Hulbert, and Joe Henze, to refrain and desist from employing or hiring any of your agents, officers, or servants from entering the factory of complainant or from coming near the factory of complainant, and following the complainant’s wagons; or from going to the freight depots in the city of Detroit, or elsewhere, for the purpose of ascertaining to whom this complainant is shipping its goods; and after having ascertained who are the customers of complainant, from, either yourself, or confederating with any of the other defendants herein, or any other person, for the purpose of intimidating the customers of complainant, either verbally or by sending out circulars or letters threatening them with litigation if they purchase or use the goods manufactured by complainant, in the manner shown in the circular contained in the bill of complaint, or in any other manner injurious to complainants.”

The case is brought here by appeal.

The important question is one of fact. The printed record is a long one. We have examined the record with care. It would profit no one to give a detailed account of the testimony. We think it justifies the decree made. See O. & W. Thum Co. v. Tloczynski, 114 Mich. 149 (38 L. R. A. 200), and especially Emack v. Kane, 34 Fed. 46. We have examined the cases cited on the part of defendants in support of the proposition that a court of equity will not take cognizance of such a case. Ysle do not draw the same conclusion from them as does the solicitor.

The decree is affirmed, with costs.

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


text:
    DICKINSON v. BOARD OF CANVASSERS OF CHEBOYGAN COUNTY.
    1. Certiorari — Questions Considered — Propriety op Remedy Below.
    On certiorari to review the action of the circuit court in denying a mandamus, it having been denied on the merits, the propriety of the remedy by mandamus is open to question, since the court’s assumption that mandamus was the proper remedy was equivalent to so deciding.
    2. Appeal and Error — Decision of Cause — Affirmance—Correct Decision on Wrong Ground.
    On certiorari to review the action of a circuit court in denying a mandamus, it having been denied on the merits, a determination that the judge was wrong in his conclusion on the merits does not require that his decision be reversed and the writ granted, if in fact the remedy sought was an improper one, since in such event the case would be affirmed, under the rule that a case properly decided will not be reversed because a wrong reason was given for the decisión.
    3. Mandamus — Propriety — Compelling Particular Action-Board of Canvassers.
    Where a board of canvassers refuses to make a recount it may be compelled to proceed and make such recount, but when it has acted, declared the result, and adjourned, mandamus will not lie to compel it to reconvene, and declare some other result, which a court of justice may determine to be a more just one, the remedy, in case of an erroneous recount, being by quo warranto.
    Certiorari to Chippewa; Steere, J.
    Submitted April 23, 1907.
    (Calendar No. 22,103.)
    Decided May 18, 1907.
    Mandamus by Christopher A. Dickinson to compel the board of canvassers of Cheboygan county to count certain ballots rejected by it as invalid. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Frost & Sprague, for relator.

      Reilley & McPhee, for respondent.
   Hooker, J.

The relator and one Paquette were rival candidates for the office of county treasurer of Cheboygan county. The returns of the inspectors of the various precincts gave the relator a majority of 85 votes. When the board of county canvassers convened, Paquette presented a petition for a recount of the ballots cast in the townships of Ellis, Forest, Mackinac, Koehler, and Nunda. On this recount all of the votes cast in the townships of Ellis and Koehler were rejected, which changed the result, giving Paquette a majority of 56. The ballots cast in Ellis township were rejected because initialed in blue pencil, and not in ink; those in Koehler, because initialed in blue pencil, or lead pencil, and not in ink. The board continued in session from November 13th to November 24th. On November 24th they finally determined the facts as prayed for in the petition for recount. Thereupon, on application of the relator’s counsel, they adjourned to the following Tuesday, to hear a petition for recount to be presented on behalf of relator. On that day they were served with the order to show cause issued in this cause, and restraining them from issuing a certificate of election of Paquette.

Two questions were presented to the circuit court: (1) Is this a proper case for mandamus ? (2) If so, were the ballots properly rejected ? The court assumed that the remedy was a proper one, and held that the ballots were properly rejected, and the relator has brought the case here by certiorari.

Relator’s counsel say that only the latter question is before us, inasmuch as the circuit court passed upon it, and did not discuss the former. The assumption that mandamus was a proper remedy was equivalent to so deciding. If the judge was wrong in his conclusion upon the question of the invalidity of the ballots, it does not follow that his decision must be reversed and a writ granted, if in fact the remedy sought was an improper one. In such event the case would be affirmed, under the familiar rule that a case properly decided will not be reversed merely because an erroneous reason was given for the decision. We must hold, therefore, that the question of remedy is open, and is the first to demand attention.

We held in the cases of Packard v. Board of Canvassers, 94 Mich. 450, and Henderson v. Board of Canvassers, 94 Mich. 452, that where a board refuses to make a recount, it may be compelled to proceed and make such recount, but that when such board has acted, declared the result, and adjourned, a mandamus will not lie to compel them to reconvene, and declare some other result, which a-court of justice may determine to be a more just one. In other words, the courts will set refractory boards in motion, but will not control their action in recounting the votes over which they have jurisdiction by mandamus. If the recount is erroneous, the remedy by quo warranto is open. We do not overlook the case of Horning v. Board of Canvassers, 119 Mich. 51, where an order granted a mandamus in a case quite similar to this. Apparently the jurisdictional question was not raised by the assignments of error. Had it been, the case would have been ruled by Packard v. Board of Canvassers and Henderson v. Board of Canvassers, supra.

The order is affirmed.

Mo Alva y, C. J., and Carpenter, Montgomery, and Moore, JJ., concurred.


text:
    GRIFFIN v. LENAWEE PROBATE JUDGE.
    Insane Persons — Nonresidents — Guardians — Power to Appoint.
    Under section 8729, 8 Comp. Laws, the judge of probate has authority to appoint a guardian for an incompetent who is a nonresident of this State, who is without near relatives or friends, and who has been left an estate in this State which is likely to be squandered if turned over to her.
    Certiorari to Lenawee; Chester, J.
    Submitted April 30, 1907.
    (Calendar No. 22,184.)
    Decided May 18, 1907.
    Mandamus by Edmund H. Griffin to compel Harry L. Larwill, probate judge o£ Lenawee county, to proceed to a hearing of a petition for the appointment of a guardian of the estate of a nonresident. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      Bird & Sampson, for relator.

      D. B. Morgan, for respondent.
   Moore, J.

Application was made to the probate court for Lenawee county 'by Edmund H. Griffin to have a guardian appointed for the person and estate of Penninah Taylor, a nonresident of Michigan. The probate court decided that, as Penninah Taylor was a nonresident, he had no jurisdiction to make such appointment, and refused to hear or pass upon the merits of the case. Mr. Griffin then applied to the circuit court for a writ of mandamus to compel the probate judge to proceed to a hearing of the merits of the case. An answer was made by the probate judge, and after a hearing the circuit judge ordered a writ to issue, directed to the probate judge, advising him that he had jurisdiction in the premises, and directing him to proceed to a hearing upon the merits. The respondent, by writ of certiorari, brings the proceeding to this court and seeks to have the order of the circuit court vacated.

The petition for the appointment of a guardian for Penninah Taylor shows, in substance, (a) that Edmund H. Griffin is the administrator de bonis non of the estate of Samuel Taylor, deceased, the deceased husband of said Penninah Taylor, that he has in his hands upwards of $1,800 ready for distribution, and that she is entitled to the whole of said estate; (6) that Samuel Taylor was a resident of the county of Lenawee at the time of his death, that Penni-nah Taylor, his widow, is the only person interested in said estate, and that, at the time that administration upon said estate was commenced, the said Penninah Taylor was a ‘resident of Lenawee county, but that subsequently she moved to Parkersburg, West Virginia, to reside with a daughter, and that afterwards her daughter died, and she is living among strangers in the city of Parkersburg; (c) that the said Penninah Taylor is a colored woman of the age of 75 years and upwards; that she is weak and feeble physically, and is unable to care for herself; that she is without education and is mentally weak and is mentally incom'petent to have the charge, custody, and management of said fund; that she has no relatives in the State of Michigan, and states, upon information and belief, that she has no relatives in the United Státes, save one granddaughter, whose name and residence are unknown to the petitioner; (d) that he is a friend of the said Penninah Taylor, and that on account of his friendship for her and desire to protect her and prevent her estate from being squandered he makes the application; (e) that he has already paid the said Penninah Taylor $750 out of the assets of said estate; that within a very few weeks thereafter she had none of it left, and that in the judgment ‘of petitioner, if the balance of the assets of the estate were turned over to her, it would go in a like way and she would soon be a charge upon the public. The prayer of the petition was for the appointment of a guardian for the person and estate, for the estate and for the person.

The contention of the relator is that the probate court has jurisdiction to appoint a guardian for Penninah Taylor, for the reason that he has jurisdiction of the fund which belongs to her; and, even if that part of the law which provides for the appointment of a guardian for the person should be eliminated, the rest of it should be preserved so that the estate of nonresident minors and incompetents can be protected.

The claim of the attorney for Mrs. Taylor is that his client is neither an inhabitant or resident of Michigan, and therefore the court has no jurisdiction to declare her incompetent and appoint a guardian for her or her property. He contends that, if the legislature intended to authorize the appointment of a guardian under the circumstances disclosed by this record, the statute would be unconstitutional, as it would deprive his client of liberty and property without due process of law.

If the court has authority to make the appointment, it is by virtue of section 8729, 3 Comp. Laws, which reads:

“When any minor or other person liable to be put under guardianship, according to the provisions of this chapter, shall reside without this State, and shall have any estate therein, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to the judge of probate of any county in which there may be any estate of such absent person; and after notice given to all persons interested, in such manner as the judge shall order, and after a full hearing and examination, if it shall appear to him proper, he may appoint a guardian for such absent person.”

And see, also, sections 8730, 8731, 3 Comp. Laws.

In Re Rice, 42 Mich. 528, Justice Campbell, speaking for the court, said: ■ .

“Our laws usually contemplate the appointment of a guardian who has custody of the estate, whoever may have the custody of the person, and provide for no corporation guardianships. * * *
“Our laws contemplate that guardians may be appointed for infants, whatever may be their residence, who have property in this State, and do not recognize any absolute right in foreign guardians to be recognized. Whatever respect is paid them springs from comity and not from law, and is therefore not a matter of right.”

In construing a statute quite like ours, the court in Davis v. Hudson, 29 Minn. 27, used the following language:

“Beyond question, these provisions of statute assume to authorize a probate court of this State to appoint a guardian 'for a nonresident minor, as respects any estate which the minor may have in the county where such probate court is established. With a valid authority to this extent our probate courts may properly be invested. Statutes conferring like authority have been in force here ever since the organization of the Territory of Minnesota, and similar laws are found in Massachusetts, Ohio, Vermont, Michigan, Wisconsin, and other States. Jurisdiction to appoint a guardian exists as well when the infant has property in the State where the jurisdiction is sought to be exercised, as when he is domiciled therein. It rests upon a like basis in both cases, viz., the right and duty of a government to take care of those who are unable to take care of themselves as respects either person or property. McLoskey v. Reid, 4 Bradf. (N. Y.) 334; 1 Wharton on Conflict of Laws, §§ 259, 261, 265, 266, 268. And see Clarke v. Cordis, 4 Allen (Mass.), 466. With respect to real estate, it is to be added that the control and disposition of it must necessarily be subject to the lex rei sitse.
“If a general guardian be appointed for a nonresident minor, and il be admitted that the appointment is, on account of its generality, too broad, there is no reason why it should not be held good to the extent to which it would have been lawful and competent to make it, to wit, to the extent of the minor’s estate within the jurisdiction in which the appointment is made. In the case at bar the minor was a resident of the State of New York, and owner of land in our county of Goodhue. It was therefore competent for the probate court of Goodhue county, and within its general jurisdiction, to appoint a guardian for him as respected such land (being the same which is in controversy in this action), and the appointment of a general guardian would be good to that extent.”

See, also, West Duluth Land Co. v. Kurtz, 45 Minn. 380; Neal v. Bartleson, 65 Tex. 478.

We think it evident the legislature undertook to authorize the appointment of a guardian under the circumstances disclosed by this record.

The judgment of the circuit court is affirmed.

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


author: Grant, J.

text:
    BOARD OF SUPERVISORS OF MISSAUKEE COUNTY v. VAN LIEW.
    1. Costs — Criminal Prosecutions — Liability or Complaining Witness.
    A private person is not liable, under section 13014, 3 Comp. Laws, for the costs of a criminal prosecution begun by him and terminating in a nolle prosequi, where he made a full statement of the facts, to the prosecuting attorney and the prosecution was authorized by him.
    3. Same — Security.
    Section 13014, 3 Comp. Laws, does not make the complaining party liable for the costs of a criminal prosecution terminating in a nolle prosequi where he has not given security, nor authorize the court in such case to make a certificate in his minutes that there was probable cause for making the complaint.
    Error to Missaukee; Chittenden, J.
    Submitted January 11, 1907.
    (Docket No. 38.)
    Decided June 3, 1907.

      Assumpsit by the board of supervisors of Missaukee county against George Van Liew for certain fees and costs in criminal proceedings instituted by defendant. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Plaintiff instituted this suit in justice’s court to recover certain fees and costs expended by the sheriff of the county in a criminal prosecution upon a complaint made by the defendant. The action is in assumpsit. Plaintiff recovered in the justice’s court a judgment for $243. Upon appeal the circuit court, upon a statement of the plaintiff’s cause of action, directed a verdict for the defendant. The facts upon which plaintiff sought to recover are these, as appears from the opening statement of counsel: Defendant had a chattel mortgage upon personal property, made by two parties, named Drew and Hendrick. Contrary to the statute, they removed the property from the county. Defendant made a complaint against them for larceny of the property. Drew and Hendrick were found by the sheriff in Indiana, brought back, appeared before the justice, waived examination, were bound over to the circuit court for trial, and were there discharged upon a nolle prosequi, entered by the court upon motion of the prosecuting attorney. The sheriff’s bill of fees and expenses was presented to the plaintiff, allowed by it, and paid by the treasurer of the county. Defendant gave no security for costs upon making complaint, and it does not appear that any security was demanded. In entering the order the court did not certify that there was a probable cause for making the complaint by the defendant; neither does it appear that this subject was called to the attention of the court.

      E. E. Sawyer (William W. Potter, of counsel), for appellant.

      E. O. Gaffney (Henry Miltner, of counsel), for appellee.
   Grant, J.

{after stating the facts).

The liability of the defendant is based upon 3 Comp. Laws, § 12014, which reads as follows: , .

“ That in all prosecutions for any crime or misdemeanor, when the prosecution is at the instance of a-private person, and not of some public officer or of the grand jury, such person shall give security for costs, and if the defendant or prisoner be discharged on examination by such magistrate, or acquitted on trial, or a nolle prosequi be entered on the indictment by order of the court before which it may be pending, the prosecutor shall pay all costs which shall have accrued to the court, sheriff, constable and jury, and upon proceedings had upon such complaint, execution shall issue for the collection of such costs as in civil cases, as well against the surety as against the prosecutor, unless the magistrate or, court before whom the complaint is made or trial is had, shall certify in his minutes that there was probable cause for the making of such complaint.”

This statute was enacted in 1849 (Act No. 77, Laws of 1849). In 1883 (Act No. 108, Pub. Acts 1883) the legislature enacted—

"That it shall not be lawful hereafter for justices of the peace to issue warrants in any criminal cases, except in cases not cognizable by justices of the peace, or breach of the peace committed in the presence of the officer making the arrest, until an order in writing allowing the same is filed with such justice, and signed by the prosecuting attorney for the county, or unless security for cost shall have been filed with said justice: Provided,” etc. 1 Comp Laws, § 1061.

The proviso is unimportant.

It is held in People v. Griswold, 64 Mich. 722, that the failure to file security for costs, even in cases cognizable by justices of the peace, was no concern of the respondent, that the act did not limit or curtail the jurisdiction of justices of the peace, and that the people through their representative, the prosecuting attorney, might approve the prosecution, though no security were given. It is held in Sunderlin v. Board of Sup’rs of Ionia Co., 119 Mich. 535, and Hutchinson v. Board of Sup’rs of Ionia Co., 130 Mich. 62, that justices of the peace, by failure to comply with the statute, were subject to a loss of fees. By these provisions of the statute the public are sufficiently protected against liability for the costs of suits which are improvidently started and prosecuted at the instance of private individuals. •

The crime charged by the defendant was a serious one. Counsel for plaintiff did not offer to show that the prosecution was not authorized by the prosecuting attorney. Counsel for defendant in their brief state that the prose; cution was authorized by him, but there is no evidence of it. If the defendant made a truthful statement of all the facts to the prosecuting attorney, and he advised and authorized the prosecution, the defendant would not be liable in an action for malicious prosecution or false imprisonment. The same rule ought certainly to exempt him from the payment of costs, where he has acted in good faith, has not been asked to give security for costs, and the prosecuting attorney has waived it. Are prosecuting attorneys prohibited to entertain proceedings based upon the complaints of private citizens unless they will give security for costs ? Undoubtedly the law contemplates that police officers, in all those crimes which affect the public-welfare shall, upon the receipt of information, investigate, lay the results of their investigation before the prosecuting attorney and the magistrate, and themselves make the complaints if the prosecuting attorney directs them. The law neither requires nor prohibits a private individual to make complaints. In the absence of official action, the prosecuting attorney and the magistrate may determine whether the facts disclosed are sufficient to justify the making of a complaint, and may authorize the private citizen to make it. Where the private citizen has done this, acting under the advice or assent of the prosecuting attorney, he is not liable for the costs.

If, however, I am wrong in the above conclusion, I think it entirely clear that the statute does not make the complaining party liable for the costs where no security has been given. The action of the circuit judge in certifying that there was probable cause for the making of the complaint applies only where the complaining witness has given security. The statute provides for a summary disposition of the question of costs and the entry of judgment, and that execution upon that judgment shall issue against the complainant and his surety. The statute does not say that the complaining party shall be liable without security, or that the court may make the certificate in his minutes where no security has been given. It does say that he shall be liable when he has given security.

Two other important questions are presented by the record; but this disposal of the case renders it unnecessary to discuss them. •

Judgment affirmed.

McAlvay, C. J., and Carpenter, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    BIDWELL v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Master and Servant — Contract op Employment — Authority op Agent — Overtime.
    In an action by an employé of a railroad company to recover for overtime, evidence examined, and held, to justify an instruction leaving to the jury the question whether defend - ant’s agent, who employed plaintiff, had authority to contract to pay plaintiff for his overtime, as indicated by the agent’s conduct and duties and his relation to the company and the men under him.
    2. Same — Receipts in Full — Eppect.
    Where a railroad employé under contract for a stipulated sum per month, with extra pay for overtime, signed a pay roll containing a receipt in full each month on receipt of the stipulated monthly wage, but spoke to the railroad company’s agent, who employed him, from time to time about the overtime, and was assured he should be paid for it, the question whether he in fact understood he was receiving pay in full each month was for the jury.
    3. Same — Waiver.
    Plaintiff having at different times called the attention of defendant’s agent with whom the contract was made, to the fact that his pay for overtime was being withheld, and being assured that he would receive the pay, the question of waiver or estoppel by signing the pay roll without protest is for the jury.
    4. Sunday — Labor—Work of Necessity.
    A checker in a railroad company’s freight sheds cannot recover for overtime put in on Sundays in checking for over and short freight and doing clerical work which could as well have been performed on Monday by the employment of more help, such work being in no sense work of necessity.
    Error to St. Clair; Tappan, J.
    Submitted February 12, 1907.
    (Docket No. 118.)
    Decided June 3, 1907.
    Assumpsit by George M. Bidwell against the Grand, Trunk Western Railway Company for work and labor. There was judgment for plaintiff, and defendant brings error.
    Affirmed on condition.

      H. Geer, for appellant.

      Stevens, Graham & Stevens, for appellee.
   Montgomery, J.

The plaintiff sued to recover for overtime while employed by the defendant as foreman in its freight sheds at Port Huron. The claim was for 1,110 hours overtime, made up of 425 hours during week days and 685 hours on Sunday. The plaintiff recovered pay for both items in full; but on motion for a new trial he was required to remit $65.07, being one-half the amount recovered for overtime for Sunday work; the court being of the opinion that the only definite basis upon which to figure the time employed on Sundays was the testimony of plaintiff that he put in at least five hours on each Sunday. The plaintiff remitted the amount, and defendant has brought error, claiming, first, that plaintiff is not entitled to recover any sum for overtime; and, second, that under no circumstances could he recover for the Sunday work. The facts are that the plaintiff had previously been employed by defendant as checker in the freight sheds at Port Huron; that while working as checker he received $1.40 a day for 10 hours a day, and was paid overtime for the time put in in excess of 10 hours a day. During his employment in the service for some 10 years he received each month from the pay car his check and signed the pay roll therefor. After his employment as foreman, as hereinafter stated, plaintiff continued to receive his pay monthly at the rate of $50 per month, but no payment for overtime. He signed vouchers, which at the head contained the following recital:

“Received from the Grand Trunk Railway System, the amount set opposite my name in the following list, in full of all demands for work during the regular and irregular working hours of said railway, up to and including the date of this pay roll.”

Plaintiff testified that in signing the pay roll he did not know that it contained this receipt; that he supposed that he signed for the $50 that he received; that he frequently mentioned his overtime to Mr. Waters, defendant’s agent at Port Huron, who assured him that it would be paid for.

The plaintiff’s testimony tended to show that, when he was employed as foreman, he made his contract with Mr. Waters that he should receive $50 per month and pay for overtime. Mr. Waters denies the agreement for overtime, and testified that he had no authority to enter into any contract with the plaintiff to pay for overtime. He also testified that the only persons having authority to make contracts for wages are the manager at Montreal, and the ■superintendent of the western division at Detroit. His testimony, properly construed, indicates that this limitation upon his power was a limitation upon the power to fix wages. It is undoubted that he made the contract with plaintiff, and a fair construction of his testimony shows that he had authority to hire and discharge men. In answer to the question, on cross-examination, “You do know that you hire and discharge such men as you wish to hire and discharge ?” he answered:

“I have got my pay roll staff to go by. I can discharge any of the men for cause. The superintendent discharges some of them. I see that the necessary mentó do the work are there.”

The question' is not so much as to what the actual authority of Mr. Waters was as what his apparent authority was. The circuit judge charged the jury:

“ It is not necessary that there shall be written authority in order to establish authority, but you must find some authority on the part of Mr. Waters, as indicated by his conduct and his duties here and his relation to the railroad company and his relation to the men under him. That is the way you will determine the question of authority and right.”

We think the testimony in the case justified this instruction, and that there was ample testimony of a holding out of Mr. Waters as authorized to make the contract in question. The circuit judge charged the jury as to the question of the pay roll as follows:

“ If you find that those conditions afford plaintiff a reasonable opportunity to see and know the purport and effect of these receipts, then the plaintiff cannot recover. In this connection you are to consider the conditions under which he signed. You are to determine whether the methods employed by the officers in charge of the car gave him a reasonable opportunity to know the statements at the head of the column. If you find that he had no such reasonable opportunity, then the receipt does not bind the plaintiff.”

We think, in view of the testimony of plaintiff that he from time to time spoke to Mr. Waters about his overtime, that it was a question for the jury as to whether he in fact understood that he was receiving payment in full each month.

Defendant’s counsel claim that the case falls within Bartlett v. Railway Co., 82 Mich. 658, and Davis v. Boat Works, 121 Mich. 261. "We think, however, that upon this branch the case is ruled by O’Boyle v. City of Detroit, 131 Mich. 15. In the present case the plaintiff showbd a distinct contract to be paid for his overtime. He showed that, while receiving his pay for regular hours during the period of employment, he distinctly called the attention of the agent, with whom his contract was made, at different times to the fact that his pay for overtime was being withheld, and was assured that he would receive the pay. In this respect the case closely resembles O’Boyle v. City of Detroit. We think it was a question for the jury as to whether the plaintiff waived or estopped himself from receiving pay for overtime.

Upon the question of the right to recover for the Sunday service, we are constrained to say that there is nothing in the record to show that the work rendered on Sunday was a work of necessity. In summing up the necessity for the Sunday work, the plaintiff testified as follows:

“Q. What would be the result, instead of. going down there Sunday and the. other men going down there Sunday, having to go down Monday morning and do their work that they did on Sunday on Monday morning before going to the other work ?
“A. The result would be that we would have to have more help to do it. Freight that would have to be handled on Monday would be stayed. It could not be handled. It could not be moved.”

It cannot be said that this presents a case of anything more than convenience. It was not a case of necessity. No freight was received at the sheds on Sunday, and none was delivered except perishable freight, and it was not disputed that another man was paid for attending to this freight. The work which Mr. Bidwell performed on Sundays was checking the shed for overfreight and short freight and performing clerical work. There is no doubt that this could have been done on Monday except for the fact that it might have required more help, as stated. The plaintiff is not entitled to recover for Sunday service under the rule laid down in Allen v. Duffie, 43 Mich. 1; Com. v. White, 190 Mass. 578 (5 L. R. A. [N. S.] 320).

A new trial must be granted, unless the plaintiff shall remit from the judgment the further sum of $65.07. The defendant will recover costs of this court.

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


author: Carpenter, J.

text:
    SCOTT v. BRUSSE.
    Sales — Rescission—Misrepresentation.
    A purchaser of shares of stock cannot rescind because of misrejpresentations by the seller as to its value on which he did not rely, having relied upon his own judgment and upon information received from other stockholders and officers of the corporation, nor because of false representations in an annual report of the corporation, sworn to by the seller, but not brought to the purchaser’s attention before he made the purchase.
    Appeal from Ottawa; Padgham, J.
    Submitted February 20, 1907.
    (Docket No. 113.)
    Decided June 3, 1907.
    Bill by Benjamin L. Scott against William Brusse and Cornelia Brusse to set aside certain deeds. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Wilkes & Stone, for complainant.

      Diekema & Kollen, for defendants.
   Carpenter, J.

In October, 1903, complainant transferred to defendants land in exchange for shares of stock in the Walsh-De Roo Milling & Cereal Company, a corporation doing business at Holland, Ottawa county. He brings this suit to secure a reconveyance of said land, upon the ground that fraud practiced by the first-named defendant induced him to make said transfer. An issue was framed. The case was heard, testimony being taken in open court, and a decree entered dismissing complainant’s bill. That decree complainant asks us to reverse.

The testimony proves that complainant was deceived as to the value of the stock, for it was worth much less than the land exchanged for it. Did fraud for which defendants were responsible cause that deception ? The charges of fraud made in complainant’s bill of complaint are two in number:

(1) Certain false representations respecting the value of the stock made by said defendant William Brusse immediately before the exchange was made.
(2) Certain false representations respecting the assets and debts of the corporation made in its annual report filed in September, 1903, which report was sworn to by defendant William as secretary of said corporation.”

We will consider each of these charges of fraud separately.

As to the alleged false representations respecting the value of the stock a careful study of the conflicting evidence convinces us that the only false representation respecting the value of the stock made by defendant William was this, viz.: He predicted that the stock would prove a profitable investment. We think that complainant was not entitled to relief on account of this statement, because in making the exchange he did not rely upon it. He at that time owned stock in the company, and had already formed a judgment as to its value. In making the exchange in question he relied upon said judgment and upon the result of the information obtained by him from other stockholders and officers of the corporation.

Respecting the false representations in the annual report, if is quite clear that this report, which was sworn to by defendant William as secretary of the corporation, did contain material false representations. It is proper to say, however, that said defendant William acted in good faith in making this report. It contained false statements, because he was deceived by false entries on the books of said corporation made before he became its secretary. Complainant is not entitled to relief on account of the false statements in said report, because they were not brought to his attention before he made the purchase and they contributed in no way to deceive him.

We conclude, therefore, that the trial judge properly disposed of the case, and that the decree should be affirmed.

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