text:
      In re RODGERS’ ESTATE. RODGERS v. KALAMAZOO BAPTIST COLLEGE.
    1. Executors and Administrators — Estates of Decedents — Pro-late Courts — Appeal.
    An order of the probate court authorizing the sale of real property under a decedent’s will was appealable, pursuant to 1 Comp. Laws, § 669, as amended by Act No. 238, Pub. Acts 1911, by the trustees of Kalamazoo College, one of the legatees.
    2. Same — Appeal—Interested Party.
    And the right of an educational institution, which received a remainder subject to the life estate of the widow, to take the appeal as a party in interest is undoubted.
    3. Same — Sale of Lands — Probate Court.
    Under Act No 162, Pub. Acts 1911, § 11287, 3 How. Stat. (2d Ed.), (see judicature act, 3 Comp. Laws 1915, § 13987), authorizing the probate court to order a sale of decedent’s real estate or any interest therein on the petition of the executor, when such sale is necessary to preserve the estate or prevent a sacrifice, or is for the best interest of the devisees, if a majority in interest approve the application, a petition to sell lands of a testator, by the terms of whose will, power was given to the executrix to sell at private sale certain real property of the estate, vras properly granted by the probate judge, on petition of the widow and executrix, to whom a life estate was devised by the will, testator leaving to three institutions the remainder in all his real and personal property; and an order on appeal to the circuit court, setting aside such probate decree is reversed on certiorari, and the petition is determined or adjudged to have been filed by the executrix in her official capacity.
    4. Same — Life Estates — Statutes.
    The provisions of 3 Comp. Laws 1915, § 12716, do not exclude executors who are life tenants, nor is the property which can be sold by virtue of the statute of 1911 confined to any particular class so as to exclude life estates.

      Certiorari to Oakland; Smith, J.
    Submitted January 6, 1916.
    (Docket No. 46.)
    Decided June 6, 1916.
    Rehearing denied December 22, 1916.
    Fannie F. Rodgers, executrix of the last will and testament of Daniel S. Rodgers, deceased, petitioned the probate court for license to sell certain real estate. From an order granting the petition, the Kalamazoo College, a beneficiary, appealed to the circuit court. Judgment diminishing the petition. Petitioner brings certiorari.
    Reversed.

      E. E. Hymers, R. D. Heitsch, and C. C. Yerkes, for appellant.

      Corliss, Leete & Moody, for appellee Kalamazoo College.

      John P. Antisdel, for appellee Baptist Home.
   Kuhn, J.

This case is here upon certiorari to review the order and judgment of the circuit court for the county of Oakland upon an appeal from the probate court of said county in the matter of the estate of Daniel S. Rodgers, deceased. Said Rodgers died testate in February, Í913. On September 8,1906, the testator made and published his last will and testament, which, after providing for the payment of his just debts and personal expenses, was as follows:

“Second, I give, devise and bequeath the use of all my estate, both real and personal, to my wife, Fannie F. Rodgers, for the period of her natural life, except, that in the event of my said wife, Fannie F. Rodgers, remarrying after my death, then in that event, all her right and interest in and to every portion of my estate shall be at once terminated and cease and my whole estate shall then be divided and disposed of as hereinafter directed. This bequest and devise of the use of my said property is made in lieu of her dower interest therein.
“Third. On the termination of the above-mentioned estate as devised and bequeathed to my said wife, I will that all my estate, both real and personal, be converted into money and the proceeds thereof divided in the following proportions: One-third to the North-ville Baptist Church Society, of the village of North-ville, Wayne Co., Michigan; one-third to the Kalamazoo Baptist College, of Kalamazoo, Michigan;-one-third to the Baptist Ministers Home at Fenton, Michigan.
“In making the sale of my real estate and personal. property for the purpose of the distribution among the several legatees mentioned in this paragraph numbered third of this my last will and testament I will that my said executor hereinafter named and' appointed for the purpose shall be empowered to sell the same as such executor for such purpose at private or public sale without the order of any court.
“I hereby appoint my wife, Fannie F. Rodgers, as executrix of my estate, during such period as she shall continue to enjoy the devise and bequest herein made for her use and benefit, and on the termination of her rights herein and to my estate, either by her remarriage or in the event of her death, I hereby appoint the Reverend J. S. Boyden, Baptist minister, at Kalamazoo, Michigan, as executor of the residue of my estate and for the purpose of carrying out the provisions of this instrument relative to the distribution thereof. It is my further will that my said wife, during the period that she may act as administratrix of my estate under this instrument may be permitted to do so without giving bonds for the performance of her duties hereunder.
“Lastly, I hereby revoke all former wills by me at any time made.”

This will was duly admitted to probate without contest or objection. The widow made no claim to take' under the statute, but accepted the provisions of the will. There are no children. The inventory shows cash in banks, bank stock, mortgages, and other personal property amounting to about $7,000, and the farm involved in this suit, valued at $11,000, but worth more according to the testimony, the widow herself placing its value at from $12,000 to $14,000. She has, from time to time, been granted an allowance of $25 per week for her support, which now continues at a higher rate.

In the month of July, 1913, the widow presented to the probate court of said county her petition for license to sell said real estate. The petition, after setting forth the amount of property, represented that she was of the age of 60 years; that the care and management of said real estate was beyond her strength, and that the rents and profits obtained therefrom, after the payment of taxes and expenses of operation, were not in proportion to or commensurate with the value of said lands, and that, in her opinion, the proceeds from said farm would not net her more than 3 per cent, of the value thereof; that she believed it to be for the best interests of all the legatees under the said last will that the real estate be sold and the proceeds invested in such manner that a larger income could be obtained. The petition concludes in the following language :

“I further represent that the condition and location of said real estate is such that it cannot be partitioned without great injury to the value thereof, and that no one or more of the owners thereof are able and willing to have more than their respective portions of said real estate set off to them, and pay or secure to the others a proper compensation for what they receive more than their respective shares or portions, and it' is necessary for the best interest of the persons interested in said estate that said real estate be sold for the purpose of distribution or reinvestment.
“I therefore pray that I be authorized, empowered, and licensed to sell at private sale the interest of said estate in said real estate for the purpose of distributing the proceeds of such sale among the persons entitled thereto or for real investment.”

There was filed in the probate court the following instrument, entitled in the probate court for the county of Oakland:

“To the Probate Court for Said County:
“The undersigned, being all the legatees, devisees, beneficiaries, and persons interested in the estate of said deceased, do hereby waive notice of hearing on the within and foregoing petition for license to sell the real estate therein described, and we do hereby consent to the sale of said real estate for the purposes and in the manner as prayed in said petition.
“Rufus M. Través,
“Trustee Fenton Baptist Ministers’ Home.
“Dated July 9, 1913.”

Subsequently, and on the hearing of this petition, the probate court permitted the said petition to be amended without any further notice to the parties interested, by adding the following paragraph immediately before the prayer of said petition:

“That the sale of the said real estate is necessary to preserve the estate of said deceased, and for the purpose of preventing a sacrifice thereof.”

On the 6th day of January, 1914, the probate judge made an order to sell the real estate, which order contains the following recital:

“It appearing to the court after a full hearing on said petition and on examination of the proofs and allegations of the parties interested that it is necessary and for the best interest of the parties interested that the interest of said estate in the real estate hereinafter described be sold for the purpose of preserving the estate and reinvestment;
“And it further appearing from the testimony of two qualified freeholders that the value of the interest of said estate in said real estate is the sum of $12,000, which is hereby determined to be the value thereof:
“It is ordered that said executrix be, and is hereby, authorized, empowered, and licensed to sell at private sale, at the highest price obtainable therefor, not less than the value thereof as hereinbefore determined, the interest of said estate in the following described real estate, to wit: [Here describing the farm in question.]
“It is further ordered that said Fannie F. Rodgers, executrix, before making such sale, give bond in the penal sum of $15,000, as required by law.”

From this order the Kalamazoo Baptist College of Kalamazoo, Mich., one of the legatees, appealed to the circuit court. Among the grounds stated for the appeal were the following:

“(1) For that the probate court of the county of Oakland was without jurisdiction to make the said order for the sale of said real property described in said order. * * *
“ (6) For that it appeared in evidence that said real property is in the possession of the life tenant, and said probate court is not authorized by law to sell the same, but that the circuit court, in chancery, has sole jurisdiction for the sale thereof.
“(7) For that the order of sale is contrary to the provisions of the will of deceased, and contrary to the provisions of section 9 of Act No. 56 of the Public Acts of 1909.”

In the circuit court the matter came on for trial before a jury, and after hearing the proofs and allegations of the parties the action of the court is shown by the following language of the trial court:

“For the purpose of the record, it is held that this court has jurisdiction from the appeal, but that there is no question for the jury by which they can dispose of it absolutely, and I find that it is a matter for this court to dispose of, and the court finds that, instead of its. being a petition to provide additional income for the widow, it is, in effect, a petition to construe this will into something else and destroy its provisions, and place the entire control of the use and extent of all this estate in her hands without any bond. It is therefore dismissed, and I therefore direct it back to the probate court.”

Whereupon the petition to sell said real estate was dismissed. There was a motion for a new trial, which was denied.

(1) In the affidavit in behalf of petitioner for the writ of certiorari it is claimed that the trial court erred in refusing a new trial, and holding that said order of the probate court was appealable.

(2) That, if the circuit court had any jurisdiction in the matter, it was to review the proceedings of the probate court with a view to ascertaining whether there had been any abuse of discretion or not.

(3) That, if the order made by the probate court was appealable, then the testimony taken was such as should have led the circuit court to affirm the order of the probate court.

(4) That, if the order was appealable, the circuit judge overstepped his jurisdiction in the case by making a decision, the essence of which was not set up in the grounds stated in appeal by the appellant.

1. Was the order of the probate court an appealable order? I think this question should be answered in the affirmative. Under the provisions of section 669, 1 Comp. Laws (3 Comp. Laws 1915, § 14145), as amended by Act No. 238, Pub. Acts 1911, it is provided as follows:

“In all cases not specifically prohibited by statute, any person aggrieved by any order, sentence, decree or denial of the judge of probate, may appeal therefrom to the circuit court for the same county, by filing a notice thereof with the judge of probate within twenty days from the date of the act appealed from, giving the reason for such appeal, together with such bond as is required in section eight of this chapter.”

That the Kalamazoo College, being one of the legatees in this will, is such aggrieved person as may take an appeal from an order of the probate court relating to the sale of the real estate iii which it has an interest is, I think, too clear for argument. See In re More’s Estate, 179 Mich. 237-244 (146 N. W. 319); Cole v. Cole’s Estate, 125 Mich. 661 (85 N. W. 113), and cases there cited.

2. It appears that the proceedings were taken under the provisions of Act No. 209, Pub. Acts 1909, as amended by Act No. 162, Pub. Acts 1911 (3 Comp. Laws 1915, § 13987). Section 1 of that act is as follows:

“Real estate of a deceased person, or any interest therein, may be sold upon petition of the executor or administrator under license of the probate court in the following cases:
“1. When it shall appear to the court that the personal estate of a deceased person in the hands of his executor or administrator is insufficient to pay the debts of the deceased and the charges of administering his estate, or whenever it shall appear to the court that it is for the best interest of all persons interested in the estate that his real estate or some part thereof be sold for such purpose in lieu of disposing of the personal estate.
“2. When it shall appear to the court that a sale of such real estate is necessary to preserve the estate or to prevent a sacrifice thereof, or to carry out the provisions of a will.
“3. When a testator shall have given any legacy by will that is effectual to pass or charge real estate, and his personal property is insufficient to pay such legacy, together with his debts and charges of administration.
“4. When a testator shall have given real estate to two or more persons, or when a person shall have died intestate, and it shall appear to the court that it is necessary or will be fo,r the best interests of the persons interested in said real estate as such devisees, legatees or heirs, to sell the same for the purpose of distribution: Provided, That application under this subdivision shall be approved in writing by the persons owning a majority in interest of the real estate proposed to be sold, which approval may be given by the guardians of persons under guardianship.’’

It is the contention of counsel for the Kalamazoo College that the probate court had no jurisdiction to order the sale in this case, and that the circuit court of said county, in chancery, has sole jurisdiction to order the sale of real estate in possession of a life tenant; and it is claimed that this jurisdiction is vested in the chancery court by virtue of Act No. 56, Pub. Acts 1909.

I am of the opinion that the probate court had jurisdiction to make the order of sale here in controversy. Section 11287, 4 How. Stat. (2d Ed.) (3 Comp. Laws 1915, § 13987), authorizes the probate court to order the sale of a decedent’s real estate, or any interest therein, upon petition of the executor, when such a sale is necessary to preserve the estate or prevent a sacrifice, or is for the best interests of the persons interested as devisees; the majority in interest approving the application. If the probate court did not abuse its discretion, that is, if the sale ordered here can be said to have been necessary to preserve the estate, and nothing to the contrary is shown, then the section gave the probate court ample power to order the sale on the petition of this executrix.

I am unable to see how chapter 300, 4 How. Stat. (2d Ed.) (3 Comp. Laws 1915, § 12716), which permits a life tenant to petition the chancery court for a sale of a life estate, in any way conflicts with or impinges upon the power given to the probate court in section 11287 when the executor petitions. The latter section does not exclude executors who are also life tenants, nor is there any reason why it should be construed to do so. Neither is the property which can be sold by .virtue of the statute confined to any particular class, and no valid reason can be given why life estates should be exempted from its provisions. Chapter 300 gives the devisee of a life estate a remedy he does not have where he is not executor of the whole estate, but its language does not limit the devisee of a life estate in all cases to the proceeding in the chancery court. The petitioner in this case does not petition as life tenant, but as the executrix of the estate for all the devisees. That the probate court is given no machinery for the reinvestment of the proceeds is no objection. It may at least grant the prayer for a sale and a distribution of the proceeds.

In my opinion, the broad power given the probate court by section 11287 to sell in a proper case on petition of the executor is in no wise nor in any degree impaired by the statute which gives the owner of a life estate who is not the executor under the will the privilege of procuring a sale and a distribution in the chancery court.

Believing that the probate court had jurisdiction, it follows that the order of the circuit court was erroneous, and should be, and is hereby, reversed.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    PEOPLE v. FREDERIGHI.
    Criminal Law — Information—Complaint.
    Intent to sell fruit, or to offer for sale, or to possess the same, in packages that show better quality on the surface than the remainder of the package contains, in violation of the prohibition of Act No. 207, Pub. Acts 1913 (3 Comp. Laws 1915, § 15370), is an essential ingredient of the statutory offense, and a complaint that failed to charge knowledge or intent was insufficient to sustain a conviction.

      Exceptions before sentence from Berrien; Bridgman, J.
    Submitted April 14, 1916.
    (Docket No. 132.)
    Decided June 8, 1916.
    Cesare Frederighi was convicted of selling fruit in violation of Act No. 207, Pub. Acts 1913.
    Reversed and respondent discharged.

      Grant Fellows, Attorney General, and Chester P. O’Hara, Prosecuting Attorney, for the people.

      G. M. Valentine and John J. Sterling, for respondent.
   Kuhn, J.

The respondent is charged with a violation of section 5 of Act No. 207, Pub. Acts 1913 (3 Comp. Laws 1915, § 15369). This act is entitled—

“An act to prevent fraud and deception in the sale of Michigan-grown fresh fruits and vegetables, and to provide penalties for violations of this act.”

The act contains six sections. The first five sections regulate the packing and sale of fruit, and define what acts shall constitute a violation of the law. The complaint upon which this prosecution is based alleges facts which are within section 5, which is in terms as follows:

“No person shall sell or offer, expose or have in his possession for sale, any fresh fruits or vegetables packed in any package in which the faced or shown surface gives a false representation of the contents of such package, and it shall be considered a false representation when more than twenty per cent, of such fresh fruits or vegetables.are substantially smaller in size than, or inferior in grade to, or different in variety from, the faced or shown surface of such package, natural deterioration and decay in transit or storage excepted.”

Section 6, which is the penal section of the statute, reads as follows:

“Every person who, by himself, his agent or employee, knowingly violates any of the provisions _ of this act shall, for each such offense, be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding ten dollars, or by imprisonment in the county jail for a period of not exceeding thirty days, or by both such fine and imprisonment in the discretion of the court.”

The respondent was arrested, tried, and convicted in the justice’s court, and on appeal to the circuit court was again tried and convicted. At the trial in the circuit court his counsel moved that the court direct the jury to render a verdict of not guilty, on the ground that neither the complaint nor the warrant charged or alleged that the respondent had knowingly violated the statute under which the prosecution is brought. Respondent also presented certain requests in writing for instructions to the jury which involved the same question. These were refused by the court. After his conviction respondent moved an arrest of the verdict, assigning four reasons or causes therefor, all of which challenged the sufficiency of the complaint and warrant. This motion was denied. The sole question, therefore, which is properly before us on exceptions before sentence is whether or not the complaint and warrant sufficiently charged an offense under the said provisions of Act No. 207, Pub. Acts 1913.

It is unquestionably the settled rule in this State that where scienter is made an ingredient of the offense, it is necessary to charge and prove it. There is some difficulty in determining, on a reading of this act, exactly what the intention of the legislature was in the use of the word “knowingly” in section 6. Section 5 does not make knowledge a substantive ingredient of the offense. But, in our opinion, all the sections of the statute should be taken together, to determine what-the legislative intent was, and there can be no doubt that it was the intention of the legislature to make the scienter a part of the offense created by this statute.

We are of the opinion that it cannot be said that simply selling the fruit which does not come up to the standard required by the statute necessarily implies that the seller knew of the inferiority. This is not, therefore, one of that class of cases in which it has been held that knowledge need not be averred where it cannot possibly be said that the respondent could have been ignorant of the offense. See People v. Lennox, 106 Mich. 625 (64 N. W. 488). We see no escape from the conclusion that the complaint is fatally defective in that it does not charge one of the essential ingredients of the offense created by the statute; that is, that the respondent knowingly committed the act made illegal thereby. People v. Fitzgerald, 92 Mich. 328 (52 N. W. 726).

The complaint not stating the offense charged by the statute, it follows that the conviction must be reversed and the respondent discharged.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Per Curiam.

text:
    BANCROFT v. BOARD OF REGENTS OF UNIVERSITY OF MICHIGAN.
    Appeal and Error — Demurrer—Judgment—Necessity.
    Want of a final judgment in a personal injury action is fatal to the review of the ease on error and, in the absence of any showing that judgment had been later entered, the writ must be dismissed.

      Error to Washtenaw; Kinne, J.
    Submitted April 4, 1916.
    (Docket No. 4.)
    Decided June 23, 1916.
    Case by Mary Bancroft against the board of regents of the University of Michigan and another for personal injuries. Judgment for defendants sustaining separate demurrers. Plaintiff brings error.
    Writ dismissed.

      Albert E. Sherman, for appellant.

      Cavanaugh & Burke, for appellee.
   Per Curiam.

Plaintiff filed her suit to recover damages for personal injuries which she claims to have incurred and which she avers were occasioned by the negligence of defendants. The defendants demurred to the declaration, and after argument the same was sustained. This was followed by the issuance of a writ of error from this court without any final judgment having been entered in the trial court, and, so far as the record shows, we are not advised that a final judgment has since been entered therein. Under this state of facts the practice will not permit of a review of the case in this court. Green v. Eaton Probate Judge, 40 Mich. 244; Delaney v. Lumber Co., 144 Mich. 351 (108 N. W. 77); Barribeau v. City of Detroit, 146 Mich. 392 (109 N. W. 665); In re Vetter’s Estate, 162 Mich. 109 (127 N. W. 306).

The writ will be dismissed, with costs to appellee.


author: Ostrander, J.

text:
    SCHREWE v. NEW YORK CENTRAL RAILROAD CO.
    Certiorari — Appeal prom Industrial Accident Board — Master and Servant — Workmen’s Compensation.
    Upon certiorari to review proceedings relating to workmen’s compensation before tbe board bas passed on tbe award of an arbitration committee, tbe Supreme Court will not examine into questions arising before tbe com* mittee until they bave been inquired into and passed upon by tbe board on appeal.

    Frances Schrewe presented her claim against the New York Central Railroad Company for compensation for the death of her husband. From an award of an arbitration committee, respondent brings certiorari. On motion to dismiss the writ.
    Submitted June 6, 1916.
    (Calendar No. 27,376.)
    Motion granted June 23, 1916.

      Alexander, Cotter & MacCord, for the motion.

      Angell, Bodman & Turner, contra.

      On tbe question of workmen’s compensation acts, generally, see note L. R. A. 1916A, 409.

   Ostrander, J.

Part 3 of Act No. 10, Public Acts (Extra Session) 1912 (3 Comp. Laws 1915, § 5454 et seq.), is entitled Procedure. If an injured employee and his employer or the indemnitor of the employer agree concerning the compensation to be paid the employee under the act, their agreement, reduced to writing, may be filed with the Industrial Accident Board, and,, if approved, is final and binding. If an agreement is not reached, the procedure is, first, the formation of a committee of arbitration, one member of which shall be a member of the Industrial Accident Board. The committee, having made an investigation and award, files its decision with the Industrial Accident Board, and, “unless a claim for a review is filed by either party within seven days, the decision shall stand as the decision of the Industrial Accident Board.”

If a claim for review is filed, the board shall promptly review the decision of the committee “and such records as may have been kept of its hearings,” hear such additional evidence as the parties wish to submit, “and file its decision therein with the records of such proceedings.” “The findings of fact made by said Industrial Accident Board, acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have'power to review questions of law involved in any final decision or determination of said Industrial Accident Board.” Either party may present to the circuit court of the county in which the accident occurred the approved agreement settling the compensation to be paid, the unappealed from award of the committee or the decision of the Industrial Accident Board upon review, and the court is empowered to enter judgment in accordance therewith without notice.

It appears that, although the writ of certiorari issued in this proceeding is addressed to the Industrial Accident Board, the board has not, in fact, been asked to review the award of the committee. The question presented is whether this court should review, in certiorari proceedings, the unappealed from award of a committee of arbitration or whether a party claiming to. be aggrieved by the action of the committee should first seek a review of the committee action by the Industrial Accident Board.

The proceeding is a special and peculiar one. It may or may not be an adversary proceeding with respect both to the facts and the law. To the Industrial Accident Board is confided, finally, the determination of the facts according to which an award of compensation is made, or is refused. There is involved, in every case, the application of the statute to the determined facts. The decision, whether of the committee or of the board, involves such an application of the statute. It is the decision of the committee which upon seasonable application may be reviewed by the board and, upon such review, corrected, if correction is required. It is questions of law involved in any final decision or determination of the board which may be determined by the court. It is plain, I think, that the act secures to parties claiming to be aggrieved by the decision of a committee, first, an appeal, second, a review of questions of law involved in the decision on appeal. In any event, such a construction of the law is warranted by the terms of the law, and, being warranted, should be adopted because it makes, first, for uniformity and simplicity of procedure, and, second, it prevents setting aside and amending by the court decisions which have, in fact, never received the attention of the body charged with the execution of the law; a body which it is presumed will, upon review, correct the decision complained about.

In my opinion, the motion to dismiss the writ of certiorari should be granted, with costs.

Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Ostrander, J. Bird, J.

text:
    BURKE v. MARYLAND CASUALTY CO.
    Judgment — Conclusiveness—Parties—Insurance—Accident and Indemnity Policy.
    Plaintiff’s indemnity insurance covered injuries accidentally sustained by any employees engaged in decorating and other lines stated. Plaintiff brought an action on the policy, claiming that one of its employees, while working as a painter or decorator on a school building, sustained injuries within the provisions of the policy and recovered a judgment against it. Immediate notice in writing of any accident and of the suit was required by the contract of insurance. It was alleged as a defense to liability on the policy, that the injured workman was not an employee within the meaning of the language of the agreement. In charging the jury on the former afction and trial the court informed the jury that if the defendant employer had charge of preparing the scaffold on which the employee was working when it gave way, and assured plaintiff that it was safe, the jury might find that the relationship of master and servant existed between the parties, that if the platform fell because a rope used in sustaining it had become frayed in use by friction against the wall, as plaintiff contended, defendant in the cause might be found liable for negligence. Held, that the prior judgment was not conclusive on the insurer which was not a formal party to the proceeding, though it undertook the defense: defendant corporation having the right to show that the relationship of master and servant did not exist. Bird, J., dissenting.
    Error to Muskegon; Sullivan, J.
    Submitted April 13, 1915.
    (Docket No. 60.)
    Decided July 21, 1916.
    Assumpsit by William Burke, William ED Smith, and Neis P. Nelson, copartners as Burke, Smith & Nelson, against the Maryland Casualty Company on a policy of insurance. Judgment for plaintiffs on a verdict directed by the court. Defendant brings error.
    Reversed.

      Stevens T. Mason, for appellant.

      Turner & Turner, for appellees.
   Ostrander, J.

In my opinion, Mr. Justice Bird has not sufficiently stated the issues, and has not discussed, at all one of the principal contentions of appellant.

1. The contract which is the measure of plaintiffs’ rights indemnifies plaintiffs—

“against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any employee' of the assured while engaged in the occupation and at the places mentioned in the schedule below, provided,” etc.

It is alleged in plaintiffs’ declaration that one Reuben J. Ritter was an employee of plaintiffs, and was accidentally injured while performing work as a painter or decorator upon the Dort ‘school building in Flint, a building which plaintiffs were erecting, that said Ritter sued plaintiffs, defendant undertook the defense of said suit, and that in that suit said Ritter recovered' a judgment against plaintiffs, which they have paid. With its plea defendant gave notice that it would insist that at the time of the injury to said Ritter there was no consideration for an indemnity agreement between the parties with respect to accidents to said Ritter, and that plaintiffs did not comply with the requirement of the policy that immediate written notice of accident be given. The kind or kinds of work covered by the policy were carpenters, masons, and laborers, decorating and grading, to which stipulations of the contract may perhaps be referred the allegation in the declaration that Ritter was performing work “as a painter or decorator.” The policy sued upon requires that:

“Immediate written notice of any accident and of any suit resulting therefrom, with every summons or other process, must be forwarded to the home office of the company, or to its authorized representative.”

It. is a contention of defendant that Ritter was not an employee of plaintiffs when he was injured, engaged in any .work covered by the policy, that immediate notice of the accident was not furnished, and that on account of peculiar circumstances the failure to furnish the notice was prejudicial to its interests. The complaint made in this court is that defendant was precluded from making these defenses by rulings of the trial court to which it duly, excepted, and upon which error is assigned. It is admitted that written notice of the accident was not given to defendant, nor any notice, until Ritter began his suit. Enough appears in the record to warrant the statement that the reason notice of the accident was not given was that plaintiffs did not suppose that Ritter was their employee, or that the work he was doing when injured was within the terms of the policy.

It is plaintiffs’ claim that in the suit of Ritter against themselves it was established that he was their employee, and that the determination binds defendant. Upon this subject the trial court had before it and examined the declaration filed by Ritter, and the charge, or a part of the charge, of the court given upon the trial of Ritter’s case. But the court refused to receive or to consider the testimony given at the trial of Ritter’s case, even the testimony given by plaintiffs, or by some of them, to the effect, it is claimed, that Ritter was not their employee when he was injured. Broadly, the contention appears to be that plaintiffs defended the Ritter suit upon the ground that the relation of master and servant did not exist, and upon the further ground that they were not, on account of their conduct, or of the conduct of any of them, responsible for the injury, and it is contended that the facts, if presented, would show that it was because of some claimed actual conduct, or negligence, of plaintiffs, or of one of them, that a verdict against them in Ritter’s favor was returned, and that liability to respond as masters for the injury of a servant was not made out. The record does show that Ritter was not on plaintiffs’ pay roll, and that he came to the job as an employee of a subcontractor. It cannot be doubted, I think, that defendant had the right to show, if it could, that when Ritter was injured he was not an employee of plaintiffs, within the meaning of the policy. The question is whether the trial court was right in ruling that, from the declaration in Ritter’s case and the charge of the court therein and such colloquy as occurred at the trial, it is conclusively established that he was such employee, and that the verdict and judgment rested upon such a relation. The files in the Ritter case were offered in evidence by plaintiffs. The declaration recites, rather than alleges, that Ritter “was employee of said defendant.” The duty of defendants (plaintiffs in the case at bar) is alleged, in that declaration, in one place, as follows:

“That at the time of the grievance hereinafter set forth, the defendants, through themselves, their agents and servants, were engaged in cleaning the brick of said building, and that it became and was proper to use a swinging scaffold, attached by hooks and ropes to the cornice of said building to sustain the workmen while performing the work of cleaning the brick, and in the regular and prudent operation of such scaffold it was then and there necessary, and became the duty of the defendants, to see that the scaffold and ropes, hooks, pulleys, and other attachments sustaining the same should be fit and properly adjusted to bear the weight of the men placed thereon for the purpose of cleaning the said brick.” x

And the cause of the accident as follows:

“The ropes sustaining said scaffold upon which plaintiff was at work broke by reason of and through the gross, wanton, and wilful negligence of said defendants, and precipitated plaintiff to the ground,” etc.

In another place the allegation is:

“Plaintiff alleges that the defendants, while so engaged in building and finishing said school building, and while engaged in cleaning the brick walls thereof, not regarding their duty to furnish a safe and secure place upon which the plaintiff could perform his duties, conducted themselves' so carelessly, negligently, and unskillfully that by and through the carelessness, negligence, unskillfulness, and default in not furnishing strong ropes and proper appliances and in adjusting the same in a proper manner and using due care in regulating and securing the same, the plaintiff was thrown to the ground by the breaking of the ropes sustaining said scaffold.”

The portions of the charge of the court in the Ritter case, examined by the court in the instant case, read, in part and so far as material here, as follows:

“Now, for the purpose of .this case, if you should find that the evidence preponderated in favor of the proposition that Mr. Ritter — not Mr. Ritter, but Mr. Burke, one of the defendants in this case — was present out there at the time that the scaffold was being prepared, took part in it himself, said to Mr. Ritter that he wanted it done his way, in substance, that he was paying him his wages, and assured the two men, Mr. Ritter and the other man, that the scaffold was perfectly safe, you find that the evidence preponderates in favor of those propositions that Mr. Ritter testified to, then you would be warranted in finding that the relation of master and servant did exist on that occasion between this plaintiff and these defendants, because if Mr. Burke made those statements that Ritter was working for him, he would be estopped from claiming he was not responsible as a master. * * *
“Now, first, the plaintiff claims that he was injured on that occasion by the falling of the scaffold, and that the falling of the scaffold was occasioned by one of two causes; he does not claim to be able to tell you which, of those two causes, but he claims that it is one of two causes. His claim is that these appliances had been used before he went onto the job, for the purpose of washing down with acid the building; that is, one of the claims is that the rope became weakened, and on this occasion fell by reason of its having been weakened by the application of acid to it, for which he was in no way responsible. Or, second, he claims that it fell by reason of the act of one of the defendants in making an adjustment of the scaffold itself, an adjustment of the stirrup ropes which supported the scaffold on the occasion just before the plaintiff claims he was injured. His claim in that respect is that the rope was pushed over against the wall, which has been shown to you here;, so that in drawing the scaffold up the face of the building he claimed that the wheel would be pressed against the building and would grind against the rope as the ‘scaffold was drawn upward, and in that way weaken the rope, so that by reason of that weakness' it fell. On the other hand, the claim of the defendant is that neither one of those two reasons is the correct one. Their claim is that the rope broke by reason of the careless application of the plaintiff himself and the man who was working with him on the very occasion when, they pulled up that scaffold and did that first piece of work just previous to the falling pf the scaffold.”

In my opinion, it does not conclusively appear that Ritter was an employee of plaintiffs within the meaning of the policy sued upon, and defendant should have been permitted to show that, in fact, the verdict and judgment rendered in favor of Ritter was, or might have been, based upon relations other than those of master and servant, within the policy meaning. If this could be shown, then plaintiffs could recover- only by maintaining, in this suit, that Ritter was in fact an employee of plaintiffs within the meaning of the policy.

2. I do not regard it as necessary or desirable to discuss the effect of the failure of plaintiffs to immediately notify defendant that a man had been injured, or whether defendant waived the- stipulation for notice by its conduct. In developing its defense as herein indicated, more light should be afforded upon this subject. The record shows, beyond question, that defendant expressly refused to waive any of its rights under the contract, and that plaintiffs in this action were so informed and so understood.

A reversal of the judgment and new trial is required, with costs to appellant.

Stone, C. J., and Kuhn, Moore, Steere, and Brooke, JJ., concurred with Ostrander, J.

Bird, J.

(dissenting). Plaintiffs are building contractors, While erecting a school building in the city of Flint, in 1911, they carried a policy in the defendant company, indemnifying them against loss on account of injury to their employees by accident. On July 5th, while Reuben Ritter, one of the employees, was engaged in cleaning the walls, he fell from the scaffold upon which he was standing and sustained an injury. On September 21st, he commenced suit against plaintiffs, claiming that his fall was due to the negligence of plaintiffs in failing to furnish him a safe place in which to work. Plaintiffs transmitted the summons to Stevens- T. Mason, who represented the defendant as counsel in this State. Mr. Mason, upon receiving it, caused defendant’s appearance to be entered in the cause, and later filed a plea therein. He was in attendance upon the trial and participated in it, although plaintiffs had their own counsel. The trial resulted in a judgment for Ritter of $900. Plaintiffs’ attorneys thereupon secured a stay of proceedings, so that an appeal to this court could be taken if desired by defendant, and Mr. Mason was ■ notified of this fact, and plaintiffs demanded that defendant pay the judgment in accordance with the terms of this policy, or effect an appeal. Defendant., refused to do either, whereupon plaintiffs paid the judgment against them, and instituted this suit to recover the amount. They recovered a verdict by direction of the court. Several assignments of error are relied upon in the brief, but we understand the number was reduced on oral argument to the following:

1. Did the fact that the defendant permitted its attorney to assist in the trial of the case of Ritter v. Burke, Smith & Nelson operate as a waiver or an estoppel?

3. Was the verdict in the case of Ritter v. Burke et al., binding upon the defendant herein?

6. Did the failure to give immediate notice of the Ritter accident relieve the defendant of liability under the policy?

1. The question as to' how far the judgment in the Ritter case is binding on the defendant is the principal question to be determined. The general rule with reference to the conclusiveness of a judgment on indemnitors is stated to be that:

“One who is notified of the pendency of an action and is given an opportunity to defend is concluded as to all questions determined therein which are material to a recovery against him in an action for indemnity brought by defendant in the original suit.” 22 Cyc. p. 106.

In Littleton v. Richardson, 34 N. H. 179 (66 Am. Dec. 759), the rule is stated as follows:

“The record of a verdict and judgment is always admissible to prove the fact that such judgment was rendered, or such verdict returned, in any case where the fact of such verdict or judgment, or the nature or amount of such judgment becomes material. * * * For any other purpose it is not evidence against a stranger, * * * but when a person is responsible over to another, either by operation of law or by express contract, * * * and he is duly notified of the pendency of the suit and requested to take upon him the defense of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he was the real and nominal party upon the record. In every such case, if due notice is given to such person,, the judgment, if obtained without fraud or collusion, * * * will be conclusive against him, whether he has appeared or not, * * * of every fact established by it.”

See, also, Village of Port Jarvis v. First Nat. Bank, 96 N. Y. 550; City of Portland v. Richardson, 54 Me. 46 (89 Am. Dec. 720); Mayor, etc., of New York v. Brady, 151 N. Y. 611 (45 N. E. 1122); City of Lansing v. Railroad Co., 129 Mich. 403 (89 N. W. 54). The stipulation of facts in the present case shows beyond question that defendant had notice of the Ritter suit, and that its attorneys perfected the pleadings and was present and participated in the trial. This would make the judgment in the Ritter case conclusive upon it as to all material issues therein involved.

It is claimed, however, by defendant’s counsel that the defendant is saved from the operation of this general rule by the fact that when he was notified that Ritter had commenced suit, defendant’s participation thereafter was with the distinct understanding that it should waive none of its defenses of liability to the plaintiffs. The fact that defendant made this reservation in the Ritter case will not exempt it from the effect of notice of that suit. The reservation had .the effect simply of reserving to it the right to contest its liability. This precise situation occurred in the case of City of Lansing v. Railroad Co., supra, and the same claim was made, but the court there said in response to this contention that:

“The evidence was sufficient to charge the defendants with notice of the existence of the suit against the city. Robbins v. City of Chicago, 4 Wall. 657. The stipulation between the attorneys that the appearance of the attorney for the defendants should not bind them was not intended to relieve from the effect of the notice of the existence of the suit and the opportunity to appear. The stipulation meant no more than it should not prevent the railroad companies from raising any defense they had to the suit by the city against them upon any judgment that might be rendered against the city.”

We are of the opinion that the Ritter judgment was conclusive against the defendant in this suit as to all the material issues in the former one.

6. Did the failure to give immediate notice of the Ritter accident relieve the defendant of liability under the policy? The defendant sought to avoid liability under its contract by showing that plaintiffs did not comply with the terms of it in giving immediate notice to defendant of the accident. This question \yas not an issue in the Ritter case, and therefore was open as a defense in the present case. The accident occurred on July 5th¿ and the first notice defendant received was on September 21st. In fact, that was the first notice that plaintiffs had that any claim would be made against them. At the time defendant received the summons it made no objection on this account, but its counsel suggested that the blank form for giving notice thereof should be filled out as a matter of form, so that he might have it among his files in the case, and no objection was raised upon this ground until after judgment was rendered in the Ritter case. The failure to raise the question at that time and the subsequent participation in the trial and the perfection of the pleadings amounted to a waiver by defendant of plaintiffs’ failure to give immediate notice of the accident. We think the action of the trial court in directing a verdict for the plaintiffs was proper, and the judgment should be affirmed.

The late Justice McAlvay took no part in this decision.


author: Bird, J.

text:
    PEOPLE v. BLAIR.
    1. Constitutional Law — Physicians and Surgeons — Criminal Law.
    Respondent, a duly licensed physician and surgeon, caused to be inserted in the Jackson Patriot, a newspaper of the city of Jackson, an advertisement that he would be in the city on certain days and would extract teeth for a consideration. It was stipulated on the trial of a prosecution against him that the pulling of teeth was the practice of dentistry and minor surgery. Upon the objection that the amendment of Act No. 183, Pub. Acts 1913, to Act No. 338, Pub. Acts 1907, under which he was prosecuted, was not covered by the original' title, held, that the title of the statute which prohibited any qualified physician or surgeon not registered thereunder from extracting teeth except where the patient had been previously under treatment for some other ailment except, etc., was within the title of the original enactment, which reads as follows: “An act to provide for the examination, regulation, licensing, and registration of persons engaged in the practice' of dentistry, and for the punishment of offenders against this act.”

    2 Same — Regulation—Police Power.
    It was within the province of the legislature to regulate the practice of medicine and dentistry, as questions affecting the public health are subject to the police power of the State.
    3. Same — Surgery.

      Held, also, that respondent had no right to advertise the dental practice and was not protected by his profession from the penal provisions; nor was the right inferable because the medical statute was passed after the dental regulation.

      Exceptions before sentence from Jackson; Parkinson, J.
    Submitted October 28, 1915.
    (Docket No. 109.)
    Decided July 21, 1916.
    Marion E. Blair was convicted of the illegal practice of dentistry.
    Affirmed.

      Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.

      John F. Henigan, for respondent.

      As to effect of license to engage in practice of profession or occupation as creating a vested right to continue in same, see note in 8 L. R. A. (N. S.) 1272.

   Bird, J.

An information was filed in the Jackson circuit court, charging defendant with a violation of Act No. 338 of the Public Acts of 1907, as amended by Act No. 183 of the Public Acts of 1913 (section 6748 et seq., 2 Comp. Laws 1915); the same having reference to the practice of dentistry. The facts were stipulated by counsel, and a jury found respondent guilty by advice of the trial court. The case is here on exceptions before sentence.

The conceded case appears to be, in substance: That respondent was a duly licensed physician and surgeon. That he caused to be inserted in the Jackson Patriot, a newspaper published and circulated in the city of Jackson, an advertisement that he would be in that city on certain days, and would extract teeth for a consideration. It was further stipulated that the pulling of teeth was the practice of dentistry, and was also minor surgery. The section of the act material to the controversy is:

“It shall be unlawful for any legally qualified physician or surgeon, not registered and licensed under the provisions of this act, to extract teeth, except in cases where the person or persons whose teeth or tooth is or are to be extracted, shall have been, previously to such extraction br operation, under treatment by such physician or surgeon for some other ailment or disease, and then only when such extraction or operation shall be deemed necessary by such physician or surgeon in order to preserve the health or life of his patient; provided, however, that this section shall in no way interfere with the regular licensed physician or surgeon in the performance of general surgery, or extracting or treating teeth in emergency cases, in order to relieve temporarily the health or discomfort of a patient.
“It shall be unlawful for any legally qualified physician or surgeon, not registered or licensed under the provisions of this act, to advertise or permit to be done, orally or by sign, token, card, circular, handbill, newspaper, or other medium of advertisement, that he can or will attempt to perform dental operations of any kind, extract teeth, treat disease or lesions of the human teeth or jaws, or replace lost teeth by artificial ones, or attempt to correct malposition thereof, either in or without a building, or who shall, for a fee, salary, or other reward, paid or to be paid either to himself or to another person, perform dental operations of any kind, treat diseases or lesions of the human teeth or jaws, or replace lost teeth by artificial ones, or attempt to correct the malposition thereof.” Act No. 183, Pub. Act 1913, § 7 (section 6754, 2 Comp. Laws 1915).

1. The defendant admits the facts alleged in the information, but denies the prosecutor’s conclusion of law that he is guilty of the offense charged. He bases his contention on several propositions, one of which is that the law is unconstitutional for the reason that the title to Act No. 338 of the Public Acts of 1907 is not broad enough to admit of the amendment of 1913. The amendment of 1913 was made under the original title without change. The title reads;

“An act to amend sections one, two, three, four, five, seven, eight and nine of act number three hundred thirty-eight of the Public Acts of nineteen hundred seven, entitled ‘An act to provide for the examination, regulation, licensing and registration of persons engaged in the practice of dentistry, and for the punishment of offenders against this act, and to repeal all acts and parts of acts in conflict herewith.’ ”

The argument is made that the original act permitted physicians and surgeons to practice dentistry, and that, in order to take, away that right by amendment, the title should have given notice of it. The title of the act indicates that all persons are subject to the provisions of the act. A slight exception, however, is made in favor of physicians and surgeons. If any objection can be urged on this account, it is because the title is too broad, and gives notice of too much, and this has been held not a fatal defect if notice is given in the title of what the act actually contains. Jasnowski v. Judge of Recorder’s Court, ante, 139 (158 N. W. 229), and cases.

The act as amended is more nearly in accord with the title than was the original act. The title fairly discloses the subject-matter of the act as amended, and leaves little room for any one to be misled or surprised as to the contents of the act. We think it fully meets the constitutional requirement.

. 2. Respondent contends that he had the right to extract teeth and to advertise that he would do so, under his license as a physician and surgeon; that as he had a right to perform minor surgery by virtue of his medical certificate, and as it is conceded that the extracting of teeth is minor surgery, he therefore asserts that he is not guilty of the offense charged. The difficulty with respondent’s position is that he assumes that the right he once enjoyed as a physician and surgeon to extract teeth cannot be taken away from him by the legislature without invading his constitutional right. The right of the legislature to regulate the practice of medicine and dentistry is beyond controversy. Questions affecting the public health, safety, and morals of the people, are subject to regulation by the legislature under the police 'power of the State. This right as applied to the practice of pharmacy and medicine has been so fully considered by this court in People v. Moorman, 86 Mich. 434 (49 N. W. 263); People v. Reetz, 127 Mich. 88 (86 N. W. 396); and in Locke v. Ionia, Circuit Judge, 184 Mich. 535 (151 N. W. 623), it is unnecessary to again discuss it here.

The legislature has indicated an intention of making the practice of medicine and dentistry two distinct professions by prescribing the conditions and qualifications under which one may practice them. It has made all persons subject to the dental act save physicians and surgeons, for which it created some exceptions. It has stated in express language in the exceptions what physicians and surgeons may do, and therefore we must decline to read into the act any implied exceptions in their favor. As the right to practice dentistry and to advertise to do so does not come within the exceptions, the respondent is not thereby protected from the penal provisions of the act. For an instructive case which deals with the precise question on a statute very similar in its terms, see State v. Taylor, 106 Minn. 218 (118 N. W. 1012).

3. The final contention is that, as the medical act was passed 12 days after the passage of the dental act at the session of 1913, it should be construed as amending by implication the dental act. We cannot agree with this contention. Such a construction would be opposed to the trend of legislation. As we have, before said, the several acts heretofore passed by the legislature regulating the practice of medicine and dentistry have indicated its intention of separating these professions and making them two distinct professions. By the medical act the legislature has conferred in( general terms the right upon physicians and surgeons to practice surgery; but by the use of particular words in the dental act it has indicated its intention of restricting the scope of that general right where it overlaps into the field of dental surgery, and therefore we must hold that physicians and surgeons have no right to practice dentistry except as permitted by the provisions of the act. We think this is a reasonable construction of the legislation and is consistent with the obvious policy of the legislature to make the practice of dentistry a distinct profession.

The exceptions are overruled, and the judgment of conviction is affirmed.

Stone, C. 'J., and Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    WOODARD v. WALKER.
    1. Specific Performance — Oral Agreement — Evidence.
    Specific performance of an oral agreement to convey defendant’s farm to complainant in consideration of services, etc., for which complainant received no compensation, may be granted though he had signed a written contract to buy the farm, never enforced by the other party. While it was competent to show that the written agreement was not to be given any force, the defense should be very convincing before it could succeed.
    2. Same — Witnesses.
    It was not a complete excuse for the absence from the stand of the defendant that he was eighty years of age, and was too nervous, and any doubts would be resolved in favor of the complainant arising from such failure to explain disputed claims.
    Appeal from Livingston; Miner, J.
    Submitted October 8, 1915.
    (Docket No. 32.)
    Decided July 21, 1915.
    Rehearing denied September 27, 1916.
    Bill by Henry Woodard against Thomas Walker for the specific performance of a land contract and to enjoin the prosecution of a suit at law. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Louis E. Howlett and W. P. Van Winkle & Son, for complainant.

      Francis J. Shields and Shields & Silsbee, for defendant.
   Bird, J.

Complainant filed his bill praying for specific enforcement of an oral contract to convey lands in Livingston county, described as the W. % of the N. E. 14 and the N. % of the N. E. % of the N. E. % of section 29, in the township of Oeeola, on the theory that the contract had been executed. After a hearing the chancellor declined to grant complainant any relief, and dismissed his bill.

The basis of complainant’s claim is that, when a young boy, 12 or 13 years of age, he went to live with the defendant, who at that time resided on a farm. He alleges as a matter of belief: That his guardian made a contract with the defendant by which he, the complainant, was to remain with the defendant, work for him on the farm, attend school four months each year up to the time he was 21 years of age, at which time he was to receive from the defendant the sum of $300. That he remained and worked for defendant until he was 25 or 26 years of age, and until he was married, save one season he worked for a neighbor. That before and after his marriage he was treated as a member of defendant’s family. He attended family gatherings, contributed to presents given defendant by the children, his own children were given presents by defendant, and at defendant’s suggestion he contributed $100, the same as the other children, toward the erection of a monument on the family lot in the cemetery. That after he was married he worked on farms as a tenant, until he and his wife purchased whát was known as the Stearns farm, located some distance from defendant, for a consideration of $3,200. That subsequently and some time the latter part of the year 1888, while complainant was living .upon the Stearns farm, defendant and his wife came to visit them, remaining overnight. That defendant informed him that he had obligations against the Kirk farm, and would purchase it for him if he would come and live upon it. When complainant objected because he had purchased the farm on which he was living, the defendant urged him to sell it. Later, when defendant succeeded in getting the Kirk farm, he came to visit complainant again, and told him that he had purchased the farm for him; that he felt under obligation to him, ■ and said to him, “You can have a deed of it any time you ask for it, if it ain’t in 10 years.” In response to defendant’s wishes complainant and his wife sold their farm. That defendant came and assisted them in settling on the Kirk farm, and said to complainant that the place was his, and he wanted him “to remain there until he was drawn away.” Defendant gave as a reason why he desired complainant to go upon the Kirk farm was that he wanted him near by where he could help him in his farm work. Following this, for 23 years the complainant assisted the defendant more' or less with his farm work, and received nothing, as he claims, therefor. He further claims that he never received the $300 which was due him when he became 21 years of age, and that he never received anything for his work from the time he was 21 up to the time he was mar/ied. That soon after the complainant moved onto said farm, defendant suggested to him that he would like to have him sign a paper which Mr. Pettibone, a lawyer at Howell, had prepared, for the reason that he had taken a similar paper from his own children when he had furnished them farms. In pursuanee of the request, the defendant went to Mr. Pettibone’s office and signed said paper, as he alleges, without having read it; that he did not care what was in the paper, because he fully trusted the defendant to do as he promised. The paper is a land contract which agrees to convey the land upon a consideration of $5,000, and is in the usual form, save a chattel mortgage clause, creating a lien upon complainant’s personal property. Complainant asserts that the defendant, during the 23 years, never asked him to make any payment thereon, and he, on the other hand, never asked pay for his labor. That in the year 1911, the defendant being somewhat enfeebled by age, being at that time upwards of 80 years of age, his son Judd took charge of his matters, with whom this complainant had trouble about the sale of some gravel sold from said premises, each insisting that the consideration should be paid to him. Subsequently proceedings were commenced before a commissioner to eject complainant from the premises, and he then filed this bill to enjoin that proceeding at law, and also for the enforcement of the oral agreement.

The defendant relies upon the written contract, and insists that it should prevail instead of the alleged oral agreement. The complainant does not seek to vary the terms of the written contract, but insists that it was never intended that the written agreement should have any force. That in substance it was executed to avoid jealousy on the part of defendant’s own children, and thereby to avoid trouble to himself. Inasmuch as the contest is between the original parties to the written contract, this defense is permissible under the law. Church v. Case, 110 Mich. 621 (68 N. W. 424), and cases cited. But such defense should be very convincing before it is allowed to succeed.

Complainant and his wife both testify to the oral agreement. Both testify to the fact that the defendant and Ms wife urged them to sell the Stearns farm and come to live on the Kirk farm. In the main their story is a reasonable one. In corroboration of their story, they show by neighbors and acquaintances of the defendant statements which he made with reference to giving the farm to them. On one occasion the defendant stated to a neighbor whose land joined the land in question, and who was desirous of forcing a new line fence, that complainant owned the land, and that he would have to deal with him. To other neighbors he said that he had bought the Kirk farm for Henry, and wanted him to move onto it. To another he stated that he had given to a poor but worthy man a farm (evidently meaning the complainant). In making a defense to the claim of his second wife for alimony, he stated:

“The defendant, answering, admits that he is the owner of a large number of acres of land; that the title to the same is ostensibly and apparently in his name, but the whole amount of said acreage is not near the acreage named in the petition, and as to what defendant does own of said lands are subject to agreements and claims of each of his children by a former wife, so that the larger portion of the land that is in defendant’s name is not his own, and is not controlled by him.”

Some of the queries which naturally come to one reading the record in this case are:

1. Tested by the selfishness of the average man, would the complainant have labored as he did for defendant each year for 23 years without compensation, and without having kept any account of it, unless he had done it in pursuance of the arrangement which he claims?

2. If the old gentleman was as fond of Henry as the record forces us to believe he was, would he have deliberately sold to Henry a farm for $5,000 which, according to the testimony of farmers in that vicinity, was not worth to exceed $3,000 or $3,200 in 1888 ?

3. If the defendant had intended that the written agreement should be binding between them, would he not have demanded some payment thereon within 23 years, and would he have allowed payments to expire by the statute of limitations, without even asking for them?

4. Is there any significance in the fact that during the 23 years in which the old gentleman managed his own affairs the complainant was not disturbed in his possession, but as soon as his son Judd began to manage his affairs the litigation began?

5. In view of the fact that he had similar agreements with some ot his children who were living upon lands which he owned, and in view of the fact that he treated the complainant as one of the family, did he not intend to do the same by him?

. These queries could all have been satisfactorily answered by Mr. Walker, had he chose to be a witness in his own behalf. Ordinarily we are called upon to deal with these questions after the party who knows the most about them is dead, and then lawyers and the courts do the best they can to determine where the truth lies, but this is an exception. Mr. Walker was alive and living in the city of Howell where this hearing was had. He owed it to the court, to himself, and to all concerned to say whether he made the oral agreement in dispute. True, the excuse made for his absence was that he was too nervous, and that it would endanger his health to be a witness. This excuse is hardly satisfactory. Notwithstanding the fact that he was nervous, an opportune time might have been selected and his testimony taken at his own home. Under such circumstances, great consideration is usually shown a feeble witness by court and counsel. Had that been done, he could' have made clear matters which are now in doubt. Not having done so, I think the doubts should be resolved in the complainant’s favor, and a decree should be made, enjoining the proceedings at law and directing the defendant to make a conveyance of the premises to the complainant. Complainant, will recover his costs.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    PRINCE v. DETROIT UNITED RAILWAY.
    1. Steeet Railways — Personal Injuries — Collision- — -Negligence.
    Where plaintiff and her husband were riding as guests in a motor car, and the driver attempted to cross the street car tracks at a street intersection, having a clear view except for a car which had passed him from behind, and which obscured another approaching from the opposite direction, and the driver could see over one hundred feet, the car striking the rear wheel as the automobile was about to clear the track, evidence that the car was running in excess of 30 miles per hour and could have been stopped in 50 or 60 feet, that the car was exceeding the speed limit fixed by a city ordinance and no apparent decrease in its speed occurred, presented a question of fact as to the negligence of the servants of defendant whose evidence tended to contradict that of plaintiff.

      2. Same — Contributory Negligence.
    The fact that the driver observed the car which struck him about 50 feet away when he tried to cross did not necessarily show contributory negligence, under testimony in his behalf that he had good reason to think he could cross in safety.
    Error to Wayne; Van Zile, J.
    Submitted October 21, 1916.
    (Docket No. 176.)
    Decided July 21, 1916.
    Rehearing denied September 27, 1916.
    Case by Emma Prince against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and A. B. Hall, for appellant.

      Clarke, Lockwood, Bryant & Klein, for appellee.

        As to liability of street car company for operating street car at speed in excess of that prescribed by ordinance, as negligence or evidence of negligence, see note in 8 L. R. A. (N. S.) 1093. And as to duty and care of operator of automobile when near street car, see note in 38 L. R. A. (N. S.) 493.

   Bird, J.

Plaintiff and her husband were residents of Oxford. On Sunday morning, July 27, 1915, they left Oxford as guests of George Brokenshaw and his wife, for an automobile ride to Detroit and Belle Isle Park. Mr. Brokenshaw drove the machine. They entered the city from the north, and proceeded down Woodward avenue, intending to leave it and turn east on Piquette avenue. When they reached Piquette avenue, the driver made observations, but saw nothing he thought would interfere, and so proceeded to cross defendant’s double tracks. Before clearing the east track, the rear part of his automobile was struck with great force by a north-bound car, forcing it up against the east Woodward avenue curb, thereby throwing plaintiff out.and injuring her. The negligence of which the plaintiff complains was excessive speed and reckless operation of the car. The questions raised by defendant relate to its negligence and the contributory negligence of the plaintiff.

1. The negligence of the defendant. Defendant insists that its negligence was not established. Plaintiff’s proofs bearing on this question tend to show that the street car was being operated at the rate of 80 miles an hour; that the motorman could have observed the automobile for nearly 100 feet before the collision took place; that no effort was made upon his part to stop the car, nor slacken its speed before it reached Piquette avenue, although it was shown that it could have been stopped within 50 or 60 feet. It further appeared that the operation of the car at the rate of 30 miles an hour was not only unsafe in that locality on account of the density of traffic, but was in violation of the city ordinance. A part of plaintiff’s testimony was in dispute, but the showing was such that it presented a question for the consideration of a jury as to whether the car was being operated at an excessive rate of speed, and whether the motorman did. what he reasonably might have done to avert the collision. Bush v. Railway, 113 Mich. 513 (71 N. W. 851); Purulewski v. Railway, 181 Mich. 133 (147 N. W. 596); Millette v. Railway, 186 Mich. 634 (153 N. W. 10); Rahaley v. Railway, 177 Mich. 96 (142 N. W. 1099).

2. Plaintiff’s contributory negligence. The situation that the driver was in when at the point of turning onto Piquette avenue appears to be that he was on the west side of Woodward avenue, headed south; that he was about to cross defendant’s double tracks. He looked in both directions, but saw no car, save a southbound car, which had passed him a few moments before. A north-bound car was approaching, but was obscured from view by the south-bound car. While he was proceeding at the rate of from 8 to 10 miles an hour across the west track, he observed the northbound car about 75 feet distant. He kept going as he thought he could clear it. After looking north and east, he glanced to the south again just as the automobile was entering on the east track. The street car was then not more than 50 feet away. He hastened the speed of his automobile, still thinking he could cross in safety, but before he could do so his car was struck and the injury done. At the moment he turned his car toward the east, his line of vision extended over 100 feet south on the east track, and no car was in sight. It cannot be said as a matter of law that he was guilty of contributory negligence in going onto the west track under such circumstances. The car was 50 feet away when he entered on the east track. At that moment he thought he could cross before the car reached him. He had a right to expect that the motorman would use reasonable care and slow down if it became necessary to enable him to cross in safety. Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and cases.' For concluding to go across the east track, we cannot say as a matter of law that he was guilty of contributory negligence, considering the situation he was in. His judgment was that he could cross in safety, and there is room for believing that his judgment would have been verified had the motorman done what the driver of the automobile had a right to expect he would do under the circumstances. This is made probable by the fact that the automobile was struck near the center of the rear wheel. A moment more and the automobile would have cleared. Under the testimony presented, the negligence of the driver of the automobile was obviously a question of fact and not of law, and the trial court was not in error in submitting it to the jury. Putnam v. Railway, 164 Mich. 342 (129 N. W. 860).

The judgment is affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Bird, J. Bird, J.

text:
    JUDD v. JUDD.
    1. Equity — Notice—Taking Proofs in Open Court.
    Where complainant failed to give the statutory notice to take proofs in open court, the court might order the same upon his own initiative, under 1 Comp. Laws, § 211 (3 Comp. Laws 1915, § 12034), and Circuit Court Rule 25.
    2. Divorce — Property Rights — Settlement.
    While ordinarily property rights are adjusted in divorce proceedings, where this is not done they may be settled later in a separate proceeding.
    3. Same — Laches.
    And where no change in'the situation of the parties called for an application of the doctrine of laches, complainant was not barred from obtaining a settlement in a proceeding brought two years later.
    4. Trusts — Conveyances—Husband and Wife.
    In proceedings for the cancellation of a conveyance from a husband to his wife, if the conveyance was voluntary • the husband was not entitled to relief even though a parol trust was annexed. 3 Comp. Laws, § 8835 (3 Comp. Laws 1915, § 11571).
    5. Same — Fraud—Equity;—Divorce.
    But where the record shows that at the time the conveyance was made complainant was deceived and misled by defendant into the belief that she intended to continue in the marriage relation with him, while in fact she intended to secure a divorce as soon as convenient, which she later did, it was a fraud upon him and he was entitled to equitable relief. Stone, C. J., and Ostrander and Brooke, JJ., dissenting.
    On Rehearing.
    6. Same.
    Former opinion affirmed, distinguishing Wipfler v. Wipfler, 153 Mich. 18 (115 N. W. 544), where the fraud, if any, occurred after a voluntary conveyance, while in the case at bar the conveyance was induced by fraud. Stone, C. J., and Ostrander and Brooke, JJ., dissenting.

      Appeal from the superior court of Grand Rapids; Stuart, J.
    Submitted June 16,1915.
    (Docket No. 59.)
    Decided July 21, 1916.
    Rehearing granted September 27, 1916.
    Reargued October 27, 1916.
    Former opinion affirmed December 21, 1916.
    Bill by George H. Judd against Peternella Judd and another for the cancellation of certain conveyances, for an accounting, and for other relief. From' a decree for complainant, both parties appeal.
    Affirmed.

      Richard C. Goodspeed and Fred P. Geib, for complainant.

      Gleason & Lee (M. L. Dunham and Henry E. Chase, of counsel), for defendant.

      For authorities passing' on the question of marital misconduct of one spouse as avoiding gift by other spouse, see note in 35 L. R. A. (N. S.) 124. And as to effect of conveyance of real property from husband to wife, see note in 69 L. R. A. 379.

   Bird, J.

While George and Peternella Judd were husband and wife, he deeded to her certain real estate in the city of Grand Rapids. Subsequently, on account of ill health, he went to Florida, and there engaged in business. While there, defendant Peternella sought and obtained a divorce from him in the Grand Rapids courts. In the divorce case no alimony was asked or granted. Later complainant returned to Grand Rapids, and instituted these proceedings, praying for a cancellation of the conveyances, for an injunction restraining her from disposing of the property, and for an accounting of her management of the property. The defendant Ellis, being interested in some of the property which is in question, was made a party. The chancellor after a very full hearing granted complainant a decree for $5,000 in lieu of his interest in the real estate. The decree pleased neither party, and both have appealed. It appears from the record that the Judds were married in January, 1887, and that following this for 20 years they resided in the city of Grand Rapids. They appear to have gotten along reasonably well in a domestic and financial way. He appears to have accumulated some means from his own business efforts, and that, added to what he inherited, found him in 1908 worth, as the court finds, about $12,000. This was mostly invested in Grand Rapids real estate. The complainant was afflicted with asthma, and in the early winter of 1908 his malady drove him to seek a milder climate. He went to Florida and found that it agreed with him, and afterwards engaged there in the printing business. The defendant remained in Grand Rapids and looked after the real estate and collected the rents. In January, 1909, complainant found his business in Florida in a precarious condition, owing to differences with his partner, and he was obliged to have money to relieve the situation. He came north and requested defendant Ellis to increase the loan on what was known as the White property from $5,500 to $6,500. This was agreed to by Ellis, but the wife refused to give her consent to the increase of the loan, unless the defendant deeded the property to her. Thp contract for the purchase of the White property stood in their joint names. The other real estate was owned by them in the same manner. This refusal upon her part caused much discussion between them. They do not agree as to what was said at the time. Complainant’s business needs were such, however, that he finally yielded and conveyed to her all of his interest in the real property owned in Grand Rapids. Thereupon the loan was increased on the White property from $5,500 to $6,500, and he returned to the south to take care of his business matters. In November following Peternella filed her bill praying for divorce from complainant, and obtained a pro confesso divorce upon the ground of extreme cruelty.

Defendant divides her argument into the following divisions:

(1) The demurrer to the bill.

(2) If the demurrer be not well taken, must not the case be decided upon the pleadings alone? .Had the complainant the fight to take testimony?

(3) Laches.

(4) The evidence and motion to strike out.

1. Inasmuch as the demurrer questions the equity of the whole bill, this ground will be considered along with the other questions.

2. Complainant failed to give the statutory notice to take proofs in open court. 3 Comp. Laws, 10188. When the case came on for hearing, objection was made by defendant to the proofs being taken in open court by reason of the failure to give such notice; but the court, after learning what was involved in the suit, ordered the testimony to be taken. Undoubtedly the complainant had forfeited his right to demand an examination of the witnesses in open court by failure to give the notice within the time prescribed, but his failure does not take away from the trial court the power conferred upon him to make the order upon his own initiative. 1 Comp. Laws, § 211 (3 Comp. Laws 1915, § 12034); Circuit Court Rule 25. Several cases are cited by defendant’s counsel to show that the trial court had no power to make this order after default of the parties in giving the notice. We do not agree with this construction. The statute opens the way for the parties themselves to demand an examination of their witnesses in open court. The statute also authorizes the rule which gives the court the power to order it upon its own initiative. If we are to say that the court is deprived of this power because the parties have neglected to make the demand, it would render the latter statute and rule of very little force or effect. We think the trial court was entirely within his authority in ordering the testimony to be taken in open court.

3. The doctrine of laches is urged as a reason why complainant should be denied relief. Ordinarily property rights are adjusted in divorce proceedings; but the defendant in her bill for divorce did not ask for any relief in that regard, and no decree was made affecting them. If property rights are not settled in divorce proceedings, they may be later in a separate proceeding. Meldrum v. Meldrum, 15 Colo. 478 (24 Pac. 1083, 11 L. R. A. 65); Thomas v. Thomas, 27 Okl. 784 (109 Pac. 825, 113 Pac. 1058, 35 L. R. A. [N. S.] 124, 133, Am. & Eng. Ann. Cas. 1912C, 713); Hall v. Hall, 9 Or. 452. The record shows, no such change in the situation of the parties as could reasonably call for an application of the doctrine of laches. For aught the record shows, the case might as well have been heard when it was as earlier, so far as defendant’s equities are concerned.

4. The defendant contends that complainant has not made a case which entitled him to relief; that the testimony shows that complainant made the conveyance with a full understanding of what it meant; and that there was no fraud practiced nor any agreement made, oral or otherwise, which constituted the defendant a trustee of the property for the benefit of their joint use in the future; but that, if there were such an agreement, it was a parol agreement and could not now be enforced by reason of the inhibition of the statute. Section 8835, 3 Comp. Laws (3 Comp. Laws 1915, § 11571). And it is further contended that the testimony brings the case squarely within the following line of authorities of this court, in which the statute referred to has been construed and enforced: Jackson v. Cleveland, 15 Mich. 94, 102 (90 Am. Dec. 266); Palmer v. Sterling, 41 Mich. 218 (2 N. W. 24); Shafter v. Huntington, 53 Mich. 310, 314 (19 N. W. 11); Bulen v. Granger, 56 Mich. 207 (22 N. W. 306); Tiffany v. Tiffany, 110 Mich. 219 (68 N. W. 127); Chapman v. Chapman, 114 Mich. 144 (65 N. W. 215, 72 N. W. 131); Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461); Wipfler v. Wipfler, 153 Mich. 19 (116 N. W. 544, 16 L. R. A. [N. S.] 941); Waldron v. Merrill, 154 Mich. 203 (117 N. W. 63); Purcell v. Pwrcell, 162 Mich. 404 (127 N. W. 310); Sherwood v. Davis, 168 Mich. 398 (134 N. W. 463); Halliday v. Basel, 170 Mich. 489 (136 N. W. 354); Longe v. Kinney, 171 Mich. 312 (137 N. W. 119); Crane v. Read, 172 Mich. 642 (138 N. W. 223); Churchill v. Howe, 180 Mich. 150 (146 N. W. 623).

Complainant’s claim is that he was led to believe by acts and declarations of defendant, at and before the time of the conveyance, that she intended to continue the marriage relation with him; that during the days preceding the making of the conveyance, while he was endeavoring to obtain her consent to the increase of the loan, he suggested to her that in the future he would be obliged to live in the south, and, if she preferred to separate and divide the property, he,would consent to it. To this she replied that she never wanted a divorce; that she was perfectly willing to live as they were then living. In that connection, he asserts she said she believed she could make more out of the property than he could; that, if he would convey the premises to her, she would remain in Grand Rapids and care for the property, improve it, and collect the rents, and they would have something to fall back on when they were old. He further states that he relied upon these declarations and promises, and that he would not have conveyed the premises to her if he had known that she intended to get a divorce from him after he returned to the south. He further insists that, while making these declarations, she had in mind to deceive him and to obtain a divorce from him, as she subsequently did, and deprive him of sharing in the benefits arising from said property. He insists that it was not a voluntary conveyance, and that what he asks does not conflict with the statute nor the line of cases cited by defendant, but that the testimony brings it within the zone of fraud, which, if established, entitles him to relief in a court of chancery.

These contentions of counsel must turn upon the question as to whether it can be said any fraud or' deception was practiced by defendant in obtaining the conveyance. If the conveyance were a voluntary one, as contended by defendant, complainant is entitled to no relief, even though it be admitted that a parol trust was annexed to the conveyance. 3 Comp. Laws, § 8835 (3 Comp. Laws 1915, § 11571). If complainant is right in his contention that the record shows that he was deceived by the defendant into the belief that she intended to continue the marriage relation with him, and if at the time she made the declarations and promises she intended to secure a divorce from him as soon as convenient, and thereby deprive him of all benefit in the property, it was a fraud upon him, and it is within the power of a court of equity to assist him. Witbeck v. Witbeck, 25 Mich. 439; Stiles v. Stiles, 14 Mich. 72; Dickerson v. Dickerson, 24 Neb. 530 (39 N. W. 429, 8 Am. St. Rep. 213); Meldrum v. Meldrum, 15 Colo. 478 (24 Pac. 1083, 11 L. R. A. 65); Fischer v. Fischer, 245 Ill. 426, 429 (92 N. E. 283); Turner v. Turner, 44 Mo. 535; 21 Cyc. p. 1301.

In Dickerson v. Dickerson, supra, the parties had lived together as husband and wife for 22 years. Plaintiff owned a homestead of 160 acres on which he resided with his wife. At that time the wife stated to the husband that, as they had no children, the land in case of his death would descend to his heirs, and leave her without a home or means of support. To relieve her anxiety, he, at her instance, conveyed 80 acres of said land, containing the house, etc., to her through a trustee. Three years later, without any apparent cause, she deserted her husband. He then brought this suit to obtain a reconveyance. The court said:

“That the deed was obtained by the defendant from the plaintiff by reason of the confidence which he placed in her as his wife is clearly shown. The land was still to be occupied as a homestead by both of them. The conduct of the defendant prior to the making of the deed was such as might reasonably have led the plaintiff to suppose that the defendant was satisfied with her condition, and would continue to reside with him so long as they both should live, and by reason of this confidence she obtained the title. Having obtained the property under the implied agreement that the marriage relation should continue to exist and the parties reside together, the defendant will not be permitted to retain property which she acquired from her husband by deceit and imposition. Had the defendant notified the plaintiff before the execution of the conveyance that she intended to desert him, it is very clear that it would not have been made. The conveyance was not voluntary, in the sense that it was executed as the free will of the plaintiff, nor was it a gift. Cases relating to such conveyances, therefore, are not in point.
“A party who, by means of the confidential relations between the parties, by deceit and imposition obtains property of the other, will be compelled in a proper case by a court of equity to restore the same to the party injured. Huguenin v. Vasely, 14 Ves. 290; Taylor v. Taylor, 8 How. 200; Boney v. Hollingsworth, 23 Ala. 698.”

A study of the record leads to the conclusion that complainant was misled by her statements, and it is also persuasive that, at the time the conveyance was made, she did not intend to continue the marriage relation any longer than was necessary to serve her purpose.

That defendant should annex such a condition to the request of her husband to raise $1,000 to save his property in the south is to my mind unnatural. That she should have refused to consent at all, on the ground that it would endanger their Grand Rapids property because of added interest charges, would be natural; but to consent to aid him only on condition that he release all of his interest in the property to her indicates that she desired to get the title for some ulterior purpose. If the loan were increased, the added interest would be the same, whether she owned the property or they both owned it.

Upon cross-examination defendant gave as a reason why she wanted the title, was to prevent plaintiff from coming back every little while and wanting more money and spending it and wasting it. Had this reason for wanting the title been the real one, she would have been content with the title as it was. She was a tenant by the entirety, and complainant could neither incumber nor sell it without her consent, and this she knew. So far as preserving the property, she was' in just as good a position to accomplish that with the title as it was before the conveyance was made, as she was afterwards.

In November, 1909, she filed a bill praying for a divorce, upon the ground of extreme cruelty. It is reasonably certain that she had suffered no extreme cruelty from the time complainant went away in January up to the time that she made her application. If she did not want a divorce in January on the ground of past cruelty, she does .not make it clear to us why she should want one on that ground in November.

This phase of the case has been discussed very ably by both counsel; but, after having read the last word of the briefs upon this subject, I cannot escape the impression that the complainant never would have conveyed his entire interest in their real estate in Grand Rapids in response to her request, if he had not believed that she intended to continue the marriage relation with him, and permit him to share in the benefits of the property in their old age. It is inconceivable that he would have given away his entire estate in Grand Rapids to raise $1,000 to save property in Florida that was worth much less than what he sacrificed to secure the money. I am of the impression that the chancellor was right in granting complainant some relief.

The chancellor who heard the case gave complainant $5,000 in lieu of his interest in the property. While this is somewhat less than half of the value of the property, undoubtedly the question of divorce and alimony and the fact that she had invested some money in the property by way of repairs, moved the chancellor to fix the amount at that sum. We think this is a very equitable adjustment of the matter.

The decree will be affirmed. No costs will be allowed either party in this court.

Kuhn and Steere, JJ., concurred with Bird, J.

Brooke, J. I am unable to distinguish this case from Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941). The decree should be reversed

Stone, C. J., and Ostrander, J., concurred with Brooke, J.

Moore, J., did not sit.

The late Justice McAlvay took no part in this decision.

On Rehearing.

Bird, J.

We do not find that our views have changed as a result of the rehearing in this case. To the statement of facts in our former opinion might be added the further fact that on the occasion when complainant came north in January, 1909, to secure the $1,000 loan for use in his business in Florida he and defendant made mutual wills.

The reargument which was had has given added strength to our belief that the case is not ruled by Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941). In that case there was no intimation that the wife secured the conveyance by means of fraud and deception. It was conceded to have been a voluntary conveyance. Perhaps some claim was made that her refusal to surrender the deed when her husband afterwards demanded it was in fraud of his rights, but it was not claimed that she acquired it fraudulently. The present case is based upon the theory of fraud and deception, and that by those means she acquired a deed of the premises, and complainant makes it very clear that had she not deceived him as to her then present intention he would not have conveyed it to her. For a valuable case on the question when a misrepresentation of a present intention will amount to fraud, see Adams v. Gillig, 199 N. Y. 314 (92 N. E. 670, 32 L. R. A. [N. S.] 127, 20 Am. & Eng. Ann. Cas. 910).

The decree of the trial court will be affirmed, with costs of the rehearing to the complainant. No other costs will be allowed.

Kuhn, Moore, Steere, and Person, JJ., concurred with Bird, J.

Ostrander, J. In my opinion this case and that of Wipfler v. Wipfler cannot be distinguished in principle. The decree should be reversed and bill dismissed.

Stone, C. J., and Brooke, J., concurred with Ostrander, J.


text:
    CHESBROUGH LUMBER CO. v. CHIPPEWA CIRCUIT JUDGE.
    Mandamus by the Chesbrough Lumber Company against Patrick H. O’Brien, presiding circuit judge of Chippewa county, to compel respondent to vacate an order of retaxation of costs.
    Submitted January 18, 1916.
    (Calendar No. 26,994.)
    Writ granted July 21, 1916.

      John W. Shine, for relator.

      Davidson & Hudson, for respondent.
   Bird, J.

Relator prays for a writ of mandamus to compel respondent to vacate his order retaxing the costs in the suit of Packard v. Chesbrough Lumber Co. The questions involved herein are identical with those raised and decided in Chesbrough Lumber Co. v. Circuit Judge, 190 Mich. 539 (157 N. W. 23), and is ruled by it.

The writ will be granted, with costs to the relator.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred.