text:
    GORDON v. CLEVELAND SAWMILL & LUMBER CO.
    1. Logs and Logging —Scaling—Merchantable Logs —Mill Culls — Evidence.
    Defendant contracted to buy all the merchantable white-pine sawlogs upon land described in the contract. The logs were to be scaled “according to the Scribner rule, making allowance for all defects.” In an action for the price of the logs, defendant claimed that the scale should make deduction for mill culls, though they have a merchantable value. There was evidence that there are mill culls in lumber made from sound logs, showing no visible defects. The court left it to the jury to determine whether a merchantable log might contain mill culls, and, if so, whether they should be excluded from the scale. Held, sufficiently favorable to defendant.
    2. Same — Allowance for Defects.
    Where the scale provided for by a logging contract is to “make allowance for all defects,” visible defects are contemplated, and a scale which allows for possible defects, not visible to the scaler, is not binding upon the parties.

      3. Sale — Warranty of Title — Action for Price — Defenses.
    Where the vendee in a contract for the sale of logs, reserving title in the vendor until payment of the purchase price, sells the logs to a third person, warranting his title, the latter cannot, hy buying in the claim of the original vendor for a balance due, defeat a recovery by his immediate vendor for ' the value of the logs delivered over and above the amount of the claim so purchased.
    Error to Marquette; Stone, J.
    Submitted January 4, 1900.
    Decided March 27, 1900.

      Assumpsit by John R. Gordon against the Cleveland Sawmill & Lumber Company for logs sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Clark & Pearl (B. J. Brown, of counsel), for appellant.

      Button & Culver ( Watts S. Humphrey, of counsel), for appellee.
   Moore, J.

Plaintiff sold to defendant a quantity of sawlogs. Advances were made by it to plaintiff from time to time. A dispute arose between the parties. The plaintiff claimed there was due him upwards of $18,000. The defendant claimed it had overpaid the plaintiff, and that upwards of $4,000 was due it. From a judgment in favor of plaintiff, the defendant has brought the case here by writ of error.

A contract was made between the parties, the material portions of which read as follows:

“This agreement, made and entered into this seventh day of October, A. D. 1897, by and between the Cleveland Sawmill & Lumber Company, of Cleveland, Ohio, as parties of the first part, and John R. Gordon, of the city of Marquette and State of Michigan, party of the second part, witnesseth: That the said second party has this day sold to said first parties, they having bought the same, all the merchantable white-pine sawlogs to be cut from the lands described on memorandum of same herewith attached and forming a part of this contract; the quantity now estimated to be from seven million feet to nine million feet of logs. * * * All of said timber logs aforesaid, from eighteen feet to twenty-four feet, to be sound and straight, and no logs less than nine inches at the top end are to be put in under this contract, except by the consent of the scaler. Said logs are to be carefully end-marked G2, G3, G4, and G5, and to be scaled on the skidways in the woods, as put up, by Daniel Driscoll, Joseph McNaughton, and Frank F. Hayes, according to the Scribner rule, making allowance for all defects. * * * It is particularly understood and agreed that the aforesaid Frank F. Hayes is to make what is known as a ‘ numbered scale ’ of all logs which he shall be called upon to scale, the same being open to examination by Joseph McNaughton, aforesaid, who is to inspect from time to time the scale so made by said Hayes, making comparisons between the scale of various logs made by himself and heretofore scaled by said Hayes, making report each week of this comparison to each of the parties to this contract, and in the end is to determine as to whether there shall be any variation made from the said numbered scale made by Hayes, either increasing or decreasing the same, and, if so, what percentage. After the logs are scaled as aforesaid in the woods, the said scalers are to make a piece count of all logs hauled and delivered on the various banking grounds, and, if in the end it is found that there is a variation between the number of logs scaled in the woods and those delivered in the bank, such variation shall be adjusted upon the basis of a general average contents of each log as generally scaled in the woods; any cull logs that may be hauled to the bank being not considered, but reported as such.
“The said logs are to be delivered to the said first parties in booms to tug in Lake Superior, at points near Sauks Head lake, the mouth of the Salmon Trout river, and the-mouth of the Pine river. And, after complete delivery on part of said second party, a careful survey of the various streams and banking grounds is to be made by some party appointed by said first parties, for the purpose of ascertaining if any logs banked have not been delivered in booms to tug as aforesaid; and, in case any logs .are found to be so not delivered, a deduction is to be made from the number of logs reported delivered on the bank, and the number of feet to be ascertained by applying the average number of feet found to be contained in each log put in under this contract. * * *
“Said first parties hereby agree to pay to the said second party the sum of nine dollars and fifty cents ($9.50) per thousand feet for each and every thousand feet of said logs so delivered in booms to tug in Lake Superior as aforesaid. * * *
“The said second party further agrees to deliver the said logs to the said first parties free from all claims and incumbrances of whatever name or nature, and further agrees to warrant and defend the said first parties against all liens of whatever name or nature.”

■ The plaintiff did not deliver all the. logs, because about March 1st the snow went off, making it impossible to move the logs after that date, though he had plenty of teams and appliances. No claim is made by defendant for damages because of failure to deliver the full quantity of logs.

The scale contemplated by the contract to be made in the woods was not made. McNaughton left the woods about the middle of the winter, and did not return. The plaintiff claims he left the woods at the request of the defendant, to attend a .lawsuit at Cleveland as a witness in a case in which defendant was interested, while defendant claims he was sick. The testimony is very clear this scale was abandoned. The testimony indicates it was later agreed that Driscoll should scale the logs while in the booms. This was not done, Driscoll for some reason refusing to scale them while in the booms. It is the claim of the defendant that it was agreed that Driscoll should scale the logs while they were going up the jack-hoist. This is denied by the plaintiff. The jack-hoist was used to lift the logs from Lake Superior to a pond in which the water stood 10 or 12 feet above the water in Lake Superior. It was an incline, with an endless chain, in which there were spurs, which caught upon the logs, and conveyed them up the incline, and dumped them into the pond. Mr. Driscoll stood at one side of this incline, and made his scale as the logs were moving. It is claimed by plain» tiff, and there is testimony tending to show, that these logs passed Mr. Driscoll at the rate of one every 10 or 12 seconds, some of them so near together that he could not get his rule upon the small end of the log, and that, if he had desired to do so, it was impossible for him to make a proper inspection. Mr. Driscoll made a count of the logs,which showed that there was something more than 38,000 of them. Mr. Gordon had an inspector at the jack-hoist for a time, and also attempted to have the logs scaled and lumber measured in the mill. His men were put out of the mill. He finally resorted to the court, and succeeded in having nearly 16,000 logs counted and the lumbér measured by men employed by him. All the scales and measurements made by persons employed by either party were permitted to go to the jury. Mr. Gordon bought the timber from which these logs came from McCall & Mc-Burney, who retained title to the timber until it was paid for. After these logs were cut, and most of them delivered, defendant was notified that McCall & McBurney still had a claim, represented by the notes of Mr. Gordon, of a little more than $4,000, for the purchase price of the timber. The defendant furnished the money to take the notes out of the bank, and had the notes transferred to it. It now claims that, as plaintiff did not have the title to the logs, he could not recover from the defendant for the logs sold to it.

There are a good many assignments of error, but we think but two questions need discussion: First. Did the court err in its instructions to the jury as to the measurement of the logs ? Second. Is it true plaintiff cannot recover anything which may be due him because he did not pay McCall & McBurney that portion of his debt paid to them by defendant ?

By the terms of the contract, the defendant agreed to buy all the merchantable white-pine sawlogs upon the land described in the contract. All the witnesses are agreed that a merchantable log is one that will make sufficient lumber to make it profitable to take it to the mill and have it made into lumber. It is admitted by counsel for defendant that all the logs marked by the scalers were merchantable logs, within the terms of the contract. On the part of the plaintiff it is claimed that, when a log is decided to be merchantable, it is the duty of the scaler, under the contract, to scale it according to the Scribner rule, making allowance for all visible' defects, and to then set down the scale, and that defendant should be required to pay for as many feet as the log contains after the allowance for the defects is made, irrespective of the grade into which the lumber will go when manufactured. It is the claim of defendant that it is the duty of the scaler in making his scale to make such allowances as shall result in the purchaser getting as many feet of merchantable lumber from the log as the scale makes the log contain, excluding all mill culls, even though the mill culls have a market value.

A great deal of testimony was introduced upon both sides as to the proper manner of making the scale, as to what constituted merchantable lumber, and that mill culls had a market value and the extent of that value. The court left the question to the jury, after calling their attention to the terms of the contract, in the following language :

“ In ascertaining and determining the number of feet contained in merchantable logs so passed by the scaler, I charge you that these scalers would be bound, in making such determination, to follow the method of scaling therein provided for. So, gentlemen, I repeat that the question, after all, for you to determine, is not how much lumber was produced from these logs, as your primary inquiry, but how many feet of merchantable logs were sold ? As I shall say to you further on, you will have occasion undoubtedly, in considering this case, and be compelled, to go — Among other things, perhaps, that will be for you to say, perhaps, as you shall view one branch of the evidence, you may find it necessary to look at the lumber scale and the product of the logs; but for what purpose ? For the purpose of determining the number of feet of merchantable white-pine sawlogs. After all, it comes back to that.
“Now, gentlemen, what is a merchantable white-pine sawlog? . Under the evidence in this case, you will say what that was, and you will say whether the evidence in this case shows that these logs were merchantable logs. And I advise you that a merchantable log is such a log as would be worth taking off the land to be converted into lumber of various grades to be sold in the market at some market price. Such a log, in the judgment of the court, would be a merchantable log. Now, gentlemen, is it a log that may contain mill culls? I shall leave that to you as a question of fact, under the evidence in this case. You will look over the evidence.
“It is contended here, on the part of the plaintiff, that ■such a merchantable log may contain 'more or less of cull lumber, and- that when the logs are sold as logs, and all the visible defects have been scaled out, and the log is. passed as a merchantable log, that then you are concerned simply as to the contents of that log. On the other hand, it is contended that nothing should he allowed here but the product; that is, what it will make of merchantable lumber, exclusive of the mill culls. It is-a question you will have to pass upon; bearing in mind that the plaintiff has the burden of proof here to maintain his case by a preponderance of evidence. And you may consider the product and its quality as bearing on the question as to whether the logs were, or what quantity of them were, merchantable in this case. What we are interested in is the quantity of merchantable white-pine saw-logs,— for the merchantable white-pine sawlogs delivered by the plaintiff, and for which he is entitled to recover, — and then, as I have said, their value, understanding that their value cannot exceed the contract price, for when a party sues to recover here, as the plaintiff has, and taking his position upon the common counts in assumpsit, he cannot recover exceeding the contract price and he cannot recover the contract price unless the logs are shown to he worth that sum. It is compensation that he seeks to recover. In this case there is nothing by way of recoupment or claim of damages on the part of the-defendant for the nondelivery of any logs, or for any other-damages claimed to have been suffered because of the nonperformance of this contract.
“So it comes right back to the question of the quantity and value of the logs delivered, or the merchantable logs delivered. I have watched the argument in this case, and I see that the plaintiff claims nothing at yonr hands except what he claims as merchantable logs.
“Under the terms of .the contract in question, this scale of the merchantable logs was to be made with Scribner’s rule, the scaler making allowance for all defects; and the defendant undertook and promised to pay the plaintiff for each and every thousand feet of said logs— that is, merchantable logs — delivered in accordance with the terms and provisions of the contract; and I charge you that a scale of these logs under that provision would require the scaler to throw out or exclude from his scale all visible defects in the log which would prevent its making lumber, and that the plaintiff was entitled to be credited with every thousand feet of lumber, less visible defects, as shown by Scribner’s rule, that the logs contained, irrespective of its quality' or grade. Why ? Why, because this was a sale of sawlogs, gentlemen. And suppose that they had not yet been manufactured, and were not to be manufactured for 10 years; how could we then ascertain anything about the product ? The sale contemplated, as I said, the transfer of the title to sawlogs, as logs, — merchantable logs. And the moment you have reached the quantity of merchantable logs you have reached the amount that the plaintiff is entitled to recover in this case.
“The provisions in the contract with respect to the scale and measurement of the logs is a subject on which the parties have a right to contract; and in this agreement theparties have fully covered that subject by their agreement, which is binding upon the court and jury, and the intention of the parties as to the mode or method of such scale must be gathered from the language of the instrument itself. As the same is unambiguous, I charge you that in this contract the defendant, having agreed to pay the plaintiff nine dollars and fifty cents per thousand feet for each and. every thousand feet of said logs, means each and every thousand feet of said logs that will make lumber as shown by the Scribner rule, after making allowance for all the visible defects in said logs. I ask you again, how could these logs have been settled for if they had not yet been manufactured into lumber? Is it not conceded by all the witnesses that the only thing the scaler can take out is visible defects? Why, then, it is a sale and transfer of merchantable logs. If the visible defects have all been taken out, the result or remainder of what is left in that log is what is passed by the sale.”

It must be borne in mind that this was not a contract for the purchase of merchantable lumber, but it was a contract for the purchase of merchantable logs. There is no controversy but that the logs which were delivered were merchantable, but it is said they were not properly scaled. If the parties had wanted the mill culls excluded from the scale, it would have been easy to put it into the contract. There is an abundance of testimony that in good logs there will be mill culls. In the testimony of Mr. Knight, the secretary of the company, the following occurs:

“ Q. Knowing, as we do, as I understand you to say, that nearly all merchantable logs have mill culls in them, would you consider that a scaler was doing his duty that made a deduction, in a sound log, for the mill culls that i might be in it’?
“A. No; I should think he was not doing his duty, even though he felt certain there were some mill culls in the log.
“ Q. A good many mill culls are made, are they not, by sawing ?
“A. Well, I presume so, — a few. They may be made from defective sawing.”

The testimony indicates very clearly there will - be some mill culls in the lumber made from sound logs which do not show any visible defects.

Suppose that, instead of buying logs yet in the tree, the logs were already cut, and, after seeing them, defendant had agreed to pay $9.50 a thousand feet for them, the logs to be scaled according to the Scribner rule, making allowance for all defects. If the logs were delivered, and such a scale made, could the defendant be heard to say that the scaler should not only make allowance for all defects, but should also make allowance for all mill culls ? Speaking for myself, I do not think this would be a fair construction of the contract. The court, however, left it for the jury to say, under the proofs, whether a merchantable log may contain culls, and whether it should be so scaled that its product will be merchantable lumber, exclusive of the mill culls. The defendant cannot complain of this. Peterson v. Anderson, 44 Mich. 441 (7 N. W. 56); Corneil v. Lumber Co., 71 Mich. 350 (39 N. W. 7); Crane Lumber Co. v. Otter Creek Lumber Co., 79 Mich. 307 (44 N. W. 788); Welch v. Palmer, 85 Mich. 310 (48 N. W. 552); Daggett v. Hayward, 95 Mich. 217 (54 N. W. 764).

The court called the attention of the jury to the claims of the parties in relation to the scale of Mr. Driscoll at the jack-hoist, and used this language:

“I charge you that if you find that this scaler was agreed upon between the parties to make the scale, and if he had made the same in accordance with the provisions and terms of the contract, such scale would be binding upon both parties; but I charge you that if he made this scale with the intention and for the purpose only of accounting for the merchantable lumber in each of the logs scaled, excluding all of the mill culls from such scale, this was not the scale agreed upon, and was not binding upon the plaintiff.”

Upon a motion for a new trial, and here also, it was and is earnestly insisted this language was error, because the court substituted his judgment for that of the jury. We cannot do better in disposing of this assignment of error than to quote the language of the trial judge used in denying the motion for a new trial:

“Driscoll had testified that he had scaled the logs at the hoist so as to exclude all mill culls. I think it may be said to be the undisputed evidence in the case that the object and aim of a proper scale is to give the contents of the log, excluding visible defects, and that when a proper scale is made, and all visible defects are excluded, yet in the product of the log there will be more or less of mill culls, owing to defects that were not visible to the scaler. A scale made to exclude all mill culls must have deducted more than visible defects, and must have made an additional allowance for mill culls. Such a scale, it seems to me, was not the scale contemplated by the contract, for the ‘making allowance for all defects’ there referred to must have meant visible defects; and I therefore charged the jury ‘that, if he made this scale with the intention and for the purpose only of accounting for the merchantable lumber in each of the logs scaled, excluding, all of the mill culls from such scale, this was not the scale agreed upon, and was not binding upon the plaintiff.’ The testimony of Driscoll being undisputed that such was his purpose, I think that I might properly have gone further and told the jury positively that his scale was not such a scale as the parties contemplated in the contract. But I left the jury to find the character of this scale. Unless the defendant is right in this contention, that only merchantable lumber should have been considered in the scale, I do not see any error in this part of the chai'ge.”

It is said there is no evidence upon which the jury could base its verdict. We agree with the trial judge that there was evidence sufficient to base it upon. The plaintiff attempted before the logs were manufactured to have them scaled by some one besides Driscoll, He attempted to have them scale the logs or measure the lumber while the logs were in process of manufacture. He was not aided in either of these efforts by the defendant. He was compelled to make his case as best he could. Mr. Bradley and Mr. Long were employed by the plaintiff. They worked together; Mr. Bradley counting nearly 16,000 of the logs, and Mr. Long measuring the lumber which came from them. The result of their work was put before the jury. There was evidence that the average in size and quality of the logs which were delivered was about the same, and that there were upwards of 38,000 of them delivered. There were data from which the verdict of the jury can be justified.

Is the claim of defendant that, because plaintiff has not paid McCall & McBurney in full for the timber, he cannot recover for the logs sold and delivered to defendant, well taken ? The court said to the defendant that the amount it paid to McCall & McBurney for the notes given by Gordon could be set off by it in this action. The defendant declined to use the claim as a set-off, but insists that, for want of title on the part of plaintiff, he cannot recover. If it be conceded that by the purchase of these notes defendant succeeded to all the rights of McCall & McBurney, does that defeat the claim of the plaintiff? By this purchase defendant obtained no greater rights than McCall & McBurney had. Upon the payment of the notes to McCall & McBurney, their lien or right, whatever it might be, to the logs would be extinguished. Would not the same thing be true when the notes passed to the defendant ? If the claim of the defendant is tenable, had they paid plaintiff nothing upon the logs which they obtained from him, valued at upwards of $50,000, by the purchase of the note§, amounting to but $4,000, they could defeat his recovery. This is not just, and we are not convinced it is the law. The jury have found that plaintiff delivered defendant enough logs to amount, at a valuation not exceeding the contract price, to enough not only to pay all that had been advanced to him by defendant, but what had been paid by the defendant to McCall & Mc-Burney for the notes, and a considerable balance besides.

Judgment is affirmed.

Montgomery, C. J., Hooker and Grant, JJ., concurred. Long, J., took no part in the decision.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    VAN VLECK v. CONKLIN.
    1. Decree — Res Judicata — Priority or Liens — Judicial Sale —Surplus.
    A son borrowed money to pay the debts of his father’s estate, of which he was himself the largest creditor, and to purchase the outstanding interests. The loan was secured by a mortgage on the property. Later a bill was filed, to which the executors of decedent, the son, and the mortgagee were made parties, upon which a decree was rendered declaring a lien in favor of complainant, as creditor of decedent, upon the property in question, and directing that it be sold, and the proceeds applied upon a basis fixed in the decree, which required such lien to prorate (a) with the amounts paid by the son to satisfy claims of third persons against the father’s estate (as to which the 'mortgagee was subrogated to the son’s rights), and (b) with the son’s individual claim against such estate. The premises being sold, the mortgagee, on a motion for distribution of the proceeds, asserted a right, as against the mortgagor, to the entire surplus after payment of complainant’s claim; upon which motion the court determined that the original decree settled the rights of the parties to the several amounts specified, and that the mortgagee, not having appealed, should prorate with the mortgagor upon the basis fixed therein. Held, that the decree ordering sale was res judicata only as to the issues raised by complainant in that proceeding, and that the. specifying of the liens with which complainant should prorate did not have the effect of fixing the rights of such lienholders as between themselves. Held, further, that the surplus should be paid to the mortgagee.
    2. Appeal — Record—Foreclosure—Amount Due.
    On an appeal from a decree of distribution of the proceeds of sale of mortgaged premises to satisfy a prior lien, an objection that the record does not disclose that anything was due on the mortgage, because the note was not introduced in evidence, is without force, where the note is filed in the appellate court with an affidavit explaining satisfactorily why it was not filed below, and the record contains the answer of the mortgagor in the proceeding to establish the prior lien, in which he admits that the mortgage is due and unpaid.

      Appeal from Montcalm; Davis, J.
    Submitted January 3, 1900.
    Decided March 27, 1900.
    Bill by Edith A. Allen against Egbert S. Conklin and another, executors of the last will and testament of Richard Low, deceased, Jonah Low, and Peter Van Vleck, for an accounting with the estate, and to establish a lien upon land devised. There was a decree for compláinant, and defendant Van Vleck, as complainant’s assignee, made a motion for an order directing the payment to him of the moneys arising from a sale of the premises under the decree. The motion was opposed by James Donovan, as assignee of Jonah Low, and was denied by the court. Prom a decree distributing the proceeds, complainant, Van Vleck, appeals.
    Reversed.

      William O. Webster, for complainant.

      A. A. Ellis, for defendant Donovan.
   Long, J.

In the circuit court for Montcalm county a motion was made by complainant for an order directing the register of the court to pay over to him the moneys arising on the sale of certain premises under a decree made in the case of Allen v. Conklin, of which decree complainant here is the assignee. The case of Allen v. Conklin was before this court on demurrer, and is reported in 112 Mich. 74 (70 N. W. 339). The facts alleged in the bill are there fully set forth. It was there said:, “If the allegations of the bill are proven, we think a bill in equity will lie to reach the property still in the hands of the heirs, devisees, or legatees of Richard Low, deceased.” The cause was remanded, and the appealing, defendants were given 20 days to answer. Answers were filed by the defendants Jonah Low and Peter Van Vleck, and proofs were taken in open court. On the hearing the court below found by the decree that there was due complainant, Edith Allen, the sum of $1,295.36, and a lien was declared upon the N. W. i of section 13, township 9 N., range 6 W., Montcalm county, this State, for that amount, with interest from date of decree at 6 per cent., together with the taxable costs in favor of complainant. The court also found by said decree that Jonah Low and Peter Van Vleck were not purchasers or incumbrancers of the lands described with rights superior to complainant. The court thereupon decreed that Jonah Low and Peter Van Vleck pay said sum before May 1, 1898, or that, in default thereof, said premises be sold, and the proceeds of such sale be brought into court, and applied to the payment and satisfaction of the decree and of complainant’s claim; and the basis upon which said money was to be applied was fixed as below. The court then found in and by the decree that:

“At the time of the allowing of the final account of the executors of said estate, there was due to said executors the sum of $636.78, which said sum has, never been paid by any moneys of the said estate, but were advanced by the said Jonah Low out of moneys received by him from the said defendant Peter Van Vleck; and there was also due, at the time of the allowance of the final account against said estate, to Dr. Lovett, medical attendant to Eliza Low, $123. 50, and to the heirs of David Low, deceased, for legacies, $150, — which sums together amount to $910.28, which, with the interest thereon from the time of their allowance, to wit, April 29, 1895, at 6 per cent., amount to $1,058.61 on the 17th of January, 1898; all of wdiich were advanced of the moneys so received from the said Peter Van Vleck by the said Jonah Low, excepting $37.50, being one-fourth of said $150, which has never been paid complainant, and which, with interest at 6 per cent, from April 29, 1895, should be deducted therefrom; and said Peter Van Vleck is hereby subrogated to rights of Jonah Low as to said $1,058.61. It also appears to this court that on the 26th day of May, 1884, there was allowed Jonah Low, defendant, against said estate, the sum of $972.49, which said sum, together with interest thereon at 7 per cent, to October 18, 1891, and 6 per cent, from then to January 17, 1898, would amount to $1,839.49, which said sum of $1,839.49, together with $1,015.08, makes a total of $2,854.57, which is due Jonah- Low, and which would stand on an equal footing with complainant’s claim, and prorate with it. No charge is made by this decree against Jonah Low for the use of the lands herein described for any time whatever. He has, however, had the entire use thereof since Richard Low’s death.
“Complainant is decreed to stand prior in her rights under this decree, and the lien declared by it, to all other sums represented in said mortgage from Jonah Low to Peter Van Vleck upon the lands this lien is declared upon, for the full amount hereby decreed to be her due, excepting, however, that complainant’s lien, hereby declared and decreed, shall be subject only to the sum due and unpaid on a mortgage of $300 given by Richard Low to Henry Van Voorheis, November- 23, 1881, covering the northwest quarter of the northwest quarter of said section herein described; and it shall be subject thereto only as to the land covered by said Van Voorheis mortgage.
“The court further adjudges and decrees that all the statutory expenses of administering the estate have been paid prior to October 12, 1895, and the executors of said estate (Heisler and Conklin) have no property, real or personal, in their hands belonging to said estate, and that all the residue of said estate is in the possession, custody, and control of Jonah Low, which constitutes the real estate described in this decree.
“It is further ordered, adjudged, and decreed that, in case this decree is paid and satisfied to complainant’s solicitors by Peter Van Vleck, that he will thereby stand subrogated to all of complainant’s rights by virtue of this decree.
“It is further ordered, adjudged, and decreed that complainant do recover her costs to be taxed against the defendants, and that said costs be included in her lien thereby declared as a part of her claim; that the amount found due to her by this decree, exclusive of costs, shall be first satisfied, and that, if not enough is realized on a sale of said premises as aforesaid, after paying the expenses of said sale of said premises as aforesaid, to satisfy complainant’s claim, including costs as taxed, that she have execution against Jonah Low and Peter Van Vleck for the residue of her costs, but not for the principal sum herein decreed to be due her.”

This decree was never appealed from, and was thereafter, on May 18, 1898, assigned by complainant, Edith Allen, to Peter Van Vleck, one of the defendants in that decree. It appears, also, that Jonah Low assigned all his interest in the decree on May 9, 1898, to one James Donovan. When the present motion was made, James Donovan appeared, and asked that, if Peter Van Vleck was substituted in place of complainant to enforce the original decree, he (Van Vleck) also be made liable to all obligations as defendant as originally incurred, and that he be directed to sell the premises within a reasonable time, and divide the money as provided by the original decree. The court below thereupon directed a sale of the premises, and that the moneys arising therefrom be brought into court. The sale was made, and the premises struck off to' Peter Van Vleck for $4,000, deducting from which expenses of sale left $3,971.25, which was deposited with the register of the court. After these moneys came into court, and on this present motion, the court made a final decree of distribution, providing that:

“James Donovan is the purchaser of the interest of Jonah Low, with the same rights that Jonah Low had previous to such assignment, which rights were purchased by James Donovan before Peter Van Vleck purchased the rights of Edith A. Allen; he, the said Van Vleck, then having an interest of $1,058.61 in the decree. The decree was never appealed from, and, although Peter Van Vleck now asks to have the surplus allowed him, he must stand by the decree that all parties were satisfied with at its rendition. By standing by the decree in part and acting under it, Van Vleck must abide by it in its entirety. He cannot now come in and change the decree. He has taken no steps to determine his mortgage lien, and in no event could he take any lien upon more than was owned by the mortgagor, as it is not claimed that there was any covenant of warranty contained in the mortgage. At the time of giving the mortgage, Jonah Low stood as a creditor of said estate, for such amount as he had paid, and had a lien prior to any mortgage he might give. There is nothing before this court to indicate that any lien given him by virtue of said decree was ever surrendered by him, or intended to be surrendered by him. No application was ever made to this court to place any lien in favor of Peter Van Vleck upon the moneys awarded and determined to be due Jonah Low by virtue of said decree. This court made a decree settling the relative rights of the parties so far as they were at issue, and that issue was determined by settling the lien that Edith A. Allen, Peter Van Vleck, and Jonah Low had by virtue of being creditors and by virtue of having paid the indebtedness of said estate.
“The rights of Peter Van Vleck and the liabilities of Jonah Low under the mortgage have never been settled, except as they are settled in the said original decree. Neither did the parties in this proceeding seek to settle the same, except so far as it was necessary to determine whether the claim of Edith A. Allen was paramount to the title of Jonah Low and lien of Van Vleck by way of mortgage; and, it'being determined that she should stand on an equal footing with Jonah Low and Peter Van Vleck, and prorate with them, it was necessary in said original decree to determine how the money should be distributed that was received from the sale of the premises. I can see no other way than to follow the decree. Therefore it is ordered that Peter Van Vleck be paid his pro rata share of the fund on hand, using as a basis for his proportion the sum of $1,058.61 and the interest thereon, and the sum of $1,471.86 and the interest thereon, — making a total of $2,572.81; and that James Donovan be paid his pro rata share from the money on hand, using as a basis therefor the sum of $1,795.96, with interest thereon to the time of sale, — making a sum of $1,867.80. Adding the whole amount together, it would appear that the amount of the principal sum to be paid would be $4,440.61, and the amount to pay this with is $3,971.25, or 89.4 per cent. Therefore it will be ordered that Peter Van Vleck receive 89.4 per cent, of $2,572.81, amounting to $2,300.89; and that James Donovan, as assignee of Jonah Low, be paid 89.4 per cent, of $1,867.80, amounting to $1,670.36.”

It is from this order of distribution that Peter Van Vleck appeals.

We think the court misinterpreted the effect of what is called the “original decree.” After the case of Allen v. Conklin, supra, was decided in this court, the defendant Jonah Low put in an answer in. that case, in which he denied that complainant had any claim against the estate of Richard Low; and then made the following averments:

“This defendant further admits that there were large sums allowed the creditors of the estate of Richard Low by the commissioners on claims, more than enough to consume all of his personal property, and that there is now not only no personal property, but no real property, which belonged to Richard Low’s estate; that this defendant was allowed a large claim against the estate of Richard Low, and was himself the heaviest creditor of said estate, as appears by the report of the commissioners on claims in the probate court, and that no part of his claim was paid out of the personal property belonging to said estate; that by common consent among the legatees named in the last will and testament of Richard Low, deceased, this defendant deferred the collection of his said claim against the estate of said Richard Low during the lifetime of the wife of said Richard Low, and that after the death of the wife of said Richard Low, which occurred in 1894,. the executors of said estate filed their final account, showing the receipts and income from said real estate while it had been in their possession and control, and the amount expended by them in the care and support and maintenance of Eliza Low, the widow of said Richard Low, and for her last sickness and burial;.that a considerable amount of money was then due to the executors on account of expenses incurred by them in the care and maintenance of the said Eliza Low, as by the terms of the last will and testament of said Richard Low they were under obligations to do, she being the first and most important legatee named in said will; that after her death, and after the final account of said executors was rendered, and approved and allowed by the probate court of said county, a final settlement was had among the legatees named in the last will and testament of said Richard Low, except the children of David Low, — that is to say, those legatees named in said will who had remaining interest in the property after the support and maintenance of said Eliza Low, and after the payment of one dollar each to Thomas and William Low, sons of Richard Low, and the payment of the said $Í50, — all agreed together, and this defendant purchased of each his remaining interest in the lands described in said bill of complaint which belonged to Richard Low in his lifetime; that from thenceforward, this defendant held said lands as purchaser, and not as legatee or heir; that in making said purchase he was compelled to borrow money, and for that purpose executed a mortgage to Peter Van Vleck for the sum of $2,800, and borrowed that sum of the said Peter Van Vleck, which still remains unpaid.”

Defendant prayed that the bill might be dismissed.

Defendant Van Vleck put in an answer, in which he claimed that he in good faith loaned to Jonah Low the sum of $2,800, and took a mortgage upon the premises; and that Jonah Low borrowed this money for the purpose of paying the debts allowed against the estate and the money legacies, and to enable him to buy out certain other legatees who were interested in the land by the terms of the will. This defendant also prayed that the bill might be dismissed.

It will be noticed that both defendants in that proceeding were agreed that the money advanced by Van Vleck was used to pay the debts which had been allowed against the estate, including the claim of Jonah Low. There was no claim by the latter that he had any interest in the land prior to the mortgage given by him , to Van Vleck. He denied that Edith Allen had any claim whatever against his father’s estate, and both defendants agreed that the Van Vleck mortgage should have priority over any claim which might be due Edith Allen. It is apparent from these answers and the decree that the mortgage included, not only the amount of the claims which had been presented and allowed against the estate, but also a sum of money to enable Jonah Low to buy out the other heirs. It is also apparent from the decree that, while a claim was found in favor of Edith Allen, which could not be defeated by invoking the statute of limitations, it was the idea that she must stand on the same footing as the other creditors. The court then proceeded to determine what claims were allowed against the estate, and found as to those claims that they and the claim of Van Vleck must prorate in the proceeds of the sale of the land. The decree then provided:

“And complainant is decreed to stand prior in her rights under this decree, and the lien declared by it, to all other sums represented in said mortgage from Jonah Low to Peter Van Vleck upon the lands this lien is declai'ed upon, for the full amount hereby decreed to be her due.”

We think it clear the court was giving a history of these claims and the amounts thereof, not for the purpose of establishing the extent and order of the lien Van Vleck had under the mortgage, but for the purpose of indicating what claims should prorate with the claim of Edith Allen, and the other sums represented in the mortgage, with which she should not be required to prorate, but in relation to which her claim should have priority. The court did not decree that the sum which had been allowed to Jonah Low against the estate of his father should be paid to him; indeed, this he could not well do, for Jonah Low had stated in his answer that Van Vleck had loaned him $2,800, out of which this claim had been paid. Nor did the court undertake to fix the lien Van Vleck had upon the land by virtue of his mortgage, or the interest he would have in the fund if the land was sold. The court was not asked to do this, and the only reference made to the mortgage in the decree is the quotation we have just made from it, in which Edith Allen is decreed to stand prior in her rights to all other sums (except those with which she must .prorate) represented in said mortgage. Shortly after what is called the “original decree” was made, Jonah Low sold his interest in the decree to James Donovan, and, though he admitted in his answer that Van Vleck had loaned him $2,800, for which he had given him security on this land, and which had not been repaid to Van Vleck, and out of which his claim against the estate had been paid, it is now the claim of his assignee,'Mr. Donovan, that he should be paid that sum over again out of the fund realized upon the sale of the land. The circuit judge, supposing that what is called the original decree was res adjudicata, made a decree in accordance with the claim of Donovan. We have already shown he misapprehended that decree. The record shows the fund is not sufficient to pay the claim of Edith Allen and also pay tbe mortgage debt of Van Vleek. It should be applied to the payment of those claims so far as it will go.

It is urged here that the record does not disclose there was anything due on the mortgage, because the note was not introduced in evidence in the court below. The solicitor files the note in this court with an affidavit explaining why it was not done in the court below. Irrespective of this act, in view of the fact that it is averred in the answer of the assignor of Mr. Donovan that the amount of the mortgage is due and unpaid, the question need not give us much trouble.

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

The other Justices concurred.

       Rehearing denied May 29, 1900.


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    DERHAM v. DERHAM.
    1. Slander — Words Imputing Want op Chastity — Statements Actionable Per Se.
    A statement that plaintiff’s grandfather (her mother’s father) was a woman’s man, and that plaintiff was just like him, that her mother was like the grandfather, and that plaintiff was no better, is actionable per se, as charging plaintiff with consorting with men for immoral purposes.
    2. Same — Question for Jury.
    Where defendant stated that, if plaintiff had been a decent woman, he would have put her and her husband on his farm, but that she was not decent and respectable, the question whether the words imputed to plaintiff a want of chastity was for the jury.
    3. Same — Damages—Instructions.
    Under Act No. 216, Pub. Acts 1895, providing that in actions for slander plaintiff can recover only actual damages in respect to his property, business, or feelings, it was not error

      for the court, where there was no proof of damage to business or property, to modify an instruction that any amount awarded plaintiff for injury to her feelings should be specified separately from that given for damage to her “good name, fame, reputation, character, respectability, decency, and the like,” by informing the jury that the damages awarded must be limited to those suffered in respect to the feelings.
    Error to Shiawassee; Smith, J.
    Submitted January 9, 1900.
    Decided March 27, 1900.
    Case by May Rosa Ada Derham against William Derham for slander. From a judgment for defendant, plaintiff brings error.
    Reversed.

      John T. McCurdy (Edwin H. Lyon, of counsel), for appellant.

      A. L. Chandler, for appellee.
   Long, J.

The plaintiff is the daughter-in-law of defendant, and at the time of the commencement of this action lived with her husband on a farm owned by defendant. The action is trespass on the case for slander. The first count of the declaration alleges that on March 27, 1897, at the city of Corunna, Shiawassee county, the defendant spoke and published, in the presence of others, the following defamatory words of and concerning plaintiff, to wit:

“I knew her grandfather Link. He was a woman’s, man, and Rose is just like him. ■ Her mother, Henrietta Parkhurst, is like her father, and Rose is no better.”

The same words are charged in the same count as follows: “Afterwards, to wit, on the same day, and at the same time and place,” defendant spoke the following words of and concerning plaintiff:

“I (defendant meaning) knew her (plaintiff meaning) grandfather Link (meaning John Link, grandfather of plaintiff on her mother’s side). He (meaning John Link, plaintiff’s grandfather aforesaid) was a woman’s man. (thereby meaning that John Link, plaintiff’s grandfhther on her mother’s side, was in the habit of consorting with women of immoral habits and bad repute, and of having sexual and illicit carnal intercourse with said women), and Rose (plaintiff meaning) is just like him (meaning said plaintiff’s grandfather, John Link, and intending to charge said plaintiff with being a woman of unchaste and immoral character, and of having sexual and carnal intercourse with different and divers men other than her husband).”

The same count of the declaration charges the defendant with speaking and publishing the following:

“Her mother (meaning Henrietta Parkhurst, mother of plaintiff herein) is like her father (meaning John Link, father of plaintiff’s mother, said Henrietta Parkhurst, and grandfather of plaintiff, and intending to charge that said Henrietta Parkhurst was a woman of loose and immoral character, and guilty of having sexual and carnal intercourse with different and divers men), and Rose (plaintiff meaning) is no better (thereby meaning and intending to charge that said plaintiff herein was a woman of loose habits and immoral character, and was guilty of having sexual and carnal intercourse with different and divers men other than her husband).”

Another count of the declaration charged that on April 8, 1898, at Yenice, in said county, the defendant, in the presence of one Ralph Wriggles worth, used the following defamatory words of and concerning plaintiff:

“If Rose (plaintiff meaning) had been a decent and respectable woman (thereby meaning and intending to charge that plaintiff was a woman of loose character and immoral habits, and unchaste), I (defendant meaning) had intended putting them (meaning plaintiff and her husband, John H. Derham, son of William Derham, defendant herein) on the last 80 acres that I (defendant meaning) have purchased (meaning the 80 acres of land which defendant had just bought from Mr. Bingham), and build a house, and put up a barn, and set them (meaning plaintiff and her said husband) up in great shape; but she (plaintiff meaning) is not decent and respectable (thereby imputing to said plaintiff a want of chastity, and charging her with having sexual intercourse with different and divers men other than her husband), and that is why I (defendant meaning) did not do it.”

These words are charged in the same count without innuendo.

The cause was tried before a jury. On the trial plaintiff offered proofs under the first count of the declaration. The court ruled that, for want of an inducement, the count did not state a cause of action, and that the language complained of was not actionable per se, and refused to receive any testimony thereunder.

The court was in error in this. Inducement is not, in every case, essential to the sufficiency of a statement of a cause of action, but in those cases only where, without the facts contained in the inducement, the publication would not naturally and per se refer to the plaintiff, nor convey the meaning the plaintiff contends for, nor be construed as actionable. We think this language actionable per se. To charge that plaintiff’s grandfather was “a woman’s man,” taken in connection with the rest of the language, meant that he consorted with women of bad repute for immoral purposes; and to charge that the plaintiff was “just like him, and that Henrietta Barkhurst, her mother, was like her father, and Rose is no better,” meant that she consorted with men of bad repute for immoral purposes. The court should have admitted the testimony under this count.

The court admitted the testimony under the second count, but instructed the jury that the words were not actionable per se, and did not impute to the plaintiff any want of chastity. In this, we think, the court was in error. The words were charged with the proper innuendo, and whether, considering all the circumstances under which they were spoken, the defendant intended to charge the plaintiff with want of chastity, was a question of fact for the consideration of the jury. Loranger v. Loranger, 115 Mich. 681 (74 N. W. 228).

The court charged the jury that, if they found for the plaintiff, the damages must be stated separately;

“That which you may give her for injury to her feelings must be in one sum, * * * and, if you give any further damages to her good name, fame, reputation, character, respectability, decency, and the like, you should mention that in another sum separate.”

The court afterwards recalled the jury, and stated to them that he was in error in that part of the charge; that they could— ,

“Award such damages as she may have suffered in respect to her feelings; the one item of damages, and that only, — damages in respect to her feelings.”

There were no proofs given on the trial that the plaintiff had sustained any damages to her property, business, trade, profession, or occupation. The only allegation of damages is that,—

“By reason of the speaking, publishing, and uttering of said false, scandalous, malicious, and defamatory words, said plaintiff is separated from her said husband, her home is broken up and destroyed, and she has been and is greatly injured in her good name, credit, and reputation, and brought into public scandal and disgrace, and has been and is shunned and avoided by her neighbors,” etc.

Act No. 216, Pub. Acts 1895, § 1, provides: “In suits brought for the recovery of damages for libel or slander in this State, the plaintiff shall be entitled to recover only such actual damages as he may have suffered in respect to his property, business, trade, profession, occupation, or feelings.” We therefore think that the court was not in error on the question of damages 'in giving this modified charge.

For the errors pointed out, the judgment must be reversed, and a new trial awarded.

The other Justices concurred.


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      In re GRAFF’S ESTATE.
    1. Estates op Decedents — Surviving Wipe —Lipe Tenant — Tenants in Common.
    A wife who, after the death of her husband, continues by common consent to occupy the homestead without assignment of dower, the children remaining with her as long as they choose and returning home at pleasure, holds the premises, not as life tenant, but as tenant in common with the children.
    2. Same — Homestead—Rent —Administration — Taxes and Repairs.
    While a widow cannot be charged with the rent of the homestead, which, after her husband’s death, she continues to occupy with the children, under the provisions of 3 Comp. Laws 1897, § 8929, permitting a widow entitled to dower in-lands of her husband to occupy the same, without assignment of dower, so long as those in interest do not object, neither can she, as administratrix, be allowed to charge the estate for taxes paid and repairs made during such occupancy.
    3. Same — Delay in Filing Account — Charges Disallowed.
    A widow who, without cause, delays for a long term of years the filing of her account as administratrix of her husband’s estate, during all of which time she occupies, without payment of rent, the property belonging to the estate, cannot, upon a sale for distribution being ordered, charge the fund arising from such sale with the funeral expenses, expenses of the last sickness, amounts paid for taxes and repairs, probate fees, insurance moneys, 'and other like expenses, with interest, incurred during'She long period of her occupancy.
    Error to Wayne; Lillibridge, J.
    Submitted January ■ 31, 1900.
    Decided March 27, 1900.
    Mary Graff appealed from an order disallowing certain items in her final account as administratrix of the estate of Joseph Graff, deceased. The order of the probate court was reversed in the circuit, and William J. Graff and others, representing the estate, bring error.
    Reversed.

      James Sivan, for appellants.

      Joseph B. Nolan (James H. Pound, of counsel), for appellee.
   Long, J.

It appears that Joseph Graff died in 1868, and Mary Graff, his widow, was appointed administratrix of his estate on June 21, 1870. The property coming into the hands of the administratrix consisted of'a house and lot in the city of Detroit, which was subsequently sold for the sum of $1,410. There was no other property. Mr. Graff left surviving him, besides his widow, four children. The children continued to live in the house with their mother for several years, the last one living there until 1881. The widow looked after the property, kept it in repair, and paid the taxes, water-rates, and insurance, until 1894. During all this time no one questioned the right of the widow to occupy it as a home. She made some considerable repairs on the house during the time, and for a period rented a part of it. She loaned some money to one of the sons on his note. When it became due, she sued it, and levied on his interest in the house and lot, and on the sale bid it in, and on the final sale of the premises received for that interest $130. During all these years she filed no account as administratrix. After the sale of the property, she presented to the probate court her final account, in which she charged herself with about $100 rent of the house, and also with the cash received on the sale of the property, $1,260, less $130, paid the sheriff of Wayne county for release of levy on William J. Graff’s share of property; making her total account for moneys received from the property about $1,230. She credited herself in this account with all the moneys paid for State, county, city, and other taxes for all the years from and including the year 1868 to and including the year 1894, with interest on each payment from time paid to date of filing account; also with repairs and interest thereon, fees paid county treasurer and interest thereon, cash paid for indemnity bond on sale of the premises, attorney’s fees, printing, etc. This account was presented to the probate court, and that court found as follows: “Examined and allowed December 9, 1898, with balance .of $856.83 due from the administratrix, in addition to the sum of $130 credited as paid on levy against interest of William J. Graff.” From this finding the administratrix appealed to the circuit court. The cause was there heard before the court without a jury, and the court found as follows:

“1. That the various amounts paid for taxes by said administratrix, with the interest thereon from the time of payment, as more fully set forth in said account, be, and the same are hereby, allowed to said administratrix in full.
“2. That the various amounts paid for necessary repairs by said administratrix, with the interest thereon from the time of payment, as more fully set forth in said account, be, and the same are hereby, allowed to said administratrix in full.
“3. That the probate fees paid to the county treasurer, in the sum of $15, by said administratrix, with interest thereon from the time of said payment, set forth in said account, be, and the same are hereby, allowed to said administratrix in full; also the printing bill, with interest from time of payment, for the affidavit of publication in re petition for appointment of administratrix.
“4. That the item in said account for the legal services of Joseph R. Nolan, in the sum of $250, be, and the same is hereby, allowed in full, as a reasonable and proper charge against said estate; and also the items in said account marked, ‘.¿Etna Indemnity Company, for bond on sale of real estate, $30; Detroit Free Press, advertising, display, $17.62; DetroitLegal News Company, legal printing on sale, $18.15; Charles Baines, auctioneer, $10; M. C. Martin, printing sale sign, $1.50; abstract to date, C. M. Burton, $4.20; abstract, previous work on same, $14; Detroit Legal News, printing on license to sell, $4.40; and affidavit of publication in re appointment of administratrix, $4.45,’ — with interest thereon from the .time of payment, be, and the same are hereby, allowed to said administratrix as proper charges against said estate.
“5. The court having permitted an amendment of said account at the trial thereof to include therein the expenditures o£ said administratrix for insurance and water taxes, the same are hereby allowed to said administratrix as follows : Total insurance paid on premises by administratrix to 1894, $96; total water taxes, as shown by receipts of water office, paid by administratrix, $149.50.
“ 6. The court allows the funeral bill at $25, with interest from January 1, 1869, and expenses of last sickness at $5, with interest from same date.
“It is further ordered that said administratrix be charged with the full amount of rents received by her from the subtenants of the premises by her sold, as more particularly appears in said account, and that said amount be deducted from the amounts heretofore allowed said administratrix.
“ It appearing to the court, after computing the various allowances made in favor of said administratrix, and deducting therefrom the credits for money received from the sale of the property and rents received, that there will be a balance in favor of said administratrix, and the administratrix demanding no affirmative decree against the estate, it is ordered and decreed that said administratrix be, and she is hereby, discharged as such administratrix, and her bond given as such administratrix in this case is hereby canceled. It is further ordered that a certified copy of this order or decree be filed in the probate court for said county of Wayne.”

From this finding the heirs have appealed.

Some question is raised by the appealing parties as to the rights of the widow in the premises. It is their contention that she was a life tenant, and therefore bound to pay the taxes and make repairs on the premises; or, in the words of counsel:

“We contend that the interest the widow had in the property was merely the right of dower, to wit, the use during her natural life of one-third part of all the lands whereof her husband was seised at any time during the marriage (3 Comp. Laws 1897, § 8918); and that, by license or permission from the heirs, her dower interest was extended to embrace the whole of the realty of which her husband died seised, thereby making her a life tenant of the whole, instead of a one-third; and that, in view of this position we take, the allowance or nonallowance of the items in question should be governed by the laws relative to life tenants. ”

It is therefore contended that the court erred in allowing all the items for taxes, repairs, water taxes, and insurance, with the years’ accumulated interest thereon. The case of Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584), is cited in support of this claim. That case does not support the contention of counsel. The contention there was whether the life tenant created by will had accepted the estate thus created. It was held that “the rule that a life tenant in possession, to whom taxes are assessed, cannot cut off the remainder-man, and acquire the title in fee, by allowing the premises to be sold for taxes, does not extend to a devisee of a "life estate who has re. nounced the devise.” It was held, however, that “the devisee of a life estate in remainder cannot, if he accepts such devise, obtain title in fee to the land by purchase at a tax sale for taxes assessed during the incumbency of his predecessor in title, and such purchase at most only entitles him to reimbursement from the latter, or to contribution from the remainder-men, to whose benefit the purchase inures.” There was no such relation existing between the widow and these children in the present case. There was no will, and the widow and children continued to occupy the premises jointly so long as any of them chose, and when the children left, one by one, the widow was left in possession. The children returned at times, and the house was at all times kept open for their return; and it is apparent that it was always regarded as the home of any of them who might wish to return. The widow’s dower was never assigned, and she continued to reside there by the consent of all of them, so far as appears by this record. 3 Comp. Laws 1897, § 8929, provides:

“When a widow is entitled to dower in the lands of which her husband died seised, she may continue to occupy the same with the children or other heirs of the deceased, or may receive one-third part of the rents, issues, and profits thereof, so long as the heirs or others interested do not object, without having the dower assigned.”

The widow was not a life tenant under the circumstances here stated. She had a homestead and dower interest in the premises, and was, therefore, a tenant in common with the children.

It is conceded that she made some repairs on the premises, and that she paid the taxes for the years charged in her account. It appears that she let these matters run along from 1870, when she took charge of the estate, until 1898, a period of 28 years, and then charges interest on these payments of taxes, expenses of repairs, etc., and in this way proposes to take the whole property to herself by accumulations of interest. It was her duty as administratrix, had there been debts, to close the estate at least within four years and six months. Hoffman v. Beard, 32 Mich. 222. While her failure to do this would not prevent the sale of the estate for distribution (Biddle v. Wendell, 37 Mich. 452), yet the administratrix should not have been permitted to carry the estate along without a final report and settlement. There were no debts allowed against this estate, so far as shown by this record; and there seems to have been no reason why the estate could not have been closed, and the final account of the administratrix filed, within the first 18 months after her appointment as administratrix. It appears in the final account of the administratrix that she paid taxes in 1868 to the amount of $9.82. She charges interest on this amount from that time to 1898, and the interest charge amounts' to $17.15, or almost double the amount of the taxes paid. As another illustration, we find a charge: “N ecessary repairs to the homestead, $50. Interest on $50 from January 1, 1873, $76.50;” making a total of $126.50. So all through this account we find the interest charge on more than half the items almost double the original charge. The widow was furnished with a home without charge. The only rent she charges herself with is that collected from tenants, amounting in all, with accumulated interest, to about $100. She cannot be allowed to have the premises rent free, and then charge items for taxes and repairs made. It is true that she could not be charged with the rent of the premises, except such as she received from other parties, and that an action would not lie against her for use and occupation. Fenton v. Miller, 116 Mich. 49 (74 N. W. 384, 72 Am. St. Rep. 502), and cases there cited. On the other hand, she should not be permitted to charge for taxes paid and repairs made during that time. When she made the petition for the sale of the premises for distribution, she alleged in her petition that there were no debts against the estate, and she now seeks to bring the estate into her debt to an amount more than equal the price the premises sold for. We think the only charge she can make against this fund is the expense of the sale for distribution. It will be so ordered.

The judgment of the circuit court will be reversed, and the case certified to the probate court to carry out the judgment here, with costs of this court and the court below in favor of the contestants.

The other Justices concurred.


text:
    BRAINARD v. FEATHER.
    Estates of Decedents — Claims—Subrogation.
    Defendant and Ms wife executed notes to complainant. Defendant’s wife died, and one-half her estate descended to defendant, who mortgaged the same to complainant upon surrender of such notes. Defendant bought other interests in the estate from complainant and other heirs, securing the ■ purchase price thereof by land contracts. Complainant, by foreclosure of the mortgage, termination of the land contracts, and purchase, became seised of the entire estate. Administration was had upon the wife’s estate, and defendant presented such notes as a claim against the estate, and such claim was allowed. Held, that complainant was entitled to be subrogated to all the rights of defendant as claimant against such estate.

      Appeal from Washtenaw; Kinne, J.
    Submitted January 31, 1900.
    Decided March 27, 1900.
    Bill by Nancy A. Brainard against Joseph Feather and Matthew Seeger, administrator of the estate of Caroline Feather, deceased, for subrogation to the claim of Joseph Feather against the said estate. From a decree granting only a part of the relief sought, complainant appeals.
    Reversed.

      Randall & Jones, for complainant.

      Arthur Brown and M. J. Lehman, for defendants.
   Long, J.

It appears that in 1889 the complainant held three notes given by Joseph Feather and Caroline Feather, his wife, amounting to $1,800. Mrs. Feather was the owner of 72 acres of land, upon which the parties.resided. She died in May, 1890, leaving no children; and her estate descended one-half to her husband, Joseph Feather, and the other half to her brothers and sisters. Soon after Mrs. Feather’s death, complainant urged defendant Joseph Feather to pay the amount of the notes held by her. An arrangement was made by which he secured the payment of this $1,800 to complainant by giving his own note, and a mortgage upon his undivided one-half interest in the said 72 acres of land left by Mrs. Feather. The notes given by Joseph Feather and his wife to complainant were one of $500, one of $100, and one of $1,200. These notes were surrendered by complainant to Joseph Feather on the giving of the mortgage on June 25, 1890. On this same date Joseph Feather purchased from .complainant her one-eighth interest in the said 72 acres of land, to which she was heir as a sister of Caroline Feather, deceased. The purchase price of this one-eighth interest was $675, and was secured by land contract. Feather paid the interest on the mortgage and on the land contract to June, 1894.

In June, 1895, complainant filed a bill to foreclose her mortgage. Joseph Feather was made the party defendant. He did not answer the bill, and a decree of foreclosure was granted, and the premises sold August 12, 1896. The complainant became the purchaser of the half interest covered by this mortgage. Joseph Feather had also bought the one-eighth interest in the 72 acres of another sister of his deceased wife. At the commencement of the foreclosure proceedings by complainant, she gave notice of the termination of the land contract with Feather. The sister, who had given a similar contract for her interest to him, also gave notice of the termination of her contract, for nonpayments thereunder. A bill for partition of the premises was filed by another sister. This partition proceeding resulted in a decree by which Feather was given one-half of the 72 acres, and the brothers and sisters given one-eighth each, or the other half interest. The title then stood as follows: The complainant had the half which had descended to Feather, by virtue of the decree of foreclosure of her mortgage given by him to secure the $1,800 in notes. She also had a one-eighth interest under the partition, the title to the other interests being in her brothers and sisters. In the spring of 1896 she purchased their interests, and entered into possession of the whole 72 acres. '

During this time no administration had been had upon the estate of Caroline Feather. In the fall of 1896 one Doane, claiming to be a creditor, presented a petition to the probate court for the appointment of an administrator, and one was appointed. In the course of that administration, Joseph Feather presented, as a claim against that estate, the three notes he had received from the complainant, and for which he gave the $1,800 mortgage. His claim was allowed at $1,300. The contest over that claim, was appealed to this court. Feather v. Feather’s Estate, 116 Mich. 384 (74 N. W.-524). It was stated in the opinion in that case that:

“Claimant presented for allowance a claim against the estate of his deceased wife. The claim was for money paid in discharge of a note executed by deceased and claimant. Claimant asserts that he was a mere surety, and that the obligation was the obligation of deceased. ”

The jury in that case found in favor of the-claimant on that issue, and the judgment was affirmed here. It appeared in that case that Mrs. Brainard (the complainant here) disputed this claim, and testified that the loan of $1,200 was made to Mr. Feather; but it was said of her testimony by this court:

“There is testimony tending to impeach her statements; the probate judge having been called to testify that she testified in the probate court that' she had loaned the money to Mrs. Feather, and that the note was given by both Mr. and Mrs. Feather.”

The present bill is filed by complainant, asking to be subrogated to the claim made by Joseph'Feather against the estate of his wife, and to enjoin him from enforcing his claim against said estate. The cause was heard in open court, and the court below decreed that Joseph Feather be restrained from enforcing the claim against the undivided one-half interest of said estate which was mortgaged by him to pay the claim to complainant; but the decree provides as follows:

‘ ‘ Provided, that nothing in this decree is to be so construed as to estop or restrain the defendants, or either of them, from petitioning the probate court of said county for an order to sell the real estate of said deceased which was not mortgaged by said Joseph Feather to said complainant, or set off to him by the commissioners in partition; and nothing in this decree is to be construed as intending in any way to estop or restrain the defendant Joseph Feather or his assigns from collecting said claim against the estate of Caroline Feather out of, from, or against the lands of said deceased not mortgaged by said Joseph Feather to complainant, or set off by said commissioners in partition to said Joseph Feather as aforesaid, and coming into possession of said complainant by virtue of said partition and foreclosure proceedings; and nothing is to be so construed as to restrain in any way the said defendants, or either of them, or the probate court of said county, from taking 'the necessary proceedings in said probate court, and in the estate of said Caroline Feather, deceased, now pending in said probate court, for the payment of said claim: Provided, however, that the part of said estate which was mortgaged by said Joseph Feather to complainant, and set off to said Joseph Feather by said commissioners in partition, be not used for that purpose. And it is further ordered, adjudged, and decreed that the said complainant do recover her costs in said suit to be taxed. ”

Complainant has appealed from this decree.

We think the court below was in error in this disposition of the case. The bill asks that the complainant be subrogated to all the rights of Joseph Feather as claimant against the estate of his wife. It is apparent that, when the complainant received the mortgage of $1,800, she regarded the notes as paid, and not as a subsisting lien against the estate of Mrs. Feather. Complainant at that time owned not only the mortgage on the undivided half interest of the Feather farm, but she also had a quarter interest in the other half of the farm. She subsequently became the owner, of this entire half, and she apparently purchased it in reliance upon the fact that these notes were paid, and the estate released from any further obligations thereon. Joseph Feather was legally liable oh the notes. They were paid by him by the giving of the mortgage, and he cannot now make a claim upon them against the unmortgaged half of the farm. He must have regarded them as paid, so far as the estate was concerned, for he entered into a contract to purchase certain interests in the estate after the mortgage was given. He paid interest on the mortgage, and also on this contract of purchase. He cannot now be permitted to set up this claim against the estate.

The decree below must be reversed, and a decree entered here in accordance with the prayer of complainant’s bill, with costs of both courts in favor of complainant.

The other Justices concurred.


author: Montgomery, C. J.

text:
    SHEARER v. GIBSON.
    Statute of Frauds — Contract for Sale of Land — Part Performance.
    Where, after a parol contract for the sale of a half interest in land had been entered into, the rent of the property was divided between the parties, and the vendee paid a portion of the cost of improvements, there was such a part performance as would take the contract out of the statute of frauds.
    Appeal from Wayne; Davis, J., presiding.
    Submitted January 31, 1900.
    Decided March 27, 1900.
    Bill by Joseph J. Shearer against Charles H. Gibson for the cancellation of certain mortgages. Defendant filed an answer in the nature of a cross-bill, praying for the foreclosure of said mortgages. From a decree for defendant, complainant appeals.
    Modified.

      Alfred Lucking, for complainant.

      Edward J. Bowman (George E. & M. A. Nichols, of counsel), for defendant.
   Montgomery, C. J.

In March, 1895, the complainant was, and had been for several years, the owner of land located in the township of Plymouth, in Wayne county,— subject, however, to two mortgages thereon, which were at that time held by Eliza H. Bird. These mortgages were originally given to secure the payment of $3,000 and $500, respectively. The complainant was also at this time the owner, under a land contract made in 1885 by A. S. Loomis, of Ypsilanti, of 28 acres of land in the township of Greenfield, Wayne county, which was situated in the suburbs of Detrpit, and which was regarded in 1895 as being very váluable for platting into city lots. On this land contract, which was originally for $5,000, complainant had paid $500 'principal, and interest a,t the rate of 7 peí cent, for 10 years, aggregating about $3,150; leaving a balance due on the same in 1895 of $4,500. At about this date defendant agreed to purchase of complainant a one-half interest in the Greenfield property for $4,500, of which defendant paid to’complainant $780.15 in cash, and paid to the holder of the Bird mortgages the amount owing on them, and took an assignment of them to himself. The amount of this payment, added to the cash paid, made up the exact sum of $4,500. The amount remaining unpaid on the land contract was $4,500. The time for the payment of this was extended to October, 1900, and the rate of interest reduced from 7 per cent, to 6 per cent. This was done by a writing signed by Mr. Loomis, in which he agreed to execute a new contract to Mr. Shearer and Mr. Gibson.. We are satisfied the assignment of the Bird mortgages was made to defendant to secure the performance by complainant of the obligation still resting upon him to pay $4,500, purchase price, to Loomis.

The defendant’s counsel contend that the contract between complainant and defendant for the sale of a one-half interest in the land contract cannot be enforced or recognized, because, resting in parol, it is too indefinite and uncertain. It appears that, after the contract was made, the rent of the property was divided, and that the defendant paid a portion of the cost of improvements, so that there was a part performance of the contract, — in effect, a joint occupancy. The only circumstance that has occasioned doubt arises out of the understanding as to-the security to defendant for the $780 advanced in cash. It was not expected that this would be repaid, but it was intended that the complainant would pay the $4,500 to Loomis; and defendant, by the assignment of the Bird mortgages to him, had security for the performance of this obligation only partially. The defendant suggested a new mortgage to cover the amount of the unpaid purchase price, but complainant wrote in reply, suggesting that a writing giving to defendant a lien on the half interest of complainant in the 28 acres would be sufficient security. It is contended that the minds of the parties never met in this agreement, but we find that defendant acquiesced in this suggestion, and afterwards treated the 28 acres as joint property. True, the written agreement was never executed, but the explanation of this fact is found in certain negotiations between Loomis and defendant for an exchange, by which Loomis was to acquire defendant’s interest in the 28 acres.

Although the testimony is conflicting, we find that Shearer has contributed $3,650 to the purchase of the 28 acres; that Gibson has contributed $4,500; that they are equal partners in the venture, subject to the right of each to a return of his capital contributed out of the first money realized; that it is the duty of Shearer to pay the Loomis claim of $4,500, and that Gibson holds the Bird mortgages as security for the payment by Shearer of the Loomis claim of $4,500; that complainant should execute an agreement in writing binding his half interest in the 28 acres as security for the performance of his obligation to pay the $4,500 to Loomis.

Neither the bill nor the answer sets up the contract as we have found it. We are disposed to permit an amendment of the bill, and direct a decree in accordance with this finding. Under the circumstances, no costs will be awarded for the proceedings in the court below. Complainant will recover costs of this court.

The other Justices concurred.


text:
    ADA DAIRY ASSOCIATION v. MEARS.
    1. Stock-Subscription Agreement — Right op Action por Nonpayment.
    An agreement whereby a dairy company undertook to build a butter factory for a specified sum, in consideration of certain subscriptions, for which stock in a corporation to be formed by the subscribers should be issued, all moneys collected after' payment of the contract price to be used as a working capital for the corporation, is a contract upon which the company, having fully performed on its part, may sue for the amount of the subscriptions, without waiting until all the stock necessary to incorporate is subscribed and paid.
    S. Same — Conditions—Parol Testimony.
    Parol' evidence that a subscriber to corporate stock was told ' that he might withdraw his subscription if, on consultation with another, to whom he was referred, he decided that he did not care to subscribe, and that he signed the subscription with such understanding, and, after making the inquiries, requested that his subscription be withdrawn, is not objectionable as contradicting the terms of a written contract, since such evidence tends to show that no completed contract ever existed..
    3. Same — Pleading—Denial op Execution — Justices’ Courts.
    Under 1 Comp. Laws 1897, §§ 767, 826, providing that the execution of written instruments sued on in justice’s court, and filed with the justice, shall not be denied, except by notice under oath at the time of pleading, a defendant in an action on a stock-subscription agreement, not having served notice under oath of his intention to deny the validity of the agreement, was not entitled to prove that his signature was conditional on his right to withdraw if he desired, and that he had elected to withdraw before suit.

      4. Same — Genuineness'op Signature.
    Though defendant admits the genuineness of his signature to a written agreement in suit, a denial of execution is necessary if he seeks to prove that the writing was never delivered as a completed contract.
    Error to Kent; Davis, J., presiding.
    Submitted January 31, 1900.
    Decided March 27, 1900.

      Assumpsit by the Ada Dairy Association against William Mears to recover the amount of a stock subscription. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Walker & Fitz Gerald (Myron H. Walker, of counsel), for appellant.

      Judkins & Perkins, for appellee.
   Montgomery, C. J.

This is an action of assumpsit, commenced in justice’s court. The action is based on a stock subscription and an agreement entered into with the True Dairy-Supply Company, which agreement has been assigned by the True Dairy-Supply Company to the plaintiff. By the terms of this agreement, the True Dairy-Supply Company undertook to build a butter factory for the price of $3,300, and to supply a competent butter maker for one year, if desired. The several subscribers to the agreement, of whom defendant was one, undertook severally to pay stated subscriptions; and the subscribers, between themselves, agreed to incorporate under the laws of the State, and to fix the aggregate amount of stock at not less than the amount subscribed, and at the price of $10 per share. It was also provided that extra stock to exceed the contract price could be subscribed, and that all money collected after paying the contract price should be used as a working capital. A corporation was organized with an authorized capital stock of $4,000.

At the close of the evidence, the defendant contended that, as the stock was not all paid in, there could be no recovery, in any event; basing his contention on International Fair & Exposition Ass’n v. Walker, 88 Mich. 62 (49 N. W. 1086). The circuit judge ruled against the defendant on this question, and, we think, rightly. The original agreement was not only a stock subscription, but something more. It was a contract between the True Dairy-Supply Company and the various subscribers. Under the terms of this contract, a right of action accrued to the True Dairy-Supply Company, which was assigned to plaintiff. Furthermore, it is evident* that the parties contemplated that the organization might take place before the stock was all subscribed, which should be fixed in the articles of incorporation.

The defense prevailed, and upon testimony offered to show that the defendant never became a party to this contract. The plea of the defendant was not accompanied by an affidavit denying the execution of the written instrument, which was declared upon and filed with the justice of the peace. The notice given was that the defendant was induced to sign the agreement by false and fraudulent representations and statements, and that on the following day he withdrew his subscription, and was relieved from all obligation, and that the subscription was then and there canceled, and also that he never subscribed for any of the stock of plaintiff.

The evidence in behalf of the defendant tended to show that he was approached by a Mr. Jewett, the agent of the True Dairy-Supply Company, and asked to subscribe for stock; that he stated that he knew nothing about the business, and did not care to subscribe without further information; that he was then told by Mr. Jewett that a Mr. Collar was acquainted with results attained at another factoiy put up by the supply company, and Jewett asked him to see Mr. Collar and learn the facts, and told him that if he would sign the contract, and then see Mr. Collar, if Mr. Collar did not give the results as he (Jewett) had given them, he could take his name off; — that it would not be binding; that he signed the agreement after this conversation, and on the next day saw Mr. Collar, and ascertained that the results were not as represented, and that he immediately saw Jewett, and directed him to take his name off the paper, and that Jewett then agreed to do so.

Plaintiff contends that this testimony was not admissible —First, because it tends to vary the terms of a written instrument; and, second, because no affidavit denying the execution of the instrument was filed with the justice, or has since been filed. As to the first position, we think that the testimony tends to show an understanding between Mr. Jewett and the defendant to the effect that the contract should not be binding until the defendant had seen Mr. Collar,' and verified the statements which Jewett had made to the defendant. This testimony does not tend to vary the terms of a written agreement, but, rather, to show that no written agreement ever existed. As to this feature, the case is very like Pym v. Campbell, 6 El. & Bl. 370. The rule is there well stated by Erie, J.:

“I grant the risk that such a defense may be set up without ground, and I agree that a jury should therefore always look on such a defense with suspicion; but, if it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those so signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible.”

As we have seen, however, the defense in such a case goes to the existence of an agreement, and, unfortunately for the defendant, the state of the pleadings was such that he should not have been permitted to deny the existence of an agreement. 1 Comp. Laws 1897, §§ 767, 826.

It is said by defendant’s counsel that the defendant cannot deny, that he signed the instrument, because his signature thereto is genuine, and that his defense rests upon other grounds. But the failure to deny the execution of the instrument affects, not only the signature, but the delivery of the writing as a completed contract. People v. Johr, 22 Mich. 461; Union Central Life Ins. Co. v. Howell, 101 Mich. 332 (59 N. W. 599), and cases cited in the reporter’s notes.

It is suggested in the brief of counsel for the defendant that the defense was that of fraud. It might be sufficient to say that the theory of the charge was not so limited; but, further than this, we think the case did not take that color. The plaintiff offered to show that the statements made by Jewett to the defendant .as to the workings of the Middleville factory were true. This was excluded on the ground that the sole concern of the jury was to ascertain what Collar said. So it would appear that it was not the theory that the representations were fraudulent, but that, because Collar did not support them, defendant was at liberty to assert that the agreement never became binding upon him.

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

The other Justices concurred.