author: Steere, J.

text:
    PURDY v. LAW.
    1. Sales — Definition—What Constitutes a Sale.
    A sale is a parting with one’s interest in a thing for a valuable consideration.
    2. Frauds, Statute of — Brokers—Commissions—Exchange of Property — Sales.
    An exchange of property, where there was a fixed price for the property transferred by each party, was a sale of real estate within the meaning of the statute of frauds (3 Comp. Laws 1915, § 11981), requiring agreements to pay commission for or upon the sale of any interest in real . estate to be in writing.
    3. Same — Compliance With Statute.
    The mere recital, in a written agreement for the exchange of real estate, that commission agreement between defendant and plaintiff has been agreed upon, without disclosing what that agreement was, held, not a compliance with the provisions of the statute of frauds, so as to entitle plaintiff to recover in an action therefor.
    On power of legislature to require contracts for commissions for finding purchaser for real estate shall be in writing, see note in 33 L. R. A. (N. S.) 973.
    On power of legislature to prohibit offering another’s real estate for sale without written authority, see note in 12 L. R. A. (N. S.) 707.
    On necessity that authority of agent to purchase or sell real property be in writing to enable him to recover compensation for his services, see note in 44 L. R. A. 601; 9 L. R. A. (N. S.) 9S3.
    Error to Livingston; Collins (Joseph H.), J.
    Submitted October 7, 1920.
    (Docket No. 53.)
    Decided December 21, 1920.
    Assumpsit by Jere T. Purdy against Fred C. Law for commissions on the sale of real property. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      William H. ShieJc and Louis E. Howlett, for appel- ' lant.

      Francis J. Shields, for appellee.
   Steere, J.

In February, 1919, plaintiff Purdy was and had been for some years engaged in the real estate business in the city of Detroit. In the line of his business he assisted in a transaction by which defendant Law exchanged two lots located on Breckenridge street in the city of Detroit for a farm owned by Mrs. Crissman, located in Green Oak township, Livingston county. Purdy brought this action to recover from Law $420 for his services in bringing about the exchange, claiming a commission of 3% on $14,000, stated as the agreed valuation at which defendant’s two lots were exchanged.

It appears that Purdy had talked with Law about his Breckenridge street lots and ascertained that he was desirous of disposing of them/ and that he might be inclined if satisfactory opportunity presented itself to exchange them for farm property. Purdy also saw a notice in a Detroit paper that Mrs. Crissman owned a farm of 120 acres in Livingston county which she wished to exchange for property in the city of Detroit. After interviewing her on the subject he brought the two parties together and negotiations were had which resulted in the following written agreement between the contracting parties, drawn up by him:

“Detroit, Mich., Feb. 25, 1919.
“APPLICATION TO PURCHASE.
“..............hereby apply to J. T. Purdy to purchase the following described property located in Green Oak township, Livingston county, Mich., owned by Mrs. Marie Crissman, consisting of 120 acres, more or less, for one thousand, and a further consideration lots 53 and 54, located south side of Breckenridge street, city of Detroit, known as Nos. 333-3331/2 and 335 Breckenridge street, city of Detroit, subject to mortgage of $2,600, which Mrs. Crissman assumes and agrees to pay.
“It is agreed that............to receive a marketable abstract written to date, all taxes and assessments on this property paid each party, deal to be closed as soon as papers can be prepared, time not to exceed ten days from date.
“Further conditions of this application are
“Commission agreement between Fred Law and J. T. Purdy has been agreed upon.
“Terms, price and conditions of sale subject to the approval of J. T. Purdy.
“Mrs. Crissman assumes payment of $100 commission to J. T. Purdy.
“Marie C. Crissman (L. S.)
“Fred Law (L. S.)”

This agreement was subsequently carried out by the contracting parties and the exchange completed by execution and delivery to each other of proper deeds. Plaintiff received a commission of $75 from Mrs. Crissman. Of the transaction Purdy testified in part:

“I also was attending both parties, made this agreement for both parties, that is, I was representing both Mrs. Crissman and Mr. Law. I advised Mr. Law to make her a proposition giving her $1,000, the difference between his equity and her farm. The deal was consummated on that basis. That accounted for him paying her $1,000. I brought the parties together and was authorized by Mrs. Crissman to exchange her farm and by Mr. Law to exchange his city property.”

Mrs. Crissman paid him a commission, in relation to which he said:

“The reason that I could take her money for assisting her in the deal and yet advise the man she was dealing with to increase his property valuation $1,000 was that she has already inflated her valuation; it was not a crooked deal, but an inflated deal. I know I was justified in taking $75 of Mrs. Crissman’s money and then advising the man who was selling his property to her to inflate the valuation of his property $1,000. I know it is fair and honest. It was a matter of right between the parties to take the commission both ways and I knew that I could advise one party or the other to increase their valuation and it would be fair and honest deal.”

Other than as appears in the contract quoted there was no written agreement between any of the parties as to a commission to plaintiff. Asked why he did not have a written agreement with defendant about a commission, he replied:

“The reason I did not embody it in the agreement was that I had too much confidence in Fred Law to put it in an agreement.”

Differences arose between these parties on the subject of a commission and, Law refusing to pay the amount Purdy claimed, this action was brought.

It was the opinion of the trial court that there was no agreement in writing which took the claim out of the statute of frauds, that whatever understanding or agreement may have been had between the parties: rested entirely in parol and was void under section 11981, 3 Comp. Laws 1915, which so far as material here provides as follows:

“In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say: * * *
“5. Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate.”

The questions raised and argued in counsel’s brief are whetner or not the statute of frauds applies to the facts in this case and, if so, are the terms of the written agreement sufficient to meet its requirements?

Upon the first proposition it is urged by plaintiff’s counsel that the statute is only applicable to agreements, promises or contracts to pay a commission upon a sale of real estate, which would not apply to a promise to pay for services in helping to make an exchange of realty.

To this point it is argued that the statute invoked by defendant is in derogation of the common law and should be strictly construed; that a sale is founded on a money consideration and contemplates a transfer of property and the title thereto from one to another in consideration of money paid, or to be paid, by the vendee to the vendor, as distinguished from an exchange or barter, where one commodity or property is exchanged for another without involving any agreement as to price or money payment. Here there was a fixed price asked for the property transferred by each party and acceptance by the other, with a money consideration of $1,000 to Mrs. Crissman for her farm “and a further consideration” of the two city lots conveyed to her at the agreed valuation.

“A sale is a parting with one’s interest in a thing for a valuable consideration. This is what is generally understood by the word, and in every sale there is a transfer or change of title from the vendor to the vendee.” Western Mass. Ins. Co. v. Riker, 10 Mich. 279.

Still more directly in point, it is said in Huff v. Hall, 56 Mich. 456:

“The claim that a transaction is not a sale where the consideration is land and not money, is no better founded. * * * But every transfer of property for an equivalent is practically and essentially a sale, and the deed of bargain and sale is almost universally used to convey lands so transferred. Money’s worth is a valuable consideration, as much as money itself. If the parcels are honestly valued, the value agreed upon may be usually assumed as the price.”

The innominate mixture of provisions which plaintiff wrought when filling out his form entitled “Application to Purchase” to his liking, is a somewhat confusing apology for an agreement between contracting parties for sale or exchange of real estate; but the subscribing parties consummated the deal it referred to, and its other provisions, including “the approval of J. T. Purdy,” are material only for their bearing on the interjected announcement that “Commission agreement between Fred Law and J. T. Purdy has been agreed upon,” now claimed by Purdy to be a “note or memorandum” in writing adequate to satisfy the statute of frauds.

It is undisputed that the claimed commission agreement agreed upon was not in writing. Purdy testified, under objection, that it was made on the street “in the summer two or three years ago,” at his first meeting with Law, saying: “On the first day I ever met him, within ten minutes after I saw him, we talked three per cent., but that was a year before I inflated the price.” He did not, however, care to embody that oral agreement made “two or three years ago” in the written instrument he drew up on February 25, 1919, because, as he stated, he “had too much confidence in Fred Law” to do so. He explained that he inserted the reference to it now relied on at the suggestion of Mrs. Crissman, whose assumption of a commission to him of $100 he took pains to insert. As he tells it, he had been in the real estate business for 11 years, drew up the papers himself, had in mind his oral agreement for a commission with Law, intentionally omitted to put any note or memorandum of what it was in writing, and only made the scant reference to it appearing in the instrument he drew because Mrs. Crissman suggested it. It cannot be said that its omission was an oversight, or assumed that with his experience as a real estate agent he did not know what was required to entitle him to an enforceable right to a commission under the law on that subject.

The provisions of the statute have been discussed and construed as applied to the facts there involved in Paul v. Graham, 193 Mich. 447; Cochran v. Staman, 201 Mich. 630. In the latter case, referring to the former, it was said in the controlling opinion by Chief Justice Ostrander:

“But a written promise to pay a stated commission for sale of described property, both of which elements, as the opinion points out, were lacking in the writing relied upon in that case, are present in the writing in this case.”

In the instant case there is nothing but a bare statement that an agreement, admittedly oral, had “been agreed upon.”

What that agreement was remained in parol dependent for its verification on the memory and veracity of interested witnesses, to eliminate which was the express object of the act requiring a “note or memorandum” of its essentials to be in writing.

The judgment is affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    STEVENS v. BLACK.
    1. Pubuco Officers — State Veterinary Board — Inspection of Staluon — Statutes—Mandatory Duty.
    Under 3 Comp. Laws 1915, §§ 14887, 14888, providing that before any stallion should be offered for sale or for public service in this State he should be examined and certified by the State veterinary board, there was no mandatory duty resting upon said board to make such examination until requested so to do by the owner, where the stallion was not being offered for sale or public service, although it is admitted that he was brought into the State for the purpose of sale.

      On liability of live stock inspectors, see note in L. R. A. 1915B, 1013.

      2. Same — Negligence—Liability—Statutes.
    Where defendant, secretary of the State veterinary board, on his own initiative, and without request from the owner of a stallion, undertook to examine said stallion without notice to the owner and in his absence, although said stallion had not been offered for sale or public service, he exceeded his authority, and, where, by reason of the unusual, violent and unreasonable over-exertion of said horse in said examination, a rupture in his stomach was caused, which resulted in his death, said statute afforded him no protection from liability for the consequences of his action.
    .Error to Isabella; Hart (Ray), J.
    Submitted October 15, 1920.
    (Docket No. 16.)
    Decided December 21, 1920.
    Case by Fred G. Stevens against Judson Black,,secretary of the State veterinary board, for the negligent killing of a stallion. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Alex. J. Groesbeck, Attorney General, J. E. Converse and H. S. Sweeney, Assistants Attorney General (Francis McNamara, of counsel), for appellant.

      Frank II. Dusenbury, Charles II. Goggin and Smith & Hunter, for appellee.
   Steere, J.

Plaintiff recovered against defendant a judgment in the circuit court of Isabella county for wrongfully causing the death of an imported and pedigreed Belgian stallion named “Embatable de Don,” claimed to have been the most valuable horse ever taken into that county. The parties kindly stipulated, however, at conclusion of the opening statement. of plaintiff’s counsel, that if the court, as a matter of law, found defendant liable under the stated facts ,a verdict might be directed in plaintiff’s favor for $3,000, and counsel for both parties then requested a directed verdict. After argument the court directed a verdict for plaintiff for the conditionally stipulated amount.

It appears in the record and briefs of counsel undisputed that in the spring of 1919, some time prior to May 9th, plaintiff bought this stallion from a well-known firm located at Lafayette, Indiana, engaged in importing and selling horses, and took him -to Mount Pleasant, Michigan, for the purpose of sale. He had employed a groom or keeper named Mclsaac, who was in immediate charge of the horse which was stabled in a well-known barn on a principal street of Mount Pleasant. Plaintiff had never offered the horse for sale, or used or offered him for breeding purposes in the State of Michigan, and was absent from Mount Pleasant on May 9, 1919. Mclsaac was then at the barn in charge of the horse as a groom, whose only duties were to care for, feed and look after him. The horse was, so far as known, sound and in good condition. On that day he was cared for by Mclsaac in the usual way, given his morning and noon feed at the regular time and the usual quantity of water, which he ate and drank with relish. Until after the arrival of defendant at the stable in the afternoon of that day the horse appeared in perfect health and normal in all respects. He was a large, heavy animal of the Belgian draft horse breed, weighing 2,400 pounds.

There was then in force in the State Act No. 256 of the Public Acts of 1911, with amendments, entitled as follows:

“An act to encourage the breeding of horses; to regulate the public service of stallions; to require the registration of stallions, and to provide for the enforcement thereof.”

Sections 7 and 8 of said act (3 Comp. Laws 1915, §§ 14887, 14888) are as follows:

“SEC. 7. Every stallion brought into this State from another State or from a foreign country to be offered for sale or for public service shall, before any such sale or use is made, be examined by the State veterinary board or its regularly appointed representative, and certified by said board or its representative that said stallion is free from hereditary, contagious or transmissible unsoundness or disease, and is of good conformation and breed type and suitable to improve the horse .stock of the State.
“Sec. 8. Any person, firm, company or association violating any of the provisions of this act shall be deemed guilty of a misdemeanor, and shall upon conviction thereof be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment in the county jail not more than thirty days or by both such fine and imprisonment in the discretion of the court.”

Not having yet offered the horse for sale or breeding purposes within the State plaintiff had made no application for the examination and credentials required by the act for such purpose.

Defendant Black was a veterinary surgeon and secretary of the State veterinary board. Without any request from or previous notice to the owner, then absent, he appeared at the stable in the afternoon of May 9, 1919, at about 3 o’clock, for the purpose, as he stated to Mclsaac, of examining the horse under the law upon that subject, telling him who he was. Although Mclsaac had no instructions from plaintiff or previous knowledge upon the subject, he submitted to defendant’s statement of what he was authorized officially to do and obeyed his directions. In the course of his examination, for the purpose of “proving the wind” to detect any disease of the respiratory organs, he directed Mclsaac to take the horse out and run with him down the street for about a block or so and back again. He then directed Mclsaac to get upon the animal’s back and gallop him as fast as he could down the street a block and back again, which was done. Not satisfied with the strenuousness of those tests he caused a light, fast driving horse which was in the barn to be hitched to a light buggy and directed Mclsaac to get into the buggy with him and lead the stallion behind. He then drove at a very fast pace down the street several blocks, causing the heavy stallion, weighing 2,400 pounds, to gallop behind for a distance of about 120 rods at an unusual gait and unreasonably fast pace for an animal of his kind and weight.

When taken out for this test the horse appeared in good spirits with his head up and full of life. A short time after being returned to his stall he was found by Mclsaac with his head down, trembling and sweating excessively. He called defendant, who was near by, and unsuccessfully endeavored to relieve his condition. Two other veterinaries were called, but the horse grew worse with progressive symptoms of a ruptured stomach, of which he died that evening. An autopsy shortly after his death disclosed a rupture of the stomach from four to six inches in length caused, as plaintiffs counsel stated the proofs would show and the defense assumed as true for the purpose of this case, by the unusual, violent and unreasonable over-exertion for a horse of his weight and kind exacted by defendant ostensibly to test his wind.

Defendant’s counsel state, and plaintiff’s counsel concede, that the two questions involved in the issue as made and argued are:

“First. Was Dr. Black a trespasser in making the examination without the request of the plaintiff and without notice, and
“Second. The liability of a public officer in the performance of his official duties.”

Upon these propositions counsel for defendant contended that, it being conceded the stallion was brought into the State for the purpose of sale, it was the right and duty of the State veterinary board, under section 7 of the act, to.forthwith examine him, without any application or request of the owner therefor, to determine whether his sale or service for breeding purposes would or would not be a benefit to the public; that defendant was, therefore, not a trespasser, but when conducting such examination was lawfully performing a mandatory official duty of a discretionary and judicial nature, to determine by an expert physical examination whether such animal was of the kind and in physical condition entitling him, to be certified as the statute provided; and that in the performance of such official duty he was not liable for the result of any mistaken methods adopted in the exercise of his discretion, or judgment.

Upon the liability of a public officer for damage done by him to private property while in performance of a mandatory official duty, many decisions, not entirely harmonious, are to be found. In that connection it may be noted that this act is not bottomed on the impelling necessities which justify those drastic measures authorized by quarantine laws for guarding the life and health of human beings against dangerous, infectious or contagious diseases which are or may become epidemic, neither can it be regarded as fairly analogous to the laws authorizing quarantining or destruction of domestic animals to guard against an epizootic of diseases, infectious or contagious amongst them, from which if unchecked great and immediate public loss would result. Most of the cases to which our attention has been called relate to the conduct of public officers in acting under such laws.

Even in that class of cases the rule of protection in performance of official duty has its limitations. In Mil ler v. Horton, 152 Mass. 540 (26 N. E. 100), the court held in. a well-considered opinion written lay Justice Holmes that under a law authorizing summary destruction of animals having farcy or glanders, with no provision for compensation to owner, an order of commissioners on contagious diseases Of domestic animals certifying that a certain horse examined on that date was adjudged to have a contagious disease known as glanders and directing that he be killed, was not a protection to the officers executing the order in a subsequent action by the owner against them where it appeared the animal was not in fact infected with the disease. In Pearson v. Zehr, 188 Ill. 48 (29 N. E. 854), a like ruling was made in an analogous case where the livestock commissioners of the State examined and ordered certain horses destroyed because infected with glanders.

As illustrative of what is claimed to be generally accepted rules applicable to the case at bar, counsel for defendant cite Garff v. Smith, 31 Utah, 102 (86 Pac. 772), and Mitchell v. Hopper, 114 Ark. 556 (170 S. W. 231). Those cases involved the performance of duties under laws directed to the prevention or eradication of communicable diseases amongst animals. In the Utah case defendants were the State sheep inspector and his deputy acting in performance of their duties as public officers under a law providing for quarantining sheep found diseased, and were charged by the owner with having defined the limits of a quarantine for certain of plaintiff’s sheep, which they required him to observe, in a region where, owing to the scarcity of proper feed, they ate quantities of greasewood and drank water excessively, a combination likely to cause sickness and death amongst sheep, as a result of which several of them died. Of this the court said:

“There are no allegations in1 the complaint, nor is there any evidence showing, that either of the defendants knew, or that it was common knowledge, that it is harmful or injurious to sheep to eat greasewood and to drink water thereafter, nor that the defendants, in the performance of their duty or otherwise, in defining the limits and designating the place, or in any other particular, acted with malice or wantonness,_ or that they acted beyond the scope of their authority, or without or in excess of their jurisdiction._ * * * It is strongly urged by respondent that, while the act of inspecting and quarantining the sheep may be judicial in its nature, nevertheless the a-ct of defining the place and limits of quarantine is but ministerial. We discern no such distinction. The law does not prescribe the mode of doing the one act any more than it does the other. The law requires the officer to make regulations, for the quarantine. * * * It is quite apparent that the doing of the acts complained of involve such discretionary powers as to make their exercise judicial in their nature, and that the officer performing them is not liable in a civil action, in the absence of averments and proof that he acted with malice or through fraud or corruption.” Citing cases.

In the Arkansas case, cattle inspectors were engaged in the performance of their official duties under a law requiring inspection and treatment of cattle for eradication of certain diseases, and while so engaged one of them roped and threw a steer in such careless manner, as was claimed, that his leg was broken. The owner brought an action for its value, charging negligence in the manner of roping and throwing the animal, as to which there was an issue of fact, defendants claiming the injury was purely accidental and the animal was properly lassoed by an experienced man when trying to break from the herd, but when it struck the brace of the horse at the end of the rope the steer slipped on a rock and fell, admittedly suffering the injury complained of. Defendant assigned error on refusal of the court to instruct the jury that—

“Before you would be authorized to find for the plaintiff, you must find from a preponderance of the testimony that the defendants carelessly or negligently roped the steer belonging to the plaintiff, and in so doing broke, or caused to be broken, its leg, and if you fail to so find from a preponderance of the testimony, then your verdict will be for the defendants.”

The court instructed the jury that if they “found from the evidence that appellants, during the inspection, injured any of the plaintiff’s stock,, they would be liable for whatever damages he sustained by reason of the injury,” which the appellate court held was erroneous, and the rejected request should have been given, saying in part:

“Appellants were officers and engaged in the performance of their duties in inspecting the cattle at the time they undertook to do so. The act being lawful they were only liable for injuries resulting from carelessness or negligence and could not be held liable for damages or'injury resulting by accident or casualty while they were in the exercise of proper care, or such care as an ordinarily prudent man would have exercised under the circumstances.”

Although the case was reversed for the errors pointed out, the proper rule, as stated by the court, seems to harmonize with plaintiff’s contention in the instant case, even assuming, as defendant claims, that, under the act in question, it was his official duty to unsolicited and without notifying the owner examine and test the horse on his own initiative.

But back of that question we find nowhere in the act any express provision giving the State veterinary board the power or imposing upon it the duty to, on its own initiative, take possession or control of such a horse against the wishes, or without the knowledge and consent, of its owner and conduct the examination provided for in section 7, especially when it is undisputed that the animal has never been offered for sale or breeding purposes, or so used, within the State.

In that connection it is helpful to note the class of boards to which the State veterinary board belongs. It cannot properly be counted as a health' board, for man or beast. Here and elsewhere that field is occupied by boards properly constituted and empowered for such service under different laws. In this 'State those duties were until recently performed as to domestic animals by the State livestock sanitary commission, created by Act No. 182, Pub. Acts 1885 (2 Comp. Laws 1915, § 7307 et seq.), but' abolished by Act No.' 181, Pub. Acts 1919, which created! a department of animal industry providing that all functions, powers and duties of the abolished commission “are hereby transferred to and vested in the department of animal industry hereby created,” etc. The State veterinary board is one of the several examining and licensing boards provided for authorizing the pursuit of certain professions and other callings within the State, such as physicians and surgeons, osteopaths, dentists and pharmacists, optometrists, chiropodists, veterinaries, barbers, nurses, horse-shoers, etc. As created, the number of its members, required qualifications, powers and duties of this board are provided in Act No. 244, Pub. Acts 1907 (2 Comp. Laws 1915, § 6813 et seq.). The additional powers directly conferred upon said board by the act under consideration are stated in section 6, amongst which it is “authorized to provide for official examination of pedigrees and certificates,” etc.

Both by the statute Creating it and the act under consideration its purposes, powers and duties are primarily those of án examining and licensing board, from which those desiring to engage in the practice of veterinary medicine in its various branches, or under the act in question, engage in the sale or use of stallions for breeding purposes must, by complying with prescribed requirements, obtain a license therefor before entering upon those activities, for a violation of which criminal proceedings and punishment by fine and imprisonment are imposed. The law provides no machinery and confers upon the board no power to compel a party who has not engaged in such calling or activity, even though he contemplates doing so, to qualify and obtain a license therefor. It does provide criminal prosecution and punishment if he so engages without a license. Plaintiff violated no law in bringing the horse into the State and keeping him here, though intending to sell him, so long as no “such sale or use is made” before the certificate prescribed by section 7 has been obtained. By the opening statement of plaintiff’s counsel it was shown that the board had promulgated certain rules and regulations prescribing the manner in which applications for examination and license should be made, and had circulated them amongst horsemen of the State. If not directly advised, plaintiff presumptively knew the law. Taking as true, and conceded for the purposes of this case, that this horse was of the kind and value stated in counsel’s opening it was not only the duty but beneficial right of plaintiff to have him inspected, registered and licensed. Upon this the market value of the horse for the purposes proposed in this State largely depended. To sell or offer him for sale before obtaining the prescribed credentials would not only lay plaintiff open to criminal prosecution but be suicidal as a business proposition.

To a large degree the law isjm its nature self-enforcing amongst those capable of qualifying and proposing to engage in the named sale or use of such animals, as a matter of self-interest; and like reasons of self-interest stimulate those who have complied with the law to insist upon its enforcement against those endeavoring to violate it. While the board and its members would naturally and commendably take an active interest in seeing that this law relating to their duties was enforced, the provided method for reaching that result is prosecutions for its violation.

In the course pursued defendant exceeded his authority and was not in the performance of any mandatory official duty which protected him from liability for the consequences.

The judgment is affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    GITSON v. YALE LAND CO.
    1. Vendor and Purchaser — Land Contracts — Breach—Nominal Damages.
    In an action for the breach of a land contract “to grade and cinderize streets within said subdivision, and to lay cement sidewalks in front of each lot, and plant shade trees on or before one year from date hereof,” an admitted and unexcused breach in the particulars charged, held, to entitle plaintiffs to a directed verdict for at least nominal damages.
    2. Same — Witnesses—Competency — Damages — Weight op Evidence.
    Testimony by a real estate operator with 11 years of varied experience, who had handled subdivisions, whs acquainted with the subdivision in question and had looked over the property more than a year and a half after plaintiffs’ purchase, held, competent as to the value of the lot in its unimproved condition and as to plaintiffs’ damages by reason of defendant’s breach; its weight and probative value being for the jury.

      3. Same — Adverse Witness — Evidence—Value—Relevancy.
    Testimony by a. member of defendant corporation, who was called for examination as an adverse witness, as to the price paid for the land in its unimproved state and as to what lots would be worth if improvements had been put in as promised, held, not irrelevant and prejudicial.
    4. Same — Damages—Evidence—Excessive Damages.
    Where there was testimony to sustain the verdict for plaintiffs for $425, it cannot be said to be excessive.
    Error to Wayne; Hosmer (George S.), J.
    Submitted October 13, 1920.
    (Docket No. 92.)
    Decided December 21, 1920.
    Assumpsit in justice’s court by Esther Gitson and another against the Yale Land Company for breach of a land contract. There was judgment for plaintiffs, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Bishop & Kilpatrick (R. R. Weaver, of counsel), for appellant.

      A. Joseph Seltzer, for appellees.
   Steere, J.

This action was begun and first tried in a justice’s court of Detroit. Re-trial was had in the circuit court of Wayne county on appeal taken by defendant resulting in a verdict and judgment of $425 for plaintiffs. The case was thence removed to this court by defendant on various assignments of error. The damages recovered by plaintiffs were for breach of a land contract by which defendant sold them a lot, No. 89, in a subdivision it had platted outside of Detroit called “Puritan Homes Subdivision” of north 30 acres of N. E. *4 of S. E. % of section 16, T. 1 S., R. 11 E., lying in the township of Greenfield, Wayne county, Michigan.

The purchase price for lot 89 was $1,200. It was called a “business lot,” is said to be'39 feet frontage and stated by defendant’s secretary to be “larger than any other frontage on Livernois avenue.” When the lot was sold to plaintiffs, on March 15, 1917, the subdivision was to all appearances as yet a bare tract of farm land, destitute of any modern municipal improvements or characteristics except the imputed urban attributes resulting from its proximity to Detroit and it had been platted, on the strength of which one of the defendant’s directors denied it was “farm land” — giving as his reason that it was “a subdivision, the same as many other subdivisions.” It so remained up to the time of the trial in February, 1920. The provisions of the contract against which proof of breach was directed were defendant’s agreement “to grade and cinderize streets within said subdivision, lay cement sidewalks in front of each lot, and plant shade trees on or before one year from the date hereof.”

At the expiration of the year the promised improvements, as well as the anticipated Puritan homes, upon the subdivision, were yet in futuro. Plaintiffs’ evidence was plain and positive that the specified improvements were not made and is not denied except by defendant’s • secretary to the extent of testifying that in March, 1918, streets were being graded, but he admitted no streets had ever been cinderized, nor shade trees planted, nor sidewalks put in. In extenuation of this delinquency he explained in part:

—“it would necessitate the laying between 30,000 and 40,000 square feet of cement walk at from 16 cents to 20 cents per foot. ? * * This land was not required for business purposes during that time. There is a lifetime for sidewalks — a certain length of time in age — if they had been put in at the time of this contract they would have deteriorated to such an extent that they possibly would have to be relaid when they began to build on the subdivision.”

At conclusion of the testimony defendant unsuccessfully moved for a directed verdict on the ground no damages were shown, then for a verdict non obstante, and for a new trial in which it was urged among other things that the verdict was excessive.

Under defendant’s assignment of error the points argued in counsel’s brief are, that a witness of plaintiff named Weinberg, who gave evidence as to values and damages to lot 89 by reason of the improvements not having been made, was not qualified to testify; that irrelevant and prejudicial testimony was admitted as to previous acreage prices for which the land had sold; that plaintiff furnished no data from which damages could be figured, excessive, damages awarded and refusal of the court to grant defendant’s request for a directed verdict.

Upon the last point made it is sufficient to state that the record shows an admitted and unexcused material breach of contract, entitling plaintiffs in any event to a directed verdict in their favor for at least nominal damages.

.The witness Weinberg, whose testimony defendant claims was incompetent because he was not shown to have qualifying knowledge, had been engaged in the real estate business in Detroit for 11 years, knew the property in this subdivision, had visited it in the fall of 1918 at request of plaintiffs’ counsel to look at lot 89, and testified that he found no streets there except Livernois, - which had “always been there,” that the subdivision was yet farm land unimproved for other purposes and if at any time a street for which he looked had been graded there it was grown over with grass so he could not find it; that before going out to see the lot he made a sketch from data obtained at the county building and while he could not find “Green street,” on the land, he was within 20 or 25' feet of where the plat showed lot 89 would bé. He owned lots in a subdivision not more than a quarter of a mile southwest of there, had handled a subdivision in Highland Park, and testified to increased values of subdivisions resulting from grading streets, putting in sidewalks, etc. He was allowed to testify to the value per foot front of lot 89 as he found it in that unimproved subdivision, that according to his experience and observation such improvements generally doubled the value of such a lot, and in his opinion plaintiffs’ damages by reason of the improvements not having been made as agreed by defendant would amount to $540. Such testimony by a real estate operator with 11 years of varied experience in the city of Detroit, who had handled subdivisions himself, was acquainted with this subdivision and looked over the property more than a year and a half after plaintiffs’ purchase, was clearly competent. The weight and probative value of his testimony were for the jury.

The irrelevant and prejudicial testimony complained of was given by J. B. Whitley, an officer and one of the principal stockholders of defendant, who was called by plaintiffs’ counsel and examined as an adverse witness. He had testified without objection: “The value of that property today is from $3,500 to $4,500 an acre. In 1917 within $500 of that amount lower.” Then, subject to the objections of defendant — •“to what we paid for it — irrelevant for this issue,” and “might tend to give an impression which does not bear upon this particular case,” he was asked by plaintiffs’ counsel and answered as follows:

“Q. How much did you pay for this acreage?
“A. I purchased it personally for $70,000 and sold it to the corporation for $80,000, thirty acres. There are about 10 lots average per acre.
“Q. And at that time the value of that property, according to the price you sold it to the corporation was $80,000 — almost $3,000 an acre?
“A. Yes, sir.
“Q. And you have 10 lots out of each acre? (Objected to and argued.)
_ “Q. That lot at this price as acreage is worth possibly about $300 per lot, isn’t that right?
“A. Yes, average.
“Q. What would give it the added value, if anything?
“A. The demand for homes in that vicinity. In order to build homes you have to have the subdivision improved.
“Q. And if these improvements were in, then this lot would be worth $1,200, wouldn’t it?
“A. That particular corner lot on Livernois avenue is larger than any other frontage on Livernois avenue, would be worth $1,200. We have lots for sale at $350 at the back end of that subdivision. That lot would be worth $1,200 if improved. It should be worth more. # The frontage has increased in value. I claim it has increased $100 now without the improvements. If this subdivision were entirely improved, the lot ought to be worth $1,300 at the present time.”

The record, which does not very clearly show the changes of examining counsel for the respective sides, indicates, perhaps erroneously, that this witness’ first testimony, without objection as to the acreage value of the property, was given while being directly examined by defendant’s counsel; but be that as it may, the testimony was without objection and plaintiffs’ further pursuit of the subject in examination of an adverse witness was competent and relevant to the subject of values. The improvements had not been made, the property yet remained in its physical features a tract of 30 acres of farm land, as when purchased by defendant. Proof of what it had recently sold and resold for in that same condition is some evidence of its value. Engel v. Tate, 203 Mich. 679, and cases there cited. Aside from the claim of irrelevance, counsel urge the testimony was prejudicial as “tending to give a misleading impression, that there are so many elements between the purchase of property in the rough and platting and subdividing and selling it as a subdivision, that those figures would not in any manner give the correct facts so far as this issue is concerned.” Being relevant to values and competent, the fact that this testimony might be helpful to plaintiffs in some particulars would scarcely condemn it as legally “prejudicial.” Physically this property remained •farming land “in the rough,” as when purchased by defendant. The elements of “platting and subdividing and selling it as a subdivision” had not changed its physical features or characteristics. Those elements were, however, shown in the case and before the jury. Plaintiffs claimed that without the supplemental public improvements defendant had agreed to make they did not increase the intrinsic value of the property beyond that of farm land, which it in fact yet remained. To what extent the “elements” of draughting and recording a plat of a farm, or farm lands, measuring and staking the same out into lots and selling or offering the same for sale might of themselves increase its intrinsic value would be for the party claiming such increase to prove.

We cannot agree with defendant’s' contention that plaintiffs did not furnish sufficient data from which damages could be figured and the verdict was but the result of speculation or conjecture by the jury. Defendant swore no witnesses but rested and requested a directed verdict at conclusion of plaintiffs’ testimony.

Weinberg, with 11 years’ experience in the real estate business, examined and testified as to the location, condition and value of this property, the difference between its value as he saw it and the value if improved as defendant had agreed, and placed plaintiffs’ damages on that basis at about $540. Whitley, an interested, adverse witness with four and one-half years’ experience operating in real estate, testified as before quoted to the value per acre of this subdivision without the promised improvements, when this contract was entered into and later, that the size of lots was about ten to the acre, and to increased value which would result “if these improvements were in.” Those men testified to material facts, circumstances and data directly, and were qualified to give their opinions as to values. The evidence direct and inferential was adequate to sustain the verdict rendered. We cannot find as a conclusion of law that it was excessive or unjust.

The judgment is affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Stone, J.

text:
    GILDEMEISTER v. LINDSAY.
    1. Appeal and Error — Moot Questions.
    Where, on appeal from the decree of the court below dismissing plaintiff’s bill for an injunction to restrain defendants, composing the city election commission of the city of Detroit, from certifying the returns of the election whereby the electors of said city approved Act No. S69, Pub. Acts 1919, affecting the municipal courts of record, it appears that after dismissal of the bill defendants had made the certification sought to be restrained, and the judges provided for in said act had been appointed and were exercising the functions and performing the duties of the office in question, and that the questions involved are therefore moot questions, this court will decline to consider them.

      2. Quo Warranto — Title to Office.
    In this State quo warranto- is the only way to try title to office, finally and conclusively.
    S. Same — Statutes—Constitutionality—Right to Hold Public Office.

      Quo warranto is the proper proceeding to test the constitutionality of an act of the legislature providing for the appointment of judges of the recorder’s court of the city of Detroit, on approval of said act (Act No. S69, Pub. Acts 1919) by the electors of said city, since the right of said judges to hold office is also involved; and a bill to try said questions was properly dismissed.
    4. Courts — Evidence—Judicial Notice — De Facto Court.
    This court might properly take judicial notice of the fact that the court sought to be reached in this suit is a de facto court.
    5. Same — De Facto Court — Definition.
    A de facto court is one established and exercising its judicial functions under authority of a statute apparently valid, though such statute may be in fact unconstitutional, and may be afterwards so adjudged.
    Appeal from Wayne; Dingeman (Harry J.), J.
    Submitted October 20, 1920.
    (Docket No. 77.)
    Decided December 21, 1920.
    Bill by Charles B. Gildemeister against Richard Lindsay and others, composing the city election commission of the city of Detroit, to enjoin the certification of certain election returns. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Lazarus S. Davidow, for plaintiff.

      Clarence E. Wilcox, Corporation Counsel, for defendants.

      Edward S. Grece and M. F. McDonald, amici curise.

   Stone, J.

At the election held in the city of Detroit on April 5, 1920, Act No. 369 of the Public Acts of Michigan for 1919 was approved by the electors of the city. The act is entitled as follows:

“An act to supplement existing laws providing for the establishment and maintenance of municipal courts of record, and defining the jurisdiction of such courts; to fix the number of judges thereof; to provide a presiding judge; to define the privileges of such presiding judge; to modify the procedure in and extend the jurisdiction of said courts in certain respects, and to provide for the abolishing of any police courts or other courts not of record having exclusive criminal jurisdiction existing in any city, in which the provisions of this act become operative.”

The bill of complaint herein was filed by the plaintiff, who is a resident taxpayer of Detroit, for an injunction to restrain the defendants, who compose the city election commission, from certifying the returns of the election in so far as they relate to said act, plaintiff’s contention being that the act in question violates the Constitution of this State and is null and void. A number of constitutional questions are presented and discussed by counsel, which, in our view of the case, it is not necessary here to set forth.

The act in question, among other things, provides for a referendum to the electors, and for a number of additional judges of the recorder’s court of the city of Detroit, to be determined on the basis of one judge for each 70,000 population, or majority fraction thereof according to the Federal census of 1910. The defendants answered and the case went to a hearing. Upon the hearing in the court below the temporary restraining order which had been made in the cause was dissolved and the bill of complaint was dismissed. The plaintiff has appealed.

At the threshold of this case we are confronted by two questions, either of which, in our judgment, is decisive of the case. Upon the oral argument of the case in this court it was conceded by counsel that after the dismissal of the bill below, the defendants had made the certification sought to be restrained, that the judges provided for in the act had been appointed, and were exercising the functions and performing the duties of the office in question. In other words, it now appears to this court that it has before it nothing but abstract questions of law which do not rest upon existing facts or rights. The questions involved are moot questions, and the case becomes a moot case, which we must decline to consider.

In the recent case of Anway v. Railway Co., 211 Mich., at page 622, Mr. Justice Fellows said:

“Among the numerous cases in which this court has declined to consider abstract questions of law and which we have declined to decide where our conclusions could not be made effective by final judgment, decree, and process, see Schouwink v. Ferguson, 191 Mich. 284; Carlson v. Wyman, 189 Mich. 402; Howe v. Doyle, 187 Mich. 655; East Saginaw Ry. v. Wildman, 58 Mich. 286; Hicks v. J. B. Pearce Co., 158 Mich. 502; Brown, ex rel. Van Buren, v. Lawrence, 197 Mich. 178; Ideal Furnace Co. v. International Molders’ Union, 204 Mich. 311; Blickle v. Board of Education, 210 Mich. 196; Tierney v. Union School District, 210 Mich. 424."

In Tierney v. School District, supra, it appeared that the granting of the injunction prayed for would be an idle act, and we held that where an appeal presents simply abstract questions of law which do not rest on existing facts or rights, and is therefore a moot case, and that action by the appellate court would be futile, the case will be dismissed.

There is another question or ground for dismissal that is equally decisive. In fact and in law this is a proceeding to test the validity of the statute involved, and the right of the judges appointed under its provisions, to hold the office and exercise its functions. In other words, the title of these men to office is involved, and yet in'this proceeding, which is vital to their interests, they are not made parties and have no “day in court.” In this State quo warranto is the only way to try title to office, finally and conclusively. Frey v. Michie, 68 Mich. 323. In that case Mr. Justice Campbell, speaking for the court, said:

“The only way to try titles to office finally and conclusively is by quo warranto. Even where a mandamus is issued to seat a person who produces the proper evidence of title, it does not settle the title at all. Doran v. DeLong, 48 Mich. 552; People v. Detroit Common Council, 18 Mich. 338. It was held in Jhons v. People, 25 Mich. 499, that the title to office cannot be tried collaterally. See, also, Curran v. Norris, 58 Mich. 512. And although a bill in equity has a broader operation than a writ of mandamus, and is further reaching, it was held in Detroit v. Board of Public Works, 23 Mich. 546, that it would not lie to determine between two municipal bodies asserting the same power of appointment, and that the boundaries of theiri franchises must be determined by quo warranto. The bill filed against the board of auditors, referred to in the return, as well as in the petition, came within this decision, and the injunction dissolved by the circuit court should never have been granted. It only lies in aid of quo warranto, where expressly authorized by statute, and it does not lie at all to determine the usurpation of office or franchises. But there is no rule of law which will allow the title to office to be tried in a private controversy controlled by individuals.”

In Bolt v. Riordan, 73 Mich. 508, it was held that a proceeding in the nature of quo warranto against a person in office is the appropriate manner of testing the validity of the statute under which his office was created. It was also there held that the constitutionality of an act of the legislature under which an office is created may be tested by quo warranto proceedings against the incumbent, citing People v. Maynard, 15 Mich. 463; Attorney General v. Holihan, 29 Mich. 116, and Attorney General v. Amos, 60 Mich. 372. See, also, 32 Cyc. p. 1422; 8 L. R. A. 229, note.

In the quo warranto case of People v. Doesburg, 16 Mich. 133, it was held that where an issue was formed, and sent down for trial, the parties could not be deprived of a jury trial against their consent.

In Roeser v. Gartland, 75 Mich. 143, it was held that quo warranto was a proper remedy, where not only the existence of a school district, but the title of its officers, Was attacked. See, also, Atlee v. Board of Sup’rs of Wexford Co., 94 Mich. 562, citing Fractional School District v. School Inspectors, 27 Mich. 3.

In Perrizo v. Kesler, 93 Mich. 280, it was held that proceedings whereby a school district was created out of existing districts could not be reviewed by certiorari after the district had assumed the functions of a corporation, the remedy being by quo warranto, citing Fractional School District v. School Inspectors, supra, and Parman v. School Inspectors, 49 Mich. 63. See, also, Lachance v. Board of Canvassers, 157 Mich. 679.

City of Detroit v. Board of Public Works, supra,, was a chancery case. Mr. Justice Christiancy, in disposing of the case, there said:

“The whole controversy, therefore, is involved in the single question, whether the defendants are entitled to the offices they claim, as against the officers of the old boards sought to be discontinued. This is a question for which the statute has provided a specific and adequate remedy at law by an information in the nature of a quo warranto, which might be instituted upon the relation of the officers claiming to constitute the new board of public works, against the officers of the old board holding over. * * * In any of these proceedings by quo warranto, the question in controversy would be the same as that sought to be litigated under the present bill — the constitutionality of the act and the rights of the different officers to the offices they claim the right to hold. And it does not alter the case that there is also a question whether there are such offices to be filled, or whether there is such a corporation, as all this is involved in the question whether they are entitled to hold such offices, or to exercise such corporate powers.
“It is, therefore, quite clear that there is nothing in the nature of the controversy itself, or question to be tried, which makes it one of equitable cognizance, there being a complete remedy at law for the trial of the right of the respective contestants to the offices in question.”

This was said where the officers were parties in the equity suit. How much stronger is the reason, in its application, where, as here, the officers are not parties, and cannot be heard? It is sought in the instant case to try in equity the right of certain persons to a public office.

The court sought to be here reached is a de facto court. Of that fact we might take judicial notice.

A de facto court is one established and exercising its judicial functions under authority of a statute apparently valid, though such statute may be in fact unconstitutional, and may be afterwards so adjudged. 1 Black on Judgments, § 173; Burt v. Railroad Co., 31 Minn. 472 (18 N. W. 285).

In the last cited case it was held that when a court or office is established by a legislative act apparently valid, and the court has gone into operation, or the office is filled and exercised, under the act, it is a de facto court or office. Many cases are there cited, and among them. State v. Carroll, 38 Conn. 467 (9 Am. Rep. 409), where it is said:

“The de facto doctrine was introduced into the law as matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office, without being lawful officers.”

As said by the Minnesota court:

“It would be a matter of almost intolerable inconvenience, and be productive of many instances of individual hardship and injustice, if third persons, whose interests or necessities require them to rely upon the acts of the occupants of public offices, should be required to ascertain at their peril, the legal right to the offices which such occupants are permitted by the State to occupy.”

And the doctrine is held to apply to courts as well as other offices. See, also, Auditors of Wayne Co. v. Benoit, 20 Mich. 176 (4 Am. Rep. 382).

Turning to 1 Black on Judgments, § 173, we find the following:

“In order that a judgment should be recognized as valid, it is of course necessary that it should have been rendered by a lawful and duly constituted court; otherwise it is not ‘the sentence of the law,’ and is not entitled to carry its sanction. But on principles of public policy and for the security of rights it is held that the regular judgments of a de facto court, whose existence has afterwards been pronounced unconstitutional and void, are nevertheless valid and conclusive.” Citing State v. Carroll, supra; Burt v. Railroad Co., 31 Minn. 472 (18 N. W. 285); State v. Anone, 2 Nott & Me. (S. C.) 27; Gilliam v. Reddick, 26 N. C. 368; State v. Porter, 1 Ala. 688; Mayo v. Stoneum, 2 Ala. 390; Masterson v. Matthews, 60 Ala. 260; State v. Alling, 12 Ohio, 16; Keene v. McDonough, 8 Pet. (U. S.) 308.

At section 175, speaking of acts of a de facto judge, the same author says:

“A person may be entitled to this designation who, although he is not a true and rightful incumbent of the office, yet is no mere usurper, but holds it under color of lawful authority. And there can be no question that judgments rendered, and other acts performed by such a person are valid and binding. If a contested election, for example, should result in the ouster of the person who, being entitled on the face of the returns, was commissioned and qualified as judge, this would not retrospectively invalidate the judgments he may have rendered while in actual possession of the office. So judges elected and duly qualified, and who exercise the functions of their office, are de facto officers, although the act under which they were elected was unconstitutional.” Citing Campbell v. Commonwealth, 96 Pa. St. 344; In re Ah Lee, 5 Fed. 899; Carland v. Custer County, 5 Mont. 579 (6 Pac. 24); Taylor v. Skrine, 3 Brev. (S. C.) 516; Brown v. O’Connell, 36 Conn. 432 (4 Am. Rep. 89); Clark v. Commonwealth, 29 Pa. St. 129; People v. Bangs, 24 Ill. 184, and other cases.

We are satisfied that it is against the policy of the law of this State to allow the title of a public office to be tried and determined in a private controversy controlled by individuals. In any view of the instant case which we are able to take, we are of the opinion that the bill of complaint was rightfully dismissed.

The decree below dismissing the bill of complaint is affirmed, with costs of this court to the defendants.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PEOPLE v. KONGEAL.
    1. Criminal Law — Trial—Exclusion of Witnesses — Discretion of Court.
    The exclusion of witnesses from the court room in a prosecution for the crime of assault with intent to commit rape upon a female child-under the age of consent, in violation , of 3 Comp. Laws 1915, § 15212, after the father of the ’ child had testified as to her age, is within the discretion of the trial court.
    2. Same — Assault with Intent to Rape — Venue — Evidence— Sufficiency.
    Where the prosecuting witness, a girl 14 years of age, of limited intelligence, testified that the assault was made in an automobile while it was stopped near the corner of a certain street, but apparently was unable to testify understandingly that it was in the city of Detroit, but during the trial she went with an officer and pointed out to him the spot where the automobile stood, and thereafter she further described the place, and the officer testified that said street and the place pointed out by her were within the city of Detroit, said testimony was competent as to the venue, and whether it established the same beyond a reasonable doubt was for the jury.
    3. Same — Evidence—Sufficiency.
    Testimony of prosecutrix that defendant assaulted her while in the back seat of the .automobile, at a certain place, and that he tried to have connection with her, tearing her underwear during said assault, said torn garment being produced in court, identified by her and admitted in evidence as an exhibit, held, sufficiently direct and positive to sustain a conviction, although her testimony in certain other respects as to the details of their trip in the automobile was somewhat confused as to the sequence of events.
    4. Same — Trial—Jury Judges of Credibility of Witnesses.
    The jury are the triers of the facts and judges of the credibility of the witnesses, and it is for them, and not the court, to determine what weight should be given to the testimony.
    5. Same — Trial — Elements of Offense — Burden of Proof — Proof — Instructions.

      Held, that the court correctly instructed the jury as to the elements of the offense charged, the lesser offenses covered by the charge, and the burden of proof, and that it was their duty to acquit in case of a reasonable doubt as to the proof of any element of the offense.
    6. Same — Trial—Assault with Intent to Rape — Consent—Instructions.
    The court properly refused a requested instruction that before defendant could be convicted the jury must find that he assaulted the complaining witness with intent to have intercourse with her against her will, since, she being under the age of consent, under the statute he would be guilty even if she consented to the assault.
    7. Same — Leading Questions — Discretion oe Court.

      Held, that there was no abuse of the discretion of the court in permitting leading questions to be asked and answered, under the conditions shown in the record.
    8. Same — Constitutional Law — Collateral Attack — De Facto Courts — Judgments.
    Defendant’s contention that Act No. 369, Pub. Acts 1919, under which the trial judge held office, was unconstitutional and therefore the conviction should be set aside cannot be sustained, since the legality of said court cannot be attacked collaterally, and the judgments of a de facto court are held valid. Gildemeister v. Lindsay, ante, 299.
    Error to recorder’s court of Detroit; Heston (William M.), J.
    Submitted October 14, 1920.
    (Docket No. 114.)
    Decided December 21, 1920.
    Joseph Kongeal was convicted of an assault with intent to commit the crime of statutory rape, and sentenced to imprisonment for not less than 5 nor more than 10 years in the State prison at Jackson.
    Affirmed.

      Louis J. Colombo (Cassius Hollenbeck, of counsel), for appellant.

      Alex. J. Groesbeck, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and Collins B. Seott, Assistant Prosecuting Attorney, for the people.
   Steere, J.

Defendant was tried and convicted by the verdict of a jury in the recorder’s court of the city of Detroit of the crime of assault with intent to commit rape upon Margaret Boiey, a female child under the age of consent, in violation of section 15212, 3 Comp. Laws 1915, and sentenced to confinement in the State prison at Jackson for a period not exceeding 10 years. The case is here for review on various assignments of error, the first of which is directed to a ruling of the court excluding witnesses from the court room during the trial at the instance of the prosecution after the father of the girl alleged to have been assaulted had' testified as to her age. This ruling was clearly within the discretion of the trial judge. People v. Burns, 67 Mich. 537; People v. Martin, 210 Mich. 139.

It is also urged as error that the court refused to direct a verdict of acquittal because the venue was not proven beyond a reasonable doubt and there was no reliable evidence establishing defendant’s guilt of the offense charged against him. As to the venue, the offense was claimed to have been committed during an automobile ride’taken by the parties between Detroit and Dearborn. Margaret Boiey, the girl claimed to have been assaulted, was 14 years old and, as her testimony indicates, of limited intelligence for her age. She testified that the assault was made while the car was stopped near the corner of Martin street, but apparently .was not able to testify understandingly that it was in the city of Detroit. Her confused answers on cross-examination as to distances and time consumed by the automobile in going from one place to another left uncertainty as to the venue, although she definitely located it near a grocery at the corner of Martin street when first upon the stand. After court had adjourned for the day, while the case was on trial, she went with an officer and pointed out to him the place where the automobile stood near Martin street when the assault was made. She thereafter further described the place and the officer testified that Martin street and the place pointed out by her were within the city of Detroit, describing the locality. There was certainly competent testimony in the case as to the venue and whether or not it established the same beyond a reasonable doubt was. for the jury.

The girl’s parents testified as to her age, place and time of birth. She was the oldest of their five children and living at home attending public school, having been at school on the day of the alleged assault. She was acquainted with defendant who lived upon the same street near their home. She went out with him that evening without her parents’ knowledge or consent on his. invitation, as she testified, for a ride in an automobile which belonged to a friend of his. There were four in the party, the others being his brother with a girl she called “Katie.” She testified that they left about 10 o’clock in the evening, went out to Dearborn, and on the way back while the car was stopped near Martin street defendant assaulted her while she was in the back seat of the car and tried to have connection with her, tearing her underclothing during the assault. The torn garment was produced in court, identified by her and admitted in evidence as an exhibit. Her testimony as to his assault upon her and efforts to have connection with her was direct and positive, distinctly covering the elements of the crime he was charged with. While she consistently adhered to her story in that particular, her testimony in certain other respects as to the details of their trip was somewhat disjunctive and more or less confused as to' the sequence of events. Illustrative of this' she testified as follows:

“When the automobile stopped on Martin street there were in it a girl with me and two fellows and myself. The two men were Joe Kongeal and Will Kongeal. Joe Kongeal, that was in the car, is the defendant here. The third party, the other girl, was Katie. When the automobile stopped on Martin street there were four people in it’. On Martin street Joe tried to have intercourse with me. When the automobile stopped there they lost a crank and they went up on Michigan avenue and got — and while they was gone this other girl with me started to run. She was afraid, so she ran home and she took a bottle of whisky with her that was in the automobile. They came back just in time and Bill started to run after her. Then Joe says, ‘Now, I have got you. Now, I am going to have intercourse with you.’ Joe said it to me, about 2 o’clock, then he took me over to Bill’s house. That was three blocks and a half from the place where it stopped. About an hour and a half after this connection they took me to the place where I stayed all night. Katie did not come back at all. She wasn’t there when this happened.”

Margaret was a young school girl of apparently childish intelligence and not experienced as a witness in court proceedings nor yet veteranized in the features of joy riding to which she was introduced .that night, if as she testified. Dr. French, the county physician who subsequently examined her physically, testified that he found her hymen yet intact. The jury saw the girl upon the witness stand and heard her testimony both upon direct and cross-examination. They were the triers of the facts and judges of her credibility. It was for them and not the court to determine what weight should be given to her uncontradicted account of the assault. The court very carefully instructed the jury as to the elements of the offense charged and the lesser offenses covered by the charge, which were also properly submitted to them, with full instructions upon the burden of proof which “never shifts,” and the requirement that “each and every element” of the offense as explained must be established by the prosecution beyond reasonable doubt, it being the duty of the jury to acquit in case of a reasonable doubt as to the proof of “any element of the offense.” The court committed no error in refusing defendant’s request for a directed verdict, nor in the charge under which it was submitted to the jury.

It is further contended that the court erroneously refused the following request of counsel:

“Before you may convict respondent of the crime alleged in the information you must first find that respondent assaulted complaining witness with intent to have intercourse with her against her will by using whatever force might be necessary to overcome whatever resistance she made.”

The court did charge, closely following the language used in People v. Courier, 79 Mich. 366:

“It is necessary, however, gentlemen of the jury, that you find from the evidence that the defendant intended to have sexual relations with Margaret Boley, although the act was not consummated, that he took steps looking towards such intercourse and laid hands on her for that purpose, although he did not intend to use force.”

Upon the question raised this instruction fairly advised the jury of the law in this State upon that subject as applied to a female child under the age of consent. In People v. Goulette, 82 Mich. 36, defendant was convicted of the crime of assault with intent to commit rape upon a girl under 14 years of age. The information contained three counts, respectively charging rape, assault with intent to commit rape and taking indecent liberties with her person in violation of the statute. As applicable here it was said:

“The only important and serious question raised by the record is whether the respondent was properly convicted under the second count, of an assault with intent to commit rape. * * * The point raised in behalf of the respondent is settled by the case of People v. Courier, 79 Mich. 366. Her own acts, she being under the age of consent, could form no legal justification to respondent for an assault upon her with intent to violate her person; nor was it necessary for the jury to find, in order to convict, that he intended to gratify his passion, regardless of resistance.”

In People v. Chamblin, 149 Mich. 653, the question was before this court on certiorari to review denial by the circuit court of a motion to dismiss a complaint and warrant because the preliminary examination before the committing magistrate did not show reasonable ground to believe the defendant guilty of an assault with intent to commit rape upon a girl less than 16 years of age. In dismissing the writ it is said:

“But the claim is now made that it cannot be inferred from thisi testimony that respondent intended to use force to accomplish his purpose, and that without proof of that intent he cannot be convicted of the crime charged in the complaint and warrant. As the complaining witness was under the age of 16 years, respondent would (see section 11489, 3 Comp. Laws) have been guilty of the crime of rape, if he had sexual intercourse with her, even though by her consent. And if, when he committed the assault respondent intended to have sexual intercourse by such consent, he was, under section 11490, as construed by this court in People v. McDonald, 9 Mich. 150, guilty of an assault with intent to commit the crime of rape.”

We find no error in the refusal to charge complained of, nor in the charge as given.

Error is assigned on leading questions asked and permitted by the court while the girl was testifying. The few questions objected to which could be so characterized were asked in relation to certain details after she had testified in answer to proper questions not objected to that defendant tried to have connection with her, had said to her, when “Bill started to run after” the other girl, “now, I have got you,” and that he was going to have intercourse with her; and in answer to the question, “What did he do?” replied, “Well, he started to get on top of me.” It is unnecessary to pursue the subject. The allowance of such questions is within the discretion of the court, and we find no indication of abuse of that discretion. People v. Jensen, 66 Mich. 711; Mason v. Partrick, 100 Mich. 577; Lungerhausen v. Crittenden, 103 Mich. 173; People v. Bernor, 115 Mich. 692; Webb v. Feather’s Estate, 119 Mich. 473; Burnham v. Insurance Co., 119 Mich. 588; People v. Wheeler, 186 Mich. 489.

Counsel for defendant contend that this case is ruled by People v. Dowell, 136 Mich. 308, of which Justice Grant, who wrote the opinion, said: “This is an anomalous case. I have found no one like it in the books.” The McDonald, Courier and Goulette Cases were then in the books and evidently not regarded as analogous. The female child alleged to have been assaulted in the Dowell Case “lacked but one month of being 16 years of age,” the assault was alleged to have been committed “in broad daylight, in front of defendant’s shed, along a public highway.” According to the girl’s testimony no indecent liberties were taken with her person by the accused. Hisi turpitude consisted of what he proposed rather than what he did. She stated that after some preliminary conversation he took her by the arm and tried to pull her into the shed, saying, however, “he did not disarrange my clothing, or knock off my hat, or displace a button. Not a single thing was done there to my wearing apparel by which it was put out of shape or put out of order. There was no scuffle.” She also said that during the incident, “I told him I was afraid I would get in a family way; and he says, T will get you a French safe.’ ” In commenting on this and other peculiarities of the case it. is said in the opinion:

“She shows a not very creditable knowledge of the meaning of sexual intercourse and its consequences. * * * If she understood his object to be sexual intercourse when he took hold of her arm, and she said she was afraid of the consequences, and he then promised to get her a French safe, the language of his reply would hardly justify the conclusion that he contemplated intercourse at that time, but at some future time.”

The court also held the admission of certain hearsay testimony erroneous, commented upon the duty of the court to instruct the jury fully as to the elements of the offense charged, and criticized the following portion of the charge:

“As I said to you, she could not, consent, even though she might have been the one who solicited it. If he sought to do that with her with that intent, then he would be guilty.”

This was said to be erroneous because it left out the question of assault, as “Actual violence or actual assault is essential to the commission of this crime, even upon a girl under the age of consent.” This language is particularly urged in support of defendant’s contention here. Neither the circumstances of the case or quoted portion of the charge are analogous. In this case there was direct proof of an indecent assault, and the court particularly charged as elements of the crime that, to convict, the prosecution must prove “defendant made an assault with intent to unlawfully and carnally know and abuse Margaret Boley,” and otherwise enlarged upon the distinctions and characteristics applicable to the offenses charged.

Defendant’s other assignments of error directed to matters arising during the trial have been examined but are not regarded as involving any reversible error or meritorious question requiring discussion.

Although the question is not shown to have been raised in the trial court, defendant’s last assignment of error attacks the constitutionality of Act No. 369, Pub. Acts 1919, under which the judge before whom he was tried held office and the recorder’s court of Detroit was reorganized, contending that he was not tried before a legally constituted court and his conviction was therefore a nullity.

It cannot be questioned that the recorder’s court as originally created was and is a lawful court with jurisdiction to try the kind of offense with which defendant was charged. It was continued in existence by the wording of the act questioned, which in specified particulars enlarged its jurisdiction, increased the number of judges and made other provisions relative to its organization and procedure. The court was organized and in operation pursuant to an act of the legislature presumptively valid, and the judge hearing this case was performing the duties of that office at a public session of said court under color of legal right to the same. ’ By the most narrow definition he was a de facto officer. Under such a situation we are of opinion that, in reason and by authority, sound principles of public policy prohibit collaterally attacking the legal existence of such a court or its de facto officers otherwise than in a direct proceeding by quo warranto. The subject is carefully reviewed with citation of authorities by Justice Stone in Gildemeister v. Lindsay, ante, 299, which in principle fully sustains this view and is controlling here.

The conviction and sentence will stand affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.