source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PEOPLE v. DETTENTHALER. PEOPLE, ex rel. GROSVENOR, v. CALKINS.
    1. Constitutional Law — Construction—Style of Statutes.
    No constitutional provision will be construed as merely directory. So held in a case involving the validity of a statute in the passage of which article 4, § 48, of the State Constitution, requiring the style of laws tobe, “The People of the State of Michigan enact,” was disregarded.
    2. Same — Amendment—Legislative Proceedings — Evidence.
    Parol evidence that the clerk of the house of representatives noticed the absence of an enacting clause in a senate bill previous to its passage by the house, and brought the matter to the attention of the house, stating that he would enter such a clause, and that he did so before returning the bill to the senate with the advice that it had been so amended by the house, if admissible at all, is insufficient to show an authorized amendment.
    8. Same — Governor’s Signature.
    The fact that an enacting clause, which was not a part of an act as passed by the legislature, was supplied before the act was presented for the governor’s signature, does not make the act when signed by him a valid law.
    4. Same — Oleomargarine Law.
    Under the foregoing principles, Act No. 76, Pub. Acts 1897, entitled “An act to prevent deception in the manufacture and sale of imitation butter,” is unconstitutional.
    Exceptions before judgment from superior court of Grand Rapids; Burlingame, J. Certiorari to Jackson; Peck, J.
    Submitted'April 19, 1898.
    Decided December 6, 1898.
    Frank J. Dettenthaler was convicted of selling oleomargarine in violation of Act No. 76, Pub. Acts 1897. Reversed.

      Mandamus by the people of the State of Michigan, on the relation of Elliott O. Grosvenor, dairy and food commissioner, to compel J. Jay Calkins, police justice of the city of Jackson, to issue a warrant for the arrest of Henry A. Lincoln, charged with selling oleomargarine in violation of Act No. 76, Pub. Acts 1897. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Rood & Hindman and E. F. Sweet, for appellant Dettenthaler and respondent Calkins.

      Fred A. Maynard, Attorney General, and Frank A. Rodgers, Prosecuting Attorney (John G. Hawley and Rodgers, McDonald & Corwin, of counsel), for the people.
   Hooker, J.

These cases involve the validity of Act No. 76, Pub. Acts 1897, which is as follows:

“An Act to prevent deception in the manufacture and sale of imitation butter.
“Section 1. The People of the State of Michigan enact, that no person, by himself or his agents or servants, shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell, any article, product, or compound made wholly or in part out of any fat, oil, or oleaginous substance or compound thereof' not produced from unadulterated milk or cream from the same, which- shall be in imitation of yellow butter produced from pure unadulterated milk or cream from the-same: Provided, that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter.
“ Sec. 2. "Whoever violates any of the provisions of section one of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty dollars, nor more than five hundred dollars, and the costs of prosecution, or by imprisonment in the county jail, or state house of correction and reformatory at Ionia, for not less than six months nor more than three years, or by both such fine and imprisonment, in the discretion of the court, for each and every offense.
“Approved April 15, 1897.”

The evidence in the first-entitled cause shows that the defendant was convicted of the alleged offense of selling oleomargarine in contravention of this act. In the other, a complaint was made of a similar act to a justice, who refused to issue the warrant; and, on application, the circuit court denied a mandamus to compel it. The cases raise substantially the same questions, and were argued, and will be considered, together.

The validity of the law is questioned. The record shows that this was a senate bill, and passed the senate without the constitutional enacting clause. The records of the house show that the bill was reported by the committee on agriculture and the committee of the whole without amendment, and with the recommendation that it be passed. Under the head of “ Third Reading of Bills upon Passage,” the record of the house shows that:

“Pending the third reading of the bill, Mr. Chamberlain moved that the bill be recommitted to the committee of the whole, which motion did not prevail. The bill having been read a third time, and the question being upon its passage, pending the taking of the vote Mr. Graham demanded the previous question. The demand was seconded. The question being, ‘ Shall the main question be now put?’ the same was ordered. The bill was then passed, a majority of all the members-elect voting therefor by yeas and nays as follows: Yeas, 56; nays, 19.”

As this is the only time the bill was before the house, wé must find that the bill passed the house without an enacting clause, upless the contrary can be shown by other evidence. Counsel undertook to show that it was amended in this particular by the records of the senate and the testimony of the clerk qí the house. The evidence is, in brief, that, previous to the passage of the bill in the house, the clerk noticed the absence of the enacting clause, and brought it to the attention of the house, and said that he would enter one, and accordingly wrote the words in the original bill; i. e., the one which was then before the house. He did not testify that the house took any action upon it, or that any record was ihade of it. The senate record shows that the bill was subsequently returned to the senate, accompanied by a letter from the clerk of the house, reading as follows:

“House op Representatives, “Lansing, April 7, 1897.
“To the President op the Senate.
“Sir: I am instructed by the house to return to the senate the following bill : ■ Senate bill No. 6, file No. 24, entitled ‘A bill to prevent deception in the manufacture and sale of imitation butter,’ — and to inform the senate that the house has amended the same as follows: By inserting in line 1, section 1, after the words ‘Section 1,’ the i words, ‘The People of the State of Michigan enact.’
“Very respectfully,
“Lewis M. Miller,
“Clerk of the House of Representatives.
“In the passage of which, as thus amended, the house has concurred by a majority vote of all the members-elect. ”

It further appears that the senate concurred in such amendment.

.We must determine, therefore, whether the house is shown to have amended the bill by inserting an enacting-clause, and, if not, whether the law is valid without it.. The most that can be claimed is that there is oral testimony that the clerk announced its absence, and stated that-he would supply it. Inferentially, perhaps, we may say-that there was no objection made; but the evidence is silent as to what, if anything, occurred. There is nothing but this inference of silence which imports acquiescence in the amendment. There is nothing to show definite action by the house, which alone had power to amend the bill before it. So that, if the clause is essential to the validity of the act, we need not discuss the propriety of admitting parol evidence to prove an amendment which should be shown by the record if one was authorized. See Attorney General v. Rice, 64 Mich. 391; Hart v. McElroy, 72 Mich. 446 (2 L. R. A. 609); Sackrider v. Board of Supervisors of Saginaw Co., 79 Mich. 66.

Is the constitutional enacting clause a requisite to a valid law ? This must depend upon whether the constitutional provision is to be considered a mandatory provision or directory merely. See Const. Mich. art. 4, § 48. Among the authorities cited by the relator in support of his contention is that of Swann v. Buck, 40 Miss. 268. The constitutional provision is similar to ours, and it was held that a substantial compliance was sufficient. In that case the style of the resolution was, ‘ ‘ Resolved by the legislature of the State of Mississippi.” The court was unable to discover a previous judicial decision of the question, but quoted Mr. Cushing to the effect that the prescribed “ form must be strictly pursued, and that no equivalent language will be sufficient,” and, while declining to accept his rule, said:

It is necessary that every law should show on its face the authority by which it is adopted and promulgated, and that it should clearly appear that it is intended by the legislative power that enacts it that it should take effect as a law. These conditions being fulfilled, all that is absolutely necessary is expressed. The word ‘ resolved ’ is as potent to declare the legislative will as the word ‘enacted.’ ”

The case of McPherson v. Leonard, 29 Md. 377, held that the provision of the constitution of Maryland was directory, and that the omission of the words, “by the general assembly of Maryland,” did not render the law invalid. The question appears to have been treated as a new one. The case of City of Cape Girardeau v. Riley, 52 Mo. 427 (14 Am. Rep. 427), follows the Maryland case in holding the provision directory; the court saying that, after diligent search, no case holding to the contrary had been found. In this case, like the one before us, the entire enacting clause was wanting. In this connection we may add that previous decisions of the same court, holding the provision that writs should run in the name of the State was directory, were given weight. In our State a contrary holding will be found. See Forbes v. Darling, 94 Mich. 621. There are, however, cases which take a contrary view of the law, and adhere to the doctrine asserted by Mr. Cushing, and the late Mr. Justice Cooley, in his work on Constitutional Limitations (page 93, 6th Ed.), viz. :

“But the courts tread upon very [dangerous ground when they venture to apply the rules which distinguish directory, and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done, and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government must at all times shape their conduct; and, if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitution provisions which the people in adopting it have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time, at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end, — especially when, as has already been said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication.”

There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions ; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions, as they now stand, do not sanction the application. The question arose in Washington Territory, over a law fixing the seat of government, and the opinion of Cushing was quoted and followed. In re Seat of Government Case, 1 Wash. T. (N. S.) 116. The case of State v. Rogers (decided in 1875), 10 Nev. 250 (21 Am. Rep. 738), did the same. An extended discussion of the subject will be found in that case, in support of the proposition that the language of the constitution should -be literally followed. The opinion concludes with the following pertinent and emphatic language:

“Our constitution expressly provides that the enacting clause of every law shall be, ‘ The people of the State of Nevada, represented in senate and assembly, do enact as follows. ’ This language is susceptible of but one interpretation. There is no doubtful meaning as to the intention. It is, in our judgment, an imperative mandate of the people, in their sovereign capacity, to the legislature, requiring that all laws, to be binding upon them, shall, upon their face, express the authority by which they were enacted ; and, as this apt comes to us without such authority appearing upon its face, it is not a law.”

The case of State v. Patterson, 98 N. C. 662, is strong in its condemnation of the practice of treating constitutional requirements as directory. The case of Powell v. Jackson Common Council, 51 Mich. 129, is not in point, as the bill was duly and seasonably amended, if we may accept the statement of the briefs of the counsel and the syllabus. ' The trend of the weight ‘of the authority is, in our opinion, against the relator’s contention.

It is urged with some plausibility that the insertion of this provision previous to the signature by the governor is a sufficient compliance with the Constitution, from which we understand the claim to be made that, although the enacting clause was wanting when the bill came to the governor, it might have been supplied by him. But it is thought that this proposition is tenable only upon the assumption that the constitutional provision is directory merely. The governor has no power to make laws. The legislative power is in no part vested in him, being by section 1 of article 4 of the Constitution vested in the senate and house of representatives. It is not the design of the Constitution that he should legislate. His office is a check upon the, legislature, and he may compel a reconsideration of a bill by seasonably returning it to the appropriate house with his objections to it, and, when the legislature has adjourned, his neglect to sign it prevents it from becoming a law; but he has not the slightest power in framing the law. Indeed, it is a fundamental principle in American constitutions that the executive shall not make laws. The following language from the opinion in the case of State v. Rogers, 10 Nev. 250 (21 Am. Rep. 738), is apropos to this subject:

“Without the concurrence of the senate, the people have no power to enact any law. Every person at all familiar with the practice of legislative bodies is aware that one of the most common methods adopted to kill a bill, and prevent its becoming a law, is for a member to move to strike out the enacting clause. If such motion is carried, the bill is lost. Can it be seriously contended that such a bill, with its head cut off, could thereafter, by any legislative action, - become a law? Certainly not. The certificates of the proper officers of the senate and assembly that such an act was passed in their respective houses do not and could not impart vitality to any act which upon its face failed to express the authority by which it was enacted. ”

This being so, the only justification for the insertion of the enacting clause by the governor is to be found in the assumption that it is a clerical omission of an unimportant matter; and it might as well be held that one of the houses, or a clerk, or even the printer of the laws, might make the correction, as that the governor might do it.

Some of the States have sustained laws without enacting clauses, but we do not know of one that has made their validity depend upon the unauthorized action of some officer or person. They have preferred to rest their action upon the well-recognized distinction between mandatory and directory provisions. If the provision is mandatory that the law shall have a prescribed style, and the making of laws is confined to the legislative branch of the government, it cannot be consistently held that omissions of essential parts of a law may be supplied and corrections made by persons without authority; and the public necessities should be much greater than in the present case before such a proposition should be seriously considered. If, on the other hand, there is warrant for treating the provision as directory, a much less dangerous precedent is established. But, as has been shown, the weight of authority forbids it; and, in our opinion, it will be an unfortunate day for constitutional rights when courts begin the insidious process of undermining constitutions by holding unambiguous provisions and limitations to be directory merely, to be disregarded at pleasure. In the present case it will be much better that the legislature shall correct its mistake than that the courts shall sanction the irregular correction.

We are therefore constrained to hold that the law under discussion is void, and in the certiorari case the order is affirmed; in that of Dettenthaler the conviction is reversed, and no new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    PEOPLE v. WORDEN GROCER CO.
    1. Statutes — Subject-Mattek^Sufficiency of Title.
    The subject-matter of a statute intended to prevent adulteration of vinegar, or deception in its sale, is sufficiently expressed by a title reading, “An act in relation to the manufacture and sale of vinegar.”
    2. Same — Construction—Vinegar—Standard Ingredients.
    Act No. 71, Pub. Acts 1897, forbidding in section 1 the sale of cider vinegar containing less than one and three-fourths per cent, of cider vinegar solids, and providing in section 2 that “fermented vinegar” shall contain, in addition to such per cent, of solids contained in the fruit or grain from which it is made, two and a half tenths of one per cent, ash or mineral matter, requires that all fermented vinegar should come up to such standard, whether made from fruit or grain.
    3. Same — Public Policy — Legislative Considerations.
    In a prosecution for the sale of vinegar not in compliance with the statutory standard, a contention that the test provided for is arbitrary, unscientific, and not calculated to protect the public health against spurious vinegar, will not be considered, since the investigation of facts entering into questions of public policy merely is exclusively within the province of the legislature.
    4. Same — Reasonableness—Province of Jury.
    Tne question of the reasonableness of a statute cannot be submitted to a jury, to be determined from expert testimony.
    5. Pure-Food Laws — Prosecutions for Violation — Due Process of Law.
    One charged with the sale of vinegar not in compliance with the statutory standard is not entitled to have a sample of the vinegar left with him by the prosecution, nor can he complain, upon conviction, that he was deprived of his property without due process of law because he was unable to obtain a sample for analysis, where he was not prevented from doing so by any person interested in the prosecution of the suit.
    6. Same — Intent.
    Guilty knowledge or intent is not an element of the offense of selling vinegar below the standard prescribed by Act No. 71, Pub. Acts 1897.

    Exceptions before judgment from Kent; Adsit, J.
    Submitted November 18, 1898.
    Decided December 6, 1898.
    The Worden Grocer Company was convicted of selling low-grade vinegar, in violation of Act No. 71, Pub. Acts 1897.
    Affirmed.

      Rood & Hindman, for appellant.

      Fred A. Maynard, Attorney General, Frank A. Rodgers, Prosecuting Attorney, and Benn M. Corwin, Assistant Prosecuting Attorney, for the people.

       How far intent is an element of a crime is considered at length in a note to People v. Flack, (N. Y.) 11 L. R. A. 807.

   Long, J.

The complaint in this cause charges that the defendant—

“On February 5, 1898, did unlawfully sell and deliver to John T. Owens, of Benton Harbor, Michigan, a large quantity, to wit, one barrel, of vinegar, which was not then and there in compliance with the provisions of Act. No. 71, Pub. Acts 1897, in this, viz.: That said vinegar was sold as ‘fermented cider vinegar,’ and branded as such; that said vinegar contained less than one and three-fourths per cent., by weight, upon full evaporation (at the temperature of boiling water), of solids contained in the fruit from which said vinegar is fermented, to wit, one and fifty-one one-hundredths per cent, of solids; and said vinegar contained less than two and a half tenths of one per cent, ash or mineral matter, the same being the product of the material from which said vinegar was manufactured, to wit, eight one-hundredths of one per cent, of ash or mineral matter; against the form of the statute in such case made and provided,” etc.

The cause was commenced in the police court, and, being removed to the circuit, came on to be heard before a jury. The defendant refused to plead, and counsel for defendant thereupon made a motion to quash the complaint and summons for several reasons, which will be hereafter discussed. The court, upon the trial, directed a verdict of guilty, and the cause comes to this court on exceptions before judgment.

The title of the act reads, “An act in relation to the manufacture and sale of vinegar, and to repeal Act No. 224 of the Public Acts of 1889, approved,” etc. Sections 1 and 2 of the act, being the sections in question, provide:

“ Section 1. The People of the State of Michigan enact, that no person shall manufacture for sale, offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any vinegar not in compliance with the provisions of this act. No vinegar shall be sold as apple, orchard, or cider vinegar which is not the legitimate product of pure apple juice, known as apple cider, or vinegar not made exclusively of said apple cider, or vinegar into which foreign substance, drugs, or acids have been introduced, as may appear upon proper test, and upon said test shall contain not less than one and three-fourths per cent., by weight, of cider vinegar solids, upon full evaporation at the temperature of boiling water.
“Sec. 2. All vinegar made by fermentation and oxidation without the intervention of distillation shall be branded ‘Fermented Vinegar,’ with the name of the fruit or substance from which the same is made. And all vinegar made wholly or in part from distilled liquor shall be branded ‘Distilled Vinegar,’ and all of such distilled vinegar shall be free from coloring matter added during or after distillation, and from color other than that imparted to it by distillation. And all fermented vinegar not distilled shall contain not less than one and three-fourths per cent., by weight, upon full evaporation (at the temperature of boiling water), of solids contained in the fruit or grain from which said vinegar is fermented, and said vinegar shall contain not less than two and a half tenths of one per cent, ash or mineral matter, the same being the product of the material from which said vinegar is manufactured. And all vinegar shall be made wholly from the fruit or grain from which it purports to be or is represented to be made, and shall contain no foreign substance, and shall contain not less than four per cent.., by weight, of absolute acetic acid.”

It appears by the testimony that the defendant, a Michigan corporation, doing business at Grand Rapids, on February 5, 1898, sold a barrel of vinegar to one John T. Owens, of Benton Harbor. The sale is admitted. A sample of the vinegar was taken from this barrel, and analyzed by the State analyst, Mr. Fred H. Borradaile. The correctness of this analysis is not disputed. This analysis showed that the vinegar did not comply with the requirements of the statute, in that it did not contain the amount of solids nor the amount of ash or mineral matter required. The contentions made by counsel for defendant mostly relate to the validity of the act.

1. It is contended that the title to the act does not express any object; that the act was intended to prevent deception in the sale of vinegar, or to prevent adulteration of vinegar, but that no such object is expressed in the title, and that the act is therefore in conflict with section 20 of article 4 of the Constitution of this State, which provides that “no law shall embrace more than one object, which shall be expressed in its title.” We think this contention sufficiently answered by what was said by this court in Soukup v. Van Dyke, 109 Mich. 681. There the title was, “ An act relative to justices’ courts in the city of Grand Rapids.” It was said:

“The title is sufficient if it fairly and reasonably announces the object, and that is a single one. If this requirement be observed, the legislature must determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title in defining it.”

In People v. Kelly, 99 Mich. 82, the title under discussion was, “An act relative to disorderly persons, and to repeal,” etc. See, also, State, ex rel. Weir, v. Davis Co. Judge, 2 Iowa, 280; McAunich v. Railroad Co., 20 Iowa, 342.

2. Counsel contend that, the complaint being drawn under section 2 of the act, no conviction can follow; that, if any violation of the law be found, it is of section 1, and not of section 2, of the act; that, therefore, the complaint was drawn under the wrong section. This contention cannot be sustained. It is plain, from the reading of these sections, that the legislature intended that all fermented vinegar should come up to the required standard, whether made from fruit or grain.

3. The defendant contends that the act is unreasonable, and therefore void, as beyond the police power of the State, in that the test for cider vinegar in regard to solids is arbitrary, unscientific, and not calculated to accomplish the end sought by the legislature, viz., to protect the public health against spurious vinegar; that such test is no test, because:

(a) Said solids and ash "are indifferent ingredients of vinegar, from a hygienic standpoint.
(b) Their comparative absence or presence is not an essential ingredient of pure apple cider vinegar.
(c) A vinegar can be manufactured which will satisfy the requirements of the statute, and yet contain no materials from apples or the product of apples.
(d) A pure apple cider vinegar is frequently made which is below the requirements of the statute in solids and ash.
(e) The less proportion of solids is a proof of greater purity in the vinegar, and of its better keeping qualities.

These questions might very properly be addressed to the legislature, but are matters with which the court has nothing to do. It is not a part of the functions of the court to investigate the facts entering into questions of public policy merely. Under our system, that power is lodged in the legislative branch of the government. It belongs to that branch to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or °the public safety. Barton v. McWhinney, 85 Ind. 481; Mugler v. Kansas, 123 U. S. 660; Powell v. Pennsylvania, 127 U. S. 685. In People v. Snowberger, 113 Mich. 92, it was said by this court:

“The act may work hardship in many cases, but that question is one to be addressed to the legislature, and not to the courts.”

The question of the reasonableness of the acts found' in many States relative to the sale of milk below a certain standard has been frequently raised in the courts, and the acts upheld. In Com. v. Evans, 132 Mass. 11, the court, passing upon such a statute, said:

“The intention of the legislature, and the practical operation of this section in connection with the third section, is to provide that it shall be unlawful to sell milk containing less than 13 per centum of milk solids. This belongs to the class of police regulations designed to prevent frauds, and to protect the health of the people, which it is within the constitutional power of the legislature to enact.”

In State v. Smyth, 14 R. I. 100 (51 Am. Rep. 344), the court said:

“It was the purpose of the statute to prohibit, not only the dealing in milk which had been adulterated, but also in milk of such inferior quality as to fall below the standard named in section 3. It is equally a fraud on the buyer whether the milk which he buys was originally good and has been deteriorated by the addition of water, or whether in its natural state it is so poor that it contains the same proportion of water as that which has been adulterated.”

See, also, Shivers v. Newton, 45 N. J. Law, 469; Bertholf v. O’Reilly, 74. N. Y. 509 (30 Am. Rep. 323); State v. Campbell, 64 N. H. 403 (10 Am. St. Rep. 419).

But counsel contend that the reasonableness of this act is a question of fact for the jury to determine from the expert chemical evidence. This question is neither for the court nor the jury to determine. In People v. Cipperly, 101 N. Y. 634, 37 Hun, 324, that very question was discussed, and decided adversely to the claim here. It was said:

“The defendant takes the broader ground that the legislature cannot, under the constitution, prohibit the sale of milk drawn from healthy cows, which, in its natural state, falls below the standard fixed by the act, unless such milk, or the articles made from it, are in fact unwholesome or dangerous to public health. How is that question of fact to be determined? The court cannot take judicial notice whether milk below the standard is or is not unwholesome or dangerous to public health. Is that to be a question for the jury? If so, the court must charge a jury in each case that, if they find milk below that standard to be unwholesome, then the statute is constitutional; if they find it to be wholesome, then the statute is unconstitutional. Evidently a constitutional question cannot be settled, or, rather, unsettled, in that way. The constitutionality would vary with the varying judgments of juries.”

In the emery-wheel case before us in People v. Smith, 108 Mich. 534 (32 L. R. A. 853, 62 Am. St. Rep. 715), a somewhat similar question-was discussed. It was said:

“If the courts find the plain provisions óf the Constitution violated, or if it can be said that the act is not within the rule of necessity in view of facts of which judicial notice may be taken, then the act must fall; otherwise it should stand.”.

See, also, People v. Girard, 145 N. Y. 109 (45 Am. St. Rep. 595).

4. Counsel also contend that defendant was not allowed, nor could it obtain, a sample of the vinegar in question for analysis, and was deprived of the right to produce evidence as to the amount of solids in the vinegar; and was thus deprived of property without due process of law. The record shows that the defendant was not prevented from getting a sample of the vinegar by any person interested in the prosecution of the suit. The record shows that the only effort it made to get such sample was a letter written to Mr. Owens, who had bought and paid for the vinegar, requesting him to return it, to which the defendant received no reply; and it does not appear that Mr. Owens had any of the vinegar left at that time. No sample was left with the defendant by the prosecution, nor was this necessary. Com. v. Coleman, 157 Mass. 460.

5. This statute forbids the manufacture and sale of vinegar not in compliance therewith, and persons manufacturing or selling vinegar below the standard do so at their peril. It is no defense that the person so manufacturing or selling vinegar below the standard has no knowledge that it is not within the standard prescribed. People v. Snowberger, 113 Mich. 86.

We have examined the other questions raised, but do not deem it necessary to discuss them. They relate mostly to offers of testimony which the court below ruled out, and, we think, properly.

The testimony was uncontradicted that the vinegar sold was not in compliance with the statute. The sale was admitted. The court was not in error in directing the verdict.

The conviction must be affirmed.

Montgomery, Hooker, and Moore, JJ., concurred. Grant, C. J.. did not sit.


author: Montgomery, J.

text:
    LILLIE v. SNOW.
    Quieting Title — Maintenance of Bill — Procuring Tenant to Surrender Possession.
    The fact that defendant in a bill to quiet title lost possession of the lands in suit through the action of complainant’s agent in inducing defendant’s tenant to surrender possession in order to enable complainant to maintain the bill under 3 How. Stat. § 6626,'which authorizes such a suit “against.any person not in possession,” is no defense, where defendant’s title had been cut off by a valid tax deed to complainant; the tenant having the right, under such circumstances, to attorn.
    Appeal from Muskegon; Russell, J.
    Submitted October 6, 1898.
    Decided December 6, 1898.

      Bill by Ella H. Lillie against James Snow and others to quiet title. From a decree for complainant, defendant Snow appeals.
    Affirmed.

      Walter I. Lillie (Stephen JET. Clink, of counsel), for complainant.

      C. W. Sessions (Arthur Jones, of counsel), for defendant Snow.
   Montgomery, J.

This is an appeal from a decree in complainant’s favor, in a bill filed under section 6626, 3 How. Stat., to quiet title to certain lands in Muskegon county. Complainant showed title in herself under a tax deed which established title in herself as against defendant Snow, who held the original title. The only defense attempted was that complainant was not in a position to maintain the bill, for the reason that she had, through her husband and agent, acquired the only possession which she obtained by unfair means, and with the purpose of filing the present bill.

The facts, as disclosed by the record, are that one Louis Rollenhagen became the purchaser of the lands in question under a decree for the taxes of 1893. On the 20th of April, 1897, Rollenhagen conveyed to complainant. At this date defendant Snow was in possession of the property by a tenant, one Sterenburg. Shortly after complainant’s purchase, the husband of complainant visited the premises, and, after some negotiations, an agreement was made with the tenant that he vacate the premises and yield up possession to complainant upon complainant paying him the sum of $25, and agreeing that he (Sterenburg ) should have the privilege of harvesting a portion of the potatoes then planted. This agreement was effected after Mr. Lillie had stated that he would have the right to apply for a writ to put complainant in possession, and upon his statement that he would prefer to pay the $25 to him (Sterenburg) than to pay a like amount in expenses-Mr. Lillie testified that he had in mind the filing of a bill at this time.

Does the fact that he had this purpose, together with his obtaining possession in the manner stated, bar the complainant from remedy under this statute? This, it seems to me, should depend on whether he committed any wrong in acquiring possession. The* statute provides that any person having the actual possession and legal or equitable title to lands may institute a suit in chancery, etc. Complainant is therefore within the letter of the statute. It has been held, however, that where possession has been obtained by the complainant’s wrongful conduct,' he is not within the spirit of the statute, and cannot maintain a bill. Defendant relies on these cases. The first is Stetson v. Cook, 39 Mich. 750. In that case it appeared that one Ellis was in possession of the land under parties in privity with defendant. Complainant made arrangements with Ellis by which complainant was let into possession, and immediately filed the bill to quiet title. The case was not one in which the title of the landlord had terminated either by lapse of time or operation of law, and hence was not within the exception to the general rule that a tenant cannot dispute the landlord’s title until he has been reinvested with possession. It is apparent, therefore, that Ellis had been induced to yield up possession in violation of the landlord’s rights. It was held that the statute was not intended to reach a case where a party acquires possession by sharp practice.

The ease of Watson v. Lion Brewing Co., 61 Mich. 595, is also cited. In this case the defendant was in actual possession. The title under which defendant claimed had not terminated, and yet complainant unfairly and surreptitiously gained possession for the express purpose of filing the bill. It was held that he was not entitled to maintain the bill. It is apparent that the court in this last case did not intend to go further than to exclude this remedy in cases where the possession was taken wrongfully or surreptitiously, for in Board of Supervisors v. City of Grand Rapids, 61 Mich. 173, the same justice who wrote the opinion in Watson v. Lion Brew ing Co. held that where no other person or municipality had actual or exclusive possession, and the complainant, on the 8th of October, fenced in the locus in quo, and maintained possession until October 24th, the complainant had shown & right to maintain the bill.

In the present case the title of defendant had been terminated by operation of law. It was therefore lawful, and no breach of any duty which he owed to the defendant, for the tenant to surrender possession to the true owner. McGuffie v. Carter, 42 Mich. 497; Lamson v. Clarkson, 113 Mass. 348 (18 Am. Rep. 498); Jenkinson v. Winans, 109 Mich. 524. It is difficult to conceive how it can be said that the complainant is in any way culpable in acquiring possession in the manner in which she did. Her title is not disputed. No force was used. No wrongful collusion with one in privity with defendant is shown. She took possession of what was her own, and, having acquired such possession and maintained it for some weeks, filed this bill, which, under the express language of the statute, she was authorized to maintain.

The decree will be affirmed.

The other Justices concurred.


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    TATRO v. BROWER.
    1. Assumpsit — Breach of Warranty — Damages.

      Assumpsit will lie to recover damages for the breach of an. express warranty as to the quality of an article sold, although, such damages are consequential in their nature.
    2. Sale — Defective Tank — Negligence of Purchaser — Question for Jury.
    The question as to whether a purchaser of tanks for the purpose of storing cider therein should, as a reasonably prudent man, have taken warning from the bursting of a lug on the empty tank, and removed his cider from the other tank, which subsequently burst, is for the jury, where the vendor assumed to account for the first break, and assured the purchaser that the tanks were all right.
    Error to Berrien; Coolidge, J.
    Submitted October 6, 1898.
    Decided December 6, 1898.

      Assumpsit by Louis N. Tatro against Jacob Brower for breach of warranty. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      O’Hara & O’Hara, for appellant.

      Gore & Harvey, for appellee.
   Montgomery, J.

This is an action of assumpsit upon an express warranty in the sale of certain storage tanks by defendant to plaintiff. The tanks were purchased by plaintiff for the purpose of storing cider in them. This purpose was known to defendant. There was conflict in the testimony as to the fact of warranty. The jury found with the plaintiff. The plaintiff’s testimony on the subject of damages tended to show that, after the tanks were furnished, he caused one of them to be filled with cider, and, when this tank was nearly filled, the lug on the lower hoop of the empty tank broke. Plaintiff sent word to the defendant, requesting Mm to come and fix it. This the defendant refused to do, but plaintiff testifies he caused the lug to be fixed, and a few days later- met the defendant, who again assured him that the tanks were all right; that the break was probably caused by a flaw in the iron, and that it would not occur again. The plaintiff then proceeded to fill both tanks. Some two months later certain of the lugs on the tank first filled broke, the staves spread, and the contents of the tank, 5,000 gallons of cider, were lost. Plaintiff recovered, and defendant brings error.

The defendant contends that the action is one sounding in tort, and that as it originated in justice’s court, and the amount claimed is more than $100, no jurisdiction was obtained. The fact is, however, that the declaration is in form in assumpsit, and it follows that the defendant’s objection is without force, unless we accept the view of defendant that, for damages which are consequential, the only remedy is in case. We do not find this contention supported by authority. On the contrary, the rule is that the plaintiff may in some cases choose between assumpsit and case, but where there is an express warranty the plaintiff may in assumpsit recover adequate damages. 28 Am. & Eng. Enc. Law, 823; Dushane v. Benedict, 120 U. S. 630; Carter v. Glass, 44 Mich. 154 (38 Am. Rep. 240), and cases cited.

The only remaining question which merits discussion is whether the instructions properly presented the case to the jury. Defendant’s counsel argue with much force that plaintiff discovered the defective character of these tanks in time to have avoided the loss of the cider by the exercise of ordinary caution. Upon full consideration, we are, however, of the opinion that it was a question for the jury, under proper instructions, as to whether the plaintiff, as a reasonably prudent man, should, by the bursting of a lug-on the empty tank, have taken warning, and removed the cider from the other tank. In reaching this conclusion we take notice of the fact that the lug which broke was not on the tank the bursting of which afterwards caused the damage, and, further, of the fact that the defendant after-wards assumed (according to plaintiff’s testimony) to account for the first break, and assured plaintiff that the tanks were all right again. The question was for the jury. Was it properly submitted? Defendant submitted numerous requests along this line, which were not given in the language of counsel, but the circuit judge charged the jury on his own motion as follows:

“Of course, the plaintiff was bound to use good faith. If, after purchasing the tanks, he knew or learned of any defect in the construction of the tanks, it became his duty to communicate that to the defendant, or to take reasonable steps to repair them, and to use ordinary diligence,— that care which a man of ordinary intelligence and care would use under like circumstances. He would have no right to fill the tanks with cider when he had good reason to believe that they were dangerous and might burst. However, the plaintiff was not bound to make a critical examination of the tanks to see if the tank was defective, and he had a right to rely on his warranty. All that devolved upon him was simply that ordinary diligence which a man of ordinary intelligence and diligence would use under like circumstances. The question in this connection is simply this: Was the plaintiff negligent himself or reckless ? If so, he cannot recover damages for injuries which he could have prevented by the exercise of ordinary diligence, and which he foresaw himself or must have reasonably anticipated.”

We think this instruction embodies a correct statement of the law, and that it was not materially modified by other portions of the charge excepted to.

The judgment will be affirmed.

The other Justices concurred.


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    BUSHNELL v. ROWLAND.
    Equity — Conveyances—Parol Agreement — Specific Performance.
    Complainant, after deeding land to defendant upon the parol understanding that defendant should give back a “life-lease deed” to complainant, by the terms of which they might occupy the land together until the death of either, when the title should vest in the survivor, continued to live upon the premises with defendant, and to expend labor and money for the betterment of the land. Held, that there was such part performance as entitled complainant, upon defendant’s refusal to execute the deed, to maintain a bill under 2 How. Stat. § 6183, for specific performance.
    Appeal from Ionia; Davis, J.
    Submitted October 6, 1898.
    Decided December 6, 1898.
    Bill by Leonard Bushnell against Leonard Rowland for the specific performance of a contract. From a decree for complainant, defendant appeals.
    Affirmed.

      B. A. Hawley, for complainant.

      William O. Webster, for defendant.
   Montgomery, J.

This is a bill filed for specific performance of a contract. The complainant is a young man, and unmarried. The defendant is a man about 70 years of age, and also unmarried, and the uncle of complainant. In March, 1897, the complainant was the owner of 120 acres of land in the township of Campbell, Ionia county, which was mortgaged for about $3,000; the amount being represented in three mortgages, two of which were held by a Mrs. Powers, and the third, in the sum of $900, running to defendant. The complainant also owed unsecured debts amounting to about $500. The evidence shows that in March the complainant received an offer of $40 per acre for the lands in question from one William Whitney; the purchase price to be paid in 20 acres of land, at a valuation of $1,200, and the balance in cash. There is no dispute in the record of the fact that complainant received this offer. The complainant’s claim is that he informed defendant of this offer, and defendant proposed to him that he (complainant) deed to defendant, and that he (defendant) would give back a “life-lease deed,” so called, providing that each might occupy the land during the lives of both, and that at the death of either it should go to the survivor. Defendant further proposed to advance $3,500 upon the land, wherewith to. pay the mortgages and enable complainant to meet his outstanding indebtedness. This proposition complainant claims he accepted, and made a deed to defendant; that the execution of the so-called “life-lease deed,” and the payment of the balance coming to complainant over and above the mortgages, were postponed from the time the deed was made, in April, until some time in the month of June, when defendant refused to fulfill his part of the agreement, and ordered the complainant to leave the premises.

The question involved is wholly a question of fact. The complainant’s testimony shows that, after the agreement was entered into between the parties, they continued to live together upon the premises from April until June. The complainant continued to expend money in trimming the orchard and repairing the fences, and also continued to spend labor for the betterment of the place. This testimony would tend to show that, if complainant’s theory of the case was maintained by the proof, he had entered into a performance of the contract in such manner as would entitle him to relief by way of specific performance, under section 6183, 2 How. Stat. Upon the question of fact, the learned circuit judge found the case stated in the bill to be made out by the proofs. A careful reading of the testimony convinces us that this conclusion was fully justified. The parties are at direct variance in their testimony upon the main question, and in such cases we look for support to the one or the other in the surrounding circumstances. We find complainant’s version of the transaction supported by the subsequent conduct; and, furthermore, what is of great significance is that, if defendant’s theory be accepted, which is that the complainant deeded the land to him without reserving any consideration other than the payment of the mortgages upon the property, it would appear that the complainant voluntarily sacrificed the difference between the price offered by Mr. Whitney, viz., $4,800, and this, sum. This seems incredible, especially in view of the fact that defendant seems to have been a man of considerable means, and complainant a poor man. It is true, the defendant introduced testimony tending to show the value of this land to be much less than the offer of Mr. Whitney, and while it is probable, upon the whole testimony, that the land would not have sold for $4,800 in cash, yet we are fully satisfied that its value was from $3,600 to $4,000, while to the complainant, in view of the offer which he had from Whitney, it was worth much more.

The decree of the circuit court granted the relief prayed, and that decree will be affirmed, with costs.

Hooker, Moore, and Long, JJ., concurred. Grant, C. J., did not sit.


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    KOZMINSKI v. KUZNIAK.
    Fraudulent Conveyances — Homestead—Eights of Creditors.
    A judgment creditor cannot complain of a transfer by the debtor to his wife of lands the value of which at the time was less than the amount of mortgage and homestead interests therein.
    Appeal from Kent; Grove, J.
    Submitted October 7, 1898.
    Decided December 6, 1898.
    Bill in aid of execution by Jacob Kozminski and wife against John Kuzniak and wife. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Thompson & Temple, for complainants.

      McKnight & McKnight, for defendants.
   Montgomery, J.

This is a bill filed in aid of execution. The complainants recovered a decree for costs against the defendant John Kuzniak on the 17th of December, 1895. Kuzniak v. Kozminski, 107 Mich. 444 (61 Am. St. Rep. 344). On the 24th of December, 1895, defendant John transferred to his wife, the co-defendant, a city lot upon which they were then living, and had been for some years, the lot being in size 66x148 feet, and having a small tenement house in addition to the family residence. It appears by the testimony that this lot was bought in two parcels, the first 66x124 feet, and this was conveyed to defendant Teófila Kuzniak in 1880. The remaining 24x66 feet was conveyed by Thomas J. O’Brien, in 1889, to defendant John Kuzniak. The defendant Teófila Kuzniak mortgaged these premises for $800 to one Nicholas Schenhofen, and afterwards, on February 28, 1889, for the purpose of securing an additional loan of $400, executed a warranty deed to Schenhofen, which, however, was intended as a mortgage. In 1890 the parties, desiring to make a loan of the Grand Rapids Mutual Building & Loan Association, were advised that the property should be deeded to Mr. Kuzniak, and that he should become a member of the association; and thereupon Mr. Schenhofen made a conveyance to John Kuzniak, and a mortgage on the entire lot was given to the association in the sum of $1,500. This loan was afterwards transferred, and a mortgage is now held upon the property by Horace J. Tuttle in the amount of $1,350. As before stated, after this mortgage was made, the property was conveyed by the defendant John Kuzniak to his wife. The evidence shows the value of this property at the time of the transfer to have been not to exceed $2,500 to $2,800. The complainants’ counsel contend that as to a portion of this lot, at least, there was no homestead right. If we assume this to be true, yet under the ruling in Armitage v. Toll, 64 Mich. 412, the portion not set aside as a homestead should be first sold to satisfy the mortgage, and the homestead right would apply to the remainder. The mortgage and the homestead right exceed the value of the property, and did at the time of the transfer from defendant John to his wife. It is difficult to see how the complainants were in any way damaged by this transfer. The case is ruled by Nash v. Geraghty, 105 Mich. 382.

The decree below dismissing the bill is affirmed.

The other Justices concurred.


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    MORMAN v. HARRINGTON.
    1. Vendor and Purchaser — Fraudulent Representations — Evidence — Question for Jury.
    In an action by a vendor to recover the price of land, defendant testified that plaintiff represented to him, as an inducement to purchase, that he had examined the land, and found, at a certain depth below the surface, the same plaster rock that was to be found on adjoining land, where there were valuable quarries, with which defendant was familiar; that, relying on such representation, he made the purchase; and that the land proved to be worthless for plaster purposes. Held, that the evidence justified the submission to the jury of the question of plaintiff’s fraud.

    O. Same — Defense op Fraud — Estoppel to Assert — Recoupment.
    The fact that a vendee of land paid a balance on the purchase price, and received his deed, after the discovery of fraud on the part of the vendor, will not estop him to recoup his damages occasioned by the fraud, in an action by the ' vendor upon the vendee’s guaranty of stock transferred as part of the consideration.
    3. Same — Evidence op Value.
    In support of a defense of fraudulent representations as to the value of land, the vendee may show the price paid by the vendor.
    Error to Kent; Grove, J.
    Submitted October 7, 1898.
    Decided December 6, 1898.

      Assumpsit by Samuel A. Morman against Eli E. Harrington on a contract of guaranty. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      McGarry & Nichols, for appellant.

      Crane, Norris & Stevens, for appellee.

       The right to rely upon representations made to effect a contract as a basis for a charge of fraud is considered at great length in a note to Fargo Gaslight & Coke Co. v. Fargo Gas & Electric Co., (N. Dak.) 37 L. R. A. 593.

   Long, J.

On March 10,1893, the parties hereto entered into a land contract, by which the defendant became the purchaser from plaintiff of 40 acres of land in Kent county for the price of #7,000. Defendant paid thereon at the date of the contract $4,950 in cash or its equivalent, and turned over to plaintiff at the same time $2,400 of the preferred stock of the Gypsum Plaster & Stucco Company, at a valuation of $2,000; giving at the same time a written agreement to pay the plaintiff $2,000 for the stock whenever it should be rendered worthless by the insolvency of the company. This left only $50 of the purchase price unpaid, which defendant afterwards paid, taking his deed for the land. In May, 1895, the stock of the Gypsum Plaster & Stucco Company became worthless by the insolvency of the company, and plaintiff made demand upon the defendant for the payment of the $2,000. This action was commenced to recover the $2,000 under the contract. The defendant pleaded that the contract was procured by misrepresentations by the plaintiff as to the character of the land, and that he (defendant) was thereby deceived and defrauded, and that he would recoup his damages on the trial. He gave evidence that the lands were sold to him as plaster lands, but that they were in fact worthless for plaster purposes, and good only for farming. He claims that he was not informed that the lands were worthless for plaster until about 18 months after his purchase; that he thereupon employed experienced men to drill into the land at various points, and discovered its character, and so informed plaintiff. No question arises in the case over the fact that the stock was worthless, or that the plaintiff had a right to recover the $2,000. Neither was there any question but that the land was worthless as plaster land. The only question related to the alleged misrepresentations of the plaintiff as to the character of the land. The jury returned a verdict in favor of defendant, and the plaintiff brings error.

1. It is claimed by counsel for plaintiff that there was no evidence given on the trial of any fraudulent statements on the part of plaintiff which justified the court in submitting the case to the jury. The defendant testified on the trial as follows :

“ I asked him why he bought it, and why he wanted to sell it. He told me that at the time he bought it he was engaged in the manufacture of whiting; that business had run out, and he wanted to sell the land. I asked him about the plaster there, — the depth from the surface of the ground. I asked him how he knew about it. He said he had examined the land before he bought the last 20. I asked him what he found. He told me he found the same rock that they had at the Union Mills quarry. I asked him the depth. He said it was about 10 feet before they struck the rock. We talked about the matter considerably. I wanted to get what information he had about it. If I purchased it, I was purchasing it on his statement. I had never been on the land, or made an examination. I did not know whether it was plaster land or not, except as he told me. When he told me he had examined it, and found plaster there at the depth of 10 feet or thereabouts, I believed it. I relied upon his statements as true. I sought no other information than that given me by Mr. Morman in regard to the land, nor had I any other information ; and I purchased the land upon the representations made to me by Mr. Morman, and on nothing else. Morman told me he did not know what the combination might be on plaster; that they had practically gone out of the whiting business, and he did not need the land. He said they found the same rock they had in the Union Mills quarry. I was very familiar with the Union Mills quarry. The Union Mills quarry was from 8 to 12 feet below the surface. The top rock was about 8 feet below the surface. The lower strata or lime rock in the Union Mills quarry was from 12 to 13 feet thick. As to the extent of the Union Mills quarry, it was pretty even, except in places where there was no top rock. To the extent that they had quarried out, it was substantially even. The Union Mills quarry was situated about 60 rods from the land in question. The Union Mills Company land adjoins the Morman land, but it is not quarried up to the line.”

On cross-examination the defendant testified as follows:

“When I met Morman, on Pearl street, he told me to come to his office. I went to his office, and had a talk about the purchase of this property. He told me he was engaged in the manufacture of whiting when he bought this land. He did not tell me he bought it for the purpose of manufacturing whiting, but said he didn’t know but he might need it; there might be a combination in the plaster business, so that it would be best for them to own their own quarry. I asked him how he knew this plaster was there, and what there was. He said he examined it before he bought the second 30, — as I understood it, that he made an examination. I do not know whether he stated he made it personally or otherwise, but he examined the property before he bought the second 30, and he ascertained, either by personal examination or by having it examined, that there was plaster rock there. He had made an examination of the land to see what there was there, and he afterwards purchased it. He said he found the same rock that the Union Mills Plaster Company was working on, and that the depth— I was particular about the depth it was, and he said it was about 10 feet.
Q. And that was all he said upon his part, was it not, in respect to that matter ?
“A. Oh, we talked some about it; but what I was getting at was, what he knew there was in that land. If it was plaster land, I wanted to buy it. He said he found the same rock that the Union Mills was working on, and that it was at the depth of about 10 feet. Upon that statement I made the purchase.”

The court charged the jury, substantially, that under the undisputed evidence the plaintiff was entitled to recover the sum of $3,000, unless the defense of false representations set up by the defendant was established.by the evidence, and that the burden of proof was upon the defendant to establish it. Upon the question of false representations the court instructed the jury as follows:

“ If the jury are satisfied from all the evidence in the case that the plaintiff did make the representations substantially as claimed by the defendant, and as before stated, and are further satisfied from all the evidence that such representations were believed and relied on by the defendant, as claimed, and that such representations were in fact substantially untrue, as claimed by the defendant, as before stated, and that the defendant would not have made ~the purchase in question had the representations not been made, then the defendant is entitled in this action to recoup against the plaintiff the damages he suffered thereby; and this is true whether the representations were made by the plaintiff innocently or not, — the plaintiff being responsible for them in such case, although he believed them to be true. A representation made with a knowl- • e'dge that it is received in a sense that makes it deceptive is legally fraudulent. Designed partial statements which deceive, and concealment of facts such as to make those declared partial and misleading, are legally fraudulent. If, in this case, you find that the plaintiff represented to the defendant, during the negotiations for the sale of the land, that he had examined the land, and found it contained the same rock as the Union Mills Plaster Company land; and if you find that this statement was reasonably ■calculated to mean to the defendant, under all the circumstances shown by the evidence, that the land owned by the plaintiff, and which he was about to sell, contained plaster rock in the same degree and in the same way as the lands of the Union Mills Plaster Company, and that the defendant, under all the circumstances, had a right to understand the representation of the plaintiff in that way; and if you find that he purchased the land in reliance upon that representation, and in the belief, based on said representation, that the land contained plaster rock in the same ■degree and in the same way as the Union Mills Plaster Company land, ‘ and would not otherwise have purchased the same;’ and if you find that in fact this was not the ■case, and that the defendant was deceived through the representations made by the plaintiff, — then the defendant is entitled to recoup in this action the damages which he sustained on account thereof.”

It is true that this testimony was contradicted in great part by the plaintiff, but we are dealing simply with the ■question as to whether there was any testimony which warranted the court in submitting the question to the jury. We think the court was not in error in this. The land, or a large part of it, had no plaster upon it. If the testimony of the defendant be true, the plaintiff gave him to understand that he had made an examination of the land, ■or caused one to be made, and had found the same rock as in the Union Mills quarry; and this statement was', made in answer to an inquiry as to how the plaintiff knew about there being plaster there. It is a case where the plaintiff positively affirmed the facts concerning the quality and value of the land, and his assertion was something more than mere opinion. In the case of Jackson v. Armstrong, 50 Mich. 65, it was held that one who obtains land in a trade, and before doing so goes upon and looks at it, has nevertheless a right to show that he was misled by the representations of the other party, if they related to matters of which no one could adequately judge on a casual inspection, such as the capability of the land for drainage, and the reason why water was standing. In the present - case the value of the land consisted in the plaster rock. No one going upon the land and making a casual inspection could ascertain that fact, for the rock lies some feet beneath the surface. Defendant was assured by plaintiff that it contained the same rock as the-Union Mills quarry, which was a valuable property. This was a positive statement of a fact, and the defendant had a right to rely upon it, and was not bound to-verify it by an independent investigation. 2 Pom. Eq. Jur. § 895.

2. Counsel for plaintiff also claim that the defendant,, having paid the $50 due on the purchase price of the land, and taken the deed, with knowledge of the fraud, is now estopped from making the defense here set up, as the parties cannot be placed in statu quo. This contention cannot be sustained. The defendant by his plea set up the fraud in the transaction, and seeks to recoup his damages by reason of it. He had the right to elect his remedy. If he sought to rescind the contract, there would be some force in the contention made by plaintiff’s counsel. That is not what is attempted here by the defendant. He proposes to keep what he has received, and recover the damages he has sustained This he has the right to do; and the fact that he paid the balance of the purchase money, and received his deed, after the discovery of the fraud,. will not estop him from setting up the fraud in defense to the action. Warren v. Cole, 15 Mich. 265; Lenox v. Fuller, 39 Mich. 273.

3. It is also claimed that the court erred in permitting counsel for defendant to ask the plaintiff what he paid for the land. There was no error in this. The defense claimed false representations as to value, and in such cases a broad latitude is given. In Stone v. Covell, 29 Mich. 359, the action was for misrepresentation concerning a note and mortgage taken in exchange for chattels of the plaintiff. Plaintiff was allowed to show the value of the chattels. It was said:

“We think this was entirely proper. This was an •action for fraud in a bargain. In determining whether a fraud has been committed, it is always desirable to have the jury enabled to put themselves, as nearly as may be, in -the place of the parties, that they may fully appreciate the bearing of their conduct. The value of what is transferred on either side must bear more or less on the motives of both.”

See, also, Ganong v. Green, 71 Mich. 10.

4. Some contention is made that the court permitted the •defendant to show alleged frauds outside of those claimed by the pleadings. We have examined the testimony with •care, as well as the charge of the court, and are of the opinion that the court confined the defendant to the issues made by the pleadings. We think a discussion of this point is unnecessary. The theory of the plaintiff was submitted to the jury, and the court said to them:
“A question has come into this case. It relates to the fact as to whether the defendant relied solely upon the representations claimed to have been made by the plaintiff, and was induced thereby to purchase the land in question. Therefore, unless you find that Mr. Harrington did rely solely on the plaintiff’s representations, and •altered his condition solely in consequence of such representations, he would have no cause of complaint, and the plaintiff is entitled to recover.”

This part of the charge was certainly as favorable to fihe plaintiff as he could ask.

We find no error in the record, and the judgment must . be affirmed.

The other Justices concurred.


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    WEBBER v. LAWRENCE.
    Mortgages — Foreclosure—Personal Decree.
    A personal decree upon a bill to foreclose a mortgage will not be granted against one to whom the mortgagor conveyed; the mortgaged premises by a deed given as security for the. former’s promise, in a separate written agreement, to pay the> mortgage in case payment should be demanded by the mortgagee, where the latter was not a party to such agreement, and it could not be enforced in favor of the mortgagor because of his breach of its conditions.
    Appeal from Saginaw; Wilber, J.
    Submitted October 18, 1898.
    Decided December 6, 1898.
    Bill by William L. Webber, executor and trustee of the estate of Jesse Hoyt, deceased, against Frank Lawrence,. Edward Corning, and others, to foreclose a mortgage. From a decree of foreclosure denying a personal decree-against defendant Corning, complainant appeals.
    Affirmed.

      L. T. Durand, for complainant.

      John A. McKay, for defendant Corning.
   Hooker, J.

On November 10, 1894, Frank Lawrence-was the owner of a building in Saginaw, upon which he-had previously given a mortgage for $15,000. It was held by the complainant. Lawrence was embarrassed, pecuniarily, and on that day he obtained from defendant Corning his indorsement upon Lawrence’s note for $5,000, which Lawrence negotiated and obtained the money upon. At the same time he executed and delivered to Corning a warranty deed of the premises, which deed contained the following provision, viz.:

“The said Lawrence covenants that he is well seised of the above-granted premises in fee simple; that they are free from all incumbrances whatever, except a mortgage to William L. Webber, executor and trustee, for $15,000; and that he will, and his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever, except as against said mortgage to William L. Webber, executor and trustee as aforesaid, which said mortgage is assumed by said second party as a part of the consideration named herein.”

The consideration named in the deed was $20,000. Contemporaneously with this deed, the parties signed an agreement, duly acknowledged, referring to said deed, containing the following provisions:

“Now, it is hereby understood and agreed by and between the parties hereof that said deed is received in trust by the said Edward Corning to secure the said Edward Corning for his indorsement on a promissory note dated November 10, 1894, for $5,000, due in three months, made by Frank Lawrence, and indorsed by Edward Corning, and payable at the Second National Bank of the City of Saginaw, Michigan; and if said Frank Lawrence shall pay said note, or the renewals thereof, with the interest thereon, and also pay the principal and the interest on a $15,000 mortgage now on said property, held by William L. Webber as executor and trustee, and also keep up and pay all taxes and insurance on" said building, and save the said Edward Corning, his heirs or assigns, harmless therefrom, so that he will not be obliged to pay said matters, so that, at the end of five years from the date hereof, the said Lawrence shall not be indebted to the said Edward Corning for any amounts of money which he may be obliged to advance in payment of the said note first referred to, or said mortgage and interest to said William L. Webber, trustee, or for taxes or insurance, then said Edward Corning shall reconvey said property to said Frank Latorence, 'or to whom he may direct; and this deed is intended, and is given and accepted by both parties hereof, to further secure said Edward Corning, his heirs or assigns, for such other or further advances in money or other indorsements than herein referred to, and shall stand as a lien against said property until all such matters that Edward Corning, his heirs or assigns, holds that he has personally advanced or paid, until he has been fully paid for on such matters.”

Also, the following clause:

“In consideration of receipt of said deed above referred to, the said Edward Corning, his heirs and assigns, agrees to allow said Frank Lawrence to remain in possession of said property, to keep it for himself, or to lease the same to other parties, and collect the rents for the purpose above mentioned, and possess and handle the said property in every respect as though said deed had been in form a mortgage. ”

Also, the following clauses:

“Said Lawrence further agrees to collect all rents received from said building, and to deposit such rents in the bank, and the account to he known as ‘Frank Lawrence Special Account,’ and that no money is to be taken from said account, except in the payment of interest, taxes, insurance, and repairs on said building, or to apply on the principal of the same on the mortgage and note herein referred to.
“And said Edward Corning, his heirs or assigns, hereby agrees to provide funds for the payment of the said $15,000 mortgage held by William L. Webber, trustee, in case payment should be demanded, so that no expense, by foreclosure or otherwise, can be made to affect the interest of the said Lawrence; and said Corning hereby agrees that this agreement shall be binding upon himself for five years from the date hereof, and agrees not to incumber said property in any other manner than is herein specified, and that he will reconvey said property to said Lawrence, or to whom he may direct, by deed with covenants as to his own acts, when he has been paid all liabilities for which he may be liable as mentioned in this agreement.”

The bill in this cause was filed June 1, 1896, to foreclose the mortgage mentioned, and Corning is made a party defendant. In it the deed and agreement are set up, and the bill prays that Lawrence and Corning be decreed to pay the amount that shall be found due thereon, and that each shall be decreed to be liable to pay any deficiency arising from the sale of the premises. Lawrence filed a cross-bill, setting up the same instruments, and praying that Corning be decreed primarily liable for the amount of said mortgage, and to save him (Lawrence) harmless from a deficiency, if one should arise upon a sale of the premises; but this was stricken from the files upon motion. ■Corning answered the original bill. The circuit judge decreed foreclosure, and held that Corning was not personally liable for the debt or deficiency. The complainant has appealed.

Lawrence was the principal witness. His testimony shows that he did not deposit the sums received for rentals, or apply all of them in accordance with the terms of the agreement between him and Corning, having used upwards of $2,000 received from rentals for other purposes. It is not certain that this is all, for Lawrence admits that he did not keep an account of the receipts or disbursements; and it does not appear that he has paid the $5,000 note which Corning indorsed. The testimony shows that, before the conveyance and agreement were made, Lawrence and Corning called upon Webber, and an extension of time was obtained upon the mortgage; but the contemplated-arrangement was no part of the consideration for the ex-, "tension. Webber was not informed that such arrangement was in contemplation. Lawrence has been in possession of the premises, and Corning promptly disclaimed ownership ■and denied liability when Webber suggested that he pay the mortgage. It is plain that Corning was, at most, a mortgagee, and no one contends that he is owner of the premises. Consequently it cannot be said that the assumption of the mortgage constituted a part of the purchase price of the premises, and that Lawrence has put into his hands a fund to pay the mortgage with. The most that can be said is ■that Corning promised to advance money to pay the mortgage, upon demand, and that Lawrence gave him security by way of indemnity therefor; and the same instrument made it optional with Lawrence to make the demand, for it was conditioned upon the failure of Lawrence to pay the mortgage, among other provisions. As already stated, Lawrence failed to perform his part of the agreement, and is now seeking, through this proceeding, to-compel the defendant Corning to perform his. Were this an action at law brought by Lawrence to recover damages against Corning for his failure to advance the amount due upon the mortgage, his own breach of the contract would seem to be a sufficient answer. And, if he could not recover in such an action, a court of equity would not afford him relief in this. Hence, if this decree is to be-reversed, it must be by reason of some equity in Webber, the mortgagee.

It has already been said that there is no privity of contract between Webber and Corning, and that there is nothing in the nature of an estoppel, that renders it inequitable for Corning to refuse payment. He has received no fund that he is equitably bound to apply to such payment, and the land which he has taken a deed of (though it is a mere mortgage), if it can be called such a fund, is within the reach of Webber’s mortgage, against the foreclosure 'of which Corning makes no defense. Counsel for the respective parties have cited cases in support of their contentions, but we think it sufficient to say that it would be manifestly inequitable to give the complainant the benefit of an agreement which ought not to be enforced in favor of his mortgagor. While, under-our statute, a court of chancery has the authority to enter a decree for deficiency against one who equitably owes the-debt, through an assumption of thé mortgage debt as part of the purchase price of the premises, such action is always dependent upon an existing equity either between that person and the mortgagee, or more frequently between him and the mortgagor. Here there is no equity in favor of either. In Johnson v. Shepard, 35 Mich. 123, it was said:

“The jurisdiction over persons who have become liable on the debt is not obligatory, but is only permissive. When justice requires that the party shall have a chance to defend himself at law, or to seek redress in 'any other form against his liability, courts have refused a personal decree.”

See, also, North American Fire Ins. Co. v. Handy, 2 Sandf. Ch. 492, and Withers v. Morrell, 3 Edw. Ch. 560.

In Gage v. Jenkinson, 58 Mich. 173, the court said:

“The practice in this class of cases, of allowing a personal decree against even the mortgagor himself, comes from no original equitable jurisdiction, but springs from quite recent statutory authority; and the enforcement of collateral obligations of third persons in a foreclosure suit is a still more recent innovation, and the jurisdiction given over the latter class of persons is permissive only, and not obligatory, and will not be enforced to their prejudice, unless by their own contract or agreement they have themselves made necessary or imperative such enforcement. Johnson v. Shepard, 35 Mich. 115; McCrickett v. Wilson, 50 Mich. 513. There is no pretense in this case that the claimed liability of Jenkinson could be enforced at law.”

We are of the opinion that the learned circuit judge was clearly right in his disposition of the case, and his decree is affirmed, with costs.

The other Justices concurred.


text:
    WINEMAN v. FISHER ELECTRICAL MANUFACTURING CO.

    1. Chattel Mortgages — Legal Title.
    A chattel mortgage does not transfer the legal title to the mortgagee, but affords a security merely.
    2. Samjs — Assignment for Creditors — Labor Claims.
    A chattel mortgage executed by an insolvent to secure a creditor is not an assignment for the benefit of creditors, within 3 How. Stat. § 8749o, providing that a person having a preferred labor claim against an insolvent may proceed in chancery for the appointment of a receiver, if a common-law or other assignment for the benefit of creditors shall have been made by the insolvent.
    Appeal from Wayne; Adams, J., presiding.
    Submitted October 19, 1898.
    Decided December 6, 1898.
    Bill by Hugo A. Wineman against the Fisher Electrical Manufacturing Company and others to enforce a labor claim, under 3 How. Stat. § 8749o. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William Stacey, for complainant.

      George W. Bates, for defendants.

       Rehearing denied May 23, 1899.

   Montgomery, J.

The bill is filed in this case under the provisions of 3 How. Stat. § 8749m, to enforce a labor debt against the property of the Fisher Electrical Manufacturing Company, on the ground that certain chattel mortgages had been given on this property, which it is alleged is not sufficient to satisfy said mortgages and the labor claim of complainant. The bill prays that the said labor debt be decreed to be a preferred claim against the assets of the said Fisher Electrical Manufacturing Company, according to the provisions of said act, and that a receiver be appointed to collect tbe assets, and dispose of sufficient of them to pay said claim and the costs and expenses of these proceedings. The answer denies that the complainant’s claim is a labor debt, within the meaning of the statute, and further denies that complainant is entitled to relief in a court of equity under the averments of the bill. *

The section of the statute giving a remedy in equity is 8749o, and reads as follows:

“Any person having a preferred claim hereunder * * * may proceed in chancery for the appointment of a receiver, and the marshaling of assets, and the application thereof to the payment of the claim or claims involved, pro rata or otherwise, in case of any fraud affecting such claim or claims, or the recovery, satisfaction, or payment thereof, or if a common-law or other assignment for the benefit of creditors shall have been made by the defendants or any of them.”

The bill does not set up any fraud affecting complainant’s claim, or the recovery, satisfaction,' or payment thereof. The question, therefore, is whether a chattel mortgage is a common-law or other assignment for the benefit of creditors, within the meaning of this statute. It is clear that a chattel mortgage does not fall within the ordinary meaning of these terms. An assignment for the benefit of creditors is understood to mean a transfer for the benefit of the creditors generally, and not a security by way of mortgage given to one. Indeed, it is conceded that a chattel mortgage is not a general assignment for the benefit of creditors. But it is contended, first, that a-chattel mortgage is an assignment, for the reason that it transfers the legal title, and, second, that, even if it does not transfer the title, but is treated merely as a security, yet it is within the definition of an assignment. To sustain the contention that a chattel mortgage is a transfer of the legal title, Tannahill v. Tuttle, 3 Mich. 104 (61 Am. Dec. 480), is cited. This decision has since been modified. Lucking v. Wesson, 25 Mich. 443; People v. Bristol, 35 Mich. 28, in which latter case Mr. Justice Campbell said:

“Under the decisions of this court, mortgaged chattels do not cease to belong to the mortgagor until some steps are taken to end his rights by the enforcement of the mortgage. The mortgage is a mere security to the mortgagee, and not a transfer of title.”

While a chattel mortgage may, in a narrow sense, db said to be an assignment, it is not an assignment for the benefit of creditors, within the usual acceptation of that term. Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329. It would be an enlargement of this statute, not warranted by the text, to hold the terms employed to include chattel mortgages.

The decree dismissing the bill is affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    WRIGHT v. REINELT.
    Justices’ Courts — Misjoinder of Defendants — Abatement — Judgment on Appeal.
    A misjoinder of defendants in justice’s court in an action ex contractu is not remedied, iso as to sustain a verdict rendered in the circuit, upon their appeal, against only one of them, by Circuit Court Rule No. 27(c), adopted pursuant to 2 How. Stat. § 6409, making it the duty of the court to provide rules to prevent the abatement of suits for misjoinder; such rule having no application to cases originating in justice’s court.
    Error to Sanilac; Beach, J.
    Submitted October 19, 1898.
    Decided December 6, 1898.

      Assumpsit by John L. Wright against John Reinelt And Charles Reinelt for work and labor. From a judganent for plaintiff against defendant Charles, the latter '¡brings error.
    Reversed.

      J. S. Orandell and W. H. Burgess, for appellant.

      F. S. Viets and F. C. Babcock, for appellee.
   Grant, C. J.

Plaintiff brought suit in justice’s court, and recovered a verdict against both defendants. Both appealed. In the circuit court, plaintiff recovered verdict against defendant Charles, and the jury found defendant John not liable. The suit was for work and labor, claiming balance on settlement. In the circuit court, defendants pleaded a set-off.

The record contains none of the testimony, and the sole point raised is on the charge of the court. From this it appears that defendant Charles admitted his liability. The sole contention of defendant is that the suit was based apon a joint liability, and that the court erred in not instructing the jury that, if they found there was no joint liability, they must render a verdict for defendants. Cir. •Ct. Rule No. 27(c) was adopted to meet such cases as this which originated in the circuit courts. Bur gin v. Smith, 115 Mich. 239. It has no application to cases originating in justices courts. Anderson v. Robinson, 38 Mich: 407. The instruction should have been given.

Judgment reversed, and new trial ordered.

The other Justices concurred.