text:
    The City of Saginaw v. Daniel J. Campau.

      1Constitutional law — Eminent domain — Qualifications of jurors.

    In a street-opening case, a challenge to the array was interposed on the ground that, under the charter of the city, the persons listed to serve as jurors in the court where the proceedings were pending, and from which persons the jury had been drawn, were required to be qualified electors of fair character and sound mind, freeholders in said city, and capable of understanding and speaking intelligibly the English language, while the Constitution provides that, when private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, shall be ascertained by a jury of 12 freeholders residing in the vicinity of such property. And it is held that there is no constitutional objection to the Legislature imposing the additional qualifications mentioned in said charter.
    Appeal from recorder’s court of the city of Saginaw. (Brenner, J.)
    Argued October 25, 1894.
    Decided December 7, 1894.
    Petition to open and extend Houghton avenue in the city of Saginaw. Respondent appeals.
    Affirmed.
    The facts are stated in the opinion.

      Weadock & Purcell, for appellant.

      William G. Gage, for petitioner.
   Long, J.

Proceedings were commenced in the recorder’s court for the city of Saginaw to open and extend Houghton avenue, and to take private property therefor. No contention is made about the regularity of the proceedings, but when the jury was impaneled counsel for the respondent challenged the array, for the reason and on the ground that section 8 of title 15 of the charter of the city of Saginaw, under which the proceedings were being had, is in conflict with and in violation of sections 2 and 14 of article 18, and section 15 of article 15, of the Constitution of this State, in that it does not allow the respondent a jury of freeholders, within the clear intent and meaning of the above-mentioned provisions of the Constitution, but that by its terms the constitutional rights of respondent are circumscribed and abridged, so that no freeholder not possessing the special qualifications prescribed in the charter can sit as a juror in condemning land for public uses, whereas by the terms of the Constitution the respondent is entitled to have a jury of freeholders without any qualifications or limitations whatever, subject only to challenge for cause. This challenge was overruled, and the jury returned a verdict in favor of the city, awarding damages to respondent of $1,550. Respondent appeals.

Section 8, tit. 15, of the charter (Act No. 402, Local Acts of 1893) provides:

“ On the first Tuesday of June in each year, between the hours of 9 and 12 o’clock in the forenoon, the assessor of the city of Saginaw, the clerk of said .court, and the marshal of said city shall meet together in the office of said assessor in said city, and shall then proceed in public to select from the last annual assessment roll of said city (which roll the custodian shall produce before them) a list of 100 persons to serve as jurors in said court, the persons so selected to be qualified electors of fair character, of sound mind, freeholders in said city of Saginaw, and capable of understanding and speaking intelligibly the English language. Said list shall be signed by the said assessor, clerk, and marshal, if they be all present and assist in the making "thereof: * * * And provided further, that if said list is not selected within the time above limited, or if for any reason a legal list shall not have been made, the judge of said court may by his order, entered of record in said court, command the said assessor, clerk, and marshal to proceed forthwith to select said list and sign and file the same.”

Sections 2 and 14 of article 18, and section 15 of article 15, of the Constitution are as follows:

“Sec. 2. When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of 12 freeholders residing in the vicinity of such property, or by npt less than three commissioners appointed by a court of record as shall be prescribed by law: Provided, the foregoing provision shall in no case be construed to apply to the action of commissioners of highways in the official- discharge of their duty as highway commissioners.”
“Sec. 14.' The property of no person shall be taken for public use without just compensation therefor. Private roads may be opened in the manner to be prescribed by law; but in every case the necessities of the road, and the amount of all damages to be sustained by the opening thereof, shall be first determined by a jury of freeholders, and such amount, together with the expenses of proceedings, shall be paid by the person or persons to be benefited.”
“Sec. 15, art. 15. Private property shall not be taken for public improvements in cities and villages, without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders, and actually paid or secured in the manner provided by law.”

The case falls so squarely within the doctrine enunciated by this Court in People v. Harding, 53 Mich. 48, that dis-cussion is hardly necessary. In that case the respondent was convicted in the recorder’s court of the city of Detroit -of the crime of larceny from a store in the day-time. After the jury was impaneled, the respondent challenged the array, and for cause of challenge claimed that the act under which the jurors were selected was unconstitutional. That act provides, among other things, that the officers in selecting the jury “shall take the names of such only as are not exempt from serving on juries, who are in possession of their natural ■ faculties, and not infirm or decrepit, of good character of approved integrity, of sound judgment, and well informed, and conversant with the English language, and free from all legal exceptions,” etc. Comp. Laws 1871, § 5978, as amended by sections 7623-7630, How. Stat. The act was held valid. It was said:

“It will thus be seen the qualifications are to-day the same substantially as at common law. By the statute of 6 Geo. IY. chap. 50, Parliament attached certain property qualifications, and in this State the Legislature has added ■certain qualifications to protect the rights of parties, and provide an intelligent and impartial jury.”

It was held that the provisions of the Constitution— article 6, §§ 27, 28 — were not intended’ to limit the powers of the Legislature thereafter to change the law relati ve to the maimer of selecting jurors, or to the persons or officers who should make the selections, or the lists-from which the selections should be made; and that the only restriction upon the legislative powers is that jurors shall have the qualifications of electors, and that they shall reside in the vicinage.” Under the charter in question the jurors are to have the0 qualifications of electors- and reside in the vicinage, and we see no constitutional objection to the Legislature imposing the other qualifications attached. These qualifications are very similar to-those in People v. Harding, supra, and thus applied to criminal trials. The court below was not in error in overruling the motion.

It is also insisted that the court was in error in permitting the petitioner to submit to the jury two blank forms of verdicts. We see no force in this objection, as the respondent could -not be harmed by it.

Judgment is affirmed

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    The People v. James Taugher.

      Criminal law — Larceny—Intent.
    Where, in a prosecution for larceny, it appears that the respond-r. ent’s possession of the property was lawful in the first instance, his mere refusal to deliver it to the owner on demand will not warrant a conviction.
    Exceptions before judgment from Muskegon. (Dicker-man, J.)
    Submitted on briefs October 25, 1894.
    Decided December 7, 1894.

      Respondent was convicted of the crime of larceny..
    Conviction reversed, and respondent discharged.
    The; facts are stated in the opinion.

      Jerome E. Turner, for respondent.

      A. A. Ellis, Attorney General, and Charles B. Cross,, Assistant Prosecuting Attorney, for the people.
   Grant, J.

The respondent was convicted, under a common-law information, of the larceny of a buggy. The entire evidence upon which he was convicted is stated in the record as follows:

“That on the 19th day of July, 1893, Mrs. Taugher, wife of the defendant, came to the city of Muskegon with a horse and buggy, and while in said city her buggy was smashed by an electric car, and that Fred W. Thompson, superintendent of the electric railway, procured of Peter Damm, complaining witness in this cause, a buggy for the use of Mrs. Taugher, to enable her to return to her home, —the buggy to be returned by her on the following day; that Mrs. Taugher did not return the buggy; that after-wards, and on the 25th day of July,' 1893, Mrs. Taugher and defendant, James Taugher, came together to said city of Muskegon with said buggy, and were met on one of: the streets of said city by said Thompson and said PeterDamm; that Thompson said to Damm: 'Here is your-buggy; now, take it, and I will pay for one day, and they must pay for the rest; ’ that at this time defendant was in-the buggy, and his wife on the sidewalk, close to the-buggy; that Peter Damm then laid his hand on one of thethills of the buggy, and said, 'This.is my buggy, and I want it right here, now;’ that then Mrs. Taugher said to-Thompson, 'When are you going to fix my buggy?’ that. Thompson replied: 'I have nothing to do with it; you must, see Mr. Nims, the president of the company, about it;, that defendant did not leave the buggy, and that Damm: made no further effort to obtain the buggy; that defendant said, 'Let me have the buggy to take my wife toNims’ office, and I will return it on my way back,’ to-which Peter Damm consented, and released his hand from the thill of the buggy; that this conversation occurred about 11 o’clock in the forenoon; that Taugher and wife. •■went to Nims’ office, Tangher remaining in the bnggy while his wife went to Nims’ office, and were seen there ■and in the street in front of the office by Peter Damm, ■and that defendant remarked to Damm, ‘We are waiting for Mr. Nims; ’ that the bnggy was not returned to Damm, ■but was driven by Taugher and wife out to their farm, .about 4 miles from the city of Muskegon, the said farm ■being the home- of defendant, and the place where Mrs. Taugher wanted'to go on the day of the accident to her buggy. The next day, Damm drove out to the farm, saw Taugher, and told him he had come for the buggy. Taugher told him that his wife was out picking berries, and had the buggy with her. Taugher also said he had two horses, — a colt and an older one. Taugher then had one horse hitched to a cultivator, and a colt was seen by Damm running in a pasture on the farm. Taugher also fold Damm that his wife would not give up the buggy -until her own was fixed, and told Damm that he should go to the street-car company for his buggy, to" which Damm replied, ‘You want me to have a lawsuit to accommodate you?’ and Taugher said, ‘I guess you will have to.’ That Damm then searched Taugher’s premises, but •did not find the buggy; that Damm then returned to the city, and caused the arrest of Taugher for the larceny of ■a buggy; * * * that, at the time of Tangier’s arrest at the farm, Taugher told the officer that he (Taugher) never stole a buggy; that his wife went to town, and met with an accident, and that she got the buggy from Thompson, and still had it in her possession; that he (Taugher) had nothing to do with it whatever, and that the buggy was then in' the barn; that at the time of defendant’s arrest the officer did not search the barn or premises of .Taugher, but brought defendant to the city of Muskegon, .•and the next day went again to Taugher’s premises with iBaam, and searched the farm, but did not find the buggy; ythat on the same day, and after his return to the city of .Muskegon, the officer went to the jail where defendant '■was .confined, and asked him where the buggy was; that ■ defendant said in response that the buggy was up in the ■barn; that the officer then said to defendant: ‘ You know ibetter; it was not there yesterday, and it is not there to<day;’ that Taugher inquired if the officer had been up to,, the farm, and was told. ‘Yes;’ that the officer then told defendant that he had made inquiries of Mrs. Tangher, .and that she told him that the buggy was not there to-day, and was not there yesterday; that defendant thereupon told the officer that it was no use to pick him, as he would get nothing out of him; that defendant also told the officer ‘that may be some friends of mine in town may have the buggy; ’ that the officer asked for their names, and was told, by Taugher that he would not give ■their names, — that he would not put anybody in trouble.”

The respondent introduced no evidence.

It is contended by the attorney for the people that the respondent intended to steal the buggy from the outset, and that he requested and obtained. the consent of Mr. Damm to use the buggy temporarily with felonious intent. "We do not think that a felonious taking is established by the proof. He was in the lawful possession of the buggy when Damm approached him upon the street and demanded possession. Damm, by placing his hand upon the thill, did not recover possession.

The people rely upon the case of People v. Camp, 56 Mich. 548. In that case the respondent obtained possession of a horse from a boy, the son of the owner, who evidently had no authority to act for his father, and afterwards secreted him.

A felonious taking is essential to establish the crime of larceny at the.common law. Respondent’s possession was' lawful until the demand. He would be liable in a civil action of replevin or trover, but no criminal intent is shown.

It follows that the conviction must be set aside, and the respondent discharged.

The other Justices concurred.


text:
    Arminda Jourdan v. William Patterson and Sylvia Patterson.

      Deed — Delivery—Evidence—Burden of proof,

    1. In ejectment for dower, the defendants' claimed under a deed' signed and acknowledged by the plaintiff’s husband four days-before his marriage to the plaintiff, but which she claimed was not delivered until a few days before his death, at which time, her testimony tended to show, he was not competent to. make such delivery. And it is held that his condition at that, time was of no consequence, the sole issue being, was the deed delivered before the marriage, at which time no question as-to the competency of the husband was raised?
    2. The grantee testified that the deed was delivered to him the-day of its date. Previous to the commencement of the ejectment suit, in his answer to a bill filed to set aside the deed,, he had stated that the deed was delivered to him at a date-subsequent to the marriage of the grantor to the plaintiff, and this statement was introduced in evidence to contradict the-witness. On his redirect examination, he testified that he did not know what the word “delivery” meant in law, and was. then asked to state what he meant by the use of the word in his answer in the equity suit. And it is held that it was- ' proper for him to explain, if he could, what he understood by the term.
    3. The grantee admitted that the deed was kept in a locked box in the grantor’s house, and that he obtained the key from the-grantor (his father) two or three days before his death, unlocked the box, and took the deed out. And it is held that, under these circumstances, there was no presumption of' delivery arising from the deed itself or the record thereof, and that the burden of proof was upon the defendants to show its-delivery.
    Error to Ottawa. (Padgham, J.)
    Argued October 24,. 1894.-
    Decided December 7, 1894.
    Ejectment. Defendants bring error.
    Eeversed.
    The* facts are stated in the opinion.

      Stephen H. Clink, for appellants.

      Farr & Soule, for plaintiff.
   Grant, J.

Plaintiff and one Joseph Jonrdan were married March 22, 1887. He died December 28, 1891. At-the time of his marriage he was in possession of the real estate in which the plaintiff now seeks to recover dower. Four days before the marriage, he made, signed, and acknowledged a deed so his son, Pearley Jonrdan, which was not recorded until after his death. Defendants were in possession under Pearley Jonrdan. If the execution became complete by delivery before the marriage, plaintiff is not entitled to dower. If the execution failed by nondelivery until after the marriage, she is entitled to recover. The only issue, therefore, before- the jury, was the time of delivery.

1. Plaintiff claims that the deed was delivered a few days before Joseph's death. Evidence was admitted tending to show that he was not at that time competent to deliver the deed, by reason of his illness. Its admission was error. His condition on that day was of no consequence, and would naturally prejudice a jury against the son, the real party in interest; the sole issue being, was the deed delivered before the marriage, at which time no question is raised as to competency ?

2. Previous to the commencement of this action a bill had been filed against Pearley Jonrdan to set aside the deed. To this, Pearley filed an answer, in which it was stated that the deed was made and executed March 18, 1887, and was duly delivered to him December 25, 1891. Pearley testified in this case that the deed was delivered the day it bore date. This statement in the answer was introduced to contradict him. On his redirect examination he testified that he did not know what the word “delivery” meant in law. He was then asked to state what he meant by the use of the word in his answer in the equity case. We think it was proper for him to ■explain, if he could, what he understood by the term. A ■layman might use the word “delivery” when the act to which he referred would not constitute the delivery required to effect a complete execution of a deed.

3. The judge instructed the jury that the burden of proof was upon the defendants to show the delivery of the ■deed. This was not error, under the circumstances of this case. Pearley Jourdan admitted that the deed was kept in a locked box in his father’s house, and that he obtained the key from his father two or three days before his death, unlocked the box, and took it out. Under these circumstances, there was no presumption of delivery arising from •the deed itself or the record thereof. Patrick v. Howard, 47 Mich. 45.

There are many other assignments of error, but it is unnecessary to mention them. In some, no objection was made. In others, when the testimony was offered, defendant’s counsel only said, “I object.” This forms no basis for an exception. Hutchinson v. Whitmore, 95 Mich. 592; Young v. Stephens, 9 Id. 507. In those assignments where ■the objection was properly taken there was no error, and ■it would be of no profit to the profession to discuss them here.

For the reasons above given, the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    Emery Lewis and Alberthy Lewis v. Louis H. Kean et al.

      Equity practice — Payment under decree — Register in chancery.

    1. A party may object that bis money be intrusted to an officer of the court, and he has a right to be heard before such an order is made.
    2. In the absence of an order by the court, the payment of the-amount due on a chancery decree to the register in chancery is not binding upon the party entitled to the money, and he may entirely ignore such payment.
    3. A chancery decree directed the payment of a certain sum of money to the complainants, or their solicitor, within a stated time. The defendant failed to pay or tender the amount to-the complainants, and refused to pay it to their solicitor, although the complainants gave the solicitor written authority to receive the money, which he showed to the defendant, and demanded payment. On the last day fixed for payment, the defendant deposited with the register in chancery the amount claimed ‘ to be due, and notified the .complainants of such deposit, the validity of which they refused to recognize. Defendant thereupon filed a petition praying the court to- ' adjudge the decree paid and discharged. And it is held that an order finding that the defendant had substantially performed all of the requirements of the decree, and declaring, it satisfied and discharged of record, cannot be sustained.
    Appeal from Wayne. (Hosmer, J.)
    Submitted on briefs-October 26, 1894.
    Decided December 7, 1894.
    Petition by defendant Louis H. Kean to adjudge a-decree paid and discharged. Complainants appeal.
    Decree-modified.
    The facts are stated in the opinion.

      Jay Fuller, for complainants.-

      Hoyt Post, for defendant Kean.
   Grant, J.

On August 28, 1893, the complainants obtained a decree against the defendants, by which it was ■decreed that there was due from the defendant Louis H. Kean the sum of $446.50, with interest at 6 per cent, per ■annum from June 18, 1890, on a contract for the sale of lands described in the bill of complaint. It was also ■decreed that a deed made by complainants to said Kean was delivered without authority from them, and was void; that the above-mentioned amount, with interest thereon .and costs, be paid to complainants within six months from the date of the decree; that the above-mentioned deed ¡should be set aside, and declared null and void, unless said Kean should pay to the complainants, or to their solicitor, within said six months, the amount as above stated; that the defendant Straker was indebted to complainants in the ■sum of $100; that he pay the same, and that complainants have execution therefor. These are all of the provisions of the decree involved in this proceeding. The deiendant Kean did not pay or tender to the complainants the amount of the decree, although the decree provided for the payment thereof to their solicitor, and the complainants gave him written authority to receive it, which was .shown to said Kean by the solicitor, and payment demanded, which was refused. On the last day provided for the payment, Kean deposited with the register of the court the sum then claimed to be the amount covered by the •decree. It was not sufficient by a small amount, which he ■afterwards deposited with the register. He then notified the complainants of this deposit. They refused to recognize such deposit as valid, or to look to the register for the payment of the money, claiming that it was not authorized by the decree, and that the time for payment had expired. Kean thereupon filed a petition praying the court to adjudge the former decree paid and discharged. The court below found that Kean had substantially performed all the -requirements of the decree, and entered an order declaring -that it was satisfied and discharged of record.

This decree cannot be sustained. The law does not ; authorize the payment to the register of the amount due ■on a chancery decree. The court may make such an •order, but, until so ordered, the complainant is not bound ■by such act on the part of the defendant. He may -entirely ignore it. A party may object that his money be .intrusted to an officer of the court, and has a right to be ■heard before such order is made. The defendant might ■as well have deposited it with the judge or any other member of the court, and then ask to have his decree «declared paid and satisfied. It was expressly decreed that ’the defendant should pay this amount directly to the complainants or their solicitor. Tender of the exact amount to one of them was absolutely' essential to comply with the decree to entitle him to its discharge.

It may well be questioned whether the defendant Kean is «entitled to any relief at all; but, inasmuch as this involves .a forfeiture, which equity as well as law abhors, and exact justice can still be done, the decree will be modified, and .a decree entered in this Court directing the defendant Kean to pay the amount of the decree, with interest and «costs, within 30 days. The complainants will also recover sthe costs of this proceeding in the court below and in this «Court.

The other Justices concurred.


text:
    Daniel P. McMullen et al. v. Rollin H. Person, Circuit Judge of Ingham County.

      Board of supervisors — County bonds — Erection of court-house— Suit to enjoin — Jurisdiction.
    1. How. Stat. § 483, subd. 8, which provides that the several boards of supervisors shall have power to provide for the payment of any loan made by them by a tax upon the county, which shall in all cases be within 15 years from the date of such loan, limits the issue of all county bonds to 15 years.
    2. A board of supervisors adopted a resolution authorizing the borrowing of $35,000 upon the credit of the county, for the purpose of erecting a court-house, and the issuance of the bonds of the county for that sum, payable in ten installments, within 30 years of the date of their issue, the first installment to be made payable 10 years frbm said date. The loan was adopted by the electors, and the board of supervisors passed a resolution authorizing the issuance of the bonds, to be payable in 15 years from the date of issue. And it is held that the voters were clearly given to understand that the entire loan would not be payable in 15 years, but would be extended over a period of 30 years; that no such loan is authorized by law, and it was therefore void; but that, if the resolution were valid, the board disregarded the instructions- of the electors, by making the entire amount payable at one time, and that for this reason the proposed issue of bonds is void.
    3. How. Stat. § 6612, which provides that when it may be necessary to file a bill or information, or to commence any proceedings in chancery, on the part of or in behalf of the people of the State, the same may, at the election of the Attorney General, be commenced in the circuit court for the county of Ingham, in the equity side thereof, and said court shall have complete jurisdiction and full power and authority in the premises, authorizes the filing of a bill by the Attorney General in said court, upon the relation of citizens and taxpayers of another county, to enjoin the issuance by the board •of supervisors, without legal authority, of bonds to be used in the erection of a court-house.

      Mandamus.'

    Argued October 30, 1894.
    Denied December 7, 1894.

      Eelators applied for mandamus to compel respondent to* dissolve an injunction restraining the issue of certain, bonds. The facts are stated in the opinion.

      M. V. & R. 'A. Montgomery, for relators.
    ' A. A. Ellis, Attorney General (MoDonell & Hall and’ Humphrey & Grant, of counsel ), for respondent.
   Grant, J.

The board of supervisors of the county of Cheboygan, desiring to submit to the'electors the question of the erection of a court-house, and the issue of bonds-' to obtain the necessary funds therefor, passed the following resolution by the requisite two-thirds vote:

“Resolved, that the board of supervisors of Cheboygan* county be authorized to borrow $35,000 upon the faith, and credit of the county of Cheboygan, and to issue the-bonds of said county, to be payable in 10 installments, within 30 years of the date of their issue, first installment-to be made payable 10 years from date of issue, and ta-bear interest at not exceeding (6) six per cent, per annum, to be used for the purpose of building and - erecting a. court-house in the county of Cheboygan.”

The resolution further provided for the submission to-the voters of printed ballots, on each of which were to be printed the words “For the Loan” and “Against the-Loan,-” with the appropriate square before each, in which the voter was to make a cross. The loan was adopted by a large majority. The board, after the canvass of the votes and the declaration of the result, adopted a resolution reciting the facts, and authorizing the issue of $35,-000 of bonds, payable in 15 years from the date of issue, at 5 per cent, per annum. The Attorney General, upon the; relation of several citizens and tax-payers, filed a bill ini chancery in the circuit court for the county of Ingham, praying for a perpetual injunction against the board of supervisors and others, to enjoin the issue of. the bonds, and the purchase of a court-house site which the board had voted to purchase. A preliminary injunction was issued. The defendants (the relators here) moved to dissolve the injunction. The court dissolved it as to the purchase of the site, but retained it as to the issue of the bonds.

Two questions are raised:

1. Is the issue of the bonds authorized by the resolution and the action of the electors?
2. Has the court of chancery in Ingham county jurisdiction?

1. Section 483, How. Stat., defines and limits the powers of the board of supervisors in financial matters. They cannot exceed the authority there expressly given over the -erection of county buildings and the loaning of money. They may fix and determine the site of any county building. Under clause 6, they may cause any such building to be erected, and prescribe the time and manner of erecting the same. By clause 7, they can borrow no greater sum than $1,000 for the purpose of constructing any public building, unless authorized by a majority of the electors of said county. Clause 8 authorizes them—

“ To provide for the payment of any loan made by them by tax upon such county, which shall in all cases -be within 15 years from the date of such loan.”

The learned counsel for relators doubt whether subdivision 8 applies to an issue of bonds. We think, however, that the statute is susceptible of but one construction, viz., that it limits the issue of all bonds to 15 years.

By the resolution, no bonds could be made payable till the expiration of 10.years. It is argued that the 30-year limit provided in the resolution is of no consequence, and that the board might make the amount payable in semiannual installments, so as to bring it within the limit of 15 years. We cannot assent to this construction. The proposition upon which the electors voted clearly was that the bonds should be made payable in installments extending over a period of 10 to 30 years. If the argument for relators be sound, then the board might make the entire amount payable in 10 monthly installments. The voters were clearly given to understand "that the entire loan would not be payable in 15 years, but would be extended over a period of 30 years. No such loan is authorized by law, and it was therefore void. The intent of this law clearly is to prevent the imposition of burdens by taxation extending far into the future, upon those who could have no voice in imposing them.

But, if the resolution were valid, the board disregarded the instruction of the electors, by making the entire amount payable at one time. Many electors might not vote for the imposition of a tax of $35,000 in 15 years, who would vote to pay in installments extending over a period of 30 years. It must be held, therefore, that the proposed issue of the bonds is void because it is not such as the electors authorized.

2. This bill was filed under the supposed authority conferred by section 6612, How. Stat., which reads as follows:

“ When it may be necessary to file a bill or information, or to commence any proceedings in chancery, on the part or in behalf of the State, the same may, at the election of „the Attorney General, be commenced in the circuit court for the county of Ingham, in the equity side thereof, .and said court shall have complete jurisdiction and full power and authority in the premises."

The authority of the Attorney General to institute proceedings of this character has been repeatedly sustained. Attorney General v. City of Detroit, 55 Mich. 181; Attorney General v. Board of Auditors, 73 Id. 53; Attorney General v. City of Detroit, 71 Id. 92; Attorney General v. City of Detroit, 26 Id. 263. The power of the Legislature to provide that such suits may be instituted in the county of Ingham, where the office of the law department of the-State is located, is beyond question.

3. The circuit judge dissolved the injunction in so far as it restrained the purchase of a site for the court-house. That question is therefore not before us for determination.

The writ will be denied, without costs.

McGrath, C. J., Long and Hooker, JJ., concurred with Grant, J. Montgomery, J., concurred in the result.


author: Long, J.

text:
    In the Matter of the Estate of Catherine Schilling, Deceased. Della Moore v. Henry Schindehette, Executor, etc., et al.

      Will — Estates in land — Restraint upon alienation.

    A mother devised to four of her children, each one-fifth of her estate, and to the child or children of a fifth child the remainder of the estate. The will then provided that none of the-real estate should be sold or divided between said deviseesbefore the youngest child should arrive at full age, and that, in case the fifth child should die leaving no child or children, the remainder of the estate should be given to the four devisees, share and share alike. The fifth child had one child when the will was executed and at the time of the death of the testatrix. Two daughters were thereafter born to her, one of whom, as also the child first mentioned, died before theib mother. And it is held that, as to the real estate devised to the four children in fee, the proviso restricting its alienation or division before the youngest child should attain full age is void; nor can it now be upheld as to the remaining one-fifth, which vested in the surviving grandchild at the death of her-mother.

      Certiorari to Wayne. (Donovan, J.)
    Submitted on. briefs October 31, 1894.
    Decided December 7, 1894.

      Defendants bring certiorari to review an order of the circuit court affirming an order of distribution made in the probate court.
    Affirmed.
    The facts are stated in the opinion.

      Edwin F. Gonely and Orla B. Taylor, for appellants.

      A. G. Pitts and Julian G. Dickinson, for . claimant •(Della Moore).
   Long, J.

Catherine Schilling died testate September 19, 1883, leaving five children her surviving, to wit, Caroline Friederika, wife of Thomas Moore; Heinrich M., aged 18 years; George L., aged 13; Herman M., aged 11; and Maria W., aged 6 years. The will was admitted to probate October 23, 1883. The provisions of the will necessary to a discussion of this case are as follows:

“First. After the payment of all my debts and debts of my funeral and other expenses, I give and bequeath and devise my estate as follows: To my four children Heinrich Martin Schilling, George Ludwig Schilling, Herman Martin Schilling, and Maria Wilhelmina Schilling, each one-fifth (1-5) part, and to the child or children of my daughter Caroline Friederika, formerly Schilling, and at present wife of Thomas Moore, of Detroit, Michigan, one-fifth (1-5) part, of all my real and personal estate, goods, chattels, moneys on hand, in bank or otherwise, bills re•ceivable, and all other articles of every name and nature.
“Second. Provided always, that none of my said real estate shall be sold or divided between my said heirs before my youngest child is at the age of twenty-one (21) years.
“Third. And it is hereby expressly provided that in case my daughter Caroline Friederika, wife of Thomas Moore, should die without leaving any child or children, then their fifth part shall be given to my first four-mentioned children, share and share alike.”

At the time of the death of the testatrix, her daughter Caroline Friederika Moore had one child, Grace by name. September 20, 1884, another daughter was born, — the present claimant, Della Moore, — and in November, 1886, Grace died. In 1887, another daughter, Minnie by name, was born to Caroline Friederika Moore, but she died in the fall of that year, and shortly after her death the mother-died. Thus the only child living at her death was Della. The bulk of Mrs. Schilling’s property was in real estate, and it so remained until January 12, 1891, when the greater-portion of it was condemned by the city for the purpose of opening a street. Thereby a fund of $4,475 was created,, which by order of this Court was turned over to the executor, and is now in his hands. It is agreed between counsel that the fund thus created shall be treated as real estate, and is subject to the law relating thereto. Upon, the settlement of the estate the probate court made an order of distribution of the residue after payment of debts, etc., giving to Della Moore one-fifth part. The executor and the other devisees- appealed. This order of distribution was affirmed in the circuit. An appeal is taken from that, order of affirmance.

Counsel for claimant, Della Moore, contend:

1. That upon the death of Caroline Friederika Moore-the claimant, Della, became absolutely entitled to a one-fifth interest in said estate.
2. That the second paragraph of the will, which provides that no distribution of the estate shall be made until the youngest child becomes of age, is invalid, and therefore the claimant .is entitled to immediate possession of her share.

The probate and circuit courts must have arrived at this-conclusion, as an order of distribution was made, though, the youngest child of the testatrix has not yet attained her majority.

On the other hand, it is contended by counsel for appellants that the estate granted to the claimant is a vested future estate, without the intervention of a precedent' estate, subject to be divested in favor of the children of the testatrix upon the happening of a contingency subsequent, to wit, the extinction of the class now consisting of the claimant, Della Moore, before the period of distribution; and counsel argue that it is the contingent interest of the children of the testatrix which counsel for claimant leave out of sight; that it is this interest which, in this case, prevents the claimant from taking a fee-simple; that the fee is not held in abeyance, but is vested; that counsel for claimant make no distinction between an estate defeasible upon condition subsequent and a fee-simple; that the fee passes in the one instance as well as in the other; that the claimant has a fee interest, but not a fee-simple absolute interest. Claim is therefore made that such construction should be given the will as to protect the contingent remainder over to the children of the testatrix* and hence no distribution should be made until the arrival at age of the youngest child of the testatrix, as that is the, period fixed- by the will for distribution.

We cannot assent to this proposition. By the first paragraph of the will the four children Heinrich Martin*. George Ludwig, Herman Martin, and Maria Wilhelmina were each given one-fifth. This is a devise to each of' them of one-fifth of the estate in fee-simple absolute.. The 'Other fifth is given by the same paragraph to the-child or children of Caroline. The child or children of' Caroline take this one-fifth subject to the conditions of' the third paragraph. But by this third paragraph, if Caroline should die without leaving any child or children,, the four children of the testatrix first named were- to. take this other fifth in fee; if, however, Caroline left child or children her surviving, such child or children should take,! this fifth in fee. Caroline did leave a child her surviving, •the claimant in this case.

In giving construction to the will, we must, if legal, •carry out the intent of the testatrix. This one-fifth is the only part in controversy. When the testatrix died, ■Caroline was living, and had one child, Grace, who took •this one-fifth part in fee, conditioned, however, to let in •after-born children of Caroline, who would take an equal .share with her. Grace died, Della was born, and Minnie was born and died, leaving Della the only representative •of this class. Della then held the estate in fee, subject to the contingency of being opened to let in other children born to Caroline to share with her, and the further contingency of surviving her mother, Caroline. These are the ■only contingencies provided for in. the will. It may then be said, that at the death of the testatrix this one-fifth part vested in fee in Grace, subject to the contingencies mentioned; and that Della, who is the representative and survivor of this class, and took this one-fifth interest in fee upon these contingencies, now. holds this fifth part in fee-simple absolute by the death of her mother, for by the death of Caroline leaving a child all possibility of the .children of the testatrix taking has become extinct.

Counsel for appellants concede that on the death of the rtestatrix it was a vested future estate in a class subject to -open .and let in new members until the death of Caroline ..Moore, under sections 5523, 5524, How. Stat. But they • claim that it was subject to be wholly divested by the .extinction .of the class before the period of distribution, rin which .case there would be a remainder over to the i children of the testatrix. The period of distribution, however, is not fixed by the third paragraph of the will, and the time when this fifth part was to vest absolutely in fee fin the .children .of Caroline is not dependent upon the •time of the distribution fixed by the second paragraph of the will, but is fixed by the time when Caroline should -die, leaving child or children. .

The contention that the second paragraph is void has great force. As to the four-fifths of the-estate which was vested in the first-named children in fee, it is void; for one of the essential features of an estate in fee is the right to convey, and when a testator attempts to attach a restriction on such right to convey such restraint is void .as repugnant to the nature of the estate. Mandlebaum v. McDonell, 29 Mich. 78. At the death of Caroline Moore, her daughter Della took the fifth part in fee, as no contingency can now arise by which it could be divested; and, so far as the children of the testatrix are concerned, they have no interest in it whatever. There is no provision in the will as to what disposition is to' be made of the income from the estate. Whatever income there may be from this one-fifth, since it vested in the claimant at the death of her mother in 1887, she would be entitled to. The second clause of the will being void as to the four-fifths given to the testatrix’s children, it can hardly be said that it can be upheld as to the one-fifth now resting in claimant. The intent of the testatrix was to keep the estate intact until the arrival at legal age of the child Maria Wilhelmina, then aged six year's. It has failed as to four-fifths of the estate because of the restraint upon alienation. It cannot be said that the testatrix intended to tie up this one-fifth and not the whole. We think the court. below very properly ordered distribution to ■ the • claimant as well as to the others.

The judgment must be affirmed.

The other Justices concurred.

       Grace was bom September 18, 1882, and the will was executed June 4, 1888.

       See City of Detroit v. Schilling, 93 Mich. 429.


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    Archibald P. McKinnon and Thomas W. Burrell v. Samuel G. M. Gates.

      Practice in circuit court — Evidence—Factors and brokers — Action for commission.

    1. Immaterial or irrelevant testimony must be of such a character-as naturally to prejudice the jury against the party objecting to its admission; otherwise, the judgment will not be reversed for its admission.
    2. Where an objection to incompetent testimony. is overruled, a failure to object to similar testimony afterwards introduced, and the meeting of the same by counter proof, does not waive-the error.
    3. In an action to recover a commission agreed to be paid by the purchaser of logs, papers relating to the situation, amount, character, and quality of the logs, which one of the plaintiffs gave to the defendant during the negotiations, are admissible-as part of the res gestae.

    4. The testimony of the defendant that in his conversation with the plaintiffs he had no idea that they intended to charge for-commission was properly excluded.
    5. Where plaintiffs seek to recover, upon an express contract, a. certain commission agreed to be paid on the purchase of a. quantity of saw-logs, testimony on their part that the commission on the sale of the logs was worth 3 per cent, on the dollar on the amount for which the logs sold is inadmissible; citing McDonald v. Ortman, 98 Mich. 40, 42.

    6. Where a lumber manufacturer receives an option on a quantity of logs from a log and lumber broker, and agrees to pay a certain commission if he purchases the logs, he cannot defend, in an action to recover the agreed commission, upon the ground that he purchased the logs from the owner conditionally, or upon terms different from those contained in the-option, the broker being ignorant of any such change.

      7. A telegram from the owners of logs to a' log broker, to whom they had given an option on the logs, which he had sold to a lumber manufacturer for an agreed commission, stating that the option was extended, is competent evidence, in a suit by the broker to recover the commission, of the extension of the-option.
    Error to Cheboygan. (Pailthorp, J.)
    Argued October 31, 1894.
    Decided December 7,-1894.

      Assumpsit. Defendant brings error.
    Eeversed.
    The facts are stated in the opinion.

      G. L. Collins, for appellant.

      McArthur S Sprague (Oscar Adams, of counsel), for plaintiffs.

       For cases involving thé admissibility of testimony of this character under various circumstances, see Alderton v. Wright, 81 Mich. 294; Wyatt v. Herring, 90 Id. 581; Lewis v. Roulo, 93 Id. 475; Banghart v. Hyde, 94 Id. 49; Swarthout v. Lucas, 101 Id. 609, and cases cited.

   Grant, J.

Plaintiffs recovered a verdict and judgment for $2,329.04, principal and interest, as commission on the-sale of a lot of logs purchased by defendant from McConnell & Tough, of Canada. Plaintiff McKinnon resides in Cheboygan, in this State, has been a lumberman for 18-years, and for the last 6 years'has been principally engaged in dealing in logs and lumber on commission. Burrell is a-lumberman doing business mostly in Canada. The defendant is a manufacturer of lumber in Bay City, Mich. McConnell & Tough had about 9,000,000 feet of logs lying-in the Spanish river and one of its tributaries in Canada. Burrell, learning that the logs were for sale, made a partial examination, and on February 18, 1891, obtained a written option in the name of the plaintiffs for their purchase. The price was $7.50 per thousand feet. Plaintiffs were to have 30 days within which to conclude the purchase, two-thirds to be paid in cash upon the completion of the contract, and the balance when the logs were scaled at the mouth of the river. A contract had been let by McConnell & Tough to drive the logs, for which plaintiffs agreed to pay. February 19, 1891, Burrell wrote McKinnon, inclosing the option.

Plaintiffs declared upon an express contract for 3 per cent, commission with the defendant if he purchased the logs. Their evidence supported the claim. Defendant ■denied any contract whatever with the plaintiffs, and gave ■evidence to support his claim. Defendant and the Michigan Pipe Company purchased the logs, and the purchase was evidenced by a written agreement. This agreement •differed from the terms of the option in three particulars:

1. The price per thousand was $7.90, instead of $7.50.
2. McConnell & Tough agreed to drive the logs, and deliver them at the mouth of the river.
3. The contract provided that if the vendors should not be able to deliver the logs, or any portion thereof, during the spring or summer of 1891, owing to their being stuck for want of water, lost by tempest, or any other unavoidable accident, neither party should be compelled to carry out the agreement, and the vendees should .be liable to pay for only such logs as were actually delivered.

The increased price was in consequence of the delivery :at the mouth of the river, the driving being at the expense of the sellers rather than the buyers, as provided in the option. Only 675,000 feet were delivered, and the vendors and vendees settled their difference as to those undelivered, the terms of which settlement do not appear.

According to the plaintiffs’ evidence, they gave their •option to the defendant, who went to Canada and made the purchase. Defendant informed them that he had purchased, and they were not notified, and had no knowledge until after this suit was commenced, that the terms of the contract differed from those of the option. The issues •of fact were settled by the jury in favor of the plaintiffs. The errors alleged arise upon the admission of testimony .and the charge of the court.

1. The first error complained of is the admission of the letter of February 19, 1891, from Burrell to McKinnon,, and of an envelope and certain .papers which McKinnon testified that he gave to defendant during the negotiations. These papers related to the situation, the amount, character, and quality of the logs, and included two letters; written by McConnell & Tough to McKinnon, one saying r

“ Have no estimate on quantity; not customary here. Less than 1,000 pieces Norway, balance white pine. Can. mail specification if desired."

The other:

“Logs good. Your Mr. Burrell has thoroughly investigated our logs. We prefer purchasers to act on their own opinions. Little over seven to the thousand."

The letter of February 19 is of no consequence, except that it is claimed by the plaintiffs that it was introduced for the purpose of fixing the dafe. It contained nothing-affecting the issue before the jury. It might with propriety have been ruled out as immaterial, but it is impossible to hold that its contents could have affected the jury to the prejudice of defendant. ' Immaterial or irrelevant, testimony must be of such a character as naturally to prejudice the jury against the party objecting to its admission; otherwise, the judgment will not be reversed for its-admission. The other papers were properly introduced as part of the res gestae. They related to the subject-matter in controversy, and contained information which might be-, of value to the proposed purchaser.

2. The court refused to permit the defendant to testify that in his conversation -with the plaintiffs he had no idea, that they intended to charge for commission. His secret, understanding was incompetent. The intent and agreement, of the parties were to be determined from their conversation and their acts. Neither party was at liberty to testify to his understanding.

3. Mr. McKinnon was permitted to testify that “ thee ■commission on the sale of these logs was worth 3 per cent, ■on the dollar on the amount for which the property sold." ■On cross-examination of this same witness the court ruled ■out testimony to show the time occupied by the plaintiffs in the negotiations with defendant. If the former testimony were competent, the latter would be equally so; nor would it be an answer to the latter to say that the question was not broad enough to cover plaintiffs'negotiations with McConnell & Tough, and their time and expenses incurred in examining the timber, ff; was the first step in the inquiry, and was admissible upon the theory of the plaintiffs that they could show the value of their services. At the time,the testimony was offered, the defendant had raised no question of the reasonableness of the charge. Plaintiffs' suit was based upon an express contract set out .in the declaration, and not upon a count for quantum ■meruit. This point is expressly ruled by McDonald v. Ortman, 98 Mich. 40, 42, where the authorities in this ■State are cited. The testimony should have been excluded. It is, however, insisted that other evidence of this character was afterwards introduced without objection; that the defendant introduced evidence to- controvert it; and that this cured the error. This is not the law. One ruling ■upon the point by the court was sufficient, and the defendant had the right to rest upon such ruling, and to meet the evidence by counter proof without waiving the error.

4. The defendant requested the court to instruct the jury that, if he did not buy the logs under the option, he was not liable for the commission charges, and that at most plaintiffs could recover a commission only on the logs .actually purchased and delivered. These requests were refused, and the court instructed the jury that it made no ■difference whether the terms of the purchase were in accordance with the terms of the option, unless the ■defendant, because of some fault of either the plaintiffs •or tbe owners of the logs, was deprived of the right of ^purchase in accordance with the exact terms of the option. We think the refusal and the instruction were correct. If the defendant received the option from the plaintiffs, and agreed to pay a commission if he purchased the logs, he cannot defend upon the ground that he purchased them •conditionally, or upon terms different from those contained in the option. If McConnell & Tough refused to sell to defendant under the terms of the option, it was the legal •duty of defendant to notify plaintiffs of that fact, and thus give them the opportunity to seek other purchasers •or to abandon the "option. No other course can be justified by reason and fair dealing.

o. On March 19, 1891, McConnell & Tough telegraphed McKinnon, saying:

“Gates still negotiating. Extended time to Monday,— ■24 th.”

The admission of this telegram is alleged as error because ■ defendant was not shown to have had any knowledge of it, and that it could not in any manner affect him. The testimony was competent to show the extension of the •option. In view of a new trial, it may be well to remark that a different question would have been presented if the •option had expired before the purchase, without any fault -of the defendant, and he had purchased in good faith, .relying upon its expiration.

Judgment reversed, with costs, and a new trial granted.

The other Justices concurred.


author: Montgomery, J.

text:
    Louise M. Tunnicliffe, By Her Next Friend, v. The Bay Cities Consolidated Railway Company.

      Married woman — Personal injuries — Damages—Loss of time — Miscarriage — Negligence—Instructions to jury.

    1. In a personal injury case prosecuted by a married woman, the plaintiff was permitted to testify, against objection, that-before receiving the injury complained of she had painted pictures for profit, and was able to earn a certain sum per week, and that by reason of the injury she was rendered unable to do that kind of work. And it is held that the husband is, prima facie, entitled to the earnings of his wife, and that it was error to admit the testimony, and permit a recovery for the impairment of plaintiff’s ability to earn money.
    2. The plaintiff contended that as she was a minor, and prosecuted the suit by her husband as her next friend, he would be estopped by the verdict from bringing suit thereafter to recover for such services, and hence no injury could have been done the defendant. It appeared, however, that, after the objectionable testimony had been given, a question on the same line was put to another witness, which was objected to, and the court said: “ I think the husband is entitled to the wages. I guess there is no use going into that. in this case at all.” And it is held that, after this statement, the defendant’s counsel could not be expected to meet such-proofs as had crept in on the subject; that the subsequent charge of the court to the effect that, if the plaintiff was entitled to recover, she was entitled to the value of her time, etc., was not only erroneous as matter of law, but, given as it was, after said statement by the court, which cut off proofs on ■ the part of the defendant, was based upon a necessarily ex parte showing.
    8. The testimony in a personal injury case brought by a married woman tended to show that one of the results of the injury was a miscarriage. The court instructed the jury that they might, if they found a verdict for the plaintiff, give as a part of her damages what they should find the society, enjoyment, and prospective services of the child were reasonably worth. And it is held that the charge was clearly erroneous; that there was; of course, no proof in the case as to the prospective earnings of the child, even if the mother would he the proper person to recover for such loss; that the loss of the child’s society would not be a proper element of damages; that while the jury are allowed to consider the case with all its facts, and to take into account, for the purpose of compensation, not only the physical pain, but also mental suffering, in determining the award of damages, and while, of necessity, this involves, to some extent, a consideration of the nature of the injury, and cannot exclude from the consideration of the jury the fact that the physical and mental suffering of the mother by reason of such an injury would be more intense than in the 'case of the ordinary fracture of a limb, yet beyond this it would not be competent for the jury to go, and attempt to compensate for the sorrow and grieving.
    •1. In a personal injury case against a street-railway company, the declaration averred that, in the rear platform of the car from which plaintiff was attempting to alight at the time she received the injury complained of, the defendant had negligently placed and permitted to remain an iron bolt, which projected above said platform a specified distance; that while plaintiff was passing out of said car, and onto and over said platform, for the purpose of alighting therefrom; and was stepping from the platform of said car to the steps thereof, said car being stationary, the defendant negligently caused said car to be suddenly started and moved forward, by means whereof plaintiff was thrown down and against said car, and down and upon the platform thereof, and down and upon and against the steps of said car, and her dress skirt or skirts caught on said bolt, and she was held fast to and against said car and platform and steps, and partially upon the ground, and was so held, dragged, and carried along by the motion of said car, and injured, etc. Plaintiff’s testimony was to the effect that she was in the act of stepping off the car when it started, and was thrown backward, and her clothing caught; that she took it for granted that her clothes were caught; that she did not know in what; that she could 'not see, but in her struggle she threw her arm behind her, and, as she did so, her hand came down on something that projected from the platform; that gjhe pulled her skirt, and a bolt came out from the platform. On cross-examination she testified that she should think the bolt had no part in throwing her down, aside from the jerking of -the car. The defendant contended that there was no room under this testimony for the jury to find that plaintiff’s clothing caught on the bolt before she was thrown backward. And it is held that this is too narrow a construction of the testimony; that it appears from the charge of the court that defendant contended before the jury that plaintiff’s story was unreasonable, and that the injury could not have occurred in the manner supposed by her; that the jury had a right to construe the facts, and if, in their judgment, it was more reasonable to suppose that plaintiff’s clothing caught upon the holt without her knowledge before tíre car started, and threw her to the ground, it cannot be said that the circumstances of the case did not furnish a justification for that inference.
    Error to Bay. (Maxwell, J.)
    Argued October 11, 1894.
    Decided December 7, 1894.
    Case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      T. A. E. é J. G. Weadock, for appellant.

      James Van Kleeck, for plaintiff.
   Montgomery, J.

Plaintiff is a married woman and a minor. She sues by her next friend to recover for' personal injuries received while attempting to alight from a car'of the defendant. Plaintiff recovered, and defendant brings error. The negligence alleged was that—

“While plaintiff, with the consent and permission of said defendant, with due care and diligence on her part, was passing out of said car, and onto and over the rear platform of the same, for the purpose of alighting therefrom and leaving said car, and was stepping from the platform of said car to the steps thereof, said car being then and there stationary, said defendant carelessly and negligently caused said car, from which she was then departing and stepping off, to be violently and suddenly started, jerked, and moved forward,- by means whereof this plaintiff, while in the exercise of proper care and diligence on her part, was thrown down and against said car, and down and upon the platform thereof, and down and upon and against the steps of said car, and her dress skirt or skirts caught on said bolt, so negligently put, placed, and permitted to be and remain in said platform • by said defendant as aforesaid, and she was. held fast to and against said car, and to and against' the platform of said car, and to and against the steps thereof, and partially upon the ground, and was so held, dragged, and carried along by the motion of said car," etc.

The declaration had previously alleged that defendant had carelessly and negligently placed, and permitted to be and remain, an iron bolt, extending and projecting above the rear platform, to wit, five inches."

1. In the course of the charge to the jury, the circuit judge asked for suggestions from counsel. Defendant’s counsel thereupon asked the court to charge that the plaintiff could not recover under any circumstances by reason of the location of the bolt or pedal, and called attention to a portion of the charge of the court as follows: I do not understand that it is seriously contended by the defendant if the accident happened because of this bolt remaining in an improper place during the journey, to endanger women getting off the car, but what the company is liable," — and asked that it be modified. The plaintiff’s testimony was to the effect that she was in the act of stepping off the car when it started, and that she was thrown backward, and her clothing caught. She further testified:

I took it for granted that my clothes were caught; I didn’t know in what. I could not see, but in my struggle I threw my arm behind me, and, as I did so, my hand came down on something that projected from the platform, and I pulled my skirt, and .a bolt came out from the platform.’’

On cross-examination she testified:

“I should think the bolt had ho part in throwing me down, aside from the jerking of the car."

It is claimed by the defendant that there was no room under this testimony for the jury to find that plaintiff’s clothing was caught before she was thrown backward. But we think this construction of the testimony is too narrow. It would appear from the charge of the court that defendant' had contended before the jury that plaintiff’s story was unreasonable, and that the injury could not have occurred in the manner supposed by plaintiff. The jury had a right to construe the facts, and if, in their judgment, it was .more reasonable to suppose that her clothing had been caught upon the bolt without her knowledge before the car started, and threw her to the ground, we cannot say that the circumstances of the case did not furnish a justification for that inference.

’2. On the trial the plaintiff was permitted, against the defendant’s objection, to testify that before the injury she had painted for profit, and was able to .earn $5 to $10 and $15 per week, and that by the injury she was rendered unable to do this kind of work. The court charged the jury upon the subject of damages as follows:

She is entitled to recover, in case you so determine from the evidence, — she is entitled, first, to the value of her time. Whatever it was worth a month or a week, you will give it to her, if you come to that conclusion, as I said before.”

It was error to admit this testimony, and permit a recovery for the impairment of the plaintiff’s ability to earn money. The husband is, prima facie, entitled to the earnings of the wife.. Hicks v. McLachlan, 94 Mich. 282.

But it is contended in the present case that, as the husband .was a party to the proceedings as next friend to the plaintiff, he would be estopped by the verdict from bringing suit hereafter to recover these damages, and hence that no injury could have been done defendant; and Baker v. Railroad Co., 91 Mich. 298, is cited as sus- ’ taining this contention. Tlie case cited fully recognizes that the objection as made in a suit prosecuted by the next friend is good; but it was held in that case that inasmuch as such testimony was admitted, and as plaintiff actually received payment upon the judgment in his capacity as next friend, he ought not to be permitted to recover it again- in his individual capacity. In the present case, the defendant, upon making the objection, had no reason to apprehend that the plaintiff expected to claim a recovery for any damages not within the issue; and particularly was this true under the circumstances of this case, as it appears conclusively that the defendant .could not have understood that it was necessary to offer any proof to meet the plaintiff’s testimony, for, after the plaintiff’s testimony, above quoted, had been given, a question was put to another witness on the same line, which was objected to, and the court said:

ciI think the husband is entitled to the wages. I guess there is no use going into that in this case at all.”

After this, certainly, the defendant’s counsel could not be expected to meet such proofs as had crept in on- this subject; and the subsequent charge, above quoted, was not only erroneous as matter of law, but, given as it was, after the previous intimation which cut off proofs on the part •of the defendant, was based upon a necessarily etc parte .showing.

3. The testimony tended to show that one of the results •of the injury to plaintiff was a miscarriage. The court ■charged the jury as follows:

As to this child, if the plaintiff lost a child by reason •of the liability of the defendant in- this case, you may give •damage for it. The society, enjoyment, and prospective .services of the child is a recognized element in that regard, and you may give what it is reasonably worth.”

This charge was clearly erroneous. There was, of course, no proof in the case as to the prospective earnings of the child, even if the mother would be the proper person to recover for such loss. Nor would the loss of the child’s society be a proper element of damages. While the jury are allowed to consider the case with all its facts, and to take into account, for the purpose of compensation, not only the physical pain, but also mental suffering, in determining the award of damages, and while, of necessity, this involves to some extent a consideration of the nature of the injury, and cannot exclude from the consideration of the jury the fact that the physical and mental suffering of the. mother by reason of such an injury would be more intense than in the case of the ordinary fracture of a limb, yet beyond this it would not be competent for the jury to go, and to attempt to compensate for the sorrow and grieving of the mother. As was said in Bovee v. Town of Danville, 53 Vt. 183:

“If the violence done her person resulted in the miscarriage, the miscarriage was a legitimate result of such negligence. Any physical or mental suffering attending the miscarriage is a part of it, and a proper subject of compensation. But the rule goes no further. Any injured feelings following the miscarriage, not part of the pain naturally attending it, are too remote to be considered an element of damage. If the plaintiff lamented the loss of her offspring, such grief involves too much an element of sentiment to be left to the conjecture and caprice of a jury. If, like Bachael, she wept for .her children, and would not be comforted, a question of continuing damage is presented, too delicate to be weighed by any scales, which the law has yét invented.”

The only - case which we have found which is in seeming conflict with this is that of Smith v. Overby, 30 Ga. 241; but the supreme court of that state, in the later case-of Railroad Co. v. Randall, 85 Ga. 297, in treating of a. charge which permitted of a recovery for the pain, suffering, or sorrow resulting from miscarriage, said:

“We would suggest that the word ‘sorrow’ be omitted from the charge of the court on the next trial. It is most too remote to be considered an element of damage, unless it is that sorrow which accompanies the actual injury, and is suffered at the time of the miscarriage. The loss of a child by a miscarriage would affect women so differently that it would be hard for men, sitting as jurors, to estimate it as an element of damage; and we therefore think it would be better to omit in the future any instruction to the jury upon the question of sorrow as an element of damage. Pain and suffering give a wide latitude to juries, and there are very few complaints made of the smallness of the amounts found by juries upon these two elements of damage,” — citing the case of Bovee v. Town of Danville, above cited. See, also, 5 Amer. & Eng. Enc. Law, 42. ,

Numerous other questions are discussed in the briefs of counsel, but we think it unnecessary to consider thein at length. Those relating to the expressions of pain and complaints of present suffering are within the previous rulings of this Court. See Girard v. City of Kalamazoo, 92 Mich. 610; Lucas v. Railway Co., 92 Id. 412, and cases cited. None of the other questions are likely to arise on a new trial.

Eor the errors pointed out, the judgment will be reversed, with costs, and a new trial ordered.

McGrath, O. J., Long and Hooker, JJ., concurred. Grant, J., did not siti


text:
    Stephen F. Derry v. The Board of Education of the City of East Saginaw.

      Schools and school-districts — Contract of - employment — Discharge —Damages.

    A school board contracted with a qualified teacher for a year’s services at a fixed salary, and reserved the right to discharge the teacher at any time whenever the board might desire to terminate the contract, upon one week’s written notice to be given by its committee on teachers and text-books. Proceedings were taken by tbe board with a view to terminating the contract, but the teacher, claiming .that they were invalid and ineffectual, presented himself for work under the contract, and was refused employment, And it is held that in any event such refusal was equivalent to notice under the contract, and entitled the teacher to only one week’s salary thereafter.
    Error to Saginaw. (McKnight, J.)
    Argued November 1, 1894.
    Decided December 7, 1894.

      Assumpsit. Defendant brings error.
    Reversed, and judgment’entered in this Court for the plaintiff for one week’s salary.
    The facts are stated in the opinion.

      Charles S. Smith, for appellant.

      Tarsney & Wicker, for plaintiff.
   Grant, J.

Plaintiff sued to recover for services as school teacher. The defendant pleaded the general issue, with notice that the contract sued upon was canceled and terminated before the time when the said plaintiff’s services were to begin.

Plaintiff was teaching at the time of the execution of the contract, as principal of the ungraded school. At a regular meeting of the board held June 15 it refused to adopt the recommendation of the committee on schools to discontinue the ungraded school, and adopted a resolution appointing plaintiff principal at the same salary as the previous year. June 16 the secretary of the board, on its bphalf, executed a written contract with plaintiff, whereby he agreed “to serve as a teacher in the public schools of the city for the ensuing school year, commencing September 5, for $700.” The contract contained the following clause:

“ Said board reserving to itself the right to change said teacher from one school or grade to another' school or grade, or to discharge said teacher at any time whenever it may desire to terminate this contract, upon one week’s written notice to said teacher by its committee on teachers • and text-books.”

June 29 a special meeting of said board was held to take •action upon the resignation of the superintendent of schools, and to consider such other business as might properly come before the board. At this meeting the action of ■June 15 was reconsidered, and a resolution adopted discontinuing the ungraded school, and also instructing the committee on teachers and school books to give plaintiff the requisite notice that his services were no longer required. ■July 7 the committee wrote plaintiff, notifying him that his contract would terminate July 16. At the time this notice was mailed he was out of town, and did not receive it until in August or the 1st of September. He, however, was informed of the action of the board June 30. At the •opening of the schools in September he presented himself for work under the contract, and was refused employment. He secured "other employment in May following. The ■court directed a verdict for three months’ salary.

The defendant denies the authority of the secretary to make the contract. This objection comes too late, as the plea admitted its execution.

Several objections are made to the validity of the action ■of the board in rescinding the contract. We deem it unnecessary to mention them. The board refused plaintiff employment at the opeting of the school. This was equivalent to notice, and entitled him to recover for only one week’s salary. Fisher v. Monroe, 21 N. Y. Supp. 995; Peverly v. Poole, 19 Abb. N. C. 271; Hartley v. Harman, 3 Perry & D. 567.

Judgment reversed, and entered in this Court for the plaintiff in accordance with this opinion. The defendant"will recover costs.

McGrath, O. J., Long and Montgomery, JJ., concurred. Hooker, J., did not sit.

       See Insurance Co. v. Howell, 101 Mich. 332, 335, and note.


author: McGrath, O. J.

text:
    Adolphus Graves v. The Joint Board of School Inspectors of the Townships of Benton and Grant, Cheboygan County.

      Fractional school-district — Alteration of boundaries — Jurisdiction;.
    The requirement of 3 How. Stat. § 6040, that, whenever the-proper boards of school inspectors shall' contemplate an alteration of the boundaries of a fractional district, the clerks of' the several townships interested shall give at least 10 days’ notice of the time and place of the meeting of the inspectors, and the alteration proposed, by posting such notice in. three public places in the townships, one of which shall be in-each of the districts that may be affected by such alteration, is jurisdictional, and proof of posting such notice should be filed with the clerk of the joint board before any action is taken.

      Certiorari to review proceedings to alter the boundaries of a fractional school-district.
    Submitted on briefs October 31, 1894.
    Proceedings quashed December 7, 1894.
    The facts are stated in the opinion.

      Frank Shepherd, for petitioner.
   McGrath, O. J.

This is certiorari to review the action of certain boards of school inspectors of the townships of Benton and Grant in attempting to alter the boundaries of a fractional school-district. The records of the meeting, returned here, do not contain any evidence that proof was-made of the posting of the notice of the meeting; and the-only notice appearing, if any was posted, was signed by the clerk of Benton township only.

.The statute requires that, in case of a proposed alteration of a fractional district, the notice shall be given by the clerk of each interested township, and that it shall be-posted in each of such townships. 3^ How. Stat. § 5040. The statutory requirement is jurisdictional, and proof of posting such notice should be filed with the clerk of the-joint board before any action is taken. Coulter v. School Inspectors, 59 Mich. 391; School-District No. 3 v. School-District No. 1, 63 Id. 51; Fractional School-District v. School Inspectors, 63 Id. 611; Fractional School-District v. Metcalf, 93 Id. 497. It appears by an amended return-that no further proceedings have been taken to carry into-effect the action here complained of.

The proceedings must be quashed and held for naught,, with costs to petitioner.

The other Justices concurred.


text:
    Jerome Hutchinson v. Harvey Hutchinson.

      Bills and notes — Parol evidence — Replevin—Damages.
    1. Where the giving and taking of a promissory note are the-deliberate acts of the parties, with full knowledge of the contents of the instrument, and the note is not tainted with any fraud, parol evidence is inadmissible to change the terms of payment.
    2. In replevin for a span of horses, for the purchase price of which-the defendant has given his promissory note, which is the only written evidence of the contract, it is competent for the plaintiff to show that the note was not received in payment, and that the title to the horses was to remain in him until the purchase price should be paid.
    ■3. In replevin for a span of horses, the proper measure of the defendant’s damages is the value of the use of the horses during the time he has been deprived of their use.
    Error to Muskegon.' (Dickerman, J.)
    Argued November 1, 1894.
    Decided December 7, 1894.
    Replevin. Plaintiff brings error.
    Reversed.
    Tbe facts .are stated in tbe opinion.

      Brown é Lovelace, for appellant.

      Jerome E. Turner, for defendant.
   Grant, J.

In April, 1890, plaintiff leased bis farm to Ris son, and at tbe same time sold bim a span of borses, wbicb are the subject of controversy in this suit. Tbe price was $300, for wbicb defendant gave bis promissory note dated April 1, 1890, due April 1, 1893, wbicb was tbe only written evidence of tbe contract. Plaintiff ■claimed, and bis evidence sustained bis claim, that tbe title was to rest in him until tbe purchase price was paid; that the note was given and received as a mere memorandum; that defendant was to pay $100 per year, should treat the team well, and use it only for farm purposes; that be bad made no payments, and bad maltreated tbe team. Tbe verdict was for tbe defendant for tbe return of tbe property and $350 damages.

1. The court instructed tbe jury that parol evidence was not admissible to change tbe terms of the payment. Tbe charge was correct. Tbe note was not tainted with any fraud on tbe part of defendant. Tbe giving and taking were deliberate acts of tbe parties, with full knowledge of the contents of the instrument. Its legal effect was-therefore binding upon both, and fixed the time of payment. The wisdom of the rule conspicuously appears in this case, where the parties radically disagree upon their conversations at and prior to the date of the note. In such cases the unambiguous writing must control.

2. It was competent to show'that the note was not received in payment, and that the title should remain in the plaintiff for the purposes claimed by him. Upon this point the case was submitted to the jury under proper instructions. A serious error, however, was - committed in admitting evidence of the defendant’s damages, sustained by him between the time of the seizure under the writ and the trial. He testified under objection and exception that he was damaged to the amount of $800. The proper measure of damages was the value of the use of the team during the time the defendant was deprived of its use.

3. Defendant’s counsel went outside of the record and of the limit of legitimate argument in commenting to the-jury upon the wealth of the plaintiff and facts which did not appear in evidence.

Other errors are alleged, but, inasmuch as they are not-likely to arise upon a new trial, they need not be mentioned.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Long, J.-

text:
    Samuel W. Webber v. William Alderman, Impleaded with George W. French.

      Bills and notes — Release of surety — Partnership.
    The individual promise of one member of a banking firm to release an accommodation indorser from liability on a note held by the firm, and to pay the note from means in his hands belonging to the maker of the note, cannot be construed as the promise of the firm, and will not exonerate the indorser from liability on the note.
    • Error to Ionia. (Smith, J.)
    Argued November 1, 1894.
    Decided December 7, 1894.

      Assumpsit. Defendant Alderman brings error.
    Affirmed.
    The facts are stated in the opinion.

      B. A. Hawley, for appellant.

      Ellis & Miller, for plaintiff.
   Long, J.-

This is an action of assumpsit on a promissory note for $150, given by defendant French to Webber, Jnst & Co., and indorsed by défendant Alderman for accommodation. Plaintiff got the note by indorsement after maturity. Defendant Alderman, it is conceded, received none of the proceeds of the note. Webber, Jnst & Co. were a copartnership doing a banking business, the firm being composed of Samuel W. Webber, Josiah E. Just, Charles W. French, and a Mr. Fox. After the note matured, defendant Alderman called upon Charles W. French, who was a son of George W. French, the maker of the note,' at the bank, and claims that it was there arranged between them that he should be released from the note. He was asked to give the conversation that took place at that time, and said:

“I stepped into the bank, and said to Charles French, in regard to his father’s note that I was ony — the one that was about due; spoke to him about it, — and he says: ‘You •needn’t pay any further attention to that note. Father has put means in my hands so I can take care of that note. I will release you entirely from the note, and see .to it.’ I relied upon that, that his father had put means .in his hands by which he could take care of the note, and he would pay the note. I said nothing about paying the not'e after that.”

He was asked:

“You understood that the means were in Charles French’s hands, and not in the hands of the firm ?
“A. Yes, sir; Charles French’s hands.”

It was also claimed by defendant- Alderman that at that time the maker had property in his hands sufficient to pay the note, but had since become insolvent. Under this •evidence the court below directed a verdict in favor of •plaintiff against defendant for the amount of the note and •interest. Judgment was entered upon the verdict, and ■defendant Alderman brings error.

# Counsel for defendant seeks to invoke the rule that where the creditor promises to exonerate the surety, or to look solely to the principal for payment, and the surety is .induced by such promise to postpone or relinquish any of the means of indemnity to which he might otherwise have resorted, it will take effect as an equitable estoppel, and deprive the promisor of the power of retraction. This is .a correct statement of the principle. In Harris v. Brooks, 21 Pick. 195, 197, it was said:

“A parol declaration of the holder to the surety that he would exonerate him, and look to the principal only, is a good defense, on the ground that it lulls the party into security, and prevents him from obtaining his indemnity; and it would, be fraud on the part of the holder •afterwards, contrary to such assurance, to call upon such .surety.”

The same rule was laid down in Rowley v. Jewett, 56 Iowa, 492.

But there is no showing in the present case that the-holders of the note, Webber, Just & Co., ever made any such promise. It was the individual promise of Charles W. French, and from the testimony of Mr. Alderman he looked to Charles W. French personally' to pay and take care of the note. Charles W. French was not pretending to make the promise in -behalf of the owners of the note, and it is evident that Alderman did not so regard it, for1 he was expressly asked if he understood that the means to ■ pay the note were in Charles French's hands, and not in the hands of the firm, and responded, “Yes, sir; Charles French's hands." The promise he relied upon, then, was-the individual promise of Charles W. French that he had means in his hands to pay the note, and would pay it,, and release him (Alderman) upon it. The case is too-plain for argument that this promise cannot be construed as the promise of Webber, Just & Co. to release Mr. Alderman, and the court below very properly directed the-verdict for plaintiff.

The judgment is affirmed.

The other Justices concurred.


author: McGrath, C. J.

text:
    Hannah Hogan v. Patrick Hogan and James Hogan.
    [See 44 Mich. 147.]

      Will — Estates in land — Waste—Firewood—Injunction—Election of remedy.

    By the terms of a will the testator devised to his wife a life estate in certain land upon which he resided, and to two of • his nephews 32 acres of land, subject, however, to its control by the widow until their majority, when it was to be sold, and the proceeds divided equally between them. The widow was-also to have firewood off 5 of the 32 acres. Executors were appointed, but no estate or title-was vested in them as trustees, nor was a power of sale given to them. The widow cut from the 5 acres, and sold, a quantity of ash and elm logs, intending, as she claimed, with the proceeds, to purchase coal for fuel. She and her vendee were enjoined at the suit of the nephews from removing the logs from the land. Pending a hearing of the equity suit, the widow attempted to cut the logs into firewood, whereupon the guardian of one of the-nephews and the other nephew went upon the land and removed the logs, and the widow replevied the same. At the time the logs were cut there were a number of large beach and maple trees upon the 5-acre tract, which were more suitable for firewood than the ones cut. And it is held:
    a — That the provision of the will giving the widow the right to firewood from the 5 acres is inconsistent with an intention to give her greater powers or privileges respecting said fiacres, and must be regarded as indicating the character of the use which she is to enjoy of that portion of the 32 acres, and does not include the right to cut timber into logs, and with the proceeds purchase fuel,'so long at least as there ia an abundance of fuel timber.
    b — That under the rule laid down in Mandleba^vm v. McDonell, 29 Mich. 78, the devise to the nephews must be regarded; as of a present vested remainder in fee; that the cutting of the timber was clearly waste; that the injury was one done to the inheritance; that the property in the logs was in the nephews, and they might .seize it, bring trover for its conversion, or replevy it,

      c — That, by the conduct of the widow in attempting to cut the logs into firewood, a danger to the property was threatened not contemplated when the bill was filed, the main object of which was to prevent further cutting, and the sale of the logs which had been cut; that the statu quo was changed by her own conduct, and, in view of another danger, the complainants had the right to avail themselves of another effective remedy to protect their property.
    Error in Ionia. (Davis, J.)
    Argued November 2, 1894.
    Decided December 7, 1894.
    Eeplevin. Plaintiff brings error.
    Affirmed.
    Tbe facts are stated in the opinion.

      Glute & Glute, for appellent.

      George N. <& M. A. Nichols, for defendants.
   McGrath, C. J.

Plaintiff’s husband died testate, leaving the west half of certain lands on section 22 to plaintiff, during her life, and upon her death to his brother Dennis; the east half of said lands to his brother, Dennis; and certain other land, consisting of 32 acres, to two nephews, providing that such real estate should be sold when the nephews became of age, and the proceeds divided equally between said nephews. The will further provided that the widow was “ to have firewood off 5 acres of the south-east corner” of the 32 acres, and that she “is to have control of these 32 acres until these children [the two nephews] become of age.” Plaintiff cut from the 5 acres named, and sold to one Bennett, a quantity of ash and elm logs. The widow and Bennett were enjoined in a proceeding in equity, on behalf of the nephews, from removing the logs. Pending a final hearing in that proceeding, plaintiff attempted to cut the logs into firewood, and Patrick Hogan* guardian of one of the nephews, and James Hogan, the other nephew, went upon the land and took away the logs. Plaintiff brings replevin.

It is conceded that at the time of the cutting of the logs there were a number of large beach and maple trees upon the 5-acre tract, which were more suitable for firewood than the ones cut, but it is claimed by plaintiff that' her intention was, with the proceeds of the logs, to' buy coal for fuel.

It is insisted by plaintiff that the clause of the will giving the wife control of the' 32 acres during the minority of the nephews imported 'a tenancy without impeachment for waste. The provision of the will giving to plaintiff the right to firewood from the 5 acres is inconsistent with an intention to give to the plaintiff greater powers or privileges respecting the 5 acres. It must be regarded as indicating the character of the use which she is to enjoy of that portion of the 32 acres. The right to cut firewood from woodland must be exercised in the usual manner, and cannot be extended to the use of the more valuable timber for other purposes, and does not include the right to cu^ such timber into logs, and with the proceeds buy fuel, so long at least as there is an abundance of fuel timber. Phillips v. Allen, 7 Allen, 115; Padelford v. Padelford, 7 Pick. 152; 1 Tavl. Landl. & Ten. § 352.

The will gives the 32 acres to the nephews, and provides that the same shall be sold when they become of age, and the money divided equally between them. Executors are appointed, but no estate or title is vested in them as trustees, nor is a power of sale given to them. Under the rule laid down in Mandlebaum v. McDonell, 29 Mich. 78, the devise to the nephews must be regarded as of a present vested remainder in fee. The cutting of the timber was clearly waste. The injury was one done to the inheritance. The property in the logs was in the defendants, and they might seize it, bring trover for its conversion, or replevy it. 1 Washb. Seal Prop. *119; Howard v. Patrick, 38 Mich. 795, 803.

The only other question raised -by the assignments is as to the effect of the pendency of the chancery cause upon defendants’ rights. The bill filed prayed that defendant therein might be restrained from cutting, selling, or disposing of timber, except for firewood, and that defendant might be required to account for all money received from the sale of logs, and that the logs then on the land might be sold under the direction of the court, and the proceeds decreed to belong to complainants. The bill did not pray for an accounting as to .the logs not disposed of. The main object of the bill was an injunction to prevent further cutting, and the sale of the logs which had been cut. Whatever may have been the plaintiff’s purpose, if she had succeeded the effect would have been to defeat a sale of the logs under, the direction of the court. The theory of the bill was that complainants. therein owned the logs. By her conduct, 'a danger to the property not contemplated when the bill was filed was threatened. The statu quo was changed by plaintiff’s own conduct, and, in view of another danger, defendants had the right to avail themselves of another' effective remedy to protect their propsrty.

The judgment is affirmed.

The other Justices concurred.

       For a copy of the will, see Hogan v. Hogan, 44 Mich. 148.