text:
    HAMMOND v. PLACE.
    1. Municipal Corporations — Bonds—Remedies—Estoppel.
    An objection that the owner of municipal bonds has no right to put his claim thereon into judgment, but is limited to mandamus to compel an assessment to pay them as they become due, cannot be urged for the first time in a proceeding to enforce the judgment.
    2. Same — Rights oe Action.
    But the objection is without force; since the right of the owner to sue upon these bonds exists, notwithstanding an amount sufficient to pay them has been included in prior assessments, and has failed of collection or been misappropriated.
    3. Same — Contracts—Poverty as Defense.
    Poverty is no more a defense to the enforcement of a just demand against a municipal corporation than it is where the defendant is a private corporation or an individual.
    4. Same — Taxation.
    The validity of a contract of a municipal corporation necessarily involves the right to raise by taxation the amount for which it thereby becomes obligated.
    5. Same — Limit of Taxing Power — Judgments—Mandamus.
    Under 3 How. Stat. § 8218, providing that judgments rendered against a municipality shall be assessed upon its taxable property, and the amount thereof added to the other municipal taxes, mandamus will lie to compel the levy of an assessment to pay a judgment against a city, even though the rate of taxation will thereby be increased beyond the limit established by the charter.
    6. Same — Statutes—Amendments to Charter — Construction.
    Act No. 354, Local Acts 1897, amendatory of the charter of the city of North Muskegon, providing that, when the city shall be unable to meet the payment of any judgment ox-decree by reason of the limitation of its power of taxation, it shall be lawful for the council to issue bonds to pay the same, which shall not be disposed of at less than par value, is permissive merely, and does not impair the judgment creditor’s right, under the general statute, to have his demand collected by assessment against the taxable property.

      7. Same — Constitutional Law — Impairment of Contracts.
    It is beyond the power of the legislature, under the Constitution, so to limit the taxing power of a municipality as to preclude it from raising an amount necessary to satisfy its pre-existing legal obligations.

      Certiorari to Muskegon; Russell, J.
    Submitted April 6, 1898.
    Decided April 19, 1898.

      Mandamus by Henry B. Hammond and others to compel Charles S. Place, assessor of the city of North Muskegon, to assess against the taxable property of the city the amount of a judgment recovered by relators. Prom an order granting the writ, respondent brings certiorari.

    Affirmed.
    June 11,1896, the relators recovered a judgment against the city of North Muskegon for $1,393.60. They then applied to the respondent, the assessor, to place the amount of this judgment upon the tax roll for collection. He refused. They thereupon presented a petition to the circuit court for the county of Muskegon for a writ of mandamus to compel him to assess said amount. The petition does not set forth what was the basis of the judgment. The answer admits all the allegations of the petition, except that it denies that the petitioners have no other legal remedy. It further sets forth that the bonded indebtedness of the city is $35,000; that its assessed valuation is $33,000; that the officers of the city have from year to year spread upon the assessment rolls such amount as was deemed sufficient to pay the interest and bonds as they became due; that there is now due over $25,000 in delinquent taxes; that the assessment of this judgment will place taxation above the rate allowed by the charter, viz., 3 per cent.
    The court granted the writ, and the respondent brings certiorari.

      H. L. Delano, for relators.

      Philip W Ntskern, City Attorney (Q-eorge 8. Lovelace, of counsel), for respondent.
   Grant, C. J.

{after stating the facts). 1. No claim is made that these bonds were not valid when issued. Counsel insist that the sole remedy possessed by the persons holding them was by mandamus to compel an assessment as they became due. If this were a defense, it should have been raised in that suit. The position, however, is untenable. Even if an amount sufficient to pay them had been included in prior assessments, and had failed of collection, or had been collected and misappropriated, this would not bar the right of the holders to sue upon their bonds. Ralls County Court v. U. S., 105 U. S. 733.

2. Is it a good defense that the result of this assessment will increase taxation beyond the rate allowed by the charter ? The charter of the respondent has been several times amended and revised. It has always contained a limit to the rate of taxation. The charter of 1895, at present in force, limits the amount that may be raised by general taxation “for the purpose of defraying the general expenses and liabilities of the corporation, and for all purposes for which the several general sums hereinbefore mentioned are constituted,” to 3 per cent, on the assessed valuation. Act No. 466, Local Acts 1895, chap. 10, § 4. The general sums before mentioned are the contingent fund, the sinking fund, to pay the bonded indebtedness of the city and interest thereon, the fire-department fund, water fund, highway fund, poor fund, and police fund.

The validity of these bonds is conceded. When they were issued, does not appear. It is fair to presume that they were issued when the city was prosperous, and had prospects of permanent prosperity. It depended largely upon its sawmills and perhaps other manufactories. They have removed to a very large extent, and property has depreciated. Poverty, however, is no more a defense against just debts in a municipal corporation than in any other corporation or an individual. The validity of a contract made by a municipal corporation necessarily involves the right to raise by taxation the amount which it has agreed to pay ‘ ‘ The right to contract must be limited by the right to tax, and if, in the given case, no tax can be lawfully levied to pay the debt, the contract is void for want of authority to make it.” - Citizens’, etc., Loan Ass'n v. City of Topeka, 20 Wall. 655. The contract in this case being conceded to be valid, it follows that the only method by which it can he paid, viz., by taxation, is open to the payee. Taxation is the sole method provided by law for the payment of such debts. Execution cannot issue against the municipality. The proceeding by the writ of mandamus to compel payment of the judgment, or • of the bonds without a judgment, is in the nature of an execution, and the only remedy open to the creditor. Creditors of a municipal corporation are, of course, chargeable with notice that any limitation to taxation controls, and cannot be exceeded. It is therefore held that, where the power to provide for the payment of bonds is limited to an annual special tax of one-twentieth of 1 per cent, by the statute itself authorizing the issue of the bonds, a levy of taxes beyond that amount cannot be authorized. State, ex rel. Watkins, v. Macon County Court, 68 Mo. 29; U. S. v. County of Macon, 99 U. S. 582. So the constitutional limitations as to rate of taxation must control. Grand Island,, etc., R. Co. v. Baker, (Wyo.) 45 Pac. 494; City of Sherman v. Smith, 12 Tex. Civ. App. 580. Our Constitution imposes upon municipalities no limitation to taxation, but leaves that power in the legislature. So, also, where the law provided that “the aggregate of all taxes levied or ordered by any corporation shall not exceed 16 mills,” it was held that the assessor would not be compelled by the writ of mandamus to enforce a tax levied in excess of that amount. State, ex rel. City of Cincinnati, v. Humphreys, 25 Ohio St. 520; City of East St. Louis v. Board of Trustees, 6 Ill. App. 130. Our own court holds the same doctrine. Ironwood Waterworks Co. v. City of Ironwood, 99 Mich. 454.

None of these cases, however, involve the enforcement of the payment of bonds valid when issued, and merged in judgments. The contention means this: That the municipality may avoid its legal obligations by the reduction of its valuation, and making its running expenses equal to the limit of taxation. This is practical repudiation. Whether the valuation of the property of this city at $33,-000 was reached by the same methods as were severely condemned by this court, speaking through Justice Cooley, in Wattles v. City of Lapeer, 40 Mich. 624, we do not know, since there is no explanation in the .record. Whether, however, this singular result would follow from a strict construction of the limitation clause in its charter, we need not determine. Possibly in contemplation of such results, a special statute was enacted, providing for the assessment of judgments rendered against municipalities. 3 How. Stat. § 8218. This statute provides that judgments rendered against municipalities shall be assessed by the assessing officers upon its taxable property, and the amount thei’eof added to the other municipal taxes. It was enforced in Shippy v. Mason, 90 Mich. 45. It clearly provides for the payment of judgments, exclusive of the limitations to taxation established by municipal charters.

It is, however, seriously urged that the above act is repealed, so far as the city of North Muskegon is concerned, by an amendment to its charter passed in 1897. It was there provided that, when the city shall be unable to meet the payment of any judgment or decree by reason of the limitation of its power of taxation, it shall be lawful for the council to issue bonds to pay the same, which shall not be disposed of at less than par value. Act No; 354, Local Acts 1897, chap. 11, § 9. Under the state of facts set up in the answer of the respondent, the issue of bonds to meet this and the other judgments against the city would be useless. They could not be sold at any price. This amendment, however, does not attempt to repeal the general statute, but only makes it lawful for the common council to meet the payment in another way. The general statute remains in full force. If the legislature had passed an act designed to aid the municipality in avoiding its legal obligations, courts would not hesitate to declare it inoperative and void, as impairing the obligation of contracts. Mr. Justice Cooley thus forcibly states the doctrine:

“It is possible, however, that the State itself may so far sympathize with a debtor municipality as to be disposed to aid it in its obstructive methods to prevent collection; and it may seek to do this by so limiting the municipal power to tax that it shall be impossible for it to pay its debts by faxes raised within the legal limit. Where such obstruction has been attempted, however, it has been judicially determined that the limitation of the power to tax under such circumstances was an impairment of the obligation of contracts, and therefore inoperative. The argument, shortly stated, is that the State, in conferring upon its municipalities the power to contract debts and to levy taxes for their satisfaction, impliedly contracts with thos'e who become creditors in reliance upon the power, that such power shall not, while their demands remain unpaid, he so limited, impaired, or hampered as to preclude the municipality providing for and satisfying such demands according to their terms. Any subsequent legislation, therefore, which could have such injurious effect upon the interests of creditors, and deprive them of the resource of taxation, which they had a constitutional right to rely on, will be treated as inoperative and void, and a levy of taxes may be compelled, as it might have been if no such legislation had been attempted.” Cooley, Tax’n (2d Ed.), 76.

It follows that the judgment of the court below was correct, and it is affirmed.

The other Justices concurred.

       The decision in this case ruled the companion cases of Commercial & Savings Bank of St. Clair v. Place and Boston & New York Air Nine Railroad Co. v. Place, in which orders granting mandamus were also affirmed.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LOTH v. LOTH
    Equity Practice — Bill of Review — Affidavits—Admissibility.
    On the hearing of a petition for leave to file a bill of review, affidavits may be received denying the averments of the petition.
    Appeal from Marquette; Stone, J.
    Submitted April 7, 1898.
    Decided April 19, 1898.
    Bill by Katherine Loth against Alvina L. Loth to foreclose a mortgage. Decree for complainant. Defendant appeals from the denial of her petition for leave to file a bill of review.
    Affirmed.

      IP. II. Peters, for appellant.

      Hayden & Young, for complainant.
   Moore, J.

June 3, 1896, complainant filed a bill for the purpose of foreclosing a mortgage given by defendant. June 12th the subpoena was served personally upon the defendant. She appeared by her solicitor, who was served with a copy of the bill of complaint, July 8, 1896. No answer was filed, and in December defendant’s default was taken. In March, 1897, a decree was entered for complainant. In June, 1897, the property was advertised for sale. Before the sale occurred, defendant filed a petition for leave to file a bill of review, and the sale was postponed until in September. Upon the hearing of the petition of defendant, complainant was allowed to file affidavits denying the allegations of the petition. Upon the hearing the judge denied the petition. If the affidavits were to be considered at all, they were a complete refutation to the statements contained in the petition, and it was properly denied.

It is claimed the judge erred in receiving these affidavits, and that he was bound to accept the petition as true, and that the petition contained sufficient to entitle defendant to file a bill of review. The solicitor has not called our attention to any authority in support of his contention. In Day v. Cole, 65 Mich. 154, an answer was filed to the petition, and it was said by the court: “We ought not to grant the prayer of this petition without we have some reason to believe that the charges and facts therein alleged can be sustained by competent proof.” .We understand the rule to be well settled that, on the hearing of such a petition, affidavits may be admitted to explain the nature of the evidence. Jenn. Ch. Prac. 372; Puterb. Mich. Ch. (3d Ed.) 238; 2 Barb. Ch. Prac. (2d Ed.) 424. We think the trial judge, in the exercise of his discretion, very properly denied the petition.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    SOGGE v. SCHWARTZ.
    Bill or Particulars — Amendment.
    A bill of particulars stated that in October, 1892, on a full settlement of partnership dealings, it was found that defendant owed plaintiff §1,000, which he agreed to pay. The evidence showed that, while there was a partial settlement in October, there was no full settlement until November, and that the amount actually due was §528.50. It appeared that the settlement was made with defendant personally, and that the books and papers of the partnership had been all the time in his custody. Held, that the bill of particulars did not surprise or mislead defendant so as to prevent an amendment at idle trial to correspond with the proofs.

      Error to Leelanaw; Corbett, J.
    Submitted April 7, 1898.
    Decided April 19, 1898.

      Assumpsit by Lars R. Sogge against Jacob Scbw'artz upon an account stated. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Pratt & Davis, for appellant.
    O. L. Dayton and Patchin & Grotser, for appellee.
   Moore, J.

Plaintiff sued defendant, and declared on all the common counts in assumpsit. The bill of particulars was as follows:

“October, 1892. To amount found due upon a statement of account between the above-named plaintiff and the above-named defendant on settlement of the partnership dealings between the said plaintiff and the defendant and William C. Nelson, which amount, upon full settlement of said partnership account, was agreed to be paid by said defendant to said plaintiff, $1,000.”

Testimony was given showing that plaintiff and defendant and one Nelson were partners; that defendant had one-half interest, plaintiff one-fourth, and Mr. Nelson one-fourth interest in the partnership. Testimony was then offered tending to show that a partial settlement of the partnership affairs was made in October, 1892, and that there was a full settlement in November. Objection was made to any testimony showing a settlement in November under the bill of particulars. This objection was overruled, but no exception was taken. It was shown that under this settlement there was due Mr. Sogge and Mr. Nelson from Mr. Schwartz $1,057. Defendant’s attorney then entered upon a full cross-examination of the witness in relation to the partnership dealings. Testimony was taken which fills 20 pages of the printed record, when, for the first time, any objection was made to the testimony upon the ground that the amount proven upon the settlement differed from the amount stated in the bill of particulars. Counsel for defendant at this point moved to strike out the testimony for that and other reasons. Counsel stated that he claimed that, as a bill of particulars had been furnished of an account stated, plaintiff could not vary from the amount stated in the bill of particulars one cent more or one cent less. The court then overruled the motion, and said that the question might be raised when the testimony for plaintiff was all in.

Other testimony was taken, going fully into the details of the partnership and of the settlement. The testimony of the plaintiff was to the effect that, in a settlement made between plaintiff and defendant and Mr. Nelson, there was found to be due upon a settlement commenced in October, 1892, and completed in November, $1,057 from defendant to Mr.' Nelson and Mr. Sogge, one-half of which was to be paid to each of them by Mr. Schwartz. When plaintiff rested his case, the defendant renewed his motion to strike out the testimony of the plaintiff, and that the judge direct a verdict for the defendant, for several reasons, one of which was because the testimony did not tend to prove the claim set forth in the bill of particulars. The judge stated that he thought the objection to the variance between the proofs and pleadings was well taken, but suggested that the bill of particulars could be amended. An exception was taken to the ruling of the court, and the plaintiff asked to amend the bill of particulars so as to state the amount due the plaintiff to be $528.50, instead of $1,000. Defendant objected to this, unless the case was continued for the term, with costs to be taxed. The counsel for plaintiff said that he did not press his motion to amend upon the terms required by the defendant, and that he did not see how defendant was misled as to the amount claimed to be due, as he had come in with his papers and cross-examined the witnesses fully, and asked for a ruling of the court upon the motion to strike out the testimony and direct a verdict for defendant. The court replied:

“I think the rule is as I have stated it, that on an account stated the correct amount ought to be stated, and it remains with the defendant whether this matter will be closed up. If the objection is insisted upon, I think it is .well taken.”

' Defendant insisted upon his objection, and the court directed a verdict in favor of defendant.

The sole question involved is, Was the bill of particulars sufficient? The record shows that the alleged settlement was made with defendant personally, and that, from then until the trial, the books and papers of the partnership were in his custody. In Davis v. Freeman, 10 Mich. 188, it is said:
“The office of a”bill of particulars is to inform the opposite party of the cause or causes of action the party giving it intends to rely on at the trial, not specifically set out in the declaration, or notice accompanying the general issue. ”

In Wright v. Dickinson, 67 Mich. 580, the court said:

“A bill of particulars, in practice, is considered in some respects as an amplification of the declaration, but it is considered sufficient if it fairly apprise the opposite party of the nature of the claim, so that there can be no surprise. Brown v. Williams, 4 Wend. 360.”

In Freehling v. Ketchum, 39 Mich. 299, it was said:

“The purpose of the rules in allowing bills of particulars to be demanded is to enable defendants to avoid surprise, and not to enable them to make vexatious requirements.”

See, also, Collins v. Beecher, 45 Mich. 436.

In Hamilton v. Ingham Circuit Judge, 84 Mich. 393, it is said:

“In mentioning dates, it is not necessary that the exact date shall be given, but it may be stated as ‘ on or about a certain day,’ and in that case the plaintiff is not restricted to proof of that special day. The question to be determined at the trial in each case is whether the proof is so variant from the date alleged as to mislead the opposite party.”

In 1 Green, Prac. 512, it is said:

“But as the object of this strictness in a bill of particulars is that the defendant may know what will' be attempted to be proved against him at the trial, and may prepare his evidence accordingly, a mistake in a particular not calculated to deceive or mislead him will not be regarded as material.”

Testing the bill of particulars by these statements, can it be said that the defendant was misled ? The bill of particulars is for an amount found due in October, 1892, upon a statement of account between the plaintiff and defendant on settlement of the partnership dealings between the plaintiff and defendant and William O. Nelson, which amount, upon full settlement of said partnership account, was agreed to be paid by said defendant to said plaintiff, $1,000. The proof was that a settlement of account was commenced in October and completed in November, when there was found due from the defendant to the plaintiff, upon a statement of account on settlement of the partnership dealings between the parties to this suit and Mr. Nelson, which amount, upon full settlement of said partnership account, was agreed to be paid by said defendant to said plaintiff, the sum of $528.50. We think it too technical to say that defendant was misled. The same settlement was referred to in the proofs that was referred to in the bill of particulars. The only difference was that in the bill of particulars the amount stated to be due the plaintiff from the defendant was $1,000, while the proofs showed that there was due but $528.50.

We think the court erred in his disposition of the case. Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    RUMNEY v. DETROIT & MONTANA CATTLE CO.
    Corporations — Receivers—Rights op Minority 'Stockholders.
    A receiver should not be appointed for a corporation on the application of one comparatively small stockholder, on the ground that another stockholder has obtained full management of the corporation, and that there has been no meetihg of the directors, and that no reports of the condition of the company have been filed, and that such other stockholder has declared dividends only when threatened with proceedings for a receiver, and has then withheld the applicant’s share of the dividend, where no other stockholders are dissatisfied with the management, and it does not appear that the ’corporation or the managing stockholder is insolvent, or that the latter has converted any of the corporate property to his own use.
    Appeal from Wayne; Lillibridge, J.
    Submitted April 7, 1898.
    Decided April 19, 1898.
    Bill by John G. Rumney against the Detroit & Montana Cattle Company and its stockholders for the appointment of a receiver. From a decree for complainant, defendants appeal.
    Reversed.

      Russel & Campbell, for complainant.

      Elliott 6r. Stevenson, for defendants.
   Hooker, J.

The complainant, John G. Rumney, is a stockholder of the Detroit & Montana Cattle Company, which is a Michigan corporation. He owns 521 out of 4,000 shares of a capital of $100,000. He is also a member of the Rumney Land & Cattle Company, which has or had contract relations with the Detroit & Montana Cattle Company, and has pending litigation concerning them. Charles F. Hammond is a stockholder, as representative of his father’s estate, in the Detroit & Montana Cattle Company. Complainant’s. bill states that he has control of a majority of the stock. The business of the Detroit & Montana Cattle Company consists of the raising of cattle in Montana, where it has had large herds for several years, and still has a considerable number, in charge of the Rumney Land & Cattle Company, which is under contract obligations to care for and market the same. Each company claims that the other is its debtor. The bill of complaint is filed against Hammond and the corporation, to enjoin Hammond, whom it alleges to be in absolute and full control of its affairs, from disposing of any property or money in his hands belonging to the Detroit & Montana Cattle Company, to procure the appointment of a receiver of the assets of said company, to obtain an accounting by said Hammond, to compel the turning over to the complainant of his shares of stock, now in the custody of said company, and held by it as security for the performance of the contract made by the Rumney Land & Cattle Company, and to wind up the concern and distribute its assets. The application for a receiver pendente lite was heard upon the bill, and answer in the nature of a cross-bill, which also prays accounting between the parties, and upon affidavits permitted to be filed at the hearing, and an order was made for the appointment of such receiver. The defendants have appealed. It seems to be conceded that the application is here upon its merits.

The bill charges Hammond with fraudulently procuring himself to be given absolute and full management, by resolution of the board of directors, against the consent and protest of the complainant, for the purpose of winding up the affairs of the concern, and with preventing the stockholders from managing its affairs. It alleges that no meetings of the directors have been held, no reports of the condition of the company filed as required by law, and that such condition has not been made known to the stockholders. It is alleged, upon information and belief, that no books of the transaction of the business and affairs of the corporation have been kept since said Hammond has managed its affairs, except a private memorandum kept by Hammond, which is inaccessible to stockholders and officers, and that he has declined and refused to give true and accurate statements of such matters to the president and other officers of the corporation. It is also alleged that defendant Hammond has declared dividends only when threatened with proceedings for a receiver, and that he has withheld from the complainant his share in said dividends when declared. It avers, on information and belief, that such dividends were withheld from other stockholders, and that Hammond has large sums which he refuses to divide, and is in the habit of loaning for his own profit.

It is a significant fact that this bill is filed by one comparatively small stockholder, and there is no showing (unless it is to be inferred from the affidavit of one Hart, the president) that other stockholders are dissatisfied with the management. There is no allegation of insolvency, and it is not disputed that the complainant, or the Rumney Land ■& Cattle Company, for whose acts he is claimed to be responsible, is in control of most, if not all, of the property of the corporation, aside from money, and it is claimed that until such cattle are put in condition for market, and sold in the ordinary course of business, its affairs cannot be profitably closed. It is not charged that Hammond is irresponsible, or that any of the property of the concern has been converted by him to his own use, except the unsubstantiated statement that he loans its money. On the other hand, it is obvious that the dispute over the unsettled claims between the two companies is the mainspring of this litigation. We are of the opinion that it is not shown that the interests of the great majority of the stockholders would be subserved by closing up the affairs of this corporation at this juncture, especially if, as alleged in the answer, it has a large claim against Rumney. The mutual claims of these companies can be settled by a direct proceeding for the purpose. We discover no necessity for a receiver, unless it be to wind up the- affairs of the corporation, and we do not'see why that cannot be done by the corporation itself, if a majority think it advisable.

The order is reversed, with costs.

The other Justices concurred.


author: Long, J.

text:
    BROCKETT v. SAGENDORPH.
    Limitation of Actions — Indorsement on Note — Authority— Evidence.
    Plaintiff, who held defendant’s note, wrote him that he would like to indorse upon the note, as a payment, the price of a cloak which plaintiff’s daughter had purchased upon defendant’s credit, with his consent. Defendant replied: “The cloak is not paid for yet; still, I shall try and take care of it.” Plaintiff thereupon made the indorsement, and afterwards wrote defendant, advising him of the fact, to which letter defendant made no reply. Held, to support a finding that the indorsement was authorized, so as to arrest the running of the statute of limitations.
    Error to Jackson; Peck, J.
    Submitted April 7, 1898.
    Decided April 19, 1898.

      Assumpsit by Lucius B. Brockett against Daniel P. Sagendorpb upon a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      D. P. & W. K. Sagendorph (Bichard Price, of counsel), for appellant.

      Williams & Lockton, for appellee.
   Long, J.

This action was brought upon a promissory note of $285, dated December 31, 1884, due in three months. It bore the following indorsements:

“Paid January 1, 1886, $38.00.
icPaid January 5, 1886, $1.00.
“Paid June 11, 1886, $15.55.
“Paid November 29, 1889, $25.34.
“Paid November 29, 1894, $35.00.”

The plea was the general issue, with notice of the statute of limitations and set-off. The only question in the case is whether the indorsement of November 29, 1894, was authorized by the defendant, and the note thus taken out of the operation of the statute. The suit was commenced February 4, 1897. But two witnesses — the plaintiff and his daughter — were sworn in the case. Letters passing between the parties were also introduced by plaintiff. At the close of plaintiff’s case, the defendant asked the court to direct the verdict in his favor. This was refused, and the question was submitted to the jury, who-found a verdict in favor of plaintiff for the amount claimed.

It appears that the parties are brothers-in-law. The plaintiff lived in Battle Creek, and the defendant at Jackson. They had not seen each other since 1889. In October, 1894, the plaintiff’s daughter visited defendant at Jackson, and, while there, asked the defendant for $50, saying that her father told her to get the money from him, and he would settle for it. Defendant did not have the-money, but sent her to a store' where she purchased a. coat, and he arranged for the payment with the storekeeper, and it was charged to him. She was directed by the plaintiff to get the money from defendant to purchase the coat. On November 22d plaintiff wrote defendant as. follows:

“Anna spoke to me soon after her return from Jackson about the money she had from you, and I meant to have written, but did not find the time when I remembered it. * * * I would like to indorse the money Anna got on your note, if convenient for you; and, if you could help me still further, it would be a great favor. Please send more if you can. * * * ”

Defendant answered this letter on November 27, 1894,, as follows:

“I am in receipt of your letter of the 22d inst. Anna’s cloak is not paid for yet; still, I shall try and take care of •†. sfc :H * 5>

After this letter was received, the plaintiff indorsed upon the note the amount paid for the coat as of November 29, 1894; and he testified that he took the defendant’s letter as giving him the authority to do so. It also appears that in March, 1893, plaintiff had written defendant, asking payment of the note. He also wrote defendant in February, 1896, that it must be paid, but heard nothing from him after the letter of November 27, 1894. The plaintiff testified that he wrote defendant after this last indorsement was made, telling him the amount due and the indorsements that had been made, including this indorsement of $35.

We think the court very properly left the question involved to the determination of the jury. They had the right to take into consideration all the circumstances surrounding the case, as well as the letters passing between the parties; and they were told by the court that, if they found from the circumstances, the testimony, and the letters that the defendant did not authorize this indorsement, the plaintiff could not recover.

It is contended, further, that the court was in error in stating to the jury that if the plaintiff notified defendant of the indorsement of November 29,1894, they might take that fact into consideration, with other circumstances, in determining whether the defendant authorized the indorsement. The claim is that this charge was not warranted by the evidence. We think it was warranted by the record, and that the charge was properly given. The plaintiff’s attention having been called to this indorsement, he testified that he “made the indorsement, and afterwards wrote to him in reference to it, telling the amount due, and showing the payments.” He was asked: “ Including the indorsement of $35?” Answer: “All indorsements.”

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

The other Justices concurred.


text:
    SHELDEN v. FREEMAN.
    Mortgages — Execution — Certificate of Acknowledgment — Presumption.
    A certificate of acknowledgment of a mortgage, in proper form, raises a presumption of the execution of the paper as stated therein.
    Appeal from Saginaw; Wilber, J.
    Submitted April 8, 1898.
    Decided April 19, 1898.
    Bill by Allan Sbelden against Caroline M. Freeman and others to foreclose a mortgage. From a decree for complainant, defendant Freeman appeals.
    Affirmed.

      Hanchett & Hanchett, for complainant.

      Trask & Smith (O. H. Gage, of counsel), for appellant.
   Moore, J.

Complainant filed a bill to foreclose a mortgage. The bill was taken as confessed by all of the defendants except Caroline M. Freeman, who claimed that her signature to the mortgage was a forgery. A decree of foreclosure was granted as prayed, from which decree Mrs. Freeman has appealed.

The only question involved is the question of fact whether Mrs. Freeman executed the mortgage or not. The original mortgage, duly recorded, was offered in evidence. It purported to contain the .acknowledgment of Mrs. Freeman, made before a justice of the peace. Such. a certificate of acknowledgment raises a presumption of the execution of the paper as stated therein. That presumption has not been overcome by satisfactory evidence in this case. Saginaw Building & Loan Ass’n v. Tennant, 111 Mich. 515, and cases therein cited.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    McCORMICK HARVESTING MACHINE CO. v. CUSACK.
    1. Sale — Statute op Frauds — Part Delivery — Separate Transaction.
    Where an agent for a harvesting machine company, to induce ^a customer to order a binder, agreed to “put in on the deal,” without extra charge, a corn shelter belonging to him, and of which the company had no knowledge, and the order as signed made no mention of the sheller, its delivery by the agent did not operate as a part delivery, sufficient to take the agreement for the purchase of the binder out of the statute of frauds.
    2. Same — Assumpsit por Purchase Price — Passing Title —Delivery.

      Assumpsit will not lie for the price of a machine purchased under a written order directing that it be consigned for the purchaser to the care of a local agent of the seller, to be paid for in approved notes on delivery, where the purchaser refuses to execute the notes as agreed, and the property is not turned over to him; there being no such delivery as to pass the title.
    Error to Kent; Grove, J.
    Submitted April 8, 1898.
    Decided April 19, 1898.

      Assumpsit' by the McCormick Harvesting Machine Company against George M. Cusack for the purchase price of a binder. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Wolcott & Ward, for appellant.

      Maher & Salsbury, for appellee.
   Moore, J.

The plaintiff sued the defendant, in an action of assumpsit, to recover the price of a binder. The circuit judge directed a verdict for defendant. Plaintiff appeals.

' The testimony on the part of the plaintiff was substantially as follows: Mr. Grutsch, a traveling salesman for plaintiff, visited defendant, and urged him to sign an order for a harvesting machine. The witness said:

“I had my order drawn up, ready, trying to have him sign the order, and sell him the machine; showed him the contract, and everything; and he broke out of the binder conversation, and wanted to know if we handled corn shellers; and I told him we did not, but that I. had a second-hand corn sheller, that I had in business when I was-in the feed business, that I would sell him cheap. He wanted to know what the price would be. I told him three dollars; and he finally said, ‘If you will put in the corn sheller on this deal, we will call it a deal.’ I told him we would do it; and it was getting dark and late, and I says,. ‘We will throw in the corn sheller, and make the deal.’ I handed him the order, and he signed it, and I gave him a copy of the order, and we went home.”

The order signed was as follows:

“McCormick Harvesting Machine Company’s Order Blank.
“Give each purchaser a dupli- Delivered on cars
cate of this order. in Chicago.
“McCormick Harvesting Machine Company will ship for the undersigned, any time before the coming harvest, one of their latest improved 6-ft. cut binder, carrier, and trucks, consigned to the care of Edw. Stoddard, at G-rand Rapids; the undersigned agreeing on delivery of the machine to pay the McCormick Harvesting Machine Company $125, in the following manner: To execute approved notes for the sum of $30, payable on the 1st day of November, 1897; $40 payable on the 1st day of November, 1898; $40 payable on the 1st day of November, 1899; $15 allowed on one old Wood binder,- — with interest thereon at the rate of 6 per cent.' per annum from date, July 1st, 1898, next, until due, and 8 per cent, thereafter until paid, and agree to make settlement as above stated upon delivery of machine. The machine to be warranted as per the following warranty, without addition or erasure, a copy of which I have this day received: The machine is warranted to be well made, of good material, and durable with proper care. If, upon one day’s trial, the machine should not work well, the purchaser shall give immediate notice to said McCormick Harvesting Machine Company, or their agent, and allow time to send a person to put it in order. If it cannot then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and all cash and notes Received in settlement will be refunded. Continuous use of the machine, or use at intervals through harvest season, shall be deemed an acceptance of the machine by the undersigned.
“Dated the 11th day of January, 1897.
“George M. Cusack.” •

The corn sheller was afterwards delivered to defendant. It was a corn sheller owned by Mr. Grutsch, and not by the plaintiff, and at this time was at Grand Rapids. The witness says that the price of the corn sheller was after-wards passed to his credit, and that he got the money for it. The order given by defendant was not sent to Chicago.

Mr. Stoddard was sworn as a witness, and testified that the first time he ever saw defendant was about the 1st of June, when he came into the office at Grand Rapids, and said that he wanted to countermand his order for a binder. “ I said to him, we could not do it; that we had already received his machine, and had it there for him any time.” Afterwards this witness received a written countermand of the order from defendant, which had first been mailed to the plaintiff at Chicago, which was forwarded by it to Mr. Stoddard. It was dated June 12, 1897. The witness said the machine was still at his place at the time of the trial; that defendant had never been to get it, and had never signified his willingness to take it. The testimony of this witness was that the machine was shipped from Chicago with 13 or 15 others; that they were not put together when shipped; that, after the machines arrived in Grand Rapids, they were set up, and one of them was set apart in one corner of the room; that it was not labeled with the name of the purchaser, and there was nothing to distinguish it from any other machine; that it was not placed on board the cars in Chicago, consigned to Mr. Cusack. June 12, 1897, defendant sent a three-dollar postal order to Mr. Grutsch, in a letter; saying it was in full payment for the corn sheller, and that he had countermanded the order for the binder. Before defendant saw Mr. Stoddard, he notified Mr. Grutsch, as early as in April or May, that he had countermanded his order, and should not take the machine. June 18th, Mr. Grutsch visited defendant, with notes drawn to comply with those described in the order, and requested him to sign them. This he refused to do. At this time the posial order for $3 was returned to defendant by Mr. Grutsch, and defendant produced it upon the trial.

It was the claim of defendant that, when the order was given, he was told by Mr. Grutsch that he could countermand the order any time before harvest, by simply seeing Mr. Stoddard, in Grand Rapids, and telling him he did not want the machine. He also claimed that Mr. Grutsch told him it would help him very much about sales in that neighborhood if he would sign the order, and that, if he would sign it, Mr. Grutsch would give him the corn sheller, and that he relied upon these statements when he gave the order. He testified that he notified Mr. Grutsch the fore part of April, and Mr. Stoddard a week or two later, that he did not want the machine, and would not take it, and that later he saw Mr. Stoddard again, and told him the same thing, and on the 12th of June sent a written countermand to Chicago. He denied that at the time he saw Mr. Stoddard he was told the machine was on hand. There is nothing in the record to show that, before Mr. Cusack -undertook to countermand his order, he had any knowledge that any machine had been consigned for him to Mr. Stoddard, at Grand Rapids; nor is there anything in the record to show that any machine was ever pointed out to him as the machine which was intended for him, or that he ever saw any machine which he was told was intended for him, or that he was ever requested to make a selection of those shipped from Chicago, one of which, it is said, was intended for him.

After the testimony was all in, Judge Grove concluded that the question involved was one of law. He concluded that the agreement in relation to the corn sheller was a distinct transaction from the order for a sale of the machine, and found that there was no delivery of part of the goods mentioned in the order, so as to take the transaction out of the statute of frauds. His further reasons for directing the verdict are stated by him as follows:

“I do not believe that it was the .intention of these parties that there should be any delivery of the machine into the actual possession and control of the defendant until he complied with his part of the agreement, by giving approved notes; and that he refused to do. It is a part of the order that the defendant agrees on delivery of the machine to pay by giving those three notes. Now, he could not take the machine, against the consent of Mr. Stoddard, acting for the plaintiff, without giving those notes. I do not think there was a delivery.' But, whether the title had passed under the contract by its acceptance, it was accepted, in my judgment, by the shipment to Mr. Stoddard, at Grand Rapids. If the order had been forwarded to Chicago, and this machine, pursuant to that order, had been sent just as the car load was sent, — • directed to Mr. Stoddard as consignee, — it might be said that there was a delivery; it might be said that the defendant himself designated the manner and place of delivery, as well as the time, and that he made Mr. Stoddard his agent to receive it here at Grand Rapids. Still, he could not have got the property unless he completed his part of the agreement by giving approved notes. I understand it to be a general rule that where the title has not passed, and there is a performance — a full performance — on the part of the vendor, and a readiness to deliver and pass the title, and a refusal on the part of the vendee to carry out his part of the contract, an action may be maintained against the vendee for damages on account of the breach of the contract. That is not this form of action. This is an action for the price. If the title had passed; if this were a case where the property had gone into the possession and control of the defendant, and he refused to give the notes,— that is, he refused to give security (I take it, by the term ‘approved notes,’ some security was mentioned), — if he refused to give it, that an action for the price might have been presently maintained, notwithstanding the rule that where goods are sold on credit, and there is a refusal on the part of the vendee to accept, the plaintiff cannot sue (the vendor cannot sue) for the price until the credit expires, but must sue the defendant for the breach. And I think it was held (it is in Michigan, at least) that where there is an agreement for credit, and there is to be security-given by the vendee, and he refuses to give the security, an action may be maintained for the price payable at once. I am inclined to hold in this case that it was the intention of the parties that the title to this machine should pass on delivery to the defendant, at Grand Rapids, on his paying for it in the manner provided by the contract, — by executing approved notes, — and that an action for the price, under all the circumstances of this case, cannot be maintáined. That will be your verdict, gentlemen of the jury, —verdict for the defendant, of no cause of action.”

It is urged by the appellant that the court erred in holding that the delivery of the corn sheller was not a delivery of part of the goods, and sufficient to take the case out of the statute of frauds. The com sheller did not belong to the plaintiff. At the time of the alleged contract there is nothing to indicate that the plaintiff knew that this particular corn sheller was in existence. No mention was made of it in the order. So far as it was. concerned, it was a transaction, not between the plaintiff and defendant, but between Mr. Grutsch and defendant. The court did not err in so holding.

Speaking for myself, I think there was no acceptance of this order. It is not shown by the evidence that the plaintiff ever shipped for Mr. Cusack, consigned to the care of Edward Stoddard, a binder, as requested in the order. The most that can be said of the transaction is that a quantity of machines were shipped to Mr. Stoddard, one of which he set apart for defendant. Mr. Stoddard testified that the company was never directed to ship a machine to Mr. Cusack, in his care. It, however, is not necessary to pass upon that feature of the case, as we are all agreed that the circuit judge was right in holding that there had been no such delivery of the machine as to vest title in the defendant. It will be observed that plaintiff, when the order was given, did not agree to fill the order. It was not bound to do so, and, if it had failed to send the machine, defendant would have been remediless. The order provides that upon, the delivery of the machine the notes shall be given. No machine had been consigned to defendant. None had been pointed out to him as his. If he had wanted to insist upon having a machine, and for any reason Mr. Stoddard had refused to deliver him one, how could he have obtained a machine by bringing replevin ? Or, if he had insisted upon having the machine which Mr. Stoddard says was there, could not Mr. Stoddard have refused to deliver it to him until he had given approved notes? We do not think there had been such a delivery that title passed to defendant, and, before plaintiff could maintain assumpsit for the price of the machine, the title must vest in the vendee. Ganson v. Madigan, 13 Wis. 67. See Yockey v. Norn, 101 Mich. 193 (36 L. R. A. 145). Before the delivery of the goods will be sufficient to take the contract out of the statute of frauds, where such an order as this one is given, some of the goods must be received and accepted by the vendee or his agent. In 8 Am. & Eng. Enc. Law, at page 730, it is said:

“To the existence of actual receipt by the buyer, it is essential that there should be a relinquishment by the seller of his vendor’s lien, couplfed with a taking of the goods, in whole or in part, by the buyer, or an agent with his authority, with the intention of maintaining a possession adverse to the seller.”

Before defendant had any notice that the goods had been shipped from Chicago, he notified plaintiff’s agent that he would not receive them. (3n the 13th of June he notified plaintiff, in writing, that he would not receive them; and it was not until six days later that plaintiff indicated to him that it would not insist upon approved notes before it would deliver the machine, or gave any intimation that it relinquished its lien as vendor. The defendant all the time has declined to take any possession of the machine, and it cannot be said that he has taken any possession adverse to the seller.

Judgment is affirmed.

The other Justices concurred.


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    PEOPLE, ex rel. RYAN, v. VAN ANDEN.
    1. Municipal Officers — Tenure—Construction of Charter.
    Act No. 374, Local Acts 1897, revising the charter of Grand Rapids, provides (title 2, § 6) for the appointment of a build, ing inspector on the first Monday in May after the passage of the act, and each year thereafter, who shall hold his office for one year. Title 12, § 33, provides that all the officers of the city, in office at the passage of the act, who were appointed for a longer period than till the first Monday in May thereafter, shall continue in office until the term for which they were appointed expires by limitation, “except as herein otherwise provided.” Held, that the office of building inspector was within the exception.
    2. Same — President of Council — Appointments in Mayor’s Absence.
    Where a charter provides for nominations to city offices by the mayor, subject to the confirmation of the common council, and confers upon the president of the council the right to discharge the municipal duties of the mayor during the latter’s absence, a nomination to office by the president of the council, made and confirmed during the mayor’s absence from the State, is valid.
    Case made from Kent; Adsit, J.
    Submitted April 8, 1898.
    Decided April 19, 1898.

      Quo warranto proceedings by the people, on the relation of William J. Ryan, against Charles H. Van Anden, to try the title to the office of inspector of buildings of the city of Grand Rapids. Relator had judgment, and respondent assigns error.
    Affirmed.

      Charles W. McGill, for appellant.

      Taylor & Eddy, for appellee.
   Hooker, J.

An information in the nature of a quo warranto was filed in the circuit court to try the respondent’s title to the office of inspector of buildings in the city of Grand Rapids. The record shows that on June 15, 1896, the mayor of Grand Rapids “nominated and appointed ” the respondent to the office of inspector of buildings for the term ending the first Monday in May, 1898, subject to confirmation by the council, which was duly made. This was under a provision of the city charter which made the term of said office the period of two years. In the winter of 1897 the charter was amended (Act No. 374, Local Acts 1897), and it is claimed that the term was reduced to one year, and that it had the effect to terminate respondent’s right to the office on May 1, 1897. The provisions supposed to affect the question are the following:

“The mayor shall, on the first Monday of May after the passage of this act, or within a reasonable time thereafter, and on the first Monday in May of every succeeding year, or within a reasonable time thereafter, nominate a building inspector, who shall hold his office for one year, and until his successor is appointed and qualified. * * * All such nominations shall be subject to confirmation by a majority vote of all the aldermen-elect of the common council.” Title 2, § 6.
“All the officers of the city who may be in office at the passage of this act shall continue to exercise the duties of their respective offices until the first Monday in May thereafter, and until their successors shall have been elected or appointed and duly qualified: Provided, they shall not have been elected or appointed for a longer period, but, if they were elected or appointed for a longer period, they shall continue to exercise the duties of their respective offices until the term for which they were elected or appointed shall expire by limitation, except as herein otherwise provided.” Title 12, § 33.

This revision of the charter was given immediate effect. On May 3, 1897, the mayor nominated the respondent as inspector of buildings for the period of one year after that date, and until a successor should he nominated, confirmed, and qualified. The council refused to confirm this nomination, and again, on June 1st, the respondent was nominated, but failed of confirmation. Subsequently, and while the mayor was absent from thes State, the president of the council, while acting mayor, nominated the relator, and his nomination was confirmed by the council at a regular meeting. On the same evening, after the council adjourned, the president of the council filed his approval of said confirmation.

The questions raised by counsel are: First. Did the revision of the charter change the term of office of the respondent? Second. It so, had the president of the council the authority to nominate the relator ? The power of the legislature to shorten respondent’s term of office is not questioned, and it is conceded that section 6, tit. 2, hereinbefore quoted, would have that effect but for the provision of section 33, tit. 12, which is said to continue him in office until the expiration of the time for which he was appointed; and it is urged that this provision would' be meaningless unless given that effect. It is doubtless true that this language is meaningless unless it has the effect to relieve one or more of the officers of the city from the provisions of section 6; but, on the other hand, the words “except as herein otherwise provided” are meaningless unless they render the preceding words of said section 33 inapplicable to one or more officers whose terms would thereby be preserved. Section 33 is a saving clause as to some offices, and would be as to all but for the words “except as herein otherwise provided.” Counsel for the relator call attention to certain officers whose terms were within the saving clause, and we think the respondent’s office was clearly within the exception, as section 6 plainly requires that his successor should be appointed in May, 1897.

Section 2, tit. 3, of the revised charter, provides:

“The common council shall, on the first Monday in May in each year, or within ten days thereafter, elect by ballot one of their number, who shall be known as president of the council, and who shall possess the same powers and perform and discharge the municipal duties of the mayor, dgring the absence, inability, death, resignation, or removal of the mayor.”

We are of the opinion that this confers upon the president all of the power and authority of the mayor during the period of his absence from the State. In this case the mayor was absent from the State for upwards of two weeks, and had announced an intention to be absent three weeks. He did not, in fact, return until after the confirmation and approval. Whether or not the approval of the confirmation was necessary we need not discuss, because, if necessary, it was seasonably announced.

The judgment is affirmed.

The other Justices concurred.


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    KIRKPATRICK v BESSALO.
    1. Payment — Negotiable Paper.
    The taking of an acceptance for the price of goods sold does not, in the absence of special agreement, amount to a payment of the debt.
    2. Corporations — Liability of Stockholders for Goods'Sold.
    1 How. Stat. § 3940, making each of the stockholders and directors of an incorporated co-operative association individually liable for goods sold the corporation “to the amount of his capital stock therein, and no more,” imposes a liability equal to and over and above the full-paid value of the stock held.
    Error to Houghton; Haire, J., presiding.
    Submitted April 8, 1898.
    Decided April 19, 1898.
    Proceedings by Allen Kirkpatrick against Frank Bessalo under 1 How. Stat. § 4886 et seq., to enforce the in dividual liability of defendant for goods sold to a corporation in which he was a stockholder. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      A. T. Streeter, for appellant.

      Dunstan & Hanchette, for appellee.
   Long, J.

The Mechanics & Miners’ Co-operative Association is a corporation organized under chapter 116, 1 Blow. Stat., and in 1895 was doing business at Red Jacket, this State. The capital was divided into shares of the par value of $10 each. The defendant was a stockholder, owning two shares. The largest amount of stock held by any one stockholder was four shares. Section 6 of the organic act (1 How. Stat. § 3940) provides:

“Stockholders and directors shall be severally and jointly liable for all debts for labor performed for said corporation ; and for all goods, wares, and merchandise sold and delivered to any such association, each of the stockholders or directors thereof shall be held liable to the amount of his capital stock therein, and no more.”

Sections 4886 and 4887, 1 How. Stat., provide the manner of enforcing such liability. The plaintiff is a wholesale commission merchant, and sold and delivered goods to the association in 1894 and 1895. On June 21st he stopped selling goods to the association, and took for the balance of his account, which included goods sold and delivered from May 13th to June 14th, two acceptances, each for one-half of the amount then due, together with 8'per cent, interest, one payable in August, and one in September, of that year. Neither of these acceptances being paid, plaintiff commenced two suits in justice’s court in January, 1896, against the association; and on February 7th judgments were taken for the amount of the acceptances in each case,'with interest from June 21, 1895, to the time of the trials. Transcripts of. these judgments were taken to the circuit court. Executions issued thereon out o£ the circuit court, which were returned unsatisfied. Thereupon proceedings were taken to enforce the claims under the above statute against the stockholders. The cause was tried as against this defendant before a jury, and the court directed verdict in favor of plaintiff. Defendant brings error.

Counsel for defendant contends that there was evidence to go to the jury on several questions of fact. We find no conflict of evidence in the case. The plaintiff showed that he sold goods to the association; and it was conceded by counsel for defendant that the goods were sold to the amount of these acceptances. It was shown that these acceptances were never paid, and that the suits were brought and the judgments were obtained for the identical goods that were sold between May 13 and June 21, 1895. It is contended that the question whether the acceptances were received as payment was one of fact, and that the evidence was conflicting upon that question. There was, however, no conflict of evidence in this regard. The plaintiff testified that no talk was had that the acceptances should be treated as payment, and this was not contradicted. In Kirkpatrick v. Mehalitch, 113 Mich. 631, the same contention was made, and it was held, not only that the judgments rendered before the justice were for goods, wares, and merchandise, within the meaning of this statute, but that the taking of the acceptances did not extend the time of payment, and did not release the stockholder. That case grew out of the same judgments before the justice, and was a proceeding to enforce the payment* against Mehalitch as a stockholder.

But counsel now contends that the manner of dealing between the parties must be considered as bearing upon these questions. It appears that John Phillips was the manager and purchasing agent of the association between the 1st day of January, 1895, and the following July. He was absent for a time; and E. C. McLean, the bookkeeper, acted in his stead during that time, and made the purchase of the goods in controversy. The board of directors knew of these purchases. The matter of the sale of the goods and the giving of the acceptances was talked over by the board of directors. The board knew they were time acceptances. The goods sold to the association up to January 10, 1895, were sold on a cash basis, each invoice being settled for separately as soon as the goods were received by the association. Beginning with February, 1895, settlements were made monthly for goods sold during the month prior to the pay-day on which settlement was made. The arrangement was that the account should run from pay-day to pay-day, and, when the account had thus run a month, an acceptance was to be given for it, running from 30 to 90 days. It is claimed that it was a question for the jury to determine whether the arrangement so claimed to have been made was ever made. We find nothing in the record in any wise contradicting this claim. The fact is not in dispute that on June 21, 1895, the plaintiff stopped selling goods to the association, and that acceptances were made for the amount then remaining unpaid. That this was known to the directors is not in dispute; and it is not shown by the record that these acceptances were taken as payment. The suits upon which the judgments before the justice were rendered were brought for the goods, wares, and merchandise sold.

There is but one other question raised which we deem necessary to discuss. Counsel for defendant asked the court to charge the jury: “A stockholder can be held liable to the amount of his capital stock in the association, and no more. Therefore, if you find from the evidence that the defendant had fully paid his stock, he has no other liability, and you should find for him.” This was refused. The defendant held two shares, and the court directed the jury to find for the plaintiff the sum of $20. The claim is, therefore, that, this stock having been fully paid, no further liability attached. This statute (section 6 of chapter 116) as to the liability of stockholders cannot have the interpretation contended for. The statute means that each stockholder shall be liable, after execution returned unsatisfied against the association, for goods, wares, and merchandise purchased, to the amount of the capital stock held by him, and no more. Under this statute, the stockholders and directors are jointly and severally liable for all debts for labor performed for the corporation; while for debts for goods, etc., they are each liable only to the amount of the capital stock held by each. This has no reference to the moneys arising from the capital stock paid in, only as fixing the extent of the liability. The moneys paid for the stock become a portion of the corporate property, and it would be absurd to say that it was these very moneys for which each stockholder might be liable after execution returned unsatisfied against the corporation. What the statute means is that each stockholder shall be liable for goods, etc., over and above the stock held, to an amount equal thereto. This principle was settled in Pettibone v. McGraw, 6 Mich. 440, and the same reasoning applies to the present case.

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

The other Justices concurred.


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    KIRKPATRICK v. COSTO.
    Corporations — Liability op Stockholders.
    Case ruled by Kirkpatrick v. Bessalo, ante, 657.

    Case made from Houghton; Haire, J., presiding.
    Submitted April 8, 1898.
    Decided April 19, 1898.
    Proceedings by Allen Kirkpatrick against Joseph Costo under 1 How. Stat. § 4886 et seq., to enforce the individual liability of defendant for goods sold to a corporation in whieh he was a stockholder. Plaintiff had judgment, and defendant assigns error.
    Affirmed.

      A. T. Streeter, for appellant.

      Dunstaii & Hanchette, for appellee.
   Long, J.

This case was heard with that of Kirkpatrick v. Bessalo, ante, 657. The questions there discussed and decided are applicable to the present. The question of the extent of the liability of a stockholder in the association is more fully argued in the present case, but, as we have examined the briefs in the present case in connection with the Bessalo Case, we shall not discuss the question here. The present case was heard before the court without a jury, and a judgment found against the defendant for $10; he holding one share of stock. The case grows out of the same judgments as in the Bessalo Case. We find no error in the record, and the judgment is affirmed.

The other Justices concurred.


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    HOUGH v. AUDITOR GENERAL.
    Taxes — Sale or Land — Vacation.
    A sale of land for State and county taxes will be set aside at the instance of a mortgagee thereof, on payment by him of the amount of such taxes, with interest and charges, where he attempted to pay to the city treasurer, within the time prescribed by law. all taxes standing against the land, and failed to pay the State and county taxes because he was misled by that officer into a belief that the amount paid by him included all of the taxes; and this even though the roll containing the State and county taxes had not yet been received by the treasurer.
    Appeal from Ingham; Person, J.
    Submitted April 6, 1898.
    Decided April 19, 1898.
    Petition by Carrie Mansfield Hough against the auditor general and G. Burton Harris to set aside a tax sale. Prom a decree for petitioner, defendant Harris ■ appeals.
    Affirmed.

      Moore & Qoff {Edtoard Cahill, of counsel), for petitioner.

      Jason E. Nichols, for appellant.
   Long, J.

This is a proceeding upon a petition filed to set aside a decree of the circuit court, in chancery, of Ingham county, rendered in a tax proceeding, so far as it affects the lands of petitioner, and to decree a release of record of all claims of defendant Harris under a deed made to him by the auditor general.

The lands are situate in the First ward of the city of Lansing. In 1886 D. W. Van Auken was the owner, and that year gave a mortgage thereon to Betsey Mansfield. This mortgage was foreclosed, and sale made February 11, 1893, to Betsey Mansfield. She came into possession of the property in February, 1894, and died February 10, 1895, leaving a last will, and the parcel in controversy was deeded to petitioner. The assessment roll and tax roll of the First ward of the city of Lansing for the year 1892 showed that the land was assessed to the owner at $3,700. The warrant to the tax roll was dated December 1, 1892. No tax was assessed upon the property for that year to the mortgagee. Mr. William A. Moore, of Detroit, the agent and attorney for Betsey Mansfield, after he had advertised the Van Auken mortgage for foreclosure, wrote to E. R. Merrifield, at Lansing, in the latter part of 1892, requesting him to ascertain if there were any taxes unpaid on the Van Auken property; that he wished to pay them, and include them in the sale. Mr. Merrifield being sick, his son went to the city treasurer’s office, and made inquiry as to the amount of the taxes, on December 1st. He wrote Mr. Moore on that day, as follows: “The city treasurer has just informed me that the taxes on the Van Auken property must be paid by Saturday, December 3d. The amount of the same is $70.20. Perhaps you had better send me a check, and I will pay them, and send receipt to you.” The check was sent the next day, and on that day, December 2, 1892, Mr. Merrifield went to the city treasurer, and paid the taxes, and received a receipt therefor. This was for the taxes for the year 1892. On December 5, 1892, Mr. Moore also received a receipt from the county treasurer for the taxes for the year 1891. When Mr. Merrifield paid the taxes for the year 1892, on December 2d, the city treasurer did not say anything as to there being any other taxes due at that time.

It appears that all taxes in the city of Lansing, except the State and county taxes, are paid upon a roll made during the month of July. These had not been paid, and it was this part only that the city treasurer included in his statement to Mr. Merrifield as due and unpaid. The State and county taxes were not included in the statement. Under the city charter, the assessor is required to deliver the tax roll, with his warrant attached, to the city treasurer, at the time prescribed by law for the delivery of the township rolls to the township treasurer; and that time is fixed by the general law as “on or before the 1st day of December.” It appears, however, that, at the time Mr. Merrifield paid these taxes for the year 1892, the tax roll had not been placed in the hands of the city treasurer, and the treasurer knew that the State and county taxes for that year were not included in the statement; yet he said nothing to Merrifield about those taxes, though he knew he should have had the roll on the day before. Mr. Merrifield testified that when he went to the city treasurer’s office, on December 2d, he stated to the treasurer that he wanted to pay the taxes on the Van Auken property. The lands were returned for the State and county taxes for 1892, and sold, and bid in by defendant Harris, and in 1896 a deed given therefor to him by the auditor general. Upon the discovery of the fact that the lands had been deeded, Mr. Moore offered to pay to Mr. Harris the sum of $100 for a release of his claim, which was refused.

On the hearing in the court below, the court decreed that the sale be set aside, on condition that petitioner pay the unpaid taxes for 1892, with interest and charges to date of decree. The court below, in a written opinion, found that Mr. Moore in good faith intended and attempted to pay all taxes standing against the land on December 1, 1892, and that he was deceived and misled by the statement of the city treasurer as to the State and county taxes. We think this conclusion is supported by the facts and circumstances shown by this record. Under such facts the mortgagee did all that was required of her. The case comes within the ruling of this court in Hand v. Auditor General, 112 Mich. 597. See, also, Forrest v. Henry, 33 Minn. 434.

The decree below must be affirmed, with costs in favor of petitioner.

The other Justices concurred.


author: Per Curiam.

text:
    VISSCHER v. OTTAWA CIRCUIT JUDGE.
    Taxes —Sale of Delinquent Lands — Notice —Publioation in Foreign Language.
    Act No. 162, Pub. Acts 1895, providing for the publication of the petition and order of hearing in proceedings for the sale of lands' delinquent for taxes, contemplates a publication in English, in a newspaper printed in the English language; and anything less than that is insufficient to confer jurisdiction upon the court.

      Mandamus by Arend Visscher, prosecuting attorney of Ottawa county, to compel Philip Padgham, circuit judge of said county, to vacate an order dismissing the petition of the auditor general for the sale of lands delinquent for the taxes of 1895.
    Submitted April 19, 1898.
    Writ denied April 20, 1898.

      Arend Visscher, in pro. per.

      Charles JS. Soule, for respondent.
   Per Curiam.

The auditor general filed his petition in the circuit court for the county of Ottawa, in chancery, for the sale of lands delinquent for taxes for the year 1895. The same came on to be heard upon objections filed by certain landowners, and the court entered an order dismissing the petition, and denying the decree prayed for. The prosecuting attorney for the county applies for the writ of mandamus to compel the circuit judge to vacate this order, and grant the decree. Upon denying the petition, the learned circuit judge filed a written opinion, of which the following are the material portions :

“The respondents further objected to any decree or sale of any lands for taxes in the tax record before the court, for the reason that the court has no jurisdiction to render any decree for the sale of lands for taxes as contained in the said tax record. The main reason relied upon to show that this court obtained no jurisdiction to decree sale of any of these lands in said tax record is that the auditor general’s petition, and the order of the court thereon made, were not published as required by law, the same having been in De Grondwet, a newspaper published in the Holland language, and not in the English language. It is contended that the law contemplates publications of this nature in the English language only.
“The requirement of the tax law, being section 66, Act No. 206, Pub. Acts 1893, as amended, is as follows: 1 The auditor general shall cause a copy of said order and a copy of said petition to be published at least once in each week for four successive weeks next prior to the time fixed for the hearing thereof, in some newspaper published and circulating in the county where such petition is filed, to be selected by the auditor general. Said order and petition shall both be published in the same newspaper, the order immediately preceding the petition. * * * The cost of such publication shall be paid by the State on the warrant of the auditor general, not exceeding forty cents for each parcel of land advertised. * * * The auditor general shall not pay for any such publication until satisfied that it has been made according to law. The publication of the order and petition aforesaid shall be equivalent to a personal service of notice on all persons who are interested in the lands specified in such petition, of the filing thereof, of all proceedings thereon, and of the sale of the lands under the decree, and shall give the court jurisdiction to hear such petition, determine all questions arising thereon, and to decree a sale of such lands for the payment of all taxes, interest, and charges thereon.’
“By the law of this State, all legal proceedings must be in the English language.' 2 How. Stat. § 7251.
“It will be noticed that the tax law (section 66, above quoted from) requires the auditor general to select the newspaper in which such publication is had. By referring to the files in the case, I find the following certificate: ‘I hereby certify that on the 1st day of September, 1897,1 designated De Grondwet, published at Holland, Michigan, in the county of Ottawa, a newspaper published and circulating in said county of Ottawa, as the newspaper in which the “ order and petition” in the above-entitled cause are to be published, together with the descriptions of the lands assessed in said year or years (which said lands are delinquent for the taxes of said year or years), and that such designation was accepted by the publisher of the said De Grondwet on the 3d day of September, 1897.
“ ‘ Roscoe D. Dix, Auditor General.
“ ‘Dated at Lansing, this 15th day of September, 1897.’
“This was the only paper in which this publication .was had in Ottawa county. The affidavit of the publisher on file shows this, and it is conceded by the prosecuting attorney, who, appears for the State, that De Grondwet is published entirely in the Holland language, except this petition and order, and the lands therein described. It is urged with much force by the objectors to these proceedings that a notice published in this newspaper, circulating as it does among the Holland people, would not be read by the English-speaking people to the extent it would otherwise be if printed in an English newspaper. Many of the Holland people could not read it, and many English-speaking people would not see it, because not in an English paper. The real object of the publication being to acquaint the people of the proceedings about to be taken, and the great mass of our people speaking and reading only the English language, the object of the law is defeated by its publication in a Holland newspaper. If the publication of these tax sales had been printed in the Holland language, then the Holland readers, at least, would have been apprised of the proceedings proposed to be taken; but the publication in English in a Holland paper prevented the Hollander from reading it, and, the newspaper itself being in the Holland tongue, prevented it being read by the English-speaking people, as they might not take the paper. The question is not new in this State. It has been before our Supreme Court in two cases at least, where the question has been ruled against such a publication, and it was held substantially that such publication was not in conformity to the statutes of the State. Schaale v. Wasey, 70 Mich. 414; Auditor General v. Hutchinson, 113 Mich. 245. I think these cases dispose of this case, and that this court gets no jurisdiction to render a decree for the sale of delinquent tax lands for the May sales of 1898.
“This question might be disposed of by simply sustaining the objections made by these two objectors in this matter, and by letting the balance of the descriptions be sold, where no specific objections have been filed; but I think that, in justice to the people of Ottawa county, the whole list should be set aside, for, if the sales should be made, and purchasers should pay their money for different parcels, such sales would convey no title to the lands, and the result would be that each purchaser would eventually demand his money back from the State, which would be paid to him, with interest at the rate of 8 per cent, per annum from the time of the sale. All this would be charged back to the county by the auditor general, to cover the portion originally assessed for county and township taxes and the interest thereon. The sale would then have to be again gone through with, and this extra and unnecessary expense saddled onto the county. The auditor general can make another petition, and have it properly published, and these taxes collected as the law requires.
“The original petition filed in this case will be dismissed, without prejudice, the order vacated, and a decree will be denied.”

We think the decision of the circuit judge upon the facts found by him was correct, and the writ will be denied.


author: Grant, C. J.

text:
    HOLTON v. HOLTON.

    1. Divorce — Collusion—Evidence in Former Suit.
    It being the duty of courts to see that no divorce is obtained by collusion between the parties, the circuit judge may, in a suit in which defendant fails to appear, order in evidence, and consider, the pleadings and proofs in a former suit between the same parties, in which a decree was denied.
    2. Appeal — Record—Omitted Evidence.
    Affidavits claimed to have been introduced in the trial court cannot be considered on appeal where they are not made a part of the record.

      Appeal from Gratiot; Daboll, J.
    Submitted April 5, 1898.
    Decided May 6, 1898.
    Bill by Thomas Holton against Mary Holton for a divorce. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Newel Smith, for complainant.

      Edwin H. Lyon, for defendant.

       Rehearing denied September 20, 1898.

   Grant, C. J.

Complainant filed a bill for divoi’ce, on the ground of desertion. Defendant did not appear, and an order pro confesso was entered. Proofs were taken in open court, and consisted of the testimony of complainant and one Arnold, a neighbor. Complainant testified that they were married December 3, 1894; that they lived together seven or eight weeks, when she left him; that she had never returned to live with him; that she left of her own accord; that, immediately after, he requested her to return, and she refused. Arnold testified that he knew about the time she left; that she had never been back to his knowledge; and that he did not know any of the circumstances surrounding her leaving, or why sheleft. After defendant left her husband (but when does not appear), she filed a bill for divorce against him, charging extreme cruelty. He answered, and claimed the benefit of a cross-bill. Proofs were taken, and both bills dismissed. The presiding judge, Daboll, heard and decided that case. He ordered in evidence, and considered, the pleadings and proofs in that case in deciding this one, and dismissed the bill. Complainant appeals.

1. It is insisted that the court had no right to order in evidence, and to take into consideration, the records in the other case. We think that the court was justified in so doing. The public are interested in divorce proceedings. It is the duty of courts to see that there is no collusion between the parties, and to refuse a divorce when satisfied that there is. It is within the power of the court, on its own motion, to order other witnesses than those produced by the parties to be subpoenaed and examined, in order that it may ascertain the truth or falsity of the charges upon which a divorce is asked. Complainant had not the absolute right to have his case submitted on such testimony as he saw fit to introduce. Complainant had carefully avoided any reference to the circumstances under which his wife left him. He had fixed the time of • her desertion to commence on the occasion when she had charged him with extreme cruelty, for which she claimed the right to a divorce in the former suit. In that suit both testified, and their testimony is in the present record. They had a quarrel, in which he assaulted her, and struck her with such force as to break her arm. The judge evidently found that there was blame on the part of both, for he granted a divorce to neither. From the testimony of both parties given upon that hearing, we think the court was correct in holding that she was not guilty of desertion.

2. Complaint is made that, while all the records of the former suit were introduced, the court below, in making up the record for this court, did not put in all the testimony, but left out certain affidavits alleged in the brief to have been made at the time of the trial of the former case. Counsel has furnished copies of these affidavits. They appear'to be ex parte, are not certified to be copies of originals, and there is nothing to indicate that they were introduced or received in evidence in the former case, or that complainant sought to have them, or any more of the testimony, inserted in the record. If the judge refused to insert material testimony, complainant should have taken the proper steps to have it inserted in the settlement of the case. We cannot consider them, as they are not a part of the record.

Decree affirmed, with costs.

The other Justices concurred.


text:
    SEVENTH-DAY ADVENTIST PUBLISHING ASSOCIATION v. BOARD OF STATE AUDITORS.
    State Printing — Award oe Contract — Lowest Bidder.
    The board of state auditors, in determining who is the lowest responsible bidder for the state printing, may take into consideration the fact that the doing of the work away from the capital would entail additional expense to the State.

      Mandamus by the Seventh-Day Adventist Publishing Association to compel the board of state auditors to award to relator the contract for the state printing.
    Submitted April 5,1898.
    Writ denied May 6, 1898.

      O. 8. Clark (Jesse Arthur, of counsel), for relator. -

      Fred A. Maynard, Attorney General (Cahill & Ostrander, of counsel), for respondent.
   Hooker, J.

The relator is owner of an extensive printing and binding establishment at Battle Creek. It has petitioned this court for a mandamus to compel the board of state auditors to execute a contract for the state printing with the relator, upon the claim that in a recent competition it was the lowest responsible bidder for such work, and was found to be such by the respondent. These claims are denied by the answer, which alleges that relator was not the lowest responsible bidder, and that the board so decided. The answer admits that the bid of relator for the work was $3,759.43 less in amount than that of the Robert Smith Printing Company, its competitor, but that relator’s bid contemplated that the work would be done in Battle Creek, while that of the Robert Smith Printing Company was made with the expectation that the same should be done in Lansing; and the respondent alleges that, if the work should be done in Battle Creek, it would not only be attended with inconvenience and delay, but also with, expenses to the State in the way of transportation, establishing a warehouse for paper at Battle Creek, and providing a custodian of the same, proof-reading by different persons, representing each of the several departments, etc., which would increase the cost of printing to the State more than the difference between the bids. We must take this answer to be true, as no issue has been made upon it; and, if we do, we must find that the relator was not the lowest bidder. We cannot assent to the proposition that the contract should be awarded to the bidder who makes the lowest price per thousand ems and per token, regardless of the place where the work is to be done, and the expenses attending upon the transportation to and from another city, and the other expenses alleged' to be incident to work done at a distance from the capital.

It is argued that the board had no right to assume that relator did not intend to do such work at Lansing. The notice and proposal are not in the record, but the petition describes in detail the facilities of the relator at Battle Creek, and its letter contained in the brief states the plan to he to have as much of the work as is necessary done at Lansing, from which the inference is natural that all was not expected to he done there. This letter, however, does not seem to be within the record.

Counsel contend that the law contemplates that the work shall he done at the capital, and that the hoard may properly disregard any bid which involves the taking of the work elsewhere; but we find it unnecessary to pass upon this question.

The writ is denied.

The other Justices concurred.


text:
    JORDAN v. NEWTON.
    Railroad-Aid Note — Consideration—Condition Precedent.
    A promissory note reciting that it is given in consideration of the construction of a certain railroad, and the completion and operation of the same by a specified date, makes the provision as to time a condition iirecedent to liability on the note, a nonperformance of which renders the note void.
    Appeal from Berrien; Coolidge, J.
    Submitted April 5, 1898.
    Decided May 6, 1898.
    Bill by Francis Jordan, trustee, against John C. Newton and others, as assignees of certain railroad-aid notes executed by Abel W. Wells and others, impleaded in the suit, to determine as to the ownership of the notes. Complainant died pending decree, and Orville O. Jordan, his executor, was substituted as complainant in his stead. From a decree declaring the notes invalid, defendant assignees appeal.
    Affirmed.

      N. A. Hamilton, for complainant.

      Edward Bacon (Cahill & Ostrander, of counsel), for appealing defendants.

      Lawrence G. Eyfe, for other defendants.
   Moore, J.

The circuit judge filed a written opinion in this case, which so clearly states the questions involved that I quote as much from it as is necessary to an understanding of the case:

“The bill of complaint was filed by Francis Jordan in his lifetime as a bill of interpleader, setting forth that on September 8, 1888, there was deposited with him, as a trustee and in escrow, a package of 84 notes executed by different parties, and made payable to the treasurer of the Indiana & Lake Michigan Railway; that said notes were identical with each other in the time and conditions expressed, except the words expressing the amounts payable; and that such notes were executed shortly before such deposit. A specimen copy of such notes reads as follows:
“‘St. Joseph, Berrien County, Mich.,-, 1888.
‘“In consideration of the construction of a standard-gauge railroad by the Indiana & Lake Michigan Railway Company from South Bend, Indiana, to St. Joseph, Michigan, and making said St. Joseph the terminus of said Indiana & Lake Michigan Railway, and the completion and operation of said railroad by November 1, 1889, I promise to pay to the treasurer of said road, or bearer, the sum of-, in 30 days after said road is constructed as aforesaid; this contract to be held by the president of the Union Banking Company until the construction of said road as above.--.’
‘ ‘ The bill further alleges that the said Francis Jordan delivered to John Higman, at the time of said deposit of said notes, a receipt, which reads as follows:
“ ‘St. Joseph, Mich., September 8, 1888.
“ ‘ I have received this day from Fred Carlisle, per committee, consisting of Dr. L. I. McLin, Warren Ballengee, and John Higman, Jr., the following railroad notes, said notes payable to Ind. & Lake Mich. R. R. Company upon completion of said road as per contract. ’
“Here follows list of names with amounts opposite. At the end of the list of names is the following:
“ ‘St. Joseph, Mich., September 8, 1888.
“ ‘I hereby certify that I have received this day from the parties above named, in trust for the parties interested, exclusively at their own risk.
“ ‘Union Banking Co.’
“The bill further alleges that in November, 1889, a large portion of the signers of said notes demanded of the complainant the surrender to them óf said notes, on the ground that certain conditions precedent therein contained had not been performed by the Indiana & Lake Michigan Railway, and that the consideration thereof had failed; that he refused to deliver them to such signers; that subsequently Milton Wood, John C. Newton, Daniel H. Newton, and John W. Welch demanded of him, the complainant, the surrender of such notes to them, claiming to be the assignees of said Indiana & Lake Michigan Railway, and that they were legally entitled to the possession of said notes; that complainant refused to deliver said notes, or any of them, to the parties so demanding; that subsequently said Wood, John C. Newton, Daniel H. Newton, and Welch instituted an action of trover against him in the circuit court for the county of Berrien, claiming damages for the conversion of said notes, which action is still pending; that he asks the intervention of a court of equity to determine what parties ai'e entitled to the possession of said notes; that the various parties may be called upon to defend their respective claims, and complainant be released from further expense and trouble of litigation in the matter. All the parties interested, together with the Indiana & Lake Michigan Railway, are made parties to the bill, and all have appeared and answered except said railway, and the case has been heard in open court on pleadings and proofs. The defendants Wood and others, who claim to be the assignees of said railway, in their answer claim that the conditions of the notes have been substantially complied with, and that the signers of the notes, for various reasons, are estopped in a court of equity from asserting a failure of consideration, or that the conditions expressed in the notes have not been complied with. The signers of the notes, in answering, claim that the conditions set forth in the notes were conditions precedent; that they were never complied with; and that the consideration has wholly failed. ”

The circuit judge then made further findings of fact,, which, because of our view of the law, it is unnecessary to state. Among other things, he found:

“ By the condition of the notes, the road was to be constructed and in operation by November 1, 1889. It was not constructed until December 19, 1889. No train passed over that road until that date, and it is not contended by anybody that the road was actually constructed till that date. It was not in operation till August, 1890. No trains ran over it, except a few construction trains, and a few trains conveying officers of the road for purposes of inspection, till that date. No business of transportation which could be of any utility to the citizens of St. Joseph was done till August, 1890.”

This finding was fully justified by the record. The circuit judge held that the completion and operation of the road by November 1, 1889, was a condition precedent, and made a decree adjudging the notes in controversy null and void, and directing their surrender to the makers, and granted costs to the complainant, and to the defendants who are appellees here.

A great many questions were argued before the circuit judge, and were passed upon by him, and they are very ably argued here by eminent counsel. A reading of the notes indicates to our minds very clearly that, when they were given, it was expected that, before the makers should become liable, the road must not only be constructed, but it must be completed and in operation by November 1, 1889. It is now urged that time is not of the essence of the contract; that what the makers of the notes wanted was the road, and time is immaterial; and as the road is now built, and more than 30 days have elapsed, they are now liable. It is also said that equity does not deem time to be of the essence of the contract. In relation t9 the last statement, it may be said that, while this is a suit in equity, the complainant has no interest in the result, except to have it decided to whom he shall deliver the notes. The controversy is between the makers of the notes and those who seek to enforce the payment. The real question is, Can they be collected at law ? In a discussion of this case, it must not be forgotten that there is no promise on the part of the railroad company that it will construct the road at all. It also ought not to be overlooked that, when the road is constructed, it continues to be the property of the railroad, and no part of it becomes the property of the makers of the aid notes. They had a right to put into these notes such conditions precedent as they desired; and, where they' have made the condition clear and unambiguous, before they can be held liable upon the notes the condition precedent must be performed.

If the road, by the terms of this agreement, is not to be completed and in operation by November 1, 1889, no time is fixed for its completion and operation. It is incredible that the makers of these notes intended to become liable for their payment, without having some time fixed when the road should be completed. They fixed a time in the notes. This time was a condition precedent, and, before the makers of the notes can be held liable, it must be shown that the conditions have been performed. Brown v. Dibble's Estate, 65 Mich. 520; Sickels v. Anderson, 63 Mich. 421; Port Huron, etc., R. Co. v. Richards, 90 Mich. 577; Thornton v. Railroad Co., 84 Ala. 109 (5 Am. St. Rep. 337); Slater v. Emerson, 19 How. 224; Jones v. U. S., 96 U. S. 24; Lowber v. Bangs, 2 Wall. 728; Johnson v. Lyon, 75 Mich. 477; Loud v. Pomona, etc., Water Co., 153 U. S. 564. The following, in addition to the cases cited above, are cases in this State involving litigation in relation to notes given in contemplation of the construction of railroads: Michigan, etc., R. Co. v. Bacon, 33 Mich. 466; Tower v. Railroad Co., 34 Mich. 328; Stowell v. Stowell, 45 Mich. 364; Pontiac, etc., R. Co. v. King, 68 Mich. 111; Gardner v. Walsh, 95 Mich. 505; Gardner v. Burch, 101 Mich. 261. In none of them is it held that the makers of the notes are liable where the conditions are unperformed which the makers of the notes have in unambiguous language incorporated in them.

The decree is affirmed. The complainant and appellee defendants will recover costs, including but one solicitor’s fee, from the appellant defendants.

The other Justices concurred/