text:
    FRISBEE v. STEWART.
    Appeal — Review—Conflicting Evidenoe.
    Where the testimony on a bill to cancel an assignment of notes and mortgages is taken in open court, a finding by the presiding judge -on disputed questions of fact, involving the capacity of complainant to transact business and the genuineness of her alleged signature, is entitled to great weight on. appeal.
    Appeal from Clinton; Daboll, J.
    Submitted November 15, 1899.
    Decided December 30, 1899.
    Bill by Amy E. Frisbee against Matthias L. Stewart, Charles D. Stewart, and L. Irving Stewart, copartners as M. L. Stewart & Co., to cancel an assignment of certain notes and mortgages. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Almond G. Shepard and Edwin H. Lyon, for complainant.

      Lyon & Hadsall, for defendants.
   Moore, J.

The bill was filed in this case to cancel an assignment of two notes and mortgages purporting to. have been made to defendants by the complainant to secure the payment of her note for $2,000. She claims she never executed the assignment and note. The testimony was taken in open court. The circuit judge who heard the testimony filed the following written opinion in the case:

“In September, 1897, one Charles Farmer, of Ovid, Clinton county, applied to Mrs. Frisbee, the complainant, for her indorsement of a promissory note, to assist him in raising money. She was willing to give it, and did, and he took it to the bank of the defendants at Owosso, and applied for a loan. He was told there by the defendants that they did not wish to loan the money on it as it then was, but that, if the complainant wanted to borrow the money direct on her own note, with proper collateral, they would make the loan direct to her. He returned to Mrs. Frisbee, and she delivered to him a large number of notes, mostly secured by mortgages, and they finally selected the two notes and mortgages in issue here, and, taking them collateral to the note made by her under this arrangement, advanced to her $2,000, the same being delivered to Charles Farmer for her. This money, by the arrangement made between Farmer and complainant, he retained, and used for his own benefit. She now files this bill, and asks that the notes and mortgages be returned to her, and the assignment declared void, for two reasons: (1) Because she says she was infirm and feeble in mind, and did not have capacity to do business and deliver the notes and mortgages; and (2) because she never signed the assignment and acknowledgment of the assignment of the mortgages. Defendants’ claim is that they acted in good faith, loaned the money direct to the complainant, and had no notice that there was anything wrong, or that there was any question about the competency of the complainant.
‘ ‘ I think the contention of the defendants must be sustained, and the bill dismissed. I am satisfied that the note was given, the assignment made, and the acknowledgment taken, as appears by the papers. It is true that, when the attention of Mr. Faxon, the notary, was first called to the matter, he did not remember the transaction, and he even made an affidavit to that effect; but, the paper being shown him, he at pnce recognized his signature, and, after some thought, recalled the circumstances of the transaction, and now swears positively that he took the acknowledgment, and gives the time and place of the occurrence. Mr. Faxon is a reputable business man of Ovid, the postmaster, and well known to all the parties and to the court. I cannot think for a moment that he is not telling the truth, and must find that the note was signed, the mortgages assigned, and the assignment acknowledged, as they appear by the papers, and as claimed by the defendants.
“The question of the competency of the complainant is in the case, but, in my judgment, not so important as the other question. She certainly is not an imbecile. She is the widow of a gentleman of great business ability and shrewdness, and since his death, and for some years, has conducted her own affairs and managed her own estate, which is a large one. True, she may at times have had advice from her nephew and niece, who are with her most of the time, but there is no evidence that the management of the business and its control has ever been transferred to them, and the evidence discloses that the large number of notes and other papers were in her possession, and not in theirs, and that there has been no attempt to take the control of the business from her, or have a trustee appointed ; and this was true up to the time of the trial of this case. I think she has not the strength of. mind that she once had, but she seemed to comprehend what was being done in court, and to understand the issues involved, although somewhat feeble in health at the time of the trial; and it further appeared that since this transaction, and but a short time before the trial, she had given a deed of property near Chicago, and the solicitor in this case had taken and delivered it to the parties, who had never seen Mrs. Frisbee, and by his act had, it seems to me, certified to those parties that she was competent to transact that business.’ Certainly it would not do to say that, if it turned out to be a good bargain, she was competent, and, if a poor one, she might move to set it aside. I think the defendants are entitled to the benefit of the rule of law decided or announced in this class of cases in Shoulters v. Allen, 51 Mich. 529. There the court says:
“ ‘ It is not necessary, however, to find that Allen, when the note was given, had capacity sufficient for the transaction of ordinary business. It is enough to sustain the note that plaintiff dealt with him in good faith, and without notice of want of capacity, in a transaction not calculated to put him on his guard.’
“In this case Mr..Farmer for a long time had been a leading business man at Ovid. He was, it is true, at this time in failing circumstances, and this was known to the complainant, at .least. Mrs. Frisbee was known by reputation to the bank as a woman in charge of and managing a large estate. No question had ever arisen, to their knowledge, as to her competency to properly manage it. Mr. Faxon was known to them as a business man, and the postmaster at Ovid. His certificate upon the assignment carried with it the presumption of competency and fair dealing, or at least understanding of the transaction. It seems clear to me that the defendants had a right to rely upon all this, and to advance the money, as they did, in good faith, upon the papers presented to them, and, in any view of the case, are entitled to protection.
“The bill will be dismissed, with costs to the defendants.”

The questions involved are purely questions of fact. Their discussion would not be profitable to any one. The record is a very long one. The testimony is conflicting. We have the original papers before us, and also signatures for comparison, which are conceded to be genuine. While the case is not free from doubt, and some of the witnesses do not appear in an enviable position, we think the preponderance of proof is not in favor of the complainant. This, taken in connection with the fact that the witnesses were examined before the circuit judge, giving him a much better'opportunity to observe the manner and appearance of the witnesses, and to judge of the credit to be given them, and to weigh the evidence, than we can have, leads us to affirm the decree of the court below, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    POTTER v. MARTIN.
    1. Bankruptcy — Petition—Amendment—Operation op Assignment.
    Where a petition in bankruptcy was held insufficient, but, on amendment, was made the foundation of the proceedings, the assignment related back to the date of the filing of the original petition, and vested the assignee with the title to property then held by the bankrupt, as against a transferee from the bankrupt prior to the filing of the amended petition.
    2. Same — Sale by Assignee — Time.
    A sale of property by an assignee in bankruptcy is not invalid because not made until six years after the order of sale.
    3. Same — Confirmation—Necessity for.
    Whether confirmation of a sale by an assignee in bankruptcy is essential to its validity, — quaere; the court inclining to the view that it is not.
    4. Same —Pendency of Proceedings —Jurisdiction of Property.
    Where the record in bankruptcy proceedings in a federal court showed that they were still pending on an application for the confirmation of the sale of the assigned property, a grantee of the'property from the bankrupt could not assert title against the assignee’s grantee in a suit to quiet title in a state court, since, even if the latter acquired no title, the property was in the control of the federal court.
    5. Same — Ministerial Officer — Deeds—Limitations.
    An assignee in bankruptcy, appointed by a United States district court for Michigan, is a ‘‘ministerial officer of a court of competent jurisdiction within this State,” within 3 How. Stat. § 8698, subd. 1, barring a right of entry, after the lapse of five years, against one occupying land under a deed from such an officer.
    6. Same — Quieting Title — Pleading.
    Where, on a bill to quiet title against a grantee from an assignee in bankruptcy, the answer alleged facts showing that defendant had been in possession for five years, it was sufficient to raise the question of such limitation, though it did not in terms plead 3 How. Stat. § 8698, subd. 1, by which such limitation is imposed.

      Appeal from Berrien; Coolidge, J.
    Submitted November 15, 1899.
    Decided December 30, 1899.
    Bill by Sophronia Potter against John P. Martin and others to quiet title. Prom a decree for defendants upon 4heir cross-bill, complainant appeals.
    Affirmed.

      M. L. Howell and Edward Bacon, for complainant.

      N. A. Hamilton, for defendants.
   Hooker, J.

This is a bill to quiet title to land. The parties complainant and defendant derive title to the locus in quo from a common source, viz., Benjamin C. Hoyt, complainant’s father. The defendants’ title is prior in point of time, being derived through an assignee in bankruptcy, under federal law, by deed dated January 10, 1881. The complainant’s title consists of a quitclaim deed from her father, dated April 16, 1891; and this deed undoubtedly conveyed to her whatever interest he had at that time, and no more. Her right to relief must therefore depend on — First, proof of her possession when the bill was filed; second, the invalidity of the defendants’ alleged title. The learned circuit judge who heard the case decided against her upon both points. In the matter of possession, we think that she has failed to show the requisite occupancy. The defendants fenced the lot, and used it for such purposes as vacant lots are used for several years. She sought to show an interruption of this, and that she took and retained possession for a time before filing her bill. "We are of the opinion that her acts amounted to no more than a trespass, and that she cannot be said to have been in possession.

Benjamin C. Hoyt and his son were made defendants in bankruptcy proceedings upon .the application of one Whittlesey, a creditor, filed October 10, 1873. Benjamin O. Hoyt, the survivor, was duly adjudicated bankrupt on June 1, 1874, and this was recognized by the Supreme Court of the United States in Chapman v. Brewer, 114 U. S. 158. The land in controversy was deeded to the defendants’ grantor by the assignee under an order of the court. Three points are made against the validity of this deed:

1. That the assignee did not acquire title, for the reason that, before the court acquired jurisdiction of the lands, Hoyt deeded them to one Collins.

2. That the sale and deed were made by the assignee some six years after the order of sale.

3. That the sale was never confirmed.

We will examine these claims in their order.

Hoyt and his son were in partnership, and, finding themselves in failing circumstances, had negotiations with some of their creditors, with a view to avoiding proceedings in a court of bankruptcy. Whittlesey, one of their creditors, appears to have preferred judicial proceedings; for on October 10,1873, he filed his petition in bankruptcy in the district court at Grand Rapids. Subsequently, and on January 20, 1874, Hoyt deeded the land to Collins in trust, to be applied to the payment of debts in conformity to the mode pointed out by the federal bankruptcy law. Soon after, and on January 29, 1874, another creditor, Moynahan, filed another petition in bankruptcy. Exceptions were filed on behalf of Hoyt & Son to the Whittlesey petition. The date that these were filed does not appear, but it does appear that on February 24, 1874, it was adjudicated that the exceptions were well taken, and 15 days were given to the petitioner within which to amend the petition; and it was further ordered that whereas Hannah Moynahan had filed a further petition of like character, to which the respondents had appeared and filed denial, and demanded trial by jury, the case should be adjourned into term for hearing. March 5, 1874, Whittlesey filed an amended petition. June 1, 1874, Enoch C. Hoyt, the son and partner, having died, and his death having been suggested upon the record, Benjamin C. Hoyt withdrew his denial, and there was an adjudication in bankruptcy against him, and a reference to the register in bankruptcy. October 1, 1874, the register made the ordinary general assignment to Brewer, the assignee. November 4, 1874, the court made an order of sale. December 5, 1874, Brewer filed an inventory; and on December 10, 1878, a nunc pro tunc order was made, by consent, that the record, which showed that the adjudication was upon the petition of Moynahan, should be changed and made to “ appear, as was the fact, that it was upon the petition of Whittlesey. December 31,1880, Collins made an ordinary quitclaim deed to Brewer, as assignee in bankruptcy, of the property which had been deeded to him in trust. January 5, 1881, Brewer, claiming to act under the order of sale, .sold at public sale, and on January 10th deeded to John Martin, the land in controversy in this suit, and the deed was recorded on January 18,1881. Brewer died in March, 1889.

April 16, 1891, the quitclaim deed was made to complainant. December 18, 1891, Benjamin C. Hoyt filed a petition alleging the previous existence of the partnership; its embarrassment; a meeting of creditors, at which nearly all signed releases, agreeing to make their claims under the deed to Collins, to avoid the loss by bankruptcy proceedings ; the giving of such deed; Whittlesey’s petition, erroneously alleged to have been filed after the Collins deed was made, and the allegation that said petition was void on its face; the removal of Benjamin C. Hoyt to Mississippi in the belief that Collins would be faithful to his trust; that in June, 1889, petitioner returned to Michigan, and had investigated the manner, extent, and result of the disposal of his estate, and that it appeared to- have been sold by Brewer as assignee, and that he executed •and delivered deeds that purport to convey only such title as petitioner had at the time of the assignment in bankruptcy, and that Collins still held title until after said sales and deeds were made, when he conveyed by quitclaim to the assignee; that the Collins deed was considered an- outstanding title by the purchasers, who were some of petitioner’s creditors. It prayed a review of the proceedings, and, in short, such relief as the inquiry might show petitioner entitled to, if it should appear that the petitioner’s estate was under the jurisdiction and control of the court.

On December 15, 1893, John F. Gard was appointed assignee in place of Brewer, deceased. March 12, 1895, an order was filed reciting a petition filed by Gard, assignee in bankruptcy, praying a confirmation of the sales by Brewer, an answer filed by Hoyt, and a replication, and directing proofs to be taken. On March 29, 1898, the clerk of said court, by a certificate, showed that the proceedings were still pending, and said order to take proofs was the last proceeding therein

The first question seems to be answered by the decision of the Supreme Court of the United States in the case cited, which held that “the assignment, when made, related back to October 10, 1873, and vested title in the assignee as of that date,” and “that the adjudication was regular and valid, and refers to and was made on the first petition as amended by the second, and on a proceeding commenced when the first petition was filed.” This decision was upon a bill filed by the assignee against execution creditors, who attached the property before anything was done upon the first Whittlesey petition. The proceedings show that the Whittlesey petition first filed was not treated as void; being amended by leave of court, and made the foundation of the proceedings. Hoyt withdrew his denial, and Collins deeded to the assignee,— an unnecessary act, as the deed to him 'could not stand against the assignee.

We see no reason for saying that the sale by the assignee was invalid because not made at once after the order was made. As late as 1885 the proceedings were treated as valid by the appellate court, and in 1895 an application to confirm was filed, and order of bearing made. No authorities are cited in support of the proposition that mere inaction ousts such a court of its jurisdiction.

The learned circuit judge who heard this cause was of the opinion that no order of confirmation was essential. The case of In re O’Fallon, 2 Dill. 548, is cited as indicative of the existence of the practice of confirming such sales, but it is not clear that the case goes further than to vindicate the power of the court to order a resale for inadequacy of price. Section 4 of the bankruptcy act (18 U. S. Stat. at Large, chap. 390) provides that the court, on application of any party in interest, shall have complete supervisory power over such sales, including the power to set aside the same and to order a resale, etc. This would seem to imply that the sale should stand unless some interested party should move to vacate it. This may have been the practice followed in the O’Fallon Case, as it certainly was in the case of In re Troy Woolen Co., 8 Blatchf. 465. In Re Alden, 16 N. B. B. 39, the question was raised, and the court held that confirmation would not be made, but the purchaser would be left to establish his title when occasion should arise; citing Donnel’s Case, Fed. Cas. No. 3986a. We incline to the view taken by the circuit judge. But, as the record shows that the proceedings are yet pending upon a petition for confirmation, the complainant has no right to assert her title against that of the assignee or his grantee. If the deed did not vest the purchaser with title, the property is still in the control of the federal court. Oliver v. Sanborn, 60 Mich. 356.

If it could be held that the federal court has no longer jurisdiction, another answer to the complainant would he found in defendants’ possession, which, under subdivision 1, § 8698, 3 How. Stat., bars a right of entry, after the lapse of five years, against one occupying under a deed from a ministerial officer of a court of competent jurisdiction within this State. The district court of the United States for the Western district of Michigan is such a court, and an assignee in bankruptcy is such an officer. It is said that the answer does not raise this question. It is true that it does not in terms plead the particular statute, but that is unnecessary. The answer alleges facts which sustain its claim of possession.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    FULLER v. LOCOMOTIVE ENGINEERS’ MUTUAL LIFE & ACCIDENT INSURANCE ASSOCIATION.
    Mutual Benefit Associations — Accident Indemnity — Amputations — Loss of Foot.
    A by-law of a mutual benefit association, providing that any member receiving bodily injuries which alone shall “cause amputation of a limb (whole hand or foot) ” shall be entitled to certain benefits, does not cover the case of an amputation of only a part of a foot, though the foot is rendered useless for the performance of its natural functions.
    Error to St. Clair; Vance, J.
    Submitted November 15, 1899.
    Decided December 30, 1899.

      Assumpsit by William L. Fuller against the Locomotive Engineers’ Mutual Life & Accident Insurance Association on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      John B. Mcllwain, for appellant.

      Phillips & Jenks, for appellee.
   Hooker, J.

The plaintiff was a member of a mutual benefit association, and held a certificate which he claims to entitle him to payment of $3,000 under article 19 of the by-laws, which is as follows :

“Any member, while engaged in any lawful avocation, receiving bodily injuries which alone shall cause amputation of a limb (whole hand or foot), or total and permanent loss of eyesight, he shall receive the full amount of his policy.”

The defendant refuses payment upon the ground that the injury sustained does not bring him within the by-law, for the reason that the injury did not cause amputation of a whole hand or foot. The circuit judge directed a verdict for the defendant, and the plaintiff has appealed.

The record contains diagrams showing the size and shape of the whole left foot and the maimed right foot. They were made by drawing a pencil around them while the plaintiff stood upon a piece of paper. The length of the whole foot is 11 5-16 inches to the end of the great toe, while the amputated foot is exactly inches on a line drawn through the center of the foot, and 7f inches if drawn in the direction of the great toe. It is thus demonstrated that the foot is shortened 3 13-16 inches, which is as nearly one-third as it well could be. This one-third is from the toe, and it leaves two-thirds of the foot. This would leave all of the heel, and substantially all of the hollow of. the foot, and possibly a part of what is called the “ball” of the foot. We do not overlook the statement that the skin of the sole was left longer to lap upward over the end, and perhaps part of the top, of the mutilated foot, but this cannot have lengthened it materially. It is claimed that it would be 1 inch. Counsel claims that the proof shows that all use of the foot is lost, and insists that this brings him within the spirit and meaning of the contract. He contends: First, that the contract should be read as though it said, “Foot or whole hand,” — in other words, that the qualifying adjective, “whole,” should not be applied to “foot;” and, second, that, in any event, the whole foot was amputated when it was so far removed as to be useless in the performance of the natural functions of a foot.

The natural construction of the words would be the same as though the by-law had said, “Whole hand or whole foot.” Furthermore,, the injury insured against is not the amputation of a hand or foot, but a limb; and the words in brackets, “whole hand or foot,” are used as explanatory of what was meant by the word “limb,” i. e., an amputation, not necessarily a whole arm or leg, at the elbow or knee, but any amputation of a limb that should include a whole hand or a whole foot.

We are cited upon the second proposition to some authorities which are said to hold that, if the beneficial use of a member is lost, there may be a recovery. That would be a reasonable construction of a contract of insurance that should insure against the “loss of a hand or foot,” for it might well be said that a foot or hand is lost when it is so impaired as to be of no further use; and that is as far as the authorities have gone. What is meant by the loss of a hand ? Ordinarily the term “loss” is obvious, but when it is considered in the light of surrounding circumstances, viz., an insurance policy that indemnifies against the loss of a hand or an entire hand, it is not unreasonable to hold that the parties understood that any injury to the hand which rendered it useless was a loss of the hand or entire hand. In Sheanon v. Insurance Co., 77 Wis. 618 (9 L. R. A. 685, 20 Am. St. Rep. 151), where “an insurance policy provided that the principal sum should be paid if the insured, from a violent and accidental injury which should be externally visible, should ‘suffer the loss of the entire sight of both eyes, or the loss of two entire hands or two entire feet, or one entire hand and one entire foot,’ the insured was accidentally shot in the back; the bullet penetrating his spine, and producing immediate and total paralysis of the lower part of his body, and entirely destroying the use of both feet. Held, that he had suffered ‘the loss of two entire feet,’ within the meaning of the policy.”

The court said:

“ The question is, Does the policy cover such an injury? The policy covers both death and indemnity; the company agreeing to pay the principal sum if the insured, frpm a violent and accidental injury which shodld be externally visible, should ‘ suffer the loss of the entire sight of both eyes, or the loss of two entire hands or two entire feet, or one entire hand and one entire foot.’ This is the language of the policy, and the question is, What does it mean, or what must be understood by it ? Is its meaning that the insured is not entitled to recover the insurance money unless his legs and feet have been amputated or severed from his body, or does it mean that the injury must have destroyed the entire use of his legs and feet, so that they will perform no function whatever ? The contention of the learned counsel for the defendant is that the clause is to be understood in the former sense, and implies an amputation or physical severance of the feet from the body, and does not include an injury such as paralysis, though such injury actually deprives the insured of all use of his feet and legs. We cannot adopt such a construction of the contract. To our minds, the loss of the hands and feet embraced in the policy is an actual and entire loss of their use as members of the body; and if their use is actually destroyed, so that they will perform no function whatever, then they are lost as hands and feet. In ordinary and popular parlance, when a person is deprived of the use of a limb we say he has lost it. This is the ordinary sense attached to the word when used in such a connection. Now, if the feet and hands cannot be used for the purpose of moving about or walking, or for holding and handling things, they are in fact lost as much as though actually severed from the body. The expression £ loss of feet ’ would generally be understood to mean a loss of the use of these members; and if the lower portions of the plaintiff’s body and his feet are completely paralyzed, and he is permanently and forever deprived of their use, he has suffered £ a loss of two entire feet,’ within the meaning of the policy.”

The next case in chronological order to which our attention is called is Stevers v. Insurance Ass’n, 150 Pa. St. 132 (16 L. R. A. 446 ). There it was held that:

“An accident policy insuring against involuntary, external, violent, and accidental injuries, and not against disease of any kind, or against disabilities which are the result, wholly or in part, of disease or bodily infirmities, and providing for a stipulated indemnity for partial permanent disablement, which is -defined to be the loss of one hand or foot or both eyes, does not cover the case of indemnity for an injury where the foot is not lost or injured, and it may be used constantly by means of an appliance of a plaster jacket to the spine, although the foot could not be used if the appliance were removed.”

It was held that he had lost neither the foot nor the use of it.

The case of Snech v. Insurance Co. is next in order of time. This case was tried twice, and is reported in 81 Hun, 331, and 88 Hun, 94. The undertaking in that case was based upon “a loss by severance of one entire hand or foot.” At the first review the court held that it was error to submit the case to the jury where the proof showed that the hand was removed a short distance back of the knuckle. Bradley, J., dissented; urging that the policy insured against loss of the hand, and that, it being shown that the entire use of the hand was lost, there might be a recovery. Upon the second hearing this view was taken; Werner and Ward, JJ., sustaining it; Lewis, J., dissenting; and Bradley, J., not voting; and this order was afterwards affirmed by the court of appeals in 156 N. Y. 669.

Again, in Lord v. Accident Ass’n, 89 Wis. 19 (26 L. R. A. 741, 46 Am. St. Rep. 815), it was held that “it is for the jury to determine whether a total loss of three fingers and a part of another on the same hand, destruction of the joint of the thumb, and a cutting of the hand, is a loss of the hand, ‘ causing immediate, continuous, and total disability,’ within the meaning of that clause in a policy of accident insurance.”

A number of cases are collected in a note to Turner v. Casualty Co., 38 L. R. A. 535, 536 (112 Mich. 425).

In 1 Am. & Eng. Enc. Law (2d Ed.), 301, this subject is summed up as follows:

“It has been contended on behalf of the insurance companies that the provisions in regard to the ‘loss’ of the hands and feet must be understood to imply an actual amputation or physical severance of those members from the body. But this view has not met with favor from the courts; it being held that, to entitle the insured to recover, physical severance is unnecessary, but it is sufficient if he has been deprived entirely of-the use of the feet and hands as members of the body. And there can scarcely be any doubt as to the soundness of this view, for if the feet and hands cannot be used for the purpose of moving about or walking, or for holding and handling things, they are in fact lost as much as though actually severed from the body. Many of the companies have altered their policies so as to read, ‘The loss of feet or hands by severance’ thereof; but this provision has been held to be intended to refer to the manner, rather than to the exact physical extent, of the injury.” /

These cases establish the proposition that where an insurance policy insures against the loss of a member, or the loss of an entire member, the word “loss” should be construed to mean the destruction of the usefulness of the member, or the entire member, for the purposes to which, in its normal condition, it was susceptible of application. In all of these policies the word “loss” is used, and it is the loss of the member that is in terms insured against. As indicated in the last authority cited, the attempts of the insurance companies to avoid this construction by so changing the policy that it reads, “ Loss by severance of feet or hands,” have failed; the courts holding, as before, that it is the loss of the use of the member which was the object of the contract. In the present case the word “loss” is eliminated, and the insurance is against “an injury that shall cause the amputation of a limb (whole hand or foot), or total and permanent loss of eyesight.” This language is not ambiguous, and, if the insurance company intended to limit its liability to cases where the entire member was actually amputated, it could not well have chosen more apt and certain language to indicate it, without supplementing it with a negative statement that should exclude recovery for the amputation of less than the entire foot or hand; and it is doubtful if that would not be open to the same construction as the language actually used. This company is composed of the insured. They make contracts of insurance which protect against certain injuries merely. It is not for us to make contracts for them, nor should we enlarge their liabilities. "We may determine the intention of the contracting parties as disclosed by the contract, if it is ambiguous, or in the light of the circumstances under which it was made, if it is fairly susceptible of a different meaning from that naturally implied by the unexplained use of the words. This is neither.

The instruction of the learned circuit judge was correct» and the judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    CHURCH v. CASE.
    1. Public Lands — Grants—Unmeandered Lake — Islands—Title.
    A government patent, without reservation, of the land bordering on an unmeandered lake, vests in the patentee the title to an unsurveyed island in the lake, which cannot be affected by the action of the government in subsequently causing the island to be surveyed and offered for sale through the regular-channels.
    2. Same — Estoppel.
    The fact that a person in possession of land, claiming to be the owner, applied to the government to have the same surveyed and offered for sale, will not estop him from disputing the title of a purchaser at such sale, where he notified such pur-, chaser, before the sale, that he was the owner and would contest the sale.
    Error to Genesee; Wisner, J.
    Submitted November 15, 1899.
    Decided December 30, 1899.
    Ejectment by Frank E. Cburch against Evington W., Charles E., and Emily E. Case. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      E. G. Chapin, for appellant.

      Clarence Tinker and Frank E. Jones, for appellees.
   Montgomery, J.

This is an action of ejectment to recover an island situated in Long Lake, Genesee county, containing about 18 acres. In the original survey of the township in which this island is situated, no island is shown. The lands adjacent to the lake are surveyed with lines extended to the shore in the usual way. The lake is not meandered. The evidence shows that patents were issued by the government many years'ago conveying different descriptions of land bordering on the lake, and all the descriptions which would include the island within the extended lines. The record is silent as to other descriptions abutting on the lake. The defendants and their grantors have been in possession and claiming title nearly 40 years, and, as against the patentees of most of the land adjoining the lake, have acquired title by adverse possession. If the grant by the government of the surveyed land adjoining the lake conveyed the title to the island in question, the plaintiff has shown no right to recover, unless the defendants are estopped, — a claim which will be referred to later.

It is not necessary to determine the rights of the various riparian proprietors as between themselves, or the method to be adopted in extending their lines. The question is, Did the conveyance of the land adjoining the lake pass title to the purchasers to this island? We think such was the effect of the patents. When they were made there was nothing which indicated to purchasers any intention of reserving this island from the conveyance. Butler v. Railroad Co., 85 Mich. 246 (24 Am. St. Rep. 84); Clute v. Fisher, 65 Mich. 48; Goff v. Cougle, 118 Mich. 307 (42 L. R. A. 161); Webber v. Boom Co., 62 Mich. 626; Chandos v. Mack, 77 Wis. 573 (20 Am. St. Rep. 139). Many years after the patents were issued, the secretary of the interior caused a survey of the island to be made, and it was offered for sale through the regular channels. The title having previously passed out of the government, the purchaser under such sale could acquire no title as against the earlier patentees. Webber v. Boom Go., supra.

The evidence shows that Timothy B. Case, late husband of defendant Emily, and father of the other defendants, applied to have this land surveyed and offered for sale; and it is claimed that his representatives should be es-topped from disputing the title of the purchaser. It appears, however, that before the sale was made to plaintiff, who became the purchaser, the plaintiff was notified by Mr. Case that he was the owner and would contest the sale. This notice was sufficient to remove one essential element of an estoppel. The plaintiff could not have relied on the previous representations or acts of Case in making the purchase.

The court properly directed a verdict for. defendants. Judgment affirmed.

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


text:
    FIELD v. MAGEE.
    1.Libel — Bribery of Electors.
    A publication, made pending an election, imputing to plaintiff the remark that there was not one of a certain class of voters in his county who could not be bought for a two-dollar bill, and stating that he was one of the ring’s chief heelers, and that such remark indicated how the ring intended to carry the fall election, is libelous per se, as holding plaintiff up to public hatred and contempt, and charging him with the purpose of committing bribery.
    2.Trial — Evidence—Objections.
    An objection to the admission of evidence will not be considered on appeal, where the charge of the court practically withdrew such evidence from the consideration of the jury, and the verdict shows that they were not prejudiced by it.
    3.Same — Waiver of Error.
    A party cannot complain of the exclusion of certain evidence, where the court afterwards intimated to him that he would consider a new offer of such testimony, and he failed to renew the offer.
    4. Libel — Verdict—Specification of Damages — Failure to Bequest Instructions.
    Defendant in an action for libel cannot complain that the court failed to instruct the jury' to specify in their verdict separately, as required by 3 Comp. Laws 1897, § 10434, the amount awarded for damages to feelings and the amount awarded for other damages, where no request was made for such instruction.
    Error to Chippewa; Steere, J.
    Submitted November 17, 1899.
    Decided December 30, 1899.
    Case by Nathaniel L. Field against Michael J. Magee for libel. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John W. Shine (A. B. Davidson, of counsel), for appellant.

      Warner & Sullivan, for appellee.
   Montgomery, J.

This is an action of libel. The publication complained of was the following:

“Slandered the French.
“ The Democrat takes exception to a remark attributed to Postmaster Field, of Rudyard, who is known as one of the ring’s chief heelers. The political situation was being discussed by Mr. Field and another heeler, when the latter remarked that, owing to so many French settlers coming into Rudyard, the township would probably go Democratic this fall. ‘ Oh, to h- — -1 with the French! ’ Field remarked; ‘there is not one of them in the county that cannot be bought for a two-dollar bill.’ This was a slanderous statement, and will no doubt be resented by our French voters to a man. The remark is indicative, however, as to how the ring expects to carry the election this fall.”

The plaintiff recovered a verdict of $100, upon which judgment was entered, and defendant brings error.

A large number of assignments of error are intended to raise the question of whether the article is libelous per se. It was alleged as matter of inducement, and proved on the trial, that an election was pending and soon to take place when this article was published. The statement imputed to plaintiff, that “there is not one of them in the county that cannot be bought for a two-dollar bill,” when coupled .with the statement that plaintiff “is known as one of the ring’s chief heelers,” and the further statement that “the remark is indicative as to how the ring expects to carry the election this fall,” leaves nothing further to be supplied by proof. This publication was not only intended to hold the plaintiff up to public hatred and contempt, but plainly charged him with the purpose of committing the offense of bribery. The article was libelous per se. See Randall v. Evening News Ass’n, 79 Mich. 266 (7 L. R. A. 309); Belknap v. Ball, 83 Mich. 583 (11 L. R. A. 72, 21 Am. St. Rep. 622).

The declaration averred that numbers of the citizens of French nationality who had been accustomed to trade with the plaintiff at his store ceased to do so in consequence of the publication of the libel. The defendant demanded a bill of particulars. One was furnished. Defendant thereupon made a motion for a specific bill of particulars, which motion was denied. On the trial, objection was made to evidence as to loss of trade on the ground that the names of the customers had not been given, which objection was overruled. We think it unimportant to determine whether this evidence was competent under the pleadings, as the court later in the case instructed the jury that no damages could be awarded for loss of trade, as there was no specific data before the jury upon which they could base any verdict in that particular, thus ex-’ eluding all such evidence from the consideration of the jury. The admission of the evidence could not have prejudiced the jury, as sufficiently appears by the verdict.

One Senogles was a witness for defendant to prove that the words imputed by the article to the plaintiff were uttered by him. On cross-examination he testified that he had had some trouble with plaintiff. He also testified that he first told of the conversation to Mr. Magee, and fixed the date as shortly before the trial, and after the trouble between the witness and plaintiff. On re-examination the witness was asked if he had had a talk with one Wyatt about the remark plaintiff is claimed to have made. He answered in the negative. Defendant called Wyatt to the stand, and asked him if he had a talk with Mr. Senogles, prior to the trouble between plaintiff and Sen-ogles, relative to the remark now alleged to have been made by plaintiff. This testimony was ruled out. It is now urged that it was competent to make proof of the fact that, before the trouble arose between the parties, the witness had made the same statement to others, for the purpose of negativing any inference that the statement was prompted by motives of revenge. There is authority which supports the admissibility of this testimony in certain cases. 10 Enc. PI. & Prac. 331. Such testimony is admitted, however, in corroboration of the witness, and not in any case as affirmative evidence. It is difficult to ascribe to the offered testimony the character of corroboration, when it is considered that the witness Senogles denied having the conversation with Wyatt. However this may be, we think a clear intimation was thereafter given by the circuit judge that he would consider a new offer of this testimony, and no such offer was made. In fairness to the trial judge, the offer should have been renewed. We think the defendant is not in position to complain of this ruling.

The verdict did not specify separately the damages suffered to plaintiff’s business, occupation, etc., and those arising from injury to his feelings. Neither party requested that the verdict be so taken, and the court, as before stated, excluded all damages in respect to plaintiff’s business. The question is ruled by McGee v. Baumgartner, 121 Mich. 287.

The other questions raised have been considered, and no error is discovered.

Judgment affirmed, with costs.

The other Justices concurred.


author: Per Curiam.

text:
    ROBERTS v. KALAMAZOO CIRCUIT JUDGE.
    Mandamus — Postponement of Foreclosure Sale.

      Mandamus was granted requiring the circuit judge to postpone a sale of property under a decree of foreclosure until the expiration of a year from the time of the appearance of certain of the defendants not served with process, it appearing that, owing to the pendency of certain suits affecting the property, it could not be sold to advantage at the earlier date fixed by the court.

      Mandamus by Charles E. Roberts to compel George M. Buck, circuit judge of Kalamazoo county, to postpone a foreclosure sale.
    Submitted December 12, 1899.
    Writ granted December 30, 1899.
    One Malcolm B. Williams, trustee, filed a bill of foreclosure against the Kalamazoo Heat, Light & Power Company and others in July, 1898. Pour of the defendants were not served with any notice, and did not appear until March 28, 1899. A decree of foreclosure was entered on June 26, 1899, authorizing the circuit'court commissioner to make sale at any time after the 1st day of August, 1899. The relator is interested in the first mortgage, and also in a subsequent mortgage. The interests, involved are large. A suit is now pending in this court involving the validity of the franchise of the defendant company, and is on the docket for the present term. A mechanic’s lien suit is also pending in the court below. The sale was advertised for November 22, 1899. On November 14th relator filed a petition in the circuit court in the cause, alleging the facts, and the injustice in now making a sale, and claiming, also, that the sale would be illegal, for the reason- that a year had not yet elapsed from the time a part of the defendants were served with notice and appeared in the case. The motion was denied, and the relator now asks for the writ of mandamus to issue out of this court to compel the postponement of the sale.

      E. A. & Robert B. Crane, for relator.

      Osborn, Mills & Master, for respondent.
   Per Curiam.

We deem it unnecessary to determine the question of the right to sell at the time specified. The court below had discretion to postpone the sale, and, we think, should have done so, since it is apparent that the property cannot now sell to advantage until the suits above mentioned are disposed of. See Detroit Fire & Marine Ins. Co. v. Renz, 33 Mich. 298. The writ will issue, directing the court below to postpone the sale until March, 1900.


author: Montgomery, C. J.

text:
    PEOPLE v. LUTTERMOSER.
    1. False Pretenses — Information—Averments.
    An information for obtaining money by false pretenses shows a natural connection between the false pretenses and the obtaining of the money, where it alleges that respondent fraudulently obtained orders for greater amounts than due, and then presented the orders and obtained the money thereon, though the orders were payable to third persons, and it is not averred how they came to respondent.

      2. Same — Duplicity.
    The gist of the offense charged by an information being the obtaining of money by the presentation of false orders, and the averment as to obtaining the money being single, there is no duplicity because of averments as to false pretenses by which the persons were induced to sign the several orders.
    3. Same — Moving- Cause.
    Upon the prosecution of a member of a township board for obtaining money from the township upon orders which he induced his associates to sign for more than the amounts due, an instruction is not erroneous which permits a conviction if the j ury should find that the fraudulent orders would not have been issued but for respondent’s wrongful act, though they may also find that the other members of the board, in signing the orders, acted to some extent upon a hasty examination of their own, and not altogether in reliance upon respondent.
    4. Same — What Constitutes'a Pretense.
    The presentation of orders for the payment of money by one who fraudulently procured them to be issued for more than the amounts due is a pretense, within the statute (3 Comp. Laws 1897, § 11575) prescribing a punishment for obtaining money by false pretenses.
    Exceptions before judgment from Wayne; Hosmer, J.
    Submitted June 22, 1899.
    Decided January 23, 1900.

      Otto L. Luttermoser was convicted of obtaining money by false pretenses.
    Affirmed.

      R. I. Laic son, D. B. Hayes, and Alfred Lucking, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.
   Montgomery, C. J.

The information in this case charges, in substance, that the respondent was on June 7, 1897, a justice of the peace of the township of Springwells, and a member of the township board; that Christian D. Roeser was supervisor, and Charles Warn eke was clerk; that on the date aforesaid, at a meeting of the board, there were before the board certain bills of certain claimants for work upon the highways of district No. 1 of said township, of which said district the said Luttermoser was a resident; that on said date, and at the place of said meeting, said Luttermoser took the order book of the clerk of the township, containing stubs and corresponding blank orders used for the payment of claims out of the highway funds of said township and district, and tiie said several bills of claimants, and then and there pretended and assumed to write out orders for the payment of the money of the several claimants in district No. 1 as shown by the bills before him, ready for the signatures of the clerk and supervisor, and to properly make out the several stubs connected therewith; that said Luttermoser correctly wrote the amount of the bill of Aug. Tabert (order No. 167), in the stub thereof, for the sum of $3.75, which said sum of $3.75 was the entire amount then and there due to said Tabert from the township of Springwells, but falsely, deceitfully, and fraudulently wrote in the order itself the sum of $13.75. The information avers like facts and acts of respondent as to three other orders, and alleges that the respondent did designedly and fraudulently cause these orders to be signed by the supervisor and clerk. The orders are set out, and are payable to the respective persons named as having claims against the township. The information further charges:

“And that thereafter the said Otto L. Luttermoser indorsed his name upon the back of each and every of said orders, and fraudulently presented the same to the treasurer of the township of Springwells, and received the money, according to the face of said several orders above set forth, out of the funds of said township; that the bill of Aug. Tabert, John Kunkel, Sam Gove, and Aug. Pries, then in the hands of Otto L. Luttermoser at the time he wrote the orders and stubs above set forth, was in' each case for the amount of three and 75-100 dollars, which sum in fact was actually owing to the said several parties, and which the said Otto L. Luttermoser then and there well knew; that the said Otto L. Luttermoser, by assuming and pretending to correctly copy the amounts of said several bills of claimants into the said several orders in payment therefor, induced the board to believe that the correct amount was written in the body of the orders, and knowingly, falsely, and fraudulently induced the said supervisor and clerk to sign and countersign the said orders, and by means of said false pretenses aforesaid the said Luttermoser did thereafter obtain the money represented by the said several orders from the treasurer of the said township of Springwells, out of the funds of said township, with the intent to cheat and defraud the said township of Springwells. And the said Christian D. Roeser, supervisor, and the said Charles Warncke, clerk, relying upon and believing the fact to be that the said Luttermoser had written in the body of said orders "the same amount as shown by the several bills, respectively, and being induced so to do by the false and fraudulent pretenses and representations of the said Luttermoser aforesaid, were deceived thereby, and respectively signed and countersigned the said orders; and the said Otto L. Luttermoser, by reason of the false pretenses as aforesaid, did designedly obtain possession of the said orders, and thereafter the money represented by and according to the face of said several orders, from the treasurer of the said township of Springwells, out of the funds of the said township, with the intent to cheat and defraud the said township of Springwells.”

The information further proceeds to negative the truth that the township was indebted to the various parties in the sum stated in the orders, and avers that the indebtedness was only $3.75 in each case.

1. It is contended that the information is fatally defective for the reason that no natural connection is shown between the false pretenses and the obtaining of the money. The fact that the respondent made use of these orders to obtain the money of the township to the amount represented by the orders, from the township treasurer, is averred. We think this makes the connection. It shows that in fact the orders were used as instrumentalities to obtain money fraudulently, and with intent to cheat and defraud the township.

2. It is next urged that the information is bad for duplicity, in that it charges two offenses, — the one, obtaining the signatures of the clerk and supervisor to a written instrument by false pretenses, under section 11575, 3 Comp. Laws 1897; and the other, obtaining the money of the township by false pretenses, an offense punishable under the same statute. The nature of the offense makes it necessary to set out the nature of the false tokens and pretenses. The obtaining of the signatures and the presentation of the orders constituted the false pretenses to the treasurer which induced him to part with the money of the township. Possibly the facts were set out in greater detail than was absolutely necessary, but this was not a fault. The gist of the offense was the obtaining the money by the presentation of false or invalid orders. When this is stated, it answers the further objection that the information is bad for duplicity because in the same count several distinct, petty offenses are alleged, as these supposed distinct offenses consist of obtaining these several orders, but the averment as to obtaining the money is single.

3. It is, contended that the evidence shows that the false pretenses were not relied upon. It is sufficient to say that we do not read the testimony as by any means conclusively showing any such thing. On the contrary, there is enough in the very circumstances of the case to justify the inference which the jury drew.

4. The court charged, on request of the respondent, as follows: “If you believe the testimony of Warncke, that he signed the orders because of his own investigation, and not because of anything Luttermoser said or did, then your verdict must be, ‘Not guilty,’”• — -adding, “As an abstract proposition of law, gentlemen of the jury, I think that is so, but I shall say something hereafter in qualification of that request.” And he later charged:

“In other words, if you should find that Mr. Warncke and Mr. Roeser knew of the invalidity of those orders, if you should find them invalid,— knew what Mr. Luttermoser had done in that regard, — then, under those circumstances, obviously there could be no conviction, because they would not have been moved by what he did. But all I meant to say in that regard was this: That because they say they did not necessarily rely upon what he had done, but made an examination, or something of an examination, for themselves, or at least one of them, or relied upon somebody else having checked them over, still I say that if you find with reference to this matter that, after all, the real cause of this matter was the fraud of Mr. Luttermoser, then, and under those circumstances, I should say it was the moving cause, and the false pre tenses in that regard, so far as the issuance of the orders, had been established.”

This instruction is assigned as error. We think it fully justified. Under this instruction, before the jury could find the respondent guilty, they must have found that the orders falsely representing an amount greater than the sums due the respective claimants would not have been issued except for the wrongful act of the respondent, and hence that the instrumentalities which enabled him to obtain the money from the township treasurer would have had no existence. We repeat, the gist of the offense was obtaining the money.

5. It is contended that, in order to warrant a conviction, there must be some active, direct pretense. The presentation of the orders, known to be fraudulent, and procured as these were, was a pretense. 1 McClain, Cr. Law, § 674. See, also, Com. v. Mulrey, 170 Mass. 103.

We have confined ourselves to the questions discussed in the brief of respondent’s counsel, and have not considered other assignments of error. We do not think there was error in respect to these matters discussed.

The conviction will be affirmed, and the case remanded.

The other Justices concurred.


author: Hooker, J. Per Curiam.

text:
    HALLETT v. GORDON.
    1. Contracts — Joint Undertaking — Actions—Parties.
    Where two persons jointly contract with a third, both are necessary parties to an action on the contract against him.
    2. Same — Breach of Warranty — Principal and Agent.
    Plaintiff, a married woman, brought suit against defendant for a breach of warranty in the matter of a sale of lands. It appeared that the lands were owned by a third person, in whose behalf defendant signed a land contract running to plaintiff and her husband. Held, that the facts did not necessarily establish a misjoinder or a fatal nonjoinder of parties, as plaintiff’s husband might have been named in the instrument merely as an incident to the contract between his wife and defendant, and the latter, in making the deal, may have bound himself, relying upon his ability to secure ratification by the owner.
    3. Same — Written Evidence — Modification by Parol.
    A contract of sale as evidenced by unambiguous writings cannot be modified by parol proof of a warranty.
    4. Same — Sale of Land — Statute of Frauds — Part Perform anoe.
    Part performance of a contract for the sale of land, invalid because not in writing, does not make it valid, so as to permit an action at law for its breach.
    ON REHEARING.
    Actions — Assumpsit—Fraud and Deceit — Principal and Agent
    Under 3 Comp. Laws 1897, § 10421, providing that in all cases where, by the fraudulent representations or conduct of any person, an injury is produced for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit shall lie upon an implied promise of the wrongdoer to pay all just damages arising from his conduct, assumpsit may be maintained against an agent who makes fraudulent representations to induce a purchase of his principal’s land.
    Error to Livingston; Smith, J.
    Submitted October 24, 1899;
    decided January 23, 1900.
    Rehearing granted April 3, 1900;
    former order modified May 15, 1900.

      Assumpsit by Jennie Hallett against Thomas Gordon, Jr., for a breach of warranty in the sale of land. From a judgment for plaintiff, defendant brings error.
    Reversed.

      William P. Van Winkle and Fred H. Warren, for appellant. ■

      Eugene A. Stowe and Louis E. Howlett, for appellee.
   Hooker, J.

Gersham Hallett and the plaintiff are husband and wife, and on March 23, 1897, the plaintiff owned the house.in which they dwelt, in the village of Howell. Being desirous of exchanging this property for a farm, they had a talk with one Allen about a farm occupied by him, and owned by a Mr. Newcomb, who lived in New York, and ascertained that Mr. Gordon was authorized to sell the same. They called upon Gordon, who looked at their dwelling, and expressed a willingness to exchange the farm for it, and an agreement was reached. The parties do not agree in all respects in r¿gard to this, but it appears that the dwelling was deeded to Gordon, who paid them #200, with which to buy a team and some other articles, and gave] them a land contract for the land in question, which he signed on behalf of Mr. Newcomb, the owner, and in a few days caused him to sign a duplicate of the same; both contracts being drawn at the same time, and both signed by plaintiff and her husband, — both of them being parties to it. It bound Newcomb to sell the farm for $800, and to deed and accept a mortgage when $400 should be paid. It seems to be conceded that there was a difference of $600 between the prices agreed upon for the places, which, with the $200 loaned, made $800, the price mentioned in the land contract. The plaintiff claims that this $200 was secured upon the horses, and should not be a portion of the consideration for the land, but we think this unimportant. The plaintiff and her husband took possession of the premises at once, and this action is brought upon an alleged breach' of warranty. The plaintiff claims that she was induced to make the exchange upon the representation by Gordon that a portion of the premises, at the time overflowed, was tillable, and that the place was worth $1,400, and that such representation was false. The defendant ■denies the alleged representation.

The defendant raises a number of questions. He says that the evidence shows conclusively that the contract was between Newcomb, on the one side, and Mr. and Mrs. Hallett, upon the other, and therefore there is a non joinder of a necessary party plaintiff, and that Newcomb, and not himself, should be the defendant. He asserts, also, that there is no warranty proved, and that the action, being assumpsit, will not support a recovery for deceit. The declaration is in assumpsit. The special counts, upon which the plaintiff elected to stand, are based upon an alleged breach of warranty. Hence, if the defendant is correct in saying that he was not a party to the contract, there is manifestly no liability for a breach of warranty, when he made no warranty. And, again, if it was a joint contract between the plaintiff and her husband, there is a nonjoinder of the latter, which is fatal upon the trial. 1 Saund. PL & Ev. (Am. Ed.) 10; Burgess v. Abbott, 1 Hill, 476; Hill v. Gibbs, 5 Hill, 56; Brown v. Fifield, 4 Mich. 322; Monaghan v. Insurance Co., 53 Mich. 252; Howe v. Hyde, 88 Mich. 91; 15 Enc. Pl. & Prac. 564. We must therefore ascertain whether the defendant is right in either of his contentions.

The negotiations between the parties were oral, and the writings do not of themselves show what the agreement was. All they show is that the plaintiff deeded the dwelling to Gordon for a consideration mentioned in the deed, and that a contract of purchase and sale was made between Newcomb, on the one side, and Mr. and Mrs. Hallett, upon the other. Unexplained, there is an implication of two transactions. It is shown, however, that these papers are merely the incidents of a verbal contract, and were executed and delivered to carry it out. And we find that, according to one party, Mrs. Hallett was making a.deal with Gordon, while the other says she and her husband were dealing with Newcomb. Either might be true. Mr. Gordon might have agreed t® make the exchange, relying on his ability to induce New-comb to make a deed or a land contract; and, on the other hand, Gordon and Mrs. Hallett may have made a contract in which it was agreed that the land contract should go to herself and husband. So far as that question is concerned, it could only be treated as a question of fact, and upon its determination would depend the questions of nonjoinder and misjoinder.

In either case the real contract was oral, and the two writings were given in the way of performance, merely. They were incidents of a contract, given at a later time in furtherance of it. They do not purport to contain the terms of the contract, and it is agreed by all concerned that they do not. Their existence shows performance in whole or in part, and they do not conclusively show which. If it were not for the statute of frauds, requiring the contract to be in writing, parol proof would be admissible, under Mouatv. Montague, ante, 334; but, as it is, it places the plaintiff in the attitude of suing upon the breach of a contract which, under the statute, is void because not in writing, or, if it could be contended that the writings do constitute the contract, proving by parol a warranty not contained in the written contract, which we have held in the case of McCray Refrigerator, etc., Co. v. Woods & Zent, 99 Mich. 269 (41 Am. St. Rep. 599), cannot be done.

It seems to have been contended in the original brief that, because the contract has been in part performed, the oral contract has become valid, and the door opened to a suit upon it, in which the warranty may be proved. It is true that part performance does take a case out of the statute to the extent of authorizing a court of equity to enforce a specific performance between the parties in cases where it can be equitably done. Equity takes jurisdiction because, although the contract is partly performed, the law cannot. It does not relieve in all cases, — e. g., when a party has put it out of his power to perform, or where one cannot be put in statu quo, or where the rights of third parties have intervened; and in such cases the contract cannot then be treated as valid, and damages awarded in an action at law. We are not cited to authorities that a parol contract becomes valid through part performance, so that it will support an action for its breach.

The plaintiff’s supplemental brief shows that it was her original claim in the case that the contract was void under the statute, of frauds, for the reason that it (i. e., the contract for the sale of the farm) was signed for and on behalf of Newcomb by Gordon, who had no written authority to do so. It states further that thereupon a copy of such agreement, signed by Newcomb (to whom, defendant claimed, it was sent by arrangement of the parties for such purpose), was introduced, and that then “the plaintiff accepted the theory of the defendant, that the contract was a valid one, and not within the statute of frauds, and announced that she would ask a verdict upon the special counts for a breach of warranty.” It states that “the theory of the defendant during the entire trial was that the contract was valid, and the plaintiff, by electing to ask a verdict upon the special counts, by so doing affirmed the contract.” It is claimed that, by signing the land contract, Newcomb ratified the entire original agreement. There is no doubt that, upon the defendant’s theory, Newcomb did ratify the contract, and that it was his contract, and not the defendant’s contract; and therefore there were no contract relations between the plaintiff and the defendant, who acted merely as an agent for Newcomb in the premises, and, there being no promise made by him, assumpsit would lie only against Newcomb, who did make such promises as were made.

But it is said that if this be Newcomb’s contract, and not Gordon’s, the plaintiff still has a right of action against Gordon, the agent, because of his fraud and deceit. Granting that, the declaration could not be assumpsit for the deceit. He should be sued in case, and might be sued separately, or jointly with participants in his fraud. See Weber v. Weber, 47 Mich. 569. When the action is brought against the contracting party, there may be cases where the action may be in tort for the fraud, or, by treating the fraudulent representations as warranties (when that can be done), assumpsit may be sustained. It is s.aid that the distinction between actions in assumpsit and on the case has, however, been largely done away with, and the present doctrine is that the buyer may have his remedy by an action on the warranty, sounding either in tort or in contract. But, if that be granted, it can hardly be supposed that an action of assumpsit will lie when there is no contract (i. e., no promise) between the parties. If we should say that the land contract was valid as to either, — -and there is little doubt that it is so, — we should have to say that it contains no contract of warranty. But it is evident that the plaintiff is not relying upon any such, but upon another contract, out of which the writing grew, and of which the giving of the writing by Newcomb was in part performance.

The judgment must be reversed, and no new trial will be ordered.

The other Justices concurred.

ON BEHEABING.

Per Curiam.

A reference to the opinion filed on the original hearing will show that this cause went to the jury upon the theory of a breach of warranty in a contract. Ante, 568. It was reversed because the alleged contract was void under the statute of frauds. In discussing the case we said that there could be no recovery under this declaration for deceit, and that recovery in such a case for fraud could only be had in an action upon the case. Our attention is now called to a recent statute (3 Conap. Laws 1897, § 10421), which, though an innovation, illogical, and paradoxical, is not necessarily void. We should therefore correct the statement made in the opinion. It can make no difference with the result,, however, except that a new trial should be ordered. This authority not having been cited either in the original brief or that furnished at the request of the court, no costs will be allowed upon the motion or rehearing.

The former order will be modified by directing a new trial.


text:
    CITIZENS’ STATE BANK OF STURGIS v. McGRAFT LUMBER CO.
    Corporations — Mortgages —Authority from Stockholders— Strict Compliance — Waiver—Execution Creditors.
    That a mortgage given by the officers of a corporation to secure certain of its outstanding obligations was not strictly within the terms of the resolution of the stockholders authorizing a mortgage to be given, the resolution apparently contemplating a new loan, can he taken advantage of only by the corporation or its stockholders; therefore, where the stockholders see fit to waive the departure, and to recognize the instrument as valid, an execution creditor of the corporation is not in position to raise the question, when brought in as a party defendant upon a bill to foreclose the mortgage. Beecher v. Mill Co., 45 Mich. 103, followed.
    Appeal from St. Joseph; Yaple, J.
    Submitted October 24, 1899.
    Decided January 23, 1900.
    Bill by the Citizens’ State Bank of Sturgis against the Sturgis Fair Association to foreclose a mortgage. The McGraft Lumber Company and others were made parties as subsequent incumbrancers. From a decree for complainant, defendant lumber company appeals.
    Affirmed.

      Charles A. Sturgis (II. P. Stewart, of counsel), for complainant.

      L. N. Keating, for appellant.
   Montgomery, C. J.

This is a bill filed to foreclose a mortgage given by the Sturgis Fair Association to the complainant on the 29th of July,' 1893, to secure certain outstanding obligations. The defendant McGraft Lumber Company is made defendant as a subsequent purchaser or incumbrancer. A considerable number of questions are discussed, but the controversy may be narrowed by a statement. The fair association is organized under Act No. 6 of the Public Acts of 1889. By section 9 of this act it is provided that:

‘ ‘ Said corporation shall also have power, when authorized by a majority vote of the stockholders present at any regular or special meeting, called as in the by-laws provided, to borrow money, and secure the same by mortgage on its property.” 2 Comp.'Laws 1897, § 6955.

It appears that a meeting of the stockholders was held on the 12th day of July, 1893. A resolution was adopted, reading as follows:

“Whereas, it appearing to the stockholders of the Sturgis Fair Association, at their regularly-called special meeting, that there is an indebtedness against the said association of about $18,000, secured by the individual indorsement of the directors: Therefore, be it resolved by the stockholders of said association that mortgage indentures be executed upon the real estate of said association for a sum not exceeding $13,000, bearing a rate of interest not exceeding 7 per cent, per annum, payable semi-annually in advance, and that the president and secretary of this association be, and are hereby, authorized to negotiate the said mortgage loan, and to execute the said mortgage or mortgages, and the necessary promissory notes, for and in the name of the said association.”

No new loan was effected, but on the 29th of July a mortgage was given as collateral security to three notes held by the complainant, upon which the association was liable either as maker or guarantor, one of which was past due; the condition of the mortgage being that the notes be paid on the 1st day of August, 1893. The defendant McGraft Lumber Company, on the 11th of July, 1894, recovered a judgment of $414.92, and $23.15 costs, against the association, and thereafter levied an execution on the mortgaged property, and became a purchaser at the execution sale.

It is contended that the mortgage given is not, in its terms, the one authorized by a vote of the stockholders, and that it is void as to defendant McGraft Lumber Company. It is true, the execution of the mortgage did riot strictly follow the power, but it appears that the corporation never repudiated the mortgage; that it paid interest on the obligations it secured, and does not now, nor «does any stockholder, contest the validity of the mortgage. The case is not distinguishable in principle from Beecher v. Mill Co., 45 Mich. 103. In that case it was held that a similar provision of statute was enacted for the protection of the stockholders; that the mortgage was not void,' but voidable; and that, where the stockholders chose to waive the formalities required by statute, an execution creditor could not attack the validity of the mortgage. See, also, Hervey v. Railway Co., 28 Fed. 169; Campbell v. Mining Co., 51 Fed. 1; 5 Thomp. Corp. § 6165; 2 Cook, Stock, Stockh. & Corp. Law, 1264. The defendant’s counsel cites, in support of his contention, McKee v. Railway Co., 41 Mich. 274, and Kendall v. Bishop, 76 Mich. 634. In the McKee Case the complainant was not a creditor of the corporation, but accepted bonds of the corporation as collateral to an obligation owing to him by the treasurer of the company; and, so far as appears, this was without the authority of the stockholders. In other words, the bonds were unlawfully diverted, with the knowledge of complainant. The transaction was held to create no liability against the company. In the case of Kendall v. Bishop a mortgage was authorized, and what the court considered to be a general assignment was executed in its stead. It was held void as an unlawful preference, and also because not authorized by the directors. The case is unlike the present.

The other questions presented do not call for discussion. All of them have been considered, and no error is discovered.

Decree affirmed.

The other Justices concurred.


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    KRISELER v. LE VALLEY.
    1. Municipal Corporations — Claims—Formalities—Waiver.
    Where the common council of a village considers and allows a claim, though not accompanied by an affidavit or by a certificate of an officer of the corporation, as provided by 1 Comp. Laws 1897, § 2754, the formalities will be deemed waived, and their absence, therefore, will not justify the village president in refusing to sign an order for the payment of the claim.
    2. Same — Officers—Appointment.
    Under 1 Comp. Laws 1897, § 2700, providing that the president ' of a village shall appoint, by and with the consent of the council, such officers as shall be provided for by ordinance or resolution, an. ordinance providing for the appointment of a deputy marshal is sufficient to authorize the appointment of an officer designated by the president as “night watch man and deputy marshal,” though his duties are prescribed as commencing at 6:30 nightly, and continuing until 5:30 the following morning.
    3. Same — Failure to Give Bond — Vacation oe Office.
    Under 1 Comp. Laws 1897, § 2710, providing that a village council may declare an office vacant for failure to give a an office is not vacated by such failure until action by the council.
    4. Same — President—Removal of Officers.
    Under 1 Comp. Laws 1897, § 2729, which provides that the president of a village may remove any officer “ appointed by him ” when he shall deem it for the public interest to do so, he has authority, when in his judgment the public interest requires it, to remove officers to whose appointment the consent of the council is required.
    5. Same — Notice.
    Under 1 Comp. Laws 1897, § 2729, authorizing a village president to remove officers appointed by him, a removal is not' effective until the officer has been notified thereof.
    6. Same.
    A notice to a village officer, signed only by the village clerk, informing him that, at a meeting of the council, all appointive officers were discharged, is not notice of any action by the president, in whom by 1 Comp. Laws 1897, § 2729, authority to remove from office is vested, and it is therefore insufficient to relieve such officer from duty.

      Certiorari to Tuscola; Beach, J.
    Submitted October 24, 1899.
    Decided January 23, 1900.

      Mandamus by Charles F. Kriseler to compel Frank D. Le Valley, president of the village of Vassar, to sign an order for salary claimed to be due relator as deputy marshal. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Quinn & Wixson, for relator.

      E. H. Taylor, B. L. Hansford, and Huston & Spears, for respondent.
   Montgomery, C. J.

This is certiorari to review mandamus proceedings. The relator presented a claim to the common council of the village of Yassar for services as night watchman and deputy marshal for the month of April, 1899, amounting to $31.25. The claim was allowed by the common council, and an order was drawn in favor of the relator, and signed by the village clerk. This order was presented to the respondent, who is president of the village, for his signature. Respondent refused to sign the order, and on application to the circuit court of Tuscola county, after a hearing of the petition and return, and concessions made in open court, .a writ of mandamus was granted, requiring respondent to affix his signature to the order. This is the proceeding to be reviewed.

It is urged that the account presented was informal, and not in compliance with section 2754, 1 Comp. Laws 1897. The section in question is intended to protect the ■ village against suit without an opportunity previously 'offered to the council to investigate the claim and do justice. It is true, the statute provides the claim shall be accompanied by an affidavit or a certificate of an officer of the corporation. Assuming that this provision was intended to apply to the account of an officer of the village for a fixed salary, the council has the right to insist upon such certificate or affidavit as a condition to its talcing action on the claim, but it also has the right to waive the requirement. In this case' the council saw fit to treat the claim as sufficient in form, and unanimously allowed the claim. The respondent was not justified in refusing to recognize the action of the council on this ground.

It is contended, however, that there was no such officer as night watchman and deputy marshal. Section 2700, 1 Comp. Laws 1897, provides that “the president shall, by and with the consent of the council, appoint a village marshal and a street commissioner, and such other officers as shall be provided for by resolution or ordinance of the council.” It appears that an ordinance creating the office of deputy marshal has been in force since 1882. The council proceedings show that on April 11, 1898, the president appointed as night watchman and deputy marshal “Charles F. Kriseler, whose duties shall commence at 6:30 nightly, and continue until 5:30 the'following morning, at a salary of $375 per year.” This appointment was confirmed by a two-thirds vote. We do not construe this action as an attempt to create the office of night watchman, but rather as intended to designate the relator as a deputy marshal, fixing the hours of his service from 6:30 at night to 5:30 in the morning. The authority for his appointment as deputy marshal must be found in the ordinance creating that office.

But it is contended, and the answer states, that the relator never gave the bond required of a deputy marshal by the terms of the ordinance. Section 2710, 1 Comp. Laws 1897, reads as follows:

“If any person elected or appointed to office shall fail to take and file the oath of office, or shall fail to give the bond or security required for the due performance of the duties of his office, within the time herein limited therefor, the council may declare the office vacant, unless previously thereto he shall file the oath and give the requisite bond or security.”

Under this statute the office was not vacated by a failure to give the bond, until some action was taken by the council. See Mechem, Pub. Off. §§ 265, 266.

Section 2729 provides that the president may remove any officer appointed by him at any time when he shall deem it for the public interest, and may suspend any policeman for neglect of duty. On the 10th of April, 1899, the president read to the council, and filed, the following:

“I deem it for the public interest that all appointive offices be, and the same are hereby, declared vacant, namely, the office of -marshal, street commissioner, night watchman, deputy marshal, member of the water board, whose term has expired, village attorney, health officer, and chief of fire department.”

This became a part of the proceedings, and was duly published. In addition, the clerk served on relator the following notice:

“'Council Rooms, Village of Vassar,
“ Office of Clerk.
“Vassar, Mich., April 14, 1899.
“Chas. F. Kriseler,
“Vassar, Mich.
Dear Sir: You are hereby notified that at a meeting of the common council held April 10, 1899, all officers appointed by the common council last year were discharged, and thereby you are released from further duty as night watchman.
“Yours truly,
“B. P. Miller, Village Clerk.”

In construing the statute, it is to be kept in mind that there are no officers authorized to be appointed by the president alone, except policemen for temporary purposes, and that therefore it is a fair construction of the section quoted which ascribes an intent to vest the power in the president of removal of an officer appointed by him with the consent of the council. It seems more clear that this is what was intended, as' no power to remove appointive officers seems to be vested elsewhere.

We think the intent to remove relator is sufficiently manifested by the action taken by the president; but, to render the removal effective, this intention must be manifested to the officer by notice to him. Mechem, Pub. Off. § 460. The notice signed by the clerk was not notice of any action by the president, and no other legal notice was shown to have been served. It follows that the removal of the relator was not shown, and the order of the circuit court should be affirmed.

The other Justices concurred.


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    COUNTY OF MONTMORENCY v. PUTNAM.
    1. County Treasurer — Settlement with Supervisors — Action on Official Bond — Argument of Counsel.
    Where, in an action on a county treasurer’s bond, evidence concerning certain settlements between the treasurer and the board of supervisors was submitted'to the jury, counsel should have been permitted to argue before the jury the question of the weight to be attached to such evidence. .
    '2. Same — State of Account — Prima Facie Evidence.
    Such settlements, at least annually,' being provided for by 1 Comp. Laws 1897, § 2479, ar e prima facie evidence of the state of the account, either party, however, being at liberty to show fraud, mistake, or omission.
    •3. -Same.
    Evidence that payments had been made to and by the treasurer which were not credited in the settlements affects only the weight to be given to them as prima fqeie evidence of the state of his account.
    Error to Montmorency; Kelley, J.
    Submitted November 14, 1899.
    Decided January 23, 1900.

      Assumpsit by the county of Montmorency against Edward J. Putnam, principal, and Lewis Jenson and others, sureties, on a county treasurer’s bond. From a judgment for plaintiff, defendants bring error.
    Keversed.

      Frank Fmerick, for appellants

      James Francis, for appellee.
   Montgomery, C. J.

This is an action on the official bond of the former treasurer of Montmorency county. The evidence on the trial consisted of testimony of expert accountants, the books of the treasurer and vouchers produced, and also three settlements made by and between the treasurer and the board of supervisors. At the conelusion of the testimony, the circuit judge announced that, in view of the claims of the respective parties, the settlements cut no figure in the case, as determining the amount due, and restricted counsel in the argument of the case when they were trying to make use of the settlements as establishing prima facie the state of the account between the treasurer and the county. In the charge to the jury, the circuit judge said, “These settlements are in evidence, and you may consider them, with the other evidence, as tending to show the probability of the claims of these parties;” and proceeded to discuss the settlements somewhat at length. We need not consider whether the charge as a whole dealt fairly with the subject of these settlements, as it is clear that, if the subject-was to be considered at all, counsel had the right to argue the question of the weight to attach to them to the jury.

The statute (section 3479,1 Comp. Laws 1897) provides for such settlements, and for a record of them.' They are not conclusive. Township of Boardman v. Flagg, 70 Mich. 372; Bush v. County of Johnson, 48 Neb. 1 (33 L. R. A. 333, 58 Am. St. Rep. 673). But we think the settlements, while open to impeachment, are to be treated as prima facie evidence of the state of the account, either party being at liberty to show fraud, mistake, or omission.

The circuit judge appears to have been of the opinion, at first, that because one of the witnesses for the defendants testified to certain payments made by the treasurer not credited in the settlements, and the testimony tended to show that the county had not been credited with certain moneys collected, the settlements should be wholly discarded. We think this testimony affected only the weight to be given to them. The defendants’ counsel did not claim that the settlements were conclusive, but claimed the right to discuss the weight do be given to them. This was denied them, and in this there was error.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


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    DICKINSON v. HENDERSON.
    1. Wills — Claims of Widow — Waiver—Allowance of Executor’s Account — Trustees.
    The fact that testator’s widow, entitled under the will to the income of his estate for life, failed to make any claim on the executors before the approval of their accounts showing that such sums had been turned over to trustees under the will, did not constitute a waiver of her right to the income so paid over, there having been no final order for the distribution of the fund.
    2. Same — Allowance for Support-Payment.
    Moneys shown by an executor’s final account, as approved by the probate judge, to have been paid to the widow for her support, will be treated as made from the testator’s estate, and not from the income thereof bequeathed to'the widow, though no formal order was entered on her petition for such an allowance.
    3. Probate Courts — Order of Allowance — Judge’s Memorandum.
    Where, on hearing a widow’s petition for support pending the settlement of her husband’s estate, the probate judge entered a memorandum in his docket, “Widow allowed net income for support,” such memorandum did not constitute an order, and cannot be considered on appeal from a decree approving payments made to the widow by the executor and trustee.
    4. Estates of Decedents — Net Income — What Constitutes.
    An executor, charged with the duty of paying over to the widow the “net income” of the estate, must deduct, before making payment of the income, the necessary expenses, such as taxes, repairs, and costs of collection, incurred in caring for the estate.
    Appeal from Wayne; Lillibridge, J.
    Submitted November 15, 1899.
    Decided January 23, 1900.
    Bill by Julian G. Dickinson, surviving trustee under the last will and testament of Davis Henderson, deceased, against Charles D. Henderson and others, for a construetion of said will, and to obtain an order approving certain payments to the widow. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      John D. Conely, for complainant.

      Morse Bohnert, for defendants.
   Montgomery, C. J.

This is a bill filed to obtain a construction of the will of Davis Henderson, deceased, and to obtain an order approving certain payments made to the widow by complainant as executor and trustee. The two clauses of the will which bear on the question involved are the second and fifth. The second reads as follows:

“I give, devise, and bequeath to my wife, Elizabeth Sinclair Henderson, for and during her natural life, in lieu of dower, and subject to the trusts hereinafter specified, all and singular the rents and profits of all my real estate, and the income from all the rest and residue of my personal property and effects, of every name and nature.”

The fifth is in part as follows:

“I hereby nominate as executors of this, my last will, my wife, Elizabeth Sinclair Henderson, and Julian G. Dickinson, and do hereby appoint them trustees for the following purposes: To take possession of and manage all my said real estate, personal property, and effects during the life of my said wife and during the minority of my said grandchildren; * * * to collect all moneys due and' belonging to my estate, and keep the same invested in good, interest-bearing, first mortgages, on real estate in the city of Detroit; to pay over to my said wife all the net income from rents and from interest collected on any of said investments, keeping the principal of all my personal estate, invested as aforesaid, intact during the life of my said wife.”

Complainant and Mrs. Henderson duly qualified as executors, and took possession of the estate, which consisted of real property valued at upwards of $40,000, and personal property, securities, accounts, and money in bank amounting to $38,508.79. Pending the settlement of the estate, a petition for a widow’s allowance was filed, and a hearing had thereon; No formal order of allowance was made and entered, but in the judge’s docket, under the head of “ Remarks,” is entered, “Widow allowed net income for support.” On the 2d of December, 1891, the executors presented their separate final accounts as executors, which were later allowed, as presented, by the probate judge. In this account appear items aggregating $3,700 “paid Elizabeth S. Henderson, widow, for her support.” In this account complainant took credit for $25,976.41 turned over to the trustees under the will, and Mrs. Henderson took credit for $335 so transferred. During the period of administration, the rents collected aggregated $2,232.16, and the interest earned $886.05, which, with $230.93 earned on the Griffith mortgage prior to the probate of the will, but collected by the executors, amounted to $3,349.14. Complainant, on request of Mrs. Henderson, turned over to her this entire sum of $3,349.14, considering that she was entitled to the same under the terms of the will. The present controversy concerns this payment.

It is contended by the defendants that, the account of the executors having been allowed without any such payment having been made, the complainant, as trustee, had no authority to make payment thereafter, and that in no view was the widow entitled to more than the net income. On the other hand,’ complainant contends that Mrs. Henderson was by the terms of the will entitled to the income of the estate, as her own property; that the unsigned memorandum of the probate judge never became an order from which an appeal could be taken, or'strictly an order of court; that the order approving the final account of the executors approved of the payments made to Mrs. Henderson for her support, and that it must be assumed that the payments were made from the personal estate of deceased, and not from the income; that the order approving the account, and the payment of the trust fund into the hands of the trustees, did not change the character of the fund, or deprive Mrs. Henderson of her property right in and to the income of the estate.

We are cited to the case of Lawrence v. Security Co., 56 Conn. 423 (1 L. R. A. 342), as sustaining defendants’” contention that, failing to make any claim on the executors for the income during the administration of the estate, the widow waived her claim to such income. The-case cited falls short of sustaining the contention. In. that case there had been a distribution of the fund, with the sanction of the court, given by an order entered after the widow had had her day in court. This order was held final. In the present case the effect of the order allowing-the account was to find that there had been turned over into the hands of the trustees a certain sum of money. No order was made as to the distribution of the fund, and we think the property rights of Mrs-. Henderson were not cut off by the order.

The order approving the account involved an approval of the payments made to Mrs. Henderson for her support. We think this allowance must be treated as having been made from the estate left by the testator, and not from the income. The memorandum made on the petition of the widow never assumed the form of an order, and cannot be considered. People v. Eaton Probate Judge, 40 Mich. 244. We think so much of this fund as the wilL provides shall be paid to Mrs. Henderson, she had the right to have paid to her after it was placed in the hands of Mr. Dickinson as trustee.

The decree below approves the payment of the gross income, without any deduction whatever for expenses of collection, repairs, or taxes. We do not think this was intended by the 'will. On the contrary, the intention to preserve the estate is manifest. The decree will be modified by providing that complainant is entitled to credit for the payment made to Mrs. Henderson to the extent of the net income only. The appellants will be entitled to costs of this court. As we are convinced of the good faith of complainant, no costs will be allowed for the proceedings in the circuit to either party.

The other Justices concurred.