text:
    DETROIT UNITED RAILWAY v. BARNES PAPER CO.
    Statutes — Implied Repeal — Street Railways — Eminent Domain —Elevatino- Tracks.
    Act No. 133, Pub. Acts 1905, purporting to amend section 6446, 2 Comp. Laws, and conferring tbe power of eminent domain upon street railroad companies, did not repeal Act No. 101 of the same session, which purported to amend the same compiler’s section and contained a proviso limiting the manner in which municipalities could authorize street railroads to cross streets, highways, or other railways, not contained in said Act No. 133; the two acts not being inconsistent, and the later act making no reference to the earlier one.
    Certiorari to Oakland; Smith, J.
    Submitted June 19, 1907.
    (Docket No. 47.)
    Decided October 4, 1907.
    Condemnation proceedings by the Detroit United Railway against the Barnes Paper Company. There was an order dismissing the petition, and petitioner brings certiorari.
    Affirmed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for petitioner.

      Davis & Bromley, for respondent.
   Moore, J.

The petitioner is a corporation engaged in the operation of electric railways, both city and suburban. One of its lines runs from the city of Detroit to the city of Flint, passing through the village of Rochester, crossing the Air Line division of the Grand Trunk Railroad in the village on a wooden trestle.

The relator filed its petition in the circuit court for the county of Oakland for the purpose of condemning certain lands of the Barnes Paper Company, a Michigan corpQration doing business at the village of Rochester, which company and its attorneys filed certain objections and an answer to the petition. After a hearing the circuit judge filed written findings on the objections made and dismissed the petition. This is a proceeding to review his action.

The reasons for the ruling of the court may be grouped under six heads:

1. That the failure to publish the ordinance within one week of its passage is jurisdictional and fatal.

2. That the petitioner has no right to construct an embankment on the easterly portion of the highway.

3. That the petitioner is not entitled under the laws of this State to maintain proceedings for the condemnation of land.

4. That the company, having once located its track, cannot change the same.

5. That under the laws of the State of Michigan the village had no authority to grant the right to the company to construct an embankment in the highway, but were limited to authorize the construction of a trestle.

6. That the petitioner does not seek to take all the lands owned by the respondent that would be necessary to take if the improvement is made.

In our view of the case it will not be necessary to consider all these reasons. The record discloses that the first ordinance given by the village of Rochester to build the street railroad through said village, which was passed on January %, 1899, provided for.a grade crossing, across the tracks of the Air Line division; that after this ordinance was passed it was found impossible to build the road across that thousand feet and across the tracks of the Air Line division at grade, because the State railroad crossing board refused to give its consent. This action brought about the passage of another ordinance which may be called the trestle ordinance, and after its passage 1,000' feet of track was laid on a trestle, and is the track upon which the company is now running its cars.

. In February, 1906, the village council undertook by ordinance to allow the relator to build an embankment to take the place of the trestle. To make the embankment the relator proposes to use about 30 feet off the east side of Main street and about 90 feet of land, 1,000 feet long, belonging to the Barnes Paper Company, lying adjoining and east of the street, and make a fill of earth thereon about 1,000 feet long and from 10 to 30 feet high and lay its railway tracks thereon, which would bring the said tracks somewhat easterly of where they now are, leaving openings in such embankment for the two streets, the Clinton river, and the tracks of the Air Line division, at which place the trestle is now 22 feet high in the clear.

The relator claims the village had the right to authorize it to make the embankment by reason of the provisions of Act No. 133 of the Public Acts of 1905, and that said act repealed Act No. 101 of the same session. Both of these acts purport to amend section 6446, 2 Comp. Laws. Act No. 133 does not, in its title or in the body of the act, refer to Act No. 101, nor does its title mention the subject of eminent domain. Act No. 101 contained the following provisions:

“And provided further, That this section shall confer no authority to construct and operate elevated railways so-called, but shall only give to municipalities the right to authorize the construction and operation of street railways above the streets , and highways by means of trestles, at points where such construction and operation are deemed to be necessary by reason of such railway crossing highways, streets or other railways. * * * Nothing in this section contained shall be in any way construed so as to in any way affect .any rights which abutting property owners may have to damages or additional damages by reason of the erection or maintenance of trestles or other structures above the streets heretofore or hereafter erected or maintained under this section.”

Act No. 101 was approved May 10, 1905, and was given immediate effect. Act No. 133 did not contain the proviso limiting the manner in which municipalities could authorize street railways to cross streets, highways, or other railways, but did provide that street railways should have the right and power of eminent domain. This act also took immediate effect.

It is claimed the act which was passed latest repealed the other. We do notthink this necessarily follows. The acts were passed by the same legislature in the same month, and were given immediate effect. One of them confers upon the village councils the right to give roads like the relator certain privileges, but expressly limits their powers in certain ways. In the last act no reference is made to the first act, nor is there any reference' made to these limitations. We do not think there is anything so inconsistent in the two acts as to have the effect of repealing the limitations contained in the first act. Having reached this conclusion, we think it unnecessary to' discuss the other questions raised.

Judgment is affirmed, with costs to the respondent.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    FLECKINGER v. TAFFEE.
    1. Malicious Prosecution — Evidence—Admissibility.
    In an action for malicious prosecution, evidence as to the family of plaintiff is admissible.
    2. Same — Evidence—Appearance op Dependant.
    It is error to allow a witness to state that defendant appeared to be displeased because plaintiff was allowed to go on his own recognizance, since such testimony goes beyond giving the appearance of the defendant as evidencing a mental state of pleasure, ill will, anger, or the like, which is permissible.
    3. Same — Probable Cause — Question op Law* or Fact.
    Where-the facts are undisputed the question of probable cause is for the court.

      4. Same — Defenses—Advice of Counsel.
    The advice of counsel, followed in good faith, after a full and fair statement of all the material facts in the case, is a defense to an action for malicious prosecution, though the facts as stated to counsel do not justify the advice given.
    Error to Calhoun; North, J.
    Submitted June 19, 1907.
    (Docket No. 73.)
    Decided October 4, 1907.
    Case by George C. Fleckinger against Thomas Tafi'ee for malicious prosecution. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Hatch & Page {E. J. Dennison, of counsel), for appellant.

      H. W. Gavanagh, for appellee.
   Blair, J.

Defendant,caused the arrest of plaintiff for the alleged larceny of a quantity of corn from the farm of defendant, which, at the time of the alleged larceny, was occupied and operated by plaintiff under a written lease containing, among other provisions, the following: Said Fleckinger, party of the second part,—

‘ ‘ To cultivate, work, harvest crops, plant, sow,. reap, gather fruit and do each and everything proper and necessary in a good husbandlike manner, and deliver in market all stock, grain and hay, when sold from said farm, under the direction and supervision of the party of the first part, as tenant working the farm of the party of the first part, situated and being in the township of Clarendon, on sections four and five. Said party of the first part to be the directing and controlling mind in the manner in which all work upon said farm shall be performed, and as to the manner of seeding, cultivating and gathering the sale of crops, stock and each and everything pertaining to the management of said farm, said second, party taking and being in the position of a servant working and cultivating said farm. * * *

“The said party of the second part agrees to harvest and gather said crops in proper season and to market the same under the direction of the said party of the first part, and the proceeds of the same shall be delivered to the said party of the first part upon demand, after deducting the share of the party of the second part. The party of the second part shall be entitled as his compensation for working said farm, one-half of the products of said farm, but it is expressly agreed and understood that all the products grown upon said farm shall first be used to feed and keep in proper condition the stock, hogs, sheep and poultry upon said farm, including six work horses used upon said farm, and two horses and one cow, property of the party of the first part, being in the city of Marshall, and said party of the first part shall' have the right to take from the products of said farm sufficient material grown on said farm, to feed, bed and keep said two horses and cow in a proper condition. * * *

“ The increase of the stock of said farm shall be divided equally, the products of the said farm shall be divided equally, after feeding as above stated. The fruit grown upon the said farm shall be divided equally. The said second party shall have one-quarter of an acre for a garden of his own. * * *

“ The term products of said farm is understood tornean everything produced or grown upon said farm (except garden spot) from a hen’s egg to a load of wheat, in fact, everything of every nature and name that is either grown, sown, harvested or raised on said farm.

“Itis hereby agreed and understood that the right, title and interest of and to every piece and particle of personal property upon said farm, and the farm itself, is and are absolutely in the party of the first part, who shall have at any time, when the said party of the second part shall fail to perform the conditions of said lease in any manner, the right to take possession of the same and sell the same at public or private sale, and to retain the proceeds of the same as stipulated damages for the nonperformance of this contract. But in case the party of the second part shall well and faithfully perform the conditions of this contract, then the said party of the second part shall be vested with the absolute title to one-half of the products and stock of said farm on the 13th day of March, 1906. The said party of the first part does hereby constitute and make the said party of the second part his agent and attorney in fact, to sell and receipt for products grown and sold from said farm, and the said second party does hereby accept said agency.”

Plaintiff was discharged upon the examination and brought this suit to recover damages for alleged malicious prosecution. Plaintiff took possession of the farm, under the lease, March 14, 1905, and moved off February-20, 1906. On December 21st, defendant notified plaintiff not to move any of the corn off the farm. On December 27th, plaintiff drew 45 bushels of the undivided corn away and sold it, upon advice of counsel but without defendant’s knowledge. On December 21st, plaintiff asked defendant to divide the corn, which he refused to do.

“December 21st was our first settlement of the book diCcount 4»

“I had a settlement with Mr. Taffee after the 21st of December, on the 27th of December, 1905, when we settled right. The first settlement was no good, we didn’t settle right. That is the time he brought up two witnesses and I asked him if they were witnesses and he said no, and both boys said they wasn’t, but it seems they was. We settled up what he owed me and then deducted what I owed him after what I had credited and balanced the account, and he had $85.71 coming to him and I had a credit of $65.54. I fell in debt to Mr. Taffee$20.17, which I paid February 6th, 1906. I rented another farm that spring, where I am now living. My wife notified Mr. Taffee that I had.

Q. What did you proceed to do in regard to the corn on Mr. Taffee’s farm.

“A. Well, on the 21st of December, in the first place, I asked Mr. Taffee to divide up all the corn so that I could do with my share what I pleased and he could do with his share what he pleased, and he said that there wasn’t a damn ear of corn in that crib belonging to .me on the 21st of December. I went and saw you and you advised me to haul my share. * * *

“After that I took three loads of 180 bushels over to the farm; I measured it ¿II up when I put it in, and there was 390 bushels. At that time I had on the farm three head of cows and four head of young cattle; Mr. Taffee had equally as many as I did and we had raised a few more besides. They were to be fed upon the place. My lease was not to be out until the first of March, 1906. I took away the 180 bushels of corn on the 25th of January, 1906. I had no talk with Mr. Taffee about dividing up after December 21st, 1905, until after my arrest; then they decided to let the two attorneys divide it up; all the goods.

Q. After the 21st of December, 1905, up to the time of your arrest, you did not ask him to divide up the corn or any of the crops on the place ?

“A. No. * * * After my arrest and discharge I and Mr. Taffee had a settlement; we divided up the corn that was left there. * * *

“ Q. Of the corn that you hauled over to the other place, you did not'haul your half by 25 bushels; is that right ?

“A. That is right.”

The defendant, Taffee, swore to the criminal complaint January 27, 1906. Before making the complaint, he testified that he consulted with Mr. Dennison, an attorney at law, who drew the lease in question and who had been his attorney for a year before that:

“Before making the complaint I advised with Mr. Dennison at his office; I told him there had been at least one load of corn moved at this time; I also told him the circumstances, as I had learned them that day, about the corn being gone, the forty-five bushels; Mr. Dennison told me that it was larceny and I had a case against the man, but I said that I would proceed to drop that if he would stop there, as I told him that day in the presence of his neighbor who drew the corn away, that he must not or they must not move any more corn from my f ar m; later when I began to miss corn again I went to Mr. Dennison again. ‘This must be stopped,’ I said; he said, ‘That is the way to stop it, it is larceny, take .him with a warrant for larceny.’ Mr. Dennison advised me the day that the complaint was made that it was larceny; he said that that was the way to stop it, the proper way, and the only course that I had; that it was larceny and that I must stop it that way; I talked with Mr. Dennison about the corn; I told him again about the forty-five bushels that was sold on the 27th of December, 1905, and after that, the next three or four weeks, I couldn’t give the date exactly, I .found several loads more gone from the crib; that is, the crib had that appearance, and I went to Mr. Dennison again and that was his advice and I acted on it. f,

“Q. Would you have made that complaint without the advice of Mr. Dennison ?

“A. No, sir, I would not, I don’t think; I don’t pretend to know anything about the law. I paid Mr. Dennison for the counsel I had on that occasion. It is true that I forbade plaintiff taking any corn out of the crib on the 21st of December, 1905; I again forbade him on the 27th day of December, 1905. I had my lease when I had a talk with Mr. Dennison and he gave me advice, and Mr. Dennison looked over the lease; I don’t think that I made complaint about anything but the corn, and I told him it looked as though about half of the crib was moved —800 bushels; I told Mr. Dennison of my forbidding plaintiff to take away the corn; on the 21st of December, 1905, I claimed to plaintiff that all the corn in the crib was mine. I had the perfect right and control of it under the expressions in this lease. If his duty was fulfilled, one-half of that corn was his, but at that time it was all mine.

“I don’t know whether I have told here all I said to Mr. Dennison but as near as I could remember everything that bears upon the point. I cannot say that I told him something else, I do not remember. I told him that this man was indebted to me nearly $400 or that I was obligated to that amount with him. I don’t think that I swore to Mr. Fleckinger, I said that the corn was mine, and that he had no right to move any of it off from the place, and according to our lease he must not do it. I dispute the testimony of plaintiff so far as the ianguage goes. I told Mr. Dennison about Mr. Fleckinger taking away the 45 bushels of corn, some time after the 27th of December, and he advised me then to take this man for it, but I thought it was so small in amount that I would let it go if he did not take any more.

Q. Did you tell him that you balanced accounts that day?

“A. No, I didn’t tell him anything of the kind. I might have balanced a running account that he was owing me, but the stock, or anything of that kind, wasn’t' settled, and I didn’t tell him it was.

Q. Did you tell him anything about it ?

“A. I don’t remember that I did. I might have, though.”

The magistrate testified:

“ Q. When Mr. Dennison came in there with Mr. Taffee on the first occasion of making the complaint before the warrant was issued, you understood that he was counsel for Mr. Taffee, did you not ?

‘A. Why, he told me that he had been over there and looked this all up, and I relied upon it as evidence in the case as to the condition of affairs, partially, at least, with Mr. Taffee in the case.

“ Q. Didn’t you understand that he was representing Mr. Taffee?

“A. I thought so at the time, yes.

Q. And didn’t he advise Mr. Taffee that he could make the complaint ?

“A. He told me that it was a valid case in the presence of Mr. Taffee.

Q. On the first occasion?

‘A. On the first occasion.

Q. And it was on the strength of what he told you, or partially, that you issued the. warrant ?

“A. Yes, partially.”

At the close of plaintiff’s case, defendant’s counsel made the following motion:

‘Mr. Hatch: At this time we move the court to direct a verdict in. favor of the defendant for the following reasons:

“1. For the reason that the act of the plaintiff in this case, Mr. Fleckinger, under his evidence and under the contract or the lease of the farm, was larceny, the act of the taking of the corn and moving it away after he had been directed by Mr. Taffee not to move it, it was, under the evidence in this case, larceny.

That it appears from the evidence, on the part of the plaintiff, that what defendant did in making the complaint, and the consequent arrest of plaintiff in this case, was done under and by reason of the advice of counsel, Edward J. Dennison, an attorney at law, and that that would constitute a perfect defense in the making of the complaint, and a perfect defense in this case.

“3. That there is no evidence of malice in the making of the complaint, and that there was probable cause in the making of the complaint.”

The motion was overruled and exception taken. At the close of the case, defendant’s counsel renewed the motion with like result. The court submitted the case to the jury, who found for plaintiff, assessing his damages at $906.28. Defendant’s counsel also made a motion for a new trial, the denial of which and the reasons therefor were excepted to and incorporated in the bill of exceptions for review. Among the points argued in the brief for the defendant are the following:

“The court erred in overruling the objection made by the defendant to the question, * How much of a family has Mr. Fleckinger,’ and in again permitting such testimony against the objection of defendant and in refusing to strike it out.

“ The court erred in permitting one of the plaintiff’s witnesses to answer the following question, ‘ State whether or not Mr. Taffee was pleased or not because Mr. Fleckinger was allowed to go on his own recognizance.’

“ The court erred in refusing to direct a verdict for defendant upon the evidence of plaintiff, after plaintiff had rested his case.”

The court did not err in permitting proof as to the family of plaintiff. Davis v. Seeley, 51 Am. St. Rep. 857 (91 Iowa, 583) ; Smith v. Hubbell, 142 Mich. 637.

We think it was error to permit an answer to the question, “ whether or not Mr. Taffee was pleased,” etc. The question was asked of a witness who testified to a conversation with Taffee after the adjournment of the criminal case.

“ I asked him what they had done and he told me that they held it open until Cavanagh got there. He made some further remark about it, but I am not clear as to what he said. I could not swear positively as to what he said. * * * The substance of it was that he was going up to Mr. Deuel’s and see the reason that he let him go. .

“Q. State whether or not Mr. Taffee was pleased or not because Mr. Fleckinger was allowed to go on his own recognizance ?

Mr. Hatch: I object to that as calling for a conclusion.

‘•‘The Court: I think that is the only way he can convey the idea to the jury.

“Mr. Hatch: Exception.

“A. From his appearance I should say that he was not.”

This testimony went beyond giving the appearance of the defendant as evidencing a mental state of pleasure, ill will, anger, or the like, which is permissible. People v. Lilly, 38 Mich. 270; 17 Cyc. pp.91, 150; Thurston v. Wright, 77 Mich. 96. The error in the ruling is that it permitted the witness to state his conclusion as to the reason for the appearance, viz., that he appeared to be displeased “because Mr. Fleckinger was allowed to go on his own recognizance.”

We are also of the opinion that the court erred in denying defendant’s motion for an instructed verdict. Where the facts are undisputed, the question of probable cause is for the court. Rogers v. Olds, 117 Mich. 370. The material facts were undisputed in this case, were fully and fairly stated to counsel, and the complaint made in reliance on his advice. The material facts were, that plaintiff, against the warning of defendant and without his knowledge or consent, removed the corn and converted it to his own use. Under the provisions of the lease, the plaintiff was clearly guilty of an unlawful conversion of the corn, which would have supported a civil action against which he could have made no defense. If plaintiff took the corn with felonious intent, he was guilty of larceny, otherwise not. There was no dispute as to what plaintiff did; he admitted taking the corn, substantially as stated by defendant, and justified his taking by the advice of counsel. The only dispute in the case is as to the effect of what plaintiff did. His counsel advised him, erroneously, as we think, that he had a right to take the corn. Defendant’s counsel advised him, also 'erroneously, in our opinion, that, as a matter of law, the acts of plaintiff constituted larceny. The settlement of the book account had no bearing upon the question, and it was immaterial whether defendant stated it to his counsel or not. The defendant was protected by the advice of counsel, and the motion should have been granted. Poupard v. Dumas, 105 Mich. 326.

Judgment reversed, and new trial granted.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    WIRTH v. WIRTH.
    Wills — Implied Revocation — Divorce.
    A divorce and settlement of their property rights between husband and wife operates ipso facto to revoke his will previously made, and no subsequent act of the testator not accompanied by the solemnities requisite for the making of a valid will will revive it.
    Error to Bay; Collins, J.
    Submitted June 19, 1907.
    (Docket No. 11.)
    Decided October 4, 1907.
    Bertha Wirth presented for probate the last will and testament of Paul L. Wirth, deceased. . The will was disallowed in the probate court, and proponent appealed to the circuit court. There was judgment for contestants on a verdict directed by the court, and proponent brings error.
    Affirmed.

      F. F. Emerick and James H. Davitt, for appellant.

      John C. Weadoek and Lee E. Joslyn, for contestants.
   Montgomery, J.

Paul L. Wirth and proponent, Bertha Wirth, were married in 1876. On April 1, 1892, Paul L. Wirth made the will in question. On April 19 of the same year he deposited the will in the office of the probate judge of Bay county, where it remained until his death on November 22, 1905. The testator and his wife, the proponent, continued to live together as husband and wife until November 8, 1897, when they separated. Proponent applied to the circuit court for Bay county, in chancery, for a divorce, and on May 8, 1899, a decree was granted dissolving the marriage between them. Pending the divorce proceedings an adjustment and division of property was made between them in lieu of alimony, dower, etc., the settlement being evidenced by deeds of conveyance and by recital in the decree. The conveyances consisted of one from testator to proponent of certain property, and of a quitclaim deed from her to her husband of the remaining portion of his real estate.

These facts having appeared on the trial, the proponent offered in rebuttal to show the relationship of the parties all through their married life and up to the time of testator’s death as bearing upon his intention to revoke the will; that after the divorce the testator seemed to retain his affection and respect for proponent and to realize that he alone was to blame for the separation; that he visited her and wrote her letters; and his declaration both'to her and to others in relation to the balance of the property, and a declaration that he desired to have the will in question remain in the probate office and take effect after his death.

This offer of testimony presents the question whether the change in the relations of the parties to the settlement of their property affairs raises a rebuttable presumption of revocation or whether such divorce and settlement operates ipso facto to revoke the will. We think the circuit judge correctly held that the divorce and settlement revoked the will, and that the revocation was made and completed when the decree was signed, and that no subsequent act of the testator not accompanied by the solemnities requisite for the making of a valid will could revive the instrument in question and make it a valid will. The statute, 3 Comp. Laws, §9270, providing the requisites for revocations of a will, contains the following:

“Excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.”

In the case of Lansing v. Haynes, 95 Mich. 16, we had before us for consideration the question of whether the law implies a revocation of a will by the subsequent divorce of a husband and wife, the wife being a legatee, and the settlement of their property rights. It was held in that case, upon full consideration, that such subsequent divorce and settlement of property rights did in law imply a revocation of the will. These facts were not treated as facts raising a presumption of revocation open to be rebutted by testimony, for had such been the determination it would have been our duty to remand the case for a new trial, which was not done, but final judgment was entered in this court, the fact of the marriage and separation being treated as a revocation as matter of law. It was said:

“The question is not to be controlled by a possible presumption, but by the reasonable presumption. The possibility, therefore, that the deceased might have desired that the remainder of his property should go to his divorced wife, cannot be considered in determining the question of an implied revocation in this case.”

We think the case of Lansing v. Haynes must be held decisive of the question here presented. The judgment of the court below is affirmed, with costs.

Blair, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    KOTCHER v. PERRIN.
    1. Mechanics’Liens —Abandonment of Contract — Cost of Completion — Prorating Liens.
    Where a building contractor abandons his contract after the owner has made payments to him without requiring of him the statement as to liens, etc., and the owner completes the building, and the amounts paid by the owner and disbursed by the contractor to laborers and materialmen is ascertainable, that sum, together with the cost of completing the building and the outstanding liens, divided into the contract price, gives the per cent, of each lienor’s claim which he is entitled to recover.
    2. Same — Nonperformance—Waiver—Loss of Rent.
    The owner is not entitled to recoup for loss of rent where he has waived his right to insist upon the completion of the contract on the date stipulated.
    Appeal from Wayne; Donovan, J.
    Submitted June 19, 1907.
    (Docket No. 28.)
    Decided October 4, 1907.
    Bill by Charles W. Kotcher against Fred M. Perrin, Elizabeth A. Perrin, John B. Peterson, Jr., the William Monroe Company, the Pittsburgh Plate Glass Company, Sarah A. Nowers, and Ralph P. Peckham to enforce a mechanics’ lien. Defendants Monroe Company, Glass Company, and Peckham filed answers in the nature of cross-bills to enforce certain liens. From a decree for complainant and cross-complainants, defendants Perrin appeal.
    Modified and affirmed.

      William G. Stuart,, for complainant.

      Wesley L. Nutten, for defendants Perrin.

      Andrew G. Paterson, for' defendant William Monroe Co.

      James'G. McHenry, for defendant Nowers.
   Montgomery, J.

This is a proceeding to foreclose a lien by materialmen. Defendant Peterson agreed to build a house for defendants Perrin complete for $3,750. The contractor failed to complete the house, and the owner after it was abandoned paid $572.17 to complete it. In addition he found liens, including complainant’s, $555.05, defendant William Monroe Co.’s,$432.35, Ralph P. Peck-ham’s, $250, and Pittsburgh Plate Glass Co.’s, $48.48, aggregating $1,285.88. It was claimed by defendant that the contract price was almost fully paid before abandonment of the contract by the contractor, but as the payments to the contractor were made without requiring a sworn statement as to liens, etc., from the contractor, and as the court appears to have been of the opinion that the data for prorating the claims of the lien claimants with the amount disbursed in accordance with the rule in Fairbairn v. Moody, 116 Mich. 61, and Delray Lumber Co v. Keohane, 132 Mich. 17, were not furnished, a decree was given to complainant and William Monroe Co. for the full amount of their respective liens. The defendants Perrin have appealed.

We have not found it difficult to find from the testimony in the case substantially the amount of money paid by the owners and disbursed by the contractor to the' laborers and materialmen. Defendant Perrin gave checks direct for material $1,433.40, not including $200 part proceeds of a check given to the contractor which complainant admits having received for lumber, making a total of $1,633.40. In addition to this other checks were given to materialmen (mainly brick work) amounting to $975. Defendant also gave checks to the contractor amounting to $1,130, but the evidence fails to show that all of this was expended on the job. It is shown, however, that of this sum $938.24 was paid for labor. Peterson testifies that he paid out $3,606, and while this testimony is criticised as hearsay, for the reason that some of the payments were made by the owner, it is obvious that the witness intended by this statement to give the cost to him up to the time he abandoned the work. The testimony of Mr. Monroe that the cost of the building would be $5,000 also corroborates the statements of Peterson and Perrin.

The cost of the building was as follows:

Paid for material, etc. (1st list of checks by owner). $1,633 40
Paid for brick work, etc. (3d list of checks)...... 975 00
Labor not included in above.................... 938 34
Cost of completion after abandonment....... __ 572 17
Liens------------------------------------....... 1,285 88
$5,404 69

Of this amount $159 was for extras. The contract cost, including extras, was $3,909. The actual expenditures shown by the testimony, including liens, amount to $5,404.69. If the contract price be prorated among those entitled to share, each must receive .70232 on the dollar. Complainant furnished a total of $1,055.05 worth of material. His prorata share would be $740.95. He has been paid $500, leaving due him $240.95. William Monroe Co.’s full claim amounts to $432.35, and its prorata share amounts to $303.64.

We have examined the testimony cited in support of the claim that complainant is estopped from claiming more than $630 as the amount of his claim, and do not find the claim sustained. Nor do we think the claim for loss of rent is made out. It is evident that defendant waived the right to insist upon the completion of the contract on May 15th.

The decree will' be modified in accordance with fbip opinion. The defendant Perrin will recover of complainant and defendant William Monroe Co. his costs of this court. The decree of the lower court as to costs will stand affirmed.

Blair, Ostrander, Hooker, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    BLACKMORE v. THOMPSON.
    Cancellation of Instruments — Deeds — Inoompetenoy of Grantor. x
    On a bill to set aside a deed on the ground of incompetency of the grantor, evidence examined, and held, to show that the deed was the intelligent act of the grantor.
    Appeal from Lapeer; Dodds, J., presiding.
    Submitted June 20, 1907.
    (Docket No. 43.)
    Decided October 4, 1907.
    Bill by Ellis Blackmore and others against George E. Thompson to set aside a deed. From a decree dismissing the bill, complainants appeal.
    Affirmed.'

      Stickney & Reed, for complainants.

      Elmer Shumar and Geer, Williams & Halpin for defendant.
   Ostrander, J.

Leonidas Dickérson died after noon and before one o’clock on Monday, July-17, 1905, from injuries received late in the afternoon of the previous Saturday. A horse had kicked a pitchfork, driving the fork handle against his side, producing, probably, a rupture of the liver and other internal injuries. Between nine and ten o’clock, on Monday, he executed a deed of land, running to defendant, an infant. Complainants are decedent’s heirs at law. The single question raised by the pleadings is whether this deed was intelligently executed and delivered. The case is not free from difficulty, and if all that decedent did concerning the disposition of his property was to be referred to the point of time when he executed the conveyance a different conclusion might be required. Apart from the effects of the injury he had suffered, the integrity of the mental processes of decedent is not disputed. The undisputed evidence is that he learned on Sunday morning from his physician that his injuries were fatal, told the physician that he “wanted some one out there to fix up his property,” and named a scrivener of Imlay City, whom the physician undertook to get, and failed because he was not at home. The physician sent no one else because, as he testifies, he did not expect him to collapse so soon. On Monday morning, decedent requested a neighbor to go for a scrivener “to draw some papers,” naming the one who drew the deed. This man, a banker and an old acquaintance, with a friend, drove to the farm, witnessed the execution of the deed, and the banker made the notarial certificate. It is therefore clear that after he learned the character and probable consequences of his injury, and at a time when it is agreed Jie was competent to do so, decedent determined to make some disposition of this land before he died. It is not charged that he was in any manner influenced by others or by another. It is claimed that before the scrivener arrived he was so near death that he could not intelligently make known ór conclude what he proposed to do. The testimony concerning his condition during Monday forenoon is, in some respects, sharply conflicting. The attending physician, who came while the deed was being drawn, the nurse, who arrived shortly after and who met the scrivener some half mile from the house on his return to Imlay City, gave testimony tending to prove that decedent was not conscious when the deed was executed. He did not write his name upon the deed but made his mark, although when in health he was able to write. On the other hand, the witnesses to the deed, while admitting the desperate condition of decedent, are positive in their testimony of his intelligence and of the directions which he gave, with which directions the deed corresponds; they assert that he called for a second reading of the description of the land and that he a,t first talked of also having a life lease of the property made from his grantee to himself. These witnesses are apparently disinterested. Decedent was a bachelor, 68 years old. He had lived in the family of defendant for 14 years. His farm adjoined the Thompson farm and the two farms had been worked together. He had, before he was injured, expressed the purpose to leave the farm to defendant. A careful analysis of the testimony has convinced me that the conveyance was the intelligent act of Mr. Dickerson. The trial judge, who saw the witnesses, reached the same conclusion and entered a decree dismissing the bill of complaint. The decree is affirmed, with costs to -appellee.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


author: Hooker, J.

text:
    MICHIGAN SHOE CO. v. PAUL.
    1. Examination of Witnesses — Harmless Error.
    The exclusion of a question to a witness is harmless where other questions are permitted which substantially cover the same ground.
    2. Evidence — Conclusions—Admissibility.
    In an action on the note of a partnership a question to one of the partners whether he had authority from the firm to sign notes and checks was properly excluded,, since the answer would have involved a conclusion of fact and law.
    3. Same — Contract—Memorand um — Admissibility.
    Where, after testifying to an oral contract, a witness states that the agreement was put in a writing which embodied the whole agreement, but was not signed, the writing may be admitted in evidence as bearing on the truth of the witness’ statement.

      4. Partnership — Incoming Partners —Liabilities —Debts of Old Firm.
    Where an incoming partner denies the liability of the firm for the debts of the original owner of the business, a part of which the latter has paid with assets of the firm, it is not error to instruct the jury that the fact that the incoming partner did not deny his liability on being informed that his partner had signed the firm name to the note sued upon is not of itself a ratification or adoption of said note, but may be considered in determining whether he told his partner he might give the note, and that a verdict cannot be found against the incoming partner , because he was careless in omitting to know what use his partner was making of the partnership funds.
    Error to Lenawee; Lockwood* J.
    Submitted June 21, 1907.
    (Docket No. 88.)
    Decided October 4, 1907.
    Assumpsit by the Michigan Shoe Compaúy against Philip A. Paul and John Zimmerman, copartners as Paul & Zimmerman, upon a promissory note and for goods sold and delivered. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Bird & Sampson, for appellant.

      John A. Riley and Smith, Baldwin & Alexander, for appellees.
   Hooker, J.

The plaintiff, a wholesale shoe dealer, had a patron named Paul, one of the defendants in this cause, at Blissfield, who became indebted to it in the sum of $500.66, when he entered into copartnership with Zimmerman, the other defendant, and they continued the business as equal partners, Zimmerman having purchased a half interest from Paul. The firm continued to patronize the plaintiff. Plaintiff brought two actions against the defendants in justice’s court, one upon a promissory note for $71.13 bearing their signature, the other for the collection of an account for goods furnished them, amounting to #298.80. Judgments were taken, no defense being made. The cases were appealed to the circuit where they were consolidated and Zimmerman was permitted to file a plea of the general issue with a notice of set-off and payment, and a sworn denial of the execution of the note. The trial resulted in a verdict of “no cause” and the plaintiff appealed. The testimony showed that Paul’s indebtedness was reduced by sundry credits based upon his personal and firm checks, to the sum of $141.13, for which he gave firm notes for $70 and $71.13, respectively. The $70 note was afterwards paid by a firm check, while the latter was made the- basis of one of the suits brought. Zimmerman claimed, and appears to have convinced the jury, that he never consented to or knew of the issue of firm checks or notes in payment of Paul’s obligation, and that the former were sufficient in amount to pay the firm account.

Errors assigned relate to the rulings on the introduction of testimony and the charge, and will be considered in their order. One Stoepel was called for the plaintiff, and testified that Zimmerman told him that he did not owe plaintiff a cent, and that he did not ask why the plaintiff had not given the firm credit for a check that they had mailed it, which was conceded not to have been credited to the firm. On redirect plaintiff sought to show that this witness “did not know that Paul was using some one’s else money to pay his debts with.” This was excluded, but he was permitted to state that when he received the checks and notes he nad no knowledge that the person who signed them had no authority to do so, and supposed that he had such authority — which substantially covered the same ground.

The plaintiff called Paul as a witness. He had interposed no defense below, and filed no plea in the circuit, and apparently was willing that firm money should be applied on his personal debts. He was asked by plaintiff’s counsel if he had authority from the firm to sign checks and notes. The court excluded an answer, requiring counsel to prove the facts from which the authority was claimed. There was no error in this, as the answer sought would have involved a conclusion of fact and law. These were then shown, Paul testifying at length as to the copartnership agreement which was admittedly oral. On cross-examination he stated that this agreement was put in a writing which embodied the whole agreement, but was not signed. It was properly admitted as bearing upon the truth of the witness’ statement. The witness was asked on cross-examination:

“ Is your recollection as to the transaction there, is that as accurate as your recollection is what was in that contract you dictated between you and Zimmerman ? ”

The witness answered, “I am perfectly positive about this 14th day of March.” Plaintiff suffered nothing by this answer.

The substance of the plaintiff’s second request was given, which was sufficient. Error is assigned upon the following requests of defendants’ counsel which were given:

“9. The mere fact alone that the defendant Zimmerman did not deny his liability, on being informed that Mr. Paul had signed the name of Paul & Zimmerman to the note, is not of itself an adoption or ratification of said note, but you may consider such fact, if you find it to be a fact, in determining the question of whether Zimmerman told Paul he might give the note.

' “ 17. You cannot find a verdict against the defendant Zimmerman because he was careless, if you find that he was, in omitting to know what use Mr. Paul was making of the partnership funds.”

We are of the opinion that it was proper to give these requests in connection with the rest of the charge, and in the light of the record.

There is no error, and the judgment is affirmed.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


author: Grant, J.

text:
    IDEAL MANUFACTURING CO. v. LUDWIG. In re HAMLYN.
    Injunction — Violation—Contempt—Strikes.
    Where striking employés of a manufacturing company, against whom an injunction has issued restraining them from interfering with the company’s nonunion employés, follow a nonunion employé who is under the escort of a policeman, and address him at a time and under circumstances such that peaceable solicitation is impossible, a claim that their purpose was to peaceably solicit the employé to join the union is a mere colorable pretext to justify their unlawful conduct, and a conviction of contempt is proper. Ideal Manufacturing Go. v. Ludwig, ante, 188, followed.
    Certiorari to Wayne; Brooke and Mandell, JJ.
    Submitted July 13, 1907.
    (Docket No. 128.)
    Decided October 4, 1907.
    Bill by the Ideal Manufacturing Company against Martin Ludwig and others to enjoin an interference with complainant’s business: On. petition, Charles Hamlyn was adjudged guilty of contempt in violating the temporary injunction, and sentenced to imprisonment for 10 days in the county jail.
    Affirmed.

      George F. Monaghan and Peter J. Monaghan, for complainant.

      Dohany & Vohany, for respondent.
   Grant, J.

This case is the companion of Ideal Manufacturing Co. v.Ludwig, ante, 133. Respondent Hamlyn was a member of the union and was a part of the same hostile crowd which interfered, unlawfully and in contempt of the court’s decree, with the nonunion employés of that company. The contempt proceedings of both Ludwig and Hamlyn were heard together, and their acts are substantially the same, — the language of each being somewhat different.

The learned circuit judge filed one opinion holding both guilty of contempt. After describing what the defendant did, the court below said:

“Under these conditions the respondent, after following Hardy with the crowd for more than a block, came up close to him and the policeman and addressed Hardy. He claims his purpose was to peaceably solicit Hardy to join the union. As said in the case of Ludwig, peaceable solicitation at that time and under those circumstanpes was impossible. The claim of the respondent Hamlyn is a mere colorable pretext to justify his unlawful conduct.”

The court had jurisdiction, and there was ample evidence to sustain its finding. The case is ruled by the Ludwig Case. We find no error upon the record-, and the judgment is affirmed.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.


author: Per Curiam.

text:
    MONTPELIER SAVINGS BANK & TRUST CO. v. QUINN.
    Municipal Corporations — Public Funds — Application — Judgment-Regularity of Assessment.
    Where the supervisors in fact spread a tax for the purpose of paying a judgment against a city, and the city treasurer so understood and collected the tax, and kept it separate from the taxes for other city purposes with full knowledge of the purpose for which it was collected and to whom it belonged, it is his duty to pay it over as required by section 3983,1 Comp. Laws, though the provisions of the statutes were not strictly observed by the assessing officers in spreading the tax.
    Mandamus by the Montpelier Savings Bank & Trust Company to compel James Quinn, treasurer of the city of Au Sable, to turn over certain moneys collected for the payment of a judgment.
    Submitted July 9, 1907.
    (Calendar No. 21,643.)
    Writ granted October 4, 1907.
    Moore, Brown, Miller & Ladd, for relator.

      Charles B. Henry, for respondent.
   Per Curiam.

Application for writ of mandamus to compel respondent to turn over certain moneys, alleged to have been collected and to be held by him in his official capacity, for the purpose of paying a judgment, rendered in the circuit court for Iosco* county November 7, 1896, in favor of relator and against the city of Au Sable, for $1,119.27 damages, and costs taxed at $43.91.

On October 3, 1902, notice pursuant to section Í0482, 3 Comp. Laws, was served upon the supervisors and assessing officers of the city, requiring them to assess the amount due upon the judgment upon the next, 1902, tax rolls and to deliver to the city clerk the statement required by said section.

The tax roll of the first ward, for 1902, contains no reference to city taxes except the usual column, “General City Tax.” The warrant of the supervisor to the city treasurer, however, itemizes the taxes to be collected, etc., as follows: “Two hundred and sixty-five dollars and fifty-nine cents ($265.59) for city purposes.” “Five hundred and fifty-seven dollars and seven cents ($557.07) for judgment against city.” The recapitulation states the total of “ City tax and judgment” as $824.10.

The second ward tax roll contains no reference to the judgment preceding the warrant, which contains the following, “ Eight hundred and fifty-six dollars and ninety cents ($856.90) for judgment against city; ”• and $408.70 for “city purposes.”

In the third ward roll the words “ and judgment tax ” are added to the words, “ general city tax,” at the head of column 12, and the warrant directs the collection of “$158.74 for judgment tax.”

Issues having been framed and tried before Judge Sharpe, sitting in the Iosco circuit, he made the following findings, to which exceptions were duly taken by respondent’s counsel:

“ 4th. Whether the amount of such judgment, with interest, amounting in all to $1,572.71, was spread upon the tax rolls of the city of Au Sable for the year 1902 ?

“A. Yes. There was nothing in the tax roll, however, to identify it as the judgment in question. The warrant authorized the collection of the amount of the judgment as a ‘ Judgment against the city.’

“5th. Whether James Quinn, treasurer of the city of Au Sable, collected any of the- amounts so spread upon the said tax rolls and, if he did, what amount was collected by him ?

“A. Yes. Respondent collected upon said tax rolls $991.73 of the amount spread as a judgment against the city.

“6th. Whether the said James Quinn, city treasurer, was ever authorized, directed or required in any manner to collect said judgment or any part thereof, and pay the same to the Montpelier Savings Bank & Trust Co.?

“A. He was authorized to and did collect, as stated in answer to issue five. He was not authorized or directed to pay the amount thus collected to relator.

“7th. What amount, if any, has James Quinn, city treasurer, now in his possession or under his control, collected upon the tax rolls of the city of Ad Sable for the year 1902 to apply upon said judgment ?

“A. $991.73 in his hands on March 30, 1906.”

It is clear that the provisions of the statute were not strictly observed by the assessing officers, and, so far as filing the statement with the city clerk is concerned, were not observed at all. But we think it equally clear from the testimony that the supervisors did in fact spread this tax upon the rolls and respondent so understood and collected the tax, at least to the amount found by the circuit judge, and kept it separate from the taxes for other city purposes, with full knowledge of the purpose for which it was collected and to whom it belonged. There was abundant testimony to sustain the findings of the circuit judge, and it is the duty of respondent to pay the money over, according to the requirements of the statute. 1 Comp. Laws, § 3983.

The writ of mandamus will issue as prayed, with costs to relator of the proceedings in the circuit as well as in this court.


author: Cooley J.

text:
    Charles Rice and another v. The People.

      Informations in Criminal Cases: When more than one fled: Bights qf prisoner: Practice. The Prosecuting Attorney put on file two informations in the same case, one of which did not contain certain words supposed to be essential in charging the offense, whilst the other was deemed correct. The party was tried on the latter, but the former was copied into the record by the Clerk, in making his return. It was proposed to establish these facts by affidavits. Held, that it does not rest with the Prosecuting Attorney to say which shall be considered as the record in the case, but that all doubts on the subject should be solved in favor of the prisoner, Held, further, that the return filed in this Court was the proper record on which the argument must be had.

      Jurat signed by initials. Statutory offense, how described. The information in this ease charged defendants below with an assault “with intent to kill and murder,” omitting the words “feloniously, wilfully, and of malice aforethought.” It was sworn to before the County Clerk, who in signing the jurat gave the initials only of his Christian name. Held, that the signing by the Clerk was sufficient, and that the decisions in this State under certain election cases, declaring that when such initials were used it was no name, would not be extended to embrace other cases. Held, further, that the offense being a statutory one, was sufficiently charged in the words of the statute.

      Heard October 25th.

      Decided October 30th.

    Error to Oakland Circuit.
    The information in this case charged plaintiffs in error with haying assaulted, with intent to kill and murder, one Charles Parsons. The information was sworn to before the Clerk who signed his name as follows: “ J. D. Bate-man, Clerk.”
    A plea of not guilty was entered. The jury brought in a yerdict of guilty, and sentence was passed.

      The following errors were assigned:

      “First, That the information is insufficient in this, that it does not charge that said Charles Rice and Harlow Woodard, aforesaid, wilfully, and with malice aforethought, intended to kill and murder Charles Parsons, the person upon whom the assault is charged to have been by them, the said Rice and Woodard, committed.

      “Second, That the said information does not charge them, the said Charles Rice and Harlow Woodard, with the commission of any offense for the commission of which they could or should be, by the laws of the State of Michigan, sentenced to imprisonment in the State Prison; the said information in law being an information for assault and battery only.

      “Third, That the said information is insufficient in this, to wit: the verification thereto is not authenticated with the name of the Clerk, the person by whom the oath purports to have been administered.”

      O. F. Wisner and W. B. Jackson, for plaintiffs in error.
    1. The Statute under which plaintiffs in error were convicted is, “ If any person shall assault another with intent to commit the crime of murder, every such offender shall be punished by imprisonment in the State Prison for life, or any number of years.”' — -2 Gomp. T. § 5724.
    Indictments (informations) for the “ crime of murder,” must charge that “ defendant did wilfully, and of his malice aforethought, kill and murder.” — 2 Gomp. L. § 6047.
    We submit that under the statutes, an information for assault with intent to commit the crime of murder, must contain the necessary averments to show that had death ensued, the killing would have been murder.
    Malice aforethought is an essential ingredient of the offense of assault with intent to commit murder, hence necessary to be averred in the information. — 2 Mich. 212.

      In prosecutions for assault with intent to murder, the actual intent to kill must be found, and that under circumstances which would make the killing murder. — Ibid.
    Now if this be so, it was necessary to prove that plaintiffs in' error wilfully and of their malice aforethought intended to kill and murder Charles Parsons; and if necessary to prove it, it must be necessary to aver it. An indictment must aver everything necessary to constitute the offense. — 5 JDenio, Y6 ; 13 Wend. 311; 31 Me. 401; 5 Ohio State JR. 280; 11 Humph. 16 Y.
    The information in this case is manifestly insufficient.
    In the case in Indiana, this very question arose upon an indictment precisely like the information in' this case, and the Court held it properly quashed. See also — 3 JEng. (Arh.) 400; 19 Miss. (4 JBennett,) 212; Am. Or. Law, 399; 1 Arehb. Or. Law. 301; 3 JEng. 400 ; 1 Scam. 285.
    In every precedent to be found of indictments for assaults with intent to commit murder, the words “wilfully,” and of “ malice aforethought ” are contained. — 2 Archb. Gr. Law, 1,19; 3 Chit. Or. Law, 828 ; Wharton's Free. 119, 125, 126, 12Y.
    2. The information is simply one for assault and battery. — 4 Farh. Gr. F. 61; Id. 18Y.
    3. The information is insufficient, for the reason that the verification thereto is not authenticated with the name of the clerk, the person by whom the oath purports to have been administered. “ J. D. Bateman ” is not the clerk.

      A. Williams, Attorney General, for the People.
    J. The judgment .cannot now be set aside or reversed for either of said errors assigned upon the information.

      a. The punishment of said offense being declared by statute, and the information describing it in the language of the statute, it is, after verdict, sufficient. — 2
      Comp. L. § 6059; 1 Doug. 42; Archb. Cr. FI. and Mo. 51-2-3-4; 6 McLean B. 56; Laws 1849, _p. 391-2.

      b. The respondents’ objections relate to the form, and not to the substance of the information. — 5 Wend. 10, 19, 20; Ld. 425; 3 Denio, 212, 213; 8 Barb. Sup. Ct. 548, 550, 551; 1 Archb. Cr. PI. p. 118, 2, Mote 2; See Form, Bouv. Law Die.; 2 Seld. 50.

      c. The objections being to the form of the information, apparent upon its face, it must have been taken by demurrer, or motion to quash the same before the jury were sworn, and not afterwards. — Comp. L. § 6055.
    Therefore, when the jury were sworn the objection aforesaid, not before having been made by the respondents, as required by the statute, were then waived forever. Comp. L. § 6055 ; 1 Chit. Cr. L. 423 to 437'; 1 Chit. PI. 440, 441; 10 Mich. 372.
    2. Nor could the information, at any stage of the proceedings, or in any way, in the court below, have been quashed or deemed invalid, or the trial, judgment, or other proceedings thereon be affected by reason of the omission of the following words, to wit: “ wilfully and with malice aforethought; ” because,

      a. They are “words of similar import” with the following, to wit: “feloniously” and “with force and arms.” Comp. L. § 6043; 9 Met. 268, 270 ; 5 Whart. 427; See Webster's Die.; Bouv. Law Die.; Burrell's Law Die.

      b. And, also, because they are, at most, “defects or imperfections in matters of form, which ” do “ not tend to the prejudice of the defendants.” Not having been, as they could not be, by reason of their absence, surprised, misled, left in doubt, or lost advantage, either as to the people’s case, or the preparation of their defense, their absence constitutes neither a “ defect or imperfection in matters of form” which did tend to the prejudice of the defendants. Hence, in nowise was or is there, for the defendants, advantage to be now taken. — Comp. F. § 6043 ; 2 Sold. 50.
    3. The word “ murder,” having acquired a peculiar meaning of its own, is an artistic word; and signifies, and only signifies, the act of unlawfully killing a reasonable creature, with premeditated malice, by a person of the age of discretion. — 2 Archb. Cr. FI. 206, Noto; 5 FI. Com. 195.
    The information charges the respondent with an “ assault * * * with intent * * * to kill and murder.” It will be seen that every word in the statutes declaring the punishment of said offense, which has acquired any artistic or peculiar meaning, is used in the information. Thus following the language of the statute is sufficient.— Comp. F. § 6059 ; 1 Doug. 42; Archb. Cr. FI. and Mo. 51 to 53; 1 Wharton’s Cr. L. §364, 469; 1 Comst. 3V9, 382.
    4. But in cases where the offense is created, or its punishment declared by statute, the information need not necessarily follow the exact language of the statute. If a word, substituted in the information for one word used in the statute, is equivalent to, or of more extensive signification than the statutory word, and includes it, the information will be good. Indeed, it is sufficient that the information, with reasonable certainty and precision, charges the defendants to have committed or omitted the acts under the circumstances and with the intention mentioned in the statute. — Archb. Cr. FI. and Mo. 51 to 54; 1 Whar. Cr. L. § 364, 366, 369; 1 Chit. FI. 23V, 238, 239.
    As a further test, we submit that the information in this case is so full and certain, both as to its form and subject matter, that the respondents might plead their trial and conviction upon it, in bar to any information which might afterwards be filed against them, charging them with the same offense, or simple assault. — 1 Chit. Cr. L. 451; 1 Comst. 3V9, 381.

      The foregoing positions also answer, if any be needed, the objection contemplated by the third assignment of error touching the verification of the information.
    5. The Circuit Court being a court of general jurisdiction (Sec. 8, Art. 6, Const, of Mich.), the respondents did, as was their privilege to do, by their plea in bar of not guilty, and going to trial without objection, waive their right to any and all advantage to this, or any other objection that might have been pleaded in abatement, or constituted ground for quashing the information, thus giving the Court ample jurisdiction both as to persons and subject matter. — Comp. L. §§6043, 6055 ; 2 Seld. 50; 1 Bishop's Cr. L. §§ 650, 649, 672.
    6. As nothing to the contrary appears on the record, certainly the presumption for this Court is that the verification of the information was “ authenticated with the name of the clerk, the person by whom the oath purports to have been administered; ” for courts will always take judicial notice of its own officers and records, and be bound by them. Till duly amended the record will be conclusive. 1 Greenl. JEv. § § 5, 6.
    Finally, after verdict, the court is ex-officio bound to give such judgment as appears upon the whole record to be proper, without regard to the issue found or confessed, or any imperfection in the prayer of judgment on either side; for the rule seems to be, that, after verdict, an expression must be construed in such a sense as will sustain the verdict. — (l Chit. PI. 237, 238, 239.) Enlarged upon as this general rule is by our statutes — ( Comp. L. §§ 5724, 6043, 6055, 6059,) — we fail to see sufficient cause for reversing or setting aside the said judgment.
   Cooley J.

A preliminary question is raised in this case whether the return sent up by the Clerk of the Court below embodies the true record.

It appears from the statement of the Prosecuting Attorney that to protect the people against the consequences resulting from the loss of important papers, he has sometimes placed duplicate informations on filé, that if one was lost he might make use of the other; that he did so in the present case, but that while one of them was correct, the other omitted certain words which are supposed to be essential to its validity; that the plaintiffs in error were tried and convicted on the correct information, but that the other was copied into the record by the clerk in making his return; and these facts it is proposed to prove by the affidavits of the Prosecuting Attorney and Clerk.

It -can hardly be seriously contended that there can be two informations properly on file in any case; and a prosecuting officer who adopts the practice stated, must be prepared to support his case upon either. It certainly can not rest with him, at any particular stage of the case, to say which shall and which shall not constitute the record; much less can that question be made to rest upon the oral testimony, which must always necessarily be uncertain, as to which of the two happened to be taken up by the prosecuting officer when the prisoner was arraigned or tried. Under the •general rule relating to criminal proceedings — that doubts are to be solved in favor of the accused —he has a right to point out and rely upon the defects in either; and the clerk was right in this case in sending up with the return the information supposed to be defective.

This information is in the following words:

“THE STATE OE MICHIGAN, ) ^•SS. County of Oakland )
“ The Circuit Court for the County of Oakland. Michael E. Crofoot, Prosecuting Attorney for the County of Oakland aforesaid, for and in behalf of the People of the State of Michigan, comes into said Court in the 'March term thereof, A. D. 1866, and gives it here to understand and be informed, that Charles Rice, Harlow Woodard and George Hughes, late of the township of Pontiac, in said county, heretofore, to wit, on the twenty-first day of December, A. D. 1865, at the township of Pontiac aforesaid, and in the county aforesaid, with force and arms in and upon one Charles Parsons, then and there being, did make an assault, and him, the said Charles Parsons, then and there did beat, wound and bruise, with intent, him, the said Charles Parsons, then and there, to‘kill and murder, and other injuries to him, the said Charles Parsons, then and there did, contrary to the statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan.
“MICHAEL E. CROFOOT,
"Prosecuting Attorney for the County of Oakland."
“Charles Parsons being duly sworn, deposeth and says that he knows the contents of the above information, and he verily believes the same to be true, as therein set forth.
“ CHARLES PARSONS.”
“Sworn and subscribed before me, at Pontiac, this sixth day of March, A, D. 1866.
11 J. D. BATEMAN,
Clerk."

One objection to this information is, that no name is attached to the jurat.

This objection is based upon certain decisions in this State — People v. Tisdale, 1 Doug. Mich. 59 ; People v. Riggins, 3 Mich. 233 — which have laid down the rule in election cases, that ballots which contain only the initials of the person voted for cannot be counted as they are, nor aided by parol evidence. We have no disposition to make these decisions embrace other cases, nor should we be warranted by authority in doing so.

The principal objection, however, is that the information does not charge the offense to have been committed “ feloniously, wilfully, and of malice aforethought,” after the common law forms. If the case were to be disposed of exclusively upon the common law authorities, we should find it necessary to examine them with some care before making a decision; but we have no doubt that if the information would be defective as a common law pleading, there is still no necessity for the omitted wordá under our statute.

The information charges the defendants with an assault with intent to murder. Murder is an offense which the law defines; one of the essential ingredients of which is malice aforethought. To charge an intent to kill and murder, is to charge an intent to kill under circumstances which would make the killing amount to murder; that is, with premeditated malice. No further words are necessary to inform the accused of the nature of the charge against him; and if more are essential for any purpose, it can only be for technical reasons. The statute, Comp. h. § 6043, in express terms has dispensed with the necessity of employing the word “ feloniously,” or “ with force and arms,” or “ any words of similar import;” by which last phrase we must understand, words employed for similar technical reasons as the words mentioned, and which are not essential to a clear understanding of the charge. But it is not necessary to decide whether this statute would dispense with the use of the words “with malice aforethought,” since another statute — Comp. L. §6059 — provides that, “"When the offense charged has been created by any statute, or the punishment of such offense has been declared by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offense in the words of the statute.”

The offense as described in the statute is, an assault ££with intent to commit the crime of murder;” and this is the offense as set out in the information. It is not essential that, in describing the offense, the precise words employed in the statute should be used; other words of equivalent meaning- are sufficient — People v. Kent, 1 Doug. Mich. 42 — except perhaps in cases where certain words of art may by long usage have become indispensable to a description. But in this case the statutory words are employed, and we have ño doubt the description of the offense is sufficient as it stands in the information.

We think the judgment of the Court below was correct, and it must be affirmed.

The other Justices concurred.


author: Campbell J. Cooley J.

text:
    Andrew Climer v. Daniel Hovey and another.

      Mistake in contract, when Court of Hqmtqj will cmrect. In this case a bill to correct a mistake, by making a contract apply to lands which had been omitted from it, instead of those which were mentioned in it, and to enforce the contract when corrected, was dismissed; the parties not having acted upon the contract, and there being no equitable circumstances requiring such correction.

      Heard October 9th.

      Decided October 30th.
    Appeal from Berrien Circuit, in chancery.
    This was a bill for specific performance.
    The cause was heard on the pleadings and proofs, and the bill was dismissed.
    The facts of the case, and the allegations in the pleadings, so far as may be necessary to an understanding of the questions decided, are stated in the arguments of the counsel, and the opinion of the Court.

      Muzzy & Knox, for complainant.
    The bill alleges that under the contract the complainant took possession, cut and sold timber, and contracted for the sale of more wood and timber. That he offered to pay tl)e amount due, and more, and requested a deed for the two-ninths, which was refused. Also, that the defendant, Hovey, had conveyed the premises to defendant, Curtis.
    The answer admits the making of the contract, the sale to Curtis, the taking possession by complainant, and cutting and selling timber, and the mistake as to the range set forth in the bill; and sets up that the contract was not signed by the complainant at the time of its delivery, and was not stamped; denies that complainant tendered money or requested a deed, and insists that the contract was made at the dictation of complainant, merely to be shown to evil disposed persons, and to restrain them from trespassing.
    1. The proofs show that the contract was written by defendant Hovey, and we believe the preponderance of the evidence is, that it was signed by both parties at the same time. It is immaterial whether the contract was ever signed by Hovey. —14 Johns. 484 ; IQ Me. 92; 4 Mich. 570, 572.
    2. The proofs show that a stamp was afterwards placed on the contract, which was sufficient. — Act of Congress of June 80, 1864, § 163.
    3. There is a conflict in the testimony, whether complainant offered to pay the amount due, or demanded a deed. We think the averments - that complainant offered to pay and requested a deed, are siqDportod by the proofs.
    It appearing that defendant Hovey had conveyed the land to Curtis, and had signified his intention not to convey to complainant, a tender was not necessary; especially, as by the terms of the contract, Hovey was to notify Climer when he would deed. A failure of complainant to tender performance only affects the question ' of costs. — 1 Mich. 9.

      E. Bacon, for defendants.
    1. The complainant cannot haye specific performance if the contract is unsettled. The contract is unsettled in this, that no price is fixed for Hovey’s present interest in the land, also as to who the heirs were and who might give the notice ; also as to what was to be done in case Hovey failed to get the heirs’ title; also as to what youngest heir is meant, and when he would become twenty-one years of age. —14 Peters, 77 ; 5 Munf. 296 ; Harrington Oh. 373, 124; 3 HawJcs, 628.
    2. The complainant cannot have specific performance if the contract is uncertain. The contract is uncertain because it puts no obligation upon Hovey to convey except such as should entirely depend upon his will and convenience. He was not to convey and there was to be no sale until he should see fit to give Climer a notice of his readiness. Climer was in no event to purchase unless it suited his convenience to do so. — 2 Story PSq. Jur. § 767 ; Benedict v. Pinch, 1 Johns. Ch. B. 370; 1 McPean, 120; FitzpatricJc v. Beaty, 1 Qilm. 454; Montgomery v. Norris 1 How. Miss. B. 499.
    3. The complainant cannot have specific performance if the contract is not mutual. Climer is not bound to take, purchase or pay for anything unless it suited his convenience to do so. Nothing is said or intended in the contract about Climer taking or purchasing Hovey’s present interest or the six-ninths of the land on any terms. There is no mutuality, because at the time this bill was filed Climer could have refused to do anything under the contract, and yet on the existing state of things Hovey could neither file a bill for specific performance or have any other remedy, for no notice of Hovey’s readiness to convey exists, and nothing about any heir becoming twenty-one years of age appears, and a refusal to purchase would be all Climer needed to free himself from all obligations under any contract to take the land as soon as convenient.— Harrington, Ch. 420 ; 1 Johns, Ch. 281.
    4. The complainant cannot have specific ■ performance where his right is dependent upon a condition precedent, which is unfulfilled.
    By express terms of the contract, Hovey’s obligation to sell and convey are conditioned according to his future will and decision as to the convenience of conveying, and he has decided not to convey.
    By express terms of the contract there was to be no sale, purchase or payment until after Climer was notified that Hovey was ready to give a deed. No such notice has been given. By express terms of the contract Hovey was not to convey anything until as soon as convenient, after the youngest heir became 21 years of age. Nothing is said in pleadings or evidence, tending to show that any heir has become twenty - one years of age. — 1 Black. Com. p. 154 ; 1 Ham. 14.
    5. The complainant cannot have specific performance because the contract is voluntary and without consideration. There was no payment and no legal obligation upon anybody to make any payment, nor did Hovey gain anything by the contract, it has only been a means of serious loss to him by having the land stripped of timber.— 1 Story JEq. Jur. § 987; 3 Cow. 445; 6 Ham. 383 ; 1 Leigh, 36.
    6. The contract did not give possession. Stripping the land of timber gave no equity. At law Climer could recover no damages, and if compensation would put him in statu quo he cannot have a specific performance. — 7 Cow. 229; 3 Wend.JlOá; 3 A. H. Marsh. 554 ; 2 Litt. 124.
   Campbell J.

Complainant filed his bill for the specific performance of a contract for the sale of certain lands. The contract was in writing, and describes certain parcels, specifically, but the hill alleges that in reducing it to writing the parties made a mistake, and described the wrong land. Hovey is the party who is charged with having contracted to convey. The bill charges the land to have been conveyed to Curtis since the contract, with knowledge of complainant’s rights. No payments are alleged, and no act of part - performance.

Both defendants rely upon the Statute of Frauds, and Hovey sets up that the contract was not intended or delivered as a complete contract of sale, but was given merely to enable Climer, his agent, to keep off trespassers.

The statute (Chap. 104, §3179, Comp. L.) provides that every contract for the sale of lands shall be void, unless the contract or some note or memorandum thereof be in writing, and signed by the party by whom the sale is to be made.

In this case the contract and its terms are signed by the vendor in due form, but there is no reference in it to the lands in controversy. It is sought by parol evidence to substitute one set of lands for another. But it is quite evident that no amount of parol evidence can bring any written contract into being, which will cover the lands in question. We are, therefore, brought down to the simple inquiry whether mere mistake, where neither party has parted with or done any thing beyond signing an executory contract for one description of land, can authorize a Court of Chancery to enforce a parol contract, by applying the terms written concerning one estate, to another not referred to in writing.

Where fraud, or part performance, or other recognized equities create an equitable estoppel, that may in many cases authorize the correction of instruments upon which parties have acted in good faith. But the jurisdiction in these cases does not spring from mistake alone, but from a mistake that has been acted on. And where there are none of these collateral circumstances, it is difficult to perceive wherein the correction of a contract by parol evidence differs from the enforcement of an agreement resting entirely in parol. For where a contract is partly written and partly verbal, it has always been regarded as within the prohibitions of the statute. Where a defendant resists the specific performance of an agreement on the ground that some mistake has arisen concerning its terms, a court will sometimes make it a condition of giving relief to a complainant, that he accept the variation; but even then it will not usually compel him to do so, but leaves it optional whether he will have that relief or be left to his legal remedy. For it is always proper to refuse relief on a bill for specific performance, where equitable circumstances prohibit it. The American cases, going somewhat beyond the English authorities in this direction, have in some instances given relief to a party complainant who set up a case of mistake, requiring terms or subjects to be stricken out of his contract, because the whole residuary agreement as enforced is comprehended within the written provisions, and therefore the statute is not violated by the enforcement of parol provisions. But every parcel of land or interest imported into a contract, which does not refer in any way thereto, must be thus affected by unwritten stipulations; and the attempt to do this is nothing else than an attempt to put parol agreements on the same footing with writings*

Where equitable circumstances are made the basis of action, the Courts, if they give relief, do it On the ground that the case is thereby taken out of the statute. But where the case stands on no such equities, tbe statute must apply, or must become of very little service. In the present case the mistake goes to the entire contract, and there is no portion of the written agreement which could stand alone if the subject matter on which the error arose should be stricken out.

In the learned American note to Woollam v. Hearn, 2 Lead. Cas. in Eq. Pt. 1, p. 541 and seq. (Ed. of 1852 ) the subject under consideration is very clearly discussed. It is said that the Statute of Frauds does not declare that parol evidence shall be inadmissible, but only “ that it shall have no effect in passing or creating a trust or estate in land.” And the case of Elder v. Elder, 10 Maine R. 80, is referred to as containing a very satisfactory elucidation of the whole difficulty. The English cases are also referred to, which unquestionably have been very consistent in refusing relief in cases like the present. And the few American cases which have been supposed to sanction a less certain rule are mostly, if not entirely, cases where there was something beyond a bald case of mistaken description. It is possible that the distinction has been sometimes lost sight of, between refusing to enforce a mistaken contract, and creating by parol a substituted agreement in lieu of a writing. But usually there have been such acts in reliance upon the supposed, but mistaken, state of things as would raise independent equities. But it would not be singular if the law had been sometimes overlooked, in the anxiety of courts to place parties where they had reason to expect they would be.

As we find nothing in this case to show that any act has been done or left undone, which can be regarded as having been authorized or expected under the contract as it should have been, to the detriment or loss of the party relying om it, we think it must stand as an agreement within the express terms of the statute, and that complainant is not entitled to relief.

We have not deemed it necessary to pass upon the facts, upon some of which the witnesses are directly in conflict. The case is one by no means free from suspicion, and there is very strong reason to believe that Hovey did not suppose he was making a definite bargain.

But as the objection taken under the statute disposes of the entire case, the testimony becomes immaterial.

The decree must be reversed, and the bill dismissed, with costs of both Courts.

Martin Ch. J. concurred in the result.

Cooley J.

I do not think that on the facts appearing, a case sufficiently clear is made to warrant specific performance. As to the power of the Court to correct a mistake in a contract, in a suit to enforce it, I express no opinion.

Christiancy J. concurred.