author: Stone, J.

text:
    PENNSYLVANIA RUBBER CO. v. DETROIT SHIPBUILDING CO.
    1. Saues — Acceptance—Breach of Contract — Warranties.
    Failure or omission to reject tiling furnished for two boats, and laid by the vendor under the supervision of defendant’s architect, was equivalent to an acceptance of the materials and workmanship if the defects were obvious.
    2. Same — Waiver—Quaiity.
    Where defendant contractor purchased rubber tiling to be used in the construction of certain boats, subject to approval by the architect, he might waive the provisions of the contract calling for such approval.
    3. Same — Contracts—Waiver—Acceptance.
    Evidence tending to show that tiling used in the construction of two boats was purchased by defendant under a contract providing for approval of its architect, that complaints were made by defendant’s agents during the progress of the work, that plaintiff refused to furnish better work or materials and offered to remove the materials if unsatisfactory, that no actual rejection of the materials took place before the boats were turned over to the owner for use, held, to present an issue of fact for the jury whether an acceptance was shown.'
    4. Same — Acceptance—Waiver—Payment.
    There was no warranty that would survive approval and acceptance under a contract providing for payment within thirty days after completion and acceptance.
    5. Same — Contract—Warranty.
    A contract requiring that rubber tiling to he furnished should be water tight did not' require compliance, but the material should he laid so as to prevent water from leaking through in sufficient quantity to cause damage to materials and substances underneath.
    Error to Wayne; Shepard, J., presiding.
    Submitted April 8, 1915.
    (Docket No. 28.)
    Decided June 7, 1915.
    Assumpsit by the Pennsylvania Rubber Company against the Detroit Shipbuilding Company for a balance due for work, labor and materials. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Angelí, Bodman & Turner, for appellant.

      Anderson, Wilcox & Lacy and Walters & Hieles, for appellee.

      As to waiver by use of right to rescind for breach of warranty or noncompliance with contract, see note in 36 L. R. A. (N. S.) 468.

   Stone, J.

This litigation grows out of the fact that in the fall of 1909 the parties made two contracts for the furnishing and, installation by the plaintiff of so-called rubber tiling upon two steamers then under construction by the defendant. Except that one contract was for steamer known as No. 180, afterwards named the Rochester, and the other for steamer known as No. 181, afterwards named the Octorara, they were identical. The dispute involves substantially the same questions as to both steamers. A suit was brought by plaintiff upon each contract, for failure to pay the agreed price., The pleas and notices were substantially the same in each case. At the trial the cases were consolidated. The declarations count upon the contracts, and allege performance and nonpayment of the contract price. The pl'eas are the general issue with notice of recoupment. The jury under the charge found a verdict for the full amount claimed by plaintiff, judgment was entered accordingly, and the defendant has brought error.

The assignments of error are based on the refusal to give defendant’s requests to charge, and on some language of the court in the charge as given. In 1909 the defendant was building its steamer No 180 (the Rochester) for the Richelieu & Ontario Navigation Company, and its steamer No. 181 (the Octorara) for the Erie & Western Transportation Company. The Rochester was a passenger steamer which ran between Youngstown and Ogdensburg, N. Y. The Octorara was a freight and passenger steamer of the Anchor Line, running between Buffalo and Duluth. Prior to the making of the contracts in question, the defendant had contracted with the plaintiff for the rubber tiling laid on the steamer City of Cleveland, which had been satisfactory and had been paid for, and the relations of the parties had been friendly. In the instant cases the contracts were dated September 30, 1909, and consisted of written orders and acceptances. On steamer No. 180, the order was for furnishing—

“all interlocking rubber tiling required on steamer No. 180, laid and finished complete. Workmanship and material to be of the best quality. Designs to be selected by this company. * * * Price 75 cents per square foot laid. Terms 30 days net, after completion and approval by architect, and acceptance by this company.”

Plaintiff did the work on the Rochester in February and March, 1910, and on the Octorara in April, 1910. Frank E. Kirby was the architect of the Octorara, and Louis Keil of the Rochester. Following the acceptance of the two contracts, the defendant submitted to the plaintiff color designs for the two boats. It is undisputed that at this time, in the rubber-tiling business, two types of tiling were manufactured, one with a space between each block, or unit, to allow for expansion and to prevent “buckling;” the other on straight lines and close fitting, with space left around the edges close to the wall for the expansion. The type manufactured by plaintiff was the open-jointed type, which had been previously laid on the City of .Cleveland. Upon the trial, on behalf of the plaintiff there was testimony in detail as to the manufacture of the tiling at its factory at Jeannette, Pa., and that the rubber tiling shipped to the defendant was of the best quality, and exactly according to the terms of the contract. The manager of the tiling department of the plaintiff testified, among other things, as follows:

“The tiling as made by the Pennsylvania Rubber Company is made to fit loose at the time of manufacture. That allowance is made on account of the exceptional expansive condition of the material. I could explain that by saying it is something in the nature of linoleum; that unless sufficient allowance is made, the material will expand and buckle in the center— come up from the floor, or from the surface on which it is laid. One of the merits of the Pennsylvania tile, as we saw it at that time, was having this condition taken care of by allowing a space between the blocks of tile.”

The plaintiff’s branch manager at Detroit testified that plaintiff employed Wm. E. Brady & Co., of Detroit, to install the tile on the steamers; that witness saw and was in charge of the work as it progressed from day to day; that the men who did the work were experienced men; that Mr. Jeffreys, the general superintendent of defendant, was on the boats off and on inspecting, and that he saw Mr. Keil on the boat once; that they did criticise in one or two instances —made the criticism of the tiling being a little too rough, or in one case where the tile was chipped off from the ends — that the workmen took that tiling up and replaced it with new pieces; that witness saw the rubber tiling on the two boats after it was fully completed; that the workmanship on the steamers, in so far as the rubber tiling was concerned, was of the best quality; that after the job was completed he called on Mr. Ketcham, the secretary of defendant, to get payment of the invoices, and he said it had not been satisfactory; the complaint was that the water seeped through, and it was not satisfactory to the owners of the boat; that subsequent to May 12th witness took up with defendant the question of the payment of the two invoices a number of times; they said the tiling was not right; they claimed it did not close up enough, the water seeped through; that after June 1st Mr. Lewis, the general manager of the plaintiff, came on and took up negotiations.. Witness further testified:

“At no_ time during these negotiations did I make any modification, written or otherwise, of the two contracts in question. I did not make any agreement with the Detroit Shipbuilding Company that they could keep that rubber for an indefinite time, or for any limited time beyond June 1st, to see whether or not they wanted to accept it. Mr. Lewis was the person in whom rested the final authority in this transaction, so far as the Pennsylvania Rubber Company is concerned.
“I inspected the tiling on the Octorara at the Detroit shipbuilding docks in August, 1910. The tiling looked fine. I think I discovered later in the color there was two or three different shades of green. In. August it looked all right; surface was even. It had not closed up as much as it might. It had begun to close up. It should not have been all closed up at that time; traffic was necessary to close it up.
“Mr. Jeffreys and Mr. Ketcham, and the gentlemen I have referred to, began to find fault with the work soon after we commenced installing, I believe it was on the Octorara. * * * Mr. Jeffreys first complained that the tiling didn’t close up. Mr. Farr complained a little about the color; those two classes of complaints were, from the very beginning, color and closing; Mr. Keil didn’t complain of anything to me.”

Wm. E. Brady testified that his business was tile contracting, and had been for 20 years; that he superintended the laying of the tiling; that when the job was going on he looked at the tiling to see if it was being laid properly; that he found it was being laid all right. He further testified:

“Mr. Gobel and I went up to the boat after it was all completed. My idea of the floor was that the rubber was laid all right. Of course they were open— all rubber floors are open when they are first laid. It was a good job of rubber floor work. Of course, there was some joints open. All rubber floors are open when they are first laid, until they tighten up. It is impossible to lay a rubber tiling floor so that the joints are all tight when it is first laid. I didn’t see anything else the matter. I think this job — or these jobs upon these two boats — were, in workmanship and material, of the best quality.”

One of the men who did the work testified that it was a good job.

Mr. Lewis, the general manager of the plaintiff, testified that he came to Detroit in June, 1910, after objection had been made by defendant, and after the boats had been turned over to the owners; that Mr. Ketcham said that they had decided, in order to. secure payment, it would be necessary for the plaintiff to give a bond of indemnity, and one had been prepared; this was objected to by the witness; that Mr. Farr, the president, and Mr. Ketcham said the joints were not close fitting, and they mentioned the water seeping through; witness did not recall complaint about color or material, or cracked or broken pieces; witness told them that that was the way Pennsylvania tiling acted when it was laid. Nothing came of the interview. While in Detroit witness wrote defendant a letter, in which, among other things, he said:

“We are not prepared, under any circumstances, to give you better tiling, or more satisfactory work than we did on these two boats, and this tiling will prove satisfactory, the same as our tiling is proving satisfactory in dozens of other places; and we refer to tiling which is made in exactly the same way and of the same compound, as furnished you; and whenever Pennsylvania tiling proves defective, in material or workmanship, within a reasonable period of time, we stand ready to make it good, and our intentions in this respect we do not believe have ever before been questioned. If you desire to pass favorably on this tiling, we would appreciate an immediate settlement of the account under the terms of our contract. If you do not wish to accept it, we will immediately , remove the tiling from the Octorara and the Rochester. This would mean a heavy expense to us, but we should prefer to do it, rather than to have the matter drag along indefinitely.”

No reply was received to this letter. The witness testified further that plaintiff was not given an opportunity to work on the vessels in 1910 and 1911.

Mr. Farr was called by the plaintiff, under the statute, and testified that the Rochester was turned over to its owner in April, 1910, as completed, except the tiling; that about a month later she was taken away, and used during the season of 1910; that the Octorara was turned over to its owner in May, 1910, and was used during the navigation season of that year; that on the Octorara Frank E. Kirby was the man whose approval he expected to receive according to the contract covering the vessel, and Mr. Keil was the man on the Rochester; and that Mr. Kirby and Mr. Keil had opportunity to inspect the tile before the steamers were turned over to the owners.

On behalf of defendant, Mr. Farr testified that he examined the work on the steamers, as it progressed; that the tile did not fit, the joints were open; that the tongue of the tile was in many instances broken, and the tile was discolored; some of the tiles were different color from others; that after the tile was laid, it was scoured and scrubbed by the employees; Gold Dust or other products were used; that this filled the joints with water; that he walked on the tile, and saw the water squeeze up through; that at the end of the job he could not see that the joints had- expanded at all, and the colors were uneven. He testified:

“The edges of many of the tile were exposed, and many chipped and broken at the ends. The tile appeared hard. It was in that condition when we delivered the ships. I had several talks with Mr. Gobel. From a time before the Rochester was finished, until after the Octorara was finished — the work on the Octorara was done last — the condition of the tile on that steamer was much the same as on the other, both as regards joints and color. The defects and the attempted method of treatment were the same in both boats. Many defective tile were replaced. I had a conversation with Mr. Gobel as to the payment of the bill. * * * I replied that we would be very glad to pay the bill if they would finish the job, that is, carry out the Pennsylvania Rubber Co.’s contract; and he said that they had carried it out. We made out a check. I ordered a check made out, payable to¡ the order of the Pennsylvania Rubber Company forf the full amount of the bill, with the idea of turning it over in case they would indemnify me in some way against loss. Also Mr. Gobel assured me that the tile would be all right after use; that their tile was different from what is known as the close-fitting tile; that after we had used it a season — or one or two seasons, I think he said — that it would close up and would be all satisfactory. Well, then, I replied that I thought it would be a good idea to give the tile a trial during that season, and if it turned out all right in the fall and was acceptable, then we would turn over the money to him. And I would be very glad to if he would furnish a bond to indemnify us against loss, that is, I was willing to advance them money to help them out, and that led to the drafting of a form of bond, a redrafting of other forms, and nothing came of it. He said to leave the matter open until fall, and then decide on whether it was a good job or not. After this conversation the tile was tried out. The owner of the Octorara, when the boat was turned over, like the owner of the Rochester, refused to accept the tile. The owners of both boats were persuaded to allow the tile to remain down through the season to try it out.”

After testifying at some length of the interview with Mr. Lewis, and referring to the proposed bond, the witness testified:

“He said the tile was there, and it was a good job, and he wanted his pay, and threatened at that time to take the tile out, and I reminded him that that would not do — that it would not be fair to the owners of the ships to take the tile out in the middle of the water season — and, furthermore, he could not take it out under the contract. He had no such privilege. * * * The architects at that time had not accepted the tile; nor had the owners.” (Objected to as immaterial what the owners did. Overruled. Exception.)

The witness further testifiéd that the season ended about the middle of September with the Rochester, and perhaps a little later with the Octorara; that after the close of navigation, on October 28, 1910, de-' fendant notified the plaintiff, in writing,, that the tile was not satisfactory. (This evidence was received over the objection of plaintiff that the contract, providing that work and quality be first-class, created a condition precedent, and defendant in turning boats over to owners, accepted the work; that the claimed defects were all known, and the tiling should have been refused if not satisfactory. Objection overruled. Exception.) He further testified that the tiling in the smoking room of the Octorara was finally accepted by the owner, after it had been used for the season; that all the rest of the tiling on the Octorara, and all of the tiling on the Rochester, was taken up; that plaintiff did not replace any of this; that defendant arranged with the New York Belting & Packing Company to replace it and paid it for the work; that after such relaying the work was accepted by the owner of the boat; that before the tiling was removed from the Rochester, witness examined it in the spring of 1911, with Mr. Kirby, Mr. Keil, and the superintendent of the Richelieu Company; that the tile was in very bad condition; the joints were still open, and the tile was discolored; many were broken and discolored, and generally in a very bad condition; and there had been no expansion of the tile. Upon cross-examination, the witness testified that the defendant did not, after receiving Mr. Lewis’ letter of June 29th, take any steps to remove the tiling.

Mr. Jeffreys testified that he saw the work of laying the tile while it was in progress; that he criticised it practically every day for open joints and bad color; that he did not say anything to Mr. Gobel, but made his complaints to the men laying the tile, and the office; that in witness’ opinion the material was poor, and the workmanship was not good; that the real criticism was the open joints and defects in coloring, which were both apparent at the time; and that when the boats went into commission there was the same condition. A number of other witnesses swore to the same general conditions.

Mr. Keil, one of the architects, testified that he saw the tile installed on both ships, while they were installing it; that he told the men that were laying it that it would not pass; that it did not pass; that the trouble was the tile was uneven, and the joints were bad; that it was very brittle, and the color was not the same, and there was a sufficiently marked unevenness in the tile to be unsatisfactory to witness as a designer; that he saw some of the pieces break while they were laying them; that the stuff looked raw and gritty; that he noticed the warping in different parts of the ship, and saw the faults in color; that the openings were wider than he was accustomed to see; that as architect of one boat, and associate architect of the other, witness did not accept and pass the tile on these vessels, and for the reasons stated; that he saw the Rochester in the spring of 1911, when she was lying at Prescott in the St. Lawrence river; that he examined her thoroughly, and found the tile in bad condition; that the joints were opened up considerably, and the colors had not changed any, and in some places whole tile were broken; that the tile was not at that time in such shape that he felt warranted in accepting it, and it was in worse shape than when the boat left Detroit in the spring of 1910. Upon cross-examination he testified that he examined the tiling every two or three days while it was being laid on the Rochester, and that he knew the tile was in the condition he had testified to while the work was going on, that he did not permit the boat to be turned over to the owners, and had nothing to do with that matter, and that he did not certify in general to the completion of the boat, but did say that the rubber tiling was not good.

Frank E. Kirby testified that he designed the Octorara, and was consulted by the defendant and the owners; that he observed the work of laying the rubber tiling on the boat, as it progressed; that the tile did not join well; that after the ship had run one season the joints were still bad, and considerable of the tile was broken; that in his opinion the workmanship and material of the job were not of the best quality; that the use of the tiling during the season did not appear to affect favorably the openings in the joints; and that he inspected the tile on the Rochester in the spring of 1911, with Capt. Johnson and others, and that the condition was of the same general character as on the Octorara, as to the opening and the lack of expansion of joints. On cross-examination he testified that when the Octorara was turned over to the owners, he approved it conditionally. The following occurred:

“Q. What do you mean by ‘qualified approval?’
“A. Anything that breaks down in the ship — while I pass her, I expect the company will make that good.
“Q. You approve or disapprove as to everything that is apparent?
“A. Yes, sir.
“Q. If there is a defect apparent, you either reject that, or else you approve it as defective?
“A. I reject it as bad.
“Q. You didn’t reject any of the tiling on this?
“A. (interrupting) It didn’t show any defect, only it was open. There was no breaking.
“Q. Then you approved it?
“A. No; I didn’t approve it. I only qualified it.
“Q. Did you give any different approval on the rubber, than you did anything else?
“A. Oh, it is the same on everything else.
“Q. The same as everything else — that was a general approval, and you approved it?
“A. It looked all right.
“Q. It looked all right, and you approved it?
“A. Yes, sir.”

Redirect examination:

“I said just now that when the boat went out, I hoped the tile would close up in the course of time. When I saw her after the season’s use, the tile had not closed up. It did not work out as I hoped it would. Walking over the tile had apparently not caused it to expand at all.”

Recross-examination:

“Q. You did not say that you would not approve the tiling on the Octorara when it was turned over?
“A. No; we thought it would be satisfactory.
“Q. And you did not specifically disapprove it?
“A. No, sir.”
Mr. Farr, being recalled, testified:
“Mr. Keil and Mr. Kirby gave a qualified approval on the boats in May, 1910, and final approval was given when the boats were accepted.”

There was evidence tending to show that the tiling was of inferior quality, and an analysis of the same was testified to. It appeared that upon turning the boats over to the owners in the spring of 1910, payment for the same was made, and that nothing was withheld on account of the rubber tiling. The price paid to the New York Belting & Packing Company was 90 cents per square foot.

We have, at the expense of prolixity, set forth the substance of much of the evidence in order that it may clearly appear what the issue was, before the jury. Among defendant’s requests to charge were the following:

“(3) The undisputed evidence shows that the Pennsylvania Rubber Company laid all the interlocking rubber tiling on the two steamers, but neither of the architects of the steamers approved it, nor did the Detroit Shipbuilding Company accept it; that the owner of the Rochester refused to accept any of it on that steamer, and that the owner of the Octorara refused to accept any of it on that steamer except so much as was laid in the smoking room.
“ (4) Under the undisputed evidence, in view of the terms of the contracts between the parties, the plaintiff can, in any event, recover or be allowed only so much as represents the agreed price for the tile laid in the smoking room of the Octorara, viz., 473% square feet at 75 cents a square foot, or $313.31, with interest at 5 per cent, from June 12, 1910.
“(5) There is no dispute that the Detroit Shipbuilding Company replaced all the tile on the Rochester and all that on the Octorara, except that in the smoking room not in controversy, with tiling furnished by the New York Belting & Packing Company, which was accepted by the owners of the steamers. It was the duty of the shipbuilding company to replace the tile, and it is entitled to be allowed the reasonable cost of replacing it. It is further entitled to be allowed such reasonable expense as you may find from the evidence it was reasonably obliged to incur in connection with the transaction, like freight, cartage, and storage of the old tile, which it offered to return to the Pennsylvania Company. It is entitled to be allowed the traveling expenses of Mr. Farr and Mr. Kirby and professional charge of Mr. Kirby for inspecting the Rochester in May, 1911, if you find from the evidence that the amounts expended thus were reasonable in amount, and were reasonably and properly incurred, in order to determine whether the claim of the owner of the Rochester was well founded, at the time, that the tile laid by the plaintiff on the Rochester was not in workmanship and. material of the best quality.
“(6) If you find that the amount reasonably expended in removing the tile and relaying it to the satisfaction of the owners of the steamers, and in matters reasonably incidental thereto, exceeds, after allowing the plaintiff the contract price of the smoking room tile, the amount the shipbuilding company would have paid had the Pennsylvania Rubber Company fulfilled its contract, then the shipbuilding company is entitled to a verdict in its favor for this difference. In reaching a conclusion, interest should be allowed on each item from the time it was due or was expended.”

In its charge to the jury the court said:

(“The architect of the company, whose duty it was, under the contract made between the plaintiff and the defendant, to pass upon and accept or reject the job, accepted this job with all the rest of the work qualifiedly, that is, unless something should transpire afterwards that was then at that time unforeseen, that the ships would.be accepted in the condition in which they were passed over, and among other things that were considered in the same light was the tiling, together with, all the other details going to make up the manufacture of the ships.)
“At this time the representations had been made, by those who were handling the tiling for the plaintiff company, that in time the tiling would expand, and that the color would come in proper manner and sufficient degree to please the parties for whom the tiling was being laid, and would be acceptable. It is the claim of the defendant company that this expansion did not take place, and that in the fall, they notified the plaintiff company, and positively directed them to remove that tiling. The plaintiff company did not do so; and in the spring following the shipbuilding company, the defendant, claiming to do so at the request of the owners, removed the tiling, shipped it to Detroit and stored it here in this city, where it still remains.
“Now the claim of the plaintiff is that this was perfectly good tiling; that it was no more brittle than other tiling; that the color did not lack uniformity ; and that the tiling did expand, and made as .good a flooring as would comply with the contract made— that is, that it was of the best material and workmanship. (They did not contract that the tiling should be better than any other tiling. The contract was it should be equal to the best. It was to be good tiling, laid in good, workmanlike manner, and completed in such a manner as would answer the purposes for which it was laid.)
(“It was not expected, perhaps, that it would be absolutely waterproof. Even water tanks that are supposed to hold water are not supposed to be absolutely waterproof and not leak a drop. Probably there is no tiling laid but what water, will leak through somewhere.) But, substantially, I take it, it is expected to be laid in such a manner that it can be washed and cleaned, cleansed with water or liquid, without sufficient water going through to damage the deck below.
“The plaintiff further claims that this tiling did come up to this degree of quality, and was passed conditionally; that is, it was passed under the condition and accepted under the condition that it should comply with the terms of the contract. They claim that the parties complied with this condition, and that it was virtually accepted by the defendant and should be paid for according to the contract.
“The defendant claims that it never did close up; that the seams, the several blocks, did not expand, and that the seams remained open to such an extent that water seeped through and onto the decks beneath and rusted the iron or steel plate where it was laid upon steel, and warped the boards that were laid upon the decking where there were boards, just beneath the tiling; that it was unsanitary; that in the dining room there were particles of food, which were washed into the seams and remained in the seams and in time it became unsanitary, and that it was not properly laid or not properly manufactured and would not answer the purpose for which it was designed to be used.
“Now, so far as the color and the brittleness of the tiling is concerned, I do not think we are much interested in that. The plaintiff company seems to have been willing to remove all broken tile. They had some there for the purpose, and would have undoubtedly, if required to do so — if the company had notified them — have removed the broken tile and substituted whole ones which they had for that purpose.
“Perhaps I may be wrong, but I fail to remember any testimony that it would have rendered the tile useless to the defendant on account of its color. They could have been passed over all right — those things. The matter of the color and brittleness may be considered by you only with reference to whether or not the tile was of the best quality — whether or not that was any evidence that the tile was manufactured in such a manner that it would not expand so as to fill up those spaces between the tile. And that is the crucial point in this case. Did the tiling on those two ships expand so as to practically close those spaces between the blocks?
“In order to be of the best quality of material, manufacture, and workmanship, I charge you that it was necessary that it should do so. If it did that, the plaintiff in this case is entitled to recover; if it did not, the plaintiff is not entitled to recover. That, as I stated before, is the crucial point in the case. The burden of proof is upon the plaintiff to show that it did. If the plaintiff has not shown that by a preponderance of the testimony, then the plaintiff is not entitled to recover, and the defendant is entitled to recover. If the plaintiff has shown it, then it is entitled to recover the full amount of its claim, and the defendant will recover nothing on account of the claim of recoupment which it has put in.”

Error is assigned upon the refusal of the court to give defendant’s requests, also upon that part of the charge embraced in the parentheses.

1. The first point urged by appellant is that there can be no recovery for work, not approved by the architects; and counsel cite Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207), and Fisher v. Adding Machine Co., 166 Mich. 396-401 (132 N. W. 101). It will be noted that the contract did not require a formal certificate of approval. It provided:

“Terms 30 days net, after completion and approval by architect, and acceptance by this company.”

Under the circumstances as detailed by the evidence, we think that it was a fair question for the jury whether the contract was performed by the plaintiff, and whether there was a rejection of the tiling before the boats were turned over to the owners. The defects complained of were obvious; and it has been held that if the defects are obvious, a failure to reject is equivalent to approval. 35 Cyc. p. 229, and cases cited. The approval of the architects could be waived by the defendant. In our opinion the cases cited by appellant are not controlling, but the real questions are:

(1) Was the contract substantially performed by the plaintiff?

(2) Did the defendant’s conduct amount to a waiver of formal approval by the architects, and an acceptance of the tiling?

It is clear that acceptance may be express, or implied from circumstances, in such a case. The tiling installed in these boats consisted of blocks about three inches across, of two shapes, which interlock with each other. The design was made by a combination of blocks of different colors. The laying of the tiling consisted in properly combining the colors to form the designs, and fitting the blocks around the edges of the surface to be covered. The tiling was not fastened to the floor, and, after being laid, the whole, or any number of blocks, could be removed, and new blocks substituted in their stead. The undisputed evidence is that the plaintiff offered to remove the tiling if unsatisfactory, but this offer was refused by defendant, and the boats were turned over to the owners, who paid the contract price for them. We think it was a fair question for the jury whether, by its conduct, defendant did not accept the tiling, and waive its right to stand upon the claimed failure of the architects to approve. Bowers Law of Waiver, p. 29; Brady v. Cassidy, 145 N. Y. 171 (39 N. E. 814).

It was denied by plaintiff that there was any consent given that defendant might use the tiling during the running season, and leave the matter open until fall. It is manifest that there was no warranty intended to survive approval" and acceptance. The following authorities, are applicable: Talbot Paving Co. v. Gorman, 103 Mich. 403 (61 N. W. 655, 27 L. R. A. 96); Eaton v. Gladwell, 121 Mich. 444-452 (80 N. W. 292); Buick Motor Co. v. Reid Manfg. Co., 150 Mich. 118 (113 N. W. 591); Gill & Co. v. Gaslight Co., 172 Mich. 295 (137 N. W. 690); Cheboygan Paper Co. v. Eiehberg, 184 Mich. 30 (150 N. W. 312); Henderson Lumber Co. v. Stillwell & Co., 130 Mich. 124 (89 N. W. 718); Wolf Co. v. Refrigerating Co., 252 Ill. 491 (96 N. E. 1063, 50 L. R. A. [N. S.] 808); Orton v. Stone & Lime Works Co., 183 Ill. App. 370; Kingman & Co. v. Watson, 97 Wis. 596, 612 (73 N. W. 438), and cases cited; J. Thompson Manfg. Co. v. Gunderson, 106 Wis. 449, 455 (82 N. W. 299, 49 L. R. A. 859).

2. Was there error in. the refusal to give defendant’s third and fourth requests to charge? If we are correct in what we have already said, and if the authorities referred to are applicable, defendant was not entitled to have the said requests given.

3. Was there error in failing to give the fifth and sixth requests? It is evident that the jury found that there was no breach of warranty, or of contract, and that there was approval and acceptance, or that there was a waiver of approval. At all events it appears that the jury gave a verdict for the full amount claimed by plaintiff, and did not reach the question of defendant’s damages; they must therefore, havé found, either that the tiling and installation were as the contracts called for, and that there was approval and acceptance, or that the defects were waived. The matter of recoupment was therefore unimportant. Buick Motor Co. v. Reid Manfg. Co., supra. The subject, however, seems to have been fully covered by the charge of the court.

We have examined the charge with special reference to the portion upon which error is assigned. We. find no error therein, and we are of opinion that the charge as a whole was as favorable to the defendant as could be reasonably asked.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    VAN SLYKE v. VAN SLYKE.
    1. Divorce — Pleading—Jurisdiction—Affirmative Defense.
    Upon defendant’s cross-bill for a divorce, the court should not set aside a former decree of the court of chancery granting the wife a divorce from her first husband without a properly verified answer presenting the matter of affirmative defense.
    2. Judgment — Parties—Collateral Attack.
    A merely voidable judgment cannot be attacked by a stranger to the record: if absolutely void it needs no decree to set it aside.
    3. Divorce — Setting Aside Decree — Fraud.
    For fraud or want of jurisdiction the court of chancery has power to set aside a decree of divorce upon the application of the opposite party, though the successful one may have remarried, but the decree cannot be avoided by the party guilty of fraud nor can third persons set it aside.
    4. Same — Estoppel—Fraud.
    Complainant’s husband was estopped from having a prior decree whereby she was divorced from her first husband set aside on the grounds of fraud and want of jurisdiction, by participating in the fraud, knowing that complainant was not a legal resident of the county in which the divorce was granted, and in paying the expenses of the -first divorce proceeding.
    Appeal from Washtenaw; Kinne, J.
    Submitted April 14, 1915.
    (Docket No. 76.)
    Decided June 7, 1915.
    Bill by Rose E. Van Slyke against William M. Van Slyke for divorce from the bonds of matrimony. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Frank E. Jones, for complainant. .

      Alfred S. Frost (L. B. Gardner, of counsel), for defendant.
   Ostrander, J.

Complainant and defendant (he is now deceased) were married in Allegan, Mich., April 9, 1912, she having been previously married and having been, by a decree of the circuit court, in chancery, for Allegan county, made December 5, 1911, divorced from her former husband. Complainant filed her bill in this cause in April, 1913, praying that the marriage with defendant be dissolved. Defendant answered, but not upon oath, and in his answer he set up, among other matters, that complainant perpetrated upon him a fraud in marrying him because she had not been legally divorced from her former husband. In August, 1913, he filed his bill in the circuit court, in chancery, for the county of Van Burén, Mich., charging, among other things, with respect to the Allegan divorce:

That complainant was not a resident of Michigan when she filed her bill for divorce. •

“That the said Rose Ellen Dibler, just prior to the filing of her said bill of complaint against her said husband to dissolve the marriage between them, was informed that she could not obtain a divorce because she was a resident of the State of Indiana. That the laws of this State required her to be a resident of this State and the county in which she filed her bill for two full years prior to the filing of the bill when the cause for which she sought relief was based upon acts that occurred outside of the State of Michigan. That after being so told she went to other counsel and to him, your orator is informed and believes and therefore charges the truth to be, falsely represented that she was then a resident of Allegan county, had been for over a year last past a resident of the State of Michigan, and because of such false and fraudulent representations persuaded and induced her said solicitor to file her said bill of complaint in said county of Allegan, State of Michigan, and thereafter she falsely and wickedly pretended to the said circuit court of Allegan county that she was then a resident of said Allegan county, and theretofore had been for one full year prior to the filing of her said bill of complaint a resident of the State of Michigan, and by reason thereof obtained a decree purporting to dissolve their said marriage”

—and setting up a copy of 'the bill for divorce, the testimony, report of the commissioner, and decree of divorce, and setting up, also, the pendency of the Washtenaw county (the instant) case. Complainant here, defendant in that suit, answered the bill, asserting that the Allegan divorce was regular and valid, and in her answer admits that she married Jacob A. Dibler February 29, 1888; that they lived in Michigan about two years, removing to Indiana, in which State they lived until September, 1909, when she, taking her son, went to live with her mother in Branch county, Mich.; that while she has been out of the State of Michigan since that time for different periods of time, she has at no time gone with the intention of removing or making her residence other than with her mother until she went to the city of Allegan, Allegan county, Mich., in the summer of 1911, with the full intention of entering into business and remaining there.

In this Van Burén county suit proofs were taken and a decree entered dismissing the bill. The trial judge found that the Allegan court did not have jurisdiction to render the decree of divorce, that the complainant in that suit and in the instant suit had not been a resident of this State the required period of time to enable her to invoke the aid of the Michigan court in the dissolution of the Dibler marriage. But he found, further, that the complainant in that suit, defendant here, was aware of all the facts and circumstances and aided her in procuring her decree of divorce and estopped from asserting that a fraud had been perpetrated upon him. Upon an appeal to this court from the decree dismissing the bill, it was affirmed, but not upon merits. The ground of our decision was that the issue was pending in and could be and ought to be decided by the Washtenaw court in the instant case. Before this decision was made, which was in December, 1914, the cause had proceeded to a decree in the Washtenaw county court, upon the merits. The validity of the Allegan county decree of divorce was not determined. It is now urged, on behalf of defendant, deceased, that the decree was wrong, considered upon the merits, and that the issue of the validity of the Allegan county divorce ought to have been and ought to be determined.

By the death of defendant, since the decree was entered and the appeal taken, the personal relations of the parties are ended. In view of the nature of the testimony given by complainant, whether true or false, no continuance of marital relations would have been tolerable. We have occasion to consider the testimony only for the purpose of determining whether the award of alimony ought to be sustained. Most of the material testimony was given by the parties, that on the part of complainant being an alleged revelation of the intimate personal relations of husband and wife. We have not the advantage, a considerable one in such a case, which the trial judge had, of seeing the bearing and appearance of the parties in court. The conflict of testimony was sharp, and while we view that of complainant with some suspicion of its exact truth, we are not so well convinced of its falsity as to disregard it and set aside the decree.

We come then to consider the proposition that the complainant could not, legally, intermarry with defendant. It is to be noticed, first, that, conceding that the Washtenaw court had jurisdiction to determine the proposition upon proper pleadings, the setting aside of the Allegan county decree is an affirmative thing, asked for by defendant, the answer of defendant was not verified, and he is now dead. If in any case we could now permit necessary amendment of the answer, defendant cannot make the amendment. 3 Comp. Laws, § 8618 (4 How. Stat. [2d Ed.] § 11455). Assuming, but not deciding, that as the matter of jurisdiction of the Allegan county court in the Dibler divorce proceedings must be determined by the records of that court, the personal representative of the defendant may now present that record, and to this extent may verify the answer of defendant, how does the case stand?

“Where the judgment is only voidable and not void, it cannot be attacked by strangers to the record. And where it is absolutely void it needs no proceedings to set it aside.”

Vide Campbell, J., in Baugh v. Baugh, 37 Mich. 59, 62 (26 Am. Rep. 495).

There is no doubt of the power of a court of equity to set aside its own decree of divorce for fraud in its procurement, or for want of jurisdiction, on the application of the party against whom the decree was obtained, and this although the other party may have remarried. But the decree cannot be avoided by the party guilty of the fraud. Simons v. Simons, 47 Mich. 253 (10 N. W. 360), nor at the instance of third parties, nor can a party who obtains the divorce and accepts its benefits afterwards question the jurisdiction of the court granting it. Carlisle v. Carlisle, 96 Mich. 128 (55 N. W. 673), and cases cited in opinion.

Was the decree of the Allegan county court in the Dibler divorce case absolutely void? The jurisdiction of equity courts in divorce proceedings is purely statutory. The applicable statute is Act No. 210, Pub. Acts 1899 (4 How. Stat. [2d Ed.] §11461), which provides that no decree shall be granted by any court unless, first, the party applying shall have resided in this State for one year immediately preceding the filing of the bill, or, second, the marriage was celebrated in this State and the party applying shall have resided in the State from the time of the marriage. Whenever the cause for divorce charged in the bill shall have occurred out of this State, no decree shall be granted unless the complainant, or defendant,' one or both of them, shall have resided in this State for two years immediately preceding the filing of the bill. The bill filed in Allegan county by this comnlainant recites that she is “of Allegan, in the county of Allegan and State of Michigan.” It charges the marriage to have been celebrated in Michigan. It charges cohabitation of the parties after marriage until April 10, 1910, and that complainant has resided in this State “since said marriage with said defendant continually for a period of one year and upwards, immediately preceding the time of exhibiting this her bill of complaint and that she resides in, and is an inhabitant of this State.” It charges that defendant is guilty of adultery and of extreme cruelty, the acts occurring in Indiana; one act of violence in Quincy, Mich., where the parties resided for 2% years, occurring about one year after the marriage. Defendant was brought in by publication, the place of his residence not being stated in the bill of complaint. When the testimony introduced by the complainant in that cause is read and facts and circumstances concerning her actual residence in the State are considered, it is apparent that a fraud was perpetrated upon the court. But in view of the charge of an act of violence committed in Michigan, coupled with charges that similar acts were after-wards repeated in Indiana, although doubtful of the proper conclusion, we are not prepared to hold that the Allegan county court had no jurisdiction, or that the decree of that court is void. We are, however, constrained to say that the record supports the conclusion of fact that the defendant here was quite as much interested in procuring the decree of divorce as was the complainant, proposed to pay her counsel and advised her and her counsel of his interest. He intended to profit by the decree of divorce, not in a financial way, but in removing an obstacle to his marriage with complainant. Whether it was or was not intentional, he aided and abetted the fraud which was perpetrated.. We are therefore less, concerned than otherwise we should be about the question of the pleadings in the case at bar and the right of the personal representative of the defendant to amend them. Upon the authority of Robson v. Robson, 161 Mich. 293 (126 N. W. 216), he may be held to have no standing to present the defense that he was defrauded into marrying complainant.

Rut we think the award of alimony is excessive. Complainant brought nothing to defendant, and their life together was short. At the most, defendant’s property was worth not more than $6,000. The award should be considered as if he were now alive, and we think the decree of the court below ought to be and it is affirmed in all respects, excepting that the award of permanent alimony will be reduced to $750. Appellee will recover her costs of this appeal, and may tax a solicitor’s fee of $100.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    CICHON v. WOLFF.
    Neghtgenoe — Shows — Tithe — Ownership of Amusement — Evidence.
    Evidence, in an action for personal injuries sustained on a roller coaster, that, one of the defendants was present, that the amusement park was called hy his name and he assisted in starting the car in which plaintiff rode, was insufficient to prove the ownership of defendant copartnership.
    Error to Wayne; Donovan, J.
    Submitted April 15, 1915.
    (Docket No. 126.)
    Decided June 7, 1915.
    Case by Mary Cichon against Samuel Wolff and another for personal injuries. Judgment for plaintiff. Defendants bring error.
    Reversed.

      A. W. Sempliner, for appellants.

      Samuel H. Crowl, for appellee.
   Ostrander, J.

The action is trespass on the case to recover damages for personal injuries which plaintiff claims to have received while riding on a roller coaster, so called, at a certain place of amusement in the city of Detroit June 24, 1906. In her declaration plaintiff describes defendants as copartners doing business as Wolff & Son, alleges that the defendants owned, controlled, and operated the said roller coaster, and that, paying a sum of money charged therefor, she accepted their invitation to ride, and rode, thereon. Defendants offered no testimony, but moved for a directed verdict, assigning, among other reasons, that no testimony had been introduced tending to prove that defendants owned, controlled, or operated the roller coaster. The motion was denied. The ruling is assigned as error. It does not appear that any exceptions were taken at the trial. Request was made for an instruction that the jury must be satisfied by a preponderance of the evidence that Wolff & Son was a partnership and owned, controlled, and operated the roller coaster. This the court did not give and said nothing to the jury upon the subject. The record contains the substance of all the testimony given upon the trial, as appears by the certificate of the trial judge. It doés not disclose more to connect either defendant with the occurrence than this, that Maurice Wolff was there, that the place was called Wolff’s Park, and that Maurice personally had something to do with starting the car in which plaintiff took her ride. It is contended, also, there is no testimony tending to prove the negligence of either defendant. There appears to be ground for this contention.

We are impressed that, in view of the state of the record, we should not attempt to decide whether from the testimony the negligence of defendants may be inferred, if they in fact owned, controlled, and operated the roller coaster, inviting the public, for a consideration, to ride thereon. The trial judge should at least have given the above indicated instruction.

The judgment is reversed, and a new trial ordered.

Brooke, C. J., and McAlvay; Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    BROADWELL v. FIELD.
    Accounting — Fiduciary Relations — Appeal and Error — Trusts — Attorney and Client.
    Evidence in a suit for an accounting considered and held, to sustain the decree of the circuit court applying the rules applicable to the relation of attorney and client and of trustee and beneficiary.
    Appeal from Wayne; Collingwood, J., presiding.
    Submitted April 16, 1915.
    (Docket No. 138.)
    Decided June 7, 1915.
    Bill by Allie M. Broadwell against John F. Field and others for an accounting. From a decree for complainant, defendants appeal.
    Affirmed.

      Harry H. Wait (Lyle G. Younglove, of counsel), for complainant.

      W. I. Robinson and R. Á. Hawley, for defendants.
   Ostrander, J.

One purpose of the bill of complaint filed in this cause was to secure an accounting and settlement with defendant Donovan as trustee, and also as attorney and legal adviser of complainant. The appeal involves only the decree of the court below made upon the accounting. No questions of law are involved, except that there must be applied, and there was applied in the court below, the rules of law applicable as between a trustee and the cestui que trust and an attorney and client. An examination of the record has satisfied us that the court below reached a proper conclusion, and its decree ought not to be disturbed. It is affirmed, with costs of this appeal to complainant.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    KELLY v. CASS.
    Deeds — Evidence—Undue Influence — Fkaud.
    Reviewing the conclusion of the circuit judge upon the evidence, a deed of conveyance from deceased to defendants, held, to have been intelligently and freely executed.
    Appeal from Eaton; Smith, J.
    Submitted April 21, 1915.
    (Docket No. 129.)
    Decided June 7, 1915.
    Bill by Angeline, Kelly and another against Lincoln Cass and others to set aside a certain conveyance. From a decree for defendants, complainants appeal.
    Affirmed.

      George Huggett and John C. Nichols, for complainants.

      Elmer N. Peters (Garry C. Fox, of counsel), for defendants.
   Ostrander, J.

A single ultimate question of fact is involved. It is whether Laura J. Vickery, deceased, intelligently and freely executed a certain conveyance of real estate. An analysis of the testimony will profit no one. We are impressed that the preponderance of evidence supports the conclusion of the court below, and the decree is therefore affirmed, with costs to appellees.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    ATKINSON v. JAPINK.
    1. Sales — Conditional Sale — Reservation oe Title.
    Where plaintiff received $140 and two promissory notes for the purchase price of an automobile, and the notes contained a clause reserving title in the vendor with authority, if he deemed himself insecure, to resume possession and sell the car at public or private sale, and to indorse the proceeds upon the notes, the transaction amounted to a sale with reservation of the title as security for the indebtedness.

    2. Same — Chattel Mortgage — Bills and Notes.
    It was not necessarily a conditional sale because the seller reserved title in himself.
    3. Same — Payment.
    A transfer of personal property may be a bailment though cash is paid and notes taken for deferred payments.
    4. Same — Absolute Transfer — Security.
    Reserving absolute title in the vendor is inconsistent with an action to recover the debt, but if the contract imports that title is retained for security merely, authorizing the vendor to reclaim and sell the subject matter, the taking and holding of additional security and the enforcement of statutory liens are not inconsistent with such reservation.

    5. Same — Liens—Chattel Mortgages — Assignment—Negotiability.
    By transferring one of the title notes to a bank as security for a loan, plaintiff, the vendor, did not lose his right to retake the car under 'the remaining note; whoever held one of the instruments was entitled to secure possession of the car in case defendant committed a default. The sale of either note passed a proportionate interest _ in the security.

    6. Replevin — Demand—Liens—Chattel Mortgages.
    Where plaintiff, who attempted to secure payment of a note reserving title in his hands, stated at the time it fell due to the buyer of the automobile that he would have to take the machine, and it was not surrendered, no further demand for possession was necessary as foundation for an action of replevin.
    Error to Berrien; Bridgman, J.
    Submitted April 23, 1915.
    (Docket No. 56.)
    Decided June 7, 1915.
    Replevin by Robert C. Atkinson against Benjamin Japink for a motor car. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      O’Hara & O’Hara, for appellant.

      Coolidge & White, for appellee.

      As to effect of retention of title to personal property until payment of purchase price to characterize sale as executory, see note in 5 L. R. A. (N. S.) 475.

       As to transfer of purchase money obligation as affecting reservation of title, see note in 37 L. R. A. (N. S.) 71.
      As to right of seller to recover purchase price where title is expressly reserved by seller until purchase price is paid, see note in 51 L. R. A. (N. S.) 759.

      As to right of vendor on default of payment in conditional sale, see note in 32 L. R. A. 455.

   Ostrander, J.

Plaintiff sold an automobile to defendant for $650. One hundred and forty dollars was paid in cash, and two notes for $185 and $325, respectively, were executed by defendant, payable to plaintiff. Each note reserved title to the automobile in plaintiff until it was paid, with a right to declare the note due and take possession of the car at any time plaintiff deemed himself insecure, to sell at public or private sale, and indorse the amount received upon the note. Plaintiff sold the notes, indorsing them, but not to the same purchaser. The smaller note falling due, plaintiff took it up from the purchasing bank, asked defendant to pay it, who refused to do so.

“After he told me we couldn’t get a settlement, I said we will have to have the machine.”

No other demand for the car was made. This suit was instituted, and upon the trial the facts here stated were made to appear, and that the larger note was outstanding in the hands of a third person. The car was taken on the writ. Defendant moved for a directed verdict for the reasons:

(a) That' no demand for the property had been proven; (b) that, it appearing that two notes had been given, one now held by plaintiff, and the other by a third person, the plaintiff and the owner of the other note were tenants in common of the chattel, or joint tenants, and replevin may not be brought by a tenant in common for the recovery of a specific chattel without joining, or without the concurrence of, the other tenant in common; (c) “it appears that shortly after the making of the note in question [exhibited in suit] this plaintiff, being the owner and holder thereof, sold the note in suit to the Snell Banking House of Niles, Mich., for full value; and the rule is well established that, upon such sale, any title which the plaintiff may have had by virtue of that note in the machine passed from him to either, one of two persons (and we claim to the last person mentioned), that is, either to Snell & Co. or to the defendant in suit, and we claim the title passed, so far as that note was concerned, the title to the machine passed to the buyer of the machine, this defendant.”

The trial court was of opinion that title to the car passed to defendant, and that plaintiff had a lien thereon, that the action would lie, and a verdict for plaintiff for nominal damages was directed. Judgment was entered for plaintiff for six cents damages and costs. Exceptions were taken to the rulings and present the questions argued in this court.

Whether a sale of personal property is absolute or conditional depends upon the contract of the parties. In Choate v. Stevens, 116 Mich. 28 (74 N. W. 289, 43 L. R. A. 277), and in Coeling v. Green, 163 Mich. 27 (127 N. W. 792), this court found from the terms of the agreements that the sales were absolute and not conditional. These cases illustrate the rule stated in Chicago Railway Equipment Co. v. Merchants’ Bank, 136 U. S. 268, 280 (10 Sup. Ct. 999, 1002), that:

“The fact that, by agreement, the title is to remain, in the vendor of personal property until the notes for the price are paid, does not necessarily import that the transaction was a conditional sale.”

See, also, Harkness v. Russell, 118 U. S. 663 (7 Sup. Ct. 51).

That a transfer of personal property may be a bailment, although cash is paid and notes taken for deferred payments, is well settled. See Thirlby v. Rainbow, 93 Mich. 164 (53 N. W. 159), which refers to several earlier decisions; Dewes Brewery Co. v. Merritt, 82 Mich. 198, 202 (46 N. W. 379, 9 L. R. A. 270). Whether the condition here amounts to an absolute reservation of title in the vendor, or a retention of title by way of security merely, and whether, whatevér right was reserved, title to the car passed to the vendee upon the sale of the notes, are questions which may be considered together. An examination of our own and of the decisions of other courts leads to the conclusion that they sustain, in the main, two propositions: First, that when the absolute title is reserved, retention thereof by the vendor is inconsistent with an action to recover the debt; second, that if the contract of the parties imports that title is retained as security merely, and the vendor is given the right to reclaim and resell the res, the taking and holding of additional security and the enforcement of statutory liens are not inconsistent with the reservation. The condition here is not alone a reservation of title, but evidences the intention to permit the retaking of the thing sold, sell it, and recover any balance of the purchase price which may be unpaid; a retention of title by way of security only. Myres v. Yaple, 60 Mich. 339 (27 N. W. 536); Pettyplace v. Manufacturing Co., 103 Mich. 155 (61 N. W. 266); Warner Elevator Manfg. Co. v. Building & Loan Ass’n, 127 Mich. 323 (86 N. W. 828, 89 Am. St. Rep. 473). And see, generally, Kendrick v. Beard, 81 Mich. 182 (45 N. W. 837); Tufts v. D’Arcambal, 85 Mich. 185 (48 N. W. 497, 12 L. R. A. 446, 24 Am. St. Rep. 79); Ryan v. Wayson, 108 Mich. 519 (66 N. W. 370); Perkins v. Grobben, 116 Mich. 172 (74 N. W. 469, 39 L. R. A. 815, 72 Am. St. Rep. 512); McBryan v. Elevator Co., 130 Mich. 111 (89 N. W. 683, 97 Am. St. Rep. 453); Van Den Bosch v. Bouwman, 138 Mich. 624 (101 N. W. 832, 110 Am. St. Rep. 336); Detroit Trust Co. v. Machinery Co., 177 Mich. 156 (142 N. W. 1090), and cases cited.

In Button v. Trader, 75 Mich. 295 (42 N. W. 834), this court found an election of inconsistent remedies had been made, when the vendor sued and recovered for the debt, instead of retaking the property. To the same effect is Winton Motor Carriage Co. v. Automobile Co., 65 Wash. 650 (118 Pac. 817, 37 L. R. A. [N. S.] 71), where it is said:

“What intention will the law impute to appellant by thus transferring this note?”

And the answer given being that, as it was transferred as collateral security to a loan made by the bank to appellant, its only value to the bank was like that of any other piece of negotiable paper, it is said, further:

“Some effort is made to distinguish between the effect of the assignment of this note as collateral security and an assignment of amóte upon sale thereof.”

It is held that no such distinction can be made, because to do so would be to take away from the note in the hands of the bank the very quality which it was intended to possess by the transfer to the bank, to wit, the quality of an absolute debt obligation, and that the subsequent taking up of the note by the vendor did not effect á retransfer of title to the property sold to the vendor, because it had already passed to the vendee. It is further said, after a review of decisions:

“Thus is emphasized the importance of keeping in mind the fact that the sale contract did not create a lien, but that it reserved an absolute title in the seller which was as absolutely to pass to the purchaser upon certain conditions. There is not the slightest question of security for a debt here involved.”

When by the terms of the agreement title was to remain in the vendor until the purchase price, and any judgment rendered thereon should be paid in full, taking the judgment was held not to pass title. Fuller v. Byrne, 102 Mich. 461 (60 N. W. 980). And in Pettyplace v. Manufacturing Co., supra, it was held that the reservation of title is not avoided or lost by the vendor accepting additional security for the debt. In Warner Elevator Manfg. Co. v. Building & Loan Ass’n, supra, it was held that the retention of title to chattels (an elevator) until payment of the purchase price was not inconsistent with the right of the seller to a mechanic’s lien against the property to which the chattels were attached. In this latter case the court speaks of the retention of the title as creating a lien, and of the right thereby evidenced as a reserved lien, but also sustained the proposition that the enforcement of a statutory lien does not necessarily imply that the debtor has acquired absolute title to the materials against which the lien is asserted. In Myres v. Yaple, supra, a buggy was sold, and it was stipulated that the title to the property sold should remain in the vendor until the note given therefor was fully paid; the stipulation being in the note. Plaintiff signed the note as surety. The vendee returned the buggy to the vendors, and by agreement the vendors resold it, took a note from the purchaser for the purchase price, retaining title, credited the amount thereof on the original note, and demanded pay for the balance. The plaintiff, the surety, who did not consent to the transfer of the buggy, paid the balance, and demanded the buggy of the second purchaser, who knew about the original note, and who had, because he knew about it, refused to buy it from the original purchaser. In the resulting action of replevin it was contended that plaintiff got no title to the buggy by purchasing or paying the note. It was said (60 Mich. 344, 345 [27 N. W. 538]) :

“Before the payment of the balance of this note or contract by the plaintiff, we have the ordinary case of a creditor [Bailey & Cahill] holding security for the payment of the debt of the principal debtor [Hulbert] , to wit, the contract retaining title to the buggy, and also the further security of Myres as surety.
“Now, as between Bailey & Cahill and Myres, when the plaintiff, as such surety, was obliged to pay, and did pay, the debt of the principal, an equity arose in his favor, by which he was entitled to have all the securities which Bailey & Cahill held against the person or property of Hulbert transferred to him, and to enforce such securities as fully as Bailey & Cahill could have done; and, for the purpose of obtaining indemnity from the principal, he must be considered as at once subrogated to all the rights, remedies, and securities of the original creditors. * * *
“When Hulbert consented that the possession and contingent title to the buggy might pass to the defendant, instead of to himself, and it was delivered to defendant, Yaple knew of the existence of the original contract, and the shape it was in, and that Myres was surety upon it. Bailey & Cahill did not cancel this original undertaking and contract as to the title or security. No change whatever was made in it, except the indorsement of the $50 upon it. The title remained in Bailey & Cahill, and was in them at the time Myres paid the balance upon the contract.
“Upon the payment of such balance the plaintiff became entitled to, and received, the security held by Bailey & Cahill, which was the legal title to the possession of the buggy. In default of payment of the balance he paid, and which he demanded before suit of the defendant, he was entitled to the possession of the buggy.
“The plaintiff’s equities are superior to the defendant’s, because they are prior in time, and also because the defendant can occupy no more favorable position than Hulbert, who was really his vendor; and he had full notice of Myres’ position as surety, and the terms of the contract, when he gave his note for the buggy. As he is also insolvent, and has paid no money, there will be no great hardship in his relinquishing the buggy if he cannot pay plaintiff’s just lien upon the property.”

The idea of a lien reserved by the vendor is not out of harmony with the idea of an assignment of the lien, with the assignment, or sale, of the notes; a passing of the security as a right appertaining to the choses in action. It is reasonable, therefore, to say, and the conclusion is abundantly supported by authority, that whoever held one of the notes as owner possessed also the right, upon default in payment of the note, to possession of the car. What plaintiff will do with the car we cannot know. Treating the sale of each note as an assignment pro tanto of the security, it is to be presumed that he will not invade any right of the holder of the other note. But I think the defendant was not entitled, as against either note holder, to retain possession of the car. As to him it can be sold but once, and the sum received applied upon his debt.

I am also of opinion that, upon defendant’s refusal to pay the note held by plaintiff, the statement by the plaintiff that he must then take the car was a sufficient demand by a security holder entitled to possession of the property subject to the- lien.

The judgment is affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    PEOPLE v. FRONTERA.
    1. Criminal Law — Homicide—Murder—Manslaughter.
    Since information gained by a police officer or detective from statements made to him is hearsay, it was not an improper exercise of discretion, on cross-examination, to exclude an interrogatory as to what eyewitnesses the witness, a detective, had discovered who told a story different from that related by the witnesses for the prosecution, on a trial for murder.
    2. Same — Trial—Exceptions.
    An exception, without securing a ruling or some action of the trial court, is not a sufficient basis to assign error for the review of improper argument of the prosecuting attorney.
    8. Same — Charge—Alibi.
    And respondent’s request, in relation to an alibi and its effect, was not erroneously refused by the trial judge who fully and fairly instructed the jury upon the issues, and the degree of proof necessary to convict, and upon the rule of reasonable doubt.
    Error to recorder’s court of the city of Detroit; Connolly, J.
    Submitted April 23, 1915.
    (Docket No. 121.)
    Decided June 7, 1915.
    Tony Frontera was convicted of manslaughter.
    Affirmed.

      Grant Fellows, Attorney General, and ■ Charles H. Jasnowski, Prosecuting Attorney, and William M. Heston, Assistant Prosecuting Attorney, for the, people.

      Chawke & Sloan, for respondent.
   Ostrander, J.

In the evening of June 6, 1913, shortly after 8 o’clock, two men, after some verbal hostilities, engaged in a fist fight in a street in Detroit, during the progress of which, after blows had been exchanged, one of them, the smaller man, shot and killed the other and fled. There were five witnesses who stood within a few feet of the men. One testified that the smaller man said, before shooting, “Stop, or I will shoot;” one testified that he said, “I will shoot you;” three testified that he said nothing. The slayer was seen to run east on Lamed street, and between two houses, one of them being numbered 115 East Larned street. The police were present in a few moments, and in the house No. 115 found and arrested the respondent. He was identified by those who witnessed the affair. He is an Italian, and the man who was shot, named Dean, was an American. Informed against for murder, respondent was convicted of manslaughter, was denied a new trial, and was sentenced.

He complains that various errors were committed at the trial, and to understand his contentions it is necessary to say that, in addition to establishing the fact that a homicide had been committed, two principal issues were presented — one, that respondent was not the man who fired the shot; the other, that the homicide was justifiable. Four witnesses testified that they saw a man' running east on Larned street, who turned in between the houses as above stated, and that respondent was not the man. Of these, one was an American and three were Italians — one a cousin of respondent, one a lifelong friend, and one had known him for 10 years. A brother-in-law and another roomer at No. 115 testified that respondent was in the house at the time of the shooting.

A witness for the people was Jacob Golden, a detective, one of two in charge of the case. Upon his cross-examination, counsel for respondent sought to learn from him whether he knew of persons who claimed to have any knowledge of the affair who had not been brought in as witnesses. The witness stated that a lady at No. 99 East Larned street saw a man fun by her place, but could not identify respondent as the man. He was then asked, “Now, is there any one else that you can think of?” and the court remarked, “I think that is hearsay.” Discussion followed, in the course of which respondent’s counsel said, in substance, that his client should have the benefit of such information as the officer had, “and, if your honor lets him answer my questions, I may get some information out of him.” The court replied, “I think it is hearsay, what somebody else told him,” and respondent excepted. It is urged that there might have been witnesses, even eyewitnesses, known to the prosecution, favorable to respondent, whose names were not upon the information, and who were not called. I find no error in the ruling, although perhaps a better reason for it might have been assigned. Whatever an officer learns from others concerning the facts of a particular case is hearsay when related by him. But what counsel sought was to learn whether, from what they said to the officer, any of those interrogated appeared to be important witnesses. It will hardly be contended that it is the rule that an officer who has been employed in searching for witnesses, and has interviewed many, or few, persons, may be upon the trial interrogated concerning what the people who were interviewed, or who volunteered information, said to him. In no other way, in this case, could the testimony disclose matter of any importance to respondent. The witness had answered the question, “Do you know the names of any other witnesses on our side of this case that you called in?” by saying, “I got all the witnesses.” The question immediately preceding the one to which the answer was excluded was, “You heard others giving a different version, but you did not take their names?” and was replied to by the reference to the lady living at No. 99 East Larned street. The discretion of the trial court was fairly exercised.

Remarks of the prosecuting attorney in argument to the jury are complained about, principally upon the ground that they contrasted, or were intended to do so, foreigners, Italians especially, and American citizens. The argument is open to this criticism. But the purpose of the trial of a criminal cause is to determine, in a proper way, the guilt or innocence of the accused, and finally. The court sits to see that this is done, and counsel are supposed to aid the court; in any event, to call the attention of the court to any failure to proceed with propriety. Examination of the record discloses the fact that with respect to the point now noticed counsel for respondent contented himself with entering exceptions, without requesting rulings. The rule in criminal and civil causes is- that the attention of the court shall be directed to alleged improper argument and its propriety at once determined. We do not say that in the trial of a criminal cause the abuse of argument may not be so flagrant and clearly prejudicial that because of it a conviction will be set aside, though no exception is taken to the argument as it proceeds. But it should be and it is the rule that conduct which counsel deems prejudicial to the interests of a client shall be corrected by the trial court, if correction is possible. In this case, in his charge the learned recorder said:

“Now, I charge you, gentlemen of the jury, that you are to determine this case upon the law as I give it to you, and upon the evidence as you have heard it from the witness stand, and not upon any prejudice against the man, or against any class of men who may reside in this community, but solely upon the facts in evidence, and under the law as I give it to you.”

We are not impressed that the conduct of the prosecuting attorney is ground for a reversal. The debatable issues were simple, the case for the people upon each of them very strong.

Three assignments of error are based upon what the prosecuting attorney said in argument to the jury concerning an alibi, and in this connection it is complained that the court refused to give respondent’s request numbered 5, which was:

“While an alibi is a defense easily proven and hard to disprove, yet, if evidence of an alibi is given, which raises a reasonable doubt as to the defendant’s guilt, it makes out a perfect, and conclusive defense, and in such cases your verdict should be not guilty.”

It has been said (2 Wharton, Criminal Evidence [10th Ed.], p. 1833) :

“Of all exculpatory defenses, that of an alibi, clearly established by credible testimony, is most conclusive.”

The prosecuting attorney, while saying that “it is the refuge * * * of every convict that comes in here that hasn’t got any other defense,” and “the refuge of sinners,” two very general and probably exaggerated statements, discussed the case made upon this issue, by respondent’s witnesses, pointing out, argumentatively, that it was without merit. And the court said to the jury:

“Now, the claim is made here on the part of the prosecution that it was Frontera who killed Dean, and the claim is made on the part of the defense that it was not Frontera who killed Dean, but some other person. You must be satisfied beyond a reasonable doubt, first of all, of the identity of Dean’s assailant —of the man who killed Dean. And you must be satisfied beyond a reasonable doubt that it was Frontera. If you are not satisfied beyond a reasonable doubt that it was Frontera who committed the homicide, then you will acquit him. Even though you are satisfied beyond a reasonable doubt that it was Frontera who committed the homicide, you must be further satisfied beyond a reasonable doubt that he did it inexcusably or without legal excuse; that is, not in self-defense. If you are satisfied that it was he who killed Dean, and if you are further satisfied beyond a reasonable doubt that he did it not in self-defense, he would be guilty of a felonious homicide.”

There was further admonition to the same effect, and the language employed effectually and pointedly presented to the jury the issue whether respondent was the man who did the shooting. In view of the necessity for presenting to the jury the double aspect of the defense, that respondent did not do the shooting, and that it was done in self-defense, it is doubtful if better language could have been used. We hold that upon this point reversible error is not made out.

The other assignments of error, save only the last, which are noticed in respondent’s brief, relate to the charge and to refusals to charge as requested. They are without merit. The instructions concisely and admirably presented the actual case to the jury.

Of the refusal to grant a new trial it is said in the brief that:

“In our opinion the matters set forth in the affi-. davits in support of the motion for a new trial were sufficient to entitle defendant to a new trial, and we submit that the court erred in refusing to grant same.”

There is no discussion of the matter. The record contains the affidavits relied upon and affidavits in opposition. Nine persons make affidavit that- a man whom they saw running, or taking part in the affray in the street, or both, was not the respondent. An investigation followed the filing of these affidavits, the results of which were presented in counter affidavits, and we are impressed, as the recorder was, that they do not require the granting of a new trial.

Affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    YOUGHIOGHENY & OHIO COAL CO. v. ANDERSON.
    Assignment for Benefit of Creditors — Debtor and Creditor — ■ Validity — Statutes—Trusts—Sales.
    Tiie transfer of an entire stock of merchandise and fixtures to be distributed pro rata among creditors of tbe transferor, but not complying with the requirements of 3 Comp. Laws, § 9539 (5 How. Stat. [2d Ed.] §14165), as to filing with the clerk of the circuit court and the execution of a bond, or giving notice to the interested parties, also omitting from its operation part of the assets of the debtor, was void at the instance of one of the creditors.
    Error to Alpena; Connine, J.
    Submitted April 14, 1915.
    (Docket No. 89.)
    Decided June 7, 1915.
    Garnishment proceedings by the Youghiogheny & Ohio Coal Company, a foreign corporation, against Samuel B. Kahn, garnishee of Joseph Anderson, principal defendant. Judgment for defendant garnishee. Plaintiff brings error.
    Reversed.
    O. H. Smith, for appellant.

      Henry R. MaeGillis, for appellee.
   Stone, J.

Joseph Anderson, the principal defendant, was the owner of a stock of groceries and meats in the city of Harrisville, which he transferred to one John A. Stewart by bill of sale. The latter in turn sold the same to the garnishee defendant. Both sales were in violation of Act No. 223, Pub. Acts 1905, known as the “Sales in Bulk Act.” The plaintiff sued and obtained a judgment against the principal defendant for $161.80 damages and costs $2.30, and garnished Kahn. Upon a trial of the garnishment suit in justice’s court the plaintiff recovered, but upon an appeal to the circuit court a verdict and judgment were directed for the defendant. The plaintiff has brought the case here for review, and, assigning error upon the charge of the court, claims that the court erred in not directing a verdict for the plaintiff. The history of the matters leading up to the suit are as follows: The principal defendant was indebted to the plaintiff for goods sold to him previous to the date of the bill of sale. On March 20, 1913, the principal defendant gave to John A. Stewart a bill of sale:

“Know all men by these presents, that Joseph Anderson, of the city of Harrisville, in the county of Alcona, and State of Michigan, of the first part, fpr and in consideration of the sum of one hundred dollars ($100) and other valuable considerations, lawful money of the United States, to him paid by John A. Stewart of Harrisville, Michigan, of the second part, the receipt whereof is hereby acknowledged, has bargained and sold, and by these presents does grant and convey unto the said party of the second part, his executors, administrators and assigns, all the following goods and chattels, to wit: The entire stock of goods and fixtures and store furniture and all the equipment that said first party has for the running of the said business, also all books and accounts belonging to said party of the first part, and all obligations due him reserving only to himself that which the law gives him by way of exemptions, belonging to said party of the first part and now in his possession at the said city of Harrisville, Alcona county, to have and to hold the same under the said party of the second part, his executor, administrator and assigns forever. And the said party of the first part for himself and his executors, administrators and assigns, does covenant and agree to and with the said second party, his executors, administrators and assigns, to warrant and defend the sale of the said property, goods and chattels hereby made unto the said party of the second part, his executors, administrators and assigns against all and every person or persons whatsoever except as to the creditors of said party of the first part.
“In witness whereof I have hereunto set my hand and seal this 20th day of March, A. D. 1913.
“Joseph Anderson.”
“Signed, sealed, and delivered in the presence of James H. Miller and F. E. Anderson.”

No statutory inventory was made previous to the transfer, and no certified list of creditors was made in accordance with the provisions of the statute. Mr. Stewart took possession of the stock, and the bill of sale was filed with the city clerk. Mr. Stewart paid nothing for the stock, but appears to have taken steps in the interest of the principal defendant to sell the same for the benefit of the creditors of the latter. On April 18, 1913, Mr. Stewart wrote the plaintiff the following letter:

“Harrisville, Mich., April 18, 1913. “The Youghiogheny & Ohio Coal Co.,
“Cleveland, Ohio.
“Gentlemen:
_ “Mr. Joseph Anderson made an assignment of all his goods, fixtures and books of account to me for the benefit of creditors. Now if it will be satisfactory to you, and the other creditors, I will sell the stock of goods and fixtures and book accounts on April 24th next, to the highest bidder, and divide the proceeds among the creditors. Your name was handed to me with the other creditors, but in some way or other, I missed you in sending out the notice by registered mail. Let me hear from you by return mail. The inventory shows $1,500 stock and fixtures; $885 book accounts which is not very good, and the debts will run over $3,200. Now, to sell the whole thing we probably get $1,200 or $1,500 to be divided among the creditors. If you would rather have the business go through bankruptcy, let me know.
“Yours truly,
“John A. Stewart.”

Plaintiff did not reply to this letter, but sent its claim to an attorney. In pursuance of a notice given by Mr. Stewart, a public sale of the stock and fixtures was made on April 24, 1913, for the sum of $749, including Anderson’s exemptions of $250, leaving net $499. The garnishee defendant paid for the grocery-stock and some fixtures $360, Mr. Stewart bought in the book accounts for $15.

Upon the trial of the case in the circuit court, Mr. Stewart testified:

“The purpose of the bill of sale was for me to take possession of everything that Anderson had, except his exemptions, and distribute it among all the fellows that he owed, just as the law — pro rata it — divide it pro rata among the creditors.”

He also testified:

“There was no arrangement between Mr. Anderson and myself whereby the surplus, if any, would go back to Anderson. I have not paid for the goods yet, and have not turned over the money to the creditors as yet.”

Upon the trial of the case it did not appear that the bill of sale included all of the property of Anderson, but it did affirmatively appear that he had a horse that was not included in the transfer. At the trial it was the contention of the garnishee defendant that the transfer to Mr. Stewart was a voluntary assignment for the benefit of the creditors of Anderson, under the provisions of chapter 260, 3 Comp. Laws. The trial court took that view of the case, and directed a verdict and judgment for the defendant. At the close of the evidence counsel for plaintiff requested the court to direct a verdict for the plaintiff. This was refused. There is no evidence in the record that the parties in making the transfer ever attempted to comply with the provisions of chapter 260, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14165 et seq.). No bond was given. Nothing was filed with the clerk of the circuit court. By section 9539 it is provided that:

“Such assignment shall convey to the assignee all property of the assignor not exempt from execution, and all rights, legal or equitable of said assignor: Provided, that no such assignment shall be effectual to convey the title to the property of the assignor to the assignee until such bond shall be executed, filed with, and approved by said clerk.”

It is further provided that the assignment shall be void unless it is of all the property of the assignor, not exempt from execution, and unless such instrument of assignment, inventory, etc., shall be filed with said clerk within 10 days after the making thereof. We are of the opinion that the proceedings were invalid as an assignment for the benefit of creditors. McCuaig v. Savings Bank, 111 Mich. 356 (69 N. W. 500), and cases cited; Beard v. Clippert, 63 Mich. 716 (30 N. W. 323).

It is therefore unnecessary to decide whether the “Sales in Bulk Act” applies to and governs a valid assignment for the benefit of- creditors.

We think that the trial court erred in not directing a verdict for the plaintiff, as the record appeared. The judgment is reversed, and a new trial granted.

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Per Curiam.

text:
    CONLON v. WAYNE CIRCUIT JUDGE.
    Partition — Costs—Soucitor’s Fees — Mandamus—Attorney and Ciient.
    No lien is given by statute to the solicitor of one of tbe parties in a partition suit, or to tbe clients (3 Comp. Laws, § 11080; 5 How. Stat. [2d Ed.] §13277), and bence mandamus will not lie to require tbe co,urt to determine tbe amount of solicitor’s fees and award a lien upon a fund obtained from tbe sale of tbe real property, and to create wbicb bis services did not contribute.
    Mandamus proceedings by Thomas A. Conlon against George P. Codd, one of the circuit judges for the county of Wayne to compel respondent to vacate an order denying relator an attorney’s lien upon funds in the hands of the court.
    Submitted April 27, 1915.
    (Calendar No. 26,510.)
    Writ denied June 7, 1915.

      Neal M. Hebinger, for relator.

      A. G. Pitts, for respondent.
   Per Curiam.

A certain fund arising out of the sale of lands in partition proceedings is in the hands of or under control of the circuit court. Respondent, one of the judges of the court, denied relator an order fixing his fees as solicitor for some of the parties interested in the fund and giving him a lien upon the fund. He applies to this court for a writ of mandamus to compel the setting aside of the order refusing him relief. The return of respondent, which must be taken as true, and which is, in fact, supported by the record, shows that relator, while he has undoubtedly performed services for parties to whom portions of the fund belong, performed no services in the creation of the fund. The sum which either of relator’s clients owes him is in dispute.

The statute (3 Comp. Laws, § 11080 [5 How. Stat. (2d Ed.) § 13277]), gives no lien to relator’s clients upon the fund. The fund is not a judgment obtained by the services of relator. See Greusel v. Smith, 85 Mich. 574 (48 N. W. 616); Barbour v. Patterson, 145 Mich. 459 (108 N. W. 973). We are therefore of opinion that the court was right in refusing to fix the amount of relator’s demand and in denying his right to a lien.