text:
    LAUBENGAYER v. ROHDE.
    1. Equity — Pleading—Demurrer.
    A oomplainant’s bill in equity on demurrer is to be tested by its allegations if taken as true rather than by its prayer for relief.
    2. Same — Fraud—Vendor and Purchaser.
    Fraud is sufficiently charged in a bill of complaint which avers that defendants, in order to induce complainant to purchase a parcel of land, falsely represented that a certain strip 15 feet wide was included within the boundaries, that complainant, in reliance on the truth of such representations, bought the property and was induced to forego an examination of the records believing that the deed executed by defendants contained all the lands lying between the boundary lines and courses pointed out to him, that in fact such strip was not included in the description in the deed.
    2. Same.
    Courts of law and equity have concurrent jurisdiction in oases of fraud, and suit may be instituted on the equity side of the oourt where complainant is shown to be entitled to relief of a purely equitable nature.
    4. Same.
    But a bill of complaint for fraud which does not charge that defendants are financially irresponsible and asks only for a money judgment is demurrable on the ground of adequacy of complainant’s remedy at law.
    5. Same — Rescission.
    The claim that the complainant is seeking to rescind a deed in his possession which he has declared rescinded, offering to reconvey the property to defendants, is not sufficient to confer jurisdiction on the court of chancery.
    6. Same — Accounting.
    Without a showing of mutual demands, a series of transactions on one side, and payments on the other, complainant was not entitled to an accounting.
    7. Same — Specific Performance.
    The court would not be authorized to enter a decree requiring defendants to purchase the 15-foot strip of its owners who were not made parties defendant, and enforcing a conveyance of the parcel to complainants.

      8. Same — Election of Remedies.
    A party claiming damages for fraud may rescind the transaction and recover back the purchase price with interest and such additional damages as he may have suffered, or he may, at his election, retain the subject-matter of the transaction and recover his damages for the alleged deceit.
    Appeal from Washtenaw; Kinne, J.
    Submitted November 8, 1911.
    (Docket No. 66.)
    Decided December 8, 1911.
    Bill by Frederick Laubengayer against Magdalene' Rohde and William H. L. Rohde for rescission of a purchase of real property, for damages for fraud and other relief. From an order overruling a demurrer to the bill, defendants appeal.
    Reversed and bill dismissed.

      A. J. Sawyer & Son, for complainant.

      Arthur Brown, for defendants.
   Steere, J.

Defendants have appealed from an order of the trial court overruling the demurrer to complainant’s bill. The bill charges fraud on the part of the defendants in selling certain real estate to the complainant. The demurrer claims want of equity in the bill, and that, complainant has an adequate remedy at law.

Complainant’s bill states: That he is a resident of the township of Scio, in Washtenaw county, and has devoted his life principally to farming; that the defendant Magdalene Rohde is the widow of Louis Rohde, deceased, and William H. L. Rohde is her son; that they both reside in the city of Ann Arbor; the son being engaged in the coal business in that city; that on the 3d day of May, 1909,. complainant bought of the said Magdalene Rohde a certain piece óf real estate in the city of Ann Arbor on which he proposed to engage in the coal business; the property being described as:

“ Commencing on the north line of West Huron street at the west boundary line of the Ann Arbor Railroad Company’s right of way, and running from thence west along the north line of Huron street 180 feet to the west bank of the west branch of Allen’s creek, so called; thence along the west bank of Allen’s creek one hundred and sixty-two and eight-tenths (162.8) feet to the center line of block 1 north of Huron street, range 1 east; thence east along said center line 50 feet to the east bank of the east branch of Allen’s creek, so called; thence northerly along said east bank of said creek to the railroad company’s right of way aforesaid; thence southerly along said right of way to the place of beginning; excepting and reserving a strip of land 15 feet wide lying westward of and adjoining said railroad, heretofore conveyed by said Louis Rohde and wife to the said railroad company by deed recorded in Liber 161, p. 74.”

Complainant’s charge of. fraud relates to said strip of land 15 feet wide. He alleges that said William H. Rohde, acting as agent for his mother, took charge of all negotiations leading up to and culminating in the sale, acting for and on behalf of himself and his mother. The manner of perpetrating the fraud is stated in the bill, in substance, as follows: That said land is situated on the north side of said Huron street and west of the viaduct over which the Ann Arbor Railroad tracks cross Huron street; that in construction of said viaduct a cement retaining wall was built at or near the north line of said West Huron street, and was standing at the time of the negotiations and sale of the property; that, in order to induce the complainant to purchase the ground, said William H. Rohde went upon the same with the representatives of said complainant to point out the corners and boundary lines thereof, and while there falsely and fraudulently stated, represented, and pretended that the east line of said land was bounded by a line starting at a point in said retaining wall of said viaduct on the north side of Huron street indicated by a mark and puncture made in said wall, which he then pointed out; that he offered for and in behalf of himself and mother to sell and convey the land he pointed out in accordance with the courses, corners, distances, and directions as he then indicated; that the complainant and those representing him had full confidence and faith in the honesty, integrity, and truthfulness of said defendants, and fully believed the representations there made relative to the dimensions of the land and the boundaries thereof, and, relying upon the same, were induced to forego any examination of the record title to said 15-foot strip or any other portion thereof contained between the corners, courses, distances, and lines of said land so pointed out; that on the strength of said representations as to such lines, courses, and distances as then shown, complainant purchased the property and paid defendants the sum of $2,000 therefor, at once proceeding to erect thereon and press to completion as speedily as possible a system, of coal sheds, office buildings, etc., at an expense of $1,766.48; that as a matter of fact the east boundary line of the lands purchased by complainant did not run from the marks made in said retaining wall of said viaduct, and the deed given complainant did not include the strip of 15 feet heretofore mentioned and so pointed out as part of the property purchased; that complainant first learned of this in the fall of 1909, when officials of the Ann Arbor Railroad Company called his attention to it, and proposed to give him a lease of said strip; that he even then supposed that he owned this strip in question, but, upon submitting the same to experts, he was informed that the piece of property was not included in his conveyance from defendants; that he thereupon, immediately after discovering the fraud, tendered a reconveyance of the property to said Magdalene Rohde and demanded a return of the purchase price and money he had expended on the property, which was refused, following which he executed a deed conveying back to said Magdalene Rohde the property which he had purchased and made a tender of said deed, renewing his demand for a return of his money, which she again refused. He alleges that without this 15-foot strip the land covered by his deed is of no value to him for his purposes, and of but little value for any purpose whatever.

Complainant asks in his prayer for relief: That said deed hearing date May 3, 1909, from defendant Magdalene Rohde to him, be set aside and declared null and void upon condition that the said defendants, either or both of them, shall pay to him the sum of $3,766.48. That if defendants shall fail to pay to him the amount of money aforesaid and refuse to receive back the conveyance title of the property contained in said deed, he shall recover by the order and decree of this court a judgment against said defendants jointly for the sum of $3,766.48. Or that said defendants shall acquire and convey to him, by full covenant warranty deed, the title to said 15 feet by or before such date as in the judgment of the court shall be deemed proper and equitable. That he may have such further and other relief in the premises as shall be agreeable to equity and good conscience.

The objections to the bill, as specified in defendant’s demurrer, are summarized as follows: It appears from the allegations of the bill that complainant has complete and adequate remedy at law; that he was in no way deceived by said defendants; that by the exercise of reasonable care he would have known the true boundaries of the land sold to him; that he has been guilty of laches and is not entitled to any relief prayed for in said bill.

The trial court, overruling the demurrer, said:

“The specific relief sought in the several prayers for relief contained in the bill of complaint is of doubtful right, but there may be some relief granted under the general prayer therefor.”

Complainant’s rights are to be tested by the allegations in his bill taken as true, rather than by his prayer for relief.

The bill charges, with sufficient allegations, fraud on the part of defendants in representing to complainant that the strip in question was a part of the land he was purchasing; that he relied on the representations then made, and thereby was induced to forego any examination of the records, fully believing from such representations that the deed of the property executed and delivered to him contained all the lands lying between the corners; lines, courses, and distances pointed out and shown him and his agents by defendants; that immediately on discovering the fraud he rescinded and tendered reconveyance, with demand for return of the purchase price and the money he had honestly invested in improving the property.

In the light of Starkweather v. Benjamin, 32 Mich. 305, and other authorities along the same lines, we are not disposed to sustain the demurrer on the objection that the bill does not state a case of actionable fraud.

The most serious ground of demurrer urged is that complainant has an adequate remedy at law, which precludes jurisdiction in equity. That courts of law and equity have concurrent jurisdiction in cases of fraud is well settled, and it is also well settled in this State that a suit may be planted on the chancery side of the court where complainant is shown entitled to relief especially equitable. The question has been before this court in numerous cases, and thoroughly discussed. A comprehensive review of many of the decisions is to be found in Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036. In Detroit Trust Co. v. Old Nat. Bank, 155 Mich. 61 (118 N. W. 729), it is said:

“In this State equity has not taken jurisdiction of cases where a suitor has a full, complete, and adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity.”

It was further pointed out in that case, as reasons for sustaining a demurrer, that the allegations in the bill did not show need of an injunction, or of a discovery, or of an accounting, or of specific performance, or the reformation or cancellation of a written instrument, and there was nothing to indicate that a judgment against defendants would not be perfectly good.

In the case at bar there is no claim that defendants are financially irresponsible, or a judgment against them doubtful; according to the scheme of complainant’s bill, all he seeks and all he is entitled to in the end is a money judgment for the damages he has sustained.

Complainant’s counsel say he asks for a rescission, an accounting, and the setting aside of a written instrument. The allegations in the bill present nothing which entitles the complainant to an accounting. To sustain a bill for an accounting there must be mutual demands, a series of transactions on one side, and payments on the other. "Where all the items are on one side, there can be no accounting. The bill shows no items of which the complainant is not fully informed, and the only items involved are the money complainant paid for the land and money expended by him in its improvement.

The deed which he asks the court to set aside is entirely in his hands and under his control. He has already, according to the allegations of the bill, rescinded and tendered a reconveyance of the property, which amounts in legal effect, so far as his rights are concerned, to setting aside the deed, so long as he maintains his tender and stands ready to perform.

It is patent from the allegations in the bill that it would be a vain thing for the court to order the specific performanee proposed. Defendants do not own, and did not own at the time of complainant’s purchase, the strip he asks the court to direct them to deed to him. The prayer that the defendants be compelled to buy and deed it to complainant could not be seriously entertained. The owner is not a party to this suit. A bare statement of the proposition manifests its infirmity. No court has power to initiate and force to consummation the sale of real estate by disinterested owners, in no way connected with the litigation. We find nothing in the allegations of complainant’s bill which especially calls for the intervention of a court of equity or precludes full recovery in a suit at law. The complainant’s ultimate object is a money judgment for damages.

In this State the remedy, where a money judgment is sought, is less complicated and more complete than in many jurisdictions. Under the common law and under the practice which obtains in many States, a party claiming damages for fraud has the election of rescinding, as complainant alleges he has done, and suing to recover back the purchase price with interest, or of keeping the property and bringing an action for deceit to recover damages sustained by reason of such deceit. Under our practice the law permits an action for damages with or without rescission, and if with rescission a recovery of the purchase price with interest and such additional damages as plaintiff may have suffered by reason of losses and expenses incurred in that connection which were the natural and reasonable consequences of the fraud perpetrated. Warren v. Cole, 15 Mich. 265; Lenox v. Fuller, 39 Mich. 268.

The practice is further simplified by section 10421, 3 Comp. Laws, authorizing an action in assumpsit in all cases where by the fraudulent representations or conduct of any person an injury has been suffered either to the person, property, or rights of another for which an action on the case for fraud or deceit may by law be brought. This section has been held constitutional and has been frequently before this court for review.

It is the opinion of this court that an adequate remedy at law exists according to the case stated in complainant’s bill, and that the demurrer should have been sustained, and the bill dismissed.

Reversed, and bill dismissed, with costs of both courts.

Ostrander, C. J., and Moore, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    A. BACKUS, JR., & SONS v. DETROIT RIVER TUNNEL CO.
    1. Attorney and Client — Principal and Agent — Authority to Discontinue Without Costs.
    Whether or not an attorney at law has authority to discontinue by stipulation, without costs to either party, proceedings in eminent domain brought against his client under 2 Comp. Laws, § 6242 et seq., he has such authority where the client has previously entered into an agreement with the petitioner providing for the dismissal of the proceedings.
    2. Contracts — Construction— Stipulation — Discontinuance— Costs.
    Under a compromise agreement made by plaintiff and a railroad corporation that was engaged in constructing a tunnel by and in the name of defendant tunnel company, whereby the railroad corporation purchased plaintiff’s property and both parties agreed to discontinue without costs all pending litigation, proceedings for the condemnation of part of plaintiff’s property, commenced in the name of the tunnel company, which later had voluntarily asked to discontinue the proceedings, were included in the compromise, and though the costs therein had been taxed summarily by the trial court, and remained unpaid, defendant was not liable for the amount thereof.
    Error to Wayne; Rohnert, J.
    Submitted November 9, 1911.
    (Docket No. 73.)
    Decided December 8, 1911.
    Assumpsit by A. Backus, Jr., & Sons, a corporation, against the Detroit River Tunnel Company. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Albert McOlatchey, for appellant.

      J. TV. Dohany (Henry Russel, of counsel), for appellee.
   Ostrander, C. J.

A condemnation proceeding was instituted in the circuit court for the county of Wayne by the Detroit River Tunnel Company, in which the plaintiff herein, a corporation, was described as owner of the land sought to be taken in the proceeding. The petition therein was signed by the Detroit River Tunnel Company, by O. E. Butterfield, its attorney. It is provided by law (2 Comp. Laws, § 6246) that it shall be competent for the company, upon cause shown and with leave of the court, to discontinue all pending proceedings in any such case at any time before the report of the jury or commissioners shall be made to the court; “ but the company in all such cases shall pay all the costs of such proceedings so discontinued, with an attorney fee, to be taxed as in cases at law.” It does not appear that any order was ever made or entered discontinuing the said proceeding. The record in the case at bar contains an opinion of one of the judges of the Wayne circuit court, entitled “ Detroit River Tunnel Company, a Corporation, Petitioner, v. A. Backus, Jr., & Sons, a Corporation, Respondent,” in which it is recited that—

“A motion is made by the petitioner to dismiss the jury impaneled in this cause, and to discontinue all pending proceedings.”

The statute (§ 6246) is quoted in the opinion, and, after the quotation:

“ I feel that no sufficient or reasonable cause has been shown for the dismissal of this jury, and for the discontinuance of these proceedings, after 20 days having been consumed; * * * but if it is the disposition of the petitioner to have the jury dismissed, and to discontinue the pending proceedings, it may do so, provided, the petitioner first pays to the respondent the following costs, * * * and an order may then be made and entered accordingly, dismissing the jury and discontinuing said pending proceedings.”

There follows a bill of items of costs, verified by the secretary and treasurer of said respondent, apparently approved by the court, amounting to the sum of $2,233.80. This opinion is dated July 17, 1907, and the affidavit to the items of costs appears to have been made July 16,1907. It appears from oral testimony that at some time Mr. Butterfield told the jury the tunnel company had decided to discontinue the proceeding, to wait awhile, and the judge would formally dismiss them; that the jury waited, the judge was busy, it was arranged that the jury need not come back, but that Butterfield would then and there, and he did, send for money to pay, and paid, the jury, and the judge dismissed them. This testimony was given by one of the jurors. No new proceeding was instituted. The bill of costs referred to was never paid.

This action, which is in assumpsit, is brought to recover the said sum of $2,233.80. With its plea of the general issue, the defendant gave notice that it would show in its defense, among other things:

(1) That the claim for which the suit is brought, as set up in the declaration, has been fully satisfied and discharged ; (2) that according to an agreement made and entered into between the parties on December 24, 1908, it was, among other things, agreed that all pending litigation should be discontinued without costs to either party; (3) that on the first day of February, 1909, the proceedings in which said costs are alleged to have been taxed was by the parties discontinued without costs to either party.

Upon the trial of this issue, the facts already stated appeared, and, in addition thereto, that at some time, not disclosed by the bill of exceptions, but which the brief for appellant says was November 28,1908, the defendant, the Detroit River Tunnel Company, the Michigan Central Railroad Company, and Butler Brothers-Hoff Company, as complainants, joined in a bill of complaint against A. Backus, Jr., & Sons and the Dime Savings Bank as defendants, praying among other things, for a decree setting aside a certain conveyance of the land involved in the condemnation proceeding as a cloud upon the title of the complainants, and for an injunction. The original bill was offered and received in evidence, and we think properly so, for the purpose of showing the matters at issue and the parties in interest. It sets out that the Detroit River Tunnel Company was organized for the purpose, among other things, of constructing a double-track railroad tunnel under the Detroit river and adjacent lands between the city of Detroit, Mich., and the township of Sandwich West, in Ontario, in Canada; that the railroad company operates a railroad upon and over the piece o£ land the title to which was involved; that the Butler Brothers-Hoff Company is a New York corporation ; that the defendant bank held a mortgage upon the piece of land in question, with other lands, but otherwise had no interest in the subject-matter; that the defendant A. Backus, Jr., & Sons claims title to the said piece of land and operates a planing mill or box factory upon lands adjacent thereto; that the said tunnel company, in July, 1906, received from the said railroad company a deed of the right to use for tunnel purposes below the grade of said railroad a strip of land which included the parcel of land in question; that the tunnel company, pursuant to the purposes of its organization, entered into a contract with the Butler Brothers-Hoff Company for the construction upon the land and right of way conveyed by the railroad company of a double-track tunnel underneath the Detroit river and adjacent lands about 12,800 feet in length, to cost, approximately, $7,000,000; that after the work of construction was begun the tunnel company was advised that the Backus Company claimed title to the particular piece of land underneath which it was the design of the tunnel company to construct its tunnel, said land being in area about .035 of an acre and unoccupied except by the railroad tracks, unloading platforms, and rolling stock of the railroad company; that, acting upon the supposition that said piece of land belonged to said defendant, the Backus Company, and was of trifling value, and that the construction of the tunnel 30 feet underneath the same was likely to cause little or no damage thereto, the said tunnel company instituted proceedings under the statute for the purpose of condemning for public use the interest of the said defendant Backus Company in said parcel of land; that in the condemnation proceedings the taking of testimony before a jury continued for some days, the defendant the Backus Company made no question of the necessity for appropriating the land to the public use, but represented to the jury that the construction of the tunnel might cause the soil to settle upon that and adjacent lands, and that if it did settle it would be likely to result in damage to the planing mill and business of the Backus Company; that the extent of the business carried on by the said defendant in its said mill was sought to be grossly exaggerated for the purpose of securing an award far in excess of the fair value of the property sought to be taken and in excess of the damages which would be likely to result therefrom. The bill further sets out the various actions and methods taken by the said Backus Company to obstruct and prevent the building of the tunnel, which need not be here repeated, and charges further that upon investigation the complainants determined that the particular piece of land had been openly, continuously, and adversely occupied by the railroad company for more than 15 years before said railroad company deeded said land to the tunnel company; that the railroad company had a valid and subsisting title thereto in fee by adverse possession ; that in consideration of the facts and circumstances disclosed by said investigation the tunnel company discontinued said condemnation proceedings and caused the special jury to be discharged from the further consideration thereof.

What proceedings were taken in the said chancery suit we do not know. It appears that later, on December 2é, 1908, an agreement was made by the said railroad company and the Backus Company, which was reduced to writing, by the terms of which the railroad company was to purchase and the Backus Company was to convey to it, not only the land in question, but other lands owned and claimed to be owned by the Backus Company adjacent to the right of way of the railroad company for the sum of $250,000, and said Backus Company was to have a lease of the said property for one year without rent and one year within which to remove all personal property from the premises. The agreement concluded as follows:

“It is further agreed that all litigation now pending and unsettled shall be discontinued without costs to either party.”

It also appeared that the sum of money mentioned in said agreement had been paid, and that thereafter — that is to say, after such payment — two stipulations were made and filed, one entitled in the condemnation proceeding, the other in the chancery cause. In the condemnation proceeding, the stipulation reads:

“ It is hereby stipulated and agreed that the above-entitled proceeding may be and hereby is discontinued without cost to either party thereto.”

It is signed, Detroit River Tunnel Company, by Henry Russel, attorney, A. Backus, Jr., & Son, by W. I. Robinson. It was filed February 1, 1909. Mr. Robinson represented the Backus Company both in the condemnation proceeding and in the chancery cause.

Concerning the said disposition of the condemnation proceeding, the officers of the Backus Company, who were sworn as witnesses, professed to have no knowledge, and it is denied that any one was ever authorized to compromise or settle any claim for the costs in that proceeding or to dismiss the proceeding without costs or to waive the payment of costs. The circuit judge directed a verdict for the defendant, and judgment was entered on the verdict.

We are of opinion that the judgment should be affirmed. Without deciding whether an action would lie for the amount of the costs summarily allowed by the circuit judge under the circumstances disclosed, we think it is manifest that the agreement which has been referred to must be considered as made with knowledge of existing circumstances, including the one that the said costs had never been paid. The argument that Mr. Robinson had no special authority, and as attorney of record no general authority, to make the stipulation discontinuing the condemnation proceeding without costs, is answered by the statement that his principal had already agreed that this should be done. The Michigan Central Railroad appears to have been interested in fact by reason of its relation to the title to the land in dispute in the condemnation proceeding. It was interested in the chancery proceeding because it was a party thereto. At the time the agreement was made, the pending litigation referred to therein, if we speak by the record, was the condemnation proceeding and the chancery suit, and the agreement refers to “all litigation now pending and unsettled.”

The judgment is affirmed.

Steers, Moore, Brooke, and Stone, JJ., concurred.


author: Stone, J.

text:
    MILLS v. WARNER.
    1. Evidence — Preponderance—Appeal and Error.
    Plaintiff who appeals from an insufficient judgment is in no position to complain of the court’s failure to charge fully upon the rule as to the preponderance of evidence.
    2. Same — Assault and Battery — Personal Injuries.
    In an action for injuries sustained in an assault committed by defendant on plaintiff, not denied by defendant, evidence tending to show that plaintiff had charged defendant with cheating prior to the assault, was immaterial.
    8. Same — Impeachment—Witnesses.
    Nor was the testimony admissible to impeach plaintiff, who on oross-examination had denied making the charge.

      4. Same.
    Testimony concerning a controversy between plaintiff and defendant at a time preceding the alleged assault was irrelevant.
    6. Same — Damages—Mitigation—Provocation of Assault.
    it was error to admit testimony to' show that plaintiff had, shortly before the assault, stated to a third party, who told defendant, that defendant had stolen certain hay; such testimony was hearsay, and was too remote to be considered as provocation, nor could it be treated as in mitigation of the damages.
    6. Same — Threats—Impeachment of Party.
    Evidence of threats made by plaintiff to arrest defendant, after the time of the assault, was inadmissible on the examination .of defendant’s witnesses, although it was proper to show plaintiff’s state of mind as a witness upon his cross-examination.
    Error to Kent; McDonald, J.
    Submitted November 9, 1911.
    (Docket No. 82.)
    Decided December 8, 1911.
    Case by Ephraim E. Mills against Charles Warner for an assault and battery. A judgment for plaintiff for less than the amount claimed is reviewed by plaintiff on writ of error.
    Reversed.

      Adsit & Darihof, for appellant.

      Earl It. Stewart, for appellee.
   Stone, J.

This is an action of trespass to recover damages for an assault and battery alleged to have been committed by the defendant upon the plaintiff on the 9th day of November, 1908. The plaintiff was at the time upwards of 70 years of age, and the defendant was about 40 years of age.

It was the claim of the plaintiff that on the day in question he went upon the farm of one Mrs. Tiffany for the purpose of doing some work for her, and that he there met the defendant, who was also employed on said farm, working a portion of the same on shares. An altercation took place between the parties, the defendant charging the plaintiff with having reported the story that he had stolen some of Mrs. Tiffany’s hay and other property. The plaintiff denied that he had reported any such story, and hot words were passed between the parties; and it is not denied that the defendant struck the plaintiff one or more blows in the face. The plaintiff claims to have been severely and permanently injured, that one or more of his teeth were knocked out, and that he suffered for some time thereafter from the effects of the assault and battery. Upon the same day the defendant went before a justice of the peace in the township and pleaded guilty to the charge of assault and battery upon the complaint of his own brother. He was fined $2 and $1 costs. The plaintiff, not knowing of this proceeding, made a complaint before a justice of the peace in the city of Grand Rapids, which last proceeding was dismissed by the prosecuting attorney upon learning of the former complaint. This suit was commenced by capias in the circuit court. To the declaration charging assault and battery the defendant pleaded the general issue, with notice of justification. The trial resulted in a verdict for the plaintiff in the sum of $26.25. The plaintiff has appealed.

The appellant in bringing the case into this court has failed to comply with Rule 40, in that he has failed to make a clear and concise statement of the facts distinct from the argument; and he has failed to comply with Rule 36, in that the index does not show the pages of the record where any exception relied on may be found; and neither in the assignments nor brief of appellant are we referred to the pages of the record where the exceptions to rulings of the court were taken. This has made it necessary for us to search through the entire record (which fortunately is not a large one) to find the various rulings and exceptions complained of. A motion for a new trial was made and denied by the circuit judge. One ground of the motion was that the verdict was against the evidence, and was inadequate in amount. It is only by inference that that we can ascertain whether any verdict or judgment was ever rendered in the case, the appellant and appellee not agreeing as to the amount of the judgment; the former claiming that it was $25 and the latter that it was $26.25.

Complaint is made because the circuit judge did not charge more fully the rule as to the preponderance of evidence; but, as the plaintiff has obtained a verdict in the case, we cannot see how he was injured in that respect.

There are some rulings in the admission of testimony that it will be necessary for us to examine. The testimony took a very wide range upon the trial. The plaintiff was cross-examined very fully by defendant’s counsel; and, among other things, as to whether he had ever reported that the defendant had cheated Mrs. Tiffany. The defendant was not content with this, but proceeded to show by other witnesses that the plaintiff had testified falsely upon this point.

The sixth assignment of error complains that the court was in error in permitting the witness Edward Spencer to testify that he heard the plaintiff say that the defendant and his father were cheating the “old lady,” meaning Mrs. Tiffany. Plaintiff’s counsel objected to this line of testimony as immaterial and collateral, and that defendant was bound by the statement of the plaintiff on cross-examination. He further said:

“ The only issue in this action is whether an assault and battery was committed, and the question of damages, and this question that counsel is calling for is entirely immaterial and it was drawn out on cross-examination, and I object to it on that ground now, and also that it is collateral, and whatever answer the plaintiff made to that question he is bound by. That is my objection.
The Court: I will overrule the objection. I think it may have some bearing, or be admitted for what bearing it might have, on the state of mind of the parties, or upon the state of mind of Mr. Mills at the time this affair took place.
Plaintiffs Counsel: It was the defendant.
The Court: That is the reason it might be material.
Plaintiff’s Counsel: If it is only for that purpose and not for the purpose of impeachment, that this is offered for impeaching testimony.
“The Court: If material for that purpose, it would be proper impeaching testimony. Of course, he cannot be impeached on immaterial or collateral matter, but it seems to me that this is on the condition of his mind. It is the claim of the defense that Mr. Mills was about to assault this witness, and- that he struck in self-defense. Now, the feeling that Mr. Mills had toward him at that time would be material.
“Plaintiff’s Counsel: I agree with the court, and I think for that purpose it would be material.
“The Court: I think I will take it.
“Plaintiff’s Counsel: But on the other I desire to take an exception as to the impeachment.”

Answer of the witness:

“ This was about a month before November 9th. Mills said that Warner took more than his share of the potatoes when dividing with Mrs. Tiffany.”

It seems to us that this testimony was immaterial and irrelevant in any view of the case. It was also an attempt to impeach the plaintiff upon a collateral matter; but it may be urged that plaintiff’s counsel waived the force of his objection, and we should not feel justified in reversing the case on that point.

Seventh assignment of error: Upon his cross-examination the plaintiff was interrogated as to whether he had had some words with the defendant while setting up a loom or weaving machine for Mrs. Tiffany. In the direct examination of the defendant he was asked this question:

During the time you were working for Mrs. Tiffany that summer, did you assist them in putting up the loom ? * * *
“Plaintiff’s Counsel: I would like to have this testimony taken under the objection so I will not be interrupting. I think it is immaterial.
The Court: Give Mr. Danhof an exception.”

The witness was then permitted to state the circumstances attending the erection of the loom. After testifying to this at some length, plaintiff’s counsel moved to strike out all of the testimony about the loom as immaterial. This was refused and plaintiff’s counsel excepted. We think that this testimony was wholly immaterial and irrelevant, and that the court erred in not granting plaintiff’s motion.

The eighth assignment of error is based upon the following : In the direct examination of the defendant the following occurred:

“Q. With reference to any conversation in which Mrs. Tiffany had said Mr. Mills stated that you were stealing hay—
“Plaintiff’s Counsel: At what time, and where?
“Defendant’s Counsel: Just a little before this trouble.
“Mr. Danhof: On the morning of November 9th.
“Q. Mrs. Tiffany ever said anything as to what Mills had said ?
“A. Yes; she told me that Mr. Mills told her that I was taking it.
“Plaintiff’s Counsel: If it took place before November 9th, whatever Mrs. Tiffany told before that I object to as immaterial.
“Defendant’s Counsel: May it please the court, we maintain that we have the right to show all the surrounding circumstances.
“The Court: I think I understand your purpose and I think it may be taken. (Exception by plaintiff’s counsel.)
“The Court: Taken for what bearing it may have on the question of wanton, or reckless, or malicious conduct on the part of the plaintiff, and that solely. (Exception by plaintiff’s counsel.)”

We think that the admission of this testimony was erroneous. It was too remote as provocation, and could not be considered in mitigation of damages. Millard v. Truax, 84 Mich. 517 (47 N. W. 1100, 22 Am. St. Rep. 705). It was also immaterial, irrelevant, and hearsay, and we cannot say that it was not prejudicial.

The tenth assignment of error is based upon the following : A witness by the name of Burt Beach was sworn on behalf of the defense, and he testified to having met and conversed with the plaintiff some time after the alleged assault and battery. On his direct examination he was asked the following question:

“Q. X will ask you whether at that time and place the plaintiff told you that Charlie Warner hadn’t got to the end of his rope yet, that he (plaintiff) had $300 or $400 to spend to put him in the cooler, and that Charlie Warner was a pauper, and that his father did not own anything, and that he was going to have him taken on what he called a ‘ capus ’ ?
“Plaintiff’s Counsel: I object to that as immaterial, and it does not tend to prove any ill feeling before this assault took place November 9th, but was subsequent thereto. The mere fact that he commenced the suit, or that he intended to commence the suit, has no bearing whatever on the question of ill will or animus between Mr. Mills and Charlie Warner, the defendant.
The Court: I think we will take it. Answer it.”

Exception by plaintiff. The answer was: “Yes, sir.”

The eleventh assignment of error is founded upon a like question permitted to be asked of the defendant’s witness Martin Warner, to which there was also an exception. We think this testimony was wholly immaterial to the issue. It is true that the plaintiff had been cross-examined upon these subjects. That was proper, as tending to show his condition of mind as a witness; but we think it was wholly improper to permit independent evidence of other witnesses as to statements made by the plaintiff, after the assault, that he intended to bring suit against the defendant. In the very nature of things, the relation of the parties would at that time be more or less hostile.

The meritorious question in this case is whether .the plaintiff had a cause of action against the defendant. The jury seems to have answered that in the affirmative. The probable effect of this testimony was to impress the jury with the fact that the plaintiff had malice towards the defendant when the assault was committed, and that it might be considered in mitigation of damages. We think that it was inadmissible, and was prejudicial. Johnson v. McKee, 27 Mich. 471; Breitenbach v. Trowbridge, 64 Mich. 393 (31 N. W. 402, 8 Am. St. Rep. 829); Millard v. Truax, supra. That this class of testimony in all probability influenced the jury in returning a small verdict is quite apparent.

We have examined the record, and find no other reversible error. For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Ostrander, C. J., and Steere, Moore, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    NATIONAL GROCER CO. v. PLOTLER.
    1. Fraudulent Conveyances —Sales in Bulk — Statutes —Estoppel — Debtor and Creditor.
    An estoppel to treat as void under the bulk sales act a transfer of a stock of merchandise by a debtor of plaintiff is not made out under evidence that the purchaser over the telephone informed plaintiff that he was about to purchase the debtor’s stock and would deposit with a third party sufficient funds to protect the creditors, who could go to the depositary and obtain their money, the evidence showing conclusively that the funds were deposited in a bank and the debtor allowed to check them out and that plaintiff received nothing.

    2. Same — Liability in Garnishment.
    Defendant was liable to plaintiff for the amount of his debt which the value of the stock transferred was sufficient to pay; plaintiff was not limited to such proportion of his debt as the value of the merchandise bore to the entire indebtedness.

      Error to Wexford; Lamb, J.
    Submitted October 9, 1911.
    ( Docket No. 198.)
    Decided December 8, 1911.
    Garnishment by the National Grocer Company against Robert Plotler upon an account and indebtedness of George Hanna, principal defendant. A judgment for plaintiff on a verdict directed by the court is reviewed by the garnishee defendant on writ of error.
    Affirmed.

      Gaffney & Miltner, for appellant.

      W. H. Yearnd, for appellee.

       As to statutory requirements on sale of stock of goods in bulk, see note in 2 L. R. A. (N. S.) 331.

   Brooke, J.

The garnishee defendant reviews by writ of error a judgment against him upon a directed verdict.

Plaintiff, having secured a judgment against the principal defendant in the sum of $217.23, sued out a writ of garnishment against Plotler, as garnishee of Hanna. Plotler disclosed no liability. Upon the trial of the issue, it appeared that Plotler had purchased from Hanna a stock of general merchandise, in bulb, without complying with the provisions of the statute (Act No. 223, Pub. Acts 1905) relative to sales in bulk. It further appeared that the judgment against the principal defendant represented a merchandise debt due from him to plaintiff at the time the sale was made.

The inventory of the stock amounted to $1,251.30. Of this amount, Plotler retained $500, to apply upon a debt due from Hanna to himself, and the balance ($751.30) he paid over by agreement with Hanna to one Dixon, the cashier of the Thompsonville Bank, in which bank said sum was to be deposited to Hanna’s credit. The money was so deposited, and was paid out upon the checks of Hanna to his creditors, other than the plaintiff. It was urged by the garnishee defendant upon the trial, and he now insists, that the plaintiff should not be permitted to recover, because it had given its assent to the sale and the payment of the money by Plotler to Dixon. Plotler testified:

“ I called up Mr. Brooks, of the National Grocer Company, and I said: ‘ Mr. Brooks, I am buying Mr. Hanna out, and I want to know how much he owes you.’ He said, ‘Hold the phone, and I will see.’ I did so, and he came back and said it was $199 and some cents. I said, ‘ Would it be all right if I paid over the money to Mr. Dixon, to protect the creditors, and you can go and get your money ? ’ and he said, ‘All right,’ and so I did, under his instructions.”

Assuming that this conversation is correctly detailed by defendant, what is its effect? Brooks simply consented that defendant should pay the purchase price to Dixon to protect the creditors, upon the understanding that he could go to Dixon and get his money. Plotter did not pay the money to Dixon to protect the creditors, but paid it to be placed to the credit of Hanna, who checked it out at will, so that Brooks was unable to secure payment of his claim, as Plotter had assured him he could do. Plaintiff has done nothing, even giving the most favorable construction possible to defendant’s testimony, which would prevent it from taking advantage of the statute. Marquette County Sav. Bank v. Koivisto, 162 Mich. 560 (127 N. W. 680).

It is next urged that plaintiff in any event was not entitled to recover from Plotter the full amount of its judgment against Hanna, but only such proportion thereof as the value of the goods bore to the total amount of Hanna’s indebtedness, the amount of which appeared to be $1,437.88, while the value of the goods sold was but $1,351.30. The statute makes the sale absolutely void as against creditors, unless its conditions are complied with. In effect, therefore, at the time of the service of the writ upon him, the garnishee defendant had in his possession the entire stock of goods belonging to the principal defendant. We have held garnishment proceedings proper under this statute. Spurr v. Travis, 145 Mich. 721 (108 N. W. 1090, 116 Am. St. Bep. 330); Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409); Marquette County Sav. Bank v. Koivisto, supra. In Musselman Co. v. Kidd, Dater & Price Co., supra, this point was considered and determined against the contention of defendant.

The judgment is affirmed.

Ostrander, C. J., and Steers, Moore, and Stone, JJ., concurred.


author: Moore, J.

text:
    GODFREY LUMBER CO. v. KLINE.
    1. Ras Judicata — Judgments — Mechanics’ Liens — Parties — Equity.
    A decree on appeal determining that a necessary party was omitted from a suit to enforce the lien of a materialman is not conclusive of the contention that the notice of lien was insufficient, where defendant demurred to an amended bill filed after the appeal. 1
    3. Mechanics’ Liens — Construction—Statutes.
    Mechanics’ liens are in derogation of the common law, depending for their existence wholly upon statutes; and upon the question whether a lien attaches at all, a strict construction is adopted, but after the lien has once attached a liberal construction should be given to the statute for the fulfillment of its purposes.
    3. Mechanics’ Liens — Time—Notice—Words and Phrases.
    A notice of mechanics’ lien served on the owner of the premises stating that the last of the materials was furnished “on or about the 3d of March,” is uncertain, indefinite and insufficient to create the lien under 3 Comp. Laws, § 10714.
    Appeal from Kalamazoo; Knappen, J.
    Submitted November 10, 1911.
    (Docket No. 91.)
    Decided December 8, 1911.

      Bill by the Godfrey Lumber Company against Belle E. Kline and George W. McConn to enforce a mechanics’ lien. From an order sustaining a demurrer to complainant’s bill and dismissing the same, complainant appeals.
    Affirmed.

      Frost & Farrell, for appellant.

      D. O. French, for appellees.
   Moore, J.

This case has been in this court before, and is reported in 160 Mich. 565 (125 N. W. 682). A reading of the opinion will be necessary to an understanding of the questions nowpresented. After the case was here, an amended bill of complaint was filed, and Mr. McConn was made defendant. The defendant Kline demurred to the bill of complaint for something like 20 reasons. The demurrer was sustained. The complainant did not indicate a desire to further amend the bill of complaint, and a decree was entered dismissing it.

As to the reasons stated by defendant Kline in her demurrer, counsel say:

“We do not consider it necessary to discuss this question further, as in our opinion, it has already been disposed of by the dicision of this court upon the former hearing. All of the objections made now were raised by the pleadings and urged in both courts upon the former hearing, and the decision rendered by this court is res adjudicata on all questions raised by such pleadings” — citing many cases.

We think the contention is fully met by the following language in the opinion handed down:

“The necessary parties were not before the court. Other questions need not be discussed.
“ The decree of the circuit court is reversed, with costs of both courts in favor of defendant, and the cause will be remanded to the circuit court, with permission to amend the bill of complaint by making the principal contractor a party defendant. Casserly v. Wayne Circuit Judge, 124 Mich. 157 (82 N. W. 841, 83 Am. St. Rep. 320); Prather Engineering Co. v. Railway, supra [152 Mich. 585 (116 N. W. 376)]. If the parties so elect, the case may proceed to a hearing on the record already made.”

See, also, Le Roy v. Collins, 165 Mich. 380 (130 N. W. 635).

The notice of the claim of lien was served upon Mrs. Kline April 30, 1908. It is stated therein:

“ The furnishing of such materials was begun on or about the 26th day of October, A. D. 1905, and the last of such materials were furnished on or about the 3d day of March, A. D. 1906.”

The amended bill of complaint states:

“Your orator further shows that in pursuance of said agreement materials were furnished and delivered upon said premises. That the first of such materials were furnished on or about the 26th day of October, A. D. 1905, and the last of such materials were furnished on or about the 3d day of March, A. D. 1906.
“Your orator further shows that upon the 30th day of April, A. D. 1906, it caused a notice of the fact that it was furnishing materials to George W. McGonn for building, improving, altering, erecting, and ornamenting the house being erected upon the property herein described, to be served upon the said Belle E. Kline and her husband, Lawrence A. Kline.”

The solicitor for Mrs. Kline insists that there is a failure in the notice of lien to comply with section 10714, 3 Comp. Laws, as to the time of furnishing the material and as to the date when the furnishing of material was begun and the date when the last of such materials was furnished. In reply to this claim, the solicitors for complainant say (we quote from the brief):

“The courts at one time were inclined to hold that attachments for mechanic liens were in derogation of the common law, and their provisions should therefore be construed strictly against those who sought to avail themselves of their benefits; but the better doctrine now is that these statutes are highly remedial in their nature and should receive a liberal construction. The theory and ob- * ject of the lien law is to afford an opportunity for collecting for lumber, labor, or materials furnished in good faith in the construction of a building, and, while the proceedings are statutory, the courts generally do not place such a construction upon the law as to defeat an honest claim, if the parties have in good faith endeavored to follow the statute and where no third party’s rights intervene ” — citing cases.

We do not find any warrant for this view of the law in the opinions of this court. In Smalley v. Terra-Cotta Co., 113 Mich. 141 (71 N. W. 466), it was said:

“ It may be difficult to harmonize all of the language in these decisions. It seems to me, however, that the rule is correctly stated in 2 Jones, Liens, § 1554, where it is said:
‘“The rule of construction applicable to questions arising under these liens may be strict at one stage of the proceedings, and liberal at another. Mechanics’ liens are in derogation of the common, law, depending for their existence wholly upon statutes, and therefore, upon the question whether a lien attaches at all, a strict construction is proper.’
“ Section 1556 of the same author reads:
“ ‘But, after the lien has once attached, a liberal construction should be put upon the statute, for the purpose of fulfilling its objects. The statute is highly remedial in its nature, and should receive a practical and reasonable construction to effect its objects.’”

We do not understand this court has departed from the above view of the law.

This brings us back to the question of whether the statute requiring a statement of the time of furnishing the material, and of the dates when the furnishing of the materials commenced and ended, has been met. It will be remembered that notice of the claim of lien was served upon Mrs. Kline April 30th, 58 days after the 3d of March. The complainant was dealing with the contractor, McConn. The statement in the claim of lien is that “the last of such materials were furnished on or about the 3d day of March, A. D. 1906.”

In volume 6, Words and Phrases, p. 4966, the following occurs:

“The phrase ‘on or about’ a certain day is not a sufficiently definite description as to time and place of the occurrence of an accident to constitute a compliance with Laws 1889, chap. 440, providing that no action shall be maintained against a village unless the claim shall have been presented and notice of the time and place at which the injuries were received filed with the village clerk. Lee v. Village of Greenwich, 48 App. Div. 391 (63 N. Y. Supp. 160, 161).
“ ‘ On or about,’ as used in a finding that a building on which a mechanic’s lien was claimed was completed on or about a certain date, is a relative term, and, the filing of the notice of a mechanic’s lien being required to be made within a certain number of days after the completion of the building, it is uncertain and indefinite. ‘ On or about ’ is sufficiently definite in certain connections; but in cases of this kind, where the right of a person depends upon his doing a particular thing within a definite number of days after a certain event, it is necessary for him to allege and prove that the acts were performed within the time required by law. Cohn v. Wright, 89 Cal. 86 (26 Pac. 643).”

In the lien case of Cohn v. Wright, 89 Cal. 86 (26 Pac. 643), occurs the following language:

“ ‘On or about the 22d day of November, 1889,’ is too indefinite and uncertain. ‘ On or about ’ is a relative term. It is sufficiently definite in certain connections, but in cases of this kind, where the right of a person depends upon his doing a particular thing within a definite number of days after a certain event, it is necessary for him to allege and prove that the acts were performed within the time required by law. An allegation that the plaintiff had filed his notice of lien ‘ on or about ’ a certain day would not be good, and a finding on these words is equally insufficient.”

In Armstrong v. Chisolm, 100 App. Div. 440 (91 N. Y. Supp. 693), it is said:

“A notice of lien must be sufficient in and of itself without reference to extrinsic proof to supplement deficiencies in it.”

In Wolf Co. v. Pennsylvania Railroad, 29 Pa. Super. Ct. 439, a statute quite like the Michigan statute was involved. The claim of lien stated: “The last materials therefor were delivered on or about July 30, 1903.” The court said, in dismissing the lien, among other things:

“It is important in determining the rights of the parties under mechanics’ liens that the date of the last item of a claim shall be definitely fixed. The statute expressly requires that the claimant shall, under the sanctity of an oath, inform the owner of that date. A notice which without satisfactory explanation leaves that date uncertain, fails to meet the statutory requirement.”
“This lien, like all others of the same character, should be fairly enforced when the party brings himself within the provisions of the statute, but it should not be extended to cases falling within the reason, but not provided for by the language of the statute. ■
“The provision in section 4, supra, that the statement .required by the section shall set forth ‘the times when such material was furnished or labor performed,’ is material and imperative.”

In 1 Jones on Liens, § 105, it reads:

“ The courts cannot extend the statute to meet cases for which the statute itself does not provide, though these cases may be of equal merit with those provided for.”

"We have examined the cases cited by counsel, of Smalley v. Terra-Cotta Co., 113 Mich. 141 (71 N. W. 466), an Union Trust Co. v. Casserly, 127 Mich. 183 (86 N. W. 545), and think they do not aid claim of counsel for complainant. As the claim of lien in the case at bar was not filed until the 30th day of April — 58 days after March 3d — the exact date when the last of the material was furnished becomes a material fact. “ On or about March 3d” is too indefinite and uncertain. “It is a relative term.” It is impossible for anyone to ascertain from the claim of lien itself, whether complainant has a legal and valid claim of lien, and one which should be .settled in order to avoid costs and troubles of litigation. Neither could this material fact be determined from the bill of complaint. The claim of lien and bill of complaint .are both sworn to, and yet it is impossible to tell from either of them that the claim of lien was filed within 60 days after the furnishing of the last of the material, and the defendant, not knowing anything about it, could only decide after hearing the proofs upon the trial.

The defendant ought not to be put in this position, as the facts were within the knowledge of the complainant, and it ought not to have been difficult for him to have complied with the requirements of the statute. Not having done so, he cannot invoke the aid of the statute. A compliance was essential before the lien attached. See Lindsay v. Huth, 74 Mich. 712 (42 N. W. 358); Gibbs v. Hanchette, 90 Mich. 661 (51 N. W. 691); Smalley v. Terra-Cotta Co., 113 Mich. 141 (71 N. W. 466); Hall v. Erkfitz, 125 Mich. 335 (84 N. W. 310); Lacy v. Power & Heat Co., 157 Mich. 544 (122 N. W. 112, 133 Am. St. Rep. 360); Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578 (132 N. W. 117).

The decree is affirmed, with costs.

Ostrander, C. J., and McAlvay, Brooke, and Stone, JJ., concurred.


text:
    OPSOMERE v. OPSOMERE.
    1. Appeal and Error — Evidence—Stenographer’s Notes.
    While minutes of the official stenographer taken at a previous trial should be proven before they are admitted in evidence, the objection comes too late on appeal by a party that asked to have the stenographer’s minutes produced, and read from them on the trial without raising the objection that they were not proven.
    3. Replevin — Demand—Instructions to Jury.
    In replevin it is not error to charge as a matter of law that a demand was made for the property by plaintiff when the evidence showing the demand is undisputed.
    Error to Bay; Collins, J.
    Submitted November 10,, 1911.
    (Docket No. 81.)
    Decided December 8, 1911.
    Replevin by Leander Opsomere against Alex Opsomere. Judgment for plaintiff. Defendant brings error..
    Affirmed.
    W.'A. Collins, for appellant.

      Gilbert W. Hand, for appellee.
   Moore, J.

This case has been here before. A reference to the opinion found in 162 Mich. 65 (127 N. W. 15), will make a long statement of facts unnecessary.

Upon the second trial the plaintiff recovered a judgment. The defendant has brought the case herb by writ of error. Many of the assignments of error relate to questions which are fully covered by the opinion, and reference will not further be made to them.

Two assignments of error, however, require attention:

(1) Were the notes of the stenographer admissible in evidence ?

(3) Did the court err in his charge to the jury upon the question of demand ?

Appellant insists the notes of the stenographer of testimony taken upon the former trial were not competent because not proven. If this objection had been made in the court below, it would have been well taken. See Edwards v. Heuer, 46 Mich. 95 ( 8 N. W. 717).

The record shows that the attorney for the plaintiff had caused a copy of the notes of the stenographer to be made, and upon the trial, at the requést of the attorney for the defendant, produced them, and the attorney for the defendant then introduced such portions of them as he desired in evidence and read from them freely. Later counsel for the plaintiff desired to read from them, to show to what defendant testified on the former trial. Objection was made to this, not because of a failure to authenticate the notes, or because the evidence of the court reporter was the better evidence, but the objection was:

“Mr. Collins: Do I understand he can put the testimony of Alex Opsomere, the defendant in this case, my client, taken on the former trial, when he is here prepared to be sworn ?
The Court: Yes. * * *
“Mr. Collins: I do not understand that it is possible to use prior testimony on a former trial when you can get the witness and he is here, and there is no evidence here that he will not be sworn—
“ The Court: I can only say in respect to that that I have done it myself many a time, and it is purely within the rule.”

Some colloquy then occurred as to what portion of the notes was offered, and the court suggested that the attorney for plaintiff should indicate those portions he desired to offer to counsel for defendant, so that he could examine them during the noon hour. No further objection was made, and counsel for plaintiff read portions of the testimony given by the defendant on the former trial. Counsel for the defendant then read.other portions of the notes. Enough has appeared to show that the notes of the stenographer came into the case in the first instance at the request of the attorney for the defendant, and were used by him, and that at no time did he claim that they were not properly authenticated, or that the court reporter should be called. Under these circumstances, this court ought not to say, and will not say, that what was done was error. Dunbar v. McGill, 69 Mich. 297 (37 N. W. 285).

It is said the court erred in stating to the jury, as a matter of law, that a demand for the property was made by the plaintiff, but he should have left this question to them as a question of fact. The trouble with this contention is that there- was no dispute about the demand being made. It was shown that upon the former trial the defendant testified that a demand had been made upon him. There was other testimony to the same effect, and it was nowhere denied.

The other questions do not call for discussion.

Judgment is affirmed.

Ostrander, O. J., and Steers, Brooke, and Stone, JJ., concurred.


text:
    PEOPLE v. TONNELIER.
    1. Jury — -Commissioners— Secrecy.
    It is not required by Act No. 58, Pub. Acts 1905, providing for jury commissioners for Berrien county, that the list selected be kept secret.
    2. Same — Challenge to Array — Panel.
    The participation of two persons other than the lawfully appointed jury commissioners in the selection of the panel is sufficient ground for a challenge to the array in a criminal prosecution.

      Erorr to Berrien; Coolidge, J.
    Submitted November 10,1911.
    (Docket No. 199.)
    Decided December 8,1911.
    Victor Tonnelier was convicted of keeping and using a slot machine.
    Reversed.

      Humphrey S. Gray, for appellant.

      Franz C. Kuhn, Attorney General, and William H. Andrews, Prosecuting Attorney, for the people.
   Brooke, J.

Respondent stands convicted of keeping a

gaming room and keeping games of chance by use of a slot machine, and has removed his case to this court by writ of error.

After respondent’s plea of “not guilty” had been entered, the names of 12 jurors were drawn from a list returned September 5,1911, by the following persons acting as jury commissioners for Berrien county: William H. Seitz, Philip Hiler, Williain H. Watson, Albert Haid, and Benjamin Earl. Before the jury was sworn, a challenge to the array was interposed by respondent. This challenge having been overruled by the court, the jury was sworn, testimony was introduced by the people, and respondent was found guilty. The facts set out in the challenge are admitted by the prosecuting attorney, the sufficiency of which, therefore, is the only question raised upon the record.

The challenge sets out the following facts:

“First. That the list of jurors returned for the September, 1911, term of court were so returned September 5, A. D. 1911, and such list was signed by William H. Seitz, William H. Watson, Philip Hiler, Albert Haid, and Benjamin E. Earl.
“Second. That William H. Seitz was a jury commissioner of this county, having qualified as such on August 7, A. D. 1911. That the appointment of said William H. Seitz was a reappointment to succeed himself. That William H. Watson having been appointed December 28, A. D. 1910, he qualified as such commissioner February 2, A. D. 1911, and Philip Hiler having been appointed December 28, A. D. 1910, qualified as such commissioner April 8, A. D. 1911. That their commissions as issued and signed by the governor of Michigan as jury commissioners for Berrien county, Mich., continued for one year from and after December 28, A. D. 1910, and until December 28, A. D. 1911.
“Third. August 7, A. D. 1911, the governor of Michigan appointed William H. Seitz, Albert Haid, and Benjamin F. Earl jury commissioners for the county of Berrien for the term of one year, and such appointees qualified as such commissioners as follows: William H. Seitz,
August 7, A. D. 1911. Albert Haid, August 19, A. D. 1911. Benjamin F. Earl, August 21, A. D. 1911.
“Fourth. Commissioners William H. Seitz, William H. Watson, and Philip Hiler met in the court-house in the city of St. Joseph, Mich., to select jury lists on August 14, A. D. 1911, and August 15, A. D. 1911, and then and there proceed with the examination of the tax rolls for the petit and grand jurors; also, on August 16, A. D. 1911, and then again continued such examination of the tax rolls; also, they met on August 17, A. D. 1911, but on that date, owing to the governor’s having appointed other commissioners, the decision of the prosecuting attorney of Berrien county and of the attorney general relative to such appointment, and as to who were the proper commissioners, was awaited.
“Fifth. On August 21, A. D. 1911, the board of five commissioners, William H. Seitz, William H. Watson, Philip Hiler, Albert Haid, and Benjamin F. Earl met in the court-house but transacted no business; also, on August 25, A. D. 1911, the board of said five commissioners again met and adjourned to September 4, A. D. 1911. _
_ “Sixth. On September 4, A. D. 1911, the said board of five commissioners metin the court-house and completed the selection of petit and grand jurors, and reported the list selected by such commissioners; all signing the report or selection.
Seventh. The five members were advised to agree on same list of jurors by the prosecuting attorney of the county of Berrien, and in pursuance of such advice did so meet as one board and agree on the names selected, so that names of jurors were selected by a commission of five members instead of a commission of three members, thereby coercing and compelling the regular and logically appointed commissioners to select and agree upon names approved by the other two members.
“ Eighth. That the law presumes and intends there shall be secrecy and that no more than three commissioners regularly qualified shall be present at or have knowledge of the work or discussion of the commission and the selection of the names of jurors, while in this instance five men were present and took part in this selection. Respondent attaches hereto a certified copy of the proceedings had and taken by the said jury commissioners, relative to this list of jurors, and attaches hereto affidavit from William H. Seitz as to the advice given by the prosecuting attorney and the action of the jury commission relative thereto. And this the said respondent is ready to verify, and prays judgment, and that the said panel may be quashed.”

The law providing a board of jury commissioners for Berrien county will be found in Act No. 58, Pub. Acts 1905. Section 1 thereof provides that the governor shall appoint a board of jury commissioners, consisting of three persons. It defines their qualifications and term of office. Sections 2-6 set out the duties of the board and the qualifications of the jurors to be selected. Section 7 is as follows:

“Any commissioner who shall cause any person to be selected or who shall propose the name of any person for selection, who shall have made any request to be selected as a juror, or in whose behalf any such request shall have been made, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished,” etc.

Section 8 provides:

“ On the completion of the record of the said annual meeting of the said commissioners, the county clerk shall write the names chosen for petit jurors on separate pieces of paper of the same size and appearance, as near as may be, and he shall place the slips of paper containing the names selected from each ward and township of the county, in a separate package, indorse the name of the township or ward thereon and retain the same therein securely sealed until the same are drawn in the manner hereinafter provided.”

The question as to which three of the five men, who signed the jury list in question, are in fact duly qualified to act, is not presented. It is, however, conceded by the respondent, as we understand the record, that among the five who so signed are three who were at that time possessed of the necessary legal qualifications.

Nor can it be denied that those three, whoever they may be, acted honestly and in good faith in their efforts to comply with the law and to compile a legal jury list. If they failed, their failure is due to no fault of their own, but rather to an unfortunate legal complication which made it impossible for any three of the five to determine with certainty that they only were duly qualified to act. Facing this situation they applied to the prosecuting attorney, and, acting upon his advice, all five signed the list after participating in its composition.

It is contended by respondent that his challenge should be sustained for two reasons:

(1) Because five instead of three made the selection of names.

(3) Because “the statute contemplates ‘secrecy’; that is, that none but the three commissioners and the clerk shall know what names have been selected for jury lists.”

With reference to the last point, it is clear that the statute does not in terms require secrecy, and we know of no reason, based upon sound public policy, which would demand that the list, after it was made up, should be kept secret. In many counties of the State such lists are filed with the county clerk and become subject to inspection the same as other public records.

The first ground urged raises a more serious question. The statute provides for three commissioners only. That five men, each claiming to be possessed of the necessary legal qualifications, equally participated in the work of the board, is not disputed. Two of the five acted without lawful authority, and in permitting their interference the three who were rightfully entitled to the office and charged with the performance of its duties acted without the scope of their authority and in. direct disregard of section 7 of the statute. Here, therefore, is a plain and unequivocal failure to comply with the statutory requirements.

Does such failure vitiate the work of the board ?

In People v. Labadie, 66 Mich. 702 (33 N. W. 806), a challenge to the array was held good upon the ground that the sheriff drew the names from the box instead of the clerk as required by the statute.

In Fornia v. Wayne Circuit Judge, 140 Mich. 631 (104 N. W. 147), a challenge was sustained because the jury was drawn by a member of the board of jury commissioners instead of by the clerk.

In Niles v. Schoolcraft Circuit Judge, 102 Mich. 328 ( 60 N. W. 771), the court sustained the circuit judge in holding that a challenge to the array upon the ground that the board used the assessment rolls of 1892 instead of 1893 in selecting the names from which jurors were to be drawn, could not be sustained, saying:

“ A majority of these were the names of persons admittedly eligible, and that is sufficient. If others were not, and happened to be drawn, the result was that a sufficient number of qualified jurors did not attend upon the court, and the law points out the proceduré in cases where from any cause this happens.”

In Gott v. Brigham, 45 Mich. 424 (8 N. W. 41), the court, being equally divided, held that a challenge had been properly overruled where the grounds interposed were:

(1) That the judge was not present when the names of the jurors were deposited in the jury box and those of former jurors removed.
(2) That the judge did not determine the number to be drawn for the term, but that 24 were drawn, and he was not present at the drawing.
(3) That they were drawn by the sheriff, and the minute was kept by the clerk ana not by the judge, sheriff, or other attending officer.
(4) That the affidavit filed with the list of 300 jurors did not show in detail the proceedings taken to select the list, but only set out that said list was selected in accordance with the statute as affiant verily believed.

The only opinion in this case was written by Mr. Justice Graves and is a strong argument in favor of sustaining this challenge. He says:

“ The fundamental idea is to secure a legal tribunal, and the change made in the way of evolving it out of the constituents existing in society has not foreclosed the right of parties to insist upon its being constituted in substantial conformity with the laws as established. They may not see fit to complain even in the case of gross errors, and, if they fail to object seasonably and regularly, they must be deemed to have waived the defects. But if they object in proper time and in due form, and show that a substantial deviation from the law has taken place; that positive provisions enacted to secure and guard the right of trial by jury and maintain the purity of that mode of trial, have been violated or disregarded, there is no warrant in our jurisprudence for treating the deviations as harmless irregularities.
“A party so objecting and so substantiating his objection stands on valuable legal rights and is entitled to have the array quashed. The law has prescribed its own methods for the constitution of the tribunal, and has carefully defined what means shall be provided to negative the existence of any error in relation thereto prejudicial to the parties; and it is not fair reasoning to say that such methods may be set aside and that a party reasonably and regularly objecting may be silenced by an answer that it appears from extrinsic sources that he was not injured. The effect of such a doctrine would be to license courts to suspend the laws, if in their opinion no one would be injured thereby as a matter of fact.”

This language seems to us peculiarly pertinent when applied to the facts in the case at bar. See, also, Hewitt v. Saginaw Circuit Judge, 71 Mich. 287 (39 N. W. 56).

Respondent may not have been injured by the failure of the commissioners to comply with the plain statutory mandates; but we are not warranted in indulging in such a presumption.

The conviction is reversed, and a new trial ordered.

Ostrander, C. J., and Steere, Moore, and Stone, JJ., concurred.


text:
    BROWN v. SPIEGEL.
    1. Attachment — Evidence—Damages—Good Faith.
    Upon an issue framed by stipulation of tbe parties in an attachment proceeding as to the amount of damages caused by the wrongful levy of the writ to be deducted from the plaintiff’s claim in the action, evidence offered to show plaintiff’s good or bad faith in issuing the writ was immaterial.
    2. Same — Damages—Measure—-Market Price.
    Defendant was entitled to recover as his damages the difference between the highest market value of the goods while they were retained under the levy and their value at the time the writ was dissolved.
    Error to Saginaw; Gage, J.
    Submitted November 10, 1911.
    (Docket No. 173.)
    Decided December 8, 1911.
    Assumpsit by Harry R. Brown against Frederick F. Spiegel on two promissory notes. Plaintiff caused an attachment to be levied on certain property of defendant: On motion to dissolve, the property was released, and by stipulation of the respective attorneys defendant was authorized to have deducted from plaintiff’s claim all damages and costs to which he might be entitled because of the wrongful levy. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Charles W. Cheeney, for appellant.

      Crane & Crane, for appellee.
   Ostrander, C. J.

It was agreed by counsel that upon the two notes sued upon there was due to plaintiff $310.50. The only issue of fact arose over the claim of defendant that he had been damaged by the wrongful suing out of a writ of attachment and the levying of the writ upon certain real and personal'estate. This defense was made pursuant to a stipulation of counsel, entered into upon the dissolution of the attachment. The right of defendant to make this counterclaim, under this stipulation, was affirmed by this court after a former trial of this cause. 156 Mich. 138 (120 N. W. 679). The trial court ruled that defendant could not recover any damages on account of the levying of the attachment upon his real estate. The question, and the only question, submitted to the jury, was whether he had suffered any damages because of the levying of the attachment upon the personal property, which consisted of 1,150 bushels of potatoes in storage. Defendant offered testimony tending to show that damage resulted from the levy, and all the testimony so offered was admitted without objection. Plaintiff offered some testimony tending to prove that the potatoes were not worth as much as defendant said that they were worth. The jury returned a verdict of no cause of action under an instruction to the effect that if they found the damages equaled or exceeded the amount agreed to be due upon the notes they should return such a verdict.

The attachment having been dissolved before a hearing of the motion to dissolve it, the right to make the counterclaim for any damages resulting from the levying of the writ having been agreed to by counsel, the only question was, as has been stated, how much such damages amounted to. It was wholly immaterial whether the attachment was or was not properly sued out, or whether the plaintiff in attachment had, or supposed he had, any reason or cause for suing out the writ, and all the testimony offered to show that there was, and that there was not, such just cause (and there is considerable of it in the record), was wholly immaterial. But so far as such testimony was offered on the part of the defendant, no objection was made to it, and consequently there was no reversible error committed in admitting it. Nor was. there any reversible error committed in excluding testimony on the cross-examination of the defendant tending to show reasonable or probable cause for suing out the writ.

With this ruling we dispose of all of the assignments of error except those relating to the charge of the court. As to that, it is said in the main brief for appellant that the judge did not charge the proper measure of damages. The court is not advised what counsel considers a proper measure of damages, and, upon an examination of the charge, it is not able to say that the measure of damages given by the court was wrong. The only other objection to the charge is that it was misleading. The charge itself furnishes no support for this criticism.

The judgment is affirmed.

Steere, Moore, Brooke, and Stone, JJ., concurred.

       The charge of the court as to the measure of damages was as follows: “ He is entitled to recover actual damages to the potatoes levied upon under the attachment, and, as you have heard, he claims 153 bushels total loss, at 65 cents per bushel, and also for the depreciation of the 997 bushels at 30 cents a bushel, according to his evidence. • Of course it devolves upon him to establish the damage — if you are satisfied he is entitled to recover by a preponderance of evidence, as well as the other facts necessary to his recovery, he must establish the amount he is entitled to recover. If you find the facts claimed established by him by a preponderance of the evidence under the instructions I have already given you, then I instruct he is to be awarded such actual damages as you find he has suffered in that regard, as a direct and proximate result of such levy under said attachment.
      “I am also requested to instruct you, and do, that the defendant is only entitled, in case he is entitled to recover, to such damages as is shown by the evidence to have proceeded directly from the levy of such attachment, but not such as may have arisen from the acts of the defendant himself. That is true. If you find that the defendant placed these potatoes in question in storage with the purpose of retaining them for a very much advantageous market, or for a rise in price, and was not prevented by reason of the attachment from disposing of them at a time when he could have disposed of them to the best advantage, then he is not entitled to offset that claim.
      * ** *
      “In no event can you find damages in this case in favor of the defendant for more than $310.50. In other words, you cannot, as in an ordinary action where there is an offset in assumpsit, give judgment for the balance which you find in excess is due to the defendant, or in case of what we call recoupment, but you can only take into consideration the damages up to the amount of the present claim of the plaintiff in this case, $310.50, and you have nothing to do with the balance. And your verdict in that case would be no cause for action, if you should so find. * * * ”