text:
    WALTER v. DETROIT, JACKSON & CHICAGO RAILWAY.
    1. Evidence — Hypothetical Questions — Street Railways — Personal Injuries.
    On cross-examination of defendant’s motorman, in a personal injury action for colliding with plaintiff’s vehicle and horse which turned upon the street car track as an automobile in passing at high speed caused the horse to become unmanageable, it was not objectionable to ask in what distance the motorman could have checked a car going at the rate of speed it was under and with similar conditions of weather, track, etc., prevailing. The question was not hypothetical; no facts and circumstances being assumed.
    2. Same — Knowledge—Opinions.
    The fact which was developed, that witness did not know the weight of the car, did not deprive his opinion of its value, where he was testifying from actual experience.
    3. Witnesses — Statutes—Agent of Defendant.
    To warrant calling a witness as an agent or servant of the defendant under 3 Comp. Laws 1915, § 12554, it was not essential that he should have been directly concerned in the happening or occurrence out of which the alleged injury grew, if he was an employee of the defendant at the date of the accident.

      4. Same — Conclusion—Expert Testimony.
    And where there was evidence that tended to identify the street car which caused plaintiff’s injury and also to establish the fact that another witness called by plaintiff as an expert had operated it, the court did not commit error in permitting him to give his opinion as to the distance in which it might be stopped, whether or not he could testify to its weight.
    5. Street Railways — Trial—Charge.
    Instructions of the court to the jury that if plaintiff was in a position of danger and the motorman of defendant’s street car realized her danger or had good reason to believe that plaintiff could not extricate herself from the position of peril or reach a place of safety, and if he could thereafter, in the exercise of reasonable diligence, have stopped the car under conditions as they then existed, and he did not immediately apply his brake and stop the car and that in so failing he was guilty of negligence and that plaintiff was free from negligence, the verdict should be for plaintiff: held, proper when considered with the remainder of the charge to the effect that he would not be chargeable with negligence solely because he happened to choose a course that turned out to be wrong or not the best, if he exercised a proper judgment; and for a mere error in such determination the employer would not be liable.
    Error to Wayne; Cross, J., presiding.
    Submitted April 5, 1916.
    (Docket No. 17.)
    Decided June 1, 1916.
    Case by Caroline Walter against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody (William G. Fitzpatrick, of counsel), for appellant.

      Dohany & Dohany, for appellee.
   Stone, C. J.

This case grows out of the same ac-' cident that was involved in the case of Martha Walter against the same defendant, ante, 181 (157 N. W. 414). All of, the witnesses, except one, sworn in that case, were sworn in this, and the testimony of the witnesses, common to both cases, is substantially the same on all material points in each. As the reported case contains a full statement of the occurrence, a brief statement here will suffice.

About noon, on June 28, 1913, the plaintiff and her daughter, Martha Walter, were riding west, in a light market wagon drawn by a single horse, on Michigan avenue, through the township of Dearborn, Wayne county. It was a bright, clear day. Michigan avenue was paved with concrete at the place in question. Lying immediately north of the concreted way, and running parallel thereto, and about three feet distant therefrom, was the track of the defendant. Both highway and track were straight for a considerable distance east and west of the scene of the accident. The plaintiff was driving the horse, which was on the north side of the concreted roadway. Approaching from the west at a rapid rate of speed, and likewise on the north side of the concreted way, was an automobile. As it came toward the plaintiff’s rig it was directly in front. It continued to proceed thus, until within a few feet of the rig, when it swung suddenly to the south and passed. The manner of its approach, or its passing, or both, caused the horse to take fright and precipitately turn toward and proceed upon the defendant’s track. At this time one of defendant’s freight cars was approaching from the west at a rate of speed estimated to be from 35 to 40 miles an hour, and, although the plaintiff tried to get the horse back off the track, it was struck and killed by the car, and both women were thrown from the wagon and injured. The plaintiff brought suit, and on the trial recovered a verdict and judgment for $1,000. A motion for a new trial, on the grounds that the verdict was contrary to law and against thé weight of the evidence, was made, and denied. To this denial the defendant filed exceptions, and has brought the case here assigning errors.

As to the negligence of the defendant charged, the two declarations are identical. Upon the questions of the negligence of the defendant, and the proximate cause of the injury, we are of the opinion that the instant case is governed and controlled by the opinion in the case of Martha Walter.

By the assignments of error some questions are raised upon rulings in the admission of evidence. We proceed to consider those.

The plaintiff called the motorman, Denio, for cross-examination under Act No. 307, Pub. Acts 1909 (3 Comp. Laws 1915, § 12554), and the following occurred :

“Q. In what distance could you stop that car on that track at that place under those conditions with that load on, going at the rate of 35 miles an hour towards the east?
“Mr. Fitzpatrick: I object to that as incompetent, as calling for a conclusion, and an opinion. The question in this case is: What distance did he stop the car in? Then the question further may be whether that was a reasonable or proper or improper' stop, but I claim that the witness cannot be asked to give his opinion or a conclusion as to the distance in which he could have stopped that car on that morning.
“The Court: I think he may answer it.
“Mr. Fitzpatrick: Exception.
“Q: Do you desire the question read, Mr. Denio?
“A. Please.
(The question was repeated by reporter.)
“Mr. Fitzpatrick: I add the further objection that it does not yet appear the weight of the car, a question that would obviously be of importance, almost controlling bearing, if the question is to be treated as a hypothetical or expert one.
“Mr. Dohany: The question refers to that identical car, your honor.
“The Court: Does he know the weight of it?
“Q. Did you hear Mr. Hugh Savage testify concerning the weight of that car?
“A. No, sir; I did not.
“Q. You never weighed it yourself?
“A. No, sir.
“Mr. Dohany: I insist upon an answer, your honor.
“Mr. Fitzpatrick: Perhaps I have not made the point that I intend to raise, your honor, sufficiently clear. It is this: That it is never competent in a case of negligence or claimed negligence to put the actor, the man who is really charged with the negligence, upon the witness stand, and by a hypothetical or expert opinion or question draw from him a statement which amounts to an opinion or conclusion, which opinion or conclusion comprehends the vital issue in the case as to whether or not there was or was not negligence in the doing or refraining from doing the things that were done or that were refrained from. That was what I had in mind. That, in this case, ultimately the jury must determine from all the facts and circumstances whether the actual stop that this man made of the car was a negligent or a nonnegligent stop, and to ask him hypothetically, in advance of a showing of all the facts and circumstances, to say within what distance he could stop the car, is an invasion of the province of the jury.
“The Court: It is true that is a question for the jury to find on. As I understand it, witness, you had driven this car for some time?
“A. Yes, sir.
“The Court: Or similar cars?
“A. Yes, sir.
“The Court: I think he may answer the question.
“Mr. Fitzpatrick: I may have an exception?
“The Court: Yes.
(The question was read by reporter.)
“Mr. Fitzpatrick: I also have an exception on the proposition that the question does not include the weight of the car?
“The Court: Yes.
“A. About 400 feet.”

It is urged by appellant that the question was not competent; that it in effect called for an opinion, and yet in form it was not hypothetical, and if treated hypothetically it did not contain within itself some of the material facts in the case — notably the question of the weight of the car. In our opinion the question put to the witness was not a hypothetical question. There were no assumed facts or circumstances. The fact that the witness did not know the weight of the car was unimportant, as he testified that he had operated it many times, and had been .in the employ of the defendant between 16 and 17 years at the time of the occurrence. The question called for his judgment founded on his experience. We do not think that the court erred in its. ruling in that regard.

The third assignment of error is to the effect that the court erred when it permitted, over the objection of the defendant, the plaintiff to call the witness Sullivan under the provisions of said Act No. 307 (3 Comp. Laws 1915, § 12554); it appearing that the witness had nothing to do with the operation of the car in question at the time of the accident, and that he was not in the employ of the defendant at the time of the trial. What occurred at the trial was as follows:

“Mr. Dohany: I will say, your honor, this witness is called under Act No. 307 of the Laws of 1909. He was in the employ of the defendant, at the time the accident occurred.
“Mr. Fitzpatrick: Unless he was an agent or servant in connection with the operation of this car, I want the record to disclose my objection to his being called under the statute.
“The Court: As I understand it, you claim he was an employee of the company at that time?
“Mr. Dohany: Yes, your honor.
“The Court: All right. Exception for defendant.”

Counsel for defendant contends that, to warrant calling a' witness under the statute, such ex-employee must have been an actor in, or directly connected with, the happening of the transaction out of which the suit or proceeding grew.

We do not so understand the language of the statute. It provides that (3 Comp. Laws 1915, § 12554):

“Hereafter, in any suit or proceeding in any court of law or equity in this State, either party, if he shall call as a witness in his behalf the opposite party, employee, or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party,” etc.

We cannot agree with this contention of counsel. It places too narrow a construction upon the language quoted. If called by the opposite party, plaintiff would have had the right to cross-examine the witness upon any material matter. Counsel further contends that such witness could not be examined as an expert witness. We decline to discuss or consider that question, for the reason that his objection did not cover it. In his objection the point was not made that this witness could not be called under the statute to testify as an expert.

We cannot consider an objection not brought to the attention of the trial court, or based on an exception. Baker v. City of Detroit, 166 Mich. 597, 600 (132 N. W. 462).

The fourth assignment of error is to the effect that the court erred in permitting the witness Sullivan to answer the hypothetical question as to the distance in which a car could be stopped, under certain assumed conditions of weight of load, speed, condition of track, and braking equipment, for the reason that it did not appear that the witness had familiarity with the particular car in question because of having operated it, and for the further reason that the question did not include the weight of the car itself, and for the further reason that the distance in which the witness could have stopped the particular car was not controlling, either hypothetically or. actually. Upon this question what occurred at the trial was as follows:

“Q. It appears here, Mr. Sullivan, that on June 28, 1918, one of these freight cars that you have operated, and which Mr. Denio has described as No. 7800, was going eastward on the company’s tracks about 80 rods east of the Bender switch.- This car had passed over the switch and had not made a stop after crossing the River Rouge bridge. It had about 11 or 12 tons of freight on it, 11 tons, I think, 12 tons, and it was in charge of motorman Denio. It was going at the rate of about 35 or 40 miles an hour, somewhere about 35 miles an hour, and it was a bright, clear day; in fact, a warm day. The track was in good condition; the air brakes were in good condition. It became necessary to make a stop, using the air brake in making the stop. Will you state to the jury in what distance you could stop that car, going at that rate of speed, under those conditions?
“Mr. Fitzpatrick: I object to the form of the question as incompetent: First, for the reason that it assumes that this witness has familiarity with, because of having operated, this particular freight car; second, for the reason that it does not include the weight of the car itself, which would be an important factor; and, third, and finally, for the reason as to its materiality or relevancy, because the distance in which this witness could have stopped the car is not controlling, either hypothetically or actually. ■
“The Court: As I understand it, it was that he had operated this particular car?
• “Mr. Dohany: Yes, your honor, the witness has said that he operated all of the freight cars, but he does not identify this one by that No. 7800; that is, they had different numbers before the Detroit United Railway began to control them.
“A. I say, if this car, before they renumbered them, was 7, 8, 9, 10, or 12—
“Mr. Fitzpatrick: He had operated it.
“A. I operated it.
“Mr. Fitzpatrick: You do not undertake to say this car was one of those cars?
“A. I am .not positive, no, but they renumbered those cars, and they are still in the freight service. Whether this 7800 was one or not, I don’t know.
“The Court: There would have to be some showing then?
“Mr. Dohany : Well, I will just ask Mr. Denio what number was this car, Mr. Denio, before it was changed to 7800?
“Mr. Denio: I could not say.
“Mr. Dohany: Well, was it one of the 5, .6, 7, 8?
“A. 7, 8, 9, 10—
“Mr. Dohany: 7, 8, 9, 10, or 12; was it one of those?
“Mr. Denio: It was one of the old cars built by the old company. It was not 12, but it may be one of the others.
“Mr. Dohany: It was one of those with the number changed afterwards?
“Mr. Denio: Yes, sir..
“Mr. Dohany: Well, I guess that covers it, your honor.
“The Court: He may answer then.
“Mr. Fitzpatrick: Give me an exception.
“A. Now, what is the question?
“Q. The question is the distance in which you could stop it?
“A. If it was running, you said—
“Q. Between 35 and 40 miles an hour?
“A. And how much freight on it?
“Q. Twelve tons.
“A. I would say about 400 feet.”

In the light of the testimony of the witness D,enio above quoted, we think there was evidence as to the identity of the car, and that Sullivan had operated it, and that there was no error in permitting the witness to answer the question.

While his testimony may not have been controlling, it was material and proper to go to the jury.

The tenth assignment of error complains of the following part of the charge:

“I charge you that if the plaintiff and her daughter were in a position of peril on or near the tracks' of the defendant, and that the motorman of defendant’s car in question saw and realized that the plaintiff was in such position of danger, and knew, or had good reason to believe, that the plaintiff could not extricate herself from such position of peril or reach a place of safety, and that great injury to the plaintiff would be inflicted unless the car was stopped, and that said motorman, after so observing and realizing the peril of plaintiff, could, by the exercise of due care or reasonable diligence, have stopped his car with the brake mechanism in the condition they were then in, and by so doing could have avoided injuring the plaintiff, and that said motorman did not immediately apply his brakes and stop his car, and in failing to do so was guilty of negligence which caused the injury to the plaintiff 'complained of, and that the plaintiff was free from contributory negligence, then you should find a verdict for the plaintiff.”

It is urged that the case was erroneously made to turn on the point that there was an appreciable period of inaction on the part of the motorman in applying the brakes, and that the jury was instructed that if the “motorman did not immediately apply his brakes and stop his car, and in failing to do so was guilty of negligence, which caused the injury to the plaintiff, * * * then you should find a verdict for the plaintiff.”

In this connection, we think the following language of the charge should appear:

“You are instructed that, when to avoid an impending collision the motorman is obliged to choose instantly one of two appliances or methods provided for stopping the car or averting the collision, he is not guilty of, and his company is not chargeable with, negligence, because the event proves that the one he chose and used may not have been efficacious, or the best to meet the exigency. Whether the one or the other means provided for stopping the car should have been adopted was a matter for the exercise of the motorman’s judgment, and for an error in Ms exercise the defendant could not be held responsible. It is not claimed in this case that the motorman was negligent in deciding to use the brake instead of reversing the current. The claim is that he was negligent in not applying the brakes as soon as he saw the danger to the plaintiff.”

The question whether, at that point, the motorman was guilty of negligence in not immediately applying his brakes was, we think, properly submitted to the jury. Fairly, the charge may be said to mean only that at the time he perceived, or ought to have perceived, the perilous position of plaintiff, the motorman should have immediately applied his brakes. We do not think that the rule here stated conflicts with the doctrine of Rathbone v. Railway, 187 Mich. 586 (154 N. W. 143), and Pearl v. Railway, 188 Mich. 84 (153 N. W. 1062), as contended by counsel.

The other questions urged by appellant are, we think, all controlled and governed by the opinion in the case of Martha Walter, ante, 181 (157 N. W. 414).

Finding no reversible error in the record, the judgment below is affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    MALCOMSON-HOUGHTEN CO. v. GREGORIAN BUILDING CO. WADHAM v. GREGORIAN BUILDING CO.
    Mortgages — Building Contract — Amount Due — Damages—Delay —Extras.
    In a suit by a building contractor to foreclose a mortgage given for the construction of a building, evidence examined, and held, that the owner’s claim for $25 a day as stipulated damages for delay should be disallowed, and .that the amount due the contractor as extras should be $7,711.56, instead of $5,899.82, as allowed by the court below.
    Appeal from Wayne; Van Zile, J.
    Submitted April 19, 1916.
    (Docket No. 94.)
    Decided June 1, 1916.
    Rehearing denied September 27, 1916.
    Bill by Malcomson-IIoughten Company, the assignee of a part interest in a second mortgage given by Gregorian Building Company to George B. Wadham, Jr., to foreclose its interest against Gregorian Building Company, George B. Wadham, Jr., and others. George B. Wadham, Jr., filed a cross-bill to foreclose his remaining interest. From the decree entered both cross-complainant and cross-defendant appeal.
    Modified and affirmed.

      Lucking, H elf man, Lucking & Hanlon, for .cross-complainant George B. Wadham, Jr.

      Chamberlain, Denby, Webster & Kennedy (John B. Corliss and Arthur Webster, of counsel), for cross-defendant Gregorian Building Company.

      Miller, Smith, Canfield, Paddock & Perry, for defendant Detroit Savings. Bank.

      Corliss, Leete & Moody, for defendant Lottie Wolf Kendall.
   Stone, C. J.

This case is before us upon the appeal of George B. Wadham, Jr., cross-complainant, and the appeal of the Gregorian Building Company, cross-defendant. The grounds of their respective appeals will be stated later.

The case was heard at the circuit upon the evidence taken in open court, and the trial judge therefore had the benefit of seeing and hearing the witnesses and parties testify. There was great conflict in the evidence, which took a wide range. The questions involved are largely questions of fact. We have spent much time in examining the testimony and various exhibits offered at the hearing, and we are of opinion that the conclusion reached by the trial judge was correct upon , the main questions involved in the case.

The trial judge filed a written opinion which was made the basis of the decree appealed from. For brevity we compile from that opinion the following statement of facts:

On the 18th day of January, 1911, Thomas Dillon was the owner of a lot on the corner of High and Park streets, in the city of Detroit, and Mrs. Lottie Wolf Kendall owned, adjoining it, 20 feet. Edwin W. Gregory was an architect, and George B. Wadham, Jr., was a contractor, and the two last-named parties had worked together on other jobs where Mr. Gregory had been the architect. By an agreement of January 18, 1911, the first three parties named agreed to acquire title to the property aforesaid, being 60 feet front on High street, and extending south to the alley in the rear of said property; also to erect or have erected an apartment building thereon six stories high to cost from $70,000 to $90,000, more or less. They agreed to pay, or cause to be paid, into a general fund, for the above-mentioned purpose, the following amounts:

Thomas Dillon ................................ $7,500
Edwin W. Gregory ........................... 5,000
Lottie Wolf Kendall .......................... 13,500
Making a total of .......................... $26,000

—and that the share or interest of the respective parties in the property should be the ratio of the amount each paid to the whole amount paid in; that a construction loan or loans should be made or secured for the entire cost of the building to be erected on the best terms to be secured, and that a corporation should be organized under the laws of this State, and shares of stock should be issued at the par value of $10 each; that said building should be what is known as an apartment building, to be rented as deemed best for the interest of the parties to the agreement. Plans were drawn by Gregory, and bids solicited. Finally a preliminary arrangement was entered into with George B. Wadham, Jr., the details of which were not arranged, but an incomplete understanding, which was to be put into a definite contract, was had between Gregory, the architect, who received bids for the work, and Wadham, as contractor.

One of the questions raised in the case is as to the contract entered into by Wadham and the owners on the 12th day of April, 1911. A contract' in writing, signed by Wadham and approved by Gregory, as shown by correspondence, was submitted by Gregory to Mr. Dillon for his signature. At that time Mr. Dillon was in Florida. He did not sign the contract, and it was never signed by any of the owners of the property. Mr. Dillon remained in the South until the latter part of May, 1911. In the meantime, beginning about April 12th, work on the job, consisting of putting in the foundations, had been commenced by Wad-ham. This proposed contract of April 12th is referred to in the record as Exhibit A. We quote from the opinion:

“There is a clause in this submitted contract, Exhibit A, that is somewhat significant, as touching upon a question later discussed. In that paper, or submitted contract, George B. Wadham, Jr., is the party of the second part. It contains this clause:
“ ‘The said party of the second part does hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree that he shall and will, for the consideration hereinafter named, without unnecessary delay, furnish all material and perform all work necessary for the complete job, for the six-story brick apartment building to be erected on lots 55 and 56, located on the southeast corner of High and Park streets, for the said parties of the first part, according to plans, drawings, details, and specifications made or to be made by E. W. Gregory, architect, together with engineer’s working drawings made by Avila Thomas, C. E., linen tracing and original copy of specifications, marked No. 1, are part of this contract, * * * for the sum of $108,477.00.’
“After the return of Dillon negotiations were going on, trying to determine the terms of the contract for erecting the building. Copies of proposed contracts were submitted by the parties, but no agreement was arrived at that was- executed by all the parties until September 28, 1911, when Exhibit E was executed by the ‘Gregorian Building Company,’ E. W. Gregory, president, Thomas Dillon, treasurer, and George B. Wadham, Jr., contractor. [The company having been incorporated about June 15, 1911.] In this contract of September 28, 1911, there was this clause:
“ ‘Whereas, a preliminary agreement has heretofore existed between the parties hereto, in pursuance of which the contractor has progressed work and furnished materials; and whereas, the said owner has this day executed to said contractor a mortgage and note, bearing even date herewith, for the sum of $105,477.00 to secure the payment of the balance of the contract price of said building, said mortgage covering the land above described: Now, therefore, this agreement shall take the place of and stand in the stead and make void any and all other agreements between the parties hereto relating to the said apartments, whether said agreements are oral or written.’
“These stipulations, after the negotiations leading up to the making of the contract, it appears to me, settle conclusively the first question in this case.
“The contract of September 28, 1911, is the contract and the only contract material and binding upon the parties, and which must be followed in determining this case. That Wadham intended from the beginning to be a general contractor * * * is quite clear, when in the contract proposed by him, dated April 12th, he agreed to do all the work and furnish all the materials for the sum of $108,477. ’ From the clause quoted from the contract it was apparent that Wad-ham understood from April 12, 1911, to the making of the contract of September 28, 1911, that he was the general contractor. Upon the execution of the contract of September 28, 1911, the Gregorian Company executed a mortgage and note to Wadham for $105,-477, which was put on record by Wadham; and $3,000 had been paid Wadham under the arrangement with Gregory to do the job for $108,477. This is an additional fact showing Wadham to be a general contractor.
“Wadham soon was in need of funds, and it was arranged that he might negotiate a loan on the property. He had difficulty in finding a satisfactory loan. Finally, through a Mr. Rooney, he was able to raise $60,000 on a mortgage to the Detroit Savings Bank. Upon executing this and a mortgage of $38,477 to Wadham to secure balance that might become due him if he finished the job, the first mortgage of $105,477 was discharged. The $60,000 mortgage was given to procure money, so far as it would go, to pay the subcontractors, and so it was regarded by the architect and the then president of the Gregorian Building Company, Mr. Gregory, and also Mr. Dillon, the treasurer. There was a very good reason for this; as it might save them from liens because of unpaid bills to some considerable extent. These mortgages were executed on December 29, 1911.
“The mortgage of $38,477 given Wadham to_ secure the balance that might be his due after expending the $60,000 obtained on the mortgage to the Detroit Savings Bank in carrying on the building contained this clause:
“ ‘This mortgage is given subject to the terms of a certain contract entered into by and between the parties hereto, dated the 28th day of September, A. D. 1911, for the erection of a building upon tbe lands described herein. This mortgage shall be reduced in amounts by any obligation or liability of second party in connection with said building which shall be paid or agreed to be paid by first party, and it is agreed that said mortgage shall not be negotiated for a greater amount than is due the second party under said contract. This mortgage is given subject to a certain first mortgage for $60,000 to the Detroit Savings Bank of Detroit, Mich., of even date herewith.’
“Wadham’s cross-bill, upon which the case is heard, is a bill to foreclose the mortgage given him on December 29, 1911, above mentioned. In his bill alleging other facts in connection with his claim the claim of the Detroit Savings Bank is not to be disturbed or brought in question in this case. All other claims set out in the original bill of Malcomson-Houghten Company, complainants, have been settled and adjusted by payment, and assignments to the Gregorian Building Company, or otherwise. So that the isfeue here is the claim of George B. Wadham, Jr., against the Gregorian Building Company for the amount due him upon his contract for building the apartment building in question. Wadham seeks to foreclose his mortgage of $88,477. This makes the issue in this' case. The issue is defined by the terms of the contract of September 28, 1911, and the conditions of the mortgage for $38,477.
“By the terms of the contract of September 28, 1911, Wadham was to have the building completed March 10, 1912. Shortly prior to March 10, 1912, the Gregorian Building Company became urgent to have the work progress faster, claiming it was being neglected. On the 10th of March the work was not done. February 8, 1912, the Gregorian Company served a written notice upon Wadham that he had failed to carry out the provisions of his contract, wherein it is expressly stipulated that in case he fails to push the work the owners may take possession of and complete it, and charge the cost thereof to the contractor, Wad-ham. The company, however, did not enforce this right under the contract, and' allowed the matter to run on until April 12, 1912, when it took possession of the building, put its own workmen on the building, and started to complete it. The foreman of the men was a Mr. Smith. The building was not finished until about November 1, 1912. Some of the floors, however, were occupied and rented about the middle of October, and so the company is accepting the time as October 10, 1912, or 210 days after March 10th, the day fixed by the contract for its completion.
“By the contract it is provided that, if ‘the contractor shall not complete his contract within the time specified, he shall pay the owners, as liquidated damages, the sum of $25.00 for each and every day during which said work shall remain unfinished and not completed, and not delivered after the date specified for its completion.’ The building company also claims damages for bad work, especially in putting in, and plastering the partitions on certain of the floors. By way of offsetting any amounts- claimed by the Gregorian Company, Wadham, the contractor, presents certain claims for extra work and for overcharges. The issue to be determined is: What amount is due Contractor Wadham on his contract of September 28, 1911?
“From the original contract price, $108,477, and whatever he is allowed for extra work, must be deducted payments made him by the company, and the subcontractor, for work and materials, for amounts in good faith expended in finishing the building according to the plans and specifications, the amount, if any, for delay in finishing the job, and the amount of damages, if any are allowed, for bad work upon the building. The amount found due is the amount secured by the mortgage of $38,477, and for which the contractor would be entitled to a decree of foreclosure.
“Extra Work Wadham.
“It is difficult to arrive at this from the fact that Wadham kept no books and has no data that is satisfactory. I have taken the claims made by Wadham and the account furnished by Mr. Taft, the accountant. The item of Wadham for hauling away dirt, $1,300, I have disallowed. The specifications direct that the dirt from the cellar shall be leveled up and sloped away on all sides from the walls of the building. It is observable that there was no room for dirt on the premises. Wadham in his first claim for extras did not claim it.
“The item for recording mortgage, $198 (mortgage tax), is disallowed. The item gravel and cement material for floors, $836, is disallowed, and the items $450, $767, $1,411.14, not charged, are disallowed. These items, added, amount to $4,962.14. Deducting from the total, as found by Mr. Taft on page 13 of his report, we have $1,000.64. The item of $547 for extra footings, being allowed by the company, is left. Now, this amount, $1,000.64, added to the contract price, $108,477, makes a total of $109,477.64, which the company was under obligations to Wadham to pay.
From this amount must be deducted, viz.: * * * ............................... $109,477.64
Paid on contract .............. $10,800.00
Amount paid subcontractors---- 67,013.14
Material account, and tbis item includes Mrs. Kendall’s note, '' $3,000 and interest, shown in the report of Mr. Taft....... 19,265.13
Labor account ................ 6,019.93
Unclassified labor and materials 479.33
Making a total of.......... $103,577.82 $103,577.82
$5,899.82
“Thus, the amount of deductions, $103,577.82, deducted from $109,477.64, leaves remaining $5,899.82, balance due Wadham. Nor, can I see my way clear to allow the claim for delay — $25 per day. In the beginning of the enterprise Wadham was kept under uncertain conditions for months, from the fore part of April until September 28th; he had no contract and no definite source for money supplies. Then during the building very many changes were made. All these things would delay and hinder the work.
“The decree will therefore be that there is due George B. Wadham, Jr., under his contract, the sum of $5,899.82. Tdf secure this a decree in the nature of a foreclosure of the second mortgage may be entered.”

The decree, as entered by the court below, allows this last-named sum to Wadham, with interest from the date of the completion of said building on November 1, 1912, at six per cent. The final decree bears date January 30, 1915.

These appeals raise three questions for determination:

(1) Did the trial court deduct too much from the amount due Mr. Wadham'under his mortgage? He claims that it did.
(2) Was the claim of the Gregorian Building Company for alleged defective walls, properly disallowed? The company claims that it should have been allowed.
(3) Was the penalty claimed by the company for alleged delay in the completion of the building properly rejected by the court? The company urges that it should have been allowed.

After the appeal a stipulation was made by the solicitors for the respective parties fixing the rights of Lottie. Wolf Kendall and the Fidelity & Deposit Company of Maryland, assignee, and providing that the same shall not be disturbed by the decree of this court, which stipulation, it was provided, should be made a part of the bill of exceptions and record in the case.

It is not necessary for us to here elaborate upon the reasons which have led us to agree with the trial judge upon the principal questions in the case. Much might be said upon the subject, but we think they are sufficiently covered by the opinion which we have quoted from, except, perhaps, the damages for bad work on the building. The company contends that it is entitled to damages for defective walls. This claim was disallowed by the trial court, as we understand it, largely because the fault was that of the plastering contractor, who did his work under the direction of the architect in charge, who should have rejected the work. We agree with the court below that under the evidence the fault was more in the plastering than in the walls, and that Wadham should not be held for fault in the plastering. We think, however, that Mr. Wadham was wrongfully charged with certain extras, and that he should have the amount due him increased in the following particulars: Various coal bills charged to him, $124.29. The specifications provided that the owner should furnish the coal for drying out the building. In Johnson v. O’Neill, 181 Mich. 326 (148 N. W. 364, 150 N. W. 835), it was held to be the duty of the owner to dry out the building in the absence of express understanding by the contractor to do this. Here, we think, the matter was covered by the specifications. The same may be said of the charge of $237 for temporary radiators for drying out the building. These two items amount to $361.29. We think the same may be said of the water tax of $43.95. We think also the charge of $225 for insurance was improperly made against Mr. Wadham. As we understand it, the specifications expressly provided that the owner should pay this insurance. For extra handrails we think Mr. Wadham should be credited in the sum of $356.' Wooden fails were specified, and there is testimony that warrants us in holding that the ornamental rails which were used cost the above sum in excess of wooden ones. Ornamental passenger inclosures costing $528 have been, we think, • improperly charge,d to Mr. Wadham. They are not called for or specified by the plans, and the elevator contract provided that the owner should furnish these inclosures. We see no reason for charging them to Mr. Wadham. The same is true of the extra marquise, $179, and extra- electric lights amounting td $118.50. These items amount to $1,811.74, and should be added to the $5,899.82 allowed by the court below to Mr. Wadham, making a total of $7,711.56, which should be the amount awarded to Mr. Wadham at the date of the opinion below, to which should be added interest as provided for in the decree.

It is urged by counsel for the company that Wadham did not make claim for some of these items. He did claim that too many extras were charged to him, and his principal complaint was the amount allowed by the court in adopting Mr. Taft’s statement. We do not think that it was necessary for Wadham to formally ask credit for items that should never have been charged to him.

No costs were allowed either party in the court below. The decree of the court below will be modified as1 above indicated, and in all other respects will be affirmed; with costs of this court to the cross-complainant against the defendant Gregorian Building Company to be taxed.

Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred. Bird, J., did not sit.


author: Person, J.

text:
    DUNHAM v. TILMA.
    Constitutional Law — Courts—Judges—Superior Court of Grand Rapids — Compensation.
    An attempt by tbe common council of Grand Rapids to increase tbe salary of tbe judge of tbe superior court of Grand Rapids after bis election is unconstitutional, under Article 16, § 3, of tbe State Constitution; and, altbougb said court bas been made one of great power and dignity by tbe legislature, it is a municipal court and not a circuit court, and therefore does not come witbin tbe exception contained in said section exempting circuit judges from its provisions.
    Mandamus by Major L. Dunham, judge of the superior court of Grand Rapids, against George P. Til-ma, comptroller of the city of Grand Rapids, to require said respondent to receive and audit relator’s claim for salary.
    Submitted April 11, 1916.
    (Calendar No. 27,275.)
    Writ denied June 1, 1916.

      Sheridan F. Master (Jacob Kleinhans, of counsel), for relator.

      Raymond M. Ferguson, for respondent.
   Person, J.

Relator is the duly elected, qualified, and acting judge of the superior court of Grand Rapids, and receives from the State the same salary that a circuit judge receives. By section 58 of chapter 2, Act No. 314, Pub. Acts 1915, commonly known as the judicature act, it is provided (3 Comp. Laws 1915, § 12141) :

“Each circuit judge and each of the judges of the recorder’s and of the superior court shall receive an annual salary of thirty-five hundred dollars, payable out of any moneys in the State treasury belonging to the general fund, not otherwise appropriated. The amount herein provided shall be compensation in full for all services performed by each of said judges in this State, unless the board of supervisors shall have, or at any regular session hereafter shall vote to pay the circuit judge regularly holding court in such county or unless the common council shall vote or shall have voted to pay the judges of the recorder’s or superior court, an amount in addition .to the salary herein designated.”

This act went into force on January 1, 1916, and shortly thereafter the common council of the city of Grand Rapids unanimously voted to pay relator, as judge of the superior court, the sum of $1,000 per year in addition to the salary received from the State. This was after the election of relator, and during his term of office. Under the provisions of sections 11, 12, and 13, chap. 5, of the charter of the city, it is made the duty of the comptroller to receive and audit claims against the city and to draw and countersign orders for the payment of such claims The comptroller did audit and allow the increased salary for the month of January, 1916, but refused to audit and allow it for the ensuing month of February because he had been advised that such increase, during relator’s term of office, was unlawful and in violation of section 3, art. 16, of the State Constitution, which reads as follows :

“Neither the legislature nor any municipal authority shall grant or authorize extra compensation to any public officer, agent, employee or contractor after the service has been rendered for the contract entered into. Salaries of public officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment.”

The relator thereupon makes this application for a writ" of mandamus, requiring the comptroller to audit and allow the increased salary, as/ authorized by the common council, for the month of February and ensuing months, and to draw and countersign the proper orders therefor. The only question involved in the application and submitted to this court is whether relator is prohibited from receiving the additional salary by the terms of the constitutional provision above cited. It is the contention in his behalf that the superior court is a court of record with an original jurisdiction, within the territorial limits of the city, coordinate with that of circuit judges, and that the judge of such a court comes within the classification, “circuit judge,” and is therefor exempted from the limitation of the constitutional provision. In passing upon this question it must be conceded that the judge of the superior court is a State officer, and that the court, by the act of the legislature creating it, has been , made one of great power and dignity. But it is not a circuit court, and the judge thereof is not a circuit judge. Section 1, art. 6, of the Constitution of 1850, which was in force when the superior court was established, provided that:

“The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities.”

If we understand the argument made in behalf of relator, it is that the Constitution has vested all judicial power in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace, and therefore that any municipal court, established by the legislature, must come within one of these classifications. Following this reasoning, and relying upon the fact that the superior court has been given a jurisdiction co-ordinate, in many respects, with the circuit courts, counsel for relator say:

“We respectfully insist that the creation of the superior court of Grand Rapids was not the creation of a new court, in the sense of creating a new class of jurisdiction, but merely a division and continuation of an already established court — -the circuit court for the county of Kent — and a carving out therefrom, and a division of the jurisdiction thereof, on a territorial basis.”

But this is not a correct assumption. The creation of the superior court was not a division of the territorial limits of the Kent circuit court, and the establishment of a new circuit court in the city of Grand Rapids. If that were the case, the superior court would necessarily, and without any grant of the legislature, possess all of the powers guaranteed by the Constitution to circuit courts, inasmuch as those powers are beyond the reach of the legislature. Section 10, art. 7, of the present Constitution provides:

“Circuit courts shall have original jurisdiction in all matters civil and criminal not excepted in this Constitution and not prohibited by law, and appellate jurisdiction from all inferior courts and tribunals and a supervisory control of the same. They shall also have power to issue writs of habeas corpus, mandamus, injunctions, quo warranto and certiorari and to hear and determine the same; and to issue such other writs as may be necessary to carry into effect their orders, judgments and decrees and give them general control over inferior courts and tribunals within their respective jurisdictions, and in all such other cases and matters as the Supreme Court shall by rule prescribe.”

This leaves to the legislature the right only to determine what causes may be instituted in the circuit courts. It permits to the legislature no control over the general powers of those courts. Brown v. Circuit Judge, 75 Mich. 274 (42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438); Nichols v. Judge of Superior Court, 130 Mich. 187 (89 N. W. 691). The corresponding section of the old Constitution differed in substance but slightly from the present one. This is not the case with municipal courts. They are not created by the Constitution, but only authorized and permitted. They derive all of their powers from the legislature. Nichols v. Judge of Superior Court, supra. And the legislature may give them large or limited powers. In either case they are still municipal courts, and belong to that classification. They are not courts of “general jurisdiction,” in the sense in which that term is applied to circuit courts. Their nature is defined, and the source of their power is stated, in Covell v. Treasurer of Kent County, 36 Mich. 332, where this court said:

“The court also think that under the Constitution it was competent to establish the superior court. • The Constitution, it is true, declares that ‘the judicial power is vested in one Supreme Court, in 'circuit courts, in probate courts and in justices of the peace/ But it also in the same section-declares that ‘municipal courts of civil and criminal jurisdiction may be established by the legislature in cities.’ Article 6, § 1. This is a plain reservation to the legislature of the power to carve out of the judicial power vested in the other courts named such authority as it would be proper to confer upon city courts, and to create such courts for its exercise. Where that is done, the legislature must determine the extent of the authority to be given the municipal courts, subject to the restriction that it must not exceed that which can properly pertain to a municipal court.”

While this is not the only distinction that might be pointed out between circuit courts and municipal courts, it is fundamental and sufficient. The superior court of Grand Rapids was professedly organized as a municipal court. The term “circuit judges” in the section of the Constitution first referred to can no more be held to include judges of municipal courts than can the same term in other sections of the Constitution. It is, for instance, provided by section 11, art. 7, that:

“The judges of the circuit courts may fill any vacancy in the offices of county clerk or prosecuting attorney within their respective jurisdictions.”

But it would hardly be claimed that this power is possessed by judges of municipal courts. The same section provides that:

“The clerk of each county organized for judicial purposes shall be clerk of the circuit court for such county.”

The superior court of Grand Rapids has its own clerk, who is an elective officer. Had it been supposed that municipal judges were included in the term “circuit judges,” it would not have been necessary to mention them specifically in that section of the judicature act relied upon as authority for granting the additional compensation in this instance. That section of the act is not unconstitutional, but must be read in connection with the Constitution. When so read, it must be held that the salary of the judge of the superior court may be increased, but only by some action taken prior to his election or appointment. He does not come within the exemption allowed to circuit judges.

The writ must be denied.

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


author: Ostrander, J.

text:
      In re SMITH. MOORE v. SMITH.
    1. Appeal and Error — Mandamus — Interlocutory Orders — Review. <

    An order setting aside another whereby the court granted a new trial is not subject to review on error; the appropriate remedy is mandamus.
    2. Wills — Revocation—Change op Situation.
    A conveyance by a testator of all his property after executing his will revokes it.
    3. Same — Delivery—Chose in Action.
    „ As a general rule choses in action may be transferred without a manual delivery.
    4. Same — Trusts.
    In order to render a voluntary settlement valid, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him; to accomplish this purpose he may actually transfer the property to the persons for whom he intends to provide, or he may transfer it to a trustee or declare that lie holds it in trust for purposes stated.
    5. Same — Deixvery—Executor—Revocation.
    It is not sufficient to create a voluntary trust that the donor write and sign a declaration. By delivering such trust instrument to the son of testatrix, who was a beneficiary, some time after executing a will, the question of her intention to complete a present disposition of the property thereby effecting a revocation became one of fact.
    Error to Kalamazoo; Weimer, J.
    Submitted April 17, 1916.
    (Docket No. 43.)
    Decided June 1, 1916.
    Rehearing denied December 22, 1916.
    Edwin Moore and others presented for probate the last will of Huldah M. Armstrong, deceased. From an order admitting the same to' probate, Laura Smith appealed to the circuit court. Judgment for contestant. Proponents bring error.
    Reversed.

      Alfred S. Frost, for appellants.

      Charles L. Dibble, for appellee.
   Ostrander, J.

Upon' appeal from an order admitting to probate the last will of Huldah M. Armstrong, deceased, both parties asked for a directed verdict, which was refused, and the court submitted to the jury two special, questions, which were:

Was the instrument purporting to' be the last will and testament of Huldah M. Armstrong procured by undue influence?
Did Huldah M. Armstrong, after the execution of the will involved in this case, execute and deliver a valid declaration of trust, covering all the property, real and personal, which she then had?

The first question the jury answered in the negative, and the other affirmatively, and returned a general verdict for contestant. A motion to set aside the verdict was made and was brought on for hearing before Hon. Frank E. Knappen, then judge of the circuit court for the county of Kalamazoo. It was not, however, submitted for decision before Judge Knappen died. Judge Stewart, who succeeded Judge Knappen, made an order, setting aside the verdict and granting a new trial. Thereafter the cause was, for a year or more, regularly on the calendar for trial, but was not reached. Judge Weimer succeeded Judge Stewart, and in January, 1915, made an order setting aside Judge Stewart’s order and a judgment was entered for contestant. This judgment proponents seek to have set aside.

There was introduced upon the trial a written instrument, with proof of its execution and its delivery without directions to Albert Armstrong, a son of testatrix. The trust created by the instrument was never accepted by the nominated trustee. It is to be inferred that he declined to act unless all heirs of the testatrix would sign an approval of the trtist instrument, which some of them did not do. The instrument was not received or held by him; he did nothing in execution of the trust, and never had possession of or exercised control over the property described in the instrument, which was all of the property of the testatrix. On the contrary, the testatrix herself possessed and controlled the property until she died. There is testimony tending to prove that testatrix unwillingly executed the trust agreement; that she was told, or it was stated in her presence, that its execution would not interfere with the disposition she had made of her property by will, and that the reason for executing the instrument was to pacify a son who was making, or threatening to make, it uncomfortable for his mother and brothers and sisters. There is also testimony tending to prove that more than one declaration of trust was prepared; that there were conferences of interested parties, or their representatives, concerning the terms of such a declaration; that the one in evidence here was supposed to be satisfactory to the settlor and her children and grandchild; and that the purpose of some at least of those beneficially interested was to place the property beyond the control of, and to prevent further changes of disposition by, the settlor. Some of the testimony challenges the intelligent making of the trust declaration by the settlor, but her competency is not challenged, in argument, in this court. The trust instrument follows:

“This indenture, made this tenth day of August, in the year of our Lord, one thousand; nine hundred eleven, between Huldah M. Armstrong, of Pavilion township, in Kalamazoo county. State of Michigan, party of the first part, and William B. Milham, of Portage township, in said county and State, party of the second part: Witnesseth, that whereas, first party has heretofore made a partial distribution among her children, and a granddaughter, the child and sole heir of her deceased son, Charles Moore, at the same time turning over to her son, Albert J. Armstrong, with whom she had made her home for many years, all of her household furniture; and whereas, the said Albert J. Armstrong purchased from said first party, her farm premises situated in said Pavilion township, in the purchase of which it was agreed that he had been advanced his entire share of the property and estate which first party might leave at the time of her death, and, whereas, the said first party desires to provide by this declaration of trust for her future support and maintenance, and the distribution of any estate remaining at her death:
“Now, therefore, in consideration of the premises, and the sum of one dollar, to her in hand paid by said second party, the receipt whereof is hereby confessed and acknowledged, the said first party hereby grants, bargains and sells unto the said party of the second part, and to his successors and assigns, all of the following personal property, to wit: Seven hundred eighty-seven and 10/100 dollars, on deposit to the credit of first party in the Kalamazoo City Savings Bank, and the following securities which are in safety deposit box at the said bank, to wit: Promissory note for three hundred eighty dollars, bearing date April 22, 1911, made by said Albert J. Armstrong to first party, drawing interest at six per cent.; a certain promissory note for thirteen hundred dollars, bearing date April 22,1911, made by said Albert J. Armstrong to first party, drawing six per cent, interest; promissory note for forty-four and 65/100 dollars, bearing date March 29, 1908, made by Clarence Staffen to William Sullivan, drawing interest at the rate of six per cent, per annum; and a certain promissory note, secured by real estate mortgage, for three hundred dollars, bearing date March 29, 1908, made by George Tassell, and drawing interest at the rate of seven per cent, per annum, also including all interest in wheat belonging to first party.
“To have and to hold, the same unto the said second party his successors and assigns, upon the trusts nevertheless, and to and for the uses, interests and purposes hereinafter limited and declared; that is to say, upon the trust to take immediate possession and control of all said personal property and funds, and to receive and collect all interest, and as well to make collection, from time to time of said notes, and to sue on the same, if necessary, with full power to invest and reinvest, in his discretion, the funds of said trust, and to apply and pay out said trust fund as follows: To pay in due season all lawful debts, incurred in the board, care, clothing, medical attendance and any and all other lawful expenses incurred by first party, it being expressly understood that at the date hereof I am owing none of my children anything whatever on account of board, clothing or otherwise, and neither do I owe anything outside on any account whatever. The intention of this instrument is not to limit said expenditures to the income from said trust funds merely, but if the income is not sufficient to comfortably support and maintain said first party, said second party shall in his discretion, use of the principal thereof, so much as shall be necessary to comfortably support and maintain said first party so long as she shall live and upon her death to pay all expenses incident to her last illness, death and burial, and if there shall remain in his hands, after the payment of all the foregoing expenses, any of said trust funds, to distribute and pay over said balance of trust funds, after first deducting therefrom a reasonable sum to compensate the said second party for services by him rendered as trustee hereunder, unto the following named persons, to wit: Edwin J. Moore, Ernest W. Moore, Helen Tolsma, Genevieve Haas (children of the first party), and Laura Smith (sole heir of Charles Moore, a deceased son of first party), the undivided one-fifth to each, share and share alike, and to their respective heirs and assigns, forever.
“In witness whereof, the said party of the first part has hereunto set her hand and seal, the day and year first above written.
“Htjldah M. Armstrong. [Seal]”

The execution of the instrument is not formally witnessed, and not at all except by the appended or added indorsements of some of the heirs approving the declaration and urging the nominated trustee to accept the trust. Contestant states her position as- follows:

“The will of which proponents seek probate was revoked by implication and operation of law ‘from subsequent changes in the condition or circumstances of the testator.’ Such change in the condition of the testator was brought about by the execution of the declaration of trust conveying all her property.”

Upon this point, the court instructed the jury as follows:

“I charge you, as a matter of law, that if you find that Mrs. Armstrong did in fact execute and deliver such a declaration of trust, it would revoke the will in this case if you find that will to be a valid will. If she did it intentionally and intelligently, and was mentally competent to plan and form and sign such an instrument, it would revoke the will in this case, if you find that will to be a valid will. There is evidence in this case that Huldah M. Armstrong, after she had signed the declaration of trust — that she handed it to Albert Armstrong, who was one of the beneficiaries named in the declaration, and that she did not, in so doing, give him any instructions or attach any conditions as to what he was to do with the paper. This would make a valid, sufficient, and unconditional delivery. If you believe that Mrs. Armstrong signed the declaration of trust, there is a presumption that she signed it willingly and with knowledge of what it contained, but this presumption may be rebutted by evidence that it was not her free act, or intelligent act, bearing in mind at the same time that the contestant has the burden of proof to show that it was done freely, willingly, and intelligently. That act of itself revoked the will by implication if you find that it was done intelligently and was her free act and wish, and that by that act she intended to revoke her former will. If under the rule just stated she did execute the declaration of trust, that act, together with the delivery which took place at the same time, revoked the will if there were a will. What third persons may have told her of what they may have thought as to the legal effect of the execution of the declaration of trust is entirely immaterial on this point. The act itself revoked -the will by implication. :!: * * The only questions for you to determine in regard to this declaration of trust are whether Mrs. Armstrong did in fact sign such declaration of trust voluntarily and with full knowledge of what it _ contained, and with the intention that it should go into effect at once; if she did, then it went into effect, and thereby the will was revoked by implication.”

The jury was further advised;

"The law on that branch of the case is this: That where one after making a will disposing of all of their property mentioned in the will, by a conveyance, for illustration intends to make a new or different disposition of the property, it would be a revocation of the former will though valid.”

In the brief for appellants, argument is addressed: First, to the question of the right of the court to set aside the order granting a new trial. This question is not properly before us, the order complained about being interlocutory and reviewable, if at all, in mandamus proceedings. But the court had jurisdiction to make the order (Manufacturers’ Mutual Fire Ins. Co. v. Circuit Judge, 79 Mich. 241 [44 N. W. 604]), and we cannot, except upon some review of the very questions raised by the assignments of error, say that judicial discretion was abused. The jury having disposed of the only objection made to the validity of the will, the question presented is whether revocation of the will is properly established.

A conveyance by a testator of all of his property after making his will revokes the will. In re Sprague’s Estate, 125 Mich. 357 (84 N. W. 293). In that case the trust instrument was in terms not unlike the one in the case at bar. There was, however, real estate, as well as personal property, disposed of, and the trust was accepted and the trustee proceeded to execute it. It was said by this court:

“The testatrix expressly conveyed to the trustee the absolute title in fee to all her real estate, and also the absolute title to all her personalty, merely retaining a life interest in the homestead. The intent to revoke her will and replace it by the trust deed could not be more clearly shown.”

The case before us presents questions not directly involved in the one referred to. In the Sprague Case, the trust instrument, a deed, was executed with the formality required in the execution of a will. The instrument was delivered, and there was an acceptance of the trust by the trustee. The testatrix in her lifetime made a complete transfer of all of her property. It is urged here by contestant that if the trust instrument was delivered by the settlor, nothing more was required to be done to effect an assignment of the choses in action and money described therein. It is undoubtedly now the general rule that choses in action may be transferred by written assignment, without manual delivery of them. And the courts in some cases have gone far to effectuate a transfer of personal property when the donor has done all that can be done to transfer it. Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178). And to this end various trusts have been, held to be complete and executed. Bostwick v. Mahaffy, 48 Mich. 342 (12 N. W. 192) ; O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511). In the last-mentioned case this court quotes with approval from Milroy v. Lord, 4 De Gex, F. & J. 264, as follows:

*1 take the law of this court to be well settled that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual ; and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and, if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol.”

As, to some extent, illustrating the general rulé, see, also, Peninsular Savings Bank v. Wineman, 123 Mich. 257 (81 N. W. 1091) ; Clay v. Layton, 134 Mich. 317 (96 N. W. 458); Hamilton v. Hall’s Estate, 111 Mich. 291 (69 N. W. 484). '

In the case at bar the written declaration of the settlor is explicit enough, and if the instrument had been delivered to, and the trust accepted by, the nominated trustee, continued manual possession of the’ fund by the settlor would not be sufficient to defeat the trust. But in such a case something besides a mere declaration, written or oral, is required to create a trust estate — to divest the owner of title to her property and vest the title in another, in trust. The theory of a trust, such as contestant relies upon, is the present passing of title from the owner to another. It cannot be sufficient to create a voluntary trust that one merely write and sign a declaration of trust. Something more is required. Here the settlor delivered the declaration to her son, who was interested, apparently, though not directly, as a beneficiary in the trust declared, without any directions. It does not appear that she afterwards interested herself in the matter, although she must have known, if her act was an intelligent one, that the trustee she had named did not possess himself of the property, or attempt to execute the trust. In my opinion, in view of all of the circumstances disclosed, it is a question of intention, of fact, not whether she intended to revoke her will by the writing, but whether she intended, in delivering the instrument to her son, to make it effective as a present disposition of all of her property. If she did, then, in legal effect, she revoked her will.

Unfortunately for this little estate and the persons entitled to it, the court did not submit this question of fact, for which reason the judgment must be reversed, and a new trial granted, with costs to appellant.

Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred. Bird, J., did not sit.