text:
    BOARD OF WATER COMMISSIONERS OF THE CITY OF DETROIT v. LORMAN.
    Constitutional Law —Eminent Domain — Municipal Corporations — Necessity for Public Improvement — Due Process of Law.
    A statute which, read as a whole, fails to provide for a determination by a jury of the question of necessity for public improvements for which private property is to be taken, is unconstitutional, nor is it sufficient that the act provides for a verdict as to the necessity for taking the property only. Constitution of 1850, Art. xviii, § 2.
    Certiorari to Wayne; Murphy, J.
    Submitted October 13, 1909.
    (Docket No. 70.)
    Decided November 5, 1909.

      Condemnation proceedings by the board of water commissioners of the city of Detroit against Jganette Lorman. An order quashing the petition is reviewed by petitioner on writ of certiorari.
    Affirmed.

      Bichard J. Lawson (P. J. M. Hally, of counsel), for petitioner.

      Angelí, Boynton, McMillan & Bodman, for respondent.
    This is certiorari to review the action of the circuit court for the county of Wayne in quashing and setting aside certain proceedings launched by the petitioner for. the purpose of condemning lands of the respondent for public use. The act under which petitioner proceeded is entitled “An act to amend the laws relative to supplying the city of Detroit with pure and wholesome water,” approved February 14, 1853 (Act No. 90, Laws 1853), and the acts amendatory thereof (Act No. 359, Laws 1873). Sections 18 and 19, as amended by the law of 1873, so far as are relevant, are as follows:
    “ Section 18. The board shall have the power to.take in fee, or to enter upon and use private property or land, within or without the limits of the city of Detroit, for the purposes specified in this act. In case all the persons interested in said property or lands, and the commissioners, shall not be able to agree upon the compensation to be paid for such taking, * * * the commissioners shall tender or cause to be tendered to said persons, severally, such sums of money as the board shall deem a just compensation ■therefor. * * * But if any of said persons shall not accept said money, * * * the commissioners, by themselves or by attorney, shall present * * * a petition. * * * The petition shall also demand a jury to determine the necessity of taking said property, or of entering upon and using said land therein described, and the compensation to be paid to the several persons therefor. * # *
    “ Section 19. If no sufficient cause be shown against granting such demand, the court shall immediately make an order to summon twelve freeholders of said county to ascertain and determine the necessity of taking such property by the said commissioners, or of entering upon and using said land for the purposes aforesaid, and. to appraise and determine the compensation to be allowed therefor. * * * The jury, being so impaneled as above provided, shall then be sworn to discharge their duties faithfully, impartially, and according to the best of their ability. * * * Immediately after such view is had, or, if there be none, then after the jury is sworn, if no adjournment for good cause be granted, they shall proceed at the bar of said court, and, in its presence and under its direction as to matters of law, to hear and try all questions of fact as to the necessity of the taking of said property by the board, or of the entry upon by the commissioners, and using said land for the purposes aforesaid, and to determine according to their best judgment the just compensation to be paid therefor to the several persons interested. The commissioners shall have the right to open and close the case, and the court shall charge the jury as to such matters of law as shall be deemed necessary. The jury shall then retire for deliberation upon their verdict to be rendered, and shall remain together until they agree as to the question of necessity of taking or entering upon and using said property or land, and if such necessity be found, then as to the amount of compensation to be paid to the several persons interested therein. * * * ”
    The petition filed in the circuit court averred:
    “ (1) That it was, and is, deemed necessary and expedient by said board to acquire the fee to land owned by Jeanette Lorman, who resides in the township of West Bloomfield, Oakland county, and State of Michigan, for the use and purposes of said board, as defined and declared by the law under which said board was created, and under which said board is performing and discharging its functions. * * * Wherefore your petitioners, said board of water commissioners of the city of Detroit, hereby demand a jury to determine the necessity for taking said property or land, and to fix and determine the compensation to be paid to the said Jeanette Lorman, the owner in fee of said land or property.”
    It is the claim of the petitioner that the authority to exercise the right of eminent domain is conferred by the sections of the act quoted.

      Respondent claims that the act is unconstitutional for two reasons:
    (1) Because the act does not require the jury to pass upon the public necessity for the proposed improvement, but requires it only to determine the necessity for taking the property in question, and fix the compensation for the same.
    (2) Because the oath prescribed for the jury is insufficient.
   Brooke, J.

(after stating the facts). In the case of Powers’ Appeal, 29 Mich. 504, this court had under consideration the charter provision of the city of Grand Rapids relative to condemnation proceedings, which provided that the jury be summoned “ to ascertain the necessity of using the property to be taken for such improvement,” and that they be sworn “to discharge the duties imposed on them faithfully, impartially, and according to their best abilities.” The majority opinion (which determined the case upon other points) held that the language quoted, supra, was open to the objection that the jury are not to pass upon the necessity of the improvement itself, but only upon the necessity for taking the property (the necessity for the improvement having been theretofore determined by the common council). The court said:

“It was held in People, ex rel. Bingham, v. Village of Brighton, 20 Mich. 57, that the jury is not called upon merely to determine whether a particular piece of land is necessary to an improvement already designated by some one else, for that would be an idle ceremony, and the fact could be determined by measurement, and involve no important discretion. The object of the constitutional provision is to prevent the taking of private property for any purpose which is not shown to the satisfaction of a jury to be demanded by public convenience, or, to speak more accurately, by necessity.”

Again, in Paul v. City of Detroit, 82 Mich. 108, the court said:

“ The proceedings are in brief as follows: The common council, having resolved that they deem the opening of an alley a ‘necessary public improvement,’ direct the city attorney to apply to the recorder’s court for a proper jury * * * ‘to determine the necessity for using said property, and the just compensation to be made therefor.’ * ¡ts *

“A similar provision as to form of the notices and other proceedings was discussed in Powers’ Appeal, and its ambiguity pointed out. This notice is the only written instruction which the jury receive to guide them in their action, and, when they are informed that the council have ‘determined to make such improvement’ and ‘to take therefor, such property as may be necessary,’ the inference is almost irresistible that they are only to inquire whether the land described is necessary for the alley, and not whether the alley is necessary. This is the very evil intended to be avoided by the Constitution as explained in People, ex rel. Bingham, v. Village of Brighton, 20 Mich. 57.”

In City of Owosso v. Richfield, 80 Mich. 328 (45 N. W. 129), in considering a charter provision similar in language to the act here involved, the court held the same to be repugnant to the Constitution (article 18, § 2), and therefore void. See, also, Berrien Springs Water Power Co. v. Berrien Circuit Judge, 133 Mich. 48 (94 N. W. 379, 103 Am. St. Rep. 438).

It may, then, we think, be fairly said that it is the settled law of the State that, where a statute conferring the right of eminent domain fails to impose upon the jury the duty of determining the necessity for the proposed improvement as well as the necessity for the taking of the property in question, it is unconstitutional and void.

It is claimed by petitioner that the rule laid down in the three cases, supra, has been modified, and cites to that effect City of Grand Rapids v. Railroad Co., 58 Mich. 641 (26 N. W. 159). The opinion in that case was written by Mr. Justice Campbell, and was concurred in by all his associates. It lays down no different rule from that announced in the earlier cases, but holds that, taking the whole act (there under consideration) together, it evidently means “such a finding as the Constitution warrants.” In other words, the court found in that case that under that statute the jury must pass as well upon the necessity for the improvement as for the taking of the property therefor. To the same effect is City of Detroit v. Beecher, 75 Mich. 454 (42 N. W. 986, 4 L. R. A. 813), and Fort Street Union Depot Co. v. Morton, 83 Mich. 265 (47 N. W. 228).

The question at issue in the case at bar is, then: Can we gather from the whole act here under consideration that the jury to be impaneled thereunder must pass upon the necessity for the improvement as well as upon the necessity for taking the land ? The act provides:

“ Section 18. The board shall have the power to take in fee, or to enter upon and use private property or land.”

If unable to agree with the owners, the commissioners shall present to the Wayne circuit court “a petition in the name of the board, setting forth a description of the several parcels of property which they seek to acquire,” etc. The petition shall also demand a jury to determine the necessity of taking said property, or of entering upon and using said land therein described, and the compensation to be paid to the several persons therefor,” etc. Section 19 provides that the jury may be summoned “to ascertain and determine the necessity of taking said property by the said commissioners,” etc., and prescribes the form of the oath to be administered. The petition filed in the circuit court under the foregoing provisions states:

“That it was and is deemed necessary and expedient by said board to acquire the fee to land owned by Jeanette Lorman * * * for the use and purposes of said board, as defined and declared by the law under which said board was created, and under which said board is performing and discharging its functions. * * *

“Wherefore your petitioners, said board of water commissioners of the city of Detroit, hereby demand a jury to determine the necessity for taking said property or land, and to fix and determine the compensation to be paid to the said Jeanette Lorman, the owner in fee of said land or property.”

We think it is obvious that nowhere in the act is it provided, either in terms or by necessary implication, that the jury is to pass upon the necessity for the contemplated improvement. Indeed, a fair reading of its terms impels us to the conclusion that the legislature intended to clothe the board with that power, conferring upon the jury only the right to pass upon the necessity of taking the land specified for the purpose of carrying out a plan predetermined by the board. This is plainly the construction the board itself has placed upon the act, for nowhere in the petition is the court or jury advised of the character or scope of the improvement contemplated by the board. It is stated simply that it is “for the use and purposes of said board, as defined and declared by the law,” etc.

It is unnecessary to discuss the alleged insufficiency of the oath. Were it clear from other portions of the act that the constitutional duties had been imposed upon the jury, the oath might be held to be sufficient; but, inasmuch as the act requires amendment in its other provisions, the oath itself will doubtless be amended so as to clearly conform to constitutional requirements.

The order of the circuit court quashing the nroceedings is affirmed.

Blair, C. J., and Grant, Moore, ana Mo Alva y, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    CLIFTON v. KEELER.

    1. Estates op Decedents — Duties—Employment op Counsel.
    Where decedent and his wife were killed, nearly simultaneously, in a railway accident, and, under the terms of the will, the wife would have received the residuary legacy unless she died first, the administrator with the will annexed should proceed to collect the assets and obtain an adjudication of the right to the property, and cannot be enjoined from employing counsel at the expense of the estate to contest the complainant’s claim as an heir of deceased.
    2. Same — Equity Jurisdiction — Injunction—Executor and Administrator.
    Equity may in a proper case restrain an administrator from unlawfully dissipating an estate.
    Appeal from Jackson; Parkinson, J.
    Submitted October 12, 1909.
    (Docket No. 45.)
    Decided November 5, 1909.
    Bill by Elizabeth Clifton against George L. Keeler, administrator with the will annexed of the estate of John Parr, deceased, to restrain defendant from using funds of said estate in an appeal from an order of distribution. From an order sustaining a demurrer to the bill, complainant appeals.
    Affirmed.
    i2. 8. Woodliff. for complainant.

      Richard Price, for defendant.

       Rehearing denied December 10, 1909.

   Brooke, J.

The bill of complaint in this cause is filed by Elizabeth Clifton, who claims to be ah heir at law of John Parr, deceased, against the defendant, who is administrator with the will annexed of the estate of said Parr. It appears that John Parr and his wife were killed in a railway accident, dying at or nearly at the same time. Parr left a will, by the terms of which his wife was made residuary legatee and sole executrix. This will was admitted to probate, and the defendant was made administrator with the will annexed. Upon the coming in of the final account the complainant appeared by her counsel, and objected to several items of disbursement made by the administrator, and particularly to sums paid for monument, for funeral expenses, and for counsel fees. Before the order of distribution was made, testimony was taken in the probate court to determine whether or not Mary Parr survived her husband. At this hearing complainant was represented by her counsel, who examined and cross-examined witnesses, and apparently urged upon the court his contention that Mary Parr had died at the same moment John Parr had died, and that, therefore, the legacy given to her in John Parr’s will had lapsed, and claiming that the residuary estate should be distributed among the heirs at law of John Parr. The probate judge found against this claim, and made an order of distribution which directed the defendant herein to turn over the residue of the estate to the administrator of the estate of Mary Parr.

From the order allowing the final account, and making distribution of the residue as above, complainant appealed to the circuit court, and, while said appeal was pending, filed this bill to enjoin the 'defendant—

“ From using any further funds of said estate in further prosecuting or defending said appeal in so far as the same does not affect his final account; that he may be further restrained and enjoined from taking any part as such administrator in said appeal so far as the rights of the heirs at law of said Marry Parr, deceased, are opposed to any claim of the estate, claiming through or as heirs at law, of said John Parr, deceased, and further restraining and enjoining him as such administrator from using any funds of said estate, either for attorney’s fees or expenses in the prosecution of said appeal, or defending against the same in any way as administrator of such estate, and from interfering as such between the rights of conflicting legatees, heirs at law, or other claimants to the funds arising from said estate under an order of distribution to be entered therein.”

The bill charged collusion between defendant and the heirs and administrator of Mary Parr, as well as unlawful expenditure on the part of the administrator.

An order to show cause why a temporary injunction should not issue having been served upon defendant, he made a return thereto, under oath, denying all the allegations of the bill charging him with collusion with the administrator of the estate of Mary Parr, deceased. He at the same time filed a demurrer to the bill upon the ground that it lacked equity, and that complainant had an adequate remedy at law. Upon argument the demurrer was sustained, and complainant has appealed. In the meantime we are advised in complainant’s brief that the appeal from the orders of the probate court has been heard in the circuit court where a decision, adverse to complainant’s contention, was rendered, and that 'she had thereupon removed that case to this court by writ of error.

It is the claim of complainant that it is no concern of the administrator, whether the residue of the estate is assigned to the heirs of John Parr or to the heirs of Mary Parr. This is unquestionably true, yet the statute (3 Comp. Laws, §9316) provides that:

“Every person who shall be appointed administrator with the will annexed, shall, before entering upon the execution of his trust, give bond to the judge of probate in the same manner, and with the same conditions, as is required of an executor, and shall proceed in all things to execute the trust in the samo manner as an executor would be required to do.”

It is obvious that, before the trust can be executed by the administrator, there must be a determination of the question as to who is entitled to be considered in the order of distribution. That order having been made by the probate court, the complainant herein (and other alleged heirs at law of John Parr) appealed, giving a bond to the defendant herein as the adverse party. She now seeks to restrain him from taking part in the determination of her appeal. We are of opinion that this should not be done.

In Crane v. Beedle, 95 Mich. 524 (55 N. W. 433), this court said:

‘ Two parties are here claiming the right to the proceeds of said estate upon distribution thereof. As to which is the proper distributee is a matter that can only be determined in the proper course. If for no other reason, it is the duty of the administrator to collect the property, and then proceed in the usual course to have the question as to who is entitled to the property properly determined.”

This does not, of course, mean that the administrator is at liberty to dissipate the estate by the unwarranted expenditure thereof for counsel fees or expenses. His acts and disbursements are always subject to the closest judicial scrutiny, and, when he is found to have made improper payments from the estate, he will be held strictly accountable for the same. See Zimmer v. Saier, 155 Mich. 388 (119 N. W. 433). We think the rights of the complainant, whatever they may be, will be fully preserved upon the determination of her appeal from the circuit court. If she is found to be entitled to the residuary estate of John Parr, the same must be paid to her, less only the proper expenses of administration, and what those are will appear by proper judicial determination.

By the foregoing we do not mean to hold that a court of equity has not jurisdiction in a proper case to restrain an administrator from unlawfully dissipating an estate. Such a case might arise. This, however, is not one.

The decree is affirmed.

Blair, C. J., and Grant, Moore, and McAlvay, JJ., concurred.


author: Hooker, J. Ostrander, J.

text:
    HOYT v. PAW PAW GRAPE JUICE CO.
    1. Partnership Associations Limited — Statutes—Liability on Contracts--Authority oe Managers.
    A contract for employment executed by one of the managers of a partnership association, limited, and involving a liability of more than §500, is invalid under 2 Comp. Laws, § 6083, requiring the execution by at least two managers of contracts creating a liability of over §500.
    2. Contracts — Quasi Contracts — Money Had and Received.
    Money paid to a partnership association in consideration of a contract of employment, invalid for an insufficiency in its execution, may be recovered in assumpsit for money had and received.
    3. Assumpsit — Common Counts.
    Assumpsit for money had and received is an equitable action and can be maintained in all cases for money which, in equity and good conscience, belongs to the plaintiff, even without a showing of privity between the parties or an express promise to pay.
    Error to Yan Burén; Des Yoignes, J.
    Submitted June 16, 1909.
    (Docket No. 109.)
    Decided December 10, 1909.
    Assumpsit by Frank 'L. Hoyt against the Paw Paw Grape Juice Company, Limited, for the recovery of money advanced under a contract of employment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Anderson & Warner, for appellant.

      Thomas J. Cavanaugh and Benjamin F. Heckert, for appellee.
   Hooker, J.

The plaintiff paid to one of defendant’s managers, who received it on behalf of the defendant, $1,000. It went into the hands of its treasurer and was appropriated to its uses. This action is brought to recover it as paid without consideration.

The circumstances constituting the transaction are as follows: The defendant is a partnership association, limited, professedly engaged in the production and sale of grape juice. The plaintiff was a resident of Maine, whose attention was attracted to the defendant through an advertisement of the defendant published in a Maine paper. It was then doing business as the Malto-Grapo Company, Limited; the name being afterward changed. Plaintiff, desiring employment, wrote the concern, and correspondence followed which resulted in an interview at Paw Paw, Mich. As a condition to employment, plaintiff was told by Mr. Miller and Mr. Doud, professing to represent the company, that it would be necessary for him to pay to the company $1,000 for stock in the company to that amount. The arrangement was consummated by the execution of two contracts, as follows:

“This agreement, made in Paw Paw, State of Michigan, this 13th day of December, 1906, by and between the Malto-G-rapo Company, Limited, a corporation organized and doing business under and by virtue of the laws of the State of Michigan, party of the first part, and Frank L. Hoyt, of Lewiston, Maine, party of the second part, witnesseth:

“ That the parties hereto after a personal interview have embodied the result of all previous and present negotiations into this writing; said agreement being as follows, to wit:

First. That for and in consideration of the performance by the second party of each and all the terms and conditions hereinafter named, the party of the first part does hereby engage the party of the second part in the capacity of sales manager to conduct a sales agency in the city of Lewiston, State of Maine, for a period of two years from date, with option of longer time.

Second. The said party of the first part agrees to furnish and pay for suitable quarters for the business, all office stationery, all printed forms and all advertising matter so far as may be necessary for the successful conduct of the business in the estimation of the first party, including such stock of goods and samples of the product manufactured or sold by the Malto-Grapo Company, Limited, as may be designated by the first party, and to pay all the traveling expenses of the sales manager when authorized by the party of the first part in writing to make special trips, and to give said second party such instructions as may be necessary in the estimation of the first party for the successful management of the business;

Third. The first party agrees to pay the second party a salary of one hundred and twenty-five dollars ($125.00) per month commencing January 1,1907, and a commission of five per cent. (5 p. c.) on all sales made in excess of five hundred dollars ($500.00) per month during the continuance of this contract, and, in addition to the salary and commission above mentioned, will allow traveling expenses when authorized by the party of the first part to travel. ■ The salary and commissions are payable monthly, and all other expenses than those mentioned are subject to approval in writing of the said first party.

Fourth. It is also mutually agreed that the second party shall use his best judgment in selling goods to responsible parties and the commission to be based on accepted orders and shipments made for same. All collections and remittances are to be made direct to the home office in Paw Paw, by the parties to whom sales are made, unless otherwise instructed by the party of the first part.

“Fifth. It is agreed and understood that the second party hereto has absolute authority to contract with sub-salesmen and agents. Subsalesmen are to sell the retailer and dealer at wholesale prices. Agents are to sell to the consumer at retail or list prices. Said subsalesmen and agents, however, to be employed only on a commission basis, and such commission in no case shall exceed ten per cent. (10 p. c.) to subsalesmen, who sell dealers only. Where said agents sell to the consumer direct they are allowed a commission of twenty-five per cent. (25 p. c.) from the list prices. Said ten per cent, and twenty-five percent. (25 p. c.) specified herein are for subsalesmen and agents in addition to the salary and commission of sales manager mentioned in the fourth and fifth clauses. Such subsalesmen and agents are furnished with the salesmen’s blank report slips, which must be made out each day, giving reports of all sales made and to whom made, and turned in to the sales manager, who shall verify such reports and mail-copies with his regular weekly reports.

Sixth. As the permanent success of this business will depend upon a reasonable amount of merchandise being sold, it is understood and agreed that the amount of accepted and filled orders by the party of the first part from the sales agency of the party of the second part each month shall amount to five hundred dollars ($500.00), which shall be considered the minimum amount of business necessary to constitute the fulfillment of this contract. If the accepted orders of any month shall not amount to the minimum amount, namely, five hundred ($500.00), and during the succeeding months shall be in excess of the minimum amount to make up an average of five hundred dollars ($500.00) per month, then this contract will thereby be fulfilled in this respect by the party of the second part.

“Seventh. It is hereby further mutually agreed that should the business of said office be so conducted that the combined sales of the local manager and his subsalesmen and agents do not amount to at least five hundred ($500.00) dollars, per month, then in that case this contract at the end of twelve months may be terminated by mutual consent.

“ Eighth. The second, party as manager agrees to make complete weekly reports, stating the amount of goods sold, and to whom, and setting forth in detail all orders taken by himself and his subsalesmen and agents, and at the end of each month make a complete general report with such information as may be required of him by the company. And it is agreed by the second party that the prices of products are at all times subject to changes, and he is to be governed at all times by the terms and quotations received by the first party and in all matters deal honorably with the party of the first part and the public, and to devote his entire time and diligently and faithfully to the business, and in all things to be governed in the conduct of said employment by the instructions from time to time given by the company, to the end that each and every stipulation herein made separately and as a whole may be fulfilled.

“Ninth. The first party further agrees to protect the party of the second part from any prosecution on the sale of our products arising from the Maine prohibitory law.

Malto-Grapo Company, Limited.

[Seal of Malto-Grapo “Per Arthur R. Miller, Sec’y.

Co., Ltd., Paw Paw, Michigan.] “ F. L. Hoyt.”

“ This agreement, made and entered into this 13th day of December, A. D. 1906, by and between the Malto-Grapo Company, Limited, of Paw Paw, Michigan, party of the first part, and Frank L. Hoyt, of Lewiston, Maine, party of the second part, witnesseth:

‘ ‘ The party of the second part having this day purchased from the party of the first part one thousand (1,000) shares of the capital stock of the Malto-Grapo Company, Limited, a corporation (par value $1.00 per share), party of the first part agrees, upon the completion by the party of the second part of a certain contract of employment this day entered into by and betweén the parties hereto, to appoint a successor who will take over the said capital stock held by the party of the second part at par, payment of said stock to be made in cash.

“ It is further agreed in case the above-mentioned contract is terminated by mutual consent that the party of the first part will appoint a successor who will take over the said capital stock held by the party of the second part at par, payment of said stock to be made in cash.

“ Witness the hands and seals of the parties hereto the day and year first above written.

“Malto-Grapo Company, Limited,

[Seal of Malto-Grapo “ Per Arthur R. Miller, Sec’y.

Co., Ltd., Paw Paw, Michigan.] “ F. L. Hoyt.”

At that time, and as part of the same transaction, plaintiff paid over the sum of $1,000, the sole inducement for which was that he thereby obtained employment, as he supposed. Subsequently he received a certificate of stock in the company for 1,000 shares of the capital stock of the Malto-Grapo Company, par value $1 per share, bearing date January 4, 1907, signed by J. D. Northrop, Chairman, and Arthur R. Miller, Secretary. Plaintiff proceeded in the performance of his supposed contract for a month, but then found that he understood his rights under it differently from the understanding of defendant’s manager, who refused to pay him the salary of $125 for January. He consulted counsel and was advised that the contract was void under the statute, for the reason that it was signed on behalf of the company by only one person. He thereupon sent defendant the following notice:

“ Lewiston, Maine, March 4, 1907.

“ To the Malto-Grapo Company, Limited,

“ Paw Paw, Mich.:

“Having waited a reasonable length of time for you to comply with the contract of hire made between your company and myself on or about December 18, 1906, and being convinced that I was led into signing said contract and the purchase of stock in your company by false and fraudulent representations, both as to said stock and as to said contract of hiring, and being further convinced that you do not intend to comply with the agreement as contained in said contract of hiring, and I having no reason to purchase said stock except as a means of obtaining employment and the remuneration therefor promised me in the letters and offers which induced me to sign said contract and in the contract itself as signed, you are hereby notified, that I do hereby rescind said contract of hiring and said purchase of stock on, the ground of false and fraudulent representations made to me by officers of your company, and on which I relied, and which induced me to enter into said contract of hiring and to purchase said stock. And I rescind the same on the further ground that said contract of hire was the real consideration for my purchase of stock in your company, and you have failed to comply with the terms of said contract, and the consideration for the purchase of said stock has failed.

“I will transfer said stock to whatever person you name, and the property of the company here is at your disposal. I demand the unpaid balance of my salary which I eafned for the month of January, 1907, and I demand back the money I paid for said stock. If this demand is not promptly complied with, I shall bring suit to recover the same and whatever in the way of damages, the law will allow.

“ Frank L. Hoyt.”

It was sent by registered mail; evidence of delivery being the return receipt dated March 9, 1907. This action followed. Upon the trial plaintiff’s deposition was read. Defendant offered no testimony. It was conceded that the money paid by plaintiff went into defendant’s treasury, that it was a partnership association limited, that Miller and Doud were managers, and that the plaintiff received $58.05, being an advancement of 25 per cent, as commission on sales .made, and his expense account for <?ne month. Defendant expressly denied its liability to make such advancement in the letter inclosing the money. A verdict for the defendant was directed, and plaintiff has appealed.

It is the settled law of this State that a single manager of a partnership association, limited, has not the authority to make a contract that creates a liability for an amount exceeding $500. Section 6083, 2 Comp. Laws, states this in as many words. Grant, J., with the approval of his associates, said, in Citizens’ Sav. Bank v. Vaughan, 115 Mich. 159 (73 N. W. 144), that:

“The statute governing partnership associations provides as follows (1 How. Stat. § 2369):

“ ‘And no debt shall be contracted nor liability incurred for said association except by one or more of said managers, and no liability for an amount exceeding $500 except against the person incurring it, shall bind the said association, unless reduced to writing, and signed by at least two managers.’

“ Undoubtedly both parties acted in ignorance of this statute; but the statute must control. The liability, being for more than $500, required the signatures of two of its managers to make it valid. Is the mortgage company liable on each note to the extent of $500 ? Counsel for the bank contend that the indorsement is good for $500, and void for the excess. We cannot concur in this view. The words of the statute are, ‘ no liability for an amount exceeding $500,’etc. We think the statute contemplates that the invalidity should attach to every contract in its entirety where the amount exceeds $500.”

This case was followed in Rhoades v. Pure Food Co., 149 Mich. 235 (112 N. W. 940), a case brought against this same defendant by one who sought to recover for his services rendered under a similar contract. He was defeated upon the ground that the contract for service was void.

Under these decisions this contract was a nullity “in its entirety,” and it was no more binding upon the plaintiff than the defendant, upon the familiar principle that there was a want of mutuality. Miller had not the capacity to make this contract. It was no better than as if made by a stranger. Had plaintiff known that, he would have been justified in treating it as void, and, if his money had been received by the company, it would have been its duty to pay it back upon demand, and, if it refused, the same could have been recovered in a proper action for money had and received to the use and benefit of the plaintiff. It is suggested that this statute precludes the making of a contract except by writing signed by two managers, and therefore no implied contract can arise from the acts of the managers or the receipt of the plaintiff’s money by defendant, and therefore plaintiff cannot maintain an action for money had and received. The right to bring this action exists whenever a person, natural or artificial, has in his or its possession money which in equity and good conscience belongs to the plaintiff, and neither express promise nor privity between the parties is essential. See Beardslee v. Horton, 3 Mich. 560.

“ It is an equitable action, and can be maintained in all cases for money which in equity and good conscience belongs to the plaintiff.”

We said, in Moore v. Mandlebaum, 8 Mich. 433:

“We understand the law to be well settled that the action of assumpsit for money had and received is essentially an equitable action, founded upon all the equitable circumstances of the case between the parties; and if it appear, from the whole case, that the defendant has in his hands money, which, according to the rules of equity and good conscience, belongs, or ought to be paid, to the plaintiff, he is entitled to recover; and that as a general rule, where money has been received by a defendant under any state of facts which would in a court of equity entitle the plaintiff to a decree for the money, when that is the specific relief sought, the same state of facts will entitle him to recover the money in this action.”

See, also, Atkinson v. Scott, 36 Mich. 18; Corey v. Webber, 96 Mich. 360 (55 N. W. 983); Hicks v. Steel, 126 Mich. 408, 415 (85 N. W. 1121); McCurdy v. County of Shiawassee, 154 Mich. 556 (118 N. W. 625). We said in Hicks v. Steel, supra, that—

“Where one is justified in rescinding a contract, he is entitled to recover the consideration paid; and, where the consideration is money, an action for money had and received will lie.”

See 4 Mich. Dig. Title, “Money Received.”

It is admitted that this money found its way into the treasury of the defendant, and it has it now, or, if not, it has appropriated it to its own purposes. The claim that the purchase of the stock is a separate and distinct transaction and contract is not tenable under the proof in this case, which shows that it was a part of the arrangement on December 13th; $500 being paid that day, and $500 being sent by draft later. Defendant’s own brief implies as much where it states that it (the stock) was sold to plaintiff to increase his interest in the business and spur him on to greater zeal in putting goods upon the market.

It is contended that this court has never held that contracts prohibited by section 6083 were void, except where the question was raised on behalf of the partnership association. If that be true, it signifies nothing. It certainly cannot be that a party to a contract, which is a nudum pactum because of the incapacity or failure of the other party to make the contract, can be bound by his naked promise.

This defendant was in a situation to raise this question in its own defense at any time. Nothing less than action amounting to a new contract in compliance with the statute could bind it. Therefore the plaintiff’s right to treat it as void is in no way compromised by what has been done. What the rights of the parties may be as to the work performed by, and money paid to, the plaintiff are not involved in this case.

The judgment is reversed, and a new trial ordered.

Montgomery, Moore, and McAlvay, JJ., concurred.

Ostrander, J.

(concurring). Plaintiff has declared specially upon the written contracts which are set out in the opinion of Mr. Justice Hooker. He avers his purchase of shares of the capital stock of defendant and payment for the same, and his execution of the said contracts to have been induced by false and fraudulent representations “both as to said stock and as to said contract of hiring, all of which he relied upon,” and that the contract for employment was the real consideration for his purchase of the stock. For breaches of contract he avers that, although plaintiff was always ready and willing to enter into and continue in defendant’s employ, “on the terms aforesaid,” and has performed the contract on his part and waited a reasonable time for defendant to perform, yet defendant has refused and failed to employ the plaintiff in the capacity and on the terms aforesaid, and has refused to pay him a salary of $125 a month and commissions, and has refused to appoint a successor to take over the said capital stock, and has refused to take said stock itself. The common counts in assumpsit are joined with the special count. There is nothing in the declaration to indicate or suggest rescission or disaffirmance of the contract of hiring. The special count proceeds entirely upon the theory of affirmance of the contract and the enforceability of the contract obligations. There is no testimony tending to prove any false or fraudulent representation of defendant. If any was introduced, it was stricken from the record on motion of counsel for plaintiff.

Defendant did not refuse or fail to perform the contract obligations. What it did do was to refuse to perform the contract of hiring in accordance with plaintiff’s interpretation of said contract. Plaintiff’s reading of the contract was not the correct reading. The contract before us and the one considered in Haas v. Malto-Grapo Co., 148 Mich. 358 (111 N.W. 1059), cannot be distinguished. Plaintiff left the defendant’s service and is the one chargeable with breach of the contract of hiring. It is clear therefore that plaintiff cannot recover under the special count.

I find in the record nothing tending to prove that when plaintiff, in his letter to defendant of March 4, 1907, announced a rescission, and when later he began this suit, he had been advised or understood that the contracts set out in the declaration did not bind the defendant. On the contrary, he relied, as the letter clearly shows, upon alleged false representations and upon the nonperformance of the contract of hiring according to its terms as he interpreted and construed those terms. He demanded his unpaid salary and the money he had paid for his stock.

Both parties requested that a verdict be directed, and the court directed a verdict for defendant. Plaintiff requested the court to direct a verdict in his favor, because the contract of hiring was never binding on defendant, for which reason the consideration for the purchase of the stock of defendant failed. This request and the ruling thereon raises the sole point for our consideration. Clearly, this request was preferred upon the theory of a disaffirmance of the contract of hiring — upon the theory that the consideration for the money paid for the stock had failed. The testimony for plaintiff tends to prove that for the money which he paid for the stock, and which defendant received and appropriated, he was to receive not only certificates of shares in defendant association, but, in addition thereto, he was to be hired by the defendant, which, in that behalf, was to execute with him a written, valid contract of hiring. In other words, the understanding was that he was to receive shares of stock and a promise of defendant which should bind defendant; the stock being purchased because the defendant made such purchase a condition to employment. The under- > taking, so far as hiring plaintiff is concerned, was then wholly, and is now, by its terms, in part, executory. It did not, and does not, bind the defendant. Rhoades v. Pure Food Co., 149 Mich. 235 (112 N. W. 940). The defendant exists by virtue of the statute. No method, other than the statute method of contracting is authorized. The statute method was,not followed, with the consequence that the association is not bound by the contract of hiring or by the agreement to repurchase the stock, although the officer who executed them is bound. Both contracts were, however, such as it was within the power of the association to make, a consideration which distinguishes this case and McCurdy v. County of Shiawassee, 154 Mich. 550 (118 N. W. 625); and, as no rule of public policy is violated in refusing to permit defendant to retain money where the principal consideration it has given for it has wholly failed, none is violated in permitting a rescission and recovery as for money had and received.


author: Montgomery, J.

text:
    RANDALL v. J. A. FAY & EGAN CO.
    1. Sales — Contracts—Implied Warranty of Fitness.
    With the sale of a molder, which was represented to be satisfactory for light moldings, sash, door, and blind work, a warranty that,„the machine, which the seller manufactured, was fit for its intended purpose is implied, and may be enforced in an action for damages, notwithstanding a clause in the contract of sale that the retention of the molder for more than thirty days should avoid all express or implied warranties, such contract provisions being waived by a promise to remedy defects, made within the thirty-day period.
    2. Principal and Agent — Evidence of Authority.
    Agency may be inferred from the fact that the circulars and letter heads of the defendant described the salesman, with whom the plaintiff dealt, as their agent for Michigan.
    Error to Arenac; Sharpe, J.
    Submitted April 26, 1909.
    (Docket No. 86.)
    Decided December 10, 1909.
    Assumpsit by Herman J. Randall against J. A. Eay & Egan Company for breach of warranty. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      M. D. Snow, for appellant.

      B. J. Henderson, for appellee.
   Montgomery, J.

This is an action brought to recover upon an implied warranty of fitness. The defendant’s Michigan agent, Mr. George A. Jenbs of Detroit, furnished plaintiff with a circular describing a No. 2, four-sided six-inch molder, containing, among other things, the statement:

“This machine is recommended for light moldings, sash, door and blind work or narrow ceiling. It is heavy and substantial, and all parts easy of access. It works four sides at one operation.”

After some correspondence, a contract was made consisting of añ order signed by plaintiff and subsequently accepted by defendant, describing the machine as a “No. 2 six-inch four-sided molding machine with four-sided slotted steel head on each spindle, and each head fitted with a pair of straight knives,” etc., for the price of $310; $50 to be paid in cash, and the deferred payments evidenced by notes. It was agreed that the title should remain in the defendant until fully paid for, “and that a retention of the property forwarded, after thirty days from date of shipment, shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made by or for the consignor, and void all its contracts of warranty expressed or implied.”

The machine was shipped to plaintiff, and he immediately forwarded to the defendants, at their home office in Cincinnati, the notes provided for by the contract, and on the same day wrote to the State agent, Mr. Jenks, as follows:

“ The molder is here, and I have it running, and it is the poorest set up rig I ever saw that was made by Fay. The pulley on the lower cylinder is put on with a set screw that has no thread on it and stops every time it has a hard cut. There is no chip breaker on the outside side head and throws all the shavings and slivers back to the man behind the gun. The hood and chip breaker on the top head binds the stock so the feed will not take it through only as you set it up so it will not touch, also they did not send any extra bolts so if you want to make molding you have to take off the straight knives to get bolts to put on the molding knives. I have sent them the money and notes and now I want you to have them send me the bolts and set screw for cylinder also some kind of a rig for a chip breaker for outside head and oblige.”

On receipt of this letter, Mr. Jenks wrote that he would have the bolts and set screws forwarded, but that a chip breaker was not used on the outside of the machine, so far as his knowledge extended, and later, evidently on re- ■ ceipt of a letter from the defendant home office, wrote that he was right in the supposition that a chip breaker was not furnished. On the 23d of September, the plaintiff again wrote the State agent, Jenks:

“Are you coming north soon ? If so, I wish you would come to Standish, as I would like to show that machine so you could see just what it is. I am not satisfied with it at all, and I know when you see it you will make it satisfactory with me. Please let me know when you can come and oblige.

“Yours respectfully,

“ H. J. Randall.”

In reply to this the State agent wrote:

“Your letter of the 23d inst. is just received, and its contents noted. ' I am unable to say just at the present, writing when I am coming up in your vicinity. However, it would not be necessary for me to come up especially to see you, for if you will write me fully just why it is that you are not satisfied with the six-inch molder I will take it up with our people directly and have it straightened out to your satisfaction. Perhaps you may need a cut of the machine to help you explain and I inclose it herewith. Please write me fully just exactly what the trouble is, and you can rest assured that I will do the best I can to have the matter straightened out to your satisfaction.”

The next correspondence that is introduced is that of the following spring, when a letter appears to have been written to Mr. Jenks, complaining that he had not been up to see the machine. There is also testimony in the record that within 30 days from the receipt of the machine, the plaintiff wrote to Jenks telling him that he would not keep the machine in the condition it was in at that time. This was in answer to his letter of September 25th. He received reply from Jenks stating that he would take it up with his people right away, and that they would make the machine right, and the plaintiff need not worry about it; that he would fix it up satisfactorily. This all occurred within 30 days from the time the machine was received.

The case was submitted to the jury under an instruction that, under the circumstances, there was an implied warranty on the part of the defendant that the machine should be reasonably suitable for use as a molder; secondly, that it was the duty of the plaintiff in the first instance, if the machine was found unsuitable for the purpose, to return it within the 30 days fixed by the contract; thirdly, that if within 30 days Mr. Randall made complaints to the company, through its agent, that the machine was not as represented, and that the company agreed to make the defects good, that would be a waiver on the part of the company of this condition, and that if the machine did not in fact answer the terms of the contract, the plaintiff would have a right to recover.

It is the contention of the defendant that there was no warranty, and that if there was a warranty, the plaintiff’s ; only remedy, in case the machine was not suitable for the purpose intended, was to return the property. We do not understand that this contract assumed to give the plaintiff the right to reject the machine at his pleasure. He could only reject it for cause, and that cause must be the implied undertaking on the part of the defendant that the machine was suitable for the purpose intended. It was a machine of defendant’s own manufacture, and would carry with it an implied warranty that it was reasonably fit for the use intended. Blodget v. Detroit Safe Co., 76 Mich. 538 (43 N. W. 451); Little v. Van Syckle & Co., 115 Mich. 480 (73 N. W. 554); Tufts v. Verkuyl, 124 Mich. 242 (82 N. W. 891). In addition to this, in the present case there was, in the circular sent to plaintiff, a very clear implication that the machine was suitable for the purpose intended, and was expressly recommended for that purpose. It is true that the remedy for a breach of this warranty was fixed by the contract, which remedy was the return of the machine. But unquestionably this was a remedy which might be waived. It was in fact waived, if there was authority in the agent to waive it. The testimony is undisputed, and it shows an agreement on the part of the defendant that it would be fixed up satisfactorily. Acting upon this, the plaintiff paid the notes, which constituted the purchase price, and then brought this action upon the contract. This agent was described in the letter heads which he used as the agent for Michigan. These letter heads were shown to have been in the possession of the plaintiff. Letters were produced from the defendants which contained this letter head. The circulars issued described Jenks as the Michigan agent, and we think the inference of authority from this description is clear. See Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50, 34 Am. St. Rep. 350), and Westinghouse Co. v. Gainor, 130 Mich. 393 (90 N. W. 53).

The circuit judge committed no error in the submission of the case to the jury, and the judgment will be affirmed.

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


author: Brooke, J. Ostrander, J.

text:
    JOHNSON v. HOGAN. CLEVELAND-CLIFFS IRON CO. v. HULL.
    1. Partnership — Real Property — Evidence of Title.
    Whether lands held in the name of one partner or of all are to be deemed copartnership property is generally a question of intent, to be gathered from the manner in which the members of the firm have dealt with the property,

      2. Same — Express Agreement — Necessity.
    No express agreement is necessary to establish the equitable interest of a copartnership in property held for the benefit of the firm in the name of one of the partners, nor need the circumstances surrounding the transaction or the dealings of the partners with the property be equivalent in weight to an express agreement, if. the agreement may be implied from their purpose, business or their dealings with the real estate.
    3. Same — Trust Estates — Evidence.
    It is not necessary to title in the partnership that the lands should have been purchased with partnership funds, since it may have been contributed by the member as a part of the firm capital.
    4. Estoppel — Real Property — Equity.
    While title to real estate cannot be divested by estoppel at law, equity may enforce the claim as against the legal title.
    5. Partnership — Real Property — Title of Lands in'One Partner’s Name.
    Real property held by one partner in his own name and treated by him and by his associates, with his knowledge, as copartnership property, will be treated in equity as assets of the partnership.
    Appeals from Marquette; Stone, J.
    Submitted April 8, 1909.
    (Docket Nos. 15, 16.)
    Decided December 10, 1909.
    Bills by Charles Johnson and the Cleveland-Cliffs Iron Company against Philip J. Hogan and others, and by the Cleveland-Cliffs Iron Company against Louise T. Hull and others, to quiet title to land. From decrees for defendants, complainants appeal.
    Reversed, and decrees entered for complainants.

      William P. Belden {Hoyt, Dustin, Kelley, McKeehan & Andrews, of counsel), for complainants.

      A. B. Eldredge and A. E. Miller {Benton Hanchett, of counsel), for defendants.
   Brooke, J.

The foregoing are companion cases; the determination in either being controlling of the other. We will consider the first of the two cases.

The amended and supplemental bill of complaint avers: That the complainant, the Cleveland-Cliffs Iron Company, is the owner in fee simple of lots 7, 8, and 9 of section 36, township 45 north, range 25 west, Marquette county, Mich., and is in constructive possession of said premises, and no one is in actual possession thereof. That it had on. November 25, 1905, acquired title thereto by a proper deed from complainant Charles Johnson and his wife, Louise Johnson. That said Charles Johnson had on the same day acquired title thereto by a proper conveyance from the widow and heirs of Isaac Johnson, deceased, who were at that time the owners in fee simple of said premises. Further, that the defendant Hogan had acquired certain tax titles covering said lands which the complainant had on September 30, 1905, sought to redeem by tendering to said Hogan the sum of $288.32; that being the amount required to redeem from said tax purchases. That the original bill of complaint was filed to compel redemption from Hogan, and to acquire title.

To which original bill defendant Hogan answered, denying, in substance, the title of complainants to said lands, and alleging, on the contrary: That one Henry Hull was at the time specified in the. bill the grantee under the last recorded deed of the lands described in said bill of complaint, and claiming that he (said defendant) had caused due notice of his tax deeds to be served and published according to the statute in such case provided, and claiming to be the absolute owner of said land. That after the filing of the original bill and the answer thereto, the complainant learned that Mrs. Louise T. Hull, widow of Henry Hull, claimed to be the owner of said lands, and that about March 1, 1906, said Louise T. Hull executed and delivered a quitclaim deed of said lands to one John R. Gordon of Marquette, Mich., reserving to herself a one-eighth interest in the ores and minerals in and under said land, and all the timber thereon, with the right to remove the same within three years, which deed was, on March 15, 1906, recorded in the office of the register of ■deeds of Marquette county. That on, to wit, March 15, 1906, said John R. Gordon claimed title under said deed and caused to be deposited with the register in chancery ■of Marquette county the sum of 1233.02 for the purpose of redeeming from the tax sales to Hogan. That said John R. Gordon and Mrs. Louise Hull now claim to be the owners of said lands in the proportion stated in the deed last above mentioned. That said Louise T. Hull claims title to the premises under and by virtue of the terms of the will of one Alfred Hull, who died at Escanaba, December 1, 1874, and by the terms of which will all of his property was devised and bequeathed to his two brothers, Thomas Hull of Chicago, 111., and said Henry Hull of Fond du Lac, Wis. That Thomas Hull died December 31, 1885, leaving a will, by the terms of which said Louise T. Hull claims that said Henry Hull became entitled to the right, title, and interest of the said Thomas Hull, and, as she claims, the entire estate in said property, by reason of which she, at the time of the execution of said deed to John R. Gordon, asserted and claimed to be the owner of the premises hereinbefore described.

Complainant avers further: That said Louise T. Hull and her grantee, Gordon, have no right to the title or interest in said premises, and set out as reasons for said claim that on or about the 1st day of November, 1866, Alfred Hull of Escanaba, Mich., Robert A. Connolly of Waukegan, III., and S. C. Baldwin of Escanaba, Mich., formed a copartnership, under the name of R. A. Connolly & Co., for the purpose of carrying on the business of manufacturing, sawing, and selling lumber, and of obtaining timber lands, and of operating a steam sawmill at or near Little Lake station on the Peninsula division of the Chicago & Northwestern Railway. That said Hull,. Connolly, and Baldwin, for the uses and purposes of. said partnership, and as a part of the property of the same, and for the purpose of supplying said mill with lumber and timber, agreed to, and thereupon did proceed to, enter certain descriptions of government land in township 45 north, range 25 west, in Marquette county, Mich., adjacent to or in the vicinity of said mill, and obtained the patents therefor in the names of said individual partners; some being taken in the name of Hull, some in the name of Baldwin, and others in the name of Connolly, but that all so entered were taken and patented in trust for the uses and purposes of the partnership, which thereupon was the real and equitable owner of all the lands. That among the lands so entered, patented, and purchased for the purposes of said partnership were the lands in controversy in this suit, which were entered on the 13th day of' December, 1866, in the name of Alfred Hull. That, after carrying on the affairs of the partnership for some time, Hull entered into an agreement with Baldwin, by which he contracted to convey and sell to Baldwin all his interest in said partnership property, including said lands. That, after being paid the consideration to be received by him, Hull turned over to Baldwin his entire interest in said partnership property, and that said instrument of conveyance from Hull to Baldwin has been mislaid and lost. That after said sale Baldwin and Connolly continued to carry on the business of the partnership, taking the timber as well off the Hull lands as the other lands, until 1871, when Baldwin retired from said partnership and conveyed all his right, title, and interest to said partnership, and the lands operated in connection therewith, including the Hull lands, to Samuel H. Hartman and Theodore W. Hartman. That this deed from Baldwin to the Hartmans has likewise been lost. That the Hartmans paid Baldwin the full purchase price, and the Hartmans and Connolly continued thereafter to operate the property until the 16th day of November, 1874, when it was sold to Isaac Johnson. Prior to this date said Johnson had been operating the mill for Hartman, Connolly & Co. In the course of said operation, the firm had become indebted to Johnson in the sum of $5,000. On the said 16th day of November the two Hartmans entered into a contract with Johnson agreeing to convey to him a two-thirds interest in said business and lands, including and describing the Hull land, for the sum of $11,222.34, and on the 23d day of November, 1874, Connolly contracted to sell his one-third interest to Johnson at the same rate; the Hull lands being likewise included therein and specifically described. That thereafter said Johnson took possession of said property, paid the consideration mentioned in said contracts, and lumbered said tract for a period of upwards of 10 years. That on the 3d day of January, 1876, Connolly executed a quitclaim deed to Johnson in pursuance of said contract; said deed specifically describing the Hull and Baldwin lands, as well as those entered in Connolly’s name, which deed was duly recorded. That said Johnson continued in full possession and control of the property, including the lands in question, until his death, in November, 1883. That neither the Hartmans nor their heirs have executed a conveyance, in accordance with the contract, of their two-thirds interest.

The prayer of the complainant is:

(1) That said complainant, the Cleveland-Cliffs Iron Company, be decreed to be the owner in fee simple of the lands hereinbefore described, and that its title thereto be quieted, confirmed, and established.

(2) That said Louise T. Hull and John R. Gordon be permanently restrained from interfering with said complainants in the possession of said premises and from claiming to own the same.

(3) That the unknown heirs of each said Samuel H. Hartman, Theodore W. Hartman, and C. G. Hartman be required to specifically perform the terms of said contract, and that they be decreed to release and quitclaim to said complainants all their right, title, and interest in and to said premises.

To this bill of complaint defendants John R. Gordon and Louise T. Hull Morehouse, formerly Louise T. Hull, filed separate answers in the nature of cross-bills, aver.ring: That Alfred Hull, the original patentee of the lands in question, died without having parted with the title to said lands and disposing of them by will to the two brothers Thomas and Henry; that Thomas had not parted with his interest in said lands, leaving the property to his brother Henry; and that Henry died intestate, leaving defendant Louise T. Hull, his sole heir; praying that defendants’ title may be quieted by the decree of the court, and that defendant Hogan be decreed to reconvey his title-acquired by the tax deeds. Hogan answered setting up absolute title to the lands in question under his tax conveyances. The record shows, however, that he has accepted redemption from one or the other of the parties litigant, and has now no interest in the controversy.

But one question is involved in this case, viz., whether or not the lands in controversy became in fact, or should now be treated as, the property of the firm of R. A. Connolly & Co. It is apparent that the complainant, by virtue of the conveyances from Johnson, has acquired the interest in the partnership of Baldwin and Connolly. By virtue of the same conveyances, it has likewise acquired title to the Hull lands, if those lands were in fact partnership property, although entered in the individual name of Hull. After a full hearing the learned circuit judge reached the conclusion that the complainants were not entitled to the relief sought, and entered a decree giving the title to the lands in question in defendants Gordon and Hull. From this decree complainants appeal.

The record is of great length and contains many exhibits. For the purpose of showing the intent of the parties as to the character of the interest of the partnership in the lands in question, complainants rely, in part, upon the following written items of evidence:

(1) The original partnership agreement is as follows:

Memo, of agreement made this first day of November, 1866, by and between R. A. Connolly, of Waukegan, Lake county, Ill., S. C. Baldwin of Escanaba, Delta county, Mich., and Alfred Hull of said Escanaba:

“Said parties have formed a copartnership for the purpose of carrying on the business of sawing and selling lumber, and put into operation a steam sawmill, at Little Lake station on the Peninsula Division of the Chicago & North Western Railway. It is understood and agreed that each party interest in said mill and business is one-third. Each is to pay one-third of the whole cost and losses, if any, and to receive one-third of the profits, if any. Said Connolly is to render at once a statement of the cost of said mill, with the vouchers. The proceeds of lumber sold after reserving the cost of sawing, and furnishing, are to be applied first to the payment of all bills, for labor and material, now unpaid. When these are paid in full, then the profits, if any, are to be divided equally between said partners, each and every month. Said Hull is to keep accounts of the sales of lumber, and said Connolly or Baldwin are to collect said bills as rendered by said Hull, and each party is to use all proper exertion for the success of said undertaking, and to give such portion of his time to such purpose, as he may be required by the other parties, reasonably, to do. All notes or evidences of indebtedness against said property shall be signed by all three partners, and neither of the partners shall assign or sell his interest without the consent of at least one of the other partners in writing. The term of this partnership is to be for three years from this date, unless sooner terminated by the consent of the parties.

“S. C. Baldwin. [Seal.],

“R. A. Connolly. [Seal.]

“A. Hull. [Seal.]

* ‘ In presence of: -. ”

(2) Correspondence antedating the copartnership agreement between Hull and Connolly, as follows:

“ Escanaba, June 30th, ’66.

“R. A Connolly, Esq.,

My Dear Sir: Mr. Baldwin handed me a letter last evening which he had just received from you, in which you state that you have purchased engine and mill fixings, at a cost of sixty-three hundred dollars, cash down. The capital that it will require to start and stock the mill will be so large that my proportion of the same would exceed my cash funds, and therefore would be but a weak limb in the concern. It won’t do for me to undertake what I can’t fulfill. At the same time I will act in the same manner as though I was a partner. I have but a moment to write you. When I seeyou will explain to your satisfaction. There are plenty who will gladly take the chance. The timber land has been secured by Mr. Baldwin. I have not said a word to him as to how I was situated, as he might want, with you, I can reason and will go as far as able, say $1,500. (I think Clark like would join.) Wait completed drawing piles on the 16. Hope to complete the merchant dock bef. Tuesday night. One word more. Now Mr. Connolly don’t judge me harshly in this case. I want to see you and talk the whole matter over with you quietly. With kind regards, I remain, “ Respectfully yours,

“A Hull.”

“R. A. Connolly, Esq.,

Dear Sir: I had a long conversation with Mr. Baldwin on yesterday in regard to sawmill. He still thinks it a good investment, and I rather infer that he may think that. I have been boyish in the premises. At any rate I told him, as I told you, that I would still, if necessary, put in fifteen hundred dollars, but still I don’t change my mind in regard to the results. We digested the matter I think carefully. His proposals are generous indeed, but are they sure he says so and so will be wanted, granted they will be ? Will it be certain that they will be wanted from our mill ? That is a point we want to be very certain about. Eor without the constant patronage of the company the mill would be a certain loss and a very small margin at best — but it is useless for me to repeat what we talked carefully over, when at Escanaba. I merely write you confidentially knowing that he has recently written you about the mill. If you say build the mill, why I am with you. “Yours respectfully,

“A. Hull.

“ P. S. We have had splendid weather for driving. I think they will about complete the driving for main dock this week. I think it will look bad as an improvement that is the location. (C. E.)”

“ Peninsula Division (P. 125), Chicago and North Western Railway Co., Land office.

“Escanaba, August 30, 1866.

“R. A. Connolly, Esq.,

Dear Sir: I have been so very busy since you left that I have not had the time to write you sooner. Have been urging the work along at Lake for Mill. Gourlay will be able to commence the frame on Wednesday and wishes me to say to you that he would like a drawing showing the position of the machinery, when at work. Thinks it would enable him to get along with the work faster. The side track will be completed during the week. Have urged that part as far as I dare. In fact thus far the work has gone very satisfactory, but at the same time I hope it will be convenient for you to be at Escanaba soon, as it is all important that the mill should be at work as soon as the 20 of September. You of course understand that part. I shall keep the work moving in your absence. There is one point that is plain to be seen, if the concern is made to pay for itself, we have got to put our shoulders to the wheel. I can see (a doubt) but I don’t consider this the time to lookback. We can and will make the mill pay. Mr. Baldwin has been very ready to do anything that he could to forward the work. We are looking very anxiously for the Home and will keep Chapman and men employed until it comes. He will have the house about completed by Tuesday night. In fact if he should remain there the balance of the week, he would be very useful, to the work generally. Lynnan will commence hauling long piles at once. As soon as he gets enough on hand, will have them brought down. Mr. Baldwin is very much opposed to working on Sunday, and it can also be avoided, so soon as the side track is completed, which I think will be done in time. Hoping to see you soon at Escanaba, I remain, dear sir,

“ Respectfully,

“A. Hull.”

(3) Letter from Hartman to Connolly:

“ Negaunee, Nov. 19, ’74.

“R. A. Connolly, Esq.: Yours of 16th duly to hand, and am sorry it did not come sooner, as I consummated sale to Isaac on Monday last (as I led you to anticipate would be unless I heard from you by return mail or telegraph). But I rather think he will take your interest on the same terms and figures that he took ours (details of which you will observe in mine of 5th inst., i.e. approximately). And so I think Isaac will still do. As he uniformly has done just as we agreed upon, and his proposition was really based on including your interest (less of course the $700 you owe him). As to conferring with your attorneys, Ball & Black. If there is any particular or special point you wish me to ask, advise, and I will do so with pleasure, but as to this sale I see nothing to ask them, as we merely agree to give Isaac the mill property and the Negaunee yard free of incumbrances, and same title as S. G. Baldwin gave us, and we don’t have to give that until he pays the notes, as we reserve that as collateral. So, if that is satisfactory to you advise at once and I will try and close you out before I leave. Isaac will be here next Monday or Tuesday.

[Signed] “T. W. Hartman.”

(4) Contracts between the Hartmans, Connolly, and Johnson, already referred to in statement of complainants’ claims in their bill of complaint.

(5) Memorandum of effects attached to will of Alfred Hull:

“ Memo, of effects and will of A. Hull made at Chicago, 111., February 22, 1871:

“Memorandum of bonds, mortgage, etc., belonging to A. Hull with their Nos. for a memorandum in case they should be lost or stolen after this 21st day of February, 1871:

“Nos. of IT. S. Gov. 5-20 bonds, viz.:

“130986 for 1,000 dolls.

“130985 for 1,000 dolls.

“Mem. &Nos. of stock by him in the First National Bank of Marquette, viz.:

“5 shares of $100 Ea. Nos. 236.

“5 shares of $100 Ea. Nos. 200.

“4 shares of $100 Ea. Nos. 226.

“ The premium on the above is worth 2,100 dolls.

“ 321 dolls, deposited in the First National Bank of Marquette.

“A note against 8. C. Baldwin and B. A. Connolly, dated Bscanaba, June 1, 1867, for 660 88 /100 dolls.

“Also Note against C. C. Elliott, dated Esoanaba, May 9, 1867, for 900.00 dolls.

“Also Amt. paid Emory per his order, dated Aug. 29, ’67, for 50.00 dolls.

‘ ‘Also $25 paid for filing caveat on scrapers.

“Also a note from A. I. Smiley dated Esoanaba, Nov. 18, ’68, for 80.00 dolls.

“Also a note from O. C. Hill, dated Esoanaba, Sept. 1, 1870, for 3,000.00 dolls.

“Also a due bill, dated Esoanaba, March 1, ’70 from O. D. Sloat for 40.00 dolls.

“Amount deposited with Thos. Hull for safe-keeping this 22d day of February 1871, is 5,000 dolls.

“ I have expressed to Judson Bank Ogdensburg today, Feby. 22, ’71,7,000 dolls, which will remain in the express office until my arrival.

‘ ‘ I have mortgages in T. B. Tate’s possession, Ogdensburg, amounting to 4,000 dolls.

“I hold a mortgage against T. B. Tate, Ogdensburgj for $5,000.

“Also I have the fol. Amt. of real estate in Ogdensburg, viz., as per will of Chas. Hull, valued at 7,000 dolls.

“I have four lots in Escanaba as per deeds recorded, worth 3,000 dolls.

“ I have also an undivided one-half of 6 lots in the town of Ishpeming, worth 400 dolls, each, amounting to 2,400 dolls.

“Also with R. A.'Connolly I have an undivided one-third interest in 540 acres of Land in Delta Co., Mich., as per deeds recorded.

“Also I have an undivided one-half interest with S. H. Selden in 280 acres of land situated in Delta Co., Mich.

“Also 250 acres of land situated near Days River, Delta Co., Mich., valued at 5,000 dolls.”

(6) Extracts from letter of Dodge, manager of sawmill, to Connolly, August, 1867, as follows:

“The company will have to buy more land, as there are no more white pine trees on the place where O’Brien has been cutting all summer.”

Letter of Dodge to Connolly, dated September 2, 1867:

“I think Mr. Baldwin & Hull will go up to the mill tomorrow and go down to the camp and on the lines of the land to see what amount of trees you have there.”

Hull never recorded patents to any of this land. The patent to the land involved in the case under consideration (the Gordon case) was not recorded until November 2, 1876), two years after Hull’s death, and nearly two years after the purchase by Johnson. The patent for the land involved in the Drake case has never been recorded, and was not found among the- papers of Alfred Hull or produced by the defendants. At the time of the purchase by Isaac Johnson, there were no instruments of any character recorded in the office of the register of deeds for Marquette county, touching these lands, and the Johnson contracts were the first instruments of record in that office The record shows: That Baldwin, Connolly, and Hull all occupied official relations to the Chicago & Northwestern Railway Company; that that company was using in constructing bridges, ore docks, etc., a considerable amount of timber; and that they believed a profitable lumber and timber business might be done with the railway and the public generally. It shows that prior to the formation of the partnership, Baldwin and Connolly had purchased an engine and mill fixtures to the amount of $6,300, and that Hull’s available capital at the time that the partnership was entered into was only $1,500. The partnership contract itself shows Hull to have had a one-third interest. This partnership continued only until June, 1867, and it was dissolved by reason of the criticism visited upon Hull by his railway superiors by reason of the fact that he had purchased timber for the use of the company from himself. It shows, further, that Baldwin was familiar with the method of entering government lands on military land warrants. Further, that, after Hull’s retirement from the firm, he continued to purchase the timber manufactured by R. A. Connolly & Co., taken in part from the lands standing in his own name on behalf of the railway, upon one occasion going upon the lands and selecting the particular timber to be cut for the railway needs. Further, that he himself took one Hopkins, who was contemplating purchasing an interest in the concern, to one of the logging camps then in operation upon the lands, and introduced him to O’Brien as the one who would come there in charge, and Hopkins thereafter bought an interest in the firm; that later, when the Hartmans bought in, Hull had knowledge of the sale and continued to deal with the concern. The record further discloses that at this time the entire known value of the land in question consisted in its timber, and that Hull stood by and saw the land gradually divested of its value, purchasing the product for the railroad company without asserting any rights thereto. The contract between the Hartmans and Connolly and Johnson, which in terms described and dealt with the lands in question, was likewise made in his lifetime and recorded in the county of Marquette.

The defendants rely:

(1) Upon the fact that the record title stands in Hull’s name; (2) upon the tax receipt dated January 10, 1871, for the taxes of 1870, which was made out in the name of Alfred Hull and produced by the defendant; (8) the payment of certain taxes upon the lands by the estate of Alfred Hull, all made prior to the year 1888; and (4) declarations made by Hull in his lifetime which the defendants nlaim tend to show that Hull during his lifetime, and after his disposition of his interest in the copartnership, still claimed to be the owner of the lands in question.

It was the theory of the defendants that, by an agreement between Baldwin, Connolly, and Hull (as to which agreement there is no evidence in the record), the legal title to the lands entered in their individual names should be and remain in them as individuals, while the partnership had the right to remove the timber therefrom, and this theory seems to have been accepted by the learned circuit judge. His opinion is, in part, as follows:

“The complainants cannot claim that they have by direct proof shown any express agreement that the lands in question were partnership property. They seem to rely upon circumstances, dealings, and acts of the parties. In order to establish the fact, these circumstances, dealings, and acts should in convincing weight be the equivalent of an express agreement. In other words, they should be so clear and unequivocal that they would amount to proof of the fact. * * *

“It seems to us that, in order for the complainants to prevail here, it ought to appear:

“ (1) That the property was purchased with partnership funds for partnership purposes; and (2) that it was used by the partnership for its purposes.

“Both of these propositions should appear, and they should concur. Where the articles of partnership and the books of account fail to show the necessary facts, the inference that the lands held individually, or by partners as' tenants in common, were in fact partnership property, can only be drawn from facts capable by no possibility of any other reasonable construction than that the land was purchased with partnership funds for partnership purposes; and, if from the facts the inference may be reasonably against partnership ownership, that inference must bei adopted. * * *

“By the record title these lands were the individual property of Alfred Hull. That title could only pass from him by an agreement or contract of some kind. The complainants have failed to show such an agreement. No witness has been produced who testifies to any such understanding. The partnership agreement does not show any such understanding. It is silent as to any lands. The books of account do not show any such understanding. They are silent as to these lands. No dealing of the firm while Hull was a member shows such an understanding. No statement of any member of the firm to any third person of such an understanding is produced. It is not shown that this land was purchased with the firm’s money, nor that the firm paid the taxes at any time.”

In his conclusions and his application of the facts to the law, we believe that the learned circuit judge was in error. It is clear that no express agreement is necessary; but we are of opinion that it is not necessary that “ these circumstances and dealings should in convincing weight be the equivalent of an express agreement.” This is not the law. Whether or not land taken in the name of one or more partners is in fact partnership property always depends upon the intent of the parties and the understanding and design under which they acted. It is clear that an express agreement may show this intent; but it may also be established by an implied agreement. This implied agreement may be gathered by considering the general purpose of the parties, the nature of their business, and the manner in-which they have dealt with the property in question. See Lindsay v. Race, 103 Mich. 28 (61 N. W. 271), where this court said:

“ Whether landsheld in the nameof one partner or of both are to be deemed copartnership property is generally a question of intent to be gathered from the manner in which the members of the firm have dealt with them.”

In Way v. Stebbins, 47 Mich. 296 (11 N. W. 166), this court said:

“ The rule in this State has been well settled that property purchased with a design that it should become partnership property, and actually used in accordance with that design, must be regarded as firm assets.”

See, also, Richards v. Manson, 101 Mass. 482; Arnold v. Wainwright, 6 Minn. 358 (80 Am. Dec. 448).

In Ames v. Ames, 37 Fed. 30, the court said:

“And following the suggestions there made, it may be affirmed that no written agreement is necessary; that no parol express agreement even is necessary, for a court of equity to hold that real estate standing in the names of individual partners is partnership property, and it is enough if, from all the acts and conduct of the partners, the court can be satisfied that it was the thought and intent of the partners to treat it as partnership property. * * *

“ But it is said by counsel for defendants that the legal title was taken in the names, of the individual partners; that the fact that the conveyances were so made indicates the intent to make the property individual rather than partnership property; and that, in the absence of an express agreement, in order to establish an implied agreement that this property, whose title was thus located in the individual partners, was to be partnership property, the fact shown must be such as to be necessarily inconsistent with the intent to leave the ownership where the title deeds put it. I cannot agree with counsel’s view of the significance of the conveyances and the location of the legal title. * * * ”

In the same case the court quoted with approval the following from Morrison v. Mendenhall, 18 Minn. 232:

“A conveyance of real estate, or of an interest therein, must run to some person (a corporation being regarded in law as a person), and a partnership, as such, not being a person, conveyances of real estate for the use and benefit of a partnership have usually and aptly been made to the individual partners jointly, as tenants in common” — citing cases.

In Tidd v. Rines, 26 Minn. 201 (2 N. W. 497), the court said:

“As the legal title to real property can only be held by a person, or a corporate entity, which is deemed such in law, it follows that the conveyance in question vested no legal title or estate in the grantee therein named, because a partnership, as such, is not recognized in law as a person.”

As therefore, under the laws of Minnesota, a conveyance to the partnership was not the proper mode of transferring title, it would be strange if the conveyance to the individual partners carried with it that significance and potency which counsel for defendants claim. On the contrary, it seems to me the rule is, as heretofore indicated, that, in the absence of express agreement, no one matter is conclusive upon the question of intention; and that, from all the facts, the court is to deduce and determine the real intent of the partners. See, also, Waterer v. Waterer, 15 L. R. Eq. 402.

The court below said that it should appear:

“ (1) That the property was purchased with partnership funds; and (2) that it was used by the partnership for its purposes. Both of these propositions should appear, and they should concur. Where the articles of partnership and the books of account fail to show the necessary facts, the inference that the lands held individually, or by partners as tenants in common, were in fact partnership prop- ■ erty, can only be drawn from facts capable by no possibility of any other reasonable construction than that the land was purchased with partnership funds for partnership purposes.”

In Merritt v. Dickey, 38 Mich. 41, Chief Justice Campbell, at page 44, said:

‘ ‘ The law has always been settled in this State that real property which actually was designed to be, and which was in fact treated during the existence of the firm, as partnership assets, must be so regarded in equity, and the legal estate must be held by the heirs of a deceased partner as trustees for the equitable purposes of the firm.”

We are of opinion that it is not necessary to show that the partnership property was purchased with partnership funds. Land standing in the name of an individual partner may have been contributed by him as his portion or a part of his portion to the firm assets. The true method of determining, as between the partners themselves, whether land standing in the name of the individuals is or is not to be treated as partnership property, is to ascertain from their conduct and course of dealing the understanding and intention of the partners themselves, which, when ascertained, should unquestionably control.

What was the understanding of the partners ? They needed land with timber upon it for the success of their enterprise. They were met at the outset with the fact that they could not enter those lands in the name of the copartnership. The lands selected had at the time no known value except the timber standing thereon. As to Baldwin and Connolly, there can be no doubt that they considered all the lands so entered as partnership assets. They purchased, or believed they purchased, from Hull his interest not alone in the mill, but in the lands. When they sold thereafter, they sold not alone an interest in the mill and the lands standing' in their individual names, but likewise an interest in the lands standing in Hull’s name, and finally, when Connolly and the Hartmans, who had purchased from Baldwin, sold to Johnson — still in the lifetime of Hull — they warranted title.not alone to the lands held by themselves, but likewise to the lands standing in the name of Hull. We do not think it can be said that “the books of account fail to show the necessary facts.” The books themselves at this late date could not be produced, and ifc is no more possible to say that they fail to disclose the necessary facts than it is to assert that they contain the necessary entries. That Hull’s understanding and intention was the same as that of his partners — about which there can be no doubt — we think sufficiently appears. He was the least able of any of the three financially to sustain his proportion of the burden. The partnership contract shows that:

“The proceeds of lumber sold, after reserving the cost of sawing and furnishing, are to be applied, first, to the payment of bills,” etc.

His letter of August 30, 1886, to A. R. Connolly, contains the following:

“ I shall keep the work moving in your absence. There is one fact that is plain to be seen: If the concern is made to pay for itself, we have got to put our shoulders to the wheel.”

He (Hull), as before noticed, stood by and saw the lands to which he had legal title divested of their value, and purchased the product thereof. He knew of the conveyance of Baldwin to Oliver, and of Baldwin to the Hartmans, which dealt not alone with the timber, but with the lands themselves, to which he had title. In 1871, four years after he had left the copartnership, in appending a list of his assets to his will, he did not include the lands in question, although he did include 540 acres of land in Delta county, an undivided one-third interest in which he owned with R. A. Connolly, and he did include a note of Baldwin and Connolly for $560.38, which he had received for his interest in the copartnership. The fact that he omitted to include these lands is conclusive in the mind of the court as to his understanding. It cannot be said that it was an oversight, because he included other lands which he owned with Connolly at the time. TTia attention thereby being directed to his relations with Connolly and their joint holdings, and by the mention of the note received from Connolly and Baldwin for the purchase of his interest in the copartnership, his attention was particularly drawn to the partnership enterprise. His failure to include the lands in question in this suit therefore is equivalent to a declaration on his part that he had no interest therein.

A further significant fact is that in the final account of his estate the lands are not included, although the schedule attached to the final account contains 29 descriptions, and recites that it is a schedule of the real estate belonging to the estate of Alfred Hull, deceased, remaining undisposed of and subject to the order of the court. Opposed to this mass of evidence is the fact that the legal title stands in the name of Alfred Hull, and that the defendants produced a tax receipt for the year 1870 in his name. No testimony is introduced tending to show under what circumstances Hull paid the taxes, or whether in fact he did pay them. His business relations with Baldwin and Connolly appear to have continued to be of an intimate character even after the dissolution of the partnership, and, as shown by his will, he was interested with Connolly in other lands. His estate continued to pay taxes on the lands for some years, but discontinued payment prior to 1888. His declarations made after the dissolution of the partnership, relied upon by the defendants, as to his continued ownership of the lands, when carefully examined, do not necessarily refer to the lands in question. He owned other lands in the vicinity referred to, and in making the statements relied upon may have had those in mind. x In any event, they must be regarded as self-serving in character, and as such are entitled to little consideration from the court.

We think the case at bar should be considered, on the one hand, as if Baldwin and Connolly were the complainants, and, upon the other, as if Alfred Hull were the. defendant. The complainants hold the title of Baldwin and. Connolly, and the defendants rest upon the title of Alfred Hull. This being true, we are of opinion that the learned circuit judge, in relying upon the cases of Reynolds v. Ruckman, 35 Mich. 80, and Hammond v. Paxton, 58 Mich. 393 (25 N. W. 321), was in error. In each of those cases the rights of third parties, strangers to the copartnership, were involved; whereas, in the case at bar, as above intimated, it is the rights of the partners themselves, as between each other, we are called upon to determine.

It is clear to the court that, if Alfred Hull himself were standing as the defendant here asking affirmative relief at the hands of the court against these complainants, as the defendants at bar do, he would, under the state of facts set forth, be held to be estopped. While it is true that in this State title to real estate cannot be passed by estoppel (see Hayes v. Livingston, 34 Mich. 384 [22 Am. Rep. 533]), and such a defense cannot be relied upon in an action at law, nevertheless in equity the rule is different.

In Hayes v. Livingston, supra, Chief Justice Cooley said:

“ Equity may always compel the owner of the title to release it where that is the proper redress for a fraud committed by him in respect to the title. * * * And when one asserts that the owner of land ought to surrender it to him because of the owner’s fraudulent acts and conduct, it is manifest that his claim is only an equitable claim, set up and asserted against the legal claim. The one has the legal title, and the other seeks to overthrow it by providing a superior equity. This he may be able to do in a court of equity; but we cannot admit that at law the legal title is not entitled to prevail.”

Again, in Moran v. Palmer, 13 Mich. 367, the same judge said:

“It is a well-settled principle of equity that if a man, having a title to an estate which is offered for sale, knowingly allows another to sell it to a purchaser who supposes the title to be good, without, at the time, asserting his title, he shall be bound by the sale, and neither he nor his privies shall be allowed to dispute its validity ” — citing many authorities.

After a careful examination of all the evidence in the record, we are of opinion: That the complainants show by a fair preponderance of the evidence that the lands in question, although entered in the name of Alfred Hull, were in fact always considered by him and his partners as partnership property; that they were dealt with during the lifetime of Hull, with his knowledge, as partnership property; that they were regarded by him, when he was engaged in so solemn an act as preparing his last will and testament, as belonging to his associates, and not to himself ; and that they should now be so treated.

The decree of the court will be reversed, and a decree will be entered in this court in accordance with the prayer of the bill of complaint. A decree will likewise be entered in this court in the second case upon the footings of this opinion, in accordance with the prayer of the bill of complaint.

Grant, Montgomery, Hooker, Moore, and McAlyay, JJ., concurred with Brooke, J.

Ostrander, J.

(concurring). I concur in the conclusions announced in the opinion of Mr. Justice Brooke. I base concurrence, mainly, upon the terms of the articles of partnership and the nature of the business contemplated. The business was sawing and selling lumber. Logs were required for sawing. They had to be, and Were, acquired after the articles were executed. Whether they were bought from individuáis, or were cut from lands, they had to be in some way paid for just as the sawmill and fixtures had to be paid for. I can refer that provision in the articles which requires that each partner shall ‘ ‘ pay one-third of the whole cost ” to no particular item of expenditure. It was operative during the existence of the partnership, and, used as it is in connection with “losses,” cannot be said to mean merely the cost of the mill. Presumptively, in equity, as at law, the holder of the legal title owns the land. It is established that these partners made separate entries or purchases of land, and it may be safely assumed that the lands entered by each were not of equal value — did not involve the expenditure of the same amount of money. There was, however, but one purpose in buying them, and it is not easy to understand how the cost of the principal adventure could be shared equally and the profits divided equally, pursuant to the agreement, unless each paid one-third of the cost of the lands. I think it must be presumed that the cost of the land in question was paid by the partnership.

The cases of Reynolds v. Ruckman, 35 Mich. 80, and Hammond v. Paxton, 58 Mich. 393 (25 N. W. 321), are not controlling for the reason that defendants did not acquire title in reliance upon the records of title.

Blair, C. J., concurred with Ostrander, J.