text:
    BOARDMAN v. SAUNDERS.
    Dower — Ejectment to Establish.

       Plaintiff was entitled to dower of the value of §8.80 in a city lot. Before bringing suit, her attorneys examined the record! ascertained that defendants S. and M. owned the record title j that defendant B. was their tenant in possession. They asked S. and M. if they were still the owners of the title. S. and M gave evasive answers. In fact, S. and M. had conveyed their title to M.’s husband some months before, but the deed had not been recorded. Held, that this was a sufficient claim of title to maintain ejectment, and that S. and M. were liable for the value of the dower.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted April 2, 1901.
    Decided April 16, 1901.
    Ejectment by Mary L. Boardman against Louis B. Saunders, Julia E. R. McCarthy, and Charles H. Blow. From a judgment for defendants, plaintiff brings error.
    Reversed.

      C. H. Gleason, for appellant.

      Burlingame & Belden, for appellees Saunders and McCarthy.

         Head-note by Grant, J.

   Grant, J.

This is a suit in ejectment to recover dower in a city lot. By stipulation it was conceded that plaintiff was entitled to dower, and that its value was $8.20. At the time suit was brought, the title of record was in defendants Saunders and McCarthy. Defendant Blow was a tenant in possession. The defense of Saunders and McCarthy was that they had deeded the land to one Joseph P. McCarthy, the husband of defendant Julia, before suit was brought. The deed was not recorded until about three months after suit. Plaintiff was only made aware of this deed upon the trial. Blow had been a tenant of his co-defendants for some time, and plaintiff had no information or knowledge that he had attorned to Mr. McCarthy. For some time prior to bringing suit, negotiations had been pending between plaintiff’s attorneys and the defendants Saunders and McCarthy in regard to a settlement of plaintiff’s claim of dower. Just before commencing suit, one of plaintiff’s attorneys inquired of both Saunders and Mrs. McCarthy if there had been any change in the title. The attorney testified that Mr. Saunders told him they still owned the property. Mr. Saunders testified:

“I never told him I owned the property or anything. In fact, I did not tell him anything regarding it. He asked me a number of questions, but I answered them without saying anything.”

Mrs. McCarthy testified that the attorney “asked me some questions^ but I responded that I did not care to talk about the matter.” The attorney testified that he asked Mrs. McCarthy if there had been any change made in the estate in any way, and she replied she did not care to say anything about it. This was a sufficient assertion of title upon which to base the action of ejectment. Plaintiff found them the owners of the record title. When asked, in substance, if they still owned it, they declined to answer. It was their duty then to speak. Whether they should have entered a disclaimer in the suit we need not determine. The case falls directly within the case of Hoyt v. Southard, 58 Mich. 432 (25 N. W. 385). In that case the defendant had placed a tax deed upon record, had never been in possession, and testified that he did not claim any interest. We there said:

“We think that the recording of a tax deed of this land, even if other lands were included in the same deed, would be sufficient claim of title to warrant the bringing of ejectment against the grantee named in such tax deed, unless he notified the person holding the original title of his disclaimer of any interest in the land before suit brought, and took the necessary steps to disaffirm the apparent claim of title that a recorded deed asserts.”

If the owner of a tax title should disclaim under the circumstances of that case, certainly the owners of the original title should disclaim when they are expressly asked if they are still the owners, and know the purpose of the inquiry. It is immaterial that the conveyance by the defendants Saunders and McCarthy was made in good faith, and for a valuable consideration. The judge should have found, as requested, that defendants Saunders and McCarthy were liable.

The judgment will be reversed as to them, and entered in this court for the plaintiff against the three defendants, with the costs of both courts against the defendants Saunders and McCarthy.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    UNITED STATES HEATER CO. v. APPLEBAUM.
    Contracts — Offer and Acceptance — Sale—Delivery.
    Plaintiff forwarded for defendant’s written acceptance a contract providing that defendant should deliver to plaintiff, “ as required during the year 1899,” a quantity of scrap iron. Defendant replied that, in accepting the offer, he could not agree to commence to furnish the iron before April 1st, but that, if this should be satisfactory, he would sign the contract. Plaintiff thereupon signed and forwarded a contract identical with the original, except that delivery within one year from April 1st was stipulated. Held, that, in the absence of assent by defendant to the three months’ extension in the period of delivery, no contract was effected.
    Error to Wayne; Donovan, J.
    Submitted April 2, 1901.
    Decided April 16, 1901.

      Assumpsit by the United States Heater Company against Isaac Applebaum for the breach of a contract of sale. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      George W. Radford, for appellant.

      Adolph Sloman, for appellee.
   Montgomery, C. J.

This is an action to recover damages for the breach of an agreement to deliver 700 tons of scrap iron under a contract claimed to exist between the parties. The learned circuit judge was of the opinion that no contract was shown, and directed a verdict for the defendant. The sole question in the case is whether the minds of the parties ever met upon the contract averred in the declaration. The contract averred is a contract to deliver, as required by plaintiff, between April 1, 1899, and April 1, 1900, 500 to 700 tons of machinery scrap No. 1, at the price of $8.15 per ton. The plaintiff’s evidence disclosed that prior to January 20, 1899, a conversation was had between plaintiff’s manager and defendant by telephone; that, following upon this conversation, a letter in the following terms was addressed to defendant:

“Detroit, January 20, 1899.
“Mr. Isaac Applebaum,
“City.
“Near Sir: You may enter our order for a quantity of from 500 to 700 tons of No. 1 machinery cast scrap, to be delivered as required during the year 1899, unloaded from our siding, at a price of $8.15 per ton. Terms: 30 days, with the privilege of 90 days’ additional time by including interest. You agree to furnish this quantity of iron to us on the foregoing terms, and to promptly fill all our orders. Th'e grade of this scrap iron is fully guaranteed by you, with the understanding that you are to Remove, free of expense to us, any which we may be obliged to reject at any time.
“Yours very truly,
“United States Heater Company,
“ Henry T. Cole, Sec’y and Treas.
“Accepted,...........”

This was accompanied by a note requesting defendant to write his acceptance and return. On the 28th of January the defendant wrote plaintiff, acknowledging the receipt of its letter, and adding:

“ I will say to you that by accepting your offer I cannot agree to commence to furnish you the amount of iron before April 1st, ’99, as I have a good many orders and contracts ahead of yours. * * * If it is satisfactory to you, you will kindly fill out your blank, and mail it to me, and I will sign same.”

In reply to this, plaintiff, on February 1st, wrote defendant the following letter:

“Detroit, Mich., February 1, 1899.
“Mr. Isaac Applebaum,
“City.
“ Dear Sir: We have your letter of the 28th referring to contract, and inclose new blank on the basis you desire. We have simply made the contract read, ‘ One year from April 1st,’ instead of commencing with January. We do this to meet your wishes, although we understand that you will undoubtedly be able to furnish us such scrap as. we may require between this date and April 1st. We-estimate that we shall have to have in the neighborhood of 100 tons. You can undoubtedly work this in for us. Kindly sign and return this contract to us at once.
“ Yours very truly,
“United States Heater Company,
“Henry T. Cole, Sec’y and Treas.”

With this letter was inclosed another signed contract,, reading as follows:

“Detroit, February 1st, 1899.
“Mr. Isaac Applebaum,
“City.
“Dear Sir: You may enter our order for a quantity of from 500 to 700 tons of No. 1 machinery cast scrap, to be-delivered as required between April 1st, 1899, and April 1st, 1900. The price to be $8.15 per net ton, unloaded from our siding. Terms: 30 days, with the privilege of 90 days’ additional time by including interest. You agree to furnish this quantity of iron to us on the foregoing terms, and to promptly fill all our orders. The grade of this scrap iron is fully guaranteed by you, with the understanding that you are to remove, free of expense to us* any which we may be obliged to reject at any time.
“Yours very truly,
“United States Heater Company,
“Henry T. Cole, Sec’y and Treas.
“ Accepted,...........”
On February 4th defendant replied as follows:
“Detroit, Mich., February 4, 1899.
“United States Heater Company,
“ City.
Gentlemen: Yours of the 1st inst. received. In reply, would say that during that time up to date I have been looking around to see -what I could do for you regarding the supply of scrap. Up to date I did not succeed; therefore I cannot sign the contract, but will let you know about four or five days the best I can do.
“Hoping to be satisfactory, I remain,
“Yours truly,
“Isaac Applebaum.”

Some further correspondence was had between the parties, — plaintiff insisting that a contract existed, and demanding its fulfillment; defendant refusing to recognize any contract as existing.

The direction of the circuit judge was right. Assuming, as is contended by plaintiff, that defendant’s letter of January 28th amounted to an acceptance of plaintiff’s offer, if modified so as to admit of delivery beginning April 1, 1899, plaintiff’s reply proposition, providing for a delivery ending April 1, 1900, involved an extension of three months beyond the period named in the original proposition, and gives the plaintiff the right to require the delivery of scrap iron during these three months. This makes a different contract than that at first proposed, and such a proposition amounts to a refusal to accept the proposition of defendant. made in his letter of January 28th. The question is ruled by Minneapolis, etc., R. Co. v. Columbus Rolling-Mill Co., 119 U. S. 149 (7 Sup. Ct. 168). See, also, Wilkin Manfg. Co. v. H. M. Loud & Sons Lumber Co., 94 Mich. 158 (53 N. W. 1045), and cases cited.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    BOARD OF SUPERVISORS OF KENT COUNTY v. BOARD OF SUPERVISORS OF MECOSTA COUNTY.
    Criminal Law — Change op Venue — Costs — Liability op County — Directing Verdict.

      1. Where the venue in a criminal case is changed from one county to another for trial, the latter county, in recovering expenses against the former, is limited to the fees and expenses allowed by law. Therefore the latter can recover against the former only the statutory fee of two dollars per day for jurors, although it may have allowed them four dollars per day. Neither can. the latter recover for a stenographer’s fee, where the stenographer is compensated by an annual salary.
    2. Where, in directing a verdict, the circuit judge gave a wrong reason for a correct result, the judgment will not be disturbed.
    Error to Mecosta; Palmer, J.
    Submitted April 2,1901.
    Decided April 16, 1901.

      Assumpsit by the board of supervisors of Kent county against the board of supervisors of Mecosta county for expenses incurred in the trial of a criminal case under a change of venue. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Rodgers, McDonald & Minor, for appellant.

      A. B. Cogger, for appellee.

       Head-notes by Grant, J.

   Grant, J.

The venue in a criminal case was changed from the county of Mecosta to the county of Kent, and there tried. After the trial, plaintiff presented to the defendant a bill for .expenses amounting to $882.75. The defendant allowed the bill at $542.75, and sent to the plaintiff a cheek for that amount. Plaintiff returned the check, and instituted this suit to recover the entire amount. Included in the bill rendered was a charge of $4 per day for the jury, and a stenographer at $100. The defendant allowed the jury at $2 per day, and struck out the stenographer’s fee. Neither of these rejected items was chargeable against the defendant. The statutory fee of jurors is $2 per day, and no more could be legally paid. The stenographer of Kent county is employed at a yearly salary, and the county was put to no extra expense for his employment. The court did not, perhaps, give the right reason for directing a verdict, but the reason is immaterial where the verdict and judgment are correct.

The court directed a verdict of no cause of action, and that the amount of $542.75 be paid into court, subject to the order of Kent county. The proper course would have been to direct a verdict for plaintiff for $542.75. The judgment will be reversed, and the case remanded, with instructions to the circuit court to enter judgment for that amount, unless it has been paid into court subject to plaintiff’s order. Defendant will recover costs.

The other Justices concurred.


author: Montgomery, .C. J.

text:
    AUDRETSCH v. HURST.
    1. Service of Prooess — Appearance—Waiver.
    Where defendant, when called on to plead before a commissioner in summary proceedings, moved to quash on the ground of insufficient service, but later, on such motion’s being overruled, while professing to appear specially, entered a plea and demanded a jury trial, which was accorded him, any defect in the service was waived.
    2. Mortgages — Statutory Foreolosure — Redemption —Extension of Time — Possession—Summary Proceedings.
    An agreement entered into between the purchaser of premises at a statutory mortgage foreclosure and the mortgagors, whereby the period of redemption was for a valid consideration extended six months, such consideration to be retained as compensation for the use of the land in case of a failure to redeem, and it being expressly stated that the rights, duties, and liabilities of the parties should remain the same, operates merely to extend the time for redemption as contemplated by the parties, and does not preclude the purchaser from proceeding summarily to obtain possession at the end of the extended time.
    Error to Wayne; Donovan, J;
    Submitted April 3, 1901.
    Decided April 16, 1901.

      Certiorari by Henry J. Audretsch and Mary Audretsch against William A. Hurst, circuit court commissioner of Wayne county, to review the action of the commissioner in certain summary proceedings for the possession of land. From a judgment for defendant, affirming a judgment of ouster, plaintiffs bring error.
    Affirmed.

      Charles T. Wilkins, for appellants.

      Edward A. Barnes and U. Grant Race, for appellee.
   Montgomery, .C. J.

This is certiorari to review a proceeding instituted before a commissioner to obtain possession of lands purchased on a statutory mortgage foreclosure. The property was sold by the sheriff to one E. Merton McBrier for $2,241.29. The period of redemption expired December 21, 1898. On the 19th of December, 1898, the parties entered into an agreement by the terms of which, in consideration of the payment of the sum of $200 to McBrier, he agreed that the Audretsches might redeem the premises from the sale at any time on or before June 18th; that, in case of failure to redeem, the $200 paid should be retained as compensation for the use of the land; that, in case of redemption, the sum required to be paid should be $2,303.97, and interest at 7 per cent, from December 18, 1898. It was distinctly stated in the agreement that the rights, duties, and liabilities of the parties should remain the same as though the period of redemption provided by statute had expired the 18th day of June, 1899.

Plaintiff in error, when called upon to plead before the commissioner, moved to quash on the ground of insufficient service. The court refused to quash. Thereupon, while professing to appear specially, he entered a plea, and demanded a trial by jury, which was accorded him. We think this must be deemed a waiver of any defects in the service, if there were any.

The meritorious question is whether the purchaser lost his right to proceed summarily by agreeing to extend the time for redemption for a period of six months. There ■are no equities in favor of the mortgagors. The agreement was for their benefit and their interest. It is distinctly shown that there was no intention of waiving the mortgage foreclosure, or of conferring any new rights upon the mortgagors. In terms, the agreement provided that the rights, duties, and liabilities of the. respective parties should remain the same. The effect was to suspend the purchaser’s right for six months. No good reason is shown why such an agreement is not valid. To hold it invalid would have the' effect to preclude mortgagors from making terms by which an extension of time in which to redeem could be secured.

The plaintiff in error relies upon the case of Dodge v. Brewer, 31 Mich. 227, and Ramsdell v. Maxwell, 32 Mich. 285. Neither of these cases supports the contention of the plaintiff in error. In Dodge v. Brewer it is stated that “both parties understood that the foreclosure was not insisted on, and the proofs show that it was . superseded and made abortive.” In the present case it was distinctly understood that the foreclosure was insisted upon, and the only modification of the rights of the parties was a suspension of the purchaser’s rights for a period of ¡six months. In Ramsdell v. Maxwell the new bargain .between the parties was in litigation in another chancery suit, and it was held that it was not proper to issue the writ of possession under the circumstances of that case. In Cameron v. Adams, 31 Mich. 426, it was held, in a case of peculiar hardship, that where, after the sale, a payment had been made on the mortgage, if no intention to waive foreclosure appeared, a court of chancery could not relieve from the foreclosure. In the present case it is •perfectly clear that there was no purpose to waive the foreclosure.

We think the circuit judge reached the correct con■clusion, and the judgment of the circuit court, affirming that of the commissioner, is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SARTWELL v. YOUNG.
    1. Appeal — Conclusiveness oe Record.
    Where, in a chancery appeal, the bill as set forth in the record states a cause of action, a contention that it did not do so originally, but has been changed since the hearing, cannot be considered, as the court is governed by the record as returned
    2. Deeds — Bill to Set Aside — Lease—Estoppel.
    Where the owner of premises, after conveying the same, agreed to pay rent, without prejudice to her rights, pending the hearing of a suit to have the conveyance set aside, the continued occupancy and payment of rent will not estop her from asserting title in herself as against the lessor.
    3. Vendor and Purchaser — Possession—Notice.
    Whether the continued possession of a grantor of lands is sufficient to charge a purchaser from her grantee with notice of her rights, — queere.
    Appeal from Kent; Perkins, J.
    Submitted April 3, 1901.
    Decided April 16, 1901.
    Bill by Jennie Sartwell against William R. Y oung, impleaded with Arthur Brace and Charles Stewart, to set aside certain deeds. From a decree for complainant, defendant appeals.
    Affirmed.

      Nathan P. Allen and E. C. Watkins, for complainant.

      Everett D. Comstock, for defendant.
   Moore, J.

The complainant was the owner of a house and lot in Grand Rapids, which she deeded to Charles Stewart November 7, 1899. Stewart deeded the house and lot to defendant Young November 24, 1899. At the time the last-mentioned deed was made, the complainant was still in possession of the premises, and Young knew she was in possession. This suit was begun to have both deeds set aside. The complainant claimed that she was induced to make the deed to Stewart for a deed of 40 acres of land in Montmorency county, which was represented to be heavily timbered with beech and maple timber, when in fact it was worthless pine-barren plains. A decree was made in her favor. Defendants Brace and Stewart do not appeal.

•The defendant Young urges several reasons why the decree should not stand. One of them is, the bill of complaint does not set forth a cause of action. The brief of counsel states the original bill of complaint has been changed since the hearing of the cause in the court below. No motion has been made for a correction of the record. The bill of complaint accompanying the record signed by' the circuit judge states a cause of action, and we must be governed by the record as returned.

It is claimed complainant leased the premises of defendant Young, and thereby assumed the relation of his tenant, and is estopped from questioning his title. This claim is based upon a lease dated February 5, 1900, signed, “Jennie Sartwell, by N. P. Allen, Her Attorney,” which lease is not signed by defendant Young at all. At the time this paper was given, this litigation was pending. Mr. Watkins testified .that Mr. Goodell, acting for defendants, was proposing to eject the complainant from the property and turn her into the street; that she at that time was very poor, and was sick and suffering from a stroke of paralysis, and that common humanity should prevent her being turned into the street, and that he advised that she pay rent from the time of the dissolution of the injunction, pending the hearing of the case, and that it was to be without prejudice to her rights in the case; and that was the arrangement. The hearing was had in this case in open court, and began April 24, 1900. It is impossible to believe, from the testimony and the action of the parties, that any of them supposed the relation of landlord and tenant was created by what was done in relation to Mrs. Sartwell remaining in the house pending this litigation. Mrs. Sartwell did not go into possession by virtue of the lease. She was already in possession, asserting title in herself, and it was distinctly agreed she was not to waive her right to do so by what was done. We do not think she is estopped by what was done.

On the part of the complainant it is claimed that, because Mr. Young knew the complainant was in possession of the premises, he cannot be considered a bona fide purchaser ; that the following excerpt from Rood v. Chapin, Walk. Ch. 79, disposes of this case in favor of complainant: “Where a person purchases premises in possession

of another person, and he is aware of that fact at the time he purchases, that is sufficient notice to him of the right of the person in possession, and he must take the premises subject to all equities existing between his grantor and the person in possession,” — citing, also, McKee v. Wilcox, 11 Mich. 358 (83 Am. Dec. 743); Disbrow v. Jones, Har. Ch. 48; Norris v. Showerman, 2 Doug. 16; Woodward v. Clark, 15 Mich. 104; Fisher v. Fobes, 22 Mich. 454; Russell v. Sweezey, Id. 235; and other cases. It is insisted by defendant the case is not controlled by the- cases cited by complainant, but, inasmuch as the complainant is “the immediate grantor of appellant’s predecessor in title, when she delivered her deed to her grantee she parted with her right to possession, and, when appellant found that deed of record, he was justified in assuming that such possession was consistent with, and not adverse to, her recorded conveyance,” — citing Bloomer v. Henderson, 8 Mich. 404 (77 Am. Dec. 453), and other cases. For the purposes of this case, it is not necessary to attempt to pass upon the claims of counsel. When one examines the record carefully, and especially the testimony of Mr. Young, taken in connection with his conduct subsequent to his taking the deed, and the attitude of the three defendants towards each other all through this litigation, it is impossible to escape the conclusion that he was not a bona fide purchaser of this property, but that all three defendants were acting together.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    GOEBEL v. GROSSE POINTE WATERWORKS.
    Water Rates — Reasonableness.

       Complainant’s house and grounds were piped with 1-J-inch pipe. He put a 2-inch connection into defendant’s main, under a verbal promise that his rate would be reasonable. Soon after, the defendant fixed rates based upon the size of the connection. Held, that the rate was reasonable, and that complainant must pay according to the size of his connection rather than the size of his pipe at some point beyond the connection.
    Appeal from Wayne; Carpenter, J.
    Submitted Apri 4, 1901.
    Decided April 16, 1901.
    Bill by August Goebel against the Grosse Pointe Waterworks to enjoin defendant from cutting off complainant’s supply of water, and to determine a reasonable rate therefor. From a decree for complainant, defendant appeals.
    Reversed.
    The defendant is a corporation organized in 1890, under the laws of this State, for the purpose of supplying water to the inhabitants of Grosse Pointe. Grosse Pointe is mainly occupied for summer residences by wealthy people of Detroit. Complainant’s premises have a frontage of 150 feet on Jefferson avenue, and extend 1,100 feet to Lake St. Clair. His residence stands about 90 feet from the lake. Prior to 1890, each resident had supplied his ■own water by windmills or steam pumps. This was unsatisfactory, both on account of smoke and expense. In September, 1889, 18 of the residents, for the purpose of establishing waterworks, entered into an agreement to pay for three years the sum set opposite their respective names for a supply of water from the proposed waterworks. These sums varied from $100 to $300. The waterworks were established, and the sums paid in accordance with said agreement for the period of three years. These sums exceeded the rates that would be charged based upon the size of connections with the main. Complainant was not one of those subscribers, but in 1893 he made connection with the main under a promise from Mr. Newberry, the treasurer of the company, that his rate would be reasonable. Shortly after complainant’s connection with the main was made, the company fixed the following water rates: “J-inch connection, $18 per year; -J-inch connection, $25 per year; 1-inch connection, $50 per year; 1 J-inch connection, $75. per year; 2-inch connection, $100 per year.” This rate applied to all consumers alike, regardless of the time their residences were occupied. A few occupied their residences all winter, while the most were occupied only during the summer. Complainant was informed by the engineer of the defendant that he must make his own connection. He employed some men from the city waterworks to do so. They put in a 2-inch connection. Each resident had piped his grounds and buildings with pipe of various sizes, running from a half inch up to 2 inches.- Complainant had put in 1 J-inch pipe. From 12 to 18 inches from the connection, the 2-inch pipe was connected, with a 1 J-inch pipe. Complainant was charged at the rate of a 2-inch connection. He declined to pay. The defendant threatened to cut off his water, whereupon he filed this bill to restrain the threatened action of the defendant, and to have the court determine the reasonable rate that he should pay. The court below found that he should pay for 1 J-inch connection, rather than a 2-inch connection, upon the theory that he received only the quantity of water that would pass from a lj-inch connection.

      Edwin F. Conely and Orla B. Taylor, for complainant.
    Wells, Angelí, Boynton & McMillan, for defendant.

       Head-note by Grant, J.

   Grant, J.

{after stating the facts). We think the court was in error. The rates established are not sufficient to pay the expenses of the company and the interest on its bonded indebtedness. Several of the consumers voluntarily pay $1,450 per year in excess of the established rates in order to keep the works running. Should this be discontinued, an increase in the rates would be required. The complainant has failed to establish the fact that his rate is unreasonable. The court below found that the scale of prices was not too high, as under the scale it made no money.

Whether more water would be forced through an inch and a half pipe with a two-inch connection than an inch and a half connection does not appear. The quantity forced through a pipe depends, not only upon the size of the pipe, but upon the pressure to which the water is subjected.

But, aside from this, we think the defendant possessed the right to fix the rates according to the size of the connection. A consumer cannot defend against this rate upon the ground that at some distance from the main connection his pipe is reduced to a less size than that of the main connection. When complainant raised the question with defendant, he was promptly notified that he could make a 1-J-inch connection, which would cost but a trifle, in which event he would be charged only at that rate. It would be unreasonable to hold that defendant must ascertain that somewhere between the connection and the faucets his pipe is reduced from.a larger to a smaller size, and then charge a rate according to the smaller size. The connection with the main is the logical place for determining the rates at which consumers should be charged. It is no hardship for consumers to comply with this requirement, and put in a connection to correspond with the size of the pipe.

The decree is reversed, and bill dismissed, with the costs of both courts.

The other Justices concurred.


text:
    CITY OF GRAND RAPIDS v. VAN ROSSUM.
    Negligence — Excavations in Street — Indemnity.

       Defendant, a plumber, gave bond to the city of Grand. Rapids-to save it harmless from excavations made by him in the streets when making connections with gas, water mains, etc., and to fill and properly cover the excavations after his work was completed. He dug a trench across a street, and, instead of covering it when his work was completed, he made an arrangement with one Owens, who was digging a sewer' lengthwise of the street, by which the latter agreed to take-care of the excavation in the line of the sewer, and properly protect it. Defendant did not notify the city of this arrangement, or obtain permission to turn the excavation over to-Owens. Owens failed to properly guard the opening. A person fell in, was injured, and recovered damages against-the city. In a suit upon defendant’s bond, held, that he was primarily liable, and could not defend by showing his agreement with Owens, although Owens had given an indemnity bond to the city.
    Error to superior court of Grand Rapids; Newnham, J..
    Submitted April 4, 1901.
    Decided April 16, 1901.
    Debt by the city of Grand Rapids against Joseph Van Rossum, principal, and Peter Van Rossum and Cornelius Van Strein, sureties, upon a plumber’s bond. Prom a. judgment for plaintiff on verdict directed by the court,, defendants bring error.
    Affirmed.
    The defendant Joseph Van Rossum is a licensed plumber in the plaintiff, city. He gave a bond conditioned to hold the city harmless from all loss or damage that should “be occasioned in any way by accident or the want of care on the part of the said Joseph Van Rossum in the prosecution of any work he may do under and by virtue of his said appointment, * * * or that may be occasioned by reason of any opening by him made or caused to be made in any street, lane,” etc., “and shall promptly at the proper time replace and restore the street or pavement over such openings to as good state and condition as the same was previous to and at the time of opening the same.” On the 1st day of August, 1898, he dug a trench across Ottawa street for the purpose of making a water connection. By reason of this excavation being left unprotected, one Elizabeth Monje fell into it, was injured, sued the city, and recovered damages. Monje v. City of Grand Rapids, 122, Mich. 645 (81 N. W. 574). Defendant had completed the plumbing work, and had filled the ditch, except in the line of a sewer which was being dug lengthwise to Ottawa street by one Owens under a contract with the city. Owens had given a bond similar to that of defendant, to hold the city harmless. Owens’ trench would cross the excavation made by the defendant, and he requested the defendant not to fill the ditch where he would cross. Defendant testified that he' made an arrangement with Owens by which Owens assumed control of the trench, and promised to protect it; that, before the accident happened, Owens had reached the excavation made by the defendant; that Owens failed to protect the place, and that by reason of his failure Mrs. Monje was injured. The court directed a verdict for the plaintiff.

      R. M. Ferguson {James J. Danhof, of counsel), for appellants.

      Rant K. Salsbury, for appellee.

       Head-note by Grant, J.

   Grant, J.

{after stating the facts). Defendant made the excavation. Under his bond with the city it was his duty to protect it when open, and to cover it up when his work was completed. He did not do it, but turned it over to Mr. Owens, with an agreement upon his part that he would protect it. Defendant fully understood his legal duty. He might have sought the proper authorities of the city, and relieved himself from liability by agreement with it to turn the excavation over to Mr. Owens. He did not, however, even notify the city of his arrangement with Owens. He was primarily liable. The city is under no obligation to ascertain whether defendant or Mr. Owens was liable, or to run the risk of determining what the contract was between defendant and Owens, and of thus falling between two stools. Plaintiff knew that defendant made the excavation; that it had not been filled; that it was left unprotected, in consequence of which the city was subjected to damage. Its right to look exclusively to defendant, who was primarily liable, is undoubted. If defendant has any remedy, he must seek it against Owens.

Judgment affirmed.

The other Justices concurred.


text:
    BLEDSOE v. GRAND TRUNK RAILWAY CO.
    Negligence — Injury to Trespasser — Infants.

       Plaintiff’s decedent, a boy 10£ years old, went, uninvited, and contrary to notices posted, into the defendant’s railroad yard, where there were 18 tracks, crossed the tracks, went to a slip where the car ferries landed, crawled under a fence, was struck by a lever used in lowering and raising the apron to the slip,' and was killed. Held, that defendant was guilty of no negligence.
    Error to Wayne; Waite, J.
    Submitted April 5, 1901.
    Decided April 16, 1901.
    Case by Samuel L. Bledsoe, administrator of the estate of Samuel Bledsoe, deceased, against the Grand Trunk Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The railroad yard of the defendant company extends from Brush street on the west to Hastings street on the east, a distance of 1,400 feet, and beyond. On the west end is the depot, with fences and gates, and employes stationed at the gates to prevent the ingress of those having no business with the railroad companies. On the north side are a high brick, wall and buildings extending the entire distance from Brush to Hastings street. There is an entrance from Atwater street at Hastings street to these grounds. At this point are admitted teams and persons having business at defendant’s elevator, situated nearly opposite Hastings street. , The way from Hastings street to the elevator is a private way, owned by and used exclusively for the company and those having business with it. At the entrance from Hastings street a flagman is stationed, with instructions to warn off all those who have no business with the company. Upon the flagman’s shanty is a large placard reading as follows:
    “NOTICE.'
    “Railroad Grounds.
    “No Thoroughfare.
    “No Trespassing Allowed. “Dangerous.”
    The flagman was instructed to warn and keep strangers out of the premises. This yard is occupied by 18 tracks, and is the yard not only of the defendant, but of the Detroit, Grand Haven & Milwaukee and the Lake Shore Railway Companies. Switching is constantly going on, and the place is dangerous. A short distance south of the entrance at Hastings street another flagman is stationed, whose duty it is to warn people to keep off the tracks, and to flag trains coming into and going out of the station. At this point is placed another warning, the same as that above given.
    The defendant has two slips into which its transfer boats run, bringing passenger and freight cars across the river. These cars are pulled off the boats, drawn several hundred feet east, and then switched into the depot. There is no-provision for passengers to alight from the cars at these slips or to enter them. No one can have any business or-right there except the employés of the company. The apron to one of these slips is lowered by a chain wound around a drum, the chain being controlled by a lever about 9 feet in length, and inclosed by a railing about 30* inches high. The bottom of the platform upon which the lever is placed is between 1 foot and 18 inches above the surface of the ground. The inclosure is 20 feet square* surrounded by 4x4 scantling, with an opening on one side-about 18 inches wide, through which the man whose duty it is to turn the lever enters. The lever is fastened by a. chain when the apron is up. As the boat enters this slip, an employé on board the boat jumps upon the dock, enters-the inclosure, releases the chain at the proper moment, and the apron descends. As it descends, the lever moves round. Between the lever and the sides of the inclosure is a space of about 18 inches.
    Plaintiff’s decedent was a boy 10-|- years of age. His mother had sent him with a jug to get some water from a sulphur spring situated on the defendant’s grounds near its elevator. She did not know where the spring was. Where the boy entered does not appear, but probably he - entered either at Hastings street or at some point east of it. All that the record discloses is that he was seen in the railroad yard, coming from the elevator to this slip. The slip was 400. feet west of the elevator. On the day in question, a transfer boat loaded with passenger cars landed at the slip. The boy, evidently out of curiosity, went from the elevator down to this slip, and stood on or near-one of the tracks leading onto the boat. As the boat entered the slip, an employé jumped off, released the lever, and returned to the boat. The signal was then given to the engineer, who commenced to back his engine onto the boat. A person not in the employ of the company saw the boy and a man named Cos standing either upon or near the tracks, and called out “Look out!” Thereupon the boy, instead of stepping south, where he would have been safe, went to the west, crawled under the fence around the lever, was struck by the lever, and killed. His administrator seeks damages, alleging negligence on the part of the defendant. The court directed a verdict of no cause of action.

      D. Augustus Straker, for appellant.

      Geer & Williams {E. W. Meddaugh, of counsel), for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). The theory of the counsel for the plaintiff upon the argument was that it was the duty of the defendant to surround this platform where the lever was with a fence so high and tight that a boy could not get through, under, or over it. The defendant and the other railroad companies have many employes at work in this yárd and around these slips. The purpose of the fence was to serve as a protection to them. For that purpose it was amply sufficient, and no accident had ever occurred before. If it be assumed that the boy was permitted to enter this yard, — of which there is no evidence, — still there is no negligence shown on the part of the defendant. It is not shown that an employé of the defendant saw the boy. It was not to be anticipated that the boy, even though he were frightened by the cry of “Look out!” would run to the west, and crawl under this fence, rather than step back a few steps, where he would have been entirely out of danger. It was incumbent upon the plaintiff to show facts from whibh a duty to protect this boy, under the circumstances, would arise. He failed to do so.

Aside from this question, it is apparent that the defendant had done all that the law required to keep strangers out of this dangerous place. It is said that men were frequently seen upon the docks, fishing. It does not appear, however, who these men were, or, if they were strangers having no right there, that the defendant had any knowledge of it. They might have been employés or longshoremen, who were permitted there to do work in loading and unloading vessels, and therefore had business in the yard. This is not the case of a turntable left unprotected and unguarded in a position where boys would naturally resort to it. The case is within the rule of Trudell v. Railway Co., ante, 73 (85 N. W. 250); Rabidon v. Railway Co., 115 Mich. 390 (73 N. W. 386, 39 L. R. A. 405); Chicago, etc., R. Co. v. Smith, 46 Mich. 504 (9 N. W. 830, 41 Am. Rep. 177); Hargreaves v. Deacon, 25 Mich. 1.

Judgment is affirmed.

The other Justices concurred.


text:
    OLMSTEAD v. TAYLOR.
    1. Guardian and Ward — Testamentary Appointment — Mortgages — Payment—Authority .
    A person named in a will as testamentary guardian, who was not relieved by its terms from giving a bond as such, and who has neither filed a guardian’s bond nor secured letters of guardianship, relying solely on letters testamentary, cannot bind his wards by accepting payment of and discharging a mortgage owned by them, which formed no part of the testator’s estate.
    2. Same — Laches.
    Complainant in a bill attacking the validity of the payment' of a mortgage to one assuming to act as his guardian cannot be charged with laches for failure to bring suit for four years after attaining his majority, where he first learned of the mortgage a short time before filing the bill.

      Appeal from Chippewa; Streeter, J., presiding.
    Submitted April 5, 1901.
    Decided April 16, 1901.
    Bill by Eugene D. Olmstead and Minnie J. Olmstead against Henry H. Taylor and others to foreclose a mortgage. From a decree for complainants, defendants appeal.
    Affirmed.

      Albert B. Davidson (Henry F. Metzger, of counsel), for complainants.

      Warner & Sullivan, for defendants.
   Moore, J.

This is a bill filed for the purpose of fore- ’ closing a mortgage. The case was heard in July, 1900, and a decree rendered in fávor of complainants, from which decree the defendants have appealed.

Not many of the facts are in dispute. In September, 1887, Eugene D. Olmstead was 13 years old. Minnie J. Olmstead was of the age of 9 years. They filed a petition, by their mother and next friend, in the circuit court in chancery, for leave to sell their interest in certain.real estate. Their petition was granted, the land was sold, and the mortgage which is sought to be foreclosed in this proceeding was given back to them for its purchase price. The time of payment is somewhat ambiguously stated in the mortgage. It provides for the payment to the said minors of the amount of the principal “at the death of their mother, if they, or either of them, survive her, together with seven per cent, annual interest, payable on the first day of October of each year during the lifetime of said mother and said second parties,” etc. This mortgage was given October 10, 1887. The mother died June 24, 1888, leaving a last will, giving her property equally to her three children, and provided therein as follows:

“ I hereby nominate and appoint my son Amos Richard Olmstead to be my executor and administrator in all matters pertaining to a division of my estate, with full power to look after, manage, and collect all unsettled claims, of whatsoever nature, and to do any and all business relating to the management of said estate until the time of its division; and I hereby appoint my son Amos Richard Olmstead to be the guardian of my two minor children, Minnie Jane and Eugene Duncan.”

This will was probated. Amos Richard Olmstead gave a bond as executor, and letters of administration were issued to him. He never applied for letters of guardianship, never filed a bond as guardian, and no letters of guardianship were ever issued to him. It is the claim of defendant Taylor that in August, 1888, the mortgage was paid to Amos R. Olmstead, and by him, as guardian, discharged on the margin of the record. Mr. Amos R. Olmstead was not called as a witness.

Minnie J. Olmstead testified that, after the death of her mother, she lived with her brother Amos until she was 16 years old, when she went out to work for others, doing housework; that no money had ever been paid to her on account of this mortgage, and that she never heard of the mortgage until about the time she became 21 years of age, which was in 1899; and that she never knew her brother claimed to be her guardian. Her testimony was not contradicted. The other complainant testified that, after the death of his mother, he lived with his brother, Amos, about three years, going to school winters and working for him summers, and that he did not live with him afterwards; that he never received any portion of the mortgage, and never knew of its existence until about a year before the trial of the case, and never heard that his brother claimed to be his guardian. No testimony was offered to contradict his testimony.

Amos Richard Olmstead reported t,o the probate court that there was no property in the estate of his mother, and received his discharge in March, 1900. The father of the complainants died before the mortgage was made, leaving an estate which came into the hands of Amos R. Olmstead, who was appointed his administrator. In January, 1900, he filed his final account as administrator of the 'estate of his father, in which he charged himself with ■property amounting to upwards of $1,900, no part of which was the proceeds of this mortgage. He presented a claim for the maintenance of each of the complainants as minors for six years, and was allowed $450 each for their maintenance. The circuit court in chancery never made an order authorizing the transfer of this mortgage to Amos R. Olmstead or any other person, and no proceeding was had or order therein made in that court subsequent to October 8, 1887, when an order was made directing a conveyance.

The circuit judge was of the opinion the payment of the ■mortgage, if payment was made, to Amos R. Olmstead, was wholly unauthorized.

A number of questions are raised by counsel, some of which we deem it unnecessary to discuss. Counsel say the right to appoint a testamentary guardian is conferred by the statutes of this State (3 Comp. Laws 1897, §§ 8706, 8707). It is their contention that it is not necessary for letters of guardianship to be issued to a testamentary .guardian; that the appointment is made by the testator, and becomes operative and effectual when the will is admitted to probate. Their claim is, to state it succinctly and logically, that, when the will of Mrs. Olmstead was probated, the guardian named therein, without the further intervention of the probate court, and without giving a bond, could at once take possession, not only of the, property willed to his wards by their mother, but also of the property which came to them from another source, and •over which she would have no control without the intervention of a court. They cite Palmer v. Oakley, 2 Doug. 433 (47 Am. Dec. 41); Carpenter v. Harris, 51 Mich. 225 (16 N. W. 383); and Goss v. Stone, 63 Mich. 322 (29 N. W. 735). There are expressions used in these cases which, .standing by themselves, tend to support the argument of counsel; but, when the cases are examined, we do not "think they establish the doctrine contended for, and which might lead to disastrous results to infants, as is shown if applied to this case.

In the case of Palmer v. Oakley it was sought to set aside a guardian’s sale. The guardian was a married woman, and it was argued that, because of her coverture, she could not execute a legal bond, and, as the statute required a bond to be given by a guardian, therefore she could not become a guardian, and could not make a valid guardian’s sale. A bond in that case had actually been given, with sufficient sureties. The court held:

“ It is very clear that the words of the act do not make it imperative upon the guardian to execute the bond, and it is equally clear that the end to be attained does not render such a construction necessary, When the guardian gives a bond with sufficient security, the object of the law is fully answered. If the fifth section stood alone, the construction contended for by the plaintiffs might prevail, as the words ‘shall give a bond’ might reasonably be construed to be equivalent to the words ‘shall execute a bond.’ I am unable to perceive the necessity for the execution of the bond by the guardian, as no additional security is thereby afforded to the minor in the event of a breach of its conditions.”

The case of Carpenter v. Harris was one where a testamentary guardian was in possession of real estate" belonging to his wards. He was forcibly dispossessed by the administrator of their deceased mother. The proceeding was a special one to enable the guardian to resume possession. The court held that the possessory rights of the heirs were superior to those of the administrator. The will appointing the guardian waived his giving a bond. While the record is not clear as to whether letters of guardianship were issued by the probate court, it is a fair inference they were. All the case says upon that subject is:

“Whether the probate court should require bonds or not is not important now, because, as held in Palmer v. Oakley, 2 Doug. 433 (47 Am. Dec. 41), the failure to give bonds does not vacate the appointment of itself.”

In Goss v. Stone the question was whether an appeal would lie to the circuit court from an appointment of a guardian 07 a probate court. In the discussion the court used tbe following language:

“The appointment of a permanent guardian is one of the most important things that can happen to an infant, involving the custody of all property, and, where there are no parents, generally involving, also, the control of the person. In all countries this jurisdiction has been regarded as of the highest importance. In England it was vested in the highest court in the realm; and, while in this country it has frequently been placed in the courts exercising probate powers, it has never been considered as not within judicial supervision in .some way, and has generally been put in courts from which an appeal lies, involving a rehearing on the merits. In Taff v. Hosmer, 14 Mich. 259, the nature of this power was considered, and cases cited to show both its judicial character and its importance; and in that case a near relative, who, it was expressly decided, could not have appealed from the probate of a will if nothing but property was involved, was held competent to appeal on account of its appointment of a guardian, although, if the will was established, it was held the father’s choice would prevail.”

It was held an appeal would lie. Incidentally it was said:

“It was suggested that a married woman is not a competent guardian. As the contrary was held in Palmer v. Oakley, 2 Doug. 456 (47 Am. Dec. 41), and has been recognized ever since, we need not discuss the question.”

It will be observed in these cases a bond had been given or had been waived by the terms of the will, and it does not appear that no letters of guardianship had in fact been issued.

The provision for the appointment of testamentary guardians is found in 3 Comp. Laws 1897, § 8706. The following section reads as follows:

“Every such testamentary guardian shall give bond in like manner, and with like condition, as is hereinbefore required of a guardian appointed by the judge of probate: Provided, that when the testator, in the will appointing the guardian, shall have ordered or requested that such bond shall not be given, the bond shall not be required, unless from a change in the situation or circumstances of the guardian, or for other sufficient cause, the judge of probate shall think proper to require it.”

The will appointing the guardian in this case was silent, as to bonds. The statute relating to bonds of guardians .appointed by the judge of probate reads: “Every such guardian shall give bond, with surety or sureties, to the judge of probate, in such sum as the judge shall order, with condition as follows: * * *” And then follow the conditions, which are not material to the question involved here. 3 Comp. Laws 1897, § 8704. This language of the statute is mandatory, and requires a bond to be given unless the giving of it is waived; and it follows that an opportunity should be given to the probate court to pass upon the question of whether a bond shall be given or not. Section 9281; 3 Comp. Laws 1897, requires wills to be probated before they shall pass either real or personal estate. Section 9284 provides that, when the will is probated, letters testamentary, or letters of administration with the will annexed, shall be granted, and when granted shall extend to all of the estate of the testator in this State; but there is not a suggestion in the statute anywhere, to which our attention has been called, that the letters testamentary will authorize the executor to take possession of any property except that belonging to the estate of the testator. When the will provides for the appointment of a testamentary guardian, the various sections of the statute ought to be so construed as to require the giving of such security before the testamentary guardian can act as shall prevent the waste or wrongful appropriation of the estate of the minor. The right to appoint a guardian by will is a statutory right. Before the appointment can become effective, the statutory limitations that are intended to safeguard the interests of the ward must be met. See Hatch v. Ferguson, 15 C. C. A. 201 (68 Fed. 43, 33 L. R. A. 759); Wadsworth v. Connell, 104 Ill. 369; Wuesthoff v. Insurance Co., 107 N. Y. 580 (14 N. E. 811).

It is said, “Complainant Eugene D. Olmstead came of age some four years before the commencement of this suit, and in the meantime the rights of the subsequent purchasers accrued, and this delay estops him from taking their property to satisfy his claim.” The record shows that, within a short time after knowledge came to Eugene D. Olmstead that this mortgage had been given, this bill was filed. We do not think any laches are shown.

The decree is affirmed, with costs.

The other Justices concurred.


author: Montgomery, C. J..

text:
    CRANE v. BAYLEY.
    1. Corporations — Agreement op Directors — Written Instrument — Parol Evidence.
    Where the directors o£ a corporation executed an agreement in writing binding themselves to contribute in the payment of certain notes to be given by two of their number to the corporation for purposes declared in clear and unambiguous terms in the writing itself, parol evidence as to the object of the agreement was rightly excluded in an action against a director to recover his pro rata share; neither fraud nor mis-, take being claimed in the pleadings.
    :2. Same — Assets—Deficit—Dividends—Public Policy.
    An agreement by the seven directors of a corporation, which . recites that the assets of the corporation fall short of equaling the capital stock and liabilities, after payment of a 6 per cent, dividend, which the directors “deem it desirable and politic to pay,” in view of which fact two of the directors shall give their notes for the deficiency, which notes shall be retired out of the earnings of the corporation, each director, however, assuming a pro rata liability to the makers, is not void on its face as having for its purpose a fraud upon the public.
    S. Pleading — Defenses—Want op Consideration.
    Under Circuit Court Rule No. 7, subd. c, defendant, in an action on a written instrument, who has failed to give notice with his plea of a claim that the instrument was without consideration, cannot interpose such a defense at the trial.
    4. Corporations — Agreement by Direotors — Contribution.
    Where a note was given to a corporation by one of its directors in pursuance of an agreement entered into by the seven directors stipulating that each would be liable to the maker for one-seventh of the amount of the note, should he be called on to pay it, and that such note might be retired out of the earnings of the corporation, the maker of the note was not bound to insist on the payment of the note out of the earnings of the company, but could pay the same, and demand contribution.
    Error to Wayne; Donovan, J.
    Submitted November 15, 1900.
    Decided April 25, 1901.

      Assumpsit by William S. Crane against Volney P. Bayley on an agreement for contribution. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      George X. M. Collier and William W. Chapin, for appellant.

      George H. Carlisle (Graves & Hatch, of counsel), for appellee.
   Montgomery, C. J..

In December, 1894, the plaintiff and defendant were two of the seven directors of the Home Building & Loan Association. On that day all of the directors as individuals entered into an agreement in writing in the following terms:

“Whereas, the undersigned, Clark J. Whitney, William 5. Crane, Anthony Grosfield, J. B. Kennedy, R. J. McLaughlin, V. P. Bayley, and Edward D. Stair, are directors of the Home Building & Loan Association of Detroit;
“And whereas, by reason of the expenses incident to the beginning of business of the association, and otherwise, a deficiency of about $8,800.00 appears in the finances of the association, the assets being that amount short of equaling the capital stock and the liabilities of the association, after payment of a dividend of 6 per cent, per ■annum to all shareholders, and which the undersigned deem it desirable and politic to pay:
“Now, therefore, it is agreed as follows: Said Clark ■J. Whitney and William S. Crane at.this time shall each make their promissory note to the Home Building & Loan Association, dated December 28th, 1894, and payable in one year, for the sum of $4,500.00 each, respectively, bearing interest at 7 per cent., and shall each secure to the association the payment thereof by the pledge of stock of the association held by them for the face or par value of $5,000.00, under the rules of the association; and the said notes shrill thereupon become the assets of the association, and the said stock shall remain as collateral thereto until the same is paid or adjusted.
“ It is understood, nevertheless, that the said notes may hereafter be retired out of’the profits of the business of the Home Building & Loan Association in preference to payment of dividends therefrom, but it shall not otherwise be considered a liability of said association; to the end that no deficiency shall appear in the assets of the Home Building & Loan Association.
“It is further agreed that- each of the parties hereto shall hold the said Whitney and the said Crane harmless on account of their giving said notes to the extent of each one-seventh of the amount; it being understood to be a pro rata arrangement as to each of these parties. And, in event of said Whitney and Crane being called upon to pay the same, the other five will each contribute one-seventh of what said Whitney and Crane are required to pay. Said notes may be renewed from time to time without affecting this agreement, and this shall be a continuing guaranty for all such renewals of the same, or any part thereof.
“It is further mutually agreed that, within three years from the date hereof, the said notes shall be retired, and said Crane and Whitney released therefrom: Provided, however, that said Whitney and Crane shall each pay or •arrange for their one-seventh of the amount respectively.”

The declaration counts on this agreement, avers payment of the $4,500 note signed by himself, and avers that ■defendant has become liable to contribute his one-seventh. The plaintiff recovered a verdict and judgment by direction of the court, and defendant brings error.

There are numerous assignments of error based on rulings excluding offered testimony. In some instances we find that the testimony excluded by the ruling was after-wards obtained, and was inconsequential.

Error is assigned on the refusal of the court to allow an answer to the question as to the object of giving the note. It might be said that the facts subsequently developed rendered this inquiry immaterial in any event; but it is-enough to say that the parties, in unambiguous language, declared .in the written instrument itself the purpose of' the agreement, and neither mistake nor fraud is claimed in the pleadings. Baker v. Baird, 79 Mich. 255 (44 N. W. 604).

It is contended that the contract is void as against public policy, and was intended to practice a fraud on the public. There is no notice under the plea of any extraneous facts which would affect the validity of the contract. On its face it does not appear to us to be against public policy. The seven directors of the company, finding that the assets of the company were less than the liabilities, including the capital stock, undertook to make up the deficit, stipulating among themselves that the note might be retired out of the earnings of the company. There is no indication on the face of this agreement of any purpose to-mislead any member of the public.

The defense that there was no consideration for the agreement is not open upon the pleadings. Cir. Ct. Rule No. 7; Walbridge v. Tuller, 125 Mich. 218 (84 N. W. 133).

A question of more difficulty is whether the plaintiff was bound to insist upon the payment of this note out of the earnings of the company, or whether he could make-payment and demand contribution. There is no evidence that the earnings of stock had in fact been applied to the-payment of the note, and the terms of the agreement did not make it obligatory upon the company to do so. The authority given by the agreement to the plaintiff to pay this note and exact contribution was general, and was not withdrawn, nor were there any steps taken by defendant, or any other interested party, to compel the company to resort to earnings.

We think the circuit judge reached the correct conclusion. Judgment affirmed.

The other Justices concurred.


text:
    STATE SAVINGS BANK OF IONIA v. MONTGOMERY.

    1. Agency — Presumptive Notice to Principal — Adverse Interest oe Agent — Bank Cashier — Discounts.
    Knowledge of a bank cashier’s fraud, in falsely representing to a maker and indorser of certain notes for his accommodation, discounted by him at the bank, that such notes were renewals of other notes, when such other notes had in fact been paid, cannot be imputed to the bank on the theory that the cashier acted as agent for the bank in accepting the notes; such principle of agency being inapplicable where the cashier himself is the party in interest.
    2. Same — Misrepresentations—Injury—Loss of Security.
    Defendant signed two accommodation notes for the benefit of a bank cashier, the notes to be discounted by the bank. After maturity he was told by the cashier that one of the notes was paid, whereupon he executed a note intended as a renewal of the unpaid note. Defendant testified that he had intended demanding security of the cashier, but did not do so because of his representation that the one note was paid; but it appeared that the cashier was then insolvent, and could not have given security if required. The last note given was subsequently returned to defendant. Held, in an action on the first notes, that, conceding that the bank could be charged with such representation, defendant had failed to show that he was injured thereby.

      Error to Ionia; Davis, J.
    Submitted October 9, 1900.
    Decided April 25, 1901.

      Assumpsit by the State Savings Bank of Ionia against Alexander T. Montgomery on certain promissory notes. Erom a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      John Nichol and R. A. Hawley, for appellant.

      George E. & M. A. Nichols, for appellee.

       Rehearing denied June 24, 1901.

   Moore, J.

The plaintiff sued defendant to recover the amount due on two notes reading as follows:

“$1,500.00. Ionia, Mich., Nov. 20th, 1897.
“Nin'ety days after date I promise to pay to the order of State Savings Bank of Ionia, Michigan, fifteen hundred and 00-100 dollars, at the State Savings Bank of Ionia, Michigan, with 7 per cent, interest after date. Value received.
“A. T. Montgomery.”
“$1,000.00. Ionia, Mich., Nov. 20th, 1897.
“Ninety days after date I promise to pay to the order of State Savings Bank of Ionia, Michigan, one thousand and 00-100 dollars, at the State Savings Bank of Ionia, Michigan, with 7 per cent, interest after date. Value received.
“F. A. Sessions.”

On the back of the last note is written, “A. T. Mont gomery.”

The circuit judge directed a verdict in favor of the plaintiff. The defendant has brought the case here by writ of error, asserting the case should have been submitted to the jury.

The predecessor of the plaintiff bank was the First National Bank of Ionia. Mr. Sessions was cashier of this bank from 1880 until the plaintiff bank became its successor, when he became the cashier of the plaintiff bank, and continued to be so until the last of March or the first of April, 1898, at which time it was learned that he was in debt to the bank in a large amount, and was insolvent. The notes sued upon were given for the benefit of Mr. Sessions. Mr. Montgomery was an accommodation maker of one note, and an accommodation indorser of the other. When he attached his name to these notes, he knew they were to be discounted by the plaintiff bank. The bank had a discount committee, whose duty it was to pass upon original loans; and an examining committee, whose duty it was to look after the paper taken by the bank. The members of both of these committees testified they had no knowledge the'first note was made for the accommodation of Mr. Sessions, but supposed it a note given by Mr. Montgomery in the due course of business. The discount committee knew the $1,000 note was indorsed by defendant as accommodation indorser, but the members of the committee all deny they knew there was any defect in the paper. The record shows defendant was a customer of the bank, and had been for some time. The discount committee had fixed his line of credit at from $3,500 to $4,000. Outside of the two notes in question, the defendant was a borrower in small amounts, for which he put collateral securities in the hands of the cashier. It is the claim of the bank officers that they supposed all his notes were secured by these collaterals, and that, when the examining committee questioned Mr. Sessions why the paper was not paid when it was due, they were assured by him that defendant was shipping horses at the time, and needed the money in his business, but the paper was se-cured by collaterals.

When the pleadings in the case were first put in, the defendant gave notice that he would show he received no consideration for the notes, but they were made for the benefit of Mr. Sessions; that on the 15th of March, 1898, he intended to require of Mr. Sessions, who was then solvent, indemnity against loss on the notes, but was informed by him that the $1,500 note had been paid, and, relying upon this statement, he renewed the $1,000 note; that he would not have done so if he had not believed the statement to be true. It was the claim of defendant that the notes in controversy were given by him he supposing-they were renewals of notes which had been given before, the proceeds of which were used by Sessions. Upon the-trial of the case, some of the books of the bank were introduced in evidence, and it is claimed by defendant they showed that, when the two notes in controversy were made,, the two notes of like amount, for which Mr. Sessions said the notes in controversy were given as renewals, had in fact been paid. The defendant obtained leave to amend, his plea according to his understanding of the facts. It is. the claim of the bank that, though the books show Mr. Sessions gave a check for the amount of the notes, and the notes were charged to him upon the books of th'e* bank, they were not in fact paid. It is also the claim that, whether this was so or not, as the cashier of the bank was acting in his own interest when the notes were discounted, his knowledge of his fraud in procuring the paper is not to be imputed to the bank, and that, as the-bank discounted the paper without any knowledge by any other officer of the bank of any fraud in its procurement, the bank was entitled to recover the full amount of the notes. In directing a verdict for the plaintiff, the circuit judge expressed himself in part as follows:

“My view of the law is, the right to borrow funds from the bank on accommodation paper was not within the scope of Mr. Sessions’ authority as the cashier, under the-law. It appears from the evidence that Montgomery knew of the character of the paper that was given, and its purpose, and that it was to be used for the private benefit of Mr. Sessions, made payable to the bank, and in law was presumed to know that Mr. Sessions had no authority to loan the money in this way without authority derived expressly from the board of directors. It was a transaction that, to bind the bank, in my judgment required specific authority on the part of the directorate; and, when dealing with the cashier under the circumstances shown, he must, before he can secure the benefit of his defense interposed here, show that such authority was conferred; otherwise, it will be held not to be done with authority. The cashier, in law, has no legal right to make notes running to the bank to pay private debts. A private maker or indorser lending his name for such a purpose is participating in the act of the cashier, and, unless the same was by authority and knowledge of the directorate, was ratified. In this case no such sufficient knowledge exists, and no such authority to bind the bank; hence his defense is not a sufficient one.
“The directorate are in law bound to protect the funds of the bank, not for their own benefit, but for the benefit of those doing business with them in the regular way; and they are not in law bound to inquire into every transaction, to see that no fraud is committed upon parties who have assisted the cashier in diverting funds from their proper place to his own credit. It must be supposed that the party intended to be what he appeared on the paper, without it was brought to their knowledge, and, knowing it, they permitted the cashier to handle it as he saw fit. It is to be regretted in this case that Montgomery must lose through the fraud and wrong of the cashier, and innocently on his own part; but, if he lends his name in prejudice of the rights and interests of the bank, although ever so innocently, and as a result, without knowledge on the part of the directorate, a wrorg was done to him by the party for the benefit of whom he lent his name, he cannot now complain. It must be considered he lent his name to be used on the paper of the bank in a transaction in which the cashier had no right to act without authority, and where he was acting for himself; and this put him upon his inquiry if he desired to hold the bank for any wrong or fraud he claims had been perpetrated by the cashier, for, without express notice or authority from the directorate, Mr. Sessions could not release him. It is a rule of law that persons dealing with an agent, knowing that he acts by delegated authority, must, at their peril, see in each case that the facts upon which they rely come within the power delegated.
“Upon the other question, I think the evidence does not clearly show such a change of position on the part of Montgomery as to make the defense in this case available.”

It is the claim of defendant, through his counsel, that there is reversible error:

“First. Because the notes in question were procured by means of the false representations of said Sessions, relied on by the defendant; and that Sessions, as plaintiff’s cashier, having acted for the plaintiff in accepting said notes on the part of the bank, the plaintiff became and was chargeable with Sessions’ knowledge of the fraud used by him in procuring such notes to be signed by defendant.
Second. Because the plaintiff had notice or knowledge of the accommodation character of said notes, so far as defendant’s connection therewith is concerned, and was chargeable with the knowledge possessed in that regard by its cashier, Mr. Sessions, who acted on the part of the bank in accepting such notes, and was bound by Mr. Sessions’ statement made by him to the defendant on March 15, 1898, that the $1,500 note had been paid; particularly, if the jury had found that such statement was made, and that the defendant was misled by it to his injury.”

It is very clear from the record that, unless the knowledge Mr. Sessions possessed is to be imputed to the bank, the latter had no knowledge of any want of consideration for the notes. If the knowledge of the cashier is to be imputed to the bank, then it had full knowledge that Mr. Montgomery received nothing for the notes. It is said by the defendant that the cashier is the executive officer of the bank; and is held out as its general agent in the negotiation and disposal of the notes, securities, and other funds of the bank; that it is his duty to receive payment of the notes held by the bank, and to give information as to whether a note has been paid or not; that what was done in relation to the notes in controversy by the cashier was done for the bank, and that his knowledge was the knowledge of the bank, — citing Merchants’ Bank v. State Bank, 10 Wall. 604; Kimball v. Cleveland, 4 Mich. 606; Oakland County Sav. Bank v. State Bank of Carson City, 113 Mich. 284 (71 N. W. 453, 67 Am. St. Rep. 463); Cochecho Nat. Bank v. Haskell, 51 N. H. 116 (12 Am. Rep. 67). Counsel say, “It is well settled that if an officer of a bank acts alone in discounting a note, and in placing the proceeds to his own credit, the bank will be bound by his knowledge of the circumstances under which he obtained it from the maker;” citing Shaw v. Clark, 49 Mich. 384 (13 N. W. 786, 43 Am. Rep. 474); Washington Bank v. Lewis, 22 Pick. 24; and many other cases.

An examination of the authorities shows a want of harmony in relation to how far the knowledge of an officer of the bank is to be regarded as the knowledge of the bank. We think, however, the great weight of authority is as follows (Innerarity v. Bank, 139 Mass. 332 [1 N. E. 282, 52 Am. Rep. 710]):

“While the knowledge of an agent is ordinarily to be imputed to the principal, it would appear now to be well •established that there is an exception to the construction or imputation of notice from the agent to the principal in case of such conduct by the agent as raises a clear presumption that he would not communicate the fact in controversy; as where the communication of such a fact would necessarily prevent the consummation of a fraudulent scheme which the agent was engaged in perpetrating. Kennedy v. Creen, 3 Mylne & K. 699; Cave v. Cave, 15 Ch. Div. 639; In re European Bank, 5 Ch. App. 358; In re Marseilles Extension R. Co., 7 Ch. App. 161; Atlantic Nat. Bank v. Harris, 118 Mass. 147; Loring v. Brodie, 134 Mass. 453. * * * A bank or other corporation can act only through agents, and it is generally true that, if a director who has knowledge of the fraud or illegality of the transaction acts for the bank,— as in discounting a note,- — -his act is that of the bank, and it is affected by his knowledge. National Security Bank v. Cushman, 121 Mass. 490. But this principle can have no application where the director of the bank is the party himself contracting with it. In such case the position he assumes conflicts entirely with the idea that he represents the interests of the bank. To hold otherwise might sanction gross frauds by imputing to the bank a knowledge those properly representing it could not have possessed. Whether Burgess acted or not at the meeting of the directors in the matter of the loan, he could not lawfully have done so as the representative of the bank. His individual interest was distinctly antagonistic; and the question before the board related to its approval of a provisional transaction between himself and the president of the bank, in which he was the proposed borrower and‘the bank was to be the lender. A director offering a note of which he is the owner for discount, or proposing for a loan of money on collateral security alleged to be his own property, stands as a stranger to it. ‘That a joint-stock bank,’ says, in substance, Sir W. M. James, ‘should have imputed to it the knowledge which the director has of his own private affairs, is a most unreasonable proposition.’ In re Marseilles Extension R. Co., 7 Ch. App. 170.
“ The relation which a director, who is himself acting for another in a negotiation with a bank, occupies towards it, was considered in Washington Bank v. Lewis, 22 Pick. 24, where it was argued that, although he was not the agent of the hank, yet his knowledge of facts showing the note to be invalid was that of the bank.
“ ‘Whatever a director or other agent of a bank,’ says the court, ‘ may do within the scope of his authority, would bind the bank, so as to make them responsible to the person dealt with. But, in the present case, Thompson was the party applying for the discount, and was not acting as director, nor could he with any propriety so act. He was the party with whom the bank contracted in discounting the note, and to whom the money was paid.’
“The proposition that a director of a corporation acting avowedly for himself, or on behalf of another with whom he is interested in any transaction, cannot be treated as the agent of the corporation therein, is well sustained by authority. Stratton v. Allen, 16 N. J. Eq. 229; Barnes v. Gaslight Co., 27 N. J. Eq. 33; First Nat. Bank v. Christopher, 40 N. J. Law, 435 (29 Am. Rep. 262); Winchester v. Railroad Co., 4 Md. 231; Wickersham v. Zinc Co., 18 Kan. 481 (26 Am. Rep. 784); Seneca County Bank v. Neass, 5 Denio, 329, 337; Third Nat. Bank v. Harrison, 10 Fed. 243; Stevenson v. Bay City, 26 Mich. 44; In re Marseilles Extension R. Co., supra; In re European Bank, supra. In some of these cases weight appears to be given to the fact that the director was not actually present at the meeting when the transaction was concluded; but this cannot be of importance. If it were shown that Burgess urged the loan upon the board of directors, and actually voted in favor of it, his associates not seeing fit to intervene or object to this conduct, he would still have acted on his own behalf and of those whose interests and efforts were of necessity adverse to those of the corporation. To assume that under such circumstances the facts he knew were communicated to the •directors, and that he laid before them the fraud he was committing in wrongfully pledging property, would be a presumption too violent for belief, and would do great injustice to the remaining directors and the interests they represented.”

See, also, Allen v. Railroad Co., 150 Mass., at page 206 (22 N. E. 919, 15 Am. St. Rep. 191); Corcoran v. Cattle Co., 151 Mass. 74 (23 N. E. 727); West Boston Sav. Bank v. Thompson, 124 Mass. 506; First Nat. Bank v. Babbidge, 160 Mass. 563 (36 N. E. 462); Hummel v. Bank, 75 Iowa, 689 (37 N. W. 954); National Bank v. Feeney, 9 S. Dak. 550 (70 N. W. 874); First Nat. Bank v. Gifford, 47 Iowa, 575; First Nat. Bank v. Briggs’ Assignees, 70 Vt. 594 (41 Atl. 580); Richardson v. Watson, 51 La. Ann. 1390 (26 South. 422); Frenkel v. Hudson, 82 Ala. 158 (2 South. 758, 60 Am. Rep. 736); Farmers’, etc., Bank v. Payne, 25 Conn. 444 (68 Am. Dec. 362); Mayor, etc., of New York v. Bank, 111 N. Y. 446 (18 N. E. 618); Barnes v. Gaslight Co., 27 N. J. Eq. 33; Commercial Bank v. Burgwyn, 110 N. C. 267 (14 S. E. 623); Merchants’ Nat. Bank v. Lovitt, 114 Mo. 519 (21 S. W. 825, 35 Am. St. Rep, 770); Gallery v. Bank, 41 Mich. 169 (2 N. W. 193, 32 Am. Rep. 149); Wickersham v. Zinc Co., 18 Kan. 481 (26 Am. Rep. 784); First Nat. Bank v. Christopher, 40 N. J. Law, 435 (29 Am. Rep. 262).

The question, then, becomes pertinent, Is this the rule of law applicable to this case? The defendant knew when he gave these notes that he was not to receive the proceeds, and that, if used at the bank, they would be used for the benefit of the cashier. He also knew that in discounting them he would act in his own interest. Suppose it be conceded the cashier obtained the notes by representing the prior notes had not been paid. This undoubtedly would invalidate the notes when they were yet in the .hands of the cashier, but it cannot be presumed that when he discounted the notes he told the officers of the bank óf •.those facts which would invalidate the notes. We think this would be a presumption contrary to all human experience. The record discloses the cashier was not authorized to discount paper generally, and that, before this paper was presented, the discount committee had passed upon the question of extending credit to defendant, and had decided the extent to which credit should be extended. There is nothing in the record to show knowledge on the part of the bank of any fraud in procuring the paper, except the knowledge of the cashier, and that knowledge is not imputable to the bank, because he represented himself only when the paper was discounted.

It is urged that upon March 15, 1898, the defendant was assured by the cashier that the $1,500 note had been paid, and that he was requested to renew the $1,000 note, with which request he complied, and that at this time he intended to obtain security against any loss upon both of said notes, but because of said statement he was lulled into security. This claim was denied by the cashier. Defendant’s contention is that the bank was bound by the statements made by its cashier, and, if the defendant was misled by such statement to his injury, the bank is now estopped from claiming to the contrary, and cannot recover on either of the notes in question; citing Oakland County Sav. Bank v. State Bank of Carson City, 113 Mich. 284 (71 N. W. 453, 67 Am. St. Rep. 463); Cochecho Nat. Bank v. Haskell, 51 N. H. 116 (12 Am. Rep. 67); Grant v. Cropsey, 8 Neb. 205; Benton County Sav. Bank v. Boddicker, 105 Iowa, 548 (75 N. W. 632, 67 Am. St. Rep. 310); First Nat. Bank v. Peltz, 186 Pa. St. 204 (40 Atl. 470); 1 Daniel, Neg. Inst. § 392.

If it be conceded these authorities bear out the proposition of counsel, it is difficult to see how, under the circumstances of this case, it would help the defendant. The cashier attempted to negotiate the $1,000 note in Detroit. He failed to do so, and it was returned to the defendant. It does not appear that defendant relinquished any security he had because of this statement. On the contrary, it is shown that, when the $1,000 note was returned, the cashier, without the knowledge of the bank, returned to the defendant all of the collateral he had in the bank. Neither does it appear that on March 15, 1898, Mr. Sessions could have secured the defendant against loss if he had desired to do so. Indeed, at this time nearly all the property of Mr. Sessions had been hypothecated, or in one way or another transferred, by him. His debts at this time were nearly, if not quite, $40,000, while his assets were merely nominal. He testified that, if Mr. Montgomery had demanded security, he could not have given it. It does not appear that this testimony was untrue. None of the authorities go *so far as to hold the bank would be bound by the statement of Mr. Sessions that the note had been paid when in fact it had not been paid, unless the defendant, in reliance upon said statement, had done some act, or failed to do some act, which resulted in injury to him. This he has failed to show.

The judgment is affirmed.

The other Justices concurred.

       Apparently an error in the record. — Reporter.


text:
    HULBURT v. JUST.
    1. Mechanics’ Liens — Excessive Claim — Good Faith.
    A disparity between tbe amount to which a lien claimant is entitled and that for which he filed his claim of lien, though very great, will not defeat his lien for the true amount, unless the overstatement was made in bad faith.
    2. Same — Credits—Banks and Banking — Overdraft.
    A former cashier of a bank, whose position was not yet filled, and who still presumed to speak with authority, instructed the assistant cashier to pay the checks of a certain contractor then building a house for such cashier. The contractor overdrew his account, the checks being charged to him. There was no testimony that tb e contract between the contractor and the bank was other than it purported to be on its face, — an overdraft, — although the assistant cashier answered affirma tively a question as to whether the account was not in fact the cashier’s. Held, that, it not appearing that credit was given exclusively to the cashier, the contractor was legally bound on the checks, and the overdraft could not be deemed a payment to the contractor in diminution of his claim of lien.
    Appeal from Ionia; Davis, j.
    Submitted December 4, 1900.
    Decided April 25, 1901.
    Bill by George D. Hulburt against William J. Juskand Isaac N. Just, administrators of the estate of Josiah E. Just, deceased, the Ionia County Savings Bank, Dollie B. Van Devanter, and others, to enforce a mechanic’s lien. From a decree for complainant, defendant Van Devanter appeals.
    Modified.

      Chaddock & Scully, for complainant.

      William 0. Webster (Allen B. Morse, of counsel), for appellant.

      A. A. Ellis, for defendant Ionia County Savings Bank.
   Montgomery, C. J.

This is an appeal from a decree establishing a mechanic’s lien in favor of the complainant. The appeal is taken by Dollie B. Van Devanter, mortgagee.

The premises involved were the property of Josiah E. Just, who died while the building for the construction of which the lien is asserted was in the course of construction. After the death of Mr. Just, the complainant offered to go on and complete the building; but the administrators preferred to have operations suspended, and this appears to have been assented to. Complainant filed a claim of lien for $1,938.78, and it is strenuously insisted by defendant’s counsel that the record shows that this claim was fraudulently made for an amount largely in excess of the amount due. The circuit judge found a lien in favor -of complainant for the sum of $760.20. The disparity between the allowance and the claim is very great, but the complainant accounts for it in the following manner: When work was suspended on the building, complainant had on hand material which he had purchased for the completion of the contract amounting in value to $717.05, which, at the time of swearing to this claim of hen, he appears to have treated as a part of the building, and a portion of the expense already incurred. We think this was not evidence of bad faith. If also appears that, in figuring the amount due, complainant, through an oversight, failed to credit the Just estate for an item of $75 for a change in the plans. This leaves a discrepancy of $386.53; but it is -evident that the circuit judge disallowed certain items of extras on the ground that the contract had no.t been ■changed in writing, and that he did not adopt the complainant’s estimate as to the cost of completing the building. It does not follow that complainant’s claim in this respect was not made in good faith, and, on the whole record, we are not convinced of his bad faith in filing the claim. The mere overstatement, unless made in bad faith, does not defeat the lien. Gibbs v. Hanchette, 90 Mich. 661 (51 N. W. 691); Scheibner v. Cohnen, 108 Mich. 165 (65 N. W. 760).

During the progress of the work, complainant overdrew his account at the Ionia County Savings Bank $1,300. Defendant’s counsel contend that the money was drawn from the bank under circumstances creating no liability •on the part of the complainant to the bank, but that the circumstances show that the credit was extended to Josiah IE. Just. Mr. Burletson, the assistant cashier of the bank, testified as to those payments as follows:

liQ. When a check came in while Mr. Just was absent, —check of Hulburt drawn on this account, — I suppose you paid it without looking to see whether Hulburt had -overdrawn his account or not ?
“A. We were instructed to.
UQ. Who instructed you to do this ?
“A. Mr. Just.
“Q. So that in fact this account of $1,300 was Just’s account, wasn’t it ?
“A. Yes, sir; that is where it rightly belongs.
“Mr. Ellis: What do you mean by that, — that it was Just’s account ?' It was money he orally guaranteed to the bank ?
“A. That was about it.
“Q. Money that Hulburt drew, drawn on Hulburt’s checks ?
“A. Drawn by Mr. Hulburt.
“Q. The only thing the bank had to show for it was the oral guaranty of Mr. Just that he would make it good ?
“A. He simply instructed us to pay Mr. Hulburt’s checks.
“Q. That is all you know about it?
“A. Yes, sir.
“Mr. Morse: Did you pay Mr. Hulburt’s checks on Hulburt’s l-esponsibility or on Just’s order?
“A. On Mr. Just’s order.
“Mr. Ellis: Whom did you charge them to?
“A. Mr.- Hulburt.
“Q. And the account was kept with Hulburt?
“A. Yes, it was in Hulburt’s name.
“Q. When the checks were overdrawn, or paid, then Just would deposit more money ?
“A. Yes, sir.”

There was no testimony that the contract between complainant and the bank was other than it purported to be on its face; that is, an overdraft. In construing the testimony as to the effect of Just’s instructions to Burletson, it should be stated and kept in mind that Just had been cashier of the bank, and, although he had resigned to take a position as State banking commissioner, the position of cashier was left vacant, and he still presumed to speak with authority. We do not find that credit was given exclusively to Just, but think that complainant was legally bound on these checks.

The circuit judge found due at the date of the decree $760.20, including interest, or about $700 of principal. We think the best testimony fixes the amount of the lien without interest at $506.56. The decree will be modified to this extent, and affirmed. No costs will be allowed in this court to either party.

The other Justices concurred.