author: Kuhn, J.

text:
    PEOPLE v. DAVIS.
    1. Adultery — Election—Time op Offense — Indictment and Information — Criminal Law.
    Respondents charged with adultery are entitled to request an election as to the date of the offense relied upon, so as to enable them to meet the charge, although the information need not specify the exact date. A statement of the prosecuting attorney that he would show respondents committed the offense between the 28th of April and the middle of May, 1912, was an insufficient election.

      2. Same — Evidence.
    Proof of acts of intimacy prior to the date charged is competent, but evidence of subsequent conduct is not admissible.
    3. Same — Complaint—Husband and Wife.
    Where the prosecution introduced in evidence the record of a marriage between the complaining witness and one respondent charged with adultery, and during the trial the attorney for respondents objected to the testimony of the alleged husband as privileged, there was a sufficient showing that the complaint was properly made under 3 Comp. Laws, § 11690 (5 How. Stat. [2d Ed.] §14775), by the husband.
    Exceptions before sentence from Bay;. Collins, J.
    Submitted April 17, 1913.
    (Docket No. 127.)
    Decided May 28, 1913.
    Bert Davis and Mary Chevalier were convicted of adultery.
    Reversed.

      Grant Fellows, Attorney General, and J. L. McCormick, Prosecuting Attorney, for the people.

      W. A. Collins and I. A. Gilbert, for respondents.
   Kuhn, J.

The respondents are charged with having committed the crime of adultery at the city of Bay City, in Bay county, on the 28th day of April, 1912. The case was brought here on exceptions before judgment. On the trial, before the jury was sworn, a request was made by the counsel for respondents that the prosecuting attorney furnish a bill of particulars of the dates upon which he relied. After the jury was sworn the following occurred:

“Mr. Hitchcock: A statement was asked by counsel for defendants requesting us to furnish a statement of the dates on which we allege the occurrence to have taken place. The only dates we can give are between the 29th of April and the middle of May of this year in the city of Bay City in a rooming house on Third street, and I do not recall the number.
“Mr. Collins: That statement is not one such as I apprehend would be a compliance with the law. I therefore ask it to be more particularly stated.
“The Court: The case may proceed.
‘Mr. Collins: I presume that ruling means that the prosecution is not required to furnish us with any more particular statement.
“The Court; Not at this time, no.
“Mr. McCormick: This case is a prosecution for adultery against the two defendants, Bert A. Davis, and—
“Mr. Collins: Just a moment. I desire to complete my objection to the ruling of the court. The information alleges the 28th day of April, 1912; the prosecution furnishes us with a statement from that date until the middle of May, which is after the date alleged in the information, and we object to the statement for the reason that it is not a particular specification at all, and for the additional reason that it is a specification at a time after the date alleged in the information and at a time when the law of this State says the prosecution can offer no proof. The law, your honor, seems to be quite explicit in this State and very precise to the effect that the prosecution can introduce evidence before, but not after.
“Mr. Hitchcock: I thought.it was the 29th; I am informed it was the 28th. I think I stated it the 29th, and it should have been the 28th.
“The Court: Then restate the dates, and I think you should find out the name of the proprietor of that rooming house, or the number, so that that may be a part of the statement.
“Mr. Hitchcock: I will restate the dates are from the 28th day of April to the middle of the May following, and the proprietor of the rooming house where the acts are alleged to have been committed is James W. McAllister, whose rooming house is upstairs over 205-207 Third street, Bay City, Mich. The year is 1912.
“Mr. Collins: I wish to renew my objection in the same form it was before, and I desire to call the court’s attention to a certain case.
“The Court: The motion is overruled. You may have an exception, and the case will proceed.”

No effort was made by the prosecutor to fix the time more definitely, and testimony was admitted to show the relations of the parties between the dates mentioned. In his charge to the jury the court said:

“So that the question gets right down to this, as to whether or not these defendants had intercourse one or more times between the 28th day of April, 1912, and the 16th day of May, 1912. If they did, they are guilty as charged. If they did not, they are innocent. * * * The people must prove beyond a reasonable doubt that these defendants had sexual intercourse one or more times between the 28th day of April, 1912, and the 16th day of May, 1912, in the rooming house conducted by the McAllisters.”

It was the duty of the prosecutor to fix some specific date, as the respondents had the right to know the date upon which he relied so as to enable them to prepare to meet the charge. Under the case as submitted by the court one juror might have found them guilty of having committed the offense on a certain day between the dates alleged, another on another day, and perhaps no two of the jury agreeing upon the same day. People v. Davis, 52 Mich. 569 (18 N. W. 362).

It would have been proper to have shown acts of intimacy prior to the date charged. This was not done, however, and acts subsequent thereto were shown. This testimony was wholly incompetent under repeated rulings of this court. People v. Clark, 33 Mich. 112; People v. Etter, 81 Mich. 570 (45 N. W. 1109) ; People v. Hubbard, 92 Mich. 322 (52 N. W. 729); People v. Fowler, 104 Mich. 449 (62 N. W. 572) ; People v. Payne, 131 Mich. 474 (91 N. W. 739) ; People v. Brown, 142 Mich. 622 (106 N. W. 149). See, also, People v. Molineux, 168 N. Y. 264 (61 N. E. 286, 62 L. R. A. 335, and cases in note).

It is also urged that there was error because there was no proof that the complaint was made by either the husband or wife of the respondents. Section 11690 of the Compiled Laws provides that “no prosecution for adultery shall be commenced but on the-complaint of the husband or wife.” The complaint is-signed by Louis Chevalier, who was offered as a witness by the people. At the time the following colloquy was had:

“Mr. Hitchcock: Louis Chevalier, be sworn.
“Mr. Collins: No, I object to Mr. Chevalier being-sworn for the reason that he is incompetent in this case as a witness. The testimony shows him to be the husband, and by consent the case has been made primes facie that he is married to the defendant. Under the-statute he is not a competent witness. .
“Mr. Hitchcock: Competent as to Mr. Davis without question. He is the complaining witness in the case.
“The Court: Have you any authority on that proposition ?
“Mr. Hitchcock: We will withdraw the witness.
“Mr. Hitchcock: That is the people’s case.”

The record of marriage of Louis Chevalier and Mary La Clair, the respondent, was received in evidence, and this, together with the statement of counsel above set forth, made a sufficient showing that the complaint was made by a person authorized by the statute.

The conviction must be reversed, and a new trial granted.

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


source: Caselaw Access Project

license: Public Domain

text:
    HOOPER v. WAYNE CIRCUIT JUDGE.
    Mandamus — Physical Examination in Negligence Case.
    For the reason that an order of the circuit court in a personal injury case requiring plaintiff to submit to a physical examination before the trial, involves an exercise of discretion that may be reviewed on error, mandamus to set aside such order will be denied.
    Mandamus by Archibald H. Hooper against Patrick J. M. Hally, one of the circuit judges of the county of Wayne, to compel respondent to vacate an order in a personal injury case requiring relator to submit to an examination.
    Submitted April 23, 1913.
    (Calendar No. 25,594.)
    Writ denied May 28, 1913.

      Louis H. Wolfe (Maxwell W. Benjamin, of counsel), for relator.

      Corliss, Leete & Joslyn (Thomas T. Leete, Jr., of counsel), for respondent.
   Kuhn, J.

Relator seeks by mandamus to compel the respondent to set aside an order made, requiring him to submit to a medical examination before trial in a cause pending in the circuit court for the county of Wayne, in which he is plaintiff and the Detroit United Railway, a Michigan corporation, the Western Union Telegraph Company, a foreign corporation, and the Studebaker Company, a foreign corporation, are defendants, and in which he is seeking to recover damages for personal injuries claimed to have been caused through the negligence of the defendants.

Assuming that the court has the authority to make the order in question, which we will not determine at this time, it certainly is a matter which involves the discretion of the trial court, and, under the ruling of this court in Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), such discretion will not be reviewed by mandamus, as the question can be raised after judgment by appeal or writ of error.

Writ denied.

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


text:
    SMITH v. MICHIGAN REALTY & CONSTRUCTION CO.
    1. Brokers — Principal and Agent — Fraud—Scope of Authority —Master and Servant.
    The sales agent of real estate brokers having authority to sell its property, acts within the scope of his authority in exhibiting a parcel of land to a prospective purchaser and calling attention to its iocation, desirability and attractive features; fraudulent representations made in so doing concerning the location, size, or dimensions of the lot resulting in a sale render the principal liable to a purchaser deceived by the agent.
    2. Fraud — False Representations — Vendor and Purchaser.
    The purchaser of a lot which defendant’s sales agent described to her as the parcel adjoining, that was owned by another person and of greater value, need not show valid contract to convey the adjoining lot, in order to entitle her to bring an action for deceit.
    3. Same — Sale of Real Estate — Rescission.
    Such purchaser might disaffirm the sale, tender back a conveyance of the realty and on refusal to repay the purchase price bring an action therefor, or might at his or her option affirm the contract and bring an action for the damages.

      4. Damages — Deceit—Value.
    In an action for misrepresentations as to the location of a lot purchased of defendant, plaintiff is entitled to recover the difference between the value of what she would have received if the representations had been true and the value of what she actually received.
    Error to Genesee; Wisner, J.
    Submitted April 22, 1913.
    (Docket No. 112.)
    Decided May 28, 1913.
    Case by Eliza A. Smith against the Michigan Realty and Construction Company for fraud and deceit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      William, V. Smith, for appellant.

      Mark W. Stevens, for appellee.
   Kuhn, J.

The defendant corporation in the year 1910 was engaged in the real estate business in the city of Flint, buying and selling land and acting as agent in buying and selling land for others, and also in the construction of buildings. Block 16 of the Oak Park subdivision of the city of Flint is bounded on the north by Baker street and on the east by Industrial avenue, which runs north and south between block 16 and the location of the automobile plant known as the Buick, which extends along the east side of Industrial avenue opposite block 16. Industrial avenue is a paved street 60 feet wide; the paving being 40 feet wide along the middle. The corner lot of said block 16, which lies along Industrial avenue and fronts on Baker street, is lot 16, which has 50 feet frontage on Baker and 135 feet deep on Industrial avenue. Lot 15 is of the same size and is next west of lot 16.

On January 10, 1910, the defendant owned lot 15, and lot 16 was owned by the Buick Motor Company. The plaintiff at this time learned through a Mr. Feazel that the defendant had a certain lot for sale and Feazel, at the request of the plaintiff, visited the offices of the defendant to obtain information concerning the said lot. It is the claim of the plaintiff that Feazel was informed by George R. Gardiner, in the employ of the defendant company, that defendant had a lot for sale which was not exactly a corner lot, but that there were 15 feet between it and Industrial avenue which were to be reserved for ornamental purposes and for flowers and shrubberies, and it is claimed that Gardiner at that time drew a sketch upon a card showing the lot to be within 15 feet of Industrial avenue, which card was taken by Feazel to the plaintiff and submitted to her; that, several days thereafter, plaintiff visited the locality and there saw a sign on a tree, which read as follows: “For sale by the Michigan Realty and Construction Company.” It is undisputed that the tree in question was on lot 16. It is the further claim of the plaintiff that she later visited the offices of defendant and there had a conversation with Gardiner concerning the lot, and that he at that time stated that the lot was within 15 feet of Industrial avenue and commenced at a point opposite a hydrant on Baker street and ran west 50 feet. This hydrant was located by the city engineer to be 17 feet west of the curb on Industrial avenue.

Plaintiff claims that, relying upon these representations, and believing that she was buying the property which subsequently was shown to be lot 16, she, on the 10th day of January, entered into an agreement by which she proposed to purchase from defendant lot 15 for the sum of $750, of which $50 was paid in cash. On the 27th day of January, 1910, the defendant executed a deed of said lot 15 to Peter Tierney and Harry J. Tierney and received the balance of the purchase price of $700 in cash. This deed was made to Peter Tierney and Harry J. Tierney, at the request of the plaintiff, to secure the payment of $600 which had been negotiated as a loan in order to enable her to pay the purchase price of the lot, and she received from Tierney Bros, a contract for the purchase of said lot, which transaction was in the nature of a mortgage to secure Tierney Bros, for the money advanced by them. Plaintiff also claimed that when she obtained the deed to the property she called upon Gardiner and told him that she would like to have the sign removed from her lot and from the big tree, and that it was removed.

Some time thereafter the plaintiff attempted to sell the lot she supposed she had purchased, and, upon an investigation being made, the prospective purchaser informed her that she did not own the lot she was attempting to sell. Upon learning of this fact, plaintiff called upon Mr. Symons, who was the general manager of the defendant company, and who at that time was in Saginaw, and upon obtaining no satisfaction from him she brought suit to recover damages because of the claimed representations made by Gar-diner and recovered a verdict of $950, upon which judgment was had. This defendant seeks to review by writ of error.

Defendant’s counsel has preferred 19 assignments of error, but has not discussed all of them, and such as are not so treated we will consider as abandoned. Supreme Court Rule 40; Carmer v. Hubbard, 123 Mich. 333 (82 N. W. 64); Walker v. Mack, 129 Mich. 527 (89 N. W. 338) ; Board of Education v. Van Der Veen, 169 Mich. 470 (135 N. W. 241).

The first question raised which we will consider is the claim of appellant that Gardiner, the agent, had no authority to sell her the lot she claims she purchased. It is claimed that he simply held a subordinate position and had no written authority to sell anything. On cross-examination Gardiner testified as follows:

“I was sales manager and as such authorized to sell the various real estate that we had for sale. I met and talked with various customers about the land we had for sale. If we could agree upon the price, I was authorized to finally make a contract of sale in behalf of defendant, and when deed was afterwards given it would be given by the Michigan Realty «fe Construction Company, the defendant. In making these contracts I would generally sign the name of defendant by myself as sales manager. I wasn’t a bona 'fide agent to make terms; they were submitted to the office. In all these things, making terms, making a contract in this case, I was acting for the defendant. (Plaintiff’s Exhibit 3 then shown to witness.) The signature is that of the plaintiff, Mrs. Smith, and that of the defendant by myself as sales manager. After-wards this contract was ratified by giving a deed. I made various contracts with other people for other lots similar to this and made terms at the stated price; and defendant finally gave deeds. I was agent for selling the property. There was a man there inquiring about this property in Mrs. Smith’s behalf, I don’t remember his name. I had some talk with him as to the property that was sold to Mrs. Smith.”

Mr. Symons, the general manager of the defendant company, stated that Gardiner’s authority was as follows :

“Mr. Gardiner was the salesman, and it was his business to offer lands for sale to prospective purchasers and to make the terms and conditions made by me and given to him. The price was fixed by me. He had authority to name the price fixed by the office.”

So that we have the agency of Gardiner established to make contracts for the sale of lands, subject to the approval of the principal. Mr. Mechem, in his work on Agency (section 311), lays down this rule:

“Authority carries with it every power necessary to accomplish object. Every delegation of authority, whether it be general or special, express or implied, unless its extent be otherwise expressly limited by some instrument conferring it, carries with it, as an incident, the power to do all those things which are necessary, proper, usual, and reasonable to be done in order to effectuate the purpose for which it was created. It embraces all the appropriate means to accomplish the desired end. This principle is founded on the manifest intention of the party creating such authority and is in furtherance of such intention.”

It certainly is within the scope of the authority" of the ordinary real estate agent to show to prospective purchasers the property which he desires to sell and to call attention to its location and make representations as to its desirability and attractive features. The trial judge, in charging the jury upon this phase of the case, stated the law applicable — we think properly — as follows:

“Now, an agent in order to bind his principal must act within the scope of his authority, that he cannot go outside of those things which naturally pertain to the employment with respect to which he is acting as agent, and I charge you that as matter of law in my judgment an agent having authority to make contracts to sell, subject to approval, lands of his principal, is acting within the scope of that authority when he exhibits to a prospective purchaser the lot or piece of land that he claims he has sold.”

Leo Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50, 34 Am. St. Rep. 350); Marx v. King, 162 Mich. 258 (127 N. W. 341); McBroom v. Malting Co., 162 Mich. 323 (127 N. W. 361).

It is the claim of the plaintiff that she was misled by the fraudulent misrepresentations of Gardiner and induced thereby to buy lot 15. It is not claimed that she had an enforceable contract as to the lot 16 which she thought she purchased, and no claim is made that she could enforce specific performance, as it is manifest that the defendant was in no position to perform, not having the title to the property. It is urged that in order to enable plaintiff to recover it was incumbent upon her to show a valid and enforceable contract, under the statute of frauds of this State, which would entitle her to lot 16. With this we cannot agree, for the reason, as has been stated, that no claim is being made to enforce such a contract, nor is it being relied upon. This action is for fraud and deceit, and it is well established that, when a person is led to make a contract to purchase property through fraudulent and false representations and claims to be injured thereby, he may either disaffirm the sale, tender a reconveyance of the property with a demand to refund the purchase money, and, if refused, may bring suit to recover the same, or affirm the sale and bring suit for damages.

The latter is the position taken by the plaintiff in this case, and the only other question for us to consider is whether the proper rule of damages was submitted to the jury by the trial court. He said with reference thereto:

“If you find for the plaintiff, the measure of damages is the difference in value between the lot she supposed she was contracting for and the lot actually covered by the contract and deed; that is, was lot 16 on January 10, 1910, of more value than lot 15, and, if so, how much? And as you answer that question so will be the amount of the verdict, if anything?”

No case or authority has been called to our attention presenting a similar state of facts, but by analogy and proper reasoning the conclusion must be arrived at that the trial judge presented the rule applicable properly.

Testimony was introduced to show that on the 10th day of January, 1910, the corner lot was worth $1,000 more than the lot adjoining, and, if the fraudulent representations were made as claimed by plaintiff, she was entitled to recover damages commensurate with the injury. She had a right to make as good a bargain as she could and was entitled to receive what was represented to her, and when this was not done she had a right to compensation for whatever loss naturally and approximately resulted from the fraud. The rule is laid down in 20 Cyc., on page 182, as follows:

“It has been frequently laid down' that in an action based on fraud in the sale or exchange of property, if plaintiff retains the title and does not offer to rescind, the measure of damages is the difference between the actual value of the property at the time of the sale or exchange, and what it would have been worth had it been as represented, or what its value was represented to be, and that this measure of damages applies without regard to the price paid or the value of the property given in exchange by the party defrauded, for it cannot always be said that plaintiff has suffered no injury because the bargain induced by the fraud was not a bad one and he has received the worth of his money. Plaintiff’s right of recovery is determined by the position which he would have occupied had there been no fraud, and he is entitled to the benefit of his bargain on this basis.”

In Aldrich v. Scribner, 154 Mich. 23 (117 N. W. 581, 18 L. R. A. [N. S.] 379), which was an action for deceit in misrepresenting the character of real estate exchanged, this court held that the proper rule of damages would be the difference between the value of the property had it answered to the representations relied upon by plaintiffs and its value as it actually was. See, also, Page v. Wells, 37 Mich. 415; Painter v. Land Co., 164 Mich. 260 (127 N. W. 739, 130 N. W. 205) ; Woolenslagle v. Runals, 76 Mich. 545 (43 N. W. 454); Yanelli v. Littlejohn, 172 Mich. 91 (137 N. W. 723); Chapman v. Bible, 171 Mich. 663 (137 N. W. 533).

Mr. Mechem, in his work on Sales (section 1843), in speaking of this rule, says:

“We are clear that the best reason is with the doctrine that, where one is deceived and defrauded, he can recover as damages the difference between the value of what he would have obtained had the statement been true, and the value of what he actually received. This represents his actual loss by reason of the fraud of the seller, on the theory that he does not rescind the contract.”

See, also, 4 Sutherland on Damages (3d Ed.), § 1171.

The case was submitted to the jury under proper instructions, and the judgment is therefore affirmed.

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


text:
    SOUTHWICK v. SOUTHWICK.
    1. Divorce — Extreme Cruelty — Evidence.
    Testimony tending to show that defendant husband constantly quarreled with his wife, insisting upon controlling all her acts, that he forbade her seeing her former friends, attempted to coerce her to convey to him property which she had, and so conducted himself as to render the marriage relation impossible, sustained a decree of divorce in favor of the wife.
    2. Husband and Wife — Fiduciary Relation — Deeds.
    When a voluntary conveyance from the wife to her husband is attacked for fraud, the burden is on him to show that the transaction was free on the wife’s part.
    3. Same.
    And where it appeared that the husband brought continuous pressure to bear on the wife and employed the relations between them to coerce her into deeding to him valuable real estate in order to have peace and escape from unkindness and quarrels, the court was warranted in setting it aside as fraudulent.

      Appeal from Wayne; Hosmer, J.
    Submitted April 25, 1913.
    (Docket No. 76.)
    Decided May 28, 1913.
    Bill by Frank S. Southwick against William D. Southwick for divorce. Complainant later filed a bill to set aside certain conveyances and the cases were consolidated. From a decree for complainant, defendant appeals.
    Affirmed.

      Clark, Lockwood, Bryant & Klein (Jasper C. Gates, of counsel), for complainant.

      Sherman D. Callender and Arthur H. Covert (Claudius B. Grant,- of counsel), for defendant.

      As to the validity of a direct conveyance by wife to husband, see note in 31 L. R. A. (N. S.) 844.

   Kuhn, J.

On the 30th day of December, A. D. 1910, a bill of complaint was filed by the complainant to obtain a divorce on the grounds of extreme cruelty, and on June 9, 1911, another bill of complaint was filed by the complainant to set aside a deed obtained by the defendant from complainant and for an accounting and other relief. These two causes were heard as one in the court below, and after a hearing a decree of divorce was granted complainant without alimony, and a decree setting aside the deed, and other relief, but reserving the matter of an accounting for further consideration, was also granted. From both of these defendant has appealed, and complainant has also filed a claim of appeal from that part of the decree denying her alimony, but this question is not now urged or discussed.

The complainant, at the time of her marriage to the defendant, July 7, 1910, was 56 years of age, and the defendant was 46. She was born and had lived all her life in the city of Detroit. She had been married and had one child by that marriage, a son, who died in 1898. During her first marriage she lived with her parents. Her mother died in 1904, her husband in June, 1909, and her father on June 6, 1910, at the age of 82 years. From childhood she had enjoyed good educational advantages, had taught music, and* for two years had been organist in a church. She had been active in church and philanthropic work, having been for several years identified with the work of the Young Women’s Christian Association. She was accustomed to move in refined social circles. At the time of the death of her father she became possessed of real estate to the amount of about $85,000 and personal property of about $10,000. This real estate consisted of the homestead of complainant’s father at the corner of Bagg street and Third avenue, two brick double houses facing on Bagg street, and a double frame house, 480-482 Third avenue.

The defendant had also been married and has two sons. He had known the complainant for many years, and after the death of his first wife he was frequently invited to the home of complainant by her first husband. After the death of her husband the defendant continued to be kind and helpful to the father of complainant and volunteered to look after extensive repairs which complainant’s father had arranged to make upon one of his buildings. This was done by defendant as a matter of friendship, and moneys were advanced by complainant to carry on this work amounting to about $5,000, and it is claimed that no attempt was made by defendant to account for these moneys until after the bill for divorce was filed, although he was often requested to do so. The defendant remained at complainant’s home during the last illness of her father for three months, taking care of him, and after his death complainant claims that, upon the insistent urging of the defendant, she consented to marry him, and the ceremony took place on July 7, 1910. It had been decided that, because of the nervous strain she had undergone owing to the death of her husband and her father, it would be advisable for her to have a rest and change, and so it was planned to take a trip abroad as a wedding trip. They left for Atlantic City on the day of the marriage, where they remained one week, and then sailed for Europe and spent about 118 days away from home. The record is replete with the incidents of this trip and might serve well as a travel book. If the trip had been made under favorable circumstances, it could not have failed to be a most enjoyable one. They visited the British Isles, Belgium, France, Germany, Switzerland, Italy, and Spain.

It would be of no particular value for the purposes of this case to set up all of the incidents complained of, but it is sufficient to say that from the very day that they embarked in New York until their return it seems to have been one constant bickering and quarreling. Complainant, because of her physical condition, was anxious to go to some place for rest, but the defendant, filled with what under other circumstances might have been a very commendable desire, seems to have been anxious to cover as much territory and see as much as he could. In this, complainant says, he did not consider at all her condition, and after a tour of the British Isles she became so ill that she was compelled to stay in Brussels' and called upon her physician from Detroit, who happened to be in Europe. The physician testified that she found complainant quite ill, and this visit gave rise to a very unpleasant incident. The physician was apparently persona non grata to the defendant, and he resented her being there, quarreled with his wife about her, and threatened to leave complainant and continue his journey alone. This discloses what seems to have been characteristic of the disposition of the defendant, his apparent desire to have his own way in everything, and his failure to show that consideration to his wife that she, it would seem, especially in view of her physical condition, was entitled to from the man who had made her his life companion and had agreed to love and cherish her.

There are many other incidents that might be arrayed to show this characteristic of defendant, but we think that the learned trial judge who heard the testimony was fully justified in the finding which he made:

“From the first there seems to have been a disposition on the part of the defendant in this case to, in a certain sense, dominate every action of his wife. There is much in the European trip, I think, which does not throw a vast deal of light to the court, and I can readily understand, perhaps, that, with the strength of 45, the defendant in this case did not appreciate the tiring effect of a continued trip of sightseeing. If there is any one thing that is wearying, that is it, and while, perhaps, in a sort of impatience and insistence that she should accompany him, there may not have been cruelty, in the later and subsequent actions of the defendant I think there was that cruelty that authorizes a court to grant a divorce. I can hardly understand the insistence of the defendant of an almost absolute control over the complainant. If he had been 45 and she 25, a certain jealousy, if it is jealousy that is apparent in this case, might be more easily explained; indeed, I do not think it was a matter of jealousy; I think it was simply a desire on his part to an absolute control of his wife, and to an end which seems to me to have been unworthy.”

On her return home he insisted on her having no friendly relations with people with whom she had associated before her marriage and to whom he had taken a dislike, and insisted upon her notifying them that they would no longer be welcome in their home. This she hesitated to do, for the reason, as she claims, that it would unnecessarily humiliate her, but suggested that he might telephone them and express to them his wishes and that she would acquiesce. This he declined to do and said, “No, madam, you are the one to do that, not me.” On one occasion the brother of her first husband was invited to their house to try to effect a settlement of their difficulties, and he testified as to what occurred, in part, as follows:

“He said the whole trouble, this trouble is brought about about the property; and Mrs. Southwick says, ‘The real truth of the matter is he wants me to give him a joint deed of all my property and I don’t want to do it;’ and he says, T don’t want you to give it to me;’ he says, T want to buy it.’ ‘Yes,’ she says, ‘he wants to buy it, and he wants to give his note for it.’ ‘Yes,’ he says, T do; I want to buy the half interest. I don’t want her to give me anything; I will buy it, and I will. I will give her my note for it, and I will pay the notes with the increased revenue, which I will receive from this property, which I will improve.’ That is the way I understood. About the income, how it should be kept as between them, he says, ‘One joint account — 100 per cent, of her love and her confidence and of her property — I want it all held jointly; no separate accounts of any kind whatsoever.’ I refrained at that time from giving any advice, except to state that, ‘You people must get together. You people must make this matter up in such a way that you will get along and it will not be made public.’
“Q. Now during that occasion, did he shake his fist at this woman? Just state to the court. ' (Objected to as leading.)
“A. He went up to her with his paper in his hand. He says, ‘Madam, I want you to understand I will not stand for it; I will not permit you for to permit these people to come into this house; I will not permit these people to come here and make this place a receiving room.’ I don’t know as that is it, but anyhow, T will not permit them to come here; I will not permit them to come here, and it is your duty as a true wife, if you love me, if you love me as you ought to love me and as I love you, you will forbid them coming here.’ She says, T never invited them here; I knew those people long before I married you, and I do not know anything but good of them, and I cannot possibly do that, but if you want to do it you can do so.’ He did not fully agree to that, but after the interview I said, ‘Now, you people just settle this matter yourselves and get together.’ And he said,/All right;’ and he took her by the arm and pulled her to him and he said, 'Well, we will try/ I don’t mean to say that he hurt her or anything of that kind, but he pulled her to him and kissed her. But he made a serious charge against her there; he made a charge of such a nature that to me, who has known her fully all these years, placed him in my eyes as a tyrant; he charged that she proposed going to live with him, but keep it quiet, and I supposed at the time that he wanted me to draw the conclusion that she was coming to him without marriage and as his mistress. That was the impression I got, and I repulsed it at once; I refused to stand for any such statement as that. She says, T would not stay under this roof another hour, and a man that will be so low and mean and contemptible as to bring such a charge as that in my presence, to my brother-in-law, I could not live another minute/ Well,’ he said, ‘you said it, didn’t you?’ and she said, ‘Yes, I said it in this way;’ and then she told. She says, T proposed coming here after our misunderstanding, and after you had attended father night and day and our neighbors and friends that I was practically compromised to you as your future wife.’ She says, T was ashamed; I was ashamed to have it otherwise; and I thought I could come in here to the home as your married wife and keep the home and mother the boys — the children —the boys, and practically live separate from each other, not as husband and wife, except in the eyes of the people.’ ‘Well/ I said, ‘now, Will, you know, you know in your heart and soul that Mrs. Southwick never intended to do a wicked deed like that.’ ‘Well,’ he says, ‘all I know is what she said.’ ”

Defendant seeks to explain this incident and give it a different meaning, but if the witness is to be believed, and a careful reading of his testimony shows no bias but an evident desire to tell the facts, this insinuation made in the presence of her brother-in-law, in view of the character of the complainant, was, it seems to us, in itself such extreme cruelty as would justify the court in granting a decree. The troubles between the parties continued until December 21st when complainant left her home.

On the 5th day of December, after considerable wrangling about the property matters, she consented to go to a lawyer’s office and did there execute a deed of the house and lot on Third avenue to the defendant. It appears that this property was worth approximately $8,500. The lawyer who drew the deed testified as follows:

“Q. During the time the parties were there and before the drawing of the deed, was the question of what kind of a deed should be made discussed?
“A. Yes, sir. Well, I don’t know as I can tell the court precisely what was said; the substance of it was that Mr. Southwick desired a warranty deed, and I advised Mrs. Southwick that there was no occasion for giving a warranty deed; that, inasmuch as this was a gift of the property to him, I thought he ought to be satisfied with taking whatever she had in it, and had no call to covenant for the title. That remark was made in the presence of Mr. Southwick. I understood he acquiesced in taking the quitclaim deed; he was present all the time; we were all talking together there; we were all in the office together. And then this deed was drawn.
“Q. Was there any valuable consideration spoken of in your office as being paid for this conveyance?
“A. No, sir; nothing more than— all that was said was, Mrs. Southwick, for the reason of making the deed, Mrs. Southwick said she wanted to give this property to Mr. Southwick in payment of her appreciation of the kindness and attention which he had shown to her father.
“Q. Now what was said by Mr. Southwick, if anything, about the purpose with reference to this title?
“A. Some time before they left the office, and I think after the. deed was completed, as well as I recall it now, Mr. Southwick told me that it was his intention to enlarge and improve this property and to put the title in himself and his wife jointly.
“Q. At the time these parties were in your office, did you observe the condition of Mrs. Southwick and her manner and attitude with reference to this?
“A. Yes, it made an impression on me.
“Q. Will you state to the court what that attitude and conduct — what the impression that you got from it was?
“A. I derived the impression that .she was not very happy in the making of the gift, and it was not absolutely spontaneous; that is the impression that I gathered from the whole course of events in the office, her manner and appearance, but nothing was said about it in any way, shape, or manner other than just as I said before.
“Q. How vivid was that impression in your mind?
“A. Well, it remained strong enough on me so that I mentioned it to my wife that night.
“Q. Can you describe more fully her appearance and what occurred there that gave you that impression?
“A. No, sir; I could not, except as I say there was a look of what seemed to me a sort of repression or something; I could not exactly defiiie it; it would be a very difficult thing for me to define just what it was; simply to say that it left that impression upon my mind.”

After the deed of this property was obtained, complainant requested that she be allowed to manage her own property and that he might attend to what she had given him, but this, she claims,' he also refused to do, and it resulted in further quarreling, which finally led to the separation.

We are impressed with the fact that a great deal of the testimony heard upon the hearing was immaterial and irrelevant, and many of the incidents complained of, taken by themselves, seem trivial and were of such a character as might occur in almost any family; still the conclusion cannot be escaped that upon the whole record, considering only those facts which should properly be considered, a case has been made out. The result of defendant’s conduct from within a few days after the marriage up to the time of the separation was to practically destroy the marriage relation. As Justice Cooley said in Briggs v. Briggs, 20 Mich. 34, 45:

“Our conclusion upon the whole case is that such a case has been made out as to warrant a divorce. The statute provides that the divorce may be decreed ‘for the cause of extreme cruelty, whether practiced by personal violence or by any other-means/ We are not required, therefore, to look solely at the violence employed by defendant, but in disposing of the case may properly have regard to the general result of his conduct. That conduct is properly to be characterized by the result which it has produced upon the marriage relation and upon the comfort of the complainant therein. A single act of causeless violence may be overlooked if its consequences are evanescent, and leave the relations of the parties substantially undisturbed ; but a long-continued course of conduct, which, without the fault of the wife, results in making the marriage relation unendurable and in driving her from her husband’s house, is clearly, we think, a case of extreme cruelty within the meaning of the statute. In its effect upon the marriage relation, cruel conduct, which has effectually destroyed it, cannot be regarded as other than extreme.”

Warner v. Warner, 54 Mich. 492 (20 N. W. 557) ; Walsh v. Walsh, 61 Mich. 554, 560 (28 N. W. 718) ; Bailey v. Bailey, 121 Mich. 236 (80 N. W. 32) ; Kraft v. Kraft, 160 Mich. 654 (125 N. W. 693).

With reference to the decree of the court below setting aside the deed of the property in controversy, it would seem sufficient to state the rule thát:

“When the question of fraud is raised in connection with the validity of the wife’s conveyance to her husband, the burden is upon the husband to show that the same was fair and free and voluntary on her part.” 21 Cyc. p. 1293.

The property matters were the subject of controversy from the very first, and defendant insisted on managing complainant’s affairs. She testified with reference to his conduct as follows:

“I felt myself getting weaker every day under his treatment because he was so constantly ugly, and I could not sleep at night, and I would get up in the middle of the night in a cold perspiration thinking of what I had gone through and what was before me; I did not know what to do. And about this time he again began about the joint deed, and I went upstairs with him to talk business, and he said, and he shut the door and he began talking about the joint deed, and really I was in such a condition and I was so utterly hopeless; I could not see my friends and could not go anywhere, and I hardly knew what to say or do; anything for peace; I would have been so glad to have given all if it only could have brought peace so that we could have lived together, because I dreaded so going out alone. So when I was up there he commenced with these joint deeds and I finally told him —well, I thought to' myself — $50 a month I would not freeze; I could get enough to keep me warm with that, if I had to keep a house; I did not know how far $50 would go, but I thought possibly I could live on it, and I said if he would guarantee me $50 a month I would put the rest of it in joint deeds and he could manipulate it. I knew that meant all to me because it was very uncertain whether there would ,be anything left. And he grew very angry and walked up and down and pounded the table and said he would have 100 per cent, or nothing. He wanted to have the whole thing. He would not be a valet to any woman.
“Q. He would not be a valet to any woman?
“A. And he did not want me to hold my property over his head as I had over my husband John’s; and that was as-untrue as everything, as anything, because I had had no property to hold, but as he did not take my offer, I guess it was my father’s — my old father’s spirit came into me and I said, ‘Well, then, you will have nothing.’ And the abuse then began; he began then abusing me; when I said that he would have nothing, and told me how mean I was and how — about the same old tirade again — and how much he had done; how much he had done for me, and when was I going to show my hand; then he would remind me of the things he had done for me and when was I going to show my hand; what was I going to do for him, and finally—
“Q. What did he say about your things and so on?
“A. He said that I was false; he said that I had a damn false tongue and I had a false face and a false shifty eye, and I was as false as my false hair. And I stood there for quite a while and I could not endure it any longer and I went out and then he would continue his tirade in songs, singing a song about his little devil. He made it up; it was improvised, about his little devil and what she did and, etc. He would keep that up sometimes until after he had returned and when I was downstairs.”

With reference to her state of mind at the time of conveying the property, complainant testified:

“I had no more money, and yet he wanted these houses changed into rooming houses, and it did not seem to me the proper thing to do, and he said if he got the money by mortgages; I knew how long my father had been gathering these places and how I and my husband also, and it seemed to me that I could not have mortgages laid on them at that time, and so I was so disheartened and so worn out and weary, my heart seemed to stop; I suppose it was the nerves of the heart; I could not breathe, and I really did not know half the time whether I was— It seemed to me that I was almost dying, and when he spoke, commenced about the houses, I thought to myself, ‘Well, perhaps if I would give him one and let him use his own money then he would not talk any more about my owing him so much, and also would perhaps go to work and let me alone, and we might have a little peace;’ and with the thought of that in mind (the thought that I might stay with him a little longer and have a little peace at home) I told him, ‘Now, I will give you one of those houses.’ ”

The record in this case clearly brings the transaction within the principle announced by this court in Stiles v. Stiles, 14 Mich. 72, and commented upon by Justice Campbell in Witbeck v. Witbeck, 25 Mich. 439, 442, as follows:

“It seems to be supposed by the defendant that, in order to invalidate an agreement between husband and wife, she must make out the same full and positive showing of actual fraud or duress as against a stranger. The law certainly does not prevent persons in this confidential relation from doing, without urgency, of their own accord, and under the natural impulses of kindness and affection, such generous acts as are the results of mutual confidence and good will. But the same principle which encourages confidence protects it by preventing any profit to be gained from abusing it. The law recognizes the fact that a married woman is easily subjected to a species of coercion, very much more effectual than any ordinary operation of fear or fraud from strangers. It has always been found necessary to examine jealously into all transactions whereby the husband gets an advantage over the wife, not plainly spontaneous on her part. Any undue advantage gained by the use of the marital relation is a legal fraud on the wife, which courts of equity will not allow to stand to her prejudice. We are not called upon, in the present case, to weigh any trifles, for it is very plain that defendant had determined to let no scruples of delicacy or good feeling interfere with his scheme, and that, when the wife finally gave way, it was because there was no other way to purchase peace. To use her own expression, as she was going over to Holland, to make the papers, she did it ‘rather than live in torment all the while/ ”

We are satisfied that the defendant obtained the deed in question by coercion exercised as a result of the relationship that existed between them, and it was not the free, fair, and voluntary act of the complainant. The court below arrived at the proper determination in setting aside the deed. Provision is made in the decree for an accounting between the parties in relation to complainant’s moneys intrusted to him and with reference to the labor performed and improvements made by defendant and providing for a lien upon the property, if any sum is found to be due said defendant, but denying defendant the right to recover for any services rendered in improving and repairing the Bagg street property. No alimony is allowed in the divorce decree.

With all of this we agree, and both decrees are therefore affirmed.

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


author: Brooke, J.

text:
    DENNIS v. WRIGLEY.
    1. Schools and School Districts — Statutes—Provision for Transportation.
    In exercising the discretion vested in the voters of a school district by Act No. 83, Pub. Acts 1909, § 20, subsec. 11, to discontinue school for a year, and providing that the “children resident therein shall be sent to another school or schools, and when such action has been taken the school board shall have authority to use any funds, except library funds, in the hands of the treasurer, tb pay the tuition and transportation of all such children, and if necessary vote a tax for such purpose,” the school board are bound to furnish transportation, and may determine the amount to be paid therefor: the performance of such, duty may be enforced by mandamus.
    2. Statutory Construction — Permissive or Directory Provisions — Schools and School Districts.
    Merely permissive language employed in a statute may be construed as mandatory if public interest or protection to the rights of third parties, or the better interpretation of the enactment so requires.
    Certiorari to Shiawassee; Miner, J.
    Submitted April 22,1913.
    (Calendar No. 25,528.)
    Decided May 28, 1913.
    Mandamus by George Dennis against Archibald Wrigley and other members of the school board of district No. 11, Caledonia and Shiawassee townships, Shiawassee county, to compel respondents to provide transportation for relator’s children, under Act No. 83, Pub. Acts 1909. An order was entered granting the writ; respondents bring certiorari.
    Affirmed.

      John T. McCurdy and Leon F. Miner, for relator.

      A. L. Chandler, for respondents.
   Brooke, J.

Relator filed his petition in the circuit court against defendants, who are, respectively, director, assessor, and moderator of fractional school district No. 11 of Caledonia and Shiawassee townships, Shiawassee county, Mich. He shows that he is a resident of said school district and is the father of two children of school age, viz., Edith Dennis, nine years old, and Helen Dennis, seven years old. He further shows that at an adjourned annual meeting of the said school district it was resolved to close the school for a period of one year; that thereafter a majority of the school board acting for and on behalf of the school district made arrangements with school district No. 1 of Shiawassee township to provide school for such school children as were residents of said district No. 11; that the schoolhouse in district No. 11 is about one-half mile from his residence, while that in No. 1 is about two miles distant therefrom; that he applied to said school board for transportation for his children to and from district No. 1, which was refused. He prayed for a writ of mandamus to compel the board to furnish said transportation. Respondents answered said petition admitting, as alleged, the residence of the relator, the ages of the children, and, practically the relative distances of the two schoolhouses. They further answer:

“Fourth. Answering the allegations in paragraph 4 of said petition, these respondents deny that a majority of the school board acting for and on behalf of said district made arrangements with school district No. 1 of the township of Shiawassee to provide school for such children as were residents of said school district No. 11 fractional, but that the arrangements of said school board were not as set forth in said petition, but were as follows: That at the annual meeting of said school district, which was held on the second Monday of July, 1912, it was ascertained by the patrons of said district in the meeting then and there held that there would not, in all probability, be more pupils to attend school in said district than those of said plaintiff, and that upon information and belief of these respondents the said plaintiff at that time was contemplating changing his location and residence, and that it was probable that even the children of said plaintiff would not be residents of the said school district for the ensuing year, or at least for a part of said school year; that the few children of school age belonging to said district, being about 6 or 7 in number, were to be sent away to school by their parents and guardians to Owosso or Corunna for the said ensuing school year; and that the advisability of conducting a school for said year was discussed at said regular meeting; and that said meeting was then adjourned for two weeks, at which adjourned meeting action was taken, and it was duly voted to close the school of said district for the ensuing school year; that about the middle of the month of September, 1912, in order to ascertain what the district desired to do with reference to providing schooling for plaintiff’s children as aforesaid, the said school board called an informal meeting of the legally qualified voters of said district, which meeting was held, and a goodly number of the legally qualified voters of said district were in attendance; that a vote was taken at such meeting for the purpose of guiding and advising the said school board what, if anything,, to do with reference to said children; and that the vote at said meeting was in favor- of setting aside the sum of forty (40) dollars for the purpose of providing in part for the transportation for said children of plaintiff’s for the school year, being a period of ten months; that, following said meeting and advisory vote as aforesaid, said school board went and made arrangements with said school district No. 1 of the township of Shiawassee as aforesaid for the payment of the tuition and for the privilege and permission of plaintiff’s said children to attend said school, and also said school board in pursuance of the determination of said special meeting, not because they considered that they were legally bound so to do, or not because they considered it a duty capable of being lawfully performed by respondents, but simply for the purpose of avoiding trouble and possible litigation and as providing a gift for plaintiff, voted to set aside the sum of forty (40) dollars to assist in defraying the expenses of the transportation of the plaintiff’s said children to and from school district No. 1, as said plaintiff had been demanding five (5) dollars a week for such transportation and then afterwards came down to three (3) dollars a week and threatening to make trouble if not paid.”

Upon a hearing the mandamus was issued as prayed. Respondents review this action by certiorari.

The law applicable to the case will be found in ,Act No. 83, Public Acts of 1909, § 20, subsec. 11 (4 How. Stat. [2d Ed.] § 9886). After conferring power upon the qualified voters of a school district to determine (within certain specified limitations) the length of time schools shall be taught, the section provides:

“Provided, that each school district may at an annual meeting vote to discontinue school in the district for the ensuing year and determine that the children resident therein shall be sent to another school or schools, and when such action has been taken the school board shall have authority to use any funds, except library funds, in the hands of the treasurer to pay the tuition and transportation of all such children, and if necessary vote a tax for such purpose.”

It is the contention of respondents:

(1) That the law is not mandatory.
(2) If the law is mandatory, then the amount to be paid should be determined by the board.

The proviso as a whole is plainly permissible in character; but, if the school district exercises the power conferred to discontinue the school, we are of opinion that the duty to furnish tuition and transportation to resident pupils becomes mandatory.

The rule of construction is generally stated in 29 Cyc. p. 1432, as follows:

“Statutes imposing duties and conferring powers on officers are either mandatory or directory. Permissive words in a statute are construed as mandatory where the exercise of the power granted is necessary to protect the. public interest or the rights of third persons.”

In Ex parte Banks, 28 Ala. 28, it is said:

“The word ‘may’ in a statute can create a right; that, whilst it is permissive merely, where the public or third persons have no interest in having it considered as imperative, yet it is peremptory, where it is used in a statute to clothe a public officer with power to do an act, which ought to be done for the sake of justice, or which concerns the public interest, or the rights of third persons. Conferring the power on the officer to do such act, creates a right in those for whose benefit the power was conferred; and they may insist on the execution of the power, as a duty, ‘though the phraseology of the statute be permissive merely, and not peremptory.’ ”

Lewis’ Sutherland Statutory Construction (2d Ed.), vol. 2, § 636, after laying down the rule practically as above stated, continues:

“A direction contained in a statute, though couched in merely permissive language, will not be construed as leaving compliance optional, when the good sense of the entire enactment requires its provisions to be deemed compulsory.”

The Constitution, art. 11, § 1, provides:

“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

This language is taken from the ordinance of 1787. The reassertion of this doctrine after the lapse of more than a century and a quarter, coupled with the fact that legislation in this State upon the subject of education has from the beginning been of the most liberal character, indicates a settled purpose on the part of the State to provide, foster, and protect educational facilities for all.

The Constitution, art. 11, § 9, provides:

“The legislature shall continue a system of primary schools, whereby every school district in the State shall provide for the education of its pupils without charge for tuition; and all instruction in such schools shall be conducted in the English language. If any school district shall neglect to maintain a school within its borders as prescribed by law for at least five months in each year, or to provide for the education of its pupils in another district or districts for an equal period, it shall be deprived for the ensuing year of its proportion of the primary school interest fund.”

As to the history and growth of our educational system and the policy of the State in relation thereto, see Stuart v. School District No. 1, 30 Mich. 69.

Concerning the second point urged by respondents, it is sufficient to say that they undoubtedly possess the power to determine the amount to be paid for transportation. They are bound to furnish the transportation, and as an incident to the performance of this duty they are clothed with the necessary power.

The order of the circuit court is affirmed.

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


text:
    GIBB v. MINTLINE.
    1. Specific Performance — Equity.
    Specific performance is not a remedy to wliicli a party is absolutely entitled: if tbe contract is equitable, certain and capable of specific performance, tbe discretion of tbe court may be exercised in complainant’s favor.
    2. Same — Fraud—Concealment.
    A contract not fair or obtained by unscrupulous practices by overreaching or concealment of important facts will not be enforced specifically.
    3. Same.
    On demurrer to complainant’s bill, based on the ground that complainant did not disclose to defendants the purpose for which he intended land included in his contract of purchase, and that such purpose was a right of way of an interurban railway which would operate as a detriment to neighboring property of which defendants were owners, complainant’s bill sufficiently stated a case, although it should be made to appear, in order to sustain complainant’s right to specific performance under a contract containing a condition that the land should not be used for any purpose that would interfere with or be detrimental to such other property of the vendors, that the intended purpose was not concealed or would not have the detrimental effect claimed by defendants.
    4. Same — Adequate Remedy at Law.
    Nor is it a sufficient reply to the defense interposed that defendants may enjoin a breach of the contract if complainant should so use the land as to decrease the value of the adjacent property owned by them, or that the defendants may bring an action for the breach of the agreement: equity will not remit the parties to their action at law or compel them to raise the question in another suit.
    Appeal from Kalamazoo; Knappen, J.
    Submitted April 15, 1913.
    (Docket No. 63.)
    Decided May 28, 1913.
    Bill by Walter W. Gibb against Fred A. Mintline and others for specific performance. From an order overruling a demurrer to complainant’s bill, defendants appeal.
    Affirmed.

      George W. Meehem and Bernard J. Onen (Jackson & Fitzgerald, of counsel), for complainant.

      Samuel W. Oxenford (Fred A. Mills, of counsel), for defendants.
    Complainant files his bill of complaint against defendants to compel specific performance of the following contract:
    “January 11, 1912.
    “Received from Walter W. Gibb fifty ($50.00) dollars to .bind bargain for sale of the lands herein described by us to him, the full purchase price being eight thousand ($8,000.00) dollars. The balance of said purchase price to be paid on or before ten days from the date hereof. The undersigned reserve the barn building said lands on' the south part thereof. The lands being described as commencing at the northeast corner of lot six (6), block twenty-two (22), running thence west 179 feet and 9 inches; thence south on a line parallel with west line of Harrison street 148 feet 5 inches more or less to north line of alley; thence east to within 12 feet of the west line of the Terrace building; thence north to a point 12 feet north and 12 feet west of said terrace; thence east to west line of Harrison street; thence north on west line of Harrison street to place of beginning, meaning to reserve the terrace property and 12 feet of land on the west and north side thereof. Said second parties, the undersigned, to give possession of said lands except the store property, as soon as deed is delivered, with abstract of title showing good and merchantable title. Said undersigned to have possession of the store property until June 1st, 1912. Said Walter W. Gibb hereby agrees not to build any building, or use said lands for any purpose that will in any way interfere with or be detrimental to the Terrace property or the Homestead property on the west, or that will in any way lessen the value of said adjoining lands or property, and that this provision may be incorporated in the deed for said lands.
    “Fred A. Mintline.
    “Edward B. Mintline.
    “Walter W. Gibb.”
    Section 7 of the bill of complaint is as follows :
    “(7) That your orator entered into said contract to purchase the aforesaid lands and premises as a part of a private right of way for an interurban railway; that other land had been purchased to be used as a private right of way in connection with the lands and premises described in said contract, and the land described in said contract lies between such other lands and forms a part of a continuous private right of way for a proposed interurban railway; that the lands so purchased will be of no value whatever to your orator for the purpose for which same was purchased unless the defendants are compelled by the decree of this court to specifically perform the aforesaid contract.”
    To the bill of complaint defendant Fred A. Mintline interposed the following demurrer:
    “(1) That the amended bill of complaint is without equity.
    “(2) That the purchase price stated in Exhibit A, attached to the amended bill of complaint, was not paid as provided in said Exhibit A, or its nonpayment excused.
    “(3) That the purchase price stated in said Exhibit A was not paid within a reasonable time after the time stated in said Exhibit A.
    “(4) That said Exhibit A is too uncertain and indefinite to entitle the complainant to a specific performance of the same.
    “(5) That said Exhibit A is too uncertain and indefinite as to the purposes for which said land should be used to entitle the complainant to a specific performance of the same.
    “(6) That said Exhibit A is so uncertain and indefinite as to the purposes for which said land should be used as to show that the minds of the parties did not meet in a contract which can be specifically performed in this court.
    “(7) That said Exhibit A is so uncertain and indefinite as to the purposes for which said land should be used that the defendant, when he learned that the same was to be used for the purpose stated m the amended bill of complaint, was fully justified in refusing to execute the same.
    “(8) That, under the allegations of said amended bill of complaint, the procuring of said Exhibit A by the complainant for the purposes stated in the amended bill of complaint was inequitable and unconscionable.
    “(9) That the attempt to acquire the defendant’s land under and by virtue of said Exhibit A, for the purposes stated in the amended bill of complaint, is inequitable and unconscionable.
    “ (10) That the specific performance of said Exhibit A cannot be made mutual by the decree of this court.
    “(11) That the complainant has an adequate remedy at law.”
    The demurrer having been overruled, defendant Fred A. Mintline appeals.
   Brooke, J.

(after stating the facts). The right to the equitable remedy of specific performance is not absolute, even in that class of contracts in which the remedy is invoked. The exercise of the power by the courts is said to be discretionary in the sense that the discretion exercised is judicial and governed by equitable principles and rules. To entitle one party to specific performance of a contract against the other party thereto:

“The contract must be certain, unambiguous, mutual, and upon a valuable consideration; it must be perfectly fair in all its parts; free from any misrepresentation or misapprehension, fraud or mistake, imposition or surprise; not an unconscionable or hard bargain; and its performance not oppressive upon the defendant; finally, it must be capable of specific execution through a decree of the court.” Pomeroy on Specific Performance of Contracts (2d Ed.), p. 57.

Courts will always refuse relief where the contract is not- fair or where it is obtained by sharp or un-. scrupulous practices by overreaching or by concealment of important facts. Rust v. Conrad, 47 Mich. 449 (11 N. W. 265, 41 Am. Rep. 720), and cases cited; Rathbone v. Groh, 137 Mich. 373 (100 N. W. 588) ; Pomeroy on Specific Performance of Contracts (2d Ed.), p. 244, and cases cited in note; Waterman on Specific Performance of Contracts, § 158; Fry’s Specific Performance of Contracts (4th Ed.), p. 307; 36 Cyc. p. 603.

It is perhaps inferable from the contract, read in the light of section 7 of the bill of complaint, that complainant did not disclose to defendants the purpose to which he intended to devote the land. It is not clear, however, that such is the fact, and we are of opinion that final disposition of the rights of the parties should not be made without a fuller knowledge of the facts than is afforded by the pleadings before us. It is possible, too (even conceding that the proposed use was concealed from defendants), that complainant can produce convincing evidence upon the trial that such use will neither “interfere with,” be “detrimental to,” nor “in any way lessen the value of,” defendants’ adjoining lands, though of this we have grave doubt.

Specific performance should not be decreed unless it is made to appear that defendants were duly apprised of the purpose to which the lands described were to be devoted, or that such use would not constitute a breach of complainant’s covenant. To compel defendants to execute the conveyance, leaving open the question of their right to equitable relief by way of injunction, or relief at law in an action for breach of the covenant, would simply be to open the door for further litigation. The other grounds of demurrer are, in our opinion, not well taken.

The decree overruling the demurrer is affirmed, with costs, and defendants may answer within 15 days.

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


text:
    PEOPLE v. DUPREE.
    1. Criminal Law — Statutory Assault — Rape—Evidence.
    Where respondent’s counsel, in a prosecution for assault with intent to commit rape on a child of 13 years of age, inquired of a school teacher what age the prosecutrix had given at the time she attended school to the witness, and it appeared that the testimony of the witness would have covered the contents of a record which had been destroyed, and was made up from statements of a person unknown to witness, the answer was correctly excluded.
    2. Same — Charge to Jury.
    Instructions to the jury tending to explain or excuse testimony of the prosecutrix and her appearance or embarrassment on the stand, portions thereof tending also to enhance the weight of testimony given by certain witnesses for the prosecution and intimating that the accused was of a class of evil doers who desire to break the law in secret, was argumentative, harmful, and invaded the province of the jury.
    3. Same — Indecent Liberties — Information.
    Counts for attempted rape and for taking indecent liberties with a female under U years of age, may be joined in one information and both include assault and battery; testimony having a tendency to prove the major offense was not necessarily inconsistent with a conviction for the other crime charged where the testimony of the prosecutrix tended to establish the first accusation and the other witnesses for the people gave testimony in support of the lesser offense.
    Exceptions before sentence from the superior court of Grand Rapids; Stuart, J.
    Submitted April 17, 1913.
    (Docket No. 128.)
    Decided May 28, 1913.
    John Dupree was convicted of taking indecent liberties with a female under 14 years of age.
    Reversed.

      Louis T. Herman, Assistant Prosecuting Attorney, for the people.

      Dunham & Dunham and John J. McKenna, for respondent.
   Brooke, J.

The first count of the information in this case charges the respondent with having committed an assault upon a girl 13 years of age with intent to commit rape. The second count charges the respondent with taking indecent and improper liberties with the person of said child without committing, or intending to commit, the crime of rape. Respondent was convicted under the second count and has removed his case to this court for review upon exceptions before sentence.

The respondent, a man of 68 years of age, had become acquainted with the child through buying papers from her upon the streets of Grand Rapids. On June 22, 1911, respondent went to Muskegon, where he claims to have met the girl by chance. He says he urged her to return to her home in Grand Rapids, but that she refused to do this because of alleged bad treatment from her parents. It was there agreed between them that respondent should secure a room for her and that she should return to Grand Rapids the following day. This she did not do, but did return on Saturday, the evening of the 24th. Respondent met her soon after she alighted from the car and, having rented and paid for a room on Bostwick street, he immediately accompanied her there. He introduced the girl to Mrs. Jones, the landlady, as his niece, and made an appointment to call on Monday, the 26th, at about 2 o’clock p. m., for the purpose, as he testified, of taking the girl to a department store in search of employment for her. On the following Monday respondent met the girl down town, and one Kennedy, a private detective, noticed them conversing together. Kennedy’s suspicion being aroused, he followed the pair (the girl walking some distance in advance of respondent) to the house on Bostwick street. Respondent did not enter the house with the girl but followed her in after a short interval. Kennedy, in company with a Mr. Randolph, for whom he had sent, followed respondent into the house after waiting 10 or 15 minutes. Passing immediately upstairs they entered the room, which they had been advised was occupied by the girl. It is their claim (denied by respondent) that the door was locked and that they broke it open. Upon entering, respondent was found with his hat, coat, vest, collar, and tie off. The girl, likewise, was partially disrobed. Kennedy sent for a reporter, and upon his arrival took the girl into another room and there questioned her in the presence of the reporter. The respondent was at once arrested. Upon the examination before the magistrate the girl, in detailing what had occurred on the day in question, and upon the preceding Saturday, gave accounts so at variance with each other as to render her testimony practically valueless, except as to those matters in which she is corroborated by circumstances or by the testimony of other witnesses. Respondent claimed never to have laid his hands upon the girl, and insisted that his actions in the premises were induced by humane and charitable motives. He attributed his own condition as to dishabille to the excessive heat, and that of the girl to the fact that she was preparing to accompany him down town in a search for work. He claimed that she was changing her dress behind a screen in one corner of the room at the moment the intruders entered the room. According to one version of the facts given by the girl, the respondent (having in mind the girl’s age) should have been convicted of rape, had he been so charged. According to another version, an assault with intent to commit that crime was clearly proven. According to still other statements of the child, respondent might be found guilty of taking indecent liberties without intent to commit the crime of rape. Testimony introduced on behalf of respondent tended to establish the fact that he was, at the time the alleged offense was committed, impotent and had been in that condition for some time. The circumstances and the evidence offered by the people, so far as either tended to support the statements made by the girl, indicated that, if guilty of any offense, respondent was guilty of the lesser crime.

There are 28 assignments of error which are discussed by respondent’s counsel under the following heads:

First. Errors relating to the admission and rejection of testimony, and rulings of the court thereon.

Second. Errors contained in the charge of the court.

Third. Errors relating to the refusal of the court to allow respondent’s motion to arrest judgment, and his reasons therefor.

The first assignment of error is based upon a ruling of the court admitting testimony relative to the conversation between Kennedy, the girl, and witness Swanwick in the presence of respondent in another room. The answer admitted over objection was as follows:

“Not so far as I heard; no, sir. She made some statements that constituted a story, I guess. She first made statements in response to Mr. Kennedy’s questions in the presence of Mr. Munshaw. I was present when the statements were made. Mr. Loucks came in during the course, I guess. I think I heard all that was said.”

It will be noted that the witness did not relate any of the conversation. Respondent was not prejudiced by the testimony.

The next assignment of error argued on behalf of respondent relates to a ruling of the court excluding the answer to the following question propounded to Miss Brown, a school teacher, at whose school’the little girl had attended.

“Q. Do you know what she gave the age of her birthday?”

The subsequent examination of this witness discloses the fact that respondent sought to have her testify from memory to the contents of a record which had been destroyed. It likewise appeárs that the witness had no knowledge as to who had furnished the information contained in the record. The testimony was properly excluded.

Respondent assigns many errors upon the charge of the court. Some portions of the charge follow:

“Now there are just a few rules of law that I want to give you, but I think before taking those up I will take up one or two other things. I want to refer to two or three or one or two claims that have been made. I don’t like to comment upon the arguments of counsel, and I don’t do it as a rule, unless I fear that it may be misunderstood and give you the wrong impression and under those circumstances I simply refer to it to correct anything that might appear to be a wrong impression. It has been argued here, speaking of these counts, that under the testimony of the girl, who said here that he had intercourse with her, that if she told that story to the prosecutor he should have prosecuted for rape and not for assault with intent to commit rape or the other offenses, and that the prosecutor did not believe the story and did not dare to charge that offense. Now, of course, whatever may have prompted the prosecutor in charging the offense I don’t know, but where there are various offenses committed, or various statutes may apply to what took place, of course, it is left to the judgment of the prosecutor to determine upon what charge he will proceed. But I don’t know why he would not dare to charge rape. He could have put in, as I understand the law, a charge for rape here in connection with the other two counts; the three go together and could all be put in the information, and a failure to prove one does not necessarily affect the proof upon the other counts. In criminal cases and in civil cases the pleadings are mere statements in different ways of your form of action, and for fear you may not hit it one way you put in another to make it sure. You do not know what the proof will be until you get to it, and so it is natural to charge offenses before the trial in various ways, and the prosecutor would be entirely justified in charging all three of these offenses here; in fact, under the charge of rape the charge of assault with intent to commit rape can be found even although it is not charged. Then I want to refer to one or two other matters, and first the testimony of this little girl. Now, bear in mind that in trying a case of this kind the character of the witness as to chastity and morality is not to be considered. Of course, the character of any witness in regard to truthfulness and veracity is always an important matter to be considered, and I charge you in regard to it that the matter of chastity and morality does not cut any figure, except as it might possibly affect her truth and veracity. No matter how bad the girl is morally, if this took place at her instigation and by her bringing about, and you are satisfied of that fact from the evidence as to either one of these charges I have spoken of, the respondent is guilty. And I simply call your attention (as there has been a claim of considerable contradictions on the part of the witness, the little girl) that in considering her testimony you must, of course, consider her age. At the time this testimony was given in the lower court it is claimed by the people she was yet under 13 years of age.
“Mr. Herman: Under 14. She was 13.
“The Court: Yes.
“Mr. Herman: I thought you honor said under 13.
“The Court: The charge is she was under 14, or wasn’t she?
“Mr. Dunham: 13 in November before.
“The Court: Well, pardon me. She was a girl then 13 years of age, if the claim on the part of the prosecution is found to be correct, and I simply call your attention to the fact of her age, her natural embarrassment, if she had any sense of decency or anything left, and probably her first experience (I don’t know that), her first so far as this is concerned, in a crowded courtroom with a lot of people gazing at her, and attempting to detail an affair of this kind, that it would naturally somewhat embarrass her and perhaps confuse her, and then the fact that in being questioned by the one side, the people’s attorneys, when she was simply told to state what took place, while on the other hand the respondent’s attorneys can ask leading questions and put questions to her which may be suggestive. Now, of course, I am speaking of that not to say that it took place, gentlemen, but it is one of the things that should be considered in making up your verdict, and the proposition is up to you to determine whether she was lying about it or whether these contradictions occurred in some other way. It has been commented upon that she was kept away from being interviewed. Now, under some circumstances, unless improper influences are brought to bear upon her by the people, that is not an improper act, to keep her from being interviewed, because in many cases people charged with crime would go to any length to get witnesses away or to change their testimony, and, • if they are kept where they cannot be approached by people interested in having the case fall through, it is not improper in itself if she has not been improperly coached and put up to tell something untrue by the people having her in charge. Of course, that is for you to determine, whether these officers, the people who have had her, have been doing improper things in that regard. Comment has been made and considerable argument and heat has been shown in this case that it should be started by a private detective. There is a feeling, I am sure, in the community by quite a large class of people against detectives, and especially private detectives. I am inclined to think that that feeling is largely with people that, perhaps, may fear they would be caught some time in some improper act, for I am sure that if people are law-abiding they need not have any fears from private or public detectives or any other kind of detectives. If a man is not inclined to break the law, he never will be meddled with, or very rarely, it seems to me, and the fact that people when they are out attempting to get evidence of the fact that crime is being committed— We all know that a great many crimes are committed, and they are committed secretly; people in committing crimes do not go on the corner of Monroe street and tell anybody what they are doing, but they are usually committed in secret, and it is always charged that police officers ought to go with their uniform on and sheriffs with their badge on the lapel of their coat and tell people, before they do anything, what they are about; and the fact that detectives do sometimes have to employ a ruse to get into places where crime is being committed should not be considered as anything improper if their motives are right in doing it; and the mere fact that they conceal themselves or their identity is not a fact to be found fault with.” •

It is urged that these instructions were erroneous for several reasons. We are of opinion that the exceptions thereto are well taken. The language used is clearly argumentative. The discrepancies in the testimony of the girl, the people’s principal witness, are minified and measurably excused. The general remarks of the court as to private detectives, law-abiding people, and those inclined to break the law were in our opinion erroneous. The jury could scarcely fail to gather therefrom a certificate of character for the detective witnesses and an impression that in the opinion of the court the respondent was one of that class of evildoers who entertain a feeling against detectives because they desire to break the law in secret.

It is the exclusive province of the jury to weigh the testimony and to draw inferences therefrom, and argument upon the facts by the court is not permissible. People v. Gastro, 75 Mich. 127 (42 N. W. 937); People v. Clarke, 105 Mich. 169 (62 N. W. 1117); People v. Holmes, 111 Mich. 364 (69 N. W. 501); People v. Brown, 142 Mich. 622 (106 N. W. 149); People v. Durham, 170 Mich. 598 (136 N. W. 431).

It is finally urged on behalf of respondent that the evidence on behalf of the people tended to show the guilt of the respondent under the first count only, and that it was inconsistent with his guilt under the second count. The two counts may properly be joined in one information, and both include an assault and battery. People v. Partridge, 86 Mich. 248 (49 N. W. 149) ; People v. Sheffield, 105 Mich. 117 (63 N. W. 65). As before pointed out, some portions of the girl’s testimony, if believed, would indicate respondent’s guilt of the crime of rape, or at least with an assault with intent to commit that crime, while other portions might very well lead the jury to believe he was guilty only of the lesser offense charged. Such evidence as the people introduced, outside the girl’s testimony, tended to show guilt under the second count rather than under the first.

The judgment is reversed and a new trial ordered.

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