text:
    MARTIN v. MILWAUKEE, BENTON HARBOR & COLUMBUS RAILWAY CO.
    Master and Servant — Action eor Services —Employment-Question for Jury—Evidence.
    In an action for services, evidence examined, and held to authorize the submission of the question of plaintiff’s employment by defendant to the jury.
    Error to Berrien; Coolidge, J.
    Submitted October 7, 1904.
    (Docket No. 37.)
    Decided November 9, 1904.
    Assumpsit by Walter S.* Martin against the Milwaukee, Benton Harbor & Columbus Railway Company for work and labor done. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Samuel H. Kelley, for appellant.

      Gore & Harvey, for appellee.
   Moore, C. J.

This action was commenced in justice’s court, where plaintiff obtained a judgment of $146. The case was appealed to the circuit court by defendant. A trial was had before a jury, which returned a verdict in favor of the plaintiff for $393. From a judgment for that amount the case is brought here by writ of error.

It was the claim of plaintiff that he entered the employ of the St. Joseph Valley Railway Company in July, 1896, and continued therein and in the employ of defendant until April, 1898. The defendant succeeded to the rights and liabilities of the St. Joseph Valley Railway Company in August, 1897. The defendant claims that plaintiff was not in its employ or in the employ of its predecessor, but was in the employ of the Berrien Construction Company. After the verdict was rendered, a motion was made for a new trial for the following reasons:

1. The verdict of the jury is against the law.

2. The verdict of the jury is against the evidence.

3. There is no evidence to support a judgment for the sum of $293 in favor of plaintiff in said cause.

4. The amount of the verdict is so excessive as to show that the jury were actuated by passion or prejudice.

5. There was no evidence showing a contract that would justify the amount of the verdict in favor of the plaintiff.

6. That defendant is in possession of new and further evidence showing the verdict should be for defendant, and which, on another trial, defendant can produce.

This motion was overruled.

The questions involved are purely questions of fact. There was testimony on the part of the plaintiff that he was employed by the president of the St. Joseph Valley Railway Company, and that he assisted the surveyors in running the lines of the road upon its extension; that he helped secure its right of way, the deeds to which ran to the St. Joseph Valley Railway as grantee until the organization of the defendant company, when they ran to it as grantee.

There was also furnished to him a pass, reading as follows : _ ^

“Milwaukee, Benton Harbor & Columbus Railway Company.

“Pass W. S. Martin, Employee, until December 31, 1897j unless otherwise ordered.

“A. A. Patterson, Jr.

“Pres, and Gen. Mgr.

“No.-.”

There was also other testimony tending to support his theory of the case, both as to the employment and the value of his services. It is true there was testimony—and much of it—to support defendant’s theory of the case, but it cannot be said there was no case for the jury, nor can it be said the verdict was not based upon the testimony.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    COOK v. UNIVERSALIST GENERAL CONVENTION.
    1. Wills—Bequests to Charities—Construction—Cy Pres Doctrine.
    Testatrix bequeathed the remainder of her estate to the “Universalist Japan Mission Fund,” for the support of the “ Universalist Mission in Japan,” and it appeared that the testatrix was a Universalist in faith, and that the Universalist General Convention was the only organized corporation or society of the Universalist denomination having a mission in Japan, and a fund to support the same. Held, that the cy pres doctrine had no application to the bequest, since there was no doubt of testatrix’s intention.
    2. Same—'Trustee—Identification—Parol Evidence.
    Testatrix bequeathed the remainder of her estate to the “Universalist Japan Mission Fund,”for the support of the “Universalist Mission in Japan.” Held, that, for the purpose of identifying .the trustee intended by testatrix to disburse the fund, parol evidence was admissible to show that testatrix was a Universalist in faith, and had contributed to such fund in her lifetime, and that the Universalist General Convention was the only society or corporation of the Universalist denomination having a mission in Japan, and a fund to support it.
    Error to Van Burén; Carr, J.
    Submitted October 7, 1904.
    (Docket No. 36.)
    Decided November 9, 1904.

      John Cook appealed from an order of the probate court allowing a bequest in the last will and testament of Ann Smith, deceased, in favor of the Universalist General Convention. There was judgment for contestant, and the claimant brings error.
    Reversed.
    One Ann Smith died testate, leaving no children. After bequests for the erection of headstones over the graves of her father, mother, and herself, and several bequests to her collateral heirs, the seventh clause of her will provides:
    “After satisfying all the foregoing demands, I bequeath the remainder of my estate to the Universalist Japan Mission Fund, for the support of the Universalist Mission in Japan.”
    Upon the distribution of the estate, the Universalist General Convention made claim to this bequest, which amounted to about $1,000. The heirs contested the claim. The probate court held that the manifest intention of the testatrix was to make the bequest to the Universalist General Convention, to be used by it for the support of its mission in Japan. One of the heirs appealed to the circuit court.
    Testimony was offered and received establishing the following facts: The testatrix was a Universalist in faith. She had contributed in her lifetime to the support of this same “Japan Missson Fund.” She took and read the church paper, in which this fund was designated as “ The Universalist Japan Mission Fund.” The Universalist General Convention is a corporation organized under the law of the State of New York, is empowered to receive bequests, and is the only society or corporation of the Universalist denomination which has a mission in Japan, and a fund to support it.
    When the appellant had rested its case, the circuit court, upon motion of the appellee, struck out the above testimony, and directed a verdict against the claimant. The reason given by the court below for its direction is that the “ seventh clause of the will is too indefinite and uncertain to warrant the award of the residue to the Universalist General Convention.”

      Lincoln H. Titus (William G. Howard, of counsel), for appellant.

      Benjamin F. Heckert and T. J. Gavanaugh, for appellee.
   Grant, J.

(after stating the facts). The doctrine of cy pres, as defined in 12 Cyc. 1191, and 8 Am. & Eng. Enc. Law (2d Ed.), p. 534, has no application to the facts of this case. The devisee is not seeking to change the intention of the testatrix, or by extrinsic evidence to carry out her scheme as near as it is practicable to do so, or to change an illegal or impossible condition, limitation, or object into the nearest practicable one. There is no doubt of the testatrix’s intention. It is clearly expresed within the four corners of the instrument. No other inference can be drawn than that she intended to and did provide that a • portion of her estate should be devoted, under the direction of the Universalist Church, to which she belonged, to the support of the Japan mission of that church, as it was known to her, as it had been carried on, and to which she had before contributed. The purpose is lawful and commendable. It should be carried out, “unless there is such an uncertainty that the law is fairly baffled.” Tuxbury v. French, 41 Mich. 12.

The attack by the heirs is based mainly upon the claim that the will provides no trustee to execute the beneficent bequest. The object of the extrinsic evidence is to identify the trustee. A layman, even, would readily understand that the testatrix recognized the existence of an organization having charge of the fund, and one which would immediately be intrusted with the execution of her bequest. No other church than the Universalist, and no other than the Japan mission, are mentioned. There is only one Universalist mission in Japan, and that one is sustained by the claimant corporation. Extrinsic evidence is always necessary to identify the devisee, and beneficent bequests are not to be defeated by mere misnomers. All that reason and the law require is that the beneficiary shall be so described and named as to be capable of identification.

A legacy to the “Board of Managers of the Foreign Missionary Society of the Methodist Episcopal Church,” for the education of girls in India, was held to mean “ The Woman’s Foreign Missionary Society;” it'being the only foreign missionary society in that church engaged in work of that character. The Woman’s Foreign Missionary Soc. v. Mitchell, 93 Md. 199. A “ Presbyterian Infirmary on Division street in Baltimore city ” is held to mean “The Union Protestant Infirmary;” being the only infirmary on that street. Reilly v. The Union Protestant Infirmary, 87 Md. 664. Where the bequest was to the “Board of Missions,” extrinsic evidence was admitted to show that the testatrix meant the “ Board of Missions of the Presbyterian Church in the United States,” although there were other denominations having boards of identical names. The extrinsic evidence in that case was very similar to that in this. Gilmer v. Stone, 120 U. S. 586.

■A bequest to the “ Canandaigua Orphan Asylum, at Canandaigua, Ontario county, New York,” was held to mean the “Ontario Orphan Asylum,” located there. Bristol v. Ontario Orphan Asylum, 60 Conn. 472. A bequest to the “Methodist Episcopal Church School,” situated in B., was held to mean a school at that place of a different name, but controlled by that church. Ross’ Ex’r v. Kiger, 42 W. Va. 402. For further illustration, see Page on Wills, § 539.

Cases of this character might be multiplied almost indefinitely. Misnomers in property and beneficiaries are exceedingly common. It is enough if the testator uses language which is sufficiently clear to enable courts by extrinsic evidence to identify either the property (Oades v. Marsh, 111 Mich. 168), or the beneficiary and trustee.

Should one make a bequest to the law or the medical department of the University of Michigan, or to a department of any college, would a bequest be defeated because tbe name of the trustee to execute the trust was not mentioned, although it is clearly implied ? If a bequest should be made to “The Woman’s Hospital Fund of the City of Lansing,’’and it were shown that the only hospital in that city was “ The Women’s Hospital Association of the City of Lansing,” and there was in fact a fund commonly known as “The Women’s Hospital Fund,” should the clear intent of the testator be defeated because he failed to mention the trustee which alone has charge of the fund ?

We think the learned circuit judge was in error in excluding the evidence, and that this is one of those cases where extrinsic evidence is proper to identify the beneficiary in which the title to the bequest will vest.

Judgment reversed and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    ADAMS v. OSBORNE.
    1. Justices or the Peace—Process—Service—Alias Summons-Garnishment.
    Where a garnishee summons was issued simultaneously with the first summons in a suit in justice’s court, and was duly served, but the officer was unable to obtain service of the original summons, either personally, or by leaving it at defendant’s last place of abode, the suit did not fail, but plaintiff was entitled to sustain it by suing out and serving an alias summons followed by an attachment as provided by § 717, 1 Comp. Laws.
    2. Garnishment—Attachment—Service—Failure oe Suit.
    A debt impounded by garnishment proceedings instituted simultaneously with a short summons followed by an alias summons and attachment, as provided by sections 717 and 990, 1 Comp. Laws, is released by return of the attachment not personally served, section 745 having no application to such a case.

      Case made from Kent; Perkins, J.
    Submitted October 17, 1904.
    (Docket No. 125.)
    Decided November 9, 1904.
    Assumpsit in justice’s court by William M. Adams and George W. Hart, copartners as Adams & Hart, against George W. Osborne for goods sold and delivered. Plaintiffs recovered judgment in the justice’s court, and defendant appealed to the circuit court by writ of certiorari. From a judgment for plaintiffs, defendant appeals.
    Reversed.

      Sawyer & Bishop, for appellant.

      ■ Don E. Minor {Fred M. Raymond, of counsel), for appellee.
   Hooker, J.

There are two ways in which a justice of the peace may obtain jurisdiction in the case of a nonresident defendant, in an action upon contract, where such defendant does not appear: (1) Where such defendant is seasonably served personally with a short summons within the county; (2) where he has property within, or a debt owing to him from persons living in, said county, and such property or debt is duly impounded by writ of attachment or garnishment in accordance with law.

In- this case the plaintiffs reside in the county of Kent, and the defendant in Wexford, and they so resided at the time this action was begun. A short summons was issued in Kent county, on June 12, 1903, returnable in six days, and at the expiration of that time an alias summons waa issued, returnable on June 24, 1903. Each of these waa seasonably returned by the officer, with a certificate that, after diligent search, he had been unahle to find the defendant, or his last place of abode. On the latter date an attachment was issued, returnable July 2, 1903. This was returned on that date, with a certificate that the officer had made diligent search and inquiry during all of the time allowed by law, and had been unable to find the defendant within the county; that corresponding diligence had failed to disclose that he had a last place of residence in said county, or any goods and chattels therein. It was further certified that on June 27th the officer served a certified copy of the writ of attachment upon the Grand Rapids & Indiana Railway Company, etc., “the garnishee defendant named in the cause in which said writ of attachment is issued,” etc. This alluded to a garnishee summons which was issued simultaneously with the summons first mentioned, and duly served. The defendant did not appear in answer to either summons, or upon the return day of the attachment. On that day the cause was adjourned, in compliance with section 736 of the Compiled Laws, to August 3d, at which time the defendant appeared specially and moved to dismiss the proceedings, which motion being denied, he took no further part in the case, and the plaintiffs proceeded with it and ultimately obtained a judgment. The cause was removed to the circuit court by certiorari, where the judgment was affirmed. The defendant has appealed.

The important questions in the case are two:

1. Had the justice jurisdiction to issue the writ of attachment ?

2. Was there a proper service upon the garnishee?

We find no authorities denying the right of a resident to take a short summons against a nonresident, and none warranting the inference that an alias summons is limited to cases where the defendant is or has been a resident of « the county where the suit is commenced; i. e., one who can be said to have “a last place of abode.” Counsel seem to argue that the garnishee suit ended when the first summons was returned without service of any kind. They cite the case of Iron Cliffs Co. v. Lahais, 52 Mich. 394, as in point, saying:

“ Indeed, the cases are identical, except that the reason why the service of the first summons was void was different from the case at bar. There they left the summons at the defendant’s last place of abode too soon; with us, they never left it there at all. The court, in deciding the case, says:

“ ‘All the proceedings in the case are special and statutory, and must be strictly construed. To entitle the defendant to the benefit he claims under them, he must show they are clearly within the provisions of the statute. * * * At the time Clark made his disclosure, Lahais had no valid legal proceedings pending against Brunette. On the return day of the first summons against him, no servioe of the process had been made, and the suit thus commenced went down for the want of jurisdiction in the court to continue it by issuing further process. The garnishee proceedings, being merely ancillary, went down with it, and for the same reason.’

“This is exactly the point claimed by us, namely, that the service of the copy of the attachment upon the garnishee defendant, the Grand Rapids & Indiana Railroad Company, could have had no effect whatever in giving the justice jurisdiction, because the garnishee proceedings, being ancillary to the original summons, lapsed on the 18th day of June, when that summons was returned without any valid service having been made.”

It must be admitted that, if the suit failed for want of a proper service of the first summons, the garnishee proceedings fell with it. Did it fail ?

Section 717 of the Compiled Laws provides:

“If it appear by the return of the constable that the summons was not personally served, and the defendant shall not appear on the return day thereof, the plaintiff may thereupon take out a new summons against the defendant, in continuation of his suit, returnable not less than three nor more than twelve days from the date thereof, which shall be served at least two days before the time of appearance mentioned therein, and if such summons be returned that the defendant cannot be found after diligent inquiry, the plaintiff may, in further continuance of his suit, have an attachment against the defendant in actions upon contract, on filing an affidavit as to the amount claimed to be due, and executing a bond as in other cases.”

The return states that the officer was diligent during all of the time allowed by law, and was unable to obtain service in either method required by section 716. Counsel apparently intended to be understood as saying that, inasmuch as the summons was not left at defendant’s last place of abode, no alias could be lawfully issued, notwithstanding the fact that he had no last place of abode in the county. Section 717 is broad enough in terms to authorize it, and is silent about requiring any kind of a service. The case cited (Iron Cliffs Co. v. Lahais) is not necessarily conclusive, because in that case the return showed a failure of the officer to continue his efforts sufficiently long, and the result was said to be a discontinuance of the suit. A second (i. e., alias) summons could not be said to be a continuation of a suit in which there was no longer life. It is not there held that a case should fail where the officer’s return shows compliance with the statute, and we are of the opinion that in the present case the alias and attachment had substantial foundation, and had the effect of continuing the action against the principal defendant. Segar v. Lumber Co., 81 Mich. 347.

The second question seems to rest upon defendant’s construction of section 745, 1 Comp. Laws, which provides for the commencement of suits by attachment in certain cases:

“ That any person or corporation indebted to the defendant in any attachment suit, or who has any property or effects belonging to said defendant may be summoned as a garnishee of such defendant in such attachment proceedings. The proceedings against the garnishee shall be conducted in the manner presciibed in chapter two hundred and two of the Compiled Laws of Eighteen Hundred and Seventy-One, and the amendments thereto, now or hereafter passed. Such garnishee proceedings may be commenced simultaneously with the issuing of the writ of attachment, or while such attachment suit is pending, and shall be deemed auxiliary to the proceedings in attachment, but shall be entered separately upon the justice’s docket, the same as in other garnishee cases.”

It is insisted that the foregoing language precludes the commencement of garnishee proceedings earlier than the time of issuing the writ of attachment. This must manifestly be so in cases commenced under that statute. See 1 Comp. Laws, § 721 et seq. But this case is not so commenced, as we have seen. See 1 Comp. Laws, § 716. In cases begun by attachment, section 731 is applicable, and that provides for the service of a certified copy upon a garnishee when garnishment proceedings are commenced simultaneously with the issue of the writ. This would seem to imply that such service is not required where the garnishee proceeding is commenced later, as section 745 clearly states that it may be, if jurisdiction is acquired over the principal case, by seizing property, and personal service, or perhaps either. Section 990 provides for the commencement of garnishee proceedings before a justice of the peace in any action founded upon contract or judgment or decree. It may be commenced any time after the commencement of such action, during its continuance. This action was commenced by the issue of a short summons. The garnishee process followed immediately, and was kept alive, awaiting the result of the principal suit, which also was continued in life by proceedings in strict compliance with law until the attachment was returned not personally served. Then both proceedings fell, as the writ of garnishment was not issued in accordance with either section 731 or 745; i. e., simultaneously with the writ of attachment. See opinion of Carpenter, J., in circuit court, in the case of Record Printing Company v. Adams, 7 Det. Leg. News, issue of Dec. 15, 1900, bottom paging 191.

The judgment is reversed, and the cause dismissed, with the costs of all courts.

The other Justices concurred.


text:
    AMERICAN FOUNDRY & MACHINERY CO. v. CHARLEVOIX CIRCUIT JUDGE.
    1. Injunction—Bond—Necessity.
    Where replevin has been brought to recover machinery sold to the builder of a mill, title to remain in the seller until he is fully paid, an injunction staying removal of the machinery, until the rights of a mortgagee of the land can be adjudicated does not stay the action at law so as to require a bond under section 502, 1 Comp. Laws.
    2. Same.
    Where, in such a case, no injury would be done to the machinery by permitting it to remain in the mill until the determination of the questions involved, and irreparable injury would result to the mortgagee by its removal, and the mortgagee, under the allegations of his bill, is under no obligation to pay the debt, or, if he were, should be permitted to make payment and avoid the destruction of his security, no bond should be required.
    Mandamus by the American Foundry & Machinery Company to compel Frederick W. Mayne, circuit judge of Charlevoix county, to vacate an order granting a preliminary injunction.
    Submitted October 18, 1904.
    (Calendar No. 20,718.)
    Writ denied November 9, 1904.
    The relator seeks the writ of mandamus to compel the respondent to vacate an order granting a preliminary injunction. Upon filing the bill the injunction was ordered and issued. Relator filed an affidavit, and moved for a dissolution of the injunction, which respondent refused.
    The material facts alleged in the bill of complaint are: That a corporation known as the Charlevoix Sugar Company constructed a factory and refinery. That it authorized the issue of bonds, not exceeding the sum of $250,000, and a mortgage to secure the same, to the United States Mortgage ■& Trust Company; said mortgage to cover all the real estate, property, chattels, and effects of said corporation as collateral security for the payment of the bonds. That bonds were issued. That complainants own some of said bonds. That the mortgage was executed July 24, 1902. That the Charlevoix Sugar Company made a contract with the National Construction Company, of Detroit, Mich., to build, construct, and equip the necessary buildings for said sugar company, and to furnish all machinery required. That in the equipping of said factory said National Construction Company purchased from the relator, the American Foundry & Machinery Company, certain machinery. That said machinery was firmly and securely attached to said factory—built into it on a brick and concrete base—and cannot be removed without causing the destruction of the walls of the factory. That by the terms of the contract between the relator and the National Construction Company the relator agreed to furnish to the construction company this machinery for the sum of $32,106.
    The contract for the purchase price thereof provided':
    “It is further expressly agreed by and between the parties hereto that the sale of the machinery herein is a conditional and not an absolute sale and is conditioned upon the payment by said, second party of the purchase price thereof in the manner hereinbefore provided; that the machinery covered by this contract shall be and remain personal and not real property until the purchase price hereinbefore stated is fully paid to said first party, and that the title to said machinery and to every part and portion thereof shall remain vested in said first party, its successors or assigns until the purchase price thereof, herein-before stated, is fully paid, or until any notes, drafts, or acceptances or renewals thereof taken on account of said purchase price by said first party, or any judgment or judgments rendered thereon, or any part thereof and the taxable costs thereon, shall have been fully paid, satisfied, and discharged. It being expressly agreed that the taking of any note, bond, certificate of stock, or other property by way of security, or the conversion of same into cash to apply on the purchase price of said machinery, or the filing of any claim of lien by said first party, shall in no way constitute or be held to be a waiver by said first party of this term of this contract, or of its right to repossess itself of said machinery so long as any portion of said purchase price remains unpaid and said second party is in default therefor, and in event of this second party failing to pay said first party the amount due it under this contract in the manner hereinbefore provided, then and thereupon it shall be lawful and the said first party is hereby licensed and empowered, without process of law, to enter upon the premises wheresoever the said machinery may be situate, without the giving of any notice of its intention to do so, and to remove the same or any part thereof and retake the same into its possession, custody, and control and treat any and all payments theretofore made on account of said purchase price as having been paid for the reasonable use, wear and tear of said machinery.”
    That the said relator knew that said sugar company had issued bonds and executed and delivered said mortgage to secure them; knew that said bonds would be sold and disposed of to the public, and that the bondholders would look to the said factory and property for its security.
    The bill alleges upon information and belief that said National Construction Company has paid the relator in full; that the relator, claiming that its contract with the National Construction Company had not been fulfilled, and that there was still an amount due, brought suit in replevin for the machinery; that the sheriff of the county, by virtue of said writ, had levied upon said property, and was about to remove the same; that said replevin suit is at issue, and ready for trial; that complainants have no desire and do not intend to prevent or delay the trial of said cause; that the complainants applied to the United States Mortgage & Trust Company to commence action to restrain relator from removing said machinery, but that said company has refused to do so; that complainants are one of the cestuis que trustent to be benefited by said mortgage; that said action of replevin was commenced against the sugar company and the National Construction Company; that the complainants are not interested in the outcome of the replevin suit, but insist that the rights of the bondholders in said property will remain the same whichever party prevails in that suit; that the rights of the bondholders are superior to those of relator, and that the relator has no right to remove the machinery, for the reason that it is a part of the realty, and a part of the security claimed by them. The bill prays that the relator may be enjoined from removing the machinery until the further order of the court, and the rights of the parties may be determined.
    The bill further alleges that the Charlevoix Sugar Company is insolvent; that the machinery in dispute was delivered to the National Construction Company after the mortgage to the trust company was duly recorded; asks for an accounting between relator and the National Construction Company to determine the amount due, so that the complainants, or the trust company for the bondholders, may have the opportunity to protect their security by the payment of the claim, should it be found that the title of the relator to the property is paramount to the lien of the bondholders.
    The affidavit made by the attorney for the relator, in opposition to the preliminary injunction, sets up the contract of sale to the National Construction Company, the failure to pay, and the proceedings in the replevin suit, the levy of the sheriff, the appraisal of the property at $16,000, and the giving of a bond in the sum of $32,000. The court did not require, and the complainants in the chancery suit did not give, a bond under 1 Comp. Laws, § 502.

      Anderson & BacJcham, for relator.

      Lisle Shanahan, for respondent.
   Grant, J.

(after stating the facts). The statute provides that “no injunction shall issue to stay the trial of any personal action in a court of law, until the party applying therefor shall execute a bond with one or more sufficient sureties to the plaintiff in such action at law,” etc. 1 Comp. Laws, § 502.

The trial at law is not stayed by the injunction, and counsel assert in their brief that the case has since been tried. There is no evidence of this in the record, and we cannot now consider it. The respondent, in refusing to dissolve the injunction, stated that “ the trial of the cause is not sought to be restrained, and whether the present restraining order would be of any force to prevent the removal of the property after judgment I do not now determine.” No precedents under this statute or a similar one are cited. Probably the question is new. The claim of the bondholders is that this ponderous machinery was sold and purchased with the knowledge that it must necessarily become so affixed to the realty as to become a part of it. The bill of complaint asserts that the bondholders had no knowledge of the contract between relator and the National Construction Company, and that they are innocent mortgagees.

Suppose that a vendor were to sell brick, stone, or iron to form a part of the structure of a building, upon the condition that the title thereto should remain in him until payment of the purchase price; that the building were constructed; and the owner should sell or mortgage it to a party who had no knowledge of such contract of sale— would the vendor have the legal right to tear down the building to take his brick, stone, or iron ? As between the vendor and vendee, the vendee may be bound by such conditions; but it does not follow that the vendor would possess such right against an innocent vendee or mort-. gagee. The court now has only the allegations in the bill to act upon. The evidence may disclose a different state of facts. It is not claimed that the property will suffer injury if left in the building until the rights of the parties are determined. If the allegations of the bill are true, the removal of this property will result in great and irreparable injury to the bondholders. If the contention of the bondholders is correct, they are under no obligation to pay the debt due the relator. They ought not, therefore, in good conscience, to be required to give bond to pay it until the right of relator to seize its property is determined. If it is determined in the suit at law that that right exists, and there is a balance still unpaid, the bondholders ought in good conscience and equity to have the right of payment, and thus avoid the destruction of their property.

The contention on behalf of relator appears to be that, to restrain the removal of the property is, in effect, to restrain the trial of the suit at law, and therefore in violation of the statute. We think otherwise. We agree with the circuit judge in holding that the statute does not apply to such a case as this, and that it was no abuse of discretion to keep this property in place and intact until the rights of the parties are determined.

The writ is denied.

The other Justices concurred.


text:
    WM. BARIE DRY-GOODS CO. v. CASLER.
    1. Findings on Fact—Review.
    Where there is evidence to support the findings.of fact of the trial judge, the evidence will not be reviewed.
    2. Same—Propriety.
    It is proper for findings of fact to show that plaintiff at the trial waived one of the alleged causes of action.
    Certiorari to Eaton; Smith, J.
    Submitted October 20, 1904.
    (Docket No. 58.)
    Decided November 9, 1904.
    Proceedings by the Wm. Barie Dry-Goods Company against Spurgeon D. Casler under the fraudulent debtors’ act. There was judgment for defendant, and plaintiff brings certiorari.
    Affirmed.

      Smedley & Corwin, for appellant.

      J. B. Hendee (Carry C. Fox, of counsel), for appellee.
   Hooker, J.

The plaintiff instituted this proceeding under the fraudulent debtor act. The sufficiency of the affidavit was determined by this court in 131 Mich. 23. The case was afterwards tried at circuit upon the merits, without a jury, and the defendant was found not guilty, and an order dismissing the proceedings was made. All the testimony is returned, upon certiorari sued out by the . plaintiff; and it is contended on its behalf that said testi- * mony conclusively shows defendant’s guilt, and that the court erred in finding him not guilty. Exceptions were taken to several of the findings of fact, and to the conclusion of the judge upon them that defendant was not guilty.

The question before us is therefore reduced to the single one of whether the undisputed facts conclusively show guilt, so that we can say that it was error for the court to find otherwise. It is not enough for us to be ablé to say that we would have rendered a different judgment upon disputed questions of fact.

The circuit judge found:

Facts.

(1) That Spurgeon D. Casler was engaged in mercantile business at Farnsworth, Mich., from December 5, 1900, until July 5, 1901. On that day he sold to Van Valkenburg this stock of goods for $805.79, taking in payment $205.79 in cash, and two notes, of $100 and $500, respectively, due in five years from their date. The smaller note was paid within a few weeks or months after it was given. At the time he sold to Van Valkenburg, the defendant owed to various creditors an aggregate sum of more than $1,500, of which $417.29 was due to the plaintiff.

(2) That soon after the sale plaintiff’s agent secured two notes from the defendant, for the sum of $158.64 each, payable on demand; and, soon after, this defendant secured employment in Wexford county.

(3) He was there sued by the plaintiff, and judgment was taken for $323.02 damages and $23.30 costs.

(4) About the same time proceedings were commenced there upon this claim under the fraudulent debtor act. This resulted in his discharge.

(5) Defendant employed J. B. Hendee as his attorney, and delivered the $500 note to him as security for his compensation. This was all the property that defendant had.

(6) Execution issued from the Wexford circuit to the Eaton county sheriff, who, with counsel for plaintiff, found defendant at his father’s home.

(7) Demand was made that he pay the execution. He replied that he could not, for the reason that the only property he had was the $500 note, and he had turned that over to Hendee for services. He told plaintiff’s counsel that he would turn out the note, if he could arrange it with Hendee, to which counsel replied that the note was on long time, and not worth the paper it was written on, and that he did not want it.

(8) It was not shown nor claimed on the trial that defendant had any other property.

(9) In January, 1902, application was made for the warrant in this case, on two grounds, viz.: First, defendant had disposed of his property with intent to defraud his creditors; second, he had rights of action and money, and evidences of debt, which he unjustly refuses to apply to the payment of said judgment.

(10) On the trial plaintiff waived any claim that defendant had disposed of his property with intent to defraud his creditors, and asked judgment in its favor on the second charge.

(11) After the warrant in that case was issued, James Casler, defendant’s brother, procured the $500 note from Hendee, and turned it out to the maker, in part payment for his stock of goods, at its face value, including interest. It was not shown that defendant was in any way a party to, or had anything to do with, the transaction, or that any part of the note, or the money paid upon it, came to his hands.

Law.

“I am of the opinion that the plaintiffs have failed to show any facts which would justify the holding of defendant as a fraudulent debtor. It seems to me there is nothing upon which to base such a holding, unless it may be that expressed in the eleventh finding of fact. I am of the opinion, if this has any bearing, it would be upon the allegation that defendant ‘ disposed of his property with intent to defraud his creditors,’ and, claim under that having been waived, I do not consider it, except to make this statement: That I am not satisfied it would apply to that. I do not see how it can apply to the second allegation, under the facts. The case will be dismissed, with legal costs to be taxed.”

From the foregoing, it is seen that the court found against the plaintiff upon the merits and upon both points, though he also found that the plaintiff waived the first point upon the trial.

Plaintiff excepted to several findings of fact, viz., the fifth, upon the point that the evidence failed to show that the note was turned out to Hendee to secure payment for his services; the seventh, that the testimony does not warrant the finding that plaintiff’s counsel said that he did not want the note, etc., and that the evidence showed that Smedley’s reason for refusing the note was that the offer was conditioned upon its acceptance as payment in full for several claims that he had; the eleventh, that the court erred in not finding that the defendant knew of the transaction between James Casler and Van Valkenburg, which is called “buying back the stock.” We have examined the testimony critically, and find evidence tending to establish each and every finding of fact made by the learned circuit judge. It is argued in relation to the eleventh that, upon the showing made, Hendee had not such an interest in the note as permitted him to sell it to James Casler upon his promise to see that he was paid. We need not discuss that question, for, if counsel be right in this claim, it does not follow that defendant either had the note, or that the stock was bought back for him, or that he could have turned over either to the plaintiff. Counsel argue that the tenth finding, i. e., of a waiver of the first claim upon the trial was one that the judge had no right to make, because not supported by any evidence. They say that:

“The findings of the court should be statements of the ultimate facts found, and not of the probative facts. Neither evidence, argument, nor comment has any legitimate place in findings of facts.”

We think it was proper for the court to make this finding'of a material incident of the trial, which could appear in no other way. It is not important, however, as the court has found the merits against plaintiff upon both questions of fact, and none the less so though this may be thought to fully appear only from the finding of law.

The judgment of the circuit court is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    WOOLCOTT v. WOOLCOTT.
    Deeds—Support of Grantor—Provision.
    Where a father conveyed land to his son on condition that the latter should support him during the remainder of his life, and the father subsequently left the son’s residence after a quarrel which the father provoked, he is only entitled to recover from the son for reasonable expenditures made for his support and a reasonable provision for the future.
    Appeal from Berrien; Coolidge, J.
    Submitted October 21, 1904.
    (Docket No. 72.)
    Decided November 9, 1904.
    Bill by Samuel Woolcott against Elmer L. Woolcott and Elizabeth A. Woolcott to set aside certain deeds. On settlement of the decree, defendants appeal.
    Modified.

      G. M. Valentine and G. TV. Bridgman, for complainant.

      Gore & Harvey, for defendants.
   Montgomery, J.

This case was before the court for consideration at the June term of 1903, and is reported in 133 Mich. 643. We there determined the rights of the respective parties in the land involved, and remanded the case to the circuit court in chancery to ascertain the cost of complainant’s support after he ceased to live with defendants, and what will be a proper allowance for the future. From a decree of the circuit judge fixing these amounts the defendants appeal.

The decree awarded for the period up to the date of the decree $5 per week for board, $75 per year for clothing, $100 per year for incidentals, and $40 per year for medical attendance.'

An examination of the testimony discloses that complainant was not able to state with entire accuracy all of his expenditures. Perhaps this was to be expected, and we ought not to split hairs in an attempt to make provision for the complainant’s remaining days. Yet we are bound to limit the allowance to compensation for reasonable past expenditures and to a reasonable provision for the future.

We think, under the proofs, an allowance of $5 per week for board, while fairly liberal for the locality, was not excessive. The allowance for clothing was higher than complainant’s testimony supports. This should be fixed at $50 per year. We think the item of $100 for incidentals should be deemed sufficient to include medical attendance. The total allowance up to date of decree below should be at the rate of $410 per year, and for the future $8 per week. The provision for future application to the court in case of changed conditions will be retained in the decree. Defendants will have credit for payments made toward the complainant’s support since the former hearing. The terms of the decree as to the remedy for enforcement of this order, if not agreed upon by counsel, will be fixed upon settlement of the decree.

The other Justices concurred.


text:
    BOWINS v. ENGLISH.
    1. Evidence—Parol Evidence to Vary Writing.
    In a suit to enforce specific performance of a written contract, by which it was claimed complainant was made the heir of deceased, which writing was clear and unambiguous, statements made by deceased and his first wife as to their feelings toward complainant and her relation toward them were incompetent.
    3. Adoption—Executory Contracts—Breach—Rights oe Child.
    A written contract to adopt complainant was not signed by her foster mother, and deceased, her foster father, never took any steps to adopt her. Complainant knew, when a mere child, that she was not the daughter of her foster parents, >and certain conveyances by way of gift were made to her by her foster parents in the name of her natural father. The contract on its face authorized complainant’s foster parents to make her their heir, but contained no covenant binding them so to do. Held, that complainant was not entitled to recover the property of her foster parents as their heir.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 31, 1904.
    (Docket No. 73.)
    Decided November 9, 1904.
    Bill by Stella May Bowins against Margaret English, individually and as administratrix of the estate of John G. English, deceased, and others, for the specific performance, of a contract of adoption. Prom a decree dismissing the bill, complainant appeals.
    Affirmed.

      The purpose of this bill is to enforce the specific performance of a contract by which it is claimed that the complainant is the heir at law of John G. English, deceased, and is the owner in fee of all his real estate, subject to his widow’s right of dower. The contract reads as follows:
    “Know all men by these presents, that I, Thomas Bunker, of the county of Jackson in the State of Michigan, being the sole surviving parent of an infant girl child named Parthena Jane Bunker now of the age of six months, said child being born on the 11th day of March, A. D. 1864.
    “In consideration of the love and affection which I have and bear for the said infant child, and my desire to see her properly raised and educated, and also for divers other good causes and considerations, me, the said Thomas Bunker, hereunto moving, do by these presents give the said child, Parthena Jane, unto John G. English and Cordelia A. J. English, his wife, of the county of Washtenaw in the State aforesaid, and hereby authorize them and unite with them in changing the name of said child to Stella May English. The said John G. English and Cordelia A. J. English, his wife, hereby agreeing to take said child and adopt her as their own child under the name of Stella May English, to clothe, educate and care for her as their own child and entitled to her services until she becomes of the age of 21 years. The said Thomas Bunker hereby and by these presents committing the custody of the person of said child, Stella May English, unto the said John G. English and Cordelia A. J. English, his wife, fully and in all respects whatever, hereby relinquishing all claims and right to control said child as her father unto them, the said John G. and Cordelia A. J. English until said child arrives at the age of 21 years.
    “And it is further mutually covenanted and agreed by and between the parties hereto that the said John G. English and wife may procure an act of the legislature of the State of Michigan, authorizing them to adopt said child as their own, in case the same may be deemed necessary to constitute her their heir. And the said John G. English and Cordelia A. J. English, his wife, hereby agree to clothe and educate the said Stella May English according to their condition and position in life.”

      Complainant was at the date of the contract a few months. old. Mr. English and his wife had no children. Complainant was brought up by Mr. English and his wife, educated in school and in college, and in 1892 was married. After their marriage she and her husband continued to live on the farm. Mr. English lived with them until after the death of his first wife, and until he remarried.
    Mrs. English, though mentioned in the body of the contract as a party, did not sign it. Before her death she deeded her land to her husband for 20 years, “ after which time the said described premises to belong to and become the property of Stella May Bunker during the natural life of said Stella May Bunker.” Shortly before Mr. English remarried he deeded to complainant 70 acres of land. In this deed she is named as Stella May Bunker. Mr. English also made a loan of $900, taking back a mortgage to complainant, in which she is named as Stella May Bunker. Mr. English died intestate January, 1902.
    The case was heard upon pleadings and proofs, and the bill dismissed.

      A. J. Waters (A. J. Sawyer, of counsel), for complainant.

      A. F. & F. M. Freeman, for defendants.
   Grant, J.

(after stating the facts). We held in Albring v. Ward, 137 Mich. 352, that heirship, except that based upon consanguinity, can be created only by a constitutional law.

If executed articles of adoption under a void law are not a sufficient basis to make one a legal heir and to constitute an agreement to convey land, certainly an agreement to adopt and to take steps, if necessary, to secure such adoption, cannot be made the basis of an agreement to convey land, and cannot be held to be sufficient to take the place of adoption under a constitutional law.

Mrs. English did not agree to adopt the child. Mr. English never did adopt her, and took no steps to that end. Complainant knew, when a mere child, that she was not the daughter of her foster parents. All conveyances from her foster parents to her by gift named her as Stella May Bunker.

If complainant bases her right of action upon the written contract, then all statements made by Mr. and Mrs. English as to their feeling towards complainant and her relation toward them are incompetent evidence, because the writing is clear, and must speak for itself. Upon its face there is nothing in it which in law bound Mr. English to make the child his lawful heir, or to convey to her any property. It may have been the equivalent of an apprenticeship until she was 21 years of age. If so, Mr. English fully performed it by supporting, caring for, and educating her during the time specified. The case is ruled by Albring v. Ward, supra.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    RIKER v. OAKLAND CIRCUIT JUDGE.
    Municipal Corporations — Street Lighting — Contracts — Injunction-Adequate Remedy at Law.
    Where complainant claimed he had a valid and enforceable contract with a city for lighting its streets at the time the city repudiated the same and accepted the bid of another, ■complainant was not entitled to restrain the city from entering into a new contract with such other therefor, since, so far as the remedy by injunction was concerned, the rights of the public were paramount to those of an individual contractor, and complainant had an adequate remedy at law.
    Mandamus by John D. Hiker, mayor, William J. O’Riley, clerk, and the common council of the city of Pontiac, to compel George W. Smith, circuit judge of Oakland county, to vacate an order refusing to dissolve an injunction.
    Submitted October 4, 1904.
    (Calendar No. 20,740.)
    Writ granted November 15, 1904.
    On July 13, 1904, the common council of the city of Pontiac advertised for bids for lighting the city in accordance with plans and specifications which the council had duly adopted. Bids thereupon were to be received until 7 o’clock p. m. July 25th. One Jules G. Hoffman duly filed a written bid to light said city in accordance with said plans and specifications. He was the lowest bidder. The lighting committee recommended that the contract be awarded to Hoffman. A resolution was thereupon unanimously adopted by the common council awarding him the contract. There was nothing in the plans, specifications, or bid to indicate that a contract should be drawn in, accordance therewith, but the resolution of the council accepting the bid did provide for entering into such a contract.
    On account of the illness of his father, the city attorney could not immediately prepare the contract, and no other steps were taken until the 8th of August. Mr. Hoffman then appeared before the council and demanded that a contract be drawn up and executed. A resolution was then adopted reconsidering that approving the bid of Hoffman, his bid rejected, and another bid, made by the Pontiac Standard Lighting Company, was accepted, and the mayor and city clerk directed to sign such contract with that company. Thereupon Mr. Hoffman filed a bill in equity to enjoin the making of a contract with that company, and praying that the common council be directed by a decree of the court to make, sign, and execute a contract in accordance with the plans and specifications and proposal of said Hoffman, and the approval thereof by the common council. A preliminary injunction was issued. Upon the coming in of the answer, the court refused to dissolve the injunction, and the relators, the mayor and the common council, apply for the writ of mandamus to compel the dissolution of said injunction.

      M. F. Lillis (John H. Patterson and Peter B. Bromley, of counsel), for relators.

      Aaron Perry and James. H. Lynch, for respondent.
   Grant, J.

(after stating the facts). We find it unnecessary to determine the legal rights of the parties. Municipalities, although through their officers they may at times let contracts not in accordance with the legal rights of the parties, ought not, except under very extraordinary circumstances, to be restrained by the courts. The rights of the public, so far as the remedy by injunction is concerned, are paramount to the rights of individuals who claim to stand in the position of contractors. Prompt action on the part of municipal officers is, as in this case, essential to secure to the public the speedy accomplishment of those things necessary for their use and protection. If Mr. Hoffman had a legal contract by reason of his bid and its acceptance, he has a clear remedy at law. This as well as other courts has denied the remedy by injunction in such cases. City of Detroit v. Wayne Circuit Judge, 128 Mich. 438; Chandler v. Detroit Board of Education, 104 Mich. 292; Riehl v. City of San Jose, 101 Cal. 442; People v. Campbell, 72 N. Y. 496.

The circuit judge was in error in issuing the injunction. The writ will therefore issue as prayed.

Moore, C. J., and Montgomery and Hooker, JJ., concurred. Carpenter, J., took no part in the decision.


author: Carpenter, J.

text:
    HATCH v. WAYNE CIRCUIT JUDGE.
    1. Trial—Refusal of Judge to Proceed.
    Where it appears on the trial of an action that a suit for the same cause of action has been determinéd by a judgment in favor of defendants, and plaintiff contends that the judgment presents no obstacle to his recovery, because he was not present when the case was disposed of, the judge should direct a verdict either for or against plaintiff, and has no right to refuse to proceed with the trial.
    8. Mandamus—Discretion—Award not Beneficial.
    The plaintiff in a suit will not be awarded a mandamus to compel the court in which the suit was brought to proceed to trial, where it would be the court’s duty upon such trial to direct a verdict for defendant.
    3. Judgment—Validity—Collateral Attack,
    A judgment in form on the merits cannot be falsified by evidence not of record, to the effect that plaintiff, against whom the judgment was rendered, was not present and introduced no witnesses at the trial; but relief from such a judgment can be obtained only by having the judgment entry corrected by the court which committed the error, or in a court having appellate jurisdiction.
    Mandamus by William B. Hatch, administrator of the estate of Charles L. Andress, deceased, to compel Robert E. Frazer, circuit judge of Wayne county, to proceed with the trial of a cause.
    Submitted October 4, 1904.
    (Calendar No. 20,649.)
    Writ denied November 15, 1904.

      William B. Hatch (Bernard B. Selling, of counsel), in pro. per.

      Davis & Bromley, for respondent.
   Carpenter, J.

Relator commenced a suit in the circuit court for the county of Wayne against Lucy A. An-dress and Anna Morris. When this suit came on for trial before respondent and a jury, it was made to appear that a suit for the same cause of action against defendants, instituted by relator as plaintiff, in tbe Oakland circuit court, had been determined by a judgment, in form on the merits, in favor of defendants. Relator contended that this judgment presented no obstacle to his recovery in the present suit, because, when the case was disposed of, plaintiff was not present, and swore no witnesses. Respondent decided against this contention of relator, and declined to proceed further with said trial. Relator seeks by this proceeding a mandamus to compel respondent to proceed with the trial of his case.

Respondent had no right to refuse to proceed with the trial. It was, at the least, his duty to direct a verdict either for or against plaintiff. If, however, it was respondent’s duty to direct a verdict for defendants on the ground that the judgment in the Oakland circuit court was a bar to this suit, relator has no real grievance. It would be an abuse of our discretionary powers to issue a writ of mandamus compelling respondent to try such a case, for it would only result in wasting money in prosecuting fruitless litigation.

It seems, therefore, our obvious duty to determine whether or not respondent should have directed a verdict for defendants. Relator contends that the judgment rendered in the Oakland circuit court does not bar his recovery in this suit, because he introduced no witnesses, and was not present when the case was tried. As the record does not show the circumstances relied upon by relator to lessen the effect of the judgment, it is obvious that his contention cannot prevail, unless it is competent to prove the falsity of the judgment record by evidence not of record.

Tucker v. Rohrback, 13 Mich. 73, Wood v. Faut, 55 Mich. 185, and Hoffman v. Silverthorn, 137 Mich. 60, cited by relator, are all inapplicable.

In Tucker v. Rohrback, supra, this court held that an adjudication that plaintiff and another did not have a claim against defendant was no bar to a suit in which plaintiff alone sought to enforce that claim.

In Wood v. Faut, supra, it was held that it was competent to prove that a judgment of no cause of action was rendered on the ground that suit was prematurely brought., This holding proceeded upon the theory that such evidence did not contradict the record.

In Hoffman v. Silverthorn, supra, it was held, not that a record could be contradicted by parol evidence, but that, in the absence of affirmative testimony, it would not be presumed that an order denying a mandamus decided ^the merits of a controversy.

The law touching the question under consideration is correctly stated in 1 Greenleaf on Evidence (16th Ed.), § 305g, as follows:

“ This record [the record of a court] is, in legal theory, not a testimonial report by the officer of the proceedings, ■ nor a copy of some other written act; it is the proceeding and the act itself; * * * and consequently it cannot be shown that something was done which is not noted in the record, or that a thing noted in the record was in truth done differently.”

It follows that if there was, as relator claims, error in entering a judgment on the merits, he can obtain relief by, and only by, having the judgment entry corrected j and this relief must be sought in the court that erred, or in a court having appellate jurisdiction.

It may not be out of place to say in this connection— though this circumstance is not material to our decision— that, while relator has asked the Oakland circuit court to set aside said judgment, it does not appear that he has ever applied to have the judgment entry amended.

The mandamus applied for should be denied. But under the circumstances, no costs will be awarded.

The other Justices concurred.


author: Moore, O. J.

text:
    BOARD OF TRADE OF GRAND HAVEN v. DE'BRUYN.
    Contracts—Cancellation—Meeting op Minds.
    On a bill to cancel a contract by which a board of trade agreed to extend certain favors to defendants to induce them to locate their factory in complainant’s city, evidence examined, and held that the purpose of defendants to remove only a portion of their works was not in view of the parties at the time of making the contract, and that it should be canceled.
    Appeal from Ottawa; Padgham, J.
    Submitted October 5, 1904.
    (Docket No. 6.)
    Decided November 15, 1904.
    Bill by the Board of Trade of Grand Haven against John 0. De Bruyn, Nicholas Bosch, and John Boda, doing business as the Valley City Machine Works, for the cancellation of a contract. Prom a decree for complainants, defendants appeal.
    Affirmed.

      George A. Farr, for complainants.

      Frank A. Bodgers, for defendants.
   Moore, O. J.

The circuit judge made a decree in favor of the complainants, declaring a contract dated the 13th day of November, 1900, purporting to be made between the complainants and said defendants, null and void. Prom this decree the defendants have brought the case here by appeal.

It is the claim of defendants that there is no ambiguity in the contract; that the parties to it knew what it contained when it was signed; that, if Mr. Watson and Mr. Thielman did not have the authority to enter into this contract and bind the other complainants, as they represented to the defendants, then they would be liable to the defendants for any damage defendants suffered by reason of it, and that the bill should be dismissed. .

The testimony is conflicting, but a careful perusal of the record satisfies us, as it doubtless did tbe circuit judge, of the existence of the following facts: Some time prior to November, 1900, the city of Grand Haven raised a sum of money to be expended in the effort to get new business enterprises to settle in Grand Haven. A board of trade, so called, was brought into existence, through whom and a board of five trustees the money so raised was to be expended. The complainants constitute that board of trade. They elected a president and secretary. The officers of the association learned that the defendants, doing business at Grand Rapids under the name of the Valley City Machine. Works, owing to the necessity of having more room, had expressed a desire to establish their business in a new location. Mr. Watson, president of the board of trade, and Mr. Thielman, secretary, entered into negotiations for the removal of the plant to Grand Haven. These men say the negotiations proceeded upon the theory that the entire plant was to be removed to Grand Haven, and they are corroborated by other witnesses. The defendants also submitted the following to complainants:

“ To the Hon. Board op Trade,

“ City.

G-entlemen: In order to locate our business here, we respectfully submit that you assist us by donating the land known as the Blecker Place, fronting on First St., namely three lots, sixty six foot front, plus the three cornered strip back of same, between the railroad tracks. $5,000 cash to be used in erecting and improving necessary buildings. Also make us loan in cash,” etc.

On the 19th day of October Mr. Bosch wrote to one of the complainants as follows:

“Mr. George W. McBride,

“Grand Haven, Mich.

Dear Sir: In the event of our firm moving to your city it is my best judgment that it will be to my interest to dispose of our home here and either rent or buy again in your city. It occurs to me that you would be the right man to confer with in this matter. * * * Your answer will be appreciated.”

Mr. Bosch also sent a letter to Mr. Watson containing, among other things, the following:

“ October 22, 1900.

“Mr. D. O. Watson:

‘£ In regard to your favor of the 20th inst., which arrived in this p. m.’s mail, would say we hardly know what answer to give you, because, to begin with, we cannot give you any assurance as to the number of men to be employed, but we will say that if we had reason to believe that in coming to your town we could not continue the steady gait of increase in business we now enjoy, . we would not make any change. Consequently all4 we can give you on that point is what you can for yourselves figure out, basing it on the ratio of increase from October, 1895, until the present time, and add to that what in your judgment would add on account of the advantage gained by being in your, town, and might add an advantage over the past years on account of experience gained. Up to 1895 the writer had never, to his knowledge, seen the inside of a machine shop. We then continued business against odds that offered very little encouragement for success. Our equipment was small and incomplete, and mortgaged for about all it was worth. And the small weekly pay-roll of a little over $50 was met with a struggle. We are not afraid to come to Grand Haven, but can guarantee you only this. That if we do come, it is with the confidence of success, and we see no real reason with the foundry added, why we could not iñ a short time double our present force and continue to increase.”

Mr. Watson and Mr. Thielman say that with no other thought in mind than that the entire plant was to be moved to Grand Haven they entered into a contract, which is the basis of this controversy, the material parts of which are as follows:

“This agreement made and entered into this 13th day of November, A. D. 1900, by and between John C. De Bruyn, Nicholas Bosch and John Boda, doing business and composing the name of the Valley City Machine Works of the city of Grand Rapids, Kent county, Michigan, party of the first part, and the Board of Trade of the city of Grand Haven, Ottawa county, Michigan, a corporation, by Dudley O. Watson and William Thielman, duly authorized to represent and act and enter into this covenant for and in behalf of said Board of Trade, as appears by a resolution duly adopted at a meeting of said Board of Trade on or about November 8th, A. D. 1900, party of the second part,

Witnesseth: In consideration of the premises and of the agreement of the said parties herein expressed. The said party of the second part hereby promises and agrees to purchase and hold title to the property on First street, in the city of Grand Haven, Ottawa county, Michigan. * * *

“The said second party further agrees to build and erect on said premises a machine shop, dimensions as follows : 50 feet in width by 100 feet in depth and 16 feet in height, with a concrete floor covered with pine flooring, and wooded truss roof with iron on outside, also an engine and boiler room 20 feet in width by 35 feet in length and 16 feet high, with a concrete floor. The whole to be built and completed according to plans and specifications furnished by J. H. Daverman & Son of Grand Rapids, Michigan.

“The said second party further agrees to. have said buildings ready for occupancy on or before the 1st day of April, A. D. 1901.

“The said second party further agrees to make a loan to said first party in the sum of fifteen hundred (1,500) dollars, to be paid back by said first party to said second party. * * *

“The said first party in consideration of the premises, hereby promises and agrees that on the performance of the conditions and promises by said second party hereinbefore set forth, the said first party will occupy the buildings when completed and operate and use the said buildings and premises for the purpose of manufacturing machinery and such other work incident thereto. * * *

“ It is agreed that when said first party begins operations upon said premises that they will organize a company to be known as the Western Michigan Tool Works. * * *

“ In witness whereof the said parties have hereunto set their hands the day and year above written.

“ John C. De Brtjyn,

“Nicholas Bosch,

“John Boda,

“ Composing the Members of the Valley City Machine Works of Grand Rapids, Mich.

“ Board of Trade of the City of Grand Haven, Mich., by

“ Dudley O. Watson,

‘ ‘ WILLIAM ThIELMAN. ”

Some modifications were added to the contract under date of December 5th, which it is not necessary to state here. When this contract was drawn, Mr. Watson and Mr. Thielman supposed the board of trade was incorporated. It turned out upon the trial it was not. When the plans for the building were received, they called for a more expensive building than Mr. Watson and Mr. Thielman expected, and there was some modification made December 5th, and some delay growing out of the situation ensued. The following letter was sent by defendants:

“Grand Rapids, Jan. 15, 1901.

“Mr. D. O. Watson.

“Dear Sir: From our conference with you the last time you were here relative to Grand Haven Board of Trade and ourselves, we expected some answer from you by this time. I write for such information as you can give us. We are obliged to give Mr. Ranniville, from whom we rent, an answer what we intend to do about staying in present quarters. To sign a lease now might cause us considerable trouble when we get ready to move.”

Soon after this letter was sent some of the complainants learned it was not the intention of the defendants to remove their entire plant to Grand Haven, and upon inquiry of defendants it developed that they intended only to move that portion of their plant engaged in the manufacturing of ironworking machinery. This portion of their business began, according to the testimony of defendants upon the trial, in the spring or summer of 1900. Some attempt was made to harmonize the differences between the parties, which failed. No part of the plant was removed to Grand Haven, but a part of it was removed to Holland.

In October, 1901, Daverman & Daverman sued Mr. Watson and Mr. Thielman, claiming $400 for preparing the plans for the buildings mentioned in the contract. The complainants, in January, 1902, filed this bill of complaint, setting out in detail what has been here recited, and also averred that defendants threatened to sue complainants for a breach of said contract, and asked that it might be canceled.

It is clear from what we have already said that the only purpose of complainants in causing negotiations to be entered into with defendants was to secure the removal of their plant to Grand Haven. It is equally clear that the only contract which Mr. Watson and Mr. Thielman were authorized to make, and the only one they supposed they were making, was one which should secure the removal of the plant of defendants from the city of Grand Rapids to the city of Grand Haven. The construction now sought to be given to this contract is not such a one as complainants authorized to be made, nor such as defendants had any reason to suppose Mr. Watson and Mr. Thielman were authorized to make, and it should be canceled.

The decree is affirmed.

The other Justices concurred.


text:
    HELLER v. PEOPLE’S SAVINGS BANK.
    Garnishment— Affidavit—Amendment.
    An affidavit for garnishment describing the suit to which it is ancillary as pending when in fact it has ripened into judgment, cannot he amended on appeal to the circuit court to conform to the fact, as the garnishee has a right to rely upon the accuracy of the statements in the affidavit.
    Error to Saginaw; Snow, J.
    Submitted October 6, 1904.
    (Docket No. 18.)
    Decided November 15, 1904.
    Garnishment proceedings by Adolph G. Heller and Daniel E. Patzer against the People’s Savings Bank as garnishee of Mary Smith, defendant. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      John A. Combs (James H. Davitt, of counsel), for appellant.

      Hugo P. Geisler, for appollees.
   Carpenter, J.

Plaintiffs are assignees of a judgment obtained before Edward S. Pease, a justice of the peace in the county of Saginaw, against George W. Smith and Mary Smith, his wife. • They commenced this garnishment proceeding before Theodore N. Eiler, another justice of the peace in Saginaw county. The affidavit for garnishment stated that:

“Mary Smith, widow of George W. Smith, is justly indebted to said Adolph G. Heller and Daniel E. Patzer in the sum of $300, or thereabouts, upon a judgment heretofore rendered by Edward S. Pease, a justice of the peace in and for said county of Saginaw, for $288.88, damages and costs, and for the recovery of said demand said Heller and said Patzer have commenced a suit before Theodore N. Eiler, justice of the peace in and for the city of Saginaw and county aforesaid.”

In fact, no suit was commenced upon said judgment, the design of said plaintiffs being to carry on the garnishment proceedings as ancillary to the judgment already obtained. The justice rendered judgment for the garnishee defendant. An appeal was taken , to the'circuit court. That court permitted plaintiffs to file an amended affidavit of garnishment, which differed from the first, in that it particularly described the judgment assigned to plaintiffs, and. contained no statement that suit had been commenced upon the same. The trial in the circuit court resulted in a judgment for plaintiffs.

The important question raised by this appeal is this: Had the circuit court authority to permit plaintiffs to file-their amended affidavit of garnishment ?

Garnishment proceedings are always ancillary to a principal suit which is either pending or determined. The first affidavit of garnishment clearly described that principal suit as pending. It was in fact, as described in the amended affidavit, already determined. It was certainly proper, if not' necessary, to state in the first affidavit whether the principal suit was pending or determined. And as the liability of the defendants in garnishment would depend in a measure upon the result of said principal suit (see 1 Comp. Laws, § 1000), they had a right to rely upon the accuracy of this statement. The amendment then materially changed the affidavit of garnishment.

While clerical errors may be corrected (see Wattles v. Wayne Circuit Judge, 117 Mich. 662; Union Nat. Bank v. Muskegon Circuit Judge, 117 Mich. 678; Emerson v. Spring Co., 100 Mich. 127), I think it clear that material changes cannot be made by amending affidavits of garnishment. If changes as material as this may be so made, it is difficult to understand why defects in an affidavit cannot be cured by amendment. We have held such defects fatal. See Coe v. Hinkley, 109 Mich. 608; Weimeister v. Manville, 44 Mich. 408; Conway v. Ionia Circuit Judge, 46 Mich. 28. They would not have been fatal if they could have been cured by amendment.

Judgment must be reversed, with costs of both courts. No new trial is awarded.

The other Justices concurred.


author: Moore, C. J.

text:
    AIRIKAINEN v. HOUGHTON COUNTY STREET-RAILWAY CO.
    ' 1. Witnesses—Examination—Harmless Error.
    The error in overruling a proper question to a witness is cured by subsequently allowing a question calling for a similar answer to be put and answered.
    2. Same.
    Asking an improper question cannot be regarded as prejudicial, where the court promptly sustained an objection to it and stated that it was improper, and objecting counsel made no request to charge in reference to it.
    3. Trial—Argument of Counsel—Reference to Absence of Witnesses.
    Where, in an action against a street-railroad company for negligence, it appeared that there were upwards of 50 passengers on thé car at the time of the accident, and the company produced only the motorman and one passenger as witnesses, and counsel severely criticised one of plaintiff’s witnesses, counsel’s argument on failure of the company to bring in the conductor or other passengers, if unwarranted, is unprejudicial.
    4. Street Railroads—Killing Stock—Negligence—Care Re- , quired—Instructions.
    In an action against a street-railroad company for negligently killing a cow on its tracks, instructions as to care required examined, and held not prejudicial to defendant.
    5. Same—Evidence—Sufficiency.
    Evidence examined, and held to make a case for the jury.
    Error to Houghton; Streeter, J.
    Submitted October 7, 1904.
    (Docket No. 44.)
    Decided November 15, 1904.
    Case by Charles Airikainen against the Houghton County Street-Railway Company for the negligent killing of a cow. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Gray, Haire & Stone, for appellant.

      W. A. Burritt, for appellee.
   Moore, C. J.

In August, 1902, a cow belonging to plaintiff, which he allowed to run at large, was killed while on the track near a crossing, by a car belonging to the defendant. From a judgment in favor of the plaintiff the case is brought here by writ of error.

Counsel for appellant say the questions involved are:

(1) Whether the court erred in refusing to permit the witness Davey to testify whether, in his judgment, the cow could have got across the track before the car struck it if it had not suddenly stopped.

(^) Whether the following question, put by plaintiff’s counsel to the witness Wint, was not improper, and prejudicial to defendant, viz.: “You are the man that was running the car at the time Mr. Boivin was injured ?”

(3) Whether the remarks of plaintiff’s counsel to the jury, suggesting that, if the defendant had put the conductor and the fifty-seven passengers on the car upon the stand, they would have testified against defendant, were not improper, and prejudicial to the defendant.

(4) Whether the court erred in refusing to instruct the jury as requested by defendant in its third request to charge.

(5) Whether the court erred in instructing the jury upon the question of what constitutes gross negligence.

(6) Whether the court erred in refusing to direct the jury to find a verdict for the defendant as requested by its fourth request to charge.

(?) Whether the court erred in overruling and not granting defendant’s motion for a new trial for the foregoing reasons, and because the verdict of the jury was against the weight of evidence.

We will consider these questions in the order presented by counsel.

Mr. Davey was a passenger. He testified to seeing the cows, and the distance the cows were from the car, and what they did. He was then asked:

Q. When you saw her step upon the track, did you think that she would clear the track before the car reached her ?”

Upon objection the question was excluded. We do not need to decide whether this was error, because almost immediately, upon the cross-examination, he stated:

‘ ‘ I did not see it [the cow] stop, but it was on the track the last time I saw it. I thought it was going to get across, and was surprised that the collision ocourred.”

It will be observed the defendant obtained the opinion of the witness as fully as though the question of counsel had been answered, and the error, if it was one, was not reversible error.

The record shows in relation to this assignment of error as follows: Mr. Wint was the motorman. At the commencement of his cross-examination the following occurred :

CiQ. You are the man that was running the car at the time Mr. Boivin was injured ?

Mr. Gray: If your honor please, I have been anticipating something of that kind. I think it is entirely improper. No reference should be made to any prior accident. It certainly will tend to prejudice the jury.

‘ ‘ The Court: I think that is so, Mr. Burritt. It does not seem to me to be necessary to go into the facts of other accidents. You cannot prove negligence in this accident by other accidents.

Mr. Burritt: That is not the purpose. It is only to refresh the witness’ memory.”

This occurrence was one of the reasons assigned on the motion for a new trial. In disposing of the motion the trial judge said:

“ In the brief counsel urges:

“ ‘True, the court held that the question was improper, but in a very mild way, and we do not think it can be said that the impression produced (and, we say, deliberately and intentionally produced) on the minds of the jury was removed by the court’s remarks.’

“ I can hardly agree with counsel. An explanation was made, although it does not appear in the record, which would do away entirely with any question of delibei’ate intention on the part of the counsel in asking the question. Nor does it seem to me a very mild way in which the court held the question improper. Mr. Gray did not simply object to the question. With force he characterizes it as entirely improper, and designed to prejudice the jury; and, while making no formal objection, his remarks were adopted and enforced by the court in the first sentence, ‘I think that is so, Mr. Burritt,’ including everything and indorsing everything that has been said by Mr. Gray with regard to the question. At the time that seemed to be all that was necessary, even supposing the question had been one deliberately introduced in the case by the attorney. If it were not enough in the mind of the objecting counsel, he could have requested reference to it in the .charge.”

The question was an improper one. The court so told the jury, and apparently judge and counsel alike thought all had been said that was necessary. If cases are to be reversed because of the situation shown here, it would be necessary to reverse nearly eveiy hotly contested case.

This is based on the following: During the. argument of counsel for plaintiff to the jury the following proceedings were had:

“Mr. Burritt: Where is the conductor that was on that car ?

“Mr. Gray: I object to that, your honor.

“Mr. Burritt: I was saying, gentlemen of the jury, that they say that this lady, our witness, is the star actor. The motorman has testified. Where is the conductor who was running this car, and who had charge of it ? Why don’t they bring him here ?

“Mr. Gray: To that we obiect, your honor, as entirely improper.

“The Court: I think that counsel has a right to comment on witnesses that were not produced that were on the car.

“Mr. Gray: I take an exception.

“Mr. Burritt: I say, gentlemen of the jury, where are the fifty passengers ? The testimony is that there were fifty passengers on the car. We have only one of these passengers here.

“Mr. Gray: We object to that statement for the same reason, and take an exception.

“Mr. Burritt: We might have had, gentlemen of the jury, fifty-seven or fifty-eight star actors here had the railroad company wanted other star actors. They only brought one.”

The defendant had sworn one passenger and the motorman as witnesses. The record shows the car had a conductor and upwards of 50 passengers. It was not shown any effort had been made to obtain their attendance, nor was the absence of any of them accounted for. It is evident counsel had criticised severely one of the witnesses for the plaintiff. Under these circumstances we do not think, if the allusion made exceeded the latitude to which he was entitled in making his argument, that it constituted reversible error.

4, 5, and 6 may be considered together. The defendant offered four written requests to charge. The first two were given. The third and fourth were not given. The third reads as follows :

“ It is not the duty of street-railway companies to stop or reduce the speed of their trains or cars when they see cows or other animals alongside their tracks. It is only when such animals are on their tracks, or the men in charge of the trains or cars have good reason to believe that they will go thereon before said trains or cars shall have passed, that the company is called upon to stop or reduce the speed of such trains or cars. When they have notice or knowledge of such a situation that to proceed will probably result in injury to or the destruction of persons or property, then they are required to use all possible precautions to guard against such injury or destruction ; but until they have notice or knowledge of such a situation it is their right to proceed at the usual speed along and upon their own tracks and right of way, and they will not, in such cases, be liable for injury to or the destruction of persons or property happening upon sudden emergencies which they could not reasonably anticipate. And the court instructs you that in this case the defendant was not obliged to stop its cars, or reduce the speed thereof, at the time and place in question, unless the situation was such that the motorman knew, dr had good reason to believe, that to proceed as he was going would result in injury to or the killing of the cow. If he did not know or have good reason to believe this, then the defendant would not be liable in this case, notwithstanding the cow was killed by being struck by the car. And you are instructed in this connection that the law is slow to impute to men in charge of street railway or other trains or cars carrying passengers such reckless and wanton conduct as would be that of running against animals on the tracks, where the result might be not only the killing of the animals, but the derailing of the trains or cars, and injury to or the death of the passengers; and jurors should not infer such conduct except upon clear proof of its existence.”

The fourth was a request to direct a verdict in favor of defendant.

The first and second of defendant’s requests read:

“ (l) Under the declaration in this case there can be no recovery by the plaintiff for any ordinary negligence on the part of the street-railway company. Plaintiff can only recover in case it is established by a preponderance of the evidence that the acts of the street-railway company, which it is alleged resulted in the killing of plaintiff’s cow, were, under the circumstances testified to, willful, or wanton and reckless. If, therefore, you find from the evidence that the defendant, if guilty of anything, was only guilty of ordinary negligence, or that it was not guilty of willful or wanton and reckless conduct, your verdict should be for the defendant. This is the rule in cases where the plaintiff in a suit is himself guilty of negligence contributing to the injury or destruction of himself or his property, and under the law in this State it is contributory negligence for a person to allow his cows or cattle to run at large without being in the charge of any one. It is for this reason that the plaintiff in this case must prove gross ■ negligence on the part of the defendant, in order' to entitle him to recover.

“ (3) The plaintiff cannot recover in this case unless you find that a preponderance of the evidence has established the fact that the defendant was guilty of gross negligence in the killing of plaintiff’s cow, as testified to. I instruct you that ‘ gross negligence’ means an intentional failure to perform a manifest duty in reckless disregard of the consequences, as affecting the life or property of another, and also implies a thoughtless disregard of consequences without the exercise of any effort to avoid them. Unless, therefore, you find from the evidence that the defendant, when it saw plaintiff’s cow upon the track, or had good reason to believe it would go or stay upon the track, did nothing to prevent running against the cow, but ran on in reckless disregard of the consequences of collision with the cow, you cannot find a verdict for the plaintiff, but must find for the defendant.”

In addition to giving these requests, the judge also charged:

_ “The plaintiff claims there was a clear and unobstructed ■ view, from the point where the cow was struck, up the defendant’s track, for a distance .of several hundred feet, and that the cow was in plain view of the motorman who was running the car, and that he saw, or should have seen, the cow, and her apparent danger. The plaintiff charges the defendant with gross negligence; and, for the plaintiff to recover, he must prove by a preponderance of evidence that the cow was killed as a result of the gross negligence of the defendant. The term ‘ gross negligence ’ means an intentional failure to perform a manifest duty in reckless disregard of the consequences, as affecting the life or property of another. It implies a thoughtless disregard of the consequences, without the exercise of any effort to avoid them; but it is not meant that the motor man must have actually intended to do the particular wrong complained of.

“ It was the duty of the motorman, while running the car, to keep it under control, and to be on the alert to avoid accidents, and, if he saw the cow on the track, or in such close proximity to the track as to be in peril, and he could have avoided the injury by slacking the speed of the car, or by stopping the car, it was his duty to do so, if he could; and his failure to do so would be wanton and reckless conduct—would be gross negligence on his part, which would render the defendant liable for the killing of the cow.”

In the recent case of Kotila v. Street Railway Co., 134 Mich. 314, there is a very full discussion of the care required by motormen in cases like the present. In that case there is a full collation of cases. We think, if there was any one entitled to complain of the charge of the court, it was not the defendant.

Did the court err in not directing a verdict for defendant and not granting, a new trial because the verdict was against the weight of evidence ? We have already-referred to the fact that counsel on both sides assumed the jury were familiar with the premises. The trial judge heard and saw the witnesses. There was testimony on the part of the plaintiff to the effect:

“ There was more than one cow on the track. I think there was about three cows on the track there, feeding, or somewhere, and I said to Mrs. Maynard, ‘ they will run over them cows sure,’ and I watched them for that purpose—for a witness—and the other cows got off, and this one did not. The cows were right inside the tracks between the rails. When I first saw the cows on the track I could hear the car coming up the hill. That was when I made the remark to Mrs. Maynard, and then I watched the car, of course. It was a good ways from the cows, too. The cows were on the track when the car came in sight, and they continued on the track. The car never slackened at all—just like it comes down the hill any time. They generally slacken there at the curve, but they did not. The car was running quite fast. From the point where the cows were standing on the track you can see a long ways up the track. There is nothing along the track to obstruct the view down the track. * * * I cannot

say how long the cow was on the track, because I do not know how long it would take them to come down from the hill up there. They must have been up there by Klondyke street anyway, when I heard them coming. Two of the cows got off the track. The second cow barely got off just in time, and the other one was nearly off, all but her hind hip. The speed was not slackened at all from the time the car got in sight before it struck the cow.”

On the cross-examination the motorman testified, among other things:

‘ ‘ From the point where the cow was struck by the car, and up the track in the direction of Calumet, there was a clear, unobstructed view for several hundred feet. It is down grade as you come this way, and the car I had charge of was propelled by electric power, and I was acting in the capacity of motorman. I had the hand brake on, and I was coming down the hill the usual gait. When I want to give the car speed, I let off the brake and put on power. I reduce speed, of course, by putting on the brake. That car had air brakes and hand brakes. As motorman I have perfect control of the car. I can run it up over a high trestle, or in coming down that steep grade I can stop the car at pretty near any point I see fit. I had the brake on at that time. I do not mean by that that the air brake was on. I did not apply the airbrake. You could not stop the car any quicker by the air brake than you could by the hand brake. If I knew I had to stop the car coming down the hill, I could stop it in two car lengths. I could not stop the car coming down that grade within a distance of' forty or fifty feet. It is a conundrum within what distance I could stop the car coming down that hill if I had the air brake on and applied the brake and plugged the car. I could not stop it within the length of the car. If you plug a car, and the circuit break falls out or anything, you would be likely to go a little further. If the circuit breaks do not fall out, I could probably stop the car within a car and a half or two car lengths. When I was coming down that morning I saw those cows by the side of the track, grazing. I was then probably three hundred feet away from the first two. Those two cows were not between the rails then. They were on the side. The third cow was just a little way behind them. The three cows were not inside of the rails when I saw them first. They were walking along when I first saw them, and the next time I looked up they were on the track going across. I continued to look down the track. The cows did not walk by the side of the track at all. They went across the track. They were not standing by the side of the track when I saw them first. They were walking up along taking a bite and walking along. I did not stop to see what they were doing exactly. The last time I saw the cows before they went on the track I was probably two hundred feet from them. They were then going across the track. Of course, I put on the brakes then, and used every effort to stop the car. All I did was to put the brakes on, which reduced the speed.”

There was other testimony in the case. In view of all the testimony, we think it cannot be said there was no case for a jury. Nor is there such a showing as to warrant us in reyersing the case because the trial judge overruled the motion for a new trial.

Judgment is affirmed.

The other Justices concurred. .


text:
    McCRADY v. PRATT.
    ' 1. Parent and Child—Board of Child—Liability of Parent —Evidence. e
    Where suit is brought against a father for the board of his son, the burden is on plaintiff to show, by a fair preponderance of the evidence, that at the time the son went to the plaintiff’s to board, he was authorized to procure board upon his father’s credit, and that the board was furnished relying upon the father as paymaster, and upon him alone.
    2. Same.
    In an action against a father for the board of the son, evidence examined and held that there was none on which to base a finding that the son had authority to bind his father for board after he reached the age of 21.
    Error to Kent; Perkins, J.
    Submitted October 7,1904.
    (Docket No. 47.)
    Decided November 15, 1904.
    Assumpsit by Eliza McCrady against Stephen N. Pratt for services rendered. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      M. C. Huggett, for appellant.

      Smedley & Corwin, for appellee.
   Montgomery, J.

The plaintiff recovered a verdict and judgment of $50.25 for boarding the defendant’s son. The theory upon which the case was submitted to the jury may be best stated -by quoting the charge of the circuit judge:

“It is claimed on the part of the plaintiff that the defendant’s son, Charles M. Pratt, with the knowledge and consent of the defendant, and at his request, came to the plaintiff’s boarding house and requested board, and said that his father would pay for it, as he was learning the drug business and did not earn much money.

“It is claimed by the plaintiff that she relied upon these representations and boarded the defendant’s son, and that at one time when he was sick that she nursed him and took. care of him about two weeks; that he remained with her something like a year, when he began to run behind in his board bill, and shortly afterwards left the city.

‘ ‘ The plaintiff further claims that the defendant, Stephen Pratt, the boy’s father, afterwards came to the city of Grand Rapids, and that she saw him and had a talk with him about the balance due her for the board of his son.

“ Plaintiff further claims that in this conversation defendant admitted that he had told his son to come to Grand Rapids and select a boarding place, and that he would pay his board until he was twenty-one years old. * * *

‘ ‘ On the part of the defendant it is claimed that he never agreed to pay for this board, or any of it; that he never authorized his son to procure board from the plaintiff; and that he did not agree to pay any of the boy’s board after he became twenty-one years of age.

“Now, as a matter of law, I charge you that a father is not ordinarily liable for the board furnished to his son, unless he agrees to pay the same; and I charge' you that unless you find that the father told the son to pick out a good boarding house, and that he would pay his board, the father is not liable. That is, the defendant in this case is not liable. But should you find from the evidence in the case that the defendant did agree to pay his son’s board, then he is liable, and the plaintiff should recover.

“The burden of proof to prove this agreement rests upon the plaintiff. She must satisfy your minds by a fair preponderance of evidence that, at the time this son came to her boarding house, he was authorized by the father to procure board upon the father’s credit, and that she boarded the son, relying upon the father as the paymaster, and upon him alone.”

This instruction fairly states the rule of law. The serious question, however, is whether there is a basis for a finding that the son had authority to bind the defendant for his board after he became 21 years of age. There is no proof in the record that the defendant agreed with plaintiff, or any one acting for her, to pay his son’s board for any period whatever. The only evidence of any agreement to pay the son’s board for any time is found in defendant’s statement to plaintiff, as testified to by her, which was, in substance, that defendant had agreed with his son to pay his board until he was 21. The payments for the son’s board were made by remittances of the father to the son. There was ho privity between defendant and plaintiff, unless it be said that the promise of defendant to his son carried with it authority for the son to pledge his father’s credit. Such an interpretation of the testimony • would be of doubtful accuracy at best, but, if it be adopted, that authority was clearly limited to the period covered by the promise to the son. In other words, if there was an agency created, it was a special agency, and any attempt to bind the defendant for the son’s board after the latter reached his majority was in excess of the authority granted.'

This is not a case in which the agent has been held out as having authority beyond that actually given to him. There was no communication whatever between the plaintiff and defendant, and, as the defendant during his son’s minority sent the money to pay his board bills to the son, there is no evidence of any satisfaction of the alleged contract by which the latter undertook to bind him.

The plaintiff’s case rests finally upon the son’s representations of his authority. That, under the circumstances of this case, an alleged principal cannot be bound by the false representations of an assumed agent as to his authority, is well settled. Mechem on Agency, § 100; Rice v. Peninsular Club, 52 Mich. 87; Swanstrom v. Improvement Co., 91 Mich. 367.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Carpenter and Grant, JJ., concurred. Hooker, J., did not sit.