text:
    LUCKHURST v. SCHROEDER.
    1. Evidence — Similar Acts — Intent—Harmless Error.
    Whether or not evidence was competent that defendant two days prior to turning his horse at and upon plaintiff forcing him out of the highway and into a ditch, had conducted himself in a hostile and malicious manner towards the plaintiff; also that he had nearly a year previously run into plaintiff and forced plaintiff into a water hole, exclusion of this proof was not prejudicial to the plaintiff, where the record showed that the evidence was later admitted.
    2. Same — General Issue — Notice—Affirmative Defense- — Trespass on the Case.
    Defendant’s claim that his horse shied at some hay that lay in the road and ran upon or at plaintiff was not an affirmative defense under a count in trespass, and the testimony was admissible to show that the defendant did not intend the act, under the plea of the general issue.
    3. Trial — Misconduct on Counsel — Witnesses.
    There was no such prejudicial misconduct on the part of defendant’s counsel as to call for a reversal of the judgment for defendant in an action for negligently driving at and upon plaintiff, forcing him into a ditch along the highway, where the attorney for defendant asked of plaintiff, whose attorney had been a witness in his behalf, whether the case was not in his hands under an agreement to pay him half of the proceeds, where the court sustained the objection made and would not permit the witness to answer.
    4. Highways and Streets — Negligence — Contributory Negligence.
    Where the court charged the jury in substance that the plaintiff had a perfect right to walk in the part of the highway on either side of the beaten track, and if defendant, seeing him, turned his horse upon him, intending to compel plaintiff to step aside, and if plaintiff did step to one side and in doing so fell and received injuries, he would be entitled to recover, the instructions sufficiently covered plaintiff’s requests to charge that if the jury found the defendant guilty of wilful and reckless conduct, the action would lie irrespective of his contributory negligence.
    5. Same — Trial—Instructions.
    Where the court in his charge employed substantially the same language that plaintiff’s requests to charge contained in relation to the issue of contributory negligence, any confusion that may have resulted in relation to the degrees of negligence was chargeable to plaintiff, who could not complain.
    6. New Trial — Impeachment—Motions—Evidence.
    Upon motion for a new trial newly discovered evidence that only tends to impeach is not a. sufficient ground to set aside the verdict and judgment.
    7. Same — Discretion.
    The granting of such motion is largely a matter for discretion of the court.

      8. Same.
    And where plaintiff filed three affidavits tending to impeach the testimony of one of the witnesses of the defendant, who procured the affidavits of eleven persons contradicting the three affiants and when the newly discovered evidence would not probably bring about a different result on the trial the lower court was right in declining to grant a new trial.
    Error to Shiawassee; Miner, J.
    Submitted October 16, 1914.
    (Docket No. 120.)
    Decided December 19, 1914.
    Case by John Luckhurst against Henry Schroeder for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      George E. Pardee and Leon F. Miner, for appellant.

      Pulver & Pono.I, for appellee.
   Stone, J.

In this action the plaintiff seeks to recover damages for personal injuries sustained by him, by reason of the defendant’s alleged unlawful conduct in wilfully driving his horse upon, or so near, the plaintiff in a public highway as to cause the plaintiff to fall, or to be thrown with great force and violence, upon the ground.

The declaration contains three counts. The first two counts are for an assault and battery on the plaintiff, the first charging that, with force and arms, the defendant, on September 9, 1912, did with great force and violence drive a horse and carriage “toward and upon the said plaintiff, and by means of the premises, he, the said plaintiff, was then and there cast and thrown with great force and violence upon the ground,” by reason whereof the plaintiff was greatly bruised, hurt, and wounded, and has suffered great bodily and mental distress, etc.

The second count is very similar to the first, except that it charges that the defendant drove the horse “with great force and violence upon and against the above-named plaintiff, who was then and there lawfully walking upon the said highway; by means whereof the said plaintiff was then and there thrown and pushed * * * from out of said highway and into a ditch along the side thereof.”

The third count charges the defendant with the negligent driving of said horse. After stating that the plaintiff was walking upon the grass at the left side of the main traveled part of the highway and using due care in his conduct to protect himself from injury and collision, it alleges as follows:

“That said defendant did not then and there drive along said highway at a reasonable rate of speed, and did not keep his horse under control, and did not use reasonable care in the driving of said- horse and carriage on said highway, * * * but did wilfully, wantonly, recklessly, maliciously, and with gross negligence, drive into and against said plaintiff, and said defendant did at the aforesaid time and place drive the horse at an excessive rate of speed, to wit, 15 miles per hour, and did wantonly, wilfully, maliciously, and intentionally, and with gross negligence, and in violation of the duty of defendant, turn said horse and carriage from the main traveled part of the highway toward said plaintiff” — •

When the plaintiff was then at a point one rod in front of defendant, and because of that fact plaintiff was compelled to move quickly to get out of the way of said horse, and was compelled to step back to get out of the way, and in so doing stepped against a raise of ground which was along said highway, and was thrown backward upon his back and shoulder and suffered great injury, etc.

The plea was the general issue.

The parties are farmers living on and owning farms nearly opposite from each other, where they have lived for some years. The plaintiff was 71 years old and the defendant about 44 at the time alleged.

Upon the trial it appeared that on the day in question, at about 8:30 o’clock a. m., the weather being clear and bright, the plaintiff was walking east along the highway. He testified that he was walking on the sod about six feet north of the edge thereof, or a distance of some eight feet from the north wagon track, when he met the defendant; that the defendant had been driving in the track, but turned out when about ten feet away and drove right upon or onto the plaintiff, so that the horse’s breath came in his face; and that he jumped and fell, sustaining the injuries complained of. The plaintiff does not claim that he was actually hit by the horse, but that, owing to the sudden driving of the horse so near to him, he jumped aside to save himself from being injured by the horse, and fell. No other person save the parties was present, except defendant’s little girl, who was not sworn. The plaintiff testified to defendant’s manner, and that he had an angry expression on his face; that defendant did not stop his horse, but pulled him back into the track and drove on.

Defendant, in his testimony, denied having made any assault whatever upon the plaintiff, and denied that he drove his horse towards or against the plaintiff, but testified that as the horse was nearly opposite the plaintiff it shied out of the road towards the plaintiff by reason of a bunch of hay at the side of the road, at which time defendant testified plaintiff stopped and faced south and looked at him as he drove by.

A reference to the record will show that there was a sharp conflict in the evidence upon every essential point claimed by the plaintiff. Upon the trial the plaintiff attempted to prove certain conduct of defendant tending to show malice and ill will on September 7th, two days before the alleged injury, at defendant’s house, where plaintiff had gone to notify defendant to perform labor on the highway, the plaintiff being an overseer of highways at that time. The plaintiff also attempted to show certain conduct of the defendant in December, 1911, at which time it was claimed that the defendant drove the plaintiff into a water hole by turning his horse near to or upon him.

It having appeared by the opening statement of counsel that on September 7th it was not claimed that defendant made any threats, the court sustained the objection made by the defendant to this offered testimony, to which plaintiff’s counsel duly excepted. An examination of the record shows that the court intimated to counsel that it would, for the time being, sustain the objection, but would consider the matter further. It appears that upon cross-examination of the defendant the whole subject-matter was gone into, and upon rebuttal this testimony which had been excluded was received, but counsel for the appellant claims that the testimony came in too late to have its proper effect upon the jury, and that the weight of the same had been destroyed by the former adverse ruling.

The testimony of the defendant tending to show that the horse had shied by reason of there having been some hay at the side of the road was objected to by plaintiff’s counsel under the pleadings; it being the claim of the plaintiff that it was an affirmative defense, and could not be shown under the general issue. The court ruled otherwise, and plaintiff excepted.

Further complaint is made by appellant upon what is termed the “misconduct of counsel.” Upon cross-examination of the plaintiff the following question was asked:

“Q. You employed counsel in this case, did you not, under a contract by which they were to receive 50 per cent, of the amount recovered?
“Plaintiff’s Counsel: I object to that.
“The Court: Objection sustained.
“Plaintiff’s Counsel: And I take an exception to the asking of it.
“Defendant’s Counsel: It isn’t error to ask a question when the court, in its discretion, can admit it.
“Plaintiff’s Counsel: I take an exception to the remarks of counsel.”

The record also shows that one of plaintiff’s counsel, being the attorney of record, testified in the case as a witness on behalf of the plaintiff.

At the close of the evidence the first and second counts in the declaration were stricken out, and the case was submitted to the jury upon the third count. We find no assignment of error upon this ruling.

Plaintiff requested the court to charge the jury to the effect that, although the plaintiff may have been guilty of contributory negligence, yet, if they should find that defendant was also guilty of wilful, wanton, and reckless conduct, that the negligence of the plaintiff would not bar his right to recover.

Error is assigned upon a portion of the following excerpt from the charge of the court:

“In the first place, was the plaintiff in this case injured by negligence of the defendant, Henry Schroeder, without any negligence on the part of the plaintiff ? * * * In this case, if the defendant was going along there in a careful, prudent manner, and as he came opposite Mr. Luekhurst his horse was scared and he exercised all the due care and prudence which a man of ordinary prudence would have done under the same circumstances, and yet, notwithstanding that, this horse shied and came so near Mr. Luekhurst that Mr. Luekhurst was compelled or did step aside, and his injury was received by that reason, then the defendant would not be guilty of any negligence, for the reason that he had done all that a careful, prudent person would have done under like circumstances. But if, on the other hand, in going along there, he saw and observed Mr. Luekhurst, and he did not use the care which a person would have exercised — that is, an ordinary careful and prudent person would have exercised — under the same circumstances, and 'by reason tnereof, and without any negligence on the part of Mr. Luckhurst, and (I say) by reason thereof his horse came towards Mr. Luckhurst, and Mr. Luckhurst, in order to avoid him, was compelled to get out of the way, and he received injuries by reason thereof, then defendant would be liable for such damages as resulted on account of his negligence. Or if you should find that Mr. Schroeder wilfully drove the horse out one side there, for the purpose of driving it upon Mr. Luckhurst or driving it near him, and you find that Mr. Luckhurst, acting in a careful, prudent manner, and without any negligence on his part, stepped one side and fell down and received injuries, then he would be entitled to recover. So the question, gentlemen, after all, depends upon the negligence of Mr. Schroeder and lack of negligence on the part of Mr. Luckhurst. If Mr. Schroeder was guilty of negligence, as I have stated to you, and Mr. Luckhurst was not guilty of any negligence, and Mr. Luckhurst received injuries by reason of the negligence of Mr. Schroeder, then plaintiff is entitled to recover. But if it was an accident upon the part of the horse of Mr. Schroeder being scared, and Mr. Schroeder used ordinary care in the driving his horse, such as a careful, prudent man would have used under the samé circumstances, then plaintiff cannot recover.”

The jury returned a verdict for the defendant, and a judgment was entered accordingly. The plaintiff moved for a new trial:

Because the verdict therein was against the great weight of the evidence; because the verdict rendered by the jury was contrary to the charge of the court; because of newly discovered evidence of certain witnesses named in the motion; because of the refusal of the court to give plaintiff’s requests to charge; and because the court charged the jury that, although they might find that the defendant was guilty of wilful, intentional, and malicious driving into the plaintiff, said plaintiff could not recover, unless he was free from contributory negligence.

The court denied the motion, filing reasons therefor, to which denial plaintiff duly excepted, and he has brought the case here upon writ of error.

(1) The first group of assignments of error deal with the alleged error in the rulings of the court in rejecting testimony tending to show malice and ill feeling on the part of the defendant towards the plaintiff.

(2) Proving affirmative befense under the general issue. This assignment alleges error in permitting the defendant to .show that the cause of his horse shying and running onto the plaintiff was because of a bunch of hay in the highway.

(3) Misconduct of counsel. This assignment refers to conduct of defendant’s counsel in asking plaintiff on the trial if he was not under contract to pay his attorneys one-half of all he recovered.

(4) Refusing to give plaintiff’s requests to charge as above stated.

(5) Errors in the charge of the court above referred to.

(6) Denial of the motion for a new trial, especially because of the refusal to grant plaintiff’s motion for a new trial on the ground of newly discovered evidence.

1. Taking these questions up in the order in which they are presented by counsel, we may ask: Should the case be reversed because the court first excluded testimony offered by the plaintiff to show that on September 7th — two days before the alleged trespass— defendant was guilty of conduct indicative of malicious motives against the plaintiff; and, also, that in December, 1911, the defendant wilfully and mali ciously ran into the plaintiff on the highway with his horse and buggy and drove him into a water hole? It will be borne in mind that later in the trial of the case this evidence was received, and was submitted to the jury. While we see no good reason for the ruling of the trial court in excluding this evidence in the first instance, yet, under our decisions, we must hold that, it having been admitted at a later stage of the trial, the ruling was at most harmless error. Chambers v. Hill, 34 Mich. 523; Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887); Pierson v. Railroad Co., 149 Mich. 167 (112 N. W. 923).

'2. It is claimed that the court erred in admitting evidence under the general issue offered by the defendant tending to show that his horse was scared at a bunch of hay in the road and shied towards plaintiff. It is said that this was an affirmative defense. In this contention we cannot agree with plaintiff’s counsel. The first two counts of the declaration, which were standing when this ruling was made, charged that defendant, with force and arms, drove his horse upon the plaintiff and injured him. It was competent for the defendant under the general issue to show that he did not wilfully drive his horse upon the plaintiff, but that his horse became scared and shied out of the road. Instead of being an affirmative defense, it was an attempt to show that the defendant was not guilty of the trespass charged. We find no error in this ruling of the court.

3. This brings us to alleged misconduct of counsel. It will be borne in mind that the court sustained the objection of plaintiff’s counsel, and ruled that defendant could not show that plaintiff was under contract to pay his counsel 50 per cent, of the amount recovered. The exception seems to have been taken to the asking of the question as misconduct of counsel. It should be noted that the plaintiff’s attorney of record was a witness for the plaintiff upon-a material matter on the trial of the case. We think that, under such circumstances, it was competent for the defendant' to show that plaintiff’s said counsel was interested in the result of the suit as bearing upon his credibility as a witness, and that it would not have been error had the court permitted the question to be answered. We do not think that plaintiff was injured by the ruling of the court, nor do we think that the defendant’s counsel was guilty of misconduct in asking the question under the circumstances as disclosed in this record.

4. It is claimed that the court erred in not charg-. ing the jury that, although the plaintiff may have been guilty of contributory negligence, yet, if the jury should find that defendant was also guilty of wilful, wanton, and reckless conduct, that the negligence of the plaintiff would not be a bar to his right to recover. A careful reading of the charge will show that the court attempted to cover different phases of the case claimed to have been made by plaintiff under the third count in the declaration. We find that the court did charge the jury in the following language:

“I charge you that the plaintiff would have a perfect right to walk' in the part of the highway on the north side of the beaten part of the track, and it would make no difference whether he was on the left side or the right side of the highway, and that the defendant had a right to drive his horse along the highway, but if the defendant at that time, seeing the plaintiff, turned his horse out for the purpose of driving it upon him, or for the purpose of driving it near.him, so it would compel or might compel the plaintiff to step aside, and if he did so, and the plaintiff did step aside, and in doing so fell down and was injured, then plaintiff would be entitled to recover.”

Here we find an explicit charge by the court that the plaintiff might recover in case of the wilful or wanton assault upon him by the defendant, without reference to the contributory negligence of the plaintiff. We think this gave the substance of the plaintiff’s requests upon that branch of the case.

5. Did the court err in that portion of its charge above quoted? In this connection, it is proper for us to examine some of the plaintiff’s requests to charge. By their eighth request plaintiff’s counsel had requested the court to charge the jury as follows:

“I instruct you that the burden of proof is on the plaintiff, not only to show negligence and misconduct on the part of the defendant, but also to show ordinary-care and diligence on his own part, and if you should find that the plaintiff did not use ordinary care and diligence, and that the want of same contributed to the injury, and that defendant was guilty of no more than ordinary negligence, you should return a verdict of no cause of action.”
“Tenth. I instruct you as to the distinction between ordinary and gross negligence as follows: Ordinary negligence is a disregard of those rules of conduct which would govern men of ordinary care and prudence. It is not required of a man that he should use the highest degree of care, but he should always be as careful as it is possible for him to be. It is incumbent upon him only to be as careful as men of ordinary prudence and judgment would be. Was the defendant lacking in this regard ? Were the acts and conduct of Henry Schroeder, the defendant, such as a man of ordinary care, prudence, judgment, and caution would not have exercised under the same circumstances. Now, if he was not as careful as a man of ordinary prudence would have been under the same surround-' ings, then he would be guilty simply of what the law calls ordinary negligence; and if his conduct was more than this, then the next inquiry would be whether the plaintiff was himself free from negligence which contributed to the injury. That is, would the injury have been brought about if the plaintiff had been himself as careful as men of ordinary prudence would have been under the same circumstances ? The plaintiff was not obliged to use the highest degree of care to avoid injury to himself. He was only required to use that degree of prudence and caution which men of ordinary prudence and caution would use under precisely or very similar circumstances, as you may find them to be from the testimony in this case.”

It seems, therefore, that plaintiff, in his requests to charge, introduced the subject of contributory negligence. The reading of these requests shows that they are substantially the language used by the court in its charge to the jury on the subject of contributory negligence. The difficulty arises in the mingling of the degrees of negligence; and if there is any apparent confusion in the charge, we think that plaintiff’s counsel are responsible for it.

We think, however, that it clearly appears that the court charged the jury, in substance, that if the defendant was guilty of gross negligence by the wilful driving of his horse upon or against the plaintiff, that there might be recovery, notwithstanding the contributory negligence of the plaintiff, and we think the jury must have so understood the charge. We find no error here of which the plaintiff can complain.

6. Questions raised upon the motion for a new trial. We have examined the record with care, and are unable to say that the verdict of the jury was either against the great weight of the evidence, or that it was contrary to the charge of the court.

We have examined the affidavits in support of the claim of newly discovered evidence. Upon the trial of the case the defendant’s wife had testified that she, while standing near defendant’s house, saw plaintiff and defendant at the time of the alleged injury, and gave testimony tending to show that she saw the transaction, and her testimony corroborated that of the defendant. After the trial the plaintiff had three persons make affidavit that they had experimented nearly a year after the transaction, by standing where it was claimed defendant’s wife stood, and that they were unable, by reason of bushes and other obstructions, to see the place where it was claimed the parties met. Not only did this alleged newly discovered evidence tend to impeach defendant’s wife, but the affidavits of the three persons were contradicted by affidavits of 11 other persons, who claimed to have experimented in the same manner, thus corroborating defendant’s wife in her testimony. Ordinarily, the court will not grant a. new trial on the ground of newly discovered evidence where that evidence is for the purpose of impeachment. Spray v. Ayotte, 161 Mich. 593-595 (126 N. W. 630). And we should also add that the matter of granting a new trial on the ground of newly discovered evidence was largely a matter of discretion for the trial court. Hammond v. Pullman, 129 Mich. 567 (89 N. W. 358). We cannot say that the newly discovered evidence, in the light of this record, would probably cause a different result to be reached on another trial, and we think the court did not err in denying the motion. Morin v. Robarge, 132 Mich. 337 (93 N. W. 886).

We find no error in the record of which plaintiff can complain, and the judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    HARLOW v. JASEPH.
    1. Contracts — Rescission — Exchange — Mistake — Meeting of Minds.
    One of the parties to an exchange, who executed a bill of sale as a part of the transaction, containing a clause whereby he assumed a lease, but did not intend to agree to any such provision and did not receive a copy of the bill of sale, but afterwards corrected a mistake, or incorrect description in one of the other papers constituting a part of the transaction at the request pf the other party, also selling the property soon after, so that he could not place the plaintiff in statu quo, affirmed or ratified the alleged error in his bill of sale and became liable to the plaintiff in an action. of assumpsit for the rent which plaintiff was compelled to pay on the lease.

      2. Principal and Agent — Ratification.
    The principal may ratify the unauthorized act of his agent, in writing into an instrument a clause that he was not authorized to insert.
    3. Same — Trial—Directed Verdict.
    Although the questions involved in these respective claims of plaintiff and defendant are generally held to he mixed questions of law and fact, the trial court did not err in directing a verdict for the plaintiff on the theory tha,t only one inference could be drawn from the facts.
    Error to Kalamazoo; Stewart, J.
    Submitted October 13, 1914.
    (Docket No. 92.)
    Decided December 19, 1914.
    Assumpsit by William O. Harlow against Edwin Jaseph on a covenant to assume a lease. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      E. M. Irish, for appellant.

      Jackson & Fitzgerald, for appellee.
   Stone, J.

This is an action of assumpsit brought to recover of defendant the amount of rent of a certain store building containing a stock of goods sold by plaintiff to defendant, which rent the plaintiff claims defendant had agreed to assume and pay, and save harmless the said plaintiff on his covenant to pay rent in a certain lease. Defendant having refused to pay such rent, the same was paid by the plaintiff, who brings this action to recover the amount so paid. The history of the dealings of the parties was as follows:

On January 15, 1913, the plaintiff owned and possessed a stock of sporting goods contained in a store located at 122 West Main street, Kalamazoo. He held the premises under a written lease from the Home Savings Bank of that city. The said bank held the store under another lease from Anna E. and John B. Doyle. The lease from the bank to the plaintiff contained the following clause:

“This lease is made subject to the Home Savings Bank lease of said property, a copy of which is hereto attached.”

The lease from the Doyles to the bank contained the following clause:

“And it is agreed by the. parties hereto that said second party will not assign or transfer this lease or sublet said premises or any part thereof, without the written assent of said party of the first part, except for office or desk room.”

There was a written consent by the Doyles to the sublease from the bank to the plaintiff. Neither the Doyles nor the bank ever signed a consent for the defendant to occupy the store. The defendant owned a farm of 160 acres, 20 acres of it, however, was a wood lot, and did not adjoin the other property, but was a considerable distance therefrom. After some preliminary negotiations, the parties agreed to trade the stock of goods for the 160-acre farm; the plaintiff claiming that defendant agreed to take over the lease of the store. The plaintiff was to give defendant a mortgage back of $3,200 on the farm. The defendant and his wife executed a deed of the farm to the plaintiff, and the latter executed a bill of sale of the stock of goods to the defendant, and plaintiff and his wife executed the mortgage back to the defendant. The defendant claims that the bill of sale was not read over or delivered to him. It appears that the bill of sale was left with Mr. Frost, the attorney who drew the papers for the parties, and that a copy thereof was delivered to • the plaintiff. The bill of sale contained the following clause:

“Said party of the second part is to assume and save harmless the party of the first part from the covenants of the lease entered into between himself and the Home Savings Bank.”

Attached to the plea of the general issue was a notice to the effect that the defendant would show on the trial that the above clause was inserted in said contract without the knowledge of the defendant; that he did not know it was there; that he never agreed to said clause verbally or in writing, and never intended to; and that said clause was without consideration and void, for the reason that said plaintiff never had any lease with the Home Savings Bank which he could legally transfer to defendant, and no lease or contract under which he could legally sublet the whole or any part of said store. Whether or not defendant did agree to assume the covenant of the lease, and save harmless the plaintiff, was a disputed question upon the trial. It did appear that neither the lease nor a' copy thereof, from the Doyles to the bank, was attached to the plaintiff’s lease, nor was the same shown to defendant. Mr. Frost prepared an assignment to defendant of the plaintiff’s lease, which was signed by the latter.

Defendant took possession of the stock of goods and store on January 16, 1913, and retained possession until February 20, 1913, when he sold the stock to one Maxwell. By the terms of the bill of sale the plaintiff was to pay the rent to January 16th. The rent was $115 a month. In settling with the bank for the rent the plaintiff gave his cheek for $57.50, one-half month, and defendant turned it over to the bank, and settled the month’s rent. Defendant claims that Mr. Frost was the agent of both parties in drawing the papers. The bill of sale, and copy of plaintiff’s lease with the Home Savings Bank with the assignment thereon were left with Mr. Frost, and there was evidence that the latter, acting for the defendant, went to see the president of the bank with reference to obtaining the bank’s consent to an assignment of the lease, and that such consent was refused, unless the owners of the building would consent. The defendant was never disturbed in his possession of the store, and he paid the rent of the store up to the time of the sale to Maxwell.

Within a few days after the transaction of January 15, 1913, Mr. Frost discovered that there was a mistake in the description of the premises contained in the deed, and he immediately notified the defendant to come to his office, and he came very soon thereafter, and at that time Mr. Frost and defendant had some talk with reference to the lease, and the defendant then disclaimed anv agreement to take over the lease. Mr. Frost then advised him not to sign the deed correcting the mistake. Defendant himself testified that he learned about the provision concerning the lease and what was contained in the bill of sale within a day or two after January 15th, and that Frost advised him not to sign the deed then. After he learned of this bill of sale and the provisions contained in it, and on the 14th day of February, 1913, he executed a deed to correct the description contained in the deed of January 15th, and continued in possession of the. store until the 20th day of February, 1913, when he sold- the stock to Maxwell, who continued to occupy the store until about the 22d of May, when the key was returned to plaintiff. Subsequent to that date plaintiff was called upon by the bank to pay the rent, which he did, and this suit was brought to recover from the defendant for the rent so paid by plaintiff. If the plaintiff is entitled to recover, there is no dispute that the amount of the verdict is correct.

The testimony of the circumstances relating to the correction of the deed is uncontradicted, and is very significant. Upon that subject Mr. Frost testified as follows:

“Q. Now, Mr. Frost, I want to ask you about that deed and mortgage. You said something about the description in the deed; did you afterwards discover that there was an error in the description?
“A. Yes, I did, Mr. Jackson, as I remember it now. After the deed had left my possession I got to thinking about the description to myself, and I thought that can’t be right, there isn’t 160 acres, so I came up to the register of deeds’ office myself, and went and looked at the deed and found it wasn’t correct, and 1 at once notified Mr. Jaseph and Mr. Harlow both, I think, by telephone, that I had made a mistake in the description of the deed, and then I drafted another deed with the proper description, and telephoned Mr. Jaseph to come down, he and his wife, and sign the other deed.
“Q. How long was it after this deed was given before you made this discovery?
“A. Right off. * * *
“Q. How long after that was it before you got the deed from Mr. Jaseph — the corrected deed — signed?
“A. I know Mr. Jaseph came in very soon, I know for this reason, he came in and — do you want me to tell what took place?
“Q. Yes.
“A. I said, ‘Mr. Jaseph, there is a mistake in the description of the deed to Mr. Harlow,’ and I said, ‘Mr. Harlow looked the paper over when I read it, but it isn’t right,’ and I said, ‘I have drafted another deed which I want you and Mrs. Jaseph to execute to make it correct.’ Mr. Jaseph said, ‘All right,’ and then Mr. Jaseph spoke to me and he said, ‘What did you say about the assignment of some lease?’ And I said I had been down to see Mr. Barker of the Home Savings Bank and that he would not consent to the assignment of the lease, and Mr. Jaseph, using his language, said, ‘Oh h — 1, I didn’t never take that lease,’ then I said, being that is so, he shouldn’t sign that deed; I knew there was a mistake some place, and I wanted to do what I could to rectify it.
“Q. Was there anything further done about the lease?
“A. Not about the lease, Mr. Jackson.
“Q. Was there anything further done about the deed?
“A. Yes, later on Mr. and Mrs. Jaseph came up and executed the deed to Mr. Harlow.
“Q. Do you recall how long that was afterwards?
“A. I don’t, Mr. Jackson.
“Q. Well, now, I suppose the deed itself bears the date upon which it was executed?
“A. Oh, yes; I presume so.
“Q. With reference to the lease, you told Mr. Jaseph, did you, that Mr. Barker said he went to see the owners of the property—
“A. No, not that way, Mr. Jackson; I told him Mr. Barker told me that I would have to see the owners of the property.
“Q. Did you ever try to see the owners of the property?
“A. I did not.”

The defendant, after testifying on direct examination that he never , agreed to assume the lease, but that the next day he went back to Mr. Frost who said to him, “I can’t get that lease assigned over to you, I have been over to the Home Savings Bank,” and that defendant said in reply, “I don’t want it, and I never agreed to take it,” on cross-examination testified as follows:

“Q. When was the first time, then, that you learned that Mr. Harlow claimed that you had taken over this lease to the store?
“A. When I went down to see Mr. Frost the next day or so.
“Q. Within a day or two, anyhow?
“A. Yes, sir.
“Q. You then learned that Mr. Harlow claimed you had taken the lease to the store when you had purchased the stuff?
“A. Mr. Frost spoke about the lease; I said, ‘What lease ?’ He said, ‘Why, the lease of that store.’ I said, T don’t want the lease of that store. I didn’t agree to take any lease.’
“Q. Mr. Frost told you then that Mr. Harlow claimed you did and told you not to sign the deed then — the corrected deed?
“A. He said, ‘Let it rest until we get it settled.’
“Q. And you understood Mr. Harlow claimed that you had taken over the lease of the store when you bought the stuff?
“A. Yes, he claimed that.
“Q. You understood from Mr. Frost on that day— a day or two afterwards — later when you went back there to see Mr. Frost, when you and Mr. Frost had this conversation, that Mr. Harlow then claimed that you had taken the lease of the store with the goods?
“A. That is what he told Mr. Frost. It was something new to me.
“Q. But you understood that day that was what Mr. Harlow claimed?
“A. Yes, that is what Frost told me Harlow claimed. He told me Harlow ordered him to draw up a lease and bill of sale, and he done it, and tried to get it transferred to me and they wouldn’t do it. I said I never agreed to take the lease—
“Q. You learned that a day or two after the transaction was made?
“A. Yes, sir; I did.
“Q. And you have understood up to the present time that when you bought those goods you assumed the lease?
“A. I understood he has claimed I did, yes.
“Q. And you were in possession of the store at that time, were you not?
“A. Yes, sir.
“Q. At the time when you learned this of Mr. Frost?
“A. Yes. * * *
“Q. And you knew about this provision which was inserted in this bill of sale, you learned that from Mr. Frost a day or two after the original transaction, as I understand it; is that correct?
“A. Yes, sir.
“Q. And following that you gave another deed to Mr. Harlow, didn’t you?
“A. Yes, sir; we rectified the description in the other one.
“Q. To rectify the mistake that was made in the original transaction?
“A. Yes, sir. (The deeds were then shown witness, the first bearing date January 15th, and the second, or corrected deed, February 14th.)
“Q. Mr. Jaseph, I notice that nearly a month expired between the time that you gave this original deed and the time that this corrected deed was made from January 15th to February 14th. Let me ask you if during that time you didn’t state to Mr. Frost that you wouldn’t give Mr. Harlow a corrected deed unless he would release you from that clause in the bill of sale, or that in substance?
“A. No, sir; he advised me to wait.”

At the close of the plaintiff’s testimony defendant’s counsel moved for a directed verdict because it was out of the power of the plaintiff to transfer the lease without the consent of the owner of the premises, and that there was a failure of consideration. The court refused to direct a verdict for the defendant, adding:

“Under the proposition of the lease, if Mr. Harlow kept his lease, as the bill of sale is drawn, Mr. Jaseph would be obliged to take care of it. (To which ruling defendant’s counsel excepted.)”

The trial court instructed the jury that whatever the prior arrangement was as understood by the defendant, when on the 14th of February he corrected the deed, he acquiesced in and. affirmed the entire transaction of January 15th, to save harmless the plaintiff from the payment of rent under the lease between the plaintiff and the bank, and was estopped from denying his obligation under the bill of sale as written. A verdict and judgment were rendered for the plaintiff for the full amount of the claim, and the defendant has brought the case here upon writ of error.

Many errors are assigned which, in our view of the case, we do not think it necessary to discuss, for the reason that, if the trial court was right in its instruction to the jury, the plaintiff was entitled to recover, and the errors assigned on the several rulings of the court complained of, at most, would be harmless error.

It is the claim of the plaintiff that he was entitled to recover, and to have a verdict directed in his favor upon the undisputed testimony of the plaintiff and the testimony of defendant. It is urged by plaintiff’s counsel that, if defendant’s testimony is true in toto, then the most that can be claimed for it is that the minds of the parties never met upon an exchange of their properties; for there is no mistaking the fact that, under the evidence in the case, the plaintiff never intended to exchange his stock of goods for this farm except upon the terms contained in the bill of sale; and, assuming defendant’s testimony to be true, he never intended to assume the plaintiff’s liability under the lease. In such an event there was no meeting of the minds; but according to the testimony of Mr. Frost, which is uncontradicted, he discovered a mistake in the description contained in the deed given by the defendant, and immediately notified the defendant, who came to his office within a day or two after the transaction of January 15th, where the defendant learned of the provision contained in the bill of sale executed by the plaintiff, and thereafter, without attempting to rescind the transaction but with full knowledge of the plaintiff’s contention concerning the lease and the provision contained in the bill of sale, and a month after this original transaction, executed a deed correcting the description. He thereby confirmed the transaction; and within a few days thereafter, and on the 20th day of February, he sold this stock of goods to one Maxwell, thereby putting it beyond his power to rescind the transaction. In other words, it is claimed by the plaintiff that under these conceded circumstances the defendant ratified the original transaction as claimed by plaintiff, and therefore the plaintiff is entitled to recover. We think there is much force in this .claim. In support of this position plaintiff cites the following cases:

Estey Organ Co. v. Lehman, 132 Wis. 144 (111 N. W. 1907, 11 L. R. A. [N. S.] 254, and note, 122 Am. St. Rep. 951), holding that the purchaser of a chattel who, without any agreement between the parties as to the price, receives it from the carrier and retains it, with knowledge of the price demanded by the seller which was a reasonable one, will be bound to pay that price, although, before receiving the property, he contended that the price to be paid was a less amount, Cunningham v. Rotograph Co., 30 App. D. C. 524 (15 L. R. A. [N. S.] 368, 13 Am. & Eng. Ann. Cas. 1147).

If the writing of the clause complained of by the defendant, in the bill of sale, was the unauthorized act of Mr. Frost, the agent of defendant, the latter certainly could ratify that act. The entire' contract concerning the trade was an indivisible one, and when defendant voluntarily corrected the deed and, instead of rescinding the trade, held the goods, knowing at the time that plaintiff claimed that the defendant assumed the lease and was to save the plaintiff harmless from the covenants thereof, we think it should be held that defendant ratified the terms of the sale as they were written.

In Busch v. Wilcox, 82 Mich. 315 (46 N. W. 940), this court held that when a person adopts the unauthorized acts of another in his behalf, and has received and holds the benefits accruing therefrom, he adopts and ratifies the instrumentalities by which the fruits were obtained. See, also, Sokup v. Letellier, 123 Mich. 640 (82 N. W. 523); Schmid v. Village of Frankfort, 141 Mich. 291 (104 N. W. 668).

There is another view of the case which is equally binding upon the defendant. When the plaintiff learned that defendant claimed that he never agreed to take over the lease, and save the plaintiff harmless from the covenants thereof, he might well have said:

“As the minds of the parties have not met, I will rescind the entire contract.”

By the conduct of the defendant in correcting the mistake in the deed, and within five days thereafter selling and delivering the stock of goods to Maxwell, he put it out of his power to place the plaintiff in statu quo had the latter desired to rescind the sale.

We think there is much force in the position of the circuit judge that the defendant was estopped by his conduct from claiming that he did not ratify the entire transaction. It is true the rule is well settled that no estoppel is created when the situation of the party in whose favor the estoppel is claimed to operate is no different from what it otherwise would have been. But here it seems to us that the situation of the plaintiff was changed, as we have above indicated, by the conduct of the defendant. If defendant’s claim that he never agreed to take and assume the lease is true, it would have been a good defense to a bill filed by plaintiff to correct the description in the deed and reform that instrument; for if the general equities of the whole transaction were against complainant he could not have reformation. 34 Cyc. p. 945; Redding v. Rozell, 59 Mich. 476 (26 N. W. 677).

By his volúntary correction of the description it may be said that defendant impliedly waived his right to claim that the entire contract as asserted by the plaintiff was not correct.

While these questions are generally held to be mixed questions of law and fact, yet, when but one inference can be drawn from the conceded facts, it is not error for the court to charge the jury as to the legal effect of such acts.

We are of opinion that, under the conceded facts as we have reviewed them, the plaintiff was entitled to -recover in this action, in any view which we are able to take of the case.

The judgment of the circuit court is therefore affirmed.

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


author: STONE, J.

text:
    JACOBS v. QUEEN INSURANCE CO.
    1. Insurance — Fraud—Partnership—Members of Firm.
    In -writing a policy of fire insurance, the insurer has the right to know who compose a copartnership which claims to he the owner of the insured property. The utmost good faith is required of the insured in answering inquiries concerning the ownership of the goods. The moral hazard involved in the contract is one of the essential elements of the risk and under a policy stipulating that it should be void if the insured concealed or misrepresented any material fact or circumstance, such as the name of one of the copartners, the concealment of the name of one of the members of the firm amounted to fraud and avoided the policy.
    2. Same — Principal and Agent — Notice.
    One who has power to solicit insurance, receive applications, fix premiums and .accept risks, issue, countersign and renew policies of insurance, is such a general agent that his knowledge of facts concerning the membership of an insured firm will be imputed to his employer or principal.
    3. Same — Waiver of Defenses — Notice.
    From evidence which failed to establish the essential fact that defendant’s local agents at the time of filing its plea and notice had knowledge that plaintiff firm or copartnership had a member who was not named in the application for insurance, no waiver of the defense that plaintiffs misrepresented the facts concerning their members could be held established, as matter of law, although in the proofs of loss the name of a third partner was stated: the fact might have been consistent with a change of firm subsequent to the issuance of the insurance.
    4. Same — Evidence—Similar Transactions — Fraud.
    It was competent on the trial to show that plaintiffs had made representations of a like nature relative to the membership of the firm to other persons about the same time that the policy was applied for, to show the intent and nature of such misrepresentations.
    5. Same — Estoppel—Knowledge.
    Knowledge of all the material circumstances is essential to waiver or estoppel arising from the attempt to advise the policy holder of defendant’s reasons for refusing payment, or from the filing of a notice of the specific defenses in one action that later was discontinued by plaintiffs who thereupon instituted a secofid suit upon the policy.
    6. Same.
    The disputed claim of defendant that false representations were made ought to have been submitted to the jury, together with special interrogatories upon the issues of notice and fraud, to wit: (1) whether defendant’s agents knew that there was a third member of the firm; (2) whether any of the firm advised defendant of the true state of facts; and (3) who were declared by plaintiffs at the time of issuing the policy to be members of the copartnership.
    Error to Wayne; Mandell, J.
    Submitted October 15, 1914.
    (Docket No. 28.)
    Decided December 19, 1914.
    Rehearing denied April 28, 1915.
    Assumpsit by Charles L. Jacobs and another against the Queen Insurance Company of America on a policy of fire insurance. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Stevenson, Carpenter, Butzel & Backus (/. W. Mooney, R. M. Edmonds, and Thomas G. Long, of counsel), for appellant.

      Selling & Brand, for appellees.
   STONE, J.

This action is based upon a policy of fire insurance issued on December 3, 1910, by the defendant and appellant, to D. Littman & Co., assignors of the plaintiffs and appellees, covering an amount not exceeding $2,250 upon a stock of merchandise, and not exceeding $50 upon store furniture and fixtures, contained in a two-story frame building located in the village of Woodville, Sandusky county, Ohio, for the term of one year from the date of policy. The policy in suit was procured by D. Littman & Co., and issu'ed to said firm in the State of Ohio, and was countersigned by the agents of defendant at Woodville, aforesaid, a village of about 1,000 population about 18 miles from Toledo. The insured at the time was a co-partnership doing business in the State of Ohio, and the property at the time of the issuing and delivery of the policy, and at the time of the fire hereinafter referred to, was located in the State of Ohio. The insured partnership consisted of Harry Friedenberg, Ben Levine, a stepbrother, and David Littman, a brother-in-law. The policy in suit was one of six policies procured from different insurance companies through the same agency, at the same time, making a total of $12,000 on the stock and $200 on the furniture and fixtures; and, while written on December 3d, the policies were not delivered until December 10, 1910,- and the fire occurred and the insured property was totally destroyed on December 15, 1910, at 1:40 o'clock a. m. The insured claimed to have carried a stock of upwards of $15,000 in value. They attempted to procure $14,000 of insurance upon the stock, but the agents of the insurance companies declined to write for more than $12,000 thereon. The policies carried an 80 per cent, coinsurance and reduced rate average clause.

The partners Friedenberg and Levine had been engaged in business in Detroit. About 1907 Friedenberg engaged in an extract manufacturing business in Detroit, which he claims to have purchased from his cousin, Morris Harris, and which he ran for a few months when the same was burned. He collected the insurance on the stock and paid the amount to Harris on his indebtedness for purchase price. After the said fire, Friedenberg peddled pictures for some months, then bought a dry goods store on Dubois street, in Detroit, for which he paid, or agreed to pay $600 or $700. He ran this business for a few months, and then formed a partnership with Littman and moved to MeDougall avenue. This business continued until the insured partnership was formed in the fall of 1910. Littman resided in Chicago, and continued to reside there. Immediately before Levine became a member of the insured firm he had been employed at the Globe Dry Goods Store in Hamtramck. There was a fire there in which the stock was damaged. He claims to have purchased this stock. Immediately after the insured partnership was formed Friedenberg went to Woodville, Ohio, to look up a location for business. He rented a store, executing a writtén lease. Neither the owner of the store nor the notary who took the acknowledgment of the lease was informed that his name was Friedenberg. He signed the lease in the name of Littman. At the time of such signing Friedenberg inquired of the owner of the store whether he could get insurance on the stock, and he was taken to the insurance agents, who later wrote the insurance. The insured firm took the Detroit stocks, the value of which is in dispute, to Woodville, and some new stock was added. The store was then opened for business about November 15, 1910. Upon inquiry by one of the insurance agents before the issuance of the policies, as to who composed the firm of D. Littman & Co. there was evidence that Friedenberg expressly disclaimed having any interest in the firm himself, and Levine stated to the agent that Littman and Levine, those two, were all there were in the firm. Upon this subject the agent testified as follows:

“When the insurance was written, the one that came to see about the insurance disclaimed having any interest in the firm.
“Q. What is that?
“A. The one that came to see about the insurance in the first place, the morning that the insurance was written, I went to the store to get the name, and see how the firm wrote their name whether ‘D’Littman,’ or whether it was ‘De Littman,’ or whether the ‘D’ stood for the initial, and to make it plain I said—
“Q. Who did you speak to?
“A. Mr. Levine. I wanted to get the name to know how to write it up, and the one that came to see about the insurance first came, as Mr. Levine was busy at that time and I told him what I wanted, and he said, T have nothing to do with it; that other fellow does,’ and so then I said, ‘All right, you can tell him,’ and I went down to the other store, and when I came back they were standing talking, and Mr. Levine said he didn’t know what I wanted him to write that down for, and I said I did not understand how they wrote it, and I wanted it written down the way it was, whether it was ‘D’Littman.’ I asked him whether the ‘D’ stood for David Littman, and he lived in Chicago, and I said, ‘Who is the company?’ and he said he was.
“Q. How about the other gentleman, did he say he was a member of the firm?
“A. No, he did not say he was not a member, but he said that was all there was, those two all'there was in the firm.
. “Q. Did he say the other gentleman was not a member?
“A. He did not say he was not a member, but he said those two were all.
“Q. Which two?
“A. Littman and Levine.”

Further evidence tended to show that, prior to the issuance of the policies, Ben Levine, in response to inquiry of C. C. Layman, one of the agents, as to the exact names of the members of D. Littman & Co., gave to such agent one or more slips of paper in the handwriting of Ben Levine, one containing the name of “D. Littman” only, and the other “D. Littman & Co.,” and immediately underneath the name of “B. Levine.” Further, there was testimony that, on November 7, 1910, Ben Levine, on behalf of the copartnership of D. Littman & Co., made, signed, and rendered a financial statement to R. H. Lane & Co., of Toledo, Ohio, which contained the following statement:

“Firm of D. Littman & Co. is composed of the following persons: D. Littman, B. Levine.”

And on the same date, B. Levine, on behalf of D. Littman & Co., made, signed, and rendered a financial statement to the firm of Baumgartner & Co., of Toledo, Ohio, in which again the names of the members of the firm of D. Littman & Co. were given as D. Littman and B. Levine. On the same , date, in response to the inquiry of A. A. Hall, credit man for Baumgartner & Co., of Toledo, as to who composed the firm of D. Littman & Co., Ben Levine replied, orally, that the firm of D. Littman & Co. was composed of D. Littman and B. Levine. Much of this testimony was denied by the assured. On December 19, 1910, the policy in suit, and two others, were assigned by D. Littman & Co. to the plaintiffs, for the purpose of securing a pre-existing indebtedness of $526, due the plaintiffs from the assured, and to pay some other debts of D. Littman & Co., which were to be paid by the plaintiffs from the proceeds of said policies, the balance, if any, to be returned to D. Littman & Co. On January 14, 1911, original proofs of loss were made by the insured. Attached to the plea of the general issue, defendant gave notice, among other things, that said policy of insurance contained the following provisions:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”

We copy further from the notice the following:

“That prior to the issuance of said policy of insurance, and with the purpose and intent of inducing the defendant to issue said policy of insurance, one Ben Levine falsely and fraudulently stated and represented to the agent of this defendant that the said D. Littman & Co. was a copartnership, and was composed of one D. Littman and said Ben Levine, and no others; whereas, in truth and fact, as said Ben Levine well knew when he made said false and fraudulent statement, said copartnership was not composed of said D. Littman and said Ben Levine and no others; but, on the contrary, said copartnership was composed of said D. Littman, said Ben Levine and one H. Friedenberg; that said false and fraudulent statement was made by said Ben Levine with the purpose and intent of thereby defrauding this defendant; that this defendant relied on said false and fraudulent representation, and in reliance thereon issued said policy of insurance; that but for said false and fraudulent representation and its reliance thereon, it would not have issued said policy of insurance.”

The trial court refused to submit to the jury the question raised by the evidence under the foregoing paragraph of the notice, as to whether false representations were made to the agent of this defendant company for the purpose of inducing this defendant to issue the policy in suit, but directed the jury to return a verdict for the plaintiffs, leaving to the jury only the question of damages. The trial court also refused to submit to the jury the following special questions requested by the defendant:

(1) Did the agents of the defendant insurance company know when the policy sued upon was issued that H. Friedenberg was a member of the firm of D. Littman & Co.?

(2) Did any member of the firm of D. Littman & Co. inform the agent of the defendant insurance company, before the policy sued upon was issued, that H. Friedenberg was one of the partners in that firm?

(3) Was it represented by any member of the firm of D. Littman & Co. to the agent of the defendant insurance company, at the time the policy sued upon was applied for, that the firm consisted of D. Littman and Ben Levine only?

The trial resulted in a verdict and judgment for the plaintiffs in the sum of $2,300 damages, and costs. There was a motion for a new trial upon the grounds of newly discovered evidence that the insured did not have the amount of goods or property which they represented they had, that the insured swore falsely in the proofs of loss as to the value of the goods destroyed, and as to the origin of the fire, and that Harry Friedenberg, one of the members of the insured firm, had admitted, both orally and in writing, that he wilfully set the fire which caused the loss in question.

The case is here upon writ of error, and by the assignments of error it is the contention of appellant, among other things, that the court erred in directing the jury to return a verdict for the plaintiffs, in denying the motion for a new trial made upon the ground of newly discovered evidence, in refusing to submit to the jury the question of false representations and concealment as to Friedenberg’s membership in the insured firm, and in refusing to submit to the jury the special questions above set forth.

Other questions were raised, both in the pleadings and the evidence, which we do not deem it necessary to specially allude to, which were presented by a motion for a directed verdict for the defendant made at the conclusion of the proofs. We are not prepared to say that, upon those questions, the court should have directed a verdict in favor of the defendant, and no error is assigned upon the refusal of the court to submit them to the jury.

It is the claim of the appellant that the contract of insurance is one requiring the utmost good faith, inasmuch as knowledge of the facts of ownership and value of the property is knowledge possessed exclusively by the insured, and the insurer must, of necessity, rely upon the truth of the representations made by the insured upon these matters. Therefore it is fundamental that the making of a material false representation by the insured for the purpose of inducing the issuance of the policy renders the policy void, and constitutes a complete bar to any recovery thereon.

It is further claimed that it is important to note the fact that Friedenberg was the only member of the firm who was known to have had previous connection with a fire loss, to wit, in the extract factory.

It is also urged that a representation as to the members who composed an insured copartnership owning the property is a representation of a material fact, and the following cases are cited: Abbott v. Insurance Co., 85 Mass. (3 Allen) 213; Pelican Ins. Co. v. Smith, 92 Ala. 428 (9 South. 327), affirmed in 107 Ala. 313 (18 South. 105).

In the last-cited case the court said:

“An insurance company has the right to know the real owner of the property insured and the extent of his insurable interest, and a contract of insurance is one in which the utmost good faith is required of the insured. A representation has been defined to be a statement incidental to the contract relative to some fact having reference thereto, and upon the faith of which the contract is entered into. 4 Wait, Act. & Def., page 39; May on Ins., § 181.”
“Where the policy, by express stipulation, requires a full statement as to the ownership of the property, it becomes material, and one who accepts such a policy, issued upon such statements, becomes bound thereby. Brown v. Insurance Co., 86 Ala. 189 (5 South. 500); Western Assurance Co. v. Stoddard, 88 Ala. 606 (7 South. 379).”

See, also, Capital City Ins. Co. v. Autrey, 105 Ala. 269 (17 South. 326, 53 Am. Rep. 121).

We have no doubt that the insurer has the right to know who composes the partnership owning the property which is to be insured. The moral hazard involved in the contract is one of the essential elements of the risk, and the materiality to the insurer of the personnel of the insured copartnership, especially when inquiry is made with reference to such membership, becomes apparent. A leading case upon this subject is Graham v. Insurance Co., 87 N. Y. 69 (41 Am. Rep. 349). We quote from the syllabus of that case:

“Where a policy of fire insurance contained a clause declaring it to be void, 'in case of any misrepresentation whatever, either in the written application or otherwise,’ a misrepresentation will avoid the policy, and this, without regard to the question as to its materiality to the risk.”

Defendant in that case issued to the plaintiff two policies of insurance. At the time of the application for the first policy, plaintiff’s agent, who made the application, stated in answer to an inquiry as to ownership that “Mrs. Catherine E. Jack, widow of Capt. Jack,” was the owner, and was going to keep a first-class hotel on the premises, and the policy was made out insuring Catherine E. Jack, loss, if any, payable to plaintiff, as mortgagee. When application was made for the second policy, the agent stated there was a mistake in giving the name, that it should be Margaret instead of Catherine in the first policy, which was altered accordingly, but he repeated the statement that the owner was the widow of Capt. Jack. The title to the property was in Margaret E. Jack, an infant three years of age, who had no general guardian. The policies contained the condition above stated. Held, that the misrepresentation was material, and -that it was not error for the court to refuse to submit that question to the jury. In its opinion the court said:

“Even if it be assumed that the materiality of the misrepresentation actually made is important, we think it is sufficiently established that the statement made as to the ownership of the property was material, and that the representation, if untrue, was such a violation of the terms of the' policy as rendered it void. A distinct inquiry was made at the time as to the ownership of the property, of the plaintiff’s agent, and a direct and positive answer given. * * * The representations were also believed by the defendant’s agent, and upon the faith of them the policies were issued. The inquiry made evinces that it was material, and it is evident that it was important to the underwriter to know the person who owned the property, and who was to keep the hotel and conduct the business; whether it was one well known or otherwise — an adult who would be likely to exercise proper care over the same, or an infant who would be unable to do so, and who, as the evidence shows in this case, had no general guardian to protect her rights. The insurer has a right to know to what extent the insured has the ability to protect, or an interest in protecting, against the perils insured against. Savage v. Insurance Co., 52 N. Y. 502, 504 [11 Am. Rep. 741]. And in a case like this, when a specific inquiry is made, the question of the materiality of the statement in respect to the risk is settled by the parties as a matter of contract. A broad distinction exists whether the statement is made in answer to inquiries or otherwise. In the one case the answers are made material by the act of the assured, whether they are in fact or not; while in the other case, even though the statements are made a part of the policy, they are not efficacious as warranties, although material in fact. (Wood on Fire Ins. 422, §214.) This is especially the case when the inquiry calls upon the party to communicate the nature of his interest in the property, and he is bound to answer accurately and at his peril” (citing cases).

Many more cases might be cited to the same effect. 19 Cyc. p. 679:'

“The insured may, by failing to disclose facts material to the risk to be assumed under the policy, and which he has reason to believe are not within the knowledge of the company, be guilty of such fraud as to defeat the contract.”

If the insured undertakes to state fully all of the circumstances which affect the risk, he is bound to tell the whole truth, and concealment will render the policy void. 19 Cyc. p. 681, and cases cited.

The contract of fire insurance is in its nature personal, being presumed to rest to some extent on the trust and confidence of the insurer in the insured that the property will not be destroyed by the insured for the purpose of realizing on the contract. Hence the importance of answering truthfully all questions relating to ownership.

Counsel for plaintiffs and appellees, not specially controverting the position that such claimed representations and concealments would be material, say:

“Assuming, which is contrary to the fact, that the Laymans [insurer’s agents] did not know that Friedenberg was a member of the firm, and that fact was concealed from them, there is absolutely nothing in the record to justify even a suspicion that the policy would not have been issued had Mr. Friedenberg’s name been mentioned. However, a complete answer to all of counsel’s argument is that if there had been any misrepresentations which would have justified the voiding of the policy, the insurance company was bound to notify the insured and Jacobs & Friedman immediately upon the discovery of this alleged false representation that they considered the policy void. The defendant had no right to put the insured and their assignees to the enormous expense to which they were put prior to the filing of the plea in this case, and which for the first time pleaded this alleged defense. The proofs of loss filed January 15, 1911, with each of the companies distinctly stated that the firm of Da Littman & Co. consisted of David Littman, Ben Levine and Harry Friedenberg. The connection of Mr. Friedenberg with D. Littman & Co. was known to the insurance companies the moment they received these proofs of loss. At that time their agents, Mr. and Mrs. Layman, knew whether, or not there had been any false representations made to them before the policies were issued. * * * When the first suit was brought, although the defendant put in a large number of defenses, it made no claim that the policy had been obtained by misrepresentation or fraud. It was not until more than a year after the fire had occurred, and after the insured and Jacobs & Friedman had been put to an enormous expense in the way of traveling back and forth from Chicago and Detroit to Woodville, employing attorneys, and the expense of two suits on each policy, that the defendant made this defense, and did not even tender back the premiums. New York Life Ins. Co. v. Baker, 83 Fed. 647, 27 C. C. A. 658. It is an elementary proposition that, where an insurance company, with full knowledge of the facts afterwards relied upon in support of its claim that a policy was void ab initio, bases its refusal to pay the loss upon other grounds accruing subsequent to the fire, after which the insured is subjected to loss of time in trying to adjust the,loss and incurs the expense of bringing suit for its recovery, the company is estopped from asserting such claim, of forfeiture as’ a defense in said suit” (citing Marthinson v. Insurance Co., 64 Mich. 372 (31 N. W. 291), and many other cases).

It should be here stated that suit had first been begun upon this policy on June 27, 1911, and the plea and notice thereunder, in that suit, did not raise the question of false representation and concealment which we have above set forth, but notice was given of certain other alleged defenses. That suit was discontinued December 9, 1911, and this one begun December 13, 1911. We think a number of answers may be given to the objection urged by appellees as to the availability of the defense we are here considering.

It is undoubtedly true that the general local agent —that is, one who has power to solicit insurance, to receive applications, to fix premiums, to accept risks, and to issue, countersign, and renew policies in a particular locality — is such an agent that his knowledge will be imputed to the insurer. The record in this case is not very clear as to the extent of the power of the agents of the companies at Woodville. It does appear, as above noted, that while the policies were dated on the 3d day of December, they were not delivered until the 10th day of December, and that in the meantime reports had been made to the several companies. There is no evidence that the agents reported, or were required to report, to the companies the individual names of the insured partnership. While the proofs of loss did show that the firm, at that time, was composed of David Littman, Ben Levine, and Harry Friedenberg, it did not necessarily follow that Friedenberg was a member of the firm at the time the policy in question was issued. He might have been introduced into the firm at a later date for aught that appears in this record. There is no evidence that either the defendant, or its agents, at the time of entering the plea in the first suit, had full knowledge of the facts of which notice is given in the instant case, and we do not think that this can be presumed. There is nothing to show that either the defendant, or its agents, had any knowledge, at the time the first plea was interposed, as to the similar representations which it is claimed were made to the merchants in the city of Toledo. As showing the quo animo and nature of the representations made to the agent, it was competent to show other similar representations made at or about the same time to other persons. Beebe v. Knapp, 28 Mich. 53.

The language of Chief Justice Campbell in Security Ins. Co. v. Fay, 22 Mich. 467-473 (7 Am. Rep. 670), is pertinent here:

“The waiver that is spoken of in these cases is another term for an estoppel. It can never arise by implication alone, except from some conduct which induces action in reliance upon it, to an extent that renders it a fraud to recede from what the party has been induced to expect.”

We think the rule is well stated in Smith v. Insurance Co., 107 Mich. 270 (65 N. W. 236, 30 L. R. A. 368), where this court held that where an insurance company, with knowledge of all the circumstances attending a loss, undertakes to notify the insured of its specific reasons for denying the liability, it cannot, when sued upon the policy, set up any additional grounds for defense.

In the light of this record, we cannot say that the defendant is estopped from interposing the defense claimed in the instant case. There being a sharp conflict in the evidence as to whether the representations were made and the concealment practiced, as claimed by the defendant in its notice and evidence, we think it was the clear duty of the trial court to submit that question to- the jury, together with the special interrogatories above set forth, and that it was prejudicial error to refuse so to do. Clearly, as to whether these representations were made or not was one of fact. The effect of the representations may have been a question of law. Upon that subject there is a diversity of opinion; some respectable courts holding that even the question bf the materiality of the representations is one of fact to be submitted to the jury. There is authority to the effect that whether a material fact was intentionally or fraudulently concealed is a question for the jury. Johnson v. Insurance Co., 93 Wis. 223 (67 N. W. 416).

It is very clear that the question whether the representations were made or not is one of fact. This view of the case renders it unnecessary for us to pass upon the question of the refusal of the court to grant a new trial upon the grounds stated in the motion therefor. As a new trial must be had, the questions involved in that motion may never arise, and it is unnecessary for us to discuss them.

For the error pointed out, the judgment of the court below is reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Ostrander, Moore, and Steere, JJ., concurred. Bird and Kuhn, JJ., concurred in the result.


text:
    WALSH v. BACKUS.
    1. Wills — Life Interest — Widow’s Estate in Personalty.
    Decedent directed by his will that the widow should have the use of real and personal property in his estate during her lifetime, with “full power to sell, convey or exchange any or all of said property, real or personal, and without any restrictions whatever as to the amount of said personal property she shall use for her support and benefit, should she need the same, owing to sickness or other emergency which would require the use of more than the income.” The testament provided for the division of his real estate after the death of the widow. It was provided that after her death and the payment of her funeral expenses and certain bequests, complainant, executrix and daughter, should have the residue of the estate. Testimony was offered to show that the widow had admitted the estate was entitled to $2,000 in certificates of deposit in her hands in the name of the estate. Held, in a suit for the construction of the instrument and to determine whether funds accumulated by her and deposited in bank evidenced by such certificates of deposit in her possession at the death of said widow belonged to the husband’s estate, that the evidence sustained the decree of the lower court in determining that the $2,000 in certificates of deposit belonged to the husband’s estate 'and should be accounted for, that the decree was wrong, however, in so far as it attempted to charge her estate with a larger amount. Held, also, that the testimony-failed to support defendant’s claim that the widow did not collect certain notes due to the estate.
    2. Same — Bequests—Construction.
    At most the provisions of the will conferred upon the widow the use of the personal property with the right to part of the principal, if necessary. The right to the use and custody of the property is to be inferred from this testamentary clause.
    3. Same — Evidence—Hearsay—Self-Serving Statements.
    A statement in writing by the widow to her attorney, not made in complainant’s presence, showing her claims as to property owned respectively by her and received from the estate, was inadmissible and hearsay: it could not be considered in support of the claim made by her administrator.
    4. Same.

      Held, that’ the testimony established the fact that the widow of testator made a will cutting off complainant with a nominal amount, but that she later destroyed it.
    5. Same — Devise—Descent.
    Under a clause in the will bequeathing to the daughter of complainant upon the decease of testator’s widow “all property of every nature and description which shall remain after the payment of the bequests from the sale of the farm and city property hereinbefore mentioned,” it could not be urged that only the sums which remained out- of the proceeds of such sales should belong to the daughter, and that she should share with the other heirs in the residue of the body of the estate.
    6. Same — Expenses of Sickness.
    Not only was the estate chargeable with the expenses of the widow’s funeral, but it should also be charged with the expenses of her last sickness.
    Appeal from Eaton; Smith, J.
    Submitted October 12, 1914.
    (Docket No. 68.)
    Decided December 19, 1914.

      Bill by Alice Walsh, executrix of the estate of Christopher Glenn, deceased, against Dwight Backus, administrator of the estate of Sarah Glenn, deceased, and the Loan & Deposit Bank of Grand Ledge. From a decree for complainant, defendant Backus, administrator, appeals.
    Modified and affirmed.

      Elmer N. Peters (Raymond A. Latting, of counsel) , for complainant.

      Jason E. Nichols (/. M. C. Smith, of counsel), for defendant.
   Stone, J.

The bill of complaint in this cause was filed to obtain a construction of the last will and testament of Christopher Glenn, deceased, and for an accounting, Christopher Glenn died in February or March, 1901, the exact date not being shown by the record. He left a will dated February 7, 1901, which was duly admitted to probate. That part of the will relevant to this controversy, is as follows:

“After the payment of my funeral expenses, expenses of last sickness, if any, and any lawful debts which I may have contracted, I give and bequeath to my beloved wife, Sarah Glenn, all property, real and personal and mixed, of which I may die seized or possessed, she to have, hold, use and enjoy the same for and during the term of her natural life, with full power to sell, convey or exchange any or all of said property, real or personal, and without any restrictions whatever as to the amount of said personal property she shall use for her support and benefit should she need the same owing to sickness or other emergency which would require the use of more than the income from said real and personal property.
“After the death of my beloved wife, I direct that the farm or one hundred acres owned by me in the township of Oneida, Eaton county, Michigan, be sold, provided the same has not been sold before that date by my said wife, and the proceeds from the sale of said farm to be divided as follows, when sold: Two-thirds of the proceeds from said sale I give, grant and bequeath to my daughter, Alice Walsh, and the remaining one-third of said proceeds I give, grant and bequeath to Christopher Glenn, Jr., Ellen Teaman, Sarah Trumbull and Mary ■ McMullen, to be divided between them, share and share alike.
“After the death of my beloved wife I direct that the property_ owned by me in the city of Grand Ledge, where I reside, be sold, provided the same has not been sold before that date by my wife and the proceeds from the sale of said city property when sold be divided equally between William T. Glenn and Alice Walsh, share and share alike.
“After the death of my beloved wife and the payment of her funeral expenses, I give, grant and bequeath to my daughter, Alice Walsh, all property of every nature and description which shall then remain after the payment of the bequests from the sale of the farm and city property hereinbefore mentioned.
“I hereby nominate my daughter, Alice Walsh, as executrix and John Strange as executor of this my last will and testament, with full power and authority to sell and convey any real estate of which I may die seized under the direction and with the consent of my wife, for the purposes of division herein stated.”

Complainant is the daughter, and also the executrix of the will, of said Christopher Glenn, deceased. The defendant Backus is the administrator of the estate of Sarah Glenn, deceased, who was the mqther of complainant, and the wife of Christopher Glenn, deceased. The real estate owned by Christopher Glenn at the time of his death is not involved in.this suit, all of it having been sold and the proceeds divided between the beneficiaries named in his will, by mutual agreement between them.

It is the claim of the complainant that by the terms of the will of Christopher Glenn, his wife, Sarah, had the right to the possession, use, and control during her life of the personal property belonging to his estate, and to have the same turned over to her by the complainant; that, when complainant did turn all of this property over to Sarah Glenn, the latter did not become the absolute owner of it, but whatever remained after her death belonged to the estate of Christopher Glenn, deceased, and complainant, as such executrix, has the right to reduce the same to her possession, to the end that she may close the estate of Christopher Glenn, deceased. Acting in accordance with this view, the complainant, upon the probate of said will, proceeded to inventory the estate, totaling $8,823.67, of which $5,700 was real estate. She presented her account to the probate court, which was duly allowed, and on November 15, 1901, the property, real and personal, was turned over to her mother, Sarah Glenn, less the sum of $794.90, which had been allowed to complainant • as paid in settlement of claims against the estate, and expenses of administration. At the same time Sarah Glenn receipted to complainant for personal property, including cash, notes, and a real estate mortgage, amounting to $2,328.77, which receipt was in the following words and figures:

“Grand Ledge, November 15, 1901.
“Received of Alice Walsh, executrix of the last will and testament of Christopher Glenn, deceased, the sum of three hundred and fifty-eight dollars and seventy-seven cents in cash, and the following personal property, to wit: Notes of Thomas A. and Louisa Walsh, aggregating face value eight hundred fifty dollars; a real estate mortgage of eight hundred dollars given by Charles G. Allen; notes of J. G. Smith, aggregating one hundred twenty dollars, face value; a note of Christian F. Maier for two hundred dollars —being all the personal property of every nature and description belonging to the estate of Christopher Glenn, deceased.
“[Signed] Sarah Glenn” (by her mark).
“Witness to mark:
“W. R. Clarke,
“R. A. Latting.”

It is not seriously contended that Sarah Glenn had anything more than a life estate or interest in the personal property left by Christopher Glenn, deceased. By the will it was clearly intended to give her at most the use of the personal property during her life, and there was present the intent and expectation that she might use some of the principal, if necessary. This implied custody and the right to use. Gee v. Hasbrouck, 128 Mich. 509-513 (87 N. W. 621); Michigan Trust Co. v. Hertzig, 133 Mich. 513 (95 N. W. 531).

It is the claim of complainant that from November 15, 1901, until her death, on February 15, 1911, Sarah Glenn had all of the personal property of the estate of Christopher Glenn in her possession, and managed and controlled it, and that she had also the income from the real estate until it was finally sold and the proceeds divided among the persons to whom it was devised by the said will. She also drew a pension of $144 a year from the United States.

Previous to the 15th day of November, 1901, Sarah Glenn had on deposit in the bank of the Loan & Deposit Bank of Grand Ledge the sum of $940. From' that time on her deposits increased, so that at the time of her death she had certificates of deposit issued by this bank amounting to $4,200. Twenty-two hundred dollars of this amount was represented by certificates in her own name, and $2,000 in two separate certificates, numbered respectively -45,536 and 45,537, of $1,000 each, dated January 2, 1911, in the name of Christopher Glenn estate. The undisputed testimony of the cashier of the bank was that, at the time Sarah Glenn took the $2,000 in certificates in the name of the estate, she stated to him that there was at least that much money belonging to the Christopher Glenn estate in her hands. Before that time the money had been in the bank in her name, and she changed the certificates as above indicated.

The claim of the defendant Backus is that Sarah Glenn could not read or write, signing her name by her mark. While this is true, yet the undisputed evidence is that she was an intelligent, thrifty, and economical woman, and understood her business affairs. It is further claimed by said defendant:

First. That the greater portion of the personal property turned over to her on November 15, 1901, by complainant, and especially the notes of Thomas A. Walsh and Louisa Walsh, amounting to $850, were delivered to complainant by Sarah Glenn soon after they were receipted for, and that Sarah Glenn never had any of the money paid by Thomas A. Walsh.

Second. That the Smith note of $100 and $215 out of the Allen mortgage had already been turned over to complainant.

Third. That the said Sarah Glenn was unduly and fraudulently induced to change the two certificates, of $1,000 each, just before her death, into the name of “C. Glenn Estate,” and that the money represented by the certificates was the money of Sarah Glenn, and not the money of the C. Glenn estate.

Fourth. That in March, 1907, Sarah Glenn, realizing the efforts being made by complainant to get her money away from her half-brothers and half-sisters, went to an attorney and made a property statement, and a will in which she cut off complainant with $1.

Fifth. That the paragraph in the said will reading:

“After the death of my beloved wife, and the payment of her funeral expenses, I give, grant and bequeath to my daughter Alice Walsh, all property of every nature and description which shall remain after the- payment of the bequests from the sale of the farm and city property hereinbefore mentioned”—

should be interpreted to mean, solely, the proceeds from the sale of the farm and city property in Grand Ledge, and that complainant should stand as one of six heirs in the distribution of what was left by Sarah Glenn.

Sixth. That, as the estate of Christopher Glenn is not closed, said estate should not only be charged with the funeral expenses of $236, but should also be charged with the last sickness account of Sarah Glenn.

We will consider the several questions in the order presented.

1. After a careful reading of the record, we cannot agree with the claim of counsel here made. The evidence offered in support of the claim is so indefinite and unsatisfactory that we cannot be governed by it. Of the statement of Sarah Glenn we shall speak later.

2. Counsel for defendant concedes that as to this proposition it finds support only in the statement of Sarah Glenn, made to the attorney who drew her will. That this unsigned statement was self-serving in its character cannot be doubted. It was not made in the presence of complainant, and must be held to be a statement made by Sarah Glenn in her own interest. Drake Coal Co. v. Croze, 165 Mich. 120 (130 N. W. 355.). In Ward v. Ward, 37 Mich., at page 257, it was said:

“Decedent’s declarations were no more evidence for the defense here than they would have been for him in case he had lived and been the contestant and surely he could not have proved his own mere declarations to third parties of his ownership in order to establish his title against the claimant.”

See, also, collection of authorities on this subject in Freda v. Tishbein, 174 Mich. 391-397 (140 N. W. 502, 49 L. R. A. [N. S.] 700).

3. We find no evidence to support this claim. Sarah Glenn visited her banker on two occasions upon the subject of the change of certificates. Her statements there were certainly statements or admissions against her own interest, and in the absence of other evidence must be held to be binding upon her and her estate. Not only did she say that she had at least this sum in her hands belonging to the estate of Christopher Glenn, deceased, but she directed the cashier to change the certificates, and they were found among her papers after her death. We are of opinion that the circuit judge was right in holding that these certificates represented money belonging to the estate of Christopher Glenn.

4. While the evidence shows that Sarah Glenn made such a will, it as clearly shows that she after-wards destroyed the will, and died intestate.

5. We are unable to agree with counsel for defendant that the clause of the will quoted refers to proceeds of the real estate. The will clearly provides that all of the proceeds of the real estate should be specifically disposed of. Two-thirds of the proceeds of the farm were to go to complainant, and the remaining one-third to Christopher Glenn, Jr., Ellen Teaman, Sarah Trumbull, and Mary McMullen, share and share alike. The proceeds from the sale of the other piece of real estate were to be divided equally between William T. Glenn and complainant. It is therefore manifest that there could be no residue of proceeds from the sale of the real estate, and the term “all property of every nature and description which shall then remain” cannot be held to refer to proceeds from the sale of the farm and city property. It must refer to the residue of personal property, or be ineffective.

6. We quite agree with counsel for defendant Backus that under the terms of the will the estate of Christopher Glenn, deceased, should be charged with the funeral expenses of Sarah Glenn. The amount thereof is $236. We think the same rule should apply to the account for expenses of her last sickness. The only evidence on the subject of the amount of the latter is that of the probate register, who testified that it was $65.97. This sum should be added to $236, making $301.97 to be paid by complainant out of the moneys received by her as the proceeds of the two certificates of deposit above described.

We cannot agree with the circuit judge as to the $500 item. We find no evidence to warrant us in holding that complainant is entitled to more than the amount represented by the two certificates of deposit standing in the name of the ^Christopher Glenn estate. Those certificates should be turned over to complainant by the defendant Backus, and the principal and accumulated interest thereon should, upon presentation by complainant, be paid by defendant the Loan & Deposit Bank of Grand Ledge.

The decree of the circuit court, as thus modified, will be affirmed, and the defendant Backus will recover against complainant the costs of this court, to be taxed.

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