author: Moore, J.

text:
    BOVINE v. SELDEN.
    Homesteads — Land Contracts — Assignments—Nonjoinder of Wife — Validity—Abandonment—Estoppel.
    The assignment of a land contract constituting a homestead by the husband without the signature of the wife is void; but where it appears that the failure of the wife to execute such assignment was due to advice that it was not necessary, and that she voluntarily abandoned said homestead for another, and defendant in good faith had made valuable improvements thereon and incumbered the property, she is estopped by her conduct to assert such rights in a court of equity.
    Appeal from Delta; Stone, J.
    Submitted January 5, 1909.
    (Docket No. 7.)

    Decided March 3, 1909.
    Bill by Olivine Bovine against Sarah L. Selden, John M. Olson, and others, for the specific performance of a land contract, and to set aside a deed. Defendants Olson filed an answer in the nature of a cross-bill to quiet title to land. From a decree dismissing the bill, and granting the prayer of the cross-bill, complainant appeals.
    Affirmed.

      Gallup & Gallup, for complainant.
   Moore, J.

This is an appeal from a decree in a chancery case. The questions involved were clearly stated by the trial court in a written opinion prepared by him, which reads in part as follows:

“I have such grave doubt of the equities of the complainant’s claim that I am constrained to dismiss her bill of complaint. Her husband had a land contract of a lot in the city of Escanaba, upon which a house was built, and there is no doubt that on April 14, A. D. 1906, the same was a homestead, and was the homestead of complainant’s husband and family, within the meaning of the Constitution and statutes of this State. On that day complainant’s husband assigned the said contract to the defendant John Olson, in a trade with said Olson, for a farm in the township of Bark River. Complainant did not join in this assignment, and that the assignment was void there can be no doubt. Although in her bill complainant alleged that she refused to join in such assignment, and that she never consented to it, and that the same was made against her protest, and that she was compelled under threats of her husband to remove from said premises, the evidence in the case" fails to support any of said allegations, to warrant any such finding or conclusion. It does appear that her husband sought by such assignment of contract to dispose of the homestead and to trade it for a farm of 240 acres, situated in the township of Bark River, in said county, that prior to said trade she with her husband visited the farm and examined it, and that Olson and his wife visited the homestead, and the trade and exchange of property were discussed and agreed upon. Complainant did not join in the assignment of the contract, because the scrivener who drew the papers ignorantly advised that the same was not necessary.
“While complainant in her testimony seeks to make it appear that she reluctantly moved from the homestead, there is not a word of testimony that she objected or in any manner protested, or that she was compelled under threats of her husband, or in any way was compelled to remove from the place. There is nothing in the evidence to indicate that she made the least protest or objection, to Olson or anybody else, to leaving the premises with her husband and family. The trade seems to have been on Monday, and the complainant and family moved from the place near the close of the week to the farm. The actions and conduct of complainant and her family all indicated that th¿y voluntarily moved from, the home to the farm, without the least intention of ever returning to the place in Escanaba.
“In so far as the conduct of the two families was concerned, it was a mutual arrangement of the parties, in good faith, for the exchange of homes and properties. I think that the real question in the case, under all the circumstances as disclosed by the evidence, is: Was there an abandonment of the homestead by "the complainant and her husband and the family ? That the assignment of the contract without the joining of the complainant was void there can be no question. If the husband and family may in good faith abandon the homestead, without making any deed or conveyance, is it any the less an abandonment when they, in good faith, move from one home to another, without the intention of returning, under a deed or conveyance which is void because the wife has, through her own or another’s ignorance, failed to join in the same? It seems to me not. In determining whether or not there was an abandonment of the homestead, the court ought to consider the real intention of the parties and all of the surrounding circumstances.
‘ ‘ Had complainant remained in possession, or had she been forced out of possession, or had there been fraud or duress of any kind, a different question would be presented. I am satisfied that she and her husband and family moved away from the place in good faith, going to another home, without the slightest intention or thought of ever returning to the old home in Escanaba.
“It may be well to briefly examine some of the cases.”

The learned judge then examined in detail many cases which were supposed to have a bearing upon the case, and concluded his opinion as follows:

“ To my mind there is something inequitable in the claim of the complainant. She seeks to use as a sword what was intended to be a shield. After joining with her husband and family in removing from the homestead, without the slightest intention, on the part of any of them, of ever returning to it,' and after going into a new home and settling there, and without the slightest objection, notice, or protest to defendant Olson, or other interested parties, to indicate that she had an intention of returning and claiming the former home, and after conditions have changed, and after an expenditure of more than $2,000 in improvements on the property, and the placing thereon of liens by way of mortgages in good faith, she, after more than a year has elapsed, files her bill to assert homestead rights. I do not claim that she had alienated her homestead, but it does seem to me that she had abandoned it, and that its character as a homestead had ceased. I shall therefore dismiss her bill, but without costs, and decree that defendant Olson’s homestead rights in said lot be quieted as to said complainant’s claim.”

A careful reading of the record satisfies us as to the justice of his conclusions of fact, and we think the authorities sustain his conclusions of law.

Decree is affirmed, with costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    HENIKA v. BROWN.
    1. Justices of the Peace — Pleadings—Jurisdiction—Presumptions.
    In an action in justice’s court, commenced by long summons personally served upon defendant within the county, the court was justified in rendering judgment for plaintiff on the nonappearance of defendant; a presumption arising from the issuance of a long summons that defendant was a resident of the county.
    2. Same — Review—Certiorari—Conolusiveness of Return.
    On certiorari to review a judgment obtained in justice’s court, the case is heard upon the return; and the exclusion of affidavits used to obtain the allowance of the writ, showing the nonresidence of defendant, was not error.
    Case made from Emmet; Shepherd, J.
    Submitted January 7, 1909.
    (Docket No. 35.)
    Decided March 3, 1909.
    Assumpsit in justice’s court by Charles B. Henika, Frank H. Henika, and Amos L. Henika, copartners as C. B. Henika & Co., against George E. Brown for goods sold and delivered. There was judgment for plaintiffs, and defendant brought certiorari in the circuit court. There was judgment affirming the judgment of the lower court, and defendant appeals.
    Affirmed.

      Frank L. Keating, for appellant.

      John G. Hill, for appellees.
   Moore, J.

This was an action brought in justice’s court to recover a small demand. The case was commenced by long summons. The summons was personally served upon the defendant at, the city of Petoskey. Defendant did not appear, and plaintiffs recovered a judgment, for damages and costs, amounting to $35.65. Defendant removed the case to the circuit court by certiorari. The judgment of the justice was affirmed by the circuit court. Defendant now asks this court to set aside the judgment. He submits two questions for the consideration of this court:

(1) Whether, from the fact that defendant not appearing, and the summons being a long one, the justice erred in rendering judgment without inquiry into, or some evidence before him of, defendant’s residence or nonresidence.
(2) Whether, there having been no such evidence before, or any adjudication upon that fact, the defendant was precluded from showing the- truth of it in this proceeding, in the manner and within the time attempted.

1. A presumption arises from the issuance of a long summons that the defendant is a resident of the county. Segar v. Lumber Co., 81 Mich. 344, 347.

2. The defendant in the circuit court offered the affidavits used to obtain the allowance of the writ of certiorari for the purpose of proving the nonresidence of defendant. These affidavits were offered for the purpose of establishing error, and were excluded by the court. A case of certiorari is to be heard exclusively on the justice’s return. Dooley v. Eilbert, 47 Mich. 615, 616; People v. Hobson, 48 Mich. 29; Mann v. Tyler, 56 Mich. 564; People v. Etter, 72 Mich. 177; Hinchman v. Spaulding, 137 Mich. 655; Wetmore v. Dean, 139 Mich. 627; Ap pleman v. Hahn, 149 Mich. 245; Lewis v. Detroit Board of Education, 139 Mich. 307. The exclusion of the affidavits was not error. The case at bar is governed by the cases of Courtis v. Garrison, 148 Mich. 226, and Appleman v. Hahn, 149 Mich. 248.

Judgment is affirmed.

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


text:
    SCHEER v. DETROIT UNITED RAILWAY.
    1. Street Railways — Personal Injuries — Wrongful Ejection from Oar — Evidence—Question for Jury.
    In an action for personal injuries occasioned by being ejected from defendant’s-car, it appeared that plaintiff tendered a ticket to the conductor for his transportation, which was refused on the ground that it was past the time of day when such tickets could be used. Held, there being a conflict of testimony as to the time of such tender, the question was for the jury.
    S. Trial — New Trial — Argument of Counsel.
    On the argument to the jury, counsel has a right to urge his view of the case based upon that part of the testimony favorable to his client; and where mention is made of testimony which had been stricken out, and the court so informed counsel and he made no further reference to it, a motion for a new trial was properly denied.
    Error to Wayne; Brooke, J.
    Submitted January 7, 1909.
    (Docket No. 14.)
    Decided March 3, 1909.
    Case by Marcus Scheer against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Richard I. Lawson, for appellee.
   Moore, J.

The plaintiff recovered a judgment against the defendant for injuries he received when forcibly ejected by the conductor from one of the cars of defendant. The case is brought here by writ of error.

It is the claim of plaintiff that he and his wife boarded the car prior to 15 minutes past 6 o’clock in the evening; that he tendered the conductor two workingmen’s tickets in payment of the fares; that the conductor refused to receive them; that he was forcibly thrown from the car upon a stone pavement, and received injuries which confined him in bed several days, and from which he had not fully recovered at the time of the trial, three years thereafter. It was the claim of defendant that plaintiff and his wife did not get upon the car until later than 15 minutes past 6 o’clock, and that its conductor had a right to eject the defendant from the car. There was testimony tending to establish each of these claims.

The attorney for the plaintiff in his argument to the jury used the following language, to which exceptions were taken by the defendant:

“Now we have those three. Nadeau has no interest in this case, and he said he tendered a ticket to the conductor after all this trouble, and it was received in payment of his fare.
“Mr. Brennan: That testimony was stricken out,
“The Court: That is true, Mr. Lawson.
“Mr. Brennan: I take an exception to the remark of counsel based upon it.
“Mr. Lawson: Now, we have Architect Smith, the architect of the D. U. R.
“Mr. Brennan: I take an exception to that statement as not based upon the testimony, and it is not true.
“Mr. Lawson: It is based upon the testimony. He went upon the stand there and told you that he was the architect.
“Mr. Brennan: Mr. Lawson knows it is not true.
“Mr. Lawson: And he knows it was 6:15 when he got on that car that night in front of the city hall. Kopple did not look at his watch, and the only way he fixed the time as being after 6:15 is by being refused a transfer from Woodward avenue to Brush.
“Mr. Brennan: I take an exception to that.
“Mr. Lawson: He said it wa's then about 6:16.
“Mr. Brennan: I take an exception to that remark. The testimony is that Mr. Kopple had his watch out after the conductor refused his fare, and he said he was a minute late. I will refer to the record.
“Mr. Lawson: If he looked at his watch and it was 6:16, and he was then on a Woodward avenue car, * * * Smith took his car at 6:16. * * * It couldn’t have been the car. Now, I say to you that I want you to believe the testimony of this engineer because that man came here and told the truth. He gave you the circumstances under which he got upon that car. He gave you the circumstances under which he had gotten upon that car before. He knew the time that he quit his work. He was as regular as the clock, and they haven’t got a witness that is as regular as a clock. He always took that car.”

The case was clearly submitted to the jury. It returned a verdict in favor of plaintiff. A motion1 was made for a new trial based upon the claim (1) that the verdict was against the weight of the evidence; and (2) that the argument of counsel was improper and prejudicial. This motion was overruled. This is said to be error.

1. Was the verdict against the weight of the evidence? The testimony was in sharp conflict. If the testimony offered on the part of the plaintiff was'true, it established that he and his wife got upon1 the car earlier than 6:15 p. m. This raised a question of fact which was properly submitted.

2. Should a new trial have been granted because of the argument of counsel? As before stated, the testimony was very conflicting. Counsel in the argument had a right to urge upon the jury his view of the case based upon that part of the testimony favorable to his client. His argument was justified by the testimony, except that part of it based upon testimony which had been stricken out. When attention was called to that fact, the judge at once informed counsel it was stricken out, and he made no further allusion to it.

Judgment is affirmed.

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


author: Grant, J.

text:
    O’NEILL v. NORTHERN ASSURANCE CO. OF LONDON, ENGLAND.
    1. Appeal and Error — Former Adjudication — Effect.
    Where, on a second trial of an action on a policy of insurance, the evidence is not different from that of the first trial, an adjudication in the Supreme Court that the question involved was for the jury is res judicata on a second appeal.
    2. Fire Insurance — Title of Insured — Land Contract — Validity of Policy.
    A policy of insurance is not void for the reason that the insured was not the sole and unconditional owner of the property, where it appeared that the insurer had full knowledge of all the facts and circumstances prior to issuing the policy.
    8. Same — Defenses—Pleadings.
    Defenses to an action on a policy of insurance, of which notice has not been given in the pleadings, are not available.
    Error to St. Clair; Tappan, J.
    Submitted January 8, 1909.
    (Docket No. 37.)
    Decided March 3, 1909.
    Assumpsit by John G. O’Neill and others against the Northern Assurance Company of London, England, on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Norman I. Miller (Beach & Brown, of counsel), for appellant.
    • Cady & Crandall ( W. L. Jenks, of counsel), for appellees.
   Grant, J.

1. This case is before us for the second time. 145 Mich. 516. A sufficient statement of the case and of the evidence is there made. Upon the first trial the court directed a verdict for the-plaintiffs. Upon the new trial the questions of the cancellation of the policy and the authority of Byron J. McCormick to act for the plaintiffs in the matter were submitted to the jury. We held upon the former hearing that, if the jury should find that Miss Ferrier, who represented the insurance brokers who issued and attempted to cancel the policy, obtained the policy, as she testified, then the jury should find there was a valid surrender. Counsel for defendant now insist that Miss Ferrier’s testimony is true, that she did obtain the policy, and that Byron J. McCormick was the agent of the plaintiffs. Counsel do not point out wherein the testimony in this case differs in any respect from that of the former trial. The decision in that case controls this question, unless the testimony upon the two trials differs. The case has been submitted to the jury in accordance with that decision, and the jury have found that the policy was not canceled. The question whether the case should have been submitted to the jury is res judicata.

2. Is the policy void because the plaintiffs were not the-sole and unconditional owners of the personal property described in the policy? Prior to the issuance of the policy Arthur L. McCormick had made a purchase of the real estate and of the personal property described in the policy upon contracts — one with the plaintiffs, the other with A. H. Andrews Company. The contract made with the plaintiffs O’Neill, Moore, Dixon, and Jenks gave them a lien upon all the personal property in and about the theater, and provided that McCormick should keep all of said property insured. The language of the policy truthfully described all the property as purchased upon contracts. The defendant was by this language notified that something remained to be done by McCormick to complete his purchase, and that both his interest, whatever it was, and that of the other plaintiffs, were insured. Had it desired further information, it was its own fault that it did not obtain it. There were no fraudulent representations as to the condition of the title, and no deception or concealment. The case falls within the following decisions: Sibley v. Insurance Co., 57 Mich. 14; Clawson v. Insurance Co., 121 Mich. 591; Quackenbush v. Insurance Co., 150 Mich. 555; Brunswick-Balke-Collender Co. v. Assurance Co., 142 Mich. 29; Roloff v. Insurance Co., 130 Wis. 402.

3. It is further claimed that plaintiffs cannot recover because no notice was given to the defendant of the fire, and no proofs of loss were furnished in compliance with the requirements of the policy, and that the same were not waived. These defenses are not open to the defendant because it gave no notice of them in its pleadings. Hare v. Protective Ass’n, 151 Mich. 225, and authorities there cited.

The judgment is affirmed.

BiiAiR, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


text:
      In re BRESLER’S ESTATE. APPEAL OF FAEDER.
    1. Wills — Advancements — Books of Account — Evidence — Witnesses.
    Where, in a petition by a legatee for the distribution of a legacy under the terms of a will which provided-that out of the sum bequeathed should be deducted “the amount she may be owing on my books,” it appeared that the amount charged against the legatee was entered on testator’s books in the regular course of business prior to the execution of the will; that the accuracy of the items of the account was proven by competent evidence; that no contention was made on the trial that the account referred to in the will was not the account kept in such books; and that the legatee, the proceedings not being adverse to the estate, was competent to dispute the accuracy of the account, but chose to keep silent. Held, that the admission of the books as evidence was competent to show the amount of the advancements.

    2. Same — Construction—Advancements—Intention of Testator.
    In the construction of words used in wills, the intention of the testator, as appears from the connection in which they are used, is the controlling factor; and where it appeared that several of the advancements charged to the legatee were in fact made to her husband, they will be presumed to have been made for her benefit, and the fact that the words used in the will referred to such amounts as “may be owing on my books ” does not necessarily refer to future transactions, where it appears that no advancements were made after the execution of the will, and there appeared no intention to forgive or cancel the advancements made.
    3. Same — Books of Account — Incorporation as Part of Will —Identification—Sufficiency.
    The incorporation by reference into a will of books of account kept by testator is competent if they were in existence at the time of the execution of the will and are identified by clear and satisfactory proof as the books referred to in. said will; and where, by the terms of the will, “the amount she may be owing on my books ” was to be deducted from the legacy bequeathed, it was a sufficient reference, there being but one account and that in the documents.referred to in the will.
    4. Same — Construction—Advancements—Deduction from Legacy.
    In an account against a legatee, which, by the terms of the will, was to be deducted from the amount bequeathed, items were charged to the legatee which had, in fact, been paid to her husband. There was no separate account kept with the husband, and the account showed an intention of the testator to charge such amounts to the legatee. Held, that, it being competent for both of the. parties to dispute the apparent intent of the testator, and not having done so, considered with the right of the testator to so charge the sums paid, the items were established as proper charges against the legacy.
    Error to Wayne; Murphy, J.
    Submitted January 11, 1909.
    (Docket No. 3.)
    Decided March 3, 1909.
    Rose Bresler Eaeder petitioned the probate court for an order of distribution of a legacy under the last will and testament of Charles E. Bresler, deceased. There was an order granting the petition, and Amanda Bresler Smith and others appealed to the circuit court. ' There was judgment for petitioner for less than the amount claimed, and she brings error.
    Affirmed.

      Tarsney & Fitzpatrick, for appellant.

      Elliott Gt. Stevenson and Leo M. Butzel (William L. Carpenter, of counsel), for appellee.
    Charles E. Bresler died testate December 12,1898, leaving surviving him a widow and seven children, including the appellant, Rose Bresler Faeder. His will was executed March 9, 1891. The will was admitted to probate June 23,1899. The fourteenth paragraph of his will reads as follows:

      “I give my daughter, Rose Faeder, the sum of sixty thousand dollars ($60,000) as her share of my estate, of which sum shall be deducted the amount she may be owing on my books. Forty thousand dollars 'shall be invested therefrom in good interest paying security, or can remain in the hands of my executors until the final settlement of my estate, and the interest of 5 per cent, per annum paid to her during her natural life. At her demise it shall go to her children, share and share alike.”
    After directing the payments of his debts and certain specific legacies named in the will, he bequeathed the residue of his estate to his six children in equal shares. Appellant, Rose Faeder, filed a petition in the probate court praying an order directing the administrator with the will annexed to pay her the whole of said legacy. The probate court held that there was no amount owing said deceased by said Rose Faeder on his books, and that there were no deductions to be made from said legacy. Several of the residuary legatees appealed that decision to the circuit court. The circuit court reversed the decision of the probate court and instructed a verdict holding that there was owing said deceased upon his books the sum of $19,261.88, and deducted that amount from the $60,000. From that judgment Mrs. Faeder has appealed.
    The books of account of the deceased were received in evidence. One of these books contained an account entitled “ Rose Bresler Faeder.” The first entry therein was on April 1, 1885; the last December 21, 1886. The account was then carried forward to another book in form a ledger; the first entry therein being January 8, 1887, and the last June 7, 1890. According to this account there was owing to the testator from his daughter Rose the sum above mentioned. These books of account were proven to be in the handwriting of the testator and his son Joseph, who was also deceased. It was shown that Joseph assisted his father in keeping his books. The items of this account were paid largely to the husband of Rose, and some to other parties -for her benefit or that of her husband, and some to her direct. The credit column of the account shows entries of amounts paid back to testator by her husband, or for him, and Mrs. Faeder is given credit for them. These are books of original entry. Those entries not entered there in the first instance are entered from the memorandum stubs of checkbooks and two cashbooks. The appellees corroborated these entries, except in a few instances, by producing the checks or drafts and corresponding entries. Counsel for appellees have in their brief collated the evidence verifying these entries. It was conceded upon the trial that the drafts, 33 in number, bore the signature of Mr. Faeder as the drawer.
    Counsel group their assignments of error under four heads:
    (1) That no sufficient foundation for the admission of the books, and no sufficient showing of necessity for their introduction, were made.
    (3) The books were not competent evidence of the fact of paying, laying out, and expending moneys to or for the legatee by the testator. •
    (3) The books cannot be considered for the purpose of reducing the amount of the legacy upon the theory that they had been incorporated by reference into the will, and were not probated as a part of the will, or executed with the formality required as to testamentary disposition.
    (4) The court erred in admitting evidence tending to show payment of the moneys charged in the legacy account not to her personally, but to her husband and another.

       For person’s books of account as evidence between other parties, see note to State Bank v. Brown (N. Y.), 53 L. R. A. 513.

   Grant, J.

{after stating the facts). 1. It is no longer necessary in this State to introduce testimony of witnesses not parties to the suit that they have settled by the books, and have found them correct. Seventh-Day Adventist Publishing Ass’n v. Fisher, 95 Mich. 274. To this extent that case overruled Jackson v. Evans, 8 Mich. 476. The statute permitting litigants to testify obviated the necessity for that rule. In Seventh-Day Adventist Publishing Ass’n v. Fisher, the clerks who kept the books testified that they were correctly kept and the items duly entered, and the books were admitted. The testator in the language, “owing on my books,’’.referred to his books of account, kept in the course of his business. Lawrence v. Lindsay, 68 N. Y. 108. He was a business man. The entries in the account with his daughter, introduced in evidence, are shown to have been made in the regular course of business and on the books of original entry. The entries were all made before the will was executed. The accuracy of most of the items in the account is proven by other competent evidence. The competency of these books as evidence is clearly shown by Macomb v. Wilkinson, 83 Mich. 486. The court said in that case, speaking through Justice Cahill :

“The daybook was authenticated asoné kept by Mr. Thoms in his lifetime. The entry was one of many made by him in the regular course of business, and comes within a familiar rule of evidence. Price v. Earl of Torrington, 1 Smith’s Lead. Cas. (8th Am. Ed.) 563, and notes.”

A book of accounts in the handwriting of a deceased partner was held admissible as tending to prove both a partnership and the condition of its accounts. Howard v. Patrick, 38 Mich. 795. See, also, Dodge v. Morse, 3 N. H. 232; Hoover v. Gehr, 62 Pa. 136; New Haven & Northampton v. Goodwin, 42 Conn. 230.

This account, however, was admissible for another reason. It was made upon the testator’s books; he understood it; he made many of the entries in it. Until his illness in September, 1892, he looked after his own business. It is not contended, and cannot be, that his will did not refer to this account. This being so, it would be immaterial where he referred to the account as kept. Where a testator provided in his will that any sum of money that he might advance to any of his legatees, and should signify the same in writing, should be deducted from the legacy, it was held that a paper stating that he had advanced certain sums over and above all claims and demands or set-off was inadmissible, because it furnished no means to determine when or how it was made up, or what items were allowed; but the court said:

“ We have no doubt that, if the amount stated in this paper was actually advanced to appellant, the writing was proper to show decedent’s purpose to treat it as an advancement. It complies with the method suggested in the will, and, while not strictly within the terms of the statute concerning advancements, is within its equity as evidence of intention; but whether it is evidence that advances were actually made is a different question.” McClintock’s Appeal, 58 Mich. 154.

If in that case, as in this, where the checks and drafts and cash payments have been proven by other evidence than the paper itself, the evidence aliunde had established the accuracy of the account, it would have been admissible. The claim of the appellant was not adverse to the estate, and therefore both she and her husband were competent witnesses. If this account was not accurate, they alone could have shown its inaccuracy, for they alone had knowledge of the facts. McClintock’s Appeal, supra. They were present at the trial and chose to keep silent. Nearly all the items were traced directly to appellant’s husband or herself. This evidence, standing uncontradicted, and given in the presence of those who alone could contradict it, establishes the account beyond controversy. There was therefore no error in admitting the account upon the testator’s books.

2. It is urged that the expression “owing on my books ” necessarily implies the ordinary relation of debtor and creditor between the testator and his daughter; in other words, that the payments or advancements must have been made to her personally, and that, inasmuch as most of them were to her husband, they were not owing from her to her father. The word “owing” does not always necessarily imply an enforceable obligation. Used in a business sense in correspondence or contracts between business men dealing with one another,’ the word naturally implies a legal obligation. Other words may be used in connection with it to explain and modify its meaning when used in ordinary transactions between debtor and creditor. It is manifest that the testator, in making his will, treated payments or advancements to his daughter’s husband the same as made to her for her benefit. Such a course is natural,, and a parent may well consider money given to the husband as intended for the benefit of his wife. The items in this account are not charged as having been paid to the husband, but as paid to her. The testator clearly did not have in mind the creation of a legal liability including only such sums as he gave directly to his daughter, but such also as he gave to her husband, from which presumably she would derive a benefit. He therefore referred to the account as he kept it and as it appeared on his books. Where a testatrix used the words “owing and unpaid,” referring to certain obligations of her sons, who were her legatees, it was held that the term “owing” did not necessarily imply an enforceable obligation, but must be read as explained by its associate word “unpaid.” In re Tompkins’ Estate, 132 Cal. 173. In construing words in wills the intention of the testator, as appears from the connection in which they are used, is the controlling factor. In this case there is no question but that the testator intended the words “owing on my books” to include the sums which he had paid to his daughter’s husband. It is, however, insisted that the words “may be,” used in the will, referred to future transactions, and not to those already appearing upon his books. Here again the learned counsel insist upon a strict construction, and cite cases where in construing statutes the words “may be” have been held to be prospective only. It is a cardinal rulé, in construing legislative enactments, that they will not be given a retroactive effect unless the language used permits no other reasonable construction. Ihmsen v. Navigation Co., 32 Pa. 153; 2 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 580; Black on Interpretation of Laws, § 103. That rule does not apply in the construction of wills. The testator in this case had an account on his books with his daughter, commencing in April, 1885. Whether he contemplated further additions to this account or further credits to his daughter we need not consider. The fact is that the account stood unchanged after his will was made. To sustain her contention would result in holding that the testator intended to forgive and cancel the account of nearly $20,000 charged against her. No such intention can possibly be inferred.

3. Does the statute on wills of this State (3 Comp. Laws, §§ 9265, 9266) permit a reference in a will to another document? Counsel’s argument is that these books have not been attested and signed as the statute requires, and therefore the reference to them is invalid. Counsel admit that other courts have held such reference valid, but state that the question has never been decided in this State. McClintock’s Appeal, supra, recognizes the rule, although the precise question was not presented. The practice of referring to such documents in wills has been common; the only requirement being that the reference should be so definite as to leave no question of identification, although evidence aliunde might be necessary to establish its identity. The rule is well stated, and a great number of authorities cited, in a note to Thayer v. Wellington, 85 Am. Dec. 762 (9 Allen [Mass.], 28):

“If a will, duly executed and witnessed according to the requirements of the statute, incorporates into itself by reference any document or paper not so executed and witnessed, whether such paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, will take effect as part of the will, and be admitted to probate as such.”

Manifestly, cases like that of In re Young's Estate, 123 Cal. 337, do not apply to this case. In that case the testatrix willed to her husband, among other things, two deeds. The will left no means of identification. Any two deeds would comply with the terms of the will. Parol evidence was held not admissible in a will to explain a patent ambiguity. There was no reference to two specific deeds which could be readily identified. Neither does the recent case of Bryan’s Appeal, 77 Conn. 240 (68 L. R. A. 353), control. There the testator bequeathed to his wife $50,000, “in trust, however, for the purposes set forth in a sealed letter which will be found with this will.” The court held that:

“ The reference is so vague as to be incapable of being applied to any instrument in particular as a document existing at the time of the execution of the will. The vice is that no particular paper is referred to.”

Further discussion of the point is unnecessary.

4.- Is the reference in the will sufficiently definite? It is difficult to conceive how it could be more definite. It referred to but one account. It referred specifically to the place where it was to be found, namely, “ on my books.” The clear weight of authority sustains this provision of the will. 1 Underhill on Wills, §447; Robert v. Corning, 89 N. Y. 227; In re Moore, 61 N. J. Eq. 616; In re McKibbin’s Estate, 207 Pa. 5.

5. Are the payments or advances made by the testator to his son-in-law properly chargeable against the legacy? Counsel for appellee cite cases from North Carolina, Kentucky, Alabama, Virginia, and Maryland, holding that advancements made to a son-in-law are presumed prima facie to be given in advancement to his daughter. Those decisions were probably rendered under the common law governing the rights of married women. Under our own married woman’s act, giving to women the exclusive control over their own property, it is at least very doubtful whether the payments or advancements involved in those decisions could be charged against a legacy, or against a daughter’s interest in the estate of an intestate. The decision of that question is unnecessary in this case. While the term “advancement” is generally used in cases of intestacy, the term is also used as applicable to cases of wills. Where in either event the intention is clear that, the sums advanced should be deducted from the amounts due the devisee under a will, or heir in case of intestacy, that intention must prevail. If the testator in this case had entered an account on his books with his son-in-law in the ordinary way, showing the relation of debtor and creditor, the natural presumption under our statute would be that the testator had an independent account with his son-in-law and was dealing exclusively with him, and not with his wife; but the testator had no such account with Mr. Faeder. Three small items in this account with his daughter are entered “B. L. Faeder.” What was the testator’s intention in making these entries and keeping this account with his daughter and exclusively in her name?

Clearly he did not intend to create the relation of debtor and creditor between himself and Mr. Faeder, or he would have made an independent account with him. It was equally clear that he did intend to charge the amounts, paid to Mr. Faeder, to his daughter. If it was so charged with her consent, it became a legal liability against her. The intention of the testator must prevail, unless the law forbids. It is beyond dispute that the testator in making these entries and in keeping this account understood that the relation of debtor and creditor between him and his son-in-law did not exist, and that he did intend these payments to be made on account of his daughter. The estate has no claim against Mr. Faeder, for the testator has clearly indicated that he did not consider his son-in-law as a debtor. Here also, if there were doubt about the facts, it was in the power of the appellant and her husband to refute them. Marsh v. Brown, 18 Hun (N. Y.), 319. Aside from the above consideration, “a man may do what he will with his own.” If Mr. Bresler desired to advance money to his son-in-law and deduct that from the amount he desired to leave to his daughter, there is no objection, legal or moral, to his doing so. This he intended to do, and did. No other conclusion can be deduced from his will and the account.

6. It is lastly insisted that the sum of $10,092.44 must in any event be deducted from the amount. This is claimed for the reason that on August 11, 1885, there appears in the credit column of the account this amount. That item is the sum of the items in the debit column up to that date. Below these are entered several other items as credits. This item of $10,092.44 is entered in the credit column directly opposite an item of $300. In carrying forward the account to another book this $10,09,2.44 is not deducted. Upon the face of the account it is apparent that for some reason the testator added the amounts charged at the time of the then last entry, and for convenience placed the amount of the debit column directly opposite. There is nothing in the record or upon the books to give color to the claim that this was intended as a credit, except the bare fact that it appears in the credit column. Here again it may be said that if the appellant or her husband had made any such payment, or was entitled to any such credit, it was in their power to show it; but they chose to keep silent.

-The judgment is affirmed.

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


author: Hooker, J.

text:
    GOODFELLOW v. DETROIT UNITED RAILWAY.
    Carriers — Street Railroads — Personal Injuries — Negligence.
    Plaintiff, a boy about 13 years of age, boarded, an open street oar with his father, taking seats in the rear of the car. The father paid fares for both, and afterwards the boy changed his position to the forward end of the car. Upon the conductor asking him for his fare he stated that his father had paid it. He was asked to show where his father was, and started to go on the running board to where his father was seated, when he slipped and fell from the car, sustaining the injuries complained of in his declaration. Held, that, as plaintiff could easily have pointed out his father without leaving his seat, and as there was no evidence showing that the conductor obliged him to take a position of danger, there was no negligence, and a verdict was properly directed for defendant.
    Error to Wayne; Rohnert, J.
    Submitted January 11, 1909.
    (Docket No. 52.)
    Decided March 3, 1909.
    Case by John Carrol Goodfellow, by next friend, against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      May & Dingeman, for appellant.

      Corliss, Leete & Joslyn, for appellee.
   Hooker, J.

The plaintiff, a boy over 13 years of age at the time, and timekeeper in an amusement side show at the Belle Isle Bridge, in Detroit, in company with his father, boarded one of defendant’s open cars about 11 o’clock in the evening on June 15, 1906. The car had running boards. They took seats near the rear of the car. At a stop made by the car the boy changed to the front seat, facing toward the rear. He was separated from the outside of the car by one or two persons. Facing him was a boy who had told him that he intended to “beat his fare.” The plaintiff’s father paid fares for both himself and plaintiff, while the plaintiff sat with his father. After he had gone to the front of the car, plaintiff was asked twice for his fare, and each time he answered the conductor that his father had paid his fare. The conductor again approached from the rear of the car, this time on the left running board, and again asked plaintiff for his fare, and he again answered that his father had paid it. A boy, said by some witnesses to have been sitting next to the plaintiff and by plaintiff said to have been facing him, was the one who had said to others and to the plaintiff that he intended beating his fare, and that he generally did so, and there was testimony tending to show that he was dodging the conductor by going back upon one running board as the conductor went forward upon the other. After the plaintiff stated for the third time that his father had paid his fare, the conductor, who was distant six or eight feet, on the opposite side of the car, said: “Show me your father.” There was testimony that he spoke harshly and in a loud tone. Thereupon the boy got up from his seat, and started along the running board on his side of the car toward the rear. of the car, and, slipping off, was hurt.

This action was brought to recover damages, negligence being charged. The first count charged that—

“The said conductor in charge of said car rudely and menacingly insisted that the plaintiff herein show the said conductor where his father, said Willard H, Good fellow, was, and required and forced by his commanding, menacing, and threatening conduct the plaintiff herein to go out of his seat and place of safety in said vehicle where he was then located, and go out and along the running board or footboard of said car while the said car was going at a high rate of speed.”

The second count alleged:

‘£ Its conductor rudely approached plaintiff herein while the said car was going at a high rate of speed, and demanded the payment of his fare; and when the plaintiff herein explained that Willard H. Goodfellow, his father aforesaid, had already paid plaintiff’s fare, defendant’s said servant rudely and' menacingly denied that plaintiff’s fare had been paid, and rudely and threateningly insisted that the plaintiff herein show the said conductor where his father, said Willard H. Goodfellow, was, and menacingly and threateningly reached for and attempted to grab the plaintiff herein and put plaintiff in fear of bodily harm on the part of said conductor. That plaintiff herein in attempting to avoid the apprehended danger from the said conductor stepped out of his seat and on the running board or footboard of said car.”

The learned circuit judge directed a verdict for defendant, apparently upon the ground that the plaintiff had failed to prove negligence on the part of the conductor.

The plaintiff testified on direct examination:

“After the fare was paid, and I had taken my seat in the front part of the car, the conductor came up the aisle, and said ‘Give me your fare,’ and I said my fare was paid, and he went back and in a few minutes he came up again and said, ‘ Where is your fare ? ’ and I said ‘ My fare is paid,’ and he came a third time and said ‘Where is your fare?’ and I said, ‘It is paid,’ and he said, ‘Who paid it?’ and I said, ‘My father,’and he said, ‘ Show me your father,’ and I went down the aisle to show him my father and I must have made a slip for I fell off, and that is the last I know. When I speak of the aisle, I mean the outside board — the running board.
“Q. Now, what was — just explain to the jury what is the manner of the conductor, what was his manner with reference to what he said and did, did he say it in a gentle voice or did he say it — what did he say ?
“A. In a rough tone,
“Q. What was his manner ? Indicate, if you can, the tone of voice as far as you can, and anything that he did, or his actions, the actions or tone of voice on the part of the conductor, at the time he gave you those instructions.
“A. He said: ‘ Show me your father.’ The conductor was on the opposite side to what I was, and I was within one foot of the other side of the car. * * *
“Q. Now, state how you came to fall ?
“A. I must have missed my hold or slipped.
“Q. Slipped?
“A. Yes, sir.”

On cross-examination he testified:

“Q. Do you know a boy that was riding on the car the night of the accident ?
“A. I didn’t know him. I saw him trying to beat his fare.
“Q. Who was he?
“A. I don’t know. I could not tell. He told me he was going to beat his fare before he got on. There was a boy up there that did not pay his fare, and the conductor was trying to locate that boy. I did not get up’ and go forward and sit next to that boy. He sat in front of me, I think. I cannot explain that exactly. I saw him go up to the back of the car when the conductor came up for my fare.
“Q. He had been up in front of the car, and, when the conductor came up this time on the right-hand side, this boy went back on the other side, didn’t he ?
‘A. The conductor was on the left-hand side and the boy was on the right-hand side.”

This was all of his testimony bearing on the conduct of the conductor.

Julius Suckert testified:

‘‘ I was standing on the back of the car, and I heard a rather loud argument on the forward part of the car, and all of a sudden a boy came running along the running board on the left side of the car between the tracks, sideways, grabbing from seat to seat to get back, and he was almost up to the rear when he lost his grip and fell. There were a number of gentlemen back there. The general appearance of the boy indicated that he was very much frightened.”

Charles Heck testified:

“ Q. What first attracted your attention to it with reference to the accident ?
“A. Why, I heard an argument in the front end of the car that attracted my attention that way naturally, and about the time of the argument or right shortly after that it seems the boy got up from the seat. I didn’t see him get from the seat, but I saw him step down on the running board. He probably went a foot or two back of that and slipped by reaching one of those handles. Ho fell'anyway.”

On cross-examination he said:

“ I think that it is about between seven and eight feet from one running board to the other. The seats were all filled at the time, to the best of my recollection. All were seated. There were some standing on the rear platform. There was nobody on the inside running board. Whether on the other running board I do not remember. This running board is 10 to 12 inches wide, in the neighborhood of 12 inches wide, with handles on the posts. I didn’t notice the boy at all before he got up and made the slip. I saw him just as he was stepping down on the running board. He stepped down all right and took hold with his hands of the bars, and apparently passed two or three feet towards the rear and then fell. I think he had got about as far as the second or third seat. I would not be positive of that. I saw the conductor when I heard the argument in front. He was standing on the running board on the east side of the car. He was about the second seat. It may have been the third seat. He was close to the front. I would not say positively. I would not be positive about that. He might have been a little to the rear of the first seat.
“Q. What was said at that time was said in such a tone of voice that at your distance you could not tell what was said ?
“A. No, sir.
“Q. If the conductor was opposite the second or third seat when you heard the conversation or voices, he would have been perhaps 7 or 8 or 10 feet from the boy ?
“A. It depends upon where the boy was sitting. I don’t know whether he was in the middle of the seat.
“Q. He said he was sitting in the second seat from the west side of the car. That makes the conductor 8 or 10 feet away ?
“A. It would not be quite that far. The car is not that wide.
“Q. But he was back opposite the second seat, you say?
“A. Perhaps 6 feet or so.
“Q. The noise of the car was as usual in the gearing and moving wheels ?
“A. The same as a car usually runs.
“Q. Of course, in order to speak to a person 7 or 8 feet away, it would be necessary to raise your voice in order to be heard ?”

Martin Lang testified:

“ I saw the conductor go up there. The conductor asked the boy for his fare. The boy says, ‘ My father has paid it.’ The conductor went to the rear of the car. He was gone two or three minutes perhaps. Then he came up, and asked the boy for his fare again. The boy said, ‘ My father paid my fare.’
Q. Tell us what the conductor said to the boy. Indicate it as near as you can, his manner in doing it. Indicate what transpired there to the jury. Give us the conversation and his manner and tone.
“A. The conductor asked the boy for his fare the second time, and he said, ‘My father paid my fare,’ and by that the conductor got harsh and he said ‘ Show me ’—
“Q. Tell us, state the exact conversation that took place between the conductor and the boy on this last occasion, and, if there is anything done, any actions on the part of the conductor, I should like it if you would indicate those, those actions and the tone of voice on the part of the conductor.
“A. The conductor leaned over in the aisle, and said, ‘Show me your father, who paid your fare,’ and by that the boy got up and started for his father. He said it louder than I said it. The boy got up and left his seat, and went towards the rear end of the car. The boy passed one boy that was sitting on the outside of the seat, and he went down on the running board and straight for the rear end of the car. The conductor started for the rear end of the car, too, on the opposite side.”

On cross-examination he said:

‘ ‘ I had known this boy for some time. He was a neighbor of ours once. He lived from 75 to 100 feet from where I was. I had seen another boy up with this boy. I had seen this other boy once or twice before. I seen him on the car. I was talking to the other boy the night the accident happened before I got on the car. Johnny Good-fellow was not with me at the time. This other boy said: ‘ I am going to beat my fare home. I most generally do.’ That boy was up in front next to Johnny. I was three or four seats back from the front seat. * * * The conversation that I heard between the conductor and John Goodfellow occurred after I had changed my seat. I sat right next to the plaintiff. The conductor was standing on the running board at the time of the conversation. He was right in between the front two seats both facing one another, on the running board. I was nearest the conductor. Johnny did not say to him, ‘ I will go back and show you my father.’ * * * The first time that I saw Johnny Goodfellow on the car was when I noticed him in the front seat of the car. I did not see him pass from the rear end of the car on the running board up to the front.”

This is all of the testimony bearing upon the question of negligence. It justified the inference that the conductor had doubts of the payment of plaintiff’s fare, and, when the boy reiterated that his father had paid it, he asked him to show him his father. There is nothing to sustain the allegation of the first count that the conductor required and forced by his commanding manner and threatening conduct the plaintiff to go upon the running, board. Nothing indicates that he expected him to do more than designate his father, which he could easily have done without leaving his place. The case is entirely wanting in proof of the allegation in the second count that he menacingly and threateningly reached for or attempted to .grab the plaintiff. The entire testimony goes no further than to show a request or demand that he show him his father, said in a harsh and cross tone of voice. There was nothing to indicate to the conductor or lead him to anticipate the action of the plaintiff. It was his plain right and duty to ascertain whether this fare had been paid, and a right to have plaintiff point out the person who had paid it. That is all that he asked the plaintiff to do, and the plain implication of the question was that he would ask such person if the statement of the boy was true. There was nothing to cause the boy to attempt to escape from the conductor and nothing which required the conductor to anticipate such action. Hence there was no negligence.

The judgment is affirmed.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred.


text:
      In re McNAMARA’S ESTATE. McNAMARA v. MICHIGAN TRUST CO.
    1. Appeal and Error — Evidence—Exclusion—Grounds.
    On appeal from a judgment against an estate for an insufficient amount for services rendered decedent during her lifetime, the exclusion of testimony of physicians, on the ground that the answers were privileged, will not be regarded as reversible error, where an examination of the record discloses that if a larger verdict had been given by the jury it would have been the duty of the trial court, on proper motion, to ■ set it aside as excessive.
    2. Evidence — Opinion Evidence — Competenoy.
    In an action on a claim against an estate for services rendered, the opinions of witnesses, who had some knowledge of the services rendered and the value thereof, was properly received.
    3. Executors and Administrators — Claims—Services—Amount of Recovery — Instructions.
    In such action, it appeared that the claim was based on an agreement that decedent should pay claimant out of her estate after her death; that some three months prior thereto ' decedent made a deed to claimant of property valued at $6,000 and placed it in the hands of another to be delivered on her death; that the consideration expressed in said deed was “one dollar and other good and valuable considerations” the receipt whereof was acknowledged; that claimant paid no money for the deed; and that decedent stated after the execution of the deed that she had paid claimant nothing for her services. Held, there being no other testimony opposed to the inference that consideration for the deed consisted of services rendered, that, either the witness misunderstood decedent in regard to such statement, or that decedent was ignorant of 'the effect of the delivery of the deed, and the court properly directed the jury to deduct from their verdict the value of the property deeded.
    4. Same — Claims—Services—Amount of Recovery — Inadequate Compensation — New Trial.
    It appearing that, for services to decedent for a period of 18 years, claimant, in addition to a home, including her board and clothing, recovered a verdict of §17,242, it was not error to deny a motion for a new trial on the grounds that such verdict was inadequate and against the weight of the evidence.
    Error to Kent; Perkins, J..
    Submitted January 12, 1909.
    (Docket No. 75.)
    Decided March 3, 1909.
    Mary McNamara presented a claim against the estate of Mary McNamara, deceased, for services rendered. The claim was allowed in part by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant for an insufficient amount, and she brings error.
    Affirmed.

      Black, Beasoner & Hayden, for appellant.

      Thomas P. Bradfield (Kleinhans & Knappen, of counsel), for appellee.
   Moore, J.

This case has been here before, and is reported in 148 Mich. 346. A reference to the opinion then handed down will be helpful in understanding the issues involved here. The claimant was distantly related to Mary McNamara, deceased, against whose estate she makes a large claim for services rendered from June, 1885, to February, 1904, under an alleged promise of compensation, which the claim presented states in the following terms:

“ If claimant would remain and care for and look after her [deceased] and personally care for her, attend the household duties and other business matters of the deceased, she, the said deceased, would pay the claimant well and liberally for all her services out of her estate at the time of her death, and that such allowance payment would be sufficient to keep claimant well during the balance of her life.”

When a young woman, Miss McNamara came from Ireland to relatives in Wisconsin. After being with them about a year, she came to live with Mrs. McNamara at Grand Rapids in June, 1885. She continued to live with Mrs. McNamara, who was a woman about 45 years old at the time of claimant’s arrival, until Mrs. McNamara’s death in February, 1904. Before claimant came to America, she taught school in Ireland, and was paid for her teaching $30 a year and her board. While in Wisconsin she passed an examination for school teachers in one of the lower grades, and was told she could get a school later, when there was a vacancy, at $35 or $40 a month for eight or nine months of the year, she to board and clothe herself. The husband of Mary McNamara, the deceased, died in 1883. From the time of her husband’s death Mrs. McNamara lived a quiet life. She dressed plainly, lived economically, and gave largely to charitable institutions. Mrs. McNamara and the claimant lived quietly, paid but few calls, and received comparatively few visitors. During the 18 years claimant was with her, deceased left Grand Rapids three times. She went to a sanitarium in Milwaukee, in the summer of 1903, and that and the following winters she went to Phoenix, Ariz., where she died in February, 1904. Her health was poor the last few years of her life, but she was confined to her room or bed but little of the time until the last winter of her life. She was able to be up and about, and to attend church daily up to within a few months of her death. The deceased and claimant lived happily together. In 1891 deceased made a will leaving $5,000 to claimant in consideration of claimant’s services to her and out of deceased’s regard for claimant. This will was offered in evidence, but it was admitted it was disallowed when offered for probate. Before Mrs. McNamara left Grand Rapids for Arizona the last time, and less than three months before her death, she deeded to claimant her Sheldon street property, where they lived, and also a small house. The deed was signed and acknowledged in the presence of the claimant, and witnessed by Harriet L. Martin and Mary Dias. On the evening the deed was signed, and in claimant’s presence, Mrs. McNamara stated the houses and lot covered by the deed and the $5,000 provided for claimant by will was in compensation for claimant’s services. The deed was delivered to Henry J. Richter with written instructions to deliver it to claimant after Mrs. McNamara’s death. This deed was delivered to claimant soon after Mrs. McNamara’s death, and claimant has been in possession of the property ever since. In 1906 she sold the small house for $1,000. It was agreed by counsel that these houses were worth $6,000 at the time claimant took possession of them. The claimant did the housework, excepting the heavier household tasks, such as washing and heavy sweeping, and she went with Mrs. McNamara as a companion when she went out. The claimant nursed and cared for Mrs. McNamara when her condition required it. During the last years of her life, deceased required a good deal of attention. Claimant also did errands and commissions of a business nature, and on' several occasions kept track of the work being done by contractors for deceased. She accompanied deceased when she went to consult with her attorneys, and wrote out receipts for the rent of two small stores owned by her, and occasionally looked after the repairs thereon. The estate left by Mrs. McNamara, in addition to the Sheldon street property deeded to claimant, was vacant property, and a brick building containing two stores and some living rooms above, with a gross rental value of about $90 a month, located in Grand Rapids. The assessed valuation of all the property is $37,500. The appraised valuation is $55,050.

There is nothing to indicate that the value of this property was increased by any work claimant did in relation to it. The claimant during all this time had all the expenses of her living defrayed by Mrs. McNamara. Upon the second trial a special question was submitted to the jury as follows:

“Did the claimant and the deceased at the time of the commencement of the service of the claimant to the deceased, or during the continuance of that service, enter into an agreement that if the claimant should remain with the deceased and care for her and look after her, and personally care for her, attend to the household duties and the other business matters of the said deceased, she, the said deceased, would pay the claimant well and liberally for all .the services out of her estate at the time of her death, and that such allowance and payment would be sufficient to keep the claimant well during the balance of her life?”

The jury answered the special question “No.” The jury fixed the value of the services of claimant at the sum of $17,242, and by direction of the court deducted therefrom the value of the real estate which had been deeded to Miss McNamara, which it was agreed was of the value of $6,000.

The counsel for appellant claims error as follows:

(1) Because the court erroneously refused to allow certain questions and answers contained in certain depositions to be read in evidence.
(2) Because the court allowed certain witnesses of the contestant to state the value of claimant’s services without showing their qualifications so to do, and without including in their answers the several different kinds of work the claimant rendered the deceased.
(3) Because the court ruled as a matter of law, and so directed the jury, that the value of the property deeded to claimant must be deducted from whatever was due her for services and refused to submit to the jury the question as to whether the property deeded to claimant was not a gift to her rather than a payment.
(4) Because the court overruled the claimant’s motion for a new trial because the verdict was inadequate and against the weight of evidence.

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

1. The questions and answers excluded were found in the depositions of Dr. Stroud, who treated the deceased while she was in Arizona, and Dr. Stack, who treated Ner while she was in the sanitarium in Wisconsin. Much of the testimony of these witnesses was received in evidence. As to portions of it, objection was made that it was incompetent because the witnesses were physicians, and the answers given were privileged. The trial judge sustained the objections. Counsel for claimant insist this is error, while counsel for the estate are equally insistent that it is not error. Each of them cite many authorities in support of their respective claims. In our view of the case, it is not necessary to decide this question. The record discloses that Dr. Stroud had no knowledge of the deceased or of the claimant except while they were in Arizona. Dr. Stack’s knowledge of them was confined to when they were in Wisconsin. If the testimony of both these witnesses had been received and acted upon by the jury, it, when taken in connection with the other testimony disclosed by the record, would not have justified the jury in returning any larger verdict than it did return, and, if the verdict had been larger, it would have been the duty of the trial judge to set it aside as excessive, upon proper motion being made.

2. Did the court err in allowing certain witnesses for contestant to express an opinion as to the value of claimant’s services ? An examination of the record shows that each of them had some knowledge of the service rendered, and of the value thereof. The testimony was properly received.

3. Did the court err in directing the jury to deduct the value of the property deeded to the claimant from what they found to be due her for services ? In disposing of the case when it was here before, Justice Montgomery referred to the deed as follows:

“The contract alleged and proved was a contract to compensate claimant for her services out of the estate of decedent. By the conveyance in question to become operative at the death of decedent a portion of her estate was set apart to claimant. It was a transfer in kind, and prima facie payment pro tanto.”

We have already referred to the testimony as to what. was said and done when this deed was made. The consideration recited in the deed was:

“ That the said party of the first part for and in consideration of the sum of one dollar and other good and valuable considerations to her in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, does by these present's grant, bargain, sell,” etc.

It is agreed that claimant paid no money for this deed. After the death of Mrs. McNamara the claimant wrote her cousin from Phoenix on February 21st, in which letter the following occurred:

“ The body is well embalmed. I saw it yesterday. She looked handsome even in death. Before she left home in November, she deeded to me the Sheldon street property. There is also a sum mentioned in the will. The bishop is the executor, and most of the property, as I suppose you expected, goes to charitable institutions. We had return tickets, so the body was taken for one. She used to say if she died out'West to bury her there to save expense. I always told her right out that I would never bury her like a pauper out here. She would tell the people that ‘ Mary would not leave her to be buried here.’ She did not realize that death was at hand; it came so easy, though she suffered much for five days, the length of her last illness, I miss her terribly, she was so pleasant and good company. My sister lives in Chicago and will accompany me from there to G. Rapids for the funeral.”

The only testimony opposed to the idea that the consideration for the deed consisted of services rendered is a statement of Dr.' Stroud, to the effect that the deceased told him she had never paid claimant anything. It must be remembered that at this time the will was in existence and the deed was in the possession of Bishop Richter. It is evident Dr. Stroud either misunderstood Mrs. McNamara or else Mrs. McNamara misunderstood the effect of making the deed and handing it to Bishop Richter to be delivered after her death.

4. Did the court err in overruling the motion for a new trial because the verdict was inadequate and against the weight of evidence ? In disposing of the case when it was here before, Justice Montgomery used the following language:

“We deem it proper to say, however, that the court should not hesitate to intervene when it is manifest that a jury under the guise of allowing a claim undertakes to distribute an estate in accordance with their ideas of justice.”

It is evident this language was not brought to the notice of the jury, or if it was they gave it no attention. The case made by the record shows that a young woman was taken into a comfortable home of a distant relative, where she was treated as a member of the family, and, in return for her services, was furnished a home, including her board and clothing, and for her services at the end of 18 years, in addition to the home which had been furnished her, she finds herself in possession of a fortune of $17,242. If anyone has just occasion to complain of the result of this litigation, it is not the claimant.

Judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    REBER v. PEARSON.
    Partnership — Agreements—Breach—Injunction.
    Complainants and defendant were engaged in a competing business, and, for the purpose of avoiding such competition, entered into a partnership agreement for a period of five years. The agreement provided that each partner should give his undivided time and attention to the business; that none of the partners should do any act by which the interest of the firm would be imperiled or prejudiced; and that, on terms specified, complainants might purchase the interest of defendant. Subsequently the parties entered into agreements for a sale to complainants of defendant’s interest, and it was agreed that, on complainants’ failure to make payments as provided by such agreement, the sale should be canceled, and defendant charged with the payments made as money advanced from the firm, and he should resume his position as partner under the original agreement; and that the original agreement should remain in force except as expressly modified in the later agreement. Before the end of the term, defendant entered into a competing business, - and complainants filed a bill to enjoin it. Held, that the agreements should be considered as a whole, and that under their terms complainants were entitled to the relief prayed.
    Appeal from Newaygo; Palmer, J.
    Submitted January 12, 1909.
    (Docket No. 65.)
    Decided March 3, 1909.
    Bill by Walter F. Reber and Aaron P. Reber to enjoin Wesley W. Pearson from engaging in business in violation of a partnership agreement. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      John G. Anderson (Hatch & Raymond, of counsel), for complainants.

      E. L. Brooks (George Luton, of counsel), for defendant.
   Moore, J.

The bill in this case was filed for the purpose of enjoining the defendant from engaging in a mercantile business in the village of Fremont, Newaygo county, in violation of a partership agreement entered into between him and the complainants. The bill of complaint was dismissed in the lower court, and the case is brought here by appeal.

The case calls for the construction of a partnership agreement and the agreements contained in two subsequent papers. On the 11th day of January, 1905, Wesley W. Pearson was engaged in the general mercantile business in the village of Fremont, and Walter F. Reber and Aaron P. Reber, doing business under the name of Reber Bros., were also engaged there in the general mercantile business; their stores being on the opposite sides of the main street. On that day these men entered into an agreement for the formation of a partnership composed of said parties for the purpose of carrying on a general mercantile business in the village of Fremont under the name of W. W. Pearson & Reber Bros., said partnership to continue for a period of five years. The agreement in the main was in the usual form of partnership agreements. In the 9th paragraph it was agreed:

“Each of said partners is to give his undivided time and attention to said business, and is to use his utmost endeavors to promote the interests of said firm and is to use his best endeavors to. bring to this firm the good will and patronage of the firms with which they are now connected.”

The 12th paragraph provides for the manner of the division of profits and payment of salaries. Paragraph 13 provides that none of said partners shall “knowingly do any act by which the interest of said partnership shall be imperiled or prejudiced.” The 15th paragraph of said partnership agreement provides that said Walter F. Reber and Aaron P. Reber may purchase the interest of said Wesley W. Pearson at any time by paying to Pearson the amount of his interest in the firm, such interest to be ascertained in the same manner as provided for the annual inventory and accounting.

“ In such event said Wesley W. Pearson agrees to execute and deliver to the remaining partners all necessary conveyances of such interest.”

In pursuance of the agreement just quoted, the parties on the 5th day of June, 1905, entered into an agreement whereby Wesley W. Pearson agreed to sell, and the Rebers agreed to purchase, the interest of Mr. Pearson in the partnership business. This agreement was followed by a third one on the 12th day of March, 1907. In both of the last-named agreements is to be found language of the same import which, so far as it is important, reads as follows:

“Memorandum of agreement, made and entered into this 12th. day of March, A. D. 1907, by and between Wesley W. Pearson, party of the first part, and Walter F. Reber and Aaron P. Reber, parties of the second part, witnesseth: Whereas the above-named parties are at present engaged in business in the village of Fremont, Michigan, as copartners under a certain agreement in writing, dated January 11th, 1905. And, whereas the said parties on the fifth day of June, A. D. 1905, entered into an agreement in writing for the purchase and sale of the interest of said party of the first part in said copartnership, and said last-mentioned agreement is canceled and this agreement is substituted therefor. And whereas, the said parties of the second part have proposed to buy out the interest of the said party of the first part in said copartnership, which is at this time of the amount of eight thousand one hundred and seventy-four and fifty dollars, and said party of the first part has agreed to sell to said parties of the second part his said interest if the conditions hereinafter stated are complied with. It is hereby agreed that if the said parties of the second part shall pay, or cause to be paid, to said party of the first part the said sum of eight thousand one hundred seventy-four and fifty dollars in monthly installments of two hundred and fifty dollars each, payable oh or before the first day of each month beginning on the first day of May, A. D. 1907, until the full sum of three thousand one hundred and seventy-four and fifty dollars is paid, and the sum of five thousand dollars on or before the 11th day of January, A. D. 1910, all with interest at the rate of seven per cent, per annum, payable annually, which said obligations are evidenced by twelve promissory notes of two hundred and fifty dollars each, one promissory note for one hundred seventy-four and dollars, all dated March 12th, 1907, and one promissory note for five thousand dollars, dated June 1st, 1905, the said party of the first part will upon the completion of such payments release all his right, title and interest in and to said copartnership and the property thereof, to said parties of the second part, and in consideration of the payments aforesaid being made as aforesaid said party of the first part waives all right to share in the profits of said copartnership under said copartnership agreement, the interest mentioned in the seventh paragraph thereof and the allowance provided for in the twelfth paragraph thereof. It is further agreed that if for any reason said parties of the second part shall fail to make the payments, or any of them, as aforesaid, the said party of the first part may, at his option, cancel this agreement, and upon notice thereof to said parties of the second part and the return and cancellation of said promissory notes then unpaid, the said copartnership shall thereupon continue as it has heretofore under said original copartnership agreement, and in that case any payments heretofore made under said contract hereby canceled and also under and by virtue of this agreement shall be charged to said party of the first part as money drawn out of the business. It is hereby expressly understood and agreed, that the said copartnership agreement shall remain in force in every particular except as herein modified, and that the rights and liabilities of the said party of the first part as a partner shall continue as heretofore, except as herein expressly changed, and that he shall have access to the books of said copartnership as heretofore, and shall be furnished with monthly statements showing the true condition of the business of said copartnership, and except that said party of the first part shall, during the continuance of this agreement, have no voice in the-management of the business of said copartnership, except to see that the terms of said agreement are not violated, and shall not be obliged to give any of his time and attention to'said copartnership business.”

It is the claim of defendant that the original articles of partnership contemplated a sale by Mr. Pearson to the Reber Bros., that the sale was afterwards consummated, and that Mr. Pearson had a right to engage in a competing business. We quote from the brief of counsel:

44 It is defendant’s contention that, upon the making of the second agreement, a complete sale was made by the defendant to complainants of defendant’s interest in the stock of goods; that this sale was absolute; that this sale was unconditional so far as the transfer of stock was concerned; and that the restrictions contained in this agreement were imposed merely for the protection of the defendant in the way of security for his money. * * * It is elementary law that,
• ‘ ‘ Upon the sale of the good will of the business without more, the vendor is not precluded from setting up a precisely similar business in the vicinity. Upon the authorities, it is settled that, if the purchaser wishes to prevent this step, he must see to it that provisions to that effect are inserted in the written contract.’ 20 Oye. p. 1279.
" * Though a retiring partner may have assigned his interest in the partnership business * * * to his copartner, he may, in the absence of an express agreement to the contrary, engage in the same line of business in the same locality, and in his own name.’ Williams v. Farrand, 88 Mich. 473 (14 L. R. A. 161).”

To understand what was contemplated by the parties, we should notice all the provisions contained in all the agreements. 9 Cyc. p. 579.

It is evident the parties at the outset did not think it well to continue a competing business in the small village when the original articles were entered into. One of the purposes of the partnership was to merge two competing concerns, and thus do away with competition. It is also evident that it was contemplated a sale might be made by Mr. Pearson to the Reber Bros. A sale in fact was made. The terms of that sale were, expressed in the written instruments which were drawn. It is not a case of where one partner sells out his interest in the business, and the transaction is closed. Mr. Pearson did more than merely sell out his interest in the firm. He agreed, in addition to that,

“ That the said copartnership agreement shall remain in force in every particular except as herein modified, and that the rights and liabilities of the said party of the first part as a partner shall continue as heretofore except as herein expressly changed,” etc.

The situation is the same as though the subsequent agreements had themselves contained the provisions that Mr. Pearson would “use his utmost endeavors to promote the interests of the firm,” and that he would “use his best endeavors to bring to the firm the good will and patronage” of the firm with which he had been connected, and that he would not “knowingly do any act by which the interests of said partnership shall be imperiled or prejudiced.” These are the terms of the partnership agreement which Mr. Pearson agreed should remain in full force. It is the same as though he had agreed at the time of selling out that up to the end of the partnership term, which would be January 11, 1910, and all the time the partnership agreement was in force, he would use his utmost endeavors, except to give the business his personal attention, to promote the interests of the firm and to bring to the firm the good will and patronage of the firm with which he had been connected, and that he would not knowingly do any act by which the interests of the partnership should be imperiled or prejudiced.

In Williams v. Farrand, supra, cited by counsel for defendant, the contract as drawn included “the good will attendant upon the business.” This clause was objected to, and was stricken out, so that that was a case where the retiring partner merely sold out his interest without any agreement whatever as to his future attitude or conduct towards the firm. Regarding this contract, the court said:

“He [the retiring partner] does not agree that the benefit derived from his connection with that business shall continue. He does not agree that the old business shall continue to have the benefit of his name, reputation, or service; nor does he guarantee the continuance of that patronage which may have been attracted by his name or reputation. He does not pledge a continuance of conditions.”

All these things Mr. Pearson agreed the firm should continue to have, except the service. It was to have the benefit derived from his connection with the business, the business was to continue to have the benefit of his name and reputation and his liability as a partner. He guaranteed the continuance of that patronage which had been attracted by his name and reputation. It is conceded by counsel for complainant that “the right to engage in business in his own name attaches to the retiring partner, and, unless expressly so agreed, there is no restraint upon that right.” But it is contended that in the case of Mr. Pearson there is “a restraint upon that right.” He cannot engage in a rival business without violating the terms of the partnership agreement which he has expressly agreed should remain in full force.

We think it follows that the continuance of the partnership agreement in force by virtue of the contract left the parties subject to the incidents of the partnership relation. Those incidents would follow from the continuance of that agreement in force. One of those incidents is the disability of Mr. Pearson to engage in a competing business. He retained his right to inspect the books, to have monthly statements showing the condition of the business, his right to know all the secrets of the partnership, his interest as a partner in the partnership property. Under these circumstances, we think it logically follows that he should be restrained from entering into a competing business until by the terms of the agreement it is. ended. See the following authorities: Marshall & Co. v. Johnson, 33 Ga. 500; 5 Wait’s Actions and Defenses, p. 124; Parsons on Partnership (4th Ed.), §§ 54, 59, 150, 153, 168; Story on Partnership (7th Ed.), §§ 211, 212.

The decree is reversed, with costs, and relief prayed for is granted.

Blair, O. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    GRANT v. SICKLESTEEL LUMBER CO.

    Sales — Contracts—Executory Contracts — Assignment.
    To secure payment of his promissory note for $100 given to plaintiff, one F. assigned to plaintiff an invoice of a car load of lumber, then in transit, consigned by F. to defendant, and also delivered to plaintiff a nonnegotiable, unsigned railroad conductor’s receipt, indicating the receipt of the car load of lumber by a railroad company. Of the said assignment of the invoice defendant was notified by plaintiff. The lumber was rejected by the defendant, the consignor notified, and at his request the lumber was unloaded by the consignee and held subject to freight and handling charges, and upon payment of such charges was later turned over to someone indicated by the consignor. The gross invoiced value of the lumber was $342.37, the estimated freight charges $143.50, the net value $198.87. Plaintiff declared upon the common counts in assumpsit and claimed the right to recover the amount of money evidenced by the note upon the ground that by the assignment of the invoice the title to the lumber passed to plaintiff. It is held (1) that an assignment of a money demand to arise only upon performance by the assignor of a contract for the delivery of chattels is not, as matter of law, a sale of the subject-matter of the contract; (2) that the testimony does not support the conclusion that plaintiff bought the lumber in transit; (3) that if the lumber had been accepted the duty of the consignee to pay the net value thereof to plaintiff would be clear; but where, as between the contracting parties, no duty to pay for the lumber ever arose, the assignee of the demand cannot recover, upon the common counts, the contract price of the lumber.
    Error to Wayne; Donovan, J.
    Submitted January 12, 1909.
    (Docket No. 62.)
    Decided March 3, 1909.
    Assumpsit by Lee W. Grant, John B. Carroll, and Pierre B. Kennedy, copartners as Grant, Carroll & Kennedy, against the Sicklesteel Lumber Company for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.
    Clark, Jones & Bryant, for appellants.

      Tarsney & Fitzpatrick, for appellee.
    This suit was begun in justice’s court; the plaintiff declaring on the common counts in assumpsit, “especially as assignee of the Midland Lumber Company, for interest in L. I. & U. car of lumber No. 61823.” Upon appeal to the circuit court a verdict for defendant was directed by the court, and judgment was entered on the verdict. The facts are undisputed, and may be stated in few words: One S. P. Folsom, who did business as the Midland Lumber Company, gave to the plaintiffs his promissory note for $100, dated July 10, 1906, due one day after date. As security he assigned to plaintiffs an invoice of a car load of lumber shipped by the Midland Lumber Company to the defendant and then in transit. He also gave them a nonnegotiable conductor’s receipt, unsigned, showing the receipt by the railroad company, at a station in Missouri, of the car of lumber. The invoice and assignment thereof plaintiffs on July 10,1906, mailed from St. Louis, Mo., to the defendant at Detroit, Mich., with a letter reading:
    “ Gentlemen: We inclose herewith invoice of the Midland Lbr. Co., $198.87, covering car D. 61823, L. S. & M. S., which you will observe has been assigned to us. Will you kindly acknowledge receipt and advise us whether the terms 2 per cent, ten days mean ten days' from the date of invoice, or arrival of car at destination ? We thank you in advance for your courtesy, and inclose stamped envelope for your reply.”
    To this defendant sent the following reply:
    “ Gentlemen: Your favor of the 10th inst. received with assignment of invoice for car' No. 61823, L. S. & M. S., from the Midland Lumber Co. to yourselves. We. will comply with your request therein and will advise further that the terms on our order are 2 per cent, cash discount which means after the arrival and acceptance of lumber.”
    When the lumber arrived defendant refused to accept it and wired Midland Lumber Company to that effect. At the request of the consignor it unloaded the lumber and held it subject to freight and handling charges. In answer to plaintiffs’ letter of July 26th, and by letter of August 3d, defendant notified plaintiffs of these facts. Under date of August 21st plaintiffs wrote, acknowedging receipt of defendant’s letter of August 3d, stating they were informed that under instructions from the Midland Lumber Company defendant had turned the lumber over to some other concern in Detroit, asking the name of the concern, and, as a favor, that defendant give it notice that “this account had been assigned to us.” To this defendant replied that someone with a release from Midland Lumber Company paid the expenses and freight, loaded, and shipped the lumber, and that they did not know to whom it was shipped. The invoiced gross value of the lumber was $342.3?, the estimated freight charges $143.50, the net amount or value assigned being $198.8?. Plaintiffs, in the court below, claimed the right to recover the amount advanced to Folsom with interest.

       Headnote by Ostrander, J.

   Ostrander, J.

(after stating the facts). Plaintiffs advance two propositions. The first one is that the title to the lumber passed, by the assignment of the invoice, to the plaintiffs. The second is that, having been advised by plaintiffs of their rights, the turning the lumber over to someone other than the plaintiffs amounted to an acceptance of the lumber, and liability arises to pay to plaintiffs the contract price. No authority is cited in support of the first proposition. It is said, however, that the account was an executory contract of sale, and its assignment carried with it all the rights under that contract. If the shipment had been accepted, the assignees had the absolute right to the money; and, if the contract had been rescinded, the right to the possession of the lumber.

The mere assignment of a money demand which is to arise only upon the performance of a contract by the assignor is not necessarily and as matter of law a sale of the subject-matter of the contract. Manifestly one might be willing to accept, as security for a loan, the assignment of an invoice of lumber in transit when he would not accept, with the attendant liabilities of freight and other charges, the title to the lumber. The facts do not warrant the conclusion that plaintiffs bought the lumber in transit. They at no time asserted ownership of the lumber. There is no intimation of such a claim in the letter transmitting to defendant the assigned invoice. It appears that, while a letter dated at St. Louis on the 10th of the month is answered at Detroit on the 12th of the same month, an interval of at most three days, the plaintiffs’ reply to the defendant’s letter of August 3d, informing them that the lumber was rejected, and that it was complying with the vendor’s request in unloading it and holding it, was dated August 21st. This reply advises defendant that plaintiffs are informed that under instructions from the vendor they have turned the lumber over to someone else, and it requests defendant to notify the new buyer that the account has been assigned to them. The right of the vendor to control the disposition of the lumber is not questioned.

The lumber was rejected because it was not of the quality which had been ordered. There was a breach of the contract on the part of the vendor, not a rescission on the part of the vendee. If the lumber had been accepted, the duty to pay for it would at once arise, and the plaintiffs’ right to enforce the demand would be undoubted. This because plaintiffs succeeded to the vendor’s right to enforce the demand. But where, as between the contracting parties, no right to enforce the demand ever arose, where the vendee owed to the vendor no duty, express or implied, to pay the demand, it is difficult to understand how an assignee of the demand has, by virtue of his assignment, succeeded to any such right. The correspondence of the plaintiffs and the defendant established no contract relations between them.

"We think there is no theory, supported by the facts, which will permit the plaintiffs to recover, in assumpsit, the contract price of the lumber, or any part of it.

The judgment is affirmed.

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


text:
    FROLICH v. BLACKSTOCK.

    Mechanics’ Liens — Property Exempt — Estates by Entireties.
    A mechanics’ lien cannot be created against land, or the building erected thereon, held by husband and wife by executory contract, as tenants by the entireties, for materials furnished under a building contract made by defendant in which the wife did not join.
    Appeal from Wayne; Donovan, J.
    Submitted January 12, 1909.
    (Docket No. 71.)
    Decided March 3, 1909.
    Bill by Simon Frolich against William H. Blackstock and others to enforce a mechanics’ lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Covert & Berry, for complainant.

      Choate & Webster, for defendants Blackstock.

       Rehearing denied July 15, 1909.

   Ostrander, J.

The bill is filed to enforce a mechanic’s lien upon premises in the city of Detroit. A lien is claimed upon the land, but it is prayed that, if complainant is found not to be entitled to that, the lien may be enforced upon the dwelling separate and apart from the land on which it is erected. To the bill defendants Blackstock demurred. They also entered a plea and filed an answer. There was a replication and demand that testimony be taken in open court. There is no compliance with the rule of this court, which requires the date of the official filing of all pleadings, etc., to be stated in the record. Supreme Court Buie 35 (136 Mich. xxxvii). The printed record does not contain the decree, nor does it appear therefrom that a decree was ever entered. The case appears to have been heard on bill, answer, and proofs, with the result that the bill was dismissed. As we find in the briefs no reference to the pleadings, we conclude that no issue not made by the bill and answer is considered to be of importance. The case may be determined upon undisputed facts. The written contract for the erection of the building — a dwelling house — was made with William H. Blackstock. He has paid the contract price. No one except complainant filed a lien. When the contract for the building was dated, which was May 23, 1906, the premises — land-—were held by William H. and Ellen Blackstock, husband and wife, under an executory contract which so described them. Later, in June, 1906, the vendor made his warranty deed of the premises in which Blackstock and his wife are grantees of the land. Under these circumstances, no lien attached to either the land or the building. McMillan v. Schneider, 147 Mich. 263; Bauer v. Long, 147 Mich. 351. See, also, Scott v. Keeth, 152 Mich. 547, 552.

The decree dismissing the bill is affirmed, with costs to defendants Blackstock.

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