author: Campbell J.

text:
    Pennsylvania Mining Co. v. Samuel P. Brady and others.

      Contract, discharge of. Defendants being indebted to tbe plaintiff's for goods sold and delivered, had given their acceptances for the same, and failed to pay. The parties thereupon made an agreement by which certain copper was to be transferred by the defendants to the plaintiffs, and the proceeds on sale to the amount of 05743.08 retained by the plaintiffs, and the surplus paid to the defendants and the acceptances delivered up. This arrangement was to be in full satisfaction of the debt, except that in case of future ability the defendants were to pay the further sum of 03,500, which was less than the balance of the original indebtedness. Held) that this was a new contract, by which the original indebtedness was wholly discharged.
    A recovery cannot be had for a breach of such new contract in an action on the original cause of action.

      Subsequent ability, evidence of, when relevant. Evidence of subsequent ability could only be relevant under a declaration upon the new contract, and a failure to perform the new contract could not revive the old one.

      Irrelevant testimony, when cause,foi' reversal of judgment. The admission of irrelevant testimony is a cause for reversing the judgment on a bill of exceptions, whenever its tendency would be to embarrass or mislead the jury.

      Objection to testimony. Waiver. The objection to irrelevant testimony may be made at any stage of the cause. There can be no waiver which can make it proper to allow a case to be decided on issues not authorized by the pleadings, and the objection is never too late.
    A motion to exclude from the jury such testimony, contained in a deposition, being overruled, is ground of exception.

      New trial. A decision overruling a motion for a new trial, cannot be reviewed by this Court. — Cuddy v. Major, 12 Mich. 368.

      Heard April 25th, 26th and 27th.

      Decided May 1st.

    Error to Wayne Circuit.
    Tbe facts are stated in the opinion. Judgment was rendered for plaintiff below for I463V.50.

      A. W. Buel & D. C. Holbrook, for plaintiff in error.
    1. The old contract being discharged, the plaintiffs below should have declared upon the special agreement.
    A substituted contract is a valid defense, and this proves the necessity of declaring upon it. — 5 Ham. 375 ; 29 Barb. 156.
    The cross-interrogatory put to the witness Oat, and his answer thereto, should have been excluded from the jury for irrelevancy and incompetency.
    This evidence had no relevancy to, or bearing on the issue; it related to a period of time eight months after commencement of the suit; and it was calculated to confuse and mislead the jury.
    The first rule governing the production of evidence is, that it must correspond with the allegations, and be confined to the issue. — 1 Greenl. Ev. § 51.
    The relevancy of evidence depends on the issue to be tried. 10 Mich. 155.
    As to the time of making objection, it comes in season, if made as in this case, at the close of the testimony, before the arguments of counsel.
    The true princijjle on which irrelevant testimony is to be excluded, is not that one of the parties must or does, object, or that it is excluded in favor of, or against either party, but that it does not relate to the issue, and therefore should not be left to confuse or mislead the jury. It is even the duty of the Court to exclude it, though not objected to by either party.
    We claim the general rule to be that any testimony once introduced and afterwards found to be irrelevant, is subject to be objected to and excluded, on the motion of either party. — 1 Greenl. Ev. § 51 a.

      J. P. Whittemore, for defendant in error.
    1. The performance of the agreement, proved by defendants at the trial, was to be satisfaction of plaintiff’s demand except, in case of ability, or of assets after paying the other debts, the balance of the debt was to be paid. Unless the defendants below showed the plaintiff’s debt discharged, or at least suspended till after suit brought by the agreement relied upon, the debt must remain unaffected by it.
    2. The question to the witness, Oat, was relevant to the issue; as to whether the company was able, and whether it had anything left of the assets on hand, when the agreement which the defendant relied on was made; and to which issue the direct evidence of this witness had been given.
    It was also pertinent to the question, whether the valuation on re-organization was real or nominal, as had just been stated by the witness.
   Campbell J.

Plaintiffs in error were sued upon the common counts for goods, &c., furnished to the Northwest Mining Company, a corporation with which they are admitted to be legally identical ; the old company having become re-organized under a new name. They pleaded the general issue, and gave notice that the account originally existing had been adjusted by a new arrangement, which will be presently referred to.

Upon the trial plaintiffs below gave proof of a claim for goods furnished, amounting on the 19th day of June, 1861, to $9878.28, for which they held the Northwest Company’s five acceptances, payable at different times thereafter.

The defendants below then introduced evidence of an agreement, made June 19th, 1861, whereby it was agreed between the parties that the Northwest Company, which claimed to be insolvent and unable to pay its debts in full, should assign to Brady & Co., (the plaintiffs below,) certain copper which the latter were to receive and sell, and from the proceeds retain $5748.08, and surrender said acceptances, and remit any surplus to said company; that the necessary transfers were made, and Brady & Co. received the copper under the agreement, and this was to be in full satisfaction and payment of said debt; except “that in case the company should have anything left after settling their debts, or was ever able, they would pay the plaintiffs $3500, the amount of loss sustained by S. P. Brady & Co. on the settlement.”

Brady & Co. received and sold the copper, paid over the surplus beyond what was to be retained by them, and gave up the acceptances.

Upon the trial the deposition of one George R. Oat was introduced, and the direct examination tended to prove the re-organization, and what proj>erty the old company held and transferred to the new one. He was asked on cross-examination the following question: “ Give your opinion of the present value of that property ? ” (meaning the mineral lands of the defendant). He answered this by saying that the stock had sold within a week for 30¿ dollars per share, which would make the entire value of the stock $605,000, and that he thought the property worth more than the present value of the stock. Before the case was argued to the jury, the counsel for the defendants below moved to strike out this testimony and exclude it from the jury, which motion Avas denied, and an exception was taken, which is the only exception appearing on the record.

A motion was made for a neAV trial, on several grounds, and the overruling of this motion is assigned as error. It is very well settled that we cannot review such a decision. (Cuddy v. Major, 12 Mich. 368.) The only question which we can consider in the present case is the one presented by the bill of exceptions. The action was brought and judgment was recovered solely upon the original cause of action for goods sold. It is very clear that upon such an issue it could in no way concern the merits of the controversy, whether the parties sued had or had not property of greater or less value. Testimony concerning such property would be entirely irrelevant, but, if there were no other matters under inquiry, would perhaps do no harm. There was, however, in the present suit, evidence before the jury of an agreement whereby the mining company were bound to pay money, in case they should become able, and whereby their liability to pay anything whatever ceased to exist until such ability. This evidence of the value of property was pertinent only to show that such ability existed. If this issue of ability or non-ability could be properly tried under the pleadings, then the testimony was proper. If it could not, then the testimony was improper, because it tended to establish a liability beyond the cause of action declared on. It appears, and is not denied, that the judgment was rendered upon this, or similar proof, and could not have been given without it. .We must therefore determine whether it was properly allowed to go to the jury.

It is claimed by the defendants in error that the agreement of June 19th operated only as a suspension of liability under the original debt, and that upon the mining company’s becoming able to pay the balance, it became due as a part of the existing claim. The plaintiffs in error insist that the new agreement entirely superseded the old one, and that, after June 19th, 1861, if they were ever liable at all, it was to pay the specific sum of $3500, as soon as able, under the contract of that date. We think this latter view is correct. The new agreement in express terms put an end to the old liability. The sum payable on the contingency of future ability was a less sum than the balance remaining after retaining the sum to be raised from the copper, and could not be subject to interest until after a new default to pay when able. The legal effect of this arrangement was beyond doubt to destroy the old debt entirely. It was argued, however, that a failure to perform the new contract revived the old. There is no authority or reason for any such doctrine. When a contract is broken an action lies for the breach, but it affords no ground for rescinding the agreement. And if Brady & Co. desired to recover the $3500, they should have sued upon the new undertaking.

It was claimed that this case was analogous to those where suit is brought on debts which have been renewed after bankruptcy, or after they have become barred under the statute of limitations, and where, after the defense has been set up by-plea, the new promise is sometimes allowed to be introduced under a replication. Those cases are anomalous; but, even under that rule, there must be a new promise to pay the same debt, and it really amounts to no more in substance than an agreement not to set up a statutory defense. The present agreement is in no sense one to pay an existing debt. It is a promise to pay a different amount, and is connected with a transfer of chattels, under an exjjress agreement that the old debt shall be considered satisfied and paid. The original claim having ceased to exist by this arrangement, the proof of the latter was an absolute bar to án action on it; and an attempt to prove in such a suit a liability under any other, entirely independent contract would have been just as pertinent as the proof of the new agreement in question. A declaration on one contract cannot be made out by proof of another, however closely the two may have been connected. ■

"We think the Court erred in allowing proof of this second and substituted liability to go to the jury. And we think, also, that the objection was properly taken. It is not proper to allow irrelevant testimony to be considered, where it can at all tend to embarrass the cause, or mislead the jury; and it should always be excluded from their consideration whenever called to the notice of the judge. There can be no waiver which can make it proper to allow a case to be decided on issues not authorized by the pleadings, and the objection is never too late.

The judgment must be reversed, with costs, and a new trial must be granted.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    John Ball v. Charles H. Stewart and others, and Bernard Courtney v. John Ball.

      Heard April 14th and 20th.

      Decided May 1st.

    Appeal from Kent Circuit in Chancery.
    This case was heard on the original bill and cross-bill. The question involved was as to the priority of a certain mortgage of complainant’s, according to the order of registry.
    Tire decree of the Circuit Court below was affirmed, with costs.
    Martin Ch. J. dissented.

      G. V. N Lothrop and T. B. Church, for complainant.

      T. Romeyn and George Gray, for defendant.
   No questions of law being involved, the opinion is not published.


author: Cooley J.

text:
    Franklin Moore and others v. Detroit Locomotive Works.

      Delivery of property, when, a consideration, for waiver of damages. The delivery of property, manufactured in pursuance of a contract of manufacture and sale, is a sufficient consideration for an agreement on the part of the person so accepting its delivery, to waive any claim for damages on account of the contract not having been fulfilled within the stipulated time.

      Delivery and acceptance, when satisfaction of a contract. A delivery and acceptance under an express agreement to waive all claim for damages on account of a breach of the contract as to time, if the manufacturer would deliver the article manufactured under a previous contract, may be considered as in full satisfaction of the contract.
    The law will not look too closely into such arrangements as the parties themselves choose to consider satisfactory, in the absence of fraud or mistake; but will rather encourage parties to settle their own contracts.

      Agreement to waive damages, when not a consideration. An agreement to waive a claim for damage, after it has fully accrued, nothing remaining to be done, would be without consideration; but it is not thus where something is still to be done, and is only performed in consideration of such waiver.

      Heard April 12th.

      Decided May 1st.

      The action was brought to recover the balance clue for. an engine made, sold and delivered by defendants in error to plaintiffs in error for the sum of $2750, and upon which the sum of $1900 had been paid. The action was assumpsit on the common counts. The plea was general issue with notice of special contract, non-fulfillment by defendants in error, and recoupment by plaintiffs in error. The jury found a verdict for plaintiffs below, (defendants in error,) for the balance of the contract price of the engine and interest, to wit: $947.38.
    The facts are stated in the opinion.

      Maynard & Meddaugh, for plaintiffs in error.
    “ The performance of that which a party was under a previous valid legal obligation to do,” is not a valuable or sufficient obligation. — 1 Pars. on Con. 363 ; 2 Speers, 697; 1 Strobh. 339; 2 Camp. 317; 3 E & B. 559; 10 Iredell, 474; 2 Selden, 369; 15 Geo. 570; 7 Barb. 590; 2 Watts, 424; 14 Id. 607.
    So an agreement to receive less than a party is entitled to by his contract, unless upon some new consideration, is void.— 7 Exch. 319 ; 25 Vt. 396.
    A right of action once vested, can only be destroyed by a release, under seal, or by the receipt of something in satisfaction of the wrong done.-7 Bing. 821; 23 Wend. 306; 7 Ala. 182; 26 Id. 748; 1 Cow. 122; 13 Johns. 87; 3 Penn. 405 ; 32 Id. 258 ; 2 Pars. on Con. 199; Chitty on Con. 764; 28 Conn. 472.
    When the defendants received the engine, they received no more than they were entitled to, before they agreed to waive damages.
    A waiver, before breach, may sometimes operate by way of equitable estoppel, to prevent the strict enforcement of a contract. — 6 Exch. 854.
    But after a breach there cannot be a waiver, without some new consideration. — 11 Ind. 396 ; 1 Hill, 484; 4 Denio, 554; Chitty on Con. 776.

      Moore & Griffin, for defendant in error.
    1. The evidence discloses that neither party, up to the time of the delivery of the engine, insisted on a strict performance of the terms of the contract set up in the plea.
    The defendants below did not make the payments in accordance with its provisions; and the plaintiffs below did not deliver the engine at the time at which defendants below claim they should have done.
    The words “ if in their power so to do,” found in the written contract, mean that plaintiffs below would make all reasonable efforts to complete the engine by February 1st, 1864; reference being had to the contract by them already entered into, and their ability to perform.- — 38 E. L. and Eq. 176.
    Defendants below do not rely upon that contract, but upon a verbal and new contract as to time, and the bill of exceptions shows that the written contract and the alleged verbal contract was, in fact, abandoned, prior to the time in each case at which the engine was to be delivered.
    2. As to the waiver of damages.
    The waiver was in the nature of a settlement of disputes; it prevented litigation with respect to this question of damages ; it was a mutual compromise, and can be sustained on this ground.
    The prevention of litigation is not only a sufficient, but .a highly favored consideration. — 1 Pars. on Con. 364.
    It may be considered in the nature of a forbearance to bring suit; a party may waive a legal right. — Id. 369.
    Whether he has done so is a question for the jury. — 2 Allen, 82.
    There is no pretense that any consideration, other than that arising out of the original transaction is necessary.—29 Conn. 82; 11 Iowa, 565 ; 22 Ill. 446; 11 Rich. S. C. 267; 7 Cush. 516; 17 Me. 34; 16 Id. 77.
    Even strict performance of the condition of a bond may be 'waived by parol, as,by enlarging the time. — 7 Conn. 47.

      In this case the plaintiffs below had been unable to procure the engine to be built as soon as they desired. It had been completed at great loss to them. When completed, they were at liberty to deliver or respond in such damages for nondelivery, as defendants below might be entitled to recover.
    The defendants below could waive the contract also; and if plaintiffs below afterwards went on and delivered the engine, on the faith of the new promise that defendants below would waive damages, or which is the same thing, would pay the value of the engine, there is nothing in the law which prevents them from relinquishing the contract, and proceeding on the new agreement. — 9 Pick. 298; 3 Penn. 445.
    Such new agreement may, by its terms, or legitimate implication, dispose of any right of action arising under previous contract. — 10 Ind. 282; 19 Pick. 349; 14 Johns. 329; 28 Vt. 264; 7 Ark. 123.
    Moore, acting on behalf of plaintiffs in error, was frequently at the shop of defendants in error, after the 1 st of March, while the work was in progress, urging it on. By so doing, plaintiffs in error must be held to have acquiesced in the delay, and estopped themselves from claiming damages therefor.— 24 Ill. 268.
   Cooley J.

Suit being brought by defendants in error to recover the value of a steam engine made and delivered to Moore, Smith & Co., the latter seek to recoup from the contract price damages alleged to have-been sustained by them, in consequence of a failure to complete and deliver it at the time agreed. The ruling of the Court below had the effect to exclude this defense; and the only question before us is as to the correctness of that ruling.

The contract for the engine was in writing, and bore date December 16, 1863. The locomotive works agreed to make and deliver the engine on or before the first day of February then next, if in their power so to do; and Moore, Smith & Co. agreed to pay therefor IZ'ISO, as follows; one-fourth on the signing of the contract, one-half on delivery, and a note at thirty days from that time, with interest for the remaining fourth.

Moore, Smith & Co. claimed on the trial, that sometime before the first of February, a new'verbal contract was made, modifying the written contract, as to the time of completion, and that thereby the locomotive works made an absolute agreement to complete the engine by the first of March, or by the first boat to Saginaw, to which place it was to be shipped. It was not, however, completed and delivered until the first of June. Moore, some three or four weeks after the second contract, called on the defendants in error 'to see how the work was progressing, and was informed by Lothrop, the Superintendent, that no progress had been made, and that government work occupied the whole time and power of the shop. Lothrop said he had written to Buffalo, Cleveland and Toledo to get assistance, but the shops at those places were all busy, and all the shops in Detroit were busy also, and he could get no help from any of them. Moore himself made some effort to get help at Wayne and Robinson’s, but was unsuccessful. He called quite frequently to see about the work, and was informed that the locomotive works were doing all they could, and would complete the engine as soon as they could. Moore, Smith & Co. were very anxious to get the engine, and on its delivery to them made no objection to receiving it on account of delay, and no claim for damages.

Plaintiffs (below) gave evidence tending to show that no time was fixed by the oral agreement, within which the engine should be completed and ready for delivery; and also that at the time it was delivered, they expressly stated to Moore, Smith & Co. that they should not deliver it, unless the latter would waive all damages on account of its non-delivery before; that Moore, Smith & Co. were anxious to obtain the engine, and, in consideration of its delivery, did waive all claim for such damages. The Circuit Judge charged the jury that if there was such a waiver as was claimed, the locomotive works were entitled to recover the contract price.

If the oral agreement as to time was as claimed by plaintiffs in error, it is probable that at the time when delivery was made, they had a valid claim against the Locomotive works for damages sustained in consequence of the delay. It appears, however, that they had not strictly performed the contract on their part; for the first payment was made forty days after it was due, and neither that, nor the second was as much as was agreed. But as the first payment was received without objection, so far as the case shows, and it does not appear that full payment of the second was insisted upon at the time the engine was delivered, their failure to fulfill cannot be considered material in the case; except as it may have a bearing upon the alleged waiver of damages.

It was argued for the plaintiffs in error that the naked question presented by the case was, whether, where one waives a valid claim for damages on the sole consideration of the delivery to him of that to which he was legally entitled before, such a waiver can bar an action for damages. In this case, however, it must be borne in mind that the engine had not yet become the property of Moore, Smith & Co., and would not, under the contract, until delivery. They were entitled to an engine, but not this particular engine. If the plaintiffs in error are correct in their version of the oral contract, the position of the parties at the time the engine was completed was this: The Locomotive works had failed to fulfill their contract according to agreement, and were liable to Moore, Smith & Co. for such damages as the latter could show they had sustained. But they might, at their option, deliver the engine if Moore, Smith & Co. would receive it, and thereby greatly reduce the damages. Whether, the one course or the other would be the better for them, if Moore, Smith & Co. insisted upon damages being paid, might depend very much upon whether the prices of labor and materials had changed essentially since the contract was made. At any rate, however unjust it might have been for them to refuse to deliver the engine after it was completed, there can be no doubt that they had at this time the option to refuse to perform the contract, altogether, and submit to the consequent damages, if they thought that course less detrimental to their interests, than to perform the contract, so far as was then possible, and then pay damages for the breach already existing. It would seem from the evidence given by them, that they' elected to retain the engine and take the consequences, unless Moore, Smith & Co. would accept it in full satisfaction of the contract.

There are several cases which hold that where a party abandons a contract, and the other party promises that if he will go on and complete it, a further compensation shall be made beyond what was originally agreed, such promise is based upon sufficient consideration, and may be enforced. In Munroe v. Perkins, 9 Pick. 305, the jjlaintiff had agreed by deed to erect a building for defendants. Finding his contract a losing one, he had concluded to abandon it, but resumed work on the oral promise of the defendants that, if he would do so, they would pay him Avhat the work was worth, without regard to the contract. The Court say that whether the parol promise was without consideration “ depends entirely on the question whether the first contract was waived. The plaintiff having refused to perform that contract, as he might do, subjecting himself to such damages as the other parties might show they were entitled to recover, he afterwards went on, on the faith of the new promise, and finished the work. This was a sufficient consideration. If defendants were willing to accept his relinquishment of the old contract, and proceed on a new agreement, the law, we think, would not prevent it.”

In Lattimore v. Harsen, 14 Johns. 330, the plaintiffs had entered into an agreement under seal, to perform certain work under a jmnalty, and were afterwards released by defendant, by parol, from a further performance under the agreement, he promising them that if they would go on and complete the work, he would pay them for their labor by the day. The Court held, that as the plaintiffs might have released themselves from the agreement by incurring the penalty, there was a sufficient consideration for the promise of the defendant, and that plaintiff's might recover under the substituted agreement.

The case of Coyner v. Lynds, 10 Ind. 282, follows, and is based upon the two above quoted.

In Lawrence v. Davey, 28 Vt. 264, there was a contract to deliver coal at specified times and rates. A portion of it was delivered, and plaintiff then informed defendant that he could not deliver at those rates, and if the latter intended to take advantage of it, he should not deliver any more; and that he should deliver no more unless the defendant would pay for the coal independent of the contract. The defendant agreed to do so, and the coal was delivered. On suit being brought for the price, the Court say: “Although the promise to waive the contract was after some portion of the coal sought to be recovered for had been delivered, and so delivered that probably the plaintiff, if defendant had insisted upon strict performance of the contract, could not have recovered anything for it, yet nevertheless, the agreement to waive the contract, and the promise, and above all, the delivery of coal after this agreement to waive the contract, and upon the faith of it, will be a sufficient consideration to bind the defendant to pay for the coal already received.”

Each of these cases is to the point now in issue before us. It is true that in each the abandonment of the contract by the plaintiff was before very much had been done under it, and on the claim that the bargain was a hard one upon him. But neither of these circumstances can distinguish the cases from the present. An unprofitable contract is not, by that circumstance, made any the less binding on the promissor; and the promisee has the same right, and the same power to discharge a contract in consideration of a new promise, after breach as before. A different case would be presented if the plaintiffs below had relied upon an agreement to waive the damages made after delivery; for in that case nothing would have remained for them to do or to promise which could be a consideration for the waiver. But here, although they had done the work which enabled them to deliver the engine, they refused altogether, according to their statement, to go further, except under the substituted agreement; so that the plaintiffs in error actually received the property under the promise which they now insist is invalid. If they regarded it for their interest at the time to make the arrangement, and have obtained the property under it, it is not in our power now to set it aside on the ground of their being entitled to just as much under the contract, before existing. They knew their legal rights at the time, and must be supposed to have consulted their own interests in entering into the new arrangement.

Thez-e is another view to be taken of the present case, which brings us to the same conclusion. The receipt of the engine by Moore, Smith & Co., under a promise to waive all damages, was in effect receiving it under an agreement to accept it in satisfaction of the contract. This is what the parties must have understood by the arrangement, if it was actually made. We have already seen that, if the contract was what the plaintiffs in error claim, neither party had complied strictly with its terms. The Locomotive Works claimed that they 'had been doing all that was possible to that end, and Moore, Smith & Co., instead of electing to terminate the contract, and sue for damages, had been urging them to complete it as speedily as possible. Their doing this might not amount to a legal waiver as to time; but as parties do not usually sue for a failure to perform by the day, where a faithful attempt has been made to do so, unless serious loss has resulted, the circumstance was well calculated to induce the Locomotive Works to believe that the engine was to be accepted in satisfaction of the contract when completed. And the real question here is not. so much, as it seezns to us, whether there was any consideration for the waiver of a legal right by the plaintiffs in error, as whether, according to the understanding of the parties, at the time when delivery was made, the contract has been performed.

It will be remembered that by the written contract the Locomotive Works fixed no time for the delivery of the engine, but were to make it on or before the first of February, if in their power so to do. They still insist, and gave some evidence to show, that they had never made the promise more definite. There is no claim that the contract was not fully performed in every particular, except in point of time. If, now, the jury were satisfied that Moore, Smith & Co. consented to receive the engine in satisfaction of the contract, after the time for delivery had passed, we think the acceptance just as much binding upon them as if they had consented to receive it in time, waiving some defect in material or finish which was fully brought to their notice. It is not the policy of the law to look too closely into such arrangements, and to insist upon a strict and literal compliance with the terms of a contract, when the party interested has elected to accept a substantial compliance, as ample and satisfactory. On the other hand, parties are to be encouraged to settle their contracts for themselves; and the Courts are not to interfere with their settlements in the absence of mistake or fraud.

The case, as submitted to the jury, substantially required them to find that the plaintiffs in error had accepted the engine in satisfaction of the contract; and the jury having so found, the judgment should be affirmed.

The other Justices concurred.


text:
    Alexander T. Campau v. The City of Detroit.

      Charter of Detroit. Opening streets. A resolution for the opening of a street can properly require an apportionment of the damages among the premises benefilted only in those cases in which such apportionment can be made under the Charter. But in the case of opening a street the Charter expressly provides that the damages shall be payable out of the City Treasury, and the means therefor raised with the general city taxes.

      Service of notice of the resolution. The Charter requires the notice tobe served “as soon as practicable,” and return to be made at least six days before the time appointed for hearing. The resolution in this case was adopted August 8th, the hearing was fixed for September 18th, and the notice was served on the last of the parties September 9th. The return appearing to be made within the time required, and nothing appearing to show that an earlier notice was practicable, it was held that no question of law could arise in respect to it.

      Constitutional law. Section 2 of Art. 18 of the Constitution requires a jury of twelve freeholders to determine the necessity of taking private property for public use, and the compensation therefor; and Section 15 of Art. 15 requires a jury in all cases where property is taken for public improvements in cities and villages. In 1859 an addition was made to Section 2 of Art. 18, exempting “ the action of commissioners of highways” from its operation. Held, that this amendment cannot be held to include the municipal authorities of cities under the designation of “highway commissioners.” The amendment designates certain officers, and it is not to be extended, by construction, to others on the ground, simply, that the duties performed by them are analogous.

      An act providing for a jury of six void. Waiver. The Legislature of 1865 enacted an amendment to the Charter of the City of Detroit, by reducing the number of jurors to be summoned in a street-opening case to twelve, and the number to be sworn as jurors to six. These amendments were held to be unconstitutional and void; and in the present case, the Common Council having treated them as void, and acted upon the original provisions of the Charter, their action was sustained by the Court.
    The parties cannot be held to waive the objection to a jury of six by not objecting; the provision is one for taking private property in invitum, and if it has no validity for that purpose, it cannot be important to consider whether the parties might consent to such a proceeding.

      Sections constituting apart of oneporoceeding construed together. It was contended that sections 5 and 6, as amended, may stand, even if the provision for a jury of six is unconstitutional, since they provide for summoning twelve persons, and would be consistent with other provisions by which the whole number should be required to serve on the jury. Held, that these different provisions relate to the same subject matter, and provide the successive steps to be taken in perfecting a single proceeding, and must therefore stand together. — Groesbeck v. Seeley, 13 Mich. 329.

      Depeal, not effected by an unconstitutional provision. Although the amendments cover the ground of the former provisions of the Charter, and there is at the conclusion of the amendatory act, which contains many other provisions, a clause repealing all acts and-parts of acts inconsistent with its provisions, any portion of this latter act which is unconstitutional and void must be considered as a nullity, and cannot, therefore, on the ground of inconsistency, repeal any part of the former law. Nothing can come in conflict with a nullity.

      Repeal. Legislative intent. It is competent for tlie legislature, in tlie same act, to repeal any former one within its purview, although every other provision in the repealing act was unconstitutional. The question is one of legislative intent, ancl it is only requisite that words should he used which show an intent to repeal, irrespective of the unconstitutional portions. In this case, it is not claimed that the repeal is accomplished without making use of the void provisions for the purpose.

      Heard April 25th.

      Decided May 1st.
    This was a common law certiorari to the Recorder’s Court of Detroit, to remove the proceedings connected with the opening and extending of Russell street, in the City of Detroit, to this Court.
    The folloAving facts were agreed upon, as being the only ones necessary to present the questions to be raised:
    The plaintiff is one of the heirs of Joseph Campau, deceased; the owners in fee of the property. The other heirs have declined to join in the writ, and it is prosecuted by him individually.
    On the 8th of August, 1865, the Common Council passed a resolution in the words following, to wit:
    “ Russell Street. — Resolution for opening and extending Russell street.
    Be it resolved by the Common Council of the City of Detroit, State of Michigan, that it is necessary to make the following public improvement, to wit: To open and extend Russell street, in the Sixth Ward of said city, northerly from its present northerly terminus, until it reaches the northerly limits of said city. .
    And the said Common Council do hereby declare, that they intend to take and use for the purpose of making said improvement, all that part of fractional section thirty-two, town one, south of range twelve east, lying southerly of the northerly limits of the said City of Detroit, and embraced within the easterly and westerly lines of Russell street, if the same be extended from its present terminus on a course north, twenty-six degrees west, sixty feet wide.
    And the said Common Council do further declare, that they will, on the third Monday in the month of September, in the year of our Lord one thousand eight hundred and sixty-five, at the hour of nine o’clock in the forenoon of that day, apply to the Recorder’s Court, at the court room of said court in said city, for the drawing and empanneling of a jury to ascertain the necessity for using the property above described, as intended to be taken and used for the purpose of making said improvement, and to ascertain the just damages and compensation to which any person may be entitled if said improvement be made.
    And the City Clerk of said city is hereby directed to cause this resolution to be published for four successive weeks before said third Monday of September, A. D. 1865, in The Detroit Daily Dree Press, the official daily newspaper of said city, and the Detroit Daily Advertiser and Tribune, another daily newspaper published in said city. And the Superintendent of Police of said city is hereby directed, by himself, or by one of the Captains or Sergeants of Police under his direction, to serve notices of this resolution on the persons, and in the manner prescribed in section three, of chapter seven, of the Charter of said city.”
    The resolution was adopted August 8th, 1865, and approved . August 15th, 1865.
    This resolution was published in the newspapers, and for the period required by the Charter.
    The time for appearing in the Recorder’s Court and drawing the jury was fixed for the third Monday of September, 1865, being the 18th day of the month. As it appears by the return of the Sergeant of Police, the notices were served upon the persons who were described as the heirs of said Joseph Campau; on some, on the seventh, on some, on the eighth, and on some, (including the plaintiff,) on the ninth day of .September, 1865.
    The names of twenty-four freeholders were written down, as qualified to serve as jurymen, and were approved by the Court, and from these, twelve jurymen were selected and sworn, and acted.
    The proceedings in the Recorder’s Court are entitled, “ In the matter of opening Russell street.” The damages found by the jury therein acting, as aforesaid, being in amount $107, were tendered to said heirs, respectively.
    The report of the jury was filed on the second day of December, 1865, and was confirmed by said Recorder’s Court.

      T. JRomeyn, for plaintiff in error.
    The Court; on the return of this writ, has full power to review all legal questions decided by the inferior tribunal which affects rights of property. It is not confined to questions of jurisdiction.— 9 Mich. 111.
    The plaintiff in error has not-appeared in the proceedings. He has done nothing to waive his right to object to the jurisdiction of the Recorder’s Court, or the constitutionality of its mode of procedure.
    1. The proceedings in the Recorder’s Court were void, for the want of the requisite resolution of the Common Council, and for the corresponding defect in the published notice.— Charter, §§ 2 and 3, Ch. 7.
    There was no resolution to apportion and assess the damages. This is a fundamental and jurisdictional defect. The resolution was the foundation of the jurisdiction of the Court, and if it were substantially defective, the Court never acquired jurisdiction, and the proceedings are void. — 2 Doug. Mich. 506, and cases there cited; 12 N. Y. 575.
    2. This is a special proceeding, not according to the course of the common law, and the mode of exercising the' jurisdiction, as prescribed by the statute, must be substantially pursued, or the Court loses its authority to act, although it might have once acquired jurisdiction over'the subject matter.
    The notice was not served until the ninth day of September. The law requires it to be done as soon as practicable. —Sec. 3 of Chapter 7. No reason for this delay is shown.
    3. There is no law authorizing the assessment of the damages by a jury of twelve persons. It will not be denied that the right to take private property for public uses can be exercised only by the Legislature, and in sucb mode as the legislative authority may prescribe. — 2 Kent's Com., 339, 340, and notes.

    The charter of the city provided for this being done by a jury of twelve persons, in regard to opening streets.— Chapter VII, L. of 1857, p. 119.
    The Legislature having provided this specific mode, saw fit in 1865 to alter it, substituting six jurors for twelve, and declaring that “ all acts and parts of acts inconsistent with the provisions of this act are repealed.” — L. of 1865, p. 680 to 683.
    4. Conceding, for the present, that the Legislature had no right (under sec. 2 of art. 18 of the Constitution), to provide for taking private property for public use by the verdict of less than twelve jurors, yet they had a clear right to repeal the former law.
    This they have done, and so far their action is valid. The result is that there is no valid mode provided for the compulsory taking of property in the circumstances of this case.
    A party may waive the constitutional right to a jury of twelve persons, (1st Abbott's Dig. p. 641, § 25), and so far, the act of 1865 may be carried into effect. The remedy for this state of things rests with the Legislature, and not with the Courts. If the Legislature intended to repeal their former enactment, so far their action is valid. If they failed to substitute valid provisions, so far their action cannot be enforced. — 1 Mich. 118 ; 3 A. K. Marsh, 70.

    5. But it is not conceded that the Legislature had no constitutional right to make this change, because,

      a. The second section of article 18 of the Constitution was amended in 1859, (L. of 1859, p. 1102), declaring that it should not apply to highway commissioners in the official discharge of their duties as such.

      b. In cities and villages the coiporate authorities represent highway commissioners. — L. of 1858, p. 38, &c. And this is in accordance with the Charter of Detroit.— Ch. VII.

      c. Under this constitutional amendment the duties and powers of highway commissioners have been greatly changed. —L. of 1861, 256; L. of 1865, 654.

      d. It is submitted that, according to received principles of constitutional construction, this simplification of the system of opening streets may properly be applied to city authorities, acting as highway commissioners, and exercising the duties of such officers. — 5 Mich. 257.
    This view is strengthened by the fact, that there is no necessity, in the absence of positive constitutional enactment, to compel the Legislature in this class of cases to use a jury of twelve men.

      Wm. Gray, for defendant in error.
    1. It is contended that the resolution of the Council did not state that the jury were to apportion and assess the damages &c., upon the lots benefitted.
    No assessment could be made upon lots benefitted by the opening of a street. The damages caused by such opening are paid by the city out of a general fund raised for that purpose.— Chart. § 11, p. 74.
    In the case of alleys, it is different. In these cases the damages are assessed upon and paid by the adjacent lots.— Chart. § 12, p. 75.
    Section two, relied upon by plaintiff in error, refers back to section one, which refers to the opening of both streets and alleys. In the case of an alley, the clause is properly inserted, as the "jury do, in fact, assess &c.; but it would be simply absurd to insert it in the case of a street, when the jury could not assess. The clause in question was intended to apply only to alleys.
    2. The notices were served six days previous to the time appointed for the hearing, and this complies with the Charter. —§ 3, p. 71.
    3. The jurors were drawn in compliance with the Charter, as revised in 1861. — §§ 5, 6, 9.

      In 1865 these sections were amended, by striking out the words “ twenty-four ” and “ twelve,” and inserting the words “twelve” and “six.” The sections, thus amended, were re-enacted. — L. of 1865, p. 680 and 681.
    This act reads as an amendatory one, and embraces other legal and valid amendments to the charter. The last section of the act is {p. 683): “All acts and parts of acts inconsistent with the provisions of this act are hereby repealed.”
    It is quite clear that the intent of the amendments to said sections 5, 6 and 9, was to reduce the number of jurors one-half, and thus reduce the expense of street openings. It is equally clear that such an amendment was unconstitutional.— See Const. Art. 18, § 2.
    The sole question arising under this point is, were the original sections repealed by this act, or, the amendments being unconstitutional and void, does the act of 1865 stand as if these amendments were not therein contained?

      a. It is perfectly evident that the intent was merely to amend, and not to absolute repeal.

      b. The Legislature could not be presumed to intend a law which, failing, would annul the power to open streets; and the intent must govern.

      o. A law may have some constitutional and some unconstitutional sections, and in such case, if they can be separated, the former are 'disregarded, and the latter enforced. In such case, the law is to be construed as if the unconstitutional sections never were inserted. In the present case, the constitutional provisions of 1861 were not repealed by the act of 1865, with unconstitutional amendments. — 2 Blackf. 10; 3 R. I. 33, 64; 2 Iowa, 165; 10 Mich. 250, 253; 1 Doug. Mich. 123.

      cl. A general repealing clause in an act containing unconstitutional provisions does not repeal the prior law which is inconsistent or in conflict with the unconstitutional provision, for the act is to be construed as if it did not contain the unconstitutional provision.—6 Wis. 605, 615; 3 Gray, 476; 26 Ala. 165, 170; 19 Cal. 513, 22 U. S. Dig. 121, § 6; 11 Wis. 51; 2 Parker's Crim. R. 329.

      e. Where the constitutional and unconstitutional provisions are so connected, as to warrant the belief that the Legislature would not enact the former alone, both fall. — 2 Gray, 84; 13 Wis. 404.
    Under the Michigan constitution the sole mode of amendment is by re-enacting the entire act or section as amended, and hence the act of 1865 must be construed, as if it merely amended by striking out twelve jurors, and inserting six jurors.
   Cooley J.

We do not think the resolution of the Common Council for the opening of Russell Street, is open to the objection made to it. The resolution can properly require an apportionment of the damages among the premises benefitted, only in those cases in which such apportionment can actually be made under the Charter. But in the case of opening a street the Charter expressly provides that the damages shall be payable out of the city treasury, and the means therefor raised with the general city taxes.— Charter, ch. 7, § 11.

Nor can the proceedings be held void because notice of the resolution was not served earlier. The resolution was adopted August 8th, and the hearing fixed for September 18th. Notice was served on the last of the parties September 9th. The Charter requires it to be served “ as soon as practicable,” and return to be made at least six days before the time appointed for the hearing. There is nothing before us to show that an earlier notice was practicable in this case, and no question of law can therefore arise in respect to it. The return appears to have been made within the time required. The principle question in the case is, whether there is now any provision of law under which streets can be opened in the City of Detroit. The question arises upon legislation which is supposed to be unconstitutional. The Constitution, Art. 18, § 2, requires that “ when private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders, or by commissioners, etc.” Another section requires a jury in all'cases where property is taken for public improvements in cities and villages. Art. 15, § 15. An addition was made to this section, 2 of Art. 18, by amendment submitted to the people by the Legislature of 185 9, which exempted “ the action of commissioners of highways, in the official discharge of their duty as highway commissioners,” from its operation. This amendment cannot be held to include the municijjal authorities of cities under the designation of “ highway commissioners.” The amendment plainly refers to the officers designated elseAvhere in the constitution and statutes by that name, and Ave are not warranted in extending it to include-other officers or authorities on the ground, simply, that the duties performed by them are analogous. The question under the Constitution is therefore the same since the amendment, as before.

The Charter of 1857, oh. 7, §§ 5 and 6, required the summoning of twenty-four persons in these cases, of whom twelve should be sworn as jurors. — § 9. But the Legislature of 1865 attempted to amend these three sections by reducing the number to be summoned to twelve, and the number to be SAVorn as jurors to six. The Common Council have treated these amendments as void. It is suggested for the plaintiff in error that they may all be sustained, on the ground that parties may waive their constitutional right to a jury of tAyelve, and whenever they do so, the verdict of six Avill be valid; but the provision is one for the taking of private property in invitum, and if it has no Aridity for that purpose, it cannot be important to consider whether parties might not laAvfully consent that their property be taken in. the mode which it undertook to establish. We think the Common Council correct in treating the provision for a jury of six as unconstitutional.

But it is further argued that sections five and six, as amended, may stand, even if the provision for a jury of six is unconstitutional; since those sections provide for summoning twelve persons, and would be consistent with other provisions by which the whole number should be required to serve on the jury. Whether the amended sections five and six, can stand by themselves, if the ninth fails, must depend upon whether by the amendatory law it is apparent that the Legislature intended them as inseparable parts of the same system, mutually dependent upon each other. Of this we think there is not the least doubt. The former provisions required the summoning of twice the number to be sworn, and the only change here made is in reducing the number of each one half. A single section of the Act of 1865 attempts to amend all three of these; and we know of no principle which would warrant us in selecting out portions of the section to stand unaffected by the constitutional infirmity of the remainder, Avhen all parts relate to the same subject matter, and provide the successive steps to be taken in perfecting a single proceeding. — See Quinlon v. Rogers, 12 Mich. 168; Groesbeck v. Seeley, 13 Id. 329.

It only remains to consider whether the amendatory section being found invalid, the original provisions remain in force.

The Act of 1865 contained many other provisions, the validity of which is not disputed, so far as we are informed; and the last section repeals all acts and parts of acts inconsistent Avith its provisions. The plaintiff in error contends that, even if the sections which relate to a jury are invalid, the last section must still have the effect to repeal the original sections.

If the repealing clause had in express terms repealed certain acts and parts of acts byname, and the act had then gone further, and attempted to substitute unconstitutional provisions, the argument which has been made would be more plausible than it seems to us now. But the repealing clause here in question is distributive in its application to each section of the act, and neither in words, nor in apparent design undertakes to repeal any acts or parts of acts, except those which would come in conflict with the provisions it attempts to substitute. The repeal was simply to displace all conflicting provisions, so that these could have full effect. But nothing can come in conflict with a nullity, and nothing is therefore repealed by this act on the ground solely of its being inconsistent with a section of this law which is entirely unconstitutional and void.—Sullivan v. Adams, 3 Gray, 476; Shepardson v. Milwaukee and Beloit R. R. Co., 6 Wis. 605 ; State v. Judge of County Court, 11 Id. 50 ; Tims v. State, 26 Ala. 165.

The case of Ely v. Thompson, 3 A. K. Marsh, 70, is too blindly reported to enable us to determine whether it conflicts with the cases cited, and we have not the statute there in question before us, so that we may see in what terms the repeal was made; but if the decision is what is claimed for it, it stands by itself, and we are unable to yield it our assent. But as reported it does not necessarily go to that extent; and we quite agree with the learned Judge that it is competent for the Legislature in the same act to repeal any former one within its purview, although every other provision in the repealing act was unconstitutional. The question is one of legislative 'intent, and it is only requisite that words should be used which show an intent to repeal, irrespective of the unconstitutional portions. In this case it is not claimed that the repeal is accomplished without making use' of the void provisions for the purpose.

We are therefore satisfied that the provisions for juries as they stood before the Act of 1865, remain unaffected by that act, and the proceedings must be affirmed.

The other Justices concurred.


author: Campbell J. Martin C. J.

text:
    Porter Vinton v. Horace B. Peck.

      Bote made on Sunday. Bona fide holder. A note actually made on Sunday, "but dated on Monday, for tbe purpose of giving it credit, is not necessarily void. The statute has not declared that notes made contrary to the Sunday law, shall be void under all circumstances. Their invalidity is only to be implied from the prohibition of Sunday business, and under such a statute a dona fide holder is protected.
    And where steps are taken to induce a, belief that a note was not made on Sunday, the party so doing would not be allowed to assert* his own fraud, in his defense. •

      JForgery. Testimony of experts. The defendant alleged that the note was in fact for, eight dollars, and had been altered to eighty. A witness who had been a conveyancer for twenty-five years testified that the note was genuine. He was then asked, whether, in his opinion the word eight had been altered to eighty since its execution. Held, that this was competent and proper to go to the jury, to aid them in forming their opinion.

      Comparison of handwritings. Witnesses may be allowed to compare the writing in question with the appeal bond on file in the same case, admitted to be signed by the defendant, or with any other writing legitimately introduced into the case under the issue, in order to judge of the genuineness of the writing to be proved, v This kind of evidence must often bo quite as satisfactory as the very small amount of knowledge of the party’s handwriting, necessary to render a witness competent to testify to his opinion of the genuineness of a signature, in the usual ■jnaimer of giving such opinions.

      Comparison limited. The rule has been inflexibly settled, that disputed papers, which do not belong in the cause, and are not involved in the issue, cannot have their genuineness made a question of inquiry, and cannot therefore be made a basis of comparison, for either witness or jury. Such comparison as is allowed may • be made by the jury for themselves. But they can better do it, generally, with the aid of experts, than without,
    The defendant offered to prove that a note to one Gould was signed and given to him by the defendant, and that both this and the one sued upon were executed at his house at about the same time. Held, that this was not admissible, as it raised an issue as to the genuineness of the note to Gould, which was entirely foreign to the issue in the case, and was within the excluding rules above stated.

      Who is an expert? A witness was offered to prove that Gould’s note was not written with the same ink with the note in suit. He was shown to have been a writing-master and book-keeper of considerable experience, but was rejected because it had not been shown that he was an expert in regard to color. Held, that any experience in using pen and ink would qualify a person of ordinary capacity to form an admissible opinion concerning such identity, although it might be of very small weight in doubtful circumstances. It stands on the same footing with other inquiries concerning handwriting. But as that note was inadmissible, the exclusion of the testimony worked no injury.
    The holder having purchased the note of a party employed by the original parties to negotiate it, at less than its face, is not the less a dona fide holder, on that account, and is entitled to recover the full amount.

      Heard April 3d and 4th.

      Decided May 5th.

      Error to Kalamazoo Circuit.
    This suit was brought by Horace B. Peck as indorsee against Porter Vinton, as maker of a negotiable promissory note.
    It appears that the note was post dated; that it was in fact executed by Porter Vinton, and delivered to the payee, Z. H. Bullard, on the first day of June, 1862, which was Sunday, at which time it y^as dated June 2d, 1862. That it was without consideration between the maker and payee, being given for the accommodation of the payee, to enable him, by negotiating it to raise money thereon. That on Monday, June 2d, the day the note bears date, it was indorsed in blank by the payee, Z. H. Bullard, and sold and delivered to the plaintiff below, Horace B. Peck, for the sum of $77. That said plaintiff had no notice of its character, either that it was an accommodation note, or that it was executed on Sunday, but received it in good faith, supposing it to be business paper, and actually executed on the day it purported to be.
    The note was admitted in evidence under objection, and judgment for principal and interest rendered for plaintiff below.

      Stuart & Fdwards, and JET. F. Severens, for plaintiff in error.
    1. The making and delivery of a promissory note on Sunday is void. — 1 Comp. L. § 1514.
    The statute takes away the legal capacity of the maker to make such an instrument on Sunday. — 12 Mich. 378.

    Proof of the making of the note is essential to enable an endorser to recover; and this discloses that the maker was legally incapable of making the note on that day. And it is a rule that a bona fide holder is not protected against the defense of incapacity however created. — 1 Pars. Notes and Bills, 275.

      9. There is no estoppel here. In order to create one, the representation relied upon to establish it must be extrinsic to the paper itself; otherwise no defense, whether of fraud, want of capacity, duress, gaming or usury, could be interposed when the note purported to be valid on its face. This cannot be insisted on. — 13 N. Y. 599-638; 22 Id. 342; 4 Duer, 408.
    3. The plaintiff in this case is not a bona fide indorsee, within the meaning- of the law of merchants, and therefore, not protected by its peculiar rules; for,

      a. He did not take the note at its face, but for a less sum.— 16 Barb. 548; 7 Allen, 407.

      b. Being accommodation paper lent by defendant to Bullard, it first became legally operative in plaintiff’s hands.— 10 Gray, 349; 7 Allen, 407; 2 Denio. 621; 22 N. Y. 312; 1 Kern. 368; 1 Hill, 9; 8 Cow. 669; 36 Barb. 585.
    The date of a note is of no consequence, except for the purpose of determining the time of payment; and the time of delivery may always be shown.
    4. The Court erred in permitting the witnesses to make a comparison of handwriting, and stating their conclusions to the jury.
    The great majority of the cases are against allowing any witness to make a comparison of the handwriting of the signature in question, with other admitted signatures, and then giving an opinion upon the genuineness of the one in dispute, but have generally allowed the jury to make the comparison by contrasting the disputed signature with that of any other documents relevant to the issue already in the case. This is the well established rule in England. — 2 Phil. Ev. (Cow. & H. notes) 615-6 and n. 2 and 483 ; 5 A. & E. 514-703; Roscoe Crim. Ev. 163; 2 Starkie Ev. 374, note h. (6th Am. ed.); Peake Ev. 155 (5th ed.)

    And it is likewise the rule in nearly all the States. — 7 Pet. 763; 1 Denio. 343; 13 Barb. 42; 1 Penn. 161; 26 Id. 388; 8 Gill. 77; 1 Iredell, 16; 2 Ala. 703; 5 Id. 547; 13 B. Mon. 258; 21 Ill. 375; 15 Ind. 271.

      J. C. Burrows, for defendant in error.
    1. The Court below did not err in allowing the note to be introduced in evidence under the objection that it was void, and therefore immaterial. For a promissory note, executed and delivered to the payee on Sunday, is not void in the hands of an indorsee who receives it without notice of its infirmity.— Story on Prom. Notes, §§ 191, 192, 193 ; 2 Hill, 499; 6 Wend. 615; 3 Gray, 215; 9 Id. 329; 19 N. H. 423; 4 Mass. 156; 3 B. & C. 233.
    2. The Court below did not err in charging the jury that the defendant was precluded from setting- up as a defense that the note was made on Sunday, by having- issued the same as made on a legal day.
    The plaintiff below bought the note in good faith, having-no notice of its fraudulent dating. Defendant cannot take advantage of his own wrong.
    3. The plaintiff being a bona fide purchaser, was entitled to recover of the maker the face of the note and the interest.— Story on Prom. Notes, § 194; Edw. on Bills and Notes, 315 ; 3 Esp. 46; 1 Id. 261; 13 Johns. 52; 16 Pet. 1-24; 5 Allen, 330.
   Campbell J.

Peck sued Vinton upon a promissory note, dated June 2d, 1862, and payable three months after date to the order of Z. H. Bullard, who endorsed it to Peck. Bullard testified that the note was made for his accommodation on Sunday, June 1st, and delivered to him, and that on Monday he endorsed it and put it into the hands of an agent, one Alley, to negotiate. Upon offering to read the note in evidence, it was objected to, because made on Sunday. The Court admitted it in evidence, and Vinton excepted.

We do not think the objection well founded. This note bore upon its face a legal date, which was placed upon it for the express purpose of obtaining credit for it as a lawful instrument; and it would certainly be valid in the hands of a bona fide holder. The statute has not declared that notes made contrary to the Sunday law, shall be void under all circumstances. Their invalidity is only to be implied from the prohibition of Sunday business, and under such a statute, a bona fide holder is protected.' — Rockwell v. Charles, 2 Hill, 499; Vallett v. Parker, 6 Wend. 615. And, apart from this rule, where steps are taken to induce a belief that a note was not made on Sunday, we should not be prepared to hold that a party could assert his own fraud, in his defence.

Yinton, upon the trial, set up in defence that the note was either altered or forged, claiming he gave no note for more than eight dollars, whereas the note sued on was for eighty. One George T. Clark was called for Peck, and swore that he had been a Conveyancer and Notary Public for twenty-five years, and was familiar with Yinton’s handwriting, and that the note was genuine. He was then asked whether, in his opinion, the word eight had been altered to eighty since its execution. This was objected to, and the objection overruled, and an exception taken. He stated that he thought it had not been altered, and on cross-examination stated the “ y” could not have been added, because of its relation to other letters. This testimony was proper. The witness was engaged in a business which would be quite apt to familiarize him with all the ordinary appearances of writings, and the addition of a letter, after a document has been finished, is so generally adapted to give it a peculiar and recognizable appearance, that no great amount of experience would be necessary to detect it in ordinary cases. The value of a witness’s belief must depend upon circumstances, but it is proper to go to the jury like other questions upon the genuineness of writings. It is very true that the jury may examine the paper for themselves, and that opinions are not usually admissible where the jury can form their own conclusions unaided. But we do not think it would be safe in this country to adopt a rule which assumes such a degree of knowledge and skill among jurors. Even reasonably expert writers may obtain valuable aid from opinions on such questions, and as neither law nor custom requires our juries to meet any standard of education, we think that to exclude such aid would lead to absurd results. The most enlightened courts have availed themselves of such assistance, and we deem it wise to use it in all cases where it is at hand. It can do no harm, at all events, and must often be indispensable to justice.

It is also assigned as error that several witnesses were allowed to compare the note in suit with the appeal bond and affidavit on file in the cause, which were admitted to be signed by Yinton. It is claimed that they were not shown to be experts. In proving handwriting in general there is no rule which requires any particular amount of skill in the witness. Any one who has had the proper facilities, and who can swear to a knowledge of the handwriting in question, has always been admitted. There are undoubtedly questions jiresented at times, which require greater skill than others, but such cases stand on their own grounds. It is a matter of common experience that all persons who can write at all can attain some familiarity with the handwriting of others, and we can find no test which would be at all practicable, except that of leaving their skill and capacity to be determined by the jury who hear them examined.

A more serious question is, whether the comparison here resorted to was admissible at all. It has veiy commonly been said that a witness must obtain his knowledge of handwriting by seeing the party write, or from papers in his own possession which he knows to be genuine, by recognition, or dealing mutually had on their credit. Proof by comparison of hands on the trial has not always been deemed competent, and there are many authorities which deny its admissibility at all. Upon a subject which has been so much discussed, and upon which there is so wide a variance of opinion, we think the safest course is to satisfy ourselves concerning the principles involved, and frame our conclusions accordingly.

It has never been required that a witness should have seen any particular number of specimens or acts of handwriting. On the contrary, seeing a person write once, has been held sufficient.— Garrells v. Alexander, 4 Esp. 37; Doe v. Suckermore, 5 A. and E. 733, (Patterson J.); Willman v. Worrall, 8 C. and P. 380. In Burr v. Harper, Holt's N. P. 420, a witness had seen the person write but once, and had forgotten how the signature appeared, but was allowed to compare the signature in question with the paper in his possession, and then to swear to his opinion. In Smith v. Sainsbury, 5 C. and P. 196, a witness was allowed to swear to an opinion of handwriting, formed from seeing a single affidavit used by counsel in making a motion in the cause, without any other knowledge of its genuineness. In Lewis v. Sapio, Mo. and M. 39, Lord Tenterden allowed proof of an entire signature by a witness who had seen the party sign his last name several times, but who had never seen his initials or full name written, and he censured Lord Ellenborough for deciding in Powell v. Ford, 2 Stark, 164, that once seeing the last name written did not qualify the witness to SAvear to the full signature.

This small amount of knoAvledge being all that is requisite in a witness, it becomes a serious matter of inquiry why a recollection from a former comparison, or from a former notice of writings, where there may have been no special reason for making a critical examination, should be considered better than a recent and careful scrutiny.

In the case of ancient documents proof by comparison has always been permitted, although the comparison can only be made by proving the genuineness of papers not involved in the cause. Doe v. Tarver, Ry. and M. 141. The right to establish handAvriting by comparison in other cases has been denied on two grounds ; first, because the specimens for comparison may be unfairly selected, and second, because proof of the genuineness of the specimens would raise collateral issues which would cumber the case, and which the party could not be supposed to be ready to meet. Accordingly the rule has been inflexibly, and we think justly settled, that disputed papers which do not belong in the cause, and are not involved in the issue, cannot have their genuineness made a question of inquiry in the cause, and cannot therefore be made a basis of comparison for either witnesses or jury. — Doe v. Newton, 5 Ad. and El. 514; Griffits v. Ivery, 11 Id. 322; Hughes v. Rogers, 8 M. and W. 123; Bromage v. Rice, 7 C. and P. 548. There is one English case in which the Court of Queen’s Bench was equally divided upon the question whether, after an attesting witness had in Ms testimony stated several specimens of his signature (including his attestation) to be genuine, an expert might be allowed to compare them all (relevant as well as irrelevant) to ascertain whether the attestation was genuine. The course of the discussion on the bench elicited the most complete investigation of the various methods of proving handwriting which is to be found in the books, and while it seems dangerous to allow comparison by disputed documents and signatures, the reasons for allowing it among those not disputed are very forcibly set forth,' — Doe v. Suckermore, 5 A. and E. 733. Where papers are already in the case, it is held almost if not quite universally, that the jury may make the comparison for themselves. 1 Greenl. Ev. § 578. Mr. Greenleaf gives it as his opinion that this comparison may be made with or without the aid of experts. In Doe v. Newton, (before cited,) it is said that the Court should enter into this inquiry with the jury, but it is doubtful whether it was meant to intimate that witnesses should be examined for that purpose. The general English rule would seem to be that the jury must form their own opinions from the comparison. And the English authorities agree in saying that the objection that a jury may be illiterate cannot now have any weight. But it cannot be denied that, even among intelligent men, there is much difference in regard to the cajjacity of forming an accurate judgment by comparison, while all persons who can read and write can form some sort of an opinion. Experts can certainly aid a jury very much in these inquiries, and, if any are admitted, the degree of their skill cannot he nicely measured. But, as we have already remarked, we think the presumption cannot safely be raised that all jurors here can be qualified to form opinions for themselves upon questions of handwriting; and while, if capable, they may properly make comparison, it is safer and better, we think, to make sure that they receive such light as is accessible.

Where, as in the present case, the papers used as means of ' comparison are a part of the records in the cause, and undisputed, it is held by the authorities cited that the jury can compare them, and that a witness may also use them, to form an opinion concerning handwriting;- — -and no objection can arise on the ground that they can have been specially selected as a standard. We should feel disposed to say — had not the doctrine become almost venerable from much repetition — that there is nothing in ordinary experience which could lead any one to suppose that a person cannot form a better judgment of resemblances in writing from having the'specimens before him, than from any mere effort of memory. And we feel constrained to hold that a comparison of hands by witnesses, where there is an undisputed standard in the cause, or where documents are fairly before the jury upon the issues, is allowable.

The deposition of one Aretas Gould was offered in evidence, the object of it being to prove that on the same day on which the note in question was said to have been executed, Vinton signed and gave Gould a note written with the same pen and ink, and that both, of the genuine notes were executed at his house at about the same time. The Court, upon objection, refused to permit this to be read, because it would tend to raise a collateral issue. Vinton then offered, in connection with it, to show that he gave Gould on that occasion a note signed with the same pen and ink with which whatever note he gave Bullard was signed. The Court then admitted the deposition to be read for that purpose. As this was the only purpose for which it could have any pertinency at all, we do not perceive what occasion he had to complain of the restriction to that use. We think it should have been excluded altogether, as it raised a necessary issue on the genuineness of the note to Gould, which was entirely foreign to the issue in the case, and is within the excluding rules already referred to.

A witness was offered to prove that Gould’s note was not written with the same ink with the note in suit. He was shown to have been a writing-master and book-keeper of considerable experience, but was rejected because it had not been shown he was an expert in regard to color. We think any 'experience in using pen and ink would qualify a person of ordinary capacity to form an admissible opinion, concerning such identity, although it might be of very small weight under doubtful circumstances. It stands upon the same footing with other inquiries concerning handwriting. But as the Gould note was not admisible as a subject of comparison, the rejection of the testimony cannot be regarded as error.

The Court instructed the jury, if the note was genuine, to find a verdict for its full amount, although purchased at a discount. We think there is no error in this. The maker of a note has no concern with the amount paid for it by a bona fide purchaser.

There is no error in the judgment, and it must be affirmed.

Christiancy and Cooley JJ. concurred.

Martin C. J.

The Circuit Judge was correct in overruling the objection of the plaintiff in error to the reading of the note to the jury, and in his charge respecting its validity, and of the right of Peck to recover upon it. It is true that the note was made upon Sunday the first of June, but it was dated as of Monday the second. Whether as between the maker and payee this fact, that the note was made upon Sunday, would render it void, it is not necessary to consider. No such question arises in this case, and no principle which would affect or control in such a case, would govern this. This note was not made upon any consideration passing from the payee to the maker, or to satisfy any existing liability, nor was it in fact a contract between the parties. The case shows that it was accommodation paper lent by Vinton to one Bullard, to be thrown upon the market for sale or discount for Bullard’s benefit. Ou the day of its date it w*as discounted or purchased by Peck, and as argued by the counsel for Vinton, it first became legally operative in his hands. It is not claimed or pretended that Peck knew or suspected that the note was made upon Sunday, or upon any other day than that which its date indicated, or knew anything of its origin or the design of the parties to it in making it.

It would be a most extraordinary, as well as inequitable rule, which would require Peek under the circumstances attending the offer of the note to him, to make inquiries respecting the genuineness of its date, or to be made a loser by an illegal or fraudulent transaction in which he had no participation. The date of the note is conclusive upon Vinton and upon every principle of law, and of equity, he is estopped to deny that it is the true date, or to insist upon the invalidity of the paper.

I can discover nothing in this case which shows that Peck is not a bona fide endorsee of the note, and entitled to protection as such. The fact that he purchased the note for some three dollars less than its face, does not, in my opinion, make him any the less such, or in any degree affect his rights as endorsee, and upon what principle a contrary doctrine can be held, is to me incomprehensible. The note was made for the market, and' negotiated accordingly, and purchased by Peck as such-. This is obvious from the fact, that one Alley was employed to dispose of it, or as he says, get it discounted. The transaction then was not usurious, nothing more than a fair purchase of paper offered for sale, and taken by Peck on the best terms he could make, it is to be supposed. -Is there anything wrong in this ? He had no negotiation with Bullard or Vinton, and what he did, was done, so far as appears, in the way 'of purchase and sale with Alley. For aught that appears he may have thought the note belonged to Alley, and was offered by him for sale as his property, and purchased as such. He was therefore entitled to all that he purchased, and the Circuit Judge committed no error in charging to that effect. (See cases cited by defendant in error.)

The exceptions taken to the rulings of the Circuit Judge, upon the admission of testimony to prove the signature of Vinton genuine, may all be disposed of together. The excej)tion taken by the plaintiff in error is, substantially, that “the Comt erred in permitting the witnesses to make a comparison of handwritings, and state their conclusions to the jury,” and if permitted, by none but experts. This is a subject upon which much diversity of opinion exists in the courts of the different states, as will be seen by a perusal of Prof. Green-leaf’s excellent and exhaustive discussion of this question. (See 1 Greenl. Ev. §§ 576—581, 10th ed.) It seems hardly proper that after so exhaustive a discussion of this question, in a text-book, presumed to be within every lawyers reach, we should do more than adopt such a rule, as we think most consonant to, and best adapted to our system of jurisprudence. Under our system parties can be sworn, and there is no possible way of sustaining or controverting the statements of the defendant, except by the testimony of persons who witnessed the execution of the instrument, or those who are competent to compare it with others admitted to be genuine, (so as to prevent the occurrence of a collateral issue), or to allow the jury to make the comparison from papers admitted to be genuine. I think that comparison of handwritings by a witness, or by the jury, are equally competent. The presumption of incompetency in a jury is, I trust, exploded, and any business man, of whatever calling, who is in the habit of correspondence or of examining writing, or under whose eye it continually comes, is an expert and competent witness. Either to allow the jury, or experts, to make this comparison, or both, is within the discretion of the Court — to be exercised according- to the peculiar circumstances of the case. (See Greenleaf supra.) Testimony was introduced upon both sides upon the questions of forgery of signature, and of the alteration of the note. These questions were left to the- jury, and we cannot disturb the verdict.

The judgment must be affirmed, with costs.


author: Martin Ch. J.

text:
    William Boullion v. Elisha C. Litchfield.
    Case brought up for review of facts affirmed on the evidence by a majority of the Court; the Chief Justice declining to review the testimony.
    This was a case made after judgment to obtain a review of the questions of fact. The case was tried in the Saginaw Circuit Court, and came up for review on the entire evidence. No questions of law were involved.

      Heard April 27th.

      Decided May 5th.

      Wm. H. Sweet and C. I. Walher, for plaintiff.

      Webber & Smith, and A. Pond, for defendant.
   Martin Ch. J.

I am satisfied that the judgment in this case is correct; but I am not inclined to discuss the facts of the case. I have on another occasion protested against cases of this kind being entertained by us. I still adhere to that opinion. If a jury is waived below, we cannot be made such. I think we have erred in entertaining- jurisdiction of such cases. The statute (Comp. L. § 3436 and seq.) requires a special finding, upon which, in my opinion, only exceptions can be taken, or a case made; never upon a general finding in the nature of a general verdict. The whole idea suggested is that this Court is to inquire into questions specially raised, and not to act as an appellate court. (§8438).

I think the judgment should be affirmed, with costs.

Cooley, Campbell and Christiancy JJ. Avere of opinion that the judgment was correct upon the facts, and were for affirmance on that ground.


text:
    Theron A. Flower and another v. Daniel C. Kellum.

      Heard May 3d.

      Decided May 5th.

    Error to Oakland Circuit.

      A. C. Baldwin, for plaintiff.
    No one appeared for defendant.
   This was an action of assumpsit originally commenced before a Justice of the Peace. It Avas taken to the Circuit Court by appeal, and there dismissed on motion of defendant, for the reason that no revenue stamps Avere affixed either to any of the certificates made by the justice, or upon entering the appeal in the Circuit Court.

The appeal having been taken before any act of Congress required appeal papers to be stamped, the dismissal was held to be erroneous, and judgment reversed, with costs, and the cause remanded for trial.