author: Hooker, J. Grant, J.

text:
    MORGAN v. NOWLIN.
    Sale — Action for Price — Defenses—Fraud—Waiver. '
    One who purchases stock in a corporation, giving the note of a third person, indorsed by him, in payment, and holds the stock for two years without raising the claim that he was defrauded in the sale, during which time he participates actively in the affairs of the corporation, indorses several notes in renewal of the one originally given, and finally unites with the other stockholders in selling the corporate property and dividing the proceeds, of which he receives his share, must be held, in an action on the last renewal note, to have waived any defense thereto based upon the fraudulent representations of the seller.
    Error to Wayne; Waite, J.
    Submitted June 8, 1900.
    Decided March 26, 1901.

      Assumpsit by Benjamin B. Morgan against Allen L. Nowlin and James T. Hurst upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant Nowlin brings error.
    Affirmed.

      J. H. Cole (Harrison Geer, of counsel), for appellant.

      Maybury & Lucking, for appellee.
   Hooker, J.

On December 31, 1894, a corporation called the Morgan Signal Company was organized. Subsequently Nowlin purchased from the plaintiff 2-12 of its stock, giving in payment therefor $400 in cash, and a note made by one Hurst for $2,000, indorsed by Nowlin. This note was renewed several times. Nowlin entered actively into the business of the company, which continued over two years. At the end of that time he united with other members of the company in a sale of the property, for which $2,000 was received. The interest on the note was paid from time to time, also $200 of the principal. An action having been brought upon the renewal note, Hurst made no defense; but Nowlin filed a plea of the general issue, accompanying it by a notice alleging that there was. fraud in the sale, in representations made which the defendant afterwards learned were false, and that “defendant has never received a dollar in profits out of said corporation, and has received no consideration whatever for the $2,400 invested by him in said corporation at the instigation of the plaintiff.” Upon the trial the circuit judge directed a verdict for the plaintiff, and error is brought by defendant Nowlin.

By no stretch of imagination can this notice be called one in recoupment. It does not mention recoupment, nor is there a word indicating a claim for damages. It simply alleges that there was no consideration for the price paid for the stock. The uncontradicted testimony shows that there was a valuable consideration. The company had patents and property, and it was afterwards sold for $2,000 with the approval of Nowlin. It is manifest, therefore, that the defense of want of consideration failed.

If, as defendant claims, he was defrauded in such sale, he had his choice of two courses: He might, when he discovered the fraud, rescind the contract and tender back what he had received, and this would give him the right to sue for and recover the price paid, or successfully defend an action for the price; or he might keep the property, and sue for or recoup the damages suffered, — a resort to one or the other remedy depending upon whether he had paid for the stock or not. There is no claim that the defendant has attempted to comply with the law as to rescission. Aside from the question whether he has not voluntarily affirmed the contract, by neglecting to give notice of rescission and return the property after discovery of the fraud, he has sold the property of the company and received the money for it. One cannot retain the property or its avails, and then sue for the balance, though he may perhaps retain it and sue for or recoup the damages in a> proper proceeding. Tiff. Justice’s Guide, 704, 275. Were there a notice of recoupment in this case, such a defense might be made here; but there is not, and the injustice of permitting defendant to set up the fraud as a complete defense to the note, and at the same time keep the property, is obvious. Were this case here upon a notice of recoupment, it would then become important to inquire whether the claim for damages has been waived, as it may have been. Wildey v. School District, 25 Mich. 419. But the question of damages is not in the case. Neither is rescission. And the alleged want of consideration is clearly disproved by all of the testimony.

The judgment should be affirmed.

Moore, J., concurred with Hooker, J.

Grant, J.

(concurring). I think the court below made a correct disposal of this case, for the reasons stated in its instructions to the jury. It is very doubtful if defendant Nowlin was deceived by any representations which were made to him. He testified that the stock had been offered to him a year before he bought, that he talked with different parties before he bought, that he saw one of the signals in operation in Ypsilanti before he bought, and that, the last he knew of it, it was' operating all right. He purchased the stock, and gave the note of Mr. Hurst, indorsed by himself, in part payment therefor, in the spring of 1896. He soon after became a director, and afterwards president. The note was several times renewed, and interest and part of the principal paid. In one portion of his testimony he testified:

“I was simply sold stock there on certain representations that they had a fair prospect of going on and doing business, and that we would do it, which I found after-wards was not the facts at all; and, even when we came to make a little assessment, you couldn’t get the company to put up a dollar for an assessment. I wanted to assess the various stockholders, and get a fund to manufacture some of these very bells. I wanted them to put in money to manufacture the bells. I have found out since that they weren’t the best. I wanted to make an assessment as late as December, 1897, nearly two years after I bought in there. I think, if the thing had been pushed, there might have been some money pulled out. I’ll be candid about that. But when you get into a stock company, and they all lay down on you, and won’t even pay an assessment, you may as well give it away. When they sold all they could, then they wanted to give it away. It might have been a success if it had been pushed. We might have been able to sell some of it, even if it wasn’t the best in the world.” ■

If any false representations were made, he very soon found them out. But he made no protest or objection to the renewal of the note or payment of interest and part of the principal upon that ground. This course of conduct was continued for more than two* years. He set up no such defense until suit was brought and his amended plea filed. There was no total failure of consideration. The patents were of value, and several disinterested railroad men testified that the signals worked well. It was his own opinion that, if the business had been properly pushed and managed, it would have been a success, but the stockholders became discouraged and would not pay assessments. The whole property was then sold out by vote of the directors, of whom defendant was one, and the proceeds divided among the stockholders, of which he received his share. The facts were undisputed, and the question of waiver, therefore, became a question of law for the court to determine. There was no agreement between the plaintiff and defendant to sue Hurst alone until just before this suit was brought, about three years after the purchase.

Some stress seems to be laid upon the testimony of the defendant that when he indorsed the renewal notes he did not agree with the plaintiff to pay them, or any part of them. This means only that nothing was said about payment. There was no occasion to say anything. His contract was one to pay. The important fact is that he treated his obligation as a binding one, and made no claim that either the original or any of the renewals were not valid, or that he had anye defense to them. I think the case is ruled by Western Electric Co. v. Hart, 103 Mich. 477 (61 N. W. 867), and cases there cited.

Montgomery, C. J., and Long, J., concurred with Grant, J.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
      In re WRISLEY.
    Courts — Jurisdiction—Res Adjudioata.

      A wife instituted suit against her husband in Kalamazoo county for divorce. He subsequently brought suit for divorce against her in Charlevoix county. To that suit she interposed a plea in abatement, setting up her suit pending in the Kalamazoo circuit court. The Charlevoix circuit court entered a decree overruling the plea in abatement. From that decree she took no appeal. Held, that the Charlevoix circuit court had jurisdiction to determine the question, that it was res adjudioata, and cannot be raised in a collateral proceeding.

      Habeas corpus proceedings by Anna P. Doyle to determine the right to the custody of Gladys Wrisley, an infant.
    Submitted December 4, 1900.
    Writ dismissed March 26, 1901.
    The following is a concise 'statement of facts, taken from the brief of the attorneys for the petitioner:
    “Anna P. Wrisley and Prank Wrisley were married at Cheboygan in June, 1891. In August, 1892, Gladys Wrisley was born. In October, 1894, Anna Wrisley separated from her husband because of the extreme cruelty of her husband, and because of his failure, being of sufficient ability so to do, to support and maintain herself and child. Anna P. Wrisley moved to the city of Kalamazoo, and in 1895 filed her bill of complaint in the circuit court for the county of Kalamazoo, in chancery, for divorce. She employed R. G. Smith as her solicitor. On March 15, 1895, she filed her bill of complaint. She communicated to her solicitor the residence of her husband. A subpoena in the usual form was issued. It was not served, but the solicitor made a return himself upon the back of it that it could not be served, because he could not find the defendant. The solicitor then prepared an affidavit for an order of publication for the defendant’s appearance, on the ground that process could not be served because of defendant’s continued absence from his place of residence. The order was made on the 22d of April, 1895, by a circuit court commissioner, and published according to its exigency. On filing proof of publication and of the nonappearance of the defendant, the bill of complaint was taken as confessed. Proofs were taken before a commissioner. On September M, 1895, a final decree was entered, granting to the complainant a divorce, and awarding the custody of the child, Gladys, to her until said child, Gladys, shall attain the age of li years.
    “In November, 1897, Mrs. Wrisley, acting upon the supposition that her divorce ■ was in every respect legal, married William G. Doyle, of the city of Kalamazoo, and bore unto him two children, who are now living. Gladys Wrisley remained with her mother and in the family of Mr. Doyle, being supported wholly by her mother, Mr. Doyle, and her grandmother, until the summer of 1899, when she went to Petoskey with her grandmother. While at Petoskey, Prank Wrisley persuaded the grandmother to allow him to take the child home with him to Charlevoix to visit for a week, promising to return her at the end of that time in order that she might go back to Kalamazoo and enter school. He had contributed nothing towards her support and maintenance from the time of her infancy down to this date. He failed to return the child as he had agreed, and the grandmother, Mrs. Emma Blair, went to Charlevoix and took her into her possession. Por this Prank Wrisley had her arrested for abduction. The charge, however, was substantially dismissed. Prank Wrisley then filed a bill of complaint in the circuit court for the county of Charlevoix, in chancery, to obtain a decree of divorce from his wife on tbe ground of extreme cruelty, and obtained an ex parte order at chambers from the judge of that court, awarding him the custody of Gladys during the pendency of the suit. He then filed a petition in the circuit court for the ■county of Kalamazoo, in chancery, to obtain an order setting aside the decree for divorce entered in favor of Mrs. Wrisley, on the ground that the court had no jurisdiction of the cause, mainly because no process had been served on him, and the order for publication and his appearance was a nullity. After the hearing the court set the decree aside. The court on the same day made an order placing the child, Gladys, in the custody of Mrs. Wrisley during the pendency of the suit, holding that it had primary jurisdiction, and that the circuit court for the county of Charlevoix had not jurisdiction. The court also ordered a writ of subpoena to issue in the case, in the usual form, directed to the defendant, Frank Wrisley. This subpoena was served upon him personally. An application was then made for temporary alimony in behalf of Mrs. Wrisley. This order was granted. The defendant, Frank Wrisley, refused to comply with the order to pay complainant temporary alimony, or to place the child, Gladys Wrisley, in her custody. An application was then made to the circuit court for an order putting him in contempt. The court found he was in contempt, and ordered the issuing of attachment.
    “In the meantime Mrs. Wrisley filed a plea in abatement in the circuit court for the county of Charlevoix, in chancery, upon the ground that the circuit court for the county of Kalamazoo, in chancery, had sole jurisdiction of the controversy. The plea was overruled. The bill of complaint was then taken as confessed, and on the 21st day of August, 1900, the circuit court for the county of Charlevoix, in chancery, granted a decree of divorce to Frank Wrisley, and awarded him the custody of the child, Gladys, until she shall attain the age of 14 years. Subsequently Gladys was taken, under the authority of Frank Wrisley, to Ypsilanti by his mother, Mrs. Sophia Wrisley, with whom she is now residing at Ypsilanti. Frank Wrisley did not appear in answer to the subpoena served ■upon him in the cause pending in the circuit court for the county of Kalamazoo, in chancery, and the bill of complaint in that cause was taken as confessed by him. On November 8, 1900, a final decree was entered by the circuit court for the county of Kalamazoo, in chancery, granting to Anna P. Wrisley a divorce, with the custody of the child, Gladys Wrisley.”

      Osborn, Mills & Master, for petitioner.

      Robert W. Kane, for respondent (Sophia Wrisley.)

       Head-note by Grant, J.

   Grant, J.

We have here two decrees, in one of which Mr. Wrisley obtained a divorce from his wife, and in the other of which she obtains a divorce from him, and each is awarded the custody of their child, Gladys. He appeared specially in the suit brought by his wife in the Kalamazoo circuit court, and moved to set aside the decree on the ground that the court had no jurisdiction to render it. The motion was granted, and the decree set aside. At the same time that court, considering that it had the power to retain the suit and to issue an alias subpoena upon the original bill, retained jurisdiction, issued an alias subpoena, and granted an order giving the custody of the child, during the pendency of the suit, to her. He paid no further attention to that suit, but proceeded with his own in Charlevoix county. She, insisting that the Charlevoix court had no right to proceed, because of the pendency of hep suit in the Kalamazoo circuit, brought for the same cause of action against the same party, appeared in the suit in Charlevoix county, and entered a plea in abatement, setting up the suit pending in the Kalamazoo circuit court. The cix’cuit court for Charlevoix county decided that issue against her, held that it had jurisdiction of the case, and that the ■ Kalamazoo circuit did not have jurisdiction. Had she not interposed this plea in abatement, a question would arise that we need not now discuss. She voluntarily submitted the question of jurisdiction to the circuit court for the county of Charlevoix. It had the power to pass upon it. It did so, and the decree of that court is binding upon both the parties until reversed by an appellate court. The question is res adjudieata, and she cannot raise it in a collateral proceeding. Peters v. Youngs, 122 Mich. 484 (81 N. W. 263); 1 Black, Judgm. § 274; Elliott v. Peirsol's Lessee, 1 Pet. 328. The language of this court in Palmer v. Oakley, 2 Doug., at page 475 (47 Am. Dec. 57), sustains this view. We must therefore hold that Mr. Wrisley is entitled to the custody of the child under the decree in the circuit court for the county of Charlevoix. Should he not be a proper person to have the care, custody, and education of the child, that question can be determined in another proceeding.

The writ is dismissed, and the child remanded to the custody of Mr. Wrisley.

The other Justices concurred.


text:
    COMMISSIONER OF RAILROADS v. WABASH RAILROAD CO.
    Railroads — Passenger Rates — Interstate Commerce.

       Under Act No. 90, Pub. Acts 1891, providing for fixing the rates for transportation of passengers upon railroads, it is competent for the railroad commissioner, in fixing such rates, to inolude in the computation the amount of .the interstate fares earned by that portion of the road lying within this State.

      Certiorari to Wayne; Frazer, Waite, and .Carpenter, JJ.

      Mandamus by Chase S. Osborn, commissioner of railroads, to compel the Wabash Railroad Company to reduce its passenger rates. From an order denying the writ, relator brought certiorari.

    On April 24,1900, the Supreme Court entered judgment for relator, but subsequently permitted respondent to amend its answer.
    Submitted on the amended answer June 19, 1900.
    Former opinion affirmed March 26, 1901.

      Horace M. Oren, Attorney General, for relator.

      Alfred Bussell, for respondent.

       Head-note by Grant, J.

   Grant, J.

In the former decision of this case (123 Mich. 669, 82 N. W. 526) we declined to pass upon the federal question, because the record did not show what proportionate part of the receipts from passenger fares was through or interstate fares. The respondent thereupon made application for leave to amend its answer so as to show this fact. On account of the importance of the case, this motion was granted on June 19, 19Q0, and the answer was amended as follows :

“Respondent shows that the amount of interstate fares earned in Michigan during the period covered by said report, and included in the computation, would reduce its passenger earnings below $3,000 per mile.”

It was further ordered that the case be submitted for decision upon the federal question thus presented by the amended answer and proofs thereunder, which consisted of an affidavit by the auditor of the company.

I was aware that an amended answer was permitted, • but was not aware of the precise form of the order entered, or that it required an additional opinion on the part of the court. The application was not for a rehearing, nor was a rehearing ordered. I supposed the opinion would stand with the federal question included by the amendment of the record, about which there might have been some doubt without such amendment. It was only three days ago that I learned that the parties were waiting for a further opinion in this case. I must, however, assume the responsibility for the delay, as under the order it devolved upon me to examine the question, and write whatever opinion was necessary.

In Louisville, etc., R. Co. v. Railroad Commission of Tennessee, 19 Fed. 679, the law was held void for various reasons. The law attempted a direct interference with the rates of interstate commerce. This was held to Re beyond the power of the State. The case distinctly recognizes the right to regulate the rates for domestic -transportation. In Wabash, etc., R. Co. v. Illinois, 118 U. S. 557 (7 Sup. Ct. 4), the attempt was the same, and the court held that regulation between points within the State was valid, but transportation between the States was national in character, and its regulation confined exclusively to Congress. In Carton & Co. v. Railroad Co., 59 Iowa, 148 (13 N. W. 67, 44 Am. Rep. 672), the holding is substantially the same.

These cases are a fair illustration of the others cited. The rule is settled beyond controversy that the State, cannot regulate rates of fares and freight on interstate commerce. It is equally well settled that it may regulate such rates between points within the State. The law under which relator acted does not attempt to interfere with interstate commerce fares, but only with domestic fares. The question is, In determining what domestic fares shall be, is it competent to include the amount of interstate fares earned by that portion of the road lying within the State of Michigan ? Without further discussion, we think this question must be' answered in the affirmative. We think the case fairly within the principle laid down in Home Ins. Co. v. New York, 134 U. S. 594 (10 Sup. Ct. 593), and Maine v. Grand Trunk R. Co., 142 U. S. 217 (12 Sup. Ct. 121, 163). It is true that those were franchise taxes, imposed upon the right to do business in the State; but the principle enunciated is stated in the following language in Home Ins. Co. v. New York:

“The validity of the tax can in no way be dependent upon the mode which the State may deem fit to adopt in fixing the amount for any year which it will exact for the franchise. No constitutional objection lies in the way of a legislative body prescribing any mode of measurement -to determine the amount it will charge for the privileges it bestows.”

So it seems fair and just that, in fixing the rate for domestic commerce, the earnings of the road in this State by its interstate commerce should be considered. We see no constitutional provision which is thereby violated. It is no interference with the rates which may be fixed by railroads on their interstate business.

We see no occasion for reversing our former opinion.

The other Justices concurred.


author: Montgomery, C. J.

text:
    ANDRE v. GRAEBNER.
    Landlord and Tenant — Contract — Change or Terms — Validity.
    After defendant had leased a store of plaintiff under a contract for one year, the rent to be paid monthly in advance, defendant became insolvent, and, a difference arising because of the discovery by defendant that he was being charged, contrary to plaintiff’s representations, a larger rent than the adjoining tenant, the parties agreed that defendant should thereafter have the premises so long as he continued to occupy them at the same rent as the other tenant, and that the rent in arrears under the original lease should be considered settled. Held, that the new agreement superseded the lease, was binding on the parties, and changed the tenancy to one from month to month.
    Error to Saginaw; Snow, J.
    Submitted October 3, 1900.
    Decided March 26, 1901.

      Assumpsit by Peter 0. Andre against Christopher Graebner for rent. Erom a judgment for defendant, plaintiff brings error.
    Affirmed.

      Trask & Smith, for appellant.

      Crane & Crane, for appellee.
   Montgomery, C. J.

February 19, 1895, plaintiff rented to defendant and his then partner the store in controversy for three years from April 1, 1895. The defendant and his partner went into possession, paying rent at the agreed price of $60 per month in advance until some time in the summer of 1896, when the partner sold out, and defendant continued to occupy the store. February 15, 1898, the defendant being desirous of occupying the store another year, the following indorsement was made on the old lease:

“$700.00. The within lease is hereby extended for one year longer, viz., from April 1, 1898, to April 1, 1899, at a rent of seven hundred dollars for said one year, and to be occupied for a first-class boot and shoe store by Christopher Graebner; rent monthly and in advance.
“Saginaw, Feb. 15, 1898.
“P. C. Andre.
“Chris. Graebner.”

On the 1st day of May, 1898, the defendant was behind in his rent on the old lease and the renewal $180.02. Defendant paid, during the time he was in the store under the new extension, $311.25. On the night of November 30, 1898, defendant moved out without any notice whatever to plaintiff. Plaintiff wrote defendant December 7th that he should -look to him for the rent of the store until April 1st. The plaintiff succeeded in renting the store March 1st, so no claim is made for that month. According to plaintiff’s claim, defendant owes him $451.07, and the interest since March 1, 1899.

Plaintiff was then renting the store next door to one Altman for $600 per year. The size and location of the stores were the same. Mr. Andre repeatedly told defendant he was treating his tenants alike. Defendant believed he was paying no more than Altman. There is no reason explaining why defendant paid more rent than his next-door neighbor, except the statements made to him by Mr. Andre. About August 24, 1898, Mr. Graebner learned the situation. He went to the office of Mr. Andre, and they talked about the matter. Defendant said to plaintiff: “You are not treating me right. I have actually-paid you $83.31 more rent than Mr. Altman has paid you for the same time.” Defendant says that the only sum talked over on August 24th was the $83.31 that he had paid him more than Altman paid for the same time. That was the first time he knew that Mr. Andre was not giving him the store for the same price Altman was. paying. Defendant testified that Mr. Andre agreed to rent him the store from August 20th at $50 per month so long as he occupied it, and call the past settled. The parties made the new bargain to take the place of .the old one. Defendant was then financially embarrassed, and plaintiff knew it. Defendant gave a check showing on its face that it was in payment for rent up to September 1st, and later gave similar checks for September,. October, and November.

The defendant’s version of the facts was accepted by the jury, and defendant- had judgment. The plaintiff brings error, and contends that there was no consideration for the discharge of defendant from the payment of the larger rate agreed upon.

The general rule that the payment of a less sum‘than the amount due from a debtor will not discharge the debt is well settled. Leeson v. Anderson, 99 Mich. 247 (58 N. W. 72, 41 Am. St. Rep. 597). But, when the payment is made in settlement of a disputed claim not liquidated, the settlement is binding. Tanner v. Merrill, 108 Mich. 58 (65 N. W. 664, 31 L. R. A. 171, 62 Am. St. Rep. 687). So, when the contract is executory, the parties may agree to substitute a new agreement in place of the old, and in such case neither party is at liberty to repudiate the later agreement on the ground that the consideration for waiving rights under the original executory agreement has failed. Moore v. Locomotive Works, 14 Mich. 266; Goebel v. Linn, 47 Mich. 489 (11 N. W. 284, 41 Am. Rep. 723).

• It is contended that under either rule this new contract is binding on the plaintiff. "We prefer to rest our conclusion on the ground that the original contract was, at the time of entering into the new one, executory in large part. In this case, as in Moore v. Locomotive Works, defendant, at the time the new agreement was made, might have refused further performance, and have submitted to pay the resulting damages. Instead of insisting upon his rights, the plaintiff elected to waive them, and enter into a new agreement for the future as well as for the past, and the new agreement modified the terms of the former holding in important particulars. Among other modifications was the substitution of a lease from month to month for a letting for a definite period. We think there was no error in the instructions, which were to the effect that, if a new contract was made, as claimed by defendant, and performed by him, there could be no recovery.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, C. J. Grant, Moore, and Long, JJ.

text:
    WASEY v. TRAVELERS’ INSURANCE CO.
    1. Life Insurance — Cause of Death — Suicide.
    Where there was evidence, in an action on a life-insurance policy, that the insured, who at the time of his death was under treatment at a sanitarium for a form of mental disease usually accompanied by suicidal tendencies, was possessed of a strong desire to escape from his confinement, the jury was warranted in finding that his action in jumping into a river, in which his body was found soon after he was missed by a companion, was impelled by a desire to escape by swimming, and not by a purpose to suicide.
    2. Evidence — Exclusion—Facts Proved — Harmless Error.
    The exclusion of evidence designed to establish a fact sufficiently shown by the uncontradicted testimony in the case is harmless error.

      3. Life Insurance — Cause op Death — Admissions Against Interest.
    In an action on a life-insurance policy, where the beneficiary claimed that the insured came to his death by accidental drowning, evidence that she had stated in the proofs of loss furnished to another company that the insured committed suicide, and that she filed with defendant a physician’s affidavit giving suicide as the cause of death, was competent to be considered by the jury as admissions against her interest, though she was not shown to have had any personal knowledge of the facts.
    4. Same — Hearsay.
    But a statement in the physician’s affidavit that a coroner’s inquest had established the fact that death was the result of suicide was inadmissible as hearsay. Montgomery, C. J., and Hooker, J., dissenting.
    5. Same — Coroner’s Yerdict.
    A verdict of a coroner’s jury, that one whose life was insured committed suicide, is not admissible as original evidence against the beneficiary of the fact that he committed suicide.
    6. Same — Presumptions Against Suicide —Insanity—Instructions.
    Where the defense of suicide was interposed to an action on a life-insurance policy, and the uncontradicted testimony showed that the insured was suffering from a species of insanity usually attended with suicidal tendencies, a charge that the presumption of law was that he did not commit suicide, whether sane or insane, was erroneous; no presumption being properly indulged under such circumstances.
    Error to Wayne; Waite, J.
    Submitted October 5, 1900.
    Decided March 26, 1901.

      Assumpsit by Anna B. Wasey against the Travelers’ Insurance Company on a policy of insurance. Erom a judgment for plaintiff, defendant brings error.
    Reversed.

      Edwin F. Gonely and Orla B. Taylor, for appellant.

      Harlow P. Davock (Otto Kirchner, of counsel), for appellee.
   Montgomery, C. J.

The defendant insurance company issued, upon the life of George E. Wasey, a policy of insurance, payable to the plaintiff herein, for the sum of $12,000, in monthly installments of $50 each. The policy was subject to the condition that in case of suicide committed by Mr. Wasey, while sane or insane, within two years from the date of the policy, the limit of recovery thereunder should be the premiums paid thereon. It was issued upon the 23d day of February, 1897. Only one annual premium, of $232.44, had been paid, when Mr. Wasey died. On the 2d day of November, 1897, Mr. Wasey came to his death by drowning in the Flint river, at Flint, in this State. On the trial in the court below the plaintiff contended that the drowning of Mr. Wasey was accidental. The defendant contended that it was intentional and suicidal. This was practically the sole issue in the court below. The jury found for the plaintiff for all the $50 installments past due at the date of the verdict. The defendant submitted to the jury the following question: “Did George E. Wasey commit suicide?” They answered it, “ No. ”

At the time of Mr. Wasey’s death he was, and ever since the previous July he had been, a patient at the Flint sanitarium. Mr. Wasey was suffering from melancholia agitata. The evidence shows that this disease is often accompanied by a suicidal impulse, and the statements made by Mr. Wasey to his wife while at Flint indicate that he had, before entering that institution, entertained the idea of killing himself, but he at the same time stated that he had not entertained such a thought while at Flint, and asked his wife’s forgiveness for having'thought of such a thing on the earlier occasion. There was testimony tending to show that Mr. Wasey was under a strong impulse to make his escape from the sanitarium. The manner of his death, briefly told, was as follows: He went for a drive with his friend and former pastor, Rev. Mr. Washburn. They entered the cemetery bounded by the Flint river. Mr. Washburn, having left his horse unhitched at a distance of some'10 or 12 rods away from the point to which they had walked, suggested that they return. Mr. Washburn describes what then occurred as follows:

“He says, ‘You go back and get the horse, and I will be here when you return.’ I went back for the horse. I did not turn to look to see where he was. * * * It is quite easy walking from that point over to the horse, so-that I would not be delayed. There is a driveway. I walked at just an ordinary gait. I immediately took the horse, and turned him around. There was no interval of' delay. I drove then to the point where Mr. Wasey said he would be, — where I would find him. That was where-I left him, — about a rod away from where I left him. When I reached there I did not see him. After a time I called for him, and received no response. I then went about some. On the north side of the cemetery is a ridge that commands all the view. I drove up on that ridge, and drove all about the cemetery, in search of him. I did not see him. * * * It would be hard to judge-exactly how long I had been away from him until I returned to the place where I had left him. It does not seem to me it could be over five minutes; it might have-been. I would not think it was over five minutes. From the place where the miniature house stands on the little-girl’s grave, to the best of my knowledge, I think you cannot see the river. The river is visible from parts of the cemetery. The distance from the cemetery to the river varies. I should think at some points it was 100-rods; other places, perhaps not more than 50, as the river curves. I afn not very accurate in my estimate of distances. It is an open country between the cemetery and the river after you leave the cemetery fence, ■ — the cemetery borders. There are trees and shrubbery on the borders of the cemetery. Between it and the river there are none. It is entirely open for a mile and a quarter or so.”

A search was very soon instituted, and it was found’ that Mr. Wasey had laid aside his overcoat at the bank of the river, and his body was soon after found in the stream.

It was the defendant’s contention that the evidence conclusively showed that Mr. Wasey committed suicide. The plaintiff contended that the facts justified the inference that deceased went into the river for the purpose of escaping from confinement, and evidently the jury so found. We are not able to say that this theory is wholly unsupported by the evidence in the case. The testimony tending, as it did, to show the strong desire of Mr. Wasey to escape from his confinement, when taken in connection with the circumstances of his death, leaves the case open to the inference that he was attempting to escape by swimming the Flint river. Whether this theory was as well supported as that of suicide was. a question for the jury.

Mr. Wasey was placed in the charge of Fred E. Armsti’ong by Dr. Burr, and when he was a witness on the stand he was asked what Dr. Burr said to him when he placed Mr. Wasey in his charge. We think it unnecessary to determine whether this testimony was admissible, as the only purpose for which it was admissible was to show the facts that Mr. Wasey was suffering from melancholia agitata, and that this species of insanity is usually attended with suicidal tendencies. These facts appeared by undisputed testimony. We think, therefore, that it was not prejudicial error to exclude this testimony.

Mr. Davock, acting for plaintiff, applied to the agent of the company for blanks upon which to make proofs of loss. Proofs were made up, consisting of affidavits (1) of an acquaintance of the deceased to his identity, (2) of the undertaker, (3) of the clergyman, (4) of the beneficiary to the age of the deceased, (5) of the beneficiary to her claim, (6) of Mr. M. J. Murphy to the movements of the deceased while insured, and (7) of Mr. Murphy, as a friend of the deceased, that Mr. Wasey came to his death by drowning in the Flint river, Mich. These were all .on one sheet of paper. In addition to these papers, there was forwarded to the company an affidavit made by Dr. Burr, in which he stated, among other things, that “in consequence of melancholia there developed delusions of unworthiness and apprehension, which led to suicide; he drowned himself in the Flint river;” that “the act of suicide had not been caused by any pernicious habit;” and that “a coroner’s inquest had been held, which established the fact that death was the result of suicide in consequence of insanity.” .The court excluded the statements in the affidavit of Dr. Burr above quoted, but offered to receive the other statements of the affidavit. Another ruling, closely allied to this, occurred as follows: Mr. Wasey carried other insurance. In the proofs of loss furnished by plaintiff to other companies she made the statement that Mr. Wasey came to his death by committing suicide. The trial court instructed the jury as follows:

“In considering the testimony that the plaintiff, in proofs of her husband’s death made to other insurance companies, stated that he had come to his death by committing suicide, you must consider whether she had any knowledge upon the subject, and, if you find that she had not, you cannot further regard such testimony.”

These two rulings may be considered together, and, as will be observed, they present the question whether an admission of a fact is rendered incompetent, and is to be withheld from the jury, or withdrawn from the jury, when it appears that the party who makes the admission has no personal knowledge of the fact. This question arose in Kitchen v. Robbins, 29 Ga. 713. The question was stated and answered as follows:

“Are no admissions good against a party unless founded on his personal knowledge? The admissions would not be made except on evidence which satisfies the party who is making them against his own interest that they are true, and that is evidence to the jury that they are true. Admissions do not come in on the ground that the party making them is speaking from his personal knowledge, but upon the ground that a party will not make admissions against himself unless they are true. The fact that he makes them against his interest can be reasonably explained only on the supposition that he is constrained to do so by the force of the evidence. The source from which a knowledge of the facts is derived is a cireumstance for the jury to consider in estimating the value of the evidence, but that is all.”

A like question was presented in Sparr v. Wellman, 11 Mo. 230. The court said:

“An admission is the statement of a fact against the interest of the party making it; hut it is not essential, to constitute it an admission, that the fact should have come under the personal observation of the declarant. Undoubtedly, admissions of the latter kind are much stronger than where the declaration is of a fact of which the party could have no personal knowledge. But, where a party believes a fact upon evidence sufficient to convince him of its existence, his declaration of the existence of that fact, if against his interest, is evidence against him. It is, no doubt, evidence of a very unsatisfactory character,, depending altogether on the circumstances under which it is made; but it is competent.”

The particular facts of that case, and the deductions from them, are still more in point. The statement by the court and its direct ruling was as follows:

“ Sparr was an innkeeper, and Wellman was his guest. A robbery was alleged, and the innkeeper himself, in this conversation with Crenshaw, * * * speaks of it as a fact, without qualification. Might it not be inferred from the relation of the parties that the innkeeper, upon hearing such a report, would feel sufficient solicitude for the credit of his house to make the necessary inquiries, and satisfy himself of the truth of the reported robbery, before he would contribute to its promulgation through the columns of a daily newspaper ? If he had made such inquiries, and became convinced of the truth of the report, he was then stating as fact what he had not only heard, but believed.”

In Chapman v. Railway Co., 26 Wis. 303 (7 Am. Rep. 81), it was said by Dixon, C. J.:

“It is not necessary that admissions, to be received in evidence, should be as of facts within the knowledge of the party making them. They may be made upon information derived from others, and still be given in evidence against the party.”

The same doctrine was declared by the same learned justice in Shaddock v. Town of Clifton, 22 Wis. 118 (94 Am. Dec. 588).

The instructions given in this case were not in harmony with those authorities. That the entire proofs of loss were admissible, as in the nature of an admission, see New York Central Ins. Co. v. Watson, 23 Mich. 486; John Hancock Mut. Life Ins. Co. v. Dick, 117 Mich. 518 (76 N. W. 9); Insurance Co. v. Newton, 22 Wall. 32.

Counsel for plaintiff cite Insurance Co. v. Higginbotham, 95 U. S. 380. In that case it appeared that the plaintiff accompanied her proofs of loss with an affidavit made by Dr. White, in which he stated that deceased had been ill about five months prior to his death, which occurred on the 22d of January, 1871. The court pointed out that the bodily health of the insured on the 1st of October, 1870, was satisfactory to the company, and that the attempt of the company was to show an unfavorable alteration between that date and the 14th of the same month. It appeared that White had not seen him during that period. It was held that a ruling excluding this statement of the affidavit could not have worked legal injury to the company. The court say:

‘ ‘ Whether the presentation of the affidavit of White by Mrs. Day made its contents evidence, whether she knew its contents or not, whether she did or did not adopt or procure it, was not of the slightest consequence. The paper contained nothing that was legal evidence upon the point in issue, and a verdict founded upon it could not have been sustained.”

The inference is that as the company, by its physician, had been satisfied of the condition of the insured on the 1st of October, the statement that insured’s illness began at an earlier date did not tend to prove that there had been an unfavorable alteration in his condition after the 1st of October and before the 14th. The case of Insurance Co. v. Newton, 22 Wall. 32, is expressly approved.

The next question presented is whether the verdict of the coroner’s jury was admissible as original evidence of the fact that Mr. Wasey committed suicide. This question has never before been presented to this court in the form in which it arises on this record, and is an important one. There are authorities sustaining the admissibility of such records at the common law. The most elaborate modern case on the subject is United States Life Ins. Co. v. Vocke, 129 Ill. 557 (22 N. E. 467, 6 L. R. A. 05), in which the authorities are collected. The most satisfactory reason assigned for receiving such records is that it is a determination of a judicial nature, and analogous to a proceeding in rem. 1 Greenl. Ev. § 556. By the ancient law, such high credit was given to a coroner’s inquest that the judge would not receive a verdict acquitting a person of the death of a man found against the accused by the coroner’s inquest, unless the .jury finding such acquittal had also found what other person did the act, or by what other means the party came to his death. 2 Bac. Abr. 431, tit. “Coroners.” This rule does not now obtain anywhere, and the natural inquiry is, What remnants of it ought to continue ?

The inquiry into the cause of death cannot, under our law, in and of itself establish the status of any one or of ■any property. So it is provided -that a record is to be transmitted to the circuit court only in case the jury find that murder, manslaughter, or assault has been committed upon the deceased. 3 Comp. Laws 1897, § 11826. Action based upon the finding is, in such case, authorized, hut not in any other case. At the ancient common law, when the jury found that a person had committed suicide, ignominious burial followed. To this extent the inquest established the status of the deceased; but, under our practice, nothing follows upon the verdict except in case :it is found that a crime has been committed. Why, then, should a stranger to the proceeding be bound by the verdict? Why should it be evidence against a stranger of the cause of his death? We cannot see any well-grounded reason why such a verdict should be either conclusive or evidence against a stranger to the proceeding. The case of United States Life Ins. Co. v. Voeke, 129 Ill. 557 (22 N. E. 467, 6 L. R. A. 65), sustains the contention of appellant, but we do not approve of the reasoning of the court or the conclusion reached. See Mutual Life Ins. Co. v. Schmidt, 8 Am. Law Rec. 629, 40 Ohio St. 112.

But one other question is likely to arise upon a new trial. The circuit judge charged the jury that there is no presumption of law that a man who is insane will commit suicide, and added, at the suggestion of plaintiff’s counsel, “From the law, as I understand it, the presumption is-that he did not commit suicide, whether sane or insane.” We think that the instruction in this form was likely to mislead the jury. True, the fact of suicide is a fact to be established by the defense; but the evidence in this case shows that Mr. Wasey was insane, and, as stated in the brief of plaintiff’s counsel, his insanity was of a nature usually attended with suicidal tendencies. It is to do violence to the facts to say of a man thus afflicted that there is nevertheless a presumption that he did not do the thing which men in his state usually or commonly feel impelled to do. The instruction was error. Mutual Ben. Life Ins. Co. v. Daviess’ Ex’r, 87 Ky. 541, 549 (9 S. W. 812).

For the errors pointed out, the judgment is reversed, and a new trial ordered.

Hooker, J., concurred with Montgomery, C. J

Grant, Moore, and Long, JJ.

We concur in the opinion of our Brother, the Chief Justice, except in his holding to be admissible in evidence that portion of Dr. Burr’s affidavit which stated “that a coroner’s inquest was held, which established the fact that death was the result of suicide in consequence of insanity.” Such statement is pure hearsay, and therefore, in our judgment, incompetent. The distinction between an admission and a statement which is mere hearsay is shown in Shaddock v. Town of Clifton, 22 Wis. 116 (94 Am. Dec. 588). And see, also, Mutual Life Ins. Co. v. Schmidt, 8 Am. Law Rec. 629, 40 Ohio St. 112.


author: Hooker, J.

text:
    FREUD v. RUHL.
    Subrogation — Execution Sale — Redemption by Mortgagee Under Decree oe Foreolosure — Rights oe Surety.
    A mortgagee, after obtaining a decree of foreclosure of his mortgage, which was given by a husband and wife to secure a debt of the husband, and covered land owned by them in undivided moieties, exercised the right to redeem the husband’s moiety from an earlier sale on execution against the husband, as provided by 3 Comp. Laws 1897, § 9185. Thereafter, at a sale under the decree of foreclosure, the mortgagee laid claim to the absolute ownership of the husband’s moiety by virtue of such redemption proceedings, and, having thus deterred other purchasers, bought in the same, subject to the execution sale, for a nominal sum. The wife’s moiety was then sold, being compelled to bear the burden of the entire mortgage. Held, that the wife occupied ¿he position of -surety with respect to the mortgage debt, and as such had the right of subrogation, and might redeem the land from the mortgage and execution sale upon reimbursing the mortgagee.
    Appeal from Wayne; Rohnert, J.
    Submitted November 14, 1900.
    Decided March 26, 1901.
    Bill by Leopold Freud against Louise Ruhl and others to foreclose a mortgage. There was a decree for complainant, and a sale under the decree, at which complainant and John B. Sevald became the purchasers of separate moieties of the land. Defendant Ruhl appeals from an order denying her petition to redeem.
    Reversed.

      Bacon & Yerhes, for petitioner.'

      Keena & LigMner, for complainant.

      Brennan, Donnelly & Van De Marie, for defendant Sevald.
   Hooker, J.

Ruhl and wife, Louise, owned undivided moieties of a certain tract of land. On January 18, 1895, Clark and wife levied upon the undivided half owned by Mr. Ruhl an execution against the property of the latter. A month or so later the Ruhls joined in a mortgage for #1,000 to Freud. Sale on the execution occurred June 5, 1898, and Clark purchased Mr. Ruhl’s undivided half for #4,000. Freud foreclosed his mortgage, and obtained a decree on May 19, 1899. On September 1, 1899, he attempted to redeem the land sold on execution, as a judgment creditor, under the statute (3 Comp. Laws 1897, § 9185), and received a deed of the premises from the sheriff. Sections 9185 and 9195 are as follows:

‘ Any creditor of a person against whom such execution issued, having in his own name, or as assignee, representative, trustee, or otherwise, a decree in chancery, or a judgment at law, under which execution shall have been issued and levied upon the real estate so sold, or a decree which shall be a lien without execution and levy, at any time before the expiration of fifteen months from the time of such sale, by paying the sum of money which was paid on the sale of such premises, together with the interest thereon, computed at the rate borne by the judgment under which such sale was made, from the time of such sale, shall thereby acquire all the rights of the original purchaser, subject to be defeated in the manner hereinafter mentioned.”
“To entitle any creditor to acquire the title of the original purchaser, or to become a purchaser from any other creditor, pursuant to the preceding provisions, he shall present to and leave with such purchaser or creditor, or the officer who made the sale, or with said register, the following evidence of his right: (1) A certified copy of the judgment, or decree under which he claims the right to purchase. (2) A true copy of all the assignments of such judgment or decree which are necessary to establish his claim, verified by his affidavit, or the affidavit of some witness thereto. (3) An affidavit by such creditor, his agent or attorney, of the true sum due on such judgment or decree at the time of claiming such right to purchase.”

It is claimed that this deed was void, and that Freud acquired no title, because of noncompliance with the statute in the following particulars, viz.:

1. That the statutory affidavit was not entitled in any cause, or attached to any record showing the title of the cause.

2. That the paper filed at the same time, purporting to be a certified copy of the decree, was not in fact a copy of such decree.

Freud caused the premises to be sold under the decree of foreclosure, the undivided half interest of Buhl being sold first. It was purchased by Freud for $10, subject to the execution sale. Others were present, who were deterred from bidding by the claim of Freud that he was absolute owner under the execution proceedings and sheriff’s deed, and that the mortgage lien was cut off thereby. The other undivided half was bid in subject to the mortgage. Upon the filing of the report of sale by the commissioner, Louise Buhl filed exceptions to such report, and also filed a petition asking the court to set aside the sheriff’s deed, and that the amount paid by Leopold Freud to the sheriff be decreed to' be a redemption of said property from said sale, for the protection of the interests of all parties interested in said premises, and that the sale of the premises under the decree be set aside and a resale ordered, and petitioner be permitted to redeem from said mortgage and from the said sheriff’s deed.

It seems to be settled by the decisions of New York, from whence we adopted this statute, that this right given a creditor to redeem is a gratuity. Manifestly, he will not redeem unless there is a supposed margin of value; and justice would seem to demand that such margin should be applied upon his claim against the debtor, as is held in Indiana under a statute which seems to require it. See Rice v. Puett, 81 Ind. 237. But it is otherwise in New York. Thus, in Emmet’s Adm’rs v. Bradstreet, 20 Wend. 50, it was held that a creditor, by-redemption, takes title and stands in place of the purchaser, whose title was pórfect against the debtor. The redeeming creditor is-bound to extinguish intermediate liens, and so far the debtor is benefited; but the judgment of the redeeming creditor remains unaffected. In Van Horne v. McLaren, 8 Paige, 285 (35 Am. Dec. 685), it was said:

‘ ‘ Again, the title which a purchaser or redeeming creditor acquires to a piece of land is derived from the judgment under which the sale is made, and not under that by force of which it was redeemed. The title of which the-defendant was seised at the docketing of the former judgment is conveyed by the sheriff, and no allusion is made in the deed to the judgment under which the redemption took place. This circumstance, it appears to me, is decisive against the ground assumed by the plaintiff. Nor is this view of the case changed by the fact that the defendant in this case will make a speculation by being permitted to hold the advantage derived by his redeeming. If such considerations were allowed to influence the court, every sale of real estate under an execution might lead to a bill in equity, and a reference must be had to ascertain how much the redeeming creditor must allow on his judgment out of the profits of the speculation. This cannot be done. It is far better to leave parties to regulate the-prices they will give for property themselves than that the court should make bargains for them. Cases of fraud, accident, or mistake may be aided by this court; but everything else may be safely confided to the keen-eyed vigilance and sagacity of the parties. * * *
“And in the recent case of Emmet’s Adm’rs v. Bradstreet, 20 Wend. 50, the same court decided that the-redemption by the junior creditor was no bar to an action to enforce the payment of his judgment,, although the value of the lands redeemed exceeded the amount of the judgment and the redemption money. This being the settled rule of law on the subject, there is no principle of equity which calls upon this court to establish a different rule here. Although the redeeming creditor may have made a good speculation by redeeming from the first sale, he did not make it at the expense of or for the benefit of the judgment debtor, whose right to redeem was forever gone. The latter is not, therefore, entitled to the benefit of the speculation, for which he neither furnished funds nor ran any risk.”

We find it unnecessary to pass upon this question. Freud’s decree gives support to Mrs. Ruhl’s claim that she was a surety, and as such she is entitled to reimbursement from any security that he may have for his debt. He is, in equity, under obligation to surrender to her whatever property he may have of Ruhl’s that is subject to this claim. He need not have redeemed this land, it is true; but he chose to do so. He applied the equity in this land, to the extent of $10, to the debt, but refused to do more, and claimed it was cut off. We think he should not be thus permitted to collect the debt from the surety, and at the same time speculate out of the property of the principal through his statutory right of redemption. She should have a right of subrogation, and it is no hardship that his redemption should be for her benefit as well as his.

We find it unnecessary to pass upon other questions. The order of the circuit court will be modified, and the defendant Louise Ruhl will be permitted to redeem the two parcels of land by reimbursing complainant for the expense of redemption and the amount of the decree and costs in the foreclosure proceeding within 60 days, in which case he shall convey to her, by good and sufficient deed of conveyance, his title to the property so redeemed by him. If she shall fail to redeem within that time, the order of the circuit court will be affirmed, with costs of this court. Otherwise, defendant will recover costs of this court.

Moore, Long, and Grant, JJ., concurred. Montgomery, O. J., took no part in the decision.


text:
    McCLURE v. MURPHEY.
    Principal and Acent — Authority—Question for Jury.
    The question whether there was such a holding out of defendant’s brother as his agent as would render the defendant liable on the brother’s contract of hiring, held to be a question of fact for the jury, under the evidence, and not one of law for the court.
    Error to Alpena; Kelley, J.
    Submitted November 13, 1900.
    Decided March 26, 1901.

      Assumpsit by James McClure against Peter J. Murphey for work and labor. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Charles D’Aigle, for appellant.

      L. 6r. Dafoe, for appellee.
   Montgomery, C. J.

The plaintiff sued to recover for services rendered on a farm owned by defendant, and for meals furnished to men who from time to time performed labor on the farm. The defendant’s testimony was to the effect that he had contracted with his brother, John J. Murphey, to clear certain land on the farm and to cut hay on shares, and that he, and not defendant, employed the plaintiff.

The testimony of defendant is that the team used on the farm belonged jointly to defendant and John J. Murphey. John J. Murphey testifies that defendant’s interest in the team was represented by a chattel mortgage. Both agree that John J. had no authority to employ plaintiff to work for the defendant.

The plaintiff testified that, on the morning he started out from John J.’s premises to go to the farm, John J. told him that he and defendant had two or three farms, and made a bargain with him to do the work in question; that,-while still at the barn on John J.’s premises, the defendant gave him money to have repairs made to the harness,, and gave John J. a dollar to buy seed corn.

The circuit judge was evidently of the opinion that the evidence conclusively showed such a holding out by defendant of John J. as his agent that defendant was bound by the employment. "We think, however, that the question was one for the jury. The inference to be drawn from defendant’s acts was an inference of fact, and not of law. We regret the necessity of reversing the judgment in this cas¿, as it seems probable that the correct result was reached; but we are constrained to hold that there was a question for the jury.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    DAVIS v. TEACHOUT’S ESTATE.
    1. Contracts — Destruction of Writing — Secondary Evidence.
    Where, in an action to enforce a claim against an estate, it became important for the claimant to prove the substance of a certain contract which had been destroyed by decedent in his lifetime, secondary evidence thereof was not rendered incompetent by the fact that the claimant was present when the contract was destroyed, and gave his consent thereto; it appearing that none of the parties at the time had reason to think its preservation necessary.
    2. Same — Terms—Materiality—Instructions.
    Claimant presented a claim against decedent’s estate, based on the latter’s agreement to pay him for the care of decedent’s father; the claim as filed asserting that a pre-existing contract by decedent to support his father was carried out by the claimant. The contract referred to was destroyed in decedent’s lifetime. Reid, that secondary evidence of the terms and consideration of the contract was properly admitted, as bearing on the probability of the new agreement’s having been made as alleged, under instructions that the precise terms were immaterial, so long as it was shown that decedent was bound thereby to support his father for life.
    3. Same — Agreement to Defer Payment — Consideration.
    An agreement to defer the time of payment of an obligation until the obligor’s death, upon the latter’s promise to pay for the waiting, is based upon a valid consideration.
    4. Same — Substituted Agreement — Limitations.
    The statute of limitations does not begin to run against the substituted agreement until the obligor’s death.
    5. Trial — Special Questions — Refusal to Submit.
    It is not error to refuse to submit special questions the answer to which could not affect the result.
    Error to Kent; Wolcott, J.
    Submitted December 6, 1900.
    Decided March 26, 1901.
    Andrew L. Davis presented a claim against the estate of Miles Gf. Teachout, deceased, under a contract for the support of decedent’s father. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Affirmed.

      W. D. Fuller, for appellant.

      Frankhauser & Cornell (W. H. Haggerty, of counsel), for appellee.
   Hooker, J.

Claimant’s wife and Miles G. Teachout were children of Jacob Teachout. The evidence tended to prove that Miles G. Teachout made a contract with his father many years ago to furnish him an adequate maintenance for life, and that afterwards, finding it inconvenient to have him in his family, he engaged the claimant to support him, promising to pay him well for doing so. This was about 1870. The claimant performed the service until 1876, when Jacob Teachout died, claimant having supported him 283 weeks. Miles and the claimant then had an interview, in which Miles admitted his obligation to pay, but did not want to pay then. Miles told claimant that he had a good deal of property, and not an heir in the world, and that, if he would wait until the final disposition of his property,' he would see that he was well paid, and well paid for waiting. Claimant consented to do so. Miles died in 1898, without having paid anything, and the claimant filed his claim in probate court for $1,438.65, including interest. The claim was disallowed by commissioners, but upon appeal a verdict was obtained for $1,557, and the defendant has brought the case here by writ of error.

It appeared upon the trial that the arrangement between Miles and his father was made in New York, and that it was in writing, and that Miles did support his father in his family for many years. These facts do not appear to have been disputed by any evidence. There was proof tending to show that the contract was burned, together with a lot of notes held by Jacob Teachout against his children, on an occasion when claimant was present, and with the assent of all parties; and it was contended that under such circumstances it was not competent to give secondary evidence of the contract. We think otherwise. Miles himself destroyed the instrument — if it was destroyed — at a time when none of the parties had reason to think it necessary to preserve it. If it was not destroyed, it was lost. There is no suspicion of fraud on the part of claimant in the matter, and the case should not be ruled by Shouler v. Bonander, 80 Mich. 531 (45 N. W. 487), cited by counsel.

“It is not a matter of course to allow secondary evidence of the contents of an instrument in suit upon proof of its destruction. If the destruction was the result of accident, or was without the agency or consent of the owner, such evidence is generally admissible. But, if the destruction was voluntarily and deliberately made by the owner, or with his assent, as in the present case, the admissibility of the evidence will depend upon the cause or motive of the party in effecting or assenting to the destruction. The object of the rule of law which requires the production of the best evidence of which the facts sought to be established are susceptible is the prevention of fraud; for, if a party is in possession of this evidence, and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes, which its production would expose and defeat. When it appears that this better evidence has been voluntarily and,deliberately destroyed, the same presumption arises, and, unless met and overcome by a full explanation of the circumstances, it becomes conclusive of a fraudulent design, and all secondary or inferior evidence is rejected. If, however, the destruction was made upon an erroneous impression of its effect, under circumstances free from suspicion of intended fraud, the secondary evidence is admissible. The cause or motive of the destruction is, then, the controlling fact which must determine the admissibility of this evidence in such cases.” Bagley v. McMickle's Adm’rs, 9 Cal. 430.

Considerable testimony was given concerning the terms and consideration of this original contract, but its materiality consisted only in its tendency to explain and render probable the theory of one or the other party in the case. Miles Teachout’s obligation was an underlying fact, pertinent to the subject, but not necessary to the validity of a promise to pay Davis if he would support Jacob Teach-out, though, under the theory of defendant’s counsel, the claim as filed asserted that claimant carried out such original contract, and it was therefore necessary to prove such obligation. We look upon this as technical; but it is unimportant, for it was conclusively proved that Miles contracted to support his father. But it is not consistent with a claim that the contract was immaterial. Much of this testimony was of little importance to the real dispute but it was explanatory, and counsel might well think it prudent to introduce it for the consideration of the jury. The court instructed the jury that the important question was whether the contracts were made between Miles and the claimant, and that, if they found such contracts were made, the terms of the original contract were not very important, so long as it bound Miles to support his father for life.

It is clear that the case rested and turned upon an alleged agreement by Miles to pay at death, and added compensation for claimant’s waiting. This was a valid arrangement, and leaves no ground for the claim that the statute of limitations bars the obligation. A new contract was substituted for the first one made between Miles and claimant, and as to that the statute has not yet run. Counsel strenuously urges that this was not a valid contract, and that there was no forbearance to sue, because there wa? no threat to sue. It seems to us elementary that an agreement to defer the time of payment, upon a promise to pay for the waiting, is based upon a valid consideration.

Again, it is claimed that the contract to support Jacob Teachout was made by the claimant and his wife. The only evidence tending to prove this was admissible only by way of impeachment, and, while it perhaps tended to discredit Mrs. Davis, it was not affirmative evidence of the fact. The submission of special questions was properly refused. It is not error to refuse to submit special questions upon immaterial, inconclusive, or admitted matters. Nor is it when the answer cannot affect the result.

A few other questions have been reviewed, but we find no error in them.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    BURTON v. VARIETY IRON WORKS.
    Appeal — Evidence—Hearsay—Objection Not Raised Below.-
    Where testimony in support of an allegation was admitted the trial without objection or subsequent motion to strike out, it cannot be claimed on appeal that there was no competent evidence in support of such allegation, on the ground that the evidence admitted was hearsay, since, had objection been raised at the trial, competent evidence might have been supplied.
    Error to Wayne; Carpenter, J.
    Submitted December 7, 1900.
    Decided March 26, 1901.

      Assumpsit by William J. Burton against the Variety Iron Works for work and labor. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Hedley V. Richardson, for appellant.

      Bowen, Douglas & Whiting, for appellee.
   Moore, J.

The amount in dispute in this case is $54.34. It was the claim of the plaintiff that he did extra work upon a building at Port Huron, by putting on roof flashings, to the amount for which he recovered judgment, for which defendant was to pay. It is the contention of the defendant that it was no part of -its contract to do this work; that it never ordered the work done, and never authorized it to be done. The circuit judge thought there was a question of fact involved, which should be submitted to the jury, and he did submit it to them. It is now claimed that the judge should have directed a verdict in favor of defendant.

It is claimed by the plaintiff that the record does not purport to contain the substance of all the evidence offered in the case; that, under such circumstances, we cannot presume there was no testimony justifying the charge of the judge, — citing Botsford v. Chase, 108 Mich. 432 (66 N. W. 325); Cappon & Bertsch Leather Co. v. Preston Nat. Bank, 114 Mich. 263 (72 N. W. 180); Van Werden v. Winslow, 117 Mich. 564 (76 N. W. 87). This would be the rule if the fact was as stated; but the record shows that it contains substantially all of the testimony bearing upon the disputed claim.

The defendant insists that there is no competent evidence to show that it was any part of its contract to do the work in dispute; that the testimony of plaintiff bearing upon that subject was hearsay. No objection was made to the admission of the testimony, nor was any motion made to strike it out. If it had been objected to in the court below, and excluded, because it was hearsay, it is quite possible that the testimony might have been supplied by competent evidence. If the objection was to he made, it should have been made in the trial court.

As to the defense which is urged, — that there was no testimony tending to show defendant had ordered the work done or authorized it to be done, — we think, putting the most favorable construction possible upon the testimony offered by the plaintiff, that it does not show that the defendant authorized the work to be done. On the contrary, we think that the correspondence shows that, when defendant’s attention was called to this work, it declined to authorize the plaintiff to do it on its behalf. We think that a verdict should have been directed in favor of defendant.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.