text:
    Patrick J. Perrott v. James Shearer.

      Objection to evidence: Waiver. The proper time to take an objection to the formal proof of a paper, is when it is offered in evidence; and if no objection'is then made, and the paper is allowed to be read to the jury, the party offering it is always at liberty to infer that his opponent is satisfied with its due execution, and proposes to raise no objection on that score.

      Evidence: Jimj: Charge of court. When evidence is submitted to a jury as bearing upon a certain point, it is for them, and not for the court to determine, whether it tends to establish that point or not. When a judge is asked to instruct a jury that the evidence tends to prove a certain fact, he is, in effect, requested to give a direction to their judgment, which may, if they follow him, overrule their own convictions.

      Assignment of goods: Fire: Damages: Assignee. The goods included in the assignment in this case, and while under the control of the sheriff, by virtue of his attachment levy, were accidentally destroyed by fire.
    The assignee (plaintiff below) had effected an insurance on the goods, and collected the money.
    In an action of trespass by the assignee, defendant insisted that plaintiff, having been paid for the goods, could only recover damages for their detention up to the time of the fire, but the Circuit Judge instructed the juiy that he might recover the full value of the goods.

      Held, that the instruction was correct, defendant being a wrong doer, having no concern with any contract of insurance the plaintiff might have, and being able to purge himself of his wrong only by paying for the goods which he had wrongful possession of.

      Beard April 4th.

      Decided April 28th.

    Error to Bay Circuit.
    This was an action of trespass against the defendant, plaintiff in error, for seizing and taking certain goods of the plaintiff, defendant in error.
    The defendant below pleaded the general issue and gave notice that the property seized was in possession of one Henry H. Swinscoe; that defendant, at said time, was Sheriff of Bay county; that on the 24th day of July, 1865, a writ of attachment was issued out of the Bay County Circuit Court, against the goods and chattels of said Swinscoe, and that he seized and took the property mentioned, if at all, by virtue of said attachment, etc.
    The cause was tried by a jury.
    Henry H. Swinscoe and George E. Swinscoe, his son, were co-partners doing business in Bay City. Some time in June, 1865, George E. Swinscoe went to Chicago, in the State of Illinois, to reside: Henry H. Swinscoe still remaining in Bay City, doing business under the firm name of Swinscoe & Son. The firm being in embarrassed circumstances, on the 24th day of July, 1865, an assignment for the benefit of the creditors of the firm, was made to James Shearer, of Bay City. The assignment was executed by Henry H. Swinscoe, and also by George E. Swinscoe by his agent, Henry H. Swinscoe. On the same day, Mr. Shearer took possession of the property assigned, and commenced taking an inventory of the property. On the same day, viz: the 24th day of July, an attachment was issued out of the Circuit Court for Bay County in favor of Beatty & Fitzsimmons, of Detroit, and against Henry H. Swinscoe and John McDermott as defendants, and delivered to the plaintiff in error, who was then Sheriff of Bay County, commanding him to seize, etc., the goods of Henry H. Swinscoe; and on the 25th day of July, 1865, as appeared from the return of- the plaintiff in error as Sheriff, he seized the goods in question by virtue of said writ.
    The goods were destroyed by fire, while in possession of plaintiff in error as such officer, on the 8th day of October, 1865; but the said Shearer holding a policy of insurance thereon, collected the amount so insured.
    Judgment was rendered for the full value of the goods.
    The rulings of the court are stated in the opinion.

      Webber é Smith, for plaintiff in error.
    1. On the trial, the defendant below offered to prove that the plaintiff claimed to be the owner of the goods at the time of the fire, and that he had received on that claim from the Insurance Companies the full value of the goods. This was clearly admissible in mitigation of damages. Admitting all that the plaintiff claimed, that he was entitled to the goods at the time of the levy, and that the sheriff was a wrong-doer in seizing them as the property of Swinscoe, yet the taking of them did not divest the plaintiff of his ownership. He might bring replevin for them at any time, and thus recover the goods with damages for detention. If the sheriff became convinced that he had no right to hold them, he could offer to restore them to the plaintiff, who nr gilt accept them if he saw fit to do so, and who would then,, only have his action for damages for the taking, but not for the value. By claiming his ownership to continue and to exist at the time of the fire, and by receiving from the Insurance Companies the value of the goods, it is as though he had at the time of the fire received back his goods from the hands of the sheriff; or it is as though he had on that day repossessed himself of his goods by replevin.
    Shearer’s possession under the assignment was taken on the 24th of July, and the levy was on the next day. There is no element in the case which can be assigned as a reason for punishing the defendant by making him pay more than the damage sustained, nor for .rewarding the plaintiff by allowing him a double value for the goods.
    Only one of the parties had an insurable interest in the goods, and that was the owner. If Mr. Shearer was the owner, and had his interest as such protected by insurance, then the goods were his, the loss by fire was his loss, for which the insurance compensates him, and he can only recover from the defendant damages accrued to that time, not including the value of the goods.
    2. The record discloses the fact that this property was the property of Swinscoe & Son. That one of the firm assumed, in the absence of the other, to make a general assignment with preferences which was not ratified, assented to or approved by the other partner, so far as shown.
    This was a part of the plaintiff’s case. It was essential to his title. His only right was under this assignment. If this ivas void, he had no rights in the property, and the sheriff with his writ, was entitled to seize the goods. The execution of this assignment was not even made in the firm name. It was signed by the debtor against whom the attachments were issued (on the same day he signed it), in his own name, and also with the name of his partner: he assuming to act as his attorney, but no authority is shown to act as such: against creditors this was essential. On this point we cite 1 Hoff. Ch. 511; Har. Ch. 172; 1 Doug. 477; 1 E. D. Smith, 341; 3 Sancl. S. C. 284, 296; 5 Mo. 463; 6 Id. 317; 17 Vt. 390; 5 Paige, 30; 3 Watts and Sergt. 454; Coll. on Part. 395; Story on Part. $ 101; Burrill on Ass’gts, pp. 36-55.

    "We do not find any case where an assignment with preferences, executed by one partner without the knowledge or approval of the other, has been upheld. It was void as to the absent partner, void as to creditors, and void in toto. Har. Ch. 172; 1 Doug. 477; 2 Mich. 445.

      Marston é Hatch, and A. B. Maynard, for defendant in error.
    1. The collection of the insurance policy by the plaintiff below is not inconsistent with his right to recover against the sheriff for the illegal taking. In the one case, it is a recovery from the insurance company upon the contract of insurance. — 7 Cush. 1; 2 Gray, 216. In the other it is a recovery against a wrong doer, for his tort.

    If the defendant had restored the goods to the plaintiff, and the plaintiff had accepted them, that fact might be shown in mitigation of damages; but it would not justify the tort nor absolve the tort feaser from the legal consequences of his wrongful act. — 3 Zabriskie, 347.

    Where one of the partners is absent from the country at the time of making an assignment, and the firm is insolvent, the resident partner can make an assignment of the property for the benefit of creditors.— Pars. on Part. 165-6 and note; 1 Brook. 436; 1 Doug. 488, 499 ; 5 Cranch, 289;

      4 Day, 428; I McCord's, Law, 519; 3 Paige, 523; 8 Leigh, 4 Va. 515; Watts, (Pa.) 22; 6 Watts & Sergt. 300.

    The assignment was signed by George E. Swinscoe, by his agent Henry H. Swinscoe. Ho objection was made to the reading of the same on the trial because the authority of the agent to sign the principal’s name was not shown, and defendants could not for the first time raise the objection on final argument.
    By allowing the assignment to be read without objection they waived the question as to Swinscoe’s authority to act as agent for his son.— 8 Mich. 350; 5 Pick. 219; 4 Mass. 254; 13 Conn. 155; 8 N. H. 338; 10 Id. 167; 12 Id.

   Cooley Ch. J.

The plaintiff in error, as sheriff of the county of Bay, by virtue of a writ of attachment against the goods and chattels of Henry H. Swinscoe, levied upon a stock of goods which Shearer claimed as assignee of the firm of Swinscoe & Son, composed of said Henry H. Swinscoe and George E. Swinscoe. On the trial, the assignment was offered in evidence, and it appeared to be a general assignment from Henry H. and George (E. Swinscoe, constituting Shearer trustee for the benefit of their creditors, and preferring the claims of certain of those creditors to others. The assignment was executed by Henry H. Swinscoe, in his own name, and that of George E. Swinscoe was signed thereto by Henry H. Swinscoe, purporting to act as his attorney. It appeared that, at the time of its execution, 'George E. Swinscoo was at Chicago, Illinois, and had been for about three or four weeks, and no evidence was given to show that he assented to or approved of the assignment, before or after-wards, or that Henry H. Swinscoe had any express authority from him to execute it. Nevertheless the assignment was allowed to be read in evidence without objection.

"When the case went to the jury, the Circuit Judge was requested to instruct them that one partner can not make an assignment of the partnership property, preferring certain creditors, to the exclusion of others, without the assent of the other members of the partnership. This instruction the judge refused to give, stating that the question did not arise in the case.

We think the Circuit Judge was correct in this refusal. The assignment purported to be duly executed by both parners, and was conceded to be properly executed by one of them. Whether the other had executed, depended upon the question whether the party .assuming to sign on his behalf had lawful authority for that purpose. Without such authority, it was claimed that the assignment was void, not only as to him, but also as to the other party who had executed in his own name. On the theory of the defense, the paper was not admissible in evidence, for any purpose, until the authority of George E. Swinscoe to .Henry H. Swinscoe had been proved. Nevertheless, it was allowed to be put in evidence without objection, and without this preliminary proof. We think this must be regarded as a waiver of the right to insist upon such proof, and that the defendant below was too late to raise the objection, for the first time, when the judge was about to give the case to the jury. The proper time to take an objection to the formal proof of a paper, is when it is offered in evidence; and if no objection is then made, and the paper is allowed to be read to the jury, the party offering it is always at liberty to infer that his opponent is satisfied with its due execution, and proposes to raise-no objection on that score.

It further appears from the record, that the attachment was sued out by the firm of Beaty & Fitzsimons; and evidence was given by the defendant, tending to show that their attorney, before the writ was levied, had a conversation with the plaintiff, concerning his rights in the goods, and the liability of the same to be seized on the writ, and that an arrangement was then made between the attorney and the plaintiff, by which defendant was to take possession of the goods, but without removing the same, and that they should be held by the defendant, subject to a future adjustment to be had between the parties in interest; and that they were taken possession of by defendant, under this arrangement. The defendant’s testimony further tended to prove that, after this conversation and arrangement, the plaintiff, the defendant, and said attorney, went together to the store where the goods were; that plaintiff requested one Knox, who was inside taking an inventory for him, to unlock the door, which he did, and that the three then walked into the store* looked about, and the plaintiff then directed Knox, when he had completed his inventory, to deliver the key of the store to defendant, which he afterwards did. The plaintiff, on the other hand, gave evidence tending to show that no arrangement was made by him for a surrender of possession to defendant, except as the plaintiff supposed he was yielding to the superior force of legal process.

The defendant, on this evidence, requested the court to charge the jury, that if they should find that the plaintiff directed his agent, Mr. Knox, to deliver to the defendant the key to the building in which the goods were contained, and expressed no objection to the defendant taking possession of said goods, these facts were evidence tending to prove the consent of said plaintiff to the taking possession thereof by the defendant. The Circuit Judge declined to give this instruction, but did say to the jury, that the circumstance mentioned was a fact to be weighed by them; and submitted it to them as bearing on that question. In this, we think, the Circuit Judge was correct.

When evidence is submitted to a jury, as bearing upon a certain point, it is for them and not for the court to determine whether it tends to establish that point or not. Whether it does so, in their opinion, may depend, not alone upon that particular item of evidence, but upon that evidence considered in its relation to other evidence, which may so far qualify and explain it, that it shall have no tendency whatever to prove the position for which it was offered, and which, if it were the sole evidence in the case, it might appear to establish. The duty to examine, weigh, and compare in these cases is not entrusted to the -judge, and when he is asked to instruct the jury that the evidence tends to prove a certain fact, he is, in effect requested to give a direction to their judgment, which may, if they follow him, overrule and control their own convictions. We think the Circuit Judge submitted this evidence to the jury in the proper manner; and if he had given the instruction requested, he Avould- only have been drawing his own inferences from the evidence, and expressing an opinion on matters lying within the peculiar province of the jury. A party has no right to demand that such instructions be given.

The principal question in the case springs from the fact that the goods, while under the control of the defendant, in pursuance, as the plaintiff claimed, of said attachment levy, were accidentally destroyed by fire. The plaintiff, it appears, held, at the time, insurance policies upon them to their full value, and, after the fire, presented to the insurance companies proofs of the loss, and received pay therefor. TJpon this state of facts it was claimed by defendant, that plaintiff’s position was the same as if he had possessed himself of the goods by replevin; and that he was entitled to recover damages only for their detention up to the time of the fire. The Circuit Judge held differently, and instructed the jury that the plaintiff was entitled to recover the full value of the goods, and he had judgment for the value accordingly.'

It certainly strikes one, at first, as somewhat anomalous, that a party should be in position to legally recover of two different parties the full value of goods which he has lost; but we think the law warrants it in the present case, and that the defendant suffers no wrong by it. He is found to be a wrong doer in seizing the goods, and he can not relieve himself from responsibility to account for their full value except by restoring them. He has no concern with any contract the plaintiff may have with any other party in regard to the goods, and his rights or liabilities can neither be increased nor diminished by the fact that such a contract exists. He has no equities as against the plaintiff which can entitle him, under any circumstances, to an assignment of the plaintiff’s policies of insurance. The accidental destruction of the goods in his hands, was one of the risks he run when the trespass was committed, and we do not see how the law can relieve him from the consequences. If the owner, under such circumstances, keeps his interest insured, he can not be held to pay the money expended for that purpose for the interest of the trespasser. He already has a right of action for the full value of the goods, and he does not give that away by taking a contract of insurance. For the latter he pays an equivalent in the premium, and is, therefore, entitled to the benefit of it, if any benefit shall result. The trespasser pays nothing for it, and is, therefore, justly entitled to no return. The case, we think, is within the principle of Merrick v. Brainard, 38 Barb. 574, which appears to us to have been correctly decided. The plaintiff recovers of the defendant for the Avrong that has been done him in taking his goods; and he recovers of the insurance company a large sum for a small outlay, because such payment Avas the risk they assumed, and for Avhich they were fairly compensated. It is not a question of importance in this inquiry, whether the act of the defendant caused the loss or not: his equitable claim to a reduction of damages, if he could have any, Avould spring from the fact that the plaintiff recovers pay for his property twice; but the answer to this is, that he recovers but once for the wrong done him, and he receives the insurance money upon a contract to Avhich the defendant is in no way privy, and in respect to Avhich his own wrongful act can give him no equities.

We discover no error in the record, and tlie judgment must be affirmed, Avitli costs.

Campbell and Graves JJ. concurred.

Christiancy J. did not sit.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Walter H. Hawkins et al. v. Great Western R. R. Co.

      Common Czrrisrs: Contracts ayainst neyliyence: Line stock. A contract for tlie carriage of live stock which exempts a railroicl company from responsibility for losses and damages uin loafing, unloading, conveyance and otherwise,” whether arising from negligence, misconduct or otherwise, does not exempt them from the necessity of furnishing suitable cars; and the exemptions must be confined to risks in the use of the proper means of transportation which every one is entitled to assume are possessed by a carrying company.
    General words of exemption, when used after a designation of specific exemptions and risks, will bo presumed to include only those of a similar character, unless a different intention is manifest.
    Where, under such a contract, there was nothing to show that the shipper assented to the use of the cars on which his stock was shipped, with adequate means of observation as to their fitness, he was held entitled to expect that the cars used should be reasonably suitable for the business, and to recover for losses if caused by their unfitness.

      Beard April 25th.

      Decided April 28th.

    Error to Wayne Circuit.
    This Avas an action brought against the defendant as carriers to recover damages for an alleged injury to certain horses Avliile in transit on their road.
    The plea Avas the general issue.
    The injury resulted from a defect in the floor of the cars, by means of Avliich the bottom dropped out, and the horses Avere injured. •
    On the trial, the defendant’s counsel introduced in evidence, under objection, a shipping bill, signed by tlie plaintiffs, containing, among other conditions, that
    “Tlie oAvner of tlie Avitliin-mentioned animals undertakes all risk of loss, injury, damage and oilier contingencies in loading, unloading, conveyance and otherwise, whether arising from the negligence, default or misconduct, gross or culpable, or otherwise, on the part of the Railway Company’s servants, agents or officers.
    “ When- free passes are given to persons in charge of animals, or to their owners, or to the consignees named on the way bills, or either of them, it is only on the1 express condition that the railway company are not responsible for any negligence, default or misconduct, gross, culpable or otherwise, on the part of the company or their servants, or of any other person or persons whomsoever, causing, or tending to cause, the death, injury or detention of persons with such free passes, or of such animals, and that whether such passes are used in traveling by any regular passenger train, or by any other train whatever.”
    The defendant’s counsel also introduced in evidence, under objection, a free pass delivered to plaintiffs, and signed by them, containing the substance of the foregoing Conditions.
    There was some evidence tending to show that the defendants did not examine the cars in which the said horses were placed immediately previous to their shipment.
    The court charged the jury that said shipping bill and passes constituted a special contract, and that the plaintiffs were bound by the conditions on the back of said passes and shipping bill; that by the terms of said special contract the defendant was exempted from the use of ordinary care, and also from liability for gross negligence in the transportation of the stock of the plaintiffs.
    The jury, under said charge, brought in a verdict for defendants.
    The following, amongst other errors, ivas assigned:
    “That the court instructed the jury that said shipping bill and passes constituted a-special contract, and that the plaintiffs Avere bound by the conditions on back of said passes and shipping bill; that by the terms of said special contract the defendant Avas exempted from the use of ordinary care, and also from liability for gross negligence in the transportation of the stock of the plaintiffs.”

      Moore & Griffin, for plaintiffs in error.
    The court below instructed the jury that the special contract exempted the defendant from liability for gross negligence.
    The testimony shows that this negligence consisted in not providing suitable cars.
    The terms of the contract are not sufficiently clear and explicit, and are not intended to cover this defect; they are “All risks of loss, injury, damage and other contingencies, in loading, unloading, conveyance and otherwise.”
    This contract is carefully framed, and language used with reference to the carrying of live stock.
    Many of-the risks attendant upon the transportation of live stock are such as do not exist as to merchandise.
    The word “ conveyance,” we think, has reference to many of those risks which are peculiar to the transportation of live stock, and which commence after the transportation begins..
    This same injury, in all probability, would have happened had the car remained stationary.
    “Risk of conveyance” does not reach this injury.
    Every exception of risk must be contained in the contract itself, in express terms. No implication will be made in favor of the carrier. — Angelí on Gar. §226, a.

    But if it be said that the word “conveyance” is broad enough to cover all risks accruing after the loading, and that this particular injury would not have happened were it not for the kicking and movement of the animals; and that this is one of the very risks incident to the carriage of live stock, and intended to be reached by the terms of the contract, we reply,
    The carrier undertook to carry live stock, and not merchandise.
    There is an implied warranty that a carrier undertaking to furnish vehicles for a certain purpose will provide suitable ones.— 5 East. 428; 6 How. 382; 14 Barb. 524; 29 Id.

      132, 602; 26 Id. 641; 5 Sandf. 180; 7 Hill, 533; 4 Seld. 375; 24 N. Y. 222, 181, 1197; 25 Id. 442.

    The question of permitting a common carrier to exempt himself, by special contract, from liability for gross negligence, has been presented to the highest courts of judicature of several states, and the doctrine rejected.— 30 Penn. State, 242; Amer. Law Reg. Jan. 68, 172; 19 Ill. 136; 38 Id. 354; 15 La. An. 103; 4 Ohio, St. 362; 10 St. 65; 31 Me. 228; 28 N. J. 180; 4 Hurl. & Nor. 327; 2 Redf. on Rail. 82-98; 3 Pars. on Cont. 247.

      Wm. Gray and L. Cochrane, for defendant in error.
    The first count in the plaintiffs’ declaration alleges that the defendant received the horses to be by it “safely and securely carried and conveyed,” etc. This is the legal effect of the contract imposed upon the railway company, in the absence of any special agreement. The second count states that the defendant, as such “common carrier a¡s aforesaid,” i. e. “as a common carrier of goods and chattels for hire, to wit, from Paris, in the Province of Canada, to the city of Detroit,” etc. had the care and custody of certain horses for a certain hire and reasonable reward. Notwithstanding this count does not allege that the property was received for the purposes of carriage, it will be presumed that such was the object. Upon this presumption the law conclusively raises a second, that the horses were to be “safely and securely” carried, unless the latter is rebutted by evidence that such was not the contract. To carry safely and securely is the gravamen of the obligation imposed upon the railroad. The special contract offered by the defendant directly negatives the positive allegations and necessary implications of the plaintiffs’ declaration.— 13 Q. B. 345, 352.

    We submit, therefore, that it was properly introduced under the general issue.
    There is no doubt special contracts may be made by common carriers with consignors, to relieve the- former from the responsibility which the law has imposed upon them. 6 Mich. 243, 263.

    The court will assume that the defendant paid, and the plaintiffs received, a consideration for the release here claimed. 16 Mich. 79.

    The form used in this case does not differ substantially from that formerly used by the English railways for the same purpose.— 13 Q. B. 345, 348; 10 C. B. 453, 463; 7 Excheq. 707.

    In the case before this court the sole substantial difference is that this contract is more specific than the. English contracts. — 4 Hurl. & Nor. 327.

    Gross negligence is in many of the works spoken of as fraud. But in numerous instances it is entirely consistent with good faith.' — -Echo, on Bail. 71.

    While wep do not contend that a carrier may contract for a right to commit a fraud upon his employers, we do maintain that the latter may insure against the negligence, even gross, of the former, when unaccompanied by fraud; that consequently, before the latter .can call upon the defendant to exonerate himself, he riiust show 'such a state of affairs as would raise at least a presumption of fraud actually committed, and intended to be committed.
    In this case nothing of the kind appears.
   Campbell J.

Plaintiff shipped, certain horses over the railway of the defendants, under a contract which provided that the owners took all risks of loss, injury, damage, and other contingencies “in loading, unloading, conveyance, and otherwise, whether arising from the negligence, default, or misconduct, gross or culpable, or otherwise, on the ptirt of the railway company’s servants, agents, or officers.” The contract contained a further provision that, when free passes were given to persons in charge of animals, or to their owners or consignees, the company should not be responsible for any negligence, default, or misconduct, gross, culpable, or otherwise, on the part of the company or their servants, or of any other person or persons, causing or tending to cause the injury or detention of the animals.

The injury in this case occurred by reason of the bottom of the carriage giving way. Whether this was caused by a defect in the carriage, or by reason of some other neglect or fault in the course of the transit, does not disiinctly appeal’, as the court below found that the company was not liable at all under this agreement. But, from the course of the argument, we infer that defective cars caused the damage.

In Shaw v. The York and North Midland Railway Co. 13 Q. B. 347, under a contract Avhich exempted the carrier from liability “for any injury or damage (however caused),” the court intimated a doubt whether the plaintiff might not have alleged a duty to furnish proper and sufficient carriages, and that the loss happened from a breach of that duly, notwithstanding-the terms of the contract, Avhich Avere fully as broad as those in the present case.

Unless some shoAving Avas made that the plaintiffs, with proper opportunities of observation and Avith notice of their actual condition, assented to the use of the cars on which their horses Avere shipped, Ave think they Avere entitled to expect that reasonably proper cars would be furnished. While there is in one clause of the contract an exception of eArery default, the fair inference is, that this language Avas used as referring to defaults in the particulars specified in the previous articles, Adz: “loading, unloading, conveyance, and otherwise,” and in matters of a like kind. The rule is usually applicable, that Avhere no intention to the contrary appears, general Avords used after specific terms are to be confined to things ejusdem generis with the things previously specified.— American Transportation Co. v. Moore, 5 Mich. S68. We think it Avould not occur to any one executing such a contract, that it had reference to any risks except such as Avere likely to arise from the nature of the freight, from delays, and from casualties and defaults occurring during the loading, transportation and unloading and delivery. It would not lead him to contemplate risks not incident to the ordinary transaction of business, and arising from negligence in no way likely to be incurred by a company using ordinary care in the management of its affairs. He would fairly be led to assume that the company, possessing the usual facilities for the carrying trade, of which cars are the first and indispensable means, merely sought exemption from risks incurred in the employment of those means.

If the cars in question were unfit for the purpose to which they were applied, and if that unfitness iras of such a character as to imply fault in the company or their agents for allowing them to be used, we think they are responsible for the damages which accrued from their use. As the case shows, there was evidence tending to show neg.ligence, and as the negligence' may have consisted, and is assumed to have been, in the use of unfit cars, the case should have gone to the jury upon this point.

The judgment should be reversed, and a new trial granted.

Cooley Ch. J. and Graves J. concurred.

Christiancy J. did not sit.


text:
    Robert Inkster v. Elizur Carver.

      Taxation of costs. Under the Law of 1SG7, p. 84, regulating taxed cost?, held as follow?:
    1. That the statute allows a trial fee for each trial of a cause, whether the jury did or did not agree, and however often the cause may be tried.
    2. WluTC a nonsuit, entered at a previous term, is set aside upon payment of costs, and nothing further done with the case at that term, no term fee is allowab'e, as the cause can not be regarded as one which was regularly on the calendar for hearing at the ¿erm; it not being in condition to be heard till the nonsuit was set aside.
    8. The actual expense of making a transcript of the record for the printer, whore the rules require printing, is a proper charge, if made in good faith for that purpose; notwithstanding it may have been made by some other person than the clerk of the court.

      Heard and decided April 28th,

    Case made from Wayne Circuit.
    Judgment having been rendered in this cause, the ease came before the court for argument on an appeal from taxation of costs by the clerk.
    Several items in the bill of costs having been disputed, the court gave the following construction to the law of 1867, p. 84, regulating taxation of costs.
    1. ' That the statute allows a trial fee for each trial of a cause, whether the jury did or did not agree, and however often the cause may be tried.

      % Where a nonsuit, entered at a previous term, is set aside upon payment of costs, and nothing further done with the case at that term, no term fee is allowable, as the cause can not be regarded as one which was. regularly on the calendar for hearing at the term: it not being in condition to be heard till the nonsuit was set aside.
    3. The actual expense of making a transcript of the record for the printer, where the rules require printing, is a proper 'charge, if made in good faith for that purpose; notwithstanding it may have been made by some other person than.the clerk of the court.

      II. M. Cheever, for plaintiff.

      Ward (& Palmer, for defendant.


author: Per Curiam.

text:
    Thomas Mitchell v. Lewis Shuert.

      Power of Supreme Qovrt: Judgment against sureties on Appeal Bond. When judgment is taken against sureties in the Circuit, upon an appeal bond, and the judgment against the principal defendants is removed to this court and increased in amount, this court has no power to make the judgment against the sureties correspond with the increased amount. The unlertakmg is special and statutory. The statute contains no saving clause in case of removal of the judgment to this court.

      Heard and Decided May 12th.

    Case made from St. Joseph Circuit.-
    Motion for judgment against sureties on appeal bond.
    Mitchell sued Shuert before a justice, and recovered judgment.
    Shuert appealed to the Circuit Court, giving the usual appeal bond with sureties.
    In the Circuit Court Mitchell recovered judgment for a less amount, and, on motion, he then took judgment against the sureties. Mitchell then brought the cáse to this court for review on case made.
    In this court it was held that the Circuit Court erred in not giving judgment for the full amount rendered by the justice.
    Mitchell then moved for judgment in this court against the sureties on the appeal bond, which had been given before the justice.

      J. B. Shipman, for plaintiff.

      Mason & Allison, for defendant.
   Per Curiam.

We do not think we have authority to render judgment against ’ the sureties as requested. Their undertaking is special and statutory, and the statute provides precisely what consequences shall follow a breach. At his option the appellee may take judgment against them on motion and without process. This is a wide departure' from the common law course of proceeding, and such a judgment could not be sustained, except that the party must be understood to have agreed to it by his contract. But the statute also says the sureties shall be discharged unless execution is issued within thirty days. It contains no saving for the case of the removal of the judgment to this court, and we have no power to make any. The statute in regard to cases made, it is true, provides that we may render such judgment as the court below should have rendered; but this, we think, must be understood of the judgment upon the issue between the parties. The law giving summary remedy against the sureties belongs to a class which can not be extended by construction.

Motion denied.


text:
    Hubbard Smith et al. v. The Fort Street and Elmwood Avenue Railway Company.

      Bears May 1st.

      Decides May 12th.

    Error to Wayne Circuit.
    The court held that the points involved in this case are fully covered by the decision in the case of Schneider v. The Tort Street and Elmwood Avenue Railway Company, 15 Mich. 74.

      Wm. Gray, and T. Romeyn, for plaintiffs in error.

      E. C. Hinsdale, for defendants in error.


text:
    The People ex rel. Shimer v. The Circuit Judge of Branch County.

      Mandamus: When will not lie to vacate order for nezo trial. Where the affidavit, on a motion for a new trial, contains something upon which the Circuit Judge is called upon to exercise his judgment, it becomes a matter addressed to his discretion, and this court has no authority to issue a -mandamus to direct him to rescind his action.

      Heard and decided May 13th.

      Mandamus.

    This is an application for - a mandamus to compel the Judge of Branch Circuit to vacate an order made and entered -by said Circuit Court February 14, 1868, setting aside the judgment and granting a new trial in the case of John. Shimer v. Allen Turner and Catharine A. Turner, on the ground of newly discovered evidence. That case was an action to recover damages for the breach of covenants of seizin, and free from incumbrances, contained in a deed executed by the defendants to plaintiff June 2, 1866, conveying the southwest one-quarter of the southwest one-quarter of section twenty in township six n. of r. one w. in Clinton county, in this State. The breach shown was a deed from the Auditor General to Porter K. Perrin, for the taxes of 1863, dated November 24, 1865. The defendant’s counsel to rebut this gave evidence tending to show that the taxes assessed on said premises for the year 1863 had been paid, and therefore said deed was void. Judgment was rendered for the plaintiff for $558.51 and costs, and afterwards a motion for a new trial was made on the grounds of newly discovered evidence and of surprise, which motion was based on the affidavit of said Allen Turner. A new trial was granted.
    It was claimed in behalf of the relator that the affidavit on which the order for a new trial was based, entirely failed to make any showing of newly discovered evidence, and therefore the order made by the Circuit Judge was entirely without authority.

      E. O. Fuller, for the motion.
   Per Curiam.

We are of opinion that there was not an entire failure of any showing, but on the contrary there was something upon which the Circuit Judge was called upon to exercise his judgment; and that being so, the question whether a new trial should be granted is one addressed to his discretion, and the Supreme Court has no authority to review his conclusion, and compel him by mandamus to rescind his order.

Motion denied.


author: Graves J. ' Campbell J.

text:
    Albert Walcott v. The People.

      Constitutional law: When law imposing a tax shall specify the object to which it applies. The provision of the Constitution — Art. Ik, $lk — which directs that every law imposing a tax shall specify the object to which it is to be applied, does not require this to be done in the act itself, where the application of the tax is distinctly made by the Constitution and can not be altered by the legislature; and, inasmuch as all specific taxes are thus appropriated by the Constitution, a law imposing such taxes is not void for omitting to provide for their appropriation.

      Constitutional law: Limitation of power to continue specific taxes. The express power given by the Constitution — Art. Ik $10 — to continue specific taxes authorized by existing laws, and to impose specific taxes on corporations thereafter created, does not limit the right of specific taxation to such cases, but leaves the legislature at liberty to use it for such other purposes and branches of business as may be found to render it expedient.

      Constitutional law: Tax on express companies: Commerce. The act requiring express companies — Sess. Laws 1867, p. 195 — to pay a specific tax of one per cent, on the gross amount of current business within the State, is not repugnant to that clause of the Federal Constitution which gives to Congress the power to regulate commerce among the several states.

      Heard April 28th.

      Decided May 13th.

    Error to Wayne Circuit.
    This action was brought to recover from the defendant below, and who was an agent of the American Express Company, the penalty for an alleged violation of the provisions of Act No. 140, Session Laws of 1867, entitled “An act to regulate express companies and their agents, and individuals prosecuting the express business, not incorporated by the State of Michigan.”
    The cause was tried without a jury, and the court found the following facts:
    “ That the American Express Company, so called, is engaged in the state of Michigan in transacting an express business and forwarding packages and property by express for hire.
    That said company is not a corporation, but is a co-partnership, having its principal office or place of business in the city of New York, and is engaged in transporting for hire, freight and valuable parcels between the several States of the United States, and between said States and the adjoining Dominion of Canada, through the State of Michigan, and between said State and the other States of the United States and Dominion of Canada to and from said State.
    That said company has, for the purpose of transacting its said express business within this State, and between places in this State and other States and foreign countries, many agents and offices, and also valuable property, personal and real, at various points and places throughout the State, upon which said property taxes for State and local purposes are annually levied, assessed and collected, as upon other property of equal value in this State.
    That from the first day of February, A. D. 3868, to the day of the filing of the declaration in this cause, the defendant has- acted as an agent and officer of said company in the transaction of its said business in the State of Michigan, and as such did daily, within said county of Wayne, perform the acts mentioned in' said_ declaration, to wit: forward one or more parcels by express without complying with the provisions of the act mentioned and referred to in said declaration, and that said company did not comply with the provisions of said act.
    That said defendant did not, nor did said company, or auy one in their behalf, file the statement and procure the certificates mentioned in section one of said act, or pay the tax specified in section two of said act, declared by said act to be a condition precedent to the issuing of such certificates, although they were willing and offered to file the statement required by section one of said act.”
    Whereupon the court found, as a matter of law, that the defendant was liable to the plaintiff in manner and form as declared against, and rendered judgment in favor of plaintiff against defendant in ten dollars damages and costs of suit to be taxed.

      Moore é Griffin, and A. Manclell, for plaintiff in error.
    1. No recovery of a penalty for a violation of the provisions of said act can be had, because said act does not distinctly state the object to which the specific tax mentioned in section 2 is to be applied. — Art. 14 § 14, Const.

    This provision of the constitution is imperative, and not directory.— 36 Barb. 178; 17 N. Y. 235.

    2. Article 14, § 10, Const. evidently contemplates that no specific tax shall be collected except from “banking, rail road, plank road, and other corporations hereafter created.”
    The special enumeration of these organizations on which a specific tax may be imposed excludes all others.
    This section further' contemplates that such tax shall be imposed only on “corporations,” and we think on corporations created by the Legislature of Michigan.
    It is admitted that the American Express Company is not a corporation, but simply a copartnership, or more properly, perhaps, a joint-stock company. It has none of the privileges or exemptions of a corporation from taxation for municipal or local purposes.

      The specific tax in this case is on the “business” of the company, and wo think in contravention of the constitution."
    3. Again: Specific taxes are rather odious, as they operate unequally in reference to other property. The convention did not intend to increase, but rather to restrict them: Hence — Art. 14, § 11 — “The Legislature shall provide an uniform rule of taxation, except on property paying-specific taxes.”
    Taxation operates upon a community, or upon a class of persons in a community, and by some rule of apportionment.-4 N. Y. 419.

    A common burden should be sustained by common contributions, regulated by some fixed general rule, and apportioned according to some uniform rates of equality.— 5 Dana, 28; 9 Id. 513.

    If, however, the Legislature is still at liberty to impose specific taxes upon all kinds of property and upon business, they may evade and defeat this uniform rule, and make particular interests bear all the burdens of the state: the very evil the convention intended to provide against.
    A specific tax upon the “ gross receipts ” of the company on their current business, performed entirely within this state, would be a tax upon business, prohibited by implication by the constitution; but sought to be authorized under the new constitution, so called, recently submitted to the people. Art. 11, § 12.

    The personal and real property of the company in Michigan already shares its burden of taxation wherever situated for state, municipal and local purposes.
    4. What is the construction of subdivision “Fourth” in section 1 of said act?
    It does not seem to contemplate as gross receipts anything not earned in Michigan. The language is “Gross receipts on their current business in this state.”
    What is their “business?” Plainly carrying goods and other property, and their earning and receiving pay; in implo language, “freight.”

      To tax portions of freight earned in New York, Ohio, Canada, or any other state or foreign country before the package reaches Michigan, would be an interference with commerce, and in violation of Sul. 3, Art. 1, § 18, Const. U. S. which provides that the Congress shall have power “to regulate commerce with foreign nations and among the several states, and with the Indian tribes.”
    As the company reside in New York, that State may impose the same, or even a higher and prohibitory rate of taxation for the earnings accruing over the whole line.
    IVe think this claim of state power to tax the business of the company passing through the state, or commencing in Michigan and terminating in another state, or commencing in another state and terminating in Michigan, is settled adversely by numerous decisions of the Supreme Court of the United States, commencing with 9 Wheat. p. 1; 12 Id. 419; 5 Cond. R. p. 570.

    5. If the specific tax be illegal, no penalty can be imposed for a neglect or refusal to pay it; and as the payment of the tax is declared by the second section of said act to be a “condition precedent” to the issuing of the annual certificate or license by the State Treasurer, the tax being illegal, the penalty will not be enforced.
    It is admitted that the company were willing and offered to file the statement required by section one o£ said act.

      Win. L. Stoughton, Attorney General, for the People.
    The plaintiff in error was prosecuted for a violation of the provisions of an act of the legislature, entitled “An act* to regulate express companies,” etc. approved March 27, 1867 S. L. 1867, p. 194.

    The tax imposed by this act, is resisted upon the ground that it is unconstitutional.
    1. Legislative enactments are not to be disregarded, unless they are clearly, plainly,, and palpably unconstitutional. It has been repeatedly held that to warrant the court in setting aside a law as unconstitutional, the case must be so clear that no reasonable doubt can be said to exist.— 6 Cranch, 128; 12 Wheat. 294; 5 Mich. 252; 1 McCook's (0.), 82.

    The taxing power is one'of the inherent powers of the government, and belongs appropriately to the legislative department, and, when not restrained by direct constitutional prohibitions, it is unlimited as well as undefinable in its objects, uses and extent. — 24 Barb. 441-481; 4 Peters, 514; 1 Mich. 438.

    3. There is nothing in the constitution of this State which restricts the legislature from imposing this tax. Art. 14, § 1, provides that specific taxes shall be applied to the payment of the interest' on the educational funds, and the principal and interest of the State debt. Sec. 10 provides that “The State may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes from banking, railroad, plank road, and other corporations hereafter created.” This is not a restriction; it takes away no power of the legislature. “An act of the legislature, not prohibited by express words of the constitution, or by necessary implication, can not be declared void as a violation of that instrument. — Sears v. Cottrell — above cited. *
    The constitution can not be construed so as to mean more than the words naturally imply. There is no room for construction and none is allowable. — Sedg. on Con. and Stat. L. 227.

    Under this provision of the constitution specific taxes have been imposed upon— Brokers and Exchange Dealers, 1 C. L. 331; Hawkers and Peddlers, Id. 333; Telegraph Lines, Id. 422; Bridge Companies, Id. 548; Manufacturing Companies, Id. 580; Musical Societies, Id. 588; Telegraph Companies, Id. 675; Foreign Insurance Companies, S. L. 1861, 43, 1865, 261.

      The remaining sections of Art. H, are as follows:
    “ Sec. 11. The legislature shall provide a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law.
    Sec. 12. All assessments hereafter authorized shall be on property at its cash value.
    Sec. 13. The legislature shall provide for an equalization, by a State board, in the year 1851, and every fifth year thereafter, of assessments on all taxable properly, except that paying specific taxes.
    Sec. 14. Every law which imposes, continues, or revives a tax, shall distinctly state the tax and the object to which it is applied; and it shall not be sufficient to refer, to any other law to fix such tax or object.”
    The tax referred to in Sec. 14 is a direct tax on property, and not a specific tax. — Sedg. on Stat. and Con. L. 557; 3 Scam. 127; 12 Mass. 252.

    Any other construction would lead to the most absurd and unreasonable results. “No text imposing obligations is understood to demand impossible things.” Sec. 1 of the article, prescribes how specific taxes shall be applied, and places the whole matter beyond the power and even the knowledge of the legislature.
    It would be ruinous to the finances of the state, and would invalidate the legislation for the last twenty years, in relafcidh to specific taxes. We earnestly submit that a construction of the constitution which has been acquiesced in, and acted upon for that time, and has become inseparably connected with the financial policy of the state, ought not to be disturbed; even if erroneous, which we do not admit, it fairly comes under the rule of stare decisis. — 7 Mich. 12-23.

    And, so far as this particular tax is concerned, “the object to which it is to be applied,” is stated as fully as is possible.
    4. It can not be claimed that the provisions of this act are in conflict with Art. 1, § 8, Sul. 3 of the Const. of the United States.

      The express system is of recent origin. It was unknown at the time of the adoption of the constitution, and does not come within the definition of commerce as used in that instrument.— Vol. 7 H. Am. Gyc. 876.

    Transportation by water is a mere incident to the business. Railroads and public highways, are and have been principally used.
    These companies charge extraordinary tariffs; require and receive extraordinary protection and privileges, and there is no reason why they should not pay a fair share of the public burden.
    The power delegated to congress does not necessarily exclude all power on the part of the state to regulate any commercial topic. Where subjects are in their nature local, they are not taken away from the control of the state by the grant of power in the constitution to congress. —12 How. 299; 18 Id. 71; 21 Id. 181

   Graves J. '

This suit was instituted by the defendants in error to recover a penalty given by the act approved March 27, 1867, entitled “an act to regulate express companies and their agents, and individuals prosecuting the express' business, not incorporated by the State of Michigan.” The cause was tried without a jury, and the court found that the American Express Company, so called, was engaged in this state in transacting an express business, and forwarding packages and property by express for hire; that said company was not a corporation, but a copartnership, with its principal office or place of business in the city of New York, and was engaged in transporting for hire freight and valuable parcels between the several states of the United States, and between such states and the adjoining Dominion of Canada, through the State of Michigan, and between said state and the other states of the United States and Dominion of Canada, to and from said state; that said company, for tlie purpose of transacting such express business in this state, and between places in this state and other states and foreign countries, had many agents and offices, and also valuable property, personal and real, at various places throughout the state, upon which property taxes for state and local purposes were annually assessed and collected as upon other property of equal value in this state; that from the 1st day of February, A. D. 1868, to the day of the filing of the declaration in this cause, the defendant had acted as an agent and officer of said company in the transaction of its said business in this state, and, as such, had daily, within the County of Wayne performed the acts mentioned in the declaration, to wit: Forwarded one or more parcels by express, without compliance with the provisions of said act, and that said company had not complied with the provisions of said act; that neither said defendant nor said company, or any one in their behalf, had filed the statement and procured the certificates mentioned in section one of said act, or paid the tax specified in section two, and declared by the act to be a condition precedent to the issuing of such certificates, although they were willing, and offered to file said statement.

The court further found as matter of law that the defendant was, upon such facts, liable to the people as alleged, and accordingly entered judgment in favor of the latter, and against the former, for ten dollars damages and costs of suit; and that judgment is now before this court upon a writ of error.

It is maintained on the part of the plaintiff in error that the act in question is invalid, and this view is supported by arguments drawn from several sources. It is contended in the first place that the law is not in compliance with that portion of A rt. H, § 1j,of the state constitution, which requires every law imposing a tax to state distinctly the object to which it is to be applied.

Whenever air act of the legislature is assailed as being unconstitutional, it is essential, in the first instance, to ascertain tlie meaning of those provisions of the law and constitution, supposed to be incompatible. If, upon due consideration, it is evident that both can not stand together, the result is instant, certain and decisive, and the inferior authority yields to that which is supreme. If, however, the inquiry leaves the mind in doubt as to whether the statute is in derogation of the constitution, a just presumption comes in aid of the legislative judgment and overcomes the doubt.

The second section of the act in question requires the company, association or individual conducting the business specified, to pay into the state treasury a specific state tax of one per cent, on the gross amount of current business in the state, and that the treasurer shall give his receipt therefor.

It is provided by Art. H, § 1, Const, that “ all specific state taxes, except those received from the mining companies of the Upper Peninsula, shall be applied in paying the interest upon the primary school, university and other educational funds, and the interest and principle of the'state debt, in the order herein recited, until the extinguishment of the state debt, other than the amounts due to educational funds, when such specific taxes shall be added to and constitute a part of the Primary School Interest Fund.” It is apparent that the fundamental law has irrevocably prescribed the application of all such specific state taxes as that imposed by the act in question, and that the legislature could in no manner change the purpose or alter the destination of the tax.

The application is not only unalterably fixed, but is specifically defined, and nothing could be added by legislation but an idle repetition of the language of the constitution. The statute distinctly describes the tax and directs its payment into-the state treasury, and the constitution then takes the subject from the sphere of legislative discretion, and decrees the uses to which the money must be appropriated.

It inevitably follows that by the conjoint operation of the statute and constitution, the object to which the tax would be applied is made most distinct and certain, and no language in th.e act could make it more so. I think it may well be doubted whether the men who framed the constitution, or the people who adopted it, proposed to require a thing so vain and fruitless as the re-enactment of the constitutional provision in every law imposing a tax like that in question. The whole course of legislation, since the adoption of the constitution, has been upon the theory that no such necessity existed, and the opinion is believed to have been almost universal, that the section quoted was never intended to have the application now suggested.

The constitution itself, in continuing several laws imposing specific taxes, leaves the appropriation of the taxes to the standing provision of Sec. 1 already quoted. — Art. lb, § 10, also § 1 of schedule.

It is not unreasonable to suppose that Sec. lb was not intended to apply to cases in which the object of the tax should be found distinctly and unalterably fixed by the constitution itself.

I think, therefore, the court is not at liberty to hold the act to be invalid on the ground stated.

It is also insisted by the counsel for the plaintiff in error, that the constitution intended to limit the action of the legislature in the imposition of specific taxes to corporations created by the laws of this state, and that a tax on business is prohibited by implication. The first branch of this objection is attempted to be supported by the supposition that the enumeration in Art. lb, § 10 of certain corporations as subject to the imposition of specific taxes, is a negative upon the right thus to tax any other organizations; and as giving color to the idea that the bodies so made liable were intended to be domestic corporations.

As it is not pretended that the express company is a corporation, it is only material for the present purpose to inquire whether the power to impose a specific tax is confined to corporations.

An examination of the power of the state government to raise a revenue, must always involve several considerations of the first importance.

As the necessities of the state, under all circumstances, could never be accurately measured in advance, nor the resources of the community, in all their possible changes and relations, be anticipated or conjectured, it would seem reasonable to suppose that a people, so well versed in political affairs as those of this state, would not purposely withhold from their own government the power to supply the public wants by any eligible method of taxation, or deny theidselves the right of selection among the rightful objects of it. A contrary view would presuppose the deliberate establishment of government, and the equally deliberate denial of a power which might be ultimately necessary to enable it to accomplish the ends of its institution. That a course so extraordinary had been pursued, could never be admitted, except upon the clearest evidence.

The characteristics which distinguish incorporated from unincorporated companies, afford no sufficient reason for imputing any purpose to make the former subject to specific taxes and exempt the latter from them.

In number, amount of capital, and extent of operations, the latter hold a much larger place in the field of business enterprise than the former occupied half a cjpntury since.

Upon turning to the constitution, it will be observed that the first clause of sec. 10, before mentioned, declares expressly that the state may continue to collect all specific taxes accruing under existing laws. Several of the laws thus referred to, were of long standing, and imposed taxes upon business. Many of them applied to individuals, and not to corporations. The clause cited had the effect to “continue” these taxes.

It Avas a constitutional declaration in favor of specific taxes on the business of individuals, in so far as the same were then required by existing laAvs.

It determined that there was no objection in principle to the imposition-of a specific tax on individual occupations, and no reason is perceived why the date of the law should change the principle. If, in the absence of constitutional prohibition, the state had the inherent right in 1850 to tax business and professions, it must have possessed the same right in 1851 and in 1867.

It is, however, insisted that the constitution inhibits the imposition of specific taxes, except on corporations created subsequent to the constitution. This proposition is supposed to be maintained by the second branch of Art. 14 § 10, of the Constitution.

The whole section reads as follows: “The state may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes, from banking, railroad, plank road, and other corporations hereafter created.”

It is not denied that the first branch of the section is permissive and not prohibitory; that it was intended as an express authority to continue the collection of specific taxes under the constitution to the extent then allowed by law, and it can not be denied that the clause standing with it, and which is relied upon by the plaintiff in error, as excluding the right to impose specific taxes, by subsequent laws, on anything except corporations, is conceived in language appropriate to a grant of power and not to a limitation. The position of the passage, and the admitted scope of the. paragraph associated with it, and the natural and ordinary meaning of the language concur in giving an interpretation opposed to inhibition.

To this it may be said that, considering the nature and object of a state constitution, there could have been no necessity for any such specific grant of legislative power; since, according to well settled principles, the particular authority would have been as clearly within the competency of the legislature without any such provision, as with it; and that, therefore, the clause in question must have been intended to accomplish some other object than simply to confer the power to tax the organizations there described.

'Without pausing to consider how far the doctrine that the legislative power of the state is unlimited, except as restricted by the fundamental law, may be pushed in any case, and especially in its application to a constitution containing much of administrative detail, it may be admitted that the clause in question was not needed .simply as a grant of power, and was intended to effectuate another purpose.

In seeking for that purpose, we should look for it in some object which would be plainly satisfied by words of formal grant, and which would involve no incongruity or strained construction.

It is well understood that at a very early day the legislatures of several of the states assumed to grant charters of incorporation for banking and other purposes, and to insert stipulations upon various grounds, exempting the institutions wholly or in part from subsequent taxation.

This practice became at length so common, and operated so extensively in withdrawing corporate property from the burdens to which individual wealth was subject, that the powers of the courts were many times invoked against it.

The decisions of the tribunals were not entirely harmonious, but the great weight of authority favored the opinion that in the absence of any constitutional provision assuring the right to tax, the legislatures were empowered to stipulate for the exemption; and that if they did so, the charters would be in the nature of contracts, and stand protected by that clause of the federal constitution which forbade the passage of any law impairing the obligation of contracts.

The controversy on -this subject was in progress when the present state constitution Avas framed and adopted.— Seymour v. The Toton of Hartford, 21 Conn. 481, and cases cited; Gordon v. The Appeal Tax Court, 3 How. 133; Ang. and Ames on Cor. § 478, and cases; State Bank of Ohio v. Knoop, 16 How. 369.

This subject was one which must have engaged the attention of the convention, and it is reasonable to suppose that the necessity was not overlooked for some simple provision designed to assure the right to tax all corporations thereafter created. As the federal constitution! would protect legislative agreements for exemptions from taxes in those cases only, in which the legislature, under the state constitution, could bind the state on that subject, it would follow that a constitutional provision ordaining the right to tax without qualification, would render nugatory the attempt of any legislature to bind the state by such an agreement. A contract by the legislature to exempt from taxes, in the face of a provision securing to the state the absolute right to tax, could derive no support from the constitution of the Union. The clause in question in the state constitution is perfectly adapted to secure the object. It assures the right without qualification, and it may, with reason, be concluded that such was the chief purpose of -the provision. Such interpretation removes the difficulty involved in the view taken by the counsel for the plaintiff in error, and fairly meets the necessity of the case. To avoid misapprehension, however, it is proper to observe in this connection, that no opinion is expressed as to whether the clause in question would or would not permit any other application than that which is here accorded to it. The case calls for no such opinion.— Commonwealth v. The People’s Five Cents Savings Bank, 5 Allen, 428, 431, 432, 437, 438.

The proposition that the tax imposed by the act is prohibited by constitutional implication can not be supported. Taxes of a similar kind, and standing on the same principle, are recognized as valid, and their collection authorized by the first clause of the tenth section, hereinbefore quoted; and the provision requiring a uniform rule of taxation, expressly excepts property paying specific taxes. The counsel for the plaintiff in error maintained that the tax authorized by the act is intended to be imposed on “business,” and not upon property, strictly so called.

This is undoubtedly correct, and it is the same in substance, as declaring that the tax belongs to a class of impositions for revenue, upheld in every state in the union. The constitution does not forbid a tax of this description, and there would seem to be no room for doubt as to the power of the legislature to impose it.— Commonwealth v. The People’s Five Cents Savings Bank, before cited; People v. Detroit and Pontiac R. R. Co. 1 Mich. 458.

In the absence of any provision clearly evincing an intention to abandon the power in question, the purpose to relinquish it ought not to be presumed. It is not to be supposed that a matter of such vital consequence would have been left to turn on vague conjecture or shadowy implications.— Providence Bank v. Billings, 4 Peters, 561.

It is further urged on the part of the plaintiff in error, that the statute requires an interference with commerce, and is, consequently repugnant to that clause of the federal constitution which gives to congress the power to regulate commerce with foreign nations and among the several states. As that constitution is the supreme law, any state constitution or statute in contravention of it must of course be void.

Hence, any state legislation, though warranted by the state constitution, will be invalid, if opposed to the constitution of the Union. And whether a particular act is founded on an express declaration of power in the state constitution, or on the original legislative authority inherent in the state government, the result will be the same, if the act is found to be in conflict with the constitution of the Union.

These observations are induced by the consideration that, in several instances, particular state laws and local ordinances, based upon express provisions of state constitutions, have been questioned as opposed to the above mentioned clause in the federal constitution, and the subject of their validity has been thoroughly considered by the courts.

If we turn to the statute in question, it appears difficult to mistake its scope and object. It does not purport to be a mere regulation of commerce, but assumes to impose a tax on a particular kind of business. In order to carry out the object, certain means are authorized, and they appear to be appropriate. As, in many other cases, the law aims to-apportion the tax according to the amount of subject matter on which it is imposed, and ordains the means for ascertaining that amount.

' In all this, nothing is discovered in derogation of the federal constitution.

It is not improper, however, to refer to several cases which seem to place the question in a satisfactory light.

An ordinance of the city of Savannah required that, with certain exceptions, a tax of fifty cents on every hundred dollars should be levied on all goods, wares, and merchandize, not produced in Georgia, which should be sold on commission by any person or persons residing within the limits of the city, and that every such commission merchant should make just and true returns, on oath to the city treasurer, on the first day of January and the first day of May in each year, and, within ten days after making such returns, should pay the specified tax. The ordinance further provided that, if the proper returns should not be made, the treasurer should assess the tax^ and collect the same by distress. One Cummings, a commission merchant, having failed to make the required return, was proceeded against according to the ordinance, and the proceedings were reviewed cn certiorari. It was claimed that the ordinance was repugnant to the before mentioned provision of the federal constitution, but the court, by Berrien, judge, held otherwise, and sustained the ordinance.— Cummings v. The Mayor and Aldermen of Savannah, R. M. Charlton, 26.

By a statute incorporating a railroad company, the legislature of Pennsylvania provided that all freight, except the ordinary baggage of passengers, carried or conveyed over the road, in each year, should be subject to toll or duty, for the use of the state, of three mills per ton per mile.

The Supreme Court of Pennsylvania held, that the act simply furnished a mode of taxing the company according to the magnitude of its business, and was not intended as imposing a tax on commerce, and that the statute was not in violation of the clause in the federal constitution giving to congress the power to regulate commerce.— Pennsylvania R. R. Co. v. The Commonwealth, 3 Grant, 128.

The revised laws of Indiana contained a statute as follows: “Every person who shall, in proper person, or by an agent, vend any merchandize which may not be the product of the United States, without having a license or permit so to do, as is or may be designated by law, shall be fined in any sum not exceeding one hundred dollars.”

One Beall was indicted under this statute for retailing tea without license or permit to vend foreign merchandize, and he rested his defense on the claim that the statute was an infringement of the federal provision before mentioned; but the Supreme Court of Indiana held that the act was authorized and valid.— Beall v. The State, 4, Blackf. 107.

By an act passed in 1842, the legislature of Louisiana ordained that each and every money or exchange broker should thereafter pay an annual tax of $250 to the state, in lieu of the tax theretofore imposed.

One Nathan was prosecuted by the state for the tax, and he insisted that so much of the act as imposed a tax on that part of his business as a broker, which consisted in buying and selling exchange, was in violation of the federal provision as to the regulation of commerce. The Supreme Court of the state' overruled the defense, and maintained the law, and the case was removed to the Supreme Court of the United States. It was there strenuously insisted that the sole business of the defendant was buying and selling foreign bills of exchange, which were instruments of commerce, and that, therefore, the tax was repugnant to the provision' in question, but the federal tribunal affirmed the judgment of the state court. Some portions of the opinion pronounced in this case in the federal court may be appropriately quoted in this connection. The court say: "The right of a state to tax its own citizens for the prosecution of any particular business or profession within the state has not been doubted, and we find that in every state, money or exchange brokers, venders of merchandise of our own or foreign manufacture, retailers of ardent spirits, tavern keepers, auctioneers, those who practice the learned professions, and every description of property, not exempted by law, are taxed.” “Money is admitted to be an instrument of commerce, and so is a bill of exchange; and, upon this ground', it is insisted that a' tax upon an exchange broker is a tax upon the instruments of commerce. What is there in the products of agriculture, of mechanical ingenuity, of manufactures, which may not become the means of commerce? And is the vender of these products exempted from state taxation, because they may thus be used? Is a tax upon a ship, as property, which is admitted to be an instrument of commerce, prohibited to a state ? May it not tax the business of ship building the same as the exercise of any other mechanical art? And also the traffic of ship chandlers and others, who furnish the cargo of the ship and the necessary supplies? There can be but one answer to these questions. No one can claim an exemption from a general tax on his business within the state, on the ground that the products sold may bo used in commerce.” “A cotton broker may be required to pay a tax upon his business, or by way of license, although he may buy and sell cotton for foreign exportation.”

“The taxing power of a state is one of its attributes of sovereignty. And where there -has been no compact with the federal government, or cession of jurisdiction, for the purposes specified in the constitution, this power reaches all the property and business within the state, which are not properly denominated the means of the general government, and, as laid down by this court, it may be exercised at the discretion of the state. The only restraint is found in the responsibility of the members of the legislature to their constituents. If this power of taxation by a state within its jurisdiction may be restricted beyond the limitations stated, on the ground that the tax may have some indirect bearing on foreign commerce, the resources of a state may be thereby essentially impaired. But state power does not rest on a basis so undefinable. Whatever exists within its territorial limits in the form of property, real or personal, with the exceptions stated, is subject to its laws; and also the numberless enterprises in which its citizens may be engaged. These are subjects of state regulation and state taxation, and there is no federal power under the constitution which can impair this exercise of state sovereignty.”— Nathan v. The State of Louisiana, 8 How. 73.

The practice of the state governments, from the time of the establishment of the federal constitution, has been conformable to the principles here declared, and instances of the practice are very numerous.

They may be found scattered through the statutes of the different states, and are often brought to notice in the law reports.

The following are a few additional cases in which similar revenue regulations have been considered.— Barnaby v. The State, 21 Ind. 450; Weister v. Hade, 52 Penn. 474; Neto Orleans v. Turpin, 13 La. An. 56; Tatem v. Wright, 3 Zab. 429; The State v. City Council of Charleston, 4 Rich. 286; Padleford v. Mayor of Savannah, 14 Ga. 438; Neto Orleans v. Clark and Brisbin, 15 La. An. 614; State of Louisiana v. C. Lathrop, agent, 10 La. An. 398; Fire Department v. Noble, 3 E. D. Smith, 440; Fire Department v. Wright, 3 E. B. Smith, 453; People v. Imlay, 20 Barb. 68; The State v. Branin, 23 N. J. (3 Zab.) 484; Berks Co. v. Bertolet, 13 Penn. 522; Raguet v. Wade, 4 Ham. 107; Eagan v. County Court, 3 Har. & McHen. 169; Coite v. The Society for Savings, 32 Conn. 173, and cases; The Parker Mills v. Commissioners of Taxes, 23 N. Y. 242; The State v. Gazlay, 5 Ham. 14; People v. Thurber, 13 Ill. 554.

Upon Ml consideration, it is believed that the' act of 1867 is not opposed to the federal constitution on the ground stated, and as this disposes of all questions arising under the assignment of error, I think the judgment below should be affirmed with costs.

Cooley Ch. J. concurred.

Campbell J.

The only question in. this case is whether the statute requiring all express companies to pay a specific tax on the gross amount received on their current business in this state within the previous year, is valid.

I agree that, if such business not conducted by corporations can be taxed specifically, the law is not rendered invalid by not directing how the tax shall be appropriated. The constitution leaves nothing to be done on this subject, as it appropriates all such taxes directly.

But I think such taxes are not' authorized by the constitution, and that the provisions in. the article on £l Finance' and Taxation” are so explicit as to exclude any inference on the subject. And if any argument is derivable from our history upon the construction of this language, I think it is not such as -is drawn by my brethren.

Where a constitution is entirely silent upon the subject, a legislature has as much right to resort to specific taxation as to any other, so -long as it follows the cardinal principle underlying all taxation that it shall be based on some rule, and not be an arbitrary exaction. Such taxes are in no sense odious merely because specific. Under our former constitution, which contained no restrictions, specific taxes were imposed upon several classes of business, either by way of license or percentage, where a tax on property would not have reached the case, and also upon corporations of various kinds, whore it was deemed more likely, on the whole, to operate wisely than the ordinary system of local assessments. In some cases this was provided for by charter, and in others it was done by statute, where there was nothing in the charter to the contrary. It had been settled many years before by the Supreme Court of the United States, that where such provision was made by contract, it was binding, but that where a charter was silent on the subject, the legislature could do as they pleased. Both of these doctrines were recognized in the case of The People v. The Detroit and Pontiac R. R. Co. 1 Mich. 458, and treated there, as elsewhere, as principles not open to serious controversy. The constitution of 1850, instead of keeping silence, which would have implied full legislative authority, covered the whole ground of taxation by specific euactment. And in these provisions, as it seems to me, the intent is too clear to permit any conjecture as to policy to have any great weight. Nor do I think the reasons suggested by my brethren, for these provisions, consistent either with contemporaneous history or with the context.

The very first section of the article on “Finance and Taxation” relates to specific taxes. It appropriates them towards the principal and interest of the state indebtedness until all is paid except that due to the educational funds. Then they arc all payable into the school fund; and, to save any doubt on this subject, the state is bound, by the same section, to pay all its expenses, as well as any other deficiency in revenue, by an annual tax, which must, of course, be levied by the ordinary system of assessment. Here, then, we have, in the outset, a provision which (except by a subsequent modification in favor of the Upper Peninsula— Art. 19, §<?,) prevents any portion of these specific taxes from contributing towards any of the ordinary burdens of the state, or of town, county, or other local necessities. And it is notorious, and appears throughout the entire debates of the convention, that instead of desiring these specific taxes to be multiplied at the expense of the local interests, the feeling was all the other way, and, except so far as prevented by contract, the legislature, while restricted in imposing specific taxes, is authorized to abolish them entirely.

Section ten is in these words: “ The state may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes from banicing, rail road, planlc road, and other corporations hereafter created.” These words are permissive in form, and are such as are usually interpreted as excluding what is not mentioned, by the express power granted. The words were needless and senseless as mere grants of power, because the power would have existed without them. They can only be made sensible by regarding them as restrictive. But when we go further, we can see why this form of permission was used. The two next sections provided the general rule to which these were to form the exceptions, and thus rendered the whole group sensible and harmonious.

Section 11 declares that “ the legislation shall provide an uniform rule of taxation, except on property paying specific taxes; and taxes shall be levied on such properly as shall be provided by law.”

And.section 12 declares that “All assessments hereafter authorized, shall be on properly at its cash value.”

Taking these sections together, and reading them according to their natural construction, the conclusion seems unavoidable that taxation by an assessed valuation of property must be the rule, and specific taxation the exception. If specific taxes were allowed to be used for the same public purposes with other taxes, there might be force in the suggestion that by prohibiting them, except in a few cases, the state cuts off a possible source of revenue, which, in times of emergency, it might be desirable to retain. But the argument is almost as strong the other way, when it is considered that practically nearly every levy of specific taxes cuts off a portion of revenue that would be otherwise available. But the argument of inconvenience can not, in either direction, weigh against the express language of the constitution; nor is it admissible, upon any theory whatever, to import unnatural meanings where the natural reading is consistent.

There was a manifest reason for allowing specific taxes to be continued under existing laws, for some had been fixed by contract, and others imposed for conformity, and the few remaining classes were mostly, if not entirely, upon occupations of a peculiar character. But in regard to these latter, no provision is made for future legislation, very probably because it would be somewhat difficult to open the door without opening it too widely — while the propriety of specific taxes on corporations, whose property is fluctuating and not always accessible, is plain enough, and justice would seem to require that new ones might be put on the same footing with the old.

But it is not plain to my comprehension how a permission, granted to the legislature to levy specific taxes on corporations, can be construed as designed, merely or chiefly, if at all, to prohibit them from entering into arrangements to relieve them from taxation. It is certainly a very awkward and indirect way of expressing an idea, which, if entertained at all, would, I think, have been deemed important enough to be made clear. It would have been quite easy to say in so many words, that the legislature shall not be at liberty to relieve, or to bind itself to relieve future corporations from specific taxation, and this would have left no ambiguity.

But there are other considerations which are not without weight on this subject. In the first place, I believe there has never been a case of prominence, if there has been a case at all, in- any court, where the contest has been by a corporation to get rid of specific, and to subject itself to general taxation. There have been cases where they have relied on their charters to preserve them from any but specific taxation, and others where they have sought to avoid all taxation. But a condition merely preventing a legislature from giving up specific taxation, aud yet not preventing them from making it infinitesimal, could certainly serve no good purpose.

In the next place, by this constitution, no new corporation can be chartered at all by special act, and all general laws are made subject to alteration, amendment and repeal; so’ that the mischiefs which might possibly have arisen under a system of special charters, could not easily arise, and it is very certain no such apprehension was ever current at the time.

Moreover, the power of exemption, which is absolutely unlimited except by the’ common sense of the legislature, is entirely inconsistent with any such idea. Multitudes of corporations, before and since the adoption of this constitution, have been exempted from taxation. Charitable and educational, as well as religious, corporations have always been thus exempted. Taxes are only to bo laid “on such property as shall be prescribed by law” These exemptions have been enforced repeatedly by this court. And in the case of the People v. Auditor General, 7 Mich. 84, it was held, upon an elaborate constitutional argument, by the 'whole court, that such exemption might be the subject of contract.

I am, therefore, of the opinion that this law is invalid, because it lays a specific tax prohibited by the constitution.

It is also claimed that this tax is invalid under the constitution of the United States, so far as it applies to the carrying business between this state and other states or countries. I think this claim is also correct. The regulation of external commerce is not under state control. The right to carry it on is not a right derived from state authority. It has been the uniform doctrine of the Supreme Court of the United States, that a .state can not prohibit such commerce, directly or indirectly, and that it can not tax that which does not depend upon its authority. This doctrine, which was first asserted in McCulloch v. Maryland, 4 Wheat. 316, rests upon the clear and intelligible basis, that the full sovereignty of a state extends only to that “ which exists by its own authority, or is introduced by its permission”; that the power to tax includes the power to make taxation prohibitory, and that what a state has no right to regulate and control completely, it has no right, therefore to tax. Accordingly, in addition to the numerous cases which have excluded state taxation of government agencies, there are many decisions inconsistent with similar interference with private commerce. The first of these was the leading case of Gibbons v. Ogden, 9 Wheat. 1, which drew the line between internal and external commerce. Next came Brown v. Maryland, 12 Wheal. 419, which, holding a tax on importers invalid, upon several grounds, adopted on this branch of the argument as conclusive the reasoning in the former case of McCulloch v. Maryland, and abstained from repeating it. And it is somewhat remarkable that, as one reason why an importer could not be taxed as such, the court say that if this could be done, “what should restrain a state from taxing any article passing through it from one state to another for the purpose of traffic, or from taxing the transportation of articles passing from the state itself to another state for commercial purposes ¶” The very case now before us is assumed to be one of the things beyond even a question. In Sinnott v. Davenport, 22 How. 227, and Foster v. Davenport, Id, 244, it was held a state could not compel vessels, engaged in external commerce, to report at state offices, as it liad previously held in the Passenger cases, 7 How. 283, that taxes on passengers were void, as interfering with the freedom of commerce. So in Hays v. Pacific Mail Steamship Co. 17 How. 596, it was held that, steamers owned in New York, and’ running between California and other Pacific ports, could not be taxed in California. And in Almy v. State of California, 24 How. 169, it was held a stamp duty on bills of lading was also invalid. The cases which have held certain taxes valid as not affecting commerce — such as the alien succession tax in Mager v. Grima, 8 How. 490, and the exchange brokers’ tax, in Nathan v. Louisiana, 8 How. 73, have never relaxed the rule where commerce is supposed to be affected; and where the tax is, as here, directly on the carrying trade, no such doubt could arise. As that is the court which will review this case, I do not deem it necessary to consider the decisions of other tribunals, which have possibly taken very changing views on the subject. But in Oliver v. The Washington Mills, 11 Allen 268, the Supreme Court of Massachusetts held that a corporation could not be lawfully compelled to make deductions from the dividends of non-resident shareholders as such, and pay them into the state treasury; and in the Erie Railway v. The State of New Jersey, 4 Am. L. Reg. N. S. 238 the Court of Appeals of New Jersey reversing the judgment of the Supreme Court, held the transit tax invalid for the same reasons. And I feel confident that, while courts may have differed upon the application of these rules, they have very rarely assumed to deny them.

I think the judgment should be reversed.

Christiancy J. did not sit.


text:
    Leander S. Butterfield v. Jacob Seligman.

      Common Counts: Express agreement: Stipulated damages. Where an agreement reciting the receipt of $000 as payment for certain lands, to be conveyed if defendant could make good title, stipulated to pay $625, in case he could not make good title. Held, that the latter sum was in the nature of stipulated damages for the breach of an express agreement, and could not be recovered under the common counts; but the contract must be declared on specially.

      Heard May 1st.

      Decided May 13th.

    Error to Oakland Circuit.
    This suit was brought by defendant in error against Butterfield, to recover the sum of $625 and interest thereon, which sum had been paid by said Seligman to said Butter-field, in pursuance of a- special written agreement) and for which Butterfield was to convey an interest in certain lands, but which he failed to perform.
    The declaration was upon the common counts, and to which a bill of particulars was annexed, setting forth the said agreement, to wit:
    “ $600.00
    Pontiac, February 38, 1865.
    Received of Jacob Seligman, six hundred dollars, in payment of one -third of my undivided one - eighth interest in the following described property: One hunched' and sixty acres on Black River, known as the Danfield farm, and one hundred and twenty acres in the town ofiiLakeport, on Lake Huron. And I agree to give said Jacob Seligman a deed for one-third of my undivided one-eighth (1-8) interest in the above described property, if the title of the the same is-found to be good. The above property was contracted for on the 16th day of February, 1865, by J. C. Gooclsell, J. D. Millis, Leander S. Butterfield, and five others; and in case a good title can not be had of the above named property, I am to return to J. Seligman six hundred and twenty-five dollars.
    L. S. BUTTERFIELD.”
    Ou the trial of the cause, the plaintiff testified that he did, ou the 28th day of February, 1865, agree to purchase of said defendant, a certain interest in certain lands in St. Clair County, and paid to said defendant the sum of six hundred and twenty-five dollars, on that day, and took from him a receipt or agreement in writing'. The said receipt was then offered in evidence; but the counsel for the defendant objected to the same, on the ground that the evidence was not admissible, under the declaration. The counsel for the plaintiff stated that the plaintiff only sought to recover back the money paid to defendant, and did not seek to claim damages for any breach of the agreement. The court admitted the evidence, subject to objection.
    The plaintiff further offered proof tending to show that in July, 1805, and before the commencement of suit, be demanded a deed of the land described in the receipt or agreement; that defendant neglected to give a deed; that he then demanded the money back, and defendant refused to pay it. The plaintiff also offered proof to show that he actually paid six hundred and twenty-five dollars, and the statement of the receipt of six hundred dollars was a mistake. The above evidence was admitted, under objection.
    Evidence was then offered by the defendant, tending to show that on the 25th day of July, 1865, the plaintiff demanded of the defendant a deed, and defendant replied that he would furnish one when J. C. Goodsell opened his store, to which the plaintiff agreed.1 Defendant also offered proof to show that said Goodsell did not open his store until the 26th of July. £
    The plaintiff offered proof denying any such agreement.
    The defendant offered no proof showing that he had title to said land, or that the title of the same had been found to be good, nor did he offer any proof tending to show that a good title could be had of said property.
    The cause was submitted 'to the jury, and the counsel for the defendant asked the court to charge the jury that if they found that the plaintiff, on the 25th of July, 1865, extended the time for the delivery of the deed required by the contract, he had no right of action until the time allowed had elapsed. The court declined so to charge, but charged and instructed said jury that the contract expressing' no time for the making and delivery of the deed, the same must be done within a reasonable time: That if the time had elapsed, an agreement to extend the time must be based upon a sufficient consideration: That the said contract being in writing, any extension of the time for the performance of the same, by parol, would be void by the statute of frauds: That no consideration was claimed, or proven. To which said several charges made by said court, the defendant then and there excepted.
    The jury, rendered a verdict for the plaintiff.

      A. G. Baldwin, for plaintiff in error.
    The rule is well settled, that if a party wish to recover upon a written instrument, except a note, he must count upon it specially.— 4. Conn. 265.

    By the terms of the writing in this case Butterfield was to pay nothing, except in case a good title could not be made of the property.
    The declaration contained no reference to the writing, and it was necessary to count specially upon the contract to entitle him to recover.— 8 Johns. 438; 1 Tyler, 182.

      M. B. Grofoot, for defendant in error.
    The plaintiff in error contends that Seligman can not recover said money under said declaration, but that he must declare specially on said receipt or agreement.
    1. The object of pleading is to apprize the opposite party of the ground of his claim, so that there can be no misapprehension as to what matters are to be litigated on the trial; and there certainly could have been no misapprehension in this case after plaintiff in error received a copy of the bill of particulars.— 3 Mich. 460.

    2. Actions of assumpsit on money coimts are to be encouraged in all cases where the defendant is obliged, by equity and justice to refund or pay money which he has received, belonging to the plaintiff. — 3 Mich. 661; 8 Id. 133; 6 Wend. 284.

    3. Money paid under a written agreement which the defendant is unable or unwilling to perform, on his part, may be recovered under the common counts in assumpsit for money had and received, etc.— Chitty’s Pl. and cases cited, 353; Chitty on Cont. 622; 1 Caines, 47; 2 Esp. 639; 1 Starkie, 65; 7 Term, 181; 1 Id. 133.

    In this case the contract had been broken, and ceased to be binding by reason of the laches of said plaintiff in error, and there was then due from Butterfield to Seligman the sum of $625, and the interest from the time the contract was broken.
   Campbell J.

Plaintiff below sued upon the common counts, and on the trial was allowed to recover upon proof of a special written agreement, reciting the receipt of $600 as payment for certain lands, which defendant agreed to convey if he could make good title, and if he could not make good title, then he was to return to plaintiff $625.

This was an attempt to recover for the breach of an express contract, and there is no principle which can allow its introduction in evidence for the purpose of recovering what it agrees to pay, and yet permit it to be treated as thrown out of the case after it has served its purpose. If there was any cause of action, it was upon the writing which the parties had seen fit to make the evidence of their contract, and the case does not come within any of the exceptions to the rule requiring such agreements to be declared on specially. The contract was not one where nothing remained to be done except paying the price for some work, or service, or commodity furnished under it. The condition was one sided, and claimed to have been broken, and the sum recoverable was nothing more nor less than stipulated damages.

The action was improperly brought, and the judgment must be reversed and a new trial granted. The other questions become immaterial as the issue stands.

Cooley Oh. J. and Graves J. concurred.

Christianoy J. did not sit.