text:
    BROWNSON v. ROY. SAME v. MARTIN.
    1. Landlord and Tenant — Assignment of Rents — Receivers— Conflicting Rights.
    Where rents yet to accrue are assigned to secure the payment of a claim, a subsequent conveyance of the premises, under the order of the court, to a receiver, does not destroy the right created by the assignment, so as to entitle the receiver to the rents as against the assignee.
    2. Same.
    Rents not yet due may be assigned withouirtransferring to the assignee the title to the premises, and the assignee, after notice to the tenants, may collect the rent as it becomes due.
    3. Same.
    An assignment of future rent is not ineffectual because made after the expiration of the occupant’s lease, where the parties have continued the existence of the tenancy, and treated the assignment as operative.
    4. Same — Bona Fide Purchasers.
    A receiver of property, having a conveyance under order of court, cannot claim the rents thereafter accruing, as against an assignee thereof who has given notice to the tenants, on the ground that he had no notice of the assignment.

      Error to Wayne; Carpenter, J.
    Submitted April 10, 1903.
    (Docket No. 29.)
    Decided June 30, 1903.

      Assumpsit by Robert M. Brownson, receiver of Herman A. Strassburg, against Helen Roy, and also against Lucy J. Martin, for rent. From judgments for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      McBryan & Brownson {Henry B. Graves, of counsel), for appellant.

      Edwin Henderson, for appellees.
   Moore, J.

These cases were commenced in justice’s court. They were appealed to the circuit court. The judge directed a verdict for the defendants. The plaintiff has brought them here by writ of error.

The trial judge, in directing a verdict, stated the questions involved as follows:

“The plaintiff is the receiver of Herman A. Strassburg. These are suits for rent. The facts are as follows:
“In September, 1901, the plaintiff called on each of the defendants, who were occupying as tenants under a lease from Herman A. Strassburg, and notified each of them that he was the receiver appointed by the court, and demanded of them the rent for the premises which they were occupying. Each paid him the month’s rent then due (being for the month of August, just passed), and promised to pay him the rent thereafter accruing. Inasmuch as the title of Mr.. Strassburg was determined by foreclosure proceedings which ended that title on the 1st of November, the rent involved in this suit is the rent for the months of' September and October.
“ The defense interposed is that Herman A. Strassburg, on the 26th day of October, 1899, assigned the rent in question to his mother by written assignment, which assignment is in evidence, and immediately thereafter the defendants in these cases, who were then tenants, were notified of the assignment. Thereafter the rent was collected by said Herman A. Strassburg, as agent of his mother, and turned over to her. The rents for September and October, 1901, involved in this suit, were likewise collected by said Herman A. Strassburg, as agent for his mother, and turned over to her. The explanation of the defendants as to their promise to pay the plaintiff is that they supposed that this meant the right of Mrs. Strassburg to collect the rent had also been terminated. * * *
“It is contended by the plaintiff that the assignment of rents being unlimited in time, and there being no outside oral agreement changing its effect, it was effective only so long as the relation of landlord and tepant actually existed; that the conveyance by Herman A. Strassburg to the receiver, under the order of the court, and the subsequent agreement to attorn to Mr. Brownson, the plaintiff, created the relation of landlord and tenant between the plaintiff and defendants, and terminated the relation of landlord and tenant between Strassburg and the defendants; that this rendered the assignment in question thereafter altogether ineffectual; and that it has no force against the right asserted by the plaintiff in this case. I am bound to say that this argument is one that deserved most serious attention, and I am not sure but what it is sound. It does not, however, seem tp me that, looking at the purpose which this assignment was intended to serve (i. e., to secure to Mrs. Strassburg, the mother of Herman A., something to be applied on the payment of her claim),— that it is difficult to recognize the right as existing on the part of her son, by voluntary conveyance by himself (and this certainly can never have greater force than a voluntary conveyance), to terminate that right. He has assigned rent to secure her rights. Is it consistent with that assignment that he can, by voluntary act of his, without her consent, put an end to it, and altogether destroy that right created by the assignment ? It seems to me not.
“ It is insisted, also, on the part of the plaintiff, that, as I understand the contention, rent cannot be assigned separate and apart from the title. In other words, that rent not yet due cannot be assigned without transferring to the assignee some title in the property, by which the assignee himself can enforce the collection of the rent.
“ In the case of Kane v. Clough, 36 Mich. 436 (24 Am. Rep. 599), — a decision rendered by Judge Cooley, and concurred in by his associates, Justices Graves, Camp-BELL, and Marston, — it was decided that where one was working for another, doing piecework, but without any definite contract for the continuance of his employment, he could assign the wages to become due, and that that assignment would be effectual against a subsequent garnishment. Judge Cooley, in the course of his opinion, says:
‘ * ‘An officer may assign his salary, though removable at any time. Brackett v. Blake, 7 Metc. (Mass.) 335 (41 Am. Dec. 442). In Pennsylvania an assignment which professes to transfer a debt to arise for wages not yet earned, against any one by whom the assignor may thereafter be employed, is held to be ineffectual, even after the wages are earned. Jermyn v. Moffitt, 75 Pa. St. 399. In New Hampshire it is decided that wages to become due may be effectually assigned, provided there is at the time an existing contract under which they are to be earned. Garland v. Harrington, 51 N. H. 409. The like conclusion is reached in Connecticut. Hawley v. Bristol, 39 Conn. 26; Augur v. Packing Co., Id. 536. The distinction between the cases in which the wages are not earned under a contract existing at the time of the assignment, and those in which they are, is said to be that “in the former the future earnings are a mere possibility, coupled with no interest, while in the latter the possibility of future earnings is coupled with an interest, and the right to them, though contingent and liable to be defeated, is a vested right.” Low v. Pew, 108 Mass. 347, 350 (11 Am. Rep. 357). But an assignment of demands having no actual existence, though invalid at law, may be valid in equity as an agreement, and take effect as an assignment when the demands intended are subsequently brought into existence.’
‘‘ In the case of Preston Nat. Bank v. George T. Smith Middlings Purifier Co., 84 Mich. 364 (47 N. W. 502), an assignment of valid outstanding accounts was held effectual by the Supreme Court.
“In my judgment, these cases go quite as far as the defendants’ contention requires. I think there are ways in which the assignee in such a case can enforce his claim, not, perhaps, by summary proceedings, inasmuch as he has not the title; but it seems to me there would be no difficulty whatever in his maintaining an action, even at law, to recover rent after it is earned, against the tenants. The assignment having been made, and the tenants having notice of it, the rent, after it becomes due, can be collected, it seems to me, by the assignee. The fact that ever’y right that the landlord might have to collect it is not open does not impair the effect of the assignment.
‘ ‘ The plaintiff also urges that the assignment is ineffectual because, by its terms, when carefully considered, it does not apply to the rent in question here. This assignment was made more than a year before the rent in question became due, and the written lease, which was at that time in existence, had, in accordance with its terms, expired. * * * The evidence shows that the parties actually continued their relations under, this lease; they were practically tenants holding over; and, as claimed by the plaintiff, I think it is probable that the relation existing between them was that growing out' of a tenancy from month to month. It is a rule of law, and applicable to documents of this informal character, that the constraction which the parties themselves actually put upon them by their conduct will have great weight in determining their meaning. Inasmuch as all the parties immediately concerned in this assignment (i. e., Mr. Strassburg,- his mother, and the tenants) construed this and treated this assignment as operative, I do,not think that the plaintiff in this case csin insist upon its receiving a different construction, unless his point that he took his title without notice can be sustained.
“It is insisted by the plaintiff that inasmuch as he obtained a deed of this property from Mr. Strassburg, executed under the order of the court, containing no reservations which affected these leases in question, and having no actual notice (and I am bound to say he had no actual notice), whatever rights Mrs. Strassburg may have had, they do not in any way impair the validity of his title. It is to be borne in mind, in considering this question, that an examination of the writings in the office of the register of deeds would have disclosed no transfer of title to Mrs. Strassburg. My attention is called by plaintiff’s counsel to the case of Steel v. De May, 102 Mich. 274 (60 N. W. 684). In that case, after certain leases had been executed, they were assigned to the complainant, Robert M. Steel, as security. Without notice of this assignment, either actual or constructive, — no record thereof being made in the register’s office, — the defendant acquired title to the property. It is held by the Supreme Court, under these circumstances, that the defendant’s title was in no way affected by the assignment of the leases to the complainant. The court say-:
“ ‘ We think that, while such possession of the lessees would be notice of their rights, it would not be notice that the title of De May had been incumbered by the assignment of the leases reserving rent to himself.’
“ It will be noticed that in that case the tenants presumably had no notice of this assignment; at least, the rent was still payable to, and doubtless received by, their former landlord. In this case Mrs. Strassburg has done all that she could do to give notice of her rights, by notifying the tenants, and by collecting the rent in the manner it was collected. This case, too, differed from that in this important particular: In that case complainant’s rights, whatever they may have been, were most clearly an interest in land. There he had an assignment of the leases, which were kept off the record. Here is an assignment of rent, which I do not think, strictly speaking, is an interest in land. While I must confess to much doubt upon this question, I am inclined to the opinion that Mrs. Strassburg having done all she could do; having notified these tenants that thereafter the rent must be paid to her; they having treated this notice as valid, — I am inclined to think that the law will sustain her rights. The plaintiff in this case, being the receiver appointed by the court, having only the title which was given him by deed executed under the court’s order, can only claim such rights in this property as Mr. Strassburg himself could have enforced.”

After giving full consideration to the briefs of counsel, we are satisfied the trial judge made a proper disposition of the case. We deem it unnecessary .to add to what was said by him, further than to cite two cases which we deem in point: Perrin v. Lepper, 34 Mich. 292; Kelly v. Bowerman, 113 Mich. 449 (71 N. W. 836).

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Carpenter, J., did not sit.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    GEORGE COLLIN CO. v. McLEOD.
    Accounting — Appeal—Evidence.
    A decree on an accounting was affirmed, under the evidence.
    Appeal from Montcalm; Davis, J.
    Submitted April 8, 1903.
    (Docket No. 4.)
    Decided June 30, 1903.
    Bill by the George Collin Company against Dan McLeod, Jay C. Newbrough, Vernon H. Smith, and Hal H. Smith to enjoin a suit at law and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      N. O. Griswold, for complainant.

      V. IT. & H. H. Smith, for defendants.
   Hooker, C. J.

The complainant is a corporation, and its principal place of business has been at Greenville. For several years it carried on a lumbering business at Mar-tiny, in Mecosta county; defendant McLeod having general superintendence. The business included a store. Defendant Newbrough was complainant’s bookkeeper at Greenville at one time, while defendants Smith are McLeod’s counsel. Complainant’s business operations were suspended at Martiny in 1895 or 1896; defendant McLeod being left in charge. He claimed a balance of about $1,500 to be his due on account from the complainant, and this led to differences which culminated in his ari’est on the charge of larceny, and the issuance of a search warrant for property which the complainant claimed that he had concealed. He was acquitted on the trial. This was followed by an attachment, in which McLeod was plaintiff, whereupon complainant filed the bill in this case for an injunction to stay the action at law and for an accounting. The other defendants are charged with confederating with McLeod, and with having and'withholding books and papers belonging to the complainant. There seems to be little justification for making them parties, and we see nothing to have prevented the trial of the differences between complainant and McLeod in the attachment suit. The defendants answered, the cause was heard upon the merits, and the bill was dismissed. It is before us upon appeal, and the principal questions relate to a few items of the account. The questions raised are all questions of fact. We have examined the record, and conclude that the testimony justified the result reached by the circuit judge. It would be profitless to discuss the testimony.

The decree is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    BEARD v. HOFFMAN.
    1. Married Women — Liability fob Goods Purchased.
    A married woman’s promise to pay for furnishings of a house occupied by herself and husband is not operative as to purchases previously made.
    3. Same — Identity of Accounts — Evidence.
    Evidence reviewed, and held to show without dispute that the account sued on was the same as that on which judgment had been obtained against defendant’s husband; rendering the submission of that question to the jury reversible error.
    Error to St. Clair; Thomas, J.
    Submitted April 10, 1903.
    (Docket No. 35.)
    Decided June 30, 1903.

      Assumpsit by Agnes Beard against Wilhelmina Hoffman upon an assigned account for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Stevens, Graham & Stevens, for appellant.

      James L. Ooe (John B. Mcllwain, of counsel), for appellee.
   Montgomery, J.

This action was brought to recover of defendant for furnishings of a house occupied by herself and husband, but the title to which was, during most of the period covered by the bill of particulars, in defendant. A large number of -assignments of error are made, all of which have been examined. We need refer to but two.

The plaintiff’s testimony tended to show that some time in June, 1894, defendant was present in the store of plaintiff’s assignors, and pledged her credit for the goods thereafter furnished. It may be open to some question, on the testimony, as to whether the promise was the personal promise of defendant; but, if we assume that it was, it can only be operative as to the purchases made at that time and thereafter. As the case was submitted to the jury, a recovery was permitted for a small sum unpaid on items furnished in 1893 upon the credit of defendant’s husband, Jacob Hoffman. This was an error, probably resulting from oversight, and, were it the only error, might be corrected by a reduction of the judgment.

But the defendant introduced in evidence proceedings had in justice’s court, upon which a recovery was had by Asman & Beard against Jacob Hoffman for an amount approximating the amount of the present claim. Mr. Asman was a witness for the plaintiff, and testified that, so far as he knew, the firm of Asman & Beard had no other claim against Jacob Hoffman, outside of that involved in the present suit. The circuit judge charged the jury that, if the claim involved in the suit against Jacob Hoffman was the same as that involved in the present suit, it would result that Asman & Beard had elected to hold Jacob Hoffman, and plaintiff could not recover. It may be doubted whether this instruction did not go too far in treating the recovery of a judgment against Jacob Hoffman as an estoppel. However this may be, it was certainly very convincing evidence, as in the nature of an admission that Jacob Hoffman was the original debtor. The vice in the instruction of which defendant has a right to complain is that it submitted to the jury, as a question ■of fact, the question of whether the claim there involved was the same as that involved in this suit. We think this was not an open question. We do not overlook the fact that in the suit in justice’s court the declaration was upon the common counts and upon an assigned account, but there was no evidence before the jury as to any assigned account; and the identity of the claim is not only shown by the testimony of Mr. Asman, above referred to, but by the fact that the account was entered on the books of the attorneys as an account against Mrs. Jacob Hoffman, thus further identifying it with the account in question. Any inference of the jury that Asman & Beard held some other account, to which no one testifies, and of which Mr. Asman had no knowledge, would be a mere surmise, not based on evidence.

For this error the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


text:
    GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN v. McGRATH.
    1. Benefit Societies — Change of Beneficiaries — Vested Rights.
    The fact that the beneficiary named in a mutual benefit certificate is in possession thereof, and has paid the assessments and dues thereon, does not entitle her to object to the designation of a new beneficiary by the insured, pursuant to a by-law ' authorizing him to change his beneficiary at will, particularly where the payments are thereafter kept up by the new beneficiary.

      2. Same — Mental Competency op Insured. '
    A beneficiary in a mutual benefit certificate has such an interest therein that she may contest the mental capacity of the insured to designate & new beneficiary, in accordance with the by-laws of the association.
    Appeal from Wayne; Donovan, J.
    Submitted April 24, 1903.
    (Docket No. 178.)
    Decided June 30, 1903.
    Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen against Anna McGrath, guardian of Lillian Belle McGrath, an infant, Ellen Frank, ■Stephen D. Gutchess, and Anna McGrath, to determine the right to the proceeds of a benefit certificate. From a decree for defendant Frank, defendant Anna McGrath ■appeals.
    Reversed.

      Henry C. Walters, for appellant.

      John H. Powell, for defendant Frank.
   Montgomery, J.

James R. McGrath died on the 2.4th day of February, 1902, and at the time of his death was a member in good standing of the complainant order. His life was insured therein for $2,000. The original certificate was issued to him May 31, 1894, and, in accordance with his application, Anna McGrath, his wife, was designated in the certificate as beneficiary. ‘ On the 24th day of October, 1900, he surrendered the certificate in favor of his wife, and caused his daughter, Lillian Belle, to be designated as beneficiary. On the 26th day of December, 1900, he revoked that designation, and requested a new certificate to be issued .to his mother, Ellen Frank, which was done by the complainant order, and a new certificate ■delivered to him. All changes were made under a by-law permitting a member to change his beneficiary at will.

The evidence tended to. show that Anna McGrath kept up the payments on this certificate from the time it was issued, in 1894, up to the time the surrender was made, and a certificate taken out in the name of Ellen Frank, in 1900. From that time on, McGrath himself paid the assessments and dues, or they were advanced by Ellen Frank. There was also testimony tending to show that Ellen Frank herself paid some of the assessments and dues prior to the change iñ beneficiary, and that she contributed to the support of the deceased after the change was made.'

In the course of the.trial there was testimony tending to show that at the time of the surrender of the second certificate by James R. McGrath, and the issue of a new certificate by the company, James R. McGrath was mentally incompetent. The circuit judge was of the opinion that no one but the complainant could raise that question, and for this reason he excluded proofs which were offered on behalf of defendant Anna McGrath to show mental incompetency, and, upon the conclusion of the testimony, gave the decree in favor of the defendant Ellen Frank; directing that the money due upon this certificate be paid to her. The defendant Anna McGrath appeals “to this court, and contends that she acquired a vested interest in the benefit fund by reason of her payment of the assessments, and in accordance with the agreement made between herself and husband when the certificate was issued; that, while the by-laws of the order authorize a change of beneficiary at the will of the member, they may not be invoked against the contract rights of a third party at the instance of another third party, who had no such rights; and the second contention is that the court was in error in holding that the relation of Anna McGrath to the contract was not such as entitled her to raise the question of the mental capacity of the deceased at the time of the attempted change of beneficiary.

As to the first question, we think no such contract is-shown by this record as precluded the insured from changing his beneficiary in pursuance of the by-laws of the order. The bare fact that the certificate was in the possession of Mrs. McGrath, and that she made the payments, for a time, is not sufficient to give her the right to protest against a change of beneficiary. Nibl. Acc. Ins. & Ben. Soc. § 227; Fisk v. Equitable Aid Union, (Pa.) 11 Atl. 84; Appeal of Beatty, 122 Pa. St. 428 (15 Atl. 861). Particularly is this true, as, after Mrs. McGrath ceased to make payments, Mrs. Frank, under very similar conditions, kept up the payments on this insurance.

We think, however, that the circuit judge was in error in holding that Mrs. McGrath was not in position to raise the question of mental incompetency at the time of the change in beneficiaries. This question was discussed in the. case of Grand Lodge A. O. U. W. v. Frank, ante, 232 (94 N. W. 731). We there held that the beneficiary named in such a certificate has such an inchoate interest' as entitles her to raise the question.

We have had some hesitancy in reaching the conclusion that this case should be reversed, for the reason that, upon the record as it now stands, the evidence of want of mental capacity is very far from convincing; but the circuit .judge appears to have excluded the offer, very broadly made, to supplement this proof by evidence which might have been more convincing. We are therefore unable to •say that no prejudice resulted to the appellant, but we think the case is one in which the costs of litigation should be left to abide the result.

• The decree is reversed, and the case remanded for further proceedings.

The other Justices concurred.


author: Moore, J.

text:
    FIRST NATIONAL BANK OF HANCOCK v. STRINGER.

    Sale — Identity of Seller — Question for Jury — Bills and-Notes — Failure of Consideration.
    Plaintiff held a mortgage on certain wood, given by E. Defendant bought the wood, to be delivered in the future, giving his note to plaintiff for the purchase price. In an action on a. renewal of the note, plaintiff contended that the wood was. • sold by E., plaintiff releasing its mortgage thereon, and applying the amount of the note on E.’s debt; while defendant claimed that he bought the wood of plaintiff. Held, that, if defendant’s claim was true, the defense of a partial failure' of consideration, due to the fact that all of the wood bought was not delivered, was available, but not otherwise; and that the question was a proper one for the jury.
    Error to Houghton; Streeter, J.
    Submitted May 14, 1903.
    (Docket No. 69.)
    Decided June 30, 1903.

      Assumpsit by the First National Bank of Hancock: against James S. Stringer on a promissory note. From á judgment in its favor for less than the amount claimed, on verdict directed by the court, plaintiff brings error..
    Reversed.

      Hanchette & Lawton, for appellant.

      Ghadbourne & Bees, for appellee.

       Applications for rehearing denied September 22, 1903, and March 15. 1904.

   Moore, J.

This is an action of assumpsit on a promissory note for $1,000, dated September 17, 1900, payable on demand, with interest at 7 per cent, per annum, signed by-the defendant, James S. Stringer, and made payable to A. J. Scott, and by him indorsed on the back. The note is a renewal note of several former renewals, the original being given for the sale of cord-wood. The defense is partial failure of consideration. The circuit judge directed a verdict. The plaintiff has brought the case here by writ of error.

The trial judge charged the jury, in part, as follows:

“At the time the original notes were given in this suit, the three parties, Eliassen and Stringer and the bank, by its cashier and one or two of its directors, were all together. There seems to be no question, from the testimony in this case, that each One of the three who were engaged in the transaction had full knowledge of all the facts. Under these circumstances, a bargain is made between the parties, by which Stringer is to purchase 1,500 cords of wood, and he gives his notes and cash for the amount of the 1,500 cords of wood, at the price of $3.25 per cord. The notes are given directly to the First National Bank, and by it, afterwards, according to the undisputed testimony, these notes are applied in reducing the indebtedness of Eliassen to the bank.
‘ ‘ Some of the wood is delivered during that season, and some the next season, until the note in this suit is made, and at that time it appears that there is some 261 cords which have not been delivered. The bank knows it, Eliassen knows it, and Stringer knows it, at the time the note is given; and, though there is change in the form of this note, there is no question made by the parties in this suit, gentlemen, that the change in the form makes any difference; that the note was intended to be given to the bank, just the same as the first notes were. The mortgage which the bank held upon Eliassen’s property is still in force; Eliassen is still engaged in cutting wood and delivering; Stringer is still engaged in the wood business; and these facts are known to all the parties in the case; are known to the bank when this renewal note was given; and the fact is known both to the cashier and to Director Scott, of the bank, that the wood has not been delivered at this time.
“ Now, it appears that subsequent to the delivery of this note to the bank, — the note that is in suit, — before the 'note has been paid, and before the 261 cords have been delivered, the bank forecloses its mortgage upon Eliassen’s property, takes whatever wood he has, and whatever property he has, and makes it impossible for him to go on and deliver the wood. Now, under those circumstances, this note remaining due and unpaid, the bank sues Stringer in this court. The defense made here is that Stringer has a right to insist that there has been a failure, or partial failure, of consideration; that the bank knew all about that; that the money paid for the wood and the notes given for the wood went direct to the bank; and that he has a right to defend here in this suit, and have whatever the shortage amounts to allowed him. I think, gentlemen, that the law gives him that right, and that he can set up that defense.
“Then, what should you allow him if he has established his defense? Under the undisputed testimony, there is a shortage of 261 cords of wood, which was included in the amounts for which the original notes were given, at the price of $3.25 per cord. That, then, would amount to $848.25. You will also allow to the defendant at the rate of 25 cents per cord for wood that was not delivered on the scows, but was hauled, amounting, on the conceded facts, to $46.50. I think the defendant is also entitled to interest on the original notes, or their renewals, which he has actually paid to the bank, to the amount of the proportion thereof represented by the shortage in the wood delivered, which amount of interest is $73.50. There was a claim made and some testimony given as to the delivery of green wood, instead of dry. I think, under all the circumstances of this case, gentlemen, that the defendant is not entitled to any damages on account of the delivery of green wood. There is also a claim made for prospective profits, but I think, under all the circumstances of this case, that the defendant is not entitled to the loss of profits for the wood that was not delivered.”

It is the claim of the plaintiff that the judge should have directed a verdict in its favor. It also assigns error because the disputed facts were not submitted to the jury.

The record discloses that one Eliassen was indebted to the bank in a large amount, and that the bank held a mortgage upon a large share of his property, including a quantity of wood. It is the claim of the plaintiff that defendant purchased of Eliassen 1,500 cords of wood, to be delivered later, for which he was to pay $3.25 a cord, — $500 to be paid in cash, and nine notes to be signed by Mr. Stringer, upon which there should be the name of an indorser; the notes to run directly to the bank, — and that the bank released its mortgage on the wood, and, by direction of Mr. Eliassen, deposited to the credit of Mrs. Elias-sen $430, and canceled Mr. Eliassen’s debt for the difference between that sum and the amount for which the wood was sold. It was the claim of the defendant that he made the purchase of the bank, and that he never received all the wood he bought, and that the note sued upon was a renewal of the original debt, and that he was entitled to the offsets as stated in the charge of the judge to the jury. Each of the parties gave testimony tending to establish their claim. The important question was one of fact, about which the parties disputed. The judge should not have directed a verdict. If the jury found the facts as claimed by the bank, it should have had a verdict for the full amount. On the other hand, if the purchase was made from the bank, as claimed by defendant, then a right result was reached.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    WALLACE v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Carriers — In juries to Stock —Negligence —Questions for Jury.
    In an action against a railroad company by a shipper for damages arising out of defendant’s alleged failure to transport and deliver with reasonable dispatch a car load of hogs, and to water them externally while in transit, by reason of which neglect a number of them died, plaintiff’s witnesses testified that the car was dry the morning after its arrival, and that, if the hogs had been properly showered the day before, it would have presented a different appearance. There was also evidence that for at least two hours the car was left on a side track after a long journey, when it was possible to deliver the hogs promptly to a connecting road. Held, sufficient to-go to the jury on the question of defendant’s negligence in the respects alleged.
    2. Same.
    It appearing that the delay while the car was in charge of defendant was during the most trying time of day, the jury might infer that defendant was responsible for the injury, rather than a connecting carrier to which the car was delivered.
    3. Same — Contract of Shipment — Construction.
    The bill of lading provided that plaintiff was, “at his own sole-risk and expense, to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.” Plaintiff did not accompany the stock, which fact was known to defendant’s conductor. The testimony tended to show that an agent accompanying, the hogs could do nothing in the way of drenching or showering them; and one of defendant’s witnesses testified that it was considered the duty of the persons in charge of a stock train, in hot weather, to see that live hogs were showered when occasion required. The conductor testified that the men in charge of the train operated the appliances for showering, and it further appeared that defendant’s superintendent had issued orders to drench all hogs. Held, that watering the hogs was a part of the actual duty of transportation, and that, as plaintiff’s failure to accompany the car was not the occasion of the neglect of such duty, there was a case for the jury on the question of defendant’s negligence.
    4. Same — Claim for Damages — Time for Presentment — Waiver.
    The bill of lading further provided that no claim for damages-should be made unless filed within five days. Plaintiff’s claim was filed one day late, but was returned to him to have the-freight bill attached, which was done, whereupon defendant declined to settle, but not on the ground that the claim was-filed too late. Held, a waiver of the provision as to time.
    Error to Hillsdale; Chester, J.
    Submitted February 18, 1903.
    (Docket No. 100.)
    Decided June 30, 1903.
    Case by John "Wallace against the Lake Shore & Michigan Southern Railway Company for injury to a shipment of stock. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Dallas JBoudeman, for appellant.

      B. JEJ. Sheldon and G. A. Shepard, for appellee.
   Montgomery, J.

This is an action of negligence; the charge being that defendant; having undertaken to transport a car load of hogs from North Adams to Cleveland, neglected to use reasonable dispatch, and did not deliver them at the stockyards within a reasonable time, and neglected to water the hogs externally while in transit, although the necessity for so doing was known to defendant’s agents. It is charged that from the lack of such watering, and because of such neglect, a portion of the hogs died.

The testimony on the tidal tended to show that the car was shipped from North Adams at 6:49 p. m., and that it was attached to a train at' Hillsdale which had arrived there at 5:50, and was delayed, waiting for the car in question, and left Hillsdale at 8:30. The train was late in leaving North Adams, but, of course, as this was before the car was in transit, the plaintiff can make no complaint of this. After leaving Hillsdale the train went to Bawbeese Lake, and took on ten cars of ice, and arrived at. Hudson at 11:10, and left at 11:50, having taken on one car and set out one. The train next stopped at Adrian, arriving at 12:30 a. m. of the 6th, and left at 1:50, having taken on thirteen cars and left off three. The train arrived at Air Line Junction at 5:25 a. m., where the car containing plaintiff’s hogs was picked up by a through freight, and left at 7:35, arriving at Cleveland at 3:25 p. m., and was set out on the mud track, so called, and taken in charge by the Big Four Road at 5:20; the defendant road having no track running to the stockyards. The defendant’s testimony tended to show that the hogs were showered at Hillsdale, Hudson, Blissfield, Port Clinton, Huron, and Cleveland. Plaintiff offered testimony of witnesses who saw the car on the morning of the 7th, to the effect that the car was dry, and that, if the hogs had been properly showered on the previous day, the car would have presented a different appearance. Plaintiff also offered testimony tending to show that shipments of cars from North Adams, made by the train to which this car was attached, would, in the regular course, reach Cleveland at 10 a. m. to 12 m. of the second day.

It is contended by defendant’s counsel that the testimony conclusively established that there was no unwarrantable delay, and that the hogs were properly watered, and that there should have been a verdict directed on this ground. We think, however, that there was a question for the jury. There was room to find that at least for ab.out two hours on the 6th the car was left on the side track after a long-, journey, and when it was possible to deliver the hogs to the Big Pour promptly, and there was testimony from which- it might be inferred that the hogs were not properly showered on the 6th. It is contended that it does not appear whether the damage occurred while the car was being transported by defendant, or later, while in charge of the Big Pour; but the delay of defendant was during the most trying time of day, and from this circumstance the jury might have drawn the inference that defendant was responsible for the injury.

* The defendant further contends that the court should have instructed a verdict for the defendant for the reason that there was no liability under the contract of shipment which was made. This contract is evidenced by the bill of lading, and contained the following provision:

“That the said shipper is, at his own sole risk and expense, to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.”

The plaintiff, although given transportation for the purpose, did not accompany the stock. The fact became known to the conductor of the' freight train on the 6th. The testimony of defendant’s witnesses tended to show that an agent accompanying the hogs could do nothing in the way of drenching or showering the hogs. One of these witnesses testified that it was considered the duty of the men in charge of a freight train in hot weather to see that live hogs are showered as occasion requires; “I don’t see how the shipper could control the watering tanks.” The conductor testified:

“From my experience as a conductor, I suppose it is true that fat hogs are a kind of live stock that you can’t do anything for in course of transit, except to shower water over them and keep them cool. It is the men in charge of the train who operate those appliances.”

The evidence further showed that orders were issued by the superintendent of the company to drench all hogs. It is difficult to see what plaintiff could have done, had he been with the stock to give notice to defendant’s agent to perform this duty. And it may be said that this duty is a part of the actual duty of transportation. In Heller v. Railway Co., 109 Mich. 61 (66 N. W. 670, 63 Am. St. Rep. 541), it is said :

“Upon ascertaining that plaintiff had no one in charge of the cattle, it would undoubtedly have been the duty of the defendant to unload and water and feed them, when, from any cause, it was unable to transport and deliver them within the usual time.”

In the present case, notwithstanding, this contract, there were certain duties which the defendant owed to the plaintiff ; and, under the charge of the court, it must have been found by the jury that those duties were neglected. The failure of the shipper to accompany the car was, not the occasion of the neglect of these duties, and therefore we think there was a case for the jury on the question of defendant’s negligence.

The waybill contained another provision, that no claim for damages should be made unless filed within five days, and verified by the affidavit of the shipper or his agent. It appears that the claim was filed on the 13 th, or one day late; but it also appears by the testimony of Mr. Miller, who acted for the plaintiff, that the claim was returned to him to have the freight bill attached, and that this was done, and the claim again placed with the defendant’s agents, who, after examination and further correspondence, declined to make payment, but not upon the ground of the claim having been filed too late. We think this constituted a waiver of the right to insist upon time.

The judgment will be affirmed, with costs. ’

The other Justices concurred.


text:
    KROLL v. UNION TRUST CO.
    Banks — Insolvency—Set-Off Against Deposit — Partnership.
    A person gave his note to a bank for money borrowed to put into a firm which was about to be organized. The cashier was told that the money was to be used to buy goods for the new firm, that the receipts from the sale of the goods would be deposited with the bank, and that, when the note should fall due, it would be paid from this deposit. Held, that this did not make the firm liable for the loan, so as to entitle it to have the amount thereof deducted from its balance on deposit with the bank at the time of its suspension.
    Appeal from Wayne; Donovan, J.
    Submitted April 23, 1903.
    (Docket No. 45.)
    Decided June 30, 1903.
    Petition by Elijah Kroll, David Chatlin, and Mayer Davis, copartners as E. Kroll & Co., against the Union Trust Company, receiver of the City Savings Bank of' Detroit, to have a certain note set off against a balance on deposit. From an order denying the petition, petitioners appeal.
    Affirmed.

      Jasper G. Gates and Louis J. Rosenberg, for petitioners.

      Bowen, Douglas & Whiting, for defendant.
   Hooker, C. J.

The defendant is receiver in a proceeding instituted by the State Commissioner of Banking to wind up the affairs of an insolvent bank, in which a -copartnership, comprising the three appellants, had a balance upon deposit when the bank ceased doing business. They filed this petition in that proceeding, asking that the defendant be required to set off against and deduct from the balance aforesaid the amount of a promissory note held by the bank, which was made by one of the petitioners, Mayer Davis. He signed the note ‘ ‘ Mayer Davis & Co.,” that being the name under which he was doing business at the time. It is his claim that he and his •co-petitioners had purchased a stock of dry goods, and needed $500, and that he was authorized by them to borrow it 'for the firm, and that the reason for not giving it in the firm name was that one Simon, the indorser, would not indorse for E. Kroll & Co., but would for Mayer Davis. The cashier did not know this, but was told that this money was to buy goods for E. Kroll & Co., who would deposit the money received from the sale of said goods with the bank, and, when the note should become due, the same would be paid from said money so •deposited. Petitioners’ counsel maintain that this arrangement made E. Kroll & Co. the debtors of the bank, and that the note was collateral, and therefore the firm was entitled to have the obligation applied in reduction of their deposit. On the other hand, the receiver claims that Davis borrowed this money, that he was not then a member of the firm, but expected to be, if he obtained and put into the concern this money, and that the transaction did not create an obligation against the firm which the bank could have enforced, and ’ therefore it was not a proper subject of set-off, under the rule that a debt of the individual copartner cannot be set off against a firm demand..

It is difficult to avoid the conclusion that the bank lent this money to Davis upon his own paper, and that there was no binding contract on the part of ICroll & Co. It is not a case where the petitioners have shown that this money was borrowed by Kroll & Co., and that the note was merely collateral security. On the contrary, the testimony of the cashier is that Davis borrowed it to put into the proposed firm. There was no such firm then. ' There was to be, and he was to put in this $500. It was apparently part of the capital contributed by him, and raised upon his note. The circuit judge, who saw the witnesses, seems to have taken this view, and we are of the opinion that his order should be affirmed. It is so ordered, with costs.

The other Justices concurred.


author: Hooker, O. J.

text:
    NESTER v. TOWNSHIP OF BARAGA.
    1. Taxation — Personal Property — Place op Assessment — Review.
    An assessment on personal property not subject to taxation at the place where assessed may be reviewed by the courts.
    2. Same — Partnership—Residence—Direotin» Verdict.
    Though the residence of a copartnership for the purpose of taxation is a question of fact for a jury, where the evidence is uncontradicted the court may direct a verdict.
    3. Same.
    The business of a copartnership engaged in the manufacture and sale of lumber and the operation of aline of freight boats was held to have been “ principally carried on,” within the meaning of the tax laws, in the city where its office was located, its books kept, and its various interests directed, rather than in the township in which were situated its mills and lumber yards.

      Error to Houghton; Streeter, J.
    Submitted May 14, 1903.
    (Docket No. 76.)
    Decided June 30, 1903.

      Assumpsit, by George Nester, John F. Nester, Frank P. Nester, Maiy N. Bourke, and Margaret Nester, co-partners, doing business under the name of the Estate of Thomas Nester, against the township of Baraga, to recover taxes paid under protest. From a judgment for plaintiff's on verdict directed by the court, defendant brings error.
    Affirmed.

      Philip R. MoKernan (M. J. Shenvood, of counsel), for appellant.

      Chadbourne & Rees, for appellees.
   Hooker, O. J.

The plaintiffs are copartners living in different places, — one in Baraga county, and some in Detroit. Their business consists partly in lumbering, and they own and operate a sawmill in Baraga county, employing from 100 to 150 men in their business in Baraga county during lumbering seasons. They also own a number of vessels, tugs, and barges, and do a general freighting business, as well as business in connection with their lumber business. Their office is at Detroit, where their books are kept, and to which daily reports of the Baraga business are uniformly sent, and their business outside of the manual work of manufacturing and transportation is conducted. In the spring of 1900, the taxing officers of Baraga county sent to the plaintiffs the usual blank statements for listing property for taxation. There is no evidence that they were filled out and filed. Taxes were assessed, however, and it is claimed that the assessment of personal property includes property described on the roll and valued as follows, viz., “Steam vessels and barges, $50,000.” The plaintiffs called upon the board of review at their place of meeting, being the occasion of their last meeting, and found the members there, and they protested against such assessment, and were informed that they were one minute too late, and no attention was paid to their complaint. Subsequently they paid the tax under protest, and brought an action for the amount. At the time of the assessment, none of the vessels, except possibly one tug, was in Baraga county, but they were elsewhere about the Lakes, — some at Buffalo, and one at Duluth. This property had been assessed at Detroit theretofore, and plaintiffs claim that it was assessed there the same year; i. e., 1900. The court directed a verdict, and caused a judgment to be entered, in favor of the plaintiffs for $1,246, and defendant has brought the case to this court by writ of error.

Where a taxpayer’s assessment is upon personal property not subject to taxation at the place where the property is taxed, the courts may review it. City of Detroit v. Wayne Circuit Judge, 127 Mich. 604 (86 N. W. 1032); Woodmere Cemetery Ass’n v. Township of Springwells, 130 Mich. 466 (90 N. W. 277). The claim that plaintiffs should have appeared before the board of. review is nob entibled to much consideration, in view of the proofs.

Counsel claim that the residence of a corporation is a question of fact for a jury. It is a question of fact, but, where the evidence is clear and uncontradicted, a verdict may be directed. We have held in some cases that the residence is the actual, rather than a fictitious, one, but there is nothing in this case to indicate that Detroit is not the bona fide residence of this concern.

We find no error in the proceedings, and the judgment is affirmed.

The other Justices concurred.


author: Cabpenteb, J.

text:
    WOOLCOTT v. WOOLCOTT.
    Deeds — Conditions—Support op Grantor — Forfeiture—Separate Maintenance.
    Where a father conveyed land to his son on condition that the latter should support him during the remainder of his life, a quarrel between the father and son, which was provoked by the father, but in consequence of which he left the son’s home, was held insufficient to work a forfeiture of the estate conveyed, but the son was required to pay the cost of the father’s maintenance so long as he should choose to reside elsewhere.
    Cross-appeals from Berrien; Coolidge, J.
    Submitted May 13, 1903.
    (Docket No. 59.)
    Decided June 30, 1903.
    Bill by Samuel Woolcott against Elmer L. Woolcott and Elizabeth A. Woolcott to set aside certain deeds. Erom the decree rendered, both parties appeal.
    Reversed (defendants prevailing).

      George M. Valentine (George W. Bridgman, of • counsel), for complainant.

      Gore & Harvey, for defendants,
   Cabpenteb, J.

The defendant Elmer is a son of complainant. About July 1, 1901, the defendants, who are husband and wife, at the request of complainant and his wife (since deceased), removed from their home' in Nebraska to the farm occupied by complainant, situated near Watervliet, Berrien county, in this State. On the 24th of that month, complainant and his wife deeded said farm to defendant Elmer. That deed imposed upon the defendant the obligation to “support and maintain the said first parties during the term of their natural lives, he or she surviving, * * * furnish them with all the necessaries of life, suitable clothing, care for them in sickness as well as in health, pay all doctors’ bills and funeral expenses, and erect suitable tombstones to their graves.”' The property transferred by said conveyance consisted of two parcels; one containing 45 acres of land, upon which the homestead buildings were situated, and the other containing 55 acres of land, situated in another section. Complainant and his wife had on the 25th of January, 1887, executed a deed which by its terms conveyed said 55-acre-parcel to defendant Elmer, and on the 16th of January,, 1899, had executed a deed which purported to convey said 45-acre parcel to defendant Elmer.' This suit was brought to set aside these three deeds, on the claim that the deeds executed in 1887 and 1899 were never delivered, and that defendants had not complied with their agreement contained in the deed of 1901. The court below rendered a decree setting aside the deeds, and requiring complainant to pay defendant Elmer $1,637, to compensate him for losses incurred and money advanced. From this decree, both parties appeal.

Defendants contend that the deeds of 1887 and 1899 were delivered. We are bound, however, to conclude from their testimony that the deed of 1887 was executed to secure the payment of money owed by complainant to his son, and that the deed of 1899 was intended to vest title on condition that the son should remove to the farm, and there support his parents. Since, according to this testimony, the deed of 1887 was in equity a mortgage, and the deed of 1899 was delivered on conditions • substantially like those contained in the deed of 1901, it is-obvious that defendant’s ownership of the land depends upon his compliance with the conditions contained in the last deed executed. As we are of the opinion that the testimony does not prove such a failure on the part of defendants to perform their agreement in that deed as to justify a decree setting it aside, it is unnecessary to determine whether or not the deeds of 1887 and 1899 were delivered, and whether or not any balance of the money secured by the deed of 1887 remains unpaid.

The only time that defendants ever failed in any duty owed complainant was about the 1st of August, 1901, when complainant and defendant Elmer had a violent quarrel, the particulars of which are as follows: A misunderstanding, of no particular consequence, had arisen, about the place where a load of wood should be deposited. Complainant became passionately angry toward his son Elmer, and called him a number of vile names. The son, who, it seems, had inherited his father’s disposition, was not as patient as he should have been, and, under the provocation, replied in language that a son should never use to a father. While the altercation was in progress, the defendant Elizabeth remonstrated with complainant. He thereupon turned and applied to her a vile epithet. Her husband, defendant Elmer, thereupon became violently enraged. He caught hold of his father, and quite violently, though in no way injuring him, forced him down into a chair. As soon as his anger had cooled, he felt ashamed of his conduct, and in a day or two expressed his feelings of repentance to his father, the complainant. About 10 days after this occurrence, during which interval no incident of consequence occurred, complainant and his wife, being instigated, as we feel warranted in believing, by their other children, removed from their home, and ■subsequently commenced this suit.

While we cannot approve the conduct of the defendant, we cannot agree with the trial judge that it should work a forfeiture of his estate in this farm. We agree with him that, ‘ ‘ though his father was quarrelsome, it nevertheless became the duty of Elmer, under the circumstances, to exercise more than ordinary forbearance and patience.” We look upon the misconduct of Elmer, however, as an ■outburst of passion naturally resulting, in a man of his temperament, from the misconduct of complainant himself. While it may be true, as stated by the trial judge, that ‘1 the whims and caprices of old age, however unreasonable, must be tolerated and forgiven by the child, when fhe parent has conveyed all his property to such child in consideration of maintenance,” we cannot think that a single act of misconduct, provoked by a wrong done by the parent, is a sufficient ground for depriving the child of that property. To grant relief of that kind in a case like this not only affords a parent adequate protection against undutiful children, but it enables him, by his own wrong, to deprive those children of their property.

In our judgment, this case is much like the case of Cornell v. Whitney, 132 Mich. 300 (93 N. W. 614). We may properly say in this case, as we said in that: “ Notwithstanding what has occurred, it is not at all unlikely that complainant may choose to return to defendants, and be entirely satisfied with his home with them. * * i * At the same time, we do not think that complainant should be compelled, against his will, to take up his residence in their home. Under the circumstances of this case, a decree should be made compelling defendant” Elmer L. Woolcott “to reimburse complainant for the cost of his maintenance” since the time complainant left his home, “to pay such a sum each week as will secure complainant’s proper maintenance during such time as he shall choose to reside r else where than in defendants’ house, and to pay the medical attendance and funeral expenses,” and to perform all other agreements and obligations imposed upon him by his deed. “The decree should, of course, recognize complainant’s right to return to his home with defendants whenever he chooses to do so, and to receive there the full benefits of his contract,.as originally contemplated. The conveyance in question should be declared a trust to secure the performance of these obligations, and, in case of their nonperformance, this trust should end, and the property revert to complainant. As the record does not show what complainant has expended for his past maintenance, or what will be a proper allowance for his future maintenance, the decree will be reversed, and the case remanded to the court below, to take proofs, and to-enter a decree in accordance with this opinion. Complainant is entitled to costs of the trial in the circuit court. Defendants will recover costs .of this court. These costs shall not be collected from the money owing by them to complainant, or from the property which is the subject of this suit.”

The other Justices concurred.


author: Grant, J.

text:
    BLONDIN v. GRIFFIN.
    1. Tax Sales — Setting Aside — Irregularities—Estoppel.
    A landowner is estopped to question the validity of the action of the auditor general in canceling the sale of his land to the State for taxes, and including the same in a subsequent petition, where, having full knowledge of the proceedings, he made no objection thereto until several months after the second sale, when, instead of redeeming therefrom, as he might have done, he resorted to a petition to have it declared void.
    3. Same — Jurisdiction.
    A tax sale cannot be set aside after confirmation, except for the reasons mentioned in section 70 of the tax law (1 Comp. Laws, § 3893), or where the court was without jurisdiction. Irregularity of the auditor general in canceling a prior sale to the State for the‘same tax is not ground therefor.
    Appeal from Bay; Shepard, J.
    Submitted May 15, 1903.
    (Docket No. 92.)
    Decided June 30, 1903.
    Petition by Theophile Blondín against Albert A. Griffin and others to set aside a tax sale. From a decree for petitioner, defendant Griffin appeals.
    Reversed.
    Petitioner’s lands were sold in-1895 and in 1896 for nonpayment of taxes assessed for the years 1893 and 1894, respectively, and were duly bid off to the State. The auditor general, upon bis own motion, in 1901, set these sales aside, readvertised the land as delinquent, and the same was sold on the 24th of March, 1902, under the decree of the court, to respondent Albert A. Griffin for $140.93, being the taxes due and unpaid for the years 1893 and 1894. On June 17th following, petitioner filed this petition to have said sale declared void. Decree was entered in his favor upon payment of the taxes due within 10 days. From this decree defendant Griffin has appealed.

      James Donnelly (L. McHugh, of counsel), for petitioner. ■

      Albert McClatchey, for appellant.

       The land was bid off to the State at the general tax sale in May, 1901; Griffin purchasing the State bid in March following.

   Grant, J.

{after stating the facts). Petitioner is not entitled to the relief sought unless an unbending rule of law gives it to him. He knew that his taxes were unpaid, and that proceedings were instituted in 1901 for the sale of his land. The county treasurer had written him of the pendency of the suit, and that his land would be sold unless his taxes were paid. To this he paid no attention, did not appear in the suit, or even at the sale, to make protest. Nearly three months after the sale and after confirmation he applies to the court to have the sale set aside for the reason that the action of the auditor general in setting aside the sales in 1895 and 1896 is invalid. The cancellation of the sales for these years and the proceeding by the auditor general in 1901 to resell the land were not prejudicial to the rights of the petitioner; on the contrary, they were to his advantage, for it gave him another opportunity to pay his taxes. Petitioner was entitled to redeem from this sale by complying with Act No. 229, Pub. Acts 1897. Instead of complying with this - statute, he chose to resort to this suit. We think his conduct estops him from now insisting upon this irregularity of the auditor general in canceling the sales and readvertising his land.

We are further of the opinion that the court could not open the decree, under Brooks v. Auditor General, 119 Mich. 329 (78 N. W. 125), and Shefferly v. Auditor General, 120 Mich. 455 (79 N. W. 693). The court had jurisdiction to pass upon the question of the validity of this .action of the auditor general. It did so, held the action valid, and entered the decree in pursuance of which the land was sold. After confirmation the court had no jurisdiction to set aside the sale, except for the reasons mentioned in section 70 of the general tax law (1 Comp. Laws, § 3893), or. where the court had no jurisdiction. The only relief, under these facts, the law affords petitioner, is that provided by Act No. 229, Pub. Acts 1897.

Decree reversed, and petition dismissed.

The other Justices concurred.


text:
    DELL v. McBRIDE.
    Slander — Charge of Perjury — Evidence—Question for Jury.
    Where, in. an action for slander based on defendant’s statement, “You took my money, and went to Owosso, and swore to a God damn lie, and I can prove it, and, damn you, you are getting ready to swear to a lie again,” there was testimony tending to show that the accusation was made shortly after the trial of an action at Owosso in which plaintiff and defendant were witnesses on opposite sides, plaintiff was entitled to go to the jury on the question whether defendant meant that the alleged false swearing occurred in a judicial proceeding.
    Error to Shiawassee; Smith, J.
    Submitted May 15, 1903.
    (Docket No. 88.)
    Decided June 30, 1903.
    Case by David Dell against James McBride for slander. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Beversed.

      John T. McCurdy, for appellant.

      Q. A. Smith, O. J. Hood, and A. L. Chandler, for appellee.
   Hooker, C. J.

On the trial of this cause at circuit, the court directed a verdict for the defendant, upon the ground that the testimony failed to establish a prima facie case. The action was slander. No question arises over the sufficiency of the declaration. The words alleged were proved, and were as follows:

“You took my money, and went to Owosso, and swore to a Glod damn lie, and I can prove it, and, damn you,, you are getting ready to swear to a lie again.”

It is said that these words are not actionable per se, and that it was not shown that they referred to a judicial proceeding in which the alleged false statement was made.

It is true that the defendant did not state, in so many words, that it ocqurred in a judicial proceeding, but the proof is sufficient to warrant a finding that he referred to such an occasion. Two witnesses testified that an action was tried at Owosso where these parties were witnesses upon opposite sides, and that, shortly after, this accusation was made. The plaintiff should have been permitted to-take the verdict of the jury as to whether the talk referred to this occasion. Defendant’s point appears to be that the evidence does not show that defendant was alluding to that incident, but, as stated, we think it was fairly deducible from the proof.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moobe, J.

text:
    CONKLING v. NICHOLAS.
    1. Evidence — Lost Documents — Proof of Contents.
    The fact that, in reciting the contents of a lost letter, a witness states matters that would not be admissible as original testimony, is not ground for reversal.
    2. Sale — Delay in Shipment — Rescission—Estoppel.
    A purchaser of goods is not estopped from refusing to accept them on the ground that they were not shipped within a reasonable time, where, though he was advised of the date of shipment a few days in advance, and made no reply, he had previously undertaken, in good faith, to countermand his order because of the delay, and supposed that word would be received by the seller in time to prevent the shipment.
    Error to Delta; Stone, J.
    Submitted June 3, 1903.
    (Docket No. 13.)
    Decided June 30, 1903.

      Assumpsit by Samuel P. Conkling against Andrew Nicholas for goods sold and delivered. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.

      Cummiskey & Yell and, for appellant.

      G. JR. JEmpson, for appellee.
   Moobe, J.

This action was commenced in justice’s court. The case was appealed to the circuit court, where it was tried by a jury, which returned a verdict in favor of defendant.

The defendant is a hardware dealer living at Gladstone, Mich. His son was in charge of the store, and gave an order to Salesman F. "W. Benedict for $51.30 worth of Asbestine. The formal heading of the order is'as follows:

“Order No. 142. May 7, 1900.
“ The Alden Speabe’s Sons Co.
“On your approval ship to
Name of proprietor — A. Nicholas,
Hardware.
Town — Gladstone. State — Michigan.
How ship — By boat.
Terms — 30 days net, f. o. b. Detroit.
—2 per cent., 10 days. 10 per cent off list.
“This order positively not subject to countermand, as it may be turned over to a jobber, to be shipped and billed. No agreement binding except it be in writing on face or back of this order.”

It is the claim of defendant that, before these goods were received, the same person who gave the order wrote a letter directed to the Alden Speare’s Sons Company, Detroit, Mich. This letter was afterwards returned to the defendant, and was shown to have been delivered to his attorney, and afterwards destroyed in a fire which destroyed his office. Upon the trial the writer of the letter gave parol proof of the substance of the letter, to the effect that it was too late to ship the goods; that it was agreed they were to be shipped not later than one week after the order was given; and not to ship the goods. He also testified he had no knowledge of any one in connection with the transaction except Alden Speare’s Sons Company, and supposed their address was Detroit, as the goods were to be shipped from there. Alden Speare’s Sons Company turned the order over to the plaintiff, who testified:

“ The Alden Speare’s Sons Company was a wholesale paint house, located at Boston, Mass. I had business' dealings with them, and had an arrangement with them whereby they were to send an agent through this State to solicit orders for paints, and all orders so received were to be turned over to me to fill; I being a jobber, and I agreeing to fill all such orders by purchasing the necessary goods from them. F. W. Benedict was their agent in this State at that time. I received these orders about May 9th or 10th, 1900.”

After the order was received by the plaintiff, he wrote the following letter:

“ Detroit, Mich., June 5, 1900.
“ Mr. A. Nicholas,
“Gladstone, Mich.
Dear Sir: Referring to your order of May 7th, for Asbestine Cold Water Paint, we are pleased to advise that we are now in position to fill all orders for paint, and that shipment to you will go forward on the 8th inst. without fail.”

He received no reply to this letter, and on the 11th of June shipped the goods. They reached the defendant the 18th of June, when he wrote plaintiff as follows:

“ Gladstone, Mich., 19 June, 1900.
“S. P. Conkling, Esq.
“ Dear Sir: I wrote you not to ship Asbestine. It is so late now that I could not use it. It was to be here in a week. Now it is near five weeks, and the season is about over. I bought no Asbestine, waiting from day to day for your shipment, and lost sale then. It has made it bad all round. Will keep it here subject to your orders.”

The plaintiff declined to take the goods back. The defendant did not use them, and they were destroyed by a fire which destroyed the store of defendant in the following year.

It was the claim of plaintiff that the goods were shipped within a reasonable time; that the order was not subject to countermand; and that, after he wrote defendant the letter of June 5th, it was the duty of defendant to reply to that letter, and that, as he did not, he is estopped from saying he was not obliged to receive the goods. It was the claim of the defendant that the bulk of his sales of these goods were made in April, May, and June; that goods should reach Gladstone from Detroit in from three to eight days; and that these goods were not shipped within a reasonable time, and that he had a right to countermand the order after an unreasonable time had elapsed, and that he did this by writing a letter addressed to the firm to whom he had given the order, addressed to the place from which the goods were to be shipped; that he had a right to assume that letter had not been received when the letter of June 5 th was written, but that it would be received, so that a reply to the letter of June 5th was not necessary.

The judge submitted the case to the jury under a very carefully prepared charge. He told them, among other things:

“Now, gentlemen, whose goods were they at that time? If these goods were shipped and reached the defendant within a reasonable time, under all the circumstances of the case, the title passed to the defendant, and the defendant ought to pay this claim; and the loss would fall upon the owner, whoever the owner is, in the destruction of these goods. If, on the other hand, these goods wei’e not shipped within a reasonable time, and the party promptly —and, as you will see, this shipment did not take place until the 11th, and on the 18th or 19th the defendant writes that the goods would not be accepted — I say, if they had not been delivered within a reasonable time, he had a right to refuse to accept them, and to say to the plaintiff that he would hold the goods subject to his (the plaintiff’s) order; and, if a loss occurred, the loss would fall upon the plaintiff, the owner of the property, for the goods would not have become the property of the defendant.
“So that is all there is of it. Under all the circumstances in the case, taking into consideration that it was contemplated when the order was made that this bill of goods— this order of goods — might be filled by a jobber, — and you will say whether that naturally would take a little time, to get the order into the hands of the jobber, and to ship,— taking into consideration all these facts and circumstances, were the goods shipped within a reasonable time ? If they were shipped within a reasonable time, then the plaintiff has complied with his contract and the contract of his assignor, as you might say, — it was simply assigned down to him by the house that took the order, — and the plaintiff ought to recover. But if, on the other hand, you shall say, under all the circumstances of the case, that the time was an unreasonable one, that a reasonable time in which these goods should have been delivered had passed, then the defendant was not obliged to accept the goods, and he could hold them subject to the order of the plaintiff.”

Counsel say the court erred, as the order was a written one, in allowing Louis Nicholas to testify that it was orally agreed the goods were to be shipped not later than one week after the order was given; citing Stange v. Wilson, 17 Mich. 342. The record discloses that the testimony of Mr. Nicholas was in relation to the contents of a letter addressed to Alden Speare’s Sons Company, which was shown to be lost, and was clearly competent.

It is claimed no letter was written countermanding the order until the goods were received. We think this is not a fair inference from the testimony.

It will be observed, that the written order did not give the post-office address or place of business of the Alden Speare’s Sons Company, though it does state the goods were to be shipped by boat, and the terms were 30 days, f. o. b. Detroit. It will also be observed that, notwithstanding the business arrangement testified to by Mr. Conkling, by which he was to fill the orders taken by Mr. Benedict, his name does not appear in the order. An examination of the record satisfies us the case was very carefully tried.

The judgment is affirmed.

The other Justices concurred.


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    RAMBO v. PATTERSON.
    1. Contracts — False Representations — Evidence.
    Testimony as to false representations made to induce plaintiff to enter into a contract is admissible, in an action to recover money paid thereon, as against an objection that it ténds to vary the terms of the contract, which was in writing.
    2. Same — Waiver.
    An agreement for the purchase by plaintiff of an interest in defendants’ business gave him the right to terminate the arrangement, and to, have his money refunded, in certain contingencies. He soon became dissatisfied, and an agreement for a settlement was entered into, which defendants, failed to carry out; whereupon plaintiff at once brought an action for fraud and deceit in inducing the original agreement. Held, that he had not waived his right to bring such action.
    Error to Wayne; Brooke, J.
    Submitted June 2, 1903.
    (Docket No. 4.)
    Decided June 30, 1903.
    Case by William Rambo against William L. Patterson and John B. McICenney for fraud and deceit. From a judgment for plaintiff, defendant Patterson brings error.
    Affirmed.

      Fink & O’Connor, for appellant.

      Jay Fuller, for appellee.
   Grant, J.

Defendants carried on a real-estate business in the city of Detroit. Plaintiff, an inexperienced country youth of 24. years of age, purchased of the defendants a one-third interest in the business, for which he paid $300. A written contract was entered into. Plaintiff brought this suit to recover the money so paid, on the ground that he was induced to enter into the contract under false and fraudulent representations of fact. According to the plaintiff’s testimony, these representations were material, and were intentionally and maliciously false. Defendant Patterson denied them. Defendant McKenney was not sworn as a witness. It is not contended that the representations which plaintiff testified were made by the defendants are not sufficient of themselves to justify a recovery in a proper case, but they interpose two defenses, viz.: (1) That the contract was reduced to writing, and that the written contract must control; (2) that plaintiff did not act promptly, and by his conduct has waived the fraud.

1. This is not an attempt to vary the terms of a written contract, but to maintain that it was obtained by fraud. Counsel for defendants cite Bush v. Merriman, 87 Mich. 268 (49 N. W. 567), and Church v. Case, 110 Mich. 624 (68 N. W. 424), to support their contention. The distinction in those cases is well drawn.

“Where parol evidence is offered to show that the written contract is void, or not of binding force, it is admissible; but if the object be to prove that it was intended to mean something different from what its language imports, it is inadmissible.” Atwood v. Gillett, 2 Doug. (Mich.) 218.

It is true that plaintiff claims that the written contract, which he testified was read to him by one of the defendants, and then, under a frivolous excuse, was retained by them for a week before delivery to him, was not the contract verbally agreed to at the time he paid the money. Plaintiff testified that, when he told defendant Patterson that the written contract was not the one agreed to, Patterson did not deny it, but replied, “You are caught, and will have to stand it.” The contract provides:

“ It is also understood that such business is of such a problematical character that it is difficult to determine amount of profits to be made, and that first parties hold out no inducements and make no representations as to what said business has made, is making, and make no promises of what it may become in the future; and, save for the experience of one of said first-parties, their lists of opportunities and business chances, and the good will of the aforesaid business, they contribute no further capital or assets to said copartnership business, and make no representations that they have any capital at the present time; and that the said W. Rambo, in so buying into said co-partnership busipess, acts entirely upon his own judgment,' and takes his chances upon the future of the business.”

It is urged, and with some reason, that this singular provision was one of the means entered into by these defendants to carry out their conspiracy to defraud plaintiff. In reply to special questions, the jury found as follows:

Q. Did Patterson, according to the evidence submitted to you, at any time conspire with McKenney to cheat and defraud plaintiff ?
“A. Yes.
Q. Did Patterson at anytime intentionally and fraudulently misrepresent facts concerning the business to Rambo ?
“A. Yes.”

We think there was ample evidence to sustain the verdict upon this branch of the case.

2. The contract also contained these two provisions:

“ It is also hereby agreed that, if the share of profits of the second party amounts to $40 per month or more during the next three months, then this is to be an absolute and binding agreement, which cannot be repudiated or avoided for any reason. If said profits of second party do not amount to $40 per month during the next three months, then second party can, at his option, at any time give first party thirty days’ notice in writing, and at the end of thirty days first party will return to second party said $300.
“If during the next three months first parties are dissatisfied with second party for any reason, they may, upon returning said $300 to said second party, and giving second party thirty days’ notice, terminate said copartnership with said second party.”

Substantially no business was done by the firm for the month after the contract was made. Meanwhile plaintiff, who had put all his money into this firm, desired to make some amicable arrangement to get out. They therefore made an agreement on the 30th day of November, 1901, settling their differences, plaintiff agreeing to take $75 and release all claims against the defendants. Fifty dollars was paid down. This agreement contained the following provision:

“Fifty dollars to be paid this day, and $25 to be paid on or before December 10, 1901. Until said $25 is paid, George E. Eckert is to hold this agreement and second party’s articles of copartnership until December 10, 1901, and at that time, if said $25 is paid, to deliver to first parties the articles of copartnership and second party this agreement. If said $25 is not paid by that time, second party is to have his articles of copartnership back, and said $50 is to be forfeited to second party, and second party shall still hold his interest and membership in said copartnership, and this agreement shall be null and void.”

Whether the $25 was tendered was the disputed question, and was submitted to the jury, who, in reply to a special question, found that it was not. The court instructed the jury that, if they found that this $25 had been tendered, the plaintiff could not recover. We think the plaintiff acted with sufficient promptness, and had not waived his right of action by his conduct. He obtained a verdict of $250, with interest, and it is affirmed.

The other Justices concurred.


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    CARVEY v. DETROIT & MACKINAC RAILWAY CO.
    Carriers — Ejeotion'of Passenger — Tickets—Custom—Evidence.
    Where, in an action by a passenger for being ejected from a train, it appears that he presented a ticket which, on its face, entitled him to ride, defendant cannot show that it was the custom to issue such tickets for certain days only, and that published notice had been given accordingly, in the absence of any proof of knowledge of such limitation by the passenger or the purchaser of the ticket.
    Error to Bay; Shepard, J.
    Submitted June 10, 1903.
    (Docket No. 54.)
    Decided June 30, 1903.
    Case by Edna Carvey, by next friend, against the Detroit & Mackinac Railway Company, for a wrongful ejection from a train. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      T. A. E. & J. G. Weadock, for appellant.

      Pierce & Kinnane, for appellee.
   Montgomery, J.

This is an action in which the plaintiff recovered damages for being ejected from the defendant’s car. The evidence discloses that she boarded the defendant’s regular passenger train at Bay City on the 2?th of December, 3901, and presented the following ticket:

The conductor refused to receive the ticket, and compelled her to alight, and she was obliged to walk back to her home, following the track, and carrying a heavy valise.

No question is made that this ticket, on its face, showed the plaintiff entitled to a ride on the train in question, but it was sought to show that it had been the custom of this railroad company and others to issue holiday tickets, good on the 24th and 25th of December for a going passage, and good to return until January 2d, and likewise tickets good to go on December 31st and January 1st, and good for a return on January 2d, and that published notices that such tickets would be on sale were given. It was sought to limit the contract which the ticket imported by "this testimony.

The undisputed testimony in the case shows that the person who purchased the ticket had no knowledge of this advertisement, or of any limitation of the ticket; nor was there any proposition to bring home definite notice to either the plaintiff or the purchaser of the ticket of any such limitation by custom. The testimony was rightly excluded. See Keen v. Railway, 123 Mich. 247 (81 N. W. 1084); Hufford v. Railroad Co., 64 Mich. 631 (31 N. W. 544, 8 Am. St. Rep. 859); Frederick v. Railroad Co., 37 Mich. 342 (26 Am. Rep. 531); 3 Thomp. Neg. § 2552.

Judgment will be affirmed, with costs.

The other Justices concurred.


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    DUBY v. FARMERS’ MUTUAL FIRE-INSURANCE CO.
    Fire Insurance — Conditions—Waiver—Evidence.
    PlaintifE, a nonresident, applied to defendant company for insurance on a farmhouse, the risk being accepted on condition that all logs and brush be cleared for 100 feet around the building. She gave instructions to her tenant to clear away the rubbish, which he did to some extent. Thereafter the company made an assessment on the policy on the house, and took a new application on the barn located on the premises. It was claimed that a similar condition as to clearing was imposed with reference to the barn. Defendant’s agent was •at the premises when the barn was insured, and directed clearing within certain limits marked by him around the barn, which was done. The buildings were destroyed by fire, at which time there were some logs and brush within 100 feet •of the house; but the fire was not aggravated thereby. Held, that such facts warranted a finding that the condition as to clearing had been waived.
    Error to Cheboygan; Shepherd, J.
    Submitted April 24, 1903.
    (Docket No. 57.)
    Decided June 30, 1903.

      Assumpsit by Marie C. Duby against the Farmers’ Mutual Fire-Insurance Company of Charlevoix, Emmet, and Cheboygan Counties on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Frost & Sprague, for appellant.

      William N. Gross and A. W. Shields {H. W. Ha/rpster, of counsel), for appellee.
   Hooker, C. J.

The defendant is a mutual fire-insurance company, organized to insure farm buildings in three counties of this State. The plaintiff signed an application for a policy upon her dwelling on September 22, 1898. The premises were not then insurable, for the reason that there was no brick or tile chimney upon the house, as provided by article 1 of the charter of the company, plainly printed in the policy. Below her signature, under the head of “ Remarks,” was written the following:

“From 12 o’clock m. the 22d day of September, 1898.
“The risk on this house to commence as soon as secretary is notified that chimneys are built, and logs and all brush is cleared 100 feet all around the house.”

The undisputed proof shows that this was upon the application when plaintiff signed it. ' The policy was dated October 10, 1898, and states that plaintiff “has this 22d day of September, 1898, become a member of the company, * * * and is insured,” etc. Subsequently the chimney was built, and plaintiff notified the secretary of the fact, who states that he took it for granted that all of the conditions had been fulfilled, and indorsed the fact of receiving said notice on the application of the date of October 18, 1898. At the time the insurance was effected, plaintiff paid $1.50 membership fee and 20 cents premium. An assessment of 62 cents, payable on or before November 1, 1899, was made on this policy. It was paid October 1, 1899, and receipted for October 9,1899.

On October 7, 1899, an application for insurance on a barn upon the premises reached the office of the company, upon which plaintiff paid 20 cents premium and 50 cents fees. Upon this application, under the head of “Remarks,” the following appears:

“This application reached the office 10, 7, 99.
“O. T. Booth, Sec.
“Miss Duby has been notified to clear the brush and logs 100 feet from the barn before this risk will take effect, by R. D. Vermilya.
“ O. T. Booth, Sec.”

It was hot shown that this was upon the application when signed. The insurance on the barn was indorsed on the original policy, in accordance with the usual practice, no new policy being issued. The house and barn were destroyed by fire in May, 1900, as a result of forest fires.

The defendant contests this cause upon the ground that the policy never became operative by reason of the nonperformance of the condition indorsed upon the application, which it claims to be a condition precedent. The plaintiff’s counsel answer with the claim that, if a condition, it was waived by the assessment. The plaintiff lived at Columbus, Ohio. She had given instruction to her tenant to clear up this rubbish, and he had done something toward it, if not complied with the requirement. It is true that notice that it was cleared away was not given to defendant, but the action of the company in making an assessment and in taking a new application on the barn indicated that it was satisfied with what had been done, and was calculated to lead plaintiff to so understand. Its agent was on the ground and saw the condition of the premises when the barn was built, and the statement of the other agent, Vermilya, that appears on the second application, is denied by the plaintiff. She also stated that the agent Goodrich, who insured the barn, directed the clearing within limits marked out by him, which was done, and accepted by him as satisfactory. The finding of fact shows that there were some logs and brush within 100 feet of the house when the fire occurred, but they did not cause nor aggravate the fire. It was held that the provisions of the application had been waived by the acts of the defendant and its agents. We think there was testimony upon which such a finding might be based.

The testimony of Ellis as to his willingness to insure the property, if improperly admitted, was error without injury.

The judgment is affirmed.

The other Justices concurred.


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    VAN LESSLER v. ANN ARBOR RAILROAD CO.
    Master and Servant — Lien for Wages — Possession of Property-Conversion — Action by Servant.
    A person, employed by the owner of certain charcoal kilns to fire the same, and to perform certain other work in connection therewith, at an agreed compensation, together with the use of a small house on the premises, with fuel and light, is in possession as an employé only, and not as a bailee for hire, and hence has no lien on the charcoal for his wages, entitling him to maintain trover against a railroad company shipping it away in disregard of his claim.
    Error to Gratiot; Stone, J.
    Submitted June 3, 1903.
    (Docket No. 10.)
    Decided June 30, 1903.
    Trover by John 'Van Lessler against the Ann Arbor Railroad Company. . From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff was an employé of one Auten, who owned five charcoal kilns at Ashley, alongside the defendant’s railroad tracks. His employment was to fire the kilns, to fight the fire that should at any time threaten to destroy the property, to look after the yard and property there, to see that nothing was taken from said yard except on orders from Anten, and to keep an account of the number ■of cars of coal shipped. As a compensation he was to receive $3 per kiln for firing, and $5 per month for the rest of the work, and the use of h small house on said premises, with fuel and light. Auten did not pay him, and plaintiff now seeks to recover the value of his services from the defendant railroad company in an action of trover. The court directed a verdict for the defendant.

      John T. Mathews, for appellant.

      T. W. Whitney, for appellee.
   Grant, J.

(after stating the facts). Defendant was duly notified of plaintiff’s claim, and forbidden to remove the coal, and shipped it after such notification. Plaintiff seeks to maintain this action upon the theory that he had possession of the coal, and that such possession gave him a lien upon the property, both at common law and by statute. His right of action depends entirely upon the question of possession.

That a bailee for hire has a lien upon the goods in his possession, and may retain such possession until he has received his compensation, is not disputed. Plaintiff was no more in possession than was any other employé of Mr. Auten. He had certain specific duties to perform in connection with the business. An employé charged with shipping machinery from the works of a manufactory, with counting the pieces of machinery as they were shipped, looking after the yard of the manufactory, preventing fires, and who slept in a part of the building, or was premittedto occupy a small building upon the grounds, might as well claim that he was in possession of the property, and could prevent shipments on the ground that he was an artisan and had a lien upon the property.

Counsel for plaintiff relies upon Bank of Montreal v. Salt & Lumber Co., 91 Mich. 342 (51 N. W. 890). That case does not apply to this. In that case the contractor had complete and absolute possession of the salt until the delivery to the boats or vessels from the docks, and was responsible for it until that time. The contractor in that case was not simply an employe, as was the plaintiff in this.

Judgment affirmed.

The other Justices concurred.


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    WOLVERINE LAND CO. v. AUDITOR GENERAL.
    Taxation — Invalid Deed — Refunding—Construction of Statute.
    Section 103 of the tax law of 1869 (1 How. Stat. § 1104J,.pro-viding for a refunding of the purchase money for a tax title where the same had been “ annulled pursuant to law ” for any of the causes enumerated in section 164, referred to an annulment in the method prescribed by section 101, and did not apply where the title had been declared void in some other proceeding.

      Mandamus by the Wolverine Land Company to compel Perry F. Powers, auditor general, to refund the consideration paid for a tax title.
    Submitted June 2, 1903.
    (Calendar No. 19,831.)
    Writ denied June 30, 1903.

      B. 8. Woodliff and D. W. Glosser, for relator.

      Charles A. Blair, Attorney General (Charles W. McGill,oí counsel), for respondent.
   Hooker, C. J.

Relator’s grantor bought the premises described in its petition at tax sale many years ago, for taxes assessed in 1876, taking an auditor general’s deed in 1901. Subsequently one Michael Brenner, claiming to own the same in fee, filed a bill in the circuit court to cancel the auditor general’s deed, and a decree was made in his favor. The auditor general was a party to this suit. Application was afterwards made to him to refund the amount bid for the land, with interest, and upon his refusal relator commenced this proceeding to compel it. Respondent answered, and relator replied, but it is unnecessary to refer to these pleadings further.

Relator’s claim is based upon section 103 of Act No. 169, Laws 1869. Section 101 provides for the annulling of deeds in certain cases by circuit courts upon filing certain affidavits, etc., within two years, and within five years when the land was not subject to taxation, or when the taxes had been duly paid and receipted for. 1 How. Stat. §1103. Section 103 provides:

“Sec. 103. In all cases where lands sold for taxes have been conveyed by deed, and the title has been annulled pursuant to law for any causes enumerated in section one hundred and sixty-four of this act, the auditor general shall, on presentation of a copy of the judgment annulling the same, refund to the holder of said title the purchase money and interest thereon, as the law requires, and certify the fact to the proper county treasurer.” 1 How. Stat. § 1104.

Section 164 is as follows:

“ Sec. 164. In all suits and controversies involving the title to land claimed and held by virtue of a deed executed by the auditor general of this State for nonpayment of the taxes thereon, the person claiming adverse title to such deed shall be required to prove, in order to defeat the title conveyed by such deed, either that the land described therein was not subject to taxation at the date of the assessment of the tax for which it was sold; or that the taxes, for the nonpayment of which such land was sold, were paid to the proper officer within the time limited by law therefor; or that the same had not been assessed for the taxes for the nonpayment of which it was sold; or that the same had been redeemed pursuant to law; or that a certificate, in proper form, had been given by the proper-officer, within the time limited by law for paying taxes, or redeeming from sales made for the nonpayment thereof, stating that no taxes were due, or that the lands were not subject to redemption; but no person shall be permitted to question the title acquired by such auditor general’s deed, without proving that he, or the person through whom he claims title, had title to the land at the time of the sale thereof for nonpayment of taxes, or subsequently, which title was acquired from the United States or from this State.” 1 How. Stat. § 1166.

It is contended by counsel for the relator that section 103 authorizes a refunding wherever in any case involving the title to the land a circuit court has adjudged the tax deed invalid upon any of the grounds mentioned in section 164. We think otherwise. Section 103 limits the refunding to cases where the deed has been annulled pursuant to law for any of the causes enumerated in section 164. This section refers to the annulment provided for in the preceding section, viz., 101. Section 101 provides only for annulment, and is silent upon the subject of refunding. Section 103 provides for the refunding, but limits it by the provisions of section 164. Counsel say that this is not a limitation, because section 164 gives five reasons or grounds for contesting a deed, while section 101 gives but three for annulling; and it is urged that section 164 therefore enlarges the grounds mentioned as reasons for refunding, and, as section 101 does not make them all grounds for annulment, it must follow that section 103 includes some other method of annulment than that provided by section . 101. Counsel’s .premises are faulty. Section 101 is broad enough to cover many irregularities not mentioned in section 164, but, while these are all grounds for annulment, they are not all grounds for refunding under section 103. Again, section 101 indicates a plain intent to limit the right to annulment to a short period, and is inconsistent with an intention to permit refunding at any time when' the title may be attacked. This view of the case makes it unnecessary to discuss many questions that suggest themselves, including the effect of the repeal of the tax law of 1869, about which we express no' opinion.

The writ is denied, with costs.

The other Justices concurred.