author: McAlvay, C. J.

text:
    FIRST NATIONAL BANK OF DETROIT v. CURRIE.
    1. Bills and Notes — Checks — Indorsement — Liability of Indorser.
    The undertaking of the indorser of a check is that, if not paid on presentation within a reasonable time, he will pay it, provided he is properly notified; a reasonable time for presentation and demand for payment being within the day following the indorsement.
    2. Same — Liability of Indorsee.
    The indorsee of a check, as between himself and the indorser, undertakes to demand payment within the day following the indorsement, and, if payment is not made, to give due notice of dishonor.
    8. Same — Lack of Funds of Drawer.
    The fact that there are no funds in the account against which a check is drawn does not relieve the indorsee thereof from the duty of presenting it to the drawee and giving notice of its dishonor to the indorser, unless the indorser knows the facts.
    4. Same — Injury of Indorser.
    The right of the indorser of a check to presentation and notice of dishonor is not changed by the fact that he suffered no apparent damage from the indorsee’s failure in that respect.
    5. Same — Certification of Check.
    The certification of a check by the bank upon which it is drawn, when procured by the indorsee, is equivalent to payment, and discharges both the drawer and the indorser, though the drawer in fact has no funds in the bank upon which the check is drawn.
    6. Same — New Contract.
    Certification of a check by the drawee at the request of the indorsee, who thereupon parts with value, creates a new contract enforceable by the indorsee against the drawee.
    7. Same — Loss to Indorser.
    The act of the indorsee of a check in procuring it to be certified by the drawee discharges the indorser, notwithstanding the check is presented for payment, payment refused, and the indorser notified within the time within which notice would have been given had the certification not been procured.
    8. Same — Insolvency op Drawee.
    Where the indorsee of a check procures it to be certified by the drawee before parting with value, the subsequent insolvency of the drawee is immaterial on the question of the liability of the indorser
    9. Principal and Surety — Discharge op Surety — Renewal op Engagement — Necessity op Consideration.
    Where the indorser of a check was discharged by the indorsee’s presenting it to the drawee and having it certified, the subsequent delivery by the indorser to the indorsee of a memorandum consenting to an extension of time for payment of the check did not renew the liability of the indorser as a surety, being without consideration.
    Error to Wayne; Brooke, J.
    Submitted March 2, 1906.
    (Docket No. 48.)
    Decided February 5, 1907.
    Assumpsit by the First National Bank of Detroit against Cameron Currie and Frederick S. Osborne, copartners as Cameron Currie & Company, for money had and received. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Reversed.

      H. E. Spalding (A. C. Angelí, of counsel), for appellants.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for appellee.
   McAlvay, C. J.

Defendants were in partnership as brokers at Detroit. They dealt in stocks and bonds on the New York Stock Exchange and elsewhere. They executed orders for dealings in the New York market through other brokers. Frank C. Andrews was their largest customer. On February 5, 1903, they had bought for Andrews and on his order, but in their own name, as was customary, #90,000 par value of Union Pacific convertible 4 per cent, bonds for $95,000, in New York, through Ladenburg, Thalman & Go., who were to make delivery on payment. Shortly after noon February 6, 1903, Mr. Andrews asked Mr. Case, defendants’ office manager, to arrange to wire the price of these bonds to New York. Mr. Case arranged with the State Savings Bank to wire $45,000, and then asked Mr. Smith, plaintiff’s assistant cashier, if they would wire $50,000 to New York for Frank C. Andrews, and was told that they would for 75 cents per $1,000. It was plaintiff’s custom to charge for remittances made by wire for Andrews, but not to charge for remitting for defendants. When Andrews returned, Case reported to him that the arrangement could be made, and Andrews gave him two checks on the City Savings Bank, payable to defendants’ order, for $50,000 and $45,000, respectively, directing him to have Ladenburg, Thalman & Co. deliver the bonds to the firm of Warren, Andrews & Co., of New York, of which firm Andrew^ was a member. The $50,000 check, being the one involved in this litigation, reads as follows:

“$50,000. Detroit, Mich., Feb. 6, 1903.
“ Pay to the order of Cameron Currie and Co.
? Fifty Thousand......Dollars.
“ Yalue received, and charge the same to account of
“F. C. Andrews.
“Tothe City Savings Bank, Detroit.”

Defendants indorsed this check as follows:

“ Pay First National Bank, Detroit, Mich., or order.
“ Cameron Currie & Co.”

' Mr. Case deposited this check to the credit of defendants’ account in plaintiff bank and at the same time drew and gave to the bank defendants’ check for a like sum payable to the order of plaintiff’s cashier, and directed the plaintiff to wire its New York correspondent to pay that amount to Ladenburg, Thalman & Co., and paid the amount of plaintiff’s charge for transferring the funds. Immediately upon the deposit of the Andrews check in the plaintiff bank, defendants wired Ladenburg, Thalman & Co., as follows:

“ Please deliver to Warren, Andrews and Co., 90,000 Union Pacific convertibles free. National Park will pay you $45,000, National Bank of Commerce for our credit.
“Cameron Currie & Company.”

This was received by Ladenburg, Thalman & Co. at 1:12 p. m. eastern standard time. Upon receiving the deposit of the Andrews check indorsed by defendants, and defendants’ own check with their directions for wiring money, the plaintiff sent the Andrews check to the City Savings Bank for certification. It was presented by plaintiff’s messenger to Joseph Schrage, paying teller of said bank, who had authority to certify checks drawn on ids bank, and who certified by writing across its face the words “ Good, Schrage, Teller.” The check was then returned to plaintiff, which then, at 12:35 p. m. central standard time (1:35 p. m. eastern standard time) sent to its New York correspondent, the National Bank of Commerce, a telegram as follows:

“Deposit to the credit of Cameron Currie & Co., Fifty Thousand dollars with Ladenburg, Thalman & Co. and charge to our account.
“First National Bank of Detroit.”

After payment was made by the National Bank of Commerce, as ordered by this telegram, the payment of $45,000 having been made through another bank, the bonds were delivered between 2 and 3 o’clock eastern standard time, by Landenburg, Thalman & Co., to Warren, Andrews & Co.

Defendants had previously had numerous transactions with Andrews in which they took his check but never had his check certified. Plaintiff had previously received at different times checks given by Andrews to defendants, given, as it supposed, for stocks, and did not understand anything different about this transaction. Plaintiff had itself had a number of transactions with Andrews shortly before this date, and one for a large amount on this same day, in which it received Andrews’ check on the City Savings Bank. In every'case it procured certification of the check before parting with the securities in payment for which •it was given. Plaintiff and the City Savings Bank were members of the Detroit Clearing House. Plaintiff received this check after 12:15 p. m., the time of the noon meeting of the Clearing House at which checks payable at the different banks were ordinarily presented, and this check in the usual course of business would not be presented through the Clearing House until the next day. Defendants knew of this method of presenting through the Clearing House. On the next day this check and other certified checks amounting to $662,000, drawn by Andrews on the City Savings Bank and held by different banks, were, by agreement between them, not presented through the Clearing House on account of Andrews’ statement that the presentation would embarrass the City Savings Bank. This certified check was on that day (February 7th) presented by plaintiff at the City Savings Bank, payment refused, and the check protested. Andrews’ account at this bank, both when the check was certified and when payment was demanded, was overdrawn more than $900,000. The City Savings Bank had, on February 6th, when the check was certified, and on the 7th, when it was presented, funds of its own ample in amount to pay the check. Notice of protest was duly given by Mr. Smith personally handing the same to Mr. Osborne, one of the defendants. Whether Mr. Osborne saw the check at this time is not certain. There is no evidence that he ever saw it before or had anything to do with taking it. On February 8th the plaintiff received from defendants the following paper signed by Mr. Osborne in the firm name:

“We hereby consent that the time of the payment of the check of Frank C. Andrews for $50,000 dated Feb. 6th, 1903, and indorsed by ns and deposited with the First National Bank for credit on onr account on that date, be extended pending the action of the Bankers’ Committee.
“Detroit, Mich. Feb. 8th, 1903.
“ Cameron Currie & Co.”

No further presentation was ever made. A verdict was directed for plaintiff for the amount of the check, with interest. Defendants claim that the court erred in directing such a verdict. The contentions on their behalf are:

“ 1. That the certification of the check for plaintiff at its request was equivalent to payment, and operated to release them as indorsers.
“ 3. That plaintiff, on presenting the check, elected to take certification which is the obligation of the drawee bank to pay, and deferred formal presentation of the certified check for payment until the next day. Had it demanded payment instead of certification, or upon 'certification, as it should, the check would either have been paid or dishonored. ’ If dishonored the plaintiff would not have remitted, and the bonds would not have been delivered, but remained in defendants’ control. Whether paid or dishonored neither party would have lost anything. So that plaintiff’s failure to demand payment at the time of certification caused the loss, and defendants cannot be held therefor.”

The dispute in this case is between the indorsee and the indorsers of a check. The following rules of the law merchant fixing the rights, duties, and liabilities of indorsee and indorser each to the other, and the effect of certification by the drawee bank upon such rights, duties, and liabilities, are well settled: The undertaking of the indorser of a check is that, if not paid on presentation within a reasonable time, he will pay it, provided he is properly notified. Such reasonable time for presentation and demand for payment is admitted to be within the day following the indorsement. The indorsee, ás , between himself and the indorser, undertakes to demand payment within the day following the indorsement, and, if pay-, ment is not made, to give due notice of dishonor. This is his sole duty, and he does anything else at his peril. 2 Daniel on Negotiable Instruments (5th Ed.), § 1601; People, ex rel. Port Chester Savings Bank, v. Cromwell, 102 N. Y. 477. The fact that there are no funds in the account against which the check is drawn does not relieve the holder from presentation and notice of dishonor to the indorser, unless it appears that the indorser knew it. 2 Daniel on Negotiable Instruments (5th Ed.), § 1596; 1 Morse on Banks & Banking (4th Ed.), § 262, subd. 8. Nor are the rights of the indorser changed because he suffered no apparent damage by reason of failure to demand payment and give notice of dishonor to him within the required time. Mohawk Bank v. Boderick, 13 Wend. (N. Y.) 133; Tiedeman on Commercial Paper, § 442; Gough v. Staats, 13 Wend. (N. Y.) 549; First Nat. Bank of Wymore v. Miller, 37 Neb. 500.

The certification of a check by a bank that it is “good” “is similar to the accepting of a bill, for he (the banker) admits hereby assets, and makes himself liable to pay.” Lord Mansfield in Robson v. Bennett, 2 Taunt. 388.

“ By the law merchant of this country the certificate of the bank that the check is good is equivalent to acceptance; it implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so ap: plied whenever the check is presented for payment. It is an undertaking that the check is good then, and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to the order of the depositor, or any other obligation it can assume.” Mr. Justice Swayne in Merchants' Bank v. State Bank, 10 Wall. (U. S.) 604, 647.

Where the check is drawn against funds, the certification, if procured by the payee or indorsee, discharges both maker and indorser, because equivalent to payment. 2 Daniel on Negotiable Instruments (5th Ed.), § 1604; Metropolitan Nat. Bank of Chicago v. Jones, 137 Ill. 634 (12 L. R. A. 492).

The important question in the case at bar is whether certification of a check on presentation by the indorsee, though there are no funds, is equivalent to payment. As a general proposition we think it is, as to both the maker and indorser. 2 Daniel on Negotiable Instruments (5th Ed.), § .1604, and cases cited. The rules of the law merchant are inflexible and arbitrary, and necessarily so. An indorser may always insist that the conditions requisite to make his undertaking enforceable shall be strictly complied with; namely, presentation for payment and notice of dishonor. As to the indorsee the certifying bank is bound by estoppel where he has changed his position or parted with value on the strength of the certification. Brooklyn Trust Co. v. Toler, 65 Hun (N. Y.), 187, 138 N. Y. 675, and cases cited.

In this case plaintiff parted with no value before certification, but, relying upon the certification, transferred $50,000 to New York. We find, then, that as between the plaintiff and the bank there was a new and enforceable contract created by the certification of the check. Ordinarily there would be no question but that such condition released the indorsers. In this case, however, it is claimed that, although the check had not been presented for payment, but for certification, yet upon it as certified payment was demanded, and the check was protested, and notice duly given within the time which the same would have been given had the check been presented for payment instead of certification, and because defendant indorsers have suffered no loss by reason of certification, and are in no different position than if such payment had been demanded, therefore they are not released as indorsers. The claim that no loss has occurred to defendants, which we think is not supported by the facts in the case, can be eliminated, for the reason that the liability of the indorser is not predicated upon his loss. See cases cited, supra. The case relied upon by plaintiff to sustain its contention, and also by the court in directing the verdict, is Irving Bank v. Wetherald, 36 N. Y. 335. We think the cases are distinguishable. In that case the note had been discounted by the indorsers who received the proceeds at the time. It was, therefore, a completed transaction between the indorsers and the indorsee. The indorsee, a bank, presented the note when due at the bank where it was payable and had it certified. Later in the day the certifying bank discovered that there were no funds to pay the note, and before 3 o’clock p. m. notified the holding bank, which refused to recognize the notice. The certifying bank then took up the note, presented it at its own counter, protested it, and notified the indorsers. The certifying bank sued the indorsers. The case recognizing the well-established doctrine that a bank is estopped from denying its certification of a note' as good where the presenting bank relies upon its accuracy and fails to protest the note for nonpayment and thus releases the indorsers, holds that, where the mistake in certification is discovered, and notice given to the presenting bank in time to make a re-presentation and charge the indorsers, the certifying bank is discharged from further liability, and that the certifying bank in this case took the note as a purchaser and acquired the rights of a holder and could maintain its action against the indorsers. The discounting bank received notice of the mistake before it in any Way changed its position. It had not parted with value or released the indorsers on the strength of the certification, otherwise the certification would have been binding.

In the case at bar plaintiff parted with value on the strength of the certification. No enforceable contract was entered into between the parties to this suit because plaintiff never parted with value relying upon the indorsement. As between the certifying bank and the plaintiff there could be no revocation by the bank. There was no claim of mistake on the part of the certifying bank or any attempt to revoke its certification. If the certification was in law a fraud, it was the fraud of Andrews and the certifying bank, of which neither of the parties to this suit had knowledge. The presentment of the certified check to the certifying bank, and its nonpayment was the repudiation by the band of its independent contract of certification made with the plaintiff. This check as it was when the indorsers parted with it to the indorsee was never presented for payment. The certification was made without the knowledge or consent of the indorsers. Applying to this case the decision in the Wetherald Case so far as it has any hearing upon the questions here involved, it is authority for holding that the certifying bank could not avoid liability on its certification, for the reason that plaintiff had parted with value on the strength of it.

It was urged in the trial court, and is urged in this court, that the certification of the check in the absence of funds did not operate to release the maker from his liability thereon, and therefore the indorsers can occupy no better position than the maker and are not released, and upon this theory the trial court decided the case. No authorities are cited to us and we have been able to find none which support this proposition. As already stated, it is a general rule of law that where the holder of a check procures its certification by the bank upon which it is drawn, the drawer and all parties thereto are discharged. The relations of the different parties to a check and the nature of their contracts have already been sufficiently stated. The certification is an entirely new and different contract. By it the certifying bank becomes the primary debtor. The holder has released the maker and indorsers, and volum tarily accepted the obligation of the certifying bank. It is not unlawful for one to draw checks upon án overdrawn account. Neither is it unlawful for the bank to pay such a check and to charge the amount thereof against the drawer. In such case, as in any other case, the holder who obtains a certification has elected to accept the obligation of the bank instead of cash. So far as the drawer is concerned the check is paid because the holder by securing certification obtained what he desired as payment. The bank had been directed to pay cash, and when the holder obtained what he preferred to cash, it was none the less a payment. . The rule '•which releases the maker and indorsers of a check upon certification procured by the holder, is not predicated upon the presence of funds in the hands of the certifying bank, but upon the principle that such certification operates as payment, discharging the maker whose contract has been fulfilled, and the indorser who was the guarantor of such fulfillment. If, in considering this proposition of law, the question of what relation may have been created between the bank and the maker in case of a certification in the absence of funds is eliminated as a factor, the correctness of our reasoning is in our judgment conclusive. The insolvency of the certifying bank after the certification is a circumstance which is likely to disturb our judgment of the legal question, because it occasioned this suit. That fact is entirely immaterial to the question, the rights of the parties having been fixed before that insolvency was knowr\, and they were utterly ignorant of its possibility. Our conclusion is, therefore, that the general rule applies to this case and discharges the drawer as well as the indorsers, notwithstanding the absence of funds.

It is urged that defendants, by giving plaintiff the memorandum of February 8th, above referred to, thereby recognizing their liability and assuming and exercising control over the check, have waived any defense upon the ground that by the act of the plaintiff they were released as indorsers. At the time this memorandum was made the maker and indorsers of this check had been released by the voluntary act of the plaintiff. Instead of the original undertaking of defendants, an entirely new contract had been entered into between the plaintiff and the certifying bank, in which the certifying bank was the primary debtor. This memorandum, then, if it operates to create a liability on the part of defendants, cannot be the reviving or continuing of pre-existing relations between the parties to this check, but must be a new contract of suretyship on the part of defendants of the certification by the bank. A thing which is absolutely different from, and foreign to, their original undertaking. The doctrine that an indorser may waive the laches or lack of formalities on the part of the holder which, in strictness, were necessary to charge him as such indorser, is recognized, but that doctrine cannot be invoked where the maker and indorser have been discharged by a payment of the obligation upon which they were liable. The defendants in this case could be held as sureties for the certifying bank only by entering into a new contract of suretyship. That contract would require a consideration. The writing referred to is based on no consideration and therefore it does not and cannot constitute such contract.

Upon the undisputed facts in this case the defendants were entitled, as a matter of law, to an instructed verdict in their favor. The court was in error in not granting their request to that effect.

The judgment is reversed, and a new trial ordered.

Carpenter, Blair, Ostrander, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PEOPLE v. PECK.
    1. Criminal Law —Second Jeopardy — New Trial'After Reversal.
    The rule that a conviction of one of the offenses charged in an information operates as an acquittal of the others, so as to bar a trial for them after reversal, should be confined in its operation to cases where the principal offense charged includes within it lower grades of crime, and should not be extended to cases in which the same offense is charged in different ways in several counts. Hooker and Montgomery, JJ., dissenting.
    2. Indictment and Information — Several Counts — Eleotion.
    Where respondent’s counsel raise no question of the right of the people to try respondent upon both counts of the information until after the proofs are closed, the court is not limited to the face of the information in determining whether the two counts charge the same offense, but may interpret the information in the light of the evidence before the court when the question is presented.
    3. Same — Identity of Offenses.
    Respondent obtained money from the prosecuting witness to be used in buying State tax lands and sent it to the auditor general, who, being unable to comply with the application, returned the money to respondent in the form of a draft of the State treasurer payable to respondent’s order Respondent cashed the draft and converted the money to his own use. Held, that counts charging (1) that respondent embezzled the money, and (2) that he embezzled the draft thereby committing larceny, both based upon section 11570, 3 Comp. Laws, charged the same offense.
    A Criminal Law — Appeal—Questions Review able — Scope of Objection Below.
    Where the objection below to allowing the stenographer to read the testimony of a deceased witness went to the competency of the testimony itself regardless of authentication, the objection that the prosecution failed to make preliminary proof of the accuracy of the stenographer’s minutes, first raised in this, court, will not be considered.

      5. Same — Evidence—Harmless Error.
    Where respondent’s counsel made his opening statement to the jury before the people’s evidencie was offered, and admitted receipt by respondent of the money claimed to have been embezzled, and stated that the only issue on trial was the fact of a certain settlement, error in admitting documentary evidence tending to show receipt of the money otherwise abundantly proved is not prejudicial.
    6. Same — Evidence—Admissions of Complaining Witnesses.
    On the trial of an information for laroeny by embezzlement, evidence that the complaining witness, deceased at the time of the trial, had made statements tending to show that the transaction in issue had been settled, is inadmissible, the complaining witness not being a party to the suit, and the testimony being admissible only as impeaching and his attention not having been called to the statements.
    7 Same — Trial—Argument of Counsel.
    Convictions in criminal cases will not be. re versed because of the impassioned arguments of the prosecuting officers unless the court can clearly see that such arguments were unwarranted by the evidence and probably contributed to the result.
    8. Same.
    Where the verdict of guilty is the only one that could have been honestly rendered upon the record, and there was ground for arguing that the respondent had committed forgery and subornation of perjury to defend himself against the charge upon which he was being tried, such argument is no ground for reversal.
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted May 8, 1906.
    (Docket No. 150.)
    Decided February 5, 1907.
    William Peck was convicted of larceny.
    Affirmed.

      Turner & Turner, for appellant.

      George 8. Lovelace, Prosecuting Attorney, and Charles B. Cross, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The defendant, who had received a check for $250 from the complainant, to be used for purposes agreed upon, was charged with diverting it to his own purposes. The-transaction occurred several years ago, but his misuse of the check having been recently discovered, he was prosecuted upon an information containing five counts.

The first was a charge of the larceny of a check for the sum and value of $250 on November 12, 1897. The second charged the larceny of $250 in money on December 17, 1898. The third charged statutory larceny under 3 Comp. Laws, § 11570, by conversion of the check for $250, the same having been delivered to him on November 12, 1897. The fourth charged the embezzlement of $250 in money under the same statute on December 17, 1898. The fifth charged the embezzlement of the check under the same 'statute on December 17, 1897.

Upon a trial the first three counts were nolle prossed, and the defendant was convicted under the fourth count. A new trial being ordered by this court [139 Mich. 680], both fourth and fifth counts were submitted to the jury, and defendant was convicted under the fifth count.

It was contended that the conviction upon the fourth count was an acquittal of the offense charged in the fifth count, and that the court should not have submitted the case to the jury upon the fifth count at the later trial. Counsel for the people contend that as this information did not charge separate offenses, but merely one charge, which it stated differently in separate counts to meet the proof, whatever it might be, they all charged substantially the same thing, and a conviction upon one count was not an acquittal upon the other. In Lesslie v. State, 18 Ohio St. 390, they find authority for this statement. The great weight of authority sustains the proposition that a conviction upon one count is an acquittal upon others, and the case of Dealy v. U. S., 152 U. S. 539, is directly in point upon the question raised here. See, also, Selvester v. U. S., 170 U. S. 266, 267, In re Franklin, 77 Mich. 615; Tiffany on Criminal Law (5th Ed.), p. 478 et seq. Many other cases are cited. Cooley on Constitutional Limitations (7th Ed.), p. 470.

We have no alternative but to reverse the judgment, and, as the defendant has been acquitted of one count upon the first trial, and the other upon the second, the defendant should be discharged.

Montgomery, J., concurred with Hooker, J.

Blair, J. The weight of authority, perhaps, supports Justice Hooker’s opinion in this case, if our determination of the offense charged is limited to the face of the information. It is worthy of consideration, however, that, since the decision in Dealy v. U. S., 152 U. S. 539, the Federal Supreme Court has held, in Trono v. U. S., 199 U. S. 521, that, upon a new trial granted on defendant’s appeal, he must take the burden with the benefit, and go back for the new trial upon the whole case. While our decisions are not in harmony with that in the Trono Case, I think they should be confined in their operation to similar cases where the principal offense includes within it lower grades of crime, and should not be extended to cases like the present. The statute under which respondent was charged and convicted reads as follows:

“If any person to whom any money, goods, or other property which may be the subject of larceny, shall have been delivered, shall, embezzle or fraudulently convert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money, or other property, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny.” 3 Comp. Laws, § 11570.

The fourth and fifth counts of the information are as follows:

“ And also that heretofore, to wit, on the 17th day of December, A. D. 1898, the' said William Peck to whom then and there had been delivered the sum of two hundred and fifty dollars of the goods and chattels and property of the said Nathan H. Webb, the same being goods and chattels and property which may be the subject of larceny, and having then and there been delivered to the said William Peck as the goods, chattels, and property of said Nathan H. Webb, said William Peck did embezzle and fraudulently convert to his own use, thereby committing the crime of larceny, and did then and there in the manner aforesaid feloniously steal, take and carry away the said two hundred and fifty dollars, of the value of two hundred and fifty dollars of the goods and chattels of the said Nathan H. Webb, contrary to the form of section 11570 of the Compiled Laws of the State of Michigan, in such case made and provided, and against the peace and dignity of the people of the State of Michigan.
“ And also that heretofore, to wit, on the 17th day of December, A. D. 1897, at the county aforesaid, the said William Peck to whom had then and there been delivered a certain check drawn by the treasurer of the State of Michigan, payable to the order of the said William Peck, for. the sum of, to wit, two hundred sixty-seven dollars, of the value of, to wit, two hundred sixty-seven dollars, said check being the goods, chattels, and property of the said Nathan H. Webb, and the said check being goods, chattels, and property which may be the subject of larceny, and having then and there been delivered to the said William Peck as the goods, chattels, and property of the said Nathan H. Webb, the said William Peck did embezzle and fraudulently convert to his own use, thereby committing the crime of larceny, and did then and there in the manner aforesaid, feloniously steal, take, and carry away the said check for two hundred sixty-seven dollars, of the value of two hundred sixty-seven dollars, of the goods, chattels, and property of' the said Nathan H. Webb, contrary to'the form of section 11570 of the Compiled Laws of the State of Michigan in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

Respondent’s counsel raised no question of the right of the people to try the respondent upon both counts, until the proofs were closed. Under such circumstances, whatever may be the rule where the question is raised seasonably, the court is not limited to the face of the information in determining whether the two counts charge the same offense, but may interpret the information in the light of the evidence before the court when the question is presented. People v. McKinney, 10 Mich. 54; Van Sickle v. People, 29 Mich. 61. The circuit judge, therefore, did not err in holding that the two counts charged the same transaction in different forms, if the testimony warranted such a conclusion, as I think it did.

The respondent obtained from Webb money to be devoted to the purchase of State tax lands, and for this money he was accountable to Webb. Respondent sent this money to the auditor general in pursuance of his duty. The auditor general, being unable to comply with respondent’s application, returned the money in the form of a draft of the State treasurer for $267, payable to the order of respondent. Respondent converted the treasurer’s draft into money, as he had a right to do, and he then had what he originally had, the money of Mr. Webb, for which he was accountable to Mr. Webb. Respondent converted this money to his own use, and he thereupon became guilty of larceny under the statute quoted.

As the circumstances appear in the record, the only way the conversion of the draft was shown was by showing that respondent converted it into money and then stole the money. Precisely the same testimony was necessary to convict under either count, and the elimination of either count would have made no change in the proofs. The only difference between the two counts as applied, to the evidence is that one count charges that he formed the felonious intent to convert Webb’s money to his own use before he cashed the draft, while the other charges that he formed the felonious intent to convert Webb’s money after he cashed the draft. The essence of both counts is that he stole Webb’s money. Both juries found, in substance, that respondent stole Webb’s money; they only differed as to when he formed the felonious intent. Not only was there but a single transaction between the parties involved; there was a single state of facts throughout. What difference does it make whether respondent converted the State treasurer’s draft or the money procured by his indorsement of the draft and its presentation' at a bank, or whether he embezzled all of the money on Monday or a part of it on Monday and the remainder on Tuesday? The inquiry, so far as criminal purpose and the accomplishment of such purpose is concerned is, Did respondent or did he not convert to his own use the money which Webb put in his charge? If he did convert that money to his own use, all of the elements of a single offense are present, whether he conceived the criminal purpose while he held the draft, while he was counting the money obtained by it, or after he left the bank.

This case is not similar to cases where the respondent is charged with a principal offense and convicted of a lesser offense included in it, or where he is charged with distinct offenses in separate counts. As said by the supreme court of Ohio in Lesslie v. State, 18 Ohio St. 395:

“Where the indictment, though consisting of several counts, is founded upon a single transaction, the verdict is a unit, and lays the foundation for but a single judgment. A verdict of 1 guilty ’ upon one of the counts and of ‘ not guilty ’ upon the others is followed by the same legal consequences as a verdict ■ of guilty upon all the counts, and when, in either case, the verdict is set aside and a new trial granted on the defendant’s motion, the case is opened for retrial upon the counts upon which he was acquitted, as well as those upon which he was convicted. If this were not so, the value and object of the rule allowing a single offense to be charged in different ways in several counts would be greatly impaired, and often defeated.
‘ ‘ But where the several counts of an indictment are for separate and distinct offenses, the verdict is necessarily several in its nature, and the finding as to each offense constitutes the basis of a separate judgment. It is the same in effect as if rendered on separate indictments.
“ In such case the granting of a new trial, on conviction of one offense, has no connection with the verdict of acquittal of others, and the latter may well be allowed to stand and have effect, though the former should be set aside.
“The position taken by counsel for the plaintiff in error is supported by authorities cited in their brief. But it seems to us that in these eases a correct principle was misapplied.
“We think the principle contended for properly applies where there is a conviction and an acquittal on different counts for separate and distinct offenses, or where part of the defendants are acquitted and part convicted of the same offense, but that where all of the counts are for the same offense, and are varied merely to meet the proof, it has no just application.
“ Judgment affirmed.”

I think it is open to us under our decisions to follow the rule established by the Ohio court. That rule is consistent with reason and justice, and I am in favor of its adoption by this court.

Respondent’s counsel also contend that:

(1) The court erred in permitting the testimony of the deceased complaining witness, Webb, taken on the first trial to be read by the stenographer without proof of the accuracy of his transcript.

(2) The court erred in receiving in evidence certain checkbook stubs, letters, etc.

(3) The court erred in refusing to permit testimony of a conversation of a witness with Webb, by which it was offered to show that Webb acknowledged receipt of his money.

(4) The court erred in permitting improper and prejudicial argument by the prosecuting attorney.

The stenographer who took down the testimony of Webb on the previous trial was called as a witness to read such testimony, whereupon the counsel for respondent made the following objections:

“ Mr. Turner: I desire at this time to object. I would like to place my objection upon the record. In the first place we have a constitutional provision, being section 28 of article 6 of the Constitution of ,this State, reading as follows: [Reads.]
“ Now, the court has held that the word ‘confronted’ upon the trial before a jury means face to face.
The Court: If you have got any authorities on that point, aside from the article, I would be very glad to see them.
“Mr. Turner: I want to state further: Of course it will be claimed by the prosecution that, in the case of the death of a witness that that forms an exception to this constitutional provision, because I suppose he will claim that the party has been confronted, and had an opportunity to cross-examine the party in this case. As the court will, I think, take judicial notice of the fact that this case has been before the Supreme Court of this State, and the opinion handed down in the case, whereby the Supreme Court of this State found that there was error in certain testimony given by Mr. Webb on the trial of this case; that is, the witness they seek now to introduce the testimony of. Now, what I claim is this: That, where testimony is allowed to be read, are in those cases where the testimony is competent and never in a case where the testimony is incompetent.
“Now, this being the exception to the constitutional provision, it would be incompetent, under the decisions of the Supreme Court, to present that fabric of the testimony just as it was given by the witness on the former trial; part of it being incompetent would exclude the rest, for the reason that the testimony must be put in the case of the decease of a witness just as the witness had given it, the entire part of it.
“ If the testimony could be admitted as an entirety and placed before the jury, just as Judge Campbell intimates in [People v. Sligh], 48 Michigan [58], it should be, that would be one question, then that testimony would be admissible, but where a part of it has been held incompetent, we claim they cannot cull out portions and introduce that, while a portion of it might be competent, if that constituted it all. Where a part is incompetent, it renders the whole incompetent in this class of cases; that is our proposition. And I make the further objection that there is nothing to warrant this testimony under any rule of law.
“The Court: I will overrule that objection.
Mr. Turner: Give me an exception.
“Mr. Lovelace: Of course, it is not the desire of the prosecution to introduce into this case any testimony that has been held incompetent, and when we reach that stage of the case, why I suppose the objection of counsel will be sustained.
Mr. Turner: There we come right up against the proposition again; there is just the point exactly; some of this objection was made by way of a motion to strike out testimony after it was in. That testimony goes before this jury that the Supreme Court held incompetent.
“Mr. Lovelace: I don’t know any reason why they cannot object in the first instance.
“The Court: We will try and not get in any testimony that is improper if we can avoid it.
“Mr. Turner: An exception.
“Mr. Lovelace: I would suggest that the questions might be repeated by the stenographer and that will give them an opportunity to make any objections in the first instance they desire.
“Mr. Turner: I object to this as incompetent, irrelevant, and immaterial.
“The Court: Well, go on.
“Mr. Turner: Take an exception. We do not care to 'consent to anything.
“ The Court: Let us have the testimony; we will not take the testimony that was held to be incompetent if you will just keep track of that. Let us move along, gentlemen, the question is about this testimony.
‘Mr. Turner: Read it slow.
“The Witness: I am going to read it from a copy I made of it, if there isn’t any objection to that. Testimony referred to read as follows.”

As appears from the objections above set forth, no specific • objection was made upon the ground that the stenographer’s minutes had not been properly authenticated, and the court was justified in supposing that the objections were limited to those specifically pointed out. The objections specified went to the competency of the testimony itself regardless of authentication, and the objection that the prosecution failed to make preliminary proof of the accuracy of the stenographer’s minutes is raised for the first time in this court. Under such circumstances, we must decline to consider the objection as a ground for reversal.

Counsel for respondent made his opening statement to the jury immediately after the prosecuting attorney’s opening and before any testimony had been introduced. In the course of his statement he said to the jury:

„ “Now, the result was Mr. Peck sent this money, as the evidence will show you, to the auditor general’s office, for the purchase of this property known as the ‘Sadler Block;’ that, because it had been redeemed, he received the money back, and on this 19th day of May in the store of the Montague Hardware Company there, they figured up — the individual account that he has owing Mr. Peck amounts, I think, to $125 — and Mr. Peck goes to his safe and gets the balance of $250, which they figure up is the amount of the settlement, and pays Mr. Webb that amount, and takes his receipt in full satisfaction of the debt, waiving the provisions of the contract made on the Ferry property that would have entitled him by its terms as we will show you, gentlemen of the jury, when that is introduced in evidence, to one-half of that money, but he takes and figures out the individual account existing between him and Mr. Webb, which amounts to $125, and pays him the other $125.”

It is apparent from this statement, as well as from previous testimony of respondent, read in evidence, that the only substantial issue between the parties was whether respondent had repaid the money which he admitted he had received. Aside from the admissions of respondent and his counsel, there was an abundance of competent proof of his receiving the money, and if errror was committed in any of the rulings complained of, which we do not decide, it was not prejudicial to respondent.

Bespondent made the following offer of proof, which was rejected by the court:

“Mr. Turner: I offer to show by this witness that in May of 1900 he worked about 3 hours for Mr. Webb, and was then told by him that he couldn’t get any money because he didn’t have any at that time for his work, and that he quit. In the early part of June of the same year, June of 1900, Mr. Webb informed this witness that he had settled up the matter of this Sadler block deal and had received the money from Mr. Peck that he had furnished to purchase the tax title on this Sadler block, and I offer to show further that this was not communicated to Mr. Peck until the last few days and not until after the death of Nathan H. Webb.
Mr. Lovelace: I object to the admission of any such testimony.
“The Court: I don’t believe that is proper; I don’t think it would be if Mr. Webb was alive and I doubt if it is proper now.
“Mr. Turner: I understand what the rule is generally, I think, as well as anybody; the rule is that, if Mr. Webb was living, this should be called to his attention and he be interrogated about it before this testimony could be put in; that is correct, there isn’t any question about that, but that is beyond the range of possibilities now, and to close the door on a man for proof on account of an unforeseen occurrence of which he had no knowledge would certainly, it seems to me on the face of it, be the height of injustice. * * * We were treating this matter this morning when your honor made the ruling that you did, as if this was rebuttal testimony — that is, if it was testimony competent on the impeaching line — and the attention of Mr. Webb should be called to it, should have been called to it before it would be admissible. I think admissions made by the party such as we claim in this case in the statement that I have made on the record are admissible as affirmative proof even though the party be dead.”

This offer was properly refused. Webb was not a party to the criminal case, and therefore his admissions or contradictory statements could not be introduced as affirmative or original evidence. It was essential to the admissibility of the testimony that Webb’s attention snould have first been called to it. Belt v. State, 103 Ga. 12; Mattox v. U. S., 156 U. S. 237.

We are not disposed to reverse convictions in criminal cases because of the impassioned arguments of the prosecuting officers unless we can clearly see that such arguments were unwarranted by the evidence and probably contributed to the result. The verdict of the jury is the only one they could have honestly rendered upon this record. There was ground for arguing that the respondent had committed forgery and subornation of perjury to defend himself against the charge upon which he was being tried, and the prosecuting attorney, believing such charges to be true, was justified in using strong language. We do not find anything in the arguments complained of which, in our opinion, would justify the reversal of a verdict manifestly correct. People v. Tubbs, ante, 1.

We have discussed such of the 110 assignments of error as in our opinion merited special consideration. We find no reversible error in the record, the conviction is affirmed, and the record remanded to the circuit court for Muskegon county for further proceedings.

McAlvay, O. J., and Carpenter, Ostrander, and Moore, JJ., concurred with Blair, J.


author: Carpenter, J.

text:
    WATZ v. SUNDERLAND.
    Constitutional Law — Due Process of Law — Highways—Statute — Validity.
    Section 4061, 2 Comp. Laws, providing that all highways shall be four rods in width, cannot be construed to transfer to the public land actually owned, possessed, and occupied by the owner of land abutting on a highway, without giving him any opportunity of contesting the claims of the public or of asserting his own rights, since such a construction would render it unconstitutional
    Error to Lapeer; Smith, J.
    Submitted June 7, 1906.
    (Docket No. 47.)
    Decided February 5, 1907.
    Trespass under 2 Comp. Laws, §§ 4122-41-26, by Christian Watz, highway commissioner of Mayfield township, against William J. Sunderland. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed, and no new trial ordered.

      William E. Brown, for appellant.

      Gleer, Williams & Halpin, for appellee.
   Carpenter, J.

In 1888 proceedings were taken to lay out a highway between sections 5 and 8, in the township of Mayfield, Lapeer county. Those proceedings were jurisdictionally defective. The public, however, commenced using this highway and has continued to use it to the present time. The traveled portion of said highway was situated upon section 8. In 1888 one Dell Brown owned the land on both sides of said section line. In 1891 Brown sold to defendant the land in section 5 on the north side of said section line. In 1892 and 1893 defendant built a house and inclosed his land by a fence, which has ever since been maintained, and both the house and fence are situated within less than two rods of the section line. Since the building of said fence, defendant (it is to be inferred) has used the inclosed land as a part of his farm.

Plaintiff, as highway commissioner, commenced these proceedings under sections 4122 to 4126 of the Compiled Laws of 1897 to procure an adjudication that the fence of defendant was an encroachment upon the highway. He secured a judgment in the circuit court. The judgment proceeds upon the theory — and it can be supported on no other theory — that section 4061 of the Compiled Laws of 1897 gave the public a title to the strip of defendant’s land two rods in width, north of the section line, because it had used for more than 10 years an adjacent strip for highway purposes. Has section 4061 this effect ? This is the determining question in this case. That section reads as follows:

“All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used eight years or more, shall be deemed public highways, subject to be altered or discontinued according [to] the provisions of this act. All highways that are or-that may become such by time and use, shall be four rods in width, and where they are situated on section or quarter-section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be two rods in width on each side of such lines.”

The land in controversy was undoubtedly defendant’s at the time he inclosed it in 1892 and 1893, and it is clear that no one had any right whatever to interfere with his possession until a highway by user had been established, according to the terms of the section above set forth. Has he now lost his land by virtue of said section, because the public have for many years used an adjacent strip as a highway ? It is important to be noted in this connection that defendant was powerless to prevent the use of this strip as a highway, because the roadbed did not lie on lands owned by him. The application of section 4061 to this case depends upon the proper construction of the following language found in said section, viz.:

“All highways that are or that may become such by time and use, shall be four rods in width, and where they are situated on section or quarter-section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be two rodp in width on each side of such lines.”

To so construe this language- as to uphold the judgment of the lower court is to declare that it transfers to the public land actually owned, possessed, and occupied hy defendant without giving him any opportunity whatever of contesting the claims of the public or of asserting his own rights. As thus construed, the law is a bald legislative attempt to transfer to the public the property of one of its citizens. It cannot be so construed, because such a construction would render it unconstitutional. This precise question was involved in Groesbeck v. Seeley, 13 Mich. 329, where this court held unconstitutional a statute declaring that the title to lands bought by the State at tax sales should be absolute and indefeasible after five years. The same principle was applied in O'Connor v. Carpenter, 144 Mich. 240, where this court approved the statement of Judge Cooley :

“One who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts but takes no steps to enforce. ” Cooley on Constitutional Limitations (7th Ed.), p. 522.

We are therefore constrained to hold that section 4061, 2 Comp. Laws, has no application, that the trial court erred in not directing a verdict for the defendant, and that the judgment should be reversed, and no new trial ordered.

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


text:
    TAYLOR v. RONIGER.
    1. Subrogation — Mortgages—Payment—Effect.
    Where, as a part of the consideration of a conveyance which in fact did not transfer title, the grantee assume^ and paid in good faith a valid mortgage on the land intended to be conveyed, he became the equitable owner of the mortgage and entitled to have it declared a subsisting lien upon the land.
    2. Execution — Sale—Injunction—Grounds —Remedy at Law,
    Defendant in ejectment, against whom judgment has been rendered, may maintain a bill to restrain the sale of the land under an execution issued on the judgment, where he has, as the equitable owner of a mortgage on the land, a lien thereon, a court of equity being the only forum having jurisdiction to determine his rights.

      3. Equity — Jurisdiction—Ejectment — Abandonment by Plaintiff.
    The election of a plaintiff in ejectment to abandon the land and take judgment for its value without improvements does not oust the chancery court of jurisdiction of a bill to declare defendant in ejectment entitled to a lien on the land for a mortgage he has paid thereon, since the court has jurisdiction of the parties and the subject-matter, and under the prayer for general relief can make such decree as equity requires.
    4. Taxation — Payment of Taxes — Person in Possession — Lien on Land
    Where a person in possession of land in good faith as owner pays a valid mortgage thereon, and on losing the land obtains a decree declaring himself the equitable owner of the mortgage and entitled to enforce it as a lien on the land, he is not entitled to claim as a part of that lien the amounts he has paid as taxes during his possession, such claim being allowable only as against a claim for use and occupation.
    Appeal from Kalkaska; Chittenden, J.
    Submitted June 7, 1906.
    (Docket No. 53.)
    Decided February 5, 1907.
    Bill by Henry Taylor against Hattie M. Roniger to establish an equitable assignment of a mortgage, to foreclose the same, and to enjoin an action at law. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Ernest O. Smith, for complainant.

      Parm G. Gilbert, for defendant.
   McAlvay, C. J.

James L. Taylor and Hattie M. Taylor, his wife, on May 21, 1883, became jointly seised as husband and wife of 40 acres of land in Kalkaska county. At the time there was a mortgage of $100 upon this land bearing interest at the rate of 10 percent., which they by stipulation in the deed to them assumed and agreed to pay. These parties were divorced January 18, 1889. On January 23, 1889, said James L. Taylor conveyed these premises by warranty deed to Henry Taylor, complainant in this suit. Hattie M. Taylor did not join in said conveyance. Complainant went into possession of said premises, cleared and improved them, and paid all the taxes, and has occupied the same up to the present time. Believing that he had obtained a good title to the premises, he paid the interest from year to year, and on March 15, 1891, paid the full amount of the mortgage and interest to the mortgagee, and took a discharge of the same. James L. Taylor died shortly after the sale of the land to complainant. The full legal title to the premises by virtue of survivorship then vested in his divorced wife, now known as Hattie M. Roniger, who is defendant in this suit. She never asserted her interest until January, 1904, when she began an action in ejectment as owner of the fee of said land in Kalkaska circuit court against this complainant to recover possession, and recovered judgment against him in said ejectment suit in August, 1904. In this suit as defendant, this complainant was awarded $500 for improvements claimed. The value of the premises without the improvements was fixed by a jury at $450. Plaintiff in ejectment elected to abandon the premises to the defendant, and took judgment against him for said $450 and costs, amounting altogether to the sum of $543.10.

Pending said ejectment suit, and before the trial thereof, the bill "of complaint in the suit at bar was filed July 18, 1904, by complainant against defendant, asking that he be decreed to be the equitable assignee of the mortgage he, as hereinbefore stated, had paid, and for the foreclosure of said mortgage, and for general relief. After the judgment against him in said ejectment suit, and before the hearing of this case, the plaintiff in said ejectment suit, who is the defendant in this case, levied an execution on said premises, and proceeded to advertise the same for sale to satisfy the amount of said judgment. Complainant then upon petition in this suit asked for and was granted by the court a temporary injunction restraining defendant from proceeding to sell said land until after the hearing of this case, and until the further order of the court. The court after hearing this case granted the complainant a decree for the full amount of the mortgage and interest, including the taxes paid by him, to the amount of $408.12, as due from defendant to him, and also declared the same to be a lien upon the premises, and perpetually restrained defendant from proceeding to collect her judgment in ejectment under her execution lien and levy against complainant, except to the amount of the difference between said judgment and the amount of the decree and costs. From this decree defendant has appealed. Such objections of defendant to this decree as are necessary to the determination of the case will be considered.

It is urged that the court had no jurisdiction to restrain the sale of the premises under execution issued on judgment in the ejectment case. The temporary injunction was issued December 80, 1904, several months after this bill was filed, upon petition showing that defendant had recovered judgment in the ejectment suit against him; the nature of the judgment as above set forth; that a sale was to be made of these premises December 31, 1904, under execution levy on said judgment; and that defendant had no property subject to execution. Afterwards, on January 17, 1905, defendant under oath answered the bill of complaint, denying any equities in complainant, alleging that a demurrer theretofore filed was well taken, and that she had no interest in the matter, having sold and assigned said judgment to Lewis B. Tryon, and adding a demurrer clause to the answer. Later, on May 1, 1905, defendant filed a general answer, complying with the rule as to answering bills of complaint. This answer contained practically the same allegations as the first, but contained no demurrer clause. This first answer is claimed to have been an answer to the petition for an injunction. It is not such in form, and was never considered by the court. No mention of the injunction is made in it. No motion was ever made to dissolve the temporary injunction, and the first objection to it appears in the brief of defendant and appellant in this court. The final decree in the case perpetually restrained defendant from enforcing her execution levy against said premises, except as to the excess over the amount decreed due to complainant. This will be considered later. The claim of defendant, that complainant did not show that he had paid this mortgage, is not supported by the proofs. He is shown to have paid the mortgage in full. The mortgage and note showing indorsements of interest were surrendered to him and were produced, having been delivered to him together with a discharge by the Grand Rapids Bank, through which he paid the final balance of $106. He also produced postal cards received from the wife of the owner of the mortgage to whom the note had been indorsed by the husband, who was sick. These cards showed authority to the bank to receive the money.

The other objections to the decree are that this mortgage was upon property owned by complainant and assumed by him when he purchased; that he had notice of the condition of the title in defendant when he purchased; that his remedy was by review of the judgment in the ejectment case; and that the court had no jurisdiction to render a decree directing payment of the mortgage by charging the same as an offset against the amount of the judgment in ejectment, nor to enter a decree for the amount specified.

Complainant at the time he filed this bill of complaint, if the allegations thereof were true, was entitled to the relief prayed. At that time the fee to the land was in defendant by survivorship. Defendant had been divorced from her husband, and complainant, understanding that His grantor’s deed conveyed the fee of the land to him, paid this mortgage in full and took a discharge. This discharge was not recorded, and does not appear in the record. His testimony that he received it was not disputed, and. is corroborated by a letter from the owner that it would be sent to him. Defendant and her husband, when they purchased the property, assumed and agreed in writing to pay the mortgage. Complainant purchased the land for |300 cash, understanding that he was obtaining the title in fee subject to the incumbrance. He paid the mortgage thinking he was relieving his own land from the incumbrance, and having paid the mortgage upon the land which in fact he did not own became its equitable owner, and entitled to be so considered and to have the same declared to be a subsisting lien upon the land. A court in equity was the only forum having jurisdiction to determine these questions. On the trial of the ejectment case, begun by the defendant nearly 15 years after complainant went into possession, the legal title of the plaintiff was admitted. The contest was concerning the value of the improvements. In that case the questions relative to the payment of this mortgage and its equitable ownership could not be litigated, and an appeal from that judgment would not determine the questions here litigated. This case was pending at the time of the trial of the ejectment suit, and both parties had full knowledge of the questions here involved. Did the election of the defendant in her ejectment suit to abandon the land and take judgment for its value without the improvements operate to oust the court of equity of jurisdiction in this case ? We hold that it did not. The court had jurisdiction of the parties and of the subject-matter of the suit, and under the general prayer for relief could make such decree as equity demanded. In restraining the sale of the land pending this suit, no injustice was done defendant. Her lien upon the premises was in no way impaired. She was not produced as a witness in the case, and offered no evidence that she had assigned her judgment. There was no dispute as to the amount due on the mortgage the complainant had paid, nor upon any material fact in the case. The mortgage was a personal obligation against defendant by her agreement in writing to pay it. To require her to satisfy this obligation out of her judgment, leaving her lien upon the land for the balance and her costs was strictly equitable between these parties. The pleadings are not in condition to raise the question that the statute of limitations is a bar to the recovery of a personal decree against her.

The claim for taxes paid by complainant cánnot equitably be allowed against defendant. There appears to be no reason why he should not have paid the taxes upon this land which he has occupied and enjoyed for this term of years and to which he was not entitled. If, as the record intimates, there is pending against him a suit for the use and occupation of these premises (the consideration of the value of which use and occupation was specifically eliminated from the ejectment case by the court), the taxes paid for those years which may be included in that suit would be a proper item to be there considered and credited to complainant in case he should be held legally liable for such use and occupation.

The decree in that respect will be modified, and the amount of $139.22, which was allowed the complainant for taxes paid by him and interest thereon, will be deducted, leaving the amount of his lien under the mortgage due him at the time the decree was entered to be the sum of $268.90. With this modification, the decree is affirmed, with costs to appellant.

Carpenter, Grant, Hooker, and Moore, JJ., concurred.


author: Blair, J.

text:
    BOAM v. GREENMAN.
    Specific Performance — Contract to Convey — Oral Contract —Evidence to Establish — Sufficiency.
    On a bill against administrators to enforce specific performance of an alleged parol contract of their intestate to give complainants a farm in consideration of support and care, evidence examined, and held, insufficient to sustain the burden of establishing the contract.
    Appeal from Ingham; Wiest, J.
    Submitted October 11, 1906.
    (Docket No. 52.)

    Decided February 5, 1907.
    Bill by Andrew Boam and Louisa Boam against James Greenman, Minnie Oostigan, and Melzar Turner, administrator of the estate of Jacob D. Greenman, deceased, for the specific performance of a land contract. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Q. A. Smith and O. J. Hood, for complainants.

      Charles F. Hammond (Bollin H. Person, of counsel), for defendants.
   Blair, J.

This is a suit instituted to compel the specific performance of an oral agreement alleged to have been made by complainants with Jacob D. Greenman, since deceased. The defendants are, respectively, a son, a daughter, and the administrator of the estate of said Jacob D. Greenman, deceased. The oral agreement, as stated in the bill of complaint, was as follows: That the said Jacob D. Greenman:

“Promised to complainants that, if they would return to his said farm and live there while he lived, allowing him to have one-half of the proceeds of the farm, by doing such work as his health might permit of, to enable him to pay the taxes, keep up repairs on the place, purchase his necessary clothing, and medicines and medical attendanee, complainants furnishing him with board, lodging, washing, and mending, care, and attention in sickness, that he would give to said complainants the said farm and everything on the place, and stated and promised to complainants that he would make out writings that would show complainants’ right and title thereto.”

In 1892, Jacob D. Greenman lived on the land in question in this suit about three-quarters of a mile west of Pine Labe, in Ingham county. His family at that time consisted of himself, his wife, and two children, James Greenman and Minnie Costigan. He had parted with his wife and instituted proceedings for a divorce. He had become estranged from his daughter and they never spoke together afterwards. He had other land' but had conveyed it to his son, James, subject to a life use by his wife, in the property settlement. His wife had taken up her residence with her son, James, on the land deeded to him subject to her life use. So far as the record discloses, Mr. Greenman was on friendly terms with his son and with his granddaughter, Dulcie Costigan. In the spring of 1892, Mr. Greenman agreed with complainant Andrew Boam, a brother Odd Fellow, that he should move upon the place and work it on shares on the terms of furnishing half and having half and allowing Mr. Greenman to retain a certain bedroom off from the parlor for his own use and occupancy. Complainant Boam and his family occupied the premises until the spring of 1900, when they moved to Presque Isle county, where Mr. Boam had purchased 40 acres of land, and upon which he erected a small house. The relations between Jacob Greenman and the Boam family seem to have been very cordial and he ' visited them while they were on the homestead in Presque Isle county. It is the contention of complainants that it was on one of these visits that the contract in question was made, in pursuance of which the Boams returned to and occupied the Greenman farm near Pine Lake.

There was testimony on behalf of complainants tending to show that complainants were reluctant to return, and insisted before agreeing to return that Mr. Greenman should, put the proposed agreement into writing, which he promised to do upon his return to Ingham county, saying that he was better acquainted there. There was also testimony tending to show that several letters were written, requesting the return of the Boam family and referring to the agreement, but none of such letters were produced and some evidence was given tending to show that they might have been lost on the return from Presque Isle to Ingham county. Complainants do not appear to have called Mr. Greenman’s attention to his promise to execute written evidence of their agreement after their return to Ingham county. Complainants’ main contention as to the terms of the agreement was based upon statements alleged to have been made by Jacob D. Greenman-to complainants and different members of their family and to persons outside the family as to his intention in that rogard and his statements as to what he had actually done. The defendants rely upon, in their defense, and-give testimony tending to show, statements, admissions, and acts of -the complainants inconsistent with the agreement as claimed by them. Testimony of oral admissions has always been regarded as the least satisfactory evidence for the establishment of disputed facts. Obviously, the value of such testimony depends largely upon the intelligence of the transmitter, the accuracy of his memory, his freedom from bi.as, and his opportunity to receive and understand and faithfully interpret the language and meaning of the person whose admission is the subject of his testimony. Such testimony is much less satisfactory when the only person who could correct it is dead, as in this case, and the dangers of testifying falsely or incorrectly are absent. In the case of the testimony of admissions by complainants, the complainants were present in court with the members of their family and able to and did answer such testimony, and though still of an unsatisfactory class, it has some sanctions which are absent from those attending the testimony of the admissions of a dead man. Numerous witnesses were sworn on both sides of the case, and presumably all the testimony that could be procured on either side was brought before the court. The circuit j udge, after hearing all the testimony, filed an opinion in which he held that complainants had not sustained the burden of proof which rested upon them to establish the making of the contract by a preponderance of the evidence.

This is a case where, in view of the sharp conflict of the testimony, complainants and the members of the family contradicting absolutely the testimony of apparently disinterested witnesses, some weight should be given to the well-settled rule that in cases where the question is close as to where the preponderance of 'the evidence lies, this court will attach importance to the finding of the circuit judge. It is also a case where the burden of proof should be deemed of considerable importance. A great many witnesses were sworn in the case, and, in order to properly discuss the questions of fact involved, it would be necessary to occupy a great deal of space, with no corresponding advantage to the parties or the profession. It is apparent from the opinion of the circuit judge, that he credited the testimony of the son, James Greenman, his uncle, Scott Greenman, who were interested in the result, as supported by several other witnesses who were disinterested, as to the acts, statements, and representations of complainants immediately after the death and during several weeks following the death of Jacob D. Greenman, to the effect that they were holding the premises as tenants, only, of said Jacob D. Greenman. The complainants, according to their own testimony, had no uncertainty as to their rights under the alleged contract, at least, so far as related to the real estate, and intended to, and claimed that they were occupying the premises from the time of Greenman’s death under that agreement. Such claim is wholly inconsistent and irreconcilable with the conduct of complainants and their statements as testified to by witnesses who were credited by the trial judge, and whose testimony appears to us to have been quite as reasonable as the testimony of complainants. Among other instances, we cite the following: Soon after the funeral, according to the testimony of James Greenman and his uncle, Scott Greenman, they called at the place and talked with complainants about leasing the farm to them:

“Mrs. Boam said she wished I would come over in a few days because it was getting late in the season and they wanted to know whether they were going to stay there or not. She said, ‘ We will rent the place the same as we rented it of your father, or we will pay money rent,’ and I says, ‘ If we can agree on the terms, you can work the place.’ ”

Scott Greenman testified as to this conversation, as follows :

“ We were there the next time in perhaps a day or two afterward, and Mrs. Boam spoke to James about renting the place. Mr. Boam was in the house and Mrs. Boam and some of the girls. Mr. Boam was sitting up dressed. Mrs. Boam did all the talking and says to Jimmie: ‘ It is getting pretty late, and it is not much of a chance to get another place. We would like to know whether we are going to stay here or not. We will rent the place of you just the same as we worked it for your father, or we will pay money rent.’ ”

On another day, James Greenman testified:

‘ ‘ I asked them first how they wanted to rent the place. Hank thought he would rather work the place on shares, the same as he had been working it, but I told them if they rented the place on shares, they could not keep so many chickens on the place, and if they rented the place for money rent, they could keep all the chickens they wanted to. Mr. Boam thought he could not afford to pay money rent, so we did not decide the matter that day. If they paid cash, I told them I would rent for $150. Mrs Boam asked if they could put the wheat in in the fall. I told her I did not know what we would do with the place; maybe we would sell it. She says, ‘ For heaven’s sake, if you sell that place, give us a chance to buy it. Art will work his fingernails off to pay for it if he could buy it.’”

Arthur Boam, a son of complainants, testified, as to this conversation, as follows:

“He came there and said he came to rent the place. I heard him. I don’t know as he addressed anybody in particular. I took it that he was talking with my father and mother. They did not tell him that they wanted to rent the place. I remember that Mr. Greenman said that we could have it for*$150 cash rent. My father told him, he says: ‘Wait a few days, Jim, I am sick, and when I get better, I will see what I can do.’ I don’t remember anything else being said. I couldn’t say how long after Mr. Greenman died it was. That is the only time I heard any talk.”

Complainant Andrew Boam testified as follows:

“I had no talk about it. I had no talk with'him about renting the place of him.
Q. Do you remember any time when he made any proposition to you about the rent ?
“A. Yes, he was over there one night and wanted to— he asked me if I wanted to stay; I would have to pay him $150 for another year. I told him I would think about it. I says: ‘ I am sick. I am not able to talk about doing any business. I don’t know as I want to farm it.’ That was all I said to him. I was sick. I was not able to do no business. We didn’t have any talk about renting it on shares. All the talk between him and I was in regard to that proposition of $150 rent. At the time he was talking about that Art and my wife were there, and I guess the girls were in the room. I think they were. I don’t remember what my wife was doing. I guess she was doing the housework there.”

Isaac Piper testified that on Saturday following Jacob D. Greenman’s funeral he met Mrs. Boam:

“I asked her if they were going to move this spring. She said they hadn’t seen Jimmie since the funeral, that he was visiting with his uncle and they could not tell until they saw him.”

Gilbert Cushman testified to a conversation with Mr. Boam some months before Jacob D. Greenman’s death, in which Mr. Boam said he intended to leave the place as soon as he could get another place. William Seeley testified:

“ I had some talk with Mr. Boam about taking the farm. It was two years ago last spring, I think in April. (This would be the spring of 1903.) It was at my barn. Mr. Boam, my wife, and myself were present. I asked him if he wanted to take my farm. He said he would take it if his son would come home and take it with him. He said he didn’t know whether he would stay where he was or not. He said him and Jimmie Greenman did not get along very well together. I told him I wanted to furnish half and have half.”

It is said that the date shows that this testimony related to an occurrence a year before Jacob D. Greenman’s death, but we think the context clearly shows that it was intended to apply to the April following his death. Other witnesses testified along the same line and the conduct of complainants in permitting James Greenman to remove property which, under the agreement alleged, belonged to complainants, without protest, supported, to some extent, at least, his alleged admissions. Giving to the opinion of the circuit judge that weight as to the credibility of witnesses which we think it is entitled to in a case like this, we agree with his conclusion that the contract alleged to have been made was not sustained by a preponderance of the evidence.

The decree is affirmed, with costs of both courts to defendants.

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


author: Montgomery, J.

text:
    GAINER v. NELSON.
    Navigable Waters — Obstructions—Removal—Power of Supervisors.
    Section. 2494, 1 Comp. Laws, authorizing the board of supervisors to provide for the removal of any obstruction arising from the collecting of logs dr rafts in a navigable stream by any individual, does not contemplate that the board shall engage in removing obstacles to free navigation that have existed for half a century, but refers to removing obstructions concurrently created, and a contract by the board with individuals employing them to remove such obstructions providing that they shall have as compensation whatever they may obtain as salvage from timber and forest products reclaimed from the streams of the county, conveys no title to such products.
    Appeal from Cheboygan; Shepherd, J.
    Submitted October 11, 1906.
    (Docket No. 62.)
    Decided February 5, 1907.
    Bill by William H. Gainer and Henry Storms against John M. Nelson to restrain the removal of timber and logs from certain lakes and streams. From an order sustaining a general demurrer, complainants appeal.
    Affirmed.

      Charles B. Henry, for complainants.

      Frost & Sprague, for defendant.
   Montgomery, J.

This is an appeal from an order sustaining a general demurrer to the bill of complaint.

The bill charges, in substance, that Cheboygan river, Indian river, Mullet Lake, Black river, and Upper Black river are streams and lakes within the borders of Cheboygan county, and in said waters, and in the banks, channels, bottoms, and otherwise, are logs and forest products and timbers, which are fast, partially or wholly, imbedded in the soil or otherwise of the bottom or banks of said streams and waters, which said logs, timbers, and forest products retard the natural flow of the water in the channel of said streams and impede and endanger all kinds of navigation in and upon said waters; that the logs and timber, snags, deadheads, stumps, and other obstructions so in said waters on the bottoms thereof and on the banks thereof greatly endanger, retard, and prevent the proper, lawful, and ordinary use of said waters for the purposes mentioned in the last paragraph, and it is almost impossible for any kind of water craft, from a rowboat to a steamboat, to navigate said waters without injury to the boat, as well as danger to the occupants thereof; that the board of supervisors have by public notice required owners and claimants of logs and deadheads to remove the same from the streams; that on the 9th of September, 1905, the board, acting through a committee, made a contract with complainants which provided that complainants should within three years remove all snags, deadheads, and obstructions in these waters, and retain as pay for such work whatever they should “be able to collect or obtain as salvage from said logs or obstructions so removed.” The bill avers that defendant was, on the 13th of September, 1905, engaged in removing from the Cheboygan river deadheads, logs, and timber. The bill prays an injunction prohibiting defendant from removing any logs from the stream.

It is seen that the theory of the bill is that by the contract with the committee of the board of supervisors the complainant acquired a present title or interest in all the timber and deadheads in the stream at the date of the contract. It is very doubtful whether the parties to this agreement intended that any present title or right was conveyed. It is a reasonable construction that the complainants were expected to accept as compensation such “salvage ” as they might obtain from the logs removed at the time when under the contract they should — at any time within three years — remove them. There was no grant of the timber in terms to complainants. If it be assumed that there was an attempt to vest a present interest in complainants, the question arises whether the board had the authority to make such a contract.

Numerous reasons are urged against this claimed power:

(1) That this is an attempted work of interrial improvement ; (2) that the attempt to confer title to these logs on complainants is an attempt to confiscate the property without due process of law; and (3) that the statute relied upon for authority is not broad enough to confer power upon the board to make the contract in question.

It implies no want of appreciation of the force of the two first contentions that we rest our decision upon the third. The statute relied upon is 1 Comp. Laws, § 2494, which reads:

“Every such board of supervisors shall have power, within their respective counties, to permit or prohibit the construction of any dam or bridge over or across any nav-, igable stream. They shall also have power to provide for the removal of any obstruction arising from the erection of booms, or collecting of logs or rafts in such streams by any individual, and to direct the time in which, and places where, persons having logs, rafts and boats in such streams shall be allowed to remain, and when the same shall be removed; and may impose such penalties as they deem necessary to enforce such regulations, and authorize the sheriffs, or their deputies, to carry into effect the regular tions made under the provisions of this act.”

The complainants’ counsel attempts to eliminate from the statute what does not apply to this case, and produces the following:

“Every such board of supervisors shall have power, within their respective counties * * * to provide for the removal of any obstruction arising from the * * * collecting of logs * * * in such streams, by any individual.”

We think this abstract omits controlling words of the statute. The section read as a whole contemplates regulation of the uses of streams for navigation, and the enforcement of such regulations by penalties, and further empowers the board to authorize the sheriff or his deputies to carry the regulations into effect. The statute authority is directed to the removal of obstructions arising from the erection of booms, or collecting of logs, or rafts, in such stream by any individual. It is manifest that obstructions by booming logs, or collecting logs in rafts, are the obstructions meant. It was not contemplated that the board should engage in removing obstacles to free navigation which had existed for half a century. On the contrary, the regulation of the use of the stream by removing obstructions concurrently created was contemplated. The circuit judge was right in sustaining the demurrer.

Decree is affirmed, with costs.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.


text:
    GODKIN v. RUTTERBUSH.
    Drains — Taxation—Recovery of Tax Paid — Action—Parties.
    An action brought to recover of a township treasurer money paid under protest as a drain tax, which does not make the county drain commissioner a party, is within the terms of section 4370, 2 Comp. Laws, as amended by Act No. 141, Pub. Acts 1899, which provides that, in any suit to set aside any drain tax, the county drain commissioner shall be made a party.
    Error to Bay; Shepard, J.
    Submitted October 12, 1906.
    (Docket No. 78.)
    Decided February 5, 1907.

      Assumpsit by John Godkin against Herman Rutterbush, treasurer of Portsmouth township, for taxes paid under protest. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Lee E. Joslyn, for appellant.

      Brakie J. Orr, for appellee.
   Montgomery, J.

This action was brought to recover of the defendant, the township treasurer of the township of Portsmouth, Bay county, #191.25, paid to the defendant under protest, this amount having been assessed as a drain tax against two descriptions of property belonging to the plaintiff. The payment was made to avoid a levy upon personal property. The drain tax in question was assessed to pay the expense of cleaning out a drain.

The claim was made in the protest and on the trial that the notice of letting the contract for cleaning out the drain did not comply with the statute (2 Comp. Laws, § 4340), in that the publication was on the 2d, 9th, and 16th of May, for a letting on the 18th of May, whereas the statute requires a notice of not less than 10 days by causing a notice to be published not less than two insertions. It is claimed that at least two insertions in a newspaper are required, the last of which must be at least 10 days prior to thé date of letting.

The defendant contends for a different construction of this section, and also contends that the plaintiff is not damaged by the irregularity in any event, and further contends that this action must fail because of the omission to make the drain commissioner a party. Defendant recovered by the direction of the court. If defendant is right in his last contention, the other questions need not be discussed.

Section 4370, 2 Comp. Laws, as amended by Act No. 141, Pub. Acts 1899, provides that, in any suit brought to set aside any drain tax or in any way attacking the legality of any drain proceedings, the county drain commissioner shall be made a party to said suit, and it shall be the duty of the prosecuting attorney of the county where said drain is situated to defend said drain proceedings. This act was considered in Murphy v. Dobben, 137 Mich. 565, but its effect upon a case like the present was not considered for the reason that the drain commissioner had been made a party and the suit had, with the assent of all parties, been dismissed as against him. In the present case there has been no waiver, and it becomes our duty to determine whether this proceeding is within the statute. The obvious reason for the enactment of this provision was that the drain commissioner in a peculiar sense stands as the representative of those who are interested in the drain and in the collection of the tax. The purpose of the statute was to afford to the drain commissioner the opportunity to be heard in the proceeding. We think the present action is plainly within the terms of the statute as well as within its reason and purpose. It follows that the judgment should be affirmed. It is so ordered.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.