author: Hookee, J.

text:
    OTTO v. BRAMAN.
    1. Trial — Instructions—Issues—Requests.
    Where, in an action on a note given for the price of a horse, defendant’s notice suggests the defenses of guaranty and .deceit, a proper request preferred by plaintiff on the question of deceit should be given, though there is nothing in the testimony to support that defense and it is not mentioned in the charge.
    2. Sales — Warranty—Breach—Pleading.
    In an action on a note, a notice of special defense under Circuit Court Rule 7 o, stating that the stallion for which the note was given was purchased upon the assurance that he was serviceably sound, whereas in fact, he was not, but was af- . ñicted with a disease named, which made him sterile and ultimately caused his death, is broad enough to permit recoupment of any damages resulting from breach of the guaranty of his being serviceably sound.
    3. Same — Variance.
    Failure, in pleading a breach of warranty under Circuit Court Rule 7 c, to mention the written guaranty is unimportant; and.failure to set forth the duty of returning the warranted article for exchange for a sound one as stipulated in the guaranty, and plaintiff’s waiver of the provision, is not a fatal variance.

      4. Same — Return op Property Sold — Extension op Time por Trial.
    Where a horse is sold on a guaranty that he is serviceably sound, and if not the seller will exchange him for one. that is, and he dies before the lapse of an extended period of trial, from a disease that made him unsound, his death does not absolve the seller from his duty to recompense the buyer, though it prevents return of the horse.
    5. Same — Waiver op Provision por Exchange.
    Where a horse dies while being tested under a guaranty providing for exchange for another in case he proves unsound, and the seller, with knowledge of the facts, brings suit on the note given for his purchase without requesting the buyer to.take another horse, and denies his liability on the guaranty, his action is equivalent to a refusal to supply another horse, and he cannot object to the buyer’s recouping his damages on the theory that he was entitled to furnish another horse.
    6. Same — Written Guaranty — Parol Evidence.
    A written guaranty cannot be added to by parol.
    7. Same — Action por Price — Warranty—Instructions.
    Where a guaranty, given on sale of a horse, was that he was serviceably sound, and not that he was not diseased, it is error to instruct that the question of liability on the note given for his purchase depends on whether he was diseased or failed to be an average foal getter.
    8. Same — Breach op Warranty — Damages — Question por Jury.
    Where a stallion was sold on a warranty that he was service-ably sound, and the buyer had him one year before he died from a disease that made him serviceably unsound, it cannot be said that the buyer received no consideration for his note given for the purchase price, and the amount of damages he should recoup in an action on the note is a question of fact for the jury to determine.
    Error to Montcalm; Davis, J.
    Submitted November 7, 1905.
    (Docket No. 94.)
    Decided December 4, 1905.
    Assumpsit by William B. Otto and Albert B. Holbert, copartners as W. B. Otto & Company, against John W. Braman upon a promissory note. There was judgment for defendant, and plaintiffs bring error.
    Reversed.

      George Huggett and Frank A. Miller, for appellants.

      N. O. Griswold, for appellee.
   Hookee, J.

The plaintiffs are importers of and dealers in horses. This action is brought upon a promissory note, given to them by the defendant, a purchaser of a stallion for breeding purposes. With his plea of the general issue the defendant gave notice that the purchase was made and the note given upon plaintiffs’ assurance that the horse was serviceably sound as a serving stallion, whereas-he was not sound, but was at that time afflicted with a disease known as chronic orchitis, by which he was rendered barren and of no value, and which disease caused the death of the horse before the note matured; that the existence of said disease was known to the plaintiffs at the time of the sale, yet they especially represented and guaranteed that said horse was not afflicted with any disease whatever, and was sound and serviceable as a stock horse; that the defendant did not know these representations to be untrue; and that, in consequence thereof, he received no consideration for the note, and suffered great damage and injury, and expended large sums in caring for the horse, and endeavoring to use him as contemplated, and in caring for and doctoring him in his endeavor to cure him from said disease.

It appeared upon the trial that the contract of purchase included a written contract of guaranty, which was signed by the parties and was as follows:

“ Guaranty Contract
“Of the W. B. Otto Horse Importing and Breeding Co., Dealers in Stallions and Mares of the Different Draft, and Coach Breeds. Percherbns a Specialty.
“Charlotte, Eaton County, Mich.,
“April 22, 1902.
“In selling Stallion horse, David (44,959) to J. W. Braman, who has this day paid $3,000, that W. B. Otto Horse Breeding Co. agree to bind themselves to fulfill only the following guaranty on said horse, David, No. 44,959.
“ 1st. Because we believe there are few truly sound stallions, the W. B. Otto Horse Breeding Co. give notice that we guarantee no stallion strictly sound, but guarantee all serviceably sound as serving stallions.
“ 2d. If said horse should not prove himself to be an average foal getter after a fair trial on breeding mares the purchaser shall return him to Charlotte, Eaton county, Michigan, and receive another horse of equal value that is supposed to be sure.
‘ ‘ 3d. The W. B. Otto Horse Breeding Co. agree that if for any reason of their own, the purchasers of said horse may wish to exchange him for another horse of equal value, they may have the privilege, but in no case can they exchange for a horse of less value.
“4th. In case of exchange under any of the clauses and under contract hereto, horse must be returned as sound, as fat and in as good condition as when sold, or exchange shall not be available.
“ Note. — Each party to this purchase by accepting this slip, accepts the above as complete and full terms of their purchase, and you are to take notice.that salesmen are forbidden to in any way change the printed form of this guaranty; and, if changed, will not be accepted as changed by the firm.
“W. B. Otto & Co.
“ J. W. Beaman.”

To maintain his defense, the defendant sought to show, that the horse failed to get colts, and that he was afflicted with a swollen testicle when purchased, and that it grew worse until he died; that at the time of the purchase defendant called .plaintiffs’ attention to the swollen testicle, but was told by them, that it was nothing but what they would guarantee to be all right. The horse was bought in April, 1902, and defendant testified: That about June 7, 1902, he went to see the plaintiffs, and told them that he did not think that the horse was doing any good, spoke of his swollen testicle, said that he did not care to keep him longer, and would like to get rid of him entirely, or get something that would be of some benefit to him. Plaintiffs showed him a large number of horses, but he did not want any of them that plaintiffs would let him have. Again in the winter, he went to see them, to exchange for something that would do him some good. He was then shown a horse called “ Prince Henry,” which he was offered for $1,000 less money; but he had a large leg, and he did not want him. Told Otto may be he would take some mares. Looked them over, and was suited with one of a pair, but Otto would not sell one alone. Looked at stallions. Didn’t see any he would care for. Had some colts, but thought them too grey. Had one Percheron colt, but he didn’t want a grey horse. Otto offered him two mares in exchange for the horse, and told him he could have them any time within a week. He finally wrote Otto, but when the letter reached him, the mares had been sold. During, the conversation Otto said: “As long as I have nothing to suit you, you better try the horse another season; that he might be all right, such was often the case.” Defendant stated that if he couldn’t do any better, he would try him another season. He said nothing about the testicle at this interview. He started the horse on the road in April, 1903, and had no further communication with plaintiffs until after the horse died. He then went to see Otto, “to see what was the best he could do in a case of that kind.” The horse was never taken to Charlotte for exchange as provided in the guaranty.

The court instructed the jury that defendant must show by a preponderance of proof, that the horse was not serviceably sound, at the time defendant purchased him, to' establish a defense to the note; also, that if the horse was serviceably unsound, it was defendant’s duty to return him to Otto within a reasonable time, and that if he did not, the plaintiffs should recover, unless they had waived that requirement. On the other hand, if the weight of evidence was in defendant’s favor that the horse died from a disease of the testicles, existing at the time the defendant purchased him, or if he failed to be an average foal getter, without any fault of the defendant, and the plaintiffs waived a return, then he could avoid payment, and the verdict should be for the defendant. The court also instructed the jury that—

“ Something has been said by counsel in regard. to the knowledge of the plaintiff, the Otto Breeding Company, or the knowledge of Mr. Otto as to the condition of the horse at the time it was sold. So far as the purposes of this suit are concerned, simply avoiding payment, that is not for you to consider. There was a guaranty made that said horse was serviceably sound. It is his duty to perform that contract, it is the duty of the Otto Breeding Company to furnish a horse that was serviceably sound, and whether he knew he was unsound or not makes no difference, so far as the right of the defendant to avoid payment in this case. But there was a duty incumbent upon the defendant within a reasonable time after discovering anything that would lead him to believe that the horse was not serviceably sound, to return the horse to Charlotte, unless there was that said by the plaintiff to lead him to believe that he waived that feature of it permitting him to keep it for another season for the determination of that question. Then, of course, if that was true, it is not necessary that he should deliver the horse to Charlotte, he had taken further time to consider that question; that the horse died from a disease that actually existed at the time —if while he was so trying him for that determination of that question the horse died from a disease existing at the time of the purchase without fault of the defendant, then, of course, his rights accrued to avoid payment.
“ As the plaintiff guaranteed the horse to be serviceably sound, what was said, at the time of the purchase between these parties as to the enlargement of the testicle may be considered by you as bearing upon the actual condition of the horse. That is, was there outward evidences, manifestations, that the horse had any abnormal condition, or anything that would indicate a disease at that time, whether the disease claimed really manifested itself by any outward sign, that you may consider as bearing upon that proposition. Second, whether sufficient manifestations appear to put defendant upon his notice, so as to lead him to observe more closely than otherwise any progress of the disease might make, as it would be his duty under those conditions, as if he was apprised of anything of that character to give it more close attention, upon discovery of any disease that might lead the horse to be serviceably unsound, it was then his duty, within a reasonable time, to notify Mr. Otto, and return the horse to Charlotte.”

A verdict of no cause of action was returned, and plaintiffs have brought error, upon.the judgment rendered thereon. Two defenses are suggested by the defendant’s notice: (1) A guaranty. (2) Deceit in the sale of the horse.

We find nothing in the testimony that justifies an inference of deceit, and the judge seems not to have.left that •question to the jury. It was not mentioned in the charge. A request to charge was offered by the plaintiffs’ counsel, which after reciting the allegation of deceit mentioned in the notice, contained the following:

‘ ‘ On this point, I instruct you that before any such defense can be of any avail to the defendant in this cause, you must find from a preponderance of the evidence, that at the time of the sale of the horse to defendant, such horse was afflicted with the chronic disease as alleged; that said plaintiffs had actual knowledge of the fact at the •time; and that by false and fraudulent misrepresentation ‘ or concealment on the part of the plaintiffs concerning the •same, the defendant was induced to purchase said horse, and give the note in question.”

This was a proper request and should have been given. Perhaps no injury resulted as the question of deceit appears not to have been mentioned. It is not certain, however, that the jury did not consider it.

It is insisted that the other defense, as actually made in the Evidence, had no foundation in the notice as required by Circuit Court Buie 7, subd. c. The notice states that the horse was purchased upon the assurance that he was serviceably sound, whereas, in fact, he was not, but was afflicted with a disease named, which made him sterile, and ultimately caused his death. The claim that this condition of the horse made the contract devoid of consideration may not be a sound conclusion, but the notice is broad enough to permit recoupment of any damages resulting from the breach of guaranty. Counsel say that this written guaranty was ’ not mentioned in the notice, •but that is unimportant. The substance of the guaranty is given, not with complete accuracy perhaps in all details5 but broadly, and the notice cannot have failed to apprise the plaintiff that defendant claimed that there was a breach of such.guaranty. We are of the opinion that the failure to set forth the duty of returning the horse for trade, and a subsequent waiver of the provision, should not be held to constitute such a variance as to be fatal, and therefore it was not error for the court to refuse to instruct the jury to find for the plaintiff upon this ground.

There was no error in permitting the jury to find a waiver of the provision requiring a return of the horse. Had there been no negotiations of the character shown, it would have been the duty of the defendant to return the horse according to the provisions of the contract, within a reasonable time, provided this could be done; but it cannot be true that his failure to do so would be fatal to his right to redress, if the death of the horse before such period had elapsed, prevented. In such case, though he could not tender back the horse, the vendor would not be absolved from his duty to recompense him. The same can be said in this case, inasmuch as the jury must have found an extension of the time for testing the ability of the horse; a question which it was proper to submit to the jury.

It is contended that the plaintiffs had, to say the least, a right to give another horse to the defendant, and asserted that he did not request it. Were the horse living, it would be the defendant’s duty to tender back the horse, and make an effort to agree upon a substitute; but if the horse died while he was yet being tested under arrangement *by the parties, and the defendant was thereby prevented from returning him, we are not convinced that his failure would preclude recoupment. The defendant has not brought this action. With knowledge of the horse’s death, and without a request to defendant to take another, plaintiffs have brought an action upon the note, denying liability upon their guaranty. This was equivalent to a refusal. But the guaranty in this case was in writing, and it cannot be added to by parol. See McCray Refrigerator, etc., Co. v. Woods, 99 Mich. 269; John Hutchinson Manfg. Co. v. Pinch, 107 Mich. 12; Johnson v. Bratton, 112 Mich. 323; Mason & Hamlin Co. v. Gage, 119 Mich. 361; Mouat v. Montague, 122 Mich. 334; Hallett v. Gordon, 122 Mich. 567, Dowagiac Manfg. Co. v. Corbit, 127 Mich. 476.

There was no guaranty that this horse was not diseased, but only that he was serviceably sound. It is true that a disease which can be said to have rendered him service-ably unsound and not an average foal getter, would constitute a breach of the guaranty; but the jury should have been so- instructed. Therefore the court erred in broadly instructing the jury that:

“If the horse was diseased in the testicles at the time Braman purchased him, or if he was not an average foal getter it was his duty to return him after a reasonable time; that is after a reasonable time to determine that question. And if Otto did not ask him to keep him for a further time to further determine that, then he cannot avoid payment, and your verdict must be for the plaintiff for $565.40.
“You are to determine, gentlemen, whether the horse was diseased or not at the time it was purchased of the Otto Breeding Company, or whether he failed to be an average foal getter without fault of the defendant; that is, was the swelling without regard to the disease, or was the swelling because of the disease that actually existed at the time he purchased him — that he did not get into the condition because of disease arising while in Braman’s hands ? Second, if defendant is free of blame for such defective condition, whether Otto waived the return of the horse to Charlotte.”

This instruction was erroneous for another reason. The evidence shows that the defendant had the horse for more than a year. It cannot be said that he received no consideration for his note, for the horse had some value. Again, it was a question for the jury to determine what, if any, damages defendant had sustained growing out of the breach of the guaranty. They might have been less or more than the amount of the note, but it was not for the court, but the jury, to determine them.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and McAlvay, Montgomery and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    LINGLE v. TOWNSHIP OF ELMWOOD.
    1. Taxation — Voluntary Payment.
    A tax paid before levy or threat of levy or duress of any kind is paid voluntarily.
    2. Same — Payment Under Protest — Party Entitled to Make Payment.
    Under section 3876, 1 Oomp. Laws, one who owns all the bonds of a corporation and owns and controls most of its stock, and has control and management of its property and affairs, the corporation itself having no money or credit, so as to enable it to pay taxes assessed against it, is entitled to pay such taxes under protest and to recover back the amount paid if the tax is illegal.
    3. Same — Recovery—Action—Time or Suit.
    Under section 3876, 1 Comp. Laws, an action to. recover back illegal taxes paid under protest must be brought within 30 days after payment.
    4. Same — Time or Payment — Evidence.
    Under section 3876, 1 Comp. Laws, authorizing payment of illegal taxes under protest, and requiring suit to recover back the money paid to be brought within thirty days after payment, neither the tax receipt nor any entry made by .the treasurer is conclusive on the taxpayer as to the date of payment, and he may prove the time of payment and protest independently, without first showing that no record has been kept by the treasurer or that such record cannot be produced.
    5. Same — Illegality or Tax — Fraud.
    Protests filed on the payment - of a tax, charging willful overvaluation, favoritism, and omission of property from the roll by the supervisor, and refusal by the board of review to relieve the taxpayer, sufficiently indicate fraud to raise an issue as to the legality of the tax. Sections 3899, 3939, 1 Comp. Laws.
    Error to Leelanau; Mayne, J.
    Submitted November 8, 1905.
    (Docket No. 99.)
    Decided December 4, 1905.
    Assumpsit by Samuel B. Lingle against the township of Elmwood for taxes paid under protest. There was judgment for defendant on a verdict directed by the court, •and plaintiff brings error.
    Reversed.

      Dwight D. Boot, for appellant.

      Patchin & Orotser (A. F. Bunting, of counsel), for appellee.
   Hooker, J.

The Traverse Beach Association, owns resort property upon Traverse Bay. It was the claim of the plaintiff that he was owner of all of the bonds of said company, and that he owned and controlled most of its stock, and had control and management of the property belonging to the association and its affairs. He caused this action to be brought against the township in which said property is situate to recover an amount paid by him under protest, claimed by the defendant to be due for taxes assessed upon said property. To maintain his case he offered testimony tending- to show that he paid the taxes through his attorney, and that they were paid under •a written protest, delivered to the treasurer at the time, which writing states, as grounds for the protest.

1. That the property was fraudulently and corruptly -assessed at more than its actual value, and more than its relative value to other property assessed upon the same .roll. ' .

2. Because the supervisor willfully and intentionally •omitted from the roll large quantities of personal property which it was his duty to assess.

3. Because the board of review willfully, fraudulently, and dishonestly neglected, and refused, to cause said omitted property to be added to the roll.

4. Because said board fraudulently, willfully, and intentionally refused to raise the assessment of other real estate, or reduce that of the Traverse Beach Association, although requested to do so.

5. That the board of review of said township did not hold a legal meeting on the last day fixed by law for reviewing the assessment roll.

6. Because said board illegally held a meeting after the time fixed by law, and assumed to change and fix the amounts of the assessed valuation of property contained in the roll.

Other grounds were stated, but they only repeat the foregoing.

Upon the trial plaintiff testified that after the assessment was made he appeared before the board of review and objected to the assessment, and he offered in evidence a protest which he filed with said board at that time. In that protest he complained of overassessment, giving reasons therefor, also that the property was assessed higher relatively than other property, citing instances of low assessment of property, including that of relatives of the supervisor, and that much personal property was omitted from the roll, and asking either a reduction of this property, or the raising of other parcels, and that omitted personal property be added, and offered proof, if the board would fix a time for the hearing of the matter. Plaintiff also testified that he paid these taxes under protest; that the Traverse Beach Association had no money nor credit, and could not procure money to pay the taxes assessed; that he owned all the bonds but one, and ‘£ practically controlled the whole thing by controlling almost all of the stock,” and paid the tax himself; that he was “practically the association.” The testimony tended to show, further, that the protest was filed with the board of review on the last day provided by law for the purpose, by counsel employed by the plaintiff, and that the tax was paid by counsel with money furnished by the plaintiff, and such payment was accompanied by the aforesaid written protest served upon the treasurer. Witness Pratt testified that the tax was paid by check, but that he did not know the date, but, as he understood it, this suit was commenced within 30 days afterwards.

The following dialogue ensued :

Q. Can you state how long before the commencement of this suit that check was given ?
“A. I can as I then understood it.
Q. How long was it ?
'“Mr. Patchin: I object to that. The record evidence is the best evidence. Further, in order to fix the time of the payment, the check itself would be the best evidence.
“The Court: The statement contains the element of indefiniteness, ‘As I then understood it,’ that taken in connection with the other objections, the objection will be sustained unless it is shown that there is no record of it, that the check is lost or some other fact. '
Mr. Pratt: Note an exception.
Q. Had you any knowledge of the fact of payment at the time payment was made ?
“A. I did have.
“ Q. Did you also have knowledge of the fact as to when the suit was commenced ?
“A. I did.
Q. How long before the commencement of suit was the tax here in question paid ?
Mr. Patchin: I object. The records are the best evi-' dence of that.
The Court: Till the proper-showing is made, the objection is sustained.
“Mr. Pratt: Note an exception. I wish to state here that I will have the check itself here this evening. Mr. Davis has been notified and he will be here with it.
The Court: The tax receipts are here ?
“Mr Pratt: Yes, sir; but they are not correct as to date, I know as a matter of fact that they were dated a long time before payment.
“Mr. Patchin: I object to that.
The Court: The protest would not be incorrectly dated ?
“Mr. Pratt: It was dated — not filed — but dated, but we did not make nor file the protest, nor Mr. Foote deliver the receipts until nearly a month after they bear date.
Mr. Patchin: I move that that statement be stricken ■ out.
The Court: Was that a matter of testimony on your part?
Mr. Pratt: Yes, sir.
The Court: Well, till the records are shown or inability to show them, it will be stricken from the record. Note an exception.
Mr.Pratt: What do you mean by a ‘ record ? ’
The Court: The township treasurer should have made a record of the date.
“Mr. Pratt: Does the court hold that he could have made a record that would bind us different from the fact ?
The Court: The court has made a ruling that, when the other evidence is presented, I will pass upon them. If after that is presented you desire to be heard in relation to it, that will be all right; that will be another thing.
“Mr. Pratt: I simply say this: That as to the question of when the time of payment was made I want the opportunity to get Mr. Davis here and offer to prove the facts, and in the meantime I am ready to proceed with the proof on the other questions. The record in the township treasurer’s hands contains the mark ‘ paid under protest January 8, 1902,’ and I offer to prove now that that record is incorrect and that the payment was made in fact on the 1st day of February, 1902, paid by our check and accepted by Mr. Foote on or after that date.
The Court: That is your offer. Proceed. Have you the receipts here ?
“Mr. Pratt: Yes, sir; and they are dated January 8, 1902. I say, however, that neither by giving a receiptnor by making a record on his tax roll different from the fact could he bind us.
The Court: Proceed with plaintiff’s testimony.
“Witness Pratt continued: My partner went to the treasurer’s office on January 8, 1902, to pay the taxes, but returned without paying them and presume that accounts for the dates on receipts.”

It was shown, also, that plaintiff owned a large amount of stock in the Traverse Beach Association, and was in the habit of acting as its president. Before the close of plaintiff’s testimony, on motion of defendant’s counsel, the court directed a verdict for the defendant, which was duly entered, together with judgment thereon and the plaintiff has appealed.

Was the payment of the tax a voluntary one ? There seems nothing to indicate the contrary. It was paid before levy or threat of levy, or duress of any kind, and therefore cannot be said to be involuntary. The statute (1 Comp. Laws, § 3876) permits any person to pay a tax without waiting for a levy, and allows him to accompany said payment by a written protest at the time of payment, and to recover back the amount paid, upon the ground of illegality that may be stated in the protest. In saying that this was a voluntary payment, we understand defendant to mean that the protest failed to state a sufficient ground, or, if stated, that plaintiff failed to prove such, and that therefore it must be treated as a voluntary payment. If the protest contains' a sufficient allegation, and the evidence supports it, the question of plaintiff’s right to recover for a fraudulent amount should have gone to the jury (if the court might not have directed a verdict upon it as conclusively shown), unless there is some other reason which should preclude a recovery by plaintiff. Two such are stated: (a) That the plaintiff had not a right to recover in his own name. (b) The suit was not seasonably brought. As to the first of these, the statute seems a sufficient answer. If the plaintiff’s testimony is true, he paid this tax for his own protection, very much as a mortgagee might do. The statute permits this, and contains nothing to indicate that such a payment by an interested party may not be made under protest, and recovered back.

The second ground, if the claim be true, is an answer to plaintiff’s suit, for the statute clearly requires the action to be brought within 30 days after payment. It does not appear from the record that the action was brought within the statutory period. This would have justified the direction of a verdict for defendant, but for plaintiff’s offer to show that the tax was paid, and the protest given to the treasurer at a different time from the date of the tax receipts. The judge was of the opinion that records required to be kept by the treasurer would be conclusive of the question of date, and that until it should be shown that there was no record, or that it could not be produced, secondary evidence could not be received. See 1 Comp. Laws, § 3876. We cannot assent to this view. It was competent and necessary for plaintiff to prove the time of payment and protest, and he could not be concluded by the date of the tax receipt, or any entry that the treasurer might make. It follows that this cause must be reversed, unless the plaintiff has utterly failed to prove his grounds of protest to have been well taken.

It is urged that the protests contain no sufficient ground for holding the tax illegal.. Section 70 of the tax law (1 Comp. Laws, § 3899) provides that—

“In any suit or proceeding to enforce or set aside a tax, such tax shall be held illegal only for one of the following reasons: * * *
“Fifth, That the supervisor or board of review in assessing a person or property for taxation, or in the apportionment of the tax to the person or property in question acted fraudulently.
“If any such illegality, omission, or fraud affects the amount of one tax only, the tax shall be sustained so far as the same is legal and just. ”

Section 116 (1 Comp. Laws, § 3939) makes it a misdemeanor for any assessing or other officer to willfully assess any property at more or less than what he believes to be its true cash value. It has been held that taxes may be set aside as illegal, where property has been fraudulently overassessed, whether it be by overvaluation of such property or by willful overassessment. See Auditor General v. Iron Co., 123 Mich. 521; Auditor General v. Hughitt, 132 Mich. 311; Auditor General v. Improvement Co., 129 Mich. 182 (56 L. R. A. 105).

In the present case counsel say that neither the protests nor the proofs indicate fraud. We think otherwise. The protests charge willful overvaluation, favoritism, and omission of property from the roll by the supervisor, and refusal by the board of review to relieve the plaintiff against them. There is an offer of proof from which such fraudulent conduct might be inferred, and the question might therefore have been one which should have been submitted to the jury, had plaintiff been allowed to put in his testimony. The following excerpt from the record shows that the case was disposed of on motion of defendant’s counsel upon what was called a jurisdictional ground, cutting off plaintiff’s opportunity to introduce further testimony:

Q. State whether or not you are acquainted with the values of real estate in Elmwood township, and what part of it ?
The Court: It is desirable that I should pass upon the jurisdictional points raised by defendant before we take up the question of value.
“Mr. Patchin: I move the court to now direct a verdict for defendant, for the reasons that the evidence shows that plaintiff paid the taxes in- question voluntarily, and that he did not pay them involuntarily. Also, that plaintiff has no legal right to recover back the tax in his individual name, and also because plaintiff did not begin the suit within 30 days after the paying of the tax.
“ And thereupon the court instructed the jury to return a verdict in favor of defendant of ‘No cause of action,’ and it was done. To which instruction the plaintiff duly excepted. And thereupon judgment was rendered against the plaintiff and in favor of the defendant upon said verdict for costs of suit. To which judgment plaintiff duly excepted.”

The judgment is reversed, and a new trial ordered.

Moore, C. J., and McAlvay, Montgomery, and Ostrander, JJ., concurred.


text:
    BANKMAN v. PERE MARQUETTE RAILROAD CO.
    Railroads — Injury to Shipper’s Horse — Contributory Negligence.
    In an action against a railroad company for injury to plaintiffs’ horse by being struck by a train while standing in a space between the track and freighthouse by direction of defendant’s agent, evidence examined, and held, that the question of plaintiffs’ contributory negligence was one for the jury.
    Error to Van Burén; Carr, J.
    Submitted November 9, 1905.
    (Docket No. 111.)
    Decided December 4, 1905.
    Case by Gustave Bankman and Edward Bankman against the Pere Marquette Railroad Company for the negligent killing of plaintiffs’ horse. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      F. W. Stevens (John C. Bills, of counsel), for appellant..

      Barnard & Lewis, for appellees.
   Hooker, J.

Plaintiff Gustave' Bankman, one of two> owners of a horse, sleigh, and harness, drew a load of freight to the defendant’s depot at Grand Junction. Defendant’s railroad passes the west side of the building, and at the point where freight is transferred there is a-space barely wide enough to afford standing room for a. team. The regular place for unloading freight is at the north end of the depot platform, and under ordinary circumstances no teams are allowed in this space. On the day of the accident the snow was so piled up as to prevent unloading upon the platform, and he was directed by defendant’s baggageman to drive into the narrow space-mentioned and unload at the freighthouse door. He did so, and, leaving his team standing unattended, went into the office and secured his freight receipts. Then he went for his express receipts, and was informed by the baggage-man that he would have to wait until he attended to a Michigan Central train which was approaching on its track on the other side of the depot. After this train left the station plaintiff again left his team and went into'the warehouse to wait for the receipts, which the baggageman was writing while he held the lantern for him. Hearing a train approaching upon defendant’s road, plaintiff sprang to his horses’ heads, but the train was very close, and he was unable to lead them out or keep them away from the train, which struck one horse and the sleigh, inflicting injuries for which this action was brought. This is the plaintiffs’ version of the accident, according to defendant’s brief.

The defendant contradicted these statements in important particulars, e. g., denying that plaintiffs’ driver was directed to drive there, and that he did so of his own accord; that after unloading, and before the Michigan Central train arrived, he told Mr. Bankman that he would have to take his team “over town ” and hitch, and as soon as he should get through with the Michigan Central train he would give him his receipts; while he was writing them he heard the train coming, and Mr. Light-hall, the interlocker man, seized a lantern and ran out to stop it, but was too late, and the train went right on through; that the place was obviously dangerous, and the team stood there at least 15 minutes after the load was taken off; that a person standing by the horses could have seen half a mile down the track. A verdict for $100 was rendered, and defendant has appealed.

The only question raised is whether the court erred in refusing to direct a verdict for defendant on the ground of plaintiffs’ contributory negligence. Counsel contend that the courts commonly hold that it is negligent for one to leave his horses unattended in a place where they are likely to be struck by a passing train. It is not improbable that we might so hold in this case but for the proof that he was directed to do so by the agent, who would be presumed to know when trains would be due and not advise driving into a place such as was occupied in the face of danger. It does not follow that the plaintiff was not chargeable with contributory negligence; but it was not error to leave the question to the jury.

The judgment is affirmed.

Moore, C. J., and McAlvay, Montgomery, and Ostrander, J J., concurred.


author: Per Curiam.

text:
    PRESTHUS v. GOGEBIC CIRCUIT JUDGE.
    Mandamus — Compelling Entry op Judgment — Propriety.
    An application for a mandamus to compel a circuit judge to enter judgment on a motion therefor is premature where respondent’s return shows that the hearing on the motion is pending, and that respondent has been at all times ready either to enter judgment or refuse to do so on disposal of the motion.
    Mandamus by John Presthus to compel Norman W. Haire, circuit judge of Gogebic county, to grant a motion to enter a judgment by default.
    Submitted November 7, 1905.
    (Calendar No. 21,342.)
    Writ denied December 4, 1905.

      Frank F. Kutts (Taylor, McBride & Connell, of counsel), for relator.

      Julius J. Patek, for respondent.
   Per Curiam.

Relator commenced a suit in the circuit court for the county of Gogebic by quo warranto to 'test the title of one Charles Lease to the office of school trustee of the township of Bessemer, in said county. The relator, claiming that his proceedings were regular, entered the default of the respondent for failure to appear and plead. The respondent subsequently entered a motion to set aside the default. Relator moved for judgment of ouster on the default. For various reasons, unnecessary to mention, the hearing of the motion was postponed, has never been decided, and was still pending when the petition in this case was filed in this court on July 22d last, asking for the writ of mandamus to compel the circuit judge to enter judgment.

The respondent returns that he has been at all times ready to dispose of the motion, and to either enter judgment or refuse to do so, upon the disposal of the motion. Relator, instead of asking the court to dispose of the motion, applied to this court for the writ of mandamus. The return of the circuit judge was filed October 9th. We are of the opinion that' the relator was premature in filing his petition in this court. It is his own fault that the court did not dispose of the pending motion.

The writ will therefore'be denied.


author: Grant, J.

text:
    BEWICK v. HANIKA.
    1. Vendor and Purchaser — Contract — Oral Negotiations — Reducing to Writing.
    An oral contract for the sale of lands being void under the statute of frauds, the vendor has a legal right to insert any stipulations he chooses when reducing such an agreement to writing, and if,'after the vendor has signed, the purchaser inserts additional terms before signing, there is no meeting of minds and the vendor is not bound by the contract unless he ratifies it.
    ;2. Same — Building Contract — Ratification.
    A vendor having agreed to sell a lot and furnish money to build thereon, his signing a building contract at the request of the contractor was not such a ratification of the contract of sale as would bind him to stipulations not contained in it at the time he signed it.
    :3. Same — Abandonment—Rescission—Evidence.
    On a bill to set aside a contract by which complainant agreed to sell defendants a lot and advance money to build a house thereon, evidence examined, and held, that complainant was justified in assuming that defendants had abandoned the contract, and he having completed the house in a more expensive manner than contemplated, defendants were only entitled to repayment of the moneys they had advanced.
    Appeal from Wayne; Mandell, J.
    Submitted November 14, 1905.
    (Docket No. 125.)
    Decided December 4, 1905.
    Bill by Charles Bewick against Frank Hanika and Josephine Hanika to set aside a building contract, and to restrain prosecution of a suit at law. From a decree dismissing the bill, complainant appeals.
    Reversed, and •decree entered for complainant.
    Complainant was the owner of several platted lots in the city of Detroit. Defendants, who are husband and wife, desired to purchase a lot on which to erect a dwelling house as their home. Defendants did not have money to complete the house. Negotiations were entered into for the purchase of the lot and for a loan of money by complainant to them for the erection of the dwelling. A parol agreement was finally reached by which the complainant agreed to sell them the lot for $600 and to advance $2,050 for the erection of the house. This parol agreement was reduced to writing, reciting that for $2,650 the complainant agreed to sell to them the land described — $600 to be paid down, and balance within 15 years, with interest semi-annually. It was not agreed that complainant should assume the responsibility and superintendency of the erection of the building. It was agreed that he should pay as payments became due on the contract for its erection. The character, plans, and specifications were substantially . agreed to before the execution of the land contract. Complainant spent much of his time away from the city of Detroit, and the negotiation was chiefly carried on through his agent, one Hillger. Complainant signed a contract, and sent or gave it to Mr. Hillger to obtain its execution by defendants. The defendants took the contract to their attorney. Two additions, typewritten, were attached to the contract by the defendants. These were as follows:
    “It is understood that said party of the first part is to erect a two-story dwelling house on said lot, which is included in the consideration of this contract, to be built according to plans and specifications verbally agreed upon, .and said building to. be looked after.by Messrs. Hillger & Nicol, agents, until completed.
    “It is also agreed that the interest on the money to be expended for the construction of a dwelling, on the above-described premises shall be computed from the date of each expenditure.”
    After these additions had been made the parties signed the contract and gave it to Mr. Hillger, who returned it to complainant. A contract for the erection of the house by one Houston was drawn and signed by the defendants. They desired to have complainant sign it, erased their names, and requested Mr. Hillger to get complainant to sign it. This complainant did. This contract was for $2,016, and was prepared under the direction and to meet the wishes of the defendants. Hillger and Nicol were the agents for the defendants in looking after the execution of this work, for which they were to receive the difference between the $2,016, the amount of the Houston contract, and the $2,050, included in the land contract. Defendants became dissatisfied with Houston’s work. Houston abandoned it, or was discharged by Hillger, acting for defendants, some time in October. Complainant paid Houston as Hillger & Nicol represented the payments to be due. After Houston’s failure liens were filed, and these were subsequently paid by complainant. Nothing further was done with the building, except that complainant protected the structure as well as he could to prevent deterioration, until the following June, when he, assuming that the defendants had abandoned the contract, let another contract to complete the building at a considerable increase in expense and change of plans. Defendants brought suit at law against the complainant for violation of his contract, seeking to recover damages to the amount of $4,966.40. Thereupon complainant filed this bill, alleging that the contract did not embody the original agreement of the parties, and praying that it be set aside and held for naught, or for the establishment of one which did represent their actual agreement. The case was heard upon pleadings and proofs, and the bill dismissed.

      Willard E. Warner, for complainant.

      Thomas Hislop, for defendants.
   Grant, J.

(after stating the facts). We feel compelled to reverse the decree and grant relief. Complainant had signed the contract which was in accordance with the parol agreement, and sent it to defendants for execution by them. Even if - the written agreement had not been in accordance with tbe parol agreement, complainant had the legal right to insert any provision he chose in the written agreement, for the parol agreement was void by the statute of frauds. He was justified in assuming that they would sign the contract as it was. They did not execute the contract which he executed, neither did he execute the contract which they executed. Until he ratified the contract as changed by them, their minds had not met and no contract was made. We think tho record fails to show ratification. His signing the contract with Houston was not, under the circumstances, a ratification. He was under legal obligation to pay the amount of Houston’s contract, and might very properly conclude that his signing that contract did not affect or change his obligation under the land contract. The question is one of fact, and a statement of the evidence would be of no practical value to the profession. Complainant is willing to return to the defendants the amount of money they have paid him, and prays in his bill that he be decreed to do this. It would be inequitable to now compel complainant, who acted in good faith, to carry out his contract, even if -it were reformed in accordance with the parol agreement. Complainant assumed, and we think he had a right to assume, that defendants had abandoned the contract. He thereupon made a new contract to complete the house, and largely increased its cost. It would be inequitable to now permit defendants to get a house better and more expensive than the one they contracted for. The only way to do justice and equity between the parties is to decree the repayment by complainant of the amounts he has received, with interest.

Decree reversed, and decree entered in this court for complainant, with costs of both courts to the complainant.

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


text:
    TUCKER v. VAN WINKLE.

    1. Taxation — Sales of Land — Notice to Redeem — Sufficiency.
    A notice of the sale of land for taxes served on the record owner pursuant to section 140 of the general tax law (§ 3959, 1 Comp. Laws) is ineffectual if it omits the name of the county and State.
    2. Same — Service—Part Owner.
    The service of a proper notice on one who claims an interest in the timber growing upon the land will not entitle a tax purchaser to possession as against the record owner who was served with a deficient notice.
    Appeal from Schoolcraft; Steere, J.
    Submitted November 14, 1905.
    (Docket No. 83.)
    Decided December 4, 1905.
    Petition by Edgar H. Tucker against Lewis Van Winkle, Charles Montague, and William Bonifas for a writ of assistance. From a decree for defendants, petitioner appeals.
    Affirmed.

      V. I. Hixson and David Knox, for petitioner.

      F. D. Mead, for defendants.

       Rehearing denied January 23, 1906.

   Hooker, J.

The petitioner holds the auditor general’s deed to the premises in question. He has filed his petition for a writ of assistance, that he may be put in possession of said lands. Defendants Van Winkle and Charles Montague are the grantees named in the last recorded deed in the regular chain of title to said lands, and' claim to be owners. William Bonifas claims to have an interest in the timber growing upon said land. The petition is opposed, upon the grounds that the notices served did not conform to the requirements of section 140 of the tax law (1 Comp. Laws, § 3959), and that proper proof of service was not made. Most of the questions raised have been decided in the recent case of Williams v. Olson, 141 Mich. 580, and need not be further alluded to.

The notices served upon Van Winkle and Bonifas are deficient in the description of the lands; the county and State being omitted. If the name of the State appeared, the township and range, which are given, would serve to define the land. As it is, the notice fails to show whether the lands are in Michigan, or in any one of the many other States, where similar methods of survey have been followed. While the case cited indicates that the statute is not to be construed and enforced technically, we are of the opinion that it should furnish means of identifying the land. The notice to Montague contains the name of the State, hut that does not give petitioner the right to possession.

The order of the circuit court is affirmed, with costs.

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


author: Ostrander, J.

text:
    PEOPLE v. WHEELER.
    1. Jury — Summoning—Deficient Panel — Statutes.
    On the regular panel of jurors being exhausted, it is proper for the court, with respondent’s consent, to direct the drawing in the regular way of persons to serve as jurors from the lists furnished from designated townships; section 344, 1 Oomp. Laws, providing for summoning talesmen, not being mandatory.

      2. Disorderly House — Evidence—Admissibility.
    On a' prosecution for keeping a house of ill fame between designated dates, testimony of the reputation of the house prior to the earliest date, though of no value when standing alone, is admissible if, when taken in connection with other undisputed evidence, it indicates that the house under the same management had acquired a reputation prior to the earliest date, which continued up to and during the period charged in the information.
    3. Same — Elements of Offense.
    Evidence that a house was a house of ill fame is not alone sufficient to warrant a conviction for keeping a house of ill fame resorted to for the purpose of prostitution; the elements of the offense being that the house was of ill fame, was being resorted to for the purpose of prostitution, and was kept by respondent.

      4. Same — Evidence—Admissibility.
    On a trial for keeping a house of ill fame, there was evidence that respondent kept a house, and that the inmates paid her for board and room rent and divided with her their earnings. A female testified to telephoning to respondent from another town, inquiring whether she needed any more girls, and, on receiving an affirmative answer, the witness became an inmate. There was no evidence that respondent had a husband, except an understanding in the community that a certain man was her husband. There was no evidence that this man had any connection with the business carried on at the house. Held, that the admission of evidence that respondent under an assumed name kept bank and store accounts was not reversible error.

      5. Same — Coercion op Husband — Instructions.
    The court did not err in refusing to charge that the law presumed that what respondent did in keeping the house was done under the coercion of her husband unless the contrary appeared, where he charged that the jury, in order to convict, must be satisfied that she was the keeper of or aided in keeping the house.
    Exceptions before judgment from Hillsdale; Chester, J.
    Submitted November 16, 1905.
    (Docket No. 239.)
    Decided December 4, 1905.
    May Wheeler was convicted of keeping a house of ill fame.
    Affirmed.

      Richard Price and Charles A. Shepard, for appellant.

      Clayton A. Powell? Prosecuting Attorney, for the people.
   Ostrander, J.

Respondent was convicted of keeping a house of ill fame, resorted to for the purpose of prostitution and lewdness. The case comes here on exceptions before sentence. The errors assigned and argued may be grouped as (1) those relating to the selection of the jury; (2) those relating to the admission and exclusion of testimony ; (3) those relating to the charge and to refusals to charge as requested.

1. The panel of jurors having been exhausted with three jurors in the box, and one juror summoned from among the bystanders having been excused for cause, the. following took place:

The Court: Gentlemen, we have exhausted the panel. I am inclined to think we bad better send out a special venire for jurors; and have you any suggestions to make as to how they shall be selected ? •
“Mr. Shepard: Why, I don’t want to waive any rights here, your honor, in the matter. I would be Better prepared to make that statement if I could see Mr. Price. I would suggest, however, that the usual course ought to prevail.
‘ The Court: Well, we have used here the usual course of summoning talesmen from bystanders, or of letting the sheriff select or write down a list of names from the different townships, 40 or 50 or 60 names, and then allow each the prosecutor and the attorney for the defendant to strike off a certain number, and let him bring in the bal.ance. I suppose— The statute provides a way, by drawing upon the names that have been returned. Just as soon do that way.
“Mr. Shepard: Well, whichever way would be directed by the judge.
The Court: I think, then, unless it is done by agreement, we will draw from the names returned. I didn’t know but we might agree upon the townships, though.
“Mr. Shepard: Yes, I am willing to do that, so far as that is concerned. So far as I am concerned, why, it would perhaps suit the wishes of the sheriff better if he could suggest what would be more desirable on his part, which would be most .convenient. I suggest that they be drawn as far away from the city as—
The Court: Well, how about Camden? Would that be all right ?
“Mr. Shepard: Yes.
“ The Court: Amboy, Wright; Pittsford, Ransom, Wheatland, Somerset, Moscow, Scipio, Litchfield — any objections to drawing from those townships ?
“ Mr. Shepard: No, sir.
The Court: That is ten townships.”

An order was entered reading:

“ It appearing to the court that the regular panel of jurors summoned for this term have been exhausted in this case, and that a sufficient number of jurors were not' drawn and summoned for the term, and that it is necessary to have drawn and summoned other jurors for service at this term and in this case.
“ Therefore it is hereby ordered that forthwith there be drawn, in pursuance of the statute made and provided, from the list of petit jurors returned, 30 jurors, and that they be summoned to appear forthwith; and it further appearing to the court that the jurors of the regular panel from the city of Hillsdale and vicinity had formed opinions in this case such as disqualified them from sitting, and by consent of counsel for respondent in open court that the jurors to be drawn should be drawn and summoned from the outlying townships and the townships hereafter named,- therefore it is hereby ordered that said 30 jurors be drawn from the townships of Camden, Amboy, Wright, Pittsford, Ransom, Wheatland, Somerset, Moscow, Scipio, and Litchfield in this county.”

Pursuant to this order jurors were drawn from the list of petit jurors returned, and in the regular way for drawing jurors for the term, by the clerk, sheriff, and two justices of the peace. Prom jurors so drawn the selection of a jury proceeded to the point where, with 12 jurors in the box (3 of the original panel and 9 of the special panel), and after a number of jurors had been excused for cause upon the examination of counsel for-respondent, who had exhausted peremptory challenges, said counsel filed in writing a challenge to the array as follows:

“And now, at this day, to wit, the 28th day of December, 1904, at Hillsdale, in said county, came as well the said people as the said defendant by their respective attorneys, and the jurors of the jury impaneled in this cause also came, and hereupon the said defendant challenges the array of the said panel, because he says that the order of the court upon which the jurors Nelson Humphrey, J. M. Valentine, James Ritchey, Wilber Gardner, Prank Lewis, Frank Denning, Charles B. Case, O. A. Roe, and Myron Comstock were drawn and summoned to appear is without jurisdiction and void, and was made without the consent of defendant; secondly, the defendant challenges the array of the said panel because, after the regular panel of jurors for the present term had been exhausted, 30 jurors, including the jurors whose names are given above, were ordered drawn, and were drawn from the list of petit jurors which had been returned under the law prior to the drawing of the regular panel, and the said jury was completed from the list thus drawn without authority of law, and the jurors whose names are given above were drawn and summoned as jurors in this case without authority of law and in violation of the rights of defendant; third, because defendant never consented to the method pursued in drawing said jurors, nor waived her right to object to the same. And this the defendant is ready to verify, whereupon she prays judgment and the said panel may be quashed.”

The challenge was overruled. Thereupon the nine jurors selected from the special panel were challenged for cause for the reasons set out in the challenge to the array, which challenges were overruled.

It is said that the method and only lawful method of completing the panel is that pointed out in 1 Comp. Laws, § 344, and, as this method was not followed, respondent was not tried by a lawful jury. It is contended on the part of the people that counsel for defendant consented to the method pursued, and also that objections were not seasonably made. The statute referred to is not in its terms mandatory, nor is any authority brought to our attention for the proposition that the course pursued was an improper one. It is clear that consent was in effect given to the selection of jurors from the townships from which they were drawn. There is no pretense that there were not proper lists returned from which to draw, or that in making the drawing which was made the statute method was not pursued. We think the objection without merit, and that the challenge to the array was properly disallowed.

2. There was abundant and convincing evidence produced to show that the house occupied by respondent was a house of ill fame, resorted to for the purpose of prostitution and lewdness, between the dates laid in the information, which were March 1, 1904, and October 8, 1904. It is complained, however, that some of the. testimony received was objectionable, and that in receiving it there was error. This testimony related to the reputation of the house at periods prior to March 1, 1904. Standing alone, this testimony would not have been of value to prove the charge laid. In connection with other and undisputed testimony, it indicated merely that the same place, under the same management, had acquired, prior to the earliest date laid in the information, a reputation which con-tinued to and during the period charged in the information. A further objection is that witnesses were permitted to testify to the character of the house from its general reputation in the community during the period laid in the information and for a period of two or three years prior thereto. Evidence that the house was one of ill repute would not alone warrant a conviction of the offense charged. The essential elements of the offense charged are that the house was of ill fame, was resorted to for the purposes alleged, was kept by respondent, or that she aided in keeping it. People v. Russell, 110 Mich. 46. Taken in connection with other and undisputed evidence in the case, there was no error committed in receiving the evidence of reputation. Other objections to rulings upon testimony offered will be referred to later on.

3. The evidence in the case shows that respondent is a married woman, and that, during the period laid in the information, she and her husband were both living at the place in question. Counsel for respondent requested the •court to charge the jury that:

The evidence shows that the defendant was married, and during the time laid in the information was living and making her home with her husband at 66 North street, in the city of Hillsdale. Now I charge you the presumption of the law is that whatever defendant did in the way of keeping this house, if she did anything, was done under the coercion of her husband until the contrary is made to appear beyond a reasonable, doubt by the people, and in order to sustain this prosecution the people must prove this by a preponderance of the evidence, and if they have not shown beyond a reasonable doubt that the defendant was the keeper of this house, and did keep it, without coercion on the part of her husband, your verdict must be for the defendant, and you must not convict her.”

This was refused, and error is assigned upon such refusal. In the charge given, no direct reference is made to the fact that the respondent was a married woman, and no instruction was given upon the subject of presumption -to be indulged or rules to be followed in determining whether duress was exerted, or the effect if duress was exerted, by the husband. The jury were instructed, upon this point, that they must be satisfied beyond a reasonable doubt that respondent was the keeper of, or aided and assisted in keeping, the place in question. There is no evidence that respondent had a husband, excepting an understanding in the community that a man named Carl Wheeler was her husband, and proof of the fact that he and respondent had lived together apparently as husband and wife. The evidence fails to connect the husband of May Wheeler, or May Gardner, as she was sometimes called, with the business carried on at the house. The testimony admitted is undisputed and is to the effect that respondent, under the name Sarah Wheeler, kept an aoccunt at a local bank, and also one at a local hardware store. She occupied a three-story building, having on the ground floor a dancing room and some parlors, on the second floor living rooms and bedrooms, and on the third floor bedrooms. The cook and girls who were staying at the place during the time mentioned in the information— who were inmates of the house — conducted their commercial transactions with respondent; the girls paying her for-board and room rent, and dividing with her their earnings. One of them testified to having telephoned to respondent from another city, inquiring if she needed any girls, receiving an affirmative answer, and thereafter becoming an inmate of the house from March 27, 1901, to September, 1901. In view of this undisputed testimony, no testimony having been offered on the part of respondent, we think it was not error which should reverse the case to receive the-testimony concerning the bank account and the store account, in connection with the other positive testimony produced, as having some tendency to show the relation of respondent to the business carried on at this place. Nor was. it error to decline to give to the jury the instruction preferred on the part of the respondent. There is no presumption that the wife was coerced. 1 McClain on Criminal Law, §148; Commonwealth v. Cheney, 114 Mass. 281. The testimony does not even suggest that there was coercion, in fact. We have read the charge to the jury, and find it to be a fair one and fully as favorable to respondent as the case warranted.

No error appearing, the conviction is affirmed, and the court below advised to proceed to sentence.

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


text:
    PEOPLE v. CAMP.
    Drunkards — Drunkenness—Criminal Offense.
    A person, intoxicated when walking on a public street to land adjacent thereto, where he is arrested before complaint made, is properly convicted of a violation of the statute (§ 11736, 3 Comp. Laws), punishing intoxicated persons when on the public streets, etc.
    Exceptions before judgment from Hillsdale; Chester, J.
    Submitted November 16, 1905.
    (Docket No. 147.)
    Decided December 4, 1905.
    Bert Camp was convicted of drunkenness.
    Affirmed.

      Charles M. Weaver and Merton Fitzpatrick, for appellant.

      Clayton A. Powell, Prosecuting Attorney, for the people.
   Hooker, J.

Section 11736, 3 Comp. Laws, provides:

‘ ‘ The People of the State of Michigan enact: That any person who shall be drunk or intoxicated in any hotel, tavern, inn or place of public business, or in any railway car or street car, or in any street, alley, lane, highway, or railway, or other public place, or in any public assemblage of people shall, on conviction thereof, before any court of competent jurisdiction, be punished by a fine not exceeding $20.00 and the costs of prosecution, or by imprisonment in the common jail of the county not exceeding thirty days or by both such fine and imprisonment in the discretion of the court. ”

The defendant was convicted of a violation of the statute, the warrant charging “that one Bert Camp was on the 12th day of February, A. D. 1904, at the city of Hills-dale, in said county of Hillsdale, drunk and intoxicated on a public street and place in said city, to wit: On Hills-dale street, that being one of the public streets of Hills-dale, Mich., contrary to the form of the statute in such case,” etc. The evidence shows that he was arrested before complaint was made, by an officer, upon a triangular piece of land adjoining Hillsdale street, about two to six feet east of the sidewalk, while lying upon his back in a tussle with his brother. The evidence also shows that he had been drinking in a saloon upon Hillsdale street, and had gone from there out, upon Hillsdale street, to the place where he was arrested. Counsel contend that the warrant charges that defendant was drunk while on a public street; while the testimony shows conclusively that he was upon private property. The jury found that the defendant was intoxicated at the time charged, and upon a public street, viz., Hillsdale street. It seems clear that the testimony justified the jury in finding defendant guilty of being drunk upon the public street named, and the fact that he was also drunk on adjacent private property, where he was afterwards arrested, is not inconsistent with their conclusion.

We see no occasion to disturb the verdict, and the circuit court is directed to proceed to pronounce judgment upon the defendant.

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


text:
    PEOPLE v. SCOFIELD.

    1. Criminal Law — Robbery—Plea —Guilty—Statement of Accused — Explanation of Plea.
    Where, on a prosecution under section 11484, 3 Comp. Laws, for assault and robbery, the robber being armed and having an intent to kill if resisted, respondent pleads guilty, but . states that he had no intent to kill, it is error for the court to convict him of the offense charged, it being his duty in such case to enter a plea of not guilty and put respondent on trial.
    2. Robbery — Assault with Intent to Rob.
    A conviction of robbery cannot be sustained under section 11485, 3 Comp. Laws, defining assault with intent to rob.
    3. Criminal Law — Error and Certiorari — Erroneous Conviction-Reversal.
    Where, on error and certiorari in a criminal case, it appears that respondent was convicted upon a plea of guilty that should not have been received, and given a sentence authorized by law for the crime of which he was convicted, it is the conviction and not the judgment that is invalid, and on reversal a new trial will be ordered as in other cases of reversal.
    Error and certiorari to Lenawee; Chester, J.
    Submitted November 16, 1905.
    (Docket No. 240.)
    Decided December 4, 1905.
    Harry Scofield was convicted of robbery, and sentenced to imprisonment for not less than ten nor more than fifteen years in the branch of the State prison at Marquette.
    Reversed, and new trial ordered.

      Charles T. Wilkins and Thomas J. Mahon, for appellant.

      Theodore M. Joslin, Prosecuting Attorney, for the people.

       Rehearing denied January 23, 1906.

   Hooker, J.

The defendant was arraigned upon an information charging the offense defined by 3 Comp. Laws, § 11484, including the allegation “with intent if resisted to kill,” etc. To this charge he pleaded guilty. He was given a private examination by the circuit judge, and freely confessed the circumstances of the offense, and satisfied the'judge that his plea was voluntary. On the occasion of the sentence he was publicly interrogated by the judge, when he again admitted the circumstances, but denied that he had the intent to kill if resisted. He was thereupon sentenced to imprisonment at Marquette, for not more than 15 nor less than 10 years. The case was removed to this court by writ of error, upon the ground that the investigation made by the circuit judge failed to disclose facts warranting his acceptance of the plea of guilty, and imposing such sentence. Subsequently a writ of certiorari was taken to bring up the necessary facts in relation to the proceedings. A return was made by the judge, from which it appears that, after the plea of guilty, and at a private interview with the defendant, the judge fully explained the nature of the offense charged, and the penalty that might be inflicted thereon, that defendant admitted that he did with force and arms, while armed with .a dangerous weapon, make an assault on Anzonettie Angelí, with intent to rob her and take from her person a gold ring, and that he put her in great fear; but he denied that he had any intention of killing her, if resisted. The judge certified that he accepted respondent’s plea of guilty upon a charge of robbery, and imposed the maximum sentence provided by law, viz., 15 years, with a minimum of 10 years, and that he was not sentenced upon the charge •contained in the information, but “upon the lesser offense, to every element of which he knowingly and voluntarily pleaded guilty.” The record contains, the judgment entry, which recites that the defendant was, “upon his voluntary plea of guilty, duly convicted of the crime of robbery, armed with dangerous weapons, as appears from the record thereof.” It does not contain the usual formal entry of arraignment and plea. The warrant of removal recites the sentence and was accompanied by the statutory statement by the judge, giving the circumstances to which he states that defendant pleaded guilty to the charge of robbery.

It is contended that the record shows that the defendant did not understandingly plead guilty to the offense charged in the information. The prosecutor claims that he did understandingly plead guilty to every element of the offense of robbery, though not to the offense created by section 11484, and that he was properly, convicted and sentenced under section 11485, which provides:

“(11485) Sec. 16. If any person, being armed with a dangerous weapon, shall assault another, with intent to rob, he shall be deemed a felonious assaulter, and shall be punished by imprisonment in the State prison not more than fifteen years.”

The judge has not said so, however. The difficulty with this contention is that the record does not show that the defendant was convicted or sentenced for the offense described in that section. Neither do the facts, for they show him to have been armed with a dangerons weapon. It may be said that he was guilty of all included in that section and more, because he was armed with a dangerous weapon, and actually did steal from the person; both being alleged in the information. All of this is true, yet he could not lawfully be convicted of robbery under that section, for the offense there described .is not robbery. The case of People v. Calvin, 60 Mich. 119, is conclusive upon that question. Hence, if it could be said that .he had been, the conviction was erroneous. On the other hand, he has not been sentenced for larceny from the person, even if it can be said that he has been convicted of that. Moreover, the statute (section 11552) imposes a penalty not exceeding five years’ imprisonment, and the sentence would therefore be grossly excessive, even if we could assume that the court would have imposed the maximum, had he supposed he was sentencing for that offense. Evidently he was not convicted of that offense, though perhaps he might have been. The record admits of no other conclusion than that the defendant was erroneously convicted of the offense charged in the information; it having been the duty of the court to supplant the plea of guilty by one of not guilty, and put defendant upon trial for the offense charged in the information.

Defendant’s counsel ask his discharge, upon the theory that he was erroneously sentenced, and for the reason that the error is in the judgment and not in the conviction. See Elliott v. People, 13 Mich. 365; O’Neil v. People, 15 Mich. 275; Wilson v. People, 24 Mich. 410. This conviction is not valid, and the sentence erroneous within the principle of those cases. If it be established that the conviction was of the offense charged in the information, as defendant’s counsel insist that it was, the sentence was one that the law authorizes, and it can only be avoided in this case by setting aside the conviction as erroneous. In such case, a new trial is to be ordered as in ordinary cases of reversal. That this may be done when, as in this case, the cause is here on error and certiorari, appears from the case of People v. Murray, 89 Mich. 277 (14 L. R. A. 809), and even upon certiorari alone. See People v. White, 53 Mich. 539.

The judgment is reversed, and a new trial ordered.

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


text:
    PEOPLE v. POWLER.

    1. Criminal Law — Sentence—Commitment — Robbery — Nature oe Oeeense.
    The common-law crime of robbery being superseded by statute in this State, a finding and commitment reciting a conviction of the crime of robbery describe no crime known to the law.
    2. Robbery — Assault with Intent to Rob.
    A conviction of assault with intent to rob may be had on a prosecution under the statute (§ 11484, 8 Comp. Laws) defining robbery where the robber is armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed.
    Error and certiorari to Lenawee; Chester, J.
    Submitted November 16, 1905.
    (Docket No. 241.)
    Decided December 4, 1905.
    Ernie Powler was convicted of robbery and sentenced to imprisonment for not less than ten and not more than fifteen years in the State prison at Jackson.
    Reversed, and a new trial ordered.

      Charles T. Wilkins and Thomas J. Mahon, for appellant.

      Theodore M. Joslin, Prosecuting Attorney, for the people.

       Rehearing denied January 23, 1906.

   Grant, J.

The respondent in this case was the one impleaded with the respondent in People v. Scofield, ante, 221, in which an opinion is handed down herewith. The proceedings before the court were the same in both cases. As it was'decided in People v. Calvin, 60 Mich. 119, that the common-law crime of robbery is superseded in this State by the statute, it follows that the finding and commitment do not describe any crime known to the law of Michigan. Had the court found respondent guilty of assault with intent to rob, the conviction could have been sustained under several decisions. People v. Blanchard, 136 Mich. 146, and authorities there cited. See, also, People v. Calvin, supra.

Section 11486, 3 Comp. Laws, defines robbery when not armed with a dangerous weapon: It is not contended that respondent was sentenced under this statute, or pleaded guilty to that crime.

Judgment reversed, and new trial ordered.

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


author: Moore, C. J.

text:
    McWILLIAMS v. LENAWEE CIRCUIT JUDGE.
    1. Divorce — Bill—Requisites—Statutes.
    The statute (§ 8625, 3 Comp. Laws) providing that' the oath of complainant in swearing to a bill for divorce shall recite that the complainant swears there is no collusion, understanding, or agreement between the parties in relation to the application, is mandatory.
    2. Same — Default—Vacation—Chancery Rule.
    Where a bill for divorce contained no affidavit that there was no collusion between the parties, as required by section 8625, 3 Comp. Laws, a default entered on nonappearance of the defendant was not “regularly entered,” under Chancery Rule 7 d, and was therefore subject to vacation after six months notwithstanding the rule.
    Mandamus by Anna McWilliams to compel Guy M. Chester, circuit judge of Lenawee county, to vacate an order setting aside a default.
    Submitted November 21, 1905.
    (Calendar No. 21,400.)
    Writ denied December 4, 1905.

      Fellows & Chandler, for relator.

      Smith, Baldwin & Alexander, for respondent.
   Moore, C. J.

The relator asks for mandamus to compel the respondent to vacate an order setting aside an order vacating a default entered in a divorce case-in which relator was complainant and her husband was defendant. The order about which complaint is made was entered more than six months after the personal service of the subpoena in the divorce case. It is insisted by counsel .that the circuit judge had no jurisdiction to make the order, citing Chancery Rule 7, subd. d; Petley v. Wayne Circuit Judge, 124 Mich. 14; Carpenter v. Judge of Superior Court of Grand Rapids, 126 Mich. 8; and Kipp v. Lenawee Circuit Judge (not reported [Calendar No. 20,159], but heard in October, 1903). When the decisions cited were handed down, the subdivision of the rule cited did not read as it does now. It was believed by the court that the rule as construed by the court in the decisions cited resulted, in some cases, in doing an injustice, and in November, 1903, it was amended by inserting the words “default is regularly entered ” after the word “such.” The rule is found in 131 Mich, xxxvi.

It is insisted by the respondent that the default of the defendant in the divorce case was not regularly entered, and that he had a right under the rule to set aside the default. A brief history of the case is necessary to an understanding of the question involved. The complainant filed her bill October 29, 1904, asking for a divorce, and a subpoena was served the same day upon the defendant by one of the complainant’s solicitors in the divorce case. The bill showed there was a minor child. No subpoena was served on the prosecuting attorney. Defendant did not appear in the case, and his default was entered January 6, 1905, and the cause referred to a circuit court commissioner to take proofs. Testimony was taken before him; no one appearing for defendant, and the prosecuting attorney taking no part in the proceeding before the commissioner. Upon the 29th of April, 1905, the case was brought on for hearing upon the testimony taken before the commissioner and the testimony of the complainant taken in open court. The circuit judge returns that his recollection is that the prosecuting attorney was present in court in behalf of the people with reference to the custody of the child, but that the records do not show that he took any part in the proceedings. A decree of divorce was granted to complainant May 1, 1905. July 13, 1905, defendant in the divorce case filed a petition asking that his default be set aside, and he be allowed to appear and answer. He stated in the petition in substance that complainant filed her bill of complaint when she was angry; that it was collusively filed; that he continued to love his wife, and that the child was greatly attached to both of them, and he continued to hope and believe his wife would„be reconciled to him; that they continued to live together after the bill was filed, occupying the same bed until a few weeks before the decree was granted; that he did not appear and answer in the divorce case because his wife did not desire him to do so, and because he did not suppose the proceeding was to be carried on to a decree. The complainant answered this petition, a hearing was had, and an order made vacating the decree. On - the settlement of the order, complainant insisted that under the rules a rehearing could not be had unless the defendant deposited with the register of the court the sum of $50. September 16, 1905, the court made an order setting aside the default and granting a rehearing, upon condition that defendant answer in said cause and deposit said $50 within 10 days. This defendant did. On the 16th of October-complainant moved the circuit judge to vacate the order of September 16th, and upon his refusal to do so she applied to this court for the writ of mandamus.

The respondent says the default was not regularly entered, and relator is not entitled to her writ for the following reasons: First, because the bill of complaint does not comply with the mandatory provisions of section 8625, 3 Comp. Laws; second, because the subpoena was served by one of the solicitors in the case; third, because no subpoena was served upon the prosecuting attorney; fourth, because relator accepted what was beneficial to her in the order of September 16th, and is estopped from questioning the order. In our view of the case, it will be necessary to consider only the first of these reasons. Section 8625, 3 Comp. Laws, reads:

“No divorce shall be decreed in any case when it shall appear that the petition or bill therefor was founded in or exhibited by collusion between the parties; and the oath or affirmation administered to the complainant in swearing to such petition or bill shall, in addition to all other legal requirements, recite the following: ‘And you do solemnly swear (or affirm) that there is no collusion, understanding or agreement whatever between yourself and the defendant herein in relation to your application for divorce.’ And no divorce shall be decreed in any case where the party complaining shall be guilty of the same crime or misconduct charged against the respondent.”

The jurat attached to the bill of complaint is wholly silent upon the question of collusion, agreement, or understanding. This provision of the statute is mandatory. See Ayres v. Wayne Circuit Judge, 90 Mich. 380. Without a substantial compliance with this statute the case was not in a condition to have a default entered, nor was it in a condition to be heard. We have no doubt, had the judge known how the jurat read, he would have declined to hear the case. If it was possible for defendant to waive this provision, he has not done so. He did not appear and answer in the court, but, when he found his default and a decree had been taken, he sought to have them set aside, and the circuit judge granted his request. Under the circumstances shown by this record, we think there is nothing in the rule to prevent the circuit judge from setting aside the default.

The application of relator is denied.

MoAlvay, Grant, Blair, and Montgomery, JJ., concurred.


text:
    HAYWARD v. O’CONNOR.
    Appeal -and Error — Tax Proceedings — Bond.
    An appeal from an order overruling a motion to vacate an order dismissing a petition to set aside a certain tax sale and deed is a general appeal in chancery, in which no bond is required except to stay proceedings. Section 550, 1 Comp. Laws, as amended by Act No. 243, Pub. Acts 1899.
    Petition by Zachariah Hayward against William O’Con-nor, trustee, and James B. Bradley, auditor general, to set aside a tax deed: On motion of defendant O’Connor to dismiss an appeal from a decree dismissing the petition.
    Submitted November 14, 1905.
    (Calendar No. 21,384.)
    Motion denied December 5, 1905.

      Albert McClatchey, for the motion.

      Louisell & Nevius, contra.
   Ostrander, J.

Appellee O’Connor moves to dismiss the appeal of Hayward to this court from an order and decree of the circuit court for the county of Benzie, in chancery, made August 23, 1905, dismissing his petition, and a like appeal from an order made September 22, 1905, overruling a motion to vacate the order dismissing the petition. The facts, so far as they are important here, are: That peti-' tioner filed and served a petition to have a certain tax deed for the year 1899, owned by defendant O’Connor, trustee, set aside and the sale canceled. The matter coming on to be -heard upon the petition and answer on August 23,1905, the court, without hearing any evidence, dismissed the petition. On August 30th a motion was made in behalf of petitioner to set aside the decree of August 23d and to proceed with the hearing on the merits. This motion was •heard September 22, 1905, and denied. Claim of appeal was filed September 30th. The records of this court show that after filing said notice of appeal an application was made to this court for a writ of mandamus to compel the said circuit court to vacate his said order dismissing the petition, and the writ was denied, for the reason that the order complained of was an appealable order. The notice of appeal and copy of the claim of appeal were served by mail October 14, 1905.

The basis of the motion here is that, if petitioner was properly before the court below with his matter and desired to appeal from any order or decree of said court, he was required to proceed according to the provisions of section 67 (1 Comp. Laws, § 3890) of the tax law. It is said that the appeal was not claimed and notice of it was not given within 20 days after the making and entering of the decree, apd that no bond whatever has been filed. On the part of the petitioner (appellant) it is contended that in a case like his no bond is by the tax law required; that section 67, above mentioned, has np application because this is not a cáse where petitioner is disputing the validity of the tax; that he is proceeding under the provisions of section 70 of the tax law (1 Comp. Laws, § 3893), and occupies the position of an owner who within one year after he had notice of sale of his land for taxes moved to set said sale aside for the reason that the taxes in question had been paid. He claims that no bond is required because by the provisions of section 144 (added by Act No. 97, Pub. Acts 1899) of the general tax law no costs are to be taxed against either party in such a matter as this. In other words, if we understand the argument for appellant, it is that his appeal is a general chancery a>ppeal, and that he is not required, in order to perfect it, to file a bond because of the provisions of section 144 of the tax law.

A number of questions are raised and discussed which we prefer not to determine on a motion to dismiss an appeal, and we content ourselves with saying that appellant is warranted in asserting that the appeal in this case may be held to be a general appeal in chancery, in which cases a bond is not required, except to stay proceedings. 1 Comp. Laws, § 550, as amended by Act No. 243, Pub. Acts 1899; Harmon v. Metcalfe, 134 Mich. 643.

The motion to dismiss the appeal is denied.

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