author:
Montgomery, J.
      Hooker, J. Grant, C. J.

text:
    WELLER v. WHEELOCK.

    1. Constitutional Law — Obligation of Contracts — Tax Sales —Notice of Redemption — Change of Statute.
    Act No. 236, Pub. Acts 1903, amending sections 140 and 141 of the tax law (sections 3959, 3960, 1 Comp. Laws) by providing that the notice of purchase must be given to the owners “of any and all interests” in the land described, that payment may be made to the register in chancery, and changing the form of the notice accordingly, as applied to tax deeds issued before the amendment, affects the remedy of the tax purchaser only, deprives him of no substantial property right, and is not violative of the obligation of his contract. Grant, C. J., and Hooker and Ostrander, JJ., dissenting.
    2. Taxation — Tax Sales —Notice of Redemption — Statute-Amendment — Retroactive Effect.
    Act No. 236, Pub. Acts 1903, amending sections 140 and 141 of the tax law (sections 3959, 3960, 1 Comp. Laws) with respect to the notice to be served upon the owners of the original title, and the place of payment by the redemptioner, is not limited by its terms to titles acquired after it took effect, but applies to all notices served after it became effective. Grant, C. J., and Hooker and Ostrander, JJ., dissenting.
    3. Same — Inheritance Tax — Payment—Ejectment by Devisees —Condition Precedent.
    Payment of the inheritance tax due to the State from an estate is not, by Act No. 195, Pub. Acts 1903, sections 3 and 5, made a condition precedent to the maintenance of an action of ejectment by devisees.
    Error to Genesee; Wisner, J.
    Submitted January 10, 1908.
    (Docket No. 43.)
    Reargued October 8, 1908.
    Decided November 30, 1908.
    Ejectment by Addison M. Weller and others against Frank B. Wheelock, Lorenzo P. Wheelock, and Frank M. Smith, impleaded with Fred J. Pierson. There was judgment for defendants on a verdict directed by the court, and plaintiffs bring error.
    Reversed.

      Flbridge F. Bacon and Jonathan Palmer, Jr., for appellants.

      Colonel O. Swayze (Edward S. Lee, of counsel), for appellees Wheelock and Smith.

      McFarlan & Wilson, for appellee Pierson.

       This case was withheld from publication pending the motion for a rehearing in Brown v. Lennane, ante, 686.

   Montgomery, J.

This is an action in ejectment brought to recover the undivided six-sevenths of lot 17, in block B, of McFarlan & Co.’s Saginaw street addition to the city of Flint. A judgment was entered for defendants by direction of the circuit judge, and plaintiffs bring error.

It appears not to have been disputed that the record title to the property in question from the United States stood in Sarah J. Pierson at the time of her death, on July 22, 1900, nor does it appear to. be disputed that the six-sevenths’ interest in the fee was conveyed by will to the present plaintiffs, subject to the life estate of Ephraim J. Pierson, the husband of Sarah J. Pierson. The defendants claimed title by virtue of a tax deed executed by the auditor general to William O’Connor, trustee, on May 25, 1903, for the taxes of 1899. On the 22d of August, 1900, Ephraim J. Pierson was appointed executor of the estate of Sarah J. Pierson. He died on the 23d of March, 1903, and was succeeded in his office of executor through successive appointments, first by Charles S. Brown, and later by Homer J. McBride. On the 4th of August, 1903, a notice was served upon Charles S. Brown, administrator de bonis non, signed by William O’Connor, trustee, and conforming, in all substantial respects, with the requirements of sections 3959, 3960, 1 Comp. Laws, as amended by Act No. 204, Pub. Acts 1899, and after the lapse of a period of six months, this suit was instituted. Two objections are made to the validity of this notice: First, it is contended that by Act No. 236, Pub. Acts 1903, the requirements as to the form of notice were changed, and that the notice served in this case did not answer the requirements of the new statute; second, it is contended that, as the right to the undivided interest in this property had vested in plaintiffs prior to the date when notice could have been given to Mrs. Pierson, they are to be regarded as the grantees under the last-recorded deed in the regular chain of title to said land, within the meaning of the statute, and that service upon the administrator provided for by statute is only authorized when, at a time after notice is due, service might have been had upon the decedent.

Sections 3959 and 3960 were amended by Act No. 236, Pub. Acts 1903, and the amendment given immediate effect, so that the same was in force at the time of the service of the notice in this case. This amendment required notice to the owner or owners “of any and all interests in the land herein described,” etc.; the words “any and all interests ” having been inserted by amendment. The legislature also changed the form of notice, so that the latter directed payment to the tax purchaser or to the register in chancery of the county in which the lands lie; the latter provision for payment, namely, that to the register in chancery, being introduced by amendment. This is the contention of the defendants — and the court below accepted this contention — that upon the purchase of the tax title from the State the right to serve this notice in accordance with the terms of the statute then in existence became a part of the contract between the State and the purchaser, and that the same was not subject to subsequent change or modification, as such modification would amount to the impairment of the obligation of contracts. The court seems to have based its rulings on the case of Eldridge v. Richmond, 120 Mich. 586, and Griffin v. Jackson, 145 Mich. 23. In the case of Fldridge v. Richmond the purchase of the land was made from the State before there was any law in force requiring any notice by the tax purchaser or giving any time for redemption by him. It was held that the right vested in the law could not be divested by a subsequent provision for period of redemption. The case is obviously distinguishable from the present. Griffin v. Jackson, supra, was determined on other grounds, it being held that the deed was void on its face, but there is language employed in the opinion of Mr. Justice Hooker which gives support to the holding of the circuit judge. It was not concurred in by the full bench, and was not necessary to a decision of the case, and it therefore has not the weight of authority. It is not necessary in this case to determine whether, in so far as the. amendment of 1903 attempted to confer a right upon another class, namely, purchasers under tax titles, it was ineffective, in that it impaired the obligation of contracts. That question is not involved in this case. What we are here dealing with is the form of notice, and the requirement that it shall in form be directed to the owner or owners of any and all interests described and that it shall give notice of the right to make payment to the register in chancery of the county in which the lands lie. We are constrained to hold that the circuit judge was in error in reaching the conclusion which he did. The amendment of 1903 did not shorten the period of redemption. It divested the tax purchaser of ho substantial right by simply changing the form of notice, and providing that the payment for redemption might be made to the register in chancery. The amendment affected the remedy of the tax purchaser only, and not any substantial property right.

The case in this respect is not distinguishable from that of Curtis v. Whitney, 13 Wall. (U. S.) 68. In that case the plaintiff became purchaser at a public sale for delinquent taxes of a tract of land, and received the proper certificate authorizing him to a deed at the end of three years if the land was not redeemed. ' After the sale, and something over a year before the expiration of the three years, the legislature passed an act providing that, where any person was found in the actual occupancy of the land, the deed should not issue, unless a written notice had been served on the owner of the land or on the occupant by the holder of the tax certificate at least three months prior thereto. The plaintiff succeeded in obtaining her deed without giving this notice, and when she brought suit to quiet title, it was held, by the supreme court of Wisconsin, that her deed was void for want of notice. The case was taken to the Supreme Court of the United States, and the question distinctly presented as to whether the statute of Wisconsin requiring such notice impaired the obligation of the contract created by the issue of the certificate of sale. The court say:

“The right of the plaintiff to receive her deed is not taken away, nor the time when she would be entitled to it postponed. While she had the right to receive either her money or her deed at the end of three years, the owner of the land had a right to pay the money, and thus prevent a conveyance. These were the coincident rights of the parties, growing out of the contract by which the land was sold for taxes. The legislature, by way of giving efficacy to the right of redemption, passed a law which, was just, easy to be complied with, and necessary to secure, in many cases, the exercise of this right. * * * The authority of the legislature to frame rules by which the right of redemption may be rendered effectual cannot be questioned, and among the most appropriate and least burdensome of these is the notice required by statute.”

If it is competent for the legislature to require a notice where none was required before, it would seem to be unreasonable to hold that the form of the notice and the conditions of payment required might not be changed by the amendment of the statute. As was said in Coulter v. Stafford, 56 Fed. 564, 6 C. C. A. 18:

“ Under such acts no legal remedy of the holder of the tax certificate is taken away. He is simply required to observe a formality imposed by the statute. By the observance of this formality, all his rights are preserved to-him.”

See, also, Gage v. Stewart, 127 Ill. 207; Oullahan v. Sweeney, 79 Cal. 537; Herrick v. Niesz, 16 Wash. 74; State v. Krahmer, 105 Minn. 422. It is not very-material how we define the title which the purchaser from the State acquires. One thing is obvious, and that is that his title is subject to redemption for a period of six months. It is not then a title which is absolute as against all the world, and no.enlargement of the period of redemption is made by the act of 1903. That act simply fixes the remedy. It puts upon the tax purchaser the burden of serving notice and of permitting a payment to be made either to himself or to the register in chancery. Such legislation is within the class of remedial legislation referred to and discussed in the various cases cited above.,

It is suggested that this statute should not be construed as retrospective, but that it should only be held to have reference to titles acquired from the State after the statute took effect. The statute contains no such limitation in terms. It is unquestionably broad enough to include, and we think it manifestly was intended to include, all notices required to be given after the statute took effect. It is not in the nature of a new provision of law, but is a substitute for the pre-existing section 140. It prescribed the only notice which.from the time of its enactment is required, and it would be difficult to infer a legislative intent that it was not to have effect at once, and it would appear to be ingrafting upon the statute an exception which is not' expressed for us to hold that the legislative purpose was to make this applicable only to such lands the title to which should be thereafter acquired from the State. The general rule is:

“A statute which is amended is thereafter, and as to all acts subsequently done, to be construed as if the amendments had always been there, and the amendment itself so thoroughly becomes a part of the original statute that it must be construed in view of the original statute as it stands after the amendments are introduced and the matters superseded by the amendments eliminated. ” Endlich on Interpretation of Statutes, § 294.

The rule is recognized that a statute should have prospective operation only unless its terms show clearly a legislative intention that it should operate retrospectively. Cooley on Constitutional Limitations (7th Ed.), p. 529. And although there is no doubt of the right of the legislature to pass statutes which[reach back to, and change or modify the effect of, prior transactions, provided retrospective laws are not forbidden in terms by the State Constitution, and where no other objection exists to them than their retrospective character, a construction of a statute which has the effect to impair rights existing under previous statutes will be avoided if consistent with the express terms of the statutes. Id. See Angell v. West Bay City, 117 Mich. 688; Broffee v. City of Grand Rapids, 127 Mich. 89; Todd v. Election Com’rs, 104 Mich. 474 (29 L. R. A. 330). But by retrospective or retroactive laws, as the terms are used in this connection, is meant the law which takes away and impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed, and the Michigan cases referred to plainly fell within this definition.

In Todd v. Election Com’rs, the statute of 1895 (Act No. 17, Pub. Acts 1895), which required an election by the candidate nominated by two political parties as to which party ticket he would request his name to appear upon, was held not to apply to an election at which he had no opportunity to exercise this choice because the time allowed him by the statute had elapsed before the law took effect. Had this law been held to apply to the election in question, it would clearly have affected the status of the candidate as fixed by pre-existing laws, and to have cut off the relator from the exercise of the right which it was plainly the purpose of the statute to confer upon him. So in the case of Angell v. West Bay City, supra, a similar question was raised. There a cause of action accrued to the plaintiff for an injury sustained by Mm on the 15th of May, 1897. By an amendment of the charter of West Bay City a provision was for the first time introduced requiring that a person suffering an injury by reason of a defective street, sidewalk, etc., should serve a notice upon the clerk within 60 days after such injury shall have occurred. It was the plain purpose of the statute, of course, to give to the injured party 60 days after his injury occurred within which to serve this notice. It was held that the statute should not be applied to a case where the injury had occurred before the statute took effect, for the reason that he would not be allowed the time which the statute itself contemplated within which to serve the notice. While it was recognized that under our Constitution the case not having been one - dependent upon contract, a retrospective law might be valid, yet it was held that such operation should not be given unless such intention of the legislature clearly appeared. The case of Broffee v. City of Grand Rapids, supra, followed this case, and it was said that, if the contention of the city was to prevail, persons having claims against the city would not be upon an equal footing, and a construction which would mark such a difference was of course not adopted. None of these cases rule the present. As already pointed out in the present case, by the amendment of the statute the only provision now in force requiring notice and fixing the form is that enacted by the law of '1903.

It is contended that the plaintiffs are not in a position to maintain this suit for the reason that the inheritance tax to the State has not been paid. Reliance is had upon Act No. 195, Pub. Acts 1903, which reads as follows (section 3):

“Butno executor, administrator or trustee of an estate, in settlement of which a tax is due under the provisions of this act, shall be discharged and the estate or trust closed by a decree of the court, unless there shall be produced a receipt signed by the county treasurer and sealed and countersigned by the auditor general, or a copy thereof, certified by the county treasurer, or unless payment of the tax has been deferred as prescribed by section seven of this act.”

Section 5 provides:

“In such case the administrator, executor, trustee or other person having in charge or in trust any legacy or property for distribution subject to such tax, shall deduct the tax therefrom; and within thirty days thereafter shall pay over the same to the county treasurer as herein provided. If such legacy or property be not in money, he shall collect the tax thereon as determined by the judge of probate from the person entitled thereto, unless such tax has been paid to the county treasurer. He shall not deliver or be compelled to deliver any specific legacy or property subject to tax under this act to any person until the tax assessed thereon has been paid to him or to the county treasurer.”

If the State were here raising this question, there might be more doubt about it. But we think counsel have mistaken the effect of this legislation upon the title of the plaintiffs. No delivery of possession of the real estate to the devisees was necessary. Under the will these plaintiffs took title subject to the right of the executor to take possession of the same for the purposes of administration. The legatee might have had and defended possession in himself from the time the will was probated. Rough v. Womer, 76 Mich. 375. See, also, Howard v. Patrick, 38 Mich. 795. While it may be within the power of the executor to cause a sale of this land to be made for the purpose of paying the tax of the State, and while it may be within the power of the State to enforce this payment by similar action, this is a matter of no concern to the defendants, as subject to these rights the plaintiffs have shown a right to possession.

The other questions become unimportant. The judgment is reversed, and a new trial ordered.

Blair, Moore, and McAlvay, JJ., concurred with Montgomery, J.

Hooker, J.

(dissenting). June 19,1902, certain land bid in for the State for the tax of 1899 was purchased by O’Connor from the auditor general, in accordance to law-. May 25, 1903, a deed was issued to him in compliance with the statute then existing, and the title conveyed thereby was limited by the provision of Act No. 229, Pub. Acts 1897, as amended by Act No. 204, Pub. Acts 1899. This law (section 140) provided, in substance, that no writ of assistance should issue on behalf of a tax title owner until after he should have filed with the proper county clerk a return by the sheriff showing personal service by him upon the grantee or grantees, under the last-recorded deed in the regular chain of title to said land, and upon the mortgagee in the last-recorded mortgage, or his assignee of record, of a notice in said act prescribed. Section 141 required the tax holder to make a reconveyance of his interest in the property held under his tax deed to the parties in interest as appear of record, upon payment of certain sums, including interest and penalties, by any person entitled to such notice. June 18, 1903, the statute was amended (see Act No. 236, Pub. Acts 1903) by the inclusion of the words “the grantees under the fast recorded tax deed issued by the auditor general.” The form of the notice prescribed was also changed by inserting after the word “undersigned” the words, “or to the register in chancery of the county in -which the lands lie.”-' Another change was made by adding the words “of any and all interests in” after the word “owners” in the address of the notice. This act was given immediate effect. Both statutes cited provide that if any person entitled to notice be dead, notice may be served upon the executor or administrator of such person, with like effect, etc. August 4, 1903, a notice was served, in compliance with the provisions of the law of 1899, upon the administrator of Sarah J. Pierson, who was the last grantee of record in the regular chain of title, she having died July 22, 1900. The plaintiffs claim to be devisees of Sarah J. Pierson. The case seems to have turned upon the question of the sufficiency of the notice. We do not discover any claim that there were any mortgagees, assignees of mortgages, or holders of tax title deeds entitled to notice, even were the law of 1903 to govern the notice. It does not appear when or how defendants became occupants of the premises. Counsel for the plaintiffs state the following as the errors relied on:

(1) The admission in evidence of the notice, the defect stated being the omission of the words “any and all interests in ” from the address.
(2) The omission from the notice of the words “or to the register in chancery of the county in which the lands lie.”
(3) The refusal of the learned circuit judge to direct a verdict for the plaintiffs for the above reasons, and upon his direction of a verdict for defendants.

The title of the State was sold, but it was subject to certain conditions which attach to such sale by reason of the law. On performance of those conditions the title in O’Connor would become absolute, and this deed is to be construed no differently than a deed given by a natural person, containing similar conditions, would be. And such conditions would be strictly construed against the> grantor, and if the condition was in favor of a third party, it could be construed no less strictly as to him. This is a well-settled rule of construction. No one disputes the right of the plaintiffs to the benefits of a statutory notice. It was their right, an¿l defendants’ duty, to serve it upon the administrator, and when served, it was plaintiffs’ right to a reconveyance on payment. The notice was served, and they did not pay. Instead, they say:

“We will dispute your right to possession for want of a notice such as the law requires. It is true that you did serve exactly such a notice as the State required, and as you agreed to serve when you bought the land from the State, but the legislature has seen fit to change that law by providing for a little different notice, and by extending rights to reconveyance to other persons than originally contemplated, and we construe that act to be retroactive and to cover all cases of land owned under tax deeds, whenever they may have been given.”

A comparison of the acts of 1897, 1899, and 1903 show very plainly the objects which the legislature sought to attain on each occasion. Primarily it was to give one last opportunity to the owners to save their lands from.the effects of their failure to pay taxes. Up to the time of the sale to private persons the laws have always permitted landowners to redeem or repurchase their lands where bid in to the State, at any time. When that happened, it was lost to them. So by Act No. 229, Pub. Acts 1897, the State imposed a condition upon the purchase, viz., that an opportunity for repurchase with notice of such opportunity should be given. This was a clear matter of grace, resting on no interest or right remaining in the owner. In that act this was secured to the grantee or grantees under the last-recorded deed to said land, mortgagee or assignee in recorded mortgage or assignment. Two years later this act was amended, and the change made was a limitation of the right to grantees, mortgagees, etc., under the last recorded deed of the regular chain of title, while in 1903 the change made was by enlarging the class entitled to repurchase by making it include persons under the last recorded tax deed. These were the substantial amendments, and it is not to be supposed that the legislature intended to enlarge the class entitled to reconveyance from persons holding deeds taken while the law of 1899 was in force. In this case we cannot believe that the legislature sought to impose a duty to permit tax title owners, under a deed last recorded, regardless of its age, to redeem or repurchase, notwithstanding the State had sold its title upon no such condition, and I have no doubt of the invalidity of an act which should show such an intent as one impairing the obligation of contracts, and were a tax title owner asking such a construction for his benefit, would anyone say that he was right in his claim ? If not, this act should not be construed as retroactive, in that regard at least. Now this chances not to be that kind of a case, yet it is necessary to hold this act retroactive to sustain the plaintiffs’ contention, and to do it we are driven .to the expedient of making a distinction between rights and remedies, by saying that the design was not to make this act retroactive as to an enlargement of the class, but was intended to be retroactive as to the form of the notice in all cases — an intention that there is not the slightest evidence of on the face of the amendatory act, and a construction which, in my judgment, would be anomalous, and another verification of the trite adage, that “hard cases make bad law.” I think that this case is very clearly distinguishable, in this respect as well as others, from Curtis v. Whitney, 13 Wall. (U. S.) 68, Gage v. Stewart, 127 Ill. 207, Herrick v. Niesz, 16 Wash. 74, Oullahan v. Sweeney, 79 Cal. 537, and Coulter v. Stafford, 56 Fed. 564, 6 C. C. A. 18.

“ A retroactive effect will not be given a statute in the absence of a manifest intent by the'legislature, shown by the language, that it shall have that effect.” McIntosh v. Kilbourne, 37 Iowa, 420.

That a statute shall be regarded as having prospective operation only, unless its terms show clearly a legislative intention that it shall operate retrospectively, has been a settled rule in this State. The above language is Judge Cooley’s statement of the rule. See Cooley on Constitutional Limitations (7th Ed.) p. 529; Ludwig v. Stewart, 32 Mich. 27; Harrison v. Metz, 17 Mich. 377; McKisson v. Davenport, 83 Mich. 211 (10 L. R. A. 507); Todd v. Election Com’rs, 104 Mich. 478 (29 L. R. A. 330); Atherton v. Village of Bancroft, 114 Mich. 241; Angell v. West Bay City, 117 Mich. 688. The latter case involved a notice as a condition to bringing an action— quite as clearly a case of a statute affecting a remedy only as this case. Yet Montgomery, J., speaking for four of the five judges, held the act not retroactive. This was followed in Broffee v. City of Grand Rapids, 127 Mich. 92, in an opinion written by Mr. Justice Moore. In an opinion written by the late Justice Long, concurred in upon this point by all of the judges who sat, a number of earlier Michigan cases were cited, and we append them for future reference: See Todd v. Election Com’rs, supra; Heineman v. Schloss, 83 Mich. 153; Stitt v. Casterline, 89 Mich. 239; Smith v. Pinch, 80 Mich. 332; Finn v. Haynes, 37 Mich. 63; Maxwell v. Bridge Co., 46 Mich. 278; Danville Stove & Manfg. Co. v. Kent Circuit Judge, 88 Mich. 244. See, also, Davis v. Railroad Co., 147 Mich. 479; Philip v. Heraty, 147 Mich. 473; Little v. Bousfield & Co., 154 Mich. 369; Endlich on Interpretation of Statutes, § 271; Potter’s Dwarris on-Statutes, p. 163. In the latter work the rule is stated thus:

“Although the words of the statute are broad enough, in their literal extent, to comprehend existing cases, they must yet be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.”

Every judge who has sat upon this bench has sanctioned, if he has not expressed, similar sentiments.

Since the foregoing was written, another question has been raised which seems to require notice. Mr. Justice Montgomery discusses the definition of “retroactive laws.” I had supposed that there was no question about the retroactive nature of this law, if given the construction contended for by the plaintiffs, and that an important question was whether it should receive that construction. Counsel seem to have so understood it, and have not contended to the contrary. I must assume that this discussion was intended to have some bearing upon the case, and what is it, unless it be that, in the writer’s view, the provisions of this act are not retroactive in their nature because found in a law which does not fall within the definition of “retroactive laws,” and therefore the rule of construction hereinbefore .stated has no application ? I cannot assent to the apparent limitation upon the term “ retroactive ” to be inferred from my Brother Montgomery’s opinion. He says:

“ But by retrospective, or retroactive laws, as the terms are used in this connection, is meant the law which takes away and impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed.”

This language will be found (substantially) in 23 Am. & Eng. Enc. Law (1st Ed.), p. 155, but there it is not the definition itself, but the illustration of it; the definition being: “It [a law] is retrospective ■ when it applies to cases existing, as those,” etc. Again, the definition given is:

“A retrospective or retroactive law is one which operates upon matters which occurred, or rights and obligations which existed, before the time of enactment.” 23 Am. & Eng. Enc. Law (1st Ed.), p. 447.

No one can doubt that the illustrations fall within the term “retrospective,” but is the converse true? Do they limit the application of the term ? The difference between Mr. Justice Montgomery and myself upon this subject would not be important in this cause were it not that the limited definition adopted by him circumscribes the application to be given to the rule that a statute will be construed as prospective only, unless a retrospective effect is clearly intended. That rule has never been restricted to acts which destroy or impair vested rights acquired under existing laws, creaté new obligations, impose new duties, or attach new disabilities in respect to transactions already passed, but it has been applied to every law which, under the contention of counsel, was said to operate on matters which occurred before the time of enactment. If this is not so, why not cut the “ Gordian knot ” by saying that this is not a retroactive law, and for that reason covers the case and needs no construction, its terms not being uncertain, thereby avoiding the application of the other rule, stated by Mr. Endlich thus:

“ The rule to be derived from the comparison of a vast number of judicial utterances upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal, and unavoidable implication from the words of the statute taken by themselves and in connection with the subject-matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.” Endlich on Interpretation of Statutes, § 271.

The judgment should be affirmed.

Grant, O. J., and Ostrander, J., concurred with Hooker, J.

Grant, C. J.

(dissenting). The tax deed in this case was issued before the amendment of the law as to notice. The State had then parted with its title, which is conceded to be valid. It deeded it subject only to the right to a reconveyance upon the terms of the statute as it then existed. The purchaser’s obligation or agreement with the State was to give the original owner a notice as the law then stood, not as it afterwards might stand. The State could not impose any further burdens upon the tax purchaser thereafter without the consent of the other party to the contract. Suppose that when O’Connor obtained the State’s title, there had been no law providing for notice to the original owner and his right to a reconveyance upon certain terms, could the State thereafter enact a law providing for such notice and reconveyance as to O’Connor’s title ? If the State could not, it must be because the State could not pass a law impairing the obligation of contracts. That the State could not do this is beyond question. If the State cannot impair its obligation by such a law, for the same reason it cannot impose additional requirements upon a purchaser who has purchased subject to the conditions then imposed. For these reasons it seems to me that the tax purchaser was required to give only the notice as it existed at the time of his purchase. I the more readily reach this conclusion because as to all essentials the notice was sufficient, and the original owners have no excuse for insisting upon technicalities.

I therefore think the judgment should be affirmed, and concur in the opinion of Mr. Justice Hooker.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    FISCHER v. BOARD OF SUPERVISORS OF WASHTENAW COUNTY.
    Intoxicating Liquors — Local Option — Petitions—Withdrawal
    op Names — One Who Has Voluntarily Signed a Petition.
    Persons who have voluntarily signed a petition for an election to be held to ascertain whether the manufacture of liquors and the liquor traffic shall be prohibited within the limits of a county (Act 183, Public Acts 1899) may not withdraw their names therefrom after the petition has been filed with the county clerk.
    Certiorari to Washtenaw; Einne, J.
    Submitted February 23, 1909.
    (Calendar No. 23,251.)
    Decided March 16, 1909.
    Mandamus by Rudolph J. Fischer and another to compel the board of supervisors of Washtenaw county to strike certain names from petitions asking for the submission of the question of prohibiting the sale of intoxicating liquor to a vote of the people. There was an order denying the writ, and relators bring certiorari.
    Affirmed.

      John P. Kirk, John L. Duffy (William C. Manchester and Kred A. Baker, of counsel), for relators.

      Carl Storm, Prosecuting Attorney (Frank A. Stivers, of counsel), for respondent.
   Ostrander, J.

The only question presented on the part of relators, plaintiffs in certiorari, is ‘ whether persons who have signed a local option petition can withdraw therefrom at any time before the board of supervisors has taken final action on the petition.” Relators are some of the petitioners who sought to withdraw their names. It is said in the note to Sim v. Rosholt, 11 L. R. A. (N. S.) 372 (16 N. Dak. 77), where the* cases upon the general subject of the right to withdraw names from a petition or remonstrance are collected, that none of them denies the right of the signer of a petition or a remonstrance to withdraw his name therefrom while the same is in circulation for further signers, and before it has been filed or presented to the person or body to whom it is addressed, and that none of them recognizes the right to withdraw after the same has been finally acted upon. There is much confusion otherwise in the cases. The effect of the decision of this court in Patterson v. Mead, 148 Mich. 659, 666, is to deny the right of a petitioner to withdraw after the person or body to whom the petition is addressed has taken action upon the strength of the petition. Under the provisions of the local option law the petitions are required to be filed with the county clerk, and the first official action is that of the clerk. Act No. 183, Pub. Acts 1899, § 5. A reasonable rule, in view of the purpose of the act and of its various provisions, is that petitioners should not be permitted to withdraw after the petitions are filed in the office of the clerk.

The judgment is affirmed.

Hooker, Moore, Brooke, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    BRESLER v. DELRAY REAL ESTATE & INVESTMENT ASS’N.
    Constitutional Law — Statutes—Amendments—Scope.
    On a bill by the administrators, with the will annexed, for the specific performance of a land contract, it appeared that authority to make said contract was claimed under section 9078, 8 Comp. Laws; that said section was an amendment to section 6025, 2 How. Stat., and was entitled “An act to amend section one * * * being section 6025, 2 How. Stat., relative to the sale of lands for the payment of debts by executors, administrators, and guardians;” that said section as amended provided that ‘ ‘ whenever it shall be made to appear to the probate court that it is necessary for the preservation of the estate, or to prevent a sacrifice thereof, or for the best interest of all concerned therein,” the administrators may sell said estate for that purpose upon obtaining a license therefor. Held, that, under section 20, article 4, of the Constitution, the provisions of the act were broader than its title and were void, and complainants were not authorized to make the contract sought to be enforced.
    Appeal from Wayne; Donovan, J.
    Submitted October 6, 1908.
    (Docket No. 156.)
    Decided March 16, 1909.
    Bill by Eva Cramer Bresler and William E. Metzger, administrators with the will annexed of the estate of Joseph M. Bresler, deceased, against the Delray Real Estate & Investment Association for the specific performance of a land contract. Prom a decree for complainants, defendant appeals.
    Reversed, and bill dismissed.

      Beaumont, Smith & Harris, for complainant.

      Israel T. Cowles, for defendant.
   McAlvay, J.

The bill of complaint in this case was filed to specifically enforce a certain contract for the sale of certain real estate situated in the city of Detroit belonging to the estate of complainants’ decedent. The following statement of facts proved in the case was stipulated :

“The parties hereto, by their solicitors, have agreed upon the following as a statement of what was proved at the hearing in the court below. This statement is made in pursuance of section 3, Act 340, Pub. Acts 1907.

‘ Statement.
“Complainants are administrators with the will annexed of the estate of Joseph M. Bresler, deceased. The petitioner Eva Cramer Bresler is the widow, sole heir at law, and sole legatee, of deceased. Deceased died seised of the real estate described in the bill of complaint, which is vacant and unproductive. Nearly one-half of this land is swamp. The taxes thereon, including special assessments, have averaged $1,000 per annum for the past four years, and are increasing. A heavy assessment for sewers is likely to be soon made. The estate of Joseph M. Bresler has no income to pay these taxes or assessments. They have been paid out of the principal of the estate. On May 2, 1908, complainants agreed in writing to sell this real estate to defendant, and defendant agreed to purchase it at a price favorable and advantageous to the estate, and for the full and fair value of the land. It is unquestionably necessary for the preservation of the estate, and in order to prevent a sacrifice of it, and it is for the best interest of all concerned in the estate that this land be sold.
“After making the agreement of May 2, 1908, herein-before referred to, complainants began proceedings in the probate court, under the provisions of chapter 343 of the Compiled Laws of Michigan of 1897, and the amendatory acts, to obtain a license from the probate court of Wayne county authorizing them to make a private sale of said real estate to defendant. The petition set forth that the sale was necessary for the preservation of the estate and to prevent a sacrifice of it, and was for the best interest of all concerned therein. A license was duly made by the probate court, after a hearing on June 33, 1908, ordering complainants, and licensing them to sell the real estate to defendant, at private sale, according to the terms of the agreement of May 2, 1908. All of the steps and proceedings leading up to the making of this order and the issuing of this license were in due form, and were duly taken and had, as required by law, and complainants have filed with the probate court the bond and oath required by law before a sale in such cases. Complainants have procured a quitclaim deed from K. C. Robinson for the tax titles, as required by said agreement of May 2, 1908. They have also furnished the Burton abstract of title brought down to date, as required by said agreement. The complainant Eva Cramer Bresler has also executed and tendered a full warranty deed, signed by herself, as required by said agreement. Complainants have made a due and proper tender of everything that they have agreed to do under said agreement to sell, and have offered to report said sale to the probate court as required by statute, and to obtain the confirmation thereof by said probate judge. The defendant is willing and anxious to carry out and complete the sale as agreed, and admits that complainants have complied with all of the conditions of said written agreement of sale, except that it fears that they cannot give a good marketable title for the reason following: The estate of Charles E. Bresler, deceased, presented a claim against the estate of Joseph M. Bresler. This claim was heard by the commissioners on claims and was disallowed. From this disallowance the estate of Charles E. Bresler has appealed to the circuit court of Wayne county, and this appeal is still pending and undetermined. Defendant fears that if it buys the land in question under said probate court proceedings, the sale will be made subject to the lien or claim of said Charles E. Bresler estate:
“The following admission was read into the record at the trial in the court below: It is admitted that this is a friendly suit to determine whether the proposed sale of real estate by complainants to defendant, to be made under license of the probate court of Wayne county, shall, when consummated, vest in the defendant the entire right, title, interest, and estate of said estate of Joseph M. Bresler, deceased, free and clear of any lien, charge, or incumbrance arising from any claim or indebtedness that may now or hereafter be proved against said estate by any creditor thereof, or by any creditor of Joseph M. Bresler, and especially free and clear of the lien existing; or that may exist, because of an alleged claim of the estate of Charles E. Bresler, deceased.”

As appears from the foregoing statement, the determination of the question in the case depends upon the regularity and validity of the legislation which is invoked as a basis for a sale of these premises according to agreement. This is admittedly a friendly suit. It cannot be said to be in any sense a contest. Defendant desires to buy this land for $23,970, but desires that the court confirm his title in advance. Roth parties proceed upon the theory that the sale may legally be made, for the purpose specified, under chapter 243, 3 Comp. Laws, § 9078, without in any way questioning the regularity or validity of the sections relied upon. Under the circumstances the court must examine this statute, because if we accept without investigation the view of the parties to this suit. as our view of this legislation, we might later find that we had erred in our decision of the case. Chapter 243, 3 Comp. Laws, is entitled: “ Sale or pledge of lands of deceased persons to pay debts.” The subtitle is: “Of the sale of lands for the payment of debts by executors, administrators and guardians.”

The first statutory provision for the sale of real estate for the payment of debts enacted in Michigan was the act of January 31, 1809, 2 Terr. Laws, p. 25, § 49, entitled: “An act for the probate of wills, and the settlement of testate and intestate estates.” This section provided:

“ That when the personal estate of any person deceased shall not be sufficient to answer the just debts which the deceased owed, and legacies given, the judge of probate is empowered to license and authorize the executors or administrators of such estate to sell so much of the real estate of the deceased as will satisfy the just debts which the deceased owed at the time of his death, and legacies bequeathed by his last will and testament.”

The statute then provided for the application to the probate court to sell for the purposes mentioned. This section with slight amendments continued in force, and, as revised and re-enacted, appears in 1 Rev. Stat. 1838, p. 311, pt. 2, tit. 5, chap. 1, § 1, entitled: ■ “ Of title to real property by special provisions of law.” Chapter 1 is entitled: “ Of the sale of lands for the payment of debts by executors, administrators and guardians; ” the only material changes in the section above quoted at length being the omission of the words “and legacies given,” and the insertion of the words “ with the charges of administering his estate.” Through the following compilations this section remained without change under the same entitling to the chapter: Rev. Stat. 1846, chap. 77, § 1; 2 Comp. Laws 1857, chap. 101, § 1; 2 Comp. Laws 1871, chap. 163, § 1; 2 How. Stat. § 6025, chap. 229, § 1. By Act No. 121, Pub. Acts 1897, entitled: “An act to amend section one of chapter 163, 2 Comp. Laws 1871, being section 6025 of Howell’s Annotated Statutes, relative to the sale of lands for the payment of debts by executors, administrators and guardians,” the section under discussion was amended to read as follows:

“ Section 1. When the personal estate of any deceased person in the hands of his executor or administrator shall be insufficient to pay all his debts, with the charges of administering his estate, or whenever it shall be made to appear to the probate court that it is necessary for the preservation of the estate, or to prevent a sacrifice thereof, or for the best interest of all concerned therein, his executor or administrator may sell his real estate for that purpose upon obtaining a.license therefor,” etc.

This is the statute now in force, and under which the sale in the case at bar is sought to be made. The italicized lines show the amendment of 1897.

It is clear that the matter introduced by this amendment comes within the prohibition of section 20, art. 4, of the Constitution then in force.

“No law shall embrace more than one object which shall be expressed in its title.”

The amendment is inconsistent with, and outside of the purpose indicated by, the title of the original act as revised and re-enacted, and introduces matter outside of, and inconsistent with, the entitling of the amendatory act itself. There is nothing in this title to notify the members of the legislature, or other citizens, of the intent to give authority to sell real estate of decedents except for the payment of debts and expenses of administration. This latter provision was enacted before the adoption of the Constitution of 1850. The entire history of this legislation has been presented to show the settled policy of the State upon the subject-matter, and to emphasize the variance between the body of the amendatory act and its title. The question involved has been before the court so often, and the rule laid down is so familiar, that the citation of authorities is not necessary. Reference is had to 1 Comp. Laws, p. 81. No valid sale of this land could be made for the purpose of preserving the estate, or for any other purpose than the payment of debts and expenses of administration.

Complainant was not entitled to the specific enforcement of the contract in question. The decree of the circuit court is reversed, and a decree will be entered dismissing the bill of complaint, with costs of both courts to defendant.

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


text:
    CITY OF DETROIT v. DAILEY.
    Railroads — Highways and Streets — Separation op Grades— Proceedings.
    Chapter 103, 3 Comp. Laws, does not permit one jury, in one proceeding, to determine the necessity for the change of the grade of three parallel streets and ascertain the resulting damage to abutting property.
    Certiorari to the recorder’s court of Detroit; Connolly, J.
    Submitted November 17, 1908.
    (Docket No. 86.)
    Decided March 16, 1909.
    Petition by the city of Detroit for the separation of grades of certain streets and railroads: On motion of Elvin G. Dailey and another to dismiss. There was an order granting the motion, and petitioner brings certiorari.
    Affirmed.

      P. J. M. Hally, for petitioner.

      Bowen, Douglas, Whiting & Murfin, for defendants.
   Ostrander, J.

The petition is filed by the city of Detroit under the provisions of 2 Comp. Laws, chap. 102, which is entitled:

“An act to provide separate grades for railroads and public highways and streets where railroads intersect such highways and streets.”

In the opening section of the statute, and in succeeding sections, the words used import a separate proceeding for each street and highway. The city seeks to have one jury, in one proceeding, determine the necessity for a change of the grades of three streets and to ascertain the resulting damage to all property abutting upon those streets and affected by the change. An agreement, to which the city and various railroad companies and a street car company are parties, has been made for a change of grade oh streets crossed by the tracks of such railroad companies, according to a general plan, for the payment of the expenses of the improvements, and for an apportionment or division of the cost, including the damages paid to abutting owners, among the parties to the agreement. The statute provides that the question for the jury shall be the necessity of the change of grade in accordance with this plan. The three streets mentioned in the petition appear to be so situated with reference to each other that, if a change of grade is made in one of them, in accordance with the plans adopted, a similar change must be made in the others. Therefore, if a jury determines that the change in one of the streets is necessary, it would, upon the same facts, find a similar change in the others to be necessary. The required ordinances were passed by the common council at the same time. Indeed, it is said in the brief for the city that the necessary work is in progress on the three streets. Upon the motion of a property owner, who was affected only by the separation of grades on one of the streets, the recorder dismissed the petition, and discharged the jury which had been summoned.

It is possible that, under the circumstances disclosed, convenience and the dispatch of public business will be served by pursuing the course proposed by the petitioner. If three streets may be joined in one proceeding, there would be no legal,objection to joining a larger number, and unless such a course may be pursued, at the suggestion of a petitioner in every case, the question of whether it may be pursued in a particular case must be a question of judgment — of fact. The statute is general, applicable to the separation of grades in other cities and in the country. A construction of the statute such as petitioner asks for is clearly not the necessary, and we think is not the reasonable, one.

The ruling and order of the recorder is affirmed, with costs to defendants in certiorari.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


author: Grant, J.

text:
    MacKINNON BOILER & MACHINE CO. v. CENTRAL MICHIGAN LAND CO.
    1. Contracts — Ambiguity—Evidenoe—Parol Evidence — Admissibility-Instructions.
    Plaintiff made a contract with defendant to construct an apparatus, included in which were retorts. The evidence on the part of plaintiff tended to show that the purpose for which it was to be used was not disclosed; that it was made from plans and specifications furnished by defendant; and that it was accepted. The evidence on the part of the defendant was to the effect that the plans and specifications were furnished plaintiff and it was left to plaintiff’s judgment to furnish the proper machinery; and that the retorts were not constructed so as to be adapted for the purpose for which they were intended. The brief of defendant’s counsel admitted that the contract was not entirely contained in the plans aiid specifications furnished plaintiff. Held, that the terms of the contract made were ambiguous and that parol evidence was admissible to explain them, and that a requested instruction that the term “retort” meant a gas-tight receptacle was properly refused.
    2. Trial — Instructions—Requests to Charge.
    In an action for the price of certain apparatus manufactured for defendant, plaintiff claimed pay for certain extras. Defendant gave evidenoe tending to show that the claim for extras was not charged upon plaintiff’s books of account until after the controversy arose over the contract, and that plaintiff only demanded the balance of the contract price. Held, that a request to charge calling attention only to a portion of the testimony bearing upon the issue was properly refused.
    8. Appeal and Error — Bill op Exceptions — Omissions.
    Where the bill of exceptions does not contain a statement of the judgment entered, defendant cannot complain of an instruction in regard to the recoupment of damages for breach of the contract sued upon; since if the jury decided that plaintiff had complied with the terms of the contract the question of damages was immaterial.
    4. Witnesses — Competency—Evidence—Admissibility.
    The admission of evidence of a witness that he was present a part of the time when the details of a contract were being discussed, and that defendant’s agents did not make certain statements testified to by them 'upon the trial, was properly received; since it cannot be assumed that the witness intended to testify as to conversations had in his absence.
    Error to Bay; Collins, J.
    Submitted November 17, 1908.
    (Docket No. 113.)
    Decided March 16, 1909.
    Assumpsit by the MacKinnon Boiler & Machine Company against the Central Michigan Land Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

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

      James E. Duffy (Fred W. De Foe, of counsel), for appellee.
    The defendant is the owner of a large tract of land in Ogemaw and Roscommon counties. It became interested in the production of turpentine through a process known as the “destructive distillation of wood.” The pine stumps were utilized for this purpose. ■ One Mr. Coon had a small plant at Roscommon. He and one Dr. Thomas, representing the defendant, consulted an engineer, Mr. Lumgear, who made a tracing from a pencil sketch, made by Mr. Coon, of the machinery and apparatus required in the construction of the plant. Dr. Thomas and Mr. Coon took this tracing or sketch to the plaintiff, and after some negotiations plaintiff made a proposition by letter under date of January 31, 1906. Upon further investigation by the defendant’s agents other things were found necessary, and on February 5, 1906, the plaintiff submittéd to Mr. Coon the following proposition:
    “ February 5, ’06.
    “Mr. W. M. Coon,
    “Roscommon, Mich.

      “Dear 8ir: We purpose to furnish you, f. o. b. Bay City, the following: 6 retorts 4 ft. 6 in. diameter, 20 ft. long, in. plate in shell and rear head. § in. plate in front head. 2\ in. by 2£ in. by in. angle around front end. Trough on bottom of each retort. 8 in. diameter open top dome 10 in. high on each shell. 3 in. by 2 in. by •fw in- angle reinforced with bar iron, 18 in. track gauge inside and full length of each retort. Front door fastening to angle with hinges and 8f in. studs. No 12 sheet steel thimble to go over front end of each retort. 12 cars 19 ft. 10 in. long over all, each with five sets 7 in. diameter, 2 in. face truck wheels, with 1% in. square axles. Bottom of cars made of No. 10 sheet steel and 2 in. by 2 in. by J in. angles. Sides of No. 16 sheet steel with 2 in. by 2 in. by ¿ in. angles. 1 transfer car 9 ft. wide, 18 ft. long, frame made of 4x6 timbers. Car to have 8 18 in. diameter^ car wheels with 1-J- in. diameter shafts. 12-lb. rail, 18 in. track gauge, on top of car. Car fitted with gears, frictions, shafts, etc., all in accord with drawing you submitted. 6 coolers 4 ft. 6 in. diameter, 20 ft. long with back head and front door all of No. 10 sheet steel. Track 18 in. gauge in bottom, made of 3 in. by 2 in. by -fV in- angle, reinforced with bar iron. 1 set 4 ft. bar grates to cover space 12 ft. wide. 24 T. arch bars 1J in. thick and reinforcement lug 1 in. thick. 7 14 in. 16 in. back arch frames and doors. 5 18 in. diameter, 16 ft. long stacks made of No. 14 sheet steel, with hand at top and bottom and necessary eye bolts. All for the sum of two thousand seven hundred eighty-eight dollars ($2,788.00).
    “Yours truly,
    “H. D. MacKinnon.”
    On the same date the plaintiff, through Mr. MacKinnon, wrote a letter to the defendant agreeing to deliver the machinery f. o. b. Bay City within 60 days. This proposition was accepted, the goods constructed and shipped in May. The retorts and other machinery were installed and put in operation. Defendant paid plaintiff $1,500 on the contract. When the retorts were received at Nolan and unloaded from the cars, defendant claims that the retorts were not in accordance with the contract, that they were not gas-tight, that they caulked them, hoping that they would serve the purpose for which they were intended, but that they did not. Defendant refused payment, and thereupon plaintiff brought this suit to recover the balance due upon the contract and for certain extras. Defendant with its plea of the general issue gave notice of recoupment for damages resulting from the failure of the plaintiff to perform its contract. Plaintiff had verdict and judgment, but what the amount of the judgment was. the record fails to show.
   Grant, J.

{after stating the facts). 1. Without objection the agents of the respective parties who made this, contract for their principals were all permitted to state fully the negotiations, conversations, and parol understandings or agreements as to the construction of the retorts, etc., specified in the contract. The court was requested by the defendant to instruct the jury that the word “retort,” specified in the contract, meant a gas-tight vessel, and that parol evidence showing that a different retort was agreed upon was incompetent, and that the contract was made with reference to such a gas-tight retort. This the court refused, and instructed the jury that the word “retort” implies a gas-tight receptacle as a general proposition, but left it to the jury to determine whether it had that meaning in this contract. This presents the principal question in the case.

The “retort” used in chemical operations is defined as follows: •

‘ ‘ In chemistry and the arts, a vessel of glass, earthenware, metal, etc., employed for the purpose of distilling or effecting decomposition by the aid of heat. Glass retorts are commonly used for distilling liquids, and consist of a flask-shaped vessel, to which a long neck is attached. The liquid to be distilled is placed in the flask, and heat is applied. The name is also generally given to almost any apparatus in which solid substances, such as coal, wood, or bones, are submitted to destructive distillation, as retorts for producing coal gas, which vary much both in dimensions and in shape.” Century Dictionary.

See, also, definition in Webster’s Dictionary.

The evidence on the part of the plaintiff is to the effect: That Dr. Thomas and Mr. Coon presented to Mr. MacKinnon, plaintiff’s agent, certain plans for these retorts and the other material; that Mr. MacKinnon asked them, the purpose of their use; that they declined to state this purpose; that they represented to him that the retorts need not be gas tight; that there would be a slight pressure upon them not to exceed 10 pounds; that the rivets were by agreement placed three inches apart; that Mr. Coon was to instruct them in regard to the construction of the retorts, and when they were made they were to be inspected by Mr. Coon; that they were built exactly as directed by Mr. Coon; that when they were completed and Mr. Coon was notified, Dr. Thomas and Mr. Coon came to the plant of the plaintiff and inspected them; that on looking inside they could see daylight between the rivets ; that they then informed Mr. MacKinnon that the retorts were not sufficiently tight; that Mr. MacKinnon then agreed to caulk them; that it was believed by them all that this would remedy the trouble; that they were caulked in the presence of Dr. Thomas and Mr. Coon and were accepted as satisfactory, and were afterwards shipped to defendant at Nolan. Plaintiff also gave evidence tending to show that it was ignorant of the necessity of making these retorts gas tight, and relied upon the statement of Dr. Thomas and Mr. Coon that it was not necessary to make them so. The defendant gave evidence to the effect that they placed their plans before Mr. MacKinnon and left it to his judgment to make the proper machinery, that they did not agree that the rivets should be placed three inches apart, and did not inform him that it was unnecessary to have the retorts gas tight. In brief, the testitimony of these witnesses on all material facts is in direct conflict.

Counsel for defendant cite many authorities from this and other courts holding that a written contract definite and unambiguous cannot be changed or extended by parol. The rule is well established and needs no citation of authorities. Does this contract come within that rule ? Or does it come within the exceptions to it, where the written instrument does not express the entire agreement or understanding of the parties, or where a term is used susceptible of different meanings? The trouble lies only in determining whether the facts of a case bring it within the rule. Defendant’s case in this regard is based upon the proposition that a retort necessarily means ■ a gas-tight vessel, that it was so understood in this contract, and parol evidence to vary this common definition is inadmissible. It is quite probable that, defendant was engaged in an experimental enterprise; that its agents, Dr. Thomas and Mr. Coon, did not fully understand the character of the material required. If it be a fact that they declined to inform Mr. MacKinnon the purpose for which these retorts would be used, it left him also in ignorance as to the necessity of gas-tight retorts and the character of the machinery required. Dr. Thomas testified that he told Mr. MacKinnon that Mr. Coon was their practical man and would give the MacKinnon Manufacturing Company the details of the construction. That this agreement did not include the entire contract is virtually admitted in the defendant’s brief, for they specify several things in regard to the construction which are not found in the written agreement. To illustrate: They say in their brief “that the retorts would have a trough in the bottom tapering to the center, where there was to be an opening or spout eight inches in diameter.” The contract provided for a trough, but no specification as to its size or the size of the opening. This and other things are stated in the brief as belonging to the contract, but they are not specified in it. The plans submitted did not show the location of the rivets. That they should have been nearer together to make a gas-tight retort is evident. The proposal by the plaintiff which was accepted by the defendant was made, according to plaintiff’s testimony, in view of the location of these rivets and other specifications made to them during the prior negotiations. The object of the testimony was not to contradict, but to explain, the contract. To those not versed in mechanical terms and in chemical apparatus the word would convey a very indefinite meaning. Without explanation, a jury would probably not fully comprehend its exact meaning.

“Where any doubt arises as to the true sense and meaning of the words themselves, or any difficulty as to their application under surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument, for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party.” 17 Cyc. p. 682.

In Preston National Bank v. Purifier Co., 102 Mich. 462, it was held competent to introduce parol evidence to show in what sense the parties used the word ‘ accounts.” See, also, John Hutchison Manfg. Co. v. Pinch, 107 Mich. 12; Liggett Bpring & Axle Co. v. Michigan Buggy Co., 106 Mich. 445; 5 Current Law, p. 1319, § 5; Windsor v. Bailway Co., 37 Wash. 156 (Eng. Ann. Gas. 62). The defendant’s requests upon this point were properly refused.

2. Plaintiff claimed pay for certain extras. The defendant gave evidence tending to show that the cost of these was not charged upon the plaintiff’s books of ac-. count until the controversy arose over the contract, and that it demanded only the balance of the contract price. Error is assigned upon the refusal of the court to instruct the jury that they should consider these facts in determining whether these alleged extras were or were not included in the contract. It is not good practice for the trial judge to select a portion of the testimony and give it prominence by instructing the jury that they should consider it. If the trial judge undertakes to refer to the evidence bearing upon a disputed point, he should carefully state it all on both sides. This request was faulty in calling attention to only one part of the evidence. It was not error to refuse it. The judge instructed the jury that, if they believed the testimony on the part of the defendant, these items were included in the contract, and plaintiff could not recover; but, if they believed the testimony on the part of the plaintiff, they were not included in the contract, and the plaintiff could recover for them. No error is assigned upon this instruction. It submitted to the jury all the evidence upon the question.

3. Errors are assigned upon the instruction of the trial judge as to the measure of damages which the defendant was entitled to recover provided the jury should find that the plaintiff had violated its contract in failing to construct the machinery in accordance therewith and the failure to deliver it within the time specified. The record is not in a condition to render it necessary to consider these alleged errors. It does not show what the judgment was. It does not even state that a judgment was rendered for plaintiff. It is impossible to determine, therefore, whether the plaintiff recovered the full amount of the contract price and the extras. There is nothing on the record to show that the jury found it necessary to consider the question of defendant’s damages. If they found that the plaintiff complied with its contract, the question of damages was immaterial. Brown v. Harris, 139 Mich. 372, and authorities there cited. We said in that case, speaking through J ustice Carpenter :

“ The jury must have found either that the goods actually conformed to the contract, or that defendants accepted them as conforming to the contract. If no error of law was committed in reaching that conclusion (a subject which will receive attention later in this opinion), defendants were not, as they insist, injured by the exclusion of testimony offered by them tending to prove the amount of their damages. Had the excluded testimony been admitted, it could not have affected the result, since it bore upon an issue which the jury did Dot consider. The error in excluding such testimony, if error it was, was not prejudicial ” — citing authorities.

4. The negotiations leading to the making of the contract were had mainly with Hector D. MacKinnon on the part of the plaintiff, and Dr. Thomas and Mr. Coon on the part of the defendant. Arthur MacKinnon testified that he was present during a part of these negotiations, but not all. He was permitted to testify that Dr. Thomas and Mr. Coon did not make certain statements testified to by them. He testified that he was present when the details were discussed upon which the proposition was made. The admission of this testimony is alleged as error. It was competent for him to testify as to conversations he heard and what was, and what was not, stated in those interviews. A jury must be credited with common sense, and it is proper to assume that the testimony of the witness was ably presented to the jury on the part of the defendant. It cannot be assumed that the witness testified, or intended to testify, to conversations which he did not hear. There was no error in admitting the testimony.

The judgment is affirmed.

Blair, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.


author: Montgomery, J.

text:
    BARTHEL v. CRIPPEN.
    Equity — Specific Performance — Contracts — Patents — Inconsistent . Claims — Newly Discovered Evidence — Remanding.
    On a bill to establish an interest in certain patents, evidence of an interference case pending in the Federal patent office examined, and held, to be so inconsistent with complainant’s claim as to justify a remanding of the record to the trial court for consideration in connection with the evidence in said interference case.
    Appeal from Wayne; Brooke, J.
    Submitted November 17,1908.
    (Docket No. 115.)
    Decided March 16, 1909.
    Bill by Otto F. Barthel against George F. Crippen and, Lewis Crippen for the specific performance of a contract and to establish an interest in certain letters patent. From a decree for complainant, defendants appeal.
    Reversed, and remanded.

      Henry G. L. Forler, for complainant.

      Lee N. Brown (John P. Kirk, of counsel), for defendants.
   Montgomery, J.

This bill is filed by the complainant to obtain a decree declaring him entitled to a one-half interest in certain letters patent issued to the defendant George F. Crippen, and to the improvements made thereon. The bill alleges that the defendant is the owner of United States letters patent No. 753,370, dated March 1, 1904, and Canadian letters patent No. 92,058, dated March 14, 1905, and various other applications for letters patent of the United States serial No. 280,242, filed September 26, 1905, and a certain other application for letters patent of the United States, the serial number and date of filing of which is unknown to the complainant. The bill avers that in February, 1906, complainant entered into a verbal agreement with the defendant, which, briefly stated, was that the complainant was to advance an amount of money up to the sum of $2,500, and develop and construct a patent bean picker which was the invention covered by the letters patent in controversy, and to enlist the services of a .competent engineer and draftsman to devise and get out new designs and new working drawings, tracings, blue prints, etc., and that in consideration of this advance the machines which were to be manufactured by the use of this money were to be placed upon the market and the parties were to share equally in the profits, and that in addition to that, the complainant was to receive an assignment of a one-half interest in the patents and improvements to be made thereon. The answer of the defendant denies in toto the claim of the complainant that he was to have any interest in the patent, and avers, on the contrary, that complainant agreed to build 10 machines under the patents described, and that said 10 machines were not to exceed in cost the sum of $2,500, or $250 each, and that defendant undertook to sell said machines at $600 each during the season of 1906, and that out of the gross sum so received complainant was to be repaid his $2,500, and money advanced at the rate of $5 per day to the defendant to pay his expenses on the road in perfecting and selling the machines, the net proceeds of $3,500 thus to be made to be divided equally, and the cost of making the patterns was to be taken out of defendant’s share of $3,500 or thereabouts in addition to the $5 per day hereinbefore mentioned. It is alleged by the bill that after the parties had entered upon the performance of the agreement the defendant took possession of certain drawings which were being used in the construction of the machine, and took them away and refused to return them, and interfered with the completion of the contract by the complainant, who had done, and was doing, all that could be done in the performance of his contract. The answer denies that complainant was entitled to the possession of the drawings, and avers that they belonged to the defendant at all times. The bill also sets out that the defendant George F. Crippen made a pretended assignment of the patents in question to Lewis Crippen, his codefendant, who purchased the same with full knowledge of the contract between his codefendant and complainant, and was not entitled to any greater rights in the patent than the defendant George F. Crippen would have had were it not for the assignment. The case was heard upon testimony taken in open court, and a decree entered that the complainant was entitled to and owned an undivided one-half interest in the inventions, letters patent, applications, and any and all improvements. The defendants appeal to this court.

Since the case was appealed, a motion has been made to remand the case (154 Mich. 499), for the purpose of taking testimony showing that George F. Crippen had filed an application in the United States patent office covering an improvement upon the original bean picker covered by the letters patent named in the bill, and that one Oliver E. Barthel, a brother of complainant, had filed an interference, which is still pending in the patent office, and that in such interference the complainant, Otto F. Barthel, was one of the attorneys representing said Oliver E. Barthel, and that the position taken by him in that interference case was wholly inconsistent with the testimony which he gave on the trial of the present case. It appears that in the interference case complainant made an affidavit referring to the present case, in which he stated that the subject-matter of the present case was to enforce a contract relation between himself and Crippen concerning certain patents, and does not concern in any way the parties to this interference nor the subject-matter thereof.

Turning to the record in the present case, we find that the complainant testified that before concluding his arrangement with defendant he spoke to his brother, Oliver E. Barthel, and in answer to the question, ‘ ‘ And then what final agreement did your minds meet upon ?” answered:

“Now I told him this, Isays, that machine cannot be built for $250 after including the cost of design. I said if that is the case, I will furnish 10 times $250 or $2,500, up to that amount, as needed, and furnish the designing of them, my brother getting out the designs for the machine. * * * He was to give me a half interest in the patent and improvements, and also half of all the profits in the business, and he was to advance money equal with me after the $2,500 had been exhausted.”

Oliver E. Barthel was a witness in the present case, and testified about the alleged agreement between the complainant and the defendant, supporting his brother in the main, and in answer to the question, “What arrangement was made as to the designing of these machines that were to be constructed,” replied:

“ Well, the designing was included; that is, on account of taking off the $500, my brother agreed to have me design the machines, instead of furnishing $3,000 as originally agreed upon or talked about.”

He also testified that at that time Mr. Crippen had nothing, except he told witness what he wanted, and showed him a circular that he had of his old machine, which circular shows a cut of a vertical arm machine. Witness further stated that Crippen told him he wanted to make a horizontal roller machine with a central drive; that he did not exactly remember the details that they talked about. He further testified that during the time he was designing this machine Mr. Crippen gave him some drawings, and produced the drawings. He stated that he made some changes in this drawing, which appeared on the drawing itself.

It is obvious that the claimed contract of the complainant in this ease with the defendant established such relations between the two that Oliver E. Barthel was in the employ of the two parties to the contract, and that the agreement to design and assist in the construction of the machine which the parties were to own in common should preclude both him and the complainant from claiming that such design was an original invention which would render less valuable the invention of the defendant. In the brief of complainant it is stated:

“The new and improved machine of the horizontal type, which had been constructed, had been designed and devised by Oliver E. Barthel, and on the 12th of November, 1906, after the defendant Orippen had entirely repudiated his contract, Oliver E. Barthel made application for patent covering the improvements of which he claimed to be the inventor. An interference resulted from these two applications, involving only the question of priority as between Oliver E. Barthel and George W. Orippen as to the improvements, and is now being tried out in the patent office at Washington. This interference is entirely separate and distinct from the contract entered into between the complainant,. Otto F. Barthel, and George F. Orippen.”

We cannot accept this view. It is obvious from the testimony of Oliver E. Barthel in this case that the suggestion of a modification of the machine covered by defendant’s letters patent to a horizontal machine came from Orippen himself, and that the relations of the parties were such that had the copartnership alleged- been carried out, Oliver E. Barthel would not have been entitled to claim the invention as against his employers. The testimony of this interference would at least have a bearing upon the question of what the decree should be. It may, upon consideration by the trial court, be deemed to have a broader significance, and bear upon the question of the credibility of the witnesses in the case.

The application for leave to remand the case was reserved until the hearing. It has now had full consideration in connection with the record and briefs in the original case, and we conclude that the rights of the parties will be best served by an order remanding this record, with leave -to the defendants to put in the further testimony asked for in their petition, and with leave to complainant to reply thereto. The costs, as upon a motion, will be awarded to the defendants.

Blair, O. J., and Grant, Ostrander, and Brooke, JJ., concurred.


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    HAUGHTON ELEVATOR & MACHINE CO. v. DETROIT CANDY CO.
    Foreign Corporations — Nonpayment of Franchise Fee — Effect
    —Contracts.
    A contract by a foreign corporation for the sale and installation of an elevator and the making of repairs upon another elevator, construed as a whole, is a contract for the transaction of business within the State; and plaintiff not having paid the franchise fee required by Act No. 34, Pub. Acts 1903, is precluded from maintaining an action for a breach thereof.

    Error to Wayne; Bohnert, J.
    Submitted January 20, 1909.
    (Docket No. 158.)
    Decided March 16, 1909.
    Case by the Haughton Elevator & Machine Company against the Detroit Candy Company, Limited, for breach of a contract for the installation and repair of certain elevators. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      May & Dingeman, for appellant.
    Merriam, Yerkes & Simons, for appellee.
    Plaintiff is a foreign corporation, with its plant and offices at Toledo, Ohio. Its business is the manufacture, construction, and installation of freight and passenger elevators. It maintains no office in this State. The defendant is a partnership association, limited, under the laws of Michigan, and doing business in Detroit.
    On March 27, 1907, defendant accepted a proposition made to it by plaintiff on March 7th. The acceptance made a complete and binding contract. By it plaintiff agreed “to furnish and erect in deféndant’s building in Detroit, one belt-connected electric freight elevator in accordance with the following specifications.” It is unnecessary to state the specifications any further than to say that defendant agreed to furnish in place all necessary supports, guide posts, and sheave beams, to do all cutting of floors, walls, and masonry, to provide clear and unobstructed room for the placing of elevator with belongings and attachments, and to allow plaintiff the unobstructed use of space while installing elevator. The contract also provided:
    “For the old elevator, we are to furnish and erect parts as follows: Guide posts, weight guides, guide strips, overhead sheave beams. To cut platform to fit hatch 5 ft. 6 in. wide by 4 ft. 2 in. deep, with wire wainscoting 6 ft. high on three sides. Repair and install three automatic gates; using your motor, controller and reversing switch and erect elevator ready for your wires and cut out switch, all in good working order. You to prepare hatchways and do other work same as specified for new elevator in this contract.”
    The day following the making of this contract, defendant telegraphed plaintiff canceling it. This suit is brought to recover damages for breach of contract. The court directed a verdict for the defendant, for the reason that the plaintiff, a foreign corporation, was doing business in Michigan contrary to Act No. 34 of the Public Acts of 1903, which forbids any foreign corporation to do business in Michigan “unless it shall first have filed and recorded in the office of the secretary of State a certified copy of its charter or articles of incorporation.” The defendant rested its case without producing any testimony.
    It appears from the evidence on the part of the plaintiff that it has a capital stock of $25,000; that it does not manufacture the motor and the controller, or the ornamental parts, or the cables or the leather belts, but buys them. It does its assembling and shipping in and from Toledo, and sends its elevator to the place ordered. It would have taken about two weeks to put in the elevator, and about a week to do the repair work. The men employed would have been a millwright and two helpers. Its manager further testified that plaintiff might hire labor in Detroit if it needed more than it could send from Toledo; that it had done so occasionally; and that it might be compelled to buy a few things in Detroit, such as nails, bolts, hinges, and lumber.
    “We were to do the repair work here in Detroit on the Gardner elevator. We were not connected with that elevator company. We were perfectly willing to make the changes in that elevator, whatever changes were necessary, not whatever they required. We should make such changes as were necessary. We were to do that work in Detroit and with the labor here. Also to make use of any stuff that they might have, and take back or buy of them or credit them for it.”

       As to what constitutes “doing business” ■within the State, by a foreign corporation, see note to Cone Export & Com. Co. v. Poole (S. C.), 34 L. R. A. 395.

   Grant, J.

(after stating the facts). In determining whether the contract sued upon described a business to be carried on within this State, and therefore within the prohibition of the statute, or whether it involved the business of interstate commerce, the contract must be construed as a whole. It is indivisible. Plaintiff agreed to install a new elevator, which, under its evidence, would require about two weeks to install after the elevator and the necessary appliances were shipped to Detroit. By the same contract it also agreed to repair another elevator, which would take about a week’s time. One price was made for the entire work.

If this contract were merely for the installation of a new elevator, plaintiff could urge with much reason that it was an act of interstate commerce, and did not fall within the cases of Hastings Industrial Co. v. Moran, 143 Mich. 679, and Pittsburgh Construction Co. v. Railroad Co., 154 Fed. 929, 83 C. C. A. 501 (11 L. R. A. [N. S.] 1145), but within Milan Milling Co. v. Gorten, 93 Tenn. 590 (26 L. R. A. 135), and other similar cases. But repairs to buildings and machinery are in no sense interstate commerce. That part of the contract was to be performed wholly in Michigan. It can make no difference whether in doing such business the contractor hires his help in the State or from without, or whether he buys what articles he needs for repairs in the State or without. It is local business, and corporations who undertake such work, even in a single transaction, come within the prohibition of the statute. See Rough v. JBreitung, 117 Mich. 48.

Judgment affirmed.

Blair, C. J., and Montgomery, Moore, and Mc-Alvay, JJ., concurred.


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    HARRIS v. BOW.
    Wills — Construction—Presumptions—Remedy at Law.
    A bill in equity filed more than 30 years after the testator’s death will not lie for a construction of the will, in the absence of allegations that the estate was not closed by the executors, that there are creditors, or that there is personal property to be distributed; the presumption being that the probate court and the executors performed their respective duties. And where it appears that the only question involved is as to the ownership of real property, the bill will be dismissed, the parties having an adequate remedy at law.
    Appeal from St. Clair; Law, J.
    Submitted January 21, 1909.
    ( Docket No. 16.)
    Decided March 16, 1909. .
    Bill by Edward W. Harris, administrator de bonis non with the will annexed, of the estate of Samuel Dunbar, deceased, against Frances Bow, Wealthy Sherman, Margaret D. Parkhurst, Marietta D. Annis, George B. Tunningly and Jeanetta L. Tunningly for a construction of said will. From an order overruling a demurrer to the bill, defendants Tunningly appeal.
    Reversed, and bill dismissed.

      Thomas Wellman, for complainant.

      Joseph Walsh, for appellants.
    From a decree overruling a demurrer to the bill filed in this case, the defendants Tunningly appeal. The bill-sets forth that one Samuel Dunbar died testate in 1877, leaving surviving as his heirs at law three daughters and two grandchildren, the daughters of a deceased son. These two grandchildren are the defendants Parkhurst and Annis. The daughters were then unmarried and were named, respectively, Elizabeth, Sybil, and Mary. He died seised of 40 acres of land occupied as his homestead. His will, after providing for payment of his debts and funeral expenses, reads as follows:
    “ The remainder of my personal estate and all my real estate of which I shall die possessed, I give and bequeath to my three daughters, named as follows, ¡Elizabeth Elyshel, Sybil Matilda and Mary Adeline, as follows, to wit: Each of my said daughters above mentioned shall have the right to use and occupy all my estate, both real and personal, share and share alike, so long as they all shall remain single and unmarried. But in case either of my daughters shall marry, then from and after the time of said marriage or marriages, said daughter or daughters so married shall not be entitled to have any further right to use or occupy any of my estate, either personal or real, so long as my remaining daughter or daughters shall live or remain single.
    “But in case all my daughters above named shall marry, then and in such case, at and immediately after the marriage of my last living or single daughter, then and in such case all my estate both real and personal shall be sold for the best price or prices that can be obtained for the same and divided equally between my three

      daughters above named, share and share alike, if they are all living at that time.
    “But in case either of my daughters above named should die before such division takes place, leaving heirs, then and in such case her heirs shall be entitled to their mother’s portion of said estate. At the marriage of my last single daughter, if it shall be agreeable to all then living, either of my daughters may purchase and buy out their sister’s right to said estate, if they can so agree, in preference to having said estate sold and equally divided as above described.”
    He named two executors. The will was duly admitted to probate December 24, 1877, and the executors named therein confirmed as executors.
    None of the daughters married, and all are deceased. His daughters occupied the premises so long as they lived. Elizabeth and Sybil died first. Mary died October 1,
    1906. On June 9th the same year she executed a warranty deed to the defendants Bow and Sherman. After this bill was filed Bow and Sherman conveyed to the defendants Tunningly. Complainant was appointed administrator de bonis non with the will annexed on January 21,

    1907, and filed this bill to obtain a construction of the will. The defendants Tunningly demurred on the ground that the remedy at law is complete and adequate, and that neither the complainant nor the estate of Mr. Dunbar has any interest in the real estate described in the bill.
   Grant, J.

(after stating the facts). The defendants Parkhurst and Annis, while nominal defendants, are really complainants, for in their answer they ask the same relief that the complainant asks by his bill. This suit is evidently instituted in their interest and an administrator appointed for that purpose. The bill does not allege that the estate was not closed by the executors named in the will, who have long since died. Presumptively the probate court and the executors did their duty and settled the estate. Presumptively there are no creditors. These presumptions follow after the lapse of 30 years, in the absence of any allegations in the bill to the contrary. The bill fails to allege that there is any personal property. It is filed for the sole purpose of determining who was entitled to the real estate described in the will. The question involved is purely a legal one, namely, In whom is the title in fee after the death of the three daughters ? The contest is between the two daughters of the deceased son and the grantees of Mary. There is no occasion for the appointment of an administrator, or for the filing of a bill in chancery to determine this question. All the questions raised are questions of law, and can readily be determined in an action of ejectment. The demurrer should have been sustained. Warren v. Warren, 151 Mich. 95.

Decree reversed, and decree entered in this court dismissing the bill of complaint, with the costs of both courts.

Blair, C. J., and Montgomery, Moore, and McAlyay, JJ., concurred.


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    GRANGER v. DARLING.
    1. Appeal and Error — Instructions—Prejudice.
    One alleging error upon an instruction to the jury must show that he was prejudiced.thereby.
    2. Witnesses — Examination—Leading Questions.
    Appellant cannot complain that the trial court erred in sustaining an objection to a question on the grounds that it was suggestive and leading, where he was given an opportunity to gain the information desired by further questions and did not take advantage of such offer.
    Error to Saginaw; Gage (William G.), J.
    Submitted January 21, 1909.
    (Docket No. 108.)
    Decided March 16, 1909.
    Case by Annie E. Granger against Harry Darling for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Beach, O’Keefe & Bockwith, for appellant.

      Snow & Snow, for appellee.
   Grant, J.

Plaintiff was calling at the house of the defendant on business. As she was upon the steps leading into the house, she was attacked and bitten by a dog, claimed to be the defendant’s. She brought suit against him and recovered a judgment for $500. Three errors are assigned.

1. The court instructed the jury as follows:

“And I will say right now that in every case, in determining the weight to be given to the testimony of the witnesses, if you are satisfied that any witness has testified falsely with regard to any material fact in the case, then you have a right to reject the testimony of that witness entirely, unless it is supported by other evidence in the case; but you have a right to give it such weight as you think it is entitled to, notwithstanding you are satisfied that the witness has testified falsely in some respect.”

It is urged that the instruction is erroneous, in that it fails to state to the jury that the rule given them only applies where the witness has knowingly, wilfully, or intentionally testified falsely, and cites many cases claiming to sustain the proposition. No requests were made by either party. Counsel for neither party called the attention of the court to the point now raised. Counsel for the plaintiff cite several authorities where the language of the charge has been used and approved. Whitaker v. Engle, 111 Mich. 205; Fraser v. Haggerty, 86 Mich. 521; Cole v. Railway Co., 95 Mich. 77. An examination of these cases shows that this question was not there raised.

We do not think, however, that the defendant is in position to take advantage of this alleged error. He has not shown that he was prejudiced by it. One alleging error must show that he was prejudiced by the erroneous ruling. Louden v. East Saginaw, 41 Mich. 18; Richards v. Tozer, 27 Mich. 451. Defendant has not shown that this ruling affected either of his witnesses. The instruction was evidently aimed at the plaintiff, who, upon the trial, identified a dog produced in court as the dog that bit her, but which was conclusively shown not to be the defendant’s dog. Aside from this, there is no serious dispute upon any of the facts in the case. Defendant should have shown that this instruction applied to one or more of his witnesses. If it applied only to plaintiff, the instruction was to the advantage of the defendant.

2. It is claimed that plaintiff was permitted to testify to a conversation with Mrs. Darling not in the presence of the defendant. It is a sufficient reply to say that the judge excluded all of the conversation that was not in his presence. Furthermore, it is apparent from the defendant’s own testimony that he heard it all.

3, Defendant called a witness named Andrew Messick, and asked him: “Have you been paid for being a witness in this case more than the regular fee ? ” Counsel for plaintiff objected to the form of the question, in that it was suggestive and leading, and it did not appear that witness knew what the regular fee is. The court sustained the objection, and stated that defendant’s counsel could ask witness in any other form about what he had been paid, if he desired. Counsel did not take advantage of the offer. There was no error in the ruling.

Judgment affirmed.

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