text:
    Elizabeth C. Kearney v. Jonathan L. Clutton et al.

      Chattel mortgage— Warehouseman — Auctioneer—Conversion— Description of property — Judgment.
    1. Trover will not lie against a storage company for tlie value of goods stored with it by a mortgagor, and taken from its custody by the mortgagee, without its knowledge or consent, and converted to his own use.

      2. Where an auctioneer receives property, and sells it, and pays over the proceeds, less his commission, he is liable in trover to the real owner, although he has no knowledge of want of title in the party for whom he sells, and acts in good faith.
    3. Where in an action of trover against a mortgagee, a storage company with which the goods had been stored by the mortgagor, and an auctioneer who received the goods, sold them at mortgage sale, and turned over the proceeds to the mortgagee, the jury render a verdict for a certain sum against each defendant, and there is no testimony by which they can determine that each defendant converted a portion of the goods, it is not error for the court to send the jury back, with the instruction that there is no ground for a division of the verdict against the defendants.
    4. Where in an action of trover against a mortgagee, and an auctioneer who sold the goods on foreclosure, it appears beyond contradiction that a portion, of the goods sued for were not covered by the mortgage, it is not error to refuse to submit to the jury, at the request of the defendants, the question whether the auctioneer sold goods to an amount exceeding the mortgage debt.
    5. Where mortgaged goods are described in the mortgage as “all household and personal effects,” and said general description is followed by a specific and minute description of the goods, the latter description limits the former to the property particularly described.
    6. Where, in trover for chattel-mortgaged property wrongfully converted by the mortgagee, it appears that only a portion of the sum purporting to be secured by the mortgage was received by the mortgagor, and that on an attempted settlement she received a certain sum, and that a portion of the goods sued for were not covered by the mortgage, the mortgagor should have judgment for the value of the mortgaged property, less the amount of money so received," and also for the full value of the goods not mortgaged.
    Error to "Wayne. (Hosmer, J.)
    Submitted on briefs April 17, 1894.
    Decided June 16, 1894.

      Trover. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      Corliss, Andrus & Leete, W. F. Atkinson, and Ronald Kelly, for appellants.

      Edward 8. Grece (George E. Penniman, of counsel), for plaintiff.
   Grant, J.

This is an action of trover for the conversion of certain household and personal goods. Plaintiff and her husband, on April 24, 1890, executed a chattel mortgage to one Cromwell Clutton, to secure the payment of an expressed consideration of $135. Shortly afterwards Mr. Kearney died. After his death, Mrs. Kearney executed to another person a second mortgage upon the goods, for the sum of $200. She broke up housekeeping, and stored the goods with the defendants Grace, who carried on a storage and cartage business, under the name of the Fidelity Storage Company. Cromwell Clutton, it appears, lived in Dakota, and defendant Jonathan L. Clutton made the loan, and took the mortgage in his name. Jonathan L. Clutton carried on the business in his brother’s name, and had an interest in it, Jonathan L., learning that the goods had been removed from the plaintiff’s house, requested an interview with the plaintiff. She informed him where the goods were stored, and claims that she then made an agreement with him that proceedings to foreclose the mortgage should be postponed until she had obtained some life insurance which she claimed to be due on a policy upon her husband’s life. Defendant Olutton denied this conversation, and testified that plaintiff then informed him that she could not redeem the property. The mortgage was then past due. The defendant Olutton then, in the name of his brother,_ brought an action of replevin in justice’s court against the defendants Grace to recover the property. The writ of replevin was placed in the hands of one William II. Guyott, a constable, for service. He made due return to the writ that he had replevied the goods, and delivered them to the plaintiff, and had made personal service of the writ upon the defendants Grace. The goods were not removed by the constable from the storehouse of the Graces, hut, on the day following, defendant Olutton caused them to „ be removed to the auction room of the defendant Jerome, where, after notice of sale, they were sold by Jerome, who realized upon the sale $82, which he paid over to Clutton, after deducting his commission. A few days after, plaintiff learned of the above proceedings, and related the transaction to some of her friends, who went to Olutton, and exacted from him $65, which he claims was a settlement of the entire transaction, and which was paid over to the plaintiff. She insisted that she did not authorize this settlement, and shortly afterwards instituted this action. She recovered verdict and judgment for $800. The jury returned'' a verdict of $500 against defendant Clutton, $150 against the defendants Grace, and $150 against Jerome. This verdict was objected to by the plaintiff, and, under the instruction of the court, the jury retired, and brought in a verdict for the whole amount against all the defendants jointly.

The verdict and judgment against the defendants Grace cannot be sustained. There is no evidence connecting them with any conversion. The second count in the declaration alleges a conspiracy between the defendants to defraud the plaintiff. There is no evidence tending to show that the defendants Grace had any knowledge of the replevin suit, or of the sale of the goods. The constable, a witness for plaintiff, flatly contradicts his return to the writ, by testifying that he did not take the goods under his writ; that he never saw them; that he made no service upon either of the defendants Grace; that Clutton told him not to take the goods, but to leave them there; and that the only service he made was upon their bookkeeper. If the bookkeeper had handed this writ to his employers, or if it had been properly served upon them, being a valid writ, it would have operated as a complete defense to any action against them. Nor can they be held for conversion from the fact that they did not notify the plaintiff that the goods had been so seized. But, as already shown, plaintiff failed to bring any knowledge of the transaction home to them. If there was any evidence of collusion and conspiracy, it was between Clutton, the constable, and the bookkeeper, the only parties shown to have had any connection with the replevin suit.

In regard to the liability of defendant Jerome, a more difficult question is presented. There is no evidence that he acted in had faith or in collusion with Clutton. Clutton took the goods to his auction rooms, to be sold by him as agent and auctioneer, under the foreclosure sale, a copy of which was posted in Jerome’s window. It is argued on behalf of plaintiff that Jerome is liable, though acting in good faith, if the taking by Clutton was tortious. It is sought to place Jerome in the position of an officer who seizes and sells property under a writ. An officer acting under his w-rit is liable beyond question when he seizes property under a void execution, or the property of a stranger under a valid execution. The law considers such officer as the moving party. He is the only one authorized to make a levy and sale. He acts at his peril. Counsel cite Cooley, Torts, 451:

One who buys property must, at his peril, ascertain the ownership; and, if he buys of one who has no authority to sell, his taking possession, in denial of the owner’s right, is a conversion. The vendor is equally liable, whether he sells the property as his own or as officer or agent; and so is the party for whom he acts, if he assists in or advises the sale.”

The learned author cites the following authorities in support of the text: Billiter v. Young, 6 El. & Bl. 1; Cooper v. Chitty, 1 Burrow, 23; Garland v. Carlisle, 4 Clark & F. 693; Moore v. Eldred, 42 Vt. 13; Calkins v. Lockwood, 17 Conn. 154; Smith v. Colby, 67 Me. 169.

An examination of these authorities discloses that none of them involve the liability of an agent or auctioneer who merely sells the property for another when brought to him for that purpose.

In Billiter v. Young the defendant was not the sheriff, but plaintiff in the execution under which the sheriff, by his direction, seized and sold the property, the title to which had passed from the defendant in the execution.

In Cooper v. Chitty the sheriff, who had seized goods under similar circumstances, was held liable, the title having passed, by an assignment in bankruptcy, out of the debtor to the assignee, before levy and sale.

In Garland v. Carlisle, decided by the house of lords in 1837, there is an able discussion of the liability of a sheriff who, levied upon the goods of a bankrupt. The sheriff was held liable, the court appearing to base their judgment upon the fact that the property seized was in the custody and power of the sheriff, and could not be disposed of by an agreement Lof the parties to the suit without the permission of the sheriff.

In Moore v. Eldred the defendant was held liable because he had co-operated with the purchaser of the property with the intent to deprive the plaintiffs, the rightful owners, of it.

In Calkins v. Lockwood the defendant was held liable because he acted for the other defendants as their officer in their service, and because, by their direction, he removed and retained the property.

In Smith v. Colby the defendant, the superintendent of :a poorhouse, under the direction of the selectmen of the town, removed and carried away a fence upon the plaintiff’s land, and refused, upon demand, to return it. He was held in trover, and correctly so, because he alone removed the property.

The above are all the authorities cited in behalf of the plaintiff. No authorities have been cited by either party bearing upon the question. The authorities are not uniform, but the clear weight of authority holds that where an auctioneer receives and takes the property into his possession, and sells it, paying over the proceeds, less his commission, he is liable, although he has no knowledge of want of title in the party for whom he sells, and acts in good faith. Hoffman v. Carow, 22 Wend. 285; Coles v. Clark, 3 Cush. 399; Cochrane v. Rymill, 40 Law T. (N. S.) 744; Ganly v. Ledwidge, 10 Ir. Com. Law, 33. See, also, Koch v. Branch, 44 Mo. 542; Hollins v. Fowler, L. R. 7 H. L. 757. To the contrary are Rogers v. Huie, 2 Cal. 571; Frizzell v. Rundle, 88 Tenn. 396. See, also, Ashe v. Livingston, 2 Bay, 80; Greenway v. Fisher, 1 Car. & P. 190. Where an agent in good faith sold stolen •coupons of United States bonds, and paid the proceeds over to the thief, he was held not liable in an action for their conversion. Spooner v. Holmes, 102 Mass. 503. The court distinguish between that case and Coles v. Clark, upon the ground that the coupons were negotiable promises for the payment of money, and that the rule of caveat emptor did not apply. The auctioneer may protect himself by requiring indemnity, and we think the rule holding him liable is supported by the better reason.

We think the court committed no error in sending the jury back, and instructing them that there was no. ground for a division of the verdict against defendants. They were either jointly liable, or there was no liability as against the defendants Grace and Jerome.’ There was no testimony by which the jury could determine that each defendant converted a portion of the goods.

Defendants’ attorneys asked that the following question be submitted to the jury, viz.: Did Jeróme sell more than $135 worth of goods?” which the court refused. We think this refusal was correct, because it appeared beyond contradiction that goods were seized and sold which were not covered by the chattel mortgage. The property was described in the mortgage as all household and personal effects,” which expression was followed by a specific and minute description of the property. This minute description limited the expression i<’all household and personal effects” to the property described, and excluded other property. Dresses and other articles of plaintiff’s wardrobe, the family Bible, the family pictures, and other things which were not covered by the mortgage were seized and sold. As to these, she was entitled to-recover, regardless of the mortgage.

In the event of a new trial, it is proper to say that the statement of counsel for the plaintiff, in the presence-of the jury, that he proposed to show that the chattel mortgage was obtained by fraud, that it was folded so as to look like a single paper, and that plaintiff thought it was a note, and not a mortgage, and other similar statements, were unjustifiable, from the fact that no testimony was offered in support of such statements.

Testimony was offered by the plaintiff showing that only $65 was in fact obtained upon the chattel mortgage, and that one payment' had been made. The defendant Glutton's mortgage was good for the amount actually advanced and still due. The jury should have been instructed that, if they found the transaction to be as claimed by the plaintiff, she was entitled to judgment for tbe value of the goods mortgaged, less the amount of the mortgage and the $65 which she had received in the supposed settlement, and for the full value of the goods not mortgaged.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    Thomas Dolahanty v. Patrick Lucey.

      Trespass — Title to lands — Pleading—Costs.
    1. Chapter 272, How. Stat., which provides for the recovery of treble damages in actions for trespasses on lands, and which contains no provision as to costa, must be construed in connection with How. Stat. §§ 6890-6893, 6897, which provide that, in every action in justice’s court where the title to land shall in any wise come in question, the defendant may give notice thereof under his plea of the general issue, and, upon filing the required bond, the justice shall certify the case to the circuit court for trial, and, if plaintiff recovers judgment, he shall recover double costs, and if defendant recovers judgment, other than that of nonsuit, and the presiding judge shall certify that the title to land did not come in question, the defendant shall not recover costs, but shall pay costs to the plaintiff.
    2. Where, in an action of trespass in justice’s court, the declaration charges that the defendant, with force and arms, and contrary to the provisions of section 1, chap. 272, How. Stat., entitled “Trespasses on Lands,” did cut down and carry off, without and against the leave of the plaintiff, the owner and occupant in possession thereof, divers trees (describing them) then and there being and standing upon the land of the plaintiff (describing it), by means whereof plaintiff has lost and been deprived of said trees, and said lands and premises of the plaintiff have been greatly injured and depreciated in value, whereby the said defendant has, by force of said statute, forfeited three times the amount of damages sustained by the plaintiff, and the case is certified to the circuit court for trial upon a plea of title, and on the trial the real point in controversy is whether or not the plaintiff gave permission to the defendant to enter upon the land and cut the trees, which issue is found and a verdict rendered in favor of the defendant, the title to land does not come in question, and the court is justified in so certifying.
    Error to Genesee. (Newton, J.)
    Submitted on briefs April 24, 1894.
    Decided June 16, 1894.
    Trespass. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Black & Brown, for appellant.

      George E. Taylor and Ransom 0. Johnson, for plaintiff.
   Long, J.

This action was commenced in justice's court. The declaration charges that the defendant, with force and arms, and contrary to the provisions of section 1, chap. 272, How. Stat., entitled Trespasses on Lands," did cut down and carry off, without and against the leave of the plaintiff, the owner and occupant in possession thereof, divers trees (describing them) then and there being and standing upon the land of the said plaintiff (describing it), whereby plaintiff has lost and been deprived of said trees. It is further alleged that the said premises have been greatly injured and depreciated in value, and that by reason of the acts complained of the defendant has forfeited three times the damages by the plaintiff sustained. Defendant pleaded title, and the cause was certified to the circuit court for trial.

On the trial the plaintiff’s testimony showed that he occupied the E. of the E. of the S. E. of section 17, of the township of Gaines, and had occupied it for 12 years, and that his brother had occupied it for 6 years before that time; that the defendant owned the 40 acres on the north; that the two places were divided by a line fence; and that the trees cut were on the plaintiff’s side of this fence, which was built in 1875. The defendant admitted on the trial that he cut the trees in question on the plaintiff’s side of the fence, but claimed that he obtained plaintiff’s permission to cut them to fix the line fence. There was one large oak tree, which stood on plaintiff’s side of the fence, which defendant cut; but defendant says, “As the old fence set, if the line had been drawn through the center of the fence, this oak tree would have been on my side.” Plaintiff contended that he gave defendant permission to cut. only dead trees, and that he cut live ones. It appears that defendant claimed to have made a survey of the line prior to the time he out the trees, and that the true line was over some distance on plaintiff’s land, but he offered no competent evidence of the fact. This survey was made without the knowledge or consent of the plaintiff. It was sought to be shown by the defendant, by this survey, that this was the true line, but the court held that the plaintiff was not bound by this survey. The fence was moved over by defendant upon the newly-surveyed line after this suit was commenced. i

The court charged the jury (1) that if they found that defendant had leave from the plaintiff to enter, and cut the poles in question, he could not be held in this action in damages for cutting them; (2) that they must find that the timber was cut in a willful manner, and with bad design; (3) that the removal of the fence could not be considered to reduce or add to any damages, as it was moved after the commencement of the suit. On the part of the plaintiff the court charged:

“The law discourages the changing of long-established lines. The county surveyor cannot, by virtue of his office, make division lines between adjoining property-owners, and his action is not binding without the consent of the landowner. The acts of the defendant in making the survey were ex parte, and would not bind the plaintiff.
“Forcible disturbance of peaceable possession is a trespass, and an action therefor involves no question of title.”

The court, upon its own motion, charged the jury, substantially, that if the old fence was built in the spring of 1875 by the jalaintiff's grantor, and maintained thereafter, continuously and uninterruptedly, by the plaintiff and his grantor, and they occupied the lands up to said fence, and their occupation was open, plain, notorious, and adverse to every other person, and continued up to the time of the alleged trespass, which was more than 15 years from the time the. fence was built, that would give the plaintiff title to the lands. The court further charged the jury that if the defendant, without leave or permission of the plaintiff, entered upon these lands, and cut the timber, then plaintiff would be entitled to nominal damages for defendant's going upon the land, and also to the value of the trees taken; and that, if the plaintiff gave his consent to cut dead trees, that would not authorize the defendant to cut live timber.

Upon this charge the jury returned a verdict in favor of defendant. TJpon the finding of the jury the court directed that costs be awarded to the plaintiff. The court also entered a finding in the case certifying that the title to the lands did not come in question on the trial of the cause Defendant brings error, and claims that he should have been awarded the costs.

It is contended by his counsel:

That the action having been brought under section 1, chap. 272, How. Stat., for trespass, making a claim thereunder for treble damages, the court had no power to award costs to the plaintiff, for the title to land does come in question if title is set up by the pleadings. Counsel cite in support of this proposition McFarlane v. Ray, 14 Mich. 465; Rawson v. Finlay, 27 Id. 268; Achey v. Hull, 7 Id. 423. These cases do not seem to reach the questions in controversy here, nor do they determine the rights of the parties as to the costs, as the statute under which the action was commenced makes no provision as to costs. The statute must be read, however, in connection with other provisions of the statute regarding costs in cases where titles to lands come in question.

It is provided by How. Stat. §§ 6890-6893, that, in every action where the title to land shall in any wise come in question, the defendant may give notice thereof under the general issue upon the return-day or any adjourned day of such action; that such plea and notice shall be in writing, signed by the defendant or his attorney, and delivered to the justice; and that the justice shall, upon the filing of the required bond, certify the cause to the circuit court for trial.

By section 6897 it -is provided:

“If the judgment in such suit in the circuit or district court shall be for the plaintiff, he shall recover double costs; if it be for the defendant (other than judgment of nonsuit), and the presiding judge of the court before which the issue is tried shall certify that the title to lands did not come in question, the defendant shall not recover costs, but shall pay costs to the plaintiff.”

We think there can be no doubt that, though the action was commenced under chapter 272, yet the matter of costs is governed, in this class of cases, by the provisions of the section above quoted.

That the court was in error in certifying that the title to the lands did not come in question on the trial. We think this position cannot be maintained. The plaintiff declared upon his possessory rights to the lands from which the timber was taken. He did not set up title in fee in his declaration, but claimed possession of the premises, and that his possession had been invaded, and the timber taken away. The real point in controversy was* whether. the plaintiff had given permission to defendant to enter upon these lands and cut the trees, though the court instructed the jury, in the general charge, that if plaintiff’s possession had been notorious, open, continued, and adverse for more than 15 years, such possession ripened into a perfect title. Yet, even ujoon this charge, the jury found a verdict in favor of defendant; so that we are satisfied, upon defendant’s contention alone, that he had permission to cut the trees, the jury having.found in his favor. It is evident, therefore, that the title to the lands did not come in question, and the court was correct in so certifying. We think the case is governed by Newcombe v. Irwin, 55 Mich. 620.

Judgment is affirmed.

The other Justices concurred.


text:
    Stephen Baldwin v. George S. Hosmer, Circuit Judge of Wayne County.

      Mutual benefit associations — Reserve fund — Receiver—Distribution of assets — Comity—Estoppel—Contempt proceedings.

    The Supreme Sitting of the Order of the Iron Hall is a benefit association organized under the laws of the state of Indiana, and had local branches in the State of Michigan and in other states, which were subject to the authority and control of the main organization and its officers. The benefit fund was derived from assessments made from time to time by the Supreme Sitting upon the holders of benefit certificates, out of' which benefits were paid in case of the sickness, disability, or death of a member. These assessments were made through the local branches, and 80 per cent, of the same was sent to. the supreme cashier of the Supreme Sitting, and 20 per cent, of the amount received by each local branch on each assessment was set aside and retained as a reserve fund, which fund was declared by the laws of the order to be the property of the Supreme Sitting, and subject at all times to its control.. The corporation was adjudged insolvent by the Indiana court,, and a receiver was appointed of its assets both within and without that state, after which an ancillary receiver of its. assets in the State of Michigan was appointed by the circuit-court of Wayne county, in chancery, who, after duly qualifying, demanded from the proper officers of one of said local branches, located in the city of Detroit, all moneys and effects-in their hands belonging to the' Supreme Sitting. Upon their refusal to comply with said demand, contempt proceedings, were instituted in said Wayne circuit court, on the hearing of which the circuit judge refused to punish said officers for contempt in refusing to comply with said demand, it appearing on said hearing that garnishment proceedings were pending against said officers ancillary to a suit against said corporation. And, in refusing an application for a mandamus to compel the circuit judge to punish said officers for said alleged contempt, it is held:
    a — That an examination of the various provisions of the constitution and laws of the order convinces the Court that the title to the reserve fund retained by the local branches is in the Supreme Sitting; that the 20 per cent, of the assessment retained by each local branch differs from the 80 per cent, transmitted to the Supreme Sitting, mainly in this, that the possession and supervision, subject to such laws, remained with the local branches; that the whole fund is for the protection of, and payment of benefits to, holders of benefit certificates; and that the reserve fund seems to be essentially a part of the benefit fund, although it may be in the nature of a safety fund to insure the payment of maturing certificates; citing Buswell v. Supreme Sitting, 161 Mass. 224; Ware v. The Same, 28 Atl. Rep. 1041.
    b — That the local branches and their officers ai-e a part of the order, and cannot, in this proceeding, question its due incorporation; citing Bank v. Stone, 38 Mich. 779; Manufacturing Co. v. Stuart, 46 Id. 482; Nibl. Mut. Ben. Soc. § 2.
    c — That the Indiana receiver, and the petitioner as ancillary receiver in this State, not only represent the creditors of the corporation, but stand in its stead; that under the decree of the Indiana court, and of the circuit court of Wayne county in chancery, they are directed to gather in the corporate assets, and, unless some reason is shown why such order should not be carried out, the local branch in Detroit and its •officers and members cannot refuse to turn over the assets in its and their hands to the ancillary receiver; that, when ireceived by him, the Michigan court ma.y order them transmitted to the Indiana receiver, but that such order should be made only when it is made certain to the court that the members in this State will share proportionately with the other members throughout the organization; that the fund is found in many different states, and comity requires that the Court ishould do all it can to insure, as far as possible, a speedy distribution of the whole property among those entitled to it, but that the court below must have some discretion in making said order so that the rights of the citizens of this State may be protected.

      d — That an order for the payment of this fund to the receiver :shoulc| not be made until the questions arising under the .garnishment proceedings are determined; that the plaintiff in .that case has a right to his day in court before he can be •deprived of the fund, or before the local branch and its officers are bound to piay it over to the receiver; that he is not a party here, and his rights cannot be here litigated; that, if he ■obtained a valid lien on the fund, it was not dissolved by the filing of the bill and the appointment of a receiver, but may be enforced; and that proceedings for contempt are not appropriate for the trial of the issues involved.

    Mandamus.
    Argued April 24, 1894.
    Denied June 16, 1894.
    Relator applied for mandamus to compel the respondent to punish as for contempt certain officers of a Detroit branch of the Supreme Sitting of the Order of the Iron Hall in refusing to turn over to an ancillary receiver, appointed in this State, the assets in their hands belonging to said order. The facts are stated in the opinion.

      Oarlos K.- Warner, for relator.

      Charles A. Kent, for respondent.

       For somewhat conflicting action of the courts in respect to the recognition of the Indiana receiver of the Iron Hall Order, see the Massachusetts case of Buswell v. Supreme Sitting, 23 L. R. A. 846, and the Connecticut case of Fawcett v. The Same, 24 Id. 815.

   Long, J.

This is an application for a writ of mandamus to compel the respondent, who is one of the judges of the circuit court for the county of Wayne, to punish as for contempt certain persons who are officers of a local branch of the Order of the Iron Hall.

The petition alleges substantially that the Supreme Sitting of the Order of the Iron Hall is a corporation organized at the city of Indianapolis, Ind., in the month of July, 1881, under and pursuant to the provisions .of article 8, chap. 24, of the Revised Statutes of the State of Indiana; that, after its formation, it entered upon the business for which it was organized, and solicited memberships throughout the different states of the Union; that the business of the order was carried on by and through the instrumentalities of so-called “local” or “sisterhood” branches, which were responsible to the main organization, and which, as declared by their constitutions, were required to consist of not less than 15 .members, who should possess certain powers and privileges under the jurisdiction of the Supreme Sitting; that there were about 1,190 local branches established in the United States, and 9 ,in Canada, making a total membership exceeding 60,000 persons, including those in the benefit division and life division, all of whom were subject to the authority and control of the main organization and its officers, under the articles of association, constitution, laws, and regulations of the Supreme Sitting, and each of which said local branches has in its hands, accumulated as a reserve fund, a large amount of money, the amount in Detroit alone ranging from $300 to $14,000; that the Supreme Sitting continued to exist and carry on its business until about the 29th of July, 1892, when it became insolvent, and upon a bill filed in the superior court for Marion county, Ind., one James F. Failey was on the 23d day of August, 1892, appointed receiver of all the property and effects of every kind of the said Supreme Sitting of the Iron Hall, both within and without the state of Indiana, with full power to receive, demand, and collect in his own name, as receiver, from the defendant and all of its officers, agents,, branches, bankers, and any and all other persons, whether within or without said state, and to take, hold, and keep in his possession, under the direction of said court, all of said property, rights, credits, and effects, books, papers, and things, of any and every description, belonging to the defendant at the time of bringing such action on July 29, 1892, or since acquired,” and to do and perform all and singular the duties imposed upon him and required by law; that Mr. Failey duly qualified as such receiver, and entered upon the performance of his trust; that on the 2d of December, 1893, a final decree was entered in that court and cause, in which it was adjudged' that the said Supreme Sitting of the Order of the Iron Hall, at-the commencement of said action, was, and ever since had been, insolvent and unable further to carry on the business for which it was organized, and that its assets and property should be reduced to money, and paid and applied upon its debts and outstanding obligations; and Mr. Failey was continued and confirmed as permanent receiver of said order.

September 27, 1892, a bill of complaint was filed in the circuit court for the county of Wayne, in chancery, by one Lewis P. Durkee, in behalf of himself and all others interested who should choose to come in and be made parties, praying that a receiver be appointed in aid of and ancillary to the administration and receivership of all the property and effects of the defendant corporation appointed by the court in Indiana; and on the 1st of October, 1892, an order was entered in said Wayne circuit court, in chancery, appointing Stephen Baldwin, of Detroit, this State, as such ancillary receiver of all the property and effects of the order within the State of Michigan. Mr. Baldwin thereupon duly qualified, and entered upon the discharge of his trust, and such proceedings were thereafter had that on February 9, 1894, a final decree was entered in said Wayne circuit court, in chancery, in which it was declared that the defendant corporation, the Supreme Sitting of the Order of the Iron Hall, was on the 29th of July, 1892, and ever since had been, insolvent; that it was unable further to carry on the business for which it was organized within the State of Michigan and elsewhere; and that its assets and property should be reduced to money, and applied upon its debts and outstanding obligations and liabilities, — and in which decree Mr. Baldwin was further continued and .confirmed as ancillary permanent receiver of all such assets within the State of Michigan, with direction and authority, among other things, to take, hold, and convert into money, under the order and direction of the court, all the property, real, personal, and mixed, of every kind, belonging to said Supreme Sitting of the Order of the Iron Hall, with full power to demand, receive, and collect in his name as receiver or otherwise, as he might deem proper, from the defendant and all its agents, officers, branches, bankers, and any and all other persons within the State of Michigan, all such property and effects, and to take, hold, and keep in his possession, under the direction of the court, all such demands and effects, books, papers, property, and other things, of every description, belonging to the defendant corporation on July 29, 1892, or since acquired, and to do and perform all and singular the duties imposed upon him or required by law.

It is further alleged in the petition that the organization was effected and existed only under the laws of the state of Indiana, and that the branches of the order existed, not by independent authority of any state in which they were situated, but solely by the authority of the charter granted to them in pursuance of the constitution and laws of the order under which they were permitted and organized.

It is further shown that local or sisterhood branch No. 5, so called, was one branch of the Supreme Sitting of the order in the State of Michigan, and was organized as such under the rules, regulations, constitution, and laws of the Supreme Sitting; that, at the time of the filing of the bill in this cause, Peter J. Schiffer, Jr., was the chief justice of said branch, Fred. J. Kirts, accountant, John G-. Starling cashier, and George Leitch, Fred. Linsell, and Charles Hampshire trustees; that afterwards Fred. J. Kirts removed from the city of Detroit, and one Carlton H. Eoyce was appointed or elected his successor, and that Charles Hampshire died, and Charles L. Beck was after-wards appointed or elected his successor, as trustee; that, at the time of filing the bill in this case, the said chief justice, accountant, cashier, and.trustees had charge of the funds, property, and assets of the Supreme Sitting, which were collected and received through the instrumentality of said local or sisterhood branch No. 5, and that they then held in moneys, property, and securities of said order the sum of about $20,000, which was subject to the order and direction of the Supreme Sitting, and subject to the decree before mentioned; and that, at the time of filing this petition, the said officers and trustees held , the moneys in the possession of the branch, which sum was subject to the order and direction of the Supreme Sitting, and subject to said decree.

It is further alleged that the petitioner caused a copy of the order appointing him receiver in this State, and a copy of the final decree in the cause, to be served upon the officers and trustees of said branch No. 5, and also caused personal written demands to be made upon each and every of said officers and persons for all moneys, property, goods, chattels, and effects in their hands belonging to the Supreme Sitting; but that said officers and trustees refused to comply with such demands, and pay over the said moneys, property, and effects to the petitioner.

It appears that on March 12, 1894, the petitioner caused a petition to be filed in the Wayne circuit court, in chancery, praying that the officers of local branch No. 5 of said order might be ordered and required to show cause in said court why they should not be punished for contempt in neglecting and refusing to turn over to the petitioner such moneys, property, and effects in their hands and under their control, and that an attachment or other process might be issued requiring the persons named to comply with such order; and that, on said 12th day of March, that court entered an order requiring such persons to show cause on the 19th of March why they should not be punished for contempt, and why an attachment should not issue as prayed in the petition. On the 19th day of March, in response to the order, the officers and trustees of said local branch appeared and answered the petition. In their answer they say:

1. That they were not in any way parties to or bound by the proceedings by which Mr. Baldwin was appointed receiver ancillary to the receiver appointed by the court of Indiana; and, upon information, they assert that the appointment of Mr. Baldwin was made at the instance of the Indiana receiver, though, as he is not a party, he cannot be bound thereby, and for the purpose of taking all the funds belonging to branch No. 5, as well as those belonging to other branches, out of the State, and distributing them mainly among persons who have not contributed to them, and against the equitable rights of the members of branch No. 5, and that said appointment is unauthorized and void.

2. That the Order of the Iron Hall, and especially the Supreme Sitting thereof, was devised and conducted with the grossest fraud, and that this appears in the bill filed in the cause; and that, in consequence, any contract between said Supreme Sitting and the local branches is void, at the option of said branches. They aver further, on the advice of counsel, that, while said order claimed to be a corporation organized under the laws of Indiana, in fact there has not been and is not any law of Indiana under which said corporation could organize, and that the claim to be a corporation is a fraudulent scheme, devised to deceive and defraud the members of the local branches.

3. That all the funds in their hands have been contributed by the members of said local branch No. 5; that these moneys were contributed by each member under the belief that he would receive the benefits promised in the contract; and that, with the failure of the order, justice requires that these moneys should be returned to those who contributed them.

4. That, undei- the rules of the order, every local branch, in proportion to the number of its members, should have a fund nearly equal to that held by any other local branch; and that, if the funds in the possession of each branch be distributed among its members, justice will be better done than in any other way.

5. That if the money in question is to be sent to Indiana, and there distributed, the members of local branch No. 5 will be put to great expense in proving their claims in the Indiana court; that, as they are informed and believe, dividends have already been made by said Indiana receiver in which the members of said branch No. 5 will not be able to participate; and that the result will be that such members will receive a much smaller dividend than if the money be divided among those who have contributed it.

6. They admit that the fund in their hands or under their control is respectively as follows: Peter J. Schiffer, Jr., has nothing; Fred. J. Kirts has about §1,000; Carlton H. Boyce has nothing; John G. Starling, George Leitch, Frederick Linsell, and Charles L. Beck have in money and securities about the sum of §15,000.

7. The respondents Starling, Leitch, and Linsell, further answering, say that on or about August 23, 1892, they, with John T. Younghusband and Charles Hampshire, were served with a writ of garnishment issued out of the circuit court for Wayne county, in a cause therein pending in which Louis Cohen is plaintiff and the Supreme Sitting of the Iron Hall defendant; that they, as garnishee defendants, are enjoined from paying over any money or delivering any property or effects to said principal defendant until the further order of the court; that said cause is still pending and undetermined in said court; that said Charles Hampshire, named in said writ, is now dead, but that, at the time of the service of said writ, he was one of the trustees of branch No. 5; and that Beck, one of the respondents herein, was duly appointed as his successor.

The issues raised by these pleadings were referred by the court to a commissioner to take proofs, whereupon the parties entered into a stipulation as to the facts which they deemed material to the issues. The stipulation admits the organization of the defendant company, and also sets out the various provisions of the statutes of Indiana authorizing the formation of corporations which were in force at the time this corporation was organized. The court thereupon entered an order denying the relief asked, and refusing to adjudge the parties guilty of contempt.

It is now averred by the petition here that, under the pleadings and proofs so stipulated, it is shown that the officers and members of local branch No. 5 received their charter and rights from and under the Supreme Sitting, and that the property, money, and effects held by said branch belong to the Supreme Sitting; and it is prayed that a writ of mandamus issue to be directed to the Honorable George S. Hosmer, circuit judge, commanding him to show cause why he should not set aside and vacate the order denying the relief prayed,, and why he should not -proceed, in said court and cause, to compel the payment of said moneys now in the hands of such local branch to such ancillary receiver by the ordinary proceeding as for contempt, and why he should not enter an order in said court and cause adjudging the officers of said local branch in contempt of the authority of the court in neglecting and refusing to pay over said moneys.

An order to show cause was issued, and the circuit judge has made a return thereto substantially as follows:

1. That the order and decree appointing Stephen Baldwin as receiver of the assets 'Of the Supreme Sitting of the Order of the Iron Hall, and the order that the local branches turn over their assets to said receiver, were granted in a suit in which none of said local branches or their trustees or other officers were made parties; that said order and decree were made without opposition or discussion, and by the consent of all the parties represented.

2. That when the answer of Peter J. Schiller, Jr., and others, officers of branch No. 5, was filed in the contempt proceeding instituted by said receiver, it became evident that several serious questions of law were involved, some of which are as follows:

a — Whether or not there was any law of Indiana authorizing the formation of the corporation of the Supreme Sitting of the Order of the Iron Hall.

b — Whether or not the bill does not show that the organization of such association was so fraudulent as to release all the branches from their obligations or contracts entered into with said Supreme Sitting.

c — Whether or not, on the dissolution of said Supreme Sitting, from whatever cause, equity does not require that the moneys in the hands of the local branches be distributed among the persons who have contributed the same, the purposes of such contribution having wholly failed.

d — Whether or not a court of equity in this State will not protect the persons equitably entitled to the funds held by the local branches of this State by a division here, instead of compelling them to prove their claims before the court of Indiana, and taking such dividends as may be there ordered.

e — Whether or not the different local branches have such connection as renders the appointment of one receiver for all proper.

f — Whether or not it is proper for a court of equity to appoint in this State a receiver ancillary to the Indiana receiver.

g — Whether or not, under the averments of the bill to the effect that all the assets of said Supreme Sitting have, been assigned to said Failey, by the voluntary assignment of said Supreme Sitting, any receiver should be appointed of such assets, and whether such appointment is not, for this cause alone, void.

That this respondent is of the opinion that it is not proper that said questions should be decided on application to punish for contempt; that, in his opinion, when persons who are not jiarties to a suit in which a receiver is appointed make a bona fide claim to property claimed by the receiver, the dispute should be decided in a regular suit brought by the receiver against the parties making the claim, and he submits that this rule is laid down by the authorities, citing Ex parte Hollis, 59 Cal. 405; In re Paschal, 10 Wall. 483; Beach, Rec. § 247; State v. Ball, 5 Wash. 387.

For these reasons, the respondent refused to punish the officers and agents of local branch No. 5 for not turning over their funds to the receiver; but, at the same time, the court offered the attorney for the receiver, and who has appeared in said proceeding for him, an order permitting the receiver to sue the officers and agents of the local branch, and this offer was refused.

There is returned into this Court, as a part of the case, a copy of the decree made by the Indiana court appointing Mr. Failey receiver, and defining his powers and duties, the constitution and by-laws of the Supreme Sitting of the order, a copy of the bill filed by Mr. Durkee, and the decree made by the Wayne circuit court appointing Mr. Baldwin ancillary receiver, and defining his powers and duties.

It appears from the decree of the Indiana court that the corporation was organized under the Indiana statutes. Whether such organization was authorized by those statutes does not seem to have been raised by the Indiana court, or, if so, the proceedings before us do not disclose the fact. That court proceeded to authorize the winding up of the concern and the collection of the assets, and, for that purpose, directed the receiver to collect from the local branches and others, whether within or without the state of Indiana, the property and assets of the corporation. Upon the appointment of the ancillary receiver within this State, he was authorized to receive and collect the assets within this State; but it is nowhere provided in the decree that the moneys shall be transmitted by the ancillary receiver to the receiver at Indianapolis, but that he shall report to the court his doings in the matter, to the end that the court may make such further order in the premises as justice and equity may require.

By the articles of association and the laws of the order, these local branches are made subordinate to the Supreme Sitting. All their powers and duties are set forth therein, and they exist only by authority of the law of the Supreme Sitting. The moneys now held by the officers of local branch No. 5 were collected by and under the authority thus conferred. The constitution and laws of the order provide for the raising of these funds. Section 1, law 1, is as follows:

“ There shall be attached to this order a benefit fund in which members may participate (except social members) as they may severally elect, either in the sum of $1,000, $800, $‘§00, $100, or $200, on which they shall pay the rates and be entitled to the benefits prescribed in the following table,” etc.

One of the objects of the organization, as stated in article 2, § 3, of the constitution, is as follows:

‘'To establish a benefit- fund from which those who have held membership in the order for 30 days or more may, should they so desire, on proper application, and complying with all tjhe rules and regulations governing said benefit fund, become participants therein, and may receive the benefit of a sum not exceeding $25 per week, nor more than one-half of the amount of the benefit certificate held by each member, when, by reason of disease or accident, they become totally disabled from following any avocation; or in case of death, if a member for more than two years, one-half of the amount of the benefit certificate will be paid, less benefit received, or an amount of not more than $1,000 when they have held a continuous membership in the order for seven years:
“Provided, however, that the sum total drawn from this order by any of its members shall never exceed in sick, disability, death, and final benefits the sum named in the benefit certificate.”

This benefit fund was derived from assessments upon the holders of benefit certificates, which assessments were made by the Supreme Sitting of the order from time to time, and out of which benefits were paid in ease of the sickness, disability, or death of a member. The assessments were made through the local branches, and 80 per cent, thereof was sent to the supreme cashier of the Supreme Sitting. Law 2, § 1, is as follows:

'* Twenty per cent, of the amount received by each branch on each assessment shall be set aside and retained as a reserve fund, which fund is the property of the Supreme Sitting, and shall be subject to its control at all times, as hereinafter provided. At the expiration of the first term of six years and six months from the date of the organization of the order, one-seventh of the reserve fund then on hand shall be called for by the supreme accountant, and used by the supreme cashier in the payment of benefits; and annually thereafter one-sevénth of the reserve fund on hand shall be called for and used in like manner, unless otherwise ordered by the Supreme Sitting.”

An examination of tbe,various provisions of tbe constitution and laws of the order convinces us that the legal title to this reserve fund is in the Supreme Sitting of the order, and not in the different local branches; that the 20 per cent, of the assessment retained by each local branch differs from the 80 per cent, transmitted to the Supreme Sitting, mainly in this: that the possession and supervision subject to such laws remains with the local branches. The whole fund is for the protection of, and payment of benefits to, holders of benefit certificates; and the reserve fund seems to us essentially a part of the benefit fund, although it may be in the nature of a safety fund to insure the payment of maturing certificates.

This question has lately been before the court of last resort in Massachusetts, in the case of Buswett v. Supreme Sitting, 161 Mass. 224. There it was held that the funds held by the local branches of the order belonged to the Supreme Sitting, and we think there can be no escape from such conclusion. In a late case in equity, brought in New Jersey, the vice chancellor held the same rule, and determined that the fund belonged to the home company. Ware v. Supreme Sitting, 28 Atl. Rep. 1041. Several of the states, through their courts of last resort, have passed upon this question, and, so far as we have found, have not held to the contrary.

It is said, however, that there was no legal incorporation in Indiana. We are not called to pass upon that question. The courts of Indiana have permitted the proceedings to be brought there to wind up the affairs of the order as a valid and subsisting corporation, and have recognized its legal status. The several courts of other states have also taken jurisdiction by the appointment of ancillary receivers to aid in collecting the funds to be transmitted to the home receiver. But we think the parties here are not in a -position to raise that question-These local branches and their officers are a part oí the order, and cannot, in this proceeding, question its due incorporation. Merchants’, etc., Bank v. Stone, 38 Mich. 779; Empire Manfg. Co. v. Stuart, 46 Id. 482; Nibl. Mut. Ben. Soc. § 2.

The object of the association was to create what is called a benefit fund.” The constitution and laws of the order was the contract between the parties. Courts can only enforce the contract, as made, which is that the fund shall belong to the Supreme Sitting, and be distributed so that each member shall derive a benefit from the entire corpus •of the assets of the Supreme Sitting, without regard to its local habitation. It was for the purpose of collecting in these assets in this State that the ancillary receiver was appointed. There can be no doubt of the right of a court of chancery within this State to make'the appointment. Mr. Baldwin was so appointed, and is attempting to gather in these assets. These are trust funds for creditors and for distributees under the laws of the order. It is a principle now generally acted upon by the courts that a receiver or other trustee appointed in another state will be permitted, on the principle of comity, to bring an action in the domestic forum for the purpose of collecting the assets of the insolvent for distribution, in accordance with the laws of the jurisdiction within which the receiver has been appointed, when so to do will not contravene the rights of citizens of the state in which the action is brought. Metzner v. Bauer, 98 Ind. 425; Bagby v. Railroad Co., 86 Penn. St. 291; Trust Co. v. Railroad Co., 123 N. Y. 37; Comstock v. Frederickson, 51 Minn. 350; Graydon v. Church, 7 Mich. 36. But the rule of comity is never allowed to operate when it will contravene .the rights of a citizen of the state where the action is being taken. So far as this local branch and its officers and members are concerned, however, they are part and parcel of the corporation. The receiver appointed in Indiana and the ancillary receiver appointed here not only represent the creditors of the corporation, but stand in its stead; and under the decree of the Indiana court and of the Wayne circuit court, in chancery, in this State, they are directed to gather in the assets. Unless some reason is shown why that order should not be carried out, this local branch and its officers and members cannot refhse to turn over the assets to the ancillary receiver; and, when he has possession of such assets, the court may order them transmitted to the Indiana receiver. But such order should be made only when it is made certain to the court that the members from this State will share proportionately with the other members throughout the organization. The fund is found in many different states, and comity requires that we should do all we can to insure, as far as possible, a speedy distribution of the whole property among, those entitled to it. But the court below must have some discretion in making this order so that the rights of the citizens of this State may be protected.

By the' answer of the local branch and its officers, it appears that the fund has been garnished in their hands, and that such proceedings are still pending and undetermined. Certainly, the court would not make an order for the payment of this fund into the hands of the receiver until the questions arising under the garnishment proceedings are determined. The plaintiff in that case has a right to hi-s day in court before he can be deprived of the fund, or before the local branch and its officers are bound to pay it over to the receiver. The plaintiff in the garnishment proceedings is not a party here, and his rights cannot be here litigated. If he has obtained a valid lien on the fund, that lien is not dissolved by the filing of a bill and the appointment of a receiver, but may be enforced. Hubbard v. Bank, 7 Metc. 340; Taylor v. Insurance Co., 14 Allen, 353; Folger v. Insurance Co., 99 Mass. 267. Proceedings for contempt are not appropriate for the trial of issues involving the title to this fund, or to determine the validity of the lien which the garnishee claims. Ex parte Hollis, 59 Cal. 405; In re Paschal, 10 Wall. 483; State v. Ball, 5 Wash. 387. In Beach on Receivers (section 247) it is said:

“It is also equally well settled that, in a proceeding to-punish for contempt of court, the question of the title to the property cannot arise or be adjudicated. The court will not in such a proceeding do more than pass upon the. bare question of contempt. It will not directly or indirectly assume to consider or to decide to whom the property belongs, or to decide that the receiver has or has not the-right of possession in and to it.”

The court below offered to permit the receiver to bring suit for these assets, which offer was declined. We think the court, under the facts stated in the answer of the local branch and its officers, properly refused to adjudge the-parties guilty of contempt. We may remark, however, that,, if the assets are finally paid into the hands of the receiver,, it will be the duty of the court to direct that, upon their ¡Dayment over to the Indiana receiver, the Michigan claimants shall receive a proportionate dividend with creditors, elsewhere.

The writ will be denied.

The other Justices concurred.


author: Hooker, J.

text:
    Charles L. Webb v. The Leominster Shirt Company.

      Sale — Contract—Construction—Abuse of process — Nero trial.

    1. Where a judgment in favor of the plaintiff in an attachment suit against a non-resident defendant is reversed, and it appears that the plaintiff cannot recover under his declaration, and that 'jurisdiction was obtained by an abuse of the process of the court from which it issued, a new trial will not be ordered.
    3. A clothing merchant received from a manufacturer of shirts a sample, with a quotation of the price per dozen at which the shirts could be furnished, and wrote the manufacturer, acknowledging the receipt of the sample, which he pronounced O. K., and, after referring to a list of sizes which he had previously sent to the manufacturer, directed it to make up 104 dozen of the shirts- as soon as possible, to let him know at once how •soon the order could be filled, to ship by fast freight, and to draw a sight draft on him at a designated bank in the city where he resided. Two days later the manufacturer wrote the merchant, acknowledging the receipt of the order, and stated that it had the scale of sizes referred to, and would at once go to w’ork on the order, which would be ready to ship in 30 ■days, or as soon as the manufacturer could get it out. And it is held that the letters constituted a complete and perfect contract for the manufacture and shipment of the number of ¡shirts ordered as soon as possible, and that the merchant had no legal right to cancel the arrangement without the consent ■of the manufacturer.
    Error to Muskegon. (Dickerman, J.)
    Argued April 24, 1894.
    Decided June 16, 1894.

      Assumpsit. Defendant brings error.
    Keversed, and no new trial ordered, and judgment entered for defendant for ■costs of both courts.
    The facts are stated in the opinion, .and in the head-notes.

      W. JS. Hoyt, for appellant.

      Nelson DeLong, for plaintiff.
   Hooker, J.

The plaintiff was a dealer in clothing at Muskegon, and defendant was a manufacturer of shirts at Leominster, Mass. A contract was made by which the latter was to make and ship to the former 104 dozen shirts, like a sample provided, at 14.85 per dozen. This contract was made by correspondence, and rests wholly in the letters and telegrams of the parties. Plaintiff contends that by its terms the defendant undertook to ship the shirts on or before April 20. The court left the construction of the contract to the jury, who found that such was the undertaking. Defendant assigns error upon this, insisting that the court should have construed the contract, and directed a verdict for defendant.

Plaintiff’s letter of March 11 ordered 104 dozen shirts as soon as possible, and asked how soon the order could be filled, as he wanted to know how to take orders. Defendant’s reply was dated March 13, saying that the order was received, that it would go to work upon the order at once, and be ready to ship in 30 days, or as soon as it could get the shirts out. The same day (March 13), plaintiff telegraphed to defendant to “stop manufacture of shirts until you get letter,” and on March 15 he wrote canceling his order for 104 dozen shirts, “on account of other business relations, for the present at least.” On March 16 he telegraphed to defendant to manufacture shirts as ordered.

The letters of March 11 and 13 constituted a complete and perfect contract for the manufacture and shipment of 104 dozen shirts as soon as possible. The statement of defendant that it would ship in 30 days, or as soon as it could get them out, forbids the understanding that it agreed to ship within 30 days, or at any specified date. The plaintiff had no legal right to cancel this arrangement without defendant’s consent. There is nothing to show that it did consent, and before the cancellation, which was, by letter, reached the defendant, the plaintiff had again telegraphed to continue the manufacture of the shirts as ordered. He followed this by an apologetic' letter of March 16, in which he gives as a reason for the telegram of March 13 and the letter of the 15th that Minneapolis parties had told him it would take from two to three months to fill an order for 104 dozen, and he could not wait that long, but, on receipt of letter that defendant would ship within 30 days or less, he was satisfied, and desired the goods as ordered. He added that he hoped defendant would accept this as final, and proceed. On the 19th the defendant wrote that it had received the telegram of the 16 th, and would continue the manufacture of the shirts. On the 25th plaintiff wrote again, requesting defendant not to start on the shirts, if it had not done so, until it heard from him again, and on March 27 defendant wrote that it had countermanded the order for the shirts. On March 27 plaintiff telegrajDhed defendant to proceed with the shirts, and on the same day he wrote, saying that in his letter of March 25 he had asked defendant to wait with the shirts, as he had a matter of great importance to look after, but, as “those matters” had been disposed of, he could devote his whole time to the shirts, and that, had he known that they could have been disposed of so readily, he would not have written' that letter. He adds:

“Now, all that I would like to understand is when to look for the three dozen for samples; also, when to expect the 104 dozen. * * __ * To give you an idea of the disposition I make of the shirts, I will say that I have men out selling them at retail direct. * * * As soon as you fill this order, I will place another order for 100 or 200 dozen more, as I shall handle from 800 to 1,000 dozen every year.”

This letter does not seem to have been answered. It was followed two days later by a telegram, as follows:

“Will you allow my order to stand as original? Will place bonus of $100 with any bank to assure good faith. Wire me at once. Rush.
“C. L. Webb.”

The answer was:

“Deposit $100 Lumberman’s Bank as bonus. Have cashier send memorandum. Order put in process.”

A careful perusal of the various letters and telegrams referred .to satisfies us that:

1. The original contract, as stated, was to ship as soon as the shirts could reasonably be made.

2. The manufacture was deferred upon the several requests of the plaintiff.

3. The attempted cancellation was countermanded by wire before it could have reached defendant.

4. If it had not been countermanded, there is nothing to show that the defendant consented to waive its contract rights. The statement in its letter of March 27, 1893, that defendant had countermanded the order for the shirts, was in answer to a request to postpone their manufacture, and signified only that it had countermanded the order for their manufacture, not that it treated the contract as countermanded, — a thing plaintiff was not asking. *

5. Plaintiff’s letter of March 27 in no way limited or' affected defendant’s rights under the contract then in existence, as he evidently understood by his telegram, asking defendant to let his order stand as original.

The defendant’s contract, as originally made, never was waived or changed by its consent. There was no agreement that the shirts should be delivered as stated in either count of the declaration, and the court should have directed a verdict for the defendant.

The plaintiff unblushingly admits that he resorted to artifice to obtain jurisdiction of the defendant, and the correspondence provokes a strong suspicion that he designed from the first to trap the defendant into a position where he could make a claim for damages for non-delivery.

As the plaintiff cannot recover under his declaration, and jurisdiction was obtained under what we consider an abuse of the process of the court, we think there should be no new trial ordered. The defendant will take judgment in this Court for its costs of both courts.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, C. J., did not sit.


author: Grant, J.

text:
    Robbins B. Taylor et al. v. The Bay City Street Railway Company.
    [See 80 Mich. 77.]

      Street railways — Action by abutting owners — Bes judicata — Damages — Interest—Evidence—Admissions.
    1. Plaintiffs, with other abutting lot-owners, filed a bill to restrain fee construction by the defendant of a certain new line of road, upon the ground that it would damage complainants’ property, and that no compensation had been paid or offered to complainants, nor any steps taken to condemn a right of way through the street. A preliminary injunction was granted, which was set aside upon the filing of defendant’s answer. The case was heard on pleadings and proofs, and the bill was dismissed. On appeal the decree of dismissal was l'eversed, and a decree entered restraining the defendant from the use of that part of its road complained of until it had complied with the statute requiring condemnation proceedings, but giving a reasonable time m which to institute the same. (See Taylor v. Railway Co., 80 Mich. 77.) The injunction was not enforced, and the defendant continued to use said portion of its road without taking any steps under the statute for the determination of the damages, if any, to the complainants. Thereupon the plaintiffs, who were the owners and occupants of one of said abutting lots, sued the defendant to recover damages for the construction and use of said road opposite their premises. And, in reversing a judgment rendered in their favor, it is held:
    a — That the conditions under which the defendant was authorized to lay its track upon the street in question were settled in the former suit, by which it was established that the ordinance of the common council directing and authorizing the laying of the track, and its use, did not authorize its construction and use before the institution and determination of proceedings to compensate the owners of adjoining property.
    b — That the injunction not having been enforced, and -the defendant having continued to use its track, and having taken no steps for the determination of the consequent damage to adjoining property-owners, plaintiffs are clearly entitled to maintain their suit, in which they can recover the actual damages by them sustained between the time of laying the track and the institution of said suit; citing Mulholland v. Railroad Co., 60 Iowa, 740; Mollandin v. Railway Co., 14 Fed. Rep. 394.
    e — That it was error for the court to permit evidence on the part of the plaintiffs tending to show that there was no public necessity for the existence of defendant’s road upon the street in question, and to refuse to instruct the jury, upon the request of the defendant, that the determination of the mayor and common council that the laying and operation of the line on said street was proper and a public convenience was conclusive on all parties; the testimony being incompetent, and the request correctly embodying the law.
    d — That it was error to allow plaintiffs to recover, as a part of their damages, costs and attorney’s fees and for time spent in and about the chancery suit, as such costs belonged to that proceeding, and whatever of them the law allows should have been, and presumably were, taxed in that suit.
    e — That it was error for the , court to allow plaintiffs to introduce evidence tending to show that drays and teams could not stand at right angles with the sidewalk between it and the defendant’s track, and leave room for the cars to pass, and to refuse to instruct the jury, on the request of the defendant, that the plaintiffs were not entitled to damages because of this, and that they did not possess the right to have teams thus stand in front of their premises for the purpose of loading and unloading goods; citing Hobart v. Railroad Co.,21 Wis. 194.
    f — That it was not error to instruct the jury to add interest from the date of the commencement of the suit to whatever damages they should find the plaintiffs had sustained; that the old rule undoubtedly was that interest could not be allowed upon unliquidated damages, but that the tendency of the courts has been to set aside this rule, and adopt the more reasonable one, in cases of injury to property, that the jury must first determine the actual damage sustained, and allow interest upon that sum from its date.’
    2. The testimony on the part of the plaintiffs tended to show that the track was raised above the pavement. The defendant offered to show that the track was laid on the grade established by the city authorities, but the court rejected the testimony. And it is held that, while it is true that the establishment of the grade of the street was wholly within the power of the common council, and defendant could not legally lay its track upon any other grade, still this would not relieve it from liability for damages if any resulted from such construction of its road-bed.
    8. The testimony of a witness for the defendant as to the statement of one of the plaintiffs, made during negotiations for a settlement, that he would consent to no' settlement if the defendant’s tracks were removed from the streets upon which plaintiff’s lot abutted, so as to divert the travel from his property, was stricken out by the court, upon the ground that such statement was a part of such negotiations, and therefore incompetent. And it is held that any statement made by any of the plaintiffs, whether during negotiations for settlement or otherwise, which tended to show that he considered the railway a benefit rather than an injury, was clearly competent.
    Error to Bay. (Cobb, J.)
    Argued April 26, 1894.
    Decided June 16, 1894.
    Case. Defendant brings error.
    Beversed.
    The facts are stated in the opinion, and in 80 Mich.. 77.

      McDonell é Hall, for appellant.

      T. A. E. & J. 0. Weadoelc, for plaintiffs.

       See exhaustive note to Wilson v. City of Troy, 18 L. R. A. 449, for cases bearing on the question of the allowance of interest on a sum awarded as damages.

   Grant, J.

The plaintiffs in this case were also some of the complainants in Taylor v. Raihvay Co., 80 Mich. 77. The conditions under which the defendant was authorized to lay its track upon the street in question were there settled. The doctrine there established is stare decisis, and cannot be reviewed in this suit. That case was appealed to the Supreme Court of the United States, from which it has been dismissed. Plaintiffs instituted this suit to recover damages for the construction and use of the railway opposite their premises, situated on the corner of Third and Washington streets. By the former suit it was established that the ordinance of the common council directing and authorizing the laying of the track, and its use, did not authorize its construction and use before the institution and determination of proceedings to compensate the owners of adjoining property. The injunction granted in that case was not enforced, but the defendant continued the use of its track. The only remedy open to plaintiffs was to sue for damages during the time in which the injunction was not in force.

Inasmuch as the defendant has taken no steps under the statute for the determination of the damages, if any, to the adjoining property, plaintiffs are clearly entitled to maintain this suit, in which they can recover the actual damages sustained between the time of laying the track .and the institution of the suit. Mulholland v. Railroad Co., 60 Iowa, 740; Mollandin v. Railway Co., 14 Fed. Rep. 394.

Complaint is made that the court permitted evidence on the part of the plaintiffs tending to show that there was no public necessity for the existence of this road upon the street in question, and that the court refused to instruct the jury that the determination of the mayor and council that the laying and operation of the line on this street was proper and a public convenience was conclusive on all parties. The testimony was incompetent, and the request correctly embodied the law. If this were the only error, it might perhaps be held that it was without prejudice, but, inasmuch as a new trial must be ordered, it is proper to determine the question. Under the charter, the determination of the council is conclusive as to the necessity and public convenience, and the jury, under the proceedings instituted by the defendant, could determine only the question of damages. Thó court should have instructed the jury that the defendant had acquired the proper authority from the city to the use of this street. The only thing wanting to its right to lay and use its track was either an amicable settlement with the adjoining lot-owners or proceedings to compensate them in damages.

Plaintiffs were allowed to recover costs, attorney's fees, and for time spent in and about the chancery suit. This was error. These costs belonged to that proceeding, and whatever of them the law allows should have been, and presumably were, taxed in that suit.

The plaintiffs introduced evidence tending to show that drays and teams could not stand, at right angles with the sidewalk between it and the railroad track, and leave room for the cars to pass. The court was requested to charge that the plaintiffs were not entitled to damages because of this, and that they did not possess the right to have teams thus stand in front of their premises for the purpose of loading and unloading goods. The testimony was incompetent, and the request should have been given. No objection exists to such use of the street until public convenience is thereby interfered with. But there is no inalienable right to ptlace trucks and drays across the street for the convenience of private parties when public travel is thereby obstructed. Hobart v. Railroad Co., 27 Wis. 194.

The testimony on the part of the plaintiffs tended to show that the track was raised above the pavement. Defendant then offered to show that the track was laid oh the grade established by the city authorities, but the court rejected the testimony. While it is true that the establishment of the grade of streets was wholly' within the power of the council, and defendant could not legally lay its track upon any other grade, still this would not relieve the defendant from liability for damages if any resulted from such construction of the road-bed. Under the former decision the defendant is liable for all damages which resulted from the construction and use of the railway, notwithstanding that the city authorities had fully complied with the charter provisions in making the order and granting the right.

Negotiations were entered into for a settlement; During these a conversation took place between the plaintiff Taylor and one Joseph Turner, who was interested in the railway. He testified as follows: “Mr. Taylor came into my office, and said that he would consent to no settlement if the tracks were removed from Third street and Washington street so as to divert the travel from his property.” This testimony was stricken out by the court upon the ground that it was a part of the negotiations for a settlement, and therefore incompetent. Propositions for a compromise are of . course inadmissible, but, if a party during such negotiations makes statements not in harmony with his claim for damages, such statements are competent evidence to contradict him when he has testified that he suffered damages. Any statement made by any of the plaintiffs in this case, whether during negotiations for a settlement or otherwise, which tended to show that he considered the railway a benefit rather than an injury, was clearly competent.

Complaint is made of the instruction to the jury to add interest from the date of the commencement of suit. 'The authorities are not uniform upon this subject. The old rule undoubtedly was that interest could not be allowed upon unliquidated damages, and, in actions of tort, damages are of course unliquidated. The tendency of courts has been, however, to set this rule aside, and adopt the more reasonable one, in cases of injury to property, that the jury must first determine the actual damage sustained, .and allow interest upon that sum from its date. This Court has adopted this rule in the following cases: Lucas v. Wattles, 49 Mich. 380; Kendrick v. Towle, 60 Id. 368. Some cases hold that it is discretionary with the jury to allow interest on damages in ease of trespass to real property. Railroad, Co. v. Cobb, 35 Ohio St. 94; Walrath v. Redfield, 18 N. Y. 457; Railway Co. v. Swinney, 97 Ind. 586. The supreme court of Illinois held it error to allow it as a matter of legal right. City of Chicago v. Allcock, 86 Ill. 384. For a discussion of the principle and authorities, see Suth. Dam. § 355. We think there was no error in the instruction.

Judgment reversed, and a new trial ordered.

'The other Justices concurred.


author: Montgomery, J.

text:
    The Whitaker Iron Company v. The Preston National Bank of Detroit.

      Sale — Fraud—Rescission—Bona fide purchaser — Evidence.
    1. Where fraud is shown in the purchase of property, one who claims to be a good-faith purchaser has the burden of showing this fact.
    :2. A corporation made a statement of its financial standing as a basis for credit, in which it valued its accounts receivable and personal property at over $46,000. The vendor sued in trover for the goods, and the testimony tended to show that among the accounts receivable was an item of $3,000; that no such indebtedness existed, but that the alleged debtor had certain goods in his possession belonging’ to the vendee, which were afterwards sold for $300, and that this was the sole basis for the $3,000 item. The testimony further tended to show that there was included in the list of personal property an item of $5,000 for a patent, and that the same had been purchased some years before for $3,000, or thereabouts. And it is held that, while these items may have been open to explanation, yet the Court are not prepared to say that the testimony did not have some tendency to show that the statement was inaccurate, and that it did not justify the jury in so finding.
    3. It appeared that the vendee had been in the habit of paying two of its directors $500 a year each as compensation for indorsing and guaranteeing its notes given to a bank to which it claimed to have sold the goods, and which was sued for their value, and to other banks, and the defendant requested an instruction that this fact should not be taken as evidence of bad faith in the transaction in controversy; which instruction was given, with the added statement that the jury had a right to consider, with all of the other evidence in the case, these circumstances, in determining whether or not the debt was fraudulently contracted with intent not to pay for the goods. And it is held that this modification of the request is not open to criticism.
    Error to Wayne. (Gartner, J.)
    Argued April 26 and 27, 1894.
    Decided June 16, 1894.
    Trover. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Julian G. Dickinson, for appellant.

      Alfred Liicking, for plaintiff.
   Montgomery, J.

The plaintiff is a manufacturer of sheet iron. During the year 1890 it furnished to the Detroit Elbow Company goods to a considerable amount, including those in question in this suit. The elbow company, in December, 1890, sold the goods in question to the defendant, and the agreed price was indorsed as payment upon certain notes held by the bank and given by the elbow company. The bank held the guaranty of one of the directors of, the elbow company, J. D. Standish, which it was claimed by defendant was released by operation of law upon accepting the goods.in question as part payment. The plaintiff, claiming that the goods in question were bought by the elbow company with intent not to- pay for them, and that the credit was extended in reliance upon certain false representations made by the officers of the company relating to its financial standing, made demand upon the bank for the goods, and, on refusal of the bank to deliver, brought this action in trover.

The case presented two issues of fact for the determination of the jury: First, was there fraud in the purchase of the goods by the elbow company? And, second, was the bank a Iona fide purchaser for value? The plaintiff recovered a verdict, and the defendant appeals,

It is earnestly contended that there was no evidence tending to show fraud in the purchase of the goods by the elbow company, and that a verdict should have been directed for the defendant on this ground. We have carefully examined the testimony, and are not prepared to say that there was a total lack of evidence upon this branch of the case. The manager of the elbow company, Mr. Stoddard, was made a witness for the plaintiff, and denied any fraudulent purpose; but we think there was enough testimony to raise the question of the accuracy of the statement made by the company as a basis for credit. By this statement it was represented that there were accounts receivable amounting to $6,244.69, and personal property amounting to $39,779.34. There was testimony which tended to show that included in the accounts receivable was an item of $2,000 against McDonald & Co., of Toronto, and also that there was no such indebtedness, but that Me-Donald & Co. had certain goods in their possession belonging to the company, which were afterwards sold for $300, and that this was the sole basis for the item of the $2,000 account. There was also an item in the personal property for $5,000 for a patent, which the evidence tended to show was purchased some years before for $2,000, or thereabouts. While these items may have been open to explanation, yet we are not prepared to say that the testimony did not have some tendency to show that the statement was inaccurate, and did not justify the jury in so finding.

The circuit judge charged the jury as follows:

“It will be for you to say as to whether the Preston National Bank — the corporation itself — parted with something valuable in itself, and as to whether it did not have notice of the fraud.”

In another portion of the charge the circuit judge stated to the jury, in substance, that if the property was turned over in payment of a pre-existing indebtedness, this would not, under the law, constitute the defendant a bona fide purchaser. There was no specific instruction as to the effect of the discharge of the guarantor, and it is alleged that this instruction did not cover the law of the case. There was no evidence of a discharge of the guarantor except as he would be discharged by operation of law on payment of a portion of the debt. It is unnecessary to determine whether, under these circumstances, these instructions were not sufficiently full, for, in the view we take of the case, there was nothing upon which to base the submission of the question of the good-faith purchase of the defendant to the jury. The defendant offered no testimony whatever to show that it was a good-faith purchaser. When the witness Stoddard was on the stand he gave the following testimony:

Q. Do you remember its being talked over that it would be a good idea to sell it outright to the bank, and let them remove it, for fear of somebody attempting toreplevy it?
“A. I don’t remember.
“ Q. Was there not something of that kind said?
“ A. There was some reason given for moving it.
“ Q. Was not that the identical reason?
“'A. I really could not tell.
“ Q. That is, your recollection is faulty as to what was said about that.
“A. Yes, I know there was some reason given for moving it; but just what the reason was I could not state.”

This testimony is cited, not as showing affirmatively that the bank did have notice of the infirmity of the elbow company’s title, but to show that Stoddard, the only witness called who “could have had any knowledge upon the subject, was unable to say that it did not, and was unable to say that the only reason for removing these goods was not to prevent their being replevied. If, then, thé burden of proof rested upon the bank to show its good-faith purchase, there certainly was no error to the prejudice of the defendant in the instructions which the court gave. We think the rule is that, where fraud is shown in the purchase of property, one who claims to be a good-faith purchaser has. the burden of showing this fact. See Letson v. Reed, 45 Mich. 27; Berry v. Whitney, 40 Id. 65; Carrier v. Cameron, 31 Id. 379; 2 Schouler, Pers. Prop. § 609; Devoe v. Brandt, 53 N. Y. 462; Lynch v. Beecher, 38 Conn. 490.

It appeared that the elbow company had been in the habit of paying to two of its directors — Mr. Standish and Mr. Hayes — $500 a year each as compensation for indorsing and guaranteeing the notes given to the Preston National Bank' and other banks. The defendant requested the instruction that this fact should not be taken a,s evidence of bad faith in the transaction in controversy. The circuit judge gave the instruction, but added .that the jury had a right to take into consideration, with all the other evidence in the case, these circumstances, in determining the question which had been submitted, viz., whether the debt ivas fraudulently / contracted with intent not to pay for the goods. We do not think this modification of the request is open to just criticism. It was certainly com.petent for the jury to take into account, in determining the question whether the goods were purchased with intent not to pay for them, the knowledge which the manager, Stoddard, had of. the situation of the company and its. ability to meet its obligations.

We have examined the charge with care. We think the-instructions fairly submitted the questions of fact to the-jury, and, while the case, upon the proof, is not a strong one, we feel constrained to hold that there was sufficient, evidence tending to sustain the plaintiff’s claims to require the submission of the case to the jury. If a wrong .conclusion upon the facts has been reached, we are not, in this proceeding, able to apply the remedy.

The judgment will be affirmed, with costs.

The other Justices concurred.


text:
    Samuel D. Whitney v. Martin Bayer and William D. Fox.

      Bes judicata — Verdict—Special findings.

    1. The only exceptions to the general rule that a verdict cannot operate as an estoppel until it has received the sanction of the court are Avhere the parties have agreed to abide by a verdict, or where the statute makes the verdict conclusive, leaving with the court no control over the action of a jury.
    3. The answers of a jury to special questions submitted to them are not res judicatae as to the facts found on the trial of a second suit brought for the same cause of action, where judgment was entered in favor of the defendants in the first suit on "the ground that, as shown by said findings, the suit was prematurely brought, and that the answers to said special questions were inconsistent with the general verdict.

    So held, whece the plaintiff sued to recover one-half of the profits realized by the defendants on a sale of real estate to a customer whom plaintiff claimed to have furnished, and on the trial the defendants contended that plaintiff was to receive a less percentage of the profits, and the jury, in answer to special questions submitted to them, found that the agreement as to a division of the profits was as claimed by the plaintiff, but that the defendants had not received the profits when the suit was commenced, and rendered a general verdict for the plaintiff for the amount claimed; and the court, on motion of the defendants for a judgment non obstante veredicto on the ground that the suit was prematurely brought, and that the answers to the special questions were inconsistent with the general verdict, entered a judgment that the plaintiff take nothing by his said suit, and that the defendants go thereof without day, and that they recover their costs, etc.
    Error to Wayne. (Hosmer, J.)
    Submitted on briefs April 25, 1894.
    Decided June 16, 1894.

      Assumpsit. Defendants bring error.
    .Reversed,
    The ;faets are stated in the opinion.

      Malcolm McGregor, for appellant.

      W. W. Ohapin, for plaintiff.

       For cases bearing upon the submission of special questions to the jury, see Cousins v. Railway Co., 96 Mich. 386, and note; Brassel v. Railway Co., 101 Id. 5.

   Montgomery, J.

Plaintiff brought an action of assumpsit against the defendants, claiming to be entitled to one-half the profits which defendants had realized on the sale of certain real estate to a customer whom plaintiff claims to have furnished. The amount of the commission realized by defendants was $500, but the defendants’ contention was that the agreement under which plaintiff furnished the customer was that he was to receive one-half of a 2 per cent, commission, and that he had been fully paid. On the trial the jury was impaneled, and, in answer to special questions, found that there was an agreement on the part of defendants to pay plaintiff one-half of the profits, and negatived the claim of defendants that the agreement was to pay one-half of a 2 per cent, commission; but the jury also found that the defendants had not received the profits at the time of the commencement of the suit. The court thereupon entered a judgment veredicto non obstante in favor of the defendants, and on the ground that the suit was prematurely brought. Plaintiff waited until the defendants collected the commission of their principal, and then instituted the present suit, and recovered the amount of one-half of the commission earned. The circuit judge, on the trial of the present case, instructed the jury that the question of whether defendants promised plaintiff one-half the amount realized by them was determined by the former verdict. Error is assigned upon this instruction, and this presents the sole question for our consideration, viz., whether the special findings of the jury on the first trial are res judicatae.

It is a general rule that a verdict cannot operate as an estoppel until it has received the sanction of the court. Duchess of Kingston’s Case, 2 Smith, Lead. Cas. (8th Amer. ed.) 962; 2 Black, Judgm. § 682, and cases cited; Hawks v. Truesdell, 99 Mass. 557; McGinnis v. Bridge Co., 49 Mich. 466. The only exceptions we have found to this rule are where the parties have agreed to abide by a verdict, or where the statute makes the verdict conclusive, leaving with the court no control over the action of the jury. Obviously neither of these exceptions applies here. It will be noted that the judgment entered on the verdict was not based upon the finding of the contract to pay one-half the profits. That determination was in no way essential to the question upon which the judgment turned, viz., whether the same was due or not. It will also be noted that the defendants had no opportunity to review that part of the verdict. The determination of the jury that the amount agreed upon was not yet due was sufficient to defeat plaintiff’s action, and defendants were not bound to, and indeed could not, appeal from a decision in their own favor.

The case of Smith v. McCool, 16 Wall. 560, is, in principle, like the ease under consideration. In that case the plaintiff recovered a verdict and judgment. The case was taken to the Supreme Court, and the judgment reversed, and cause remanded, with directions to enter judgment for defendant, on the ground that the plaintiff had no title at the time the suit was commenced. There were, however, special findings, as there were in this case, and plaintiff in a second suit sought to rely upon the special findings. The Court, by Mr. Justice Swayne, answered the contention as follows:

“It is true this Court ordered a judgment to be entered upon it [the special verdict] in favor of the defendant, but that was not upon the ground that the verdict showed title in the defendant, but because it showed there was none in the plaintiff. The judgment for the defendant followed as a matter of course. It was, in effect, a judgment veredicto non obstante, or of nonsuit. Instead of giving the findings its sanction, and resting upon them as its foundation, the judgment denied their efficacy, and repelled them as immaterial. * * * * * *
“Under the circumstances, we think the special verdict, and the proceeding upon it in the case in which the verdict was rendered, may be regarded as not unlike a demurrer to evidence. In such cases there is an admission of record of all the facts proved, of those which the evidence tends to prove, and of those which may be fairly inferred from it. The party demurring relies upon the law arising upon the facts thus presented. The facts so spread on the record are never evidence for or against either party in another suit. Here the special verdict performed the same office as such a demurrer. The defendant’s counsel insisted upon the legal proposition — ultimately sustained by this Court — that, conceding the facts to be as found, the plaintiff was not entitled to recover in that action. He may well have been, and doubtless was, less careful to introduce his full evidence, and to contest the facts found, including the one which the verdict was offered in this case to prove, than he would have been but for the confident assurance that they were all immaterial in respect to the judgment to be given, which he claimed must be in favor of his client.”

This reasoning applies with peculiar force to the present .case, in which the defendants may well have'felt a confident assurance that no judgment could, under any circumstances or under any finding of the jury, be rendered against them, as, whatever the bargain between the parties may have been, the claim was not yet due. The direction of the trial judge was error.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.