text:
    SHERED v. SHERED.
    1. Divorce — Desertion—Evidence.
    Evidence that complainant’s wife deserted him after being married about a year, that he was 74 and she was 49 years of age, that she commenced about five months after the marriage to urge him to convey certain property to her, and left him without cause when he refused to comply with her request, although defendant charged him with unnatural conduct and annoying habits, the testimony as to these matters of defense being disputed, justified the court in granting complainant a divorce on the ground of desertion.
    2. Same — Dower—Award in Lieu of Dower.
    Under Act No. 259, Pub. Acts 1909, a provision of $400 in lieu of dower should have been granted to the wife out of property worth about $10,000.
    Appeal from Van Burén; Des Yoignes, J.
    Submitted June 11, 1912.
    (Docket No. 70.)
    Decided October 2, 1912.
    Bill by John B. Shered against Evelyn Shered for divorce. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      W. J. Barnard, for complainant.

      Charles JET. Fisher and Glenn E. Warner, for defendant.
   Steere, J.

In this suit defendant has appealed from a decree of divorce granted to complainant by the circuit court in chancery of Yan Burén county on the ground of desertion, with an allowance to defendant of $250 permanent alimony and $95 for solicitor’s fees and costs. After a short acquaintance, the parties were married on December 6, 1905, at which time complainant was approximately 74 years of age and defendant 49. Each had been previously married. He was a widower and she a divorcee. He had lived with his first wife 48 year's, was a farmer by vocation, living in "Waverly township in said county, where he owned a farm of 86 acres and some other property which, with the aid of his former wife and son, a man now near 50 years of age, he had acquired during years of effort and industry. His total accumulations were found by the court to be approximately $6,000. Defendant had obtained a divorce from her former husband some years previous to her marriage to complainant, in Elgin, 111., where she lived most of her life. She had one child, a married daughter, living in Illinois. Subsequent to her divorce from her former husband, defendant had, being without means, earned her living as a domestic, also by caring for the sick and working in a watch factory in Elgin, 111. After they were married, defendant lived with complainant at his home on a farm in Evelyn township for less than a year, voluntarily leaving him November 17, 1906, since which time she has not returned, having gone back to her former home in Elgin, 111., where she was living at the time this suit was begun and also when it was heard in the trial court. That she left on her own initiative is undisputed. The cause of her leaving is in controversy.

On February 1, 1910, complainant filed this bill, alleging statutory desertion for more than two years. She being a nonresident, substituted service was had by publication. No appearance was entered, the bill was taken as confessed, and decree was granted June 13, 1910, after hearing the testimony of complainant and his witnesses in open court. On September 30, 1910, defendant, having secured counsel, petitioned the court to set aside the decree and allow her to answer, alleging various reasons, amongst others that she never deserted complainant, that she had no notice or knowledge of the suit until after decree, and that the cause was not regularly put upon the printed calendar for the term at which it was heard, as required by a rule of the court. The court, after hearing counsel for the respective parties in relation thereto, set aside the decree on the last ground stated, opened the default, and permitted defendant to file an answer. To this a replication was duly made and filed, and the suit regularly heard on pleadings and proofs, taken in open court, after which the decree here appealed from was rendered. Defendant denies that her leaving complainant was a legal desertion, but alleges that she was obliged to absent herself owing to his actions, consisting of annoying and filthy habits, and vile, degrading, and unnatural conduct towards her, amounting to cruel and inhuman treatment. No affirmative relief is asked. She prays that the bill be dismissed, with costs.

All charges of misconduct, as set out in her answer, and testified to by her, are positively and emphatically denied by complainant, who claims that he provided well for her and treated her kindly while she lived with him, but she became dissatisfied and left against his protest, and for the reason that he refused to transfer his property to her. He testified that, after they had been married about five months, she began to importune him to deed his property to her, and, on his refusal, she became angry, threatened to leave if he did not do so, and finally left on account of his continued refusal to comply with her demand. He testifies:

“ One night she said: ‘ I’ll give you just a week now to fix this property.’ ‘Well,’ I says, ‘now, Evelyn, I want you to let me alone. You can give me a lifetime and then I won’t.’ * * * The last time she gave me until next Wednesday to deed the property over to her, or she would have her brother come after her.”

On this subject defendant testifies:

“ I never asked Mr. Shered to give me his property. I simply asked him to take his property in his own name that I might hold a wife’s rights. I did not know I had his wife’s rights in his personal property. I never asked him to take his property in his own name but a few times.”

On the subject of certain revolting charges set out in defendant’s answer, the learned circuit judge, who saw and heard the witnesses, says:

“Nothing has been shown in his acts or conduct that rise to the dignity of cruelty. Defendant does accuse him of a serious offense, one which shocks the sense of decency, and, if sufficiently shown, ought to make him an outlaw and unfit to enter the homes of his friends and neighbors, and an outcast to society. But she alone is his accuser. All of his neighbors and friends, neighbors and friends who knew him well and personally for a generation, testify to his good reputation, his continued life of good conduct and moral rectitude. * * * It does not appear that the defendant, though living with him as his wife for nearly eleven months, made any complaint of his alleged acts of cruelty even to her relatives or close friends, and not until the filing of her answer do we hear of it. I am unwilling, under the evidence and what I observed of the witnesses while on the stand, to place this stigma upon complainant as he nears the close of what was to other observers an industrious and well-conducted life. Her claim of wrongful conduct stands uncorroborated.”

After an examination of the testimony as a whole, we are not disposed to disagree with the conclusions reached on that subject by the trial court. The testimony is overwhelming that, in the community where he had lived for a lifetime, complainant was known and respected asa man of moral rectitude, honest, peaceable, and law-abiding, kindly disposed to all, of good reputation, and exemplary character. It is testified that he was never cross or ugly around the house when living with his first wife or with defendant; that he did not use tobacco, intoxicating liquor, or profane language, was religiously inclined, and given to reading his Bible and singing hymns; in fact, his loud indulgence in the latter devotional exercise at inopportune times, during the still watches of the night, disturbing her slumbers, was one of defendant’s grievances. He also mildly complains that her criticisms of his habits tended to ruffle his religious serenity at times. In denying a vulgar impropriety, of which she accused him, he testified:

“ ‘ Now,’ I says, ‘ Evelyn, I didn’t do any such thing.’ She says, ‘You did.’ I says, ‘ I didn’t,’ and she would close by saying, ‘You are nothing but a good-for-nothing, low, dirty, rotten pup.’ That was the closing speech that time, and she wrought me up so I couldn’t ask the blessing at the table.”

It is manifest that defendant, having hastily married an old man drifting into his dotage, with certain fixed habits of a lifetime which were not altogether in conformity with the usages and amenities of polite society, found life on a farm, in his companionship, with its weary round of uneventful toil, dull, uncongenial, and distasteful. She disliked farm life, was dissatisfied, complained of the barnyard smell which hovered around complainant, importuned him for his property, wanted him to sell it and go into some business in town, and finally, after an unsatisfactory trial of less than a year, abandoned him and the home he provided, leaving against his protest and of her own choice. We think the statutory desertion alleged is established by a preponderance of testimony, and, by such desertion, she has deprived herself of rights which would otherwise obtain.

She contributed nothing to the property of complainant at the time of her marriage or after. His earning powers are near an end, if not ended. His accumulations of a long life are not large, and his home, established in a new house built for them, where he planned to live with her the few remaining years of his life, has been broken up by her desertion. That this was a marriage of convenience, and in the nature of a business venture on the part of defendant, is indicated. In that aspect of the case she has failed to fulfill her part of the contract, and has sought, in defense, to blacken the character of complainant by vicious charges which have not been found substantiated. While defendant is not, for these reasons, entitled to the consideration of one who is blameless, yet some provision seems permissible and proper, under all the circumstances of the case, in view of Act No. 259, Pub. Acts 1909, which makes it the duty of the court to include in a decree some provision in lieu of dower, which is to be in full satisfaction of all claims the wife may have in any property the husband owns or may thereafter own or in which he may have an interest. Recognizing this, the trial court awarded $250 on the basis of $6,000, found td be defendant’s worth at the time of the hearing. In his sworn answer to the petition for a rehearing, complainant “admits that he was the owner of property in the neighborhood of the value of $10,000 at the time he procured said decree of divorce.” In view of this, we think it proper to increase the allowance to $400, with costs for printing the record in this court.

With such modification, the decree is affirmed.

Moore, C. J., and McAlvay, Brooke, Stone Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    HOPKINS v. SANDERS.
    1. Mortgages — 1Taxation—Foreclosure—Lien for Taxes Paid.
    While there is no question that a mortgagee may pay taxes assessed against the mortgaged premises after the execution of the instrument in order to protect his lien, and may add the amount so paid to the decree of foreclosure; as to taxes assessed before that date, the right is not so clear, but if the equities of the case warrant it the mortgagee may be allowed taxes paid to cancel liens existing at the time of the execution of such mortgage, and may include the amounts in the foreclosure decree.
    2. Equity — Practice—Costs—Pees—Deoree.
    Act No. 267, Pub. Acts 1911, fixing the fees of the registers in chancery payable before default decree is entered, at two dollars, repeals local acts conflicting with it, including Act No. 259, Local Acts of 1883, which provided for a larger fee in Wayne county.
    Appeal from Wayne; Donovan, J.
    Submitted June 18, 1912.
    (Docket No. 98.)
    Decided October 2 1912.
    Bill by . John Hopkins against Josephine Sanders for the foreclosure of a mortgage. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Palmer & Palmer, for complainant.

      Willis G. Glarhe, for defendant.
   Steere, J.

This case involves a computation of the amount due on a mortgage foreclosure and taxation of costs. In the foreclosure proceedings defendants appeared by attorney, but did not answer. The bill was taken as confessed, and decree rendered upon testimony taken in open court.

The mortgage was given on December 21, 1908, for the sum of $1,602.15, with interest at the rate of 6 per cent, per annum. At the time the mortgage was executed, there were taxes standing against the property, which the mortgagee discovered must be paid before the mortgage would be recorded. Defendant made no payments upon said mortgage, of either principal or interest, and, after said mortgage was given, paid no taxes uoon the property mortgaged.

The bill of complaint for foreclosure was filed on February 15, 1911, over two years after said mortgage was given. Upon hearing the testimony in open court, a decree was granted October 16, 1911, for principal, interest and taxes paid by complainant, amounting to $2,179.21. The amount due on the mortgage, exclusive of taxes, with interest thereon, was $1,866.77. The mortgage contains no tax clause expressly authorizing the payment of taxes by the mortgagee and adding them to the mortgage lien. The taxes included in the amount for which decree was given were: Tax list of city taxes 1906, $65.39, paid August 27, 1909; special sidewalk assessment prior to date of mortgage, $130, paid September, 1909; city taxes 1907, $31.09; city taxes 1908, $29.92; city taxes 1909, $39.10 — less an item of $6.13, being the State and county taxes for 1908 going to make up the total of $29.92 withdrawn as having been included in the amount of the original mortgage. In the taxation of costs was included an item of $4 for “ pro confesso decree fee.”

Defendant’s solicitor having duly appeared at the hearing and objected to said items of taxes being included in the amount decreed, and having moved for retaxation of said decree fee, an appeal from said decree was duly taken; and it is urged that the decree of foreclosure was excessive to the extent that it erroneously included the amounts paid for discharge of taxes which were against the property when said mortgage was given, and the decree fee should have been only taxed at $2, under Act No. 267, Pub. Acts 1911, instead of $4 as taxed.

It is stated by text-writers, supported by numerous authorities, to be a general rule of law that if the owner of mortgaged premises fails to pay taxes or assessments imposed thereon, and which it' is his duty to pay, the mortgagee may pay such taxes to protect his lien and add the same to the amount of the mortgage, although the mortgage contains no clause expressly authorizing him to do so (Jones on Mortgages [6th Ed.], § 1134; Wiltsie on Mortgage Foreclosures, § 452); but it is the contention of defendants that in this State, in the absence of statute or an express agreement between the parties, a mortgagee cannot pay taxes to relieve the mortgaged property of a tax lien which occurred prior to the execution of the instrument, and add it to the amount of his mortgage, citing Pond v. Drake, 50 Mich. 302 (15 N. W. 466), and Macomb v. Prentis, 78 Mich. 255 (44 N. W. 324).

Section 3876, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 1821), provides:

“ Any person having a lien on property may, after 30 days from the time the tax is payable, pay the taxes thereon, and the same may be added to his lien and recovered with the rate of interest borne by the lien.”

Section 220 of the charter of the city of Detroit provides :

“ Any person having a lien on property may pay the taxes thereon, and the same may be added to his lien and recovered with the rate of interest borne by the lien.”

Under the foregoing statutory provisions, the right to add the item of $39.10, for the city taxes of 1909, accruing subsequent to the date of the mortgage, to the amount of the mortgage cannot be questioned.

It is claimed, however, that the right to subsequently pay taxes existing and easily ascertained at the time of giving the mortgage differs from the right to pay taxes not then existing, but which are subsequently imposed, and by default of the mortgagor are allowed to run and imperil, not only his title, but the mortgagee’s lien, and that the statute has in effect been construed as only applying to the latter.

It is the contention of complainant that, even conceding such construction to be correct, it is well within the powers of the court of chancery to give mortgagees full protection in equity for the payment of tax liens existing at the time of the making of the mortgage, irrespective of the statute or agreement, when, as in this case, it is the duty of the mortgagor to pay the taxes, and, as the result of his failure to do so, it becomes imperative for the mortgagee to pay them, in order to avoid losing his entire lien. The case law upon that subject is not abundant or entirely in point in this State.

In the case of Pond v. Drake, supra, a bill was filed and decree of foreclosure granted for $14.92, entirely made up of an amount paid for taxes which had accrued before the date of the mortgage. Subsequent to the time of giving the mortgage, Mrs. Drake, the defendant, purchased the land covered by it. When she purchased, the tax sale for the item in dispute appeared to have been canceled by redemption. She paid the mortgage in full, in two installments, without any notice of complainant’s claim for any taxes he had paid. She appeared and defended the foreclosure suit for the amount, claiming, among other things, that the taxes were not regular. The court held that the equities were with the defendant, and the lien could not be maintained. To reach the question of equities, the court reasoned and equivocally held that the statute authorizing payment of the tax and adding it to the lien did not apply, saying:

"It is certainly open to question whether this statute applies to cases where the mortgage was given after the taxes had been already returned, * * * and whatever may be the equities outside of the statute, there seems to be no occasion for any statutory protection. The statute appears to be designed to reach cases where at once, on the return of the taxes, the lienholder may have a right to pay them. * * * It seems to us that, if a mortgagee accepts a mortgage on lands already subject to returned taxes, his rights must arise from such equities as are independent of the statute.
" Where the mortgage is silent on the subject, the utmost that can be fairly claimed is that complainant may in some cases obtain equities out of action necessary for his own protection. When and to what extent such equities may arise need not now be considered, because all mere equities may be waived or lost by the conduct of parties, and, in our opinion, no such equities remain here. * * * Assuming that under these circumstances the lien could be enforced against her at all, she was entitled to know what complainant’s claim was before she paid the mortgage. * * * By suppressing the fact that he held this claim, complainant acted prejudicially towards defendant. * * * We think it is not equitable now to enforce it against the land.”

The most it can be claimed the court held in that case, of general application, is that the statutory protection was not needed for, and did not apply to, payments of taxes returned before the time of giving the mortgage, leaving such cases open to equitable inquiry.

In Macomb v. Prentis, supra, an original mortgage debt had been satisfied by foreclosure of the original mortgage, and a suit was subsequently brought by an assignee to foreclose an agreement contained in an assignment of the mortgage for foreclosure costs and taxes assessed after the making of the assignment. Complainant also sought to recover money paid for outstanding taxes and tax titles. It was held that in such case, before the assignor would become liable or a lien be created, there must be a special agreement. The parties had undertaken to make costs of foreclosure, taxes, and assessments a matter of special agreement, and omitted to cover the subject-matter in controversy. This agreement was sought to be enforced by Macomb, as a mortgage, by foreclosure. He virtually stood in the position of mortgagee and contracted to convey the property, “freed and discharged from any liens or incumbrances caused by or through him, except that said Macomb shall not be liable for any loss or damage caused by the sale of said premises for the nonpayment of taxes or assessments.” The court said:

“ Before a liability on the part of Prentis could exist or a lien be created for the taxes previous to the date of the agreement, which had matured into a title in favor of Macomb, a special agreement for that purpose would have to be made, and a court of equity cannot create such a contract for the parties.”

In the case of Bennett v. Nichols, 12 Mich. 22, cited by counsel for defendant to sustain the proposition that courts of equity cannot create a lien on real estate to secure a personal debt, the court said:

“We have not been able to discover upon what principle a court of equity can create a lien on real estate to secure a personal debt, not contracted on its credit, and not charged on it by agreement. There may be cases where, from the nature of the transactions between the parties, rights spring up which ought to be held binding on specific property.”

It has been generally held that the payment of taxes and assessments by a mortgagee on property covered by his mortgage, to protect his lien and incidentally protect the title of the mortgagor, grows out of a transaction between the parties, which, from its nature, creates an equitable lien. The authorities cited do not foreclose that question in this State.

In Vaughn v. Nims, 36 Mich. 298, Justice Campbell states, as a general proposition—

" And there can be no doubt of the propriety of allowing a party to protect his mortgage interest against taxes.”

We think that in case of mortgage foreclosure on land liable to taxation, where taxes have been assessed against it which the mortgagor neglected or refused to pay, and the mortgagee has paid them, a court of equity may declare a lien, if the taxes are not shown to be unjust, inequitable, or illegal, and no. special circumstances are shown giving rise to equities in favor of the defaulting mortgagor. The fact that he defaulted in the payment of his taxes before giving the mortgage is not an equitable consideration. The obligation to pay taxes rests primarily on the owner. He knows whether he has paid them or not. When he seeks a loan and offers mortgage security for the same on property he owns, he tacitly represents that it is security in his possession, in which he is primarily interested, which he will care for and protect; that he will perform his plain duty in paying the taxes and conserving such security, even though he may not legally warrant the title.

In this case the mortgagor, having secured the money and solemnly promised to repay it, has since enjoyed its use and possession and use of the property for over three years, has during that time ignored her obligation, paid no taxes, paid no interest, paid nothing on the principal, allowed the bill to be taken as confessed, now makes no tender or offer to pay and redeem, and interposes in a court of equity a technical defense which, if she prevailed, would be of no value to her, except to continue her possession for a time longer, unless she should redeem. The equities in this case are with the complainant. An equitable lien may exist, independent of any express agreement, arising out of general considerations of right and justice, honest dealing, and duty as applied to the subject-matter, the relations of the parties, and the transaction as a whole. We think it was within the power of the court to declare the taxes paid by complainant (on property in which both were interested, and for the protection of both) an equitable lien, to be added to the amount of the mortgage, and to include the same in the decree of foreclosure.

The pro confesso fee, to which objection is made as excessive, was manifestly taxed under Act No. 259 of the Local Acts of 1883, entitled “An act to provide for the payment of fees to the county of Wanye, in suits and proceedings in the circuit court for said county.” Section 1 of this act provides that there shall be paid to the county clerk, for the use of the county in suits and proceedings in the circuit court, various enumerated fees, among which we find the following:

“ In any suit or proceeding in chancery, a decree fee of four dollars, if there be no answer or other pleadings filed by the defendant. * * * ”

In 1911 the legislature passed general Act No. 267, entitled “An act to prescribe the fees of clerks of courts and registers in chancery,” the material parts of which, as applied to the question before us, are as follows:

“ Section 1. Before any suit at law or in chancery shall be commenced in any circuit court or in the superior court of Grand Rapids, etc., * * * there shall be paid to the clerk or register of said court by moving party, etc. * * *
“ Sec. 2. Before the entry of any final judgment by default in an action at law or pro confesso decree in chancery, there shall be paid to said clerk or register the sum of two dollars.”
“ Sec. 8. The sum or sums paid as aforesaid shall be held to be in full for all clerk, registry, entry, judgment and decree fees in any suit from the commencement thereof to and including the issuance and return of execution or other final process.”

Section 9 provides what disposition shall be made of certain fees so received in the counties where clerks receive a salary, and also in counties where they do not receive a salary.

“Sec. 10. All acts or parts of acts contravening the provisions of this act are hereby repealed.”

The provisions of the foregoing acts, relative to pro confesso decree fees, are in direct conflict; the local act for Wayne county fixing the fee at $4, and the general act of subsequent date fixing it at $2. The general rule in such cases is that the later act repeals the former.

Counsel for complainant contend that Wayne county has, by local legislation, had a special fee rate in force for many years, distinct from other counties, which, under local conditions, was deemed advisable by the legislature and has been found satisfactory; that no reason for changing the same existed, and it cannot be presumed that the legislature, in framing a general fee system for the State at large, had in mind or intended to nullify the local act; that the general act should be read as silently excluding Wayne county, which has been already distinctly provided for by special enactment — citing Crane v. Reeder, 22 Mich. 322; Gordon v. People, 44 Mich. 485 (7 N. W. 69); Connors v. Iron Co., 54 Mich. 168 (19 N. W. 938); In re Bushey, 105 Mich. 64 (62 N. W. 1036); Regents of the University v. Auditor General, 109 Mich. 137 (66 N. W. 956).

While these cases are illuminating, none of them is parallel or controlling. From them can be deduced the general principles that repeals by implication are not favored; that there is no presumption of an intention on the part of the legislature to repeal a law where no reference is made to it in a later act, unless the intent is clear, and where an act is passed for a particular purpose it is not to be held as abrogated by subsequent general legislation, which may be sufficiently broad to include it, unless the intent to abrogate is so clear and distinct as to be unavoidable.

We think the cases nearest to the point in this State are People v. Wenzel, 105 Mich. 70 (63 N. W. 1038), and People v. Furman, 85 Mich. 110 (48 N. W. 169). In the former case a prior local act gave the city of Kalamazoo power to regulate the liquor business. The general liquor law, passed some years later, provided a uniform rule throughout the State, and the court held that the former local act was repealed. In People v. Furman, supra, there was a conflict between the charter of the city of Adrian and a general law. The court there said the general act "expressly repeals all acts or parts of acts in any wise contravening or inconsistent with its provisions. It is clear, therefore, that it was the intention of the legislature to provide a uniform rule, applicable to all alike, for the conduct of this business.”

An examination of the authorities on repeals by implication shows clearly a tendency to sustain local acts as silently excluded from the operation of subsequent general acts, where the legislative intent is not so clear and positive as to render it impossible to do so; and only where the implication of intention to repeal necessarily flows from the language used, and discloses a repugnancy between its provisions and those of the former law so positive that it is impossible to reconcile the two by any fair construction, will repeal by implication be declared.

_ " The question of implied repeal being, after all, a question of implied intention, where the legislature expressly declares what effect, in the way of repeal, an act is intended to have, there is no room for any implication. ” Endlich on Interpretation of Statutes, § 303.

In the concluding section of said Act No. 367, "the legislature expressly declares its'effect, in the way of repeal,” is to abrogate "all acts or parts of acts contravening the provisions of this act.” In the absence of any "’qualification, “all acts” would naturally include both local and public, general and special, acts. There can be no question but that the local act fixing the decree fee at $4 contravenes the provisions of. the later act fixing it at $2.

“ When two statutes are so flatly repugnant that both cannot be executed, and we are obliged to choose between them, the later is always deemed a repeal of the earlier.” Brown v. County Commissioners, 21 Pa. 37.

The subject-matter of this legislation is State wide, and we can read nothing in either act from which it will be presumed there are any special, distinct, or particular conditions of local import in the county of Wayne which imply that the legislature necessarily intended to exclude it from the general law prescribing fees for clerks in courts of like jurisdiction throughout the State.

The circuit courts of Michigan are State courts, all of the same general jurisdiction, of like functions, with uniform rules of practice and procedure throughout the State. We think said Act No. 267 clearly manifests an intent, on the part of the legislature, to cover the whole subject and prescribe a uniform system of fees of clerks in such courts. In the case of Graham v. Muskegon County Clerk, 116 Mich. 571 (74 N. W. 729), it was said by Justice Montgomery :

“That a later act which covers the whole subject repeals the prior acts repugnant thereto is established doctrine.”

This act is made to apply where clerks receive a salary, and where they do not. In broad language it covers “any final decree” in “any suit at law or in chancery” in “any circuit court.” “Any” means “every,”' “each one of all,” and, by its general significance, in this connection includes the circuit court for the county of Wayne. There is absolute repugnance between the two statutes in fixing the amount of the fee in question. In that particular the local act of 1883 has been repealed by the general act of 1911, providing a uniform system of clerk’s fees in the circuit courts throughout the State.

As stated by counsel for defendant in extenuation of his attitude relative to this item of taxed costs, while it is a small matter between litigants in any one case, it is a question of general interest to litigants and the legal profession, which it is proper to have finally adjudicated. The decree pf the trial court is affirmed, and the taxation of costs will be modified by a reduction of the decree from $4 to $2.

■ Inasmuch as complainant has prevailed in the main case and defendant has prevailed upon the question of costs, which involved additional work and expense in printing of briefs and records, complainant will be awarded but one-half of the regular taxable costs.

Moore, C. J., and McAlvay, Brooke, Ostrander, and Bird, JJ., concurred.


author: Brooke, J.

text:
    SAROS v. AVENUE THEATRE CO.
    1. Landlord and Tenant — Injury by Wrongful Aot — Poisons —Torts.
    Whether the landlord acted in good faith or not, he was liable to his tenant for personal injuries caused by introducing into the room in which the tenant was sleeping a poisonous and volatile drug, i. e., formaldehyde, for the purpose, as the landlord claimed, of fumigating the premises.
    2. Same — Trial—Damages—Aggravation of Pre-existing Condition.
    Under uncontradicted testimony that plaintiff had previously enj oyed good health, which the act of the defendant impaired, causing a chronic inflammation, by reason of irritating gases inhaled by the plaintiff, the court erred in charging the jury that if the formaldehyde merely aggravated a pre-existing condition plaintiff could not, under his declaration, recover.
    3. Same — Damages.
    The only question for the jury was that of plaintiff’s damages.
    Error to Wayne; Rohnert, J.
    Submitted June 13, 1912.
    (Docket No. 41.)
    Decided October 2, 1912.
    Case by George Saros against the Avenue Theatre Company for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Guy E. Miller, for appellant.

      Dennis B. Hayes, for appellee.
   Brooke, J.

Plaintiff, as lessee under defendant, had occupied the premises at No. 72 Woodward avenue, Detroit, for some five years prior to May 1, 1908. The lease under which plaintiff held was in writing, and according to its tenor expired on said date. Plaintiff, however, contended (apparently in good faith) that he had a right to continue in possession up to September 1, 1908. Between May 1 and May 6, 1908, one Prank Drew, defendant’s manager, in company with a number of other men, made an abortive attempt to gain possession of the premises by force. As a result of this attempt, plaintiff, with a number of his employes, remained in the building during the night of May 6 and 7, 1908. The leased premises consisted of a single room, about 20 by 26 feet, with a ceiling about 20 feet high. Behind the rear partition of the room is located the stage of the Avenue Theatre. About 11:30 p. m., May 6, said Drew, with several employés, went upon the stage of the theater, bored a hole through the partition separating the stage from the room occupied by plaintiff, and, using a bicycle pump for that purpose, injected about two quarts of liquid formaldehyde into the room where plaintiff and his employés were dozing upon chairs and shoe-shining seats. The formaldehyde ran down the wall and stood in pools upon the floor. This drug is highly volatile, and when exposed to air gives off a poisonous gas which is dangerous to human life, if inhaled for any considerable length of time. It acts directly upon the mucous membranes — the throat, nasal passages, and eyes. The record does not disclose how long the formaldehyde had been in the room before its presence was detected by plaintiff and his associates. It does show, however, that some three or four minutes elapsed after its discovery before the inmates were able to reach and open the door to the street which was the only opening the room contained.

Plaintiff claimed and offered medical testimony tending to support the claim that, as a result of inhaling the poisonous gas, he became afflicted with an acute inflammation of the throat and eyes, which after some days assumed a chronic condition, and continued in some degree up to the time of the trial.

Defendant, through its responsible agent, Mr. Drew, admitted that he introduced the formaldehyde into the room, but claimed that his purpose in doing so was to disinfect the premises; complaint having been received by him as to their unsanitary condition. Upon cross-examination, he testified:

“Q. So that on the night of the 6th and 7th of May you knew that they were in there ?
l'A. No, sir.
“Q. You knew that they had slept in there before ?
“A. I did not know; I was told.
“Q. You just knew from what your night watchman had told you ?
“A. I imagined that they were in there.
“Q. You had a suspicion that they were sleeping in there ?
“A. Yes; I thought maybe they were sleeping in there.
“Q. You thought maybe they were sleeping in there on the night of the 6th and 7th of May ?
f,A. I thought maybe they were. * * *
“Q. How long did it take you to get this formaldehyde in the room ?
“A. Not any length of time. It takes as long as to bore a hole through a partition and afterwards pumping in with a bicycle pump. We shot it in. I don’t know how many times. I don’t know how much they hold.
“Q. What made you go around to the front door after you had fumigated it ?
“A. I wanted to see if they were in there. My night watchman told me that they were sleeping on the premises, he thought, and I imagined they were.
“Q. You thought it would be a good way to wake them up and move them out ?
“A. I thought if they wanted to get out they could. I wanted them out. I would like to have them out. I would not be trying to get them out if I did not want them out.
“Q. That is the reason you put it in there?
“A. Not that reason altogether, to fumigate the place, and at the same time if they wanted to get out they could. That is what I put it in there for; that is the purpose of it. I don’t ask you to believe that that is the reason I put it in there. I put it in there to fumigate the place, and incidentally to make them uncomfortable if they wanted to get out. I knew that they would not desire friendliness. I have made inquiry as to whether formaldehyde was poisonous or not of John Mahon.”

A member of the police force of the city, who visited the scene of the transaction at the time of its occurrence, testified:

“I had.a talk with Mr. Drew, and he admitted that they had been pouring it into the hole there to drive the Greeks out; and he said that he thought if he could get them outside that he could take possession.”

We think that this record shows conclusively that the claim of defendant that the poisonous drug was injected for the purpose of disinfecting the room was made in bad faith. But whether the claim was made honestly or otherwise, defendant’s liability would remain the same. The time and method chosen for the performance of the work, coupled with Drew’s knowledge of the fact that plaintiff was in the room, was sufficient to make the defendant liable for all damages resulting from the wrongful act.

Upon the question of damages, the court charged:

“ If you find that there was an injury to the plaintiff, but if you find that the injury was merely an aggravation of some other condition which existed prior to the time of his exposure to the formaldehyde, and if you find that the exposure merely aggravated a prior condition, then the plaintiff is not entitled to recover for such aggravated condition, because he has not counted for it in this case.
“Mr. Miller: There is no evidence of any pre-existing condition whatever. The evidence is that the man was healthy before. I submit that that is not in the case, your honor, and you should not charge it.
The Court: If you conclude from the testimony in this case that such exposure of the plaintiff to the formaldehyde, for the purpose that has been testified to in this case, could not produce any such effect as the plaintiff claims was produced, then you may consider whether or not the condition which he testified to as having occurred from that actually did result from that, or was an aggravation of some other condition which the plaintiff might not have been conscious of. If you determine, as a matter of fact,, that the exposure, which appears to have happened in this case, to these fumes would not cause such a condition as the plaintiff testified to, from what you have heard as to practical demonstration and scientific theories upon the effects of formaldehyde, then, if it is found to be some other cause, which you cannot account for, and if you find it is due to some other cause, which you cannot account for, the plaintiff would not be entitled to recover for that. Or, if you find that such an effect, with such an exposure, could not have possibly been produced, unless some other condition existed, then you may conclude that such other condition did not exist for that purpose. So I say, gentlemen of the jury, if you find that what the plaintiff has testified to be a fact as to his continued condition was not due to formaldehyde, but may have been due to some other cause, or may have been merely an aggravation of a prior existing condition, he cannot recover for that in this case, because there is no such damage as that counted upon in the declaration. I think I have covered all provisions of the case.”

This instruction was clearly erroneous. There is no testimony tending to show that plaintiff was ailing in any respect prior to the commission of the wrong complained of. On the contrary, the record shows that up to that time he never, during all his life, had had trouble with his eyes or throat. Campau v. North, 39 Mich. 606 (33 Am. Rep. 433). Upon the record as presented, but one question should have been submitted to the jury — that of plaintiff’s damage.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Steers, Mo Alva y, Stone, Ostrander, and Bird, JJ., concurred.


author: Steers, J.

text:
    CLEMENT v. BUCKLEY MERCANTILE CO.
    1. Duress — Contracts—Threats of Prosecution.
    . Although contracts entered into under duress are voidable, the law does not recognize duress from mere suggestion, advice, or persuasion between parties dealing at arm’s length.
    2. Same.
    It is necessary, in order to constitute duress, that the party coerced was so intimidated and influenced by the threats, if no actual violence, imprisonment, or force is charged, that he ceased to be a free moral agent and became incapacitated from exercising his free will power in the matter or contract under consideration.
    3. Same — Questions of Law and Fact.
    What constitutes duress is a question of law: whether duress appears in the particular case is usually one of fact.
    4. Same — Embezzlement—Compromise and Settlement.
    In a suit to set aside a transfer of property made by complainant and his wife, under alleged threats of a prosecution for embezzlement, in settlement of a claim made against him by his employer, the question of duress was not necessarily contingent upon complainant’s guilt or innocence.
    .5. Same.
    Evidence that complainant was an experienced man of affairs, that he was familiar with defendant’s manner of conducting its business and with its books, of which he had charge during his employment, that he settled the claim of shortage by transferring property to defendant, including his homestead,
    ■ and although the question of threatened prosecution was in dispute, that complainant was induced by defendant’s officers to make the compromise, as against denials by the authorized agents of defendant that they made any such threats, was insufficient to sustain the burden of proof resting on complainant.
    6. Same.
    As a rule duress cannot prevail to invalidate a contract entered into with full knowledge of all the facts, with ample time for investigation and opportunity for consideration, consultation, and reflection.

      7. Same — Homestead—Setting Aside Transfer — Want op Consideration-Husband and Wipe.
    But as to the wife who signed a conveyance of the joint homestead to avoid a prosecution of her husband, who also transferred to defendant enough personal property owned by himself to cover any shortage that the evidence disclosed to have existed, the court of equity has power to grant relief and set aside the deed for want of consideration.
    Appeal from Wexford; Lamb, J.
    Submitted June 17, 1912.
    (Docket No. 117.)
    Decided October 2, 1912.
    Bill by George M. D. Clement and Mildred Clement against the Buckley Mercantile Company to set aside a compromise and certain conveyances made in furtherance thereof. From a decree for complainants, defendant appeals.
    Modified and affirmed.

      J. W. Patchin and Wetmore <& Breen, for complainants.

      Pratt & Davis and Gaffney & Miltner, for defendant.
   Steers, J.

This is an appeal from a decree of the "Wexford county circuit court, in chancery, requiring defendant to return certain money, retransfer certain stock, and reconvey certain real estate, previously paid, transferred and conveyed to defendant by complainants in settlement of an alleged shortage of complainant George Clement, while in defendant’s employ. Complainants’ claim of right to such decree is based upon the charge that they were induced and impelled to make over said property to defendant through fraud and misrepresentation as to the amount of such alleged shortage and threats of criminal prosecution against complainant George Clement for embezzlement; also, that, as to complainant Mildred Clement, who joined in a conveyance of their homestead, there was absolutely no consideration.

Defendant, the Buckley Mercantile Company, is a corporation organized in October, 1908, with a capital stock of $20,000, engaged in general mercantile business at the village of Buckley, in Wexford county. Complainant George Clement participated in its organization. He was awarded 50 shares, $500 worth, of its capital stock, and entered its employ, being elected a director and secretary of the corporation. He was experienced in mercantile business and bookkeeping, had resided in Buckley for some years, where he had a general acquaintance, was on friendly terms with the members of the new organization, and was regarded as a desirable person to be actively employed by the organization. He did not pay for his stock at the time of taking it, but the necessary funds to purchase it were advanced to him by Glen A. Brigham, one of the principal stockholders, whom he was to repay within a year. He made the repayment at the end of 18 months. The directors elected at the time of organization were said Brigham, Carl S. East, Wilbur Earl, and said Clement, who continued in office up to the time Clement ceased his connection with the concern. East was chosen president and general manager, being also in active employ of the company. Clement, a secretary and bookkeeper, was put in charge of the books, accounts, and office work in general. Both of them went upon the floor with the clerks, acting as salesmen when time from other duties permitted and business demanded.

According to the by-laws of the corporation, Clement’s duties as secretary were to make reports to the directors and stockholders, issue notices, and keep minutes of meetings, and to countersign all certificates, contracts, checks, and other papers and instruments of the company. A treasurer was elected, as provided for in the by-laws, but does not appear to have performed the duties of such office, which were attended to for the most part in the office at the store by Clement, or under his direction. He was in charge of the cash, signed checks, kept the books, and looked after the accounts and business details of the concern. Defendant began business October 17, 1908. The following December a “ cash carrier system ” was installed and maintained until July 1, 1910, when it was abandoned, and replaced by a cash register. While the cash carrier system was used, a cashier’s desk was located in the office at the rear of the store, where a cashier was stationed to attend to the business as it was sent in over the carriers from the clerks on the floor. Slips were used by the clerks, on which business transactions with customers were minuted, and transmitted, together with any money received, to the cashier, who took the slips and money from the carriers, made change when required, looking after the cash, and preserving the slips during business hours. Four kinds of slips were used, indicating different transactions, known as “cash sales,” “charge sales,” “ cash paid out,” and “credit slips.” The cashier had separate spindles on which to put the slips of each clerk. These slips were furnished in pads of 50, each slip being numbered, running from 1 to 50 on each pad. The pads were issued to the clerks as needed. They could be, and were supposed to be, made in duplicate when the business minuted on them was transacted; a carbon copy being given to the customer. These slips, so made out, were the first and original records of the business. At the close of each day, the sorted slips would be gone over in the office, the cash counted and the day’s business figured up, balanced when possible, and eventually entered on the books. The cashier usually arranged and classified the slips, and footed up the cash sales the same evening, or the next morning.

Clement was usually the first one at the store in the morning, and it \yas his custom to then make a computation of the previous day’s business, count the cash, and put figures on a slip of paper, showing cash on hand, less items of cash paid out and change placed in the cashier’s drawer, and then attach this memorandum to the cash carrier slips of the day, which were subsequently laid away. Discrepancies between the cash received and the records were of common occurrence, and frequent errors arose, which were a topic of general discussion in the office. Clement was the responsible party in charge of the cash and books. He admits that such errors and discrepancies developed and continued, but attributes them to conditions existing in the store and the system of doing business; points out that different persons were employed as cashiers, some with and some without previous experience; that the safe containing the money, except that carried in the cashier’s till to make change, was left open during the day; that at times, when the cashier was absent, the clerks went to the desk and made their own change; that some of the slips issued to the clerks were never returned to the cashier’s desk, and no account was kept of those missing, without which a complete check on the business was impossible. It is contended in his behalf that, with the methods followed, it would be at least equally probable that some one else was, or might have been, responsible for any shortage which arose. The testimony as to the manner in which business was conducted is voluminous. Without going into further details on that branch of the case, it can fairly be said that, under the system adopted, and method of executing it, discrepancies naturally arose, and opportunities for leaks, difficult of detection, developed. Though Clement was in authority and had charge of these matters, he offers no testimony imputing dishonesty to, or raising suspicion against, any other employé.

Whether well founded or not, certain things done by Clement, and reports of goods taken from the store, and money received by him for the store of which they found no record in the books, resulted in other officers of the corporation becoming suspicious of him. They finally called a meeting on August 2, 1910, when he was told of their lack of confidence in his integrity, and asked to resign. Conditions and reasons were discussed with him, and he was told of certain things which were unsatisfactory and had aroused suspicion. He gave his explanation of such matters and protested his innocence, but stated he was willing to resign, and did so. He asserted his books were correct, and cash would balance within $2 or |3. It was proposed that his books be audited. He testified that he demanded that they be audited, offering to pay part of the expense of so doing. Others present at the meeting testified that, when the subject was broached, he asserted the books were right, and it was foolish to install a new set or to have his audited. It was subsequently decided to have an audit of the books and accounts. The Michigan Audit & Appraisal Company, of Grand Rapids, was engaged for that purpose. A representative of said company visited Buckley, and conferred with the directors, after which an inventory of stock was taken, and an accountant named Hardman put at work on the books and, records. Clement had expressed a desire to be present when the books were audited. He was notified when the auditing began, and invited to participate, but paid but little attention, and spent but little time there, though several times sent for and requested to be present. Hard-man, after going over the cash book, ledger, and day book, proceeded to take up the cash slips. He found them, or part of them, upstairs in a large box, mostly in loose order. Those for June, 1910, were together, with a string around them, each day’s slips intact. He also sorted out all of the May slips he could find, and proceeded to make a “reconcilement ” of those two months. He testified that he discovered, as the work progressed, discrepancies, irregularities, and shortage. When satisfied that his work up to that point had clearly developed such a result, he talked with certain of the directors, and reported what he had found. He never resumed or completed the audit, owing to the fact that the alleged shortage was settled by a transfer to defendant of property, to regain which this suit was brought.

Testimony given by the respective parties as to the circumstances and causes of such settlement and transfer is widely at variance. Clement testified that, subsequent to resigning his position with the company, he was visited by Hardman, who told him that the books and slips showed a shortage for which Clement was responsible, and asked, “What kind of a proposition have you got to make — to offer ?” stating that he had gone over the slips for May and June, and found a shortage of $450 or $500 for those two months, also an estimated shortage of $2,000 in the accounts, and that the inventory showed a loss of about $1,500. Clement further testified that he denied this, and told Hardman he was a liar, or the slips had been tampered with, because he knew the slips did not show any such an amount of shortage, and Hardman replied that it took only $25 to make an embezzlement case; that he had talked with Brigham, who was determined to “ shove him (Clement) over the road,” and had called up attorneys in Traverse City to start proceedings; that, protesting his innocence, but impressed by Hard-man’s statements as above given, and further talk of like import, coupled with assurances of friendship on Hard-man’s part and desire to help him, Clement yielded and said he would see what he could do; that, after talking over the proposition, they finally arranged that Clement would see East and Earl about the matter, and Hardman would also interview them in Clement’s behalf, and try to persuade them to intercede with Brigham; that Clement told his wife that evening of Hardman’s visit and. what he said; that both of them were greatly distressed and worried; that he saw East and Earl, as proposed, who seemed quite friendly and promised to see Brigham for him. Of this interview he testifies in part:

“In speaking about the shortage in the slips, as I told them at that time, I wasn’t guilty, but I couldn’t deny what Hardman had told me — that there was the slips. I had counted up the money in the mornings. There was the cash slips filed away every one, and I knew that they showed a discrepancy of a small amount, in the course of that time, would doubtless show more than $25, and I believe so yet, but I said: ‘ I am fast according to Hard-man’s statement, although I am not- guilty. I will turn over everything I have rather than take a trip over the road,’ and I named to them what property I had at'that time, and also made the statement to them that I believed that ‘murder will out,’and that, although I felt I was fast at that time, that I believed the guilty man would be found later.”

He further testified that Hardman also saw Mrs. Clement, and told her substantially the same story, relative to a shortage and threatened criminal prosecution, which he had told Clement; that, as a result of the various interviews, he met Brigham, East, and Earl the next day, and agreed with them on a settlement, under which he and his wife conveyed their homestead, consisting of a house and two lots, to defendant, and he paid defendant $300 in money and assigned to it his stock in said corporation.

Brigham, East, Earl, and Hardman all positively denied that there was any misrepresentation, attempt at intimidation, or threats of legal proceedings, civil or criminal, to induce a settlement. They testified that while the investigation and audit of the books was in progress, Clement was several times asked to be present and participate; that once or twice when requested to come and explain certain matters he did so, but remained but a short time; that, after the slips had been gone over for the two months, he was requested to meet with Hardman and investigate; that he promised to meet him at the store for that purpose, but failed to keep his promise. Hardman testified that, when Clement failed to meet him at the store, he thought it but fair to tell him what the books and records seemed to disclose; that he accordingly went to him and had an interview, informing him of the apparent shortage, and again asked him to go to the store and go over the matter himself, which he declined to do; that Hardman made no threats or suggestion of legal proceedings, but insisted that the records showed a shortage; that Clement first broached the subject of embezzlement, and asked Hard-man if they could arrest him on a criminal charge, to which Hardman replied he thought they could; that, after some further talk as to the nature of the amount of the shortage, Clement himself asked if the matter could be settled, and Hardman expressed the opinion that it might, although he had no authority to say; that he did not tell him that Brigham was proposing to shove him over the road, or had sent to attorneys to begin proceedings; that, at Clement’s request, he subsequently talked with officers of the company favorable to a settlement of the matter, and at a later time, when looking for Clement, he met the latter’s wife, who asked him about the trouble, and he told her of what he had found. East, Earl, and Brigham testified that Hardman had no instructions or authority from them to propose a settlement or to, make any threats, or offer any inducements to that end; that Clement came to them voluntarily, so far as they knew, and proposed to settle up his shortage, stating that, if they had found the slips, it was all off with him, and he might as well settle it up; that none of them knew or claimed to know the amount of his shortage, and so told him; that the settlement was made on his proposition and statement of what he was willing to do, even less being accepted than he at one time offered. Earl, who was instrumental in getting a position for Clement with the company and states they had been friends from boyhood, testifies:

“ I know that we talked the matter over that night, and I know that Mr. Clement rather, in a way, wilted when the matter of the slips was broached to him. We went home together, and I saw him the next Friday night. He had been at the store and inquired for me, so they told me, and from there he caught up with me in front of the barber shop, and asked me where I was going, and I told him I was going to the barn. He said, ‘ I will go over with you,’ and he did so, and he told me that Mr. Hardman had been out to see him, and he said, ‘ Will, I am up against a proposition. They have me. There is no use for me to deny this whatever, because,’ he says, ‘ you have proof for it.’ And he wanted to settle it up, and he begged me that night to do all I could to help him to settle it up, and while we were talking Mr. East came from supper, and was going by, and he hollered for Mr. East to come over there, and he repeated the same words several times that night — that there was no use for him to deny it because he was caught, and asked Mr. East and me to go to Brigham and see what he thought about it. I made the remark to Clement that he knew better than we how much he had taken, and not to make a proposition to pay back more than he honestly thought he had taken, and left it to him to make the proposition as to what he wanted to turn over, to make good, and it was left in that way. To that he made the proposition that he would turn over his house and lot, his $500 worth of shares of stock in the company and he said he had $500 in the bank. I repeated to him several times, and said to him: ‘ Now, George, don’t pay back $1 more than you honestly think you have taken.’ And Mr. East said to him right there: ‘ George, I would rather lose $500 of my own money than to think I had taken a dollar from you that belonged to you.’ And he asked us, begged us to go and see Mr. Brigham, and see what we could do about it.”

The record as a whole leads inevitably to the conclusion that the investigation which was going on, and what was said and done in that connection, exercised a quickening influence' on complainants, and resulted in their reaching a frame of mind where a settlement was desired. Was what was said and done adequate to deprive them of their free will so that their acts in settling were not of their own normal volition? To constitute duress such must have been the case.

The law does not recognize duress by mere suggestion, advice, or persuasion, especially where the parties are at arm’s length and represent opposing interests. 9 Cyc. p. 443. That a contract, entered into under duress is voidable at the instance of the party so constrained, is unquestionable.

There is no proof here, or even charge, of imprisonment, arrest, physical force, or violence. The only duress claimed is per minas — by threats and intimidation. To constitute this, it must appear that the party coerced was so intimidated and moved by the threats made as to cease to be a free moral agent, and became so bereft of those qualities of the mind essential to entering into a contract as to be incapacitated to exercise his free will power in that connection.

“Assaid in Wolff v. Bluhm, 95 Wis. 257, (70 N. W. 73, 60 Am. St. Rep. 115), the condition of mind of a person produced by threats of some kind, rendering him incapable of exercising his free will, is what constitutes duress. The means used to produce that condition, the age, sex, and mental characteristics of the alleged injured party, are all evidentiary, merely, of the ultimate fact in issue, of whether such person was bereft of the free exercise of his will power.” Galusha v. Sherman, 105 Wis. 263 (81 N. W. 495, 47 L. R. A. 417).

While what constitutes duress is a question of law, whether duress exists in a particular case is a question of fact. Galusha v. Sherman, supra.

It was the opinion of the learned circuit judge that—

“To sustain the transfer of the property in question, it should be made to appear from the proofs that the complainant, George M. D. Clement, is not only guilty of the crime of embezzlement, but also that the amount embezzled is approximately the value of the property transferred by way of settlement.”

We do not think this case turns on the question of whether Clement would, or should, be convicted of embezzlement, if criminally prosecuted. The questions raised by the pleadings and proofs are duress, fraud, and want of consideration. These are not necessarily contingent on his being guilty of crime.

Clement himself does not testify that either East, Earl, ór Brigham made threats of prosecution. They severally deny doing so, or authorizing it to be done. He does not deny that he first made overtures of settlement to them. He admits that he was invited to examine the books and investigate for himself. When the delinquencies testified to were called to his attention and he was ■ asked to explain, and threatened with prosecution, as he testified, the investigation was in progress, and not completed. It can-be inferred that he should, and assumed that he would, know what the facts were, and what the ultimate result would be, better than Hardman or any other person. Whatever the cause, it is undisputed that he went to the officers of the company before the audit was concluded, and made a proposal of settlement which was accepted, and which resulted in discontinuance of the examination. He was a man of mature years, himself a bookkeeper, world wise, experienced in business matters and other activities involving responsibilities and dealings with, men of various classes, had been in politics, running for and holding office, having at one time been president of the village in which he lived. It would seem more probable that such a man, with such knowledge and experience, if innocent, would not only have protested his innocence and given the lie to those charging him with crime, as Clement testified he did in this case, but would have absolutely refused any compromise, and insisted on further investigation and vindication. If it was true that the worst which could be shown was a bad system and loose business methods resulting in confusion and losses, or even careless bookkeeping, it would not be expected that an innocent man of his experience in dealing with men would become so terror-stricken as to be bereft of judgment and volition by the statements, or threats of another bookkeeper, having manifestly much less knowledge of the books and business under discussion than himself. Assuming that he, the officers of the company, and Hardman are equally credible and equally interested witnesses, he has failed to establish his claim by a preponderance of evidence.

The burden of proving duress is upon him. So far as interest in this case is shown, his is apparently greater than theirs, and Hardman’s the least.

As a rule, duress will not prevail to invalidate a contract entered into with full knowledge of all the facts, with ample time and opportunity for investigation, consideration, consultation, and reflection. Clement knew the facts in this case, was" given ample opportunity, and invited, to investigate, and was free to consult with whomsoever he saw fit. We do not think the testimony, considered as a whole, sustains his claim of duress as to himself. It comes nearer to that point when applied to Mrs. Clement. As to her there are no considerations of par delictum. She, so far as shown, was an innocent party, ignorant of the true facts, and signed the deed of her home without any money consideration, through fear and anxiety for the safety of her husband, under circumstances which, to her, were at least tainted with veiled but implied threat of impending prosecution and disaster to him.

But, without determining the question of whether or not all the essentials of technical duress, as defined by the authorities, are clearly shown, there are equitable considerations that enter an adjudication of her rights.

“ Courts of equity grant relief in many cases where there is no legal duress, in strict acceptation of the term, and where the wronged party would perhaps be remediless at the common law.” Meech v. Lee, 82 Mich. 274 (46 N. W. 383).

The proofs in this case fail to show a shortage even remotely approximating the value of the property transferred upon the settlement. The only items in relation to which any substantial proof was introduced total $555.65. The property turned over by complainants is shown, without controversy, to be worth $2,800. The homestead was valued at $2,000. The stock and money paid by George Clement more than covers any shortage of which there is any evidence, beyond mere suspicion, conjecture, and inference from his conduct, irrespective of whether they had brought pressure to bear and made threats or not, and assuming that when the settlement was made defendant’s officers did not know the amount of the shortage, but accepted what Clement proposed, they nevertheless knew that he and his wife were actuated by fear of exposure and criminal prosecution, for they admit that he told them so.

It is urged that defendant, by consenting to a settlement and abandoning its investigation at the solicitation of Clement, lost the means of conclusively establishing his liability, and should not now be put to a disadvantage and compelled to sustain a loss as the result of such forbearance. So far as the testimony discloses, the books, slips, accounts, and other means of investigation possessed at the time of settlement are yet available; some of them were produced at the hearing. It does not appear that the condition of the parties has changed in that respect.

A conveyance of the homestead by the husband without the signature of the wife is void. The law preserves her rights in the homestead as absolutely as though she had full title to it. She owed defendant nothing. No losses are shown by reason of her husband’s shortage which are not made good by the personal property he surrendered. Under such circumstances, her participation in a conveyance of the homestead was without legal consideration. As to her, the decree of the trial court, canceling the conveyance of the homestead, is affirmed. As to complainant George Clement, the decree is reversed and bill dismissed.

A decree may be prepared accordingly, without costs to either party.

Moore, C. J., and McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


text:
    SULLIVAN v. GODKIN.
    1. Evidence — Logs and Logging — Measurements—Estimates.
    Where plaintiff’s case, based on a trespass to lands and removal of timber, depended upon proof as to the value and quantity of timber cut by defendant, and one of the witnesses secured by plaintiff to estimate the amount of timber so removed had died after making the-measurements and before trial, a book showing the detailed figures of such estimate, identified by the other witness who had assisted in making it, was admissible in evidence after being fully proved, the witness identifying the handwriting of the deceased and testifying to the correctness of the measurements.
    2. Appeal and Error — New Trial — Exhibits, Loss of — Stipulations.
    Plaintiff’s attorney, having charge of three books offered in evidence in -the trial court in which plaintiff secured a judgment, became seriously ill and was unable to give any information or aid to find them. The record showed that on the trial defendant’s attorney objected to the production of these exhibits on the ground that they contained numerous erasures and alterations tending to impeach the correctness of the entries; also that the parties had stipulated when preparing the record on appeal that the books should be produced by plaintiff’s attorney in the Supreme Court, and filed with the clerk or delivered to defendant’s attorney, stating that the exhibits would not be copied so as to show their appearance, and an examination thereof was necessary to an understanding of the points raised. The books having become mislaid or lost, plaintiff failed to comply with the stipulation, without bad faith or fraud on the part of his attorneys. Held, that the proper remedy was not the dismissal of the writ of error, but the granting of a new trial.
    Error to Bay; Searl, J., presiding.
    Submitted June 18, 1912.
    (Docket No. 11.)
    Decided October 2, 1912.
    Trover by Thomas G. Sullivan against John Godkin for the wrongful cutting and conversion of certain timber. Judgment for plaintiff. Defendant brings error.
    Remanded for new trial.

      Frank S. Pratt, for appellant.

      Davitt & Davitt (Weadock & Weadock. of counsel), for appellee.
   Steere, J.

This is an action in trover, brought to recover the value of certain white pine and Norway logs, alleged to have been unlawfully cut and taken by defendant from certain lands located in town 41 north, of range 13 west, Schoolcraft county, Mich., near which defendant owned a sawmill and was engaged in lumbering operations.

Defendant being a resident of Bay City, Mich., this action was commenced and tried in the circuit court of Bay county, resulting in a verdict and judgment in favor of plaintiff for $1,300.

It appears that on Septemoer 13, 1890, defendant purchased from one Henry Gamble the white pine and Norway timber standing, lying, and being on certain lands in Schoolcraft county available for his mill, amongst which were the descriptions from which it is claimed the logs in question were taken. By the contract of purchase, the defendant had 10 years, until September 13, 1900, in which to cut and remove the same. Gamble subsequently made disposition of these lands by proceedings giving rise to various entanglements, of which the details are unimportant here. On December 31, 1902, he executed a confirmatory instrument, by which he assigned to plaintiff all rights of action and all interest in timber growing out of Gamble’s ownership of said lands, reciting in the latter conveyance that plaintiff had theretofore acquired all Gamble’s right, title, and interest in said lands, that it was then the intention that he should not only acquire the land and timber thereon, but any timber cut therefrom, and any right of action Gamble had for trespass committed thereon; said assignment, or conveyance, of December 31, 1902, being made in confirmation thereof, » and “to convey to said Sullivan any and all my right, title, and interest (if any there be) in or to any of said timber, and all right of action which I may have for trespasses committed on said lands or any part thereof.”

As the case appears from the record to have developed on the trial, the most serious matters in controversy were: How much timber, if any, was cut from said lands subsequent to September 13, 1900, the value of timber claimed to have been cut and removed after said date, defendant’s claim that the time in which he could cut and remove the same had been extended, estoppel of plaintiff, and the good faith of defendant. Much testimony was introduced on these various subjects, with many objections made and exceptions taken. <

In order to recover, it was imperative for plaintiff to not only prove the trespass, but also the amount and value of the logs cut and taken after September 13, 1900, at which time, according to the terms of defendant’s contract of purchase, the right to cut and remove expired.

Three witnesses, who were in the employ of .defendant while he was lumbering the tract, gave testimony tending to show that the work was continued after the date when the time limit had expired, and that the logs were cut, banked, and taken to defendant’s mill from certain descriptions after said September 13, 1900. The logs so taken if any, were manufactured into lumber by defendant, and, when plaintiff sought to ascertain the trespass, were unavailable for measurement. A so-called “stump measurement” for trespass, on the descriptions claimed to have been lumbered after the contract expired, was made, in 1902, for plaintiff by two experienced men named Brown and Blair. Brown had worked as foreman on the lands for defendant; was familiar with the descriptions and conditions. They proceeded to examine, count, make measurements, and ascertain the quantity and kind of logs taken, according to the usual methods of lumbermen in estimating trespass. A record of their work was made, as it progressed, in small tally books carried with them for that purpose. The entries were made by Blair, whose téstimony was not available; he having been killed after the trespass was estimated and before the trial. The tally' books, three in number, were produced, and Brown, the only living witness having knowledge of the measurements and manner of estimating the trespass and making the entries in the books, testified in relation thereto. Brown had been a lumberman and landlooker for 30 years, and his competency was not questioned. He gave evidence identifying the lands as those from which the timber in controversy was cut and removed, and stated the time when certain of such work was done, told of going with Blair upon the various descriptions and estimating the trespass, and identified the books produced as the ones used by them in that work. He testified, in part, as follows:

“We measured with a tape line and rule. We measured from the stumps to the top were it was cut off. We measured the butts where they where cut off — the stumps, certainly. There was a memorandum made of the measurements. They were all put down in a book. I had one end of the tape line, and he had the other; and when I would halloo out how many feet, he would put down and halloo back how many feet; that is, the amount he put down in the book. I saw him make some figures, but did not see him make them all. I saw him make a good many. * * * The pages in the book are all just the same. They are all Blair’s; that is, the first three columns. * * * This is where he had the white pine, and then he had Norway. * * * These words were written at the same time as the memorandum made by Mr. Blair in the woods, all except the fourth column of figures. * * * Yes, sir; I was there and saw him make them myself. * * * I was at one end of the tree and Blair at the other when we measured the length. Blair had the book. I didn’t go toward him to see if he put down the figures every time.”

The method of measuring followed by them was similar to that described in Seligman v. Ten Eyck, 60 Mich. 267 (27 N. W. 514), in relation to which this court said:

“We think the evidence of scaling was not incompetent. From the nature of the business, it cannot always be possible to show more than was shown here. Smith v. Kelly, 43 Mich. 390 (5 N. W. 437).”

When the three tally books were first offered in evidence, many objections were interposed and argued. One column of figures, the fourth on the various pages, was not in Blair’s handwriting, but was made by plaintiff in computing the board measure from the butts, tops, and length of the trees shown in the tally columns made by Blair. Among other objections, it was urged that only on the top of one page was there anything in Blair’s handwriting to show where the timber represented in succeeding pages was taken from; ‘ ‘ that the original descriptions testified by Mr. Brown to be in Mr. Blair’s handwriting, and every one of them, has been changed, and the descriptions show erasures, and there is not apparently a description originally written there;” also “that it appears the measurements were not made in the usual course of business at the time of lumbering, but were made for the purpose of testifying in this litigation, and there is no presumption in favor of the correctness of the entries made by Blair, now said to be deceased.” A reoffer of the books was finally made, limited to the pages marked by the stenographer as identified. They were admitted in evidence against renewal of the objections previously interposed, and the further objection that “ Book 3 ” was so mixed up that, without • describing the subdivisions and erasures, it was wholly incompetent.

Counsel for defendant urges that the books were not properly proven and were incompetent as evidence, under the decision of this court in Sovereign v. Mosher, 86 Mich. 36 (48 N. W. 611). In that case a witness named Reynolds testified to scaling certain logs in company with a man named O’Malley; each standing at a separate end of a skidway, making measurements and estimates of quality. O’Malley would call off measurements and defects from his end of the pile, and Reynolds would note this, and then make measurements and observe defects at his end. The court there said:

“ O’Malley was not produced as a witness, nor any reason given for his absence. The scale of Reynolds, under these circumstances, was incompetent. It was the duty of plaintiff to produce O’Malley as a witness, if it were in his power to do so.”

In that case plaintiff had violated the elementary principle that the best and most direct testimony must always be produced; and where, for any reason, that becomes impossible, such fact must be shown, before other evidence is admissible. In this case it was shown that Blair was deceased, and his testimony not available. We do not think the authority cited controlling here.

It is stated that these tally books could not be found when the bill of exceptions in this case was settled. The printed record contains the following stipulation:

“These three books, marked as Exhibits A, B, and C, by the stenographer taking Mr. Brown’s deposition, are referred to in this record as ‘Book 1,’ ‘Book 2,’ and 4 Book 8.’ And, inasmuch as a copy of the same cannot be made, so as to show the appearance of the books, and the copy attached to the bill of exceptions, and an examination of the original books being necessary to an understanding of the points raised, it is therefore stipulated and agreed that the original books shall be filed with the clerk of the Supreme Court, or delivered to the attorney for defendant, on or before August 15,1911, and that such original books shall be used upon the hearing in the Supreme Court as constituting a part of this bill of exceptions and the record of this case.”

Counsel who represented plaintiff in this court were unable to submit said books to court and counsel at the hearing, or before, and they have not since been produced pursuant to the foregoing stipulation. It is admitted that there is an entire absence of evidence of any intentional suppression of them; the unfortunate circumstance being that counsel who originally had charge of and tried the case for plaintiff has since been unable, from serious illness, to give any aid or information in that connection, so that neither he, plaintiff, nor present counsel are blameable for the nonproduction of the books.

The fact remains, however, that the record is deficient in that important particular. This court does not have the benefit of a personal examination of the books themselves, or of even a copy. Strenuous objections were made against them in the court below, and are urged here, on the ground of unexplained erasures and “suspicious alterations ” manifest on inspection; and it was .stipulated that an examination of the original books was necessary to an understanding of the points raised. Such being the case, it follows that defendant’s objections to their admission, based upon alleged erasures and alterations, cannot be understandingly heard in this court upon the facts as they were presented in the trial court.

Since the case was removed here by writ of error, a motion has been heretofore made by defendant in relation to these exhibits, asking this court to intervene and order plaintiff to either serve the same on counsel for defendant, or file them with the clerk of this court within a certain time, and in default thereof that the judgment of the court below be reversed. The motion was not granted, but it was held that it should be treated, at the option of the appellant, as an application to remit the record, to enable either party to apply to the trial judge for such amendment to the bill of exceptions as might throw further light upon the contents of said exhibits; further consideration of the legal questions involved being deferred until final hearing. Sullivan v. Godkin, 167 Mich. 663 (133 N. W. 481).

The situation is manifestly such at the present time that the usual course of remanding the record to the court below, for additions or corrections, is futile. Conceding that no culpability in fact for the nonproduction of the exhibits attaches to any one, this court nevertheless cannot look behind the record. Taking it as presented, we find therein a stipulation that an examination of the original books is necessary to an understanding of the points raised; that these exhibits (which were the only definite evidence of the amount of timber involved in the alleged trespass) were to be filed with the clerk of this court, or delivered to defendant’s attorney, on or before August 15, 1911, to be used on the hearing of this case. The provisions of the stipulation have not been complied with. They were plaintiff’s exhibits. Defendant is entitled to their production. Their absence prevents him from presenting, as he has the right to, what he claims is a serious and vital question, and in'relation to which this court does not have before it that which, according to the stipulation, is necessary to an understanding of the points raised.

We think, as between the two, plaintiff must be held responsible for the admittedly imperfect record in this court, to the extent of "entitling defendant, as the only course which the peculiar circumstances justify, to a new trial.

The judgment is therefore set aside and a new trial granted, without costs to either party.

Moore, 0. J., and McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


text:
    CARVER v. SHERMAN.
    1. Sales — Executed Sale — Contracts—Title.
    Under the terms of a contract for the sale of a quantity of apples, at a stated price, to be shipped within fifteen days and paid for when loaded, weights and grades to be guaranteed by plaintiff, after defendant had accepted and paid for the greater part of the apples, title passed as to the remainder of the property which plaintiff had packed in barrels and tendered to defendant; so that damage to the fruit by frost thereafter was not plaintiff’s loss, and she was entitled to recover the difference between the price at which she resold and the contract price.
    2. Same — Inspection.
    Though inspection of the apples had not been made by defendant, nothing further remained for the seller to do except deliver them, and title passed at the time of executing the contract.
    3. Same — Appeal and Error.
    Thus any possible error in the charge of the court to the jury upon the duty of plaintiff to protect the apples, being cured by the verdict for plaintiff, who was, in fact, entitled to a directed verdict, was not prejudicial.
    Error to Allegan; Padgham, J.
    Submitted June 19, 1912.
    (Docket No. 66.)
    Decided October 2, 1912.
    Assumpsit by Ella Carver against Ernest F. Sherman for the price of certain merchandise. Judgment for plaintiff. Defendant brings error.
    Affirmed.
    O. 8. Cross, for appellant.

      Charles Thew, for appellee.
   Brooke, J.

Plaintiff made a contract to sell her apple crop to defendant. Defendant first made an oral offer some time in October, giving plaintiff until the following Saturday night to accept. The offer was accepted by plaintiff in a telephone conversation.

Following the telephone conversation, defendant wrote a letter to plaintiff, as follows:

“Mrs. Carver,
“Hopkins, Michigan,
Dear Madam:
“I herewith hand you confirmation of your apples bought of you October 29, at 5:50 p. m. as per your guarantee of packing them, over the ’phone. Packing to be strictly as represented, as you wish to establish a reputation for packing; same to be loaded as soon as possible, at the following prices: $3.50 per barrel for No. 1, Baldwins, Starks and Spies; $2.80 per barrel for No. 2, Baldwins, Starks, and Spies; $1.80 per barrel for No. 3, Baldwins, Starks and Spies.
“Yours respectfully,
“E. F. Sherman.” .

The “ confirmation ” referred to in and accompanying the foregoing reads:

“Allegan, Michigan, Nov. 2, 1910. “Mrs. E. Carver,
“Hopkins, Michigan.
“ I confirm purchase of you this date by ’phone about three cars of apples at $8.50, $2.80 and $1.80 f. o. b. your station, weights and grades guaranteed by you, shipment within fifteen days. I will send check for value of car less ten per cent, to cover any contingencies, balance to be remitted when car has been unloaded. Remarks: Enclosed find check for one hundred dollars. If the above is not in accordance with your understanding, wire or ’phone at once.
“ E. F. Sherman, per G. N.”

Upon receipt of this letter and confirmation, plaintiff testifies that she called defendant by telephone and objected to the use of the word “ unloaded ” in the confirmation, and that defendant told her the word should have been “loaded.”

Two days later defendant wrote plaintiff another letter:

“November 4th, 1910.
“ Mrs. E. Carver,
“Hopkins, Michigan.
Dear Madam:
Since talking with you over the ’phone concerning the price of apples, I have thought different of the proposition you made then than I did at the time I was talking with you over the ’phone. Now I want to do what is right and fair, and will do it, and I won’t abuse you. When I was over there I had inquiries for both bulk and barrel apples in car load lots at prices that would have netted me a profit, and also up to last Saturday night, when you ’phoned me and we talked it over, that you would take my offer. That evening I quoted your bunch out and on Monday, by return mail and wire, from different markets that they were all decidedly lower, and I did not secure a single order. Now, had you accepted my proposition when there, I could have sold them and had them out of the country, and now I will be obliged to wait for the reaction of the markets before I can care for them. It may be tomorrow or it may be in a week, before I can procure an order. Your suggestion was for me to send you $400.00 as payment on same, or pay for each car as loaded. I told you I would do so. Upon further consideration I have decided that I will pay you for them as they are loaded out, as per your request, but I could not advance that much. Your proposition was too one-sided, but I will pay for them as they are loaded. Trusting that this will be satisfactory, beg to remain,
“ Yours truly,
" E. F. Sherman.”

This contract provides for delivery at Hopkins Station within 15 days. If the letter of November 4th is considered as a modification as to time of delivery, to which plaintiff assented, it may be said that the time for delivery was extended one week. At the time the contract was made, the apples were all picked, packed in barrels, and ready for delivery. Nothing remained to be done by plaintiff, except to deliver them at the station when requested by defendant.

Under the contract evidenced by these writings, plaintiff delivered to defendant, and defendant accepted and paid for, all the apples covered by the contract, except 105 barrels of No. 1 quality. These deliveries were made, from time to time, as requested by defendant during the month of November; the last being on November 29th.

The record shows that plaintiff repeatedly urged defendant to take the apples away, as they were stored in an open shed, and, as the season progressed, were liable to become frozen. This actually did occur on December 5th. Plaintiff seems to have made every reasonable effort to prevent the apples from freezing by boarding up the shed and protecting it with quilts and carpets. Two stoves were put up in the shed, and fires were kept up. In spite of these precautions, however, the 105 barrels remaining were, to some extent, frozen on the night of December 5th. On December 10th 50 of the 105 barrels were delivered at a car furnished by defendant. Upon inspection, he found that they were frosted, asked plaintiff to take them back, and refused to accept the other 55 barrels. Plaintiff thereupon, after notice to defendant, sold the 55 barrels at public auction. They brought $2.35 per barrel. Plaintiff then brought suit. Defendant, after suit was brought, paid plaintiff for the 50 barrels at the rate of $2.35 per barrel. She recovered a judgment for $146.25; that sum representing the difference between $2.35 and $3.50 per barrel upon 105 barrels, together with some $16 expended in caring for and making the resale of the 55 barrels.

Defendant’s counsel makes the following claim:

“From the above writing and conversation, we conclude that the contract was that the defendant bargained to purchase about three car loads of plaintiff’s apples which would grade No. 1, 2, and 3, to be paid for when they should be delivered by plaintiff f. o. b. Hopkins, and inspected as to grade and accepted by defendant, delivery to be made within a reasonable time after the 29th day of October, 1910, the apples to remain the property of the plaintiff until the same were delivered, inspected, accepted, and paid for by defendant.”

We are unable to agree with this construction of the contract. Both parties rely upon the case of Lingham v. Eggleston, 27 Mich. 324, which, since its appearance, has been regarded as a leading case upon the question of when title passes. It was there held, and the same doctrine was enunciated by the same learned judge in the case of Byles v. Colier, 54 Mich. 1 (19 N. W. 565):

“ That the question whether a sale is completed or only executory is usually one to be determined from the intent of the parties, as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale; that where the goods sold are designated so that no question can arise as to the thing intended, it is not absolutely essential that there should be a delivery, or that the goods should be in deliverable condition, or that the quantity or quality, when the price depends on either or both, should be determined; these being circumstances indicating intent, but not conclusive; but that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things, in the absence of anything indicating a contrary intent, is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they appear to be in a state in which they may be and ought to be accepted ” — citing cases.

In the case from which this quotation was taken, the title was held to have passed, although a further inspection was necessary, in order to determine how much remained to be paid. In the case at bar, the defendant, at the time of making the contract, had made a partial payment, and had upon two occasions visited the orchard of plaintiff during the packing operations. Moreover, by the terms of the contract, “weights and grades” were guaranteed by the plaintiff. Nothing further was to be done by the vendor in respect to the property, except to deliver it to the vendee at his convenience, when so directed. Lingham v. Eggleston, supra. See, also, Sandler v. Bresnaham, 53 Mich. 567 (19 N. W. 188); H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299 (87 N. W. 268, 55 L. R. A. 301, 92 Am. St. Rep. 452); Julius Kessler & Co. v. Veio, 142 Mich. 471 (106 N. W. 73).

Under the terms of this contract’1 and the acts of the parties thereunder, which are not disputed, we are of opinion that the learned circuit judge should have directed the jury that the title to the property passed to the defendant at the time the contract was made. The reason for the delay in shipment clearly appears from the testimony of defendant. He said:

“ Up until November 20th, prices were very low. I could have sold these apples at any time during the month of November and the first part of December, if I had wanted to take the low price. My idea in holding the apples was to get a better price for them.”

The question of whether plaintiff used reasonable dili-. gence to prevent the fruit from freezing seems to have been presented to the jury under proper instructions, although other portions of the charge might indicate a practical direction in favor of plaintiff. Inasmuch as upon the record the plaintiff was entitled to a directed verdict, the errors, if any, contained in the charge, are without prejudice.

Error is assigned upon the admission of certain testimony and the rejection of certain other testimony. These assignments have been examined, but are found to be without merit.

The judgment is affirmed.

Moore, C. J., and Steere, MoAlvay, Stone, Ostrander, and Bird, JJ., concurred.