text:
    COSSETT v. O'RILEY.
    1. Real Property — Record—Notice—Mortgages.
    The filing of a lis pendens, in a suit to foreclose a mortgage on realty, is notice of the suit to an owner who obtained title after the execution of the mortgage.
    2. Same —Fraud—Vendor and Purchaser — Land Contract-
    Merchantable Title.
    A vendor of real property who agrees to convey a merchantable title is not relieved of the effect of false representations concerning the title, although he supposes the statements to be true.
    3. Same — Fraud—Rescission.
    But if he is able to make the title good and offers to do so, the contract is not subject to rescission for the fraud.
    4. Same — Damages for Failure to Place Vendor in Statu Quo.
    The vendor, being entitled to be replaced in statu quo, was entitled to have the amount of plaintiff’s recovery decreased by such damages as he could show were sustained in purchasing a portion of the property, which he contracted to convey to the plaintiff, from a third party as a part of the transaction, where he had tendered a warranty deed and the defect in title was not pointed out to him.
    Error to Lenawee; O’Mealey, J.
    Submitted November 12, 1909.
    ( Docket No. 58.)
    Decided March 5, 1910.
    Assumpsit by Emery W. Oossett against John O’Riley, Sr., for money paid upon a land contract. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Fellows & Chandler, for appellant.

      Arthur P. Hicks and Smith, Baldwin & Alexander, for appellee.
   Moore, J.

The parties entered into a land contract on the 14th day of October, 1903, by which the plaintiff agreed to purchase the defendant’s farm for the sum of $4,200. Two hundred dollars was paid at the time of the execution of the contract. Plaintiff attempted to rescind this contract on the ground of fraud, and brought this action to recover the amount paid by him on the contract, with certain expenses incurred by him. He obtained a judgment, and the case is brought here by writ of error.

It is the claim of plaintiff that defendant represented that a lake which was on the farm did not overflow the land; that there was a tile drain in a ravine on the farm; that the house was in good condition, excepting the kitchen which needed repairs; that the title was good; and that these statements were untrue and fraudulent.

With reference to the state of the title, the testimony tends to show that when Mr. McCullen was the owner of this farm he executed a mortgage for the sum of $2,350 to Levi R. Peirson, who transferred it to his typewriter, who transferred it to an attorney of Hillsdale, who transferred it to a banker of that city. After the death of Mr. Peirson, his widow, Mrs. Peirson, filed a bill to set aside these transfers, and also to declare a lien on some real estate purchased by Mr. Peirson for his typewriter. At the time of filing this bill, notice lis pendens was filed in the office.of the register of deeds. Upon the hearing of the case her bill was dismissed, and she appealed to the Supreme Court. Pending the appeal it was agreed between the parties to that suit, acting through their respective solicitors, that the holder of the mortgage should collect, and if Mrs. Peirson succeeded he should respond in a money decree. (There is no proof that plaintiff knew of this agreement when he attempted to rescind.) He thereupon collected the mortgage and discharged the same of record. The arrangement for collecting the money by the banker was not in writing, but was testified to by one of the solicitors for the defendants in the Peirson Case. The Peirson Case was still undisposed of by this court at the time of the controversy involved in the present case. The solicitors for Mrs. Peirson were the attorneys for Mr. O’Riley, in the negotiations between him and plaintiff when the plaintiff declined to carry out his contract for the purchase of the farm. The case was finally disposed of in this court and is reported in 137 Mich. 158 (100 N. W. 458), where the decree of the court below, dismissing the bill of complaint, is affirmed.

It is claimed by defendant that Mr. O’Riley, through his son, offered to perfect the title, which offer the plaintiff declined. Plaintiff disputes this. The contract above referred to contained an agreement to convey a good title to the land in question. At the lake, a portion of which was on the farm, was an abandoned resort property, owned by one Perkins, containing about three acres of land with a right of way across the farm, which was not fenced from the public highway. It was agreed defendant should purchase this resort property of Perkins for $300 and resell the same to plaintiff at the same figure. Defendant did purchase it, and he and plaintiff a few days later entered into a written contract for its purchase by plaintiff in accordance with the agreement. It is the claim of defendant that this purchase was a part of the same transaction involved in this suit. The premises were in possession of a tenant at the time the contract was made, plaintiff bought out the tenant, installed his son-in-law on the farm, but did not move there himself until the March following. Soon thereafter he notified the defendant he would not take the farm, claiming to rescind because of the representations above referred to, which he claimed were false and fraudulent. The defendant claims that plaintiff did not specify what defect there was in the title; did not so claim until his case was closed and defendant was nearly through with his case, when, upon the case being reopened, he so claimed. The defendant claims that he made no untruthful statements, and that he offered to, and was in a position where he could, perfect any defect in the title; the only claimed defect in the title being the notice lis pendens.

Defendant discusses the questions involved under the following heads:

First. Title.

Second. Did the representations with reference to title which were afterwards embodied in the contract, if made in good faith, constitute actionable fraud F

Third. Abatement from plaintiff’s claim by reason of his inability to place defendant in statu quo.

Upon the question of title he insists that the filing notice lis pendens in the Peirson Case was not constructive notice of that suit so far as the mortgage was concerned. We will content ourselves with saying we think this contention was not well taken. It was the claim of defendant that he tendered a good deed of the premises and advised plaintiff that if there was any apparent defect in the title he would cure it.

The court was asked to charge as follows:

“ (19) I charge you that if the defendant offered to perfect the title to these premises, and you further find that the defendant could have perfected the title, then and in that case the plaintiff could not rescind the contract for such defect.”
“ (22) If Mr. O’Riley believed he had a good title to the premises in question, and stated to Mr.. Cossett before the contract was made that his title was good, that statement was not such a fraudulent statement as would be fraud, and permit plaintiff to rescind the contract for that reason, and even though you should find that he did make such statement as to his title, and it was not true, it would not be fraud and could not avail plaintiff in this action unless defendant actually knew that such statement was false.”

The court declined to give either of these requests and charged the jury as follows:

“(2) If you find from the evidence in this case that, at the time the parties to this suit met at the bank in Hudson, the plaintiff was ready, willing, and able to carry out and perform the contract on his part, you are instructed that he was entitled by the terms of the contract to a good and sufficient warranty deed of the premises described therein, conveying to him a good, merchantable title to said lands, free and clear of and from all liens and incumbrances, up to and including that date. By a ‘ merchantable title ’ is meant one that would pass current and without question among purchasers of ordinary prudence and caution, and the plaintiff was not bound to accept any other or different title than the one required by the contract.
“(3) If you find from the evidence in this case that, at the time the defendant bought the farm mentioned in the declaration, there was a mortgage of $2,300 upon it, held by Levi R. Peirson, and that he afterwards paid said mortgage and procured a discharge thereof from one Chauncey Cook, and that Mr. Cook’s title to the mortgage depended upon the validity of an assignment of the same, executed by said Peirson to Miss McNeal, and from Miss McNeal to Mr. Barre, and from Mr. Barre to Mr. Cook, and that there was a suit then pending on appeal and undetermined in the Supreme Court as to the validity of the assignment from Mr. Peirson to Miss McNeal, you will then determine from the evidence and the instructions which I have given you whether the defendant, at the time of the meeting in the bank, tendered to the plaintiff a good, merchantable title to this farm, and one which he was bound to accept as a performance by the defendant of his obligation under the contract to the plaintiff. If you find that he did, then upon that branch of the case the plaintiff cannot recover in this suit; but, if you find he did not tender a good merchantable title to the plaintiff on that occasion at the bank, then upon that branch of the case the plaintiff would be entitled to recover.”

We do not think, under the facts disclosed by this record, that defendant was entitled to have his 22d request given, because defendant had agreed in his contract that plaintiff should have a good title. On the other hand, the defendant was entitled to have his theory of the case presented. We have already referred to his claim that the defect in the title was not pointed out; that he had tendered a warranty deed; that he had offered to correct any apparent defect in the title; and that he was in a position to do so. There was testimony tending to support each of these claims, so that we think his 19th request to charge should have been given.

The court charged the jury as follows:

“Gentlemen, there has been some testimony given in this case with reference to a right of way and lake resort property adjoining this farm, and of an agreement entered into between the plaintiff and the defendant some time after this contract for the sale and purchase of this farm was executed by the parties to this suit. I do not think from the evidence in this case that that contract is sufficiently connected with the contract for the sale and purchase of this farm that it can be said to be a part of the transaction, and that there is no evidence in this case that Mr. O’Riley, in purchasing the right of way and lake resort property and then afterwards selling the farm in two parcels and including the right of way and lake resort property in the sales, did not receive by way of added value to the farm as much in value as he paid for it, and I do not remember any evidence in the case which tends to show that he suffered any loss or damage by reason of the failure of the plaintiff to buy that right of way and lake resort property of him for the same price that he paid for it, and I do not think that you should consider in your deliberations that transaction in connection with your investigations and determinations of the issues in this case.”

We have already referred to the claim of defendant as to this part of the transaction. He claims that his purchase of the resort property and the agreement of the plaintiff to take it off his hands were part and parcel of the transaction, whereby plaintiff agreed to buy the larger parcel, and that plaintiff could not rescind the land contract without placing defendant in statu quo, and that to do so he was bound to save defendant from any loss growing out of the purchase of the smaller tract. There was testimony tending to support this claim. Plaintiff testified:

“We went back to town and went into the office back of Boies Bank. I wasn’t going to take it after we got in there. Defendant told me I didn’t have to keep that summer resort open at the road. Mr. Bennett said I did have to keep it open at the road. Mr. Bennett said there was no use trying to lead a fellow in the dark, as it did have to be kept open. We finally entered into a contract. * * * After I made the contract with defendant, I went North, and was North about two weeks, and stopped in Hudson and finished up the contract we made before.
“Q. Made another contract?
“A. Yes, and finished up the bargain we made before, about the same business. Entered into a written contract with defendant for the summer resort property. At the time I made the first contract, on the 14th of October, I requested defendant to buy what was called the Perkins property, this summer resort. I wouldn’t have took the other after I found out this right of way had to be kept open and the lane kept fenced, and defendant agreed when I bought the other to buy that. I found out there was a right of way across this farm to the resort property before I made the contract with defendant, and I insisted that defendant should buy the resort and that right of way. I agreed to give him |300 for that property. It was to be paid the same date as the other payments.”

There is other testimony which, taken with this, fairly raises the inference that plaintiff would not have bought the farm if he could not also buy the resort property, and thus get rid of the right of way over the farm, and a like inference could be fairly drawn that his agreement to buy both of these tracts was what influenced defendant to buy the resort property. In any event, the evidence did not authorize the taking of that phase of the case from the jury in the manner in which it was done.

Judgment is reversed, and new trial ordered.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE v. CAMPBELL.
    1. Forgery — Criminal Law — Intent.
    Evidence that the respondent, charged with forging a note to conceal misappropriation of funds intrusted to him, failed to return the money is admissible to show intent.
    2. Constitutional Law — Forgery—Evidence—Method of Obtaining — Unlawful Searches and Seizures.
    A forged note obtained from the respondent’s desk in his absence, without a warrant, may be used in evidence against him to prove the corpus delicti without violating his constitutional exemption from being a witness against himself.
    3. Same — Criminal Law — Evidence Obtained by Search.
    Securing a note from respondent’s desk in his absence is not an unreasonable search and seizure if authorized by a search warrant. 3 Comp. Laws, § 11987; Const, of 1850, Art. 6, § 26.
    4. Forgery — Intent—Deceit.
    In a prosecution for forging a note which was retained by the respondent, an attorney who had been intrusted with funds by a client for investment, it was not error to refuse a request to charge that the note must, in order to render the respondent guilty of forgery, have been made with intent to prejudice the rights of some person, as well as to deceive.
    5. Same — Instructions to Jury.
    A charge that unless the note was made by respondent and was,intended for use in deceiving the client or working a fraud upon her the respondent must be found not guilty is proper.
    6. Same — Presumptions—Bills and Notes.
    In a criminal action the presumption that a note was executed on the day of its date is applicable as in civil causes.
    Exceptions before judgment from Jackson; Wiest, J., presiding.
    Submitted November 15, 1909.
    ( Docket No. 168.)
    Decided March 5, 1910.
    Robert Campbell was convicted of forgery.
    Affirmed.

      Thomas E. Barkworth, for appellant.

      Albert 0. Reece, Prosecuting Attorney, Frank L. Blackman, Assistant Prosecuting Attorney, for the people.
   Moore, J.

The defendant was convicted upon an information charging him with the forgery of a note. The date of the alleged offense as charged in the information was January 2, 1903. The proof showed that the paper produced and bearing that date was not seen by any of the witnesses until it was found by Judge Parkinson, a former partner of the defendant, in June or July, 1908. The finding of the paper in the desk of the respondent occurred during his absence, and when his desk had been taken apart by the direction of Judge Parkinson and in the presence of Mr. Cobb, who at that time was the attorney of Pauline Ragotzky. Judge Parkinson testified the purpose of the search was to find the balance of Pauline Ragotzky’s papers. He also testified that he then supposed he might have a personal interest in the paper himself, because of his former partnership with respondent, and that Pauline Ragotzky was present, and that they were acting for her, and had no knowledge of any crime, and were not seeking evidence of a crime. No evidence of the use of the note for any purpose by the defendant was offered, except as will appear later. For some years prior to the date of the alleged offense, the respondent had been acting for Pauline Ragotzky, an aged German woman, as an agent for the loaning of her money. About the date averred in the information she had some talk with him about a good loan in Cheboygan county to a Mr. Dodge, and on the date named in the information she drew from the bank $600, and gave it to respondent. He then gave her the name and address of Mr. Dodge, the alleged maker of the note. Defendant told her it was to be a loan on a mortgage. From that time on respondent paid the interest regularly to the complainant, accounting for it as the Dodge loan. She had no further specific conversation with respondent relative to it until the spring of 1908, when she went to him and asked him about it. Her version of that conversation will appear later. He told her there was a note, but he did not know where it was. Complainant never saw the note until she saw it in the possession of Mr. Cobb and Judge Parkinson at the time before mentioned.

It is said the court erred in permitting the witness Ragotzky to testify that the respondent never returned the $600 or any part thereof. It is urged it would have no legal effect upon the question of the guilt or innocence of the defendant, but would undoubtedly prejudice the defendant’s case before the jury. We think it admissible as bearing upon the question of the intent of the respondent in doing what he did.

It is said the testimony of Judge Parkinson as to the finding of the instrument, and its offer in evidence constitute error. We quote from the brief:

“ I contend that the admission of this testimony contravened the constitutional provision that the defendant shall not be compelled to give evidence against himself. The language of the Constitution of 1850 [Art. 6, § 32] is as follows:
“ ‘Seo. 82. No person shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.’
“A similar provision is found in the Constitution of the United States. * * * In effect this ruling compelled the respondent to make, through the medium of his papers, an extrajudicial confession of the corpus delicti. This confession, according to the authorities both in Michigan and elsewhere, would not, without corroboration, prove the existence of the body of the offense. It certainly was forced from him. Its effect in the case is that of a confession.”

In his reply brief counsel further states his position:

“I conceded in my former brief that the paper itself, if competent in the case, would not be rejected because of the method by which it had been obtained, but I sought to distinguish the case at bar from the cases in which this rule had been enunciated. Here it involves the corpus delicti, which depends entirely upon the discovery made by Judge Parkinson at the time the alleged violation of the Constitution occurred. The competency of the note itself depends upon the testimony of the judge. * * * I further contend that it would have been irrelevant and incompetent in advance of other proof of the corpus delicti, and its reception would absolutely nullify the constitutional provision protecting a person against being compelled to incriminate himself. This is the crucial point; the illegal search and seizure being a mere incident of the case. There is no evidence in the case tending to incriminate the defendant, save as is disclosed by a forcible exhibition of his private papers and disclosure of the contents of his desk, made in violation of both provisions of the Constitution, and which are as nearly fundamental in our system of jurisprudence as any principles can be. I know of no case involving the precise point we raise.”

We have already called attention to the testimony in relation to the circumstances under which the paper was obtained. If the paper was not a forgery, it belonged to Pauline Ragotzky. If it was a forged instrument, section |11987, 8 Comp. Laws, authorizes the issuance of a warrant to search for and seize it. When by virtue of a search warrant the forged instrument is found, it may be used as evidence, section 11990. In this case, while no search warrant was used, if one had been used, it cannot be said that it would be an unreasonable search and seizure within the meaning of article 6, § 26, of the State Constitution.

In Commonwealth v. Dana, 2 Metc. (Mass.) 329, the court said:

“The possession of lottery tickets, with the intent to sell them, was a violation of law. The defendant’s possession, therefore, was unlawful, and the tickets were liable to seizure as belonging to the corpus delicti, or for the purpose of preventing further violations of law. * * * There is another conclusive answer to all these objections. Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence, the court can take no notice of how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question. This point was decided in Legatt v. Tollervey, 14 East, 302.”

In Siebert v. People, 143 Ill. 571 (32 N. E. 431), is to be found the following language:

“ Courts, in the administration of criminal law, are not accustomed to be oversensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent or pertinent, and not subversive of some constitutional or legal right. In Grreenleaf on Evidence (Redf. Ed.), § 254, it is said:
“ ‘Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.’ ”

The question is not a new one in this State. In Cluett v. Rosenthal, 100 Mich. 193 (58 N. W. 1009, 43 Am. St. Rep. 446), the same principle was involved. Justice Montgomery, speaking for the court, said:

“ It is not the policy of the courts, nor is it practicable, to pause in the trial of a cause, and open up a collateral inquiry upon the question of whether a wrong has been committed in obtaining the information which a witness possesses. The cases have gone to great length upon this subject. In Legatt v. Tollervey, 14 East, 302, it was held that, upon the offer to prove at the trial of a cause the original record of an indictment and acquittal, or a true copy thereof, such evidence must be received though there was no order of court or fiat of the attorney general allowing the plaintiff a copy of such record, and though the officer who, without such authority, produced the record, or gave a copy of it to the party, is answerable for contempt of court in so doing. This has become a leading case, and is cited in 1 Greenleaf on Evidence, § 254a, in support of the doctrine of the text that, though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue; that the court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it frame an issue to determine that question. The doctrine is also fully supported by State v. Mathers, 64 Vt. 101 (23 Atl. 590, 15 L. R. A. 268, 33 Am. St. Rep. 921); Com. v. Dana, 2 Metc. (Mass.) 329; Com. v. Tibbetts, 157 Mass. 519 (32 N. E. 910).”

Error is assigned upon the refusal of the court to grant a new trial, in which he stated his reasons at great length. We shall not refer to these assignments, except to say they have been carefully considered, and we think are decided by what we shall say in those assignments of error which we discuss.

The court was requested to give the following:

“Third. I charge you that the offense of forgery is the fraudulent intent with which the paper was made, and you must be able to find from the evidence that it was made with the expectation and intention that some person should be defrauded thereby, and in this connection I charge you that the meaning of ‘ defraud ’ is not equivalent to ‘ deceive,’ and that it is not sufficient that the paper was made with intent to deceive any person, but that it must have been made with intent to prejudice the rights of some person, and you must agree upon the person, whose rights were so intended to be prejudiced.”

He declined to do so, and charged the jury as follows:

“ If the respondent’s intention in making the note was to deceive Miss Ragotzky, if she demanded evidence of the loan, and lead her to believe that he had made the loan, and that the note was evidence of it, and to cover up and conceal his false representations in getting the money and his use of it, if he used it, and his failure to make the loan, then the note was a forgery and with intent to defraud, and the respondent may be found guilty of forgery, provided you find from the evidence all of the essential facts I have mentioned established beyond a reasonable doubt. * * *
“Now, intent, gentlemen of the jury, is a secret of a man’s mind, and unless a man discloses his purpose by words, disclosing his state of mind, what he did it for, then the only way the jury may determine intent is from the acts proven in the case, and the reasonable inferences drawn therefrom.
“ So in this case, having in mind all of the evidence, all of the acts, if any, it discloses relating to the making of the note in evidence, it becomes a question for you, gentlemen, to determine the purpose, if any, the respondent had in making this note, in case you find he made it. Did he form the purpose of making this note in order to have it to show to Miss Ragotsky in case she wanted to see evidence of the loan ? What was his purpose ? Did he get the money from Miss Ragotsky ? If so, did he use it for his own purposes, or did he make the loan ? If he did not make the loan, then why did he make the note, if he made it ? Did he make the note ? Is it a false note ? When did he make it ? It is charged he made it on the 2d day of January, 1903, and, it being so charged, in order to find the respondent guilty of the charge here made, it is necessary for you, gentlemen, to be satisfied from the evidence, beyond a reasonable doubt, that the respondent did make the note at the time alleged.
First, you will take up the question of whether the respondent made the note at the time alleged. If you cannot say he did, and so find from the evidence beyond a reasonable doubt, the case ends, and your verdict will be that of not guilty. If you find he did make the note, that it is a false note, entirely his own work, without any authority from Mr. Dodge to execute it for him, then you come to the question of his purpose and his intent in making it.
“As I said to you before, gentlemen, the question of intent, no witness can come and testify to an intent, because intent is a secret of another man’s mind, but the intent, if you reach that question, is to be gathered, if at all, from all the facts disclosed and the circumstances surrounding the doing of the thing charged. If he made the note, and it is a false note, what was his purpose ? Was it that he might have it to show to Miss Ragotzky in case she wanted to see evidence of the loan ? Did he have it — did he make it to have it for the purpose of perpetrating a, fraud upon her ? Did he make it for the purpose of concealing his use of the money ? Did he make it for the purpose of satisfying Miss Ragotzky by its production in case she asked to see evidence of the loan, to satisfy her he had made the loan and held Mr. Dodge’s obligation ? If such was his purpose, if he made the note and it is false, then it would be a fraud upon Miss Ragotzky, and if the note was false, and made by the respondent with the intent of defrauding or working a fraud upon Miss Ragotzky, then all the elements of the crime of forgery are established, and the respondent may be found guilty. In case you cannot so find beyond a reasonable doubt, then the respondent must be found not guilty.”

The provisions of the statute are as follows:

“ In any case where an intent to defraud is required to constitute the offense of forgery, or any other offense that may be prosecuted, it shall be sufficient to allege in the indictment an intent to defraud, without naming therein, the particular person or body corporate intended to be defrauded ; and on the trial of such indictment, it shall be deemed sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States, or any State, county, city or township, or any body corporate, or any public officer in his official capacity, or any copartnership or member thereof, or any particular person.” Section 11672, 3 Comp. Laws.

We think this phase of the case was fully covered.

Error is assigned upon the refusal of the court to give the following:

“Eighth. There can be no presumption drawn as to the time of the transaction from the date of the note. While in some cases there is such a presumption, it is not. applicable here.”

In 16 Cyc. p. 1072, it is said:

“ Facts which usually and regularly coexist in business affairs are assumed, in the absence of evidence to the contrary, to coexist in any particular case. Thus it is assumed * * * that the date on a written instrument is the day of its execution” — citing 8 Cyc. p. 217; 13 Cyc. p. 727; Hauerwas v. Goodloe, 101 Ala. 162 (13 South. 567); Chicago, etc., R. Co. v. Keegan, 152 Ill. 413 (39 N. E. 33); Lauder v. Agricultural Society, 71 Ill. App. 475; Holbrook v. Zinc Co., 57 N. Y. 616, and many other cases.

These authorities support the statement contained in the text.

It is suggested that, while this rule is correct in civil cases it does not hold in criminal cases. As to this phase of the case, the question is whether the note was executed upon the day of its date. If a presumption arises, based upon the usual and common experience of the business world which has value as evidence in a civil case, we cannot see why it should be rejected as of no value in a criminal case. The court allowed the jury to say whether there was evidence to the contrary of this presumption. The case, however, did not rest upon presumption alone. A complaint was made in which the note was described in extenso.

Mr. George J. Dodge testified:

“I was present in police court in this city during the examination of Mr. Campbell in the court below. I had some talk with Mr. Campbell at that time in reference to this matter, Mr. Campbell told me he made that note himself, but he never intended to use it against me. He said, ‘I made that note myself.’”

Pauline Ragotzky testified in part as follows:

“ I had a talk with Mr. Campbell about my papers. I can’t give the date. I was made anxious that my loans would be unsafe, so I went to Mr. Campbell, and asked him about it. I wanted him to give me my papers. I told him it was time for me to get acquainted with my own affairs, and he gave me some. Instead of 9 or 14, he gave me 4. I asked the difference. I says, * This is only 4.’ There are so many more. He didn’t make any answer at that time, and I simply said, ‘ Where is the Dodge mortgage?’ He said, ‘There is no mortgage.’ Then I asked him what there was. He told me there is a note. I says, ‘ Where is the note ? ’ He told me he didn’t know where it was. There was nothing said about my having it, that I can recall. It might have been, but I can’t say. Still it might have been that I said no. I never had it. There was very little talk at that time, for Mr. Campbell seemed to be quite excited, and I took the papers and he locked up his desk and went away. I didn’t see a thing of any Dodge papers at that time.”

Later the paper was found in the manner before described, in an envelope marked “Pauline Ragotzky.”

The case was carefully tried. We find no reversible error. The conviction is affirmed.

Hooker, MoAlvay, Brooke, and Blair, JJ., concurred.


author: Hooker, J. Blair, J.

text:
      In re McINTYRE'S ESTATE. EWING v. LAMPHERE.
    1. New Trial — Appeal and Error — Weight of Evidence.
    It is the statutory duty of- the Supreme Court, on a writ of error from the denial of a motion for new trial, to examine the testimony and determine for itself whether or not the verdict is so plainly against justice as to call for a new trial.
    2. Wills — Lost Instrument — Memorandum of Contents.
    A memorandum of decedent’s alleged lost will containing inconsistent provisions and bearing internal evidence of its spurious character is insufficient to support a verdict admitting the claimed will to probate.
    Blair and Moore, JJ., dissenting.
    Error to Wayne; Brooke, J.
    Submitted October 8, 1909.
    (Docket No. 23.)
    Reargued January ?, 1910.
    Decided March 5, 1910.
    Petition by Augusta Ewing for the probate of a lost will, alleged to be the last will and testament of Archibald P. McIntyre, deceased. Delos McIntyre and others filed objections. The petition was denied in the probate court, and proponent appealed to the circuit court. A judgment for proponent is reviewed by contestants on writ of error.
    Reversed.

      Bowen, Douglas, Whiting & Eaman (James O. Mur fin and Otto Kirchner, of counsel), for appellant.

      Maybury, Lucking, Emmons & Helfman (Harrison Geer, of counsel), for appellee.
   Hooker, J.

Archibald P. McIntyre, a widower, died, leaving no issue, in May, 1900. Two brothers living in New York, a sister living in Wisconsin, and a daughter of a deceased brother were his next of kin. After McIntyre’s death, administration of his estate was commenced and the property partly distributed when a petition was filed by one Augusta Ewing for the probate of an alleged will, asserted to have been lost or suppressed. The petition was denied in probate court, and the cause was appealed to the circuit, where, after several trials, a verdict was rendered in favor of the proponent, and the cause was brought to this court by Helen Lamphere, McIntyre’s niece hereinbefore mentioned.

To prove the execution of the alleged will, the following testimony was produced: One Mrs. Yerkes, McIntyre’s housekeeper or servant, testified that she was called in to witness a will which McIntyre then and there signed in the presence of one Squire Smith, who drew it, and one John Williams, who chanced to be in the hotel at the time. She testified, further, that McIntyre took possession of the will, that he kept, his papers in a desk and tin box in his bedroom. Some hours later she found a paper in the room where the will was executed, which she laid on the table, intending to give it to McIntyre, but she overlooked it, and after his death several years later she found it among her papers. She did not read or hear the will read. John Williams testified to witnessing the will, which he heard read, and stated the substance of its provisions. A paper said to have been the one found by Mrs. Yerbes was produced, and purported to be memoranda for a will of Archibald McIntyre, and two sons of Smith, the alleged scrivener, testified with much positiveness that it was in the handwriting of their father. Mrs. Yerbes testified that one Harold McIntyre, a nephew of the deceased, who was with him during his last illness, had possession of the bey to his desb and the opportunity to abstract this will; that after the funeral the papers were taben to New Yorb by him and his uncle, Delos McIntyre. Mrs. Yerbes testified before the probate court, and shortly before the cause was to be heard on the circuit she committed suicide. It is contended by the appellant that she did this from remorse, and reluctance to repeat false testimony, and the feeling of shame that would follow a public admission of her misconduct, while the claim is made on behalf of the appellee that her act was caused by threats made to her by friends of the appellant, and her fear of prosecution and imprisonment for perjury charged to have been committed in the probate court. These claims are based upon the testimony of one or more witnesses produced by the appellee of a conversation with Mrs. Yerbes prior to her death, in which her reluctance to testify again was made manifest. This testimony seems to have been drawn out by counsel for appellant on cross-examination of proponent’s witnesses. No objection appears to have been made to it.

Attention was called by counsel to two provisions of the memoranda for the will that are said to indicate its spurious character. It may be best shown by quoting from the language of the learned circuit judge in disposing of the motion for a new trial. He said:

There is another feature that deserves attention, in view of the uncontradicted testimony in the case that the sister of Archibald McIntyre, living in Wisconsin, lived up to within a few weebs of the death of Archibald MeIntyre, and likewise in view of the fact that it was conclusively shown that McIntyre knew of his sister being alive the paragraph in the will reading as follows: £ I give to the grandchildren of my deceased sister in Wisconsin, $5,000 — is peculiarly significant. It is alleged that this provision was made in the fall of 1896. This was four years before this woman spoken of in this paragraph as the deceased sister died. Another peculiar paragraph in the will is the following:
‘“I give to the person who has stayed with me and managed my household affairs and oared for me for at least two years, including the entire period of my last sickness, the hotel and contents thereof.’
“In September, 1896, there was no person answering to this description. The last sickness of the contestant did not occur for nearly four years thereafter, and Mrs. Yerkes had at the time of the making of the alleged will been in the employ of the deceased but a few months. In spite of these inconsistencies, and the demonstrated character of the witnesses (Yerkes and Williams), the jury reached the conclusion that they should be believed.”

We held in the case of Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634), that it was the duty of this court to review the evidence in a cause to determine whether a ruling upon a motion for new trial upon the ground that the verdict was contrary to the weight of evidence was erroneous. We cannot escape this responsibility which was doubtless imposed by the legislature to provide relief against palpable miscarriages of justice through unjust verdicts, which all judges and lawyers know to be not uncommon. In the exercise of this power this court cannot content itself with a mere determination that there is a conflict of evidence, and that the jury is as well qualified to judge of the facts and the credibility of testimony as itself, which was the rule before, or that the trial judge has approved the verdict or even expressed his own belief that the verdict is not against the weight of evidence, and thereupon affirm the denial of a motion, but it must examine the testimony and determine for itself whether or not the verdict is so plainly against justice as to call for a new trial. That this statute may be disapproved by those who entertain the idea that the verdicts of juries are necessarily and invariably honest, candid, discriminating, and just does not affect the question. Evidently the legislature has recognized the common belief that jurors have their foibles and juries their faults which interfere with the ideal administration of justice, and has attempted to apply a remedy by enlarging the rule heretofore adopted and followed by the appellate courts. It had the power to confer such authority upon the appellate courts.

We have endeavored to make a careful and critical examination of the evidence in this case. We are satisfied that the testimony of both John Williams and Mrs. Yerkes was untruthful. It is upon the testimony of these two witnesses that the verdict must rest, for no other witness ever saw or knew anything about a will made by deceased. Mrs. Yerkes was housekeeper or servant for McIntyre. She testified that she knew him five years before his death, and was employed in his house (a hotel) about four years and six months, and that the will was made in September or October, 1896. This was before she had been there a year, yet it is claimed that the hotel and farm, said to have been worth 120,000, was bequeathed to her. We think that the memorandum introduced as evidence of the contents of the alleged will contains strong internal evidence that it is spurious. The charges made by Mrs. Yerkes against Harold McIntyre in relation to the abstraction of the alleged will and money are contradicted. These papers were taken by the next of kin, who presumptively were the proper persons to take them. There is no complaint made by any of them, and at the time the papers were taken there was no reason to suppose that the proponent and her associates had any interest in them. Indeed, it may be thought by some that the sequel has proved that a wise precaution was exercised by Harold and Delos McIntyre in keeping possession of the documents found in the desk and box. Their denial of any abstraction of a will or other paper by themselves or any one else is as credible as the statements of Mrs. Yerkes, and to'our minds much more so. Furthermore, this is a case where the learned circuit judge who tried it, although denying the new trial, has unequivocally expressed his own disbelief in the crucial testimony upon which the verdict rests, and his own nonconcurrence with the determination of the jury. His reason for denying the motion was a not unnatural reluctance to overrule the conclusions of the jury regarding the credibility of witnesses and the value of human testimony. In this he thought that he found support in the opinion of this court rendered upon a former hearing of this cause. See 141 Mich. 506 (104 N. W. 787).

Notwithstanding this, he denied the motion only upon the unprecedented condition that the appellee should file a bond in the sum of $1,000 conditioned to pay the costs of appeal should the judgment be reversed. Of the opinion in the case cited it should be said that it was before this court on an appeal by proponent from a directed verdict. Necessarily the testimony was discussed from the standpoint most favorable to the proponents, with a view merely to the determination of the propriety of taking the case from the jury, which was the only question involved. Indeed, the writer of the opinion said:

The sole question, therefore, under the charge, is whether there was any evidence in the casé legitimately tending to overcome the prima facie presumption of revocation arising from the nonproduction of the will.”

We are constrained, therefore, to reverse the judgment, with costs against the proponent.

A new trial is ordered.

Montgomery, C. J., and Ostrander, McAlvay, and Stone, JJ., concurred with Hooker, J.

Blair, J.

(dissenting). This case made its first appearance in this court in the January term, 1903. A verdict was directed for contestants by the trial court, and the judgment entered thereon was reversed by this court on writ of error prosecuted by the proponent. Ewing v. McIntyre, 133 Mich. 459 (95 N. W. 540). The case having been retried before a jury, a second verdict was directed in favor of contestants, and the judgment entered thereon was again reversed by this court on writ of error prosecuted by proponent. Ewing v. McIntyre, 141 Mich. 506 (104 N. W. 787). In June, 1906, the case was tried before a jury and resulted in a disagreement. The case was a third time before this court at the January term, 1907, upon a collateral phase, where a decree of the circuit court in chancery sustaining the demurrer of contestants was reversed. Ewing v. Lamphere, 147 Mich. 659 (111 N. W. 187, 118 Am. St. Rep. 563). The case is now before this court upon writ of error prosecuted by counsel for contestants to review the judgment entered upon the verdict of the jury in favor of the proponents and finding in answer to special questions, as follows:

“ (1) Did Archibald McIntyre in September or October, 1896, execute a last will and testament in the presence of Emma A. Yerkes and William A. Smith?
“Yes.
“ (2) If you answer the foregoing ‘Yes,’ did Archibald P. McIntyre die in May, 1900, believing that said will so executed by him was in existence, and would control the disposition of his estate ?
“Yes.
“ (3) If both the foregoing questions are answered ‘Yes,’ does Exhibit 1 contain the provisions of that will?
“Yes.”

The principal question in the case now before us is whether the trial court erred in refusing to grant a new trial on motion of contestants upon the ground that the verdict was against the weight of the evidence. For a statement of the facts I refer to the opinion of the court in Ewing v. McIntyre, 141 Mich. 506 (104 N. W. 787), with such additions as I shall indicate in the course of this opinion. As in the case of most will contests, this case involves a sharp conflict in the testimony. Upon every important element of the case there is substantial testimony upon both sides. The testimony, however, upon the last trial was vastly stronger in favor of proponents, since the alleged memorandum draft of the will (Exhibit 1), having theretofore been excluded from consideration by the jury, was, in accordance with the opinion of this court in 141 Michigan, submitted to the jury for their consideration. Mr. Smith, the scrivener of the will and one of the attesting witnesses, died a few months after the death of Mr. McIntyre. Mrs. Yerkes, the other subscribing witness to the will, whose testimony was taken in the probate court, committed suicide prior to the first trial in the circuit court. One John Williams claimed to have been present at the time of the execution of the will and to have heard it read over and testified to its contents.

The most important question of fact in the case concerns the authenticity of the alleged memorandum for the will. Contestants strenuously urged that this instrument was a forgery, and in my opinion their whole contest is involved in that contention. If, as a matter of fact, this memorandum was a genuine instrument, it is difficult to perceive any substantial ground upon which the verdict of the jury can be attacked as being against the weight of the evidence. This memorandum was supported (1) by the testimony of Mrs. Yerkes that she found this memorandum near the place where the scrivener had sat at the table when the will was executed, some hours later, and accounting for its unchanged condition from that time on; (3) by the testimony of two sons of the scrivener, Mr. Smith, that the memorandum was entirely in the handwriting of their father; (3) by the testimony of numerous witnesses that the testator had declared to them that he had made a will, and that Squire Smith had drawn it; (4) by the testimony of numerous witnesses that the testator was hostile to his brothers, and was determined that they should have no share in his estate; (5) that the memorandum, in considerable part at least, confirmed the previously expressed intentions of the testator; (6) by the testimony of John Williams as to the contents of the will read over in his presence. On the other hand, the authenticity of the memorandum was impeached by the testimony of a daughter-in-law and a handwriting expert, who testified that it was not in the handwriting of Smith, in their opinion; by alleged inconsistencies and contradictions in the testimony of Mrs. Yerkes and John Williams and the inherent improbability of their stories; by the declarations of Mrs. Yerkes, inferring perjury on her part and conspiracy to forge the memorandum and will; by the testimony of numerous witnesses to the declarations of the testator that he had not made a will and never intended to, but was satisfied with the disposition made by the laws of this State; and, it is alleged, by the internal evidence of the memorandum itself.

The two sons of Mr. Smith, who were men of apparent respectability, unimpeached, and who testified that they were familiar with their father’s handwriting, swore positively that the memorandum was in his handwriting. So far as the direct evidence of handwriting is concerned, it cannot be questioned that the testimony was as strong in support of proponents as of contestants, and it appears to me that the positive testimony of the two sons, having no interest whatever in the result of the suit, that the handwriting was their father’s, standing alone, would justify the verdict of the jury in favor of the fact testified to against all the other testimony in the case. The authenticity of the memorandum, however, does not rest upon the testimony of handwriting alone, but is supported by numerous cogent facts testified to by many respectable witnesses who were unimpeached, and whom the jury had an undoubted right to believe as to declarations of the testator that he had made a will with provisions in harmony with the contents of the memorandum. For instance, Mr. Hamilton Baluss, an attorney at law, who testified that he was an intimate friend of the testator, swore that a year or two before his death he had a conversation with Mr. McIntyre in which—

“He said that he had a housekeeper that was a good one, and that he got along first rate with her, and that she was very kind to him. He sounded her praises, and I says, ‘Well, Arch, you haven’t got any children; and, if that woman stays with you, you ought to provide for her in case of your death, if you don’t get married.’ I says, ‘you ought to provide for her.’ .He says, ‘that is just-what I have done, Mr. Baluss. I have made my will and I have provided for her so that she will never want if I drop away.’ He says, ‘ I have got some relatives in the East, but they never helped me get what I have got, and I have got some friends here that I propose to remember. ’ ”

Mr. Lafayette 0. Hall, postmaster of Plymouth, testified to having a talk with testator in 1896 or 1897 at his hotel, when McIntyre was having a talk with Squire Smith relative to probate matters, and discussing the possibility of wills being contested, etc. After that he had. another talk with Mr. McIntyre.

“He seemed to want to fully understand. Among other things, he said that he was anxious to know my experience, from the fact that he expected that it might be possible that his will might be contested at some time; that he had some brothers in the East that he would expect would contest his will perhaps, inasmuch as he had, not provided for them. I don’t know just what that conversation was, word for word, but anyway he said to me, as I remember it, more distinctly, that if he could prevent it that his brothers should never have a damned cent of his property.”

There was also much testimony to the effect that Mr. McIntyre was very fond of Eva Kenyon and intended to provide for her, and after her death that he had provided in his will for her children, and that William Ewing was the executor of his will.

It is difficult to believe that all of these witnesses were testifying falsely, and, in fact, no such contention is made. It is also difficult to believe that Mr. McIntyre, in serious conversations which he had with his intimate friends with reference to his property, was unnecessarily and deliberately deceiving them by statements that he had made his will, that Squire Smith had drawn it, and that he had provided for various people therein, and had appointed a certain man executor. As between testimony of opposing declarations upon the subject of his will, it would seem that a man would be more likely to falsely deny having made a will than to falsely state with positiveness that he had made one and had made certain dispositions of his property, which, if known, would invite the importunities of those who had not been remembered. At all events, this testimony presented a square issue of fact for the consideration of the jury, and no court would be warranted in overturning the finding of the jury in favor of the facts testified to by the witnesses for proponents in this respect. There was therefore an abundance of testimony from unimpeached witnesses, who, so far as the record discloses, were men of respectability and standing in their community, that the testator had stated to them that he intended to make a will with provisions consistent with the memorandum. There was also an abundance of testimony from witnesses of like character that the testator stated to them that he had made a will, and that Squire Smith had drawn it. There was also testimony from which, as we have heretofore held (141 Mich. 511 [104 N. W. 787]), the jury might have inferred a spoliation of the will by those interested in its destruction. The establishment of the will, therefore, does not rest upon the uncorroborated testimony of Mrs. Yerkes and John Williams. The authenticity of the memorandum does not depend upon the testimony of Mrs. Yerkes at all, but upon that of the two sons, who positively affirmed its genuineness. Mrs. Yerkes’ testimony related only to the finding of the paper and its preservation. Williams’' testimony did not relate to the memorandum at all. The principal internal evidence relied upon for the discrediting of their testimony, which is in harmony with the facts to which I have called attention, is (1) the statement in the memorandum, “ I give to grandchildren of my deceased sister in Wisconsin $5,000;” (2) the provision, “I give to the person who has stayed with me and managed my household affairs and cared for me for at least two years including the entire period of my last sickness, the hotel.” etc. The observations of the trial judge with reference to these points are set forth in Justice Hooker’s opinion. The opinion of Mr. Justice Hooker that the memorandum “contains strong internal evidence that it is spurious ” is apparently based upon the same considerations. It seems manifest that, if they are in error as to the conclusions to be drawn from these provisions of the memorandum, their opinions lose much of their support.

First. As to the grandchildren of his deceased sister: The circuit judge was of the opinion that it was conclusively proved that Mr. McIntyre knew at the time of the alleged will, or memorandum, that his sister was alive. I think it clear that the trial judge was mistaken in this conclusion. . On January 5, 1896, Mr. McIntyre wrote to his brother Franklin in New York, from which letter I quote, as follows:

“Bedford, January 5, ’96.
“Dear Brother: — I received yours at hand and was glad to hear from you. I haven’t heard from down there so long that it seems good to know that you was alive. I had not heard that Herrick Babcock was dead. Now I don’t hear from any of them. I am a lone man here and no one writes to me,” etc.

Testator’s Wisconsin sister was the wife of Herrick Babcock, and it is apparent from the letter that he was not in communication with her at the date of his letter, and had not been for a considerable time. He had no letters from Wisconsin to inform him whether she was dead or alive. George E. Seely, who testified that his “business was that of farming and buying cattle, said that he was well acquainted with Mr. McIntyre, and that about three years before he died, and while Mrs. Yerkes was there as his housekeeper, he said that his sisters were both dead, one of whom lived in York State and the other in Wisconsin.

“ He said his brothers were better off than he was? and they wouldn’t get any of his property. He said his sisters were both dead. He didn’t say anything about his sister’s children.”

There is nothing to impeach the credibility of Mr. Seely’s testimony except the testimony of the Wisconsin sister’s grandchildren, who, in order to secure their grandfather’s estate in Wisconsin, procured an adjudication that their father was dead. In order to secure a portion of their granduncle McIntyre’s estate in Michigan, they caused a sworn petition to be presented in favor of their resurrected father and obtained a settlement. Their granduncle, Delos P. McIntyre, having died in New York, their father was again consigned to the tomb, and they sought a share of Delos’ estate. I think it satisfactorily appears that the testimony of these witnesses of the receipt of a letter from testator in the spring of 1896 comes from persons of such character that the jury would have been justified in disbelieving their testimony, so far as it related to this letter, which was not produced. Furthermore, if the jury were convinced that the memorandum was genuine, the memorandum itself was evidence that the testator had told Mr. Seely that Mrs. Babcock was dead. I am satisfied that the testimony as to Mr. McIntyre’s knowledge of his sister’s existence clearly presented a question of fact for the jury.

Second. With reference to the second point, that there was no person answering to the description given in the language quoted from the memorandum, it seems apparent to me that this point proceeds upon a misinterpretation of the provision itself. The essence of this point is that the language used shows that the paper was drawn after the death of Mr. McIntyre, and is inconsistent with the theory that it was made in his lifetime. It must be borne in mind that the scrivener, while admitted to the bar, was a practitioner before the justices’ courts, and, for the most part, in the rural district where he resided, and was not a lawyer of extensive practice, and that the language of the papers as sworn to by his sons was his language. If the language used, when properly construed, is in harmony with the view that the paper was made in 1896, then the objection must fail. Supposing that the paper was made, as claimed, in Mr. McIntyre’s lifetime, then it is plain that, as his last sickness had not occurred, the period of last sickness referred to in the memorandum was a provision relating to the future, and it seems to me entirely clear that this whole provision relates to the future and not to the past, and should be understood as though it read as follows:

“Igive to the person who shall have stayed with me and managed my household affairs and cared for me for at least two years, including the entire period of my last sickness, the hotel,” etc.

The will would speak from the date of the testator’s death, and the provision, “I give to the person who has stayed with me * * * for at least two years including the entire period of my last sickness” — indicates a limitation of the time previous to his death by way of condition precedent. It is true that in 1896 Mrs. Yerkes had not stayed with Mr. McIntyre for at least two years. It is equally true that Mr. McIntyre’s last sickness had not then occurred, and, if the memorandum were made in 1896, the only reasonable construction of the language in question would be that it referred to services preceding his death and extending over a period of at least two years prior thereto. I think, therefore, that, so far as the reasons assigned for disbelieving the witnesses rest upon internal evidence of the memorandum, they do not support the argument. Doubtless, there is much cause for suspicion of the testimony of these two witnesses, and, if their testimony had been uncorroborated by the memorandum and the testimony of a multitude of other unimpeached witnesses, doubtless the jury would have reached a different result. In their view, however, the unimpeached evidence must have been satisfactory that Mr. McIntyre made a will, and that Mr. Smith drew it, and that the memorandum was authentic and cogent proof of the contents of that will. The mere fact that the trial court disagrees with the conclusion of a jury as to the preponderance of the evidence or the credibility of witnesses is not sufficient to justify the granting of a new trial. Much less would it justify this court in overturning his decision refusing a new trial. Wheeler v. Jenison, 120 Mich. 422, vide page 428 (79 N. W. 643); Saginaw Milling Co. v. Mower, 154 Mich. 620 (118 N. W. 622).

In Wheeler v. Jenison, the circuit judge said, in overruling a motion for a new trial:

“One of the principal reasons alleged on the part of the defendants for a new trial in this case is that the verdict of the jury was against the weight of the evidence. In the opinion of the court that was true.”

Considering what the court further said, the judgment was affirmed. In the instant case' the trial judge, after stating his disagreement with the verdict and his disbelief of the testimony of Mrs. Yerkes and John Williams, proceeded as follows:

“ Under our system of jurisprudence, it is the function of the jury to determine the value of testimony, and I have always been loath to disturb findings of fact made by juries. The jury in this case was out upwards of 24 hours, and had ample opportunity for discussion. I am extremely loath to substitute my judgment as to the credibility of the two witnesses named for that of the jury. Particularly am I impelled to this conclusion by reason of the language of our Supreme Court when it had this case before it for consideration (see Ewing v. McIntyre, 141 Mich. 506 [104 N. W. 787]), where the court said:
“ ‘ Considering the testimony in the light of these rules, the jury would have been warranted in finding,’ eto.
“ I think it is conceded by counsel for contestants that the case made by the proponents on this trial is at least as strong as the case made upon the former trial, the consideration of which elicited the foregoing language from the Supreme Court.”

In my opinion the court proceeded upon a ground that should influence, not only trial courts, but this court as well, in considering the credibility of witnesses, viz., that they should be extremely loath to substitute their judgments as to the credibility of witnesses for that of the jury-

“ Where the correctness of the verdict depends on the credibility of witnesses, it should seldom be disturbed.” 29 Cyc. p. 830c, and notes.

The credibility of witnesses has always been regarded as a subject whose determination is peculiarly within the province of the jury. It was said in Mawich v. Elsey, 47 Mich. 10 (10 N. W. 57):

‘ ‘As the trial involved an inquiry into the credibility of witnesses and included the duty of drawing collateral inferences, it is not an occasion for the court to test the result by applying thereto its own judgment, and it matters not what our opinion may be of the abstract justice of the verdict.”

In People v. Girdler, 65 Mich. 69 (31 N. W. 625), it was said:

“Whatever may be our opinion of the truth or probability of Campbell’s testimony, we cannot interfere, nor could the court below, with the province of the jury. It is for them to weigh and pass upon the truth or falsity of Campbell’s story. If they found it true, they were warranted in finding the respondents guilty, whether there was any other evidence in the case or not. The court instructed the jury, in effect, and clearly enough, that they must acquit the respondents unless they believed the criminal act was committed as testified to by Campbell. The jury must, therefore, have believed him, and their judgment in that respect cannot be disturbed by us, and could not be controlled by the trial court.”

In Ball-Barnhart-Putnam Co. v. Lane, 135 Mich. 275 (97 N. W. 727), it was said:

“ The plaintiffs’ proof of title was not complete without the testimony of Rice. It is contended that, as Rice was a self-confessed thief, his credibility was for the jury. We are constrained to hold that this contention should prevail.”

See, also, Payne v. Union Life Guards, 136 Mich. 416 (99 N. W. 376, 112 Am. St. Rep. 368); Muir v. Kalamazoo Corset Co., 155 Mich. 624 (119 N. W. 1079).

These cases are not cited as negativing the right of the trial judge to grant a new trial where his determination involves the credibility of witnesses, but as showing the emphasis which this court has placed upon, and the importance which it has attached to, the exclusive right of the jury to finally determine the credibility of witnesses, and as bearing upon the rule which should be followed in the granting of a new trial. The statute has made no change in the rules which should govern the trial judge. It has merely authorized this court to review his decision in the manner pointed out in Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634). In my opinion the rule should be that neither the trial court nor this court should set aside a verdict upon its opinion as to the credibility of witnesses unless the other evidence in the case is so overwhelmingly against the credibility of those witnesses that the conclusion cannot be escaped that the jury were influenced by something other than the testimony. See Churchill v. Mace, 148 Mich. 459 (111 N. W. 1034). I am therefore of the opinion that it cannot be said that the verdict of this jury was against the weight of the evidence, or that the testimony of the witnesses referred to was so incredible that their verdict should be set aside because they gave it credence. In view of the fact that the grant ing of a new trial would open the case to all proper objections to the receiving of testimony, I have, in coming to the conclusion which I have reached, excluded from consideration such portions of the testimony of witnesses tending to impeach the testimony of Mrs. Yerkes as her attention was not called to upon the witness stand.

In my opinion the interests of justice do not require a retrial of this case. For over eight years it has been dragging its weary way through the courts. The delay has been caused by the successful efforts of contestants to obtain verdicts in their favor by direction of the court upon grounds held to be untenable by this court. The verdict of a jury, entitled to the same presumption of honesty and good faith that attaches to the action of the courts, has been had upon the merits, upon testimony that involved the most important of their functions, the testing of the credibility of witnesses, and that verdict finds the will established. The charge of the court was eminently fair towards contestants and they were represented by eminent counsel, who placed their case before the jury in its most favorable view, and placed before them the proponents’ case in its most unfavorable light. I see no good ground for anticipating a different result upon another trial, and I think the judgment should be affirmed.

Moore, J., concurred with Blair J.


author: Montgomery, C. J.

text:
    SEEGER v. VILLAGE OF HART.
    1. Municipal Corporations — Negligence —Sidewalks —Steps Out op Repair.
    It was error to direct a verdict for the defendant village against a plaintiff who, while descending steps in a walk, caught her foot in a defective place in the step and was injured; the evidence showing that the walk had been condemned more than two months previously and that the boards of which the steps were made were badly rotted and would not hold nails.

      2. Same — Questions of Fact and Law.
    Whether the condition of the walk was negligence, and whether the authorities were negligent in not discovering the defect, were questions of fact.
    Error to Oceana; Sessions, J.
    Submitted October 19, 1909.
    (Docket No. 116.)
    Decided March 5, 1910.
    Case by Bina Seeger against the village of Hart for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      jRufus F. Skeels, for appellant.

      C. B. Stevens, for appellee.
   Montgomery, C. J.

This is an action for negligent injury. The plaintiff complains that while traveling along the street in the defendant village, and while descending some steps which formed a part of the sidewalk on the street, she caught her foot in a defective place in a step, and was thrown down and injured. The defect complained of consisted of a place in the walk in which there were three wooden steps made of two-inch stuff which had become in places decayed. One-inch boards had been nailed over these decayed portions. These inch boards did not reach back to the riser. The result was that a space was left between the riser and the board so nailed over the top of the step. As the walk became old, it became shattered, the riser on the step where the plaintiff was injured became rotten, and the nail holes rotted out so that the riser was loose and would spring back, and the underboard of the step was badly worn and unsound. There was testimony offered tending to show that this condition had been observed some months prior to the injury. The walk was in such condition that it was condemned by the village authorities on July 20, 1908, the accident having occurred on the 10th of October, 1908. The court directed a verdict for the defendant of no cause of action, on the ground that there was not such a defect as to constitute negligence on the part of the defendant in not repairing the walk, and that there was nothing to justify a finding that the step was not in reasonably safe and fit condition for travel. This holding presents the only question which need be considered in the case.

The case is very near the border line. No precise precedent can be cited either opposed to or in affirmance of the court’s ruling. The fact that the walk at this place was in a defective condition is undoubted, and that measures had been taken to put it in condition by the nailing of this one-inch board on the defective board beneath appears. "We are of the opinion that it ought not to be said, as a matter of law, with knowledge of this defect in the step and the rotted condition of the riser, that it was not the duty of the authorities to see to it that no such trap as would result in the giving way of this riser and letting the foot of a pedestrian down between the riser and the board should occur. Let it be understood that we do not affirm this as negligence. We are, upon full consideration, inclined to think that it is a question for the jury as to whether it was or was not negligence — a question of fact — and the question of whether the authorities were negligent in not discovering this defective condition is likewise a question for the jury.

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

Ostrander, Moore, Me Alva y, and Brooke, JJ., concurred.


text:
    BONEWELL v. NORTH AMERICAN ACCIDENT INSURANCE CO.
    1. Insurance — Accident Policy — Fraud—Warranties.
    An application for insurance containing false representations invalidates a policy which, refers to the statements of the application and contains a warranty that they are true, .although the facts were correctly stated to the company’s agent, who advised the assured as to the contents of his application, but had no authority to change the policy or waive any of its provisions.
    2. Same — Materiality oe Representations.
    Warranties that the representations included in the application for insurance were true, may be embodied in the contract without regard to their materiality.
    Error to Wayne; Murphy, J.
    Submitted December 15, 1909.
    (Docket No. 157.)
    Decided March 5, 1910.
    Assumpsit by William L. Bonewell against the North American Accident Insurance Company on a policy of insurance. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Thomas A. Gonlon, for appellant.

      Henry G. Walters, for appellee.
   Montgomery, C. J.

This is an action upon a policy issued by defendant company to the plaintiff based upon a written application. The plaintiff during the life of the policy met with an accident, which, if the policy is enforced, entitles him to recover a substantial sum. The defendant gave notice under the plea of the general issue that the plaintiff had stated in his application that he never had had an application for insurance declined, when, in fact, he had 'applied for a policy in the Iowa State Traveling Men’s Association and the application was refused; that the plaintiff stated that he had never received indemnity for any accident, when, in fact, he had received indemnities on two or three different occasions on account of two or three different accidents; that the plaintiff stated the duties of his occupation incorrectly; and that the plaintiff had taken out other insurance in the United States Casualty Company, notice of which was not given to the defendant.

The original policy was taken out in 1905, and was renewed in 1906. The original application contained the following statement:

“I agree to accept policy, issued on the company’s faith in the truthfulness of the above statements, subject to all its conditions, agreements and schedule of warranties; understanding that insurance is not effective until this proposal is accepted by the secretary, and the first premium paid.”

The first clause of the contract of irisurance is worded as follows: *'

“In consideration of the premium, and of the agreements and statements in the schedule of warranties hereinafter contained, and made a material part hereof, which statements the insured makes on the acceptance of this policy, and warrants to be true (the company), does hereby insure,” etc.

Another provision of the policy is that:

“An agent has no authority to change this policy or to waive any of its . provisions, nor shall notice to any agent or knowledge of his, or of any other person, be held to effect a waiver or change in this policy or any part of it. * * * No change whatever in this policy and no waiver of its provisions shall be valid unless an endorsement is attached hereto, signed by the president or secretary of the company, expressing such change or waiver.”

The original application contained the statement under clause 13:

“The following information is correct excepting as stated below. Note any exceptions. (A) I am not carrying nor have I applied for any other accident or health insurance, and the company will be immediately advised by me if any such insurance is applied for. * * * (E) I have never had any application for insurance declined nor any accident or health insurance policy canceled or renewal refused. (F) No indemnity for any accident, disease or sickness disability has ever been received or refused me.”

This is followed by the agreement to accept the policy on the conditions just stated above.

The plaintiff offered testimony tending to show that, when this policy was issued, Wrock, Watson & Everhardt were acting as agents or brokers for the defendant company ; that they acted through one Eastman, who was the State agent; and that the application was handed by them to Eastman, and by him forwarded to the home office in Chicago, and the policy there issued, based upon the application, The policy, under the head of “Schedule of Warranties Made by the Insured on the Acceptance of This Policy,” had the following underwritten:

“ Other than as above stated, I have never received any injury or suffered from any disease or sickness of any character. * * * No application ever made by me for insurance has been declined and no accident or health policy issued to me has been canceled, or renewal refused» except as herein stated. (None was stated.)
“I have never received nor been refused indemnity for any accident, disease or sickness, except as herein stated.”

The policy, in the body of it, is made “subject to all the conditions herein stated and endorsed hereon.” Wrock & Watson, who had taken the original application of plaintiff, had become State agents, and a renewal of the policy was asked for and the amount of premium increased. The renewal receipt issued by the company contained the recital:

“Provided the statements and warranties in the original contract are true at this date, and that nothing has occurred or exists at this date to render the hazard greater or different from that shown in the said contract.”

It would appear that, instead of issuing this duplicate receipt, a new policy to take the place of the old was forwarded, but this contained the provisions and warranties as to applications for insurance having been declined, and as to the assured having received indemnity from other companies.

The evidence shows that the authority of Wrock & Watson as State agents was limited to receiving applications and forwarding same to the home office. They themselves had no authority to issue policies. The claim of the plaintiff is that, when the original application was taken, he informed Messrs. Wrock & Watson that he had received indemnity in small sums from two other companies at different times, and also informed them as to the fact of his having been rejected by the Iowa State Traveling Men’s Association, but that he was advised by them as to the 'first that it was not necessary to insert it in the application, and, as to the second, that it was equally unnecessary to insert it, because the Iowa State Traveling Men’s Association was not really an insurance company. No reasonable claim can be made upon the record that the plaintiff did not know that these statements were in fact embodied in the application, and that they were untrue in fact. It was a case, therefore, in which he joined with the agents of the defendant, if they are to be so treated, in deceiving the company. They were not authorized to issue the policy. It was known, both to the plaintiff and to the agents, that the company would act upon the representations contained in the application. It was known to them when the policy was received that the company had acted upon this representation, and that the company understood that he had not received previous compensation for injuries, and that he had not been rejected by any other company.

These questions may or may not be of importance to insurance companies. They certainly have the right to make them material. In all lines of insurance the moral risk involved is regarded as of very great importance, and it cannot be said that an insurance company has not the right by its contract to make the questions which are here adverted to essential. The circuit judge, in directing a verdict by the jury for the defendant, reached the correct result. We think the language of Mr. Justice Moore, in Ketcham v. Accident Ass’n, 117 Mich. 521 (76 N. W. 5), is peculiarly applicable:

“The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents.”

This case is quoted with approval by Mr. Justice Ostrander in Haapa v. Insurance Co., 150 Mich. 467 (114 N. W. 380, 16 L. R. A. [N. S.] 1165, 121 Am. St. Rep. 627). See, also, Metropolitan Life Ins. Co. v. Freedman, 159 Mich. 114 (123 N. W. 547).

We think the circuit judge reached the correct conclusion, and the judgment will be affirmed.

Ostrander, Moore, McAlvat, and Brooke, JJ., concurred.


author: McAlvay, J.

text:
    FROHLICH v. KLEIN.

    1. Contracts — Building Contract— Architect's Certificate— Fraudulent Issuance.
    Under a contract for the construction of a store building, which provided for the issuance of a final certificate by the architect who gave the contractor, on condition that he comply with certain requirements, a final certificate of completion before the work was finished, the certificate was a fraud on the owner and was not conclusive of the proper-performance of the contract.
    2. Same — Acceptance of "Work.
    It was not an acceptance of the work for the owner to move into the building without in any way indicating his acceptance of the same, when he was obliged by necessity to do so.

    3. Mechanics’ Liens — Defective Materials — Breach of Contract.
    Failure of subcontractors and contractors under a building contract to furnish materials and labor according to specifications precludes any right to a mechanics’ lien, where the owner is entitled to a judgment for damages in excess of the balance due for the building arising out of such default.
    4. Same — Contracts—Excuses for Breach.
    Such failure is not excused on the ground that the owner prevented performance of the contract, where the contractor at no time offered a substantial compliance with the specifications and the owner insisted on complete performance.
    5. Same — Parties Entitled.
    The lien law protects those who are entitled to protection, but it was not intended to project materialmen and contractors in perpetrating wrongs against the owner of the property.
    Appeal from Wayne; Donovan, J.
    Submitted December 14, 1909.
    (Docket No. 18.)
    Decided March 5, 1910.

      Bill by Simon Frohlich against William Klein and Fredericks Klein and Gustav A. Hansel and William Schmidt, copartners as Hansel & Schmidt, to enforce a mechanics’ lien. Defendants Klein filed an answer in the nature of a cross-bill claiming affirmative relief. From a decree for complainant, defendants Klein appeal.
    Reversed, and decree entered for appellants.
    Lucking, Emmons & Helfman, for complainant.

      Harry L. Schellenberg, for defendants Klein.

      M. M. Nesbitt and Henry C. L. Forler, for defendants Hansel & Schmidt.

       Rehearing denied May 7, 1910.

       As to effect of use of building by owner as an acceptance of work of construction or repair, see note to Pope v. King (Md.), 16 L. R. A. (N. S.) 489.

   McAlvay, J.

This is a bill filed by complainant, who was a subcontractor, to foreclose a mechanics’ lien for a balance of #118.38 claimed to be due him. To this bill of complaint defendants Hansel & Schmidt, who were the principal contractors, filed their answer, admitting all of its allegations. Defendants Klein and wife, the parties for whom the building in question was built, and who were the parties who entered into the original contract with Hansel & Schmidt, answered in the nature of a cross-bill, praying for affirmative relief against complainant and defendants Hansel & Schmidt. They denied that complainant was entitled to relief, alleging that the factory work furnished by him was not according to plans and specifications in quality or condition, or workmanship. They set up the original contract with Hansel & Schmidt, showing that they had paid on the contract price $5,953, that the contract was not performed or material furnished according to its terms, specifying in what respects they had failed in performance, whereby they suffered great damages, for which a decree was asked. To this cross-bill complainant and defendants Hansel & Schmidt answers the latter claiming a balance of $256.30, due on their contract, which amount includes complainant’s claim. The several issues joined in the case were heard before the court, and a decree was granted complainant and Hansel & Schmidt for the amounts claimed by them less a deduction of $22 from the claim of the latter made on account of some small matter not performed.

The original contract and specifications for the erection of this building are of great length. The case does not require that they be set forth in full. The principal and material agreements will be considered. Hansel & Schmidt agreed in writing on March 21, 1906, to provide all the materials, and perform all the work necessary, to build a brick veneered store and flat building, and a frame barn, on the southwest corner of Mt. Elliott and Warren avenues, in the city of Detroit, according to drawings and specifications prepared by the architect, which were made a part of the contract; the whole work tobe completed on or before July 1, 1906, for the sum of $6,145. The contract’provided that the work was to be done under the direction of the architect, and “that his decision as to the true construction and meaning of the drawings and specifications shall be final.” Also:

“It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract except the final certificate or final payment shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.”

Complainant and the contractors both insist that the record shows that this contract was properly performed and that proper materials were used; and relied upon a final certificate furnished by the architect. The contract provided that payments should be made only on the certificates of the architect, and final payment to be made within 30 days after the completion of the work. A certificate final in form was furnished by the architect, but this was done before the work was completed. The record shows that at that time the architect had knowledge that the specification that “all joists supporting partitions above, running the same direction to be doubled and well spiked together if no partition below,” had not been complied with. He testifies that this had been overlooked. He also testifies that he gave this certificate to the contractors conditionally. He had their promise that certain things would be done. The partition was set upon a joist which was not doubled as required and which caused a settling, to the great damage of this building. It does not appear that to remedy this defect was one of the conditions the contractors were to fulfill, but in a memorandum made by him there were 15 items which he claims were satisfactorily fixed afterwards. Whether they were or not can have no bearing upon his want of authority to issue a final certificate before the work was completed or upon conditions. The record shows without dispute that Mrs. Klein repeatedly telephoned for the architect, and he never came. He said it was very disagreeable to go up there, and he stayed away. As we understand the record, it was because Mrs. Klein was not at all satisfied with the work and was very insistent, and perhaps troublesome. Mr. Klein is a common laborer. His wife without doubt was. the master mind in the family, and attended to business affairs. The building was for a store downstairs and their residence upstairs. During its construction the family lived just opposite in a rented house. Mrs. Klein evidently was looking after their interests, and her activity in that regard appears to have been continuous. This final certificate is not conclusive upon Klein and his wife. It amounted in law to a fraud upon them. Other provisions of the contract which have a bearing upon the case are:

“The contractor must cover and protect his work and materials from all damage during the progress of the building and deliver the whole complete and in perfect condition.
“The contractor is at his own expense to repair and make good any defects, settlements, shrinkages, or other faults in his work (arising from his having used improper or defective material or workmanship) which may appear within twelve months after the completion of the building.
“All cellar (outside) walls below ground are to be plastered with Portland Cement one-half inch thick mixed with clean sand in proportion 1 to 2.”

It also provided that “all finishing material in first and second story to be clear Georgia pine free from defects, etc., kiln dried and rekiln dried before being used.” The contentions of complainants that the record clearly shows that the decree of the trial court was a proper determination of the case have been examined and considered, and we do not agree with them.

It would be of no profit to the profession to rehearse the evidence in the case, which shows the character of the building erected by the contractors and the quality of the materials and workmanship employed. The great weight of the evidence sustains the contention of defendants Klein and wife that the contractors did not comply with the requirements of the contract in many respects both as to materials and workmanship furnished. The cellar wall was not properly cemented on the outside. The cement floor in basement is cracked and broken. The ceiling of the store in material and work is bad. The doors and windows are shrunken and badly fitted. The store front leaks. The roof leaks at the flag staff. The plumbing in kitchen and second-story bathroom is defective. The outside painting is practically worthless. The lumber used in the interior finish is shown not to have been kiln dried as required by the contract. There were not the required hook strips in the closets, and the floor carrying a partition has settled. These are the most material defects, and sufficient to indicate the condition of the building.

It is urged that by moving into the building the Kleins accepted the work. This moving was a matter of necessity, and at no time was there any acceptance. They had a right to rely upon the terms of the contract, and also to expect fair dealing on the part of the architect. It is also urged that Mrs. Klein prevented the contractors from finishing the work. It appears that once a daughter had died, and another time Mr. Klein was said to be sick, and the last time was when the contractor served notice of lien and was put out. Other times are claimed, but not specified, and it appears that at no time did they offer or intend to do more than some trifling things the architect had suggested at the time they secured the last certificate.

The Kleins had paid about $6,000 in cash for which they were entitled to receive the building Hansel &. Schmidt agreed to furnish. The materials furnished by complainant under his written agreement were not of the kind required by the plans and specifications, in reference to which he contracted, and he is not entitled to a mechanics’ lien on this building nor are the contractors, and it is the fault of both that they cannot succeed in these proceedings. The lien law protects those who are entitled to protection, but it was not intended to protect materialmen and contractors in perpetrating wrongs against the owner of the property.

The decree of the circuit court is reversed and set aside, and a decree will be entered in this court in favor of the defendants William Klein and Fredericka Klein and against Hansel & Schmidt upon their cross-bill for the sum of $530.34, being their damages found in the premises over and above the balance of the contract price of said building, together with their full costs of both courts, and that they also do recover against complainant Simon Frohlich solicitor’s fees of both courts, all costs to be taxed.

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