text:
    Oliver N. Taylor v. The Butters & Peters Salt & Lumber Company.

      Sale — Recoupment —Pleading — Evidence— Damages — Estoppel— Payment.

    1. A defendant is bound by his notice of recoupment, and cannot enlarge its scope by claiming damages not specified therein; citing Canal Co. v. Roberts, 72 Mich. 49.
    2. Where a contract for the sale of all of the slabs, edgings, and pieces trimmed from the lumber which the vendor’s mill might cut during the ensuing season fails to specify the lengths into which the material is to be cut, it will be assumed that it is to be of the lengths known to be produced by the vendor at his mill, and the vendee cannot, by notice to the vendor, change the contract so as to require him to cut the material of a length fixed in said notice.
    8. A contract for the sale of a quantity of slabs, edgings, and lumber trimmings provided for their delivery, piled on scows in reasonable condition for measurement, and gave the vendee the privilege of doing the piling, provided the cost was not thereby increased to the vendor. And it is held that this provision must be held to have been inserted for the purpose of giving the vendee the right to pile the material if dissatisfied with the manner in which the work was being done by the. vendor; that the vendee cannot ignore it, and make no objection to the manner of doing the work while it is being done, and then seek damages on account of being compelled to employ extra hands in unloading the scows in consequence of ■ the bad piling.
    4. Payments were to be made the first of each month for the material delivered during the previous month. Each party made measurements as the material was delivered. And it is held that if the vendee rendered monthly statements, showing his measurements, and accompanied each statement with a check for the amount shown to be due, and the vendor received the statements and checks without objection, and remained for any considerable time silent, and appropriated the proceeds of the checks without objecting to the vendee’s measurements, the vendor is estopped, in the absence of fraud or mutual mistake, from afterwards questioning said measurements.
    Error to Mason. (McMahon, J.)
    Argued October 12, 1894.
    Decided December 7, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Bishop & Hutton (Dovel & Smith, of counsel), for appellant.

      E. N. Fitch, for plaintiff.
   Grant, J.

On March 11, 1893, the plaintiff and defendant made a written contract, by which the plaintiff agreed to sell to the defendant, for its own consumption only, all the slabs, edgings, and pieces trimmed from the lumber which his mill might cut during the season of 1893; to deliver them, properly piled, on scows alongside its mill dock, at the point designated by it; and the defendant agreed to pay for the same 80 cents per cord. It was understood that they were to be measured upon the scows, and were to be piled thereon by the plaintiff in reasonable condition for measurement. Payments were to be made the first of each month for the materials delivered during the previous month. Delivery was commenced April 24. Previous to May 5 the defendant made complaints to plaintiff that the scows were not properly loaded. Plaintiff then made a change for the better in loading, and no complaint was afterwards made until the close of the season. Each party made measurements as the material was delivered; the plaintiff’s measurements making 8,702 L03-120 cords, the defendant’s measurements making 7,591 1-6 cords. The defendant paid each month according to its measurements. -This suit is instituted to recover the balance claimed to be due. The defendant, with its plea •of the general issue, filed notice of recoupment for failure •on the part of the plaintiff to perform his contract. Plaintiff’s claim was $1,274.95, which included two small items about which there is no dispute. He recovered a verdict and judgment for $1,151.53.

1. The first assignment of error is that the court erred in refusing to permit the defendant to show, upon cross-examination of plaintiff’s agent, how much of the entire quantity of slabs, edgings, and lumber trimmings was four feet long. The contract contained no specification as to the length of the material. It is, however, claimed that the parties placed a practical construction upon the contract, and the defendant’s counsel, when the question was ■asked, stated that the material, according to his version of the contract, was to be four feet long. The defendant received and used the entire material furnished. Its notice •of recoupment' is very full and explicit, containing five •counts. In this notice no claim is made for damages on account of the material being in excess of four feet for any other reason than that it could not, for that reason, be correctly piled, and could not be unloaded without great loss of time, and that by reason thereof the carriers became choked and clogged, and the carrier chains broken. The defendant is bound by this notice, and cannot enlarge its scope by claiming damages not specified therein. Delaware & Hudson Canal Co. v. Roberts, 72 Mich. 49. The testimony sought to be élicited was not essential to a •determination of the question of piling and measuring. The defendant gave no evidence to show that its carriers were 'clogged or the chains broken. There was no error, therefore, in its exclusion.

2. The same reasoning applies to the exclusion of a letter written by the defendant to the plaintiff July 10. It reads as follows: '

“We have just ordered for the stave machine an attachment for making 2-inch staves. We will therefore require all of the edgings cut to 31 inches. The writer has on several occasions requested this, thinking you would decide that it was only our due that you should make the change in your trimmer to cut to 31 inches, as our claim under the contract is that we are not to take anything but four feet. While you are cutting the slabs 31 inches, as requested by us, we are perfectly willing to take the slab trimmings; but if you do not see fit to make the change to cut the edgings 31 inches, we will have to request you to keep the shorter pieces out, as we will not pay for them. We request your immediate decision in this matter, as, on the commencing of your mill, we will .positively refuse to accept of anything shorter than four feet in the edgings.”

As already noted, the contract did not specify the lengths. They were undoubtedly to be of the length known to be produced by the plaintiff at his mill. The defendant could not by notice change the contract. The court, at the request of the defendant, charged the jury that it was not bound to receive or pay for any part of the slabs, edgings, and lumber trimmings that were too' short to pay for handling, and that were not regarded by' the parties as coming under the terms of the contract. We are unable to see that this letter would have afforded the jury any light upon the question in controversy.

3. It is next insisted that the court erred in instructing the jury that the defendant’s claim for damages, for extra expense in unloading the scows on account of bad piling, could not be allowed, because (1) under the contract the privilege was given to the defendant to do this piling, ■provided the cost was not increased to the plaintiff; and (2) because, after May 5, — about 10 days after work commenced, — no protest whatever was made by defendant as to the manner of piling, and no mention was made of any ■such claim until after this suit was brought. The precise claim of the defendant is that it was compelled to employ extra hands in unloading the scows in consequence of the bad piling. We hold the instruction correct. The mills •of both parties were in close proximity. This provision of the contract must be held to have been inserted for some purpose. We conceive none, unless it be to give the defendant the right to pile if it should be dissatisfied with the manner in which the work was done by the plaintiff. The law will not permit it to ignore this provision, to make no objection to the manner of doing the work while it was being done, and then seek damages for piling in a manner not contemplated by the contract. The learned circuit judge, at the request of the defendant, instructed the jury that it was the duty of the plaintiff to do the piling in a reasonably careful and workmanlike manner, so that measurement could be reasonably made, and under a very careful and fair charge left to them the determination of the amount delivered. •

4. It is alleged that the court erred in refusing the following requests of the defendant:

“If in this case you find that the defendant furnished monthly statements showing the measurement of the slabs, •edgings, and lumber trimmings received by it, accompanied . with checks covering the amount of such monthly statements to plaintiff, which were received by him without •objection for a time, he would be estopped by his silence from questioning such measurements.

“The furnishing of statements by the plaintiff, showing .a contrary amount of slabs, edgings, and lumber trimmings delivered, will not be considered by you as an objection on his part to the measurement of defendant until after such statements were actually furnished, which, under the evidence, was not actually done until the 28th of July.”

Upon this subject the court instructed the jury that if they found that the defendant rendered monthly statements, showing its measurements, and accompanied each statement with a check for the amount shown to be due by it, that plaintiff received these Avithout objection, and remained for any considerable time silent, appropriating the' proceeds without objection to the measurements, he would be estopped by such silence from afterwards questioning them, in the absence of fraud or mutual mistake. There was conflict of evidence upon this subject, and it was recognized as a proper question to be submitted to the jury. The charge of the court was a correct statement of the law.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, O. J.

license: Public Domain

text:
    Frank M. Totten v. Daniel Burhans.
    [See 91 Mich. 495.]

      Fraud — Evidence—Trial—Practice in Supreme Court — Assignments of error — Conduct of counsel — Directing verdict.

    1. An . assignment of error that the court erred in permitting a witness to answer a given question will not be considered where the record fails to show that the question was answered.
    2. In an action against one partner by the purchaser of his interest in the firm business and assets for falsely representing as good and collectible certain accounts included in the purchase, it is competent for the plaintiff to show that the interest of the other partner was merely nominal.

      3. The plaintiff, after the purchase, formed a partnership with the other partner, and after running the business for a time resold it to the defendant. On the trial said partner testified in behalf of the defendant as to the manner of selecting the assigned accounts, and that all of the accounts were not assigned to the plaintiff. Plaintiff claimed that he was to have gilt-edged accounts. And it is held that it was competent, upon cross-examination, to show the amount of the unassigned accounts, and what had been realized upon them, and, as bearing upon the credit to be given to the testimony of the witness, to show the relations between him and the defendant, and the agreements between them respecting the resale.
    4. Where, after the giving of certain testimony, an objection to “going into the inquiry” thereby suggested is overruled, and the inquiry on that line ceases, and no motion is made to strike out the testimony, an assignment of error based upon an exception to said ruling will not be considered.
    5. A motion to strike out all of the testimony of a witness on a given subject is properly denied where a portion of the testimony is competent.
    6. An objection that the charge of the court as given excluded from the consideration of the jury the defendant’s theory is held untenable, it appearing that seven of his nine requests to charge were given; that error is not assigned upon the two^ not given; and that one of the requests given was that, if the jury believed the testimony of the defendant and his witnesses,, they must find in his favor.
    7. An assignment of error based upon the alleged use of improper language by the counsel for the appellee in addressing the jury will not be sustained, where the Court cannot say thgt the facts disclosed by the record exclude the inferences which the counsel thought them susceptible of, as evidenced by the language complained of.
    8. An exception to the refusal of the court to direct a verdict in favor of the defendant on his motion, made at the close of the plaintiff’s proofs, is waived by defendant’s^ proceeding to introduce testimony.*

      Error to Shiawassee. (Newton, J.)
    Argued November 1, 1894.
    Decided December 7, 1894.
    Case. Defendant brings error.
    Affirmed.
    The facts ■are stated in the opinion, and in 91 Mich. 495.

      Watson & Chapman, for appellant.

      S. F. Smith (G. R. Lyon, of counsel), for plaintiff.

       Directing verdict.
      For cases bearing upon the question of the direction of a verdict in favor of the defendant on his motion, see:
      1. Morley v. Insurance Co., 85 Mich. 210, holding that the trial judge is under no obligation to charge the jury until both parties have rested, and announced the testimony as closed; that the defendant may, if he chooses, rest upon the plaintiff’s showing, but, until he fias so announced to the court, he is not in a position to insist legally upon-instruction to the jury.
      2. Denman v. Johnston, 85 Mich. 887, holding .that if a defendant chooses to rely upon a motion to direct a verdict, which .amounts to a demurrer to the evidence, he must do so absolutely, •and be bound by the disposition which the court may make of the case, and he has no right (except in the discretion of the court), after a ruling upon the motion, to introduce testimony.
      See, to a similar effect, Hinchman v. Weeks, 85 Mich. 535; Clow v. Plummer, 85 Id. 550; Kelso v. Woodruff, 88 Id. 299.

   McGrath, O. J.

For a statement of the facts herein, reference is made to 91 Mich. 495.

Twelve of the sixteen assignments of error relate to the admission of testimony, two to remarks of counsel made during the trial, one to instructions given by the court to the jury, and one to the refusal to direct a verdict for defendant.

1. The first assignment alleges error in permitting an .answer to a given question, but from the record it does mot appear that the question was answered.

2. Plaintiff was asked what was said, if anything, about 'Chase’s partnership, and what was the extent of it. The •conversation referred to was that in which the representations complained of were made. Plaintiff was a purchaser of defendant’s interest in the business. It was entirely competent to show that Chase’s interest was a merely nominal interest.

3. On redirect examination, plaintiff was asked the following questions:

“Did you employ Mr. Burhans’ son as bookkeeper?

“ Where was the business transacted, — in what building?

“ Where did he [Burhans] keep his office?

“What knowledge did Burhans have, relative to the collection of these claims?

“ State whether Burhans talked with you about these claims, and the collection of them, and what parties were owing them during this time.

“ When you went out to make collections, state how you were informed of the business, — that is, of the accounts to be collected; where did you go for information as to what you were to do?”

On cross-examination of plaintiff, the following questions were asked:

Q. What security did Burhans take, if any, from you and Chase, that you would pay this $6,200 and some odd dollars you had assumed to pay?

“A. He didn’t take any security, so far as I know.

Q. Burhans turned these accounts over to you, and ■didn’t have the scratch of the pen that you would carry out your agreement with him, did he?

“ A. No, sir; I don’t think there was any written contract.”

Plaintiff had already testified in his direct examination that certain of the accounts assigned to him had been collected by one Long, one of defendant’s agents, before the transfer. On cross-examination he was asked as to his personal knowledge of that fact. He was further asked as to the diligence used in making collections, and as to his information as to the responsibility of certain of the parties indebted upon the assigned accounts. As bearing upon the question of defendant’s security, plaintiff stated that it was one of the conditions of the sale.that defendant’s son should be employed as bookkeeper; that he was so employed, and defendant was in a situation to be advised ■of the collection of accounts, and the appropriation of the proceeds to the liquidation of the assumed indebtedness. Plaintiff sought further to show that he obtained his information as to the collections made by Long partly through defendant, and, as bearing upon the means used to make-collections, and the diligence exercised, that he acted upon information given and suggestions made by defendant, who-was in a situation to advise, and who knew what was being done in that direction.

4. Error is assigned upon the remarks of counsel made-during the discussion of the questions relating to the admissibility of certain testimony offered by plaintiff. We-find nothing in the statements made which was calculated, to prejudice the defendant.

5. The eighth assignment cannot be considered. Objection vp as made, after answer given, to going into the inquiry. The inquiry on that line ceased, and no motion-was made to strike out.

6. A motion was made, after the cross-examination, to-strike out all the testimony of a witness “in regard to-these accounts about which he testified, because there is no showing that they were the accounts turned out to the firm of Chase & Totten, but, on the contrary, there is evidence that they were not; that some of them were accounts for goods sold by " the witness after the transfer. The transfer to plaintiff was made in the month of February, and witness went into plaintiff's employ early in March. The list of accounts was taken from the books, and giving to him for collection. The witness says that they were “what we called 'back numbers' at that time."' He commenced trying to collect “from the first start," as he expresses it. The motion covered all of the accounts-in respect to which he testified. If some of them were-accounts for goods sold by the witness, the motion ought to have been confined to them. There was evidence that the major portion of them were old accounts.

7. The tenth, eleventh, and twelfth assignments relate to the cross-examination of defendant’s witness Chase. The witness had testified as to the manner of selecting the assigned accounts, and that all of the accounts had not been assigned. Plaintiff claimed that he was to have gilt-edged accounts. It was competent, upon cross-examination, to show the amount of the retained accounts, and what had been realized upon them. It was proper also, as bearing upon the credit to be given to the testimony of the witness, to show the relations between the witness and defendant, and the agreements between them respecting the transfer.

8. The plaintiff proceeded upon the theory that defendant had guaranteed the prompt payment of the accounts transferred. The court instructed the jury that, if such was the agreement, plaintiff was entitled to recover such accounts as were not paid promptly, and that in such case plaintiff was not required to test the responsibility of the debtors by proceedings to enforce collection; that if, however, the accounts were simply represented as good and collectible, then the duty of reasonable effort and diligence in the collection of the accounts was assumed by plaintiff, and must be exercised before he could maintain this suit; that if they found that the accounts were good, and could have been collected by the exercise of ordinary diligence and care, their verdict must be for defendant. Defendant insists that the testimony of the defendant was opposed to either theory, and that the charge, as given, excluded from the consideration of the jury defendant’s theory,— that no representations whatever had been made. Counsel seem to overlook the fact that nine requests were presented on behalf of defendant, all but two of which were given; that error is not assigned upon the refusal to give the two not given; and that one of the said requests so given was that, if the jury believed the testimony of the defendant, his son, and Chase respecting the transaction, they must find for defendant.

9. The fifteenth assignment relates to language used by counsel for plaintiff in his address to the jury. We are not prepared to say that the facts disclosed by the record would exclude the inferences which counsel thought them susceptible of.

10. The sixteenth assignment is that the court refused to direct a verdict for defendant, and is based upon the denial of a motion made at the close of plaintiff’s proofs. Upon the denial of the motion, defendant proceeded to introduce proofs. The exception to the court’s ruling was thereby waived. Denman v. Johnston, 85 Mich. 387; Kelso v. Woodruff, 88 Id. 299.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J. McGrath, 0. J.

text:
    Mary Hutchinson v. The City of Ypsilanti.

      Municipal corporations — Defective streets — Accumulations of snow and ice.

    The intention of the Legislature to create a liability on the part of municipalities for injuries received by reason of the accumulation along the sides of the streets and at the street crossings of snow removed from sidewalks for foot travel, and, in cases of deep snows, removed to clear a track in the streets for the passage of vehicles, which snow has been changed by the weather to ice, does not appear in the statute imposing liability upon municipalities for defects in public highways.
    Error to Washtenaw. (Kinne, J.)
    Argued June 21, 1894.
    Decided December 18, 1894.

      Case. Plaintiff ■ brings error.
    Affirmed.
    The facts are stated in the opinion.
    ' F. Hinckley, for appellant.

      John P. Kirk (J. Willard Babbitt, of counsel), for defendant.
   Grant, J.

The plaintiff’s cutter was overturned 'by an accumulation of snow and ice on a street of the defendant city. Some of the snow had been thrown off the streetcar tracks by the street-car company, where they curve around the corner of Cross and Washington streets, and some thrown off the sidewalk and crosswalk. About a week before the accident, there had been a heavy snow, and other snows had fallen meanwhile, making an average depth of one foot. The first snow was also accompanied by rain. Plaintiff and her husband drove upon this ridge in turning the corner.

Plaintiff claims the right of recovery unqler the statute imposing liability upon municipalities for defects in public highways. The court held that the case was ruled by McKellar v. City of Detroit, 57 Mich. 158. We think the instruction correct. See, also, Rolf v. City of Greenville, 102 Much. 544.

The cases of Joslyn v. City of Detroit, 74 Mich. 458, and Hayes v. City of West Bay City, 91 Id. 418, do not control the case at bar. In the former a pile of sand had been left in the street by the express authority of the city for about four weeks. In the latter, a building, which was being removed, was in the street, by the express authority of the city, and under the supervision of its officers. In each the city was an active agent in placing the obstruction.

In some municipalities lot-owners are required by ordinance to clear their sidewalks, and in others it is done by the municipality by the use of snowplows. Private persons and municipalities have the right to remove the snow from sidewalks for foot travel, and, in cases of deep snows, to clear a track in the highways for the passage of vehicles. This necessarily implies the piling up of snow to a greater or less extent along the sides of the streets and at the crossings. It would be unjust to hold municipalities liable for damages for such accumulations which have been changed by the weather to ice. The intention of the Legislature to create such a liability must clearly appear. It does not appear in the statute. The reasons of this holding are stated with great clearness in the Mc-Kellar case.

Judgment affirmed.

Long and Hooker, JJ., concurred with Grant, J.

McGrath, 0. J.

Plaintiff was thrown out of a cutter, and injured, while traveling along one of the public streets of the defendant city. The cutter was overthrown by reason of a ridge of snow and ice formed near a crosswalk, by the scraping of snow from street-railway tracks which occupied the street. The court below, upon the authority of McKellar v. City of Detroit, 57 Mich. 158, directed a verdict for defendant. That, however, was a case where the ridge was formed by natural accumulations as affected by ordinary use, and in that respect is similar to the more recent case of Kannenberg v. City of Alpena, 96 Mich. 53. But the rule underlying the McKellar case was that an accumulation of ice and snow cannot be said to be a defect in the street or walk, within the contemplation of the statute.

In Joslyn v. City of Detroit, 74 Mich. 458, it was held that the statute made it the duty of the municipality, not only to repair defects, but to keep the street in a condition reasonably safe for travel. If the doctrine of that case is io be adhered to, the McKellar case must be regarded as -overruled, and the present case, and any case where a walk or street is rendered unsafe by the presence thereon •of ice or snow, must be held to be covered by the statute; • for, if a ridge is formed by ordinary use, or by the slewing of a sled, or by the drifting of the snow, or if ice is formed upon walks by the elements, neither is any the less unsafe by reason of the manner of its formation. The test applied in all cases must be, — and that is a question for the jury,'* — was the street or walk in a condition reasonably safe for travel? Under this ruling, a brick, a piece of ice, or a stick of cordwood which falls from a load, becomes a source of liability. The street itself may have been but recently paved, and put in the best of order; yet, within a few days, the municipality may be mulcted in heavy damages by the purest accident, the •carelessness of some individual, or the action of the -elements.

The cases of Bowen v. Railway Co., 54 Mich. 496; Wallace v. Railway Co., 58 Id. 231; and Laughlin v. Railway Co., 62 Id. 220, — do not depend upon the Joslyn case. They were brought against the persons creating the nui.sance. The Bowen case antedates the McKellar case. Under the rule in the Joslyn case, the municipality was liable in each of these cases. The use of streets by street railways is a mode of use provided by the Legislature, and yet for carelessness in that mode of use, not affecting the body of the street proper, the city is liable. The statute, us respects this question, was the same when the Joslyn case was decided as it was when the McKellar case was disposed of.

The title of the act of 1879 is—

“ An act for the collection of damages sustained by reason of defective public highways, streets,” etc.

The title of the act of 1881 is—

“An act to provide for the recovery of damages for injuries caused or sustained by reason of defective public highways, streets,” etc.

Clearly, the language in the first section “in condition reasonably safe and. fit for travel” is in the nature of a saving clause. This is, it seems to me, made clear by the language used in sections 2 and 3. The second section provides that if any horse or other animal, or any cart, carriage, or vehicle, or other property, shall receive any injury or damage by reason of neglect by any township, etc., whose duty it is to keep such public highway, etc., in repair, such township shall be liable, etc. Section 3 provides:

“It is hereby made the duty of townships * * * to keep in reasonable repair, so that they will be reasonably safe and convenient for public travel, all public highways, * * * and when the means now provided by law are not sufficient to enable any township ■ * * *• to keep its public highways * * * in good repair,. such township * * * is hereby authorized to levy such additional sum * * * as will enable it to-keep its public highways * * * in good repair.”

The Joslyn case is opposed to a number of the earlier decisions of this Court, as is demonstrated by Mr. Justice-Campbell in a dissenting opinion in that case. I think that the Joslyn case should be overruled, and the ruling of the court below in the present case sustained. There was no sufficient evidence in the present case warranting the court in submitting to the jury the question as to-whether the city had not taken part in the creation of the obstruction.

The judgment should be affirmed.

Montgomery, J., did not sit.


author: McGrath, C. J.

text:
    Adolph Lustfield v. Thomas Ball et al.

      Execution — Satisfaction of judgment — Stay bond — Inability of surety.

    1. A levy on personal property sufficient to satisfy the execution will not operate as a satisfaction of the judgment where the property is left in charge of the execution debtor, and by some aet for which he is responsible, or in which he acquiesces, it is placed beyond the power of the officer, or when the debtor converts it to his own use, or where he has not been actually divested of the property.
    2. Six days after the rendition by a justice of the peace of a judgment in favor of the plaintiff for a sum exceeding $50, exclusive of costs, the defendant’s attorney filed with the justice a paper, properly entitled in the suit, and signed and sealed by a third person, by which, after reciting the rendition of the judgment and its amount, he acknowledged himself surety for the stay of execution on said judgment, and for the payment by the defendant to the plaintiff of the damages, with interest and costs, at or before the expiration of 6 months from the commencement of the suit, and agreed to pay the same to the plaintiff at or before the expiration of said 6 months. And it is held that the stay was good under How. Stat. § 6963, which provides that the party against whom a justice’s judgment shall be recovered may stay the execution thereon until the expiration of the time prescribed in the statute by giving to the party in whose favor judgment was obtained, and filing with the justice, within o days after the justice shall be authorized to issue execution thereon, security in writing, with one or more sufficient sureties, satisfactory to the judgment creditor or the justice, for the payment of the money, with interest and costs, at or before the expiration of 4 months from the commencement of the suit, if such money shall not exceed $50, exclusive of costs, and at or before the expiration of 6 months, if such money exceeds $50, exclusive of costs.
    Appeal from Iron. (Stone, J.)
    Argued October 2, 1894.
    Decided December 18, 1894.

      Bill to declare a stay of execution null and void, etc. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Julius J. Patelc (B. M. Thompson, of counsel), for complainant.

      Moriarty & Abbott, for defendants.
   McGrath, C. J.

On March 21, 1893, Edward Sweeney recovered judgment in justice’s court against the Deer River Lumber Company. On March 27, 1893, defendant’s attorney filed with the justice the following paper:

“ Edward Sweeney, Complainant,

vs.

“Deer River Lumber Co., Defendant.

Before John Morrison, one of the Justices of the Peace in and for the County of Iron.

“County of Iron — ss.

Whereas, judgment was rendered in the above-entitled cause on the 21st day of March, 1893, by the above-named John Morrison, one of the justices of the peace in and for said county, in favor of Edward Sweeney, the above-named plaintiff, against the Deer River Lumber Company, the above-named defendant, in the sum of $188.71 damages, and $5 cost of suit:

“ Therefore I do acknowledge myself surety for the stay of execution on said judgment, and for the payment by said defendant to the plaintiff of said damages, with interest and said costs, at or before the expiration of 6 months from the commencement of said suit, and do agree to pay the same to said plaintiff at or before the expiration of the time aforesaid.

“Witness my hand and seal this 27th day of March, A. D. 1893.

“Adolph Lusteield. [l. s.]

“Signed, sealed, acknowledged, and delivered in the presence of

“ John Morrison,

“Justice of the Peace.

“I approve of Adolph Lustfield as surety for the stay of execution aforesaid.

“John Morrison,

“Justice of the Peace.

STATE OF MICHIGAN,

“ County of Iron.

“Adolph lustfield, the surety to the foregoing stay of execution, being duly sworn, says that he is worth the ■sum of $500 in property liable to execution, over and.. above all liabilities and exemptions.

“Adolph Lustfield.

“Subscribed and sworn to before me this 27th day of March, A. D. 1893.

“Albert Elewelling,

“Notary Public, Iron County, Michigan.”

At the expiration of the time, execution was issued, and ■a levy was made upon certain goods in Lustfield’s store. The goods were selected, set apart, placed in boxes, and ■Charles Lustfield, a brother of complainant here, who was the clerk in charge of the store, gave a receipt for the goods, as follows:

“ Eeceived September 9, 1893, of the said sheriff, 'Thomas Ball, the goods and chattels above mentioned, which I promise to deliver to him at the store of Adolph Lustfield, in the village of Crystal Falls, in the county of Iron, on the 18th day of September, 1893, before 10 •o’clock in the forenoon; or, in default thereof, I do hereby agree Avith the said Thomas Ball, the said sheriff, to pay him the amount due upon the said execution, and costs .and interest.

“Dated September 11, 1893. Charles Lustfield.”

When the sheriff returned for the goods, he was unable to find them. Charles Lustfield stated to the sheriff that “the store had been robbed; they were taken; they were not there, anyhoAV.” The sheriff asked if there were any locks broken, or bolts, or doors, or anything of that kind, that he knew of, and Lustfield said he guessed not. Complainant claims to have been away from the store when the levy was made, and to know nothing about the whereabouts of the goods; that when he came home he was told of the levy, and asked what became of the goods, — where the goods were, — and his brother said, “'That is all right/ I didn’t pay any more attention to it. He says, 'I gave them a bond.’”

It is urged that the undertaking of the surety is not in accordance with the statute, under the rule laid down in Cox v. Crippen, 13 Mich. 502, and this bill is filed, alleging that the sheriff threatens to make another levy, and praying that the paper purporting to be a stay of execution be declared to be null and void as against complainant, and that it be delivered up, canceled, and destroyed; that the sheriff be restrained from levying said execution upon the moneys or effects of complainant; that the justice be restrained from issuing any further execution upon such judgment against complainant, and from making any transcript of said stay of execution, and that plaintiff in said judgment be restrained from taking out a transcript to the circuit court.

We think that the stay is good under How. Stat. § 6963.

As to the other question, the goods seized on the execution were left in complainant’s store in possession of complainant’s brother, who was complainant’s clerk, and the record does not satisfactorily show that complainant was divested of the goods. A levy under an execution on personal property sufficient to satisfy such execution is ordinarily regarded as a satisfaction of the judgment, but it does not so operate when the property is left in charge of the execution debtor, and by some act for which he is responsible, or in which he acquiesces, it is placed beyond the power of the officer, or when the debtor converts it to his own use, or where he has not been actually ■divested of tbe property. 2 Freem. Ex’ns, §§ 261, 269; Starr v. Moore, 3 McLean, 354; U. S. v. Dashiel, 3 Wall. 688; People v. Hopson, 1 Denio, 574; Bank v. Hallett, 8 Cow. 192; Mickles v. Haskin, 11 Wend. 125; Cummin’s Appeal, 9 Watts & S. 73; Young v. Cleveland, 33 Mo. 126; Cornelius v. Burford, 28 Tex. 203; Wade v. Watt, 41 Miss. 248; Cooley v. Harper, 4 Ind. 454; Smith v. Hughes, 24 Ill. 270.

The decree dismissing the bill is affirmed, with costs to ■defendants.

Long, Grant, and Montgomery, JJ., concurred. Hooker, J., did not sit.


author: Grant, J.

text:
    Lydia H. McHugh et al., Proponents, v. Margaret Fitzgerald et al., Contestants.

      Will — Mental competency — Undue influence — Evidence.
    A testatrix devised her entire estate to three of her five sisters, who presented the will for probate. Two of the half-sisters of the testatrix contested the will on the grounds of mental incompetency and undue influence. The testatrix died of pneumonia. The will was executed about noon of the day preceding her death. The devisees resided in another state. The testatrix directed them to be summoned, and they arrived the night previous to the execution of the will, and were present when it was executed. In affirming a judgment sustaining the will, the following points are decided:
    a — A physician who attended the testatrix during her last illness testified that he visited her four times the day the will was executed; that her mind seemed clear whenever she was spoken to; that she answered all questions intelligently, and seemed to appreciate everything that was going on about her, except when left alone, and that he thought she was competent to make a will. And it is held that the testimony referred to the mental, and not to the physical, condition of the testatrix, and was clearly competent.
    6 — The opinion of the scrivener who drew the will as to whether or not undue influence was exercised was incompetent.
    c — Evidence of the relations and intercourse existing between the testatrix and her sisters and half-sisters, and of her statements that she intended that the devisees should have her property, was competent.
    d — The testatrix had no children. And it is held that any circumstances tending to show that she preferred the deviseesto the contestants was competent, as showing a reason for the disposition of her property, and had an important bearing upon the question of undue influence.
    e — The testimony of one of the proponents that the testatrix had stated to the witness that she intended to leave her property to the proponents was not within the prohibition of 8-How, Stat. § 7545, which provides that when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own hehalf, shall not be admitted to testify at all as to matters which, if true, must have been equally within the knowledge of the deceased person.
    / — A witness who, with her daughter, saw the testatrix in the evening of the day the will was executed, testified that-she recognized both her and her daughter; that witness had no trouble in understanding the testatrix; that she told witness that she was taken sick the Sunday night previous; that witness asked if she could do anything for her, and she answered, “No;” that the testatrix seemed to understand and to be competent; that her mind seemed to the witness to be-clear; that “she seemed to be clear enough.” And it is held that this testimony cannot be construed into an opinion as to the competency of the testatrix to make a will, but only as to her condition at the time, and her ability to talk and understand.
    g — The cross-examination of one of the proponents in probate court regarding certain admissions which it was claimed she had made, but which, when fairly construed, amounted to no more than a conjecture on her part that the testatrix might, if one of the contestants had been present when the will was executed, have made a different disposition of her property, proved no fact tending to show undue influence or mental incompetency, and was properly excluded under the ruling in Benaud v. Pageot, 102 Mich. 568.

      Error to Wayne. (Frazer, J.)
    Argued October 9, 1894,
    Decided December 18, 1894.
    Appeal from an order of the probate court disallowing the probate of a will. Contestants bring error.
    Affirmed.
    The facts are stated in the opinion.

      James H. Pound and Cassius Hollenlech, for appellants.

      Charles Flowers, for proponents. "

   Grant, J.

The will of the testatrix, Mrs. Dunn, was contested on two grounds, — mental incompetency and undue influence. The jury rendered a verdict sustaining the will.

• Mrs. Dunn died of pneumonia. The will was executed about noon of the day preceding her death. The proponents, to whom the property was devised, were her sisters; the contestants, her half-sisters. The proponents lived in Buffalo, N. Y. Mrs. Dunn directed them to be summoned. They arrived the night previous to the execution of the will, and were present when it was executed.

There are 48 assignments of error, of which those will be noticed which we consider of importance.

1. Dr. Dufifield Stewart had known Mrs. Dunn for 12 or 15 years, and attended her in her last sickness. He-testified fully as to her condition and disease, and that,, “when left alone, she would wander off and talk to herself." He visited her four times the day the will was executed, — in the morning, about noon, late in the afternoon, and again in the evening. He testified that her ■ mind seemed clear whenever she was spoken to; that she answered all questions intelligently; seemed to appreciate everything that was going on about her, except when she was left alone. He then testified, under objection, that he thought she was competent to make-a will. The testimony did not refer, as counsel claim, to her physical, but to her mental, condition. The testimony was clearly competent.

2. The scrivener who drew the will testified that the proponents were present; that Mrs. Dunn was very weak; that he did not think he understood a word spoken by her to him or anybody else; that she tried to speak, but he could not understand her. He further testified fully to all that was said and done by the proponents and by himself. On cross-examination by contestants’ counsel, the witness was asked:

ccSo that, as far as that is concerned, while it might possibly have met her approval, practically that was the sisters’ will?”

This was one of the questions, viz., that of undue influence, upon which it was the province of the jury to pass. His own opinion on this subject was incompetent .and properly excluded.

3. Evidence of the relations and intercourse existing between Mrs. Dunn and her sisters and half-sisters, and prior statements that she intended the proponents should 'have-her property, were competent evidence for the consideration of the jury. Mrs. Dunn had no children, and any circumstances tending to show that she preferred the proponents to the contestants was competent, as showing a reason for the disposition of her property, and had an important bearing upon the question of undue influence.

á. The testimony of one of the proponents that Mrs. Dunn had' stated to her that she intended to leave her property to them is not within the prohibition of section 7545, 3 How. Stat. Brown v. Bell, 58 Mich. 58; Schofield v. Walker, 58 Id. 96; Lautenshlager v. Lautenshlager, 80 Id. 290.

5. A Mrs. Bayliss had known Mrs. Dunn for about 25 years. She and her daughter saw Mrs. Dunn in the evening of the day the will was executed. She testified that Mrs. Dunn recognized them both;' that witness had no trouble in understanding her; that Mrs. Dunn told her she was taken ill the Sunday night previous; that witness asked her if she could do anything for her, to which she replied, “No;” that, while witness was fanning her, she had occasion to get up; that she called for Jennie, and asked witness to leave the room. The witness was then asked, “Would you say at the time whether she understood or was competent?” to which she replied, “She seemed to be.”

Q. What would you say as to whether at that time her mind was clear?

“A. It seemed to me to be. She seemed to be clear enough.”

We think this testimony cannot be construed into an opinion as to her competency to make a will, but only as to her condition at the time, and her ability to talk and understand. The claim was made by the contestants that she had then lost the power of speech. It is not clear that the witness’ opinion as to her competency to make a will would not have been proper, under the decision in People v. Borgetto, 99 Mich. 336. We find no error in this.

6. A physician testified for the contestants that a delirious person was not competent to comprehend business subjects, and gave other similar testimony, based upon hypothetical questions. On cross-examination the witness was permitted to answer, under objection, several questions, of which the following is an example:

“Suppose this woman, on Saturday morning, should tell her sisters and those around her that she wanted some one to go. and get somebody to make a will. Would that be evidence of delirium?”

These questions covered certain facts which, the proponents claimed to have proven. The questions might-very properly have been excluded, a-s it required no evidence to substantiate the facts inquired about. It is common knowledge that the conditions referred to in the-questions are not evidence of delirium, but of its absence. We cannot therefore hold that the testimony was prejudicial.

7. Testimony was introduced showing that contestants-took no steps to contest this will until approached by an attorney who went from Detroit to Buffalo to see them about instituting suit. The court subsequently ruled all this testimony out, and instructed the jury that they must-not consider it. The error complained of was thus cured.

8. Mrs. Shattuck, one of the proponents, testified in the probate court. Counsel for contestants offered in evidence-a portion of her cross-examination in that court, in which she testified that she asked Mrs. Dunn if she wanted to-make a will, and also the following:

“ Q. Don’t you think, if there had been another sister there, the property would have gone to the four?

“A. Perhaps it would. I could not say as to that.

“ Q. Didn’t you say as much to a friend afterwards?

“A. I said, if they were there, perhaps they would have-got a share.

“ Q. Did you say fperhaps’ ?

“A. I guess I did.'

Q. Didn’t you say it was because the other sisters-were not there that she gave you the property?

“A. I think perhaps, if they were there, she would have shared it. I could not say she would, but I think perhaps, if they were there, she would have shared it; perhaps even with them.”

It is insisted that this was an admission against the interest of Mrs. Shattuck and the other proponents, and was, therefore, competent, under the decision in Re Estate of Lambie, 97 Mich. 49. In that case the admission was that the will had been revoked. The testimony in this case refers to no fact, but, fairly construed, amounts to-no more than a conjecture on the part of the witness that Mrs. Dunn might have made a different disposition of her property. It proved no fact tending to show undue influence or incompetency. We think the court was justified in excluding it, under the ruling in Renaud v. Pageot, 102 Mich. 568, and authorities there cited.

9. Many errors are assigned upon the charge of the court. We deem it unnecessary to mention them specifically. The charge was very full and fair, and clearly defined the two issues to be determined by the jury. Several of the requests of counsel for contestants were given, three of which are as follows:

“Unless proponents, have satisfied the jury, by a preponderance of evidence, that Delia Dunn understood substantially the nature of the act she did in making the will, and the same was her own act, and unless, too, she understood the nature of the act, the extent of her property, her relations to others who might or ought to be the objects of her bounty, and the scope and bearing of the provisions of her will, and had sufficient active memory to collect in her mind, without prompting, the elements of the business to be transacted, and to hold them in her mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them, then she was mentally incompetent to make a will, and the paper in suit is not her last will and testament; that is, if you shall find that she was incapable of doing all these things at the time of the execution of the will, then, being incompetent to make a will, if you shall so find, you shall declare this paper not to be her last will and testament.”

“The will must have been the free, voluntary act of Delia Dunn, not that of her sisters; and, if the jury believe the paper offered in evidence is the product of the sisters Mrs. Shattuck, Mrs. Young, and Sirs. McEwan, then it is not the will of Delia Dunn, and it should be disallowed by the jury.”

“If the paper in suit is the result of the exercise of will upon Delia M. Dunn in her sickly and dying condition, — that is, provided you shall find she was in that condition, — she could not resist, and did not resist them, this paper is not her will; and if the jury believe this paper is the product of the instructions of the people who surrounded Delia M. Dunn, and that she herself gave the man who drew it no instructions in reference thereto, and the jury do not believe, from the evidence, she understood it, or formed any independent idea in reference thereto, then it is not her will. * * * If she expressed her will in any way to anybody, and this paper was made out, and She approved of it, it is not necessary that she should have dictated it to the scrivener of the will. That it was her wish, and not that of the person profiting by it, before it became her will, — unless the jury so find, they should, by their verdict, certify that it was not her will; and if the jury believe that it was the result of importunity or direction, which she, in her state, could not exercise, then this paper is not her will, because unduly influenced.”

These requests covered specifically the issues involved. They were enlarged upon by other requests and in the oral charge. The entire charge was a correct embodiment of the law.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    Archibald G. Lindsay v. U. Grant Race, Administrator of the Estate of Patrick M. Gamble, Deceased, et al.

      Partnership — Real estate — Firm debts — Accounting—Parties.
    1. Two owners of pine lands formed a partnership for the purpose of lumbering off the land and disposing of the timber. They afterwards included in the venture a retail lumber business, and to that end erected and operated a planing mill. About 14 years after the formation of the partnership, the partners . purchased on contract in their individual names the timber on a tract of pine land for the agreed price of $125,000, of which $31,250 was paid down. This latter sum was raised upon the individual note of the partners, signed by a third party, who was to have an interest in the land. The contract was assigned to the bank which discounted the note as collateral security. An account was opened on the firm books with the land, naming it, in which it was charged with the purchase price, which was credited to the vendors. The bank was charged with the $31,250, which sum was credited to “ Bills Payable.” A memorandum was made of the giving of the note, describing it, and of the assignment of the contract. The vendors were charged with the $31,250, and the bank was credited with a check for the same, which was stated to be the first payment on the land. When the second payment matured, the vendors were charged with the same, and with the interest on the deferred payments, which latter sum was charged to the land. These sums were paid by checks of the firm drawn upon two banks, which were charged on the same day with the proceeds of certain bills receivable held by the firm, with the proceeds of the firm note for $5,000, and with certain checks deposited by the third party before mentioned. About two years after the purchase, the land was charged with $45.45 as expenses incurred by one of the partners, and he was given credit for the same. The firm, just prior to the giving of this credit, had sold the timber to other parties, reserving a third interest therein, which reservation was evidenced by a separate contract for the sale of said interest running to one of the partners alone, but in which the other partner was interested either as a partner or joint owner. The surviving partner filed a bill against the estate of the deceased partner to secure, among other things, a determination that the proceeds arising from the sale by the firm of said timber were partnership property. And it is held that the intent of the partners to treat the purchase of the timber as a partnership transaction is fairly shown.

    2. The administrator of the estate of the deceased partner applied to the probate court for license to sell the interest of the estate in certain lands, and was required by the court to set out all the land in which the decedent was interested. The administrator thereupon applied to the surviving partner for information, and was informed that said third party who was to have an interest in said timber, the decedent, and the surviving partner each owned, one-third of said reserved interest. And, in answer to the contention that these statements are inconsistent with the claim made in the bill that the timber was to be deemed partnership property, it is held that it is not uncommon for partners, in speaking of their interest in the paz'tnership property, to refer to their ownership as an aliquot part which cozTesponds to their intez-est in the partnership; that, under the circumstances, the effect of the testimony as to the statements of the surviving partner is to show nothing more than that he was inaccuz-ate in his statement; and that it is quite clear that he did not intend to assert that the firm cz-editoz's were not concerned in the timber.
    8. The partners, with two others, purchased another tract of pine timbez1, for which a contract was taken in the names of all. The contract contained a recitation that the grant, sale, and conveyance should be to the parties of the second part (the four vendees), and be held by them as copartners and joint owners therein in certain unequal, undivided shares; and by a separate agz-eement of even date it was provided that the liability upon the contract and the notes given therewith, as between the purchasers, should be as their individual interests were stated in the conti-act, and that, if any of the purchasers should pay anything on the contract or notes for or in behalf of any of the other purchasers, he should have a lien upon the undivided interest of such other puz-chaser for such payments. None of the firm money was used in making the first payment on this contract. And it is held that while, in view of the subsequent entries in the firm books, it is not altogether clear that the parties did not intend this as a firm transaction, yet, as the burden of proof rests upon the complainant to remove the strong presumption which ai-ises from the foz-m of the written instruments, — if, indeed, they are not sufficiently specific to be conclusive, — the timber should not be treated as partnership property.
    4 After the sale by the firm of the tract of timber first referred to, an agreement was made between the two partners and the third party who was to have an interest in said timber, in which, after reciting that they were jointly interested in the purchase of the timber, the amount advanced by said third party, and the sale of the timber by the firm, it was agreed that the partners would pay said third party the money advanced and paid by him on the purchase price of said timber, with interest thereon, and, in addition, one undivided one-third of all the net profits arising out of the purchase and sale of the timber, said sums to be paid when said partziers should receive payments on the contract for the sale of said timber by them. And it is held that said third party is not a necessary party to the said suit.
    6. Where in a suit by a surviving partner against the estate of the deceased partner to secure, among other things, a determination that the proceeds arising from the sale by the firm of certain timber, the contract for which ran to the partners in their individual names, are partnership property, it is agreed that that is the only question to be litigated, and the subject of an accounting is not gone into by the estate, a determination as to whether the estate is indebted to the complainant should not be made until the accounting is completed.
    Appeal from Wayne. (Reilly, J.)
    Argued October 3 and 4, 1894.
    Decided December 18, 1894.
    Bill to subject certain lands to the payment of partnership debts, and for an accounting. Defendant Race appeals.
    Decree reversed in part, and case remanded for an accounting.
    The facts are stated in the opinion.

      DeForest Paine and Hoyt Post, for complainant.

      George W. Radford and Edward A. Barnes, for appellant.

       For an exhaustive note on the question when real estate will be considered partnership property, see Bank v. Miller, 27 L. R. A. 449.

   Montgomery, J.

This suit is between Archibald G-. Lindsay and the administrator and heirs at law of Patrick M. Gamble, deceased. Complainant and Patrick M. Gamble were, during the lifetime of the latter, copartners. The firm was organized about the year 1872, the two partners being then owners of some pine lands in Bay county, and the partnership would appear to have been formed for the purpose of lumbering oil and disposing of the pine on these lands. The business afterwards included a retail lumber business in Detroit, a planing mill being-erected on land purchased by them in Detroit, and used in connection with that business. During the existence of this copartnership, the parties purchased and became interested in various • tracts of land. The purpose of this bill is to have a determination that the proceeds of certain of these lands are copartnership property, although such proceeds have come into the hands of the administrator of Patrick M. Gamble. While other descriptions are involved, there seems to be a substantial disagreement on but two tracts, referred to in the record and briefs as the Ontonagon and the Bayfield lands, being two separate purchases, the former in Ontonagon county, Mich., the latter in Bayfield county, Wis. The circuit judge found both of these” tracts to be copartnership property, and defendant Race appeals.

A brief history of the connection of Lindsay & Gamble with the Bayfield lands is as follows: On the 28th of June, 1886, a contract of sale and purchase was made between David Whitney and others, owners of the. Bay-field lands, on the one part, and Archibald G. Lindsay and Patrick M. Gamble, of the other part, by which the parties of the first part agreed “to sell to the parties of the second .part all the pine timber standing or growing” on certain pieces of land in Bayfield county, etc. The-consideration price was $125,000, payable in installments, the down payment being $31,250. The payment was made-by check on the Detroit. National Bank, and the fund was created by complainant, Patrick M. Gamble, and Henry Gamble executing a note in their individual names, and discounting it at the bank. An account was opened on the firm books of Lindsay & Gable of “ Pine Lands, Bayfield County, Wisconsin,” against which was charged $953.13, June 28; $3, June 30; and $78.20, on August 5. On January 15, 1887, the transaction was entered more at. large on the books. Pine lands, Bayfield county, Wis., were debited $125,000. A credit was extended to D. Whitney et al. (the vendors), $125,000. The Detroit-National Bank was charged with $31,250, which was credited to “Bills Payable,” with the following memorandums

Gave the bank June 28, *86, the joint note of A. G. Lindsay, P. M, Gamble, and Henry Gamble, at 6 months (the interest at 6%, $953.13, being paid by L. & G.), and assigned the pine land contract to the bank as collateral security.**

On June 28, 1887, the books charge the Michigan Savings Bank with proceeds of bills receivable, $10,347.96, and the People’s Savings Bank with a deposit of note of Lindsay & Gamble of $5,000, and also checks remitted by Henry Gamble of $12,682. D. Whitney et al. are charged with $37,812.50, which consisted of a check on the People’s Savings Bank of $26,907.19, and a check on the Michigan Savings Bank for $10,905.31. $6,562.50 of this payment was interest, and is charged on the books of the firm to pine lands, Bayfield county, Wis. On July 31, 1888, Patrick M. Gamble is credited with sundry expenses, including a charge of $45.45 against pine lands, Bayfield county, Wis., June 30 to July 6, to St. Paul, Duluth, etc. In July, 1888, Lindsay & Gamble sold the contract to Frederick Marvin and De Forest Paine, reserving a third interest, which was represented by an agreement running to Lindsay alone, but in which it is conceded that Mr. Gamble was interested, either as a partner or a joint owner. This transaction was entered upon the books. This was previous to the entry of July 31, crediting Patrick M. Gamble, expenses to St. Paul, etc.

Whether lands held in the name of one partner or of both are to be deemed copartnership property is generally a question of intent, to be gathered from the manner in which the members of the • firm have dealt with them. While the fact that funds of the copartnership have been used in paying for the lands, when originally purchased or subsequently, is not conclusive of this intent, yet it is persuasive evidence, and when, as in this case, it is accompanied by the entry of the transaction on the firm, books, as a copartnership transaction, under circumstances which import a daily declaration that it was so regarded, is convincing. See Merritt v. Dickey, 38 Mich. 41; Way v. Stebbins, 47 Id. 299; Williams v. Shelden, 61 Id. 311.

It is strenuously urged that the statements of complainant made after the death of Mr. Gamble are inconsistent with the claim now made. It appears that the administrator of the estate of Mr. Gamble made application to the probate court for leave to sell the interest of Gamble in certain real estate, and was required by the court to set out all the land in which Gamble was interested. The administrator thereupon applied to Mr. Lindsay for information, and was told that Henry Gamble had a third interest jn that portion of the Bayfield lands reserved, Patrick.M. Gamble one-third, and he (Lindsay) one-third. If the complainant fully understood the legal interest which is vested in a copartner, this statement would be strong evidence against the contention which he now makes. But it is not uncommon for partners, in speaking of their interest in copartnership property, to refer to their ownership as an aliquot part which corresponds to their interest in the copartnership; and it appears that in this very case Mr. Lindsay, referring to the Detroit lumber yard lands, stated:

“ The foregoing is Lindsay & Gamble's lumber yard, in city of Detroit. Interest of Patrick M. Gamble is one-half."

Yet it is conceded that, under the facts shown, the lumber yard is copartnership property, and Patrick M. Gamble's interest was not one-half until the copartnership transactions were closed and the firm debts paid. The effect of this testimony is, therefore, to show nothing more than that complainant was inaccurate in his statement. It is quite clear that he did not intend to assert that the firm creditors were not concerned in the lands.

Taking the evidence as a whole in this case, we cannot escape the conclusion that the intention to treat this Bayfield purchase as a partnership transaction is fairly shown.

The Ontonagon lands stand upon a somewhat different footing. Complainant’s counsel in their brief state:

“We recognize that the court might very well come to the conclusion that it [the Ontonagon tract] rested on quite different footing from the main subject of controversy, — the Bayfield pine, — and might very well hold the Bayfield pine to be partnership assets, and the Ontonagon pine to have been so treated by the written contracts between the parties as to take it out of the partnership.”

While contending that, even as to these lands, the -decree of the court below was right in decreeing them to be copartnership property, yet complainant’s counsel con-cede that the form of the papers made in this purchase and the mode of final disposition make a substantially different case as respects these lands than that relating to the Bayfield tract. In the purchase of the Ontonagon tract, a contract was taken running to Thomas Nester, Archibald G. Lindsay, Patrick M. Gamble, and De Forest Paine. The contract contained the recitation that—

“ The grant, sale, and conveyance shall be to the said parties of the second part, and held by them as copartners and joint owners, therein, in the proportions following, to wit: One undivided third thereof to said Thomas Nester; ■one undivided sixth thereof to said Archibald G. Lindsay; one undivided sixth thereof to said Patrick M. Gamble; and one undivided third thereof to said De Forest Paine.”

And on the same day an agreement was entered into between the parties, which provided that “the liability upon said contract and all said notes, as between the parties hereto, is as their individual interests are stated in said contract, to wit: Thomas Nester, one-third; Archibald G. Lindsay, one-sixth;. Patrick M Gamble, one-sixth; DeForest Paine, one-third,” — and further provided that, if any of the parties should pay anything on the contract or notes for or in behalf of any of the other parties, he should have a lien upon the undivided interest of the other for such payments; and it appears that, when the first payment was made, none of the firm money was used for the purchase. While, in view of the subsequent entries in the books, it is not altogether clear that the parties did not intend this as a firm transaction, yet, as the burden of proof rests upon the complainant to remove the strong presumption which arises from the form of the written instruments, — if, indeed, they are not sufficiently specific to be conclusive, — we hold that these lands should not be treated as copartnership property.

It is urged that, as Henry Gamble is interested in the proceeds of the Bayfield lands, he should be made a party. After the sale to Marvin and Paine, an agreement was made which recited that Patrick M. Gamble, Archibald G. Lindsay, and Henry Gamble were jointly interested in the purchase of the lands, and that Henry Gamble had advanced $12,952, and Lindsay and Gamble had sold the land contract for $175,000. It was agreed that—

Said Lindsay and Patrick M. Gamble will pay to said Henry Gamble said moneys advanced and paid by him on the purchase price of said lands, together with interest thereon, and that, in addition thereto, they will pay to said Gamble one undivided one-third of all the net profits-arising out of the purchase and sale of said lands aforesaid, said payments to be made at the times when said Lindsay and Patrick M. Gamble shall receive payments on the said contract of sale made by them in duplicate.”

The agreement contemplated that the proceeds of the land were to come into the possession of Lindsay & Gamble, whether as partners or as individuals, and both were made liable in this undertaking to pay Henry Gamble the amount due him. His remedy is not affected by this proceeding. If, as between complainant and the administrator of the estate of Patrick M. Gamble, the complainant is entitled to the possession of the fund, it is no answer to say that, when in the proper custody, it will be subject to the claims of Henry Gamble. It is true the claim is ■one which might be proven against the estate of Patrick M. Gamble, but so of all the partnership indebtedness. The primary fund for its payment is, however, the co-partnership fund.

It is contended that the decree went too far in determining that the firm was indebted to the complainant. We think that the decree in this respect is premature. It .appears to have been agreed between the parties that the only question to be litigated in the present bill was whether these’ several tracts of land were copartnership property. The defendants did not go into the subject of accounting, and the determination as to whether the estate is indebted to complainant should not be had until the accounting is completed.

The decree will be modified, and the finding that the 'Ontonagon lands were copartnership lands reversed. In other respects the decree relating to these lands will be affirmed, and the case remanded for an accounting. Appellant will recover costs of this Court,

The other Justices concurred.


text:
    Fanny B. Lane et al. v. John F. Ruhl.
    [See 94 Mich. 474.]

      Summary proceedings — Treble damages — Landlord and tenant— Interest.

    1. Under How. Stat. § 8306, which provides that the complainant obtaining restitution of any premises under the provisions of that chapter (386) shall be entitled to an action of trespass or trespass on the case against the defendant, and may recover treble damages from the time of the forcible entry or forcible' detainer, or of the notice to quit or demand of possession, as the case may be, a plaintiff who has recovered judgment of ouster from leased premises is entitled to treble damages, notwithstanding the finding of the jury that the defendant held ' possession because he in good faith believed that he had a lawful right so to do.
    2. In determining the damages to which the landlord is entitled, interest should be allowed upon installments of rent from the time they became due and payable under the terms of the agreement, which is taken as the basis of recovery.
    Error to Wayne. (Carpenter, J.)
    Argued October 10, 1894.
    Decided December 18, 1894.
    Case. Plaintiffs bring error.
    Beversed, and judgment entered in this Court for plaintiffs.
    The facts are stated in the opinion and in 94 Mich. 474.

      Wells, Angelí, Boynton & McMillan, for appellants.

      S. S. Babcock (George X. M.- Collier, of counsel), for defendant.
   McGrath, C. J.

Plaintiffs, having brought proceedings against defendant to recover possession of certain premises, resulting in a judgment of ouster, affirmed by this Court (94 Mich. 474), now bring trespass on the case, under How. Stat. § 8306, for damages. The jury brought in a general verdict of guilty, assessing plaintiffs’ damages at $1,669.62, and in answer to a question submitted found that defendant held possession because he in good faith believed that he had a lawful right so to do. Plaintiffs thereupon moved the court for a judgment for treble the* amount of the damages awarded. The court denied the-motion. This raises the principal question in the case.

Plaintiffs insist that they are entitled, under the statute,, as a matter of right, to treble damages, notwithstanding; the special finding as to defendant’s good faith. We have; a number of statutes conferring the right to double or treble damages. By the terms of certain of them, the act done must be willful; others, after giving the right in general terms, provide that if it appear that the act was casual cr involuntary, single damages only are recoverable; while others provide in general terms' for the recovery, and do not in express terms make such recovery dependent upon the willfulness of the act, or except instances of casual or involuntary conduct, The statute in question here belongs to the latter class, and is as follows:

The complainant obtaining restitution of any premises under the provisions of this chapter shall be entitled to an action of trespass or trespass on the case against the defendant, and may recover treble damages from the time of the forcible entry or forcible detainer, or of the notice to quit or demand of possession, as the case may be, and all other damages to which he may be entitled.”

A number of cases involving the construction of other statutory provisions relative to increased damages have been before this Court. Wallace v. Finch, 24 Mich. 255; Russell v. Myers, 32 Id. 522; Michigan Land & Iron Co. v. Deer Lake Co., 60 Id. 143; Elliott v. Herz, 29 Id. 202; Shepard v. Gates, 50 Id. 495; Kilgannon v. Jenkinson, 57 Id. 325. The first three cases arose under How. Stat. § 7957, relating to cutting or carrying away or injury to its timber. Section 7958 provides that if it shall appear upon the trial that the trespass was casual and involuntary, or that the trespasser had probable cause to believe that the land was his own, single damages only shall be awarded. Wallace v. Finch was a case where defendant was in correspondence with the owner of the land with reference to its purchase, and, supposing that his letter accepting a proposition of sale had been received, entered upon the land and cut the timber. The Court held that, taking the sections referred to together, the intention of the Legislature was clear that the penal application should only be made in cases marked by wantonness,. willfulness, or evil design; in other words, that the act done, if not within the letter of the exceptions, was within the spirit thereof. Similar statutory provisions to that last named have received like construction in other states. Batchelder v. Kelly, 10 N. H. 436; Cohn v. Neeves, 40 Wis. 393; Barnes v. Jones, 51 Cal. 303; Russell v. Irby, 13 Ala. 131; Lindell v. Railroad Co., 25 Mo. 550; Whitecraft v. Vanderver, 12 Ill. 235. In all of these cases the construction .given will be found to be predicated upon a consideration •of associated provisions of the statute. In Batchelder v. Kelly, which is the earliest case, and which is cited in nearly all of the other eases, the court held that the general tenor of the statute precluded the idea that it was designed to apply the provision in question to unintentional trespasses. In Gohn v. Neeves other provisions of the same chapter of the statute are referred to, which the court held gave character to the conversion mentioned in the section under consideration. In Barnes v. Jones the title to the act was “Actions for nuisance, waste, and willful trespass, in certain cases, on real property.” In Lindell v. Railroad, Co. the statute was evidently like our ■own, for the court say that under the circumstances it ■could not be said that the defendant had any reason to suppose that literally the land or timber belonged to it, but the spirit of the statute is to punish willful -trespasses. Whitecraft v. Vanderver is based upon the Batchelder case.

Our own case of Elliott v. Herz arose under How. Stat. § 2119, which provides that the owner of any dog which shall have killed any sheep shall be liable in double damages, and it was held that the statute did not apply to a case of damage done by a rabid dog. Shepard v. Gates was brought under How. Stat. § 1406, which provides that whoever shall injure any bridge or any public road shall be liable in treble damages to the township. The Court held that, if defendant made the cut in the road under the proper statutory authority, the cut was no trespass, and, if the bridge over the cut was remodeled to the satisfaction of the highway commissioner, such an act could not be regarded as a trespass. Both of these cases come within the well-established rule applied to such statutes, that whatever is within the mischief intended to be remedied is considered as within the statute, though not within the letter thereof, and whatever is not within the mischief is not considered within the statute though within the letter.

Kilgannon v. Jenkinson was brought under section 7959, which provides that if any person shall be ejected or put out of any lands in a forcible and unlawful manner, or, being put out, be afterwards kept out by force, he shall be entitled to recover treble damages. A dispute arose as to the boundary line. Plaintiff erected a fence, and defendant tore it down. The case was reversed on other grounds, and no point was made or discussed in the briefs as to plaintiff’s right to treble damages. What the Court evidently meant by the suggestion was that the act complained of was a mere naked trespass, and not such a forcible ouster as to bring the case within the statute, under the rule adopted in Shaw v. Hoffman, 25 Mich. 162.

It must be concéded that in all of these cases language is used which, considered in the abstract, tends to support the defendant’s contention; but the question here turns upon the meaning of this particular statute. There is no question as to the power of the Legislature in the premises. There is no invasion of any provision of the Constitution. The interpretation of statutes of this class is governed by the same rules applied to statutes generally. What may or may not have been assumed or presumed in other cases, after proper consideration of associated provisions which throw light upon the particular provisions there questioned, ought to have little weight in a case-like the present, where the language is plain, and is-unaffected by the other provisions of the same act. The-chapter in which the section in question occurs relates to-proceedings to recover the possession of land. It first treats of forcible entries and detainers, and next of the-recovery of possession where the relation of landlord and tenant exists or has existed, and then occurs the provision in question. The language of the section is clear, explicit, and unequivocal. It is neither doubtful nor ambiguous. It is susceptible of but one meaning. The act furnishes no suggestion which throws any doubt upon the meaning of the language employed, or warrants a. departure from the intention of the Legislature as expressed, or authorizes a modification of the language used. Courts-cannot speculate beyond the reasonable import of the words employed. As is said by Westbrook, J., in People v. Supervisors of Greene, 13 Abb. N. C. 424, any attempted construction of the act which departs from its language, and purports to be based on the intention of the legislature, in the absence of any key to the meaning of words afforded by other parts of the act, is mere speculation, and must vary with the convictions of the reasoner as to what the law should have been. See, also, Gardner v. Collins, 2 Pet. 58; U. S. v. Wiltberger, 5 Wheat. 76; U. S. v. Hartwell, 6 Wall. 395.

“We are not at liberty,” say the court in Alexander v. Worthington, 5 Md. 485, “to imagine an intent, and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting and remodeling with the view of making the letter express an intent which the statute in its native form does not evidence.”

It is only in cases where the language is capable of two meanings, or where, by giving it its literal interpretation, the statute will be inconsistent or ambiguous, that courts resort to the secondary rules of construction to aid in determining the real intention of the legislature. 23 Am. & Eng. Enc. Law, 305; Bidwell v. Whitaker, 1 Mich. 469. Courts cannot except special cases which fall within the mischief of such statutes, and are within the scope of the general terms used. The cases of forcible entry or detainer or of holding over in which no claim of right is made are exceptional, and to hold that the language of this section applies only to exceptional cases arising under the act would be to import something into the statute which is at variance with its evident meaning.

In the case of Hogsett v. Ellis, 17 Mich. 351, 370, this Court recognized the liability of a tenant holding over after notice to quit, or demand of possession, to treble damages under the statute in question. In Shaw v. Hoffman, 25 Mich. 170, the Court intimate that upon a judgment of guilty under section 7959 plaintiff would have been entitled to treble damages as a matter of right. In Howser v. Melcher, 40 Mich. 185, and Hitchcock v. Pratt, 51 Id. 263, the question before the Court was the proper measure of damages under the general term, “all other damages,” used in the section under consideration.

Robinson v. Kinne, 1 Thomp. & C. 60, was an action under a statute allowing treble damages for waste. • The court recognize the rule that prevails in actions for trespass to lands under statutes similar to ours, but say respecting plaintiff's right to increased damages under the statute in question:

CiWe do not see that it was at all material to the case that the defendant claimed to own by another title that portion of the lands on which certain of the trees were cut, and which cutting was found to be waste. The statute in regard to waste does not excuse the defendant from treble damages because he has good reason to believe the land to be his own. The question was whether the locus in quo was in point of fact a part of the dower lands, or whether the defendant was estopped from denying that they were such.”

The case was afterwards taken to the court of appeals, and the rule laid down in the supreme court was approved. 70 N. Y. 147.

The history of this chapter and of this provision fortifies us in the conclusion reached. Sections 1-5, inclusive, of the territorial act of 1828 entitled An act to prevent forcible entries and detainers,” authorized an arrest, a fine, a judgment of restitution, and the recovery of treble damages in an action of trespass. Section 6 of the same act provides that when any person shall willfully and with force hold over, or when any person wrongfully and without force by disseisin shall obtain and continue in possession of any lands, and after demand for possession shall refuse or neglect to quit possession, the owner may have restitution. Section 8 provides that the complainant shall be entitled to an action of trespass and to treble damages. 2 Terr. Laws, 660. In 1830 an amendment provided that when any person shall hold over after the time for which demised, or contrary to the conditions of the lease, or after any rent shall have become due and shall remain unpaid for 20 days, if demand for possession shall have been made, and the tenant shall neglect or refuse for the space of 20 days to quit the possession or pay the rent, upon complaint, etc. 3 Terr. Laws, 830. In the Revision of 1838 it was sought by section 6 to embrace the provisions of both section 6 of the law of 1828 and the amendment of 1830, and the words “ willfully and with force” were retained. Rev. Stat. 1838, pp. 490, 492. In the Revision of 1846, however, those words were omitted from the section relating to a tenant holding over. Section 5 of the act of 1828, giving to the “complainant of any forcible entry and detainer” the right to bring trespass and to treble damages, was omitted, and section 8 of the same act, which gave to the complainant under section 6 the right to bring trespass, and to treble damages “from the time of notice given to quit,” was changed so as to be applicable to cases of forcible entries or detainers as well, and incorporated as one of the general provisions of the chapter. Rev. Stat. 1846, pp. 542, 545.

The only other complaint relates to a question of interest. The jury assessed the plaintiffs5 damages at $1,669.62, and in answer to a special question as to what amount they found to be the damages of the plaintiffs for being deprived of, the revenues which might have accrued to them if said defendant had not retained possession, they fixed the sum at $156.54. The court entered judgment for single damages only, and struck out the item of interest. In this, we think, the court erred. eIt appears that the defendant, prior to the notice to quit, had been paying a rental of $780 per year in monthly installments, and that rate was agreed upon as the basis of recovery. There is no good reason why, in determining the damages to which plaintiffs are entitled, the element of interest upon installments of rent from the time they became due and payable under the terms of the agreement, which is taken as the basis of recovery here, should not be considered by the jury. Clearly, any computation which would put

nothing in the place of interest would not give full compensation, and the jury had the undoubted right, under the circumstances, to adopt the legal rate of interest as the measure of damages.

The judgment will be reversed, and a judgment entered here for treble damages, with interest from the date of the verdict below.

Long, Montgomery, and Hooker, JJ., concurred. Grant, J., did not sit.