author: Brooke, J.

text:
    NEWBERRY v. SMITH.
    1. Public Officers — Salary—Removal.
    A member of a municipal police force, appointed under charter provisions which limit the right of removal and suspension to cause assigned, after hearing and notice, is entitled to his salary during the period of a suspension without hearing or notice, and pending his trial and acquittal upon a criminal charge.
    2. Same.
    The emoluments of such police officer belong to him as an incident of his office, not by force of contract.
    Certiorari to Wayne; Donovan, J.
    Submitted March 3. 1909.
    (Calendar No. 23,253.)
    Decided June 7, 1909.
    Mandamus by Frank A. Newberry to compel Fred W. Smith, commissioner of police of the city of Detroit, to audit and allow a claim for services. From an order denying the writ, relator brings certiorari.
    Reversed, and writ granted.

      Frazer, Griswold & Slyfield, for relator.

      George P. Codd, for respondent.
   Brooke, J.

The relator in this case seeks to secure a mandamus against the respondent, commanding him to allow, audit, and certify to the controller of the city of Detroit, and to issue, or to cause to be issued, to the relator, a lawful warrant or voucher for the sum of $875. The relator is now, and has been for many years, connected with the metropolitan police of the city of Detroit. The respondent is the police commissioner of said city. On the 30th day of December, 1905, relator was promoted to the grade of captain. He entered upon the duties of that office and continued to perform the same up to the 13th day of May, 1908, on which date relator, with one Frank B. Hibbler, was charged with the offense of conspiring together to compound a felony — that is, to refrain from prosecuting a certain woman, Annie Smith, for the offense of keeping and maintaining a house of ill fame resorted to for the purposes of prostitution and lewdness — and a police court warrant issued against relator and said Hibbler. Immediately upon the issuing of said warrant, on or about the 13th of May, 1908, relator was officially suspended from active duty under and by virtue of an order made by the superintendent of police, John Downey, by and with the consent and approval of Fred W. Smith, commissioner of police, respondent, pending a hearing on the complaint made and a warrant issued in the police court. On May 22, 1908, Christopher E. Stein, one of the police justices of the city of Detroit, held relator and said Hibbler for trial to the recorder’s court of the city of Detroit. On November 26, 1908, relator, after a trial in said recorder’s court, was acquitted of said charge by a jury. On December 8, 1908, relator made a dem'and upon the police commissioner, respondent herein, as follows:

“To Honorable Fred W. Smith,
“ Commissioner of Police of the City of Detroit,
“Detroit, Michigan.
Sir: Formal demand is hereby respectfully made that you in your official capacity as commissioner of police of the city of Detroit, do allow, audit and certify to the controller and direct the payment to the undersigned of compensation and salary due to him as a captain of the metropolitan police of the city of Detroit for the period of time between the first day of May, A. D. 1908, and the first day of December, A. D. 1908, the same amounting to the sum of eight hundred seventy-five dollars ($875.00).
“Very respectfully,
“Frank A. Newberry.
“Dated, December 8th, 1908.”

The respondent refused to allow, audit, and certify to the controller and direct the payment of said sum of $875.

The charter provisions touching the duties and powers of the police commissioner relative to the matter under consideration are as follows:

“ The commissioner of police and secretary of such de-1 partment shall certify to the controller all pay rolls of the department allowed by said commissioner, and the city controller shall draw his warrant on the city treasurer for the amount thereof, and shall transmit said rolls to said city treasurer, together with such warrant, and the city treasurer shall pay to the several persons named in said roll the amount due to them and named in said roll.” Detroit Charter (1904), § 680.
“Said commissioner shall also have power, for cause assigned and on a public hearing and on due notice, according to rules which shall be promulgated, to remove and suspend from office, or for a definite time to deprive of pay, any member of such police force.” Id. § 662.
“If on such trial such charges or complaints shall be sustained, such officer or policeman shall pay the costs of such proceedings, and the same may be deducted and withheld from his pay, and in case of his suspension his pay shall also cease from the date of the charge and during the suspension.” Id. § 667.

It appears from the record that on the 2d day of December, 1908, by a general order, the respondent reduced the relator in rank from captain to patrolman, and that said reduction in rank and salary was made without written charges being preferred against the relator or any trial had thereon. The relator’s petition in the circuit court prayed that a mandamus issue likewise commanding the respondent to reinstate him to his grade of captain, together with the salary, rights, privileges, and obligations incident to such rank. This last contention of the relator was abandoned in the circuit court, and is not urged here.

An examination of sections 662 and 680 of the city charter leads to the conclusion that there is undoubted authority in the police commissioner to prefer charges against any official of the department, and after a public hearing on due notice, to determine the guilt or innocence of such officer, and, if found guilty by him, the commissioner, of the charges assigned, he, the commissioner, may lawfully withhold the pay of the officer during his suspension. We do not think that this right can be exercised by the commissioner except upon cause assigned, after hearing on due notice, and a determination of the guilt of the officer so charged. An examination of the petition and answer leads to the conclusion that the criminal charges made against petitioner were adopted by the commissioner as the basis of the suspension, and that his acquittal upon those charges removed the reasons for such suspension. Upon his acquittal, the respondent treated him as entitled to restoration to his office on account of such acquittal, but reduced him to the rank of patrolman for another offense. Under this state of facts, we are of opinion that relator was entitled to his salary during the period of suspension. The emoluments of a police officer belong to the officer as an incident of his office —not by force of any contract, but because the law attaches it to the office. See Wilkinson v. Saginaw Common Council, 111 Mich. 586 (70 N. W. 142); Carney v. Whelan, 147 Mich. 19 (110 N. W. 128). See, also, People, ex rel. Nugent, v. Police Commissioners, 114 N. Y. 245 (21 N. E. 421); Emmitt v. Mayor, etc., of New York, 128 N. Y. 117 (28 N. E. 19). The learned circuit judge, as stated in his [opinion, relied upon the case of Wilkinson v. Saginaw Common Council, supra. That case is clearly distinguishable from the one at bar by reason of the difference in the charter provisions of the city of Saginaw and those of the city of Detroit. We find no provisions in the city charter requiring the commissioner of police to furnish an affidavit to the controller. The charter provides as follows:

The commissioner of police and secretary of such department shall certify to the controller all pay rolls of the department allowed by said commissioner, and the city controller shall draw his warrant on the city treasurer for the amount thereof, and shall transmit said rolls to said city treasurer, together with such warrant, and the city treasurer shall pay to the several persons named in said roll the amount due to them and named in said roll.” Detroit Charter (1904), § 680.

The order and judgment of the circuit court denying relator’s application for mandamus is reversed, and the writ will issue as prayed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    KROHN v. WAYNE CIRCUIT JUDGE.
    Mandamus — Amendments—Discretionary Orders.
    A denial of a motion to amend the plea of the general issue, after appeal to the circuit from the justice’s court, is a reasonable exercise of the court’s discretion, in view of the refusal of relator’s attorney to produce in open court the relator whose affidavit constituted a part of the showing upon such motion.
    Petition by Henry Krohn for a writ of mandamus to compel George S. Hosmer, circuit judge of Wayne county, to set aside an order denying leave to amend a plea.
    Submitted March 80, 1909.
    (Calendar No. 23,447½.)
    Order to show cause denied June 7, 1909.

      Sloman & Sloman, for relator.
   McAlvay, J.

This court is asked for a writ of mandamus to require respondent to set aside an order denying leave to amend a plea of the general issue by adding a certain notice. The case arose in justice’s court, and was tried on a plea of the general issue. The plaintiff sued relator and two others jointly to recover for professional services claimed to have been rendered to them. It was tried before a jury, and he recovered against the other defendants, and a judgment of no cause of action was rendered in favor of this defendant. Plaintiff appealed, and the motion in question was made. It was heard twice by respondent. On the first hearing it was denied, because the defense offered was not material or connected with the issue. Respondent suggested and granted a renewal of the motion. On the second hearing this motion was supported by affidavits of the justice and relator’s attorney. Respondent again stated in substance that the defense offered was not material or competent, and, as appears from the .petition, gave his reasons at length.

Plaintiff was a member of the bar, and the notice hinted at unprofessional conduct on his part in certain matters. The court stated that the affidavits were unsatisfactory, containing conclusions of fact from which he was unable to determine whether the amendment was necessary or proper. He asked for the production of relator, and to hear the evidence relied upon. Relator’s attorney refused to produce his client, and asked for time to procure his affidavit. Further time was not granted, and the motion was denied. In denying this motion respondent was exercising his judicial discretion. Relator was at the time before the court as a matter of grace, and ¿nade a showing held by the court not to be sufficient. Under the circumstances of the case, the court, desiring to have facts and not conclusions submitted, in order to determine whether the amendment was necessary and proper, asked for the production of relator. The attorney refused to produce him, and asked for further delay to get his affidavit. Relator had already been given ample opportunity to make all the showing he desired, and had been treated with fairness. The action of the court in refusing further time and in denying the motion to amend was within the discretion of the court, which this court thinks was reasonably exercised. See Boatz v. Berg, 51 Mich. 8 (16 N. W. 184).

The order to show cause will be denied.

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


author: Blair, C. J.

text:
    HEENAN v. HARRIS.
    Brokers — Commissions—Good Faith.
    Where, in an action for broker’s commissions, the defendant’s testimony tended to show that she had fixed the price at one hundred dollars less than the broker claimed, that he had not offered the property at the fixed price to the purchaser but at a larger sum, and that the negotiations had been broken off and a sale at a less price made by the owner, who supposed that the negotiations between the broker and vendee were terminated, the jury is warranted in inferring that the broker’s efforts did not procure the purchaser, and were fraudulently intended to secure more than the agreed compensation.

    Error to Lapeer; Smith, J.
    Submitted April 8, 1909
    (Docket No. 17.)
    Decided June 7,1909.
    Assumpsit by Martin J. Heenan against Myrta E. Harris for commissions on the sale of real estate. A judgment for defendant is reviewed by the plaintiff on writ of error.
    Affirmed.

      Geer, Williams & Halpin and H. W. Smith, for appellant.

      William T. Hosner, for appellee.

       As to when broker may be considered procuring cause of sale or exchange, see note to Hoadley v. Savings Bank (Conn.), 44 L. R. A. 321.

   Blair, C. J.

This is an action to recover a commission of $36 alleged to be due from defendant in consequence of her sale of her farm in Lapeer county to a purchaser with whom plaintiff had begun and was carrying on negotiations. Plaintiff is a banker and real estate dealer. He testified: That defendant listed the farm with him for sale on a commission of 2 per cent. That she wanted $2,000, and he did not think she could sell it for that. That the price talked of was $1,900, and no less amount was talked of.

“Q. There was no other price mentioned in that talk except $1,900 ?
“A. No, sir; I don’t think there was. The next time I had a talk with her was at Dryden, when she came there on this other business with Mr. Mack.
“Q. What was that conversation ?
“A. Nothing very different than only she wanted to know if I had succeeded in selling the farm yet, and I had not at that time.”

That, at the time defendant came to see him first, nothing was said as to her having left the place with other dealers for sale. That, among others, he talked with George Harmon about selling the place to him, and Harmon came to see him at his office in Dryden.

“Mr. Harmon said the farm was all right, but it was a little run down, and he thought the price was a little high. I don’t think he said how much too high. He didn’t make me a bona fide offer on the place at that time.”

Plaintiff’s cashier testified: That defendant placed a price of either $1,900 or $2,000 upon the farm and allowed ■ plaintiff a commission of 2 per cent, for selling the farm.

“ Harmon said he had been and looked at the farm, and it was badly run down, and he did not think he wanted to buy it at that price. Mr. Heenan told him that the farm was worth it, and he did not know as he could sell it any less. I think that is about all that was said.”

Defendant testified: That the first time she talked with plaintiff was at his office in Dryden. That she wanted $2,000 for the farm, but plaintiff laughed at the idea.

“ He said I had given too much for it in the first place, and I told him that I would let it go for $1,900, and he said he would try to find a buyer at that price.”

The next time she saw him he came to her house and said he had a buyer at $1,900, and she went to his office to have the papers made out, and he told her “that the deal was off, that the man had backed out.” That she then told him that if he would sell the place for $1,900 she would give him 2 per cent, commission, “and will also sell it myself if I have an opportunity.” That she made the same proposition to Mr. Mack in Heenan’s presence.

Mr. Mack testified: That he' was present at the conversation in plaintiff’s office.

“ She said it ought to bring $2,000, but she would take $1,900, and, if she got a chance to sell it herself, she would sell it and pay no commission, and also she offered me the same chance. * * * If he sold it for $1,900, he could have 2 per cent, for selling it, and, if she sold it herself, she would pay nothing.”

George Harmon testified: That he looked at the farm at plaintiff’s request and then saw him at his office.

“He says: ‘ I will tell you what I will do. I will call the place $1,960, with the exception of about $5 it will cost to draw the papers. That will make the place $1,965, that is allowing you my commission.’ I did not have any talk with him after that. That was all the talk I had with him. About two weeks later I bought the farm and paid $1,800 for it. * * * When I first went to see Mrs. Harris, she asked $1,900 for the farm. I was there I presume about an hour before I bought. Within the hour she came down to $1,800, and I bought the farm. I told her that I had been talking with Mr. Heenan about the farm.”

That he could not buy the farm of plaintiff because, “in the first place, he was asking too much, and the second reason was I wouldn’t have bought the farm from him.” That he told this to defendant before he bought of her. Mr. Fisher testified: That he was present at the conversation between Heenan and Harmon.

“Mr. Heenan said they wanted $2,000, and George told him he thought it was too much, and Hfeenan said, to make the sale, ‘ I will give you my commission and let you have the place for $1,960, and $5 will cover the expense of making the papers, will make it cost you $1,965.’”

Plaintiff testified on rebuttal that, at the time he offered the farm to Harmon for $1,960, the least he was authorized to sell it for was $2,000, and the day she came with Mack was the first time she came down to $1,900, and that he had no talk with Harmon after that day.

Plaintiff’s counsel contend that the court should have directed a verdict for plaintiff as requested, and this contention raises the only question which, in our opinion, requires special consideration. The terms of the contract are in dispute. Plaintiff’s testimony is that at the time he talked with Harmon the least he was authorized to sell for was $2,000. Defendant’s testimony is that at that time he was authorized to sell for $1,900 and had ridiculed her out of asking $2,000. Taking the most favorable view of the testimony for defendant, the jury would be authorized to find: That-plaintiff had demanded of Harmon $2,000, less his commission, and either did this to assist defendant by getting an increased price and waiving his right to a commission, or with the fraudulent intent to increase his own remuneration; that on Harmon’s stating that the price was too high, and that he would not pay it, the plaintiff did not intimate to him that he might sell for a less sum, but allowed him to depart with the understanding that the price stated was the lowest which would be accepted; that there was no arrangement whatever as to any future negotiations, but all negotiations were concluded at that meeting; that Harmon notified defendant of his talk with plaintiff and that he would not deal with him; that defendant had a right to believe, and did believe, that the negotiations between Harmon and plaintiff were at an end, and sold to Harmon in good faith. Having permitted Harmon to go away with the understanding that the price asked was the lowest price, knowing that the price was too high, and that Harmon would not pay it, and without any arrangement whatever for further negotiations, it cannot be said, as a matter of law, that any negotiations were pending, or that plaintiff’s efforts had procured a purchaser in accordance with his contract. On the contrary, we think the jury would have been warranted in finding that the plaintiff’s efforts were contrary to his duty under his contract and were fraudulently designed to obtain more than the agreed compensation. If, as the undisputed evidence discloses, he was offering to throw off his commission on $2,000 merely to aid the defendant, it is difficult to explain why he should be making such strenuous efforts to collect the commission on $1,800.

We are of the opinion that the case was properly submitted to the jury, and that no errors were committed so prejudicial as to require a reversal of the judgment or necessitate further consideration. See Young v. Hubbard, 154 Mich. 218 (117 N. W. 632).

The judgment is affirmed.

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


author: Ostrander, J.

text:
    FIRST NATIONAL BANK OF DURAND v. SHAW.
    1. Bills and Notes — Guaranty—Negotiability.
    A guaranty of payment indorsed on a promissory note before delivery is negotiable in the same manner as an indorsement. Green v. Burrows, 47 Mich. 70, followed.
    2. Same — Forgery—Transfer in Due Course.
    The forgery of a part of the signatures on a promissory note does not invalidate the instrument, as to the genuine signatures, in the hands of a holder in due course.
    Error to Presque Isle; Emerick, J.
    Submitted April 8, 1909.
    (Docket No. 19.)
    Decided June 7, 1909.
    Assumpsit by the First National Bank of Durand against Thomas E. Shaw and others upon a promissory note. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Charles JR. Henry (De Vere Hall, of counsel), for appellants.

      Odell Chapman, for appellee.
   Ostrander, J.

This case has once before been in this court, and is reported in 149 Mich. 362, 366 (112 N. W. 904, 905, 13 L. R. A. [N. S.] 426). In the opinion which was filed, after a citation of authorities, it is said:

“ These cases are not conclusive of the question involved here. An examination of the cases will not show one where part of the signatures were genuine and part forgeries, which had been placed thereon before the note was executed and delivered. Nor will they show a case where the alteration was made before the note was delivered. We think this is an important distinction.”

The opinion concludes as follows:

“ In the case at bar a joint and several note, purporting to have been signed by 20 persons, is before maturity put afloat. There is nothing in its appearance to cast doubt upon any of the signatures. A bank becomes a bona fide holder of the note. It turns out that some of the signatures are forged. If we apply the principles of law stated in the cases to which we have called attention, is it not clear that the signers whose signatures are genuine are liable ? We think the answer must be in the affirmative. ”

A judgment for the defendants was reversed, and a new trial ordered.

The record did not disclose who was responsible for the forged signatures to the note. The case has been again tried. As to the defendants who admittedly signed the note, a verdict was directed in favor of the plaintiff; the court saying to the jury that it appeared beyond dispute that the plaintiff bought the note in due course, before maturity, for value. In answer to special questions, the jury found that the names of five signers of the note were forged, and that none of the makers participated in the forgery or had any knowledge of it. To the question, “Did Comstock & Crawford, the payees named in said note, by themselves, or their agents, procure all the forgeries (if they exist) to said note?” the jury answered, “Yes.” It is therefore contended that the forged signatures were not placed upon the note before it was executed and delivered, and that this fact serves to distinguish the case now presented and the case which was presented upon the other record. It also appears, as it appeared upon the former record, that the payees of the note (the note was made in 1901, payable to Comstock & Crawford, or order, with interest at 6 per cent, per annum) transferred the note to the plaintiff before maturity, for value, indorsing upon the back of it their guaranty, as follows:

“For value received, we hereby guarantee the payment of the within note at maturity or at any time thereafter, with interest at 6 per cent, per annum until paid, and agree to pay all costs and expenses paid or incurred in collecting the same, waiving protest, notice and demand of payment.
“Comstock & Crawford.”

No other indorsment appears upon the note. It is contended that this was not a transfer of the note in due course, and that the guaranty written upon the note is not equivalent to an indorsement within the meaning of the law merchant. This last contention is ruled, against the appellants, by Green v. Burrows, 47 Mich. 70 (10 N. W. 111). In Phelps v. Church, 65 Mich. 231 (32 N. W. 30), in which the rule of Green v. Burrows is approved without referring to the case itself, an examination of the briefs discloses that appellants relied, as they do here, upon Central Trust Co. v. National Bank, 101 U. S. 68, and the appellee relied upon Green v. Burrows. See, also, 1 Randolph on Commercial Paper (2d Ed.), § 14. We think the profession, generally, have regarded the rule of Green v. Burrows as the law of this State upon this subject. We pass, therefore, to the consideration of the question whether the particular note is valid and enforceable in the hands of the plaintiff.

The note is one of a series of notes, the face value of which is $2,000, which the payees sold to the plaintiff for $1,880. The notes were given for the price of a stallion sold to the makers by Comstock & Crawford, who employed in making the sale one James Morgan. He employed others — whether with the knowledge and consent of the payees is not very clear. The testimony of Gibbs tends to show: That he saw each of the men whose names appear upon the note sign the same; that he was engaged to help sell the stallion; that he was to receive $100 if he sold the horse, and his expenses; that before the note was executed he and Mr. Morgan had procured the signatures of the makers on a contract book in which a contract was printed, to which Comstock & Crawford were parties; that he and Mr. Morgan were in every instance together when the parties signed the note;, that they were a little over a week in getting the names on the book and on the notes; that Morgan, and not he, carried the notes. The testimony of Morgan tends to prove: That he saw each of the parties sign the note; that the payees of the note were paying him at the time about |150 a month; that he was not acquainted with any of the men whose names appear upon the notes as makers before he visited them in this behalf; that before the notes were executed he and Gibbs had procured the signatures of the men whose names appeared upon the note to a contract which was printed in a book, in which they agreed to sign notes or pay cash for the horse; that the signatures on the notes were those on the book, but whether there were more signatures on the book than on the notes he could not remember. The book was not produced at the trial. It is to be inferred that the plan, originating with Com-stock & Crawford, was to induce a number of persons to agree to purchase a breeding stallion, to assist such persons in forming some sort of an organization, and to deliver to each one when a note was signed or cash was paid a certificate reading:

“Capital Stock, $2,000.00 No. 19 No. Shares 20 “Certificate of Stock
“This is to certify that we have received of J. H. Deitrich his notes for one hundred dollars, in full payment for his one share of one hundred dollars, in the Perdieran Stallion named Bambin No. 27229.
“Dated at Onaway, county of Presque Isle, State of Michigan, this 18th day of November, 1901.
“Comstock & Crawford.”

The testimony of the witness Morgan tends to prove: That such a certificate as that was delivered to each of the 20 men whose names appeared upon the note in suit; that after the notes had been procured they were delivered, with the book, to Comstock & Crawford; that besides employing Gibbs he also employed one Olmstead, John Dewitt, and Bryan and Walker to assist him. Just what these gentlemen did in the premises does not appear. It is the claim of appellants that:

“In each instance where the note was signed in this case, it was taken immediately after it was signed by one of the 20 makers into the possession of the payees, * * * so that as to the signature of each one of the 15 who actually signed the note the same was delivered when it passed from their hands.”

Upon this theory is built, in part, the contention that there was a fraudulent and material alteration of the note after it was executed and delivered, and it is said that the applicable rule is to be found stated and applied in Bradley v. Mann, 37 Mich. 1, and in Aldrich v. Smith, 37 Mich. 468 (26 Am. Rep. 536). The alleged forged signatures appear as the 3d, 7th, 12th, 16th, and 18th signatures to the note. It is further contended that this note, when it was uttered, was not the genuine note of any of the makers, that those who signed it before a forged signature was placed upon it are relieved because as to them there was a material alteration of the paper, and those who signed after a forged signature was added are relieved for the same reason, and for the additional reason that the paper presented to them for their signatures was not the paper they agreed to sign and supposed they were signing. It may be admitted that, a principal cannot ratify the fraud of an agent by accepting a note, the fruit of such fraud, and claim to be a good-fáith holder, because the agent failed to acquaint him with the circumstances under which he procured the note; the principal being led to believe that it was taken in the regular course of business. Johnston Harvester Co. v. Miller, 72 Mich. 265, 275 (40 N. W. 429, 16 Am. St. Rep. 536). It is not claimed, either, that the payee of a note or any transferee thereof may recover thereon against one who did not in fact sign it or authorize his signature to be made, or upon a note not delivered by the maker or upon a note materially altered after delivery, by the maker or makers, or upon one delivered by the maker supposing it to be a different contract or paper; he acting without any negligence. And it has been held that a material alteration of the contract of the indorsers, by the maker of the note, before it was discounted, released both indorsers. Aldrich v. Smith, supra. And where the maker, after the note was indorsed, wrote into the face of the note an interest clause without the consent of the indorser, and discounted the note in due course, it was held the indorser was relieved. Bradley v. Mann, supra. Compare Weidman v. Symes, 120 Mich. 657 (79 N. W. 894, 77 Am. St. Rep. 603).

It remains, however, that the note in suit is the genuine note of 15 of the makers. The indorsement is genuine. The holder is innocent. The makers were vendees, and the payees were vendors of the property in payment for which the note was executed and delivered. The note was not altered before or after its delivery, whether we consider it to have been delivered by each maker or, finally, to the payees. The real complaint of the appellants is that by arrangement between themselves and the payees or their agents or employés there were to have been 20 signatures to the note; whereas, in fact there are but 15 genuine signatures. They voluntarily intrusted the note with their signatures to the payees or their agent or agents, and complain of a breach of the confidence reposed. The case now presented cannot be distinguished from the case as first presented in this court.

The judgment is affirmed.

Blair, C. J., and Moore, MoAlvat, and Brooke, JJ., concurred.


text:
      In re HODGES’ ESTATE. APPEAL OF ARDIEL.
    1. Estates op Decedents — Allowance op Claims — Account op Executors and Administrators.
    Claims due the administratrix of an estate which she did not present to the commissioners appointed under 3 Comp. Laws, § 9380, are barred by the statute and are not properly allowed as a part of the final account, no exceptions being named in the statute.
    2. Executors and Administrators — Costs.
    On an indirect attempt to defeat an allowed claim costs were awarded against the administratrix personally.
    Error to Kent; Perkins, J.
    Submitted April 9, 1909.
    (Docket No. 25.)
    Decided June 7, 1909.
    Minnie L. Hodges presented her final account as administratrix of the estate of Alonzo N. Hodges, deceased. The account was allowed in the probate court, and James A. Ardiel appealed to the circuit court. A judgment affirming the order of the probate court is reviewed by contestant on writ of error.
    Reversed.

      Gleason & Lee, for appellant.

      Carroll & Nichols, for appellee.
   Blair, C. J.

The following findings of fact and of law made by the circuit court on the hearing of the appeal from the order of the probate judge will sufficiently disclose the nature of the case.

“Findings of Fact:
“ (1) Deceased in his lifetime was treasurer and general manager of the Valley City Desk Company, a corporation engaged in manufacturing furniture. He held one share of stock in the company to enable him to be an officer and vote. His wife owned most of the stock that had been issued by the company. She transferred the one share to him without consideration.
“(2) He died at Hot Springs, March 14, 1905, where he had been attending the races.
“ (3) At his death he owned oil stock worth $500, copper stock worth $300, and five racing colts.
“ (4) He bought these colts December 2,1904, and gave two notes ‘ signed by the Valley City Desk Co. by said Hodges as Treasurer in payment therefor.’ That the desk company was not organized to deal in colts, and Mr. Hodges as treasurer had no authority to give the notes.
“ (5) Mrs. Hodges was appointed administratrix April 14, 1905, and qualified.
“ (6) That the Valley City Desk Co. paid said Young notes at their maturity and held the racing colts above mentioned as security therefor. That, as Mrs. Hodges owned most of the stock of the company, she put the amount paid into her final account as a claim against the estate. That the $254.13 indorsed on one note was paid in furniture by the company.
“ (7) That after his death Mrs. Hodges ‘found a number of accumulated bills against said colts for feed, care, and other matters; also hotel, doctor, and necessary bills.’ That she was obliged to pay all of those bills before she was permitted to remove said colts or her husband’s body.
“(8) That the probate court heard claims against the estate acting as a commissioner, and on November 23, 1905, allowed two claims, McKnight & McAllister $25, Dr. James A. Ardiel $97.50. No other claims were then presented or allowed.
“ (9) Mrs. Hodges filed her final account December 7, 1905, in which she charged herself with having received $2,000 and with having paid out $2,859.37.
“ (10) That her account was allowed January 9, 1906, and Dr. Ardiel appealed therefrom to this court.
“Findings of Law:
“ (1) Deceased bought the colts in his own interest, and not for the company. He had no authority ‘ to give the obligation of the desk company in payment for said colts,’ but used the credit of the company in his own interest, and the colts purchased belonged to his estate.
“ (2) The payment by the administratrix of the Hot Springs bills was justified, and she thereby became equitable assignee thereof.
“ (3) The payment of the notes by the desk company and charging the total amount against the estate was proper, and the administratrix thereby became equitable assignee thereof.
“ (4) Failure of the administratrix to present her claims to the court acting as commissioner on claims does not prevent putting them in her final account and having them allowed. That the bills allowed in the final account would have been allowed if presented to the commissioner. Hence no one is injured by having them allowed in the final account. Hence the account as allowed is affirmed.”

Appellant brings the record to this court for review.

The important, and, as we think, the decisive, question in the case, is as to the correctness of the fourth conclusion of law. The administratrix herself filed the petition for hearing claims by the court, and but two claims were filed; one of them being the claim of appellant. The administratrix contested appellant’s claim, proofs were taken and a hearing had, resulting in the allowance of the claim, and the usual order was entered November 23, 1905, closing the estate against claims.

“It further appearing that the administrator of said estate has sufficient assets of said estate in his possession to pay all of the debts thereof as above ascertained and allowed, it is further ordered that said administrator pay said debts within two months from the date of this order, and it is further ordered that said hearing of claims be and is hereby closed.”

The administratrix took no appeal from the allowance of appellant’s claim. She paid the other claim without contest. Mrs. Hodges had an opportunity to present her claims in the regular way, and have them allowed. The statute expressly provides that persons failing to present their claims “shall be forever barred from recovering such demand or from setting off the same in any action whatever.” 3 Comp. Laws, § 9380. Section 9373, as amended by Act No. 70, Pub. Acts 1901, authorizes a revival of the commission on claims and further time for the presentation of claims on application made before the estate is closed. These provisions of the statute make no exception of the claims of administrators, and are inconsistent with the fourth finding of law. Clark v. Davis, 32 Mich. 156; First Nat. Bank of Paw Paw v. Sherman’s Estate, 117 Mich. 602 (76 N. W. 97); Benjamin v. Early, 123 Mich. 96 (81 N. W. 973); Draper v. Brown, 153 Mich. 120 (117 N. W. 213).

Mrs. Hodges testified:

“ I was present at the hearing in probate court on Hr. Ardiel’s account, and knew the court allowed it. I never paid anything on it. I never intend to. I knew when I filed my final account nothing had been paid him.”

It is apparent from this testimony that defendant adopted the course pursued by her for the purpose of defeating a claim which she was unable to defeat by a direct contest, and we are unable to see why she should be entitled to any equitable consideration. The order of the court found that she had the assets to pay this claim, as she undoubtedly did at that time, the time for payment has expired, and she cannot for her benefit as a claimant deprive herself as administratrix of the assets to pay this claim by the use of her final account.

The judgment is reversed and the record remanded to the probate court for further proceedings in accordance with this opinion. The appellant will recover costs of the circuit court and of this court against the contestant personally.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.


text:
    DOETSCH v. WETLAUFER.
    1. Mechanics’ Liens — Value op Work.
    On a question of fact as to the sum due contractors who failed to complete their contract at an agreed price, the value of the work done is fixed by the court at $95.
    2. Same — Burden op Proop.
    In a suit to establish the amount of a mechanics’ lien, the burden is on the complainant to show the value of the labor and materials furnished.
    Appeal from Wayne; Donovan, J.
    Submitted April 9, 1909.
    (Docket No. 28.)
    Decided June 7, 1909.
    Bill by Frank J. Doetsch and Frederick J. Morgan, copartners as Doetsch & Morgan, against Louis Wetlaufer and Louis Rehberg to enforce a mechanics’ lien. From a decree for complainants, defendants appeal.
    Modified.

      Felix A. Doetsch and James 8. Doyle, for complainants.

      James H. Pound, for defendants.
   Ostrander, J.

This is an appeal from a decree establishing the amount of a mechanic’s lien. Complainants are subcontractors who agreed to do certain plumbing and gas fitting, and to furnish one 5-foot bath tub second, one washstand, one 18x30 sink and back, one 30-gallon boiler and stand, one No. 5 Garland gas heater, one lowdown closet, 12 gas openings, one f water connection, for the sum of $170. The principal contractor did not finish the building. At the time he stopped work the complainants had in part performed their work, and they claim in their bill that what they did and what they furnished was worth $132.75. They had furnished none of the fixtures above enumerated, but had done such work as could be done before the house was plastered. It cost defendants $110 to complete what complainants had contracted to do. The decree is for $137.

As it is conceded that complainants should be paid for what they did and for what they furnished, the only question presented is one of fact. Complainants produced an itemized statement of the materials furnished and of labor performed and the value thereof, and testified to the reasonableness of the charges. This statement is not in the record. Defendants produced testimony tending to prove that complainants were entitled to no more than . from $60 to $70, but they did not attack any particular item of complainants’ account. In this court, as in the court below, complainants are required to establish their demand. They have not satisfied us that it should be found to be $132.75. Assuming that the contract was taken at a fair price, and there is no testimony to the contrary, it seems incredible that the fixtures called for by the contract and the labor of setting and connecting them should be worth no more than $38, especially when defendants were required to pay $110 to secure them, and the testimony to the effect that $110 was a reasonable price is not directly disputed. On the other hand, we deem it unfair to them to accept the sum of $110 as the cost to them of completing the work. Defendants once offered to pay them $75 and to have the work which had been done appraised and to pay such additional sum up to $20 as the appraisement showed the work to be worth. We are satisfied that what complainants did was worth no more than $95, and, while it is doubtful if it was worth quite so much, we shall establish their lien for that amount. Upon this sum they should receive interest at 5 per cent, from October 19, 1907, the date of filing their lien.

The decree below will be modified. Neither party will recover costs of this appeal.

Blair, O. J., and Moore, McAlvay, and Brooke, JJ., concurred.


text:
    PAMMEL v. PACIFIC MUTUAL LIFE INSURANCE CO. OF CALIFORNIA.
    Contracts — Evidence—Previous Negotiations.
    Where letters, preliminary agreements, and negotiations are finally reduced to writing in the form of a signed contract, and the testimony shows that such contract was intended by the parties to embrace the entire agreement, evidence of prior letters between the parties is inadmissible to supplement the written instrument.
    Error to Berrien, Coolidge, J.
    Submitted April 13, 1909.
    (Docket No. 33.)
    Decided June 7, 1909.
    Assumpsit by Gustave J. Pammel against the Pacific Mutual Life Insurance Company of California for breach of an agency contract. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Stratton & Evans (Kronshage, McGovern, Goff, Fritz & Hannan, of counsel), for appellant.

      Charles E. Sweet, for appellee.
   Blair, C. J.

This is an action of assumpsit against defendant as the successor and assignee of the Conservative Life Insurance Company of California for commissions and salary claimed to be due—

“ Under and by virtue of a certain contract in writing entered into by and between the said plaintiff and Conservative Life Insurance Company of California, a corporation organized under the laws of the State of California, which contract is dated November 28, 1903, and is supplemented by letter dated November 25, 1903, signed by Wilbur S. Tupper, vice president of said Conservative Life Insurance Company.”

The contract, dated November 28, 1903, referred to in the declaration, was the usual agency contract for agents in the field soliciting applications for insurance. Although dated November 28th, this contract was actually signed and transmitted to Mr. Lorenze, a managerial agent of defendant’s predecessor at Milwaukee, on December 24, 1903. Plaintiff first went to work for the Conservative under an oral arrangement with Mr. Jasper E. Brady,] its inspector of agencies.' This arrangement was not con- ’ firmed by the company. Mr. Brady also negotiated with Mr. W. B. Thomson and Mr. Abraham Lorenze, and the cornpany closed up these negotiations, and appointed Mr. Thomson inspector to look after business in the State of Wisconsin. Two contracts were made with Mr. Lorenze, which were produced at the trial. One was a general agency contract dated November 10, 1903, like plaintiff’s contract of November 28th above referred to. The other contract, known as a managerial contract, is also dated November 10, 1903, and reads as follows:

‘£ Dear Sir: The following is to be read in connection with, and forms a part of, your contract under even date herewith. The company appoints you as manager of its branch office, located at 126 Miller Building, Milwaukee. In consideration for your services in appointing, training and stimulating the field men to compose your branch, we will pay you the following consideration:
“1. A salary of one hundred dollars ($100.00) a month.
“ 2. A bonus based on the production of paid for business by yourself and the men of your branch for the first year, as follows:
“ ‘ $2.00 per thousand on a production of $500,000 or over.
$2.50 “ “ “ “ “ “ 600,000 “ “
$3.00 “ “ “ “ “ “ 700,000 “ “
“3. The company will pay for your accommodation the rent of its present offices, situated in the Miller Building, as above described, and from time to time, as business warrants, will furnish you such clerical help as is necessary for the handling of the business.
“ Very sincerely yours,
££ Wilbub S. Tuppeb, Vice President.
££ I herewith accept the above proposition and agree to all the terms thereof.
££A. Lokenze.”

In a letter dated November 4, 1903, Mr. Brady notified plaintiff that he had “taken up the matter of the Wisconsin situation with Mr. Tupper, and you will doubtless hear from him at an early date.” On November 13,1903, Mr. Tupper’s secretary wrote for him to plaintiff a letter, containing, among other things, the following:

“Colonel Brady especially recommended three men from Milwaukee, of whom you were one. In making plans for the proposition which is to follow, Mr. Tupper was guided by a desire to utilize, if possible, all of the three men — Thomson, Lorenze and yourself. On account of his familiarity with the work already done in the State, he wished Mr. Thomson to travel through the State, writing new business and looking after the old business, keeping it in line, etc. This being disposed of, there remain yourself and- Mr. Lorenze. Mr. Lorenze expressed a decided preference to Colonel Brady to remaining in Milwaukee — would consider a proposition nowhere else. On the other hand you expressed a willingness and desire to come to the Coast. We therefore have offered Mr. Lorenze the managership of a Milwaukee office and we .wish you to come to the Coast on, or soon after, the first of the year. Meanwhile, we wish you would co-operate with Mr. Lorenze if he takes up the proposition, helping him to get matters into shape until January 1st. This will serve two purposes — enable Mr. Lorenze to get a plant started more quickly and familiarize yourself with policy plans and conditions. On or about January 1st we would like to have you come to the Coast, as before indicated. If you work meanwhile in Milwaukee and the matter of production warrants the same, we will contribute to your expenses of such removal one hundred dollars at the time of your coming; or if you should do little or nothing between this and the first of the year, which is improbable, we will still contribute one hundred dollars to your removal to the Coast, if within, say, two months of your arrival here your work justifies it.”

To this letter plaintiff replied under date of November 19th, as follows:

“Replying to yours of the 13th inst., beg leave to say that so far as assisting in getting the agency established at Milwaukee I would be very glad to do so, and, while per'sonally I have a desire to come to the Coast, I think by that time I could prevail upon my wife to move. I would, however, suggest that I be permitted to remain in Milwaukee at least until February or March 1st, or thereabouts. No doubt Mr. Brady has laid before you the proposition he made me in full, which was based both upon salary and commission, and as I take it to assist in building up the agency and getting it established the company would be willing to pay both the salary and commissions as outlined by Mr. Brady in view of the services I believe I could render them, especially from the viewpoint of securing agents for the company aside from any personal business that I might be able to write. Of course, it is my desire, as I told Mr. Brady, to get in close touch with the agency department and finally, if found competent by the company, to work myself into the home office agency work directly for the company. I feel at this time as though with my personal acquaintance in the State and with the insurance fraternity in this section of the country, I could be of more aid to the company, as well as to the Milwaukee office, right here than I could in California where I have absolutely no acquaintance and where it might take a little while to build up a business. I prefer that in the meantime, and before coming to California, you should make such inquiries regarding my insurance ability, etc., to satisfy yourself as to my qualities for filling any position which you might desire to offer me for California. * * *
“ In reference to your policy forms, contracts, etc., will say that I am thoroughly familiar with them, having fully posted myself upon them as well as the methods of the company so far as I could. I am prepared to give full advice and instructions to agents or do any special work of this character that you might desire to outKne to me. As I understood Mr. Brady’s proposition when here, the State was to be subdivided into districts, and I believe that I could secure for you several good producing district agents in certain sections of this State where I have a large personal acquaintance. I will take this matter up with Mr. Lorenze today so far as starting in immediately and securing business is concerned and establishing agents, and hope to hear from you by return mail outlining fully your proposition so far as compensation, etc., is concerned.”

On November 25, 1903, Mr. Tupper wrote the following letter, referred to in the declaration as the letter supplementing the contract of November 28, 1908, viz.:

* ‘ I have your favor of the 19th inst. It seems that you have entirely misunderstood my last letter to you. I stated in that communication that we had open one position as described by Colonel Brady; that we had both yourself and Mr. Lorenze as candidates for this position; that you had expressed a desire or willingness to Colonel Brady to come to California; and that, therefore, we had offered the place in question to Mr. Lorenze. This place he has accepted. In acting as we have done, we thought that we were acting in accordance with your desires and wishes, and furthering your best interests. Since you had expressed a desire to come to California, I suggested in my last communication that you put in some time in our Milwaukee field in connection with our Milwaukee branch, and that early next year you remove to California according to terms outlined in the letter just referred to. This will give you a chance to make quite a little money in the field at Milwaukee, owing to your acquaintance at that point. It will further give you the opportunity to come to California at no expense to yourself, and, once here, you have our assurance that your advance in our ranks will be limited by your ability alone. The agency contract which you will have while working in connection with the Milwaukee office will be identically the same as that held by Mr. Lorenze, and we have this day written him to explain the contract to you. Understanding our plans and methods as you do, you will be enabled to close a lot of business for such men as you will be able to procure for the company, thus getting the cream of the business and netting you a large earning during your temporary stay in Milwaukee. I trust that I have cleared up the matter of your connection with us in the above. I thought I had made it perfectly clear to you in my last communication. If you can take hold of the work in Milwaukee by simply going out in the field and getting business, you will gain our confidence more than you could in any other way. I shall be pleased to be favored with early advices from you.”

Plaintiff testified that the form of the contract which he later signed was first shown to him in triplicate by Mr. Lorenze about the 15th of November, as the contracts the company desired him to sign; that he refused to sign such a contract, but took the matter up again with Mr. Lorenze on November 28th, when the contracts which he afterwards signed were written, and at which time he had the letter of November 25th.

“He came to me feeling satisfied I would now sign them, since I had the letter from Mr. Tupper, but he did not show me any additional compensation, so I refused to sign them. I saw Mr. Lorenze about these contracts thereafter several times in the month of December. It was the last time, December 2J¡.th, that he showed me this agreement. He showed me then an agreement similar to Exhibit 7 and the additional agreement. I can’t remember at the present time whether the three copies of Exhibit 7 were signed by Mr. Tupper or not, but I do remember that this additional agreement which Mr. Lorenze showed me was signed by Mr. Tupper. * * * I think, if my recollection is right, it was on a sheet of letter paper, outlining exactly what the proposition was.
“Q. You don’t remember whether it was signed by Mr. Lorenze or not?
“A. No, sir.
“Q. Then you remember it was in the shape of a letter to Mr. Lorenze?
“A. As I remember it now, it was. I would not say positively, but that is my recollection. * * * Mr. Lorenze showed me a contract which had been executed by him similar to Exhibit 7, which I went over carefully, and found that contract practically identical to the contract here marked Exhibit 7 as to its terms and conditions. * * * I saw the letter before I signed the contract, and I also saw the contract which Mr. Lorenze showed me before I signed the contract.
“Q. State what it contained. * * *
“The Court: This is the contract with Lorenze to which the letter of Mr. Tupper refers ?
“Mr. Sweet: Yes, sir. * * * The brokerage commission was 50 per cent, graded contract with an underwriting profit of 15 per cent, on agents’ work and your own in addition. By the 15 per cent. I mean he was to get 15 per cent, over and above the regular contract price. This would give 65 per cent, on some classes of business —20 payment life, 20-year endowment, and 20-year distribution policy. On the shorter term policies there was a little smaller commission — graded down. The contract will speak for itself. And in addition to which there was to be 2 per cent, collection fee on all Wisconsin premiums, old premiums written before we were in the office. There was to be a salary of $100 per' month and a renewal commission of 20 per cent, the first year graded to 7£ per cent., I think it is; 7 per cent, credit the second year and thereafter on renewal of policies written by myself. Renewals applied only to my personal business. The first year I was to get 65 per cent, of the premium, the second year I was to get 20 per cent, of it, the third year would get 7 per cent., and subsequent years as long as the premiums were paid, and 2 per cent, on all the Conservative Life collections in the State of Wisconsin. That was under what I called a contract supplemental to Lorenze’s regular contract. Lorenze also had a contract such as I signed. After that I signed a contract which I then had for signature with this company. [Examining a paper.] That is the contract. Plaintiff offered in evidence this contract, dated November 28,1903, and it was admitted and marked ‘Exhibit 7.» * * * i ¿id not take this-contract, Exhibit 7, home with me and read it over. I delivered it to Mr. Lorenze in person. I dictated this letter, Exhibit 18, right in the presence of Mr. Lorenze at his request to get strong with the company himself. * * * The contract, the letter of Mr. Tupper and the document shown me by Mr. Lorenze, fixed the commission which I am entitled to for writing insurance with the Conservative Life Insurance Company. I claim I am entitled to 65 per cent, commission on new business written by myself under my contract with the Conservative Life Insurance Company. That percentage was fixed by the contract and document shown me by Lorenze, in connection with a letter received from Mr. Tupper. Fifty per cent, of that commission was provided for by Exhibit 7. I considered Exhibit 7 a part of a contract with the company. The other 15 per cent. I also claim under a contract with the company. While Lorenze was there I received it.”

Plaintiff was a witness in a suit between Lorenze and the Conservative Company:

“In that trial I was asked this question: ‘On what basis were you working for the Conservative Life Insuranee Company under a contract with, them?’ And I made answer: ‘ I was working under a contract I signed with Mr. Lorenze with the express stipulation that 1 did not waive my right to claim a salary under an agreement entered into with their manager or agent when he was here, Mr. Col. Jasper E. Brady.’ * * * In that trial this question was asked me: ‘ That is, you had an oral understanding with Mr. Brady ?’ And I made answer: ‘Yes, sir.’ In that trial this question was asked me: ‘ And subsequently entered into a written contract with Mr. Lorenze?’ And I made answer: ‘Yes, sir.’ In making the reply, ‘Yes, sir,’ to this and in referring to Mr. Lorenze, I always, being under the impression that Mr. Lorenze represented the company, meant the company, and want it so understood at this time. At that time in that trial this question was asked me: ‘ Have you that contract so that you can produce it ?’ And I made answer: ‘Yes, sir.’ In that trial this question was asked me: ‘ Then as far as soliciting new business was concerned, Mr. Pammel, you were working under a contract between yourself and Mr. Lorenze ?’ To which I answered: ‘ My contract is with the company. I had an oral agreement with Mr. Lorenze on commissions aside from the contract.’ In that trial I was asked this question: ‘ Then your written contract was with the company T To which I answered: ‘Yes, sir.’ In that trial this question was asked me: ‘The contract will speak for itself as far as commissions are concerned ?’ To which question I made answer: • ‘ Yes; that is, so far as commissions with the company are concerned. Mr. Lorenze allowed me the full commission that Col. Brady promised me when he was here.’ * * * In that trial before Commissioner Ryan this question was ashed me: ‘ Was that 65 per cent, paid to you under an arrangement between you and the company or between you and Mr. Lorenze T To which question I answered: ‘Between me and Mr. Lorenze.’ In that trial this question was asked me: ‘That is, 15 per cent, additional?’ To which question I answered: ‘Yes, sir; my arrangement with the company is 50 per cent, with a 20 per cent, renewal.’
“Q. Mr. Kronshage: Was it true?
“A. In a measure; yes, sir.
“Q. Was it true or false ?
“A. It was true as far as it went. Put it that way. It was not a complete answer.
“Q. You want now to modify that by saying the commission arrangement with your company was 65 per cent, would you ?
“A. I would say it is in accordance with letter, the other contract and evidence I put in here.”
On December 24, 1903, plaintiff wrote and transmitted to Lorenze the following letter:
“Milwaukee, Wis., Dec. 24, 1903. “Mr. A. Lorenze, Manager, Conservative Life Ins. Co.,
“ City.
Dear Sir: Have carefully read over the letter of Mr. Behrens, secretary to the vice president, and upon your solicitation and special request sign a contract at this time am herewith enclosing you the contract originally submitted to me, properly signed. All other matters and differences I shall take up with the company at some later date when I can have a personal interview with the officers of the company, who might be in authority. The matter of $100 does not cut ‘ any ice ’ with me, only that I wanted exactly what I was entitled to. I have a memorandum of the proposition made me by Col. Brady, and while my confidence in the inspector of agencies is very much shaken, and I would personally have nothing to do with him, under any conditions by reason of the statements made to me, I will say that my confidence in Mr. Rindge, the president of the company, is unbounded. That I have confidence in the company I assure you fully at this time, and, while I may not have confidence in the statements made by some one single individual whose authority it appears is very limited, I shall continue in the service of the company, if they care to have me, at least for the time being. I shall not, however, under any conditions, until my confidence is fully restored, come to the Coast. My connection with companies I have been with in the past have been such that I did not lose my identity in any way, as I am doing now with the Conservative. Yet I feel that time will tell, and ' when I can have a personal interview with Mr. Rindge and show him a few memorandums that I can fully satisfy him that I have not been justly treated. Of course, I am frank to admit that I did not have the fullest confidence in Col. Brady’s talk when he was here, as he did not impress me as favorably as he might have, and had it not been for previous conversations with Mr. White, of Leonard & White, and my confidence in the methods and policy contracts of the company I should not have been attracted to them in the first place. My contract with the Northwestern National was a much more liberal one than the contract I have today. I will show the company fully that I can make good thousands of miles away from the home office of the company, not because the people I solicit know anything about the company but that they know me personally, and know that I would not represent anything that was not proper. After a few years’ experience with my business the company will find it is the kind that pays them to write— mainly that which stays on the books of the company and which ultimately proves profitable.
I fully appreciate the fact that the company either owes me or it does not, but I am willing to leave that go until I can see the officers of the company and submit my whole proposition to them, which I hope to do in due time. As I stated to you in my letter of the 16th inst., the old matters and differences between the company and myself are entirely separate and distinct from my present or future connections, and shall always be treated by me in that manner. There might be simply a difference of understanding between Col. Brady’s proposition to me and my own understanding of it, but I will be perfectly willing to leave that part of it to any fair minded man of the company who knows the position and understands it fully, and am satisfied they will look at it from a different standpoint from the one they are at present assuming.. I want nothing that does not belong to me. In my 15 years of experience in insurance work I have oftentimes not received all that was coming to me from agents and others in my employ, but will say from those above me I have always been treated courteously and with consideration, and I expect in time to get the same from the • Conservative. There is one thing that I would not do — I would not work for any company where I was obliged to lose my identity and relegated to a minor position, as my aim always has been advancement, and not retrogression. While I appreciate the fact that the Conservative is a young company, and there is room for advancement, yet I believe that Mr. Rindge’s position always would be advancing people for services performed and general knowledge and fitness for positions, at least from all I can learn (and I have made inquiries from friends of mine in Los Angeles). This is the information that I have received. Absolute trust and confidence I should place in the president of the company, and, after all, I believe the president of the company is the actual head. I expect some time in March or April to take a trip to the West, and, if I do, I shall go to Los Angeles also and become personally acquainted with the heads of the company. With the assurance from me that I shall forget the differences that have existed, and that I shall endeavor to prove my ability for writing business not alone volume, but class as well, I remain,
“ Yours very truly,
“G. J. Pammel, “Acting Asst. Manager.”

Plaintiff stated that the managerial contract with Lorenzo produced by defendant and hereinbefore quoted was not the one shown to him by Lorenze. It is plaintiff’s position that he performed his services, in the language of his counsel, “under the terms of both contracts, neither one interfering with the other; the supplementary contract simply adding to the compensation provided in the general agency contract.”

The case was submitted to the jury by the court, and plaintiff recovered a verdict in accordance with the terms of the supplemental contract. Defendant brings the record to this court for review, assigning numerous errors. Among other errors assigned, are several to the effect that the court erred in permitting'parol testimony as to the terms of the alleged supplemental contract to vary the terms of the written contract signed by the parties. We are of the opinion that these assignments were well founded; and, since such conclusion practically disposes of the case, we do not deem it necessary to consider the other points presented by the elaborate briefs of counsel. It seems manifest that from the beginning the parties' contemplated the making of a written contract. The communications between them from the outset were designed to ascertain the terms upon which they could agree, and which should be embodied in a written contract to explicitly and finally determine the legal relations of the parties. The letter of November 25, 1903, was merely one of the steps in the preliminary negotiations. Its conclusion, “ I shall be pleased to be favored with early advices from you,” demonstrates that it was not intended to form a part of a contract then existing or thereafter to be accepted. Its entire terms demonstrate that it was intended to be explanatory of the character of contract which plaintiff was later to sign. The obvious purport of the language referring to the agency contract “held by Mr. Lorenze ” is:

“The written agency contract which you will have while working in connection with the Milwaukee office will, when legally executed, be identically the same as that held by Mr. Lorenze, and we have this day written him to explain the contract, which you are to execute, to you.”

The contract signed by plaintiff was, in fact, identically the same agency contract as that held by Mr. Lorenze. It was the final consummation of the negotiations of the parties, and must be deemed in law to embrace their entire agreement. 2 Parsons on Contracts (9th Ed.), pt. 2, chap. 1, § 10; Lyman v. Robinson, 14 Allen (Mass.), 254; Townsend v. Peasley, 35 Wis. 383; Hunter v. Hathaway, 108 Wis. 620 (84 N. W. 996); Hough v. Brown, 19 N. T. 111; Helper v. Manufacturing Co., 138 Mich. 593 (101 N. W. 804); Tradesman Co. v. Manufacturing Co., 147 Mich. 702 (111 N. W. 343, 112 N. W. 708); Chicago, etc., R. Co. v. Lane, 150 Mich. 162 (113 N. W. 22).

The judgment is reversed, and a new trial granted.

Grant, Montgomery, MoAlvay, and Brooke, JJ., concurred.


text:
    POTTER v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Expert and Opinion Evidence — Railroads — Negligence —
    Statutes.
    Under a declaration charging defendant with negligently setting fire to a building, and with operating a locomotive, not in good order nor properly managed within the meaning of 2 Comp. Laws, § 6295, testimony of experienced engineers based on their experience, tending to show that an engine in good order and properly managed would not throw live sparks across the distance claimed, was competent, although the witnesses were not physicists.
    2. Same.
    The opinions so given, tending to show neglect within the provisions of the statute, raised an issue of fact.
    Error to Eaton; Smith, J.
    Submitted April 15, 1909.
    (Docket No. 54.)
    Decided June 7, 1909.
    Case by John C. Potter against the Grand Trunk Western Railway Company for the negligent burning of plaintiff’s building. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      H. G-eer (W. K. Williams, of counsel), for appellant.

      Huggett & McPeek and Frank A. Dean, for appellee.
   Blair, C. J.

Plaintiff recovered a judgment against defendant for damages for the loss of a building by fire alleged to have been set by sparks negligently permitted to escape from one of defendant’s locomotives. The evidence tended to show that the fire started in the roof of a building used as an apple dryer at a point some 81 feet from the defendant’s side track, from which it was communicated to the building in question. A high west wind was blowing with a velocity estimated at 60 miles an hour. The weather was very dry, and the shingles of the roof of the apple dryer quite old.

Defendant has brought the case to this court for re-' view, contending that the court erred in refusing to direct a verdict in its favor for the reason that the uncontroverted evidence brought it within the proviso of section 6295, 2 Comp. Laws, as construed by this court. See Dolph v. Railway Co., 149 Mich. 278 (112 N. W. 981); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121). The only question, therefore, for our consideration in this case is whether the evidence conclusively proves that the locomotive in question was properly managed and in good order in the particulars specified in the statute. The defendant put in testimony tending to show that the engine was in good order and properly managed, as provided in the statute, and such testimony wag not directly controverted. The plaintiff, however, at the close of defendant’s testimony, put in testimony tending to show that an engine in good order and properly managed would not throw sparks which would set a fire at a distance of 81 feet. The witnesses who gave this testimony were permitted to testify, against the objections of defendant’s counsel, after preliminary examination, that they were not qualified to express an opinion as experts, and motions were made to strike out their testimony. Defendant’s preliminary and cross-examination of these witnesses demonstrated: That they had made no scientific tests to determine the duration of life of sparks escaping through the one-fourth inch interstices of the spark arrester of a . locomotive; that they were not familiar with Sir Isaac Newton’s law of independence of motion, were inclined to disagree with his conclusions, and were not competent physicists. The essence of defendant’s complaint, to state it in the language of its counsel, is that:

“ These witnesses wei’e permitted by the trial court to testify as experts that an engine in good condition could not possibly throw a spark from its smokestack, which under the existing conditions would carry enough vitality to set fire to a shingle roof 81 feet away. This, in face of the fact that it clearly appears from their testimony that these witnesses were testifying to something embraced in science with which all of them were, to say the least, unfamiliar”— citing Peck v. Railroad Co., 165 N. Y. 347 (59 N. E. 206).

In that case:

“An expert connected with the Baldwin Locomotive Works testified as to the appliances used as spark arresters, their operation and effect. He stated that with the appliances now in use the sparks emitted are not of sufficient size nor sufficiently heated to ignite anything along the road. Two locomotive engineers were examined on the same subject. The following questions were put to them, to which the defendant’s objections were sustained, and the plaintiff excepted:
‘Q. What do you say as to the possibility of a spark or cinder the size of a pea bean being thrown through the netting or spark arrester such as you have described ?
“ ‘Q. What do you say as to the possibility of a spark or cinder being thrown out through a spark arrester such as you have described, in good condition, capable of setting a fire a distance of 5„0 or 75 feet from the railroad track ?’
“At the conclusion of the plaintiff’s case, the complaint was dismissed. * * *
“The plaintiff’s proof showed that defendant’s engine had thrown out sparks the size of a pea bean a distance of several rods sufficiently heated after being carried that distance to set grass and fences on fire. The excluded questions put to the witnesses, had they been answered, might have shown that sparks or coals of the character described would not have been emitted by locomotives having proper appliances and in good repair. Indeed, we do not see how the plaintiff could establish the defendant’s liability by circumstantial evidence in any other manner than that which he attempted to pursue. That is to say: First, by proof of the quantity, size, and character of the sparks actually thrown out by the engine; second, by proof by experts that sparks of such character would not be emitted from' an engine in proper repair. The witnesses to whom, the questions were put were locomotive engineers and competent to testify to facts within their observation and experience. The propriety of similar questions was upheld in Brush v. Railroad Co., 10 App. Div. (N. Y.) 535 (42 N. Y. Supp. 103), affirmed 158 N. Y. 742 (53 N. E. 1123), and in Jamieson v. Railway Co., 11 App. Div. (N. Y.) 50 (42 N. Y. Supp. 915), affirmed on opinion below 162 N. Y. 630 (57 N. E. 1113). We have to make this qualification as to the second of the two questions referred to. That question is objectionable, in that it calls for an opinion as to whether the heat in a spark thrown a distance of 50 to 75 feet from a locomotive in proper condition would ignite anything along the road. The liability of ignition would depend on the material or substance along the line of the road upon which the sparks might fall, as well as the conditions of those substances at the particular time. This was not a proper subject for expert evidence, at least from the particular experts on the stand as witnesses. Those witnesses, however, might properly testify as to the condition of sparks or cinders thrown to such a distance; whether, in their observation and experience, live or burning sparks would have been carried so far if the engine was in proper order.”

The witnesses in question in the instant case were locomotive engineers, one of them having had 36 years’ experience, 28 on defendant’s road, and another an experience of 29 years on its road. While some of their testimony was incompetent under the rule of the New York case, much of it was competent, under the rule there laid down, as a statement of the result of their observation and experience. A fair interpretation of their testimony is that, although some of the questions seemed to call for scientific conclusions, the answers were, for the most part, really based upon their observation and experience as to the distance live or burning sparks would be carried if the engine was in proper order. We are satisfied that the testimony of these locomotive engineers raised a question of fact for the jury, and that the court did not err in refusing to direct a verdict.

Judgment is affirmed.

Grant, Montgomery, McAlvay, and Brooke, JJ., concurred.


text:
      In re BRIGHT’S ESTATE.
    1. Appeal and Error — Probate Appeals — Time—Statutes.
    After the statutory period for appealing from the orders of the probate court, reasonable diligence is required in making application to the circuit court for leave to appeal, under 1 Comp. Laws, §§ 674, 675.
    2. Same.
    The statute does not, in limiting the time for filing the petition, permit one in default to have a year for the delayed appeal.
    3. Same — Diligence.
    Sickness and absence from his office of the solicitor for petitioner is not so clearly an excuse for a delay of three months that the decision of the lower court will be reversed.
    Error to Wayne; Hosmer, J.
    Submitted April 26, 1909.
    (Docket No. 90.)
    Decided June 7, 1909.
    Petition by Cecilia Bowe and others for an appeal from an order of the probate court establishing the last will and testament of Catherine Bright, deceased. An order denying the petition is reviewed by petitioners on writ of error.
    Affirmed.

      George W. Radford, for appellants.

      Edgar N. Durfee, for appellees.
    The last will and testament of Catherine Bright was offered for probate August 24,1907, and regularly proved and allowed September 25, 1907. April 2,1908,11 of the heirs at law of the deceased filed in the circuit court their petition for leave to appeal from the decree establishing said will. After notice to interested parties and after a hearing, leave to appeal was refused. An opinion was filed May 4, 1908, in which the reasons for refusing leave are given. It is found that the delay before December 5, 1907, on which day one of the petitioners who appears for herself and as attorney in fact for three others learned of and read the will, is not excused; that the delay from December 5, 1907, to April 2, 1908, is not excused; that it does not appear that justice demands a revision of the order of the probate court. On the same day on which the opinion was rendered the court ex parte gave petitioners leave to file supplementary affidavits, and that such affidavits might be considered as having been submitted to and considered by the court as a part of the petition. The order denying leave to appeal was entered May 12,1908. When the bill of exceptions was presented for settlement, and on August 21, 1908, respondents, over the objection of petitioners, filed four affidavits which are returned to this court as part of the record upon the certificate of the circuit judge, which reads: “I submit same attached hereto for such consideration as the Supreme Court may choose to give them, to which petitioners except.” Mandamus to compel the vacation of the order of the circuit court was refused June 11, 1908, upon the authority of Small v. Cheboygan Circuit Judge, 150 Mich. 6 (113 N. W. 370). Thereupon, on October 2,1908, exceptions were settled, and a writ of error was sued out.
   Ostrander, J.

(after stating the facts). It affirmatively appears that the circuit court considered the affidavits of petitioners filed after May 4th. It is presumed, the bill of exceptions having been signed October 2, 1908, that those filed later by the respondents were considered. There is no occasion to discuss the question of the regularity of the practice pursued because we are of opinion that whether the affidavits are or are not considered no reversible error is made out.

The showing made in the first instance by petitioners appears in the petition and in the oral testimony of Margaret Hoffman, one of the petitioners, taken at the hearing. It is averred in the petition that none of petitioners had any knowledge of proceedings to probate the will or to administer the estate, and were told by relatives interested in the will that they knew of the existence of no will; that deceased had been declared incompetent and her guardian had charge of her affairs, and would attend in due time to the settlement of the estate, of which petitioners would be informed ; that they remained in ignorance of the fact that a will had been probated £ £ until about the beginning of the present year” when Margaret Hoffman, calling at the office of the probate judge, learned about and saw the will, informed the remainder of the petitioners, immediately sought the advice of counsel with a view to testing the validity of- the will, and an investigation developed that the will had been probated more than 60 days earlier. No reason is given for further postponing application for leave to appeal.

It is further averred that the testatrix was mentally incompetent when the will was executed, and that it was secured, if at all, by fraud and duress; that within a short time after the alleged execution of the will the testatrix, upon the petition of the chief legatee, was declared to be mentally incompetent, and the executor named in the will was appointed her guardian. These are all of the material averments of the petition. Margaret Hoffman testified that she learned about the will and read it December 5, 1907. It was some time in January that she learned, through counsel, the date of probating the will. She informed some other of the petitioners by mail and otherwise. No copy of the will is set out, and no reference made to the date of its execution. From the opinion we learn that it was executed in 1904 and a guardian for testatrix appointed in 1907. In her affidavit filed later by leave of the court Margaret Hoffman adds nothing which is material to her testimony except that, “between the ascertainment of the facts of the probate of said alleged will and the filing of the petition for appeal, petitioners’ solicitor was sick and confined to his home, unable to attend to business, and was absent from his office,” and that it was difficult and required time to reach some of the petitioners. If the case is rested upon the showing made prior to the filing of the opinion, it is clear no excuse is shown for delay in applying for leave to appeal after it was learned that the will had been probated. Sections 674, 675, 1 Comp. Laws, will not be construed so as to permit one in default under section 669 to have a year in which to petition for leave to appeal. Hopper v. Livingston Circuit Judge, 139 Mich. 100 (102 N. W. 629); Small v. Olds, 151 Mich. 111 (114 N. W. 872). To this point in the proceedings, it being assumed that the will was made in 1904 and that the testatrix was declared to be an incompetent in 1907, in which year, in August, she died, it is not so clearly made to appear “that justice requires a revision of the case ” that the order should be reversed. If we consider the affidavits which were filed, we find abundant showing sustaining the conclusion of the court below.

Order refusing leave to appeal is affirmed, with costs.

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


text:
      In re SOLOSTH.
    Habeas Corpus — Custody of Infant.
    The custody of a daughter 7 years old, who had been left by her father in the care of proper persons, under an arrangement that she should so remain until she was 15 years of age, is rightfully awarded to them, in the absence of a satisfactory showing as to the suitability of the new home offered by the father.
    Certiorari to Kent; Perkins, J.
    Submitted April 27, 1909.
    (Calendar No. 23,346.)
    Decided June 7, 1909.
    Habeas corpus proceedings by Karl L. Solosth against Gunder Lien and Anna Lien for the custody of petitioner’s infant daughter. There was an order denying the writ, and petitioner brings certiorari.
    Affirmed.

      Louis T. Herman, for petitioner.

      G. A. Wolf, for respondents.
   Ostrander, J.

The following facts appear to be undisputed: The infant, Ella Solosth, was 7 years old January 8, 1909. Her mother died when she was about three months old. Respondents were friends of the family, and to them, shortly before the mother died, her husband, the petitioner, took the child. Petitioner was a man of no means, and had supported himself and his family by doing odd jobs requiring manual labor. He did not propose to continue to maintain a home, and did wish to find someone who would take the custody of and rear the child. He conferred with respondents, who were willing to keep the child if an arrangement for her continued custody, could be made. A parol arrangement was made, by the terms of which the child was to remain in their custody, and be reared by them, until she was 15 years of age. Of this arrangement respondents in their answer say:

“ That the mother of said minor child died in her infancy, and an agreement was made between her father, the petitioner, and these respondents that they were to have the care and custody of said child until she should be 15 or 16 years of age, and able to take care of herself; that under said agreement the petitioner paid something toward the care of said child, in all, however, only about 175; that the care and custody of said child was worth about $2.50 per week, although the money they are entitled to claim, if they see fit on account of said agree- " ment, is not the consideration which prompts them in insisting that they are entitled to retain the custody of the child.”

Later, petitioner went to Minneapolis, Minn., and from there to Spokane, Wash., where he is now living, and, having remarried, is maintaining a home. Two years and more ago he came to Michigan to see, and did see, her. Having remarried, he desired the custody of his daughter, and inquired of respondents the amount he should pay them for her maintenance. He has tendered them nothing. The child has a good home; is well and kindly cared for. Respondents contended:

(1) That they are entitled to the custody of the child because of the arrangement made with the father.
(2) _ That the best interests of the child demand that she remain with them.

The testimony produced at the hearing has been returned to this court. The plaintiff in certiorari assigns errors as follows:

“ (1) Because the court in its decision did not specifically find that this deponent ever contracted to relinquish his parental right to the custody of the said child.
“ (2) Because there was a contract for service as shown by the pleadings.
“ (3) Because this deponent is not estopped by any words or acts of his from asserting his rights as the natural guardian of the said child.
“ (4) Because the court erred in deciding the case solely on the ground of the welfare of the child, when the pleadings and evidence taken on that point were based solely upon information and belief, which could not outweigh the presumption of a good home in favor of the father.
“ (5) Because there was no competent evidence introduced in the case to show that the father was not able to care for the child, nor that the father was not a fit person to have the care and custody of the said child, as will be shown by a transcript of the evidence taken at the trial.”

We have read the testimony. It is not necessary to discuss the errors assigned. There was before the court, without objection from petitioner — indeed, by his express consent — matter which warranted the expression, in the opinion filed:

‘ ‘ I am not clear as to the suitableness or the permanency of the new home to which it is proposed to take her. ”

We find no error. The order is affirmed.

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


text:
    GILBERT v. WILLIAMS.
    1. Town Plats — Jurisdiction—Amending.
    The circuit court has no jurisdiction to correct a mistaken description of a plat of a portion of a township, upon a petition to vacate, filed in accordance with the provisions of 1 Gomp. Laws, § 3376.
    2. Reformation — Mistake—Conveyance—Plats.
    The circuit court in chancery, on a cross-bill filed in a suit to remove a cloud on complainant’s title to lands within a corrected plat, has jurisdiction to reform the original plat, and vacate the revised plat.

      Appeal from Muskegon; Sessions, J.
    Submitted April 24, 1909.
    ( Docket No. 79.)
    Decided June 7, 1909.
    Bill by Edwin S. Gilbert- against James H. Williams and others to set aside a correction of a recorded plat. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered correcting the misdescription in said plat.

      Chamberlain & Walker, for complainant.

      Nims, Hoyt, Erwin, Vanderwerp & Foote, for defendants.
   Ostrander, J.

James H. Williams owned lots 1 and 2 on section 1 in the township of White River, in Muskegon county. In 1896 he sold and conveyed to one Charles Heeg:

“Lots one (1) and two (2) of section No. one (1), * * * except the part platted and recorded part thereof known and described as Nahant Beach. Also all that part of section No. one (1) aforesaid known and described as Nahant Beach, platted and duly recorded in the register’s office of the said county of Muskegon, on the 27th day of January, A. D. 1894, in Liber 3 of Plats on page 55 except lots numbered 7, 8, 9, 10, 11 and 12, block ten (10), and lots numbered 7, 8, 9, 10, 11 and 12 of block eleven (11), and lots numbered 7 and 8 of block twelve (12), according to said recorded plat.”

Later, Heeg conveyed to complainant the same description of land. In February, 1902, Williams, proceeding under 1 Comp. Laws, §§ 3376, 3377, filed a petition in the circuit court for the county of Muskegon, alleging that he was owner of three of the 14 lots reserved as above, certain proceedings in the year 1894 to plat Nahant Beach, that a mistake was made in the description of the land in the recorded plat, the names and residences of owners of the lots and land affected, including complainant, descriptions of the land owned by each, the making of a revised and corrected plat, but upon a scale of 160 feet to the inch, instead of 120 feet to the inch, as in the recorded plat, having written upon it a true, full, detailed, and correct description of the land actually surveyed and platted. He prayed that, upon due proofs being produced, an order might be made to file of record the new plat, and that the same stand and be known as the revised and corrected plat of Nahant Beach, section 1, town 11 north, range 18 west. The order prayed for was made, and the new plat was recorded.

Complainant had no actual notice or knowledge of this proceeding. Learning some time later about the proceedings and the new plat, he filed his bill to set aside the proceedings, all action taken or had by virtue of the order granted, and for general relief. To the bill he made Williams and the other lot owners defendants with proper averments of their alleged interests, and charged that what had been called '‘Nahant Beach ” had never any legal existence, and all conveyances of any division or subdivision as lots or blocks in Nahant Beach were void. It is charged, also: That the proceedings to correct said alleged plat were null and void because the court, acting in that behalf, was without jurisdiction in the premises; that there was never any legal survey made, no proper markings of corners or of streets and alleys; and that the original plat so-called was a fiction, but because of the record said, plats were a cloud upon his title, interfered with his platting and disposal of the land in whole or in parts, without an apparent incumbrance resulting from said plats. Four of the defendants jointly answered the bill, denying its material averments and the right of complainant to any relief. Proofs were taken in open court and a decree entered dismissing the bill. A written opinion was filed, in which decision was rested upon the grounds: That complainant’s conduct was unconscionable; that the plat complained about worked no injury or injustice to him, while to vacate it without correcting the original plat would work an irreparable injury to defendants, and that complainant, in order to do equity, must consent to a correction of the original plat. It is not determined whether the proceedings to correct the plat were effectual. It is found that the land described in the first, or 1894, plat is one-half mile west of the property claimed to have been platted, and that this misdescription was a mistake. It is found that in making the 1894 plat the land was surveyed, accurate measurements made, and monuments placed to mark boundaries, corners, angles, and street and alley intersections, and that the plat and dedication recorded complied in all respects with the statute. Neither plat appears in the record.

A comparison of the descriptions of the land as given in the plats shows a difference of 50 feet in the described length of the west line of the platted land. This may have come from a mistake in adding known measurements for the purpose of describing the land originally platted. There is testimony supporting such a conclusion. Upon the whole the preponderance of the testimony favors the conclusion that the two plats refer to the same property, that this property was surveyed and measured in the year 1894, and that it is true that the only difference is in the description of the land platted, which difference consists in describing the starting point in the first plat as a point on the west line of section 1, town 11 north, range 18 west, and in the new plat, and correctly, as a point on the west line of lot 2, section 1, etc. To this conclusion the appellees agree. It does not appear that according to the new, or last, survey, or by the new or revised plat, any block, lot, street, or alley, appearing upon the first plat, was vacated or altered, or that any dimension, course, or distance indicated upon the first plat was changed upon the second. It necessarily follows that the only relief sought in the statute proceedings was the correction of a mistake in the description, in the plat, of the land platted and in the record of such plat. It was not then a proceeding to alter or vacate a plat or survey or any part thereof, within the meaning of the statute. It can hardly be said that the record made in the course of those proceedings and by the recording of the second or revised plat does not apparently affect the title of complainant to the remainder of the lots in Nahant Beach and the other land conveyed to him. Ah intending purchaser of any of his property might well demand explanation of an abstract of title which indicated the matters so appearing of record. It is true he might have asked specifically that the mistake in the description of the land be corrected in the plat and in the record thereof. So, also, defendants were at liberty to seek such relief by an answer in the nature of a cross-bill. Complainant prays for general relief. The testimony shows the true state of affairs.

We find, against the claim of complainant: That there was originally a survey, measurements, and platting of certain property-, the’plat to be called and known as “Nahant Beachthat by mistake the land actually platted was wrongly described in the map thereof, which was made and recorded; and that complainant purchased with actual knowledge of the platting, but not of the misdescription. We find that the statutory proceedings referred to were ineffectual to correct-such misdescription because it appeared upon the face of the petition filed therein that the court had no jurisdiction in that behalf, and that no relief which the court had jurisdiction to give was asked for; but we know of no good reason for reversing the decree below without also determining and settling the rights of the parties to this litigation, as those rights have been made to appear.

A decree will be entered in this court reversing the decree below, vacating the last or revised plat of - Nahant Beach and the record thereof, and correcting the misdescription of land in the first plat and in the record thereof. Neither party will recover costs of this court or of the circuit court.

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