text:
    ORSO v. GREAT LAKES ENGINEERING WORKS.
    1. Appeal and Error — Directing Verdict — Trial.
    In reviewing a judgment on a verdict directed for defendant, the plaintiff is entitled to a consideration of the evidence in the aspect most favorable to him.
    2. Master and Servant — Safe Place — Warning and Instructing Servant.
    It was a question of fact for the jury to determine whether defendant was negligent in directing plaintiff to carry heavy iron bars over a deck freshly painted, without warning him of the slippery condition of the surface, on which plaintiff slipped and was injured.

    3. Same — Eellow^Servants—Nondelegable Duties.
    Since the negligence of a superintendent or foreman of defendant in so directing plaintiff was the neglect to furnish plaintiff with a safe place, it was not the neglect of a fellow-servant, but failure to perform a nondelegable duty of the master.
    4 Same — Risks Assumed.
    Under testimony that plaintiff did not know of the slippery condition of the surface and that it was not apparent, he is ■ not chargeable with assumption of the risk.

      Error to Wayne; Mandell, J.
    Submitted January 12, 1911.
    ( Docket No. 3.)
    Decided February 1, 1911.
    Case by Joseph Orso against the Great Lakes Engineering Works, for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      James B. Neill, for appellant.

      human W. Gfoodenough, for appellee.

      As to duty to warn or instruct servant, see note in 44 L. R. A. 33.

   Stone, J.

This is an action on the case to recover damages for personal injuries received by the plaintiff while in the employ of the defendant. At the close of the testimony, the circuit judge directed a verdict for the defendant. The plaintiff has brought error. The sole question in the case is whether or not the circuit judge erred in directing a verdict.

We must consider the case in its most favorable aspect to the plaintiff under the evidence offered by him. The plaintiff is a Hungarian laboring man, not skilled in the English language, but was possessed of good health and eyesight. He was injured on May 26, 1909, while in the employ of the defendant, and while engaged in carrying two iron grate bars from a dock at Ecorse to the top deck of a steel freighter which was upwards of 400 feet in length, which had just been completed by defendant in its shipyard. These grate bars were carried to the deck for convenience of loading upon another vessel alongside. Two ladders were provided by defendant, which were placed against the hull of this boat and about 25 feet apart, which plaintiff was required to use on the day he received the injury. The top deck of the boat was constructed of steel plates, which had been painted prior to said day. For seven days previous to the date of the injury, the plaintiff had been engaged as a common laborer in various occupations about defendant’s shipyard, unloading iron in the yard, and cleaning out the interior of the boat hulls. On the day of the injury the plaintiff was ordered, with a number of other workmen, by a person called the superintendent of defendant, to carry on his shoulder iron grate bars, two at a time, which were 5 feet in length and weighing about 60 pounds apiece, up these ladders, and place them on the opposite side of the deck. The plaintiff had made about 16 trips up what is called in the record the first ladder, before he was injured. He was later ordered by the same person, who he says was called superintendent, to continue carrying these grate bars up what is called the second ladder, and to place them with the others. It appears from the record that the paint was dry and firm on that portion of the deck which the plaintiff traveled over while using the first ladder. It was necessary for the plaintiff, on reaching the top of the ladder, to step over a railing from 9 to 12 inches high in order to reach the deck. It also appears from' the record that the plaintiff was the first man to go up this second ladder, and, as he stepped over the railing and upon the top deck, his foot slipped on the paint, and he was suddenly thrown to the deck, the two iron grate bars which he was carrying fell onto, and crushed the bones of, and he claims permanently injured, his left hand. The plaintiff testified that the cause of his foot slipping on the deck was due to the paint not being set or dried, its slippery condition, and that the green paint came off and on his shoes and clothes as he fell; that he did not know of the slippery and wet condition of the paint, and that it was not set or dry and that he was liable to fall; that he had no information or knowledge of the danger of slipping on fresh or soft paint when applied to steel plates, and was not warned of the care or caution to be taken when stepping onto paint that had not become hardened. The defendant gave evidence tending to show that the person who gave the orders was the foreman, and not the superintendent, and the court so held, and we think properly, as it did not contradict the evidence of the plaintiff, who simply testified to what the person was called by the men.

Upon these facts, Did the circuit judge err in directing a verdict for the defendant? We are constrained to say that, in our opinion, under the evidence contained in the record, the case should have been submitted to the jury. It was a fair question, under all the evidence, whether the deck at the point named was slippery because of the presence of green or fresh paint (the plaintiff testifying that it was), and thereby rendered unsafe and dangerous. This vessel had been finished, and the plaintiff had been directed to pass over it in his work. He was entitled to a safe place to work. If the place had been rendered unsafe by reason of its having been recently painted, and if the deck was there covered with green or fresh paint so as to make it likely that plaintiff would there fall or slip under his load, it was the duty of the defendant to warn him of the danger, especially where, as is here claimed, the appearances were deceiving. Under such circumstances, the doctrine of safe place applies. The rule that it is the duty of the master to furnish a safe place for the servant to work, is so universal, and so thoroughly settled, that no citation of authorities is necessary to sustain it. In such a case it does not matter whether the order or direction was given by the superintendent or a foreman, for it is also settled that the duty to furnish a safe place in which to work is one which cannot be delegated by the master. It is the duty of the master to make reasonable provisions to protect the servant from the dangers to which he is exposed while engaged in the discharge of his duty. This duly cannot be delegated. Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Sadowski v. Car Co., 84 Mich. 100 (47 N. W. 598); Roux v. Lumber Co., 94 Mich. 607 (54 N. W. 492); Beesley v. F. W. Wheeler & Co., 103 Mich. 196-211 (61 N. W. 658, 27 L. R. A. 266); Cristanelli v. Mining Co., 154 Mich. 423 (117 N. W. 910); Hosking v. Mining Co., 163 Mich. 538 (128 N. W. 777).

Neither can we say, as matter of law, on this record, that the plaintiff assumed the risk.

We think that the circuit judge erred in directing a verdict, and the judgment below is reversed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    LEVY v. HOUGHTON COUNTY STREET RAILWAY CO.
    Railroads — Negligence—Operation of Cars.
    Deceased was walking in the country on the private right of way of defendant company, which operated a street and interurban railway. Seeing a car approaching four or five hundred feet away, he stepped outside the rails, put down between them a basket that he carried, and signaled the car to stop. It passed the usual stopping place or station without decreasing its speed of 15 to 18 miles an hour, and as it approached decedent he signaled a second time. The next station was about 1,500 feet away. Plaintiff’s decedent stooped to pick up his basket when the car was 50 or 60 feet distant, and was struck and killed. A single step away from the track would have removed him from danger; he was in plain view of the car, facing it, and saw it approaching. Held, that deceased was guilty of contributory negligence, and that, since the motorman was entitled to rely on his stepping out of the way, defendant was not negligent.
    Error to Houghton; Streeter, J.
    Submitted January 13, 1911.
    (Docket No. 82.)
    Decided February 1, 1911.
    Case by A. Louis Levy, administrator of the estate of Samuel Sausonsky, deceased, against the Houghton County Street Railway Company. A judgment for defendant on a verdict directed by tbe court is reviewed by plaintiff on writ of error.
    Affirmed.

      Hanchette & Lawton, for appellant.

      Allen F. Bees, for appellee.
   Stone, J.

This suit was brought under the survival act by the administrator of the estate of Samuel Sausonsky, deceased, against the defendant to recover damages for running intestate down and killing him, as alleged and claimed, in a wanton and reckless manner, on December 24, 1907, about noon of that day.

The defendant company operates a street railway between the villages of Houghton and Calumet, and passes through various mining locations, among which are the locations known as “Mesnard” and “Arcadia,” on the property of the Quincy Mining Company. These two locations are about 2,000 feet apart, and a station is maintained at each for the accommodation of passengers getting on and off the company’s cars. These stations are known, respectively, as “ Mesnard Station” and “Arcadia Stationthe latter being located northeasterly of the former. The company’s right of way at this point was upon private property, and was inclosed by a wire fence. The track of the defendant was westerly of the county road which at “ Mesnard Station ” was nearly 300 feet distant, and at “Arcadia Station” was about 50 feet distant. Considerable testimony was offered by the plaintiff tending to show that to approach these stations there were maintained at intervals openings or stiles in the fence, through which footpaths ran leading to the track, and passengers and the public in general passed and repassed along the track in getting off and aboard the cars at these stations. A number of families of miners lived on the opposite side of the highway, and one or more between the track and the highway, between the stations. There were also a number of farmers living in the neighborhood, and a number of families at Concord City, about three-fourths of a mile distant, who, it was claimed, used the track in going to and from the Mesnard location or shaft and the Arcadia Station. This evidence was offered to show that the track was used to walk upon commonly by the public, with the knowledge of the defendant, and really at the invitation of the defendant. As in our view of the case, under the evidence, it makes no difference whether the decedent was rightfully upon the track or not, we shall not find it necessary to elaborate this point.

The track between the two stations ran upon an elevation or embankment built of mine rock and dirt, varying from oi to 8 feet in height above the surrounding land, and the grade of the track was about eight feet wide,, being about the length of the ties, and the width of the car body that passed over the track was about 7 feet 9 inches. There was a slight down grade from the Arcadia Station to the Mesnard Station. The decedent was 22 years of age. He was born in Russia, and had been in this country about two years. He was an intelligent, bright, healthy young man, and weighed from 160 to 180 pounds. At the time of the injury complained of, decedent was a pack peddler, and was carrying on his right arm a large basket filled with various goods and merchandise, and a pack supported by his shoulder and hanging at his left side. He had come upon the track about 1,000 feet southerly from Arcadia Station, and was walking toward said station between the rails. When he had. reached a point about 800 feet southerly from the Arcadia Station, the car of defendant, from Calumet, came toward him from the opposite side of the station. The car was. running at a speed of 15 to 18 miles an hour. As soon as the car came in sight of him, decedent took six or eight steps more, and then stepped on the tie at the left-hand side of the rail facing the car and set his large basket down on the track between the rails, and, with his right arm extended, made a signal. The motorman blew the regular whistle for the station, but did not stop there. Decedent made the first signal when the car was about 150 feet on the opposite side of the station. The car came on and did not stop at the station, and, as the car passed the station, de‘ cedent signaled a second time. * He stood in. this position on the same tie, and so remained until the car came within 50 feet of him, when he leaned over, apparently to pick up his basket, and he was struck by the car. Decedent sustained a compound fracture of the back of the skull, and a fracture of the right leg, and died, as the result of the injuries, between 6 and 7 o’clock in the evening of the same day. At the station the motorman shut the power off and let the car down the grade. He did not check the speed of the car, or apply the brakes, or sound the gong, and the car ran about 800 feet beyond decedent before stopping. It is not disputed that decedent saw the car and the motorman, and the motorman saw decedent when they were from 450 to 500 feet apart, and that each remained in open, clear view of the other until the injury occurred. In fact, they were facing each other. The circuit judge directed a verdict for defendant, on plaintiff resting his case, on the ground that no negligence of defendant had been shown.

The plaintiff has brought error, and the main question in the case is whether the circuit judge was justified, under the evidence, in directing a verdict for the defendant. We do not deem it important whether we consider decedent as a licensee or a trespasser. We have these undisputed, prominent, and controlling facts: He was walking along the railroad track of defendant, between the rails, towards Arcadia Station. When he was about 300 feet from the station, a car running from 15 to 18 miles an hour towards him came into his view about 150 feet on the opposite side of the station. He saw the car, because he beckoned or signaled. He stepped outside of the rails, and set his basket down. The car did not stop at the station, but came on at speed. After beckoning the second time, and seeing that the car did not stop at the station, decedent continued standing outside of the rail. When the car was 50 feet distant, he stooped over to pick up his basket. From and after the time he stooped to pick up the basket, the car could not have been stopped, and the collision avoided by defendant. From the drawings and photographs placed in evidence by the plaintiff, it is shown to a demonstration that a single step away from the track would have removed decedent from all danger. The slope of the embankment was a gradual one. The snow was not deep. He should have stepped out of the way of the car. His failure to do so was gross negligence. The dangerous situation was created by the decedent, and the defendant was in no sense responsible. Redson v. Railroad Co., 120 Mich. 671 (79 N. W. 939).

There was here no ignorance of the situation on the part of the decedent. Waiving for the moment the question of alleged negligence of the motorman, when decedent saw that the car was not stopping but proceeding rapidly on its way, common prudence required that he should step aside and let it pass. As was said by Justice Moore in Buckley v. Railroad Co., 119 Mich., at page 586 (78 N. W. 656):

“According to all the testimony, she was so near this track as to be struck by the passing train. If this did not constitute negligence, it would be difficult to find a case of negligence ” — citing cases.

When the hour of the day, the openness of view, and the clearness of vision are considered, such conduct as is here shown amounts to gross negligence. Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271); Wade v. Railway, 151 Mich. 684 (115 N. W. 713). But, irrespective of the question of decedent’s negligence, is there in the record evidence sufficient to impute to the motorman gross or wilful negligence, or in fact or law any degree of negligence ? We think not. His car was running at the usual speed of 15 to 18 miles an hour. He was approaching Arcadia Station, blew the whistle for that station, received no signal to stop at the station, and, there being no passengers at the station desiring to take the car, he did not stop. This seems to have been in accordance with the practice of the defendant. Between two stations less than 2,000 feet apart, it would be unreasonable to expect the car to stop. Under the conditions as they appear here, there can be no question of waving, or signals, or anything of that kind. The situation was apparent to both decedent and the motorman. It clearly-appeared that the latter did not intend to stop his car. The question is, What was the duty of the motorman under the circumstances ? Was it the duty of the motorman to check his car, or bring it to a stop whenever he saw a person — who saw him — on the track from 400 to 500 feet away, where by taking a single step that person would be out of all danger ? Or, on the other hand, was not the motorman entitled to entertain the belief that a man so on the track would in the natural course of things step out of the way before the car reached him? We think so. It is a common-sense deduction that a motorman, seeing a man walking or standing on the track a number of hundred feet distant, knowing that the man has notice of his approach, must assume and may properly infer that the man will step out of the way of danger. This is not only a common-sense inference, but is the rule established by the authorities:

“A person has the right to act upon the assumption that the other party will exercise care.” Baldwin on Personal Injuries [2d Ed.], § 147.

We are of opinion that the motorman was not guilty of any negligence in proceeding without checking or stopping the car, because he had the right, in the exercise of his common sense, to believe that decedent would step aside, and out of the way, and to rely upon and act upon such belief. Buckley v. Railroad Co., supra; Trudell v. Railway Co., supra. In the case of Redson v. Railroad Co., supra, it was said of the engineer:

“ He was not required to check the speed of his train, or to take means to stop it, until he was chargeable with clear notice that the horses and Woodworth were in danger, and could not get off the track before the engine reached them. The assumed conduct of the engineer upon which the liability of this case is based is repugnant to human nature. No one but a man of the most cruel instincts would be guilty of it. There is nothing in this case to show that the engineer did not act with promptness as the situation appeared to him.”

It is pertinent to ask when the motorman should be chargeable with clear notice that decedent would not get off the track. We think that he had the right to assume, up to the last moment, that decedent would step aside, and out of the way, and it is true that at such last moment it was too late to stop the car, or materially check its speed. Wade v. Railway, supra. So we repeat that the decedent could have easily avoided the danger by taking one step out of the way, when the car was within a few feet of him. The motorman had the right to assume that he would do so. Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139), and cases there cited. In that case Justice Grant, speaking for the majority of the court, said:

“A single step would have placed him beyond danger, and the motorneer had a right to act on the presumption that the deceased was in possession of his faculties, and would take the step. This could be done when the car was within 15 or 20 feet. What reason is there for saying that the motorneer was guilty in not anticipating that deceased would not take the usual precaution to protect himself ? ”

As was said by the circuit judge in this case, in denying the motion for a new trial :

“ Oases where the circumstances showed that the one occupying a dangerous position was unaware, or might have been, unaware, of an approaching car, and where the situation was such that the motorman might have known of that condition, can have no bearing on this case.”

See, also, the following cases: Starbard v. Railway Co., 122 Mich. 23 (80 N. W. 878), and cases there cited; Kotila v. Railway Co., 134 Mich. 314 (96 N. W. 437); Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535). We are of opinion, therefore, that the circuit judge did not err in directing a verdict for the defendant.

Other assigned errors relating to rulings upon the admissibility of evidence, which we have not specifically treated, have all received careful consideration, and we find no prejudicial error in the record. The judgment below will be affirmed.

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


author: Moore, J.

text:
    SCHMIDT v. SCHMIDT.
    Partnership — Evidence—Accounting.
    In an accounting between alleged partners, whose testimony was contradictory as to the existence of a partnership, a decree dismissing the complainant’s bill for failure to show its existence, but without prejudice to his right to institute an action at law for services rendered to defendants, is affirmed.
    Appeal from Houghton; Streeter, J.
    Submitted Jan-nary 16, 1911.
    (Docket No. 88.)
    Decided February 1, 1911.
    Bill by Frank Schmidt against Carl Schmidt, Oscar Schmidt, the First National Bank of Calumet, and the Citizens’ National Bank of Houghton, for the dissolution of a partnership, an accounting, and other relief. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      O'Brien & Le Q-endre, for appellant.

      MacDonald & Kerr, for appellees.
   Moore, J.

The bill of complaint in this cause alleges a partnership existing between the complainant and the defendants, Carl Schmidt and Oscar Schmidt, and asks for an injunction, for the appointment of a receiver, for the dissolution of the partnership, and an accounting. Frank Schmidt, the complainant, at the date of hearing, was 26 years old, Carl Schmidt 41, and Oscar Schmidt 34. A hearing was had in open court. The bill was dismissed, but without prejudice. The complainant has brought the case here by appeal.

We take the following statement from the brief of counsel for appellant:

“There is but one question for the court to decide. Do the facts, as testified to, establish a partnership between Frank Schmidt and his brothers, Charles Schmidt and Oscar Schmidt? We claim that the facts tend strongly to show that there was a partnership existing between all these brothers. It was, indeed, a very loose partnership, one that perhaps could be entered into and conducted for a long period of time .only by brothers, who were all very illiterate. There never was any formality of any kind when the partnership was first entered upon, nor during all the years that it was carried on, and there never was at any time any books of account kept by the brothers. Charlie always handled all the money and paid and drew all checks; no other brother ever having or attempting to exercise this right. There never was any accounting between them at any stated periods, nor any division of profits at any stated period, or at any period from the beginning of partnership up to the beginning of this suit. * * * At the time of the suit none of the brothers were married. Indeed, it might be said that it was a brother-ship partnership.”

Much of the testimony, especially of the two defendants, Carl and Oscar Schmidt, lacks candor and frankness; hut a careful reading of the entire record fails to establish the existence of a partnership. It would profit no one to set out the testimony in detail. It is sufficient to say that, though it shows much work done by complainant for which defendants claim he has received his pay, it does not justify a finding that a partnership is shown. If complainant has any just claim against defendants, it should be established in a different way than in this action.

The decree of the court below is affirmed, with costs.

Ostrander, O. J., and Bird, Hooker, and McAlvav, JJ., concurred.


author: Bird, J.

text:
    HANEY v. ALLEGAN CIRCUIT JUDGE.
    Mandamus — Practice—Record — Printing Material Portions.
    A motion to dismiss proceedings in mandamus for failure to comply with Supreme Court Rule 56, requiring the printing of material portions of the case, will be granted where relators have omitted from the printed record material parts of the respondent’s return.
    Mandamus by George M. Haney against Philip Padgham, judge of the Allegan circuit court, to require the settlement of a record and approval of an appeal bond.
    On motion to dismiss.
    Submitted January 12, 1911.
    (Calendar No. 28,916.)
    Motion granted February 1, 1911.

      Brown & Farley, for the motion.

      Eugene Carpenter, contra.

   Bird, J.

Relators filed their petition in this court, setting forth certain proceedings had in the circuit court in chancery for the county of Allegan, in the matter of the application of Archie T. Miller for á writ of assistance, and praying for a writ of mandamus to compel the respondent to settle a case on appeal and to approve relators’ appeal bond in that cause. An order to show cause was granted by this court, and in due time the respondent filed his return thereto. Relators caused the record to be printed and filed, whereupon counsel for respondent filed a motion to dismiss the proceeding, for the reason that Rule 56 of this court, 154 Mich, xxx (120 N. W. v), with reference to the printing of records in mandamus cases, had not been complied with, in that material portions of respondent’s return had been omitted from the printed record.

We have examined the respondent’s return and the printed record, and we are satisfied that the point is well taken, and that there has not been a substantial compliance with that rule.

The relators will be given until March 1, 1911, to file a printed record of the proceedings in this cause, which will comply with said rule, and in default thereof the case will stand dismissed. The respondent will recover costs of this motion.

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


text:
    PEOPLE v. MITCHELL.
    Criminal Law — Trial—Failure of Respondent to Take Stand —Witnesses—Statutes.
    On the trial of a criminal cause in which respondent did not' take the stand as a witness in his own behalf, it was prejudicial error for the court to charge the jury that they should not give the fact any unfair consideration (3 Comp. Laws, § 10211), since the jury were, by inference, permitted to give the fact consideration.
    Exceptions before sentence from Wexford; Lamb, J.
    Submitted January 20, 1911.
    (Docket No. 180.)
    Decided February 1, 1911.
    William Mitchell was convicted of keeping a place where intoxicating liquors were sold in a county that had adopted prohibition of the liquor traffic.
    Reversed.

      William Yearnd, Prosecuting Attorney, for the people.

      Gaffney & Miltner, for respondent.
   Bird, J.

The information in this case charged the respondent with keeping a place where intoxicating liquors were sold, given away, and furnished, contrary to Act No. 207, Pub. Acts 1889, as amended. A trial was had, and the respondent was found guilty, and he has brought the case to this court for review on exceptions before sentence.

The defendant assigns error upon that part of the charge of the trial court wherein he instructed them that:

“The respondent has not seen fit to take the stand and testify in his own behalf. That is a privilege that he may exercise or not, just as he sees fit. He has a right to take the stand and testify in his own behalf. He also has a right to refrain from testifying. That is a matter of his own choice entirely, and you are not to give that fact any unfair consideration if he dpes not choose to take the stand and testify in his own behalf.”

Defendant’s counsel contends that—

“To state that they should not give it any unfair consideration, is not enough, because such statement allows them to consider it for what it was worth. * * *”

The respondent had a right to be a witness in his own behalf, or not, as he chose. If he chose to refrain from testifying, no presumptions were thereby created against him, and the jury had no right to consider it in any manner or for any purpose. We think that, when the trial judge instructed the jury that they should give it no unfair consideration, he inferentially said to them that they might give it a fair consideration, and that they could consider it so long as they did not do so unfairly. Under the statute, the jury did not have even that right. Section 10211, 8 Comp. Laws, provides:

“That a defendant in any criminal case or proceeding shall only, at his own request, be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

The language of this statute indicates that the legislature that passed it meant to leave no room for doubt of its intention to protect respondents in criminal cases in this right, and, if we are to construe it so as to give it that effect, we must hold that the trial court was in error in so instructing the jury.

Counsel also assigns error on the failure of the people to produce certain witnesses whose names were indorsed in the information; but, as this question is not likely to arise on a retrial of the case, it will be unnecessary to discuss it.

The judgment of the trial court is reversed, and a new trial ordered.

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

       2 Comp. Laws, § 5112.


author: Hooker, J.

text:
    MANDELL v. FARRELL.
    Elections — Circuit Judges — County Officers —Primary Petitions.
    It was the intention of the legislature, by Act No. 281, Pub. Acts 1909, to fix the first Wednesday in March for the nomination of candidates for county offices by primary petition; and the offices of circuit judge and county auditor of Wayne county were included, so that mandamus lies to compel the county clerk of Wayne county to accept and file the petitions of candidates for such offices. Act No. 845, Local Acts 1905, construed.
    Mandamus by Henry A. Mandell and Charles A. Buhrer against Thomas F. Farrell, Wayne county clerk, to compel the filing of petitions for primary nomination of the relators as candidates for circuit judge and county auditor, respectively.
    Submitted February 10, 1911.
    (Calendar No. 24,469.)
    Writ granted March 13, 1911.
    P. J. M. Hally, for relators.

      Franz C. Kuhn, Attorney General, and Thomas A. Lawler, Assistant Attorney General, for respondent.
   Hooker, J.

Act No. 345, Local Acts 1905, provided for the nomination of all public officers who are required by law to be elected by electors residing within Wayne county, or of any subdivision thereof, etc., by the electors, at primaries, prescribing at length and in detail the time of holding primary elections for the purpose, and the method of carrying out its provisions. That included circuit judges. It provided that all spring primaries should be held on the first Monday in March, except primaries for special elections, and to secure a place on the printed ballot it was only necessary for candidates for circuit judge and county offices to file their own petitions with the county clerk. At the session of 1909, the legislature passed a general primary election law, being Act No. 281, Pub. Acts 1909, which is conceded to have been intended to apply generally throughout the State, and this act repealed Act No. 4, Pub. Acts Extra Session 1907, and “all local primary election acts contravening the provisions, except as therein otherwise provided.” This act provided (in section 15):

“The question of the nomination of party candidates for the office of circuit judge shall be submitted at the April election, nineteen hundred ten, without petition therefor, to the qualified electors of each judicial district and shall thereafter be resubmitted in the same manner and upon the same conditions as are provided by this act for the resubmission of said question in cities: Provided, that all duties imposed upon the city or county clerks shall, in the case of judicial districts, be performed by the secretary of State: Provided further, that the vote upon submission or resubmission, as well as the vote cast for candidates in judicial districts adopting direct nominating systems, shall be counted and canvassed as is the vote cast on the election of circuit judge: Provided further, that when the electors of any judicial district shall decide as herein provided to nominate party candidates for circuit judge by direct vote, the primary election for that purpose shall be held in said judicial district on the first Wednesday in March preceding the election at which such circuit judge is to be elected. All of the provisions of this act applicable to the provisions of this section shall apply to the direct nomination of party candidates for the office of circuit judge: Provided further, that all judicial districts in this State which now nominate by a primary system shall continue to so nominate until said judicial district shall decide by a vote of the electors not to so nominate.”

It is contended by the attorney general that the last proviso constitutes the only “exception” mentioned in the repealing section, being section 57 of the act, and we understand his claim to be that any local act that is in any way inconsistent with Act No.- 281, aforesaid, is repealed in toto, except as to the continuation of primary elections provided for by it.

There is no question but that the local act mentioned is in some things inconsistent with Act No. 281. Act No. 281 does not expressly fix or state any date for spring primaries for the nomination of county officers, and the only provision fixing a date for primaries for the nomination of circuit judges is that quoted. Section 26 of this act provides:

“ To obtain the printing of the name of any candidate of any political party for any district office upon the primary election ballots of such political party in the various voting precincts of the district when such district is comprised of one county or less, there shall be filed with the county clerk of such county, nomination petitions, signed by a number of enrolled voters who are enrolled in the party enrollment of said party in said district for secretary of State at the last preceding November election and in the case of a district office, in a district comprising more than one county, to obtain the printing of the name of any candidate of any political party upon the primary election ballots of such political party in the various voting precincts of said district, there shall be filed with the secretary of State, nomination petitions, signed by a number of the enrolled voters residing in such district and who are enrolled in the party enrollment of said party, equal to not less than two per centum nor more than four per centum of the number of votes that the party cast therein for secretary of State at the last preceding November election.”

Section 27 provides:

“To obtain the printing of the name of any candidate of any political party for a county office upon the official primary election ballots of such political party in the various voting precincts of a county there shall be filed with the county clerk of said county nomination petitions signed by a number of enrolled voters, who are enrolled in the party enrollment of said party and who reside in the county, equal to not less than two per centum nor more than four per centum of the number of votes that such political party cast in such county for secretary of State at the last preceding November election. * * * All of said nomination petitions may be signed by enrolled voters of the particular political party residing in any part of a ward for a ward office, in any part of a city for a general city office, or any part of a county for a county office, or any part of a district for a district office, or any part of the State for a State office: Provided, that in cities or counties of two hundred fifty thousand population or more, in lieu of the above petition, a petition therefor, signed by the candidate, which shall state the name of the candidate, his residence, street, house number and the political party of which he is a member and the office sought, shall be filed with the clerk of the county or city where said candidate resides, as herein provided. Such candidate shall, at the time, pay to the clerk of the city or county, as the case may be, a sum of money equal to one-half of one per centum of the salary and fees of the preceding year of such office, the amount thereof to be ascertained or estimated as nearly as maybe by such clerk; and upon complying with the above provisions such candidate’s name shall be printed upon the primary ballot, if otherwise qualified.”

From the foregoing provisions we may infer that the date of the first Wednesday in March was intended to be fixed for primaries for nominating circuit judges throughout the State, or, as counsel contend, that such date applies only to the counties where by vote of the electors the office of circuit judge was brought within the primary law, in which case no date was fixed for nominating circuit judges in the county of Wayne.

Again, section 26 clearly requires that those desiring office in a district comprising more than one county must file their petitions with the secretary of State, and their petitions must be signed by the prescribed number of voters; otherwise the petitioner’s name cannot be printed on the ballot. We think this section does not sustain respondent’s contention as to the circuit judges or county officers in the county of Wayne, which county contains more than 250,000 inhabitants, by reason of the quotations from section 27, which clearly apply not only to county officers but to officers of a judicial district wholly within such county. This permits a filing with the county clerk, and upon the petition of the candidate.

In our opinion section 15 may reasonably be construed to fix the date for primary election for circuit judges throughout the State as the first Wednesday in March. If not, provision is made for only a portion of the counties. We must assume that the legislature would not fix different dates, as the act obviously was intended to bring primary rules to uniformity throughout the State.

Section 44 provides that the nomination of party candidates for county offices shall be governed so far as applicable by the provisions of this act, relative to the nomination of party candidates for district offices. The only district candidate provided for who is elected in April is the circuit judge, and the date is fixed. Section 44 fixes the same date for county offices. This in express terms applies to all counties which shall decide to select candidates by primaries, and, under the same construction given herein to section 15, applies to every county that has or may hereafter have primaries.

We think the general act covers all questions raised, and the local act therefore needs no discussion.

The proceeding asks for a mandamus requiring the county clerk to file relator’s petitions for the offices of circuit judge and county auditor, respectively.

The writ is granted as to both.

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


text:
    ATTORNEY GENERAL, ex rel. SELBY, v. MACDONALD.
    1. Constitutional Law — Public Officers —Tests—Words and Phrases.
    No test forbidden by section 2, Art. 16, Const, of 1909, is imposed by a statutory requirement that members of a municipal charter commission shall have a residence of three years in the municipality (Act No. 279, Pub. Acts 1909), such requirement being merely a special qualification.
    2. Quo Warranto — Discretionary Character of Writ.
    In the case of an alleged intrusion upon an office, the court has discretion in quo warranto to proceed to judgment or not, according as the public interests do or do not require it, and will not do so where no good end will be subserved.
    Information in the nature of quo warranto by Franz C. Kuhn, attorney general, on the relation of Guy W. Selby and others, against Bruce J. Macdonald to determine respondent’s right to the office of member of the Flint charter commission.
    Submitted February 21, 1911.
    (Calendar No. 24,466.)
    Information dismissed February 24, 1911.

      Franz C. Kuhn, Attorney General (Homer J. McBride, of counsel), for relators.

      Edward Cahill and Brennan, Cook & Otundry, for respondent.
   Stone, J.

This proceeding in the nature of quo warranto was instituted by the mayor, Guy W. Selby, and Joshua C. Cole, George F. Caldwell, Frederick Behrendt, Theodore S. Chaplin, George H. Gordon, Henry Mc-Parland, George E. Norwood, William E. Sear, Frank T. Hall, Louis P. Church, John Wildanger, Jr., and Charles E. Wood, aldermen of the city of Flint, filing an information for the purpose of testing the title of Bruce J. Macdonald to the office of member of the charter commission of said city.

The question of general charter revision of the special charter of the city of Flint was submitted to the electors of said city under the provisions of Act No. 279 of the Public Acts of Michigan for 1909, being an act entitled “An act to provide for the incorporation of cities, and for changing their boundaries,” April 4, 1910, at the annual municipal election, and was carried by more than a majority of the electors present and voting thereon at such election, as shown by the returns canvassed by the common council of said city. Candidates were nominated for the offices of the members of charter commission at the September primary following, held Tuesday, September 6, 1910, and elected at the general November election, held Tuesday, November 8, 1910. There were nine persons elected, one elector from each of the six wards of the city and three at large. All persons elected, previous to their election, had a residence of three years in the city. The members of the charter commission thus selected qualified and commenced the performance of their duties November 22, 1910.

There is no claim but that the provisions of Act No. 279 aforesaid have been complied with in respect to the method therein designated for the nomination and election of the members of the charter revision commission, and that said members have qualified and are performing duties thereunder.

Relators contend that the act under which the city of Flint decided to revise its charter, being Act No. 279 aforesaid, is unconstitutional and invalid for the reason that section 18 of said act, among other things, provides that to be eligible to the office of member of the charter commission an elector must have a residence of at least three years in the municipality; that such provision prevents the electorate of the city of Flint from voting for whomsoever of the qualified electors they may desire for such office, in that no person not having a residence of three years in the city is entitled to hold the office or position under the provisions of said act; that it adds a test not contained in, and not authorized by, the Constitution of the State, on account of which the act is unconstitutional and invalid. Section 18 of Act No. 279 is as follows:

“Sec. 18. Any city desiring to revise its charter shall do so in the following manner, unless otherwise provided by charter: When its legislative body shall by a two-thirds vote of the members elect declare for a general revision of the charter, when an initiatory petition shall be presented therefor as provided in section twenty-five of this act, the question of having a general charter revision shall be submitted to the electors for adoption or rejection at the next municipal election, in case the electors shall, by a majority vote, declare in favor of such revision a charter commission shall be selected consisting of one elector from each ward and three electors at large, having a residence of at least three years in the municipality; no city officer or employe whether elected or appointed shall be eligible to a place upon said commission; the names of all candidates who have been duly nominated as hereinafter provided shall be placed upon a separate ballot at the election designated to be held for the election of a charter- commission and without their party affiliations designated; the candidate having the greatest number of votes in each ward shall be declared elected; and the three candidates at large having the greatest number of votes cast in the city shall be declared elected; the nomination and election of the members of such commission except as herein specified, shall be conducted as near as may be as now provided by law for the nomination and election of city and ward officers in the respective cities of this State.”

The part of the Constitution claimed to have been violated is section 2 of article 16, Const, of 1909, which is as follows:

“Seo. 2. Members of the legislature and all officers, executive and judicial, except such officers as may, by law, be exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation:
“ ‘ I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of this State, and that I will faithfully discharge the duties of the office of...... according to the best of my ability.’
“No other oath, declaration or test shall be required as a qualification for any office or public trust.”

Conceding that the position of member of the charter commission created by said act is an office or public trust, we pass to consider the question: Is the provision contained in Act No. 279, requiring each elector elected to the office to have a residence in the municipality of at least three years, a “test” not authorized by the Constitution to be imposed as a qualification for any office or public trust ?

Respondent and his associates have been elected, and they have qualified and are discharging the duties of their offices. It is not claimed that they do not possess the requisite qualifications for the office, or that any other persons have been elected in their stead. The claim is that a “test” has been applied in their selection, which is prohibited by the Constitution of this State, in that they are thereby required to be residents of the city for three years. In our opinion this is not a “ test,” as that word is used in the Constitution, but is rather a special qualification. Attorney General v. Detroit Common Council, 58 Mich. 213 (24 N. W. 887, 55 Am. Rep. 675). Special qualifications have frequently been required by statute for certain offices. Prosecuting attorneys and circuit court commissioners must be members of the bar. People v. May, 3 Mich. 598. Certain conditions may be attached to an office which are not “ tests ” within the meaning of the Constitution. For instance, by statute, sheriffs and county treasurers cannot hold their offices for more than two consecutive terms. Numerous statutes in this State prescribe residence in the city, township, or county as a qualification to the holding of offices in such municipalities. These in our opinion are not “ tests ” within the meaning of the Constitution.

In the case of Barker v. People, 20 Johns. (N. Y.) at page 461, the court made use of the following language:

“As to the oath of office prescribed by the sixth article and the provision that no other oath, declaration, or test shall be required, it is contended that the word “ test ” has a most extensive meaning, and prohibits the establishing of any other rule by which the capacity of a person to hold an office shall be determined, than that defined, the oath of the person appointed or elected. I cannot accede to this. In my judgment the exclusion of any other oath, declaration, or test, as a qualification for an office or public trust, means only that no other oath of office shall be required. It was intended to abolish the oath of allegiance and abjuration or any political or religious test as a qualification. The provision that no other oath is to be required as a test imports nothing with respect to the other qualifications. In the case of a person elected a senator or a governor, the oath has no reference to the qualifications required, and they may be inquired into by some other tribunal. If an alien should be elected, he can well take the oath; but surely, the question whether he could hold the office would be open to inquiry.”

This office having been created by statute, and existing under the statute, and no claim being made that the respondents do not possess sufficient qualifications, it is urged that the case might be disposed of upon the ground that the relators are not in position to raise the question. It does not appear that any citizen otherwise qualified was a candidate for commissioner and was barred from having his name on the ticket by reason of the three years’ residence provision.

In the case of an alleged intrusion upon an office, the court has discretion to proceed to judgment or not, according as the public interests do or do not require it, and will not do so where no good end will be subserved by it. Vrooman v. Michie, 69 Mich. 44 (36 N. W. 749); People v. Nappa, 80 Mich. 484 (45 N. W. 355); Lamoreaux v. Attorney General, 89 Mich. 146 (50 N. W. 812).

But as we have considered this matter upon its merits, and as it is one of public interest, we will dispose of it upon its merits, and we hold that the statute in question does not impose any “other oath, declaration or test” than that prescribed by the Constitution.

The relief prayed for will therefore be denied, and the information dismissed, and without costs.

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


author: McAlvay, J.

text:
    LEWIS v. BOARD OF SUPERVISORS OF MONTMORENCY COUNTY.
    1. Intoxicating Liquors — Local Option — Petition — Withdrawal op Signatures.
    Petitioners for the submission to an election of the question of prohibition under the local-option law may not withdraw their names from petitions after copies have been posted. 2 Comp. Laws, §§ 5414-5417; Act No. 183, Pub. Acts 1899.
    2. M andamus — Answer—Conclusiveness—Record.
    In mandamus to compel a county board of supervisors to submit the question of prohibition to an election, the answer of respondent board contradicting its own record and proceedings may not be taken as true.
    3. Same — Question op Fact — Issues Framed.
    No issue need be framed upon respondent’s attempt to contradict its own record and proceedings.
    Certiorari to Montmorency; Emerick, J.
    Submitted February 20, 1911.
    (Calendar No. 24,439.)
    Decided March 13, 1911.

      Mandamus by Thomas E. Lewis and 320 electors of Montmorency county against the board of supervisors thereof, to require them to reconvene and determine whether the question of prohibiting the liquor traffic should be submitted to the electors. From an order granting the writ, respondent brings certiorari.
    Affirmed.

      Pliny W. Marsh, for relator.

      J. H. Cobh, for respondent.
   McAlvay, J.

Respondent, by a writ of certiorari, reviews and asks a reversal of an order of the circuit court of Montmorency county granting relator a writ of mandamus to compel respondent board to reconvene and submit the question of the prohibition of the manufacture and sale of intoxicating liquor to an election in said county, under the local-option law. The printed record of the proceedings had before the board of supervisors, as presented to the circuit court, is very deficient and unsatisfactory, for which there is no explanation, although attention was directed to it by the brief of appellee. All of the exhibits which were a part of the petition for mandamus were copies of the records of respondent board, and upon which was based the action of the board in refusing to submit the question to an election, were omitted, and without an examination and consideration of them this court could not know what was passed upon by the trial court. These exhibits were printed by relator in an appendix to his brief and we find by a comparison with the certified return to the writ of certiorari that they are correct copies.

We find but one question was presented to the board of supervisors and passed upon which relator claims was illegally determined. This was in allowing the withdrawal of the names of 46 persons from the petitions presented, thereby reducing the number below that required by law to entitle petitioners to have the question submitted at the next election. We have examined the certified records of the respondent board which were before the trial court, and find that such records show that the withdrawals by signers were all made after the posting of the petitions, and the claim made by counsel for respondent in his brief that they were made before posting is not supported by the record. Signers to these petitions cannot withdraw their names after copies of the petitions have been posted. Rutledge v. Board of Supervisors, 160 Mich. 22 (124 N. W. 945).

It is urged that the answer of a respondent in mandamus must be taken as true, no issues having been framed. This rule cannot be invoked in this case. The facts appear upon the face of the record and proceedings which were under consideration. No necessity arises for framing an issue under such circumstances. Why an attempt was made by respondent board to contradict its official record is not apparent.

The order of the circuit court is affirmed, and the respondent board is ordered to reconvene on March 14,1911, at ten o’clock a. m. for the purpose of performing the duty ordered and adjudged to be done by the order and judgment of the circuit court.

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


text:
    ABBOTT v. JONES.
    1. Witnesses — Matters Equally Within Knowledge oe Deceased-Estates of Decedents — Partnership—Husband and Wife.
    In a suit against the devisee and estate of a deceased partner, by a surviving member of the firm, to enforce an equitable interest in real estate purchased by decedent in his own name, the wife of the surviving partner, having an interest in the subject-matter, may not testify as to matters equally within the knowledge of deceased. 3 Comp. Laws, § 10313.
    3. Laches-Equity — Partnership.
    Delay of over 16 years after the dissolution of a copartnership bars the claim of an equitable interest in real property bought by and in the name of a deceased partner, who, before his death, transferred it to himself and wife as tenants by the entirety.
    3. Partnership — Fraud—Equity.
    Evidence that complainant and his partner continued in business for over 30 years, living in the same house, paying mutual expenses out of partnership business, that complainant married a member of the deceased partner’s family, and that the state of the partnership accounts could not be determined from the records, and that improvements to real estate owned by decedent were not made with partnership funds, the proofs being insufficient to show that the property was purchased by him on the partnership account, does not sustain a decree setting aside an estate by the entirety claimed by his wife.
    Appeal from Barry; Smith, J.
    Submitted November 17, 1910.
    (Docket No. 23.)

    Decided March 13, 1911.
    Bill by Milford O. Abbott against Mary E. Jones, personally and as administratrix of the estate of Allen Jones, deceased, to establish an interest in real property. From a decree for complainant, defendant appeals.
    Reversed and bill dismissed.

      Thomas Sullivan {Frost & Farrell, of counsel), for appellant.

      Oolgrove & Potter, for appellee.
   McAlvay, J.

Complainant and Allen Jones, deceased, entered into copartnership under the firm name of A. Jones & Co., at Hastings, Barry county, in 1879, for the purpose of dealing in flour and feed, and buying hides and furs. The record does not show the amount invested by the partners. That same year complainant married a young woman who was a relative of decedent’s first wife and had been brought up in his family. After this marriage the two families lived together in decedent’s house during all the years the copartnership continued, and the expenses of the housekeeping were paid from the funds of the firm. At that time (1879) decedent owned real estate in Hastings which the record shows had been purchased by his wife in 1865 for $1,200, and in 1871 had been deeded by her to him for a consideration of $2,000; On this property were two stores, one of which was occupied by the firm from its formation until May 15, 1892, when the partnership sold out this business to a Mr. Williams, who paid for it $1,200. One year later, on May 22, 1893, complainant bought this business back from Williams for about $100, and conducted the business alone for two years and a half, when he entered into copartnership with his brother, and this firm occupied the same store and regularly paid rent to Allen Jones up to the time of his death, which occurred May 24, 1908, and until the time of bringing this suit. In addition to the property owned by Allen Jones at the time he entered into copartnership with complainant, he acquired title to other real estate during the continuance of the business, upon which buildings were erected, and extensions and repairs were also made upon the premises theretofore owned by him. Allen Jones’ first wife died in 1892. He married defendant Mary E. Jones in 1893, and lived with her until his death. No children were born of the second marriage, and but one, which died at an early age, was born of the first marriage. In July, 1904, Allen Jones consulted his attorney relative to arranging his property affairs either by will or by deeds, which resulted in the creation of an estate in joint tenancy in himself and wife by joining with her in a transfer of his real estate to a third person, who at once deeded to him and his wife as joint tenants. Real estate of the value of $1,200 was not included in this transfer, and the expenses of administration and any debts he might owe at his death were to be paid with this reserve. These deeds were recorded May 29, 1908.

Complainant filed his bill of complaint in this cause in April, 1909, setting forth that this copartnership had been a profitable one and no settlement had ever been made between the copartners; that the deceased partner had purchased certain real estate with partnership funds in his own name, and used large amounts of such funds in putting buildings and repairs on other real estate; that Allen Jones-owned but little property when they began business together, and that he was in poor health, able to do but little about the business; that his wife was sick for a long time and was cared for by complainant’s wife; that complainant did most of the work in and about the business. He alleges that it was agreed between'him and decedent—

“And made a part of the consideration of said copartnership that the said property which was bought by the said co-partnership assets and profits should at the death of said Allen Jones become the property of your orator absolutely.”

He states further that after the copartnership business ceased, his partner promised that all of his property would belong to him. He prays for a settlement and an accounting with the estate and Mrs. Jones and for a receiver; that the deeds through which Mrs. Jones claims be set aside; that the estate of Allen Jones, and its representative, Mrs. Jones, may be decreed and compelled to carry out and perform the contract between the partners, and for general relief. Defendant, Mary E. Jones, personally and as administratrix, filed separate answers denying all the material allegations of the bill and invoking the statute of limitations, and section 9509, 3 Comp. Laws, and section 8835, 3 Comp. Laws, and laches, as a complete bar and defense to any claim of complainant. A decree was entered by the court granting complainant substantially the relief prayed.

Defendant who has appealed to this court contends that upon this record the complainant was not entitled to any relief.

The bill of complaint is framed upon the theory that a contract existed between complainant and Allen Jones “as a part of the consideration of the copartnership, that all property bought by the copartnership assets and profits should at the death of Allen Jones become the property of complainant absolutely.” Because of later verbal agreements claimed to have been made with Allen Jones, complainant also contends that real estate owned by him prior to the partnership should be decreed to him, presumably in consideration of additions and repairs put upon such property with partnership funds. No contract of co-partnership was ever entered into in writing, nor is it claimed that any of decedent’s promises and agreements were in writing. This large record discloses that both complainant and his wife were, over objection of defendant, permitted to testify at great length relative to matters without question equally within the knowledge of the deceased partner, upon the most material and the controlling facts in the case. It will not require the citation of our former decisions to support the statement that upon such matters the complainant was not a competent witness, by reason of the prohibition of section 10212, 3 Comp. Laws.

This court has also held that under the same statute the wife of complainant in cases of this kind, where she has a direct interest in the subject-matter of the litigation, is not a competent witness to testify, by reason of such interest, and “her testimony must be excluded from consideration.” Laird v. Laird, 115 Mich. 352 (73 N. W. 382), and cases cited; Chaddock v. Chaddock, 134 Mich. 48 (95 N. W. 972). The exclusion of this incompetent testimony removes from the case all evidence of the contract sought to be enforced; and all evidence that there was not a final settlement of the partnership affairs at or about the time the business was sold out. Excluding their incompetent testimony, there remains little if any proof in the case to sustain the material allegations of the bill of complaint.

It is undisputed that this partnership was entered into in 1879 and the entire business sold to Williams in 1892, that it was bought back by complainant ■ in 1893, that afterwards he took his brother into partnership which has since continued, and rent has been paid by the firm for the store to decedent for all the years since. From May, 1892, when the business was sold, to the death of Allen Jones in May, 1908 — a period of 16 years — no proceedings were taken by complainant to enforce any claim against his partner. This, therefore, is a stale claim.

There is no fraud or deceit shown on the part of Allen Jones nor upon the part of his surviving widow. The proofs absolutely fail to show any improper conduct on her part relative to the transfers which made the husband and wife joint tenants in his estate, from which at the time he took good care to reserve enough to pay all his liabilities. We do not find in the character or conduct of this widow anything which warrants any criticism. Her advent into the family was clearly not welcomed by complainant’s wife, who, after a short time, refused to speak to her and moved out of decedent’s house where the two families had always lived together. Complainant’s wife was not the daughter of Allen Jones and his first wife, and had not been adopted by them; but having been brought up in the family, she undoubtedly expected part of the estate. There is testimony of competent witnesses of statements made by Allen Jones relative to the disposition he had made or intended to make of his estate by will to complainant and members of his family and to his own relatives. There is no other proof relative to a will, and it appears without contradiction that he disposed of his estate, except a small amount, by deeds as above recited. The competent proof on complainant’s part does not show that the real estate acquired by Allen Jones after the partnership was formed, the buildings erected thereon, and the additions and repairs put upon his property owned prior to the partnership, were purchased, erected, and made with partnership funds and under the agreements relied upon.

The books which were introduced in evidence are very unsatisfactory, and, with complainant’s testimony in regard to them stricken out, do not sustain complainant’s contention. They were not a regular set of books, nor did they cover the entire period of the business. They contain no inventories or accounts between the partners, and from what they show in this record the state of the partners’ accounts cannot be determined. These books do not show that this was an extensive and profitable business. There is evidence in the record showing that Allen Jones, after the sale of the partnership business, made extensive repairs and improvements upon his real estate and borrowed money in considerable amounts during that time. This condition of his affairs does not tend to support or establish complainant’s theory.

The proofs in the case do not sustain the allegations of the bill, and do not entitle complainant to any relief. The decree of the circuit court is reversed and set aside, and a decree will be entered in this court against complainant and in favor of defendant, Mary E. Jones, personally and as administratrix of the estate of Allen Jones, deceased, dismissing the bill of complaint, with costs of both courts against complainant.

Bird, Brooke, Blair, and Stone, JJ., concurred.


text:
    MEYERING v. WAYNE CIRCUIT JUDGE.
    Judgment — Mandamus—Adequacy of Writ of Error.
    The correction of a record of judgment, entered on plaintiff’s consent to withdraw a juror, the record showing erroneously that plaintiff discontinued the cause, may be made on writ of error, which is the proper remedy to review a final judgment, and mandamus will not lie to compel such correction.
    Mandamus by John H. Meyering and J. Ralph Meyering against James O. Murfin, one of the circuit judges for the county of Wayne, to compel the correction of a judgment' entry.
    Submitted October 25, 1910.
    (Calendar No. 24,269.)
    Writ denied March 13, 1911.

      Jefferson G. Thurber, for relators.

      A. G. Pitts, for respondent.
   Stone, J.

Relators, who were plaintiffs in the court below, instituted a suit in justice’s court to recover certain commissions on the sale of real estate. From a judgment for the plaintiffs the defendants appealed to the circuit court; The case came on for hearing before the circuit judge with a jury on April 21, 1910. Immediately after the plaintiffs opened their case, a colloquy occurred between the circuit judge and plaintiffs’ counsel as to the sufficiency of the declaration, the circuit judge holding that the declaration was insufficient and that the plaintiffs could not amend, it being an appeal case. The following language was used:

The Court: If you prefer to discontinue I will permit you to withdraw a juror and discontinue. If you should go on I shall be compelled to direct a verdict against you

To which the plaintiffs below, the relators- here, by their counsel, responded:

“ Under the circumstances, I will take the only course, and that is permission to withdraw a juror.
The Court (to the clerk): Make an entry that a juror is withdrawn and plaintiff discontinues his case in open court.”

And thereupon the journal entry shows the impaneling and swearing of the jury, their sitting together and hearing the opening of counsel and the testimony in part:

“Whereupon the court allowed plaintiffs’ attorney to withdraw a juror and the case was discontinued in open court, and the jury discharged from further consideration of the ease.”

Subsequently plaintiffs’ attorney made a motion to amend their declaration, and for an order granting a new trial, and for the setting of said cause down for immediate hearing. This motion was denied on May 7. On May 28, 1910, a further order was entered allowing the plaintiffs 20 days to move for a new trial, and 60 days to settle bill of exceptions after entry of judgment. Subsequently a motion was made for the correction of the record, which motion was denied on July 9, 1910, and to which ruling plaintiffs’ counsel excepted. Petition for mandamus was filed praying that the circuit judge be commanded to correct the record in said cause, so as to show that the plaintiffs therein had simply withdrawn a juror and had not discontinued their cause of action. Upon this petition an order to show cause was made, and the respondent has answered, setting forth the proceedings as above related in substance.

It is very clear to us that the order entered by the circuit judge amounted to a final judgment. If it was consented to by relators they have no remedy. If it shall turn out that they did not consent to the judgment, relators have an adequate remedy by writ of error, the order or judgment being final, and reviewable upon error under the repeated decisions of this court. We cite the following in support of this conclusion: Haney v. Muskegon Circuit Judge, 101 Mich. 392 (59 N. W. 662); Reed v. St. Clair Circuit Judge, 122 Mich. 153 (80 N. W. 985); Steel v. Clinton Circuit Judge, 133 Mich. 695 (95 N. W. 993); Blackburn v. Alpena Circuit Judge, 136 Mich. 48 (98 N. W. 754); Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1); Hartz v. Wayne Circuit Judge, ante, 31 (129 N. W. 15), and cases there cited.

The writ is therefore denied.

Ostrander, O. J., and Bird, Hooker, and Moore, JJ., concurred.


author: Blair, J.

text:
    TYLER v. WRIGHT.
    1. Adverse Possession — Presumptions—Parent and Child.
    Possession by the father of realty belonging to children who are of age and on unfriendly .terms with their father, is not presumed to be in subordination to their title.
    2. Same — Evidence—Self-Serving Declarations — Wills.
    Although self-serving declarations contained in a will are not competent evidence to support testator’s title to real property by adverse possession, Other statements contained in the instrument apparently disparaging his title must be construed in connection with the more favorable ones and with the fact that he assumed to have title by attempting to devise the property.
    3. Evidence — Wills—Recitals.
    Recitals of a will conveying realty, made subsequently to a life lease of the property, cannot affect the title of the life tenant.
    4. Adverse Possession — Hostile Character — Trial.
    Where a father occupied a store building and lot, for more than fifteen years after the death of his wife who had owned the property, and whose children obtained title by descent at her decease, being of full age and married, and where the father built at his own expense a building on the premises, and after his wife’s death attempted to convey the property by.a life lease, and to dispose of it by his will, it was a question of fact whether his occupancy was adverse.
    .Error to Berrien; Coolidge, J.
    Submitted January 6, 1911.
    (Docket No. 42.)
    Decided March 13, 1911.
    Ejectment by Ida N. Tyler, against Addie Wright, Louis Pector, and Jacob Goodman: A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.
    Reversed.

      William O. Hicks, for appellants.

      Gore & Harvey, for appellee.
   Blair, J.

This is an action of ejectment to recover the possession of “ that part of lot 6, block 23, of the original plat of the village (now city) of Benton Harbor, Berrien county, Mich., described as commencing at the northeast corner of said lot 6, running thence westerly along Main street 18 feet; thence southerly 66 feet, to a point which is 18 feet from the easterly line of said lot 6; thence easterly to a point on the easterly line of said lot 6, which is 66 feet from the northeast corner of said lot 6; thence northerly on said line of said lot 6, to the place of beginning.” It is conceded that plaintiff is the owner of the record title. Defendant Addie Wright claims under a life lease from John Thomas, Sr., the validity of which depends upon title claimed to have been acquired by him by adverse possession. The other defendants are her tenants.

In 1863 John Thomas, Sr., then the owner of the premises in question, conveyed them, through an intermediary, to his wife, Catherine I. Thomas. In 1880 Mrs. Thomas signed and handed to her husband a deed to her daughter, Catherine Sullivan, which was afterwards ordered canceled by this court. The facts with reference to this deed are fully stated in Thomas v. Sullivan, 138 Mich. 265 (101 N. W. 528). Catherine I. Thomas died in September, 1885, leaving, surviving her, her said husband, their said daughter and their son, John. Prior to his wife’s death, Mr. Thomas erected, at his own expense, a store building 19 feet 6 inches front by 66 feet in depth, 18 feet of which covered the premises on lot 6 described in the declaration, the remaining 1 foot and 6 inches being on lot 5. This 1 foot 6 inches, covering the east wall of the store building and 12 inches inside, was deeded by Mr. Thomas to the defendant Wright July 13, 1900. On February 9, 1901, Mr. Thomas executed and delivered to the defendant Wright a life lease of the premises described in the declaration. On April. 10, 1901, he executed his will, which was duly probated, devising the land in question—

“To my two children, John Thomas, now of Coloma, county and State aforesaid, and Catherine Sullivan, of St. Joseph, same county and State, share and share alike. This accords with the will of my wife, Catherine I. Thomas, made verbally to myself, that whereas my son had forced me out of the tanning business, to the detriment of my business as a whole, and in disregard of any duty he might owe to parents, a deed was made and given into my keeping, with the injunction of a mother’s love that should my son do better the deed should be destroyed and both children share alike.
“ After this I built the store upon a portion of lot 5 at my own cost and expenses, which said portion of lot 5, with all appurtenances, I have since sold in consequence of my daughter’s refusal to assist when in need.
“ I do further give and bequeath unto Addie Wright, who has been my housekeeper, clerk in the store and general business manager for the past fifteen years, all the personal property, notes, book accounts, moneys, shop fixtures, furniture, tools, utensils, and machinery, which may be left after paying my just debts and plain funeral expenses, with all of which she is cognizant and best qualified to settle to her use and ownership forever.”

Mr. Thomas died on the 15th day of August, 1901. At the time of their mother’s death, the children were of age and married. From the time of his wife’s death to his own decease, Mr. Thomas made repairs, paid taxes, and used and controlled the premises, paying no rent therefor, and defendant Wright continued in possession after his death. After the store building was constructed by Mr. Thomas, he and his wife lived in rooms above the store, and he carried on business in the store and controlled and treated the property substantially the same as he did after his wife’s death. The circuit judge directed a verdict for plaintiff, and defendants bring the case to this court for review upon writ of error.

We are of the opinion that the circuit judge erred in refusing to submit the question of title by adverse possession to the jury. Ordinarily the character of the possession in such cases is a question for the jury. Undoubtedly the close relationship of parent and children has an important bearing in determining whether the possession of the father of the lands of his children is adverse or subordinate to their title, and, in the absence of a contrary showing, particularly in the case of minor children, may raise a conclusive presumption of possession in subordination to their title and for their benefit. 1 Am. & Eng. Enc. Law (2d Ed.), p. 821; 1 Cyc. p. 1050; Silva v. Wimpenney, 136 Mass. 253; Allen v. Allen, 58 Wis. 202 (16 N. W. 610). In the present case the children were of full age, married, with homes of their own, and there is no evidence that they were even on friendly terms with their father. On the contrary, if the will is to be regarded as competent evidence, their relations seem to have been unfriendly. We do not think that the mere relationship under the facts of this case raises any conclusive presumption that the father’s possession was in subordination to the title of the daughter and son. Plaintiff’s counsel contend, however—

“ That the attempted delivery of the deed to Catherine I. Sullivan by John Thomas, Sr., as described on page 34 of the record, was a recognition by him that he did not hold the title. By this act he recognized that the title was in Catherine I. Thomas at the time of her death, and that by her deed, and her deed alone, could the property be transferred, and that he himself had no right or power to convey title.
“‘The possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other until such occupant has changed the character of his possession.’ 1 Cyc. p. 1033.
“In this connection we contend that the conduct of John Thomas, Sr., in attempting to deliver said deed to Catherine I. Sullivan, was a disblaimer of title, ‘and, where the occupant of land expressly disclaims title in himself, he oannot acquire title by adverse possession.’ 1 Cyc. p. 1029.”

In support of this contention, the testimony of defendant Wright is cited as follows:

“Q. You were a witness in the trial of John Thomas, Jr., v. Catherine Sullivan, were you not?
“A. I think, if I remember right, I was.
“Q. At that time in regard to this deed did you not testify as follows:
‘Q. Will you tell us who brought the deed in ?
‘A. John Thomas, Sr.
‘Q. Tell us what was done, what was said there at that time.
“‘A. I think that at that time he asked Mr. Hicks if the deed would hold water. And I think Mr. Hicks made the statement that the deed was all right, it was a genuine warranty deed; and Mr. Thomas I think made a statement of some little affairs that I couldn’t just remember or repeat the whole conversation, and he said that that property after his death went to Mrs. Sullivan, and, if I remember right, Mr. Hicks took the deed, read it, and handed it to Mrs. Sullivan, and she read the deed.’
“Q. Did you not so testify ?
“A. I think probably I did.”

This transaction occurred in 1893 or 1894, and counsel claim “was sufficient to justify the court in holding that John Thomas, Sr., did not hold the land adversely. But in the will of John Thomas, Sr., we find a positive allegation that this deed was of force and effect.” If Mr. Thomas informed Mrs. Sullivan that the property went to her after his death, this would, at least, admit of the inference that he claimed the right to hold it until that time, and the statement relative to the deed is to be considered in connection with the fact that he was assuming to dispose of the property by the will. While self-serving statements in support of his title or his assuming the right to dispose of the property would not be competent evidence in support of his title, still statements in the will claimed to be in disparagement of his title must be construed with reference to the whole will, the fact that he assumed the right to make it, and that he must have known that the deed had been held invalid by this court. So construed, we do not think the statement in the will is necessarily conclusive of his recognition of the title of his children. Moreover, the will was made two months after the alleged life lease to defendant Wright, and its recitals were not competent as against her title. Immediately upon the death of Mrs. Thomas, title to this property vested in the son and daughter, and a right of action accrued to them to enforce their right to possession. Patterson v. Dryer, 98 Mich. 564 (57 N. W. 814); Ward v. Nestell, 113 Mich. 185 (71 N. W. 593). Unless Mr. Thomas occupied the premises in subordination to, and in recognition of, their title, he acquired the title by adverse possession, and defendants were entitled to a verdict. Whether his occupation was hostile or subordinate was, in our opinion, a question of fact for the jury.

The judgment is reversed, and a new trial granted.

Ostrander, C. J., and Bird, Hooker, and Stone, JJ., concurred.


text:
    GOLDMAN v. O’HARA.
    1. Partnership — Presumptions — Evidence of Share of Partners.
    Partners are presumed, in the absence of any showing of their respective shares, to have equal interests.
    2. Same.
    Conflicting evidence that partners held different shares of the joint venture is considered and held, to sustain a finding that complainant was entitled to one-half the profits.
    3. Same — Fiduciary Relations — Implied Trust.
    Where a corporation made an alleged sale of its interest in certain contracts for the sale of machinery, to one of the partners, an officer of the company, in consideration of the amount due on the contracts and of an additional bonus, and handled the financial arrangements arising out of the transaction and kept records thereof on its books, and eventually sold the machinery at a profit to the copartnership, it stood in fiduciary relations to the copartners as to profits made and retained by it.
    4. Same — Agency.
    One of the partners as agent of the firm had authority to make the agreement to pay the bonus, whether he so agreed before or after the formation of the copartnership.
    Appeal from Wayne; Mandell, J.
    Submitted January 10, 1911.
    (Docket No. 60.)
    Decided March 13, 1911.
    Bill by Hyman L. Goldman against Charles J. O’Hara and the C. C. Wormer Machinery Company, for an accounting. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Moore & Moore, for appellants.,

      Henry C. Walters, for appellee.
   Stone, J.

This is a suit in equity for an accounting brought by complainant against Charles J. O’Hara and the C. C. Wormer Machinery Company growing out of an alleged special verbal partnership transaction entered into about March 17, 1906, involving the purchase and sale of the plant of the Auto Brass & Aluminum Company of Flint, a bankrupt.

The complainant seeks to charge the defendant O’Hara in the sum of $2,158.88 (being $1,886.37 and interest), that being a one-half interest in the profits, as complainant claims, of the alleged partnership transaction entered into and completed between the said complainant and defendant O’Hara. The complainant also seeks to charge the defendant C. C. Wormer Machinery Company, as a constructive trustee of the said amount; it having been the recipient of that amount of money out of the proceeds of the partnership transaction, without his knowledge or consent. The defendant O’Hara claims that the agreement was to prorate the profits on the basis of the amount of the investment of each.

It appears that on March 1, 1906, the Auto Brass & Aluminum Company was adjudged a bankrupt, and the complainant was a creditor in the sum of $1,272. Among the assets of said bankrupt company was certain machinery purchased on contracts from the C. C. Wormer Machinery Company, in which the vendor reserved the title, until paid for, and upon which contracts there had been paid $3,507.72, leaving a balance due at the time of the adjudication in bankruptcy of $6,266.27 of principal. The said Wormer Company also proved up a claim against the bankrupt company of $4,970.95 for rental of the said machinery during the period of default in payments. However, the Wormer Company had not declared the contracts in default, and had not demanded the return of the machinery. Prior to the adjudication, and about February 28, 1906, there, had been a meeting oi the creditors of the Auto Brass & Aluminum Company at Flint, and Clarkson C. Wormer, president of the Wormer Company, attended that meeting. While in Flint Mr. Wormer gave an option on the Wormer Company interest, under the said contracts, to Mr. Goff of the Buick Company, to take over the same at the face of the indebtedness aforesaid ($6,266.27), and an additional $100 to cover expenses and attorney’s fees. The complainant testified that the next day after Mr. Wormer’s return from Flint, he (Wormer) offered to sell the Wormer Machinery Company’s contract rights for $6,000. This is virtually denied by Mr. Wormer in his testimony. During the time the option to Mr. Goff was in force, and in the early part of March, defendant O’Hara, who was treasurer of the said Wormer Company, claims to have made an offer to Mr. Wormer to give the Wormer Company the face value of its said contracts, pay attorney’s fees, and a bonus of $1,500 for the company’s rights under the contracts. Mr. Goff failed to exercise his option, and later, at a meeting of the directors of the Wormer Company held some time between the middle of March and the 1st of April, 1906, the offer of O’Hara was accepted. No record of this meeting was kept, and no writing of any kind passed between the parties until June 18th, when the Wormer Company assigned its contracts to O’Hara. No time was fixed for payment to the Wormer Company by O’Hara.

On March 17, 1906, at Flint, the trustee in bankruptcy held a sale of the plant of the Auto Brass & Aluminum Company, subject to the contract rights of the Wormer Company. Mr. O’Hara, representing the Wormer Company, and also the complainant, were present at the sale.

It is the claim of the complainant, that, just previous to the time of the sale, he and O’Hara entered into their verbal partnership arrangement to bid in the plant, buy up the claims of one or two of the largest creditors, and then hold the plant intact until a suitable purchaser could be found, and it could be sold to advantage; that O’Hara represented that he could arrange with the Wormer Company for its contracts; and that it was agreed between O’Hara and complainant that they should jointly bid in the plant, each contributing one-half of the purchase price, but the bid was to be made in O’Hara’s individual name; that it was understood that the proceeds of the sale by the partnership, when finally made, should be used, first, to pay the claims of the complainant and of the Wormer Company in full, at their face value — each partner was to receive back his share of the purchase price advanced, and the balance, after deducting expenses, was to be divided between the two parties as profit; that defendant O’Hara did not communicate to complainant that he, O’Hara, had agreed to give the Wormer Company a bonus of $1,500, and to pay its attorney’s fees. Complainant further claims that he understood that the Wormer Company was to receive only the face value of its claim under its contracts, being the amount remaining unpaid thereon. O’Hara bid in the plant for $4,200, and on March 22d, complainant drew a check for his half of the purchase price.

This sale of March 17th was enjoined by Judge Swan of the United States district court, on the application of the Wormer Company, which company asserted the right to detach, take down, and entirely remove all the machinery, appliances, and materials mentioned in the contracts above referred to. Judge Swan finally modified the original order, and ordered the sale to take place, subject to the contract rights of the Wormer Company, from which order the Wormer Company appealed to the circuit court of appeals. The. petition to the circuit court of appeals was sworn to by Clarkson C. Wormer, president, on March 29, 1906, and alleges error on the part of Judge Swan in refusing to permit the Wormer Company to repossess itself of the machinery and remove the same from the plant of the bankrupt. The second sale was held on March 30, 1906, at which the complainant hid in the plant in his own name, but under the partnership arrangement agreed upon at the former sale, whatever that may have been. The purchase price of $4,175 was paid by complainant to the trustee of the bankrupt by two checks.

On April 5th following, complainant received from defendant O’Hara, a Wormer Company note for $1,000, and a check for $1,087.50, being one-half of the said purchase price last mentioned. On April 6th complainant bought in the claim of the Great Western Smelting & Refining Works against the bankrupt company for $1,700. He received from defendant O’Hara, as his half of the purchase price of this claim, a Wormer Company note for $850, payable July 7, 1906. On May 27, 1906, complainant executed a bill of sale of the plant to the defendant O’Hara, who was assembling title for convenience of transfer. From time to time parts of the material and stock were sold, and on June 18th the Wormer Company formally assigned its contracts to defendant O’Hara, which assignment completed his title, and he executed a bill of sale for the entire plant, including the Wormer Company machinery, to C. H. Booth for the Peerless Heater & Valve Company for $18,000. This sale was brought about through the efforts of complainant. A part of the $18,000 was settled by notes signed by Booth and the Peerless Company, and indorsed by complainant, for the reason that O’Hara and the Wormer Company refused to accept the Booth notes, unless indorsed by complainant.

A few days thereafter, the complainant endeavored to have an accounting with defendant O’Hara in regard to the partnership profits. In fact, he called on O’Hara at the office of the Wormer Company a number of times every week for about 15 months, when he finally got a statement from O’Hara on August 19, 1907. This statement contained the charge of $1,500 as bonus. The complainant claims and testified that in and by this statement he first learned that O’Hara had agreed, or claimed to have agreed, to give the Wormer Company a bonus of $1,500 and pay certain attorney’s fees. The evidence shows that defendant O’Hara received all moneys on account of the partnership transactions and turned the same over to the Wormer Company; and all moneys paid out were paid through the Wormer Company office by notes or checks. Defendant O’Hara put all the transactions through the Wormer Company books under the heading of “C. J. O’Hara Flint Plant” account. On June 20, 1906, $1,500 was credited to the Wormer Company and charged to the “C. J. O’Hara Flint Plant” account.

At the hearing, testimony having been taken in open court, the circuit judge filed an opinion, and entered a decree against both defendants in favor of complainant for the sum of $2,158.88. From this decree the defendants have appealed.

The questions involved for our consideration are:

(1) The terms of the partnership agreement, with respect to the division of the profits of the enterprise between the two parties in interest, and this involves the total amount of the profits realized, and the portion of the profits still due complainant; it being conceded by defendant O’Hara that there is something due the complainant.
(2) The responsibility or liability of the C. C. Wormer Machinery Company to the partnership, and especially to the complainant, as the custodian of the partnership funds which, it is claimed, it knowingly permitted, through its officers, to be appropriated by its treasurer, defendant O’Hara, with full knowledge that complainant was claiming a part of the fund at the time of the appropriation.

As to the agreement, the circuit judge found that complainant and defendant O’Hara entered into a partnership agreement to advance, in equal amounts, the money necessary to purchase the plant of the Auto Brass & Aluminum Company and several claims against it, and that they were to share equally in the profits after payment was made to complainant for the full amount of his claim, and to the Wormer Company for the face value of its claim, not including the rental claim. Not only should we feel reluctant to change the finding of the circuit judge upon this question of fact, under the circumstances, but we have carefully read the record, and are satisfied that upon this subject the circuit judge reached the right conelusion. The evidence clearly preponderates in favor of the complainant upon this branch of the case. Not only is this true, but we are aided by a legal presumption. Partners are presumed, in the absence of any showing of their respective interests, to be equal partners. Northrup v. McGill, 27 Mich. 234.

We are, however, unable to agree with the circuit judge in his disposition of the claim of $1,500 charged up by the defendant O’Hara. By a clear preponderance of the evidence found in the testimony of the defendant O’Hara, the witnesses George Pulasky, O. C. Wormer, and Frederick F. Wormer, it appears that O’Hara undertook and agreed to pay the Wormer Company, over and above the face of its claim, the sum of $1,500, which may be termed a bonus, or claim made by it, upon condition of the sale of its interest in the machinery, on which it had a claim under its contracts with the bankrupt company. There is evidence tending to show that there was a great demand'for this machinery in the market, and that, although second hand, it was as good as new for all practical purposes. The company was in position to retake this machinery and dispose of it; but instead of doing that, it elected to take the face of its claim of $6,266.27 and interest, and $1,500. It had a right to make such a bargain, with O’Hara whether he was a real purchaser, or whether he was acting for it in the sale of the property. It had the right to name a sum for which it would assign its contracts. We cannot follow the circuit judge in the view which he took of the legal aspect of this matter. Whether the bargain was made between O’Hara and the Wormer Company before or after the copartnership agreement between complainant and O’Hara is not controlling. If before the partnership agreement, then O’Hara had a right to turn the property into the partnership concern at what it cost him. If such contract was made after the partnership was formed, then O’Hara was the agent of the partnership, and represented it in the agreement to pay. So, in either view of the case, we'think that the complainant. should he charged with one-half of the $1,500, and that amount should be deducted from the sum awarded to the complainant by the court below. In all other respects we agree with the circuit judge as to the terms of the agreement.

Coming now to the question of the liability of the Wormer Company to the complainant, we think it clearly appears that the entire detail of the transaction was known to the Wormer Company, passed through its books, and the entire financial part of the matter was handled by the said company. We gather from the testimony that the company knew of the relations existing between complainant and O’Hara, at least to the extent of knowing that the complainant had an interest in the proceeds of the sale. In this view of the case, it stood in fiduciary relations both with complainant and O’Hara, and there was at least an implied trust growing out of such relations.

Another view of the case which the evidence strongly tends to support is that, as between O’Hara and the Wormer Company, there never was any sale of this machinery; that O’Hara acted for the Wormer Company, and while there was a transfer in form to O’Hara, he was neither more nor less than its agent to sell, having guaranteed to it a certain price. In numerous places in his testimony he refers to the fact that he had guaranteed to the company a certain price. And in his optional agreement of sale to Booth of May 23, 1906, instead of describing himself as the owner, he states that he is possessed of authority to make the sale; and in the petition of the Wormer Company to the court of appeals the company is described as the owner of the property, and that long after it claims to have made the sale to O’Hara; and as late as May 15,1906, in a letter written by the Wormer Company to the trustee in bankruptcy, the property is spoken of as “owned by our company.” In this view of the case, the defendant Wormer Company would be liable ior any money that came into its hands, or under its control belonging to the copartnership. In either view of the case, therefore, we think the circuit judge was correct in the conclusion he reached as to the liability of the said company.

The decree of the circuit court will be modified as heretofore indicated as to the $1,500, one-half of which should be charged to the complainant, and the decree in all other respects will be affirmed, except that the appellants will be awarded costs of this court against the complainant.

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