text:
    CHURCH ASSOCIATION OF MICHIGAN v. WALTON.
    Principal and Agent — Authority to Collect Mortgage— General Practice — Evidence.
    Evidence that one to whom certain mortgages were assigned made -it a practice to collect the interest and principal of such securities through a firm composed of his assignors, and later through a mortgage company in which they were the managing stockholders, either by express direction to make such collections in particular cases or by sending papers and discharges when informed that payments had been made, does not establish a general agency on the part of the mortgage company to collect all funds due the assignee, so as to render the latter bound by a payment to the company of the principal of a mortgage which it had no express authority to collect, and for which it failed to account.
    Appeal from Clinton; Daboll, J.
    Submitted October 5, 1897.
    Decided November 17, 1897.
    Bill by the Church Association of Michigan against Edward Walton, William Haley, Samuel S. Walker, and Edwin E. White, to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Reversed.

      John H. Bissell, for complainant.

      Fancher & Sangster, for defendants Walton and Haley.
   Hooker, J.

The bill in this cause was filed to foreclose a mortgage given by defendant Walton to Walker & White, of St. Johns, to secure his promissory note, which mortgage and note were assigned by them to the complainant, the amount claimed being $1,600, with interest at 6 per cent, from November 12, 1892. Walton filed an answer, alleging payment, and praying as affirmative relief that the complainant be required to execute and deliver a discharge of the mortgage. Defendant Haley filed a separate answer, claiming to be the owner of a-later mortgage upon the premises, alleging payment of complainant’s mortgage, and asking that it be discharged.

The undisputed evidence shows that at -the time the mortgage was given, viz., in 1887, Walker & White were dealers in mortgage securities, having an office at St. Johns, Mich., where the complainant’s mortgage was made, payable. About October 1, 1889, they sold and transferred their, business to the Michigan Mortgage Company, Limited, of St. Johns, and said company succeeded to their business in the office previously occupied by them. Walker and White were stockholders and members of the managing board of said company until February, 1894, when it made an assignment for the benefit of the creditors. John H. Bissell, Esq., of Detroit, was complainant’s treasurer during the period covered by these transactions, and had charge of its investments. The interest coupon notes accompanying the mortgage were collected through the Michigan Mortgage Company, being forwarded yearly by Bissell. About November 25, 1892, the defendant Walton paid to the Michigan Mortgage Company the amount then due upon the mortgage. The defendant Walton was unaware that the mortgage had been assigned. On November 13, 1892, defendant Walton received the following letter:

“Dear Sir: We inclose canceled coupons (4). We note your mortgage matures with next payment of interest, and, if at that time you are not prepared to pay, we shall be glad to extend it for you.
“Respectfully,
“Michigan Mortgage Co., Lim.,
“By E. E. White, Treasurer.”
Walton thereupon sent a draft to the Michigan Mortgage Company, and received the following letter in response :
“Novemoer 25, ’92.
“We have your favor of the 22d, inclosing draft, $1,734.28, in payment of your mortgage, and in due time will send you the canceled papers. We hand you herewith the canceled coupons (5).
“Respectfully,
“Michigan Mortgage Co., Lim.,
“By E. E. White, Treasurer.”

The correspondence continues as follows:

“Mt. Pleasant, Mich., January 21, ’93.
“Michigan Mortgage Co.:
“Will you please send me the discharge of mortgage at once, as I am waiting for it, and oblige,
“Yours truly,
“Edward Walton.”
“January 23, ’93.
Dear Sir: We have yours of the 21st in reference to the discharge of your mortgage, and we are obliged to you for calling attention to the matter.
‘ ‘ Respectfully,
“Michigan Mortgage Co., Lim.”

Walton was unacquainted with the officers of the mortgage company, having never met them or been at their office; and the loan was negotiated through, and some, if not all, of the interest was paid to, Mr. William Dodds, of Mt. Pleasant, near which place Walton resided upon the mortgaged premises. Walton paid the interest to Dodds, who transmitted it to the mortgage company, and delivered the coupons to Walton when received. At the time the principal was paid, the mortgage and note were in Bissell’s custody, where they had been from the time when they were assigned. The money paid to the mortgage company never came to the hands of Bissell.

The following quotation from Joy v. Vance, 104 Mich. 97, is applicable here:

“Inasmuch as the mortgage was not paid to Walker & White, but to the Michigan Mortgage Company, as Vance himself testifies, it is not important whether he had notice or not. Had he paid to Walker & White in ignorance of the transfer, this question might have been important; but the case does not turn upon his right to pay to them, but upon his right to pay to the mortgage company. And, as Vance says that he did not know of the complainants’ ownership, there is no estoppel which would preclude their denial of the agency. He was not misled by them, but, if at all, by the acts of the Michigan Mortgage Company. The case is reduced, therefore, to the single question of the authority of the Michigan Mortgage Company to receive the money upon the mortgage.”

A long correspondence'between Bissell and the mortgage company and its predecessors, Walker & White, is found in the record, from which it appears that. Bissell had much business with these concerns for himself and clients, including the complainant. Most, if not all, collections of interest and principal upon such securities as were procured from them, were made through them, either by express direction from Bissell to make them in individual cases, or by sending papers and discharges when informed that they had been paid. It is contended that this shows that Bissell had authorized the collection of all funds due to himself and clients. As was said in Joy v. Vance, the sending of different securities for collection does not give general authority to make collections, or justify a debtor in concluding that a general authority to collect exists; and, as expressed by Mr. Justice Montgomery in Bromley v. Lathrop, 105 Mich. 496:

“As before stated, the fact that the interest was collected from time to time by the Michigan Mortgage Com-parry was not sufficient to justify an inference of authority to receive payment without the surrender of the securities. "We think the complainant had the same right to assume that the defendant was treating the Michigan Mortgage Company as his agent, as defendant had to assume that the company represented complainant.”

To support the defendants’ claim, it must appear either that express authority to receive the payment was given, or that the dealing between the parties — i. e., Bissell and the mortgage company — was such as to justify the conclusion that it was understood "between them that the company had authority to bind the complainant by accepting payment. As no express authority is shown, it is necessary that we find that Bissell had authorized the company to receive money upon any or all of the past-due paper which Bissell had received for himself or clients through the company or Walker & White.

The claim is supposed to be justified by the voluminous correspondence which passed between Bissell and the mortgage company, from which it appears that it was his uniform practice to collect interest through the company, and make collections of principal through foreclosure if not paid at maturity. We think that it does not follow. The mortgage company was a concern which dealt in mortgages. Applications were made to it, or through it to others, for loans. Presumably it was interested in keeping track of such loans, for its own benefit. Its patrons, borrowers as well as lenders, probably had confidence in it, and perhaps found it convenient to pay through the company to owners of securities who lived elsewhere. There is evidence that the company sometimes took second mortgages to secure its compensation, which appears to have come from the mortgagors, and not from the holders of securities taken. As intimated by Mr. Justice Montgomery in Bromley v. Lathrop, 105 Mich. 492, it may be that there is as much reason for assuming, from the bare fact that money was paid, that the company was the agent of the borrower as the lender, and the subsequent acceptance of the money by Bissell, and the discharge of the mortgage, would not change the relation. Many of the letters apply to such cases. Others show that the mortgage company was authorized to collect specified claims. Mr. Bissell was in the habit of keeping the mortgages and papers in his possession, and indicating the disposition of them. In Wilson v. La Tour, 108 Mich. 547, upon which defendants’ counsel rely, we were able to say that there was tangible evidence that the defendant had directed the mortgage company to press her debtors for payment upon all of her mortgages, and to receive payment. Such is not the case here. The case is within the principles laid down in the other cases mentioned.

The decree of the circuit court is reversed, and one will be entered here in accordance with the prayer of the complainant’s bill; the amount of said decree to be $1,600, with interest at 6 per cent, from November 12, 1892, to be computed in accordance, with the terms of the mortgage. Complainant will recover costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    AUDITOR GENERAL v. FLINT & PERE MARQUETTE RAILROAD CO.
    1. Railroad Companies — Taxation—Exemptions.
    Land belonging to a railroad company, and used constantly by it in originating and shipping freight, is not subject to taxation under the general tax law, in view of section 11 of said law (Act No. 206, Pub. Acts 1893), providing that the property of corporations paying specific taxes shall be exempt as to the property covered by such taxation, and of Act No. 129, Pub. Acts 1893, § 3, providing that the specific taxes on railroad companies, thereby provided for, shall be in lieu of all other taxes on the property of such companies, except such land as is “not actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road.”
    2. Same.
    The company will not render itself liable to general taxation with respect to such land by permitting a lumber firm to occupy a portion of the same, where the firm pays no.rent, and the arrangement is for the convenience of the company in handling the firm’s lumber, all of which is shipped over its road.
    Appeal from Bay; Maxwell, J.
    Submitted October 5, 1897.
    Decided November 17, 1897.
    Petition by Stanley W. Turner, Auditor General, for the sale of certain lands delinquent for the taxes of 1894. Objections were filed by the Flint & Pere Marquette Railroad Company. From a decree for petitioner, contestant appeals.
    Reversed.

      Isaac A. Gilbert, Prosecuting Attorney (U. B. Loranger, of counsel), for petitioner.

      T. A. E. & J. G. Weadock, for contestant.
   Long, C. J.

This is an appeal from the Bay circuit court, in chancery, overruling the objections of appellant to certain taxes, amounting to $169.74, assessed against it for State, county, and city purposes on the general tax roll for the year 1894. The objections to the tax were upon the ground that the property upon which it is assessed is a part of the terminals and depot grounds of the railroacj company, and is necessarily used in the operation of the company’s road and in the exercise of its franchise. The property is a piece of land near the Saginaw river, through which the railroad tracks run. It is shown by the record that this land is used constantly by the company in originating and shipping freight; that, in the year 1894 alone, 18,000 cars of freight were originated and shipped from this piece of land by the way of this road; and it is apparent that the land is necessary for the due execution of its business. Section 3, Act No. 129, Pub. Acts 1893, regulating the levying of specific taxes on railroad companies, provides:

“The taxes so paid shall be in lieu of all other taxes upon the properties of such companies, except such real estate as is owned and can be conveyed by such corporations under the laws of this State, and not actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road.”

The general tax laws of the State provide that:

“The property of corporations paying specific taxes shall be exempt as to the property covered by such taxation, except when otherwise provided by law.” Section 11, Act No. 206, Pub. Acts 1893, as amended by Act No. 229, Pub. Acts 1895.

The court below was in error .in holding that this property was subject to taxation under the general tax laws. In Detroit, etc., Station Co. v. City of Detroit, 88 Mich. 347, a grain elevator used in connection with the business of the company was held not liable to general taxation. See, also, Chicago, etc., R. Co. v. Bayfield Co., 87 Wis. 188.

It appeared in the present case that two lumber firms also occupied a part of the docks; but they paid no rent, and it was a convenience to the railroad company in shipping lumber over its road, and the entire lumber was so shipped. This fact can have no bearing on the case as to the liability of the company to pay general taxes on the land. This question was raised in Milwaukee, etc., R. Co. v. City of Milwaukee, 34 Wis. 271, and that court held the land was not subject to general taxes for that reason.

The decree below must be reversed, and a decree entered here in accordance with these views. The appellant will recover its costs against the State, and voucher will be drawn therefor by the auditor general.

The other Justices concurred.


author: Montgomery, J.

text:
    BURKE v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    Railroad Companies — Authority op Chief Surgeon — Employment op Assistants.
    The chief surgeon of a railroad company has no implied, authority to employ an assistant, who has not been appointed by the company, to treat an injured employé, where his express authority is limited to the employment of regularly-appointed local surgeons of the company, under contract relations with it.

    Error to Berrien; Coolidge, J.
    Submitted October 6, 1897.
    Decided November 17, 1897.

      Assumpsit by Charles H. Burke against the Chicago & West Michigan Railway Company for professional services. From a judgment for plaintiff, defendant brings error.
    Reversed.

      F. A. Nims and William Alden Smith (F. W. Stevens, of counsel), for appellant.

      James O’Hara, for appellee.

       The authority of au agent to employ medical services for an employe or other third person is the subject of a note to Hanscom v. Minneapolis St. R. Co., (Minn.) 20 L. R. A. 695.

   Montgomery, J.

This action was brought to recover for medical attendance upon one Herman Radke, a former employé of defendant company, who had received injuries while working on a train of defendant. The plaintiff recovered a verdict of $21.22, and defendant brings error.

After Radke received his injuries, he was first treated by Dr. Scott, a local assistant surgeon of the railroad company; but on a certain occasion he was taken worse, sent for Dr. Scott, who could not be found, and plaintiff was summoned, and continued to treat the patient for some weeks, commencing March 4, 1895, and continuing until June 36th of the same year. Dr. G. K. Johnson, of Grand Rapids, was at the time chief surgeon of the defendant railroad. On the 3d of April he wrote plaintiff as follows:

“I am informed that you are now attending Herman Radke, an employe of the C. & W. M. R. R. Co., who was injured a few weeks ago. Will you be kind enough to inform me as to his present condition ? Has he completely recovered? I would like a history of the case since you took charge of it. Please send your bill for services, itemized, to me, if you are through with the case.”

It is hot claimed that in the first instance plaintiff was employed by any one assuming to act for the railroad company, and the circuit judge so charged the jury; but he left the jury to determine whether Dr. Johnson had authority to employ plaintiff to render the services in question after April 3, 1895, and whether Dr. Johnson did employ the plaintiff to render such services.; instructing the jury that, in determining that question, the letter of April 3d, above quoted, should be considered. The only evidence tending to show employment is contained in this letter.. It certainly contains no express authority for plaintiff to attend Radke at the expense of defendant.

But, further than this, the undisputed testimony shows that Dr. Johnson was given no express authority to employ the plaintiff. It appears that his authority was limited, in respect to the treatment of injured employés, to the employment of regularly-appointed local surgeons of the company, who are under contract relations; the only exception being that if the regular surgeon cannot be immediately reached, and the case is urgent, Dr. Johnson is authorized to employ some other surgeon for temporary services only. This limitation on the authority of the chief surgeon is one which the company had the right to make, and the facts of this case would seem to demonstrate its propriety. Plaintiff in this case entered his charges in the first instance against Radke himself. The first item was charged at $2 for reducing fracture, and the subsequent items at $1 each. The bill was rendered to the railroad company at $50 for the first item and $3 for each subsequent visit. If the defendant has reason to apprehend attempts to enforce such charges as these in the absence of contract, it is not surprising that an attempt should be made, at least, to limit the authority of the chief surgeon to the employment of those who are under contract relations. In the absence of express authority, there is no implied authority for the chief surgeon to employ assistants. Terre Haute, etc., R. Co. v. Brown, 107 Ind. 336; McCarthy v. Railroad Co., 15 Mo. App. 385. The case of Hodges v. Power Co., 109 Mich. 547, does not aid the plaintiff’s contention. In that case the employment was by the authority of the general superintendent of the defendant company. We think verdict should have been directed for defendant in this case.

Judgment will be reversed, and new trial ordered.

The other Justices concurred.


text:
    BLODGETT v. FOSTER.
    1. Equity Jurisdiction — Complicated Accounts —Inadequacy of Legal Remedy.
    A suit in equity for an accounting is proper, though the accounts are all on one side, if there are circumstances of great complication or difficulty in the way of adequate relief at law.
    ■2. Same.
    A bill for an accounting set out three lumbering contracts, together with two supplemental ones, involving many thousands of dollars, and extending over a long period of time. The lumber was divided into a great variety of grades, each grade having a separate price. The payments made under the contracts were numerous, and extended through a series of years. There was controversy as to whether certain moneys had been properly expended for insurance, and also as to whether other lumber had been shipped in place of a portion burned. Held, that complicated circumstances were shown which justified equity in taking jurisdiction.
    Appeal from Kent; Grove, J.
    Submitted June 8,1897»
    Decided November 17, 1897.
    Bill by Delos A. Blodgett and Delos F. Diggins against John J. Foster and Henry N. Anderson for an accounting. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      Crane, Norris & Stevens, for complainants.

      Fitz Gerald & Barry (Francis A. Stace, of counsel), for defendants.
   Long, C. J.

This is an appeal from an order of the Kent circuit court in chancery overruling the demurrer of the defendants to the complainants’ bill for want of equity. The bill is filed for an accounting. We shall state only the substantial averments of it, or such parts of those averments as are necessary to a consideration of the questions involved.

The accounting prayed involves transactions under three contracts for the manufacture and sale of lumber. Copies of these contracts are made a part of the bill. . It appears that on May 1,1891, Clyde C. Chittenden, George E. Herrick, and William F. Chittenden, comprising the firm of Chittenden, Herrick & Co., .agreed in writing with the defendants to sell them all the white pine cut from specified lands from the date of the agreement to May 1,1892, estimated to be 5,000,000 feet or more. That firm agreed to manufacture this lumber in a good and workmanlike manner, and properly cross-pile and cover it; and the defendants agreed to pay for it the prices specified for the different grades. There were many different grades, too numerous to mention here, and a separate price for each grade. The stipulation as to payments was:

‘ ‘ Fifty per cent, cash for all lumber in yard, as estimated on the 1st day of May, 1891; for all lumber cut in the month of May, 50 per cent, casia on or before the 10th day of June, 1891, and so on during the life of this contract, — it being the intent and meaning of this contract that the advance payment shall be made on or before the 10th of one month for all lumber cut the previous month. The remaining 50 per cent, due* on'said lumber is to be paid as follows: For all lumber shipped one month, said parties are to pay for on or before the 15th of the following month, on actual measurement, in 90 days’ .acceptance, or cash discount of 8 per cent. All lumber to be paid for on or before nine months from the date of last estimate, or nine months from May 1, 1892.”

The agreement had the following provision in regard to ' insurance against loss or damage by fire:

‘ ‘ Each party to pay one-half of the insurance up to the four-fifths value required by the standard lumber insurance form.”

Chittenden, Herrick & Co. assigned this contract, June 1, 1892, to the Chittenden Lumber Company; and that company agreed with the defendants, in writing, that the contract should continue in force for one year longer, ending May 1, 1893, with some changes made in respect to the prices of lumber. In July, 1893, the Chittenden Lumber Company assigned the contract to the Wexford Lumber Company. From May, 1891, Chittenden, Herrick & Co. and the Chittenden Lumber Company delivered to the defendants, at the place agreed upon, all the lumber sold by the said agreement and supplemental agreement, at the prices agreed upon; these deals amounting to about $71,000. The defendants from time to time made payments under these contracts. These payments were numerous, extending through three years or more from and after the date of the contract. Settlements were made between them, and adjustments had, upon all questions respecting the inspection and the grades of lumber sold under the contract. In March, 1896, the Wexford Lumber Company assigned all its rights under these contracts to the complainants.

In April, 1892, Chittenden & Herrick entered into a contract with the defendants to sell to them all the pine lumber to be manufactured from the timber on specified lands, estimated to cut 15,000,000 feet. The lumber was to be graded, and the contract fixed the price of each grade. The lumber was to be'delivered f. o. b. The contract also fixed the time and terms of payment; also, contained an agreement that Chittenden & Herrick should keep the lumber insured to 80 per cent, of its value, and pay two-thirds of the’cost of insurance, — the other one-third to be paid by the defendants. A supplemental contract was also made between these parties, by which the price of lumber should be $1 per 1,000 higher than the price named in the contract. Shipments were made from time to time under these contracts to the defendants, and all has been shipped except about 800,000 or 900,000 feet. This lumber was charged to the defendants at the prices stipulated in the contracts. The payments were numerous, and were made at various times during 1893 and 1894. Chittenden & Herrick kept the lumber sold under the contract insured as agreed. The defendants claim they effected additional insurance, and that Chittenden & Herrick and their assigns are indebted to them in the sum of several hundred dollars for such additional insurance. Some controversy arises also over the price of lumber under this and the supplemental contract. In August, 1892, Chittenden & Herrick assigned to the complainants all payments due or to become due from the defendants, and empowered the complainants to receive and receipt for such moneys; and in January, 1896, they assigned all the moneys due or to become due under the supplemental contract to the complainants.

In May, 1893, another contract was entered into between Clyde C. Chittenden and "William F. Chittenden, under the firm name of the Chittenden Lumber Company, and the defendants, by which they agreed to sell to the defendants all their cut of pine and hemlock lumber and lath from May 1, 1893, to May 1, 1894, estimated at 5,000,000 feet, and to be cut from specified lands. Under this contract the different grades of lumber, lath, and timber were fixed at different prices; and the Chittenden Lumber Company agreed to load out the lumber upon the order of the defendants, and deliver the same on cars on Cadillac rate, — the defendants agreeing to pay all taxes on the lumber, and pay one-half of the insurance. The times and terms of payment were fixed by the contract. In February, 1894, the Chittenden Lumber Company, assigned to the complainants all moneys due on the contract. In July, 1893, the Chittenden Lumber Company had assigned to the Wexford Lumber Company all its right, title, and interest in the contract. The Chittenden Lumber Company and its assigns, after the contract was executed, delivered to the defendants all the lumber and lath mentioned in the contract, and has fully performed it on its part. Shipments were large and numerous. The defendants paid from time to time to the Chittenden Lumber Company and its assigns for the lumber so delivered; such payments extending through the years 1893 and 1894. Under this contract the defendants also claim moneys paid for additional insurance, and this is also in dispute. Some claim is also made by the defendants for certain lumber destroyed by fire. The Wexford Lumber Company, in 1896, assigned this contract to the complainants, and all its rights and interests thereunder.

It is alléged by the bill that the accounts in respect to the contracts of May, 1891, April, 1892, and May, 1893, are still open and unsettled. It is further set up in the bill that the defendants claim and insist that all transactions under the three contracts and the two supplemental contracts should be considered on a final settlement, and that, upon a settlement of all the transactions under the contracts, they claim a balance of money coming to them; and they threaten to commence an action at law against the complainants for such moneys. The complainants insist by the bill that if the accounts between Chittenden, Herrick & Co., the Chittenden Lumber Company, Chittenden & Herrick, the complainants, and defendants, in respect to all the transactions under and in the performance of the contracts mentioned, were properly taken, a balance of $6,930 over and above all payments and set-offs would be coming from the defendants to them, together with interest thereon.

The only question to be determined is whether, under the facts and circumstances alleged in the bill, the case falls within any rule of equity in respect to an accounting. It is contended by the defendants that the interposition of a court of equity in matters of accounting can be invoked only (1) ■ where the defendant occupies a fiduciary relation' towards the complainant; (2) where a discovery is necessary to enable the complainant to obtain relief; (3) where the accounts are mutual and complicated. It is conceded by all the parties that no fiduciary relations exist between the parties here, and that no discovery is necessary to enable the complainants tc obtain relief. The only question, then, is whether the accounts are mutual and complicated, or whether the accounts are so complicated, though not mutual, that a court of equity will take cognizance of the case.

It is contended by the defendants that the account must be not only complicated to such an extent as to render it practically impossible to take it in a suit at law, but must be mutual, while, on the part of the complainants, it is contended that where the accounts are all on one side, but there are circumstances of great complication or difficulty in the way of adequate relief, a bill for an accounting is well brought, on the sole ground that it is the most convenient remedy. Many authorities have been cited by counsel in their briefs; each contending that, under the authorities so cited, his contention is well sustained. It is contended by the defendants that while the bill alleges, in general terms, that the accounts are mutual, long, and complicated, and cannot be properly taken except in a court of equity, yet that no fact or circumstance is shown in support of this statement, and that, under well-adjudicated cases, such general averments are not sufficient to give jurisdiction to courts of equity, but that facts and circumstances from which the court can see that such complications exist must be shown.

We are satisfied, from a reading of the bill, that these accounts, of necessity, must be greatly complicated. Three contracts are set out, together with two supplemental ones. These contracts extend over a long period of time, and involve many thousands of dollars. There is a great variety of grades of lumber in each contract, each grade having a separate price. Payments were made under them, extending through a series of years. Great controversy arises over the insurance paid by the defendants,- — whether it was properly and legitimately paid. There is also controversy over some portion of the lumber burned, and whether other lumber was shipped in place of it. So that if a court of equity will take cognizance of a case of accounting where the accounts are complicated, and where there would be great difficulty in the way of adequate relief by an action at law, it seems to us that this is one.

In Appeal of Brush Electric Co., 114 Pa. St. 574, the bill was dismissed below upon the ground that the complainants had an adequate remedy at law. The supreme court of Pennsylvania reversed that ruling, saying:

“Equitable jurisdiction does not depend on the want of a common-law remedy; for, while there may be such a remedy, it may be inadequate to meet all the requirements of a given case, or to effect complete justice between the contending parties; hence the exercise of chancery powers must often depend on the sound discretion of the court. So a bill may be sustained solely on the ground that it is the most convenient remedy.”

In Society of Shakers v. Watson, 37 U. S. App. 141 (15 C. C. A. 632), speaking of the jurisdiction of courts of equity where no adequate remedy at law was believed to exist, it was said: .

“A large branch of equity jurisdiction has always been concurrent with that of the courts of law; that is, has extended over the same general subjects as those taken cognizance of in actions at law, but where, from the nature of the circumstances, and on account of the inadequacy of its remedies, a court of law cannot afford the due and appropriate relief.”

In Weymouth v. Boyer, 1 Ves. Jr. 416, 424, Mr. Justice Buller, sitting for the lord chancellor, says:

“We have the authority of Lord Hardwicke that if a case was doubtful, or the remedy at law difficult, he would not pronounce against the jurisdiction of this court. The same principle has been laid down by Lord Bathurst.”

Several other Pennsylvania cases, aside from those quoted from, hold that if the accounts are all on one side, but there are circumstances of great complication or difficulty in the way of adequate relief, a bill for an accounting is well brought, on the sole ground that it is the most convenient remedy. In Johnston v. Price, 172 Pa. St. 427, it was said:

“It is almost a work of supererogation to cite the perfectly familiar authorities that, in order to oust the equitable jurisdiction, the remedy or supposed remedy at law must be full, adequate, and complete, or that equitable jurisdiction does not depend on the want of a common-law remedy, but may be sustained on the ground that it is the most convenient remedy.”

The rule is laid down in 3 Pom. Eq. Jur. (2d Ed.) § 1421, that:

‘ ‘A suit in equity for an accounting is proper where the accounts are all on one side, but there are circumstances of great- complication, or difficulties in the way of adequate. relief at law.”

We think the following authorities and cases also sustain this proposition: 1 Enc. Pl. & Prac. 95; O’Connor v. Spaight, 1 Schoales & L. 305; Corporation of Carlisle v. Wilson, 13 Ves. Jr. 276; Farmers & Mechanics’ Bank v. Polk, 1 Del. Ch. 167; Darthez v. Clemens, 6 Beav. 165; Kennington v. Houghton, 2 Younge & C. 620; Taff Vale R. Co. v. Nixon, 1 H. L. Cas. 110; South Eastern R. Co. v. Brogden, 3 MacN. & G. 8; Watt v. Conger, 13 Smedes & M. 412; Seymour v. Dock Co., 20 N. J. Eq. 396; Kimberley v. Dick, L. R. 13 Eq. 1; Kirby v. Railroad, 120 U. S. 136; Devereux v. McCrady, 46 S. C. 133.

In Mitchell v. Manufacturing Co., 2 Story, 648, the bill was filed for an accounting. Defendants demurred upon the ground that the complainants had a complete remedy at law. Mr. Justice Story said:

“ It is certainly true that, in matters of account, courts of equity possess a concurrent jurisdiction, in most, if not in all, cases, with courts of’law. In the present case, taking the statements of the bill to be true, which we must upon the demurrer, it seems to us not only clear that it is a case fit for the interposition of a court of equity, but that it is emphatically so, as one where a court of law could not render any justice in the matter, or, if any, it must be a very crippled and imperfect redress. It is, indeed, impossible to read the bill, and not to feel that some of the claims there set up, considering the complications and changes of interests of the parties, cannot be adequately examined or properly disposed of except in a court of equity.”

Seymour v. Dock Co., supra, was a bill for an accounting. The demand on one side was for labor and material; and, on the other side, the extent of the liability to pay. The master said:

“The whole machinery of courts 'of equity is better adapted for the purposes of an account than that of the courts of common law, and in many cases, as has been said, when accounts are complicated it would be impossible for courts of law to do entire justice between the parties. Courts of equity, in cases of complex accounts, take cognizance sometimes from the very necessity of the case, •and from the incompetency of a court of law, at nisi prius, to examine it with the necessary accuracy. In this case, on this ground alone, I think jurisdiction of this cause must be maintained, even supposing the objection had been duly raised.”

In Taff Vale R. Co. v. Nixon, supra, it was said:

“Each case must be decided according to the peculiar circumstances belonging to it. It is therefore nothing to the purpose to show that there are cases where the court will not entertain jurisdiction because it is a matter of law. Each case must be investigated in order to see whether it comes within the rule laid down as that upon which a court of equity exercises its jurisdiction.”

We are satisfied in the present case that, though the accounts may not be mutual, there are circumstances of such complication in the way of adequate relief at law that a court of equity should retain jurisdiction.

The order overruling the demurrer will therefore be affirmed, and the defendants will have 20 days from this date to answer over.

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


author: Per Curiam.

text:
    MARSHALL v. CALKINS.
    Judgment by Default — Service Before Commencement of Suit.
    A judgment by default will be set aside where the declaration was served before it was filed or rule to plead was entered. South Bend Plow Co. v. Manahan, 62 Mich. 143, followed.
    Error to Clinton; Daboll, J.
    Submitted October 6, 1897.
    Decided November 17, 1897.

      Assumpsit by Frank A. Marshall and another against Albert J. Calkins on a promissory note. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Almond Gf. Shepard and Edwin H. Lyon, for appellant.

      High & Everett, for appellees.
   Per Curiam.

The declaration, as commencement of suit, was filed in the circuit court September 11, 1896, and rule to plead was entered on the same day. The only service of declaration, as appears by the record, was made on September 7th, four days before the declaration was filed or rule to plead entered. Defendant did not appear, and judgment was entered in favor of plaintiffs on November 30th following. Defendant brings error.

The judgment must be set aside, as the service was made before commencement of suit. The case is ruled by South Bend Plow Co. v. Manahan, 62 Mich. 143, and cases there cited.

Judgment is reversed, and case remanded.


author: Grant, J.

text:
    SELDEN v. VILLAGE OF ST. JOHNS.
    1. Villages — Personal Injuries — Presentment op Claim.
    A village is not liable for an injury caused by a defective sidewalk where no claim was presented to the common council before bringing suit, as required by Act No. 3, Pub. Acts 1895, chap. 5, § 7, although notice of the time and place of receiving the injury was served on the village clerk or his deputy, as required by chapter 7, § 7.
    3. Same — Trial—Waiver op Objection.
    A village sued for personal injuries does not waive an objection, raised at the close of plaintiff’s case, that plaintiff had never presented his claim for audit and allowance, by introducing testimony after an adverse ruling thereon.
    Error to Clinton; Daboll, J.
    Submitted November 6, 1897.
    Decided November 17, 1897
    - Case by Josephus O. Selden against the village of St. Johns for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Will H. Brunson, for appellant.

      Lyon & Booling, for appellee.
   Grant, J.

Plaintiff recovered verdict and judgment for injury received on an alleged defective sidewalk. The only question we need consider is, Did plaintiff present his claim to the common council of the defendant village prior to bringing suit, within the terms of the statute? Section 7, chap. 7, Act No. 3, Pub. Acts 1895, provides that no village shall be liable for such damages unless the person injured shall serve or cause to be served, within 60 days after such injury shall have occurred, a notice in writing upon the clerk of the village, or his deputy, setting forth substantially the time when and the place where such injury took place. This notice was served, and was the only claim made before suit was brought. Section 7 of chapter 5 provides for presenting claims against the village for audit and allowance. It contains the following provision:

“It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the village, for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance; or, if such claim is founded on contract, that the same was presented without the certificate or affidavit aforesaid, and rejected for that reason; or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”

Plaintiff did not comply with this provision. The last section above quoted expressly includes claims for “personal injuries.” The presentation of the claim is as expressly required by the statute as is the previous notice of the intention to hold the village liable. This statute was passed in 1895, and was undoubtedly intended to remedy a defect in the statute, under the decision of Lay v. City of Adrian, 75 Mich. 438, which held that claims for personal injuries were not included in the language of the act then under discussion, and found on page 442 of that opinion. Since then this court has held that such claims must be presented to the council. Springer v. City of Detroit, 102 Mich. 300. In that case the term “personal injuries” was not used, but, instead, the term “unliquidated claim.”

It is urged that the defendant waived this objection upon the trial. The objection was raised at the close of the plaintiff’s case, and the court expressly ruled against the defendant. One ruling was sufficient, and it was not necessary for the defendant to again raise the point. It was not waived by the subsequent introduction of testimony to meet the plaintiff’s case.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


text:
    BUTTERWORTH & LOWE v. KRITZER MILLING CO.
    1. Corporations — Ultra Vires — Mortgages.
    A corporation cannot defeat the foreclosure of a mortgage executed by it by showing that it was not authorized by the statute under which it was organized to acquire title to the real estate mortgaged.
    2. Same — Contract of Guaranty.
    The provision of 8 How. Stat. § 4161al, that the articles of association of a manufacturing corporation shall state the purposes for which it is formed, and that it shall not oe lawful for it to divert its operations or appropriate its funds to any other purpose, was incorporated for the protection of the public, and does not operate on the contracts of the corporation so as to prevent it from foreclosing a mortgage given to secure it against liability under a contract of guaranty, which, although ultra vires, was entered into with the assent of all of its stockholders, and which it has fully performed by paying the obligations guaranteed.
    Appeal from Newaygo; Palmer, J.
    Submitted October 7, 1897.
    Decided November 17, 1897.
    Bill by Butterworth & Lowe against the Kritzer Milling Company and others to foreclose a mortgage. Prom a decree for complainant, defendant milling company appeals.
    Affirmed.

      Rood & Hindman, for complainant.

      A. G. Day and George Luton, for appellant.
   Montgomery, J.

The complainant is a Michigan corporation engaged in the manufacture and sale of machinery. The defendant milling company is a corporation engaged in the milling business at Newaygo. Each of these corporations was formed under Act No. 232 of the Public Acts of 1885.

The present bill was filed to foreclose a mortgage given by defendant to complainant under the following circumstances: Complainant was desirous of employing C. C. Kritzer, who was at the time manager of the defendant company. The defendant company had a line of credit at the Old National Bank amounting to about $12,000. The bank refused to continue this line of credit if C. C. Kritzer should leave the management of the Kritzer Milling Company to others. Complainant, in order to secure the services of Kritzer, guaranteed the amount of the notes to the bank, under an agreement that complainant should be protected by a mortgage on defendant’s property, which mortgage was accordingly given, conditioned to well and truly pay and take up, or cause to be paid and taken up, all notes, drafts, obligations, or indebtedness which the Kritzer Milling Company then owed or should thereafter owe to the Old National Bank, and to save and hold harmless and indemnify the complainant from all damage or expense of any kind by reason of its having become surety. This mortgage was accompanied by a bond with similar conditions. All the stockholders of both companies knew of and assented to the arrangement. Default was made by defendant in the payment of its obligations to the bank. Complainant thereupon paid the obligations upon which it was guarantor, and brings this proceeding to foreclose the mortgage. Decree passed for complainant, and defendant appeals, contending, first', that as the articles of incorporation of the Kritzer Milling Company stated its purpose to be the operating of a flour, feed, and grist mill, and carrying on a general mercantile business, and the operating of a farm or farms, it could not acquire the title to the real estate which it subsequently mortgaged to complainant, and further contending that as the complainant, in its articles of incorporation, stated its business to be manufacturing, buying, and selling mill and other machinery and merchandise, its undertaking as guarantor of defendant’s obligations was ultra vires and unlawful, and that the mortgage was a simple mortgage of indemnity, and that, this being so, the payment made by complainant to the bank was voluntary, and that the complainant is not entitled to enforce the mortgage.

The first contention of the defendant is clearly without force, and does not merit extended discussion. See National Bank v. Matthews, 98 U. S. 621; Leazure v. Hillegas, 7 Serg. & R. 313; McIndoe v. City of St. Louis, 10 Mo. 575.

Counsel for defendant are in error in saying that the mortgage in question is a simple mortgage of indemnity, and nothing more. It is conditioned for and contains a covenant to pay its obligations to the bank. Under such conditions the creditor is, as a general rule, entitled, by substitution, to the benefit of the security. See Sheld. Subr. § 154 et seq. Whether this rule would obtain in a case where the supposed surety was under .no legal obligation to the creditor, we do not decide. The question whether this undertaking of defendant can be enforced, the complainant having performed on its part, is the meritorious question in the case. The statute under which complainant was organized, in section 2 (3 How. Stat. § 4161al), provides that the articles of association shall state “the purpose or purposes for which the corporation is formed, and it shall not be lawful for said corporation to divert its operations or appropriate its funds to any other purpose, except as hereinafter provided.” The question presented is whether this provision was intended to operate upon the contracts of the corporation, or was incorporated into the statute for the protection of the public. We think that the latter view is the correct one. A similar question has been presented under the national banking act, two sections of which have been construed at different times by the national Supreme Court. By the 29th section of the act, it is provided that the total liabilities to any association of any person shall at no time exceed one-tenth of the total amount of the capital stock of such association paid in. In Gold-Mining Co. v. National Bank, 90 U. S. 640, it was held that a basis of loans beyond the proportion specified would not enable the borrower to avoid the payment of money actually received. In National Bank v. Mattheios, 98 IT. S. 627, the court, in considering the effect of a mortgage which the bank was not authorized to take, said:

“The statute does not declare such a security void. It is silent upon the subject. If Congress had so meant, it would have been easy to say so; and it is hardly to be believed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision.” .

So in this case it is noticeable that it is not declared that contracts made by the corporation for other than defined purposes shall be void. The purpose of the statute, as we construe it, is the protection of the public and the stockholders. Undoubtedly, any excess of the powers defined is unlawful, to the extent of subjecting the offending corporation to action by the State, or other appropriate proceeding. The fact remains that this contract was ultra vires, but not only was it entered into with the full assent of all the stockholders of complainant, as well as those of defendant, but on the part of complainant it has been fully performed. In Martin v. Manufacturing Co., 122 N. Y. 165, it was held that, if an accommodation indorsement is made by a corporation with the knowledge and assent of all the directors and stockholders, the indorsement is valid and enforceable; and the case of St. Louis Drug Co. v. Robinson, 10 Mo. App. 588, affirmed in 81 Mo. 18, is directly in point. In that case the mortgage being foreclosed was given to secure the plaintiff for a sum of money paid because of plaintiff’s indorsement of defendants’ notes for accommodation. In that case it was held that where a corporation indorses notes for another, and is compelled to pay them, the party for whose benefit the indorsement was made cannot, in the absence of an express prohibition in the governing statute against such indorsements, invoke the doctrine of ultra vires as a defense against the enforcement of a chattel mortgage given to secure the corporation against liability on the notes. See, also, Dewey v. Railway Co., 91 Mich. 351.

The decree of the court below will be affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    ROBERTS v. SMITH.
    1. Drains — Taxation—Eminent Domain.
    The levy and collection of taxes to pay for the construction of a public drain is not an act within the constitutional restrictions upon the “taking” of private property for public use.
    3. Same — Necessity—Notice—Due Process of Law.
    A drain law, therefore, which makes the determination of the commissioner conclusive upon the question of the public necessity for a proposed drain when all rights of way are obtained without condemnation proceedings, and which fails to provide, where such proceedings are taken, for notice to those whose lands are within the assessment district, but are not traversed by the drain, is not unconstitutional as violating such provisions, or as authorizing the taking of property without due process of laW.
    3. Same — Appeal—Assignments of Error.
    An objection to drain proceedings on the ground that the drain commissioner was an interested party will not be considered on appeal where it is not raised by any assignment of error.
    4 Same — Certiorari—Conclusiveness of Return.
    On certiorari to review drain proceedings, a return in denial of allegations tending to show that the special commissioners were not “disinterested freeholders.” as required by statute, is conclusive.

      Error to Livingston; Davis, J., presiding.
    Submitted October 7, 1897.
    Decided November 17, 1897.

      Certiorari by Jerry Roberts to review the action of Timothy Smith, drain commissioner of Livingston county, in laying out and establishing a drain. From a judgment sustaining the proceedings, plaintiff brings error.
    Affirmed.

      W. H. S. Wood and Louis E. Howlett, for appellant.

      Claude A. Brayton, Dennis Shields, and Edmund C. Shields, for appellee.
   Hooker, J.

We are asked to review the judgment of the circuit court in relation to drain proceedings, brought before it by certiorari to the drain commissioner, the circuit court having affirmed them. Counsel discuss' two questions, viz., the constitutionality of the drain law, and the qualifications of the commissioners to act. We have held that the drain law of 1885 is constitutional. Gillette. McLaughlin, 69 Mich. 547; Smith v. Carlow, 114 Mich. 67. Counsel treat that question as settled, and have discussed only such questions as are based on the amendments to that law. The principal objection made is that under the law, as it now reads, persons who do not own lands traversed by the drain, but who are within the assessment district, háve no opportunity to be heard upon the question of the necessity for laying the drain. It is said that the law of 1885 gave this opportunity by providing that “all who will be liable to assessments for benefits,” as well as “all whose lands are traversed by the drain,” shall be served with the citation, and heard, in the condemnation proceedings. 3 How. Stat. §§ 1740c-1740c2. It is said that similar provisions are contained in the legislation of 1891 and 1893. See Act No. 187, Pub. Acts 1891, chap. 3, § 8; Act No. 203, Pub. Acts 1893, chap. 3, §§ 7, 8. In the law of 1895 persons of the former class are omitted, provision being made for the citation of those only whose land is traversed by the drain. Act No. 217, Pub. Acts 1895, chap. 3, §§ 6-8.

The petitioner’s brief contains a lengthy argument upon the proposition that persons within the assessment district are entitled, under the Constitution, to a hearing upon the question of the public necessity for the drain. The provisions of the Constitution cited (article 18, §§ 2, 14; article 15, § 15) have reference to the taking of specific property for public uses or improvements, like highways, public buildings, or drains. They have no reference to taxes levied and collected to pay for such improvements. It is under and by virtue of these provisions that drain laws must and do contain provisions for taking property that conform to the requirements of these sections, which have special reference to the power of eminent domain. There is nothing in these sections to prevent, nor have counsel called attention to any other constitutional impediment to, the determination of the question of public necessity for a proposed drain by a commissioner. The sections mentioned impose limitations on the conclusiveness of such determination in favor of the owner of land, in the defense of condemnation proceedings, to which those liable to assessments for benefits need not be parties. All of the recent drain laws have authorized the commissioner to determine the necessity for the drain; and the law of 1885, which has been held constitutional, has not provided for a héaring upon the question of necessity, except in condemnation proceedings; and the argument that, where all rights of way are obtained without condemnation proceedings, such parties cannot be heard upon the question of public necessity, is as applicable to the law of 1885 as to that of 1895. See 3 How. Stat. §§ 174058, 174059,1740d8. We are not aware of any cases that hold that all persons subject to assessments for drains must have notice of, and k hearing upon, the question of the public necessity. If the Constitution requires it, the same requirement would appear to be applicable to other public improvements, such as highways, waterworks, public buildings, and the like; and it might be plausibly urged that all taxation would be subject to the same right.

Assessments for the expense of a drain are not a taking of private property, within the sections cited, under the power of eminent domain. An elaborate discussion of this subject will be found in the case of People v. Mayor, etc., of Brooklyn, 4 N. Y. 419 (55 Am. Dec. 266), where it is held that such assessment is an exercise of the taxing power (see page 430), and fully sustains the power of imposing local burdens upon those benefited. It is there said that “there never was any just foundation for saying that local taxation must necessarily be limited by, or coextensive with, any previously-established district.” The case is the settled law of New York, having been cited with approval in many cases. Sun Mut. Ins. Co. v. Mayor, etc., of New York, 8 N. Y. 251; Town of Guilford v. Chenango Co. Sup'rs 13 N. Y. 146; Bank of Rome v. Village of Rome, 18 N. Y. 44; Brewster v. City of Syracuse, 19 N. Y. 118; People v. Smith, 21 N. Y. 599; Howell v. City of Buffalo, 37 N. Y. 269; People v. Montgomery Co. Sup’rs, 67 N. Y. 115; In re Ryers, 72 N. Y. 10; Darlington v. Mayor, etc., of New York, 31 N. Y. 190 (88 Am. Dec. 248); In re Townsend, 39 N. Y. 181; In re Zborowski, 68 N. Y. 96; Stuart v. Palmer, 74 N. Y. 190 (30 Am. Rep. 289). The case is approved by the Supreme Court of the United States in Gilman v. City of Sheboygan, 2 Black, 510.

It is also contended in this case that the law is void, in that it provides for the taking of property without due process of law. We understand, however, that this claim rests upon the alleged right of the appellant to contest the public necessity for the drain, and that it is not denied that the law provides for notice of the assessment, and an opportunity to be heard thereon. An interesting discussion of this question will be found in some of the cases cited. Stuart v. Palmer, 74 N. Y. 190 (30 Am. Rep. 289); In re Zborowski, 68 N. Y. 98. We think that our own decisions are conclusive. Borgman v. City of De troit, 102 Mich. 261; Scotten v. City of Detroit, 106 Mich. 564.

The proceedings are attacked upon the grounds that the drain commissioner and two of the three special commissioners were ■ interested parties. The interest of the drain commissioner is not raised by any assignment of error, and therefore cannot be considered. The same may be said as to the alleged defect in the petition for the appointment of three disinterested freeholders as commissioners. The return shows, however, that such were appointed. The interest which the special commissioners are alleged to have had is: First, that they were benefited by and assessed for another drain, for which the drain in controversy is designed to be an outlet, and the cleaning out of which will become necessary if this drain be made; and, second, that they will be benefited by the projected drain, if laid. The return of the commissioner disputes these allegations, except that they were assessed for the Conway and Cohoctah drain. We cannot take judicial notice that they were interested, and the return shows that they were not.

The judgment of the circuit court is affirmed.

The other Justices concurred.


text:
    RECORD PUBLISHING CO. v. MERWIN.
    1. Depositions — Notice op Taking — Waiver op Objeotions. •
    A deposition, offered in evidence was objected to on the ground that the notice of the taking of the same was irregular because it stated an intention to take the deposition on “written interrogatories attached,” when in fact none were attached. The deposition was returned three months before the trial, of which return the parties had due notice. Act No. 180, Pub. Acts 18C5, § 4, provides that objections to notices of taking depositions shall be regarded as waived unless made within three days after knowledge or notice of the return. Held, that the objection came too late.
    2. Assumpsit — Common Counts — Written Contracts.
    Plaintiff sought to recover on the common counts in assumpsit for certain advertising. The defendant objected to the introduction of any testimony, for the reason that the advertising was done under a written contract. Held, that the objection was properly overruled.
    8. Trial — Instructions—Failure to Prefer Requests.
    In civil cases, counsel should ask for such instructions as will protect their clients, and, failing to do so, cannot complain that instructions to which they were entitled were omitted from the charge of the court.
    Error to Wayne; Donovan, J.
    Submitted October 7, 1897.
    Decided November 17, 1897.

      Assumpsit by the Record Publishing Company of Philadelphia against William R. Merwin upon a contract for advertising. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Andrew J. Linzee (Samuel W. Burroughs, of counsel), for appellant.

      Frank T. Lodge, for appellee.
   Montgomery, J.

Plaintiff recovered upon a written contract for advertising. ' Defendant brings error. Plaintiff made its case by a deposition taken upon notice. When the deposition was offered in evidence, objection was taken to its introduction on the ground that the notice given of the intention to take the same was irregular because it stated an intention to take the deposition on written interrogatories attached, when in fact none were attached. The trial took place on the 17th of May, and it was stated by counsel on the trial that the deposition had been returned in February, and that the parties had had notice of the return of the deposition. This statement was not challenged. It is insisted by plaintiff’s counsel that objection to the form of the notice should have been made before trial, and the court so ruled, admitting the deposition. This ruling was right. Section 4, Act No. 180, Pub. Acts 1895, provides for the return of depositions to the court in which the case is pending, and for notice of the fact to the parties by mail, and then proceeds as follows:

“Objections to notices of or objections to the manner of taking the testimony, or of certifying or returning the deposition, shall be regarded as waived unless made in writing within three days after knowledge or notice of the return thereof.”

Circuit Court Rule 41 provides that such objections shall be noticed for hearing before the court within five days after such objections are made.

Objection was also made to the introduction of any testimony, for the reason that the advertising was done under a written contract, and an effort was made to prove it under the common counts. We are not aware that any different rule of procedure obtains in a suit upon a written contract than in an action upon an oral contract.

The other errors assigned upon the charge are directed to the failure to give certain instructions which it did not occur to counsel to suggest until after verdict. It is not too much to ask in civil cases that counsel shall ask for such instructions as shall protect their clients.

The record shows no error. The judgment will be affirmed.

The other Justices concurred.


text:
    LAWTON v. RICHARDSON.
    1. Injunction — Restraining Suit at Law — Bond.
    An injunction issued without bond, restraining defendant from proceeding to sell goods seized under a writ of attachment, is a nullity, under 2 How. Stat. § 6687, providing that “no injunction shall issue to stay the trial of any personal action in a court of law until the party applying therefor shall execute a bond with one or 'more sufficient sureties to the plaintiff in such action at law, in such sum as the circuit judge * * * shall direct, conditioned for the payment * * * of all moneys * * * the collection of which may be stayed by such injunction.”

      2. Receivers — Surrender oe Property.
    An order appointing a receiver of the assets of an insolvent debtor, made pendente lite upon a bill filed under 3 How. Stat. § 8749o, by the holders of preferred claims, and requiring an attachment creditor to surrender property held by virtue of his writ, is improvidently made.
    Appeal from Wayne; Donovan, J.
    Submitted October 7, 1897.
    Decided November 17, 1897.
    Bid by Edward Lawton and others against Henry W. Richardson, John Phillips, and others, for the appointment of a receiver. From an order denying a petition to vacate an order appointing a receiver, defendant Phillips appeals.
    Reversed.

      Durfee & Allor, for complainants.

      Henry B. Graves, for appellant.
   Hooker, J.

John Phillips, the appellant, began an attachment proceeding against Henry W. Richardson, before a justice of the peace, and the officer seized certain goods and chattels in Richardson’s store. A day or two later, the bill in this cause was filed, under 3 How. Stat. § 8749o, and an ex parte injunction was allowed by the circuit judge, and was issued without the filing of a bond, as required by 2 How. Stat. § 6687. Two or three days later an order was made appointing a receiver of the property, who took possession of the same, against the protest of Phillips; and, shortly after, the property was sold under an order of the court, of which proceeding Phillips had no notice, and did not learn for some time. From the proceeds, $50 was paid to the complainants’ solicitor. The order appointing a receiver was before this court in the case of Hall v. Wayne Circuit Judge, 111 Mich. 395, where it was said to have been improvidently made, and it was suggested that the motion to vacate it be renewed in the circuit court. Such a motion was subsequently made by Phillips, but was denied, and he has appealed. Meanwhile Phillips recovered a judgment against Richardson, in the attachment case, on November 24, 1896, for $303, and $4.50 costs. Upon this he has realized $60.90 upon execution, which was levied upon some of the property which was attached, the same having been turned over by the receiver.

Under the statute cited, the injunction was a nullity, and the cases cited upon the former hearing of the matter show the appointment of a receiver and sale of the prop-j erty to have been unwarranted. All of the orders made' are therefore vacated, and the receiver, having sufficient money from the sale, is hereby ordered to pay to the appellant the amount remaining due upon the appellant’s judgment. Appellant will recover taxable costs of all proceedings in both courts, against the complainants.

The other Justices concurred.


author: Moore, J.

text:
    TROMBLEY v. HOFFMANN.
    Appeal — Cancellation of Deed — Sufficiency of Evidence.
    A decree dismissing a bill to set aside a deed for undue influence and mental incompetency was affirmed; the record not disclosing such a condition of affairs surrounding the execution and delivery of the deed as would justify its cancellation.
    Appeal from Wayne; Eldredge, J., presiding.
    Submitted October 8, 1897.
    Decided November 17, 1897.
    Bill by Elmer Trombley, an infant, by Nicholas Lang, his next friend, against George Hoffmann and Lotta Hoffmann, to set aside a deed. On the death of complainant, the suit was revived in the names of Nicholas Lang, administrator, and others. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Morse Rohnert, for complainants.

      William Look and Ira G. Humphrey, for defendants.
   Moore, J.

In the early part of 1893, Richard Trombley married Annie Hoffmann, a widow. Richard Trombley and Annie Trombley are now both dead. The complainants are heirs at law of Richard Trombley. The defendants are the heirs at law of Annie Trombley. April 25, 1893, Richard Trombley deeded to his wife, Annie Trombley, certain real estate in Detroit. Mr. Trombley died May 1, 1893. This proceeding is brought to set aside that deed upon the ground that i.t was procured by the undue influence of the wife, and also upon the ground that Mr. Trombley was not competent to make the deed when it was made. The circuit judge found that complainants had failed to sustain their case, and dismissed the bill of complaint.

The questions involved are purely questions of fact. It would not profit any one to discuss these questions at length. It will be sufficient to say that a careful reading of the record does not disclose such a condition of affairs surrounding the execution and delivery of the deed as would justify any court in annulling it.

Decree is affirmed.

The other Justices concurred.


text:
    NICOL v. FITCH.
    1. Contracts — Steamboat Agent — Procuring Freight — Destruction op Vessel.
    The destruction of one of a line of three steamboats will not relieve its owner from liability under a contract entered into by the owners of the three boats whereby a person was to be paid a specified salary and expenses to act as agent in securing freight for the boats during the shipping season, each owner to pay one-third of such salary and expenses, and each to have the proceeds from the freight carried by his boat.
    2. Same — Assumpsit—Common Counts.
    The agent, having fully performed the services contemplated by the contract, may recover the stipulated proportion of his salary from the owner of the vessel destroyed, under the common counts in assumpsit.

    Error to Wayne; Frazer, J.
    Submitted October 8, 1897.
    Decided November 17, 1897.

      Assumpsit by John M. Nicol, assignee of Eber B. Ward, against Amza L. Fitch and others, for services rendered. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      T. E. Tarsney, D. B. Hayes, and R. I. Lawson, for appellants.

      Jonathan Palmer, Jr. (E. F. Bacon, of counsel), for appellee.
   Hooker, J.

In the spring of 1894, defendants, being the owners of a vessel named the Ohio, Oapt. Galvin, representing the steamer Saginaw Valley, and Oapt. Scott, representing the Ford, made arrangements to run these boats on different days, in connection with the Vermont Central Railway, as one line of "boats, under the name of the Duluth & Ogdensburg Transportation Line, though they were owned and run by their respective owners. A contract was then made for the mutual benefit of the owners of the vessels, with Capt. Eber B. Ward, to act as agent in securing freight for these boats during the season, for which it was agreed that each should pay him one-third of his salary (which was $1,000)', and of certain incidental expenses arranged for. Each owner was to have the proceeds from the freight carried by his boat. It is admitted that Capt. Ward performed the services contemplated during the season, and the owners of the other two boats paid their two-thirds of his salary. The defendants paid $107, and refused to pay more, upon the ground that their vessel, the Ohio, was lost during the season, and that the $107 paid was the proportionate share of his contract that Ward had earned at the time the vessel was lost. Plaintiff is the assignee of Ward, and he was allowed to recover upon a declaration containing the common counts, on the theory of a contract fully performed by Ward. Upon the other hand, it is contended that Ward did not perform his contract; that such was made impossible by the destruction of the Ohio; and that, therefore, his right of action, if he had any, was for a breach of the original contract by the defendants. The meritorious question involved is whether the loss of the Ohio terminated the contract. Prom a refusal to direct a verdict in their favor, the defendants have appealed.

It is obvious that the case is not one where the performance of the contract was a physical impossibility, as where one agreed to sell a horse, and the horse died, or to make cider from certain apples, which were immediately destroyed by fire. It is rather the case of one refusing to receive goods bargained for, because it had become impossible, through accident, for him to make a contemplated use of the goods. It is clear that such cases are not within the rule that one is released from a contract, when contingencies must be provided for in the contract if one would avoid the consequences. See Beebe v. Johnson, 19 Wend. 500 (32 Am. Dec. 518); Dermott v. Jones, 2 Wall. 1; The Harriman, 9 Wall. 161; Blight v. Page, 3 Bos. & P. 295, note; Jones v. U. S., 96 U. S. 24. This doctrine is well supported by authorities cited in the opinions of the federal cases above referred to. See, also, Ford v. Cotesworth, L. R. 4 Q. B. 127.

A distinction is sought to be drawn between the cases of the class mentioned and those where the contract may be said to contemplate the continued existence of a particular person or thing which is the subject of the contract. This rule has been applied to the case of the rental of a music hall destroyed by fire, an apprentice who became ill, and could not render personal service, and a woman whose illness prevented her from performing as a pianist; but it was held not applicable to a case where one contracted to manufacture a certain iron work, and the mill was destroyed by fire. It was said:

‘ ‘ There was no physical or natural impossibility inherent in the nature of the thing to be performed, upon which a condition that the mill should continue can be predicated. * * * True, the contract specifies the mill as the place, but it necessarily has no importance except as designating the place of delivery.” Booth v. Mill Co., 60 N. Y. 491.

In Taylor v. Caldwell, 3 Best & S. 826, A. agreed with B. to give him the use of a music hall on specified days, for the purpose of holding concerts. The hall was burned, and both parties were held discharged. Blackburn, J., said:

“The principle seems to us to be that, in contracts in which performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance, arising from the perishing of the person or thing, shall excuse the performance. ”

And it is said in Dexter v. Norton, 47 N. Y. 62 (7 Am. Rep. 415):

“The reason given for the rule is because, from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the particular person or thing.”

That there are cases where such an inference is reasonable is obvious, as in cases of contract of marriage, and perhaps the case of the music hall; but it ought not to be said to be apparent, unless the character of the contract is such as to clearly disclose such intention, and there is danger that courts, in their desire to relieve contracting parties in hard cases, may extend it to contracts where the implication is not apparent. The supreme court of Missouri held it not applicable where an insurance company claimed that a contract by which an agent was employed for five years was terminated' by its insolvency (Lewis v. Insurance Co., 61 Mo. 538); and this court held a school district liable for the wages of a teacher, though it was found necessary to close the school, by' reason of the prevalence of smallpox. See Dewey v. School Dist., 43 Mich. 480, 38 Am. Rep. 208, and note. See, also, 2 Smith, Lead. Cas. (8th Ed.) 36.

In the case before us, the subject-matter of the contract was the procurement of freight to be transported. Ward undertook to give his time to this, and did so. On the part of the defendants a promise to pay was made. "Ward performed his promise, and the defendants decline, not because they cannot pay, which is certainly a physical possibility, but because it has become inconvenient for them to transport the goods owing to the loss of their vessel. The parties had agreed that Ward was to secure all the freight for transportation by this line that he could obtain, for which he was to receive $1,000, one-third of which sum was to be paid by the defendants. They were under no obligation to Ward to transport any of it in the Ohio, or at all, for that matter. The share the Ohio would transport would depend upon circumstances not within Ward’s control. Had the defendants immediately substituted another boat for the Ohio, Ward would not have been discharged from the obligation of the contract, which would have been susceptible of performance. The case is not dissimilar from one whereby the captain of the Ohio should have agreed with the.owner of goods, without qualification, to transport them, both parties expecting them to be transported in the Ohio. The loss of the vessel would not relieve the owners from the contract, as the freight could as well be transported in another vessel. If the contract bound defendants to transport the goods in the Ohio, the rule would be different. But it did not. In fact, it did not bind them to transport them at all. Ward, as their agent, was to secure the freight, but there is nothing in the record that shows that Ward had a right to insist that it be transported by defendants. His contract was performed when he secured the freight, and defendants had no obligation but to pay.

Ward having fully performed his contract, a declaration upon the common counts was proper.

Upon the undisputed testimony, the plaintiff was entitled to recover, and the court might properly have directed a verdict. It therefore becomes unnecessary to consider other questions.

The judgment is affirmed.

The other Justices concurred.


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    McCURDY v. NEW YORK LIFE INSURANCE CO.
    1. Attorneys at Law — Employment—Retainer—Estoppel.
    An insurance company which forwards from the home office a check payable to the order of an attorney as a retainer fee in proceedings to be instituted, and which is kept constantly advised of what he does in its behalf, cannot question the fact of his employment.
    2. Same — Prosecution for Crime — Interest of Private Parties —Preliminary Proceedings — Public Policy.
    Public policy does not forbid the employment of an attorney by private parties to prepare for presentation to the prosecuting attorney a statement of the facts and the law applicable to an alleged case of embezzlement, to draft the complaint in justice’s court, and to attend the examination of the accused, with a view to having him brought to justice if guilty of the crime charged.
    3. Same — Entire Contract — Illegal Provision — Assistance in Prosecution.
    But if the contract is entire, and contemplates the rendition not only of services in the preliminary proceedings, but of assistance to the prosecuting attorney in the circuit court, it is in contravention of 1 How. Stat. § 560, prohibiting attorneys who have received compensation from any person interested in prosecuting a person charged with felony from aiding in the prosecution, and no recovery can be had thereunder.
    Error to Shiawassee; Smith, J.
    Submitted October 8, 1897.
    Decided November 17, 1897.

      Assumpsit by John T. McCurdy against the New York Life Insurance Company for professional services. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Fitz Gerald & Barry (Francis A. Stace, of counsel), for appellant.

      John T. McCurdy, in pro. per.

   Moore, J.

Plaintiff, a lawyer, recovered a judgment of $77 against defendant for professional services rendered in a criminal proceeding instituted by the defendant company against one of its agents for embezzlement.

A great many assignments of error are made by counsel for defendant company. So far as they relate to the proof of the employment of plaintiff by defendant, we do not think it would be profitable to discuss them, for the fact that defendant knew of and approved of the employment of plaintiff is conclusively shown by the acts of defendant company. The check of the company issued at the home office for $25, payable to the order of Mr. McCurdy, was forwarded to him as a retainer fee, and the company was kept advised of what he was doing; so that, if any testimony upon that branch of the case was improperly admitted, it was harmless error.

The record shows that the work done by Mr. McCurdy was done in preparing a presentation of the facts and the law applicable to the case, and presenting them to the prosecuting officer, conferring with the persons representing the company, drafting the complaint in justice’s court, attending the examination in justice’s court, drafting the information which was filed in the circuit court, resisting a motion to quash the information, and rendering such assistance in the preparation and prosecution of the case as he could render. Upon the trial, Mr. McCurdy withdrew any claim for services in the circuit court. Judgment was rendered upon the verdict, and costs were allowed to the plaintiff.

We think there is but one question necessary to discuss; that is, can a lawyer recover for professional services rendered to a corporation, in the preparation and trial of a criminal case, set in motion by the complaint of an officer of said corporation ? Counsel for defendant answer this question in the negative, claiming that only the people and the respondent are interested in a criminal prosecution, and that a contract by a lawyer to render services in such a case at the employment of private parties js against public policy and void; citing 1 How. Stat. § 560, which prohibits any prosecuting attorney from having the assistance of any counsel “who has received any compensation from any person or persons who are interested in prosecuting the party charged with felony,” and 3 How. Stat. § 557, which provides, “Nor shall any attorney be permitted to prosecute or aid in prosecuting any person for an alleged criminal offense where he is engaged or interested in any civil suit or proceeding depending upon the same state of facts against such person directly or indirectly;” and also citing Meister v. People, 31 Mich. 99; Sneed v. People, 38 Mich. 248; People v. Hurst, 41 Mich. 328; People v. Bemis, 51 Mich. 422; People v. Hendryx, 58 Mich. 319; People v. Schick, 75 Mich. 592.

These cases are all criminal cases, tried in the circuit court, and undoubtedly hold that it is unlawful for an attorney to assist in the prosecution of a criminal case, except when he is employed by the people. The statute provides that the people shall be represented, in the trial of criminal cases in the circuit court, by the prosecuting attorney or by some one appointed by the court to assist him, and it is made the duty of the prosecuting attorney to appear in all such cases when not disqualified. There is, however, no provision of the statute which requires the prosecuting attorney to appear in examinations in criminal cases in justice’s court except when requested to do so by the examining magistrate. 1 How. Stat. § 552. This examination cannot be said to be a trial, but it is an investigation to decide whether a crime has been committed, and whether there is probable cause to believe the accused is guilty. It was said in Meister v. People, supra: “The law never has prevented, and does not now prevent, private complaints before magistrates, who have a discretion in regard to calling in the prosecuting attorney.” And, if Mr. McCurdy was employed by the defendant to appear in justice’s court, we do not think there is anything in the statute or in the decisions of this court that would preclude him from recovering for the services so rendered. The defendant is a corporation. It can act only through its officers and agents. If, as in this case, it has reason to suppose one of its agents is guilty of a crime, it has a right to employ an agent or attorney to.investigate the facts of the case and the law applicable thereto, and to present its showing to the officers of the law, with a view to having the guilty person brought to justice. If the defendant employed plaintiff to do work of this character, and he did such work, he is entitled to recover therefor.

Mr. McCurdy could not recover for any services rendered by him which were forbidden, like assisting the prosecuting attorney in the criminal case in the circuit court. It is now claimed that the plaintiff withdrew the items for services in the circuit court, and for that reason the verdict ought not to be disturbed. It is the claim of the defendant that, if a contract was in fact made with the plaintiff, it was an entire contract, providing, not only that plaintiff should prepare the case for trial, but that he should take charge of it in the circuit court, and therefore the .entire contract was void. The plaintiff contended that no such contract was made. This raised a question of fact, which should have been submitted to the jury, ■'

The counsel for defendant, by their requests to charge, sought to have the jury pass upon its version of the contract. These requests were refused, and the jury were told: “Your duty will be to determine the extent and reasonable value of services which the plaintiff has rendered, * * * and the amount plaintiff ’is entitled to receive therefor,” etc. We think this was error.

It will not be necessary to discuss the other questions raised in the brief.

Judgment is reversed, and a new trial granted.

The other Justices concurred.


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    BOWERSOX v. BOWERSOX.
    1. Husband and Wipe — Alienation op Appeotions — Sufficiency of Declaration.
    A declaration in an action for alienating the affections of plaintiff’s husband, which alleges that, by reason of defendant’s acts, plaintiff has been deprived of the “society, comfort, assistance, and support” of her husband, which she should have had, and otherwise ‘ ‘ might and would have had, ” and of the happiness, reputation, and honor which she had theretofore enjoyed as his wife, and of his affections towards her, is sufficient, at least unless demurred to, without an express allegation that plaintiff possessed the affections of her husband.
    2. Same — Damages—Cost of Separate Maintenance — Evidence.
    It was proper to permit the plaintiff in an action for alienating the affections of her husband to testify to the cost of her separate maintenance, where there was other evidence disclosing the husband’s condition in life, and also tending to show his ability to support the plaintiff.
    3. Same — Wife’s Earnings — Set-off.
    The fact that a wife’s earnings ordinarily belong to her husband does not entitle the defendant in an action for alienating the husband’s affections, and bringing about a separation, to have such earnings deducted by the jury from the damages awarded by them for loss of support.
    4. New Trial — Denial op Motion — Failure to State Reasons —Error Without Prejudice.
    A judgment will not be reversed because of the failure of the court to give a reason for denying a new trial upon request, as required by the statute, where the record shows a proper exercise of his discretion in denying the motion.
    Error to St. Joseph; Yaple, J.
    Submitted October 8, 1897.
    Decided November 17, 1897.
    Case by Rebecca Bowersox against Noah L. Bowersox for alienating the affections of plaintiff’s husband. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      H. P. Stewart and Howell & Carr, for appellant.

      S. M. Constantine and W. G. Howard, for appellee.
   Hooker, J.

The plaintiff, a married woman, obtained a judgment against her husband’s father for alienating the affections of her husband, and causing a separation, and the defendant has brought the case to this court for review.

An objection was interposed to the introduction of any evidence, upon the ground that the declaration omitted to state that the plaintiff possessed the affections of her husband. Error is assigned upon the overruling of this objection. The declaration contains no express and positive averment of that fact, but the following appears:

“And the said defendant, well knowing the residence and abode of the said Dick K. Bowersox, refused to acquaint the said plaintiff therewith, and has caused the said Dick K. Bowersox not only to wholly desert, but also to refuse to provide for and to support, her, or to contribute anything towards her support, although he is of abundant ability so to do, or to live and cohabit with her as his wife, and thereby, and by reason of the premises, the plaintiff has from thence hitherto lost and been deprived of the society, comfort, assistance, and support of the said Dick K. Bowersox, her said husband, which the said plaintiff during all that time ought to have had, and otherwise might and would have had,' and has deprived the said plaintiff of the support and maintenance which she would otherwise have had and .enjoyed with her said husband and from him, and has utterly deprived her of the happiness, reputation, and honor which she has heretofore enjoyed as the wife of the said Dick K. Bowersox, and of his affections towards her.”

This language clearly implies that she did enjoy the society, comfort, assistance, and support of her husband, and conforms to approved declarations. See 1 Enc. Forms, p. 684. The marriage relation was alleged, as required by the authority cited in support of defendant’s contention, viz., 1 Chit. PI. 379; and we are not cited to any authority holding a declaration defective where it omits an averment that the parties lived happily together. At all events, a declaration containing the averments of this one should be held good unless demurred to.

The plaintiff was allowed to testify to the cost of living, and it was objected that this evidence was not admissible until it should be shown that the husband was able to support her; or, as stated by the counsel, “before she could introduce evidence of the value of support, she should show the financial and social condition of her husband, and his ability to furnish her support.” It is urged that “the financial condition in life and the social position of the husband are the criterions by which to determine what are necessaries to which the wife is entitled, ” and that in this case these questions were ignored. The evidence discloses the condition in life of the husband and his father’s family, and there was some evidence bearing upon his ability to support the plaintiff. The defendant was at liberty to show that the plaintiff was not injured through the separation, if he could do so. Up to that time the husband seems to have supported the wife, and there may be other facts shown justifying the inference that he would have continued to do so. The evidence was admissible, and as the defendant appears to have raised no issue upon this subject, and offered no request to charge upon it, we think that he cannot complain.

It is contended that the defendant had a right to show plaintiff’s ability to earn money, and that the amount should be deducted from the value of her support. It is undoubtedly true that the services of a wife belong to her husband in and about family cares, but we are not aware of any case that permits a defendant in an action like this to have her earnings set off against her maintenance. Counsel cite no such authority, and we find none.

A number of exceptions to the rulings and charge were taken, but we think it unnecessary to. discuss them.

The court denied a motion for a new trial, without giving a reason therefor, as required by law, although specially requested so to do; but the judgment should not be reversed for that reason, as the record shows a proper exercise of his discretion in denying the motion.

The judgment is affirmed.

The other Justices concurred.