text:
    HOOPER v. DE VRIES.
    1. Partition — Title—Equitable Rights.
    Complainant in a partition suit is not bound to first establish his title in an action at law unless the defendant sets up an apparently good legal title; and an equitable right in the defendant as a co-tenant, growing out of his improvement of the property, does not subject the complainant to that necessity, but, on the contrary, such right is only available to defendant in a partition suit.
    3. Same — Inconsistent Defenses.
    A claim by defendant in partition, in support of his contention that complainant should first establish his title at law, that, if ejectment were brought, the person under whom complainant claims would be a necessary party, and might have a valid defense to the action, is inconsistent with an answer which asserts that defendant is the sole owner and in sole possession of the property.
    3. Same — Bona Fide Purchaser — Burden op Proof.
    Where complainant in partition has a clear record title, and he has shown a purchase of the interest he claims, and payment therefor, the burden rests on defendant to show notice of equitable rights acquired prior to the purchase.
    Appeal from Kent; Adsit, J.
    Submitted November 6, 1897.
    Decided December 7, 1897.
    Bill by Thomas Hooper against Jacob De Vries, Sr., and Ida De Vries, for a partition of real estate. From a decree for complainant, defendants appeal.
    Affirmed.

      Maynard B. Butler, for complainant.

      D. E. Corbitt, for defendants.
   Montgomery, J.

The complainant filed a bill for partition of lots 271 and 273 of Leonard & Co.’s addition to the city of Grand Rapids. From a decree granting the relief prayed, the defendants appeal, the contention being that complainant should have first proceeded to establish his title at law by ejectment.

The answer of the defendants consisted of a denial that the complainant had any right, title, or interest in the lots named, and the averment that the defendants were the sole owners of the property, and in possession thereof. On the trial it appeared that the lots in question were conveyed by deed from John S. Lawrence to Jacob De Vries, Sr., and Jacob DeVries, Jr., September 10,1892; that subsequently the undivided one-half interest of Jacob De Vries, Jr., was sold by the sheriff of Kent county, and purchased by the complainant; so that a complete record title in the undivided one-half was shown in the complainant, and there could have been no good faith in the contention by the defendants that they were the sole owners of the property. The defense actually attempted on the hearing was this: Defendant Jacob sought to show that, at the time the property was purchased of Lawrence, he (defendant) paid most of the purchase price, and afterwards moved a house onto the property at his own expense. Defendent contends that, under this showing, relief ought not to be granted in this proceeding, but complainant should resort to his remedy at law. So far from this being true, the only remedy to which defendant would be entitled for any improvement put upon the land would be upon partition, and this remedy must be afforded him in a court of equity. See Freem. Co-ten. § 510. It is only in case the defendant sets up a good legal title that the complainant' is required to first contest that title at law, as in Fenton v. Mackinac Circuit Judge, 76 Mich. 405. But, where the defendant’s claim is purely equitable, and particularly where, as in this case, the remedy could be awarded only on a partition of the lands, there can be no propriety in remanding complainant to a suit at law, to which no good-faith defense can be interposed by the defendant.

It is suggested that Jacob De Vries, Jr., might have had some defense to an action of ejectment; that, if he was preparing to put a house on the vacant lot, he might claim it as a homestead. This is speculation. No such defense was attempted here. The answer, on the other hand, asserts positively that the defendant Jacob De Vries, Sr., and his wife, are the sole owners of the property.

Again, it is suggested that, if ejectment were brought, Jacob De Vries, Jr., would have to be a necessary party. This is not consistent with the answer of the defendant, which asserts that the defendant Jacob, Sr., and his wife, are in sole possession of the property.

The defense attempted is not within the answer, and the record shows no notice to complainant prior to his purchase of any equitable claim of defendant. The complainant had the right to rely upon the title as it appeared of record. Reynolds v. Ruckman, 35 Mich. 80; Hammond v. Paxton, 58 Mich. 393. Complainant having shown purchase of these lands, and payment therefor, the burden rests with defendant to show some notice of his equitable rights prior to the purchase. Shotwell v. Harrison, 22 Mich. 410.

The decree will be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WARREN-SCHARF ASPHALT-PAVING CO. v. SECRETARY OF STATE.
    Statutes — Foreign Corporations — Increase in Capital Stock —Franchise Fee.
    The provision of Act No. 79, Pub. Acts 1893, subjecting foreign corporations theretofore authorized to do business in this State to the payment of a specified franchise fee upon every increase of their capital stock, does not apply to an increase of stock made prior to the passage of the act, although the certificate thereof was not filed with the secretary of state until after the act took effect; and this notwithstanding the provision of 3 How. Stat. § 4161d6, that foreign corporations, when permitted to carry on business in this State, shall be subject to all the restrictions and liabilities of domestic corporations, and the provision of 3 How. Stat. § 4161al, subd. 4, that an increase in the capital stock of a' domestic corporation shall be operative from the date when the certificate is received by the secretary of state.

      Mandamus by the Warren-Scharf Asphalt-Paving Company, a foreign corporation, to compel Washington Gardner, secretary of state, to record certificates of increase of relator’s capital stock.
    Submitted November 17, 1897.
    Writ granted December 7, 1897.

      Bowen, Douglas & Whiting, for relator.

      Fred A. Maynard, Attorney General, for respondent.
   Moore, J.

The relator is a corporation organized in New York in 1890, and in June of that year it filed with the clerk of Wayne county, in this State, a copy of its articles of incorporation, and also filed in the office of the secretary of state of Michigan the resolution required by section 4331, 1 How. Stat. Its capital stock at this time was $60,000. This capital stock was increased from time to time, until in April, 1891, it reached $750,000; but no certificate of increase of capital stock was filed with the secretary of state until as stated herein. In May, 1895, the relator increased its capital stock from $750,000 to $950,000. In August, 1897, it filed with the secretary of state a certified copy of said increase, with a' recording fee of $1, and a franchise fee of $100, with a request to record said certificate, and to issue a certificate of said record. The secretary of state declined to do this until certificates of the prior increase of capital stock were presented. The relator, in September, filed copies as requested. The secretary of state then required a payment of $345 franchise fee, in addition to the $100 tendered, before he would record the certificates of increase of capital stock, and .issue certificates thereof. This is a proceeding to compel the secretary of state to record said certificates upon the payment to him of a recording fee of $1 for each of said certificates, and the franchise fee of $100.

Act No. 182, Pub. Acts 1891, subjected every corporation or association thereafter incorporated by or under any general or special law of this State to a franchise fee of one-half of one mill upon every dollar of its capital stock, and, upon each subsequent increase thereof, to a like fee. This section was amended by Act No. 79, Pub. Acts 1893, so as to subject foreign corporations thereafter incorporated, or thereafter permitted to transact business in this State, that had not filed or recorded their articles of association under the laws of this State prior to. the passage of the act of 1893, to the payment of the same fee. The secretary of state bases his refusal to record the certificates of increase of capital stock, without the payment of a franchise fee upon the increase of capital stock made prior to the enactment of the law of 1893, upon a provision found in subdivision 4, § 2, Act No. 232, Pub. Acts 1885, as amended by Act No. 170, Pub. Acts 1889, which reads:

“* * * Subject to the limitations herein named, the capital stock and number of shares may be increased or diminished at any annual meeting of the stockholders, or at any meeting duly called for that purpose, by a vote of two-thirds of the capital stock of the corporation, and at such meeting the stockholders shall have power to make all necessary provisions for calling in and canceling the old and issuing new certificates of stock; but nothing herein contained shall in any way operate to discharge any company which may diminish its capital stock from any obligation or demend that may be due from said company. When any such corporation shall so increase or diminish its capital stock, the president and a majority of the directors shall make a certificate thereof, which shall be signed by them, and recorded and returned, as is provided herein for recording and returning the articles of association; and such increase or diminution shall commence and be operative from and after the date when the certificate is received for record in the office of the secretary of state.” 3 How. Stat. § 4161a1, subd. 4.

A reference to the context shows that this was a provision in the law applying to the formation of domestic corporations. This is made the more evident from the fact that by Act No. 170, Pub. Acts 1889, a new section was added to the statute, which provided:

“Corporations organized under the laws of any State, * * * upon recording copies of their charter, * * * as provided in section 9* of this act, and upon filing in the office of the secretary of state a resolution, as required in general section 4331 of Howell’s Statutes, and appointing an agent for service of process, may, for such purposes, carry on business in this State, and shall enjoy all the rights and privileges, and be subject to all the restrictions and liabilities, of corporations existing under this act.” 3 How. Stat. § 4161d6.

The respondent now claims that, as the foreign corporation enjoys its privileges subject to the restrictions of domestic corporations, it should be held that the relator did not increase its stock, so far as this State is concerned, until it filed its certificate of increase of stock with the secretary of state.

It is undoubtedly true that the legislature intended to subject foreign corporations to the provisions of law contained in the act relating to domestic corporations, so far as they were applicable. Sections 1 and 2, Act No. 232, Pub. Acts 1885, provide who may form a corporation, and how it shall be organized; what its name shall he, and the limitations as to the amount of stock; the size of the shares of stock; what proportion of the stock shall be paid in; the place in .this State where the office of the company shall be located; the names of the stockholders, etc. It will hardly be claimed that all these restrictions and limitations apply to foreign corporations. Prior to the enactment of the law of 1893, the relator had been authorized to do business in this State. If it had presented to the secretary of state its certificate of increase of stock any time before the law of 1893 took effect, it is conceded that upon the payment of the recording fee it would have been the duty of the secretary of state to record the certificate. We think it too narrow a construction to give to the language used in subdivision 4, § 2, of the act of 1885, and section 37 of the act of 1889, to say that for all increases of capital stock made prior to 1893- a franchise fee must be paid. This makes the law of 1893 retroactive, when it is evident the legislature did not intend that the franchise fee should be required of companies then authorized to do business in this State, except for such increase of the capital stock as was made subsequent to the enactment of the law of 1893.

The writ should issue as prayed.

The other Justices concurred.


author: Hooker, J.

text:
    CLEVELAND REFINING CO. v. DUNNING.
    Contracts — Parol Evidence.
    Parol evidence that a written order for the purchase of goods was given with the understanding that it was to he obligatory only in case the purchaser should be allowed to oancel a similar order previously given to another person is not inadmissible as varying the terms of a written contract.
    Case made from Menominee; Stone, J.
    Submitted October 5, 1897.
    Decided December 15, 1897.

      Assumpsit by the Cleveland Refining Company against Alonzo Dunning and others for goods sold and delivered. There was a judgment for plaintiff, and defendants assign error.
    Reversed.

      Sawyer & Waite, for appellants.

      J. M. Opsahl, for appellee.
   Hooker, J.

The defendants executed an instrument, of which the following is a substantial copy:

April 7, 1893.
Cleveland Repining Co.
Ship to Dunning Bros. •
P. O., Menominee. County,-. State, Michigan.
F. O. B. Cleveland. Time, April 30,' ’93.
Route,--.
10 bbls. 15 cold test black oil.
Dunning Bros. & Co., Purchaser. No.-. Terms, 60 da. M. J. Walsh, Agent.

This instrument was a blank form presented by plaintiff, and duly filled, as above. The goods having been, shipped and refused, action was brought to recover the price. The defendants sought to show that the blank order was filled out at the solicitation of the plaintiff’s agent, who was then allowed to take it, upon the understanding that it was to be obligatory only in case the defendants should be allowed to cancel a similar order previously given to the Standard Oil Company, but that they were not permitted to do this, and so informed the plaintiff. This was excluded upon the ground that the writing could not be varied by parol. In this there was error. The making and delivering of a writing, no matter how complete a contract according to its terms, is not a binding contract if delivered upon a condition precedent to its becoming obligatory. In such case it does not become operative as a contract until the performance or happening of the condition precedent. Proving this is not an attempt to vary the terms of a writing admitted to have been executed and delivered with the understanding that it should take effect, as was the base in Phelps v. Abbott, 114 Mich. 88. See Bish. Cont. § 170; Ware v. Allen, 128 U. S. 590.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    DURGIN v. SMITH.
    1. Contracts — Statute of Frauds — Agreements not to be Performed Within One Year.
    A merchant’s parol promise to supply a customer, on specified terms, .with what goods he may want, is not within the provision of the statute of frauds declaring void every oral agreement that, by its terms, is not to he performed within one year from the making.
    2. Same — Promise to Pay Another’s Debt — Independent Consideration.
    A parol agreement to pay the debt of a third person is not void under the statute of frauds where there is a‘ consideration passing to the promisor.

      3. Same — Mutuality.
    A promise by stockholders in an insolvent corporation to pay a debt of such corporation is a sufficient consideration for an. agreement by the creditor to continue to furnish goods exclusively to a new corporation in which the promisors are also stockholders
    4. Parties — Eppeot of Misjoinder.
    A misjoinder of defendants in an action ex contractu will not, in view of 2 How. Stat. § 6409, and Cir. Ct. Rule No. 27, adopted pursuant thereto, operate to abate the suit, though all were joined in a single count.
    Error to Wayne; Hosmer, J.
    Submitted October 6, 1897.
    Decided December 15, 1897.

      Assumpsit by William B. Durgin against Frank G. Smith, Sr., Frank G. Smith, Jr., and F. G. Smith & Sons, a corporation, for goods sold and delivered. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Bowen, Douglas & Whiting, for appellant.

      Moore & Goff, for appellees.
   Montgomery, J.

At the close of the plaintiff’s testimony, the circuit judge directed a verdict for the defendants, and plaintiff brings error.

The plaintiff counted on and offered testimony tending to show the following state of facts: In February, 1894, a corporation known as F. G. Smith, Sons & Co. was engaged in the business of buying and selling jewelry, silverware, etc., at Detroit. Plaintiff was engaged at Concord, N. H., in the manufacture and sale of sterling silverware. The corporation of F. G. Smith, Sons & Co. was indebted to plaintiff in the sum of $4,601.99. F. G. Smith, Sons & Co. had given a chattel mortgage on its stock, and the failure of the corporation was imminent. The plaintiff visited Detroit, and it was agreed by F. G. Smith, Sr., and F. G. Smith, Jr., that they would pay him the entire amount of the F. G. Smith, Sons & Co. indebtedness, with interest at 6 per cent, semi-annually until it was all paid, and plaintiff on his part agreed to sell them what goods they wanted, and they were to pay cash at 30 days for all they bought, and plaintiff also agreed to let them have his goods exclusively in Detroit. The Smiths afterwards organized a new corporation, under the name- of F. G. Smith & Sons, and plaintiff furnished this corporation his goods in pursuance of the engagement.

We have stated the purport of plaintiff’s testimony, in case the jury should adopt the construction of it most favorable to his case, as we are bound to do in this hearing. It should be stated that it is a question for the jury as to whether the promise was intended as a promise by the Smiths on their own behalf, or whether, on the other hand, it was understood and intended as a promise of F. G. Smith, Sons & Co., and also whether the promise of plaintiff to furnish exclusively to the new concern the goods of his manufacture was given in consideration of the Smiths’ promise to pay all indebtedness. The question is whether, accepting the statement of plaintiff, and giving it the construction most favorable to him, it was an engagement entered into by the Smiths on their own behalf or on behalf of the new company to pay the debt of the old concern. It is clear, as we think, that the promise did not bind the new concern of F. G. Smith & Sons in the first instance. This new corporation was not then formed, and when formed it had stockholders who were not concerned in the old company, and who are not shown to have assented to any such arrangement. If reliance is placed on a letter written by F. G. Smith, Jr., the same informality exists, i. e.,,want of authority to make such engagements on behalf of the new company.

The circuit judge was of the opinion that no liability was shown on the part of defendants Smith for two reasons: (1) If the promise be treated as an original one, it was void for lack of mutuality. (2) If it be treated as a collateral promise, it was invalid for want of consideration. The first conclusion was based upon the view that the promise of the plaintiff to furnish his goods to the new concern was not to be performed within one year. The promise made by plaintiff did not, in terms, provide for a longer period than one year. It was an agreement to continue to furnish the new concern goods exclusively upon certain terms. Section 6185, 2 How. Stat., provides that any oral agreement which, by its terms, is not to be performed within one year from the making thereof, shall not be binding. This engagement.on the part of plaintiff is not within the statute. It was operative for such time as the defendants chose to avail themselves of. It might be less than a year. Sword v. Keith, 31 Mich. 247; Carr v. McCarthy, 70 Mich. 258.

Was the engagement binding upon the plaintiff? If not, the circuit judge was right in holding that there was no consideration for the promise. The purport of the plaintiff’s engagement was that he would supply the wants of the Smiths for such indefinite time as they should desire, at the terms of 30 days, and should not sell others in Detroit. It is true there was no amount agreed upon, but the option as to the amount of purchases rested with the Smiths. The plaintiff meantime had, however, bound himself not to sell to the competitors of the Smiths. If this were all of the transaction, the agreement might be void for want of mutuality, as no corresponding promise of the Smiths to take any amount of the plaintiff’s product is shown as furnishing a consideration for the promise of plaintiff. American Cotton Oil Co. v. Kirk, 15 C. C. A. 540, 68 Fed. 791; Wilkinson v. Heavenrich, 58 Mich. 574. But that is not the whole transaction. An independent consideration for the plaintiff’s promise was furnished in the promise of the defendants Smith to pay the indebtedness of the old company. See Cooper v. Wheel Co., 94 Mich. 272. The case is distinguishable from Ruppe v. Peterson, 67 Mich. 437. In that case the promise to extend credit was indefinite, and incapable of being enforced, and there was no agreement for exclusive right to sell goods of plaintiff’s manufacture, as in this case. The case is not within that provision of the statute of frauds declaring void any promise to answer for the debt of another. This agreement was entered into for the benefit of. the Smiths, upon a consideration passing to them, and in such case an oral promise is valid, even though the original debtor remains liable. Calkins v. Chandler, 36 Mich. 320 (24 Am. Rep. 593); Michigan Slate Co. v. Railroad Co., 101 Mich. 14; Leonard v. Vredenburgh, 8 Johns. 37 (5 Am. Dec. 317).

It is contended by the defendants that a joint action cannot be maintained against all the defendants, and that, all having been joined in a single count, judgment should pass in favor of all. Cir. Ct. Rule 27 was adopted with a view of preventing a mistrial in just such cases, and is based upon the authority of section 6409, 2 How. Stat., which confers power upon this court to adopt rules having the purpose to prevent the defeat or abatement of any civil suit on contract for either misjoinder or nonjoinder of parties, where the same can be done consistently with justice.

The judgment will be reversed as to defendants Smith, and a new trial ordered. The judgment in favor of F. Gr. Smith & Sons, corporation, will be affirmed. Plaintiff will recover costs against the Smiths.

The other Justices concurred.


text:
    BANE v. KEYS.
    Attachment — Petition for Dissolution — Denial in Conjunctive.
    An affidavit for attachment charged that defendant “has . assigned, disposed of, and concealed, and is about to assign, dispose of, and conceal, his property, with intent to defraud his creditors.” Defendant filed a petition for the dissolution of the writ, in which he denied “that he has assigned, disposed of, and that he is about to assign, dispose of, and conceal, his property, with intent to defraud his creditors, or that he has made any fraudulent disposition whatever of his property with said intent.” Held, that the denial in the conjunctive was bad.

      Certiorari to Clinton; Daboll, J.
    Submitted October 6, 1897.
    Decided December 15, 1897.
    Attachment proceedings by George Bane against Horace N. Keys. Plaintiff brings certiorari to review an order dissolving the writ.
    Reversed.

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

      High & Everett, for appellee.
   Hooker, J.

As a prerequisite to the dissolution of an attachment, a sworn petition, denying the existence of the facts alleged in the affidavit as the grounds for attachment, must be filed; and more than one ground may exist. Detroit Free Press Co. v. Surgical Ass’n, 64 Mich. 605. It is not enough that some of these grounds are negatived, but all of them must be. In the case of First Nat. Bank v. Steele, 81 Mich. 93, Mr. Justice Grant, with the approval of the entire bench, said, in speaking of the requisites of a petition for dissolution of an attachment:

“In his petition for dissolution, he ‘denies that he has assigned, disposed of, or concealed his property with intent to defraud his creditors.’ It is contended that this is bad, because in the alternative. * * ■ * A denial in the alternative is good, while an affirmation in the alternative is bad.”

As false swearing in such petition may be punished as perjury, it is apparent that the denials of the facts set up in the affidavit for attachment must not be so ambiguous as to preclude the charge of perjury upon each and every one of them by which a truthful statement in the affidavit for attachment is sought to be denied. The affidavit for attachment in this case charges that the defendant “has assigned, disposed of, and concealed, and is about to assign, dispose of, and conceal, his property, with intent to defraud his creditors.” If he has done either, it is all that is required to warrant an attachment. So, if the petitioner denied but one, it would not be sufficient. That is just what the petitioner has done. This is the language:

“And your petitioner denies that he has assigned, disposed of, and that he is about to assign, dispose of, and conceal, his property, with intent to defraud his creditors, or that he has made any fraudulent disposition whatever of his property with said intent.”

The last sentence may be a sufficient, though not a categorical, denial that the petitioner has assigned, etc., but it does not dispute the existence of an intention to assign, etc. The first sentence, on the other hand, couples several intended frauds, and denies that he is chargeable with all of them. The converse of this contention has been held in the case of Kegel v. Schrenkheisen, 37 Mich. 174, where the court held that a statement of two grounds in the alternative in an affidavit for attachment did not charge either. So, in the petition for dissolution, a denial of both grounds in conjunction is not a denial of either.

Could a man be convicted of perjury upon the charge of having testified that he had not sold a horse named Prince, upon proof that what he did testify was that he had not sold the horses named Prince and John? The statement would be true, though he had sold either horse, so long as he had not sold both. Would any court in the land sustain such a conviction, upon the assumption that he meant something that he had not said? Wherein does it differ from this case, and what legitimate distinction can be made between that case and one based on this petition? The petitioner has sworn that he had not been guilty of certain acts and certain other intentions, collectively. How can we say that he intended to deny them severally ? And is it not still more inaccurate to say that he has done so, when the grammatical construction of his petition is clearly otherwise, and when the meaning insisted upon must depend upon the assumption of a loose use of language in a paper in which accuracy is required? If we assume that he intended to deny each, as contradistinguished from all, may we also assume that it was not the petitioner’s intent to so shape his denial as to insure his immunity from punishment for perjury if the affidavit, as constructed, should prove false as to one ground? If not, we must hold this petition bad. The jurisdiction to dissolve is statutory, and must be strictly construed. I am of the opinion that we should not sacrifice the integrity of the practice upon so slight a reason as the relief of a party from the consequence of his lawyer’s mistake in a particular case, especially as to do so would be followed by the necessity for an innovation upon well-settled rules in relation to perjury. In my opinion, the order of the circuit court should be reversed.

The other Justices concurred.


author: Long, C. J.

text:
    BARNETT v. FARMERS’ MUTUAL FIRE INSURANCE CO. OF ALLEGAN AND OTTAWA COUNTIES.
    1. Fire Insurance — action on Policy — Defenses —Order of Proof.
    In an action upon a fire-insurance policy, evidence tending to show that defendant is estopped to rely upon the defense set up in its special notice is no part of plaintiff’s original case, and is properly excluded when offered as such.
    2. Same — Willful Burning — Estoppel.
    A fire-insurance company is not estopped to defend an action upon a policy, on the ground that plaintiff willfully burned the property insured, by the fact that one of its officers made a criminal complaint against plaintiff for such burning, and that plaintiff was discharged upon the examination, or by the fact that, with knowledge of- all the circumstances, it demanded and collected an assessment from him for the loss of his property.
    3. Same — Cross-Examination.
    In an action upon a fire-insurance policy, where the defense set up is a willful burning of the property insured, the plaintiff may be cross-examined as to his alleged fraudulent conduct with respect to insurance upon other property.
    4. Same — Motive—Evidence.
    In such case, defendant may show that there had been trouble in plaintiff’s family, as bearing upon a motive for the burning.
    5. Trial — Incompetent Evidence — Waiver.
    A party cannot complain of the erroneous admission of testimony where he first introduced testimony to the same effect.
    6. Same — Curing Error.
    Error in receiving incompetent evidence is sufficiently cured by the court’s striking it out on motion; at least where no request is preferred for a specific instruction that it be disregarded by the jury.
    7. Same — Insufficient Instructions.
    The insufficiency of the instructions upon a particular branch of the case is not ground for reversal where no request was made for more specific instructions.

      Error to Ottawa; Padgham, J.
    Submitted October 8, 1897.
    Decided December 15, 1897.

      Assumpsit by John Barnett against the Farmers’ Mutual Fire Insurance Company of Allegan and Ottawa Counties on a policy of insurance. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Walter I. Lillie, for appellant.

      C. R. Wilkes, for appellee.
   Long, C. J.

This action is upon an insurance policy, to recover for the loss by fire of a barn and its contents. The defendant gave notice, under the plea of the general issue, that it would show that plaintiff willfully burned the barn, with intent to injure the defendant. That was the only issue tried, and upon it the jury found in favor of defendant. ”

It appears that plaintiff’s barn and contents burned on the night of July 2, 1896. His family at home consisted of his wife, two sons, and a daughter. Prior to this time he had had serious trouble with his family, resulting in his leaving home. His son Thomas worked the farm on shares in 1895, and claimed the right to work it for the year 1896. This was disputed by plaintiff, and he tried to eject the son by force, which resulted in a fight, in which revolvers and clubs were used. For about 10 days before the fire, plaintiff had been boarding at Coopers-ville, distant about four miles from the farm, with Mr. Reynolds, whom he tried to induce to go with him to eject his sons from the farm. This, Reynolds refused to do, but told him to get Mr. Mclnnis, who was a strong man, to go with him. It also appears that, on the morning of the night of the fire, plaintiff met his wife at Coopersville, and tried to make a settlement of the property matters. He had filed a bill against her for divorce, charging her with extreme cruelty. No settlement was reached. Plaintiff then started to see Mclnnis, about 7\ miles from Coopersville, and reached there about 5 o’clock in the afternoon of that day. Mclnnis would not accompany him, and plaintiff claims that he then started to return to Coopersville. The barn and contents were burned that night about 11 o’clock.

The son Thomas had been from home, and returned just before 11 o’clock. He testified that he thought the barn doors looked different than usual, and he was afraid to go into it, so he turned the horse loose, and put the buggy and harness in a shed. About 30 minutes later, the barn was seen to be on fire. The next morning fresh tracks were found in. the lane, that had evidently been made the night before. This lane extended from the barnyard west about 100 rods, and the tracks were of a man going towards the barn, and from it, the whole length of the lane. These tracks were peculiar, — were made by a shoe having a half sole, and toed out in an unusual manner. Measurements were made of them, and they were found to exactly correspond with tracks made by the plaintiff. A deputy sheriff called upon the plaintiff the next morning after the fire, and he made contradictory statements as to 'his whereabouts the night before, — not only to the deputy sheriff, but to others. He claimed to some of the parties that he slept in a barn the night before, but could not find it again. To others he said that he had stopped in several barns. On 'the trial he stated that he went into only one barn, but did not lie down, — only sat down a few minutes. No one saw him that night on his way from visiting Mclnnis to the time of his arrival at Coopersville. The next day after the fire, he was arrested for burning the barn.

On the present trial, plaintiff’s counsel, before any witnesses were sworn, offered in evidence the complaint and warrant, for the purpose of showing that his arrest was caused by a director of the insurance company. Counsel further stated that he proposed to follow it up by showing that the plaintiff was discharged on that examination, that the secretary of the company was then present, and that the insurance company is now estopped from setting up the defense that the plaintiff burned his own property. Defendant objected to the complaint and warrant’s being received. The court stated: “I think, at this time, I will sustain the objection.” It was not admitted that this was the original complaint and warrant, and there was no proof that it was; but, even if it had been, the court was not in error in ruling against its admission at that stage of the case. It was no part of the plaintiff’s case; and, even if the complaint and warrant had been received in evidence, the fact that the complaint was made by an officer of the defendant company would not, of itself, estop the company from making the defense in the civil action that the plaintiff willfully set fire to the building, though he had been discharged on the examination.

Plaintiff was asked about his arrest, and stated that he was arrested, and put under $2,000 bonds, and, not getting the bonds, he was put in jail. This testimony was stricken out. Error is assigned upon this ruling. There was no error in this. But, even if there had been, his counsel, later in the case, again called his attention to the fact, and he stated that he was in jail for seven days under that arrest, and that the secretary and one of the directors of the company were present at his examination; thus showing that the defendant company had knowledge of his arrest.

On his cross-examination he was asked about some insurance that he had had in another company, in which claim was made that a cow was killed by lightning. He testified that the cow was killed, but said that he could not remember whether the insurance company paid for her or not, though the policy was canceled. He stated further that his wife and his brother made the claim. He was asked, “Was it a false claim?” This was objected to, and the objection overruled, and witness answered, “Why, I could not say it was, because I am under the belief that the cow was killed by lightning.” If anything prejudicial to the plaintiff could be seen in this question and answer,,we think the question a proper one. The defense was that plaintiff burned his own barn to get this insurance, and involved the fraudulent conduct of the plaintiff. Great latitude in cross-examination is allowed in such cases. Comstock v. Smith, 20 Mich. 338; Anderson v. Walter, 34 Mich. 113; Wilbur v. Flood, 16 Mich. 40 (93 Am. Dec. 203).

Some contention -is made that the court was in error in permitting the defendant to show that there had been trouble in the plaintiff’s family. But plaintiff’s counsel was permitted to go fully into that question in his direct case. The plaintiff testified that his children had driven him away from home, and forbade his coming back. His counsel offered in evidence the bill filed for divorce. The testimony drawn out by defendant was also competent as bearing upon the motive the plaintiff might have had for burning the barn.

Counsel for plaintiff also contends that the court was in error in refusing to give the following request in his charge to the jury:

“If the jury find from the evidence in this cause that the loss mentioned in the plaintiff’s declaration occurred on the 2d day of July, 1896, and that on the 3d day of July, 1896, the said plaintiff was arrested, charged with, willfully and maliciously burning the property, the value of which is sought to be recovered in this suit, had his examination a week later, and that at said examination the secretary of said company was present, and one of the directors of said company was also present, and the authorized agent was also present, and heard the proof before the magistrate at the examination, and that the declaration in this cause was filed on the 17th day of September, 1896, and served on the defendant company on the 19th day of September, and that said company filed its plea and notice to said declaration on the 3d day of October, 1896, setting up in its said notice that said plaintiff was not entitled to recover in said action, for the reason that he had himself burned, or caused the property mentioned to be burned himself; and you also find from the evidence in this cause that afterwards, and on the 10th day of October, 1896, the said defendant, by its authorized agent, caused a notice of assessment to be made and served upon said plaintiff, stating therein that ‘at a meeting of the board of directors held July 28,1896, an assessment of two and one-half mills per dollar on the capital stock of the company was ordered, to take effect October 10, 1896,’ and also notifying said, plaintiff that he was required to pay the sum of three dollars, as his assessment on the insurance policy upon which the present suit is brought, within 30 days; and you further find from the evidence in this case that the said plaintiff paid said assessment on the 31st day of October, 1896; and you further find that no notice of cancellation was at this time served upon this plaintiff by the said defendant; and you further find from the evidence that the defendant company knew of the facts and circumstances connected with the burning of said property at the time said last-mentioned assessment was made, and notice thereof given to said plaintiff, and at the time of the payment thereof, — then I charge you that a demand and receipt of assessments after knowledge of loss and facts which would avoid the policy, if you should so find, would estop the defendant company from now claiming that, from any act on the part of the plaintiff, it, the said defendant company, is not liable on said policy of insurance ; that if, with full knowledge of the facts and circumstances, it assessed the plaintiff on this policy, it would be a waiver of its right to defend on that ground, the same as if the plaintiff had not paid an assessment due at the time of the fire, and after the fire he paid the assessment, which was received by the company. This receiving of the assessment after the fire, which was due before the fire, would be a waiver of the forfeiture for nonpayment of assessments due. But I charge you that the waiver, if any, depends upon whether, under the evidence, you find that the company knew of the facts and circumstances it claims are connected with said fire at the time this assessment was made and paid; for, if it did not, there would be no estoppel, and it could still make the defense.”

The defendant is a mutual insurance company. The policy provides that “any member may withdraw by returning his or her policy, and by paying all assessments made, or liable to be made, for previous losses, and debts and claims then due, or liable to become due, from such member to the company.” Section 16 of the charter provides that “every member shall he equally and ratably assessed in proportion to the amount of his or her insurance, * * * except as to members who have been insured in the company less than one year prior to the date of any assessment.” The plaintiff received notice of assessment, and paid it; and, as counsel for defendant well says, there is nothing in the record showing that this was not for an existing debt of the company. But the company would not be estopped from making this defense if the assessment had been shown to have been made for the loss of his own property. The jury found by their verdict that the plaintiff burned the barn. The doctrine of estoppel rests upon very different grounds. In Crane v. Reeder, 25 Mich. 321, it was said:

“To entitle a party to insist upon an estoppel, he must be able to show that the other party has done something or represented something which has had the effect to deceive and mislead him, and which would render it inequitable for the right of such other party to be now enforced against him.”

As was said in Ladd v. Brown, 94 Mich. 139:

“The doctrine of estoppel is applied to prevent injustice, not to relieve parties from the obligations of their contracts ; and the conduct of the party claimed to have been estopped must have been such as to have misled the party setting up the estoppel into a course to his prejudice, or induced him to do what he otherwise would not have done.”

Another question relates to the failure of the court to charge in reference to certain testimony which the court permitted the defendant to give, but which was afterwards stricken out. Mr. Giddis lives about a quarter of a mile from this barn, and west of Conklin. There is a fence, extending east and west, near his house. He testified that he heard a dog bark on the night of July 2d, and, going to the window, he heard a person climb over the fence, and walk through the fi'eld, towards the Barnett place. On cross-examination he testified that it was dark, and that he could not tell what it was; he only heard something. Mr. Reed, also, was called, and testified to seeing tracks, some distance from Mr. Giddis’ house, leading towards the Barnett barn. There was no evidence showing that they were the tracks made by the plaintiff, or that there was any peculiarity about them. On motion of plaintiff’s counsel, the court struck out the testimony of both these witnesses, — Giddis and Reed. It is contended that the admission of this testimony was prejudicial to the plaintiff, and the fact that it was stricken out did not right the matter with the jury; that the court should have spoken of it in its charge, and directed the jury that it must be .disregarded. At least, this is the substance of the contention of counsel. No request to charge upon this matter was tendered to the court. If counsel thought it needed some special attention, he should have called the attention of the court*" to it, in a request to charge, especially when the court stated so plainly to the jury that it was not to be considered in the case.

Complaint is made that the court did not sufficiently charge the jury upon the question of circumstantial evidence. No request was presented upon this question, and, as before stated, if counsel desired more specific instruction he should have asked it.

Some other questions are raised, which we have carefully examined, but do not feel called upon to discuss. What are not discussed are overruled. We find no error in the record.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    McINTYRE v. FARMERS & MERCHANTS’ BANK.
    1. Garnishment — Bank Deposit — Ownership —Question for Jury.
    Where a wife was impleaded in garnishment proceedings as a claimant of a bank deposit sought to be reached by her husband’s creditors, and it appeared that the account had stood for three years in the name of the husband, and that the income from the wife’s investments was insufficient to account for all the deposits, and the husband refused to swear that all the deposits belonged to the wife, but stated merely that they were “principally hers,” the court was not in error in submitting to the jury the question of the ownership of the fund.
    2. Same — Accession and Confusion.
    One who, with his wife’s knowledge and consent, mingles his own funds with hers in a bank, with the understanding that the entire fund shall be treated as his, renders the entire fund subject to garnishment for his debt.
    3. Same — Bank Checks.
    The giving of a check, drawn in the ordinary form, against funds on deposit in a bank, does not, before the acceptance of such check, amount to an equitable assignment of the amount of the check, so as to prevent its garnishment as money of the drawer.
    Error to Berrien; Coolidge, J.
    Submitted October 8, 1897.
    Decided December 15, 1897.
    Garnishment proceedings by John L. McIntyre against the Farmers & Merchants’ Bank, as garnishee of Isaac R. Dunning, and Julia A. Dunning, impleaded as claimant of the fund.- From a judgment for plaintiff, defendant bank brings error.
    Affirmed.
    Plaintiff, after obtaining a judgment against the defendant Isaac R. Dunning, sued out a writ of garnishment against the garnishee defendant. Its disclosure showed $125.93 in the bank, standing in the name of Mr. Dunning, and that the bank was informed by him that the money was the property of his wife. She was then impleaded, issue joined, trial had before a jury, and a verdict rendered for the plaintiff. The errors assigned are:
    (1) That the court should have directed a verdict for the defendant, for the reason that there was no evidence to dispute Mrs. Dunning’s title to the property.
    (2) That the court erred in instructing the jury that, if she gave the money to her husband, then it belonged to him, and was subject to garnishment.
    (3) That the court erred in instructing the jury that,' if the money of the husband and wife was mingled in such a way that it was impossible to distinguish what was his and what was hers, the plaintiff was entitled to recover.
    (4) That two checks drawn by Mr. Dunning prior to the issuance of the writ of garnishment, but not presented and paid until after the service of the writ, were assignments, pro tanto, of the fund.

      G. M. Valentine, for appellant.

      Gore & Harvey, for appellee.
   Grant, J.

(after stating the facts). 1. We cannot concur in the contention that the proofs conclusively showed that the money belonged to Mrs. Dunning. The entire bank account, extending from April, 1893, to February 2, 1896, was in evidence, and stood in the name of Mr. Dunning. He did not swear that all these deposits belonged to his wife. He said they were “principally hers.” When asked if he would swear that he never made a deposit of his own money, he replied: “Not exactly. The money that was deposited there was deposited for her.” Nearly all the investments from which she received an income were made with money received from him. The income from^ her inyestments was not sufficient to account for all the deposits. From these facts, as well as others, it is clear that the testimony of Mr. and Mrs. Dunning that the money was hers, and was deposited for her, was not conclusive. The facts were in apparent contradiction of their testimony. In such case the question was for the jury.

2. While there was no direct testimony that she gave money to him which she received from her investments, yet the facts and circumstances would justify the conclusion that she gave it to him to be used as his own.

3. There was evidence from which the jury might very properly infer that he, with her knowledge and consent, mingled his own funds with hers in the bank, with the understanding that the entire fund was to be treated as his own. If this were so, then the fund was subject to garnishment for his debt. In reply to the question whether he mingled his own money with his wife’s, he replied, “Not to any extent.”

4. The checks did not operate as equitable assignments of the fund. Grammel v. Carmer, 55 Mich. 201 (54 Am. Rep. 363); 2 Am. & Eng. Enc. Law (2d Ed.), 1065. The rule is there stated as follows:

“The doctrine which prevails in England, and is sustained by the weight of authority in the United States, is that an unaccepted check, drawn in the ordinary form, not describing any particular fund, or using words of transfer of the whole or any part of any amount standing to the credit of the drawer, is of the same legal effect as a bill of exchange, and does not amount to an assignment, at law or in equity, of the money to the credit of the holder, but is simply an order which may be countermanded, and the payment of which may be forbidden by the drawer, at any time before it is actually cashed.”

It follows that the writ of garnishment, having been served before the presentation of the checks, entitled the plaintiff to have the fund applied upon his judgment.

The judgment is affirmed.

The other Justices concurred.


text:
    McPHERSON v. BRISTOL.
    1. Partnership — Nontrading Firm — Commercial Paper.
    One partner in a nontrading partnership cannot bind his copartners by a note given by him in the firm name, although for a debt due from the firm, unless he has express authority from his copartners, or the giving of such note is necessary to carry on the firm business, or is usual in similar partnerships; and any liability founded upon a holding out of the partnership relation is necessarily limited by this rule.
    3. Same — Erroneous Instructions.
    A correct instruction as to the liability of a member of a nontrading firm with respect to commercial paper executed by his copartner will not cure the error of the circuit judge in ignoring, in the charge as a whole, the distinction between trading and nontrading firms.
    Error to Livingston; Smith, J.
    Submitted October 8, 1897.
    Decided December 15, 1897.

      Assumpsit by William McPherson, Jr., and Alexander McPherson, against John Bristol, impleaded with J. S. Day, upon a promissory note. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      William P. Van Winkle and W. E. Scott, for appellant.

      Louis E. Howlett and Judd Yelland, for appellees.
   Montgomery, J.

This action is based upon a promissory note made to one C. L. Cook or bearer, and signed by J. S. Day and John Bristol. The defendant Bristol denied the execution of the note under oath, and the question of his liability depends upon the question of whether he and Day were partners, and whether Day had authority to bind him by giving the note in question. The facts seem to be that in 1895 the two defendants joined in the lease of a fruit farm, and engaged in the business of raising fruit. The lease was for one year, with the privilege of three. Day went to live on the farm, and Bristol lived on-a farm of his own near by. They did not ^ own teams or tools jointly. Bristol supplied whatever tools or teams he used, and Day did the same, up to about the time of the making of the note in question. There is some evidence tending to show that a foreman was employed, and during the summer of 1896 so-called “checks” were issued to the pickers of the fruit, stating the number of quarts picked each day, in the name of Day & Bristol. The fruit packages were stamped “Day & Bristol,” but sales of the fruit were generally made in the names of the individual parties. There is some slight evidence tending to show that, in addition to the business of raising and shipping berries, the parties bought and sold fruit; that is, by the testimony it appears that Day bought a quantity of huckleberries to sell with his other fruit, and, by the testimony of one witness, it would appear that Bristol had knowledge of this fact, and there is possibly enough to have permitted the jury to draw the inference that it was a part of the business of the firm.

On the 24th of June, 1896, the note in question was given, the consideration being a horse at $125, and $25 in money. There is no evidence that Bristol authorized the giving of this note. One witness testifies that she overheard a conversation between Day and Bristol, in which Day stated that it would be necessary to buy a horse, and Bristol replied that, if they bought a horse, it should be a good one, so that they could sell it again. This is denied by the defendant Bristol. There is also testimony of some statements of Bristol which were brought home to the knowledge of Cook, the payee in the note, to the effect that'he (Bristol) and Day were in partnership in the fruit business.

It will be seen that, upon this state of the evidence, the questions presented were:

1. Was there a partnership in fact?

2. If there was no partnership in fact, was there such a holding out to the world as to justify those dealing with the members in believing that such a partnership existed ?

3. If there was a partnership in fact, was it a trading or nontrading partnership ?

4. If there was such a holding out, was it a holding out of the firm which justified strangers in believing that authority existed to execute the note in question ?

The distinction between nontrading firms and commercial partnerships is well recognized in the law, although this court, so far as we have been able to ascertain, has never had occasion to discuss the matter at any length. In nontrading firms one partner does not generally possess the power to bind the partnership by way of contracting debts and executing commercial paper. In the case of such partnerships it must affirmatively appear that the partner had the power to make the contract in question. The power to make commercial paper by a member of a nontrading firm exists only when it is expressly conferred, or when the giving of the paper is necessary to carry into effect an original purpose for which the partnership was formed. See 17 Am. & Eng. Enc. Law, 994, 1008, 1018, 1026.

The case of Smith v. Sloan, 37 Wis. 285 (19 Am. Rep. 757), is an instructive case on this point, and contains a careful review of the American and English authorities; and the conclusion reached is that a partner in a nontrading partnership cannot bind his copartner on a bill or note drawn, accepted, or indorsed by him in the name of the firm, not even for a debt which the firm owes, unless he has express authority from his copartner, or unless the giving of such instrument is necessary to carry on the firm business, or is usual in similar partnerships, and that the burden is upon the holder of the note who sues upon it to prove such authority, necessity, or usage. The learned circuit judge, in his charge, recognized this rule, and charged the jury that in noncommercial partnerships, in order to hold the firm, it must be affirmatively establisted that the partner had power to make the contract in question, and, further, that in nontrading partnerships one partner has no implied power to bind the other partner; but, in another part of his charge, the circuit judge charged the jury as follows:

“Now, in this case there are two theories upon which this defendant can be held liable. One is that, as a matter of fact, at the time of the execution of this note in question, on the 24th day of June, 1896, Mr. Day and Mr. Bristol, the defendants, were actually and in fact copartners, and so understood by themselves and between themselves that they were such copartners; that each of them contributed either capital or labor, credit, or skill and care, or two or more of these; and that all the contributions were put together in a common stock or a common enterprise, to be used for the purpose of carrying on business for a common benefit. If, as a matter of fact, at that time such a partnership existed, then Mr. Bristol would be liable on this note. Day would have authority to sign and execute it, and bind him, and it would not be important whether it was held out to the world that they were partners or not; or whether Mr. Cook knew it or not. That is one theory. The other theory of recovery is that Mr. Bristol had permitted Mr. Day, or done such acts himself, or knowingly or understandingly permitted it to be held out to the world that himself and Day were partners, and that knowledge of that fact had come home to Mr. Cook in taking this note; even though it turns out in truth and in fact that they were not partners, yet Mr. Bristol would now be estopped from showing a lack of partnership between them, and he could not escape the payment of any indebtedness as contracted by this note given between them and Cook.
“I say, then, there are two theories in this case. A partnership in fact may be formed, and can only exist as between the parties themselves, in pursuance of an express or an implied agreement, to which the minds of the parties have assented. The intention or even belief of one party alone cannot create a partnership without the assent of the others. That is a partnership in fact that I refer to now. But, as to third persons, parties may so conduct themselves as to be liable to third persons as partners, when in fact no partnership exists as between themselves. I now refer to commercial partnerships, and not to non. trading partnerships. ■ The public are often called to judge by appearances and actions, and are not bound to any real facts. Parties might be copartners as to third persons, and brought within the liability of partners as to third persons, — I mean commercial partners, — who are not partners as between themselves, yet they will be so regarded as to third persons if they voluntai’ily and knowingly so conduct themselves as to reasonably justify the public or persons dealing with them in believing they are partners.
“There has been some evidence offered here in relation to the general notoriety of the copartnership; that is, the general report and common understanding in the village of Howell, where Mr. Cook lives. Now, you cannot consider that evidence at all in determining whether there was an actual partnership existing between these parties. An actual partnership, or partnership in fact, cannot be proven in that way; but you can only consider such common report and general understanding as bearing on the question of whether Mr. Cook was warranted in believing from the acts of Bristol, through Day, or on his own account, — reasonable belief, I mean, — -that there was a copartnership existing. If a person voluntarily and knowingly holds himself out by his acts or language, to the public or to third persons, as a partner of another, and if any third person deals with that other because of belief in an existing partnership, then the person so holding himself out will be liable as a partner to the person so dealing, notwithstanding, in fact, there was no such partnership.
“If you believe from the evidence that prior and up to the time the note introduced in evidence in this case was given, the 24th of June, 1896, Mr. Bristol voluntarily and knowingly allowed and permitted the business of the firm of Day & Bristol to be conducted in such a way as to justify the public in general, and Mr. Cook in particular, and persons dealing with the firm, in supposing and believing that Mr. Bristol was a member of the firm; and that Mr. Cook, before and at the time he sold the goods (the horse), lent him money,,and took the note in question, was led to believe, and did believe, from the manner in which the business ivas conducted, that Mr. Bristol was a member of the firm, — then plaintiffs will have a right to hold Bristol liable for the note as a member of the firm; and in such a.case it is immaterial whether Bristol made representations personally to Mr. Cook that he was a member of the firm or not. I apprehend that the underlying principle of that rule is this: That, where one of two parties must suffer a wrong, the law throws the burden of the suffering upon him who had it in his power to prevent the wrong, and failed to do so.”

It is probable that the circuit judge intended these instructions to be limited by the other instructions relating to the liability of partners in nontrading firms; but we think the language was not sufficiently guarded. All the conditions named in the instruction of the court as requisite to constitute a partnership, viz., the contribution of capital or labor to the common enterprise, might concur in a nontrading partnership as well as in a trading firm; and the instruction, “If such a firm existed at the time the note was given, Mr. Bristol would be liable,” is entirely too broad. Furthermore, as appeared by the facts of this case, the instruction as to the holding out should be qualified. While there is evidence tending to show that it was held out to the community that Day and Bristol were partners, and while the evidence would indicate that they were partners in fact, neither would justify the instruction that Day had the right to give the note in question, and bind Bristol. This nullifies and ignores the distinction between a commercial and a nontrading partnership. If a nontrading firm is not prima facie liable upon a note given by one of its members, it is clear that the bare fact that the members of the association permit it to be understood that it is a nontrading partnership does not justify a person dealing with the firm to infer an authority to execute commercial paper.

The other questions presented in the record are not likely to arise on a new trial, and we pass them by with the suggestion that in some instances the witness Griffith was permitted to testify to inferences rather than facts, which error can be corrected on a new trial.

Judgment will be reversed, with costs, and a new trial ordered.

The other Justices concurred.


text:
    DUFFY v. WHITE.
    1. Warranty Deed — After-Acquired Title.
    A deed containing covenants of warranty is effective to'convey a title subsequently acquired.
    2. Husband and Wife — Condonation—Consideration for Deed.
    The condonation of a wife’s adultery, and her restoration to conjugal rights, afford a sufficient consideration for her deed to her husband.
    3. Conflict of Laws — Real Estate — Lex Situs.
    The legal status of persons in relation to real estate is to be determined by the law of the place where the lands are situated.
    4. Husband and Wife — Separation —Agreement to Resume Marital Relations — Validity.
    An agreement between a husband and wife, who have separated because of the adultery of the latter, providing for a resumption of marital relations in consideration of a conveyance of land by the wife to the husband, to be held in trust for the wife and their minor child, with a provision that, if she is subsequently guilty of flagrant misbehavior or desertion, the husband shall be immediately released frorp all obligations and from all liability to her under the agreement, is not void as against public policy, where the circumstances under which it was made justify the restriction of the term “flagrant misbehavior or desertion ” to such as would be ground for divorce.
    5. Same — Unconscionable Contract.
    Nor can such an arrangement be said to be unconscionable, at least where the husband signifies his willingness to waive the provision for a forfeiture of the interest of the wife.
    Appeal from Wayne; Steere, J., presiding.
    Submitted October 12, 1897.
    Decided December 15, 1897.
    Bill by Rebecca M. (White) Duffy and Edward P. Duffy, trustee, against Elmer L. White and Margaret Sara White, an infant, to set aside a trust deed. Defendants severally answered, claiming the benefit of a cross-bill. Prom a decree for complainants, defendants appeal.
    Reversed.

      Edward E. Duffy (T. A. E. & J. C. Weadock, of counsel), for complainants:
    The condonation of the wife’s offense, and her restoration to conjugal rights, would not constitute a legal consideration for her deed to her husband. Merrill v. Peaslee, 146 Mass. 460 (4 Am. St. Rep. 334); Miller v. Miller, 78 Iowa, 177 (16 Am. St. Rep. 431); Van Order v. Van Order, 8 Hun, 315; Roberts v. Frisby, 38 Tex. 219; Copeland v. Boaz, 9 Baxt. 223 (40 Am. Rep. 89).

      Bethune Duffield (Henry M. Duffield, of counsel), for defendant Elmer L. White:
    To the contrary of the foregoing proposition, counsel cited: Reithmaier v. Beckwith, 35 Mich. 110; Rozell v. Redding, 59 Mich. 331; Redding v. Rozell, Id. 476; Newsome v. Newsome, L. R. 2 P. & D. 306; Jodrell v. Jodrell, 9 Beav. 45; Adams v. Adams, 91 N. Y. 381 (43 Am. Rep. 675); Burkholder’s Appeal, 105 Pa. St. 31; Wilson v. Wilson, 1 H. L. Cas. 538, 574, 5 H. L. Cas. 40; Hart v. Hart, 18 Ch. Div. 670, 685; Sterling v. Sterling, 12 Ga. 201, 204.

      William F. McCorkle, for infant defendant.
   Hooker, J.

The complainant Rebecca M. Duffy married the defendant Elmer L. White, at Bucyrus, Ohio, in 1886, and took up her residence at Pittsburg, Pa., with him. She was the daughter of on6 Kearsley, of the former place, and was the owner of a contingent remainder in fee of an estate, under a will made by her grandfather, which gave to her father a life estate in said property, with remainder to his (her father’s) legitimate issue, if he should leave any; otherwise to his (the testator’s) grandchildren, share and share alike. Her father is still living, and has possession of the property. The parties mentioned lived together as husband and wife until June, 1891, at which time the husband sent his wife to her father, and declined to live with her longer unless she should assent to certain conditions. He professed to have discovered her infidelity. Both parties had competent legal counsel, and the complainant Mrs. Duffy (then White) was advised not to consent to the conditions which he at first imposed, which contained a confession of her adultery. This was eliminated, and on August 15, 1891, at the home of the parties, in Pittsburg, in pursuance of a verbal agreement made at Bucyrus, she executed a conveyance of all of the property in question to one Joseph Mackin, a minor. This instrument was a full warranty deed, except as against the father’s life estate, and without condition, but was made with the understanding that Mackin should act as the channel through which the legal title to the property should be conveyed to Elmer L. White for the purposes mentioned in an agreement executed at the same time. In fact, Mackin executed and delivered a deed to White at an earlier hour upon the same day, and never had possession of the deed from Mrs. White. This deed from Mackin was an unconditional deed of bargain and sale, and contained covenants of warranty. It was not like a quitclaim deed, which, as it professes to convey only an existing interest, is ineffective to convey a title subsequently acquired; and neither Mackin nor the complainants can deny its effect as a conveyance of the title, though it was acquired after his deed was delivered to White. Shotwell v. Harrison, 22 Mich. 410; Lee v. Clary, 38 Mich. 223; Smith v. Williams, 44 Mich. 240; Haney v. Roy, 54 Mich. 635; Brayton v. Merithew, 56 Mich. 166; La Coss v. Wadsworth, Id. 421; People v. Miller, 79 Mich. 93; Pendill v. Agricultural Society, 95 Mich. 491; Naylor v. Minock, 96 Mich. 182 (35 Am. St. Rep. 595); Ryan v. U. S., 136 U. S. 68.

Á trust agreement was executed by White and his wife at the same time that the deed to Mackin was executed, a copy of which agreement is as follows:

“Memorandum of agreement between Elmer L. White, of the city of Pittsburg, county of Allegheny, and State of Pennsylvania, party of the first part, and Rebecca M. White, his wife, party of the second part, is as follows:
Whereas, an estrangement and separation has recently taken place between said parties, which, for the sake of their minor child, they have agreed to terminate, and resume marital relations; and whereas, they have deemed it advisable to reduce the terms of said reconciliation to writing, in order that there may be no misunderstanding in future in regard thereto; and tohereas, said Rebecca M. White is the owner, in her own right, of certain valuable real estate and property, situated in the State of Michigan, subject, however, to the life estate therein held by her father, Edmund R. Kearsley, of Bucyrus, Ohio, and which said property they have agreed to devote to the common benefit of themselves and of their minor child, Margaret Sara White, as hereinafter provided:
“Now, this agreement witnesseth, in consideration of one dollar to each in hand paid, receipt whereof is hereby acknowledged, and the covenants and agreements hereinafter set forth, said parties agree each with the other as follows:
“First. Said second party, for a nominal consideration, is to convey forthwith all of said property to Joseph F. Mackin, of Pittsburg, Pennsylvania, as depositary, who shall, for a nominal consideration, reconvey the same to Elmer L. White. Said conveyances are to be absolute in their terms (reserving, however, the life estate of said Edmund R. Kearsley, as above set forth); but the estate thereby conveyed to the said Elmer L. White shall, as a matter of fact, be merely a trust “estate for the uses and purposes herein set forth, and this agreement shall be considered as a part of the consideration therefor.
“Second. Said second party further agrees to attempt no extravagances or unnecessary expenses of any kind, and to accept willingly such amount as said Elmer L. White may be able to expend for her maintenance and comfort, and in such sum or sums, and upon such terms, as are hereinafter set forth.
“Third. Said second party is to live wherever said Elmer L. White may desire to establish a home, and to offer no unreasonable objections to his choice and selection thereof.
“Fourth. Said party of the first part, upon delivery to him of said deed and upon the execution of this agreement, does hereby undertake and agree as follows: (a) To provide for his family a comfortable and substantial home in such place as he may decide is for his best interest and that of. his family, and in accordance with his means and his income. (b) To provide for the reasonable wants and maintenance of his said family out of his own means, in an amount not exceeding, however, the sum of $3,000 per annum, until the termination of the life estate of said Edmund R. Kearsley in the property this day conveyed to him, above referred to, and the collection by him of the income therefrom, (c) Erom the income of the said property collected by him, and after the payment of all necessary disbursements, including taxes, commissions, insurance, repairs, etc., in connection therewith, said first party is to deposit monthly one-half thereof to the credit of the said party of the second part, in such bank,as she may select; and, immediately upon such payment to her, said second party is to waive and relinquish all claims "upon party of first part for support and maintenance out of his own private funds. (d) The remaining one-half of said net income is to be applied by the party of the first part for the maintenance and education of said minor child, and for his compensation and services in the management of said property, (e) Said party of the first part is to have full authority and discretion in the care, improvement, and management of said property, even to the sale, incumbrance, alienation of all or part thereof, and the reinvestment of the proceeds arising therefrom.”

It was duly acknowledged and authenticated.

At this point it should be stated that we find from the evidence that the complainant Mrs. White had, by reason of her adultery, given her husband abundant cause for declining to continue the marriage relation. The execution of the paper mentioned was followed by the resumption of the marital relation, which continued until March, 1894, when the husband found conclusive evidence of her misconduct with different men. He then left the house, and commenced proceedings for divorce. About this time she availed herself of the, good offices of one Martin Duffy, a policeman, who introduced her to his brother, a lawyer, who is a complainant with her in this case; and he began a suit for her against White, in relation to the home of the parties, and, upon a settlement, White paid to him $7,500, and she agreed that White should have the custody of their child. In February, 1895, Edward Duffy, with Mrs. White’s approval, it is said, persuaded Mackin to give him a conveyance of the premises; taking an unqualified deed, with full covenants of warranty. Mrs. White, about this time, eloped with Martin Duffy, and lived with him at various hotels about the country for about two years, when, if she is to be believed, she married him. This bill was filed by Mrs. White and Edward Duffy to set aside the instruments executed on the 15th of August, 1891, upon the ground that Mrs. White executed them by reason of the coercion of her husband, and without knowledge of their contents. It was further alleged, in an amended bill, that Mackin had no title when he executed the deed to White, as it was previous to the execution of the deed by Mrs. White to him, and that he had, at her request, subsequently made a deed of the premises to Duffy, who on “February 5th, or a short time thereafter, executed a declaration of-trust in her favor.”

Mrs. White is the main witness offered on behalf of the complainants, and we find ourselves unable to place any reliance upon her statements, except as they may be corroborated, or are plainly against her interest. From the other testimony, we conclude that, after Mrs. White .was sent to her father, her husband was called to Bucyrus by a telegram from her, which was repeated one or more times before he went; that she besought him to forgive her, and that he refused, except upon condition-that she should put her property in his hands, where it should be saved from dissipation through her extravagant habits, for the benefit of the daughter and herself, and as a restraint upon her. He left a copy of the proposed document with her, and she consulted counsel concerning it, and subsequently agreed, orally, to the conditions imposed, with the modification before mentioned. Thereupon White took her and her daughter to Pittsburg, but refused to cohabit with her until she should execute the writings, which she did. We have no doubt that he refused to live with her unless she should do so, and in that sense,' and no other, she submitted to coercion. We have no confidence in her version of what occurred that night, in which she is contradicted by all present.

Two questions are presented:

1. Was this contract based upon a valid consideration, and was it one within her power to make ?

2. If so, was it an unconscionable contract ?

It has been held in this State that a conveyance of property by a husband to .his wife in consideration of the discontinuance of a meritorious suit for divorce, and the resumption of marital relations, was upon a valid and sufficient consideration; and the same has been held elsewhere, almost without exception. See Rozell v. Redding, 59 Mich. 331; Reithmaier v. Beckwith, 35 Mich. 110; Adams v. Adams, 91 N. Y. 381 (43 Am. Rep. 675); and other cases cited in the defendants’ brief. The case cited from New York expressly holds that the discontinuance of the cause, thereby waiving her right to costs, and the condonation of the offense, whereby her right to divorce was waived and lost, were a sufficient consideration to support the agreement. The authorities are not uniform as to the effect of mere condonation, where no suit for divorce had been commenced, though the weight of authority supports that proposition, also; and the leading case in support of an opposite view (i. e., Merrill v. Peaslee, 146 Mass. 460, 4 Am. St. Rep. 334), received the approval of a bare majority of the court. The cases are collected in the briefs of counsel.

The lands in controversy are in the State of Michigan, and the law of this State must therefore govern as to the legal status of the husband and wife in relation thereto. They were her separate property, and might be lawfully conveyed by her, through a trustee, to her husband, or by deed directly to him.

We may next examine the contract of the parties, to ascertain whether it contains any provisions that make the transaction void. As to the acknowledgment and the separate examination required by the law of Pennsylvania, it is enough to say that we discredit the testimony of tlie complainant, contradicting the certificate of the notary.

It is next contended that the agreement is against public policy, and void, because it is an agreement between husband and wife, “looking to and favoring their future separation.” The parties had separated, and the arrangement was for a resumption of relations which would restore to Mrs. White a conjugal claim upon her husband, which she had forfeited. The following clause is the one alleged to be against public policy:

“Fifth. It is distinctly understood and agreed, however, by and between the parties hereto, that, in the event of the flagrant misbehavior or desertion on the part of the said party of the second part, said party of the first part may immediately consider himself released of and from all obligations as husband of said Rebecca M. White, and from all liability to her under the terms of this agreement; and in such event said Rebecca M. White hereby agrees to waive and relinquish all claims upon her said husband or his estate for support, dower, or maintenance, as well as all claims to the custody of said minor child, and her share of the income of said property shall be then appropriated by said E. L. White.”

This was a Pennsylvania contract, and is to be construed according to the law of that State, whose courts have upheld contracts similar to this one. Such a case will be found in Burkholder’s Appeal, 105 Pa. St. 31. The contract in that case provided, among other things, for the payment of certain sums in case of a subsequent separation. The case arose after the termination of the marriage by death, and the contract was enforced. The court said, upon this point: “If we concede it to be

against the policy of the law, it does not affect the case. No attempt was made to enforce it, and, under the facts as they exist, no such attempt could have been made.” The provision in the contract in the present case is peculiar. It does not offer any premium to the wife to bring about a separation. On the contrary, it places a penalty upon it. So it cannot be said to be a contract “looking to and favoring a separation.” at her instance. As*to the husband, it does not enlarge his right to a separation beyond that given by law, if we construe the contract in the light of surrounding circumstances. A proper inference from •its provisions, and the circumstances under which it was made, justify us in a restriction of the term “flagrant misbehavior or desertion” to such as would be ground for divorce. If this claim does not enlarge his rights beyond those existing by law, we do not see how it can be said that the provision was illegal and void as against public policy. The following cases seem to support this view. In some of them, though the provisions are held invalid, prominence is given to the fact that any separation is within their terms: Cocksedge v. Cocksedge, 14 Sim. 244; Earl of Westmeath v. Countess of Westmeath, Jac. 140; Nicholl v. Jones, 36 Law J. Ch. 554; H. v. W., 3 Kay & J. 382.

This brings us to the question whether the arrangement was unconscionable. In the case of Rozell v. Redding, 59 Mich. 337, a husband conveyed to his wife their homestead, in consideration of her discontinuance of a pending suit for divorce, and the resumption of the marital relation. The parties afterwards separated, and he sought the cancellation of the deed. In that case, although the court seems to have been of the opinion that she did not act in good faith, it held that it was doubtful if he would be entitled to relief if he had kept himself clean and blameless, and that, at all events, his subsequent misconduct precluded the court from balancing equities between them; and his bill was dismissed. That case differs from this in some particulars. Here it was the wife who deeded the property to the husband. There the husband deeded to the wife. Presumably, the amount of the property conveyed is larger in this case than in that, though it was not all of her property in this case, while it may have been all of the husband’s property in that case. On the other hand, the conveyance was without condition in that case, while in this it was in trust for the benefit of the wife and child; and the interests of the wife were much more likely to be protected and preserved under the contract than if left to her own control, if she performed her undertakings by living a blameless life. We can find nothing unconscionable in this transaction, if the wife had lived up to her contract. It was only when she committed further wrongs against her husband and society that there was an opportunity for such claim. So long as she lived with him, she was entitled to one-half of the income of the estate, and the other half was to be used for the benefit of her child and husband..

But it is urged that the provision which is called the “forfeiture clause” has the effect of stripping the iVife of all interest in her estate, and is a hard bargain; and it is true that, in the event of her misconduct, she was to have no share in the income. It is said that the consideration was grossly inadequate for such an agreement, and the case is likened to a “catching bargain,” where a remainder-man or other person is, through necessity, induced to part with a future estate for a small fraction of its value. We do not take the view that the sacrifice made by this defendant is a small one, that, if to be compensated at all, is fully paid for by a trivial sum. It is one of those cases where money is not an adequate compensation, as the annals of our criminal courts abundantly prove; and, were Mrs. White’s various paramours before a court of law as defendants in actions for the invasion of the home of the defendant, it is quite likely that a substantial sum would be found to be the price set upon the injury which he has condoned. Mr. White, apparently in good faith, lived with his faithless wife for several years after, when he was again subjected to disgrace and ignominy. In that, this co-complainant’s brother participated ; and Edward Duffy himself was ready to aid in the attack upon the husband, and quick to take a conveyance of all her interest in this property, in his own name, upon conditions (if there were any) which did not come to light until after the suit was begun.

It is claimed upon behalf of the defendants that the principal motive of Mr. White in securing the conveyance was to preserve this property, for the benefit of all of the parties, against her well-known extravagance and possible profligacy. If it does nothing else, the dénouement shows that his fears were not groundless, and the necessity of some action in this direction. We may say that a safer contract could have been made, in that security for the performance of the trust'might have been provided. Again, the alleged forfeiture clause might have been omitted; but as the defendant asserts that he has no disposition to enforce it, and consents to waive it, we may take care of that in the decree, without determining whether the instrument should be held unconscionable on that account or not, though we may say that neither of these complainants comes here with clean hands, and the case might justly be left to rest upon Rozellv. Red-ding, supra, as to them.

It is therefore ordered, adjudged, and decreed that the decree of the circuit court be reversed, and that the property involved in this suit be and remain a trust fund in the hands of said Elmer L. White, in accordance with the terms of said trust agreement, except that portion of the same which provides for the forfeiture of the share of the wife, which, by the terms of said instrument, was to be paid to her. It is further ordered that a copy of the decree in this cause, and the writing aforesaid, be recorded by the defendants in the register’s office of each and every county where any portion of said property is situated, and that, in case of a failure so to do, the complainants may see that the same is done. The defendants will recover costs of both courts.

The other Justices concurred.


text:
    PAWLOWSKI v. JENKS.
    1. Malicious Prosecution — Probable Cause — Advice of Counsel.
    The advice of counsel, given after a full statement of the facts, to the effect that his client has a meritorious case, in the absence of testimony impugning the good faith of the latter, establishes probable cause for instituting suit, and will defeat an action for malicious prosecution.
    2. Councilmen — Official Action — Approval of Liquor Bonds,
    The action of a member of the common council of a village in refusing to approve liquor bonds cannot be reviewed at the suit of persons claiming to have been injured thereby
    Error to Wayne; Hosmer, J.
    Submitted October 13, 1897.
    Decided December 15, 1897.
    Case by Prank Pawlowski against George W. Jenks for the malicious prosecution of a civil suit, and for his refusal, as a member of the common council, to approve plaintiff’s liquor bond. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      William Stacey and Joseph R. Nolan, for appellant.

      John F. Murphy and Bacon & Palmer, for appellee.
   Montgomery, J.

In November, 1891, the defendant and Jeremiah Jenks commenced a suit in the circuit court for the county of Huron, in chancery, to restrain the plaintiff from carrying on the business of selling intoxicating liquors in a certain building owned by him in the village of Sand Beach. The suit was based upon a clause in the deed prohibiting the grantees from carrying on such business. A preliminary injunction was issued, issue was joined in the case, and the testimony was taken in open court; and on the 3d day of November, 1892, a decree was rendered in favor of the, complainants in that case, perpetually enjoining the plaintiff from carrying on the sale of liquors upon said premises. The case was after-wards appealed by Pawlowski to the Supreme Court, and the decree was reversed and the bill of complaint dismissed; the case being reported in 98 Mich. 110. Subsequently the plaintiff brought this action against the defendant to recover damages for the malicious prosecution of the suit in chancery, and also for the action of the defendant, as councilman of the village of Sand Beach, in refusing to approve plaintiff’s liquor bonds. The case was tried before Hon. George S. Hosmer, circuit judge, who directed a verdict for the defendant. Plaintiff brings error.

The evidence on the trial showed that all the facts were stated by defendant to his counsel before the chancery suit was instituted, and that he was advised that the complainants in that suit had a meritorious suit. ' This testimony is uncontradicted, and there are no circumstances which authorize an inference that defendant did not act in good faith. Under such circumstances, the advice of counsel made out a case of probable cause. Le Clear v. Perkins, 103 Mich. 131; Poupard v. Dumas, 105 Mich. 326.

Plaintiff’s counsel contend that probable cause, cannot exist where good faith is lacking, and cite Harris v. Woodford, 98 Mich. 147. In that case it was said, “An instruction that probable cause cannot exist where good faith is lacking may be proper in a case which admits of the question.” This may be so stated in this case, but, before the force of the testimony showing probable cause —as by advice of counsel after a full statement — can be broken, there must be some testimony impugning the good faith of the defendant, as was distinctly held in Harris v. Woodford. There is no such testimony in this case.

The action of the defendant as a member of the common council of Sand Beach cannot be made the basis of a recovery. His decision on the question of the approval of the bond of plaintiff required the exercise of judgment, and it would be intolerable that his action be reviewed at the suit of parties claiming to be injured thereby. Amperse v. Winslow, 75 Mich. 234.

Judgment affirmed.

The other Justices concurred.