author: McAlvay, J. Ostrander, J.

text:
    DANLEY v. JEFFERSON.
    Wills — Revocation—Revival—Verbal Declarations — Sufficiency.
    Where a'will is revoked by the execution of a subsequent one containing a revocatory clause, it cannot be revived by the destruction of the subsequent will and an express verbal declaration by testator before witnesses that he desires the prior will to stand. MoAlvay and Moore, JJ., dissenting.
    Error to Oakland; Smith, J.
    Submitted April 16, 1907.
    (Docket No. 131.)
    Decided January 6, 1908.
    Forrest R. Danley presented for probate the last will and testament of Edwin B. Jefferson, deceased. The will was allowed in the probate court, and William W. Jefferson appealed to the circuit court. There was judgment for contestant on a verdict directed by the court, and proponent brings error.
    Affirmed.

      Rockwell & Zimmermann, for appellant.

      Patterson & Patterson and M. B. Farrington, for appellee.
   McAlvay, J.

On October 6, 1905, Edwin B. Jefferson, of the age of 73 years, made his last will and testament, disposing of all of his estate. It is unnecessary to set forth this instrument, as no question is raised as to its provisions, or the regularity of its execution. It contained a clause revoking all former wills. Proponent, a nephew of deceased, was named executor. This will was signed by the testator and witnessed at the banking office of Mr. Jossman, in Clarkston, Michigan, where he resided. This will remained in the bank with testator’s other papers until seven or eight weeks later, when he requested Mr. Jossman to come to his house, saying that he •desired to make another will. The second will was drawn as testator directed. The first will was used as a guide and but one material change was made. When the second will was made the first one was left with the testator and the second was kept at the bank. The second will named the same executor as the first, and contained a clause revoking all former wills.

On February 20, 1906, the testator, who at the time^ was stopping at the house of his cousin Mrs. Helen Beach in Clyde, requested proponent to go to the bank at Clarkston and upon his written order get him this second will. Proponent, accompanied by Mr. Beach, went to Clarkston and received the will from the bank, and also went to testator’s house in the same village and got the first will for him from his family Bible, where it had been kept. They brought both wills and gave them into his hands. Testator then stated that he had done wrong in cutting out Mrs. Beach, and he wanted to correct it by destroying the last will and letting the other stand, in which Mrs. Beach was mentioned. He took both wills and examined them closely, reading them through. He then gave proponent the last will, directing him to burn it. After the last will was burned testator put the first will in its envelope and sealing it handed it to proponent saying, “hold the will, because that is the will I want executed.” Four persons were present at the time of this occurrence, two of whom were not interested. It was admitted that all of them would testify to these facts as here related. The earlier will is the one contested in this suit. Upon these undisputed facts, at contestant’s request, the trial judge directed a verdict in his behalf. Proponent assigns error upon such direction. A motion for a new trial was denied, upon which error is also assigned. Proponent asks this court to reverse the judgment of the circuit court.

There is but one question in the case, whether a will once revoked by an express revoking clause in a later will can be revived on the destruction of the later will where the prior will has been carefully preserved by the testator, and where the testator, in the presence of disinterested witnesses, solemnly and deliberately directed that the later will be burned, and at the time of its destruction directed the executor to hold the prior will, declaring that it was the will he wanted executed, and at the same time giving his reasons for such action and direction.

It is insisted on the part of the proponent that this is a new question in this State, and that the cases cited and relied upon by contestant, viz., Scott v. Fink, 45 Mich. 241; Stevens v. Hope, 52 Mich. 65; Cheever v. North, 106 Mich. 890 (37 L. R. A. 561), are distinguishable from the case at bar; that in all of these cases the claim in support of the prior wills was that the destruction of the later wills, ipso facto, revived the earlier; that in none of these cases does it appear that upon the destruction of a later will there was any act or declaration on the part of testator tending to show an intent and attempt to revive and republish the former will. Upon this proposition alone proponent rests his case.

This court has decided in Scott v. Fink, supra, which has since been frequently cited and approved, relative to the revocation clause in a later will:

“ It is a verbal act done solemnly and deliberately for present effect, and not an act contemplating that future circumstances are to determine whether after all it shall have any force. It is not a needful ingredient of the will. That is perfect without it. The addition of it is a mode of immediate cancellation of prior wills, and quite as unequivocal and unambiguous as many others within the statute whose meaning is open to no controversy. It operates at once, and does not apply as a mere contingent caveat against the objects át which it is aimed. It revokes them without reserve or qualification. And in case the document with which it is connected is itself revoked, that fact can have no effect as a restoration and republication of former revoked wills.”

In Cheever v. North, supra, Justice Montgomery, speaking for the court, said:

“There is an irreconcilable conflict of authority upon the question of the effect of the destruction of a second or subsequent will upon an earlier one. The great weight of authority is to the effect that the execution of a subsequent will, containing an express clause revoking the former will, operates as a revocation at once, and that the former will thus revoked cannot be subsequently revived, except by republication, and is not renewed by a destruction of the later will.”

From these decisions we find that it is clearly established in this State that the mere destruction of a will which expressly revokes a former will does not revive the earlier will; but that a republication is necessary. The law is too well settled in this State upon this proposition to again go over the ground covered by the Michigan cases above cited and the authorities upon which they rest. Upon these authorities it is clear that the first will of Mr. Jefferson — being the will offered for probate in the case at bar — was expressly revoked by the later will, and is now of no force or effect unless, by the destruction of the later will and the acts and declarations of the testator at the time of such destruction, this will was revived by republication. It is clear that both cases above quoted, as well as the cases cited by them, hold that such a will may be revived. In several of the United States and in England, statutes provide the method for the revival and republication of revoked wills. In this State there is no such statutory provision.

In Cheever v. North, supra, this court said, “the former will thus revoked cannot be revived except by republication.” Our statute does not specify publication as a requisite to the validity of a will. In those States where publication is expressly required by statute the courts have held that any method whereby the testator communicates to the witnesses that the instrument is his last will and testament is a sufficient publication. Buzby v. Darnell, 52 N. J. Eq. 337; Elkinton v. Brick, 44 N. J. Eq. 154; Lane v. Lane, 95 N. Y. 494; In re Beckett, 103 N. Y. 167; In re Hunt, 110 N. Y. 278.

The weight of authority supports the proposition that publication is only necessary when required by statute. 30 Am. & Eng. Enc. Law (2d Ed.), p. 58?, and note 2.

Publication, then, not being necessary in this State, the^ discussion as to what amounts to publication in ■ those jurisdictions where it is essential has been deemed material as bearing upon the question as to what constitutes republication. Republication is not re-execution. It signifies publishing or declaring again.

The holding of this court that a republication of a revoked will must be accomplished in order to revive it, presupposes that the revoked instrument, though dead, may be, by a sufficient act of the testator, brought to life, and become active and vital again as a testamentary disposition of his property. That an attempt to do this was made by the testator in the case at bar cannot be doubted. Nor can his intention to revive this will by what he did be questioned. He had carefully preserved the earlier will. He caused both wills to be brought to him. After reading them carefully he ordered the later will destroyed by burning.' He explained why he made the selection of the first will, and then sealing it in its envelope he handed it to proponent, saying, “ Hold the will. That is the will I want executed.”

This will was an instrument duly executed by the testator, attested and subscribed by witnesses, and in all respects, as appears from this record, conformed with the provisions of our statute regulating the execution of wills.

A republication which, under all the authorities, is an oral and not a written declaration, was the thing essential to revive the instrument. Testator’s declaration identified it as his will, and also explained its selection. He ordered it held as the will he desired to be operative and effective. This was an ample republication, and all that could have been required as a publication (had it been essential) when the will was first executed. It was all the republication he could possibly have made. .

There can be no doubt but that a re-execution of this instrument would have made it effective as a last will and testament. Such act would not be a republication and was not what this court said was essential to revive a revoked will. But one authority has been found by the writer of this opinion which declares that a re-execution is essential. In re Noon’s Will, 115 Wis. 299.

In that case testator made his will and deposited it with the probate judge. Later he withdrew it and made a second will with an express revocation clause. After-wards he filed a package with the probate court which, after his death, proved to be the first will. The second will was never discovered. The probate court refused probate because there had been no republication to revive the will. The circuit court held that no intent appeared to revive the first will. The supreme court, in an opinion written by Justice Bardeen, held that, to revive a will, it must be re-executed or adopted by some subsequent writing executed as the statute for the execution of wills requires. Such holding however was not essential to the disposition of the case, but is, without doubt, the expression of that court Upon the question.

To follow this case would, in our opinion, operate to eliminate from the law of wills the doctrine that a former will may be revived by the testator after the destruction of a later revoking will, a doctrine which has always been recognized. 30 Am. & Eng. Enc. Law (2d Ed.), p. 655, title, Revival or Republication, and cases cited in notes. To lay down such a rule is a matter for legislative, and not for judicial, action.

Under the circumstances of this case, the acts and declarations of the testator, as above stated, in the presence ,of disinterested witnesses, clearly indicated his intent and purpose not to die intestate, but to revive his former will, and such acts and declarations amouhted to and were a republication of said will, which thereby revived and operated as the last will of proponent’s decedent.

The circuit court was in error in holding the contrary opinion and directing a verdict for contestant. The judgment should be reversed, with costs of both courts, and a new trial ordered.

Moore, J., concurred with McAlvay, J.

Ostrander, J.

I do not believe that the members of the legal profession, generally, have understood that the use of the word {c republication,” in the opinion in Cheever v. North, 106 Mich. 390, 393 (37 L. R. A. 561), was intended to commit the court to the doctrine that a will, revoked either by express declaration contained in a will of later date or by operation of law, can toe vitalized by oral declarations of the testator. Our statute, unlike that of some other States, does not prescribe publication as one of the forms to bo observed in executing a will, so that the use of the term republication, in the opinion, cannot be referred to a new or second observance of a particular form. And the questions considered in Cheever v. North did not require a determination of requirements necessary to establish the validity of a will once expressly revoked. Treating the question as a new one, considering the policy of our law as evidenced by the statute of frauds and the statute of wills, the rule of law — to the employment of which this court is committed — that a revocatory clause in a will properly executed destroys, at once, the earlier testament, which is not revived by the destruction of the revocatory testament, it seems to me that the legal sufficiency of the earlier will should not be determined by the intention of the testator as evidenced by his oral declarations. The safer and better rule is that, neither will being effective without some further action on the part of the testator, his intentions should be expressed in writing, formally sufficient to satisfy the statute. In re Noon’s Will, 115 Wis. 299. See, also, Lansing v. Haynes, 95 Mich. 16; Wirth v. Wirth, 149 Mich. 687. This court, having declined to follow the rule of the English law courts, is not relegated of necessity to that of the ecclesiastical tribunals. See these rules stated and compared in Rudisill's Ex’r v. Rodes, 29 Grat. (Va.) 149. And if revival of a will expressly revoked may be accomplished by oral statements, there is no apparent reason why intention may not be considered for such a purpose when a will is revoked by operation of law. In either case the will stands revoked, in either case the testator may, undoubtedly, make a new will precisely like the one revoked. In my opinion, the court below was right, and the judgment should be affirmed.

Grant, C. J., and Blair, Montgomery, Hooker, and Carpenter, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    MORSE v. HAYES.
    Limitation of Actions — Statute—Suspension—Death of Party.
    Section 9737, 3 Comp. Laws, limiting the time within which causes of action may be enforced by or against the representatives of deceased persons, applies only to those causes of action as to which the period prescribed by the general statutes of limitations expires during the period ensuing between 30 days before death and two years after the granting of letters of administration, and is not effective to extend the time for bringing suit upon a cause of action as to which the period of limitations still has more than two years to run after the grant of letters. Stringer v. Stephens’ Estate, 146 Mich. 181, overruled.
    Error to Ionia; Sessions, J., presiding.
    Submitted June 6, 1907.
    (Docket No. 33.)
    Decided January 6, 1908.
    Debt by Allen B. Morse and Herbert B. Webber, receivers of the firm of Webber Brothers, against Nathan B. Hayes for the amount of a judgment. There was judgment for plaintiffs on a verdict directed by the court, and defendant brings error.
    Reversed, and no new trial ordered.

      Morse & Locke, for appellant.

      B. A. & W. E. Hawley, for appellees.
   Carpenter, J.

This suit is brought to recover upon a judgment rendered in the circuit court for the county of Ionia on the 16th of September, 1895, against said defendant, and in favor of George W. Webber and Andrew J. Webber, a copartnership doing business as Webber Bros. George W. Webber died January 15, 1900. From this time the surviving partner, Andrew J. Webber, had possession of the partnership assets until his death, which occurred October 17, 1902. November 28, 1902, Mary C. Webber was appointed executrix of the last will and testament of the said Andrew J. Webber, and* at once qualified as such, and has continued in that office until the present time. In May, 1903, the executrix of George W. Webber filed a bill for an accounting in the circuit court for the county of Ionia, in chancery, against the executrix of said Andrew J. Webber. During the progress of said cause plaintiffs were appointed receivers of the partnership effects. They commenced this suit on the 24th of September, 1906. The question is whether the action is barred by the statute of limitations. The circuit court decided that it was not, and rendered a judgment in favor of plaintiffs. Is that decision correct? The action is clearly and confessedly barred by the statute, unless it is preserved by section 9737, 3 Comp. Laws. That section reads:

“ If any person entitled to bring any of the actions before mentioned in this chapter, or liable to any such actions [the action in question is one of the before-mentioned actions described in the chapter], shall die before the expiration of the .time herein limited or within thirty days after the expiration of the said time, and if the cause of action does by law survive, the action may be commenced by or against the executor or administrator of the deceased person or the. claim may be proved as a debt against the estate of the deceased person, as the case may be, at any time within two years after granting letters testamentary or of administration, and not afterwards, if barred by the provisions of this chapter.”

By the provisions of that chapter (see section 9751, 3 Comp. Laws) this action might be brought “within ten years after the entry of the judgment, and not after-wards;” that is, it would be barred on the 16th of September, 1905. It follows, therefore, that November 28, 1902, when letters testamentary were granted to the executrix of Andrew J. Webber there remained a period of 2 years, 9 months, and 18 days in which this action might be brought. The action was barred because not brought within this time, unless that time was extended, by section 9737. Does section 9737 extend this time? It was contended by the appellee and decided by the learned circuit judge that it does. Their contention is based upon the case of Stringer v. Stephens’ Estate, 146 Mich. 181, recently decided by this court. That case does support their contention. This court there decided that “from the time of her (the creditor’s) death the running of the statute was suspended until two years from the appointment of her administrator.” The opinion in that case proceeds upon the ground — not that the question of the proper construction of the section is an open one — but that it has already been authoritatively determined by this court. That decision is, therefore, based, not upon argument, but upon authority. The authority relied upon is Field v. Loveridge, 114 Mich. 220. In Field v. Loveridge, supra, the court said:

“The statute of limitations would be suspended at her (the creditor’s) death. The statute would not commence to run again until two years after letters of administration were granted.”

In that cáse the letters of administration were granted August 11,1893, and suit was commenced November 20,1894. Under what we shall endeavor to show was a proper construction of the statute suits might be commenced at any time within said ■ two years after the letters are granted. There was no occasion, therefore, for the court to say the statute was suspended during these two years and that statement was, therefore, a mere dictum. In First Nat. Bank of Paw Paw v. Sherman’s Estate, 117 Mich. 602, the opinion states:

“ The death of the debtor suspends the running of the statute of limitations. It suspends the statute for two years after granting letters testamentary or of administration, and not afterwards.”

The decision in that case did not, however, accord with this statement. One of the claims in suit was dated December 27, 1886, and was due six months after date, or June 27, 1887. The debtor died December 22, 1887. Letters of administration were granted January 26, 1891. It will be observed that the statute of limitations had run less than six months at the time the debtor died. If it is true that the operation of the statute was suspended from the creditor’s death until two years after the grant of said letters, this claim would not have been barred until July 32, 1893; but this court in that case held that it was barred on or before March 9, 1897 — the date of its presentation against the estate.

We feel compelled to say that the statute is not open to the construction contended for by appellee, and that the decision of Stringer v. Stephens’ Estate must be overruled. The language of the statute is not ambiguous. It contains no language to indicate that the operation of the statute of limitations is suspended from the time of death until two years after the grant of letters of administration. It gives a period of two years — and of two years only — after the grant of letters testamentary or of administration in which to enforce certain causes of action. What are the causes of action which may be enforced “at'any time within [said] two years?” Manifestly they are the causes of action which would otherwise become barred in the period ensuing between the 30 days before death and the two years after the granting of letters of administration. This was the construction placed by the supreme court of Wisconsin (see Curran v. Witter, 68 Wis. 16, and Palmer v. O’Rourke, 130 Wis. 507) upon a section differing in no material respect from that under consideration, except this, viz., it did not contain the words “and not afterwards, if barred by the provisions of this chapter.” We think that construction correct. Otherwise, we would impute to the legislature the intent to include among the causes of action which might be enforced in said two years either or both of the following classes: (a) Causes of action which were barred more than 30 days before death; and (6) causes of action which were not barred until more than two years after the granting of letters testamentary or of administration. It is clear and every one will concede that causes of action embraced in class “a” — those that become barred by the statute of limitations more than 30 days before death — are not included in the section. It is equally clear that causes of action embraced in class —those that have more than two years to run after the grant of letters testamentary or of administration — are not included. For, if they are, we must declare that the legislature, in attempting to enlarge the time for the enforcement of causes of action that had just expired or were about to expire, intended to shorten the time for the enforcement of other causes of action. It is clear that it had no such intent.

Does the section have a different meaning because the legislature, after stating that the cause of action mentioned in the section might be enforced “at anytime within two years,” added the following significant words, “and not afterwards, if barred by the provisions of this chapter ? ” Manifestly not. Those added words, instead of detracting from, strengthen the foregoing reasoning. They are equivalent to an express legislative declaration that the causes of action which may and must be enforced within said two years are only those which would otherwise become “barred” — barred before the lapse of said two years — “by the provisions of this chapter.” They remove all possibility of inferring — and as already stated I do not think that in their absence we could have so inferred — that the section covers causes of action which do not become barred in the time therein mentioned.

We conclude, therefore, that causes of action which do not become barred within the time mentioned in the section — and that includes causes of action like that in controversy, which are not barred within two years after the granting of letters testamentary or of administration — are in no way affected by the section.

This construction gives proper effect to the language of the legislature. It accords with justice and good sense. Those having causes of action which are not affected by the section, viz., causes of action which are not barred within two years after the grant of letters testamentary or of administration — already have more than two years in which to enforce them. Those having causes of action which are affected by the section, viz., causes of action which are barred within two years after the grant of letters testamentary or of administration — are given two years for their enforcement. The section thus insures a period of two years after the grant of letters testamentary or of administration for the enforcement of all causes of action which survive death. (Included among these causes of action are, as heretofore stated, those which, except for the section, became barred 30 days before death.) This would seem to accomplish the legislative purpose of granting a reasonable time for the enforcement of all such causes of action which survive death. According to the construction contended for by appellee, if a judgment creditor or debtor should die within the first year after a judgment was rendered, the statute of limitations would not bar action thereon until 11 years after the grant of letters testamentary or of administration; while if there had been no death, or if the judgment had been rendered after death, action would have been barredin 10 years. Other instances leadingto consequences quite as absurd will readily suggest themselves.

We conclude that section 9737 has no application to the action in controversy, and that the circuit court erred in refusing to direct a verdict for defendant.

The judgment should be reversed, and no new trial granted.

Grant, 0. J., and Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. McAlvay, J., concurred in the result.


author: MoAlvay, J.

text:
    OSIUS v. HINCHMAN.
    1. Injunction — Bill —Sufficiency—Withdrawal of Claims— Effect.
    A bill for an injunction restraining defendant from engaging within five years in the practice of dentistry in Muskegon, contrary to the terms of a contract of employment with complainant, was founded upon the claim that complainant, by discovery and otherwise, had obtained certain secret and valuable processes, formulae, and methods of doing business which, during the time of defendant’s employment, had necessarily come to his knowledge and use, and that defendant threatened to go into business for himself and to use and disclose said secrets to the irreparable injury of complainant. Upon the hearing, complainant withdrew the question of trade secrets entirely from the consideration of the court. Held, that nothing remained of the bill except the attempt to enforce the provision of the contract against engaging in business, as to which the remedy at law is adequate.

      2. Same — Violation of Contract — Employment.
    A breach by an employé of a contract of employment involving no special skill or circumstances will not be enjoined for the reason that a substitute can be readily supplied and the remedy at law is adequate.
    3. Same — Breach of Contract — Engaging in Business —When Granted.
    A breach of a contract not to engage in a particular business in a particular locality for a limited time, not ancillary or incidental to a contract by which the complainant acquires an interest in the business to be protected, will not be enjoined.
    Appeal from Muskegon; Sessions, J.
    Submitted June 13, 1907.
    (Docket No. 90.)
    Decided January 6, 1908.
    Bill by Frederick Osius against Frank B. Hinchman to enjoin defendant from entering into business contrary to the terms of a contract. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Cross, Lovelace & Boss (Bichará L. Newnham, of counsel), for complainant.

      Nims, Hoyt, Erwin & Vanderwerp, for defendant.
   MoAlvay, J.

Complainant’s assignor, a firm composed of himself and' others, which was engaged in the business of general dentistry in several cities in Michigan, including the city of Muskegon, on July 2, 1904, entered into the following agreement in writing with the defendant who was a practicing dentist:

“Memorandum of agreement, made and entered into this 2nd day of July, A. D. 1904, by and between the Gratiot Dental Company, a copartnership of and with its head and main office at Detroit, Michigan, party of the first part, and Dr. F. Hinchman, of Port Huron, party of the second part.
Whereas, said party was and now is organized for and is now engaged in the business of general dentistry, with the object and purpose of establishing dental offices in various cities in the several counties throughout the State of Michigan, and
Whereas, said first party by experience and diligent study in and through the science of dentistry is using modern methods by means of which it is enabled to do, perform and execute the work of general dentistry superior to in point of durability, workmanship and appearance to other dental establishments that follow the old methods and use the heretofore usual or ordinary dental material and supplies, and
“ Whereas, said first party, being desirous of protecting itself in securing and maintaining the exclusive use of the above mentioned new discovered methods of doing business, hereby enters into the following contract of agreement by and with said second party as follows:
“Said first party, for and in consideration of the fulfillment of the' agreements, promises and engagements of said second party, hereby agrees to employ and does employ said second party, to perform the work and professional services of general dentistry at Muskegon, in Michigan, and hereby agrees to pay second party, a salary of and at the rate of twenty-five dollars per week so long as second party’s services and deportment is satisfactory to said first party.
“ Second party in consideration of the above-mentioned employment and the payment of the aforesaid salary hereby agrees to faithfully execute the labors of his engagement in a good, professional and workmanlike manner, and to conduct himself in such a way as shall serve the best interests of said first party.
“Said second party further undertakes and promises that in the pursuit and course of his employment and also after the term of his employment with first party shall terminate, he will not engage within five years in the same business of dentistry in any city in the State of Michigan, wherein said first party shall have an office for the aforesaid dental purposes, and also that said second party shall not at any time divulge or make known any of the secrets, plans, methods or processes by which said dental work and profession is conducted and carried on.
“In witness whereof, the parties hereunto set their hands and seal the day and year first above written.
“Gratiot Dental Parlors,
“ Signed, sealed and “Per P. Osius, Geni. Mngr.
delivered in the “ F. B. Hinchman. presence of,

Later the firm was dissolved and the business continued by complainant who succeeded to all the rights of the firm in and to the business and the contract in question.

Defendant in 1903 had been employed by the same parties under a similar contract. The employment under the contract in suit continued until March 1, 1907, when defendant left the employment of complainant with the expressed intention of opening an office for himself in Muskegon and engaging in the business of dentistry.

Complainant, on March 19th, filed his bill of complaint in this cause and obtained a temporary injunction restraining defendant from engaging, within five years after leaving his employment, in the business of dentistry in the city of Muskegon, and also from divulging or making use of any of the secrets, formulse, plans, or processes of complainant and used by him in the conduct of his business. Defendant filed a sworn answer to this bill of complaint, denying all the allegations of complainant’s bill relative to trade secrets, and denying'that any such secrets had been disclosed to him and that he had any knowledge of such matters, and made a motion to dissolve the injunction. This motion was not passed upon until the final hearing. The case was heard upon bill, answer, and replication. Upon the hearing complainant withdrew the question of trade secrets entirely from the consideration of the court. A decree was granted complainant declaring the agreement not to engage in business valid, and permanently enjoining defendant from engaging in such business of dentistry in Muskegon for five years after March 1, 1907. Defendant has appealed from this decree.

It will not be necessary to repeat the material allegations of the bill of complaint. It was founded upon the claim that complainant by discovery and otherwise had obtained certain secret and valuable processes, formulse, and methods of doing business which, during the time of defendant’s employment, had necessarily come to his knowledge and use; that defendant threatened to go into business for himself and to use and disclose said secrets, and that the use by him of such trade secrets would be an irreparable injury to complainant, and he therefore asked the assistance of a court of equity to protect him in his rights.

The bill as filed probably stated a cause of action entitling complainant to relief. But all of this frame work upon which the bill rested, touching the complainant’s rights to be protected in the exclusive use of his trade secrets, was stricken from this bill of complaint when the matter of trade secrets and any and all claim thereunder was entirely withdrawn from the consideration of the court. Nothing is left of the contract the breach of which is sought to be restrained and enjoined by this bill except the negative agreement relative to refraining from doing business for a term of years after leaving complainant’s employment. There are no allegations in the bill that complainant will suffer irreparable loss on account of the breach of this agreement; nor that complainant’s remedy at law is inadequate. No allegation or showing is made that his damages are not easily ascertainable, nor that his place cannot be readily filled.

After eliminating the matter of trade secrets, the contract sought to be enforced is a contract of employment containing this negative agreement, requiring no special skill other than that which could be rendered by an ordinary dentist. A breach by an employé of such a contract will not be enjoined for the reason that a substitute can be readily supplied and the remedy at law is adequate. 22 Cyc. p. 857, and cases cited; H. W. Gossard Co. v. Crosby, 132 Iowa, 155.

In this last case the court said:

“ Even when there is an express negative covenant, the authorities all agree that an injunction will not be granted save in those exceptional cases where the promised service is of a special, unique, unusual, and extraordinary or intellectual character which gives it peculiar value the loss of which cannot be reasonably or adequately compensated in damages in an action at law.”

The case was quite similar to the case at bar as now presented and it was held, as we think it must be held in this case, that the controversy was the ordinary one arising daily between master and servant and employer and employe, the settlement of which is peculiarly within the province of law and not a subject of equitable consideration. Complainant has made out no case whatever showing that he is entitled to the equitable relief prayed. There is an entire absence of reliance upon any such claim in the bill. Complainant, having failed to show that he has in reality suffered any loss, or will suffer any loss by reason of the acts of defendant, or that he is in any way actually prejudiced by such acts, or that the enforcement of the agreement was necessary to his protection, is not entitled to relief. Oppenheimer v. Hirsch, 5 App. Div. (N. Y.) 232.

The Michigan cases cited by complainant in support of the proposition that a breach of this bare contract not to engage in the business of dentistry for a period of years in Muskegon do not seem to us to be in point. Not one of these cases is similar to the case at bar, and in none of them is the contention of complainant asserted. In all of them there were sales either of a stock of goods or a business or á professional practice and the good will attending them, accompanied by an agreement not to engage in business in the locality. These cases are of the same class as Beal v. Chase, 31 Mich. 490, and are all cases where the restraining contract is incidental to, and in support of, another contract or sale by which the purchaser acquires some interest in the business needing protection. 24 Am. & Eng. Enc. Law (2d Ed.), pp. 851, 852, and cases cited; Clark v. Needham, 125 Mich. 86 (51 L. R. A. 785).

The contract under consideration as submitted to the court is not of that class. It is not ancillary to another agreement, and therefore not specifically enforceable. Several other important questions are discussed in the briefs of counsel which do not require attention for the reason that complainant is not entitled to relief.

The decree of the circuit court is reversed, and a decree will be entered dismissing the bill of complaint, with costs of both courts to defendant.

Grant, C. J., and Hooker, Moore, and Carpenter, JJ., concurred.


author: Grant, C. J.

text:
    OWINGS v. OWINGS.
    ■ 1. Tenancy in Common — Possession by Co-tenant — Rents—Liability.
    Where a son, after the death of his father, continues as before to reside upon the father’s farm with others of his father’s heirs, without objection from them or the other heirs, or any agreement respecting rents or profits, he is a co-tenant in possession with the consent of the other co-tenants, and as such is under no obligation to account for rents and profits.
    2. Executors and Administrators —Partition—Action—Parties.
    An administrator is not a proper party complainant in a bill , against an heir in possession for partition of intestate’s realty and an accounting for rents and profits.
    8. Same — Real Estate — Duty to Sell.
    Where there is-insufficient personal estate to pay the debts of a deceased person, it is the administrator’s duty to proceed to a sale of real estate in the probate court.
    4. Partition — Time—Settlement of Estate.
    Heirs can legally proceed to partition the real estate of their ancestor before the settlement of his estate.
    5. Same — Propriety.
    Where an administrator’s sale of the real estate of a deceased person is necessary to pay debts, a suit for partition by the heirs is unnecessary, though actual partition is impracticable, since a division of the proceeds of the sale by the administrator, after payment of the debts, will accomplish the purpose.
    6. Same — Bill—When Sustained.
    A bill for partition and for an accounting of rents and profits, filed by an administrator and certain of the heirs, though unauthorized as far as the administrator is concerned, and unnecessary on the part of the heirs, will be sustained as a bill for partition, and a sale ordered, where such course will be cheaper and more expeditious than to remand the case to the probate court to allow the administrator to proceed to sale.
    Appeal from Eaton; Smith, J.
    Submitted October 21, 1907.
    (Docket No. 107.)
    Decided January 6, 1908.
    Bill by Gulielmus E. Owings, George W. Rowley, administrator of the estate of Fox W. Owings, deceased, and others, against Francis O. Owings for a partition and for an accounting. From a decree for complainants, defendant appeals.
    Modified.

      Horace 8. Maynard, for complainants.

      Lyman H. McCall, for defendant.
    One Fox W. Owings died intestate in July, 1897, seised of a farm of 40 acres within the corporate limits of the city of Charlotte. Complainants and defendant are his sole heirs at law, Georgiana owning two-sixths and the others one-sixth each. For some years prior to his death he and the defendant had lived together on the farm, defendant doing all the work and dividing the proceeds equally with his father. There was a small amount of personal property upon the farm belonging to the estate, and some growing crops. There was some talk after the funeral about defendant’s buying the interest of his co-tenants but nothing came of it, and it does not appear that the subject was afterwards mentioned. Mrs. Stoner testified that defendant told her that there was no necessity for administration of the estate, but just when the conversation occurred she does not state. Gulielmus testitied that he told defendant that there was no necessity for administration if he would buy out the others and that this conversation occurred when they returned from the funeral. Defendant continued to occupy the premises and is still in possession.
    Georgiana made her home with defendant for about eight years after her father’s death. Mrs. Stoner also lived there awhile thereafter. No further talk was had, and no steps taken until in July, 1904, when complainant Rowley was appointed administrator. He took possession of certain personal property of the estate and sold it, realizing $96.90. Defendant presented a claim against the estate for funeral expenses and the care of deceased. These were allowed by the commissioners, — the former at $149.40, and the latter at $550. The administrator appealed the claim for the care of the deceased to the circuit court, and it was there allowed at the sum of $400, a reduction of $150.
    After the above proceedings, and probably in August, 1906, complainants filed this bill in equity, praying for a partition of the land among the heirs, for a sale if partition were impracticable, and a division of the proceeds, and for an accounting from defendant for the rents and profits and for the property he had used. Complainant Rowley prays that it be determined what proportion of the estate shall be delivered to him to pay debts and expenses of administration. To this bill defendant interposed a demurrer, which was overruled and he then answered. Proofs were taken, and the court entered a decree, charging defendant with 10 years’ rent of the farm at $150 per year, $1,500, and for timber sold and converted to his own use, $60, and crediting him for taxes paid, repairs, claims allowed in circuit and probate courts and interest, amounting in all to $1,279.24, leaving a balance due from defendant to his co-tenants of $280.76. A sale of the land was decreed, the administrator directed to have his accounts established in the probate court, and the commissioner conducting the sale was directed to distribute the proceeds to the respective parties according to the terms fixed by the decree.
   Grant, C. J.

(after stating the facts). For some time prior to the death of the father he and his son, the defendant, occupied the premises jointly under an arrangement for a division of the crops. Defendant’s sisters, Georgiana and Mrs. Stoner, lived with them. After the death of the father defendant continued in possession, his two sisters continuing to live there whenever they chose. Defendant did not occupy the premises adversely; there was no agreement that he should pay rent or account to the others. No co-tenant demanded possession or brought any suit in ejectment or otherwise to enforce his claim. The other co-tenants were free to come and go as they chose. He paid the taxes and made repairs and improvements. He was a co-tenant in possession by the consent of the other co-tenants, without any act or word indicating an understanding that he was to pay rent, or account for profits to his co-tenants. The law in this State is settled that, under those circumstances, a co-tenant is under no obligation to account for rents and profits. His occupancy was in his own right and for the interest of all. Everts v. Beach, 31 Mich. 136; Wilmarth v. Palmer, 34 Mich. 347; Moreland v. Strong, 115 Mich. 211; Fenton v. Miller, 116 Mich. 45; In re Graff’s Estate, 123 Mich. 456. The affirmance of the decree of the court below would result in overruling the above cases, and make a tenant in possession by the tacit assent of his co-tenants liable to account to them for the rental value of the property. It follows that the decree in this respect must be reversed.

The administrator was not a proper party complainant. He had no interest in the partition of the land. It is conceded that a partition was impracticable, and that it was for the interest of all that the land be sold and the proceeds divided. This was patent to all the heirs, as well as to the administrator before suit was brought. His clear duty was, there being insufficient personal property with which to pay the debts, to proceed to a sale in the probate court. If the defendant was liable to any one for rent after the death of his father, it was not to the administrator but to the heirs. The heirs could legally proceed to partition before the settlement of the estate. Campau v. Campau, 19 Mich. 116.

The complainants, however, had no occasion to institute such suit to obtain their share of the property. A sale by the administrator and a division of the proceeds after -payment of debts and expenses, would have accomplished the object and with the least expense. The undoubted purpose of the bill was to compel the defendant to account for the rental value of the property while he had been in possession and thus wipe out his claim allowed against the estate. The administrator was not justified in lending himself as a party complainant to assist his co-complainants in the accomplishment of this object.

The land involved is not of great value. It appears conceded that the parties in interest are poor. The bill can be sustained as a bill for partition. We are therefore disposed to affirm the decree authorizing a sale of the land and a division of the proceeds. This can be done now cheaper than to remand the case to the probate court to allow the administrator to proceed to sale. The sole claim against the estate is that of the defendant. When the account of the administrator is allowed by the probate court, the commissioner in the circuit court will pay over to the administrator the costs of administration and the debt allowed defendant, and distribute the balance among the heirs according to their respective interests. The defendant will recover costs against the complainant heirs, and as well against the administrator in his individual capacity, and not as administrator. The value of the timber will be accounted for on the final distribution.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: McAlvay, J.

text:
    PENINSULAR CLUB OF GRAND RAPIDS v. KENT CIRCUIT JUDGE.
    1. Mandamus — Propriety—Adequate Remedy — Error.
    Mandamus is not the proper remedy to review an order of the circuit court denying a inotion to dismiss quo warranto proceedings on the ground that leave to file the information was not obtained, the remedy by error being adequate and available.
    2. Same — Grounds—Waiver of Defenses.
    That a plea to an information in quo warranto will be a waiver of the jurisdictional question raised by a motion to dismiss, is no reason why this court should grant a writ of mandamus to review the action of the circuit court in denying such motion, the matter of waiver being one of choice.
    Mandamus by the Peninsular Club of Grand Rapids to compel Willis B. Perkins, circuit judge of Kent county, to dismiss certain quo warranto proceedings.
    Submitted October 22, 190?.
    (Calendar No. 22,521.)
    Writ denied January 6, 1908.

      Grane & Norris, for relator.

      John S. McDonald, Prosecuting Attorney (Colin P. Campbell, of counsel), for respondent.
   McAlvay, J.

In the circuit court for Kent county the prosecuting attorney, in the name of the people, upon his relation, without the leave of the said court, filed an information in the nature of a quo warranto against relator, alleging that relator was a corporation organized under an act (Act No. 356, Laws 1865) of the legislature of this State, entitled “An act to authorize the formation of corporations for literary and scientific purposes,” and charging that s.aid corporation was exercising, privileges not conferred by law, and that it was engaged in an unlawful business, to wit, the business of selling at retail spirituous, malt, brewed, fermented, and vinous liquors without ob-taming license therefor as required by the laws of this State, and praying an inquiry by what warrant petitioner claimed to exercise said rights and privileges.

Relator moved to dismiss said proceedings for the reason that the same had been begun and the information filed therein by the prosecuting attorney without the leave of the court previously obtained. This motion was heard before said circuit court and was denied by respondent in this proceeding, who heard and decided said motion. Relator asks for a writ of mandamus commanding respondent to vacate and set aside the order denying said motion, and to enter an order granting the same.

It is objected that, the court having retained jurisdiction in denying relator’s motion, mandamus is not the proper remedy. Relator meets this objection by urging that this action of the court is not a final judgment; that certiorari will not lie because the proceeding is according to the course of common law; and that if relator pleads to the information, the right to raise this jurisdictional ques? tion will be waived. If, in this case, as claimed by relator,, pleading to the information will be a waiver of this jurisdictional question — which we do not decide — that will be no reason why this, court should grant this writ. The matter of a waiver is always one of choice. This case is controlled by the decisions of this court which hold that mandamus will not issue where other adequate remedy is available. Michigan Mut. Fire-Ins. Co. v. Wayne Circuit. Judge, 112 Mich. 272; Cattermole v. Ionia Circuit Judge, 136 Mich. 274; Roberts v. Lenawee Circuit Judge, 140 Mich. 115; Chatfield v. Lenawee Circuit Judge, 140 Mich. 636; Sharp v. Montcalm Circuit Judge, 144 Mich. 328; Hitchcock v. Wayne Circuit Judge, 144 Mich. 362; Cosgrove v. Wayne Circuit Judge, 144 Mich. 682; City of Flint v. Genesee Circuit Judge, 146 Mich. 439.

The writ is denied.

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


author: Grant, O. J.

text:
    AMERICAN GLUE CO. v. RAYBURN.

    1. Sales — Contract—Construction—Warranty—Quality Stipulated.
    Where defendant required glue for a specific use, with which plaintiff was acquainted, a contract to furnish same “Quality in every way to be up to standard, or same as has been delivered during past 60 days,” does not provide for two qualities, the furnishing of either of which will comply with the contract, but is a warranty that the glue furnished shall be equal to that which has been furnished during the 60-day testing period.
    2. Same — Warranty—Breach—Evidence—Identifying Defect.
    Where glue is sold under a warranty that it shall be equal to that furnished as a sample, proof that -the buyer used it under precisely the same conditions and circumstances, and that it did not hold as did the sample, is sufficient evidence of a breach of the warranty, and identification of the particular defect in the glue, and proof that it was something for which the seller alone was liable, is unnecessary.
    3. Same — Warranty—Breach—Damages—Recoupment — Investigation.
    Where glue was being furnished to a manufacturer of panels, under a warranty of quality, he had a right to assume that the seller was complying with his contract and to continue using the glue and investigating the trouble until he became satisfied that the glue was at fault before notifying the seller of the defect; for loss occurring during the proper testing period the buyer may recoup his damages, but he is not entitled to damages for bad panels constructed after he should have become satisfied that the glue was bad.
    Error to Alpena; Emerick, J.
    Submitted October 23, 1907.
    (Docket No. 17.)
    Decided January 6, 1908.
    Assumpsit by the American Glue Company against Robert H. Rayburn and William H. Campbell, copartners as the Michigan Veneer Company, for goods sold and delivered. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Charles E. Henry (De Vere Hall, of counsel), for appellant.

      Joseph H. Cobb, for appellees.
    The plaintiff corporation is a manufacturer of glue. The defendants, copartners, are manufacturers of veneered panels used in the manufacture of furniture. They use a large amount of glue in fastening the veneers together. Plaintiff had sold the defendants glue for some time prior to the transaction here involved. Plaintiff, desirous of obtaining the trade, solicited it through its agent, Mr. Williamson. Mr. Williamson evidently obtained a conditional order which he communicated to the plaintiff. Thereupon, on September 19, 1903, plaintiff wrote defendants stating:
    “We are very much pleased to enter your contract for your requirements of glue to January 1, 1905, contingent upon the sample lot of three barrels which we aré now shipping you being satisfactory.”
    Defendants replied September 21st, stating:
    “If we make a contract with you it must be with the agreement that we terminate it any time quality of glue is not satisfactory, and that you guarantee price and quality.”
    Several other letters passed between the parties, the •sample glue was sent, defendants wrote claiming that it was not equal to that formerly purchased from plaintiff; •other samples were sent and used, and on November 16, 1903, the parties entered into a contract, the part which is here material reading as follows:
    “ It is agreed by the American Glue Co., of Chicago, to sell the Michigan Veneer Co., of Alpena, Mich., their supply of glue for veneer work from date to December 31, 1904, at 9c. per lb., quality in every way to be up to standard, or same as has been delivered during past sixty days.”
    Shipments were made under the contract and payments made until some time in April, 1904. On April 23d, defendants wrote plaintiff that the glue ‘ ‘ is not of the quality you gave us at first. * * * We have put off making complaint until now, but the ‘ kick ’ from loose panels we are having past few months requires a quick remedy.” At that time plaintiff had shipped goods February 17th and. 29th, March 15th and 31st, and April 15th, and also oneafterwards, on the 30th, which are the bills involved in this suit. On May 7th defendants again wrote plaintiff that they were not satisfied with the quality of the glue. To this plaintiff replied that they would send their Mr. Williamson there on the 11th or 12th, and that he would go into the matter thoroughly. Mr. Williamson visited the defendants’ plant on May l'2th and made an examination. Soon thereafter defendants canceled the contract and plaintiff brought this suit to recover for the above shipments. The defendants pleaded the general issue with notice of set-off and recoupment. The recoupment was based upon damages claimed to have resulted to defendants by the use of poor glue not in accordance with the contract. The case was submitted to the jury who foúnd a verdict for the defendants for $1,777.18.

       Rehearing denied February 15, 1908.

   Grant, O. J.

(after stating the facts). The court-submitted the case to the jury upon the theory that the contract called for glue of the same quality as that which had been furnished during the testing period. We think the record discloses that the case was tried by both parties upon that theory. It is, however, now insisted by the plaintiff that the contract provides for two qualities, and that if the plaintiff furnished glue of either quality it had complied with the contract. Counsel base this claim upon that provision of the contract reading:

“Quality in every way to be up to standard, or same as has been delivered during past 60 days.”

We think counsel’s position is unsound. Both parties to the contract understood the use to be made of the glue. Its use was a specific one. The defendants desired only-one standard or quality, and that was the one which complied with the samples furnished and upon which the contract was based. The contract was a warranty that the glue to be furnished under it should be equal to that which had been furnished during the testing period, and the court correctly so instructed the jury. The evidence on this question was in sharp conflict.

Counsel for plaintiff preferred several requests bearing upon the absence of proof of any defect in the glue. The position appears to be that, to use their own language:

“ The proof should locate the defect in the glue, identifying it as a thing for which the plaintiff alone was liable.”

The defendants gave evidence to show that the test glue securely held the panels together; that the contract glue did not; that they used the glue in precisely the same way as they did the test glue; that the same man mixed both; that they used the same kind of lumber, and that it was in the same condition as that used during the test period. This was sufficient evidence to prove that the contract glue was not equal to the test glue. Defendants were under no obligations to show what the defect was. Proof that they, used the glue under precisely the same conditions and circumstances, and that it did not hold the panels together, was sufficient evidence to go to the jury that the glue was defective, and not suchas the contract called for.

It is also insisted that the defendants continued to receive and use the glue after they had ascertained that it did not hold the panels; that it was their duty to notify the plaintiff as soon as the glue became unsatisfactory, and, not having done so, they cannot recover. This is perhaps the most doubtful question in the case. The defendants were bound to give the glue a fair trial. Their own protection required that they- use every reasonable means to determine whether the fault was with the glue or arose from some other cause, and they were authorized in taking sufficient time to investigate the cause of the trouble. They and their witnesses testified to various things which they did during this period to see if the fault lay anywhere else than with the glue. They testified that there was some trouble in December, and that after that the trouble increased, panels came apart more frequently, and some they had shipped to customers were returned.

The court very pointedly and clearly instructed the jury that it was the defendants’ duty to notify the plaintiff as soon as they knew or should have known that the fault was with the glue, and that they could not recover damages for bad panels constructed after they should have become satisfied that the glue was bad. The court used this language:

“I say that they [defendants] ought not to recoup damages, after they should, as honest men, of reasonable judgment and prudence, have become satisfied that the glue was at fault for use in making these panels.”

The question was properly submitted to the jury, unless the law required the defendants to notify the plaintiff upon discovery that for some reason the panels were bad, discontinue its use and cease their investigation as to the cause of the trouble. We do not think the law imposed that duty upon them. They had a right to assume that the plaintiff was performing its contract, and were justified in using the glue and pursuing their investigations until they had become satisfied where the fault lay. Then it was their duty to act.

There are many assignments of error as to the admission and rejection of evidence bearing upon the questions above discussed. They have had due consideration, and we find no prejudicial error in them. No question is raised as to the correctness of the measure of damages given by the court to the jury, but there are many assignments of error upon the admission and rejection of testimony bearing upon the damages. We have also examined these, and find no prejudicial error.

The trial of this case was long and hotly contested, lasting eight days. On the material points there was a direct conflict of evidence. All the evidence material for the jury to consider was admitted. None that was rejected, even if some of it might with propriety have been admitted, could have been of such a character as to affect the verdict.

Judgment affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    GALLON v. WAYNE CIRCUIT JUDGE.
    Injunction — Suit at Law — Grounds—Incompetent Plaintiff— Release.
    A bill alleging that defendant, for the purpose of cheating and defrauding complainant from having the benefit of a release, fraudulently procured a decree in the probate court appointing herself guardian of the releasor as an incompetent, and thereupon brought a suit at law upon the released claim, does not authorize an injunction against the prosecution of the suit at law, since the appointment of the guardian can have no effect upon the validity of the release.
    Mandamus by Millie Gallon and William Wellington to compel Henry A. Mandell, circuit judge of Wayne county, to dissolve an injunction.
    Submitted December 3, 1907.

    (Calendar No. 22,571.)
    Writ granted January 6, 1908.

      Thomas A. Oonion, for relators.

      Edwin Henderson, for respondent.
   Per Curiam.

The relator Millie Gallon is the general guardian, and William Wellington guardian ad litem, of Mabel Wellington. On November 15, 1906, Millie Gallon as guardian brought suit in the circuit court for the county of Wayne against the House of the Good Shepherd, alleging that the said Mabel Wellington was unlawfully detained in its home for seven years; that she wás compelled to do menial work and was maltreated. The suit at law was instituted to recover damages for such illegal detention and maltreatment.

After Miss Wellington had left the House of the Good Shepherd she notified that institution through her attorney of a claim for heavy damages, and threatened to bring suit. After this claim and .before suit was brought she executed a release to said House of the Good Shepherd of all claim for damages. Proceedings were after-wards taken in the probate court to have said Mabel Wellington declared an incompetent and for the appointment of a guardian. That proceeding resulted in the appointment of relator, Millie 'Gallon, her sister, as guardian. The House of the Good Shepherd filed a bill in chancery to enjoin the suit at law, alleging that “ said Millie Gallon fraudulently and for the purpose of cheating and defrauding complainant from having the benefit of the release aforesaid, and to cause it to be believed that the said Mabel Wellington, at the time she executed the release aforesaid, was an incompetent person, and without notice to complainant filed a petition for the appointment of a guardian of said Mabel Wellington and fraudulently procured her appointment as such guardian, and willfully kept said Mabel Wellington from being sworn in said probate court at said hearing, and falsely testified that she ■was a person mentally incompetent to have charge of her person and estate.”

Upon filing the bill an order to show cause why an injunction should not issue was granted; a hearing was had at which affidavits were filed. The court granted a preliminary injunction. The guardian then filed an answer and again moved a dissolution of the injunction, which-was refused by the court. She how asks the writ of mandamus to compel the dissolution of the injunction.

We think the facts stated in the bill did not authorize the court to grant the injunction. The appointment of a guardian can have no effect in the suit at law upon the validity of the release. It can have no bearing upon the merits of the controversy involved in the suit at law. When the release was executed she was not under guardianship, and her attorney had not at that time thought the appointment of a guardian essential. Mabel Wellington was then 24 years of age, and presumptively competent to attend to her own affairs. Whether she subsequently became a proper subject of guardianship is no concern of the House of the Good Shepherd, the defendant in the suit at law. It can make its defense just as well as if no guardian had been appointed. There was therefore no authority to issue the injunction.

The writ will issue as prayed.


author: Hooker, J.

text:
    C. F. & G. W. EDDY v. LAMB.

    1. Appeal and Error — Presumptions—Evidence.
    Where, in an action for a balance due the consignee of certain hay, the findings of both the referee and the circuit judge state that there were reports that certain of the hay was off grade, it must be presumed, in the absence of the evidence, that there was some showing of such reports.
    3. Reference — Report of Referee — Review—Question of Fact.
    The finding of a referee upon a question of fact supported by evidence is not subject to review.
    3. Same — Report—Exceptions—Finding of Court — Error.
    Where a referee found that there were a number of reports that certain hay was off grade, a finding by the circuit judge, on exceptions to the referee’s report, that there were few such reports prior to a certain date was not fatal error, unless such finding made a difference in the legal status requiring the reversal of the referee’s conclusion of law.

      4. Same — Exceptions—Necessity.
    Where a referee was not requested to confine his findings as to certain reports to a period prior to a certain date, and no exception was taken to his failure to do so, the question of fact was not reviewable on exceptions to his report.
    5. Same —Finding of Referee — Mixed Question of Fact and Law — Practical Construction of Contract — Conolusiveness of Finding.
    The question whether parties have, by their conduct and acquiescence, given a practical construction to their contract, is one of mixed fact and law, the determination of which by a referee is conclusive unless totally unsupported by the facts stated in his report.
    Error to Lapeer; Dodds, J., presiding.
    Submitted June 30, 1907.
    (Docket Nos. 80, 81.)
    Decided October 4, 1907.
    Rehearing denied January 6, 1908.
    Assumpsit by C. E. & G. W. Eddy against Horace Lamb and George R. Lamb, copartners as Horace Lamb & Co., for money had and received. There was judgment for defendants, and both parties bring error.
    Reversed, and judgment entered for plaintiff.

      Geer, Williams & Halpin, for plaintiff.

      William E. Brown and B. L. Campbell, for defendants.

      The opinion filed on the original hearing in this case was withheld from publication pending the rehearing.

   Hooker, J.

The plaintiff, a foreign corporation, sued defendants, copartners, for a small balance claimed to be due upon transactions involving the shipment, from the latter to the former, of several hundred car loads of hay. The cause was sent to a referee, who filed his conclusions of fact and law, exceptions to which were heard, and a judgment for the defendants was rendered, in the circuit court. The cause is before us on separate appeals, taken by the respective párties. We dispose of both together.

The plaintiff claimed a balance due to it of $762.98 and interest, while the defendants claimed that there was a sum due them amounting to $1,875.39 and interest. The judgment was for $265.22 in defendants’ favor. The hay was shipped under an oral arrangement made between the parties, and the referee’s report shows that he found that this arrangement amounted to a contract, whereby the defendants were to ship a quantity of hay for shipping or export purposes, at $10 per ton f.'o. b. Boston (Mass.); that subsequently the price on shipments to follow was reduced to $9.20 per ton by agreement of the parties, and later still to $9.10; that on hay of this grade there was a freight rate of 23 cents a ton on car lots with a minimum of 20,000 lbs.; that hay was shipped under each of these agreements; that it was defendants’ practice to mail to plaintiff invoices pf shipments, giving car numbers, and Imlay City weight, and the price computed ,at the contract price, less freight at the 23-cent rate, and advising plaintiff of the amount of the draft, which accompanied the bill of lading. Shipments were made to defendants’ own order, and bills of lading with drafts attached were sent through their banker. The plaintiff paid the drafts on all cars sent. It also paid the freight; all shipments received at Boston were inspected, by sworn inspectors, appointed by the city, employed and paid by the plaintiff, and it was furnished with certificates of inspection; the plaintiff reported to the defendants by numerous sales reports which referred to the respective cars by number, stating the amount of freight paid on each car, the Boston weight, the price per ton at which they were credited' to the defendants, the amount advanced, and the balance due either party, after deducting from such credit the amount of freight and advances; in a number of instances the Boston inspection showed that the hay was not up to grade and in such instances the hay was sold by the plaintiff to the best advantage and the amount realized was credited and reported to defendants, less a commission of 50 cents a ton; freight charges paid by the plaintiff were excessive in some instances, but to what extent the referee was unable to determine, but plaintiff recovered from the railroad such excess charges $213.81.

The referee gave plaintiff credits as follows:

Balance on old account agreed on_________ $8 55

Drafts paid.......... 17,011 35

Freights paid — .....................-............ 17,507 70

Total................................ $34,527 60

. Defendants were given credit as follows:

Freights recovered ---------- $213 81

Am’t due on shipment on Boston inspection_____ 33,497 14

Total-.................... $33,710 95

One car of hay was burned in the Boston railroad yards, and defendants were credited with this at $53.67. The referee found a balance due to the plaintiff of $762.98 plus interest, aggregating $1,087.62.

The circuit judge modified the finding for the following reasons: He said that the referee’s report failed to state that there was a warranty of the grade of hay, and that no exception was taken thereto by the plaintiff. That it was the duty of the plaintiff to report the fact that the hay was not up to grade. This it did not do except in' a few instances, but instead converted the hay and reported the price, with which it credited the defendants, which often was less than the contract price. He added that after receiving such reports the defendants made no complaint but continued to ship until June 31, 1898. “After that date cars were cut in price, and there is no finding that defendants made any statement or committed any act that could lead the plaintiff to believe that they intended to give it the right to cut the price of the hay,” and that, having wrongfully sold them, it became liable for the hay at the contract price, a difference of $947.61, which he credited to defendants’ account, as stated by the referee, and directed a judgment in their favor for $364.36. It was actually entered by stipulation for $365.33, as already stated.

The plaintiff’s record does not contain the testimony taken before the referee. Its exceptions to the judgment are:

1. To the finding of the circuit judge that the plaintiff did. not, except in a few instances, notify the defendants when car loads of hay were found not to be up to grade.

3. In finding that there was nothing in the report that showed any intention on the part of defendants to allow the balance of the hay disposed of after June 31, 1898, to be cut in price on account of its condition.

3. In finding that the amount of hay in the 83 cars should have been allowed to the defendants at the contract price.

5 and 6. To the refusal of judgment for plaintiff and to judgment for defendants.

We must conclude that the testimo'ny showed something regarding the reports of hay being off grade because the findings of both the referee and the circuit judge say so. The number of said reports was a question of fact and if the referee passed upon it the question was not subject to review. People v. Wayne Circuit Judge, 18 Mich. 483; Ortmann v. Wilson, 23 Mich. 269, and note; Abbott v. Mathews, 26 Mich. 176; St. Denis v. Saunders, 36 Mich. 369; Runnels v. Moffat, 73 Mich. 199.

The referee found that there were a number of such instances. The judge found that there were but few prior to June 21st. We are of the opinion that this statement in his opinion was not a fatal error, unless we are to say that it made a difference in the legal status justifying the reversal of the referee’s conclusion of law, when, under his own finding, it would have been sound.

The second assignment is based upon a finding of fact also made by the circuit judge. The referee had made a general finding as to reports. He did not confine them to the period prior to June 21st, nor was he requested to, nor was an exception taken to his failure to do so. There was therefore no occasion for the review of this question of fact. Upon both of these findings of fact the referee was called upon to determine the question whether the parties had, by their conduct and acquiescence, given a practical construction to the contract. That involved a question of fact also, although its decision involved a question of law, and the circuit judge could pass upon it only by reason of the total insufficiency of the facts stated in the report to constitute a legal justification for the application of the rule. Had this been a trial before a jury the court should have left the question of acquiescence to the jury under proper instructions as to the law, upon the claim of the plaintiff, unless the proof was sufficient to conclusively show it, which is unnecessary to decide, and it was before the referee exactly in that way. The question was a mixed question of law and fact. The findings of the referee should not have been reversed, if to do so it was necessary to vary his findings of. fact. We think that it was so, and therefore the court erred in holding that the defendants should have been credited with the item.

Counsel for defendants, in their appeal, have raised and discussed many questions that become unimportant by reason of the findings of the referee. Many of these do not appear to have been passed upon or urged before the circuit judge. A large number relate to the admission of evidence and the conclusions of fact drawn by the referee. Counsel have not confined their assignment of errors to those alleged to have been committed by the circuit judge, but have assigned error upon many of the rulings of the referee, with which we can have nothing to do unless the action of the circuit judge thereon is alleged and shown. Eliminating these last, there are but three assignments of error committed by the circuit judge left. The first two have been covered and disposed of by what has been said. The other is an allegation of error in refusing to render judgment for $1,980 for defendants.

Practically on both records the case is resolved into the question whether the circuit judge erred in crediting the defendants with $947, and upon the grounds heretofore stated. We feel constrained to say that he did, for the reason that the referee’s determination was final upon the question of the practical construction of the contract by the parties.

The record permits us and we therefore order judgment here for the plaintiff in conformity to the referee’s report for $1,087.62, with interest at six per cent, from September 28, 1905, with costs of all courts. The plaintiff will recover costs of all courts and on both appeals.

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


author: Montgomery, J.

text:
    KUNDINGER v. KUNDINGER.
    1. Specific Performance — Contract to Bequeath — Claim Against Estate — Concurent Remedies.
    The case of McNamara v. Michigan Trust Co., 148 Mich. 346, sustaining the jurisdiction of the probate court to allow a claim, against the estate of a deceased person for breach of a contract to bequeath, does not exclude the jurisdiction of equity to decree specific performance of such a contract.
    3. Same — Parol Contract — Statute of Frauds.
    The statute of frauds presents no obstacle to decreeing specific performance of a parol contract to provide for divorced wife by will.
    3. Same — Jurisdiction.
    Equity has jurisdiction to decree specific performance of an agreement to bequeath, other essentials of equity jurisdiction being present.
    4. Same — Adequate Remedy at Law — Provision for Support.
    The breach of an agreement to provide by will for complainant’s adequate support during her lifetime cannot be adequately compensated by a payment of money, such a provision being as safe for complainant as a spendthrift trust, whence specific performance may be decreed.
    5. Husband and Wife — Contracts — Competency — Divorce — Provision for Support.
    Where a wife has been granted a divorce under such circumstances that she is entitled to her dower interest in her husband’s lands and provision for her support, the parties are competent to contract that, in consideration of her foregoing enforcement of her rights during his lifetime, he will make adequate provision by will for her support.
    6. Courts — Jurisdiction—Probate Court — Equitable Trust.
    Where an estate is charged with an equitable trust for the , support of a beneficiary, the probate court has not the jurisdiction to determine the amount of money necessary to be used for that purpose.
    7. Same — Testamentary Trusts — Enforcement—Jurisdiction of Equity — Statute.
    Act No. 353, Pub. Acts 1899, relates tp the jurisdiction of probate courts over testamentary trusts and trustees, and is limited to carrying into effect provisions actually made by will; but if the jurisdiction were not so limited, and could be held to extend to the administration of a trust created by a contract to bequeath, such holding would not deprive the chancery court of concurrent jurisdiction, such jurisdiction being expressly preserved by section 46 of the act.
    Appeal from Saginaw; Gage (William G.), J.
    Submitted November 18, 1907.
    (Docket No. 86.)
    Decided January 7, 1908.
    Bill by Krescentzia Kundinger against Mary Kundinger, James A. Slocum, trustee, and others, for the specific performance of a contract. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      F. L. Eaton (Eugene Wilber, of counsel), for complainant.

      F. É. Emerick, for defendants.
   Montgomery, J.

This is a demurrer to a bill of complaint in chancery. The bill alleges that the complainant .married Michael Kundinger in 1861, and had by him five children, all of whom are still living; that he left her in 1875, and that on the 15th of March, 1877, a decree of divorce was granted in complainant’s favor, on the ground of defendant’s adultery. The bill further states that on the granting of the decree of divorce she was entitled to a dower interest in his property by virtue of section 8639, 3 Oomp. Laws; that during his lifetime, on various occasions, she importuned him for assistance, and he sent back word that, if she would refrain from bringing legal proceedings to enforce her rights and procure alimony, he would care for her after his death, and that on occasions when she sent to him for support he reiterated the statement that, if she would refrain from taking legal proceedings, he would take care of her and provide by will for her support after his death'. The bill avers that she relied on such promises, and did refrain from taking legal proceedings, and that he left an estate worth $45,000 or $50,000, which he undertook by will to confer upon defendant Slocum, in trust. The prayer of the bill is for a specific performance of the alleged agreement to make adequate provision for complainant by will in consideration of her refraining to take legal proceedings to enforce her right of dower. The demurrer presents the question whether a court of equity will entertain a bill for specific performance, under these circumstances.

It is contended on the part of the appellant that the remedy is by filing a claim in the probate court for the damages suffered by reason of the failure to perform the contract, and the recent case of McNamara v. Michigan Trust Co., 148 Mich. 346, is cited in support of this contention. That case is authority that the party situated as is the present complainant may file a claim in the probate court and recover damages by reason of the breach of the contract to provide for the support of claimant during her lifetime. But it will be noted that the case does not present the question of whether the election of the claimant to another remedy, viz., that of specific performance of the contract, might not have been open. It is to be noted that this case is not one to the prosecution of which the statute of frauds furnishes any bar, as was the case in Grindling v. Rehyl, 149 Mich. 641.

On the face of the bill a valid contract is stated. The question is, then, whether adequate relief can be afforded by remanding the party to the probate court. The probate court, it will be apparent, has no machinery by which to compel specific performance of the contract. If, then, specific performance of such a contract is a proper remedy, it would seem that resort to equity is necessary. It can be said at least that specific performance of a contract of this nature is not a new remedy for a breach. The case of Chubb v. Peckham, 13 N. J. Eq. 207, sustains the jurisdiction of’ equity to decree specific performance. The case of Wright v. Tinsley, 30 Mo. 389, is another case in which an agreement to dispose of property in a particular way was enforced specifically. The case of Rivers v. Rivers, 4 Am. Dec. 609 (3 Des. Eq. [S. C.] 190), was another case in which such jurisdiction was entertained. Indeed, we think that the best of reasons can be urged for equity entertaining jurisdiction in such case. We are assuming now that such a contract exists, and that the wife has been by contract assured of an adequate support during her lifetime. This support would naturally come to her as needed. One of the chief values of such a contract to the complainant is that it removes any care or concern as to the future and assures the payment to the complainant of a sufficient amount for her support at the time when it is needed for that purpose. No provision in dollars and cents could quite as efficiently meet this requirement. The contract is as safe for complainant if specifically enforced and performed as would be a spendthrift trust. We think it was competent for the parties to contract in this manner, and it is competent for the court to enforce the agreement. That the probate court has not the jurisdiction to determine the amount needed for this purpose, if the estate was found to be charged with anything in the nature of an equitable trust, see Hull v. Hull, 122 Mich. 338, 149 Mich. 500. The case does not fall within Act No. 253 of the Public Acts of 1899, as that act relates to the jurisdiction of probate courts over testamentary■ trusts and trustees, and is limited to carrying into effect the provisions actually made by will. But even in such case, by section 46 of the act, the former jurisdiction of courts of chancery is preserved. The case of Cole v. Cole’s Estate, 125 Mich. 655, rests upon this statute.

The decree will be affirmed, with costs, and the case remanded.

Ostrander, Hooker, Carpenter, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    ANGLEWICZ v. FREDA.

    Judgment — Equitable Relief — Sufficiency of Bill — Relief on Appeal.
    A bill to set aside a judgment of restitution rendered by a circuit court commissioner alleged that complainants, while in possession of the premises under a contract of purchase, had made repairs and paid a part of the purchase price, and that, defendants, while complainants were in court ready to defend, obtained the judgment complained of without their' knowledge, from which complainants were prevented from appealing by defendant’s agreement to accept the balance of the purchase price and deed the property to a purchaser from complainants. The bill did not set forth the nature of the defense proposed to be made, nor that the balance due upon the purchase price was ever tendered to defendants, nor that complainants were ready, able, and willing to pay it, and no tender was made in the bill. It was not averred that defendants knew or had reason to believe that complainants proposed to appeal from the judgment. On appeal by complainants from a decree dismissing their bill, the only relief asked was that a decree bo entered in favor of complainants for the amount of repairs, for the rent of a building on the premises used by defendants, for the rent of a house for complainants since defendants obtained possession of the premises, and costs. Held, that complainants were not entitled, to the relief prayed.
    Appeal from Wayne; Mandell, J.
    Submitted October 17,1907.
    (Docket No. 89.)
    Decided December 10, 1907.
    Bill by August Anglewicz and Rosa Anglewicz against Frank Freda and Augusta Freda to set aside a judgment of restitution. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Thomas A. Conlon, for complainants.

      M. B. Breitenbach (Stewart Hanley, of counsel), for defendants.

       Rehearing denied February 15, 1908.

   Ostrander, J.

It is. charged in the amended bill -of complaint that on September 6, 1902, defendants as vendors, and complainants as vendees, entered into a written contract for the sale and purchase of certain real estate for the sum of $1,200, payable $100 down and $50 every six months with interest; that one payment of $25 was made upon the principal July 9, 1906; that the interest had been paid in full; that on July 18, 1906, defendants began proceedings before a circuit court commissioner to obtain possession of the premises, and that on July 23d, judgment of restitution was entered by the commissioner; that on July 28th (Saturday), the last day for appealing from said judgment, an agreement was made between the parties, by the terms of which defendants agreed to take the balance of the money due upon the contract and deed the premises to complainants or to some person to be by them designated; that complainants had on that day secured a purchaser of the premises, willing and ready to pay for the same upon the furnishing of a proper abstract and the tender of a deed, the transaction to be completed during the succeeding week; that except for the arrangement so made complainants would have appealed from the judgment rendered by the circuit court commissioner; that instead of performing the said oral agreement, the time for appeal having expired, the defendants declined to proceed any further with the matter. Thereupon, and on July 30,1906 (Monday), this bill was filed. Itis charged, apparently as matter of excuse for failure to make payments upon the contract according to its terms, that the premises purchased were found to be in a bad state of repair and unfit to live in, and that ' defendants told complainants to make necessary repairs and it would be all right with them so long as complainants paid the interest; that complainants from time to time expended in one way or another, in repairs and betterments, the sum of about $350; that after the land contract had been made defendants asked for and were given permission to use a portion of the bam upon the premises, for which rent at a rate not agreed upon was to be paid and that defendants caused a rider to be attached to the land contract reserving the use of certain parts of the barn for a period of eight years. It is also further charged that complainants attended at the office of the circuit court commissioner in obedience to the summons and took with them certain witnesses and remained in the office of said commissioner until noon, and that, although they saw the defendant Frank Freda in the court-room, saw him sworn, and apparently doing business with the commissioner, they had no information concerning what was going on until they were informed by the commissioner that a judgment of restitution had been entered. The nature of the defense proposed to be made is not set out and is not apparent. The prayer of the bill is that said judgment may be declared null and void; that defendants may be ordered to receive the balance due on the purchase price of said property and deed the same to complainants or to some person by them to be designated, or may be decreed to allow complainants to make payments upon the contract, and to vacate the barn; that defendants may be ordered to pay for the work and money put upon the premises, and that the rights and interests of the parties may be ascertained and determined and an accounting had. It is not charged that the balance due upon the contract, which it is agreed was the sum of $1,075, was ever tendered to the vendors, no tender is made in the bill of complaint, it is not averred that complainants are able, ready, or willing to pay the amount due upon the land contract. It is not averred that defendants knew or had reason to believe that complainants proposed to appeal from the judgment of restitution. The bill was answered, replication filed, and the cause heard in open court. At the conclusion of complainants’ case, and without the introduction of any testimony on the part of defendants, the injunction which had been issued was dissolved and a decree was entered dismissing the bill of complaint. It is stated in the brief for appellants that the vendors have been in possession of the premises since some time in October, 1906. It is clear that no accounting is necessary. The testimony produced for complainants satisfies us that the rider attached to the contract, in which defendants reserved for the period of eight years the use of the barn, was' made and agreed to at the time the contract was executed. It does not satisfy us that defendants, with respect to deferred payments of principal, did more than to postpone .them, and it may be inferred that the grace extended had some relation to the fact that the vendees were improving the property. On March 23, 1906, the vendors served upon the complainants some sort of notice, and we infer, for want of other proof upon the subject, and in support of the judgment of the commissioner, that it was a 90-day notice to quit. Assuming, but not deciding, that the bill can be sustained and relief granted upon the theory that complainants may have specific performance of the contract notwithstanding the judgment, we do hot understand this to be the theory of complainants’ counsel. In this court the only relief asked is, that a decree be entered “in favor of complainants for the amount of repairs, $346.20, four years’ rent of barn at six dollars per month, $288, and the year’s rent for house which complainants have been obliged to pay since October, 1906, $120, together with costs of all courts to complainants.” It is clear that complainants are not entitled to this relief.

The decree of the circuit court for the county of Wayne, in chancery, is affirmed, with costs.

McAlvay, O. J., and Carpenter, Hooker, and Moore, JJ., concurred.