author: Cooley Oh. J.

text:
    Francis Gilman v. Hyacinth Riopelle.

      Authentication of Zf. S. documents: Certificates: Mate law. The mode of authenticating the documents, records and proceedings of any of the departments, or courts of the United States is governed by the laws of the United States, and by the practice of such departments and courts, and not by the statutes of a State. — Lacey v. Davis, h Mich. IkO.

      Official certificate: Evidence to what extent. In an action of ejectment, a paper purporting to he a copy of a surveyor’s field notes on file in the United States Land Office, and referring to several distinct land claims, was offered in evidence, under an objection that the official certificate attached did not cover all of the claims contained therein.

      Held, that it does not follow that because something is incorporated in such a paper which the ¿certificate does not cover, the paper is to he wholly excluded.
    The fact that a portion of the recitals are not authenticated may be a sufficient reason why such portion should not he read, but cannot constitute a ground for rejecting another and entirely distinct and separate portion which is properly authenticated.

      Evidence: Consideration in conveyance: Value of premises. Where the question in dispute is, whether a quit claim deed conveyed the fee in the land described, or a leasehold interest only, it may he proper to put in evidence, to show that the real value of the land was many times greater than the consideration stated in the deed.

      Evidence: Hearsay: Proof of tenancy. Where, in ejectment one party claims that a person who had been in possession of the land in dispute occupied, as owner, while the other claims that he was in under a contract of lease, it is proper for the latter to give evidence of a conversation between a claimant to the land and'such person, before the latter took possession, tending to show negotiations for a leasing by him. Proof of such a conversation would not be hearsay, and it would he as competent to make it by a bystander as by the parties thereto.

      Evidence of motive. A witness cannot be asked why another party “wished” a certain act done which he directed, unless some statement of his purpose or motive accompanied the direction.

      Tax-titles based upon unpaid taxes by one in possession: Evidence. A deed given on a sale of lands for taxes cannot be excluded as evidence, on the ground that the tax purchaser was in possession when the tax accrued, if the fact of such possession is in dispute, and not admitted by the claimant under the tax title.
    Nor if the possession, at the time were undisputed, would it he sufficient ground for rejecting the deed, as that fact would go to the validity of the deed, and not to its admissibility.

      Tax-Title: Matute of Limitations: Possession: Evidence. The ten years limitation in the tax law of 18d2 — Laws of 181&, p. 138 — does not apply in favor of a party who was in possession under some other claim, at the time of obtaining the tax title. It intends that the party who seeks the benefit of the limitation shall enter, or shall have entered, into the actual possession under his tax deed.

      Held, also, that this is 'an objection going to the effect and sufficiency of the deed, and not to its admissibility.

      Conveyance; Description of premises. Where definite and permanent boundaries are given, a deed must be considered to convey all tbe land within those boundaries, notwithstanding the quantity is much greater than thaf'mentioned.

      Conveyance: Description for purposes of assessment. The premises in a tax deed were described as “ thai part of private claim 61 lying east of the north branch of the River Ecorse, in township 3 S. of R. 11 E.”
    It was objected that this description was insufficient for'the purposes of assessment under the tax law of 1843, because not being the subdivision of any section authorized by the United States, for the sale of public lands, it was necessary under Section 2 (Laws of 1843, p. 66) “to state the name or number of the lot or tract, or by what other lands it is bounded.”

      Held, that the description was sufficient. The requirement that the premises shall be described by the lands which bound them, has reference to those cases in which the tract is not known by name or number, and in which such a description would be most likely to attract the attention of the person interested in the payment of the tax.

      Evidence: Custom as to gift of land to eldest son. Evidence of a custom among old Erench settlers to give their farms to their eldest sons, is not admissible to establish such a gift in a particular case, where no direct evidence of the gift has been given.

      Heard January 7.

      Decided April 13.

    Error to Wayne Circuit.
    This was an action of ejectment to recover 20 Ty=0 acres upon Private Claim 61, in town 3 south, range 11 east, being Ecorse, Wayne County; and one half acre nearly adjoining. Both parcels lie east of the north branch of the Ecorse river, and between the river and the northern line of town 3. The claim seems never to have been paténted to any person by the U. S. Government. Plaintiff 'claims title through one Ambroise Riopelle, whom he alleges claimed the land at, and befor’e, the evacuation, of this country by the English, under the Jay Treaty in 1796. That Dominique Riopelle, a younger son of old Ambroise, also claimed to own, and exercised acts of ownership over the whole claim, although no deed passed from Ambroise to him; and that Dominique deeded to plaintiff and Alexander, his brother, which brother quit-claimed to plaintiff that part in question in this suit. Plaintiff claimed that both Alexander and himself had exercised acts of ownership over the land, and that the possession of defendant and those through whom be claimed, was but a tenancy under plaintiff or his grantors.
    Defendant claimed a two-fold title:

      First. — Through. Toussaint Riopelle, who was the eldest son of old Ambroise Riopelle, who, it is claimed entered and exercised acts of ownership after his father’s death; through Sophia Vermet, wife of Joseph Vermet, and daughter of Toussaint, who entered in 1832, claiming title in fee, and who, with Joseph Vermet, her husband, conveyed to Abraham Blanchet by deed, July 8, 1845, who conveyed to Augustine Vieux, by deed, January 28th, 1852, who conveyed to Francis Gilman, defendant, by deed, December 20, 1852. The possession, since July 8, 1845, of Blanchet, Vieux and defendant, has been uninterrupted, and, as defendant insists, under claim of ownership.

      Second. — Under a tax deed from the State of Michigan, dated November 30, 1846, for tax sale made October 6, 1845, for delinquent taxes for the year 1843.
    Judgment was rendered for plaintiff.
    The exceptions 'to the rulings of the Court are stated in the opinion.
    The following are the errors assigned:
    1. The Court erred in admitting in evidence the copy of the field notes of Private Claim 61, and the adjoining claims 118 and 119, with the certificate thereto attached.
    2. The Court erred in admitting the evidence of defendant in error as to the value of the land in controversy in 1845, when it was first fenced.
    3. The Court erred in permitting Alexander Riopelle to testify to a conversation between Joseph and Antoine Vermet, when Joseph came to Antoine to see about getting the place.
    4. The Court erred in permitting Antoine Vermet to answer the question, “why did Dominique wish the (Laribell) . house thrown down ? ”
    5. The Court erred in excluding from evidence the Tax Deed from the State of Michigan to Abram Blanchet, dated' November 3, 1846.
    6. The Court erred in refusing to permit Burdeno to answer the question, “ what was the' custom among the old French settlers as to giving their farms to their eldest sons ? ”

      H. M. & W. E. Gheever, for plaintiff in error.
    1. The certificate of the copies of the field notes was defective. It purported to be a certificate of the notes of but one of the Private Claims in question.

      %. The evidence touching the value of the land in 1845, we submit, was irrelevant and tended to lead the jury from the true question in issue. The true principle upon which this kind of testimony should be excluded is, that it does not relate to the issue, and tends to call attention from ,the point in issue, to excite prejudice or sympathy, and the adverse party is not prepared to rebut it. — 1 Greenl. on Ev. $52.

    “It is not proper to allow irrelevant testimony to be considered when it can at all tend to embarrass the cause or mislead the jury.” — Penn. Mining Go. v. Brady, H Mich. 265.

      3. The conversation between Joseph and Antoine Vermet, in which statements prejudicial to his claim of title were made by Joseph, was inadmissible, as Joseph was not in possession of the land at the time. This action was based on possessory title, and the declarations of the parties, or those under whom either of them claimed, were admissible only as qualifying, or affecting their acts of possession. They are received to show the the nature of the possession. Hence we say, the thing to be qualified must exist, in order to admit the qualification. To admit the statements or declarations of a party, a stranger to the record — made at a time when he is not in possession — is, in effect, to admit hearsay evidence without qualification. These declarations are only relieved from the general disqualifications which attends hearsay evidence, when they possess the saving characteristic of concurrent possession. In other words, the admissions must be those of an occupant. — 5 Carr. & P. 575; 2 J. J. Marsh. 380.

    The rule seems to be almost without exception that occupancy must accompany the statements. — Jackson v. Vredenburgh, 1 Johns. 158; Church v. Burghardt, 8 Pick. 827; Reed v. Dickey, 1 Watts, 152; Norton v. Pettibone, 7 Conn. 319; Jackson v. Murray, Anthon, 105; Inhabitants of West Cambridge v. Inhabitants of Lexington, 2 Pick. 586; May v. Jones, 4 Litt. 21; Jackson v. Meyers, 11 Wend. 538; Hail v. Gittings, 2 Har. & J. 880; Little v. Libby, 2 Greenl. 242; Smith v. Martin et al. 17 Conn. 899; Hannon v, Pettitt, 5 Barn. & Adol.. 228; Carne v. Nicoll, 1 Bing. N. C. 1¡A0; Doe dein. Mantón v. Austin, 9 Bing. 41¡ Doe dem. Baggaley v. Jones, 4 Campb. 867; Greenl. on Bv. §§ 189 and 109.

    A few cases have held the contrary, but they have been afterwards given up by the courts which decided them. — 1 Phil, on Bv. (C. & H. notes), 196.

    And some authorities limit the statements to the time of entry. — Brabaker v. Poage, 1 Monroe, 125.

    4. It was an error to permit the witness Antoine Yermet to testify to the motives of Dominique Riopelle in wishing the Larribel house torn down. This is the fourth assignment.
    While the actions or declarations of a party in possession are clearly admissible as qualifying such possession, we submit a witness cannot testify to the motive which influenced such acts or declarations. The motive is to be found by the jury from the actions and declarations. It is for them to say whether such words or deeds evince a claim of title or not.
    5. The tax deed was improperly excluded. The objections to its introduction were:
    1st. The description was too general, in that while it purported to convey all that. part of the private claim east of the north branch of the Eeorse river — which was some 160 acres — it limited the amount to 20^¶- acres.
    We reply to this:

      a. The description is limited to that part of the claim east of the north branch of the Eeorse river in Township 3, S. of R. 11 E. and this is about one-half of that part of the claim lying east of the north branch of the Eeorse, or about 80 acres.

      b. But the principle is the same whether 80 or 160 acres, and we say, the description would be complete if the words “containing 20acres more or less” were omitted. These words cannot limit the amount to 20x^- acres.
    - In construing deeds, effect will be given to every part of the description if practicable, but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances in the description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as mistaken. — Jaclcson v. Moore, 6 Cow. 717; Emerson v. White, 9 Fost. Ifi9; 2 Parsons on Qont. 26, 62 and ncte; Broom’s Leg. Max. IfiS, 1¡Q9; Anderson v. Baughman, 7 Mich. 77 j Oicott v. Qagnier, 2 Mich. 881.

    This tax deed purported to convey all that part of private claim 61 lying east of the north branch of the Eeorse river, in township 3, S. of R. 11 E. This was capable of positive location. The 20-^- acres and the one acre in dispute lie in this tract of 80 acres somewhere. The record, then, we say, was notice to plaintiff when he took his deed from Dominique, July 1, 1848, of the real land intended to be covered by the tax deed.— Cooper v. Bigley, 13 Mich. 4-68.

    2. The second objection to the introduction of the tax deed was, that the description was not in accordance with the statute relative to the assessment and collection of taxes.
    We insist it was. The deed was given November 30, 1846, based upon a tax sale made October 6, 1845, for delinquent taxes for the year 1843.

      The taxes were assessed then under the act of March 8, 1843, which took effect March 18th, 1843. By the provisions of sec. 12 of this act, the assessments were required to be made between the third Monday of April and the fourth Monday of May. — Laws of 1848, ¶. 60.

    By the provisions of this act the description of real estate is required to be as • follows:
    When the land was not a government section or subdivision of a section:
    “If less or other than any such subdivision, it shall state the name or number of the lot or tract, or by.what other lands it is bounded.” — Act of 1848, § 16.

    This deed described the land as “ Private Claim No. 61,” and came within the requirements of the statute.
    3d. The third objection to the tax deed was that Blanchet was himself in possession of the land when the alleged tax title accrued.
    The facts do not sustain this objection. The objection is based upon the doctrine as enunciated by this court, that one in possession of lands, claiming title after taxes having become a lien thereon, can acquire no additional interest by suffering the land to be sold for such taxes and becoming the purchaser. — Lacey v. Davis, 4 Mich, lift ; Tioeed v. Met-calf, Ld. 579.

    But this doctrine has no application to this case. This sale was for delinquent taxes of 1843. Uuder the act of 1843 the assessment became a lien from the 1st of November of that year (1843.) — Act of 1848, §#$.
    Blanchet did not go into possession of this land until July 8th, 1845, nearly two years after this tax had become a lien upon the land.
    And this tax sale was made October 6th, 1845, about two years after this assessment became a lien, and only three months after Blanchet had acquired title, and gone into possession.
    Hence we say, Blanchet was a stranger to this land wheta the tax was assessed — when it became a lien — when it was returned as delinquent to the Auditor General' — -when it was sent back for sale to the County Treasurer — when it was bid in by the state — when the time of redemption expired, and when it was sent back to the County Treasurer a second time for sale.
    So the reason of this doctrine, which has its foundation in the obligation of a person to pay taxes on property in his possession, and which he claims to own, fails.
    . If the tax deed was admissible, it was a complete bar'to plaintiff’s recovery. By the statute passed in 1842, plaintiff’s action is barred if not brought within ten years. —Laws of 18]$, p. 188, §§ 1 and 2.

    This act is by special enactment made applicable to the law of 1845. — Laws of 1845, p. 82, § 16.

    Plaintiff’s right of action accrued July 8th, 1845, whem Blanche!, under whom defendant claims, went into possession. This ten years’ limitation was not repealed until the Revised Statutes of 1846 took effect, which was March 1st, 1847.
    This action, not having been brought within ten years after entry and possession under color of tax title, is governed by the act of 1842. — Perry v. Hepburne, 4 Mich. 165.

      G. N. Riopelle, and Levi Bishop, for defendant in error.
    1. The documentary evidence, from the General Land Office at Washington, was proper and sufficient in form.
    This evidence, in regard to the private claim in question and of the adjoining claims, was offered for the purpose of fixing the boundaries of the claims; and no objection was made to it, except with reference to the form of its authentication.
    The certificate is a printed form, which has been in use for all purposes of evidence, ever since the departments of the Federal Government have had existence.
    The document, taken altogether, is a regular, legal exemplification, technically, so called, and it therefore imports absolute verity. It imports, in the language .of the certificate itself, that it is a true, a literal, and a perfect copy of the papers, and of the whole of the papers exempli*fied. It would not be an exemplification unless it had this import and effect: such is the rule of evidence on the subject.— 1 Greenlfs Ev. 501; 1 Bouv. Law, Die. Ifi9; 1 StarJcie Ev. 189; 1 Phillip’s Ev. 884.

    These documents, thus certified from the several Departments at Washington, are expressly authorized by several acts of Congress, and are declared to be evidence in all courts of justice the same as the originals would be if produced.
    As to the' State Department. — Act of Sept. 15, 1789, 1 Statutes at Large, 69; Cited note a, on page 267 of Brightly’s Digest. As to the General ffiand Office.- — -Act of April 25, 1812, 2 Statutes at Large, 716; Brightly, p. Jfi2, § 8, 468, § 9, 464, § 86; Same, 468, § 9. As to Land Titles especially. — Act of January 28, 1828, 8 Statutes at Large, 721; Cited, § 14, on page 267 of Brightly. As to Treasury Department. — Act of Feb. 22,1849, 9 Statutes at Large, 84-7; Brightly 267, § 16. War, Navy, Attorney General and Post Office Departments. — Brightly, § 7, p. 267. Department of the Interior. — Act of May 81, 1854, 10 Statutes at Large, 297; Cited, Brightly 267, in Note.

    Such being the law of the United States, what has the statute of this state to do with the subject ?
    The objection to this evidence seems to have been based on § 71, p. 458, of R. S. of I846; 2 C. L. Art. 4,808.

    The statutes of this state cannot control Federal legislation upon the subject.
    Upon an examination of § 71 and what follows, it abundantly appears that it has reference solely to documentary evidence created aud existing in this state; or if it was intended to have reference to extra territorial evidence, it could only have been intended to provide for cases where the law did not otherwise provide for the authentication of such evidence.
    It is further to be observed that the papers in question do not derive their character as evidence from the laws of Michigan. They would have been evidence if no such institution as the State of Michigan had existed.

      2. The question put to the plaintiff below as to the value of the land in 1845, was clearly competent under the theory of the case, which we sought to establish.
    If the forty acres was worth $1,000, the jury might well infer that Blanchet, in paying but $100, was buying only a leasehold interest, instead of a fee as claimed by the defendant below.
    3. The conversation between Joseph and Antoine Verinet, which we showed by Alexander Riopelle, was not in the nature of an admission made by a person in possession, or by parties to the record. Such was not its character at all.
    The testimony was introduced to show that Joseph Vermut, under whom the defendant claimed, went on to the place in question, under an express agreement, as the tenant of Dominique Riopelle, from whom we derived the title.
    If the defendant, or those under whom he claimed, went on to the place as a tenant of him from whom the plaintiff claimed, he and they could not dispute our title, even if we had none; and this was what this testimony tended to pro ye. — Taylor’s L. and T. §§ 89, 91; Angelí on Lim. § m

    4. The testimony as to tearing down the house partly built by Larabelle, was to show an act of ownership by Dominique Riopelle in pursuance of his claim of title. This was competent in connection with our testimony that Dominique claimed to own the farm, and leased it to Joseph Ver met, under whom the defendant claimed.
    Occupancy and acts of ownership on even a. part of a tract of land are evidence tending to show possession of the whole. — B Bouv. L. D. 851, § 1¡.5; Elliot v.'People, 10

      Peters, 118, Iffi, 8, I; Moss v. Scott, 2- Dana, 275 and cases cited; 1 Goto. 286; Jackson v. Vermilyea, 6 Id. 681.

    5. The tax deed, dated in. 1846, for the tax of 1843, was given to Blanchet.

      a. The first objection to it is that Blanchet was in the occupancy and possession of the land from 1842 to 1852, covering the whole time of the accrual of the tax title, claiming title, according to the theory and case of the defence, from Joseph Vermet and wife. The tax title is therefore bad under the decisions of this court. — Lacey v. Davis, I Mich. lJfi, 150; Tweed v. Metcalf, I Id. 579, 586.

    If a party who enters on land after a tax has become-a lien upon it, cannot,. by bidding it off at the tax sale, acquire a cumulative title, much less can he do so, who is in possession during the whole time, back, even prior to the assessment.

      b. The ten years’ limitation provided by section 2 of the act of 1842, page 133, does not apply to the case, because the defendant or those under whom he claims, did not enter under, or in pursuance of, the pretended tax title. And besides, that act was repealed,, without reservation by the revised statutes. — R. S. 1816, p. 782.

    The tax title is bad, generally.

      c. It appears that the whole farm contains two hundred and twenty acres; that it crosses the river Ecorse diagonally; that Blanchet occupied a small part fronting on the Ecorse in 1843; and that in 1845 he took a deed from Joseph Vermét of two acres wide and forty acres deep.
    It must be assumed from the deed that the assessor intended to assess a tract one acre wide and twenty acres deep, but whether it was the twenty in question, or the other twenty bought by 'Blanchet, or the tAventy which lies alongside of them, must be left to conjecture; and in making the assessment he purports to include one hundred and sixty acres in the same description; being at least one hundred and twenty acres more than Blanchet ever pretended to own.
    Such uncertainty is enough to defeat any paper which is relied on as the source or as part of aj chain of title. — Y. M. Society v. Detroit, 8 Mich. 172, 181/..

      d. In order to constitute a good assessment and deed in the case, the presumption being that the description in the assessment is carried into the deed, the land ought to have been assessed by its name and boundaries, as required by the fourth subdivision of section 16. — Sess. L. 181/8, p. 66.

    In no other way, could a valid assessment be made of any part of this private claim, under the law then in force.
    6. The offer to prove the custom among the “ old French settlers, as to giving away their farms to their oldest sons,” was incompetent. We are not informed whether it was the coutume de Paris, or the coutume de Normandie, or the coutume de V Ecorce, which it was proposed to prove by the witness. Nor is it very clearly defined as to what “old French settlers” were referred to by the question; whether those of Acadia, or Montreal, or Mackinaw, or Detroit, or some other part of La Nouvelle France.
    The ordinance of 1787, as to the descent and distribution of the property of intestates; and as to the disposition of property by wills, in writing; and as to the transfer of property by deed, under seal, must prevail. — See §2 of the Ordinance.

    Or the acts on the same subject, to be found in the codes of 1820, or 1827, or 1833.
   Cooley Oh. J.

The exceptions to the rulings of the Circuit Judge, upon which the plaintiff in error insists in this court, will be noticed in the order in which they appear in the record.

The action was ejectment, brought by Riopelle to recover two parcels of land, the one containing twenty acres and seventy-four one hundreths of an acre, and the other one-half an acre, in private claim sixty-one, in the township of Ecorse, both of which parcels lie east of the north branch of the Ecorse river, and between the river and the northern line of the surveyed township number three south of range number eleven east. The plaintiff (below)' had no paper title, but claimed the land by long continued possession derived from Ambroise Riopelle, to whom the claim was originally confirmed. No evidence was given in the case to show that the land was ever patented to any one, and it was conceded by counsel on the argument, that it never had been.

I. To show the confirmation of private claim sixty-one to Ambroise Riopelle, the plaintiff introduced a document from the General Land Office, as follows:

“Extracts from field notes of Aaron Greeley, surveyor of private claims 1809.”
“No. 29 River Rouge, description No. 118, confirmed to Francis Trudell, commencing,” &c. [ Here follows description in full.]
“No. 30 River Rouge, description No. 61, confirmed to Ambroise Riopelle, commencing at a post standing on the south border of the River Rouge, between this tract and a tract confirmed to Francois Trudell, thence south twenty-nine degi'ees west two hundred and forty-nine chains and ten links to a hickory tree, standing in the line of St. Comb, thence north seventy degi'ees, thirty minutes west, eight chains, eighty-four links to a post, the southwest corner of a tract confirmed to Louis Visieve, thence north twenty-nine degrees east, two hundred and fifty-six chains sixty links, to a post standing on the south border of the River Rouge, thence along the boi’der of said river down stream south thirty-one degrees east, ten chains eight links to the place of beginning, containing two hundred and twenty acres and seventy-four hundreths of an acre. Detroit, 6th December, 1809. Aaron Greeley, surveyor of private claims.”
'■ “No. 31 River Rouge, description No. 119 confirmed to Louis Visieve, commencing” &c. (Here follows description in full.)

General Land Oefioe, April 11, 1868.

I, James M. Edmunds, Commissioner of the General Land Office, do hereby certify that the annexed plat and field notes are true and literal exemplifications of the plat and field notes of Claim No. ,61 on file in this office.

A copy of the plat of private claims on the River Rouge, showing claim sixty-one with claim 118 on one side and claim 119 on the other, was attached to this document, but. no question arises upon that. The defendant objected to the admission of this copy of the field notes in evidence,' because it did not purport to be a true copy of the whole of the original, and because it did not appear to have been, by the person or officer having charge of the original, compared with the original, and to be a true transcript therefrom, and of the whole of such original. The Circuit Judge overruled the objection.

So far as this objection was based upon a variance between the form of the commissioner’s certificate and the form prescribed by our statute for the authentication of copies of public documents ( Comp. L. § 4308), the ruling of the Circuit Judge was clearly correct. The mode of authenticating the documents, records and proceedings of-any of the departments or courts of the United States, is-governed by the laws of the United States, and by the' practice of such departments and courts, and not by the statutes of the State. — Lacey v. Davis, 4 Mich. 140. The form of 'this certificate is the usual one, and it is sufficient.

A more serious objection arises upon the fact that, while the copy purports to embrace the field -notes- of claims 118. and 119, the certificate of the commissioner does not expressly refer to them, but the words employed refer in express terms only to the plat and the field notes of claim 61. It is therefore argued that, so far as the field notes of claims 118 and 119 are concerned, there was no authentication whatever; and this objection appears to me to be well based in fact, whether sufficient in law to exclude the evidence, or not.

It does not necessarily follow, however, that because something is incorporated in such a paper which the certificate does not cover, that the paper is to be excluded even as to the matters which are well certified. If those matters which are not certified are immaterial, and cannot affect the case one way or the other, there is no reason for. wholly -rejecting the evidence. And even if they might have a bearing in the case, the fact that they are not authenticated may be a sufficient reason' why the portion of the document relating to them should not be read, but cannot be ground for rejecting another and entirely distinct and separate portion thereof, which is authenticated in due form.

In the present case, the field notes of claims 118 and 119 are not material or pertinent to the case, except as they may assist in defining the boundaries and identifying claim 61. But whether material or not, the objection of the defendant, which went to the whole document, and not simply to that part of it which related to claims 118 and 119 was clearly, I think, not well taken, and properly overruled. Had he objected to the reading of that portion which related to those claims, and been overruled, we might be required to examine the question whether that portion was material in the case or not; but the objection actually taken being too broad, and covering that part of the paper which was clearly admissible, the question of the materiality of the rest is not, I think, properly before us.

II. The second exception relates to the admission of evidence offered by the plaintiff, to show the value of the premises in 1845. To understand the ruling on this subject, we must see how the case stood at the time it was offered. The plaintiff had given evidence, tending to show, that before, at and after the evacuation of this country by the English, under Jay’s Treaty, in 1796, Ambroise Riopelle exercised acts of ownership over the land in question, built a house thereon, and claimed it as his own; that about 1837-8 or ’9, Joseph Yermet vent on to the place as a tenant of Dominique Riopelle; that in 1842, Alexander Riopelle went upon it as tenant of said Dominique, and that he, in that year, put Abraham Blanchet on the place, also as said Dominique’s tenant, and that while said Blanchet was so in the occupancy thereof, on July 8, 1845, he took a quit claim deed of the lands from Yermet, purporting to convey a fee, at the expressed consideration of two dollars and fifty cents per acre. Through intermediate conveyances, the defendant claimed title under this deed, while the plaintiff claimed that, in 1851, after he had acquired Dominique’s title, he let Augustus Yieux have the place as his tenant, and that defendant, as son-in-law of Yieux, occupied the premises under the lease to Yieux, in pursuance of an express agreement with the plaintiff.

This being the position of the case upon the evidence, the plaintiff was allowed, against the objection of the defendant, to show that the value of the premises in 1845 was $25 per acre. The object of this evidence was to raise a' presumption, that when Blanchet took the deed from Yermet in 1845, at an expressed consideration so greatly below the real value of the land, it could not have been understood or supposed that he was acquiring the fee thereby, but rather that he was receiving the conveyance of a leasehold interest only.

I do not perceive much force in this evidence, both because the title, being founded only on possession, could hardly be expected to command such a price as it would if perfect of record," and also because the consideration expressed in a deed is no very satisfactory evidence as to what the real consideration was which the party paid. The statement of the consideration, however, is open to explanation, and the circumstance that the title'is not of record is one to which it is to be presumed the jury will give due weight All the surrounding circumstances which can have any bearing in showing whether Blanchet took possession as tenant or as owner of the fee, ought to be allowed to be put in evidence, and, as having some relevancy, I think it was competent to contrast the real value of the land with the price which Blanchet paid for the title, right or claim which he bought. Standing alone, this fact can have no force whatever in opposition to a deed apparently conveying the fee; but it might have some weight in a case where the other evidence left in doubt the character of the claim which Blanchet made to the land.

III. The plaintiff gave further evidence, tending to show that while Dominique Riopelle claimed the land and exercised acts of ownership over it, and prior to the time when Joseph Yermet went into, possession, one Seabrook being-then on the land, and Antoine Yermet acting as agent for the plaintiff, Joseph Yermet went to said Antoine and inquired of him, if he would let him, said Joseph, have the land; and that Antoine replied that if he could buy out Seabrook, and Dominique was willing, Joseph might have the land on the same terms on which Seabrook held it. The evidence of this conversation was objected to, but admitted, and we think rightfully.

The defendant regards this evidence as having been admitted to characterize the possession of Joseph Vermet, and as not admissible on that ground, because at that time Joseph was not in possession. This, however, was not strictly the ground on which it was received. The evidence was one step towards establishing- a contract between Joseph Yermet and Dominique Riopelle, by which the former would become the tenant of the latter; and if such a contract was oral, and was followed by the surrender of possession by Seabrook to Joseph. Yermet, it cannot well be claimed the evidence of the negotiations Avas hearsay evidence. It Avould be clearly competent to prove such a contract by either of the parties to it, but it would be equally competent to prove it by any other person who was present at the time and heard it.

IV. The plaintiff then proved, by Antoine Yermet, that while Dominique Riopelle exercised acts of OAvnersbip over the land, there was a house upon it, supposed to have been built by one Laribell, which witness threw down by order of said Dominique; and he then asked the witness, with a view to sIioav the nature of the act of Dominique, as being in pursuance of his claim of title: “Why did Dominique Avish the house thrown down? This question was objected to as immaterial and irrelevant, but the objection was overruled, and the Avitness replied, “because he wished no one trespassing on the farm. Laribell went on to settle, and I tore it doAvn.”

It Avas entirely competent, I think, to show that Dominique Riopelle caused the house to be thrown down, in pursuance of his claim of -ownership, and in order to exclude any claim of possession on the part of Laribell; but this question was not properly framed to call out such evidence, nor was it obtained from the answer of the witness. He is not asked what Dominique said, but what his wishes were; and we do not know from his ansAver that he had any further means of knowing the purpose of Dominique, in directing the building to be torn down, or his wishes in regard to it, than such inference of motive as any third person might draw from his causing the destruction. It Avas not competent for the witness to testify to the motive of Dominique, unless, accompanying the direction, the motive was expressed; and this is not shoAvn to have been the case.

Y. The next exception relates to the refusal of the court to receive in evidence a tax deed from the Auditor General to Abraham Blanchet, dated November 30, 1846, and given in pursuance of a tax sale, made October 6, 1845, for delinquent taxes of 1843. I shall notice the objections to this deed as they are made in the brief of the plaintiff.'

1. That Blanchet was in the occupancy and possession of the land from 1842 to 1852, covering the whole time of the accrual of the tax title, and that, therefore, the title is bad under the prior decisions of this court. — Lacey v. Davis, 4 Mich. 150; Tweed v. Metcalf, Ibid, 586.

This objection is not tenable, because, in the first place, it assumes that the possession of the land by Blanchet during the period in question was an undisputed fact, and there is nothing upon the record to show whether it was so or not. Where a party objects to the evidence on the ground that certain other evidence put in by himself makes it immaterial and incompetent, he must first show to the court that the fact supposed to be proved by such other evidence is not controverted in the case. Otherwise, he is not to assume that it is conclusively established until the jury have passed upon it, and any evidence which is competent on the theory that the jury may find against him, is tó be received.

A more conclusive answer to the objection is, the fact that Blanchet’s possession, when the taxes accrued, only goes to the validity of the tax deed as a conveyance of the title, and not at all to its admissibility as evidence. The statute under which the deed was given made it prima facie evidence of the correctness of all the previous procéedings, and it was, therefore, clearly admissible, however conclusive might have been the other, facts which would show its invalidity.

2. The second objection to the deed is based.upon a claim which appears to have been made by the defendant that the statute of limitations had run in his favor — he having occupied the land ten years under a title derived from Blanchet, the tax purchaser. — Laws of 1842, p. 133.

The plaintiff is clearly correct, I think, in claiming that this statute of limitations does not apply in favor of a party who was in possession under some other claim — whatever may have been its nature — at the time of obtaining the tax title. The statute clearly intends that the party who is to have the benefit of the limitation shall enter, or shall have entered, into the actual possession of the lands, under his tax deed; and, if it were otherwise, a wide door would be opened to frauds on the part of persons who, being in possession of lands and bound to pay the taxes, shall attempt to cut off the rights of other persons by buying in the land for taxes which their duty to the public and to such third persons required them to pay. But this again is an objection which goes to the effect and sufficiency of the deed, and not at all to its admissibility.

3. It is insisted that the description in the tax deed is fatally defective. The description is “ the following described land, situated in the County of Wayne, to wit: that part of private claim sixty-one, lying east of the north branch of the river Ecorse, in township 3, south of range 11 east, containing twenty acres and seventy-four one-hundredths of an acre, be the same more or less.” The record shows that about one hundred and sixty acres of private claim sixty-one lies north of the north branch of the Ecorse, and that the north line of township three north of range eleven east would divide this nearly in the middle. There would therefore be in that part of private claim sixty-one, lying north of the north branch of the Ecorse, and in township three south of range eleven east, something like eighty acres of land. The plaintiff claims that it was clearly the intention in making the tax sale, to sell only twenty acres and seventy-four one. hundredths, and that it is impossible to locate this in any particular part of the larger quantity; but inasmuch as definite and permanent boundaries are given, the deed must be held to convey all the land within those boundaries, notwithstanding the quantity is much greater than that mentioned. This is on the familiar principle that the incorrect portion of the description • is to be rejected where that which remains is sufficient, and that definite and permanent monuments are to control distance and quantity.

The plaintiff also claims that the description in the tax deed was not sufficient for the purposes of assessment, under the tax law of 1843, under which the assessment was made, because, not being “ the subdivision of any section authorized by the United States for the sale of public lands,” it was necessary, under subdivision two of section sixteen of the Act of 1843 — S. L. p. 66 — to “state the name or number of the lot or tract, or by what other lands it is bounded.” In this case the number of the lot, a part of which was sold, is given, and definite and well-known boundaries which at each end separate the part sold from the remainder; and this, I think, complies with the statute. The requirement that it shall be described by the lands which bound it, has reference to those cases in which the tract is not known by name or number, and in which such a description would be most likely to attract the attention of the owner or other person interested in the payment of the taxes when it came to be- spread upon the tax roll, or advertised for the purposes of a sale.

I think, therefore, that the objections to the admissibility of the tax deed were not well taken, and that the court erred in excluding it.

YI. The defendant having given evidence tending to show some claim of right to the land on the part of Toussaint Biopelle, the eldest son of Ambroise Biopelle, called Augustus Burdeno as a witness, and, having proved by him that he was acquainted with the custom among the old French settlers as to giving their farms to their eldest sons, asked him this question: “What was the custom among the old French settlers as to giving away their farms to their eldest sons?” This question was objected to,- and excluded by the court.

■ The purpose of this question evidently was to raise an inference that Ambroise Riopelle 'had given to Toussaint, his eldest son, his possessory right to the premises; but however common may have been such gifts among the class of people to whom Riopelle belonged, it is plain that the frequency, of the practice could not warrant' an inference of a similar gift in any other case where .no direct evidence of it had been given. Whether such evidence would have been receivable in support and 'corroboration of direct evidence, that Ambroise Riopelle had put his eldest son in possession of the land, we need not inquire oil this record.

For the rulings, admitting'-the witness Vermet to testify to the wishes of Dominique’ Riopelle in tearing down the Laribell house, and excluding the tax deed from. evidence, the judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Cooley Ch. J.

license: Public Domain

text:
    Alexander Farwell et al. v. Patrick Fox.

      Replevin: Description. Where the writ and declaration in replevin described the property as “six oxen,” held sufficient.

      Heard April 8th.

      Decided April 13th.

    Error to Sanilac Circuit.
    This^ was an action of replevin for six oxen. The writ and the declaration described them as " six oxen.”
    The defendant demurred to the declaration, on the the ground that the description was insufficient.
    The Court overruled the demurrer, and gave judgment for the plaintiff. ' ' • •

      Wm. T. Mitchell, for plaintiff in error.
    The description of the property replevied was insufficient in both the writ and declaration. The description being “six oxen/’ without any other statement that would tend to distinguish the six taken from any other six oxen in the township or state.
    “The writ should, on its face, contain such a description of the goods as would enable the sheriff with reasonable certainty to distinguish them from other property of a like nature.” — Stevens v. Osman. 1 Mich. 92; De Witt v. Morris, 18 Wend. 4-96; Boot v. Woodruff, 6 Hill, m-

    “A declaration in replevin must state a place certain within the village or town.” — 10 Johns. 58.

    In this case there is nothing in the writ or declaration to indicate to the Court or officer .executing the writ what six oxen were to be taken under it, unless it is considered, that the allegation in the affidavit that six oxen were unlawfully detained by the defendants, is sufficiently definite. But the defendants, having in their possession more than =six oxen, would leave the officer 'very much in the dark in regard to the particular cattle intended.
    Although our statute does not require the particular place in the town to be stated, it does not do away with the necessity of a full description, so as to point out and designate the property from other of like kind and nature. If the particular case is essential to the description, then it is necessary. When the place is not required, the description should be more particular. '

      Divine & Wixson, for defendant in error.
    The only question in this case is whether the property was sufficiently described. The special cause of demurrer as set forth in the demurrer and assignments of error is that the “Declaration contained no proper or sufficient description of the property replevied.”

      1. In replevin the writ and declaration set forth the property claimed whether replevied or not; neither the writ nor declaration show that any property is replevied. If the officer actually replevy property other than that described in the writ (and declaration), that fact cannot be cause for • demurrer.
    2. The writ is in accordance with the requirements of the statute, and is as full and definite as the precedents. —2 Comp. L.%% 5010, 5011; Green’s Pr. 70, 71; 8 Burrill’s Prao. 4, 496; 6 Halst. 79.

    Its sufficiency could not be questioned by demurrer, but only by motion to set aside for irregularity. — Greeds Pr. 489, § § 1262, 1268; 1 Burrill’s Pr. 474-

    3. It was only in case of a taking as a distress, (the original use of the action), when the property was already in the custody of the law at a place of which the owner had notice, that it was necessary to disclose a place certain as that where the property was detained. — 3 Blade. Com. 18; 2 Burrill’s Pr. 18.

    It has been held unnecessary in this country, in case of a wrongful taking, and is clearly unnecessary, in all cases under our statute. — 1 Broione, Pa. 60; Qomp. L. %5029.

    4. Reasonable certainty in the description is all that is required. — ■2 Burrill’s Pr. 18; 1 Ohitty on PI. 165; Root v. Woodruff, 6 Hill, 416; Gomp. L. § 5028.

      a. The name, number or quantity and value constitute a sufficient description, and it is only in the absence of such a description that the property need be otherwise identified. This is all that is decided by the cases on which we suppose plaintiff in error relies. — Stevens v. Osman, 1 Mich. 92; DeWitt v. Morris & Platt, 18 Wend. 496.

    In the case of Stevens v. Osman stress is laid 'on the fact that the action is for a wrongful detention; but under our practice there is no distinction between replevin for a wrongful taking, and that for a wrongful detention. Gomp. L. % % 5010, 5012, 5028; Trudo v. Anderson, 10 Mich. 357.

      b. In this case the description is sufficient and is fully warranted by the precedents. — Stephens on PI. 48, 44; 8 Burrill’s Pr. 296, 297; Id. 496; 6 Ilalst, 79; Ruch v. Morris, 28 Penn. 245; Root v. Woodruff, 6 Hill, 418.

    By the giving of the bond under the statute, after the property is taken by the officer and appraised, and before delivery to the plaintiff, the defendant is fully indemnified. A mistake by which property, not the subject of controversy, should be replevied, would be fatal to the plaintiff’s case. . His interest is, therefore, so direct that he may be safely trusted to point out the property described in the Avrit.
   Cooley Ch. J.

Since the case of Stevens v. Osman, 1 Mich. 92, a very strict practice has prevailed in this state regarding the description of property in replevin suits; and we were at first not disposed to unsettle that practice by going back to that which prevailed before. A little reflection, however, has satisfied us that the rule, as generally understood, is needlessly stringent, and that no good purpose is subserved by requiring a more particular description than has been given in this case.

The case of Stevens v. Osman is authority only for holding that in replevin for grain or other chattels defined by measurement, a description indefinite in point of quantity, and not othenvise made certain, is fatally defective. The present case does not fall within that ruling. What the Court say concerning the necessity of the writ containing such description of the goods as will enable the officer to distinguish them from other property of a like nature, has reference to the indefiniteness there appearing, and can be applied to cases like the present, only so far as the supposed defect in the description produces a similar difficulty of identification.

It is impossible, in most cases, to give such description of property as will absolutely separate and distinguish it from all other property of a similar nature. The number and specific names of chattels can be readily given, and in most cases other characteristics can be mentioned3; but they would only tend to reduce the number of similar chattels which would fall within the description, and would not absolutely distinguish the articles demanded from all other chattels. In replevin for these oxen, for instance, if the plaintiff had described them as red oxen, he would have specified a characteristic, which would preclude the writ being applied to animals of a different color, but he would nevertheless have only defined the class to which those which are the subject of the suit belonged, and the description would be only one degree less indefinite than if the color were not mentioned. Nevertheless such a description would probably not be objected to as insufficient, though it is apparent that it would be. impossible for the officer from this alone to distinguish and take possession of the property intended. In practice he is. not usually expected to do this, but the plaintiff, or some one on his behalf, is present at the seizure, and points out the articles to which the affidavit relates. The defendant has no interest in a more particular description than appears in this record; and as the only result of demanding more particularity would be to subject parties to bills of costs where they had only followed the usual books of precedents, we think it proper to affirm the judgment of the court below, which held the declaration sufficient.

The other Justices concurred.


author: Graves J.

text:
    The Grand Trunk Railway Co. v. Richard I. Nichol.

      Evidence; Agency: Province of Court. A person in the employ of the Grand Trunk Railway Company as station agent at Port Huron, in a suit for extra services, testified under obection as to what one Christie, another agent of the company, had told him would be done in case he performed certain extra duties.

      At this stage of the case there was no evidence that the agency of the said Christie extended to the said subject matter.

      Held) the testimony was incompetent.
    Where the testimony in a cause fails to make a case of liability against the defendant within the issue, it is the duty of the court to so instruct the jury.

      Heard April 9th.

      Decided April 13th.

    Error to St. Clair Circuit.
    This was an action of assumpsit brought to recover the value of alleged services rendered the Grand Trunk Railway Company by one of its agents.
    Upon the trial, the plaintiff was sworn as a witness, and testified as follows:
    I entered the service of defendant in May, 1856. In the latter part of 1859 or early part of 1860, I came to the Port Huron station. I continued in employ of defendant from May, 1856, to October 31st, 1862. I was station agent at Port Huron. My salary was sixty dollars per month. Mr. Bailey called on me and said it was contemplated to remove the agent at Sarnia, and put the Sarnia' and Port Huron stations under one management, and suggested to me to take the position. I told him I had all I could do at Port Huron. Mr. Christie afterward spoke to me about it. He was superintendent of the division of the road between Toronto and Detroit.
    Q. What did Mr. Christie say to you about it?
    Objected to by counsel for defendant as irrelevant and incompetent, being merely hearsay. Objection overruled and exception taken.
    A. Mr. Christie said the Manager had set his heart on it, and wanted me to give it a trial; that if it succeeded to his satisfaction, the salary would be; made all right. I told Mr. Christie what Bailey had said to me; Christie was superintendent from Toronto to Detroit. On these assurances of Mr. Christie, I accepted the position and discharged the duties for ten months.
    Q. What salary had you been receiving up to that time?

      Objected to as irrelevant and immaterial. Objection overruled.
    A. I received $60 a month. After this I was paid $6^0- a month more. I had been promised this before for my duties at Port Huron. It had been ordered, I think, in December, 1861. Thereafter I received $66^5- a month until I left.
    Q. What were the services on the Sarnia side worth per month from January until November ?
    Objected to as irrelevant and not admissible under the declaration. Objection overruled. -
    A. Worth as much as on the Port Huron side. The entire service was worth $110 a month. I so stated in my account with Mr. Brydges, after I left. I discharged the same duties on the Sarnia side which Holmes, my predecessor there had performed.
    (Counsel for the plaintiff thereupon read to the jury, under objection, certain letters written to him by said Christie upon the subject matter.)
    I know Mr. Bailey well. He was assistant General Manager of the road. At the time he made the proposition to me which I have spoken of, he said that my salary would be made all right. I told him that my duties were then quite heavy and I should hesitate to accept the position unless upon an increase of salary. This was in the latter part of October or first part of November, 1861. I after-wards repeatedly talked with Mr. Christie about this matter, nearly every month while I remained. I talked with no one else about it except Mr. Brydges. I expressed dissatisfaction to Mr. Christie that my salary was not increased as it should be, and he said each time I spoke to him about it, that there were objections at Montreal which he thought would be overcome by another month, and so it went on. These promises were not fulfilled up to the time Mr. Brydges assumed the management, which was in the summer or fall of 1862.

      Oil cross-examination the witness said:
    The addition to my pay was first received for the month of January, 1862, after my talk with Bailey. They increased it $6^&- per month. Christie used to employ men. That was the first month I discharged the duties on the Sarnia side. It was my duty to make out the pay-rolls each month for the men under me and for myself. I made and certified them as correct. After I entered upon the Sarnia duties, I divided my salary on the pay-rolls equally between Port Huron and Sarnia. The Sarnia half Avas paid in gold. (The pay-rolls from January, 1862, to November, 1862, inclusive, were here shown to the witness and identified by him.) These pay-rolls are in duplicate for each month — one for Sarnia men and one for Port Huron. The first name on the right-hand margin of thése pay-rolls is mine, and was Avritten by myself in each instance except those for April and July, and my name on those was written by another who had my authority. The signature to the certificate of each pay-roll is mine. I understand that Mr. Brydges possessed the authority to fix all salaries. I did not Avrite him about my salary until after I was discharged. Mr. Christie assured me almost every month that he would see that my salary was made right the next month. During this time, Mr. Jamison was paymaster, and Mr. Sanderson was auditor. Mr. Christie, I believe, is dead, and I don’t know where Mr. Bailey is. After I left, they Avent back to the old system of an agent at each station. They did not charge me house rent.
    On re-direct examination, the witness said:
    I divided my pay between Port Huron and Sarnia at the suggestion of Mr. Christie.
    Thereupon, without introducing further evidence, the plaintiff rested.
    The defendants, to maintain the issue on their part, introduced, as a Avitness, William II. Jamison, who testified as follows:

      In 1863 I was in the employ .of defendant as paymaster from Montreal, west. I paid the plaintiff every month. Mr. Christie is dead. I knew him, when living, in the employ of defendant. He had charge of the traffic department from Toronto to Detroit. He employed agents who had to be approved by the General Manager. Mr. Shanley was General Manager during the early part of the year 1863, and in the summer or fall was succeeded by Mr. Brydges. The General Manager had entire control of the fixing of salaries of station agents. Mr. Christie had no' authority whatever, and, so far as I know, did not assume to' have.
    On cross-examination, the witness said:
    Mr. Nichol spoke to me once or twice complainingly about his pay being less than it should be, but I never heard that he was promised more until now. I have no recollection that he ever told me so.
    S. E. Martin, a witness on the part of the defendant, testified as follows:.
    I am assistant superintendent between Port Huron and Detroit. Have been in the employ of the company a number of years. I knew Christie. He was superintendent of the road between Toronto and Detroit. His duties were considerably limited. Neither he nor any other superintendent had authority to fix the salary of station agents. That was entirely within the control of the General Manager. The superintendent may recommend an increase of salary, but he cannot establish it.
    The counsel for the said defendant requested the Circuit Judge to instruct the jury—
    1, That the testimony in the cause failed to make a case of liability against the defendant within the issue, and their verdict must be for the defendant.
    The Circuit Judge refused so to instruct, but charged the jury that if they should find that the defendant, by an authorized agent, promised the plaintiff that in consideration of his taking charge of the Sarnia station he should be paid whatever it was worth, defendant was liable to the amount of the value of such service as shown by the testimony. Exception taken.
    The Circuit Judge further instructed the jury that there was no evidence in the case from which the law would imply a promise of the defendant to pay the plaintiff anything for his services at Sarnia, but that they must find there was an actual promise by the defendant to pay him for sueh service in order to find a verdict for the plaintiff.
    The jury rendered their verdict for the plaintiff, and assessed his damages at the sum of five hundred and ninety-six dollars and sixty-two cents.

      Wm. T. Mitchell, and E. W. Meddaugh, for plaintiff in error.
    1. The plaintiff haying failed to prove that Christie was an agent of the company, authorized to contract with or fix the pay of agents or other employees of the company, any conversation with him and statements by bim, were entirely irrelevant to the issue.
    Mr. Christie had no authority to bind the- company in that respect.
    To make his statements or agreements evidence, his authority must first be proved, beyond doubt, as to bis authority.
    There is not the slightest proof that Mr. Christie was the agent of the company to contract with the plaintiff below. — Bank of Baltimore v. Bateman, 7 Mar. & Johns. 10J¡..

    2. The proofs submitted to the jury did not make out a case against the company. Hence the court erred in refusing to charge the jury as requested, “that'the testimony in the cause failed to make a case of liability against the defendant, within the issue, and that their verdict must be for the defendant.”

      This refusal was equivalent to charging the jury that there was proof authorizing the plaintiff to recover. The judge' should .have stated the law upon the facts proved.
    "Each party has a right to have the law stated correctly to the jury, on the facts as he claims them to have been proved, when testimony has been given tending to sustain his views of the proof. — Whitney v. Lynde, 16 Verm. 679.

    It is the province of the court to determine whether the evidence conduces to prove the issue; and if the plaintiff wholly fails to make out his case, the court may instruct the jury to find for the defendant. — Perry v. GlarTc, 5 How. Miss. Jfi5.

    The court may in all instances inform a jury that there is no evidence, or no evidence sufficient in point of law, to establish a fact sought to be proved. — Farmers Banlc v. Duval, 7 Gill & Johns. 78; Roach v. Rulings, 16 Pet. 819; Wisner v. Davenport, 6 Mich. 601; Hill v. Ward, 2 Gilman, 285; Paschal v. Davis, 8 Kelly, 256; Ivey v. Phifer, 11 Ala. 585; Harris v. Woody, 9 Miss. 118; Powers v. Ingraham, 8 Bari. 576; Bradley v. Grosh, 8 Id. 1/.5.

    The evidence in this case was not in any sense legally sufficient to establish the agency or authority sought to be proved.
    8. There was no evidence of any promise or undertaking to pay plaintiff any additional sum, or what his additional services would be worth, even if Bailey and Christie had full authority to bind the company in that respect.
    The utmost effect of all Christie’s promises was that he would do all he could to get additional compensation allowed.

      Conger & Hams, for defendant in error.
    But two errors are assigned.
    1st. That the court erred in permitting the question to bo asked and answered:

      “What did Christie say to yon about it?”
    It was said on the trial that this question was “irrelevant and incompetent, being merely hearsay.”
    Hearsay, in its legal sense, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also in part on the veracity and competency of some other person. — 1 Greenlf. on Ev. §90.
    We submit that the evidence objected to, does not come • within this or any other legal definition of the term, hearsay.
    The testimony was as to a distinct fact, viz: a proposition to unite the management of the two stations, Sarnia and Port Huron.
    But Christie was superintendent of the division of the road which includes these two stations. He was agent of the company, and we claim that whatever the agent did in the lawful prosecution of his business, is the act of the principal.
    The agent’s statements are of the nature of original evidence, and not -of hearsay. — 1 Greenlf. on Ev. § 113.

    But suppose the answer to be stricken out, or had been ruled out on the trial.
    We claim that it could have made no possible difference with the result, for there is an abundance of testimony to warrant the verdict aside from that answer.
    The admission of evidence from which no injury could result to the plaintiff in error is no ground for reversing a judgment. — Minnesota Mining Co. v. National M. Co. 11 Mich. 186 j Rose v. Leiuis, 10 "Id. ¿88.

    An erroneous charge (and why not an erroneous admission of evidence) which could not'affect the verdict, is no ground of error. — Cummings v. Stone, 18 Mich. 70; Clark v. Moore, 8 Id. 55.

    The corporation, by its agents, knew that the work was being done (and a corporation can only work through its agents),.and we may safely rely upon the implied promise of the company to pay for the services rendered.
    It is for the jury to determine whether there was an implied promise or not.— Strong v. Saunders, 15 Mich. 889.

      2. The second error assigned, is, that the court erred in refusing- to charge “that the testimony in the cause failed to make a case of liability against the defendant within the issue, and their verdict must be for the defendant.”
    If there was any evidence whatever that tended to make out the case, the defendant in error had a right to have it considered by the jury. The weight of evidence is for them to consider, and Rot the court.
    The court cannot compel a plaintiff to become nonsuit. He has a right if he chooses to go to the jury with his case. — Oahill v. Kalamazoo Ins. Go. 2 Doug. 121¡.; II Mich 189; 15 Id. 882.

   Graves J.

In the fall of 1861, Nichol, the defendant in error, was in the service of the company as station agent at Port Huron, and was receiving $60 per month. While thus engaged, he was requested by two agents of the company, Bailey and Christie, to take charge of the Sarnia station also, and complied.

Neither Bailey nor Christie had or pretended to possess any authority to fix or change the salaries of station agents, and their want of power in this respect was well known to Nichol.

When it was proposed to him to act at Sarnia as well as Port Huron, some conversation took place respecting an enlargement of his salary, but nothing definite was said about it, nor did any one assume to guarantee any change in his compensation.

Nnder these circumstances, Nichol proceeded to act as agent for Sarnia as well as Port Huron, without any stipulation beforehand for an increase of pay. He con-tinned, however, to agitate the subject of enlarging his salary, and obtained the intercession of Bailey and Christie; and finally the company, in January, 1862, raised his wages $6.66 per month.

After this change of wages and for about ten months, at the end of which time he was discharged by the company, the defendant in error regularly made out and receipted his monthly pay roll, in which he charged the company $66.66 for his month’s services at both stations, one half for each, and receipted the same.

After his discharge he sued the company to recover an additional compensation for his ten months’ service, and obtained judgment for $596.62 and the company now seek a reversal of that judgment.

There are but two points in the case.

On the trial, the counsel for Nichol.asked the latter, while testifying in his own behalf what the agent, Christie, said to him about taking the Sarnia Station, which was objected to as calling for hearsay testimony, but the objection was overruled, and this presents the first question.

When this ruling was made, Nichol had testified that Christie, at the time of the conversation referred to, was an officer of the road, but it had not been shown in any way that his agency extended to those affairs to which the talk inquired about, related. Subsequently, it was conclusively established by the 'testimony of Nichol and Jamieson, that Christie had nothing to do with the adjustment of the salaries of station agents. It seems, therefore, that the question was open to the objection made to it, and should have been disallowed.

After the evidence had been given, the Court was requested, by the counsel for the company, to instruct the jury that the testimony failed to make a case of liability against the defendants within the issue, and that the verdict must be for the defendants.

The refusal to give this instruction presents the second, and only remaining question in the case.

It appears by the record that all the evidence given on the trial is embodied in the bill of exceptions, and an inspection of that evidence is sufficient to show that there was nothing whatever to prove that an express contract was made with the company for any greater compensation than Nichol received.

While there was no testimony tending to prove an express engagement, the evidence, in so far from justifying an inference that the company were to pay anything beyond $66.66 per month, actually repels such an inference, and emphatically excludes the idea of an implied contract for additional wages. Being in the service of the company for a fixed compensation, his duties were enlarged and he asked for an increase of pay and obtained it. He continued at work thereafter until dismissed by the company, and every month stated his demand according to the increased rate, and, on getting the money,' receipted the claim.

He may have beguiled himself with an expectation of further compensation, but there was no ground for anything more. substantial than an expectation according to this evidence.

As there seems to have been no conflicting evidence, nor any dispute as 'to what actually occurred, and no view which the jury were at liberty to take, could have supported the case of the plaintiff, I think there was error in refusing to charge as requested, and that the judgment should be reversed, with costs.

The other Justices concurred.


text:
    Daniel Van Valkenburg et al. v. Elizabeth Rogers, Administratrix.

      Contract; Evidence: Duty of Court. For the purpose of establishing a contract for the hiring of a certain boat, the plaintiff offered a letter directed to defendant, in which he offered to charter the defendant’s boat on specific terms. The defendant replied, by letter, in substance, that he would not like to charter the boat in the manner desired, but preferred to place the tug under plaintiff’s control as regarded rates of charges, etc.
    To this, plaintiff replied by letter, that he thought favorably of the plan, but desired to have some definite understanding as to what he was to give to defendant, and wished defendant to telegraph him, and whatever he wanted done regarding a bargain, he could do through a Mr. Westover.
    Defendant telegraphed plaintiff March 17th, to commence fitting up the boat. Plaintiff thereupon took possession of the boat, fitted her up at his own expense, and used her until the following September, when plaintiff took possession of her.
    In an action of Trover, the court charged that the several letters and telegram constituted a contract and entitled the plaintiff to the use of the boat during the season.
    Held, that while it was the duty of the court to tell the jury what the correspondence contained, and what it meant, the court erred in determining that said correspondence constituted a contract. While it showed that the parties had begun to make a bargain, it also showed that no bargain was completed.

      Heard April 10th.

      Decided April 13th.

    Error to Bay Circuit.
    This was an action of trover brought to recover damages for an alleged conversion of special property in the steam-tug Union.
    Upon the trial, the plaintiff offered in evidence certain letters and telegrams, of which the following are material portions:
    “Bat City, February 86, 1866.
    Messrs. D. A. Van Varkenbtjrg & Son :
    G-ents — I wish to know if you would charter your tug Union for the coming season. I would fit her out well and pay for such outfit and pay you two thousand dollars for such charter, as follows: Five hundred dollars on the first of June,*1866, five hundred dollars on the first of August, 1866, five hundred dollars on the first of October, 1866, and five hundred dollars on the first of December, 1866; and on laying her up would guarantee her clear of all claims which might accrue while under such charter. Could use her in connection with the tug Wave much better than alone, and would do your towing as reasonable as you could get it done otherwise. Please let me hear from you soon.
    Respectfully, &c., ' H. B. ROGERS.
    Lockport, March 7, 1866.
    Mr. H. B. Rogers : ,
    Dear Snt — Yours of the 36th of February was duly received and contents observed. You make us an offer for the charter of the tug Union. We would not like to charter the tug in just- the manner that you state it. We will put the tug under your control, except for what little towing we have for ourselves, so that you can control the matter as you think best at a reasonable rate, so that you can take the entire management of the matter. I think by putting them together will he a benefit to both parties. You can rely on ns to do anything that is right in the matter. If you think well of the plan, please write soon, and let us hear from you what you think about it.
    Yours Respectfully, D. A. VAN VALKENBURG & SON.
    Bat City, March 12, 1866.
    Messrs. Van Valkenbugh & Son :
    Gents — Yours of the 7th inst. is at hand. I think favorably of your plan, and will take tug Union with the understanding that your towing is to he done at any time that you may call for it, hut would like to have some definite understanding about what I am to do, or about what I am to give. If you know about what amount of logs you have to tow, please state how much I shall pay you besides doing your towing. It is high time that fitting and repairing had commenced. If I take her, painting and repairing should commence this week, and I would like to have you telegraph as soon as you get this, because nearly every other boat is ready to come out as soon as the ice clears from the river. I will do just as I agree, and as the season is far advanced, and little time left in which to make repairs, and it seems a long time to wait for an answer by mail, I think it would he best to let me hear from 'you by telegraph, and whatever you want done in relation to a bargain perhaps you could have it done through Mr. Westover, after informing him what you want.
    Respectfully, H. B. ROGERS.
    TELEGRAM.
    Locicport, N. Y., March 17, 1866.
    To H. B. Rogers, Esq., Bay City, Mich.:
    You can commence fitting up the tug Union.
    D. A. VAN VALKENBURG & SON.
    It was admitted that the letters signed H. B. Bogers were written and signed by the plaintiff and received by the defendant, D. A. Van Valkenburg. It was also admitted that the letters and telegram signed by D. A. Van Valkenburg & Son were written by defendant, D. A. Van Valkenburg, and the letters sent by mail, and the telegram by telegraph, and received by plaintiff.
    [ Counsel for plaintiff stated a the time of offering in evidence said letters and telegram to the court and jury, that he offered said letters and telegram for the purpose of proving a charter party or contract of hiring of the said steam tug between said Daniel A. Van Valkenburg & Son, and the plaintiff.]
    To reading the same in evidence, the counsel for the defendants objected, because, if the said letters and telegram constituted a contract or charter party, it was void, not being stamped with an internal revenue stamp as required by the laws of the United States.
    The Court overruled the objection and admitted the , evidence.
    It afterwards appeared in evidence, on the part of plaintiff that plaintiff took possession of said steam tug Union, immediately after the receipt of the telegram above set forth, which was on the day of its date, fitted her up in running order, and expended about five hundred dollars in making repairs and fitting her up, and that he continued in such possession up to the 3d or 4th of September, 1866, and used and operated the same; that on the said 3d or 4th day of September, 1866, said defendants took possession of said steam tug Union, and used and operated the same during the remainder of the season of navigation for said year '1866, which closed in the fore part of the month of December in that year. It also appeared in evidence, on the part of the plaintiff that the said defendant, Daniel A. Van Valkenburg, was owner of said tug.
    After the counsel for plaintiff had rested their case, the counsel for defendants produced and read in evidence two letters, which were admitted' by plaintiff’s counsel to have been written by the plaintiff, and by him sent to the defendant, Van Valkenburg, the material portions of which said letters are as follows:
    “Bat Citt, April 13, 1866.
    Messrs. D. A. Yan Vabkenbueg & Son :
    Gents — I have fitted up the tug Union in A 1 order, and had I been doing it for myself exclusively, I don’t know where I would have made anything better; have had her thoroughly painted, and carpenter work all that she needed, which was no small item, besides having her machinery thoroughly overhauled, and much of it made new; in short, have fitted her up for the whole season, everything as it should be, and since we have fitted her up, quite a number of blowers have made the remark that I would not have the tug very long, for they say that they intend to purchase her. Now, I want you to come here before you give any one an answer, an'd I want a chance to see what the tug can do for a season. These same men have said that the tug could not be made to do anything here. I wish you could have seen the way that the tug was laid up last fall.
    They did not do anything with the machinery, but left it standing just as they had last used it, and there was not a blanket or quilt on board, nor compass, nor tool, and I cannot find them: nothing but the mattresses are on the boat.
    I want a chance to buy the tug, and will bind myself to do your towing this season, and two or three seasons, at as fair or low rates as the lowest offered by any other parties, I care not who — and that, too, whenever you want it done, and would be more likely to do it by having two boats, and one of light draft, than any other parties here in that business.
    Please let me hear from you without delay, and let me know when you will be here, for I want to see you. Whatever I do will be on the square.
    Respectfully, &c. H. B. ROGERS.
    East Saginaw, August 14th, I860.
    D. A. Van Valkenburg & Son:
    Gents — I met a man last evening, who said he was going directly to Lockport to buy the tug Union, and I have heard of others who would like to purchase also. I have made the tug do something this season, and kept her in running order when there was a possible chance. A few days ago, I painted her thoroughly, so that she looks better than any other tug here. Last season no person would buy her at any price. Do not sell without giving me a chance. Consider my bid five hundred dollars . more than any other. There will be chance enough to sell after close of navigation. Let me hear from you before doing anything, at least.
    Respectfully, &c., H. B. ROGERS.
    The counsel for defendant then called as a witness said defendant, Daniel A. Van Valkenburg, who testified that he was owner of the said steam tug, before and at the time of the writing of the said letters first above referred to, and at the time plaintiff took possession thereof, and that he continued to be such owner until a short time before the 3d day of September, when he sold an undivided half interest therein to said defendant, Luther Westover and one Smith, a partner with said Westover, and that all of the negotiations between said plaintiff and said defendant, Daniel A. Yan Yalkenburg, in relation to the chartering and hiring thereof by plaintiff, or in relation to plaintiff’s, taking possession thereof, was by letter and telegram, and not otherwise. '
    The defendants further introduced evidence tending to prove that they took possession of said tug, with the consent of the plaintiff, and that, on or about the 3d day of September, 1866, there was a full and complete settlement between the plaintiff and said Van Yalkenburg, of all matters growing out of said contract in relation to said tug.
    The, counsel for plaintiff introduced evidence tending to prove that no such consent was given, and no such settlement took place.
    And, thereupon, the counsel for said defendants requested the court to charge the jury that if said letters, dated respectively, February 26th, 1866, March 7th and March 12th, 1866, and the said telegram of March 17, 1866, constituted a contract or charter of hiring of said tug, between said plaintiff and said Yan Yalkenburg, or between said plaintiff and said D. A. Yan Yalkenburg & Son, that then it was only a chartering or hiring at will, and determinable at the pleasure of either party thereto, and that, in such case, said Yan Yalkenburg, or any other person by him authorized, was justified in taking possession of the said tug.
    The court refused to so charge the jury, and defendants excepted.
    The court charged the jury that the said letters and the said telegram taken together, constituted the contract of hiring of the said tug Union, between said plaintiff and said Daniel A. Yan Valkenburg. To which said defendant excepted.
    The court further charged the jury that, by the said contract consisting, as aforesaid, of the said letters and telegram, said defendant was entitled to the possession of apd use of said tug Union until the close of the season of navigation for the year 1866.
    To which defendants excepted.
    The jury rendered a verdict for plaintiff for $1,548.75.

      Wm. L. Webber, and H. H. Hatch, for plaintiff in error.
    1. As to the first assignment of error: If this court shall hold that the laws of the United States, prohibiting the introduction of unstamped instruments in evidence, apply to state courts, then it seems clear that if the letters and telegram referred to, constituted a contract between the parties, the same was not admissible in evidence, without having a stamp of five cents upon each piece of paper constituting the contract. — 1‡ U. 8. 8tat. at Large, p. Ufé.

      2. The principal question, however, arises upon the merits of the case, as specified in the remaining assignments of error.
    The letters and telegram fail entirely to constitute a subsisting binding contract between the parties. — 1 Pars, on Oont. p. JflB.

    A mere proposition is not enough. Nor is this any more a contract if it be in writing, than if spoken only. It becomes a contract only when- the proposition is met by an acceptance which corresponds with it entirely and adequately. — Ibid.
    In his charge the Circuit Judge lays no stress upon the acts of the parties, but finds the entire contract in said three letters and telegram.
    3. Upon the facts stated in the record, whether there was a contract between the parties, was a mixed question of law and fact, and should have been left to the jury to decide under such instructions as to the law, as the court should think proper. In determining this question, the jury should have been allowed to take into consideration all the correspondence between the parties, and all their acts in relation to the subject matter. • And it was error on the part of the Circuit Judge to take this question from the jury, as he did by deciding that said three letters and telegram constituted a contract as matter of law; thus excluding from the jury the consideration of the letters of Rogers, dated April 13th and August 14th, and all the acts of the parties relative to the tug, from which their intentions might have been inferred.

      T. G. Grier, for defendant in error.
    There are substantially two errors alleged in the assignment of errors.
    1. That the Circuit Court erred in allowing the several letters and the telegram relating to the hiring of the tug “Union” to be read in evidence; the counsel of the defendant having objected to the reading of them, “because if the said letters and telegram constituted a contract or charter party it was void, not being stamped with an internal revenue stamp as required by the laws of the United States.”
    To this objection we answer:
    It is not a contract or charter party within the. meaning of the revenue law. The plaintiff, Rogers, received merely a copy of the telegram produced by the manipulations of the operator. It was impossible for him to know whether the original filed with the operator at Lockport had been stamped. A stamp upon the copy received by him would have no effect, as the law has no provision for stamping copies. And the law which required a stamp on telegrams had been' repealed, from which it is evident that it was not intended by Congress that telegrams should be stamped.
    But if the telegram itself was such an acceptance as made a binding contract, the case is in no manner altered, for the telegraph comes within the reason of the rule in regard to parol acceptance, viz., the impracticability of stamping such an acceptance.
    An offer in writing accepted by parol, requires no stamp, and where the contract arises from an offer in writing, and there is a parol acceptance, as by complying with the proposed terms, the entire contract is not in writing and cannot be stamped. — 8 Pars, on Gont. 295; Croclcer v. Foley, 18 Allen, 876; Chaplin v. Ciarle, 4 Exch. 408; Moore v. Gorwood, 4 Id- 481-

    The statute requiring stamps to be affixed, refers to such contracts as are within themselves “completed by the assent of the parties thereto.” None of these letters constitute a contract or chartering of themselves. They were only propositions or offers.— Croclcer v. Foley, 18 Allen 880; Toby v. Chipinan, Id. 126; McGowan v. Harbeclc, 58 Penn.

    But had these letters constituted a contract or charter party within the meaning of the revenue law* it was not void or inadmissible for want of a stamp. To make such an instrument “invalid” the stamp must be omitted “with intent to evade the provisions” of the act. — Act of 1865, U. 8- Statutes at .large, 481-

    The burden of proof is not on the party offering the instrument to show the innocence of the omission, but to render it inadmissible or invalid, evidence must be introduced to show the fraudulent intent. — See authorities last cited, and Hitchcock v. Sawyer, 89 Vt. 412, 416.

      2. The second objection is, that the judge erred m refusing to charge the jury that the “contract of hiring the tug Union was only a chartering at will, and determinable at the pleasure of either party.”
    The letters between the parties, the telegram and the conduct of Rogers, constitute a positive agreement and an acceptance.
    By instructing Rogers to go on and fit up the tug, Yan Yalkenburg, in substance, .informed him that the terms named were satisfactory; that he accepted them; that he wished no more formal bargain or instrument, and that he did not wish the services of Westover for any such purpose.
    But even had it been intended by the parties, that a more formal instrument should be drawn between them, and had it been an express condition that such an instrument should he drawn, yet, it not having been drawn, we contend that the parties thereby waived it, and the letters and telegram were the evidence of the contract between them.— Pearce v. Norton, 1 Fairfield, (Maine,) 252; 8 U. 8. Circuit (N. J.) 1808 j Blight v. Ashley, 1 Pet. C. Court, 15; 1 Abbott’s Nat. Dig. 589; 1 Parsons Maritime Law, 281, 282.

    And this doctrine is carried to the extent, that where an agreement is made by parol, with an express understanding that it shall be reduced to writing, a party cannot escape its obligations by. refusing to execute the written agreement, or proceed further with it. See cases last cited.
    The court will never say that a party shall not recover upon a contract, merely because the parties at the time it was written, contemplated making another agreement of the same purport. The making of the latter in such case, would be a work of supererogation wholly immaterial and superfluous as to either of them. — Rowland v. Phalon, 1 Bosworth, (N. Y.) 60; Adams v. U. 8. 1 Nott. & EL 192; Schooner Tribime, 3 8umn. SJ^L

    The subsequent letters are of no importance whatever; they were written long after the contract was made, and after all its terms became binding. The letters could make no law, nor could they alter the meaning of the original contract, unless they, by their terms, authorized the defendant Van Valkenburg to take possession of the tug.
    It is not claimed that they contained any such authority; but it is claimed that they go to show that there was no contract of hiring for the season. .Had the contract been verbal, the letters might have been construed as an admission that it was a hiring at will; but as the terms of the contract were entirely in writing, what the contract really was, is no longer a question of fact, but purely a question of law, and it is entirely immaterial what either of the parties may afterwards have come to believe as to the legal effect of their agreement. — Hepburn v. Snyder, 8 Barr. 72; 7 TJ. S. Dig. 28 j 2 Cush. 80 j 8 Mich. 66.

      • And a letter written subsequently to the making of a contract by letter, cannot be looked at in construing such contract. — Leiuis v. Nicholson, 12 Enq. Law and Eq. ISO: 8 TJ. 8. Dig. 17.

   Graves J.

Rogers, the intestate, brought trover to recover damages, on the ground of an alleged conversion, by the plaintiffs in error, of what he claimed to be his special property in a steam tug called the Union.

It appears that in the winter and spring of 1866, Rogers was residing at Bay City, in this state, and that Van Valkenburg resided at Lockport in the state of New York. That the Union being at or near Bay City, and the property of Van Valkenburg, Rogers, in February of that year, opened a correspondence with Van Valkenburg, in order to charter the Union for the season, to run in connection with another tug called the Wave. It was thought that the tug belonging to Van Valkenburg would require some fitting up before commencing business, and that the season had already so far advanced as to make considerable diligence necessary to prepare her for service.

This opinion seems to have had much influence in placing Rogers and Van Valkenburg in the position they subsequently occupied.

Finally, in answer to a letter, written by Rogers on the 12th of March, Van Valkenburg telegraphed on the 17th of the same month to Rogers that he could commence fitting up the tug.

Upon the receipt of this telegram, Rogers took possession of the boat, prepared her for business at considerable expense, and then used her until the 3d or 4th of the following September, when the plaintiffs in error took possession and kept it till the close of navigation.

Rogers died after recovering judgment in the court below, and the cause was revived against his administratrix.

Upon the trial, Rogers, to maintain- his action, contended that the correspondence, by letter and telegraph, embodied a contract giving to him the right of possession and use of the tug for the entire season.

This position was contested by the plaintiffs in error, who maintained that neither the letters and telegram relied upon by Rogers, when, standing alone, or taken in connection with the correspondence produced, constituted or proved any such contract. It having appeared that all the negotiations in relation to the transaction were by letter and telegraph, the Circuit Judge instructed the jury that the letters submitted by Rogers, being those of February 26th, March 7th and 12th, and the telegram of March 17th, taken together, constituted the contract between the parties for the hiring of the tug, and that it entitled Rogers to the possession and use of the boat until the close of the season of navigation for 1866.

This charge raises the vital question in the case. As there was no dispute as to the authenticity and due‘reception of the letters and telegram, and as the language employed was capable of being understood without extrinsic aid, it was the duty of the court to tell the jury what that correspondence contained, and what it meant. There was no error, therefore, in assuming to instruct the jury upon the subject. We think, however, that the instruction given was erroneous. It appears to us that while the correspondence showed that the parties had begun to make a bargain, it also showed that no bargain was perfected. The first letter of Rogers, being that of February 26th, contained a distinct proposition for the hire of the tug for the season, but the answer of Van Valkenburg, under date of March 7th, contained an explicit rejection of that proposition, and proposed a different arrangement.

This offer of Van Valkenburg was vague and general, and fell short of an unqualified proposition to charter the boat to Rogers for the whole season, and the latter replied to it under date of March 12th, in the following terms:

“Yours of the 7th inst: is at hand, I think favorably of your plan, and will take tug TJnion, with the understanding that your towing is to be done at any time that you may call for it, but would like to have some definite understanding about what I am to do, or about what I am to give. If you know about what amount of logs you have to tow, please state how much I shall pay you besides doing your towing.

It is high time that fitting and repairing had commenced. If I take her, painting and repairing should commence this week, and I would like to have you telegraph as soon as you get this, because nearly every other boat is ready to come out as soon as the ice clears from the river. I will do just as I agree, and as the season is far advanced and little time left in which to make repairs, and it seems a long time to wait for an answer by mail, I think it would be best to let me hear from you by telegraph. And whatever you want done in' relation to a bargain, perhaps you could have it done through Mr. Westover, after informing him what you want.”

It was in reply to this that the short telegram was transmitted, and which was evidently meant to inform Rogers that he could commence the work of repairing at once, and leave the consummation of the bargain to a more convenient occasion.

In this the telegram was responsive to the sense of the letter of Rogers which called it out. From that letter it is quite obvious that Rogers was anxious to secure the use of tbe vessel upon some terms falling within the general proposition, as he understood it, submitted by Yan Yalkenburg, and was desirous that she should be ready for business in the opening of navigation; that he was quite confident that if permitted to put the boat in condition for service, he would have no difficulty in completing an arrangement with Yan Yalkenburg, agreeably to the outlines stated in Yan Yalkenburg’s letter of March 7th. But the closing paragraph of the letter, written by Rogers on March 13th, excludes the idea that' such letter, or the telegram, in answer to it, was meant to close and perfect a bargain.

The parties were disposed to trust each other, and their correspondence shows that they meant that Rogers should commence fitting up the boat without delay, in order to have her ready for service, and that the bargain which they had corresponded about could be completed afterwards. It does not appear, however, that the bargain was ever accomplished.

The subsequent correspondence submitted in evidence by the plaintiffs in error, tends strongly to confirm the opinion already expressed, and there is no occasion, therefore, for reviewing it, or for inquiring whether it was right to disconnect it from the rest, when seeking to ascertain whether the correspondence constituted a contract or not.

As the letters and telegram did not establish a contract, the objection that no revenue stamp was affixed, of course, disappears.

According to the view of the case which has been presented, it is unnecessary to consider the other points discussed at the bar.

The judgment below should be reversed, with costs, and a new trial ordered.

The other Justices concurred.


text:
    Ann White, Adm’x, v. Richard L. Allen.

      Appeal from allowance by Commissioners: Declaration: Judgment. Where, on the trial in the Circuit Court of an appeal from, the allowance of commis sioners on claims against an estate, no new issue was formed, and no, declaration filed, the report of the commissioners setting forth the nature of the claims, will he considered as the declaration in the case; and any judgment heyond the claims presented to the commissioners is erroneous.

      Heard and Decided April 14th

    Error to Washtenaw Circuit.
    This was an appeal from the allowance of commissioners on claims upon the estate of decedent.
    In the Circuit Court no declaration was filed, or new issue formed.
    The claim, as presented to the commissioners, as shown, by their report, was for the sum of $1,400, or thereabouts, balance due on account, and the judgment in the court below, upon the verdict of the jury, was for $2,800.

      A. Howell, and O. A. Stacy, for plaintiff in error.

      Joslin S Blodgett, for defendant in error.
   The Court held that where, upon such an appeal, no new issue was formed in the Circuit Court, and no declartion filed, the report of the commissioners setting forth the nature of the claim, would stand as the declaration in the case; and any judgment in the Circuit Court beyond the claim presented to the commissioners, was erroneous.

Judgment reversed.


text:
    Alonzo S. Hatch v. Enoch J. White et al.

      Case made: Writ of error: Waiver. After a case was made and filed, the party making it, sued out a writ of error, and brought the cause on to be heard on the exceptions in the case made.

      Held, That lie ha<l waived liis right to a case made. There being no bill of exceptions, the judgment below was affirmed.

      Heard and decided April 6th.

    Case Made from Macomb Circuit.
    It appeared from the record, that after the case was made and filed, the party making it, had sued out a writ of error, and he now brought the case to a hearing on the exceptions appearing in the case made.

      A. G. Baldwin, for plaintiff in error.

      M. B. Crofoot, for defendant in error. ■
   The Court held, that by suing out a writ of error, the party had waived his case made; whereupon, there being no bill of exceptions, the plaintiff in error assented to an affirmance of the judgment.