text:
    BROFFEE v. LE FILS.
    1. Deeds—Delivery—Evidence—Witnesses.
    Evidence offered to show that decedent delivered a deed of real property to defendant, her daughter, and objected to, on the ground that the testimony of defendant was equally within the knowledge of the deceased, whereupon it was struck out, being the only testimony on the subject, held, insufficient to establish such delivery.
    2. Same — Admissions.
    And evidence of a third person that decedent stated she was going to give each of her daughters a house and lot, and said nothing about having executed and delivered a deed, had no tendency to show the delivery.
    3. Same — Intention oe Grantor.
    In the absence of other evidence than the deed itself to prove the intent of the grantor, it must prevail, and the court should have determined, as a matter of law, the intent of the grantor not to pass a present interest where the deed stated that it was not to be delivered or to become operative until the death of the grantor.
    4. Same.
    And such limitation, in the absence of proof of actual delivery, should have been held to require the court to direct a verdict for plaintiff in ejectment.
    Case-made from Kent; Brown, J.
    Submitted January 15, 1914.
    (Docket No. 86.)
    Decided December 18, 1914.
    Ejectment by Irene Lulu Broffee, by next friend, against Anna Le Fils and others. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Frank L. Carpenter, for appellant.

      William F. McKnight, for appellees,
   McAlvay, C. J.

This is a case in ejectment brought in behalf of plaintiff, a minor, by her next friend, against defendants, to recover an undivided one-third interest claimed by her in certain real estate situated in the city of Grand Rapids. The trial resulted in a verdict and judgment in favor of the defendants. Plaintiff has removed the case to this court for review upon a case-made after judgment, and has assigned errors upon exceptions taken during the trial, which assignments of error were duly attached and certified when the case was settled.

The material facts in this case are as follows: Plaintiff’s ancestor, through whom she claims title, who was Bridget Delia Broffee, her grandmother, derived title to the premises in question from one Mary A. Granger, April 3, 1883. She entered into and continued to hold possession thereof from that date until her death, which occurred September 23, 1908. She left surviving her as sole heirs at law four persons, namely, Anna M. Le Fils and Ella B. Kelley, daughters, two of the defendants herein, John Broffee, a son, and plaintiff, a granddaughter, the only surviving heir of her son, James Broffee, deceased. These premises are situated in the city of Grand Rapids on the east side of Plainfield avenue, 170 feet north of the north line of Carrier street. It is an irregular piece of land about the size of an ordinary city lot and upon it, after her purchase, Mrs. Broffee, built two houses. About three years and six months before her death Mrs. Broffee, on March 16, 1905, sent for a notary public to come to her house, who, under her instructions, drew the following instrument, which she duly executed and acknowledged :

“This indenture, made the sixteenth day of March, •in the year of our Lord, one thousand nine hundred and five, between Mrs. Bridget Broffee, of the city of Grand Rapids, county of Kent and State of Michigan, party of the first part, and Anna Maria Le Fils, and Ella Kelley, both of Omaha, Nebraska, and being daughters of the first party hereto, parties of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of (1.00) one dollar and love and affection to her in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, does by these presents, grant, bargain, sell, remise, release, alien, and confirm unto the said parties of the second part, and to their heirs and assigns, forever, all that certain piece or parcel of land, situate and being in the city of Grand Rapids, county of Kent and State of Michigan, and described as follows, to wit [omitting description]. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining: To have and to hold the said premises, as above described, with the appurtenances, unto the said parties of the second part, and to their heirs and assigns forever. And the said Bridget Broffee, party of the first part, her heirs, executors and administrators, does covenant, grant, bargain and agree to and with the said parties of the second part, their heirs and assigns, that at the time of the ensealing and delivery of these presents she is well seised of the above granted premises in fee simple; and that they are free from all incumbrances whatever and that she will, and her heirs, executors and administrators shall warrant and defend the same against all lawful claims whatsoever. It is hereby expressly understood that this deed is not to be delivered or become operative except in case of the death of the party of the first part.
“In witness whereof, the said party of the first part has hereunto set her hand and seal the day and year first above written.
“Bridget Broffee [L. S.]”

The notary left the instrument with Mrs. Broffee at her house, and never saw it afterwards until in court as a witness in this case. The grantees in this instrument at that time resided in Omaha, Neb., were not present at its execution, and paid no consideration. It developed on the trial that defendant Ella Kelley claimed that this instrument had been delivered to her May 28, 1905, by her mother in the presence of her brother John, who had died in December, 1909, three years before the present trial. Defendant Ella Kelley caused this instrument to be recorded in the office of the register of deeds on September 26, 1908, three days after the death of her mother, Bridget Broffee. How and when it came into her possession there is no evidence in the case to show. The record shows that the testimony of defendant Ella Kelley, offered for the purpose of showing a delivery of this instrument to her by her mother, was objected to and stricken out as incompetent under the statute. It also appears that after the death of Bridget Broffee and after defendant Ella Kelley had recorded the instrument in question, she petitioned for the appointment of an administrator of her mother’s estate, describing herself, her sister and brother John as the only heirs, not including the plaintiff, who was at that time living in Milwaukee, Wis. John Broffee was later appointed administrator of his mother’s estate, but did not include the land here in question in his inventory. The estate was closed June 1, 1909, and $560.43 and two parcels of land (not included in this suit) was assigned to Mrs. Le Fils, Mrs. Kelley, and John Broffee, as the only heirs of the deceased mother. John Broffee died intestate December 31, 1909. Afterwards Mrs. Kelley petitioned the probate court for the appointment of an administrator of his estate, describing herself, Mrs. Le Fils, and plaintiff, Irene Broffee, as his only heirs. An administrator was appointed and probate is -still pending. The record shows that the two houses on the land in question in this suit were leased by the two principal defendants, Le Fils, and Kelley, to the other defendants, Everett and Benton, who were occupying the premises when this suit was instituted and were made parties defendant thereto. The errors assigned and relied upon relate to the exclusion and admission of testimony, the refusal to give plaintiff’s requests to chai'ge, and certain portions of the charge as given by the court.

To rebut the prima facie case made by plaintiff defendants introduced in evidence the instrument already set forth, and offered to show that it was delivered by Bridget Broffee to defendant Ella Kelley May 28, 1905. Objection was interposed that the witness was incompetent to testify, and the objection was sustained. The matter was pressed by further questions, as follows:

“Q. Who handed you the deed on that occasion?
“Mr. Carpenter (attorney for plaintiff): I object to that on the same grounds.
“The Court: The objection is sustained.
“Mr. McKnight (attorney for defendants): I offer to show that on the 28th day of May, 1905, this deed, Exhibit 2, was delivered by the mother, Bridget Broffee, to this defendant.
“Mr. Carpenter: I object to it.
“The Court: The objection is sustained.
“Q. Was there any one else present at that time besides your brother John and mother?
“A. No, sir. My brother John is dead. No other person is now living having knowledge of that delivery. No one else was present.”

This is all the testimony which was offered or could be offered on the part of defendants to show the delivery of this deed, except that of the witness Thiebault, which we next consider. As the record stands, therefore, no delivery of this instrument was shown to have been made by Bridget Broffee to defendants during her lifetime.

On the part of defendants testimony of a witness named Thiebault was offered and received over objection and exception by plaintiff relative to conversations had with Mrs. Broffee, as counsel for defendants stated, “to show she had delivered these deeds to the girls, from her own statement.” An examination of this testimony shows, in the witness’ words, “she did not say a word about the deed.” The substance of the testimony is that deceased told witness “she was going to give them a house and lot apiece.” Counsel for plaintiff moved the court “that all the testimony of this witness be stricken out as having no tendency to show a delivery of this deed and being irrelevant and incompetent.” The court denied the motion, and an exception was taken upon which error is assigned. This testimony had no tendency to show a delivery of this deed. The court was in error in denying the motion to strike it out. It was recognized by the court, and so stated in his charge to the jury, that:

“If Bridget Broffee had not made this instrument and had died intestate, that is, without making a will, the plaintiff in this case would have had an interest in the property in controversy here as the heir of her father, James Broffee.”

The court submitted to the jury to find as a question of fact the grantor’s intent in the execution of this instrument as to passing a present interest to these two defendants, her daughters, and also to find whether Bridget Broffee delivered this instrument during her lifetime, as claimed by defendants, as follows:

“Now the question arises as to what was the intent of Bridget Broffee in the execution of this instrument executed in the form of a warranty deed but containing the clause I have read to you. The question for you to determine is what, under the circumstances of this case, which you believe to be true, was the intent of the grantor, Mrs. Broffee, as to the passing of any present interest in this property to the grantees named in this deed, the defendants in this case, Mrs.' Kelley and Mrs. Le Fils?”

And further:

“If there Was a delivery, as the defendants contend, accompanied by the intent to invest in the grantees, that is, Mrs. Kelley and Mrs. Le Fils, a present interest in the property absolutely, then your verdict will be for the defendants, and that is the question here. You are to take all the facts and circumstances in the case as are shown by the evidence, the relations of the parties, the contents of the deed, and determine as to what was the intention of Mrs. Broffee as to passing the present interests, or title, to the grantees by the execution of this instrument in question.”

And further:

“If she did deliver the deed before her death with the intent of passing title at the time that the document was delivered, an absolute title then and at that time, with the right of possession at that time, then it would convey an absolute title in this property to these two defendants.”

Upon these portions of the charge errors are assigned by appellant. Relative to the submission of the question of the delivery of the instrument to defendants, it is contended on the part of appellant that there is no evidence in the case tending to show such delivery. Having already determined that there was no evidence in the case tending to show that this instrument was delivered to these defendants during the lifetime of Bridget Broffee, it follows we must hold that the exception of counsel for appellant to these portions of this charge which submit this question of fact to the jury was well taken. The court was in error in so charging the jury.

On the second proposition the contention of appellant is that the instrument in question is not ambiguous in its terms, that the intent of the grantor is to be found only within the terms of the .instrument itself, and that its construction was a question of law for the court. From our examination of the record we find that there was no evidence properly in the case except the instrument itself from which to find the intent of the grantor, and we agree with the contention of counsel for appellant that the construction of this written instrument was a matter of law. for the court, and not a question of fact for the jury. The question of intent was therefore improperly submitted to the jury.

There remains to be considered only the construction of the clause in the instrument itself upon which this dispute arises, which reads as follows:

“It is hereby expressly understood that this deed is not to be delivered, or become operative, except in case of the death of the party of the first' part.”

It would be hard to select fewer words to more aptly express the intention of the grantor. It is a most positive statement that the deed was not to be delivered or become operative except in case of the grantor’s death. This is the express intent of the grantor, concerning which there is left no room for doubt. This instrument, after its execution, was left in the possession of the grantor, and there was no delivery shown to have been made by her to these defendants, directly or indirectly. The case, as we view it, was one in which it would have been proper for the court to have instructed a verdict for plaintiff.

It will not be necessary for this court to consider other questions which are presented.

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

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, C. J. Stone, J.

license: Public Domain

text:
    JOHNSON v. JORDAN.
    1. Witnesses — Quo Warranto — Eiections.
    In quo warranto proceedings to try title to the office of sheriff of Iosco county, the court erred in allowing the attorney for the relator to interrogate his main witnesses, for which of the respective parties they cast their votes at the election.
    2. Evidence — Opinions—Witnesses.
    Testimony hy one of the witnesses of the relator, who claimed that the ballot box had been opened and contents tampered with before the recount, that the witness had stood in a place outside the railing and it was possible to see from that position how the ballots were marked, was open to rebuttal by evidence of one of respondent’s witnesses that during a previous election he had stood in such place and was unable to observe the marks on the ballots.
    Error to Iosco; Connine, J.
    Submitted January 27, 1914.
    (Docket No. 162.)
    Decided December 18, 1914.
    Quo warranto by Collie Johnson against John Jordan to test the title of respondent to the office of sheriff of Iosco county. Judgment for relator. Respondent brings error.
    Reversed.

      John E. Kinnane (Arthur Sauve, of counsel), for appellant.

      Charles A. Jahraus (Hall, De Foe & Hall, of counsel), for appellee.
   McAlvay, C. J.

This is a quo warranto proceeding to try the title to the office of sheriff of Iosco county. The case was first tried in said county, and resulted in a disagreement of the jury. Later a change of venue was granted to the county of Alcona, where a trial was had which resulted in a verdict in favor of relator. Respondent made a motion for a new trial, which was denied by the court, and a judgment of ouster in favor of relator and against respondent was duly entered June 4, 1913, following which relator entered into possession of the office of sheriff, assumed its duties, and still exercises the same. The material facts, briefly stated, out of which this controversy arose, are as follows:

These parties, relator and respondent, were candidates for the office of sheriff at the general election held November 5, 1912, in Iosco county. The result of this election upon the returns made and filed by the inspectors of election showed that relator was elected sheriff by a majority of two votes. November 12, 1912, respondent filed his petition for a recount by the board of county canvassers of certain precincts. Later, on November 13, and November 16, 1912, relator also filed two petitions for a recount of certain precincts. The board of county canvassers proceeded to, and did, recount nine voting precincts, as demanded by the petitions of these parties. The result of this recount changed the result as shown by the returns filed by the inspectors of the election, in showing the election of respondent, John Jordan, to said office of sheriff by a majority of nine votes. A certificate of election was duly issued and given to him. He entered upon the duties of the office at the beginning of the term thereof, January 1, 1913, and so continued to hold such office as sheriff of said county and discharge its duties until he was ousted therefrom by the judgment of the circuit court, as above stated.

In the quo warranto proceedings respondent’s plea to the information and the replication of relator to such plea raised several issues, upon all of which the first trial was had. The second trial began May 22, 1913. Shortly before that date, on May 6, 1913, the parties to this cause, by their respective attorneys, entered into a certain written stipulation relative to the issue to be tried therein, as follows (omitting the formal parts):

“It is hereby stipulated by and between the parties in the above-entitled cause, by their respective attorneys, that all issues raised by the pleadings, in said cause, except the issue relating to Sherman township, Iosco county, be and the same are hereby waived; and it is agreed that the issue raised by the pleadings in this cause as to Sherman township be the only issue to be tried, and that the decision of said issue in Sherman township shall determine the contest between the parties hereto for the office of sheriff, said issue to be submitted to the jury in the same form as the questions submitted to the jury on the former trial.”

This stipulation narrows and restricts the issue to be considered, and excludes from consideration everything except the one question to be submitted to the jury. The matter alleged in the information bearing upon this single issue is all contained within the third paragraph, which, after setting forth the whole number of ballots cast in the township of Sherman at said election for the office of sheriff and the number of ballots cast for each of these parties, as found by the board of election inspectors for said township, gives a like statement relative to the result of the recount of such township for that office, and, claiming that the canvass by the election inspectors for the township was correct, charges that between the time of the original canvass and the recount “said ballot box was wrongfully and illegally opened and tampered with, and certain of said ballots altered, and certain others withdrawn from said box, so as to fraudulently produce the result shown by said recount,” and also—

“That the seal upon said ballot box gave evidence of having been tampered with, and four of the ballots so cast in favor of plaintiff and one in favor of respondent had been marked in different places thereon with squares, crosses, and otherwise, so as to clearly present distinguishing marks, but that none of said markings were upon said ballots at the time of said original canvass and all of which were counted by said board of county canvassers upon the supposition, as plaintiff is informed and believes, that said ballots did not contain such markings when voted and originally counted.”

The record shows a large amount of testimony was introduced upon the trial by both parties. It will be of no benefit to abstract this testimony, and reference to it will be made only as may become necessary.

The case is brought here for review upon writ of error by respondent, upon errors assigned to the rulings of the court in the admission and exclusion of evidence, upon certain portions of the charge of the court as given, upon refusal to give certain requests of respondent, and upon denying a motion made by respondent for a new trial. Such of the assignments of error relied upon by appellant will be considered as may be necessary.

During the trial of the case each of four of the leading witnesses for relator was asked to testify for which of the two parties to this suit he voted at the election in question. Counsel for respondent objected to such testimony as incompetent, immaterial, and irrelevant. The objection was overruled, an exception taken, and each witness testified that he had voted for respondent. In each instance, after the witness had so testified, counsel for respondent moved that the answer be stricken out, for the reasons first given, which motions were denied, and exceptions taken. The first time the question arose and an objection was made to this class of testimony, the court stated to the witness:

“You are not obliged to say whom you voted for for sheriff. If you choose to do so, you may.”

The repetition of like questions to other witnesses by plaintiff’s counsel would indicate that this line of examination was intentional, and it is asserted on the part of relator that the testimony was offered to show the relation of the witnesses to the parties and to the litigation. The witnesses were not related to the parties in the sense in which that term is used, nor were they related to the litigation, other than material witnesses in any case. Examination was permitted relative to matters concerning which, as a general proposition, no witness should be interrogated. These questions were in no way relevant or material to the proof of any fact presented or involved in the issue being .tried. We cannot but conclude that this testimony was prejudicial, and that the court erred in allowing such questions to be answered, and in not striking the answers from the record after they had been given.

The contention of relator, as charged in the information in this case, as appears from the quotation therefrom.in this opinion, was that the first count of the ballots was correct, and that the ballot box had been illegally opened after that count and before the recount, and ballots altered and withdrawn for fraudulent purposes. In support of this contention testimony of witnesses who were present watching the count on election night was introduced, showing in what position and manner the count was observed by them. The election board, and others to the number of seven, were seated at a table upon a platform in the town hall, which was separated from the main floor by a railing. It appears that the hall was full of men, making considerable noise, .and that it was poorly lighted by an oil lamp. One witness testified at length with particularity as to this count observed by him, standing part of the time on the floor and part of the time upon a chair outside this railing several feet from the table, and that he could, in such position, see how these ballots were marked.

To rebut this testimony respondent offered the testimony of a tally clerk, who testified that at former elections at the same place he had undertaken to see the ballots counted by the board on that table when he was outside the railing. He was asked:

“Q. Whether or not you could, standing on the floor outside of the railing, whether it is possible to see how the ballots are marked that are lying on the table ? (Objection.)
“A. It is impossible to see it.”

Upon the objection of counsel for relator that this called for a conclusion, it was stricken out, and an exception taken. Thereupon counsel for respondent further examined the witness to qualify him to testify whether, under like conditions as at this election, standing on the floor or on a chair outside of the railing, he had observed whether the markings on ballots during the count could be seen. Upon the same objection the testimony was excluded. The same testimony was offered by another witness and excluded upon the same ground. This question was also raised upon the motion for a new trial, and denied on the ground that it was opinion evidence. The court must have overlooked the fact that the two witnesses whose testimony was offered for this purpose had testified that they were present at the election in question, knew the situation of the table at which the board of canvassers sat, the railing outside the platform, and had been present at the same place at other times when elections were held, and'had attempted to view the ballots being counted and to see the marks upon them from without the railing, standing upon the floor and on a chair. They had qualified themselves to testify. They were familiar with the surroundings. The testimony offered was competent, and was erroneously excluded. Such questions call for facts, and not for mere opinions, and the answers thereto should have been received. Laughlin v. Railway Co., 62 Mich. 220-226 (28 N. W. 873), and cases cited; Rietveld v. Railroad Co., 129 Iowa, 249 (105 N. W. 515).

The supreme court of Iowa in a more recent case said:

“It is one of the commonest occurrences, upon the trial of cases where witnesses have testified to observations made or objects seen from a given point, for the opposing party to call witnesses who claimed to have made the test from the same point and have them testify that the things alleged to have been seen therefrom are not, in fact, visible.” Gray v. Railroad Co., 143 Iowa, 268 (121 N. W. 1097), and cases cited.

The court was in error in excluding this testimony.

The sole contention presented upon the trial of this case on the part of relator was that between the time of the count by the township board of canvassers of the ballots cast at this election in Sherman township, on November 5, 1912, and the recount, which began November 15th following, by the county canvassers, the ballot box had been unlawfully opened, and some of the ballots marked with distinguishing marks, and the result of the election thereby changed. Upon this contention the relator based his attack upon respondent’s right to this office. Respondent relied solely upon the recount for his title to the office, and his attitude was entirely one of defense. He was charged with having obtained his office as a result of this fraud. His defense was and is that no such fraud has been established.

Both of the parties to this suit invoked the provisions of our statute providing for a recount of the ballots. Under section 3672, 1 Comp. Laws, it is provided, as follows:

“The returns made by the said board of canvassers upon recount shall be deemed to be correct, anything in the previous return from such township, ward or district, to the contrary notwithstanding.”

These quo warranto proceedings are brought under section 3673, 1 Comp. Laws, which provides that:

“For * * * tampering with the ballot boxes before a recount by the board of canvassers, the remedy by quo warranto shall remain in full force together with any other remedies now existing.”

The record shows that after the recount by the board of county canvassers when the ballot box containing the ballots was relocked and resealed by such board up to the time of the first trial of this case, this ballot box and its key were in the sole custody of the township clerk of Sherman township at his house. At that trial it was produced by him and opened, and the ballots were introduced in evidence by the relator.

The record also shows that after, the township canvass the ballots were put back into this box by the board of canvassers, the box was duly locked and sealed, the key was delivered to this township clerk, and the seal to the proper officer. The box was then delivered by the board to the custodian of the town hall, and placed by him and the board in the property room in said building, in which it was securely locked with a spring lock by such custodian, who also securely locked the outer door of said hall,..which was also provided with a spring lock. The custodian alone had keys to the property room and of the town hall. He went with the township clerk, unlocked the building and the property room, and delivered this ballot box to him to take to the county canvassing board for the recount. From which time, as already stated, this ballot box was in the custody of said township clerk until the time of the first trial of this case, except the short time it was in the possession of the county canvassing board. The relevancy of the facts above stated will appear when taken in connection with the discussion of some of the errors assigned now to be considered.

Respondent has assigned errors upon certain portions of the charge of the court wherein the jury is instructed relative to the count and recount, and relative to the ballots, and what the jury could consider in determining the question as to whether they had been tampered with, claiming that in such portions of his charge the court erroneously instructed the, jury. We will consider these errors so assigned in their order, as follows:

“So a recount was had in this case of the ballots of the township of Sherman, and I will say to you at this point that that recount is not binding on us here in this court. We are engaged here in an original investigation of the number of votes that were cast relatively for these two men in the township of Sherman, and the result of the recount made by the board of canvassers is not binding upon us at all. We go back to the ballots themselves, and make our own investigation, and make our own deductions, and make up our own verdict.”

It appears that the court in this charge gave the jury to understand distinctly that the recount by the board of county canvassers was not to be considered of any force or effect. This is more apparent when the following sentence, given later in the charge, is considered:

“Were the ballots tampered with so as to change the result? * * * If you say, ‘No/ then we will take the ballots and use them in determining how many votes each man got.”

The jury was specifically charged that, if no fraudulent tampering with these ballots was shown, the recount could not be considered at all. The statute providing for a recount,, already quoted, clearly indicates that in case of failure to show a tampering with the ballot boxes before a recount “the returns made by the said board of canvassers upon recount shall be deemed to be correct, anything in the previous return from such township, ward or district, to the contrary notwithstanding.” While this portion of the charge would have been proper if it stated that the jury, if the facts warranted, notwithstanding the recount, had a right to find a ballot had been unlawfully tampered with before the recount, yet the sweeping statement it contained that the recount was of no force or effect, and not to be considered, overlooked the status given to the recount by the statute, and was erroneous.

The court further charged the jury:

“Are these ballots different now from what they were election night? Has some one changed them or tampered with them, or marked them in any way different from what they were marked that night, so as to change one or more votes for the office of sheriff? That is the question for you to decide in this case, and in deciding that question you have the right to consider the count that was made on election night and the degree of care that the inspectors used in counting the votes and in keeping the tally, and you have the right to consider the condition of the ballots now.”

The portion of this paragraph that the jury could, in determining whether the ballot box had been tampered with, “consider the count that was made on election night and the degree of care that the inspectors used in counting the votes and in keeping the tally,” is claimed by respondent to have been misleading and erroneous, for the reason that the return of the township inspectors had been superseded and set aside by the finding and return of the board of county canvassers made upon the recount.

The only complaint made by relator in his information to be considered in this case was that the ballot box, after the count made by the inspectors and before the recount, had been opened, and ballots had been marked and changed. Members of the board of township inspectors of election were called as witnesses, and testified in this case relative to the canvass of the votes by this board after the polls were closed, and also as to marks on the ballots at that time. Other witnesses also testified to the same matters. These witnesses did not agree upon the facts. The jury was charged that they could consider the degree of care that the inspectors of election used on election night in counting the votes and keeping the tally. This was calling special attention of the jury to the acts of an official body, the conduct of which was not in issue in the case, and whose return had been superseded by the recount. It was also giving undue prominence to the testimony of these witnesses, which was certainly prejudicial to the respondent. The court was in error in so charging the jury.

The court further charged the jury:

“And you have heard the markings on these ballots described as they appeared on election night, and you have seen these ballots to show how they are now marked, and it is a question for you to determine in this case whether these ballots have been altered; whether any one or more of them have been altered since that election night so as to change the vote for sheriff. * * * Mr. Johnson claims, speaking of these marks on these ballots, that certain marks had been placed on those ballots since election night, that are called distinguishing marks, which destroy the validity of the ballot and put it in such a condition that it cannot be counted for any one.”

Error is assigned upon the frequent statements of the court in the last two paragraphs of the charge above quoted that the jury might consider the markings on the ballots as they appeared at the time of the last trial, as follows:

“Are these ballots different now from what they were election night?”

Also:

“And you have the right to consider the condition of the ballots now.”

Also:

“And you have seen these ballots to show how they are now marked.”

These quo warranto proceedings were begun under the statute for the purpose of determining whether this ballot box had been tampered with after the count by the inspectors of election and before the recount. It already appears that by stipulation this was the only issue to be considered in the case. The investigation, therefore, was limited to that brief time between November 6 and November 15, 1912. The record shows without dispute that from the time the recount was completed by the board of county canvassers when this ballot box was relocked and resealed by such board, the box and the key were delivered to James H. Whitney, township clerk of Sherman-township, and were kept by him continuously at his house for a period of about three months until the first trial of this case, when he delivered them to the clerk of the court. The record also shows from the cross-examination of this township clerk that during this time the ballot box and key were in his possession at his house there was ample opportunity to tamper with the same, and it appears from respondent’s brief, which we do not find contradicted, that such claim was made upon the trial and argument in this case. These several statements of the court in his charge, above quoted, calling the attention of the jury to the ballots as they appeared at the time of the second trial, and saying to the jury, “You have the right to consider the condition of the ballots now,” was erroneous. The court should have instructed the jury that only such changes in the ballots could be considered by them as were shown to have been made before the recount.

There remains to be considered only the error assigned by respondent upon the refusal of the court to grant a new trial. Many of the questions already passed upon in this opinion upon errors assigned during the trial were raised upon such motion. From what we have already said, it follows that the court was in error in denying the motion for a new trial.

For the reasons stated, the judgment of the circuit court is reversed, and a new trial is granted.

Moore, J., concurred with McAlvay, C. J.

Stone, J.

We concur in the result because of errors in the admission of evidence as stated in the opinion.

Brooke, Kuhn, Ostrander, Bird, and Steere, JJ., concurred with Stone, J.


author: McAlvay, C. J.

text:
    MODEN v. SUPERINTENDENTS OF THE POOR OF VAN BUREN COUNTY.
    1. Appeal and Ebrob — Saving Questions fob Review — Limitation of Actions — Notice.
    The contention that a claim was barred by the statute of limitations cannot be permitted to prevail, on error, when the point was not made at the trial or brought to the notice of the trial court, though the plea of defendants contained a notice that the claim was barred by the statute, and the defendants moved for a new trial for that reason, where the appellants abandoned any claim in the appellate court that the court improperly denied their motion.
    2. Paupers — Superintendents of Poor — Counties—Poor Law— Contracts.
    The superintendents of the poor of Van Burén county were authorized by law to contract for the care and maintenance of an aged pauper who was a proper county charge and resided in Van Burén county, by agreeing to pay his niece, who lived in Tuscola county, $1.25 per week for his support.
    3. Same — Trial—Requests.
    The trial court did not err in denying the requests of defendants for an instructed verdict on the ground that the contract was ultra vires, and under the findings of the jury in answer to special questions that the county contributed to the support of the pauper for a year or upwards before the contract was made; that the pauper lived in Van Burén county at such time and had liyed there 2% years or more after he sold his property in another county; that he had maintained himself for a year after he returned to Van Burén county and was not infirm or incompetent to earn his living when he returned, sustained a judgment for plaintiff on the agreement.
    3. Same — Payment.
    Defendants, who showed that they were entitled to a credit of a small amount on the judgment because of payments made to plaintiff, and that this credit was overlooked by the trial court in his charge, no error having been assigned for that reason, might nevertheless have the mistake corrected on error by an order requiring plaintiff to remit or submit to a new trial.
    Error to Van Buren; Des Voignes, J.
    Submitted June 19, 1914.
    (Docket No. 49.)
    Decided December 18, 1914.
    Assumpsit by Laura J. Moden against the Superintendents of the Poor of Van Buren county for care and support rendered to a pauper under a special contract: Judgment for plaintiff. Defendants bring error.
    Reduced and affirmed on condition.

      Grant Fellows, Attorney General, Earl L. Burhans, Prosecuting Attorney, and Lynn J. Lewis, Assistant Prosecuting Attorney, for appellants.

      Thomas J. Cavanaugh, for appellee.
   McAlvay, C. J.

Plaintiff in this case brought suit against defendant board in an action of assumpsit for services claimed to have been rendered by her for the defendant under a contract entered into between the parties for the care, support, and maintenance of Samuel Cole, who was, at the time, a county charge. A trial had in the case resulted in a verdict and judgment in favor of plaintiff. Defendant upon a writ of error has brought the case to this court for review.

The material facts in the case are that Samuel Cole purchased a farm in Van Buren county and became a resident therein as early as 1855. In 1867 he sold this farm, and later, in 1875, purchased a farm in another township, in said county, where he resided until he sold it in 1883 and then removed to Oceana county, where he bought a farm and resided about seven years. He then returned to Van Buren county, where he remained continuously, making his home with his relatives until the time plaintiff, who was his niece, visited him later in the year 1904 and found him sick and without a home, living with her brother. At and before the time the contract out of which this dispute arose was made Samuel Cole was and had been a public charge upon Van Buren county for about one year. He was old, infirm, sick, feeble in mind and body, and entirely unable to wait upon himself or earn a livelihood at the time plaintiff took charge of him. She resided in Tuscola county, Mich., and during this visit to her brother in Van Buren county, in November, 1904, she later saw Charles Barber, then one of the superintendents of the poor of said county, relative to taking Mr. Cole to her home and caring for him. She" did take him a few days afterwards, with the understanding that the matter would be considered by the board at its next meeting to be held December 27th, when a definite arrangement would be made. The term of Mr. Barber expired January 1st following. The result of her interview with Mr. Barber and of a letter written later by plaintiff was that the defendant board, through its secretary, sent her the following letter:

“Paw Paw, Mich., Jan. 26,1905
“Mrs. L. J. Moden,
“Gatestown, Michigan.
“Dear Madam:
“Your letter received and noted. In reply will say that if you are willing to take care of the old man for $1.25 per week we will remit to you once in every three months, commencing at first of last January. If this is all satisfactory let us hear from you at once and oblige.
“M. D. Buskirk, Secretary.”

Under that offer plaintiff kept Mr. Cole until his death on April 5, 1912, at the age of over 98 years. This suit was brought November 29,1911, for services rendered to that date.

On January 31, 1905, the secretary of defendant board again wrote to plaintiff, as follows:

“Yours of recent date at hand. In reply will say that I cannot go back of the quarter ending December 31, 1904, but in the event of death I will stand $15.00 funeral expenses but no more.
“Hoping this will be satisfactory, I am, respectfully,
“M. D. Buskirk.”

Under this agreement payments were made by defendant board according to its terms upon the presentation of bills to the county made out upon blanks furnished by the board, to the amount of $28.25. These facts, as to the agreement made with plaintiff and payments thereon at the rate claimed, are not disputed. The dispute arose upon the claim of defendant board that at the time this agreement was made Samuel Cole was not a resident of Van Burén county, and therefore the county was not responsible for him. Later, after suit was brought, defendant, under the general issue, gave notice of two defenses, viz., ultra vires, and the statute of limitations.

The errors assigned and relied upon by appellant board are grouped as follows:

“First. That the court erred in holding that the contract was not barred by the statute of limitations.
“Second. That the contract was in direct contravention of section 4536, 2 Comp. Laws, and as such was ultra vires and void.
“Third. Errors committed by the court in charging and refusing to charge.”

Relative to the question of whether Samuel Cole was a resident of Van Burén county within the definition of the terms of the statute that he had obtained a “settlement” there which would warrant his becoming a county charge but little consideration is given in defendant’s brief, although upon the trial it appears to have been the principal disputed fact. Upon the trial special questions to the jury were allowed and submitted by both parties. These questions were answered, as follows:

“By plaintiff:
“(1) Did Van Burén county contribute towards the support of Samuel Cole for one year and upwards before the superintendents made the agreement with plaintiff to take him and care for him? Answer: Yes.
■ “(2) Was Samuel Cole living in Van Burén county at the time of the agreement? Answer: Yes.
“(3) Had Samuel Cole lived in Van Burén county for at least 2½ years after he sold his property in the north? Answer: Yes.
“Submitted by defendants:
“(1) Did Samuel Cole maintain himself for one year after his entry into Oceana county in 1883? Answer: Yes.
“(2) On Samuel Cole’s leaving Oceana county and returning into Van Buren county did he maintain himself for one year after he re-entered Van Buren county? Answer: Yes.
“(3) Was Samuel Cole old, sick, infirm, crippled', or otherwise incompetent to earn a livelihood at the time he entered Van Buren county on his return from Oceana county? Answer: No.
“Signed by all the jurors.”

These special findings of fact by the jury are all against the contention of defendant board and dispose of the claim that under the law Samuel Cole was not entitled to public support as a county charge in Van Buren county.

First. The first contention in appellant’s brief is that the court erred in holding that the contract was not barred by the statute of limitations. The record does not show that during the trial mention was at any time made on the part of the appellant that it relied upon the statute of limitations. No objection to the admission of testimony was made upon that ground. It was not included in the motion made at the close of plaintiff’s case for a directed verdict, neither was it mentioned on a like motion made at the close of the case. It is not referred to in the requests to charge and does not appear in the record other than in the plea, until a motion was made for a new trial, where it appears as a reason for granting the same. In our opinion defendant waived its right to rely upon its plea of the statute of limitations. It does not appear from the record that the court had any knowledge that there was such a notice given with the plea., To hold that a trial court may be charged with having committed error upon a proposition that was not with, in his knowledge and not brought to his attention until after a verdict and judgment entered in a case tried. before Mm would be most unfair and unjust, particularly when, as in the instant case, the appellant has abandoned in its brief all reliance upon error assigned for denying the motion for a new trial. For the rea-, sons stated, our conclusion is that no error was com-, mitted in that regard.

Second. The next contention is that the contract' was ultra, vires and void because in contravention of. section 4536, 2 Comp. Laws. This section nrovides:!

“No person shall be removed as a pauper from any city or township to any other city or township of the same or any other county, nor from any county to any other county, but every poor person shall be supported in the township, city or county where he may be, as follows:
“First. If he has gained a settlement in any township or city in such county, he shall be maintained by such township or city;
“Second. If he has not gained a settlement in the county in which he shall become poor, sick or infirm he shall be supported by the superintendents of the poor at the expense of the county;
“Third. If such person be in a county where the distinction between township and county poor is abolished, he shall in like manner be supported at the expense of the county,” etc.

In the instant case it is, not disputed that Samuel Cole, if a public charge, was a proper person to be cared for by the county of Van Buren. The section invoked and relied upon by defendant is a subdivision of the Michigan law which provides for “the support of poor persons by the public,” and this subdivision is entitled, “Of the support of the poor of townships.” It has always been the policy of this State to support and care for the unfortunate poor at public expense. The statutes making such provision divide such public charges into two classes, those to be maintained at the charge of a county, and those to be maintained at the charge of a township or city. Provision is also made that all such persons may, by action of the proper officers, be made county charges. It is apparent from a careful reading of section 4536, supra, and other sections of the chapter providing for support of poor persons by the public, that the legislative intent was to require the expense of the support of a public charge to be borne by the township, city, or county where such poor person had obtained a “settlement” which would entitle him or her to such support and to prevent the shifting of that burden by a transfer of the poor persons from one township or county to another. But it is clear that the legislative intent was concerned in determining by which municipality expenses should be borne, rather than where the individual should be placed. In the instant case, under the facts as found by the jury, the provision of the statute is mandatory that Samuel Cole should be cared for, supported, and maintained at the charge of Van Buren county. It is undoubtedly the general intendment of this law which makes provision for these unfortunate people that they should usually be provided for as county charges in the county poorhouses. We find, however, no provision in this law as far as the county poor are concerned that a board of superintendents of poor, if in the exercise of its judgment it should be considered for the best interests of an individual under its charge to be cared for outside of a county poorhouse, within or without the limits of the county, is prohibited from so doing. For example, in the instant case Samuel Cole, of the age of 92 years, who from the evidence appears to have been infirm, sick, disabled, and enfeebled in body and mind and almost gone, so as to be unable to maintain himself, and also unable to attend to his physical needs, is put in the care and custody of plaintiff, who was his niece, by the defendant board to be kept and cared for by her in her home in Tuscola county for the small sum of $1.25 per- week. Can it be said that such action on the part of this board was ultra vires and in contravention of this statute ? During these years from January 1,1905, to November 29, 1911, she has been discharging a duty which the superintendents of the poor of Van Burén county were bound to discharge, and which in our opinion they could agree with her to discharge beyond the limits of Van Burén county. Our conclusion is this contract was not ultra vires.

Third. The errors claimed under this subdivision of appellant’s brief relate to the charge of the court as given and in refusing to charge as requested. But three requests to charge were submitted on the part of appellants. The first of these requests was for an instructed verdict in favor of defendant. The second, that it was not incumbent upon defendant board to seek to impose a liability upon Oceana county under the facts; that plaintiff could have instituted such proceeding. The third was a repetition of the claim that the contract was ultra vires and therefore void. These requests under the law and the evidence shown in the record were properly refused. We have examined the portions of the charge of the court which are claimed to have been erroneous, and find that they are brief excerpts taken from this charge. A careful reading of the entire charge discloses that the court committed no error except in what we consider an oversight in that portion which treats of damages, which will be stated later in this opinion.

Errors assigned and relied upon relative to the refusal of the court to grant a new trial are not discussed, although barely referred to, in defendant’s brief. We find no error in the denial of a new trial.

In appellant’s supplemental brief the attention of this court is called for the first time to the fact that in the charge of the court to the jury relative to the amount of damages no credit was given defendant board for $28.25, the amount of the payments made by it to plaintiff under this contract. During the trial there was no dispute by either party but that this amount had been paid by defendant, and twice in the charge of the court it is so stated and recognized. It is true that later in the charge the jury was instructed relative to the assessment of damages, as follows:

“And if you reach that question the plaintiff in this case would be entitled to recover at the rate of $1.25 per week from January 1, 1905, to November 29, 1911, together with interest,” etc.

There is no doubt but that this was a clear oversight. The court should have added the words, “less the payments, made by defendant to plaintiff, of $28.25.” This matter was.not noticed by counsel for defendant, or called to the attention of the court. No error was assigned upon it. It is therefore clear that it was not discovered until after argument of the case in this court. However, this as a matter of justice should be corrected.

This is easily done by computing the interest on this amount of $28.25 at 5 per cent, from the 1st of January, 1906, to June 10, 1913, the date of the verdict and judgment, and deducting the amount and interest, being $38.88, from the amount of the verdict, which leaves the sum of $497.18, upon remitting which amount the judgment of the circuit court' will be affirmed, with costs. Otherwise reversed, and a new trial ordered.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Kuhn, J.

text:
    PEOPLE v. BLAIR.
    Railroads—Receivers—Criminal Law—Obstruction oe Crossings.
    Containing no express language applicable to the receivers of a railroad corporation, section 6301, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6656), prohibiting railroad corporations or. companies owning or operating railroads from obstructing any public street or highway more than five minutes, does not warrant the prosecution of receivers of the Pere Marquette Railroad Company for the penalty thereby imposed.
    Error to Van Burén; Des Voignes, J.
    Submitted June 19, 1914.
    (Docket No. 40.)
    Decided December 18, 1914.
    Action by the people of the State of Michigan against Frank W. Blair and others as receivers of the Pere Marquette Railroad Company for a statutory penalty. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Grant Fellows, Attorney General, Earl L. Burhans, Prosecuting Attorney, and Lynn J. Lewis, Assistant Prosecuting Attorney, for the people.

      Glenn E. Warner (John C. Bills, of counsel), for appellees.
   Kuhn, J.

This suit is brought to recover from the defendants as receivers, appointed by a Federal court, of the Pere Marquette Railroad Company the sum of $25 as a penalty for the violation of section 6301, 2 Comp. Laws (3 How. Stat. [2d Ed.] §6656), which reads in part as follows:

“And any railroad corporation, or company owning or operating a railroad in this State that shall permit its engines, cars, or trains to obstruct any public street or highway, for a longer period than five minutes at any one time, shall be liable to a penalty for each offense of twenty-five dollars.”

It is undisputed that oh July 20,1913, the Pere Marquette Railroad Company, while in the hands of .receivers, did obstruct a street in the village of Hartford, Van Burén county, in violation of this section of the statute. A verdict being directed in favor of the defendants by the trial court, the cause is removed here by writ of error. The questions raised by the briefs of counsel are as follows:

(1) A writ of error will not lie from the verdict of a jury without an entry of judgment thereon.

(2) Are receivers operating a railroad under an order of the court liable for a penalty imposed by statute upon railroad corporations when the statute does not by its express provisions include receivers?

On the argument of the cause in this court, a certified copy of the judgment was filed with the court, and the record was amended to show the judgment, by consent of counsel for the appellees, who waived the point.

In directing a verdict in the lower court for the defendants, the learned trial judge relied upon the decision of this court in the case of Robinson v. Harmon, 157 Mich. 272 (117 N. W. 664). It is now urged that in the instant case it is sought to recover a penalty for a violation of a public duty, while in the Robinson Case the penalty inured in favor of a private individual, and recovery was sought by him. In the opinion of this court in the Robinson Case on the rehearing, when the court came to a different conclusion than was arrived at on the first hearing, it was said that in that case ‘The public is not concerned;” but a careful study of both opinions of the court in the case clearly shows that the decision holds that no recovery of a penalty against a. receiver operating a steam railroad will be allowed when the statute does not by its express provisions, include such receivers, and the case of United States v. Harris, 177 U. S. 305, 309 (20 Sup. Ct. 609, 611), is cited in the opinions. In the latter case the action to recover the penalty was brought by the government, and the decision was based squarely upon the proposition that penal statutes must be strictly construed, and the court said:

“It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subjected to a penal enactment,' nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute.
. “It may well be that congress, in omitting to expressly include receivers in these sections, intended to leave them subject to the control and direction of the courts, whose officers they are. It does not, therefore, follow that the statute in question would be without operation, where railroads are in the hands of receivers.”

Mr. Justice McAlvay, in writing the first opinion in the Robinson Case, was of the opinion that the statute in that case was not a penal statute, strictly speaking, but was remedial in its effect, and thus distinguished it from the case of United States v. Harris, supra.

The statute involved in this case being strictly a penal statute, we see no escape from the conclusion that the case comes squarely within the decision in Robinson v. Harmon, supra, and the judgment of the court below must be, and therefore is hereby, affirmed.

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


text:
    PEOPLE v. BLUMRICH.
    1. Constitutional Law — Title—Sufficiency.
    That the title of an act is general, is not ground of objection to it so long as the enactment does not cover legislation that is incongruous, or that cannot be construed to be connected with it, by fair intendment.
    2. Same — Title—Construction.
    In determining whether or not a statute is broader than its title, the court is confined to a consideration and construction of the title as it has been framed by the legislature. The court cannot speculate as to what the legisature might have intended to say, but m’ust rely solely upon what it has said in the title under consideration.
    3. Same — Cigarette Law — Criminal Law — Tobacco — Use by
    Minors — Title of Act.
    Act No. 226, Pub. Acts 1909 (2 How. Stat; [2d Ed.] § 5295 et seq.), prohibiting the manufacture and sale of adulterated cigarettes and prohibiting the sale to minors, under penalty of fine or imprisonment, is unconstitutional and void, in so far as and because the title, “An act to prohibit the manufacture, sale or use of adulterated cigarettes and prohibiting the use of cigarettes by minors,” is insufficient to warrant the insertion of a clause prohibiting the sale of cigarettes to minors.
    Exceptions before sentence from Kent; Perkins, J.
    Submitted June 30, 1914.
    (Docket No. 121.)
    Decided December 18, 1914.
    Richard E. Blumrich was convicted of selling cigarettes to a minor, contrary to statute.
    Reversed, respondent discharged. '

      Earl F. Phelps, Prosecuting Attorney, for the people.

      H. Monroe Dunham and Stuart E. Knappen, for respondent.
   McAlvay, C. J.

This is a case which originated in the police court of Grand Rapids, from which it was appealed to the circuit court of Kent county, where, upon trial, respondent was found guilty. Respondent has removed the case to this court for review upon exceptions before sentence.

Respondent, who was employed in a cigar store in the city of Grand Rapids, was prosecuted for selling cigarettes to James Sproat, a minor of the age of 17 years, in violation of Act No. 226, Pub. Acts 1909, of this State (2 How. Stat. [2d Ed.] §§ 5295-8), prohibiting such sale. The facts are undisputed. It will therefore be unnecessary to relate the circumstances in detail, except that the cigarettes were not purchased by the minor to be used by him, but for the purpose of obtaining evidence for prosecution.

Respondent, in all the courts in which this case has been heard, as well as in this court, challenges the constitutionality of Act No. 226, Pub. Acts 1909, and particularly section 2 thereof, under which this prosecution was brought, for the reason that it contravenes the provisions of section 21 of article 5 of the Constitution of the State of Michigan, which reads as follows:

“No law shall embrace more than one object, which shall be expressed in its title.”

The title of the act under consideration reads:

“An act to prohibit the manufacture, sale or use of adulterated cigarettes, and prohibiting the use of cigarettes by minors.”

Respondent was arrested and prosecuted under section 2 of this act, which reads as follows:

“Any person within this State who sells, gives to, or in any way furnishes any cigarettes in any form to any person under twenty-one years of age shall be punished by a fine not to exceed fifty dollars, or imprisonment in the county jail not to exceed thirty days for each offense.”

While all of the provisions of this act are not in question, yet we think it will be helpful to a better understanding of the question involved in the case if we quote the entire body of the act, which is not of great length, as follows:

“No. 226. .
“An act to prohibit the manufacture, sale or use of adulterated cigarettes, and prohibiting the use of cigarettes by minors.
“The people of the State of Michigan enact:
“Section 1. Any person within the State who manufactures, sells or gives to any one, any cigarette containing any ingredient deleterious to health, foreign to tobacco, shall be punished by a fine of not more than fifty dollars, or imprisonment in a county jail for not more than thirty days.
“Sec. 2. Any person within this State who sells, gives to, or in any way furnishes any cigarettes in any form to any person under twenty-one years of age shall be punished by a fine not to exceed fifty dollars, or imprisonment in the county jail not to exceed thirty days for each offense.
“Sec. 3. Any person under twenty-one years of age who shall smoke or use cigarettes, in any form on any public highway, street, alley, park or other lands used for public purposes, in any public place of business, may be arrested by any officer of the law, who may be cognizant of such offense; and further, it shall be the duty of all such officers, upon complaint of any person and upon warrant properly issued to arrest such offenders and take them to the proper court. In case the offender is found guilty, the court may impose a punishment at its discretion, in the sum of not to exceed ten dollars or imprisonment in the county jail not to exceed five days for each offense: Provided, that if said minor person shall give information which may lead to the arrest of the person or persons violating section two of this act, in giving to or selling, or in any way furnishing _ said minor person tobacco or cigarettes, and shall give evidence as a witness in such proceedings against said party or parties, the court shall have power to suspend sentence against such minor person.
“Sec. 4. Any person who knowingly harbors any person under twenty-one years of age, or grants to them the privilége of gathering upon or frequenting any property or lands held by him, for the purpose of indulging in the use of cigarettes, in any form, shall be held in the same penalty as provided for in section two of this act: Provided, that no part of this act shall be construed as to interfere with the rights of parents or lawful guardians in the rearing and management of their minor heirs or wards within the bounds of their own private premises.
“Approved June 2, 1909.”

Respondent contends that the provisions of section 2 are not within the contemplation of the entitling of this act, and are therefore void. The act, as indicated by its title, quoted .supra, prohibits the manufacture, sale, or use of adulterated cigarettes, and also prohibits the use of cigarettes by minors. The only prohibition of sale expressly indicated by this entitling relates to adulterated cigarettes. From reading the act above quoted it clearly appears that it only undertakes to prohibit the use of cigarettes by minors in public places, and makes it no offense for a minor to use cigarettes in any other place. In connection with this statement the final proviso contained in the act is illuminating. It reads as follows:

“Provided, that no part of this act shall be construed as to interfere with the rights of parents or lawful guardians in the rearing and management of their minor heirs, or wards within the bounds of their own private premises.”

This statute therefore contemplates that a minor may use cigarettes with the consent of his parents or guardians within the bounds of their own private premises. So it is clear that it was not within the legislative intent to provide anything more than a modified prohibition of the use of cigarettes by minors.

If the offense created by section 2, under which respondent was prosecuted and found guilty,- can be found to be within the fair intendment of the entitling of this act, it must be under the last clause “prohibiting the use of cigarettes by minors.” Doubtless this was intended by the legislature to be in the nature of a prohibitive act, and for that purpose was clearly within the legislative authority. Fairly stated, it was the legislative intent to prohibit absolutely the manufacture, sale, or use of adulterated cigarettes, and to prohibit, to a certain extent, the use of all cigarettes by minors. Whether the provisions of section 2 absolutely prohibiting the sale of all cigarettes to minors can be sustained under this entitling will depend upon whether it can be considered by fair intendment as having a necessary or proper connection with the clause in the title of the act prohibiting the use of cigarettes by minors.

The highest authority states this proposition as follows:

“The generality of a title is therefore no objection to it, so long as it is not mad.e a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.” Cooley’s Constitutional Limitations (7th Ed.), p. 206, and cases cited.

In determining whether or not a statute is broader than its title, the court is confined to a consideration and construction of the title as it has been framed by the legislature. The court cannot speculate as to what the legislature might have intended to say, but must rely solely upon what it has said in the title under consideration.

“The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the Constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so.” Cooley’s Constitutional Limitations (7th Ed.), p. 212.

See, also, Callaghan v. Judge of Superior Court, 59 Mich. 610, at page 614 (26 N. W. 806).

In the instant case the title to this act, as already stated, contains no prohibition upon the sale of cigarettes to minors. It does contain a prohibition as to the use of cigarettes by minors, and the body of the act provides for the prohibition of such use in public places only. By section 2 of the act a criminal offense is created, and a person who sells, gives, or furnishes to any minor any cigarettes is liable to be punished by fine or imprisonment. Taking into consideration this title which the legislature has given this act, and by which we must be guided, it is our conclusion that section 2 by no fair intendment can be construed as having a necessary or proper connection with it.

It follows that the provisions of this section are broader than the title of the act, and to that extent this statute is unconstitutional and void. People v. Beadle, 60 Mich. 22-25 (26 N. W. 800); Ellis v. Hutchinson, 70 Mich. 154 (38 N. W. 14); Grosvenor v. Duffy, 121 Mich. 220-223 (80 N. W. 19). The other question presented does not require discussion.

The conviction will be set aside, and the respondent discharged.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Moore, J.

text:
    CAREY v. GLEASON EXPLORATION & MINING CO.
    Contracts — Services—Commissions.
    On reviewing the finding of the circuit judge determining that complainant had not sustained the burden of proof by his evidence, tending to show that defendant had agreed upon a royalty as complainant’s commission for finding a customer to lease a tract of mining property, held, that the decree should he affirmed.
    Appeal from Iron; Flannigan, J.
    Submitted October 6, 1914.
    (Docket No. 11.)
    Decided December 18, 1914.
    Bill by James P. Carey against the Gleason Exploration & Mining.Company and another for specific performance of a royalty contract. From a decree for defendants, complainant appeals.
    Affirmed.

      George F. Shea, Belmont Waples (Alexander Marshall, Warren, Cady & Ladd, Claudius B. Grant, and John H. Goff, of counsel), for complainant.

      G. R. Empson (William P. Belden, of counsel), for defendant Gleason Exploration & Mining Co.
   Moore, J.

This bill of complaint was filed to em force specific performance of an alleged verbal contract between the complainant and the Gleason Company, wherein the Gleason Company, it is claimed, verbally agreed to give the complainant all he could make over and above certain amounts named, as royalty, if he could find a customer who would explore and sublease for mining purposes two tracts of iron ore lands located in Iron county, Mich., known as the Goodman and Polock properties, of which the Gleason Company was lessee. From a decree in favor of the defendants the case is brought here by appeal.

The board of directors of the Gleason Company were Albert E. Neff, Clayton Voorhis, and Michael Gleason,. Matt E. Gleason, and J. C. McCreevy. Mr. Neff was president, Matt E. Gleason was vice president, and Michael Gleason was.general manager.

There is no dispute about the complainant having found a customer for the Gleason Company, but it is claimed by the Gleason Company that complainant received his, commission from the customer in the sum of $15,000, and that the Gleason, Company never agreed to pay the complainant a commission. It is the claim of complainant that such an agreement was made through Matt E. Gleason. Counsel for complainant state:

“The questions involved. which are raised .by the pleadings and testimony -are whether the defendant, Gleason Company, contracted with the complainant that, if he would secure some one who would explore the mining properties of defendant and would develop the same, defendant would give to complainant all he could sell, lease, or dispose of the same for over and above 47 cents per ton on Ore mined on the Polock property, and all * * * . on the Goodman property above 40 cents per ton. This, includes the question whether Vice President and Director Matt Gleason had power or authority, express or implied, to contract on behalf of the company, and whether he did so contract.”

Counsel for the appellee contend for the following propositions:

“(1) That the verbal agreement relied upon by complainant to secure from this defendant as a commission all the royalty which could be obtained in excess of 47 cents per ton on the Pólock property and 40 cents per ton on the Goodman property was never in fact made by Matt E. Gleason.
“(2) That Matt E. Gleason had no express or implied authority to make any such agreement in behalf of the Gleason Exploration' & Mining Company, and that such agreement, if made, was never, ratified or adopted by the Gleason- Company.
“(3) That the verbal agreement .alleged to have been made by complainant with the Gleason Company is void and unenforceable as against public policy, in view of the undisputed evidence that complainant demanded and secured from Mr. Kendall’s Company a commission of $15,000 in cash without disclosing to it the fact that he likewise claimed a commission from the Gleason Company.”

The case was heard in open cdurt. The trial judge in disposing of the case filed a lengthy opinion in writing, in which he reviewed the testimony at length. He concludes his opinion as follows: .

“A careful examination of the record and briefs of counsel fails to remove, but rather to fix, tie impression obtained at the hearing that on the question whether the contract claimed by the complainant was in fact entered into by Matt Gleason with or without authority, the complainant has not preponderated.
“That Matt Gleason, as director and vice president, did not, because of such offices, have authority to 'bind his company on the contract claimed is clear. No evidence was introduced tending to show the Gleason Company, either expressly or • impliedly, authorized him to make such contract. On the contrary, the evidence is convincing the company had determined not to sublet, these properties at a less royalty than 45 and 50 cents net to the company, and consequently, if Matt Gleason did undertake to conclude on the part of his company, the contract in question, it would be ineffectual unless it appears' it was ratified.
“The learned counsel for complainant do not gravely contend Matt Gleason was authorized to make the contract, but, in the argument and in a carefully prepared brief they endeavor to convince the contract was ratified. They invoke the rule of law which holds a principal, who has accepted benefits under an unauthorized contract, to a ratification of all the terms of such contract of which he had notice or regarding which he is fairly put upon inquiry. That rule of law is elementary, but unfortunately for the complainant, when applied to the facts in this case, serves rather to defeat than to sustain ratification. The rule relieves from the penalty of involuntary ratification the principal who is diligent in inquiring, and yet does not .know, or who is relieved from inquiring by the conduct of the other party. The Gleason Company was relieved from inquiry by the statement which Mr. Parey volunteered to its general manager, just before the Gleason Company bound itself to the New York Company, that his compensation, which was to be $15,000, was to come from the latter company. The general manager would have the right to assume that when Mr. Carey went into the subject of his compensation he would disclose all his claims in that regard, and was justified in resting and in acting without further inquiry.
“It would be a strange rule which would hold a principal, upon acceptance of the terms of an unauthorized contract which are known to him, to a ratification of other terms of the same contract which are unknown to him, and which are withheld or disclaimed by the other party at a time when the principal was able to go on, or refuse to go on, with the contract in its entirety.
“The discussion of the question whether there was ratification might be extended, but is not necessary, and would not be interesting in view of the conclusion that the alleged contract was not made.”

. The case was argued at length orally in this court. It is also well briefed. We have examined the record and briefs with care. It would profit no one to set out the testimony here. We shall content ourselves witib. saying that the testimony does not sustain the averments of the bill of complaint, but, on the contrary, it preponderates in favor of the contention of defendants that no contract to pay complainant a bonus was made.

The decree is affirmed, with costs.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


text:
    CHRISTIAN v. BRANSTROM.
    Contracts — Joint Property — Saees—Admissions.
    Defendant, wbo admitted on cross-examination that he agreed to pay to plaintiff a sum nearly equal to the amount claimed in the action, was in no position to contend on appeal that the trial court erred in directing a verdict for the amount conceded by defendant in favor of the plaintiff who brought suit for the price of a half interest in a spraying outfit that had been owned jointly by the parties.
    Error to Oceana; Sullivan, J.
    Submitted October 9, 1914.
    (Docket No. 57.)
    Decided December 18, 1914.
    Assumpsit in justice’s court by William Christian against Isaac Branstrom for the price of goods sold and delivered. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Affirmed.

      William J. Branstrom, for appellant.

      F. E. Wetmore, for appellee.
   Moore, J.

This case originated in justice’s court. It was appealed to the circuit court. From a directed verdict in favor of the plaintiff in the sum of $15.90, the case is brought here by writ of error.

The parties to this litigation are neighboring farmers, and prior to the commencement of this suit they purchased a spraying outfit; each paying one-half of the purchase price. Some time in the spring of 1912, the parties became dissatisfied with the joint ownership of the spraying outfit, and it is the claim of the plaintiff that he sold his interest in the outfit to the defendant for $17.50, to be paid as soon as defendant got his creamery check, which would be in about 10 days; that after that time expired a demand was made for the money, and, as it was not paid, this suit was begun. The plaintiff and several witnesses gave testimony tending to show the truth of his claim.

On the part of defendant it was claimed that no agreement in fact was made. The defendant was sworn as a witness on his own behalf. On the cross-examination he testified in part as follows:

“I didn’t intend to let him have that sprayer unless we agreed — he pay me for it — unless he would pay me for my interest in it. I told him he would pay for my part or he could pay me, as we couldn’t have the sprayer together any more because we couldn’t get along.
“Q. You wouldn’t let him take it away from there, then, without him buying your interest out?
“A. No, sir. I wanted to know who was going to have that sprayer.
“Q. That sprayer was worth $30 or $35, was it?
“A. It was worth about $25 or $30 to me.
“Q. You made an agreement to pay $15?
“A. Yes.
“Q. You was willing to pay $30 for it?
“A. Yes.
“Q. You haven’t paid that, have you?
“A. I made an agreement for it.
“Q. You made an agreement to pay $15?
“A. Yes.
“Q. But you haven’t paid it nor any part of it, nor haven’t made any tender of it in court, have you?
“A. No, sir.”

At the close of the testimony the attorney for the plaintiff said:

“For the purpose of shortening this thing up, we will waive argument and ask the court to direct a verdict in favor of the plaintiff for the sum of $15.”

The judge then directed a verdict in the sum of $15 and interest.

The attorney for the appellant insists the court erred in directing a verdict for the plaintiff. We do not feel called upon to spend very much time in trying to demonstrate it was not reversible error for the trial court to direct a verdict in favor of the plaintiff for an amount the defendant testified he agreed to pay.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.