text:
    William Wingert, Administrator, etc., v. William L. Carpenter, Circuit Judge of Wayne County.

      Pleading — Amendment—Jurisdiction—Foreign statute — Limitations.

    1. The statute of limitations cannot be evaded under the guise of an amendment; citing Gorman v. Circuit Judge, 27 Mich. 138.
    2. Plaintiff sued to recover damages for the death of his decedent, caused, as alleged, by the negligence of the defendant, a Michigan corporation, engaged in running a line of steamers in both Michigan and Canadian waters, in the latter of which the decedent was drowned. A verdict was directed for the defendant, on the ground that the cause of action arose wholly without the jurisdiction of this State. The plaintiff applied for leave to amend the declaration by setting forth the Canadian statute on the subject. This statute limited the time for bringing suit to 12 months, which had expired when the motion to amend was made. And it is held that the right of action, having become barred in Canada, was barred here, and that the motion was properly denied.

      Mandamus.

    Argued June 26, 1894.
    Denied July 5, 1894.
    Relator applied for mandamus to compel respondent to permit him to file an amended declaration. The facts are stated in the opinion.

      D. A. Stralcer (Charles C. Stewart, of counsel), for relator.

      F. C. Harvey, for respondent.
   Grant, J.

The relator, as administrator of the estate of Alexander Wingert, deceased, brought suit in the circuit court for the county of Wayne to recover damages for the death of said Alexander, alleged to have been caused by the negligence of the defendant, the Star Line of Steamers, a corporation organized and doing business under the laws of Michigan.

The deceased was drowned July 11, 1892, in Canadian waters. Suit was commenced on September 23, 1892, by filing declaration and entering rule to plead. Plaintiff based his right of recovery on How. Stat. §§ 8313, 8314. The case came to trial, and the court directed a verdict for the defendant, for the reason that the cause of action arose and the death occurred within the province of Ontario, wholly without the jurisdiction of this State, and that the Michigan statute relied upon had no application. Subsequently the verdict was set aside, in order to give the relator the opportunity to move to amend his declaration. He submitted an amended declaration with his motion to amend. The motion was denied, and the purpose of this petition is to compel respondent to permit the filing of this amended declaration. The Canadian statute counted upon is set forth in the amended declaration, and provides that the action must be commenced within 12 months after the death of the deceased person. When .the amendment was proposed, the 12 months had expired.

The cause of action arose in Canada, and under Canadian laws. If the plaintiff has any right of action, it is by virtue of those laws. The question must therefore be determined by the same rule that would hold were this the commencement of a suit. The statute of limitations cannot be evaded under the guise of an amendment. Gorman v. Circuit Judge, 27 Mich. 138. The Canadian statute establishes the liability and provides the remedy. It must control. The right of action, having become barred in Canada, is barred here. The Harrisburg, 119 U. S. 214.

The writ must be denied.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    Robert T. Gibbons, Receiver of the City National Bank of Greenville, Michigan, v. Cheney O. Pemberton et al.

      Fraudulent conveyances — Bill in aid of execution — Pleading.
    1. A bill filed in aid of execution, which alleges that the judgment debtor executed a deed for a pretended consideration of $1,500, by which he pretended to convey the land levied upon to his sons, if not demurred to, sufficiently states the ownership of the land by the debtor at the time of the conveyance.
    2. A father conveyed certain land to his sons, after which one of his creditors attached the land, and, after obtaining a judgment, filed a bill in aid of an execution issued thereon. And it is held that an objection that the bill is defective in failing to allege the insolvency of the judgment debtor is untenable; that it was not necessary that an execution should have been returned nulla bona before filing the bill; that the attached property is subject to the attachment lien; that the sole question in such cases is whether the transfer by the judgment debtor of the identical property, whether real or personal, was in fraud of creditors; that, if the attachment is not dissolved, the lien is good as against the debtor, and it makes no difference how much other property he may own; that his vendees alone can contest the title.
    Appeal from Mecosta. (Palmer, J.)
    Submitted on briefs June 27, 1894.
    Decided July 5, 1894.
    Bill in aid of execution. Complainant appeals.
    Decree reversed, and one entered in this Court for complainant.
    The facts are stated in the opinion.

      Fletcher & Wanty, for complainant.

      Frank Dumon, for defendants.
   Grant, J.

In November, 1891, the defendant Cheney 0. Pemberton was indebted to the City National Bank of Greenville in the sum of 81,200. The officers of the bank were pressing him for payment. He asked further time, which they refused to grant. On the 23d day of that month he conveyed to the codefendants, his sons, the land in controversy. March 12, 1892, the bank commenced suit by attachment, and levied upon the land. Judgment was rendered July 7, execution duly issued and levied, and the complainant then filed this, bill in aid of the execution, charging that the conveyance was made without consideration, and to defraud creditors. Proofs were taken before a circuit court commissioner, reported to the court, and the bill dismissed. No reason is given by the court for its decree of dismissal. The points insisted on by the defendants are (1) that the bill does not allege that Cheney O. Pemberton had any interest in the land at the time of the conveyance; (2) that it does not allege that Mr. Pemberton was insolvent; and (3) that the conveyance was not fraudulent.

The first point, if valid, should have been raised by demurrer. It is true that the bill does not expressly allege that the judgment debtor was the owner of the premises, but it does allege that he executed a deed for a pretended consideration of $1,500, by which he pretended to convey the land to his sons. In the absence of a demurrer the allegation was sufficient.

It was not necessary to allege the insolvency of the judgment debtor, or to have an execution returned milla tona. The attached property, whether real or personal, is subject to the attachment lien; and the sole question in such cases is whether the transfer by the debtor of the identical property, whether real or personal, was in fraud of creditors. If the attachment is not .dissolved the lien is good, as against the debtor, and it makes no difference how much other property he may own. His vendees alone can contest the title.

The loan to Mr. Pemberton was made upon the faith of his representation that he was the owner of this land. Mr. Cheney O. Pemberton was examined as a witness for the complainant. We think the fact is clearly established by his testimony that the deed was without consideration, and made for the express purpose of avoiding the payment of the complainant’s claim. He does not show that he owned, or had an interest in, any other property, except 160 acres of land, in which he had no interest other than as security for signing notes and a bond for another party. November 12, 1891, he wrote to Mr. Moore, the president of the bank, saying that two attachments had been placed upon this land, and asking a renewal of the notes for 90 days. The deed in question was made shortly after the refusal of the bank to make the renewal. Mr. Pemberton testified that when he sold he got promises, buf no money; that he took his sons’ check for $1,500, and lent it back to them within a week or 10 days, and was not positive that he did not give it back to them the same day; that he did not think his sons kept a joint bank account. When asked to produce the check he promptly refused. He said that $600 of the amount was paid by one of his sons the day he gave his testimony, which was May 15, 1893, and that each of his sons had paid him $750. , Only $200, if any, was paid before the attachment. Neither of his sons was a witness. If they were bona fide purchasers, it was in their power to place the bona fides of the transaction beyond question. Had they paid $1,500, it is impossible to believe that they would not have furnished the proof. We cannot avoid the conclusion that the transfer was fraudulent.

Decree reversed, and entered here for the complainant, with costs of both courts.

The other Justices concurred.


text:
    The People v. Arthur Machen.

      Criminal law — Larceny — Excluding witness ' from court-room— Evidence — Res gestae — Indorsing witnesses on information — Instructions to jury.

    1. Respondent was informed against for attempting to commit the crime of larceny from the person. - On the trial his counsel requested that one of the two : officers who made the arrest should be excluded from the court-room while the other was testifying. And it is held that it was not error to refuse to grant the request, it being a matter entirely within the discretion of the court; citing People v. Burns, 67 Mich. 537.
    2. Evidence that, just prior to his arrest, the respondent was seen with a newspaper in one hand, while his other hand was among the ladies’ dresses, feeling of their pockets, and that the witness notified one of the officers of respondent's movements, which information caused them to watch him, was competent as a part of the res gestae, tending to show intent.
    3. During the trial the prosecuting attorney was permitted to indorse the name of a witness upon the information, after testifying that he had just learned that he was a material witness, And it is held that in this there was no error.

      4. Evidence that a “billy” was found upon the person of the respondent, at the time of his arrest, was admissible.
    5. No testimony was offered on the part of the respondent. The jury were fully and fairly instructed upon the questions of reasonable doubt and the presumption of innocence, and as to all of the elements necessary to be proved in order to convict. In the course of the charge the circuit judge said: “ You have heard the testimony for the prosecution. That is all there is to this case, — the testimony for the prosecution.” And it is held that this language, when considered with the entire charge, cannot be construed, as counsel insists, into even an intimation on the part of the judge that the people had established their case.

      • Error to recorder's court of Detroit. (Chambers, J.)
    Submitted on briefs June 28, 1894.
    Decided July 5, 1894.
    Eespondent was convicted of attempting to commit the crime of larceny from the person, and sentenced to imprisonment in the State prison for 28 months.
    Judgment affirmed.
    The facts are stated in the opinion.

      Harlow P. Davock, for respondent.

      A. A. Filis, Attorney General, and Allan H. Frazer, Prosecuting Attorney, for the people.

       INDORSING NAMES OF WITNESSES ON INFORMATION.
      For cases bearing upon the proper construction of and practice under How. • Stat. § 9549, which provides that, the prosecuting attorney shall indorse on all informations the names of the witnesses known to him at the time of filing the samp; and, at such time before the trial of any case as the court may, by rule or • otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him, — see:

        General Rules Applicable to the Subject.

      1. Hill v. People, 26 Mich. 496, holding that the second requirement of the statute, for the indorsement of the names of witnesses before the trial, does not by its terms, nor by any reasonable implication, extend to any witnesses not known to the prosecuting attorney previous to the commencement of the trial, but involves a clear implication that it was not intended to apply to witnesses first discovered by him to be material after the commencement of the trial.
      2. People v. Quick, 58 Mich. 321, holding that the respondent has the right to know, in advance of the trial, what witnesses are to be produced against him, so far as then known, and to have the names of any new witnesses indorsed on the information as soon as discovered; that the object of this is not merely to advise him what witnesses will be produced on the main charge, but to guard him against the production of persons who are unknown, and whose character he should have an opportunity to canvass; and that it is as important to impeach a rebutting witness as any other.
      3. People v. Price, 74 Mich. 37, holding that, as to such witnesses as are known to the prosecuting attorney at the time of filing the information,, the statute is imperative that he shall indorse their names at the time of such filing; and his failure to do so is not excused by a want of knowledge of their whereabouts, or that their attendance can be secured.
      4. People v. Howes, 81 Mich. 396, holding that the right of a respondent to have the names of witnesses known to the prosecuting attorney indorsed on the information before the trial is a substantial one, which courts cannot ignore; nor will the carelessness or neglect of the prosecuting officer warrant the court in per.mitting such indorsement on the trial.

        Waiver.

      1. People v. Howes, 81 Mich. 396, holding that where, after the commencement of the trial, the prosecuting attorney stated to the court that he had just learned of two material witnesses whose names were not indorsed on the information, and the respondent’s counsel thereupon waived any further showing, the indorsement of such names was not error.
      2. People v. Harris, 95 Mich. 87, holding that an objection to the testimony of a witness because his name is not indorsed on the information comes too late after the witness has been sworn and examined at length.

        Illustrative Cases.

      1. Hill v. People, 26 Mich. 496, where, after several witnesses had testified on the part of the people in a burglary case, and before the prosecution had rested, the prosecuting attorney called as a witness one whose name was not indorsed on the information, and, upon its being .satisfactorily shown to the court that the prosecuting attorney was not apprised that such person was a material witness before the trial commenced, nor until the time he was thus called, the court permitted his name to be then indorsed on the information, and he testified to admissions made to him by the respondent tending to prove his guilt. And it is held that the ruling of the court was clearly correct.
      2. Wellar v. People, 30 Mich. 16, 23, where, on the trial of a respondent for murder, the defense was compelled to call one of the two eye-witnesses of the homicide as a witness, although his name was indorsed on the information as one of the people’s witnesses. And it was held that the fact that the name of a witness is indorsed on the information does not of itself involve any necessary obligation to do any more than have him in court ready to be examined; but in cases of homicide, and in other cases where analogous reasons exist, those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, should always be called, unless, possibly, where too numerous.
      '3. People v. Hall, 48 Mich. 482, 487, where the respondent was informed against for murder, and on the trial the court allowed the names of several witnesses to be added to the information, under objection, without any showing that they were not known earlier, and in time to give respondent notice in season to anticipate their presence before trial. And it was held that the statute is explicit that this shall be done before trial where witnesses are known; that this is not a mere, formality, and wherever it has been provided for by statute it has been treated as a substantial right.
      4. People v. Moran, 48 Mich. 639, where, on filing an information for burglary, the prosecuting attorney indorsed thereon the names of certain witnesses, and when the case came on for trial, and before the trial was entered upon or jury called, he indorsed the names of a number of other witnesses without any application to or permission from the court. And it was held that the case was ruled by People v. Hall, 48 Mich. 482, and a new trial was directed.
      5. People v. Perriman, 72 Mich. 184, 187, where the respondent was convicted of bigamy, and assigned as error that the prosecuting attorney added the names of two witnesses to those already indorsed on the information, by leave granted in court before trial, without any sufficient showing that they were not known to him before. And it was held that it might be answered that no application was made for a continuance on that ground, but that it further appeared that the added witnesses lived in another state, and were beyond the reach of process from this State, so that a knowledge of their materiality would not have insured their attendance; that, while fairness requires that no' needless delay should occur in placing on the information the names of known witnesses, yet it cannot be made an absolute requirement in cases of such a nature as the present, where the prosecution cannot compel attendance.
      6. People v. Evans, 72 Mich. 367, holding that the court may properly permit the prosecuting attorney to indorse the name of the complaining witness, whose testimony was taken' on the preliminary examination, upon the information, after the jury is sworn, he having failed to make such indorsement through inadvertence; but if the respondent makes a reasonable claim that he is not prepared to meet the testimony expected to be given by said • witness, he should be allowed a reasonable time to prepare his defense.
      7. People v. Price, 74 Mich. 37, where the names of witnesses known to the prosecuting attorney at the time of filing the information were allowed to be indorsed after the jury and a witness had been sworn. And it was held that the refusal of the court to grant the respondent a continuance on his application was error, for which the conviction should be reversed, and a new trial ordered.
      8. People v. Mills, 94 Mich. 630, holding that where a police officer has been present since the commencement of a criminal trial, seated at a table with the prosecuting officers, and his name has been frequently mentioned in the testimony, and it is clearly apparent to the court that the failure to indorse his name on the information was an oversight, it is not error for the court to permit such indorsement to be made after he is called and sworn as a witness, and his examination to proceed!

   Grant, J.

Respondent was convicted of an attempt to commit larceny from the person. Two officers testified that their attention had been called to his actions, that they watched him, and arrested him with his hand in a lady’s pocket.

1. Respondent’s counsel requested that one officer be excluded while the other was testifying, which request was refused. This point is ruled by People v. Burns, 67 Mich. 537. The refusal was not error.

2. One Orth,, just previous to the arrest, had seen respondent with a newspaper in one hand and his other hand among the ladies’ dresses, feeling their pockets, and notified one of the officers of his movements. This information caused the officers to watch him. Error is alleged upon the admission of this evidence. It was competent as a part of the res gestae, tending to show the intent.

3, During the trial the prosecuting attorney was permifcted to indorse the name of a witness npon the information, after testifying that he had just learned that he was a material witness. In this there was no error.

4. There was no error in admitting evidence that a “billy” was found upon the person of the respondent at the time of his arrest.

5. Complaint is made that the judge, in charging the jury, said:

“You have heard the testimony for the prosecution. That is all there is to this case, — the testimony for the prosecution.”

No testimony was offered on the part of the respondent. The judge fully and fairly instructed the -jury upon the presumption of innocence, reasonable doubt, and all the elements necessary to be proven in order to convict. This language, when considered with the entire charge, cannot be construed, as counsel insists, into even an intimation on the part of the judge that the people had established their case. The ease was fairly submitted to the jury.

We find no error, and the judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    William H. Lee et al. v. George M. Buck, Circuit Judge of Kalamazoo County.

      Constitutional law — Insolvent debtor — Discovery—Proceedings at law.

    1. How. Stat. chap. 278, which authorizes proceedings at law in the nature of a judgment creditor’s bill, in so far as it provides fpr the examination of the judgment debtor, and a discovery of his assets, is not in conflict with any constitutional provision, and is to this extent valid.
    2. In view of ^16 constitutional provision (article 6, § 5) that “the Legislature shall, as far as practicable, abolish distinctions between law and equity proceedings,” the fact that the proceeding for discovery, — authorized by chapter 278, How. Stat., which requires a judgment debtor to appear, and make discovery on oath concerning his property, etc., — is one which was formerly within the jurisdiction in equity, furnishes no reason for holding that the Legislature could not properly confer the powers attempted to be granted upon a court of law.

      Mandamus.

    Argued February 20, 1894.
    Granted July 10, 1894.
    Relators applied for mandamus to compel respondent to entertain jurisdiction of proceedings for the discovery of the assets of a judgment debtor, instituted under chapter 278, How. Stat. The facts are stated in the opinion.

      Osborn, Mills & Master (Fletcher & Wanty, of counsel), for relators.

      Howard & Roos and Bo-udeman & Adams, for respondent.
   Montgomery, J.

The only question involved in this case is whether the provisions of the act of 1851, providing for the compelling of disclosures by judgment debtors in a proceeding before the circuit judge, upon the return of an execution unsatisfied, are wholly invalid. The provisions sought to be invoked in this proceeding are those contained in How. Stat. §§ 8107-8109. The circuit judge held the entire chapter inoperative and invalid.

The provisions of the law were criticised in Reed v. Baker, 42 Mich. 272, but that it was not the intention to declare the law invalid is apparent from the statement contained in the opinion:

“We need not consider its legal validity to bind parties before 'the court.”

In Prescott v. Pfeiffer, 57 Mich. 22, a suit was instituted by a receiver appointed under the provisions of section 8111, and the Court, in the course of the opinion, said.

“An objection made to the right of the receiver to attack fraudulent transfers does not seem to us well taken. The case relied upon for this is Reed v. Baker, 42 Mich. 272, where we held that in the legal supplementary proceedings no one but the judgment debtor could be treated as a party, and therefore third persons could not have their rights passe.d upon as they might under an ordinary creditors’ bill, under which they were made parties. But we did not hold the receiver could not sue them. Oh the contrary, we think he may do so in such form, legal or equitable, as is best adapted for that purpose.”

This was certainly a clear recognition of the validity of the provisions of the statute. Nor are we able to see any reason why these provisions of the statute may not be sustained. The statute is not, as is contended, necessarily useless or void, although the power to adjudicate rights of parties not before the court be denied. The essential pulpóse of the proceeding is that of discovery, and the statute may be made effective for this purpose. We think in so far as the proceeding authorizes the examination of the judgment debtor it should be sustained. In the case of Ex parte Boyd, 105 U. S. 647, it was said:

“There is certainly nothing in the nature of an examination of a judgment debtor, upon the question as to his title to and possession of property applicable to the payment of a judgment against him, and of the fact and particulars of any disposition he may have made o-f it, which would render it inappropriate, as a proceeding at law, under the orders of the court where the record of the judgment remains and from which the execution issues. Such examinations are familiar features of every system of insolvent and bankrupt laws, the administration of which belongs to special tribunals, and forms no necessary part of the jurisdiction in equity.”

It should be further borne in mind that in this State the Constitution (article 6, § 5) provides that—

“ The Legislature shall, as far as practicable, abolish distinctions between law and equity proceedings.”

In view of this provision, the fact that the proceeding for discovery was one which was formerly within the jurisdiction in equity furnishes no reason for holding that the Legislature may not properly confer similar powers upon a court of law.

We are satisfied that, so far as the statute provides for a discovery of the assets of the insolvent debtor, it is not in conflict with any constitutional provision, and is to this extent valid. This being determined, it is not our province to criticise the wisdom of its provisions.

We think the order of the circuit judge should be reversed.

The other Justices concurred.


author: McGrath, C. J.

text:
    David Cohen et al. v. Joseph Jackoboice.

      Written contract — Order—Parol evidence.

    A written order for the insertion in a designated paper, published by the orderee, of an advertisement for a given time, at a stated price, which the orderer agrees to pay at a specified date, contains all the indicia of a contract, except that it is not executed by b'oth parties, and parol evidence of a contemporaneous agreement that, if the advertisement did not suit, it could be discontinued at any time, is inadmissible to vary the terms of the order.
    Case made from Kent. (Grove, J.)
    Submitted on briefs March 9, 1894.
    Decided July 10, 1894.

      Assumpsit. Plaintiffs assign error.
    Reversed, and judgment entered for plaintiffs.
    The facts are stated in the opinion.

      William J. Stuart, for appellants.

      Frank A. Rodgers, for defendant.
   McGrath, C. J.

Plaintiffs are publishers of the Lumber Worker. On September 10, 1891, defendant gave to plaintiffs the following written order:

“The Lumber Worker Co.,
^Cincinnati, O.:
“Please insert my advertisement in the Lumber Worker 12 months, to .occupy -J page, for which we agree to pay you or order the sum of $24, payable quarterly.
“.Joseph Jackoboice.”

After plaintiffs had published' said advertisement for six months, defendant wrote them to discontinue the advertisement, and sent them the amount due to date. Plaintiffs continued the publication to the end of the year, and sued to recover the balance. The trial court held that the writing did not constitute such a written contract as would exclude parol evidence of a contemporaneous agreement that, if the advertisement did not suit, it could be discontinued at any time.

In this we think the court erred. There-is no ambiguity in this instrument. It is an order to insert an advertisement, to occupy a given space, for a given period, at a given price, and specifies when the price agreed upon shall be paid. It contains'all the indicia of a contract, except that it was not executed by both parties. Defendant does not attempt to supply an omission in' the instrument. He does not undertake to show any fraud or misrepresentation in matters of inducement. Although this instrument directs a publication for 12 months, he was allowed to show that he reserved the right, in case the advertisement did not suit, to discontinue it at any time. In other words, he was allowed to show, by parol, that he reserved a right inconsistent with the plain and express provisions of an instrument which could have no other office than as a contract, to be made effectual upon acceptance, and needing only such acceptance to give it all the force and effect of a contract. Suppose it had been written out ,by defendant, but it had not been signed by him, but had been delivered with like intent. There is no question of the statute of frauds here.

In Farmer v. Gregory, 78 Ky. 475, it was held that a writing evidencing the whole of an agreement between the parties, which has been delivered, accepted, and business transacted under it, although not signed, has the same force and effect as if it had been signed by the parties, as to being varied by parol.

The general rule is that a receipt is always subject to be explained, varied, or controlled by parol, but this is true only so far as it is such in fact as well as in name. Though a paper purports to be a receipt, still, if it in fact contains a complete contract between the parties, to that extent it cannot be varied and contradicted by parol evidence.

In Scott v. Whittemore, 27 N. H. 309, it was held that a receipt given to an officer “for 100 bushels of rye, valued at §100," could not be explained by parol evidence to signify 100 bushels of rye unthreshed.

In Bursley v. Hamilton, 15 Pick. 40, Bursley, as deputy sheriff, attached certain property as that of one Nye, and defendant receipted for the goods as “this, day attached by said Bursley, as the property of Isaiah Nye, taken at the suit of Averill, which goods and chattels I promise to deliver to said Bursley on demand." The' court held that, by the receipt, defendant admitted that the property was attached as the property of another person, and promised to return it; that, in an action to enforce the promise, he was precluded by such admission from alleging property in himself; and that parol evidence was inadmissible so far as it was intended or- would have the effect to vary, alter, or control the written contract, and to ingraft a defeasance or condition upon a contract absolute and unconditional. See, also, Curtis v. Wakefield, 15 Id. 437.

In La Farge v. Rickert, 5 Wend. 187, McNitt, as agent for La Farge, distrained Carpenter’s property for rent. After distress, the agent, agreed to buy of Carpenter sufficient property to satisfy the rent. Defendant consented, and signed a memorandum in writing, in the nature of a receipt, describing the property and prices, and concluding as follows: “All of which I promise to deliver to said La Farge on or before * * *, or pay said La Farge the sum of," etc. The court held that, inasmuch as the law fixed the place of delivery as the creditor’s residence, the written contract of the parties, according to the established rules of construction, had settled their rights and duties as to the place of delivery, and it was improper to admit parol evidence of declarations before or at the time of the giving of the receipt to show that a different place had been selected.

In Goodwin v. Goodwin, 59 N. H. 548, the instrument was as follows:

“In consideration of $2,500, to me paid by Martha A. Goodwin, executrix of said will, I hereby waive all right to contest said will, or the proof thereof, and all claim I have or might have as heir of said deceased.”

It was held that the instrument was of a double nature, and, in so far as it was a receipt, it was capable of explanation and contradiction with regard to any fact erroneously stated, but that in its main features it was more properly to be regarded as a contract made binding upon the plaintiff by his signature, and on the defendant by being delivered to and accepted by her; that in this aspect it could no more be varied or controlled by oral evidence than any other written contract between the parties; that if the document had one distinct meaning, in reference to the oircumstances of the case, it must be construed accordingly, and evidence that the party executing intended to express some other meaning was not admissible.

In Marks v. Mill Co., 43 Iowa, 146, it was held that the writing, although in form a receipt, expressed a contract of bailment, which could- not be contradicted or varied by evidence of any custom or usage.

In Alcorn v. Morgan, 77 Ind. 184, it was held that a written lease, in form a receipt, but containing independent stipulations, must be regarded as a contract, and' that parol evidence was admissible to vary or contradict the receipt, but was not to add to or take from the terms of the contract. To the same effect are Squires v. Amherst, 145 Mass. 192; Carpenter v. Jamison, 75 Mo. 285; Young v. Cook, 15 La. Ann. 126; Brown v. Brooks, 7 Jones (N. C.), 93.

In Wykoff v. Irvine, 6 Minn. 496, certain bankers receipted for a sum “to be loaned out; we to account to him [tbe owner] for the principal and interest, less our charges, etc., not to exceed 2- per cent, per annum.” Held, that parol evidence tending to show that the money was to be loaned for the period of six months, and that the brokers were to be liable for the amount and interest, would be in direct conflict with the terms of the receipt, and could not be admitted.

A bill of lading partakes of the nature of a receipt and a contract, and, so far as it partakes of the nature of a receipt, it may be explained or perhaps contradicted, but, to the extent that it defines the liabilities of the parties, it is subject to the same rules as other written contracts. Chapin v. Siger, 4 McLean, 379. The same rulé prevails as to bills of sale or of parcels.

In Thompson v. Williams, 30 Kan. 114, it was held that while a writing which contains simply an acknowledgment of payment or delivery is only prima facie evidence oí the fact, and may be contradicted by oral testimony, yet when, in addition to such acknowledgment, it contains an agreement to do anything in respect to the property delivered, then, as to this latter matter, it stands on the basis of any other written contract, and cannot be contradicted or varied by parol testimony.

In Linsley v. Lovely, 26 Vt. 123, it was held that, if a bill of sale expresses the contract of the parties, it cannot be controlled by parol evidence any more than any other written contract; but where the bill of sale simply stated that on a given day the defendant bought of the plaintiff certain articies, at given prices, held, that it did not import a contract, but was simply declaratory of the fact, and that the .defendant could show the true contract of the parties, consistent with those written declarations, by parol evidence. See, also, Hazard v. Loring, 10 Cush. 267; Atwater v. Clancy, 107 Mass. 369; Perrine v. Cooley, 39 N. J. Law, 449.

In Millett v. Marston, 62 Me. 477, an order for fruit trees was addressed to plaintiff, and signed by defendant only. The order directed plaintiff to deliver to defendant, at a given place, a specified number of fruit trees, of the various kinds mentioned, the heights of some of them being mentioned, but no other specification as to size, for which defendant promised to pay $121 when notified that they were ready for delivery. Defendant offered to show that it was agreed that the paper was only to be used as a memorandum of the number, kinds, and prices of the trees, and also to show what was to be the size of the trees according to the actual contract, and that he was to have the right to examine them upon arrival, in order to determine whether or not they were such as the contract required. The trial court excluded this testimony, and the ruling was affirmed. The court say:

“The parol evidence offered by the defendant, and excluded by the presiding justice, goes to show that the contract duly executed, and upon its face intelligible, unambiguous, reasonable, and precise, is incomplete, and was only designed as a basis or outline of a contract, to be subsequently filled up with other independent stipulations and requirements. It is obvious that written instruments would soon come to be of little value if their explicit provisions may be varied, controlled, or superseded by such evidence. It is plain, also, that to admit such evidence for such purposes would be greatly to increase the temptations to commit perjury, already quite too prevalent in jury trials.”

It will be observed that the test applied in these cases is not whether the instrument is complete in and of itself, and sufficient to bind both parties, but rather, does it, upon its face, indicate an intention to embody the elements of an engagement, and does it in fact import a legal obligation, without uncertainty as to the object or extent of the engagement? Is it complete as respects the thing bargained for, the price, time of payment, etc. ? Does it lack in essential details? Is it definite upon the cpestion in dispute?

One of the early cases is that of Allen v. Pink, 4 Mees. & W. 140, where plaintiff negotiated with defendant for the purchase of a horse. Defendant agreed that, if the horse did not work well or go quietly in harness, plaintiff might return the horse, and get his money back. Plaintiff bought the horse for 7£. 2s. 6d., which sum was paid, and defendant executed the following receipt: “Bought of G. Pink a horse for the sum of 7£. 2s. 6. G. Pink.” Plaintiff returned the horse, and sued to recover the money paid., The court held that the general rule is that—

“If there has been a parol agreement, which is afterwards reduced by the parties into writing, that writing alone must be looked to to ascertain the terms of the contract; but the principle does not apply here. There was no evidence of any agreement by the plaintiff that the whole contract .should be reduced into writing by the defendant. The contract is first concluded by parol, and afterwards the paper is drawn up, which appears to have been meant merely as a memorandum of the transaction, or an informal receipt for the money, not as containing the terms of the contract itself.”

Mr. Greenleaf (1 Ev. § 275) says:

“By ‘written evidence/ in this place, is meant not everything which is in writing, but that only which is of a documentary and more solemn nature, containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. * * * When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, fit is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony oí a previous colloquium, between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend, in many instances, to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected. In other words, as the rule is now more briefly expressed, 'parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument/”

The language of some of our own cases upon this subject is not altogether clear. The first of these cases is that of Phelps v. Whitaker, 37 Mich. 72. Suit was brought upon an order for a windmill. It will be borne in mind, however, that defendant pleaded the general issue, and gave notice of proof that his signature to the order was obtained by false and fraudulent representations. Parol evidence is always admissible, however solemn and complete the instrument, to show fraud or deceit at the inception of the instrument, when properly pleaded. Mr. Justice Marston cites in support of the rule laid down the cases of Whiting v. Hill, 23 Mich. 399; Trevidick v. Mumford, 31 Id. 467; Ochsenkehl v. Jeffers, 32 Id. 482; Doty v. Martin, 32 Id. 462; and Miller v. Barber, 66 N. Y. 558. The Whiting case, the Ochsenkehl case, and the Miller (New York) case were actions for fraud and deceit. In the Trevidick and Doty cases the Court held that the instruments executed were incidents of transactions involving other collateral agreements, the terms of which would not either naturally or necessarily enter into the written instruments. The same question was involved in Bird v. Pope, 73 Mich. 483.

Richards v. Fuller, 37 Mich. 161, was the case of a mere naked assignment, for a valuable consideration,” of a contract for logs, and the question arose as to a warranty of quality. The same principle was, asserted in Sirrine v. Briggs, 31 Mich. 443.

In Weiden v. Woodruff, 38 Mich. 130, defendant had given a written order for lightning rods, which order was countermanded before acceptance. The Court were clearly right in holding that the order was not binding until it had been accepted, and was therefore subject to countermand.

In Nichols, Shepard & Co. v. Crandall, 77 Mich. 401, defendant attempted to add to an express warranty contained in the order, and the Court held the evidence inadmissible.

In National Cash Register Co. v. Blumenthal, 85 Mich. 464, defendant sought to show a contemporaneous verbal agreement that he was to have five days in which to try the machine, and, if not satisfactory, he might return it. The Court held that the testimony was properly excluded.

In Palmer v. Roath, 86 Mich. 602, it was held that evidence might be given of the representations of a manufacturing agent as to the kind, character, and condition of an engine ordered of the company, which did not vary or contradict the description in the order. See Chamberlayne’s Best, Ev. (Internat’l ed.) 221, as to proof of subject-matter.

In Aldine Press v. Estes, 75 Mich. 100, the facts are complicated. Mr. Justice Campbell, speaking for three members of the Court, says: The testimony was not so much to vary a contract as to show that there never was any final contract;” and this, not because the order was signed only by defendant, but because it expressly provided that it should be regarded only as a business letter, and was subject to acceptance by the principal. It was claimed that it had been countermanded; that no notice of its acceptance had been received; and that defendant had authorized no one to bind him by procuring its acceptance except on condition of retaining the right of countermand.

In Wood Machine Co. v. Gaertner, 55 Mich. 453, the Court held that a correct understanding of the instrument could hardly be obtained unless the facts sought to be proven were brought out. No different rule of law is announced in that case, but, if open to any criticism, it is as to the construction placed upon the terms of the instrument.

In Bronson v. Herbert, 95 Mich. 478, defendant insisted that the order for stock was given in pursuance of an agreement made with one Essig, whom defendant supposed to be acting for plaintiff, to set out fruit trees on 40 acres of land; that certain other trees had been furnished under such agreement, which trees were worthless; and that, although Bronson was nominally plaintiff, Essig was the real party in interest. The evidence tended to show very clearly that the later order was not intended as a separate contract embracing the entire agreement between the parties, but that it was a mere incident of a contract covering the entire subject-matter.

In none of these cases, except perhaps the last, is the admissibility of parol testimony made dependent upon the fact that the instrument was signed by one party only. The language used in some of the cases is based upon a misapprehension as to the issue in Phelps v. Whitaker.

The instrument in the present case is more than a mere memorandum. It has all the elements of an agreement, and the admission of parol testimony tending to contradict terms which are plain and explicit was erroneous.

The judgment must be reversed, and judgment entered here for plaintiffs, with costs of both courts.

The other Justices concurred.


author: Montgomery, J. McGrath, C. J.

text:
    C. Sumner Burroughs v. William H. Eastman, Impleaded with John Johnson and William J. Hurley.

      Constitutional law — Arrest ivithout warrant — Due process of law —False imprisonment — Inconsistent verdict.

    1. The provision of the charter of the city of Grand Rapids which authorizes police officers to arrest without process all persons who shall, in the presence of the arresting officer, be engaged in the violation of any ordinance of the city, is constitutional.

    2. Where a superintendent of police directs a member of the police force to make an arrest without warrant, and, in a suit for false imprisonment brought against him and the officer making the arrest, a verdict is rendered in favor of such officer and against such superintendent, from which he appeals, his contention that the verdict against him should not be allowed to stand because of the inconsistency of the verdict should be overruled.
    Error to Kent. (Adsit, J.)
    Argued January 22, 1894.
    Decided July 10, 1894.
    Case. Defendant Eastman brings error.
    Beversed.
    The facts are stated in the majority opinion.

      Edwin F. Uhl, for appellant.

      James E. McBride, for plaintiff.

       As to right to arrest without a warrant, see note to State v. Hunter, 8 L. R. A. 529.

   Montgomery, J.

This is an action for false imprisonment.

The plaintiff was, by defendant’s directions, arrested while engaged in giving a performance at a theater in the city of Grand Bapids on Sunday evening. There existed an ordinance of the city of Grand Eapids relative to shows, which prohibited a person or company giving theatrical exhibitions on the first day of the week.

1. The charter of the city provides that police officers, in addition to the power and authority possessed by them at common law and under the laws of the State in matters of a criminal nature, shall have the power to arrest without process all persons who shall, in the presence of the arresting officer, be engaged in the violation of any ordinance of the common council of the city, and that the police officer may detain such persons in custody until complaint can be made and process issue for their arrest and trial. It will be seen, therefore, that, so far as the legislative power can go, it has been exercised to authorize an arrest without warrant for an offense against the ordinances of the city which is committed in the presence of the officer. It is insisted, however, that the act which attempts to clothe the officer with this power is unconstitutional.

This Court has repeatedly held that, in the absence of any statutory power or authority, an officer cannot arrest without warrant except on suspicion of felony, or in case of an actual breach of the peace committed in the presence of the arresting officer. See Way’s Case, 41 Mich. 304; Davis v. Burgess, 54 Id. 514; Quinn v. Heisel, 40 Id. 576; People v. Johnson, 86 Id. 175. But whether the Legislature may extend the right to the officer to arrest for other misdemeanors, not amounting to a breach of the peace, has not been directly passed upon, unless it be in the case of Robison v. Miner, 68 Mich. 549. In People v. Johnson, 86 Mich., at page 179, the subject is referred to, but, as the record was not in shape to present the question, it was left undecided.

In Quinn v. Heisel, 40 Mich. 577, Mr. Justice Marston said:

“We are not at present prepared to say that an ordinance of the city of Grand Eapids could authorize arrests without process in cases not justified by common-law principles.”

But this statement in this case was mere dictum, and, if the quaere suggested had been answered in the negative, it would not necessarily follow that the Legislature of the State might not confer a power which the common council of the city, under the charter then in force, could not have conferred.

In Robison v. Miner, it must be conceded, language is employed which might be construed as prohibiting the power of arrest. The statute there under consideration was Act No. 313, Laws of 1887, which contained the peculiar provision that—

“Any person found in the act of violating any of the provisions of this section shall be deemed guilty of a breach cf the peace, and punished accordingly, and the arrest therefor may be without process; and this punishment shall be taken to be in excess of all other manner of punishment in this act provided for a violation of the provisions of this section. All officers authorized to make arrests for a breach of the peace shall have like power to make arrests under the provisions of this section as in other cases of a breach of the peace.”

.These provisions are peculiar and incongruous. It seemed to have been án attempt on the part of the Legislature to confer the power of arrest by a process of first declaring that to be a breach of the peace which is not such in fact, and by further providing that a party might be punished for such breach of the peace in addition to and beyond the punishment provided by the same statute. The conclusion that these provisions could not be maintained, in view of the constitutional provision that no person shall be twice put in jeopardy for the same offense, was undoubtedly correct. As was well said by Mr. Justice

Campbell, in rendering the opinion of the Court:

“This statute is practically, if carried out, a general warrant itself, directing all officers to visit houses and business places without other authority, and make searches and arrests, and close up places of business on their own well or ill founded notion that the law has been violated.”

But, in the course of this opinion, Justice Campbell used language which seems to favor the contention of plaintiff here, as follows:

' “The Constitution prohibits interference with persons or' property without due process of law. The proceedings under this statute are all highly penal, and treated expressly as criminal proceedings. The Constitution expressly prohibits the issue of warrants of search or seizure of persons or property except on a sworn showing, which, it has always been held, must be of facts on personal knowledge such as would establish the legal probability of the cause of complaint. If the Legislature could evade this by providing for seizures and searches without legal warrant, the provision would be useless.”

As to the first provision of the Constitution referred to in the discussion, it means no more than that a person shall not be deprived of liberty except by the law of the land. As to the latter provision, namely, section 26 of article 6, which provides that “no warrant to search any place or to seize any person or things shall issue without describing them, nor without, probable cause, supported by oath or affirmation,” we are constrained to say that this section is not susceptible of the construction which, by implication, is placed upon it in the opinion of Mr. Justice Campbell. The same provision was considered by the supreme court of Alabama in the case of Williams v. State, 44 Ala. 43, and a contention that such provision prohibited an arrest without warrant was concisely disposed of as follows:

“The federal and state constitutions both provide that no warrant shall issue to search any place, or to seize any person or thing, without probable cause, supported by oath or affirmation. As a warrant is the process upon which arrests are usually made, and it cannot be issued without oath, the corollary has been drawn that there can be no arrest without a warrant. The popular error on the subject is our excuse for the assertion of the truism that it is. the issue of the warrant, without oath or affirmation, which is forbidden, and not the arrest without a warrant.”

The statute under consideration in that case authorized an arrest by a policeman without a warrant,, on any day and at any time, for any public offense committed, or a. breach of the peace threatened, in his presence.

It may further be said that, if the constitutional provision last quoted is to be construed as might be implied, from the. language employed by Mr.Justice which existed at common law to arrest for offenses committed in the presence of the officer has been too often recognized since the adoption of our Constitution to be open to question. Mr. Justice Campbell uses the further language: it would exclude all arrests without

“ So far as arrests are concerned, a similar principle applies. Under our system we have repeatedly decided, in accordance with constitutional principles as construed everywhere, that no arrest can be made without warrant, except in cases of felony, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception in cases of breaches of the peace has only been allowed by reason of the immediate danger to the safety of the community against crimes of violence, and it was confined, even in such cases, to instances where the violence was committed in the presence of the officer.”

This language embodies a correct statement of the rule of common law, but, if it is sought to extend its application to a case where the Legislature has authorized the arrest without warrant for offenses, other than breaches of the peace, committed in the view of the arresting officer, we do not find the contention supported by authority. In Bishop's Criminal Procedure (volume 1, § 184) it is said:

“The right of arrest by the "officers of the peace is more or less enlarged by statutory regulations in the several states, as well as, of late, in England; or, if not enlarged, defined. A statute enlarging the right, — -that is, in restraint of personal liberty, — is to be strictly construed. But statutei of this sort are generally held to be constitutional.

In Roberts v. State, 14 Mo. 138, the power of the municipality to provide by ordinance for the arrest of vagrants without warrant was sustained. The same ruling was made in the case of Bryan v. Bates, 15 Ill. 87, and Main v. McCarty, 15 Id. 441.

In Massachusetts the legislature has from time to time provided by statute for the arrest of persons guilty of a particular offense, including the offense of selling liquor contrary to law, and the of Fense of drunkenness, and the power of arrest without warrant for the commission of the offense has been repeatedly sustained. See Jones v. Root, 6 Gray, 435; Mason v. Lothrop, 7 Id. 354; Com. v. Cheney, 141 Mass. 102. See, also, Davis v. American Soc., 75 N. Y. 362.

In White v. Kent, 11 Ohio St. 550, a statutory provision which conferred the right upon police officers to .arrest without process for violations of the city ordinances not amounting to breaches of the peace was upheld. It was said:

“ It is evident that many ordinances necessary for good order and general convenience, as well as for the preservation of morals and decency, would be almost nugatory if offenders could only be arrested upon warrant.”

In Davis v. American Soc., supra, it was held that a statute authorizing an arrest, without process, of one guilty of cruelty to animals, was valid.

In O’Connor v. Bucklin, 59 N. H. 589, a statute authorizing an officer, upon view of any crime or breach of the peace or offense against the police of towns, to arrest without warrant, was sustained.

In State v. Cantieny, 34 Minn. 1, a statute of the state authorizing any peace officer to arrest without warrant for a ‘ public offense committed or attempted in his presence ” was construed and upheld, and it was held that an arrest without warrant for such public offense was authorized, even if the offense did not amount to a breach of the peace. See Wahl v. Walton, 30 Minn. 506. See, also, Beville v. State, 16 Tex. App. 70; Wiltse v. Holt, 95 Ind. 469; Taaffe v. Slevin, 11 Mo. App. 507; Smith v. Donelly, 66 Ill. 464; Scircle v. Neeves, 47 Ind. 289; Jacobs v. State, 28 Tex. App. 79; Butolph v. Blust, 41 How. Pr. 481; Ballard v. State, 43 Ohio St. 340; 1 Dill. Mun. Corp. §§ 210, 211, 414, and cited in notes.

It will be seen that the question has arisen in many of our sister states, and the power to authorize arrest on view for offenses not amounting to breaches of the peace has been affirmed. Our attention has been cabled to no case, nor have we’in our research found one, in which the contrary doctrine has been asserted. We think that, while the language in Robison v. Miner may furnish justification for the contention which is made by the plaintiff here, the language which we have referred to, bearing that construction, was not necessary to a determination of the question theye involved, and should not be followed.

£The right to arrest without warrant applies as well to felonies made so by statute after the adoption of the Constitution as to offenses which are felonies at the common law, and this without express legislation providing for such arrest; Firestone v. Rice, 71 Mich. 377. This holding is wholly inconsistent with the claim that what is due process of law must be determined by what arrest without warrant was permissible at the time of the adoption of the Constitution. It is illogical to say that the Legislature may, by defining a particular offense as a felony, or providing for its punishment as such, authorize an arrest without warrant for such offense not committed in the presence of the officer, and yet it may not by statute authorize arrest for a misdemeanor committed in the presence of the officer. The necessity may be as great in the one case as in the other, and the case of Firestone v. Rice illustrates that the rule is not irrevocably or inflexibly fixed by the state of the law as it existed prior to the adoption of the Constitution?! The same provision of the Constitution which protects'iLe person protects the property from invasion without due process of law, and yet statutes which have prescribed what use of property shall constitute a nuisance, and authorized its summary destruction when so used, have been upheld by the courts (Hart v. Mayor, etc., 9 Wend. 571; Meeker v. Van Rensselaer, 15 Id. 397; American Print Works v. Lawrence, 21 N. J. Law, 248), and fully approved by the Federal Supreme Court in the recent case of Lawton v. Steele, 152 U. S. 133. See, also, People v. Brooks, ante, 98.

2. Appellant also contends. that the verdict of the jury finding the defendant guilty should not be allowed to stand because of the inconsistency in the verdict rendered. The actual arrest, which was made by the direction of the defendant Eastman, was made by one Hurley, lieutenant of police. Hurley was joined with defendant Eastman, and upon the trial Eastman was found guilty, and Hurley not guilty. It does not appear whether the plaintiff has rested content with the verdict in favor of Hurley; but, while it may be that the jury rendered an inconsistent verdict, it does not follow that defendant Eastman can take advantage of it. The plaintiff could have nolle prosequied the case as against Hurley at any stage, and have proceeded to try the issue as against Eastman. The plaintiff might, after verdict, have moved for a new trial as against defendant Hurley, and a different result might be. reached on another trial. We think the point should be overruled.

The circuit judge, however, erred in instructing the jury that the Legislature has not the power to authorize an arrest for an offense not amounting to a breach of the peace, without warrant, -if committed in view of the officer.

For this reason, the judgment will be reversed, with costs, and a new trial ordered.

Grant and Hooker, JJ., concurred with Montgomery, J.

McGrath, C. J.

(dissenting). I am not prepared to overrule the doctrine of Robison v. Miner, 68 Mich. 549. The statute under consideration in that case, as in the present case, empowered officers to arrest without .process, and it was with reference to that provision that the language of Mr. Justice Campbell, referred to by my Brother Montgomery, was used, and there is no room for saying that that language was unnecessary to a determination of the question there involved. The evident intent of the Legislature in the provision under consideration was to bring the offense aimed at within the category of breaches of the peace, in order to subject it to the incidents of offenses of that class.

In Altor v. Wayne Co. Auditors, 48 Mich. 76, 97, Mr. Justice Campbell says:

“The Constitution has also provided that no one shall be deprived of liberty without due process of law, and ha's provided that no warrant shall issue except upon oath or affirmation establishing probable cause. It has been settled for centuries, and the doctrine has been recognized here,' that except in cases of reasonable belief of treason or felony, or breach of the peace - committed in presence of an officer, there is no due process of law without a warrant issued by a court or magistrate upon a proper showing or finding.”

As was said by Mr. Justice Cooley in Weimer v. Bunbury, 30 Mich. 201, 213:

“The Constitution makes no attempt to define such process, but assumes that custom and law have already settled what it is. Even in judicial proceedings, we do not ascertain from the Constitution what is lawful process, but we test their action by principles which were before the Constitution, and the benefit of which we assume that the Constitution was intended to perpetuate. * * * The bills of rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments, rather than reformatory, and they assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law, and thus secured against violation. We are, therefore, of necessity, driven to an examination of the previous condition of things, if we would understand the meaning of due process of law, as the Constitution employs the term.”

It may well be asked what principle was perpetuated or secured against abrogation or violation, if what constitutes due process of law is made to depend upon the will of the Legislature as expressed in any one of our many and varied municipal charters. If this constitutional provision be not regarded as a limitation of the power of the Legislature, then the statute is in each instance the test of authority, and the constitutional provision is without office or force. That provision is not necessary to support or protect the statute. The latter is to be construed in subordination to the Constitution, and is to be tested by that instrument. The term “ due process of law ” had a well-settled meaning when the Constitution was adopted, of which the framers of that instrument must be presumed to have had knowledge, and with reference to which it must be presumed that they acted. Subsequent legislation cannot change the meaning or effect of a constitutional provision. A statute may provide for a removal from office, or for the taxation or taking of property, without notice or hearing; but, although such would be a process provided by law, it will not be contended that a removal or a taking thereunder would not be a plain violation of the Constitution. Such statutory process, when tested by principles which were before the Constitution, would be found to lack essential requisites of due process. The Constitution nowhere in express terms speaks of notice or a day in court, but, notwithstanding, these are universally recognized as essential incidents of due process. In Weimer Bunbury, supra, Mr. Justice Cooley subjected the process under consideration in that case to the test of settled rules which antedated the Constitution. Any other test would violate a cai’dinal rule of constitutional interpretation, subject - provisions designed for the protection of persons and property to legislative modification, and make the meaning of a term employed in the fundamental law, which term had, at the time of the adoption of the Constitution, a well-known signification, depend upon the language used in a municipal charter or ordinance.

The facts in many of the cases cited by my Brother Montgomery bring the cases clearly within rules as laid down by this- Court.

In State v. Cantieny, 34 Minn. 1, respondent and his companions were intoxicated, noisy, and disorderly in the night-time, in a public street. An officer undertook to disperse them, and a scuffle ensued, during which an attempt was made to take away from the officer his baton. He undertook to az-rest one of them, and was shot. Not only were the' parties guilty of a distuz-bance of public tranquillity, but of a bz’each of peace against the officer.

In Beville v. State, 16 Tex. App. 70, the party was intoxicated in a public place, and in the act of committing a breach of the peace.

In Wiltse v. Holt, 95 Ind. 469, the officer, having knowledge that the appellee had previously threatened the life of one Bogart, and hearing a .disturbance in Bogart’s office, and seeing the appellee emerge from, the office in an intoxicated condition, wild with excitement and anger, arrested him.

In Bryan v. Bates, 15 Ill. 87, it was held that the powers of cities and their ministerial officers were not changed by the new constitution. The arrest was of a person who was drunk, and was disturbing the peace by violent, tumultuous language, calculated to provoke a breach of the peace.

In Scircle v. Neeves, 47 Ind. 289, the party arrested was in the public streets in a state of gross intoxication, unable to walk or stand without support, and when found was prostrated upon the sidewalk, and was of course an actual obstruction to travel, a disgusting and offensive spectacle, and the situation was calculated to attract a curious crowd. Com. v. Cheney, 141 Mass. 102, was a case of like character.

In O’Connor v. Bucklin, 59 N. H. 589, the arrest was made under a statute providing that any officer, upon view of any crime or breach of the peace, or offense against the police, might arrest without warrant; but it does not appear just what the offense charged was. In Wiltse v. Holt, 95 Ind. 469, Wahl v. Walton, 30 Minn. 506, and Taaffe v. Slevin, 11 Mo. App. 507, there had been an actual breach of the peace.

Bouvier defines a breach of the peace as a violation of public order; an act of public indecorum. In People v. Johnson, 86 Mich. 175, a breach of the peace was defined as a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace; and it was held that to be intoxicated and yelling on the public streets, in such a manner as to disturb the good order and tranquillity of the village, is an act of open violence, and a breach of the peace, which, if committed in the presence of an officer, will justify an arrest without warrant. In Davis v. Burgess, 54 Mich. 514, it was held, that the use of grossly indecent and profane language towards another upon the public street, and in the presence of others, is a breach of the peace.

In White v. Kent, 11 Ohio St. 550, the ordinance prohibited sales at auction in the public streets. The court held that the care, supervision, and control of the streets were committed to the municipality; that it was the duty of the city to secure to the public the unobstructed use of the streets, and thus promote the order, comfort, and convenience of the inhabitants; and that whatever unnecessarily and unreasonably interfered with the primary and appropriate use of the street was a nuiaance.

The cases of Jones v. Root, 6 Gray, 435, and Mason v. Lothrop, 7 Id. 354, involve the precise question which was disposed of by this Court in Robison v. Miner, supra.

Roberts v. State, 14 Mo. 138, was an arrest for vagrancy, as defined by a municipal ordinance. But that case is clearly opposed to Way’s Case, 41 Mich. 299. In that case, vagrancy was distinguished from disorderly conduct and breaches of the peace, and it was held that its statutory definition could not be enlarged by municipal ordinance. And, with respect to the main question, Mr.

Justice Campbell says:

“It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases 'where the public security requires it; and this has only been recogn’ized in felony, and in breaches of the peace committed in presence of the officer. Quinn v. Heisel, 40 Mich. 576; Drennan v. People, 10 Id. 169. It could not have been contemplated — inasmuch as we are bound to suppose the Legislature intended .to respect constitutional safeguards— that the station-house sessions would have occasion to deal with many cases of misdemeanors, nor with any when an arrest could be safely postponed. The occasions which would justify arrest without process must be very rare indeed in cases of vagrancy; and, in a city no larger than Detroit, persons charged with disorderly conduct can very generally be dealt with more legally and justly ip. the regular way, inasmuch as very much of it involves no immediate danger to public or private security.”

It seems to me that what is meant by the term “due process of law,” as employed in the Constitution, is not only well settled by this Court, but that its signification has been arrived at by the proper recognition of a well-recognized rule of constitutional interpretation.

Long, J., concurred with McGrath, C. J.

       Charter, 1891, p. 60; Local Acts of 1885, p. 88.


author: Long, J.

text:
    Stephen Baldwin v. George S. Hosmer, Circuit Judge of Wayne County.

      Receivers — Garnishment proceedings — Injunction—Mandamus.
    Where after the appointment in a foreign state of a receiver of the property of a benefit association organized under the laws t thereof, but prior to an ancillary receivership in this State, garnishment proceedings are instituted in aid of suits commenced against the association upon matured benefit certificates issued to members in this State, the plaintiffs have a right to be heard in such proceedings, and an injunction to restrain the prosecution of the same is properly refused; but such local receiver is also entitled to be heard therein.

      Mandamus.

    Argued April 3, 1894.
    Denied July 10, 1894.
    Relator applied for mandamus to compel respondent to issue an injunction restraining the prosecution of certain garnishment proceedings. The facts are stated in the opinion, and in Baldwin v. Circuit Judge, ante, 119.

      G. B. Warner, for relator.

      W. I. Robinson and J. W. Robbins, for respondent.

       For cases bearing upon the question of the dissolution of injunctions by mandamus, see Insurance Co. v. Circuit Judge, 100 Mich. 606, and note.

   Long, J.

The Supreme Sitting of the Order of the Iron Hall was organized at the city of Indianapolis, Ind., in July, 1881. It is a charitable, benevolent, and insurance organization. It was organized, among other things, for the purpose of establishing a benefit fund for its members, who might receive a certain amount at the end of a certain period, by compliance with its rules and regulations, and also to establish a life fund, which was to be payable at the death of a member. After its organization, it solicited membership throughout the various states of the Union. Its business was carried on through the instrumentalities of so-called local, subordinate, or sisterhood branches, which were responsible to the main organization, and which subordinate branches, by the rules of the main organization, were required to consist of not less than 15 members, who should possess the powers and privileges of a local branch, working under the jurisdiction of the Supreme Sitting, by virtue of a charter issued by that body.

There were about 1,190 local branches on July 29, 1892, of which number about 40 were established in this State. These branches had at that time accumulated a large amount of money; in the city of Detroit alone, from $300 to $14,000 each. The Supreme Sitting became insolvent, and upon a bill filed July 29, 1892, in the superior court of Marion county, Ind., James F. Failey was, on August ,23 of that year, appointed receiver of all the property of the Supreme Sitting, both within and without the state of 'Indiana. He duly qualified, and entered upon the performance of such duties. December 2, 1893, a final decree was entered in that court adjudging the Supreme Sitting insolvent; that it was unable further to carry on its business; that its assets and property should be reduced to .money, and paid and applied upon its debts and outstanding obligations; and in which decree Failey was continued and confirmed as permanent receiver.

On September 27, 1892, .a bill was filed in the Wayne circuit court, in chancery, against the Supreme Sitting, praying for a receiver in aid of and ancillary to the administration and receivership of the property of the corporation appointed by the Indiana court, and on October 1, 1892, Stephen Baldwin, the petitioner in this cause, was so appointed and duly qualified.

It appears that Lewis Cohen, a member of the order, and claiming to be the owner of a certain matured certificate of membership issued, by the corporation on July 29, 1885, commenced suit in assumpsit in the Wayne circuit court upon such certificate on August 23, 1892, and caused a writ of garnishment to be served on August 26, 1892, among others, upon the Dime Savings Bank, the Wayne County Savings Bank, and Frederick J. Kirts, accountant of Local Branch No. 5 of said order. The garnishee defendants appeared and made disclosures, the Dime Savings Bank of $8,799.65, the Wayne County Savings Bank of $468.98, and Frederick J. Kirts of, $1,000, on hand, belonging to the corporation. Other persons claiming to be creditors of the corporation also instituted-separate suits in said circuit court for Wayne county against it, and writs of garnishment were also issued in said suits against other banks and individuals. In these suits pleas of the general issue were filed, and the causes now stand for hearing.

A petition was filed by the receiver, Stephen Baldwin, in the 'proceedings wherein he was appointed receiver, setting up the proceedings in the Indiana court, as well as the proceedings in the Wayne circuit court, in chancery, together with the facts as to the commencement of suits by Cohen and others, and the issuing of the several writs o°f garnishment and the disclosures thereunder, and also that he, as receiver, is about to commence suits against these garnishee defendants and others to compel them to surrender and pay over to him all the property, moneys, and effects of the corporation, to the end that the proceeds may be distributed in accordance with the decree of the Indiana court, and praying that Mr. Cohen may be perpetually restrained and enjoined from further prosecuting his suit, and that the several writs of garnishment may be vacated and set aside. To this petition Mr. Cohen answered, substantially admitting the facts, but claiming that he has a legal and equitable right to the money so garnished, or sufficient to pay his claim, as his certificate of membership was audited by the treasurer of the corporation, and is long past due, the treasurer having repeatedly promised to pay the same, and that he has a vested right in the moneys so garnished. He also shows that he has complied with all the requirements of the corporation. The questions raised by the petition and answer came on to be heard by and before the respondent, and an order was entered denying the relief prayed. Petition is now filed here asking mandamus to compel the respondent to set aside the order so made, and to enter an order setting aside the writs of garnishment, and to enjoin the prosecution of the suit by Cohen. The answer admits the facts stated in the petition, and the learned circuit judge returns that no cause was shown before him why the relief prayed should be granted.

The petition is.for the aid of the writ of mandamus to compel the respondeat to issue a writ of injunction. The power of this Court to issue a writ of mandamus for that purpose .is discussed in Detroit & Birmingham Plank-Road Co. v. Circuit Judge, 98 Mich. 141, and the writ was there denied. In a lane unreported case of City of Corunna v. Circuit Judge, the writ to compel the court to grant an injunction was also denied. But we think the plaintiffs in the garnishment cases have the right to be heard in the garnishment proceedings. They claim a preference by the service of such process. The receiver has the undoubted right to be heard in those cases, and protect the fund; but we think the court very properly refused the aid of the injunction to him to prevent the trial of the causes so commenced. See Baldwin v. Circuit Judge, ante, 119.

The writ will be denied.

The other Justices concurred.

       Decided April 3, 1894.


author: Hooker, J.

text:
    John R. O’Neil v. The Duluth, South Shore & Atlantic Railway Company.

      Negligence — Railroad companies — Defective station Pleading. premises —
    1. The declaration in an action on the case must contain a specific and unequivocal statement of the essential facts constituting the cause of action.
    2. Plaintiff was injured in attempting to cross defendant’s tracks while on his way to its station from the business portion of an adjacent village. The declaration averred that the defendant, at the time of the accident, possessed and controlled at said station not only its main track, but certain side tracks, upon and across which at the point where plaintiff was injured all persons lawfully being at said station, and having occasion to go to the principal business portion of the village, •or therefrom to said station, were used and accustomed, and were authorized by the defendant, to pass and repass, and that the plaintiff, while on his way to said station, and while lawfully upon the premises of the defendant, with its permission and by its invitation, stumbled and fell over one of the rails in its track, and received the injury complained of. And, in affirming a judgment sustaining a demurrer to the declaration, it is held:
    a — That there is nothing in the allegation that, at the point where plaintiff was injured, that portion of the public having occasion to go to and from the station, and a part of the business portion of the village, were accustomed and authorized to go, to show that the defendant ever set apart this point as a place of crossing for its patrons, or ever invited any one to go there, unless it is to be inferred from the statement that such persons were authorized and accustomed to do so; that it mentions no public street or way, and simply describes a point upon defendant’s land as opposite a drug store.
    b — That the statement that plaintiff was upon the premises of the defendant by its permission and invitation is far from saying that it invited or induced plaintiff to enter and cross at that point; that the inference is strong that the point mentioned is not the only or usual way provided by the defendant for the ingress and egress of its patrons, whom it invites, or of persons whom it permits, to enter its grounds, but that people have for their own convenience gone “across lots” to and from the station at the point opposite the drug store, and that the defendant has not prohibited and prevented it; and that to hold that such use would raise an obligation to plank its right of way alongside of and between its tracks would be to require it to build sidewalks, or their equivalent, at any point where a sufficient number of the people chose to take a short cut across its grounds.
    Error to Schoolcraft. (Steere, J.)
    Argued October 13, 1893, and reargued April 4, 1894.
    Decided July 10, 1894.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The facts áre stated in the opinion.

      Henry A. Chaney, for appellant.

      J. W. McMahon (A. B. BIdredge, of counsel), for defendant.
   Hooker, J.

The defendant has a depot separated from a part of the business portion of the village of Seney by its tracks. Seney is a village of but á few hundred in-, habitants, in the county of Schoolcraft, — a county which is but sparsely inhabited. The action is brought by plaintiff, who attempted to cross the tracks of defendant, and, stumbling over one rail, fell, and was injured upon another. He bases his claim for damages upon the alleged duty upon the part of defendant to lay plank between and by the sides of the rails of its tracks. The cause is here upon demurrer, and the only question is whether the declaration states a cause of action.

The declaration states that defendant possessed and controlled a public railroad station, and at said station the main and side tracks in question, “across which said side tracks and main track, at the point where said plaintiff was injured, * * * all persons lawfully being at said station, and having occasion to go thence to the principal business portion of the village of Seney, or therefrom to said station, were nsed and accustomed, and were authorized by the defendant, to pass and repass.” It then alleges the duty of planking between and alongside of the rails, and the negligent omission thereof. It states further that on the evening of December 17, 1891, the plaintiff was expecting to receive a letter or letters which he supposed had been directed to him at Marquette, and for which he had telegraphed a request that they be sent to him at Seney by the conductor of a train upon said railroad, to receive which letter or letters the defendant had authorized plaintiff to go and pass and repass across, over, and upon its said tracks at the point aforesaid, to wit, opposite and in front of a certain drug store kept by one Scott, the-same being a regular, usual, and accustomed way for hint to go and pass and repass for this purpose, of which fact defendant had notice; and that said plaintiff was intending, in case he received no letters, to go to the telegraph office, which was in the station or depot building of said defendant, for which purpose, likewise, said defendant had as aforesaid authorized him to cross said tracks at said point, there being the regular and accustomed place for crossing for such .purposes. The declaration further avers .that the plaintiff, while on his way as aforesaid to the train at said station, and, in case he received no letters, then to said telegraph office, “and while lawfully upon the premises of said defendant, with its permission and by its invitation,” etc., “did stumble and fall over one of the rails,” etc.

It will be noticed from the above extracts, which constitute substantially the important averments of the declaration, that, at the point where plaintiff was injured, that portion of the j)ublic having occasion to go to and from the station, and a part of the business portion of Seney, were accustomed and authorized to go. There is nothing in this allegation to show that the defendant ever set apart this point as a place of crossing for its patrons* or ever invited any one to go there, unless it is to be inferred from the statement that such persons were authorized and accustomed to do so. It mentions no public street or way, and simply describes a point upon defendant’s land as “ opposite a drug store.” Again, the statement that plaintiff was upon the premises of the defendant by defendant’s permission and invitation is far from saying that it invited or induced him to enter and cross at that point. The inference is strong that the point mentioned is not the only or usual way provided by defendant for the ingress and egress of its patrons, whom it invites, or persons whom it permits, to enter its grounds, but that people have for their own convenience gone “across lots” to and from the station at the point opposite the drugstore, and that the defendant has not prohibited and prevented it. To hold that such use would raise an obligation to plank its right of way would be to require it to 'build sidewalks, or their equivalent, at any point where a ¡sufficient number of the people chose to take a short cut .across its grounds.

It is true, as contended by counsel, that a declaration is not required to set up the evidence by which the cause of •action is to be proved, but an action upon the case does require a specific and unequivocal statement of the essential facts constituting the cause of action. We must conclude ‘that the pleader did not state that the defendant had provided this place as one of ingress and egress because it had not done so; that he failed to state that the plaintiff was invited to enter and cross at that point because it would not have been a true statement; that he did not •state that it was the usual way for the public to enter .and leave such premises because it was not, but, as he •says, only of those who had occasion to go to and come from the principal part of the business portion of Seney.

Furthermore, tbe declaration shows that- the plaintiff was in the habit of crossing at this point, and therefore that he knew that there was no planking between the rails. There is no showing that the premises were out of repair, and we are of the opinion that under the circumstances of this case it should, not be left to a jury to determine whether a railroad company should build walks in the rural hamlets along its line at all points where some considerable portion of the public may find it convenient to establish a footpath across its grounds. See Sturgis v. Railway Co., 72 Mich. 622. The declaration does not unequivocally state that the defendant ever invited or allured the plaintiff upon such portion of the grounds.

The judgment should be affirmed.

McGrath, C. J., Long and Grant, JJ., concurred with Hooker, J. Montgomery, J., concurred in the result.


text:
    Harvey W. Rugg v. George S. Bassett.

      Mechanic's lien — Pleading—Amendment—Terms.
    1. Section 10 of Act No. 179, Laws of 1891, which provides that proceedings to enforce a mechanic’s lien under said act shall be by bill in chancery under oath, and that amendments may be made to such bill at any time before final order, does not divest the court of the power to impose terms upon granting an application, made upon the day assigned for hearing and before any testimony has been taken, for leave to amend a bill filed against a husband by making his wife, who is the owner of the land on which stands the building upon which the labor was performed, a co-defendant.
    2. The matter of terms in such a case is within the discretion of ■ the trial court, which discretion is held not to have been abused by the making of an order requiring, as a condition to such amendment, that within' 20 days the complainant file a bond for security for costs in a penalty of $200, and pay a solicitor’s fee of $15, and witnesses’ fees to be taxed, and in the event of his failure to file said bond and amended bill, and otherwise comply with said order, that the bill be dismissed.
    Appeal from Berrien. (O’Hara, J.)
    Submitted on briefs June 20, 1894.
    Decided July 10, 1894.
    Bill to enforce a mechanic’s lien. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      George W. Bridgman, for complainant. .

      Lawrence O. Fyfe> and Charles N. Bears, for defendant.
   McGrath, C. J.

Complainant filed a bill to enforce a builder’s lien under a contract made with defendant. An answer was filed, and the matter came on to be heard. Complainant moved the court for leave to amend his bill by making defendant’s wife, who, it was conceded, was the owner of the lot upon which the building was constructed, a party. Defendant objected, and insisted upon terms, including security for costs. The court thereupon made an order that complainant have leave, within 20 days, to file an amended bill, and that, within a like time, he file security for costs in a given amount, and pay to defendant a solicitor’s fee of $15, and witnesses’ fees to be taxed, and in the event of the failure to file said bond and amended bill, and pay said solicitor’s, fee and costs, that the bill be dismissed. The amended bill was not filed, nor were the costs paid, which being made to appear, the bill was dismissed.

The matter of terms in such cases is within the discretion of the trial court, and we are unable to say upon this record that such discretion has been abused. Complainant made no showing as to his inability to comply with the order.

Nor do we think that section 10 of Act No. 179, Laws of 1891, under which said proceeding was instituted, divested the court of the power to impose terms upon granting an application for leave to make such an amendment at the time when applied for.

The decree dismissing the bill is affirmed, with costs to defendant,

The- other Justices concurred.


text:
    John Hensel v. Margaret Maas.
    [See 94 Mich. 563.]

      Principal and agent — Extent of authority — Instructions to jury.

    1. Where application is made to a land-owner by a person known to her to be a real-estate broker, or who so represents himself at the time, to have the land placed in his hands for sale, and the land-owner refers the broker to her son to act for her with respect to, such employment, she will be liable to the broker upon the contract made with the son regarding such employment.
    2. If, however, the applicant was not known to the land-owner - prior to the application, and did not represent himself as a real-estate broker, but, instead, held himself out as a would-be purchaser of the land, and thereupon the land-owner referred him to her son for the terms and conditions of the sale, such a holding out would not justify the broker in assuming that the son had authority to enter into a contract for his mother with him to find a purchaser of the land.
    3. The charge is held to have been well calculated to mislead the jury, in that it was without qualification as to the reference of the matter of the sale of the land to the son, which fact was conceded, but the important issue was as to the character and effect of such reference.
    Error to "Wayne. (Donovan, J.)
    Argued June 20, 1894.
    Decided July 10, 1894.

      Assumpsit. Defendant brings error.
    Reversed.
    The facts are stated in the opinion, and in 94 Mich. 563.

      Charles C. Stewart, for appellant.

      Charles Flowers, for plaintiff.
   McGrath, C. J.

This case is here for the second time. 94 Mich. 563. Defendant appeals.

It -will be remembered that the suit is brought to recover a commission for the sale of certain real estate. The principal question, upon which there is a conflict in the evidence, is as to whether there was. a holding out to the plaintiff of Joseph Maas as having authority to make the alleged contract.

Plaintiff testifies that in the spring of 1891 he called upon defendant, at her residence, and said to her that—

"I heard that she wanted to sell her land. She told me to go to her son Joe, and whatever he does was right. * * * I went in, and told her I heard she wanted to sell the land. She referred me to her son. * * * I went with Mr. Maedje to her, and asked her if she wanted to sell the property, and she said 'Yes/ but she had given it to her son, Joseph Maas. She had nothing further to do with it.-”

Maedje testifies that—

"Mr. Hensel introduced himself to her, and asked her whether she wanted to sell the property; that he was looking for some property, — he had some buyers for some. She said, well, they concluded to sell, but she could not attend to the selling, and the making out of papers, and so forth. She did not understand that, and she put everything in the hands of her son, Joseph P. Maas, on Gratiot avenue, and anything we would do with him would be satisfactory,
in every sense. She referred right direct to him, and told us to go there to hipi, and anything that he did would be satisfactory to her.”

These parties testify that they went at once to see Joseph Maas, and explained to him that defendant had referred them to him. He, however, told them that he had concluded not to sell for the present, but, “whenever I do conclude to sell, why, you folks will have the first chance to sell it. I will let you know.” Nothing further occurred until six months later, when plaintiff met Joseph Maas in the street, and asked about fhe property, when it is alleged that Joseph Maas stated to plaintiff that the price of the property was $16,000, and. if plaintiff procured a purchaser he (plaintiff) could have what he could get over and above that sum as his commission.

The defendant, however, testifies that she met plaintiff at her house in May, 1891; that she had not known him prior to that time; that Hensel and Maedje asked her if the land was for sale, and she said “Tes;” that they asked her the price, and she said “$20,000;” that they said that was too much, — that they wanted to buy it, but they thought the price was too high; that “they spoke about buying it, and asked about the size of the property, and spoke about contracts, and so I referred them to Joseph Maas.”

It is clear that if plaintiff was known to defendant as a real-estate broker, or so represented himself to defendant, and applied to her to have the property placed in his hands, and she referred him to her son to act for her with respect to such employment, the defendant is liable to plaintiff upon the contract. If, however, plaintiff was not known to the defendant prior to the application to her, and did not represent himself to her as a broker, but, instead, held himself out as a would-be purchaser, and thereupon defendant referred him to her son for the terms and conditions of the sale, such a holding out would not justify plaintiff in assuming that her son had authority to enter into a contract for her with plaintiff to find a purchaser. The authority suggested by the holding out in such case would be special, and not general. The authority to make the terms and conditions of a sale of the property would not include the authority to make a contract with a third party for a large commission for finding a purchaser.

The trial court evidently introduced into his charge to the jury several requests submitted by both parties, and 'there is an incongruity in the charge, as a whole, which was calculated to mislead the jury. The court said:

“If you find from the evidence that Mrs. Maas referred the plaintiff to her son, and said that the son could act for her in the matter, then she thereby made her son her agent in that matter, and the son could bind her until that authority had been revoked. ******
' “If Joseph Maas gave authority to Hensel, after this reference to him, to sell the land for $16,000, during the term 'of his agency, or while that agency continued to Joseph Maas, if you find such, and told him that all he could get over and above that sum would be his, the defendant, Mrs. Maas, would be bound by that contract.
“I charge you, on the other hand, however, that if the defendant ever gave her son authority to sell the property, and gave him the price at which he could sell it, that would not authorize him to bind her by any contract of service with other parties. *******
“Legally, when she referred the matter to her son, if she had so placed the matter in his hands, to act for her, she would be bound by that action. * * * * *
“Now, if Mrs. Maas did refer-to Joseph Maas, then I charge you that she was liable for the contracts made in connection with that particular property, and the sale of it, with Mr. Hensel. ”

It was conceded that defendant did refer plaintiff to her son. The important issue in the case was the character and effect of the holding out. Did defendant refer plaintiff to her son as having authority to make the terms and conditions of a sale to him of the property, or did plaintiff represent himself as a broker seeking a contract to find a purchaser? The trial court’s instructions were without qualification in this respect, and were erroneous.

The judgment is reversed, and a new trial granted.

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