author: Moore, C. J. Ostrander, J.

text:
    GORMAN v. PATRICK HIRSCH CO.
    1. Appeal and Error — Equity—Parties—Railroads.
    In equitable proceedings by creditors of a railroad corporation for receivership, sale of the corporate property and distribution of the proceeds, after a sale under order of the court, the defendant railroad company had no interest in the proceeds, and its solicitor, having in writing consented as counsel of the receivers to the entry of the decree of distribution, making no objection to it in behalf of defendant, the latter could not appeal. Ostrander and McAlvay, JJ., dissenting.
    2. Same.
    The allowance of solicitors’ and receivers’ fees'by the trial court was discretionary and will not be reversed on appeal unless the discretion was abused.
    3. Same — Saving Questions eor Review.
    Objections not brought to the attention of the lower court will not be considered.
    Appeal from Monroe; Lockwood, J.
    Submitted November 7, 1911.
    (Docket No. 61.)
    Decided December 17, 1912.
    Rehearing denied November 5, 1913.

      Bill by Frank Gorman and others against the Patrick Hirsch Company, the Toledo, Ann Arbor & Detroit Railroad Company and others for the enforcement of mechanics’ liens and other equitable relief. On petition of James L. Hosier and other creditors for distribution of funds derived from a sale under the order of the court a decree of distribution was entered. Defendant railroad company, certain intervening creditors and complainants appeal.
    Affirmed.

      Ralph S. Holbrook, Claude R. Banker, and Smith, Baldwin & Alexander, for complainants.

      E. R. Gilday, for defendant Toledo, Ann Arbor & Detroit Railroad Co.
   Moore, C. J.

The record in this case covers 400 printed pages. The case is elaborately briefed. We think the following statement of facts, taken, chiefly from the brief of the solicitors for the complainants, is justified by the record. We quote:

“This statement is largely taken from the opinion of Judge Lockwood. Prior to April 16, 1904, the Toledo & Northwestern Railway Company had been incorporated under the laws of the State of Ohio to construct and operate a railroad from the city of Toledo to the State line between the States of Ohio and Michigan, and the Michigan Traction Company had been organized under the laws of the State of Michigan to construct and operate a railroad from_ the State line between the States of Ohio and Michigan to the city of Arm Arbor. Some work had been done in preliminary surveys and in acquiring rights of way between these two cities.
“On the 16th day of April, 1904, a contract was entered into between the Toledo & Northwestern Railway Company and Patrick Hirsch wherein it was provided that the two railway companies above mentioned should be consolidated in a corporation to be known as the Toledo, Ann Arbor & Detroit Railway Company, which consolidated company should have a capital stock of $1,500,000, and should issue bonds to the amount of $1,500,000, secured by a first mortgage on its property; that this contract should be assumed by the consolidated company, and Patrick Hirsch agreed in said contract to construct and complete a railroad from the city of Toledo in the State of Ohio to the city of Ann Arbor in the State of Michigan for said consolidated company, to equip the railroad with all necessary power houses, electrical machinery, substations, passenger and freight depots, and to do everything to make a complete railroad, for the sum of $2,765,000, to be paid with the stock of the consolidated company to the extent of $1,490,000 par value and $1,500,000 of its first mortgage bonds at 85 per cent., the same being the entire stock and bond issue of the consolidated company except 10 shares of the capital stock.
“This contract provided that, immediately upon the execution of the mortgage by the consolidated company, the trustee therein should deliver to Patrick Hirsch $240,000 face value of the bonds and contemporaneously $690,000 par value of the capital stock of the company, which were to be received by the contractor as part payment of the contract price, and the balance of the bonds and stocks, it was provided, should immediately be delivered to John H. Clauss, as trustee. It was further provided that, upon the commencement of the work by the contractor, Clauss, as trustee, should deliver to him $210,000 of the bonds and $133,000 par value of the said stock, and that each 30 days thereafter the trustee should, upon the receipt of a certificate of an engineer of the consolidated company, deliver $85,000 face value of the bonds and $50,000 par value of the stock, and upon the completion of the work should deliver the balance of the stocks and bonds to the contractor. And it was further provided that said Clauss was fully empowered, in his discretion, to hypothecate all of the bonds and stock held by him in escrow, as he might deem it wise, as collateral security for the notes of the contractor or for the payment of loans evidenced by such notes. It provided that the contractor should pay for all incidental expenses, legal counsel, engineering, and every other expense connected with the building and completing and equipping of said . railroad. This contract was, on the 26th day of May, 1904, assigned by Patrick Hirsch to Patrick Hirsch Company, a corporation, in consideration of the issuing to him of all of its common stock.
“The consolidated company, known as the Toledo, Ann Arbor & Detroit Railroad Company, was organized as provided in the contract, and Patrick Hirsch Company, a corporation under the laws of the State of Delaware, was also organized.
«“The persons who were promoting this railroad, and who became stockholders of the consolidated company, were also stockholders and officers of the Patrick Hirsch Company. Mr. Clauss, who by this contráct is made trustee of the bonds and stocks of the consolidated company, became president of the Toledo, Ann Arbor & Detroit Railroad Company and treasurer of the Patrick Hirsch Company. Many of the directors of the railroad company were directors of the Patrick Hirsch Company; in fact, there were no shares of stock in the railroad company except 10 that were originally subscribed for except the subscription was made through the intermediary, Patrick Hirsch Company.
“In this original contract for the construction of the road, mention is frequently made of Lawrence Barnum & Co. The trustee in the mortgage is to be satisfactory to Lawrence Barnum & Co.; the form and terms of the stock and bonds is also to be satisfactory to Lawrence Barnum & Co.; the first of $240,000 of the bonds and $690,000 of the stock are to be. delivered upon the order of thq consolidated company in such form as shall be approved by counsel for Lawrence Barnum .& Co. Pursuant to this contract, the Toledo, Ann Arbor & Detroit Railroad Company on July 1, 1904, made and executed 1,500 bonds of the denomination- of $1,000 each, and a mortgage upon all its property and all the property to be acquired thereafter by it to secure the payment of said bonds, said mortgage running to the Trust Company of America, as trustee, and all of these bonds and all but 10 shares of the stock of the railroad company were placed in the hands of J. H. Clauss.
“As a further preliminary, Patrick Hirsch Company entered into two contracts with Lawrence Barnum & Co. These contracts were simultaneously made and are dated June 1, 1904. One of these contracts, marked Exhibit No. 2, is an agreement on the part of Lawrence Barnum & Co. to purchase 1,113 of the bonds of the Toledo, Ann Arbor & Detroit Railroad Company at 85 cents on a dollar at any time within 90 days after the completion of the railroad in accordance with the plans and specifications, and also providing that the road shall be fully completed within two years from the date of the contract. The other of these contracts, marked Exhibit No. 3, in addition to the discount of 15 per cent, on the face of the bonds provides for the payment of $13,912.50 in cash to Lawrence Barnum & Co. each 90 days from the date of the contract to the completion of the road, and also payment of $40,000 in cash and $147,000 of the bonds and $100,000 of the stock of the railroad company; in other words, Lawrence Barnum & Co. was to receive, in addition to $100,000 of the stock, compensation and discount upon the bonds amounting to $443,200 on the basis that the construction would continue two years. The first of these contracts was shown to the various persons desiring to make subcontracts, but the second was not disclosed. The amount of money actually paid to Lawrence Barnum & Co. on account of this underwriting agreement was $90,426.62. As a further preliminary step, a so-called unit agreement, Exhibit 10, was made, wherein the organization of these railroad companies was recited, and the proposed consolidation and the issuance of the bonds and making of the mortgage was also recited, and it was further recited that John H. Clauss is in a position to acquire $240,000 of the first mortgage bonds to be issued by the said consolidated company when and as soon as the same are issued for the sum of $204,000 in cash. It was agreed between the subscribers to said agreement that the said bonds and stocks should be divided into 20 blocks or units, each to consist of $12,000 of said bonds and $34,500 of said capital stock, and that the subscription price of each of said blocks or units of bonds and stocks should be the sum of $10,200 in cash to be paid to said Clauss when called for under the terms of the agreement. The subscribers to this agreement subscribed for most all of said units, and it appears from the testimony in this case that these subscribers, each of them, paid $10,200 for each unit, and received the bonds and stocks as above provided. These bonds and stocks were to be turned over to Patrick Hirsch immediately upon the execution of said mortgage by the terms of his contract with the railroad company. The money received upon this unit agreement went into the hands of Patrick Hirsch Company.
“Patrick Hirsch Company then sublet the construction of this railroad to various parties and made contracts with other parties for material to be used in the construction, among which contracts was a contract with Gorman Bros., the original complainants in this cause,’ for the construction of the power house at tho village of Petersburg; and another with the Lamb Wire Fence Company for constructing fences along the right of way of the railroad; and another with J. L. Hosier &.Co. for ties and materials to be used in said railroad. In all these contracts it was provided that Patrick Hirsch Company should pay 50 per cent, or thereabouts in cash and give its notes, secured by the first mortgage bonds of the consolidated company, for the other 50 per cent.
“The right of way was acquired by Mr. Burgoon, employed by the Hirsch Company, and title taken to the Toledo, Ann Arbor & Detroit Railroad Company. Nearly all of it was acquired between the city of Toledo and the city of Ann Arbor. The grading was largely done between these two points. Ties and rails were laid from Petersburg south a distance of about 18 miles and extending about 2% miles into the State of Ohio. The various subcontractors and material-men had accumulated large quantities of material along the line .of the road, more especially at the village of Petersburg, for the construction of the railroad. Most of the actual work of construction was done between the 1st of June and the 1st of December, 1905. At this latter date, all work and furnishing of materials ceased because of the failure of Patrick Hirsch Company to make payments according to its contracts with the various parties.
“Later receivers were appointed in this case for the Toledo, Ann Arbor &'Detroit Railroad Company in the State of Michigan, and the same persons were appointed, by the court in Ohio, receivers of the railroad company in the State of Ohio, and a receiver was appointed, by the court in Ohio, for Patrick Hirsch Company.
“After the suspension of work, a number of suits were brought by the subcontractors and materialmen against Patrick Hirsch Company; several of them in replevin for material on the ground and some of it in the track, others in attachment, until finally the bill by Gorman Bros, was filed and all parties, including the railroad company, claiming any right to or liens upon the railroad property, or the materials that had been used in the making of the track so far as it was constructed, were before the court in this case.
“On August 24, 1906, the original bill of complaint in this cause was filed by Frank Gorman, James Gorman, and Thomas Gorman, comprising the copartnership of Gorman Bros., against Patrick Hirsch Company, the Toledo, Ann Arbor & Detroit Railroad Company, and the Trust Company of America. The purpose of the original bill was for the appointment of a receiver for the railroad company and to enforce a mechanic’s lien against certain property in the village of Petersburg upon which the complainants had built and partially completed a power house under their contract with the Patrick Hirsch Company, which latter company had a contract with the Toledo, Ann Arbor & Detroit Railroad Company to construct the railroad from Toledo to Ann Arbor.
“The Trust Company of America filed its answer and a cross-bill in said cause, in which cross-bill the said Trust Company asked to have foreclosed the mortgage given by the Toledo, Ann Arbor & Detroit Railroad Company to it as trustee, covering all of the property of said railroad company to secure the bonds of said railroad company to the amount of $1,500,000. And in said cross-bill there were made defendants, in addition to the persons already made parties, the Lamb Wire Fence Company, the Fidelity Construction Company, and others.
“On March 19, 1907, the answer of the Toledo, Ann Arbor & Detroit Railroad Company and of Willis Baldwin and I. H. Burgoon, who had theretofore been appointed receivers of said railroad company, to the original bill of complaint was filed. The default of Patrick Hirsch Company for . want of appearance was entered by the complainants. On November 29, 1907, the Fidelity Construction Company filed its answer to the cross-bill of the Trust Company. On December 7, 1907, James L. Hosier & Co. filed its answer to the cross-bill of the Trust Company, in the nature of a cross-bill, asking that it be given a lien upon the railroad materials furnished by it under a contract with Patrick Hirsch Company and used in the construction of the railroad. On December 14, 1907, the Lamb Wire Fence Company filed its answer in the nature of a cross-bill to the cross-bill of the Trust Company, and asked that it be given a lien on certain property which it had attached in a suit against Patrick Hirsch Company prior to the lien of the mortgage of the Trust Company of America. To the answers and cross-bills of the Toledo, Ann Arbor & Detroit Railroad Company and its receivers and of the Lamb Wire Fence Company and of James L. Hosier & Co., the Trust Company of America filed separate answers. The default of Patrick Hirsch Company, for want of appearance and answer to the cross-bill of the Trust Company, was entered by the Trust Company of America.
“On these several issues a hearing was had before Judge Lockwood, and on July 1, 1908, a final decree was entered finding that complainants, Gorman Bros., and the defendants, the Lamb Wire Fence Company and James L. Hosier and Robert C. Bowlus, had no lien against the property in question; that the mortgage given by the railroad company to the Trust Company of America was a good and valid mortgage and a first lien on all the property of the railroad company, and ordered a sale of the railroad and a distribution of the fund realized to the several bondholders as found in the decree, with the following provisions as to the unit holders. The court further finds that 145 of the remaining bonds secured by the said mortgage aforesaid are valid obligations of said railroad company, and were, at the time of the hearing of this cause, held by the parties set forth in the following schedule to the amounts and of the number set forth opposite their respective .names, to wit:
Schedule B.
Name. Nos. of Bonds. Total.
12 J. B. Foraker................. 1 to 12 inclusive
1 J. M. Griffith...................13
11 Mary S. Bacon................. 14 to 24
12 J. W. Pero & Co................ 25 to 36
12 Chas. Thompson............... 37 to 48
20 M. I. Wilcox Est............... 49 to 68
12 W. A. Jones................... 69 to 80
3 W". M. Holliday................ 81 to 83
6 O. S. Wilcox................... 84 to 89
6 H. E. Rouse................... 90 to 95
4 M. I. Wilcox Est............... 96 to 99
12 H. C. Stahl....................100 to 111
11 J. H. Clauss...................377 to 387
12 J. H. Clauss...................148 to 159
1 J. H. Clauss....................136
10 M. C. Briggs Est..............137 to 146
145 Total
“With reference to all these bonds enumerated in Schedule B and secured by said parties under the so-called unit agreement, the court finds they are outstanding obligations of the Toledo, Ann Arbor & Detroit Railroad Company to the amount of their face, together with the accumulated interest. The court further finds that it is claimed by several of the parties of this cause that all of the 145 bonds enumerated in Schedule B were issued to the parties by which the same are held as hereinbefore set forth under the agreement by which said parties or some of them became the owners of a large amount of the capital stock of the said railroad company, for which said parties paid no value, and that the parties so receiving the said bonds are liable to said company and its creditors for the unpaid value of said stock. The court does not at this time determine the question as to the liability of the holders of said last-named bonds as for unpaid stock subscription, but it orders that the amount to which the holders of said 145 bonds would be entitled to receive out of the proceeds of sale of said property to be paid to the register of the court to abide the further order of the court herein on application of either of the holders of said bonds or of the receivers of said railroad company. '
“The railroad having been sold, there was paid to the register of this court November 1, 1909, the sum of $5,060.64, being the amount due to the aforesaid unit holders. The court then made an order. July 12, 1909, upon the petition of the receivers, directing a notice to be published requiring all creditors of the railroad company to exhibit their claims and become parties to this suit, as provided by statute, on or before February 1, 1910. In accordance with said order, the Lamb Wire Fence Company, Gorman Bros., and J. L. Hosier and no others filed their intervening petitions, setting up claims amounting to $7,838.88 and $18,628.25 and $-, respectively, growing out of their contracts made with the Patrick Hirsch Company as subcontractors in the building of the Toledo, Ann Arbor '& Detroit Railroad. The following also filed claims with the register, but not intervening petitions, claiming to be direct creditors of the railroad company: Jno. O. Zabel, $3,311.32; John White, $241.62; C. H. Masters, $500.00.
“The petitions are too lengthy to quote here. They set forth the facts showing the manner of the organization of the railroad company and the Patrick Hirsch Company, the way the road was attempted to be built, and the method pursued in the issuing of the stocks and bonds of the railroad company; alleging among other things the following: . The whole purpose and design of the promoters of the railroad company, being the persons above mentioned and their associates, if any, in all the incorporations, contracts, resolutions and acts aforesaid, or done in connection therewith, was and is: (a) To enable said railroad company to issue to said promoters above named the bonds and stocks of the said railroad company at less than their par value, and that the aggregate of said bonds and stocks should be more than twice the actual value of the railroad for which they were ostensibly issued, (b) That by the fiction of a contract for the construction of said railroad with another company it might be made to appear that said bonds and stocks were issued for actual value, and thus enable the promoters to receive said bonds and stocks and place them on the market for sale to innocent purchasers at a discount, wJlo could not buy directly from the railroad company at less than par. (c) To enable the construction company to make subcontracts with labor and materialmen for the actual construction of said railroad, such as Gorman Bros., but whose claims and demands for payment would be against the construction company and not against the railroad, which latter would have the railroad protected by the lien of the trust deed securing the bonds, and said bonds being payable to bearer, either held by said individuals interested or some one of them, or sold on the market and the proceeds thus received and held for their individual benefits.
“The prayer is as follows: (a) That upon the hearing of this petition the said court may make an order declaring the contract made by your petitioners with the said Patrick Hirsch Company for the construction of the said power house as aforesaid to be a contract made with both corporations, and with the officers and directors of said-corporations, (b) That upon the hearing of said petition, the said court may make an order that said contract was made with the Toledo, Ann Arbor & Detroit Railroad Company, as well as with the Patrick Hirsch Company, (c) That the court may, upon the hearing thereof, declare that in equity the said fund should be subject and applied upon the claim of your petitioners.
“On April 5, 1910, the receivers of the railroad company filed a petition to determine the distribution of the money, amounting to $5,060.64, in the hands of the register, alleging among other things: Your petitioners further represent that they are informed and believe that the holders of said 145 bonds, excepting the said Mary S. Bacon, are indebted to the said railroad company largely in excess of said sum now in the hands of said register (and each of them are so indebted), and certain creditors of the said defendant the Toledo, Ann Arbor & Detroit Railroad Company claimed that all of the holders of said 145 bonds, on account of fraudulent acts of said holders in their connection with the organization and management of the said. railroad company and the Patrick Hirsch Construction Company, and because of their purchase of the stock of said railroad company, which they severally have not paid for, and which they are severally owing.-the said railroad company therefor, are liable to the said railroad company and its creditors as and for unpaid stock subscriptions; and your petitioners aver, upon information and belief, upon the grounds above stated, that all of the said above-named bondholders, except the said Mary S. Bacon, are owing to the said railroad company for unpaid stock as aforesaid for the par value of $33,500 of stock for each 12 bonds held by each of the above-named parties, and that each one of said above-named persons, excepting the said Mary S. Bacon, is owing to the said .railroad company the sum of $2,791.66 for each bond so held by him respectively.
“The prayer of the petition was as follows: (1) That the court declare all of said funds in the hands of the register of this court, excepting that proportionable to said Mary S. Bacon, be declared a payment on the indebtedness of the aforesaid parties to the said railroad company, and that the same be paid to the receivers of said company. (2) That, in so far as the holder of said bonds appear in this court, this court determine the amount due to the said railroad company from the said holders of bonds respectively, and order such amounts so found to be due to be paid to the receivers of said railroad company.
“Notice to the unit holders, most of them being nonresident, was given by publication, and, none of them appearing, a default was taken against all of them except Mary S. Bacon, who filed an answer admitting that she was the owner of 11 bonds, but denying that she was a unit holder. To the intervening petitions of the fence company and Gorman Bros., an answer in the way of a general denial was filed by the railroad company and its receivers. The case having been heard before Judge Golden on December 16, 1910, a decree was entered finding in favor of the intervening creditors and Mary S. Bacon, and ordering the receivers to distribute the fund and pay the same out as follows: (1) To Mary S. Bacon her pro rata share on 11 bonds. (2) That he pay the costs and expenses of the receivers and their attorneys as follows: John O. Zabel, $500; Willis Baldwin, $500; I. H. Burgoon, receiver, $60; Edward J. Beady, register, .$-. (3) What shall remain in the hands of the court shall be distributed as follows: Pro rata between the said Gorman Bros., Lamb Wire Fence Company, Willis Baldwin, John O. Zabel, J. S. Clark, Fred Froehlieh, I. H. Burgoon, John White, and Chas. Masters.
“From this decree the railroad company has appealed, and the Lamb Wire Fence Company and Gorman Bros, made a cross-appeal from so much of the decree as provided for distribution to others than themselves.”

The first important question to be determined is whether the railroad company has a right to appeal this case. We quote from the brief of counsel for the railroad company:

“Whether or not the railroad company had any right to the so-called fund is neither here nor there; the point is that the appellees, as a foundation for reaching the fund, had to have a decree establishing their claims (which on their face were against another person) as claims against the railroad company. This they have obtained, and they have obtained it by a decree; and, if the railroad company has enough life to obtain a decree against it, then it has enough life to defend itself by an appeal. A corporation is not dead simply because a receiver has been appointed over its property. State v. Merchant, 37 Ohio St. 251.”

This sounds well, but it is not conclusive. At this point it becomes important to know the status of the case when the decree was entered. The answers to the intervening petitions after the formal part commenced as follows:

“The answer of the defendant the Toledo, Ann Arbor & Detroit Railroad Company, and Willis Baldwin and Isadore H. Burgoon, receivers of said defendant, heretofore appointed in said cause by this court, to the intervening petition of James H. Hosier and Robert A. Bollus, filed herein. These defendants and respondents hereby reserving to themselves all right of exception to the said intervening petition for answer thereto say: * * * ”

It ended as follows:

“And deny that petitioners are entitled to the relief prayed for or any part, thereof, and ask to be dismissed with their reasonable costs in this behalf expended.
“The Toledo, Ann Arbor & Detroit Railroad Company,
“By John O. Zabel, Secretary.
“Willis Baldwin and Isadore Burgoon, Receivers and Respondents,
“By John O. Zabel, Their Attorney.
[Seal.]
“John O. Zabel,
“Solicitor for Defendants and Respondents.”

It will be observed that these signatures are all made by Mr. Zabel. It has already appeared that as early as July, 1908, it was .décreed that the amount of the—

'Proceeds of the sale of the property, should be paid to the register of the court to abide the further order of the court on application of either of the holders of said bonds or of the receivers of said railroad company.”

It has also appeared that in April, 1910, the receivers petitioned for a distribution of the fund. In that petition a reference was-made to the creditors and the amount of their claims, and the following appears: “Your petitioners further show that there are no funds to pay the claims of the said company excepting the sum of $5,060.64 and such sum as may be realized from such unpaid stock subscriptions”— showing clearly that the railroad company was insolvent. It also appears that after a hearing, and in December, 1910, a decree was entered which, after the formal part, reads in part as follows:

“This cause came on to be heard upon a petition of Willis Baldwin and Isadore H. Burgoon, receivers of the Toledo, Ann Arbor & Detroit Railroad Company, heretofore appointed herein by this court, the answer of Mary S. Bacon thereto, and upon the intervening petitions of Frank Gorman and Thomas Gorman, survivors of the copartnership theretofore doing business under the firm name and style of Gorman Bros., the intervening petition of the Lamb Wire Fence Company, a corporation, and the intervening petition of J. L. Hosier & Co., a copartnership, the answer thereto, the replication of said intervening petitioner to such answers, and the proofs taken in open court in said cause, and having been argued by counsel for the respective parties, and the court having duly considered the same, the court finds as follows.”

Then follow the findings of the court, including costs and expenses to the receivers and their attorney. Indorsed on this decree is the following:

“I consent to the entry of the above decree.
“John O. Zabel, “Attorney for Receivers.”

It will be remembered that Mr. Zabel had appeared for all the defendants, and that they had no other solicitor of record. It is clear he had knowledge of the proposed decree, and that the railroad company, as a company, had no interest in the fund, and that it was hopelessly bankrupt. It does not appear that any objection was made to the entry of this decree by Mr. Zabel or by anybody else. Later Mr. Zabel ceased to be the solicitor for the railroad company, and another was substituted in his place by his consent, and this appeal was taken. The fact should not be overlooked that, though notice was given of the petition by publication, none of the unit holders appeared. It should also be remembered that, when this decree was made, the railroad company was in the hands of a receiver, and, so far as the record discloses, is still in the hands of a receiver. The court was not requested to direct the receiver to appeal from the decree. No request was made of the court, or granted, giving the railroad company permission to appeal the case.

The following proposition of law has been stated as to chancery appeals:

“An appeal can only be taken by parties who are affected by the decree appealed from; there must be some substantial rights of the parties to which the appeal would be prejudicial. An appeal will not be allowed in a mere fictitious case, and the court will not entertain mere speculations of parties or feigned issues; and so a merely fictitious case to test the rights of parties who do any particular thing will not be entertained by the appellate courts.” Van Zile’s Equity Pleading & Practice, § 360, p. 494.

See Chapin v. Perrin, 46 Mich. 130 (8 N. W. 721); Owen v. Yale, 75 Mich. 256 (42 N. W. 817); Weber v. Costigan, 139 Mich. 146 (102 N. W. 666).

In this case, under all the facts surrounding it, with the railroad company having no interest in the fund, to say that as to the receivers the decree was a consent decree from which they could not appeal, but as to the railroad company it was not a consent decree from which it could appeal, .would be a refinement of words which does not appeal to our sense of justice. We think it must be held that as to the railroad company the appeal should be dismissed. This brings us to the cross-appeal. Objection is made to the allowance to Mary S. Bacon. We think the answer of Mrs. Bacon, the testimony of her husband, and the consent of the receiver justified this part of the decree.

Objection is made to the allowance for solicitor’s and receiver’s fees. The trial judge was familiar with the litigation which was very considerable, and there is nothing to indicate that- he abused his discretion in making these allowances.

Objection is made to the allowance of certain claims, which it is said were not filed with the register. The record shows the attention of the court was called to these claims and proofs were taken in open court in relation thereto. We think the decree as to them should not be disturbed.

We again quote from the brief:

“If, however, the court should be of the opinion that they should participate, then we think the court should allow the solicitors of Gorman Bros, and the Lamb Wire Fence Company reasonable compensation for their services in prosecuting this case, to be charged against the fund. Otherwise Gorman Bros, and the Lamb Wire Fence Company, who were diligent and complied with the order of the court, must pay their solicitors in both the lower court and Supreme Court, and to that extent, be .worse off than the other creditors, who were tardy and failed to comply with the court’s order.”

Our attention has not been called to any place in the record where the solicitors made this claim in the court below. No reference is made to this subject in the cross-appeal.

We find no reversible error, and the decree is affirmed. As both parties have appealed, no costs will be allowed.

Steere, Brooke, Kuhn, and Stone, JJ., concurred with Moore, C. J.

Ostrander, J.

I think that no reason is given in this opinion for denying to the defendant railroad company the right to appeal. As a majority of the justices are of a different opinion, it is not necessary for me to examine other questions.

McAlvay, J., concurred with Ostrander, J.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    PITTSBURGH PLATE GLASS CO. v. CHARLES KLEIN CO.
    Aípeal and Error — Questions Reveewabue — Moot Points.
    Where complainant filed a bill to enforce a lien for materials furnished in the remodeling and reconstruction of a building, and defendants contended that under the contract with the principal contractor the entire cost was to be offset against an indebtedness outstanding between the contractor and the defendant in possession, and the final decree determined that no contract, as claimed, was made, as shown by the uncontradicted proofs, and where one of the defendants, a corporation, had 'taken an assignment of all claims for liens allowed by the decree in the name of its president, such corporation and the defendants who claimed interests in the building could not try the suit on appeal under a stipulation by which it was stated that the contract contained an agreement to offset the said indebtedness to the contractors against the cost: the effect of such stipulation between a portion of the parties, could bind only the parties executing it, and the question presented was in the nature of a moot point, which the appellate court will not review.
    Appeal from Wayne; Donovan, J.
    Submitted April 5, 1912.
    (Docket No. 55.)
    Decided March 20, 1913.
    Rehearing denied May 1, 1914.
    Bill by the Pittsburgh Plate Glass Company against the Charles Klein Company, Gertrude M. Baldwin, the Detroit Lumber Company, and others, for the enforcement of a mechanic’s lien. From a decree for complainant and other lienors, said Baldwin and the Detroit Lumber .Company appeal.
    Affirmed.

      D. B. Hayes and Bumps & Bishop, for appellants.

      E. T. Berger, for appellee the Detroit Lumber Company.
   McAlvay, J.

This was a proceeding in chancery-on the part of complainant to enforce its lien, under the mechanic’s lien law, for material furnished in the construction and remodeling of a certain building in Detroit, occupied by defendant Charles Klein Company as lessee and owned by defendant Gertrude M. Baldwin.

The printed record is a brief one of but 20 pages. The original return to this court, which contains all the proceedings and pleadings had therein, except the testimony taken in the case, contains 200 or more typewritten pages. This printed record does not show the original bill of complaint or any of the pleadings in the case, except the cross-bill of the Detroit Lumber Company and the answer of defendant Charles Klein Company thereto, signed and verified by Walter Klein, its vice president. It contains, also, the decree granted under the issue between said parties on November 14, 1911, upon pleadings and proofs heard in open court on that date, which decree determines that there was due to the defendant the Detroit Lumber Company $582.22 for materials furnished in the construction of the building in question. It also determines certain amounts due to four other lienors, including complainant, and recites that the four claims and liens of such lienors had been duly assigned to Walter Klein, and the aggregate amount of such claims to be $757.68; and it further decrees that the principal contractors, McIntyre & McIntyre, are indebted to the Detroit Lumber Company, and also to Walter Klein, as assignee, in the amounts above stated, which they are decreed to pay within a certain time, and in default thereof that these parties are decreed to have a statutory lien against the premises described, of which Gertrude M. Baldwin is the owner and Charles Klein Company lessee, and providing for the collection of such amounts, together with costs and interest, by sale in the usual manner provided in such cases.

The record shows that McIntyre & McIntyre, a firm of contractors and builders, undertook to construct and remodel the building upon the premises in question, of which the defendant Charles Klein Company was the lessee. In the answer of said defendant to the cross-bill of the Detroit Lumber Company, the claim is made that McIntyre & McIntyre, before they undertook the contract to construct and remodel this building, were indebted to the defendant the Charles Klein Company to the amount of $2,708.70, and that they entered into a verbal contract with such defendant to erect and remodel the building, according to the plans and specifications agreed upon, for the sum of $2,617, with the express understanding and agreement between the parties that the aforesaid indebtedness of $2,708.70 was to be paid by the performance and completion of the work on this building according to said contract.

The record shows a settlement of the case on appeal, reciting that it was made on November 15, 1911, purporting to recite the hearing of testimony of certain witnesses and including a stipulation of facts, entered into by and between the solicitors for the defendant Charles Klein Company and for the cross-complainant the Detroit Lumber Company, in writing, which the original return shows was dated November 15, 1911, and further purports to show that on November 22, 1911, the court had made a decree in said case in terms the same as already herein recited in the decree of November 14, 1911, and that the court thereupon, upon the request of these solicitors, last above named, certified that the transcript contained the substance of all the evidence in the case and the stipulation of facts, and settled and signed such transcript December 21, 1911.

The following is the stipulation of facts referred to:

“State of. Michigan. In the Circuit Court for the County of Wayne, in Chancery. Pittsburgh Plate Glass Co., Complainant, v. Charles Klein Co. et al., Defendants. No. 85,858.
“Stipulation of Facts.
“In the year 1909 the Charles Klein Company, a corporation, one of the defendants, was a tenant by a term lease of premises on Broadway avenue, in the city of Detroit, owned by Mrs. Gertrude M. Baldwin. The Charles Klein Company entered into a verbal contract with Messrs. McIntyre & McIntyre, copartners engaged in the building and contracting business, to remodel and improve said premises for the sum of $2,617, in accordance with certain plans and specifications. It appears that at the time the said verbal contract was made, in July, 1909, Messrs. McIntyre & McIntyre were.-indebted to said Charles Klein Company on an old obligation represented by notes, some of which were due, and some not due, amounting to approximately $2,700. It is claimed by said Charles Klein Company that it was a part of the aforesaid verbal contract and agreement so made and entered into with said Messrs. McIntyre & McIntyre that the amount of the contract for remodeling the premises should be offset and paid by the amount of the old indebtedness owing to the said Charles Klein Company. This agreement, it is admitted, was wholly verbal, and was entered into before the defendant the Detroit Lumber Company had contracted with Messrs. McIntyre & McIntyre to furnish the lumber for such remodeling, and was unknown to the Detroit Lumber Company until after all the lumber and material had been furnished and used in the premises to the amount of $582.22. John McIntyre, testifying in this case, denies that any agreement to offset these claims was made; but for the purpose pf this case, and for the purpose of this appeal:
“It is stipulated and agreed between the parties that such an agreement as is claimed by said Charles Klein Company, as herein set forth, was made at the time specified, and such .agreement was verbal, and entirely without the knowledge of the Detroit Lumber Company; and, further, that said Charles Klein Company actually set off the aforesaid indebtedness and credited Messrs. McIntyre & McIntyre with the full amount due the latter on their contract before the Detroit Lumber Company filed their claim of lien in this case. Upon these facts is the defendant and cross-complainant, the Detroit Lumber Company, entitled to a lien and a decree for its enforcement?
“It is stipulated and agreed that, if the defendant the Detroit Lumber Company is entitled to a lien, the decree shall be for the sum of $582.22; if not entitled to a lien, the Detroit Lumber Company shall not recover any amount, and the 1 cross-bill may be dismissed.
“It is further stipulated and agreed: That the following amounts are due to the following respective parties to this suit from Messrs. McIntyre & McIntyre for work and labor performed and materials furnished said Messrs. McIntyre & McIntyre on said contract:
Christian De Croupet.......................... $294 74
Frederick B. Stevens.......................... 113 10
Henry Houghton ............................. 114 31
Pittsburgh Plate Glass Co...................... 235 53
“That Walter Klein is the assignee of said respective claims; and if, under the foregoing facts, the Detroit Lumber Company is entitled to a lien on said premises, it is stipulated and agreed that said Walter Klein, as assignee, is also entitled to a lien on said premises for the sum of $757.68.
“Bumps & Bishop,
“Solicitors for Defendant Charles Klein Co.
“E. T. Berger,
“Solicitor for Cross-Complainant Detroit Lumber Co.
“Dated, Detroit, Michigan, November 15, 1911.”

This case, as settled by the circuit judge, was accepted as the case on appeal by their respective solicitors for the benefit of defendants Charles Klein Company, Gertrude M. Baldwin, and the Detroit Lumber Company by a stipulation in writing.

The original return shows that defendants Charles Klein Company and Gertrude M. Baldwin appealed from the decree which, in their claims of appeal, filed December 26, 1911, and February 10, 1912, respectively, is said to have been rendered November 22, 1911; and the part of the record brought to this court on such appeal is the issue made upon the cross-bill of defendant the Detroit Lumber Company and the answer of defendant Charles Klein Company, settled and certified as herein stated. The confusion of dates in this record as to the decree may partly arise from the fact thát it was not filed for several days after it was granted.

It is evident from the record and from the recitals in the stipulation of facts that this stipulation was made and entered into after the hearing of said cause and the rendering of the decree therein. In the stipulation of facts appears the claim of the defendant Charles Klein Company relative to the claimed verbal contract entered into between it and the principal contractors, McIntyre & McIntyre, who are defendants in this suit, and against whom the decree is taken and their liability fixed as to the entire amounts found to be due the lienors in such suit. The stipulation also shows as follows:

“John McIntyre, testifying in this case, denies that any agreement to offset these claims was made; but for the purpose of this case, and for the purpose of this appeal,' it is stipulated and agreed between the parties that such an agreement as is claimed by said Charles Klein Company, as herein set forth, was made at the time specified and such agreement was verbal.”

It is therefore admitted that there was evidence in the case, by the testimony of one of the parties to the claimed contract, denying the existence of any such agreement, and there is no evidence to the contrary. The entire ease, of appellants in this suit is founded upon the stipulation of facts. The sole question relied upon and discussed by appellants is whether the claimed agreement would defeat the liens of defendant Detroit Lumber Company and the other lienors.

The making of a stipulation of facts in a case by a part only of the parties thereto, where a decree, already made, fixes the rights of all the parties, and which stipulatipn, on its face, is contrary to substantive evidence in the case, presents at least a novel proposition. It is well settled that parties, by a stipulation, cannot affect any rights but their own. The testimony of John McIntyre is not disputed, and the decree of the court, fixing the rights of the parties and determining the liens of the materialmen, concerning the amount of whose claims there is no dispute, was warranted by the evidence in the case.

While we appreciate that the question sought to be brought up by this stipulation is an interesting one, we will not discuss it, for the reason that, in our opinion, the defendant Charles Klein Company did not, upon the hearing of the case, establish the contract claimed to have been entered into with the contractors. And we suggest that it is apparent from the record that all the claims of other lienors, except defendant Detroit Lumber Company, had been assigned before decree to Walter Klein, vice president of the Charles Klein Company; and that the .decision of this court is sought upon what, in effect, is a moot question.

The decree of the circuit court is affirmed, with costs.

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


text:
    CARVER v. BIELEKE.
    1. Amendments — Plea—Recoupment—Appeal from Justice’s Court — Trial—Lease.
    Upon the trial of an appeal from a justice’s judgment in favor of plaintiff, who brought an action for rent due under a written lease, wherein defendant, the tenant, had orally given notice of set-off and recoupment in general terms, and had defended on the ground that the landlord had failed to repair certain leased buildings as it was stipulated in the lease, and had filed a written bill of particulars of his claim before the justice who in' part allowed it, the circuit court should have permitted the defendant to introduce evidence in support of the alleged recoupment, and erroneously rejected the testimony on the ground of insufficiency of the notice of defense.
    2. Same — Construction—Appeal and Error.
    Technicalities and formalities are not countenanced in the review of pleadings in justices’ courts: the purpose of pleadings is to inform the parties what they will be called upon to meet, and if sufficient notice is given, objections should not be sustained.
    Error to Wayne; Murphy, J.
    Submitted April 18, 1913.
    (Docket No. 95.)
    Decided October 10, 1913.
    Assumpsit in justice’s court by Walter Carver against Gustow Bieleke for rent. From a judgment for plaintiff defendant appealed to circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      W. C. Gottman, for appellant.

      Edward M. Vining, for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant before a justice of the peace for Wayne county, declaring orally in an action of assumpsit and on all the common counts, and especially on a certain written lease for a certain rent claimed to be due. The defendant pleaded the general issue and “gave notice of set-off and recoupment.” It is claimed by defendant that on the trial before justice’s court a bill of particulars of his recoupment was filed with the court, and testimony in recoupment was offered and introduced in evidence and considered by the court. Plaintiff claims that this bill of particulars Was not filed with the justice, but does not deny that the question of recoupment was litigated. Plaintiff’s only claim was for two installments of rent under this lease, amounting to $250. The trial before the justice was without a jury, and resulted in a judgment against defendant for the sum of $199 and costs. Defendant appealed from this judgment to the circuit court for Wayne county, where the case came on to be heard before a jury. During the trial, while defendant was putting in his proofs, objection was made for the first time that no proper notice of recoupment had been given, and therefore that testimony upon such recoupment was not admissible under the pleadings. It appeared in the proofs in the case that there was a provision in the lease that plaintiff, as lessor, agreed to fix the roof of the barn upon the premises leased. The words of the lease necessary to be quoted are:

“The first (party) agrees to shingle house and fix roof on barn.”

The roof of this barn covers a part used as a horse barn, and also that part used as a cow barn. Plaintiff reshingled that part of the barn called the “horse barn,” but refused to repair the balance of the roof. The objection of plaintiff to the introduction of any evidence as to recoupment for damages by reason of the leaking of the balance of the roof was sustained, after considerable colloquy between the court and counsel, which excluded all evidence of damage arising therefrom. Counsel for defendant then moved for leave to amend his plea and file the particulars of his recoupment, which was used in justice’s court, nunc pro tunc, or for a continuance of the case to get a further return- from the justice, claiming that he had not seen the return until the day before the trial began. The court denied the motion and then, on motion of plaintiff, directed a verdict in his behalf for the sum of $250, the full amount claimed, basing his decision upon the ground that defendant’s attorney had not used due diligence, and that a continuance would entail a delay, which did not make for the speedy administration of justice. Upon this verdict a judgment against defendant was duly entered. Later defendant made a motion for a new trial, which was denied. From the judgment entered upon such directed verdict defendant, upon writ of error, reviews the case in this court.

The principal contention in the case is upon the exclusion by the court of all evidence showing recoupment, on the ground that no proper notice of recoupment had been given. Upon this proposition the record shows, from the return of the justice, that the pleadings in that court, both on the part of plaintiff and defendant, were oral. It appears from the record of the trial in the circuit court that in justice’s court defendant put in his defense of recoupment, and the amount of the judgment indicates that such recoupment was allowed in part. During the discussion before the court counsel for plaintiff in effect admitted that a bill of particulars of defendant’s claim of recoupment was received and used in justice’s court, and defendant was allowed to testify concerning his damages by reason of plaintiff’s default in his lease, and that he was cross-examined upon such claim. As already stated, the judgment in justice’s court was $51 less than the amount claimed by plaintiff.

This court has repeatedly held that justice court pleadings should be viewed with liberality, technicalities discountenanced, and substance instead of form required. This claim of recoupment, the bill of particulars of which was presented to the justice and used without objection upon the trial by defendant, and upon the testimony which defendant gave under it he was cross-examined by plaintiff, was sufficient, added to the pleadings in the case, to warrant the justice in receiving testimony under it, and also to give notice to the plaintiff of this nature of the claim of defendant with sufficient certainty to prevent surprise as to what he would be called upon to meet with his proofs. Whether the justice marked the paper as filed in the case does not appear. Plaintiff’s attorney says he'is informed it was not filed. The entire purpose and sole requirement of pleadings in justice’s court is to inform the opposite party what he will be called upon to meet. This knowledge plaintiff had in the justice’s court, and accepted without protest or question, as far as the record shows. He made no claim that he was surprised. Counsel for plaintiff, and apparently the court, relied upon the case of Watkins v. Ford, 69 Mich. 357 (37 N. W. 300). We think that the cases are distinguishable. In the instant case, by the itemized bill of particulars upon which the defense was based in justice’s court, as already stated, plaintiff was informed of defendant’s claim, while in the case relied upon and the other cases cited, nothing appears to have been brought to plaintiff’s notice but the general statement that defendant “gave notice of set-off and -recoupment.” In view of the liberality with which this court has always viewed pleadings and proceedings in justice’s court, where formalities and technicalities have been discountenanced, and that the pleadings are held good if sufficient notice has been given as to what issue is to be met, we are of the opinion that the court should have overruled the objection of plaintiff, and should have received evidence offered by defendant in recoupment. From the record of the trial in the circuit court it is apparent that this claim of recoupment was made in good faith, and that the construction of the lease relative to the repairs upon the roof of the barn is involved.

In the motion for a new trial made by defendant this matter of his contention that he was entitled to introduce evidence in recoupment on his defense was emphasized and called to the attention of the court as one of the reasons why a new trial should be granted. From what has been already said upon the subject, our conclusion is that the court was in error in refusing to allow defendant to show recoupment, and also in refusing later to grant a new trial.

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

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


author: Kuhn, J.

text:
    EATON v. HOPE.
    1. Sales — Warranties—Evidence—Remoteness.
    Testimony of witnesses, who had owned a mare before defendant, that it had no bad h'abits or traits when they owned it several years before it was sold to plaintiffs, was not too remote, in an action for breach of warranty, where defendant claimed that the horse acquired the alleged vices or habits after plaintiffs purchased it.
    2. Trial — Argument—Issues—Misconduct of Counsel.
    Upon disputed testimony concerning the qualities of a mare which plaintiffs claimed had the habit of kicking, the respective vocations of plaintiff and defendant who had testified were a proper subject of comment in the argument.
    3. Sales — Joint Purchase — Husband and Wife.
    There being a dispute whether the plaintiffs’ who were husband and wife,- had jointly purchased the mare, the court was correct in submitting the question to the jury.
    4. Same.
    Instructions to the jury that plaintiffs had the burden of proof to establish every allegation by a preponderance of the evidence, was error: the plaintiffs could recover if they proved any one of the several breaches alleged and relied upon.
    Error to Kalamazoo; Knappen, J.
    Submitted June 3, 1913.
    (Docket No. 11.)
    Decided October 10, 1913.
    Assumpsit by Fred R. Eaton and Bernice E. Eaton against Chauncey Hope for breach of warranty in the sale of a mare to plaintiffs. Judgment for defendant. Plaintiffs bring error.
    Reversed.

      Fred A. Mills and Harry C. Howard, for appellants.

      Claude S. Carney, for appellee.
   Kuhn, J.

The plaintiffs brought suit to recover damages from the defendant for an alleged breach of warranty arising from the sale of a horse. The breaches of warranty relied upon are stated in plaintiffs’ declaration as follows:

“That said horse, to wit, a mare, being the said horse taken by the plaintiffs from said defendant, was not as said defendant represented, and was not free from vice, and was not all right in every spot and place, and would not work double as said defendant represented, and said horse was not kind and gentle but was what is known as a ‘switcher and kicker,’ and said horse had a very bad disposition.”

The' trial resulted in a verdict of no cause of action, and plaintiffs bring the case to this court by writ of error. The errors complained of are grouped by plaintiffs’ counsel in their brief as follows:

“First. Errors in the ruling of the court, made before submitting the case to the jury.
“Second. Improper argument of defendant’s counsel.
“Third. Errors in the charge:”

As to the first, objection is directed principally to the testimony of Mr. and Mrs. Wightman, who had owned the mare from the time she was three years old until she was six, when they sold her to the defendant, Hope. They were allowed to testify as to what her habits were during the time they had her, and the objection is now urged that this was too remote to be of any assistance to the jury in determining what her habits were at the time of the sale, several years later. In view of the claims made by plaintiffs that the horse had been warranted to be free from vice and had no bad habits, and the claim made by the defendant that if the mare had any vicious habits they were such as she acquired after the sale to the plaintiffs, because of having foaled her colt, it was proper to allow considerable latitude in showing the habits of the mare to determine whether or not she had acquired the vicious habits before or after the sale to the plaintiffs. For the same reason there was no error in admitting the testimony of the other wit nesses examined as to the habits of the mare.

During the argument to the jury of one of the attorneys for the defendant, the following occurred:

“You men, or most of you, are farmers, and most of the counsel have had some experience on farms, and I want you to consider'this case on the one hand between a young banker and on the other hand against an old farmer.
“Mr. Howard: I object and'except to this line of argument. It is not a proper line of argument to hold up to the jury the fact that one of the plaintiffs is a .banker and that the defendant is or has been a farmer. These matters should have no bearing upon the case.
“The Court: I think it is proper to allude to the respective vocations of the parties.
“Mr. Howard: This is going beyond that, and I take an exception.”

The vocation of the parties to the controversy was brought out by the evidence, and, as their experience with horses would necessarily be helpful to the jury in determining what weight to give their testimony in determining the various questions of fact submitted to them, we do not find it prejudicial for counsel to have called their attention to the vocations of the parties shown by the evidence and without using any abusive or extravagant language in commenting thereon.

At the close of plaintiffs’ proofs, counsel for the defendant requested the court to direct a verdict because there was a misjoinder of plaintiffs; it being contended that the proofs showed that the contract of purchase was made with Fred Eaton alone and that the note given in payment of the horse was signed by his wife, Bernice Eaton, merely as a surety. The court thereupon gave counsel the opportunity to amend the declaration by striking out the name of the coplaintiff, Mrs. Eaton. Counsel decided, however, to stand upon the declaration as originally filed, and the court thereupon submitted to the jury the question as one of fact and charged them in the following language:

“In determining who were the purchasers of the horse, you have a right to consider that both Mr. and Mrs. Eaton signed the note, intending that both should be bound as principals. If Mrs. Eaton had signed merely as surety for her husband, under the laws of the State of Michigan she would not be bound, but in Michigan there is no rule to prevent a married woman from becoming a joint debtor with her husband on a proper consideration. And if you find that it was the intention of the parties and the parties meant that she should become a joint debtor for this mare, a joint purchaser, consequently a joint debtor, then you would be justified in concluding that she was joint owner of the mare.”

There was some testimony, though meager, to sh,ow that the horse was purchased by plaintiffs jointly; that it was a joint contract; and also evidence to prove that Fred Eaton alone had purchased the horse and his wife did not become connected with the transaction until a signer or surety to the note was demanded. There being a conflict in the evidence on this point, it was properly submitted to the jury.

Attention is called to various parts of the court’s charge, and exception is taken to the following, which was given:

“I am also requested to charge you by the defendant: (7) You are instructed that the plaintiffs have the burden of proof upon them, and it is necessary, to entitle them to recover, that they should prove every essential claim by a fair preponderance of the evidence; to entitle them to recover they must prove each and every allegation in this case by a fair preponderance of the proofs; and, if you fail to find any one of the allegations on the part of the plaintiffs made out by such preponderance, then you will find in favor of the defendant and render a verdict of no cause of action.”

This part of the charge was one of the defendant’s requests to charge and was given as such. ' In giving it the court called particular attention to it. It was an incorrect statement of the law applicable to the case, because it was not necessary for the plaintiffs to prove each and every claim made by them as to the warranties. Lepard v. Railroad Co., 166 Mich. 373 (130 N. W. 668, 40 L. R. A. [N. S.] 1105). It was sufficient if the plaintiffs established by a fair preponderance of the evidence that any oné of the allegations covered by the warranty was true. It cannot be said, under these circumstances, that the error was cured by the rest of the charge, as it is to be presumed that the jury may have followed the law as given to them in this request to charge. Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152 (10 N. W. 179); Madill v. Currie, 168 Mich. 546 (134 N. W. 1004).

Because of this error, the case must be reversed, and a new trial granted. '

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


text:
    PEOPLE v. HAMMOND.
    1. Larceny — Criminal Law- — Evidence oe Identity.
    If, from the opportunity of a witness to identify respondent, who was charged with the larceny of an automobile, her opinion was of value, it could properly be received: having seen respondent and had a good opportunity to judge of his appearance, the witness might be permitted to testify that the accused looked like the same person who had the automobile.
    2. Criminal Law — Evidence—Admissions.
    Testimony of reputable witnesses, in a larceny case, that they suspected the respondent was a thief, and charged him with having committed a theft, was harmful and erroneously received, though they also testified that he denied the accusation.
    3. Same — Impeachment.
    Testimony relative to such conversation, which respondent stated he did not recollect, was not made competent by his failure to remember, since it is not permissible to impeach a witness by evidence of immaterial facts.
    4. Witnesses — Impeachment—Secondary Evidence.
    A witness for respondent, having testified that he worked for a railroad company about two or three years at different times, could not be impeached by introducing in evidence records of the company not shown to be complete or correctly kept.
    5. Criminal Law — Charge—Reasonable Doubt.
    Refusal of the court to charge that each member of the jury must be convinced of respondent’s guilt beyond a reasonable doubt, held, not erroneous under instructions that fairly covered the question of reasonable doubt.
    6. Same.
    But the court erred in refusing to give a request that respondent’s testimony was to be tested like the other witnesses, and if rational, natural, and consistent, might outweigh the testimony of all others; the point not being covered by the charge and no instructions being offered as to the weight or credibility of testimony.

      Error to the recorder’s court of the city of Detroit; Connolly, J.
    Submitted June 13, 1913.
    (Docket No. 123.)
    Decided October 10, 1913.
    Chauncey W. Hammond was convicted of larceny.
    Keversed.

      Grant Fellows, Attorney General, Hugh Shepherd, Prosecuting Attorney, and Paul W. Voorheis, Assistant Prosecuting Attorney, for the people.

      William J. Weakley, for respondent.
   Kuhn, J.

The respondent was convicted in the recorder’s court of the city of Detroit of the larceny of an E-M-F automobile of the value of $1,200 and was sentenced to the State prison at Jackson, where he is now confined, for a term of not less than 2% years, with a recommendation of the maximum of 5 years. The automobile was taken from in front of the Fine Arts Building in the city of Detroit on the evening of the 31st day of May, 1911, and was found on June 12th following in the possession of the respondent and William Fraser, in the city of Columbus, Ohio, at which time they were arrested.

One Joseph Du Gaw testified that on the 1st day of June, 1911, the respondent called him by telephone and asked him for the privilege of putting an automobile, which he said he had, in a shed back of Du Gaw’s residence and Du Gaw gave him permission so to do. Du Gaw was not at home for the remainder of the day, but his aunt, Louise Scott, who was at his house, was produced as a witness and testified that on the afternoon of the 1st day-of June a young man resembling the respondent, Hammond, asked the way to the shed back of the house. She heard the noise of an automobile being put in the shéd and later saw the wheels of the car through a window in the shed; that that evening, about 8 o’clock, some one came and took the automobile out of the shed, but she could not say positively that it was the respondent, Hammond.

Error is assigned because of the admission of her testimony, and it is claimed that her statement with reference to the young man who brought the automobile looking like Hammond was a mere opinion. She stated on her direct examination that she supposed it was Hammond, and “this young man [the respondent] looks very much like the young man.” There is no question that she saw a young man and had a good opportunity of judging of his identity. As was said in People v. Stanley, 101 Mich. 93, 96 (59 N. W. 498, 499):

“It is not necessary that witnesses shall swear to a fact with certainty. If, from their opportunity of judging of the identity, their opinion is of value, it is receivable.”

We think there was enough to admit this testimony in the instant case, and the jury could give it such weight as they might think it was entitled to.

In the case of People v. Gotshall, 123 Mich. 474 (82 N. W. 274), relied upon by counsel for respondent, several witnesses testified that the man they saw near the location of the alleged crime resembled the respondent in height and size, but it does not appear that they identified him in any other way, and it further appeared that the accused was a man of average stature. The court said:

“Such testimony is merely the expression of an opinion based upon the most casual observation.”

It is clearly distinguishable from the present case. Respondent testified upon his cross-examination as follows:

“Dietsche spoke to me about this car. I don’t remember everything that was said. I remember that he mentioned about this car being stolen. What else took place there I don’t remember. I don’t remember any talk about an automobile tire.
“Q. Will you say that there wasn’t any talk about a stolen automobile tire?
“Mr. Wilkins: I think this is entirely immaterial as to what conversation took place about matters not connected with this automobile; it lumbers up the record, and I object to it as incompetent and irrelevant.
“Mr. Voorheis: I understand the talk is intermingled, and I am trying to find out what was said.
“Mr. Wilkins: Dietsche said nothing of that kind.
“The Court: Take the answer. (Exception for the defendant.)
“A. I don’t remember any talk about an automobile tire.
“Q. Now, didn’t Dietsche say at this time that if you would return the automobile that he would not prosecute you or make any complaint for the taking of the automobile tire?
“Mr. Wilkins: I object to that. What Dietsche may have said is not binding at all on this defendant. Dietsche may have made lots of remarks, but that should not be allowed to prejudice this man on trial here on this charge.
“The Court: Take the answer. (Exception for the defendant.)
“A. No, I don’t remember that he did. I will not say that he did not say so.”

The prosecuting attorney having rested his case, the following is a portion of the record thereafter made by the people:

“Witness Dietsche, recalled for the people:
“When Hammond was at my place of business he came there in response to a request that I sent for him to go. At that time the automobile that I had reference to and that I talked about was the automobile that was out in his barn. This was either Monday or Tuesday, the 5th or 6th of June.
“Q. Did you or "didn’t you at that time say that if Hammond would return the automobile you would not prosecute him or make any complaint for the taking of the automobile tire?
“Mr. Wilkins: That question is objected to. There is absolutely nothing at all; there is no foundation laid for that at all. Your honor ruled out anything except what was said about the automobile.
“The Court: No, that may go in.
“Mr. Wilkins: I take an exception. There was no foundation laid for it.
“The Court: He has got the transcript before him. You may repeat the question and take the answer. ❖ * *
“Mr. Wilkins: There is no foundation, and furthermore it is immaterial, incompetent and irrelevant.
“The Court: You may have the answer.
“A. Yes, I did say that.
“Q. That is all.
“Mr. Wilkins: I ask that that testimony be stricken out as incompetent and immaterial. There is no occasion for bringing in something for which there is no foundation laid; and there is no testimony here; and there has been no testimony of anything to show anything about an automobile tire stolen or alleged to have been stolen, or no charge made for anything about a stolen tire.
“The Court: It is let in for the purpose of showing what the defendant said when -the character of this automobile that he had was called to his attention by the witness on the stand.
“Mr. Wilkins: What this witness said is not, certainly, to militate against the defendant. It is what the defendant said.
“The Court: That is competent too.
“Mr. Wilkins: There is nothing said about what the defendant said. It is what this .witness said.
“The Court: That ought to be pursued for the purpose of discovering what the defendant said.
“Mr. Wilkins: There was no question asked as to that. It was simply remarks made by this witness; those are the only things that have been allowed to go in.
“The Court: Perhaps if it were pursued further it would get the defendant’s response, because the defendant’s response or failure to respond is what makes the remark of the witness at that time competent now.
“Mr. Wilkins: That is what I objected to the other day. It is simply allowing prejudicial remarks made by other persons to go in evidence against this' defendant. It is not shown this defendant said anything at all.
“The Court: You follow it up and see what the defendant said.
“Mr. Voorheis: Did Hammond make any response to this statement by you?
“A. He said the car that I saw up there was not a stolen car. There was quite some talk on that, but that was about all the nature of it. I told him I knew that was the car that was stolen from the doctor, and he said, ‘No, that is not a stolen car.’ And I said at that time, ‘Why,’ I said, ‘if that is not a stolen car,’ I said, ‘let’s go up there and take a look at it and see it;’ and he said, ‘It is not there any more; the man it belonged to has taken it away.’ And I told him further than that; I told him that, unless he would see that everything in that barn that was stolen was returned, why, I would go down to police headquarters and tell what I knew about the tire that I had lost and where I had found it, etc.”

Cross-examination:

“That was all the talk I can remember.
. .“Mr. Wilkins: I ask that the testimony be stricken out. There is no remark made by the defendant shown, simply remarks made by this man about things to which the defendant made no reply. It is prejudicial to him.
“The Court: It may go in. Exception for the defendant.
“Mr. Wilkins: I move to strike it out, so as to save the record.
“The Court: Save another exception.
“Witness: He told me the automobile was not his, and the man that owned it had taken it away; that is the substance of the conversation.”

That part of this testimony which relates to the accusation made by the witness to the effect that the automobile was stolen had been earlier elicited from the same witness, apparently without objection. And the witness had stated that he did not know that the automobile had been stolen but sought to convey to respondent the idea that he had such knowledge. That part of the testimony which refers to an automobile tire had not before been given.

Of the objections made to the introduction of this testimony, it is said in the brief for the people:

“In the case at bar it is uncontradicted that the defendant heard Dietsche’s remarks and replied to them, saying, T don’t remember any talk about an automobile tire;’ and in reply to the second question as to whether Dietsche did not say at the same time that if Mr. Hammond would return the automobile he would not prosecute him or make any complaint for the taking of the automobile tire, Hammond said, ‘No, I don’t remember that he did.’ Here was a proper foundation laid by these questions, the time, place, person, and the question in toto being understood by the defendant; and, when the defendant averred his lack of recollection of these questions, it became proper to impeach his testimony by calling the witness Dietsche in rebuttal. In Smith v. People, 2 Mich. 415, it was held that, if a witness neither denies nor admits having made any contradictory statements but says that he does not recollect having done so, his testimony may be impeached by proof of such statements. In Pringle v. Miller, 111 Mich. 663 [70 N. W. 345], it is held that when a witness was asked for the purpose of impeachment if he did not make certain statements, and replies that he has no recollection of making them, then the party asking the questions might call other witnesses to prove that they were made.
“It should also be remembered that the question asked of the defendant on cross-examination was, ‘Now, didn’t Dietsche say at that time that if you would return the automobile he wouldn’t prosecute you or make any complaint for the taking of the automobile tire?’ The defendant denied having any recollection of this question being asked him by Dietsche, and on rebuttal Dietsche testified that he did ask the defendant the question referred to, and further testified as to the defendant’s reply thereto, which was, ‘He [the defendant] said the car that ! saw up there was not a stolen car.’ Dietsche said further that T told him [the defendant] I knew that was the car that was stolen from the doctor and he said, “No, that is not- a stolen car.” ’
“Now it is apparent that, if the defendant admitted to the witness Dietsche that the car was a stolen car, there could be no contention that such admission was not receivable in evidence. It was necessary to ask Dietsche the question in order to ascertain the defendant’s reply, and when he testified that the defendant’s reply -was, ‘No, that is not & stolen car,’ that was all there was to it. There could, be no prejudice committed against the defendant by letting in this testimony, because the defendant denied the accusation, and the witness Dietsche admitted that he denied it; and, as there was no other testimony on this point, there could be no doubt created in the minds of the jury because of this particular bit of -testimony. It should be remembered that the entire conversation between Dietsche and Hammond, whether pertaining to an automobile tire or to an automobile, was so interwoven that it was practically impossible to ask questions of Dietsche or for Dietsche to make reply thereto without referring to both transactions.
“Counsel for the defendant, under the same heading, make further objection that the testimony of this conversation between Dietsche and Hammond tended to show another and distinct larceny, namely, that of stealing an automobile tire. If the defendant had admitted that there was a talk about a stolen automobile tire, and also that Dietsche had told him that if he [the defendant] would return the automobile he [Dietsche] would not prosecute him for the taking of the automobile tire, it is hard to see how such reply would have had any tendency to show that he had stolen an automobile tire. The questions were simply as to the conversation had between Dietsche and Hammond relative to the automobile; and, in order to bring out the entire conversation, it was necessary that the question of the automobile tire should also be mentioned; but the defendant certainly could not have been prejudiced before the jury by this fact, because Dietsche said that Hammond replied, stating simply that the automobile in question was not stolen. No further questions along this line were asked of the defendant, and his denial closed the incident. Dietsche was not asked as to whether or not Hammond had stolen an automobile tire, and it was not even intimated that such was the case.
Admitting, however, for the sake of argument, that the questions asked of Dietsche were such as having a tendency to show the commission of a separate and distinct crime by Hammond, inasmuch as the automobile which had been taken from Dr. Brady was found in the'possession of the defendant, and his defense consisted in an effort to show that the car had come into his possession innocently and without any criminal intent on his part, it would seem that under the well-settled rule of law it would have been proper to have shown the commission of a crime of a similar kind and character for the purpose of showing the intent of the defendant in the case at bar.”

The prosecution did not undertake to prove the commission of a similar offense, and it did not prove that respondent had stolen an automobile tire. It was entirely immaterial to the case for the people to prove that one or more personsJhad accused respondent of having stolen the automobile, unless in connection with such accusations respondent admitted that he had stolen it or knew that it was stolen or failed to make any reply.

But it is very suggestive and is prejudicial to a respondent charged with larceny when one or more persons are permitted to testify, in substance and effect, that they suspected respondent was a thief and so told him, even if they also testify that he denied the accusation. It is not difficult to imagine what would be the effect upon a jury of the testimony of five or six reputable men to the effect that they accused the respondent of stealing or of receiving stolen property, knowing it to have been stolen. The declarations of the accused, made in reply to the accusations, that he did not steal the property cannot be supposed to cure the mischief.

That respondent had testified that he could not remember a portion of the alleged conversation afforded no reason for presenting the conversation to the jury. It would have been quite as proper to ask respondent if on some other occasion and with respect to some other property he had not been accused as a thief and, if he answered that he did not remember it, to confront him and the jury with his alleged accuser. Undoubtedly, whatever affects the credit of a witness is material, and there should be as little restriction as possible upon a course of procedure which will disprove a false witness. But the failure of a witness to remember immaterial facts does not open the door to testimony that the facts existed.

A witness, Fred Andrews, testified for respondent. Recalled by the prosecution for further cross-examination, he testified:

“I worked for the Michigan Central three or four times, about two years and a half or three years, all told, something like that. I would not say whether I worked for the Michigan Central in the year 1906. I don’t just remember the year I did start. I would not just say how long it was distributed over. I worked in the roundhouse and I used to switch there and as a brakeman. I would not say how old I was when I started in. When I worked for the Michigan Central I always went by the name of Fred Andrews. My middle name is John — Frederick John Andrews —but probably I didn’t put in the John. I do not know just what I did put down in the application. I might have put Frederick, and I might have put Frederick John. I do not know; I did not use any other names.
“Q. Isn’t it a fact that you went to work for the Michigan Central on the 24th day of January, 1906; that you filed your application on the 15th day of January, 1906, and that you worked to March 10, 1906, and that was the last time and the only time that you worked for the Michigan Central? * * *
“A. No sir. * * ‡
“Q. That is not a fact, then?
“A. No, sir; I worked three or four — I cannot say whether it was three or four times. During that time, between the dates given, I would not say that I was or was not working for them. I do not know; but I worked there anyway. I do not just remember the dates that I did work there. Besides the time that I worked in the roundhouse, I got a job braking for the Michigan' Central and I got a job switching after that. Some of the" time I was on a run out from Detroit to Jackson and other places, when I was braking. Mr. Comstock did not hire me when I got switching. He hired me for braking. I could not just say how long I worked for the Michigan Central. I do not remember; it might have been a year and a half; might have been a year; I would not say.”

Thereupon the prosecution called a witness who testified that he was timekeeper for the Michigan Central Railroad from December 8, 1908, to the date of the trial, and that it was his duty to keep time for all trainmen and yardmen. He was asked to state the custom of his department relative to the records made of applications of those desiring employment. He answered:

“When a man desires employment, he goes to the trainmaster, and if the trainmaster wants to hire him he tells his clerk to hire this gentleman, and he makes out an application, a copy of which you have there, and then when an application is made out the man that hires him keeps a copy of it and sends the man to be examined. * * * The record of these applications is kept in the impression book, of which I have charge.
“Q. I show you this book which .is marked ‘Employment, February 15, 1905, to January 21, 1906,’ and ask you if that is the book kept by you of such applications? * * *
“A. They are copies.
“Q. Those purport to be copies of certain writings?
“A. Yes, sir. * * *
“Q. I will ask you as to what record you find in that book relative to any application as made by Fred Andrews, Frederick Andrews or Frederick John Andrews, during the time covered by that book? *
“A. This book shows that Frederick John Andrews was hired as a freight brakeman on January-15, 1906. * * *
“Q. Do you find any record of any other application made by Mr. Andrews for employment during the time covered by this book? * * *
“A. There is no other records of this man in this book. (The book is considered marked Exhibit A.)
I have made no search of the same records from the time of the expiration of this record down to the present time. The records at the time when a man goes to work and when he ceases working for the railroad' in my department are kept in the time book, which is this book marked ‘Time Bo’ok,’ which covers the period November, 1905, to July, 1907, and which is also kept in my office.
“Q. I will ask you to refer to that book, and tell the court and jury what this shows relative to the employment of Andrews during the time covered by the book. * * *
“A. The first trip Mr. Andrews made was on January 21, 1906, to Toledo. * * * The last trip he made was on the 10th day of March, ,1906, coming from Jackson to Detroit. And the book shows that he got a time check some time in March which paid him for the full time worked in March. I have looked half-way through this book, but I could not find any other record or records of his working for the Michigan Central to October, 1906.
“The Court-: Where did you get this book?
“A. In the superintendent of terminals’ office. It is part of the records of our office, and that is where I got it. My office is timekeeper. The office out of which I took this is the superintendent of terminals. That is the only record of the time the men put in during that period. The' record that our company keeps.”

On cross-examination he testified:

“I am not timekeeper Tor the whole Michigan Central system, just for Bay City, Toledo division. The time of the men running to just Toledo and Bay City, is kept in these books. I know as to how the books were kept prior to the time I came in there. I was assistant to the .timekeeper. I first entered the employ of the Michigan Central Railroad February 8, 1905. I was car checker at that time and became assistant timekeeper in July, 1907. Prior to that time I had nothing'to do with keeping any records in the office of the superintendent of terminals; anything prior to that time I know nothing of. As to matters I have testified to from July, 1905, down to the time I went in there in 1907, they are book records, and I do not know how the books were kept at that time, except as the books show themselves. I do not know whether they are correct. I do not know whether at those times a record of all the men running out of Detroit was kept in the office of the superintendent of terminals or not, prior to the time I went in there. From 1905, down to 1907, I cannot tell whether those records contain a complete record or those books a complete record of all the men running out on Jackson and Toledo division.”

This testimony was received over repeated objections to its competency and materiality, and motions to strike it out were denied. Of it, it is said in the brief for the people:

“It is therefore respectfully submitted that in view of the fact that witness Andrews was impeached, and he shown to be a man unworthy of credit by reason of his denials of remembrance of three convictions of offenses under the laws of this State, which offenses it was shown positively by the records of the police court of the city of Detroit had been committed by him, it was impossible to further discredit the said witness Andrews before the jury or to render his testimony less worthy of belief, and that the allowing of the testimony of witness Miller, contradicting statements of Andrews, relating to his employment with the Michigan Central Railroad Company, could not prejudice the defendant in any way whatsoever, and that the permitting of such testimony does not constitute reversible error; this being further particularly true in view of the clear and explicit instructions of the trial judge upon the matter, as above set forth.”

We know of no rule of evidence which sustains the ruling that his recollection (or his truthfulness) could be contradicted by a private record, the contents of which were not shown by any witness to be a record of facts. It was hearsay testimony purely.

Requests were made to the court to charge the jury that, in order to warrant a verdict of guilty, each and every one of the jury must be convinced beyond a reasonable doubt of the defendant’s guilt. The charge of the court as given was as follows:

“This, gentlemen of the jury, is largely a case of circumstantial evidence. You are to take all the testimony in the case, all the various circumstances which have been testified to here by the various witnesses, and ask yourselves whether or not they satisfy you beyond a reasonable doubt that the defendant at the bar either himself or by or through another joined with him in an illegal agreement to commit this crime, the commission of which the defendant in some way aided, took and carried away this car, the personal property of Dr. Brady, without any color of right for so doing, and with felonious design to permanently deprive Dr. Brady of the possession of it. * * *
“Now, to recapitulate finally, gentlemen of the jury: Are you satisfied beyond a reasonable doubt that the defendant at the bar himself took and carried away the personal property of Dr. Brady, namely, this automobile, without any color of right for so doing and with the felonious design to permanently deprive him of the possession of it? Then he is guilty, if he did. If you are not satisfied of that, are you satisfied beyond a reasonable doubt that he, by or through another joined with him through an illegal conspiracy to commit this particular offense, did aid in the commission of it by the other and that other took and carried away this persona] property, this automobile of Dr. Brady, without any color of right for so doing and with the felonious design to permanently deprive him of the possession of it? Then the defendant is guilty, because, if he entered into an illegal agreement with some other person to commit a crime and in any way aided in the consummation of that illegal agreement, what one did is the act of both.”

The case of People v. Hare, 57 Mich. 505 (24 N. W. 843), is called to our attention. In that case, as was said in People v. Curtis, 97 Mich. 489, 490 (56 N. W. 925, 926):

“It does not appear that the court instructed the jury at all upon the subject, but, on the contrary, said that it was not the duty of the court to charge individual members.”

As stated in the opinion last referred to, it must be presumed that jurors are possessed of common sense. A reading of the portions of the charge of the trial court above quoted convinces us that it could not have been misunderstood by the jury and sufficiently apprises them of their rights and duties.

A request was made to charge the jury as follows:

“Now the respondent has taken the stand' and testified in his own behalf, and I charge you that his testimony is to be tested the same as that of other witnesses, and that, if rational, natural, and consistent, it may outweigh the testimony of all other witnesses.”

The request was refused and error is assigned thereon. We cannot escape the conclusion that it was error not to give this request or cover it in the general charge, under authority of People v. McArron, 121 Mich. 1 (79 N. W. 944). Our attention is challenged by the prosecuting attorney to the dissenting opinion of Mr. Justice Grant in that case, when he said at page 44 of 121 Mich. (79 N. W. 959):

“The fourth request was sufficiently covered by the general charge in regard to the credibility of witnesses. I see no reason why the respondent should have been singled out, and attention especially called to his testimony. We are cited to no case which holds that to be essential. The language of the request would apply equally to any other witness. Where conviction depends mainly upon one witness for the people, such an instruction in regard to his testimony would be a correct statement of the law, but such an instruction would sound strange when so applied. The jury were instructed that the weight of evidence was for them entirely. Every juror of average intelligence knows this, without being so instructed, and also knows that he can believe or disbelieve any witness. When one on trial for a crime becomes a witness and is, by the instruction of the court, placed on the same basis as other witnesses, he has received all the protection in this regard which the law gives him. The same rules of evidence apply to him as to others, and the practice of calling special attention to one witness has been condemned.”

It will be noted that even this opinion was based upon the ground that the general charge as to the credibility of. witnesses sufficiently covered the request. No instructions were given in the instant case as to the weight to be given to the testimony of witnesses generally.

The other errors complained of relate to the charge of the court; and, while the learned judge did not follow the language of the written requests, he covered them sufficiently in his general charge. People v. Swartz, 118 Mich. 292 (76 N. W. 491); People v. Quimby, 134 Mich. 625 (96 N. W. 1061).

For the reasons stated, the conviction is set aside and a new trial granted. The respondent will be delivered to the custody of the sheriff of Wayne county.

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


author: Pee Cueiam.

text:
    ATTORNEY GENERAL, ex rel. BAUM, v. CITY OF SAGINAW.
    1. Mandamus — Equity—Pending Suit.
    On mandamus to compel the holding of a special election, as appointed by the charter commission of the city of Saginaw, the remedy will not be withheld because another suit in equity is pending wherein the validity of the “home rule” statute is attacked, the chancery court having issued no injunction or restraining order to' prevent proceedings thereunder.
    2. Same — Municipal Corporations — Elections.
    The claim of respondents that there is insufficient time to comply with all the statutory requirements is not a defense, but the provisions as to time for registration, etc., not being mandatory in their character, respondents will he compelled to act as near as may he in accordance with law.
    Mandamus -by the attorney general, on the relation of William B. Baum, against the city of Saginaw and others.
    Submitted October 30, 1913.
    (Calendar No. 25929.)
    Writ granted October 30, 1913.

      J. F. O’Keefe, for relator.

      A. Elwood Snow, City Attorney, for respondents.
   Pee Cueiam.

In this case application is made by the attorney general, on the relation of the charter commission of the city of Saginaw, for a mandamus to compel the common council of said city to take the necessary steps to hold a charter election on November 15, 1913, the date fixed for such action by said commission.

It is contended on behalf of respondents that they should not be compelled to proceed to an election at this time because an appeal is now pending in this court involving the question of the constitutionality of the home rule act, so called. Goodman v. City of Saginaw. No injunction nor restraining order was ever issued in said chancery cause, and the bill was dismissed October 18, 1913, since which time respondents have been at liberty to proceed with their labors, as directed by law. We can see no reason for holding that the mere fact that that .cause is now pending constitutes any valid excuse for delay.

It is further argued by counsel for respondents that at this time, October 30th, there can be no valid action taken by the respondents providing for an election on November 15, 1913, for the reason that the various statutory or charter provisions relative to elections cannot now be complied with.

In view of the provisions of section 26 of Act No. 279, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5467), we are of opinion that the provisions adverted to are not mandatory. We have held that boards and public officers may be compelled to act even after the time limited for action had* expired, where through a mistaken sense of duty they had refused or omitted to perform statutory duties. Attorney General, ex rel. Graves, v. Mayor, etc., of Adrian, 164 Mich. 143 (129 N. W. 44).

Upon the argument it was made to appear to.the satisfaction of the court that sufficient time yet remains to provide for registration, and that no elector will be denied his right of franchise by reason of the shortening of the time. It is to be presumed that respondents will in good faith at once proceed to take the necessary steps to provide all reasonable opportunity to register “as near as may be” to the charter provisions.

Respondents make as part of their return the following statement:

“These defendants admit the allegations in the third paragraph of said petition, with the exception that they deny that the charter commission formulated and adopted a revision of the charter of the city of Saginaw as provided by Act 279 of Public Acts of 1909; this denial being made because of the decision of this court in the case of Eikhoff v. Charter Commission [176 Mich. 535 (142 N. W. 746)].”

We are of opinion that the language relied upon in the Eikhoff Case is not controlling. The question now involved was not in issue there. The point there under consideration was whether or not the charter commission was a legislative or other body possessing the power of amotion.

The writ will issue, but without costs.