author: Grant, J. Per Curiam.

text:
    NAGELSPACH v. SHAW.
    1. Vendor and Purchaser — Bona Fide Purchaser — Lessee in Possession — Notice to Purchaser.
    Where a father, having no family, occupies land of which he is the owner in fee simple, with his son and family, the son having no claim of record, the presumption is that the possession is that of the father, and the occupancy of the son with the father is not notice to a purchaser from the father of a claim by the son of a life lease from the father.
    3. Estoppel — Claim as Lessee — Failure to Assert.
    Where a son, occupying with his father land belonging to the father, when asked by a prospective purchaser if he had any claim, answered that he had not, and subsequently attorned to the purchaser, he cannot, when summarily proceeded against by the purchaser to obtain possession, set up a claim that he had a life lease from his father and is entitled to possession thereunder.
    Error to Wayne; Brooke, J.
    Submitted October 10, 1906.
    (Docket No. 49.)
    Decided December 3, 1906.
    Rehearing denied April 2, 1907.
    Summary proceedings by Ernest W. Nagelspach against John Shaw for the possession of certain real estate. There was judgment for complainant, and defendant brings error.
    Affirmed.
    This is a summary proceeding, brought under the statute, to recover possession of a house and lot in the city of Detroit. James Shaw, the father of defendant, had owned them for over 30 years, and occupied them as his homestead. He was 74 years old. His wife was dead. Defendant, John, with his wife and children, lived and occupied the house with him. The title of record was in the father. The father, intending to leave Detroit, sold and conveyed the land by proper deed to the complainant in October, 1904. James represented to complainant that his title was clear, and delivered to him an abstract of title. After causing the same to be properly examined, and after visiting the premises, he purchased, paid for them, and received his deed. James took the complainant through the house; the defendant and his wife being there at the time. Complainant knew nothing about the arrangements under which defendant with his family occupied the premises with the father. Before paying for the premises, complainant went to the house, and asked. defendant whether he had any claim upon them, to which defendant replied that he had not. Defendant told complainant it was satisfactory for him to move in, saying:
    “I will be a good deal happier to pay $10 or $15 a month rent, than to live here on his premises, and to have him over my charge. All I want you to do is to give me 30 days.”

      Complainant further testified that defendant promised to assist him in moving. A day or two after that James Shaw came to complainant, and told him that John would like to have a receipt for the 80 days that complainant had promised him; that complainant gave him a receipt, and James paid $15 in behalf of John, took the receipt to the house, and delivered it to John’s wife, who put it on a dish in the pantry. John admits that he saw it there. At the expiration of 30 days, complainant demanded possession of the premises, which the defendant refused, claiming that he had a life lease of the premises from his father. Such is the case made by the complainant’s evidence. Defendant testified that at the solicitation of his father he moved into these premises in April, 1900, under a statement from his father that he would give him a life lease of the place; that such lease was made out, executed, and delivered, and afterwards returned to his father for safe keeping. His father admits drawing up a paper intended for a life lease to take effect at his death, but that it was never delivered, was retained by him, and subsequently destroyed. Defendant also denied the conversation with complainant, and disputed his father’s testimony on some points.
    The court instructed the jury that the controversy between defendant and his father as to the life lease was of no consequence in the case; that it was the duty of defendant, if inquiry was made by complainant, to tell him of any claim he had, if any, in the premises; that if defendant did inform complainant of his claim through the life lease, and complainant purchased after notice of that fact, he did so at his peril, and that title could not be determined in this summary proceeding. But :if defendant and his wife made no claim, and “ simply desired to have 30 days in which to move, and got a receipt for the rent in confirmation of that arrangement, then they have no rights in this case.” Verdict and judgment for the complainant.

      Dalton, Mertz & Renaud (Arthur D. Maguire, of counsel), for appellant.

      Julian 6r. Dickinson, for appellee.
   Grant, J.

(after stating the facts). The learned circuit judge was correct. The existence and validity of title by lease was not involved. Defendant had no title of record. His father was the owner in fee simple. His occupancy with his father was not notice of any claim of title or right in the son. Title and occupancy, by the father implied that possession was that of the father rather than that of the son. The presumption would be that the son was living with the father under the father’s possession, and not that the father was living with the son under the son’s possession distinct from that of the father. Under the complainant’s evidence that was the arrangement. The father was intending to leave immediately. The son desired a reasonable time in which to vacate. If defendant made that arrangement, and complainant bought and parted with his money under those circumstances, the defendant is not at liberty in this suit to set up in defense the lease with his father and possession under it. The jury found that complainant’s version of the transaction was the true one, that defendant had recognized complainant’s title as valid, had recognized him as his landlord, and that defendant’s right of possession had terminated. The finding is conclusive of the case. The time for defendant to speak was when complainant asked him if he had any claim.

Judgment affirmed

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

ON MOTION FOR REHEARING.

Per Curiam.

In view of the application for a rehearing, we deem it proper to say that our opinion was not intended to deprive the defendant of any remedy by bill in equity to enforce his alleged lease, or any other remedy he might deem it advisable to pursue. Mr. Nagelspach in his complaint based his right of action upon the relation of landlord and tenant. • The jury found that the relation existed. If it did exist the complainant was entitled to recover. If it did not, then he was not entitled to recover. With this explanation of our former opinion, the application for a rehearing is denied.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    GOEHREND v. PERE MARQUETTE RAILROAD CO.
    1. Appeal and Error — Action Against Carrier — Review — Theory Below.
    Where, in an action against a carrier for delay in transporting live stock, the declaration counts neither upon a breach of duty to deliver to a proper connecting carrier, nor upon the responsibility of defendant for the acts or omissions of a connecting carrier, such questions are not open for review on error. •
    2. Carriers — Live Stock — Delay in Transporting — Connecting Carrier — Liability op Initial Carrier.
    In an action against a railroad company for delay in transporting live stock, evidence examined', and held, insufficient to show that the railroad upon which the delay occurred was not a connecting carrier responsible alone for the acts of its servants and for the service which it gave to shippers of freight.
    Error to Osceola; Rose, J.
    Submitted October 11, 1906.
    (Docket No. 64.)
    Decided December 3, 1906.
    Case by August C. Groehrend and Edwin Wood against the Pere Marquette Railroad Company for failure to properly transport certain live stock. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.
    The declaration contains two counts. In the first it is alleged: That defendant was engaged in operating a railroad from Reed City to Port Huron, in this State, and was engaged in transporting freight over and along said route for hire, and in delivering the same, whenever necessary, to connecting carriers. That plaintiffs delivered to defendant certain live stock which it undertook and agreed to transport, by itself and by connecting carriers, with reasonable safety and dispatch, to East Buffalo, in the State of New York. That defendant’s duty in the premises was not performed, in that it carelessly and negligently failed and neglected to transport said animals to their said destination in as expeditious a manner as it might and should have done, failed and neglected to transport them within the time that it usually conveyed like freight, negligently permitted the animals to be delayed, in an unusual and unreasonable manner, for an unreasonable period of time, at divers places along said route, failed and neglected to feed and water said animals in transit or to provide a place and opportunity for plaintiffs to feed and water them, by reason of all of which plaintiffs were damaged. The second count,- referring to the conditions and circumstances stated in the first count, alleges negligent delay in transportation of the animals and breach of the duty imposed upon railroad companies by section 11742, 3 Comp. Laws, with resulting damage to the plaintiffs. The plea was the general issue.
    The cause coming op to be tried, one of the plaintiffs, the only witness sworn, gave testimony tending to prove that the animals were carried by defendant to Sarnia, in,. Canada, and the car there delivered to the Lake Erie & Detroit River Railroad Company, which transported it to St. Thomas, from which point it was taken via the Michigan Central Railroad to its destination. That the delays and other breaches of alleged duty complained about occurred after the car had been delivered at Sarnia. That plaintiffs had for many years been shipping’live stock from Reed City to East Buffalo; by defendant’s road to Port Huron or Sarnia, thence, by the Grand Trunk Railway, to destination, and that shipments had never been, in the way bills, or bills of lading, routed. That shortly before the shipment in question was made, defendant’s station agent at Reed City stated that the Pere Marquette had acquired control of the Lake Erie & Detroit River Railroad, and asked witness to ship by that route. Witness declined to do so. 'That one shipment intervened this conversation and the shipment in question. Whether this intervening shipment went by way of the Grand Trunk, witness could not positively state, but his recollection was that it did. That no conversation took place concerning the route of the last shipment, but the plaintiff, who accompanied the cattle, knew when the train reached Saginaw that defendant did not intend to deliver the car to the Grand Trunk Railway Company. An offer to prove that upon the return of the witness to Reed City he had a further conversation with the local agent of defendant, and with its traveling freight agent, in which witness was solicited to ship by the Lake Erie & Detroit River Railroad, and was told that defendant then had its own line to East Buffalo, was excluded. There was some other evidence received, and some which was excluded, tending to show that witness heard and observed things indicating to him that the defendant operated or controlled the Lake Erie & Detroit River Railroad. The contract was in terms:
    “ Eor transportation from Reed City to destination, if on the said carrier’s line of railroad, otherwise to the place where the said live stock is to be received by the connecting carriers for transportation to or toward destination.”
    No connecting line was named. Upon the back of the bill of lading was the following:

      “ The company does not agree to transport live stock by any particular train, within any specified time, nor in time for any particular market, and agents must not give receipts containing such guarantee. Neither will the company be responsible for any loss or damage occurring by the refusal, failure or inability of a connecting line to receive and forward the stock after tender of delivery.”
    The trial j udge, at the conclusion of plaintiff’s testimony, directed a verdict for the defendant.

      Charles A. Withey, for appellants.

      Stevens, McPherson & Bills, for appellee.
   Ostrander, J.

(after stating the facts). It is argued for. appellants that (1) defendant was shown to be in control of the Lake' Erie & Detroit River Railroad — that said road was a part of its own line; (2) no routing appearing on the bill of lading, and no notice of any change having been given to plaintiffs, the course of dealing of the parties supplied whatever was necessary to establish the route, and the contract therefore was to forward the shipment as others had been customarily forwarded, by way of the Grand Trunk Railway; (3) no particular route having been specified, it was defendant’s duty, in any event, to forward by a reasonably direct and properly furnished route.

The pleadings and the terms of the contract of shipment limit the discussion to the first of these propositions. No other appears to have been presented to' or considered by the trial court. It is clear that the declaration counts neither upon a breach of duty to deliver to a proper connecting carrier, nor upon the responsibility of defendant for the acts or omissions of a connecting carrier. If there was competent evidence tending to prove that the injuries complained about occurred on the line of defendant’s railroad, the case should have been submitted to the jury. The evidence pointed out is the conversation with the station agent before the shipment, the fact that the Pere Marquette and the Lake Erie & Detroit River Railroad companies occupied the same offices at Sarnia, the conversation, after the shipment, with the station agent and the traveling freight agent of defendant, the fact that defendant, through its station agent, afterwards refused plaintiffs’ cars to be run over the Grand Trunk Railway to East Buffalo, giving as a reason that they wanted stock shipped over their own road, and the fact that, disregarding the custom and the known wishes of plaintiffs, and without notice to them, the particular shipment was routed over the Lake Erie & Detroit River Railroad, which was 80 miles longer, and not furnished with conveniences for unloading and feeding and watering stock. The statements of the defendant’s station agent, made prior to the shipment, were detailed by the witness as follows:

“ Mr. Tobias informed me that the Pere Marquette Railroad Company had acquired control of the Lake Erie & Detroit River Railroad, I think that is the correct title of it, to St. Thomas, and had running rights over the Michigan Central to destination at East Buffalo; and that the officials wanted the stock shipped over their own line, over their own road, and I told him I didn’t think I could go around that way because it was a good deal farther and I couldn’t take the time, and couldn’t get there as quick as I could over the Grand Trunk, and that is the way the matter was left. I told him that I didn’t want it to go over the new line when I didn’t know I could make connections. This conversation was not more than a week or two before this shipment was made.”

The offer made to prove statements subsequent to the shipment was:

“We want to show that the local agenj; at Reed City, Mr. Tobias, and a traveling freight agent or soliciting agent for freight shipments for defendant railroad at that time personally solicited [plaintiff] to make his live stock shipments by the road he has named, from Port Huron in, and said the defendant now had its ,own line to Buffalo. We offer it for the purpose of showing that the defendant railroad had control of that line. We simply claim it is corroborative, that is all.”

I think it is not clear that a prima facie case might not have been made for plaintiffs by proof of the contract of carriage, the injuries and the damage, leaving defendant to show, if it could, that the injuries did not occur upon its line of railroad. The car was not routed, no connecting carrier was named, and theundertaking was to deliver at destination (East Buffalo), if on defendant’s line of railroad. No such rule is, however, asserted, and if it were, the reply might be well made that the case made for plaintiffs goes too far to permit its application. The declaration, inferentially, negatives the fact that defendant’s line of railroad extended beyond Port Huron. The evidence establishes the fact for this case that the same form Of contract had long been in use between the parties, and both had understood, and plaintiff asserts that in the instant case he understood, that a connecting carrier would intervene at Port Huron. Whether the defendant would be bound by a contract made by its agent which expressly or by necessary implication excluded the idea of a connecting carrier, or named one at St. Thomas, or at some other point, is not the question presented. In the light of the facts, it cannot be said that the agent of defendant, who made the contract, asserted, in and by the contract, that his principal owned or operated the Lake Erie & Detroit River Railroad. Nor for the same reason is defendant estopped to deny the fact of such ownership or control. Even when plaintiffs received information at Saginaw that it was intended that the car should not go forward by way of the Grand Trunk Railway, and had, as we must assume from the testimony, the opportunity and right to change the intended route, the reason given for not making the change is that the yardmaster of the Lake Erie & Detroit River Railroad Company at Sarnia said they would get them there (to destination) ‘ ‘ just as quick. ” It is not claimed that at this point plaintiffs (one of whom was in charge of the shipment) were doing more or less than dealing with a connecting carrier, although not with the usual one. Fairly stated, the case for plaintiffs is that for 15 years defendant’s line of railroad went no farther than Port Huron, that it had been recently, and just prior to the shipment in question, extended beyond Port Huron and towards, if not to, East Buffalo; and it is attempted to prove the fact of the extension and consequent liability for the injuries occurring beyond Port Huron on the route which was followed. No presumptions aid plaintiffs, since the diverting of traffic to one rather than to another connecting line may be reasonably accounted for otherwise than by the theory that the initial carrier owns or controls the road which is preferred. The right of the initial carrier to deliver to a connecting carrier of its choice, in the absence of directions from the shipper and of contract routing, is admitted. In the last analysis, therefore, the evidence of the fact attempted to be proved is to be found alone in the statements made by the agents of defendant. We are referred to no authority for the proposition that under the circumstances here disclosed the statements of the agent of a carrier may be- received to establish, against the. denial of the principal, the facts stated. But we need not, as we might, rest the case upon this ground alone. Assuming the facts stated by the agents to be true, they fail to prove that the Lake Erie & Detroit River Railroad Company was not a connecting carrier responsible alone for the acts of its servants, and for the service which it gave to shippers of freight.

The judgment is affirmed.

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


author: Hooker, • J.

text:
    SHAAF v. O’CONNOR.
    1. Taxation — Degree for Sale — Collateral Attack.
    A bill against the holder of a tax deed, to restrain an action of ejectment brought thereon, on the ground of payment of the tax upon which the decree was based, constitutes a collateral ' attack upon the decree, which cannot be permitted, no proceedings having been brought to set aside the sale within one year as provided by the statute. .
    2. Same — Tax Sales — Cancellation—Limitations.
    Whether section 143 of the tax law (Act No. 128, Pub. Acts 1901) precludes cancellation of a tax sale by the auditor general after the expiration of six months, quaere.
    Appeal from Sanilac; Beach, J.
    Submitted October 11, 1906.
    (Docket No. 59.)
    Decided December 3, 1906.
    Bill by Robert Shaaf and' others against William O’Connor, trustee, and James B. Bradley, auditor general, to restrain an action of ejectment, and to quiet title. From a decree for complainants, defendant O’Connor appeals.
    Reversed, and bill dismissed.

      F. S. Viets, for complainants.

      Albert McGlatehey, for appellant.
   Hooker, • J.

There is no substantial dispute about the facts in this case. They are as follows: In 1858, while the several parcels of land which are the subject of this litigation constituted one parcel, owned and occupied by Jarvis Hurd, a tax was levied against the land. Being returned delinquent, said Hurd caused payment to the auditor general of one-half of the tax, which payment was seasonable, and was accepted and entered upon the books of the department as payment and satisfaction for the undivided one-half of the land. Upon the tax sale the remaining one-half was offered for sale, when Hurd’s agent paid to the county treasurer the remaining one-half of said taxes, with all interest, costs, and charges, and the same was entered upon the books of the county treasurer and the auditor general’s office, and it appears and has at all times since appeared therefrom that said tax was fully paid. Subsequent taxes have all been seasonably paid.

In 1885 an undivided half interest in the land was bid in to the State at the annual tax sale for that year, and, not being redeemed, was held as State tax land until November 7, 1899, when the auditor general, acting under section 139 of the tax law (Act No. 169, Pub. Acts 1899), canceled the sale, for the reason that the law „of 1885 was not retroactive, and therefore would not support such sale. He thereafter included an undivided half of these lands in the petition for the foreclosure of tax liens of 1899 and prior years (see section 139), and a decree was duly entered without objection, and it was again bid in to the State at the annual tax sal© held in May, 1902, and on June 9, 1902, it was sold to William O’Connor, trustee, who, in due season, received a deed from the auditor general therefor, as is usual in such cases. Some time afterwards the statutory notice was served by O’Connor, trustee, upon the persons entitled thereto, and after waiting considerably more than the statutory period an action of ejectment was commenced by him to recover these lands.

The bill in this case was filed to restrain the prosecution of the ejectment case, to quiet the' title, to require O’Connor to execute and deliver a deed, and for general relief. Answers were filed by both O’Connor and the auditor general, the latter of whom,' while admitting the foregoing facts, justifies his omission to cancel the tax, upon the ground that he had no such authority, when applied to, more than six months having elapsed after the filing of proof of service of the statutory notice with the clerk. Defendant O’Connor appealed from a decree against him. The record shows that the auditor general’s petition asserted a lien based upon a readvertised tax. A decree followed, and sale was made and confirmed.

This is a collateral suit which can only be made to prevail by attacking the validity of the decree. The record shows to our satisfaction that the decree was an unjust one, for the tax had been paid, but we can only so determine by trying a question of fact that might have been tried in that case, and of which that decree was conclusive. This we cannot do, such decree not being subject to collateral attack. See Kneeland v. Wood, 117 Mich. 174; Peninsular Sav. Bank v. Ward, 118 Mich. 87, 94; Wilkin v. Keith, 121 Mich. 70; Haven v. Owen, 121 Mich. 51; Gates v. Johnson, 121 Mich. 663; Blondin v. Griffin, 133 Mich. 647; Rumsey v. Griffin, 138 Mich. 413; Hoffman v. Land Co., 144 Mich. 564.

We held in Hayward v. O’Connor, 145 Mich. 55, that “when the owner of land has notice — no matter how he obtains that notice — that his land has been sold for taxes, he must, if he desires to have the sale set aside by the circuit court, take proceedings within one year.”

Notwithstanding the hardship of this case, we cannot set aside this sale without overruling the settled law of the State. It is clear, however, that the auditor general, if applied to seasonably', should have canceled this sale; but such application was not made, if made at all, until the period of six months after proof of the service of the statutory notice had elapsed. In view, however, of the decision in the cases of Jakobowski v. Auditor General, 144 Mich. 46, and O’Connor v. Carpenter, 144 Mich. 240, we cannot say that section 143 (Act No. 128, Pub/ Acts 1901) precludes cancellation after the expiration of six months.

Without passing upon the question of whether complainants may yet obtain relief, through cancellation, we will reverse the decree, and dismiss the bill without costs to either party, of either court, and without prejudice to other remedies which complainant may choose to seek.

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


author: Blair, J.

text:
    GODKIN v. CORLISS.
    1. Taxation — Collection—Transfer—Process—Sufficiency.
    A statement by a township treasurer under section 3871,1 Comp. Laws, which avers “that there is no other personal property of said J. G. within said township from which collection [of said tax] can be made,” though not negativing the presence of other personal property in the township in the exact language of the statute, is equivalent in its legal import to the statutory provision and a sufficient compliance therewith to render the process fair upon its face and protect the treasurer to whom it is sent in executing it.
    2. Same — Payment Under Protest — Recovery.
    Where a valid tax, which it is the duty of the person assessed to pay, is collected by a city treasurer on a statement sent him from another treasurer under section 3871, 1 Comp. Laws, and the statement is of sufficient validity to protect the treasurer from liability for conversion of the property seized, under it, the taxpayer cannot recover the amount paid from the treasurer though paid under protest to release property seized.
    Error to Bay; Shepard, J.
    Submitted October 12,1906.
    (Docket No. 58.)
    Decided December 3, 1906.
    Assumpsit by John Godkin against Edward E. Corliss, city treasurer of Bay City, for taxes paid under protest. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Lee E. Joslyn, for appellant.

      Brakie J. Orr, for appellee.
   Blair, J.

Plaintiff brought suit against defendant, city treasurer of Bay City, to recover the amount of a personal tax assessed against his personal property in Doyle township in the county of Schoolcraft, which amount was paid by plaintiff, under written protest, to release his personal property in Bay City from a levy made by defendant under the authority of a statement made to him by the treasurer of Doyle township, pursuant to section 3871, 1 Comp. Laws. The declaration was on the common counts in assumpsit. The statement of the township treasurer duly signed, certified, and acknowledged .as required by the statute was as follows:

“The statement in writing of Frank Sandberg, township treasurer of the township of Doyle, in the county of Schoolcraft and State of Michigan, under and by virtue of section 3871 of the Compiled Laws of Michigan of 1897, showing: That, on the assessment and tax rolls of the township of Doyle in said county of Schoolcraft for the year 1904, one John Godkin was assessed for personal property and that the personal property of said John Godkin within said township was assessed to said John Godkin upon said assessment and tax rolls, and that the valuation thereof as assessed by the supervisor of said township and approved by the board of review thereof was ten thousand five hundred dollars and that the various taxes thereon and the total thereof as appears from the roll in the hands of said treasurer are as follows:

“State tax, $27.60; county tax, $109.25; township tax, $25.30; highway money tax, $47.50; school and one-mill tax, $151.00; special highway tax, $10.35; soldiers’ relief tax, $1.05. Total taxes, $372.05.

“That such personal property, consisting of lumber and lath, has been removed from such township since the assessment thereof, and that the taxes thereon have not been paid, and that no part thereof has been paid, and that there is no other personal property of said John Godlcin within said township from which collection thereof can he made.

“In witness whereof I have hereunto set my hand and seal this 28th day of January, A. D. 1905.

“Frank Sandberg,

*‘ Township Treasurer of Doyle Township. [ Seal. ] ”

Plaintiff gave evidence, which was uncontradicted, tending to show that, at the time the tax roll was placed in the township treasurer’s hands, plaintiff had personal property in that township worth more than four times the amount of the tax. The lumber, lath, and shingles, upon which the taxes were assessed, were removed from School-craft county prior to the 1st of December.

* The circuit judge directed a verdict in favor of defendant, and plaintiff brings the record to this court for review upon writ of error, insisting that a verdict should have been directed in his favor, for the following reasons:

First. The statement of the township treasurer did not comply with the statute, in that it did not contain an allegation that there was “ no other personal property sufficient in said Doyle township whereon the treasurer can levy and collect said taxes or any of them” and, therefore, did not protect the defendant, and his levy was a trespass.

Second. The statement of the township treasurer, even if fair upon its face and the levy made in pursuance thereof, would not confer upon defendant any interest in the property levied upon, or right to withhold the money paid him, but would only protect him against personal liability for making the levy, because the undisputed evidence showed that the township treasurer had no authority to make the statement. Citing: Beach v. Botsford, 1 Doug. (Mich.) 199; Le Roy v. Railway, 18 Mich. 233; McCoy v. Anderson, 47 Mich. 502; City of Muskegon v. Lumber Co., 86 Mich. 625, and other cases.

The statement of ■ the township treasurer did not negative the presence of other personal property in his township in the exact language of the statute, but the language used was equivalent in its legal import to the statutory provision and a sufficient compliance therewith to render the process fair upon its face and protect the defendant in executing it.

The statement was prima facie evidence of the validity of the tax therein named against the person therein named and * * * full and ample authority to the treasurer * * * to levy and collect the same in the same manner as other personal taxes are collected by him when spread upon his own roll.”

No attempt was made to question the validity of the tax, and the tax must be regarded as a lawful tax, which it was the duty of plaintiff to pay. If defendant had sold the property levied upon to collect the tax, he would not have been liable in trover for its conversion. Mogg v. Hall, 83 Mich. 576.

It necessarily follows that he was not liable in this action.

The judgment is affirmed.

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


author: Hookeb, J.

text:
    BARRON v. MYERS.
    1. Fraud — Misrepresentations—Value — Reliance on Representations.
    Though, a representation as to value, or as to future dividends on stock, is not a misrepresentation, being a mere opinion, and an action for fraud will not lie when the party-alleging the fraud did not rely on the statements alleged to be fraudulent, but on information derived from other sources, one guilty of fraud cannot escape responsibility by sending his victim to a confederate for an opinion, nor by inducing him to make an investigation which will not disclose to him, if it would to an expert, the falsity of the statement.

      2. Contracts — Rescission—Fraud—Laches.
    A bill to rescind a contract for the sale of mining stock and obtain cancellation of a deed to property conveyed in payment for the stock, hied shortly after discovery of the fraud inducing execution of the contract, is not barred by laches, there having been no change in defendant’s situation to his injury, though complainant visited the mines, assisted in selling stocks, participated in the reorganization of one of the companies, and one of the mines has been sold on foreclosure.

      S. Same — Placing in Statu Quo.
    A bill to rescind a contract for the sale of mining stocks is not barred by the fact that the stocks, which are tendered back, have decreased in value.
    Appeal from Macomb; Tappan, J., presiding.
    Submitted October 12, 1906.
    (Docket No. 54.)
    Decided December 8, 1906.
    Bill by Theodore Barron against Addie E. Myers and Merlin A. Myers to set aside a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      Byron B. Erskine (Alfred Lucking and Varnum J. Bowers, of counsel), for complainant.

      Silas B. Spier (Dickinson, Stevenson, Cullen, Warren & Butzel, of counsel), for defendants.
   Hookeb, J.

We are asked to reverse the decree for the complainant in this cause, upon four grounds:

(1) Upon the merits, it being contended that fraud has not been shown.

(2) Upon the ground of complainant’s delay, or laches, in asserting a right to rescind the contract.

(3) Upon the ground that defendant Addie E. Myers was a bona fide purchaser of the premises for value.

(4) That the defendants cannot be placed in status quo.

Merlin A. Myers and the complainant had dealings, whereby the former agreed to sell to the latter certain mining stock and bonds, and to take in part payment therefor, a business block in Mt. Clemens.- This trade was consummated, and complainant executed a deed of the premises to Addie E. Myers, wife of Merlin A. Myers, being requested to do so by Merlin A. Myers. A year or two later this bill was filed for rescission and cancellation. The learned circuit judge who heard the cause filed an elaborate opinion, followed by a decree canceling the deed and providing for an accounting between the parties, in conformity to the provisions of said decree. From this decree the defendants have appealed.

The Merits. We think a lengthy discussion of the facts unnecessary. It is enough to say that the testimony convinces us that, whatever the possibilities of making a productive mine out of either of these properties, Mr. Myers had no expectation that it would be done by the companies then organized, and that he was seeking to profit by selling stock, rather than by developing the property. In doing this he did not hesitate at misrepresentation, thereby acquiring a large and valuable property from the complainant, who received nothing that he could make of value in return. Many pages of brief are furnished us, attempting to apply well-settled doctrines of law to this case — e. g., that a representation as to value is not a misrepresentation, being a mere opinion, that the same may be said, as to promised dividends, and that an action for fraud will not lie when -the party alleging the fraud did not rely on the statements alleged to be fraudulent, in making the purchase, but on information derived from other sources — but in our judgment they should not rule this case. If it can be said that the complaining, party did not rely in whole or in part upon the false statement, the rule is as stated, but one guilty of fraud cannot escape responsibility by sending his victim to a confederate for an opinion, nor can he by inducing him to make an investigation which will not disclose to him, if it would to an expert, the falsity of the statement. Graham v. Moffett, 119 Mich. 303. See, also, Miller v. Curtiss, 27 Jones & S. (N. Y.) 127; Webber v. Jackson, 79 Mich. 175.

We think the case fully proved upon the question of fraud.

Mrs. Myers’ Good Faith. The learned circuit judge discussed at length reasons for concluding that Mrs. Myers was not a bona fide purchaser. These need not be repeated. There is much force in them, and we are convinced that the arrangement testified to, whereby the property was to be deeded to her, if there was any truth in it, was a mere sham, to enable the husband to retain the proceeds of his fraudulent contract. It was a barefaced proceeding, and the possibility of the truth and justice of Mrs. Myers’ claim are so immeasurably less than the probabilities of her collusion with her husband that we do not believe in it. See Webber v. Jackson, 79 Mich. 175.

Laches. Counsel urge with much insistence that the complainant waived his right to rescind his contract, and ‘must, therefore, be left to his action at law if he can now have any remedy. There are, perhaps, cases where laches may be a meritorious defense; as, for instance, where the fraud is constructive, and does not involve anything in the nature of deceit, and where the party asking rescission has, with full knowledge of the situation, chosen to retain the property. It is said in this case that Barron was a speculator, in the habit of handling stocks; that he engaged with Myers in selling stock in these mines; that he visited the mines and worked in or about them, and therefore must have known the truth concerning them, and the falsity of the alleged representation; and that he ■participated with Myers and others in a reorganization of one of the mines; and that it is now too late to rescind the contract. This claim is not, in our opinion, one that can be called meritorious. It has not occasioned any change in Myers’ situation to his injury. It is true that the mine has since been sold on foreclosure, as Myers probably saw that it would be sooner or later. This does not, of itself, necessarily prevent the application of the rule that laches will preclude relief, but, as it shows that rescission will not do an injustice to Myers, it removes such an obstacle to relief. It is true that Barron did engage to aid Myers in selling stock. He went to the mines and came back with extravagant ideas of their richness. He was active thereafter in impressing upon others belief in the mine and by his assertions of confidence aided in the swindling of his townsmen by Myers. We have no reason for saying that his statements were not honest, or that he had at that time discovered the falsity of the statements that had been made concerning the condition of the companies, or that the money which he and others had paid had gone to Myers, instead of to the company treasury, as he .had a right to suppose if would do. Apparently the full enormity of Myers’ duplicity was not discovered by him until the spring of 1904, shortly before he filed the bill in this case, if, indeed, he fully understood it then. The law does not require action to rescind before the defrauded person is reasonably certain that he has been defrauded. If he acts with reasonable promptness thereafter, it is sufficient. The law of laches should be used as a shield and not a sword.

Status quo. It is contended that complainant should fail in his suit, for the reason that he cannot place the defendants in the same situation that they were in before the transaction. We may eliminate Mrs. Myers from this equation, because we are satisfied that she was a mere tool of .her husband, and, if she assumed any obligation, it was collusive and fraudulent. Her obligation to the complainant to pay the mortgage outstanding will be removed by the decree in this case. As to Merlin A. Myers, counsel claim that he cannot be required to accept the stock and bonds because they have fallen in value, whatever its cause may have been. The right to rescind does not depend upon a plaintiff’s ability to make his adversary whole pecuniarily. It depends on returning to him what he received, or, if this cannot be done, showing its worthlessness. The record shows a tender made to Myers, in May, 1904, and a refusal to consent to a rescission on his part. The bill was filed shortly after. At the time this tender was made, complainant offered to return all that he had received. After the commencement of the suit, he, with other bondholders of the Big Master mine, decided to reorganize the company and buy up the property which was under foreclosure. This was done with the approval and concurrence of Myers, and was the only way of saving the property, or any interest therein, to- the stockholders of that company, and ought not to deprive complainant of his right to cancellation.

The decree of the circuit court is affirmed, with costs, and the cause is remanded for further proceedings.

Carpenter, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


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    BILLS v. A. W. STEVENS CO.
    1. Appeal and Error — Assignments—Sufficiency.
    Assignments of error that the verdict was not warranted by the evidence, that the judgment was not warranted by the evidence, and that the court erred in rendering the judgment are insufficient and cannot be considered.
    2. Same — Exception to Rulings — Necessity.
    Where no exception was taken to the court’s refusal to take a case from the jury and direct a verdict, nor to the refusal of. the court to grant a motion for a new trial, the rulings are
    • not reviewable,
    3. Principal and Agent — Sales ®n Commission — Contract— Construction.
    Where a contract creating an agency for the sale of machinery on commission provides that commissions on sales shall be payable as the notes, securities, or other proceeds of sales are paid in money, a sale in consideration of which the employer takes certain secondhand machinery, which he afterwards sells for other machinery, cash, and securities, entitles the agent to the agreed commission on the amount for which the first lot of secondhand machinery is sold without waiting until the securities taken therefor are realized upon or the machinery taken in exchange is sold.

      Error to Shiawassee; Miner, J.
    Submitted October 12, 1906.
    (Docket No. 80.)
    Decided December 3, 1906.
    Assumpsit by Seward A. Bills against the A. W. Stevens Company for commissions on the sale of certain machinery. There was judgment for plaintiff, and de- ' fendant brings error.
    Affirmed.
    Plaintiff, acting under an agency contract, sold, as agent for the defendant, a Wisconsin corporation, machinery of the value of $3,078, and by and with the advice and consent of the State agent of defendant and under his instructions accepted in part payment secondhand machinery at a value of $1,103. The remainder of the purchase price was evidenced by promissory notes, secured by a chattel mortgage upon the machinery sold. The machinery sold was shipped to the vendee in charge of an agent of defendant, who took from the' vendee the notes and chattel mortgage and the secondhand machinery. None of the notes were paid, the mortgage was foreclosed, and the property mortgaged was again recovered by defendant. It sold the secondhand machinery for $850, accepting in payment for it an engine valued at $300, cash $375, with the balance well secured. It is undisputed that some time after the original sale plaintiff offered to accept from the defendant $100 in full for his commission upon that portion of the selling price represented by the secondhand machinery, provided said $100 should be paid to him at once, or within a short period of time. A commission certificate for $100 was made out and sent to plaintiff, but it was made payable when the first note given upon the original sale and secured by the chattel mortgage should be paid. Whether this commission certificate was accepted by the plaintiff is matter of dispute; defendant asserting that it was so accepted, and plaintiff that he did not accept it, but wrote to defendant, refusing to accept it as it was drawn, and demanding a certificate for the contract commission. Plaintiff did retain the certificate, and some two years later produced it at the trial of this cause. The agency contract provides for an agent’s commission on time sales, not exceeding three seasons, of 25 per cent., and that—
    “ Commission on machinery sales shall be payable as the notes, securities, or other proceeds of sales are fully paid in money. * . * * It is agreed that when machines are sold for cash the commission shall be paid in cash, and when sold on time the commissions on each sale shall be paid from the collection of proceeds pro rata when the same are paid in full as above stated. As evidence of the amount of commission other than cash, the company will issue and deliver a nonnegotiable certificate, payable in Marinette, Wisconsin, setting forth the amount contained in each note and when such note is due, which shall bear the same number as the note. * * * No commission shall be earned or payable on orders not filled, or on goods returned, taken back, foreclosed, abandoned, condemned, or bid in by the company upon sale on execution, attachment, or foreclosure, or taken by the company in settlement of any note, notes, or parts thereof, given therefor.”
    The plaintiff declared upon the contract for the commission earned thereunder, setting out the facts, and upon the common counts in assumpsit. A bill of the particulars of plaintiff’s demand was filed, containing, among other items, the following:
    “ To moneys received by the defendants for the plaintiff, by the sale of one Birdsall traction engine, No. 2,514, being the engine taken in exchange (by the plaintiff, and at the request of the defendant) for the machinery sold to Julien Miller, $212.50.”
    The plea was the general issue. The cause coming on to be tried before the court and a jury, two questions of fact were submitted to the jury, viz.: First, whether or not plaintiff had agreed to accept $100, according to the terms of the commission certificate sent him, in lieu of his commission upon the sale by defendant of the secondhand machinery; second, whether defendant had sold the secondhand machinery which it received as part payment for the original machinery and had received money therefor or securities which it accepted as money, and the jury were instructed that, if they found for the plaintiff on the first question and also upon the second question, they were to return a verdict for plaintiff in substance for 25 per cent, of the amount for which the secondhand machinery was sold by defendant, less any items of cost and expense which, by the terms of the contract, plaintiff had agreed to pay. The jury returned a verdict for plaintiff for $212. Defendant was granted a stay of 20 days in which to move for a new trial or settle a bill of exceptions. On the twenty-eighth day a motion for a new trial was made, which the court declined to consider and denied, not upon the merits, but because not made in due season. Six errors are assigned. They are:
    “1. The verdict of the jury was not warranted by the evidence.
    “2. The judgment of the court was not warranted by the evidence.
    “ 3. The court erred in refusing to take the case from the jury and grant defendant’s motion tg direct a verdict for the defendant at the close of the plaintiff’s testimony.
    “4. In rendering a judgment in favor of the plaintiff and against the defendant.
    “5. In charging, ‘But if you find that the defendant-sold the machinery which he received as part payment for the original machinery, and received money therefor, or securities which it accepted as money, then the plaintiff would be entitled to recover his commission on the amount so received by the company,’ and to what the court said to the jury on this subject.
    “6. Refusing to grant defendant’s motion for a new trial.
    “And for the errors aforesaid, the defendant says the judgment entered in said cause should be reversed and vacated.”

      T. Rogers Lyons, for appellant.

      Martin V. B. Wixom, for appellee.
   Ostrander, J.

(after stating the facts). It is apparent that errors assigned as Nos. 1, 2, and 4 are badly assigned and cannot be considered. No exception was taken to the court’s refusal to take the case from the jury and direct a verdict for the defendant, which fact would dispose of the third assignment; but, if it had been otherwise, material facts were in. dispute and the case was a proper one for a jury. No exceptions were taken to the refusal of the court to grant defendant’s motion for a new trial, for which reason the error assigned as sixth is not for discussion.

The fifth assignment of error raises the question whether, under the contract, properly construed, a sale by defendant of machinery which it had received at a fixed and agreed price in exchange and part payment for the original machinery, although such second sale was not made for cash, entitled plaintiff to recover his commission as upon a sale for cash. The provisions of the contract which relate to this subject have been stated. There is no express provision covering the question of commissions upon sales of machinery taken in exchange for original sales, unless it is the one reading, ‘ ‘ Commission on machinery sales shall be payable as the notes, securities, or other proceeds of sale are fully paid in money.” Applying this provision to the facts found by the jury, we are of opinion that the charge of the court upon the subject was favorable to the defendant, since it limited the recovery to a percentage of the amount for which the secondhand machinery was sold, and made it depend, also, upon the fact that the company received upon such sale money or securities which it accepted as money. It cannot be said there was no evidence from which the jury could have found this last-mentioned fact. The construction placed upon the contract by counsel for the defendant is that, as defendant has collected but $375 in money upon the sale of the secondhand machinery, plaintiff was entitled to recover no more than 25 per cent, of this sum, and must wait before recovering any further sum until defendant has realized upon the securities which it accepted and has sold for cash the engine which it took in the second exchange. There is room for construing the contract to mean that the agent is entitled to no commission until defendant has at some price parted with the property which it received in exchange upon the original sale; but, having sold it to persons of its own selection upon terms fixed by itself and accepted at such sale something other than money, it should be held to have fixed thereby the basis for reckoning the agent’s commission. This construction is aided by the fact that the provisions of the contract which deny to the agent all commission in case he sells machinery to an irresponsible person, or to a person who for any reason cannot be forced to pay the .purchase price, seem to be intended to secure care and inquiry upon the part of the agent before making sales. His diligence and good judgment in that behalf affect his commission. In case of a sale of the machinery taken in exchange upon an original sale, no action of the agent is involved. He is not consulted, and it may well be said that the defendant, in making such second sale, in fixing the price at which the property shall be sold, and in determining the method of payment, has also determined the sum upon which the agent’s commission shall be paid.

The judgment is affirmed.

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


author: Grant, J.

text:
    HUNT v. UNITED STATES ACCIDENT ASS’N.
    1. Insurance — Accident Insurance — Construction of Policy— Voluntary Exposure to Danger.
    An exemption in an accident policy of liability for injuries resulting from “voluntary or unnecessary exposure to danger,” means cases in-which there is a realization that an accident will in all probability result, and an injury follow, from the action about to be taken, and the danger of injury must be obvious.

      2. Same — Liability on Policy — Negligence of Insured.
    A broken ankle caused by insured putting out his foot to prevent his running against a wall while playing indoor baseball, held, covered by an accident policy exempting insurer from liability for injuries resulting from “voluntary and unnecessary exposure to danger,” notwithstanding insured could have stopped before reaching the wall.
    Error to Kalamazoo; Adams, J.
    Submitted October 16, 1906.
    (Docket No. 85.)
    Decided December 3, 1906.
    Assumpsit by George W. M. Hunt against the United States Accident Association on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.
    Plaintiff, 36 years of age, was engaged in playing a game of indoor baseball in the gymnasium of the Young Men’s Christian Association. The floor was smooth and slippery. The game is played with a soft ball, about twice the size of an ordinary ball. Plaintiff was batting, and, having struck the ball, ran to first base, 20 feet from the home plate. The side wall of the gymnasium was between 6 and 10 feet beyond the first base. The pitcher caught the ball, tossed it at plaintiff, and touched him, before he could Teach the first base. He ran beyond the base, and put out his foot and hand against the wall, which he had been in the habit of doing, to stop himself. His ankle was broken. He had a policy in the defendant company. In his application plaintiff agreed that the benefits under the policy “ shall not extend to or cover * * * voluntary or unnecessary exposure to danger.” The court directed a verdict for the defendant, holding that the accident was the result of an involuntary and unnecessary exposure to danger. He based his direction upon the following testimony, given by plaintiff upon cross-examination :
    “ Q. Now, you were running so hard that you could not stop yourself until you ran against the wall; that was the fact, was it ?

      “A. W ell, I would not say as to that.
    “ Q. Why didn’t you stop, if that was not a fact ?
    “ A. Oh, I was feeling good. I felt like running.
    “ Q. Felt like running against the wall ?

      “ A. Not necessarily.
    “ Q. Well, you saw the wall, didn’t you ?

      “A. Yes.
    “ Q. You knew you were 85 feet away from it, where you stood ?

      “A. Well, sir, in that neighborhood, I suppose.

      “ Q. You were running so hard that you'could not stop yourself until you ran into the wall ?

      “ A. Oh, I might, if I had tried.
    “ Q. Why didn’t you ?

      “A. I don’t know why I didn’t. It wasn’t necessary.

      “ Q. What’s that?

      “A. I don’t know why I didn’t. I didn’t, though.
    “ Q. You didn’t think it was necessary to stop when you were running, to prevent your running against the wall, to prevent yourself running against the wall ?
    “ A. I was not running very hard.
    “ Q. Why did you run into the wall, if you were not running very hard ?
    “ A. Oh, that was just the way I had of stopping.

      “Q. What?

      “A. That was just the way of stopping, was all.

      “ Q. The wall stopped you ?

      A. Yes.

      “ Q. You didn’t stop at all ? You didn’t stop yourself at all? You ran right into the wall ?

      “ A. You might put it that way; yes.
    “ Q. Well, that is the fact, isn’t it ?

      “A. I didn’t stop until I struck the wall.”

      Marvin J. Schaberg, for appellant.

      Thomas A. E. Weadock, for appellee.
   Grant, J.

(after stating the facts). That negligence which would defeat a plaintiff in an action for damages on account of the negligence of a defendant finds no place as a defense in the law of insurance against accidents. Such contracts must be shorn of much of their value if ordinary contributory negligence could be interposed as a defense. Thoughtless and inconsiderate acts are some of the very things which these policies are designed to cover. One might easily ascertain whether his gun was loaded before he undertook to clean it. The hunter, in going through the brush, or getting over a fence, or rowing in his boat, should be careful to handle his gun so as to prevent accident. One climbing a ladder should see that the rounds were sound and securely fastened. Ordinary prudence would require these precautions, but hundreds of accidents happen because they are not taken. The term “voluntary exposure to danger” means a realization that an accident will in all probability result, and an injury follow, from the action about to be taken. The danger of injury must be obvious.. That point has been decided in this court in Johnson v. Accident Co., 115 Mich. 86 (40 L. R. A. 440), where we said:

“The term ‘ voluntary exposure to unnecessary danger,’ as used in an accident policy exempting the insurer from liability for injuries caused by such exposure, means a conscious or intentional exposure, involving gross or wanton negligence on the part of the insured.”

This is the well-established.rule. Fidelity & Casualty Co. v. Sittig, 181 Ill. 111 (48 L. R. A. 359); United States Mut. Accident Ass’n v. Hubbell, 56 Ohio St. 516 (40 L. R. A. 453); Rustin v. Insurance Co., 58 Neb. 792 (46 L. R. A. 253); Fidelity & Casualty Co. v. Chambers, 93 Va. 138 (40 L. R. A. 432); Manufacturers’ Accident Indemnity Co. v. Dorgan, 58 Fed. 945 (22 L. R. A. 620); Burkhard v. Insurance Co., 102 Pa. 262; Champlin v. Assurance Co., 6 Lans. (N. Y.) 71; Follis v. Accident Ass’n, 94 Iowa, 435 (28 L. R. A. 78); Schneider v. Insurance Co., 24 Wis. 28.

Plaintiff did not anticipate injury from doing what he had done before, and what others have repeatedly done. There was no obvious danger of injury. Granting that he might have stopped, we cannot say that there would not have been as much danger in trying to stop upon a slippery floor as in running against the wall. A jury would be justified in finding that the plaintiff had no anticipation of an accident, and did not realize that there was any danger. Even if he were careless, and might have avoided running against the wall, but, in doing so did not realize any danger, he was entitled to recover. The learned circuit judge was in error in directing a verdict for the defendant.

Judgment reversed, and new trial ordered.

Carpenter, C. J., and McAlvay, Blair, and Moore, JJ., concurred.


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    DELANEY v. MANSHUM.
    1. Dower — Protection of Bight — Suit by Dowress — Necessity of Assignment — Parties.
    A widow may maintain a suit to enjoin a continuing trespass on land in which she has a dower right without waiting for the assignment of dower and without joining the other tenants.
    2. Same — Bar of Dower — Gonyeyanoe by Husband.
    No contract of sale or conveyance made by the husband without the signature of the wife will operate to deprive her of her dower.
    3. Same — Property Subject — Growing Trees.
    Growing trees are a part of the realty, so that a widow is entitled to dower in them.
    4. Same — Conveyance by Husband — Effect. .
    All rights of a vendee to whom a husband sells any part of the realty, trees, gravel, clay, or mineral, during his lifetime cease at his death unless the wife joined in the conveyance.
    Appeal from Kent; Perkins, J.
    Submitted October 17, 1906.
    (Docket No. 90.)
    Decided December 3, 1906.
    Bill by Ellen Delaney against Evart J. Manshum and Louis Meier to enjoin a trespass. Defendants filed an answer in the nature of a cross-bill claiming contract rights in certain timber. From a decree for complainant, defendants appeal.
    Affirmed.
    This case is before us upon a decree rendered upon the pleadings consisting of complainant’s bill, the answer thereto coupled with a cross-bill, replication to defendants’ answer, answer by complainant to defendants’ cross-bill, and replication 'by defendants to complainant’s answer. Complainant in her bill alleges that she is the owner in fee simple of a piece of land 80 rods long and 2 wide, describing said strip; that she, William, Nellie, Margaret Delaney, and Mary Murphy are the owners in fee simple of 40 acres of land, describing it; that said owners, including complainant, instituted summary proceedings under the statute against the Michigan Elm Hoop & Lumber Company before the circuit court commissioner to recover possession of said 40 acres; that a judgment was rendered therein against said company for the restitution of said 40 acres; that an appeal, was taken by said company to this court and is now pending  that on November 15, 1904, the defendants in this case broke and entered said narrow strip of land, breaking the lock and tearing down the gate for the purpose of cutting and hauling away timber and trees from said 40; that in said suit a restraining order was issued, restraining the defendants from cutting the timber; that said restraining order was dissolved as to these defendants because they were strangers to said suit at law, and claimed to be the owners of the timber on. said 40 acres and were lawfully in possession.
    After the restraining order in such suit at law was dissolved, the complainant filed this bill for an injunction against the continuing trespass and the cutting of the timber. The bill was duly verified, and prayed for an answer without oath. The defendants filed a sworn answer setting up the contract between Kerr Delaney, the husband of complainant, for the sale of the timber on said 40 acres, the assignment of said contract to the defendants, their possession under it, the necessity of a passage over this narrow strip to obtain access to said 40, and its previous use for that purpose. Defendants’ answer admitted that complainant was the owner of said narrow strip of land as the survivor of herself and her deceased husband, who died in October, 1903; that said strip of land was purchased in 1877 for the purpose of obtaining access to said 40. They admitted entering upon the 40 acres, cutting the trees and using the narrow strip for a passageway for themselves and teams.
    The answer to the cross-bill denied that the defendants obtained any right in or to said premises by reason of the above-mentioned contract and assignment thereof to them.
    A decree was entered upon these pleadings permanently enjoining the defendants from trespassing upon the lands. in controversy.
    ' The contract between Kerr Delaney and the Michigan Elm Hoop & Lumber Company, and the assignment thereof to the defendants herein, are as follows:
    “Grand Rapids, Mich., Oct. 8, 1902.
    “I, Kerr Delaney, have this day sold to the Michigan Elm Hoop Co. at Grand Rapids, Mich., all the timber except 30 cords that are reserved for said Kerr Delaney to cut out of the tops for 16 in. wood in all for $800.00. Cash $50.00 balance $750.00 to be paid before cutting timber. Timber located 2-^ miles southwest of Eisher, Mich., on Sec. 34.
    “ Kerr Delaney.”
    “ Auburn, Ind., Sept. 1, 1903.
    “We, The Michigan Elm Hoop & L. H. Co., hereby sell to Louis Meier & E. J. Manshum all timber and wood on tract, purchased of Kerr Delaney, located on Sec. 34, as shown in contract with Delaney, and the said Mich. Elm Hoop and Lumber Co., reserve all logs now cut, twenty-four trees, all of which are marked except three oaks, and except 30 cords of 16 in. wood reserved by Delaney and to be cut out of tops as per contract,' and the said Meier & E. J. Manshum to pay $175.00 cash and $175.00 on the 15th of November, 1903, receipt of $175.00 is hereby acknowledged.
    “ Mich. Elm Hoop & Lumber Co.,
    “ByMcCULLEN.
    “E. J. Manshum.
    “ Louis Meier.”

      Joseph Renihcm, for complainant.

      Dwight Goss, for defendants.

       The summary proceedings mentioned in the bill resulted in judgment for complainants, and defendant’s writ of error to review the same was dismissed because the judgment was not returned. (Delaney v. Michigan Elm Hoop & Dumber Co., 144 Mich. 351.)—Reporter.

   Grant, J.

{after stating the facts). Complainant is entitled to dower in the 40 acres. She is also the owner of the narrow strip of land as the surviving tenant by the entirety. Counsel for appellants in his brief says that there are two legal questions involved:

1. Can the defendants be enjoined from cutting the timber and wood on the 40 ?

3. Can defendants be enjoined from using the narrow strip for a passage ?

Both must be answered in the affirmative. The widow may maintain suit at law without waiting for the assignment of dower. Moody v. Seaman, 46 Mich. 74. If she may do this she may bring suit in equity without joining the other tenants to restrain the commission of waste.

No contract of sale or conveyance made by the husband without the signature of the wife will operate to deprive her of her dower. Richmond v. Robinson, 12 Mich. 193. The right of dower attaches to all the realty. Growing trees are as much a part of the realty as the soil in which they grow, the clay, stone, mineral, and other valuable deposits beneath the surface. Stout v. Keyes, 2 Doug. (Mich.) 184; Williams v. Hyde, 98 Mich. 152. The widow is entitled to dower in them all. In re Seager’s Estate, 93 Mich. 186. This right of dower will be jealously guarded by the courts. Bear v. Stahl, 61 Mich. 203, 214.

Whatever right the husband may have to sell and dispose of any part of the realty, trees, gravel, clay, or minerals, during his lifetime, while his wife’s right of dower is inchoate, all rights of the vendee in such contracts cease with the death of the husband, unless the wife joined in the conveyance. Many lands are valuable mainly for timber, minerals, etc. If defendants’ contention be sustained as the law, it would result in depriving widows of their dower in the most valuable part of realty. The Michigan Elm Hoop & Lumber Company and the defendants well understood that when they were buying these trees they were buying realty. They knew that the wife of Mr. Delaney had the right of dower. If they wished to get a valid title to any part of the realty, their only way was to secure a conveyance from the complainant.

Inasmuch as the defendants have no occasion to enter upon this land, except under the contract, it becomes unnecessary to discuss the other question.

Decree is affirmed, with costs.

Carpenter, C. J., and McAlvay, Blair, and Moore, JJ., concurred.


text:
    HARRIS v. PELLENZ.
    1. Sales — Delivery—Delivery to Agent.
    A delivery through carriers and a warehouseman to a dray-man, to whom the purchaser of goods has by written order directed the warehouseman to deliver all his freight, is a delivery to the purchaser, regardless of whether such purchaser ever actually receives the goods.
    3. Same — Delivery—Goods not Ordered — Acceptance.
    A shipment of 35 gallons of Montezuma Bitters, on an order for 10 gallons of Nectar Bitters, may be rejected by the purchaser, acting promptly, but where he does not deny receiving the invoice and bill of lading sent him by mail on the date of shipment, and a drayman with general authority to receive all his freight receives the goods, and no attempt at rejection is claimed, the rights of the parties are the same as. though the goods had been delivered to the purchaser in person, though he claims never to have received them.
    Error to Cheboygan; Shepherd, J.
    Submitted October 18, 1906.
    (Docket No. 101.)
    Decided December 3, 1906.

      Assumpsit by Marcus Harris against Joseph Pellenz for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Benjamin,& Quay, for appellant.

      Frost & Sprague, for appellee.
   Blair, J.

Plaintiff brought this action to recover for one-half barrel of “Montezuma Bitters,” containing 25^ gallons, shipped by plaintiff to defendant upon his order for 10 gallons of “Nectar Bitters.” Plaintiff proved the actual delivery of the bitters, through various common carriers and the warehouseman at the dock in Cheboygan, to Harry Hayden, a drayman, to whom defendant had by written order directed the warehouseman to deliver all his freight. The drayman paid the freight on the bitters, removed it from the warehouse at the dock, and his testimony tends strongly to show that he delivered it to defendant at his saloon; but defendant denied receiving it at any time. On the same day that plaintiff shipped the bitters, he mailed to defendant the bill of lading and invoice thereof in an envelope properly addressed and postage prepaid. Defendant did not deny receiving this envelope and contents. On motion of plaintiff’s counsel at the close of the testimony the court directed a verdict in favor of plaintiff, and defendant brings the record to this court for review upon writ of error..

Defendant relies upon the single assignment of error that the court erred “in granting plaintiff’s motion to direct a verdict for $58.38, being the value of the goods as claimed to have been delivered to defendant.”

We agree with the circuit judge in the conclusion that the evidence conclusively shows that the bitters were delivered to Hayden; that Hayden was the agent of defendant to receive any freight consigned to defendant, and not an independent contractor; and that delivery to him was, in the eye of the law, a delivery to defendant, regardless ■of whether he actually received the goods.

While defendant might have been justified in refusing to accept the goods, if he had. exercised .that right with reasonable promptness, the delay in this case has been such that he must be deemed to have accepted them as against the plaintiff, who was not responsible for his delay or his failure to receive the bitters.

Defendant having failed to limit the authority of his agent in receiving freight consigned to him, and plaintiff’s goods having been received by such agent, the rights of the parties must be held to be the same as though the ..goods had been delivered to defendant in person.

The judgment is affirmed.

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


text:
    LEWLESS v. DETROIT UNITED RAILWAY.
    Damages — Diminished Earning Capacity — Evidence— Supeioienoy.
    Two physicians examined the plaintiff in a personal injury case and detailed his condition, and plaintiff and his wife testified to his diminished capacity for doing his ordinary work. Plaintiff testified as to the amount of his annual earnings in his regular occupation, handling horses, and as to his inability to longer do such work. Held, sufficient evidence of what his diminished earning capacity was to justify an instruction authorizing damages therefor.
    Error to Oakland; Smith, J.
    Submitted October 18, 1906.
    (Docket No. 20.)
    Decided December 3, 1906.

      Case by Alexander Lewless against'the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant. '

      A. L. Moore, for appellee.
   Grant, J.

Plaintiff, while a passenger in one of the defendant’s cars, was injured in a collision. The injury, according to the testimony of himself, his physicians, and others, was quite serious. ' He recovered a verdict and judgment for $900. It is conceded that the judge correctly instructed the jury that the defendant was liable, and there is no claim of contributory negligence.

The record contains three assignments of error. The first is waived; the second is that the court erred in giving plaintiff’s sixth request; and the third, that the court erred in refusing to grant a motion for a new trial. The request complained of instructed the jury that the plaintiff was entitled to recover, in addition to damages for “his injuries, pain, and suffering,” damages for lost time and impairment of his earning capacity. The two objections made to this request are (a) that the proofs do not show that plaintiff’s physical condition during the winter following the accident was caused by the injury received in the accident, and (6) that there was no evidence what his “diminished earning capacity was.”

Without reciting it, there was ample evidence to justify the conclusion that his enfeebled physical condition was due to injuries received in the accident. There was also evidence of his diminished earning capacity. Two physicians examined him, and detailed his condition. Plaintiff and his wife testified to his diminished capacity for doing his ordinary work, viz., handling horses. He had been engaged in that business for some years, gave the amount of his annual earnings as near as he could state them, and testified to his inability to handle horses after the accident.

A new trial was asked on the ground of an excessive verdict. If the jury believed the evidence on the part of the plaintiff, the verdict is not excessive.

Judgment affirmed.'

Carpenter, C. J., and McAlvay, Blair, and Moore, JJ., concurred.


author: Carpenter, C. J.

text:
    PEOPLE v. De CAMP.
    1. Criminal Law — Evidence—Hearsay—Harmless Error.
    No prejudicial error results from permitting a witness to testify to a statement made by respondent’s wife, which indicated his guilt, where the testimony was not objected to at the time, was largely a repetition of the testimony of the witness on cross-examination, was partially adduced by counsel for defendant, was afterwards contradicted by the wife when on the witness stand, and would have been proper on rebuttal even undpr objection.

      2. Same — Trial—Argument op Counsel — Illustrations.
    On a trial for larceny, the prosecuting attorney called the jury’s attention, in argument, to the testimony of the wife of respondent that respondent was not out on the night of the crime, and then stated that he remembered trying a case involving the question whether a man should go to State's prison for life, and that his wife went on the stand and swore just as absolutely that her husband was not out on the night of the crime, though the next day she admitted that her testimony was an absolute falsehood. Held, not prejudicial, the argument appearing to have been used by way of illustration, and to have been of the same character as some of the language used by counsel for respondent.

      3. Same — Explanations.
    • It is not improper or prejudicial for the prosecuting attorney, in explaining discrepancies in the testimony of the prosecuting witness as returned by the examining magistrate and as given at the trial, to suggest that the justice, writing longhand, did not write everything the witness testified to on the preliminary examination.
    4. Witnesses — Impeachment—Former Conviction.
    It is competent, in a criminal case, as affecting respondent’s credibility as a witness, to admit records to prove that he has previously been convicted of a crime.
    5. Same — Evidence—Relevancy—Explanations.
    A justice of the peace having been called to prove respondent’s previous conviction of crime as affecting his credibility as a witness, was asked by respondent’s counsel if respondent did not pay the fine of $5 because “it was cheaper to get out of it that way than to go to trial.” Held, that the justice was properly permitted to testify that, at the time the fine was imposed, there was a conversation in the presence of respondent to the effect that the fine was made nominal at the request of the prosecuting attorney and out of consideration for respondent’s family.
    Error to Muskegon; Sessions, J.
    Submitted October 18, 1906.
    (Docket No. 51.)
    Decided December 3, 1906.
    Floyd De Oamp was convicted of larceny, and sentenced to imprisonment for not less than two nor more than five years in the State house of correction and reformatory at Ionia.
    Affirmed.

      Stephen H. Clink, for appellant.

      George S. Lovelace, Prosecuting- Attorney, and Charles B. Cross, Assistant Prosecuting Attorney, for the people.
   Carpenter, C. J.

Respondent was convicted of the crime of larceny. He asks us to set aside that conviction for several alleged errors (all of which he contends were committed by the trial court in denying his motion for a new trial) which we will state and consider.

1. Because Daniel James, a deputy sheriff, testified to a statement made by defendant’s wife which indicated defendant’s guilt. We think the trial judge properly answered this contention, and we adopt that answer. It is as follows:

“Testimony of the witness Daniel James, mentioned * * * in said motion, was not objected to at the time of its admission, was largely a repetition of the testimony of the witness upon cross-examination, was partially adduced by counsel for respondent in support of the theory of the defense, was later contradicted by Mrs. De Camp, when upon the witness stand, and would have been proper upon rebuttal even under objection.”

2. Because of the following argument made to the jury by the prosecuting attorney:

“ Oh, my brother says, his wife says he never got out of bed that night. How does she know ? Why, I remember standing up and trying a case one time when my brother was prosecuting attorney, years ago, and it was a case that involved a great deal more than this one, because it involved the question as to whether a man should go to State’s prison for life or not, and his wife went upon the stand and she swore just as absolutely and positively that her husband never got out of that bed that night. And yet, upon the very next day, this woman admitted that everything she had sworn to the previous day was an absolute falsehood.”

We think the trial judge properly answered this contention. That answer is as follows:

“The language of the prosecuting attorney complained of appears to have been used by way of illustration, and also appears to have been of the same character as some of the language used by counsel for defendant. The jury could not have been misled nor prejudiced thereby.”

3. Because, in the course of his argument to the jury, the prosecuting attorney, in undertaking to explain discrepancies between the testimony that the complaining witness gave on the trial and that given by him on the preliminary examination (as shown by the justice’s return), suggested that the justice, who wrote in longhand, did not write everything the witness testified to on the preliminary examination. We certainly cannot say that this was improper and prejudicial.

4. Because the court admitted records to prove that defendant had been convicted of a crime. Defendant was a witness, and this evidence was competent to affect his credibility. Helwig v. Lascowski, 82 Mich. 621 (10 L. R. A. 378), and cases there cited.

5. Because a justice of the peace, before whom defendant had been convicted of a crime and fined $5, was permitted to testify that, at the time said fine was imposed, there was a conversation in the presence of the defendant to the effect that it (the fine) was made nominal at the request of the prosecuting attorney and out of consideration for defendant’s family. This testimony was properly admitted. It tended to disprove the claim of defendant— indicated by questions his counsel had just asked the witness — that it was made clear by this same conversation that he paid this fine because ‘ • it was cheaper to get out of it that way than to go to trial.”

The conviction is affirmed.

McAlvay, Grant, Blair, and Moore, JJ., concurred.


text:
    PEOPLE v. WEST.
    Embezzlement — Evidence—Sufficiency.
    On a prosecution for embezzlement, evidence examined, and held, sufficient to sustain a conviction on the ground that respondent obtained certain corporate stock from the complaining witness as a broker, and not as a purchaser, as claimed by respondent.
    Exceptions before judgment from recorder’s court of Detroit; Phelan, J.
    Submitted October 18, 1906.
    (Docket No. 164.)
    Decided December 3, 1906.
    Hume H. West was convicted of embezzlement.
    Affirmed.
    Respondent was convicted of embezzling $1,215 in money, the property of George Ponthieu. Respondent advertised himself as a broker, with an office on Griswold street, in the city of Detroit. Ponthieu was a French chemist, in the employ of Parke, Davis & Co. Ponthieu owned 32 shares of the stock of Parke, Davis & Co., which he desired to sell. Seeing respondent’s advertisement as a broker in a newspaper, he wrote him January 23, 1905, the following letter:
    “Mr. H. H. West:
    “ I wish to sell 32 shares of Parke, Davis Sc Co. stock, certificate 1661, 20 shares, and certificate 2259, 12 shares, at $45 a share or offer. Would you advise me in case yop. find a buyer, also stating your terms ?”
    Respondent replied January 24th, as follows:
    “I will pay you $45 per share net for your 32 shares. If this is satisfactory to you, please bring me the certificates before 10 o’clock tomorrow morning.”
    Ponthieu made no reply. On the same day at noon (January 24th) respondent went to Ponthieu’s house, and there told Ponthieu that he had three buyers for the stock, that it would have to be divided among them, that the-purchasers were ready to take it, and that on that understanding he delivered to the respondent the shares evidenced by two certificates. Respondent gave him the following receipt:
    “Received of G. Ponthieu certificates 2259 and 1661, representing 32 shares of Parke, Davis & Co. stock. I promise to pay $45 per share net for same.”
    A witness who was present at the conversation testified that Ponthieu asked respondent when he could dispose of' the shares; that respondent replied, “tomorrow,” but said, “ I cannot send you the money until I have your transfer, but I will send you the money as soon as I have-them transferred;” and that respondent promised to “send the money tomorrow,” so that he (Ponthieu) would get it-early the next day. On the following day (January 25th) respondent wrote Ponthieu, “ I will advise you regarding-your Parke-Davis stock tomorrow;” and on January 2?th he wrote again, ‘ ‘ I have not been able up to the present-time to get your Parke-Davis stock transferred.” When, this letter was written, respondent had already sold and transferred certificate No. 2259 for $44.50 per share.
    On February 1st respondent sent Ponthieu a check for $225 for five shares, stating that he would “send check for seven shares tomorrow night or Friday,” and pay for the balance on Saturday. Before this respondent had sold all of Ponthieu’s stock and collected the money. He sold it all at from 25 to 50 cents per share less than $45. Respondent afterwards sent Ponthieu a check for $1,215, the balance of the amount, at $45 per share, but had no-money in the bank with which to meet the check. Respondent was a witness in his own behalf, and gave testimony tending to show that he purchased the stock, and was not a broker or agent in selling it.

      Charles Flowers, for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Walter M. Trevor, Assistant Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). 1. The chief allegation of error relied on is the refusal of the court to direct a verdict of acquittal. Counsel for the respondent insists that the relation between Ponthieu and the respondent was that of debtor and creditor, and that the respondent was an unfortunate debtor unable to pay. His position is that the receipt, given by the respondent when he obtained the stock, was a contract of purchase and sale. A receipt is always subject to explanation by parol. That the respondent intended to deceive Mr. Ponthieu by giving this receipt, and creating a relation which would relieve him from criminal responsibility, is fully sustained by the evidence. The jury evidently had no confidence in the truth of respondent’s story. The case was one peculiarly for the jury. Ponthieu wrote respondent as a broker, dealt with him as a broker, and gave him his stock to sell as a broker. Respondent immediately sold the stock and appropriated the proceeds to his own use. The people established a clear case of embezzlement.

2. Complaint is made of the language of the attorney for the people in his argument to the jury. It was severe; but, under the. evidence, we are not prepared to say it was not fully deserved. It furthermore appears that the prosecutor’s remarks were made in reply to those of the respondent’s attorney, but what those were the record does not disclose.

The conviction is affirmed, and the court directed to proceed to sentence.

Carpenter, C. J., and McAlvay, Blair, and Moore, JJ., concurred.


author: Per Curiam.

text:
    DETROIT UNITED RAILWAY v. OAKLAND CIRCUIT JUDGE.
    Mandamus — Propriety—Condemnation Prooeedings — Dismissal —Remedy by Error.
    Mandamus will not issue to review the dismissal, on objection of a property owner, of a petition filed by a railroad company as commencement of proceedings to condemn land, the order of dismissal being a final order, reviewable on error.
    Mandamus by the Detroit United Railway to compel George W. Smith, circuit judge of Oakland county, to set aside an order dismissing a petition for the condemnation of land.
    Submitted November 13, 1906.
    (Calendar No. 21,941.)
    Writ denied December 3, 1906.

      Brennan, Donnelly & Van De Mark (James H. Lynch, of counsel), for relator.

      Davis & Bromley, for respondent.
   Per Curiam.

The Detroit United Railway filed its petition in the circuit court for the county of Oakland as commencement of proceedings to condemn for its use certain premises. Objections were filed by a property owner, a portion of whose premises it was sought to obtain in the proceeding. A hearing was had, and an order was entered dismissing the petition. It. is sought to review the determination by mandamus. This is not the proper remedy. The order of the circuit court is a final order disposing of the entire proceeding.

Writ denied.


author: Moore, J.

text:
    HAAK v. KELLOGG.
    1. Statute of Frauds — Original or Collateral Undertaking —Evidence.
    In an action for the price of building materials furnished for a house in course of erection under contract, evidence examined, and held, to make a question for the jury whether the owner agreed, in consideration of the delivery of the balance of the materials necessary to complete the house, to pay the furnisher for materials already delivered to the contractor and to be delivered.
    2. Costs — Writ of Error — Reversal.
    Plaintiff in error is entitled to costs on reversal, though the trial court directed a verdict of his own motion, there being nothing to show that he would not have submitted the case to the jury if defendant in error had so requested.
    Error to Calhoun; Hopkins, J.
    Submitted November 14, 1906.
    (Docket No. 70.)
    Decided December 3, 1906.
    Assumpsit by Harry K. Haak against H. W. Kellogg and Ered W. Rainbow for goods sold and delivered. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      James L. Powers, for appellant.

      D. C. Salisbury, for appellees.
   Moore, J.

The plaintiff is a dealer in lumber. He sued defendants to recover a balance due for lumber furnished under such circumstances he claims made defendants liable to pay for it. The circuit judge directed a verdict for defendants. The case is brought here by writ of error.

A number of assignments of error are argued by counsel, but the important question is whether the case should have been submitted to the jury. The record discloses that defendants are the owners of certain real estate; that in the fall of 1903 they let a contract to George Beckley to erect a house thereon. The plaintiff furnished some lumber and material to Mr. Beckley, for which he was not paid. We quote now from the testimony of the plaintiff:

“ I went to Mr. Beckley and asked him for a part of this money. He stated that he could not, get it, and dillydallied along for about a week. So I finally told Mr. Beckley. I said, ‘Now, Mr. Beckley, I won’t furnish any more lumber unless I know where my money is coming from.’ Then we went to see Mr. Mike Yernon, the real estate agent. I found he had something to do with ,it. Well, we finally went down to see Mr. Rainbow at the Duplex, and at that time I stated just the circumstances, that I was depending on this money, and we talked back and forth, and finally I told Mr. Rainbow that I would not furnish any more lumber on this job unless there was some definite information where the money was coming from. Well, he said then that he did not have the money. Then I said, ‘ Would you give me your note on account of this lumber bill?’ and he stated he would. And this same time he stated, ‘You are not to look to Mr. Beckley for the pay for this lumber.’ He said, ‘You go ahead and furnish the lumber, ■and I will pay for it.’ And under those circumstances I went to work.

11 Mr. North: I move to strike out the testimony just as to his oral statement to let him have the lumber, and that he would pay for it. It is not responsive, and it is incompetent testimony within the meaning of the statute ■of frauds.

The Court: It may be stricken out as unresponsive.

Mr. Powers: Exception.

“After I had that conversation with Mr. Beckley and ■after the house was inclosed as agreed upon, I had a •conversation with him about the payment of the money. He did not pay me for the lumber at that time. After that Mr. Beckley and I went to the Duplex and called Mr. Rainbow out, and I just told him the circumstances, how the matter stood, and Mr. Rainbow stated then and there, in the presence of Mr. Beckley, to let him have lumber to finish the job. He wanted to have the job .finished, and that he would pay for it, and he gave me a note for $200, which I took over to the Merchants’ Savings Bank and had discounted. The note was given ■on the 3d day of October, 1903, and was paid on the 15th ■of October, 1903.”

There was other testimony of like character offered upon the part of the plaintiff.

The defendant Rainbow denied having made any such ■agreement. The defendants claim the lumber was sold to Mr. Beckley, and no one else; that it was charged to him; that plaintiff’s conduct afterwards should estop him from making any different claim. They further claim that taking plaintiff’s testimony as true the agreement was within the statute of frauds, and could not be enforced because' not in writing.

For the purposes of this case, we must assume the testimony offered by the plaintiff to be true. The situation, "then, was that plaintiff had furnished material to Mr. Beckley which was put into a house belonging to defendants, for which, if he pursued the proper course, he could enforce a lien against the property. It is claimed that it was stated by one of the defendants that they wanted the .job finished; that they agreed to pay for the lumber then •furnished, and to be furnished, and that plaintiff was not to look to Mr. Beckley for the pay for this lumber, but to them, and that as part of this agreement one of the defendants gave him a short-time note for $200; that, relying upon the agreement, he continued to furnish lumber ■and materials until the building was completed. Gibbs v. Blanchard, 15 Mich. 292; Potter v. Brown, 35 Mich. 274, and the cases cited in the note. McLaughlin v. Austin, 104 Mich. 489, and Wenzel v. Johnston, 112 Mich. 243, sustain' the proposition that under the testimony offered upon the part of the plaintiff the case should have been submitted to the jury.

Counsel say that, as the judge directed the verdict upon his own motion, they should not be required to pay costs. We have no doubt, if counsel had said to the judge they preferred the case should be submitted to the jury, that he would have done so. They made no such suggestion, and plaintiff has been compelled to bring his case here, and should recover costs..

Judgment is reversed, and new trial ordered.

Carpenter, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    SHAW v. TABOR.
    1. Vendor and Purchaser — Vendor’s Lien — Consideration— What Included.
    A vendor is entitled to his lien for the amount unpaid on a contract to sell a lot and build a house thereon, though the deed was executed and delivered before the house was completed.
    2. Equity — Chancery Practice — Verification of Bill — Necessity.
    A bill to establish and foreclose a vendor’s lien need not be verified.
    Appeal from* Jackson; Parkinson, J.
    Submitted November 14, 1906.
    (Docket No. 161.)
    Decided December 3. 1906.
    Bill by Jerome T. Shaw against Eri Tabor and Ellen D. Tabor to enforce a vendor’s lien. Prom a decree dismissing the bill on demurrer, complainant appeals.
    Reversed.
    The case made by the bill of complaint in substance and effect is: Complainant bargained with defendants to sell them a certain lot and to erect upon the lot a dwelling house; the agreed consideration for lot and house being $1,525. The agreement rested in parol. Complainant performed the contract on his part, and defendants, on their part, accepted a deed of the premises, entered into possession, and paid all of the purchase money, except $325. The deed of the premises passed February 3,1905, before the dwelling house was complete, and at a time when. the foundation walls of the house, a cistern, outhouse, and well had been completed. Defendants entered into possession of the premises on June 1, 1905, the dwelling house at that date being fully .completed. The lot without the improvements was worth not less than $200. Defendants have mortgaged the property for $1,100, they refuse to pay the balance of the contract price, and complainant has no security for the same. Defendants demurred to the bill, asserting:
    “1. That the complainant has an adequate and complete remedy at law for all of the matters and differences complained of by the complainant in his bill of complaint; the whole question as set up in the bill of complaint being the question of indebtedness, and purely a question for the jury in the law division of this honorable court, and in no way a question for a court of equity. The defendants’ plea to the matters and differences set up in the bill of complaint would be set-off and recoupment, and the question of indebtedness would be a question of fact for the jury to decide.
    “ 2. That there is no equity in the bill of complaint, or any part thereof, as the whole matter therein complained of is entirely a question of law and fact.
    “3. The complaint is not properly verified as law requires in this class of cases. All of which is respectfully submitted, and the court is therefore requested to dismiss the said bill, with costs for these defendants, to be taxed.”
    The demurrer was sustained, and a decree entered dismissing the bill of complaint.

      Grove H. Wolcott, for complainant.
    Lee N. Brown, for defendants.
   Ostrander, J.

(after stating the facts). The learned circuit judge was of opinion that because the bill does not point out what portion, if any, of the general balance claimed to be due, arose upon the sale and conveyance of the land, and that portion of the debt which grew out of the construction of the house is no part of the purchase price of the land, the case is controlled by the principle stated in 2 Jones on Liens, §§ 1066, 1072, and applied in Hiscock v. Norton, 42 Mich. 325, and Warner v. Bliven, 127 Mich. 665. See, also, Clark v. Stilson, 36 Mich. 482; Dunton v. Outhouse, 64 Mich. 419; Waterfield v. Wilber, 64 Mich. 642. If complainant had not delivered the deed until the house was completed and accepted, we should have no difficulty in determining that a lien existed in favor of complainant for whatever part of the purchase money was due and unpaid. Is the case made by the bill essentially different from the supposed case? There were not two contracts. The property agreed to be sold and conveyed, and which was sold and conveyed, was a lot with a dwelling house thereon. The contract of sale and purchase which is alleged is one which could be performed only by tendering the land with the improvement. The consideration was single, was to be money, and, so far as it was unpaid, was, by necessary inference from the facts stated, due and payable when the house was completed and the title to both house and lot tendered by the vendor. Complainant has conveyed what he agreed to sell and convey, and no more. Defendants have accepted the property and the title, and are in possession of that for which they agreed to pay the consideration. It was said in Palmer v. Sterling, 41 Mich. 218, 220:

“ The decisions in this State have followed the old rules in equity, whereby a vendor who had a claim for unpaid purchase money is allowed a lien on the land sold by him for its payment, where nothing is done to waive or lose it. * * * But all the authorities rest upon the basis that the land was actually sold for an agreed consideration, payable at all events, and payable as the purchase price. Unless there was a sale for a price, there could be no such relation as that of unpaid vendor and responsible purchaser. The lien can only exist as collateral to a debt which was a part of the transaction and created simultaneously with the sale.”

Applying this language and the principles stated here, complainant has set out a case entitling him to the relief prayed for.

The third ground of demurrer is relied upon. The point seems to be ruled, adversely to appellee, by Moore v. Cheeseman, 23 Mich. 332. No statute or rule requiring a bill of this nature to be verified has been called to our attention.

The decree dismissing the bill is reversed, and a decree will be entered here overruling the demurrer, with costs of both courts to complainant. The record is remanded, and defendants will be given 30 days in which to answer.

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