text:
      In re JOHNSON'S ESTATE. BEECHAM v. WETHERBEE.
    1. Evidence — Witnesses — Testimony as to Facts Equally Known to Deceased.
    In. an appeal from tlis disallowance of a claim against the estate of decedent, testimony of the claimant admitted as to preliminary matters which were not in dispute or material to the point in issue, was not reversible error, although the facts were equally within the knowledge of deceased.
    3. Same — Curing- Error — Trial.
    No error was committed in excluding an answer of witness until after it was shown that he had personal knowledge of the facts.
    3. Same — Cross-Examination.
    Inquiry on cross-examination of a witness as to whether deceased performed acts of kindness for claimant and her husband was not improperly excluded, in view of the generality of the question and its want of bearing on the principal issues.
    4. Same — Impeachment.
    A question which affected only the credibility of claimant was properly excluded where she had given no testimony as to material questions.
    5. Estates op Decedents — Executors and Administrators — Allowance op Claims — Directing Verdict.
    The question of liability of an estate for services rendered by claimant to deceased in her lifetime was properly submitted to the jury under evidence which tended to show the nature and value of the services, that no family relationship existed between the parties, and that deceased stated she intended to pay the claimant.
    6. Same — Implied Contract — Instructions to Jury.
    The liability of deceased was properly presented by a charge to the jury which limited the right of recovery to a case in which a legal, rather than a moral, obligation existed, and the services were not spontaneously rendered, without any expectation of compensation, which expectation, in order to entitle claimant to recover, must have been in the minds of both parties.
    7. Same — Charge.
    An error in the charge as to the time covered by alleged services rendered is not open to objection on the part of an appellant who made a similar error in his requests to charge.
    8. Appeal and Error — Saving Questions por Review — Exceptions — General Argument.
    An argument in appellant’s brief that the court erred in refusing to give requested instructions to the jury is too general to merit discussion.
    Error to Wayne; Donovan, J.
    Submitted December 13, 1909.
    ( Docket No. 48.)
    Decided April 1, 1910.
    Laura Beecbam presented a claim against the estate of Sarah Johnson, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. A judgment for claimant is reviewed by defendant on writ of error.
    Affirmed.

      G. K. Latham, for appellant.

      James H. Pound, for appellee.
   Montgomery, C. J.

The claimant presented a claim to the commissioners for services rendered at the request of Mrs. Johnson in acting as a companion, nursing and caring for her when sick, ordering her coal, groceries, drawing rent receipts, waiting upon her in her sickness, etc., at the price of $3 per week for a period of 10 years and upwards. The claim was disallowed by the commissioners and claimant appealed to the circuit court. On trial at the circuit, the jury returned a verdict finding in her favor for $897. The case is brought here by the executor for review.

The first error assigned is that error was committed in permitting the claimant to give testimony as to certain facts equally within the knowledge of the deceased. Her testimony was limited to stating her acquaintance with the deceased, and the fact that her husband was a tenant of deceased and as to who composed the family of claimant. The testimony given upon this subject was relating to matters in no way in dispute in the case, and whether there would be a technical objection to receiving this testimony from claimant herself is wholly immaterial, as no possible injury could have resulted from receiving the testimony.

The next error assigned is that the court erred in excluding the following question:

“Now, is that not just as true about the other people who lived right next door, the immediate neighbors of Mrs. Johnson, that they did errands occasionally ?”

This was objected to upon the ground that it did not appear that the witness knew anything about the facts, and upon further inquiry it was ascertained that the witness did have some knowledge, and the testimony was then received covering the facts to the extent of his personal knowledge. No error was committed in this ruling.

The next error assigned is in excluding the question to the witness Moreton, “State if you know whether she (deceased) did any acts of kindness for them,” including claimant. We think this question was properly excluded as too general in its scope, and, as framed, the answer could have given no information to the jury which would be of aid in determining the question of whether the services of claimant were rendered in expectation of receiving pay, and with the expectation on the part of the deceased to pay for them.

Error is assigned upon the exclusion of a question put to the plaintiff relative to a divorce case between Frederick Beecham and Almira Beecham, granted in 1893. The only purpose of this testimony was to affect the credibility of the plaintiff as a witness, and, as before pointed out, she had given no testimony as to the question material to the case about which there was any dispute. There was no abuse of discretion, therefore, in excluding this inquiry.

The principal question discussed is that the court erred in refusing to direct a verdict for the defendant. We think the court committed no error in refusing to grant this motion. While the testimony may not be altogether convincing to us, there was testimony which tended to show that deceased frequently stated that she expected to see claimant paid for her services. There was no family relation between the parties which called upon claimant to render the services which she rendered.

The circuit judge charged the jury upon this question to that effect, and stated that,

“If claimant rendered to Sarah Johnson any valuable services which the said Sarah Johnson received and appropriated, the law implies a promise to pay for the said services what the same is reasonably worth.”

This was modified by an instruction given on behalf of the defendant, as follows:

“ Moral obligations have nothing to do with this case. The plaintiff must prove a legal obligation of the defendant, otherwise, there would be no cause of action, and you would find for the defendant. You cannot find anything for the plaintiff, unless you find from the testimony in this case that a contract existed between the plaintiff and Sarah Johnson, or that valuable services were rendered — that is, were rendered and accepted by her. * * * That means a contract is an agreement whereby one person and another engage to do or not to do a given thing.”

He further charged:

“Where there is a spontaneous service, as an act of kindness and no request, or where the circumstances account for the transaction on some ground more probable than that of a promise of recompense, then no promise would be implied. The contract connected with that would not be established. An agreement to compensate cannot be implied from the mere fact that services were rendered. They must be rendered and accepted, and they must be known to have been rendered with the expectation of pay. The simple fact that services were rendered does not raise a liability on the part of a person for whom they are rendered, even though done at the request, if the circumstances are such as to rebut the inference that compensation is to be made.”

We think that, under these instructions, the peculiar circumstances of the case were sufficiently brought to the attention of the jury, and that the inference which might arise that these services were merely neighborly kindnesses was sufficiently emphasized, and that the jury must have found, in order to reach the conclusion that they did, that there was an express promise on the part of the deceased to pay for the services.

Complaint is made in the brief that the court in stating the plaintiff’s claim referred to one for 10 years’ services, and it is now urged that the testimony fails to show services for that period of time, or for more than 8 years and 2 months. This point was not called to the attention of the trial court at the hearing, and there is no specific assignment of error which raises the question. And, more than this, the requests of the defendant treated the claim for services as one for 10 years, and one of its requests, the seventh, concluded with this statement:

“The plaintiff’s claim for services is from some time in 1894 to some time in 1904 — about 10 years. If you do not find that Mrs. Beecham’s testimony as to Mrs. Johnson’s promise to pay is strong enough and broad enough to cover the 10 years’ services, then you must find for defendant.”

We think, therefore, it is not open to the defendant to urge that there was error in stating the claim as one for 10 years’ service.

An argument is made that the court erred in refusing the requests of the defendant, but it is so general in its terms as not to require discussion.

The case was fairly submitted to the jury, and the verdict reached must conclude the parties.

Judgment affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    ADAMS v. GRAND RAPIDS REFRIGERATOR CO.
    1. Master and Servant — Duty to Warn and Instruct — Explosions from Contact of Molten Matter and Water.
    An employer engaged in the manufacture of enamel, which is brought in contact with water while it is in a molten condition, is under an obligation to acquaint an employé subject to risk, with the danger of explosion which is ascertainable from a knowledge of scientific principles, with which some one in the business should be acquainted.
    2. Same — Questions of Law and Fact — Direoting Verdict.
    The question of the master’s duty to warn his servant is for the jury in a case where an explosion occurred from the use of insufficient water in a tank employed to receive molten enamel.
    3. Same — Assumed Risk — Chemical and Physical Laws.
    The employé is not presumed to possess such scientific knowledge as to charge him with the assumption of risk from an explosion of the enamel, without a previous warning of the danger.

    Error to Kent; McDonald, J.
    Submitted December 14, 1909.
    (Docket No. 113.)
    Decided April 1, 1910.
    Case by Harry Adams against the Grand Rapids Refrigerator Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Taggart, Denison & Wilson and Kleinhans & Knappen, for appellant.

      Lombard & Hext, for appellee.

       As to what knowledge of scientific facts is imputed to servants, see note to James v. Rapides Lumber Co. (La.), 44 L. R. A. 75.

   Montgomery, C. J.

The defendant is engaged in the manufacture of porcelain-lined refrigerators, and as a part of its operations manufactures its own porcelain. Plaintiff, who was at the time 34 years of age, suffered an injury by an explosion occurring in the tank into which the enamel is drawn off after being smelted, on the 27th day of November, 1906. He at that time had been employed by the defendant about four years in its enameling department.

The ingredients of the enamel comprise, among other things, oxides of silicon, sodium, potassium, calcium, and metal oxides as a basis, with fluorine as a flux. In preparing the enamel, the first step is the thorough mixing of the ingredients, which have first been ground to a fine powder. This mixture is then placed in the smelter and subjected to a high temperature until fusion results. It is then drawn off in its molten state into a tank of water where it breaks up into granular form, resembling small particles of semi-opaque glass, in which form it is called the “frit.” This frit is then reground with other non-fusible materials to render the ultimate porcelain opaque. The furnace in which this material was melted consisted of a fire pot and two melting pots, in which was placed the material for smelting. The pot itself is about two feet in diameter and about one foot deep. It is constructed of fire brick laid in courses inside the iron or steel shell of the furnace. In the front and at the bottom of this melting pot is a spout through which this molten enamel is drawn from the tank. This spout runs from the outer casing backwards and upwards into the pot about three or four inches, which brings its inner end ordinarily about three inches from the inside of the fire brick. Before the ground enamel is put into the pot for smelting, this spout is plugged up with German clay. Directly above each melting pot, and in the top of the furnace, is also another door or aperture through which the ground enamel for smelting is put into the pot. Underneath each of the pots is a tank eight feet long, two feet deep, and two feet four inches wide. These tanks extend through under the pots, and can be moved backward and forward like a drawer, arranged on little wheels. When the enamel is ready to be drawn off, the tank is pulled out from in under the pot and partially filled with water from a spigot fixed beside it for that purpose. In ordinary use it was customary to have this tank nearly two-thirds full.

On the day in question, as the testimony of the plaintiff •tends to show, the work had been practically completed, and’ he started to draw off a quantity of the enamel somewhat less than the ordinary batch. With a small batch less water is said to be necessary, and was so thought by the plaintiff. He was directed by the foreman, as he testifies, when to open up the spout and to allow the enamel to flow. He started to do so, with the tank only about one-third full of water. A terrific explosion occurred, blowing the sides and the ends of the tank out, and the plaintiff was severely injured. He recovered a verdict at the hands of the jury, and the case is brought here for review.

The only ground of error urged is that the circuit judge erred in failing to take the case from the jury. Defendant’s counsel assert that the only basic proposition of law to be considered is this: Was there any duty on the part of the defendant to warn plaintiff of the danger of an explosion of the extent and character which injured the plaintiff ? Defendant’s contention is that the cause is entirely problematical, that no such accident had ever before occurred, and that plaintiff was chargeable with at least as great a knowledge as defendant of the liability of such unexplained accident to occur.

The testimony bearing upon the question of defendant’s duty was on its behalf that of an expert witness, who, among other things, testified that in all the history of the art — and he had been engaged in the sale of furnaces such as were used by the defendant for years — no similar accident had occurred. The plaintiff’s case was supported by the testimony of an expert, who gave testimony tending to show that a highly heated or molten mass coming in contact with a small quantity of water may cause, and is likely to result in, an explosion. Dr. Lyman, who had been a chemist for many years, testified as to the cause of the explosion as follows:

“ The probable cause — there are two possible explanations of an explosion occurring under like circumstances —the probable cause was the instantaneous conversion of a certain volume of water intp steam by the excessive heat which is necessary to render the constituents of porcelain a molten or fluid mass.”

This he elaborated, and the testimony further showed that the heat applied to this substance was very great, being 2,750 degrees.

The question is whether this scientific fact was one of which the defendants should have had knowledge, and should have made the plaintiff acquainted with. The case presents an entirely different question from that in Siegel v. Heating Co., 143 Mich. 484 (106 N. W. 1127), in which it appeared that an explosion occurred from a volatile solvent drawn off from a varnish purchased by the defendant for use in its business. It was held in that case that the defendant was not negligent unless it knew, or should have known, of the danger to which plaintiff’s employment exposed him. In answering the question, Does the testimony warrant the inference that the defendant should have known it ? the court said:

“ In determining this question, it should be borne in mind that defendant did not manufacture this varnish. Defendant purchased the varnish for the purpose of using it to gild radiators.”

This was clearly an important fact in the case, as the well-recognized obligation of the defendant in such circumstances would be to use reasonable caution in purchasing of a reputable dealer. In the present case, however, the defendant was employing in its business substances and processes of which some one must have had or should have had some scientific knowledge. That an obligation rests upon an employer to acquaint an employe with the dangers which can be ascertained by a knowledge of scientific principles, and to which he would be in his ignorance otherwise subjected, is a recognized doctrine of the law.

In 1 Labatt on Master and Servant, pp. 298-301, the writer states that the master is bound to—

“ Take into account the properties of such substances as he employs for the purposes of his business, and the operation of familiar physical laws upon these substances. * * * Under this head he is chargeable with knowledge of the following facts: * * * That the contact of water with molten metal or other substance which is heated to a sufficiently high temperature will generate steam suddenly, and so cause an explosion; that certain inflammable substances will ignite under certain circumstances ; that special precautions must be taken where the business involves the production or use of things of the imminently dangerous class, such as an explosive, or a current of electricity.”

This view is also supported by our own decisions, the leading case being the case of Smith v. Car Works, 60 Mich. 501 (27 N. W. 662,1 Am. St. Rep. 542). See, also, Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215). It is further stated by the same author (page 302):

“ For injuries caused by his failure to foresee the results of the operation of the natural laws which he is presumed to comprehend, the master is liable, even though such results may be of an unusual character.”

The natural law which plaintiff’s testimony tended to show would result in the explosion in the present case was one which, while well recognized, might not indicate great imminence of danger except under peculiar conditions, namely, permitting this molten matter to flow into a comparatively small quantity of water. But the consequences of the operation of this natural law under these somewhat unusual conditions were so great as to suggest to any prudent man the necessity of informing one likely to be injuriously affected by a want of knowledge of such a natural law. In the present case, it is extremely improbable that this accident would have occurred had the tank been full or nearly full. It was the contact of the molten matter with a quantity of water less than the usual amount which caused the unusual result, and yet this was something that was liable to happen either by an error of judgment or by accident in any day’s operation of the smelter. We think, therefore, it was a question for the jury on the proof as to whether this was a natural law which should have been understood by the defendant and communicated to the plaintiff. See, in addition to the cases cited from our own State, Tissue v. Railroad Co., 112 Pa. 91 (3 Atl. 667, 56 Am. Rep. 310); McGowan v. Smelting Co., 9 Fed. 861; Holland v. Railroad Co., 91 Ala. 444 (8 South. 524, 12 L. R. A. 232).

It is contended, however, that the plaintiff had the same means of knowledge that the defendant possessed. We think the cases cited support the view that one employed as a workman is not supposed to possess such scientific knowledge of chemical changes or of such extraordinary results of the action of the forces commonly used in the business as those shown in this case. In Holland v. Railroad Co., above cited, it was said:

“The other peril arose from the fact, supported by a tendency of the evidence here, that a boil ’ of iron upon being punctured, and having its shell broken, bursts, and throws out molten metal in all directions — ‘explodes,’as some of the witnesses stated as to this one, though this term was said to be inapt and inaccurate by others. Of this peril — the danger of the flying molten iron — resulting from unseen and unappreciated conditions and forces, the inexperienced man would know nothing by the exercise of his senses. It was a state of things which would not address itself to his comprehension, and of which he could only come to a knowledge by being instructed in regard to it.”

And in the case of McGowan v. Smelting Co., above cited, the court said:

“ The explosive power of hot slag when cast into water is not within the intelligence of ordinary men. It is doubtful whether many people of education know the force and violence of such an explosion; and, if fully informed, how many of them, when put into service at a smelting furnace, would recall their learning without a suggestion from some source ?”

We think it cannot be said as a matter of law that the plaintiff should be presumed to have had the scientific knowledge which the law requires of the defendant in such a case.

There was no error committed in submitting this case to the jury, and, as this is the only question presented, the judgment will be affirmed.

Ostrander, Hooker, Moore, and MoAlvat, JJ., concurred.


text:
    RANNEY v. HENRY.
    1. Principal and Agent — Brokers — Good Faith — Fiduciary Relations.
    A broker is bound to exercise good faith with his principal, who is entitled to frankness and openness of treatment, free from concealment of material facts.
    2. Same — Fraud—Ratification—Estoppel.
    The sale of real estate by a broker to a customer who had been expressly excepted by the owner from the persons to whom the broker might sell, does not entitle the broker to commissions on any theory of estoppel or ratification where he took the contract for the purchase of the land in his own name, informed the owner that the actual purchaser had no interest in the transaction, and where the owner had previous dealings with another broker and the purchaser which might create a further liability for commissions.
    Error to Wayne; Murfin, J.
    Submitted December 14, 1909.
    (Docket No. 17.)
    Decided April 1, 1910.
    Assumpsit by Frederick T. Ranney against Albert M. Henry and another for commissions on the sale of real estate. A judgment for plaintiff is reviewed by defendant Henry on writ of error.
    Reversed.

      Hunt & Altland, for appellant.

      Hobson & George, for appellee.
   Montgomery, C. J.

The defendant and his son, Burns Henry, were the owners of a valuable piece of real estate on Jefferson avenue, Detroit, and in 1906 they commenced negotiations with Mr. and Mrs. E. J. Schmidt for a sale of the property to them. The price originally fixed was $65,000, but this price was reduced from time to time. It appears that Mr. Henry had also negotiated with a Mr. Turnbull, a real estate agent, to assist him in effecting a sale to the Schmidts. While these negotiations were thus pending, the plaintiff induced Mr. Edward E. Marschner, who was one of the assessors of the city of Detroit, to assist him in procuring a price from the defendant upon the property. Plaintiff testified as follows:

“Q. Your object, of course, in getting the assessor of the city of Detroit to call up Mr. Henry, was that he could get as good a price as possible, I presume, from Mr. Henry? * * * Was that your object, or was it not ?
“A. My object was to see if he could get a fair price. I knew Mr. Henry’s price of $60,000 was out of sight.”

And on redirect examination:

“ Q. In other words, that is the way in which you got the price at which Mr. Henry was willing to make the sale ?
“A. That was it. I knew I could not get that price.”

It also appears that Mr. Ranney had had some talk with Mr. Schmidt before he finally met the defendant. Marschner had several talks with the defendant as to the price, offering him first $40,000 and finally asking if he would take $50,000. Defendant replied to ascertain if it was an offer, and it was finally stated that he would accept $50,000, and pay a commission of $1,250. Mr. Marschner then brings Ranney, the plaintiff, into the case for the first time. There is a sharp conflict in the testimony between the plaintiff and the defendant as to whether at the time of the first conversation between plaintiff and defendant Mr. Schmidt was excluded as a customer, defendant testifying that he distinctly stated that he had had negotiations with Schmidt, and that, if plaintiff represented Schmidt, he could not be considered. Plaintiff denies this, but claims that nothing was said in that conversation upon the subject.

Yery shortly after the first conversation, plaintiff appeared with a contract running directly to himself upon which $1,000 was to be paid, and the remainder when the title was shown to the satisfaction of counsel. At this conversation plaintiff admits that he was asked whether Schmidt was interested in the contract, and replied that he was not. He seeks to evade the force of this statement by saying that it was not determined that Schmidt should take it until counsel should pass upon the abstract. This is too clear an evasion and quibble to call for evén.a characterization. The contract itself provided that no one was to take it until the title was shown to the satisfaction of counsel, and as a matter of fact the property was purchased for Schmidt, and for no one else. He immediately went to Schpiidt with the contract, and made an absolute assignment of his right, title, and interest. The examination of the title was thereupon made, and Mr. Schmidt appeared to tender the remaining $49,000 and the defendant consummated the sale.

Upon this state of facts the circuit judge left to the jury the question of whether in the first contract between the plaintiff and defendant, Mr. Schmidt was excluded as a customer, charging the jury, in substance, that if defendant let the plaintiff understand that Mr. Schmidt was eliminated, and that a sale to him would not entitle plaintiff to commission, there could be no recovery. He also charged the jury that, if the contract was made by reason of any fraudulent connivance od behalf of Mr. Ranney or Mr. Marschner, the plaintiff would not be entitled to recover. The court also recognized in his charge the obligation of an agent, which is so well understood as not to require the citation of authorities, to act in good faith in dealing with his principal in all stages of the negotiations. Authorities are cited by defendant’s counsel to show that the concealment of the name of a purchaser may be material in certain cases. This was not a case of concealment. It is a case of false statement. The plaintiff not only neglected the duty of being frank and open with his principal, but he actually deceived him and misstated the facts. Courts will not be alert to find means of escape for a person who is guilty of such practices.

The court below, however, was of the opinion that the fact that the defendant concluded the sale to Schmidt and made a deed after learning of the plaintiff’s misrepresentations amounted to a ratification of his acts, and estopped defendant from interposing this defense. We do not agree with this conclusion. The record shows that the defendant had employed another to make a sale of this property to Mr. Schmidt. When Mr. Schmidt had agreed to purchase upon terms which were satisfactory to the defendant, it would apparently be the duty of the defendant to make the deed. In other words, defendant could not withdraw from this dilemma in which he had been pláced by the double dealing of the plaintiff, without making himself liable to another agent for commission. Therefore it would seem that the elements of estoppel were lacking. Barrett v. Miller, 144 Mich., at page 469 (108 N. W. 396).

We think upon this question there was error in the instruction of the circuit judge, and the judgment should be reversed, and a new trial ordered.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    WEATHERBEE v. BYAM.
    1. Evidence — Civil-Damage Action — Intoxicating Liquors — Hearsay.
    In an action by a widow against liquor dealers and their bondsmen for selling intoxicants to her deceased husband whereby he was drowned while fishing, testimony of statements made by deceased concerning his intention to go fishing were not harmful error; the same facts being proved by competent testimony introduced by appellant.
    2. Same — Trial—Cross-Examination.
    The latitude and extent of cross-examination of defendants’ witnesses is largely discretionary with the trial court.

      3. Intoxicating Liquors — Unlawful Sales.
    In an action brought against saloon keepers for the wrongful sale of liquors to plaintiff’s husband and his death therefrom, a count for unlawfully inducing the deceased to become addicted to the habit of becoming intoxicated, without alleging his death, was properly joined, and, being supported by competent evidence, raised a proper issue for the jury.
    4. Same —Trial —Special Questions — Requests to Charge — Unlawful Conduct of Deceased.
    No error was committed by the trial court in refusing to submit to the jury a special question as to whether deceased formed an intent to fish with a net contrary to law, before he was under the influence of liquor, and in refusing to charge that if he met with his death while so engaged in illegal fishing the plaintiff could not recover.

    Error to Clinton; Searl, J.
    Submitted December 14, 1909.
    (Docket No. 72.)
    Decided April 1, 1910.
    Case by Isabella K. Weatherbee against George R. Byam and others under the civil-damage act. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Lyon & Moinet (Allen P. Cox, of counsel), for appellants.

      William M. Smith, for appellee.

       As to necessity, in order to support a recovery under civil-damage act, that the intoxication be the proximate cause of the injury, see note to Bistline v. Ney (Ia.), 13 L. R. A. (N. S.) 1158.

   Moore, J.

Plaintiff brought this suit to recover damages against three saloon men, Byam, Bloss and McCarthy, and their bondsmen, under the civil-damage law. The declaration consists of four counts. The first, second, and third counts seek to recover upon the theory that plaintiff’s husband, George C. Weatherbee, was a man in the habit of becoming intoxicated and was in fact intoxicated on the afternoon and evening of June 19,1906, and that said defendant saloon keepers in person or by their clerks then and there sold and furnished him intoxicating liquors, and that as a result thereof, while intoxicated, he was drowned in Maple river on that night. The fourth count seeks to recover upon the theory that from May 1, 1906, down to and including June 19, 1906, the defendant saloon keepers sold and furnished liquors to said George C. Weatherbee, alleging that he was then and there a person in the habit of becoming intoxicated and was at such times intoxicated, and that—

“ The said George C. Weatherbee on, to wit, the said days and dates above mentioned, became drunk and dazed, bewildered in mind, and wandered and staggered in, upon and about the public streets of the said village of Ovid in the said county of Clinton, and that he would often remain away from their said home until midnight and later before returning, and would thus deprive this plaintiff of rest and strength in watching, waiting, and taking care of him, her said husband, the said George C. Weatherbee, and that he would become and was during, to wit, all of said time, unable to attend to his business, which was neglected and injured because of the said intoxication caused by each of said defendants,” etc.

This count does not allege the death of George C. Weatherbee, and does not make any claim for damages on account of his death.

Upon the trial of the case plaintiff produced and gave testimony tending to show the truth of the averments of the declaration. Upon the trial defendants produced and gave testimony tending to show that Weatherbee was not a man in the habit of becoming intoxicated on and prior to the date in question, and also that he was not intoxicated during that afternoon and evening; that prior to June 19, 1906, Weatherbee, at a time when he was perfectly sober, made an agreement with his brother-in-law to go fishing with a net in violation of law in Maple river on the night in question; that they fished in violation of law in pursuance of that agreement; that during all of the time they were so fishing and for several hours said Weatherbee conducted himself as he would ordinarily when no question was raised' that he was under the influence of liquor; that by accident he went into a deep hole while fishing and was drowned; and that any liquors he drank prior thereto did not in any way cause or contribute to his death.

The trial court submitted the case to the jury upon all of the counts, and the jury returned a general verdict of $2,800 in favor of plaintiff. Defendants bring the case to this court on writ of error, and assign 142 assignments of error. It is manifest that no such number of errors could have been committed going to the merits of the case. It is also manifest that it is not practicable to discuss each of these assignments of error. Some of them relate to the admission of testimony, others to the conduct of counsel, others to the cross-examination of witnesses, others to the exclusion of testimony offered on the part of defendants, others to the refusal of the court to direct a verdict in favor of defendants on the fourth count, and in permitting the jury to render a general verdict upon all of the counts in the declaration, others to the charge of the court as given, others in the refusal of the court to charge as requested, others in relation to the misconduct of counsel in instructing the jury how to answer one of the special questions submitted to the jury, and in not respecting the ruling of the court, and in using prejudicial language in discussing such special questions. All of these groups of assignments have been examined with care, but we shall confine our discussion to those which seem important. A quotation from the charge of the court at this point will be helpful. Among other things stated by the court is the following:

“ It is the claim of the plaintiff that she was married to George C. Weatherbee in 1900, and that she was living with him as his wife from that time up to the time of his death, which occurred on June 20, 1906, and that during their married life she had received her support from her husband and was receiving support from him when his death occurred.
“She further claims that on June 19, 1906, her husband was a person in the habit of getting intoxicated, and that during the evening of said day he was intoxicated at the village of Ovid. She further claims that from on or about May 1,1906, to June 20, 1906, the defendant Byam was engaged in the business of selling spirituous, malt, brewed, fermented, and vinous liquors at retail in the village of Ovid, and was the proprietor of a saloon there where intoxicating liquors were sold, and that he was carrying on said business under a statute of this State, and that in compliance with this statute he had given the bond provided for by law, with the defendants Voorheis and Gristock as his bondsmen; and that defendant Bioss wa3 during said time engaged in the same business in Ovid in the same way, with defendants Hicks and Duncan as his bondsmen; and that defendant McCarthy was during said time engaged in the same business in Ovid in the same way, with defendants Hicks and Duncan as his bondsmen, and that each of these three principal defendants, Byam, Bioss, and McCarthy, was operating and conducting a saloon of his own in Ovid, and that she makes the other defendants, the bondsmen, parties, because they are sureties upon the bond; and she further claims that on June 19, 1906, while defendants Byam, Bioss, and McCarthy were so operating their respective saloons and while her husband was a psrson in the habit of getting intoxicated, and while he was intoxicated, each of these principal defendants, Byam, Bioss, and McCarthy, either by themselves or by their several clerks, agents, and servants, sold, furnished, and delivered to her husband at their respective saloons intoxicating liquors, which liquors her husband then and there drank, and that he became and was intoxicated on that evening, and that this intoxication was either caused or contributed to by the liquors furnished by each of these saloonkeepers, and that the plaintiff saw her husband in an intoxicated condition during the evening of the 19th, and that after-wards and early on the morning of the 20th, while her husband was fishing in Maple river near the bridge just south of the village of Ovid, he lost his life by drowning, and that he was a good swimmer and would not have been drowned but for the fact that he was then and there in an intoxicated, dazed, and helpless condition caused by his intoxication, and that because of such intoxication he was helpless to a certain extent while in the water, and unable to swim or otherwise save himself as he would have been providing he had been in the possession of his full faculties and not in any manner enfeebled or rendered to any degree helpless by said intoxication, and that it was his intoxication, caused or contributed to by said liquors furnished by these three’ principal defendants, which caused his death. She further claims that she was notified of~her 'Husband’s death shortly after it occurred, and that she went to the river at about the time his body was taken out of the water and saw him there dead, and that by reason of his intoxication and death she has been injured and damaged in her means of support and has suffered injury to her feelings and has been humiliated, and that her husband has become wholly lost to her and that she has otherwise been injured and damaged, which damages she claims she is entitled to recover against the defendants here.
“The defendants admit that these three principal defendants, Byam, Bloss, and McCarthy, were engaged in the business of selling liquors as claimed by the plaintiff, and that the other defendants are sureties on the bonds as stated in her claim, but they each deny that they or any of them sold, furnished, or any way by themselves or their or any of their servants, agents, or employés, delivered any intoxicating liquors unlawfully to George C. Weatherbee on June 19th or any other time, and that they and each of them claim that he was not a person in the habit of getting intoxicated and was not intoxicated at the time any liquors were furnished him on June 19th, by any of these three principal defendants, and the defendant McCarthy and his bondsmen claim that no liquors at all were furnished to George C. Weatherbee on June 19th by McCarthy or any one in his saloon, and that Weatherbee did not procure any liquors at McCarthy’s saloon or in any way from McCarthy or from any agent, servant or employé of him at any time, which contributed in any degree to the intoxication of Weatherbee on the 19th and 20th, if he was so intoxicated. Defendant Byam admits that certain liquors were furnished Weatherbee at his saloon on the 19th, but he says these were lawful sales made when Weatherbee was not a man in the habit of getting intoxicated and made while he was not in fact intoxicated. Defendant Bloss admits that certain liquors were furnished Weatherbee at his saloon on the 19th but he claims that these were lawful sales made when Weatherbee was not in the habit of getting intoxicated and when he was not in fact intoxicated. All the defendants claim, as I understand their claim, that Weatherbee was not intoxicated at any time on the 19th or on the 20th up to the f time of his death, and they claim that his death was not / caused by any intoxication, and that in fact he did not) drown, but his death was caused by heart disease or heart / failure or in some other manner by which death overtook ' him while in the water suddenly in some other manner other than from drowning, and that even if you should find that his death was caused by drowning, yet that' the drowning was not in any manner caused or contributed to by intoxication, and they all claim that Weatherbee had before he drank at all on June 19th and when he was sober and on the day before, if I remember correctly, formed the intent to fish with a net on this river on this / night in question, and that he was so fishing contrary to law with a net at the time he met his death, and therefore that he cannot recover no matter what caused his death.
“I charge you that defendants Byam, McCarthy, and Bloss were from May 1, 1906, up to and including June 20,1906, engaged in a lawful business, and that under the law they had as much right to conduct their respective places of business and sell liquors at retail as any person has to engage in any other lawful business in this State, such as engaging in the business of selling groceries, meats, dry goods, clothing, or anything of that kind. It was lawful for these liquor dealers to sell intoxicating beverages during this time in question providing that such sales were not made in violation of the statute, and if sales were made in violation of this statute that I have spoken of, then in certain cases the liquor dealers are liable for the damages which may result from such sales. In this case we are concerned with no questions touching unlawful sales of liquor except sales to a person in the habit of getting intoxicated and sales made when a man is in fact intoxicated. You cannot base any verdict in this case upon sales made after hours, or in fact any sales or furnishing of liquor except such, if any, as were sold or furnished George O. Weatherbee on June 19th, either at the time when he was a person in the habit of getting intoxicated or at a time when he was in fact intoxicated. * * * In other words, gentlemen of the jury, there are only two kinds of unlawful sales of liquor for you to consider here, if you find any unlawful sales of liquor made at all. I have mentioned them to you — sales made to a person when he is intoxicated, and sales made to a person in the habit of getting intoxicated. If you find no, unlawful sale of either one of those two kinds, then there can be no recovery here upon the part of the plaintiff. If you find that any intoxicating liquor was sold or furnished by any one or more of these three principal defendants, Byam, Bloss, or McCarthy, or by any of their respective servants, agents, or employes, and by that I mean any one who tended bar for them, to George 0. Weatherbee on June 19th at a time when he was a person in the habit of getting intoxicated, or at a time when he was in fact intoxicated, or when either or both these conditions existed, then I charge you that such sales would be unlawful, and it would make no difference whether the liquor dealer or his agent or either of them knew that Weather-bee was in the habit of getting intoxicated or that he was in fact intoxicated, the sale would be an unlawful sale whether they knew these things or not. If you find that such unlawful sale as I have just been speaking about was made, and further find that Weatherbee drank the liquors so furnished and that this liquor caused or contributed to his intoxication, if you find he became intoxicated, then the plaintiff would be entitled to recover, provided she has shown that she suffered some damage by reason of such intoxication. * * *
fTFany one of these saloon keepers made an unlawful sale, one of the kinds of unlawful sales I have mentioned, either when he was intoxicated or when he was a man in the habit of getting intoxicated, to Weatherbee, on the 19th of June, then that of itself would entitle the plaintiff to recover, something for that, provided she has shown any damages by reason of it. That would be independent of the matter of his death entirely, because she has a count in her declaration charging an unlawful sale and that she suffered some damages, but I charge you in that connection that she could not recover any damages in that case by reason of loss of support — that is, if you find — go that far only, and do not find upon the other things I am going to submit to you in regard to his death. If you stop there, and simply found a sale, but did not find that his death was the result of a sale, in that case you could not find any damages because of loss of support, for that would not be the cause of the loss of her support, but if you find that she suffered any humiliation by reason of seeing him intoxicated on that day, if you find he was intoxicated by reason of these unlawful sales, then she might recover some damages for that. Those damages would necessarily be very small, but it would be a matter for,.you to consider, but in that case recovery could only be had in case of an unlawful sale and intoxication caused or contributed to by reason of that unlawful sale.
“I further charge you, gentlemen of the jury, that in case you find that George C. Weatherbee came to his death by reason of his having-been. furnished intoxicating liquors by"TIehry L. McCarthy, George R. Byam, and William A. Bloss, and all of them, and that they all furnished him intoxicating liquors on June 19, 1906, either while he was in the habit of becoming intoxicated, or while he was intoxicated, you will pay no. attention to the question as to which, if either, of said saloon keepers furnished him the most of such intoxicating liquor, and I charge you in that connection that if the liquor furnished by any of said saloon keepers cqntributgdjn any degree to the damage of plaintiff she would be entitled to recover against that saloon keeper and his bondsmen, the same as though he had furnished the liquor to George C. Weather-bee. The law does not attempt in such cases to apportion the damage according to the amount of liquor each saloon keeper sold, if any, and even though Weatherbee might have procured some of the liquor he had, if any, from persons other than the three saloon keepers sued in this action, yet the persons sued would be responsible for the whole injury if any injury was suffered by plaintiff if the liquor sold by them or either of them contributed in any degree to the intoxication of George C. Weatherbee. That, of course, you must take in connection with the rest of my charge, providing she has shown damages resulting from it. * * *
“If you find that Weatherbee died from heart disease or because death overtook him suddenly from any cause not connected with his intoxication, then in such case plaintiff cannot recover, but if you find by reason of such intoxication, if you find he was intoxicated, and this intoxication was caused or contributed to by liquors furnished by these principal defendants or any of them, that his death is due to the fact that he was intoxicated, and that it resulted from the fact that he was intoxicated, then such principal defendant or defendants who so furnished such intoxicating liquors to George G. Weatherbee, and their bondsmen, are liable in this action, in that case, gentlemen, the same rule would apply that I explained to you a few moments ago, if they furnished some of the liquors, whoever furnished some of the liquors that_ contributed to make up his intoxication, would be liable, even though other of the liquors that made up the same intoxication were furnished by third parties.
“Evidence has been given here tending to show that Weatherbee and Broadbent had, before Weatherbee had drank any liquor on this occasion, arranged to go fishing in Maple river contrary to law on the night in question, and that they were breaking theHTaw when Weatherbee’s death occurred. It was unlawful to fish in the manner that the evidence tends to show that they were fishing in Maple river at the time in question. In other words, it was unlawful on June 19 th and 20th to fish with a net in Maple river, and if you find that Weatherbee’s death was caused solely because of the fact that they were fishing in the river with a net at the time of his death, and that the furnishing of this liquor had nothing to do with causing his death, then plaintiff cannot recover, but in order to find that his death was caused solely by his fishing in the river you must _find that his_ death occurred independent of the'result of intoxication brought about by the furnishingNFfhis' liquor, if suchTnfoxication was brought about and such liquor was furnished. The bare fact that he was fishing in the river, even though this was contrary to law, would not prevent plaintiff from recovering, providing you find that what really caused his death was the intoxication, if you find such intoxication, or the results thereof, it would not be necessary for you to find that he was intoxicated to the extent at the time of his death that he was earlier in the night providing you find he was intoxicated at all. If you find that he was intoxicated at all at the timeof Els death or firid~'tEafhe was suffering fromthe resultiTófIntoxication, so tEat Ee wasTn a feeble or"helplessruondition,' did not have the full rae of himself^ if Ee was'unable to~save himself as a resultToOhat"TntqxicatioH7~When‘otherwisehe would havesaved Eimseifbut for áuchintoxication oriihe effectsTherraf,thenyoftwVbuld be átlibertyto fiñdthatjbíis death wa^tlm^lre^ultof such intoxication, "but notwithstanding the factNhaTTyou "may find"that~he"was intoxicated on the night in question, if you should find that that intoxication had so far worn off at the time of his death that it did not cause the death in question; then the plaintiff could not recover. In other words, the intoxication in question must have been the efficient cause of his death.”

The charge was a very long one, but enough has been quoted to show the way in which the case was submitted. At the close of his charge the judge, turning to counsel, said:

“Now, gentlemen, if I haven’t stated your claims fully, I will correct them in any way, or if there is anything else? If not, swear an officer.”

The record does not disclose any response to this suggestion. Four special questions were submitted to the jury, which, with their answers, are as follows:

“ (1) Was the cause of the death of George C. Weather-bee some other than drowning ?
“A. No.
“(2) Were any intoxicating liquors unlawfully furnished to George 0. Weatherbee by or in behalf of defendant Henry L. McCarthy on June 19, 1906 ?
“A. No.
“(3) Did George C. Weatherbee meet his death solely because he engaged in fishing in Maple river with a net in violation of the law ?
“A. No.
“(4) Were any intoxicating liquors unlawfully furnished to George C. Weatherbee by or in behalf of defendant George R. Byam on June 19th, 1906 ?
“A. Yes.”

A judgment was duly entered on February 1, 1908, in favor of plaintiff and against said defendants Byam, Yoorheis, Gristock, Bloss, Duncan, and Hicks for said sum of $2,800, and plaintiff’s costs to be taxed, and in favor of said defendant McCarthy and against said plaintiff of no cause of action, together with his costs to be taxed, said judgment being a general judgment. The plaintiff has not appealed.

The trial judge had an exceedingly difficult task before him during the entire progress of the trial. He did his best to proceed in an orderly way. Counsel on both sides seemed to be more anxious to win a verdict than they were to aid the court in arriving at the merits of the controversy. Page after page of the record is taken up with objections, rulings and exceptions. It frequently occurred that after objection was made, overruled, and exception taken and the testimony was received, that at once a motion would be made to strike out the testimony, a ruling upon the motion, and an exception would follow. All this took time and incumbered the record unnecessarily. It may well be said that the method of trying this case will not be pursued in an orderly trial where counsel and court are endeavoring to reach a result which should be in harmony with justice and the law.

A large number of the assignments of error relate to the admission of testimony as to what deceased said about going fishing. It is said that testimony was hearsay and inadmissible. Even if this is true we do not see how it could be harmful error, as it appeared by defendants’ own testimony that deceased did go fishing, and it was while he was fishing in the river, having waded therein for some time, that death came to him.

A large number of the assignments of error relate to the conduct of counsel. It is clear from the record that there was an apparent unwillingness on the part of counsel to acquiesce in the rulings of the court. This was not confined to counsel upon one side. However, when counsel transgressed, the court at once attempted to correct the conduct and to remedy any harm by instructions to the jury. It is not clear to us that counsel’s side of the case was not harmed more than it was helped by the course pursued.

A large number of the assignments of error relate to the cross-examination of witnesses for defendants.- It was the claim of plaintiff that these witnesses were unfriendly to the plaintiff and were friendly to defendants, and as to some of them that during the progress of the trial they visited the saloons of the defendants and drank liquors, that some of the witnesses who had testified that deceased was not intoxicated were vigorously cross-examined to learn what they understood by drinking to excess, and by intoxication. A large latitude must necessarily be given to the trial judge in the exercise of his discretion as to how far and in what direction the cross-examination may be pursued. We are not satisfied this discretion was exceeded. Johnston v. Insurance Co., 106 Mich. 96 (64 N. W. 5); Rapalje on Law of Witnesses, p. 406; 3 Enc. of Evidence, p. 873.

A group of assignments of error relate to the refusal of the court to direct a verdict for defendants as to the fourth count of the declaration. Under the testimony shown by the record we think this was not error. Bowden v. Voorheis, 135 Mich. 648 (98 N. W. 406).

Did the court’err in refusing to submit to the jury the following question:

“Did George 0. Weatherbee, at a time when he was not under the influence of intoxicating liquors, form an intent to fish in Maple river with a net in violation of law on the occasion in question when he met his death ? ”

And in refusing to charge the jury as follows:

“ I charge you that if you find that George O. Weather-bee, at a time when he was not under the influence of intoxicating liquors, formed an intent to fish in Maple river with a net in violation of law on the occasion in question when he met his death, and further find that he met his death when he was engaged in fishing in Maple river with a net in violation of law in pursuance of the forgoing intent, then the plaintiff cannot recover in this case.”

We have already quoted from the charge of the court, so that it will not be necessary to repeat what was said. We have examined the authorities cited by counsel, and find they are not in point or are distinguishable from the case at bar. Section 5398, 2 Comp. Laws, reads in part as follows:

“ Every wife, child, parent, guardian, husband, or other person, who shall be injured in person or property, or means of support or otherwise, by any intoxicated person or by reason of the intoxication of any person; or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented, or malt liquors to any person, shall have a right of action in his or her own name, against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury, and the principal and sureties to the bond hereinbefore mentioned, shall be liable severally and jointly with the person or persons so selling, giving or furnishing any spirituous, intoxicating, or malt liquors, as aforesaid.”

It must be remembered that this is not an action between the consumer of the liquor and the seller of it, but it is an action by the wife who claims that she has been injured in her means of support because of the death of her husband occasioned by his intoxication by reason of drinking intoxicating liquors furnished by defendants. The language of the statute is very broad and very simple. It has often been before the courts. The intoxicated man who is killed while walking upon a railroad track is ordinarily a trespasser, but that does not prevent a recovery upon the part of the wife, and the fact that deceased came to his death while unlawfully fishing does not deprive the wife of the right given her by the statute.

The trial judge in a long and troublesome trial so conducted it that we find no reversible error.

Judgment is affirmed.

Montgomery, C. J., and Ostrander,' Hooker, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    MARINE SAVINGS BANK v. NORTON.

    1. Corporations — Mortgages — Principal and Agent — Ratification.
    The giving of a chattel mortgage by the president and general manager of a corporation, to secure an existing indebtedness, the proceeds of which had been used in the business for the benefit of the corporation, to the knowledge of its directors and officers, is ratified by the acquiescence of the corporation.
    3. Chattel Mortgages — Recording—Creditors Prejudiced.
    The renewal by a creditor of notes due him and the receipt of various payments on his debt after knowledge that a chattel mortgage given by his debtor had been filed, bars his right to object to the validity of the instrument on the ground that it had been withheld from record
    3. Bankruptcy — Title of Trustee.
    Under the bankruptcy act the trustee takes the property of the bankrupt, in oases unaffected by fraud, in the same condition the bankrupt holds it, and subject to the same equities.
    4. Chattel Mortgages — Recording—Validity—Creditors Injured.
    The omission to record a chattel mortgage covering after-acquired property affects its validity only as to creditors who became such during the time while it was withheld from record.
    5. Bankruptcy — Lien of Creditors.
    An adjudication in bankruptcy creates no lien in favor of creditors, upon property of the bankrupt previously sold under a chattel mortgage.
    6. Chattel Mortgages — Creditors Injured.
    A creditor of the bankrupt who understood from a commercial report that the mortgage covered all stock and machinery, when it affected only the former, is not prejudiced by a reformation of the instrument so as to include after-acquired chattels.

      7. Reformation of Instruments — Mortgages — After-Acquired Property — Evidence.
    The admitted error of parties in omitting to include after-acquired property from a chattel mortgage is sufficiently supported to warrant a decree reforming the mortgage, by evidence that the parties subsequently to its execution treated such property as included.
    8. Equity — Clean Hands.
    Evidence held not to sustain the claim that complainant who prays for the reformation of a chattel mortgage does not come into court with clean hands.
    9. Reformation of Instruments — Mistake of Law — Jurisdiction.
    The failure to include after-acquired property in a chattel mortgage is a mistake of fact which may be corrected in equity.
    10. Same — Bankruptcy—Laches—Chattel Mortgages.
    In a case where the agreement to include subsequently acquired chattels in a mortgage was acted upon by foreclosure and sale, it is too late for the trustee in bankruptcy to attack the proceedings, as to property of which he had never had possession, and against which no liens had attached.
    Appeal from St. Clair; Law, J.
    Submitted December 15, 1909.
    (Docket No. 143.)
    Decided April 1, 1910.
    Bill by the Marine Savings Bank and others against Charles E. Norton, trustee in bankruptcy of Lindow Bros.-Beers Company, for the reformation of a chattel mortgage and to enjoin an action at law. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Frank T. Wolcott, for complainants.

      Henry G. Walters (E. 8. Black, of counsel), for defendant.

      Rehearing denied May 7, 1910.

   McAlvay, J.

Complainants filed their bill of complaint against defendant praying for the reformation of a certain bill of sale given as security for the purpose of correcting the description of the property to include certain after-acquired and manufactured property intended to be described, also for an injunction against defendant trustee from prosecuting an action at law against complainants, and that said trustee and the creditors he represents may be held equitably estopped from asserting any claim against the validity of such security. The case was heard upon pleadings and proofs taken in open court, and a decree was granted denying the relief and dismissing the bill.

Upon an appeal by complainants a large record is presented, and although there appears to be practically no dispute upon the material facts involved, and the case will be determined upon questions of law, yet it will be necessary to give considerable space to a statement of the facts in the case.

The bankrupt, Lindow Brothers-Beers Company, was a Michigan corporation, organized and doing business at Marine City, Mich., engaged in retailing lumber, posts, lath, shingles, and other materials, also in manufacturing sash, doors, blinds, and tables. It was incorporated in March, 1904. This incorporation was brought about by the members of the copartnership of Lindow Bros. & Beers, who for several years theretofore had at that place been engaged in a retail lumber business, owning and running a planing mill, and manufacturing doors, sash, etc., and was composed of John W. Lindow, Ferdinand H. Lindow, and John W. Beers. They desired to organize this corporation and secure additional capital to go into the business principally of manufacturing certain patented extension tables. Their assets consisted of certain real estate in Marine City, a dock on Belle river, a planing mill and machinery, also a stock of lumber, paint, nails, glass, and other merchandise and personal property. The real estate was subject to a mortgage of $7,500, and the personal property was subject to a chattel mortgage to the Marine Savings Bank to secure a note of the co-partnership at that bank of $4,000.

The corporation was organized to take over the business and assets of this partnership and to engage in the business above designated. A resolution was adopted at a meeting of the stockholders of the corporation who included the members of the copartnership with others, on March 24, 1904, and afterwards the same resolution at a meeting of the directors who included these copartners and four others, on the same day authorizing a conveyance to it by Lindow Bros. & Beers of all their right, title, and interest in said real estate, describing it, and machinery at an agreed consideration of $11,900, also all paint, nails, glass, horses, wagons, etc., office furniture, and safe as per inventory at $1,350, also all stock on hand in their yard and all merchandise and goods in process of manufacture, and all other personal property as per inventory, $15,243.80, also to assign to the corporation the contract relative to a patent extension table to be manufactured by the corporation and the good will of the business, in consideration of which transfer the president and secretary of the corporation were instructed to issue to these parties, or to whomever they might request, $24,480 capital- stock at par and to execute and deliver to them the corporate note for $4,010.

John W. Lindow was elected president and general manager, S. S. Jameson, secretary, and John W. Beers, treasurer, of the corporation. The property was transferred to the corporation, and the stock issued as directed; but the note for $4,010 was not executed and delivered. The books of the corporation show that a note then held by the Marine Savings Bank, secured by chattel mortgage on personal property included in this transfer, was assumed by the corporation when it came due on May 7, 1904, and the corporation made a payment of $300 upon it and gave its note for the balance of $3,700. The corporation later borrowed $500 from this bank, giving its note therefor, and on August 8, 1904, at the time the first note came due, gave its note for $4,200, which included both amounts. When the additional amount of $500 was borrowed, the cashier of the bank insisted upon chattel security for the entire indebtedness to cover all personal property on hand, and that acquired afterwards. Such an arrangement was entered into between the bank and certain officers of the corporation, and as security a bill of sale was made and executed by the president and general manager, and delivered to the bank, on September 2, 1904.

It reads as follows:

‘c Know all men by these presents: That Lindow Brothers-Beers Company, a domestic corporation of the city of Marine City in the county of St. Clair and State of Michigan, of the first part, for and in consideration of the sum of four thousand two hundred dollars, lawful money of the United States, to it paid by Marine Savings Bank, a corporation of the same place, of the second part, the receipt whereof is hereby acknowledged, has bargained and sold, and by these presents do grant and convey unto the said party of the second part, its assigns, all the following goods and chattels, to wit: All the lath, lumber, posts, shingles, and all other material now located in our lumber yard in the city of Marine City; also, to cover all other lumber, lath, posts, and shingles that may be purchased by first parties in connection with their business; also, all manufactured goods, such as sashes, doors, blinds, tables, mouldings, and glass, and all other manufactured material belonging to said Lindow Brothers-Beers Company, a corporation, and now in its possession at its lumber yards in the city of Marine City. To have and to hold, the same unto the said party of the second part, its administrators and assigns, forever. And the said party of the first part, for itself, does covenant and agree to and with the said party of the second part, its executors, administrators, and assigns, to warrant and defend the sale of said property, goods, and chattels hereby made with the said party of the second part, its executors, administrators, and assigns, against all and every person or persons whatsoever. This bill of sale is given as collateral security to two certain promissory notes given by first party to second party for $3,700.00 and $500.00, aggregating $4,200.00, and security for any renewals thereof.
“ In witness whereof, it has hereunto set its hand and seal this second day of September, 1904.
“Lindow Brothers-Beers Company, L. S.,
“Per John W. Lindow, L. S., President.
“Signed, sealed, and delivered in presence of Geo. W. Carman.
“Piled April 31, 1905.”

At the time this security was given, it was not filed at the request of the officers of the corporation who were engaged in selling its capital stock for the purpose of purchasing machinery and erecting buildings to increase facilities for carrying on business, and between that time and the date of filing this security, April 31, 1905, did realize on the sale of stock the sum of $8,500, substantial^ ly all of which was used to pay debts, but no part of which was applied on this indebtedness. Between the time of giving and recording this mortgage security, the incorporation incurred debts to a considerable amount upon credit then extended to it.

After the incorporation cash was realized from the sales of capital stock amounting to $13,000. Nothing, however, was paid reducing the indebtedness to the bank. Some time later, and about the time the mortgage was filed, an application was made to the bank by the general manager of the corporation to release more than $3,000 worth of lumber held under the mortgage. A committee of the directors of the bank went to the plant and made an inventory of all stock and material, including tables completed and partly finished, as pointed out by the general manager, who transacted the business, as being included in the security, and relying on his statement to that effect, and upon such examination being satisfied that the property was sufficient security, consented to the release of this lumber which was admittedly covered by the mortgage, and which was then sold by the corporation and the proceeds paid to its general creditors, but none was paid to the bank. During the first year of its incorporation, the company increased by actual additions in buildings, etc., its real estate account $9,768, and its machinery account $3,534. The two items amount to about $1,000 more than the amount of stock sold during that time. The record shows that these improvements and additions were made for the purpose of providing for the manufacture of tables. Later the business was not successful, and efforts made to interest more capital or to change location failed. The bank, not being able to obtain any payment on the indebtedness secured by its mortgage, began foreclosure on February 6, 1906, and by the sheriff took possession of such of this property as was pointed out by the president and general manager as included in the security, and gave due notice of foreclosure sale to take place February 13, 1906. At the time of taking possession of this property for the purposes of foreclosure, and at the time of said sale, none of the creditors of the corporation had any lien upon it by levy, attachment, judgment, or in any other way; nor had any suits been commenced by any creditors prior to the date of sale, nor were any suits by creditors now pending.

On February 13, 1906, the day of the sale, the attorney of petitioning creditors served notice on the bank that an involuntary petition in bankruptcy had been filed February 8, 1906, and that it was claimed that the mortgage did not cover the property taken or goods manufactured after September 2, 1904, and that the creditors had precedence over the bill of sale, for the reason that their claims accrued after the making of the bill of sale and before the filing thereof. The property taken on foreclosure was sold in certain small parcels for $503.25 to different persons, and the balance to the Marine Savings Bank for $1,700. Afterwards the bank sold what it had purchased to complainants Saph and Fredericks for sufficient to satisfy the balance of its claim, including costs and expenses.

On February 8, 1906, certain creditors filed a petition in bankruptcy in the Federal court against this corporation. On February 15th its answer was filed admitting insolvency, and on the 19th it was adjudged bankrupt by the referee. At the first meeting of creditors defendant, Charles E. Norton, was elected trustee and qualified on the same day. On this day Mr. Saph was present and requested the referee to make an order authorizing the trustee to permit himself and Fredericks the use, on reasonable terms, of the buildings where this property was stored. No objection being made by the creditors and their attorneys who were then present, the referee instructed the trustee to allow them that privilege on reasonable terms. On March 10, 1906, notwithstanding such order, the trustee, under the advice of counsel, took off the locks belonging to Saph and Fredericks that were on the buildings and took possession of the property purchased by them from the bank, and on the same day filed a petition in the Federal court asking for a restraining order to prevent them from interfering with the possession of the trustee, and also a petition that they be adjudged guilty of contempt for interfering with the trustee. Afterwards, when their answers were filed to these petitions, they were discharged from the contempt proceedings, the restraining order was dissolved, and the trustee instructed to give them possession of the property and permit them the use of the premises on reasonable terms. The property was then disposed of by Saph and Fredericks at a small net profit. Nothing further appears to have been done until July 13,1906, when the attorneys for the trustee demanded of the bank the sum of $4,000, the value of the property taken, and gave notice if it was not paid within five days suit would be brought. On September 1st an action of trover was instituted by the trustee against the complainants in the suit at bar. On October 17, 1907, the bill of complaint in this case was filed for the reformation of the mortgage contract and for an injunction restraining the action in trover, for which a bond in the sum of $10,000 was filed.

According to the schedule of liabilities in the bankruptcy proceedings, the amount of unsecured liabilities are as follows: Preferred labor claims, $634.87; bills payable, $8,072; accounts payable, $2,746 — total, $11,452.87.

The record does not show what amount, if anything, is due on accounts incurred between September 2, 1904, and April 21, 1905, nor what property purchased between those dates, if any, was on hand at the time foreclosure proceedings were had. That a court of equity has jurisdiction to correct mistakes in deeds and other written instruments, and to reform the same to comply with the intention of the parties, as a general proposition, is not in dispute in this case.

The first question raised relates to the validity of the notes and mortgage given to the bank by the corporation. The mortgage is attacked as invalid because given without authority and not afterward ratified, and the notes, as without consideration — at least no present consideration. These objections were first raised upon the hearing of the case. The bill of complaint alleges the indebtedness of $4,200 represented by two notes of $3,700 and $500, and the mortgage^given to secure them, all charged as having been made, executed, and delivered by the corporation to the bank. The answer makes no denial on oath of the execution and delivery of the notes or the authority of the officers so to do; nor is there any denial of the execution of the mortgage.

As appears in the statement of facts, authority was given to execute and deliver to the members of the partnership, as part payment for the property transferred to the corporation by them, a note for $4,010. What the officers of the corporation did was to assume a note of like amount given by the firm, and held by the bank, and when it came due a payment of $300 was made upon it by the corporation, leaving a balance of $3,700 for which it gave its note. It had borrowed from the bank in the ordinary course of business $500 and given a note therefor. In this manner the instructions of the stockholders and directors to give a $4,000 note were in effect carried out, and for a present consideration, i. e., part of the purchase price of property received. The $4,000 note autborized by the corporation was for the purpose of taking care of this liability of the copartnership.

The transaction was entered upon the books of the corporation at the time, and the record does not show that it was ever questioned. These are the notes referred to in the mortgage, and to secure which it was in terms given. They were later renewed and combined into one note of $4,200, which was executed by President and General Manager Lindow, and indorsed by Treasurer Beers, and was renewed from time to time. There is no record of any action of the board of directors authorizing the execution of these specific notes; nor does there appear of record any action authorizing the execution and delivery of the mortgage security. This indebtedness and the mortgage were discussed before a full board of directors after the mortgage was given, and the giving and execution of it were not questioned.

President and General Manager Lindow contracted all of the indebtedness of the corporation. He made loans at this and another bank, incurred expenses of more than $12,000 in erecting buildings, buying machinery, and conducting the business of the corporation, and was permitted to do so, yet there is no record giving him any authority in any specific instance, and the record does not show that any other act of his was ever questioned. There is no question of fraud or bad faith in any of these transactions. He was the largest stockholder and the active man of the concern and was held out to the public as having authority to transact the business of the corporation. It has acquiesced in, adopted, and ratified all that he has done. Under these circumstances the corporation ought not to be allowed to avoid his acts, but should be bound by them. Preston Nat. Bank v. Purifier Co., 84 Mich. 384 (47 N. W. 502), and cases cited; Hirschmann v. Railroad Co., 97 Mich. 384 (56 N. W. 842); Michigan Slate Co. v. Railroad Co., 101 Mich. 26 (59 N. W. 646).

The trustee in bankruptcy,—

“Under the bankrupt act, takes the property of the bankrupt at the date of the adjudication, in cases unaffected by fraud, in the same plight and condition that the bankrupt himself held it, and subject to all the equities impressed upon it in the hands of the bankrupt.” York Manfg. Co. v. Cassell, 201 U. S. 352 (26 Sup. Ct. 481), citing Thompson v. Fairbanks, 196 U. S. 516 (25 Sup. Ct. 306).

In stating that there was no question of fraud or bad faith in the transactions between the parties in this case, our conclusion is founded upon our examination of all of the evidence, which fully justifies the finding of the trial court that—

‘£ There seems to be no doubt but that the officers of the complainant bank believed in good faith that the mortgage covered all of the property of the Lindow Bros. -Beers Company in both the milling and table departments, including manufactured goods and material on hand at any future time.”

The learned trial judge might have added the same statement as to the officers' of the corporation who were connected with the transaction.

Relative to the question of withholding the mortgage from record from September 2, 1904, until April 21, 1905, it is conceded that no creditor who did not during that time extend credit to the bankrupt can avoid it, and it is not claimed by any one that after it was filed there was any fraud, active or constructive, practiced in relation to it. We have stated that the record is silent as to the amounts, if any, due on accounts incurred between the dates mentioned. The subject is but briefly referred to in the record. We infer from the testimony of the bookkeeper and the absence of other proof that such accounts were substantially all paid. But one creditor makes any such claim, and it appears that after he knew the mortgage was filed he received payments on his account and repeatedly had notes to him renewed. It follows that the question as to whether this mortgage was void as to such creditors is eliminated from the case, and the question of the construction of the statute relative to chattel mortgages (section 9523, 3 Comp. Laws), which has been presented at length and discussed in the briefs of both parties, will not require determination.

We come now to the consideration of the right of the defendant trustee, as representing the general creditors of the bankrupt, to interpose the defenses relied upon and presented. We take it that it will not be disputed that he, as such trustee, will be limited to such defenses on their behalf only as they would be entitled to rely upon.

Attention is again called to the fact that no liens of any description have attached to this property; that under the mortgage regular foreclosure proceedings were had, by taking possession of all the property claimed under it, giving notice, and making sale before the issuing or service of any process or restraining order in bankruptcy, or any other proceedings against a complainant bank or the sheriff. The petition in bankruptcy was filed before the sale, but the adjudication of bankruptcy was made after-wards. Such adjudication, however, does not create a lien in favor of the creditors, and is not equivalent to a judgment attachment, or other specific lien upon the assets of the bankrupt. York Manfg. Co. v. Cassell, 201 U. S. 344 (26 Sup. Ct. 481).

The record does not show that any creditors were misled on account of the wording in the description of the mortgage sought to be reformed. One witness, a creditor, was produced. It does not appear that he ever saw the mortgage, or knew what the description in the mortgage actually covered. Tie had seen a Dun & Co. report, made a few days after the mortgage was filed, which showed, “ Chattel mortgage, $4,000.00,” and,

“ The records show that this mortgage covers all material located in lumber yard and in connection with the lumber business, but is not on the machinery.”

This witness said:

“ I did not ever consider for one moment that the morfcgage covered anything more than it showed. I never heard of a mortgage that did do° so. * * * I considered that it was a chattel mortgage on stock and machinery.”

This is his construction of what he thought the mortgage covered, which, if true, would double the security. It is of no value as evidence that he was misled and is all there is in the case upon that subject. There are no rights of stockholders of the bankrupt corporation to be adjusted in this suit. It is solely a dispute between the complainants and the trustee representing the general creditors. If this reformation is proper to be made between the parties to the mortgage, these general creditors cannot in this case object.

The parties to the mortgage agree that it does not contain the contract intended, which was agreed upon between them. There is no dispute between them, and no claim that either was misled by the other. After the mortgage was executed and delivered, both parties to it acted upon the belief that it covered and included all after-acquired manufactured goods, tables, and material. Of the lumber about which there is no dispute, upwards of $2,000 wc|?th was released by complainant bank at the mortgagor’s request, after a committee of the bank directors had made a personal examination of the property and an estimate of its value, in company with the president and general manager, who pointed out to them these after-acquired manufactured goods and material as covered by the mortgage, and they agreed that there would be enough property remaining after releasing this lumber to secure the bank indebtedness, and upon this investigation and report the lumber was released. The proceeds of this lumber were applied to the payment of debts, and none was paid to the bank, nor did it receive any of the receipts realized from capital stock sold. These acts bear but one reasonable construction, and that is that the after-acquired property was included in their agreement.

It is urged that complainant bank does not come into court with clean hands and is therefore not entitled to relief. Our examination of the evidence and our conclusions already expressed upon certain features of this case do not sustain such a contention. It appears to us that the contrary is true. These acts of complainant bank have been held by the trial court to have been in good faith. The court found:

“There seems to be no doubt but that the officers of complainant bank believed in good faith that the mortgage covered all of the property of Lindow Bros.-Beers Company, in both the milling and the table departments, including manufactured goods and material on hand at any future time.”

There remains for consideration the question whether the court on the case presented will decree a reformation of the description of the property in this mortgage to include after-acquired material, etc., as prayed in the bill of complaint. It is claimed that, the mistake sought to be corrected being a mistake of law, no relief will be granted. The record supports the contention that the after-acquired property was included in the oral agreement, and was left out of the writing by a mistake of fact. We do not find it necessary to discuss or question the attitude of this court in former opinions on the proposition that equity will not relieve from a mistake of law. All the cases in this State where such a rule was stated are where one party to the contract denies the mistake and opposes reformation. In no case have the parties agreed as to the terms of the oral contract under the same mistake and written an instrument which does not express such agreement because a material portion has been omitted by mistake. There aré well-considered cases which hold that under such circumstances reformation will be granted. Pitcher v. Hennessey, 48 N. Y. 415, at pages 423, 424, and cases cited; Stafford v. Fetters, 55 Iowa, 484 (8 N. W. 322), and cases cited; Clayton v. Bussey, 30 Ga. 946 (76 Am. Dec. 680); 34 Cyc. p. 914c, and cases cited; Lee v. Percival, 85 Iowa, 639 (52 N. W. 543).

Most of these are cases from courts holding the rule that relief will not be given from a mistake purely one of law. Some writers hold that such cases are made an exception to the general rule. It may be inferred from some of the opinions, particularly the New York case, which holds that it matters not whether such a mistake may be called one of law or of fact, that the true reason for such decisions is because the mistakes are really mistakes of fact and not of law. The mistake in this case may be said to have been proved beyond a reasonable doubt. It is proved to have been mutual to both parties, and the writing does not express the agreement of the parties when their minds met. It is not necessary in this case that from the instrument it must appear to third parties that something was intended and not expressed.

There is another reason why defendant cannot contest complainant’s contention in this case, and that is that he comes in too late. Complainant bank has always claimed this after-acquired property under this mortgage, which does not in terms provide for future acquisitions, and its claim is undisputed until after foreclosure and sale. A strong equity is raised in favor of the mortgagee as against future additions, and, though that equity would not prevail against a levy while it was no more than a general equity, yet, where by valid and formal agreement and otherwise it has become actually attached to the goods before levy, it would prevail. People v. Bristol, 35 Mich. 28, at page 33.

By agreement this property was taken by the mortgagee from the possession of the mortgagor, advertised, and sold. No liens had attached, and none have ever been claimed. The property was never in the possession of the trustee. The contest of defendant is not timely. Cameron v. Marvin, 26 Kan. 612; Kelley, Maus & Co. v. Andrews, 102 Iowa, 119 (71 N. W. 251); Jones on Chattel Mortgages (5th Ed.), § 60; Dolan v. Van Demark, 35 Kan. 304 (10 Pac. 848); 2 Story on Equity Jurisprudence (13th Ed.), § 1231.

Complainant bank had a right to foreclose its lien. In re Mertens, 144 Fed. 818, 75 C. C. A. 548 (15 Am. Bankr. Rep. 362); Peck, Trustee v. O’Connell, 6 Am. Bankr. Rep. 93; Botts v. Hammond, 99 Fed. 916, 40 C. C. A. 179 (3 Am. Bankr. Rep. 775).

The decree of the circuit court is reversed, and a decree will be entered for reformation and a perpetual injunction as prayed, such reformation to take effect as of the date of the original instrument, with costs of both courts to complainants.

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