text:
    MESHEW v. SOUTHWORTH.
    1. Specific Performance — Contract—Pleading and Proof.
    In a suit for the specific performance of a written contract, complainant cannot show that the contract is different from that set out in the bill.
    3. Same — Vendor and Purchaser — Title—Abstract—Incumbrances.
    A vendor in a land contract, who was required by its terms to furnish an abstract showing a good and sufficient title, cannot enforce a specific performance thereof, where, the abstract furnished was not brought down so as to show title in himself, and there was a mortgage on the premises, which was not discharged until after the commencement of the suit.
    Appeal from Cass; Carr, J.
    Submitted February 24, 1903.
    (Docket No. 118.)
    Decided May 29, 1903.
    Bill by Charles H. Meshew against Cena E. South-worth for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Freeman J. Atwell (Coy W. Hendryx, of counsel), for complainant.

      Charles E. Sweet (Clyde W. Ketcham, of counsel), for defendant.
   Moore, J.

Complainant filed this bill in October, 1901, to obtain a decree for- the specific performance of a land contract. From a decree dismissing the bill of complaint, the complainant, has brought the case here by appeal.

The material portions of the written contract are as follows:

“This agreement, made and entered into this 10th day of August, 1901, by and between Charles H. Meshew, party of the first part, and Mrs. C. E. Southworth and husband, R. W. Southworth, parties of the second part, all of Dowagiac, Michigan, witnesseth:
“ That the party of the first part, for and in consideration of the agreements hereinafter specified to be by the party of the second part performed, hereby agrees to convey to said party of the second part by warranty deed from Charles H. Meshew and wife, Elizabeth C. Meshew, the following described property situated in Dowagiac, Cass county, Mich., and being lots Nos. forty-one (41), forty-two (42), and forty-eight (48) in Meshew’s Fair Ground Addition to the City of Dowagiac, according to the recorded plat thereof.
“And the party of the second part for their part, for and in consideration of the agreements above specified being by the party of the first part well and truly performed, do hereby agree to assign and deliver, or cause to be assigned and delivered, to said party of the first part, his heirs or assigns, an undivided one-half (£) interest in [a $1,600 mortgage]. * * *
“It is hereby further mutually agreed and understood by and between the parties hereto, and as part of the consideration of this agreement, that each party hereto is to provide for the use of the other, within ten days from the date hereof, proper abstracts of title of the property hereby agreed by them to be conveyed or caused to be conveyed, showing good and sufficient title to the same in the grantors herein mentioned; and also that each party shall pay all other costs incident to his part of the negotiation. All deeds to be passed, and this negotiation to be closed, within ten days from the time that examination of the aforesaid abstracts of title shall have been completed.”

On the 16th of August, 1901, the complainant delivered to Mrs. Southworth the only abstract of title which he ever delivered to her. This statement of title was not brought down to any later date than September, 1899, and it was a statement of title to 23 acres off from the south end of the west half of the southeast quarter of section 31, town 5 south, range 15 west, excepting 1£ acres in the southwest corner thereof, formerly owned and occupied by Henry Clark, Wayne township, Cass county, Mich. It showed the title to this land was in the City Bank of Dowagiac. It did not show what conveyances, if any, or what changes, had been made in the title later than September 16, 1899. It did not show, and there is nothing in the record to show, that the land described in the statement of title was ever platted into lots, which plat was recorded.

On the 23d of August, 1901, Mrs. Southworth sent a letter to complainant, notifying him of her intention to rescind the contract, and stated:

“ The grounds for such rescission are the failure on the part of said Charles H. Meshew and Elizabeth C. Meshew to perform their part of their contract which was to be performed within ten days after the same was entered into.”

To this letter, complainant replied that he would not consent to a rescission of the contract; saying, among other things:

“ If the abstract that I have furnished is unsatisfactory, I stand ready to satisfy you in any reasonable way upon your complying with your part of the contract, and showing wherein my abstract is unsatisfactory to you; in fact, I stand ready to comply with all the terms and conditions of our contract, and trust that I may not have to take steps to enforce specific performance upon your part.”

On the 27th of August he made a warranty deed of the lots, and tendered it to Mrs. Southworth, and at the same time read to her a letter written by him, containing, among other things, the following statement: ■

“ I am ready to deliver this deed to the aforesaid lots at any time up to and including August 30, 1901, provided you have satisfied me that your title to the property that you are to convey is or can be made perfect at the time that you transfer the same to me. I am ready to comply with any reasonable i’equest that you may make with reference to the title to the property that I herein propose to convey, and do convey by the warranty deed herewith submitted. You will find that the aforesaid lots are covered by a mortgage held by the City Bank, which mortgage recites that upon the payment of $60 per lot they will discharge said mortgage as to those particular lots. You may verify this by conferring with F. W. Lyle of the aforesaid bank.”

He has never made to her any other tender of a deed. Mrs. Southworth declined to accept the deed so tendered. At the time this deed was tendered, the bank had a mortgage calling for the payment of $60 on each of these lots. It appeared upon the trial that by two deeds the title to the 23 acres which the bank had owned was conveyed to the complainant on the 18th of December, 1899, but the bank still held a mortgage on said property. There is nothing in the record to show that these two deeds were ever called to the attention of the defendant until they were filed in evidence in this case upon the trial, May 17, 1902. The record shows that the mortgage on said lots was not discharged of record until the 13th day of March, 1902.

It is the claim of complainant that, at the time the contract was drawn, there was an oral understanding with reference to the obtaining of the dischai’ge of the mortgage from the bank at the time the papers were exchanged between the parties to the contract, and it was sought to establish an entirely different contract, by parol, from the written contract which is sought to be enforced. We think it hardly necessary to suggest that, inasmuch as this is a bill asking a specific performance of a written contract, if there was no other rule of law which would forbid the setting up of another contract, it could not be done in this proceeding. Without going into 'detail as to what is disclosed by the oral testimony, we have recited enough from the record to show that complainant has never performed what he agreed to perform by his written contract, and that he was not the owner of the land in controversy, free from all incumbrance, at the time he made a conditional tender of the warranty deed, and that it was not until long after this bill was filed that he obtained a discharge of the incumbrance which was upon the lots which he had agreed to sell to the defendant. The facts disclosed by the record do not call for any discussion of legal principles.

The decree of the court below is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    HOGADONE v. GRANGE MUTUAL FIRE-INSURANCE CO.
    1. Deeds — Record—Nondelivery—Intent to Pass Title — Fire Insurance — Breach of Condition of Policy.
    Where a deed is executed and recorded, but not delivered, and there is no intention on the part of the grantor that title shall pass, it does not do so. Such circumstances, therefore, do not constitute a breach of a condition of a fire policy against any “change of title or ownership” of the property insured.
    2. Same — Evidence—Findings of Court.
    Upon an issue whether title had passed by plaintiff’s deed to his wife, which he had caused to be recorded but had not actually delivered, he testified that the deed was made with intent to transfer the property, and that, when he placed it on record, he understood that he had transferred the property, and that the title was then in her; but he also testified that he did not intend to give her the property and release his claim to it, and that his only object was to get the record title out of his name, so as to ward off 'creditors. Held, to justify the court in refusing to find an intent to pass title.

      3. Fire Insurance — Mutual Companies — Provision for Arbitration — Construction.
    A provision in a fire policy issued by a mutual company, to the effect that, in case of disagreement “ as to the amount of valuation, in whole or in part, said matter in difference shall be determined by the arbitration committee,” whose decision as to “the justness or validity of such claim” shall be final, and preclude any suit “to fix such amount or valuation,” relates only to cases of disagreement as to the “valuation,” and is not applicable to a controversy between the parties in which the validity of the claim against the company is in question.
    Error to Kent; Perkins, J.
    Submitted April 7, 1903.
    (Docket No. 3.)
    Decided May 29, 1903.

      Assumpsit by George P. Hogadone against the Grange Mutual Fire-Insurance Company of Kent and Ottawa counties on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Lombard & Hext, for appellant.

      E. J. Adams and Colin P. Campbell, for appellee.
   Carpenter, J.

Plaintiff recovered a judgment of $600 in the court below for loss under an insurance policy issued by defendant. The trial took place before the court, who made a finding of facts. Defendant asks to have that judgment reversed, first, because the policy became void by reason of a transfer of the property from plaintiff to his wife; second, because a provision in the policy gave exclusive jurisdiction to the" auditing committee of defendant’s organization to determine the controversy. The finding of the trial court, so far as material to the controversy in this court, is as follows:

“That-on the 17th day of October, 1899, the said defendant issued a policy of insurance to the said plaintiff in the sum of $2,079 upon the following described property, and in the several amounts stated: Dwelling house number one, and accompanying outbuildings, $600; * * * personal property, $825. * * ■*
‘“In case of disagreement with the loser of property insured as to the amount of valuation, in whole or in part, said matter in difference shall be determined by said auditing and arbitration committee, and, in case of such disagreement, said board shall notify such loser of property, and give him an opportunity to appear before such board within SO days thereafter, and present such evidence as he may to establish the justness or validity of such claim; and such board shall try, hear, and decide upon the justness or validity of such claim, and such decision shall be final and binding upon such claimant and said company, and no suit in law or equity shall be commenced or maintained by any such loser or beneficiary to fix such amount or valuation. * * *
“ ‘In case of any increase of risk to property insured in this company, or any change of the title or ownership of insured property, ■* * * the policy shall be null and void.’ * * *
“October 30, 1899, tbe plaintiff was indebted as accommodation indorser upon some notes which were then, and had been for some little time, a source of annoyance to him. He advised with Mr. Fitz Gerald, an attorney at law and a member of this bar, and a gentleman friend and neighbor by the name of Kipp, and, acting under their advice, he did, on the 30th day of October, 1899, execute a warranty deed running to his wife, covering the lands upon which the buildings described in said policy of insurance were situated. Said deed was, by its terms, made subject to two mortgages, aggregating $4,000. Upon the same day of its execution he left it for record with the register of deeds of said county, where it remained until after the commencement of this suit, when it was delivered back to him, and he delivered it to his attorney in this case. His wife knew of the plaintiff’s indebtedness, and that his creditors were threatening to enforce the same. The plaintiff, before executing the deed, told her that he,had taken counsel, and had been advised to transfer the title to her to- keep it away from his creditors, but he didn’t know what he would do; and, within a few days after making and recording the deed, he told her that he had done so, and, when so told by her husband, she made no objection to it, nor did she express an acceptance of it. There was no consideration passed from the wife to the husband for the deed, no change in the occupancy of the premises, and the plaintiff continued in' full control of the premises described in the deed, selling the products, appropriating the money to his own use, paying the taxes, and exercising the identical and same control in every respect as before the deed was made. His sole purpose in making said deed was to frighten off the creditors that were annoying him, by reason of this accommodation indorsement, and prevent their getting the property. The wife never had manual possession of the deed, and never saw it until she was upon the witness stand in this trial.
“ On the 21st day of February, 1901, the house and contents were destroyed and damaged by fire, — the house entirely destroyed, some of the contents entirely destroyed,, and some of them partially destroyed. * * *
“ On the 18th day of May the said auditing and arbitration committee met, and rejected plaintiff’s claim as to the real estate, and allowed it as to the personal property at the sum of $179.25, which amount was afterwards paid to the plaintiff by the defendant, and accepted by the plaintiff to apply upon his claim.”

1. Did the plaintiff avoid the policy by transferring the property to his wife ? According to the finding of facts, though the deed was recorded, it was never delivered, and plaintiff did not intend that the title should pass. Under these circumstances the title would not pass. Stevens v. Castel, 63 Mich. 111 (29 N. W. 828); Davis v. Davis, 92 Iowa, 147 (60 N. W. 507); Weber v. Christen, 121 Ill. 91 (11 N. E. 893, 2 Am. St. Rep. 68); McGraw v. McGraw, 79 Me. 257 (9 Atl. 846). Defendant’s counsel, however, strenuously insist that the undisputed evidence required the trial court to find that plaintiff left the deed for record with intent to pass the title to his wife, and error is. assigned because such finding was not made. As might be expected, the only witness who gave direct testimony respecting this intent is the plaintiff himself, and defendant insists that it was the duty of the court as a matter of láw to find that this testimony proved such intent. It is true that plaintiff testified, when being examined by defendant’s counsel, that the deed was made with the intent of conveying and transferring the property, and that, when he placed the deed on record, he understood that he had transferred the property to his wife, and that the title was then in her. Subsequently, while under the examination of his own counsel, however, plaintiff testifled that he did not intend to give his wife the place and release his claim to it; that his sole and only purpose was to make the record title appear out of his name, for the purpose of frightening off or warding off an unjust claim; that he handed the deed to the register of deeds to change the record, and that he did not understand the difference between the record title and the actual title. While this testimony would have warranted the finding that there was an intent to pass the title, it is equally clear that, considered with the other facts found, — viz., plaintiff’s desire to deceive his creditors, and at the same time keep the property, — it justified the court in refusing to make that finding. We cannot say, therefore, that the court erred in refusing to make the finding requested by defendant.

2. Did the contract of insurance give defendant’s arbitration committee exclusive jurisdiction to determine this controversy between the parties? If it did, under the authority of Canfield v. Knights of Maccabees, 87 Mich. 626 (49 N. W. 875, 13 L. R. A. 625, 24 Am. St. Rep. 186); Hembeau v. Knights of Maccabees, 101 Mich. 161 (59 N. W. 417, 49 L. R. A. 592, 45 Am. St. Rep. 400); Fillmore v. Knights of Maccabees, 103 Mich. 437 (61 N. W. 785); Raymond v. Insurance Co., 114 Mich. 386 (72 N. W. 254); and Russell v. Benefit Ass’n, 116 Mich. 699 (75 N. W. 137),—it would afford a complete defense to this suit. But we are of the opinion that the agreement for this arbitration relates only to cases of “ disagreement as to the amount of valuation, in whole or in part,” and therefore is inapplicable to this controversy, in which the disagreement related to the validity of the claim.

The judgment of the court below must therefore be affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    WILLIAMS v. DAVISON’S ESTATE.
    1. Guardian and Ward — Gifts—Validity.
    An instrument executed by n minor ward, purporting, in consideration of love and affection, and of the care and attention bestowed on her by her guardian, to convey to the latter an interest in the ward’s share of the estate of her deceased father, then in the hands of trustees, is unenforceable.
    3. Same.
    So, too, is a like instrument, executed by a ward, in response to the importunities of the guardian, soon after arriving at majority, and before the settlement of the guardian’s accounts.
    Appeal from Wayne; Carpenter, J.
    Submitted April 8, 1903.
    (Docket No. 7.)
    Decided May 29, 1903.
    Petition by Elvira Vail Williams to enforce an assignment of an interest in the estate of Crosier Davison, deceased. From an order denying the petition, petitioner appeals.
    Affirmed.

      Fred H. Aldrich, for petitioner.

      Fred G. Harvey, for defendant.
   Montgomery, J.

The will of Crosier Davison bequeathed to his executors, as trustees, a residuum of his estate, with directions to receive the rents, profits, and accumulations until the youngest of two daughters should attain the age of 25 years, paying them, from, such rents, profits, and accumulations, certain annuities, and directing a division of this residue equally between the two daughters when the youngest should reach the age of 25 years. The petitioner, Elvira Vail Williams, then a maiden lady, and a sister of the testator’s wife, was by a codicil of the will allowed §5 per week from the estate so long as she remained with testator’s -daughters; and at the same time a provision was made for her by the execution of deeds of realty, to be delivered at the testator’s decease, and which were in fact delivered, from which an income of about $70 per month was derived. The petitioner was also appointed guardian of the two daughters, Hattie M. and Carrie M.

On the 21st of May, 1894, each of the daughters executed an instrument reciting that in consideration of the constant and faithful care and attention bestowed by petitioner, and in consideration of her care and attention bestowed upon the father and mother in their last illness, and in consideration of love and affection felt because of her motherly demeanor and attention, it purported to assign, convey, and set over to said Elvira Vail Williams the sum of $5,000 of her interest in the estate of her deceased father, and purported to authorize the executor to pay the same to petitioner. The two instruments were alike in form, and were executed at a time when Hattie M. was still under age and under the guardianship of the petitioner, and but a few months after Carrie M. had arrived at her majority. This petitioner asks that she be paid the amount named in these two several assignments. On the hearing of the case at the circuit, the application of the petitioner was denied, and she appeals to this court.

As to the case of Hattie M., there can be no doubt as to the correctness of the conclusion reached. She was at the time of the execution of this paper under age, and under the guardianship of petitioner. No new consideration moved to her. The evidence indicates that the paper was, in effect, an iattempted gift, and the rule which prohibits guardians from profiting out of the estate of the ward applies with full force.

As to the validity of the assignment of Carrie M., the case is almost equally as’ clear. At the time the assignment was made, she was just past 31 years of age. The guardian’s account had not yet been settled. The evidence clearly indicates that, without any exact knowledge as to the amount of the estate which was coming to her, and because of importunities, not only of petitioner, but of the trustees of the estate, and as a means of satisfying the petitioner that she would care for her out of the estate, and, as Carrie M. testifies, to avoid trouble, she executed this agreement. The rule is elementary that, even after the ward attains majority and the guardian’s accounts have been settled, while the disability of infancy has been removed, that arising from the trust relation is but slightly diminished, and contracts between the guardian and ward are scrutinized with the utmost care and caution, and, if the guardian derives a benefit or the ward suffers a loss by the transaction, it will not be sustained if the court is convinced that there is lacking the element of the'utmost fairness and good faith. 15 Am. & Eng. Enc. Law (2d Ed.), p. 86. We think, within this rule, this attempted gift should not be sustained. While in no way intending to reflect upon the character or good faith of either the executor or the petitioner in this case, we think neither duly recognized the obligations resting upon them arising out of the trust relation, which in the one case still existed, and in the other had but shortly terminated, and that it is against equity to permit this attempted, gift to be perfected.

The decree of the court below will be affirmed.

Hooker, C. J., and Grant, J., concurred. Moore and Carpenter, JJ., did not sit.


text:
    SLATER v. UNITED STATES HEALTH & ACCIDENT INSURANCE CO.
    1. Correspondence — Construction.
    The construction of written correspondence between the parties to a suit is for the court.
    2. Benefit Societies — Settlement of Claim — Rescission — Waiver of Return of Consideration.
    A member of a beneficiary association made a claim for sick benefits, and an agent of the association took up the certificate, and paid the member a certain sum in settlement of all claims by reason of the illness. The member never returned such amount, but subsequently sued for further benefits on the ground that the adjustment was made by' reason of false and fraudulent statements to the eifect that defendant had the right to take up the certificate. It appeared that, after the settlement, the association wrote plaintiff that the certificate was taken up by mistake, and the same was reissued, and premiums accepted. Held, that such conduct on the part of the company did not amount to a waiver of its right to insist on a return of the amount paid as a condition precedent to the rescission of the settlement by plaintiff.
    Error to Washtenaw; Kinne, J.
    Submitted April 9, 1903.
    (Docket No. 21.)
    Decided May 29, 1903.

      Assumpsit by John B. Slater against the United States Health & Accident Insurance Company of Saginaw on a policy of insurance. From a judgment for plaintiff,, defendant brings error.
    Reversed.

      Cavanaugh & Wedemeyer and Arthur Brown, for appellant.

      Frank B. Jones and Carl T. Storm, for appellee.
   Carpenter, J.

This suit is brought to recover a stipulated indemnity upon an insurance policy. The policy was issued by the United States Benevolent Society, March 30, 1893. Defendant assumed its obligations January 29, 1901. By the provisions of this policy plaintiff was entitled to $7 per week during the time he might be ill, not to exceed 26 weeirs, and his heirs were entitled to $75 as a burial fund in the event of his death. Plaintiff’s testimony proved that he became ill June 28, 1901; that on July 20, 1901, he adjusted his claim against defendant for that illness for the sum of $45, and received a check for that amount; that he was induced to make this adjustment by the false and fraudulent statements-of defendant’s agent that defendant had a right to take up his policy of insurance; and that said policy was taken up at the time of the adjustment. When said settlement was made, plaintiff signed a receipt, describing his illness, and containing the following language:

“I hereby agree to accept the sum of $45 in full and complete settlement, compromise, satisfaction, discharge, and release of any and all claims, either of indemnity or otherwise, that I may have or hold against the United States Health & Accident Insurance Company under policy No. 7,129, or any other policy or policies which I now hold, issued by said company, by reason of the aforesaid illness, or by reason of any disability the cause of which originated prior to this date.”

Said plaintiff’s illness continued for a period of 26 weeks. He brought this suit without returning or tendering the money received by him when said adjustment was made. It is conceded that, under the decisions of this court (see Pangborn v. Insurance Co., 67 Mich. 683 [35 N. W. 814] ), this he could not do, unless defendant had waived said tender. This question of waiver was submitted to the jury, who found for the plaintiff, and the only question raised in this court is whether or not there was any evidence which justified their finding.

Plaintiff claims this waiver is proved by the following testimony: While the policy was in the possession of the defendant, it attached thereto a rider, purporting to be dated January 29, 1901, by which it agreed “to and with the holder of said policy or certificate to assume the obligations of said policy or certificate.” August 20, 1901, defendant wrote plaintiff’s attorney as follows:

“I am in receipt of your letter regarding the cancellation of John B. Slater policy, and have looked it up carefully, and find he has one of the old policies, that does not have the clause for cancellation inserted. Mr. Forsythe, the adjuster, was ignorant of the same, and had no doubt his policy was one that could be canceled. * * * But Mr. Slater lapsed out of the society August 1st, and we would not care to reinstate .him .anyway. Of course, it would be optional with us whether we reinstated him or not, and I think we have paid him about enough money now, for one member.”

August 28th it wrote:

“We would just as soon he kept his policy up. It does not make any material difference. So you may mail $2 here for August and September dues, and we will mail you policy with receipt for those two months.”

And August 31, 1901, it wrote:

“We are in receipt of your letter, with check for $2 for John B. Slater for August and September dues, and you will find inclosed herewith receipt and policy.”

And this constitutes all the evidence which it is claimed has any tendency to prove that defendant ever waived its right to have the money returned. No claim is made that the rider attached to the policy, and dated January 29, 1901, in any way changed the obligations of defendant. That simply attached to the policy formal evidence of defendant’s existing obligation. It is for the court, and not the jury, to construe the correspondence. We are unable to find in it any evidence of intent to waive the return of the $45, or to set aside the settlement theretofore made. It seems to have been the opinion of the trial court and of plaintiff’s counsel that, because the settlement and the surrender of the policy were parts of one transaction, defendant’s voluntary assent to set aside the surrender also set aside the settlement. We cannot accept this reasoning. Though the settlement and surrender were parts of one transaction, the parties could, by their agreement, separate them; and it is obvious from this correspondence that, though the defendant intended to set aside the surrender of the policy and reinstate the same, it did not intend to set aside that part of the agreement by which it adjusted its obligation to indemnify plaintiff for his then illness. In our judgment, therefore, there was no evidence from which the jury could find that defendant waived the return of the $45.

The judgment of the court below will therefore be reversed, and'a new trial granted.

The other Justices concurred.


author: Grant, J.

text:
    WILSON v. WOOLMAN.
    Drains — Construction—Validity op Proceedings — Assessment —Injunction—Estoppel.
    A landowner who, knowing that a drain is being constructed, for which he is liable to assessment, takes none of the statutory steps to determine the validity of the proceedings, cannot thereafter maintain a bill to restrain the collection of the tax on the ground that the proceedings are invalid.
    Appeal from Sanilac; Beach, J.
    Submitted April 9, 1903.
    (Docket No. 20.)
    Decided May 29, 1903.
    Bill by Charles Wilson against Hugh Woolman, drain commissioner of Sanilac county, and John Baird, treasurer of Marion township, to restrain the collection of a drain tax. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Counsel for the defendants in their brief give a succinct statement of facts, which we adopt.

      In 1892, the Indian Creek drain was established and constructed in the township of Marion, Sanilac county, following Indian Creek, a natural water-course. This drain runs through complainant’s lands described in the bill. It was established and constructed before complainant owned said lands. In' many places this drain became filled up with sediment and refuse, and in June, 1900, the defendant Hugh Woolman, county drain commissioner, received an application to clean out and extend said drain down stream from its outlet about 100 rods. Acting in pursuance of said application, the drain commissioner caused a survey of said drain and the proposed' extension thereof to be made, and thereafter ordered said Indian Creek drain to be cleaned out and extended from its outlet down stream 26.60 chains. He then procured releases of the right of way for said drain through all lands through which said extension would pass. In making the survey stakes were set 8 rods apart up stream, commencing with stake 0 at the outlet of the extension. Stake 13 of the new survey was placed 2 rods and 8 feet above stake 0 of the original drain, and the survey stakes on up stream held the same relative positions. In taking the levels along the old drain, the surveyor set the grade stakes on top of the earth excavated from the original drain. The surveyor made a new profile, showing the dimensions of the extension and the cleaning out throughout the whole length of said drain. In taking the levels for cleaning out said drain, the surveyor did not attempt to follow the dimensions of the old proceeding, .except the width of bottom.
    After procuring releases of all the right of way on the extension, the drain commissioner fixed the 25th day of September, 1900, as a day for letting of contracts, and served a notice of said letting of contracts upon complainant personally. Complainant attended at the letting of contracts, but was late in arriving there. Complainant was living on the lands described in his bill of complaint, and saw the men digging across his place at different times during perhaps a month or six weeks in the fall of 1900, and made no complaint against the proceedings until he was asked to pay the tax by the defendant John Baird, township treasurer. Complainant filed this bill on the 36th day of February, 1901, to restrain the collection of the tax. All drain taxes assessed for the construction of this drain were paid to the township treasurer except complainant’s. Proofs were taken in open court, and the bill dismissed.

      E. O. Babcock, for complainant.

      Fred A. Farr, Prosecuting Attorney, and W. H. Burgess, for defendants.
   Grant, J.

(after stating the facts). It is unnecessary to discuss the defects upon which complainant relies to defeat the payment of his taxes. The decree is right for two reasons: (1) Because the complainant knew of the proceedings as they were going on, and took none of the steps provided by statute for a speedy determination of the question of their validity. Auditor General v. Melze, 124 Mich. 285 (82 N. W. 886). (3) Complainant cannot be heard in a court of equity after the drain has been completed. He cannot stand by, see the work go on to completion, and then file a bill in equity to test the validity of the proceedings. Township of Walker v. Thomas, 123 Mich. 290 (82 N. W. 48).

The decree is affirmed, with costs.

The other Justices concurred.


text:
    TOWNSHIP OF OVID v. HAIRE.
    1. Justices op the Peace — Jurisdiction—Waiver—Appeal-General Issue.
    By pleading the general issue in the circuit court on an appeal from a justice of the peace, defendant waives any objections to the jurisdiction of the justice because of defects in the process or irregularities in adjournments.'
    2. Same — Declaration—Amendment.
    By such plea defendant also admits that there was a declaration, so as to justify the court in permitting plaintiff to amend the same.
    3. Same.
    Where a justice’s return on appeal stated merely that “plaintiff declared verbally,” without reciting the substance of the declaration, but accompanying such return was a statement by the county treasurer of uncollected personal taxes, among which was a charge against defendant, and a plea of the general issue was interposed, plaintiff was properly permitted to amend the declaration by setting up a claim to recover such taxes.
    4. Personal Taxes — Suit to Collect — Authority op TreasURER.
    •A township treasurer majr bring suit in the name of his township to recover a tax on personal property, when authorized so to do by the supervisor.
    5. Same — Evidence.
    The testimony of the treasurer that he was so authorized is competent to establish that fact.
    6. Same — Domicile—Question for Jury.
    Evidence in an action to collect a personal tax held sufficient to authorize the submission to the jury of the question of defendant’s residence in the plaintiff township.
    Error to Clinton; Stone, J.
    Submitted April 9, 1903.
    (Docket No. 13.)
    Decided May 29, 1903.

      Assumpsit by the township of Ovid against James Haire for taxes on personal property. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff sued defendant in justice’s court to recover the amount of taxes assessed against him upon personal property. Summons was duly served, and defendant appeared specially, and objected to the jurisdiction of the court upon the ground that the summons issued was not such a summons as the law required to be served upon a nonresident; defendant claiming to be a nonresident. The objection was overruled, and the case was twice adjourned. Defendant took no further part in the trial before the justice, and judgment was finally rendered against him. He took a special as well as a general appeal to the circuit court. The court overruled the special appeal, and thereupon he pleaded the general issue. Upon the trial defendant seasonably objected to any evidence under the pleadings upon the ground that the declaration did not set forth any cause of action. Thereupon plaintiff was permitted to amend its declaration, and at the same time filed a bill of particulars, showing plaintiff’s claim to be $120.86, taxes assessed against the defendant upon personal property for the year 1900. ' The case proceeded to trial, resulting in a verdict for the plaintiff.

      A. 6r. Shepard, for appellant.

      Fred B. Fverett (John C. Booling, of counsel), for appellee.
   Grant, J.

(after stating the. facts). The objections made to the jurisdiction of the justice’s court were waived by the plea of the general issue.

The return of the justice did not state the substance of the declaration; it simply states that the plaintiff declared verbally. Among the papers returned by the justice was a statement by the county treasurer of uncollected personal taxes, on which was the amount assessed against the defendant. This paper showed the claim against the defendant. Defendant relies upon those authorities holding that an amendment cannot be allowed in the circuit court which states a different cause of action than that stated in the justice’s court; citing, among other authorities, Loranger v. Davidson, 110 Mich. 605 (68 N. W. 426), and Moore v. Hansen, 75 Mich. 564 (42 N. W. 981). If defendant had interposed no plea, his objection might be good under Moore v. Hansen. If there was no declaration, there was nothing for the defendant to plead to. He evidently understood that there was a declaration, which was undoubtedly true, for the justice returned that there was one, but did not state its substance. The defendant, by his plea of the general issue, admitted that there was a declaration. This being so, the liberal rules, of amendment apply. We think there was no error in permitting the amendment.

The treasurer testified that the chairman of the town board, who was the supervisor, authorized him to bring the suit. This testimony was competent to establish such authorization. When so authorized, the treasurer may bring such suit. Township of Bangor v. Transportation Co., 112 Mich. 601 (71 N. W. 143).

The meritorious question in the case is that of defendant’s residence. He was formerly a farmer, living in the township. He was a bachelor, but kept house, his sister being his housekeeper. He testified that on the 15th day of March, 1899, he made an auction, and sold his personal property, live stock, tools, etc., also his household goods that were salable; that he had rented his farm, but reserved one room for his sister’s household goods and some of his own-things; that when he left Ovid he intended to make Detroit his home; that he had been back to Ovid •several times, but only on account of business; that when he left Ovid he had no intention of making that his home again; that, after living in Detrpit a while, he moved to Windsor, Canada. He kept bouse in neither place. He testified that there might be a little hay belonging to him upon the farm. We think his residence was, under the circumstances, a proper question for the jury. The court gave very explicit and fair instructions upon this point,, telling them that, if the defendant actually moved away, and was an inhabitant of some other place, and resided elsewhere, that would be conclusive in his favor.

We find it unnecessary to discuss any of the other quéstioris raised.

Judgment affirmed.

The other Justices concurred.


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    PRATT v. WICKHAM.
    1. Exchange of Property — Passing of Title.
    Title to the property of one of the parties to a contract of exchange may pass before he has acquired title to that for which it is exchanged.
    3. Same — Question for Jury.
    Where defendant agreed to exchange a bull owned by him for a buggy owned by plaintiff and a harness which plaintiff was to procure, and it was agreed that the buggy should be repaired and painted by plaintiff, and, with the harness, left at a certain village, where defendant was to obtain them; and, on the day of the agreement, plaintiff changed the bull to a stag, and was to get it as soon as it should recover, a finding that the title to the bull passed to plaintiff on the day of the'agreement was justified.
    3. Witnesses — Credibility—Cross-Examination.
    In replevin, it was not error to permit defendant, on cross-examination, to be asked whether he had not pleaded guilty to stealing a grindstone from another, for the purpose of affecting his credibility.
    4 Exchange of Property — Passing of Title — Instructions.
    In replevin for a bull which plaintiff was to receive on an exchange of property with defendant, the court, having charged that if it was the iutention of the parties, at the date of the agreement, that title should pass to plaintiff, then plaintiff was entitled to recover, but that, if such was not their intention, the verdict should be for defendant, further instructed that if the bull was turned over to plaintiff, who thbn and there changed him from a bull to a stag, that would be “strong evidence” of a change of title, and, if there was a change of title, plaintiff was entitled to recover. Held, that the latter instruction implied that the turning over to plaintiff was with intent to pass title, and, so construed, was not erroneous.
    Error to Leelanaw; Mayne, J.
    Submitted April 9, 1903.
    (Docket No. 14.)
    Decided May 29, 1903.
    Keplevin by William H. Pratt against Willard H. Wickham. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      W. H. Foster, for appellant.

      Archie F. Bunting, for appellee.
   Carpenter, J.

Plaintiff commenced this suit in replevin in justice’s court for a stag valued at $30. He prevailed in that court and in the circuit _ourt, to which defendant appealed. The testimony of the plaintiff tended to prove that June 12, 1901, at defendant’s farm, he and defendant agreed upon an exchange of property. The defendant agreed to exchange a bull owned by him for a buggy owned by plaintiff and a harness which plaintiff was to procure. The buggy was to be repaired and painted by plaintiff, and the harness was to be secondhand, and worth $6. The buggy and harness were to be left in the village of Empire, Leelanaw county, where defendant was to obtain them. At the time the contract of exchange was made, plaintiff changed the bull to a stag, and it was arranged that he should come and get the animal as soon as he was better. The plaintiff repaired the buggy, bought the .harness, and left them in the village of Empire, as agreed. He notified the defendant of his action, and demanded the stag, and, on defendant’s refusal to comply with his demand, brought this suit.

Defendant contended in the court below, and does here, that, under plaintiff’s testimony, the court should have-instructed the jury to render a verdict for the defendant, on the ground that the title to the stag did not pass to the plaintiff. Defendant argues that the title to the stag did not pass because the title to the buggy and harness to be transferred in-exchange did not pass. Conceding that the title to the buggy and harness never passed to defendant, it by no means follows that the title to the stag did not pass to the plaintiff. It is well settled that, in case of a sale, title may pass though the purchase price is not paid. See 1 Mechem; Sales, §§ 493-495. So, in case of exchange, title to the property of one of the contracting parties may pass before he acquires title to the property for which it is exchanged. Mitchell v. Gile, 12 N. H. 390. The testimony in this suit warranted the jury in finding that plaintiff acquired title to the stag June 12, 1901.

When the defendant was being cross-examined by plaintiff’s counsel, the following occurred:

Q. Did you ever plead guilty * * * of stealing the Empire Lumber Company’s grindstone ? (Objected to as immaterial. Overruled. Exception.)
“A. Yes, sir.”

Defendant’s counsel seriously contends that this ruling was erroneous. The testimony was clearly admissible for the purpose of affecting the credibility of defendant. Clemens v. Conrad, 19 Mich. 170; Wilbur v. Flood, 16 Mich. 40 (93 Am. Dec. 203); Dickinson v. Dustin, 21 Mich., at page 565.

In his charge to the jury, the court said:

“And in order that the title to this animal should pass from the defendant to the plaintiff, it is necessary for you to find that the parties so intended on the 12th day of June. If the partifes at that time intended that from that time the bull was to be the property of the plaintiff, then the plaintiff is entitled to recover in this action. If, on the other hand, they did not, and the minds of the parties did not meet, and it was not the intention of the parties that the title should pass and that the plaintiff should have possession of the bull after that time, then your verdict should be for the defendant, of no cause of action. If you should find that the bull was turned over by the defendant to the plaintiff, that the plaintiff then and there went on and changed him from a bull to a stag, that would be strong evidence of the fact that the minds of the parties had met at that time, and that there was a change of title; and, if there was a change of title, then the plaintiff must recover in this cause.”

Complaint is made of the last sentence, upon the ground that the court should not have instructed the jury what constituted strong evidence. In the connection in which this language was used, defendant’s rights were in no manner prejudiced. It would have been proper for the court to charge the jury that, if the defendant turned the hull over to the plaintiff with the intent to pass the title, the title did pass; and we think, in the language complained of, it is implied that the turning over by defendant to plaintiff was with intent to pass the title.

The judgment of the court below should be affirmed.

The other Justices concurred.


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    SANDERSON v. ADAMS.
    Deeds — Incapacity of Grantor — Affirmance.
    Where complainant, when about to be arrested for the murder of her husband, made an improvident conveyance of her interest in his estate to defendants, and thereafter, when out on bail, and with knowledge of all the circumstances, accepted the amount agreed to be paid her, less a liberal discount for anticipating the time of payment, she thereby affirmed the previous agreement, and could not maintain a bill to set aside the conveyance.
    Appeal from Calhoun; Winsor, J.
    Submitted April 21, 1903.
    (Docket No. 33.)
    Decided May 29, 1903.

      Bill by Mary Sanderson against Jasper Adams, Ella Adams, Gavin Ritchie, Jr., Edward Stringham, George Stringham, and Lucius Sanderson to set aside certain conveyances. From a decree dismissing the bill as to all defendants except Ritchie, complainant appeals.
    Affirmed.

      Stewart, Sabin & Hooper, for complainant.

      Mechem & Bailey and O. S. Clark, for defendants.
   Carpenter, J.

Complainant brought this suit to procure a decree setting aside certain conveyances executed by her conveying her interest in the estate of her deceased husband, Rudolphus Sanderson. One of these conveyances was dated October 15, 1898, and ran to Gavin Ritchie, Jr. The other was dated October 22, 1898, and ran to defendants George and Edward Stringham. The court below refused to set aside the conveyances, but rendered a personal decree against defendant Ritchie, compelling him to repay complainant $400 obtained by him. Complainant appeals to this court, asking the relief which was denied her in the court below.

The material facts established in this case are as follows : Rudolphus Sanderson, complainant’s husband, died September 6, 1898. He left no will. He had no children. One half of his estate was inherited by his brothers and the daughters of a deceased sister. The other half was inherited by complainant. Soon after the death of her husband, complainant learned that defendant Jasper Adams, who was the brother of her husband’s first wife, suspected her of murdering her husband, and that a criminal prosecution charging her with such mui’der was likely to be instituted. October 15, 1898, complainant was induced by the fraud of Gavin Ritchie, Jr., to make the first conveyance heretofore mentioned. Complainant received from Ritchie $100, and immediately went to Chicago, 111. Shortly thereafter said criminal proceedings were instituted. Complainant thereupon returned, and consulted hex lawyer in Marshall. On the 22d of •October, 1898, acting under the advice óf this lawyer, complainant made a second transfer of said property to the defendants Stringham. Defendant Ritchie at the same time, at complainant’s request, transferred all his interest to the Stringhams. Complainant received from the Stringhams $1,500 in cash ($600 of which she was compelled to and did pay to defendant Ritchie), and an-agreement to pay the sum of $5,000 out of the first moneys received from the estate when it was settled, provided that, if the part of the indebtedness of the estate chargeable against complainant’s share should exceed $250, the excess should be deducted from the $5,000 deferred payment. This agreement was made in the office of complainant’s attorney. Complainant was not at that time actually in custody, but an officer was in fact and to her knowledge waiting to take her in custody as soon as this arrangement was made. October 26,1898, the defendants Stringham transferred their interest in the property to defendant Jasper Adams and his brother Onyx, since deceased. The Adamses paid the Stringhams $9,000 for the one-half interest in the estate acquired by them. As a part of this consideration, they assumed the obligation of the Stringhams to complainant. On the 5th of August, 1899, while the complainant was at liberty, but on bail, she received from the Adamses the sum of $4,000 in full for the balance remaining due on the contract of sale, and executed a full release of her claims. If this settlement had not been made, complainant would hav.e been shortly thereafter entitled, under the terms of her contract, to about $4,600 (the $5,000 being reduced by the fact that the claims against complainant’s share of the estate were about $400- in excess of the $250 stipulated). While the value of the interest of complainant in her deceased husband’s estase is somewhat uncertain, we think it may be assumed that it proved to be worth about $11,000.

We agree with the trial judge that there was no conspiracy between the defendant Ritchie, the Stringhams, and the Adamses. The testimony establishes to our satisfaction that- they did not act in concert. The defendants Adams were not interested in any way in the project of Ritchie to acquire this property, nor in the purchase by defendants Stringham from complainant. We agree, too,, with the trial judge that defendants Stringham did not practice any fraud upon complainant when they obtained the conveyance of October 22, 1898. We find it unnecessary, however, to determine whether the circumstances-surrounding complainant — the fact that she was practically in custody, and was terrorized by the situation— destroyed her capacity to act. If it be assumed that her capacity was impaired to such an extent that she had a right to disaffirm the contract, she lost that right August 5, 1899, by receiving and appropriating its proceeds. On August 5, 1899, complainant was not in custody; she knew that the bargain of October 22,1898, was an unwise one; she also knew the fact — if fact it was — that that bargain was made when her state of mind deprived her of the capacity to make it; and at this time, we agree with the trial judge, she possessed full capacity to act. If she had a right at this time to disaffirm the contract, she had a right to affirm it, and when she accepted and appropriated its proceeds she made an election which for all time affirmed it. Bedier v. Reaume, 95 Mich. 518 (55 N. W. 366); Carroll v. Rice, Walk. Ch. 373; Merrill v. Wilson, 66 Mich. 232 (33 N. W. 716); Cobb v. Hatfield, 46 N. Y. 533.

Complainant’s counsel indulge in harsh criticism of defendant Adams because in the settlement of August, 1899, he exacted from complainant about $600 as a consideration for his anticipating the time of payment of the balance due her. Whether or not this was an exorbitant charge for the accommodation would depend upon many circumstances, and is a question immaterial to this decision, as in-no event would it furnish a reason for setting aside the conveyance theretofore made.

The trial judge did, however, err in determining the amount to be repaid by defendant Ritchie. Ritchie re-' ceived 1500, and not $400, as the trial judge determined, to which he had no right.

It results from these views that the decree of the court below should be so modified as to compel defendant Ritchie to pay complainant the sum of $500, instead of $400, with interest at 5 per cent, from October 22, 1898; and in all other respects it should be affirmed, with costs to the defendants Adams and Stringham.

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


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    HAYMAN v. WAKEHAM.
    1. Deeds — Mental Capacity.
    One has sufficient mental capacity to execute a valid deed if competent to understand the business in which he is engaged, to know the extent and value of his property, and how he wants to dispose of it, and to keep such facts in his mind long enough to plan and effect the conveyance without prompting or interference from others.
    2. Same — Unnatural Conveyance — Burden op Proop.
    In a suit to set aside a deed whereby the grantor, when 72 years of age, and in poor health, conveyed his property to his second wife, whom he had just married, to the exclusion of his children, the circumstances do not operate to shift the burden of proof as to mental capacity upon the defendant.
    Appeal from St. Clair; Law, J.
    Submitted April 23, 1903.
    (Docket No 47.)
    Decided May 29, 1903.
    Bill by Jennie Hayman and others against Harriet G. Wakeham to set aside certain deeds. From a decree dismissing thé bill, complainants appeal.
    Affirmed.

      George G. Moore (Atkinson & Atkinson, of counsel), for complainants.

      Lincoln Avery {Avery & Walsh, of counsel), for defendant.
   Montgomery, J.

This case presents a question of fact. We have had the benefit of elaborate briefs and full oral argument. A statement of the case and the conclusions of the circuit judge are taken from the opinion of the circuit judge:

“ The complainants in this cause are the daughters and sons and heirs at law of Richard Wakeham, deceased. The defendant is the second wife of the said Richard Wakeham, deceased, and the stepmother of complainants. Defendant married said Richard Wakeham in 189?. After the said marriage Richard Wakeham went to the defendant’s home, where he lived with his said wife until his death, which occurred on October 30, 1900.
“On January 27, 1898, and about three months after the said marriage, Richard Wakeham and the defendant, his wife, joined in a deed of certain real estate owned by him to one John E. Knapp, and the said Knapp on the same day made a deed to Richard Wakeham and the defendant, his wife, thus creating an entirety of interest in said real estate in the husband and wife. Another deed was afterwards made by Richard Wakeham direct to the defendant, conveying a part of the property described in the first deed. This bill is filed to set aside these deeds on the following grounds: First, that, at the time said deeds were made, the said Richard Wakeham was mentally incompetent ; second, that undue influence was exerted over the said Richard-Wakeham by the defendant, whereby he was induced to make said conveyances.
“ The evidence shows that Richard Wakeham was very sick in the fall and winter of 1896 and in the winter and spring of 1897. He was a man about 72 years of age at the time of his said marriage, and it is quite certain that he was never physically strong after such sickness up to the time of his death, and undoubtedly not as strong mentally after the time of said sickness as he had been in former years. The evidence of undue influence in said case is remote and inferential, and hardly rises to the dignity of legal proof.
“The rule to be applied in this case, in reference to the mental competency of Richard Wakeham, has been declared many times in our courts, and is whether, at the time he executed the deeds in question, he had 'sufficient mental capacity to understand the business in which he was engaged, to know and understand the extent and value of his property, and how he wanted to dispose of it, and to keep these facts in his mind long enough to plan and effect the conveyances in question without prompting and interference from others. Can any court say, under the testimony and facts of this case, that he did not have such mental capacity as above described ? I think not.
“ It is argued that the daughters and sons of Richard Wakeham were the natural objects of his bounty, and the fact that the property in question was conveyed by him to the defendant is in itself such an indication of mental incapacity as operates to shift the burden of evidence on the question of mental capacity to defendant, and this legally requires her to affirmatively show that Richard Wake-ham had the required mental capacity at the time of the execution of the instruments in question. The Supreme Court of this State has uniformly held the contrary doctrine. While it may be said that his blood relations were the natural objects of his bounty, his bounty is not limited by blood relationship, nor have his blood relations any natural or inherent right to his property. He may dispose of his property as he pleases, and it is not an indication of mental incapacity that he gave the defendant, his wife, the property in question, thus excluding his sons and daughters from sharing in that part of his estate.
“It appears by affirmative evidence in this case that, at the time he executed the first conveyance in question, he was not weak enough to be a mere instrument in any one’s hands. There can be no fatally undue influence without a person incapable of protecting himself, as well as a wrong-doer to be resisted. ‘ There is no evidence that either existed in this case.
“As to Michigan authorities upon the questions I have discussed I cite Latham v. Udell, 38 Mich. 238; Pierce v. Pierce, Id. 412; Spencer v. Terry's Estate, 127 Mich. 420 (86 N. W. 998).”

A careful examination of the record convinces us that this opinion fairly states the facts and the law of the case, and the decree will be affirmed, with costs of this court.

The other Justices concurred.


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    PEOPLE v. McDONALD.
    1. Burglary — Evidence—Sufficiency.
    In a prosecution for burglary, evidence reviewed, and held sufficient to sustain a finding that respondent aided and abetted in the commission of the offense .charged.
    3. Criminal Law — Evidence—Photographs.
    Where respondent, after being arrested, on being interrogated by the chief of police, denied having been in the vicinity where the offense was committed, and claimed a certain city as his residence, and, when shown a picture in a paper called “The Detective,” at first denied, but afterwards admitted, that the picture was of himself, the picture was admissible to prove the falsity of the statements made by him as to his identity.
    3. Same — Burglary—Argument of Prosecutor.
    It was not error to permit the prosecuting attorney, in a prosecution for burglary, to urge before the jury, from the testimony, that respondent was a “bad man,” and “as bright a man of his kind as was ever before a jury,” — particularly where respondent’s counsel had argued that there was no evidence that respondent was a bad man.
    4. Same — Conduct oe Accused.
    Nor was it error for the prosecutor, in commenting on respondent’s attitude after his arrest, to state that his position was that he was not bound to answer questions concerning himself, and that the position of an innocent man, when charged with crime, would be entirely different, and that he would lose no time in doing everything possible to convince the officers that he was innocent.
    5. Same — Extraneous Matters — Harmless Error.
    In a prosecution for burglary, a picture of respondent, contained in a paper, which respondent at first denied but finally admitted was his, was introduced in evidence. Thereafter the prosecuting attorney, in referring to the picture in his argument, spoke of- the contents of the paper. On objection the court ruled that it was improper to comment on any part of the paper except the photograph. Held, that, in view of the action of the trial judge, the error of the prosecutor in commenting on the paper was harmless.

      Error to Jackson; Peck, J.
    Submitted April 24, 1903.
    (Docket No. 174.)
    Decided May 29, 1903.
    Don A. McDonald was convicted of burglary, and sentenced to imprisonment in the State prison at Jackson for .seven years.
    Affirmed.

      Elmer Kirkby, for appellant.

      Forrest G. Badgley, Prosecuting Attorney, for the people.
   Montgomery, J.

Respondent was convicted of the -offense of breaking and entering an office not adjoining to or occupied with a dwelling house, in the night-time, and brings error. It was not claimed by the prosecution that the respondent was the one who actually broke into the office, but it was claimed that the respondent was present nt the block of which this office was a part, aiding and abetting in the commission of the offense.

Three points are urged for the respondent: First, that there was not sufficient evidence to connect respondent with the offense; second, that error was committed in permitting the introduction of a certain picture shown to the respondent by the chief of police; and, third, that the prosecuting attorney committed error in his summing up to the jury.

As to the first point, we cannot do better than to adopt the language of the learned circuit judge in denying a motion for a new trial. The statement is fully supported by the record, and clearly deduces just inferences from the testimony. It is as follows:

“I do not care to speak of all the evidence that had a bearing upon that question, but there are some features of it that were so impressible to my mind then, and are now, that it is perhaps proper for me to refer to them in determining this motion. So far as the evidence shows, the •defendant was a stranger in this city. This burglary was committed in an office building, where many people have offices. The defendant was about that building. So far as the evidence shows, nobody knew him. He was a stranger. He was seen many times during the day in and about that building. He was seen about upon the sidewalk in front of it, and at its front entrance, under such circumstances as would make him familiar with the building itself, and the habits, so far as he could learn them in a day, of the people doing business there. He bought cigars at the cigar-stand at the entrance in the morning. He visited this very office of the Metropolitan Insurance-Company, and got a bill changed. He was about there at different hours of the day. About ? o’clock in the evening this burglary was committed, and at a time when most of the occupants and péople in the offices would naturally be away.
“Now, the evidence was that at the very time when the complaining witness, Schneider, was being bound, gagged, and tied to his chair, McDonald sat out on the rail, looking towards this door. That occurred almost instantly after Schneider went into this office.. Now, there can’t be much mistake about such a thing as that. I presume the jury agreed, as most any reasonable persons would, that, of all the human beings on earth, McDonald, and McDonald alone, was looking out for the men who actually committed the burglary, knew that it was being committed, had seen those men go in there, knew that they were there when Mr. Schneider came in, saw Mr. Schneider go in, and sat on the rail while he was being bound, gagged, and tied to the chair. That is the evidence in this case,— that he was looking'right at the door.
“ Now, there is more than that. He was on hand there whenever any of the occupants of the building showed up. Dr. Lathrop came up with Mr. Schneider in the elevator. McDonald was not visible to the naked eye at that moment, as he would not naturally be to Mr. Schneider when in this office, and Dr. Lathrop noticed McDonald was not going out of the building. Dr. Lathrop was in his office only a moment. He got up, and picked up a letter that he had neglected to mail, and came right out for the purpose of mailing it. Then McDonald was there. At that instant, under the testimony, Schneider was being gagged, and there was no human being about those corridors on that floor, except McDonald. He was making some effort to get into the water-closet, — a place which offered a convenient view of the entrance to the Metropolitan Life Insurance Company. He didn’t want to get into the water-closet very bad, according to the testimony of Dr. Lathrop, because, as soon as the doctor called his attention to it, he says, ‘ The door is opened.’ So the doctor hurriedly passed down, while McDonald maintained his point of observation around that corridor.
“Now, if we stop to think where a man could locate himself, what he would do, how he would act, where he would he, bear in mind that he must have known that Schneider had just gone into that office, for he was the only person who was about there, keeping watch, and must have known what was going on. Dr. Lathrop did not know, and passed down the elevator; but McDonald maintained his position.
“Now, it is not an unreasonable inference that a rational mind should draw the conclusion from all this evidence that McDonald knew what was being done, and was aiding and assisting in its being done. It could not have been done without McDonald’s assistance, — without his aid. And it is not surprising that a jury should find from this evidence that McDonald was aiding, assisting, and encouraging the commission of this crime. And we must remember it was not the actual binding and gagging that McDonald was charged with; it was the aiding and assisting the actual perpetrators who bound and gagged Mr. Schneider, and had knocked the handle off the safe door. Mr. Schneider must have come on the scene just at the moment when the safe was being broken open, and something had to be done; and it is not possible that any man could sit on that rail, about 20 feet from that door,, his eyes right on it, and not know anything about it. ”

The testimony as to the picture in question was as follows : Mr. Boyle, the chief of police, testified that, after the arrest of the respondent, he interrogated him as to his residence, etc., and that the respondent denied having been in the block in question, and claimed Detroit as his residence. Later Mr. Boyle showed him a picture in a paper called “The Detective,” and asked him if that was not a picture of him (the respondent). Respondent at first denied it, but later said to the chief that he would admit that the picture was of himself. All this testimony was admitted without objection. Thereupon the picture itself was offered in evidence. We think it was admissible for the purpose of showing the falsity of statements made by the accused as to his identity.

The argument of the prosecuting attorney complained of was as follows:

“It is always a bad man that does that, and there isn’t any question about it. So we would naturally expect in a case 'of this kind, before we could ask for a conviction at the hands of a jury, that you are dealing with a bad man. And I want to say to you, gentlemen, that I believe this man is as bright a man of his kind as was ever before any jury on earth.
“Mr. Kirkby: I‘want an exception to that remark. There isn’t any evidence in the case concerning it.
The Court: I suppose Mr. Badgley is simply stating that from the circumstances and conduct. In that respect, he is entitled to speak of it.
“Mr. Badgley: He tells you that he is not obligated, under the law, when he was asked as to where he lived, and all those questions, to say a word, and I admit it. But, gentlemen of the jury, when I am arrested, charged with the commission of a burglary that I have nothing to do with, and I know that I must face a jury of 12 men unless I can explain my whereabouts, if there is any way on God’s green earth that I can satisfy the officers or anybody else that I am entirely innocent, I am going to lose no time in doing it; and so are you, and so is Mr. Kirkby, and so is every other man who is innocent.
‘ ‘ Mr. Kirkby: I take an exception to that.
“Mr. Badgley: You can take your exception.
“The Court: Go on.
“Mr. Badgley: And, gentlemen, after this man had told the chief where he lived, and what his business was, then he was shown his picture in this paper, which is known as ‘The Detective,’ and which the chief showed to him. ‘ Oh, no, Chief, that is not me,’ he said. But, gentlemen, while this man had been telling the chief where he lived and what his business was, and before he had told him that, this little paper had come to Chief Boyle’s hands, telling him who this man was and where he lived; and that paper told him that his name was not McDonald.
“Mr. Kirkby: I object to the prosecutor stating what that paper told him.
‘ ‘ The Court: The paper itself is not in evidence. The front part and face of the photograph is all there is about it, and that is all it is proper to comment on.”

It is said in the brief of the prosecuting attorney that in the argument for the respondent it was stated that there was no evidence that he was a bad man, and that the first portion of the argument above quoted was in reply to this statement. We think it was competent for the prosecutor to draw inferences from the testimony. We also think the comment made by the prosecutor upon the respondent’s attitude after his arrest was fair argument. The comment as to the paper was more doubtful, as it was not in evidence; but it was promptly checked by the circuit judge before any harm could have been done to the respondent.

The conviction is affirmed.

The other Justices concurred.


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    BROWN v. PONTIAC, OXFORD & NORTHERN RAILROAD CO.
    1. Carriers — Ik jury to Shipper — Delivery op Car — Question por Jury.
    Where a shipper of live stock agreed with the company’s agent at the point of destination that, on the arrival of the car, it should be placed at a cattle-chute to permit him to unload, and the car was so placed, and detached from the train by the brakeman, who told the shipper it was “all right,” it was a question for the jury whether the shipper, who was injured by the backing of the train against the car while he was unloading it, had a right to assume that the car had been delivered ■ to him,
    3. Same.
    Irrespective of such prior agreement, and though there was no showing of any formal action by the conductor, it was for the jury to say whether a delivery of the oar was not intended; it appearing that there was no other place at which the stock could he unloaded.
    3. Same — Contributory Negligence — Question eor Jury.
    In an action against a railroad company by a shipper for injuries received by the backing of a train against a car which he was unloading, where the testimony was conflicting as to whether he was in position to see the approaching train, the question of his contributory negligence was for the jury.
    Error to Tuscola; Beach, J.
    Submitted April 24, 1903.
    (Docket No. 53.)
    Decided May 29, 1903.
    Case by Frank Brown against the Pontiac, Oxford & ■Northern Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      D. 8. McClure and G. F. Gates, for appellant.

      John JI. Patterson, for appellee.
   Montgomery, J.

This is an action for negligent injury. The plaintiff received the injuries of which he complains while attempting to unload from a car on the defendant’s side track at Kingston two head of cattle and one calf, which, with household goods of plaintiff, constituted the shipment in said car, which had on the day in question been shipped from Leonard to Kingston. While plaintiff was so engaged in unloading the car, the defendant’s train backed up against it, was coupled to it, moved forward, and caused the injuries which- plaintiff sustained. Plaintiff’s testimony tended to show that, in the position in which he was at the time the train was backed against the car which he was unloading, it was impossible to extricate himself until the forward movement of the- car threw him to the ground and caused the injuries complained of.

The circuit judge, at the conclusion of the plaintiff’s case, directed a verdict for the defendant. We are therefore to consider the case as made by the plaintiff’s testimony, placing the most favorable construction upon the ■same, as we are bound to do. It appears by this' testimony, in addition to the circumstances q£ the injury itself, as above detailed, that on the day in question the plaintiff shipped this car load of household goods and live stock from Leonard to Kingston. During the day, and while the car was in transit, the plaintiff called upon the station agent at Kingston, and arranged with the agent that the company should place the car, on its arrival, at the point where the injury occurred; that, after the car was so placed, the plaintiff should unload the live stock, and the car should then be moved back farther south, so that he could remove from it the balance of the property. When the train reached Kingston it was backed up to the cattle-chute, — the place designated by the agent in the arrangement made in advance, — the brakeman observing from the opposite side of the car, and looking underneath it, that the door of the car was opposite the chute; and, replying to plaintiff’s inquiry as to whether it was all right, that it was, he cut off the car, left it there, and pulled the train forward. It was after this had occurred that the plaintiff attempted to unload the car.

The circuit judge’s direction proceeded upon the view that, as the control of the train was with the conductor, there had been no delivery of this car; that no one having authority had said to plaintiff, in substance or effect, “ Here is the car; we deliver it to you.” The fault in this view is that it takes no account whatever of the previous arrangement with the station agent. It was not so much a question of who had control of the train while in operation. The fact appeared to be that the car had been located at the point previously agreed upon between the plaintiff and the station agent having control of the business at that point, and we think it was a question for the jury as to whether the plaintiff, in view of this previous talk, had the right to assume that this car was so placed with the purpose of delivering it to him. If it were, it was certainly a delivery.

But, even apart from this previous arrangement, we think it would be a question for the jury as to whether the-backing of this car down to the cattle-chute, locating it there, detaching the train from it, and leaving it in position, was not intended as a delivery, in view of the fact that the car contained live stock, which it must have been known to the conductor should be unloaded at this station, and could be unloaded at no other point than the cattle-chute. The inference would not be open that this car was so located at the initiative of the brakeman, who-happened to be present at that part of the train, and who-placed it. On the contrary, the fair inference would be-that the master of the train had directed this to be done.

In the brief of defendant’s counsel the claim is made-that the plaintiff was guilty of contributory negligence; it being contended that, standing on the east side of the car, where plaintiff was located, the car could be seen coming-from the north. But the plaintiff’s testimony shows that from the point where he was standing on the gang-plank, and close up to the car door, an approaching car could not be seen. We think the question of plaintiff’s contributory negligence was, at the most, a question for the jury.

Judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    STODDARD v. GALLAGHER.
    Landlord and Tenant — Permitting Premises to Become-Vacant — Breach oe Covenant — Estoppel to Claim.
    In May, 1898, the owner of a summer hotel leased it for a term ending October 1, 1903. The lease stipulated that, if the premises should become vacant, the lessor might re-enter and relet, applying the rental on the lessee’s'obligation. It was the lessee’s practice at the end of the summer season to fasten the doors and windows, and leave his furniture; the hotel remaining unoccupied until the 1st of the ensuing June. The installments of rent were payable January 1st of each year, and in December, 1900, the lessor requested payment for the ensuing season, which was made. In April, 1901, the lessor sold the premises; the purchaser assuming the risk and expense of getting possession. Negotiations for a surrender of the lease having failed, the purchaser entered the premises; and, in ejectment by the lessee against the purchaser and the lessor, defendants relied on a breach of the covenant for continued occupancy. Held, that they were estopped to claim such breach.
    Error to Mackinac; Shepherd, J.
    Submitted May 13, 1903.
    (Docket No. 62.)
    Decided May 29, 1903.
    Ejectment by Henry S. Stoddard and Sadie E. Stoddard against Belle Gallagher and Charles J. Louisignau. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Affirmed.

      J. J. Brown (Henry Hoffman, of counsel), for appellants.

      C. J. Pailthorp, for appellees.
   Moore, J.

The plaintiffs are residents of Chicago. The defendant Louisignau was the owner of a hotel on Mackinac Island, which was opened only during the summer season. In May, 18.98, he leased the premises and the furniture therein to the' plaintiffs for five years, the term to commence June 1, 1898, and to end October, 1903, at a rental for the term of $1,250, to be paid after-the first year, — $250 January 1st each year for the following season. In the written lease was the following condition:

“And also that if the said premises, or any part thereof, shall become vacant during the said term, the said party of the first part, or his representatives, may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor, and relet the said premises as the agent of the said parties of the second part, and receive the rent thereof, applying the same first to the payment of such expenses as he may be put to in re-entering, and then to tbe payment of tbe rent due by these presents, and the balance (if any) to be paid over to the said parties of the second part, who shall remain liable for any deficiency.”

Shortly after the lease was made, the plaintiffs took possession of the premises, added furniture of their own to what was already there, paid their rent regularly, and kept the hotel as a tourists’ hotel for the seasons of 1898, 1899, and 1900. It was their practice at the end of the season, in September or early October, to fasten the doors and windows of the hotel, leaving their furniture there, and reopen the hotel about the 1st of June. In December, 1900, Mr. Louisignau wrote Mr. Stoddard, saying the rent was due, and that he needed the money to pay his taxes, and asked Mr. Stoddard to send the money by registered letter or express. December 19th Mr. Stoddard transmitted the rent by express, and Mr. Louisignau gave to the express company a written receipt for the $250 as rent for the season of 1901. This receipt was delivered to Mr. Stoddard by the express company. March 22, 1901, Mr. Louisignau wrote Mr. Stoddard, saying he had a chance to sell the premises, and saying, “ Of course I will return the $250 you paid for the coming season. ” Three days later Mr. Stoddard replied to this letter, saying plaintiffs , had spent so much money on the house during the three 'years they had it, they thought the next two years would help them out, and offered to suixender the lease, with the furniture, for $1,000 and a return of the $250 rent paid in advance. April 25,1901, Mr. Louisignau sold the premises on land contract to Mrs. Gallagher, who was and had been for some years a keeper of a boarding house not far from the premises in question. In the contract was the following provision:

“It is understood that above premises are under a lease to Henry S. Stoddard and Sadie E. Stoddard for five years from June 1, 1898, and second party herein assumes all risk and expenses in getting possession of said premises.”

On the 2d of May, 1901, Mr. Louisignau wrote Mr. Stoddard, among other things, as follows:

“The party that has bought the house is Mrs. Belle Gallagher, at the Island. The thousand dollars you ask besides the rent you can’t have, as you aint entitled to it. Mrs. Gallagher will write'you for the keys.”

About the same time Mr. Louisignau sent Mr. Stoddard a draft for $250, which was at once returned to him by Mr. Stoddard, and was retained by him. May 10, 1901, Mrs. Gallagher wrote Mr.' Stoddard a letter, stating, •among other things:

“I have purchased the Brunswick, and, finding the •doors and windows open, I took possession, as we were neither of us safe with the house in this condition. Now, I wish to make you a proposition: If you will leave the furniture you now have in the hotel for this season and next, I will board your wife and daughter from July 15th to September 5th this year and next.”

This offer was not accepted, and shortly after Mrs. Gallagher sent the furniture belonging to the plaintiffs to them, in Chicago. Soon after this the plaintiffs found Mrs. Gallagher in possession of the premises, made a demand upon her for them, and, upon her refusal to give possession, this suit was brought.

Upon the trial Mrs. Gallagher claimed she found the premises vacant, and, under the terms of the lease, had a right to take possession. She sought to introduce testimony that the house leaked and the sills were rotted, for the purpose of showing plaintiffs had abandoned the property. This testimony was at first excluded, but was after-wards admitted. It is urged here, and was urged in the court below, that plaintiffs had allowed the property to become vacant, within the terms of the lease, thereby working a forfeitui’e.

One cannot read this record without reaching the conclusion that this claim is a pretext on the part of Mrs. Gallagher to avoid the consequences of her illegal acts. The hotel was, and for years had been, a tourists’ hotel. The season for keeping it open was a short one. Though the lease was for five years, the time when it was to commenee and end shows tbe parties understood it was for five seasons. At the close of the season the windows and doors were fastened up. The defendants knew this, and one of them, at least, and probably both of them, knew the plaintiffs lived in Chicago, except when the hotel was open for guests. After the third season, with full knowledge of these facts, a request was made of Mr. Stoddard to pay the rent for the season of 1901, according to the terms of the lease. This request was honored, and a receipt sent. When the two defendants entered into negotiations, one for the sale and the other for the purchase of the property, they both had knowledge of the plaintiffs’’ interest in the property by virtue of their lease, and we think the court was entirely right in saying the defendants are estopped from saying the house was vacant and the lease forfeited.

Judgment is affirmed.

The other Justices concurred.


text:
    PEOPLE, for Use of NATIONAL SEWER-PIPE CO., v. SHARP.
    1. Principal and Surety — Failure to Secure Additional Surety.
    One who signs a bond as surety upon the understanding that it shall also be signed by another, whose name appears in the body thereof, as a co-surety, is not liable where the bond is delivered without the latter’s signature, and with a line drawn through his name therein.
    2. Same — Amendment of Plea.
    It was not error to permit a surety on a bond, on the trial of an action thereon, to amend his plea by setting up that he signed the bond on condition that another should also sign it, which condition was not complied with; plaintiff having been given the option of a continuance, and having elected to proceed ta trial.

      3. Same — Evidence—Harmless Error.
    Where a surety on a bond defends on the ground that he signed on condition that another surety be obtained, which was not done, the restriction of his cross-examination by excluding evidence of his statements that he understood that one who did sign with him was a principal is not ground for reversal.
    4. Same.
    In an action on a bond, the testimony of the sureties as to conversations with the principal at the time they signed it, to the effect that it should not be used unless also signed by a third person, is admissible, under proper pleadings, in view of the notice conveyed to the obligee by the presence of such third person’s name in the body of the bond, both as part of the res gestee, and as defining the obligation which the sureties were willing to undertake.
    Error to St. Clair; Whipple, J.
    Submitted May 14, 1903.
    (Docket No. 70.)
    Decided May 29, 1903.

      Assumpsit by the People of the State of Michigan, for the use and benefit of the National Sewer-Pipe Company, against Andrew Sharp and August Schultz, copartners as Sharp & Schultz, as principals, and Henry McMorran and Rudolph C. Wargowsky, as sureties, upon a statutory bond. Prom a judgment for defendant sureties, plaintiff brings error.
    Affirmed.

      Jame'sA. Muir, for appellant.

      George G. Moore, for appellee McMorran.

      Avery Bros. & Walsh, for appellee Wargowsky.
   Montgomery, J.

This is an action on a bond given for the protection of laborers and materialmen who should extend credit to Sharp & Schultz, contractors with the city of Ann Arbor for the construction of a sewer. The bond is in the sum of $5,000, and purports to have been executed by Sharp & Schultz as principals, and the» defendants McMorran and Wargowsky as sureties. The plea of defendant McMorran was accompanied by a notice containing the following:

‘ ‘ Defendant will further show that prior to the date of said bond, and about that date, he was requested by Rudolph C. Wargowsky to sign a bond in which the said Wargowsky and Andrew Sharp and August Schultz were principals, and this defendant and Lewis Kurtz should be sureties, and was assured that said Kurtz would be a party thereto, and his name was written in the body thereof, and'this defendant never executed, any other bond than one jointly with the said Kurtz as sureties and with the principals as aforesaid, unless he was deceived and defrauded in the execution thereof; that, after the execution by this defendant, the form of said bond was changed, and the name of said Kurtz omitted therefrom, whereby the same became void and of no binding force and effect.”

This was followed by an affidavit denying the execution of the bond for the reasons stated in the notice.

When the case was called for trial, defendant Wargowsky was permitted to amend his plea by adding the following :

. “ Defendant will further show that, prior to the time of the signing of the bond which was signed toy him, a bond was presented to him by Sharp & Schultz, the defendants above named, in which their names appeared as principals, and the names of Henry McMorran, this defendant, and Lewis Kurtz appeared as sureties, and said Sharp & Schultz represented to this defendant that one Lewis Kurtz signed said bond in addition to the said Sharp & Schultz, Henry McMorran, and this defendant, as a surety, and that this defendant would not be liable on said bond, and said bond would not be delivered and used, unless said Kurtz executed and signed the same, and relying upon these 'representations, and with the express agreement, understanding, and condition that the said Kurtz would sign said bond, and that said bond would not be delivered until said Kurtz had signed the same, said defendant Wargowsky signed the bond that he did sign, but that said bond contained the name of said Lewis Kurtz in the body thereof at the time he so signed the same; that, after the execution by this defendant of said bond mentioned, the same was altered and changed by the erasure of the name of the said Lewis Kurtz therefrom, whereby the same became void,”

—And to attach an affidavit denying the execution of the bond set forth in plaintiff’s declaration.

On the trial the issue presented to the jury as to each surety defendant was whether, at the time such surety signed the bond, the name of Lewis Kurtz appeared in the body of the bond, and whether it was so signed with the understanding that Kurtz was to also sign before delivery. The court instructed the jury that if the fact was so, and if the name of Kurtz was afterwards erased, and the bond delivered to the city authorities without his signature, the defendant sureties were not bound. This ruling was fully justified by the previous decisions of this court. Johnston v. Township of Kimball, 39 Mich. 187 (33 Am. Rep. 372); Hessell v. Johnson, 63 Mich. 623 (30 N. W. 209, 6 Am. St. Rep. 334). There was no error, therefore, unless it occurred in the proceedings on the trial, or in the refusal to grant a new trial.

It is contended that it was error to permit an amendment to the plea at the trial. When the amendment was allowed, the plaintiff was given the option of proceeding to trial or having a continuance, and elected to proceed to trial. The question of amendment was addressed, to the sound legal discretion of the trial judge, and this discretion was not abused. Wolscheid v. Thome, 76 Mich. 265, 269 (43 N. W. 12); Lester v. Thompson, 91 Mich. 245 (51 N. W. 893).

It is contended that there was no evidence to substantiate McMorran’s plea. This is mere assertion. We do not so read the record.

It is claimed that error was committed in restricting the cross-examination of McMorran by excluding testimony of his statements that he understood that Wargowsky was interested in the contract. While it is not clear that this might not properly have been admitted, it does not follow that its exclusion was damaging error.' The name of Wargowsky appeared in the body of the bond as a surety, and, as the issue was defined for trial, it was narrowed to the question whether the name of Kurtz appeared in the bond when signed by the two defendant sureties, or whether it was written in and erased after they had signed. We are unable to see how the excluded testimony would have led to a different conclusion as to this question.

It is also contended that it was incompetent for the sureties to testify as to the conversations at the time the bond was signed, to the effect that the bond was not to ,b© used unless Kurtz signed it. It is correct to say that such a statement by the principal would not have constituted a defense unless known to the public authorities whose duty it was to accept the bond, if Kurtz’s name had not appeared in the body of the bond; but, when supplemented as it was by constructive notice to the city council by the insertion of the name of Kurtz as co-surety, it was competent, not only as a part of the res gestae, but as defining the obligation which by the delivery of the incomplete instrument the sureties were willing to undertake. Hessell v. Johnson, supra.

The other questions raised do not call for extended discussion. We are convinced that no error was committed in refusing to grant a new trial, and that no prejudicial error appears in the record.

The judgment is affirmed.

The other Justices concurred.