author: Ostrander, C. J.

text:
    TRUDEAU v. BOIVIN.
    1. Compromise and Settlement — Payment op Rent — Evidence.
    The trial court did not err in refusing to decide, as a matter of law, whether rent which defendant sought to recoup had been paid by plaintiff and his deceased partner, where the evidence tended to show that defendant executed a mortgage to deceased containing a clause by which deceased was authorized to collect the rent of the premises and apply on the mortgage debt, that deceased and his partner went into possession, and that subsequently a settlement took place, whereby defendant deeded the premises to decedent for a specified consideration, greater in amount than the debt remaining due.

      3. Same — Burden of Proof — Appeal and Error.
    Although the court technically erred in charging the jury that they were to determine whether the defendant had sustained, by a fair preponderance of the evidence, that the rent was not included in the settlement, the testimony showing a compromise, tended to raise a presumption of fact that the rent was taken into consideration in the settlement, and as it was not contradicted by other evidence, the error was not prejudicial when considered with the remainder of the charge.
    Error to Houghton; Streeter, J.
    Submitted January 16, 1911.
    ( Docket No. 85.)
    Decided March 13, 1911.
    Assumpsit by George Trudeau and Charles Rambaud against Anselme Boivin on an open account. Defendant claimed a set-off which was partly allowed by the verdict. Judgment for plaintiffs. Defendant brings error.
    Affirmed.
    P. H. O’Brien, for appellant.

      Mason & O’Connor, for appellees.
   Ostrander, C. J.

Upon a former trial of this cause a judgment was recovered by plaintiffs, which was reversed by this court and a new trial ordered. 158 Mich. 585 (123 N. W. 31). Upon the second trial the demand of plaintiffs, which was an unpaid balance of an account for liquors sold to defendant, was admitted, and disputed questions arose upon the claim of defendant that plaintiffs owed him $630 for rent of a building and $10? for use of certain bar fixtures. Upon the former record we said there was no evidence from which it could be legitimately inferred that the rent had been paid, and that the amount due defendant for rent and the amount due him for the use of the bar fixtures were the only questions for the jury. Upon the last trial the question whether the rent had been paid was again submitted to the jury, and it is inferred that the jury found the rent had been paid, and that the sum due for the use of the bar fixtures had not been paid. Tbe verdict equals tbe plaintiffs’ demand, less the amount claimed by defendant for use of tbe bar fixtures. Defendant (appellant) insists that no testimony was introduced tending to prove that tbe rent bad been paid. It is contended, further, that tbe court, in tbe charge to tbe jury, erroneously placed upon defendant tbe burden of proving that tbe rent bad not been paid.

Tbe testimony given upon tbe second trial is not tbe same as that given upon tbe first trial. Tbe defendant’s demand for rent is for a period of 21 months, from May 1, 1897, to February 1, 1899. It appears that in October, 1894, defendant and bis wife gave a mortgage upon tbe property, tbe rental of which is involved, to George Trudeau for $1,952.25, containing tbe clause:

“And it is hereby expressly agreed by and between said parties that said second party shall have possession of the first floor of the building on said lot now used for saloon on May 1st, 1895, and rent the same and apply the proceeds of rent on this mortgage.”

A note accompanied tbe mortgage; tbe debt drawing interest at 8 per cent. The note and mortgage were introduced in evidence. Upon tbe back of tbe note appeared a memorandum reading:

“Due on this Oct. 23, 1895, $2,167.71. Received on within note on the settlement on January 1st, 1897, money enough to leave this balance due on this note and mortgage from Boivin to Trudeau Jan. 1st, 1897, the sum of $1,720.78.”

Under date January 27, 1899, defendant and bis wife conveyed tbe property to the mortgagee by warranty deed, containing a covenant against incumbrances, etc., excepting a certain mortgage given by first parties to George Trudeau. The consideration stated in the deed was $1,900. George Trudeau, who was father of plaintiff Trudeau, is dead. Plaintiff Rambaud was a partner with the elder Trudeau in tbe saloon business from May 1, 1897, and tbe firm occupied tbe building until January 1, 1899. The present firm (the plaintiffs), it is said, succeeded to the rights and assumed the liabilities of the old firm. Rambaud testified that he paid his half of the rent to Trudeau.

Defendant testified:

“A few months after the note was executed, I owe him $1,720.78, and then the house was rented to Trudeau and Rambaud. I told him to draw that rent, and he draw that rent to the 1st of May next, and the 1st of May next he took the house himself, and he ask me how much is it for the rent ? Does it go for the same rent ? And I says, ‘Yes,’ and he go in partner with Mr. Rambaud and that’s the last money I get for the house, and it’s a standing money for my rent. I used to take a drink; some time I used to pay, and some time I didn’t; and we never had no settlement. When we settle and I sell the house in 1900, he say, T allow you $1,900 for the house, and leave you the upstairs to live in, and pay the back taxes on it;’ and he was to pay $1,900 for the house. I says, ‘How about the rent?’ and he says, ‘We figure your rent and the house rent, and if you need that I help you to build again. The house rent go to your whisky bill,’ and we leave it that way. It wasn’t before the house burned down, it was after. * * * In January, 1897, I balanced accounts with Mr. Trudeau, and agreed that at that time I owed him $1,720.78. That $1,720.78 and the added items from then until the time I sold the building were the considerations that are named in this deed for the building. I paid the debt by deeding the building.
“Q. In the mortgage you say this:
“‘It is hereby expressly agreed by and between the parties that the said second party shall have possession of the first floor of the building on said lot now used for saloon, on May 1st, 1895, and rent the same and apply the proceeds of rent on this mortgage. * * * ’
“You made that agreement in the mortgage with Mr. Trudeau, did you not ?
“A. In the year 1894. On the 23d of January, 1894, I made that agreement with him. * * *
“Q. Now, Mr. Boivin, isn’t it a matter of fact that you had no other agreement with Mr. Trudeau or with Mr. Rambaud as to fixtures in the saloon at any other time ?
“A. No other agreement of what? When I sold the building to Trudeau, I didn’t go and make an agreement as to the rental of the fixtures or to sell them. I did say-something to them about the fixtures.
“Q. When?
“A. It was my furniture. I told him when I sold the house I had the furniture there. I never sold that. I told him I had it there, and he said, ‘We will use it.’ That was Trudeau. Aside from the counter, chairs, and the ice box, the other furniture in the house were, the tables and spittoons.
“Q. How much was all of that worth ?
“A. I don’t remember what I paid for the whole thing.
“Q. Never mind what you paid; how much was it worth ?
“A. That was worth a good. deal. I don’t remember what I paid for it, the counter and ice box and chairs and three tables. After deeding to Mr. Trudeau, I remained upstairs in that building for some time, and occupied it for a dwelling.
“Q. Paying rent for it ?
“A. I wasn’t going to pay rent and he came back and he says, ‘You ought to pay rent;’ and I says, ‘You promised that I don’t have to pay rent;’ and he says, ‘You are able; you ought to pay rent;’ and it wasn’t our agreement.
“Q. The rent was paid, even after Mr. Trudeau died ?
“A. I paid rent some of the time. I didn’t have a place to move, and I couldn’t throw my family on the street. I paid rent after he died. No one offered to put me out on the street, but he asked me for the rent, and I asked for a settlement. He owed me some money. He didn’t care about that; he want the rent and didn’t want to give me a settlement. I told him to make my settlement, and I pay the money. He turned the settlement to you to collect.
“Q. If he owed you money, how was it you paid him rent?
“A. I paid the rent. We couldn’t settle; I didn’t know how much he owed me and how much I owed him. It was unsettled business.
“Q. You paid rent after he died without being asked for it, didn’t you ?
“A. I always pay rent when he ask me, when he send the bill. No; I didn’t present a bill when Mr. Trudeau’s estate was settled. I did try to get a settlement until suit was brought here. A dozen times I asked old man Trudeau. A dozen times over.
“Q. Why didn’t he settle?
"A. Because he didn’t settle, that’s all. He talk about it and put me back and talk about it, but never come up to a settlement; and I asked George, his son, after the old man died to make up my bill and I settle, and he told me how much it was.
“Q. He made you up a bill, did he not ?
“A. He never show me it.
“Q. Didn’t he send you a copy of the bill by mail ?
“A. He told me what it was. He send me a bill for house rent.
“Q. You expected to charge the rent for the saloon building to Trudeau and Rambaud, didn’t you ? * * *
“A. When I gave this deed in January, 1899, from myself and wife to George Trudeau, Sr., I didn’t get any money at all.
“Q. Had any part of that rent from Trudeau and Ram baud been applied on your mortgage ? * * *
By the Court: Mr. Boivin, whose handwriting is on the back of that note ?
“A. I can’t tell you. It ain’t old George Trudeau.
The Court: I think you may take the answer to that question, and give Mr. Mason an exception.
Q. Now, a part of that rent?
“A. No, sir.”

No objection, based upon the fact that Trudeau, Sr., equally with the witness, had knowledge of some of the matters testified to, was interposed. We are not informed, although the jury may have been, when Trudeau, Sr., died. That fact may not be important. We assume that this suit was begun early in the year 1908. It is certified that the record contains the substance of all testimony given at the trial. There is no testimony other than is above set out tending to prove any attempt on the part of defendant to collect his alleged demand. In view of the agreement evidenced by the mortgage and the testimony that a settlement was made when defendant deeded the property to Trudeau, Sr., we think the court was not in error in refusing to instruct the jury that they must consider the rent unpaid.

In the charge the court said, in part:

“All the transactions which took place between George Trudeau, Sr., and the defendant in this case, are not in evidence and could not possibly be, on account of the fact that George Trudeau is dead, and many of the dealings were entirely between these two. But you will carefully consider all the circumstances in this case, and then determine whether the defendant has sustained, by a fair preponderance of the evidence, that the rent for those premises were not included and adjusted in the settlement at the time that the building was sold and the deed finally passed to George Trudeau.”

It is in this language that appellant finds the burden cast upon him to prove that the rent had not been paid. The testimony which has been referred to supports a presumption of fact that the mortgage matter was settled and adjusted with reference to the terms and conditions of the mortgage; in other words, that in the settlement which was made the money found to be due upon the mortgage debt was diminished, as the contract provided it should be, by the amount of the rent. If defendant had not testified, as in substance he did, that the debt for rent was not taken into account in the settlement, the jury would have been warranted in finding that the rent had been adjusted. Whether defendant’s testimony overbalanced this presumption, was a question for the jury. Upon this record and this subject, it was the only question for the jury. We must assume that it would have been answered favorably to defendant’s contention, if the jury believed the testimony of defendant. There was no other testimony tending to rebut the presumption raised by the testimony for plaintiffs. In instructing the jury to determine whether the defendant had sustained the contention that the rent was not adjusted when the building was sold and conveyed, the court was technically, but only technically, in error. In another portion of the charge the jury were told that, if they found that the rent was not paid, that the defendant never received that rent, either in credit or cash, or any other way, then they should deduct the amount admitted to be due to plaintiffs from the amount of the rent, and give defendant a judgment for the balance. In our opinion it is clear that defendant was not prejudiced by the use by the court of the language complained about, and that reversible error is not made to appear. The judgment is therefore affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v. HICKMAN.
    1. Criminal Law — Violation of Local-Option Statute — Saloons.
    Evidence that respondent had beer in bottles on premises where intoxicating liquors had been sold a year previous, and that he sold cider that had commenced to work but not shown to have been intoxicating, was insufficient to convict him of keeping a place where intoxicating liquors were sold, and of keeping such liquors for sale, in violation of the local-option law.

    2. Same — Amendment to Information.
    An information so charging may not be amended by including a charge of keeping fermented liquors for sale, and the original information was insufficient to support a conviction of the latter offense.
    Exceptions before sentence from Jackson; Parkinson, J.
    Submitted January 20, 1911.
    (Docket No. 179.)
    Decided March 13, 1911.

      Sylvester Hickman was convicted of violating the local-option law.
    Reversed, and respondent discharged.

      Elmer Kirkby, for appellant.

      Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.
    The local-option law is in force in Jackson county. Respondent was arrested, charged with violating the law, in that he kept a place where intoxicating liquors were sold, stored for sale, and furnished, he not being a druggist or pharmacist; and in that, during a period of time set out, he kept intoxicating liquors for sale at the place described. He waived examination and was held for trial at the circuit. The information which was filed contained two counts, upon the second of which the prosecuting attorney elected to try defendant. In this count it is alleged that respondent, at a place and during a period set out, did keep intoxicating liquors for sale. The trial proceeded, and testimony was introduced which tended to prove that respondent, who had been a saloon keeper before the local-option law became effective in the county, kept and sold eider at his place of business, which, to use the terms employed by a witness, “had commenced to work.” There was also introduced testimony which tended to prove that respondent’s place of business was searched by officers, who found a barrel of beer, not opened, a case of beer, sealed and not opened, both of them apparently consigned to some person other than respondent, or to himself by a name not his own, a quart bottle of beer on ice behind the counter, and a quantity of cider in bottles, and a jug of cider. Respondent conducted a restaurant, and with his family lived over his place of business. There was no testimony tending to prove that the cider was intoxicating liquor. There was no proof of other sales of liquor. The people having rested, the court was moved to direct a verdiet for respondent upon the ground that there was no testimony tending to prove that intoxicating liquors were kept for sale by respondent. The motion was overruled, the court saying:
    “ Well, it is proved this place was a saloon before the adoption of the local-option law, a bar extending the whole length of it; that cider, perhaps not sweet, was sold by the drink; and this beer was in there. I think the testimony is one of the bottles wasn’t full. This beer was. there, and it was Hickman’s place, and it was a public place of eating and drinking. I think it is for the jury to say what.it was kept there for; and also I think there is enough evidence on the question of this cider and its condition to go to the jury. I do not see it is such a question as the court can assume — as a question so uncontradicted so there could not be any two opinions about it, and require me to direct a verdict. So I overrule the motion to direct a verdict.”
    Respondent and others were then sworn and examined, and gave testimony tending to prove that respondent had not, during the period alleged in the information, sold any malt, brewed, fermented, vinous, spirituous, or intoxicating liquor, but had sold cider, described as sweet, not fermented and not intoxicating. One witness for respondent stated he purchased cider which he thought had “ started to ferment.” There was testimony tending to prove that the bottle of beer on ice was intended for use by respondent and his family. Counsel made their argu-, ments to the jury. In the course of the argument in behalf of respondent, it was contended that respondent was not charged with keeping for sale fermented liquor, and therefore ought not to be "convicted. A colloquy occurred during which the prosecuting attorney asked for leave to amend the information by writing into it the word “fermented.” Over objection, the amendment was permitted, and the jury instructed that if respondent kept fermented cider for sale he was guilty of violating the law. They were told that if the cider was sweet it was no violation of law to keep it for sale; and, further:

      “The fermentation of cider is sometimes termed ‘commenced to work.’ It isn’t a question whether it was sweet cider or hard cider, but whether it was fermented or not. It isn’t necessary that it should be intoxicating; it need not have reached that stage or degree of fermentation as to make it intoxicating. All that is necessary is that it should be fermented. So you will consider the case upon all the evidence, both as to the cider and the beer, and if the cider was fermented, then keeping it for sale is unlawful, and if the beer was intended for sale and received and kept for sale, then that was unlawful.”
    A verdict of guilty was returned, judgment was stayed, and the cause is here on exceptions before sentence. The exceptions relied upon were taken when the court refused to direct a verdict for respondent, and when amendment of the information was permitted.

       Power to prohibit the keeping of intoxicating liquor, irrespective of any intention to sell it in violation of law, see note in 26 L. R. A. (N. S.) 394.

   Ostrander, C. J.

{after stating the facts). The court erred in refusing to direct a verdict when the people had rested. There had been introduced no testimony tending to prove that respondent kept a place where intoxicating liquors were sold, stored for sale, or furnished. The court was in error in saying to the jury that one bottle of beer, partly emptied, was found there. This was conceded by counsel for the people, and the statement was corrected. The fact that beer was found on the premises, and the fact that more than a year previously respondent had kept a saloon on the same premises, is not evidence from which a jury should be permitted to find, beyond a reasonable doubt, that respondent kept the beer for sale. There is no testimony tending to prove that the cider which was sold was intoxicating liquor.

It was error, also, to permit the amendment to the information. Under the statute, evidence that the cider kept for sale was fermented liquor was sufficient without proof that it was intoxicating. People v. Adams, 95 Mich. 541 (55 N. W. 461); People v. Kinney, 124 Mich. 486 (83 N. W. 147). The amendment was not formal merely, nor made for any of the purposes mentioned in 3 Comp. Laws, § 11922. It was made for the purpose of alleging the keeping for sale of liquors not intoxicating, or which it had been found impossible to prove were intoxicating. It was made upon the theory that the information did not allege the keeping for sale of fermented liquor, not intoxicating, and would not sustain a conviction for keeping fermented (not intoxicating) liquor for sale. The theory was correct. Respondent had neither been examined, nor had he waived examination upon a charge of keeping fermented liquor for sale, a charge made for the first time in the amended information.

The conviction must be set aside, and the respondent discharged.

Bird, Hooker, Moore, and McAlvav, JJ., concurred.


author: McAlvay, J.

text:
    PEOPLE v. ALDORFER.
    1. Intoxicating Liquors — Criminal Law — Searches and Seizures — 'W arrant — Evidence.
    In a prosecution for keeping a place where intoxicating liquors were sold in violation of the local-option law, evidence of liquors, implements and furniture found by the sheriff at the respondent’s store, was admissible whether or not the proceedings taken were regular under the search and seizure act (Act No. 107, Pub. Acts 1909).
    2. Criminal Law — Trial—Conduct of Judge and Prosecutor.
    On the trial of respondent convicted of violating the local-option law, it was not prejudicial for the prosecutor to demand in open court that respondent produce a Federal revenue receipt, shown to have been in respondent’s possession and later admitted by respondent to have been procured by him.

      3. Intoxioatino Liquors — Evidence—Expert and Opinion Testimony — Chemical Analysis.
    Testimony of a chemist who analyzed liquors found in respondent’s place of business was admissible and material, although the analysis was not made under the authority of the court which issued the search warrant.
    4. Same.
    And it was not error to refuse to strike out testimony that beer was received at the local freight office for respondent, in connection with the bills of lading, with evidence that the freight agent had orders to deliver respondent’s freight to certain drivers, and with testimony of one driver that he delivered one consignment of beer to respondent.
    Exceptions before sentence from Emmet; Shepherd, J.
    Submitted January 20, 1911.
    (Docket No. 178.)
    Decided March 13, 1911.
    Levi B. Aldorfer was convicted of unlawfully keeping a place for the sale of intoxicating liquors in a county that had prohibited the liquor traffic.
    Affirmed.

      Wade B. Smith, for the people.

      Halstead & Halstead and M. F. Gfuinon, for defendant.
   McAlvay, J.

Respondent was prosecuted before the circuit court for Emmet county upon an information charging him with having—

“In the village of Harbor Springs in said county kept a place where intoxicating liquors were sold, stored for sale and furnished; he not being a druggist nor registered pharmacist, contrary to law, etc.”

The charge being set forth in due form in violation of what is known as the local-option law committed in the county of Emmet between May 1, 1909, and October 14, 1909, where said law was in force. A trial resulted in a verdict of guilty. The case is before this court upon exceptions before sentence.

The facts disclosed by the record are that respondent and one Pratt, after May 1, 1909, when the local-option law went into effect, conducted in the place charged a soft drink, cigar, and tobacco store; that the sheriff, who went to the place with a search warrant, found and took away 50 to 60 bottles of beer and several gallons of whisky in a jug; that under his direction he caused an analysis of these liquids to be made. It was found that they contained alcohol; the beer 4 per cent., and the whisky 37.9 per cent. There was testimony tending to show that intoxicating liquor, during the time charged, had been sold at this place. There was evidence tending to show that deliveries of barrels of bottled beer consigned to respondent, to his partner, Pratt, and to the firm, had been delivered at this place of business. Also a consignment to respondent under his name spelled backwards, and one of whisky to his partner under his name spelled backwards. The sheriff testified that he saw a receipt of the United States internal revenue in this place of business and gave oral testimony of its contents, that it issued to Aldorfer and Pratt from July 1, 1909, to June 30, 1910, for the sum of $25. Errors assigned will be considered in the order presented by. respondent’s brief.

Errors pertaining to the search warrant: It is insisted that the court was in error in allowing the sheriff to testify as to what he found under a search warrant which be had returned, and in refusing to dismiss the suit because it was founded upon the search and seizure act as jurisdictional, and the proceedings thereunder were not in evidence. The search and seizure provisions of the local-option law (Act No. 107, Pub. Acts 1909) were enacted for the purpose of procuring evidence in the prosecution of cases for the violation of that law, and for forfeiture of the things seized. The liquors, implements, furniture, etc., found by the officer and produced by him on a trial in the prosecution of a case for violation, together with his testimony as to when and where he found them, would be admissible evidence. As to those facts it would be immaterial whether the search and seizure proceedings were regular and valid or not. 23 Cyc. pp. 250, 251; State v. Burroughs, 72 Me. 479; Commonwealth v. Welsh, 110 Mass. 359.

It is contended that a demand in open court by the prosecutor for the production of a revenue receipt, and the remark of the court that “unless time is asked it will be presumed that the request is refused,” were prejudicial, and in violation of respondent’s right not to be compelled to be a witness against himself. Upon this question this court has already held against the contention of respondent. People v. Moore, 155 Mich., at page 114 (118 N. W. 742). The language of the court in that opinion leaves no doubt but that the demand of counsel and the remark of the court were not prejudicial to respondent. And in this case respondent later testified fully relative to this matter, giving his reasons for procuring such revenue receipt.

Proof of the chemical analysis was objected to and an exception to its introduction taken, because it was done without the authority of the court which issued the search warrant, and without authority of law. The evidence is clear that the identical liquor seized was analyzed, and the accuracy of the analysis is not questioned. The objection is not tenable. The rights to the property seized and the regularity of the seizure are not before the court. The statute provides the procedure for seizure and forfeiture, and remedies are open to respondent for redress if any wrong or injury was committed by the sheriff. This evidence was material and admissible upon this prosecution.

The prosecution undertook to show shipments and delivery of beer and whisky to this place of business conducted by respondent and his partner, Pratt, by the original shipping bills receipted by respondent’s agent, and other evidence. These bills were produced by the freight agent of the railroad company, who had orders from respondent to deliver his freight to R. L. Mosher, a dray-man, and all of the shipments were receipted for either by R. L. Mosher or his drivers. His son testified that he personally delivered two barrels which were billed as beer, and receipted for them. His father was in New Mexico when the case was tried. The son testified that his father had the delivery of respondent’s goods which came by rail. The receipts by the accredited agent, Mosher, at least tended to show a delivery to respondent, and the testimony of the drayman’s son showed an actual delivery of one consignment. This evidence was admissible for the purpose offered. 25 Cyc. pp. 249, 250, and cases cited. The court was not in error in refusing to strike out this testimony. The verdict of the jury is supported by the evidence.

We find no error in the case.

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

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


author: Hooker, J.

text:
    PEOPLE v. FISCH.
    1. Intoxicating Liquors — Publication op Resolution — Board op Supervisors — Local-Option Law.
    The designation either of every newspaper in the county or of a paper named and every other newspaper, was a sufficient designation of the paper in which to publish the resolution of the board of supervisors declaring the adoption of prohibition in the county, under Act No. 207, Pub. Acts 1889 (2 Comp. Laws, § 5412 et seq.).

      2. Same — Resolution of Supervisors — Clerk’s Duties.
    Evidence that the clerk of the board received the affidavit of publication and on May 2d spread it on the record by pasting the same in the record, and certifying the date thereon, shows a sufficient compliance with the statute requiring him to spread it on the record.
    3. Same.
    That the certificate of the clerk merely gives the date of affixing the affidavit instead of the date of filing, does not invalidate the record where it appeared that the same was not in his office on the preceding day.
    Error to Presque Isle; Emerick, J.
    Submitted January 20, 1911.
    (Docket No. 196.)
    Decided March 13, 1911.
    Fred Fisch, Sr., was convicted of violating the local-option law.
    Affirmed.

      Dafoe & Johnson, for appellant.

      Franz C. Kuhn, Attorney General, and George A. Morris, Prosecuting Attorney (Henry & Henry, of counsel), for the people.
   Hooker, J.

Defendant was convicted of violating the local-option law, and has appealed, claiming that it does not appear that such law was in force in the county.

The errors alleged and relied on appear to be that the resolution of the board as to publication was invalid, in that:

1. It omitted to name and designate a newspaper. "We understand the admitted fact to be that, as originally adopted, the resolution required “publication in every newspaper within the county.” This was amended the following day to read “in the Presque Isle News and all the other newspapers in the county.”. Either was a sufficient designation to comply with the law. See Madill v. Midland Common Council, 156 Mich. 56 (120 N. W. 355).

2,3, That the clerk failed to indorse the filing and fact of filing on the affidavit of publication on the day of its delivery to him, and that he did not spread the affidavit of publication on the records of the official proceedings of the board. The law (2 Comp. Laws, § 5425) provides:

“ Such original affidavit of publication shall be filed with the clerk of the board of supervisors and he shall spread the same on the records of the board, following the record of the adoption of the resolution of prohibition, and the said clerk shall state next on the record the date when said notice and affidavit of publication was entered for record, and shall sign the record officially.”

This is what was done: The affidavit was delivered to the clerk, and on May 2d the original affidavit was posted upon the record of the board of supervisors following the record of the adoption of the resolution of prohibition. This was done on the 2d day of May; the affidavit having been sworn to before a notary on April 30th. It is evident that this affidavit was delivered to the clerk on or before May 2d. That was a sufficient "filing with the clerk ” under the statute, which does not in express terms require him to indorse anything upon it. Moreover, an examination of the record at the hearing showed that the filing was indorsed on the affidavit, being concealed by pasting. It was then his duty to spread the same upon the records, etc. He did literally spread the original affidavit on the record by pasting it there, and this was in exact compliance with the exact terms of the statute, which requires that such original affidavit " * * * shall be filed with (not by) the clerk and he shall spread the same (i. e., the original affidavit) on the records,” etc. We do not mean to imply that a transcription of said affidavit would not have been a compliance with the law, but we hold that the course taken was valid.

4. The further contention is made that the clerk failed to comply with the requirement that—

** The said clerk shall state next on the record the date when said notice and affidavit of publication was entered for record, and shall then sign the record officially.”

What was done is shown by the entry:

The above proof of publication was affixed to this page on the 2d day of May, A. D. 1910.”

We must necessarily infer from this record that the affidavit was entered on or before May 2d, and after April 30th. Respondent’s brief states that it was not in the clerk’s office on May 1st. It certainly appears that it was not received after May 2d, and we are of the opinion that this was sufficient. It was filed May 2d. See Madill v. Midland Common Council, 156 Mich. 61, 62 (120 N. W. 355); Bauer v. Township Board of Denmark, 157 Mich. 395 (122 N. W. 121); Wightman v. Village of Tecumseh, 157 Mich. 330 (122 N. W. 122); People v. Hamilton, 143 Mich. 1 (106 N. W. 275).

It is unnecessary to refer to other questions raised, as they are covered by what has been said.

We find no error, and the judgment is affirmed.

Ostrander, O. J., and Bird, Moore, and McAlvay, JJ., concurred.


text:
    McCAIN v. SMITH.
    Work and Labor — Implied Contracts — Partnership Associations, Limited.
    Testimony tending to show that defendant was secretary and treasurer of a limited partnership association, that plaintiffs testator was private secretary of defendant’s father and occupied the same offices with defendant, that he was sometimes employed by other persons as accountant, and kept books of the association of which defendant was secretary, that testator sent defendant a statement of account for his services, and in reply defendant did not admit or deny the acoount unqualifiedly but asked that it be corrected and returned to him, requires the submission of the defendant’s liability to the jury.
    Error to Wayne; Murphy, J.
    Submitted January 18, 1911.
    (Docket No. 103.)
    Decided March 13, 1911.
    Assumpsit by Frederick E. McCain as executor of the estate of Edmund S. McCain, deceased, for services rendered. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Frederick F. McCain, in pro. per.

      Hobson & George (Julian H. Harris, of counsel), for appellee.
   Hooker, J.

The plaintiff brought this action to recover against the defendant for the services of his testator in keeping certain books of a partnership association, limited, of which the defendant was secretary and treasurer, and has appealed from a judgment entered upon a directed verdict for the defendant.

No testimony was offered for the defendant, and the important question is whether plaintiff made a prima facie case.

Plaintiff testified that the Smiths, one S. L. Smith and his son, Angus, the defendant, occupied a suite of rooms in an office building in Detroit; that his (plaintiff’s) father was the private secretary of S. L. Smith. There is no direct testimony regarding the nature of the private business carried on by S. L. Smith, if any. Plaintiff did testify that he was a large stockholder in the Walton Salt Company. There is no testimony tending to show what the testator’s duties as private secretary were. It does appear that he worked as Smith’s private secretary at these offices, and that during the period covered by plaintiff’s claim he was at times employed on “outside work for outside people.” Some letters written by defendant to plaintiff’s testator appear to relate to the salt association and its business, and to affairs of a lumber business or account. No one testified to the terms of the contract of hiring of the private secretary, or what his duties were. Nothing is shown as to the management of the Walton Salt Association, or who its officers were, except as plaintiff testified that defendant acted as secretary and treasurer. There is no testimony that any one did or did not request the testator to keep the salt corhpany’s books. There is testimony that he did keep books of the business, and that in 1906 plaintiff wrote and his father (the testator) signed a letter to Angus Smith, then living at Lansing, inclosing an account for these services. He produced a letter written by defendant as follows:

(Letter head of Olds Motor Works, Detroit, Mich., U. S. A., crossed out and Lansing, Mich., U. S. A., placed underneath.)
“1/8/06.
“Mr. E. S. McCain,
“719 Hammond Bldg.,
“Detroit, Mich.
Dear Sir:
“ I have your esteemed favor under date of Jan. 5th. I will be pleased to give this account my ‘ early attention ’ the first time I see you, but in the meantime return same to you for correction, as I note you have left off charges for drawing your breath and other active services, which should, of course, receive remuneration. Kindly correct bill and return to me at your convenience.
“Yours very truly,
“Angus Smith.”

He did not produce the inclosure returned. Later plaintiff sent defendant the following letter and account:

(Letter head of the Standard Accident Insurance Co.)
“August 26, 1908.
“Mr. Angus Smith,
“7th Floor Hammond Bldg.,
“ City.
“Dear Sir:
“I beg leave to call your attention to old account for expert services furnished by my father, as per invoice inclosed. As this account has stood for some time and has received no attention, I wish to emphasize the fact that the matter has not been dropped, but will be pushed until some satisfactory settlement has been made.
“ Yours very truly,
“F. E. McCain.”
August 1, 1908.
Mr. Angus Smith, to E. S. McCain, Dr.
1906.
Feb. 1. To care of books belonging to Walton Salt Association, Ltd., from February 1st, 1906, five years at $50 per month. $3,000 00
1905.
July 31. By cash on account................ 21 00
$2,979 00

There was nothing to affirmatively show that it was not the duty of testator as private secretary to do this bookkeeping for S. L. Smith, or that Angus Smith was a stockholder in the salt association, or received any compensation for acting as secretary and treasurer, or that testator was not hired by the board of managers to perform the services for that company, by a contract strictly complying with the law. 2 Comp. Laws, § 6083. It does not appear affirmatively that he was or was not paid for such services, unless it is to be deduced' from the correspondence, and the fact that plaintiff once went into the office and saw his father with a trial balance' from these books and a five-dollar bill in his hand. Perhaps it may be claimed that the following letter should also be mentioned in this connection:

(Letter head of Harbor Point Club House.)
“Harbor Springs, Mich., 8/29/02.
Dear Mr. McCain: I enclose you herewith check $50.00 (fifty) for cigarettes & other necessaries of life.
“Hastily.
“Yours truly,
“Angus Smith.
“ Let me know if many bill collectors are looking for Salt Co. Sec’y & Treas.”

But for the letter of January 8, 1906, and the account, we should be constrained to say that a prima facie case was not made out. But the letter and inclosure, and the answer from Angus Smith, are some evidence that testator at the time claimed a right to compensation from Angus Smith. This was of itself no evidence tending to prove a contract; but had the answer admitted the validity of the claim, the correspondence would have been sufficient to warrant a judgment for plaintiff. The answer did not unqualifiedly admit the validity of the claim, or any part of it, and were it not for the last line, we should affirm the judgment; but, as it is, we think the cause should have been submitted to the jury.

The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Moore, and McAlvay, JJ., concurred.


text:
    WOODMANSEE v. ANN ARBOR BRICK CO.
    1. Receivers — Corporations — Injunctions — Stockholders’ Suit.
    In a suit by stockholders and directors of a corporation against other directors who are in control of the corporate business, and who are alleged to be mismanaging the same, dissipating its assets, and planning and attempting to defraud complainants, the order of the circuit court at a preliminary hearing, appointing a receiver and depriving the corporation of its right to manage and dispose of the business and assets, after the coming in of an answer denying the averments of fraud, insolvency, and concealment, is not sustainable.
    2. Same — Interlocutory Orders.
    It is error to deprive a corporation of possession, title, and management of its property by an injunction and appointment of a receiver, on a preliminary hearing upon affidavits.
    Appeal from Washtenaw; Kinne, J.
    Submitted January 18, 1911.
    (Docket No. 111.)
    Decided March 13, 1911.
    Stockholders’ suit by Nathan Woodmansee and Austin F. Smith, against the Ann Arbor Brick Company, Horace G. Smith, Charles L. Smith, and George F. Smith. From an order appointing a receiver, defendants appeal.
    Reversed.

      A. J. Sawyer & Son, for complainants.

      Moore & Moore (M. J. Oavanaugh and George Burke, of counsel), for defendants.
    Two of five stockholders ( all of whom are also directors) of defendant corporation filed their bill of complaint against the corporation and the other stockholders, praying for the appointment of a receiver of corporate property, to wind up the affairs of the corporation, for an accounting by defendant stockholders, and for an injunction restraining defendants from selling or disposing of property belonging to the corporation. An order for an injunction was made upon the filing of the bill, which was September 1, 1910. The answer of defendants was filed September 12, 1910. Motion to dissolve the injunction was entered on the same day and noticed for hearing on September 16, 1910.
    The court, on September 14,1910, without notice to defendants, made an order appointing complainant Nathan Woodmansee receiver, temporarily, of defendant corporation, and further ordered that defendants show cause on September 26th why a “receiver ad litem ” should not be appointed. A further order, reciting that it was made September 29th, bearing at the end, with the signature of the circuit judge, the words “Dated this 1st day of October,” and filed October 3, 1910, appoints said Nathan Woodmansee receiver of all the property of defendant corporation with all powers usually belonging to receivers and some powers specifically stated. It directs defendants to turn over and transfer to the receiver all of the corporate assets. It recites that it was made after a hearing upon the order to show cause. It also continues the injunction in force. From this order defendants have appealed. The corporation was organized on or about March 25, 1907, with a capital of $8,000, represented by 80 shares of stock, of which Horace G. Smith subscribed for 30 shares, Nathan Woodmansee for 8 shares, and Austin F. Smith for 2 shares.
    The matters charged in the bill, upon which and upon the answer thereto complainants rely to support the action of the court, are, in substance:
    (1) That complainants, who now own 11 shares of stock, paid therefor in cash, while defendant Horace G. Smith, who now owns 27 shares, and has transferred stock to the other defendants, paid for his stock in personal property, mentioned in the articles of association and valued therein at $3,000.

      (2) That since the organization of the company the defendants have assumed management and control of the business.
    (3) They have endeavored to suppress all knowledge and information about the business with intent to defraud complainants.
    (4) They have not made and filed annual reports with the secretary of State, nor made reports to the stockholders.
    (5) Complainant Nathan Woodmansee has frequently applied to Horace G. Smith, president of the corporation, for information concerning the business, and has received no information except that the business was about paying expenses.
    (6) The same person applied to the said president for a report of the condition and business of the corporation and could get none.
    (7) To deprive complainants of means of information, defendants have abandoned the Ann Arbor office of the company and removed all books and papers pertaining to the business to Detroit.
    (8) No meeting of stockholders has been called by the president, or held, since the first meeting.
    (9) Complainants believe the corporation to be insolvent, defendants admit an indebtedness of f1,700 or thereabouts, due to various persons for labor, and there are believed to be other debts.
    (10) Defendants have abandoned the plant and ceased for a year or more to operate the same, and the tools, etc., are going to decay and are being carried away and destroyed for want of care and protection.
    (11) When operations ceased, there was on hand a large amount of brick ready for market and a consider - able amount in accounts and bills receivable.
    (12) Defendants are collecting these accounts, selling, mortgaging, and disposing of the brick and machinery and tools, etc., with a view of defrauding complainants and the creditors of the corporation.
    (13) Two of defendants are trying to dispose of the plant, representing to intending purchasers that their reason is that they live in Detroit and cannot attend to the business in Ann Arbor.
    Certain exhibits are attached to the bill, purporting to show who are creditors of the corporation so far as complainants can ascertain the facts, and the value of the assets of the corporation. Complainants in their schedule value the corporate plant and brick on hand at the sum of $2,040.
    The defendants, by their sworn answer, deny the allegations of misconduct on their part, deny insolvency, deny that there are any labor debts owing by the corporation, and deny that any attempts have been made to sell the corporate property excepting the brick. They admit the keeping of the books and papers in Detroit, assigning as a reason that defendant corporation has no office in Ann Arbor except at the brickyard. They assert that annual •reports have been duly made and filed and deny that complainants have been denied access to books and papers and denied information concerning the business of the. corporation. They admit that no brick were manufactured in the summers of 1909 and 1910. At the hearing, complainants presented their own affidavits in support of the bill and in denial of certain averments in the answer, which affidavits seek to enlarge, to some extent, the scope of the bill by showing that the personal property mentioned in the articles of association was overvalued. Two affidavits fix the values of the tools and machinery of the corporation at about $800.
   Ostrander, C. J.

(after stating the facts). Whether the bill states a case for equitable cognizance is a question not presented on this appeal. That the answer does not confess, and does deny, the charges of fraud and mismanagement and insolvency, is clear. The effect of the order is not limited to preserving the assets of the corporation until final decree. The effect is to dispossess the corporation and to deprive it of all title to, and management of, the corporate property. This court has so often declared that such an order, made upon a preliminary hearing, cannot be sustained, that we shall only refer to some of the decisions. McCombs v. Merryhew, 40 Mich. 721, and cases cited in the opinion; Arnold v. Bright, 41 Mich. 207 (2 N. W. 16); Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479 (7 N. W. 65); Smith v. Walker, 57 Mich. 456 (22 N. W. 267, 24 N. W. 830, 26 N. W. 783); Hall v. Waywe Circuit Judge, 111 Mich. 395 (69 N. W. 643); Goldman v. Manistee Circuit Judge, 155 Mich. 47 (118 N. W. 600). We are referred to no authority to the contrary.

The order appealed from is reversed and set aside, with costs of this appeal to appellants, and the record remanded to the circuit court.

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


author: Moore, J.

text:
    McCARTY v. CALEDONIA COAL CO.
    Joint Stock Companies — Partnership Associations — Work, Labor and Services.
    Under a by-law of a partnership association providing that its members should be bound by the articles of association, bylaws and its rules and regulations, a stockholder who performed work for the association, and had received no pay therefor, was not barred from maintaining an action after two years, notwithstanding the adoption of a resolution by the stockholders deferring payment for work, the money to be used in developing the corporate property.
    Error to Saginaw; Gage, J‘.
    Submitted January 19, 1911.
    (Docket No. 122.)
    Decided March 13, 1911.
    Assumpsit in justice’s court by Joseph McCarty against the Caledonia Coal Company, Limited, for work, labor, and services. From a judgment for plaintiff, defendant appealed to the circuit court. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Snow & Snow, for appellant.

      Miles J. Purcell, for appellee.
   Moore, J.

From a directed verdict in favor of the plaintiff this case is brought here by writ of error. The defendant is a partnership association organized under Act No. 191 of the Public Acts of 1877 (2 Comp. Laws, § 6079), entitled “An act authorizing the formation of partnership associations in which the capital subscribed shall alone be responsible for the debts of the association, except under certain circumstances,” as amended by Act No. 244 of the Public Acts of 1903. The plaintiff became a member of and stockholder in the defendant association January 2, 1907, and he claims to have sold this stock February 26, 1910. It has never been transferred on the books of the company. Plaintiff commenced work for defendant about the 1st of June, 1907, at $2.60 a day. Plaintiff quit work May 15, 1908. This suit was commenced in February, or March, 1910, to recover a balance for the unpaid wages which plaintiff claims amounted with interest to the sum of $118.40, and it is this sum for which the verdict was directed.

In section 6080, 2 Comp. Laws, is the following:

“Thatnothing herein contained shall be construed to exempt the members of such partnership association from individual liability for all labor performed for the association.”

In regard to any other debts, the provision of the act is:

“The members of any such partnership association shall not be liable under any judgment, decree or order which shall be obtained against such association, or for any debt or engagement of such company, further or otherwise than is hereinafter provided, that is to say; if any execution or process in the nature of execution, either at law or in equity, shall have been issued against the property or effects of the company, and if there cannot be found sufficient thereof whereon to levy or enforce such execution or other process, then such execution or other process may be issued against any of the members to the extent of the portions of their subscriptions respectively in the capital of the association not then paid up.”

There is no claim that plaintiff had not fully paid for his stock. Article 3, § 3, of the by-laws of the defendant company provides that:

“Any person who has subscribed and paid for one or more shares of stock shall be deemed a member of this association and bound by the articles of association and by-laws and such other rules and regulations as may be from time to time adopted.”

It is claimed by defendant that on the 27th day of May, 1907, a resolution was passed at a meeting held by the stockholders providing for the using of money in the development of the plant instead of distributing it among the men and paying 6 per cent, interest on the money which was held up. This is the testimony of one of the witnesses. Another witness testified:

“ I moved a resolution that the money due the men be used in propagating the business, and that the men receive 6 per cent, interest, and it was carried unanimously.”

The resolution is not found on the records of the association. Defendant admits plaintiff has done the work claimed by him and has not been paid for it, but claims that by virtue of the by-law and the resolutions above quoted it has a complete defense to this cause of action.

The argument is, we quote from the brief of counsel:

“ At the conclusion of the proofs in the cause, defendant moved the court to direct a verdict in its favor, for the reason that the plaintiff is and has been, during his entire connection with the defendant, a stockholder in and member of the defendant company, and, as such stockholder, he is bound by the rules and regulations which the company is permitted from time to time to make, with reference to the management and conduct of its business; that the stockholders of the company, by unanimous action, had made provision that the money on hand to be paid to the members of the company for their work and labor was to be used by the company in the payment of its debts and the carrying on of its business; that the plaintiff, being a member and stockholder of the company, was bound by that action, and that having full knowledge of the action, acquiesced in it and continued with the company some nine or ten months, permitting his pay to be held up, and that he is still a member of the company and is still bound by such action.”

It may be conceded that a stockholder of a corporation of this character is bound “ by such other rules and regulations as may from time to time be adopted ” by the corporation if they are reasonable, but it would be a novel application of this doctrine to hold that a debtor, because a stockholder, could not maintain a suit .for wages earned nearly two years before the suit was commenced because the corporation had resolved to apply its funds some other way. Our attention has not been called to any authority sustaining such a contention.

Judgment is affirmed.

Ostrander, O. J., and Bird, Hooker, and McAlvay, JJ., concurred.


author: Ostrander, J. Ostrander, O. J.

text:
    RIVERS v. BAY CITY TRACTION & ELECTRIC CO.
    1. Master and Servant — Evidbnoe—Competency.
    Where plaintiff’s intestate was killed in a collision between the car of- which he was motorman and a train at a railway crossing, at which the brakes of the car failed to operate properly, and it was claimed that he followed a custom rendered necessary by the position and length of a board platform beside the track, in attempting to stop his car, although forbidden by a general rule of the employer, less than 30 feet from the rails, so that his conductor could alight on the walk, evidence was admissible to show that if he had stopped the car 30 feet from the crossing, the rear vestibule of the car would have stood beyond the platform.
    2. Samé — Opinion Evidence — Equipment.
    Testimony of an experienced motorman was competent that a brake of the kind with which deceased was supplied to stop his car, would have a tendency to cause slipping of the wheels.
    3. Same — Previous Trouble.
    In connection with evidence that at the time of the accident deceased was operating his car in the usual manner and that he tried to check it at the usual place, but the brakes failed to operate efficiently, testimony was competent to show that the brake had given trouble, two weeks previously and the cause was due to the construction of the brake.
    4. Same — Expert and Opinion Evidence — Witnesses—Conclusion.
    The opinion of the conductor who assisted in running the car at the time deceased was killed, that it would ordinarily be safe to apply the brake 150 feet away from the track, was admissible on the question of contributory negligence.
    5. Same — Assumed Risk.
    An employé does not assume the risk attending the breach of a statutory duty by his employer, although he may be guilty of contributory negligence which will bar his recovery for the negligence.

      6. Same — Brakes.

      Held that the defendant failed to perform its duty to equip its oars with electric or air brakes as required by Act No. 439, Local Aots 1901, and that the question whether this failure contributed to the death of intestate was a question of fact.
    7. Trial — Argument or Counsel.
    A judgment will not be reversed for alleged improper argument of counsel for plaintiff which the court corrected upon the objection of defendant’s attorney, and which was not shown to have prejudiced defendant’s rights.
    8. Same — Charge to Jury — Master and Servant.
    Instructions to the jury as to the motorman’s duty to obey defendant’s rules and to use due care, and as to the proximate cause of the accident, held, to have been as favorable as defendant could require.
    9. Same — Negligence.
    Omission to charge the jury that it was deoedent’s duty to stop the car before going on the track, whatever the length of the board platform might have been, and that the defendant was not negligent in maintaining the walk in the manner it adopted, was not reversible error, in the absence of requests so to instruct the jury.
    10. Damages — Present Worth — New Trial.
    A proper rule for determining the present worth of plaintiff’s damages was that the damagés should not exceed a sum which, put at five per cent, simple interest for the period determined as the expectancy of decedent, would amount to the damages which they might find plaintiff entitled to; when the charge was illustrated by an example based upon the sum of $1,000, divided by 1.05 for one year, 1.10 for two years, 1.15 for three years, etc.
    ' Error to Bay; Collins, J.
    Submitted October 6, 1910.
    (Docket No. 8.)
    Decided November 11, 1910.
    Rehearing denied May 8, 1911.
    Case by Maude E. Rivers, administratrix of the estate of Henry N. Rivers, deceased, against the Bay City Traction & Electric Company for the negligent killing of her husband. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Weadock & Duffy (Harry A. La Berge and Don B. Sharpe, of counsel), for appellant.

      De Vere Hall, for appellee.

       As to servant’s assumption of master’s breach of statutory duty, see notes in 6 L. R. A. (N. S.) 981; 19 L. R. A. (N. S.) 646 ; 22 L. R. A. (N. S.) 634.

   Ostrander, J.

Plaintiff’s intestate, a motorman employed by the defendant, whose line intersects the roadbed and track of the Detroit & Mackinac Railroad Company at a point between Bay City and Wenona Beach, was killed January 28, 1907, when the car in his charge (No. 14) was struck by an engine of said railroad company which was at the time pulling a passenger train. The defendant’s car approaching the intersection aforesaid immediately ahead of and in view of the said passenger train, which was also in view of the motorman, was not stopped until the end of the car was upon the track of the steam road. The allegation of the duties of the defendant in the premises is:

“ (1) To equip said car No. 14 with an electric air brake of the then latest and most approved kind in common use on electric cars, as would effectually control the speed of such car, or such kind as may have been approved by the common council or any board or commission of electric control of said city of Bay City.
“ (2) To provide its said car No. 14 with safe and proper brakes and brake equipments.
“ (8) Having provided said car No. 14 with safe and proper brakes and brake equipments, to keep and maintain such brakes and brake equipments in a reasonably safe and proper condition of repair.
“(4) To provide and maintain suitable means for the inspection of said car No. .14 and its brakes and brake equipments.
(5) To keep and maintain said car No. 14 together with the brakes and brake equipments thereon in a reasonably safe and proper condition after notice of defective, insufficient, and improper conditions of same.
“ (6) To build, construct, and maintain its said platforms at the intersection of its said line with the rails of said railroad track of sufficient length that when stopped with its rear at the extreme ends of such platforms the front of said car No. 14 would not be in a position dangerously near the said rails and the engines, cars, and trains of cars passing thereon.”

A breach of each of said alleged duties is averred. The cars of defendant are operated by electric power. Act No. 439, Local Acts 1901, entitled “An act to regulate the operation of electric cars within the county of Bay,” makes it the duty of defendant to equip all double-track cars with an electric or air brake of the latest and most approved kind in common use on electric cars, or with a kind approved by the common council of the city of Bay City, in which defendant was operating. It is stated in the brief for appellee that as enrolled this statute is as above stated, although as printed it requires an electric air brake to be employed. This statute in terms makes a corporation which does not comply with it liable for all damages sustained by any person by reason of such neglect or refusal. See Fortin v. Electric Co., 154 Mich. 316 (117 N. W. 741). It is apparently conceded, though we are not referred to the record for evidence of the fact, that the common council of Bay City declared by resolution that cars should be equipped with brakes as provided by law. Car No. 14 was a double-truck car, 45 feet long, equipped with a hand brake of approved pattern, but with no electric or air brake. There was no derailing switch or other device for the protection of cars at the intersection in question here; and a rule of the defendant company required the motorman to bring his car to a full stop 30 feet from the railroad tracks, and not to proceed until the conductor had gone ahead, and, having looked in both directions on the steam road, signaled the motorman to proceed. The ground was somewhat low, and defendant had provided a board walk at the side of its track 50 feet long, which at its nearest point approached to within 17 feet of the nearest rail of the steam road. About 40 rods east of the crossing, and on defendant’s line, is a switch at which car No. 14 was stopped upon the occasion in question.

It is the theory of the defendant that there was no proof of any negligence on its part which caused or contributed to the injury. It is the theory of the plaintiff that for some reason the brakes on this car refused to perform their office, by reason of which the plaintff’s intestate was unable to prevent the running of the car into a place of danger. A motion to direct a verdict at the close of the plaintiff’s case, and one to direct a verdict at the close of the testimony, were both refused. The cause was submitted to the jury and a substantial verdict was returned for the plaintiff, and upon the verdict a judgment for the plaintiff was entered. Defendant moved for a new trial, and that was refused. Error is assigned upon rulings admitting and rejecting testimony, upon the refusals of the court to direct a verdict for the defendant, upon exceptions taken to the arguments of plaintiff’s counsel to the jury, upon refusals to give defendant’s requests to charge, upon portions of the charge given, and upon the refusal to grant a new trial, and because the court did not give sufficient reasons for such refusal.

Admission and Rejection of Testimony. A witness for plaintiff was permitted, over objection, to testify to the length of the board walk which had been referred to and the distance of the farthest end of it from the steam road tracks, and that it was used by the conductor in walking from the rear end of the car to make his required observation on the steam road tracks. Among other questions was the following:

“ When the front end was 30 feet from the crossing, where would the rear end of the car be with reference to this sidewalk ? ”

The answer was:

“ The vestibule — the back vestibule — would be beyond the walk.
“Q. Was there any way for the conductor to get out onto this walk in the winter time except through one of the two vestibules ? ”

In connection with this testimony, counsel for the plaintiff offered in evidence, and read to the jury, the rule which required all motormen to bring cars to a full stop 30 feet from the railroad track, and not to proceed, etc. The purpose of this testimony is apparent. Taken in connection with other testimony introduced for the plaintiff, it tended to prove that if the conductor used the rear vestibule of the car, and could not step from it upon this walk, he would] step into or very near a ditch which ran along near the ends of the ties; that it was customary for conductors to use the rear platform for the purpose of alighting, and that it was customary to stop cars at this crossing in such a position that the conductor could alight upon this walk. The necessary implication, and undoubtedly the conclusion which the jury drew, was that plaintiff’s intestate was not, in fact, guilty of a disobedience of the defendant’s rules in bringing his car at this crossing nearer than 30 feet to the steam road; that the bringing of the car nearer than 30 feet to the crossing was invited by the length of the walk defendant had constructed and the use which was made of it; and that it was not negligence on the part of the plaintiff’s intestate to bring his car to a position where the rear platform of the car would be opposite the plank walk. Following such a custom, the car would approach to within 21 or 22 feet, or a less distance, of the steam road tracks. It affords a reason for the conduct of plaintiff’s intestate in not attempting to bring his car to a stop at a point farther away from the place of danger. As affecting the question of the plaintiff’s contributory negligence, we think the testimony was admissible. The testimony tends to prove that he followed the usual practice, that he shut off the power at the usual distance from the crossing and applied the brakes, and that, while he might have sooner shut off the power and sooner have applied the brakes and thus have stopped the car in a place of safety, he was doing what had been repeatedly and what was usually done in stopping the car at this point. There was the further consideration that, assuming the testimony on the part of the plaintiff to be true, the defendant must have had notice that cars were habitually operated as this testimony indicates they were operated.

A witness for plaintiff was asked, “ What is the danger in a car of that character that required so many winds ” of the brake chain “in its use, from your experience?” and answered: “Well, as near as I can judge, it would have a tendency to slide the rear wheels.” The objection was that the question called for a conclusion. The witness was apparently an experienced motorman, had run car No. 14 at different times, during which he had had occasion to employ the brake, and he had testified without objection to the condition of the car on January 27th from 9:18 a. m. until after 12 o’clock noon, during which time he had it in his charge. He had reported the car out of order with respect to the brakes; and while it is true that the undisputed testimony shows that the car was inspected and repaired during the night of January 27 th, and that plaintiff’s intestate tried it the next morning when he took it out, and stated that the brakes were working all right, we think it was not reversible error to permit the witness to state the effect upon stopping the car of a brake such as the car was equipped with.

Plaintiff also was permitted, over objection, to introduce testimony tending to show the condition of brakes on this car two weeks before plaintiff’s intestate was injured, during the course of a week before his injury, including the manner in which the car operated with the brakes as they then were. He was also permitted to show what happened in the use of a hand brake by which the chain attached to the brake handle is wrapped about the handle or standard if the last wrap should slip off. The evident purpose of this testimony was to show that car No. 14, equipped as it was, had at different times given trouble because of the inefficiency of the brakes, and to show why the hand brake was inefficient under certain conditions and at uncertain times. This testimony must, like some of that already referred to, be considered in connection with that of the conductor who was on the car of the plaintiff’s intestate on the morning of the accident. He testified that the power was shut off at the usual distance from the crossing, that the brake was applied, and that the car checked, and that so far as he observed the motorman was doing what he ought to do and what was usually done to bring the car to a stop in a place of safety. Indeed, he had stepped from the platform of the car upon the step of the car for the purpose of performing his duty when he discovered that the car was in a place of danger. It was the theory of the defendant that, while the brake upon this car was not the statutory brake, it was nevertheless a good brake; that, if it had been used by plaintiff’s intestate in a reasonable manner, the car would have been brought to a proper stop. The testimony tended directly to prove one or more of the averments of negligence in the declaration. The same witness, the conductor, was asked:

Q. Coming to shutting off of the power, I understood you to say he shut off his power about 150 feet away from the railroad intersection.
“A. Yes, sir; that is my knowledge.
“Q. Was that the usual way of doing at that place ?
“A. Well, that differs a little that way. If he came in on good time and has lots of time he has shut off farther back, and set his brakes up a little and let his car die down, where if he has a little time, he will run up closer to whatever he wants to stop, and then shut off and figure to stop quicker.
“Q. What I mean, 150 feet away from the track, would that be a conservative and reasonable distance to shut off the power ?
“Mr. Duffy: He has already described that; depends on circumstances.
“The Court: He may answer.”

Defendant excepted, and that exception is the basis for the eighteenth assignment of error. The answer of the witness was: “I think that-is far enough back to be safe at any time.” It is said in argument that the question called for a conclusion of the witness. Undoubtedly it called for an opinion based upon his experience and his knowledge of the movement of the car upon the particular occasion. It is said that it was the duty of the plaintiff's intestate to apply his brakes in sufficient time to stop his car at the proper point. Undoubtedly that is true, but the question involved is whether, under all the circumstances, he attempted properly to perform his duty. We think none of the errors based on the admission and rejection of testimony have merit.

The errors assigned upon the rulings of the court refusing to direct a verdict for the defendant, each of them, necessarily raise the question whether the court can properly determine as matter of law, first, that there was no testimony showing the defendant to have been negligent as charged; or, second, that as a matter of law the plaintiff’s intestate was guilty of negligence contributing to his death. These propositions are argued at length, and we think no useful purpose would be served by discussing them in this opinion. It is settled law in this State that an employé does not assume the risk attending the breach of a statutory duty by his employer, although he may nevertheless be guilty of conduct contributing to his own injury, and that if the breach of the statutory duty by the employer causes or proximately contributes to the injury complained of, and there is no contributory negligence on the part of the employé, he may recover his damages.. It is apparent that the defendant failed to perform the statutory duty to equip its cars with brakes. Whether this failure contributed to the failure to stop the particular car at the particular time, in a place of safety, is, upon this record, a question of fact, one most intimately associated with the other question of fact, namely, whether plaintiff’s intestate acted without negligence. We are of opinion that neither of these questions can be answered by saying, what is undoubtedly true, that plaintiff’s intestate might have stopped the car in a place of safety. On the contrary, both questions must be answered with reference to the manner in which the defendant’s road was operated, its cars run, the experience of its employes, and the duty of those employés to act up to or with reference to such experience. There are few accidents of this nature that are not preventable, provided some one acts in season, if the sole object and purpose of action is to prevent the accident. But affairs are not conducted according to any such rule. It is insensible to say that, because plaintiff’s intestate might have stopped his car 100 feet or 80 feet from the railroad crossing by the use of the brake with which the car was equipped, it was negligence on his part to run the car closer than that to the railroad crossing. It is equally insensible to say that this affords reason for the conclusion that the failure to equip the cars in the statute way did not cause or contribute to the catastrophe.

We think there is no occasion to set out the argument of counsel for plaintiff which is complained about. Whatever correction was required, the court made in his statement to the jury addressed directly to counsel’s exceptions to the argument. We are not convinced that defendant was in any way prejudiced.

A number of the assignments of error based upon refusals to charge as requested involve the points raised upon the motions to direct a verdict, which need not be further considered. We have said already all that is necessary to be said with reference to the point presented by defendant’s sixteenth request to charge, which was:

“If you find that motorman Rivers could, with the brake upon the car, have stopped his car a distance 30 feet away from the railroad crossing, and did not do so, then he was guilty of contributory negligence and cannot recover.”

Upon this subject the court said to the jury:

“ If the brake on such car at the time of the injuries to and death of Mr. Rivers was incompetent and defective as claimed by plaintiff, and he knew that fact, then it was his duty to have cheeked and stopped such car at such distance before reaching the intersection of said lines that he could have avoided the possibility of a collision between such train and said car, and, if he failed to do so, plaintiff cannot recover. On the other hand, if such brake was so incompetent and defective and he did not know that fact, and it had not come to his attention in any way prior to the time of such collision, then he might assume that such brake was in its ordinary condition, and that said car could be stopped within such reasonable time, and at such place as a reasonable operation of it, with its brake in ordinary condition, would enable him, and in such event, as matter of law, he would not be guilty of contributory negligence, notwithstanding the train and car were so brought into collision. Certain rules of defendant governing the handling and operation of such car have been offered in evidence, and I charge you that it was the duty of Mr. Rivers to have observed such rules, and, if he knowingly or carelessly failed to do so, plaintiff cannot recover; but if he observed such rules and the collision was brought about entirely by reason of the failure of. defendant to equip such a car with said electric or air brake, or by reason of the incompetent and defective condition of the brake on such car, unknown to him until the time of the collision, then it cannot be said as matter of law that an unavoidable violation thereof, resulting in the collision, would preclude plaintiff from a recovery. The fact that the car in question did not have air brakes makes no difference in this case, unless the accident was the direct result óf the braking power or braking facilities. If from the evidence you find that motorman Rivers could with the brake upon the car have brought his car to a stop before crossing the railroad track in question at the time and place in question, then plaintiff cannot recover, and your verdict must be for defendant. The mere fact that motorman Rivers was killed cannot be considered by you as negligence. Before the plaintiff can recover in any event, it is necessary for her to establish proofs of these separate and distinct facts, namely, that the plaintiff’s decedent himself at the time of the happening of the accident was in the exercise of due care, and acting in obedience to the rules of the company, as construed by the company, and in compliance with the laws of the State, and without fault upon his part; (2) that the negligence alleged on the part of the defendant was the direct cause of the decedent’s death, and it is necessary for the jury to find these two propositions by a preponderance of the evidence in the case, and, unless you find the existence of these two propositions by the preponderance of the evidence, your verdict will be for the defendant. Having heard all of the testimony in this case, if you are unable to determine by a preponderance of the evidence that the plaintiff is entirely free from negligence contributing to the accident, then your verdict must be for the defendant. If you find that the accident occurred by reason of an error in judgment upon the part of the motorman as to the distance that it would take to stop his car on the morning in question, or as to the condition of the rails as to being slippery or otherwise, or an error of judgment in any other particular on the part of the motorman, then your verdict shquld be for the defendant. If you find that the collision was the result of an unexplainable accident, plaintiff cannot recover, and your verdict should be for the defendant.”

Defendant was entitled to no more favorable instructions. We are impressed that the court might very properly have said to the jury that it was the duty of plaintiff’s decedent to stop the car before going upon the crossing ( % Comp. Laws, § 6464 ) whatever the length of the sidewalk alongside of defendant’s track may have been, and, further, that the maintenance of the particular walk was not negligent conduct of the defendant, for which plaintiff could recover. But no such requests were preferred. The requests for instructions which referred to these matters contained much more which was objectionable and which the court could not properly have given. For example, the length of the planking was not immaterial in the case, as the request suggests, and, while the length of the platform did not excuse violation by the motorman of a statute duty, it may have excused an effort to bring the car alongside the platform, instead of stopping it farther away from the crossing. In view of the requests and of the entire charge to the jury, we are not inclined to reverse the case for the failure to instruct as herein suggested.

Except as has been stated, there is no ground for criticising the charge of the court. ,

Besides the points already referred to, the argument that it was error to refuse a new trial is based upon the alleged failure of the court to state a proper rule for computing the present worth of the expected annual contributions of decedent to his family, which it is claimed resulted in an excessive verdict, and the failure of the court to give sufficient reasons for denying a new trial. As to the last proposition, we are of opinion that the court ought not to have granted a new trial for any reason, and therefore the matter becomes immaterial.

Upon the subject of the amount of damages plaintiff was entitled to recover, the charge very carefully laid down rules in harmony with the decisions of this court, including the one that:

“By the present worth of a sum of money payable in the future, I mean such a sum as put at simple interest presently would amount to the desired sum at the end of such period of time. As an illustration: The present worth of $1,000 payable one year from date is found by dividing $1,000 by 1.05; -if payable in two years by dividing $1,000 by 1.10; if payable in three years by dividing $1,000 by 1.15; and so on, covering the entire period of time under consideration.”

We find no reversible error, and the judgment of the court below is affirmed.

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

ON MOTION EOR REHEARING.

Ostrander, O. J.

We should content ourselves by refusing the rehearing asked for by appellant without giving reasons therefor but for the fact that counsel for appellant, and counsel in other causes in which the point is involved, insist that the rule for ascertaining the present worth of contributions to be made from time to time, during a course of years, stated by the trial judge and approved by this court, is not the proper rule. It is said that when the result of the application of the rule is a sum of money in hand which will produce, if placed at interest at the legal rate, a yearly return equal to or greater than the amount of the estimated annual contribution, it is manifest that an incorrect result has been reached. As stated by the appellant:

“The judgment rendered would pay plaintiff more in interest than the amount of the contribution from her husband if living. She, if entitled to anything, is entitled to the amount of his contributions during the time the jury finds that he would have lived. The judgment as rendered gives her an income in perpetuity which is in excess of his contributions.”

Counsel have presented a computation, which appears to be mathematically correct, showing that a principal sum of $5,566.40, placed at interest at 5 per cent, per annum, will yield sufficient to pay $330 annually for 38 years, at the end of which time the principal sum will be exhausted. It appears to be conceded that the jury estimated the annual contribution lost to plaintiff as equal to $330 and the decedent’s expectancy of life as 38 years. The verdict returned was for $6,919.96. That this sum is the present worth of $330 for 38 years, if the computation follows the rule laid down by the court, cannot be doubted. We shall not restate the various arguments which have been made. The total of the contributions which in the case presented is lost to plaintiff is $12,540. It is convenience, and convenience only, which considers the contributions as annual. They would not have been made annually, but daily, and weekly. It is convenience, and convenience only, and an effort to ascertain and apply a rule which can be conveniently applied to the facts and result in substantial right, which considers the division of the total annual contribution for the first year by $1.05. The rule considers $1 in hand as worth $1.05 at the end of a year and, conversely, that $1.05 payable in one year may be presently paid with $1. The rule is simple, and, if it is the true rule for one year, is the true rule for any number of years. With variations depending upon the, interest rate, and upon whether simple or compound interest may be received, it is, so far as we are informed, the rule in common use for determining the sum of money required to secure a given annuity for any number of years, and the present worth of a sum payable in the future. Plaintiff, it is supposed, has lost by the conduct of defendant $12,540, which would have been paid to her from time to time during a period of 88 years. If defendant were now to assume to make the contributions, year by year, it would cost it $12,540 in the end; no less, no more. To presently compensate her for this loss, the present value of these contributions is to be estimated. This is the problem which is, in fact, presented. It is idle to argue, in support of a rule for such estimation, that it is such sum as, if presently placed at interest at 5 per cent, per annum, will yield her annually an amount equal to the estimated annual contribution and also exhaust the principal at the end of the period. Such a rule cannot in fact be applied to produce such a result. There are too many contingencies, in fact, the risk and cost of which neither plaintiff nor the fund should be charged with. By the rule adopted, and which we approve, plaintiff has discounted her demand, allowing defendant interest upon each installment at the rate of 5 per cent, per annum for the period which is anticipated. Whatever the result, it is, in our opinion, the correct result.

Bird, Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    ANCIENT ORDER OF GLEANERS v. BURY.
    Insurance — Change of Beneficiary — Mutual Associations — Fraternal Beneficiary Societies.
    Under by-laws of a beneficiary insurance association, providing for the payment of a fee of 25 cents and the approval of the supreme secretary as precedent to a change of beneficiary, the insured did not effect a valid change by directing the local secretary in writing to mate a change of beneficiary without paying the fee, when the directions were not mailed to the supreme secretary until the following day, and the insured died during the interval.
    Appeal from Wayne; Rohnert, J.
    Submitted January 17, 1911.
    (Docket No. 100.)
    Decided March 13, 1911.
    Bill of interpleader by the Ancient Order of Gleaners against Byron C. Bury, Caroline Bury, Willard Leroy Bury, and Clellan B. Bury, to determine defendants’ interests in an insurance policy. From a judgment for Byron C. Bury, codefendants, Caroline Bury and others, appeal.
    Affirmed.

      Harris 8. Whitney, for appellant Caroline Bury and others.

      Gore & Harvey, for appellee Byron C. Bury.
   Moore, J.

The questions involved in this.case are so fully stated in the opinion filed by the circuit judge that we quote freely therefrom:

“ In this case deceased held a benefit certificate in complainant order. The beneficiary named therein was a son, Byron Bury. The deceased on January 11, 1909, summoned the secretary of the local order of the complainant to his bedside for the purpose of designating a change of beneficiaries in the certificate. He was at that time sick in bed and in a very bad condition. He then executed a direction to change the beneficiary, turned it over to the local secretary, and died at 5:30 o’clock on the morning of the 12th of January. The direction for the change of beneficiary was mailed by the local secretary to the supreme secretary in the middle of the forenoon of January 12th, after the deceased had died. The direction for the change of beneficiary is in words and figures following :
‘“The $1,000.00 insurance of Clellen B. Bury’s in the Ancient Order of Gleaners, that is now payable to Byron C. Bury, is to be changed, and to be payable to the wife and children of O. B. Bury. $250.00 to his wife, Caroline Bury. $250.00 to his son, Byron Bury. $250.00 to his son Willard Bury. $250.00 to an unborn child.’
“A bill of interpleader was filed by the complainant, in that Byron Bury claimed the entire amount of the benefit, and the persons named in the above writing claimed participation in the benefit, as therein indicated. A decree of interpleader was entered. Issue was framed between the defendants, testimony taken, disclosing the above facts, and also disclosing the fact that Clellan B. Bury had not paid the transfer fee of 25 cents as required by the bylaws of the order. Undoubtedly under certain circumstances a member of the order may change the beneficiaries in his certificate in a manner other than prescribed by the by-laws of the order. First, if the certificate is out of his control, and therefore cannot be surrendered, he may make a testamentary disposition, or may indicate the transfer without a surrender of the certificate. So, also, where a fraud has been committed upon a member, may he express an intention which will be given force and effect in equity. So, also, where he has done each and everything that the by-laws of the order require that he shall do to effect a transfer, will the court give effect to his expressed intention, if by reason of untimely death the transfer shall not have been actually made in his lifetime. In this case, the facts show that the member did everything except the payment of the fee when death cut him off; death intervening even before the local secretary could transmit the written designation to the grand secretary by which the transfer was to be made. The payment of the transfer fee is a condition precedent under the by-laws before a member could compel the new certificate to be issued. A court of equity will give effect in cases arising from an attempt to change beneficiary to the expressed intent of the deceased, where such expression exists in his having done everything that the by-laws require him to do. * * * The question to be considered by the court is: Has deceased done everything that the by-laws required him to do before he is entitled as a matter of right under the by-laws to the issuance of a new certificate, and a new designation of beneficiaries ? Admittedly he has not, in that he has not paid the necessary transfer fee. While the payment of this transfer fee may be waived by the order, of which he is a member, by the issuance of a new certificate, it is not claimed in this case that there is any such waiver, in that no new certificate had been issued. The purpose of the by-law is to afford protection to the order in the payment of the benefit to avoid complications and litigation, and it is as binding upon the member as it is upon the order itself. While the by-law in this case apparently permits a discretion on the part of the grand secretary, it cannot be claimed that the grand secretary can exercise this discretion to the prejudice of a member. If a member has failed to comply with the by-laws, could he compel the grand secretary to issue a new certificate ? In this case if the member had lived and had done no more than he did do, he was not in a position to compel the issuance of a new certificate. Not being in a position to compel an issuance of a certificate, can he be said to have fully expressed the intention in manner as required by the by-laws ? I think it cannot be said that he has. In order to compel the issuance, he would have to do something more than he did do. * * * To extend the rule to give effect to his apparent intention would result in limitless litigation, and the very thing sought to be avoided by the by-law. In a word, the by-law provides how he may fully express his intention. If he has done everything that the by-law requires to express the intention, a court of equity will carry it out, but it cannot interfere unless his intention has been fully expressed. That has not been done in this case. The fund is awarded to the first beneficiary.”

The claim of the appealing defendants is indicated by the following from the brief of counsel:

“The existence of the right to share in the benefits of the order and to direct who should receive the fund in case of the death of a member was a right vested in the member as soon as he became entitled thereto. * * * Mr. Child did all he could in making the change, and it should have been allowed and done by the order. Equity will consider that done which ought to have been done. Grand Lodge A. O. U. W. v. Child, 70 Mich. 172 (38 N. W. 5).”
“When the insured has done all within his power to effectuate substitution, equity may grant relief in proper cases. Supreme Conclave, Royal Adelphia v. Cappella (C. C.), 41 Fed. 1.”
“ The change will, so far as possible, give effect to the intentions of the parties, and will consider an attempted change of beneficiaries complete without undue regard for technicalities. Luhrs v. Luhrs, 123 N. Y. 367 (25 N. E. 388, 9 L. R. A. 534, 20 Am. St. Rep. 754).”
“ The change of appointment may be sustained without the issuance of a new certificate of insurance. Bishop v. Grand Lodge E. O. of M. A., 112 N. Y. 627 (20 N. E. 562). Richardson Insurance, note 1, p. 80.”

Many other authorities are cited along the same line, but these cases do not meet the situation here. Would it be claimed that, though decedent fully orally expressed his intention to change his beneficiary, because he was prevented by his death from putting his intention in writing, while some one was attempting to procure pen, ink, and paper, this would be a sufficient expression of his intention to work a change of beneficiaries ? The certificate of insurance provides that the provisions of the constitution of the complainant are part of it. Article 21 reads:

“ Sec. 2. No certificate can be transferred by a member to any person other than provided in article 1 (c), and no transfer of a certificate will be binding on the order unless consent thereto is given by the supreme secretary. In case a member desires to change the beneficiary named in his or her certificate, he or she shall make a written request therefor and deliver same, with the certificate fee of twenty-five cents, to the secretary of his or her arhor, who will forward the same to the supreme secretary, who will thereupon, if found to be made payable as herein-before provided, issue a new certificate bearing the same number as the one surrendered.”

The record discloses that the consent of the supreme secretary was never given to the transfer, nor was the certificate fee of 25 cents delivered to the secretary of the local arbor, and no reason appears in the record why it was not done, nor was any certificate fee of 25 cents forwarded to the supreme secretary. The following has been stated as the law:

“ When a mutual benefit society has, under the powers and within the limits of its charter, provided in its by-laws a particular method of changing a beneficiary, or has set forth in its certificate a way by which the change may be made, no change of beneficiary may be made in any other mode or manner. The reason for this rule is not difficult to discover. . It is based upon the familiar maxim that the expression of one thing excludes other and different things. When a society frames a set of rules providing for the distribution of a fund, and for the rights of beneficiaries and members, it must be assumed that it excludes every other mode and manner. Any other conclusion would lead to the most interminable confusion in the law applicable to the distribution of insurance money, and fritter away, in the expenses of uncertain litigation, funds created for the benefit of widows, orphans, and heirs. But there is still another reason. It cannot be said that a beneficiary named in a certificate has no rights therein because he has no vested rights. The beneficiary has a right to the proceeds of the certificate of insurance, subject to the right of the member to change the beneficiary according to the terms of the by-laws and regulations of the society, which are a part of the contract of insurance; and the right of the beneficiary to have this contract carried out in the manner provided for is as binding upon the member as his right to change the beneficiary is binding upon the beneficiary and the society.” Niblack on Insurance, pp. 415, 416.

The case of Fink v. Fink, 171 N. Y. 616 (64 N. E. 506), would seem to be quite in point. We quote from the opinion :

“ The change of the beneficiary is an important matter, for it transfers the right to ¿receive the death benefit, amounting in this case to $1,000, from one person to another. The right of the member to make the change is absolute and the beneficiary can neither prevent it by objecting, nor promote it by consenting. Obviously such a transaction requires some formalities for the protection of the company, the member, and the beneficiary. The formalities required by the association before us, through its by-laws, were very simple, but unless they were substantially complied with, the change could not be made. Mere intention to make a change is not enough, for the. acts prescribed to carry the intention into effect are forms imposed upon the execution of a power, and they must be observed or the change cannot be effected. As a condition precedent to effectuate the change, the member was required to ask the association for a new certificate and to pay it the fee exacted by the by-laws. The association could not make the change unless he requested it, and even then, as it stipulated in its contract with him, ' only on the payment of twenty-five cents.’ While it could have waived payment during his life, it did not do so and it could waive, nothing after his death, for by that event the rights of the beneficiary became fixed and unalterable.”

It is unfortunate that Mr. Bury did'not enter upon his undertaking earlier, but we cannot make a different contract for him and the complainant than the one which they made for themselves.

The decree is affirmed, with costs.

Ostrander, C. J., and Bird, Hooker, and McAlvay, JJ., concurred.