author: Grant, C. J.

text:
    PHILLIPS v. UNITED STATES BENEVOLENT SOCIETY.
    1. Trial — Statements of Counsel — Opening to Jury.
    It is not error for plaintiff’s counsel to state, in liis opening address to the jury, that he will be unable to produce a, certain material witness, and to give the reason therefor.
    2. Same — Offer of Incompetent Testimony.
    Counsel should not offer, in the presence of the jury, testimony which he knows is incompetent.
    8. Mutual Benefit Societies —Denial of Liability — Proofs of Loss — Limitations—Waiver.
    A mutual benefit society which, on being notified of a claim for accident benefits, at once denies all liability, thereby waives proofs of loss, and a provision of the membership certificate forbidding suit until three months after such proofs are furnished.
    4. Same — Defenses — Correspondence between Parties —Admissibility.
    In an action on a benefit certificate, where defendant denies that plaintiff sustained the accidental injuries claimed by him, it is error to place before the jury a letter written to the company by plaintiff’s attorneys, stating that a certain physician, not called as a witness, diagnosed the plaintiff’s illness as due to accident, even though portions of the correspondence are admissible for other purposes.
    5. Evidence — Instrument beyond Jurisdiction — Parol Proof— Deposition.
    Parol evidence as to the contents of a written instrument which has been neither lost nor destroyed is inadmissible, though the instrument itself is outside of the jurisdiction of the court, where proof of its contents can be obtained by deposition.
    6. Mutual Benefit Societies — Notice of Claim — Mistaken Diagnosis.
    Where the holder of a benefit certificate, which provided that the company should be notified within five days, with full particulars, in all cases of accident or sickness, fell ill, and notified the company, in accordance with the diagnosis of the attending physician, that he was disabled from neuralgia, against which, under the circumstances of the case, there was no indemnity, and it subsequently developed, upon diagnoses by other physicians, that the original diagnosis was incorrect, and that the illness was due to accidental injuries, and the company was notified within five days after such fact was ascertained, — the notice was sufficient, since the member could not be deprived of benefits, in the absence of a definite provision to that effect, by reason of the mistake of his physician.
    7. Witnesses — •Physicians—Privilege—'Waiver.
    A notice to defendant to produce a letter written to him by plaintiff’s physician does not justify the admission of privileged communications between plaintiff and his physician over his objection.
    8. Trial — Instructions—Verdict—Costs.
    In an action of assumpsit against a mutual benefit society to recover accident benefits, it is error for the court to call the jury’s attention to the fact that a judgment for plaintiff for less than $100 will entitle defendant to costs.
    Error to Shiawassee; Smith, J.
    Submitted January 5, 1899.
    Decided May 9, 1899.

      Assumpsit by Richard Phillips against the United States Benevolent Society of Saginaw on a policy of accident insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Defendant is a mutual benefit association, organized under the laws of this State, insuring its members against disability from' sickness or accident, and from death occasioned by accident. October 23, 1896, plaintiff presented an application for membership. Among the questions required to be answered by this application, and here material, was this:
    “Are you now insured in any other company paying sick or accident benefits ? If so, give name and amount carried in each.

      “Answer: No.”
    By the terms of this certificate, there was no liability for disability arising from sickness or disease unless it began after 90 days’ continuous membership. In all cases of accident or sickness, immediate notice was required to be given in writing, addressed to the secretary, with full, particulars thereof. “Failure to give such notice within five days from the happening of such accident or beginning of illness renders the claim invalid, and it cannot be recognized or paid.”
    Early in December, 1896, plaintiff served a notice in writing upon the defendant, stating that, “at 11 minutes past 11 o’clock a. m., on the 5th day of December, 1896, I was totally disabled from doing any work by neuralgia.” This notice was not dated, but was promptly served, as defendant wrote December 10, 1896, acknowledging its receipt, and notifying him that he could not recover any sick benefits before January 24, 1897, because he would not have been a member 90 days until that date. This notice-was given upon a diagnosis of the case by plaintiff’s physician, Dr. Hume. Subsequently another physician, Dr. Cameron, was called in, and plaintiff was taken to the Homeopathic Hospital at the University, and an examination was made by Drs. Cameron and Le Seure. They appear to have pronounced the trouble to be the result of an injury which plaintiff claimed to have received in the car shops of the Toledo & Ann Arbor Railroad Company at Owosso. Thereupon, on January 29, 1897, Dr. Cameron sent to the defendant a written notice, stating that plaintiff “had been suffering'for several weeks from an injury sustained in the car shops, which at that time was reported by his physician as sciatica, and treated as such without success. Dr. Osborne, the health officer, and I, examined Mr. Phillips, and failed to find any trace of rheumatism. Whatever information you require covering this case will be freely furnished.”
    By the terms of the certificate of membership, there was no liability for rheumatism. Plaintiff had not been a member 90 days on the 5th day of December; consequently there was no liability for disease. On February 26, 1897, plaintiff furnished proofs of loss, and commenced this suit April 20th following. Early in February plaintiff’s wife wrote a letter to the defendant in regard to plaintiff’s claim, which is not found in the printed record. To this letter defendant replied February 12th, in which it denied liability by stating that the defendant had had plaintiff examined by three prominent physicians, and it would have to stand by their decision, closing by saying: “We do not think that Mr. Phillips is entitled to any indemnity.” Plaintiff had employed Watson & Chapman, attorneys, on January 29th. On the 15th of February these attorneys wrote to the defendant in regard to this claim, but this letter is not found in the printed record. To this the defendant, on February 22d, made the following reply:
    “ In reply to yours of the 15th, would say that, as there has been no proof filled out in the Richard Phillips case, in order that we may know what he claims, we think, perhaps, there had better be. Of course, there is no use in sending a sick proof, because there would be no way by which he can recover any sick benefits; so, with the distinct understanding that we do not concede any liability whatever, or waive any of the provisions of our certificate or by-laws, or any other rights, we inclose an accident proof to be filled out by Mr. Phillips and his physician in full. Forward same to this office, and we will look it over, and advise you further.”
    Other correspondence followed in regard to the claim, but, failing to agree, suit was launched. Plaintiff recovered verdict and judgment.

      A. L. Chandler (John A. McKay, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Grant, C. J.

(after stating the facts). 1. In his opening statement to the jury, counsel for plaintiff said: “I am not going to produce Dr. Le Seure, because we do not feel able to produce him.” We see no objection to this statement. It was competent for the plaintiff to show that he could not produce a material witness, and to show the reason therefor.

Upon the trial plaintiff’s counsel stated to the court, in the presence of the jury: ‘ ‘ Something has been said about getting Dr. Le Seure here. I have his diagnosis, which I will offer in evidence, if my brothers don’t object to it.” Of course, the presumption is ■ that this diagnosis was favorable to plaintiff’s claim; else it would not have been offered. It was clearly incompetent, and his counsel so admitted. The offer should not have been made in the presence of the jury. The jury might readily di*aw an inference of its contents. Counsel should not offer testimony in the presence of the jury which they know is incompetent. The purpose of such offers is apparent. Scripps v. Reilly, 38 Mich. 14.

2. It is urged that the suit was prematurely brought, because it was brought before the expiration of three months after filing proofs of loss. The complete reply to this is that the defendant promptly denied all liability. By this conduct the defendant waived proofs of loss and' all limitations as to time. These requirements preliminary to the right to bring suit do not apply to cases where the defendant at once denies all liability. Norwich, etc., Transp. Co. v. Insurance Co., 6 Blatchf. 241; Manhattan Ins. Co. v. Stein, 5 Bush, 652; Francis v. Insurance Co., 6 Cow. 404.

3. A large number of letters were written by the secretary of the company to the attorneys for plaintiff, and by them to the secretary, after the letter of the company denying liability, and before the bringing of suit, in regard to this claim. This correspondence was had with a settlement in view, and with a distinct statement in the letters of both parties that it should not waive any defenses which the defendant bad. In one of these letters, dated March 31, 1897, written by plaintiff’s attorneys, the diagnosis of • Dr. Le Seure is stated as follows:

“Mr. Phillips was presented to the class in the hospital, and a careful examination made of his condition. A compensating curvature of the spine exists; pelvis tips about an inch. The diagnosis, in my judgment, is a rupture of a tendon of one of the muscles of the hip.”

This damaging testimony was placed before the jury for their consideration without any opportunity for cross-examination. Some' of these letters might be admissible as evidence of a waiver of the preliminary proceedings to suit, under Burnham v. Casualty Co., 117 Mich. 143, if all such- proceedings, as above shown, had not already been waived by the denial of all liability. But, even if they were admissible for this purpose, testimony of this character cannot be placed before the jury by such statements in a letter.

4. Defendant offered • to show by parol that plaintiff, after the above injury, had applied for membership in another fraternal organization, in which application he stated he had never been sick. This was excluded, under objection. Counsel seek to defend its admissibility upon the ground that the written application was out of the jurisdiction of the court, and in the hands of the chief Secretary of that organization, in Toronto, Canada. The written document had neither been lost nor destroyed, and the law provides a way for securing such testimony by deposition. The testimony was, therefore, properly excluded.

5. It is claimed that the plaintiff did not give timely notice of his injury, in accordance with the provisions of the charter and by-laws. Notice was served upon the company with promptness after he had been informed by one of his physicians that his illness did not result from disease, but from an accident. We do not think.that the first notice that he was suffering with neuralgia was binding upon him. It would be a hard rule, and one which the rules of the company must place beyond doubt, which would deprive a member of his benefits through the mistake of his physician. The notice was served as soon as he ascertained that the accident with which he had met was the occasion of his trouble. We think this a sufficient compliance with the by-law.

6. Dr. Hume was called as a witness by the defendant, and asked to state what he discovered on making his examination of Mr. Phillips. This was objected to, as a privileged communication. Defendant’s counsel appears to have admitted its privileged character, but sought to justify its admission upon the ground that plaintiff’s attorneys had served upon the defendant notice to produce a letter written by Dr. Hume, January 10, 1897, to the defendant. We do not find this letter introduced in evidence. It requires no argument to show that the notice to produce did not justify the admission of the evidence, or change the rule as to privileged communications.

7. The court instructed the jury that, if the plaintiff is entitled to recover in this case, ‘ ‘ I instruct you that, unless he recovers over $100, he will not recover his costs, but defendant will recover costs against him.” This was an action of assumpsit, and although, in an action of tort, such an instruction has been sanctioned (Steketee v. Kimm, 48 Mich. 322), it has been held improper in an action of assumpsit (Sixma v. Montgomery, 98 Mich. 193). This was an action of assumpsit; therefore the instruction was erroneous.

8. The complaint is made that one of plaintiff’s counsel, in his closing argument, used unjustifiable language, which would naturally tend to prejudice the jury, within the rule of Britton v. Railroad Co., 118 Mich. 491. There seems to have been much feeling, between counsel exhibited on the trial of this cause, as appears from the record. The closing argument of plaintiff’s counsel appears in the record, while that of the defendant’s does not. There was language used which we think the presiding judge, upon his own motion, should have checked. We do not fee! disposed to criticise what appears upon the record here, as it is not likely to occur upon a second trial.

Other questions are raised, but we think they come within the rulings already made, and will not occur upon a new trial.

Judgment reversed, and new trial ordered.

Montgomery, Hooker, and Long, JJ., concurred with Grant, O. J. Moore, J., concurred in the result.


source: Caselaw Access Project

license: Public Domain

text:
    OLIN v HENDERSON.

    1. Boundaries — Field-Notes—Ejectment.
    The field-notes of a United States surveyor upon his survey of the rear concession of a private claim are admissible in evidence in ejectment for land claimed to be a part of the front concession, where the issue is the location of the boundary line between the two concessions, in connection with the field-notes of the front concession by the same surveyor, for the purpose of showing the location of the witness trees, and the fact that, by establishing the line as claimed by the plaintiff, as owner of the front concession, the defendant, as owner of the rear concession, has all the land his patent calls for.
    2. Same — Location oe Monuments — Resurvey—Evidence.
    One who resurveyed a private claim, bounded in front by a river, testified that, finding no old monument near the river, he started from a fence, which he knew to be “very nearly” correct, and found witness trees on the line between the front and rear concessions (the location of which line was the matter in dispute) at a distance of 46 feet less than indicated in the government survey, which discrepancy, he explained, might be due to the varying height of the water in the river. His survey agreed with the government survey in the number of acres in the rear concession. The jury were instructed that the value of the survey as evidence depended upon the correct location of the starting point. Held, that the testimony was not incompetent, nor, in view of the charge, misleading.
    3. Same — Hearsay.
    Testimony of defendant in ejectment concerning statements made by a United States surveyor when defendant built a fence on what he claimed to be the boundary line of his concession, the true location of which line is the matter in issue, is inadmissible, as hearsay, where plaintiff’s grantor, the owner of the adjoining concession, was not present at the interview

      , 4. Evidence — Facts Equally Within Decedent’s Knowledge-Grantee of Heir.
    '3 How. Stat. § 7545, as amended by Act No. 121, Pub. Acts 1895, providing that in a suit prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party shall be incompetent to testify to facts equally within decedent’s knowledge, excludes such testimony where the suit is prosecuted by a remote grantee of decedent’s heirs. •
    5. Ejectment — Right to Maintain.
    One in possession of land under an executory contract of sale may maintain ejectment against a trespasser.
    6. Same — Proof of Possession — Appeal — Objections not Raised Below.
    Where defendant in ejectment permits the trial to proceed upon an evident understanding that plaintiff’s possession under a contract giving the right to such possession is conceded, his objection, raised for the first time on appeal, that the proof of possession is insufficient, will not be considered.
    7. Same — Declaration—Allegation of Title.
    Under 2' How. Stat. § 7790, providing that plaintiff in ejectment must show a valid subsisting interest in the premises, and the right to, recover the possession thereof, and section 7797, providing that the declaration shall state whether plaintiff claims in fee, or for life, or for a term of years, or otherwise, it is sufficient for one in possession under an executory contract of sale to allege title in fee, without setting up the contract.
    8. Boundaries — Agreement and Acquiescence.
    To establish a boundary line by agreement and acquiescence, not only must there have been an express agreement, and monuments erected and acquiesced in, but a doubt or controversy must have existed as to the true line; otherwise, the statute (2 How. Stat. § 6179) prohibiting the conveyance of real estate by parol renders the agreement inoperative.
    Error to Wayne; Hosmer, J.
    Submitted January 27, 1899.
    Decided May 9, 1899.
    Ejectment by Rollin C. Olin and Oscar Le Seure against Thomas Henderson. From a judgment for plaintiffs,' defendant brings error.
    Affirmed.

      This is an action of ejectment for the recovery of “a parcel of land, 19 rods wide, at the rear of the front concession of private claim No. 259, and being the southerly part of said front concession,” containing 2^ acres, which plaintiffs claim'in fee. The situation will appear from the following plat:

    The land in dispute is marked with a cross.
    Plaintiffs introduced the original patent for private claim 259, and deeds which brought the title to Francis F. Palms and others. These parties gave a land contract for the sale of this front concession to Edward T. Adams, trustee, which was by him assigned to plaintiffs, July 28, 1892. This contract, among other descriptions, covers “ all that part of the front concession of said private claim 259 lying southwesterly of the road crossing about the center of the length of said front concession of said private claim 259, said parcel to include all lands from the center of said road or highway to the extreme rear of said front concession, and containing 35 acres more or less, except a strip owned or occupied by the Wabash, St. Louis & Pacific Railway Company. ” This was the ordinary land contract, and contained the following provision in regard to possession :
    “ In the event of said second party taking or assuming possession of said premises, in case of such default, said first parties may treat him as a tenant at will, and take the usual summary proceedings before a circuit court commissioner or justice of the peace to eject and remove him from such premises.”
    The plea was the general issue. The dispute arises over' the boundary line between the front and rear concessions.
    Defendant’s contention is thus stated by his counsel:
    “ (1) That neither plaintiffs nor their grantors made or proved a claim to anything beyond the rear line of the front concession, which is only 80 acres from the border of the river, and that, by going up to defendant’s fence, they had already gone beyond' their said rear line, and. had more land than they even claimed, and the disputed strip was no part of their tract. * * *
    “(2) That the contract gives plaintiffs no title in fee, which is what their declaration claims, but is simply an agreement to sell, which provides that, under certain circumstances, they may become tenants at will of the owners; that it gives them no right of possession; and that, as a matter of fact, it does not appear that they have ever taken possession under it of any part of the front concession, and therefore that they have never even become such tenants.
    ‘ ‘ (3) That neither plaintiffs nor their grantors have ever been in possession of the disputed strip.
    ‘ ‘ (4) That the testimony of the surveyors shows that they were not governed by the original survey of this land in making their surveys. * ■* *
    “ (5) That defendant and those claiming under him had been in the undisturbed possession of that disputed land for more than 15 years, claiming to own it.
    “(6) That defendant and Dennis J. Campau, when they were owners of these adjoining pieces o'f land, had established and agreed upon a line between them, and that it had bpen acquiesced in for* many years, and was thus made the true line, independently of the fact that it was or was not the true line.”
    Two questions were submitted to the jury:
    (1) Where was the original line ?
    (2) Has defendant acquired title by adverse possession ?
    The issue was found in favor of the plaintiffs.

      B. T. Prentis, for appellant.

      Keena & Lightner, for appellees.

       Rehearing denied July 11, 1899.

   Grant, C. J.

(after stating the facts). 1. Plaintiffs introduced, under objection and exception, the field-notes of the survey of the rear concession. The objection made to this is that it did not tend to show title in the plaintiffs. This survey was made by John F. Monroe, a deputy United States surveyor, in October, 1871, in pursuance of an act of congress. The field-notes of the front concession by the same surveyor were also introduced. The purpose of this was to show the location of the witness trees, and that, by establishing the line as plaintiffs claimed, defendant had all the land his patent called for in Monroe’s survey of the concession. This certainly had an important bearing upon the location of the true line, and was admissible for that purpose.

2. A surveyor named Jerome made a survey shortly before the trial. He found no old monument near the river, and started from a fence, which he swears he knew' to be very nearly correct. This testimony was objected to, because the surveyor did not start from some monument placed under the original government survey, — citing Carpenter v. Monks, 81 Mich. 103, and Jones v. Lee, 77 Mich. 35; but it appears that Jerome found witness trees on the line between the concessions. He, therefore, did find monuments, which were controlling. Starting from this old fence, he made the distance from the border of the river to the witness trees above mentioned 46.86 feet less than that in the survey of Mr. Monroe. He testified the difference might be accounted for by the height of the water (the land being low and marshy) when the surveys were made. The defendant’s patent called for 78.14 acres. Jerome testified that from the dividing line according to the Monroe survey to the St. Cosme line (the southern boundary) the rear concession contained the same number of acres. The court instructed the jury:

“The only value of a survey as a survey is dependent upon where you believe the original monument to be; and the surveyor has no better knowledge of that — is not presumed to have any better knowledge of that fact — than any gentleman of the jury. It is for you to fix that by the evidence in this case; and the fact that a surveyor, unless he has the original monument to start from, has made a survey, and what he believes or claims to be a property, is no evidence of that property, except as you may find that he has started from the original point.”

In view of these facts, we do not think the testimony was incompetent, or that the jury could have been misled into the belief that the old fence near the river, from which Jerome started, was controlling.

In this connection defendant’s counsel also urged that it was error not to permit defendant to testify to what Monroe said to him when he built the fence which he now claims to be the dividing line. Plaintiffs’ grantor was not present at that interview. The testimony was clearly hearsay, and was properly excluded.

3. Defendant was asked to testify to a conversation between him and Mr. Campau, deceased, in 1873, in regard to the building of this fence. This was excluded, under 3 How. Stat. § 7545, as amended by Act No. 121, Pub. Acts 1895. Counsel sought to defend the admission of this testimony upon the ground that the plaintiffs are not the assignees of Mr. Campau, but are grantees of his heirs several times removed, and that the statute only applies to a case where the property or right was transferred by the deceased in his lifetime. We think the statute is broad enough to include this case within the beneficent prohibition. This statute was held, in Lloyd v. Hollenback, 98. Mich. 203, to include the heir. If it includes the heir, for, the same reason it should include the grantee or assignee of the heir. It was also held, in Ripley v. Seligman, 88 Mich. 189, that the assigns of a deceased person .include the grantee of the grantee of the deceased person. The testimony was properly excluded.

4. Error is alleged upon the instruction that the question for the jury was where the true line lay, except there had been a line established by adverse possession. Counsel says: “ The question was, Where is the south or rear line of the front concession ? There may be a little over two acres between the two pieces which has never been conveyed.” There is no evidence to sustain the claim that there was any unconveyed land between the two parcels. The entire land had been surveyed and conveyed, and the sole question related to the boundary line between them.

5. It is urged that plaintiffs showed no title in fee, and therefore could not recover; the precise claim being that the contract under which plaintiffs claim title does not convey the fee, and that, having claimed title in fee, they have failed to make their case. To support this proposition counsel cites Buell v. Irwin, 24 Mich. 145, Gamble v. Ross, 88 Mich. 315, and several other authorities. We cannot take the time to analyze those cases. An examination will show that they do not apply to this case. The contract contemplated and permitted possession by the vendees. The trial was evidently conducted upon the understanding that the plaintiffs were in possession under the contract, which evidently gave them the right of possession. Ejectment is a possessory action, and a vendee in such contract, in possession under it, is entitled to maintain ejectment against one who has ousted him from the land. Covert v. Morrison, 49 Mich. 135. A vendor in a land contract giving the vendee right of possession cannot maintain ejectment until he has in some manner terminated the contract relation. Michigan Land & Iron Co. v. Thoney, 89 Mich. 226. The suit having been tried upon the theory that plaintiffs were in possession, and no such objection having been made in the court below, it cannot now be raised. 2 How. Stat. chap. 269, provides for the action of ejectment. Section 7797 provides what the declaration shall state. If the plaintiff is a widow, seeking dower, she must set forth this claim.

“In every other case the plaintiff shall state whether he claims in fee, or whether he claims for his own life, or for the life of another, or for a term of years, or otherwise, specifying such lives or the duration of such term.”

Section 7790 provides that, in order to recover, the plaintiff must show “a valid subsisting interest in the premises claimed, and a right to recover the possession thereof, or of some share, interest, or portion thereof.” While it is true that the plaintiffs had not the legal title, and therefore did not show title in fee, as alleged in the declaration, yet, under the statute in question, prescribing the contents of the declaration, there is only one requirement, if the statute is strictly followed, under which plaintiffs could bring their action, and that is that they claimed in fee. While plaintiffs might with propriety have fully set out the contract, and possession under it, we are cited to no authorities requiring this to be done. Defendant is not prejudiced or misled. The point is purely technical. We are not, therefore, disposed to reverse the case upon this ground.

6. The court was requested to instruct the jury as follows:

“ If. the jury believe the testimony of La Prad and Yermette, which is uncontradicted,-then Henderson and Dennis J. Campau agreed upon the boundary line at a time when they were adjoining owners. It is undisputed that both the parties acquiesced in the line so established up to the time when Hubert brought his trespass case. These being found to be the facts, the line so established will be considered the true line, provided the acquiescence was for a considerable period, even though it is less than the 15 years required by the statute of limitations.”

This presents the most difficult question in the case. In cases of boundary lines it is often difficult to distinguish when the case is within section 6179, 2 How. Stat., prohibiting a conveyance of real estate by parol, etc., and the case where there has been a settlement of the disputed boundary line, acquiesced in by both parties, and where, one party or the other, in consequence thereof, has changed conditions.

The testimony upon this point is as follows: La Prad testified that he lived 11 years at one time upon the Henderson farm, and knev? Mr. Campau.

“ Mr. Campau told me that he was going to mark the line. I have no learning, so it is quite a job for me to keep dates of all those things. It was before I left the Reeves farm, and I left the Reeves farm in 1873. I had a talk with Mr. Campau at that division line. Mr. Campau told me he wanted me to mark that place, or that line; that they were going to establish and call it a division line between them. So he got me to take a brick, or gave me a brick, and I got a spade, and put it down there, and it is there yet, I suppose. He said they had agreed on that; he and Henderson had agreed that that should be the division line. The fence was there at that time.”

Yermette testified, in regard to this fence, as follows:

“ I don’t remember the time it was built, but I seen a new fence built there, which Mr. Campau— At the west side of the fence, at the corner, which, when I came up there with Mr. McDonnell and Mr. Jim Padley, I told the ■ boys, says I, ‘ I suppose that is in there to tell us to get out of there.’ I said, said I, ‘Isuppose this is what says, “Don’t get in that lot.”’ ‘Oh, no!’ he says, ‘I don’t have anything to do with that; it is Mr. Henderson.’ I think it is Dennis Campau. I have known him for quite a few years back. I was on the Henderson farm. ■ He was right there on the west side. I think it is the Woodbridge farm, adjoining Henderson. That fence was newly built. I don’t know how long it was built, but that was a new fence.
Q. In what year was that?
“A. I think it was in 1867 or 1868. I won’t be positive, but I think it was one of them two years that I went through with the boys hunting. Well, it must be about 33 or 34 years ago, I think.
Q. What did Mr. Campau say to you?
“A. Well, he said the agreement; that is, he concluded, him and Henderson, that was his line, and it would be a good thing for to put in a good landmark there,— a stone or a brick. That is all he told me. I didn’t ask no questions whether they were going to put it in. It was none of my business, anyhow, to do so. He said he concluded —him and Henderson — that that was the line of their fences between the two, and a stone or a brick -would be a good landmark. He said he agreed with Mr. Henderson that was their line, and the fence was on the right line; it was the right line, and this agreement made that the line, and that it was in the right place as he spoke. He said that that was what he and Henderson had agreed upon.”

We think the true principle controlling these questions is stated by Chief Justice Campbell in Smith v. Hamilton, 20 Mich. 438 (4 Am. Rep. 398). The testimony does not show that there had been any dispute, or even a doubt, between Henderson and Campau, as to the true boundary between them. There must be, not only an express agreement, and monuments erected, which have been acquiesced in, but there must have been a doubt or controversy as to the true line; otherwise, the case comes ■within the prohibition of the statute. So far as appears upon this record, Henderson and Campau may have had no controversy, nor cared sufficiently at the time to have the matter settled. It may have been agreed to solely for temporary purposes, to separate fields or pastures.- We do not think defendant showed sufficient to bring the case within the decisions of this court sustaining boundary lines fixed by agreement and acquiescence. Cronin v. Gore, 38 Mich. 384; Manistee Manfg. Co. v. Cogswell, 103 Mich. 605; Pittsburgh, etc., Iron Co. v. Lake Superior Iron Co., 118 Mich. 109.

Other objections are raised to the charge of the court which we do not think it important to mention. We find in them no error. The instructions fairly left the question to the jury on the two points which were involved in the case.

J udgment affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    LAMB KNIT-GOODS CO. v. LAMB GLOVE & MITTEN CO.
    1. Trade-Names — Right to Exclusive Use.
    One Lamb invented a knitting machine, and sold his rights under his patents to a corporation, which carried on the manufacture at first under the name of the Lamb Knitting-Machine Company, and later under the name of the Lamb Manufacturing Company. The Lamb machine was used by the Lamb Knitting Company, a corporation organized by the inventor for the manufacture of knitted goods, which corporation sold its property and business to the Lamb Knit-Goods Company. The last-named corporation employed in its goods a peculiar stitch, which, ..however, was in common use before such corporation adopted it. The words “Lamb Knit” had come to be generally applied to goods manufactured on the Lamb machines. Held, that the Lamb Knit-Goods Company acquired no exclusive right to the use either of the peculiar stitch, or of the word “Lamb,” in combination with other words, to designate goods of its manufacture.
    2. Same — Similarity oe Corporate Names — Injunction.
    Lamb, an inventor of knitting machines, assisted in organizing a corporation for the manufacture of knitted goods, principally gloves and mittens, under the name of the Lamb Knit-Goods Company. After acting for some years as its superintendent, he left its employ, and organized, in another town, the Lamb Glove & Mitten Company, and engaged in the manufacture of gloves and mittens on the Lamb machines. The use of the name was sought to be enjoined under 3 How. Stat. § 4161a, forbidding a corporation from assuming a name so similar tQ that of another corporation as to be liable to mislead. It was shown that the business of the corporations was conducted through agents largely, and that the public had in numerous instances been deceived. Held, that an injunction should issue.
    Appeal from Shiawassee; Smith, J.
    Submitted February 7, 1899.
    Decided May 9, 1899.
    Bill by the Lamb Knit-Goods Company to restrain the Lamb Glove & Mitten Company and Isaac W. Lamb from using the word “Lamb” in connection with their business in such manner as to mislead complainant’s customers. From a decree dismissing the bill, complain- • ant appeals.
    Reversed.

      Fred L. Chappell and II. P. Stewart, for complainant.

      Cahill & Wood, for defendants.
   Montgomery, J.

The complainant avers by its bill of complaint that it is a corporation, with its home offices at Colon, Mich.; that, prior to its organization, the defendant Isaac W. Lamb had organized a company at Concord, Mich., known as the “Lamb Knitting Company,” and that, at the time of complainant’s organization, it acquired all of the property, business, and good will of the Lamb Knitting Company from Isaac W. Lamb, and paid a valuable consideration therefor; that, at the time of the organization of the complainant, Isaac W. Lamb was interested in the organization of the company, and received a large amount of the capital stock; that the complainant assumed the name of the “ Lamb Knit-Goods Company” with the knowledge and consent and at the desire of Isaac W. Lamb; that the complainant was organized to conduct a business similar to that which had been previously ’ conducted by the Lamb Knitting Company, which was the manufacture and sale of knitted goods, principally gloves and mittens; that these gloves and mittens have in the main been knitted with a peculiar stitch, and that, from the connection of complainant’s name with said goods, the peculiar stitch has become known as the “Lamb Stitch;” that gloves and mittens may be manufactured by' the same machine with a different stitch, which will be equal to the complainant’s in durability; that the stitch used by the complainant is for the purpose of distinguishing complainant’s goods; that, after the ■organization of complainant, Isaac W. Lamb was in its employ for a number of years as superintendent, but that he became dissatisfied, and left complainant’s employ on the 8th of April, 1892; that thereafter he, with the assistance of others, organized a company known as the “Lamb Glove & Mitten Company,” at Perry, Mich., and commenced to manufacture gloves and mittens knitted with the same peculiar stitch as that employed by the complainant; that the name adopted by the defendant company is similar to that adopted by the complainant, and that purchasers and dealers are deceived thereby, and buy the goods of the defendant believing them to be the goods of the complainant; that the business of the complainant has been damaged thereby. Complainant avers that it is entitled to the exclusive use of the word “Lamb”. in connection with knit goods of any description, and to the word “Lamb” in its corporate name; that it has the exclusive right to use the peculiar stitch; and that for this reason the words “ Lamb Knit” have become and are a valid trade-mark at common law. The bill prays an accounting and an injunction.

The answer admits that the complainant assumed the name of the “Lamb Knit-Goods Company” with the knowledge and consent of Isaac W. Lamb, but denies that the complainant is entitled to the exclusive use of the words “ Lamb Knit,” or the urse of the word “ Lamb ” in connection with other words indicating knitted goods. The answer also admits that the complainant acquired all the property, business, and good will of the Lamb Knitting Company, but avers that Lamb acted in the transaction, not for himself, but as agent for the Lamb Knitting Cornpany. The answer also admits that the defendant corporation organized with, and is conducting a business under, the name of the “Lamb Glove & Mitten Company,” but denies the allegation that this name is so similar to complainant’s as to mislead purchasers and dealers. The answer further avers that the peculiar stitch adopted. by complainant has been in common use for many years; that the defendant Lamb is the inventor of the knitting machine upon which this stitch is made, and that he sold the rights, under patents granted to him, to the Lamb Knitting-Machine Manufacturing Company of Rochester, N. Y., and the Lamb Knitting-Machine Company of Springfield, Mass., which companies consolidated under the name of the “ Lamb Knitting-Machine Manufacturing Company of Chicopee Falls, Mass.,” and that this last-named corporation is still doing business under the name of the “Lamb Manufacturing Company,” and is manufacturing Lamb knitting machines; that in 1863 defend, ant Lamb invented a machine for knitting many kinds of knit goods, and procured a patent thereon, and afterwards procured patents on various improvements; that in 1885 he issued printed directions for using the “New Lamb Knitter,” manufactured by the New Lamb Knitter Company of Jackson, Mich.; that a large number of persons purchased these machines; that a large number of the persons and corporations which use these machines advertise such goods as made by the Lamb knitters, and that the name of “Lamb,” as applied to knitting machines, and the terms ‘ ‘ Lamb Knit ” and ‘ ‘ Lamb Goods, ” have been in common use in this country, by a large number of different persons, firms, and corporations, for more than 25 years.

The case was heard on pleadings and proofs, and the bill dismissed. Complainant appeals.

We are well satisfied that the complainant has not established its right to the exclusive use of the term “Lamb Knit.” The testimony shows that goods manufactured on the Lamb machine were in common use many years before the organization of' complainant company, and that, to distinguish such goods from goods knitted on other machines, they were designated as “ Lamb Goods,” “Lamb Machine Goods,” or “Lamb Knit Goods.” It also appears that the peculiar stitch which complainant claims exclusive right to was in common use before complainant adopted it.

The case narrows down to the single question whether the defendant infringed the rights of complainant by the use of a corporate name so similar to that of complainant as to mislead the public, and, if so, what remedy ought to be applied. There can be no doubt that by the transfer to the complainant of the good will of the Lamb Knitting Company it was the intention of the defendant Lamb to grant the right to use his name in connection with the complainant’s business. In fact, he assisted in organizing the corporation, and became a stockholder in the complainant company. The statute (3 How. Stat. § 4161a) authorizes the formation of a corporation, and provides that no two companies shall assume the same name, or a name so similar as to be liable to mislead. It is contended that the defendant Lamb had entered into no express agreement not to use his own name, and that Mr. Lamb, in making a sale of the Lamb Knitting Company to the complainant, was acting on behalf of the Concord company, and that the Concord company could not, and Mr. Lamb did not, sell the exclusive right to use Mr. Lamb’s name, nor undertake that he would not engage in any similar business elsewhere. It appears, however, that the proposition to the promoters of complainant came from Mr. Lamb, and, as before stated, he is estopped from asserting that the company did not take its name rightfully.

Reference is made to the case of Williams v. Farrana, 88 Mich. 473 (14 L. R. A. 161). That case, however, recognizes a distinction between a corporate name and that of a partnership. In the majority opinion it is said: “A corporate name is regarded in the nature of a trademark, even though composed of individual names, and its simulation may be restrained. After adoption, it follows the corporation.” Reference is also made to Supreme Lodge Knights of Pythias v. Improved Order Knights of Pythias, 113 Mich. 133. In the latter case there was no evidence that any person had been misled, and, while the case is near the line, the court held that the rights of complainant had not been infringed. In the present case the testimony shows that dealers have been misled, and in view of the fact that the complainant’s business is largely the manufacture of gloves and mittens, and that the name “ Lamb ” is prominent in the corporate name, we think it is likely to mislead. The case is very similar to Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462 (43 Am. St. Rep. 769). In that case the complainant’s name did not describe its business. The business was, in fact, the manufacture and sale of soap. The court restrained the defendant from carrying on the business in the name of the Higgins Soap Company. The court held that, even if the name was assumed in good faith, without design to mislead the public and acquire the complainant’s trade, the defendant, knowing the facts, must be held to the same responsibility. See, also, Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manfg. Co., 37 Conn. 278 (9 Am. Rep. 324); Myers v. Buggy Co., 54 Mich. 215 (52 Am. Rep. 811); Frazer v. Lubricator Co., 121 Ill. 147 (2 Am. St. Rep. 73); Pillsbury v. Flour Mills Co., 12 C. C. A. 432, 64 Fed. 841; Walter Baker & Co. v. Baker, 87 Fed. 209.

It is true.that the business office of defendant is not located in the same village as that of complainant, but it appears that the business has been conducted through agents largely, and that the public have, in numerous instances, been deceived. We think the case falls within the class in which protection should be afforded.

The decree will be reversed, and a decree entered restraining the defendant from continuing the use of the corporate name “'Lamb Glove & Mitten Company,” or any name in which the word “ Lamb ” appears, in connection with other words indicating a business similar to that of complainant. Subject to this restriction, defendant is at liberty to advertise its goods as made on the Lamb knitting machine.

The other Justices concurred.


text:
    RAYMOND v. WHITE.
    Judgements — Bar—Action eor Installments.
    A judgment for an installment due under a contract whereby defendant agreed to pay plaintiff a specified sum weekly so long as devices invented by plaintiff were used by defendant in his manufactures, in consideration of which plaintiff was to assign patents already obtained and to devote his time to the invention of improvements, is not a bar to an action for installments becoming due after the entry of the judgment; the contract not being a mere contract of service. Continental Ins. Co. v. lamber Co., 93 Mich. 139, distinguished.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted February 8, 1899.
    Decided May 9, 1899.

      Assumpsit by Silas H. Raymond against T. Stewart White and Thomas Friant to recover an amount due under a contract for the manufacture of a patented article. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Bundy & Travis ( Charles Chandler, of counsel), for appellants.

      McGarry & Belden, for appellee.
   Grant, C. J.

The contract on which this suit is based is sufficiently stated in 119 Mich. 438. This suit is for a second installment of the weekly stipend agreed upon by that contract. The defense is the same as in that case, and the further defense was interposed .that the prior suit is a bar to this. It was there held that this was not a. mere contract of service. The case is not, therefore, within the rule stated in Continental Ins. Co. v. Lumber Co., 93 Mich. 139 (32 Am. St. Rep. 494), and authorities there cited. The contract provides for the payment of $20 weekly until it is terminated in the manner therein provided. Defendants cannot disregard one part of the contract, and have the benefit of the other.

Judgment affirmed.

The other Justices concurred.


text:
    PEOPLE v. McBRIDE.
    1. Criminal Law — Embezzlement—Declarations of Copartner —Res Gestíe.
    Upon the prosecution of a member of a law firm for the embezzlement of the proceeds of a mortgage placed with him for collection, statements made by his copartner some 15 months after the collection is claimed to have been made, that the mortgage was still unpaid and in process of foreclosure, are not admissible as part of the res gestee.

    2. Same — Agency.
    Nor are such statements admissible against respondent on the • ground of agency.
    3. Same — Drafts—Payment—Evidence.
    In a prosecution for the embezzlement of the proceeds of a draft intended to be made payable to the order of respondent in payment of a mortgage which he held for collection, but, by mistake, drawn to the order of another, the draft, indorsed by respondent, is admissible to show respondent’s receipt of the funds, in connection with proof that the drawee was apprised by the drawer of his mistake,.and directed to pay the draft to respondent, and that such payment was in fact made.

      Exceptions before judgment from superior court of Grand Rapids; Burlingame, J.
    Submitted February 10, 1899.
    Decided May 9, 1899.
    James E. McBride was convicted of embezzlement*
    Reversed.
    This is exceptions before sentence to review proceedings-in which respondent was convicted of embezzlement. The testimony on the part of the people tended to show that in August, 1895, the respondent and his son, Edward G. McBride, were copartners engaged in the practice of law at Grand Rapids; that one Frank Lewis during that month left with respondent a note and mortgage made by one Lyons, of Holland, Mich., for collection; that from time to time he made inquiries about the progress which was being made, and various reasons were assigned by Edward G. McBride why the money had not been received, until in July, 1897, he learned that the money on the mortgage had been paid in January, 1896, and the mortgage discharged ; and that the discharge of the mortgage was not executed by him. The people called John A. Seymour, cashier of the Fourth National Bank of Grand Rapids, who testified that on the 22d of January, 1896, he paid to respondent a draft drawn on his bank by the cashier of the Holland City Bank, payable to the order of the Fuller & Fuller Company, and indorsed by McBride & McBride; that before paying the draft he called up the Holland City Bank for instructions to pay this sum to McBride & McBride. The cashier of the Holland City Bank was called, and testified that he drew the draft in question in payment of the money received on collection of the said note and mortgage received from McBride & McBride for collection, and by mistake made it payable to the Fuller & Fuller Company (having just previously drawn a draft in this name), and on the 22d of January, when Mr. Seymour called him up, he instructed him to pay the draft to McBride & McBride. The prosecution also showed a demand and refusal to pay it over to the complaining witness. The respondent denied having received the money on the draft, and showed that the indorsement of the firm name of McBride & McBride was not in the handwriting of either member of the firm, and gave evidence tending to show that the discharge was signed by the complaining witness. Respondent also gave testimony tending to show that on the 22d of January, 1896, he was not able to be at the Fourth National Bank, as he was confined to his house by illness.

      David E. Burns (John O. Zabel, of counsel), for appellant.

      Horace M. Oren, Attorney General, and Frank A. Rodgers, Prosecuting Attorney, for the people.
   Grant, C. J.

(after stating the facts). The first four assignments of error relate to the admission of statements of Edward G. McBride relative to the progress of the collection, made from time to time, and the fifth relates to the admission in evidence of a statement by him that the firm had received a draft, which, on due inspection, they found did not belong to them. The ruling on the last question was not excepted to, but the court, on making an earlier ruling, stated that all testimony of the statements of Edward G. McBride was taken subject to exception. The character of the testimony admitted against the objections and exceptions noted under the first four assignments may be illustrated by a question put to Albert Lewis, and the answer. The question was:

“You may state what Ed. said to you in regard to this note and mortgage.”

The witness answered:

’ “I went there several different times * * * to see him about other matters; and incidentally he would talk about the Lyons mortgage. He said it was being foreclosed ; and one time he said a copy of the notice of foreclosure was being prepared by the printer, and would soon be through his hands, and we could have a copy of the paper. I asked him what paper it was being printed in, and he said he didn’t remember, but he would ascertain, and send us a copy. I think that was in April, 1897; can’t say definitely.”

As the evidence showed that the mortgage had been discharged and delivered up to Lyons in 1896, it is apparent that this statement, if made by respondent, would be very damaging, as it is an attempt to temporize by an untruth. The very fact that this testimony was important suggests the necessity of care in determining its admissibility. It was mere hearsay, unless it be held that it was a part of the res gestee, or that respondent’s partner was so far his agent as to bind him by an admission, or, rather, to reflect upon him an untruthful equivocation. It was clearly not a part of the res gestee.

“The declarations of third persons are not admissible in evidence as part of the res gestee, unless they in some way elucidate, or tend to give a character to, the act which they accompany, or may derive a degree of credit from the fact itself.” 1 Rosc. Cr. Ev. (8th Ed.) 41, note.

See, also, People v. Mead, 50 Mich. 228.

The case of Simpson v. Waldby, 63 Mich. 439, cited by the counsel for the people, is clearly distinguishable from this. In that case it was held that the statement of a clerk in a bank as to whether a draft had been paid was admissible. This was on the ground that the statement was made in the course of his agency, and constituted á part of the res gestee. It was a civil case, and the statement was one of fact, by one of whom the witness was, by the course of dealing, expected to inquire. This statement, under these circumstances, would bind the firm, for the reason that he spoke for the firm. So, in the case of a partnership, each partner speaks for the firm, and binds all as to its civil obligations. This is on the ground that each partner is agent for all partnership business. It is quite another question, however, whether a copartner may make an admission which will bind his copartner in a criminal proceeding; and it is still a greater stretch of the authority of an agent to say that he may, by an untruthful account of what has gone on in the business of his principal, subject that principal to punishment as for a crime. See Lambert v. People, 6 Abb. N. C. 181. Wharton states the rule as follows:

“When the relation of principal and agent in a particular transaction is established, the agent’s admissions may be imputed to. the principal, if his agency involves the making of such admissions.” Whart. Cr. Ev. § 695.

The illustrations given by the author consist of cases in which the statement of the agent was a part of the res gestee.

In 1 Rose. Cr. Ev. (8th Ed.) 85, it is said:

“An admission by an agent is never evidence in criminal, as it is sometimes in civil, cases, in the sense in which an admission by a party himself is evidence. An admission by the party himself is in all cases the best evidence which can be produced, and supersedes the necessity of all further proof; and in civil cases the rule is carried still further, for the admission o'f an agent, made in the course of his employment, and in accordance with his duty, is as binding upon the principal as an admission made by himself. But this has never been extended to criminal cases.”

We think this testimony inadmissible under either of the rules stated. The statements of Edward G. McBride were made 15 months after the commission of the alleged ■ offense. The statement is not claimed to be a matter of fact, but quite the contrary,— an untruthful account of the state of the business, from which the jury would naturally infer an attempt to cover up an offense.

It is next contended that it was error to permit the draft drawn by the Holland City Bank, payable to the order of the Puller & Puller Company, to be admitted. It is said that the draft was either the property of the Puller & Puller Company, or was a nullity; that is, it was dead paper in the hands of McBride & McBride. We think none of these objections are tenable. The testimony of the prosecution tended to show that this draft was in fact sent to McBride & McBride in payment for the Lyons mortgage, that by mistake it was made in- the name of the Fuller & Fuller Company, that it was in fact presented for payment by respondent, and that its payment to him was authorized by the drawer, and that the amount of the draft was in fact paid to him. If the jury believed this testimony, it would show, beyond cavil, that the respondent received this money as the proceeds of this collection, and was the attorney of Lewis. It was entirely competent to trace the money into respondent’s hands by the method pursued. The same considerations answer the respondent’s contention that the court should have directed an acquittal. The case was a proper one for the jury.

None of the other questions require discussion, as they are not likely to arise on a new trial.

For the errors pointed out, the conviction will be set aside, and a new trial ordered.

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


author: Long, J.

text:
    MORLEY BROS. v. NATIONAL LOAN & INVESTMENT CO.
    Building and Loan Stock — Exemptions—Homestead.
    3 How. Stat. § 3981;», which provides that building and loan stock in the hands of a householder, to the amount of 51,000, shall be exempt from levy and sale on execution or attachment, except where the shareholder has “a homestead exempted under the general laws of this State,” renders exempt from execution shares held by a member whose only homestead interest is that which he has in property belonging to his wife, and occupied jointly with her.

      Certiorari to Wayne; Carpenter, Hosmer, Frazer,
    Donovan, and Lillibridge, JJ.
    Submitted April 4, 1899.
    Decided May 9, 1899.

      Mandamus by Morley Brothers, a corporation, to compel the National Loan & Investment Company to transfer to relator certain shares of stock in respondent corporation. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Keena & Lightner, for relator.

      Ralph L. Aldrich, for respondent.
   Long, J.

This case comes into this court by writ of certiorari to review the action of the circuit court for Wayne county in denying the petition for a writ of mandamus.

It appears that Morley Bros., doing business at Saginaw, obtained a. judgment in the Saginaw circuit court against Fred E. Talmadge, who resides at Saginaw. The judgment not being paid, an execution was issued to the sheriff of Wayne county, and levied upon 20 shares of stock of' the respondent company, a corporation organized under Act No. 50, Pub. Acts 1887 (3 How. Stat. § 3981a et seq.). The stock was sold upon the execution, and bid in by the petitioner, and a demand made upon the respondent company for a transfer of the stock to it. This was refused on the ground that the stock was exempt from levy and sale on execution.

Section 16 of the act under which the respondent corporation was organized provides:

“The shares held by any member, being a householder, of any association incorporated under the provisions of this act, shall be exempted from levy and sale on execution or attachment to the amount of one thousand dollars in such shares at the par value thereof: Provided, that such exemption shall not apply to any person who shall have a homestead exempted under the general laws of this State.” 3 How. Stat. § 3981 p.

It was shown that Talmadge, with his wife and children, has lived for the past seven years at No. 520 Hayden street; that the property belongs and has belonged to the wife since 1891, and is of the value of about $2,500, but covered by a mortgage of $2,382; and that Talmadge owns no real estate.

The claim of the petitioner is that the homestead exemption provided for by section 7721, 2 How. Stat., is intended for the family, and is exempt in the interest of all the members of the family, equally when the title to the property is in the husband or in the wife, and that, therefore, Mr. Talmadge, the holder of this stock, has a homestead, within the meaning of section 16 of the act.

The land in question belongs to the wife, but is the family homestead. As said by this court in Rowe v. Kellogg, 54 Mich. 206:

“There can be no question but that the husband has a valuable and important interest, which the courts will protect. As head of the family, he has possession jointly with his wife, and has, therefore, a right to complain of any unlawful interference. * * * The land is in his tenancy, while the family occupy it, as distinctly as if leased to him.”

The tenancy here is not, however, sought to be disturbed. The only question is, Has Mr. Talmadge a homestead, within the meaning of this act? Does the fact that he occupies a dwelling house owned by his wife prevent him from claiming the benefit of section 16 ? He has a beneficial interest in the homestead owned by the wife, so long as she occupies it, but it is an interest which inures to him only as an incident to his being the head of the family. The wife may sell the property without the consent of the husband, and thus defeat his homestead interest and that of the family, or she may abandon her husband and family, and oust them from possession of the property which-has been occupied as a home. The nature of and limitations on the husband’s interest in the wife’s homestead are fully discussed in Buckingham v. Buckingham, 81 Mich. 89. It was said:

“As against creditors of the wife, he is entitled to be protected in his possession and occupancy of the home-stead. The Constitution and laws, however, confer upon married women such absolute right to the disposition of their own separate property that she may convey the homestead by deed without the husband’s joining in the instrument. If she may do this voluntarily, and without his consent, there would seem to be no legal principle which would prevent her from voluntarily deserting her husband and abandoning her homestead.”

It can hardly be said that such a homestead as here described is the homestead which the legislature intended, by the act, should deprive the owner of stock of the right to the exemption up to $1,000 from levy and sale on execution. The purpose of the act was to enable persons of small means to acquire a homestead, and we think it cannot be said that the homestead intended by the act which would defeat the exemption was one resting in the unstable holding which the husband might have in property owned by the wife.

The court below very properly denied the writ of mandamus. The order will be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    PENBERTHY INJECTOR CO. v. LEE.
    Trade-Names — Right to Exclusive Use — Injunction.
    One Penberthy, the inventor of an appliance for injecting water into steam-boilers, procured the organization of a corporation for the manufacture and sale of the appliance, and, in consideration of a transfer of his patent to the corporation, became the owner of nearly all of its shares of stock. He insisted upon the adoption of “ Penberthy Injector Company ” as the corporate name, and upon the use of his name on the injectors and in all the advertising, which was very extensive, by virtue of which the name “Penberthy Injector ” became everywhere familiar to the trade. After six years, Penberthy disposed of his interests in the corporation, and engaged, in company with former officers and employés of the corporation, in the same vicinity, in the manufacture of injectors under a patent issued to Penberthy covering an appliance of like principle and appearance to that made by the corporation. The firm adopted the name “ Lee-Penberthy Manufacturing Company,” and used the word “ Penberthy ” upon its product and in all its advertising. Held, that the corporation was entitled to an injunction on the ground of infringement of its trade name.
    Appeal from Wayne; Adams, J., presiding.
    Submitted April 5, 1899.
    Decided May 9, 1899.
    Bill by tbe Penberthy Injector Company against William O. Lee, Thomas J. Sweeney, Homer Pennock, and William Penberthy, copartners as the Lee-Penberthy Manufacturing Company, to enjoin the use by defendants, in their firm name and in their advertising, of the word “Penberthy,” in such manner as to mislead complainant’s customers. Prom a decree for complainant, defendants appeal.
    Affirmed.

      T. T. Leete, Jr., and James Whittemore, for complainant.

      C. C. Yerkes, T. E. Tarsney, and W. G. Fitzpatrick, for defendants.
   Moore, J.

This is an appeal by defendants from a decree entered in the court below in favor of the complainant. The written opinion by Judge Adams is sustained by the record. It states the question involved so cleai'ly that a portion of it is quoted as a statement of the case:

“The bill in this .case was filed in January, 1898, for the purpose of restraining the defendants from infringing a certain trade-mark or trade-name made use of by complainant in its business for several years. It appears from the bill and defendants’ answer, and the proofs taken, that complainant is a corporation ox’ganized in April, ,1886; that the original stockholders were defendants William Penberthy and Homer Pennock, and one S. Olin Johnson; that the capital stock was divided into 2,000 shares, of $25 each, of which William Penberthy took 1,998, and the others 1 each; that the purpose of the corporation was to make and sell injectors for injecting water into steam-boilers, under a patent applied for by said Penberthy; and that, in consideration of the transfer to the company of said invention by said Penberthy, said shares of stock were issued to said Penberthy. He does not appear to have contributed any money, or anything but the invention. The name ‘ Penberthy Injector Company ’ was adopted because said Penberthy requested it and insisted upon it; and also he insisted that the name should appear on the injectors, and be advertised in connection with the business, all of which was assented to by his then associates, and carried into effect.
“ It also appears that complainant proceeded, as soon as organized, to obtain a manufacturing plant at 228 Abbott street, in Detroit, obtained tools and machinery, and proceeded to make tests and experiments, and manufactured some 2,000 injectors pursuant to said patent, in which experiments and tests and manufacturing the company expended about $5,000, but the injectors so made were a failure, and many were returned; that thereupon the company made certain improvements, which were patented in the name of the company, and known as ‘ Desmond’s first and second patents,’ and ‘Sweeney’s patent,’ and finally obtained an injector which was satisfactory, and a success commercially, which it proceeded to manufacture and sell to a large extent, and that upon all so manufactured and put upon the market, at the request and with the consent of said Penberthy, the words ‘ Penberthy Injector,’ in one form or another, appeared, never omitting the word ‘Penberthy;’ that the complainant issued large quantities of printed matter, and advertised in trade journals extensively, in all which advertising the same name ‘ Penberthy ’ appeared in connection with the injector, so that this injector became generally known throughout the United States, and even in foreign countries, as the ‘Penberthy Injector,’ and as such was favorably received and considered; that in such printing and advertising the complainant expended about $75,000, and by these means the word ‘ Penberthy,’ both upon the injectors and in the advertisements and printed matter,'and also as a part of the corporate name of complainant, became of very great value and' importance, as a trade-mark or trade-name, to complainant. It further appears that the defendant Pennock became interested in complainant corporation as a stockholder for several years, and was at one time president of the corporation; that defendant Sweeney was the mechanical superintendent and experimenter for. complainant from 1886 up to 1897, and that defendant William O. Lee was employed by complainant as a traveling salesman from 1886 up to 1897, and that the defendant Penberthy was a stockholder in complainant corporation from its organization, in 1886, till 1892, when he sold his remaining stock for the sum of about $5,000, and retired from the corporation.
“It further appears that defendant William Penberthy, in about 1892, and after selling his said stock, obtained a patent upon an injector embodying substantially the same principles, and of nearly the same general appearance, as complainant’s injector (the main difference being in the use of rubber ball valves instead of hinge valves, but accomplishing substantially the same purposes, and in substantially the same way); that afterwards (in 1897, if I mistake not) defendant Penberthy, in conjunction with the other defendants, formed a copartnership, under the name of the Penberthy-Lee Manufacturing Company or the Lee-Penberthy Manufacturing Company (both names appearing at one time or another), for the purpose of making and selling injectors under said patent of 1892; that they located their plant in the city of Detroit, and on Abbott street, and have largely advertised their said injectors in nearly the same general form, appearance, and manner as complainant’s advertisements, using the word ‘Penberthy,’ in some form or connection, in all cases, and marking their goods in some form of expression, in' all cases, embracing the word ‘Penberthy.’ And complainant claims all this to have been done in simulation of complainant’s trade-mark and trade-name, and for the unjust and fraudulent purpose of trading upon complainant’s reputation, and appropriating to themselves complainant’s good will, and diverting to themselves the business of the complainant, by inducing the purchasers of injectors to suppose that, in buying the injectors made and sold by defendants, they were purchasing the Penberthy injectors made and sold by complainant, in fraud of the rights of complainant, and to complainant’s great injury.
“ The proofs taken disclose the fact that, since the filing of complainant’s bill, the defendants have become incorporated under the name of the Lee-Penberthy Manufacturing Company; that now they inscribe upon their injectors the words ‘Lee Automatic Injector’ on one side, and on the other, ‘Wm. Penberthy’s Patent;’ giving, in small letters, the date and number. But' no change has been made of any importance in their advertising matter. The word ‘ Penberthy,’ in some form or connection, always appears.
“There does not seem to be much, if any, dispute between the parties as to the main facts in the case. The question is as to the use of the word ‘ Ppnberthy ’ in connection with the manufacture and sale of injectors. The complainant claims that it has the exclusive right to use that name as a trade-mark or trade-name, upon three grounds, namely: (1) That it is a part of its corporate name, and indicates origin and ownership; (2) that the name was adopted in the first place, and used for many years, at the instance and request, and with the knowledge and consent, of said William Penberthy, and that now, after the large expenditures by complainant in advertising its goods under the name, and making its injectors known to the world as, the ‘Penberthy Injector,’ the defendant Penberthy is estopped from making use of the same name in connection with injectors, and from conferring that right on defendants, either as a copartnership or corporation; and (3) that, under the circumstances, the name has become impersonal, and does not represent William Penberthy, or any other person, but is simply a trade-mark or trade-name applied to complainant’s injectors. On the other hand, defendants claim that the only right complainant ever had to the use of the name was by contract, by which it had the right to apply the name to injectors manufactured under William Penberthy’s original patent, but only to such injectors; that, having abandoned the manufacture of injectors under that patent, complainant forfeited the right to the use of the name in its business, or as a trade-mark upon its injectors made under other and later patents. And, second, defendants claim that William Penberthy has the natural right, of which he cannot be deprived, to use his own name in connection with his own business, either alone or in connection with others. The question presented is largely a question of law.”

After discussing the law of the case, the learned judge continued:

“But it seems to me useless to follow the authorities any further, considering the relations that all of the defendants held to the complainant corporation. Considering the proof, from the testimony of William Penberthy and others, as to his authorizing, requesting, and insisting upon the name ‘Penberthy’ appearing in the corporate name of complainant, and upon the injectors manufactured by complainant; considering the large outlay by the complainant in advertising and making this name widely known, and the sale by Penberthy of his stock in 1892, and his subsequent proceedings, and the formation of the defendant company, and its location on Abbott street, and their persistence in using the word ‘ Penberthy ’ upon their goods, and in their business and corporate name, and in all their advertising matter; and considering the proof that buyers and people dealing with the concern were led to think that defendant copartnership or corporation was a continuation of complainant’s business, as successor or otherwise, — I cannot doubt that defendants intended to appropriate a portion of complainant’s good will and good reputation. I cannot doubt that the natural tendency of the situation would be to divert the complainant’s business to the defendants. I do not question or doubt the general natural right which a man has to use his own name in his own business without interference; but I think, in a case like the present one, such right should be guarded by language sufficiently clear and explicit to notify all persons that the business is not that of another. I do not think this has been done by these defendants, and I am of the opinion that complainant has made out a good case, and is entitled to the injunction prayed for, with costs.”

And the following decree was entered:

“That the said defendants, severally and jointly, and the firm and corporation known as the Lee-Penberthy Manufacturing Company, their counselors, attorneys, solicitors, agents, servants, and workmen, be, and they are, each and every one of them, enjoined from the use of the name ‘ Penberthy ’ in the firm or corporate name in any way, and from the use of the name ‘ Penberthy ’ upon their product, packages, or advertising matter, or advertisements. But said defendants may indicate that their product is manufactured under W. Penberthy’s patent, if such be the fact, provided that with each and every such statement, and in connection therewith, there shall be also indicated, in type equally as prominent, that ‘ W. Penberthy is distinct from, and has no connection with, the original Penberthy Injector Company.’”

The legal principles involved which are decisive of this case are also involved in the case of Lamb Knit- Goods Co. v. Lamb Glove & Mitten Co., ante, 159, so it will not be necessary to discuss them here: In addition to the authorities cited in the Lamb Knit- Goods Co. Case, the following are cited: William Rogers Manfg. Co. v. Rogers & Spurr Manfg. Co., 11 Fed. 495; Goodyear Rubber Co. v. Goodyear's Rubber-Manfg. Co., 21 Fed. 276; R. W. Rogers Co. v. Wm. Rogers Manfg. Co., 17 C. C. A. 576, 70 Fed. 1017; Garrett v. T. H. Garrett & Co., 24 C. C. A. 173, 78 Fed. 472; Merchants' Detective Ass'n v. Detective Mercantile Agency, 25 Ill. App. 250; Russia Cement Co. v. Le Page, 147 Mass. 206 (9 Am. St. Rep. 685); Howe v. Machine Co., 50 Barb. 236; Newman v. Alvord, 51 N. Y. 189 (10 Am. Rep. 588).

The decree is-affirmed, with costs.

Grant, C. J., Montgomery and Hooker,- JJ., concurred. Long, J., did not sit.


text:
    POUND v. BOARD OF CANVASSERS OF WAYNE CO.
    Elections — Recount—Circuit Judge.
    Act No. 125, Pub. Acts 1897, amendatory of an act providing for the election of county boards of canvassers, by section 4 .authorizes the board to canvass votes for state and county officers, presidential electors (each year when chosen), members of congress, and members of the legislature. Section 10 provides that any candidate voted for at any election at which state, county, or district officers are voted for, who conceives himself aggrieved on account of any fraud or mistake in the canvass, or in the returns made, may petition for a recount. By section 11, notice of such petition is required to be served on the opposing candidate, personally, or, if he cannot be found, by leaving the same at his residence, 12 hours before its presentation to the board. Section 12 provides that a candidate not receiving a certificate of election may, for errors apparent on the face of the returns, have the same examined and corrected on certiorari to the circuit court. Held, that a candidate for a state office, such as circuit judge, is not entitled to a recount under the act.

      Certiorari to Wayne; Lillibridge, J.
    Submitted May 2, 1899.
    Decided May 19, 1899.

      Mandamus by James H. Pound to compel the board of canvassers of Wayne county to recount the votes cast for the office of circuit judge. From an order denying the writ, relator brings certiorari.

    Affirmed.

      James H. Pound {Hayes & Lawson and George F. Monaghan, of counsel), for relator.

      John G. Hawley and H. M. Campbell, for respondent.
   Montgomery, J.

The relator was a candidate at the April election for the office of circuit judge. On the face of the returns, he was defeated by a narrow margin of 25 votes. When the board of canvassers convened, relator presented a petition for a recount of the ballots cast at the election, which was refused. After applying to Judge Lillibridge, of the Wayne circuit court, for mandamus, and being refused, he applied to this court for relief.

The question presented is whether a candidate for a state office is entitled to a recount, under Act No. 125 of the Public Acts of 1897. In Vance v. Board of Canvassers of St. Clair Co., 95 Mich. 462, the question was presented whether a recount could be had of votes cast for a candidate for circuit judge. The act then in force was Act No. 208 of the Public Acts of 1887. It was held that the act did not apply to the office of circuit judge, and that the case was not distinguishable, in principle, from a number of earlier cases which had arisen under the same statute. It is true there was wording in that act broad enough in its terms to include the office of circuit judge, but, in view of other provisions of the act, it was held not to apply. Mr. Justice McGrath, speaking for the court, said:

“The theory of the cases cited is that, inasmuch as another tribunal for that review has been provided by law in that class of cases, and the act in question does not in terms qualify the powers granted to such tribunal, or limit the scope of the inquiry to be made by it, jurisdiction is exclusive in such tribunal, and boards of canvasses and the courts are without power in the premises. The very terms of the act itself exclude any inference of its applicability to that class of cases. It limits further inquiry to fraudulent or illegal voting or tampering with the ballot boxes before the recount. It provides that ‘ any candidate not receiving a certificate of election may, for errors apparent on the face of the returns, have the same examined. and corrected upon certiorari to the circuit court of the county.’ * * * No certificate is issued to a state officer or circuit judge, except by the board of state canvassers. The act clearly contemplates that the writ shall run against the board of canvassers who have acted upon the erroneous returns, and not against the board of state canvassers, who do not have before them the returns complained of.”

We find that section 12 of Act No. 125, Pub. Acts 1897, contains the identical provisions as to certiorari found in the act of 1887. There can be no doubt, therefore, that the case is ruled by Vance v. Board of Canvassers of St. Clair Co., supra, unless the act of 1897 clearly evinces a purpose of extending the right to a recount to a candidate for a state office.

It is contended by the relator that such intention is manifested. The act of 1887 provides that “any candidate voted for at any election, conceiving himself aggrieved on account of any fraud or mistake in the canvass of the votes by the inspectors of election or in the returns made, may * * * present a petition,” etc. The act of 1897, in section 10, provides that “any candidate voted for at any election at which state, county, or district officers are voted for, who conceives himself aggrieved on account of any fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by said inspectors, may * * * file a petition,” etc. It is contended that this is a clear expression of intention to allow a recount on petition of any state, county, or district officer. On the other hand, it is contended that that language is not broader than that used in the previous statute.

The act.in question (Act No. 125, Pub. Acts 1897) is amendatory of the act providing for the election of county boards of canvassers. By section 4 of the act the board is authorized to canvass the votes for state officers, county officers, electors for president and vice-president, members of congress (each year when they are elected), state senators, and representatives in the legislature. It will be seen that at certain elections the canvass is of votes cast for state, county, and district officers, and at other elections representatives in congress are also elected. The language of section 10' was evidently designed to make clear the election to which it was intended to apply its provisions, rather than to designate the officer or candidate who might avail himself of the provisions. Literally, a candidate for congress is within the provisions, as he is voted for at an election at which state, county, and district officers are elected. State, county, and district officers are named because at each election at which the election commission is to act these officers, at least, are to be elected, and the naming of these officers designates each election. But as in alternate years representatives in congress are elected, and as the terms of the act include any candidate voted for at such election (at which state, county, and district officers are voted for), a member of congress is as much within the literal designation as the state officers. We think the reference to state, county, or district officers must be construed as intended to designate the election intended, and that the words providing as to who may petition for a recount are as general as under the former act. It follows that the case is ruled by Vance v. Board of Canvassers of St. Clair Co., supra.

Additional evidence that neither this act nor the act of 1887 was intended to apply to state officers is found in the fact' that, by section 11, notice is required to be served on the opposing candidate 13 hours before presenting the petition to the board, or, if the candidate cannot be found, by leaving a copy of the notice at his last place of residence. It can hardly be assumed that it was intended to require the attendance of a candidate for state office at a county distant from his residence on 13 hours’ notice; much less can it be inferred that leaving a notice at his residence 13 hours in advance of a hearing at which his rights would be affected would be deemed adequate by the legislature. We think this provision and the provision relative to review by certiorari indicate that the intention was to limit the general language employed so as to exclude state officers as well as members of congress.

The application will be denied.

The other Justices concurred.