text:
    TROOST v. FELLOWS.
    1. Taxation — Drains — Special Assessment — Drain Commissioner-Review of Findings.
    The decision of a drain commissioner apportioning the benefits of a drain, determining the lands to be assessed and the amount of the special assessment, affirmed on appeal to the probate court by the board of review, is conclusive in the absence of fraud. Act No. 272, Pub. Acts 1899.
    2. Same.

      Held that no fraud was established.
    Appeal from Ottawa; Padgham, J.
    Submitted Januuary 16, 1912.
    (Docket No. 81.)
    Decided March 12, 1912.
    Bill by Paul Troost and others against Edwin Fellows and others for an injunction and other relief. From a decree for defendants, complainants appeal.
    Affirmed.

      Wilkes & Hoffman, for appellants.
    Smedley, Linsey & Lillie, for appellees.

       Procedure for establishment of drains, see note in 60 L. R. A. 161.

   Stone, J.

The complainants are owners of farms in the township of Zeeland, Ottawa county, and they filed their bill of complaint to enjoin the collection of a drain tax assessed against their several farms, making the county drain commissioner, the board of review, and the township treasurer of said township defendants. The defendant drain commissioner laid out a drain in the lower end of what is known as “ Black Creek Valley,” in said township, and assessed for benefits much of the farming lands in the east two-thirds of the township that was a part of the watershed of Black Creek at a uniform rate. Complainants claim that lands in the watershed should not have been assessed, and that lands in Blendon township on the north, and in Jamestown on the east of Zeeland, formed a part of the watershed, and upon the theory of the drain commissioner should have been also assessed.

An appeal was taken to the probate court on behalf of complainants from the assessment made by the drain commissioner, and a board of review was appointed as provided by statute. When the board of review met, complainants were represented by a committee and an attorney, and the claim was made, first, that the lands of the complainants, being high land and draining naturally into Black Creek Yalley, or into Black creek, were not subject to assessment for benefits; second, that, if any high land was to be assessed, it was the duty of the board, under the statute, to include the land in Blendon and Jamestown townships that was a part of the watershed of the said valley. The board of review made such examination, review, and investigation as it deemed necessary, and found said assessment and apportionment to be without manifest error, and declared the same to be just and equitable in every respect.

The complainants then filed their bill of complaint to enjoin the collection of the tax, and to set aside the lien created by the assessment, alleging that the action of the drain commissioner and the board of review was illegal, arbitrary, and fraudulent, and created a cloud on their title. There is no claim in the bill of complaint that the proceeding was illegal or irregular, in so far as the legal forms were concerned, but that said officer improperly included all of the land in the township of Zeeland that constituted a part of the watershed of said drain, and that he did not include any other land in said assessment of benefits, except that he placed 10 per cent, of the cost of the drain on the township of Zeeland at large. Complaint is made that none of the land of complainants is low land, and that none of it is benefited by said drain, but that it is high rolling land, and has sufficient natural drainage. The bill charges that said drain commissioner in making said assessment for benefits acted arbitrarily and fraudulently, and that he arbitrarily and fraudulently refused to add the lands in Blendon and Jamestown, although they were a part of the watershed. It is also charged that the board of review acted fraudulently and arbitrarily, and in collusion with said drain commissioner, and refused to take time to see what lands were benefited by said drain; that said drain commissioner falsely and fraudulently informed said board of review that most of the persons who were assessed for benefits, and whose lands were not in the valley, were not opposed to said assessment for the purpose of persuading said board not to alter the assessment made by said commissioner.

By an amended or supplemental bill, filed in pursuance of a stipulation, it was alleged that, after the filing of the original bill, the amount of the said drain tax assessed against the premises of complainants had been deposited with the township treasurer, to be applied upon such tax in case it should be so ordered by the court upon the hearing of the cause. The said bill prays:

(а) That the order of the said board of review confirming the assessment of said drain commissioner be set aside and held for naught.
(б) That said board of review be directed to meet and review and revise said assessment.
(c) That said board of review be directed to omit the land of complainants from said assessment district.
(d) That said board of review be directed to make a special assessment roll of the lands benefited by the said drain after giving notice therefor.
(e) That said defendants be perpetually enjoined from including in said assessment roll for the construction of said drain any of the lands of complainants, and from collecting any tax spread for said drain against the complainants’ land.

We have sufficiently referred to said bill of complaint to show that complainants claimed that the action of the drain commissioner and of the board of review was arbitrary and fraudulent.

Upon the issue formed by the pleadings, testimony at great length was taken before the trial judge, who filed a written opinion in which he said:

“ I am of the opinion that the complainants by their proofs have not shown that the defendants acted either arbitrarily or fraudulently in the performance of the duties devolving upon them. I am inclined to the opinion that the action of the defendants in the discharge of their several duties under the law was in good faith and in accordance with their best judgment. The bill in the cause should be dismissed with costs, and the injunction heretofore issued herein is dissolved.”

A decree was entered accordingly, and the complainants have appealed.

We have been somewhat at a loss to determine just what the position of complainants is in this court, but we think that the following excerpt from the supplemental brief of their counsel is fair to them:

“ If the drain commissioner had no authority, as a matter of law, to assess the improved farms of the complainants, the fact that he believed he had, and acted in good faith, in our judgment, made no difference with the rights of the complainants. If the drain commissioner could not legally assess the complainants, the fact that he acted in good faith was entirely immaterial and irrelevant. We thought so when the original brief was written, and we still make that contention. So on that branch of the case we were not discussing whether the drain commissioner acted in good faith, or in bad faith, when he assessed the high land, provided we made it clear to the court that he had no authority to make the assessment. We certainly did contend, and now contend, that in leaving out the land in the township of Blendon that was a part of the watershed of this drain the board of review acted in bad faith.”

A careful reading of this record has led us to the conclusion that the circuit judge was right in his finding that no arbitrary or fraudulent action on the part of the defendants, or any of them, was shown.

We are also of the opinion that complainants’ contention that the drain commissioner had no legal right to assess their lands cannot be sustained. In our opinion, it was for the defendants to say, acting in good faith and in the exercise of their judgment, whether or not the lands of the complainants were benefited by the drain. The question as to whether the complainants’ lands were benefited by the construction of the drain to the amount of the assessments, or at all, and whether other assessable lands were omitted from the assessment, this court will not consider, in the absence of fraudulent conduct on the part of the officers. If the facts are as claimed by complainants, they merely establish errors of judgment in the tribunal clothed with authority to pass upon the question of benefits. The legislature had the undoubted power to commit to these statutory officers the ascertainment of the lands to be assessed, as well as the apportionment of benefits, and it is well settled that the decisions of such officers within their jurisdiction are not open to collateral attack, and, if not corrected by some of the modes pointed out by the statute, they are conclusive, in the absence of fraud. Erickson v. Cass County, 11 N. D. 494 (92 N. W. 841). Our statute (Act No. 272, Pub. Acts 1899, chap. 5, §§ 3, 5) provides that the proceedings in establishing any drain shall be subject to review upon certiorari, and the following language is significant:

“ If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity.”
Section 5 prescribes the duty of the board of review, and contains this language: “The action and decision of said board shall be final.”

It may be conceded that equity has jurisdiction to grant relief from the fraudulent conduct of the drain officers, and such a case is Hudlemyer v. Dickinson, 143 Mich. 250 (106 N. W. 885, 108 N. W. 1116). We think that case readily distinguishable from the instant case. Such difference is clearly pointed out in the later case of Hink ley v. Bishopp, 152 Mich. 264 (114 N. W. 678), where this court said, referring to Hudlemyer v. Dickinson, supra:

“ In that case the jurisdiction of chancery to vacate the assessment for fraud in the assessment was sustained, and a new assessment ordered upon the ground of fraud and collusion between the drain commissioner and board of review in making the assessment district, and apportioning the benefits. The fraud was actual and clearly proved, and the decision can be sustained upon the ground that chancery has jurisdiction to set aside a judgment at law, where it has been obtained through fraud. We cannot say from the proofs in this cause that there was fraud in including complainants’ land in the district, or in making the apportionment. It is true that these complainants all testify that they were assessed too much, and some testify that their lands are not benefited by the drain, but, as said in the Hudlemyer Case, we cannot substitute our judgment for that of the officers to whom the determination of such questions has been confided by the law.”

See the following decisions of this court bearing upon this subject: Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22); Township of Swan Creek v. Brown, 130 Mich. 382 (90 N. W. 38); Wilson v. Woolman, 133 Mich. 350 (94 N. W. 1076); Strack v. Miller, 134 Mich. 311 (96 N. W. 452); Horn v. Livingston County Supervisors, 135 Mich. 553 (98 N. W. 256); Crandall v. McElheny, 146 Mich. 191 (109 N. W. 261); Township of Clinton v. Teachout, 150 Mich. 124 (111 N. W. 1052); Jones v. Gable, 150 Mich. 30 (113 N. W. 577); Grandchamp v. McCormick, 150 Mich. 232 (114 N. W. 80).

We are of the opinion that the conclusion reached by the circuit judge was the correct oné, and the decree of the circuit court is affirmed, with costs to the defendants.

Móore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    PEOPLE v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Taxation — Laches—Equity Pleading — Demurrer—Fraud —Estoppel—Limitation of Actions — Railroads.
    On demurrer to a suit in equity by the State for taxes fraudulently withheld by a railroad corporation covering a period of more than 50 years, the questions of estoppel, laches, and statutes of limitation could not properly be determined in advance of the hearing. People v. Railroad Co., 145 Mich. 140 (108 N. W. 772)
    8. Same — Appeal and Error — Special Demurrers.
    As to grounds of the demurrer applying to part of the relief only, the order overruling such demurrer was not appealable.
    3. Same — Equity —Information—Bill of Complaint — Amendment.
    An information filed by the auditor general in behalf of the State to compel the payment of such taxes, containing sufficient averments to constitute a valid bill in equity and having proper parties, may be treated, on appeal from an order overruling a demurrer which presented the point that the cause should be instituted by bill instead of an information, as a proper bill of complaint, to avoid costs and delay incident to an amendment.
    4. Same — Charter—Railroads.
    A railroad company incorporated in 1834 under a special charter that was silent as to taxation, was liable to specific taxation under the provisions of section 5, chap. 21, Rev. Stat. 1846.
    5. Same — Parties—Auditor General.
    Statutes being silent as to the method of collecting such tax, it was permissible to institute suit in the name of the people on the information of the auditor general and attorney general, notwithstanding that the provisions of Act No. 82, Pub. Acts 1855, require payment to be made to the State treasurer.
    6. Same — Adequate Remedy at Law.
    Since section 7, chap. 21, Rev. Stat. 1846, expressly authorizes suit in equity on refusal to pay the tax, part of the tax fraudulently withheld may be recovered in chancery which, independently of the statutory provisions, has concurrent jurisdiction with the law courts.

      Appeal from Kent; McDonald, J.
    Submitted November 6, 1911.
    ( Docket No. 52.)
    Decided March 12, 1912.
    Information by the people of the State of Michigan on the relation of Oramel B. Fuller, auditor general, and Franz C. Kuhn, attorney general, against the Detroit, Grand Haven & Milwaukee Railway Company for an accounting and to collect taxes due and fraudulently withheld. From an order overruling a demurrer to complainant’s information, defendant appeals.
    Affirmed.

      It. O. Stanley (H. Geer and H. B. Martin, of counsel), for appellant.

      Franz G. Kuhn, Attorney General (Boger I. Wykes, of counsel), for appellee.
   Blair, J.

This is a suit commenced in the circuit court for the county of Kent, in chancery, by the people, represented by the auditor general and the attorney general of this State, against the defendant railway company for a discovery and accounting with respect to alleged unpaid taxes by the defendant, extending over the period from the year 1855 up to the commencement of the suit and to foreclose a lien upon defendant’s property for such taxes; and, further, to confirm the action of the auditor general in undertaking to fix the value of the defendant’s capital stock paid in at the time of his action in that regard in the years 1909 and 1910 at a certain amount, and to foreclose a lien upon defendant’s property for unpaid taxes based on such alleged valuation; and, generally, to have it determined that the defendant’s capital stock paid in is greater in amount than the basis on which it pays taxes. The suit was commenced by filing what was therein called an information and petition. The defendant demurred to the information and petition, its demurrer was overruled by the circuit court, and it has duly appealed to this court from the order overruling its demurrer. For the purposes of this appeal, the facts set forth in the information and petition must be taken as true.

The reasons assigned in support of the demurrer are as follows:

“ (1) Chancery Rule 1, subd. a, provides that all suits in chancery shall be commenced by bills of complaint, while the said informants and petitioners have attempted to commence this suit by information and petition. The suit is therefore improperly commenced.
(2) The said information and petition purports to be filed to recover from this defendant certain alleged sums which it is claimed this defendant owes to the State of Michigan on account of taxes. By section 9 of Act 140 of the Session Laws of 1855, which is the contract regulating the taxes payable by this defendant, such taxes are made payable to the State treasurer. Therefore, the said auditor general and attorney general cannot maintain this suit to recover said alleged unpaid taxes.
‘ ‘ (8) The said information and petition alleges that in the years 1909 and 1910 the said auditor general fixed and determined the capital stock paid in of this defendant at the sum of $7,000,000, but this defendant is advised and submits that said auditor general had no legal authority whatever to fix and determine the amount of its capital stock paid in, and that his alleged action in that respect is wholly void and of no effect.
“(4) Under and by virtue of the laws of this State, no lien has attached or could attach to any of the property, road, charter, and franchises of this defendant on account of any alleged unpaid taxes, but the sole remedy which the State of Michigan would have for the recovery thereof would be an action at law. Therefore, this suit cannot be maintained to establish and foreclose any such alleged lien.
“(5) The State of Michigan is estopped from setting up or claiming that this defendant’s capital stock paid in is other than the amount annually reported by this defendant.
“ (6) The State of Michigan has been guilty of such gross laches that it is not entitled to relief in this suit.
“ (7) The State of Michigan is barred by the statute of limitations in such case made and provided from recovering from this defendant any of the alleged unpaid taxes.
“ (8) The State of Michigan has an adequate remedy at law for the relief which is sought in this suit.”

The fifth, sixth, and seventh grounds of demurrer cannot be determined in advance of a hearing. People v. Railroad Co., 145 Mich. 140 (108 N. W. 772).

The third and fourth grounds of demurrer go only to a part of the relief asked, and the order overruling the demurrer as to those grounds is not appealable. Kerr v. Rupp, 144 Mich. 269 (107 N. W. 1059); Case v. Long-year, 168 Mich. 434 (134 N. W. 459).

There remain for our consideration, therefore, the first, second, and eighth grounds of demurrer.

The practice of commencing a suit in chancery, where the State’s interests are involved, by filing an information in the nature of a bill in equity has obtained since the adoption of Chancery Rule 1, subd. a, apparently without objection. People v. Railroad Co., supra; State v. Land Co., 160 Mich. 680 (125 N. W. 770). Section 434, 1 Comp. Laws, provides that:

" When it may be necessary to file a bill or information or to commence any proceedings in chancery on the part or in behalf of the State, the same may at the election of the attorney general be commenced in the circuit court for the county of Ingham, in the equity side thereof, and said court shall have complete jurisdiction and full power and authority in the premises.”

Proceedings to enforce liens under the inheritance tax law are required to be instituted by information. Act No. 155, Pub. Acts 1907. It was not the intention of the rule to change the well-established practice to commence suits by information to protect the interests of the State but, as intimated by the learned annotator, to do away, so far as possible, with the practice of instituting suits in chancery by petition. Furthermore, the information is, except in name and style, a bill of complaint in supplicatory form containing the usual prayer for relief, except that "the said informant prays” instead of "your orator'’ or "complainant.” In view of the fact that the only effect of sustaining the demurrer on this ground would be to make costs and delay, since it is conceded that the information could be amended by the changing of a few technical words and the informants would be the parties complainant, we think it should be treated as a bill of complaint.

The defendant was originally incorporated under the name of the Detroit & Pontiac Railroad Company in 1884 (Vol. 3, Territorial Laws, p. 1287). Its charter was silent as to taxation, and it was therefore held liable to the specific tax imposed by section 5, chap. 21, Rev. Stat. 1846, p. 121. People v. Railroad, 1 Mich. 458.

Said section 5 provides for a yearly tax of f of 1 per cent, on capital stock to be paid “into the State treasury,” etc. Section 6 provides that such tax shall be in lieu of all other taxes. Section 7 provides that:

“If any such incorporated company shall neglect or refuse to pay the tax aforesaid on or before the said first Monday of October, the State treasurer shall immediately furnish the name of every such company so neglecting or refusing to pay such tax to the attorney general, with the amount due from each; and the attorney general shall thereupon file a bill in the court of chancery against every such company, for the discovery and sequestration of its property.”

Section 45 of Act No. 82 of the Session Laws of 1855, providing for the incorporation of railroad companies, approved February 12th and given immediate effect, provides that:

“ Every corporation formed under the provisions of this act shall, on or before the first day of July, pay the State treasurer, an annual tax of one per cent, on the capital stock of said company paid in, which tax shall be in lieu of all other taxes; * * * the said tax shall be estimated upon the last annual report of said corporation, but nothing contained in this section shall apply to any existing corporation.”

Section 9 of Act No. 140 of the Session Laws of 1855, approved February 13th, provides that:

“The said company shall on or before the first day of July pay the State treasurer an annual tax of one per cent, on the capital stock of said company paid in, which tax shall be in lieu of all other taxes, except for penalties imposed upon said company by its act of incorporation, or any other law of this State. The said tax shall be estimated upon the last annual report of said corporation.”

The act is silent as to the method of collecting the tax, as is said Act No. 82. There is no provision that the State treasurer shall enforce collection, nor can any justifiable inference be drawn that such was the intention. On the contrary, considering other statutes in pari materia, the natural inference is that defendant’s taxes were to be collected in the usual manner of collecting such taxes. In our opinion, this matter is not in any wise regulated by defendant’s contract with the State, and the question is therefore ruled against it by Auditor General v. Railroad Co., 82 Mich. 426 (46 N. W. 730).

In considering this ground, we exclude the question whether the State has a lien for its taxes upon defendant’s property.

The bill prays for a discovery and an accounting as to the amount of capital stock paid in for many years and, aside from the claimed lien, the foundation for the relief prayed is the intentional fraud, concealment, and misrepresentation of defendant in making its reports.

Section 7 of chapter 21, above quoted,'expressly authorizes a suit in equity where the company neglects or refuses to pay the tax, and by reasonable inference a suit in equity would lie to recover a part of the tax fraudulently withheld.

We are also of the opinion that, independent of the statute, the chancery courts have concurrent jurisdiction. Blodgett v. Foster, 114 Mich. 688 (72 N. W. 1000, 68 Am. St. Rep. 504); Kimmerle v. Gas Co., 159 Mich. 34 (123 N. W. 565); Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036); Culver v. Avery, 161 Mich. 322 (126 N. W. 439).

The order is affirmed, with leave to defendant to answer in accordance with the rules and practice of the court and the statute in such case made and provided.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Moore, C. J.

text:
    DYE v. EAST SHORE WOODENWARE CO.
    1. Deeds — Logs and Logging — Injunction against Removing Timber —  ‘ Revert. ”
    Under a conveyance to defendant of all timber on certain land, to be removed before a date specified, after which all timber, whether cut or uncut, remaining thereon, should revert to complainant, logs cut and skidded, remaining on the land at the date named, became complainant’s property.

    8. Injunction — Sales—Forfeiture.
    Equity has jurisdiction to prevent defendant from removing the timber which, by the terms of the deed of conveyance, reverted to the owner after the day stated, the suit not requiring the declaration of a forfeiture.
    Appeal from Wexford; Lamb, J.
    Submitted January 16, 1912.
    (Docket No. 71.)
    Decided March 12, 1912.
    Bill by Rosetta Dye against the East Shore Wooden-ware Company for an injunction against a proposed trespass. From a decree for complainant, defendant appeals.
    Affirmed.

      Gaffney & Miltner, for complainant.

      D. G. F. Warner, for defendant.

       As to when timber must be removed on conveyance of title to timber without title to land, see note in 55 L. R. A. 513.
      Rights and remedies of landowner and owner of timber after expiration of time stipulated for removal of same, see note in 39 L. R. A. 547.

   Moore, C. J.

This is an injunction bill. From a decree in favor of the complainant, the case is brought here by appeal.

The material parts of the decree are as follows:

“ (1) That upon the 28th day of November, 1906, the complainant was the owner in fee of the southeast quarter of the southeast quarter of section 10, in town 22 north of range 12 west, and upon this date she conveyed by deed to the defendant all the timber on the land above described, which conveyance contained the following clause: £ All timber, whether cut or uncut, remaining on said land after said date, shall revert to said first party, her heirs and assigns.’
(2) That after the said 28th day of November, 1909, and at the time of the filing of this bill, there remained upon said land 100,000 feet of logs cut therefrom which were of the value of $500, and which the defendant intended to remove therefrom, to prevent which the bill in this case was filed.
“ (3) That the title in and to said timber upon and after the 28th day of November, 1909, reverted to and became vested in the complainant, and the defendant had no title thereto nor no right to remove said timber from said land.
“ (4) That upon the 25th day of February, 1910, it was stipulated and agreed by and between said parties that the temporary injunction issued in said cause be and the same was dissolved, and upon the same date the said defendant filed a bond in said cause, wherein D. G. F. Warner and J. F. Hofstetter, of Frankfort, Mich., were sureties, in which it was provided that the said defendant be permitted to enter upon said land and remove therefrom the logs and timber cut thereon without hindrance, and that said suit be prosecuted to a final determination, and the court determine the amount of the value of said timber, and, if the court should find that the property belonged to the complainant at the time of the commencement of said suit, then judgment against the East Shore Woodenware Company was to be rendered, and that if judgment was rendered in favor of said complainant, and against said defendant, then judgment was also to be entered against the sureties in said bond, as well as against said defendant, and that said sureties and each and everyone thereof was to be held jointly and severally liable for said judgment and the payment thereof.
“ (5) It is, therefore, further ordered, adjudged, and decreed that the said defendant, the East Shore Wooden-ware Company, be, and it is hereby, perpetually enjoined from entering upon the southeast quarter of the southeast quarter of section 10, in town 22 north of range 12 west, and from cutting or in any manner interfering with said land or the timber standing, lying, and growing thereon.
“ (6) It is further ordered, adjudged, and decreed that the said defendant, the East Shore Wooden ware Company, D. G. F. Warner, and J. F. Hofstetter pay to the said complainant the sum of $500, with interest at rate of 5 per cent, per annum from the 10th day of February, 1910, together with costs to be taxed in said cause, and that complainant have execution therefor.”

Defendant claims (we quote from the brief):

“ (1) That it bought by warranty deed, absolute and forever, all the merchantable timber on the described tract of land.
“ (2) That the limitation as to time for removing the same was a license to go upon said land for and during said period; that if defendant went upon said land after said time he was liable in damages.
“ (3) That the timber was all removed prior to the 28th day of November, 1909, by being cut and skidded.
“ (1) That the reversionary clause, if anything, is a clause of forfeiture; if a covenant, it is a condition subsequent, and cannot be enforced in a court of equity.”

Each of these propositions is argued at length. The first three propositions may be considered together. We think the case is on all fours with the case of Gamble v. Gates, 92 Mich. 510 (52 N. W. 941), where Justice Long, speaking for the court, said: '

“The plain intent of the agreement was that, even if the conditions and agreements had otherwise been performed, all timber remaining upon said lands at the expiration of the time limited, whether cut or uncut, should revert and become the property of Gamble. The word ‘revert’ has some significance. The use of it clearly shows that, if the title had passed to Gates by the fulfillment of the contract, still all the timber left and remaining upon the lands at the end of five years should revert, and pass back to Gamble.”

See, also, Hodges v. Buell, 134 Mich. 162 (95 N. W. 1078).

Has the court of equity jurisdiction ? Equity is invoked in this instance, not to declare a forfeiture as stated by appellant, but to prevent a removal of property belonging to the complainant. See Watrous v. Allen, 57 Mich. 362 (24 N. W. 104, 58 Am. Rep. 363).

The decree is affirmed, with costs.

Steere, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    LAMBRECHT v. STOEPEL REALTY CO.
    1. Brokers — Commissions—Evidence.
    In a case involving plaintiff’s right to recover real estate commissions, where one of the plaintiffs was asked if at any time an arrangement was made with defendant that they should receive less if they performed a part of the contract than if they performed the entire agreement, and after witness had answered, an objection was interposed by defendant and sustained, but, no motion being made to strike out the answer, it remained in evidence, prejudicial error did not appear.
    2. Same — Implied Contract — Value.
    And where brokers had an express agreement for compensation, it was not error to reject testimony as to the value of certain services performed in building on defendant’s property, and included by the terms of the express contract.

      Error to Wayne; Murfin, J.
    Submitted January 11, 1912.
    (Docket No. 44.)
    Decided March 12, 1912.
    Assumpsit by Richard G. Lambrecht and others against the Stoepel Realty Company for commissions. Judgment for defendant. Plaintiffs bring error.
    Affirmed.

      U. Grant Race and Walter 8. Haas, for appellants.

      Charles K. Latham, for appellee.
   Moore, C. J.

The plaintiffs made sales of real estate for defendant. Upon some of the lots plaintiff had constructed buildings. The real estate was sold upon land contracts. Plaintiff made collections upon some of these contracts. This suit was brought to recover the balance of commissions plaintiffs claim were due to them.

The questions involved . are stated in the appellants’ brief as follows:

“The aggregate amount of the sales on contracts was $31,200, of which amount the plaintiffs had collected $7,999.02, leaving a balance of $24,100.98. The bill of particulars shows the plaintiffs to have received and collected $2,154.95. Right here was the only question on which the parties differ. The plaintiffs claim the contract provided for an entire commission of 10 per cent, based on the selling prices. The defendant denied this, claiming that the commission was divisible — 5 per cent, for selling and 5 per cent, for collecting the contracts, looking after the property, etc. If plaintiffs’ contention was correct, then the plaintiffs’ entire commission was $3,120, leaving a balance of $965.05 due and unpaid. If the defendant’s claim was correct, then the plaintiffs were entitled to 5 percent, of $31,200, or $1,560, plus 5 per cent, of $7,999.02, the amount collected, or $399.95, or a total of $1,959.95, so that under the defendant’s theory the plaintiffs had been overpaid $195. This issue of fact was clearly defined in the pleadings. The plaintiffs declared specially on the contract and also on a quantum meruit. The defendant pleaded the general issue with notice that the contract provided for 5 per cent, commission for selling and 5 per cent, for collecting.”

The first assignment of error relates to the ruling of the court during the examination of Mr. Lambrecht. The record shows as follows:

“Q. Was it ever stated to you at any time that a division of this contract should be made ? That, if you performed only a portion of the contract you were to receive less than the whole price therein stated ?
“A. No.
“Mr. Latham: I object to the question.
The Court: I sustain the objection. (Plaintiffs except.)”

This ruling is said to be error. It will be observed that the question was answered. No motion was made to strike out the answer, and it still remained for the consideration of the jury. The record also shows that Mr. Lambrecht testified in detail as to the contract which was made. We do not think what occurred was reversible error.

Complaint is made because the witness was not allowed to testify as to the usual price real estate people obtained for building on account of a client, and because an objection was sustained to the following question put to Mr. Stoepel:

“Do you know whether plaintiffs spent any money to advertise your property ? ”

Counsel say as to these questions:

" The existence of an express contract being admitted, the only thing in dispute was, What was the commission provided for in the contract ? The value of the services rendered was admissible as tending to show whether the contention of the plaintiffs or defendant was the more probable, or, in other words, to show what was the contract the parties actually made.”

One trouble with this contention is that the arrangement about putting up the buildings was made after the express contract was made, and the parties are all agreed that the buildings were to be erected at cost by the plaintiffs who were building contractors as well as dealers in real estate. Counsel also say:

“ The plaintiffs had the right (1) to join a special count on contract with the quantum meruit, and, having so declared, they had the right, under the quantum meruit, to show the value of their services, and (2) elect on which count they would proceed.”

An answer to this argument is, the plaintiffs made no such election. It was their claim in the court below, as it is here, that there was an express contract. Both parties were agreed as to that, but they were not agreed as to its terms. That question was left to the jury under a fair charge, and the jury found against the contention of the plaintiffs.

Judgment is affirmed.

Steers, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Moobe, C. J.

text:
    LORANGER v. JAGEMAN.
    Trial — Conduct op Court — Impartiality op Judge — Bias.
    Where comments of the trial judge, made before the jury, tended to show the court’s want of belief in statements of a witness for the defense, defendant was denied a fair trial, and a judgment for plaintiff is reversed.
    Error to Wayne; Donovan,' J.
    Submitted January 17, 1912.
    (Docket No. 102.)
    Decided March 12, 1912.
    Trover by Joseph Loranger against Elorenz J. Jageman for the conversion of a certificate of corporate stock. Judgment for plaintiff. Defendant brings error.
    Reversed.

      B. J. Lincoln, for appellant.

      Charles E. Duffy, for appellee.
   Moobe, C. J.

This ease is an action in trover for the conversion of one certificate representing 100 shares of the stock of the Star Varnish Works, a corporation, of the face value of $1,000. The case was tried before a jury in the Wayne circuit eourt, and plaintiff had verdict and judgment in the sum of $1,095.83. The case is in this court by writ of error.

There are many assignments of error. We think it unnecessary to discuss many of them. The trial judge evidently reached the impression early in the case that plaintiff had a meritorious case, and that the defense which was interposed was without merit. This impression apparently remained with him all through the trial and affected his charge to the jury. His attitude is indicated by the following extract from the record. Mr. Jageman was under examination as a witness:

“Q. I ask you again, Mr. Jageman, what in your opinion as the general manager of that company, and being familiar with the business, what the fair reasonable value of the fixtures on hand May 17th was? (Objected to; lack of foundation.)
The Court: We have got him on record one way; let him go on the other.
“A. On that day I should judge it would be worth about $2,000.
“Q. On that same day, in your opinion, what was the value of the real estate ? (Objected to for the same reason.)
The Court: He is on record one way; let him go on the other, if he wants to,
“Mr. Lincoln: Note an exception.
“A. I should think about $4,000.
“Q. I will ask you what, in your opinion, was the value of the outstanding accounts due the company from your examination of the books ?
“A. I should judge they were about $5,800 at that time. The liabilities of the company on May 17, 1909, were as follows: Due on land contract, about $330; due to banks, $400; and due to merchandise on one account, about $950 — that is, on one account, $1,550.
“Q. What were the total net assets as you have just stated ? (Objected to.)
“A. I am not giving it exact, but to be about $16,000.
The Court: Since January 1st last, three months or more, you have dropped down from $40,870 to $16,000; that is a little more than a third. Have you had any big fire ?
“A. No, sir.
The Court: You have dropped down to that ?
“A. Yes, sir.
“The Court: Do you want me to leave a case to the jury where you vary as much as that ?
“Mr. Lincoln: I would like to have an exception.
“The Court: I would like to put him on record in the State of Michigan. I think he should be put upon record, a man who will vary like that; you may take it up, but we have to have a little regard for the truth.
“Mr. Lincoln: I have an exception to that.
“The Court: Yes; take it up on that. Get to the end of the case; that is all I ask of you.”

We cannot escape the conclusion that the questions of fact were not allowed to go to the jury free from the opinion of the trial judge in relation to them, and that defendant did not have a fair and impartial trial. It is not necessary to discuss the other assignments of error, for the reason that upon a new trial they are not likely to again arise.

Judgment is reversed, and a new trial ordered.

Steers, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Steere, J.

text:
    PEOPLE v. HOEK.
    1. Criminal Law — Disorderly House — Landlord as Keeper-Information — Duplicity.
    Respondent, as landlord of a disorderly house, was properly convicted of maintaining a house of ill-fame under 3 Comp. Laws, § 11697, instead of being convicted of a violation of section 11699, prohibiting persons from knowingly leasing a dwelling house for such purposes, under testimony tending to show that he kept a key of the building, had the right of entry and managed and cared for the premises whioh he let as separate rooms to disorderly persons, and that he sent customers to the tenants who committed lewd and improper acts.
    2. Same — Information—Joinder of Offenses.
    It would be permissible to join both offenses in one proceeding if the facts tended to show violations of the two sections.
    3. Same — Landlord and Tenant — Statutes.
    A landlord who occupies no part of a house, keeps no key, does not reserve right of entry or take part in the unlawful management and control of premises, cannot be convicted of keeping a bawdy-house therein.
    4. Same.
    But if he aided and abetted, countenanced or advised others in the management of a house of ill-fame, he was equally guilty and could be tried as a principal.
    5. Trial — Prosecuting Attorney — Conduct of Counsel — Appeal and Error.
    Comments of the prosecuting attorney to witnesses and to the court during the progress of the trial, while objectionable, were not of such a prejudicial character as to require the reversal of the conviction, where the trial court intervened upon occasions that required it and ruled that the remarks were improper.
    6. Same — Requests to Charge.
    It is not error to refuse specific requests if the charge as given brings out the same point clearly and definitely.
    Error to the superior court of Grand Rapids; Stuart, J.

      Submitted January 18, 1912.
    (Docket No. 152.)
    Decided March 12, 1912.
    Paul Hoek was convicted of keeping a house of ill-fame.
    Affirmed.

      Richard L. Newnham, for appellant.

      Franz O. Kuhn, Attorney General, and William, B. Brown, Prosecuting Attorney, for the people.
   Steere, J.

The respondent was convicted, in the superior court of the city of Grand Rapids, of keeping a disorderly house at No. 105 Commerce street in said city on divers days between April 26,1909, and March 1,1910, in violation of section 11697, 3 Comp. Laws.

The testimony is undisputed that respondent had charge of the premises in question, and was known as the proprietor. There were 12 rooms in the building, and he rented them to various occupants. He resided elsewhere with his family. He carried a key to this building, and looked after it and conducted its affairs, managing it in a general supervisory way. He hired the help, which did the hall and room work, and had general control. He testifies:

“ I had charge and supervision at that time, and I hired and paid the girls that cleaned the halls and took care of the building, and I went there every day and saw the building and paid the rent for the building, and had entire charge of the building just as though my wife and family lived there.”

The prosecution introduced testimony of various witnesses tending to show that the place bore a bad reputation, being known as a house of ill-fame; that various women resided there who were prostitutes; and that persons of bad character and loose morals resorted there for purposes of prostitution and lewdness. There was direct and positive testimony as to the reputation of the house and conduct of its inmates, not only by witnesses who had personal knowledge and experience with what was being done inside the building, but others who, through necessity, learned on the outside its reputation and something of the conduct of its inmates. Contractors, erecting buildings in the neighborhood, testified that they were annoyed by things which transpired there; that it bore the reputation of being a sporting house, and the women residing there communicated with, and attracted the attention of, men working in the neighborhood. There was also direct testimony as to acts of prostitution and lewdness in the building.

William Schroeder, who was in charge of contract work, erecting a building across the street from these premises, testifies:

“ I knew what was going on upstairs in the two top stories over the store. * * * We had 20 or 30 carpenters working sometimes. The general reputation of Paul Hoek’s, 105 Commerce street, was that it was a sporting house. There were girls over there that would open the windows and stick their heads out and annoy my men; they were in the top story, facing the south. I noticed that conduct going on between two and three months.”

While respondent and his witnesses testify to the good reputation of the place and its inmates and no knowledge of any acts of impropriety committed there, it is not seriously contended by the defense that the question of whether it was a house of ill-fame, resorted to for purposes of prostitution and lewdness, was not a proper question for a jury; but it is urged that respondent is not shown to have been personally connected with, or responsible for, those things; he only renting rooms in the building to tenants from whom he received nothing by way of profit, except reasonable rent for the rooms. And it is urged that, should he be found to have had knowledge of, and permitted, the immoral conduct claimed, if guilty at all, he can only be convicted of letting or renting a dwelling house, knowing it was used as a house of ill-fame; that therefore he should have been prosecuted, if at all, under section 11699, 3 Comp. Laws, instead of section 11697; that the two statutes, taken together, clearly show it was the purpose of the lawmaking power to only punish persons who rented premises or buildings to another for unlawful purposes as a landlord, and not as a keeper, and respondent should have been placed on trial, if at all, only for the lesser offense.

There are 27 allegations of error, many of them directed to objections taken on the trial to the form and nature of questions asked and the conduct of the prosecuting attorney, and other matters claimed to be prejudicial to a fair trial; but those most seriously urged and worthy of consideration condense themselves to two propositions: The status of the respondent, under this charge, of being a keeper, instead of a landlord, and prejudicial remarks of the prosecuting attorney in examining witnesses and summing up the case to the jury.

The two sections to which attention is called involve the same offense against chastity, morality, and decency. To convict in either,’ it must be proven that a brothel is maintained at the place and during the time charged; the distinction and grade of offense depending on the relation the accused bears to it.

Section 11699 is directed against “ any person who shall let any dwelling house knowing the lessee intends to use it as a house of ill-fame,” etc., or shall receive rent for the same or knowingly permit it to be used for such purpose. Section 11697, under which respondent was convicted, is directed against and involves ‘ ‘ every person who shall keep a house of ill-fame,” etc. It can readily be conceived how a person might rent a house for such purpose, and then assist, aid, and abet the lessee in keeping and conducting the place for the unlawful purpose forbidden by both sections, thus at the same time being guilty of both offenses. Under the same state of facts tending to prove violation of both sections, it would be permissible to proceed against the alleged offender under either; and it has been held in a similar case that an indictment charging both offenses is not bad for duplicity.

Where two sections of a statute enacted at the same time separately provide punishment for keeping a house of ill-fame, one for “keeping a bawdy-house,” and the other for “keeping, and maintaining a nuisance,” the offender can be proceeded against for either, or jointly charged with both. Commonwealth v. Ballou, 124 Mass. 26.

It is unquestionably true that a person who knowingly rents premises for such immoral purposes to others, and surrenders possession and control to them, taking no part in the maintenance and conduct of the place, cannot be convicted as a keeper, no matter how familiar such person might be with the fact that it was maintained as a disorderly house. A landlord who occupies no part of a house, nor keeps the key, nor reserves to himself any right of entry, and takes no part in the management and control, cannot be convicted of ‘ * keeping a bawdy-house. ” Regina v. Stannard, 9 Cox, Crim. Cases, 405.

But the testimony goes much further in this case. Although respondent sublet rooms in the building to tenants, he kept a key to the building, reserved to himself the right of entry, managed, controlled, and cared for the premises. He “had entire charge of the building just as though my wife and family lived there.” An inmate, who testified that she was “sporting” and “hustling, making money for myself,” and “ everybody there was doing the same thing,” also gave evidence that respondent knew what she was doing, “ because he Sent me men over there. ” Without further referring to the testimony in detail, we think there was abundant evidence along these lines, direct and indirect, tending to show that defendant actively participated and assisted in running this establishment as a place trafficking in licentiousness, to justify the court in.submitting to the jury the question of his guilt, either as a keeper, or as one aiding and assisting the individual keepers of the various rooms where the immoral business was carried on and stamped the place with its offensive characteristics.

If respondent aided and abetted, countenanced and advised, others in the management and control of this house as a house of ill-fame, he would be equally guilty with them. Persons who assist, aid, and abet others in the commission of crime are equally guilty, and may be tried as principals. People v. Sligh, 48 Mich. 54 (11 N. W. 782); People v. Wright, 90 Mich. 362 (51 N. W. 517); Commonwealth v. Gannett, 1 Allen (Mass.), 7 (79 Am. Dec. 693).

There are numerous assignments of error, based on alleged prejudicial conduct of the prosecuting attorney, which it is claimed prevented a fair trial. Several of them are entirely without basis according to the record.

It is claimed that unfair and insinuating questions were asked witnesses, and unsupported and intemperate comments made. The case was tried with some acerbity on both sides, and numerous objections, interruptions, and arguments intervened all through the progress of the trial. The evidence was extremely conflicting on matters where it is manifest certain witnesses on one side or the other knowingly testified falsely. In such cases, the manner of examining witnesses and general conduct of the trial must necessarily be left to the discretion of the trial judge. We think in this case the court did not abuse this discretion.

While arguing to the court objections made to certain of his questions, the prosecuting attorney, on two occasions, made the following remarks, which are particularly urged as so prejudicial to a fair trial as to call for reversal :

“Here are these witnesses. I am simply trying to show what we are contending with. Now, here is a girl that says she never saw a dishonest act or an immoral act. Now, the very deportment of the girl, how she is conducting herself, if the jury could see it as to how it should be understood — ” Here counsel for the defense, interposed, ‘ ‘ I take exception to this harangue of the prosecuting attorney.”

At the conclusion of an animated discussion between counsel, the court ruled, “I do not think that would he proper,” and the incident closed. In arguing a later objection, the prosecuting attorney said:

“lam talking to the court now, and I want to make this suggestion, your honor, that in 17 years of presenting this kind of cases to the court I have never yet seen a case where the proprietor came into the room and held a light, so he could be present. These girls there, and their appearance and their suggestions, is what constitutes prostitution.”

To which remarks exceptions were taken, and after argument the court said: “I think it is irrelevant.” We do not think that such remarks, made in the heat of trial, in the midst of a series of objections, though, perhaps, indiscreet and improper, when ruled upon adversely by the court, could so seriously affect the course of the trial as to amount to reversible error.

On cross-examination of the defendant, touching a license being refused him by the city council, in reply to the question whether there was more than one reason, he said, “ I don’t think I will have any trouble, Mr. B., getting my license after today.” To this the prosecuting attorney replied: “ No; I don’t think you will have any chance.” Objection was made and exception taken to this remark, and the court at once ruled that it was objee- ■ tionable. The witness’ irresponsive answer, volunteering the opinion that he was about to be acquitted, naturally suggested the retaliatory retort. It was improper and objectionable, and the court so ruled. We think that the ruling cured any prejudicial effect which might be inferred from such ill-advised exchange of views between witness and counsel.

Error is assigned on the refusal of the court to give certain of respondent’s numerous requests to charge. The charge as a whole is very clear and complete. We think it covers the essential propositions contained in the requests refused. Complaint is made of failure to give the following portion of respondent’s fifteenth request:

" So that I charge you that, unless you find, beyond a reasonable doubt, that said house was offensive in this regard in the vicinity in which it is situated, then you cannot convict the respondent, and your verdict should be: Not guilty.”

An examination of the charge shows that the court very fully and emphatically instructed the jury on the necessity of proving all material facts beyond any reasonable doubt, before conviction could be had; and in another portion of the charge, where the court was explaining the significance of “reputation,” he twice told them, among other things, that it meant “in the vicinity.” It is not error to refuse specific requests, if the charge as given brings out the same point clearly and definitely. People v. Sligh, 48 Mich. 58 (11 N. W. 782), and many other familiar cases too numerous to mention.

A review of the record in this case as a whole leads to the conclusion that the court preserved to respondent all his legal rights during the progress of the trial, and fully and very fairly instructed the jury as to their duty in passing upon the testimony submitted to them.

We find no reversible error, and the conviction is affirmed.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    PADDOCK v. HATCH.
    1. Sales — Delivery—Contracts—Receipts—Evidence—Statute of Frauds — Conolusiveness of Receipt.
    A receipt for part of the purchase price of a printing press, given several days after a sale and delivery of the machinery, for which the consideration was $500, was not conclusive of the statement in the receipt that the press was to be satisfactory to the buyer, under testimony of the seller that he signed the receipt without reading it, that thé contract of sale was absolute and that the purchaser made a complete examination before accepting the offer.
    - 2. Same — Trial—Instructions.
    The court correctly submitted to the jury the question of the weight to be given to the receipt which the purchaser claimed he read over to the seller before it was signed.
    3. Same — Statute of Frauds — Delivery.
    Under the provisions of the statute of frauds, the oontract became valid when the press was delivered; and the receipt was not the only competent evidence of the terms governing the sale.
    4. Same — Fraud—Warranty of Condition.
    Where the court charged the jury that if they found in favor defendant’s contention that plaintiff made fraudulent representations as to the condition of the press, and the buyer promptly notified plaintiff that it was unsatisfactory, plaintiff could not recover, and further charged that the fact that defendant retained the press in his possession was not conclusive of his acceptance if he gav§ proper notice, the defendant, who stated in his testimony that he did not rely much on the representations but made an independent examination of the press before he bought, it was not prejudiced.
    Error to Washtenaw; Kinne, J.
    Submitted January 19, 1912.
    (Docket No. 75.)
    Decided March 12, 1912.
    Assumpsit by Harold Paddock against William B. Hatch for the purchase price of goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Bernard B. Selling and Frederick G. Gillette, for appellant.

      Stevens, Graham & Stevens (Blum & Sample, of counsel), for appellee.
   Steere, J.

This is an action in assumpsit, brought to recover a balance claimed due on the purchase price of a second-hand Campbell printing press sold by plaintiff to defendant at Ypsilanti, Mich., on November 19,1908, for the sum of $500.

The case was tried in the circuit court of Washtenaw county by a jury, and a verdict rendered in favor of plaintiff for $445. From a judgment rendered on such verdict, defendant has removed the proceeding to this court by writ of error.

It is undisputed that a sale and purchase of the printing press was negotiated between the parties, by virtue of which defendant took the press into his possession and removed it to his printing office, shortly thereafter paying plaintiff $75 to apply on the same.

It is the claim of defendant that the sale was a conditional or provisional one; that he bought the press tentatively, on approval, led thereto by representations of plaintiff as to its condition and ability to do certain specified work, which proved to be untrue; that he took the property into his possession to try it, with the understanding and agreement that he should keep it and pay $500 for it, provided it proved satisfactory to him. He claims that after trial, and within a reasonable time, he notified plaintiff that it could not do the work as represented, did not prove satisfactory, and that he would not accept it, demanding a return of the $75 he had paid.

It is the claim of plaintiff that the sale was unconditional; that defendant bought the property as it stood “on the floor,” after he and his employés had examined it, and after a reduction in the price first asked had been made in order to close the deal; that the $75 was paid a few days later by defendant, just as plaintiff was about to leave the city, when he called upon defendant, expecting to collect the entire purchase price, but could only obtain the partial payment; defendant promising to send the balance in a few days.

It appears that plaintiff, who was a minor at the time, entered into partnership with two other young men at Ypsilanti, in the fall of 1907, to engage in the publication of a monthly called the “Student World.” The press in question was purchased by them at Akron, Ohio, where it had been in previous use, and moved to Ypsilanti for printing this magazine. The publication had an ephemeral life, running from December, 1907, to May, 1908; but four numbers being issued. In the wind-up of its affairs, the assets, including this press, were turned over to the plaintiff to liquidate the business.

Defendant was interested in two papers published in Ypsilanti, and was president and manager of a company publishing the Ypsilanti Daily Press. In the fall of 1908, plaintiff, assisted by Mr. Howard, one of his former partners, succeeded in interesting defendant in the purchase of plaintiff’s press. During the negotiations plaintiff represented that this press would do two-color work and register accurately; that it was in good condition, its parts not worn, though second-hand; that it would do work better and more rapidly than the one defendant was then using. Defendant, after looking at plaintiff’s press, took his assistant manager and pressman to examine it. Finally a price of $500 was reached between the parties and the machine moved to the office of the Ypsilanti Daily Press, where it was later set up and used for some time. Just what the contract was is a matter in dispute between the parties, as heretofore stated, and an issue of fact.

The press was moved about November 19, 1908. On November 30th plaintiff, who was about to leave Ypsilanti for his former home in Cleveland, called on defendant to collect payment for the press, and was paid $75, giving the following receipt therefor, which was drawn up by defendant:

“ Ypsilanti, Mich., Nov. 30, 1908.
“Received of William B. Hatch check for $75.00 to apply on purchase price of $500 of Campbell cylinder press providing same proves satisfactory.
“ H. Paddock.
“H. Paddock,
“'4417 Carnegie Ave.,
“Cleveland, O.”

The press had then been moved, but not yet installed ready for operation.

The circumstances of this payment are in dispute. It is the claim of plaintiff that, following the sale of his press, he closed out his business and prepared to leave Ypsilanti to return to his former home at Cleveland, Ohio. After completing all arrangements he called at the office of defendant, on November 30, 1908, expecting to get $500 in full payment for the press; that defendant pleaded lack of funds on hand, unusual expenses, and other matters which rendered it impossible for him to make full payment at that time, and finally paid the $75, promising to send the balance in a few days; that plaintiff, expecting to leave that day, was in a hurry to get his goods shipped from Detroit to Cleveland, and finally took the $75, hastily signing the receipt which defendant had prepared without reading it or being informed of its contents, beyond the fact that it was a receipt for $75; that he hurried away in order to take the train, and had no knowledge at that time of any provision in the receipt relating to the press proving satisfactory; that the balance of the money, $425, was not sent to him in a few days as promised, and has never been paid.

It is defendant’s contention that on the day in question, before the press was installed, plaintiff came to him stating that he was moving his goods to Cleveland; could take them at a lower rate on the steamboat line, if he could get some money to pay freight. He was anxious to do so and get away, and importuned defendant to pay him some money on the press; that defendant demurred, claiming the press had not been installed and tested, and he had no knowledge whether it would ever prove satisfactory or not; that he had been to considerable expense already in connection with it, and he did not wish to make payment for it until it was accepted, after being tested according to the terms of the contract; that on being importuned by plaintiff, who suggested that the press was security for at least $75 anyway, he finally paid him that amount, taking the receipt which was offered in evidence, of the contents of which plaintiff had full knowledge; it having been read to him before he signed it.

In the early part of December, 1908, defendant wrote plaintiff advising him that the press, after trial, proved deficient, was not as represented, and would not do the work plaintiff had claimed, and made a proposition to settle the matter for $250. This letter was not produced; but in a subsequent letter defendant wrote:

“As I wrote you before, the only reason I had for making such a proposition as to $250 even, is because I felt you might prefer such a proposition and I would undertake with experts available at Detroit and the Scharf Tag Press here to get through the winter somehow with this press and then give my attention to something else on my return in the spring.”

The offer was not accepted. Various letters were written and the claim eventually placed in the hands of attorneys.

It is the claim of the defendant that the machine was old, worn, and practically worthless. On the trial much testimony was introduced as to its condition and value. After having the machine overhauled and repaired in December, defendant’s company used it until the following September, doing on it all the work of publishing a daily and weekly paper, when a new, improved press was purchased to take its place. Press work on the daily paper, when done for a short time by others while this machine purchased from plaintiff was being installed, cost $4.50 per day.

Several of defendant’s assignments of error are based on a refusal of the court to give requests predicated on the assumption that the receipt of November 30th, signed by plaintiff, is conclusive, and to be interpreted by the court as evidencing the only contract between the parties.

The case of Price v. Marthen, 122 Mich. 655 (81 N. W. 551), upon which defendant relies in this contention, is distinguishable from the present casein the particular that the writing there sought to be disputed was a contract in duplicate, signed by both parties, setting forth the agreement in detail. The defense claimed that it was obtained by fraud and false representations while defendant was intoxicated, and that the machine was not as represented. The court said:

“The defendant had ample opportunity to read it. * * * He knew that it was to be sent by the agent to the plaintiffs, to be acted upon by them. It contained definite promises of payment, and provided for an absolute sale. It was unambiguous. There was nothing in it about commissions. The law does not protect one against his own folly. The case is clearly within the rule of law that written contracts cannot be varied by evidence of prior or contemporaneous parol agreements.”

This does not conflict with the general rule that a receipt is not necessarily conclusive, but may be explained or contradicted.

It is the testimony of defendant that a conditional sale of the property was made before or at the time it was moved. He testifies:

“I consequently arranged with him to move the press and set it up on our floor, and if it proved what it was represented we were to pay him $500 for it.”

His testimony does not show a new contract made when the receipt was given. He says:

“I finally gave him $75. I told him I wouldn’t do it, unless he sign a receipt showing the conditional sale.”

The most that can be claimed for the receipt is that it furnishes written acknowledgment, signed by plaintiff, of the previous contract, as defendant claims. It has been more than once held by this court that similar receipts may be contradicted or explained.

The court correctly left the weight and import of the receipt to the jury as a question of fact, under the conflicting testimony touching the circumstances surrounding its signing. Hammond v. Hannin, 21 Mich. 374 (4 Am. Rep. 490); McAllister v. Engle, 52 Mich. 56 (17 N. W. 694); Hart v. Gould, 62 Mich. 262 (28 N. W. 831); French v. Newberry, 124 Mich. 147 (82 N. W. 840); Bidwell v. Railway Co., 148 Mich. 524 (112 N. W. 122).

It is the contention of defendant that, under the statute of frauds, there could be no valid contract until November 30th, when the $75 was paid; the value of the property being in excess of $50, and there being no memorandum in writing. Counsel for defendant say in their brief:

“At the time that plaintiff claims an actual and unconditional bargain was made to pay $500 as a purchase price, there was neither part payment nor delivery or acceptance, nor any contract in writing. At that time the alleged contract was not valid. When did it acquire validity ? ”

Plaintiff testified that the conversation by which the arrangement was made took place about the 18th of November, and “Mr. Hatch undertook to remove the printing press almost immediately, within a day.” The contract would, if made as claimed by plaintiff, acquire validity on delivery.

The claim also is made—

“That the transaction was induced by material representations, fraudulently made, to induce defendant to enter into the transaction, and that he relied upon the same.”

Error is assigned on the refusal of the court to give several of defendant’s requests presenting that proposition in various forms. On that subject the court gave the following instruction based on defendant’s theory of a conditional contract:

“Now, if from the evidence in this case you find that the claim and contention of the defendant is proved and established that these representations or any of them were false and untrue, and that the press was unsatisfactory to the defendant, and that he promptly notified the plaintiff of such fact, then there can be no recovery in this case, and your verdict should be for the defendant, no cause of action.”

Referring to the ‘fact that defendant allowed the press to remain in his possession and used it, the court said:

“ That would not in itself necessarily create an acceptance on the part of the defendant, provided that he promptly notified the plaintiff that the press was unsatisfactory, and that it failed to answer the conditions of the sale. Notice that it was unsatisfactory would be sufficient in this case, especially in view of the nature and character of the press, and that its redelivery was impracticable.”

Counsel for defendant urge that he—

“Was entitled to have the issues of false representations and conditional purchase submitted separately to the jury, and the judge, in our opinion, should not, even if there were a case for the jury, have coupled the two defenses, making the proving of each essential to the success of defendant’s defense.”

It is the claim and testimony of defendant that the sale was conditional; that he took the press into possession under an agreement to purchase and pay $500 for it if it proved satisfactory to him. He testifies as to plaintiff’s representations:

“ I did not take his word entirely for it. I would not have bought it so. Went up to look at it, though telling him I knew nothing about printing presses, and saw what it was; then I had Mr. Maddox and Mr. Handy go with me and look at it the night I spoke of. Don’t say I didn’t put any confidence in them — ‘the representations;’ but I naturally went up to look at the press to see what he was talking about. I didn’t rely very much on these representations. I examined the press. ”

It seems difficult to reconcile such testimony with a claim that defendant took the press relying on representations made by the plaintiff. The instructions given on that subject were fully as favorable to defendant as the testimony warranted. We find no reversible error in the rulings of the court admitting and rejecting testimony against defendant’s objections.

The two controlling issues in this case were issues of fact. They were, first, the terms of the contract between the parties, put in issue by the testimony of plaintiff and Howard on the one side and of defendant on the other; second, the circumstances of signing the receipt for $75, in relation to which plaintiff and defendant gave contradictory versions. As to this, the court, among other things, said:

“ The defendant insists that it is conclusive evidence of the real contract between the parties. The plaintiff, on the other hand, insists that he signed it hastily, not knowing its contents. This is a matter, gentlemen, which you must determine; that is, the truth of it must be determined from the evidence.”

All other testimony in the case was material only in so far as it threw light on those two contentions. We think the court submitted those issues of fact to the jury under instructions which were plain, clear, and correct, fully covering the case and containing all the essential elements found in defendant’s requests which were pertinent to the controversy.

The judgment is affirmed.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    DES GRAND CHAMP v. DUFLO.
    1. Wills — Interpretation—Intent.
    In order to determine the intent of a testator, the instrument is to be considered as an entirety giving effect to every part, and emphasizing substance rather than mere form.
    2. Same — Intestacy—Statutes.
    In Michigan the law requires all intendments to be made so as to avoid a partial intestacy.
    3. Same.
    By a clause in a will whereby the testator provided that his entire estate should go to his “legalheirs absolutely in the proportions to which they might be entitled under the provisions of the statute” if he died intestate, excepting three beneficiaries who were given bequests of money in a preceding clause and who were to receive only the portion so given as their full share of such estate, it was not intended to give to the heirs provided for by such clause the same shares they would obtain in an intestate distribution, but testator’s purpose was to divide the estate among the heirs not excepted in the proportions they would receive under the statute, leaving no part of the property undisposed of.

      i. Same — Perpetuities.
    A clause devising land and other property to one beneficiary during his life, giving him control of the same, followed by a further clause declaring that it was testator’s wish to keep such property intact and that it should remain unsold, operated merely as a request addressed to the conscience of the devisees. In so far as a restriction on its alienation may have been attempted, the clause was void.
    Appeal from Wayne; Hosmer, J.
    Submitted January IS, 1912.
    (Docket No. 66.)
    Decided March 12, 1912.
    Bill by Bartholomew Des Grand Champ and others against Peter Duflo and others for the construction of the will of John B. Duflo, deceased. From a decree for defendants, complainants appeal.
    Affirmed.

      Robert M. Dalton (Brennan, Donnelly & Van De Mark, of counsel), for complainants.

      Horace H. Rackham and Alfred Lucking, for defendants.
   Blair, J.

John B. Duflo, an unmarried man, on April 28, 1902, made a will containing a number of specific legacies and devises. The instrument contained eight numbered paragraphs, as follows:

“jFirst. I desire that my debts, if any, expenses of my last sickness and funeral shall first be paid.
“Second. I direct that my brother, Peter J. Duflo, shall have the entire income from and the entire control of the property situated in Grosse Pointe on the lake shore, known as the Fishery; together with the 13 acres connected therewith and said property shall not be sold nor shall any attempt be made to interfere in any way with the authority and control of my said brother, Peter Duflo, of said premises. I direct that he shall have the power to rent said premises and to handle same in the same manner as we have done in the past. He shall, however, from the income from said premises, pay or cause to be paid the taxes levied thereon.
‘ ‘ Third. I give and bequeath to my nephew, Henry Hunce, as and for his full share in my estate, the sum of five hundred dollars.
“Fourth. I give and bequeath to my niece, Elizabeth Hunce, as and for her full share in my estate, the sum of five hundred dollars.
“Fifth. I give and bequeath to my nephew, Bartholomew Des Grand Champ, as and for his full share in my estate, the sum of one thousand dollars. All of said bequests, however, to be paid out of the money on hand at the time of my death. If there is not sufficient money to pay the same at the time of my death, then I direct that my executors, hereafter named, shall pay the legacies after they have received sufficient money from mortgages or from the net income from my estate to pay same. I do not wish that any property shall be sold for the purpose of paying said legacies.
“Sixth. I give, devise, bequeath all the estate of which I may die possessed to my legal heirs, absolutely in such proportions to which they might be entitled under the provisions of the statute if I die intestate excepting, however, the said Henry Hunce, Elizabeth Hunce and Bartholomew Bes Grand Champ, who shall receive only the portion given them by paragraphs three, four and five of this will, which is intended to be as for the full share in and to my said estate.
“Seventh. I hereby name and appoint my nephews, William and John Des Grand Champ, as executors of this will, directing my executors, however, not to interfere in any way with the possession and control of the Fisheries, hereinbefore mentioned, which custody and control I have given to my brother, Peter J. Duflo, so long as he shall live.
Eighth. It is my wish that the property hereinbefore mentioned as the Fisheries and the 13 acres connected therewith remain unsold, and that my heirs after the death of my brother, Peter J. Duflo, who is given control thereof during life, appoint some suitable person to act as trustee for the others and keep said premises rented, and the ’income after paying therefrom the necessary expenses in keeping said premises in good repair divided among all of my legal heirs except those mentioned in the third, fourth and fifth paragraphs of this will. I make this request because it was the wish of my father that the Fisheries remain unsold and be known as the Duflo property.”

On his death, the will was duly probated. The persons named as executors qualified and administered the estate. Duflo left four sets of heirs, so that if he died intestate, or if any of his property was intestate property, the same would be inherited in four equal proportions, as follows: Peter Duflo, a brother, one-quarter; Josephine Springer, a sister, one-quarter; Bartholomew Des Grand Champ, John Des Grand Champ, and William Des Grand Champ, children of a deceased sister, one-quarter; Henry Hunce and Elizabeth Hunce, children of a deceased sister, one-quarter. In due course of administration the executors filed a final account and petitioned the court for its allowance, and in the same application asked that the court enter an order distributing the estate, and alleging that Peter Duflo, Josephine Springer, and John and William Des Grand Champ were the sole persons interested and the persons entitled to take all of the estate. The complainants accepted and receipted for their several legacies in September and October, 1905, and on November 14, 1905, a final decree was made assigning all of the residue of the estate to the above-named defendants. The above-named complainants did not appeal to the circuit court from this decree. The five others did; but, it appearing that they had no inheritable interest, their appeal was dismissed by the circuit court.

The bill herein was filed February 17, 1906. An amended bill was filed December 7, 1906, praying:

“ That the will of John B. Duflo be set aside and held for naught, as being void under the statute of the State of Michigan, against perpetuities, and being more particularly sections 8796 and 8797 of the Compiled Laws of Michigan for 1897, being sections 14 and 15, chapter 287 of said Compiled Laws, pertaining to real property; and that his legal heirs be permitted to share equally in the undisposed portion of his real estate that has not been disposed of by the will of John B. Duflo; deceased, and remaining as intestate property belonging to the estate of John B. Duflo, deceased; and that the said will be construed by this court.”

One of the defendants, William Des Grand Champ, filed a plea to the whole bill, setting up the probate decree of distribution as res adjudicata. After full argument, Judge Mandell held this plea to be good and ordered the bill to be dismissed, unless complainants wished to amend. The complainants filed amendments to the bill February 15, 1907, by which they set forth, among other things, that no personal notice was served on them of hearing on the petition and that the notice published in the Detroit Legal News (being devoted to the publication of matters pertaining to courts exclusively) was not a sufficient notice. The defendants answered March 29, 1907. Replication was duly filed. The case was heard May 14, 1910. No evidence was put in by the complainants. The defendants introduced the proceedings of the probate court, and the appeal proceedings in the circuit court showing the dismissal thereof. Judge Mandell reaffirmed his previous ruling that the probate decree was a complete bar, and also held that the true construction of the will gave the complainants no interest in the estate except their legacies, and he thereupon dismissed the bill.

Complainants appeal to this court, contending:

(1) That paragraph 6 of the will gives to the defendants only the same interest in the estate which the law would give them, and therefore the will is inoperative as to such residue, and such residue passes under the law to all the regular heirs.
(2) That such paragraph gives them only what they would take without a will, and therefore the other portion of the estate is intestate and such portion, being one-third of the residue of the estate, goes to all the heirs, as heirs.
(3) That paragraphs second and eighth attempt to suspend the power of alienation of the “ Fishery ” in perpetuity, and therefore they are void and the “Fishery” is intestate estate.
(4) That the probate decree of distribution is not res adjudicateFirst, because there was no personal service; second, because such decree could not affect real estate.

The counsel for defendants claim:

(1) That the probate decree of November 14, 1905, awarding and turning over all of the residue of the estate to the defendants, was final and binding on all of the world, and is res adjudicata as to the whole bill.
(2) That paragraph 6 explicitly gives all of his estate, except legacies, to defendants in certain proportions fixed, and therefore there is no intestate estate.
(3) That no part of the estate is intestate, neither the whole of the residue nor any portion thereof.
(4) That paragraphs 2 and 8 are simply the expression of a wish, not a mandatory direction; but if they had been couched in mandatory language they would be void, not only as against the law of perpetuities but as in conflict with the absolute estate created by paragraph six; tand that therefore paragraph 6 controls the disposition of the “ Fishery,”

It is apparent that the principal questions raised by the briefs of counsel depend, in the main, for their solution upon the interpretation to be given to the sixth clause of the will. The primary object in the interpretation of a will is'to ascertain the intent of the testator, considering all its clauses together and giving effect, if possible, to every part. Foster v. Stevens, 146 Mich. 131 (109 N. W. 265) ; Gregory v. Tompkins, 132 Mich. 205 (93 N. W. 245); Thurber v. Battey, 105 Mich. 718 (63 N. W. 995).

“It has always been a primary rule of testamentary construction to look to substance rather than form. Our statutes favor this rule and also require all intendments to be made to prevent a partial intestacy.” Toms v. Williams, 41 Mich. 552 (2 N. W. 814).

See, also, Mann v. Hyde, 71 Mich. 278 (39 N. W. 78).

By the second clause of the will the testator gives to his brother Peter the income of the Fishery property, with the connected 13 acres, for life only, as shown by the seventh clause. By the third, fourth, and fifth clauses he gives to his two nephews and niece named therein cash legacies, and makes it perfectly plain that he intends that they shall have nothing from his estate except what he gives them in those clauses.

Bearing in mind the testator’s intention that the complainants should have no further share in his estate, we do not think there can be any reasonable doubt that it was his intention by the sixth clause to give the entire remainder of his estate to his other legal heirs (the defendants), in such proportions as they would have received if he had died intestate and they had been his only heirs; that is to say, the brother taking one share, the sister one share, and the .two nephews taking one share between them. In our view, this clause should be construed as excepting the three complainants from the number of his legal heirs, as though it read? I give, devise, bequeath all of the estate of which I may die possessed to my legal heirs (excepting, however, the said Henry Hunce, etc.), absolutely, in such proportions to which they might be entitled, etc.

The testator did not intend to give his entire estate to all of his legal heirs in accordance with the statute of distributions, neither did he intend to give only such portion to defendants as they would have inherited if he had died intestate. The authorities relied upon by complainants, therefore, have no application.

We do not regard the eighth clause of the will as a mandatory provision, but as a request addressed to the consciences of the heirs to whom he had given the fee of the Fishery property. Schram v. Rogers, 168 Mich. 340 (134 N. W. 13).

Furthermore, the fee is devised to the defendants, and their interests alone are affected by the provisions of the eighth clause. Therefore the restrictions of the eighth clause as to the right of alienation are void. In re Estate of Schilling, 102 Mich. 612 (61 N. W. 62); Latimer v. Waddell (N. C.), 3 L. R. A. (N. S.) 668, and cases cited in note.

In view of the above conclusions, it becomes unnecessary to consider the question of res adjudícala.

The decree is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    PEOPLE v. PERONI.
    Disorderly Houses — Statutes—Criminal Law.
    Evidence examined, and held, to sustain a verdict of guilty in a prosecution against the keeper of a house of ill-fame.
    Exceptions before sentence from Houghton; Streeter, J.
    Submitted January 18, 1912.
    (Docket No. 156.)
    Decided March 12, 1912.
    John Peroni was convicted of being the keeper of a house of ill-fame.
    Affirmed.

      William McDonald, Prosecuting Attorney, for the people.

      J. F. Hambitzer, for respondent.
   Brooke, J.

Respondent, having been convicted of being the keeper of a house of ill-fame resorted to for the purpose of prostitution and lewdness, reviews his case in this court upon exceptions before sentence. His exceptions are set out as follows:

“(1) For the reason that no evidence was introduced to show that the house in question was resorted to for the purpose of prostitution and lewdness as contemplated by the statute under which complaint was made.
“(2) For the further reason that no evidence was introduced to prove that lewd people resorted to said house within the period mentioned in the information filed in said case.
“(3) For the further reason that no evidence was introduced to show that the women being in said house during the period named were lewd women or prostitutes.
“(4) For the further reason that no evidence was introduced to show that during said period the house in question was a house of ill-fame of the type intended to be reached by said statute.
“(5) For the further reason that no evidence was introduced to show that during said period the said house had the reputation in the vicinity of being during said period a house of ill-fame of the type intended to be reached by said statute.
“(6) For the further reason that the few visits made during the period and few acts of unchastity testified to were insufficient to warrant a conviction under the information filed.
“ (7) For the further reason that, if the house in question had the reputation testified to by the police officers alone, such reputation was not warranted either by the number oi persons visiting the said house, or the number of females living in said house, or the number of acts of unchastity committed during said period and under the circumstances testified to.
t£ (8) For the further reason that the evidence does not show that the respondent, during said period, kept such place for the purpose of prostitution and lewdness, but that the acts of sexual intercourse were few, exceptional, and in no manner frequent or regular to bring said house during said period within the statute in question.
“ (9) Because the evidence, under the most stringent view, merely shows that the respondent was the keeper of a small rooming house and restaurant, in which during the period in question a few acts of intercourse were committed between a few persons not shown to be lewd or prostitutes.”

Respondent relies upon the decision of this court in the case of People v. Pinkerton, 79 Mich. 110 (44 N. W. 180).

We are of the opinion that the decision in that case does not rule the case at bar. To set out at large in this opinion the testimony of the various witnesses whose evidence tended to prove the commission of the offense charged, would be of no advantage to the profession. It is sufficient to say that, aside from the testimony of the police officer Tibor and the night watchman Wright, testimony was given by the two women, Selma Johnson and Nellie O’Brien, as well as by Bourrett, Herten, and Malmonini, which, under the careful instructions of the court, fully warranted the jury in reaching the conclusion that respondent was guilty as charged. People v. Wheeler, 142 Mich. 212 (105 N. W. 607).

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

Moore, O. J., and Steers, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    PEOPLE v. MARTIN.
    Intoxicating Liquors — Criminal Law — Local-Option Sale.
    Respondent was secretary of a brewing company, having its plant in the city of Battle Creek; county of Calhoun. In 1909, under the provisions of the local-option law, Calhoun county adopted prohibition, whereupon the brewing company reorganized and established its principal place of business in Kalamazoo county, in which prohibition was not in force. Its office in Calhoun county at the brewery was kept open and a bookkeeper was placed in charge, to receive orders for beer which the company purchased in Detroit, shipped to Kalamazoo and there stored, filling orders from its stock. A customer ordered a oase of beer at Battle Creek, upon an order blank which contained a condition that the order should be subject to respondent’s approval at Kalamazoo. The bookkeeper received payment for the beer. Held, that respondent violated the provisions of section 5412, 2 Comp. Laws, as amended by Act No. 183, Pub. Acts 1899.
    Exceptions before sentence from Calhoun; North, J.
    Submitted January 18, 1912.
    (Docket No. 154.)
    Decided March 12, 1912.
    Julius Martin was convicted of unlawfully selling intoxicating liquors in a county that had adopted prohibition.
    Affirmed.

      Franz O. Kuhn, Attorney General, and Robert H. Kirschman, Prosecuting Attorney, for the people.

      Stewart & Sabin, for respondent.
    Respondent, having been convicted of unlawfully selling intoxicating liquor in a “local-option” county, reviews his case in this court upon exceptions before sentence.
    The undisputed facts are as follows:

      “(1) The Battle Creek Brewing Company for many years conducted a brewery in the city of Battle Creek, having a very large investment of something more than $150,000, and was engaged in the manufacture of beer. At the April election of 1909, the people of the county of Calhoun voted to adopt local option, so called, and the supervisors, by resolution, based upon that vote, prohibited the manufacture and sale of the product of the Battle Creek Brewing Company under the provisions of the so-called local-option law.
    “(2) Soon after the 1st day of May, the day on which the law went into effect, the Battle Creek Brewing Company reorganized in the county of Kalamazoo, and became a corporation under the laws of the State, doing business in the city of Kalamazoo, and established an office in the city of Kalamazoo, and became licensed under the laws of the State of Michigan to carry on its business of selling beer, and was legally authorized in the county of Kalamazoo to carry on its business.
    “(3) The said Battle Creek Brewing Company still retained its property and brewery in the city of Battle Creek, but manufactured no beer therein, and also kept an office in the city of Battle Creek, in its brewery, with a bookkeeper in charge of the office. In conducting its business in Kalamazoo it purchased beer, which it sold, from a brewing company in the city of Detroit, and had its beer shipped to it in Kalamazoo, where it stored the same. The respondent is the secretary of the Battle Creek Brewing Company.
    “ (4) On July 7, 1909, one E. J. Mallory, living in the city of Albion, Mich., under the name of William Bressett, went to the office of the Battle Creek Brewing Company in the city of Battle Creek, and there gave an order to the bookkeeper in the office of the Battle Creek Brewing Company at Battle Creek for one case of beer, containing three dozen pints, which order was marked * Exhibit A ’ and introduced in evidence, and is in words and figures following:
    “ ‘All orders subject to the approval of the secretary of the Battle Creek Brewing Co. 7 — 7, 1909. To the Battle Creek Brewing Co., Kalamazoo, Mich.: Please ship the undersigned, via M. U. R., care of Wm. Bressett. Your company to allow me credit for empties returned as follows:

      per case. per case.
    2 Doz. Large Bottles, $3 25 2 Doz. Large Bottles, $1 25
    3 Doz. Small Bottles, 3 80 3 Doz. Small Bottles, 1 50
    2 Doz. Small Bottles, 2 20 2 Doz. Small Bottles, 1 00
    “ ‘All beer to be delivered to me at Kalamazoo, f. o. b. Inclosed find $3.10. Name, Wm. Bressett. Town, Marengo. This order is made on the express condition and understanding that no solicitor of the Battle Creek Brewing Company is authorized to take orders on behalf of said company, except subject to the approval of its secretary, and that this order shall not become binding upon the company until filed at its office at Kalamazoo, Michigan, and the approval of the secretary indorsed thereon. Cash must accompany all orders. i
    “ ‘Approval. The within order was filed with and approved by me at the office of the Battle Creek Brewing Company, at Kalamazoo, Mich., this 8th day of July, 1909. Delivery to be made at Kalamazoo, f. o. b.
    “Julius Martin,
    “Secretary of the Battle Creek Brewing Co.’
    “ And at the same time the said William Bressett paid to the bookkeeper $3.10 as payment for the beer, and took a receipt therefor from the bookkeeper, and directed that the beer be shipped to the village of Marengo in the county of Calhoun. This order, together with the money, was sent to the Battle Creek Brewing Company at Kalamazoo. The respondent, Julius Martin, as seci'etary to the brewing company, approved the order at Kalamazoo, and shipped from the warehouse of the brewing company in the city of Kalamazoo one case of beer, addressed to William Bressett, Marengo, Calhoun county, Mich., and delivered the same to the American Express Company at Kalamazoo, which said express company delivered the beer to Mr. Bressett at Marengo.”
   Brooke, J.

(after stating the facts). The statute, section 5412, 2 Comp. Laws, as amended by Act No. 183, Pub. Acts 1899, prohibits any person, directly or indirectly, himself or by his clerk, agent, or employe, from manufacturing, selling, keeping for sale, giving away, or furnishing any of the liquors mentioned in the act.

It is the contention of the respondent that under the facts disclosed by this record the “sale” was made in the county of Kalamazoo, and not in Calhoun county. It is said by counsel for respondent:

" In this case it is sought to make the act of the respondent, acting as the agent of the Battle Creek Brewing Company, criminal, although his entire connection with the transaction complained of was in Kalamazoo where the brewing company was legally authorized to transact business by its agent.”

The very natural and perhaps excusable desire on the part of brewing companies to hold business during an arid season, and thus prevent the annihilation of property interests, has led them to devise many ingenious schemes. The one here under consideration was unquestionably designed by respondent and his associates to minimize so far as possible the loss which the adoption of “local option” in Calhoun county entailed upon their company, it doubtless being the expectation, or, at any rate, the hope, that within a short time a shift in public sentiment might result in the repeal of the (to them) obnoxious law. He and his business associates are responsible for the presence of the bookkeeper in the open office of the brewery at Battle Creek, clothed with authority to take orders and accept money for beer. With the motives of the respondent, however, whether laudable or otherwise, we have no concern.

The question is: Did he directly or indirectly, by himself, his agent, or his employé, make the sale in Calhoun county ?

We must agree with the conclusion of the learned circuit judge that where the order is given and the money paid over to the respondent or his agent in a local-option county, that must be held to be a sale in such county in contravention of the terms of the statute. The mere circumstance that the order carefully recites that it shall not be binding on the company until filed in its office in Kalamazoo and approved by its secretary cannot be permitted to sweep away the plain deductions to be drawn from the facts.

We have no doubt whatever that respondent made the sale in question by indirection, nor that he was engaged unlawfully in the prohibited business in Calhoun county within the letter as well as the spirit of the act. The cases of Kling v. Fries, 33 Mich. 275; Webber v. Donnelly, 33 Mich. 469; Webber v. Howe, 36 Mich. 150 (24 Am. Rep. 590); Rindskopf v. De Ruyter, 39 Mich. 1 (33 Am. Rep. 340); and Monaghan v. Reid, 40 Mich. 665 — cited by respondent, have been examined, but in our opinion they are not controlling in the case at bar.

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

Moore, C. J., and Steers, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.