author: Moore, J.

text:
    RUMSEY v. SETTLE’S ESTATE.
    Limitation of Actions — Acknowledgment of Debt.
    Within six years after one indebted on notes of different dates had promised by letter to pay the creditor ‘' every cent ” he owed, he wrote a second letter to the creditor, stating that he would like to fix the matter up by giving a new note, and inquiring as to what sum in cash, in case the creditor should consider a note worthless, he would take to balance all the debtor owed. Held, that, under 2 How. Stat. § 8725, the letters operated to keep the cause of action alive, as to all of the notes, for six years from the date of the last letter.
    Error to Montcalm; Davis, J.
    Submitted May 9, 1899.
    Decided June 5, 1899.

      Chauncey J. Rumsey presented a claim against the estate of Robert O. Settle, deceased, for the amount of six promissory notes. The claim was allowed by the commissioners as to one of the notes only, and claimant appealed to the circuit court. From a judgment for claimant for the entire amount, on verdict directed by the court, defendant brings error.
    Affirmed.

      Frank A. Miller and Morse & Locke, for appellant.

      L. C. Palmer (George E. & M. A. Nichols, of counsel), for appellee.
   Moore, J.

In the circuit court a verdict was directed in favor of the claimant by the circuit judge. The defendant brings the case here by writ of error. A number of errors are assigned, but, in our view of the case, a disposition of one of them disposes of the case. Prior to 1890, Mr.' Settle was a resident of Ionia county. In 1890 he entered into the employ of the Wagar Lumber Company, and removed with his family to Alabama, where he died in 1897. It is claimed by defendant that Mr. Settle always intended to return to Michigan, so that he did not lose his domicile here; while it is asserted by claimant that he lost his domicile in Michigan, so as to suspend the running of the statute of limitations against his debts. Prior to going to Alabama, Mr. Settle had given six notes, which were owned by Mr. Rumsey. The first of these notes came due January 3, 1885. The last one matured October 4, 1897. When presented as a claim against the estate of Mr. Settle, all of them had outlawed except the last one, unless the statute of limitations was suspended by the absence from the State of Mr. Settle, or unless the following letters were such an acknowledgment of the debt as to prevent the running of the statute. The last note was allowed’ by the commissioners on claims. The circuit judge bases his action in directing a verdict upon the letters. The3r read as follows:

“Muir, Mich., August 12, 1889.
“Mr. C. J. Rumsey.
“Dear Sir: I have not seen you, so I will drop you a few lines, and' say to you that, as far as my matters are with you, they are all right, and I shall wipe out the most of it this fall. I am having a little trouble with Mr. Town, but, as soon as that is' through, you will get some money. I will say this: That every cent I owe you will be paid. I shall get the Wilbur matter fixed up next week, and you will get what is due you there. Thanking you for your patience with me, I remain, t
“Yours respectfully,
“R. C. Settle.”
“Wagar, Ala., April 18, 1893. “Chauncey J. Rumsey.
“Dear Sir: When I was at Muir last year, I fully .expected to fix matters with you in some way, but there - was no chance for me to do so, for I did not collect a cent that I expected, and probably never will. Now, what I was going to write is this:~ I am working for the Wagar Lumber Co., and getting a good, fair salary, but, after paying living expenses, and my wife goes home summers, there is but little left. Now, I owe the Ionia County Savings Bank $300, with L. N. Olmstead as indorser, and I owe EL R. Wagar about $400, and I owe you. Now, I want to fix your matter up in some way; that is, give you a new note, or, if you think a note worthless, what will you take in cash, and balance all I owe you ? I have not said anything to H. R. W., but, if you make it low enough, maybe I could get him to lend it to' me, and add to his note against me. After I- hear from you, I will speak to him. Yours truly,
“R. C. Settle.”.
And written on margin of letter:
“ Rumsey: Put this down as low as you can, for I am afraid it will be more than he would be willing to lend me without any security, and I have none to give him.”

Objection was made to the admission of the first letter, because it was written more than six years before the claim was presented against the estate.

The provisions of the statute are as follows:

‘ ‘ In actions founded upon contract, express or implied, no acknowledgment or promise shall be evidence of a continuing contract, whereby to take a case out of the provisions of this chapter, or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing, signed by the party to be charged thereby.” 2 How. Stat. § 8725.

None of the notes, at the time this letter was written, were outlawed. The letter contains an acknowledgment of the debt, and a promise “that every cent I owe you will be paid,” and we think it clearly would prevent the running of the statute for six years from the time it was written. This would carry the time forward until August 12, 1895, more than two years after the last letter was written. ‘Did- the writing of the last letter, under these circumstances, renew the debt? Mr. Settle owed Mr. Rumsey not simply the amount due on one note, but the amount due on all of them. Under these circumstances he writes:

‘! When I was at Muir last year, I fully expected to fix matters with you in some way. * * * Now, I owe the Ionia County Savings Bank, * * * and I owe you. Now, I want to fix your matter up in some way; that is, give you a new note, or, if you think a note worthless, what will you take in cash, and balance all I owe you ? ”

Can there be any doubt this referred to all the notes, and that Mr. Settle recognized he still owed them and desired to pay them ?

The decisions are somewhat conflicting as to what the writing must show. 1 Wood, Lim. § 68, states the rule as follows:

Present theory: It may now be said that the theory of acknowledgment is settled as to simple contracts on the principle that there is required either an express promise to pay the debt, or an absolute admission of indebtedness from which a promise to pay may naturally be inferred, which new promise is sufficiently supported by the consideration of the past debt; and a clear admission of a debt being evidence, if unrebutted, of a new promise to pay sufficient to avoid the statute, it follows that three questions will usually arise as to any alleged acknowledgment: First, is there an admissipn of the debt in question? second, is such admission narrowed by any qualification which rebuts the presumption of a promise, or subject to any condition on the fulfillment of which the implied promise is dependent ? and, third, if there is a condition, has it been satisfied ? On the first question there is considerable liberality in construing a reference to a debt as an admission. Thus, where the admission was in the following terms: ’ I am ashamed the account has stood so long,’ it was held to be a good acknowledgment. Cornforth v. Smithard, 5 Hurl. & N. 13. In another case the debtor wrote as follows: ‘ I hope to be in Hampshire very soon, when I trust everything will be arranged with W. [the creditor] agreeable to her wishes; ’ and this was held a sufficient acknowledgment. Edmonds v. Goater, 15 Beav. 415. And in a later English case the two following letters, written by the defendant, were held sufficient to prevent the operation of the statute, although in fact no account was sent in, in compliance with the request in the letters. Quincey v. Sharpe, 1 Exch. Div. 72. The letters were as follows r
‘“January 13, 1873.
“ ‘Mr. Quincey.
“ ‘ Sir: I shall be obliged to you to send in your account made up to Christmas last. I shall have much work to be done this spring, but cannot give further orders until this be done.
“ ‘I am, sir,
“ ‘ Your humble servant,
“ ‘ J. Sharpe.'
“ ‘February 19, 1872.
“ ‘ Mr. Quincey.
‘Sir: You have not answered my note. I again beg of you to send in your account, as I particularly require it in the course of this week. ' To oblige, sir,
“ ‘ Yours, etc.,
“ ‘ John Sharpe.'
“ Thus it will be been that an admission of the debt will .be sufficient, although the exact amount payable is disputed, or remains to be proved.”

The letter of April 18, 1893, meets all the requirements of the statute. See Ten Eyck v. Wing, 1 Mich. 40; Crane v. Abel, 67 Mich. 242; In re King's Estate, 94 Mich. 411; Chidsey v. Powell, 91 Mo. 622 (60 Am. Rep. 267); Wilcox v. Clarke, 18 R. I. 324; Lang v. Gage, 66 N. H. 624; McNear v. Roberson, 12 Ind. App. 87; King v. Davis, 168 Mass. 133; Hill v. Hill, 51 S. C. 134; First Nat. Bank v. Woodman, 93 Iowa, 668 (57 Am. St. Rep. 287); Walsh v. Mayer, 111 U. S. 31; Howard v. Windom, 86 Tex. 560; Woodbridge v. Allen, 12 Metc. (Mass.) 470; Mitchell v. Clay, 8 Tex. 443; Custy v. Donlan, 159 Mass. 245 (38 Am. St. Rep. 419).

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BLACKMAN v. SIMPSON.
    False Imprisonment — Joint Tort Feasors — Divided Action— Satisfied Judgment as Bar.
    A satisfied judgment for plaintiff in an action of false imprisonment against the complaining witness, the magistrate, and the constable, in which the declaration alleged the continuance of the imprisonment until a delivery by the constable to the sheriff, is a bar to a subsequent suit against the sheriff, upon substantially the same state of facts, for the continuance of the false imprisonment until the evening of the next day.
    Error to Grand Traverse; Corbett, J.
    Submitted May 10, 1899.
    Decided June 5, 1899.
    Case by William Blackman against Oscar Simpson for false imprisonment. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Underwood & Umlor, for appellant.

      Pratt & Davis, for appellee.
   Moore, J.

-The plaintiff brought this action against .defendant to recover for false imprisonment. The circuit judge rendered judgment in favor of defendant. The plaintiff brings error.

July 24, 1897, James Daj^s made a complaint against the plaintiff before Mr. Chase, a justice of the peace. The justice issued a process for the arrest of the plaintiff. It was placed in the hands of Mr. Wyckoff, a constable, who arrested the plaintiff, and brought him before the magistrate, where such proceedings were had that the magistrate issued a commitment to the constable, who took the plaintiff about 20 miles to the county jail, and delivered him, at 8 o’clock on the morning of July 25th, to the sheriff, the defendant in this case. The sheriff had plaintiff in custody until about 5 o’clock the next day, when he was discharged. It is conceded the proceedings before the magistrate were void. In December, 1897, the plaintiff sued the complaining witness, the .magistrate, and the constable in an action of false imprisonment. He filed a declaration in the case, in which the foregoing facts were set up, and stated the false imprisonment continued ■ until about 8 o’clock on the morning of July 25th, and that, because of these acts, he had been damaged in repu-' tation, and disgraced among his neighbor’s and other citizens, and suffered great anxiety and pain of body and mind, and that he had been hindered about his business for a long time, to wit, “for the space of two days, and the plaintiff has been and is greatly injured by the said premises in his good name, fame, credit, and reputation on and by reason of the stigma cast upon him by said illegal, unjust, and unwarrantable and void proceedings and false imprisonment inflicted on him, as aforesaid, by the defendants, and each of them, whereby the said plaintiff says he has sustained damages, and is damaged and injured, to the amount of five thousand dollars, and therefore he brings suit,” etc. The plaintiff recovered a judgment, which was paid in full to the clerk of the court, and by him to the plaintiff.

After this payment was made, the plaintiff - commenced this suit for false imprisonment against Oscar Simpson, who was the sheriff at the time plaintiff was detained in the jail. In his declaration he set up substantially the same state of facts that he had narrated in the former declaration. In addition thereto, he stated he was imprisoned by defendant from about 8 o’clock on the morning of July 25th, and that the false imprisonment perpetrated by defendant continued until about the hour of 5 o’clock in the evening of July 26th. He claimed, as the result of said false imprisonment, he had been damaged in reputation, and disgraced among his neighbors, and suffered anxiety and pain of body and mind, and been hindered in his business for a long space of time, to wit, ‘‘ for the space of four days, and the plaintiff has been and is greatly injured by the said premises in his good name, fame, credit, and reputation on and by means of the stigma cast upon him by said false imprisonment inflicted on him, as aforesaid, by the said defendant, whereby the plaintiff says he has sustained damages and is injured to the amount of five thousand dollars, and therefore he brings suit.” The defendant pleaded the former suit, judgment, and satisfaction thereof in bar to this suit. The circuit judge held the plea to be good. It is the claim of the plaintiff that, as in the first case he stated the false imprisonment continued until 8 o’clock on the morning of July 25th, while in this case he stated it commenced at that time, and continued until 5 o’clock in the evening of the next day, and as the sheriff had nothing to do with him prior to 8 o’clock of July 25th, there are two causes of action, and the second one is not affected by what was done in the first.

It may, perhaps, be doubted whether the sheriff could be made liable for what occurred before the plaintiff was brought to him; but can it be doubted that t e complain, ing witness, magistrate, and constable could be held for the results of their acts ? If plaintiff suffered anxiety and pain of body and mind, and disgrace, and a stigma at tached to his good name, must he be limited in his recovery of damages, in the first trial, to what occurred in these respects prior to 8 o’clock on the morning of July 25th? How would the jury decide what he suffered before, and what after, 8 o’clock, in his reputation and injury to business? As the proceedings from the inception are admitted to be void, there can be no doubt the parties to the first suit were joint wrong-doers, not only as to what occurred prior to 8 o’clock, but during the entire time of the false imprisonment, and the plaintiff could have recovered against them his entire damages.

‘ ‘ The 'law permits all the wrong-doers to be proceeded against jointly. It also leaves the party injured at liberty to pursue any one of them severally, or any number less than the whole, and to enforce his remedy, regardless of the participation of the others. While the wrong is joint, it is also, in contemplation of law, several. * * * The officer who serves a void writ is not the less an individual wrong-doer because of the magistrate being liable for having issued it. And, while in such cases the person injured may pursue all, so he may pursue any number of those who are legally chargeable with the wrong. If one is sued alone, it is no defense to him that others are not brought in to share the responsibility. If all are sued, one cannot excuse himself by showing the insignificance of his participation, as compared with that of others. * * * Nor, after suit is brought, can there be any apportionment of responsibility, whether the suit be against one or against all. Each is responsible for the whole, and the degree of his blamableness * * * is immaterial.” Cooley, Torts (2d Ed.), 153.

There can be no doubt plaintiff might have recovered all his damages in the first suit, and we have no means of knowing he did not.

In the false-imprisonment case of Thompson v. Ellsworth, 39 Mich. 719, Justice Graves said:

“It is a principle of general’application, in actions against wrong-doers, that the plaintiff may recover, by way of damages, at least all that he has lost up to the commencement of the suit through the wrongful act for which the defendant is sued (Rundle v. Little, 6 Q. B. 178); and it is also a general rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all, and that actions cannot he repeated from day to day, as the diurnal effects of the one original wrong happen to mature.”

The authorities are not agreed whether the bringing of a suit against one will prevent bringing a second suit against others. Some of them hold the bringing of the first suit is an election, which will preclude the bringing of other suits. See 2 Black, Judgm. § 780. Justice Kent stated the rule to be that the party injured may bring separate suits against the wrong-doers, and proceed to judgment in each, and that no bar arises as to any of them until sátisfaction is received. Livingston v. Bishop, 1 Johns. 290 (3 Am. Dec. 330). This is the prevailing doctrine in this country. Cooley, Torts (2d Ed.), 159. If the several judgments vary in amount, the plaintiff may elect to take the larger sum, or, if all the defendants are not solvent, he may elect to proceed against the solvent party; but the authorities are all agreed that the satisfaction of any particular judgment will release the other wrong-doers. Power v. Baker, 27 Fed. 396; Cooley, Torts (2d Ed.), 159; 2 Black, Judgm. § 782.

The plaintiff having sued three of the four wrong-doers in an action in which he might have recovered all his damages, in which action he recovered a judgment which has been paid and received by him, he capnot recover against the fourth wrong-doer.

The judgment is affirmed.

The other Justices concurred.


text:
    H. M. LOUD & SONS LUMBER CO. v. TOWNSHIP OF VIENNA.
    Taxes — Levy , and Sale — Voluntary Payment.
    Where, upon a sale of property under a tax levy, the owner appears by an agent, who, without protest, takes part in the bidding, procures the property to be struck off to him, and, upon the representation that he has not the required funds with him, induces the treasurer to accompany him to the owner’s office, where payment is made, such payment will be construed to be voluntary, even though the treasurer is required to give a receipt reciting that the money is “paid under protest after levy. ”
    Error to Montmorency; Kelley, J.
    Submitted May 10, 1899.
    Decided June 5, 1899.

      Assumpsit by the H. M. Loud • & Sons Lumber Company against the township of Vienna to recover taxes alleged to have been paid under protest. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Main J. Connine, for appellant.

      James Francis, for appellee.
   Moore, J.

The plaintiff sued the defendant to recover taxes paid by it to the treasurer of the defendant, claiming the assessment was void, and that the taxes were paid under protest. The circuit judge directed the jury to return a verdict for the defendant. The. case is appealed here by the plaintiff.

The plaintiff was the owner of the lands upon which the taxes were assessed. As the taxes were not paid, the treasurer made a levy upon logs belonging to plaintiff, and advertised them for sale on the 5 th of March, at which time they were offered for sale to the highest bidder. Mr. Park, the superintendent of fhe plaintiff, appeared in its behalf, and bid upon the logs. A man by the name of Stevenson also bid. After several bids were made, as Mr. Park was the highest bidder, the logs were struck off to him. Mr. Park’s version, upon the cross-examination, of what occurred, is as follows:

“I saw the notice that he had up for the sale. I think the date of the sale was March 5th. He offered the logs at that time to bidders. I don’t know who the first bidder was, out think it was a man from Lewiston, by the name of Stevenson. I don’t think any offer was made by the thousand, but an offer by the bulk. I have forgotten how much the first bid was. There was a certain amount offered for the logs. There were several bids. The next bid was a higher bid made by me. There was a bid made over me, and I bid over that again. I could not say how many bids there were made altogether. I made the highest bid made there that day. The logs were struck down to me as the highest bidder at that sale. I bought the logs in at that sale of the township treasurer. I did not pay him the money there for the logs I had bid in. The reason why I did not pay him the money there was because I wanted to counsel the members of the firm at Au Sable first. I had the money there to pay, but I did not want to pay until I heard from them. I paid for the logs on the 6th of March. I was bidding them in for the plaintiff. I think the amount of the bid was somewhere near the amount of the taxes. I think it was a trifle over.
Q. When Mr. Jones went down with you, he went down to get pay for the logs .that he had sold to you on that 5th day of March ?
“A. He went down to get pay for his taxes, — the amount of his taxes. * * * The sale was temporarily suspended at my request, until I could get the money and pay the taxes.”

Mr. Jones’ version of the transaction is as follows:

“Mr. Park made the last bid, and there were no more bids made after he made the bid, and it was struck off to him. The first bid made by Mr. Park did not come up to the amount of the tax. After the bidding was closed, there was something said about that he did not have the money to pay the hid that he had made on the logs, and he wanted I should go to Au Sable, and he would pay the money there. He said he did not have the money there to pay it, and, of course, I said then it would go to the next highest bidder, if he could not pay it. And he went on and said, if I would go down to Au Sable with him, he would get the money there, and pay it. I went. After we got there, they looked over the tax, and made out a receipt and a check, and presented them to me — the check and the receipt — to sign; and I said I did not think I could take this tax under protest. I got the money, and came home. ”

On cross-examination, witness, when shown the tax re-, ceipt, testified:

‘ ‘ That is my signature on the back of the tax receipt. When I signed that there, I think the writing, ‘Paid under protest after levy,’ was there immediately above my signature. I received the money on the 6th of March ”

No written protest specifying the grounds of protest was made by the plaintiff, and the record does not disclose any statement was made to the treasurer why the plaintiff claimed the right to pay the taxes under protest. In Hinds v. Township of Belvidere, 107 Mich. 664, it was held, in an action to recover taxes paid under protest, no showing can be made or recovery had upon any ground not named in the protest. This transaction is not a very creditable one to the plaintiff. Its representative appeared at the sale, and without protest took part in the bidding, and bid higher than another; and prevented the property from being sold to him. When the property was sold, it was represented that if the treasurer would go to the office of the plaintiff, which was not in the township where the sale was made, the amount of the bid would be paid to him. When he arrived there, an attempt was made by the plaintiff not to carry out the arrangement which induced the treasurer to be there, but to place him at a disadvantage.

The case is quite like that of Gachet v. McCall, 50 Ala. 307, where themwner appeared at the sale, and voluntarily promised the collector, if he would postpone the sale until the next day, he would pay the taxes and fees. The sale was postponed, and on the next day, pursuant to the promise, the owner paid the amount in full, but declared he paid the fees under protest. It was held this was a voluntary payment, and that no portion of the money could be recovered back.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    DAVIDSON v. FOX.
    1. Justices of the Peace —Attachment—Service —Foreign Corporations.
    In 1879 the justice’s court act was so amended as to permit the issuance of attachments against foreign corporations (2 How.' ■ Stat. § 6831). Sections 6840 and 6841, being parts of the original act, provide for service of the writ either personally or by leaving a copy with the custodian of the property seized. Another statute (2 How. Stat. § 8143) provides that in suits commenced by attachment against a foreign corporation, if personal service is had on any officer, member, clerk, or agent of such corporation within this State, the same proceedings shall he had as in case of an attachment against a natural person. Held, that section 8143 is permissive merely, and does not provide an exclusive mode of service, but that service upon a foreign corporation may properly be made in accordance with the provisions of the justices’ act.
    2. Same — Substituted Service — Return.
    A constable’s return that the defendant named in a justice’s writ of attachment has no last place of residence within the county is not insufficient for failure to certify that he has made diligent search to find a last place of residence.
    3. Same.
    A return of substituted service of a justice’s writ of attachment, which states that the officer retained the writ in his hands, and ‘ ‘ made diligent search ” for defendant, during all the time in which personal service might be made, is not open to the objection that it does not show that defendant could not be found, where the return begins with the statement “I * * * am unable to find” the defendant.
    A Same.
    Substituted service of a justice’s writ of attachment, made more than six days before the return day of the writ, is valid, where the officer’s return shows that he retained the writ and made diligent search for the defendant for the full time required.
    Error to Wayne; Carpenter, J.
    Submitted April 20, 1899.
    Decided June 5, 1899.
    Trover by Alexander Davidson against David W. Fox, the Detroit Journal Company, Fred H. Lutz, and William W. Watson. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      George W. Bates, for appellant.

      Bacon & Palmer, for appellee Watson.

      A. Ward Copley (Cutcheon & Stellwagen, of counsel ), for other appellees.
   Montgomery, J.

This is an action of trover to recover the value of certain store fixtures and bicycle sundries taken on two attachments in favor of the Detroit Journal Company and Fred H. Lutz, respectively, against the property of the Davidson Cycle Company, a foreign corporation. Plaintiff is the assignee of the Davidson Cycle Company. Defendant Fox is the constable who served, the writs. Defendant Watson is a warehouseman with whom the property was stored. The circuit judge held that the attachment proceedings were valid, and directed a verdict for the defendants. The plaintiff contends that the law makes no provision for service of attachment from justices’ courts against foreign corporations, and that if section 8143, 2 How. Stat., applies to such proceedings, the service should be on an officer or agent of the corporation. It is also contended that the return of service is defective in each case, for reasons which will be referred to later on.

1. Prior to 1879 justices of the peace had no jurisdiction to issue attachments against foreign corporations. In that year section 6831, 2 How. Stat., was amended so that it now provides that:

“Any plaintiff shall be entitled to an attachment against a defendant in any action founded on a judgment, or on a contract, express or implied, if such plaintiff, or some person in his behalf, shall make and file with the justice an affidavit * * * containing a statement. * * * Fifth, that the defendant is a foreign corporation.”

The clause last quoted is the one introduced by way of amendment. Language could not well be clearer. Is the service provided by the justices’ act sufficient? This amendment is to the justices’ act, and the act, as amended, is to be construed as a whole. Sections 6840 and 6841 provide for service either personally or by leaving with the custodian of the property seized. But it is contended that section 8143 provides the exclusive mode of service in attachment cases. -This section makes no provision for service in case no officer, member, clerk, or agent of such corporation be found within the county. The' language of the section is permissive, and we think it should be so construed. It does not, therefore, provide an ex-' elusive mode of service.

2. In the Journal Company case the return of service is as follows:

“By virtue of the within writ of attachment, I, David W. Fox, on the 9th day of September, 1897, at the city of Detroit, Wayne county, Michigan, seized the goods and chattels of the defendant, the Davidson Cycle Company, a foreign corporation, within named, which are mentioned in an inventory, of which the annexed is a copy; and I hereby certify that I have made diligent search and inquiry, and am unable to find said Davidson Cycle Company, or any person on whom personal service of the within writ could be made as against the said Davidson Cycle Company, within the said county, and therefore, on the 14th day of September, 1897, because the said defend-ant could not be found, I left a copy of the within attachment and of the said inventory, duly certified by me, with Frank H. Chapman, in whose possession I found the said goods and chattels; and I certify that said defendant has no last place of residence within said county; and I further certify that I retained the within writ in my hands, and made diligent search for the said defendant, during all the time within which personal service might by law have been made.”

In the Lutz case the return was as follows:

“By virtue of the within writ of attachment, I, David W. Fox, on the 10th day of September, 1897, at the city of Detroit, Wayne county, Michigan, seized the goods and chattels of the defendant, the Davidson Cycle Company, a foreign corporation, within named, which are mentioned in an inventory, of which the annexed is a copy; and I hereby certify that I have made diligent search and inquiry, and am unable to find said Davidson Cycle Company, or any person on whom personal service of the within writ could be made as against the said Davidson Cycle Company, within the said county, and therefore, on the 15th day of September, 1897, because the said defendant could not be found, I left a copy of the within attachment and of the said inventory, duly certified by me, with Frank H. Chapman, in whose possession I found said goods and chattels; and I certify that said defendant has no last place of residence within said county; and I further certify that I retained the within writ in my hands, and made diligent search for the said defendant, during all the time within -which personal service might by law have been made.”

Each of these returns shows—

First. That the officer was unable to find the defendant.

Second. That he retained the writ in his hands, and made diligent search for the defendant, during all the time in which personal service might by law be made.

Third. That the defendant had no last place of residence within the county.

Fourth. That service was made on the person in whose possession the property was found at least a sufficient length of time before the return day.

It is urged that the return should have certified that the officer made diligent search to find a last place of residence of defendant, and that a return in terms that the defendant has no last place of residence within the county is* not sufficient. The statute does not require any more specific return in that regard than was made in this case. Buehler v. De Lemos, 84 Mich. 554; Nicolls v. Lawrence, 30 Mich. 395, 397.

It is also said the return, showing the officer retained the writ in his hands, and made diligent search for defendant, during all the time in which personal service could be made, does not show that he could not find the defendant. It is true, this language does not, standing alone, show this fact; but the officer also returns, “I * * * am unable to find the said Davidson Cycle Company.” This is sufficient.

The fact that substituted service was made in one case more than six days before the return day does not invalidate the service, in so much as it appears that the officer retained the writ and made diligent search for the defendant for all the time required. Matthews v. Forslund, 113 Mich. 416.

We find no error. Judgment affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    HAWKINS v. COMMON COUNCIL OF VILLAGE OF LITCHFIELD.
    1. Villages — Common Council — Resolutions—Repeal.
    A resolution of a village council stands until modified or repealed.
    2. Same — Liquor Bonds — Approval.
    The arbitrary refusal of a village council to accept a liquor bond which complies with the terms of a resolution of the council then in force cannot be sustained under the power to suppress saloons, conferred upon it by Act No-. 3, Pub. Acts 1895, chap. 7, § 1, such power being exercisable only by ordinance.
    3. Same — Mandamus.
    A village council having in good faith, without passing on the sufficiency of the sureties, refused to accept a liquor bond, mandamus should merely require the council to examine into their sufficiency, and approve the bond if found sufficient.

      Certiorari to Hillsdale; Chester, J.
    Submitted June 6, 1899.
    Decided June 8, 1899.

      Mandamus by Jennie Hawkins to compel the common council of the village of Litchfield to approve a liquor bond. From an order granting the writ, respondent brings certiorari.

    Modified and affirmed.

      Stone & Twiss, for relator.

      Franhhauser & Cornell, for respondent.
   Per Curiam.

The village of Litchfield was organized under the general incorporation act for villages. Act No. 3, Pub. Acts 1895. Under paragraph 7, § 1, chap. 7, power is conferred upon villages to, by ordinance, suppress saloons for the sale of spirituous and intoxicating liquors. At a regular meeting of the common council on October 5, 1896, the common council, by resolution, fixed the saloon bonds at $6,000, with three sureties. At a regular meeting held May 3, 1897, by resolution the bonds were reduced to $3,000, with two sureties. May 2, 1898, one liquor bond was presented and approved in the sum of $3,000. No resolution was passed that year nor since fixing the amount of the bond. Relator presented her bond in the sum of $3,000, with two sureties. The common council refused to accept the bond, and relator applied to the circuit court for the writ of mandamus to compel its approval. The circuit court granted the order, and respondent removed the matter to this court by the writ of certiorari.

A resolution of the common council stands until modified or repealed. A common council is a continuing body. The resolution of 1897, fixing the amount of such bonds at $3,000, remained in force until further action of the council was taken. None having been taken, it follows that the bond was in compliance with the law, provided the sureties were sufficient.

It is 'contended that the council may suppress saloons by refusing to accept the bond. We cannot concur in this view. The law contemplates some formal action upon the subject by ordinance, and not otherwise.

The action of the council appears to have been taken in good faith, and they have not passed upon the sufficiency of the sureties. We think the order of the circuit court, therefore, too broad. It will be modified so as to compel the common council to meet, examine into the sufficiency of the sureties, and approve the bond if found sufficient.


text:
    BLODGETT v. FOSTER.
    1. Contracts — Abandonment — Substituted Asreement — Consideration.
    Plaintiffs’ assignor, after entering upon the performance of a contract with defendants for the sale of lumber to be cut from a large tract of land, decided, because of its unprofitableness, to abandon it, and respond in damages, rather than attempt to fulfill it. Defendants desired the completion of the contract, and to that end entered into a new agreement, whereby they were to pay an increased price for the lumber if the contract was faithfully performed. Under this agreement, the contract was carried out by the seller, defendants from time to time giving their acceptances for the lumber at the increased rate. Held, that the new contract was based upon a sufficient consideration, and that defendants were bound by it.
    2. Same — Insurance—Value.
    A contract for the sale of lumber provided that the seller should make monthly statements to the purchaser, showing the quantity and grades of lumber in the yards, and should procure ■such lumber to be insured, at the joint expense, to a specified percentage of its value. Held, that the contract price was to be treated as the value for the purpose of insurance.
    3. Same — Time—Waiver.
    Where one who sold under contract certain lumber to be cut and delivered to the purchaser, finding himself unable, because of litigation, to begin work until some months after the time agreed upon, explained the situation to the apparent satisfaction of the purchaser, and the latter thereafter accepted the lumber manufactured under the contract, making no claim, in any of the numerous statements of account submitted by him, for damages for delay, he (the purchaser) will be deemed to have waived the terms of the contract as to time of performance.
    Appeal from Kent; Grove, J.
    Submitted April 4, 1899.
    Decided June 19, 1899.
    Bill by Delos A. Blodgett and Delos F. Diggins against John J. Foster and Henry N. Anderson for an accounting. From a decree for complainants, defendants appeal.
    Affirmed.

      Crane, Norris & Stevens, for complainants.

      Fitz Gerald & Barry (Francis A. Stace, of counsel), for defendants.
   Moore, J.

A reference to the report of this case when it was here before (Blodgett v. Foster, 114 Mich. 688) will do away with need of making so long a statement of the case as would otherwise be necessary. Upon the trial of the case the witnesses were examined in open court. As a result of concessions made by the solicitors in open court, there are not many questions now open for controversy. One of the most important questions relates to the effect of a contract reading as follows:

“In consideration of the faithful performance of the above and foregoing contract by the parties of the-first part, which they agree to do, it is hereby agreed by the parties that the prices for lumber shall be one dollar per M. feet higher than prices named in the within contract.
“ Chittenden & Herrick, “By C. C. Chittenden.
“John J. Foster & Co.,
“By John J. Foster.”

This contract was made in April, 1893, and was indorsed upon a contract, known as the ‘ ‘ Lake City Contract,” dated April 23, 1892, between the same parties, providing for the sale of lumber to be cut from standing timber estimated to make 15,000,000 feet. There is not very much controversy about the circumstances under which this contract was made. Chittenden & Herrick had entered upon the manufacture of the lumber. The stock did not turn out as they expected. It was either very good or very poor. There was but very little of the intermediate grades. They found they could not carry out the contract without loss. They concluded that, in justice to themselves and their creditors, they ought not to continue it; that it would be better for them and their creditors that they should become liable for any damages for its breach, rather than to attempt to carry it out, and they decided not to carry it out. After reaching this conclusion, Mr. Chittenden had an interview with defendants, and explained the situation fully to them, when it was agreed that defendants would advance the price a dollar a thousand, and Chittenden & Herrick should complete the contract. Prior to this, Foster & Co. had been authorized to make payments on the contract to Blodgett & Co., who were authorized to receive them. Later a copy of this contract of April, 1893, was attached to the copy of the prior contract in the hands of Blodgett & Co., and the contracts were assigned to them. After this contract was made, lumber was manufactured and shipped to Foster & Co., who prepared statements, some 19 of them, showing the amounts received by them, in which the lumber was billed at the enhanced price, and acceptances for the balances shown by these statements were remitted by them to Blodgett & Co. 13,500,000 feet of lumber was manufactured under these two contracts, and was received by defendants. It is now claimed by them there was no consideration for the contract of April, 1893, and that they should not be bound by their statements or by the contract. It is contended by complainants that defendants are bound for two reasons:

1. Because Chittenden & Herrick decided to give up the old contract, and this was assented to by the defendants’ consenting to make a new contract, in which the price of the lumber should be one dollar a thousand greater than in the old contract.

2. Because Blodgett & Co., who were bankers, made large advances to Chittenden & Herrick on the strength of this new contract, of which Foster & Co. had knowledge.

The circuit judge found in favor of the contention of complainants.

The authorities are conflicting as .to whether such a contract as the one of April, 1893, is based upon a sufficient consideration. The question is not an open one, however, in this State. In Moore v. Locomotive Works, 14 Mich. 266, defendant refused to complete its contract with the plaintiffs, except under a substituted agreement. In disposing of the case, after a review of the authorities, Justice Cooley, speaking for the court, said:

“ Each of these cases is to the point now in issue before us. It is true that in each the abandonment of the con-, tract by the plaintiff was before very much had been done under it, and on the claim' that the bargain was a hard one upon him. But neither of these circumstances can distinguish the cases from the present. An unprofitable contract is not, by that circumstance, made any the less binding on the promisor; and the promisee has the same right and the same power to discharge a contract in consideration of a new promise, after breach as before. A different case would be presented if the plaintiffs below had relied upon an agreement to waive the damages, made after delivery, for in that case nothing would have remained for them to do or to promise which could be a consideration for the waiver. But here, although they had done the work which enabled them to deliver the engine, they refused altogether, according to their statement, to go further, except under the substituted agreement; so that the plaintiffs in error actually received the property under the promise which they now insist is invalid. If they regarded it for their interest at the time to make the arrangement, and have obtained the property under it, it is not in our power now to set it aside on the ground of their being entitled to just as much under the contract before existing. They knew their legal rights at the time, and must be supposed to have consulted their own interests in entering into the new arrangement.”

In Goebel v. Linn, 47 Mich. 489 (41 Am. Rep. 723), an ice company had agreed with a brewer to furnish him ice for the ensuing season at $1.75 a ton. The crop of ice harvested in the winter was a short one. Ice was furnished under the contract until May, when the ice company refused to furnish any more for less than $3.50 a ton. The brewer agreed to pay this, and ice was furnished under this agreement. It was claimed by the brewer that the ice company took advantage of his necessities, and the new contract was made under duress. It was also claimed he obtained only what by his contract he was entitled to have at the lower price, and the new contract was without consideration. The court said:

“It is very manifest that there is no ground for saying that the note in suit was given without consideration. It was given for ice -which was furnished by the payee to the defendants, which was owned by the payee and bought by the defendants, and for which defendants concede their liability to make payment. What the defendants dispute is the justice of compelling them to pay the sum stipulated in the note, when, according to their previous contract, they ought to have received the ice for a sum much smaller. The defense, therefore, is, not that the consideration has failed, but that a note for a sum greater than the contract price has been extorted under circumstances amounting to duress. It is to be observed of these circumstances that, if we confine our attention to the very time when the arrangement for an increased price was made, the defendants make out a very plausible case. They had then a very considerable stock of beer on hand, and the,case they make is one in which they must have ice at any cost, or they must fail in business. If the ice company had the 'ability to perform their contract, but took advantage of the circumstances to extort a higher price from the necessities of the defendants, their conduct was reprehensible, and it would, perhaps, have been in the interest of good morals if defendants had temporarily submitted to the loss, and brought suit against the ice company on their contract. * * * But the defendants did not elect to take that course. They chose, for reasons which they must have deemed sufficient at the time, to submit to the company’s demand, and pay the increased price, rather than rely upon their strict rights under the existing contract. What these reasons were is not explained to us-, except as above shown. * * * What is certain is that the parties immediately concerned, and who knew all the facts, joined in making a new arrangement, out of which the note in suit has grown. The case of Moore v. Locomotive Works, 14 Mich. 266, where a similar case was fully considered, is ample authority for supporting the new arrangement.”

See Conkling v. Tuttle, 52 Mich. 630.

In this case, if Chittenden & Herrick did not go on with their contract, defendants could have sued them for a breach of it. They did not see fit to do this, but, instead, agreed, in order to have the contract completed, they would pay one dollar a thousand more for the lumber. Relying upon this agreement, Blodgett & Co. made advances to Chittenden & Herrick, who manufactured the lumber, relying upon the new agreement. The defendants received the lumber under the new agreement, and from time to time sent their acceptances, for the amount due upon the basis of the new agreement, to Blodgett & Co. Under these circumstances, we do not think they can say they are not bound by the agreement.

The next question of importance relates to one item of $325 paid for insurance on the Hoxeyville contract, and one item of $1,033.34 for insurance on the Lake City contract, which it is claimed complainants should pay. The circuit judge rejected these items. Whether they should be rejected or not depends upon the construction to be given to the provisions contained in the contracts in relation to insurance. In the first-named contract, the parties of the second part therein agree to pay one-half of the insurance on said lumber. In the Lake City contract the language as to insurance is: “Said Chittenden & Herrick agree to keep said lumber insured to 80 per cent, of its value, and to pay two-thirds of the cost of the insurance; the other third to be paid by the parties of the second part.” It is the claim of Chittenden & Herrick that the lumber was to be insured treating its value as being the price for which they sold it. Defendants claim it was to be insured for its market value, irrespective of the price which they paid for it. The question is not free from difficulty. The insurance was to be of lumber at Hoxeyville and Lake City. Its value there was, doubtless, what the parties had in mind. Chittenden & Herrick were required to make a monthly statement to Foster & Co. of the quantity of lumber in the yards, and of the different grades and qualities. With this statement in hand, and the prices named in the contract which were to be paid for the lumber, it was a simple matter of computation to learn what the value of the lumber was which was to be insured. Chittenden & Herrick were to procure the insurance. If the price for which they sold the lumber was not to be regarded as its value for insurance purposes, how could they arrive at the amount for which it should be insured ? It was not marketed by them to anybody except the defendants. They had no way of knowing how much it brought in the market. The defendants never furnished them monthly statements of its value, based upon the price it brought in the market. Mr. Foster testified it was none of the business of Chittenden & Herrick for what Foster & Co. sold the lumber. There was no testimony in the case showing what the various grades of the lumber was worth, from month to month, at Hoxeyville and Lake City, except as it may be inferred it was worth the price for which Chittenden & Herrick sold it to Foster & Co. We think that price should govern in construing these contracts.

The remaining important question for discussion is a claim of $4,000 damages for delay in commencing the work at Lake City.. The contract provided the work should be commenced June 15, 1892. It was not commenced until September or October. The cause of this delay is explained by Mr. Chittenden as caused by litigation between the party from whom they bought the timber and one who claimed adverse title to it. This litigation resulted in the person from whom they bought the timber being enjoined from selling it. He said the matter at the time was explained to Mr. Foster, who said he was entirely satisfied, and to go ahead with the manufacture. An examination of the record convinces us the defendants were satisfied with the explanation, and excused the delay. There were upwards of 13,000,000 feet of lumber manufactured by reason of this contract. A great many statements of account were made by the defendants, and a great mass of correspondence resulted in relation to it. No claim was made, in these statements or in this correspondence, of any intention to claim any damages because of the delay in commencing the work. These statements are 21 in number, running over a. period of néarly two years. No item for damages was charged against Chittenden & Herrick upon the books of defendants. The contract of April, 1893, was made after this delay occurred. There is nothing to indicate any claim of damages until they filed their answer in this case. They accepted the lumber manufactured under this contract, making no claim on account of delay. By accepting and retaining the lumber under such circumstances, they have waived the.terms of the contract as to time. See Crane v. Wilson, 105 Mich. 554.

The claims for damages on account of misgrading the . lumber and lath, and for wrongful piling of lumber, have been considered, but we do not deem it necessary to discuss them. We do not think the court erred in his disposition of the case.

The decree is affirmed, with costs.

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


author: Grant, C. J.

text:
    McCARTHY v. DETROIT CITIZENS’ STREET RAILWAY CO.
    Street Railways — Accident at Crossing — Contributory Negligence.
    A person of mature years, familiar with the sitifation.at a street-railway crossing, who went behind á passing car and upon a parallel track, where she was struck by a car approaching from the opposite direction, was guilty of contributory negligence, where the tracks were five feet apart, and there was no obstacle preventing her from seeing the car which caused the injury, had she looked for it after the first car had'passed.
    Error to Wayne; Donovan, J.
    Submitted April 5, 1899.
    Decided June 19, 1899.
    Case by Lizzie McCarthy against the Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff (then 26 years old), on March 20, 1896, about 6 o’clock p. m., was going home from her place of business, in the city of Detroit. She went west on Michigan avenue as far as the east side of Wayne street, at which point she contemplated crossing to the north side of Michigan avenue. Defendant has double tracks on Michigan avenue; the north track being used for cars running westerly, and the south track for cars running easterly. There is a space of 5 feet between the north and south tracks, and 15 feet from the curb to the south rail of the south track. From the curb one may see down the street in an easterly direction three blocks. As plaintiff started from the curb, there was a car on the south track going east, and she waited for it to pass, standing about 6 feet from the car. At the same time, there was a car on the north track going west. After the south car passed, she attempted to cross, and was struck by the west-bound car. Plaintiff did not see the car going west, although she claims to have looked, until she was between the rails of the north track. She then attempted to step back, but could not get out of the way before the car struck and injured her. She testified that no gong was sounded on the west-bound car, although gongs were sounding, as her other witnesses testified. There was another car coming on the south track, half a block away. At the time there were no vehicles or obstructions between the cars so as to obstruct the view. The car that struck plaintiff was going from 6 to 8 miles an hour,— the speed allowed by the city ordinance. Defendant moved the court to direct a verdict for defendant. The court submitted the case to the jury, who rendered.a verdict for plaintiff.

      Brennan, Donnelly & Van De Mark, for appellant.

      William Look and Ira G. Humphrey, for appellee.
   Grant, C. J.

(after stating the facts). For about a year plaintiff had crossed the street at this place, and at the same time of the day, when cars were running frequently. She was therefore entirely familiar with the situation, and the danger incident! to the place, and the necessity of care upon her part. She stood about 6 feet from the track till the east-bound car had passed. Can it be doubted that the moment she had crossed that track and entered upon the place between, at which time she was about 5 feet from the other track, she could have seen the approaching car, had she looked ? If this be so, how can it be said that she had performed the duty which she owed to herself, — to look before advancing upon the other track ? It is evident that she did not look until she had stepped upon the track where the car was approaching. She had walked about 15 feet without looking. The car approaching on the south track was too far away to give her any apprehension. She had only to glance to the right as she • advanced after the car on the south track moved away from her, and she would have seen the car •approaching. This case cannot be distinguished from McGee v. Railway Co., 102 Mich. 107 (26 L. R. A. 300, 47. Am. St. Rep. 507); Henderson v. Railway Co., 116 Mich. 368; Borschall v. Detroit Railway, 115 Mich. 473.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    FARWELL v. HALLADAY.
    Bona Fide Purchaser — Record—Erroneous Index — Notice— Evidence.
    A purchaser of lands from one of his neighbors, whom he had long known, and who he knew owned no other land in the vicinity, will be held to have had notice of an incumbrance, where it appears that, before purchasing, he went with the vendor to the office of the register of deeds, where he found a mortgage by the vendor indexed as covering other lands in the same section, the record of which he refused to examine, but which in fact was a record of the mortgage on the land in question, and it further appears that, during the negotiations, this mortgage was referred to asjbeing upon the lands covered by the deed.
    Appeal from Emmet; Adams, J. "
    Submitted April 5, 1899.
    Decided June 19, 1899.
    Bill by Margaret Farwell against Harmon Halladay, Ella E. Halladay, and Fred L. Heller, to foreclose a mortgage. From a decree for complainant-, defendant Heller appeals.
    Affirmed.
    On May 23, 1882, the defendants Halladay, husband and wife, executed a mortgage to one Simon King, guardian, for $200, on the N. W. of the S. W. J of section 31, town 33 N., range 6 W., which was their homestead. The mortgage was recorded on the following day in the office of the register of deeds for Charlevoix county, volume 7, page 43. The mortgage and the note accompanying the same were afterwards duly assigned to complainant, who filed this bill to foreclose. The Halladays deeded this land to the defendant Heller on May 31, 1887, by warranty deed, which was duly recorded the same day. On the back of the mortgage was the usual certificate by the register of its recording. The mortgage, as written, erroneously described the property as the N. E. i of the S. E. ]- of the same section, town, and range. The mistake was discovered before execution, and the correct description written in. Heller claims to be a bona fide purchaser without- notice, actual or constructive, of this mortgage. Evidently by mistake of the register, the mortgage was erroneously indexed as against the N. W. i of the N. W. i of the same section, town, and range. In October, 1887, the volume containing the record of this mortgage was destroyed by fire. Defendant Heller claims that he went with Halladay to the office of the register of deeds at the time of his purchase; that they gave the description of the land to the deputy register of deeds, and asked to have the title examined; that the deputy informed him that there was no mortgage upon the land. They did find, however, the index of a mortgage executed by Halladay and his wife to Mr. King, indexed as above stated. They declined to examine the record of this mortgage. The learned circuit judge filed a written opinion holding that the mortgage was duly recorded by the correct description, and that Heller had notice and knowledge of its existence at the time he purchased.

      H. R. Lovell, for complainant.

      J. M. Harris, for appellant.
   Grant, C. J.

(after- stating the facts). We think there is ample testimony to sustain the conclusion of the learned circuit judge. Mr. Halladay owned no other land in that section. Heller was his neighbor, and had been for many years. We think it is a fair deduction from the evidence that Heller knew of the existence of this mortgage. There was no record of any other undischarged mortgage given by the Halladays. Heller knew that they had given a mortgage. It is evident from the testimony of the witness Garbutt, the attorney for Halladay and Heller, who drew the deed and took the acknowledgment thereof, that this mortgage, was referred to, at the time the negotiations for the 'purchase were going on, as being upon the land covered by the deed.

Whether, under the circumstances of this case, the index of the mortgage, to which Heller’s attention was called at the time, was sufficient to put him upon inquiry, we need not determine.

Decree affirmed.

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


text:
    GERARDO v. BRUSH.
    t. Contract of Employment — Authority of Agent — Evidence.
    A finding that the captain of a yacht was authorized to bind defendant, the owner, by hiring plaintiff for the season as engineer, is sustained by evidence that defendant’s attorney sent to the captain a season’s contract, signed by defendant, and containing a blank for the engineer’s signature, which contract bore date of about the time that the captain had, to defendant’s knowledge, hired plaintiff under a parol agreement, the terms of which were in dispute at the trial, but which plaintiff claimed was for a season’s employment.
    2. Same — Wrongful Discharge by Agent — Notice to Principal.
    Where the captain of a yacht is authorized by the owner to discharge subordinates, one whom the captain wrongfully discharges is not obliged, before he can recover for breach of the contract of employment, to seek out the owner and demand the fulfillment of the contract.
    3. Same — Conduct of Servant after Discharge.
    The fact that an engineer on a yacht, after his wrongful discharge by the captain, made an assault upon the latter, which, had it occurred during the term of his employment, would have justified his discharge, cannot be urged as a cause for the discharge in defense of an action for breach of the contract of employment.
    4. Witnesses — Credibility—Instructions.
    A refusal to instruct that, if the jury should believe that a witness has testified falsely or erroneously in any particular, they may disregard his whole testimony, is not erroneous, since the request does not take into consideration the materiality of the testimony, the intention with which it was given, nor the fact of corroboration by other witnesses.
    Error to Wayne; Hosmer, J.
    Submitted April 5, 1899.
    Decided June 19, 1899.

      Assumpsit by William Gerardo against Alfred E. Brush for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Plaintiff claims that he was employed as engineer on board the defendant’s yacht for the season of 1897, commencing April 1st. His contract was with Capt. Klintworth, the captain of the yacht, and was made about the 27th of March. The contract rested in parol. The claim of the defendant is that plaintiff was employed from month to month, and that he was discharged at the end of the first month. After the season closed, plaintiff brought suit for breach of contract, claiming the right to recover the contract price, less what he had earned meanwhile. He had verdict and judgment.

      Thomas S. Jerome, for appellant.

      D. B. Hayes and R. I. Lawson, for appellee.
   Grant, C. J.

(after stating the above facts). 1. Defendant insists that the evidence shows no authority on the part of Capt. Klintworth to make the contract for the defendant. Plaintiff testified that Capt. Klintworth informed him that the engagement would be by the season, and not. by the year; that on the 18th or 20th of April the captain informed him that his services would no longer be required after that month; that he saw Mr. Brush on the yacht about the 28th of April, and asked him why he was not going on the new boat which defendant had purchased, with the rest of the crew, to which defendant replied, “I suppose you are; ” that he informed Mr. Brush that the captain had told him that his services would not be required after the 1st of the month; that defendant replied he would see him again about it; that he never signed a written contract; that a contract was sent to Capt. Klintworth for him to sign, providing for his employment by the season, and that he did not sign it' because it was not handed to him to sign. Plaintiff then rested. Defendant then moved the court to direct a verdict for him on the ground that plaintiff had shown no authority on the part of Capt. Klintworth to enter into the contract, and that plaintiff made no claim upon defendant for further wages, and gave him no notice of any claim of continuous employment or refusal to acquiesce in his discharge. The motion was denied.

When plaintiff rested, he had shown no authority in Capt. Klintworth to make the contract in suit. Defendant then introduced Capt. Klintworth, who testified that he had no authority to make a contract, except from month to month; that he himself was not hired by the season, and so could not hire plaintiff for that time. He further testified that he had been employed by defendant prior to that time as captain, but had never been employed for the season. It further appeared from his testimony that, during the first or second week in April, defendant’s attorney prepared a contract with him for the season, and also prepared a contract in blank for the engineer to sign, which blank contract was dated March 27th, and signed by defendant, and a blank left for the engineer’s signature. This contract did not contain the name of the engineer, but was to be a contract for the season from April 1st to November 30th, at a salary of $65 per month. It appears from plaintiff’s testimony that Mr. Brush knew that he had been employed as engineer. The fact that a contract was written out, dated at the same time that plaintiff claims his parol contract was made, is evidence tending to substantiate the plaintiff’s statement. We think that this blank contract was properly admitted in evidence for this purpose, and that the question of the terms of the employment were properly left to the jury. It is evident that Capt. Klintworth was authorized to make a contract of employment. It may be inferred that he reported this contract to the defendant or his attorney, and that a blank contract was prepared accordingly.

2. Defendant next .insists that plaintiff has not placed himself in a position to insist upon the breach of the contract; citing and relying upon Collins v. Hazelton, 65 Mich. 220. That case differs from this in the fact that plaintiff was discharged by a mill foreman, and there was no authority shown on the part of June to discharge plaintiff, nor any actual knowledge and approval of his discharge. There was also doubt as to whether the plaintiff had been dismissed at all. In this case the authority of Capt. Klintworth to discharge plaintiff is unquestioned. We think the case comes within the rule of Jones v. Transportation Co., 51 Mich. 539. Under plaintiff’s testimony, he was peremptorily discharged. Under defendant’s theory, there was no discharge, because it was a hiring from month to month, and the contract was terminated. We do not think that plaintiff was under obligation'to find Mr. Brush, and inform him of his discharge, and demand a continuance in his employ. While Capt. Klintworth did not notify plaintiff that he was discharged for incompetency, he testified that, while he saw nothing against his competency while employed on the yacht, he had heard reports of acts of incompetency, and therefore ' notified him that he would not be wanted after one month.

3. Plaintiff was paid off at the end of the month. At that time a dispute arose between the captain and plaintiff in regard to a charge made that he had stolen certain tools. After he had been paid, and the captain was walking away, plaintiff asked him if he meant to say that he (plaintiff) stole the tools, to which the captain replied, “Well, the tools were there this morning, and they are gone this afternoon;” whereupon plaintiff assaulted the captain. This testimony is undisputed. An instruction was requested,to the effect that this gave cause for discharge, even if plaintiff had a contract for the season, and that, therefore, plaintiff could recover only nominal damages. An assault upon the master of a vessel is a very serious offense, justifying plaintiff’s discharge if it occurred during the term of his employment. If the assault had taken place after plaintiff was notified that his service would terminate at the end of the month, and before such termination, a question would arise which we need not determine. It is a fair "inference from the testimony that this occurred after his service was terminated. This being so, such action would constitute no defense.

4. Defendant preferred the following requests:

“(1) If you believe that in any part of his testimony any witness has sworn falsely or erroneously, you are entitled to disregard all his evidence.
“(2) It appears in evidence in this case that plaintiff’s testimony as to his employment is contradicted by the testimony of Mr. and Mrs. Klintworth. His testimony as to other matters is contradicted in one case by Mr. Taylor and Mr. Caswell, in another case by Mr. "Wallace, and in another case by Mr. Blankerts. If you believe that in any of these cases plaintiff has testified falsely, you are entitled to disregard his whole testimony.”

These requests were refused, and nothing appears to have been said by the court, in its instructions to the jury, upon the credibility to be given to the witnesses. The first request is faulty in that — First, it leaves out the question of materiality; and, second, it would have instructed the jury that they could disregard all his evidence if they found that upon any point he had sworn erroneously. This is not the law. Impeachment by contradictory testimony must be on a material matter, and an error or ^mistake on the part of a witness does not warrant an instruction that the jury may entirely disregard the testimony. The second request is also faulty, in that it left out entirely the question of intentional falsehood. The word “false” does not necessarily involve turpitude of mind. One definition of “false” is “erroneous,” “untrue.” The false swearing must be intentional or willful to justify a jury in disregarding the testimony entirely, and an examination of the authorities will show that courts have usually so instructed. Hamilton v. People, 29 Mich. 173; O’Rourke v. O’Rourke, 43 Mich. 58; Knowles v. People, 15 Mich. 408. The request also is silent upon the question of corroboration. The jury should be instructed upon this point, for, if the witness is corroborated on some material po'nts, that fact should be considered by the jury in determining what weight they should give to the testimony. It is not customary, nor do we think it good practice, to specify the witnesses by name, as was done in this request. It may be technically correct where the judge determines, as a matter of law, that the point upon which contradiction is claimed is a material point. In this connection we call attention upon these technical charges to the language of the court in Hillman v. Schwenk, 68 Mich. 296. It may be unfortunate that the judge did not instruct the jury upon this question, for it is a case where such instructions would have been very appropriate. The judge would have done ' well to instruct the jury orally upon the subject; but, inasmuch as the requests preferred are not warranted by the law, we cannot reverse the judgment for this reason.

This case was submitted on briefs. The attorneys for plaintiff make no reference whatever to this point, and the attorney for the defendant cites no authorities, but contents himself with the mere statement that the refusal was error. We cannot commend this method of preparing briefs. It may save labor for attorneys, but it adds to the labor of the court.

Judgment affirmed.

The other Justices concurred.


text:
    FRIAR v. SMITH.

    Brokers — Double Agency — Commissions.
    A broker employed to sell property cannot be at the same time the agent of the purchaser, and entitled to commissions from both parties, unless both principals know that he is acting in such dual capacity.
    2. Same — Middlemen.
    A broker employed as a mere middleman, not to negotiate a sale or purchase,'but simply to bring two parties together, and permit them to make their own bargain, may recover an agreed compensation from either or both, though neither may know that compensation is expected from the other.
    Error to Kent; Adsit, ,J..
    Submitted April 5, 1899.
    Decided June 19, 1899.

      Assumpsit by Janies Friar and Martin Friar against Henry C. Smith to recover a commission on an exchange of real estate. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Wolcott & Ward, for appellant.

      Dunham & Dunham, for appellees.

       Rehearing denied November 7, 1899.

   Montgomery, J.

The plaintiffs are real-estate .brokers. This action is brought to recover a commission claimed to be due from defendant for introducing him to another customer of plaintiffs, with whom defendant made an exchange of property. The plaintiff James Friar, on the trial at the circuit, testified that he told the defendant that he had certain farms in his hands which the owner desired to exchange for city property, and that defendant agreed with him that, if he (Friar) would bring him (defendant) a customer with whom he could make a deal, a commission would be paid. The witness also testified that the defendant was at the time informed that the plaintiffs also expected a commission from the other party to the transaction. This testimony was corroborated by other witnesses. It appeared in the case that the plaintiff James Friar had given a somewhat different version of the transaction in the justice’s court; that he omitted to state that defendant was informed that plaintiffs expected a commission from the other party; and that he testified in justice’s court that defendant’s promise was to pay a commission to any one who made a deal for him. The defendant denied any agreement to pay commissions at all, and denied that he was told that plaintiffs were to receive a commission from the other party to the trade. It appeared that plaintiffs subsequently introduced to defendant one Hanrahan, who owned two farms near Grand Rapids, and that an exchange was made by defendant of his property for one of these farms. The witness James Friar testified that his arrangement with Hanrahan was identically the same as with defendant. The defendant’s contention apparently was twofold:

(1) That he made no agreement to pay commissions, but dealt with plaintiffs as agents of Hanrahan.

(2) That, if the jury should find an agreement to pay commissions, the evidence given in justice’s court by plaintiff James Friar disclosed a contract against public policy, and that for this reason plaintiffs were not entitled to recover.

A number of exceptions were noted to rulings on admission of testimony, which we have examined, but do not discuss at length, as we are convinced that no damaging error was committed in this regard.

The rules of law applicable to this class of cases are briefly stated:

1. An agent to sell may not become the agent of the purchaser, nor may an agent to buy become the agent of the seller, unless the principals are duly acquainted with the fact that the agent is acting in such dual capacity. Mechem, Ag. § 943; Scribner v. Collar, 40 Mich. 375 (29 Am. Rep. 541); Leathers v. Canfield, 117 Mich. 277.

2. If, however, both principals, with full knowledge, consent that the agent act on behalf of both,, the agreement for compensation is binding. See cases cited above.

3. Defendant, who knows that his agent expects a commission, may defeat recovery by showing that the other principal of the agent is unaware of the fact of such double agency, and this on the ground that the parties have engaged in a transaction against public policy. The law will not enforce their contracts, but will leave them where it finds them. Rice v. Wood, 113 Mass. 133 (18 Am. Rep. 459); Rice v. Davis, 136 Pa. St. 439 (20 Am. St. Rep. 931); Everhart v. Searle, 71 Pa. St. 256.

4. But there is another class of cases, in which the broker is not employed to negotiate a sale or purchase, but simply to bring two parties together, and permit them to make their own bargain. In such case he is a mere middleman, and may recover an agreed compensation from either or both, though neither may know that compensation from the other is expected. This is on the ground that such an employment does not place >the broker in a position where he can sacrifice the interests of his principal, and because' he is not, as agent of the owner, bound to secure the best price obtainable, or, as agent of the buyer, to purchase at the least price at which the property can be bought, as in such case he has nothing to do with fixing the price. Neither party has contracted for his skill, knowledge, or influence, and he stands entirely indifferent between them. Mechem, Ag. § 973; Ranney v. Donovan, 78 Mich. 318; Montross v. Eddy, 94 Mich. 100 (34 Am. St. Rep. 323); Rupp v. Sampson, 16 Gray, 398 (77 Am. Dec. 416); Orton v. Scofield, 61 Wis. 382.

The pivotal question in this case is whether the plaintiffs brought themselves within the rule last above stated, and whether the charge of the court fairly presented the question to the jury.

After presenting plaintiffs’ theory to the jury, the circuit judge charged as follows:

“There has been considerable said in your presence about agency. Now, under the defendant’s theory of this case, they claim that the contract, if one was made between the parties, was one of agency, and not, as the plaintiffs claim, one that would constitute them middlemen. The law does not recognize the liability of either party to such an agency as the defendant claims was the case. A man cannot act for the best interests of his principal in that manner; that is, as the agent of both parties, where he, or the agent, has to do the work, — effect the exchange. Therefore, the law holds it is against public policy to permit a recovery by an agent for a compensation .for making a sale or exchange of property from either the grantor or the grantee, unless such party against whom he seeks to collect had full knowledge of such double agency at the time he employed the agent. This rule of law on this subject is the same'today as it was in Jerusalem 2,000 years ago. A man cannot serve two masters at the same time, especially where their interests are diametrically opposed; and if you find that the contract that was made was one of agency, instead of that of middlemen,— that the plaintiffs were to make the trade, instead of the parties, — then plaintiffs are not entitled to recover.
“Now, the plaintiffs’ claim in this case is that they did not agree to do anything for the defendant, but they allege that, the defendant agreed that, if they did do certain things, — that is, bring to the- defendant a man with whom he could trade his property for a farm,— then, in that event, the defendant would pay the plaintiffs a commission therefor. This distinction of the claims of these two parties is well defined, and it is for you to determine which theory is true; that is, whether or not the defendant agreed to pay the plaintiffs for bringing to him a man with whom he could trade, they to do nothing in the matter, or whether or not the defendant agreed that they (the plaintiffs) should make the deal, as they term it,— the trade or exchange, — in which event they would be his agents, instead of middlemen, doing nothing between them. I want you to understand that distinction. That is the distinction in this case. Which is true ? If it is as the plaintiffs claim, then they are entitled to recover. If it is not as they claim, — if the contract was not made as they claim, — 'then they are not entitled to recover. If the alleged agreement had been that the plaintiffs agreed with the defendant that they would take his property, and do the best they could to find a purchaser for it by way of sale or exchange, and actually did find Hanrahan, and negotiate the exchange with him, — make the trade, or deal, as they term it, — then that would have constituted an agency, an agreement to do something; and, if they were to receive a commission from Hanrahan as well as from Smith, then in that event the law would not ajlow them to collect from either Smith or Hanrahan, unless the party sued had full knowledge of such double agency prior to the sale or exchange.”

Various clauses of this instruction are criticised, but on full consideration we are all agreed that the jury could not fail to understand, from the instructions, that the plaintiffs were only entitled to recover in case it was found, as a fact, that they contracted only to bring the parties together, and that, if this engagement was made to make the deal, they could not recover.

Error is assigned upon refusal to charge as requested. An examination of these requests not given, in connection with the charge, discloses that such of the requests as were proper were covered by the general charge, in which the court sought to narrow the issue to a single point. Under the instructions given, the jury must have found that the plaintiffs were middlemen, and, if this fact was found, they were entitled to recover, if, as the jury ■evidently found, there was an agreement for compensation.

We discover no prejudicial error. The judgment is affirmed.

The other Justices concurred.


text:
    MICHIGAN CENTRAL RAILROAD CO. v. BULLARD.
    1. Railroad Companies — Lease op Right op Way — Validity.
    A lease by a railroad company to a manufacturing company of a portion of its right of way, subject to termination on 60 days’ notice, made with a view to affording facilities for furnishing freight to the company, is valid.
    2. Landlord and Tenant — Title—Estoppel—Mistake op Fact.
    Where one in possession of land, the title to which is in himself, accepts, under a mistake of fact, a lease thereof, not under seal, from one not in possession, he is not estopped thereby from showing the facts in contravention of the lessor’s claim of title.
    3. Same.
    A person in possession conveyed property, and the vendee accepted a lease, not under seal, from one not in possession. The property, with the outstanding lease, was turned back to the vendor, whom the lessor sued for possession under the lease. Held, that, if the conveyance by defendant was of the absolute title, he would be estopped to contest the lease, except so far as the lessee might himself have contested it.
    Error to Calhoun; Smith, J.
    Submitted April 5, 1899.
    Decided June 19, 1899
    Summary proceedings by the Michigan Central Railroad Company against George A. Bullard to recover the possession of real estate. From a judgment for complainant on verdict directed by the court, defendant brings error.
    Reversed.

      Jesse M. Hatch (H. E. Winsor, of counsel), for appellant.

      Hulbert & Mechem, for appellee.
   Montgomery, J.

This is a summary proceeding to recover possession of a parcel of land in the city of Marshall. The circuit judge directed a verdict for complainant, and defendant brings error.

The property in question is a portion of what complainant claims as its right of way or depot grounds. The complainant introduced a lease of the premises to defendant, and showed that he had failed to surrender the premises according to its terms of rental. The defendant then sought to show that he was himself the owner of the premises, and had been for many years before the lease was executed, and was in possession when he received the lease from complainant. It appeared that in 1891 defendant conveyed the land adjoining (and, it is claimed by defendant, the land in question) to the National City Bank of Marshall, and that a similar lease to that made by the defendant was executed hy the receiver of the bank; that, before executing the lease, the receiver advised with defendant, who stated his understanding that the,building of defendant extended over the line, and that a corner of the building was on railroad ground, and advised the-receiver to sign the lease. This lease was not under seal. The land was turned back to defendant, with the lease outstanding, and the lease was turned over to defendant. The record does not show very clearly what the nature of the holding of the receiver of the bank was, as against the defendant, although it is inferable that the defendant still retained an interest in the land, and that reliance was placed on him by the receiver in determining whether to accept the first lease, and that, if he was mistaken as to the line between his property and that of the company, the receiver was likewise mistaken. The defendant offered to show that he owned, and had for 15 years owned and occupied, the land in question, and that the lease was made under a mistake of fact as to his ownership. This testimony was excluded.

A number of questions are raised, — among others, the right of the company to lease any portion of its right of way. The lease in question was made subject to termination on 60 days’ nptice, and was made to a manufacturing company with a view to affording facilities for furnishing freight to the company. Such a lease is not invalid. Grand Trunk R. Co. v. Richardson, 91 U. S. 454; Illinois Central R. Co. v. Wathen, 17 Ill. App. 582; Gurney v. Elevator Co., 63 Minn. 70; Roby v. Railroad Co., 142 N. Y. 176.

The important question is'whether the defendant was in position to raise the question of title; for, if he was, the circuit judge was in error in his ruling, and the remedy is in ejectment. If the possession of the defendant had been uninterrupted, his offer of proof would have indicated that he was prepared to show — First, that he had title to the premises in question; second, that he took the lease in question under a mistake of fact; third, that he did not derive possession from the complainant. An estoppel of the tenant arises out of indentures under seal, or from possession given, whereby an advantage is derived by the tenant from the act of the landlord. But where one in possession agrees by parol, or by an instrument not under seal, to rent, there is no just ground for denying the right of such tenant to show that the agreement was made under a mistake of fact, that the title to the property was in himself, and the lease therefore without consideration. Fuller v. Sweet, 30 Mich. 237 (18 Am. Rep. 122); 2 Tayl. Landl. & Ten. § 707, and cases cited in note.

It is claimed by complainant that defendant derived his possession from the receiver of the bank, who held under a lease from complainant, and that it was in fact deriving possession from complainant. If the absolute title passed to the bank from defendant, this position of complainant would be unassailable, unless a like mistake was shown by the receiver to relieve him from the apparent estoppel. We cannot determine on this record that the full title passed to the bank; nor are we, in view of the broad offer of the defendant, able to say that he was not prepared to show the same reason for a failure of estoppel by the receiver as applied to himself.

We think the judgment should be reversed, and a new-trial ordered.

The other Justices concurred.


text:
    THORKILDSEN v. CARPENTER.
    Tax Deeds — Quitclaim—Failure of Title — Recovery of Consideration.
    Where the holder of a tax title conveys by quitclaim deed, both parties acting in good faith, believing that the deed conveyed a valid title, the grantee is not entitled to recover back the consideration on a failure of the title.
    Appeal from Muskegon; Russell, J.
    Submitted April 19, 1899.
    Decided June 19, 1899.
    Bill by Thomas Thorkildsen against George W. Carpenter. and Stephen H. Clink for a refunding of moneys paid in part consideration for a deed, and for the cancellation of a note and mortgage given for the balance. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.
    Defendant Carpenter was the owner of a tax title upon certain lands, the original title to which was in a corporation known as the Lake Harbor Company of Muskegon. On August 7, 1897, he sold these lands to the complainant, and executed to him a quitclaim deed. The consideration was $525, — $275 in cash, and note and mortgage given back upon the same land for $250. The deed and mortgage were duly recorded. The contract was made through defendant Clink, an attorney, who stated to complainant, as alleged in the bill, that—

      “Said tax deed conveyed an absolute and paramount title; that the Supreme Court had been holding tax deeds for that year valid, and enforcing them; that, in the opinion of said Clink, there could be no successful defense to said tax deed or title, and that, if your orator would purchase said above-described premises from said Carpenter, he would receive a good and .indefeasible title.”
    In January following, the auditor general canceled this sale and deed to Carpenter, and issued a certificate of error, which was duly recorded in the office of the register of deeds. On being informed by his solicitor of this fact, complainant tendered to defendant Carpenter a duly-executed deed of said premises, and demanded a return of his money and the surrender and discharge of the note and mortgage. This was refused, and thereupon complainant filed this bill for the cancellation of the note and mortgage and the recovery of that portion of the purchase price paid in cash. To this bill the defendants demurred. The demurrer was sustained, and the bill dismissed. The bill also states that complainant had been informed by his solicitor that the cancellation by the auditor general w;as invalid.

      Alex. Sutherland, for complainant.

      H. B. Fallass, for defendant Carpenter.

      Stephen H. Clink, in pro. per.

   Grant, C. J.

(after stating the facts). Complainant insists that he is entitled to relief upon any one of four grounds: (1) Want of consideration; (2) false representations; (3) mutual mistake; (4) nonexistence of the subject-matter.

Good faith on the part of the defendants is conceded. It is also conceded that all parties acted in good faith, and believed the tax title was good. This is evidently a case of speculation. There was no fraud. Complainant chose to rely upon a quitclaim deed, by which he took only the title which defendant Carpenter had. Peters v. Cartier, 80 Mich. 124 (20 Am. St. Rep. 508); Beakley v. Robert, ante, 209. Complainant purchased at his own risk. Courts cannot read covenants into deeds. This would be in direct contravention of the statute., 2 How. Stat. § 5655. Complainant chose to buy upon the faith of the validity of the tax title without any examination. It was a voluntary payment, not induced by any fraud. Under his own allegation, Mr. Clink gave him only an opinion as to the soundness of the title. Where one took a quitclaim deed, and was evicted by an older and better title, held, that he could not recover the price paid. Soper v. Stevens, 14 Me. 133. Where both parties acted under the belief that the quitclaim deed conveyed a valid title, and the title wholly failed, held, that the grantee could not recover back, “for the parties to deeds know that a warranty is required to hold the seller to warrant the title, and they regulate their contracts accordingly.” Earle v. De Witt, 6 Allen, 520, cited and approved in Tucker v. White, 125 Mass. 346. Chancellor Kent held: “The vendor [of land] selling in good faith is not responsible for the goodness of his title beyond the extent of his covenants.” Gouverneur v. Elmendorf, 5 Johns. Ch. 79. See, also, Stoddard v. Prescott, 58 Mich. 542; Inhabitants of Barkhamsted v. Case, 5 Conn. 528 (13 Am. Dec. 92); Clark v. Sigourney, 17 Conn. 511.

Decree affirmed, with costs.

The other Justices concurred.