text:
    GRAND RAPIDS ELECTRIC RAILWAY CO. v. BATTLE CREEK, COLDWATER & SOUTHERN RAILWAY CO.
    Equity — Jurisdiction—Adequate Remedy at Law.
    In a suit in chancery involving the rights of two railway companies to rights of way claimed by both, the dismissal of the bill of complaint on the ground that the complainant has an adequate remedy at law is a proper disposition of the case where the question of title to the right of way is a disputed question of fact.
    Appeal from Calhoun; North, J.
    Submitted January 19,1910.
    (Docket No. 88.)
    Decided May 7, 1910.
    Bill by the Grand Rapids Electric Railway Company against the Battle Creek, Coldwater & Southern Railway Company and others for an injunction. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William E. Grove, for complainant.

      Williams & Lewis, for defendants.
   Moore, J.

The bill of complaint alleges that complainant company was organized in 1903 for the purpose of constructing a railroad from Grand Rapids to some point on Lake Huron, and a branch road from Grand Rapids to Lansing. It is also averred that in 1888 the Central Michigan Railroad Company was duly organized for the purpose of constructing a railroad from Presque Isle to the south line of the State, and that the last-named company entered upon the construction of its road, and that its articles of association were amended in 1895, making its southern terminus in Amboy, Hillsdale county, with a branch line of road from a point in Barry county to Grand Haven, Mich. It is further averred that the Central Michigan Railroad Company was unable to complete the work it had commenced, and that said complainant became the owner by purchase of the entire railroad franchise and property of the said Central Michigan Railroad Company in January, 1906; that it also became the owner by reason of a foreclosure sale of said property made in July, 1907. It is averred in the bill of complaint that, after becoming the owner as aforesaid, the complainant made arrangements for the construction and completion of said railroad. It is further averred that the defendant railroad company was organized in December, 1908. We now quote from the bill of complaint:

‘ ‘ To construct, maintain, and operate a railway or railways, or buy or lease and operate other railway or railways in connection therewith, in the State of Michigan, commencing at a point at or near the city of Battle Creek, in the county of Calhoun, and extending southerly through the county of Calhoun and through the county of Branch, to a point in or near the city of Coldwater, in said Branch county, and to acquire by purchase or otherwise the roadbed and rights of way of the Grand Rapids Electric Company (meaning your orator), ‘a corporation or association formerly existing but now inactive.’ * * * That said defendant has made a map of the route intended to be adopted by it for its said railway, and includes within its said route, as shown by said map, all of that portion of jmur orator’s said railroad, roadbed, and rights of way between the said cities of Battle Creek and Coldwater which lie and extend between a point on your orator’s said line of railroad near the shore of Beadle Lake, in said Calhoun county, and a point on said line near the city of Coldwater, in said Branch county, and about three-fourths of a mile therefrom, where your orator’s said line of railroad crosses the highway, and has applied to the Michigan railroad commission to have its said map approved, and said application has been set for hearing by said railroad commission on the 10th day of February instant at Lansing, and through its officers and agents gives out that it intends to appropriate the above-mentioned portion of your orator’s said railroad, roadbed, rights of way, and to deprive your orator thereof.
“Seventh. Your orator further shows unto the court that one James T. Tompkins of Girard, Mich., who claims to be the president of said Battle Creek, Coldwater & Southern Railway, and one Edward F. Pangborn, of Coldwater, Mich., who claims to be its secretary, are and have been active in the promotion and organization of the said Battle Creek, Coldwater & Southern Railway Company, and in its efforts and purposes of unlawfully appropriating the aforesaid portion of your orators said railroad and depriving your orator of the same and its property rights therein, and are the instigators of the unlawful acts, efforts, and purposes aforesaid of the said Battle Creek, Coldwater & Southern Railway Company, and are also hereby made defendants herein. * * *
“And your orator avers that the acts, intents, and purposes aforesaid of the said defendants are in direct violation of the laws of this State under which the said Battle Creek, Coldwater & Southern Railway Company claims to have become incorporated, and in direct violation of section 6343 of the Compiled Laws of 1897 of this State, which expressly declares that:
“ ‘There shall be no power, except for crossing, to take the track or right of way of any other railroad company except when any roadbed or part thereof has for five years remained, or shall hereafter for five years remain in an unfinished condition and without having the ties and iron placed and continued thereon up to the time measures are instituted to appropriate the same.’ ”

The prayer of the bill is:

“ (1) That the said defendants may be perpetually enjoined and restrained from proceeding any further in their efforts to have their said map approved by said Michigan railroad commission, and from filing for record or otherwise, or permitting to be recorded in the offices of the registers of deeds of said counties of Calhoun and Branch, or either of them, their said map or any map covering your orator’s said railroad, roadbed, or rights of way or any part thereof, and from in any manner interfering with your orator in the construction of its said railroad, or in its exclusive possession and enjoyment thereof and of its said rights of way, franchises and property, and in the meantime that the said defendants be restrained as aforesaid until the further order of the court.
“(2) And that the said defendants by the final decree of this court be required to change the route of their said railway so that no part of the same will be located upon any part of your orator’s said line of road or rights of way as located or purchased as aforesaid by it,” with a general prayer for relief.

Defendants interposed an answer denying the legal organization of the complainant. It admits the organization of the Central Michigan Railroad Company, but denies that it entered upon the construction of its road in good faith. It leaves complainant to its proofs as to certain averments. It denies many of the averments of the bill.

We now quote from the answer:

“ Defendants deny that said Central Michigan Railroad Company proceeded to acquire, and did acquire by purchase, rights of way 100 feet wide for the greater portion of the way along its route, as set forth in said second paragraph, and defendants aver that all said Central Michigan Railroad Company did with reference to acquiring said rights of way was within the period of six years or thereabouts after its first organization, as aforesaid, to take from property owners along its said proposed route a series of options to purchase and deeds with defeasance clauses, all of which options and deeds, with a few exceptions, have by their own terms long since expired and become null and void, and in the cases covered by such exceptions, in which such options and deeds no time limit was expressed within which such purchase might be made or such road might be built, such options and deeds are now unenforceable either at law or in equity by said Central Michigan Railroad Company or its successors or assigns, owing to the great lapse of time and change of property values which have ensued.
“Defendants, further answering, say that the defendant the Battle Creek, Coldwater & Southern Railway Company is the owner of fully nine-tenths of said right of way between the city of Battle Creek and the city of Cold-water, claimed by the said bill of complaint to have been owned by the Central Michigan Railroad Company, and has good and valid title thereto.
“Further answering, these defendants aver that said Battle Creek, Coldwater & Southern Railway Company within the past year has procured absolute quitclaim deeds of the farmers and others who own such right of way and who are in the actual possession thereof, which deeds grant and convey a strip of land four rods in width, the condition in said deeds in the nature of a defeasance being that, if said Battle Creek, Coldwater & Southern Railway Company does not build the proposed railway within the period of three years from the date of such deeds, then such deeds are to be void. And in this connection defendants urge that said defendant railway company is now negotiating for the small balance of such right of way, with every hope of being able to secure all the same except as to the cloud upon the title to a very small portion of such right of way represented by two quitclaim deeds to the Central Michigan Railroad Company in Calhoun county, and twelve quitclaim deeds in Branch county, and six option contracts in Calhoun county, and one option contract in Branch county, which do not contain a defeasance clause, and all of which were obtained by said Central Michigan Railroad Company 15 years ago, or thereabouts.”

Then follow denials of nearly all of the averments of the bill which go to the merits of the controversy; the answer ending as follows:

“And defendants submit to this honorable court that all and every of the matters in said complainant’s bill mentioned and complained of are matters which may be tried and determined at law and with respect to which the said complainant is not entitled to any relief from a court of equity, and, further, that there is no equity on the face of complainant’s bill, and defendants ask that they shall have the same benefit of these defenses as if they had demurred to complainant’s bill.”

After the temporary injunction was dissolved the case was brought here by mandamus, when this court declined to interfere. Grand Rapids Electric R. Co. v. Calhoun Circuit Judge, 156 Mich. 419 (120 N. W. 1004). The map of the defendant railroad company has been approved by the railroad commission, so that there is nothing for this court to do in relation to the action of the railroad commission. It is evident from the statement of the case which we have made that there is a sharp conflict in the claims of the parties as to who owns the various rights of way. We think it clear that the many disputed questions of fact which are involved in the controversy between the parties to this litigation should be settled in a court of law, where adequate and complete relief can be given to the parties.

The decree of the court below dismissing the bill of complaint is affirmed, with costs, but without prejudice to take such other proceedings as complainant may be advised.

Ostrander, Hooker, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    WORDEN GROCER CO. v. BLANDING.
    1. Bills and Notes — Negotiability—Conditional Sales.
    A promissory note containing a contract of sale, with a reservation of title in the grantor, not for security merely, but absolute, is a nonnegotiable instrument.

    3. Assignment — Evidence—Indorsement—Proof of Title.
    Evidence that the writing was indorsed on the back by and in the name of the payee, and delivered to the manager of the plaintiff for whom it was purchased, and the plaintiff had owned the same ever since, sufficiently proved the assignment.
    3. Same — Pleading—Justices of the Peace — Declaration.
    A declaration in justice’s court on the common counts, and specially on a writing filed with the justice as the sole cause of action of the plaintiff, whereto defendant pleaded the general issue and gave a special notice containing the admission that the payee transferred the paper to the plaintiff, sufficiently stated the assignment.
    4. Same — Declaration—Amendment.
    The objection that a declaration in justice’s court is insufficient for failure to aver an assignment of the instrument sued on, to the plaintiff, may be obviated by amendment in circuit court where the objection is first raised on appeal.
    Error to Montcalm; Davis, J.
    Submitted January 30, 1910.
    (Docket No. 98.)
    Decided May 7, 1910.
    Assumpsit in justice’s court by the Worden Grocer Company against William A. Blanding and James Blanding on a promissory note. There was judgment for plaintiff, and defendants appealed to the circuit court. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Barden & Barden, Milo Lewis {Earle, Hyde & Thornton, of counsel); for appellant.

      N. O. Griswold, for appellees.

       As to reservation of title of property as affecting negotiability of note for purchase price, see note to Choate v. Stevens (Mich.), 43 L. R. A. 277.

   Blair, J.

This cause was commenced in justice’s court, where the plaintiff declared orally “ on the common counts in assumpsit, and especially upon a note made by the defendants herein named in favor of Fred Soules,” etc., which note was filed with the justice. The defendants pleaded the general issue, and gave notice of special defense. A copy of the note in question is as follows, viz.:

“$150.- Coral, Mich., April 2, 1903.
“ Sixty days after date, for value received, we promise to pay to the order of Fred Soules, one hundred and fifty dollars, at the bank of O’Donald & Scott at Howard City, Michigan, with interest at 7 per cent, per annum until paid. This note is given subject to the approval of Fred Soules, Coral, Michigan, for a stock of groceries invoiced at $933.00 this day received of Fred Soules; the title to the said stock of groceries to remain in said Soules until this note is fully paid.
“W. A. Blanding, -
“James Blanding.”

There appeared on the back of the note the indorsement, “Fred Soules, Coral, Mich.” Trial was had in justice’s court before a jury, and plaintiff had judgment. No question appears to have been raised in that court as to the sufficiency of the declaration. The cause came on for trial on appeal before a jury. Mr. Roush, vice president and general manager of the plaintiff, was sworn as a witness in its behalf, and he testified that before its maturity he purchased the note in question of Fred Soules for the Worden Grocer Company, and at the same time said Soules indorsed the note and delivered the same to him for the plaintiff, and the plaintiff has ever since owned the note. Thereupon, the plaintiff offered the note in evidence; the defendants’ counsel interposed objections to the introduction of the note, grounding his objections upon the following propositions:

First. That the note in question is not a negotiable promissory note.

Second. That the proof did not show a sufficient assignment of the note.

Third. That even if the assignment was sufficient, the declaration did not sufficiently allege it.

The court sustained the defendants’ objections for each of the reasons above stated, and the plaintiff excepted to such ruling, and the court thereupon instructed the jury as follows:

“ Gentlemen of the jury, the court holds in this case that this is not a negotiable instrument. Further, there is no sufficient proof of assignment to entitle them to bring suit upon a nonnegotiable instrument. Objection is made to the reception of the instrument itself on the ground there is no sufficient averment in the declaration upon which they commenced suit to entitle them to put in proof. The objection at that point has been sustained. The court holds, now, there is no sufficient allegation in the declaration to entitle them to have the instrument received in evidence; consequently, you are directed to return a verdict for the defendants in this case. ”

First. The principal question in this case is whether the note in question is negotiable on its face. Counsel for plaintiff contend that it is, under the alleged general rule that a reservation of title does not destroy the. negotiability of a note; citing 4 Am. & Eng. Enc. Law (2d Ed.), p. 127, and authorities cited in footnote 4. Reliance is also had upon the case of Choate v. Stevens, 116 Mich. 28 (74 N. W. 289, 43 L. R. A. 277), as approved in Van Den Bosch v. Bouwman, 138 Mich. 624 (101 N. W. 832, 110 Am. St. Rep. 336).

We are unable to agree to the plaintiff’s contention that this case is ruled by Choate v. Stevens. So far as this record discloses, the note in question contains the entire contract of the parties, and it is obvious from a consideration of its terms that it presents the ordinary case of a conditional sale in which the title never passed to the defendants, and not a completed sale with a reservation of title in defendants by way of security only. Bunday v. Machine Co., 148 Mich. 10 (106 N. W. 397, 5 L. R. A. [N. S.] 475). On the other hand, the case of Choate v. Stevens was held to present a case of a completed sale with reservation of title by way of security only, and the judgment of the court proceeded upon that basis. We are of the opinion that this case falls within the rule of Wright v. Traver, 73 Mich. 493 (41 N. W. 517, 3 L. R. A. 50). In that case the court said:

“ The instrument before us has more the appearance of a contract of sale, with the title reserved in the property to the seller until paid for, than it has of a promissory note.”

And it was held that the condition contained in the note that, “if not paid when due, the property for which it is given shall be the property ” of the payee, destroyed its character as a promissory note, and reduced'it to a. mere contract.

The precise question involved here was before the supreme judicial court of Massachusetts, and it was held that an instrument otherwise a promissory note was converted into a mere contract by the condition, “ Said horse to be and remain the entire and absolute property of the said Sloan until paid for in full by me.” Sloan v. McCarty, 134 Mass. 245. We are of the opinion, therefore, that the court did not err in treating the instrument in question as nonnegotiable.

Second. We are of the opinion that the court erred in holding that there was no sufficient proof of assignment of the instrument to the plaintiff. Soper v. Mills, 50. Mich. 76 (14 N. W. 704); Merchants’ Nat. Bank v. Gregg, 107 Mich. 146 (64 N. W. 1052); Steere v. Trebilcock, 108 Mich. 464 (66 N. W. 342).

Third. The objection that the declaration does not sufficiently state the assignment might have been obviated by amendment if the court had held that otherwise plaintiff might maintain his action. Donovan v. Engine Co., 58 Mich. 38 (24 N. W. 819); Webster v. Williams, 69 Mich. 135 (37 N. W. 62). The plaintiff, however, having filed the note with the indorsement thereon by the payee, which note constituted its sole cause of action, and the defendants having alleged in their special notice in justice’s court “that the contract or obligation in writing mentioned in the plaintiff’s declaration was given by James Blanding as a part of the purchase price of a stock of goods therein described, and that the payee therein named transferred the same to the plaintiff,” etc., and having repeated this same allegation of a transfer in another portion of the notice, we think that it should be held that, under the liberal rules of pleading obtaining in justice’s court, the declaration was sufficient in this regard. Soper v. Mills, 50 Mich. 76 (14 N. W. 704).

For the error above pointed out, the judgment must be reversed and a new trial granted.

Ostrander, Hooker, Brooke, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    PRATT v. HAMILTON.
    .1. Evidence — Hearsay—Inoompetenoy.
    Testimony concerning the opinions and conclusions of onlookers, who did not appear as witnesses, concerning what neighbors thought of the condition of plaintiff at the time of an assault, and what the witness thought of plaintiff’s conduct, is hearsay, and incompetent in an action of trespass for the .assault.
    2. Same.
    What plaintiff told the physician who saw him some time after the injury, relative to the object with which he was struck, is incompetent and prejudicial in a case involving the issue whether he was struck by plaintiff's fist or his hammer.
    3. Same — Damages—Value.
    Damages are not recoverable for medical services the value of which or the amounts charged are not shown.
    Error to Wayne; Donovan, J.
    Submitted February 14, 1910.
    (Docket No. 143.)
    Decided May 7, 1910.
    Trespass vi et armis by Samuel Pratt against James Hamilton. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Lehman, Riggs & Lehman, for appellant.

      Thomas L. Dalton, for appellee.
   McAlvay, J.

This is an action on the case for damages, claimed to have been caused by an assault and battery committed by defendant upon the person of plaintiff. Plaintiff was foreman of a gang of men in the employ of the waterworks board of Detroit. Defendant lived at No. 848 Parker avenue in said city. His house was about 15 feet back from the sidewalk. He was, on the day of this altercation, at work building a new house on the second lot north from his residence, on the same side of the street. The lot between the two houses was vacant. Plaintiff was engaged with his men in digging a trench to connect the new house with the water main. Having laid out this work, as foreman, for his men, plaintiff was seen by defendant, who was on the south side of the roof of the new house, to go towards his residence. He passed in front of it and looked into the window. He went on by the front of the house and along the north side towards the west end, and turned to within a foot or two of the house. From his movements defendant saw that he was about to commit a nuisance, and called to him several times to stop and go to the shed. He paid no attention to this, but stopped at the end of the veranda, in front of a cellar window and urinated upon the side of the house. He admits that he heard defendant shouting at him. Defendant was angry, and threw a hammer which he had in his hand at him. It struck the ground about halfway to him. Defendant came down after his hammer, and walked towards plaintiff, using language more forcible than elegant. He asked him why he did not go into the house and do that into the piano. Plaintiff replied that he did not know the house was open. Defendant said, “For a pin I would slap your face, you dirty cur.” Plaintiff doubled up his fists and invited him to “dig in.” Defendant accepted the invitation, and struck plaintiff one blow on the jaw, which finished the engagement. Plaintiff was put hors de combat, and defendant ran down the street chased by the waterworks gang. There is a dispute in the case whether defendant struck plaintiff with his fist or the hammer. Plaintiff’s jaw was fractured. The result of the trial was a verdict and judgment for plaintiff. Errors are claimed to have been committed upon the trial, and defendant asks a reversal, bringing the case to this court by writ of error.

Defendant relies upon the erroneous admission of incompetent testimony and the refusal to strike it out, also upon errors contained in the charge of the court, statements made in the presence of the jury, and permitting the jury to consider elements of damage'claimed not to be supported by any evidence.

‘ One of the men working under plaintiff in digging the ditch for water pipe was allowed, over objection, to testify as to what they guessed among themselves defendant would do when he came down from the house, and conclusions they formed. Another witness was permitted to testify to practically the same thing. A witness was also allowed to testify what the neighbors thought of the condition of plaintiff after he was struck; also his opinion of the conduct of defendant. The court in each instance refused to strike such testimony from the record. This testimony was clearly hearsay and incompetent, and the court erred in not striking it from the case. The court also allowed the doctor, over objection, to testify that plaintiff said he'was hit with a hammer, and refused to strike out the testimony. This doctor, a dentist, saw plaintiff some length of time after the altercation. The question as to whether plaintiff was struck with a fist or a hammer was in sharp dispute, and was one of the principal disputes in the case. The court was in error in allowing this testimony to stand. It was hearsay and prejudicial.

The element of damage objected to was for doctors’ and dentists’ bills and nursing. Plaintiff’s attorney stated in his argument that he was entitled to recover for such items of damage. Upon objection that there was no proof of any such items the court held that there was no evidence of expense for nursing, but, both during the argument of the case and in his charge, stated that plaintiff was entitled to recover for doctors’ and dentists’ bills. The record does show that services were rendered plaintiff by both the doctor and dentist, but there is no evidence whatever as to the amount charged,- or the value of such services. In the absence of such evidence there was no basis upon which the jury was entitled to act, and such elements of damages could not be considered. The argument of counsel and the charge of the court objected to were improper. The court was in error upon both propositions. Other questions need not be discussed.

The judgment of the circuit court, for the errors pointed out, is reversed and a new trial granted.

Hooker, Moore, Brooke, and Stone, JJ., concurred.


author: Ostrander, J.

text:
    ELDRED v. ELLIOTT.
    1. Corporations — Stock and Stockholders — Inspection oe Books.
    A stockholder is entitled under the common law to inspect the books of a corporation of which he is a member.

    2, Same — Mandamus—Demand.
    The writ of mandamus will issue to require the secretary of a corporation to produce its books for the inspection of a stockholder, who, having learned that the company had made some kind of a transfer of its assets to another corporation and had ceased to transact business, demanded an opportunity to inspect them of the secretary and was passed along from person to person able to have afforded him information, and who made his request at the place where the president of the company advised him the books were stored, away from the principal place of business of the oompany.
    Certiorari to Kalamazoo; Knappen, J.
    Submitted January 11, 1910.
    ( Calendar No. 23,635.)
    Decided May 7, 1910.
    Mandamus by Willard H. Eldred, trustee, to compel James R. Elliott, secretary of the Michigan Traction Oompany, to produce certain books and records for an examination. An order granting the writ is reviewed by respondent on writ of certiorari.
    Affirmed.
    The Michigan United Railways Company obtained possession of the property of the Michigan Traction Company in the city of Kalamazoo, Michigan, under a conveyance in which a consideration of one dollar was named, and proceeded to operate and control the lines of electric railway previously held and controlled by the Michigan Traction Company, of which the relator was a stockholder. The president of the company stated in a letter written after the transfer that the books of the company were at Jackson, Michigan, in the vault of the Michigan United Railways Company. In a later conversation between the secretary of the company and relator’s attorney, at Jackson, the secretary refused to permit an examination of the books, for the purpose stated by the attorney, of ascertaining the value of the stock and whether a sale, lease or other arrangement had been made between the two companies, referring the attorney to a third person as acting secretary, who denied holding the office and refused to assume any responsibility but advised relator’s agent that the books were in the hands of the attorney of the Michigan United Railways Company.
    In a subsequent interview the attorney refused to permit an examination of any of the books but offered to purchase the stock on behalf of certain of his clients. An offer was made and accepted but the sale was never executed ; and the attorney of the railway company again refused the demand of relator to examine the books of the corporation. The Michigan Traction Company had ceased to transact business.

      George W. Mechem and Bernard J. Onen, for relator.

      Sanford W. Ladd (Merriam, Terkes, Simon & Ladd, of counsel), for respondent.

       As to right of stockholder to inspect books of corporation, see notes to Kuhback v. Irving Cut Glass Co. (Pa.), 20 L. R. A. (N. S.) 185, and Weihenmayer v. Bitner (Md.), 45 L. R. A. 446.

   Ostrander, J.

Relator, as trustee for the City Bank of Battle Creek, owns 166 shares of the capital stock of the Michigan Traction Company, of the par value of $16,600. Respondent is secretary of the company. Relator, in June, 1909, filed his petition in the circuit court for the county of Kalamazoo for a writ of mandamus commanding the respondent to produce, at the principal office of the said company at Kalamazoo, or at some other place, all of the hooks and records of said company at a time to be fixed by the court, and to permit relator to have access to and to inspect such books and records. An order to show cause was issued, which respondent moved to dismiss. The motion was denied, and the respondent answered. Certain issues were framed under the direction of the court, and as to them respondent demanded a trial by jury. The demand was refused. Thereafter said demand was, on July 13, 1909, allowed, and trial set for September 7, 1909, on which day respondent waived a jury. The court heard proofs and arguments, and by its order, in which it is recited that respondent waived findings of fact, determined:

“ That relator has a substantial interest and reasonable ground for desiring to inspect the books and records of the Michigan Traction Company, and that proper demand has been made therefor at reasonable time and place, and has been refused, and that said Michigan Traction Company is not carrying on any active business, nor maintaining any public or known office in the city or county of Kalamazoo.
“It is therefore ordered, adjudged, and decreed that respondent, as secretary of Michigan Traction Company, his successor or successors in such office, if any, and his or their employés, officers, and agents and attorneys, shall on September 17, 1909, between the hours of 10 o’clock in the forenoon and 3 o’clock in the afternoon of that day, bring into the office and deposit with the clerk of this court the following books and records of said Michigan Traction Company, to wit: The minute record book or books, showing the record of the meetings of the stockholders and directors, the stock transfer book, or other books showing the record of stock holdings, and any other book or books which contain any record of the transfer of the property of Michigan Traction Company to Michigan United Railways Company, or the consideration received therefor, or the disposition of whatever, if anything, was received therefor. Such books to remain and continue in the custody of the clerk of this court until the further order of the court; and relator, his counsel, and agents, to be permitted an inspection of said books and records, and said relator, his counsel and agents, may be permitted to inspect such other books and records of said Michigan Traction Company upon making a further application to the court in this proceeding ” — and issued its writ of mandamus accordingly.

This court, upon application of respondent, allowed the writ of certiorari to review the said proceedings. We have examined the record, which contains the testimony produced at the hearing. It is urged by respondent that no proper demand was made; that respondent was not advised of the purpose for which the inspection was sought; that it was not made at the proper time and place.

The conclusion of fact, stated in the order of the circuit court, is abundantly supported by the testimony. There might well have been added to the finding the conclusion that it was not proposed by those having custody of the records to permit relator to examine any of them. His common-law right to an inspection of the books is undoubted. Questions of some nicety have sometimes arisen respecting the conditions to be respected by a stockholder seeking to exercise his right. The courts have aimed, not at a denial of the right, but at exercise of the right under reasonable conditions. A demand by a stockholder for the inspection of all the books, records, and papers of a company which has apparently ceased to actively do business without closing up its affairs, may or may not be too broad, depending upon circumstances. The proper time and place for such a demand would not necessarily be controlled by considerations affecting the inspection of the records of an active concern in daily use. There is no question but that relator’s demand reached the proper persons, and that the reason for desiring inspection of the books and records was made apparent. He could not know in what book or books, record or records, the facts desired to be learned could be found. He learned that the Michigan United Railways Company was in control of and in possession of the property of the corporation, the stock of which he owned, whether by sale, lease, or other arrangement he did not know. He sought the facts for the purpose of ascertaining the value of the stock and the condition of the corporation. He seems to have been passed along, with his demand, from person to person, who apparently might, if they would, have afforded him information. He finally received an offer of one-half par for his stock. Later, in behalf of an officer of the company and an officer of the Michigan United Railways Company, he received a written offer of three-fourths par for the stock. He was unable to learn definitely who had the custody of the books and records, and in what place or places they were stored or kept. The objections to his demand are, under the circumstances, technical and without merit:

The order of the court below is affirmed, with costs.

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


author: Hooker, J.

text:
    REMY, SCHMIDT & PLEISSNER v. HEALY.
    1. Sales — Caveat Emptor — Warranty.
    A sale by sample, without fraud, gives rise to no implied warranty of fitness, quality or condition, and subjects the buyer to the common-law rule of caveat emptor; unless the seller is a manufacturer or grower or sells articles intended for food.
    2. Same.
    Such sale is, however, subject to a warranty that the goods to be furnished shall equal the sample, which the buyer is bound to inspect as he is to inspect the goods when they are present.

    3. Same — Warranty—Quality.
    The theory upon which the warranty as to quality is implied against the manufacturer is that he must know his methods of manufacture and the purpose for which his product is designed, and may be properly held to have contracted to produce a merchantable article for such purpose.
    4. Same.
    A dealer who buys to sell again is not presumed to possess such knowledge.
    5. Words and Phrases — Manufacturer.
    A manufacturer at common law is one who, through his skill and labor, shapes or combines material into a new product.
    6. Sales — Manufacturers—Dealers.
    Importers of goods who receive lines of samples, by which they sell the goods, or who order by such samples and keep the goods in stock are not manufacturer’s within the meaning of the common-law rule.
    7. Customs and Usages — Sales.
    A sale of shirt waists by sample is not subject to a custom to manufacture the goods with the warp lengthwise of the garment so as to relieve the buyer of his obligation to inspect.
    8. Sales — Fitness for Use.
    No warranty of fitness for wearing apparel can be implied.

    Error to Wayne; Murfin, J.
    Submitted February 15, 1910.
    (Docket No. 175.)
    Decided May 7, 1910.
    Assumpsit by Remy, Schmidt & Pleissner against Daniel J. Healy for goods sold and delivered. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.
    Navin, Sheahan & Bourke, for appellant.
    Bowen, Douglas & Eaman (Edward E. Wunsch, of counsel), for appellees.

       As to warranty on sale of goods by sample, see note to Nixa Canning Co. v. Lehmann-Higginson Grocer Co. (Kan.), 70 L. R. A. 653.

       As to implied warranty of fitness of particular article purchased from a dealer for a particular use, see note to Oil Well Supply Co. v. Watson (Ind.), 15 L. R. A. (N. S.) 868.
      As to implied warranty of fitness of a particular article purchased from a manufacturer or producer for a particular use, see note to Leavitt v. Fiberloid Company (Mass.), 15 L. R. A. (N. S.) 855.

   Hooker, J.

The plaintiffs were commission merchants in the city of New York. They were engaged in selling ladies’ wearing apparel, manufactured in Europe. They were wholesalers, and had samples of the lines of the manufacturer’s goods sold by them, from which their purchasers gave orders, and from which they gave their own orders to the manufacturer in Europe. The defendant was shown samples of a line of ladies’ shirt waists, and ordered a quantity. On their receipt, he paid a part of the purchase price and sold some of them, but after-wards discovered that they were unsalable for the reason that the embroidery was put on to run with the woof of the goods, instead of the warp. He returned the remainder to the plaintiffs, who returned them to defendant and he has since held them subject to their order. Defendant is unable to state that the goods received were not identical with the sample, but contends that it is difficult for an expert to tell without the most minute examination which way the warp and woof runs in a garment, and that therefore the defect was latent, that it is the general custom to embroider ladies’ waists with the warp, and that, being made-up goods, the vendor necessarily knew the use to be made of them. Defendant denied his liability for the goods returned, and sought to recoup damages. A verdict was directed for the plaintiffs, and defendant has appealed.

It is a settled rule that one who buys an article which is present and subject to his inspection cannot afterwards assert an implied warranty of fitness, quality, or condition, in the absence of fraud, except possibly where the seller is the manufacturer or grower, or the vendor of articles intended for consumption as food; “caveat emptor is the invariable maxim.” Mr. Mechem states that the rule of the common law is practically without exception that the buyer purchases at his own risk. 2 Mechem on Sales, § 1311. A note contains a long list of authorities supporting the text.

“ The rule is not altered by the fact that the examination or inspection will consume time, or is attended with labor and inconvenience. No exception to it can be admitted except ‘ where the examination at the time of the sale is, morally speaking, impracticable. * * * The mere fact of the inspection being attended with inconvenience or labor is not equivalent to its impracticability. If the purchaser desire to avoid it, and yet obtain the protection it would afford him, he must do so by exacting from the vendor an express warránty of quality.’ Hyatt v. Boyle, 5 Grill & J. (Md.) 110 (25 Am. Dec. 276). To the same effect is the language of Davis, J., in Barnard v. Kellogg, 10 Wall. (U. S.) 383.” 2 Mechem on Sales, §§ 1311-1318.

Where the sale is by sample there is a warranty — sometimes called express and sometimes implied — that the goods to be furnished shall be equal to the sample, and that is the extent of the warranty. The purchaser is under the same obligation to examine and inspect the sample, as we have seen that he is to examine and inspect the goods when present at the sale. 2 Mechem on Sales, § 1320, and note. It stands to reason, and the authorities agree that ordinarily this is the extent of the warranty, where the sale is by a dealer. We held in Kupfer v. Clothing Co., 141 Mich. 325 (104 N. W. 582), in an opinion by Mr. Justice Blair, that, “ where an order for goods from samples is filled by the dealer with goods equal to the sample, the buyer is bound to be satisfied, and cannot reject them for defects in quality.”

In making their case the plaintiffs called their business manager, who testified:

“ I reside in New York. I conduct a fancy linen department for Remy, Schmidt & Pleissner, commission merchants. * * * As I picked up one sample, I would show it to Mr. Healy. He would take the goods in his hands, look at them, say, ‘ All right, give me so many of these, so many of those,’ and so forth. This is the way Mr. Healy bought those goods. * * * The goods which were shipped corresponded with the samples in every detail. The goods which were sold to Mr. Healy were manufactured in foreign countries, and imported by Remy, Schmidt & Pleissner. * * * I am the manager of the linen department of Remy, Schmidt & Pleissner.
"Q. When an order comes to you for goods purchased of you by sample, what is the course that you take — I mean with reference to the manufacture of the goods? Mr. Healy comes to you, for example, gives you an order, what do you do then ?
“A. It is all up to me. I am the man that runs the business.
“Q. Who is it that makes the goods for you ?
“A. Manufactured on the other side by my direction.
“Q. What do you mean, across the ocean?
“A. Across the ocean, yes; imported stuff.
“Q. You give directions to them as to their manufacture, don’t you ?
“A. Yes.
"Q. Mr. Healy came to New York and selected these goods from you by sample ?
“A. Yes, sir.”

This was substantially all of the testimony on the subject.

Upon this testimony, it is now contended that the plaintiffs were manufacturers; i. e., that “according to Mr. Ollendorf’s testimony the waists were made according to his own directions so that his principals, the plaintiffs, stand in the place of the manufacturer. ” The term ‘ ‘ manufacturer,” in its ordinary acceptation, describes one who, through his skill and labor, shapes or combines material into a new product. Under various statutes, such as tax laws, the term may be extended and made to include others, for the purposes of such laws. Such cases are the following, relied on by defendant’s counsel: State v. Clarke, 64 Minn. 556 (67 N. W. 1144), where the statute defined the term “manufacturer” for the purpose of taxation. Hendy v. Soule, Deady (U. S.), 400 (Fed. Cas. No. 6,359), which held that one having the entire control of the manufacture and sale of a patented machine was a manufacturer within a certain tax statute. Commonwealth v. Manufacturing Co., 156 Pa. 510 (27 Atl. 13).

These cases are not in point on the question before us, which must be settled by the common-law rule as to what the distinction is between a manufacturer and a dealer. The theory upon which the warranty as to quality is to be implied against the manufacturer, and not against the dealer, is that the former must know his own methods of manufacture, and the purpose for which his product is designed, and may properly be held to have contracted to produce a merchantable article for such purposes. See Brenton v. Davis, 8 Blackf. (Ind.) 317 (44 Am. Dec. 769); Hoe v. Sanborn, 21 N. Y. 552 (78 Am. Dec. 163). But a dealer — i. e., one who merely buys to sell again (see Norris v. Com., 27 Pa. 494; Overall v. Bezeau, 37 Mich. 506) — is not presumed to possess such knowledge. He is an intermediary between the manufacturer and the consumer. He is not dependent for his profits on the labor he bestows upon his commodities, but on his labor and skill and foresight in watching the market.

The contention that these plaintiffs were manufacturers appears to rest upon the claim that they directed and dictated the method of manufacture, and rests on no more substantial foundation than the answer, “ Yes,” made by Ollendorff to the question, “You give directions to them as to their manufacture, don’t you ? ” When this is read in the light of the other testimony, it cannot reasonably be inferred that he did more than to order from the foreign manufacturer a given quantity of waists of a certain pattern, a sample of which had been previously furnished them by the manufacturer, and shown to the defendant. The learned circuit judge did not err in instructing the jury that plaintiffs were merely dealers, and not manufacturers.

Custom. Counsel for defendant allege error upon the refusal of the court to permit evidence to prove that this sale was made with reference to a fixed custom of manufacture — i. e., for the warp to run lengthwise and not crosswise of the garment — and that it was the practice of all merchants dealing in New York in relation to such goods to select only with a view to design, relying upon the custom of the manufacturers in regard to weave and texture. We understand this to mean that, in buying these waists, defendant merely examined the pattern of the garment relying upon the alleged common custom of manufacturers to have the warp run up and down instead of around the garment, and therefore a warranty that they should be so made should be found, and, incidentally, that defendant should be excused for not examining the sample as to quality and merchantability. In other words, that this contract should not be construed as the law ordinarily construes it, but at variance with the usual rule of law applicable. Such a contention was made in the case of Barnard v. Kellogg, 10 Wall. (U. S.) 383, where it was claimed that, by the custom of merchants and dealers in foreign wool, there was an implied warranty that the same is not falsely or deceitfully packed. This claim was sustained in the trial court, but was reversed on review. The court, speaking through the late Mr. Justice Davis, said:

“ It is to be regretted that the decisions of the courts, defining what local usages may or may not do, have not been uniform. In some judicial tribunals there has been a disposition to narrow the limits of this species of evidence, in others to extend them, and on this account mainly the conflict in decision arises. But if it is hard to reconcile all the cases, it may be safely said they do not differ so much in principle as in the application of the rules of law. The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its existence and contracted with reference to it. It is often employed to explain words or phrases in a contract of doubtful signification, or which may be understood in different senses, according to the subject-matter to which they are applied. But if it be inconsistent with the contract, or expressly or by necessary implication contradicts it, it cannot be received in evidence to affect it. ‘ Usage,’ says Lord Lyndhurst, may be admissible to explain what is doubtful; it is never admissible to contradict what is plain.’ Blackett v. Assurance Co., 2 Cromp. & J. 249. And it is well settled that usage cannot be allowed to subvert the settled rules of law. Whatever tends to unsettle the law, and make it different in the different communities into which the State is divided, leads to mischievous consequences, embarrasses trade, and is against public policy. If, therefore, on a given state of facts, the rights and liabilities of the parties to a contract are fixed by the general principles of the common law, they cannot be changed by any local custom of the place where the contract was made. In this case the common law did not, on the admitted facts, imply a warranty of the good quality of the wool, and no custom in the sale of this article can be admitted to imply one. ‘A contrary doctrine,’ says the court in Thompson v. Ashton, 14 Johns. (N. Y.) 317, ‘ would be extremely pernicious in its consequences, and render vague and uncertain all the rules of law on the sale of chattels.’
“ In Massachusetts, where this contract was made, the more recent decisions on the subject are against the validity of the custom set up in this case. In Dickinson v. Gay, 7 Allen (Mass.), 29 (83 Am. Dec. 656), which was a sale of cases of satinets made by samples, there were in both the samples and the goods a latent defect not discoverable by inspection, nor until the goods were printed, so that they were unmerchantable. It was contended that, by custom, there was in such a case a warranty implied from the sale that the goods were merchantable. But the court, after a full review of all the authorities, decided that the custom that a warranty was implied, when by law it was not implied, was contrary to the rule of the common law on the subject, and therefore void. If anything, the case of Dodd v. Farlow, 11 Allen (Mass.), 426 (87 Am. Dec. 726), is more conclusive on the point. There forty bales of goat skins were sold by a broker, who put into the memorandum of sale, without authority, the words ‘to be of merchantable quality and in good order.’
“ It was contended that, by custom, in all sales of such skins there was an implied warranty that they were of merchantable quality, and therefore the broker was authorized to insert the words, but the court held the custom itself invalid. They say:
“ * It contravenes the principle, which has been sanctioned and adopted by this court, upon full and deliberate consideration, that no usage will be held legal or binding on parties, which not only relates to and regulates a particular course or mode of dealing, but which also engrafts on a contract of sale a stipulation or obligation which is inconsistent with the rule of the common law on the same subject.’
“It is clear, therefore, that in Massachusetts, where the wool was sold and the seller lived, the usage in question would not have been sanctioned.
“ In New York there are some cases which would seem to have adopted a contrary view, but the earlier and later cases agree with the Massachusetts decisions. The question in Frith v. Barker, 2 Johns. (N. Y.) 327, was, whether a custom was valid that freight must be paid on goods lost by peril of the sea, and Chief Justice Kent, in deciding that the custom was invalid, says:
“ ‘Though usage is often resorted to for explanation of commercial instruments, it never is, nor ought to be, received to contradict a settled rule of commercial law.’
“In Woodruff v. Merchants' Bank, 25 Wend. (N. Y.) 673, a usage in the city of New York that days of grace were not allowed on a certain description of commercial paper was held to be illegal. Nelson, Chief Justice, on giving the opinion of that court, says:
“‘The effect of the proof of usage in this case, if sanctioned, would be to overturn the whole law on the subject of bills of exchange in the city of New York;’ and adds: ‘ If the usage prevails there, as testified to, it cannot be allowed to control the settled and acknowledged law of the State in respect to this description of paper.’
“And, in Beirne v. Dord, 1 Seld. (N. Y.) 95, the evidence of a custom that in the sale of blankets in bales, where there was no express warranty, the seller impliedly warranted them all equal to a sample shown was held inadmissible, because contrary to the settled rule of law on the subject of chattels. But the latest authority in that State on the subject is the case of Simmons v. Law, 3 Keyes (N. Y.), 219. That was an action to recover the value of a quantity of gold dust shipped by Simmons from San Francisco to New York on Law’s line of steamers, which was not delivered. An attempt was made to limit the liability of the common carrier beyond the terms of the contract in the bill of lading by proof of the usage of the trade, which was well known to the shipper, but the evidence was rejected. The court, in commenting on the question, say:
“ ‘A clear, certain, and distinct contract is not subject to modification by proof of custom. Such a contract disposes of all customs by its own terms, and by its terms alone is the conduct of the parties to be regulated, and their liability to be determined.’
“ In Pennsylvania this subject has been much discussed, and not always with the same result. At an early day the supreme court of the State allowed evidence of usage that, in the city of Philadelphia, the seller of cotton warranted against latent defects, though there was neither fraud on his part nor actual warranty. Snowden v. Warder, 3 Rawle (Pa.), 101. Chief Justice Gibson, at the time, dissented from the doctrine, and the same court, in later cases, has disapproved of it (Coxe v. Heisley, 19 Pa. 243; Wetherill v. Neilson, 20 Pa. 448), and now hold that a usage, to be admissible, ‘ must not conflict with the settled rules of law, nor go to defeat the essential terms of the contract.’
“ It would unnecessarily lengthen this opinion to review any further the American authorities on this subject. It is enough to say, as a general thing, that they are in harmony with the decisions already noticed. See the American note to Wigglesworth v. Dallison, 1 Smith’s Leading Cases, 545, where the cases are collected and distinctions noticed.”

As said by 2 Mechem on Sales, § 1326, and shown by the above-cited case:

“How far usage may affect the question is not, perhaps, entirely settled. It is clear, however, that local usages cannot defeat the express terms of the contract, nor can they contravene the settled principles of the law. If, therefore, the sale was made under such circumstances that the law does not impute a warranty, usage will be ineffectual to add one; if, under the circumstances, the law does raise a warranty, usage will not be permitted to defeat it.”

It is also urged that there was a warranty of fitness of the waists for the purpose for which they were made— i. e., for use as wearing apparel — which use plaintiffs must have known to have been intended. We are of the opinion that this contention should not prevail.

In Hudson v. Roos, 72 Mich. 363 (40 N. W. 467), the mirror furnished had a latent defect. The court said that the particular purpose for which she purchased was made known. This cause might apparently have been and probably was decided upon the points, first, that the glass furnished did not equal the sample; and, second, that it was or was not replaced within an agreed time within which plaintiff undertook to remove the latent defect through resilvering the mirror.

In the present case, while it cannot be denied that the vendor must have understood that waists were made for wear, that was not the particular purpose for which defendant purchased, if his purpose should make any difference. The waists were evidently purchased for sale, and while it is manifest that unfitness for wear would also militate against their sale, just as unfitness of any article for the use that it was designed for would necessarily impair its value in the market and perhaps to the extent of making it unsalable, the fact that a vendor who sells by sample must know that the goods are bought for the purpose of resale has not been considered sufficient to raise an implied warranty of fitness for use or sale, where the purchase is from a dealer. The cases cited, including our own later case of Kupfer v. Clothing Co., 141 Mich. 325 (104 N. W. 582), indicate this. It would be hard to find a case closer in point than the one last cited. A dealer sold corduroy by sample. Its obvious purpose was to sell for clothing. Owing to a latent defect, it was worthless for this or any other purpose, and necessarily unmerchantable, but we held that equality to the sample was the extent of the warranty. See, also, the following cases cited by counsel: Seitz v. Machine Co., 141 U. S. 510 (12 Sup. Ct. 46); Pratt v. Metzger, 78 Ark. 177 (95 S. W. 451); Gossler v. Sugar Refinery, 103 Mass. 334; Wisconsin Red Pressed-Brick Co. v. Hood, 54 Minn. 543 (56 N. W. 165).

We understand that the defendant bases his claim upon the proposition that the plaintiffs are to be considered the manufacturers of the waists. As a fact, it is self-evident that they have nothing to do with the manufacturing. They are nothing more than dealers, who, receiving lines of samples of goods which the manufacturer makes, sell them by sample, and either carry them in stock, or order after sales are made. We think that such dealers cannot be called “ manufacturers ” in any sense, and we' are aware of no case which would justify such a holding. We find nothing in the record that would justify the inference that the contract was one made with the foreign concern, through agents. It appears to have been an order given to dealers in this country, who obtain and import their goods to fill their orders from a foreign manufacturer or dealer.

To recapitulate, we find:

First. That these plaintiffs were dealers, and not manufacturers.

Second. That the sale was by sample, and no error is assigned upon the proposition that the goods furnished equaled the sample.

Third. Under the proofs, there was no warranty that the goods should be merchantable, or of their fitness for use by defendant’s customers.

Fourth. No error was committed in rejecting the offered testimony of custom or usage.

The judgment is affirmed.

Moobe, McAlvay, Bbooke, and Stone, JJ., concurred.


text:
    ROGERS v. SCHRAM.
    1. Equity — Jurisdiction—Multiplicity of Suits.
    A bill of complaint showing that the complainant claims title through the foreclosure of a mortgage of a deceased party, whose three children claim an interest in fee in the property, denying the right of their parent to mortgage the premises, and also showing that ejectment has been commenced by two of the children, and that a third action is threatened, and failing to show that complainant has established his title at law, does not confer jurisdiction on the court of equity to prevent a multiplicity of suits.
    3. Same.
    Such a bill only lies to enjoin actions at law where the plaintiff has established his right at law, or where the persons who controvert it are so numerous as to render the issue under the direction' of the court indispensable and prevent a multiplicity of suits.
    3. Same — Equitable Right.
    In a case where the complainant claims no equitable title, but only a legal estate, the action of ejectment will not be enjoined.
    4. Same.
    Nor can the bill be sustained where the rights of the parties depend upon a question of law.
    5. Estates of Decedents — Executors and Administrators — Equity.
    Probate court, not equity, is the forum in which to determine any claim the complainant might have against the decedent’s estate for breach of covenants in a mortgage.
    6. Equity — Inconsistent Theories.
    Inconsistent theories are presented by a bill of complaint which avers title to premises under a mortgage foreclosure, and claims an equitable lien on the deceased mortgagor’s estate for breach of covenants of warranty.
    Appeal from Barry; Smith, J.
    Submitted February 15, 1910.
    (Docket No. 169.)
    Decided May 7, 1910.

      Bill by Daniel W. Rogers against Nellie M. Schram and others to quiet title to certain land, and to enjoin an action of ejectment. From an order overruling a demurrer, defendants appeal.
    Reversed, and bill dismissed.

      Thomas Sullivan and Alonzo D. Gadwallader, for complainant.

      Colgrove & Potter, for defendants.
   McAlvay, J.

This is an appeal from an order overruling a demurrer to the bill of complaint. Complainant claims to be the owner in fee of certain parts of lots in the city of Hastings, in Barry county, which title he alleges he obtained by and through certain regular proceedings to foreclose, by advertisement, a certain mortgage upon said lots, dated April 12, 1899, containing a warranty of title given to him by Daniel C. Warner, who obtained title in fee thereto through the last will and testament of one Hannah Minerva Mixer, who at the time of her death was the owner in fee thereof; and said complainant further claims and alleges that, after the equity of redemption expired under said foreclosure, he received a valid sheriff’s deed, and under it entered into full and complete possession of said lots, which possession was surrendered to him by said Daniel C. Warner during his lifetime, on August 10, 1903, and he has ever since continued to hold such possession; that Daniel C. Warner as executor, under the will mentioned, administered the estate of Hannah Minerva Mixer, paying all claims, and leaving the premises in dispute and personal estate amounting to $1,700.14 to be assigned to him as appears from his final account which was allowed October 17, 1890; that Daniel C. Warner died March 2, 1909, leaving a last will and testament devising and bequeathing his property equally to two daughters, who are among the defendants named, he having theretofore provided for his wife and two sons. Of this will the daughter, Nellie M. Schram, was the executrix. One son and two daughters survived him. This estate is being duly administered and the final account has been filed, showing $357.97 as a balance after paying all claims and expenses, part of which balance has already been distributed. Complainant further alleges that the three children of Daniel C. Warner claim by virtue of th8 will of Hannah Minerva Mixer to own each an undivided one-third in fee of the premises he claims through the proceedings of foreclosure as above stated, and that two of them have already commenced against him an action in ejectment to recover possession of an undivided two-thirds of the same, and the third heir is liable at any time to commence a like suit for a one-third interest.

Complainant further alleges, if in these suits it should be determined that the plaintiffs were as owners entitled to recover, then he would be entitled to recover in a suit at law damages for the breach of warranty of title contained in his mortgage against the estate of Daniel C. Warner to the amount of the personal property remaining in said estate, or against the legatee, to the amount each has received, up to the value of the premises, which at the time he took the mortgage was $800, and at the present time $1,000, and that he has expended in repairs $100; that the personal property on hand in said estate ($357.97) should be declared a lien upon said land in his favor, to the extent of the interest of these three heirs, should they, or any of them, recover in their ejectment suits. He prays that all the allegations of his ownership narrated may be declared true, that he may be declared entitled to the possession of these premises, and that the defendants may be held to have no title or interest therein, and for general relief; also, that the prosecution of the ejectment suit may be restrained pendente lite.

Defendants demurred to this bill of complaint, upon several grounds which may be condensed, as follows: Because complainant has a full, adequate, and complete remedy at law. Because he has not stated in his bill such a case as entitles him to relief in equity; there being no allegations of fraud or that the defendants are financially irresponsible.

In answer to the first contention, complainant insists that his remedy at law is not full, adequate, and complete; that he is in fear that the other heir may bring ejectment for her claimed one-third; and that a court of equity should retain jurisdiction to relieve from a multiplicity of suits. In this case one suit has been brought and another one may be brought. The complainant has not established his' right at law. The controversy is between parties claiming legal title to lands through the same source. Relative to cases relieving from a multiplicity of suits, Chancellor Kent in Eldridge v. Hill, 2 Johns. Ch. (N. Y.) 281, said:

“A bill of peace, enjoining litigation at law, seems to have been allowed only in one of these two cases: Either where the plaintiff has already satisfactorily established his right at law, or where the persons who controvert it are so numerous as to render the issue under the direction of this court indispensable to embrace all the parties concerned, and to save multiplicity of suits.”

The facts in the case at bar do not bring it within either one of the classes named. Where the rights of the parties depend upon a question of law merely, a bill cannot be sustained to restrain defendant from suing at law. Murphy v. Mayor, etc., of Wilmington, 6 Houst. (Del.) 108 (22 Am. St. Rep. 345). A similar case to the one under consideration is Shaw v. Chambers, 48 Mich. 355 (12 N. W. 486), where a bill was filed to enjoin an ejectment suit. Justice Cooley, speaking for the court, said:

“ His defense at law in that case would be perfect and there is no justification for causing the trouble and expense of two suits when one would be adequate for all the purposes of justice. The proper tribunal for the trial of titles to land is the common-law court, and the equitable jurisdiction is to be invoked only when the common law is inadequate to give full relief. * * If the suit at law involves but a portion of the controversy, or if after its determination there may remain an apparent title of record clouding the legal title, there may be just occasion for invoking the aid of equity; but these are exceptional oases, and the circumstances which make them so do not exist here.”
In a case where a party was complaining that, as defendant in ejectment he would not have perfect relief, this court said:
“ Undoubtedly where a party holding a legal title seeks to enforce it against a person in possession claiming under an invalid title, or one which the party complaining claims to be such, the only proper remedy is ejectment, and that remedy is perfect.” King v. Carpenter, 37 Mich. 365.

Complainant is claiming no equitable title, but a title in fee simple, and only legal titles are involved. In such case equity will not restrain an action of ejectment. Lott v. Lott, 146 Mich. 580 (109 N. W. 1126, 8 L. R. A. [N. S.] 748).

Complainant, however, contends that, should plaintiffs succeed in the ejectment suit, he will be left remediless, because by reason of the breach of warranty of title by Warner in his mortgage he will lose the amount for which he foreclosed, and also amounts expended for repairs, all of which would become a claim against the estate of Daniel C. Warner which defendants should account for. This would appear to be asserted in support of his contention that this bill would avoid a multiplicity of suits, and also that the bill is a bill for an accounting as argued at length in his brief. Complainant filed no claim against the estate of Warner. The probate court was the proper forum to determine a claim arising from a breach of contract. He seeks to impound the property of the estate, and have a court of equity determine such a claim against it. A court of equity cannot do this, nor can complainant, until he becomes a judgment creditor, interfere with property in the hands of Warner’s executrix. Rollins v. Van Baalen, 56 Mich. 615 (23 N. W. 332); Tyler v. Peatt, 30 Mich. 65; McKee v. Garbage Co., 140 Mich. 502 (103 N. W. 906). These two theories are inconsistent in any event. He cannot own the fee in these premises and be entitled to an equitable lien upon the proceeds of the Warner estate. He claims relief upon both theories.

Our conclusion is that complainant by his bill did not set forth a case entitling him to equitable relief, and that he has a full, complete, and adequate remedy at law. We have not thought it necessary to discuss the will of Mrs. Mixer. Whether it gave to complainant’s mortgagor an estate in fee as complainant claims, or only an estate for life with remainder over to Warner’s surviving heirs, will be determined elsewhere. The order and decree overruling the demurrer is reversed, and a decree will be entered in this court dismissing the bill, and dissolving the injunction, with costs of both courts to defendants.

Hooker, Moore, Brooke, and Stone, JJ., concurred.


text:
    HUGHES v. CITY OF DETROIT.
    1. Municipal Corporations —Negligence—Sidewalk Injuries —Streets and Highways.
    Under the statute requiring municipalities to keep the streets reasonably safe and fit for public travel, the city cannot relieve itself of liability by turning a street over to a paving contractor.

    2. Same — Constructive Notice.
    In an action for injuries sustained at a street crossing where paving was in progress, and the contractor had placed a defective plank for the use of the public in descending into the excavation, evidence that the plank had remained at the place of the accident several days before the injury, that work had been suspended about ten days, and had been done under the supervision of the department of public works, which was authorized to put an inspector in charge, justifies the submission to the jury of the question of notice to the municipality.
    3. Same — Contributory Negligence — Questions of Law and Fact.
    Whether plaintiff, who bad previously crossed the defective plank, was guilty of contributory negligence was a quesiion of fact.
    4. Evidence — Cross-Examination—Interest.
    Prejudicial error is committed by plaintiff’s counsel who shows on cross-examination that a witness for the defendant, in an action for personal injuries received on a defective plank which the paving contractors supplied for the use of the public, was one of the contractors and had given an indemnity bond to secure the municipality against negligence in the conduct of the work, especially, when, in argument, comment was made upon the effect of such bond.
    5. Trial — Argument—Conduct of Counsel.
    It is reversible error to argue to the jury, on the question of damages for personal injuries, that they or members of their families would not suffer similar injuries for much more money than plaintiff asks.
    Error to "Wayne; Donovan, J.
    Submitted February 16, 1910.
    (Docket No. 45.)
    Decided May 7, 1910.
    Case by Elizabeth Scott Hughes against the city of Detroit for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Edmund Atkinson (P. J. M. Hally, of counsel), for appellant.

      George P. Codd and A. B. Hall, for appellee.

       As to liability of municipal corporation for defects or obstructions in streets, see note to Elam v. Mt. Sterling (Ky.), 20 L. R. A. (N. S.) 512.

   McAlvay, J.

Plaintiff recovered a judgment against defendant in an action for damages for personal injuries. Defendant upon a writ of error has appealed to this court for reversal on account of errors committed upon tbe trial.

At .the time of the injury, and for some time previous, Townsend avenue in said city, which runs north and south, was being paved with cedar blocks on concrete foundation from Mack avenue north to Gratiot avenue, by W. W. Hatch Sons’ Co., under contract with the department of public works of Detroit. Plaintiff lived on the west side of Townsend avenue between Mack avenue and Sylvester avenue, about 100 feet south of Sylvester avenue. Plaintiff was injured July 1, 1907. In constructing this pavement the excavating is first done, the roadbed prepared to receive the concrete foundation, and the blocks are then put in. At the time of the injury the concrete foundation was finished from Gratiot avenue south nearly to Sylvester avenue. Grading across and south of Sylvester avenue past plaintiff’s home had been completed 10 days. The concrete foundation at and south of Sylvester avenue had not been put in. Curb had been set the entire length of the street. Cedar paving blocks had been piled all along the street between the curb and the sidewalk. Work on this pavement at Sylvester avenue and south had been suspended for about 10 days, and was not resumed at the time of the accident. At the southeast corner of Townsend and Sylvester avenues a pile of earth about one foot high had been thrown out of the excavation on the crosswalk over Townsend avenue. The excavation was at least 20 inches deep. Two planks had been placed side by side at this point; th6 lower ends resting on the bottom of the excavation, and the upper ends upon the top of the curb. Plaintiff had frequently gone over the street while the work was progressing. Across the roadway of Sylvester avenue on the east side there was a barrier, and red lights were hung. Towards evening on the day of the accident plaintiff left her home on Townsend avenue, on her way to her sister’s home on Sylvester avenue to the east. She proceeded north on the west side of Townsend until she came to Sylvester, and, turning east, crossed Townsend by going into the excavation and up these planks, then east along the south side of Sylvester to her sister’s. She returned in a short time by the same route, carrying a basket in her hand. At the intersection of these streets, before starting to cross Townsend, she stopped to talk with Mr. Grundy, who was sitting on the steps of his store at that corner. She then proceeded on her way home, and, reaching the planks, got as far as the middle when, according to her testimony, the plank she was walking on broke, throwing her to the ground and injuring her foot. It was not yet dark, and she could readily see where she was going. The electric light at this corner was lighted. These facts do not appear to be disputed, except as to whether the plank broke with the weight of plaintiff, or whether she slipped from the plank. The plaintiff claimed and offered proof tending to show that these planks were put at this crossing by a watchman of the paving contractor, and that they had been kept there.

When the testimony in the case was closed, defendant moved for an instructed verdict, on the ground that no negligence on the part of defendant was shown, for the reason that the wrongdoer was not connected with the contractor, or with the city; that the city had no notice of this condition of the street; that plaintiff was guilty of contributory negligence. This motion was denied, and the case was submitted to the jury. The trial resulted in a verdict and judgment for plaintiff. A motion for a new trial was made upon the ground that the verdict was excessive, and for specified errors which occurred during the trial, and which are also relied upon before this court. This motion was also denied. Errors are assigned upon the refusals to grant these motions, certain .portions of the charge as given, and refusals to charge, upon exception taken to the admission of evidence, and argument of counsel.

We shall first consider whether from this record the court can say, as a matter of law, there was no question of defendant’s liability to submit to the jury. The condition of the street at that time and place is not in dispute. Who put these planks there, how many days previous planks had been placed there in the same manner, and how plaintiff received her injury, were in dispute. The witness Grundy, who lived and kept a store on this corner, and who helped plaintiff after her fall, testified that he saw the watchman put them there that evening before the accident; also:

“They had thrown quite a lot of earth up on the crosswalk oyer Sylvester, and kept the planks up. The grade being taken out made a pretty deep step in there; in the neighborhood of 20 inches anyway, maybe more.”

His wife testified that she had seen the watchman “ fix walks there, how many days before I cannot say; simply laid boards there for people to walk up and down.”

We cannot say that there is no evidence tending to show that these planks had been placed and remained more or less continuously for several days prior to the accident. The work had been suspended about 10 days. The contract for this paving contained the usual provisions relative to putting up lights, etc. The work was to be done under the supervision and direction of the department of public works at all times. The contractor was required to have a representative upon the street day and night continuously. If the work was delayed or interrupted for any cause, defendant was authorized to put an inspector in charge of the street. The record shows that the crossing at this crosswalk over Townsend avenue was not barricaded, nor any lights upon it. The earth on the crosswalk a foot high cannot be called a barricade, or held to have been placed there for that purpose. The barricade and the lights were upon the roadway of Sylvester avenue.

This court has repeatedly held that, under the statute requiring it to keep the streets reasonably safe and fit for public travel, the city cannot relieve itself of liability by turning a street over to a contractor. The work here had been interrupted for about 10 days, and a fair inference might be drawn from the testimony that this condition as to these planks existed during a considerable portion of that time. There was evidence to submit to the jury, on the question of notice of this condition to defendant. Plaintiff had crossed over there in the morning of the same day, which fact might be considered as bearing upon the question of the use of the crossing in its then condition by the public. Upon this branch of the case we do not think it distinguishable from Beattie v. City of Detroit, 129 Mich. 20 (88 N. W. 71), and Barker v. City of Kalamazoo, 146 Mich. 257 (109 N. W. 427). The question of contributory negligence, under the circumstances, was a question of fact for the jury, and also the question of the condition of the plank in question.

Error is assigned upon the allowance by the judge of cross-examination by plaintiff’s counsel of defendant’s witness Talbot, relative to an indemnity bond. This examination is defended upon the ground that it was proper to show the interest of this witness. The witness was open to attack, on account of his interest in connection with the contractor, but to show his interest in the contract, it was not necessary to examine him as to the indemnity bond. He had already testified without reserve that he had an active interest in this contract to an extent of one-third of the profits. To permit the questioning of this witness relative to this bond, over the repeated objection of counsel, was reversible error, and the conduct of plaintiff’s counsel in the use made of it, on the argument, in saying, “Why does the city take this bond from the contractor if it is not to cover just such cases as this ?” indicates the purpose of the improper cross-examination, and was highly prejudicial. Reference to our former opinions on this subject makes comment unnecessary. Clink v. Gunn, 90 Mich. 140 (51 N. W. 193); Turner v. Foundry Co., 97 Mich. 166 (56 N. W. 356); Kerr v. Manufacturing Co., 155 Mich. 191 (118 N. W. 925).

Other parts of this argument objected to are:

“ Would you take all the money in the city of Detroit and have your sister go through with what this young woman has gone through with ? * * * You have anybody crippled in the family, or where their usefulness is gone, and see how they stand the care, and wear away whatever affection there may be. * * * As my associate said, you would not take that injury for all the money that could be piled up in front of us.”

In giving a few excerpts from this argument we have omitted everything which was claimed to be in answer to defendant’s argument, but by doing so we do not wish to be understood that it is approved. That this argument above quoted was inflammatory and prejudicial is apparent. It was cause for reversal. Ward v. Reed, 134 Mich. 393 (96 N. W. 438); Hillman v. Railway, 137 Mich. 184 (100 N. W. 399).

We do not consider it necessary to discuss other errors assigned which are confined largely to the charge of the court. Some of them will be controlled by this opinion, and others will not be likely to occur on another trial.

The judgment is reversed, and a new trial ordered.

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


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    FINNEY’S ORCHESTRA v. FINNEY’S FAMOUS ORCHESTRA.
    Trade-Marks and Trade-Names — Fraud — Equity — Unfair Competition.
    Biembers of Finney’s Orchestra who, after the founder’s death, in accordance with his will, maintain the name and organization and continue to carry on business as a musical organization, have a right to the exclusive use of the name and will be protected by injunction against former members who organize a corporation under the name of Finney’s Famous Orchestra, and represent themselves to be the original association ; the attempt being unfair competition and a fraud on the public.

      Appeal from Wayne; Donovan, J.
    Submitted February 16, 1910.
    (Docket No. 54.)
    Decided May 7, 1910.
    Bill by Finney’s Orchestra against Finney’s Famous Orchestra, Fred S. Stone and others to enjoin the use of a trade-name. From a decree for complainant, defendants appeal.
    Affirmed.

      Stellwagen & MacKay, for complainant.

      William Look (Duncan O. Beath, of counsel), for defendants.
   McAlvay, J.

The parties to this controversy are Michigan corporations. The incorporators of complainant for many years before incorporation acted together in a voluntary association under the same name as incorpoxated, and claim that defendant, without any right, and intending to injure their corporation in its business, etc., wrongfully adopted the name of “Finney’s Famous Orchestra,” and have by falsely claiming to be the original Finney’s Orchestra greatly injured complainant in its business. Complainant claims the sole right to use the name “Finney’s Orchestra,” and filed its bill of complaint against defendant, asking that it be perpetually enjoined from using the name “Finney’s Orchestra” or the name “Finney” in any way, or representing itself to be the original “ Finney’s Orchestra.” Defendant answered this ¡bill of complaint by answer in the nature of a cross-bill, praying affirmative relief, and the benefit of a demurrer. Answers were filed to the cross-bill by complainant and ‘by the 23 members of complainant organization. The ¡record shows a motion on the part of cross-complainant ¡to strike the answer of the members of the complainant corporation from the files. No disposition appears to have been made of this motion by any formal order. It does appear that it was “held pending the hearing of case.” Replications were later filed by complainant and defendant. The issues joined were heard before the Wayne circuit court, in chancery, and a decree granted to complainant. Defendant appeals. The main contention in the case is upon the facts presented.

We agree with the findings and conclusion of the trial judge. The evidence preponderates greatly in favor of complainant, the membership of which includes all but three of the entire number of a voluntary association, known since the year 1899 by the name under which they have now become a legal organization under the laws of this State. Theodore Finney during his lifetime organized and conducted an orchestra known as “ Finney’s Orchestra ” in the year 1864. This he continued to manage and conduct until his death, April 17, 1899. By his will he gave his music and musical instruments to his friend, Frank Mosby, with the request “to keep up the organization of the Finney Orchestra during his natural life.” Mosby proceeded at once to do this, with the assistance of his fellow associates. The old members, and such as were considered competent by them to be added from time to time, continued to act together with this common purpose under the name of Finney’s Orchestra. Each year elections were held, and officers and a manager were elected. Mr. Mosby was elected for seven years as president. Fred S. Stone was elected manager, until the election held in January, 1908, when Mr. Shook was elected to that office by a large majority. Mr. Stone’s resignation was accepted January 18, 1908. Two of his brothers also withdrew. During these years the record shows without dispute that this voluntary association existed and continued to do a successful business under the'name and style of ‘ ‘ Finney’s Orchestra. ” Twenty-three remaining members, desiring to become a body corporate known as “Finney’s Orchestra,” under the law of this State, on January 25, 1908, made, executed, and filed articles of association in the office of the secretary of State, which, after being amended to conform with the statute, were finally recorded February 7, 1908. In the meantime ex-manager .Stone and three brothers incorporated as “Finney’s Famous Orchestra,” on January 27, 1908, and this organization, holding itself out as the “Original Finney’s Orchestra,” has caused the injuries complained of. It will be of no benefit to the profession to review this evidence. Suffice it to say, we find no single contention of defendant sustained. It may be fairly inferred from the record that the only reason for the organization of defendant association was to accomplish exactly what is charged in the bill of complaint. The name of this organization was the property of those who made it valuable, and its use by others “different from those who earned a reputation thereunder would be a fraud upon the public.” Messer v. Fadettes, 168 Mass. 140-144 (46 N. E. 407, 37 L. R. A. 721, 60 Am. St. Rep. 371). Such trade-names are protected on the ground of unfair competition. Hopkins on Unfair Trade, §§ 52, 53; Weinstock, Luhin & Co. v. Marks, 109 Cal. 529-537 (42 Pac. 142, 30 L. R. A. 182, 50 Am. St. Rep. 57). In the last case cited the court said:

“Although there can be no property right in a trade-name which is not the subject of trade-mark, yet it is a fraud on a person who has established a trade and carried it on under a given name that some other person should assume the same name, or the same name with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with one who has given a reputation to the name; and an injunction will issue to prevent such fraudulent infringement of the trade-name.”

The decree of the circuit court is affirmed, with costs.

Hooker, Moore, Brooke, and Stone, JJ., concurred.


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    ROBSON v. ROBSON.
    1. Divorce — Amendment of Answer — Rehearing—Appeal and Error.
    On motion made after an appeal from a decree of divorce granted to appellant’s wife, praying for leave to amend the answer so as to show that a prior decree of divorce was invalid because proofs were taken and decree entered within four months, and that her marriage with appellant was void, the appellant is held to have been guilty of laches, on undisputed testimony that before filing the bill he had denied the legality of his marriage, and that his attorney was acquainted with the facts concerning complainant’s previous decree.
    2. Same — Extreme Cruelty.
    In this cause the decision of the circuit judge that complainant is entitled to a divorce for extreme cruelty of her husband is held, on review of the facts, to be warranted.
    3. Same — Alimony.
    An award of about §4,000 permanent alimony to a wife who is granted a divorce from her husband whose property amounts to §17,000 is reasonable, in view of the fact that in her marriage she appears to have been actuated by mercenary motives.
    Cross-appeals from Wayne; Donovan, J.
    Submitted February 10, 1910.
    (Docket No. 20.)
    Decided May 7, 1910.
    Bill by Bertha E. Robson against George W. Robson for a divorce. From the decree rendered, both parties appeal.
    Modified.

      James H. Pound, for complainant.

      John P. Kirk, for defendant.
   Blair, J.

This is an appeal from a decree for divorce granted upon the ground of extreme cruelty, and awarding to the complainant real estate and personal property amounting, as valued by the court, to one-quarter of the value of the property of the defendant. From the decree both parties have appealed; the defendant contending that he was entitled to a decree for a divorce from the complainant, as prayed for in his answer by way of cross-bill, and the complainant contending that the court’s award of alimony was inadequate.

Since the appeal was perfected, defendant has made a motion to remand the record to the circuit court with permission to defendant to amend his answer by alleging as matters of defense that the marriage of defendant to complainant was void, for the reason that, at the time of entering into the same, complainant was the lawful wife of one Frank W. Beach, and had not obtained from said Beach a legal divorce, for the reason that the decree of divorce against said Beach and in favor of said complainant was granted by the court in less than four months from the time of filing the bill of complaint to obtain the same; also, that defendant be allowed to amend his cross-bill and to ask by way of relief that two deeds executed by the defendant through an intermediary to himself and said complainant as tenants by entirety be set aside and decreed to be the sole property of defendant; also, that defendant be allowed a rehearing in the circuit court, and be permitted to put in his proofs as to the illegality of said decree of divorce from the said Frank W. Beach; also, that upon the entering of a decree in the cause after being remanded, that either party upon appeal shall only be required to print the additional proofs.

The calendar entries in complainant’s suit for divorce from her former husband, Frank W. Beach, are as follows:

“Dec. 3rd, 1898 — Bill filed, subpoena and injunction issued.
“Dec. 7th, 1898 — Subpoena and injunction returned, served and filed.
“Dec. 9th, 1898 — Notice of contest by prosecuting attorney filed.
“Dec. 9th, 1898 — Order entering prosecuting attorney appearance filed.
“Dec. 12th, 1898 — Appearance of defendants by M. J. Cavanaugh filed.
“Dec. 18th, 1898 — Withdrawal of appearance of defendant D. B. Greene by M. J. Cavanaugh filed.
“ Dec. 13th, 1898 — Appearance of D. B. Greene by J. W. Babbitt entered.
“Dec. 23rd, 1898 — Stipulation of discontinuance as to William Beach and Louisa Beach filed.
“Mar. 11th, 1899 — Decree granted and entered in Chancery Liber No. 2 on page 282.
“Mar. 13th, 1899 — Certificate of judge of prosecuting attorney has contested cause filed.
“Apr. 18th, 1899 — Petition to set aside decree filed.
“Apr. 26th, 1899 — Cause enrolled.”

The decree in question recites:

“This cause having been brought on to be heard upon the bill of complaint filed therein, answer, and replication and upon pleadings and proofs had thereon taken in open court,” etc.

It will be observed that the calendar entries do not support the recital of the decree as to the filing of an answer or replication, nor does there appear to have been any entry of a default. The affidavits of the parties filed on the motion to remand show that the petition filed on April 18, 1899, to set aside the decree was based upon the alleged facts that no answer of the defendant Beach had ever been filed in said cause or the default of said defendant entered for failure to plead or answer to the bill of complaint, and for the further reason that said decree had been granted in less than four months from the time of the filing of the bill of complaint in said cause. So far as the proofs show, nothing appears to have been done in furtherance of this petition other than that it was served- upon the solicitor for the complainant, but complainant deposes that such service never came to her attention, and she had no knowledge whatever of the fact that such a petition had been filed, and her solicitor at the time deposes that, although an entry appears in his law register of such service, such entry is not in his handwriting, and his attention, so far as he can remember, was never called to the matter. In her bill of complaint in the present cause complainant avers that defendant stated to her “ that your oratrix was not his wife anyway, ” and ‘ ‘ that the defendant is constantly circulating among the neighborhood and friends false and defamatory stories concerning the temper and character of your oratrix, and further stating that your oratrix is not his (the defendant’s) wife.” In his answer defendant denies the allegation that he was charging that complainant was not his wife. Complainant’s daughter, Bertha Schlicht, testified that she heard defendant say to complainant that she was not his wife anyway, and that he wanted her to get out.” We do not find that defendant, when on the witness stand, denied this testimony.

The solicitor for the defendant was, at the time of the first divorce suit between complainant and Beach, prosecuting attorney of Washtenaw county, and contested on behalf of the minor child Bertha. It is apparent, therefore, that he was possessed of all the information which any one had with reference to those proceedings. He was at first in the employ of the complainant in this case, but, at his request, for reasons about which the parties disagree, complainant consented to receive back the retaining fee which she had paid and surrender Mr. Kirk’s receipt and permit him to enter the employ of the defendant. Although the defendant avers in his affidavit in support of his motion to remand that he did not discover the alleged illegality of the complainant’s decree of divorce until after this case had been appealed, in view of the testimony of the complainant’s daughter and the allegation of complainant’s bill that he was alleging that she was not his wife anyway, and of the knowledge which his solicitor must have had, we are not inclined to accept his statement as correctly representing the facts, but incline to hold, and do hold, that he has been guilty of such laches as to render it inequitable for this court to exercise its discretion in favor of permitting him to take advantage of this defense. It is apparent that the complainant has been guilty of no wrong in this regard. An able and eminent lawyer had charge of her divorce proceedings, and an eminent judge granted her decree. Even if the statute should be held to be mandatory and the taking, of the testimony and entry of the decree prior to the lapse of four months should be held to avoid the decree, the court ought not to facilitate the making of such an inequitable defense. We therefore deny the motion to remand, with costs against the defendant, and proceed to consider the case upon its merits.

It would serve no useful purpose to compare the testimony in support of the opposing parties; and, although complainant’s case is far from being a strong one, still we are inclined to the opinion of the circuit judge that she was entitled to a divorce, and the only question which remains concerns the amount of alimony to which she was entitled. She brought substantially nothing to the defendant, and such property as she had she retained control of and took most of it with her when she went away. The property of the defendant and its value, we think, is fairly stated in defendant’s brief, as follows:

This man was possessed of his homestead, worth....................................$3,500

Pontius farm...........................- 2,100

Twenty acres...........-................... 800

Ten acres_________________________________-- 450

Eighty acres.-..............-...............8,000

Making real estate worth--_____________________$9,850

Ypsilanti Savings Bank $4,000, but he owes the bank $300, making -___________________$3,700

Belleville Bank.............................1,000

First National Bank......................... 300

Making in the bank.________________________5,000

Hemphill note______________________.1_____ $300

Robson mortgage ($100 had been paid on it) - 500

Dr. Robson note............................. 650

Small mortgage of.......................... 100

Personal property on farm.................. 1,300 2,850

Making in all $17,700

During their six years of married life the defendant had conveyed through an intermediary to himself and complainant as tenants by entirety the homestead, worth $3,500, and the 10 acres valued at $450. Complainant was also given by the decree of the court the great bulk of the household furniture.

The court in his opinion fixing the amount of alimony to be awarded by the decree stated it as follows:

“Pontius place, $2,100; cash offer, $1,200; Oregon property, $100; bills assumed, $50; piano, horse, and buggy, $200; temporary alimony, $448; solicitor fees and costs, $150 — $4,248. Taken together they make what is one-fourth of my valuation (and at one time the counsel’s agreed valuation) of $17,000. I will grant a decree for that amount, which substantially makes one-fourth or the present worth of what I believe the wife should receive of this property.”

The defendant is some 72 or 73 years of age, while the complainant is 48 or 49, and the record strongly indicates that the motive of her marriage was a mercenary one, and that she has made it her constant aim to secure his property. Her daughter is married, and she has no one but herself to care for. We are therefore inclined to the opinion that the award made by the circuit court was not far out of the way, except as it charged her, as part of her permanent alimony, with the last five items. We have concluded to modify the decree in this respect as follows: Awarding to complainant the Pontius place, valued at $2,100, the 10 acres valued at $450, and $1,500 in cash. As so modified, the decree will be affirmed, with costs against defendant.

Ostrander, Hooker, McAlvay, and Stone, JJ., concurred.