author: Moore, J.

text:
    SHIPPEY v. GRAND RAPIDS LEATHER CO.
    Master and Servant — Employe in Tannery — Open Vats — Walking in Darkness — Contributory Negligence.
    Planks were placed along the edge of open vats in a tannery, on which employés walked. Vapors rising from the tanks would occasionally obscure the view, and, condensing, would settle on the planks, making them slippery. ^ After plaintiff had worked about the vats for several days, he slipped, and fell into one of them, while attempting to cross the planks before daylight, and in vapors so dense that he was compelled to feel his way. His employer had informed him that any person could do the work, but that he must be careful. He was placed under a boss >vho spoke very imperfect English, and plaintiff could not understand his explanations, but made no complaint thereof. Held, that plaintiff was chargeable with knowledge of the dangers of his employment, and his attempt to cross the planks in darkness was such contributory negligence as to bar a recovery.
    Error to Kent; Adsit, J.
    Submitted June 5, 1900.
    Decided July 3, 1900.
    Case by Elorian D. Shippey against the Grand Rapids Leather Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Bundy & Travis, for appellant.

      Jamison & Ferguson, for appellee.
   Moore, J.

The plaintiff recovered a judgment against defendant because of injuries received while in its employ. From that judgment the case is brought here by writ .of error.

The defendant is engaged in the business of tanning hides. Among other buildings used by defendant is a one-story building known as a “leach-house,” in which the hemlock bark is leached in vats for the purpose of getting a liquid used in the tanning process. In this house were two rows of leach-tanks, sis in each row. The tanks were 8 feet high and 14 feet in diameter. The tanks in the row were about one foot apart, and the two rows were a little farther apart. Between the two rows of tanks were the liquor logs. Reaching into the tanks were steam-pipes, and, by turning a valve, the steam would be let into the bottom of the tanks, and, if continued long enough, would boil the liquid and cause it to splutter, so that some of the'bark would be thrown up, lodging on the running-boards over the tanks. Over the middle of each row of tanks was a running-board, made of planks, about 20 inches wide, and on the sides of the building, just outside of the tanks, was a platform. 30 or 35 inches wide. There was also a running-board between each pair of tanks. There were no rails to any of these running-boards, and, with the exceptions named, the tanks were all open at the top. One, and sometimes two, of the tanks would be boiled at a time, and, when the boiling was going on, would throw off steam. The building was lighted with windows above the tanks. After the contents of a tank had been sufficiently cooked, the liquor would be drawn off, and, after, the leached bark was sufficiently cooled, a plug would be pulled, and the bark would be pitched to a conveyor or elevator, and conveyed to the engine-room, where it was used for fuel. The pitching of this bark is called “pitching leaches.”. The tops of the tanks were reached by a stairway, the head of the stairs being near the end of the running-board over the first row of tanks. After coming up the stairs, if one turned abruptly to the right, and followed a running-board, he would reach the platform running along the side of the building, and parallel with the outside of the first row of tanks. About halfway between the head of the stairway and the platform at the side of the building was a post, which had the effect of narrowing the platform to about 20 inches in width.

The plaintiff is about 30 years old, a man of fair intelligence, who had worked on a farm, and had worked at stave-jointing for about 8 years. He had no experience in a tannery. He entered into the employment of the defendant, and worked for a week, loading bark on cars and doing various kinds of work about the yard. At the end of this week he engaged with Mr. Metz, president of the company, to commence pitching leaches on Monday. He was told:

“Anybody can do the work. Miller will show you what to do, — all about it; and the main thing is, if you work in there, you want to be careful, because you work on boiling hot leaches. ”

On the following Monday he reported to Mr. Miller, who is a German, who speaks English somewhat imperfectly, and was set to work. He claims he could not understand Mr. Miller very well, though there is nothing to indicate that he so informed Mr. Miller. The substance of the testimony of Mr. Shippey is as follows:

“On this Monday morning I went to the engine-room in the morning, and Mr. Miller motioned me to go and wheel coal to the engine-room. I could not understand his language very well, but, by motions, I understood that I was to wheel in the coal. I wheeled coal until, possibly, 8 o’clock. Then Mr. Miller took me up into the leach-house. I could not understand him. He showed me how to pull the plug and pitch the leach. We went to the head of the stairs, and he was talking in German, and told me to follow him, or words to that effect, and I turned to the right, passed over to the first leach, and came across between the leaches, and came to the third leach from the east end on the south side; and he fastened a chain on the lever and on the plug, and told me to pull it. I tried to pull it, and could not, and he got a bar or maul, and pounded the plug and loosened it. Then he helped me, and we took the plug out. Then he took a shovel or fork, and showed me how to pitch it out into that hole. The hole was in the bottom of the leach. * * * After I got the work done, I went to the engine-room, and Mr. Miller told me that, when I heard the elevator, it was a sign he wanted bark up in the engine-room; * * * that was a signal for me to pitch leach.

“On Monday morning, when I went up in there, I couldn’t see much of anything only the vats steaming very little to' the side that I was on. I think the steam was escaping from the building. As you go up the stairway, there is a large post at the right side of the building, ■ — the north side. Passing into the building, there is a post, probably a foot square, that is set into the wall, and the platform is very narrow where it goes through from over the leach there, —possibly 17 inches; maybe more. After you pass that, the platform is wider until it comes to the second leach. These planks are built right on top of the leach or vat, and there are' planks across the center. The post is very close to the landing as you go up the stairs, because, turning to the right, you could place your hand on the post. Between the post and the open vat the plank was very narrow, and then the platform widened after it passed the post. Between the post and the outer wall of the building and the vat, I should think the width of the plank would not exceed 40 inches. Planks are placed over the center, possibly about 10-inch plank; otherwise, vats are open. There is nothing to protect a man from falling in. There were no explanations or warnings given me about clanger at the time I was set to work. I do not understand German. I could not understand Miller only by motions. When he would say anything, he would go through with the motions. I could not understand his language, but by motions of his hands, and the way he did the work, he showed me how to do the work. If he said anything about looking out for this, that, or the other, I couldn’t understand him. Nobody else gave me any explanations of the dangers there. I thought the work had been assigned to others, and that I was as capable of doing it as well as others. It appeared to me that I could do it [safely as well as others. I afterwards saw conditions, while I worked there, which did not exist when I was set to work, — the dense fog, the slippery condition of the platform, and the deposits of bark. * * *

“ On Saturday morning I went up the stairs, turned to the right, placed my hand on the post passing the narrow spot in the platform, turned, -swayed to the right towards the wall, and stepped on something that pitched me headlong towards the leach. Would have gone in head foremost had it not been for throwing myself sidewise, and struck my side on the platform, and foiled into the leach. Gaining strength, I got out, and went to the window that was open there. I had never seen the bark boil over. I do not know what I stepped upon. I can’t tell what it was. I lost— I slipped or stumbled. It was all done so quick that I couldn’t tell what it was. My feet went out from under me.

‘ ‘ Q. What caused that ?

“A. I don’t know what it was. Something had been placed there. It must have been some slippery substance. I never understood fully about the action of steam and condensing and dropping. The steam was more dense that morning. The weather was cold. I had not encountered the slippery condition and density of the steam prior to the morning of the accident. * * * I was passing up there in the leach-house that morning, going to my work of pitching leaches. The elevator had started. It appeared to me that the side was the safer .course, so, rather than crossing the center plank, because the center plank was narrower. I was going to the south side of the building; had to pass the first leach, and to go, I think, the fourth leach below the end from the east of the south side. That was the vat I was working in. I don’t know which of the vats were hot when I first went there. The vat into which I fell was boiling the night before the accident. I saw nothing of any deposit of any kind lying about there upon the planks the night before. I had passed over this point the night before. When I slipped, it was immediately after I had passed the post. I did not have hold of the post. There are no lights in that building, and I did not carry any light of any kind. The room is not lighted, only by lantern, if any. It was not lighted that morning. There are windows on the sides; no artificial lights. Nothing had been said to me about a lantern, or any provided for me. I learned, the morning of the 2Gth, that it was dark and the plank slippery, and that something was placed upon the planks that I took my tumble. The steam was denser and thicker. The morning that I went to work there was nothing in the way that would be slippery, that I could see or found. What caused me to fall in was the slippery condition of the affair that I slipped on. Had I not have slipped on it, I would not have fallen in. * * *

Q. What other condition existed that morning that did not exist when you went to work, and prior to the accident ?

“A. The conditions of the fog and the slippery condition that I found. By fog I mean ‘ condensed steam.’”

On the cross-examination he said:

“I had never been in the leach-house prior to being set to work there. The engine-room is just to the east of it. I had been to the engine-house, and knew the doorway that went up into the leach-house. * * * The leach is a cylindrical, round tub,- — wat,—probably 8 feet deep, and in that leach is the tan-bark and water. The liquor is drawn out of the leach from the bottom, and that leaves the tan-bark in a bunch, as I found it after I went to work. There was a big plug in the bottom of the leach, and, to pitch the leach, you pulled the plug and opened the opening, and then broke up the tan-bark, and dumped it out of the bottom. * * * I went up there Monday morning, and Miller went with me. I saw the room full of vats, — two rows of them the full length of the room. There was very little steam coming from any of them that morning.

“Q. You knew that there was hot water in some of them, or hot liquid of some kind ?

“A. I knew there was steam of some kind; yes, sir. The leach that I pitched first was on the south side. The leach next to it must have been warm, and I knew it. I learned at that time that steam-pipes were in those vats. T found one in the leach I was pitching. I knew that that pipe was there to let steam in, and that the steam was put in to heat the liquid in the vats; and I knew that, when the steam had been put through those pipes, the liquid must necessarily become boiling hot, if kept up. *

“It was pretty dark those mornings at the time I went to work, — ? o’clock, sun time, or ‘fast time,’ as they call it. It had been pretty’ cold all that week, but it was colder that morning. * * *

“When I went up into the leach-house Tuesday, I went at my work, pitching the leaches. I went to work under Mr. Miller’s instructions. He showed me, each time, the leach to draw. I do not remember that he took me up into the room Tuesday; he did Monday. I think it was light enough when I went up Tuesday. I did not take a lantern. I do not know that they had lanterns in the engine-room; I never asked. * * * I think I pitched but one leach Tuesday. The leach right next to it was hot, to a certain extent; it must have been; there was steam in it. I heard it boil in those vats while I was at work there. You can hear it all over the house if you are near it, and you can see it come to the surface. I do not know that the bark hangs to the surface very largely while it is cooking. I suppose it would, to a certain extent. To a certain extent, I remember that it did. I knew that the steam was in there; I could hear it. I do not know how many times I went up there Tuesday. * * * I went in and out several times every day, but I never found it so that I should stumble before. I saw all of the vats up there every day I looked. I knew every vat was open every time I went up there, and knew the building was lighted only by low windows; I do not know how many. And I knew that those vats were giving up steam. The planks on the south walk line lay right on top of the vats, projected over the vats. * * *

“Wednesday T went at my work. I do not know what time I went in the leach-house. I did not take a lantern. I do not know as anybody went with me. Mr. Miller told me which leach to take. I think Tuesday night we drawed the plug, if I remember right, for Wednesday morning. * * * There was no one with me only when Mr. Miller would go up there to work. The leach next to the one I was pitching must have been hot.

“I worked Thursday until noon, and we laid off for Thanksgiving. I pitched a leach that morning. I do not know what time • I went to work. I did not take a lantern. No one said anything to me about a lantern, to my knowledge, or that I could understand if they did. I did not see Mr. Miller take a lantern at any time. * * * From the 20th to the 26th of November, at half past 6 in the morning, standard time, or 7 o’clock, sun time, it is pretty dark. It was not broad daylight.

‘ ‘ Friday I pitched leaches. * * * I pitched one leach. The leach next to it must have been hot; steam arising from it. I do not remember as I took notice of its boiling. I knew steam was running in through a large pipe. * * * I think there were some days that I pitched a part of a leach twice a day, — in the morning and at night. * * *

“ Saturday morning it was from five to eight minutes after 7 when I went up in there. I went up immediately after I got to the shop. * * * I was a very little late that morning. * * * The elevator had started. It was ordinarily dark. It was not broad daylight. When I got in the building I discovered that it was very dark. It was practically pitch dark from the dense'fog, — from the dense steam. I saw steam immediately when I got in. I knew that I could not see my footway at all. I could not see my footway a particle. * * *

“I worked in a stave-mill eight years. They steamed their bolts and jointed. I worked all the way from a quarter to a mile from the steam-chest. I was not at the mill very often. I knew they steamed bolts. I commenced work when I was 17. * * *

“When I started off the head of the stairs, I had literally to feel my way. I don’t know what I did when I found I was in the hot water; I do not remember. * * * As soon as I climbed out of the vat, I went immediately to the window, examined and cooled my burns as much as I could, started immediately down stairs, and went into the engine-house. I did not stop to examine the planks at that time after I fell in. I do not know what I stepped on, only it was something slippery that throwed me. I do not know what it was; I did not stop to examine. At the time I fell in, I could not see my feet or the planks.”

We have quoted at length from this testimony to show just what the plaintiff claims. It is the claim of the defendant that a verdict should have been directed in its favor — First, because plaintiff was guilty of contributory negligence; and, second, because he must be presumed, after several days’ employment, to be so familiar with the situation and its dangers that, if he continued in the employment, he assumed the risks .incident to the business. Taking the version given by the plaintiff, we think it must be said that his conduct was not that of an ordinarily prudent- man. He knew about these open tanks, in some of which there was boiling liquid. He knew about the running-boards and their location, and that they were without railings. He knew the tanks gave off steam, which would, in cold weather, condense, and be deposited upon the planks. He must have known that a misstep might result in a very serious accident; and yet, knowing the situation, he attempted to get about among these open tanks at a time when he says it was pitch dark, — so dark that he could not see his feet nor the planks. If this is not a case of contributory negligence, it is difficult to conceive of one. Village of Momence v. Kendall, 14 Bradw. 229; Taylor v. Manufacturing Co., 140 Mass. 150 (3 N. E. 21); Deer. Neg. § 210; Beach, Contrib. Neg. § 35; Bailey, Mast. Liab. 159; Michigan Central R. Co. v. Coleman, 28 Mich. 440; Mynning v. Railroad Co., 67 Mich. 677 (35 N. W. 811); Melzer v. Car Co., 76 Mich. 94 (42 N. W. 1078); Fisher v. Railway Co., 77 Mich. 546 (43 N. W. 926); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13); La Pontney v. Cartage Co., 116 Mich. 514 (74 N. W. 712). The accident was a deplorable one, and greatly to be regretted; but it is not one for which the employer should respond in damages.

The judgment is reversed, and no new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v. TURNEY.
    I. Criminal Law — Information—Locus of Offense — Jurisdiction.
    An information which charges an offense as having been committed “at, to wit,” a township, county, and State before mentioned, is sufficient to give the circuit court of the county jurisdiction.
    3. Same — Larceny of Cattle — Cross-Examination of Witnesses —Credibility.
    Eefusal to-permit the defense, on a prosecution for stealing cattle, to show, by cross-examination of a material witness for the people, that he had proposed to others to steal cattle and divide the profits, was reversible error, since it affected his credibility."
    3. Same — Bias of Witness.
    On a prosecution for stealing cattle, it was reversible error to exclude evidence that one of the respondents had accused the people’s witness of the larceny of an animal stolen from said respondent, offered for the purpose of showing that the witness was biased against them.
    4. Witnesses — Veracity—Eebuttal.
    Where a witness’ reputation for truth and veracity is attacked evidence of fair dealing in business transactions with in dividuals is not competent as sustaining testimony.
    Exceptions before judgment from Mecosta; Edwards, J.
    Submitted June 12, 1900.
    Decided July 3, 1900.
    William Turney and John Hendricks were convicted of larceny.
    Reversed.

      L. Gr. Palmer and John T. Clark, for appellants.

      Albert B. Cogger, Prosecuting Attorney, for the people.
   Moore, J.

The case comes here upon exceptions before sentence. The respondents were convicted of the larceny of a cow. The important part of the information filed against the respondents reads as follows:

“In the Circuit Court for the County of Mecosta.

“Albert B. Cogger, prosecuting attorney-for the county of Mecosta, aforesaid, for and in behalf of the people of the State of Michigan, comes into said court at the November term, in the year of our Lord one thousand eight hundred ninety-eight, and gives the said court here to understand and be informed that William Turney and John Hendricks, late of the township of.Martiny, in the county of Mecosta and State of Michigan, on, to wit, the 20th day of September, A. D. 1895, at, to wit, said township, county, and State, one cow, of the value of fifty dollars, ‘of the goods, chattels, and property of one Stephen W. Foster, then and there being found, feloniously did steal, take, and carry away, contrary to the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

A motion was made to quash the information because it does not charge that any offense was committed within the jurisdiction of the court. The trial judge overruled the motion. It is said he erred. We think the information charges the offense to have been committed at the township of Martiny, in the county of Mecosta and State of Michigan, on the 20th of September, A. D. 1895, and that the trial court made a proper disposition of the motion.

James Lowrey was called as a witness for the people. He testified that he knew the cow said to have been stolen, and that he saw it on the farm of the owner. He says he was in charge of the meat-market of one Mr. Thomas; that at about midnight he was called up by respondents, who said they had a cow for Mr. Thomas, who was then absent from home; and that he went with them to the slaughter-house, and with their assistance butchered the animal, and put it into the cooler belonging to Mr. Thomas. On the cross-examination of this witness, for the purpose of discrediting him, it was sought to show that he had proposed to various persons to steal cattle and sheep, they to divide the profits with him. The defense was not allowed to pursue this line of cross-examination. If Mr. Lowrey was a man who proposed to others to steal cattle and divide the profits, jt would very properly affect his credit as a witness, and the cross-examination should have been allowed.

For-the purpose of showing that the testimony of Mr. Lowrey was actuated by spite, it was sought to show by him that an animal had been stolen from one of the respondents, and that Mr. Lowrey had been accused by respondent of stealing it. The court refused to allow the inquiry to be made. In this we think he erred.

Upon the part of the defense an effort was made to impeach Mr. Lowrey. A number of witnesses were sworn who testified they knew his reputation for truth and veracity in the neighborhood where he resided, and that it was bad. For the purpose of rebutting this testimony, witnesses were called who were allowed to testify that they had had dealings with Mr. Lowrey, and that he treated them fairly in those deals. This was not competent sustaining testimony.

Other errors are assigned, but they are either not well taken or are not likely to occur again. For the errors pointed out the conviction is set aside, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    COWIN v. HURST.
    Trusts — Insurance Policy —Beneficiary—Trustee—Duty to Account — Validity of Trust — Waiver by Company.

      M. was a member of the Ancient Order of United Workmen. His beneficiary, at his death, was entitled to receive $2,000. His wife and daughter, his first beneficiaries, having died, he desired to make C., his son-in-law, his beneficiary. This was prohibited by the articles of association. He thereupon made his niece his beneficiary, with a written agreement, signed by her, that upon receipt of the fund she would pay it over to C. The association issued a draft to the niece with full knowledge of the trust upon which she had agreed to receive it. Upon receipt of the draft she refused to transfer it to C., or to pay him the money. Held, that she was bound to carry out the trust, and that the association is the only party in position to contest the legality of the transaction.
    Appeal from Montcalm; Davis, J.
    Submitted June 12, 1900.
    Decided July 3, 1900.
    Bill by John Cowin against Harriet F. Hurst to enjoin the collection of a certain draft. From a decree for complainant, defendant appeals.
    Affirmed.
    One William Maxted was a charter member of a lodge of the Ancient Order of United Workmen at Greenville, and held his membership until his death, May 13, 1898. Under the insurance clause of his membership, his beneficiary was entitled, at his death, to receive the sum of $2,000. His wife vims his first beneficiary. Upon her death he made his daughter, an only child, Mrs. Cowin, his beneficiary. She died childless. After the death of Mrs. Maxted he lived for some time with his daughter and her husband, until he married again. Upon the death of his daughter he desired to make Mr. Cowin his beneficiary, but, under the articles of association, the beneficiaries were limited to members of one’s family, or some blood relative. He informed the officers of the association of his desire. The recorder of the local lodge informed him that it was doubtful whether the transfer could be made to Mr. Cowin, but he thought it could. The local recorder thereupon wrote to the grand recorder, who informed him that it could not be made direct to Mr. Cowin. It was, however, considered proper and competent by the officers that he should name a niece (the defendant) as his beneficiary, with the understanding or agreement that she, upon his death and receipt of the money, should pay it to Mr. Cowin. This seems to have been definitely understood, not only by the officers, but by all the members, of the local lodge. This was done, and defendant and Mr. Cowin executed a contract whereby Mr. Cowin agreed to convey to Mr. Maxted his one-half interest in the homestead, the title to which had stood in his wife, and defendant agreed that, “upon receiving or coming into possession of the said-sum of money mentioned in said certificate .of insurance, or any part thereof, she will, without delay, pay and deliver the same' over to the said party of the second part, or to his legal heirs.” Upon receipt of the draft of $2,000 she refused to carry out the agreement, and attempted to obtain the money. Mr. Cowin thereupon filed a bill to enjoin her from making the collection. The case was heard upon pleadings and proofs taken in open court, and decree rendered for the complainant.

      Edioard J. Bowman (N. O. Griswold, of counsel), for complainant.

      Chaddock & Scully (Allen B. Morse, of counsel), for defendant.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). The claim of the defendant is that because Mr. Cowin had no insurable interest in Mr. Maxted’s life, and could not be made a beneficiary, therefore the contract between complainant and defendant is void, as against public policy, and that the courts will not afford relief. This position ignores another legal and equitable rule, — that a trustee cannot be heard to say, “I will not carry out the trust, because the parties had no legal right to repose the trust in me.” The Ancient Order of United Workmen is not here complaining. If it were, a different question would arise. There was no attempt to defraud the association. It was fully informed of the situation, and, after being so informed, consented to pay over the money. Upon what principle of justice or equity can the trustee be heard to say, “I will profit to the full extent of the money placed in my hands by the consent of all parties, although one of them might, if it chose, contest its legality?” If the association had issued a certificate to the defendant, and provided therein that she should hold the money in trust to pay his creditors, the certificate would be void, if the association saw fit to make that defense ; but if the association should choose to waive such defense, and pay over the money to the trustee, neither law nor equity would permit the trustee to profit by the transaction, and keep the money. The rule is settled against the defendant by numerous authorities: Peek’s Ex’r v. Peek’s Ex’r, 101 Ky. 423 (41 S. W. 434); Town of Remington v. Ward, 78 Wis. 539 (47 N. W. 659); Gilmore v. Roberts, 79 Wis. 450 (48 N. W. 522); Wells v. McGeoch, 71 Wis. 196 (35 N. W. 769); Hurd v. Doty, 86 Wis. 1 (56 N. W. 371, 21 L. R. A. 746); Standard Life & Accident Ins. Co. v. Catlin, 106 Mich. 138 (63 N. W. 897); Hosmer v. Welch, 107 Mich. 474 (65 N. W. 280); Woodruff v. Tillman, 112 Mich. 188 (70 N. W. 420). The sole parties concerned in the validity of this transaction are Mr. Cowin and the association. If they are satisfied, it does not lie in the mouth of the defendant to complain. She has no equities. She paid nothing. Mr. Cowin parted with his interest in the homestead, worth $600, in consideration of making this agreement, and, besides, paid Mr. Maxted’s assessments for several years.

The decree is affirmed, with costs.

The other Justices.concurred.


text:
    CARTER v. BEDORTHA.

    Trespass — Evidence — Motive — Incompetent Questions — Instructions — Damages.

       1. In an action for trespass quare clausum fregit, under the general issue, it is competent for the defendant to introduce evidence of his motive and reasons for entering the plaintiff's house, and all the circumstances attending it, although no justification is pleaded. They are proper for the jury to consider in assessing damages.
    2. Courts will not, except in very extraordinary cases, reverse a judgment for asking incompetent questions which are not • answered, and are promptly ruled out.
    3. Damages in trespass may be enhanced by the aggravated circumstances under which it was committed, and the court, if his attention is called to it, should so direct. But where no such request is preferred, and the record does not indicate that the attention of the court was directed to it, the case will not be reversed.
    Error to Berrien; Coolidge, J.
    Submitted June 23, 1900.
    Decided July 3, 1900.
    Trespass quare clausum fregit by May B. Carter against Burritt S. Bedortba. From a judgment for plaintiff for nominal damages only, she brings error.
    Affirmed.
    Plaintiff and defendant own and live upon farms about 60 rods apart. No trouble had come between them until that out of which came this suit. Some families of Jews lived near by, Whose children passed plaintiff’s house on their way to and from school. She had a son 17 years old. She kept a large dog, which was accustomed to bark at and attack these children on their way to and from school. Plaintiff had great antipathy against the Jews, and was accustomed to call them “Sheenies.” It is claimed — and the evidence in support of the claim is very strong — that plaintiff’s son was accustomed to set the dog upon the children. On March 10th some of these children-went to defendant, complaining that plaintiff’s son dogged them as they went by. He told them to go along on the other side of the road, and attend strictly to their business, and he would see that they got through-safely. As they got nearly opposite plaintiff’s house, the dog ran at them, barking. Defendant picked up a limb of a tree, broke it over his knee, and ran to protect the children. The limb was about the size of !his thumb. He tried to intercept the dog before the latter reached the house. He failed in this. Then went to the house, with the stick in his-.hand, to remonstrate against this treatment of the Jew children. He opened the door without knocking, and stepped inside. The parties differ widely as to what was said. Plaintiff was sitting in a chair when defendant entered. Her version is that he did not make known his errand, but brandished this stick over her head; that thereupon she ordered him from the house,'and, to use her own language:
    “I pushed him out. I didn’t put my hands on him; I put my hands in front of him, and pushed him out. * * * I followed him to the doorsill. * * * After I got him to the door he commenced to abuse me. My son was going to hit him. I told him I would take care of Mr. Bedortha myself. I did not get mad until Saturday forenoon at Mr. Bedortha. [The trouble occurred on Friday.] There was no conversation until' I got him to the door. He didn’t tell me at any time what he was .there for. I spoke to him so that he would know my mind pretty plainly.”
    According to defendant’s version, he went into the house to remonstrate with her for the treatment of these children, but made no assault. He used language which was improper, but which may have been provoked by the language of the plaintiff in calling him a “Sheeny detective.”
    The declaration is in trespass quare clausum fregit, and sets forth that defendant assaulted plaintiff with a large stick, and called her abusive names. Plaintiff recovered a verdict of six cents.

      O’Hara & O’Hara, for appellant.

      George W. Bridgman and Gore & Harvey, for appellee.

       Rehearing denied December 11, 1900.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The plea was the general issue. Defendant was permitted, under objection and exception, to introduce evidence in regard to the treatment of these children by plaintiff’s son and herself. It is urged that these were matters of justification, and inadmissible without notice. They were not admitted for that purpose, but for the purpose of showing the motive of the defendant in going to the plaintiff’s house. The court instructed the jury that the defendant was guilty of trespass. We think the testimony was admissible. The jury had the right to consider the motive of defendant in going to the house. No injury was done to the realty, no bodily injury inflicted, and the only damage plaintiff could recover would be for an injury to her feelings. In such case the reason for entering, and all the circumstances attending it, were competent for the jury to consider.

Complaint is made because certain questions were asked in the presence of the jury, although the judge promptly ruled them incompetent, and they were not answered. We find nothing in them to justify a reversal of the case on this ground. Cases are very rare, the circumstances must be very aggravating, and the prejudice very apparent, to justify a reversal of a case because counsel have asked incompetent questions, which the court refused to allow.

Plaintiff complains that the court, by its charge, took away from the jury the right to consider the aggravated circumstances of the trespass in assessing the damages. We need not cite authorities to sustain the proposition that damages for trespass may be enhanced by the aggravated circumstances under which it was committed, and that the language used by, and the motive of, the trespasser, are competent to be considered in that connection. If, therefore, the court had its attention called to this subject, and failed to so instruct the jury, it would be manifest error. In commencing his instructions the court said that the declaration contained two counts, — one for trespass to real estate, and the other for assault. Thereupon the attorney for the plaintiff interrupted the court, stating that there was only one count. The court thereupon said: “There are two claims, — one for trespass, and the other for assault.” He then stated that on the question of assault there were two questions: (1) Whether there was an assault. (2) If there was, what were the damages to be allowed for it ? The correctness of this statement was not challenged by the attorney. It was evidently strenuously argued before the jury, as it is argued in this court, that there was an assault. The court then correctly instructed the jury as to the measure of damages if an assault was committed, telling them that the real injuries might be enhanced by evidence of malice on the part of the defendant, and that plaintiff could recover for injuries to her feelings, such as a sense of shame, mortification, humiliation, shock, and fright.

We think it manifest that the circuit judge submitted the case to the jury upon the theories upon which it was argued by counsel. The jury found that there was no assault, and the judge instructed them that, for the trespass, plaintiff could recover only nominal damages. If it clearly appeared that this point was called to the attention of the court, we should be compelled to reverse the judgment. If the court had been requested to instruct the jury that the measure of damages for the trespass might be enhanced by the commission of an assault, or the use of abusive language, it would have been error.to refuse it. This is not a case to justify its reversal upon technicalities, or to hunt for grounds of error. Plaintiff, from her own statement, was not frightened, nor were her feelings seriously injured. Her character appears in the following testimony:

‘ ‘ In answer to Mr. O’Hara — he asked you what you did to keep the Jews away — you said Lome [her son] rubbed pork on her face ?

“A. Yes, sir.

“Q. He did it by your orders?

“A. Never, sir. I didn’t order him to do it, but I didn’t care if he did. It happened in the kitchen at my place.

Q. Was that the only time he ever rubbed pork on her face?

_ “A. No; he run her out of the house one day with a piece of pork; rubbed her face with it, too.

“Q. He crowded it down her throat at that time, didn’t he?

“A. He said he was afraid he would choke her. ”

Inasmuch, therefore, as there is nothing upon this record to indicate that this matter was called to the attention of the judge, or a request made, we decline,to reverse the judgment.

Judgment affirmed.

The other Justices concurred.


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    YOUNG v. SHEPARD’S ESTATE.

    Bills and Notes — Consideration—Fraud—Executors—Settlement — Evidence.

       1. A promissory note imports a -valid consideration, and, its execution being admitted, the onus is cast upon the maker to show its invalidity.
    2. The maker was dead. The executor of her estate called the payee as his own witness to show fraud and misrepresentation on her part in securing the note, and want of consideration. Held, that her testimony failed to establish the defense.

      8. That the maker and payee, at the special request of the maker, kept the giving of the note secret, and that the maker did not notify her co-executor of her husband’s estate that she had given the note in settlement of litigation against the payee and her husband’s estate, are not badges of fraud, especially in view of the fact that she gave other personal notes without informing him.
    Error to Kent; Adsit, J.
    Submitted January 31, 1900.
    Decided July 7, 1900.
    Owen Young presented a claim against the estate of Dorinda N. Shepard, deceased, upon a promissory note. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. Erom a judgment for claimant for less than the amount claimed, he brings error.
    Reversed.
    Plaintiff’s claim is based upon a promissory note for $8,000, dated March 4,1895, payable to Alice G. Lockerby on or before October 15, 1898. It was assigned by her before due to plaintiff, who is her brother. Five payments were made upon this note, the last one dated July 6, 1896, aggregating $1,400. This note was given in renewal of another for $9,900, given by Mrs. Shepard to Mrs. Lockerby, dated May 9, 1893, upon which $2,000 had been paid. Mrs. Shepard died November 26, 1896. The jury gave a verdict for plaintiff for $500.
    The due execution of the note is admitted. Plaintiff made his case by introducing it in evidence. The defense is that the note was without consideration, and was obtained by fraud and misrepresentation on the part of Mrs. Lockerby, and that plaintiff is not a bona fide holder.
    Mrs. Lockerby purchased from Dr. Shepard, the husband of Mrs. Shepard, certain real estate and other property in the city of' Grand Rapids, October 10, 1892, the purchase price being $200,000, and received a deed, November 12, 1892. Dr. Shepard had leased the real estate to one Hartman. ' Hartman had defaulted in payments, and had given to Dr. Shepard a chattel mortgage for $26,000. Hartman had failed, and had made an assignment for the benefit of his creditors, the assignee being at the time of the purchase in possession. Thirty thousand dollars of the purchase price was paid down, and a mortgage given for the balance. The deed was given subject to the Hartman lease. By the agreement between Dr. Shepard and Mrs. Lockerby, she was to bear all expenses of obtaining possession of the property. By the lease, Hartman agreed to pay all general and special taxes and insurance. Dr. Shepard proved a claim against the estate of Hartman of $87,753.18. On December 9, 1892, the assignee brought suit in equity against Dr. Shepard and Mrs. Lockerby, charging that the lease, and the lien created thereby, and the chattel mortgage assigned to Mrs. Lockerby, were fraudulent and void as to Hartman’s creditors. The court enjoined Mrs. Lockerby from taking any steps to forfeit the Hartman lease, or from interfering with the assignee’s possession. The bill charged fraud upon Dr. Shepard in procuring the mortgage from Hartman, and asked for án accounting between Shepard and Hartman. Dr. Shepard died March 8, 1893, and the suit was revived in the name of Mr. Mark Norris and Mrs. Shepard, the executors of his will. The chattel-mortgage stock was sold by order of the court, and the proceeds, amounting to over $13,000, paid into the court. The assignee meanwhile collected rents, but paid none. On May 9, 1893, the litigation was settled in pursuance of the following agreement:
    “ It is mutually agreed that the suit now pending in the circuit court for the county of Kent, in chancery, between the undersigned John Widdicomb, assignee of Carroll S. Hartman, and the undersigned Alice G. Lockerby, be settled upon the following terms, to wit:

      “First. All rents heretofore collected, or now past due and uncollected, up to May 1, 1893, of the property heretofore leased by Charles Shepard to the said Carroll S. Hartman, shall be and belong to the said John Widdicomb, as assignee of the estate of said Carroll S. Hartman, and the said- Alice G. Lockerby hereby waives all claim thereto, or to any other moneys now or hereafter in the hands of the assignee, except as hereinafter specified, whether said claim be by virtue of any lien, or as a creditor of the estate of said Carroll S. Hartman, or otherwise, and she hereby transfers to said John Widdicomb all right, title, claim, or interest therein or thereto; and she further agrees to pay said assignee, on the execution and delivery hereof, the sum of three hundred and fifty dollars.

      “Second. The said John Widdicomb receives the same in full settlement of said suit and any and all claims against the said Alice G. Lockerby, or the premises purchased by her of Chas. Shepard, or the buildings standing thereon, or personal property covered by lease bearing date May 1, 1890, between Charles Shepard and wife and Carroll S. Hartman, and chattel mortgage, which has not already been sold, except the rents and moneys as provided.

      “Third. The said Alice G. Lockerby shall receive the sum of thirteen thousand four hundred sixty-seven and 20-100 dollars, being the moneys paid on the sale of property heretofore had by said assignee under the order of the court. She shall retain the notes, pledges to Charles Shepard, and all moneys heretofore collected thereon.

      “Fourth. The suit in chancery now pending in the circuit court for the county of Kent, in chancery, shall be discontinued, without costs to either party.
    “It is mutually agreed and understood that the lease bearing date May 1, 1890, is hereby canceled, and is of no further force and effect.
    ‘ ‘ This agreement shall be binding on the parties when approved by the judge of the circuit court for the county„ of Kent.
    “It is understood that this contract is a mutual settlement of all.matters between the parties hereto.
    “John Widdicomb, Assignee.
    “Alice G. Lockerby.
    “We hereby approve the above contract.
    “Butterfield & Keeney, Solrs. for (Domplt.
    “Edwin F. Uhl, Counsel for Complt.
    “Tatem & Just, Solrs. for Deft. Lockerby.”
    The original note, dated at the same time as was this agreement, was evidently a part of the transaction, and a consideration for Mrs. Lockerby’s'executing it.

      Taggart, Qanson & Taggart, for appellant.

      Crane, Norris & Stevens, for appellee.

       Rehearing denied September 16, 1900.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Counsel for plaintiff contend that there is no evidence of fraud, misrepresentation, or want of consideration. This presents the principal issue, and renders necessary careful examination of the circumstances surrounding the transaction, and the testimony of a large record. The note itself imports a valid consideration, and, its execution being admitted, the onus is cast upon the defendant to show its invalidity. It could only do this by making Mrs. Lockerby its witness, as she and Mrs. Shepard were the sole witnesses to the execution of the note and the consideration for it. There is no pretense that Mrs. Shepard was not competent to execute it. She wrote it herself. She recognized the validity of the first note by making payments thereon, and finally by taking it up, and giving another in its place, and by making five payments upon that. Thus, .for more than three years she did not question the note, but by solemn acts recognized its validity. She executed the deed to Mrs. Lockerby, and was one of the executors of her husband’s will, and it is a just conclusion that she was familiar with the entire situation. There is no evidence that she was not. The jury found the original and renewal notes valid to the extent of $3,900, of which $3,400 had been paid by Mrs. Shepard during her lifetime; the verdict being for the other $500. How they reached this is a matter of conjecture.

Defendant seeks to limit the consideration to the rents received by the assignee and Mrs. Lockerby’s payments to her attorneys. Defendant’s counsel concede in their brief that the gross receipts of the assignee while he held possession were $4,684.54. They claim the expense of the assignee during that time was $1,944.05, leaving a net balance of $2,740.49; to which add the attorney’s fees, and the total would be $3,709.58. But why should Mrs. Lockerby pay the assignee for collecting these rents, and taking care of the property, when she herself, under the claim of the defendant, was entitled to the possession of the property and to the collection of the rents ? If this be the theory of the verdict, I see no reason why Mrs. Lockerby was not entitled to a verdict for $5,653.63 and interest, less what Mrs. Shepard had paid her. This would entitle her to a verdict of $2,253.63 and interest. In one of defendant’s requests to charge, which was given, counsel state their claim on this point as follows:

“The defendant claims that the gross rents of the property from October 10, 1892 (the date of Alice G. Lockert^’s proposition to purchase), down to May 10, 1893 (the date when the litigation was settled and the property given into her possession), amounted to $4,666.38, or, including doubtful items, $5,202.98, and that the net rents for the same period were only $2,722.87. It is further claimed by the defendant that the law bills paid by Alice G. Lockerby on account of litigation did not exceed the sum of $625. And it is claimed by the defendant that, in any event, Alice G. Lockerby would not be entitled to recover on account of the note any more than the total of her law bills and the rents which she had lost on account of the litigation, less the payments _ which Dorinda N. Shepard made upon the note, which payments the evidence shows amount to the sum of $3,300.”

There is no testimony to show that the charges of the assignee for collecting rents were to be deducted. Mrs. Lockerby had evidently expended all her means in the purchase of this property. She was unable to make her payments without its possession and the income therefrom. Her attorney had advised her that the estate of Mr. Shepard ought to pay something to secure a settlement. Both she and her attorney had tried to induce Mr. Norris, the principal executor of the estate, to thus assist in a settlement, but he declined, claiming that the estate was not liable. But, notwithstanding his opinion, the injunction was retained by the court for seven months against strenuous efforts to dissolve it. Mrs. Shepard was an executrix and the devisee of a large amount under her husband’s will. The bill filed by the assignee charged her husband with fraud. It was not only laudable, but legal, for Mrs. Shepard to pay money or give her note to effect a settlement, close the litigation, and release the estate from the expense of litigation. She knew that her co-executor declined. She chose, therefore, to do it herself.

While it is true that Mrs. Lockerby was unable to state the exact amounts which went into the note, five or six years afterwards, I think it entirely clear that Mrs. Lockerby made no false representations, and that Mrs. Shepard fully understood the situation, and voluntarily gave this note to compensate her for losses and to end the litigation. It was argued to the jury, and is argued here, as a suspicious circumstance, that this settlement was made by these women without the knowlédge of, or consultation with, their attorneys, and that they kept the settlement secret. Mrs. Lockerby testified that Mrs. Shepard expressly requested her to keep the matter secret. There is nothing suspicious in their doing so, especially in the face of the fact, testified to by Mr. Norris, that 14 other notes were presented against Mrs. Shepard’s estate, of which he had no notice or knowledge until they were presented for probate. Such circumstances are not badges of fraud. I think it manifest that Mrs. Lockerby lost in the transaction the full amount of the note. But, whether this be so or not, the main point was the settlement of the litigation, and getting the property of all the parties out of the courts, and saying the expense of further litigation.

A full statement of the testimony would make this opinion of unnecessary length, and be of no benefit to the profession. I think the court should have directed a verdict for the plaintiff. This disposal of the case renders it unnecessary to discuss the other assignments of error.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Montgomery, C. J.

text:
    FERRIS v. SNOW.
    Land Contract — Speoifio Performance — Parties.
    A bill to enforce a contract under seal for the purchase of land, which charges that one of the defendants, who executed the contract as trustee, was acting for himself and for two others joined as defendants, whom the contract does not name or purport to bind, is demurrable, in the absence of averments of a ratification of the agent’s act.
    Appeal from Wayne; Frazer, J.
    Submitted February 6, 1900.
    Decided July 7, 1900.
    Bill by Loyde L. Ferris, administratrix of the estate of George W. Ferris, deceased, against Frank E. Snow, Fremont Woodruff, and William A. Jackson, for the specific performance of a land contract. From an order overruling a demurrer to the bill, defendants appeal.
    Reversed.

      George W. Radford, for complainant.

      De Forest Paine, for defendants.
   Montgomery, C. J.

The bill in this case was originally filed by the complainant to enforce a land contract between the intestate, as vendor, and the defendants, as vendees. The contract was signed by the intestate and wife and by Frank E. Snow, trustee. The bill avers that:

“Said Frank E. Snow executed the same as Frank E. Snow, trustee, but your oratrix avers the fact to be that said Frank E. Snow, in executing said contract, acted for and on behalf of himself and said defendants Fremont Woodruff and William A. Jackson, and that said Frank E. Snow, Fremont Woodruff, and William A. Jackson were the joint purchasers of the premises in accordance with the terms of said contract, and should be held liable and decreed to perform the said contract.”

To this bill the defendants interposed a demurrer, setting up the following grounds:

“ 1. The bill is by the personal representative of a deceased vendor, and the heir is not made a party.

“2. There is no offer in the bill to put the defendants in possession, nor any averment that they are in possession.

“8. It appears that defendants Woodruff and Jackson did not sign the contract of purchase, but the bill avers that they, with defendant Snow, ' were the joint purchasers of the premises.’ The bill contains no averments to show them to be such, nor how or in what manner, or upon what authority to Snow, they became such. The bill is multifarious and uncertain.

“4. The prayer of the bill is for judgment and execution, and not for a sale.

“5. It does not appear that any tender of performance was made by complainant, or that a deed was tendered before the bill was filed.”

-On the hearing the court sustained the demurrer as to want of parties, and overruled it as to other grounds, at the same time permitting an amendment to the bill making the heirs at law of the deceased parties defendant. From the order overruling the demurrer, defendants have appealed.

Counsel for appellants discusses the question of want of parties, but that question is not before the court. The appeal can only be considered as one from so much of the order as overruled defendants’ demurrer. The contract in this case is under seal, and does not name or purport to bind defendants Woodruff or Jackson. The technical rule that a party not named in a sealed instrument cannot be made liable upon it, in the absence of some act of subsequent ratification, applies. Mechem, Ag. § 418 et seq.; Briggs v. Partridge, 64 N. Y. 357 (21 Am. Rep. 617); Henricus v. Englert, 137 N. Y. 488 (33 N. E. 550). No facts showing subsequent ratification are averred in the bill. The demurrer was therefore well taken, and must be sustained. The case will be remanded, with leave to complainant to amend under the rule. Defendants will recover costs of this court.

The other Justices concurred.


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    MORTON v. JOHNSTON.
    1. Executors and Administrators — Accounting — Appeal— Questions of Pact — Jury.
    Upon an appeal from the allowance of an administrator’s final account, it was proper, under 1 Comp. Laws 1897, § 673, to submit as questions of fact to a jury the issues whether the administrator had agreed to serve without compensation, and whether a tax title bought by him in the name of another was taken for the benefit of the estate,

      2. Same — Compensation—Evidence.
    Where, in proceedings to settle an administrator’s account, contestant testified that she consented to his appointment by reason of his promise to act without compensation, a written consent of contestant to his appointment as administrator in a foreign jurisdiction was properly excluded, since it did not tend to negative contestant’s testimony.
    3. Same — Sale of Property.
    Where an administrator, after obtaining an order from the probate judge permitting him to sell the personal property of the estate “at private sale, at the best price obtainable,” sold the same at auction at a sacrifice, without giving notice of the sale, as required by 3 Comp. Laws 1897, § 9431, it was proper to charge him in his account with the difference be. tween the value of the property and the amount realized.
    4. Same — Conversion—Inventory—Value—Appeal.
    Where the court, in settling an administrator’s final account, charged him with property converted at its inventory price, it will be assumed on appeal that such price, in the opinion of the court, represented the actual value of the property.
    5. Same — Reopening Partial Account — Fraud.
    Items allowed to an administrator on a partial account, after notice to persons interested as required by 3 Comp. Laws 1897, § 9441, are not open to attack in the final accounting, except on the ground of fraud unknown at the time of allowance.
    Error to Wayne; Waite, J.
    Submitted April 6, 1900.
    Decided July 7, 1900.

      Amy Johnston Morton appealed from an order of the probate court allowing the final account of William Johnston, Jr., as administrator of the estate of William Johnston, Sr., deceased. From a judgment for contestant, the administrator brings error.
    Modified.

      Moore & Moore, for appellant.

      T. M. Morton and W. H. Woodbury, for appellee.
   Montgomery, C. J.

The case below was an appeal from the allowance of the account of William Johnston, administrator of the estate of William Johnston, Sr. The appeal was tried before Judge Waite and a jury. It was claimed by Mrs. Morton that the administrator should be charged with the appraised value of the personal property, instead of the proceeds of the sale thereof; that a certain $225 claimed to have been paid for a tax title should not be allowed; that a charge in this account of $75 for services should not be allowed, for the reason that the administrator agreed to act without compensation; and that $150 credit to the administrator, allowed in his first accounting, should be charged back to him, for the same reason. The court determined, as matter of law, under the proofs, that the administrator had no l'ight to sell the personal property, and charged his account with $761.50, the inventoried price, less $65,. which had been credited to the estate as the proceeds of the sale of the property. The questions whether there was an agreement by the administrator to serve without compensation, and whether the tax title was purchased for the benefit of the estate, were submitted to the jury. The first question was answered in the affirmative, and the latter in the negative. The court thereupon disallowed the item for tax title, and the charge of $75 for services in the present account, and also charged back $150 allowed for services in the earlier account.

It is claimed that the court should not have called a jury at all, as the case involves an accounting for services and allowances, which, are discretionary. But we are satisfied that it was proper to submit to the jury the distinct questions of fact which were decided. If there was an agreement to serve without compensation, no discretion of the court could be invoked in fixing the amount to be allowed. So, if the tax title was not bought for the benefit of the estate, it was not a proper charge. The case is in this respect unlike Gott v. Culp, 45 Mich. 265 (7 N. W. 767); Wisner v. Mobley's Estate, 70 Mich. 271 (38 N. W. 262); and the other cases cited by counsel for the administrator. That it is proper to submit a question of fact to a jury, see 1 Comp. Laws 1897, § 673; In re Stebbins' Estate, 94 Mich. 304 (54 N. W. 159, 34 Am. St. Rep. 345); Grovier v. Hall, 23 Mich. 7.

The contestant testified that the administrator procured her consent to his appointment as administrator by agreeing to act without compensation. The administrator offered in evidence a consent that he be appointed administrator in Canada, which was excluded as immaterial. This ruling was right. We fail to see how it tended to negative the testimony of contestant.

Personal property came into the hands of the administrator, inventoried at $761.50. In his account the estate was credited with but $65, proceeds of an auction sale of this property. It appears that in April, 1892, the administrator filed a petition, under section 9431, 3 Comp. Laws 1897, asking that he be authorized to sell the property at public or private sale. The probate judge-made an order that he sell “at private sale, at the best price obtainable.” The statute cited expressly provides that, in case an order to sell at auction be made, the court shall direct the mode of giving notice of the time and place of sale. This was not done in this case, nor was any notice of the intended sale given to the distributees. The administrator having sought authority and obtained it, he must be held bound to pursue the authority granted. It becomes unnecessary, therefore, to decide whether the situation of the estate was such as to justify an order of sale. Clearly, the administrator did not follow the authority granted. The circuit judge charged the administrator with the property at its inventoried price. We must assume that the court was of the opinion that this represented its value. This item will not be disturbed.

The jury having found that there was an agreement to administer the estate without compensation, the circuit judge disallowed the claim for compensation since the rendition of the last account, and also surcharged the account of the administrator with the item of $150 allowed in the first account for services. In any view, the item of $75 was open to dispute. Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013). And, as the jury found an agreement to act without compensation, we think the charge was properly disallowed.

Was the allowance of the first account so far tentative that the items are open to attack when no fraud is shown ? No claim is made that the parties were not notified of the hearing on this account, and the statute (3 Comp. Laws 1897, § 9441) requires such notice. We are cited to cases from other States holding that the allowance of an administrator’s annual account is only prima facie evidence of its correctness, but we find no case in which this is held under a statute like ours. The case of Musick v. Beebe, 17 Kan. 47, is illustrative. In that case it was held that there was a broad distinction between the allowance of the annual account and the final account. The reason given is that the annual accounts are allowed without notice to those interested, while notice of settlement of final accounts is required. As to the item for services included in the first account, we think the contestant should have made this objection thereto on the hearing of that account, and, failing to do so, she is concluded; it appearing that she was in no way misled by any fraud of the administrator. Had there been any omission of credit or concealment of assets, a different rule would apply.

The only remaining item is the charge for tax title obtained on property of the estate by the administrator, and taken in the name of another. The jury found that this title was not taken in the interest of the estate, and there was abundant evidence to justify the finding.

The account of the administrator will be credited with this item of $150, and, as he is charged with interest on this amount in his account, $53.15 of interest should be deducted; leaving the amount for which he should account to the estate $1,638.85, as of the date of the judgment below. The administrator will recover costs of this court, to be paid out of the funds in his hands. In all other respects the order of the circuit court is affirmed.

The other Justices concurred.


text:
    FEIGE v. BURT.
    1. Corporations — Value op Stock — Good Will.
    Good will is an element in determining the value of stock in a corporation. t

    a. Same — Witnesses—Basis op Opinion — Cross-Examination.
    Where it is shown, on cross-examination of a witness who has testified that shares of a certain corporation are worth par, that the tangible assets of the corporation are worth less than the par value of its stock, it is proper on redirect to ask the witness what, aside from the value of the property of the corporation, he took into account in fixing the value of the stock.
    3. Same — Conversion op Stock — Damages—Corporate Assets —Sale on Foreclosure.
    In trover for the conversion of shares of corporate stock having no market value, defendants were not entitled to have the value determined by the amount realized from sales of the corporate assets subsequent to the conversion; the personalty having been disposed of by the officers of the corporation, and the realty having been sold under a mortgage owned by defendants.

      4. Same — Excessive Verdict — Remission—New Trial.
    Where the jury, in an action for the conversion of shares of corporate stock, allowed plaintiff 95 per cent, of the par value, when the evidence showed that the shares had no market value, that the capital stock had been impaired nearly 20 per cent., that all of the accounts were not collectible, and that the corporation had never been able to do a profitable business, it was error to deny a new trial, unless on condition that plaintiff should remit a part of the verdict.
    Error to Saginaw; Snow, J.
    Submitted April 12, 1900.
    Decided July 7, 1900.
    Trover by Ernest Feige against Wellington R. Burt and the Home National Bank of Saginaw. From a judgment for plaintiff, defendants bring error.
    Modified.

      Humphrey & Grant, for appellants.

      Weadock & Purcell, for appellee.
   Montgomery, C. J.

This case has once been reviewed by the court. The opinion of the court on the former hearing is reported in 118 Mich. 243 (77 N. W. 928). On the second trial of the case a judgment of $14,313.09 was recovered on the finding by the jury that the value of the stock of plaintiff at the time of the conversion was $19,000, and that such conversion took place on the 10th day of February, 1896. A motion for a new trial was duly entered, based on several alleged errors upon the trial, and also upon the claim that the verdict was excessive. This motion was overruled.

The bill of exceptions contains substantially the entire testimony, as well as the proceedings on the motion for a new trial. There are 134 assignments of error. To attempt a discussion of all these assignments would extend this opinion far beyond reasonable limits. For convenience we shall deal with the case by reference to the main propositions contended for by counsel for the appellants, which are summarized in their brief as follows:

1. The only conversion of plaintiff’s stock was brought about by the execution sale of June 24, 1896, and th value of his stock must be determined as of that date.

2. The value of plaintiff’s stock in the company is to be determined by the results produced from the sale and disposition of its personal property and assets by its officers, and through the foreclosure of the real-estate mortgage, provided it is shown that the officers of the company acted in good faith, and disposed of the assets in the course of trade, for the best prices obtainable at the time of such sales.

3. The value of the real estate of the Feige Desk Company, so far as the same is to be considered as an element in determining the value of the stock, must be taken to be the sum of $10,600, the amount procured at the mortgage foreclosure sale.

4. In determining the value of the stock of the Feige Desk Company, no consideration is to be paid to the question of the good will of the concern.

5. The question of the motive of the defendants in any of the transactions involved in this case is entirely immaterial and irrelevant.

It is contended that there was no evidence justifying a finding by the jury that a conversion of the stock took place on the 10th of February. In determining this question we must treat the law of the case as settled by our former decision. The testimony offered on behalf of the plaintiff on the present trial does not differ materially from that considered in our former opinion. We have given careful consideration to the testimony offered in defense, and, while it is of a character to raise a question for the jury, we are not able to say that it conclusively negatives that given by the plaintiff, which we have held sufficient to justify a finding of conversion of the stock on February 10, 1896.

The plaintiff testified that the stock of the company was worth par in February, 1896, and, after being cross-examined as to the property of the company, he was asked-on redirect what, aside from the property of the company, he took into account in fixing the value of the stock, and answered that the good will of the business and cost of advertising was worth at least $25,000. This was objected to as incompetent and immaterial, and it is now insisted that it was prejudicial error to admit this testimony. We think this was proper redirect, It was competent for the plaintiff, who was entirely familiar with the property and business of the corporation, to express an opinion as to the value of the stock. It having appeared on the cross-examination that the tangible assets of the corporation were less than the par value of the entire capital stock, it was proper to show on redirect that‘his direct examination was based upon the good will of the concern as well as its assets. If this was not permitted, the credibility of the witness would have been impeached, and no opportunity offered to explain that his estimate of value given on direct examination was honest. Good will is an element in determining the value of stock in a corporation. Long v. Evening News Ass’n, 113 Mich. 274 (71 N. W. 492); Washburn v. Paper Co., 26 C. C. A. 312, 81 Fed. 17; Freon v. Carriage Co., 42 Ohio St. 30 (51 Am. Rep. 794); Beebe v. Hatfield, 67 Mo. App. 609.

The contention that the value of the assets of the corporation at the time of the conversion is to be taken to be what was realized on a sale cannot be maintained either by authority or reason. The reasoning as to the real estate adopted by defendants’ counsel is that the sale on mortgage foreclosure was binding upon the corporation, and, as that sale cannot be attacked collaterally, it fixes the value of the property. We should hesitate to give our assent to this proposition, even if the sale had taken place before the conversion of the stock; but we find no case in which it is held that, after a conversion of the stock, the tort feasor may fix its value by a sale under an incumbrance.

The most careful examination has failed to disclose any prejudicial error committed by the learned circuit judge on the trial. The question remains as to whether a new trial should have been granted on the ground that the verdict was against the weight of the testimony. We have frequently had occasion to say that this court will, in determining whether there was error in refusing a new trial, take into account the superior opportunity of the circuit judge to determine the facts. The statute does, however, impose upon us the duty of reviewing such determination, and, when we are convinced that a verdict is excessive, it is as much our duty to apply the corrective as it is to correct error on the trial. We are convinced that this is a case calling for our interposition. The capital stock of the corporation was $82,000. At the time of the conversion of plaintiff’s shares, the capital stock had been impaired $14,158.77, counting the real .estate, personal property, and accounts receivable at their book value. The accounts were not all good. Or. the contrary, the result of closing out the business demonstrated that they were worth something like $11,000 less than their face value. The business had not been profitable, even if it be conceded that the outlook was then favorable. Yet in the face of this situation the jury found the value of this stock to have been 95 per cent, of its par value on the 10th of February, when the conversion took place. Whether the business of the corporation would prove successful in the future depended on the vicissitudes of business and the management. Under such circumstances we are unable to see how any considerable allowance for good will could properly be made. At the most it could not exceed the difference between book value and the actual value of th^real estate. We feel that the verdict in this case was/fexeessive, and unless the plaintiff shall, within 30 days;' elect to remit from the judgment the sum of $6,703.20 as of the date of the judgment, a new trial will be .granted. The defendants will recover costs of this ’CUilL’t.

The other Justices concurred.

       On motion, plaintiff was afterwards required to remit the fur-t’/ier sum of §205.54.


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    RULOFF v. HAZEN.
    1. Mortgages — Settlement.
    Where complainant had taken up a mortgage in 1877, given by him in 1869, and executed a new one for a larger amount in lieu thereof, and payments had been voluntarily made on the amount secured by the later.mortgage, it was proper for the court, in the absence of any satisfactory evidence of the true amount due on the mortgage of 1869, to consider the mortgage of 1877 as a settlement between the parties to that date, and conclusive of the amount due.
    3. Same — Consideration—Recitals.
    Where a mortgage executed by complainant in 1891 was attacked by him on the ground of want of consideration, and it appeared that the only consideration therefor was the sum remaining due under a mortgage given in 1877, the recitals in the later mortgage were not conclusive on the question of consideration, but it was the duty of the court to determine by computation the actual amount so due.
    3. Same — Interest—Deferred Payments — Computation.
    In 1877 complainant executed a mortgage on his property, and in 1891 gave a new mortgage in lieu thereof, the only consideration for which was the amount due on the old one. There was a mistake in the computation, and the circuit judge, in attempting to ascertain the amount due\ computed interest on deferred payments of interest under thAsnortgage of 1877 down to 1891, but made no rest there, continuing to compute interest on the sum due at the maturity of the ftret mortgage down to date. Held, that this was error; that, the total amount unpaid in 1891 should be taken as a new principal in the further computation.
    Cross-appeals from St. Clair; Atkinson, J.
    Submitted April 13, 1900.
    Decided July 7, 1900.
    Bill by George Ruloff against Ezra Hazen to restrain the foreclosure of a mortgage and for an accounting. From the decree rendered, both parties appeal.
    Modified^

      Warren S. Stone and Seth W. Knight, for complainant.

      Law & Moore, for defendant.
   Montgomery, C. J.

On the 12th day of December, 1891, complainant executed to one Ella H, Sprague his note, secured by a mortgage on complainant’s farm, in the sum of $1,085, which was subsequently assigned to defendant. The defendant commenced foreclosure proceedings, and this bill is filed to restrain such proceedings, for an accounting, and to obtain a decree declaring that nothing is due. The bill sets up that complainant became the owner of the land described in 1863, having purchased the same of one Warn; that the land was then subject to a mortgage of $81.23, which complainant assumed, and also gave a purchase-money mortgage to Warn of $143.-72; that these two mortgages were afterwards assigned to defendant; that in August, 1869, the two mortgages were taken up, and a mortgage of $233.14 was given, the rate of interest being changed from 7 per cent, to 10 per cent.; that on the 12th of January, 1877, the complainant again gave a new mortgage of $410; that this mortgage ran along until December 12, 1891, when complainant renewed for $1,085. The bill sets up that payments in sufficient sums to satisfy the original mortgages had been made to defendant before the execution of the present mortgage at all, and that he has paid considerable sums since for which defendant ought to account. It is conceded that, whoever may have been the apparent owner of the mortgage debt, the defendant has been the real owner at all times. The complainant charges that he was misled by defendant’s computations in making the payments and renewals, relying on the defendant’s honesty, but was greatly deceived by him. The circuit court granted relief in part, decreeing that the amount due at the date of filing the bill was $742.98, and that on payment of that sum complainant would be entitled, to a discharge. From this decree both parties appeal. The circuit judge treated the mortgage of 1877 as a settlement of previous dealings, saying that it was impossible to go back of that date, and get at the facts satisfactorily. From this conclusion, complainant appeals.

Defendant was, at the date of the taking of the testimony, 82 years of age and nearly blind. The only memorandum which he was able to find on his books which throws any light on the subject was one of July 1,1876, which shows the amount due at that time to be $387. This sum, with interest added to January 12, 1877, would amount to substantially the $410 for which the mortgage of that date was given. We have met with the same difficulty in going back of that date that confronted the circuit judge.

The complainant claims that the computation of interest on the first mortgages should be at the rate of 7 per cent., while defendant claims that interest at a much higher rate was exacted and agreed upon. This claim, if true, accounts in large part, if not wholly, for the difference between the parties, and, if such payments have been voluntarily made, we are not justified, after this lapse of time, in disturbing the account. See Gardner v. Matteson, 38 Mich. 200; Smith v. Stoddard, 10 Mich. 148 (81 Am. Dec. 778).

We think the circuit judge was right in taking this date for the starting point, if complainant was entitled to any relief. Defendant contends that the mortgage of 1891 is conclusive as to the amount then due. The question involved relates to the consideration of the mortgage now held by defendant. The only consideration for that mortgage is the sum remaining unpaid on the one of January 12, 1877. Of necessity, we are called upon, therefore, to ascertain how much was due on that mortgage in order to learn how much is due on the present one. The circuit judge, in ascertaining the amount due, computed interest on deferred payments of interest under the mortgage of 1877 down to December 12, 1891, but made no rest there, and continued to compute interest on the sum due at the maturity of the first mortgage down to date. We think this is error. Whatever remained unpaid on the 1877 mortgage on the 12th of December, 1891, was then due. The parties saw fit to extend the time of its payment two years, with interest payable annually at 7 per cent. This was computed, and it is not inequitable that the terms of the mortgage be enforced so far as they relate to interest.

The decree will be modified by stating the amount due on July 12, 1899, as $942.62, and in all other respects affirmed. We award no costs to either party in this court.

The other Justices concurred.


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    PETERSON v. PEOPLE’S BUILDING, LOAN & SAVING ASSOCIATION.

    1. Building and Loan Associations — Contra or — Evidence — Printed Literature.
    Where a building and loan association has supplied its agents with printed literature, in reliance on which plaintiff was induced to purchase stock, for which a certificate was issued to him indorsed with the condition that “ the association assumes no obligation other than contained in its printed literature,” it is not in position to claim that certain withdrawal privileges specified in the literature furnished to plaintiff are no part of his contract because not set out in the articles of association, by-laws, or certificate of membership.
    2. Same — Defenses—Ultra Vires.
    The defense of ultra vires, when set up by a building and loan association to defeat its contract with a shareholder, whereby the latter seeks the return of moneys paid into the association, ought not to prevail unless very clearly established.

      Error to Crawford; Sharpe, .J.
    Submitted April 11, 1900.
    Decided September 13, 1900.

      Assumpsit by Swan Peterson against the People’s Building, Loan & Saving Association to recover money paid on a stock subscription. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George L. Alexander, for appellant.

      Joseph Patterson, for appellee.

       Rehearing denied December 11, 1900.

   Moore, J.

The plaintiff sued the defendant in an action of assumpsit to recover for money paid on a certificate for five shares of stock issued by defendant to him, and interest thereon. The case was tried by a jury, who rendered a verdict in favor of the plaintiff. From the judgment entered upon the verdict, the defendant has brought the case here by writ of error.

The defendant’ is a New York corporation. Its principal office was at Geneva, N. Y. The plaintiff offered testimony showing that in 1890 a man representing himself to be the agent of the defendant visited Grayling, sold certificates of shares, and organized a local branch of the defendant company. The plaintiff testified that the agent had with him a small book issued by the defendant, a copy of which he gave to plaintiff to read, and for the purpose of inducing plaintiff to purchase stock in the defendant company. The plaintiff understood from the agent that what was contained in the book left with him was all the by-laws of the company, and testified that he was not furnished with and never saw any other by-laws until they were introduced in evidence by the defendant upon the trial of this case. Contained in the book furnished the plaintiff were the following statements:

“Our plan, limited monthly payments in all classes. Absolutely unforfeitable under our suspension plan. Read this little book carefully. It will interest you. * * * We offer to the public three classes of installment stock. Class Á: Shares in Class A are payable in monthly installments of $1.00 each, due on the last Saturday in each month. There is also a quarterly installment or expense payment of twenty-five cents required on each share, which is due on the last Saturdays of March, June, September, and December in each year. All shares issued in this class have the same quarter dates. Sixty-six monthly installments and twenty-two quarterly installments are all that will be required in this class. The owner may be required to make a lesser number of payments in case the stock matures in less than five and one-half years, or, if it takes more than five and one-half years, no further payments will be required. The installments paid into the loan fund in this class are withdrawable at any time after three years from the date of the certificate, and, if the installments are withdrawn during the first year, an interest of six per cent, will be paid, and, if they remain for more than four years, seven per cent, will he paid.

“Withdrawals: Class A is withdrawable at anytime after date of issue, and the owner will receive the entire amount paid into the loan fund, together with an interest of six per cent, per annum if withdrawn during the four years. If withdrawn after the four years, and before maturity, an interest of seven per cent, per annum will be paid.

‘ ‘ Agent’s authority: No representative, agent, or officer of the People’s Building, Loan & Saving Association has power to waive or alter any of the conditions or terms expressed in the certificate of shares, or to give any receipt for money that shall bind this association, except as herein provided. Further, this association will not be responsible for any bills contracted by any person claiming to be a representative of this association, unless explicit authority is given him by the manager, which he will have in writing. No agent has authority to promise loans to borrowing members, and the association will assume no liability for any representations made, other than contained in the printed literature.”

Plaintiff, relying upon these statements, subscribed for . five shares of stock, for which there was issued to him a certificate, the essential portions of which read as follows:

“This is to certify that Swan Peterson, of Grayling, State of Michigan, is constituted a shareholder in the People’s Building, Loan & Saving Association, incorporated under the laws of the State of New York, and holds five shares therein, of one hundred dollars each; and in consideration of the entrance fee, together with agreements and full compliance with the terms and conditions printed on the back of this certificate, and the articles of association and by-laws adopted by the said association, all of which are hereby referred to and made a part of this contract, the said People’s Building, Loan & Saving Association agrees to pay said shareholder, or his heirs, executors, administrators, or assigns, the sum of one hundred dollars for each of said shares at the end of five years from the date hereof, or at maturity, * * *. all of which are payable in the manner and upon the conditions set forth in the articles of association and by-laws of the association, and terms and conditions printed on the back of this certificate.”

On the back of the certificate, among others, were the following statements:

“First. The shareholder or person who is to pay all installments under this certificate agrees to pay or cause to be paid to the association a monthly installment of one dollar for each share mentioned in the certificate on or before .the last Saturday of each month during the continuance of the certificate.

“Second. The shareholder or person who is to pay all installments under this certificate agrees to pay or cause to be paid to the association a quarterly installment of twenty-five cents for each share mentioned in the certificate on or before the last Saturday of the third, sixth, ninth, and twelfth months of each current year. * * *

“Fourth. If the shareholder or person who is to pay or cause to be paid all installments under this certificate shall fail to pay or cause to be paid any installment required to be paid under this certificate, for three successive months, this certificate, together with all installments paid thereon, shall, without notice, be forfeited to the association, as prescribed by the articles of association and bylaws. * * *

“Sixth. No agent is authorized to change or alter this certificate, or to waive forfeiture, or to extend credit, or grant permits, or alter notices, proofs of any other matter; and the association assumes no obligation other than contained in its printed literature. * * *

“Eighth: The articles of association, by-laws, terms, and conditions, together with the application, are to be construed together as the contract between the shareholder and the association.”

The plaintiff made sixty-nine monthly payments, and also paid his quarterly dues. In September, 1898, plaintiff notified defendant in writing that he desired to withdraw from membership, and applied for a return of the monthly installments paid by him, with interest. He was then notified his stock had been forfeited for nonpayment of dues. No notice was given him of an intention to forfeit his stock because of his failure to make any payment he ought to have made.

The defendant offered in evidence its articles of association and by-laws. It was admitted that defendant claimed to have forfeited the stock some time prior to the letter of September, 1898. No other evidence in the case was offered by the defendant. When the articles of association were adopted, in 1887, section 2 of article 14 read as follows:

“Sec. 2. Any shareholder may at any time withdraw any one or more of his or her shares, and cease payment thereon, provided said shareholder has been a member of the association for six months or more, by giving two weeks’ notice of such desire to the secretary, and paying a fee of one dollar.”

In November, 1888, this section was stricken out. In 1893 section 2 of this article, reading as follows, was adopted:

“Sec. 2. Members holding certificates in class A shall be entitled to withdraw the amount paid into the loan fund on the same, provided such certificates have been in force for three years or more, and that they are in good standing on the books of the association at the time the application for withdrawal is made. Members holding certificates in classes B and C shall be entitled to withdraw the amount paid into the loan fund on the same, provided they have been in force for six months or more, and that they are in good standing on the books of the association at the time application for withdrawal is made. Notice of thirty days may he required by the association from members wishing to withdraw the payments on such stock, and the time and manner of paying shall be the same as on stock at maturity: Provided, that only one-half of the receipts of the- association in any one month shall be applicable to the payment of such withdrawals.”

This section was repealed in January, 1895.

The defendant asked the circuit judge to direct a verdict in its favor. He declined to do so, but charged, in substance, that if the agent furnished the plaintiff with the printed statements offered in evidence, and the plaintiff, relying upon the statements contained therein, subscribed for the stock, the company would be bound by those statements; that if, on the other hand, as claimed by counsel for defendant, this printed matter was not at that time circulated by the company, their verdict must be for defendant. It is now claimed, and was claimed upon the trial of the case, that as the printed book furnished to the plaintiff by the agent was no part of the articles of association or by-laws, and was no part of the certificate which was issued to the plaintiff, what was contained in it forms no part of the contract. Counsel cites 1 Cook, Stock, Stockh. & Corp. Law (3d Ed.), §§ 492, 493, and many cases. There is no doubt about the general rule that the contract between the stockholder and the corporation is evidenced by the terms on the face of the certificate, the articles of association, by-laws, and the printed conditions on the back of the certificate, together with the application for membership. But what are the facts here? The defendant company appointed its agents, and furnished them with printed literature, and sent them out to solicit stock and to organize local branches. Relying upon the printed statements of the company itself, the plaintiff was induced to subscribe for five shares of stock. As an evidence of his right to these shares, a certificate is issued to him, and upon the face thereof he is told that the conditions printed upon the back of the certificate are part of the agreement; and in the sixth condition, after speaking of the authority óf the agent, the statement is there made, “The association assumes no obligation other than contained in its printed literature. ” If this is not equivalent to saying that the holder of the certificate may rely upon the printed literature which had been furnished him to induce him to become a member, then, indeed, words have become meaningless, and may be used to trap" the unwary. See Sawyer v. Building Ass’n, 103 Mich. 233 (61 N. W. 521).

The counsel for defendant now says that the alleged contract was one which the defendant had no power to make under the laws of the State of New York, and that it is ultra vires. No defense of that kind was claimed in the court below. The laws of the State of New York were not put in evidence. There is nothing in the record to indicate that, in making the contract which plaintiff says was made, the defendant exceeded its powers; but, if there was, we think such a defense ought not to prevail unless the law is very clear. It is shocking to one’s sense of justice, when a contract has been completed by one of the parties to it, and after he has parted with a large sum of money, and asks the other party to the contract to perform his part of the agreement, to have it said by the other party to the contract: “In entering upon the agreement I made with you, I exceeded my powers. I will neither perform my contract, nor return to you your money.” A like defense to this was urged by this defendant in the case of O’Malley v. Saving Ass’n, 35 N. Y. Supp. 14. In disposing of the case, the following language was used:

“The first reason urged upon the attention of the court is that, in entering into such a contract as the one under consideration, the defendant has exceeded the powers conferred upon it by the statute. It is possible that in the management of its affairs the defendant may have gone beyond the scope of the statute, but certainly the powers exercised by it were incidental to those conferred; and, inasmuch as it has reaped the benefit of the contract entered into, and there is nothing therein which contravenes public policy, the plainest rules of good faith require that it'should be upheld. Whitney Arms Co. v. Barlow, 63 N. Y. 62 (20 Am. Rep. 504); Rider Life Raft Co. v. Roach, 97 N. Y. 378; 1 Wat. Corp. pp. 600, 601, 605; Thomp. Bldg. Ass’ns, p. 257.”

See, also, Seeber v. Saving Ass’n, 55 N. Y. Supp. 364; 27 Am. & Eng. Enc. Law, p. 359; Carson City Sav. Bank v. Carson City Elevator Co., 90 Mich. 554 (51 N. W. 641, 30 Am. St. Rep. 454).

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    LOVIOLETTE v. BUTLER.
    Deeds — Cancellation—Evidence.
    The evidence failing to establish complainant’s contention that there was an understanding between himself and his grantee that a reversionary clause should be inserted in the deed, his bill, filed after the grantee’s death, to set aside his deed to her, and a subsequent deed, claimed to have been obtained from her by undue influence, was properly dismissed.
    Appeal from Sanilac; Beach, J.
    Submitted June 5, 1900.
    Decided September 13, 1900.
    Bill by Francis Loviolette against N. A. Butler and others to set aside certain deeds. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      E. C. Babcock, for complainant.

      Ered A. Earr and Quinn & Wixson, for defendants.
   Hooker, J.

Complainant made and caused to be recorded a deed to his wife of 40 acres of land, upon which, with another 40 acres, he resided. In October, 1895, she made a deed of the same to her mother for life, remainder to her brothers and sister. This deed was delivered, but there was no change in the possession of the premises. Two years later she died, and complainant has filed the bill in this cause to set aside the deeds, — the first, because it does not contain a reversionary clause, which his bill alleges was to have been made a part of it, according to an agreement with his wife, under which the deed is alleged to have been made; the second, on account of undue influence exerted by the parties upon his wife. The learned circuit judge dismissed the bill, and this, we think, was fully justified' by the proofs. The question, being one of fact, needs no discussion, further than to say that we think it fails to show that there was an agreement for a reversionary clause, or that the same was contemplated, or that Henry Butler, the conveyancer, was directed to insert it.

The decree is affirmed, with costs.

The other Justices concurred.


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    NOLAN v. NOLAN.
    Deeds — Cancellation—Evidence.
    The finding of the circuit judge that, defendant’s deed to certain premises was valid, and not a forgery, as claimed by the bill, being sustained by the evideh.ce, a decree for the defendant was affirmed.
    Appeal from Delta; Stone, J.
    Submitted June 6, 1900.
    Decided September 13, 1900.
    Bill by James Nolan, Jr., and John Nolan against James Nolan, Sr., to remove a cloud from title. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      John Power', for complainants.

      George Gallup and John Cummiskey, for defendant.
   Hooker, J.

The defendant occupies lands which he claims to own by virtue of a quitclaim deed from his deceased wife, dated in 1875, a week after she had executed a life lease of the premises to him. The deed was not recorded until 1898, and is alleged to be a forgery by the complainants, sons of defendant, who file this bill to remove the cloud from their alleged title.

The question before us is one of fact merely, and we are not satisfied that the learned circuit judge erred in his conclusions. The decree must therefore be affirmed, with costs.

The other Justices concurred.