author: McAlvay, C. J.

text:
    BOARD OF EDUCATION OF TRAVERSE CITY v. STRAUB.
    1. Constitutional Law — Charters'—Municipal Corporations— Title — Local Acts — Schools and School Districts.
    A local act entitled “An act to incorporate the city of Traverse City in the county of Grand Traverse, and to repeal all acts and parts of acts in conflict therewith,” was sufficiently entitled to warrant the inclusion of provisions for the board of education and establishing a school district (Act No. 424, Local Acts 1895); especially after 20 years had passed during which the board of education had exercised its franchise and privileges as authorized by the act; and in view of 2 Comp. Laws, § 4650 (4 How. Stat. [2d Ed.] § 9871), providing that school districts shall be presumed to be legally organized after exercising the franchise of a district for two years.
    2. Same — Schools and School Districts.
    The legislature by Act No. 279, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5442), has retained sole power to alter, amend or repeal special acts affecting the public schools. The electors of a city have no authority to amend the provisions of an act establishing the school district of Traverse City, by including matters iii relation thereto in a new charter adopted under the Constitution and laws of 1909.
    3. Schools and School Districts — Bonds—Board oe Education —Authority to Issue.
    The school district of the city of Traverse City was authorized to issue bonds to raise money to build and repair school buildings, under the provisions of the general law, which are made applicable by the express terms of section 10, title 7, of Act No. 424, Local Acts 1895.
    4. Same — Bonding Limit — Statutes.
    And the limit of bonded indebtedness fixed by Act No. 12, Pub. Acts 1911 (4 How. Stat. [2d Ed.] § 9932), amending 2 Comp. Laws, § 4717, and providing that the district may issue bonds up to 10 per cent, of the assessed valuation or $100 per capita, based on the census of school children, was also applicable to said city, under section 10, title 7 of tbe local act.

      5. Same — Elections.
    And, on the same ground, the election might be held at an annual or special meeting as the general law authorizes.
    6. Same — Delay in Issuance.
    The fact that the bonds were voted in 1913 and not issued until the next year would not be a reason for challenging their validity, the evidence tending to show that a contract had been let for the building of a schoolhouse and that the money was not needed until the later date.
    Certiorari to Grand Traverse; Mayne, J.
    Submitted July 25, 1914.
    (Calendar No. 26,317.)
    Decided October 2, 1914.
    Mandamus by the board of education of the city of Traverse City against John G. Straub, mayor of the said city, to compel respondent to sign a series of bonds. Writ denied: relator brings certiorari.
    Reversed.

      Coveil & Cross, for appellant.

      John W. Patchin, for respondent.
   McAlvay, C. J.

These are certiorari proceedings to review the action of the circuit court for the county of Grand Traverse in denying relator a writ of mandamus. Relator is a school district comprising all the territory within the limits of the city of Traverse City. Act No. 424 of the Local Acts of Michigan was passed by the legislature of 1895, said act being entitled:

“An act to incorporate the- city of Traverse City, in the county of Grand Traverse, and to repeal all acts and parts of acts in conflict therewith.”

This was the act under which this city, formerly a village, was incorporated. By title 7 of said act the following provision is made:

“Public Schools.
“Sec. 1. The city of Traverse City shall constitute one school district. The members of the board of education shall be a- body corporate by' the name and style of The Board of Education of Traverse City,’ and by that name may sue and be sued, and shall be subject to the laws of this State relative to corporations that may be applicable thereto. They shall hold and control all moneys, real and personal property, or other rights belonging to said school district, and shall use and expend the same solely for the benefit of the public schools of said city.”

By amendments to section 2, tit. 4, and to section 2, tit. 7, of this act, made by Act No. 631, Local Acts of 1905, it was provided that the board of education should consist of the mayor and five .resident electors duly elected at the annual election of 1906, and annually thereafter one or more members for the term of three years. These members of the board of education were to be elected at the annual city election. The mayor was designated as president, the city treasurer as treasurer, and the city clerk as clerk of said board of education.

Title 7 also contained the further material provision:

“Sec. 10. All provisions of the general laws of this State relative to schools shall apply and be in force in said city except such as may be inconsistent with the provisions of this act, or with the by-laws and ordinances of the board of education made under this act.”

From the time of its creation under the act of 1895 up to the present time relator continued to exist as a body corporate and to administer the affairs of this school district by virtue of the powers and authority thereby granted. On February 28, 1913, claiming by authority of the act under which it was incorporated and amendments thereto, and all applicable provisions of the general laws of _ this State relative to public schools, relator, having determined that a greater sum of money was required for the erection and repair of school buildings within said district than could be raised by tax in any one year, under the city charter, adopted a resolution providing for submitting to the electors of the district the question of borrowing $78,000 and issuing bonds therefor at the regular election in said school district, to be held April 7, 1913. This election resulted in a vote of 1,105 votes cast in favor of, and 333 votes against, the proposition.

Having been authorized by a majority of the electors voting at this election to borrow said money and issue bonds therefor, the said board of education secured and adopted plans for a proposed school building, and on May 29, 1913, entered into a contract for the erection of a new school building, for the sum of $39,759. The contractor, under said contract, at once began the construction of the same, which, at the time mandamus proceedings were instituted, was nearly completed. Relator also adopted by resolution the form of the bonds to be issued, caused the same to be prepared for execution, and afterwards presented them to the mayor to be signed by him as its president. Respondent, mayor of Traverse City, refused to sign such bonds as president of the board of education and gave his reasons therefor in writing. Thereupon relator authorized by resolution the institution of proceedings against respondent for a writ of mandamus to compel him to sign said bonds. The petition was duly filed and served. Respondent answered, and upon the issue presented a hearing was had which resulted in an order and judgment of the court denying such writ. The case is before us for review upon a writ of certiorari sued out by relator.

Relator and appellant groups the questions to be considered, stating them as follows:

“(1) Legality of the organization of the school district.
“(2) Effect upon the school district of the adoption of the revised charter of 1913.
“ (3) Authority of the school district to issue bonds.
“(A) Legality of the bonding election.
“(5) Effect of the lapse of time since bonds were voted.”

1. Respondent questioned the legality of the organization of the school district upon the ground that in the title of Act No. 424 of the Local Acts of 1895, under which the city of Traverse City was incorporated, the organization of a school district is not included, and therefore it is invalid within the prohibition of the Constitution that no act shall embrace more than one subject, which shall be expressed in its title. As far as we are able to find, this is the first time this question has been raised. Local acts for the incorporation of cities from the time of the adoption of the Constitution of 1850 have been passed by the legislature repeatedly entitled in practically the same language as the act in question, and have provided for the organization of school districts, creating all the usual and necessary machinery for establishing and conducting public schools within their limits. Further, chapter 88, 1 Comp. Laws, which makes provision for the incorporation of cities, being Act No. 215, Pub. Acts 1895 (being the year in which the- act under consideration was passed), is entitled “An act to provide for the incorporation of cities of the fourth class.”

Section 1 of the chapter of this act devoted to “Education” (being compiler’s section 3338) provides:

“Each city incorporated under this act shall constitute a single school district. Such school district shall be a body corporate, by the name and style of the 'public schools of the city of-’ * * * and shall possess the usual powers of corporations for public purposes; and in that name may sue and be sued, and purchase, acquire, hold and dispose of such real and personal property as is authorized to be purchased, acquired or disposed of by this chapter. * * ‡

In the case of the charters of other cities, as well as the one under consideration, which have been granted by special acts of the legislature to municipalities and accepted by them, it is clear that the matter of providing schools and the means of education has always been considered an important part of the functions of every municipality the organization of which was as essential as the organization of any department of the city government. Not only does this appear from the repeated instances of granting charters to cities providing for the organization of public schools without designating that subject in the title, but also from the fact that for many years this has continued to be accepted by the legal profession as a proper construction of such entitling.

Relator, from the time of its incorporation under and by virtue of the act of 1895 up to the present time, as a body corporate has exercised the franchises and privileges of a school district for about 20 years. By statute it is presumed to have been legally organized.

“ * * * Every school district shall, in all cases, be presumed to have- been legally organized when it shall have exercised the franchises and privileges of a district for the term of two years. * * * ” Section 4650, 2 Comp. Laws (4 How. Stat. [2d Ed.] § 9871).

There is no merit in the claim that title 7 of the act in question is void because the matter of establishing a school district is not expressed in the title.

2. By reason of the adoption of a revised charter by the electors of the city of Traverse City in 1918, respondent claims that the provisions of Act No. 424 of the Local Acts of 1895 are repealed and he is no longer president of the board. The act under which this charter was revised is Act No. 279, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5442 et seq.), entitled “An act to provide for the incorporation of cities and for changing their boundaries.” In the revised charter, under title “The Board of Education,” we find the following provision:

“Sec. 230. The city of Traverse City shall constitute a single school district. The board of education shall be a body corporate by the name and style of the Board of Education of Traverse City,” etc.

An examination of this act shows that this subject was not expressed in the title, and that the body of the act expressly prohibited any such local legislation.

“Each city may in its charter provide: * * * (p) for altering, amending or repealing any special act affecting any existing municipal department, but the department in control of the public schools shall not be construed to be a. municipal department.” Section 4, Act No. 279', Pub. Acts 1909, subd. p, p. 500.

This section provides for permissive changes which may be made in existing charters. In the subdivision above quoted the fixed legislative intent already mentioned — to protect and preserve the public schools of the State — is apparent, and interference with such schools is prohibited. It does not require argument in view of the provisions of this act to make it clear that the legislature retained in itself the sole power to alter, amend, or repeal special acts affecting the public schools of the State. The electors of Traverse City, therefore, had no authority to amend the provisions of Act No. 424, Local Acts of 1895, relative to public schools, being title 7 of said act.

It follows that the adoption of the revised charter of 1913 in no manner changed or affected the status or powers of relator as a body corporate or the provisions of the original charter respecting the public schools of the city of Traverse City, and that respondent is the president of the board of education of the city of Traverse City, the rejator herein.

3. The authority of the school district to issue bonds is challenged by respondent not only upon the ground that it no longer is a legal entity, but that .under the provisions of the charter of 1895 no such authority was given. In a recent case this question was considered at length and passed upon against the contention of respondent.

In the case of Public Schools of Muskegon v. Smith, 173 Mich. 570 (139 N. W. 264), which upon its facts is very similar to the instant case, relator was incorporated under Local Act No. 281 of 1899, which, among other things, contained in identical words the provisions above quoted from the act under which relator was incorporated respecting all provisions of the general laws of the State relative to public schools being applicable and in force, in said district. This court held that, under its charter and the laws of the State relative to public schools, the relator was authorized to raise money by taxation for the purposes intended and to issue bonds for the same. Under the charter creating it relator in the instant case was in terms authorized, among other things, to raise money to repair schoolhouses, and in the notice under which the election was held it was expressly stated that the money raised was to be expended for the erection and repair of school buildings.

A further contention bearing upon the legality of the bonds is that the amount to be raised was larger than authorized by the charter. This court held, in Public Schools of Muskegon v. Smith, supra, that the provisions of the general school laws are applicable to relator’s district, under section 4717, 2 Comp. Laws, as amended by Act No. 12, Pub. Acts 1911 (4 How. Stat. [2d Ed.] § 9932). It therefore follows, the sum of $78,000 was within the limit provided by this section as amended, and consequently authorized by law.

4. Respondent challenges the legality of the bonding election. This contention is based upon the claim that the bonding election was held at the annual meeting of the district, and not at a special meeting called for that purpose, as required by the terms of section 7, tit. 7, of the act under which relator was incorporated. We again refer to the holding in the case of Public Schools of Muskegon v. Smith, supra, that the provisions of the general school laws are. applicable and may be invoked by relator. Under the provisions of section 4717, 2 Comp. Laws, as amended, supra, such questions may be submitted at an annual or a special meeting called for that purpose.

5. Another question presented relates to the matter of delay in issuing these bonds. They were voted in April, 1913, and issued for signature in April, 1914. This question was suggested by respondent in the case of Public Schools of Muskegon v. Smith, supra, but was not passed upon. In the instant case it appears that relator, within 30 days after it was authorized to issue bonds for the purposes mentioned, let a contract for the construction of this school building, and that the same had proceeded almost to completion at the time the bonds were issued and presented to respondent for his signature. A necessary inference would be that these bonds were not issued until needed. We do not find in this delay any reason for criticising relator. On the contrary, it would seem commendable that this board was businesslike in saving to the school district as much interest as possible upon this considerable sum of money.

From the foregoing conclusions we find that the circuit court was in error in denying relator a writ of mandamus.

The judgment of the circuit court is therefore reversed, without costs.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    ROBBINS v. VANDERMEIDEN. ROBBINS v. CAMPMAN.
    1. Garnishment — Disclosure—Interpleader—Partnership.
    Upon the disclosure of a garnishee that .a debt owing by him was due to the principal defendant and another, as copartners, doing business under the name and style of Grand Haven Cement Company, which was interpleaded, the court finding that the fund belonged to the partnership, an order should have been entered awarding the fund to the copartnership, and the inquiry should have terminated.
    2. Partnership — Names—Statutes.
    After a copartnership had been summoned in to sustain its claim to the fund which had been garnished, and after the court had made a finding that such fund belonged to it, and not to the principal defendant, the fund could not be awarded to plaintiff on the theory that the copartnership had not properly registered under Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), where no affirmative relief was demanded in its behalf and it was not in court voluntarily or as a suitor.
    Error to Ottawa; Cross, J.
    Submitted January 22, 1914.
    (Docket No. 51.)
    Decided October 3, 1914.

      Garnishment proceedings by Nathaniel Robbins against Henry J. W. Campman in which the Grand Haven Cement Company was interpleaded, to establish its claim to the fund or indebtedness which was shown by the disclosure. Judgment for plaintiff. Defendant garnishee brings error.
    Reversed.

      Coburn & Misner, for appellants.

      Walter I. Lillie, for appellee.
   Bird, J.

Plaintiff obtained a judgment by default in November, 1911, against the defendant Vandermeiden, for $463.17. In June, 1912, he caused a writ of garnishment to be issued out of the circuit court and served upon Campman, the garnishee defendant. The garnishee defendant disclosed that he was not indebted to Vandermeiden for the construction of a cement sidewalk, but was indebted for the same to the Grand Haven Cement Company. Following the disclosure both the Grand Haven Cement Company and the garnishee defendant filed motions to dismiss the garnishee proceeding, but both of these motions were denied. Later, upon motion of plaintiff, an order was made interpleading the Grand Haven Cement Company as claimant. The Grand Haven Cement Company was a copartnership composed of the principal defendant and Henry Swafink. There appears to have been a contest, and the court found that the fund garnished did not belong to the principal defendant, but that it did belong to the Grand Haven Cement Company. It was further found by the court that while the fund belonged to the Grand Haven Cement Company, it could not establish its claim thereto by reason of its failure to file with the county clerk the certificate required by Act No. 101 of the Public Acts of 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), relating to copartnerships, and in consequence thereof he awarded the fund which had been paid into court, to the plaintiff.

Complaint is made that the trial court was in error in denying the motion to dismiss the garnishee proceedings, and also in awarding the fund to the plaintiff. Appellant makes the argument that the only way in which the court could justify his order awarding the fund to the plaintiff was to first find that it was owing to the principal defendant. This position is well taken and is supported by both reason and authority. 20 Cyc. p. 983; Farwell v. Chambers, 62 Mich. 316 (28 N. W. 859); Clay Lumber Co. v. Coal Co., 174 Mich. 613 (140 N. W. 912).

The inquiry which was instituted by the garnishee proceeding was whether any sum was owing by the garnishee defendant to the principal defendant. The disclosure of the garnishee defendant stated that he was not so indebted, but was indebted to the Grand Haven Cement Company. This ended the inquiry, and was final unless the plaintiff desired to contest the truth of the disclosure of the garnishee defendant that he was not indebted to the principal defendant, or unless he desired to have the Grand Haven Cement Company made a party and contest with it the question as to which was entitled to the fund. The latter course was pursued and the court found the Grand Haven Cement Company was entitled to the , fund. When this conclusion was reached it in effect denied plaintiff’s claim that he was entitled to the fund, and ended the inquiry. But the court went farther and awarded the fund to plaintiff after he had, by his finding, denied his right to it, and this order is sought to be justified on the ground that the co-partnership which was entitled to the fund could not establish that fact by reason of its failure to file the certificate required by law. We think the trial court must have overlooked the fact that the copartnership was not voluntarily in court. Neither was it in court as plaintiff asking for affirmative relief. It was in court as a respondent and by force of an order of the court requiring it to show cause, touching the ownership of the fund, and for the purpose of enabling the court to determine to whom it belonged.

It would hardly be consistent to compel the copartnership to become a suitor and then deny to it the right of a suitor. The right to enforce their demands in the courts has been denied to delinquent copartnerships under this statute in Cashin v. Pliter, 168 Mich. 391 (134 N. W. 482, Ann. Cas. 1913C, 697), but in that case the delinquent copartnership was seeking affirmative relief. In the case before us the garnishee defendant has voluntarilj- paid money into court which he confesses belongs to the Grand Haven Cement Company. The plaintiff is not entitled to the money, and neither the principal defendant nor the garnishee defendant claims it; therefore it amounts to a voluntary payment by the garnishee defendant to his admitted creditor, the Grand Haven Cement Company. The judgment awarding the fund to the plaintiff will be vacated, and one entered in the trial court in favor of the Grand Haven Cement Company.

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


author: Stone, J.

text:
    POIRIER v. BARTLETT LUMBER CO.
    1. Master and Servant — Negligence — Personal Injuries — Appliances.
    Where plaintiff and his fellow-servants were employed in raising the supports for a tramway, and the master had provided a derrick to be used in raising the supports, but the workmen used pike poles instead and the timbers slipping from their control fell upon plaintiff, the master was not liable, and a verdict was properly directed for defendant on the ground that, having provided the appropriate appliances and pointed out a safe method of performing the work, the employer had performed his duty.

    2. Same — Warning Servant..
    Nor was there any room for the claim that the employer was negligent in failing to warn plaintiff of the danger, in the absence of evidence that the defendant or some person in the relation of alter ego knew of the workmen doing the work in the manner charged, or th'at they would be liable to do it in that way.
    3. Same — Safe Place — Assumed Risk.
    Nor was the defendant liable for failing to provide a safe place to work, where plaintiff claimed he slipped on ice which was covered with snow, and was unable to escape from under the descending timber; accumulations of ice due to normal weather conditions being known to plaintiff and his coemployees, and the danger being obvious.
    Error to Chippewa; Fead, J.
    Submitted June 2, 1914.
    (Docket No. 2.)
    Decided October 3, 1914.
    Case by Napoleon Poirier against the Bartlett Lumber Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      F. T. McDonald, for appellant.

      Davidson & Hudson, for appellee.

       As to the liability for negligence of coservant in failing to use the instrumentalities furnished by the master, see note in 54 L. R. A. 122.

   Stone, J.

This is an action on the case, in which the plaintiff seeks to recover damages for a personal injury sustained by him on March 19, 1912, while in the employ of the defendant, and while engaged in assisting to erect or widen a tramway at the sawmill of the defendant. The plaintiff at the time of the injury was about 24 years of age. After being engaged in sailing for some years, he had worked in Canada at carpenter work for about two years before coming to this country, in 1908. He had worked about a year around the Soo at what he termed “heavy work,” and had assisted in building a stone crusher plant for the Great Lakes Dredge & Dock Company, which was much the same kind of construction as the tramway upon which he was working when he was injured. He had also worked upon a tramway' for McArthur. Bros, about two years before the accident here involved.

Plaintiff began to work for the defendant early in November, 1911. He first worked at carpenter work on a house of defendant, and was employed at this work until about December 15, 1911, when it was finished, and he then went to work at the sawmill, doing carpenter work. He worked about two weeks at the mill, assisting in constructing the first tramway. The large timbers used as vertical supports in constructing this first tramway were raised by the use of a derrick, or gin pole. Plaintiff did not have anything to do with the actual raising of these timbers for this first tramway. His work consisted in nailing the crosspieces on the top. He saw them use the derrick. A Mr. Belleau was in charge of the carpenters building the houses, and directed the work in constructing the second tramway. After two weeks’ working at the mill, plaintiff went back to work on a house, and continued working there until March 16 or 17, 1912. He was then directed by Belleau to go with him to work at the mill on the construction of the second tramway, or extension. He went down and worked with three others and Mr. Belleau. He first started shoveling snow, and worked at this two or three days, receiving instructions' from Belleau. The snow was about two feet deep. Plaintiff helped shovel the snow for the next part of the tramway, to lay the block foundations for the widening of this tramway. This was done by shoveling away a couple of feet of snow, which up to this time had not been disturbed. This work was done by plaintiff and three other men. When the work started the ground was somewhat frozen, but not hard. Some days it was soft and some hard, depending upon the weather. It became hard after the first. It had thawed a couple or three days before the plaintiff was injured, and was freezing the day of the injury. Under the snow there were some sawdust, slabs, and sand frozen to some depth. Plaintiff testified that he did not know there was any ice under the snow. Some snow was left on the ground, and it was more or less packed down. About 4 o’clock in the afternoon of the day before plaintiff was injured, the raising of heavy timbers used as upright supports for this widening of the tramway was begun. As a foundation for this tramway, timbers were squared on two sides and laid on the ground, resting on two blocks underneath. The snow was cleared away and holes were dug in the ground for these blocks, until a good place to make them fast was found. There were five men engaged in the raising of these timbers, including the plaintiff and Belleau. The latter was giving instructions, and directing the work.

These timbers were raised by pike poles and by hand, instead of a derrick or gin pole. Belleau ordered the men to put these timbers up by pike pole and hand, as it was too slow to use the derrick, although a derrick was there and could have been used. There was testimony that raising these timbers by use of a derrick was the customary and safe way. These timbers were from 13 to 18 feet long, 16 inches in diameter, heavy, green, peeled Norway timber, frozen hard, and weighed from 1,200 to 1,500 pounds each. Plaintiff was injured at about 4 o’clock in the afternoon of the second day, by the falling of one of these timbers. The method used in raising these timbers was for the five men, including the plaintiff and Belleau, to lift the timber up and put their shoulders under the back end, and raise it as high as they could from the ground, the other end being held on the timber upon which it was to stand, then place a cross-tree made from two 2x6 timbers under it to hold it up, and then all of the men (except one who would take care of the end which was to rest on the block foundation) would jab their pike poles into the timber and push it into an upright position, when it was nailed to crosspieces. The timber that fell on the plaintiff had been raised in this manner, and was nearly in an upright position, when it turned and fell, rolling off from all the hooks at the same time. As soon as the timber started to fall, the plaintiff attempted to get away. He started to run, but slipped and fell, and the timber, falling on him, injured him seriously.

The plaintiff testified that in attempting to get out of the way of the falling timber he pushed his right foot into the snow for a footing, and slipped on the ice underneath the snow. The plaintiff testified that this was the first time he had ever used a pike pole, that he had never seen timbers put up in that way before, and that he was given no instructions and received no warning that this method of raising timbers was dangerous, or that the timber was likely to fall. There was testimony that previous to the accident there had been some discussion by the men there employed, as to the desirability of using a derrick instead of the pike poles, and that plaintiff, among others, had discussed the idea of quitting if some change was not made. It was undisputed that the derrick was there, and could have been got ready in a very short time.

At the close of the plaintiff’s testimony, the trial court directed a verdict for the defendant upon the grounds that the plaintiff and Mr. Belleau were fellow-servants, engaged in the same line of employment, working under the same master, and together; that there was no claim in the case that Mr. Belleau was not a competent servant, or a competent workman, and the mere fact that he had some little authority over the other four men. working upon the same job would not take him out of the same class of fellow-servants; that it appeared also that the defendant had furnished a proper appliance and method for doing this work — had furnished a derrick, which, according to the testimony, was safe and proper — that the derrick was accessible and could have been used by the men while doing this work, but that it was rejected, and the method was used by which the plaintiff was injured.

The court also charged the jury as follows:

“In such a case as that the master is not liable for any negligence when he furnishes the proper appliances and proper tools and has pointed out the safe method for those who work at that employment, and if they do not follow the method, but use one of their own, the employer is not liable for negligence.
“It is also claimed that the employer was negligent in not warning the plaintiff. There appears to be no evidence in this case that the defendant, or any person working for the defendant, who would be in the position of a vice-principal, knew that the plaintiff or his associates were doing the work in the manner in which they were doing it, nor that they would be liable to do it in that way. There is nothing to connect the defendant at all with the improper method or unsafe way in which this work was being done, and it would not be the duty of the employer to warn the plaintiff against a practice which was safe, and which the employer, according to the testimony, would have reason to believe was being followed, and, no knowledge having been brought to the employer, or defendant that the practice followed was unsafe, he could not be under any obligations to warn the plaintiff.
“Now, it is also claimed that the defendant has been negligent in not providing a safe place in which to work. It does not appear that this place became unsafe, if it was unsafe, by reason of any want of care on the part of the defendant. The particular act of negligence claimed in this respect is the matter of the accumulation of ice. But it appears that this particular place had been gone over by the plaintiff, and by his fellow-servants; that any condition existing there must have been known to them, or at least it must have been as well known to them as it was to the defendant. The defendant is not a guarantor of climatic conditions, nor the particular condition of any place which may confront workmen on temporary jobs. If this were a permanent employment, his accountability would be held in a more strict manner than where it is merely a temporary job, outside work, and the particular danger, if there was any danger, arises from climatic conditions. It does not appear, gentlemen, from the undisputed testimony in this case that the defendant has been negligent in any of the respects mentioned in the declaration. Aside from that, it might also be mentioned that the plaintiff is a man of mature years; that he has had considerable experience as a carpenter; that some of this has been on rough construction work such as this particular work, or work similar to it; and that he is a man of at least ordinary intelligence, and, as the methods used upon this occasion have been said to be dangerous, it must be apparent that such danger would be obvious to any man of ordinary intelligence, and he would be deemed to have assumed the risk of such danger by his contract of employment.”

A verdict and judgment for the defendant having been entered, the plaintiff has brought the case here upon writ of error, and error is assigned upon the rulings of the court in admitting certain testimony, and also upon the charge of the court, above set forth.

An examination of the record satisfies us that the trial court did not commit any error in the admission of testimony, and the charge of the court so clearly stated the rules of law that are controlling in the case that a discussion of them is not necessary. The law of the case has been so often stated by us that a reference to the cases is unnecessary.

We find no error in the record, and the judgment of the circuit court is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Ostrander, J.

text:
    NAY v. DICKINSON.
    I. Pleading — False Imprisonment — Assault and Battery — Declaration — Directed Verdict.
    On the trial of an action for false imprisonment and assault and battery, plaintiff, who charged that defendant arrested her without a warrant and that he employed more force than was necessary, was properly refused the right to recover for excessive force in making the arrest, not having alleged that, if the arrest was lawful, the defendant used more force than was necessary.

      2. Assault and Battery — False Imprisonment — Arrest.
    "Where defendant attempted to pass over plaintiff’s land to reach a private gravel pit, claiming that he was going to the property of a municipal corporation which had a license to cross the land of plaintiff, who disputed his passage and assaulted defendant, and he thereupon seized plaintiff, threw her into a vehicle and carried her before a justice of the peace, and where she pleaded guilty and was fined, defendant was excused if she intelligently confessed herself guilty of the offense with which he charged her; but if she did not intelligently plead to the complaint and had tried to prevent a trespass by defendant upon her property, using only necessary force, she was entitled to recover.
    Error to Newaygo; Barton, J.
    Submitted June 2, 1914.
    (Docket No. 3.)
    Decided October 3, 1914.
    Case by Harriet Nay against George Dickinson for false imprisonment and assault and battery. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Dunham & Dunham, for appellant.

      E. L. Brooks (A. B. Cogger, of counsel), for appellee.
   Ostrander, J.

The city of Fremont, Mich., purchased land in which was a deposit of gravel. Access to the land was over other premises of the vendors, and was secured to the city by a license, perhaps by the deed of conveyance. In the lane or avenue used by the city is a- gate. Defendant owns land adjoining that acquired by the city, and on his land there is a deposit of gravel. In time defendant came to hold the offices of chief of police and highway commissioner in the city. On August 16, 1912, he and another, with a wagon drawn by two horses, were proceeding to or towards the gravel pit when he found the gate locked and guarded by plaintiff, the wife of the city’s vendor, and perhaps herself a joint owner of some of the land over which defendant was proceeding. She disputed defendant’s passage, but was set aside, the lock broken, the gate opened, and the men proceeded to load and draw away gravel. Plaintiff went to her house, got a chain, without a lock, with which she again fastened the gate, and, arming herself with a club, was found by defendant, returning for another load of gravel, again guarding the gate. She says, among other things:

“After I told Mr. Dickinson he could not go through there, he attempted to take the chain from the gate. He put his hands through the fence and around the post, and I was striking the post, and told him to keep his hands off. I was striking the post all the time, and told him to keep his hands away from there. Mr. Dickinson reached through and got hold of the chain where I was striking, and-1 struck him on the hands once.”

She knew the defendant was street commissioner. Unable to unfasten the gate from the side he was on, defendant climbed the fence and held plaintiff while the other man unfastened the gate, drove through, turned the team about, and, assisting each other, they loaded plaintiff into the wagon and carried her before a justice of the peace. There is testimony tending to prove that before loading her into the wagon defendant placed her under arrest. The prosecuting attorney was present or was called in. A complaint charging plaintiff with an assault and battery upon defendant was made, a warrant was issued and delivered to defendant for service, who made a return, and plaintiff was, according to the record, convicted upon her plea of guilty, and ordered to pay a fine of $5 or be committed to the county jail for ten days. The judgment was not appealed from; plaintiff’s husband later paying her fine.

Plaintiff alleges in her declaration an assault and battery committed by defendant upon her, a false imprisonment, and, in a third count, abandoned at the trial, a malicious prosecution. By direction the jury returned a verdict of no cause of action, upon which judgment was entered. Plaintiff (appellant) says in the brief that upon the trial there were two issues —one, was the arrest of plaintiff by the defendant lawful and justified? the other, if the arrest was lawful, then in making such arrest, did defendant use more force than was necessary? — and that concerning each there was disputed testimony and a question for the jury. The learned trial judge ruled, and correctly, that the declaration nowhere alleges an excessive use of force in making the arrest, and that no such issue was involved.

Eliminating argument addressed to this proposition, the case turned, and turns, upon the arrest and its lawfulness. Counsel do not greatly disagree. It is admitted that if defendant was on his way to take gravel from the city property for city use plaintiff had no right to interfere with him. • It is conceded, as I understand the record, that if defendant was on his way to take gravel from his own pit he was a trespasser. The plaintiff justified, or excused, her attitude and action by claiming that defendant was using, or was seeking to use, her premises, and the city’s license to conveniently remove gravel from his own land. The defendant, by his plea, justifies his action as necessary to protect himself from plaintiff’s assaults while exercising the right of the city to go upon the land, saying that plaintiff had upon a previous occasion been arrested, charged with threatening defendant with great bodily harm and threatening to shoot him. Defendant gave notice, too, that he was at the time an officer having authority to arrest persons committing a breach of the peace, that plaintiff assaulted Mm, and that her conduct warranted him in making the arrest, and that the detention of plaintiff before her arraignment was necessary and justifiable.

Plaintiff did not ask defendant what his purpose was. She assumed — she says she wanted a row— that he was on his way to take gravel from his own land. She gave testimony tending to prove that the load of gravel first taken away was drawn from defendant’s land and pit. Other testimony tends to prove that during the summer considerable material had been drawn from defendant’s pit for city use, and that plaintiff’s husband had forbidden use of his land for that purpose. In short, it is now plaintiff’s contention that she was defending her own and husband’s premises against a trespasser, and was justified in what she did. Such a contention might have raised the controlling issue in the criminal proceeding if it had been asserted upon the trial thereof. She testified she did not know with what offense she was charged in that proceeding, had no trial, did not know she had been convicted or sentenced.

I cannot avoid the conclusion that the jury should have been allowed to determine whether defendant’s errand was to his own or the city sand pit, whether he was, in fact, a trespasser, and whether plaintiff intelligently confessed herself guilty of an assault and battery upon defendant. The whole affair is deplorable. But parties are here standing on their strict legal rights, and these, I think, cannot be determined, on this record, as matter of law. If plaintiff intelligently pleaded guilty to the charge which defendant made against her, she ought to be held bound by her plea and the defendant excused. If she did not, and if she was in fact attempting to prevent a trespass, using no more force than was necessary, she was justified, and defendant was not, by anything now appearing, justified in his course.

The judgment is reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    CHATFIELD v. SINTZ-WALLIN CO.
    1. Fraud — Pleading—Stock—Corporations.
    Where plaintiff’s declaration alleged that she offered in October, 1909, to purchase stock of defendant corporation, which in the following March accepted her proposal, issuing certificates of stock as ordered, hut in the meantime a reorganization took place and defendants knew that plaintiff expected and offered to subscribe for treasury stock, that shares of stock actually forwarded to plaintiff were not treasury stock hut belonged to one of the officers of the company and the purchase price went to him instead of the corporation, that by the second or later plan of reorganization the corporate stock was rendered valueless, and that the financial condition of the defendant company had completely altered at that time, averring the knowledge and participation of the individual defendants, officers and directors of defendant, in the wrongful acts stated, plaintiff sufficiently set forth a cause of action for fraud and would he entitled to recover if the evidence substantiated the allegations of her pleading.

    2. Same — Rescission—Sales.
    The fact that she rescinded her - contract of purchase by tendering hack to the corporation the capital stock which was delivered to her, demanding hack the purchase price, did not preclude plaintiff from bringing an action against the individual defendants.
    3. Same — Evidence.
    Conflicting evidence raising the issue whether or not plaintiff’s husband was her agent, and had knowledge of the facts, which plaintiff claimed she did not know, was properly submitted to the consideration of the jury.
    Error to Kent; Perkins, J.
    Submitted June 8, 1914.
    (Docket No. 14.)
    Decided October 3, 1914.
    Rehearing denied December 19, 1914.
    Case by Nellie C. Chatfield against the Sintz-Wallin Company and others for the recovery back of money paid for stock of said corporation. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Norris, McPherson & Harrington (Oscar E. Waer, of counsel), for appellants.

      Ellis & Ellis, for appellee.

         As to the rescission of subscription to stock for fraud and misrepresentation, see note in 33 L. R. A. 721.

   Ostrander, J.

In the declaration, in the special count, defendants are charged with issuing and circulating a false, fraudulent, and misleading prospectus with respect to the solvency of defendant corporation, the profitableness of its business, and the ability to pay a large dividend on its preferred stock, representing that there was for sale treasury preferred stock of the corporation which, if sold, would increase its issue of preferred stock; the intent and purpose being to induce plaintiff to purchase the stock of defendant corporation and get five hundred dollars of her money. The individual defendants are described as officers and stockholders of defendant corporation, and are charged with conspiring and agreeing together to cheat and defraud plaintiff and to turn over to her worthless stock of the defendant corporation. By means of the false representations and the conspiracy and combination, plaintiff was deceived and induced to pay over to defendant corporation $500 for 5 shares of the treasury preferred stock of the corporation, which purported to be worth, upon the certificate issued therefor, $100 a share. In the same count it is alleged that on or about October 15, 1909, relying upon the said fraudulent representations, plaintiff subscribed for 5 shares of the treasury preferred capital stock of the defendant corporation, and on or about April 11,1910, paid to the defendant corporation $500, and received from it, in exchange, certificates for five and eight-tenths shares of stock, purporting to be treasury preferred capital stock of said corporation—

"Having been informed by her husband, Charles B. Chatfield, who had also subscribed for and purchased stock of the said company, that said company had decided to issue said stock as paying a 7 per cent, instead of an 8 per cent, dividend, and that he, her said husband, had arranged with said company to issue to this plaintiff 5 8/10-shares of said stock drawing a 7 per cent, dividend, instead and in place of 5 shares of said stock drawing an 8 per cent, dividend, so that this plaintiff might have her said $500 so invested in said stock, drawing an 8 per cent, dividend.”

It is alleged that when the false representations were made and when the certificate was delivered the stock was worth nothing. After the false representations were made, and before the money was paid and the certificates of stock delivered, but unknown to plaintiff, the defendant corporation, being bankrupt and insolvent, issued its preferred stock to pay its debts, and made a composition with creditors, or some of them, paying them one-half in preferred stock, one-fourth in cash, and one-fourth in notes. Various details of the alleged bankruptcy and various dealings are set out. It is finally alleged that the stock delivered to the plaintiff was not treasury stock of the defendant corporation and that her money did not go into the corporation treasury. Instead, the money went to defendant Claude Sintz, and it was he, by the aid and connivance of the other defendants, who sold to plaintiff some of the capital stock of the defendant corporation owned by himself, and used the money paid by plaintiff to pay a mortgage for the payment of which he was liable. After learning that she had been defrauded, the plaintiff tendered her stock to the defendant corporation, to the president thereof, demanding that her money be returned to her; the demand being refused. The defendant has never paid any interest or dividend on the said stock nor been able to do so. Plaintiff has been deprived of her money and the use thereof, to her damage $1,000. The count is concluded by pleading the statute (3 Comp. Laws, §§ 10421, 10422), an allegation of the promise of defendants to pay her $1,000 for her damages and injuries, and the final refusal of defendants to do so. The common counts in assumpsit are added. The plea for all of the defendants was the general issue.

At the close of plaintiff’s testimony counsel for defendants asked for a peremptory instruction in their favor, assigning as reasons:

“(1) That the evidence fails to sustain in any degree the allegations of fraud made in the declaration.
“(2) That under the undisputed evidence the prospectus which is claimed to contain all fraudulent allegations or statements upon which the cause of action is based is not shown to have been authorized by the corporation, and is not signed by any one of the individual defendants.
“(3) That the prospectus upon which the cause of action is based is the prospectus offering for sale to the public treasury stock of a corporation, while the evidence — the undisputed evidence of the plaintiff— is that she purchased the individual stock of another, and not treasury stock of the corporation.
“(4) That there is no evidence in the case upon which the jury can assess damages; the rule of damages being that in such a case the plaintiff shall recover the difference between the real value of the stock when it was purchased and the represented value of the purchase price paid, there being no evidence here from which a jury can determine what was the real value of the stock at the time of the purchase.
“(5) That, in so far as the action is based upon a rescission, it is only shown here that tender was made back to the corporation which was not the vendor of the stock and that no tender was made to the defendant, Claude Sintz, who was the vendor of the stock, so that no rescission was made.”

Some' discussion took place, and in the course of it the record shows the following:

“At this point, plaintiff’s evidence having all been taken and plaintiff having rested, counsel for plaintiff, without objection upon the part of defendants, asked to amend the declaration in this case, and thereupon the court stated:
“ ‘I am very firmly convinced that the declaration would cover the point as suggested here, and the only remaining point I can see is the liability as to these defendants.’ ”

What amendment was desired is not clear, none was made, and no formal amendment was proposed. Before the concluding arguments were made, counsel for defendants said to the court, among other things:

“It is my understanding that the case will be submitted to them on the theory that the truth or falsity of that prospectus is not bound in the suit. If I am right as to that it will simplify the argument; other- ■ wise another line of argument will be necessary.”

The reference was to the prospectus of October, 1909, which plaintiff claimed to have read and relied upon. In response the court said:

“I think it is perfectly clear to my mind, from all that has been said, that, as far as the prospectus of 1909 is concerned, it is immaterial excepting so far as it relates to the source from which the stock which was to be issued was to come. This case must rest upon another and a different proposition, if it goes to the jury at all. As I said the other day, the prospectus of 1909 was unsigned, and there is nothing in writing signed by those issuing it which would comply with our statutes of fraud under the repeated decisions of our court, even though the representations should be believed to be false by the jury and the plaintiff induced thereby to take this stock; still under the law there can be no recovery as against the defendant, causing it to be issued or circulated for the reasons stated. But back of that is the other proposition which I believe is -sufficiently set forth in the declaration. The prospectus offered to sell stock of the corporation — treasury stock — and set forth a certain scheme of reorganization. The plaintiff ordered five shares of stock or subscribed for five shares of stock upon the representation contained in this prospectus. Later the plan of organization was changed, and changed materially, in the prospectus which was issued in February, 1910. The question is as to whether the plaintiff before she paid her money and received the stock was advised as to this change and knew about it, and consented to it, and paid her money knowing the facts about the change; secondly, as to whether the defendants jointly and severally, acting in behalf of the company as directors, at the meeting adopted and confirmed this prospectus of 1909, and in so far as any subscriptions for stock had been received under it, and knowingly and wilfully permitted the plaintiff, without her knowledge, to pay her money under the changed conditions and receive stock under a belief that it was treasury stock, when it was not. Whether they knowingly and wilfully permitted this to be done, that, of course, must be determined by the records and what the parties said and did. If there was no ratification or confirmation or adoption by reference or otherwise to this prospectus of 1909 by the act of .the corporation, through its directors, and if the directors did not knowingly and wilfully permit the plaintiff to pay her money in ignorance of the real fact, there can be no recovery. But if they did permit her to pay her money under a mistaken apprehension of what the facts were, she can recover. I understand that it is claimed that .this changes the cause of action; that the declaration taken as a whole is based upon a different theory, viz., the theory of the falsity of the statements contained in the prospectus of 1909. I think perhaps that is true, taking the declaration as a whole that that was the theory of the plaintiff, but, at the same time, the declaration alleges the subsequent proceedings, claims that the plaintiff subscribed for treasury stock and received private stock from Claude Sintz instead, and the plan of organization was changed without her knowledge, and all in all it seems to me that there is sufficient in the declaration to justify the submission of the single question to the jury, and so I repeat the question to be argued to this jury, and as I will charge them when the time comes, if I am not charging them now, will be that these conditions jointly and severally and as officers of this corporation acting for the corporation at that time, knowingly and wilfully so acted as to lead the plaintiff to believe and understand that she was receiving treasury stock of this corporation, and knowingly and wilfully led her to believe and understand that the condition of the company at the time she paid her money and the proposed organization of the company was as stated in the prospectus of 1909. Now, that is as clear as I can state it, gentlemen, generally, and you may confine your arguments to that on both sides.”

In substance and effect the issue finally submitted to the jury is here stated, and a verdict for plaintiff was returned against all of the defendants, the amount • of which is, evidently, the purchase price of the stock and interest. Judgment was entered on the verdict. A motion for a new trial was refused, and errors were assigned upon exceptions taken during the trial and upon refusals to charge, the charge as given, and the refusal of a new trial. Under suitable headings those now relied upon are argued in the briefs and were argued orally.

It is contended:

“(1) Plaintiffs action for a rescission of her contract could be brought only against the corporation.
“(2) The court should have instructed the jury that, under plaintiffs own showing, she constituted her husband her agent and was bound by knowledge obtained by him.
“(8) There was a fatal variance between the pleadings and the proofs and the theory upon which the case was submitted to the jury.
“ (4) The admission of evidence relative to the fraudulent character of the prospectus of October, 1909, was prejudicial, and a new trial should have been granted.
“(5) There was no evidence to sustain the allegations of fraud.
“(6) The court erred in his rulings on the admission of certain documents and evidence.
“(7) Plaintiffs counsel made improper remarks to the jury.
“(8) The court erred in its refusal to instruct and in its instructions to the jury.”

These contentions must be considered in connection with the issue upon which the case was made finally to turn. If that issue is not within the pleadings, then, necessarily, error was committed. If the plaintiff’s declaration, however inartificially drawn, fairly presented the issue which was submitted, then most of the contentions of the appellants are unimportant.

The testimony for the plaintiff supports the following conclusions: Her proposal to buy stock was made to the corporation, was accepted by the corporation, by its officers, and certificates of stock apparently issued by the corporation to her were delivered to her and payment therefor was made- by her to the corporation. Her proposal was made in reliance upon a paper — prospectus—not signed by any one, but bearing date in October, 1909. She made her proposal, or subscription, in writing, in October, 1909. It was not then accepted. In March, 1910, a plan of reorganization of defendant company which differed essentially from the one suggested or proposed in October, 1909, was adopted. Afterwards certificates of stock, as if issued in reply to and acceptance of plaintiff’s proposal to buy stock, were delivered to plaintiff’s husband, for her, and she paid for it by her check, payable to the company. When the stock was issued to her, the officers of the defendant company knew that plaintiff’s proposal, or subscription, was made in reliance upon the plan of reorganization proposed in October, 1909. They knew it was a subscription for treasury stock. By their action she received, not treasury stock, but stock belonging to defendant Claude Sintz, and Sintz, and not the defendant company, got the money on plaintiff’s check. Plaintiff then knew nothing about the new plan for reorganizing the corporation, and supposed that her stock was, in fact, treasury stock for which she had paid the defendant company. The financial condition of the company was not the same in March, 1910, as it was in October, 1909. The plan of reorganization adopted in March, 1910, was essentially different from the one proposed in October, 1909. It is to be presumed that one who would be willing to subscribe for stock under the first plan would not be likely to do so under the second plan; the condition of the defendant corporation being known to him. The stock is, in fact, of no value.

These conclusions correspond with allegations found in the declaration.. Such allegations, standing alone, state a cause of action against the persons who took part in depriving plaintiff of her money. All of the individual defendants knew that plaintiff was not receiving the thing she sought to purchase, and all of them, innocently or otherwise, were parties to the proceedings by which the stock she received was given to her and the money which she paid was lost to her. They aided the defendant Claude Sintz in disposing of some of his stock and in securing money intended by plaintiff for the corporation treasury.

It is true it is alleged and is proven that plaintiff tendered her certificates of stock to the corporation and demanded the amount she had paid for them. But she brought her action for the fraud, of all of the defendants — at least the declaration is sufficient in form for this purpose — and no good reason is perceived for denying her relief because her attitude in tendering the certificates was one of rescission. No one appears to have been surprised at the course taken upon the trial or to have been denied the right to present such testimony as was available touching the issue submitted to the jury. Testimony affecting issues which were withdrawn from the jury was not, in view of the uncontradicted evidence that plaintiff did not receive treasury stock and that her money did not go into the treasury of the company, prejudicial to defendants. The court laid down no rule of damages for the jury. It is stated in the charge of the court that the plaintiff demanded of the defendant corporation when she tendered her certificates the money she had paid and interest. As has been stated, a verdict was returned for the price paid and interest, a sum which, in view of the testimony, is a proper award. Whether plaintiff’s husband was her agent, had knowledge which she did not possess, and concluded her by what he knew, were questions submitted to the jury. It is doubtful if the testimony, in any view of it, sustains the contention of appellants in this behalf.

Upon a review of the entire case, no reversible error is made out, and the judgment is therefore affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
      In re IVES’ ESTATE. JOHNSON v. SKINNER.
    1. Wills — Construction—Intent.
    It is elementary that the primary object in interpreting a will is to ascertain, if possible, the intent which the testator had in mind, and to give effect to it. The whole will should be construed together, so as to give effect, if possible, without violating well-settled .rules of law, to every part or provision of it, provided such an effect can be given consistently with the general intention of the testator as ascertained from the whole will.
    2. Same — Codicil—Interpretation.
    The codicil is to be construed with the will as one instrument.
    3. Same — Evidence—Presumptions.
    There is a presumption, also, that testator intended to dispose of his entire estate by his will and not to die intestate either as to the whole or any part thereof, and the will should be so construed unless the presumption is clearly rebutted by the provisions of the will or by evidence to the contrary.
    4. Same — Estates oe Decedents.
    Where the testatrix disposed of her property by certain bequests and added a residuary clause stating that she gave all the rest, residue and remainder of her estate, both real and personal, and wherever situated to her three brothers and sisters, an undivided third to each, and one of them later died, to whom the testatrix gave $10,000 by a codicil to the will, and who was mentioned in the original draft of the instrument in a. clause which stated that she was sufficiently provided for, and where family history and undisputed circumstances pointed in the same direction, the adopted daughter was not entitled to any share of the residue of the property.
    5. Same — Rules oe Interpretation — Death oe Beneficiary — Effect.
    When it is evident from the whole tenor of the will that testator, in making the gift of an aggregate sum to certain relations, intended to provide for them collectively as a class, the designation of each individual hy name, or the use of distributive words, or words denoting equality, will not be held to make the gift operate as a gift of a separate interest to each individual named, which would lapse by his death before the testator.
    Error to Kent; McDonald, J.
    Submitted June 10, 1914.
    (Docket No. 59.)
    Decided October 3, 1914.
    The probate court for the county of Kent having entered an order assigning the residue of the estate of Marietta Ives, deceased, Helen Ives Johnson, claiming one-third of. such residue, appealed to the circuit court. Judgment was entered in her favor reversing the decree of the probate court and Mary Skinner, as executrix of said estate, and Dwight Skinner bring error.
    Reversed.

      Travis, Merrick & Warner and Jewell & Ewing, for appellants.

      Wilson & Johnson, for appellee.
   Stone, J.

The appellants seek, by writ of error, the reversal of an order of the circuit court which vacated an order of the probate court of Kent county, assigning the residue of the estate of Marietta Ives, deceased, to Wesley Skinner and Dwight Skinner, and which order of the circuit court directed said probate court to enter an order permitting Helen Ives Johnson to share equally in the residue of said estate.

Marietta Ives, a widow, died at the age of about 60 years, upon March 13, 1912, without having had issue. She was the youngest of four brothers and sisters, all of whom lived in Grand Rapids, and none of whom ever had any children. Mrs. Ives was survived by her two brothers, Wesley and Dwight Skinner, but her sister, Hattie Butterfield, died shortly before her, on January 1, 1912, a widow. Mrs. Ives was also survived by Helen Ives Johnson, an adopted daughter, by adoption proceedings taken by Mrs. Ives and her deceased husband in 1890. Mrs. Ives left a will dated September 12, 1901, and a codicil thereto dated January 24, 1908, both of which were duly admitted to probate. The will, after providing for the payment of debts, and funeral expenses, for the erection of a certain monument and caring for certain burial places, and after a specific bequest of $1,000 to a cousin of testatrix, provided further as follows:

“Fifth. After the payment of the above-named debts and expenses and legacies, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, and wherever situated, to my sister, Hattie Butterfield, and • my brothers, Wesley and Dwight Skinner; to each an equal undivided one-third.
“Sixth. I have not forgotten my adopted daughter, Helen H. Ives, but consider that she is sufficiently provided for already.
“Seventh. I appoint Charles E. Ward to be the executor of this my last will and testament.”

Mr. Ward acted as attorney for testatrix in the preparation of the will, and was also one of the attesting witnesses thereof.

The codicil, omitting the formal parts thereof, contained only the following provision:

“Four and one-half: I give, devise and bequeath unto my adopted daughter, Helen H. Ives, the sum of ten thousand dollars, to be paid out of my estate at the' time of the final settlement thereof: Provided, however, that this bequest is made upon the express condition that my said daughter shall not contest or oppose the probate and administration of -my said will, or procure any person to contest the same, or aid in any manner in contesting said will, or in preventing the same being probated and carried out. And in case of any such act or acts on the part of my said adopted daughter, then the provision above mentioned in her behalf shall be null and void, and the sum of ten thousand dollars above mentioned shall be distributed. according to the provision of said will as it existed prior to the making of this codicil.”

Mr. Ward also acted as attorney for testatrix in the preparation of the codicil, and was also one of the attesting witnesses thereof.

The specific legacy of $10,000 to Helen H. Ives, now Helen Ives Johnson, was paid, and the residue of the estate of the deceased consisted of property, most of which was personalty, valued at upwards of $50,000.

In the probate court Helen Ives Johnson, the adopted daughter of testatrix mentioned in the will and codicil, made claim to one-third of the residue of the estate, on the ground that the gift of one-third thereof to Hattie Butterfield, in the will, lapsed upon her death without issue prior to the death of testatrix, and therefore passed to the claimant, sole kin at law of deceased, as intestate property. This claim the probate court disallowed, holding that the interest of Helen Ives Johnson in the estate of deceased was limited to the specific legacy of $10,000, which had been paid, and further holding that Wesley and Dwight Skinner, sole surviving residuary legatees, were entitled to take all of the residue under the will.

From the order thus assigning the residue, claimant appealed to the circuit court, where, upon a trial without a jury, the order appealed from was vacated as above stated. On the trial at the circuit the court admitted, over claimant’s objection, but later struck from the record, certain testimony of Charles E. Ward, who prepared the will and codicil, which testimony was offered in behalf of Wesley and Dwight Skinner, and consisted of statements made by the testatrix to the witness prior to the preparation and execution of the will and codicil, descriptive of her feelings towards the adopted daughter, and her desires in regard to the provisions to be incorporated in her will and codicil. No other facts material to the controversy were disputed at the trial. To explain the record it perhaps should be stated that since the trial of the case Wesley Skinner has died testate, in the said county, and that the said probate court has jurisdiction over all the property of said Wesley Skinner, deceased, including his interest in the estate of said Marietta Ives, deceased.

By appropriate assignments of error, appellants raise two questions which are stated by them in the form of the following propositions asserted by them:

(1) That the residuary clause of the will of Marietta Ives, interpreted in the light of the whole will and codicil, effectually expresses an intent to give all of the residue to the sister and brothers of testatrix, or to such of them as should survive her.

(2) That the trial court erred in excluding from consideration extrinsic evidence tending to show circumstances surrounding the making of the will and codicil, which were necessary to a correct understanding of the terms employed.

We have been greatly aided in this case by the able and exhaustive briefs of counsel upon both sides, as well as by oral arguments. More than three score cases have been cited by counsel having more or less bearing upon the questions involved. We cannot here attempt to review them in detail. An examination of the authorities cited has brought us to the conclusion that the case should be disposed of by the application of a few familiar rules and principles of testamentary construction.

It is elementary that the.primary object in interpreting a will is to ascertain, if possible, the intent which the testator had in mind, and to give effect to it. Rock River Paper Mill Co. v. Fisk, 47 Mich. 212-221 (10 N. W. 344); Barnes v. Marshall, 102 Mich. 248-255 (60 N. W. 468); Wheeler v. Wood, 104 Mich. 414-417 (62 N. W. 577); Gregory v. Tompkins, 132 Mich. 205 (93 N. W. 245).

Our own cases are numerous to the effect that the whole will should be construed together, so as to give effect, if possible, without violating well-settled rules of law, to every part or provision of it, provided such an effect can be given consistently with the general intention of the testator as ascertained from the whole will. 40 Cyc. p. 1408; Tewksbury v. French, 44 Mich. 100-102 (6 N. W. 218), and cases cited; Des Grand Champ v. Duflo, 169 Mich. 104, 105 (135 N. W. 98), and cases cited. Many more of our own cases might be cited to the same effect.

Another rule is that the will and codicil are to be construed together "as one instrument. Dexter v. Gordon, 136 Mich. 235-239 (98 N. W. 1016); Sondheim v. Fechenbach, 137 Mich. 384 (100 N. W. 586).

The presumption is that a testator intended to dispose of his entire estate, and not to die intestate either as to the whole or any part thereof, and the will should be so construed, unless the presumption is clearly rebutted by the provisions of the will or by the evidence to the contrary. 40 Cyc. p. 1409; Toms v. Williams, 41 Mich. 552-565 (2 N. W. 814); Des Grand Champ v. Duflo, supra.

In the instant case we have not only the presumption to aid us, but we have also the express language of the testatrix, that she intended to give the rest, residue, and remainder of her estate to her sister and brothers.

In Toms v. Williams, supra, Chief Justice Campbell said:

“It has always been a primary rule of testamentary construction to look to substance rather than form. Our statutes favor this rule, and also require all intendments to be made to prevent a partial intestacy.”

An examination of the will and codicil satisfies us that it was the intention of the testatrix to give to her adopted daughter only the sum of $10,000'upon the terms stated, and to give to her brothers and sister the residue of her property. Not only do the instruments when read together indicate this, but the family-history and undisputed circumstances all point in the same direction. The fact that she did not change her will after the death of her sister, Mrs. Butterfield, is a significant circumstance.

We are of opinion that the following claim of appellants is supported by the weight of authority:

“Where it is evident from the whole tenor of the will that testator, in making the gift of an aggregate sum to certain relatives, intended to provide for them collectively as a class, the designation of each individual by name, or the use of distributive words,‘or words denoting equality, will not be held to make the gift operate as a gift of a separate interest to each individual named, which would lapse by his.death before the testator.”

See 40 Cyc. p. 1930, and cases cited; Jackson v. Roberts, 14 Gray (Mass.), 546; Stedman v. Priest, 103 Mass. 293; Meserve v. Haak, 191 Mass. 220 (77 N. E. 377); Smith v. Haynes, 202 Mass. 531 (89 N. E. 158); Hoppock v. Tucker, 59 N. Y. 202; Roosevelt v. Porter, 36 Misc. Rep. 441 (73 N. Y. Supp. 800); Mann v. Hyde, 71 Mich. 278 (39 N. W. 78); Bolles v. Smith, 39 Conn. 217.

At the argument our attention. was called by counsel for appellee to Strong v. Smith, 84 Mich. 567 (48 N. W. 183). We do not think that that case modifies the rule we are considering, but deals with a case falling within the terms of the statute there cited, which has no application here, as Mrs. Butterfield left no issue. We are of the opinion'that, in the disposition- of the residue of her property, the testatrix was dealing with a class, under which the survivors take the share of the one who died without issue.

We are not unmindful of the many cases cited by counsel for appellee from other States. The circumstances surrounding the instant case were peculiar and exceptional. Not only was the heir at law an adopted daughter who had in the original will been entirely ignored as a legatee, and when provision was made for her in the codicil it was for a specific sum, upon certain terms therein indicated, but the residuary legatees were the only immediate blood relatives of the testatrix. They constituted a natural and complete class, namely, brothers and sister of the testatrix, and were so referred to in the will.

We recognize the general rule contended for by appellee that, where property is given to several persons by name, to be equally divided between them, they take as tenants in common, and not as joint tenants, or as a class. But the authorities hold, we think, that this rule yields to a different construction when it plainly appears from the will that it was the intention of the testator that the survivors should take the whole. We think that this is such a case, and that for the reasons stated the trial court erred in its conclusion in reversing the action of the probate court.

In our opinion, it is not necessary to go outside of the will and the conceded facts to reach this conclusion, and that it is unnecessary to consider the admissibility of the testimony of Charles E. Ward, as without such testimony the same result should be reached. In other words, we are of opinion that the intent of Mrs. Ives plainly expressed in her will and codicil thereto, and clearly indicated by the general tenor and scope thereof, was to give $10,000 only to her adopted daughter, and to give the residue to those of her brothers and sister who might survive her.

The judgment of the circuit court is therefore reversed, and a new trial is granted, with costs to appellants against appellee.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Moore, C. J. Moore, J.

text:
      In re McLAUGHLIN’S ESTATE. HINCKLEY v. McLAUGHLIN.
    Bills and Notes — Estates of Decedents — tEvidenoe.
    Upon the trial of an action in the nature of a claim against the estate of a decedent based on a non-negotiable instrument in writing whereby decedent agreed to pay claimant |10,000 on or before ten years from its date, reciting as consideration that it was given for a half interest of claimant in a patent coaster brake, and in a corporation organized to manufacture it, evidence of a sufficient consideration was not necessary to establish a case: claimant could recover without proof of an assignment or conveyance of the half interest in the patent, the instrument importing consideration: it was for defendant to show want of consideration.
    Mooke, Beooke, and Stone, JJ., concurring on the ground that the evidence tended to prove a sufficient consideration.
    Error to Jackson; Parkinson, J.
    Submitted June 19, 1912.
    (Docket No. 58.)
    Decided December 17, 1912.
    Rehearing granted June 2, 1913.
    Former opinion affirmed March 27, 1914.
    Second rehearing granted. Previous opinions overruled and new trial granted March 17, 1915.
    Frederick P. Hinckley presented a claim against the estate of Miar McLaughlin, deceased, which was contested by Emma McLaughlin, administratrix, and disallowed by the commissioners on claims. On appeal by claimant to the circuit court, a verdict was directed for defendant. Claimant brings error.
    Reversed.

      Price & Whiting, for appellant.

      Wilson & Cobb, for appellee.
   Moore, C. J.

The claimant presented the following as a claim against the estate of Dr. McLaughlin:

“Estate of Dr. Miar McLaughlin, Deceased.
“To Fred P. Hinckley, Dr.
“1908.
“Aug. 10.
“Below is a copy of the note and agreement given me by Dr. Miar McLaughlin on which there is now due me the sum of $11,647.40.
“[Copy.]
“Jackson, Mich., April 12, 1902.
“I Dr. M. McLaughlin. Agree to pay F. P. Hinckley. On or befour the twelve day of April 1912 the sum of $10,000. Ten Thousand Dollers At three per cent, interest. The intest to be paid on or befour April 12 of each year. For his undived half interest in the Automic Coaster Brake. Co. Located at 102 East Washington St. Jackson Mich And all Pattents pertaining to Coaster Brakes up to this Day that has been applied for an will be applied for in United States And all Foreign Counters.
“Dr. Miar McLaughlin."

The case found its way to the circuit court where it was tried in May, 1911. The circuit judge directed a verdict in favor of the defendant. The case is brought here by writ of error.

Counsel for plaintiff call the paper presented a promissory note. Counsel for the estate say it should be called an executory contract. They are both agreed that' much importance attaches as to how it is to be regarded in that respect. Witnesses were called who gave testimony to the effect that the signature to the paper was in the handwriting of Dr. McLaughlin. The paper was then offered in evidence. Objection was made for the reason that it was not a promissory note and that a consideration must be proven and upon other grounds. The court held a consideration must be shown, and excluded the evidence. Mr. Hinckley, the claimant, was then called to the stand, and was permitted to testify that he wrote the body of the note upon a typewriter and that he was not accustomed to using a typewriter at the time. Some questions were asked him as to what was meant by the words “undived” and “automic,” but he was not permitted to answer. The claimant then proceeded to .put in other testimony.

We now quote from the brief of counsel for appellant, for it may be safely assumed,. and the record bears out this assumption, that as favorable a case upon the facts will be there found as the record discloses :

“Claimant then called to the witness stand Mr. Ethan C. Adams, of Battle Creek, who was acquainted with the deceased, and had met him in the year 1902. He testified:
“ ‘The first time was February 28, 1902. * * * I met him at the factory of his Automatic Coaster Brake Company here in Jackson. * * * I had a talk with the doctor that day in which the Automatic Coaster Brake Company was mentioned. The doctor asked me how I liked the brake their company was putting out — that they were making — and I told him I liked it very much. * * * I was trying to get some brakes, and I was there for that purpose. * * * Mr. Hinckley introduced me to him as his partner.’
“Witness further testified that a Mr. Keaton and Mr. Hinckley were present on this occasion, and that he (the witness) had had experience with this coaster brake. Witness also met the doctor again in Jackson on the 18th day of April, 1902, at the doctor’s residence, Mr. Keaton being also present, and had substantially the same talk with him, in which the doctor asked him about the brake, and if he thought it would sell, etc. Again in October of that same year (1902) witness saw the doctor again at his residence in company with a Mr. Losey, in which conversation the doctor asked Mr. Losey and the witness ‘to go on with the business where Keaton left oíf; go on with the manufacture of these coaster brakes and the sale of them.’ Later in the fall witness had another talk with the doctor in which the witness stated that he did not want anything more to do with the coaster brake business, and the doctor replied that he was sorry. Witness also testified referring to the conversation which the doctor had with him and Mr. Losey. He testified:
“ ‘He stated to Mr. Losey that he owned the coaster brake business. There was something said about Mr. Hinckley in connection with it, by Mr. Losey; it was at the time he wanted Mr. Losey and I to go into the business. Pie wanted us to go on and see if we could organize a company. He stated he owned the business. I don’t remember exactly what was said that led him to make that statement. I think Mr. Losey asked him if he would give an option on the coaster brake business, the same as he did to Mr. Keaton. There was an inquiry made about Mr. Hinckley in some way that led up to his stating that Hinckley had no interest in it. The doctor stated that Hinckley had no interest in it.’
“The doctor also made the statement to this witness and to Mr. Keaton in February, 1902, that he considered the Automatic Coaster Brake business worth ‘about $20,000 or $25,000.’ Witness further testified that the second time he saw the doctor in company with Mr. Keaton the doctor and Keaton were talking about establishing the American Coaster Brake Company, and proposing to sell stock and manufacture brakes; that the persons to be interested in this company, if organized, were Mr. Badgley, Mr. Keaton, Dr. McLaughlin, and another person, whose name witness could not recall. Claimant also called Delbert Thayer, who testified that he knew Dr. McLaughlin and also Mr. Hinckley; that he had been working on some patents himself, and that some time late in the summer of 1902, or else in 1908, as near as witness could remember, he approached the doctor for the purpose of getting financial aid to develop his patents; that his conversation with the doctor took place near the back door of their factory; and that the doctor said to him that he could not help him for the reason that he bought Mr. Hinckley’s interest in the brake, and had ‘to give his paper.’ The deposition of R. W. Losey was also taken in behalf of claimant at Indianapolis, Ind. Losey had previously done some work for this Coaster Brake Company. He testified that early in 1902 or 1903 he had a talk with the doctor at his office in Jackson; that Mr. Adams was with him; that they were trying to find out from the doctor what the exact situation was in regard to the American Coaster Brake Company, and the possibility of getting an option on their output of brakes. The witness continued:
‘‘ ‘The doctor said he had bought out Mr. Hinckley’s interest in the company, and thought he could make arrangements to take the output if satisfactory arrangements could be made to go ahead and manufacture the brakes. I don’t remember the exact date of this conversation. I do remember it was cold and there was snow on the ground. I know it was early in the fall or spring of the year after the American Coaster Brake Company had started to sell brakes and stock. They gave me stock for my services in selling stock and brakes.’ ”

The paper was then offered in evidence and refused. No other testimony was offered, and, as before stated, a verdict was directed for the estate.

It is insisted by counsel (we quote from the brief) :

“It was not necessary to prove the actual consideration in the first instance, because a presumption of fact arises from the usual course of dealing in commercial paper that it was based upon a good consideration; and, in case of indorsed commercial paper, when the indorsee or holder brings suit upon it by proving the signatures of the maker 'and indorser, a presumption arises that the note is supported by a good consideration, and that it was indorsed at the date of the note, or, at least before maturity, and before delivery to the holder, which presumption is sufficient prima facie evidence to authorize a recovery in case the fact of consideration and of indorsement before maturity is not controverted.” Manistee Nat. Bank v. Seymour, 64 Mich. 59-72 (31 N. W. 140, 145).

Counsel cites other authorities, among them Conrad Seipp Brewing Co. v. McKittrick, 86 Mich. 191 (48 N. W. 1086), which counsel contends is strongly in favor of claimant.

Counsel say that if wrong in the first position that after their proof was in, there was a question to go to the jury upon the question of there being a consideration for the note, citing especially the case of Taylor v. Taylor’s Estate, 138 Mich. 658 (101 N. W. 832). Counsel for claimant subdivide their propositions and argue them quite in detail, but we think the two heads suggested cover the questions involved. A reference to the cases cited by counsel will show them to be very different from the instant case. Manistee Nat. Bank v. Seymour, supra, was a case where counsel and the court all speak of the paper sued upon as a promissory note. In the beginning of the opinion Justice Champlin said:

"This suit is brought to enforce the collection of a promissory note dated April 12, 1884, payable in three months to the order of plaintiff, and signed by the defendant. The plea was the general issue, and notice that the note was void, it having been obtained without consideration, and under an express promise from the plaintiff that it should not be enforced; that the money mentioned in said note was advanced by the plaintiff to one H. C. Tallman, and security taken therefor in the name of the defendant at the especial instance of, and for the sole benefit of, plaintiff, and with the express understanding between the plaintiff and defendant that he should not be held liable on said note — the security being taken in the' name of the defendant, and the said note given by him to the plaintiff, as a simple accommodation to the plaintiff.”

The following excerpts from the opinion in Conrad Seipp Brewing Co. v. McKittrick, supra, will show it was unlike the case before us:

“The case was tried before the court without a jury, and written findings of fact and law filed, in which it was found that the plaintiff was a corporation, and that the defendant on the 20th day of April, 1888, made and executed for a valuable consideration the written instrument, a copy of which is given above; that by the delivery thereof to the plaintiff, which occurred on the 20th day of; April aforesaid, defendant became liable to pay plaintiff $720, with interest at 6 per cent, after maturity; that plaintiff demanded payment after the money became payable, and the defendant refused to pay; and that there was at the time of such finding due and unpaid to plaintiff on such written instrument $801.60. * * *
“In this case the action is brought by the party to the instrument to whom the promise is made. A copy of the instrument being set out and served with the declaration, with a notice that it constituted the plaintiff’s sole cause of action, it was not necessary to offer proof of its execution by defendant, as the signature was not denied under oath. Circuit' Court Rule 79. The suit was brought to recover a money demand. The promise is to pay money, and its nonpayment constitutes the sole breach. In such cases a recovery may be had under the common counts, and the contract is admissible in evidence under such counts. Port Huron, etc., R. Co. v. Potter, 55 Mich. 627 (22 N. W. 70); Miner v. O’Harrow, 60 Mich. 91 (26 N. W. 843); Phippen v. Morehouse, 50 Mich. 537 (15 N. W. 895); Rickey v. Morrison, 69 Mich. 139 (37 N. W. 56); Thomas v. Caulkett, 57 Mich. 392 (24 N. W. 154, 58 Am. Rep. 369).
“No question is made that the consideration was not proved. The admission of value received in the contract was prima facie sufficient to show that the promise contained in the contract had an adequate consideration to support it.”

In Taylor v. Taylor’s Estate, supra, the record shows that the papers presented were three promissory notes, and there was also evidence of their execution. We now quote from the language of Justice Carpenter, at page 662 of 138 Mich. (101 N. W. 833):

“(b) We are bound, also, to say that there was evidence of consideration. It is true that the notes did not contain the recital Tor value received;’ but there is evidence that they were negotiable in form, and there is a presumption that such notes, though lacking the recital just mentioned, are based upon a consideration. See Carnwright v. Gray, 127 N. Y. 92 [27 N. E. 835, 12 L. R. A. 845, 24 Am. St. Rep. 424]; Dean v. Carruth, 108 Mass. 242.”

Bearing in mind that this case was tried in 1911 and that the paper is presented by the man who says he typewrote it in the absence of the man who.it is claimed afterwards signed it, if we call the words “intest” interest, .the word “undived” undivided, the word “automic” automatic, and the word “counters” countries, and correct the spelling and the punctuation, we have a paper which says, in substance, that Dr. McLaughlin agrees to pay Mr. Hinckley on or before April 12, 1912, $10,000, with interest at 3 per cent., the interest to be paid on or before April 12th each year.

We now come to the consideration for the agreement:

“For his undivided half interest in the Automatic Coaster Brake Company located at 102 East Washington street, Jackson, Mich., and all patents pertaining to coaster brakes granted up to this date that have been applied for, and which will be applied for in the United States and in all foreign countries.”

Richard Price, George S. Law, and Thomas A. Lawler (Rollin H. Person, of counsel), for appellant.

Wilson & Cobb, for appellee.

It will be observed that the principal snm is not due until 10 years after the date of the instrument. The paper does not purport to be given for value received. We have recited the only consideration stated. The paper indicates clearly that it was given for an undivided half interest in a business then located at a place stated, and for patents then issued, and for such as might afterwards be applied for.

What did Mr. Hinckley agree to do after this .paper was made? Did he agree to sell an undivided half of the business? If so, where is the bill of sale, agreement, conveyance, or other paper in writing signed by him indicating such agreement? None was produced or offered in evidence. What patents did Mr. Hinckley sell to Dr. McLaughlin that entered into the consideration? None were produced, nor any assignments thereof to Dr. McLaughlin. If property, either a business, or patents, or both, worth $10,000, was the consideration for the giving of this paper, and the title to said property passed to Dr. McLaughlin, it is unbelievable that there would not have been produced some writing, bill of sale, conveyance, deed, patent, or patents and assignments thereof signed by Mr. Hinckley evidencing such an important transaction. We think a verdict was properly directed.

Judgment is affirmed.

Steere, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.

ON REHEARING.

Moore, J.

An opinion was handed down in this case some time ago. It may be found ante, 707 (139 N. W. 50). Later upon the request of the appellant the case was reargued. The argument and a further consideration of the record has not changed our opinion as to what should be done with the case. It is affirmed.

Brooke, Stone, and Steere, JJ., concurred with Moore, J.

Ostrander, J. (dissenting). I think the writing imports consideration, and that it was for the defendant to show want of consideration. The judgment should be reversed.

McAlvay, C. J., and Bird, J., concurred with Ostrander, J.

ON SECOND REHEARING.

Rollin H. Person, Thomas A. Lawler, and Richard Price, for the motion.

Wilson & Cobb, contra.

MOORE, J. An opinion was handed down in this case some time ago. It may be found ante, 707 (139 N. W. 50). Later, upon the request of the appellant, the case was reargued with the same result as before, except that it was reached by a divided court. Ante, 715 (146 N. W. 202). Later a rehearing was ordered upon briefs to be submitted.

The rehearing and a further consideration of the record has not changed our opinion of the character of the paper called a note, but we are inclined to the opinion that there was sufficient evidence of a consideration to carry the case to a jury. For that reason we are constrained to say the case should be reversed, and a new trial ordered.

Brooke and Stone, JJ., concurred with Moore, J.

Steere, J. I think the writing imports consideration, and that it was for the defendant to show want of consideration.

The judgment should be reversed.

McAlvay, C. J., and Ostrander and Bird, JJ., concurred with Steere, J. Kuhn, J., did not sit.

L