text:
    VOSS v. CONNECTICUT MUTUAL LIFE INSURANCE CO.
    1. Life Insurance — Surrender for Reduction — Construction of Contract.
    An. insurance policy, issued without change, except as to amount, from one which was surrendered merely-for reduction, is to he construed, with reference to the interest of a beneficiary who died before the surrender, as of the date of the original contract.
    2. Same — Beneficiaries—Vested Interests.
    A child to whom a policy of insurance on his father’s life is payable if the mother be not living at the father’s death has a vested, though defeasible, interest, which, in the event of his dying before the mother, will descend to his heirs.
    3. Same — Splitting Actions — Parties.
    One of two beneficiaries in an insurance poljcy cannot maintain an action against the company to recover his proportion of the insurance without accounting for his failure to join the other beneficiary.
    Error to Wayne; Hosmer, J.
    Submitted October 4, 1898.
    Decided January 3, 1899.

      Assumpsit by Anna Toss and others against the Connecticut Mutual Life Insurance Company on a policy of insurance. From a judgment for defendant on demurrer to the'declaration, plaintiffs bring error.
    Affirmed.

      John G. Hawley, for appellants.

      Moore & Goff, for appellee.
   Long, J.

This is an action on a life-insurance policy issued by the defendant company to George Engelking, and payable to Katharina Engelking as beneficiary. The declaration recites:

“For that whereas, the'said Anna Toss is the widow of George Voss, deceased, and the said other plaintiffs are children and heirs of the said George Voss; and whereas, the said George Voss was in his lifetime one of the two children of Katharina Engelking, deceased; and whereas, the said Katharina Engelking was in her lifetime the wife of George Engelking; and whereas, heretofore, to wit, on the 22d day of December, A. D. 1866, at the city of Pittsburgh, in the State of Pennsylvania, the said defendant, for good and sufficient consideration to it in hand paid by the said George Engelking, did make, execute, and deliver to the said George Engelking its certain policy of insurance, wherein and whereby the said defendant expressly promised and agreed to and with the said George Engelking that, upon the death of the said George Engelking, the said defendant would pay to the said Katharina Engelking, or, in the event of her prior decease, to her children, the sum of $5,000; and thereupon, afterwards, to wit, on the 27th day of December, 1878, the said sum so payable was, by the mutual consent of the parties, reduced to $3,000, the said policy in all other respects remaining in full force; and thereupon, afterwards, to wit, on the 23d day of December, 1882, the said sum so payable was, by mutual consent of the parties, further reduced to the sum of $2,500, the said policy in all other respects remaining in full force; and thereupon, afterwards, to wit, on the 31st day of December, 1883, the said sum so payable was, by the mutual consent of the parties, further reduced to the sum of $2,000, the said policy in all other respects remaining in full force; and thereupon, afterwards, to wit, on the 22d day of December, 1885, the said sum so payable was, by the mutual consent of the parties, further reduced to the sum of $1,500, the said policy in all other respects remaining in full force; and whereas, then and there, to wit, at Pittsburgh, on December 22, 1866, the said George Voss and Joseph Engelking were the children, and the only children, of said Katharina Engelking; and whereas, afterwards, to wit, on the 1st day of April, A. D. 1887, at the said city of Pittsburgh, the said Katharina Engelking died, the said George Engelking still living; and whereas, afterwards, to wit, on the 1st day of May, A. D. 1888, the said George Engelking died at the said city of Pittsburgh, the said policy of, insurance then being in full force, leaving surviving the said plaintiffs and said Joseph Engelking, the said George Voss and the said Joseph Engelking being the persons named in said policy of insurance as the children of said Katharina Engelking; and whereas, the said George Voss died, to wit, at the city of Detroit, on the 8th day of June, A. D. 1880, leaving him surviving the plaintiffs in this suit, his widow and children, as hereinbefore recited; and thereupon, afterwards, to wit, on the 4th day of January, A. D. 1897, the said defendant, in consideration of the premises, undertook and faithfully promised the said plaintiffs to pay them, the said plaintiffs, the sum of $750, one-half of the sum secured by the said policy of insurance, whenever thereafter requested so to do; yet the said defendant has not, although often requested so to do, paid to the said plaintiffs the said sum of money, or any part thereof; to the damage of the said plaintiffs,” etc.

A demurrer was interposed to this declaration, and the demurrer sustained in the court below. Plaintiffs bring error.

Inasmuch as the policy sued upon is contained in the record, and is treated by counsel in their briefs as a part of the declaration, we quote from its provisions. It is recited therein that the insurance company does—

“ Hereby insure the life of George Engelking, * * * for the term of his natural life, in the sum of $1,500, for the sole use and benefit of Katharina Engelking, wife of said insured; the said sum insured to be paid at the office of this company, in Hartford, Connecticut, to the said assured, or her legal representatives, within 90 days after due notice and satisfactory evidence of the death of the said insured during the continuance of this policy; or, if the said assured be not then living, the said sum insured shall be payable as above to her children, or to their guardian, if under age, ” etc.

It appears from the declaration that George Voss, one of the alleged children of Katharina Engelking, the beneficiary, died in 1880, and that his mother, Katharina Engelking, died April 1, 1887, nearly seven years after-wards. Defendant’s contention is that, as this contract of insurance (when it was reduced to $1,500, and a new policy issued, dated December 22, 1885) was made after the death of George Voss, therefore no money could be payable to these plaintiffs, the widow and children of George Yoss, unless the word “children” should be construed to mean grandchildren. There might be some reason for this contention if the contract of insurance had been made originally in 1885; but, on the contrary, the contract was made December 22, 1866. George Yoss was then living. The contract was, from time to time thereafter, surrendered for reduction only. The form of the contract was the same as in the original, and undoubtedly each new contract of reduction was based upon the same application, the only changes made being to reduce the amount. The contract, then, must be construed as it stood in 1866, except as the amount has been reduced to $1,500.

Katharina Engelking, or her legal representatives, was to receive this sum on the death of George Engelking; but, if she was not living at the death of her husband, the payment was to be made to her children. Katharina Engelking was not living at the time of the death of the insured. Her son George also died before that time, leaving children, who are plaintiffs here. Had Katharina Engelking lived beyond the life of her husband, she would have been entitled to the moneys. She died before the insured, and consequently had George, her son, lived, he, with the other child, if living, would have been entitled by the terms of the policy to receive the moneys thereon. Can it be said that it was within the terms of this policy, or within the contemplation of the parties, that should Katharina die before the insured, leaving no children, but grandchildren, the policy should lapse? We think not.

In the case of Continental Life Ins. Co. v. Palmer y 42 Conn. 60 (19 Am. Rep. 530), it appeared that Betsey A. Palmer insured the life of her husband, Benjamin W. Palmer, in the sum of $3,000, payable to herself, if living; if not, to their children. She died before her husband. Amos F. Palmer, one of the children, also died during the lifetime of his father, leaving issue, Charles P. Palmer. ■ The question reserved for the supreme court was whether Charles P. Palmer took an interest in the policy, or whether the whole sum insured vested in the surviving children. It was said by the court:

“ Amos F. Palmer [the son of the insured], at the time of his decease, had an interest in this policy which was transmissible by descent; and consequently the respondent, Charles P. Palmer, is entitled to that portion of the fund which his father would have taken if living.”

One of the reasons given by the court for that holding was that—

“The moment this policy was executed and delivered, it became property, and the title to it vested * * * in the payees. The payees consist of two parties, the wife and the children. As only one could take and enjoy the property ultimately, it did not vest in all as tenants in common, nor did it vest in either so as to give a right to the present enjoyment of it. It was not, however, a mere expectancy nor a naked possibility, but it was a possibility coupled with a present interest. It was visible, tangible property, and, like any other insurance policy, it was capable of assignment and had an appreciable value. Each party took a conditional, not an absolute, right to the whole policy. It was not a condition precedent, but subsequent. The title vested in point of right immediately, but was liable to be devested upon the happening of a subsequent event. The right to the policy, in a strict sense, was not contingent. The possession and enjoyment of the fund thereby created were postponed to the future, and were contingent. This contingency applied to both parties, — to the wife as well as to the children. Her enjoyment of the fund depended upon her surviving her husband; the children’s, upon her husband surviving her. In respect to each, it was a then present right to the future enjoyment of property,'but it was liable to be defeated by a subsequent contingency, and was certain to be defeated as to one of them. That such a right is recognized as property, and is transmissible to heirs, is a proposition abundantly established by the authorities.”

The general rule is that, where the contingency is of such a nature that no interest vests until the happening of the event upon which the estate depends, nothing is transmitted to the heirs. So, too, if the death of a party in whom a contingent interest is vested is an event, by reason of its happening before some other event, upon which the estate is given to others, the heirs take nothing. In the present case, however, the widow was to take the whole on condition she survived her husband; but, if she departed this life before him, the fund was to be paid in full to her children. These children, then, as in the case of Continental Life Ins. Co. v. Palmer, supra, were vested with this fund on condition that the mother died before the insured. This event happened. The right was more than a mere expectancy or naked possibility. It was a possibility coupled with an interest, which was transmissible to the heirs of the children. This rule was adopted in Connecticut Mut. Life Ins. Co. v. Fish, 59 N. H. 126; Winslow v. Goodwin, 7 Metc. (Mass.) 363. See, also, Lockwood v. Insurance Co., 108 Mich. 334.

The rule is stated by Chancellor Kent (4 Kent, Comm. 261), that—

“All contingent and executory interests are assignable in equity, and will be enforced if made for a valuable consideration ; and it is settled that all contingent estates of inheritance, as well as springing and executory uses and possibilities coupled with an interest, where the person to take is certain, are transmissible by descent, and are devisable and assignable.”

1 Redf. Wills, p. 390, also lays down the rule that—

“It seems to be settled beyond all question that all vested estates, even though liable to be defeated by conditions subsequent, are transmissible, and by consequence devisable.”

The policy expressly provides that it shall not be assigned, and there is nothing contained in it giving the insured the right to name new beneficiaries.

It is therefore certain that George Voss, at the inception of the contract contained in the policy, had a vested interest therein, though contingent, and at his death that interest, descended to his widow and children, and they may maintain an action therefor.

The declaration sets forth substantially that Kátharina Engelking, at her decease, left two children her surviving. It nowhere appears but that the other child is still living. If so, that child, or the representative of that child, is equally interested in this litigation, and should share the proceeds of this policy with the widow and children of George Voss. That child is not made a party to this suit. The plaintiffs cannot be permitted to thus split up the demand. It is a single cause of action, and the plaintiffs cannot present a part of it in this action, and leave the rest to be litigated in another suit. The rule was settled in Continental Ins. Co. v. H. M. Loud & Sons Lumber Co., 93 Mich. 139 (32 Am. St. Rep. 494), and the cases there cited. The demurrer must be sustained on this ground, but without prejudice to the bringing of an action in which all the necessary parties are joined.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    CARPENTER v. CARPENTER.
    1. Ejectment — Ouster—Pleading.
    In ejectment, an ouster may be admitted by the pleadings.
    2. Same — Exclusion of Cotenant — Sufficiency of Evidence.
    2 How. Stat. § 7812, requiring one who seeks to maintain ejectment against his cotenant to show an actual ouster, or some other act in total denial of his right, is sufficiently complied with where, aside from defendant’s testimony of occupancy for 12 years under claim of ownership of the entire title, his plea sets up a former suit in ejectment between other parties as a bar to plaintiff’s title.
    Error to Ingham; Wisner, J., presiding.
    Submitted October 5, 1898.
    Decided January 3, 1899.

      Ejectment by Cora M. Carpenter against Augustus D. Carpenter and another for the undivided one-fifth of certain premises. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.
    With their plea of the general issue, defendants gave notice of a former suit in ejectment between certain parties, alleging it to be a bar to any right or title of the plaintiff to the premises described in the declaration. Upon the trial, plaintiff called defendant Augustus D. Carpenter as a witness, and proved by him that he had lived upon the place for 10 or 12 years, and that he claimed to be the entire owner of the property, but that he had not exchanged a word with plaintiff in regard to it prior to commencement of suit. The court directed a verdict for the defendants, upon the ground that plaintiff had failed to prove an ouster.

      Smith & Hood, for appellant.

      Frank L. Carpenter, for appellees.
   Grant, C. J.

(after stating the facts). We think the learned circuit judge was in error. An ouster may be admitted by the pleadings. Newell, Ej. p. 133, § 16. The plea and notice constituted a deliberate assertion of title and possession hostile to plaintiff’s title. This, coupled with the testimony that defendant had been in possession for 12 years, claiming to own the entire title, was sufficient evidence of ouster. Fenton v. Miller, 94 Mich. 204. In addition to the authorities there cited at page 211, see, also, Newell, Ej. 134; Fenton v. Mackinac Circuit Judge, 76 Mich. 405, 409; Clason v. Rankin, 1 Duer, 337; adding s v. Canfield, 4 Conn. 482; Peterson v. Laik, 24 Mo. 541 (69 Am. Dec. 441); Whiteley v. Whiteley, 110 Mich. 556.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    MARTIN v. CURTIS.
    1. Novation — What Constitutes.
    By an agreement to which plaintiff, defendant, and one H. were parties, plaintiff promised to pay defendant a debt owing to him by H., in consideration of H.’s release of a claim against plaintiff. Held, to constitute a novation.
    3. Same — Statute on Frauds.
    A promise to pay the debt of another, in consideration of the debtor’s releasing a claim against the promisor, is not within the statute of frauds.
    3. Trial — Instructions—Record on Appeal.
    Error was assigned upon an instruction that, if the jury should believe the evidence “tending to show that plaintiff did not keep correct books of account,” they would be at liberty to disregard his claim as based thereon; appellant urging that the court had no right to state what the evidence tended to show. The record on appeal contained none of the testimony. Held, that the instruction, being conditioned on the belief of the jury in the truth of the evidence, should not, under the circumstances, he held erroneous.
    Error to Grand Traverse; Corbett, J.
    Submitted October 5, 1898.
    Decided January 3, 1899.

      Assumpsit by Clarence I. Martin against Ashley B. Curtis for goods sold and delivered. From a judgment for defendant, .plaintiff brings error.
    Affirmed.

      Charles G. Turner, for appellant.

      Patchin & Crotser, for appellee.
   Hooker, J.

The appellant brought assumpsit, and the brief of his counsel states that the case depended upon an item of offset, amounting to $116, which was credited to the defendant by the jury. . It arose as follows: The plaintiff was the assignee of the account against the defendant, from plaintiff’s father. The charge, which is the only means we have of determining the facts, as no evidence is printed in the record, shows that Martin, Sr., owned a sawmill, which one Hudson operated on his own account, and that Hudson’s men boarded at the defendant’s hotel, upon his credit, whereby Hudson became indebted to the defendant for their board. There was evidence tending to show that Martin, Sr., owed Hudson, and that, by an agreement to which Martin, Sr., Hudson, and the defendant were parties, Martin, Sr., promised to pay the board bill, in consideration of Hudson’s release of his claim against Martin, Sr. Counsel for the plaintiff claims that this promise was void, under the statute of frauds. The learned circuit judge properly left' the question of fact to the jury, and correctly stated that the foregoing facts, if true, constituted a novation, and the statute of frauds had no .application. Mulcrone v. Lumber Co., 55 Mich. 622, is conclusive of the question.

Another assignment of error is based upon the following instruction:

“Evidence has been introduced tending to show that plaintiff does not keep correct books of account. If you believe this to be true, you are at liberty to disregard his claim as based upon his books of account, if you see fit.”

It is urged that it was error for the court to state to the jury what certain evidence tended to show. The court’s statement was conditioned upon the belief of the jury in the truth of such evidence, and as he did not assume to decide that question, and we have no means of knowing what the testimony was, we cannot say that he erred

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    UNION CENTRAL LIFE INSURANCE CO. v. SMITH.
    1. Insurance Companies — Agent’s Bond — Annulment by State Agent — Release op Surety — Instructions.
    An instruction, in an action by an insurance company upon a bond given by its agent, that Jhe surety was liable thereon unless the company annulled or surrendered the instrument, is not misleading as indicating the necessity of some formal affirmative act on the part of the company, where in other portions of the charge the jury were told that the State agent might act for the company, and that, if he made a new arrangement with the agent, the surety would not be liable for sums advanced thereunder.
    2. Same — Evidence—Books of Account — 'Verification.
    In an action by an insurance company upon a bond given by an agent, the books of the company are admissible in evidence to show the balance due, where their correctness is testified to by the person who has supervision of them.
    Error to Saginaw; Snow^ J.
    Submitted October 5, 1898.
    Decided January 3, 1899.

      Assumpsit by the Union Central Life Insurance Company against Norton Smith and James S. Kerns on an agent’s bond. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Harris & Kendrick, for appellants.

      John F. O’Keefe ( George W. Weadock, of counsel), for appellee.
   Long, J.

This case was in this court at the April term, 1895, and reversed. 105 Mich. 353. On the former trial the defendants bad verdict and judgment. The facts are fully set out in the opinion, and need be recited again only so far as questions now raised may require. In the former trial the court directed the jury that:

“If you should find that the State agent, under the testimony in this case, was vested with the general powers vested in State agents in the supervision of the business' and agents in the State, and received remittances from the agent, or made advances to the agent, or that no one else had correspondence with the agent but him, then a notice to him is a notice to the company. I think the company is charged to receive notice through the State agent. My judgment is, there was no need, in order to cease doing business under this contract, to bring the notice home to the central office.”

Plaintiff took exception to this charge, but the instruction was approved by this court. That was the principal question in the case on the former hearing. The point upon which the case was reversed related to another portion of the charge, as follows:

“The company only had the power to charge the sureties for advances to the extent of the payment of hotel bills, traveling expenses, and other expenses incident to the transaction of the company’s business, and, if you find that the advances were made in excess of that extent, they cease to bind these sureties. You will ascertain, when you come to examine the account here, as shown by these vouchers, that advances were made from the 18th of June down to the 20th of November, and these advances amount to $447.45.”

This court found, under the circumstances of the case as shown upon that trial, that “the limitation as to the amount of the advances ought not to have been made,” and hence the reversal. On the last trial the plaintiff had verdict and judgment. ' The court charged the jury, as on the former trial, that notice to the agent was notice to the company.

The first point made by counsel for defendants in their brief is that the charge of the court compelled the jury to find against the sureties unless they found as a fact that the company, through Kelso, accepted the notice, and by some process discharged the bondsmen, and agreed that the bond should be done away with, making it necessary for the jury to find the fact that the company canceled the bond by affirmative action. Attention is "called to the following part of the charge to support this claim:

“I would say to you that, no matter whether Mr. Kerns asked to be taken off the bond or not, unless the company accepted it through Kelso, — that is, discharged the bondsmen, and agreed that the bond should be done away with, and afterwards Smith should go on and receive this money (if you find he received any money), — then of course the bondsmen should not be released. A man could not be released from the bond by simply saying he wanted to be released; the other party must consent to it. Unless the company consented to Kerns being released from the bond, he would not be released, and the bondsmen would be liable, providing Smith went on under the contract and bond as made. For illustration: If I should become surety on another man’s bond for his faithful performance of certain conditions within the bond, and afterwards I should have some reason,- — no matter what the reason,— and should go to the party who had the bond, and say I wanted to be released from the bond, didn’t want to be held on it, and the other party did not accept the proposition, did not release me, and the party for whom I had become surety went on with the business just the same, I would not be released, because it takes both parties to make a new arrangement.”

If this part of the charge stood alone, there would be some force in the claim made, but the other portions of the charge must be taken in connection with it. It appears that, after this part of the charge had been given, a juror asked:

“Would it be necessary for Mr. Kelso to forward the application to be released from the bond to the head office in Ohio ?
“The Court: No,
Q. He would do that himself?
“The Court: No; Mr. Kelso could contract the business, so far as that is concerned, for the company, he being the State agent.”

The court had before that, at the request of defendants’ counsel, charged the jury as follows:

“First. Under the testimony in this case, the company was charged to receive notice through the State agent, Kelso, in order to cease doing business under this contract. It was not necessary to bring the notice home to the central office.
Second. The agent, Kelso, through whom these advances were made, had authority to receive notice that they were not being received under the original contract, and the State agent, as representing the company in making the advances, and presumptively vested with authority also to withhold them, was bound also to act in this matter from the notice he received from defendant Smith. If you find that Kelso received notice from General Agent Howell that the bondsmen had refused to be longer held, and was informed by Smith that no more advances would be received by him under the written contract, and thereafter made advances under some new arrangement with Smith, the defendant Kerns could not be held in this ■ action for the same; that is, if he received the money under some other arrangement.
Third. Mr. Kelso, the person charged with making the advances, had notice, as the defendants’ testimony tends to show, not only that the advances would not be received upon the credit of the bond in suit, but that he assented to a new arrangement upon which they were to be advanced upon the personal credit of Smith. To this extent his relations to the transaction were such as to make his transaction binding upon the company. So, if you find that Smith quit work under this contract in June, and Kelso received notice of the same, that the bondsmen would no longer be held, that Kelso came to Saginaw, and entered into a new arrangement with Smith without the knowledge or consent of the defendant Kerns, whereby the advances thereafter were made, not upon the original contract, but upon the new arrangement, the defendant Kerns could not be held for such advances.
“Fourth. The defendant Kerns is not liable in this suit for- any advances made or business done between Smith and the company, or between Smith and Kelso, under a new contract, or under a modification or change in the written contract. ”

But counsel contend that the jury, having been out all night, and having failed to agree, were again charged by the court in such manner that they were again led to believe that defendant Kerns would be held liable as a surety unless the company went through the formality of discharging the bond. That portion of the charge is as follows:

“I charge you that, unless the company annulled or surrendered the bond to which I have called attention, it will continue in force, and be binding upon the principal and sureties therein, for the period of one year. If, while said defendant Smith was acting as special agent of the plaintiff,, during that period he became indebted to the company on account of advances to him, and if such indebtedness has not been paid, then said company would be entitled to a verdict against Smith and Kerns for the amount owing by .said Smith to the plaintiff. * * If it was a new arrangement, and it was distinctly understood between Smith and Kelso that the old arrangement should be done away with, and he should act under the new arrangement, that would be proper.”

We think that the jury were not misled by this charge. They must have well understood, from what the court had said in other portions of the charge, that what the court meant by the words, “unless the company annulled or surrendered the bond,” was that, Kelso being the State agent, his act was the act of the company, and, if the jury found that he annulled or surrendered the bond, the defendants would not be liable; and if they found that the arrangement with Kelso was what the defendants claimed, and that Kelso agreed that Smith should go to work under 'the new arrangement, and he did so, Kerns could not be bound to answer for moneys advanced under the new contract. The court in several instances stated to the jury that “it was not-necessary, in order to cease doing business under the contract, to bring the notice home to the central office;” that “notice to Mr. Kelso would be notice to the company.”

It is further contended that, the suit being upon the bond to recover the balance claimed to be due, it was the duty of the plaintiff to show that balance by the best evidence, and that the best evidence was not introduced on that subject. It would be of no profit to set out the testimony in full upon this point. It does appear, however, that 21 vouchers, signed and delivered by defendant Smith from week to week between the 10th day of May and the 20th day of November, were put in evidence by the plaintiff. In addition, plaintiff introduced the policy register kept in defendant Smith’s own handwriting. The company also introduced its own policy register and its journal and ledger, and Mr. Kelso testified to the correctness of the books, and that the entries were made at his dictation. Objection was made to the introduction of the books in evidence, and the objection overruled. The court admitted them, saying: “Well, he [Kelso] says he knows they are correct; he had the supervision of them, and they were the entries made under his instruction and direction.” These books were competent evidence, and properly admitted. 3 How. Stat. § 7526; Montague v. Dougan, 68 Mich. 98; Lester v. Thompson, 91 Mich. 215.

Some other questions are raised in regard to the admission of evidence against defendants’ objection, and also in the rejection of certain evidence; but we think no error was committed, and we will not discuss those questions.

Some questions are also raised upon the refusal of the court to give certain requests tendered by counsel for defendants, and in the modification of some of them, as well as in the giving of the requests tendered by the plaintiff. We have examined those questions, and find no error.

The judgment must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    GRANGER v. MANCHESTER FIRE ASSURANCE CO.
    1. Fire Insurance — Mortgage Interest — Estoppel.
    A mortgagee instructed the local surveying agent of an insurance company to procure insurance upon his mortgage interest. The agent, without his knowledge, forwarded to the company an application signed by the owner, at the same time notifying the company that the application was to secure a mortgagee, and was not signed by the applicant in person. The policy issued ran in the name of the owner, loss, if any, payable to the mortgagee, as his interest might appear.
    The company’s agent delivered the policy to the mortgagee, and received from him the premium. A loss occurring, the company sent its adjuster to treat with the mortgagee, and a settlement was agreed upon. Immediately afterwards the company learned that the owner had, without obtaining its consent, deeded the property to his wife. The company, however, gave the mortgagee no notice that it proposed to forfeit the policy on account of the transfer, or for any other cause, but, on the contrary, required him to furnish further proofs, occasioning him additional expense. Held, in an action by the mortgagee, that the company was estopped to claim a forfeiture because of the conveyance, or for alleged want of privity between plaintiff and itself, even though the letter requesting further proofs contained a general statement that the company did not thereby waive any defenses that it might have to the payment of the loss.
    2. Same —Adjustment—Declaration—Common Counts — Splitting op Actions.
    Where several buildings destroyed by fire were insured under a policy declaring the loss, if any, upon one of the buildings to be payable to a mortgagee, and the latter, having arrived at an adjustment with the company, which it afterwards repudiated, brings suit upon the policy, declaring also upon the common counts, a recovery of the amount agreed upon may be allowed, as against the objection that there can be no splitting of the cause of action upon the policy.
    Error to Ionia; Davis, J.
    Submitted October 6, 1898.
    Decided January 3, 1899.

      Assumpsit by Joseph J. Granger against the Manchester Fire Assurance Company, of Manchester, England, on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      William O. Webster, for appellant.

      Fred H. Stowe (R. A. Hawley, of counsel), for appellee.
   Moore, J.

This case was brought to recover an amount due for insurance. It was heard before the circuit judge without a jury. From the judgment rendered in favor of plaintiff, defendant appeals, alleging by way of defense as follows:

1. There is no privity of action between the plaintiff and the defendant.
2. Plaintiff had only a derivative right in the policy; whatever would defeat the right of Post, the principal, must, of necessity, defeat any right of the plaintiff, under whom he claims.
3. Plaintiff is conclusively presumed to know the terms of the contract upon which he brought his action, and whether, as a matter of fact, he knew them or not, “cannot enlarge the liability which is imposed upon the defendant.’"’
4. The policy became absolutely void after it was issued, by the conveyance of the subject of the insurance by Post, the insured, to his wife, without the consent of the company.
5. There was no waiver of the forfeiture by the defendant or its agents, after knowledge of the facts constituting the forfeiture.
6. There can be no splitting up of causes of action on a single policy, as plaintiff had only a partial interest in the premises insured, viz., in only one of the three buildings insured.

There is some conflict in the testimony, but it is shown by the record substantially as follows: In 1892, Joseph Post and wife gave a mortgage upon real estate at Clarksville, for $600, to the plaintiff, and agreed to keep the buildings on the property insured for the benefit of the mortgagee. The insurance was kept up by Mr. Post until February, 1894. The plaintiff was then notified by the local surveying agent of the defendant that Mr. Post was not able longer to pay the premium, and would not continue the insurance. The plaintiff then instructed the agent to write him a policy for $600 upon his mortgage interest in the property. The agent testified he knew of no other way to effect this insurance except to take the application of Mr. Post, signed by him, and forward it to the company. The agent sent with the application a report containing, among other things, the following:

“Q. Is the application signed by the applicant in person ?
“A. No.
“Q. If this property has not been recently insured, what induces this application ?
“A. Policy expired February 12th; this application to secure mortgagee.”

Upon receipt of the application and report, the company issued a policy in the name of Mr. Post, insuring a two-story building for $500, — loss, if any, thereon, payable to J. Granger, as his interest may appear, — and also insuring a barn in the sum of $75, and a shed in the sum of $25. This policy was delivered to the plaintiff by the agent of defendant, who assured him it was all right, and at the same time the plaintiff paid the premium to the agent. The plaintiff did not know until after the fire that an application had been procured from Mr. Post by the agent, or that the policy was in his name, or that the entire insurance for which he had paid was not payable to him. In May, 1894, Mr. Post gave.his wife a quitclaim deed of the property. This was not known to plaintiff until after the fire.

In October, 1894, the two-story building and the shed were burned. The barn was not burned. The company was notified of the loss, and sent Mr. Witherbee, who had full authority to adjust losses and make settlements in Michigan, to investigate the loss. Mr. Witherbee notified the plaintiff, who lived at Saranac, to meet him at Clarksville, November 12th. Mr. Granger was there, but the adjuster missed the train, and did not arrive at Clarksville until the next day. Mr. Rawson, a contractor . and builder living at Grand Rapids, was present on the 12th by the request of the defendant. On the 13th of November, Mr. Witherbee visited Clarksville, and made such inquiries as he desired, and then returned to Grand Rapids. He had a conversation with Mr. Post about the property and the loss. He then called up the plaintiff by telephone, and had a conversation with him. The testimony as to this conversation is very contradictory. The circuit judge found that, after learning from Mr. Granger the amount of his claim, Mr. Witherbee promised, upon the part of the company, its payment within 60 days; and we think that finding is fully sustained by the testimony. It is claimed that, when this conversation occurred, the adjuster did not know Mr. Post had deeded his property to his wife. The record shows beyond any controversy that Mr. Post informed Mr. Witherbee of the conveyance during the interview at Grand Rapids, and it could not have been more than a 'few minutes after the adjuster had talked with Mr. Granger. No intimation was made to Mr. Granger, after this information was imparted to the adjuster, that the company regarded the conveyance as a forfeiture of the policy. The loss was not paid within the 60 days, and Mr. Granger had Mr. Johnson, the local agent of the defendant at Saranac, write the company. In reply to this letter, the company, through its general attorney, wrote the plaintiff that the proofs of loss were defective, and indicated the defects, and asked that certain questions be answered and further proofs be given. There was a general statement in this letter that the company did not, by asking additional proofs, waive any defenses it had; but there was no suggestion that the company intended to claim a forfeiture because Mr. Post had deeded the property h> his wife before the loss, or that there were no contract relations between the parties, or that Mr. Granger had no claim against the company which he could enforce because part of the property burned was not insured for the benefit of Mr. Granger. Further proofs of loss were furnished, the claim was not paid, and this suit was brought.

Upon the trial it appeared that Mr. Post never claimed any interest in the insurance money, but expressly disclaimed having any interest in it. The judge found, from the facts stated, that the defendant should be deemed to have waived any special matter of defense, and is es-topped from making it at this trial.

Counsel for defendant has presented 80 assignments of error, and has argued them ably and at length. The pivotal questions in the case have been before this court so recently that we do not deem it necessary to enter upon a lengthy discussion of them. The plaintiff undertook to get insurance for his own benefit, and paid for it. The company, until after suit was brought, always treated him as the party interested in the insurance. When it proposed to adjust the loss, he was notified to be present. The settlement was agreed upon with him. Additional proofs were required of him. After it knew the nature of his claim and the conveyance of the property insured by . Mr. Post to his wife, it did not treat the policy as forfeited, or insist there were no contract relations between it and the plaintiff, but saw fit to ask further proofs, which involved an expenditure of time and money on the part of Mr. Granger. If the company intended to insist upon these defenses, it was its duty, after it had learned the facts, to so inform Mr. Granger, instead of remaining silent and asking for further proofs. The case is governed by Hopkins Manfg. Co. v. Insurance Co., 48 Mich. 148; Marthinson v. Insurance Co., 64 Mich. 372; Burnham v. Interstate Casualty Co., 117 Mich. 142, and the cases therein cited.

As to the claim that there can be no splitting up of causes of action, and that there can be no recovery on the policy in this suit for that reason, it is sufficient to say the declaration, in addition to declaring upon the policy, contains all the common counts. As already stated, the adjuster of the company, who was authorized to adjust the loss, agreed with the plaintiff that his loss was $490, and that it should be paid within 60 days. In view of this agreement and the pleadings, we think the plaintiff was entitled to recover in this proceeding, even though he could not recover upon the policy itself.

Judgment is affirmed.

The other Justices concurred.


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    FUNKE v. HURST.
    Insolvent Debtors — Imprisonment—Discharge.
    Act No. 105, Laws 1847 ( 2 How. Stat. chap. 309, §§ 1, 2), providing for the discharge of persons imprisoned on civil executions after they shall have been confined for a certain time, amends 2 How. Stat. chaps. 306, 307, providing that, when .certain facts are found, imprisoned debtors, having nonexempt property, shall be discharged on mating an assignment thereof, so that in no case can the discharge be made until the term of imprisonment prescribed by said act has expired.

      Certiorari by Charles F. Funke to review the action of William A. Hurst, circuit court commissioner of Wayne county, in granting a discharge to one imprisoned on civil process.
    Submitted October 6,1898.
    Order reversed January 3, 1899.

      Bowen, Douglas & Whiting, for plaintiff.

      Sloman & Groesbeck (Emanuel T. Berger, of counsel), for respondent.
   Long, J.

Certiorari is brought to review the action of the respondent in granting a discharge from imprisonment to one David Epstein, who was confined in the Wayne county jail at the instance of the plaintiff, under a capias ad satisfaciendum. It appears that Epstein was arrested upon a capias ad respondendum at the suit'of plaintiff. The affidavit upon which the capias issued stated, substantially, that the plaintiff had discounted a large number of notes for Epstein, upon his representation that he was worth, over and above all his liabilities, the sum of $15,000, and that he had standing in his own name three pieces of property on Catherine street, in Detroit, and that he had a stock of rags, metals, and rubber worth at least $10,000; that, solely upon these representations, plaintiff extended credit to him from time to time until the indebtedness amounted to $18,540; that the statement that the property stood in Epstein’s name was false; and that, after such indebtedness had been created, he gave real-estate and chattel mortgages amounting to $5,000, covering all the property he did actually possess, so that the plaintiff and other creditors were unable to collect their debts from him. Epstein was arrested upon this capias. He made a motion to quash 'the writ. This was denied. A petition was filed in this court for a mandamus to compel the court below to quash it. That application was denied. The cause was then tried in the court below, and plaintiff obtained judgment for $19,600. A motion for new trial was denied, and, after a fieri facias and an alias fieri facias had been issued and returned, a capias ad satisfaciendum was issued; and the sheriff, on November 6,1897, by virtue thereof, took Epstein into his custody, and confined him in the Wayne county jail. On January 12, 1898, Epstein applied to the respondent for his discharge. After a hearing, the respondent made the order.

In the petition here for the writ of certiorari, the plaintiff sets out several grounds upon which it is contended the commissioner had no power to grant the order of discharge. The petition made by Epstein for his discharge sets out his arrest upon the capias, the fixing the bail at $3,000, his giving the bail, his release, the judgment of the court in favor of plaintiff, and the issuing of the capias ad satisfaciendum, upon which he was arrested, and that he was then confined in the Wayne county jail. It also sets out that he was then insolvent, and without means to satisfy or pay said judgment, or any part thereof, but if allowed his liberty, and permitted to follow the business in which he had been engaged, he would be enabled to pay his debts, or a large portion thereof. The petition then prays that he “may be allowed to make an assignment of all his property, both real and personal, for the benefit of all his creditors, in accordance with chapters 306 and 307 of Howell’s Annotated Statutes, and that your petitioner may obtain his discharge from imprisonment.”

The commissioner returns that, upon the presentation of said petition to him, it was accompanied with a schedule containing a statement under oath of Epstein’s creditors, and an inventory of his estate; that a citation was issued and served upon Epstein’s creditors to appear, and on the day fixed; that he then proceeded to a hearing upon the petition, and thereupon directed an assignment by Epstein of all his estate, and on the 27th day of January, 1898, such assignment was made, in accordance with subsection 10, § 8810, and subsection 11, § 8811, 2 How. Stat., and delivered to William H. Corlett. The commissioner also returns the substance of the testimony given by the petitioner before him, and says that:

‘ ‘ It appeared to me from the evidence in the case, and I found from such testimony, that said Epstein did not, in contemplation of his becoming insolvent, or of his petitioning for said discharge, or knowing of his insolvency, make any assignment, sale, or transfer, either absolute or conditional, of either his real or personal estate, or of any interest therein, or confess any judgment or give any security with a view to give a preference for an antecedent debt to any creditor.”

Section 8, chap. 306, provides that if the officer before whom the hearing is had shall be satisfied that such petitioner is unable to pay his debts, that his account and inventory presented with bis petition are true, that he has not been guilty of any fraud or concealment in violation of the provisions of this chapter, but has in all things conformed thereto, such officer shall direct an assignment to be made to such assignee as such officer shall appoint, of all the estate of such debtor, excepting such articles as are exempt from sale on execution. Section 9 provides for the execution and recording of such assignment. It is then provided by section 10:

“Upon producing and proving a certificate of the assignees, and of the register of deeds, as prescribed in the last preceding chapter, of the execution and recording of such assignment, and of the delivery of the property assigned, or so much as shall be capable of delivery, with the books and papers relating to the same, the officer before whom the proceedings were had shall grant a discharge under his hand and seal.”

It appears by the commissioner’s return that these certificates were produced and proved.

It is, however, contended by counsel for the plaintiff in certiorari that the commissioner was in error in discharging Epstein until he had served the term of nine months in prison, as provided by section 2, chap. 309, 2 How. Stat. (§ 8900), for the reason that the affidavit upon which the capias ad respondendum issued charged fraud, and that these charges were sustained on the trial in the circuit court, and judgment rendered against Epstein by reason of the fraud charged, and that he was confined in jail upon a capias ad satisfaciendum.

We are satisfied that the commissioner was in error in ordering the discharge. The Constitution of this State, by article 6, § 33, provides:

“No person shall be imprisoned for debt arising out of or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment,” etc.

Mr. Epstein was charged with fraud, and was convicted thereof in the civil action, and judgment was rendered against him. The case is one in which imprisonment might follow the judgment. Chapters 306 and 307, under which the action was had before the commissioner, point out the procedure in such cases, and provide for the discharge when certain facts are found. Facts were found which would justify a discharge at the proper time. These chapters were passed in 1839, and stand as chapters 143 and 144 in the Revised Statutes of 1846. At that time neither these chapters, nor chapter 146 of the Revised Statutes of 1846, provided any specific time for which the imprisonment should continue before the application could be made for discharge. In 1847, by Act No. 105, Laws 1847, the legislature amended chapter 146, which stands now as chapter 309, 2 How. Stat., by providing:

“Section 1. Every person who shall be imprisoned by virtue of one or more executions in civil causes may make application for his discharge from imprisonment in the cases and in the manner hereinafter specified.
“Sec. 2. Such application may be made at the times following, that is to say: (1) If the amount due on such executions shall not exceed twenty-five dollars, after he shall have been imprisoned thirty days. * * * (5) If the amount due on such executions shall exceed five hundred dollars, after he shall have been imprisoned nine months.”

While this chapter is entitled, ‘ ‘ Relief of Poor Debtors from Imprisonment,” the act is broad enough to include all persons who are imprisoned on civil process. While it is not so specified in the amendatory act, it was apparently the intent of the legislatuie to so amend the various acts in reference to the discharge of persons imprisoned on civil process that all persons so imprisoned should be held in prison for a time varying with the amount involved. If, however, the persons making the application for discharge had property, an assignment of such property must be made, in accordance with the requirements of chapters 306 and 307, before their debts would be discharged; while, as to poor debtors (those having no property to exceed $20, except such, as was exempt from execution), the formality of an assignment was to be dispensed with. This is the apparent meaning of these chapters, for it is provided by section 10, chap. 309, that:

“If the officer to whom any application shall be made under the provisions of this chapter, after the examination of the prisoner, shall not be satisfied that he is entitled to his discharge, such prisoner shall be remanded to prison; but he shall not thereby be prevented from obtaining his discharge upon new notice to the creditor or creditors, and hew proceedings before the same or some other proper officer, in the manner herein provided.”

Chapter 309 makes no reference to any notice to creditors. The notices to creditors are, however, required by chapters 306 and 307.

The amendatory act of 1847 to chapter 146, Rev. Stat. 1846, must be held to have amended chapters 143 and 144 (now chapters 306 and 307, 2 How. Stat.), in relation to the time when the application for discharge can be made, so that, as to debtors having some property, that property must be assigned, as provided in chapter 306, before a discharge can be had, while a poor debtor (one with nothing to assign) can take the proceedings prescribed by chapter 309; but in no case can the discharge be made until the imprisonment has continued in accordance with the provisions of section 2, chap. 309.

The order of discharge made by the commissioner must be reversed, and the prisoner remanded to custody.

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


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    SCRIBNER v. CITY OF GRAND RAPIDS.
    Municipal Corporations — Sidewalks—Taxes.
    Complainant, a lot owner, being notified by the city marshal to rebuild the sidewalk in front of his premises, made a contract for the construction of a tar walk, but, before work was commenced, was informed by the marshal that the city attorney would not permit such a walk to be constructed, an ordinance
    being then pending in the common council to extend the stone-walk district to include complainant’s premises. Complainant thereupon visited the city engineer’s office, and obtained, as was claimed; the permission of the assistant to proceed with the work according to the contract. Accordingly, a foundation was laid, which, however, was as well adapted to a stone as to a tar walk. On the same day, the ordinance was passed by the council, and complainant was notified that a stone walk would be insisted upon. Held, that the city was justified, upon complainant’s refusing to construct a walk to comply with the ordinance, in building the same itself, and assessing the cost against the premises.
    Appeal from superior court of Grand Rapids; Burlingame, J.
    Submitted October 7, 1898.
    Decided January 3, 1899.
    Bill by Charles H. Scribner and another against the city of Grand Rapids and others to set aside a sidewalk assessment. From a decree for complainants, defendants appeal.
    Reversed.

      McGarry & Belden, for complainants.

      Henry J. Felder (H. Joslin, of counsel), for defendants.
   Hooker, J.

The complainants are owners of business property in Grand Rapids, in front of which the city caused a stone sidewalk to be constructed, and the cost was assessed upon the property. After confirmation by the council against the protest of the complainants, this bill was filed to restrain the sale and set aside the assessment. The superior court set aside the assessment, and enjoined proceedings to enforce its payment, but, as a condition precedent to such relief, required the complainants to pay to the city treasurer the sum of $85. The defendants have appealed.

The evidence shows that prior to May 22, 1897, there was a plank walk in front of these and adjoining premises. By reason of the grading of an alley, a step of about two feet was left at the south end of the complainants’ walk. This was regarded as dangerous by the city marshal, who on May 22, 1897, caused a notice to be served upon the complainants, requiring them to “rebuild the walk in accordance with the lines established by the city engineer, under directions of the board of public works, within 20 days after service ” of such notice. The notice contained blank specifications reading as follows:

“ The sidewalk shall be-feet in width, of artificial stone, cut-stone flagging, asphalt, or tar concrete, upon a foundation of stone, gravel, or concrete of-inches in depth, with top dressing of tar concrete of-inches in thickness. Such walk shall be laid with either a crowning center one and one-half (1£) inches higher than edges of walk, or with a pitch of one-quarter (i) inch to the foot from inside of the walk towards the street.”

The complainants thereafter proceeded to lower the wooden walk to the proper grade, and, while taking down the area wall to the grade, were informed that lowering of the walk would not do,— that a new walk was required; whereupon, on June 4th, they let a contract for a new tar walk, after having some talk with the marshal and one of the aldermen, from whom the complainants claim to have received the information that a tar walk would be sufficient. This contract required the complainants to provide a proper foundation for the tar walk, and they proceeded to tear up the plank sidewalk to that end; and on the 5th of June the sidewalk contractor drew one load of gravel upon the premises, for the walk, for which he never claimed compensation. On June 7th the marshal notified the complainants that the city attorney required them to quit work, and would serve an injunction if they did not. They did so, and called at the city engineer’s office. Here they met the assistant city engineer and an alderman, and it is claimed that they .told them to go ahead with the construction of their walk; so they got their men together, and proceeded to prepare the foundation, also the area, for the tar walk. At its regular session held on the evening of that day, the common council passed an ordinance which was then pending, whereby the stone-walk district was extended, and made to include these premises, and at the same meeting a resolution was adopted requiring the complainants to build a stone walk, and directing the city attorney to see that they did so, and on the morning of the 8th a copy of this resolution, with a notice, was served upon the complainants by the marshal. They called upon the city attorney, and, at his suggestion, upon the board of public works, and we judge from the statement in the brief of complainants’ counsel that they were given to understand that a stone walk would be insisted on, and the testimony clearly shows the same. It is claimed that at this time the complainants had completed a foundation for a tar walk for about two-thirds of the required distance, and that it would have done equally well for a stone walk. No more work was done until June 16th, when a new notice was served, requiring the sidewalk to be rebuilt in accordance with a resolution adopted June 14th, which directed the marshal to notify the owners of the property to rebuild the walk in accordance with the ordinance. Complainants then offered to rebuild with tar, but were forbidden, and nothing more was done until the city caused the walk to be built, and assessed the cost upon the premises.

It is highly improbable that these complainants were not conversant with the reasons for asking them to defer the reconstruction of their walk, and did not know of the pendency of the ordinance to extend the stone-walk district. According to the testimony of the complainants, they did no work upon this walk that could not have been utilized for the stone walk, and we see no good reason why they did not proceed and build the stone walk. They seem to have rested upon the assumption that because they had been notified by the marshal to rebuild their walk before their premises were included in the stone-walk district, and had made a contract for the construction of a tar walk, they thereby acquired a vested right to go on and construct a tar walk, regardless of the fact that it would not conform to the ordinance that was passed a few days later. The power is confided to the council to regulate the streets, and determine the grade, dimensions, and character of sidewalks. It was much more consistent with fairness for the council to stop the building of a tar walk, that it knew would not conform to'a pending ordinance, than to allow it to be constructed, and, after a short interval, require it to.be rebuilt of stone; and a corresponding spirit of fairness should have led the complainants to make alterations in their foundations, if any were necessary, and build the stone walk, instead of standing upon their supposed technical right to impose upon the community the burden of building its walk, or accept a tar walk, which should for years be an unsightly blemish upon the street, and perhaps a source of danger to pedestrians and loss to the city. We think that they had acquired no legal right to do this, and the case is devoid of any equities that entitle them to consideration.’

The decree is reversed, and the bill dismissed, with costs cf both courts.

The other Justices concurred.'


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    VIERS v. DETROIT PAPER-PACKAGE CO.
    Judgment Creditors — Lease op Corporate Property — Priority
    op Liens.
    A manufacturing corporation, heavily indebted, transferred to a third person, absolutely, all the goods and accounts on hand, and gave to him a 15-year lease of all machinery and appliances, with full control of the business, in consideration of his collecting in the accounts and applying the proceeds to the indebtedness, and of his investing in the business money sufficient to meet its reasonable demands, and of his admitting the corporation to a proportionate share of the net profits, if any, of the new concern. It was agreed that, if the lessee should pay indebtedness in excess of the value of the goods and accounts absolutely sold to him, such payments should be deducted from the valuation of the property and rights conveyed, as fixed by the parties for the purpose of estimating dividends. Held, that the lessee had no lien upon the leased property for payments made upon the corporate indebtedness in excess of the value of the property and accounts transferred to him absolutely, which would take priority to that of a judgment creditor of the corporation.
    Appeal from Wayne; Donovan, J.
    Submitted October 20, 1898.
    Decided January 3, 1899.
    Creditor’s bill by Lewis M. Viers against the Detroit Paper-Package Company, William B. Thompson, James N. McBride, and Hubert P. Dunbar. From a decree for complainant, defendants McBride and Dunbar appeal.
    Affirmed.
    Defendant the Detroit Paper-Package Company, a corporation, was organized in 1892, with a capital stock of $15,000. In 1894 its stock was increased to $30,000. It had not proved a successful venture; it was in debt, and its creditors were pressing for payment. On .January 15, 1895, it entered into an agreement with defendants Me-Bride and Dunbar, by which it transferred to them its letters patent, and other applications for patents then pending, and all its stock, goods, materials, appurtenances, claims, and accounts, including the right to collect such accounts in their own names or otherwise, and also the good will of the business, “together with the right to possess, control, use, and operate, in the carrying on of such business, all the tools, implements, appurtenances, machinery, and rights covered by said letters patent within the United States, from a factory to be located at Owosso, Michigan, or such other places as they shall determine.” The value of the property and rights conveyed was fixed at $25,345, upon which to estimate and determine dividends of profits between the respective parties. McBride and Dunbar agreed to invest money sufficient to meet the reasonable demands of the business, not, however, to exceed $15,000. They were to receive 10 per cent, on the amount of money invested by them before dividing the profits. The package company agreed to indemnify them from all loss, costs, expense,- or damage which they might suffer by reason of any suits brought against them in consequence of the transfer of the property to them. Losses, if any, were to be borne ratably. McBride and Dunbar agreed to take the business and property as it stood at the date of the cohtract, and to “collect all claims and accounts owing to the package company, and with the proceeds thereof to pay and discharge its indebtedness'to the extent which the amounts collected will pay, not exceeding the value of the stock and goods manufactured and in process of manufacture, which it has hereby absolutely s"old and transferred to them.” It further provided:
    “In case the bills and claims collected, together with the property hereby absolutely sold and conveyed to second parties, shall exceed the amount of indebtedness of first party which may be paid by second parties, then, and in such case, such excess is to be held and considered as the common property of parties hereto, and as by them invested in said business, and divided on the same basis as profits. And in the event that said second parties shall pay any indebtedness of first party in excess of the value of the property, claims, and accounts herein absolutely sold and transferred to the parties of the second part, not including any right of use of property, then, and in such case, such indebtedness so paid shall be deducted from, said sum of $25,345, and the remainder of said last-mentioned sum shall be thenceforth considered as the basis of a division of net profits as aforesaid.”
    The agreement was to remain in force 15 years.
    McBride and Dunbar took possession; erected a building at Owosso; transferred to it the machinery, etc., from Detroit, where the company was theretofore located; and entered upon the business. The accounts and some of the merchandise on hand were turned over to Messrs. Fox and Foley, creditors of the company, to sell and collect, and apply in payment of their debts.
    Complainant was a creditor of the package company at the date of the above agreement. He subsequently brought suit, recovered a judgment of $1,258.29, and filed a creditor’s bill in this case to reach the assets in the hands of McBride and Dunbar. Proofs were taken in open court, and a decree rendered in favor of complainant, directing McBride and Dunbar to deliver over to the receiver certain personal property found to be in their hands, to be sold to satisfy the judgment. From this decree McBride and Dunbar appealed.

      Thomas S. Jerome, for complainant.

      Frank F. Bumps (James M. Goodell, of counsel), for appellants.
   Grant, C. J.

(after stating the facts). Counsel for the defendants concede that the contract was void as to creditors of the package .company, but contend that McBride and Dunbar acted in good faith, without any intent to defraud the creditors; that they in good faith paid debts of the corporation exceeding the value of the personal property and accounts sold and delivered to them; and that, therefore, they have a prior lien upon the personal property which was leased. They insist that the case is within the rule of Walker v. Cady, 106 Mich. 21. The parties differ widely as to the value of the assets and accounts turned over to McBride and. Dunbar, and which they agreed to use in payment of the debts. They were informed that the company owed complainant. Mr. McBride testifies that he supposed it was a small amount, while Mr. Thompson, the manager of the corporation, who negotiated the agreement, testified that he informed them of complainant’s full claim. They were under no obligation to pay debts in excess of the value of the property, claims, and accounts absolutely sold to them. They might do so, and, if they did, the contract provided that such overpayments should be deducted from the $25,345.

We find nothing in the record to indicate that McBride and Dunbar acted in bad faith. The legal effect, however, of this transaction, was to place the leased property beyond the reach of creditors, in a manner which the law does not permit. Felker v. Chubb, 90 Mich. 24. The trial judge evidently found that McBride and Dunbar were informed of complainant’s claim. Upon this point McBride and Thompson are the sole witnesses, and we find nothing in the record to justify us in reaching a different conclusion from that of the trial judge. In view of the dispute as to the value of the property and accounts absolutely sold, and the remedy provided by the contract if McBride and Dunbar paid debts in excess of such value, we think the judge reached the correct conclusion, that defendants have no lien for such overpayment, and that the property leased is subject to complainant’s judgment.

Decree affirmed, with costs.

The other Justices concurred.


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    STEVER v. BROWN.
    1. Replevin — Names .of Parties — Copartnership.
    An affidavit for a writ of replevin by Henry H. S., described as “one of the firm of A. E. and H. H. S.,” alleged that a certain chattel, “of the personal goods and chattels of the said firm of A. E. and H. H. S., is unlawfully detained * * * by Horace B., and that said A. E. and H. H. S. are now lawfully entitled to the possession of the said goods and chattels; * * * that said goods and chattels have not been taken for any tax * * * against the goods and chattels of said A. E. and H. H. S.; and that said A. E. and H. H. S. claim,” etc. The writ commanded the delivery of the pi’operty to “A. E. and H. H. S., copartners, plaintiffs herein.” Held, that the action was not brought in the name of the co-partnership, but in the names of the copartners.
    2. Parties — Designation—Use of Initials — Amendable Defect.
    The use of an initial letter instead of the Christian name of the plaintiff in instituting suit is a defect that may be cured by amendment, by the insertion of the complete name, where there is no question as to the identity of the parties.
    3. Same — Objections—How Raised — Motion to Dismiss.
    A misnomer of plaintiff in a justice’s writ may be taken advantage of as well by motion to dismiss as by plea in abatement.
    4 Same — Plea to Merits — Judgment.
    A judgment for plaintiff in replevin will not be reversed for failure to amend a defect in the writ, consisting of the use of an initial letter instead of the full Christian name of the plaintiff, where defendant pleaded to the merits.
    5. Replevin — Sufficiency of Affidavit.
    2 How. Stat. § 6856, requiring an affidavit for a writ of replevin in justice’s court to show that the property involved was not “taken for any tax, assessment, or fine, * * * nor seized under any execution or attachment against the goods and chattels of the plaintiff,” is sufficiently complied with where the affidavit of one of two persons joined as plaintiffs states that the property was not taken “for any tax * * * against the goods and chattels of said” plaintiffs (naming them).

      Error to Muskegon; Russell, J.
    Submitted October 19, 1898.
    Decided January 3, 1899.
    Replevin by A. E. and H. H. Stever against Horace Brown. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      F. W. Cook and J. E. Sullivan, for appellant.

      Lyon & Hadsall, for appellees.
   Hooker, J.

An action of replevin was brought in justice’s court upon an affidavit made by Henry H. Stever. It alleged that:

“Henry H. Stever, one of the firm of A. E. and H. H. Stever, copartners, being sworn, says that one bicycle, * * * of the personal goods and chattels of the said firm of A. E. and H. H. Stever, is unlawfully detained * * * by Horace Brown, and that said A. E. and H. H. Stever are now lawfully entitled to the possession of the said goods and chattels. And deponent further says that said goods and chattels have not been taken for any tax * * * against the goods and chattels of said A. E. and H. H. Stever, and that said A. E. and H. H. Stever claim $100 damages,” etc.
The writ commanded the delivery of the property to “A. E. and H. H. Stever, copartners, plaintiffs herein.”

The defendant appeared specially for the purpose of a motion to quash upon the grounds:

1. Because the affidavit does not show that the property described was not taken for some tax, fine, or assessment, or upon execution against either of the plaintiffs.
2. Because the action was brought in the name of a firm, and not of its individual members, and because the names of the persons composing the firm are not given, and it not appearing that they were unknown, as the affidavit was made by one of said members, who should be presumed to know them.

This motion was overruled, and a plea of the general issue was then filed, and trial had, resulting in a judgment for the plaintiffs. The case was taken to the circuit court by special appeal; the errors alleged being those stated, and the further point that the affidavit was “not sufficient in law to authorize the issuance of the writ of replevin.” Upon the hearing the special appeal was dismissed, and, on trial of the cause, a verdict and judgment were rendered in favor of the plaintiffs. The defendant has brought the case to this court by writ of error, and the questions stated are again presented.

It is an ancient rule of the common law that parties must sue by their Christian and sur names, and. that anything less is insufficient; and it was also a rule that actions should be brought in the names of copartners, and not of copartnerships. The latter rule is relaxed in this State by 2 How. Stat. § 6872, which permits actions to be brought in the firm name where the names of the persons composing it are, not known, and gives to plaintiffs in such cases the right to amend by inserting the names of the partners at any time before the pleadings are closed. There is force in the claim that this action was not begun in the name of the copartnership, but in the names of A. E. Stever and H. H. Stever, and that the affidavit implies that the firm consists of these two persons, and states that they (not the firm) are entitled to the possession of the chattels, and that the property is not held under any seizure, etc., against the goods and chattels of the Stevers (not the firm), and that the damages are claimed by them, and that, while “A. E. and H. H. Stever” may be the firm name, it is also an easy way of naming two persons, i. e., A. E. Stever and H. H. Stever, and it was apparently so treated by the' justice in making his writ. The writ speaks of them as “plaintiffs,” not “plaintiff,” indicating that the two Stevers were understood to be the parties to the action, and that they sue as copartners. We may, therefore, fhold that the action was not commenced in the name of a partnership, and, if an amendment of the names of the plaintiffs was necessary, it -was not by reason of the application of section 6872, but because the Christian names were not given.

The reason given for the requirement that parties should sue by their Christian as well as sur names is that a defendant has a right .to be assured of the identity of the person who sues him. See Fisher v. Northrup, 79 Mich. 287 (7 L. R. A. 629). Bacon declares that “it is repugnant to the rules of the Christian religion that there should be a Christian without a name of baptism.” 7 Bac. Abr. 7. This is a clue to the origin of the rule adhered to in Schofield v. Jennings, 68 Ind. 234, i. e., that since the time of William of Normandy “a full name consists of one Christian and one sur name; the two, using the Christian - name first, constituting the legal name.” There are persons, however, whose only name, aside from the surname, is an initial letter, and the courts of this country have recognized them as substitutes for full Christian names. There is some reason for thinking that at one time the courts recognized vowels only as substitutes for Christian names. Thus, Maule, J., said in the case of Lomax v. Landells, 6 C. B. 577, that “a vowel, which is itself a word, and may be pronounced separately, may be a name, though a consonant, which is incapable of being pronounced without the addition of a vowel, cannot.” See, also, Kinnersley v. Knott, 7 C. B. 980; Nash v. Collier, 5 Dowl. & L. 341. But see City Council v. King, 4 McCord, 487.

In Nelson v. Highland, 13 Cal. 74, Baldwin, J., said, “We cannot judicially know that one of the plaintiffs had either a Christian or a heathen name, or that it is necessarily untrue that he has forgotten it.” In our own case of Fewlass v. Abbott, 28 Mich. 270, this court refused to presume that a man had any other Christian name than an initial, for the purpose of setting aside a judgment. No distinction was made between vowels and consonants. This case is wholly at variance with the claim that proceedings are necessarily and absolutely void where no further Christian name than an initial appears; and, this being true, there is no difficulty in curing any defect by the insertion of the true and complete Christian name, if there be one, by amendment, so long as there is no question of identity of parties involved. By recognizing initials as names, the use of the initial, instead of the full Christian name that it represents, is merely a misnomer, just as it would be if a wrong Christian name should be used; and the rule in many jurisdictions is that misnomers of plaintiffs must be pleaded in abatement. See 17 Am. & Eng. Enc. Law, 605. But, as said by Mr. Tiffany (Justices’ Guide, 181), there is confusion upon this point; and the case of Fisher v. Northrup, 79 Mich. 287 (7 L. R. A. 629), would seem to permit the question to be raised by motion, as in this case. That case, however, implies that the justice might have amended the writ, and, therefore, that his writ was not void; and there is nothing in it to imply that pleading to the merits would not waive the defect.

Under the case of Fewlass v. Abbott, supra, had the affidavit not shown that H. H. Stever had a Christian name, the judgment could not be disturbed, as that is the only proof that either party had a Christian name. As it did, the justice should have amended his writ, the affidavit furnishing the necessary evidence to base an amendment on; and the judgment not being void, and it being appealed from, the circuit court had authority to make the amendment. Instead of doing so, it was disregarded, which, in view of defendant’s plea to the merits, we think was not error. See Emerson v. Spring Co., 100 Mich. 127; Barber v. Smith, 41 Mich. 143; Dailey v. Kennedy, 64 Mich. 208.

The affidavit, in substance, stated that the property was not taken for any tax, etc., against the property of the plaintiffs. We think this complies with the statute, to all intents and purposes. The statute (2 How. Stat. § 6856) states the form to be followed, and, had the word “plaintiffs ” been used, we think it would have been sufficient. Instead of that, he used the name “A. E. and H. H. Stever,” which, under the construction giyen to the use of that term, was equivalent to the word “plaintiffs.”

The judgment is affirmed.

The other Justices concurred.


text:
    CITY OF MENOMINEE v. S. K. MARTIN LUMBER CO.
    1. Taxes — Assessment—Stipulation—Appeal—Review.
    Where, upon an appeal from a judgment in assumpsit for taxes, it appeared that it was stipulated in the court below that the subject-matter of the action was the amount of a tax claimed to be due by virtue of an assessment assumed to have been made by the plaintiff, and that the only question presented in that court was whether, the assessment being in . the name of one other than the defendant, the assessment roll was conclusive, it was held that the failure of plaintiff to show that the necessary proceedings were had for equalization, apportionment, and assessment could not be urged as ground for a reversal.
    3. Same — Assessment in Wrong Name — Curative Statute.
    An assessment of property in the name of “S. K. M.,” instead of “S. K. M. Lumber Co.,” does not invalidate the tax, in view of the provision of section 99, Act No. 306, Pub. Acts 1893, that no tax assessed upon any property shall be held invalid on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, where it does not prejudice the property rights of the person whose property is taxed.
    3. Same — Assumpsit by City.
    A city may maintain assumpsit against the owner of personal property to recover taxes assessed thereon, though the assessment, through a mistake, was made in the name of one other than the owner. Township of Bangor v. Smith Transportation Co., 112 Mich. 601, followed.
    Error to Menominee; Stone, J.
    Submitted October 21, 1898.
    Decided January 3, 1899.

      Assumpsit by the city of Menominee against the S. K. Martin Lumber Company to recover a tax on personal property. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    This is an action of assumpsit, brought to recover taxes claimed to be due from the defendant for the year 1894. The property assessed was lumber situated in the city of Menominee. The declaration alleges that jthe assessment appears upon the roll to S. K. Martin, and’ that through a mistake the assessor omitted the words “ Lumber Company.” It is conceded that the lumber belonged to the defendant. Upon the trial it was stipulated that the subject-matter of the action was the amount of a tax claimed to be due by virtue of an assessment assumed to be made by the city in 1894. The stipulation then sets out the record of the assessment, as follows: “S. K. Martin, Chicago; 3,500 M. lumber; true cash value, $14,000; true cash value fixed by the board of review, $14,000.” Upon the trial plaintiff was permitted to show, and the court found as a fact, that the assessor knew that the property belonged to defendant, and that the entry “S. K. Martin” was erroneously made instead of “S. K. Martin Lumber Company.” The court entered judgment for plaintiff.

      Sawyer & Waite, for appellant.

      L. D. Eastman, for appellee.
   Grant, C. J.

(after stating the facts). 1. It is first urged that the finding and judgment are erroneous because plaintiff did not show that the necessary proceedings for equalization, apportionment, assessment, etc., were had. Under the stipulation, the record, and the findings and opinion of the circuit judge, we must conclude that this point was not raised in the court below, and that the sole question before the court was whether, the assessment being to S. K. Martin, the assessment roll was conclusive. We are therefore of the opinion that this contention cannot be sustained.

2. This suit is brought by the city, and not by the treasurer. The suit can, therefore, be maintained, under Township of Bangor v. Smith Transportation Co., 112 Mich. 601.

3. 'Was the tax record, showing an assessment to S. K. Martin, conclusive, and did it prevent the collection of the tax from the real owner ? This question has frequently-been before the court, and ruled against the defendant’s contention. Bradley v. Bouchard, 85 Mich. 18, and authorities there cited; Fletcher v. Post, 104 Mich. 424. The provision of the statute will be found in these opinions. Defendant relies on Township of Laketon v. Akeley, 74 Mich. 695. That suit was brought by the township treasurer. It was held that the power of the "treasurer to bring suit was limited by the statute to the. person “to whom the tax is assessed.” We hold that that decision does not apply to a suit instituted by the authority of the township to recover the debt, under Township of Bangor v. Smith Transportation Co., supra.

Judgment affirmed.

- The other Justices concurred.


text:
    FIRST BAPTIST CHURCH OF JACKSON v. CITIZENS’ MUTUAL FIRE INSURANCE CO.
    1. Fire Insurance — Action on Policy — When Premature.
    An action upon a standard fire-insurance policy issued by a mutual company, which contained, among others, a provision that all agreements affecting the policy should be written or printed thereon, was not prematurely brought when commenced more than 60 days after proof of loss, at -which time the policy by its terms was payable, although, under the company’s charter and a provision of the statute (3 How. Stat. § 4258), — neither of which was referred to in the policy, — suit could not be brought until 60 days after the loss had become due, where the company’s refusal to pay in the particular case was not put upon the ground that the loss was not yet due and payable, but was based upon the contention that other insurance had forfeited the policy.

      2. Same —Defenses — Breach of Condition — Amendment to Plea. '
    Where an insurance company failed to give notice with its plea of a defense of forfeiture on account of a breach of con- ■ dition with reference to additional insurance, as required by Cir. Ct. Rule No. 7 (d), of which additional insurance it at
    • the time had notice, and no application to amend was made until plaintiff had closed his case, the refusal of the circuit judge to allow the amendment was a proper exercise of his discretion.
    Error to Jackson; Chester, J., presiding.
    Submitted October 20, 1898.
    Decided January 3, 1899.

      Assumpsit by the First Baptist Church of Jackson against the Citizens’ Mutual Fire Insurance Company on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      George S. Wilson and Blair, Smith & Townsend, for appellant.

      T. E, Barkworth, for appellee.
   Moore, J.

A church building belonging to plaintiff was insured in the defendant company. It was burned the 31st of May, 1897. Proof of loss was made to Mr. Dodd, the adjuster of the company, and he issued a certificate of adjustment dated June 3, 1897, in which he stated he found the loss to be $2,149, and that he had adjusted plaintiff’s claim against defendant at the sum of $1,000.

In the application appears the question, “What other insurance on the same ? ” The question was not answered. The policy is a standard policy, and contains this clause: ‘ ‘ This policy is issued on written application by the assured, which is hereby made a part of this policy. Other concurrent insurance permitted.” The proofs of loss showed there’ was a policy of $500 insurance upon the property in another company. The proofs of loss were filed with the president, chairman of the executive board, and other officers of the company, about July 10, 1897. Upon that day the officers of the church met the officers of the company, and discussed the adjustment of the loss. No question was then raised as to the sufficiency of the proof, but it was claimed the insurance in another company, without the consent of defendant company, forfeited the policy. A special meeting of the board of directors was called in August with a view of coming to a final adjustment. Nothing was accomplished, and the matter was referred to the executive board for final action. The premium was not returned. On August 31st inquiry was made of the secretary of the company by the attorney for plaintiff whether he should go ahead and commence suit, or wait for the executive committee. The secretary told him he did not think the executive committee would do anything about it. Nothing was done by the executive committee, and this suit was commenced upon the policy to recover the loss, September 15, 1897. The defendant pleaded the general issue, without attaching thereto any notice whatever. The case was tried in December, 1897, and by direction of the court a verdict was rendered in favor of the plaintiff. It is claimed by defendant that, as it is a mutual company, the provisions of the charter and of the statute governing mutual insurance companies attach to the insurance policy issued by it, and that, by the terms of the charter and statute, the insurance does not come due until 60 days after proof of loss, and suit cannot be brought until 60 days after the loss becomes due. 3 How. Stat. § 4258. On the other hand, it is claimed that, as the policy was a standard policy, plaintiff was not a member of the company, or bound by its charter, or by the statute in question, and that suit might be brought, by the terms of the policy, any time when 60 days had elapsed after proof of loss. It is also claimed the defense could not be made under the pleadings.

The provisions of the policy in relation to the payment of the loss are as follows:

“The sum for which this company is liable pursuant to this policy shall be payable 60 days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.”

The policy provides that, in case there is any disagreement about the amount of the loss, the amount may be determined by appraisers, and then reads:

“The loss shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers, when appraisal has been required.”

The policy also contains this condition:

“ If this policy be made by a mutual or other company having special regulations lawfully applicable to its organization, membership, policies, or contracts of insurance, such regulations shall apply to and form a part of this policy, as the same may be written or printed upon, attached or appended hereto.
“ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto.”

There is no suggestion in the policy that, in case the company failed to pay the loss when due, a suit at law could not be commenced until 60 days after the loss became due and payable, nor is there any reference in the policy to any such provision of the statute. The policy itself provides that all agreements affecting it shall be written or printed upon the policy itself. The refusal to pay was not put upon the ground that satisfactory proof of loss was not furnished, nor that the loss was not yet due and payable, but was based upon the contention that other insurance forfeited the policy. By the terms of the policy, the loss was payable 60 days after proof of loss. June 3, 1897, the adjuster of the company made a certificate that he had carefully examined the loss and the circumstances of the fire, and found claimant had suffered loss, without fraud, to the amount of $2,149, and that he adjusted plaintiff’s claim at $1,000. Attached to this certificate was a statement of the insurance upon the property, its amount, and the names of the companies having it. The refusal to pay was not put upon the ground that the loss did not occur, or that it was not due, but was based upon the contention there was a forfeiture of the policy. When questioned by the attorney for plaintiff whether he should commence suit, or wait for the executive committee, the attorney for plaintiff was informed by the secretary of the company that he did not think the executive committee would do anything. Under this state of facts, the court did not err in holding the suit was not prematurely brought. O’Brien v. Insurance Co., 52 Mich. 131; Gristock v. Insurance Co., 84 Mich. 161; Lum v. Insurance Co., 104 Mich., 397.

It is also claimed on the part of defendant the policy was forfeited by reason of the insurance in another company, as permission for other insurance for a specific amount was not named on the policy. On the part of the plaintiff, it is claimed the words in the policy, “other concurrent insurance permitted,” was a consent to the insurance which was obtained. The defense of forfeiture on account of a breach of the conditions, agreements, or representations of the policy or application therefor, in a suit upon a policy of insurance, may be waived. Bonenfant v. Insurance Co., 76 Mich. 653; Cleaver v. Insurance Co., 71 Mich. 414 (15 Am. St. Rep. 275); Marthinson v. Insurance Co., 64 Mich. 372. Unless notice is given, with the plea, of such defense, it cannot be asserted upon the trial. Cir. Ct. Rule No. 7 (d); Home Ins. Co. v. Curtis, 32 Mich. 402; Hann v. National Union, 97 Mich. 513 (37 Am. St. Rep. 365).

The record shows that upon the trial defendant asked leave to amend its plea by giving notice of a forfeiture of the policy. It is claimed the court erred in its refusal to permit the amendment. As already appears, this suit was begun September 15th. Defendant then knew of the additional insurance. It interposed its plea without indicating it intended to insist upon the defense of a forfeiture, and the trial was entered upon in December. It was not until after the plaintiff had closed its case that application was made to the court to .allow the amendment. The proposed amendment would change the issue made by the pleadings. The judge, in the exercise of his judgment, refused to allow the amendment to be made. Under the circumstances of the case, we are not inclined to interfere with the discretion exercised by him. Souvais v. Leavitt, 53 Mich. 577; Minnock v. Insurance Co., 90 Mich. 236.

Judgment is affirmed.

The other Justices concurred.