text:
    BURNS v. MICHIGAN MANUFACTURERS’ MUTUAL FIRE-INSURANCE CO.
    1. Michigan Standard Fire-Insurance Policy — Certificate of Adjuster.
    There is nothing in the Michigan standard fire-insurance policy requiring the insured to obtain from an adjuster a certificate that he has suffered loss by fire, and of the amount thereof.
    2. -Same — Proofs of Loss by Agent.
    Under the Michigan standard policy, requiring proofs of loss to be signed and sworn to by the insured, they may be made by an agent, where the insured is critically ill, and his physicians will not permit him to attend to any business.
    Case made from Bay; Shepard, J.
    Submitted April 9, 1902.
    (Docket No. 21.)
    Decided May 19, 1902.

      Assumpsit by Edward Burns against the Michigan Manufacturers’ Mutual Fire-Insurance Company on a policy of insurance. There was a judgment for plaintiff on verdict directed by the court, and defendant assigns error.
    Affirmed.

      Chester L. Collins, for appellant.

      John L. Stoddard, for appellee.
   Moore, J.

The plaintiff is a resident of the city of New York. The defendant is a Michigan insurance corporation, which issued a policy of insurance upon a planing and saw mill owned by plaintiff, situated in the State of Georgia. This property was partially destroyed by fire early in April, 1899. On the 20th day of the same month it was totally destroyed. The circuit judge directed a verdict in favor of plaintiff. The case is brought here on case made.

Upon the trial it was conceded by counsel that the fire and loss occurred as alleged in the declaration, and the loss amounted to $955. The policy sued upon is a Michigan standard policy, containing, among other provisions, the following:

“If fire occur, the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon, and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief ,of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property,” etc.

The defense is that the proofs of loss did not comply with this provision.

The record discloses that the plaintiff is the cashier of a bank in New York. While on his way to business, in April, 1899, he was taken seriously ill, caused by overwork. The board of directors granted him leave of absence for six months. . His physician forbade his doing any business, because of his physical and mental condition, and he did none — not even signing personal checks — until the latter part of September of that year. The doctor testified that he was physically and mentally unable to attend to business after he was taken ill, or for many months thereafter; that he was threatened with softening of the brain, and was dangerously ill; that he could not receive and answer letters, nor could he sign and swear to an affidavit.

The policy was procured through Mr. Young, an insurance broker living in Brooklyn, N. Y., who, immediately after the first fire, notified the defendant, by mail, of the fire. Mr. Howley, an insurance adjuster, notified the defendant, by mail, of the second fire. A little later Mr. Howley. went to Georgia, and, in company with two men representing the tariff association- companies, proceeded to investigate the loss, its extent, and to adjust it. Upon his return to New York, he prepared formal proofs of loss, which were signed and sworn to May 26th by F. B. Anderson, who was assistant cashier of the bank under Mr. Burns, who signed the proofs of-loss, “Edward Burns, per F. B. Anderson, Attorney.” The formal heading of the proofs of loss reads as follows:

“ State of New York, )
County of New York. )*ss'
“ Be it known that on this 26th day of May, A. D. 1899, before me, Walter A. Bennett, a notary public, duly commissioned and sworn, and residing in the city of New York, in the county and State aforesaid, personally appeared F. B. Anderson, attorney for Edward Burns, who, being duly sworn, deposes and says.”

These proofs of loss were inclosed in a registered letter and mailed to defendant May 26th, together with a letter from Mr. Howley saying:

“The assured, Mr. Edward Burns, one of our leading financiers, and cashier of the American Exchange National Bank of this city, is, and has been for several weeks, critically ill; and his physicians will not permit him to attend to any matter of business, however important. It has therefore become necessary to have the proofs executed by his attorney in fact, Mr. Anderson, who is temporarily discharging Mr. Burns’ duties at the bank.”

This letter was on the following day received by defendant. It made no reply until July 19th, when it wrote to Mr. Burns. The important parts of the letter are as follows:

“ The alleged proofs are not executed by you, but by one F. B. Anderson, attorney; and, while they have attached to them printed forms for adjuster’s certificates, the same have not been filled in by the adjuster, who, we understand, prepared them for you. This company cannot, on the evidence before it, recognize the right and power of an insured party to delegate the important duty of proving a claim under oath to a third party, — more particularly when there is nothing to show that said third party has had such power granted him; and I am instructed to request that you present your claim in the manner prescribed by the conditions of the policy.”

July 21st Mr. Howley wrote defendant:

Dear Sir: Replying to yours of the 19th inst., Mr. Burns’ condition is such that he cannot, without great danger, be interviewed in regard to any matter of business. Mr. Anderson is fully authorized to make up the formal proofs. Should, as it is hoped, Mr. Burns recover from his present serious illness, the necessary power of attorney will be prepared and sent you.”

October 11, 1899, he wrote the defendant:

“Referring to my reports of the 21st July last, I have the pleasure to report Mr. Burns’ return to health, and to his office, where he appeared today for the first time in six months. Mr. Bums has executed, and I beg to hand you herewith, certificate confirming Mr. Anderson’s authority to execute proof for him, which, I am sure, will be found satisfactory.”

Inclosed with this was a paper, sworn to by Mr. Burns, in which he confirmed Mr. Anderson’s authority to make the proofs of loss, and also swore that the statements contained in said proofs are a just, true, and faithful statement of his loss and claim, as far as he has been able to ascertain the same. It is claimed by defendant it never received this letter and inclosure. Some other correspondence followed. March 30, 1900, Mr. Howley visited defendant, at its office, for the purpose of securing a settlement, if possible, of the claim. He did not succeed in doing so, and this suit was brought.

• The circuit judge was of the opinion that the insurance company, by delaying nearly two months in making objections to the proofs of loss after they were received, had waived its right to object to them. A reference to the letter of July 19th will show that but two objections were made to the proofs of loss: First, that the printed form for the adjuster’s certificate had not been filled in; and, second, that the alleged proofs were not executed by Mr. Burns. There was a provision in the policy giving the defendant the right to require “á-certificate of the magistrate or notary public (not interested in the claim, as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances, and believes the insured has honestly sustained loss to the amount that such magistrate' or notary public shall certify.” This was not required by the company. Nothing in the policy gave the company the right to require the adjuster to make a certificate. In view of the fact that the company knew of the condition of Mr. Burns, and his inability to do what it asked to be done, it was not very creditable for it .to wait until three months (lacking one day) after the fire before making the second objection. If the company had any doubt of the loss, or of the extent of it, it ought to have so suggested, and required additional proof.

In 2 Wood, Fire Ins. § 438, p. 931, it is said:

“Proofs of loss should be made as required by the policy, both as to substance and time, or a legal excuse shown therefor. They should be made either by the assured himself, his agent, or the party in interest. If the assured himself does not make the proofs, a valid reason therefor should be shown; and it is sufficient to show that he is a nonresident, dead, or was absent or insane at the time when the loss occurred, and did not return in season to make the proofs; or that he did not possess the necessary information in reference to the matters required to be stated to make the proofs; or that the person making the proofs is the party in interest, to whom the loss, with the assent of the insurers, is made payable, or. is the real party in interest, and that the assured refused to execute them; or that they were made as directed by the insurers’ agent; or that the objection as to their being made by the wrong person'has been waived.”

See, also, Insurance Cos. v. Boykin, 12 Wall. 433; Milwaukee Mechanics’ Ins. Co. v. Brown, 3 Kan. App. 225 (44 Pac. 35); Watertown Fire-Ins. Co. v. Grover & Baker Sewing-Mach. Co., 41 Mich. 131 (1 N. W. 961, 32 Am. Rep. 146); 13 Am. & Eng. Enc. Law (2d Ed.), 332.

In McGraw v. Insurance Co., 54 Mich. 145 (19 N. W. 927), it is said:

“Under the policy in question, proofs of loss required by its terms are a condition precedent to a right of recovery ; and, in general, they are to be signed and sworn to by the assured in person. But the clause in question is subject to exceptions, — as where the owner is a nonresident, dead, or was insane or absent at the time when the loss occurred, and did not return in season to make the proofs, or did not possess the necessary information in reference to the matters required to be stated to make proofs, or that the objection as to their being made by the wrong person has been waived. See 2 Wood, Ins. § 413. But where the assured can himself make the necessary proofs, he should do so, or give a sufficient excuse for his failure; and ordinarily (though this is not essential) the reasons why the proofs were not made by the assured should be stated in the proofs of loss.”

See, also, O’Conner v. Insurance Co., 31 Wis. 160; German Fire-Ins. Co. v. Grunert, 112 Ill. 68; Findeisen v. Insurance Co., 57 Vt. 520.

The terms of the insurance policy should be given a reasonable construction. They require the proofs of loss to be ma’de within 60 days after the fire. During all this period of time Mr. Burns was unable, because of his very serious illness, to do any business whatever, and that fact is at once communicated to defendant. Within the 60 days, three adjusters make a careful examination at the place of the loss, of the loss, and its extent. One of these adjusters reported all the details of the loss to Mr. Anderson, who swore to the formal proofs of loss. Mr. Burns testified upon the trial in relation to this action of Mr. Howley and Mr. Anderson:

“The proofs of loss were prepared by Mr. John Howley, and were sworn to by Mr. F. B. Anderson, who wSs my deputy in that matter. Both acted as my agents.”

In the proofs of loss Mr. Anderson described himself as the attorney for Mr. Burns. Accompanying the proofs of loss was a statement showing a valid reason why the proofs of loss were not made by Mr. Burns. As soon as he was able to do so, Mr. Burns ratified all that had been done upon his behalf.

The case is within the letter as well as the spirit of the law to which we have called attention. We do not deem it necessary to discuss the other questions. There was no conflict in the evidence as to the inability of Mr. Burns to do business between the time of the loss and the month of September, nor is there any conflict in the testimony that defendant was fully advised of this inability at the time the proof of loss was made. See Cobbs v. Fire Ass’n, 68 Mich. 465 (36 N. W. 222); Towle v. Insurance Co., 91 Mich. 219, 226 (51 N. W. 987); Marthinson v. Insurance Co., 64 Mich. 372 (31 N. W. 291); 2 Wood, Fire Ins. § 438, p. 953.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    BALEN v. LEWIS.
    • 1. Mortgages — Release—Discharge—Notice.
    A mortgagee, by releasing several distinct parcels of land, does not discharge from liability another parcel of land sold prior to such releases, unless he had notice of the sale by the mortgagor, or that the purchaser was claiming rights which would put a reasonably prudent man on inquiry.

      2. Same — Constructive Notice.
    In such case the record of the purchaser’s deed is not constructive notice to the mortgagee.
    3. Same — Actual Notice.
    The fact that the mortgagee’s agent was in the city once or twice a year after the purchaser went into possession is not sufficient to charge the mortgagee with notioe of the purchaser’s occupancy.
    4. Trust Deed — Presumption as to Application oe Rents.
    Where a mortgagor gives a trust deed to the mortgagee’s hus- • band for the benefit of the mortgagee, authorizing him to sell the property and apply the proceeds to the expenses of the trust, interest and principal of the mortgage, and remainder to the grantor, and it is accepted with the understanding that it shall not in any wise affect or impair the mortgage, it will not be presumed, in the absence of evidence to that effect, that the rents and proceeds of the property, which the mortgagor was thereafter permitted to collect, were not applied in accordance with the trust deed.
    Appeal from Bay; Shepard, J.
    Submitted April 10, 1902.
    (Docket No. 44.)
    Decided May 19, 1902.
    Bill by Fanny R. S. Balen against Frances Lewis, William W. Chapman, administrator of the estate of George Lewis, deceased, Joseph E. Chateauneuf, and others, to foreclose a mortgage. From a decree in favor of defendant Chateauneuf, complainant appeals.
    Reversed.
    77. B. Lor anger (*o. P. Flynn, of counsel), for complainant.

      James Donnelly, for defendant Chateauneuf.
   Hooker, C. J.

The complainant, a mortgagee, foreclosed her mortgage, which, when given, covered several distinct parcels of land. Defendant Chateauneuf had, after the execution of complainant’s mortgage, unbeknown to the complainant, purchased, entered upon, and improved one of said parcels, which we may designate as “Lot 8.” Several of the parcels were released from the mortgage after the sale of lot 8 to Chateauneuf. Being made a party defendant as a subsequent purchaser, Chateauneuf answered that lot 8 was discharged from liability, by reason of the release of other parcels primarily liable, and the court so decreed. The complainant has appealed.

Complainant’s mortgage was made on October 10, 1881. At that time there was no building upon lot 8. Defendant Chateauneuf bought the lot in'May, 1882, erected a house, and moved upon the premises in June, 1882, or thereabouts, and has since occupied it as a homestead. He received a deed from Lewis, complainant’s mortgagor, in 1887, when he gave a mortgage back to Lewis for $192. The evidence shows that the complainant released several parcels of land from the lien of said mortgage after the defendant Chateauneuf purchased and entered upon lot 8. There is, however, an absence of proof that either the complainant or her agent had actual notice of defendant’s rights. It is insisted by defendant’s counsel that complainant had constructive notice. The mere fact that defendant’s deed was of record is not constructive notice. In order to raise an equity in favor of a purchaser, it must appear, either that the mortgagee, before releasing, had notice of the sale by the mortgagor, or that the purchaser was claiming rights which would put a reasonably prudent man on inquiry. In such case he would be held to notice of facts which the record of the deed would disclose.

The defendant asserts that the circumstances of this case should constitute such notice as would put a prudent man on inquiry, claiming that the complainant’s agent was in the city once or twice a year, and must be chargeable with knowledge of defendant’s occupancy. We are referred to the case of Dewey v. Ingersoll, 42 Mich. 17 (3 N. W. 235), as a case in point, where it was held that the facts should have put the mortgagee upon inquiry. The facts were that the mortgaged premises were upon one of the principal streets of the village where the mortgagee resided, and the purchaser promptly recorded her deed and went into actual possession of the premises, made improvements, and resided thereon. There was evidence tending to show that one of the mortgagees had actual notice of these facts, and he, although examined as a witness, did not deny having notice. The present case falls short of this. Actual notice is clearly disproved. Chateauneuf appears to have been as ignorant of complainant’s mortgage interest as she was of his subsequent purchase, although, had he examined the record before purchasing, he would have learned of it; and such examination he was in duty bound to make, while the complainant was under no obligation to search the record for subsequent deeds. Stuyvesant v. Hone, 1 Sandf. Ch. 419; Cheesebrough v. Millard, 1 Johns. Ch. 414 (7 Am. Dec. 494); Howard Ins. Co. v. Halsey, 8 N. Y. 271 (59 Am. Dec. 478); James v. Brown, 11 Mich. 25; Cooper v. Bigly, 13 Mich. 476; Woods v. Love, 27 Mich. 309; Hall v. Edwards, 43 Mich. 475 (5 N. W. 652); Shelden v. Warner, 45 Mich. 640 (8 N. W. 529).

This court said, in the case of James v. Brown, supra:

“While the law requires every man to deal with his own so as not to injure another, it imposes a greater obligation on the other to take care of his own property than on a stranger to take care of it for him. And to make it the duty of the first mortgagee to inquire before he acts, lest he may injure some one, would reverse this rule, and make it his duty to do for the second mortgagee what the latter should do for himself. To affect the conscience, therefore, of the first mortgagee, — for this whole doctrine is one of equity jurisprudence, and not of positive law, — it would seem that he should have actual knowledge of the second mortgage. We do not say notice from the second mortgagee is absolutely necessary to enable him to claim the rights of which we have been speaking; but we do think that the existence of the second mortgage should clearly be brought home to the knowledge of the first mortgagee in such a way. as to show an intentional disregard by him of the interests of the subsequent mortgagee.”

We think, therefore, that the complainant has not impaired her security by her releases.

A trust deed was executed by Lewis, the mortgagor, to complainant’s husband, on the 30th day of November, 1894, whereby Lewis conveyed to him all of the property remaining in his name; also all leases and executory contracts outstanding. He was authorized to sell the property and apply the proceeds: (1) The expenses of the trust; (3) taxes; (3) insurance, if deemed advisable; (4) interest on complainant’s mortgage; (5) the principal of the mortgage; (6) reconvey remainder to Lewis. This trust was accepted in writing upon the expressed understanding that the same was not in any wise to bind said complainant, or be deemed payment of her mortgage,- or in any wise affect or impair the security, rights, or remedies given by said mortgage. It is contended by defendants’ counsel that this trust deed was given for the benefit of the complainant, and that it was her duty to collect rents from tenants and amounts outstanding upon executory contracts, and especially a sum secured by mortgage upon lot 8, given by defendant to Lewis, and which sum he is said to have afterwards paid to Lewis by reason of his ignorance of the existence of the complainant’s mortgage and the trust deed. Lewis was permitted to collect a .portion of the rents, and possibly some amounts due upon contracts.

We are unable to find that anything was paid to Lewis upon the mortgage after the trust deed was made, and, if it- could otherwise be claimed that the trust deed operated as an assignment of the mortgage to the complainant’s agent, it is not clear that it had not been previously paid to Lewis. Nor is there any proof that Balen ever heard of the mortgage. The record does not warrant us in saying that rents received by Mr. Lewis .were not applied in accordance with the trust deed, and we find no evidence showing how much, if any, collected by Lewis was not paid over. Neither does it appear how much, if any, was collected by the family after Lewis’ death, nor how much has been uncollected, if any. We must assume that the amount reported due upon the mortgage is correct, and feel constrained to hold that lot 8 should not be discharged from the mortgage. It should be the last parcel to be sold, however. The decree will be modified in this particular, and complainant will recover costs of this court against defendant Chateauneuf.

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


author: Moore, J.

text:
    MICHIGAN TRUST CO. v. COMSTOCK.
    1. Fraudulent Conveyances — Homestead.
    A creditor cannot attack the conveyance of a homestead for fraud.

      2. Same — Agreement to Support — Consideration.
    An agreement for the future support of the grantor is not a sufficient consideration for a conveyance as against creditors.
    3. Same — Support Furnished Prior to Deed.
    Expenses incurred or services performed for and in behalf of a grantor prior to the execution of the deed constitute a valid consideration, entitling the grantee to compensation therefor on the deed’s being set aside by creditors.
    A Insolvent Debtors — Preferences.
    An insolvent debtor has a right to prefer one creditor to another.
    Appeal from Mecosta; Russell, J., presiding.
    Submitted April 10, 1902.
    (Docket No. 49.)
    Decided May 19, 1902.
    Bill by the Michigan Trust Company, receiver of the Mecosta County Savings' Bank, against Dolly Ann Com-stock, George W. Millner, and Jennie M. Millner, in aid of execution. From a decree for complainant, defendants Millner appeal.
    Modified and affirmed.

      M. Brown, for complainant.

      Smedley & Corwin, for appellants.
   Moore, J.

This is a bill filed for the benefit of a creditor of Mrs. Comstock, in which it is sought to set aside a deed made by her to her daughter and her daughter’s husband. This deed was made the 22d day of July, 1899. The receiver obtained a judgment against Mrs. Comstock July 12, 1899, and made a levy upon the land in question, August 14, 1899. The circuit judge made a decree, in which he found the land conveyed was worth $4,000, and that it embraced a homestead. He also found Mr. Millner had paid taxes upon the property conveyed, amounting to $722. The decree provides there shall be paid to Mr. and Mrs. Millner the sum of $1,500, the value of the, homestead interest, and to Mr. Millner, for taxes and interest, $451.25. It provides for a sale of the land subject to the payment of these sums. The defendants have brought the case here by appeal. The complainant, after showing its judgment, execution, levy, and the conveyance by Mrs. Comstock to the other two defendants, rested. On the part of the defendants, Mr. and Mrs. Millner, Dr. Griswold, Mr. Tucker, and Mr. Nucomb were sworn. No rebutting proof was put in by complainant. The witnesses for defendants testified the property was worth from $3,000 to $3,500, and was assessed at $4,000.

The testimony discloses that in the fall of 1898 Mrs. Comstock became ill with dropsy. She was living in her own house with her husband. Her daughter and son-in-law, Mr. and Mrs. Henderson, were living with her, and taking care of her. The Hendersons decided to go away. Mr. Millner was a druggist at Big Rapids, and prior to the 22d of July he furnished Mrs, Comstock with drugs and medicines to the amount of $74. He also bought wood for her prior to April, amounting to $82.50. April 1st the Millners moved into the house. Mrs., Millner’s version of the agreement is:

“ I remember when I came to my mother’s home to take care of her. It was the 1st of April, 1899. My mother was sick, and needed care, and mf sister was going away, and there was no one to care for her, and we had to go and care for her. My sister’s name was Eva Z. Henderson. Before me and my husband went there my sister took care of my mother. She had not been ill so long; she had been ill only about six months when we went up there. At the time we went there she was not any better. There was no prospect of her getting any better soon. At that time they called it asthma. Later on they called it dropsy. She required the attendance of a nurse constantly. We never left her alone a moment from the time we went there. She had sinking spells part of the time. When we went there in April, 1899, the talk we, .had with mother — my husband and I — was that, if we would come there, and take care of her, and provide her a home there in that house where she was living, that when she was gone we was to have the home. The home was to be deeded to us at that time, to take effect right along. My husband and I agreed to that. We agreed that when we went down there that we were to provide all the care she needed, and that she was to turn the home over to us in payment for the care we were to give her. She was owing my husband at that time a small amount. It was to wipe that debt out, all back indebtedness, and for all future care. We didn’t know how many years she would be sick, nor she didn’t know. I talked it over with my husband before we agreed. We talked it' over a number of times before we went. Our duties commenced the 1st of April, 1899.”

The testimony discloses that, as a result of the dropsy, Mrs. Comstock was helpless; she became very heavy, weighing 250 or 300 pounds; that her illness made it necessary for the Millners to keep a hired girl, and to keep the house unusually warm all the time; that her meals were served in her room. Mrs. Comstock died in May, 1901, and the Millners paid the doctor’s bills and funeral expenses. The doctor testified, as to Mrs. Com-stock’s condition, that she required constant care; that her limbs enlarged so the skin opened, and discharges were made, which were offensive; and that it would have been difficult to get a nurse who would remain any length of time, and, if one could have been obtained, it would have cost $15 to $25 a week; and that a charge of $10 a week for what Mrs. Millner did would be very reasonable. Mr. Millner paid Mrs. Comstock’s taxes for 1896, $251.53; also the taxes for 1897, $257.19; also the taxes for 1898, ,$181.69.

For the purpose of carrying out the agreement made in April, Mrs. Comstock, on the 22d of July, 1899, made a quitclaim deed of her homestead. At the same time the Millners gave back to her an agreement containing, among others, the following provisions':

“Now, therefore, in consideration of the said conveyance of said lands and tenements to them as aforesaid, the said parties of the first part hereto agree to support, maintain, and clothe her, the said Dolly Ann Comstock, for and during the remainder of her natural life, in as comfortable a manner as she has been accustomed to during the past two years, and furnish her with all necessary medical attendance, medicines, and nurses so long as she shall live, and finally to pay all expenses of her last illness as well as burial and funeral expenses. It is further agreed by said first parties hereto that the conveyance of the property aforesaid shall be and is received by them in full payment and satisfaction of and for all expenses and care heretofore incurred and exercised by them in behalf of her, the said party of the second part hereto.”

There is nothing to impugn the good faith of the parties in entering into this transaction. ’ Mrs. Comstock had the right to do what she would with her homestead. Rhead v. Hounson, 46 Mich. 243 (9 N. W. 267); Cole v. Cole, 126 Mich. 569 (85 N. W. 1098); Eagle v. Smylie, 126 Mich. 612 (85 N. W. 1111). She had a right to prefer one creditor to another. Shay v. Wheeler, 69 Mich. 257 (37 N. W. 210); Belding Sav. Bank v. Moore, 118 Mich. 154 (76 N. W. 368). It is also true that an agreement for future support would not be a sufficient consideration for a conveyance as against creditors, for that would be a provision for the direct benefit of the grantor. Rynearson v. Turner, 52 Mich. 7 (17 N. W. 219). So far, however, as expenses had been incurred or services had been rendered up to the time when this deed was made, we can see no reason why defendants should not receive compensation therefor. Howard v. Rynearson, 50 Mich. 307 (15 N. W. 486); Rynearson v. Turner, supra. There was no dispute but that, prior to the making of the deed, the following items for expenses and services had been incurred by the Millners, made necessary for the proper care of Mrs. Comstock: Drugs and medicines, $74; wood, $82.50; hired help, $80; doctor’s bill, $23; extra work, $48; nursing by Mrs. Millner, $160. There had also been paid by Mr. Millner, on the property, taxes amounting to $239.16 more than was allowed by the circuit judge. The decree should be modified by adding these items to the decree made by the circuit judge, and it is so ordered. Defendants will recover costs of this court.

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


author: Grant, J.

text:
    WALKER v. NEWTON.
    1. New Trial — Review on Error.
    3 Comp. Laws, § 10504, providing that, where a motion for a new trial has been refused, “the party appealing the case may incorporate in the bill of exceptions a record of all proceedings had on the motion for a new trial,” authorizes a writ of error for the sole purpose of reviewing the action of the circuit court in refusing to grant a new trial. Grant, J., dissenting.
    3. Exhibits in Jury-Room — Consent.
    A finding by the trial court that counsel for both parties consented that exhibits should be taken to the jury-room renders it unnecessary to determine whether, without consent, the exhibits were properly submitted.

      Error to Chippewa; Steere, j.
    Submitted April 11, 1902.
    (Docket No. 58.)
    Decided May 19, 1902.

      Assumpsit by Samuel Walker and another against Henry L. Newton to recover a balance due on a building contract. Plaintiffs had verdict and judgment, and, a motion for a new trial having been denied, defendant brings error.
    Affirmed.

      Warner & Sullivan, for appellant.

      John W. Shine (E. S. B. Sutton, of counsel), for appellees.
   Grant, J.

In this case a bill of exceptions was settled, and the case brought to this court by writ of error, for the sole purpose of reviewing the action of the circuit court in refusing to grant a new trial. - '

The right to review the order of the court in refusing a motion for a new trial is purely statutory. It can only, in my judgment, be reviewed when a bill of exceptions is settled for alleged errors during the progress of the trial. The statute reads as follows:

“ That in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall'be reviewed by the Supreme Court.” 3 Comp. Laws, § 10504.

I do not think the statute authorizes an independent bill of exceptions and writ of error to review the orders q£ courts upon such motions.

My Brethren do not agree with me in the views above expressed, and are of the opinion that the statute authorizes a writ of error and bill of exceptions upon a decision of the court upon motion for new trial. It therefore be-' comes essential to determine the question raised upon the motion.

After the case was submitted to the jury, the court, in the absence of counsel, permitted, at the request of the jury, certain of the plaintiffs’ exhibits to be sent to them. This is the sole ground now urged for a reversal of the judgment. The finding of the court upon this point is as follows:

“In that connection, it is the conclusion of the court that the action referred to was further justified by the peculiar circumstances of the case. The matter of allowing the jury to take and examine papers in the case was first called to the attention of the court by counsel for the defendant. This was opposed by counsel for plaintiffs, and considerable discussion was had thereon. Finally, counsel for plaintiffs withdrew their opposition, and consented to any exhibits in the case being given to the jury during their deliberation, if they were desired. Much discussion was had during the canvassing of this question, as the result of which the impression was given to the court that it was the desire, or at least agreeable to both parties, that any exhibits in the case should be given to the jury if they asked for them. At the conclusion of this discussion the court said to the jury in the presence of both parties, £ Counsel has stated that you can have these exhibits, gentlemen, if you wish them.’ Counsel for defendant made no objection at that time, although in the presence and hearing of the court when this statement was made. Later on, and while the jury were in their jury-room deliberating upon their verdict, they sent for certain exhibits, which were given to the officer in charge and taken to the jury. While tips was being done, the court sent for counsel for the respective parties, informed them of what was taking place, and told them — both counsel for plaintiffs and counsel for defendant — that any exhibits which they desired sent to the jury-room would be sent now, if they would suggest them. At that time the court for the first time learned that counsel for defendant were opposed to ,the jury having the exhibits during their deliberation. Such being the situation, the conclusion of the court is that the court was justified, under the peculiar circumstances of this case, in sending to the jury-room the exhibits called for; and also it is the conclusion of the court that it was, under any circumstances, a discretionary matter, and within the power of the court to allow the exhibits which were sent to the jury-room to be given to the jury when called for.”

The finding of the court that counsel consented to the exhibits being taken to the jury-room is conclusive, and renders it unnecessary to determine whether, without consent, the exhibits were properly submitted.

The judgment is affirmed.

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


text:
    SPAVEN v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Injuries by Railroad — Plage of Safety — Station.
    A railway company, which, has provided a station room and platform for the use of those who have occasion to depart from and enter its trains, is not liable to a person who, before the arrival of the train, leaves the platform, and, while walking unnecessarily upon an adjacent track, is injured by a switch engine of another railway company.
    2. Same — Contributory Negligence — Walking on Track.
    Plaintiff, who had for two years been in charge of twp semaphores and a joint switch at a railroad junction, after his day’s work, waited at the junction station for a train to take him home. When his train was due he left the station, and, looking down the track, saw a headlight, which he thought was the train he expected. Knowing the train customarily stopped with the rear car at the station, he left the platform, and walked on a track 20 feet from and parallel with the one on which the train would arrive, for the purpose of entering a second-class coach next the engine, although there was ample space between the tracks for walking. Plaintiff knew engines were liable to run over the track at any time, but did not look back after stepping upon the track. After he had gone 100 feet, a switch engine, without blowing its whistle or ringing a bell, ran him down. Held, that plaintiff was guilty of contributory negligence, and could not recover for the injury.
    Error to Wayne; Hosmer, J.
    Submitted April 11, 1902.
    (Docket No. 32.)
    Decided May 19, 1902.
    Case by John Spaven against the Lake Shore & Michigan Southern Railway Company and the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.
    At the time of the accident upon which this suit is based, and for years prior thereto, the defendant companies operated jointly a double-track railroad extending from the Brush-street depot, in the city of Detroit, to Dequindre street, north on Dequindre street to a point about 200 feet north of Ferry avenue, where the trains of the Labe Shore diverge from the double tracks in a westerly direction onto the Labe Shore main line, the double track of the D. & M. continuing northward. The easterly main track was used by all trains going north, and the westerly main track by all trains going south. About 500 feet south of Ferry avenue there was a semaphore which controlled outgoing trains, and about 200 feet north of Ferry avenue there was a semaphore which controlled incoming trains. Between Ferry avenue and the semaphore on the south side there is a joint switch, used to switch trains over from the outbound track to the inbound track, and thence onto the Lake Shore main track. Just south of Ferry avenue a cross-over track connects these two tracks. About 250 feet south of Ferry avenue, on the easterly main track, is a switch which opens into the cross-over track. At the northerly end of the cross-over, where it connects with the inbound main track, there is another switch. An outbound Labe Shore train would come up the easterly D., G. H. & M. main track to the switch first above named, would pass over it into the cross-over, out of the cross-over by the second switch upon the inbound track, along it a short distance, and then over the joint ■switch upon the Lake Shore track. , After running a train length, plus the distance from that switch to Ferry avenue and the width of Ferry avenue, it would stop, with its rear car opposite the car-checker’s shanty. To get it from the outbound D., G. H. & M. main track to its stopping place, the three switches had all to be opened and set for its passage. They were all fitted with switch lamps, which showed, to one looking down from Ferry avenue, white when the switches were set for the main lines, and red when they were set for the Lake Shore outbound train to make the station.
    About 250 feet south of Ferry avenue, and just south of the joint switch, and westerly of the inbound track, there was a telegraph station, which was used by the telegraph operator and the person in charge of the joint switch and the semaphores, which were operated from this station by levers. West of the inbound track there was a long siding, commencing just south of the telegraph office, and extending south to Gratiot avenue and beyond. This siding was parallel with the main tracks, was connected with the inbound track at different points, and a number of spurs ran over in a westerly direction into different coal yards and other manufacturing establishments along the line, and were used for the purpose of switching cars upon the premises of the several establishments. On the northwest corner of Ferry avenue and the railroad track, and about 25 feet westerly from the inbound track, there was a small house used as a car-checker’s office and a waiting-room for passengers. This point was known as the Lake Shore' junction, and was used as a passenger station for many years, for the purpose of taking-on and letting off passengers. All Lake Shore trains stopped at this point, and many of the trains of the D. & M. The outgoing trains would stop at this point so that the rear car would just pass the north side of Ferry avenue. It was the custom of passengers to enter and leave the outgoing Lake Shore train on the easterly side, from which all signals were given by the conductor to the party in charge of the engine.
    The plaintiff in this case had been in the employ of the defendant Detroit, Grand Haven &? Milwaukee Railway Company for a number of years, in different capacities, and for two years prior to the accident had been in charge of the two semaphores and the joint switch at Ferry avenue, working from 6 o’clock a. m. until 6 o’clock p. m., standard time. He was well acquainted with the rules of the company, and knew the custom and manner in which trains were operated by both companies at this point. He lived in the western part of the city, and after quitting work it was his custom to take the 6:30 Lake Shore train to the west side of the city. He testified that he had done this every evening for a period of two years, and during all that time it had been his custom, upon the approach of the Lake Shore train, to walk up the inbound track almost to a point opposite the north semaphore, and there take the first passenger car behind the engine, being the second-class coach. This train stopped at this station only long enough to take on and let off passengers, the stop being momentary, and, in order to be sure of getting onto the train, it was necessary to be at the proper point on the train’s arrival.
    On the 26th day of December, 1896, plaintiff quit work at 6 o’clock, went over to the car-checker’s office, and waited there until he saw the south semaphore go down. He looked at his watch. It was then 6:30 o’clock, and the Lake Shore train which he wished to take was then due. He went out of the car-checker’s office, walked about 20 feet towards the inbound track, looked southward down the tracks, and saw a headlight on the outgoing main line, but said he did not see any engine or train south on the incoming main line. He then walked over onto the westerly or inbound track, and started towards the north semaphore, the point where he usually entered the Lake Shore train. While he was walking along this track, and had proceeded a distance of about 100 feet up the track, a switch engine came up northerly-on the inbound track, and, without blowing any whistle or ringing any bell, ran over the plaintiff, severing both legs.
    There was about three or four inches of snow on the ground, the atmosphere was practically clear, there was an electric light at the intersection of Ferry avenue and the railroad crossing, and the headlight of the engine which struck him was lighted. The engine which ran over the plaintiff was engine No. 106, owned and operated by the Detroit, Grand Haven & Milwaukee Railway Company. This engine had been at work on the siding to the west of the inbound track, and south of the telegraph station, for 10 or 13 hours during that day. At some point south of the telegraph office this engine ran in upon the inbound track, and started northward towards the D. & M. junction, which is beyond the Lake Shore junction. This engine came out the inbound track at a speed, according to one of the witnesses, of about 13 miles an hour, and, according to others, at a speed of about 6 miles. The headlight which the plaintiff saw in looking down the track was the h&adlight, not of the Lake Shore train, but of a wild engine, which was coming out the outbound track, and it was for this engine that the semaphore was dropped, giving this engine the right to proceed on the outbound track. Plaintiff testified that he walked out the inbound track, relying upon the rules of the company, and his knowledge of their custom in the operation of trains at that point.
    Rule 84a reads as follows:
    . “When double track is used, all trains will take the right-hand track, except as provided in special rules or orders, or when necessary to cross over to do work at stations when protected as provided in rule 100.”

      Rule 18 reads as follows:
    “Trains or switch engines must use the right-hand track between the Lake Shore junction and double-track switch at Jeffers on-avenue bridge, according to the direction in which they are running, and must keep careful lookout for switch engines, and approach cross-over switches under perfect control.”
    Rule 14 reads as follows:
    “The track between the Lake Shore junction and Milwaukee junction will be considered yard limits for irregular trains and yard engines, and between Lake Shore junction and Leían d street yard limits for yard engines only; but they must keep entirely clear of all time-card trains, and run very cautiously between those points, expecting to find main line occupied.”
    This rule controlled all switching crews.
    Rule 2 provides :
    “Enginemen approaching Lake Shore junction from Detroit will come to a full stop not less than 100 yards short of the double-track switch, and approaching Lake Shore junction coming towards Detroit will come to.a full stop not less than .100 yards short of the joint switch, and remain until semaphore has been lowered and switch properly set, and signaled by switch tender to proceed, and will not pass the switches at a rate of speed exceeding four miles per hour. It will not be necessary to lower semaphores on both sides of the switches, — only the one nearest to the train given the right to proceed. The other semaphore must be kept up to stop trains coming in the opposite direction.”
    Rule 114& reads as follows:
    “When within the limits of the various yards, all trains must be run with great care, and under the control of the engineman, so that he may at all times be able to stop within the range of his vision. * * * ”
    The court directed a verdict for the defendants, holding, first, that the plaintiff was guilty of contributory negligence in being upon the track, and, secondly, that there was no gross negligence shown on the part of the defendant companies.

      Flowers & Moloney, for appellant.

      Wells, Angelí, Boynton & McMillan, for appellee Lake Shore & M. S. Ry. Co.

      E. W. Meddaugh (Geer & Williams, of counsel), for appellee Detroit, G. H. & M. Ry. Co.
   Grant, J.

(after stating the facts). There is no evidence to show any liability on the part of the defendant the Lake Shore & Michigan Southern Railway Company. It had provided a station room and platform for those who had occasion to depart from and to enter its trains at Ferry avenue. In doing this it had done its full duty. Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914); Michigan Cent. R. Co. v. Coleman, 28 Mich. 452. The rear car stopped just opposite this platform. It extended no invitation to plaintiff or any one else to walk along the other track, or to use it as a platform for plaintiff or other passengers who desired to take its train. If it was necessary to walk to the front of the train instead of taking the rear car (there is no evidence to show such necessity), there was ample space between the two tracks, level and smooth, which the plaintiff might have taken.' At the point where he was struck, the distance between the two tracks was 20 feet.' Neither is there any evidence to show such a well-known custom on the part of. passengers to walk down the other track so as to enter the smoking car, — the forward car of the train, — a distance of about 200 feet, as would bind the defendants.

Switch engines were liable to come in and go out over these tracks at any time. They were not limited to one track coming in and to the other going out. All they were required to do by rule 14 was to keep entirely clear of all time-card trains, and run cautiously between the points mentioned in the rule, as they might expect to find . the main line occupied. Plaintiff is chargeable with notice that in this busy place these engines were liable to occupy . the tracks at any time. He entered upon this track supposing, as a matter of course, that the headlight he saw was the headlight of the engine of the train which would take the Lake Shore track. Evidently, had he looked when upon the track on which he was injured, or within 10 feet of it, he would have observed that the engine was upon the track. Furthermore, the switch lights were not turned for the train to go upon the Lake Shore. Upon this point he testified:

“I did not observe whether the switches, which were within a few feet of me, were set so the train could get on the Lake Shore. I was off duty. I did not bother my head about it. That was left for the night man to look after.”

Two engines were, in fact, coming on defendants’ tracks. He did not look at any time after he had reached a distance of 20 feet from the inbound track.. He testified that, when within 20 feet, he could look about a half mile down the track. He further testified:

“I was about 20 feet from the office when I looked to the south and saw the headlight. I had gone about 20 feet towards the tracks when I looked to the south and saw the headlight. I saw them coming that way, and I turned myself and went up the track. At no point after that did I look to the south to see if any train was coming.”

That he knew of the extent of the switching appears from his own testimony as follows:

“On account of all this switching and moving of trains, engines may be passing there at any moment. They were liable to be switching up there at any time. In the winter time, especially, it is a busy place.”

He further testified:

“I walked up the incoming main line because there was snow shoveled away on the side of the track more than anything else, and to keep out of the snow.”

Plaintiff relied solely upon the fact that the semaphore was dropped, and shut his eyes to all other evidences of the facts surrounding him, and of which he might readily have availed himself, showing that no train was coming upon the Lake Shore track, but that a train was coming on the track over which he was walking. What right had he to assume that the engineer and fireman would look out for him any more than that he would look out for himself ? Evidently the engineer and fireman were not at the moment looking. If this was negligence on the part of the engineer and fireman, was it not equally negligence for him to pay no attention to his surroundings ? What right had he to rely upon the performance of duty by his fellow-servants, — if he was at that time in the employ of the company,— while he himself was neglecting to perform his own duty ? Had they been looking, they would have had a right to suppose that he would step off the track in time to avoid injury. He does not testify that he did not hear the trains. On the contrary it is quite evident that he did hear them, and knew that one at least was coming behind him. It is difficult to conceive of a case of greater contributory negligence. Plaintiff went deliberately from a place of safety into a place of danger. Kansas City, etc., R. Co. v. Cook, 13 C. C. A. 364 (66 Fed. 115, 28 L. R. A. 181); Wabash R. Co. v. Skiles, 64 Ohio St. 458 (60 N. E. 576); Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271); Michigan Cent. R. Co. v. Campau, 35 Mich. 468; Bresnahan v. Railroad Co., 49 Mich. 410 (13 N. W. 797); 3 Elliott, R. R. § 1250.

The judgment is affirmed.

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


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    LASIER v. APPLETON LAND & IRON CO.
    1. Mining Lease — Royalty—Fraud.
    Where the president of a mining company, which had a lease of complainants’ lands authorizing it to mine iron on a royalty of six cents a ton, induced complainants to sign writings reducing the royalty to four cents a ton, upon representations that it was necessary to the consummation of any arrangement whereby the mines could be worked, and with the understanding that a lease would be made with another company at a royalty of four cents, and afterwards a lease was made with a company to mine the lands upon a royalty of six cents a ton, the arrangement to reduce the royalty will be set aside as fraudulent, and a decree entered that the lessee pay complainants six cents a ton.
    2. Corporations — Liability eor Acts of Officers.
    A corporation must respond for the fraudulent representations of its president when making contracts in its behalf.
    Appeal from Dickinson; Stone, J.
    Submitted April 22, 1902.
    (Docket No. 100.)
    Decided May 19, 1902.
    Bill by Martha Gr. Lasier and others against the Appleton Land & Iron Company and the American Mining Company to set aside a royalty agreement on the ground of fraud, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Walker & Spalding, for complainants.

      John O’Hara (Ball & Ball, of counsel), for defendant Appleton Land & Iron Co.
   Hooker, C. J.

The complainants were owners in fee as tenants in common with the Appleton Land & Iron Company, one of the defendants, of the lands described in ’ their bill, and executed to said company a mining lease of their interest, whereby the company was authorized to mine iron upon the premises on a royalty of six cents a ton. The company made a large investment, but the enterprise was not successful, and it began negotiations with the Illinois Steel Company with a view to selling its plant and turning over to it the right to conduct mining operations upon the lands. At this time Mr. Hyde, the president of the Appleton Company, sought and obtained from these complainants a reduction of the royalty to four cents. This was evidenced by writings signed by the respective complainants and forwarded to him. He was unable to conclude a deal with the Illinois Steel Company, but subsequently made an arrangement with the American Mining Company, whereby the Appleton Company sold its plant to said company, which succeeded to the lessee’s interest in a portion of the leased property through assignments. This company was to pay a royalty at the rate of six cents a ton. It began operations, and made its first payment of royalty by sending checks to the complainants at the rate of six cents. Afterwards it wrote them that it had been laboring under a misapprehension in regard to the royalty, and asked the return of the extra two cents a ton over and above the four cents which they had agreed with Hyde to accept. Soon after, this bill was filed for an account between the several parties, and to set aside the several writings by which the complainants agreed to accept four cents a ton, and to require payment to them at the rate of two cents a ton for all iron theretofore mined, and for a decree that the American Mining Company should thereafter make payments of royalty at the rate of six cents a ton to them. The bill alleged that the Appleton Land & Iron Company, through its agent, Hyde, had fraudulently induced the complainants to make such agreements reducing the rate of royalty by the representation that he could not dispose of the lease at a royalty of six cents. The proofs show that after the execution of the first writings, whereby the royalty was to be reduced, Mr. Hyde called upon the complainants, and requested them to make a second writing, upon the representation that the first writing had not been acknowledged, which was necessary. These writings were conditioned upon a prospective arrangement with the Illinois Steel Company, the Cundy Mining Company, or the American Steel & Wire Company, or their successors or assigns. Upon the hearing the bill was dismissed.

We find the case to be one largely of fact, and from the evidence we are satisfied that the complainants were induced to sign these writings upon the representation that it was necessary to the consummation of any arrangement whereby the mines could be worked, and with the understanding and expectation that the royalties to be paid thereafter by the prospective successor of the Appleton Company would be four cents, and not six cents. It appears that Hyde succeeded in obtaining a royalty of six cents, and that his company received a profit of two cents a ton. We find nothing in the case to indicate that he ever offered an assignment of his lease at less than six cents, but, whether he did or not, we think his contract was fraudulent as to these complainants, and that they should be entitled to receive from the Appleton Company their proportionate share of the amount heretofore received by it, and that hereafter the American Mining Company should be required to pay their proportionate share of the royalties paid by it to the complainants.

We consider it unnecessary to discuss at length the legal questions raised by the defendants’ counsel. We think the Appleton Company is bound to respond for the fraud of its president, Mr. Hyde, who acted as' its agent in the transaction; that it cannot escape its responsibility upon the ground that the contract between itself and the American Mining Company cannot be rescinded; and we see no difficulty in requiring the American Mining Company to pay the royalty which it has agreed to pay to the persons who are justly entitled to it.

The decree of the circuit court is reversed, and a decree will be entered here in conformity to the prayer of the complainants’ bill, and the cause remanded for such further proceedings as shall be necessary to determine the state of the account between the parties, and for the enforcement of the decree. The complainants will recover costs of both courts.

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


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    McLEAN v PRUDENTIAL INSURANCE CO.
    Justices oe the Peace —Jurisdiction —Foreign Insurance Companies.
    3 Comp. Laws, § 10442, gives justices of the peace jurisdiction against foreign insurance companies where the cause of action accrues within this State.
    Error to Wayne; Rohnert and Frazer, JJ.
    Submitted April 22, 1902.
    (Docket No. 113.)
    Decided May 19, 1902.

      Assumpsit by John A. McLean against the Prudential Insurance Company of America for commissions. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      George H. Prentis, for appellant.

      Walters, Humphrey & Walters, for appellee.
   Hooker, C. J.

The plaintiff sued the defendant, a life-insurance company, organized'and doing business under the laws of the State of New Jersey, before a justice of the peace. The process was a summons. A judgment being rendered in favor of the plaintiff, the defendant took a special appeal to the circuit, where plaintiff again recovered, and defendant brought error. The record does not show that process was not properly served. The question raised by the special appeal was whether, under the law of this State, a justice of the peace has jurisdiction to entertain a suit against a foreign insurance company.

In 1873 the legislature passed an act requiring foreign insurance companies who wished to do business in this State to consent to service of process upon the insurance commissioner. This was not a practice altogether new. 3 Comp. Laws, §§ 10015 to 10021, inclusive. This provision is now in force. In the case of Hartford Fire-Ins. Co. v. Owen, 30 Mich. 441, the court expressed doubts whether it had ever been intended to confer jurisdiction upon justices of the peace in cases against foreign insurance companies, except in attachment or garnishment, and said that, whatever may have been the intent, the statute of 1873 placed it beyond doubt that no jurisdiction was afterwards possessed by justices. Act No. 155, Laws 1873. In 1881 an act was passed providing for the commencement of actions against nonresident corporations by serving process upon any agent, etc. For this act, as originally passed, see 2 How. Stat. § 8145. In Reath v. Telegraph Co., 89 Mich. 22 (50 N. W. 817), it was held that this statute applied only to proceedings in the circuit court. Subsequently this statute was amended in a way which shows an intent to give justices of the peace jurisdiction as to foreign corporations. See 3 Comp. Laws, § 10442. It is now claimed that it was not intended to apply’to foreign insurance companies, and that they are still governed by the law of 1873, as construed in the case of Hartford Fire-Ins. Co. v. Owen, supra. The learned circuit judge held otherwise upon the hearing of the special appeal.

We should have no hesitation upon the subject but for a possible inference deducible from the language used in Hartford Fire-Ins. Co. v. Owen, supra, viz.:

“And the fact that suits are commenced before justices by process which must be returned in twelve days from date, and may be in two days, and need never be served more than six days before return, is very significant. In a multitude of cases a proceeding against a foreign corporation in this summary way would lead to a denial of justice, and we ought not to impute to the legislature an intent to produce such oppressive consequences, if we can avoid it. These and some other similar reasons have inclined us to believe that the statute was never designed to apply to any but courts of record. Whatever may have been the case before, we think the statute' of 1873 has placed it beyond doubt that no jurisdiction is now possessed by justices. By that statute it is provided that in all cases service may be made by delivering the proper papers to the commissioner of insurance, who is required to send duplicates to the company where it is located, or to its agents within the State, as may have been determined by the company. Act No. 155, Laws 1873. There is no exception to this. It applies to all cases of suits against them. It is impossible to apply such a provision to any court proceeding on summary process. It would allow no time to prepare for defense, or even to appear. Whether this statute entirely supersedes the former law on the subject, or whether it is merely additional, we need not now consider. But it applies to all suits brought after its passage, and makes the service on the commissioner permissible, if not imperative.”

But this is not necessarily conclusive. The amendment to the act of 1881 was clearly intended to give justices of the peace jurisdiction in cases against foreign corporations generally. The method of service was pointed out, and we see.no obstacles to a suit against a foreign insurance company under this law which do not exist in the case of any other foreign corporation. The act is in terms broad enough to include this, and we are of the opinion that the act of 1873 is not necessarily inconsistent with such a construction. Other questions raised need not be discussed, further than to say that we find no error in them.

The judgment is affirmed.

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


author: Per Curiam.

text:
    LOOMIS v. CITY OF JACKSON.
    1. Taxation — Abstract Books.
    Books of abstracts of title to land are not subject to taxation.
    3. Same.
    A statute making abstract books subject to levy and sale on execution does not make them subject to taxation.
    Case made from Jackson; Peck, J.
    Submitted April 22, 1902.

    (Docket No. 81.)
    Decided May 19, 1902.

      Assumpsit by Peter B. Loomis against the city of Jackson to recover taxes paid under protest. There was a judgment for plaintiff, and defendant assigns error.
    Affirmed.

      John W. Miner (Grove H. Wolcott, of counsel), for appellant.

      Pringle & Plewett, for appellee.
   Per Curiam.

This suit was brought to recover taxes paid under protest. The sole question is, Are abstract books, used in furnishing abstracts of title to land, subject to assessment for taxation ? The court held that they were not, and directed a verdict for plaintiff. The holding is correct. The case is ruled against the defendant by Perry v. City of Big Rapids, 67 Mich. 146 (34 N. W. 530, 11 Am. St. Rep. 570).

It was held in Dart v. Woodhouse (decided in 1879), 40 Mich. 399 (29 Am. Rep. 544), that abstract books were not subject to levy and sale upon execution. In 1899 the legislature passed an act making these books liable to seizure and sale upon execution in like manner as other personal property. Act No. 197, Pub. Acts 1899.

It is to be presumed that the legislature was cognizant of both of the above decisions. They chose to enact a law making such property subject to levy and sale upon execution, but have not yet chosen to make it subject to taxation. Making it subject to levy upon execution does not render it subject to taxation; so making it subject to taxation would not render it subject to sale upon execution.

Judgment is affirmed.

Long, J., did not sit.


text:
    TAFT v. PULLEN.
    Benefit Societies — Assessment by Receiver — Evidence.
    Where, in an action by the receiver of an insolvent mutual benefit society to collect an assessment made by the receiver against the defendant, no evidence is introduced to show the character of the suit in which the receiver was'appointed, or that the court acquired jurisdiction of the company or the defendant, or that defendant was a member of the society, or that any notice of the assessment had been served on him, a verdict should be directed for defendant.
    Error to Berrien; Coolidge, J.
    Submitted April 33, 1903.
    (Docket No. 105.)
    Decided May 19, 1902.

      Assumpsit by Harvey C. Taft, receiver of the Masonic Life Association, against George Pullen, to recover an assessment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Rood & Hindman, for appellant.

      N. A. Hamilton (George M. Valentine, of counsel), for appellee,
   Hooker, C. J.

This was an action brought to collect on an assessment made by order of the court by a receiver against a member of an insolvent mutual benefit society. The learned circuit judge directed a verdict for the defendant, and the plaintiff has brought error. All of the testimony introduced upon the trial is incorporated in the bill of exceptions, and the only question raised is whether it was sufficient to make a prima facie case. No testimony was introduced on the part of the defendant.

The substance of the testimony was as follows: The plaintiff testified that he was appointed and acted as receiver for the company, and in obedience to an order of the circuit court in chancery he made the assessment in question, which he introduced in evidence. A paper purporting to be a certified copy of the order of the circuit court in chancery was also introduced. There was no evidence showing that the court ever acquired jurisdiction of the defendant or the company, nor were the pleadings introduced by which the character of the suit in which the order purports to have been made can be determined. There was no evidence offered, aside from that contained in the order, that the defendant was a member of the company, or that any notice of the assessment had ever been served upon him. Under these circumstances the court could not have done otherwise than direct a verdict for the defendant. Kenyon v. Baker, 16 Mich. 373 (97 Am. Dec. 158); Goodrich v. Burdick, 26 Mich. 40; People v. Mersereau, 74 Mich. 687 (42 N. W. 153).

The judgment is affirmed.

Moore and Grant, JJ., concurred. Long and Montgomery, jj., did not sit.


author: Montgomery, J.

text:
    KNOWLSON v. PIEHL.
    1. Contracts — "Waiver of Time of Payments.
    Where a party to a contract fails to furnish money at the times required, and the other party afterwards asks for and receives money, the failure to comply strictly with the terms of the
    ■ contract as to time of payments is waived.
    3. Same — Breach—Directing Verdict.
    Plaintiff agreed to furnish defendant with certain materials, and 81,400, upon written statements showing that such money was required to pay for labor and material in constructing a limekiln on defendant’s land. Defendant agreed to sell to plaintiff the entire output of the limekiln for one year at a certain price per barrel, and allow five cents a barrel to apply on advancements. If plaintiff failed to perform his part, defendant could terminate the contract by paying the sums advanced; if defendant failed to perform, plaintiff could demand repayment after 90 days. Plaintiff furnished all materials required, and money at different times amounting to 81,300, but intimated on two or three occasions that he was not prepared to furnish all the money. Defendant 'after--wards asked for and received other advances, but did not furnish the written statements. When the kiln was about complete, defendant asked for a statement of the account, which was furnished, and he shortly afterwards sold out without making provision for the payment of plaintiff. Held, in an action to recover damages for breach of contract, that a verdict was properly directed for plaintiff.
    3. Same — Measure of Damages.
    The provision in such contract relating to defendant’s failure to perform was intended to provide that the indebtedness should become due at once in case of his failure, but not to furnish a measure of the further damages the plaintiff would suffer.
    4. Same.
    A provision in such contract that “the output of the kiln shall be at least, outside of the months of November, December, January, and February, 30,000 barrels each year,” does not exclude the output of these months from defendant’s obligation to furnish the entire output for a year, and a recovery of the profit on 34,000 barrels, the amount plaintiff was compelled to purchase elsewhere, is not excessive.

      Error to Emmet; Shepherd, J.
    Submitted April 22, 1902.
    (Docket No. 99.)
    Decided May 19, 1902.

      Assumpsit by Abram B. Knowlson against David Piehl for the-breach of a contract to furnish lime. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      M. F. Guinon and Halstead & Halstead, for appellant.

      C. J. Pailthorp, for appellee.
   Montgomery, J.

This is an action to recover damages for the breach of a contract. Judgment was rendered for the plaintiff under the direction of the circuit judge. Defendant brings error.

The defendant had a contract right in land suitable for the manufacture of lime. Plaintiff had, prior to November 25, 1899, advanced to the defendant $800, to aid him in constructing a limekiln. On the date last mentioned a further contract was made between the parties, which provided, in effect, that defendant should construct and finish by January 1, 1900, a suitable and proper limekiln, with the capacity of an output of 125 barrels of merchantable lime per day; that he should sell to the plaintiff, at the kiln, the entire output of said limekiln for one year from January 1, 1900, at the price of 46 cents per barrel, and at 30 cents per barrel in bulk; that the advancements so made by the plaintiff should be repaid by deducting 5 cents on each barrel of lime purchased. The plaintiff, on his part, undertook to furnish at least $1,400 in cash, in amounts as required by defendant, upon the defendant furnishing written statements showing that such money was to pay for labor and material entering into the construction of said kiln. He also agreed to furnish certain brick and fire clay. The contract contained a further clause as follows:

“It is further covenanted that, if first party [plaintiff} fails to perforin his part of this contract, second party can immediately terminate the same, paying to first party the sum so advanced by him, with -interest, and paying for the said material and transportation; and if second party [defendant] fails to perform his part of the contract, first party can demand such payment within ninety days, and that thereafter the said indebtedness shall be due and payable.”

It is contended by the defendant that the circuit judge erred in holding that the plaintiff had fully performed his contract. The undisputed testimony shows that the plaintiff-furnished $1,300 in cash, and such materials as were required, making a total of $2,019.22. It appears that the plaintiff, on two or three occasions, wrote defendant letters which indicate that he was not prepared to send all the money -required. But, after these letters were written, the defendant, it would appear, asked for and received other moneys of the plaintiff, and it must be assumed that the failures to comply strictly with the contract as to the * time of payment were waived. Furthermore, it does not appear that defendant ever furnished to plaintiff the statements required by the terms of the contract, showing that the money was intended to pay for labor and material entering into the construction of the kiln, or for wood, and the cutting thereof, or other purposes necessary in the construction and operation of the kiln. Indeed, this language would import that the $1,400 would not all be required for the construction of the kiln, but that some portion of it, at least, would be reserved for use in the operation, as, for instance, sufficient to furnish a. supply of wood, or for other purposes necessary in the operation. That defendant did not understand that the contract had been broken is apparent from his letter of January 24th, .in which he writes the plaintiff, not asking for more money, but saying:

“ I am very near ready to start my kiln, and would like to have you, at your earliest convenience, send me a full statement of money and all material that I have got from you up to date, so I may know just how we stand up to date. It will take me about a week or two to get ready. I have got to get a few logs in yet, to complete my shed floor, and a few castings for my car. ”

In response to this the itemized statement was sent as requested, but on February 3d defendant wrote plaintiff that he had sold out his property, and it transpired that he had sold the property without making provision for fulfilling his contract with plaintiff. We think the circuit judge was right in directing a verdict for plaintiff.

The remaining questions relate to the question of damages. It is contended by defendant that the contract furnishes its own measure of damages, which is the repayment, with interest, of the amount advanced. Reliance is had upon a portion of the language above quoted, namely:

‘ ‘ If second party fails to perform his part of the contract, first party can demand such payment within ninety days, and thereafter the said indebtedness shall be due and payable.”

We do not think this provision was intended to provide a measure of damages in case of a breach by the defendant. Under the terms of the contract, the indebtedness to plaintiff would not grow due except from day to day, and until the production of the kiln was sufficient to repay the indebtedness at five cepts per barrel. The evident purpose of this provision was to make the indebtedness incurred payable instanter in case the defendant failed to perform his contract. It has no bearing upon the question of the further damages which the plaintiff would suffer by a breach of the contract.

It is further contended that the judgment was excessive, in any event, for the reason that the contract contained an agreement that “the output of said kiln shall be at least, outside of the months of November, December, January, and February, twenty thousand barrels each year,” and that the effect of this was to exclude the output of November, December, January, and February from the defendant’s obligation to furnish the output of the kiln to plaintiff. We do not so construe the language. By another portion of the contract defendant was required to furnish the entire output of the kiln to the plaintiff at the price agreed upon. By this provision he guarantees that the production shall be 20,000 barrels each year, exclusive of the production of these months, and whatever the production in these months might be the plaintiff would be entitled to receive under his contract at the price agreed upon. The evidence does not show conclusively how much lime would be produced during these months, but it does show that the production would be at the rate of 125 barrels per day; and the circuit judge limited the recovery to the profit on 24,000 barrels, being the amount which plaintiff was compelled to purchase elsewhere. We think defendant cannot complain as to the amount.

The judgment will be affirmed, with costs.

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


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    DIMMOCK v. COLE. GOODWIN v. SAME. SMITH v. SAME.
    1. Attachment — Dissolution—Evidence.
    An order dissolving an attachment will not be reversed because 'of the admission of irrelevant testimony, where the circuit judge certifies that such testimony was not considered by him in reaching a conclusion.
    2. Same — Evidence of Plaintiff’s Claim.
    On the hearing of a petition to dissolve an attachment, evidence by the defendant that he did not owe the plaintiff anything, or did not know that he owed the plaintiff anything, is admissible for the purpose of showing a want of bad faith in the manner he dealt with his property.

      8. Same — Findings of Fact.
    Findings of fact by the circuit judge in proceedings to dissolve an attachment are conclusive where there is evidence to support them.
    4. Same.
    Where there is evidence tending to show that defendant did not know he was indebted to the plaintiff, an order dissolving an attachment will not be reversed, although the testimony, if plaintiff’s claim had been undisputed, would have conclusively shown an intent to defraud creditors.
    5. Evidence — Exclusion of Cumulative Testimony.
    Where the undisputed evidence shows a certain fact, the exclusion of additional evidence to prove the same fact is not prejudicial error.

      Certiorari to Bay; Shepard, J.
    Submitted April 23, 1902.
    (Docket Nos. 45, 122, 123).
    Decided May 19, 1902.
    Attachment proceedings by Edwin S. Dimmock, Don A. Goodwin, and Edward A. Smith against Fred P. Cole. From orders dissolving the attachments, plaintiffs bring certiorari.

    Affirmed.

      U. E. Lor anger (S. P. Flynn, of counsel), for appellants.

      M. L. Courtright (T. A. E. & J. C. Weadoch, of counsel), for appellee.
   Montgomery, J.

Certiorari to review an order of the circuit judge dissolving an attachment. Three questions are raised: First, whether immaterial evidence was admitted; second, whether the testimony on the hearing was such that the finding of the circuit judge that the evidence did not support the affidavit should be reversed; and, third, whether material evidence was excluded.

The first question may be disposed of by saying that, although testimony was received upon the question of the merits of plaintiff’s claim, the circuit judge states in his findings that, in the view he took of the case, such testimony was not material, and was not considered by him in reaching a conclusion; so that, if there was any error in the admission of this testimony, it was cured, as this testimony was not considered by the court for any purpose foreign to the issue.

We think the testimony was competent, at least for the purpose of showing want of bad faith on the part of the defendant in dealing with the property in the manner in which he did. If he showed to the satisfaction of the court that he did not owe the plaintiff anything, or did not believe that he owed the plaintiff anything, this would have weight as bearing upon the question of whether he had disposed of his property with intent to defraud the plaintiff. See Hyde v. Nelson, 11 Mich. 353.

Whether, upon the trial of a petition to dissolve an attachment, the question of the defendant’s indebtedness may be tried and determined, is not altogether clear from the authorities. Mr. Stevens, in his work on Michigan Practice (volume 1, § 61e), takes the ground that, if the indebtedness be denied, it would seem to cast upon the plaintiff the burden of producing at least prima facie evidence of it; and it would follow from this, logically, that at the hearing of the dissolution proceedings the defendant would have the right to controvert the existence of any indebtedness, and that this would become a question for the determination of the commissioner, or of the circuit judge, on the hearing in dissolution proceedings. He bases this conclusion upon the peculiar language of our statute. We do not, however, find it necessary to go this length in the present case, or to determine whether the authorities from other States, which hold it not competent to enter upon a trial of the question of indebtedness, are or are not controlling under our statute. In the case of Hyde v. Nelson, supra, it was held proper for the defendant to testify that he did not know he was owing the plaintiff, as bearing upon his alleged fraudulent intent.

It appears that on April 1st — about 30 days before the contracting of any of his alleged indebtedness to plaintiff —defendant had lumber in his lumber yard worth between $8,000 and $10,000; that on September 27th — the date of the hearing on the petition to dissolve the attachment — he had but $2,500 to $3,000 worth. He testifies that the remainder had been disposed of in the ordinary course of business, in small lots; that he had not purchased any new stock; and that he had refrained from depositing the proceeds in the bank, to keep it from being garnished. It also appears that the only other property he had in Bay county was an incumbered house and lot. Defendant’s counsel state that there is no evidence that he did not have property elsewhere; but defendant’s reply, ‘ ‘ I have got this money,” in answer to the question, “What else have you got?” fairly construed, means that he had covered by his testimony all the property which he had.

It is apparent from the reading of this record that the testimony tended strongly to show that the defendant had converted this property into cash, and retained the money in his possession, and withheld it from deposit iri banks, with the idea of preventing its being reached by garnishment. If plaintiff’s claim were undisputed, it might be difficult to say-that this evidence could be-construed any other way than as conclusively showing an intent to defraud creditors, within the rule laid down in McBryan v. Trowbridge, 125 Mich. 542 (84 N. W. 1084). But, as before stated, the question of defendant’s intent, as held by this court in Hyde v. Nelson, involves the inquiry as to whether he actually understood that he owed añy indebtedness. So, if he did not, it cannot be said that he made any disposition of his property with intent to defraud creditors. We cannot say, therefore, that there was no evidence which justified the finding of the circuit judge; and, this being so, it is not our province to exercise our independent judgment upon the question of fact. This has been often decided by this court. See Sheldon v. Stewart, 43 Mich. 576 (5 N. W. 1068); Carver v. Chapell, 70 Mich. 51 (37 N. W. 880); Brown v. Blanchard, 39 Mich. 790; Rowe v. Kellogg, 54 Mich. 206 (19 N. W. 957).

It is also contended that the circuit judge erred in excluding testimony as to defendant’s business transactions prior to April 1st. None of the alleged indebtedness was contracted before April 26th. It is admitted that defendant pursued a different course of dealing, as to depositing the proceeds of sales, after his dispute arose with plaintiff Than before. What the plaintiff sought to show by the cashier of the bank was the condition of defendant’s account in the bank for a considerable period prior to April. His account from April down to the time of this proceeding was shown, and it disclosed the withdrawal of ■'deposits, as stated. Plaintiff’s counsel stated:

“We offer to show that, during the period last year from the 1st of April to the 1st of October, — which is the busy season for the lumber business, — large amounts were deposited and large balances credited to Mr. Cole at the same bank. We desire to show the year before, because, since early in the spring of this year, on account of the trouble arising over these different suits, he has closed out, instead of branching out in, his business.”

We think this testimony might well have been received, but we are unable to see how the failure to receive it worked prejudice to the plaintiff; for the undisputed testimony showed precisely what plaintiff was aiming to establish by his testimony, namely, that defendant had reduced his stock, and placed this money where it could not be reached by garnishee process. Whether this was done fraudulently or not might depend upon other considerations. The circuit judge found that it was not fraudulent ; but the facts' could not be made any clearer by additional testimony along the same lines. We think no prejudicial error was committed in excluding the testimony offered.

It follows that the order dissolving the attachment must be affirmed.

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


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    SCHAUB v. WELDED-BARREL CO.
    1. Equity Practice — Demurrer—Judgment Creditor’s Bill— Corporations.
    Where a stockholder of a corporation demurs to a judgment creditor’s bill, filed against the corporation and certain stockholders to reach unpaid subscriptions, on the ground that the bill cannot be maintained against him in any event, he cannot, in support of the demurrer, assign as cause ore tenus that it was incompetent to bring him in by amendment after a receiver had been appointed. Chancery Rule No. 9a.
    2. Same — Parties.
    A stockholder who has not paid his subscription to the capital stock may be joined as a defendant in a judgment creditor’s bill against the corporation.
    3. Same — Amendments.
    Such stockholder may be made a party defendant by an amendment to the original bill after a receiver has been appointed.
    Appeal from Wayne; Brooke, «J.
    Submitted April 25, 1902.

    (Docket No. 25.)
    Decided May 19, 1902.
    Judgment creditor’s bill by Julius W. Schaub against the Welded-Barrel Company, Charles L. Coffin, and Cyrus E. Lothrop. From an order overruling the separate demurrers of defendants Coffin and Lothrop, they appeal.
    Affirmed.

      Wells, Angelí, Boynton & McMillan, for complainant.

      Edwin F. Gonely and Orla B. Taylor, for appellants.
   Montgomery, J.

In September, 1897, the complainant entered into a contract with the Arc Welding Company and the Welded-Barrel Company, by the terms of which said companies agreed to employ the complainant for a period of three years as general superintendent. In January, 1898, the complainant was discharged. He brought an action against the defendant company for his damages, and recovered a judgment on April 21, 1900, in the sum of $5,000. The defendant appealed to the Supreme Court, where the judgment, on January 29, 1901, was affirmed. Schaub v. Welded-Barrel Co., 125 Mich. 591 (84 N. W. 1095). An execution taken out on this judgment having been, returned wholly unsatisfied, the original bill in this cause, containing the ordinary averments and prayer for relief of a judgment creditor’s bill, was filed. Upon the bill a receiver was appointed, and the defendant company was ordered to turn over its assets to the receiver, under the direction of a circuit court commissioner.

After the appointment of the receiver, complainant amended his bill, making Charles L. Coffin and Cyrus E. Lothrop parties defendant, as stockholders in the defendant company. Warren L. Beckwith, who also subscribed to the capital stock of the company, was not made a party defendant, for the reason that he was a nonresident of the State, and not within the jurisdiction of the court. The '.amended bill sets up that the defendant company was organized to take over the business of a certain other corporation, known as the Welded-Steel Barrel Company; that in fact the arrangement by which they were to take over the business of this corporation fell through; and that no assets were in fact paid in to the defendant company, although the defendants Coffin and Lothrop, together with Beckwith, subscribed capital stock. The bill prays, in addition to the prayer contained in the original bill, that said Coffin and Lothrop may be directed to pay over to the receiver theretofore appointed in the case, or to such receiver as thereafter might be appointed by the court, the amounts due from them, and each of them, on account of their unpaid subscriptions to said capital stock, in amounts sufficient to meet the claims of complainant and such other creditors as might be entitled to join with the complainant.

The defendant the Welded-Barrel Company has entered no appearance in the case. The defendants Coffin and Lothrop entered separate demurrers as follows:

“1. That the complainant is not entitled to maintain a bill of complaint against this defendant to recover a subscription to the capital stock of said Welded-Barrel Company, even if such subscription were in fact made.
“2. That said bill of complaint is exhibited against this defendant and other persons therein named as defendants thereto for distinct matters and causes, in several whereof, as appears by said bill of complaint, this defendant is not in any manner interested or concerned, and that said bill of complaint is altogether multifarious.”

These demurrers were overruled by the court below, and Coffin and Lothrop appeal.

It is urged in support of the demurrer that, whether the complainant had the right to join the two defendants, Coffin and Lothrop, in the original bill, or not, it was not competent to bring them in by amendment to the bill after the receiver had been appointed; that 'the proper proceeding would be for .the receiver himself to institute the proceeding against these defendants in the interests of all the creditors. It might be sufficient to say that, under Chancery Rule No. 9 a, these defendants are not in position to raise this question. This rule now requires that the demurrer shall state the special reasons, in matters of substance, in a general demurrer, as well as matters of form in a special demurrer. This rule practically renders obsolete the practice of assigning causes of demurrer ore tenus. The objection to this bill, as set out in the demurrer, was not as to the order of proceeding, but was to the effect that the complainant could not, in any case, maintain such a bill against the defendants.

But on the merits we think the learned circuit judge reached the correct conclusion. Under our statute (3 Comp. Laws, §§ 9760, 9769, 9773), it is proper to join stockholders in a proceeding of this nature. See Hulbert v. Detroit Cycle Co., 107 Mich. 81 (64 N. W. 950); Peninsular Sav. Bank v. Black Flag Stove-Polish Co., 105 Mich. 535 (63 N. W. 514).

-We also think it was proper to bring in these defendants by amendment to the original bill. In the case of Young v. Iron Co., 65 Mich. 111 (31 N. W. 814), it was directed by the court that additional holders of stock, who had not paid their subscriptions, should be made parties defendant to the suit.

The order overruling the demurrers will be affirmed, with costs of this court to complainant, and the cause remanded for further proceedings.-

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