author: Ostrander, J.

text:
    BOARD OF SUPERVISORS OF MACOMB COUNTY v. LOVEJOY.
    1. Trial — Reception op Evidence — Purpose op Introduction— Effect.
    Where, in an action against a former county treasurer for a balance which it is claimed he failed to turn over to his success- or, defendant’s ledger, containing records of disbursements, is placed in evidence by him, the fact that his counsel disclaim any intention of proving what disbursements were made does not prevent the consideration of the ledger for that purpose.

      2. Same — Instructions—Consideration of Evidence.
    The charge of the court is not subject to the objection that it did not allow the jury to consider the ledger as evidence of disbursements, the court having stated that the jury should consider whether any receipts showing disbursements by defendant had been lost which had not been entered on the ledger, because, if they had been so entered, evidence of them remained in the form of the ledger which had been admitted in evidence.
    3. Counties — Treasurer—Defalcation — State of Accounts— Receipts and Disbursements — Burden of Proof.
    In an action against a former treasurer for a balance which it was alleged he had failed to turn over to his successor, there was evidence that during defendant’s term of office certain settlements were had, after which evidence of receipts and disbursements which defendant claimed did not appear in his boohs of account was destroyed. Plaintiff board of supervisors claimed, and there was evidence, justifying a finding, that these settlements were erroneous and fraudulent, and did not include all the receipts. Plaintiff introduced all the evidence of disbursements it could procure. Held, that thereafter the burden was on defendant to prove further disbursements, if there were any.
    Error to Macomb; Law, J., presiding.
    Submitted January 10, 1906.
    (Docket No. 44.)
    Decided April 3, 1906.

      Assumpsit by the board of supervisors of Macomb county against Gil. R. Lovejoy, principal, and the American Bonding & Trust Company, surety, on a county treasurer’s bond. There was judgment for plaintiff, and defendant Lovejoy brings error.
    Affirmed.

      8. B. Spier and J. A. Weeks, for appellant.

      Frank G. Kuhn (Seth W. Knight and Osear O. Lungerhausen, of counsel), for appellee.
   Ostrander, J.

Defendant Lovejoy was for two terms county treasurer of Macomb county, having been elected in 1898 and again in 1900. The American Bonding <& Trust Company is surety upon his official bonds. The declaration counts specially upon both bonds and contains, also, the common counts in assumpsit. The breaches of the bonds alleged are failure on the part of the treasurer to account and failure to pay over to his successor moneys in his hands. Upon demand of defendants, a bill of the particulars of plaintiff’s demand was furnished, which fills 37 pages of the record, and which attempts to itemize only the money received by the treasurer. It concludes with the statement that plaintiff admits that the defendant Lovejoy, as county treasurer, disbursed the sum of $584,627.60, and turned over to his successor $2,200. Defendant Lovejoy moved the court for an order requiring a further bill of particulars to be furnished, stating in greater detail the moneys claimed to have been received by the treasurer and itemizing the disbursements. An order was made requiring plaintiff to specify with greater certainty certain moneys claimed to have been received, but the court declined to order specification of the moneys disbursed, stating as a reason that the law requires the treasurer to keep a complete set of books showing the receipts and disbursements of the office. Thereupon what was styled an amendment to the bill of particulars was furnished. The total of moneys claimed in the particulars to have been paid to the treasurer is $597,822.56. Defendant Lovejoy thereupon pleaded the general issue, with notice that he would show that at various dates stated, seven in number, he made settlements with plaintiff, at each of which there was a full accounting and settlement; that plaintiff took from him all his receipts and vouchers used in said several settlements and destroyed them; that there had been full accord and satisfaction between the parties. No witnesses were sworn on the part of the defendants, but, in the course of the cross-examinations of various of plaintiff’s witnesses, evidence, for the most part documentary, was introduced, tending to prove both the receipt and disbursement of money, no account of which appeared upon the ledger kept by defendant. A substantial judgment for plaintiff resulted.

The writ of error, which is sued out by defendant Love-joy alone, has brought here a printed record ^ of more than 400 pages, upon which record 117 errors are assigned. Before proceeding to a discussion of errors, attention is paid to an assertion, many times repeated in the briefs for. appellant, which, as an alleged or assumed fact, is the major premise in most of the propositions stated and discussed by counsel for appellant. In the statement of facts, it appears in this form:

On the trial, plaintiff’s testimony consists of showing Mr. Lovejoy’s receipts as county treasurer from all sources during his four years’ incumbency of the office.”

In other portions of the brief are to be found the following:

“In the case at bar, plaintiff’s counsel were content to prove the receipts, and introduced no evidence of the disbursements, evidently being under the impression that their duty ended with proof of receipts. * * *
“The plaintiff, in the bill of particulars filed, ‘ conceded that Mr. Lovejoy during the four years paid out the sum of $584,627.60.’ This concession was treated by both counsel for plaintiff and the court as evidence.”

It is undisputed that defendant Lovejoy kept in his office a ledger. This ledger shows that he disbursed, as treasurer, various sums of money. It was his official ledger. It and a cashbook and a book called the “sparrow ledger,” containing a single account, were the only books of account which he kept. The cashbook was not turned over to his successor, and was not produced at the trial. There was evidence warranting the jurj in finding that this cashbook was a record of county business, though kept primarily for the benefit or the intelligence of the treasurer. The ledger was put in' evidence by counsel for plaintiff to show cash received. Later, it appears :

“ Counsel for defendant Lovejoy offer in evidence the whole of the so-called Lovejoy ledger, Exhibit 9.
The Court: It may be received.”

This occurred during the cross-examination of Love* joy’s successor in office. This was the book used in the various settlements with the board of supervisors. It is true that, upon various occasions during the trial, counsel for defendants disclaimed, and do now disclaim, any attempt to give evidence touching disbursements made by their client, and asserted that evidence offered by them which tended to prove disbursements was offered only to show the manner in which accounts were kept or settlements made or to prove that the ledger did not, in fact, show all receipts and disbursements of the office. This did not prevent the book and the other documents from being used, for all proper purposes, as evidence. The court and counsel for plaintiff used them as evidence of disbursements. Counsel for defendant do not challenge any entry appearing in the ledger showing disbursements; their client has had the benefit of disbursements therein shown. It is also stated in the brief for appellant that no computation of the sum total of the disbursements shown by the ledger was offered. Whether this is so or not, the total was stated in the court below, went to make up the figures which were submitted by the court to the jury, and it was not at the trial and is not now claimed that it was not a true statement.' The criticism of the charge to the effect that the court did not treat, nor allow the jury to consider, the ledger as evidence of disbursements made by the treasurer appears to be wholly unwarranted. The court said to the jury:

“You should also consider whether any receipts or other papers showing the disbursements of money by defendant Lovejoy have been lost which are not entered on the ledger, because if these papers are so entered, evidence remains of them which is already in the case as the whole ledger has been admitted in evidence.”

It is not reasonably possible that counsel or the jury were laboring under any misapprehension of the position of counsel for plaintiff or that it was not understood, by all interested in the trial, that the ledger account of disbursements was used as evidence of such disbursements.

The main contentions of appellant are four in number, and, broadly stated, they are:

1. That it is incumbent upon plaintiff to prove the breaches of the bonds alleged and resulting damage, which involves proof that the total of moneys disbursed by the treasurer was smaller than the total of the sums received by him.

2. That the evidence clearly discloses that the ledger of the treasurer was not kept in a manner to show all receipts or all disbursements; that various other papers, vouchers, and receipts were the sole evidences of certain receipts and disbursements, which papers, receipts, and vouchers, or some of them, were taken from the custody of the treasurer by the authority of the board of supervisors, some of them destroyed by like authority, some of them deposited with the county clerk; that these last-mentioned facts appearing, defendant was, in any event, excused from assuming any burden of showing his disbursements.

3. The plaintiff has not introduced evidence to show that it has made all the proof of disbursements possible— has exhausted evidence thereof which is in its possession.

4. The court failed properly to appreciate and properly to instruct the jury concerning these matters.

In the course of the cross-examination of plaintiff’s witnesses, the fact of the various settlements with the treasurer was made to appear. The reports of the committees made to the board of supervisors are set out in the record. It also appeared that, following a custom, the committee of the supervisors whiqh settled with the treasurer burned various of the papers examined, and that certain vouchers and receipts were periodically deposited with the county clerk. The fact of the several settlements having been made to appear, the conclusiveness, if not the honesty, of each of them was attacked by testimony, which is not disputed, tending to show that the treasurer had in none of them truthfully reported the receipts of his office. Testimony was also introduced tending to show that no receipts or vouchers were destroyed, representing any mátters not entered upon the ledger. No question seems to be raised concerning the amount of the total receipts of the office, the evidence of which was entirely documentary. It appearing that certain disbursements were mad© which did not appear upon the ledger, they were added, to the amount of over $58,000, to the sum shown by the ledger to have been disbursed.

In the course of a lengthy, painstaking, and carefully-considered charge, the court said to the jury:

“In this case, no presumption arises that the defendant Gil. R. Love joy has not legally disbursed or paid over to his successor all sums of money which came into his hands as county treasurer; and the burden of proof is upon the plaintiff to show the amount of money now remaining in his hands as such county treasurer for which he should account, if any such amount exists, or else to show such a breach of the condition of the bonds as in law casts the burden of evidence showing defendant Lovejoy’s disbursements upon the defendants.
“ The defendant treasurer had a perfect legal right to receive money into his hands, and it was his duty to receive it, and then it was his duty to account for it. The plaintiff must not only show that he received the money, but^ by a fair preponderance of the evidence, that he has failed to account for it.
“Under the pleadings in this case, there can be no verdict rendered by you against the treasurer or his surety for any money that he ought to have collected, but did not collect; hence there can be no recovery under the last count of plaintiff’s declaration, which attempts to charge a failure to receive and collect money. There can be no recovery in this case except for failure to account for and pay over public moneys received by defendant Lovejoy.
_ “By the law, it is made the duty of the board of supervisors as often as once a year to examine the accounts of the county treasurer, and to ascertain and enter upon their records a full statement of such account. It is provided by law that, at the annual meeting of the board of supervisors, or at such other time as they shall direct, the county treasurer shall exhibit to them all his books of account, and all vouchers relating to the same, to be audited and allowed.
“It appears in evidence that a committee of supervisors, appointed from the board of supervisors, settled with the defendant treasurer in the months of March and October, 1899, in the months of March and October, 1900, in the months of March and October, 1901; also in the month of March, 1902, making seven settlements in all. And that reports of the different committees which made such settlements were adopted by the board of supervisors. These settlements'are in evidence, and both defendants rely upon them, and claim them to be correct, or, at least, to be binding upon the plaintiff in this case. As to these settlements, I say to you, as a matter of law, that the presumption is that they were fair and honest. The law provided that the board of supervisors shall settle with the county treasurer, and that he shall exhibit to them all his books of accounts and all vouchers relating to the same, to be audited and allowed; and the presumption is that each one of these settlements thus effected was a proper settlement ; that all sums of money which he had received were charged to him, and that he received credit for all sums of money disbursed by him, and that he presented his books of account and all his vouchers relating to the same to be audited and allowed. It is also a presumption of law that the balance arrived at was a true statement of the account between the treasurer and the county.
“ The plaintiff claims in this case that each one of these settlements was incomplete and incorrect, and the burden of proof is upon the plaintiff to prove this claim to you by a fair preponderance of the evidence. The presumption of law that these settlements were correct is not conclusive. These settlements are only binding upon the plaintiff and upon the county of Macomb as to the then existing state of account when there has been no fraud or concealment on the part of the parties and no error, omission, or mistake in the settlement. When they come into this case they are to be taken by you as prima facie correct. But if the plaintiff has satisfied you by a fair preponderance of the evidence that these settlements, or any of them, are incorrect, for any of the reasons I haye given you, then the settlements so found to be incorrect are no longer binding upon the plaintiff; however, they are still evidence, but not prima facie evidence, of the state of the account between the county and the defendant Lovejoy.
“ The first question I shall submit to you is that of the correctness or incorrectness of these settlements. If you find any settlement to be correct and complete, under the instructions I have given you, then you are to take that settlement as showing the then true state of the account between the county and the defendant Lovejoy, unless you find such settlement is incorrect by reason of a false balance being carried into it from a former settlement. If you find these settlements to be correct and complete, then you cannot go back of the last one reported as of the date of March 4, 1902, and there will be no iúdebtedness to be found by you prior to that time and no breach of the condition of the bonds prior to that time. But if you find one or all these settlements to be incorrect or incomplete under these instructions, as to such settlement or settlements, you are authorized to go back of it or them and determine the true state of the account from other testimony; but if you find that the last settlement of the series of the March settlement of 1902 shows the correct state of the whole account as it should be and gives a balance which is a correct balance of the account from the beginning of the first term of defendant Lovejoy to that time, then you cannot go back of this settlement. But upon this question you will notice that the plan of these settlements is to carry balances from former settlements into succeeding settlements, and it would necessarily follow that a former incorrect balance would presumptively make a settlement incorrect into which it was carried. If you determine that any of these settlements are erroneous for any of these reasons which I have given you, to such an extent that the balance found did not, at the termination of each settlement, show the true condition of the account between the treasurer and the county by reason of error, concealment, omission, or mistake therein, or that by reason of fraud, concealment, errors, or omissions, the balance reached on the last settlement of March, 1902, did not show the correct amount due the. county ot Macomb, from the beginning of the defendant Lovejoy’s first term up to that time in such a manner that the county did not receive credit for all moneys belonging to it in the hands of the treasurer, then you would be justified in finding that there had been a breach of the condition of the bonds of the treasurer Lovejoy. For one of the conditions of each of these bonds is that the said treasurer Lovejoy will render a just and true account of all m.oneys which shall come into his hands whenever required by the board of supervisors or by any provision of law. And this bond follows a statute in force in this State; and if you find that there has been a breach of the conditions of these bonds as I have just set forth, then you would be authorized to enter upon a general accounting between the plaintiff and the defendant in súch manner and under ■such instructions as the court shall hereafter give you. But if you find that all of these settlements were correct ■and unaffected by fraud, concealment, error, or omission, and after each was made, each showed the correct state of the account between defendant Lovejoy and the county of Macomb, or that, on March 4, 1902, the date of the last settlement, no greater sum of money was due the county of Macomb than therein shown, then you are not authorized to enter upon any general accounting relating to any transactions prior to that time, and, under such state of facts and under the present condition of proofs, your verdict must be for the defendant.
“In this connection the.court desires to say to you that, in passing upon the character of these settlements, you have a right to consider the defendant Lovejoy’s ledger, Exhibit 9. The testimony of the different members of the committees which made these settlements is undisputed that the ledger was always used in making them, and this testimony also tends to show that, outside of a book called the ‘sparrow ledger’ or ‘sparrow book?’ it was the only book used by them, although you have a right to infer from the testimony that other books were used; but if you find that this general ledger, Exhibit 9, was wholly relied on or mainly relied on in making these settlements, and if you further find this ledger to be incomplete, erroneous, or inaccurate, and all the book of account [to] be produced relating to defendant Lovejoy’s accounts with the county of Macomb, you would have a right to infer from. this that these settlements were incomplete, inaccurate, and erroneous. This is not an action against the defendants based on a charge that defendant Lovejoy did not keep accurate accounts; but there is a statute in force in this State which provides: >
“ ‘At the annual meeting of theboardof supervisors, or at such other time as they shall direct, the county treasurer shall exhibit to them all his books and accounts and all vouchers relating to the same, to be audited and allowed.’ 1 Comp. Laws, § 2540.
“ This statute makes it the duty of the county treasurer to present all books of account he may have that are necessary for use in making settlements with the board of supervisors, or to the committee appointed to represent the board of supervisors by the board; hence it follows that if the treasurer presented inaccurate, erroneous, and incomplete books of account to these committees, and that this action of the county treasurer or this failure to produce correct, true, and accurate accounts, resulted in incomplete and erroneous settlements, the county treasurer or the surety on his bond cannot then be heard to say that this plaintiff is estopped and barred from opening up these settlements and in going back of them in an action of debt on his bond. * * *
“ Another matter to be considered by you in connection with these settlements is whether, in the destruction of the vouchers or canceled orders which the undisputed testimony shows took place after some of these settlements, evidence was destroyed which could not have been replaced in any way on this trial. And also whether defendant Lovejoy’s receipts and papers, which the testimony shows were filed with the county clerk, or tends to show were filed with the county clerk after the settlements showing the disbursements of moneys by the defendant Lovejoy, have been lost, in reference to which there is no other evidence. If you find that vouchers have been destroyed or receipts lost in these ways and with the result of a complete destruction of evidence without any fault of defendant Love-joy, then it devolves upon the plaintiff to prove to you by a clear preponderance of the evidence, fraud, concealment, error, or omission in these settlements before you would be entitled to find that they did not show the correct state of the account between defendant Lovejoy and the county of Macomb. * * *
“ Ordinarily it is the duty of the plaintiff, in cases of this character, to show not only the money received by the ' defendant treasurer, but also to show his disbursements in order to determine his indebtedness to the county and to determine whether or not there has been a breach of the condition of the bonds. And, as 1 have heretofore stated, the burden is upon the plaintiff to do so in this case; but if you find by a fair preponderance of the •evidence the fact that there has been a breach of the conditions of the bonds, in that all these settlements between defendant Lovejoy and the board of supervisors I have referred to were erroneous for the reason that they failed to show a correct state of the account between the county and its treasurer at the time they were made, so that the defendant Lovejoy was indebted to the county in a larger balance than found in these settlements, and in a larger sum than was found on the last settlement of March 4, 1902, then this state of facts so found shows a noncompliance with the condition of the bonds and a breach thereof, the effect of which under the peculiar circumstances of this case is to cast on the defendant Lovejoy the duty of showing his disbursements, if he has made any, in addition to such as are admitted or proved. And in connection with this statement you must also take into consideration the instruction I have given you upon the necessity of the plaintiff proving that these settlements are erroneous by a clear preponderance of evidence, in case you find that there has been a destruction of evidence.”

"We think the charge as favorable to defendant as he was entitled to have given. Plaintiff, whether it owed the duty to do so or not, assumed, in fact and effect, the burden of proving the receipts and disbursements of the office. A more accurate statément is that the case made by plaintiff did show all that was shown concerning receipts and disbursements. The jury found no greater sum due than the evidence, including the ledger account, warranted. It is contended that the testimony shows that the plaintiff has in its possession, or in its control, evidence which it has not produced; that there is such evidence in the custody of the clerk of the county. If this were so, we should be obliged to consider whether, under the circumstánces of this case, plaintiff was bound to prove the disbursements. But we do not so read the record, and the jury, to whom the question was submitted, did not so find. Such evidence of disbursements, not shown by the ledger, as appears to have ever existed, was either destroyed or filed or deposited with the county clerk. The testimony tended to show, and warranted the jury in finding, that nothing was destroyed which the ledger did not bear evidence of, and the clerk of the county, called as a witness, testified that he had produced such papers as he found in his office and had produced all that he knew about except some stubs showing sparrow orders issued, about which no point is made. A large number of papers, identified by plaintiff’s witnesses, were, on cross-examination, read into the record. Counsel for defendant disclaimed the purpose of introducing them to show disbursements. They did, in fact, show disbursements. It is claimed by counsel for plaintiff that the disbursements so shown have been included in' the totals used by them to show the balance owing by the treasurer. This claim is not disputed. We are therefore of opinion (and we need go no further) that the court committed no error in instructing the jury, as is set out in the paragraph of the charge last quoted; the jury having been, also, further instructed concerning the burden resting upon the plaintiff in case vouchers had been destroyed or receipts lost. Because, if the jury found, or if we assume, that the various settlements with the county were erroneous or fraudulent, and that plaintiff, having proved certain receipts of money, had proceeded in giving evidence of disbursements to the point of showing and admitting all that the ledger was evidence of and all that the other vouchers and papers in the office of the clerk were evidence of, and no evidence of any disbursements was, by act or omission of the plaintiff, lost or destroyed, it was the defendant who was bound either to meet or to submit to the presumption that other evidence of disbursements, if any existed, was within his knowledge and control. A case had been made for the application of the rule stated in People v. Swineford, 77 Mich. 583. And the rule stated meets and determines, against appellant’s contention, the point that the manner of keeping the ledger does not permit it to be said, with certainty, that certain small items of receipts shown were not, in fact, disbursed. It is true that the theory of counsel for plaintiff is (and it may be said to have been the view of the trial court) that the duty of the treasurer required him to keep accurate books of account, and that evidence that the books or book was inaccurately and fraudulently kept, added to evidence of actual receipts of money not appearing therein, made a case for plaintiff which defendant was bound to meet by proof that he had, in fact, accounted for all moneys received by him. We, for reasons already stated, are not called upon to discuss this theory. What was actually done at the trial is before us. Taking into consideration the entire charge and the state of the evidence, it fairly and correctly advised the jury of their duties. An examination of defendant’s requests to charge and comparison with the charge as given does not satisfy us that the court omitted anything to the prejudice of defendant.

We have, in what has been said, disposed of the objections presented here on the part of appellant without specific reference to the assignments of error which are relied upon. All of such assignments have been examined, and are overruled.

We find no reversible error, and the judgment is therefore affirmed.

McAlvay, Grant, Blair, and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    FITCH v. VATTER.
    1. Reformation of Instruments — Mutual Mistake — Evidence —Sufficiency.
    On a bill to reform a deed, evidence examined, and held, to support a finding that the mistake therein by which certain alleys were not reserved as intended was mutual, authorizing a reformation.
    2. Evidence — Sufficiency and Degree of Proof.
    A preponderance of the evidence is all that is required in any civil case to sustain a verdict, judgment, or decree.
    Appeal from the superior court of Grand Rapids; Newnham, J.
    Submitted January 9, 1906.
    (Docket No. 33.)
    Decided April 3, 1906.
    Bill by Milford L. Fitch against Edward A. Yatter, Mary Yatter, and the Mutual Home and Savings Association to reform a deed and to restrain the prosecution of a suit at law. From a decree for complainant, defendants Yatter appeal.
    Affirmed.

      Crane & Norris, for complainant.

      Thompson & Temple, for appellants.
   Blair, J.

The bill of complaint in this cause prays for the reformation of a deed from complainant to defendants because of a mistake in not reserving certain alleys from its operation. The trial court made a decree reforming the deed and perpetually restraining the defendants from bringing any action at law for damages. The record presents for our determination questions of fact alone, which are: First. Was there any mistake in not reserving the alleys ? Second. If so, was the mistake mutual ? The location of the property and alleys is sufficiently shown by the accompanying diagram.

These alleys from Shawmut avenue and Jefferson street liad been in existence and in use for 30 years.' Vatter had lived a few rods distant from them on lot 20 for 18 or 20

years; they were plainly defined upon the ground, and must have been well known to him. A controversy having arisen with reference to these alleys, the adjoining' owners settled their rights by quitclaim deeds dated June-14, 1898. The parties quitclaimed as follows: Gray,, who owned the west half of lot 24, together with his wife,, quitclaimed the west 8 feet, the south 4 feet, and the southwest corner of that parcel to Field, Sahms, and Fitch for a ‘ ‘ private alley or driveway. ” Fitch, who owned the east half of 23, together with his wife, quitclaimed the west 8 feet in width off west half of lot 24 to Gray, Field,, and Sahms for the purpose of “a private alley or driveway.” Sahms, who owned lot 22, together with his wife, quitclaimed the north 4 feet of lot 22 to Fitch, Gray, and Field for the purpose of “a private alley or driveway,” and Field, who owned the east half of lot 24, quitclaimed the south 4 feet of the east half of lot 24 to Fitch, Gray, and Sahms for the purpose of “a private alley or driveway.” The private alley was then established by four quitclaim deeds. The deed from complainant to defendants was drawn by a scrivener, who had for that purpose-the quitclaim deed from Gray and an abstract showing the quitclaim deeds of rights in the alleys, with instructions to draw a warranty deed. By mistake of the scrivener, no reservation of the alleys was included, but the description was as follows :

“The west one-half of lot twenty-four (24) Jefferson, street of Scribner’s addition to the city of Grand Rapids, Michigan, according to the recorded plat of said additiop, together with equal rights with first parties in the private-alley on the west line of said lot.”

A part of the purchase price was borrowed by the Vatters. The mortgage was drawn by Mr. Sheppard from the abstract above referred to. He testified:

“The mortgage to the association was signed before-me, and acknowledged by an employé in our office. The description in the mortgage is as follows:
“'The west half of lot number 24, Jefferson street, Scribner’s, addition to the city of Grand Rapids, according to the recorded plat thereof, subject to all the rights and easements created by deed recorded in liber 279, page 18, and liber 279, page 19, of deeds, in tbe office of tbe register of deeds of Kent county, Michigan.’
“In drawing this mortgage, I had an abstract before me. The mortgage was not read over to Mr. and Mrs. Vatter. I had done business with them as secretary for some time, and they were patrons of our office.”

Cross-examination:

“ I obtained the description from the abstract, for the mortgage. I think I had not seen the deed when I drew the mortgage.”

Defendants admit that they knew of these alleys, but claim that they understood that they were private driveways which belonged to the owners of the lots upon which they were located, and that they were buying and were to receive a lot 66 feet square. We are satisfied from the record that the defendants understood that the alleys were to be reserved, and that the failure to reserve them was a mutual mistake, which justified the decree appealed from. A preponderance of the evidence is all that is required in any civil case to sustain a verdict, judgment, or decree.

The decree is affirmed, with costs of both courts.

McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    GOULD v. YOUNG.
    1. Evidence — Admissibility—Cure oe Error.
    Error in admitting oral evidence of matters of which written evidence exists is cured by the subsequent introduction of the writings.
    2. Trial — Objections to Evidence — Sufficiency.
    In summary proceedings to recover land sold on contract, an objection to oral evidence of the existence and discharge of a mortgage on the land that it is “ incompetent, immaterial, and irrelevant, not mentioned in the contract between these parties ” calls attention to no reason for excluding the evidence.
    3. Same — Directed Verdict — Amendment of Judgment.
    Where, in summary proceedings to recover land sold on contract, the court directs a verdict for complainant, and the verdict fails to find the amount due complainant, it is proper for the court, on motion of complainant, to amend the judgment • entry by stating the amount due. .
    4. Vendor and Purchaser — Rights of Purchaser — Incumbrance by Vendor.
    The fact that the vendor, in an executory contract for the sale of land, borrows money by incumbering the land after the making of the contract does not entitle the purchaser to have the amount so raised applied on the contract, or entitle him to retain possession after default, on the theory that when the money raised is so applied he is notin default.
    Error to Van Burén; Carr, J.
    Submitted January 31, 1906.
    (Docket No. 79.)
    Decided April 3, 1906.
    Summary proceedings by Thomas Gould and another against David D. Young and another for the possession of certain real estate. There was judgment for complainants on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Lincoln H. Titus, for appellants.

      Anderson & Warner, for appellees.
   Ostrander, J.

Complainants are vendors, and defendants the vendees, in an executory contract for the sale of lands, entered into August 31, 1901, under which defendants are in the possession. In March, 1905, vendors, after having given a three months’ notice of claimed forfeiture of defendants’ rights, with demand for possession, began an action before a circuit court commissioner to recover possession, the complaint setting out, generally, the possession of defendants, a tenancy, unlawful holding, and the right of complainants to possession. The commissioner found in favor of complainants, and found and stated the amount which was, by the terms of the contract, then due. Defendants appealed.

The case was heard at the circuit, and a verdict directed for complainants. No testimony was offered on the part of defendants. The journal of the court recites a verdict rendered by direction of the court and concludes as follows:

“Therefore it is considered that the said complainants do recover possession of the premises described in the complaint, * * . * and that a writ of assistance do issue; * * * that complainants recover their costs and charges.”

Counsel for defendants moved to set aside the verdict and judgment, for the reason that the amount due to complainants should have been determined by the jury. Complainants, by a writing filed in the cause, tendered a correction and amendment of the judgment entry, to the effect that there was due at the date of trial upon the land contract $791.65, and interest thereon from March 3, 1905, at the rate of 5 per cent, per annum, and also waived the right to interest from March 3, 1905, to the date of said correction and amendment. The court amended the judgment, and overruled the motion. The land contract provided for payment of the purchase price of $3,000 in installments, upon' payment of $1,000 of which, in accordance with the terms of the contract, a deed was to be given and mortgage taken for the balance of the purchase price. Tendees have not made payments according to the requirements of the contract, and were, when notice to quit was served upon them, and still are, in default. There is evidence in the record of a claim on the part of their counsel that they have paid a total of $729.20. On October 1, 1903, by the terms of the contract, a total of $800 should have been paid. The case is "brought here by writ of error, 42 errors being assigned upon the record, and the bill of exceptions containing all the testimony. The brief for appellants does not contain, as is required by Rule 40 of this court, a statement, distinct from argument, of the errors relied upon, the questions involved, and the manner in which they arose. The court is much aided by the observance of this rule.

Under the first two assignments of error, we are asked to reverse the judgment, because oral evidence was admitted of ' matters which were in writing, and better proved by the instruments themselves. Both writings were later introduced in evidence.

The statements of a witness to the effect that there was'a mortgage upbn the premises when the executory contract tvas made, which mortgage was later discharged, were received over objection that they were “ incompetent, immaterial, and irrelevant, not mentioned in the contract between these parties.” Exceptions were taken, errors assigned, and they are argued in this court. There may have been better evidence of the facts, but it is not clear how the fact stated in the objection affects the question of the admissibility of this testimony. Besides, the facts stated by the witness were otherwise proved, are included in appellants’ statement of facts, and are affirmatively relied upon as evidence of infirmity in the case made by complainants. Why this court should be called upon to examine and dispose of these objections is not clear._ We have examined and overrule, as without merit, all objections based upon rulings admitting evidence.

It is not pointed out in what respect the facts recited in the amendment to the judgment are untrue. Testimony was given of the sums paid by defendants upon ihe contract. The directed verdict was not a nullity, nor void. The amendment supplied whatever defendants were entitled to have included in the judgment entry if the amount was correctly stated. McSloy v. Ryan, 27 Mich. 116; Bauer v. Wasson, 66 Mich. 256; Trevor v. Hawley, 99 Mich. 504.

Defendants insist that the provision in the contract ■concerning payments, which reads: “$200, April 1st, 1902 (or when possession is given), providing, however, that a good marketable, and sufficient abstract of title ■shall first be furnished, and showing no incumbrance upon the said premises,’’was not complied with bycomplain■ants. It appears, however, that an abstract covering 80 .acres, including the premises in question, was exhibited to ■defendant David Young (this showed the mortgage upon the premises, which was discharged May 27, 1903), and that later, in October, 1904, an abstract of the particular premises in question was delivered to defendants. This mortgage having been discharged, the matter does not •seem to have any relevancy. It also appears that defendants did not pay $200 on April 1,1902, but did pay, on April 11th, $120, and made various payments thereafter until August 1, 1904, since which time nothing has been paid. It is claimed that neither abstract furnished is such an ■ one as the contract demands, and therefore defendants are '■ entitled to possession of the premises. We do not discuss the rather technical faults found with the abstract finally' furnished; the entries in which appear in the record. It ¡ shows a mortgage, dated May 25, 1903, for $1,000, given by complainants, conveying the contract premises. The ■ undisputed testimony is to the effect that the mortgagee, being applied to by complainants for a loan, and knowing that thé land was sold upon executory contract, visited ■ the property with complainant Thomas Gould, and, in a conversation there with defendants, stated to them that he had concluded to lend complainants $1,000 on the property; that he did not lend money in such cases without an understanding that it was satisfactory to the contract purchasers; that Mr. Young, in presence of his wife and Thomas Gould, stated that he did not care to whom he owed the money. The contract bore a lower rate of interest than the mortgage, and Mr. Gould claimed that,, inasmuch as he had waited upon defendants for payments,, they should pay the increased rate of interest. Later, Mrs. Young visited the said mortgagee for the purpose of procuring a larger loan to pay up complainants. It is in evidence, also, that complainants gave David Anderson authority in writing on October 26, 1903, to collect amounts due and to become due upon the contract, and that in April, 1904, Anderson and the defendants entered into an agreement, in writing, known to and ratified by complainants, which agreement referred to the original land contract, and recited that payments thereon had been extended to October 1, 1904, in consideration of which $25 was presently paid by defendants, promise made to pay other sums on- June 1st and August 1st, and to pay on October 1, 1904, all sums then due by the terms of the original contract. The proceeds of the peach crop of 1904, if there should be one, were set over to said Anderson to-be applied on the contract; any sums in excess of amounts due October 1, 1904, to be returned to defendants. The force and effect of this agreement are debated. It had and has no place in the case except as evidence that defendants were not refusing to make payments upon the ground that an abstract of title had not been furnished them, that they made certain payments according to the terms of said contract, and that they did not then regard complainants as being in any way in default. Counsel for appellants claim that the money secured by the mortgage last given should be applied as a payment upon the contract price. Why this should be done is not pointed out. No good reason has suggested itself.

At the conclusion of complainants’ case, counsel for defendants asked the court to direct a verdict for defendants for the reasons:

1. That the f 1,000 borrowed should be applied upon the contract, leaving nothing due thereon.

2. That the evidence showed that no proper abstract had been furnished on April 1, 1902.

3. That complainants had not insisted upon time as of the essence of the contract and had accepted payments long after they became due; had placed a lien upon the premises. That the effect of all of these things was to relegate complainants to a court of equity for relief.

The court declined to then direct a verdict, and thereupon defendants rested their case. We are of opinion that the testimony warranted no other conclusions than were arrived at by the court in finally directing the verdict. The title of complainants to the premises is not questioned. Defendants have never been in position to demand of complainants any action beyond the furnishing of an abstract. The authorities relied upon by counsel for appellants, viz., Meshew v. Southworth, 133 Mich. 335; Getty v. Peters, 82 Mich. 661 (10 L. R. A. 465), are notin point here. In the first case cited, the vendors were seeking to compel specific performance by the vendees, and in the other the facts bear no resemblance to those appearing here. Indeed, in that case it was expressly found that the vendee was always ready to perform the contract, and that, at the time notice of forfeiture was given, the vendor had no title to the premises. We think no authority will be found for the broad claim asserted at the hearing that defendants may remain in possession without making payments, or being ready or offering to do so, because complainants have, since the contract period began, mortgaged the land.

The undisputed testimony shows clearly defendants’ assent to such mortgaging. There was no issue of fact to be determined by the jury. Whatever the rights of defendants may be, they do not include the right to continue in possession of the land.

The judgment is affirmed.

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


text:
    MEYER v. LALLY.
    Malicious Prosecution — Action—Malice—Question for Jury.
    Where, in an action for false imprisonment and malicious prosecution, it appears that plaintiff was properly arrested by defendant while violating a city ordinance by speaking in a public place without a permit, but that following the arrest defendant, without reading it, signed and swore to a complaint charging him with using indecent language, which there was no evidence to support, and there is evidence from which the existence of malice might be inferred, it is error to withdraw from the attention of the jury the proceedings after the arrest and the responsibility of defendant therefor.
    Error to Wayne; Frazer, J.
    Submitted February 7, 1906.
    (Docket No. 31.)
    Decided April 3, 1906.
    Case by Meiko Meyer against Thomas W. Lally for false imprisonment and malicious prosecution. There ’was judgment for defendant, and plaintiff brings error.
    Reversed.

      Benjamin Jacobson, for appellant.

      Fred H. Warren, for appellee.
   Ostrander, J.

Plaintiff, in his declaration, claims damages for false imprisonment and for malicious prosecution. The plea was the general issue, with notice that the trespasses of defendant were committed under circumstances amounting to a justification, and that the circumstances were (I state the substance only) that, at the time the arrest of plaintiff was made, an ordinance of the city, adopted under charter provisions, prohibited the making of any public address upon any street, avenue, park, or grounds within the one-half mile circle from the city hall, without permit from the mayor, and punished by fine or imprisonment, or both, any violation thereof; that the Campus Martius was a public space, street, and highway within the limits aforesaid; that plaintiff, without license or permit from the mayor, was engaged, at the time of his arrest, in speaking there to a large number of people whose presence impeded traffic, was interfering with the public use of said space, and committing a breach of the peace; that defendant, a police officer, requested plaintiff to desist and move on, which plaintiff declined to do, saying, “Go ahead and arrest me;’’that defendant thereupon took him into custody, conducted him to the police station, and, at the earliest opportunity, before a police justice, to whom he stated the facts and before whom he subscribed to a complaint prepared by said police justice, with which, or the framing of which, defendant had nothing whatever to do, and relied upon said justice in subscribing the same.

The testimony warranted the jury in finding that plaintiff, in attempting a public address at the place and upon the occasion, was openly defying the authorities and courting arrest, and was, within the meaning of the ordinance, a disorderly person. There is testimony tending to prove that the validity of the ordinance violated was questioned, and that a case involving it was, at the time of the arrest, pending in this court, and that meanwhile, until the decision of that case, complaints for violating that ordinance were not entertained. Defendant testified that he did not read the complaint; that he was present on the morning of September lfjth when plaintiff’s case was called, heard him plead not guilty, and heard him demand a jury trial, but did not know whether the complaint was read in his hearing or not. It appears that, in cases "of such arrests, an entry is made on a blotter at the station house, but by whom does not appear, showing the name of the party arrested, the charge, the name of the officer making the arrest, and that these books are sent to the police court clerks, who make out complaints from the information afforded by the blotter, the officer, signs them, and they are taken to the justice, who administers to the complainant the oath. The complaint against plaintiff sets out that he was guilty of disorderly conduct—

“ For that the said defendant then and there was * * * using indecent and immoral language, and the said complainant further says that the aforementioned person is now in custody on arrest for the above mentioned offense, committed in his presence and view as such police officer.”

It was made on Monday following the arrest. A warrant was issued which followed the complaint. Plaintiff pleaded thereto not guilty, was required to give and gave bail, with two sureties, for his appearance for trial. On September 30th, at the trial, the defendant here was sworn as a witness, and testified that plaintiff (respondent there) did not use indecent or immoral language upon the occasion of his arrest, and the respondent (plaintiff) was thereupon discharged. In the trial of the case at bar, the court, in charging the jury, used the following language:

“Something has been said about the nature of this complaint, that he has been charged with using indecent and insulting language. There is no claim here on either side that the young man, the plaintiff, used any indecent or abusive language or insulting language. This is printed in these ordinary complaints, and there is a great deal done in these police examinations that cannot be countenanced by any law that I know of. There should be no such thing tolerated as swearing to a complaint that has not been read either by the officer making the complaint or by the court receiving it. All these parties should know what they are doing. But, even if this charge against him was an improper charge, charging an offense of which he was not guilty at all, and which it is conceded he was not guilty of, that is, using insulting and indecent language, and this was made by mistake, and he was discharged, that would cut no figure in this case at all, provided you shall find that this man had committed an offense for which the officer had a right to arrest him, even if it was a different offense than that stated in the complaint and warrant.
“ You are to determine whether there was such conduct on the part of this man that under the law justified Mr. Lally in making the arrest under the circumstances, and not the offense that he was charged with after the arrest. That is not a matter in issue in this controversy at all. So, if Mr. Lally did anything against him that would have been justified under the law, that is, if he was violating this ordinance in speaking there, or in obstructing the highway, or making a breach of the peace which would amount to disorderly conduct under the law, under the statute and under the ordinance itself, if he is guilty of anything of that kind, then Mr. Lally’s conduct, would be justified, and there can be no question of damages in this case at all, and the defendant should be free.”

If the officer in making the arrest intended the enforcement of any city ordinance, which plaintiff was then and there violating, cause for the arrest is made out. It is not claimed there was cause for the succeeding prosecution. It is claimed that absence of malice on the part of defendant conclusively appears. "We are of opinion that it cannot be said, as matter of law, that there is no evidence from which malice might be found or inferred. This being so, it was error to withdraw from the attention of the jury the proceedings after the arrest, and the responsibility of defendant for what actually occurred.

The judgment is reversed, and a new trial granted.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    BATESON v. CITY OF DETROIT.
    Taxation — Payment by Mistake — Recovery by Taxpayer.
    Where a taxpayer could have determined by comparing the description assessed to him with the description in his deed that the assessment covered more land than he owned, but he voluntarily paid the taxes, he cannot recover them.
    Error to Wayne; Rohnert, J.
    Submitted February 8, 1906.
    (Docket No. 108.)
    Decided April 3, 1906.
    Assumpsit by Samuel R. Bateson against the city of Detroit for money had and received. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Lord & O’Connor, for appellant.

      John W. McGrath (T. E. Tarsney, of counsel), for appellee.
   Montgomery, J.

On December 31, 1903, Samuel R. Bateson commenced this suit to recover for overpaid city taxes for the years 1870 to 1902, both inclusive. The plea of the statute of limitations was interposed as to taxes paid prior to six years before the suit was instituted. Plaintiff in April, 1872, received from Ralph Phelps a deed of premises described as:

" Commencing at a stake standing on the southeasterly corner of Michigan avenue and First street; thence, easterly, along the line of said lot on Michigan avenue fifty feet six inches, to a stake; thence, southerly, at right angles with Michigan avenue, to a stake standing twenty-three feet, and four inches easterly from the westerly line of said lot on First street; thence southerly on a line twenty-three feet and four inches easterly from the westerly line of said lot on First street to a stake standing on the southerly line of said lot on Abbott street; thence, westerly, twenty-three feet four inches, to a stake standing on the northeasterly corner of Abbott and First streets; thence, along the line of said lot on First street, to the place of beginning, and being the westerly part of lot numbered 2, in block numbered 43^ in the Western addition to the city of Detroit of part of Cass farm.”

He conveyed the premises so described to Elizabeth Bateson April 18, 1877.

The claim is rqade that he paid on property adjoining his wife’s land, but not included in the description given in the deed from Phelps to him or in the deed from him to his wife, Elizabeth Bateson. No claim was made that this land, which did not belong to his wife and upon which he paid, was assessed to Ralph Phelps, the owner thereof, or that any other person paid the taxes thereon. Plaintiff’s claim is that Ralph Phelps should have paid the taxes, and that plaintiff paid them by mistake of fact. In every receipt for taxes paid by him the description of the land upon which he paid was given as the “W. 50.49 feet lot of No. 2.” The land which plaintiff owned from April, 1868, to April, 1877, and which Elizabeth Bateson has since owned, is a portion of lot 2, having an angular frontage on Michigan avenue on the corner of First street, but it is but 50.49 feet in width at right angles from the First street line. While Elizabeth Bateson owned 50.49 feet of the Michigan avenue frontage of lot 2, she owned but 23.33 feet on Abbott street, which is south of Michigan avenue. Phelps owns 7.25 feet of lot 2 on Abbott street. Plaintiff paid the taxes on the entire W. 50.49 feet of lot 2, while Phelps paid only upon the easterly 7.25 feet of said lot 2. No claim was made that the taxes were paid under compulsion or under protest. A verdict was directed for the defendant, and plaintiff brings error.

It is apparent that the plaintiff, when he made the payments in question, had before him the description assessed, and could have determined by a comparison of the same with the description in his deed that such assessment covered more land than he or his wife owned. The tax was voluntarily paid. The rule that a tax voluntarily paid cannot be recovered back, and that the taxpayer cannot aver a mistake of fact which results from his own neglect to con- ■ suit the record, is too well settled to require extended citation of authorities. See 2 Cooley on Taxation (3d Ed.), p. 1495; Manistee Lumber Co. v. Township of Springfield, 92 Mich. 277. The instruction was warranted.

Judgment affirmed.

Blair, Ostrander, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    SPEIGEL v. HAAK LUMBER CO.
    Trespass — Theft of Timber — Contract of Payment.
    In assumpsit on an agreement to pay for timber stolen from plaintiff and sold to defendant, evidence examined, and held, sufficient to sustain a verdict for plaintiff.
    Error to Saginaw; Beach, J.
    Submitted February 9, 1906.
    (Docket No. 130.)
    Decided April 3, 1906.
    Assumpsit by Frederick F. Speigel against the Haak Lumber Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Charles D. Barghoorn ( Wesley W. 'Hyde, of counsel), for appellant.

      Crane & Crane, for appellee.
   Grant, J.

This suit originated in justice’s court, where the plaintiff recovered verdict and judgment for $212.05. Defendant appealed to the circuit court, where the plaintiff again obtained judgment for a like amount, and defendant has brought it to this court for review.

Plaintiff seeks to recover the value of a certain amount ■of saw logs and ties taken from his land. He had cut some of the timber and had skidded it. One Mitchell took ■the timber cut, and also cut and took away more. He sold it to the defendant, hauled it to the railroad on plaintiff’s banking ground, marked, and defendant had used, all the logs, but the ties defendant had not removed. On ascertaining the theft and trespass, plaintiff traced his property into the defendant’s possession, with its marks upon it. He at once made claim to the defendant’s agent, and subsequently to the. secretary and treasurer of the defendant, at its office. He gave evidence of an agreement between himself and the defendant that defendant should take and pay for the timber. He also gave evidence of an agreement to pay 25 cents per thousand for the use of his banking ground and skids. His declaration was oral on the common counts in assumpsit. Plea was general issue, with notice of set-off. It was conceded that the logs and ties were cut from plaintiff’s land.

There are 39 assignments of error. Counsel, however, group them under 6 claims:

1. There can be no recovery under the declaration, because the defendant had not trespassed upon the plaintiff’s land, but had purchased the timber in good faith. ,

2. That there was no contract made to pay for the timber and the use of the banking ground, or for either.

3. That no recovery could be had for the use of the banking ground.

The otüer three grounds are substantially covered by the above.

It is also claimed that there was no evidence that one Hurlburt, the agent of the defendant, was authorized to hire a banking ground. A statement of the facts and a discus- ° sion would be no profit either to the parties or to the profession. It is sufficient to say that there was ample evidence to sustain tbe finding of tbe jury. In fact, tbe jury could not well have found otherwise. We find no error in tbe rulings or instructions of tbe court. Tbe judgment is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ.„ concurred.


text:
    PEOPLE v. WEST.
    1. Criminal Law — Appeals—Method op Review.
    There are two statutory methods of review of criminal cases in. this State. One is by exceptions before sentence; the other, by a writ of error. If the first method is adopted, a writ of error, there being no judgment, performs no function. If the second method is adopted, it is upon the assumption that the writ of error has a function to perform and that a judgment-has been entered.
    2. Same — Exceptions Before Sentence — Right to Bail.
    Where exceptions before sentence are allowed under sections, 11964-11968, S Comp. Laws, the accused has a right to bail pending the determination of his case in this court, unless-the circuit judge is dearly of opinion that the exceptions alleged are frivolous, immaterial, or intended only for delay.
    3. Same — Writ of Error — Stay of Proceedings.
    Except where the conviction is for treason or murder in the' first degree, writs of error issue in criminal as well as civil cases as of course, and they do not stay or delay the execution of the judgment or sentence unless they are allowed by one of the justices of the Supreme Court, or by a circuit judge, “ with an express order thereon for a stay of proceedings on the judgment or sentence.” Section 10490, 3 Comp. Laws.
    " 4. Same — Admission to Bail by Supreme Court.
    Where a writ of error is taken out before sentence is pronounced,, and respondent applies to this court for admission to bail and an order staying proceedings below until determination of the case on error, this court will deny the motion, with permission to respondent to take out a new writ of error, if sentence is pronounced, and to present to this court an application for a stay of proceedings.
    Hume H. West was convicted of larceny, and took out a writ of error: On motion to admit to bail, and for stay of sentence pending the appeal.
    Submitted March 31, 1906.
    (Calendar No. 21,632.)
    Motion denied April 11, 1906.

      Charles Flowers, for the motion.

      Ormond F. Hunt, Prosecuting Attorney, contra.
   Ostrander, J.

Respondent, West, was,'on March 12, 1906, upon his trial in the recorder’s court of the city of Detroit, found guilty of larceny. He gave a recognizance for his appearance March 21, 1906, for sentence. On March 19, 1906, a writ of error was taken out, returnable April 28,#1906. _With his counsel respondent on March 20th appeared before the judge of the recorder’s court and asked that sentence be stayed and bond for .his appearance for sentence continued in force until the determination of his case on error. The application was denied. Thereupon, upon his application, this court made an order staying, proceedings until his motion to be admitted to bail and for stay of sentence could be regularly brought on for hearing in this court. It appears that a bill of exceptions has been prepared and served and noticed for settlement on April 9th. The frequency with which like applications are made to this court seems to require that the practice in such cases be better settled and better understood.

It is by force of the statute only that reviews on exceptions to the proceedings in criminal cases can be had. In substance and effect, the statutes upon the subject now in force are the same as those found in the Revised Statutes of 1846. There are two statutory methods of review. One is by exceptions before sentence; the other, by a writ of error. If the first method is adopted, a writ of error, there being no judgment, performs no function. If the second method is adopted, it is upon the assumption that the writ of error has a function to perform and that a judgment has been entered. Section 11964, 3 Comp. Laws, provides that any person convicted of any offense before any court of record may allege exceptions to the opinion, direction, or judgment of the court in any matter of law, which exceptions, being reduced to writing in a summary mode and presented to the judge before whom the case was tried, before the end of the term, and found conformable to the truth of the case, shall be allowed and signed by the judge. Section 11965 provides that upon the signing of such exceptions all further proceedings in that court shall be stayed—

“ Unless it shall clearly appear to the judge that such exceptions are frivolous, immaterial, or intended only for delay, and in that case judgment may be entered, and sentence awarded in such manner as the court shall deem reasonable, notwithstanding the allowance of such exceptions. ”

Section 11967 provides for a recognizance, if the offense is bailable, for the appearance of the respondent at the next term of such court and to prosecute his exceptions to effect in the Supreme Court, and section 11968 directs that if the respondent shall not recognize as directed he shall be committed to prison to await the decision of the Supreme Court. It was held in De Montague, 70 Mich. 158, that the object of' these provisions of the statute was to secure the right of bail until a conviction is determined in this court, unless the circuit judge is clearly of opinion that the exceptions alleged are frivolous, immaterial, or intended only for delay, and in the case of People v. McKinney, 9 Mich. 444, it was held that notwithstanding the exceptions the cause still remained in the court below, and that in the absence of a statute conferring the authority so to do the Supreme Court had no power to take bail. Except where the conviction is for treason or murder in the first degree, writs of error issue in criminal as well as in civil cases as of course, and they do not stay or delay the execution of the judgment or sentence unless they are allowed by one of the justices of the Supreme Court or by a circuit judge “ with an express order thereon for a stay of proceedings on the judgment or sentence.” . 3 Comp. Laws, § 10490.

If a stay of proceedings is ordered, it is competent at the time of making the order to make a further order for the custody of the plaintiff in error or for letting him to bail. 3 Comp. Laws, § 10491. Except the conviction be for one of the serious offenses just mentioned, the right of a person convicted to have the errors of law, if any, committed upon his trial, reviewed by the Supreme Court, is a matter of right. The choice of methods for obtaining such review lies with the respondent. If he determines to pursue the method of exceptions before sentence, he is entitled to a stay of judgment and sentence, pending the decision of the appellate court, unless the trial judge regards the exceptions taken as clearly frivolous, immaterial, or intended only for delay. If the method for review is by writ of error, the trial court should proceed to sentence, and in such cases the stay of execution of the sentence should be applied for with the application for a writ of error. Upon such an application, such a record should be presented here as will enable the court or the justice to whom the application for a stay is made to determine whether or not the exceptions alleged are frivolous, immaterial, or intended only for delay, and for the purpose of reaching a proper determination upon this question it has been the practice to require, and that practice will be continued, that notice of the application be given to the attorney general.

Applying what has been said to the matter now before the court, we reach the conclusion that no objection should be interposed by this court to the pronouncement of sentence by the court below, and the motion of respondent is denied. Permission is given to the respondent, if sentence is pronounced, to sue out a new writ of error and to present to this court his application for a stay of proceedings. It seems wholly unnecessary to remark, in conclusion, in view of the statutes to which reference has been made and the clear policy indicated by their provisions, that when it is brought to the attention of the trial court that it is desired to review a criminal case upon exceptions before sentence a reasonable opportunity should be given to prepare and settle exceptions,- and that where, before execution of a sentence has been entered upon, it is made to appear to the trial court that a writ of error is about to be sued out of this court and an application for a stay of sentence made, unnecessary annoyance and expense is likely to result from putting the sentence of the court into execution before the coming down of the writ of error. It is equally clear that the proper administration of the law demands of convicted persons diligence in determining the method proposed to be pursued to secure a review of the proceedings, and in advising the trial court thereof.

Carpenter, C. J., and McAlvay, Grant, Blair, Montgomery, Hooker, and Móore, JJ., concurred.


text:
    DETROIT REDUCTION CO. v. BLADES.
    '1. Municipal Corporations — Detroit Charter — Contracts — Commissioner of Public Works —Estimate —Necessity— Garbage Contract.
    Under sections 234, 240, and 378 of the charter of Detroit (compilation of 1904), an estimate by the commissioner of public works is not a prerequisite to the making by the common council of a contract for the disposal of garbage to be collected by the city, such contract not requiring the construction of any public works, and there being neither necessity for, nor propriety in, the commissioner recommending action in relation to matters with which his department is in no way concerned.
    '2. Same — Duties of Commissioner.
    It is not important in this connection that the council provided in the contract that the commissioner should designate the stations at which the garbage should be delivered, since, by so doing, the council, for convenience, designated the commissioner as the agent of the city, but did not enlarge his powers under the charter and render nugatory the very act under which his special powers were conferred.
    : 3. Same —Appropriation—Necessity.
    Under section 240 of the charter, contracts for the removal and disposition of garbage are exempted from the provision that a tax assessment must be laid to pay the expense in advance of a contract, and hence the objection that the appropriation made in connection with such a contract is insufficient, is immaterial.
    Certiorari to Wayne; Hosmer, J.
    Submitted April 3, 1906.
    (Calendar No. 21,619.)
    Decided April 21, 1906.
    Mandamus by the Detroit Reduction Company to compel Francis A. Blades, city controller of Detroit, to enter into a contract with relator as authorized by the common ■ council. There was an order denying the writ, and relator brings certiorari.
    Reversed, and writ granted.

      Clark, Jones & Bryant, for relator.

      Timothy E. Tarsney, for the city of Detroit.

      H. E. Spalding, for respondent.

      John J. Speed, for taxpayers.
   Montgomery, J.

This is certiorari to review mandamus proceedings. The common council of the city of Detroit voted to enter into a contract with relator which, in substance, provided that the city would for a period of 10 years collect, or cause to be collected, all garbage in the city and deliver it to relator, and that relator should dispose of the same without cost to the city. The contract provided that the city would provide for the collection of the garbage and delivery of the same to relator, either by a contractor or agents of the city. The respondent refused to act upon the direction of the common council to execute the contract, and mandamus was sought to compel him to act. The court below refused the writ of mandamus, and that ruling is now before us for review.

It was contended in the circuit court that the proposed contract was illegal, and three grounds of invalidity were urged:

“ 1. No preliminary estimate of the cost was obtained from the commissioner of public works.
“ 2. The extent of the liability imposed upon the city by the contract is indefinite, uncertain, and incapable of ascertainment.
“3. Sufficient money to defray the expense is not available for appropriation. The appropriation attempted was insufficient and is ineffectual, and no tax or assessment has been levied to defray the expense.”

In determining the first question, it is necessary to have before us the precise provisions of the charter. Three sections have a direct bearing on the question; sections 234 and 240 of the 1904 compilation, being sections 2 and 8 of the amended charter, and section 378 of compilation, being section 12 of the board of public works act. These Sections read as follows:

(234) Sec. 2. The common council shall have power annually to levy, assess and collect taxes not exceeding one per cent, on the assessed value of all real and personal estate in said city, made taxable by the laws of this State, in order to defray the expenses, and for the purpose for which the general fund, contingent fund, Detroit fire commission fund, poor fund, general road fund and recorder’s court fund are constituted as above. Said common council shall have power annually to levy assessments and collect taxes on the assessed value of all real and personal estate in said city, made taxable by the laws of this State, in order to defray the expenses and for the purpose for which the public lighting fund is constituted as above. Said common council shall have power to advertise for proposals and contract for such public lighting for the term of one, two or three years, as they shall deem advisable: Provided, That the amount to be raised for such public lighting in any one year shall not exceed the estimated cost or the actual cost if already contracted for, of the public lighting for that year: Provided further, That the common council shall have the power to advertise for proposals, and contract for the removal, disposition and destruction of garbage and all animal and vegetable refuse for the térm of one, two or three years, or for such term, not exceeding ten years, as they shall deem advisable; but the amount to be raised for any such purpose in any one year shall not exceed the estimated cost or the actual cost, if annually contracted for, for that year. (As amended by Act No. 272, Local Acts 1901, approved February 6, 1901.)”
“ (240) Sec. 8. No contract shall be let or entered into for the construction of any public work, or for any work to be done, or for the purchasing or furnishing of supplies for said city not herein provided for, and no such public work, performance, purchasing or supplying shall be commenced until approved by the common council, and until the contract therefor has been duly approved and confirmed by the common council, and a tax or assessment levied to defray the cost and expense of the same, and no such work, supplies and materials shall be paid for or contracted to be paid for, except out of the proceeds of the tax or the assessment thus levied: Provided, however, That the public lighting may be contracted for and paid for in accordance with section two of this act: And provided further, That the removal, disposition or destruction of garbage may be contracted and paid for in accordance with the provisions of section two of this act. (As amended by Act No. 424, Local Acts 1889, chap. 11, § 8, approved June 17, 1889.) ”

Section 12 of the board of public works act reads:

“ When any public improvement (except the opening of public streets), or public work is proposed, the common council shall, before proceeding with, the same, refer the matter to said board of public works, and the board last named shall forthwith proceed to examine the same, and shall, as soon as practicable, report thereon to the common council, giving detailed estimates of the costs of such works or improvements (if any cost there will be), and shall make such recommendations as said board of public works shall deem expedient.” Act No. 392, Laws 1873.

By a later act the duties of the board of public works were devolved upon a commissioner. Act No. 417, Local Acts 1901.

The question is whether the contract in question is one which the council is by section 12 prohibited from making, in the absence of an estimate from the commissioner. We think not. It is clear that the contract in question does not require the construction of any public works. It is only as the contract makes necessary further action by the city that its execution can be said to be proceeding with a public improvement or work. But, though this contract is to be treated as a step in a proceeding which will ultimately involve the city in the work of gathering garbage, and therefore a “proceeding ” with that business, we think it is not within the terms of the section quoted. This section should be construed as relating to those works and improvements which are committed to the care of the commissioner. There is neither necessity for, nor propriety in, the commissioner recommending action to the common council in relation to matters in which his department is in no way concerned.

Nor is it important that the common council may have, in its contract with relator, provided that the commissioner should designate the stations at which the garbage should be delivered. In so doing, the council, for convenience, designated the commissioner as the agent of the city, but did not enlarge his powers under the charter and render nugatory the very act under which his special powers were conferred. The two cases of Butler v. City of Detroit, 43 Mich. 552, and Mills v. City of Detroit, 95 Mich. 422, dealt with public improvements which were, by the act constituting the board of public works, committed to its charge, and the construction given to section 12 must be considered in the light afforded by that. important circumstance.

Under section 240 contracts for the removal and disposition of garbage aré exempted from the provision that a tax assessment must be laid to pay the expense in advance ■of a contract. Section 234 in its general scope is an enabling provision. The common council is authorized to levy, assess, and collect taxes not exceeding 1 per cent. By a proviso the common council is given authority to contract for the removal and destruction of garbage for a term of years. This is followed by a provision that the amount to be raised by tax in any one year shall not exceed the estimated cost for that year, or actual cost if annually contracted for. It is evident that this provision was inserted, not for the purpose of indicating that an estimate by any particular board other that the common council was required, but to exclude the assumption that the entire cost of a long term contract could be assessed in one year.

We do not think the claim that the appropriation is inadequate is entitled to weight. It is not made a prerequisite to entering into the contract that the fund with which to meet the demands growing out of it shall be in hand.

We think the court was in error in refusing the writ of mandamus, and the order will be reversed.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.


author: Moore, J.

text:
    ELIGH v. GOLDIE.
    1. Master and Servant — Personal Injury — Defective Appliance— Promise to Repair — Assumption of Risk.
    Where a servant continues in his employment, and uses a defective appliance for a reasonable time, upon repeated promises that it shall be repaired, and is injured, the question whether he assumed the risk is for the jury.

    2. Same.
    By joining the ends of a belt with rivets, as required by the foreman, because of the absence of lacing, for which the servant expressed a preference, and continuing the use of the belt, the servant assumed the risk of injury from the belt so joined, there being no claim that any misrepresentation was made to him.
    Error to Bay; Shepard, J.
    Submitted December 7, 1905.
    (Docket No. 163.)
    Decided April 30, 1906.
    Case by Edgar Eligh against William Goldie for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      James Donnelly, for appellant.

      Cooley & Hewitt, for appellee.

       As to effect of employé’s continuing work on master’s promise to remove a specific cause of danger, see note to Illinois Steel Co. v. Mann (Ill.), 40 L. R. A. 781.

   Moore, J.

Plaintiff is about 50 years of age, and had worked in and about a hoop mill for several years, when he entered the employment of the defendant on or about April 1, 1902. He had done some work toward putting a machine in order which was to be used for the purpose of sawing from slabs bolts which were afterwards sawed into hoops. These slabs were pushed over a table through which came the circular saw which sawed the slabs into bolts. He commenced using this machine April 1st. On the 24th of April a bolt or a piece of the slab was caught upon the saw and thrown forward with great force, striking the plaintiff and injuring him. In January, 1903, while in the act of oiling a planing machine on which he was employed, a new belt came apart and struck his hand in such a way as to injure it severely. It is for the two injuries thus received that this action is brought. The circuit judge directed a verdict in favor of defendant. The plaintiff brings the case here by writ of error.

It is the claim of plaintiff that, because there was no guard back of the saw, such as is usually put there to make it safe to operate such a machine, the accident occurred. He admits that when he went to work he knew the guard was not there, but testified that defendant’s foreman, before the machine was started, asked him to start the machine and make some hoops, so Mr. Goldie could see the kind of work the machine would do before he went away. And the foreman at the same time said: “Ed., there is no guard behind that saw. You go on and make some hoops for Mr. Goldie, and as soon as you try it I will put a guard on.” That plaintiff started, and continued to work on the machine, and the foreman did not put a guard on. That plaintiff asked for a guard to be put on, three different times, between the time when he began to work, about the 1st of April, and the 24th of April, when he was hurt. The first time, after beginning work, the plaintiff asked that a guard be put on, the foreman said to the plaintiff: “ You never mind. I will attend to that.” The next time the plaintiff asked for a guard he was going to quit, and the foreman promised faithfully to put the guard on. The last time plaintiff asked for a guard, a hoop came over and struck the back of his' hand, and plaintiff then went to the foreman and said to him, “You are not doing as you agreed. * * *” “Now,” he says, “never mind, Ed.; there are so many breakdowns. I will get it done just as soon as I can, and put it on there. You go and attend to your work, and I will fix that up.”' Plaintiff was injured four or five days after this last promise to remedy the defect. Plaintiff says he relied, upon these promises, and because of them continued to work.

Counsel for defendant say the case is within Hayball v. Railway Co., 114 Mich. 135, and the verdict for defendant should stand. There is language used in the opinion which tends to support this claim. It was not, however, necessary to use it in disposing of the case. A comparison of the facts in that case with the facts in the case at bar will show a very great difference in them. The rule of law which should control as to this feature of the case is well stated in Mann v. Railway Co., 124 Mich. 641, and, if there is any conflict in the statement of the rule between the last-named case and Hayball v. Railway Co., the case of Mann v. Railway Co. should control. We think the testimony offered on the part of the plaintiff brings this case within Mann v. Railway Co., and cases cited therein. See, also, Illinois Steel Co. v. Mann, 40 L. R. A. 781 (170 Ill. 200), and the many cases cited in the notes to said case.

As to the injury received because the belt parted, the testimony disclosed that the ends of a new belt needed to be fastened together before it could be used to run the planer. The plaintiff undertook to do this work, and intended to-fasten the belt by lacing it; but, when he went to the room where the leather from which the laces were cut was usually kept, he found it had all been used. He then went to the foreman and asked for lacing, telling him he did not want to use the rivets. The foreman told him they were out of the lacing material and to use the rivets. This is substantially all that occurred between him and the foreman. He says he did not desire to use the rivets, because he preferred to put in the lace leather. No other representations were made to him by the foreman. There is nothing in his testimony that indicates a lack of knowledge with reference to the manner in which the belt was fastened, nor that any representations were made to him to lead him to suppose that the belt would be fastened in any other way than it was. As to this feature of the case he must be deemed to have assumed the risk.

For the reasons stated, the judgment is reversed, and a new trial ordered.

Carpenter, C. J., and McAlvay, Blair, Montgomery, Ostrander, and Hooker, JJ., concurred. Grant, J., took no part in the decision.