text:
    PEOPLE v. CASE.
    1. Bastards — Legutimaoy—Husband and Wife.
    A child born in lawful wedlock will be presumed to be legitimate.

    2. Same — Evidence—Presumptions.
    The presumption is very strong and may be overcome only upon convincing proof; and the testimony of husband and wife as to nonaocess is incompetent.
    3. Same — Adultery—Burden of Proof.
    Evidence of adultery committed by the wife at or about the commencement of the period of gestation is insufficient to overcome the presumption.
    4. Same — Evidence.
    Evidence that the husband of complaining witness in bastardy proceedings was in jail until 253 days before the birth of a child, that the wife committed adultery with respondent about 268 days before birth, that the minimum period of gestation is 240 days, the average 273 days, and the maximum 300 days, is not sufficient in the face of the presumption that the husband had access to his wife during the first thirteen days after he was liberated, to warrant a verdict of guilty.

    Certiorari to Ionia; Davis, J.
    Submitted June 13, 1912.
    (Docket No. 129.)
    Decided July 11, 1912.
    Fred Case was found by the verdict of a jury to be the father of an alleged illegitimate child.
    Reversed and respondent discharged.

      Alfred B. Locke, Prosecuting Attorney, for the people.

      James Scully, for respondent.

       As to presumption of legitimacy of child born in wedlock, see note in 10 L. R. A. 662.

       Admissibility of declaration by, or testimony of, husband or wife as to nonaccess of husband, see notes in 2 L. R. A. (N. S.) 619, 14 L. R. A.,(N. S.) 544.

   Bird, J.

As a result of certain statutory proceedings had in the Ionia circuit court, the respondent was adjudged to be the father of the bastard child of one Nancy Osborn. The proceedings were instituted at the suggestion of the supervisor of the township of Boston, in which township complainant resided, on the theory that, if the child should live, it would be a charge upon the public.

Nancy Osborn was, at the time of making the complaint, a married woman 38 years of age and the mother of six children. It was her claim that she was begotten with child by respondent on the 30th day of September, 1910, while she was engaged as a domestic in the home of respondent’s father. At this time her husband, Harry Osborn, was serving a term in the county jail for a failure to support her and the children. The respondent denies the paternity of the child,, and insists that the trial court was in error in admitting the testimony of Nancy Osborn and in submitting the case to the jury, as there was no competent testimony upon which they could find that he was the father of the child.

Nancy Osborn testified, in substance, that on the night of September 30, 1910, respondent had sexual intercourse with her; that she was just getting over her monthly period; and that it did not occur again until after the child was born, which occurrence took place 268 days thereafter, on June 25, 1911. It was also shown that Harry Osborn served a term in jail commencing on August 11 and ending on October 15,1910, and that after he was released he worked at Stafford’s in Ionia and boarded at the American House. The proprietor testified that there were days when he was not there, but he had no record of the dates when he was away.

It was shown by medical experts that the maximum period of gestation is 300 days, and the minimum 240 days, and the average 273 days. If the husband was released from jail on October 15th, he had his liberty 253 days before the birth of the child. Counting tlie minimum period of gestation as 240 days, it would leave 13 days in which, according to the laws of nature, he could have been the father of the child. The record is silent as to whether he saw and had access to his wife during that period.

The rule that a child born in lawful wedlock will be presumed to be legitimate is as old as the common law. It is one of the strongest presumptions in the law. The ancient rule made the presumption conclusive, if the husband was within the four seas. The modern one permits the presumption to be overcome, but only upon proof which is very convincing. The presumption cannot be overcome by testimony of either the husband or wife that sexual intercourse did not take place between them during the period when such child must have been begotten. Smith v. Henline, 174 Ill. 184 (51 N. E. 227); Wallace v. Wallace, 137 Iowa, 37 (114 N. W. 527, 14 L. R. A. [N. S.] 544, 126 Am. St. Rep. 253, 15 Am. & Eng. Ann. Cas. 761); Bowman v. Little, 101 Md. 273 (61 Atl. 223, 657, 1084); Canaan v. Avery, 72 N. H. 591 (58 Atl. 509); Egbert v. Greenwalt, 44 Mich. 245 (6 N. W. 654, 38 Am. Rep. 260).

The law with reference to the questions here involved is well stated by Mr. Justice Orton in Mink v. State, 60 Wis. 583 (19 N. W. 445, 50 Am. Rep. 386):

“ The law is well settled that the wife, on the question of the legitimacy of her children, is incompetent to give evidence of the nonaccess of her husband during the time in which they must have been begotten. This rule is founded on the very highest grounds of public policy, decency, and morality. The presumption of the law is in such a case that the husband had access to the wife, and this presumption must be overcome by the clearest evidence that it was impossible for him, by reason of impotency or imbecility, or entire absence from the place where the wife was during such time, to have had access to the wife, or to be the father of the child. Testimony of the wife even tending to show such fact, or of any fact from which such nonacess could be inferred, or of any collateral fact connected with this main fact, is to be most scrupulously kept out of the case, and such nonaccess and illegitimacy must be clearly proved by other testimony.”

It has also been held that the presumption of legitimacy of a child born in lawful wedlock is so strong that it cannot be overcome by admissions by the wife of her adultery while cohabiting with her husband. Grant v. Mitchell, 83 Me. 23 (21 Atl. 178); Hemmenway v. Towner, 1 Allen (Mass.), 209; Scanlon v. Walshe, 81 Md. 118 (31 At], 498, 48 Am. St. Rep. 488). And evidence of the adultery of the wife at or about the commencement of the period of gestation is not sufficient to overcome the presumption. Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375; Cross v. Cross, 3 Paige (N. Y.), 139 (23 Am. Dec. 778).

The record does not disclose whether Harry Osborn saw and had access to his wife during the period of 13 days in which he might have become the father of the child. In the absence of any proof on the subject, the law will presume that he did have such access (1 Jones on Evidence, § 93) and that he is the father of the child. •This presumption, as we have seen, is not rebutted by the fact that she had intercourse with, another, because that does not prove nonaccess by the husband. The testimony of Nancy Osborn that she had connection with the respondent is upon authority admissible. 1 Jones on Evidence, § 97. But whatever force it may have in showing that the respondent is the father of the child is outweighed in this case by the presumption of legitimacy. We are of the opinion that there was not sufficient testimony tending to rebut the presumption of legitimacy to make a question of fact for the jury.

The finding of the trial court will be reversed, and the •respondent discharged.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    PEOPLE v. LALONDE.
    1. Criminal Law — Trial—Witnesses—Jury—Sheriff—Interest of Officer — Talesmen.
    The sheriff whose name was indorsed upon an information as witness against respondent was not thereby disqualified to draw talesmen for the jury.
    2. Same — Public Officers — Intoxicating Liquors.
    Nor was it a ground of disqualification that he had detailed one of the deputies to investigate the sale of intoxicating liquors in the county, respondent being arrested as a result of the investigation.
    3. Evidence — Criminal Law — Certified Copy of Record —Internal Revenue Record.
    A duly certified copy of the record of the internal revenue collector, showing that respondent had paid the tax and had received a receipt therefor, was admissible in evidence. 34 U. S. Stat. 387 (U. S. Comp. Stat. Supp. 1911, p. 942); 3 Comp. Laws, § 10169.
    4. Intoxicating Liquors — Witnesses—Charge.
    The respondent was not entitled to have given a request that, because the deputy sheriff purchased liquors of respondent with a view to institute a prosecution, his credibility was affected and his testimony should be scanned more closely for that reason.
    5. Criminal Law — Reasonable Doubt — Charge.
    Refusal of the court to define a reasonable doubt, except by instructing the jury that it isa doubt which is reasonable, was. not reversible error.
    Exceptions before sentence from Cheboygan; Shepherd,. J.
    Submitted June 14, 1912.
    (Docket No. 138.)
    Decided July 11, 1912.
    Frank Lalonde was convicted of engaging in the retail liquor trade without procuring a license.
    Affirmed.

      David H. Orowley, Prosecuting Attorney, and Franz C. Kuhn, Attorney General, for the people.

      C. S. Beilley, for respondent.
   Bird, J.

The respondent was informed against for being engaged in the business of selling spirituous and intoxicating liquors without having first paid the tax required by law. His conviction followed, and the proceedings have been brought to this court for review.

The first assignment of error relates to the action of the trial court in permitting the sheriff to summon talesmen to complete the jury. The respondent objected to the sheriff taking any part in the formation of the jury on the ground that his name was indorsed on the information as a witness for the people. This question was decided adversely to respondent’s contention by this court in People v. Summers, 115 Mich. 537 (73 N. W. 818).

But it is argued that the sheriff was an interested witness because he detailed one of his deputies living in another part of the county to come to Cheboygan and investigate the so-called “soft drink” places such as respondent kept, which investigation resulted in respondent’s arrest. In making the investigation, if the sheriff did nothing unlawful and nothing inconsistent with his official duty, we cannot presume that he had any such personal or private interest in the prosecution as would disqualify him from acting officially.

The following certificate of the internal revenue collector was received in evidence over the respondent’s objection: •

“Office of Collector of Internal Revenue, “First Dist. Michigan.
“Detroit, Jan. 3rd, 1912.
“I, M. J. McLeod,, collector of internal revenue for the First District of Michigan, do hereby certify that the following is a true and compared copy of items on internal revenue record number 10, the said record being a record of special tax payers and registers required to be kept in the office of the collector of internal revenue, and for the fiscal year ending June 80, 1912, and of the whole thereof, opposite the name of Frank Lalonde, of Cheboygan, Michigan:
“Name.............................'Frank Lalonde
Business......................Retail Liquor Dealer
Place.......................Cheboygan, Michigan
Street Number................400 Mackinaw Street
From What Time.....................July 1, 1911
Date of Payment or Issue of Certificate.. July 6,1911
Serial No. of Stamp........................104236
[Seal] ’“M. J. McLeod.”

It is said that this certificate was incompetent for the reason that there was no showing that the record itself could not have been produced; it being located in Detroit and within the jurisdiction of the court. The record which was certified by the internal revenue collector was one which he is required to keep by the laws of the United States. He is also required to furnish certified copies of the same to the prosecuting officers of any State, county, or municipality making application therefor. Section 3240, Rev. Stat. U. S., as amended by act of June 21, 1906, chap. 3509, 34 U. S. Stat. 387 (U. S. Comp. Stat. Supp. 1911, p. 942.)

The record itself would have been admissible on the question of the respondent’s guilt (People v. Moore, 155 Mich. 107 [118 N. W. 742]), and we can see no reason why a certified copy of the record should not be admissible when certified in accordance with our statute for the admission of public records, where the removal of them from their usual place of custody would work an inconvenience to the public service. 3 Comp. Laws, § 10169. We think the trial court was not in error in admitting the certificate.

The trial court declined to charge the jury in accordance with the following request:

“ The fact that it is claimed liquor was purchased with a view to institute prosecution based upon the evidence of Ormsby is a circumstance which affects the credibility of Ormsby, and you should scan his testimony more carefully than you otherwise would.”

Counsel for respondent insists that this was error, citing the following cases in support of his argument: People v. Murphy, 93 Mich. 41 (52 N. W. 1042); People v. Curtis, 95 Mich. 212 (54 N. W. 767); People v. Rice, 103 Mich. 350 (61 N. W. 540); People v. Everts, 112 Mich. 194 (70 N. W. 430). An examination of these cases will disclose that the parties interested in doing the work were detectives who were outside of and in no way connected with the official force of the county, and in some of the cases cited the work was done with a promise and expectation» of a reward. The investigation was made in this case by one of the deputy sheriffs of the county whose duty it was, under the statute, to investigate and see that no unlawful sales of liquor were made, and there is no evidence that he was to receive anything more than his regular per diem fees, which, in any event, would be paid. We do not think the respondent was entitled to have the request given against one who, so far as the proof showed, was doing nothing inconsistent with his official duty.

The refusal of the trial court to give the respondent’s request upon the law of reasonable doubt as framed by him is assigned as error. Upon this question the court said to the jury that—

“ The people are bound to prove all these several elements, not by a preponderance of the evidence, not by testimony that weighs more heavily than the testimony of the defendant, as is the case in civil cases, but by testimony which is strong enough to convince you beyond a reasonable doubt. Some time ago I ceased endeavoring to explain to jurors what is meant by ‘reasonable doubt.’ Itcannot be made any plainer than that. It is a doubt which is reasonable.”

If we concede that the request as proffered was proper, it was not error for the trial court to refuse to give it as framed, if the question which it raised was substantially covered by the charge given. People v. Parsons, 105 Mich. 177 (63 N. W. 69).

A further complaint is made in this connection that the court did not sufficiently explain to the jury the meaning of reasonable dou.bt. In People v. Stubenvoll, 62 Mich. 329 (28 N. W. 883), a similar complaint was made. In passing upon it, the court said:

“ We do not think that the phrase ‘reasonable doubt* is of such unknown or uncommon signification that an exposition by a trial judge is called for. Language that is within the comprehension of persons of ordinary intelligence can seldom be made plainer by further definition or refining. All persons who possess the qualifications of jurors know that a ‘ doubt ’ is a fluctuation or uncertainty of mind arising from defect of knowledge or of evidence, and that a doubt of the guilt of the accused, honestly entertained, is a ‘reasonable doubt.’”

The instruction given by the court sufficiently covered the question of reasonable doubt, and he was in no error in refusing to further define it.

We have examined the other errors assigned, but see nothing in them calling for a new trial. The conviction is affirmed, and the trial court will proceed to judgment thereon.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair, J., did not sit.


author: Brooke, J.

text:
    ARMSTRONG v. MARTIN.
    1. Brokers — Vendors and Purchasers — Fraud.
    In an action by brokers for their commissions on securing a purchaser for defendant’s farm, which he offered to sell for $9,000, payable $1,000 down and $500 a year, inclusive of interest at six per cent., the contract was not so unconscionable or fraudulent because of the small initial and subsequent annual payments, and by reason of the fiduciary relations of broker and principal, that the plaintiffs were barred from recovering.

    2. Same — Offer and Acceptance — Contracts.

      12eld, that a written offer, followed by a counter proposition signed by defendant and accepted by an intending purchaser, constituted a binding contract to sell the farm.
    3. Same.
    Having found a purchaser ready, willing, and able to purchase the property, the brokers were entitled to their commission.
    Error to Kent; Clink, J., presiding.
    Submitted June 11, 1912.
    (Docket No. 71.)
    Decided July 11, 1912.
    Assumpsit by William B. Armstrong and another against James Martin for brokers’ commissions. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      Benn M. Corwin, for appellants.

      Lombard, Hext & Washburn, for appellee.

       Asto performance by real estate broker of his contract to find a purchaser for, or effect an exchange of, his principal’s property, see note in ¿4 L. R. A. 593.

   Brooke, J.

Action in assumpsit, brought to recover a real estate commission. The contract was in writing, as follows:

“Grand Rapids, Mich., Oct. 29th, 1910.
“I hereby authorize and appoint Armstrong & Co. to act as my agents in the sale of the within described property, and it is expressly understood and agreed that if the same is sold or disposed of while they are acting as such agents, they shall be entitled to a commission of 5 per cent, of the price received for said property, as compensation for their services. Agency to terminate upon thirty days written notice from me. It is agreed that cancellation of this contract shall not deprive the agents of their commission if a sale is made to one of their former custoni6rs«
[Signed] “James Martin. [L. S.]”

After the execution of the contract various conferences were had between plaintiff and defendant. Plaintiff testified:

“ Mr. Martin came into our office afterwards, and talked with me in regard to the sale of this property. I couldn’t say how many times he was there between the 29th day of October and the 2d day of December, 1910. He was there several times. At those different times when he was there we had conversation in regard to the sale of the property, and he stated what he would be willing to take and what terms he would be willing to sell the farm on. Mr. Martin stated to me that the present arrangements in regard to his farm were very unsatisfactory, that his tenant was unsatisfactory, and he was getting very little returns from the farm, and would be willing to sell the farm on most any terms in order to get the money out at interest. He further stated to me $500 a year would be sufficient for him to live on, and, if he could get the farm sold, he would be willing to have the interest only as an income. He said he wanted to get this money to drawing interest. He told me he was getting $300 a year rent, as I remember, and had to pay the taxes and insurance. There were some potatoes and apples that he got each year; got apples when there was any.”

On December 2, 1910, plaintiff secured the following written offer:

“Grand Rapids, Mich., December 2, 1910. “Mr. James Martin,
“No. 63 Pleasant St., City.
“Dear Sir: I hereby offer through your agents, ‘Armstrong & Co.,’ the sum of nine thousand ($9,000) dollars for your farm of eighty acres, located in Paris township. Payments on same to be made as follows: Five hundred (500) dollars cash in hand, and five hundred (500) dollars April 1st, 1911, when I take possession of farm, and five hundred (500) dollars or more, including interest at the rate of 6% each year thereafter, until principal sum of nine thousand (9000) dollars has been paid.
“ Respectfully subscribed,
[Signed] “M. J. Van den Berge.”

This proposition was submitted to defendant, who on the following day made a counter proposition:

“Grand Rapids, Mich., Dec. 3rd, 1910. “M. J. Van den Berge,
“City.
Dear Sir:
“I will accept your offer of the 2nd inst. for my farm of eighty acres in Paris Township according to your terms, .excepting rate of interest which must be 6%. I also will give you the following farm tools: i lumber wagon, 1 market wagon, 3 hand cultivators, 1 Oliver plow, 1 new Silo, now in barn, 1 McCormick Grain-Binder, 1 Cream Separator, and all other personal property of mine now on the farm.
[Signed] “James Martin.
“ M. J. Van den Berge.”

This offer was accepted by Van den Berge on the same day; his acceptance thereof being indicated by his signature. Later a land contract in the usual form was prepared by plaintiffs, and submitted to defendant for his signature. This the defendant refused to execute.

Plaintiff offered the testimony of Van den Berge to the effect that he was willing and abundantly able to carry out the contract. At the conclusion of the plaintiff’s case, the court upon his own motion directed a verdict in favor of defendant. He said in part:

“But that is not this case. Up to the 3d day of December there were no conditions and terms that would fasten anybody or bind anybody. Now, on the 3d day of December the two principals undertook to make an agreement. They failed. That is the view the court has. Now, that is not the only view that I have, and I am stating my views so that, if I am wrong, you shall have an opportunity now to correct the court, or show the court that it is wrong. I would just as lief overrule myself as have somebody else do it, if they can show me; but I will have to be shown. Now, another branch of this case that appeals to the court is this: The parol proof which the court admitted immediately after the noon recess, the determination of which was pending when we took our recess, is admitted under much doubt; but, in view of the way I felt about the case, I decided to admit that testimony, and see what it would develop. Now, with reference to it, if all that you claim is legally established with reference to the facts, you were compelling this defendant to take a contract by which a $9,000 farm was sold on conditions under which he could only enforce the payment of $20 a year upon the principal of $9,000. It would take five years to get $100 of principal. It would take 50 years to get $1,000 of principal. Eight times 50 would be 400! In the judgment of this court, in view of the fact that these agents occupied a fiduciary relation to this defendant and were bound to procure for him a rational deal at least, that sort of a contract, in the judgment of this court, would be a fraud in law. I do not mean by that that the plaintiffs were dishonest and intended to commit any fraud, but I mean it would be a fraud in law against this defendant, and no court could sanction it. I have no doubt in my own mind but what the defendant is sane. I do not know whether he is or not. The law presumes he is a sane man. If he is sane, I have no doubt but what the defendant believed and understood that he was to receive a payment of $500 a year besides the interest. Even that, the men who have any experience in dealing in real estate, if we exercise our common sense and judgment, we know the fact it would be a most meager payment upon a $9,000 farm at least; a most meager payment, if he got $500 a year besides the interest.”

"We are compelled to disagree with the learned circuit judge. He says the parties failed to make an agreement. We think the evidence in the case conclusively establishes the contrary.

Nor do we agree that the contract as entered into was a fraud in law, irrational, or unfair. A cash payment of $1,000 upon a purchase price of $9,000 is not, in our opinion, either inadequate or unusual. The- payment of the balance of $8,000 in sums of $500 per year or more, including interest, would, it is true, consume some 55 years in its extinguishment, provided that $500 only was paid each year. Such contracts, however, are not unusual. Each year the contract security would become more valuable, and the contract itself more readily salable. In any event, this is the contract defendant made, and his circumstances may have justified him in desiring to put his farm into what may be regarded, as, in a sense, a permanent investment. It is clear that, by the terms of the contract, he would not only receive cash to the amount of $1,000, but his annual income would be practically doubled, while his security under a contract properly protecting his rights as vendor (which was tendered) would remain absolute.

There is not a word of testimony in the record tending to show that defendant believed and understood that he was to receive $500 per year besides the interest; indeed, the evidence shows exactly the converse.

It is not necessary to cite authority to the effect that, when the broker finds a purchaser ready, willing, and able to complete the purchase upon terms agreeable to the vendor, he is entitled to his commission.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Steere, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


author: Beooke, J.

text:
    PATTERSON v. CARREL.
    1. Landlord and Tenant — Breach oe Conditions — Waiver-Lease.
    By aocepting rent from assignees of a lease containing a clause prohibiting subletting, the landlord waives his right to rely on the breach of the condition.
    2. Same — Assignment—Restrictions.
    And permitting the assignees to make repairs operates as a waiver.
    3. Same — Vendor and Purchaser — Summary Proceedings.
    The vendee of rights of such landlord is bound by his waiver, though the vendee accepts additional rent upon the express stipulation that he does not waive the breach thereby.
    Error to Berrien; Bridgman, J.
    Submitted June 12, 1912.
    (Docket No. 89.)
    Decided July 11, 1912.
    Summary proceedings by Thornton E. Patterson and another against Ivan Carrel, by his guardian ad litem, for possession of certain demised premises. From a judgment of the commissioner for complainants, defendant appealed to the circuit court. Judgment for defendant upon a directed verdict. Complainants bring error.
    Affirmed.

      Cady & Andrews, for appellants.

      Charles H. Kavanagh, for appellee.
    In this action complainants seek to recover the possession of certain premises by summary proceedings under the statute. It appears that one Mars (grantor of complainants) on December 28,1910, leased the premises in question for a period of three years from January 15, 1911, to Merle R. Castner, who conducted a confectionery store and ice cream parlor therein. The lease contained a covenant against subletting without the written assent of the lessor. It also provided—

      “ That, if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to have certain attorney, heirs, representatives and assigns, to re-enter into and repossess the said premises, and the said party of the second part, and each and every other occupant to remove and put out.”
    On August 17,1911, defendant purchased from Castner the stock and fixtures of the retail business theretofore run by Castner in said building. The record does not show any assignment of the lease, either written or verbal, from Castner to Carrel, but, after Carrel’s purchase and after he went into possession of the premises, Mars recognized him as his tenant, accepted rent from him, and permitted him to expend money in repairs upon the premises.
    On September 30, 1911, Mars sold the premises to complainants, who, upon the same day, notified Carrel to quit and surrender possession. Carrel remained in possession, and on November 2d paid the rent from October 1st to November 1st to complainants, who gave him a receipt for the same, in which it was specified that the acceptance of rent should not be considered as a waiver of the right to dispossess. Carrell. On November 4, 1911, this proceeding was launched.
    The case having reached the circuit court, a verdict of “not guilty’’was directed, upon which judgment was duly entered. Complainants appeal.
   Beooke, J.

(after stating the facts). Assuming that there was a breach of the covenant against subletting without the written consent of the lessor (which does not clearly appear from the record), the question arises whether the landlord, Mars, after notice of the alleged breach, by his conduct in accepting rent from the new tenant and permitting him to expend money in repairs, waived his right to insist upon forfeiture under the terms of the lease ?

The rule is laid down in 24 Cyc. p. 970, as follows:'

“If the lessor, with notice of a breach of the restriction against assigning, permits the assignee to remain in possession and accepts subsequently accruing rents from him, the breach is waived.”

This rule is abundantly supported by the authorities cited in note 42 tó the text. See, also, Batley v. Dewalt, 56 Wash. 431 (105 Pac. 1029); Conger v. Duryee, 90 N. Y. 594; Gulf, etc., R. Co. v. Settegast, 79 Tex. 256 (15 S. W. 228); 18 Am. & Eng. Enc. Law (2d Ed.), pp. 382 and 386.

If the lessor after notice of the breach permits the assignee to expend money in repairs upon the leased premises, the breach is waived. E. H. Powers Shoe Co. v. Odd Fellows Hall Co., 133 Mo. App. 229 (113 S. W. 253); Moses v. Loomis, 156 Ill. 392 (40 N. E. 952, 47 Am. St. Rep. 194). See, also, Barrie v. Smith, 47 Mich. 130 (10 N. W. 168).

The act of the lessor in waiving the alleged breach is binding upon his vendees, the complainants (Stoddard v. Gallagher, 133 Mich. 374 [94 N. W. 1051]), even though they by their own act in accepting rent and giving a conditional receipt therefor did not waive. Upon this point, see 24 Cyc. p. 1363, and note.

Under the undisputed facts and the applicable law, the verdict was properly directed. The judgment is affirmed.

Moore, C. J., and Steers, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


text:
    BECHERL v. PLUTCHAK.
    1. Logs and Logging — Liens—Statutes—Description.
    Under the log-lien act (3 Comp. Laws, § 10758), description of lumber in plaintiff’s statement of lien as “700,000 feet of maple, beech, elm, and basswood lumber,” situated in the county of Menominee, etc., in connection with the affidavit for attachment which more specifically stated the location and identified the timber so that the officers serving the writ attached the proper lumber, was definite enough to sustain plaintiff’s lien for labor performed upon it.'
    2. Same — Application op Payments.
    Where plaintiff claimed §174.94 including $77.75 for his wife’s services as cook, omitting in the statement of lien and in the ' affidavit for the writ to specify any sum for the services of a cook, and where plaintiff testified that he paid his wife all that he owed her, claiming to have received $87.78 from the contractor, and claiming the balance due as for his work, which the statement mentioned, he was entitled to - recover the sum remaining due for his labor.
    3. Same — Contract Price — Work, Labor and Services.
    The lienor, under the log-lien act, is not limited to the contract price for the labor that he performs on the lumber, but may recover the actual value of his services without respect to the sum agreed upon between owner and contractor: the owner is chargeable with the duty of knowing that his contract price represents a sum at least sufficient to pay for all labor and that no more than the value of labor already performed is paid to the contractor.
    Error to Menominee; Elannigan, J.
    Submitted June 14, 1912.
    ( Docket No. 146.)
    Decided July 11, 1912.
    Attachment by Charles Becherl against Gustave Plutchak for the enforcement of a lien for labor against logs, etc. Samuel Crawford and others, copartners, doing business as S. Crawford & Sons, intervened. Judgment for plaintiff. Said interveners bring error.
    Affirmed.

      W. F. Waite, for appellants.

      George Barstow, for appellee.

      This is an action of attachment under Act No. 229 of the Public Acts of 1887 (3 Comp. Laws, §§ 10756-10-799) to enforce a claim in the sum of $87.78 for labor performed by plaintiff on some lumber belonging to the defendants, doing business as S. Crawford & Sons, a copartnership. The labor was performed under a contract made by plaintiff with Plutchak, the principal defendant, by the terms of which plaintiff agreed to furnish his own labor in wheeling and shoving lumber, and his wife’s labor in cooking for men employed on the work. The agreed compensation to plaintiff for the services of both was $2.25 per day. There is no dispute that the labor was performed as claimed, nor is it disputed that as between plaintiff and Plutchak the balance due plaintiff is as claimed, $87.78. The contract between Plutchak and S. Crawford & Sons provided for the payment by the latter to the former of $4 per thousand feet for all lumber sawed. S. Crawford & Sons offered testimony tending to show that the total amount earned by Plutchak under his contract was about $2,000, and that at the time plaintiff’s lien was filed they had paid out for labor performed on the lumber a total of $2,677. The case was commenced in the justice’s court, and upon appeal to the circuit court judgment was entered in favor of plaintiff for the full amount of his claim. The owners of the products have appealed.
    Counsel for appellants state that the following questions are involved:
    “(1) Was the description of the property in the statement of lien filed, sufficient to continue the lien beyond the 30 days from the date of the last day’s labor ?
    _ “(2) Can a judgment be given against property for a kind of labor not mentioned in the statement of lien filed; i. e., can a lien be given for cooking when cooking is not mentioned in the statement of lien ?
    “(3) Did the statute give the husband a lien for the services of his wife at the time this labor was performed ?
    “(4) Where a contractor enters into a contract with the owner of saw logs to saw the logs into lumber, and the owner pays claims for labor performed in sawing the lumber up to the contract price for sawing, can a labor Wlftim in excess of the contract price be enforced as a lien against the lumber worked on? And, if the manufactured lumber is not liable for the labor in manufacturing in excess of the contract price, must the owner see that the contract price is prorated at his peril ?
    “ (5) Can the owner of the forest product, being manufactured by a contractor, pay labor claims as they become due to protect his property from lien attachments without making his lumber liable beyond the contract price ?
    “ (6) The evidence shows that the entire contract price for the sawing was $2,000. The labor bills, including the lien claim in question, amounted to $2,664.78. Then the contract price of sawing the lumber was a little less than 73 per cent, of the labor. Seventy-seven and three-fourths days (the time which the plaintiff testified that he and his wife worked) at $2.25 per day amount to $174.94, of which the plaintiff admits receiving all but $87.78, or $87.16. If the plaintiff was entitled to 73 per cent, of $174.94, he should have received $127.69 less $87.16, which he has drawn, or $40.53. If then the labor exceeds the contract price between the owner and the contractor, this plaintiff under any circumstances is not entitled to a lien in excess of $40.53.”
   Brooke, J.

[after stating the facts). We will consider the questions raised in their order. (1) The statement of lien describes the property as “about 700,000 feet of maple, beech, elm, and basswood lumber * * * and the said described property, or a portion thereof, is now situated in the county of Menominee, State of Michigan.” The affidavit which 3 Comp. Laws, § 10763, requires to be annexed to the writ of attachment and the writ itself, described the property as follows:

“ About 700,000 feet of maple, beech, elm and basswood lumber (the same being lumber that was sawed by Gustave Plutchak for S. Crawford ’& Sons and now piled near said Plutchak mill in Cedarville township) in the county of Menominee.”

Service of writ and affidavit is required by the statute. Section 10766. It is not claimed by the defendants that the alleged indefinite description resulted in the seizure of the wrong property. As was said by the learned circuit judge in passing upon this point:

"The proceedings subsequent to the filing of the statement of lien indicate that the officers and owners encountered no difficulty in coupling the property described in the statement of lien with the lumber upon which the plaintiff and his wife performed the labor for which the lien is claimed.”

The statute (section 10758) which gives a form for the statement to be filed lays down no rules to be followed in describing the product or property upon which the lien is claimed. The description would appear to be sufficiently accurate and certain if therefrom the officer executing the writ and the owner upon whom it is served can readily identify the property. A very similar description in a writ of attachment under this statute was held to be sufficient in Dillon v. Howe, 98 Mich. 168 (57 N. W. 102), citing Sexton v. McDowd, 38 Mich. 148.

(2, 3) The statement of lien, as well as the affidavit and writ, recites that the lien is claimed "for work and labor performed by Chas. Becherl in wheeling and shoving the following described property,” etc. No mention is made of the wife’s services as cook, nor are the owners advised that any claim is urged in her behalf. The earnings of plaintiff and his wife during the whole period of labor amounted to $174.94, of which plaintiff received $87.16. Regarding this money, plaintiff testified:

“I gave her the money every time I got an order drawn out. I gave her the money. I gave her all.”

The total number of days during which plaintiff and his wife worked was 77£. As between plaintiff and his wife, plaintiff testified he agreed to allow her $1 per day. If his testimony regarding the payment to her of the $87.16 is true (and it stands uncontradicted), then she was fully paid, and the balance was due plaintiff alone for his labor. Plaintiff further testified in terms that the $87.78 was due him for his labor in shoving lumber.

(4, 5, 6) The learned circuit judge upon this point held:

“Assuming the facts regarding the total amount earned by Plutchak for sawing and the total amount paid out for labor to be as claimed by the owners, the plaintiff, nevertheless, would be entitled to a lien for a part of his claim under Federspiel v. Johnstone, 87 Mich. 303 [49 N. W. 581], but for how much of his claim he would be under those conditions entitled to a lien we are unable to exactly determine from any figures furnished by the owners. But that Plutchak, the contractor, was overpaid or paid in full does not satisfactorily appear. Whether he was paid in full depends on the quantity of lumber sawed. The only evidence produced by the defendants was Mr. David Crawford, one of the owners. He testified that up to the time of the trial the lumber sawed for them by Plutchak had not been scaled, and his claim that Plutchak was overpaid is based solely on an estimate of the quantity of the lumber in the Plutchak piles which they ‘ got. ’ Mr. Crawford does not claim he made the estimate. The inference to be drawn from his testimony is that it was made by some other person and sent or brought in to the owners, the person who made the estimate was not produced, and we have no means of determining whether or not the estimate was correct or even approximately so. Nor is it entirely clear that all of the money paid by the owners to Plutchak was in fact for labor. In settlements for labor orders appear to have been drawn by Plutchak on S. Crawford & Sons. These orders were passed upon by the witness David Crawford, and, when found correct, he drew the firm check in payment therefor, but it seems the only method employed to ascertain the correctness of the order was to check the order with the time book kept by Plutchak. Whether the orders were in every case for labor actually performed in the manufacturing of the lumber, and whether the Plutchak time book was correct and honestly kept, Mr. Crawford did not pretend to know or say, and Mr. Plutchak was not called. The position of counsel for the owners that the burden is on the plaintiff to show the condition of the accounts between the owners and the contractor to be such as to entitle him to a lien is not correct. Where the owner seeks to relieve his property in whole or in part from the lien of the laborer on the ground he has paid in full or overpaid his contractor, the burden is on him to establish that fact.”

We are of opinion that in so holding a correct result was reached, but believe a better reason for that result may be found in the statute itself. The law establishes a .lien in favor of the laborer limited only by theámount due for such labor or service. In this it differs from the mechanics’lien law, which limits the lien.to the contract price. Defendants rely upon the case of Federspiel v. Johnstone, 87 Mich. 303 (49 N. W. 581), where it was said by Justice Morse :

“Under the log-lien law, the lien of the laborer does not depend upon the state of the accounts between the contractor for whom he labors and the owner of the logs. It was not intended that the owner could escape the lien that the law, under certain circumstances, places upon his logs or timber in favOr of those working thereon, by paying the contractor who hires them regardless of their claims. If such were the law, the intent of the statute might easily be defeated. The owner cannot be made liable for any amount more than he contracts to pay for the getting out of the logs, or any other labor to be performed upon them, but to the amount of such contract price he pays the contractor at his peril.”

We think the sentence last above quoted cannot be regarded as a correct statement of the law if it was intended as a holding that the owner could escape liability to one, under the protection of the statute, by showing that he had already paid out for labor more than the contract price. Such a showing would demonstrate one of two facts. Either the contract price would not represent the true value of the labor to be performed, or the amount actually paid for the labor would be in excess of its value. The laborer who performs his work for the benefit of the owner has no means of knowing that either course will be followed by the owner and contractor, nor of preventing it if he did know. He is assured by the statute that as to his labor he may be protected by a lien. We think the statute imposes upon the owner the duty of knowing that his contract price represents a sum at least sufficient to pay all labor, and the further duty of knowing that no more than the value of such labor is paid from time to time, in which event there can be no deficit. Any other construction would place it in the power of an owner and contractor in league with each other to render the statute nugatory. It may be said in conclusion that the sentence relied upon may be" regarded as dictum. The determination of the case did not rest upon that conclusion.

The judgment is affirmed.

Moore, C. J., and Steers, McAlvat, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


author: Per Curiam.

text:
    KINGSLEY v. KENT CIRCUIT JUDGE.
    Mandamus — Appeal and Error — Adequate Remedy — Capias ad Respondendum — Discharge.
    Mandamus does not run for the purpose of vacating an order discharging a defendant taken upon a capias; the remedy by writ of error is adequate.
    Petition by Mae L. Kingsley for a writ of mandamus to compel Willis B. Perkins, one of the Kent circuit judges, to vacate an order discharging one Mark B. Thompson from arrest on capias ad respondendum.

    Submitted June 4, 1912.
    (Calendar No. 25,104.)
    Writ denied July 11, 1912.

      Earl W. Munshaw and Louis T. Herman, for relator.

      Martin H. Oarmody, for respondent.
   Per Curiam.

This is an application for a writ of mandamus to compel the respondent to set aside an order made by him in a cause pending in the Kent circuit court upon the motion of one of the defendants therein, respondent thereby ordering and determining “that the said writ of capias ad respondendum and the order holding the said defendant Mark B. Thompson to bail indorsed thereon, and service thereof, be, and is hereby, dismissed as to said Mark B. Thompson,” and also the bail bond delivered for defendant’s appearance in said cause, and the special bail given was discharged and the sureties released.

It is contended on the part of the respondent that mandamus is not the proper remedy; that, the order being in effect a judgment, a complete and adequate remedy is open to plaintiff by writ of error. That this is the rule repeatedly held by this court is well settled. Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1), and cases cited. A careful study of the decision in this case is recommended. In no respect can the instant case be distinguished from it. The writ, the motion, and the order quashing the writ and the proceedings under it are identical. Relator has a complete and adequate remedy by writ of error.

The writ of mandamus is therefore denied.


text:
    GRAHAM v. GRAHAM.
    1. Appeal and Error — Questions Reviewable — Equity — Misjoinder — Multifariousness— Demurrer.
    A decision overruling a demurrer based upon the theory that the defendants were not jointly interested in the cause of action, and were improperly joined, was not reviewable on appeal, the demurrer being special.
    2. Estates of Decedents — Executors and Administrators — Accounting.
    The court properly overruled a demurrer to complainant’s bill which stated that defendants entered into an oral contract with decedent and operated her farm, performing all necessary labor thereon for $300 a year, that defendants, being husband and wife, took and applied to their own use money derived from the receipts of said farm, and the husband had settled his claim against the estate without coming to an account for the funds so expended or received by him and his wife.
    3. Same — Statutes—Set-off and Recoupment.
    3 Comp. Laws, §§ 9375, 9383, contemplate that unless reasons to the contrary exist, the representative of an estate shall setNoff claims of the estate against those of a claimant so that a final balance may be ascertained between the parties and needless litigation avoided.

      i. Same — Probate Courts.
    The probate court has exclusive jurisdiction over the settlement of estates of deceased persons, except when its remedies are inadequate or the peculiar remedies of equity are asked in aid of complainant’s cause of action.
    5. Same — Claims.
    But the statute does not contemplate that the administrator shall severa joint liability as to two persons for the purpose of setting off the claim of the estate as to one of them who presents his claim against deceased.
    6. Same — Adequate Remedy — Commissioners on Claims.
    Nor is the machinery provided by law for adjusting claims adequate to determine the equities of a relationship similar to or in the nature of a partnership.

      7. Same — Compromise and Settlement.
    Where complainant’s bill alleged that a settlement was made with the defendant husband without his accounting to the estate for money received by himself and wife under the oral contract, it could be shown on the hearing whether allowance was made for credits claimed in behalf of the estate.
    Appeal from Calhoun; North, J.
    Submitted June 17, 1912.
    (Docket No. 111.)
    Decided July 11, 1912.
    Bill by Romeyn Graham, administrator of the estate of Adeline P. -Graham, deceased, against Albert Graham and Salona Graham for an accounting. From an order overruling a demurrer to complainant’s bill, defendants appeal.
    Affirmed.

      Winsor & Miller and Stewart & Jacobs, for complainant.

      J. M. Hatch & Sons, for defendants.
    The bill of complaint in this case is filed by an administrator for the purpose of securing an accounting from the defendants relative to their business dealings with deceased during a long term of years prior to her death. The defendants are husband and wife; Albert Graham being a son of the deceased, Adeline P. Graham. The bill charges that defendants entered into a special oral agreement with the deceased many years ago, the tenor of which was that defendants should live with deceased upon her farm, perform all the necessary labor thereon, and care for and market the products thereof. For these services the defendant Albert Graham was to receive $200 per year, and Salona Graham was to receive $100 per year.
    The bill further charges the defendants jointly with having, since said agreement was entered into, received, taken, and applied to their own use large sums of money from the receipts and profits of said farm. It avers a fiduciary relationship between the defendants and the deceased, and, inferentially at- least, charges defendants with having fraudulently converted a large portion of the estate of deceased to their own use, and directly charges defendants with refusing upon demand to come to a full and fair accounting in respect to their fiduciary transactions. The bill further sets out that after the death of Adeline P. Graham on March 3, 1910, Albert Graham filed a claim against her estate under the oral contract aforesaid for $2,800, but that he afterwards compromised said claim for $1,100 without accounting to said estate for the moneys received and handled by him and Salona Graham. The prayer is for an accounting.
    To this bill defendants demurred for the following reasons:
    “(1) That it appears by the said bill that the same is exhibited against the defendants therein for distinct causes of action, in which they are not jointly interested, and that there is a misjoinder of parties defendant in said bill of complaint.
    “ (2) That the complainant has not in and by his said bill made or stated such a case as entitles him in a court of equity to any discovery or relief from or against these defendants touching the matters contained in said bill or any of such matters.
    “(3) That the complainant has a full, adequate, and complete remedy at law.
    “(4) That the complainant, as appears by the said bill of complaint, has availed himself of his remedy at law, and that all matters set forth in said bill of complaint have been settled and adjusted.
    “ (5) That the complainant has not in and by his said bill shown any right or title whatever to compel these defendants to interpléad.”
    The demurrer having been overruled, defendants appeal.
   Brooke, J.

(after stating the facts). The first ground of demurrer may be dismissed by saying that the point urged, that of multifariousness, is special rather not be appealed from. Kerr v. Rupp, 144 Mich. 269 (107 N W. 1059); Case v. Longyear, 168 Mich. 484 (184 N. W. 459).

2. We think it can scarcely be claimed that the bill does not set out facts which warrant the interposition of equity. It was said by this court in Tompkins v. Hollister, 60 Mich. 470 (27 N. W. 651):

“And especially does equity take cognizance of a case where one holding confidential and fiduciary relations to another, and thereby morally and legally bound to communicate facts, conceals them for his own benefit and profit, and to the disadvantage of the other.”

See, also, Darrah v. Boyce, 62 Mich. 480 (29 N. W. 102); Harper v. Corcoran, 166 Mich. 474 (132 N. W. 106).

3. Has the complainant a full, adequate, and complete remedy at law? 3 Comp. Laws, § 9375, provides:

“When a creditor against whom the deceased had claims shall present a claim to the commissioners, the executor or administrator shall exhibit the claims of the deceased in offset to the claims of the creditor, and the commissioners shall ascertain and allow the balance against or in favor of the estate, as they shall find the same to be; but no claim barred by the statute of limitations shall be allowed by the commissioners in favor of or against the estate, as a set-off or otherwise.”

This section must be read in connection with 3 Comp. Laws, § 9383, which follows:

“Nothing in this chapter shall be construed to prevent an executor or administrator, when he shall think it necessary, from commencing and prosecuting any action against any other person, or from prosecuting any action commenced by the deceased in his lifetime, for the recovery of any debt or claim, to final judgment, or from having execution on any judgment.”

There is no doubt that the statute contemplates that wherever it is practicable, or unless there is reason to the contrary, the representative of an estate will set off claims of the estate against those of the creditor, so that a final balance may be ascertained between the parties and needless litigation avoided. Green v. Eaton Probate Judge, 40 Mich. 244; Shelden v. Walbridge, 44 Mich. 251 (6 N. W. 681); Westra v. Estate of Westra, 101 Mich. 526 (60 N. W. 55).

It is equally clear that the probate court has exclusive jurisdiction over the settlement of estates of deceased, except when its remedies are inadequate or the interposition of equity is necessary for some auxiliary purpose. Nolan v. Garrison, 156 Mich. 397 (120 N. W. 977); Davis v. McCamman, 165 Mich. 287 (130 N. W. 691). It must be borne in mind that the bill in the instant case charges a joint liability on the part of the defendants to the estate. We do not think it was contemplated by the statute to compel a representative of an estate to sever a joint action for the purposes of set-off against the claim of a creditor. Suoh a course would often be difficult and sometimes impossible. The case at bar furnishes a good illustration of the difficulty attending such a course. Between the deceased and the defendants there existed a relationship somewhat resembling a partnership. The machinery of a tribunal consisting of commissioners on claims is inadequate for the purpose of properly adjusting the equities in such a relationship. Elder's Appeal, 39 Mich. 474. Moreover, it is alleged that all the evidence of the dealings between deceased and defendants is in the possession of the defendants. The difficulty the representative of the estate would encounter in exhibiting his claim of set-off under such circumstances will be. readily appreciated.

4. It is the claim of defendants that the bill shows that complainant has already litigated the matters in question, at least as against Albert Graham, and that the whole matter as to him has been settled and adjusted.

The contrary is alleged in the bill. It is there charged (and it is admitted by the demurrer) that Albert Graham accepted the settlement of $1,100 for his claim without accounting to said estate for the moneys received and handled by himself andhis wife. We do not understand the bill attacks this settlement. If in said settlement defendant made any allowance for or on account of the claims now made by the estate against him, that fact can be miade fully to appear in the chancery hearing.

5. The last ground of demurrer does not require discussion beyond what has been hereinbefore said. While, in the settlement of estates, the aid of equity may be invoked only where the remedy at law is clearly inadequate, we are of the opinion that such a case is made out by the averments of this bill of complaint as to warrant its assumption of jurisdiction.

The decree is affirmed, and defendants are allowed 20 days in which to answer.

Moore, C. J., and Steere, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J„, did not sit.


text:
    LONGE v. KINNEY.
    1. Witnesses — Evidence —Estates op Decedents — Principal and Agent — Agent’s Testimony Equally Known to Decedent.
    It was incompetent, as against the estate of a deceased person, for a trustee of land which he conveyed by an absolute deed to decedent, and which he previously held in trust for a third party who consented to the transaction, to testify that decedent took the land subject to the trust impressed upon the property, agreeing to carry out its provisions as to the beneficiary, the witness having acted as the agent and attorney of the grantee. Act No. 30, Pub. Acts 1903; 3 Comp. Laws, § 10212.

      2. Evidence — Deeds—Parol Contradictory Testimony.
    In the absence of fraud, mistake, or accident, a grantor in an absolute conveyance, reciting a valuable consideration, cannot show by parol evidence that the grantee was to hold the lands conveyed in trust. 2 Comp. Laws, § 8849.
    3. Same.
    Parol evidence is inadmissible to contradict the unambiguous terms of a deed.
    4. Same.
    Nor could the alleged trust be created by parol, under 3 Comp. Laws, § 9509.
    5. Limitation of Actions — Payment—Laches—Evidence — Presumption of Payment.
    Delay of 21 years before attempting to enforce payment of a debt gives rise to a presumption of payment.
    Appeal from Ionia; Davis, J.
    Submitted June 17, 1912.
    (Docket No. 125.)
    Decided July 11, 1912.
    Bill by Nellie Longe against Will Kinney, administrator de bonis non with the will annexed of the estate of Mary O’Day, deceased, and others, to enforce an alleged trust. From a decree for complainant, defendants appeal.
    Reversed; bill dismissed.

      B. A. Hawley, for complainant.

      Scully & Davis, for defendants.
    On July 19, 1889, Patrick O’Day made his last will and testament, the material provisions of which are as follows:
    “I hereby give, devise and bequeath the following described real estate [describing forty acres] to my executor hereinafter named, in trust, however, to sell the same and out of the proceeds thereof to pay all my debts and funeral expenses, and the expense of administration of my said estate, and the balance of such proceeds to be paid to my adopted daughter, Nellie O’Day, of the said village of Saranac, and it is my will that the executor of this my last will and testament shall with all convenient speed after my decease, bargain, sell and alien in fee simple the said above described premises for the closing, executing and perfecting of which I do by these presents give to my said executor full power and authority to grant, alien, bargain, sell, convey and assign, all the said lands and premises hereinbefore described to any person or persons, their heirs and assigns forever, in fee simple by all and every such lawful ways and means in the law as to my said executor shall seem fit or necessary.”
    Follows a devise of lot No. 19 in the village of Saranac “ to my adopted daughter Nellie O’Day and to heirs and assigns forever.” Then follows a devise of certain other lands described “to my wife Mary O’Day.” Patrick O’Day died shortly after the execution of this will, which was, on the 17th day of August, 1889, admitted to probate, and the executor therein named, Royal A. Hawley, a reputable and experienced attorney, duly qualified and filed his bond as such. On September 2, 1889, said Hawley executed a quitclaim deed of the 40 acres devised to him in trust to Mary O’Day for the expressed consideration of $300. The deed recites:
    “This deed is made under and by yirtue of the terms of the last will and testament of said deceased person and the power of sale in said will contained.”
    The deed is absolute upon its face, containing no words of limitation or anything to indicate that the grantee therein named took the land in question impressed with any trust. The complainant, Nellie Longe, is the same person» mentioned in the will of Patrick O’Day as “my adopted daughter Nellie O’Day.” At the time of the execution of the deed by Mr. Hawley to Mary O’Day, Nellie O’Day was upwards of 21 years of age, was present at the time the transaction was consummated, and signed her name as a witness to the instrument. Mary O’Day kept the land in question until May 5, 1892, when she sold the same to James W. Tolies for the sum of $500. About the same time Mary O’Day sold some other lands devised to her by Patrick O’Day, and on the 18th day of May, 1893, she purchased a small house and lot in the city of Ionia for the sum of $300. She continued to reside in this place until the time of her death, on the 9th day of September, 1909. She left a last will and testament, in which she devised and bequeathed all her property to certain of her nephews, grandnephews, and nieces. The assets of her estate, including the house and lot in the city of Ionia, amounted to about $900. The indebtedness of the estate as allowed by the commissioners on claims, together with the costs of administrátion, up to date, is $895.93. In the settlement of the.estate the administrator procured leave to sell the real estate for the purpose of paying debts. Before this sale was consummated, complainant herein filed her bill, in which she charged that, at the time the conveyance was made from Hawley to Mary O’Day, an agreement w;as entered into, by virtue of which Mary O’Day became trustee for her of the proceeds of said land, and was liable to account therefor. She prays—
    “That it maybe ascertained and determined by the order and decree of this court that said Mary O’Day, deceased, and said Will Kinney, as administrator of the said estate, held and hold the purchase price of the lands and premises hereinbefore particularly described, and which were sold by said deceased in her lifetime as hereinbefore set forth, as trustees for the use and benefit of your oratrix, and that said Will Kinney, as such administrator, may be required to account to and with your oratrix for the proceeds of the sale of said real estate, and to pay over to your oratrix what may be justly her due on such account.”
    She also prays for an injunction against the administrator restraining him from selling the real estate in question.
    Two witnesses were produced on the part of the complainant, whose testimony, it is alleged, tends to establish the fact that Mary O’Day accepted the deed of the 40 acres in question as a trust. Mr. Hawley, the executor named in the will of Patrick O’Day, testified in part as follows:
    “During the course of the conversation I asked Nellie O’Day, now Nellie Longe, the complainant in this case, if she was satisfied to have me make a deed in that way to Mrs. O’Day. She stated she was; that it was all agreed upon and understood between herself and mother. I don’t know whether they stated what the circumstances of the agreement were or not, but the talk was between Mrs. O’Day and myself that she was to assume the responsibility that I had assumed in accepting this office of trust as executor. That was understood and agreed upon, and I made the deed. # « #
    “Q. I don’t suppose you claim just now to give the language that occurred there at that time ?
    “A. Oh, no; I wouldn’t undertake to give the language. * * *

      ilQ. There is no conditions embraced in this deed upon Mrs. O’Day?

      “A. No, sir; no further than it, states the deed was given under the power contained in the last will and testament of Patrick O’Day.

      “Q. You had the power to give a straight warranty deed, didn’t you, under the will ?
    “A. I should judge so; yes. I don’t think I had a word of conversation with Mrs. O’Day from that time until the time of her death. At this time Nellie O’Day was living with Mary O’Day and unmarried. What occurred between them afterwards or before they came to my office in reference to this deed I don’t know anything about. I don’t know how much Mrs. O’Day paid Mrs. Longe out of the proceeds of this property before or after. * * * I got my pay for whatever -I did. If I received pay, it was from Mary O’Day. I never have been discharged as executor. I don’t- know anything about the amount of debts of Patrick O’Day, or the costs and funeral expenses, of my own knowledge.”
    Mrs. Margaret Tolies, the wife of James Tolies, who purchased the 40 acres from Mary O’Day, on May 5, 1892, gave the following testimony:
    “ Q. Were you present at the time your husband purchased this property of Mrs. O’Day ?
    “A. When they had their first talk, I wasn’t present, but she called at our place a couple of times to see about selling it to him. She was quite anxious to sell it. I listened to the conversation they had.

      iJQ. Did you hear her say what she intended to do with the proceeds of this land ?

      “A. She said what she received from this land didn’t pay her to take care of it, that she could do better with the money, so she was anxious to sell it. She wanted it for her daughter, Nellie. It was intended for her.”
    There is no other testimony in the record tending to establish a trust relation between Mary O’Day and Nellie O’Day (now Longe). Upon a hearing in the court below, a decree was entered declaring that Mary O’Day held the proceeds of the. 40 acres in question in trust for Nellie O’Day (now Longe), and directing the defendant administrator to pay to complainant from the estate in his hands the sum of $530. It is further decreed that “ no debts allowed by commissioners on claims or judge of probate to be deducted from the amount due complainant.” The sum allowed was decreed to be paid in part out of cash in the hands of the administrator, and, in default of the payment of the full amount, the real estate remaining in the estate was directed to be sold. From this decree, defendants appeal.
   Brooke, J.

(after stating the facts). The first question requiring consideration is whether the testimony of Mr. Hawley is competent. 3 Comp. Laws, § 10212, was amended by Act No. 30 of the Public Acts of 1903 to read in part as follows:

“No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives. * * * Provided, that whenever the words ‘the opposite party’.occur in this section, it shall be deemed to include the assignors or assignees of the claim or any part thereof in controversy.”

This statute has been construed in the following cases: Gustafson v. Eger, 132 Mich. 387 (93 N. W. 893); Detroit United Railway v. Smith, 144 Mich. 235 (107 N. W. 922); Locklund v. Burman’s Estate, 146 Mich. 233 (109 N. W. 255); In re Reidy’s Estate, 164 Mich. 167 (129 N. W. 196); and in Bigelow v. Sheehan, 166 Mich. 89 (131 N. W. 78). In making the conveyance in question, it is clear that Mr. Hawley was the assignor of Mary O’Day. From his own testimony it likewise appears that in said transaction, so far as he represented anybody, he acted as agent for Mary O’Day, and was by her compensated for his services as such. A further reason is urged against the competency of Mr. Hawley’s testimony from the fact that it tended to contradict the plain terms of a written instrument. The deed is absolute upon its face, and is made in pursuance of the powers granted by the will of Patrick O’Day. Those powers included the right to make an absolute sale of the land in question, but granted no power to create a new trustee.

3 Compiled Laws, § 8849, provides:

“When the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void.”

The rule is laid down in 13 Enc. of Ev. p. 121, as follows :

“ It is generally held that in the absence of fraud, mistake or accident, that the grantor in an absolute conveyance, reciting a valuable consideration, cannot show by parol evidence that the grantee was to hold the lands conveyed in trust for his benefit.”

Cases are cited from many jurisdictions in support of the text. If is said in Willis v. Robertson, 121 Iowa, 380 (96 N. W. 900):

“ The promise of a grantee in a deed, absolute on its face, to hold the property for the benefit of the grantor’s heirs, cannot be shown by parol; nor will his subsequent refusal to fulfill the promise constitute a fraud converting the deed into a trust, where the execution and delivery of the same was not induced by the wrongful act or promise of the grantee.”

By the terms of the will of Patrick O’Day, Mr. Hawley was charged with the duty of paying the debts, funeral expenses, and expenses of administration of the estate of said O’Day, and with the payment of the balance to Nellie O’Day. His testimony is that Mary O’Day—

“Was to assume the responsibility that I had assumed in accepting this office of trust as executor; that was understood and agreed upon and I made the deed.”

If Mary O’Day took the deed in question charged with any such duty to the estate of Patrick O’Day, it is clear that the existence of such an obligation must be found outside of the instrument itself. The general doctrine is well stated in 9 Enc. of Ev'¡ p. 331, as follows:

“It is a general rule that evidence of a prior or contemporaneous agreement which is inconsistent with the terms of a written instrument, complete upon its face, and unambiguous, is, in the absence of fraud or mistake, inadmissible to contradict, vary, or in any way alter the terms of the written instrument, as all such agreements are presumed to be merged in the writing, or, if not embraced therein, to have been rejected by the parties” — citing cases.

A further and controlling argument against the position of complainant may be found in 3 Comp. Laws, § 9509, which reads:

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed of conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same,- or by some person thereunto by him lawfully authorized by writing.”

In Hayes v. Livingston, 34 Mich. 396 (22 Am. Rep. 533), it is said:

“ The law does not permit title to lands to rest in parol, nor does it allow anything which is evidenced by the deeds to be changed on parol testimony of promises, agreements or understandings.”

The deed in question created no trust relations between complainant and Mary O’Day, and, if the testimony of Mr. Hawley could be considered, it would show only an agreement between them with reference to complainant’s interest in real estate, said agreement not being evidenced by any writing as required by the statute. In Mitchell v. Bilderback, 159 Mich. 483 (124 N. W. 557), this court said:

“ The alleged agreement to sell this land and divide the proceeds was made in 1898, and was manifestly void under the statute of frauds. That was seven years or thereabouts before the sale of the land by Dill. Therefore there was not at that time a fund in existence in which a trust could be created by parol ” — citing Rapley v. McKinney's Estate, 143 Mich. 508 (107 N. W. 101), and Collar v. Collar, 86 Mich. 513 (49 N. W. 551, 13 L. R. A. 621).

So, in the case at bar, the alleged agreement was made some years before the alleged trust fund was created by the sale of the land in question. The record contains no evidence as to what Mary O’Day paid in settlement of the debts and funeral expenses of her husband, Patrick O’Day; nor does it contain any competent evidence that she did not in her lifetime pay to Nellie O’Day the difference between the amount of said debts and funeral expenses, and the amount received by her for the 40-acre farm in question.

The record shows that during the latter years of the life of Mary O’Day, the relations between herself and the complainant were strained in character. It is, we think, very significant that the complainant, who at the time of the transaction in question was more than 21 years of age, should have waited 21 years before attempting to enforce her alleged rights. The unexplained delay of a creditor to enforce his claim for so long a period gives rise to a presumption of payment. See 9 Enc. of Ev. p. 709; 18 Am. & Eng. Enc. Law (1st Ed.), p. 207; 22 Id. (2d Ed.), p. 591, and cases cited. We are of opinion that the testimony of Mr. Hawley was clearly incompetent under the statute, and, even assuming that it as well as that of Mrs. Tolies is admissible, it cannot be permitted to change the terms of the deed in question, which is plain, unambiguous, and absolute upon its face.

The bill of complaint is dismissed, and defendants will recover costs of both courts.

Moore, C. J., and Steers, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


text:
    PRIEST v. AMERICAN INSURANCE UNION.
    1. Process — Garnishment—Waiver—Appearance—-Justicies oe the Peace.
    Appearance of a defendant corporation as garnishee in garnishment proceedings, and its consent to an adjournment to the day following, waived any defects in service of process.
    2. Same — New Trial.
    The entry of a motion for a new trial by the garnishee in justice’s court also operated as a waiver of defective service.
    Error to Wayne; Murfin, J.
    Submitted June 18, 1912.
    (Docket No. 34.)
    Decided July 11, 1912.
    - Garnishment by Minnie Priest against the American Insurance Union, Columbia Chapter No. 142. Judgment for plaintiff. Garnishee defendant brings error.
    Affirmed.

      Lehman, Biggs & Lehman (Cavanaugh & Wedemeyer, of counsel), for appellant.

      Berry & McCredie, for appellee.
   Brooke, J.

This is a suit in garnishment. Service of process was made upon one Marion Rudd, who was secretary of the local chapter known as Columbia Chapter No. 142. On July 19, 1909, Miss Rudd appeared and disclosed: “When warrant comes there will be $500 due defendant.” On November 27th summons to show cause was served on the said Marion Rudd returnable November 30, 1909.

On the return day the following entry was made by the justice: “Parties in court; case adjourned by consent to Dec. 1st, 1909, 9 a. m.” Following this, the return of the justice shows these entries:

“Dec. 1st, 1909 — 9 o’clock a. m. Case called. Parties in court. Plaintiff declared in an action of assumpsit on all the common counts especially for money had and received, claiming damages $500 or under. Defendant moves to dismiss for want of proper service. Case adjourned by consent to Dec. 10th, 1909, at 9 o’clock a. m.
“Dec. 10th, 1909 — 9 a. m. Case called. Parties in court. Case adjourned by consent to Dec. 16th, 1909, at 2 o’clock p. m.
“Dec. 16th, 1909 — 2 p. m. Case called. Parties in court. J. M. Crabbs sworn in support of motion. Case adjourned by consent to Dec. 30th, 1909, at 2 o’clock p. m.
“ Dec. 30th, 1909 — 2 p. m. Parties in court. Case adjourned by consent to Jan. 6th, 1910, at 9 a. m.
“ Jan. 6th, 1910 — Case called. Parties in court. Case adjourned by consent to Jan. 13th, 1910, at 9 o’clock a. m.
“Jan. 13th, 1910 — Case called. Parties in court. Case adjourned by consent to Jan. 15th, 1910, at 9 o’clock a. m.
“Jan. 15th, 1910 — Case called. Parties in court. Motion of defendant to quash overruled. Eugene P. Berry sworn in behalf of plaintiff and proved his authority to appear, offers in evidence Docket No. 70, page 425. Defendant offers no defense. I thereupon render judgment in favor of plaintiff and against defendant for two hundred sixty-nine and 95/100 dollars damages and two dollars costs.
“ Jan. 20th, 1910 — Affidavit, motion, and notice for a new trial filed. Case set for hearing Jan. 24th, 1910, at 9 o’clock a. m.
“Jan. 24th, 1910 — 9 o’clock a. m. Case called. Parties in court. Motion for a new trial argued and submitted. Judgment set aside and new trial granted. Case set by consent fpr trial Jan. 25th, 1910, at 2 p. m.
“Jan. 25th, 1910 — 2 p. m. Case called. Parties in court. Defendant filed written plea and affidavits. Plaintiff offers constitution or code of regulations of American Insurance Union in evidence marked Exhibit A.’ Case adjourned by consent to Jan. 26th, 1910, 2 p. m.
“Jan. 26th, 1910 — 2 p. m. Case called. Parties in court. Plaintiff files replication in nature of an answer to defendant’s plea. Case adjourned by consent of parties to Feb. 5th, 1910, at 9 a. m.
“Feb. 5th, 1910 — Motion of defendant overruled. I thereupon render judgment in favor of plaintiff and against defendant in the sum of two hundred sixty-nine and 95/100 dollars ($269.95) damages and two dollars costs
“ Fred E. De Gaw,
“ Justice of the Peace.”

Upon appeal to the circuit court, the judgment of the justice’s court was affirmed. The learned circuit judge held, and we think correctly, that the action of the defendant on January 20,1910, when it made its motion for a new trial, operated as a general appearance. That motion was supported by an affidavit upon the merits. Aside from this, we are of opinion that the justice’s entry of November 30, 1909, is conclusively against the position taken by defendant. That entry recites that the parties were in court, and that an adjournment was had by consent to the following day. The facts there stated must control. Mitts v. Harvey, 125 Mich. 354 (84 N. W. 288). In Waldron v. Palmer, 104 Mich. 556 (62 N. W. 731), this court said:

“The presence of the parties and their consent to adjourn the suit, without pleading, cured any real or imaginary defects in what preceded it.”

See, also, Lacomb v. Godkin, 143 Mich. 193 (106 N. W. 702), and cases cited. 3 Cyc. pp. 504, 525.

As the action of the defendant amounted to a general appearance, and therefore a waiver of any alleged irregularity in the service of process, it is unnecessary to consider the claim of defendant that the service was bad.

The judgment is affirmed.

Moore, C. J., and Steers, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.


author: McAlvay, J.

text:
    WIERS v. SHAW-WALKER CO.
    1. Master and Servant — Negligence—Notice—Defective Machinery — Warning Servant.
    In an action for personal injuries, based on defendant’s neglect of duty to warn an employé of the danger of a “fly-back” from a defective planing machine, evidence was admissible to show another prior accident had occurred upon the same machine, having relation to the question of notice of the alleged defective condition.

    2. Same — Proximate Cause — Duty to Repair Defects.
    There was evidence tending to prove that the defect was the proximate cause of the injury, upon a record showing that the knives of the planer were improperly adjusted, that the machine did not work right, that the alleged defect had a tendency to cause a fly-back: the question was correctly left _to the jury as one of fact._

      3. Same.
    And the court committed no error in submitting to the jury • the question of plaintiff’s inexperience and alleged notice thereof, git-en by him as he claimed, to the defendant, at the time of his employment.
    4. Same — Appeal and Error.
    An objection, a ruling by the court, and exception in behalf of appellant, are necessary to review alleged improper argument of counsel.
    Error to Muskegon; Sessions, J.
    Submitted June 22, 1911.
    (Docket No. 64.)
    Decided July 11, 1912.
    Case by John Wiers against the Shaw-Walker Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Boss, for appellant.

      Turner & Turner and James E. Sullivan, for appellee.

       As to duty to warn or instruct servant, see note in 44 L. R. A. 33.

   McAlvay, J.

Plaintiff was employed by defendant company in April, 1910, to operate a buzz planer in the machine room of its factory which defendant owned and operated at Muskegon. This machine room had in it 25 or 30 machines of different kinds, each run by a different operator. While so employed, plaintiff, about a week after he began work on this machine, was injured by a board, which he was planing, flying back and permitting his left hand to get upon the knives, whereby he lost the thumb of that hand, and the first finger was permanently injured. Plaintiff brought suit to recover for such injury, claiming that the same was caused by the defective and unsafe condition of the planer in that “the knives, while in true line with the back table of said machine, were not in line with the front table on the side opposite to the operator ; ” that is to say, that the knives did not run parallel with the edge of the front table, but rather obliquely with it, the knives being higher on the side opposite to the plaintiff. Plaintiff claimed that this condition was discovered by him when he was putting, as directed by the foreman of the machinery department of defendant, another set of knives in the machine, and, not considering the machine in a safe and proper condition to work upon, notified the foreman and pointed out to him the condition of the knives, and asked him to remedy the same; that the foreman tested the machine by running several boards through it and told him it was safe, and directed him to go on with his work, and then and there promised plaintiff that, when he found time, he would fix it; that plaintiff continued his work relying upon this promise. The day following, while operating this machine, claiming to have been in the exercise of due care, he was injured as described. Plaintiff further alleged that he was inexperienced at such work and but of the age of 18 years; that he had never before operated a buzz planer, and had so informed defendant’s superintendent; that he was not properly and sufficiently instructed how to operate this machine or warned of the danger attending its operation caused by material being thrown back by the knives.

The result of the trial was a verdict and judgment for the plaintiff. A motion for a new trial was made upon the grounds: That the verdict was against the weight of the evidence; that the court erred in submitting the question of the defective condition of the planer to the jury; and also that the court was in error in charging the jury as follows:

“But it is the claim of the plaintiff that he did not know, and because of lack of experience and knowledge he had no information, that there was danger of the board flying back in this case, and he says that defendant failed to warn him of that danger.”

Error is assigned upon the denial of this motion, upon the introduction of certain evidence, and upon the argument of counsel.

A witness during the trial was permitted to testify relative to an injury he received on this machine, against the objections of counsel. It is claimed that this was prejudicial error. This testimony was offered for the purpose of showing defendant’s knowledge of the defective condition of the planer. That such evidence is admissible for the sole purpose of showing notice to defendant of defects, is admitted in the brief. There was considerable colloquy between counsel and court upon the question of its admissibility. The claim was made by defendant’s counsel that, when in perfect condition, it was inherently a dangerous machine. The court said:

“* * * There is an allegation in the declaration as I read it that there was a failure to warn this plaintiff of the dangers incident to the operation of the machine, and that he was inexperienced. * * * The purpose of it is, as I understand it, to show that the defendant was aware that accidents of this kind had occurred prior to that time, as bearing, upon the question as to whether it was the duty of the defendant to warn the plaintiff of the danger, if any danger existed.”

Under the allegations of negligence in the declaration, this testimony was admissible, and the court was not in error in refusing to strike it out.

Appellant further contends that the court erred in submitting to the jury the question of the defective condition of the planer upon which plaintiff was injured, for the reason that there was no evidence in the case tending to show that such condition caused the injury. The defective condition of the machine, as alleged in the declaration, was that the knives were in true line with the bed of the back table, but were not in line with the bed of the front table, being higher above it on the side opposite to the operator. The testimony, without dispute, is that this condition would allow the knives to make a heavier and deeper cut on the side opposite to the operator, where they were higher, making the board just as much thinner at that edge as the knives projected above the bed of the table. This condition of the machine is not disputed.

It is admitted that plaintiff informed the foreman of the machinery department of this condition of the machine, and that he looked at it, tested it, and told the plaintiff that he would fix it some other time, to go ahead with.his work. The foreman describes the condition exactly as plaintiff claims it was. On cross-examination he testified that it was proper for the front bed to be in line with the back bed. He said:

" That is the best way to get the best results with the work.”

He admits that the machine "was not absolutely right and ought to be fixed.” The foreman also says that the danger from a fly-back is less when taking a light cut than when a heavier cut is taken. He testified:

"If the wood is pressed down just as far as it can be pressed down on the table, the knives will cut the deepest into the wood on the side where the front table is lower, and, where the front table is lower, there will be a greater tendency for the knives to kick back.”

There was also testimony of a witness for the plaintiff that the condition of this machine would be apt to cause a fly-back.

We do not agree with appellant that, as a matter of law, it can be held there was no evidence in the case tending to show that this condition of the machine was the cause of the injury, but agree with the learned trial judge that there was upon that branch of the case a question of fact for the jury.

Appellant in its brief says:

“ The court also submitted to the jury one other ground of negligence set forth in the declaration, namely, whether the defendant, through itf3 agent, failed to warn the plaintiff of the danger incident to his employment, provided such warning was necessary.”

Defendant claimed, and offered evidence tending to show, that, at the time of hiring plaintiff, he stated that he was 21 years old, and had operated a buzz planer. A card was produced, claimed to have been made at the time, showing his age was entered as 21 years. Plaintiff denies that he was asked his age or stated that he was 21. He denies that he had operated a buzz planer; on the contrary, he stated that he had never run a buzz planer. He says that he told defendant’s agent that he worked around a buzz planer as “tailer,” which means taking the material from the back of the machine after it is planed, and piling it up. He also says that he had never heard of boards kicking back on planers for any reason. There is other testimony in the case tending to show that he did not operate the machine as if he was an experienced workman.

If there had been no disagreement between the parties as to what occurred at the time of hiring, defendant’s contention should have been sustained. But this sharp dispute must be considered and is to be determined as a question of fact. There was no evidence in the case tending to show that he was instructed as a green hand relative to the inherently dangerous character of this machine, or that such machines sometimes kicked back. He was instructed, from time to time, by the foreman, how to do this class of work on this machine.

After stating the respective claims of the parties upon this branch of the case, the court charged the jury as follows:

“If the plaintiff stated and represented that he had had experience in operating a buzz planer, the defendant had a right to rely upon such statements in employing him and in setting him to work upon such a machine; and, if there was nothing in his method or manner of operating the machine or in his actions and conduct that would have led an ordinarily prudent and careful person to believe that he was an inexperienced'man, the defendant had a right to rely upon his statements and had the right to believe that he was an experienced man; that is, that he had had experience in that line of work and in operating that kind of a machine. If you find that he made such statements and representations, and that the defendant, through its foreman, actually believed that he had had experience, and that there was nothing that would lead an ordinarily careful and prudent man to believe that he was. an inexperienced man, then this plaintiff assumed the risks of danger ordinarily and commonly incident to the operation of such a machine. On the other hand, if you find that this plaintiff had not had experience in operating such a machine and that he so stated to the defendant, to the foreman, or superintendent of the defendant, or if you find that his manner and methods and his actions and conduct in operating the machine would have led an ordinarily prudent and careful person to believe that he had not had experience in the operation of such a machine, then he did not assume the risk of danger in the operation of such a machine or such risks as were not obvious and apparent to him in the light of his experience.”

It is not contended that this charge did not correctly state the law upon the proposition, but that the court should not have submitted the question at all, for the reason that the great preponderance of the evidence was with the defendant. In our opinion, as above stated, there was a question of fact for the jury, and the court submitted it under proper instructions, and was therefore not in error in refusing to grant a new trial.

Error is assigned upon argument of counsel. The practice requiring objections to argument of counsel to be called to the attention of, and be passed upon by, the trial court, which of late this court has insisted shall be complied with, has been neglected by appellant in the instant case. There can be no exception taken (except to the charge) where no ruling has been made by the court, unless the record shows clearly that the matter was so called to the court’s attention that it amounted to the same thing. This record shows that some of these objections were so presented and correctly passed upon by the court. It does not appear that the court’s attention was challenged to, or opportunity given for a ruling upon, certain objectionable argument, which, if passed without correction, might have been considered by this court as prejudicial. Questions not properly raised upon the record will not be considered.

We find no error in the case. The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Blair, Stone, Ostrander, and Bird, JJ., concurred.


text:
    NORTHERN MICHIGAN BUILDING & LOAN ASSOCIATION v. FORS.
    Forcible Entry and Detainer — Summary Proceedings.
    In summary proceedings by a mortgagee against one not a party to the mortgage claiming to own the premises, the question of title cannot be litigated and the case must be dismissed. 3 Comp. Laws, § 11164 et seq.

    Error to Houghton; Streeter, J.
    Submitted June 9, 1911.
    (Docket No. 29.)
    Decided July 22, 1912.
    Rehearing denied December 18, 1912.
    Summary proceedings by the Northern Michigan Building & Loan Association against John S. Fors for the recovery of the possession,of certain real property. Upon appeal to the circuit court judgment was rendered for defendant; complainant brings error.
    Reversed; proceedings dismissed.

      Burritt & Burritt, for appellant.

      Hanchette & Lawton, for appellee.
   Bird, J.

Summary proceedings were commenced by plaintiff under 3 Comp. Laws, § 11164 et seq., to recover possession of certain premises in the city of Hancock. The jury returned a verdict for the defendant, and plaintiff has assigned error.

In April, 1900, defendant purchased the lot in question and, by a mistake or misunderstanding, the deed was made to his son John S. Fors, Jr. The defendant is of foreign birth and understands and speaks our language imperfectly. While the deed was read over to him and his wife, he claims he did not understand that it was made to his son. The defendant paid the consideration and went into possession of the premises at once, and has ever since occupied them. In 1905 the son was permitted by defendant to build a house on the west part of the premises. To enable him to do so, he borrowed $1,600 from plaintiff and secured it by a mortgage on the whole premises. This loan was known to the defendant. The son and father later fell into disagreement over the premises and took their differences to court, where they are now pending. See 159 Mich. 156 (123 N. W. 579). The son defaulted in his payments, and plaintiff foreclosed the mortgage. After getting possession of the west part, it instituted this proceeding to get possession of the east part, occupied by defendant.

The defendant resisted the action on the ground that he was the owner of the premises. His claim of title and how he obtained it was fully gone into on the trial. At the close of the proofs, defendant’s counsel moved the trial court to dismiss the proceedings because the question of title was involved. This motion was denied, and the trial court submitted to the jury the question of defendant’s right to remain in possession on grounds other than that of ownership. The plaintiff now insists the case should be reversed because of errors occurring on the trial. It would be without profit to plaintiff for us to consider its assignments because, in the event that we found error was committed in the trial court, we would still be obliged to hold that defendant’s motion should have been granted. This court has repeatedly held that the question of title could not be litigated in an action based upon these sections of the statute. It must have been apparent long before the close of the testimony that defendant claimed the right to possession of the premises because of his ownership of them. When it. so appeared, and that title was necessarily involved, the proceedings should have been dismissed upon defendant’s motion. Bennett v. Robinson, 27 Mich. 26; Boss v. Van Driele, 47 Mich. 201 (10 N. W. 199); Riggs v. Sterling, 51 Mich. 157 (16 N. W. 320); Mulder v. Corlett, 54 Mich. 80 (19 N. W. 756); Butler v. Bertrand, 97 Mich. 59 (56 N. W. 342); Jenkinson v. Winans, 109 Mich. 524 (67 N. W. 549).

The judgment of the trial court is reversed, and the proceedings dismissed. Defendant will recover costs of both courts.

Moore, C. J., and McAlvat, Brooke, and Ostrander, JJ., concurred.