text:
    LANSING NATIONAL BANK v. COLEMAN.
    1. Contracts — Agreement to Answer for Another’s Default —Consideration.
    A bank stockholder’s written, agreement to make good to the bank, out of “dividends to be made,” an amount alleged to have been stolen by his son, does not imply such an extension of time as will supply the legal consideration necessary to support the promise; nor, in the absence of any agreement» will nonaction by the directors with respect to the institution of proceedings against the son have that effect. Grant, C. J., and Moore, J., dissenting.
    2. Same — Theft—Burden of Proof — Hearsay.
    A bank cashier who seeks to avoid his written agreement to make good to the bank a deficiency by showing that such agreement was, what does not appear upon its face, an undertaking to answer for the theft of his son, the teller, and without consideration, does not sustain the burden of proof which rests upon him to show the fact by evidence that he informed the directors, at the time the agreement was given, that his son had told him that he stole the money; such information being mere hearsay. Montgomery, J., dissenting.
    Error to Ingham; Wisner, J., presiding.
    Submitted November 4, 1897.
    Decided May 24, 1898.

      Assumpsit by. the Lansing National Bank against Merritt L. Coleman for moneys had and received. From a judgment for defendant, plaintiff brings error.
    Reversed.
    Defendant admits his indebtedness to plaintiff in the sum of $600, for the recovery of which this suit is brought. He claims a set-off of $690, due him for declared dividends as a stockholder of the plaintiff. To this defense plaintiff replies by interposing the written agreement of the defendant that any dividends due him should be paid as therein provided. To this agreement he replies that it was without consideration, and, therefore, not binding upon him.
    Defendant was plaintiff’s cashier during its entire existence, from 1872 to 1892. He gave a bond, conditioned for the faithful discharge of his duties as cashier, and to account for and pay over all moneys that came into his hands as such cashier. Among the assets of the bank when it went into liquidation was found the following note:
    “#2,000. Lansing, Mich., October 3, 1891.
    “ Ninety days after date we promise to pay to the order of B. F. Simons two thousand dollars, at the Lansing National Bank, for value received, with interest at ten per cent, after maturity.
    [Signed] “E. Bement & Sons,
    “A. O. Bement, President.”
    Indorsed upon its face in red ink was the following: “Duplicate. Original note lost. Copy.” It was also indorsed by B. F. Simons. Defendant claimed at the time that a note of E. Bement & Sons, of a like amount, which had been discounted by the bank, was lost, and that this was given to take its place. This note was entered upon the teller’s cashbook, November 14, 1891, and charged in the cash account of that day at $2,000, as an original loan. It appears that Bement & Sons had been large borrowers at the bank, and, when the statement was made to them of the loss of the note, they, without examination, assumed the statement to be true, and gave this note. In fact, they never had had such a note at the bank, and when it came due they refused payment. The bank, under the direction of defendant, brought suit upon it. Subsequently the suit was discontinued, and defendant, as cashier, gave Bement & Sons, on August 23, 1892, the following certificate:
    “This certifies that the note of which the above was a copy was given by E. Bement & Sons to take the place of one supposed to be lost. It was subsequently ascertained that the note so supposed to be lost was not lost, but paid. Therefore the makers of this note do not owe the same. It is without consideration, and is not collectible. When the affairs of the Lansing National Bank are settled up, this note is’ to be canceled or surrendered 4'/'\ -f h C» TBSulrilTC! ’
    [Signed] “M. L. Coleman, Cashier.”
    September 17th' following, defendant gave to plaintiff the following agreement:
    “Hon. O. M. Barnes,
    “Pt. Lansing Nat. Bk.
    “ Dear Sir: I will pay what is known as the duplicate E. Bement & Sons note of ($2,000) two thousand dollars out of any dividends made from the remaining securities of the Lansing Nat. Bk.
    “Besp. yours,
    “M. L. Coleman.”
    The defendant claims that his son, who was the bank teller, had stolen $2,000, and that he was not responsible for this theft, and that his promise to pay was void for want of consideration.
    The court instructed the jury that if they should find that defendant was not able to account for this money, and that his agreement to pay was given on account of his inability to account for it, then there was a good consideration ; • but if they should find that it was understood that his son had stolen the money of the bank, and that the real consideration was the theft by the son, then it was void. A full statement of the testimony upon this point is essential. Mr. Barnes, the president, a witness for the plaintiff, was asked to state the circumstances under which the agreement of September 17th was given. He stated that the bank claimed $2,000 more than defendant admitted to be due; that this claim grew out of the Bement note, for which defendant had received credit upon the books; that Mr. Bement claimed that the note was not to be paid, having been given to take the place of a lost one; that defendant denied this; that the directors insisted that that question should be disposed of, and that, “if it belonged to Mr. Bement to pay, suit should be brought by the cashier, and payment insisted on; if not, the officers of the bank should have the proof — At this point defendant’s attorney interrupted the witness, and objected to the testimony, and stated to the court that he would state the facts. He said:
    “The teller of that bank, a relative of Mr. Coleman, was supposed to and charged with, by every director of that bank, having abstracted $2,000 in cash, and to have substituted a paid Bement note in its place. When E. Bement & Sons renewed the $2,000 note, they failed to take it up. The teller of the bank, instead of retiring it, permitted it to stay upon its cashbook as a claim due the bank.”
    After this colloquy was over, the witness continued, testifying that after the matter had been before the board of directors for some time, and after Mr. Bement had been seen by the bank officers, defendant came to him with a paper dated September 17th, and said he had found out how the matter was; that his son was at the bottom of the trouble; that he would pay the money, and that he would not prosecute Mr. Bement on the note; that as fast as his dividends came in they might be applied on it; that defendant, at witness’ suggestion, put it in writing, so that he (witness) could show it to the other directors; that witness did so, and they all regarded it as satisfactory. Being afterwards recalled by the defendant, Mr. Barnes testified as follows:
    “When I took this from Mr. Coleman, I knew he had credit for the Bement note, and that it was not a note he could enforce against the Bements. I did not understand when that paper was taken that Mr. W. T. Coleman had taken $2,000, and had confessed that he took it. I understood Mr. M. L. Coleman to say he had taken money, but how much was not stated. He gave this paper voluntarily. When Mr. Coleman told me the boy had stolen the money, I believed it, and this was my belief when I took this paper. ”

      Mr. Hasty, the bookkeeper of the bank, testified that there was no record in the bank books of any note of which this Bement note was a duplicate or a renewal. Defendant was then called in his own behalf, and testified that he could not tell from the books whether this note was valid or not. Under the direction of his own attorney, he testified as follows:
    “Q. Did you afterwards learn from an employé of the bank what was said to be the secret of that note ? This is preliminary.

      “A. I did.

      “Q. Did you state that to the board at a board meeting?

      “A. I did.

      “Q. Did you ascertain from Mr. W. T. Coleman that he had substituted this note for $2,000 that he took out of the bank?

      “A. I did.

      “Q. Did you ascertain what it was he took out?

      “A. He told me what he took out.

      “Q. What was it?
    “A. He took out $2,000 in cash.

      “Q. State to the jury whether or not, at a board meeting of the directors of the Lansing National Bank, held thereafter, after the communication, you disclosed to them the information you had received.

      “A. I did.

      “Q. Did you or did you not state to them that W. T. Coleman had confessed that he had taken $2,000 in money from the bank, and substituted this note ?

      “A. I did.
    “Q. Now state whether or not it was following that fact that this action in relation to the note of E. Bement & Sons was taken.

      “A. It was; consented to by Mr. Barnes, and a paper prepared by Mr. Barnes.”
    On cross-examination he was shown the note, and testified that he secured the note himself; that it was in his handwriting; that he got it of A. O. Bement, wrote the word “Duplicate” some time afterwards, told Mr. Bement that there was a note of $2,000 that he supposed was lost, and asked him to. give a duplicate; that they were $2,000 short, and he knew a note was lost; that the note he supposed was lost was dated October 3, 1891. He was then shown a note of that date for $2,000, indorsed by A. A. Nichols, made by Bement & Sons, and testified that this was the note he thought was lost, but could not tell how he knew the note was lost, tie thought it was Bement’s. He admitted that he represented to Bement & Sons that the lost note was payable to the order of B. F. Simons. He then testified as follows:
    “ Q. When you went there, and took that note, you did not know that there was any original note, did you, that they had given ?

      “A. I supposed there was, sir.
    “ Q. I say you did not know it. How did you happen to date it October 3d?.

      “A. I cannot tell you how I happened to date it October 3d.
    “ Q. Well, you marked this ‘Duplicate,’ didn’t you?

      “A. Not at that time. I didn’t think it was marked ‘Duplicate.’ It might have been, but I don’t think so. I think, at request of Mr. Bement afterwards, that I marked the note ‘Duplicate.’
    “ Q. After you had taken it ?

      “A. Yes, sir.
    “ Q. Now, you have not answered yet how you know—

      “A. I do not know.
    “ Q. You did not know at that time, did you ?

      “A. I think I did. I think I ought to know.
    “ Q. I am not asking you whether you ought to know, but whether or not you did know, at the time you took that note, that, as a matter of fact, they owed you $2,000.

      “A. I did not get that — whether I did know, as a matter of fact, that they owed me $2,000 ?
    “ Q. Did you know, at the time you took this note, that E. Bement & Sons owed your bank $2,000 ?

      “A. I supposed they owed the bank $2,000.
    “ Q. What made you suppose so ?

      “A. Because there lacked $2,000 of being notes sufficient to amount to the sum that the books called for.
    ‘ ‘ The Court: Called for as against Mr. Bement, do you mean, or generally as against everybody ?

      “A. As against everybody.
    “ Q. Well, how did you happen to know they owed the $2,000? •

      “A. I didn’t know it.
    ‘ ‘ Q. Then you went down there, and represented to them that they owed you $2,000 ?

      “A. Yes, and they believed it.
    “ Q. And they believed it, and made this note ?
    “A. Yes, sir.
    “ Q. And as a matter of fact it was not true ?
    “A. As a matter of fact it was not true.”
    The jury rendered a verdict for the defendant.

      E. C. Chapin, for appellant.

      R. A. Montgomery, for appellee.
   Grant, C. J.

(after stating the facts). A settlement was made between the bank and the defendant. What was settled, and what was the consideration for the settlement? The defendant had taken' a note for $2,000, placed it among the assets of the bank, and had credited himself upon the books with $2,000 as loaned upon 'this note. In fact no loan was made, no cash paid out, no note had ever existed of which the one taken could be a duplicate. There was nothing upon the books of the bank to indicate the existence of any such note, or that Bement & Sons had ever been indebted to the bank upon such a note. Defendant had no reason to believe that the Bements had ever executed such a note, or were indebted to the bank in such a sum. If there was a shortage at that time in the cash of the bank, defendant did not then inform any of the bank officials, and give them an opportunity to investigate. Defendant, under his contract and bond, had control of the bank assets and loans. He recognized his liability for the transaction, and took this note, himself taking it, and entering it, and being alone responsible for it. It requires no argument to show tüat he was primarily liable to the bank. The bank had sued Bement & Sons. The suit was pending. They had executed the note. They appear to have had a valid defense. Defendant recognized it. On the strength of defendant’s agreement, that suit was discontinued. Defendant recognized his liability, agreed to pay, time to pay was extended, and any further investigation by the officials of the bank rendered unnecessarjo Defendant was not settling a larceny committed by his son, but a transaction of his own. The fact, if so it be, that defendant informed the president and directors that his son had taken -the money, did not change the situation. The statement did not bind them or the bank. They did not know whether the statement was true or false, and made no investigation. It was immaterial to the bank who had taken the money. There is no evidence to show that the bank officers understood and agreed that they would settle a theft by young Coleman. The fact that Mr. Barnes, the president, believed the statement of the defendant, did not bind the bank, or change the nature of the transaction. If defendant stated to the directors that his son had confessed that he had taken the money, and “substituted the note” for it, the statement, as a whole, was not true, for his son had nothing whatever to do with getting the note or entering it on the books, as appeared from his (defendant’s) cross-examination. But this is not all. It was not true, as stated by his counsel, that Bement & Sons had failed to take up a $2,000 note, and his son, instead of retiring it, had permitted it to stay upon its cashbook as a claim due the bank. The bank, through its officers, insisted that defendant was liable. He did not deny his liability. On the contrary, he recognized it, and settled. It would be a gross injustice to permit him, years afterwardsj to escape liability under a plea of theft by his son. If defendant had disputed his liability, and this dispute was compromised and settled, the compromise would have been a good consideration. 3 Am. & Eng. Enc. Law, 837. Is the settlement any less valid where he admitted his liability?

If, however, we assume that this settlement was made to secure the debt, default, or miscarriage of young Coleman, the defense cannot be maintained. The agreement is in writing, and answers the statute of frauds. The agreement itself implies an extension of time, because it was to be paid out of future dividends. It was clearly-understood that no proceedings to recover it were to be taken against young Coleman. None were taken. The agreement lulled the directors into nonaction against him. The settlement was voluntary. The amount was agreed upon, as well as the terms of payment. Defendant’s written obligation was accepted by the bank, acted upon, rendered any investigation by the bank as to the liability for the money unnecessary, and, in short, was treated as a complete settlement, and acted upon, for nearly four years. Defendant was continued in the service of the bank. In Bodine v. Morgan, 37 N. J. Eq. 426, the defendant had given a mortgage to secure the firm for which he and his son were employed for peculations made by the two. Five years afterwards Morgan attempted to defend against the mortgage because it was obtained by duress. It was there said:

“The mortgage resulted from a voluntary agreement on the part of Morgan with the firm to secure them $5,000 for the losses which he admitted they had sustained by the fraud of himself and his son while in their employment. ITe took no steps to set it aside, and never even protested against it, though it had stood against his property for about four years, and consequently had been due for a year when this suit was brought.”

The extension of time of payment and forbearance to bring suit against the son were sufficient consideration for the promise.

If proof that this obligation was given by defendant to secure a defalcation of his son would be a valid defense, defendant, upon whom is the burden of proof, has failed to establish it. Can a bank cashier avoid his written obligation by simply stating that A. or B. or C. told him that he had stolen $2,000 of the bank funds? Such a defense does not depend upon who stole, — whether he be a stranger or employé. If the position of the learned counsel for the defendant be true, then a bank cashier can defend against his written obligation securing a deficit by coming into court years afterwards and saying: “I told the directors or president at the time I secured this deficiency that one A., a stranger, told me that he went into the bank one day and stole the funds.” Such a statement is hearsay, and wholly incompetent when the question comes up between employer and employé, and it is essential for the employé to establish a theft in order to relieve him from liability. The testimony was received under objection and exception. It is immaterial that Mr. Barnes, the president, believed what defendant told him. This neither bound the bank nor proved the theft. Furthermore, the money, if taken by the son, might have been taken under such circumstances as not to relieve defendant from liability, and upon this point there is an entire absence of proof. In order to avoid his voluntary agreement, entered into and accepted in good faith, and acted upon for a long period, the defendant now seeks to defend by proclaiming his son a felon, and to do so without giving his son a chance to be heard. Courts will not permit such a defense to be established by bare hearsay.

Judgment reversed, and new trial ordered.

Moore, J., concurred with Grant, C. J.

Long, J. I think the case should be reversed upon the last point suggested by my Brother Grant. I cannot agree with him, however, upon the other questions.

Hooker, J., concurred with Long, J.

Montgomery, J.

(dissenting). I think the testimony tended to show that the only consideration for defendant’s promise was the assumed defalcation of the son of defendant. There was no extension of time as to him. There was no release of the son, no novation, and hence no legal consideration for defendant’s promise.

The judgment should be affirmed.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    PEOPLE v. BACON.
    1. Intoxicating Liquors — Keeping Place for Sale — Intent.
    The intent is no ingredient of the offense of keeping a place where intoxicating liquors are sold, stored for sale, given away, or furnished, in violation of the local option law.

      2. Same — Instructions—Harmless Error.
    Upon a prosecution for keeping a place for the sale of in toxicating liquor in violation of the local option law, the giving of an instruction, not based on the evidence, to the effect that the posting of a revenue receipt is in such cases prima facie evidence of guilt, is not reversible error, if the probability of the jury’s having been misled thereby is removed by further instructions given at the request of the respondent.
    Exceptions before judgment from Yan Burén; Buck,J.
    Submitted January 28, 1898.
    Decided May 24, 1898.
    John Bacon was convicted of violating the local option law.
    Conviction affirmed.
    Respondent was convicted of keeping a place where intoxicating liquors were sold, given away, or furnished, contrary to the local option law in force in Yan Burén county. The place is described in the information as “a certain room on the ground floor of a certain building known as and called the ‘Bacon Carpenter Shop,’ situate on the south side of Main street in the village of Grand Junction.” The evidence on the part of the people tended to show that on one occasion he had a bottle of whisky in his shop, and gave drinks to one Bush and one Moter; that respondent wanted Bush to swear that it was root beer; that on another occasion a bottle of whisky and a glass were on the bench; that on another occasion a bottle of whisky or brandy and a glass were there; and that on still another occasion he had a jug of whisky, and gave one Rooker two or three drinks and a bottle of whisky. Some of these parties were boys, and became intoxicated, one being found by his father in a state of helpless intoxication, and carried home by him. There was no direct testimony that respondent received pay for this liquor.

      Hammond & Hammond (T. J. Cavanaugh, of counsel), for appellant.

      Fred A. Maynard, Attorney General, and James E. Chandler, Prosecuting Attorney, for the people.
   Grant, C. J.

(after stating the facts). The statute makes it “unlawful for any person * * * to keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away, or furnished,” etc. 3 How. Stat. § 2283a. The case was submitted to the jury upon the theory that, if they should find the facts as stated in the testimony on behalf of the people, the respondent was guilty, but, if they should find them as stated in the testimony on behalf of the respondent, they should acquit. Two questions are raised which it is of importance to discuss.

It is urged that the court should, as requested, have instructed the jury that they must find an intent on the part of the respondent to violate the law, in order to convict him of the offense. This is not a case where the intent is an ingredient of the offense. If the facts proven justify the conclusion that he kept and furnished liquors in his shop for others who might come there to drink, the offense was complete, and the intent was immaterial.

The court, in instructing the jury, stated to them that the law provided that “proof of a single sale of any one or more of the liquors or beverages mentioned in this act, or of the posting in any distillery, brewery, saloon, or other place of business of a United States revenue receipt permitting the manufacture or sale, * * * shall be presumptive evidence,” etc. This is urged as error, because there was no positive proof of a sale, and no proof whatever of the posting of the notice mentioned. We must concede to a jury a fair degree of intelligence; and to hold that they were misled into believing that there was evidence of posting such notice, and based their verdict upon .that, would be a reproach to their intelligence. It is a fair inference from the requests of counsel, as shown by the record, that it was contended by the people that the respondent was guilty of a sale, and that he was not so disinterested a lover of his fellows as to ‘ furnish them liquor for nothing. We are not prepared to say that such an inference may not be drawn from the evidence. But, be this as it may, we think that the instructions given to the jury at the request of respondent remove all probability that the jury were misled by the instructions complained of. These instructions are as follows:

“You are instructed that, in order .to convict the respondent, you must be satisfied from the evidence, beyond a reasonable doubt, that between the said dates the respondent not only kept a place on the ground floor of said building in Grand Junction, but that he kept it for the purpose of selling, giving away, or furnishing intoxicating liquors.
“If it should appear to you from the evidence that the respondent at times had kept in his possession intoxicating liquors, purchased by him for his own use, and that on one or more occasions a party or parties helped themselves to such liquor while the respondent was intoxicated to such an extent that he was not aware and did not know .what was going on, then, under those circumstances, respondent would not be guilty of any offense, and, if the evidence in the case shows no more than this, then your verdict must be‘Not guilty.’ * *' * It is provided by the local option law that proof of a single sale of liquor at the time and place alleged in the information shall be prima facie evidence of the keeping of a place where liquors are sold and kept for sale. That does not mean that proof of one or more illicit gifts is sufficient to warrant you in finding beyond a reasonable doubt that the respondent kept a place for the sale of intoxicating liquors, as alleged in the information, if, under all the facts and circumstances in the case, you are not satisfied beyond a reasonable doubt that he did keep a place for the illegal selling of liquors. And, if you are not so satisfied, then, notwithstanding you may find it to be proved that the respondent did on one or two occasions give away liquor, you would not be at liberty to find him guilty. The law provides that proof of a single sale within the time covered by the information shall be presumptive evidence that the respondent did keep a place where intoxicating liquor was sold or kept for sale. You should not understand, however, that such proof is conclusive evidence thereof. And if, in yiew of all the other facts and circumstances in the case, you are not satisfied beyond a reasonable doubt that the respondent, between the dates alleged in the information, kept a place as charged therein, for the sale, giving away, or furnishing of liquor, then you should acquit.”

Error is assigned upon the refusal to give certain other requests. We think they are sufficiently covered by the oral charge.

Conviction affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. SCHOONMAKER.
    1. Statutory Rape — Consent—Conclusive Presumptions.
    A female under the age of 16 years is, under the statute, conclusively presumed to be incapable of consenting to sexual intercourse.
    2. Marriage — Legality—Evidence.
    The presumption from proof of a marriage ceremony by an officer authorized to perform it is in favor of the legality of his act.

    3. Guardian and Ward.
    A stepfather is not a natural guardian of an orphan child.

      4. Witnesses — Husband and Wife.
    A wife is not a competent witness against her husband upon a prosecution for rape, based upon his having had intercourse with her before their marriage, while she was yet under the age of consent.
    Exceptions before judgment from Emmet; Adams, J.
    Submitted January 28, 1898.
    Decided May 24, 1898.
    Earl Schoonmaker was convicted of statutory rape.
    Reversed.

      B. T. Halstead, for appellant.

      Fred A. Maynard, Attorney General, and Clay E. Call, Prosecuting Attorney, for the people.

       The presumptions flowing from a marriage ceremony are considered in a note to Megginson v. Megginson, ( Or.) 14 L. R. A. 540.

   Montgomery, J.

The respondent was convicted of statutory rape. The complaining witness was at the time under 16 years of age. It is not claimed that the act of intercourse was against, the will of the complaining witness, but the offense is under the statute ample without such proof, as she is in the law incompetent to give consent. People v. Ten Elshof, 92 Mich. 167.

When the complaining witness was called to the stand, she was interrogated by the respondent’s counsel as to her competency. From the examination it appears that she had gone through a form of marriage with respondent before the judge of probate of Emmet county. Under certain conditions such a marriage is authorized by the terms of Act No. 180, Pub. Acts 1897. The prerequisite conditions were not affirmatively shown by the respondent or testified to by the witness. But, if the fact of marriage rendered her incompetent to testify to the facts in this, case, the presumption from proof of a ceremony by an officer authorized to perform it is in favor of the regularity and legality of his act. 2 Whart. Ev. § 1297; 1 Bish. Mar., Div. & Sep. § 946.

The evidence shows that the complaining witness is an orphan, and that her stepfather did not give his consent to the marriage. The circuit judge was of the opinion that this fact overcame the presumption of regularity. This view cannot be sustained. The stepfather is not a natural guardian of the child. Schouler, Dom. Rel. § 298.

The question is therefore presented as to whether the wife is a competent witness to the act charged as occurring before marriage. It is to be noted that Act No. 180, Pub. Acts 1897, makes no provision on this subject, and that, therefore, the general statute, 3 How. Stat. § 7546, must govern. That section declares the general incompetency of the wife,.and contains an exception of cases where “the cause of action grows out of a personal wrong or injury done by one to the other.” This provision is declaratory of the common law, and has its origin in the recognized necessity of protection to the injured spouse. Whart. Cr. Ev. § 393; Lord Audley’s Case, 3 How. St. Tr. 402. The exception has also been applied in cases of abduction followed by marriage. Wakefield’s Case, 2 Lewin, Crown Cas. 279; Reg. v. Yore, 1 Jebb & S. 563. But we know of no case which extends the exception to the general rule further. The marriage in this case was not induced by the wrong of which the witness was permitted to give testimony, and we think the case does not fall within the spirit of the exception to the general rule. The wife was not a competent witness.

The conviction will be set aside, and a new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    ROBINSON v. KUNKLEMAN.
    1. Equity Practice — Demurrer—Appeal.
    No appeal will lie from an order overruling a special demurrer to a bill in chancery.
    2. Same — Chancery Bules.
    A demurrer which would have been good as a general demurrer prior to Chancery Buie No. 9 is none the less so because, under that rule, the special reasons in matters of substance are required to be stated. So held, where the demurrer interposed set forth, as special reasons, prior adjudication, want of equity, and want of jurisdiction.
    3. Same.
    A general demurrer challenges the equity of the case made by the bill, and will be overruled if a case for equitable relief is set out, however imperfectly.
    4. Judgments — Satisfaction—Set-oee.
    The satisfaction of a judgment may be wholly or partly produced by setting off a judgment against the judgment creditor in favor of the judgment debtor; and the judgment sought to be so set off against each other need not have been rendered in the same court.
    5. Same — Courts.
    The power of setting off judgments is one of general equitable jurisdiction, the right to exercise which is not confined to the chancery court of the county where the judgments sought to be set off were rendered, but rests in any court of equity which acquires jurisdiction of the parties and of the subj ect-matter.
    6. Same — Beplevin—Goods Fraudulently Purchased — Action on Account.
    In replevin for goods alleged to have been purchased with a fraudulent purpose not to pay for them, the account for the value of the goods sold is not involved, and the plaintiff, though defeated in the replevin suit, may sue upon the account.
    7. Equity Jurisdiction — Statement oe Amount Involved.
    A bill alleging that the amount owing by complainant upon a judgment sought to be subjected to set off is ¡¡¡>100, over and above any and all claims or liens which, so far as he is advised, any j>ersons claim to have against said judgment, is not demurrable as failing to state an amount sufficient to confer jurisdiction upon the court.
    Appeal from Wayne; McMahon, J., presiding.
    Submitted February 2, 1898.
    Decided May 24, 1898.
    Bill by Adolph Robinson and Sigmund Aronheim against Joseph Kunkleman and George Lovely for a set-off of judgments. From an order overruling a demurrer to the bill, defendant Lovely appeals.
    Affirmed.

      Bowen, Douglas & Whiting, for complainants.

      Smith & Hood, for appellant.
   Long, J.

The bill filed in this cause sets out, substantially, that prior to January, 1896, complainants were copartners engaged in the wholesale liquor business at Detroit; that at that time defendant Kunkleman was a retail liquor dealer in the city of Lansing, and that about January 3, 1896, complainants sold him on credit certain liquors of the value of $269.13; that about the 7th of January, 1896, Kunkleman placed his business in charge of defendant Lovely; that about the 14th of January complainants, under the claim that Kunkleman had fraudulently purchased the goods with a fraudulent purpose not to pay for them, demanded the goods of Lovely, and, upon being refused, brought replevin in the circuit court for Ingham county; that afterwards, and in December, 1896, the replevin suit was tried in the said circuit court, and a verdict rendered in favor of Lovely, who waived a return of the property, and was awarded judgment against complainants in the sum of $257.80 and costs; that no appeal was taken therein, and that such judgment remained in full force and effect in the circuit court for the county of Ingham; that, on the trial of said cause, defendant Lovely was sworn as a witness in his own behalf, and testified that he had never bought the said goods and merchandise of said Kunkleman, and at no time had he any interest therein except as agent for Kunkleman; that defendant Kunkleman was also sworn as a witness in behalf of defendant in said replevin suit, and testified, in substance and effect, that he had never sold said goods and merchandise to Lovely, but that he had put said Lovely in charge of the goods and merchandise, to sell the same for him as his agent; and that Kunkleman further testified on the trial of said replevin suit that he had never informed Aronheim that he had sold or traded the said goods. The bill then alleges that, at the time when the replevin suit was commenced, the possession óf Lovely was the possession of Kunkleman, and that the judgment recovered by Lovely was in fact a judgment in favor of Kunkleman, although in name in favor of Lovely.

The bill further alleges that afterwards, and in January, 1897, complainants brought suit against Kunkleman to recover'for the goods sold, before one William Ennis, a justice of the peace of the city of Lansing, and that on the 30th of January they recovered judgment against him, on account of the goods sold, for $269.13 and costs; that such judgment was unsatisfied at the time of filing the bill, and remained of record before the justice; that Kunkleman was insolvent at the time the judgment was rendered, and still is insolvent. The bill avers that complainants are ready and offer to pay into court the difference between the amount of the judgment held against them by Lovely and the judgment which they hold against Kunkleman; that the amount now owing by them on the Lovely judgment is the sum of $100, “over and above any and all claims or liens which, so far as your orators are advised, any person or persons claim to have against said judgment.” The bill then prays that Lovely and Kunkleman may be enjoined from selling, assigning, or disposing of the judgment rendered in the replevin suit, and prays that the moneys owing complainants from Kunkleman on the judgment recovered against him before Ennis, justice of the peace, may be set off against the judgment recovered against them by Lovely in the replevin suit, and that, on the payment-of the difference between the amount due on the judgment obtained by Lovely against complainants and the amount due complainants against Kunkleman, “the said judgment in said replevin suit may be discharged, and your orators, and each of them, freed from any and all liability thereon.” The bill then concludes with prayer for process.

The following demurrer was interposed:

“That the complainants have not stated such a case in their bill as entitles them to relief in a court of equity, for the following reasons:
‘ ‘ For that said bill should have been filed, and said cause begun, if at all, in the circuit court for the county of Ingham, in chancery; it appearing by said bill that the action of replevin therein set forth was commenced, tried on the merits, and judgment rendered therein, in the circuit court for the county of Ingham, and that the judgment alleged to have been recovered by said complainants against said defendant Kunkleman was also recovered in a justice’s court for the county of Ingham, and is now of record therein, and any action or suit to set off any thing or matters against said judgment in replevin, or vacate or impair the validity thereof, is local, and must be commenced in the county where the judgment was rendered, and that the circuit court for the county of Wayne has no jurisdiction to entertain said bill.
“For that all material facts set forth in said bill of complaint were available and proper matters of defense in said action of replevin, and were necessarily adjudicated therein, and are therefore res judicata.
‘ ‘ For that no mutuality exists or is alleged to exist between the debt or judgment recovered by said defendant Lovely against said complainants and the judgment recovered by said complainants against said defendant Kunkleman.
“For that it is not alleged that the interest of said Lovely in the judgment recovered by him amounts to the sum of $100 over and above the liens thereon in favor of his counsel in recovering such judgment, as well as all other services performed by such counsel for said Lovely.
“For that it is not alleged in said bill that the facts upon which the set-off is now claimed were unknown to complainants at the time the action of replevin was tried,
“For that neither fraud, accident, mistake, nor other causes for equitable relief are alleged or shown to have contributed to, or have been the cause of, the rendition of the said judgment in replevin recovered by the said George Lovely against the said complainants.
“For that it appears by said bill that all the several matters and things therein alleged against the enforcement of the said judgment recovered by said Lovely in said replevin suit against complainants were, if valid, available to said complainants in defense of the judgment recovered by said Lovely.
‘ ‘ For that said bill and the relief therein prayed seeks to prevent and delay the attorneys and counsel of said Lovely from the collection of their lien and interest upon and in the said judgment in replevin pending litigation in this cause.”

The demurrer was overruled, and from this order the defendant Lovely appeals.

Complainants contend that the demurrer is special, and not general, and therefore the order overruling it is not one from which an appeal will lie, under section 6737, 2 How. Stat., which provides that “any complainant or defendant who may think himself aggrieved by the order overruling a general demurrer, or by the decree or final order of a circuit court in chancery in any cause, may appeal therefrom to the Supreme Court.” Prior to the enactment of this statute, in 1883, no appeal would lie from an order overruling a demurrer. Bennett v. Nichols, 12 Mich. 25; Kirchner v. Wood, 48 Mich. 199. Since the passage of the act of 1883, it has many times been held that appeals will lie only from orders overruling general demurrers. Turck v. Soule, 55 Mich. 128; Shaw v. Chase, 77 Mich. 436; Babcock v. McJury, 76 Mich. 316; Taylor v. Taylor, 87 Mich. 64; Greenley v. Hovey, 115 Mich. 504;

Rule 9 of the new chancery rules provides that—

“The form of a demurrer may be as follows: ‘The defendant says that the complainant has not stated such a case in his bill as entitles him to relief in a court of equity, for the following reasons:’ (adding briefly but plainly the special reasons in matters of substance in a general demurrer, as well as matters of form in a special demurrer).”

It was held in Greenley v. Hovey that this rule requiring the reasons for a demurrer to be stated therein was not intended to enlarge or abridge the rights of the parties to appeal from an order overruling a general demurrer. A general demurrer challenges the equity of the case made by the bill, and will be overruled if a case for equitable relief is set out, however imperfectly. Glidden v. Norvell, 44 Mich. 206. But, under rule 9, the general demurrer may now contain special reasons in matters of substance. These special reasons do not make the demurrer any the less a general demurrer. The demurrer in the present case must be treated as general, and the order overruling it properly appealed from.

In the case of Greenley v. Hovey the special reasons stated in the general demurrer were: (1) That the bill contained no allegation of any tender of the taxes due on the property, nor any offer to pay. (2) That the auditor general was not made a party. The demurrer was overruled below, and the order appealed from; and it was determined here that it was a general, and not a special, demurrer.

The questions, therefore, raised under the demurrer, must be determined upon this appeal.

It appears from the bill that the judgment obtained against complainants in the Ingham circuit court was in fact a judgment in favor of defendant Kunkleman. Complainants have a valid judgment against Kunkleman, and the court is asked by the bill to compel Kunkleman to allow the judgment rendered in complainants’ favor to be set off against his judgment in the Ingham circuit court. Counsel for defendant contend that the Wayne circuit court, in chancery, has no jurisdiction over the subject-matter, for the reason that the defendant’s judgment is in the Ingham circuit court, and that court alone has control of the judgment. Counsel cite several cases which they contend support this view. These cases hold that one court cannot control the execution of the orders and processes of another court of equal jurisdiction. Plunkett v. Black, 117 Ind. 14, and cases there cited. It was held in Maclean v. Wayne Circuit Judge, 52 Mich. 257, that, when a court of competent jurisdiction has become possessed of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and no court of co-ordinate authority is at liberty to interfere with its action. In that case a proceeding was commenced in the Wayne circuit court, in chancery, to obtain a new trial in a cause which had been tried in the superior court of Detroit. The bill filed in the Wayne circuit court, in chancery, alleged the misconduct of the jury in the superior court, and cancellation of the judgment was asked in consequence of it. In the present case the process of the Wayne circuit court, in chancery, operates upon the parties, and not upon the Ingham circuit court. No attack is made upon the judgment of the Ingham circuit. It proceeds upon the theory that a valid judgment exists in the Ingham circuit against complainants, but says to Kunkleman, the party owning such judgment, that the complainants have a valid judgment against him, and that, in equity and good conscience, one judgment should be set off against the other. It is a matter which a court of chancery alone can control.

But counsel say, if a court of chancery should interfere, the action must be brought in the Ingham circuit court, in chancery. That is not the court in which the judgment is of record, and that court has no greater power over it than the Wayne circuit, in chancery. Douglass v. Joyner, 1 Baxt. 32. In Massie v. Mann, 17 Iowa, 131, it was held that an execution issued upon a judgment of the supreme court might be enjoined by the district court of the county in which it was sought to be enforced. It is true that courts will not grant an injunction to stay proceedings in another court having the same power to grant relief. Under the circumstances stated in this bill, the Ingham circuit court would have no power to set off one of these judgments against the other. That question is peculiarly within the province of a court of equity. The complainants reside in Wayne county, and that court acquired jurisdiction of the parties and of the subject-matter. The decree rendered in the cause would operate upon the parties, and, under such a decree as the complainants would be entitled to if the allegations of the bill be supported by the proofs, the court could compel the set-off.

The rule is laid down in 2 Freeman on Judgments (section 467a) that the satisfaction of a judgment may be wholly or partly produced by compelling the judgment creditor to accept in payment a judgment against him in favor of the judgment debtor; or, in other words, by setting off one judgment against another. It is also said, in the same connection, that the judgments sought to be set off against each other may have been rendered in the same or in different courts. The learned author also lays down the rule that the court of law in which the judgment is entered can give relief by virtue of its equitable power, and may direct that the judgment of another court be credited upon or set off against its judgment, except when the rights of the parties are too intricate and complicated to be adjusted elsewhere than in a court of equity. The facts set up in the present case show that the judgment in the Ingham circuit court is in form in favor of defendant Lovely, but that equitably it belongs to defendant Kunkleman. Complainants’ judgment is against Kunkleman. Here are the facts to be established, and necessarily the parties must go into a court of equity to'establish them, and, the facts being established, that court could compel the defendant to allow the set-off. In Simpson v. Hart, 1 Johns. Ch. 94, it was said: “It has been observed that the power of setting off judgments, not only of the same but of different courts, did not depend upon the statutes of set-off, but upon the general jurisdiction of the court over its suitors, and that it was an equitable jurisdiction, and frequently exercised,” — citing Mont. Set-Off, 6; Mitchell v. Oldfield, 4 Term R. 123; Glaister v. Hewer, 8 Term R. 69.

But counsel contend that the judgment before the justice was upon an account which could have been set up in the original proceeding in the Ingham circuit. If the justice’s judgment could now be attacked in this collateral way, yet it must be held that the matter could not have been there litigated. That was an action of replevin, the complainants here claiming to be the owners of the goods in controversy. Defendant Lovely had them in possession, and they were replevied from him. He succeeded in that case in obtaining a judgment against complainants for their value. This did not involve the account against Kunkleman for the value of the goods sold.

It is also contended that the bill will not lie, for the reason that it does hot allege that the interest of Lovely in the judgment recovered by him amounts to the sum of $100, over and above the liens thereon, etc. The bill does allege that the amount now owing by them on the Lovely judgment is “the sum of $100, over and above any and all claims or liens which, so far as your orators are advised, any person or persons claim to have against said judgment.” We think this is a' sufficient statement of the amount involved to give the court jurisdiction.

No other questions need be discussed. The court below very properly overruled the demurrer. That order will be affirmed, with costs of this court in favor of complainants, and defendants allowed 20 days in which to answer the bill, if they so desire.

The other Justices concurred.


author: Moore, J.

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    ZLOTOECIZSKI v. SMITH.
    1. Mortgages — Statutory Foreclosure — Defective Notice.
    A statutory notice of foreclosure which, describes one of the. mortgagors as “Julia,” when her name is “Tofila,” and is so signed to the mortgage, is fatally defective.
    3. Same — Inequitable Conduct of Mortgagee.
    Foreclosure of a mortgage by advertisement, without giving to mortgagors unable to read English any actual notice that a small installment of interest has remained unpaid for 30 days, and that the mortgagee has accordingly, pursuant to a clause in the mortgage, elected to declare the principal immediately due, is oppressive, and entitled to no favor.
    Appeal from Saginaw; Wilber, J.
    Submitted April 5, 1898.
    Decided May 24, 1898.
    Bill by Joseph Zlotoecizski and Tofila Zlotoecizski against Rawson Smith, Arthur H. Swarthout and wife, and Herman Brandt and wife, to set aside a foreclosure sale. From a decree for complainants, defendants appeal.
    Affirmed.

      John A. McKay, for complainants.
    A. H. Swarthout, for defendants.
   Moore, J.

Defendant Smith was in 1892 a resident of the State of New York. Mr. Swarthout was his agent at Saginaw in loaning money. June 17, 1892, during the absence of Mr. Swarthout from the State, Mr. Hudson was in charge of his office, and attended to his business. The complainants, who are from Poland, and are unable to read or write the English language, negotiated a loan from Mr. Hudson; and a mortgage was given upon a lot owned by them to Mr. Smith, for $130. There was paid to complainants at this time $118. The principal was payable, by the terms of the mortgage, in three years. The interest was 8 per cent., payable semi-annually. January 31, 1893, Mr. Swarthout commenced foreclosure proceedings, by advertisement, to foreclose the mortgage. May 6, 1893, the premises were sold to' Mr. Swarthout' for $175.76. July 14, 1894, Mr. Swarthout and his wife deeded the premises to Herman Brandt, for $237.50. Soon after this, Mr. Brandt notified complainants that he was the owner of the premises. The complainants then tendered to Mr. Swarthout and to Mr. Brandt $153.64, and demanded a discharge of this mortgage. Their demand was refused. They filed this bill to have the foreclosure sale set aside, and to have the amount due on the mortgage computed, and offered to pay the amount due, and asked that upon their payment of the same the mortgage be discharged. Upon the hearing, the circuit judge found that the $12 retained at the time the mortgage was made was retained as a payment of interest in advance. He found that there was nothing due upon the mortgage when the foreclosure proceedings were commenced. He also found that the name of one of the mortgagors was “ Tofila,” while she was described in the foreclosure notice as “Julia,” and that defendant Brandt was not an innocent purchaser. He found that the foreclosure sale was void, and directed the deeds from the sheriff to Mr. Swarthout, and from Mr. Swarthout to Mr. Brandt, to be set aside. From this decree, defendants appeal.

There is testimony tending to show that the complainants understood a payment of interest was made in advance, but, upon considering all the testimony, I do not think the fact is established.' The complainants were not at all clear in their testimony, while Mr. Hudson’s testimony was a detailed statement of what occurred, and it is corroborated by the testimony of Mr. Beelack, who came with the complainants to negotiate the loan. It is claimed by them that the $12 was made up of expense for abstract, for recording the mortgage, $3 to Beelack for his services, and $6.50 commission to Mr. Hudson and Mr. Swarthout for examining the property and making the loan.

It is claimed that there are irregularities in making the sale, which avoid it. There is a clause in the mortgage that, if the interest is unpaid for 30 days after it becomes due, the mortgagee may elect to consider the principal due, and that the commencement of proceedings to foreclose shall be sufficient notice of such election. The mortgage also provides for the payment of a reasonable sum as an attorney’s fee in case of foreclosure. Mr. Swarthout testified that he wrote complainant Joseph Zlotoecizski that interest was unpaid, and that, if not paid, he should foreclose. Complainant testified that he never got the notice, and that, one year after the mortgage was made, he went to the office where the mortgage was made, to pay the interest, and found that Mr. Swarthout had moved, and that he made efforts to find him, and could not. No notice was served upon complainants of an election to treat the principal as due, and no notice was contained in the mortgage foreclosure of the intention to elect. When the foreclosure proceedings were commenced, according to the terms of the mortgage, one payment of $5.20 of interest was due and unpaid. The notice of sale stated that there was due $126.41. If the principal was treated as due, this amount was too little. If it was not treated as due, it was more than $100 too much. At the sale, the property was sold upon the theory that there was $140.56 due. To this amount was added an attorney’s fee of $15, printer’s.fee of $14.70, though but $11.03 was paid to the printer, and $3 to the sheriff, and $2.50 for fees of the register of deeds. The land was sold for the aggregate of these amounts, $175.76, to Mr. Swarthout. No money was paid to the sheriff except his fee of $3. The notice stated that the mortgage was made by Joseph Zlotoecizski and Julia, his wife. The testimony disclosed that her name was signed to the mortgage as “Tofila;” and her name was “Tofila,” and “Julia” is not the English equivalent of that name.

As before stated, the complainants do not read English. It does not appear from the record that they had any knowledge of the clause in. the mortgage that the principal could be declared due if an installment of interest remained unpaid for 30 days. It also discloses that, at the time complainants supposed the interest was due, they made an attempt to pay it. Mr. Hudson testified that, when the loan was negotiated, he saw the property, and inquired about its value, and thought it worth $260. The complainants lived in the same city as Mr. Swarthout, and it ought not to have been much trouble to find them. There is evidence tending to show that Mr. Brandt had attempted to buy of the complainants the property covered by the mortgage, which was a lot adjoining his, and failed. Within three days after he learned it could be bought of Mr. Swarthout, he purchased it for upwards of $237; and the fact that, as soon as the complainants learned that it had been sold, they made a tender of more than $153, shows very conclusively that they considered the property worth more than was due on the mortgage. This property was sold without any actual notice to the complainants that the mortgagee had elected to declare the principal sum due, and without any statement in the notice of sale that he had so elected. The proceedings have worked a great injury to the complainants. In relation to a like clause in a mortgage, it was said in Wilcox v. Allen, 36 Mich., at page 169:

“This clause is in the nature of a forfeiture or penalty. Its object is to punish for a willful neglect of a clear duty; and to hold it applicable to, and apply it in, a case where there was an honest dispute, would be harsh and unjust, and contrary to all well-settled equitable principles.”

From what we have already said, it is evident that complainants were not guilty of any willful neglect in not paying what they understood to be due. The amount of interest due and unpaid was but $5.20. Complainants understood that the principal sum would not be due for three years, at least, while there is some testimony that they did not expect it to become due for six years. In Mabie v. Hatinger, 48 Mich. 341, the act of foreclosing for so small an installment of interest was condemned, and characterized as unjust and oppressive. See Louder v. Burch, 47 Mich. 109; Millard v. Truax, 50 Mich., at page 346.

2 How. Stat. § 8500, subd. 1, requires the notice of sale to specify the names of the mortgagors. In this case, one of the mortgagors, whose name was “Tofila,” was described as “Julia.” This is not two different ways of spelling the same name, as was the case in Reading v. Waterman, 46 Mich. 111, but the names are different from each other (see Lee v. Clary, 38 Mich. 223); and we think that stating the name of the mortgagor in the notice to be “Julia,” when the name in fact is “Tofila,” is a fatal defect in the notice.

This is a proceeding that does not commend itself to our sense of justice. As soon as complainants learned that anything had been done to foreclose the mortgage, they made a tender of the full amount due thereon. For the irregularity mentioned, the sale should be set aside, and, upon the payment of the amount.tendered, the mortgage should be discharged. A decree may be entered accordingly, with costs to complainants.

Grant, C. J., Montgomery and Long, JJ., concurred with Moore, J. Hooker, J., concurred in the result.


text:
      In re PFEFFER’S ESTATE.
    Appeals from Probate Court — Exceptions to Administrator’s Account — Advisory Verdict of Jury.
    That the circuit’ judge, on an appeal from the allowance of an administrator’s final account, took the verdict of a jury as to the compensation to be allowed for attorney’s services and the services of commissioners on claims, and allowed the amounts found by the jury, is no reason for disturbing the judgment, where there is nothing to indicate that the verdict was not satisfactory to the court, or that he regarded it as other than advisory.
    Error to Wayne; Hosmer, J.
    Submitted April 5, 1898.
    Decided May 24, 1898.
    Mary Loeser appealed from an order of the probate court allowing the final account of Frederick Zimmer, as administrator of the estate of Gustav Pfeffer, deceased. The order of the probate court was modified in the circuit, and the administrator brings error.
    Affirmed.

      Frank A. Noah (John G. Hawley, of counsel), for appellant.

      James H. Pound, for appellee.
   Long, J.

Gustav Pfeffer died intestate; leaving a brother and sister, his heirs at law. His estate consisted of real estate valued at $6,000, and personal estate valued at about $11,000, all situate in the city of Detroit. Frederick Zimmer was appointed administrator, April 5, 1893. Commissioners on claims being appointed, claims of about $6,300 were presented for allowance against the estate. The administrator contested these claims, and employed Mr. Noah, an attorney of Detroit, as attorney for the estate in the matter. The commissioners allowed a portion of the claims, and disallowed others, and appeals were taken to the circuit court by the claimants. Mr. Noah notified the heirs at law of these appeals, and stated that he was an important witness in the case for them, and advised the employment of other counsel. Mr. James H. Pound, of Detroit, was then employed by them, and he defended the cases in the circuit court for the heirs. Mr. Noah was present in court during the time of these trials, and was called as a witness, and testified, in behalf of the estate. After these cases were disposed of, the commissioners on claims presented their account for services to the judge of probate, and were allowed $75 each, which the administrator paid. The administrator then presented his final account for settlement; showing an indebtedness to Mr. Noah; for services, of $900, and to himself, as general and special administrator, $600. Deducting these and other accounts, it left a balance in his hands of $1,042.60. This settlement of final account was heard before Judge Carpenter, sitting as probate judge, and allowed as charged. From this decree Mary Loeser, one of the heirs at law, appealed to the circuit court for Wayne county.

The appeal came on to be heard in the circuit court before Judge Hosmer, and counsel for appellant stated that but three items of the account would be contested, viz.: The compensation allowed the administrator, the amount allowed for services of the attorney of the administrator, and the amount allowed for services of the commissioners on claims. Counsel for the administrator objected to the appeal being tried before a jury, claiming that the matters in dispute were not proper for the consideration of a jury. This was overruled, the court saying that he would treat the verdict of the jury as advisory. The jury rendered a verdict in the case by which they found that the estate owed to the attorney, Mr. Noah, the sum of $500, and to the two commissioners on claims $75. The court also made a finding in which it is stated that Mr. Zimmer, the administrator, performed no services to the estate which, would come under the term “extraordinary,” and fixed his compensation at $300. The court further found that the administrator, being allowed credit for all charges and expenditures against the estate which he was entitled to, and charged with what he admits he should be charged, should pay over to the estate the sum of $2,017.55. On motion for new trial this sum was reduced to $1,781.28; so that the only questions here relate to the compensation to be allowed to the administrator, attorney, and commissioners.

It is contended that the court was in error in calling a jury in the case, and submitting the question to them as to the compensation to be allowed for attorney’s services, and the services of the commissioners on claims. The court stated to the jury the questions they were to.pass upon. He said:

‘ ‘ I am a little in doubt as to the province of the court and the province of the jury in this particular case; but, at least, your verdict, if not binding upon the court, may be advisory, both as to the value of Mr. Noah’s services, and as to the value of the services of the commissioners on claims.”

The court then framed the following questions for the jury to answer: “(1) What is the value of Mr. Noah’s services to the estate ? (2) What are the services of the commissioners on claims reasonably worth?” The court, in submitting these claims, stated fairly what the testimony tended to show. As we have seen, the court reserved the question of the compensation of the administrator, and made a finding thereon without that question going to the jury.

In Gott v. Culp, 45 Mich. 265, it was held that certain matters in a guardian’s account could not well be determined by a jury; and the same rule would apply to accounts of administrators. The allowance or disallowance of matters which are discretionary with the court could not be so submitted, and neither could a claim for extraordinary services. Wisner v. Mabley's Estate, 70 Mich. 271. But it appears in this case that the court, in submitting the questions of fact to the jury, stated that the verdict would be at least advisory. There is nothing in this record to indicate that the verdict was not satisfactory to the court, or that the court did not receive it as advisory merely.

The administrator had included in his final account moneys due Mr. Noah for his services as an attorney. The testimony was conflicting, not only as to the extent of the services rendered, but also as to their value. Several attorneys were called to testify in the case -as to such value, and they were not agreed as to the value. It became a question of fact for determination in the case. The administrator had the right, in the discharge of his trust, and in this instance it was his duty, to employ counsel in the litigation which was brought upon the estate.

The court found that the administrator performed no services which would come under the term ‘ ‘ extraordinary,” and, we think, very properly, under the facts shown.

While the statute (3 How. Stat. § 9023) provides the compensation to the commissioners on claims, yet it appears that the court disposed of that question as he did of the attorney fees, under the evidence given; taking the verdict of the jury as advisory thereon.

We see no reason for disturbing the judgment below. That judgment is affirmed.

The other Justices concurred.


text:
    ELK RAPIDS IRON CO. v. TOWNSHIP OF HELENA. SAME v. TOWNSHIP OF MILTON.
    Taxation — Forest Products — Where Assessable.
    Act No. 206, Pub. Acts 1893, § 14, subd. 8, provides that all forest products shall be assessed in the township where the same may be on the second Monday in April of the year when the assessment is made, except that, where such property is in transit to some place within the State, it shall be assessed at such place. Section 15 provides that forest products in transit on the assessment day, and thereafter found in the waters or streams of the State, or on the banks or shores of any stream, when the same is not at the place where it is to be manufactured, shall be held to have a place of destination at the sort" ing grounds nearest the mouth of the stream, “unless the contrary shall be made to appear: ” Provided, that products piled or left in any yard, railroad reserve, or shed shall not be deemed in transit. Held, that products banked on the shore of a stream, only awaiting suitable condition of the water for transportation to the owner’s mill for manufacture, are in transit, and are assessable at the place of manufacture.
    Case made from Antrim; Corbett, J.
    Submitted April 6, 1898.
    Decided May 24, 1898.

      Assumpsit by the Elk Rapids Iron Company against the townships of Helena and Milton to recover taxes paid under protest. Judgments were rendered for defendants, and plaintiff assigns error.
    Reversed.
    Plaintiff is a manufacturing corporation carrying on chemical works, an iron furnace, and a sawmill. It is located in Elk Rapids, where are its plants, stores, offices, and place of business. It uses annually a large amount of forest products, which are procured from the neighboring townships. In these townships are streams and lakes, over which these products are conveyed to its plants at Elk Rapids. These products have been for many years purchased from settlers and landowners around these waters. They were gotten out mostly in the winter, and transported by teams to suitable banking grounds, approachable by scows and barges. When delivered upon these grounds, they were inspected, measured, and paid for by the plaintiff. The wood was loaded on scows, and the logs, in booms and rafts, were towed to Elk Rapids. This was usually done at the opening of navigation. During the winter of 1893 and 1894 a large amount of wood and logs had been gotten out, and placed upon the usual banking grounds, and during the season of 1894 was taken to Elk Rapids. The supervisors of the defendant townships assessed this property to the plaintiff on the second Monday in April, 1894. At that time the property had been purchased, paid for, delivered to the plaintiff’, and was awaiting the opening of navigation for transportation to Elk Rapids. The logs were in rollway piles on the ground on the shore, and the wood, four feet in length, was piled in rows ready for loading on the scows. Plaintiff commenced to move its property as soon as navigation opened, — ■ about May 1st. The supervisors were familiar with the business of the plaintiff, and the manner of transporting said products, and believed that it did honestly intend, in good faith, to transport the same oyer the waters to Elk Rapids for use in its business, but were advised and believed that under the law they were not in transit, and were therefore subject to taxation in the township where they were situated. Levies were threatened, and plaintiff paid under protest, and instituted these suits to recover the amount so paid. In Milton township, 180,000 feet of logs had remained there a year; and in Helena township, 115,000 feet. It appears, however, that the plaintiff left them there only for the reason that it was unable to transport them during the previous season. The same property was assessed at Elk Rapids, and the taxes thereon paid. The above are the stipulated facts. Judgments were rendered for the defendants.

      Fitch R. Williams, for appellant.

      Totten & Phelps, for appellees.
   Grant, C. J.

(after stating the facts). The statute provides that all forest products “shall be assessed in the township or ward where the same may be * * * on the second Monday of April of the year when the assessment is made, except that, where such property is in transit to some place within the State, it shall be assessed 'in such place.” Act No. 206, Pub. Acts 1893, § 14, subd. 8. Section 15 of the same act is as follows:

“All forest products in transit on the second Monday in April in each year, and thereafter found in the waters or streams of this State, or on the banks or shores of any lake, pond, or stream of this State, when the same is not at the place where it is to be manufactured, shall be held to have a place of destination at the sorting grounds of the rafting and driving agents or booming company nearest the mouth of the stream, unless the contrary shall be made to appear by the owner or party having the same in charge: Provided, that all lumber, logs, timber, lath, pickets, shingles, posts, cordwood, tanbark, telegraph or telephone poles, or railroad ties, that may be piled or left in any yard, railroad reserve, or in any shed, shall not be deemed in transit, but shall be assessed to the person or corporation having control of the yard, railroad reserve, shed, or place of storage where the same may be situated at the time provided by law for taking such assessment.”

The sole question is, Were these products in transit at the time of the assessment ? It is conceded that, from the moment these logs were cut in the woods, they were intended to be transported from there to plaintiff’s mill at Elk Rapids for manufacture, and that the only delay contemplated was that caused by the condition of the water. Reliance is placed mainly upon Hill v. Graham, 72 Mich. 659. That decision was rendered in November, 1888, under the act of 1885 (Act No. 153, § 11, subd. 4). The law of 1885 was amended in 1889 (Act No. 195), adding, after the words “streams of this State,” these words: “or on the banks or shores of any lake, pond, or stream of this State, when the same is not at the place where it is to be manufactured.” It is fair to presume that the amendment of 1889 was made in view of the decision of Hill v. Graham. In that case the jury were instructed that if the logs in question were not in the waters or streams, were not actually started on their way, but were in unbroken piles, awaiting the breaking up of the river or rise of water before starting, the mere intent of the ownérs, unaccompanied by any acts showing their purpose to drive the logs, would not justify the finding that the property was in transit. The jury undoubtedly found, and based their verdict upon the fact, that the logs were simply banked, and were not in the stream. Under the law of 1893, which is the same as that of 1889 and 1891, when forest products are on the banks or shores of any lake, pond, or stream, and not at the place of manufacture, the destination is at the sorting grounds, unless the owners make the contrary to appear. The contrary is conclusively shown in this case. The case of Maurer v. Cliff, 94 Mich. 194, does not apply, because the products there involved were within a provision of the statute of 1891 identical with the proviso of section 15 of the act of 1893 above quoted. The case is within the rule laid down in Brooks v. Township of Arenac, 71 Mich. 231; Pardee v. Township of Freesoil, 74 Mich. 81; Corning v. Township of Masonville, Id. 177.

The judgments will be reversed, and judgments entered here for the plaintiff, with the costs of both courts.

The other Justices concurred.


author: Hooker, J.

text:
    TOWNSHIP OF HARRISON v. BOARD OF SUPERVISORS OF SCHOOLCRAFT COUNTY.
    Statutes — Special and General — Boards of Supervisors — Township Boundaries.
    Where, by special act of the legislature, territory is detached from one township and attached to another, such townships are thereby excluded from the operation of the general statute (1 How. Stat. § 486 ) authorizing the board of supervisors to alter township boundaries, and action afterwards taken by the board thereunder, with reference to such townships, is invalid.
    Error to Schoolcraft; Steere, J.
    Submitted April 6, 1898.
    Decided May 24, 1898.

      Certiorari by the township of Harrison, by Burton A. Craver, supervisor, to review the proceedings of the board of supervisors of Schoolcraft county in detaching territory from the township of Harrison and attaching it to the township of Inwood. The circuit court dismissed the writ, and plaintiff brings error.
    Reversed.

      C. W. Dunton and E. C. Chapin, for appellant.

      Peters & Brown and George E. Pardee, for appellee.
   Hooker, J.

The boundaries of the townships of In-wood and Harrison, in the county of Schoolcraft, were fixed by the legislature by an act which took effect March 18, 1893, the only purpose of which was to detach certain territory from the township of Inwood, and attach the same to the township of Harrison. On November 8,189?, a petition, signed by the requisite number of freeholders of the two townships as then constituted, was presented to the board of supervisors of the county, praying that certain territory be detached from the township of Harrison, and attached to the township of Inwood. Notice, proof of posting, publication, and the residence of the petitioners were shown. On December 15, 1897, the prayer of the petitioners was granted at a special meeting of the board. On December 21, 1897, the supervisor of the township of Harrison removed the proceedings to the circuit court by certiorari, where the writ was dismissed upon the hearing, and it has come to this court by writ of error.

1 How. Stat. § 486, provides that “the board of supervisors * * . * shall have power * * * to divide or alter in its bounds any township, or erect a new township,” and points out the steps necessary for the accomplishment of such purpose; and this section was in force, substantially in its present form, prior to the compilation of 1857. This section was in force in 1893, ivhen Act No. 291, already mentioned, was enacted by the legislature. Two years later section 486 was amended. See Pub. Acts 1895, Act No. 254. But this amendment related only to the matter of indebtedness, and cannot affect the question before us. Were it a new act, giving new powers to the supervisors, the presumption would be that the legislature did not intend to include the territory affected by the previous special legislation, unless there could be found in the general legislation evidence of such intention. See End. Interp. Stat. § 223; Regents of University v. Auditor General, 109 Mich. 134. See, also, a discussion of this question, and authorities collected, in City of Lansing v. Board of State Auditors, 111 Mich. 327 334.

It would seem manifest that if a special act is to be considered so clearly expressive of a legislative intent to deal with a particular locality as to exclude such locality from 'the operation of a general statute of later date, when an opposite intention is not clearly apparent from the latter, a special act should have effect over subsequent action by an inferior power, exercising only delegated authority under a prior law. If this is a correct rule of construction, the special act would stand, as applied to these townships, as against a general act of the legislature itself, providing for a change of boundaries by a board of supervisors; and, if so, there would he little justification for saying that it would not as against action by the supervisors acting under an earlier one. The legislature has formally and solemnly decided upon the boundaries of these particular townships, notwithstanding the existence at the time of a law permitting the board of supervisors to deal with the matter. Shall we assume that the legislature went out of the usual course to fix the boundaries of these townships, with the expectation that its work would be undone in the immediate future by a local board of its own creation, which might have been called upon to act, instead of the legislature, in the first instance ? Should we not rather conclude that for some purpose it was deemed expedient to place the boundaries of these townships beyond change until the legislature should itself see fit to make a change ? Action of this kind was taken in relation to the highway law (see Woodmere Cemetery v. Roulo, 104 Mich. 595), from which it appears that the legislature sometimes intervenes for the protection of particular localities; and, when it does, it should not be lightly inferred that such interference has no purpose, or that it is merely temporary. In the present case it is urged that the legislature intended to fix these boundaries, but subject to subsequent local control. If this is so, the boundaries of the townships might have been changed by the supervisors within four weeks of the time when the special act took effect as lawfully as though they had waited four years. It is not reasonable to suppose that such was the intention, and, as said by Mr. Justice Graves in School District No. 13 v. Dean, 17 Mich. 231:

“The district [here township] in question was created by direct legislation; and a continuing, independent power to dissolve it, vested in another body, would be anomalous. It would suppose two powers in operation at the same time, one of which would have the right to create, and the other, at the same instant, the right, to destroy, while one of these conflicting authorities could only exist by the sufferance of the other.”

It may be admitted that the present case is distinguishable from that upon the facts; but in neither does it appear that the legislature intended to subject the township or school district created by itself to the jurisdiction of the board of supervisors or school inspectors. The presumption is that it did not.

The order of the circuit court is reversed.

The other Justices concurred.


text:
    MAXSON v. MICHIGAN CENTRAL RAILROAD CO.
    1. Contracts by Agent — Subsequent Declarations — Admissibility.
    The representations or declarations of an agent with respect to a contract alleged to have been made by him three years before are inadmissible to bind the principal.
    2. Same — Railroad Companies — Division Superintendent — Implied Authority — Agreement por Lire Employment.
    A division superintendent of a railroad has no implied authority to bind th e company by an agreement to give life employment to an employé of the company in settlement of a claim for personal injuries.
    3. Same — Ratification—Evidence.
    That an injured railroad employé is subsequently hired by the company’s agent to perform services which he is capable of rendering is not evidence to show a ratification by the company of an alleged contract by such agent to continue him permanently in its employ.

    Error to Wayne; Frazer, J.
    Submitted April 7, 1898.
    Decided May 24, 1898.

      Assumpsit by Daniel C. Maxson against the Michigan Central Railroad Company for the breach of an alleged contract to continue plaintiff permanently in its employ. From a judgment for plaintiff, defendant brings error.
    Reversed.
    In 1887 plaintiff was in the employ of the defendant in its yards at Jackson, Mich., and while coupling cars lost his arm. He was employed by one J. D. Clark, an assistant train-master. After recovering from the accident, he was re-employed by the defendant, at first tending switches, and subsequently tending the gates. He continued in this employment until April 16, 1894, when he was discharged on the ground of inattention to his duty. He then brought this suit, based upon a parol contract with the defendant, by which it is claimed the defendant agreed that, if he would refrain from prosecuting it for any claim for damages on account of the injury, it would furnish him a job during the period of his natural life, as long as he did his work well, at such wages as were paid to others in this same employ. It is claimed that the contract was made with one Charles B. Bush, the division superintendent at Jackson, who died before this suit was brought. Following is the testimony on which the contract is based:
    One George C. Stearns testified that he was at plaintiff’s house soon after the accident, and heard a conversation between plaintiff and Bush, which he states as follows:

      “Q. You may state the conversation that was had between Maxson and Bush in your presence on that occasion.
    4 lA. Mr. Bush said that he ought to have a permanent job with the company. In the whole conversation Mr. Maxson spoke of the promise that Kassner had made, and told him that Mr. Kassner had promised him a permanent position on the road if he would waive all rights to recover, or words to that effect; and Mr. Bush said that he ought to have a situation with the company.

      “Q. When did he say that he should have it?

      “A. As soon as he was able to work and perform his duties.

      “Q. What was said about Mr. Maxson waiving any claim for damages ?
    “1. Mr. Bush said, if he would waive his claim, and not bring any suit against the company, they would give him a permanent job.”
    On cross-examination he testified as follows:

      “Q. Tell us exactly what that conversation was again.
    ‘ ‘A. They mentioned what Mr. Kassner had told him—

      “Q. Who said that?

      “A. I think Maxson.

      “Q. What did Maxson say to Bush?

      “A. He said that Mr. Kassner had made him a promise of a permanent job.

      “Q. Did he say anything else ?

      “A. Yes, he said he made a promise of permanent job if he would not sue the company; that is, if he would accept work, and not commence any lawsuit.

      “Q. Just what did he say about the lawsuit part of it? Give us his words.

      “A. That is what Mr. Maxson’s words were, that Mr. Kassner had made him that promise.

      “Q. Had made him a promise for what?

      “A. If he would waive his rights.

      “Q. If he would waive his rights against the railroad company, — is that it ?

      “A. Yes, sir.

      “Q. Is that the language that he used?

      “A. Words to that effect, — if he would not commence any suit, that they would hire him, and take care of him, and give him a permanent job.
    “ Q. He said if he would not commence suit they would give him a permanent job?

      “A. If he would not commence a suit; yes, sir.

      “Q. What did Mr. Bush say to that?

      “A. Mr. Bush said he should have work with him, — he said he should have a permanent job.
    “Q. What did he say, — ‘All right,’ or what?

      “A. He said, ‘All right,’ he should have a permanent job.

      “Q. Mr. Bush nodded his head, and said, ‘All right,’— is that right ?

      “A. Yes, he said he should have a permanent job.
    “ Q. Did anything else take place on that subject; beyond what you have stated ?

      “A. No, sir; nothing beyond what I have stated.”

      Mrs. Maxson, the wife of plaintiff, testified as follows:
    “Mr. Bush came into the room, and was there quite a long time. When he got up to go away, something was said about what we were going to do. I spoke up, and said that I didn’t know what we were going to do. He says: ‘ It does not make any difference. Just as soon as Mr. Maxson is able to go to work, we will give him a permanent job, — a life job.’ I took from that a permanent job. He said just as soon as he was able to go to work.
    “ Q. What, if anything, was said about commencing suit?

      “A. He said, of course he should commence no suit; if he should waive the examination, and not commence a suit against the company, he would give him a job. He said he would get the same pay as other men did at whatever work they set him at.”
    On cross-examination she testified:
    “When Mr. Bush started to go, I spoke up, and said I didn’t know what we were going to do, and he said, ‘ Mr. Maxson will have work as soon as he is able to work, and we will give him a permanent job.’
    ‘ ‘ Q. That was the language which he used ?

      “A. That was the language, — similar to that.

      “Q. That as soon as Mr. Maxson was able to work he would give him a permanent job, — is that what he said?

      “A. It may not be exactly like that, word for word.
    “Q. But substantially that ?

      “A. I think that is what it amounted to.
    “Q. What else?

      “A. He said he would waive examination, — waive all rights to the company. He says, ‘If Mr. Maxson will waive all rights to the company, we will give him a permanent job, — if he won’t sue the company.’
    “Q. Did he use the term, ‘waive rights?’

      “A. I do not know whether he did, but it was similar to that, — if he would not bring suit.
    “Q. Didn’t you get the expression ‘waive rights’ from talking with your attorney ?

      “A. No, sir.

      “Q. Did Mr. Bush use the words ‘waive rights against the company?’

      “A. I don’t know whether he did.

      “Q. Then you cannot tell exactly what he said about this question of his claim against the company ?

      “A. He said if he would make the company no trouble, — would not sue the company, — he would give him a permanent job.

      “Q. If he would not sue the company, or make the company any trouble ?

      “A. Something of that kind.

      “Q. That was all that was said by him?

      “A. I think it was. I don’t remember anything else.”
    One Alfred S. Wells testified, under objection and exception, to the following conversation with Mr. Bush in 1890:
    “I was night yard-master at Jackson at the time I had this conversation with Mr. Bush. I reported Mr. Maxson to Mr. Bush for failing to handle the switch as I thought he ought to, and Mr. Bush told me it was strange that I could not get along with Maxson. He says: ‘ I think if you will do what is right with Maxson, Maxson will do -what is right with you. In any event, we have given Mr. Maxson a permanent position while he lives.’ I felt a little chagrined over that, and I said, ‘ Do I understand you have given him a life job ? ’ and he said, ‘Yes.’”
    Plaintiff recovered verdict and judgment.
    Three errors are assigned:
    (1) In admitting the testimony of the witness Wells.
    (2) In submitting to the jury the question whether Bush had the authority to make the contract.
    (3) That there was no evidence tending to show that there was a valid contract.

      Russel & Campbell, for appellant.

      Lehman Bros. (Navin & Sheehan, of counsel), for appellee.

       Contracts for permanent employment and similar agreements is the subject of a note to Carnig v. Carr, (Mass.) 35 L. R. A. 512.

   Grant, C. J.

(after stating the facts). It was error to admit the testimony of the witness Wells. Contracts cannot be established by statements of an agent made years afterwards. Such statements do not bind the principal. If Bush had been living, and a witness for the defendant, this testimony, upon laying the proper foundation, wquld have been admissible as impeaching. “The admission or declaration of an agent binds his principal only when it is made during the continuance of the agency, in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act, and part of the res gestae, that it is admissible at all.” 1 Greenl. Ev. § 113. “The representation, declaration, or admission of the agent does not bind the principal if it is not made at the very time of the contract.” Story, Ag. § 135; Haven v. Brown, 7 Me. 421 (22 Am. Dec. 208); 1 Am. & Eng. Enc. Law (2d Ed.), 1143.

This was an unusual contract, and not such as individuals or corporations are in the habit of making. A division superintendent of a railroad is not a general agent who is, by virtue of his agency, authorized to perform every act, or make every contract, which his principal might do. To settle claims and make life contracts is not within the ordinary power of such an agent. It was, therefore, incumbent upon the plaintiff to show either original authority to make the contract or ratification by the company. Plaintiff showed no original authority in Bush either to settle a claim for damages or to employ the plaintiff for life. Certainly a division superintendent, who is subject to the supervision of the general superintendent, and of the president and directors of the company, is not clothed, by virtue of his agency, with any greater authority than is the cashier of a bank or other corporation. In Delta Lumber Co. v. Williams, 73 Mich. 86, it was held that “compromising claims, settling unliquidated damages, and releasing debts due to the corporation, are acts which do not come within the ordinary duties of a cashier. ” In making such an extraordinary contract, plaintiff knew that he was dealing with a subordinate agent of the company, and was hound to inquire into and ascertain his authority, not from the agent with whom he dealt, but from the principal with which he was dealing. In Brighton v. Railway Co., 103 Mich. 420, plaintiff’s claim was based upon a written contract for the payment of money in settlement of his damages, and for permanent employment. Money could not well have been paid from the treasury of the company without the authority of the company itself. There was, therefore, evidence both of original authority and of ratification, and in a conflict of evidence the question was properly submitted to the jury. In this case there was no money to be paid, and nothing to indicate that the company was informed that plaintiff was employed in any other than the ordinary manner. The evidence on the part of the defendant showed that Bush had no authority to settle claims, or to employ men for life. Plaintiff introduced no evidence to the contrary. It was, therefore, error to submit the question of authority or of ratification to the jury. Randall v. Railway Co., 113 Mich. 115 (38 L. R. A. 666); Hartigan v. Railroad Co., 113 Mich. 122. If plaintiff relied upon ratification, it was his duty to establish the fact that defendant had knowledge of the alleged contract with Bush, and acted upon it. 1 Am. & Eng. Enc. Law (2d Ed.), 1189. The record is barren of any evidence to prove' such knowdedge. The mere fact that plaintiff was employed for the company to perform services which he was capable of rendering is not evidence either to sustain the alleged contract or of ratification.

It is unnecessary to discuss the other question raised. Under this record the court should have directed a verdict for the defendant.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    CITIZENS’ SAVINGS BANK v. KOCK.
    1. Mortgages — Future Advances.
    A mortgage to cover future advances is valid.
    2. Same — Consideration—Limit of Security.
    The consideration named in a mortgage does not limit the amount for which it may stand as security, if, from the whole instrument, the intent to secure future indebtedness is apparent.
    3. Same — Intent—Construction—Evidence.
    And where the plain terms of the instrument evidence such an intent, they will control, as against a contention of the mortgagor that it was the understanding of the parties that the mortgage was security only for the consideration named.
    Appeal from Wayne; McMahon, J., presiding.
    Submitted April 21, 1898.
    Decided May 24, 1898.
    Bill by the Citizens’ Savings Bank against Jacob Kock and Wilhelmina Kock to foreclose certain' mortgages. From a decree for complainant, defendants appeal.
    Affirmed.

      Barbour & Rexford, for complainant.

      Thomas Hislop, for defendants.
   Montgomery, J.

This is an appeal from a decree of foreclosure. The bill of complaint was filed to foreclose three mortgages, each executed by the 'defendants upon stated consideration; respectively, 17,000, $3,000, and $2,500. The consideration clause reads substantially the same in each, and is as follows:

“ Witnesseth, that the said mortgagors, in consideration of the sum of seven thousand dollars, the receipt whereof is acknowledged, and for the purpose of securing the repayment of the said sum, with interest, as hereinafter provided, and the performance of the covenants hereinafter contained, hereby mortgage,” etc.

This is followed by a covenant to pay to the mortgagee, its successors and assigns, th£ said sum of $7,000 on or before one year from date. A later provision is as follows:

“Said mortgagors agree to pay said mortgagee any sum of money which he may now or hereafter owe said mortgagee by reason of any note, check, draft, or other paper upon which his name shall appear, either as maker or otherwise; and dais mortgage and its accompanying note, until disclaarged, is to be a continuing security for payment of any. sucia sum or sums.”

The circuit judge found that there was due the complainant $21,522.77. Defendants have appealed, and contend in this court that the consideration should be limited to the amount named in each mortgage as the consideratioia.

It is settled that a mortgage to cover future advances is valid. Michigan Insurance Co. v. Brown, 11 Mich. 265; 1 Jones, Mortg. § 373.

The amount named as consideration of the mortgage does not limit the amount for which the mortgage may stand as security, if, from the whole instrument, the intent to secure future indebtedness is to be gathered. Keyes v. Bump’s Adm’r, 59 Vt. 391.

The claim was made by defendant Wilhelmina Kock that she was deceived as to ihe contents of the mortgage. The learned circuit judge decided that the presumption arising from the execution of the mortgage had not been overcome by the proof offered by the defendants. We are satisfied upon examination of the record that no misrepresentation was made to the defendants, and that, on the contrary, Mrs. Kock was informed that the instrument was intended to secure all paper indorsed by Mr. Kock.

It is contended, further, that the parties undei’stood that the mortgages were security only for the amount named in each. The terms of the' mortgage must control this question.

The deca’ee will be affirmed, with costs.

The other Justices concurred.