text:
    MACOMBER v. ENDION GRAPE JUICE CO.
    1. Partnership Associations — Corporations — Stockholders’ Suits — -Rescission—Fraud in Issuance oe Stook — Actions.
    An action at law lies against a limited partnership association in favor of a plaintiff who bought treasury stock of the company under fraudulent representations, and who rescinded the transaction, tendering back the stock issued.
    2. Same — Judgments Against — Conclusiveness as to Stockholders.
    A judgment in such action is binding on the stockholders in proceedings to enforce their liability for assessable stock unless it is obtained by fraud or collusion, or is void or excessive.
    3. Same — Stock—Property Received in Payment — Description . —Statutes.
    It is insufficient to describe property transferred in payment for capital stock to a copartnership association, limited, by a general statement in the articles of association that it is all the property of certain named kinds, belonging to a corporation, in complying with 2 Comp. Laws, § 6079.
    4 Same — Stockholders’ Liability.
    A stockholder who subscribed for 2,998 shares of stock in the association and paid for them in such property and turned back into the treasury all but 300 shares without consideration, under an oral arrangement not filed with the register of deeds in accordance with the statute, cannot be treated as the holder of paid-up stock.
    5. Same — Purchasers in Good Faith — Stock and Stockholders.
    The purchaser of stock from one of the original incorporators, buying in good faith in reliance on the records filed, is not liable for the difference between the amount of his purchase price and the par of the stock.
    6. Same — Organization—Records—Statutes.
    The record filed with the register of deeds under 2 Comp. Laws, § 6079, cannot be varied by parol contemporaneous agreements of the associates.

      Error to Berrien; Coolidge, J.
    Submitted November 8, 1909.
    (Docket No. 176.)
    Decided March 5, 1910.
    Statutory proceedings by Theodora Macomber against the Endion Grape Juice Company, Limited, George M. Thresher, Thomas L. Wilkinson, and B. II. Spencer to enforce the individual liability of defendants in defendant corporation. A judgment for defendants is reviewed by petitioner on writ of error.
    Affirmed as to defendant Spencer, and reversed as to defendants Thresher and Wilkinson.

      Cady & Andrews, for appellant.

      Lawrence C. IPyfe, for appellees Thresher and Wilkinson.

      Core & Harvey, for appellee Spencer.
   Blair, J.

On April 27, 1903, the Endion Grape Juice Company, a corporation capitalized at $15,000, in which the respondents Thresher and Wilkinson and Joseph H. Johnston and others were stockholders, transferred all of its property, consisting of formulas, machinery, grape juice, etc., for an expressed consideration of $100, to Johnston and Thresher, for the purpose of reorganizing and continuing the business theretofore carried on by the corporation under the form of a partnership association organized at the same time under the provisions of chapter 160 of the Compiled Laws; the name thereof being Endion Grape Juice Company, Limited. The total amount of the capital as fixed by the statutory statement was $60,000, divided into 6,000 shares. The amount of capital subscribed for by the shareholders, according to said statement, was as follows: Joseph W. Johnston, Benton Harbor, Mich., $29,980, being 2,998 shares; George M. Thresher, Benton Harbor, Mich., $29,980, being 2,998 shares; Thomas L. Wilkinson, St. Joseph, Mich., $10, being 1 share; John H. Lee, Benton Harbor, Mich., $10, being 1 share; Arthur B. Lee, Benton Harbor, Mich., $10, being 1 share; Lydia J. Lee, Benton Harbor, Mich., $10, being 1 share.

Article 7 of the statement is as follows:

‘ ‘ The following schedule contains the names of the parties contributing property as part of the capital of said association with a description and valuation of the property so contributed, which valuation has been and is hereby approved by all members subscribing to the capital of said association. Each of the parties hereto associating has contributed his undivided interest in and to all the manufactured grape juice and cider of said parties, and also all bottles, packages, and other material owned by them and used in connection with such business. And also in and to the processes and formulae for the making of what is known as Lee’s Endion Grape Juice and also for making Endion Cider. The valuation of the interest of each party hereto associating in and to such property and processes is hereby fixed at the amount of capital subscribed by each respectively, and it is agreed that the above amount of capital stock subscribed by each party hereto associating is hereby paid in full by the interest of such person in and to the said manufactured product of grape juice and cider and other property, and also of the said processes. And the above valuation of the property interest hereby contributed by each party hereto associating as above set forth is approved by all of the parties hereto, and it is agreed by all the parties hereto that the above capital stock subscribed by each shall be issued to the respective persons fully paid and nonassessable in payment of the interest of the person in and to such property and processes.”

The formal transfer of the property to Johnston and Thresher, and the issue to them of 2,998 shares each, and then the retransfer of that property to the association, was a mere formality and was intended merely as a convenience and to get the title out of the old company and to enable the stock to be issued to individuals. At the same instant that this stock, 2,998 shares, was issued to Mr. Thresher, and 2,998 shares were issued to Mr. Johnston, it was turned back into the association. It was never intended really they should own it. It was done to make every share fully paid up. Then there were issued shares of stock as follows:

John H. Lee 499 (and 1 already issued)..........500 shares
Arthur B. Lee 499 (and 1 already issued) ........500 “
Lydia J. Lee 149 (and 1 already issued).........150
Robert P. Lee__________________________-.......500 “
Joseph W. Johnston.............. -.500 “
George M. Thresher....................... 300
T. L. Wilkinson 149 (and 1 already issued)......150 “

—leaving 3,600 shares unissued. Each of the stockholders surrendered his shares in the old company and so contributed all his interest in all the manufactured grape juice and cider and in all bottles, packages, machinery, and other articles, business good will, and the formulas for grape juice and cider of the old company.

July 21, 1903, the defendant issued to plaintiff a certificate for 50 shares “fully paid and nonassessable,” for which her father paid $375 in cash. In November, 1904, the association having become bankrupt, plaintiff commenced suit by declaration against it. The declaration contained the common counts and a special count in assumpsit. Under the common counts plaintiff sought to recover as assignee for the value of certain corks, etc., amounting to $190, purchased by defendant. Under the special count she sought to recover the amount paid for her stock, alleging that she was induced to purchase the same by false representations, and that upon learning the falsity thereof she had tendered back the stock and demanded her money, which was refused. Plaintiff recovered judgment for the amount of the two items and interest, from which no appeal has been taken. It appears that an application for a new trial was made, which the court announced that he would grant in case defendant would pay the $190 which it conceded that it owed. An execution was issued against the goods and chattels of the defendant and returned unsatisfied. Plaintiff then filed her petition in the circuit court to enforce the individual liability of respondents as stockholders of defendant, in pursuance of the provisions of section 8554 et seq., 3 Comp. Laws. The case was tried by the court, and findings of fact and of law were filed, resulting in a judgment for respondents, which petitioner has removed to this court by writ of error.

Without attempting to review the numerous assignments of error or to pursue the order of argument adopted in the briefs of counsel, we shall discuss the propositions which, in our opinion, are decisive of the case.

First. The law court had jurisdiction of plaintiff’s suit to recover back her money upon her rescission of the purchase and tendering back the stock. 1 Cook on Corporations (6th Ed.), § 159; Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209); Hamilton v. Hulled Bean Co., 143 Mich. 277 (106 N. W. 731); Fidelity Mut. Life Ins. Co. v. Blain, 144 Mich. 218 (107 N. W. 877). Plaintiff did not proceed against defendant as a stockholder, but as one whose money having been obtained by false representations was entitled to renounce her character as stockholder, restore the status quo, and recover back her money. Her judgment determined her right to rescind the purchase of the stock, rendered the transaction void ab initio, and relieved her from all the obligations and relations of a stockholder. Such being the status of plaintiff, decisions to the effect that stockholders must pursue their. remedy in courts of equity are not applicable. Plaintiff’s judgment clothed her with the character of an ordinary judgment creditor; there was neither fraud nor collusion in obtaining it; the court had jurisdiction of the case; it was neither void nor excessive; and it was, therefore, binding upon the stockholders. McBryan v. Elevator Co., 130 Mich. 111 (89 N. W. 683, 97 Am. St. Rep. 453); Gund v. Ballard, 73 Neb. 547 (103 N. W. 309).

Section 6079, chap. 160, 2 Comp. Laws, under which the defendant association was organized, required:

“Where property has been contributed as part of the capital, a schedule containing the names of the parties so contributing, with a description and valuation of the property so contributed, shall be inserted in such statement.”

We think it was the intention of the legislature, in providing for a schedule containing a description of the property contributed, to require as specific a description of such property as its nature would admit of. While the statute permits the property to be estimated at a valuation to be approved by all the members subscribing, at least, where they act in good faith, there is no such provision relative to the description of the property contributed. We are of the opinion that the description of the property was not in compliance with the statute. Maloney v. Bruce, 94 Pa. 249.

Conceding that the valuation cf the property was in good faith and not in violation of the statute, it nevertheless appears that the respondents Thresher and Wilkinson did not pay for the shares of stock subscribed for and issued to them. According to article 1, George M. Thresher subscribed for 2,998 shares, and Thomas L. Wilkinson subscribed for 1 share, according to the schedule:

“ The valuation of the interest of each party hereby associating in and to such property and processes is hereby fixed at the amount of capital subscribed by each respectively, and it is agreed that the above amount of capital stock subscribed by each party hereto associating is hereby paid in full by the interest of such person,” etc.

The written statement required to be filed in the office of the register of deeds and constituting notice to all persons thereafter dealing with the .corporation must speak for itself, and, manifestly, cannot be varied by a secret parol agreement between the original associates.

Mr. Thresher testified:

“Q. Where is the balance of the $60,000 ?
lA. The good will and the formula.
“Q. Then you estimated the formula at #45,000?
“A. About that.
“Q. That is the same formula you purchased from the old company for $100 ?
“A. That $100 was a mere figure. We all turned in our stock. It didn’t matter whether we put $100 or $20,000; it was a figure to represent all the stock of the old company, and it was to be turned in and canceled, and we were to issue new certificates in place of it.
“Q. You turned back your 2,998 shares ?
"A. Yes, sir.
“Q. And received in return 300 ?
“A. Yes, sir.
“Q. Was there any consideration passed from the company to you for the difference between the 300 and 2,998 ?
“A. No.
“ Q. You voluntarily surrendered them ?
“A. Yes, sir.
UQ. Did you have an agreement between yourselves and the other incorporators of this company as to the return of the excess of 300 shares of stock, between 300 and 2,998?
“A. It was understood what each was to receive. I never owned the stock an instant.
UQ. The 2,998 you never owned ?
“A. It was issued to me, but the same instant it was indorsed back to the company.
“ Q. It was never intended you should own it ?
“A. No.”

It is apparent that Mr. Thresher had not in reality subscribed $29,980 of the capital stock and was not entitled to 2,998 shares thereof, but actually was only entitled to 300 shares; while Mr. Wilkinson, who had only subscribed for 1 share, was given 149 more for which he paid nothing, in addition to his property interest described in the schedule. It is plain that the schedule does not in fact contain a statement of the property contributed by the original associates as stated in the schedule, but only as stated in the contemporaneous oral agreement. The statutory conditions not having been complied with, the contributions of property cannot be treated as payments of capital stock.

As to the respondent Spencer, the court made the following finding of fact:

“I find that the defendant Spencer did not become a subscriber to the capital stock of the new company till after the organization of the new company, and that he paid $500 for 100 shares of the treasury stock sold to him.”

No. 1 of the court’s findings of law is as follows:

“ I find that the said Spencer purchased treasury stock of the company in the same manner in which the plaintiff purchased hers, and therefore is not liable to the plaintiff under this proceeding; he not being a subscriber to the original capital stock, but a purchaser for values.”

The plaintiff purchased her stock for 75 cents on the dollar, while Mr. Spencer purchased his for 50 cents on the dollar. As appears by the statutory statement, John H. Lee was selected as manager and chairman, and the records of the association did not disclose that any new chairman had been regularly elected in his place at any meeting of the stockholders or managers. His name appears to have been signed on plaintiff’s certificate of stock as chairman, but whether such signature was authorized by him does not appear. A circular was introduced in ovidence, bearing his name, which Mr. Thresher testified was submitted to him, and there can be little doubt that he was acting as chairman, though perhaps not regularly elected to that position. It does not appear, however, that he had any greater knowledge of the facts concerning the value of the property than the plaintiff herself, nor that he did not have the same grounds as she had for believing that the property had been fully paid for, since none of the facts as to the oral arrangement appeared of record. As the court said in McBryan v. Elevator Co., 130 Mich. 111 (89 N. W. 683, 97 Am. St. Rep. 453):

“ The wrong was done by the original incorporators in making a false statement as to the amount of stock actually paid in. The public, and creditors dealing with the corporation, had the right to rely upon this statement as true. Subsequent purchasers of stock were also entitled to rely upon it as true. It would be unjust to visit the sins of the original incorporators upon subsequent stockholders who purchased in good faith.”

The judgment is affirmed as to the respondent Spencer, and reversed as to the respondents Thresher and Wilkinson, and judgment is directed in favor of plaintiff in accordance with this opinion.

Montgomery, O. J., and Ostrander, Hooker, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    ROOKS v. BOOTH.
    1. Statute op Frauds — Contracts to be Performed Within One Year — Lease—Landlord and Tenant.
    An unwritten agreement to extend the time for a year under a lease which would otherwise expire in less than a month, is not within the statute of frauds.
    2. Judgment — Res Judicata — Questions Concluded.
    The doctrine of res judicata cannot be applied to a judgment of the circuit court commissioner which may have been based upon any one of three findings of facts not shown by the record.
    3. Damages — Lost Profits — Evidence.
    Damages for lost profits are recoverable by a tenant who has been compelled to move in violation of an agreement to renew his lease, and may be estimated from evidence of his profits before and after the removal.

    4. Same — Rental Value — Evidence.
    It is incompetent to show the rent payable by a subsequent tenant whose lease provided that he should construct a building on the premises and pay the taxes assessed against the realty.
    Error to Wayne; Murfin, J.
    Submitted November 10, 1909.
    (Docket No. 74.)
    Decided March 5, 1910.

      Assumpsit by Horace W. Rooks against Minnie C. Booth for breach of a contract of leasing. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Galloway & Graham (James H. Pound, of counsel), for appellant.

      Henry C. L. Forler, for appellee.

       As to loss of profits as element of damages for breach of contract, see note to Wells v. National Life Ass’n of Hartford (Fed.), 53 L. R. A. 97; also Pittsburg Coal Co. v. Northy, 158 Mich. 530.

   Blair, J.

As stated in the record:

“This is an action in assumpsit, brought by plaintiff for the breach of an alleged oral agreement to extend a subsisting written lease existing between the parties for one year.”

Plaintiff’s proofs tended to show that the oral agreement was made in August, 1907, to extend the term of his written lease, which expired September 1, 1907, upon the same conditions and agreements as therein contained, including the rent of $600 per annum. Defendant denied the making of the oral agreement as claimed. The undisputed evidence shows that on May 14, 1907, defendant entered into a written lease with William W. Blessed—

“For his occupation of premises 395 Woodward Ave. for * twenty years from and after the first day of September, 1907.’ Such occupation of the lessee to be the entire first floor and main part of basement, for his grocery business, in a building covering the entire premises to be constructed by the lessor, at the rental of $2,500 per year.”

Having agreed to modify the terms of this lease, the parties entered into another lease in writing on August 30, 1907, for the same term, at the rental of $1,200 per year, and all taxes to be assessed against the premises during said term; the lessee to construct the building for his said business. The defendant’s proofs tended to show that an arrangement was made between Mr. Blessed and Mr. Rooks that Rooks “would occupy the premises at the same rent that he had paid to Miss Booth for one month only.” Plaintiff denied that any such arrangement was made. Plaintiff refusing to surrender possession, Mr. Blessed instituted summary proceedings before a circuit court commissioner to get possession, and obtained judgment of restitution, from which no appeal was taken. Plaintiff appeared, and made a defense.

“Q. Did you make any claim then that you had a right in the premises from Miss Booth ?
“A. Certainly I did. I made that claim all the time. I told all the time that she told me I was going to stay there.
“Q. I ask you if you made that the basis of your defense ?
“A. Certainly I did; that is the only claim I had.”

Plaintiff, against defendant’s objection, was permitted to show the profits of his business before and after he was compelled to move. Plaintiff was also permitted to show by Mr. Blessed—

“That under his lease with Miss Booth he paid $100 .per month for the lot, and paid all the taxes; that his lease started from August 30, 1907, and he paid the taxes that fall.
“Q. Have you the tax receipt ?
“A. I think I have.
“Q. What is the tax rate for the year ?
“Mr. Galloway: I think that is immaterial, about the taxes. I don’t see that that cuts any figure here.
The Court: What is the purpose of it ?
“Mr. Forler: To find out the actual rent Mr. Blessed is paying for this property.
The Court: What difference does it make how much rent Blessed is paying.
“'Mr. Forler: To determine the rental value of the property; that is one of the elements that should be considered.
The Court: I think that is true.
“Mr. Forler: It is easy to figure out the profits we rely on from the rental value.
The Court: I think that is so. I will take the answer on that. Defendant excepts.”

Plaintiff secured a verdict, and recovered judgment for $1,085.75, and defendant brings the record to this court for review on writ of error.

The defendant contends that:

1. The oral agreement was within the statute of frauds.

This point is not well founded. Whiting v. Ohlert, 52 Mich. 462 (18 N. W. 219, 50 Am. Rep. 265); Waldo v. Jacobs, 152 Mich. 425 (116 N. W. 371).

2. The judgment of the circuit court commissioner is res adjudicata.

We cannot say from this record whether that judgment was founded upon the grounds: '(a) That plaintiff made an arrangement with Blessed to surrender possession after one month; (b) or that defendant made the agreement as claimed by plaintiff, but it was ineffective because of the superior right of Blessed; (c) or that defendant did not make the oral agreement with plaintiff. We cannot therefore apply the doctrine of res adjudicata.

3. The court erred in admitting evidence of loss of profits, and of the rental value of the property under the Blessed lease.

We think the rule relative to an interrupted business applies in this case, and that loss of profits may be shown. Taylor v. Cooper, 104 Mich. 72 (62 N. W. 157); Jarrait v. Peters, 145 Mich. 29 (108 N. W. 432). We are of the opinion, however, that the court erred in permitting the jury to consider the rental value as fixed by the Blessed lease. Mr. Blessed was to construct a new building, which would increase the value of the premises. The rent would naturally be fixed by an estimate, or an attempted estimate, of the mean value of the term, considering the fluctuations to which it would be liable during the term, including the increase or decrease in taxation, and would not afford a sufficiently definite basis for estimating the rental value of the premises with the old building thereon for the period of one year.

The judgment is reversed, and a new trial granted.

Montgomery, C. J., and Ostrander, Hooker, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE v. DROSTE.
    ■1. Criminal Law — Evidence—Homicide—Motive.
    That a respondent charged with homicide told a girl with whom he and deceased were friendly that if she knew what the deceased said about her she would never speak to him again, tends to show the relations among them and to disclose a possible motive for the crime.
    2. Same — Constitutional Law — Right to be Confronted with Witnesses.
    It is not error to admit a deposition in evidence against respondent where it was taken on the preliminary examination before the justice of the peace, counsel having availed himself of a full cross-examination, and the witness was subsequently taken seriously ill, so that she could not appear at the trial, at which the judge offered respondent the right to take her statement at her home.
    3. Same — Evidence—Impeachment.
    An impeached witness may explain away the effect of the supposed inconsistency by relating whatever circumstances would naturally remove it.

      4. Same — Trial—Striking Out Evidence.
    Improper testimony offered by a witness and struck out at once by the court on objection is not reversible error.
    5. Same — Murder and Manslaughter — Trial.
    The trial court properly refused to charge that the respondent must be found guilty of murder or was innocent, when the evidence supports the theory that the crime may have been committed in the heat of passion while respondent was under the influence of liquor, and constituted manslaughter.
    6. Same — Malice—Intent—Manslaughter.
    A charge that, in order to constitute manslaughter, the respondent’s “reason should, at the time of the act, be disturbed or obscured by passion or by an excitement of any cause to an extent which might render ordinary men of fair average disposition liable to act rashly or without due deliberation or reflection and from passion rather than from judgment,” is favorable to a respondent convicted of that charge. Maher v. People, 10 Mich. 212 (81 Am. Dec. 781).

      7. Same — Self-Defense—Instructions to Jury.
    A failure to leave to the jury the issue of self-defense is not error where respondent denied committing the crime and failed to request such a charge.
    Exceptions before judgment from Ionia; Davis, J.
    Submitted November 15, 1909.
    ( Docket No. 169.)
    Decided March 5, 1910.
    Joseph Droste was convicted of manslaughter.
    Affirmed.

      B. A. Hawley, for appellant.

      John E. Bird, Attorney General, and Dwight G. Sheldon, Prosecuting Attorney, for the people.
    Respondent was convicted of manslaughter, and brings his case here for review, upon exceptions before sentence. The record shows that respondent and deceased, Benno Cook, were both young men, respondent about 28, and Cook about 22, years of age; that they were bom and reared upon adjoining farms, about 2£ miles from the village of Pewamo, Clinton county, in this State. They had been friends and chums, visiting each other frequently and going about together for several years. The record further shows that respondent paid attentions to a young woman of the neighborhood, one Barbara Miller, and that, while Benno Cook had never “kept company ” with her, he was upon friendly terms with her, often visiting at her home. On the morning of May 16, 1908, respondent drove to the village of Lyons, where he attended an auction sale. He left Lyons between 6 and 7 in the evening, driving to the village of Pewamo, where he placed his horse under the Baptist church shed. He then returned to the business portion of the village, visiting the drug store and the two saloons, at both of which he drank. He had been drinking while at Lyons, and it is established beyond controversy that at the time the deceased received his death wound respondent was intoxicated. Witnesses do not agree as to the degree of intoxication, but all (including respondent himself), agree that he was under the influence of liquor, to some extent. He drank and played a game of cards with deceased in one of the saloons. There is evidence (denied by respondent) tending to show that, during the evening, a quarrel occurred between him and deceased, in the course of which respondent called deceased a damned liar. When Geller’s saloon closed, respondent and deceased, together with Droste’s brother, Cook’s brother, two of Cook’s cousins, and one Witzel, left together. The Baptist church is located one block south and one block west of Geller’s place. The young men started south in a body, and, when near the corner, respondent crossed to the west side of the street, and invited deceased to ride home with him, to which invitation deceased made no response. When it was repeated, deceased replied that he would walk with the boys. Being again invited by respondent, he followed him across the road, and the two proceeded west along Main street, to the Baptist church. Two of the remaining five boys followed to ascertain whether respondent really had a horse and buggy under the church shed. When near enough to distinguish a buggy under the shed, they returned to their companions at the corner, and all five started south towards home. Respondent and deceased were seen to enter the churchyard together, at which time deceased was in perfect health. When the boys had proceeded south nearly half a mile, they were arrested by loud talk and swearing, the sounds indicating an altercation, and coming from the direction of the Baptist church, in their rear. Thereupon they ran back towards the village, but had gone only about 40 rods, when they heard and saw a horse and buggy rapidly approaching them. When it came up, they recognized respondent and deceased as its occupants, and inquired of them if there was a fight up town. Respondent said, “No,” stopped his horse, and invited his brother, Eddie, to get in and ride, which he did. Shortly after, deceased complained of a pain in his abdomen. When the three reached the corner, where, if he went directly home, deceased would have to walk, he (deceased) said he wished he was home; respondent replied that, if he did not feel well, he would drive him home — a short distance. Upon arrival at the Cook home, deceased alighted from the buggy, and went up to the house, and respondent and his brother turned around and went home. The father of deceased, coming home some time later, heard groans, and, upon inquiry, deceased complained of pain in his abdomen. Hot cloths were applied outside his garments, and some simple remedy administered by the mother of deceased. Towards morning the pain continuing severe, the father examined deceased, and found a large quantity of his intestines protruding from a wound (evidently inflicted by a knife or other sharp instrument) in the abdomen. Medical aid was secured, and an operation was performed. The wound was enlarged, and the intestines returned to the abdominal cavity. Deceased was conscious both before and after the operation, but died about 4 o’clock in the afternoon of the day following the evening spent in Pewamo. He died without disclosing the circumstances of the assault or the name of his assailant although he was questioned as to both. Aside from the five boys already mentioned, not less than seven other persons, being located at distances varying from 300 feet to nearly 900 feet from the church shed, testified to hearing loud, angry, and profane talk in the church shed, or in that immediate vicinity, at the time respondent and deceased were there. Some of these witnesses were unable to distinguish the exact language used, but several testified that they heard distinctly the words, “ I will cut your damned heart out.” “I will cut you wide open.” Elizabeth Yost, who lived directly across the street from the church shed, being awakened by loud talk and profanity, testified that she heard some one say, “You get out of that buggy again, and I will rip you wide open.” She also saw the horse move from side to side, upon the crosswalk leading from the shed. On Saturday night respondent slept in the barn, and did not join his family either at breakfast or the noonday meal the next day. That afternoon he went over to the Cook farm, but not until after Benno Cook had died. He attended the funeral and sang in the choir, of which he was a member. His arrest followed shortly afterwards.
    On May 21st, five days after deceased received his death wound, respondent made, signed, and swore to a statement in presence of a justice of the peace, the prosecuting attorney, the sheriff and others. The statement was offered in evidence by the people, and was received without objection by respondent. It is as follows:
    “ Statement of Joseph Droste taken and made before me, Henry C. Clark, a justice of the peace, on the twenty-first day of May, 1908.
    “ My name is Joseph Droste. Am 28 years old. I live in Clinton county, Dallas township. I was in Pewamo on Saturday evening, May 16th, 1908. .
    “ I started away from my home about 10:30 a. m. that day and drove to Lyons to an auction sale. I had some beer to drink there at Lyons, and stayed there from the time I arrived there in the morning until in the afternoon about 6:30. I was at the auction sale held by a man by the name of Searing. I drove my horse up town and went into a saloon there, and had two glasses of beer there and went to the sale and stayed until I started away about 6:30.
    “ Nick Kraemer and Jacob Conan were with me. We got to Pewamo about 7:30; when I got to Pewamo I put my horse in the Baptist church shed. From there we went to Charles Frederick’s saloon. Nick Kraemer, Jacob Conan, and I, we three had one glass of beer there, and from there I went to the drug store. I went from the drug store to Willie Geller’s saloon.
    “ The first time I saw Benno Cook was there in front of Geller’s saloon. This was about 8 or 8:30 o’clock in the evening. Benno was there with the Cook boys. I went over at that time across the street and stood in front of the harness shop and Joe Miller’s restaurant. I did not see Benno for a long time.
    “I next saw him in Willie Geller’s saloon; we had a game of cards at that time. Ellis Cook and I played against Benno Cook and Willie Geller, the proprietor of the place. Benno and I took a cigar after the game. I went outside the saloon shortly after the game of cards was over.
    “ Ellis Cook said to me, ‘ Let’s go over to Charles Frederick’s saloon,’ and we both went over there but I did not drink anything there at that time. . From there I came out of the saloon and went up in front of Joe Miller’s restaurant and there I talked with Barbara Miller, Lizzie and Kate Miller. I must have talked with them about a half an hour. I went from there to Willie Geller’s saloon and Benno Cook was there in the saloon at that time. We sat there until we went home. We stayed in the saloon from that time until the saloon closed up. We went out of the doors together; I see the boys and we started home; I walked with the rest of the boys until we got up to Irish’s corner; when we got there I said, ‘ Come on, Benno, and ride with me.’ Benno says, ‘I don’t care, I can walk.’ I says, ‘ You might as well ride,’ and at that time Benno and I started up the street west towards the church shed.
    “ Edward Droste and Arthur Cook followed us up to pretty near the end of the fence. They were about right behind us. I did not see anyone around there; that is, around the church shed, at that time. If there had been any one there I would have seen them, because it was a very bright moonlight night. I don’t remember having any quarrel with Benno or with any one else that evening. I don’t remember of any one having a quarrel — I don’t remember of hearing any loud talking or swearing at the church shed or anywhere else that evening.
    “As near as I can remember, when I got to the church shed where my horse was I unfastened it and drove away. I think I was not there more than five minutes. I don’t remember having any trouble with Benno. If I did, I don’t remember it. I might have had, but I don’t remember if I did. I did not see anybody else there, and Benno did not have any trouble with any one else. If he had have had trouble with any one else I would have known it. As far as I can remember we all were the best of friends. I can’t remember of doing anything else only to get my horse and start for home.
    “When we overtook the boys near John Fox’s place, I asked my brother Ed if he would ride with us. Ed Cook asked us if we had seen any trouble or fight and we both said, ' No.’ He got into the buggy and we three went over there to the Cook home where Benno got out; Ed sitting on our knees and driving the horse.
    “ Benno commenced to complain about thirty rods west of the Louis Cook corners. He said he had an awful pain in his belly and that he at that time doubled up and lay across my knees. When we got to the corner where we turned south toward home, Benno said, * I wish I was home.’ When we got to the corners he went to get out, and I said to him, ‘ I will take you home if you don’t feel good.’ He was well pleased with that, and then I took him home. He got out of the buggy and said good night, and that was the last of it. This is all I can remember at present. I had been drinking that day considerable and was under the influence of drink to quite an extent, and when in that condition I am quite easily to anger and quite irritable, and if I did this I must have been under the influence of drink to such an extent that I cannot remember it at the present time.
    “ I make this statement of my own free will because it is true, and without any promises from the officers or anyone else.
    [Signed] “Joseph Droste.
    “ Subscribed and sworn to before me this twenty-first day of May, A. D. 1908.
    “Henry C. Clark,
    “ Justice of the Peace.”
    When respondent was sworn in his own behalf, upon the trial, this statement was varied in some particulars, the most important being that when respondent and deceased entered the churchyard the deceased fell behind a short distance; that he heard voices behind him; that he thought he might have seen another man besides Cook in the yard; and that when Cook came up to the buggy to get in, respondent asked him with whom he had been talking, to which he replied in German, “that damned Nick.” Between the time of the commission of the crime and the trial, one Nicholas Kraemer, an uncle of the deceased, who was addicted to the excessive use of intoxicating liquors, had died. The defense endeavored to show that the crime might have been committed by Kraemer, and that some ill feeling had existed between Kraemer and deceased.
   Brooke, J.

{after stating the facts). The first two assignments of error relate to the testimony of Barbara Miller, who was permitted to state with whom she had attended certain parties in 1907 and 1908, and to detail a conversation had with respondent in April, 1908, relative to deceased. She testified:

“ Benno had asked to take me home, and I told Joe on the way going home; Joe said if I knew what Benno said about me, I would never speak to him again.”

We are of opinion the testimony was competent as tending to show the relation then existing between respondent, deceased, and the witness, and as tending to disclose a possible motive for the commission of the crime.

Respondent next assigns error upon the admission by the trial court of the deposition of Lena Kraemer, widow of Nicholas Kraemer, taken upon the examination before the magistrate. It appears that on Saturday of the first week of the trial the prosecutor announced that Mrs. Kraemer was about to be confined and therefore could not attend and give her testimony. He then offered her testimony taken before the magistrate. Respondent’s counsel objected. Thereupon, the court suggested that she be examined at her home. To this proposition counsel for ■the people assented, but respondent’s counsel neither assented nor refused. Upon the following Monday the matter again came up, and again counsel for respondent did not consent to taking the testimony .at Mrs. Kraemer’s home. On Tuesday the deposition was again offered, «and, after a lengthy discussion, the court said:

“ As I said yesterday, the deposition will be received, but the other party will have the right, some time during the trial, to take her deposition if she is in such shape it can be.”

The deposition was then received. No motion was made by respondent’s counsel for a continuance, and we think it is apparent from the record that he was not very anxious to subject the witness to further cross-examination, otherwise he would have consented to attend an examination of the witness at her home, as proposed by the court, and assented to by the prosecutor. The examination before the magistrate was taken stenographically, in the presence of respondent and his counsel. There was opportunity for full cross-examination, of which counsel for respondent availed himself.

The precise question here involved received consideration in the case of People v. Farrell, 146 Mich. 264 (109 N. W. 440), where this court said:

“One Fry was a witness for the prosecution upon the former trial. He was sick and confined to his bed during the progress of this trial. Near the close of the case for the prosecution the prosecutor announced that Mr. Fry was ill and unable to come to court. A recess was taken. After recess the physician was produced to show that Mr. Fry was unable on account of illness to attend court. Counsel for the defense waived the testimony of the physician. The sheriff was sent to bring the witness. He returned, announcing that he had a high fever and could not come. The testimony given upon the former trial was then read by the stenographer. This is urged as error. Counsel for respondent cite no authorities. The question does not appear to have arisen in this court. Upon proof of the death of a witness his former deposition may be read. People v. Sligh, 48 Mich. 54 (11 N. W. 782). Was its admission in violation of the rule that a respondent is entitled to be confronted with the witnesses against him ? He had been confronted with the witnesses and had had the opportunity of cross-examination. The exceptions to the rule are stated by Justice Cooley as follows:
“ ‘ If there were a former trial on which he [witness] was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party.’ Cooley on Constitutional Limitations (4th Ed.), p. 318.
This rule comports with common sense, and we think the testimony was admissible.”

It is urged on behalf of respondent that, inasmuch as a difference of opinion arose among the justices as to another important question involved in that case, this point was not fully considered. We believe, after a careful examination of all the opinions written in that case, it can fairly be said, that upon the point in question there was no diversity of opinion. If this be true, the point has become stare decisis and should so remain, unless it can be shown upon principle or authority that a different rule should be adopted. The rule as here enunciated is not at variance with the decisions of this court in the cases of Howard v. Patrick, 38 Mich. 795, and People v. Sligh, 48 Mich. 54 (11 N. W. 782), though certain language used in the latter case by Mr. Justice Campbell (not necessary for the determination of the matter there before the court) would seem to indicate that, had the court at that time been called upon to determine the question now here, it would have reached a different conclusion than that announced in the case of People v. Farrell, supra. The rule is not in harmony with the decision in the case of Siefert v. Siefert, 123 Mich. 664 (82 N. W. 511)—a civil case. There, Mr. Justice Grant, speaking for the court, said:

“ The only safe rule is that the illness must be of a permanent character. We think this is the rule sustained by the authorities.”
2 Wigmore on Evidence, § 1406, states the rule as follows:
“Any physical incapacity preventing attendance in court, except at the risk of serious pain or danger to the witness, should be a sufficient cause of unavailability; and this has been almost universally recognized by the courts.”

Many cases are cited, among them two involving the illness of a witness, similar to that under consideration here. Reg. v. Harney, 4 Cox Cr. Cas. 441; Reg. v. Stephenson, 9 Cox Cr. Cas. 156.

16 Cyc. p. 1101, states the rule to be:

“ Where, in a civil or criminal case, a witness since the former trial has become insane or bereft of memory by senility, his former evidence, as a rule, is admissible, although the witness himself is in court. * * * It has also been held in many cases that sickness which prevents, attendance as a witness, extreme age, or great bodily in-; firmity, suffice to admit the evidence, except in some juris-¡ dictions where, in criminal cases, nothing but death re-i lieves the prosecution from the necessity of producing the. original witness.”

This author (Wigmore) treats the subject exhaustively (volume 2, §§ 1395-1418), and concludes that the great weight of authority favors the admission of such evidence, as well in criminal cases as in civil cases, and where the illness is temporary only, as well as where it is permanent, or the witness has died. And upon principle, we are unable to appreciate any good reason why the people or respondent should have the benefit of such evidence, in cases where the witness is dead or permanently ill, and be •denied that benefit when the witness is only temporarily ill. In all three cases, the important fact is identical— the witness cannot be produced in person to testify before the jury. The case of Commonwealth v. McKenna, 158 Mass. 207 (33 N. E. 389), has been considered, as well as others of like character. In that State (Massachusetts), the courts have held rigidly to the doctrine that death alone would excuse the production of the witness, and permit the introduction of his testimony, taken at a former trial. This rule excludes the testimony of one permanently ill, as well as that of one temporarily ill, and is, as we believe, not supported by the weight of authority. ¡ The fact that this testimony was taken before the examin-i ing magistrate, instead of upon a former trial, does not change the rule. People v. Dowdigan, 67 Mich. 95 (38 N. W. 920); United States v. Macomb, Fed. Cas. No. 15, 702; United States v. Penn, Fed. Cas. No. 16,025. Upon that hearing, the respondent was confronted with the witness and had, and availed himself of, full opportunity for cross-examination. We are of opinion that, by the admission of the testimony in question, the constitutional right of the respondent to be confronted with the witness against him was not abridged.

Clara Wirtz, a witness for the people, gave testimony as to what words she had heard on the night of the homicide. Upon cross-examination, her attention was called to a conversation, had between herself and a Mrs. Han-kins. She denied making certain statements to Mrs. Hankins, as to what she had heard. Mrs. Hankins was called by the respondent to impeach her. Error is assigned upon a ruling of the court, permitting the people to show, by Miss Wirtz, what she did say to Mrs. Hankins. The testimony was proper. See 2 Wigmore on Evidence, § 10445, where the author says:

“The impeached may always endeavor to explain away the effect of the supposed inconsistency, by relating whatever circumstances would naturally remove it” — citing many cases.

Error is assigned upon the action of the court, with reference to certain testimony given by Leo Cook and Philip Simmons. The court struck out the testimony in both instances, and in the second said to the jury:

“All of that testimony would be valueless, so it will not be deceived at all; it will not be given any consideration.”

Counsel for respondent urges that the error in receiving the testimony was not cured by the remarks of the court. If this claim can be sustained, we are at a loss to know how a trial could be properly conducted. It is manifest that the answer of a witness cannot be known until it is uttered. If, being incompetent, it ip then stricken out, the error is cured, or rather there is no error. It must be presumed that the jury considers only the testimony permitted by the court to stand. The case of People v. Collins, 144 Mich. 121 (107 N. W. 1114), is distinguished. There this court said:

“ To argue, in the presence of the jury, the right to impeach, and to use in the argument alleged hypothetical statements covering the very facts claimed, by insinuation and by inference, to exist, is likely to have all of the effect obtainable from open contradiction and impeachment.”

No such situation exists in the case at bar. The testimony was offered in good faith; it lacked the necessary certainty, was stricken out, and the jury cautioned.

Many errors are assigned upon the charge of the court, particularly those portions thereof relating to:

(1) The presumption of innocence.
(2) Reasonable doubt.
(3) Burden of proof.
(4) Manslaughter.
(5) Self-defense.

We have examined the charge with great care, and find that most of it is couched in language which has heretofore received the stamp of approval from this court. The instructions were clearly correct upon the first three points.

Touching the fourth — manslaughter—it was claimed by respondent that the court should charge the jury that respondent was guilty of murder, in either the first or second degree, or he was innocent; citing People v. Repke, 103 Mich. 459 (61 N. W. 861); People v. Nunn, 120 Mich. 530 (79 N. W. 800); and People v. Owen, 154 Mich. 571 (118 N. W. 590, 21 L. R. A. [N. S.] 520). The crime in each of these cases was committed in the presence of eyewitnesses. In the case at bar, the evidence is wholly circumstantial, and there is involved the question of respondent’s intoxication, whether the act was committed in the heat of passion, or in a sudden affray (indicated to some extent by the loud and angry language used by the assailant of deceased, at the time of the homicide). It will be remembered, too, that while respondent upon the stand denied that he had committed the assault, there is no doubt that he and deceased were together in the churchyard, at the time it was committed, and while the loud and angry threats were uttered. There is evidence likewise tending to show some ill feeling between respondent and deceased, and trouble between them earlier in the evening. The jury, from all the facts of the case, may have concluded that respondent was alone with deceased at the time of the homicide, that he struck the fatal blow, but that, at the moment, his intoxication or passion was such as to rob his act of the necessary elements of murder, and we are of opinion that this view of the testimony was warranted. The trial court was clearly warranted in submitting the case to the jury on the theory of manslaughter, as well as that of murder. Baker v. People, 40 Mich. 411; People v. Hamilton, 76 Mich. 212 (42 N. W. 1131); People v. Wolf, 95 Mich. 625 (55 N. W. 357); People v. Palmer, 96 Mich. 580 (55 N. W. 994). See, also, State v. Magers, 35 Or. 520 (57 Pac. 197), and cases cited.

Upon the question of manslaughter, the court charged the jury as follows:

“ Manslaughter is the unlawful killing of another without malice, express or implied. The offense is one that is committed without malice or premeditation, the result of temporary excitement by which the control of the reason is disturbed, rather than from any wickedness of the heart or cruelty or recklessness of disposition. The general rule is that reason should, at the time of the act, be disturbed or obscured by passion, or an excitement of any cause, to an extent which might render ordinary men of fair, average disposition, liable to act rashly or without due deliberation or reflection, and from passion and lack of reason rather than from judgment.”

This language is taken from the decision in the well-considered case of Maher v. People, 10 Mich. 212 (81 Am. Dec. 781), the only interpolation being the words italicised, “ or an excitement of any cause.” This addition to the approved definition, had evident reference to the intoxicated condition of respondent, and was warranted by the facts in the case. And, in any event, it was a variation distinctly favorable to respondent, and, therefore, one of which he has no reason to complain.

It is urged that, the court having submitted the case to the jury upon the theory of manslaughter as well as murder,' it was his duty to have instructed the jury upon the question of self-defense. This would be true, and the authorities cited by respondent’s counsel would be pertinent, if respondent had admitted the homicide, but claimed he acted in self-defense. No such claim was made. Respondent’s theory was that the fatal blow was delivered by another than himself, and that he was wholly innocent. No request to charge upon the subject was preferred by the respondent, and under these facts of the case no instructions were necessary.

Other errors are assigned upon the charge of the court, all of which have been carefully considered, but we believe they are without merit.

The case was carefully tried, and was submitted to the jury under a charge which we think fully protected the right's of the respondent.

Error is assigned upon the refusal of the court to grant a new trial. Discussion of the affidavits filed thereon, and reasons urged, is unnecessary. It is sufficient to say that we are of opinion the motion was properly denied.

The conviction must be affirmed, and the court directed to proceed to sentence.

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


author: McAlvay, J.

text:
    GRABILL v. BARNHART BROS. & SPINDLER.

    1. Sales — Warranty — Fitness for Purpose Intended — Contracts.
    The sale of a second-hand printing press for the purpose of printing a seven-column quarto newspaper, which purpose it would fulfill, may not be rescinded by the purchaser because it would not. suit the complainant in other particulars, not enumerated in the contract or mentioned at the time it was executed.
    2. Equity — Cross-Bill—Relief Granted.
    In such suit to rescind the contract of sale, equity will relieve the defendant on a cross-bill, by a decree to compel the payment of the unpaid purchase price for the press, and of damages and costs, in order to finally dispose of the controversy.
    Appeal from Montcalm; Davis, J.
    Submitted November 19, 1909.
    (Docket No. 115.)
    Decided March 5, 1910.
    Bill by Elliott F. Grabill against Barnhart Brothers & Spindler to rescind a contract on the ground of fraud. Defendant filed an answer in the nature of a cross-bill for the specific performance of said contract. From a decree for complainant, defendant appeals.
    Reversed, and decree entered for defendant.

      N. O. Griswold (Ethelbert V. Grabill, of counsel), for complainant.

      Kleinhans & Knappen, for defendant.

       Rehearing denied April 1, 1910.

   McAlvay, J.

Complainant in this suit was the owner of a newspaper plant in Greenville, Mich. He contemplated increasing the size of the newspaper he published from a six-column quarto to a seven-column quarto, and to publish a daily paper of the seven-column size, and for that purpose needed a larger press. Defendant, an Illinois corporation, was doing business in Chicago, dealing in selling, among other things, second-hand printing presses. In April, 1907, complainant sent his son to Chicago to defendant to purchase a press on which to print a seven-column quarto newspaper. There is no dispute between the parties but that was the kind of press ordered. The son looked at a press which was represented to be of a capacity to fill the requirements desired, and an option was given upon it by defendant provided a check of $100 was remitted as soon as he returned to Greenville. This check was sent as agreed and was received by defendant. In the acknowledgment of this payment, written April 19, 1907, defendant stated:

“We have your order and contract for the 87 by 53 Cottrell, and we shall make the promptest possible shipment.”

This was a second-hand press, sold to complainant for $1,100. The price of a new press of the size and kind was about $3,600. It was sold as a second-hand press to be rebuilt for the purpose desired.

It was shipped to Greenville and arrived in the month of July, 1907. Defendant’s erector came to Greenville for the purpose of erecting the press, beginning such work on August 3, and completing it August 13, 1907. On this date the erector’s report was made out describing the property as a second-hand 35 by 53 Cottrell press, and giving full details of the work done by him. This was indorsed by complainant as follows:

“The above report is correct, and the erection of the press is satisfactory
“E. E. Gbabill,
‘ ‘ Proprietor.
“Signed August 13, 1907.”

Afterwards, on August 19th, a contract of sale was entered into between the parties, as follows:

Barnhart Bros. & Spindler, an Illinois corporation, of Chicago, Cook county, Illinois, as first party, agree to sell E. F. Grabill of Greenville, Montcalm county, Michigan, the second party, and said E. F. Grabill agrees to buy of the said Barnhart Bros. & Spindler on terms hereinafter specified, the following goods and chattels, to wit:
“ One (1) second-hand 35 by 52 Cottrell & Sons 2 revolution 4 roller printing press, air springs, rear delivery, with steam and overhead fixtures complete; the machine described being located in Greenville, Michigan.
“The said E. F. Grabill agrees to pay to Barnhart Bros. & Spindler for said machine the sum of eleven hundred dollars ($1,100) as follows.”

The contract also provided as follows: The payments were $100 accompanying the order; $200 upon the arrival of the machine; $800 in twenty-five notes of $32 each, at 6 per cent, per annum, dated July 30, 1907, payable one each month after date. Title to the property was reserved in defendant until fully paid; complainant to keep the property insured for the benefit of defendant, and upon any default of complainant defendant was authorized to take possession of the property. On the same day the contract was signed, the second payment of $200 was made. The first note of $32, due August 30th, was paid by complainant.

After being erected, this press was first used to print a poster, and then was run for several weeks to print complainant’s newspaper, which continued to be printed as a six-column quarto until about September 1st. The press was satisfactory for that work. Up to this time no attempt had been made by complainant to use it for the purpose of printing a seven-column quarto newspaper. About September 1st, complainant wrote relative to the ‘ ‘ chases ” furnished with the press. This letter we do not find in the record, but evidently, from the answer written September 3d, complainant had found fault because “quarto chases” had been furnished instead of “quadruple chases,” and defendant’s reply was that these “chases” were furnished as ordered. It appears that about September 9th complainant for the first time used the press for the purpose of printing a seven-column quarto newspaper. On September 10th defendant answered at great length a letter of that date received from complainant. From its contents it appears that complaint was made as to the working of the machine, and defendant gave detailed instructions what to do in order to run the machine properly. This letter was answered, on September 12th, by complainant, as follows:

“Your unsatisfactory letter received and no relief has been afforded by it. Until a correction of the press is made by you we are obliged to refuse same. A sample of this week’s paper is forwarded, * * * and it is impossible to do other with the margins than has been done on the exhibit.”

This letter was received, but no copy of the paper. Defendant replied September 17th by letter, saying:

“ * * * The press sold you was changed so it would print four pages of a 7-col. newspaper, and that was satisfactorily demonstrated in our shop before the press was shipped out. We are under no contract to make margins match the margins of any ready print sheet or anything else. There are thousands of papers printed with just such margins as this press will accommodate. We made no mistake, nor have we made any misrepresentation. If it is necessary to give you a practical demonstration of the fact that we have fulfilled our contract, we shall expect you to pay the expenses of whatever man is sent to make the demonstration.”

On the next day complainant replied, stating that when the visit was made to Chicago he desired a seven-column quarto press and was assured the press inspected could be adapted to such sized newspaper, and further said:

“ Now our claim is that an apron of sufficient size has not been put on the press. Using the chases that were furnished with the press, a 7-column quarto sheet can be printed, but we contend that your statement is absolutely false when you say ‘there are thousands of papers printed with just such margins as this press will accommodate.’ ”

This letter referred to the ‘ ‘ margins ” and “ chases ” and indicated general dissatisfaction. It accepted the offer by defendant to show that the contract had been fulfilled, and it was claimed that one of defendant’s salesmen had stated that the press was not right. Accordingly, an expert was sent by defendant from Chicago to Greenville, who remained five days working on the press. The day he returned to Chicago he received from complainant and his foreman the following certificate:

“Greenville, Mich., Oct. 8, 1907.
“ This is to certify that Mr. McAllister arrived here last Friday and looked over the Cottrell press which has given us so much trouble and remained here until Wednesday evening. That he left the press in good working condition and satisfactory to us.
“John B. Greenway,
“Foreman Independent Office.
“Approved: E. F. Grabill, Proprietor.”

Upon his arrival in Chicago the expert made his report, and delivered the above-signed statement to defendant’s office, from which, on the next day, October 4th, a letter was written to complainant:

“ * * * Mr. McAllister has returned and reports that he has got'you running and that the press meets with your approval as per your memorandum given to him. We are very much gratified that it turned out all right, as we were sure it would if we had a chance to demonstrate it.”

No reply was made to this letter. Complainant wrote, October 17th, stating that he had notified the bank to return his note, because he had heard nothing from defendant in regard to the continuous blur on the outside columns which had never been remedied. On October 26th, complainant, in reply to a letter of October 19th, wrote at considerable length giving his reasons for refusing payment on notes, as follows:

“We are not refusing payment on these notes to make money. We are refusing payments because we have not the press we contracted for, that is, a press that will print our 7-column quarto in such manner as the Independent has always been printed. * * * ”

This is the last letter between the parties. Complainant retained and continued to use this press until the time of commencing this suit, December 4th, being about the date defendant had sent a representative to Greenville to take possession of the property.

This bill was filed for the purpose of “vacating, annulling, and setting aside ” the contract, because procured by fraud and misrepresentation; to require the surrender and cancellation of the notes given as part of the purchase price of the press, for the same reasons; also requiring defendant to place complainant in statu quo and to return the $332 paid, and to pay all damage suffered. There was a prayer for general relief, and for an injunction to restrain defendant from bringing suit on the notes, and from proceeding to deprive complainant of the custody of the press “until defendant has complied with the terms of the final decree of the court in that regard.” The injunction issued upon the filing of the bill of complaint and continues in force. Complainant continued to use the press after he brought suit and until he purchased another. Upon a hearing in open court, a decree was granted complainant according to the prayer of his bill. Defendant in this court urges that this record does not sustain the allegations of the bill, but, on the contrary, shows that complainant was not induced to enter into the contract by reason of false representátions of defendant, and that the machine furnished did the work it was represented that it would do.

There is no dispute between these parties but that complainant desired a. press which was large enough to print a seven-column quarto paper, and the proof is clear that the press furnished was the one complainant’s son saw in Chicago, and the one which defendant rebuilt and shipped to Greenville and set up for complainant’s use. Defendant admits in its brief that “there is no question but that it was represented by defendant that the press ordered and delivered would print a seven-column quarto.” Complainant knew that this was a second-hand press, and “he insisted on one thing only, namely, that the press should be suitable for the publication of a seven-column quarto.” The determination of the fact whether or not such a press was furnished necessarily disposes of this case.

Complainant received the press and signed the contract in question August 19, 1907. He used the press for several weeks before he changed from a sis to a seven-column paper, and claims then to have discovered that it would not do the work which both parties admit it was represented it would do. It does not appear that any other stipulation as to the capacity of the machine was made, at the time the order was given and the first payment made and the order accepted, than that it would be suitable for the publication of a seven-column quarto. It clearly appears from the record that complainant used what is known to the newspaper business as “patent insides ;” that is, the inside pages of his paper were printed by some concern which furnished them to the trade, leaving the outside pages blank, which were printed in his office, and this was the kind of paper which he attempted to print on this press in question. It also appears that, when printing the blank pages of the “patent insides” on this machine, the margins left on the sheets did not correspond with the margins on the “ patent insides ” pages. It is not disputed but that this press as furnished will print a seven-column quarto paper with a one-inch margin and do the work well, and that many newspapers are published with that margin. Complainant’s letter of September 18th, supra, says:

“ Using the chases that were furnished with the press, a seven-column quarto sheet can be printed.”

This was in answer to defendant’s letter of September 17th, supra, which said:

“We are under no contract to make margins match the margins of any ready print sheet or anything else.”

Complainant’s son and the foreman both stated that this press would print with a one-inch margin without a blur. It is apparent beyond dispute that the press was unsatisfactory to complainant because the margin was but one inch wide. The letter of October 26th, supra, emphasizes this:

“We are refusing payments because we have not the press we contracted for, that is, a press that will print our 7-column quarto in such manner as the Independent has always been printed.”

This record has been read with care to find, if possible, that complainant, or any one on his behalf, at the time the order was given or the contract was signed, made any reference to the matter of the width of margin this press would make, and we find none. The first suggestion of such a requirement appears in the letter of complainant dated September 12th, supra. In the brief for complainant it is claimed that the letter from defendant of April 19th, where acknowledgment is made for the order “for the 37 by 62 Cottrell,” indicates that a larger press than this 35 by 52 was in the contemplation of the parties. The record shows that no such size of that press was manufactured, and the whole testimony of complainant is to the effect that no sizes were considered, that ‘ a press was wanted to print a 7-column quarto newspaper.” If complainant had considered that a larger sized machine was required, his attention was challenged to the fact when the contract was signed and the erector’s report indorsed. Both of these instruments described this press which was then in the possession of complainant as a “second-hand 35 by 52 Cottrell.”

We find that the contract was not secured by fraud or false representation on the part of the defendant, and that the press furnished fulfilled all the representations made by defendant. The conduct of complainant, during all the time after the press was erected until he repudiated the contract, can only, be reconciled with our conclusion. In the first place, he took no steps to test its capacity prior to making the contract, although requested so to do. After he claims to have discovered that the press was not as represented, he acknowledged in writing that it was satisfactory, and he retained the property and used it in his business, holding it by injunction, until he saw fit to secure another press.

In this opinion we have not referred to many minor matters contained in this record, but have stated and discussed undisputed faets and the writings of the parties from which we determine the case. Our finding upon the controlling question of fact in the case renders unnecessary any discussion of the right of complainant to the relief prayed, in view of his undisputed conduct above outlined, after his claimed discovery of fraud and misrepresentation. Complainant having failed in establishing a right to rescind this contract, on the ground relied upon, or for any other reason, the question as to the disposition which the court should make of the case is presented. Defendants’ answer in the nature of a cross-bill prayed for a decree in its favor, for the amount of the balance of the purchase price of the press, and for damages and costs. This court has recently applied the doctrine that such relief may be granted upon a cross-bill. Village of Frankfort v. Schmid, 151 Mich., at pages 86 and 87 (114 N. W. 855), and same case in 155 Mich. 318 (118 N. W. 961). This applies to cases similar to the one now under consideration, where a court of equity may do complete justice between the parties and finally dispose of a controversy.

The decree of the circuit court is reversed, and a decree will be entered in this court so declaring, and establishing the validity of the contract, determining the amount due thereon, with interest, granting the relief to defendant prayed by its cross-bill, and also that defendant recover costs of both courts.

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


author: Moore, J.

text:
    KIMMERLE v. VILLAGE OF CASSOPOLIS.
    Municipal Corporations — Parties — Suit to Set Aside Contracts — Statutes—Jurisdiction in Equity.
    Failure to show that the complainants are pecuniarily interested in the controversy in an amount greater than $100 warrants the dismissal of a suit by taxpayers of á village to obtain the rescission of contracts made by the village for the furnishing of water and light to the municipality. 1 Comp. Laws, § 435.
    Appeal from Cass; Des Voignes, J.
    Submitted October 18, 1909.
    (Docket No. 59.)
    Decided March 5, 1910.
    Bill by Charles H. Kimmerle and another against the village of Cassopolis and the Milling & Power Company to enjoin the performance of certain contracts. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      TJlysses 8. Eby (John B. Carr, of counsel), for complainants.

      M. L. Howell, for defendant village.

      Smith & Lyle, for defendant Milling & Power Co.
   Moore, J.

The bill of complaint is filed by two citizens of Cassopolis who describe themselves as resident freeholders and taxpayers. They seek to invalidate two contracts made May 14, 1908, between the two defendants, one for pumping water for the village, and the other to pay for lighting the streets of Cassopolis with arc lights, and to restore two similar contracts made in 1901, between the defendants, which would have expired according to their terms July 1, 1912. Each of the defendants filed an answer to the bill of complaint and an answer in the nature of a cross-bill. Replications and demurrers were interposed. A hearing was had in open court. Complainants’ bill of complaint was dismissed. The two contracts of May, 1908, were amended. The complainants have brought the case here by appeal. The defendants have not appealed.

The record discloses that the village authorities are not complaining about the contracts which it has entered into with the defendant the Milling & Power Company. In his decree the trial judge found that the “complainants have no such right or interest in the subject-matter of this suit as authorizes them or either of them to maintain the same.”

In our view of the record, it will be unnecessary to consider many of the questions discussed by the solicitors. We have aleady stated that complainants describe themselves as resident freeholders and taxpayers. Nowhere in the bill is it stated that they will sustain any pecuniary loss because of the contracts stated in the bill of complaint. In paragraph 23 of the bill it is said:

“Your orator, Charles H. Kimmerle, further shows that he is a member of said village council, but is opposed to such purported contract,” etc.

In paragraph 29 of the bill of complaint it is stated:

“And your orators aver that the value of the matter and differences involved herein exceeds the sum of $1,000.”

This is the extent of the averments in relation to the effect upon the complainants of the doing away of the old contracts by making of the new ones. It is not averred, and it is not shown by the record, that complainants are affected pecuniarily by these contracts in any substantial way.

Complainants say they are authorized to file this bill because they are freeholders and taxpayers, and cite in support of their contention the case of George v. Electric Light Co., 105 Mich. 1 (62 N. W. 985). A reference to that case shows that two cases were heard as one, and that in the George Case Mr. George and 20 or more other taxpayers joined in the bill of complaint, while Mr. Campbell and other citizens and taxpayers joined in the bill of complaint. As no question of jurisdiction was raised, it is not a violent assumption that complainants’ interest in the litigation amounted to more than |100. Section 435, 1 Comp. Laws, provides:

“Such courts shall dismiss every suit concerning property, * * * where the matter in dispute shall not exceed one hundred dollars,” etc.

This case is not within the exceptions named in said section.

The decree is affirmed, with costs.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Ostrander, J.

text:
    J. I. CASE THRESHING MACHINE CO. v. HUBER.
    1. Sales — Failure oe Consideration — Breach oe Warranty.
    In an action by a vendor of a traction engine on notes given for the purchase price, the defendant, who claims that the engine failed to work as warranted under the contract, may recover amounts paid on the contract of sale, and it is not prejudicial error to permit him to recover on a mistaken theory that there was a failure of consideration under the contract, where the verdict necessarily determined in defendant’s favor the same issues which would have been submitted if the case had been correctly tried.
    3. Same — Delivery and Aooeptanoe — Express Warranty — Conditions.
    A condition in the contract binding the defendant to return the property to the place where he received it, the contract being made on a form used in plaintiff’s business, is held to apply to instances where the delivery might be made from a warehouse of the plaintiff, not to a case where the engine was delivered by a railroad company.

      Error to Eaton; Smith, J.
    Submitted October 22, 1909.
    (Docket No. 151.)
    Decided March 5, 1910.
    Assumpsit by the J. I. Case Threshing Machine Company against Ezra S. Huber upon a promissory note. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Huggett & McPeek and Gary, Upham & Black, for appellant.

      Garry G. Fox and Frank A. Dean, for appellee.
    The action is assumpsit, the declaration containing the common counts, and setting out, under proper notice, a copy of a promissory note purporting to have been executed by defendant. The plea is the general issue, with notice that the note sued upon and another note and a certain portable engine were delivered by defendant to plaintiff for a certain other portable steam engine, which plaintiff agreed to thereafter deliver to defendant.
    “That instead of delivering the said engine which it agreed to deliver, the said plaintiff wholly failed in that regard, and because of such failure the defendant says that no consideration whatever passed to him for said promissory notes so sued upon, or for said other promissory notes so executed and delivered to said plaintiff simultaneous with said note so sued upon, which this defendant avers the said plaintiff has disposed of to some stranger to said contract, or for said Huber engine so delivered to said plaintiff as part payment for said engine, which said plaintiff so agreed to, but failed to deliver to this defendant.
    “And this defendant says that he is entitled to a judgment against said plaintiff for damages because of the disposal and delivery of said note to some stranger to said contract, and also because of the conversion to its own use of said Huber engine of said plaintiff, and claims damages, by reason of the premises aforesaid, at the sum of $2,000.”
    The contract of the parties is in writing. By its terms the defendant agreed to receive “on cars on arrival subject to the warranty below printed,” and to pay for an engine to be furnished by the plaintiff. The engine was described in the order as:
    “One 20-10x10 horse power simple engine, traction, coal and wood burning and the fixtures usually furnished with your engines. Also for the above machinery jacketed boiler.”
    Defendant did receive and pay for the engine. It was of the kind and description called for by the contract. The contract stipulated that the “purchaser expressly waives all claims for damages on account of the nonfulfillment of said warranty.” The agreed method of redress is the return of the engine, or of the defective part or parts, by the purchaser, free of charge, to the place where it was received, and notification to the plaintiff, which at. its option may substitute what “shall fill the warranty, or notes and money for such part immediately returned and the contract rescinded to that extent and no further claim made on the company.”
    There was testimony tending to prove a trial of the engine ; notification to plaintiff that it did not perform as it was warranted to do; repeated and continued and unsuccessful efforts of plaintiff’s agents to make it perform. The engine was delivered to defendant, by rail, at Charlotte, Mich. It was not returned to plaintiff there, but was left standing, unprotected, on premises of defendant. Plaintiff was notified of the fact, and that defendant “will not under any circumstances accept and pay for the engine.” Defendant made no unconditional offer to return it. He received the engine in October. Efforts to make it perform were continued, at intervals, until December 4th. In May following plaintiff, in writing, offered to substitute another engine upon return of the one first sold to the place where it was received, the new engine to be delivered at the same place, and to accept new notes in place of those first taken. In reply defendant stated that he had purchased an engine, and could not accept the offer. He proposed a settlement which, according to his .statement, involved a loss to himself of some $200. In this letter, as in some written earlier, defendant takes the position that he never accepted the engine. A clause in the contract of the parties reads as follows:
    “ It is further understood and expressly agreed that general agents, so called, have no general agency powers, and any breach of this warranty or any omission on the part of the company does not confer any right of damage for delay or loss of work or earnings, or to other damages, and shall not affect the rights of the parties with respect to any other machinery sold the purchasers or any warranty of such other machinery and no cause of action arising out of this contract or transaction shall be offset or counterclaimed against any liability of the purchaser arising out of any other contract or transaction. In no event shall the company be liable otherwise than for the return of cash and notes actually received by it.”
    The record shows the following:
    “We run the engine down home, and Mr. Thompson and the experts went down, and were standing around there. I says, * Now, Mr. Thompson, this is up to you.’ Isays: ‘ We can’t do nothing with that engine. What do you want done with it ? He said, ‘ Let the water out of it;’ to let it stand here until there is something done about it. And then he made some remark there: ‘ There is something rotten about it; I can’t fire it, and,’ he says, ‘there is nobody can.’ So, I let the water out of the engine, and it sets right there yet.

      “Mr. Huggett: We move to strike the answer out.

      “The Court: I understand Thompson is the State agent.

      “Mr. Huggett: He was State agent at that time.

      “Mr. Dean: He was acting directly with the factory at the time.

      “Mr. Huggett: The contract expressly provides that he has no right to make any statement whatever to bind the company, or any other person in testing that machine.

      “The Court: It doesn’t follow it binds the company; but certainly Mr. Huber has a right to say just what he did, and all that was done with the people who came there representing the company. I will deny the motion to strike.

      “Mr. Huggett: My brothers are putting it in herewith an attempt to bind the company.

      “Mr. Dean: No; we simply say we never accepted this. If we had not given it a fair test, then they would have said we never tested it. But after we tested it we refused to accept it.

      “The Court: I will say no statement of that kind can bind the company; but it is permitted by the court to show just what Mr. Huber has done with this engine and all that was done.

      ‘Mr. Huggett: Exception.
    “Witness continues: That is about all there was to it. After that we drawed the water out, and then the next morning Mr. Thompson, I understood him to say, they telephoned to Racine, and this expert that was from Racine they ordered him to go back the next morning and line this engine up to see whether it was perfectly in line, every part of it properly where it should be; that is the way I understood it; whether it was properly constructed. This gentleman — I really objected to that in the first place, because I didn’t know nothing about — particular about lining up an engine. I told him, I says: e If you will be honest with me, I will submit to your lining this engine up; and, if you find it all right, say it is in regard to being in line, why all right,’ and they went at it and lined it up — what they call it. After they got through he says, ‘ There is nothing I could find out of place about the engine.’ So far as everything being in its place where it should be. And they went away then, and the next morning they came back with another man from Racine with what they call an indicator. They wanted me to go to work and try this right out with them again and fire it all up and fill it up with water and fire it up, and put it onto the separator and run it again. And Mr. Thompson told me the day before that he was done with, and that is all there was to it; he had his last man here that he had, and I was surprised at their coming back the next morning with another man. He said this man that was there — the expert that was there was the foreman of the testing room in the factory; the man that was there the day he was trying to fire it. They did not do anything with the indicator. I says, c I ain’t got no time to fool away trying this out again.’ I told them they could have the team and the water tank, and do what they were a mind to with the engine, but I wouldn’t have anything more to do with it, after they said they got through with it.

      “Q. From the time that Mr. Thompson instructed you to draw off the water and leave the engine standing there, has that engine been at the order of the plaintiff ?

      “Mr. Cook: I object to it as leading and calling for the witness’ conclusion.
    “ The Court: Answer.

      “Mr. Cook: Exception.
    “ Mr. Dean: I will change that.

      “Q. Since Mr. Thompson left the engine and gave you instructions what to do with it, has the engine been at the order of the plaintiff ?

      “Mr. Cook: Objected to for the same reason.

      “ The Court: Overrule it.

      “Mr. Cook: Exception.

      “A. Certainly.

      “Q. Have you ever used it or exercised any acts of ownership over it ?

      “A. No, sir; never done a thing to it.”
    The jury were instructed that there was no dispute about the order for the engine; that defendant paid in full for it; that he received it, and proceeded to use it in his business of threshing. They were told that the defense to the note was a want of consideration for the same because the plaintiff failed to deliver the engine purchased by defendant; that defendant also sought to recover the amount of the other outstanding note and interest and the value of the second-hand engine turned over to plaintiff in part payment for the engine furnished by plaintiff. In various parts of the charge this theory of defendant was presented to the jury, with the instruction that, if the company failed to make the engine such a one as was ordered, defendant was under no obligations to accept or pay for it. The court was requested by plaintiff to say to the jury:
    “(8) There is some claim on the part of the defendant, Huber, that he never received the engine described in the contract, and never accepted the engine that he did receive. In regard to that, you are instructed that the engine received by the defendant, Huber, at the depot at Charlotte on or about September 20, 1907, was an engine of the kind or description called for by the contract or order, and the receipt of said engine, by said defendant at the time and place aforesaid, was an acceptance thereof by the defendant, subject to the warranty contained in the contract, and the title thereby passed to the defendant, Huber.”
    This was refused, although the jury were instructed that the engine was of the kind or description called for by the order, and the receipt of the same by defendant was an acceptance subject to the conditions of the warranty. After being out for a time the jury returned into court for further instructions, when the following occurred :

      “The Foreman: We wish to ask for the ruling of the court as to the further responsibility of the defendant, Mr. Huber, if we find that he followed the instruction of Mr. Thompson as to drawing water from the engine and leaving it where requested or directed by Thompson. We want to know if Huber would be released from the contract and further responsibility if we should find he did as he was directed by the company’s agent.

      ‘cThe Court: I don’t know but I can give you that better right from the formal charge. Under the topic of the acceptance by Mr. Huber of the engine I gave you this instruction which I think possibly covers what you want:

      (X) " ‘I further charge you that, if you find from the evidence that "W. I. Thompson was at the time of the delivery'of this engine, and at the time of the testing of the same, the agent for said plaintiff, and ordered and directed the defendant to draw the water from said engine, and to leave the engine where it then stood until an adjustment of the matter between the plaintiff and the defendant, and if you find that the defendant followed such direction, then 1 charge you that such act would not be an acceptance of such engine, and the defendant would not be held liable for the purchase price thereof.’
    “ Does that cover what you want ?

      “The Foreman: I think that is what we wanted.”
    They returned a verdict for defendant for $1,133.50. Motion for judgment for the note sued upon non obstante was made and overruled. A new trial was refused.
   Ostrander, J.

(after stating the facts). The contract of the parties is one of sale of a chattel. The engine was bought and paid for. Title to it passed to the vendee, and at any [time he might have sold it to another. The engine was sold with express, but conditional, warranty. A trial of the engine was required; notice of improper performance, or of defects, was required, and it was one of the conditions that the seller, at its option, might return the purchase price or replace the engine, or any part of it. The vendee was obligated to render friendly assistance to efforts of the vendor to make the engine perform as it was warranted to do. Another condition was that the vendee should return the machine to the place where he received it. There was the necessary trial and the notification. It will be assumed, for the purposes of this discussion, that the engine was not as warranted. Reasonable friendly assistance was furnished by the vendee. It would be wholly unreasonable to require the vendee to indefinitely postpone his right to return the machinery, meantime assisting the vendor, whenever called upon, in efforts to make the engine perform. What the vendee did not do was to return the engine to Charlotte.

The vendee has been permitted to recover from the vendor the entire purchase money and interest, not upon the theory of a recoupment of damages for breach of the warranty, but upon the theory that there had been no acceptance of the engine, and that consideration for the purchase price had wholly failed. The question is whether, nevertheless, the judgment may be and ought to be sustained. I think it ought to be affirmed, for the following reasons: The condition that the vendee shall return the machinery “to the place where received ” is one which may be reasonable and enforceable in many cases. If the vendee receives the chattel from an agent of the vendor, at a warehouse maintained by the vendor, the condition may be specific enough, and in such cases it must be complied with. But when machinery is received from a railroad company, upon the premises of the company, how shall the vendee comply with the condition ? No other place of return is suggested in the brief for the plaintiff. He ought not to be required to commit a trespass in order to comply with a condition which is imposed for the benefit of the vendor. He ought not to be required to negotiate with the railroad freight agent for permission to leave a traction engine on the premises of the company. He ought not to be required to assume the position of a consignor of the machinery, or to pay charges. In principle the point is ruled by Osborn v. Rawson, 47 Mich. 206 (10 N. W. 201), and Westinghouse Co. v. Gainor, 130 Mich. 393 (90 N. W. 52).

This ruling renders unimportant the contention that the directions of plaintiff’s agent, testified to by the defendant, as to the disposition of the engine changed or varied the contract. There was testimony tending to prove that the engine was without value for the use for which it was purchased. It is unimportant that for old iron it may have some value, or that it may be dismantled, and parts of it be sold or used elsewhere. We are therefore able to say that the real issue was in fact tried without any error which would have affected the result if it had been tried upon a proper legal theory. No other or different testimony would have been or could properly have been produced by either party. Defendant is in no position to accept the result and deny to the plaintiff the right to take the engine. Upon the facts found by the jury costs must, in any event, have been paid by the plaintiff. Under the circumstances we do not feel obliged to reverse the judgment and to order a new trial.

The judgment is affirmed.

Montgomery, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.