text:
    S. T. Conway and others v. The Township Board of Waverly.

      Bill in Ohancmj to remore cloud won title, what should set forth: Allegation of illegal taxes, how made. A bill to restrain the collection of taxes on the ground that they constitute a cloud upon the title, must set forth the description of the lands, or it cannot be sustained. And where it alleges that a part only of the taxes are illegal, it should furnish the court with the information which will enable it to separate the legal from the illegal.

      Heard January 8th.

      Decided January 14th.

    Appeal in Chancery from Yan Burén Circuit.
    This bill was filed by twenty-nine complainants to restrain the collection of the taxes for the year 1865, levied against them on the assessment roll of the town of Waverly, Yan Burén county.
    Neither the description nor value of complainant’s real property is set forth in the bill.
    The illegal taxes alleged were certain taxes assessed to refund bounties, and which were included in the taxes.
    The bill prayed for an injunction.
    Defendants demurred for misjoinder, and for want of equity in the bill. The demurrer was sustained and the bill dismissed.

      D. JD. Hughes, for complainant.
    1. The case comes under a well recognized head of equity jurisdiction, and may be maintained to remove a cloud from the title of complainants. — Comp. L. § 3490 ; 12 Mich. 414; 8 Id. 2'76; 9 Id. 94; 10 Id. 248; 5 Id. 336 ; 15 Barb. 595.
    And it makes no difference that the tax or cloud is irregular on its face. — 12 Mich. 414; 14 N. Y. 9.
    The court also has jurisdiction to restrain the defendants within the scope of their jurisdiction and powers. — liar. Mich. Ch. 96.
    2. The bill is not multifarious for a misjoinder of complainants, or causes of action.

      a. There is no fixed, inflexible rule by which to test the question of multifariousness or misjoinder of complainants, and each case must stand upon its own circumstances.— 9 Mich. 58; Story's Eq. PI. §284; Adams' Eq. 650, note; 1 Barb. Ch. 62.

      b. The general and approved rule is, that when the parties have a common interest touching the matter of the bill, they may join, although they claim under distinct titles, and have independent interests; but this rule must yield to questions of convenience. — 2 Anst. 469; 9 Mich. 59; Story's Eq. pi. 120.

      c. The case comes within this rule as construed by the courts. It is in principle like the case of execution creditors, who may join against the common debtor, who is charged with fraud; such cases do not proceed on the grounds of a common fund, or upon any theory of trust, but on the ground of fraud, to avoid multiplicity of suits, and that they come within the rule. — 6 Johns. Ch. 152; 4 Cow. 682; 9 Paige. 605 ; 1 Sand. Ch. 368.
    The case is in principle like the cases of several joining in a bill to restrain a nuisance. — 1 Barb. Ch. 59; Hop. Ch. 416; Story's Eq. PI. § 286.

      The case comes within the rule, in that it requires but one decree: the interest is common: the pleadings are the same as to all: the proofs are the same as to all: the whole controversy is one transaction: there is nothing peculiar to any one complainant: the interest centers in the one point of the illegality of the tax.
    3. The case is not one where jurisdiction depends upon the amount.— Walk. Ch. 113.
    If it did, the several amounts may be added. — 9 Paige 595, 605.
    4. The tax is illegal. — Laws, 1865, p. 140; 13 Mich. 546.
    5. If the demurrer is sustained on the ground of misjoinder, and not for want of equity, the case should be sent back with leave to complainants to sever. — 1 Pan. Gh. Pr. 670.

      Stuart, JSdwards and Severens, for defendants.
    1. The bill is defective for multifariousness of parties.
    Several individuals, tax-payers in a municipality, having- distinct parcels of property subject to taxation, with no common ownership or interest in the several parcels can not unite in one bill for the purpose of arresting the collector’s proceedings to collect an alleged illegal assessment or to sequester the property itself if the assessment be not otherwise collectable.
    The threatened wrong, if it be such, affects no common interest, nor does it spring from any common act. The collection of the tax from one man does not affect another, but is an entirely different proceeding, and may produce quite different results, as affecting the interests of each.

      a. The doctrine of the English Court of Chancery requires that the complainants should have some common interest in the thing affected, to justify their uniting in one suit. — 1 Turn, and Puss. 297; 12 Simons, 416; Story Pq. PI. § 121.
    The case of several creditors joining in one suit to obtain the application of the debtor’s estate is no exception, for there the subject of controversy is the common fund which in equity belongs to the creditor, and their interest extends to the whole fund, their claims though several constituting a joint burden; and it is necessary and proper that the creditors should all be represented in an arrangement involving an appropriation of the common property.

      b. In this country some courts have gone somewhat further - in a particular class of cases than the English rule would allow, and have permitted parties to unite when there was one common act on the part of the defendant which in producing injury to one has also at the same time produced injury to several. On this principle, the court of chancery has in several instances permitted land owners owning distinct parcels, to unite in a bill to restrain the erection of or continuance of a nuisance affecting their lands injuriously. —15 Barb. 375; 43 Id. 239.

      o. This bill is not filed by the complainants in a representative character in behalf of themselves and others, and so not within the scope of those cases spoken of in the case of 13 Mich. 551.
    Then as to the merits:
    2. The jurisdiction of the court of Chancery to restrain the proceedings of public officers, is one to be sparingly and cautiously exercised. And it is a matter of extreme doubt, whether the court should interfere to restrain official proceedings when those proceedings affect the community generally or a class of inhabitants, except upon the suggestion of the Attorney General, who is charged with the duty of taking such legal proceedings as the public good may require. Indeed, it seems to be pretty well settled that in snch a case as is made by this bill, the court will not entertain a suit instituted by one or several tax payers on their own account, the other tax payers not being present or represented, and for aught that appears, willing and desirous that the tax should be collected and applied to the contemplated purpose. — 6 Mete. 425 ; 7 Gicsh. 254; 14 Conn. 565 ; 17 Id. 372; 19 Id. 128 ; 6 Johns. Gh. 439, 28; 6 Paige 133 ; 18 ffl. 7~. 155; 23 Id. 318; 28 Id. 396 ; 12 Pet. 91; 3 Atk. 750 ; Ami. 158; 2 Ansí. 603 ; 8 8im. 193, 272; 13 Mich. 540; 26 Wend. 132.
    And several of these cases establish that the rule is the same whether the proceeding affects the whole public, or a geographical district only, or a general political class.
    3. The complainants do not show that the proceedings they complain of will affect their lands. The township collector can only reach personalty. He is entirely without power to go farther. If the complainants have personal property he will collect the tax from that. If not, other proceedings supervene under the direction of other officers. And then by possibility a cloud upon the title may be created. This was the point where this court held in 12 Mich. 414, that equity might interfere to prevent the proceedings which would culminate in title de facto, having a presumption of validity.
    At present these complainants are not' in a position to file their bill. The presumption is, that the collector will collect from goods and chattels. It is therefore improbable that the proceedings will ever reach the lands themselves. And before the court should proceed, it
    ought to be satified that in all probability a cloud will be created upon the real estate.
    Its preventive jurisdiction will not be exercised until it is apparent that a cloud must necessarily arise from the illegal act.— 5 Paige 493 ; 6 Id. 262.

      A mere lien which the very proceedings enjoined are adapted to remove, is not a cloud which will properly call for equitable interposition.
    If the bill is to be regarded as one filed to prevent a trespass on personal property, it is sufficient to say that there is no averment that the complainants have any of that class, ,and if there was, it would not make a case for a court of equity. — 2 Mich. 560.
    The circumstances must be very peculiar to warrant the court in interfering when personal property only is to be affected. —13 Mich. 540.
    By this injunction the whole state aqd county tax of these complainants is withheld from the jDublic treasury. Certainly there should be something very peculiar to justify such hindrance to the collection of the revenue of the state.
   Campbell J.

Complainants, twenty-nine in number, filed their bill to restrain the collection of the taxes for the year 1865, levied against them on the assessment roll of the town of Waverly, in Yan Burén county. They aver that they are all tax payers and land owners in the township, and set forth the amount which is assessed upon each of them on the assessment roll, which is alleged to be in the usual form, including taxes for state, county and town purposes. One of the complainants avers his aggregate taxes to exceed $100. The rest vary from $6.45 to $85.98. Their property is not described or valued, and the bill does not show what proportion of the taxes was for township purposes. The illegal taxes complained of are certain taxes assessed to refund bounties, which are included in the taxes for township purposes. The bill prays an injunction to prevent the collection of all the taxes on-the roll in the hands of the town treasurer. An injunction was allowed on condition that complainants respectively pay into court the amounts assessed against them respectively, which was done accordingly.

Defendants demurred for misjoinder of complainants, and for want of equity. The demurrer was sustained, and the bill dismissed. The court also ordered the money deposited to be paid over to the town treasurer.

We think the demurrer was well taken. If it should be assumed that complainants can thus join their several causes of individual grievance in one bill, they have entirely failed to point out any tangible grievance of such a specific nature as to enable a court to relieve it.. The bill cannot be maintained to remove a cloud upon land without showing what the land is, and there is no averment giving either description, quantity or value. It is not asserted that any part of the tax is illegal except a part of the town tax. As the state and county taxes are separately charged, it was, at least, possible to distinguish the town taxes from the rest, whether the bounty tax was or was not put by itself. No illegality in a town tax could, before the land should be actually sold, affect the other taxes. And complainants, if entitled to relief at all, could only be relieved against the tax which included the illegal charge. It was, therefore, incumbent on them to show distinctly the grievance to be remedied. The bill must be certain enough to furnish the means of giving the precise relief needed. No court can give assistance to a party who does not show what he is entitled to demand. The bill asks relief against what must be presumed to be legal as well as illegal taxes, and the court has no means of ascertaining one from the o.ther, while complainants could have given tho means, but have neglected to do so.

Without passing upon the several other questions discussed, we think the demurrer properly sustained for want of equity, and the decree thus far must be affirmed, with costs.

We think, however, that the court could not properly direct the money deposited to be paid over by the register to the township treasurer. The tax for bounty purposes was manifestly illegal, and even if it were not so, there had been no issue or hearing which could enable the court to determine that the parties had no defense against the enforcement of collection in whole or in part. The dismissal of this bill could not affect any legal defenses which any of them might set up against the levy of any of the taxes. And the case being out of court, there is no way now to reach the facts, as there is nothing on record to show the true amount of lawful charges. This portion of the decree must be vacated. But as the decree is affirmed on the merits of the cause, and this has formed no main part of the controversy, the defendants are entitled to their costs in this court.

Christiancy J. and Cooley J. concurred.

Martin Ch. J. did not sit.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Henry Warren v. Hiram F. Cole and another.

      Repudiation of contract, for fraud: Action for damages. Where a contract has been repudiated on the ground of fraud, the party defrauded may bring an action for the damages sustained.

      Actions of tort: Rule of damages. In an action of tort, where, from the circumstances, no certain pecuniary standard can be obtained by which to ascertain the amount of damages, the jury have a wide range of discretion, and no absolute rule can be laid down; but where, from the nature of the case, a rule can be discovered by which adequate compensation can be given, the rule should be applied to actions of tort, as well as upon contract. Held, further, that the expenses of litigation can not be considered in estimating the damages.

      Patent right: Construction of deed. A agreed to sell to B an interest in two inventions, for the former of which only a patent had been issued. A deed was duly executed by A, conveying his interest in said patent to B. Subsequently, A received a patent for the second invention. Held, that inasmuch as the conveyance from A referred only to the description in the first patent, it could not be construed so as to include the invention in the second.

      Heard January 12th.

      Decided April 3d.

    Error to Lenawee Circuit.
    This was an action to recover damages for an alleged deceit practiced by plaintiff in error upon defendant in error, in the sale of two patent rights for the making of soap. Judgment was rendered for the plaintiff below. The facts are sufficiently stated in the opinion.
    The following are the assignments of error, covered by the opinion:
    1. That the court erred in charging and instructing the jury that if the fraud was proved on the part of the defendant to be a gross one or aggravated, they will be justified in imposing exemplary or punitive damages.
    2. That the court erred in charging and instructing the jury that they might also, in estimating the plaintiif’s damages, take into consideration his expenses of carrying on and prosecuting his suit, including counsel fees.
    3. That the court erred in refusing to instruct and charge the jury, as requested by the defendant’s counsel, that if the jury believed from the evidence that the plaintiffs had disaffirmed the contract, that then the plaintiffs could not recover in this form of action; and also erred in charging and instructing the jury that unless such disaffirmance was acceded to or acted upon by the defendant, or the consideration money restored on request, any act of disaffirmance in evidence in this case, on the part of the plaintiffs, would not preclude the plaintiffs from maintaining this action.
    4. That the court erred in refusing to charge and instruct the jury, as requested by the counsel for the defendant, that the conveyance of the 17th October, 1863, conveyed to the plaintiffs all the rights of the defendant to his patent of February 9th, 1864, to the washing and jelly soap for the county of Cuyahoga, and invested the plaintiffs with all the rights they would have had if the patent had been granted before the sale to the plaintiffs.

      G. A. Stacy, for plaintiff in error.
    1. In all cases of contract where fraud is charged or has been committed, the contract is voidable, at the election of the injured party. — 1 Doug. 330.

      a. If the defrauded party elects to affirm the contract, he is bound by it in all respects. If he elects to rescind it, from that moment it becomes void, and neither party can maintain any rights under it. — 4 Mich. 508 ; 2 Parsons on Gon. 780.

      b. The party defrauded must rescind as soon as circumstances permit after the discovery of the fraud. — 1 Benio, 69; 24 Wend. 74.

      c. Generally an offer to return the property received is as effectual as actually returning it. — 5 Blade. 225; 9 Porter, 420.

      d. When instead of paying money for an article, one delivers some other article ;,in exchange, if the one of whom he purchases be guilty of fraud, he may return, or offer to return, the whole consideration which he received, and maintain trover for the chattels he gave; otherwise, his remedy is by action on the case for the deceit, and not trover for the consideration. — 4 Mass. 502; 3 PJsp. 83; Sedg. on Bam. 562; 3 Hill, 333; 8 Barb. 9, 18; 1 Hill, 484; 4 Benio, 584.

    2. The court erred in charging the jury that they might, in addition to punitive or exemplary damages, also; in estimating the plaintiff’s damages, take into consideration his expenses of carrying on and prosecuting his suit, including counsel fees.
    In the theory of the law, the taxed costs are full indemnity for the expenses of a suit. —13 M. & W. 47; 5 Wend. 535; 23 Id. 425; 11 Pide. 378; 4 Blade. 277; 13 How. 363.
    This erroneous direction in cases where, like this, the jury had the right to give compensatory damages, will require the court to reverse the judgment, as they can not assume that the intention of the jury was to give vindictive damages rather than compensatory. — Sedg. on Bam. 529, 563; 3 Sandf. 628; 8 Wend. 505.

      8. The court erred in charging the jury that in this case the plaintiff could recover punitory or vindictive damages.
    If the defendant was guilty, he was also liable' to a criminal prosecution and punishment, and if damages as a punishment, over and above the actual damages sustained could be given by the jury in the civil action, then the defendant might be twice punished for the same offense.— 4 Cush. 2Y3; 4 Denio, 461; 4 Taunt. 355; 21 Tide. 378; 2 Green. JSfo. Title, Damages.

    4. The sale of the patent right and the conveyance of lYth October, 1863, we claim conveyed not only all the right to the patent then issued, but to the patent for washing soap issued February 9, 1864; it contains a warranty, and, by force of the warranty, conveys not only the right he had obtained under the patent of 1861, but also all he acquired under the patent of 1864.
    5. The charge of the court upon the rights acquired by the plaintiffs by the sale, not only misled the jury upon that point, but also ignored the testimony tending to show an offer in the spring of 1864, by Warren, to convey to plaintiffs the right for Cuyahoga county, to the patent of July 9, 1864.

      A. D. Millerd, for defendant in error.
    It is settled by the verdict of the jury, that the defendant (below) by means of a false and fraudulent representation to the plaintiffs, that he had a patent for two hinds of soap, when he had a patent for but one, induced them to purchase the right for the county of Cuyahoga, and to pay him therefor the sum of fifteen hundred dollars.
    Upon the discovery of the fraud, the plaintiffs (below) offered to re-convey to him, and demanded of him to restore the purchase price which he had obtained from them. This he refused, and this action was brought in the court below to recover damages for the deceit.
    1. Fraud or deceit, accompanied with damages, is a good ground of action.— 2 Sill, on Torts, 146.
    'It is no objection to the plaintiffs’ right of recovery that they repudiated the contract, on the discovery of the fraud.

      If they had failed to do this, it might have been construed to be a waiver of the fraud, and an acquiescence in the performance of the contract by the defendant. — 2 Kent's Com. (3(# Kcl.) 480.
    It has been made a question whether a purchaser did not waive his right to damages by acting in affirmance of the contract after discovering the fraud, though the courts have decided that he did not.— 1 Kill, 484; 2 Kill, on Torts, 150.
    But when was it ever decided, or even suggested, before, that he waived it by disaffirming the contract?
    It may be true that we could not sue upon the contract, after repudiating it. A party can not both affirm and disaffirm a contract. But this action is not upon the contract, but for the fraud.
    It is settled, too, that a vendor may on discovering the. fraud and returning or offering to return what he has received, recover back what he has paid. But it does not follow that this is his only remedy. He has two remedies. He may either recover back the whole consideration that he has paid, in an action for money had and received, or may bring his action for the fraud and recover the damages.— 4 Wend. 488; 4 Mass. 502; 1 Doug. 330, 347.
    In the former case he must first return or offer to return what he has received; in the latter it is decided that this is not a necessary pre-requisite. It may or may not be done. In the former case the party, if he recovers anything, recovers specifically the consideration paid — in the latter he recovers his damages, which may or may not be the full amount of the consideration,
    2. There was no error in the charge of the court as to the rule of damages.
    The court charged that the measure of damages would be the difference in value between the right acquired by the plaintiffs by the purchase, and what would have been the value of the right or rights as they were fraudulently represented to he by the defendant.
    This was in accordance with the request of the defendant’s counsel, and no exception was taken to it by either party.
    He also charged that if the fraud was a gross one, or aggravated, the jury would be justified in imposing exemplary or punitive damages, and might take into consideration the plaintiff’s expenses of carrying on the suit, including counsel fees. ‘

    Exemplary damages may be given in a case of gross or aggravated fraud. — Sedg. on Dam. (3d Ed.) 36, 59, 476-492, 665-672; 4 Strobh. 34; 10 JST. H. 130; 29 Conn. 496; 11 Mich. 105, 548.
    And in such a case the jury may properly take into consideration the probable expense of the litigation, including counsel fees. — Sedg. on Dam. 99, 100, 658; 15 Conn. 225; 24 Id. 392; 1 Baldwin, 138; 17 Ala. 833.
    3. There was no error in the charge of the court upon the request of the defendant (below) as to the effect of the deed of 17th October, 1863, conveying the right for Cuyahoga county to the plaintiffs: at least none of which the plaintiffs in error can complain.
    This deed was made before the patent for the washing soap was issued. There was not even an application for a patent on that then pending. The original application for that had been withdrawn, and the subsequent one, on which the patent finally issued, was not filed until after the date of the deed.
    The deed by its terms is a conveyance of the right for Cuyahoga county in the patent already granted, which was for the hard soap, and makes no reference to the washing soap.
    How it could operate to convey title to another improvement, and to a patent subsequently applied for and obtained, to which no allusion is made in it, we do not understand.
    The fact that the grantor fraudulently misrepresented the extent of the right conveyed, as including the washing soap, for which he then had no title, would not make the deed ipso facto operate as a conveyance of the right subsequently acquired, though it might be the ground upon which a court of equity would compel a further conveyance.
   Campbell J.

Suit was brought in the court below by the defendants in error, to recover damages for deceit alleged to have been practised upon them in the sale of a local interest under a patent right. They claimed that they were led to purchase by the representation that the patent issued by the United States to Warren covered two different kinds of soap, when in fact it only embraced one. It seems that Warren filed a claim and specifications for the two sorts, but, under the law, only one could be included in a single patent, and therefore one was left out. After the sale to Cole and Arnold of a territorial right under the patent, which they aver was said to be for both inventions, a second patent was issued covering the claim omitted in the former one. There was evidence tending to show a repudiation of the contract by defendants in error on the discovery that the patent did not include all it was supposed to, and there was also contradictory evidence concerning the readiness of Warren to make further assurances to remedy the deficiency in the original transfer; but this last matter does not become important, as no legal question is raised upon it for review. The jury having rendered a verdict for damages against Warren, the case comes before us on objections to the various rulings of the Circuit Judge.

Several exceptions are based upon the refusal of the Circuit Court to charge that if defendants in error had disaffirmed the contract, this action would not lie, and to his charges concerning what would or would not amount to a disaffirmance, if such disaffirmance would bar the suit.

The only intelligible ground for the main objection is the claim that this suit amounts to an affirmance, and that a previous election to disaffirm can not be receded from. We do not so understand the pleadings. This is not, as claimed by Warren, a suit to enforce a contract. On the contrary it is an action of tort, to recover damages for a deceit and imposition claimed to have been practised on Cole and Arnold, whereby they were fraudulently induced to make an agreement they would not have made had they known the truth. This being the character of the suit, it can not be seriously contended that a person repudiating a contract for fraud can not sue for redress, if he has suffered damage from it. We think the plaintiff in error has mistaken the nature of this action, and that the objection was not well founded. The minor rulings connected with this theory become unimportant, and were in fact more favorable to plaintiff in error than to the defendants, upon the proper theory of the prosecution.

The court below also refused to charge that the second patent operated to confirm to defendants in error the title which they originally supposed they were buying. Had the conveyance covered, or purported to cover, the subject of the second patent (as the court below seems to have assumed it did,) this question would have been quite material, inasmuch as Warren unquestionably owned the exclusive right as inventor, and had not abandoned it to the public. But the deed will not bear such a construction. It does not purport to convey an interest in anything but the invention identified as described in the letters patent of September 3d, 1861, and can not, therefore, have any bearing whatever upon the invention not included in that patent. We are not required, therefore, to decide, and we do not express any opinion upon, the sufficiency of the reasons given for refusing to give retroactive effect to the second patent, so long as the decision itself was right. The deed does not purport to give rights in the second invention, and could work no estoppel concerning it or concerning the subsequent patent.

The remaining exceptions relate to the rule of damages. Objection is made that the court below allowed the jury to give vindictive damages, and to include in the damages the expenses of litigation. We think the instructions were erroneous on both points.

Without considering the disputed question whether damages in a civil action can ever be properly based on the theory of punishment instead of redress, we recognize fully the fact that there are many wrongful acts which are committed under circumstances which preclude the possibility of reducing the grievance to any reasonably certain pecuniary standard. In many cases, it can not be said that there has been any mere pecuniary damage whatever. But, inasmuch as the injured party should have some redress, and the law can only give that redress by pecuniary damages, it has been found necessary to leave the amount, in the absence of any other standard, to the common sense of a jury; and anything which, in their opinion, is not out of proportion to the more or less aggravated character of the grievance, is allowed to stand as the rule of damages; not because it is an accurate measure of redress, but because no better one can be attained. And, accordingly, such damages will stand, unless it is plain that the jury have gone very much astray in their action. Such damages have, in many cases, the effect of a heavy punishment; but whether the law properly regards them in that light we do not find it necessary to determine. For-there\ are many wrongful injuries where the grievance created is purely pecuniary in its nature, and is susceptible of full and definite money compensation. When this is the case, we do not conceive it admissible to abandon a certain rule, which will do complete justice, for an uncertain one, that can hardly fail to do injustice. It was remarked by my brother Christiancy, in Allison v. Chandler, 11 Mich. R. p. 555, that “ where, from the nature and circumstances of the case, a rule can be discovered by which adequate compensation can be accurately measured, the rule should be applied in actions of tort, as well as in those upon contract.” We think the present case is one of that kind. The parties have been damnified, if at all, by not getting the property they expected to get. Their position is, in point of damage, just Avhat it would have been, had Warren agreed to convey what they bargained for, and wantonly broken his agreement. The same redress which would compensate the breach of such a contract, will compensate the deceit in not giving them what they supposed they were buying in the transaction complained of. We think the court erred in permitting the jury to adopt any other measure of damages.

Nor do we think the jury were properly permitted to consider the expenses of litigation in the present suit. It was held in Hatch v. Hart, 2 Mich. R. 289, that such expenses could not be considered in estimating damages for detention in replevin suits, and there is no distinction in principle between such cases and other actions for torts. Such we consider the better doctrine on i authority, and also the more reasonable. We are not disposed to disturb the rule so laid down.

For these reasons, we think there is error' apparent on the record upon the rulings on the estimate of damages.

The judgment below must be reversed, with costs, and a new trial granted.

Cooley J. and Christiancy J. concurred.

Martin Ch. J. did not sit in this case.


author: Christiancy J.

text:
    John O’Neil v. The People.

      CHminal Statutes: Constmction. Subdivision 2, of section 5947, of the Compiled Laws, provides that if an offense attempted to be committed u be punishable by imprisonment for five years or more, the person convicted of such attempt shall be punishable by imprisonment, etc., not more than three years, etc.”
    In subdivision three, providing for the punishment of the attempt to commit a crime of lesser grade, the following provision is made: u But in no case shall the punishment by imprisonment exceed one-half of the greatest punishment which might have been inflicted, if the offense so attempted had been committed.”
    The defendant in this case was convicted of an attempt to commit larceny from the person, the punishment of which offense — 2 Comp. L. §5761 —was imprisonment for a period not exceeding five years. He was sentenced to be imprisoned for three years in the State Prison. Held, that under the above statute, the proviso in subdivision three applied to all the different grades mentioned in the second and third subdivisions to said section. The sentence was held void, and the prisoner was discharged.

      Heard January 12th.

      Decided April 3d.

    Error to Kalamazoo Circuit.
    This was an information for an attempt to commit larceny from the person.
    The plaintiff in error was convicted for an attempt to commit the crime of larceny, and sentenced to be confined at hard labor in the State Prison for three years.
    It was assigned for error that the prisoner could not be sentenced for a period exceeding two and one-half years.
    The case turns upon a construction of tbe statute.

      D. JB. and H. M. Dicffield, for plaintiff in error.
    1. The statute defining the offense of larceny from the person, and prescribing its penalty (five years) is found in 2 Comp. L. § 5761.
    There is no statute specifically prescribing the punishment of an attempt to commit the crime of larceny from the person.

      The only statute regulating the punishment for an attempt to commit a crime prohibited by law is found in 2 Comp. B. § 5947, the third subdivision of which reads as follows: “ But in no case shall the punishment by imprisonment exceed one-half of the greatest punishment, which might have been inflicted if the offense so attempted had been committed.”
    The sentence actually passed was imprisonment in the State Prison for three years.
    We claim "that under this statute the greatest punishment that could have been imposed on the plaintiff in error by the court, was two years and six months in the State Prison.
    2. It being established then that the plaintiff in error was sentenced by the court for a longer period than is allowed by law, the judgment must be reversed and the prisoner discharged. —13 Mich. 365 ; 2 Mete. 419; 8 Barn, and Cress. 395 ; 7 Adolph, and Milis, 58.

      W. B. Stoughton, Attorney General, for the People.
    The only question presented is, whether the court had power, upon a conviction for an offense which, if committed, would be punishable by five years in 'the State Prison, to sentence the person so convicted to the State Prison for a period of three years.
    Section 5761 of the Comp. Laws makes the punishment for larceny, by stealing from the person, five years’ imprisonment in the State Prison, or one year in the county jail.
    The second subdivision of section 5947 of the Comp. Laws is as follows: “ If the offense so attempted to be committed is punishable by imprisonment in the State Prison for life, or for five years or more, the person convicted of such attempt shall be punished' by imprisonment in the State Prison not more than three years, or in the county jail not more than one year.

      The class of cases, and the punishment awarded, are-here clearly and fully set forth. There is no uncertainty, and no reference is made to any other or different punishment for such cases. The sentence imposed by the court below is in accordance with this provision, and fully authorized by its express terms.
    But it is claimed on the part of the plaintiff in error, that this provision is limited by the last clause of the third subdivision of this section. It is respectfully submitted that this construction can not prevail.
    1. The court will so construe a statute as to give effect, if possible, to every clause and section of it. — 1 Bishop’s Or. I. §66; 5 Mich. 114; Bwcirris on Stat. 668; 22 Pick. 571.
    The natural and reasonable construction of this section will confine the limiting clause to the last subdivision, and to that alone. In case the offense attempted to be committed is punishable by a less term than five years in the State Prison, the attempt can only be punished by imprisonment in the county jail, or by a fine of three hundred dollars. The attempt, in such a case, is not a felony, but a misdemeanor.— Comp. B. § 5955.
    The only “punishment by imprisonment” provided for in the third subdivision is in the county jail; and the words “ the punishment by imprisonment,” in the last clause, would seem, naturally and grammatically, to relate to the same words used in the clause immediately preceding, rather than to another and different kind of punishment provided for a felony in a former subdivision.— 1 Bishop’s Or. B. §68; B>warris on Stat. 573.
    3. If we consider the object designed to be accomplished by this limiting clause, it will very clearly appear that it was intended by the legislature to relate only to the third subdivision. Without this limitation the punishment provided by the third subdivision would be unjust and unreasonable. All attempts to commit offenses which, if actually committed, would incur a less penalty than five 'years in the state prison, are made punishable by one year’s imprisonment in the county jail, or a fine of three hundred dollars.
    But there is a large class of cases where the offense, if consummated, can only be punished by the same, or even a less penalty. Hence the necessity and reasonableness of the clause in question, when confined to the third subdivision. It would evidently be unjust to impose the same or a greater punishment upon an attempt, than upon the actual commission of an offense. Section 5794, of the Comp. Laws, for instance, provides that certain willful and malicious acts shall be punished by imprisonment in the county jail not exceeding six months, or a fine not exceeding fifty dollars, or both. The attempt to commit such acts would doubtless be within this statute, but it would be strange, indeed, if the attempt could be punished by one year’s imprisonment, etc., while a less punishment would attach to the offense if actually committed. Such, however, would be the
    effect but for the limitation referred to. — 1 Bishop's Or. Baw, § 61; 13 Mich. 44.
    4. The clause limiting the punishment for an attempt to one-half of the imprisonment imposed upon the offense if committed, can not apply to the first subdivision of this section. This only embraces offenses, if such there be, which, if committed, would be punishable with death. Nor can it apply to that class of cases mentioned in the second subdivision, which, if committed, would be punishable by imprisonment in the state prison for life. Such a construction would be wholly unreasonable, and lead to a degree of uncertainty never contemplated by the legislature. The court will so construe a statute as to give it a reasonable effect. — 8 PicJc. 370.
    And it seems very clear that the same punishment is provided for all attempts to commit an offense, whenever the actual commission would be punishable by imprisonment in the state prison for five years, or for life.
   Christiancy J.

The plaintiff in error was convicted of an attempt to commit larceny from the person of one Rachael Thompson, and sentenced to be confined at hard labor in the state prison for the period of three years; and the question is, whether this period of imprisonment does not exceed that which the statute has prescribed for the offense of which he was convicted.

The punishment for the completed offense of larceny from the person, as fixed by the statute, is “imprisonment in the state prison not more than five years, or by imprisonment in the county jail not more than one year.” — 2 Comp. L. § 5761. Section 11 of chapter 192, Compiled Laws, for the punishment of attempts to commit crimes, is in the following words:

“Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commis^on of such offense, but shall fail in the perpetration, or shall be intercepted or ' prevented in the execution of the same, when no ex]iress provision is made by law for the punishment of such attempt, shall be punished as follows:

1. If the offense attempted to be committed is such as is punishable with death, the person convicted of such attempt shall be punished by imprisonment in the state prison not more than ten years.

2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or,for five years or more, the person convicted of such attempt shall be punished by imprisonment in the state prison not more than three years, or in the county jail not more than one year.

3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than five years, or by imprisonment in the county jail, or by fine, the offender convicted of such attempt shall be punished by imprisonment in the county jail not more than one yeai, or by fine not exceeding three hundred dollars; bxxt in no case shall the punishment by imprisonment exceed one-half of the greatest punishment which might have been inflicted if the offense so attempted had been committed.”

The only question is, whether the 'last provision in the third subdivision (limiting the puxxishment by imprisonment to one-half the greatest punishment which might have been inflicted for the offense if completed), applies as well to the offenses pi’ovided for in the second, as to those in the third subdivision.

We see no reason to doubt that such was the intention of the statute. The reasons for limiting the period of imprisonment for an attempt to commit an offense, to one-half that provided for the consummated offense, are, in our view, equally strong, in the cases provided for in the second subdivision as for applying the same limitation to those mentioned in the third, and this being so, there should be some plain reason furnished by the language of the statute, to confine the operation of the clause to the third subdivision only.

We can discover nothing in the language of the provision or in the punctuation to thus confine it. On the other hand, the prohibition is general, and all the terms used apply equally well to both subdivisions, “but in no case shall the punishment by imprisonment exceed,” etc. Had it been the intention to confine the operation of the clause to the cases of “imprisonment” mentioned in the third subdivision, we should naturally have expected some indication of the intention thus to limit it, such as “in no case mentioned in this subdivision,” or something of similar import.

If the attention of the judge was called to the statute, he may have been misled by inferring from the latter clause of the second subdivision, that this subdivision was complete in itself, and had fixed a different limit for the ratio of punishment between an attempt and a completed offense, from that fixed by the third. But it will be seen that without this limitation found in the third subdivision, the second would fix the same limitation for an attempt to commit an offense punishable by imprisonment for life as for one punishable with but five years; and for the purpose of approximating a ratio in the various cases, this general limitation of subdivision two was made subject to the further limitation' at the close of subdivision three.

We are, therefore, of opinion that the imprisonment for the offense of which the defendant was convicted, is limited to two years and a half. The sentence exceeded this limit,, and is therefore void for the whole. — Elliott v. The People, 13 Mich. 365. The judgment must be reversed, and the defendant discharged.

Campbell and Cooley JJ. concurred.

Martin Ch. J. did not sit in this case.


author: Cooley J.

text:
    Eben Smith, Jr., Administrator of H. W. Ellsworth v. Robert Jones.

      Attachment: Estate of deceased persons: Commissioners. Where in the prosecution of a claim a lien has been acquired by attachment against a defendant in his life time, the plaintiff may, on obtaining judgment, have execution against the property so attached, whether commissioners have been appointed, or not, to hoar claims against the estate of the deceased person. — 2 Comp. L. § 2974.

      Heard April 2d.

      Decided April 3d.

      Certiorari to Kent Circuit.
    This writ was brought to review the proceedings of the Circuit Court for Kent Circuit, in granting an order for the issuing of an execution against an administrator. The facts are stated in the opinion.
    The following are the errors assigned:
    1. For that the said judgment was certified to the Probate Court, under section 2931 of the compiled laws.
    2. For that said judgment was presented to the commissioners appointed by the Probate Court of Kent county, in said estate, and allowed by them.
    3. Because the amount of said judgment must be paid in the same manner as other claims duly allowed against the estate of said deceased.
    4. That by the death of the defendant in the original suit, and the subsequent proceedings, the plaintiff’s specific lien, by virtue of such writ of attachment, was lost, and he is not therefore entitled to enforce it, to the exclusion of the other creditors; and,
    5. Because such judgment is under the control and disposition of the Probate Court, and the plaintiff can not • have execution in the Circuit Court of the county of Kent.

      Miller and Willson, for plaintiff
    1. A lien was created by the levy and subsequent proceedings, 2 Com/p. L. § 4'T51, which was not lost by the dehtli of original defendant.
    2. The action was prosecuted to final judgment, after the death of the original defendant.— 2 Comp. L. §2931.
    3. The time was fixed by the Probate Court for the payment of debts by the administrator.— 2 Comp. L. §2946.
    4. The right to issue execution against the estate of the deceased was suspended by the appointment of commissioners, until the expiration of the time limited by the court for the payment of debts.— 2 Comp. L. §2930. See, also, §§ 2974-5.

      . 5. Plaintiff claims that a lien having been created by the levy and' subsequent proceedings, and the time limited by the Probate Court for*the payment of debts having expired, and the judgment being still unpaid, he is entitled to an execution on his judgment in the regular form.— 2 Comp. L. §§4763-4.
    The inference from the language of the statute, (§§ 2930, 2974-5) is, that the lien of the attachment is not destroyed, but only suspended during the time limited for the payment of debts.
    Justice requires that plaintiff be allowed to enforce his lien by an execution, and not be compelled to resort to any other proceeding for that purpose.

      Ebm Smith, Jr., for defendant.
    1. The plaintiff has no specific lien on the lands levied on, under his attachment.
    The judgment in the cause was certified to the Probate Court, under section 2931 of the compiled laws, and presented to the commissioners appointed on said estate and allowed by them; and the amount thereof must be paid in the same manner as other claims duly allowed against the estate.— Gomp. J. §2931.
    2. The plaintiff is not entitled to have an execution issue on his judgment.
    No execution shall issue against the administrator, etc., during the time allowed him for the payment of debts, except in the case provided for in section 2974; Comp. L. § 2975.
    Article No. 190, laws 1850, amended said section 2974, by inserting between the words “omitted” and “no,” the words, “the Judge of Probate shall perform the duties devolving upon such commissioners by law,” and thus provided against any failure in allowance of claims.
    The section before amendment provided that “if the appointment of commissioners to allow claims should in any case be omitted, no person having any contingent or other lawful claim against a deceased person should thereby, (i. e. by any failure to appoint commissioners, etc.,) be prevented from prosecuting the same against the executor, etc., as provided by law, and in such case (i. e. in case the appointment of commissioners to allow claims, should in any case be omitted,) the claimant having lien by attachment previous to his death, may, on obtaining judgment, have execution, etc.”
    The words, as provided by law in the section, refer to the ordinary methods of prosecuting claims to judgment.
    The plaintiff in this case having presented his claim to commissioners appointed by the Probate Court, and the same having been allowed, it must be paid in the same manner as other claims duly allowed against the estate. It is under the control and disposition of the Probate Court, and the plaintiff can not have execution in this court, even though the time limited by the Probate Court for payment of debts, has passed and not been extended.
    The clerk of this court properly refused to issue any process on said judgment.
   Cooley J.

The defendant in error brought suit in the court below against Ellsworth by attachment, which was returned not personally served. Ellsworth died pending the suit, and the cause afterwards proceeded to judgment against his administrator. The judgment not being satisfied, defendant applied to the court below for execution, which was awarded to him. The administrator thereupon brings the proceedings to this court to obtain a reversal of the order for execution. The question is solely one of statutory construction.

The statutes of 1846 — Oh. 19, §16 — provide that all actions pending against a person at the time of his death, may, if the cause of action survives, be prosecuted to final judgment, and if judgment is rendered against the estate, it shall be certified to the Probate Court, to be paid as other claims duly allowed against the estate.

Other sections provide for commissioners in the Probate Court to audit and allow claims; and section fifty-nine, before amendment, was as follows:

“If the appointment of commissioners to allow claims shall in any case be omitted, no person, having any contingent or other lawful claim against a deceased person, shall thereby be prevented from prosecuting the same against the executor, administrator, heirs, devisees or legatees, as provided by law, and in such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death, may, on obtaining judgment, have execution against such real or personal estate.”

This section is certainly very awkwardly drawn; the first reading might leave the impression that liens by attachment were only preserved in the cases where the appointment of commissioners had been neglected, so that the creditor was compelled to resort to suit. But as no attachment could be obtained after the party’s death, to give the section ■ this construction would nullify this portion of it; as demands already in suit did not go before the commissioners in any case, unless the plaintiff saw fit to withdraw his suit for the purpose. We think it the evident intent of this section to save the lien by attachment in any case where the party proceeded in his attachment suit to judgment; and that the words “in such case,” here employed, refer to the case of the party prosecuting his demand to judgment against the executor, etc., and not to the case of failure to appoint commissioners. We are not warranted in giving the statute a construction which would render any part of it nugatory, if any reasonable construction can be put upon it which would give effect to the whole.

The legislature of 1850 must have understood the section as we do. They amended it by providing that if no commissioners were appointed, the judge of probate should perform their duties. The remainder of the section then provided that “no person, having any contingent or other lawful claim against a deceased person, shall- thereby be prevented from prosecuting the same against the executor,” etc., “ as provided by law, and in • such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death, may, on obtaining judgment, have execution against such real or personal estate.” Now the cases provided by law, in which the creditor may prosecute his demand to judgment, are those in which suit was commenced before his death; and in these, if lien had been acquired by attachment, the section as it now stands clearly saves it.

The order of the Circuit Court is correct, and should be affirmed.

Campbell and Christiancy JJ. concurred.

Martin Ch. J. did not sit.


text:
    George K. Johnson v. John Frisbie.

      Negotiable instmment: Hate of exchange. A promissory note made in Michigan, and payable “•with, current rate of exchange on New York,” is a negotiable instrument. — Smith v. Kendall, 9 Mich. 241.

      Heard April 2d.

      Decided April 3d.
    •Error to Wayne Circuit.
    This was an action pf assumpsit, brought by the • plaintiff as first indorsee of two promissory notes ’ against ' the defendant as indorser of the same.

      The declaration, consisted of the common money counts at length, with a notice subjoined that two promissory notes, of which copies were also subjoined, would be given in evidence for the plaintiff, on the trial, under the money counts.
    The defendant demanded a bill of particulars, and the plaintiff served upon him the following:
    “Sir — Please to take notice that two certain notes, of which the following are copies, are a bill of particulars of the plaintiff’s demand in this cause, and for the recovery of the amount due on which this action is’ brought, to wit:
    Detroit, 29th Mat, 1860.
    $4,196.67.
    On the 10th of October next after date, I promise to pay to y the order of Geo. E. Johnson, four thousand one hundred and - ninety-six dollars and sixty-seven cents, with current rate of exchange on New York, at the hanking office of W.-A. Butler & Co. ,

    N. P. STEWART.
    Value received.
    Indorsed, “Geo. K. Johnson.’
    Detroit, 29th Mat, 1860.
    $4,196.67.
    On the 10th of Ootober next after date, I promise to pay to the order of Geo. E. Johnson, four thousand one hundred and ninety-six dollars and sixty- seven cents, with current rate of exchange on New York, at the banking office of ~W. A. Butler & Co.
    N. P. STEWART.
    Value received.
    Indorsed, “Geo. K. Johnson.”
    The notes were duly protested.
    [The plea was the general issue.
    the trial, the defendant’s counsel insisted -that the notes were not negotiable promissory notes for the payment of a sum certain, without contingency, upon ' their respective faces, but that they-provided for the payment of exchange on New York, which was a fluctuating item, to be fixed by extrinsic proof. ; He therefore claimed that they were not admissible in evidence under the money counts; and further, that they were not evidence under the pleadings of any liability of the defendant to the plaintiff.
    The' court admitted the notes in evidence, against the defendant’s objection, and the defendant’s counsel excepted thereto.
    The plaintiff’s counsel then proved that there was due upon the said notes the sum of $ll,524.36f anti rested hincase. , -
    ( The defendant’s counsel then proved, that at the date and at the maturity of the moíes' the „ maker lived in Detroit, Michigan; that the indorser- lived at Grand Rapids, Michigan, and spent much time and had' his principal business in Detroit; and that the banking office of Wm. A. Butler & Co. was at Detroit.
    He further proved that the rate of exchange between New York and Detroit was fluctuating; that since the giving of the notes to the time of trial it varied from one'-eighth to-three-fourths of one per cent; and that at other times its variations had been greater. l___The case was submitted to the court by the respective counsel.
    On 20th March, 1866, the court, without a special written finding of facts, decided' generally in favor of the'plaintiff, and ordered judgment for him for $11,580; being for 'the amount found due on the trial and interest subsequently. ^

      T. Romeyn, for plaintiff.
    1. If these notes be not, by their terms, negotiable notes, within the meaning of the Law Merchant, the defendant, on the pleadings and evidence in this case, is not liable.

      a. On general principles, and according to the weight of adjudged cases, an indorsement, by the payee of a note, without negotiable words, does not render the indorser liable. — 1 American Lead. Gas. 322 to 325, and eases there cited.

    b.None of the cases allow a recovery on the indorsement merely, according to its face, without additional evidence and in this form of pleading.
    2. These are not negotiable notes.
    - a: .A note for the payment of money may be a promissory ' note without being a negotiable note. — 1 Gomp. L. 407; -.Ghiity on Lilis, 525 ; 6 Term M. 123; 46 Me. 390.

      b. It is of the essence of a negotiable promissory note that it be'! fo.r the payment of a named, certain sum! — Ghitty on Lilis, 133; Lailey on Lilis, 12; Story on Lilis, §§ 42 and 43;- 2 Mich. 131.

      c. Each of the notes in this case is dated at Detroit, and is payable in Detroit, and the maker lived in Detroit. It is for the payment of a sum certain. If it stopped there, it would have, had all the requisites. of a promissory, negotiable note. But it provides for the payment, in addition to the certain, specified sum,** of / “ current exchange on New York.”

      d. The rate of exchange on New York'is fluctuating, and unaseertainable by calculation. Its exponent is a variable and uncertain quantity. This -we know historically, and by the evidence in this case.
    It matters not whether it be exchange on New York, or San Francisco, or Calcutta. The principle is the same.
    The clerk of the court could not assess damages on .this instrument. It must be submitted to a jury or' the court, on evidence. — 2 McLean, 85, 581.

      e. On principle, this element of uncertainty in amount must be held fatal; and such are the results of the adjudged cases.

      Loioe v. Lliss, 24 Lllinois, is exactly in point. Smith v. Kendall, 9 Mich. 241, is not opposed, if we keep in view the terms of the note. In that case the note was dated in New York, and was .payable in New York. The addition “with current exchange on New York,” was simply superfluous and did not vary the promise to pay a certain sum. It was surplusage, and without legal effect. 29 III 102, 115.
    And so Judge Ohristiancy thought and ruled.
    The cases cited by Judge Manning do not touchy the present question. Pollard’s case, 3 B. & P. 835, was a suit against the maker by the promisee, or payee, and the declaration was special. No> question of negotiability arose.

      Leggett v. Jones, 10 Wis. 34, did not present this question. It went up on a point of pleading, under the code; was between the' immediate parties, and was very imperfectly argued and decided.

      Taylor & Hartwell, for defendant in error.
    A judgment was recovered in the circuit court for Wayne county, against the plaintiff in error as endorser of promissory notes given for sums named therein, “with current rate of exchange on New York.”
    The case is removed to this court by writ of error.
    1. The question presented is, whether the addition of the words “with exchange on New York,” deprives the note of its negotiable character, and whether the plaintiff in error can be held as endorser of such notes.
    This question came fairly before this court in the case of Smith v. Kendall, reported in 9 Mich. 241, and the negotiable character of the paper was sustained.
    The matter of exchange is simply an inbident of pay-for the convenience of the parties. It is for the advantage of commerce that such paper should be negotiable, and it is within the language and spirit of the act. — 10 Wis. 34; 19 Johns. 144; 4 Ala. 32; 1 Barn. & Cress. 193. —

      In caáe of Arnold v. JRoch Stiver Valley Union St. St. Co., 5 SDuer, 207, the court held that an instrument which is, in its terms and form, a negotiable promissory note, does not loose that character, because it also contains a special contract for securing the payment of the money. — Citing 4 Barn, and A. 617; 10 Ad. and SS. 98; 28 SU. L. and SSq. 108; 3 Hill, 389.
    The class of paper which has been held not to be negotiable, contained conditions or provisions which made the note something entirely different from what is known as commercial paper — or which, in addition to containing a promise for the absolute payment of money, contain promises for the performance of other acts, having no reference to, or connection with, the money promised to be paid.
    Eastern merchants generally take their notes payable “with exchange on New York.” It is a usual-custom, and it is intended that goods shall be paid for in New York, or in a manner equivalent to payment in New York. The payment near the home of maker or endorser, is for his convenience.
   Campbell J.

'Johnson was sued as endorser of two promissory notes to his order, dated and payable in Detroit (where the maker resided and the endorser did business), with current rate of exchange on JSTew York. His defense rests entirely xipon the want of negotiable character in such a note, and no other question is presented^

j We consider this point as settled by the decision in Smith v. Kendall, 9 Mich. B. 241, in which it was held by a majority of the court, that making a note payable ^with current exchange did not destroy its negotiability. An attempt has been made to distinguish this case from that, because it is said that note was actually payable in New York, and therefore there could be no exchange on it. The court, however, had no judicial knowledge that the note was so payable, and the case was presented upon an entirely different basis, it being assumed to be payable elsewhere. The decision was based exclusively upon the assumption that such notes were negotiable wherever they might have been made payable, and no other question was entertained.

Regarding the point made in the case before us as precisely covered by that adjudication, we are not called upon to discuss it further, j

The judgment must be affirmed, with costs.

Cooley and Christiancy JJ. concurred.

The Chief Justice did not sit.


author: Christiancy J. Campbell J.

text:
    John Gibbs and another v. Ira Blanchard.

      Statute of Frauds: Joint promise to pay debt of one. "When a sale of goods is upon the joint credit and promise of two, though the property is purchased for, and delivered to hut one of them, the legal effect as between them and the vendor, is a sale to the two jointly. Such a promise is an original one as between them and the promisee, and does not come within the Statute of Frauds.

      Pleading: Goods sold on credit: Common counts. In a suit for the value of goods where the sale was made on credit, to be paid for by a note, the declaration must be special for a refusal to give the paper when the period for which the note was to run is yet unexpired; but after the expiration of such period, the plaintiff may recover upon the common counts.

      Heard January 9th.

      Decided April 3d.

    Error to Kalamazoo Circuit.
    This was an action of assumpsit brought for the value of a horse. ■ The declaration contained a special count setting forth that in consideration that the plaintiff would Sell* the horse to Daily — one of the defendants below— -that " they (the defendants) would deliver their note to plaintiff for the sum of §60, payable in six months; that said horse was delivered to said Daily, but that defendants refused to give their said note or pay for the horse. The common counts were also added.
    A copy of a note for §60, signed by Daily and endorsed by Gibbs, was attached to the declaration.
    Defendants plead the general issue, and gave notice that the promise of said Gibbs to endorse the said note was not in writing, and was, therefore, void. It also appeared in evidence that Gibbs endorsed the said note on Sunday. The note was tendered to the defendant on the trial. Judgment was rendered for plaintiff. The facts and the exceptions to the rulings, and the charge of the court are stated in the opinion.

      M. J. Smiley, for plaintiff in error.
    1. The “undertaking of the defendant Gibbs, at the time of the sale of the mare, and the signing of the note, was collateral, and in aid of the defendant Daily.
    If so, then the defendant Gibbs could only be bound by a contract in writing, and parol evidence of such a contract would be entirely incompetent and inadmissible. Comp. L. § 3183; 1 Greenl. on Ev. §§ 267, 268; 1 K. U. 57; 1 Johns. Ch. 274; 5 East. 10.
    Had the plaintiff declared upon a contract such as he has related in his testimony, and had stated in his declaration that it was not in writing, it would be demurrable, and, if bad upon demurrer, evidence to support it, if objected to, would not be competent to charge defendant Gibbs. — 6 Cow. 346 ; 5 Ilili, 483 ; 28 JBarh. 444 ; 2 Min. 227; 3 Met. Ky. 463.
    The admitted evidence was parol and tended to contradict and vary the note in writing. This -was clearly

      2. The plaintiff below could not recover on the note against the defendant Gibbs, as his indorsement was made on Sunday, and therefore void.— Comp. I. 449, 450; 12 Mich: 378; 2 'Doug. Mich. 73.
    He then sought to recover upon the common counts by delivering up the note. But this he could not do as the note was good as to one defendant. The indorse-' ment only was void. He could not recover against one defendant on the note and against the other upon the common counts.
    If the plaintiff below relied upon the special count in his declaration, it was his duty to first demand of the defendants a note such as was claimed by him, and he should allege and prove that a note was drawn and presented to the defendants and a refusal on their part to sign it. — 6 Cow. 347.
    3. Where goods are sold and delivered to one person for his use, the undertaking of another person in aid' of his liability is void unless in writing, although the collateral undertaking .may have been the principal inducement to the delivery of the goods; and where the whole credit is not given to the person who comes in to answer for another, the promise is collateral and within the Statute of Frauds unless in writing. — 2 Term. 80; 5 Fast, 10; .8 Johns. 29; 18 Pick. 369; 13 Wend. 114, 121; 39 iK JI 259 ; 13 Gray, 613; 1 McCord, 100; Roberts on Frauds, 216; 1 Gill, and J. 260; 22 Me. 395; 4 Yerger, 576 ; 10 Mich. 319; 12 Id. 224; 1 Smith’s Lead. Cas. 325.

      II. F. Severens, for defendant in error.
    The principal questions arising upon the record in this cause, are resolvable into two leading points:
    • First: Was it competent to charge the defendant, Gibbs, in this cause with liability without written evidence? and, Second: Was the plaintiff below estopped by the note from proving the facts, making Gibbs chargeable: said note being repudiated by said Gibbs, as having been signed (or endorsed) by him on Sunday in violation of the statute, and having obtained the ruling of the court, that the note was as to hinf void for that reason?
    1. The evidence in the case tended to show that the defendants bought the horse in question, for the use of Daily, and agreed to become jointly liable therefor, and a promissory note was to be signed and given for the price covering a term of credit; and the charge of the court substantially submitted to the jury whether this state of facts was proven, and instructed them that, if they so find, the statute of frauds would not be available to the defendant, Gibbs.

      a. By section 3183 of Comp. JO., “Every special promise to answer for the debt, default, or misdoings of another person,” is void, unless it be manifested by writing. The promise here intended is one which is distinct from, but accessory and collateral to, such “debt” of another person. The statute can have no application to the case of a person originally and directly liable for.the “debt.” In other words, where the only debt, or obligation in the case, is the very one upon which the party is sought to be charged. The statute contemplates two things, a “debt” of one person, and a “special promise” of another to pay it. Here, the “debt” is that of defendant, Gibbs. There can be no inquiry about the evidence of a “special promise,” for there is no such element here. The liability of Gibbs, is established without it, and the statute is out of the case.
    The statute itself would seem to furnish a plain' answer to the objection of Gibbs.
    5. The terms “original” and “collateral,” though sometimes complained of as not always a safe means of distinction, yet have been employed in almost all the modern cases, as well as in many of the older ones; and as was said by Comstock, Ch. J., 21 JV. Y. 412, 414, were used, the one to mark the obligation of the principal debtor; the other, that of the person who undertook to answer for such debt.— 2 Pars, on Gont. 301-2 (3<i ed.)\ Brown on Frauds, 196, 197, (lsí ed.); 18 Me. 324; 5 Mass. 358; 13 Gray, 613; 15 Vt. 215; 21 Barb. 218; 4 F. & FT. 739; 3 Butcher, 443.
    c. The question whether the defendant is a joint promissor or guarantor, is one of fact to be determined, as such, by the jury from all the circumstances of the case. — 2 Pars, on Gont.; 4 JP. & M. 739; 9 Gal. 328.

      d. It is undisputed that a person who is not to receive the property purchased, may make himself liable Avithout writing, if he undertakes directly for the payment by himself; certainly it can not make any difference whether the person receiving the goods should unite in the promise with him, or some other person should do so. In the last case no one would contend that the case was within the statute. Why should it be so in the other? The promise of the first, is equally to pay the “debt of another,” in the one case as in the other.
    Again, tivo persons buy for the use of both; part of the goods for one, part for the other; the promise of neither Avould be within the statute, and yet upon the principle contended for by Gibbs, it would be a promise to answer for the debt of another. It certainly does not bring the case within the statute, that the goods are bought for one only.

      e. Whether irpon a sale to one only, a promise by a third to sign a note Avith the purchaser for the price, is Avithin the statute of frauds or not, is at least doubtful. Upon principle and the weight of authority it would seem that it is not.— 2 Gar. <& Payne, 249; 1 Bing. N. G. 103; 2 Peters, 170; 5 Hill, 483.

      f. The term of credit having expired, the plaintiff, on tendering back .the note, was entitled to recover upon the indebitatus count. — 1 Mew B. 330; 13 Fast, 98; 3 B. & P. 582; Fill, on Sales, 178 (2d ed.); Ghitty on Gont. 853 (10 Am. ed).

      And the circumstance that the facts were such as to show the plaintiff entitled to recover for goods sold and delivered, has some bearing in determining that the promise was not within the statute, for in cases falling within the statute, a special count would probably be requisite.— 1 Saund. 211, a. b. / 13 Wend. 85.
    2. The defendants having repudiated the note as being void as against Gibbs were not in a position to interpose the note as an estoppel to preclude the plaintiff from showing the facts making Gibbs chargeable for several reasons.

      a. A void instrument can not operate as an estoppel. 12 Mich. 99; 6 Sam. 366; 1 A. S. Marsh. 493; Sprague, 477.

      b. The instrument not being executed by Gibbs, as was contemplated by the parties, was imperfect and never became a valid contract as against Daily. At all events not unless Blanchard should elect so to treat it.
    c. The name of Gibbs having been placed upon the instrument in pursuance of a previous agreement to that effect, and Gibbs not being the payer or owner of the note, he became liable as maker of the note by putting his name on the back of it, as held by many authorities. 31 Me. 536 ; 32 Id. 339 ; 36 Id. 265 ; 44 Id. 433 ; 12 Vt. 219 ; 20 Id. 355; 11 N. II. 385; 8 Met. 504; 7 Gray, 284; 13 Id. 580; 18 Mo. 74, 140; 20 Id. 571; 10 Rich. 17.
    If not conclusively liable as maker, the facts may be proven in order to ascertain the intent of the parties, which will then control. — 11 Conn. 213; 25 Id. 576; 14 Vt. 228; 28 Penn. St. 189; 18 Id. 426; 4 Suer, 45; 13 Ohio, 228; 17 Id. 36; 1 Greene, la. 331; 13 8m. <& Marsh. 617.
    It makes no difference whether the name of the party be put upon the back at the time of the principal transaction, or afterwards in pursuance of a previous agreement. 7 Gray, 284.
   Christiancy J.

The main question in this case is whether the promise of Gibbs (one of the defendants below) comes within the second clause of the 'second section of our Statute of Frauds, as a “special promise to answer for the debt, default, or misdoings ” of Daily, the other defendant.

The declaration contains a special count upon the contract, and the common counts for goods sold and delivered. The special count sets forth that “in consideration that said plaintiff agreed to sell to the said Daily a certain horse which the plaintiff then and there had, of the value of sixty dollars, undertook and promised the said plaintiff to make, sign, and deliver their promissory note to said plaintiff or bearer in the sum of sixty dollars for the purchase price of said horse, which said promissory note was to be payable thereafter, in six months from date.” It further alleges that the plaintiff relying upon said promise of said defendants, and in consideration thereof, did sell and deliver the horse to said John Daily for the price of sixty dollars. The breach alleges the failure and refusal to make and deliver the note, as well as the refusal to p. y the money.

It was clear, from the evidence, that the horse was bought for the benefit of, and delivered to Daily, and that the plaintiff would not have sold the horse on the credit of Daily alone. But upon the.question whether Daily and Gibbs were to give a joint note, or whether the latter was only to endorse the note of the former, or to become his guarantor, the evidence ivas conflicting.

There was evidence from which the jury might have found a joint promise, or in other words a promise by both to execute and deliver to the plaintiff a joint note for the price: and from the circumstances and subsequent acts of the parties the jury might have been authorized to find that the note was to be made payable in six months; though they might also have found that no particular time was mentioned or expressly agreed upon for which the note was to run.

The evidence tending to show that the promise was joint, or that a joint note was to be given, was substantially this: Gibbs and Daily called upon the plaintiff together, and Gibbs asked plaintiff if he wanted to sell his mare. Plaintiff said he did. Gibbs enquired the price, and being told sixty dollars, wanted to know if plaintiff would take Daily’s note if he, Gibbs, would sign it and see it paid; to this plaintiff assented. The- mare not being present, and Gibbs, being anxious to get home, said, Daily might" go with plaintiff and see the mare, and if the mare suited him he might fetch her back with him and draw up a note and Daily might sign it, and the first time he, Gibbs, went to town he would sign it. "The mare was delivered to Daily, who signed a note for it at six months, which was afterwards endorsed by Gibbs on Sunday. This note was produced on the trial and tendered back to defendants.

The «court charged the jury that “if it was the understanding of the parties that Daily was the purchaser 'and that he should give his. note to the plaintiff for the price, and that Gibbs should so sign as only to be liable as endorser, the plaintiff must fail. If, however, the understanding of the parties was at the time, that Gibbs and Daily were the buyers of the mare, and that both were to be liable as purchasers for the purchase price, and, accordingly, should become joint makers of a promissory note for its payment, though Daily was less relied upon by the plaintiff than Gibbs, and though, in point of fact, it was understood that the mare, when bought, should belong to Daily, the plaintiff is entitled to recover. That the principle in this class of cases is, that if the agreement be such that two persons, in the purchase of goo.ds, do at the same time become co-debtors to the seller for the price, then both are purchasers, and the case is not within the statute of frauds, and no memorandum in writing is necessary. But if it be such that one, at the time, becomes debtor to the seller, and the other security only for the debt, it is within the statute of frauds, and the undertaking of the security is void unless a memorandum of it in writing is made.”

Though the question is one requiring some accuracy of discrimination, I have come to the conclusion, after a careful examination of the authorities, that the charge of the court was not only correct, but that it expresses the true rule of law applicable to the question with remarkable clearness.

No question can arise as to the sufficiency of the consideration for the undertaking of Gibbs, Avhether original or collateral, \vithin or without the statute. Without his promise, the plaintiff would not have parted with his property. The consideration, therefore, is equally as good in law as a sale of the horse to him alone would have been for his sole, promise to pay the price.

The plain, ordinary meaning of the language used in this clause of the statute, would seem sufficiently to indicate that the class of special promises required to be in writing includes only such as are secondary or collateral to, or in aid of the undertaking or liability of some other party whose obligation, as between the promissor and promisee, is original or primary. If there be no such original or primary undertaking or liability of another party, there is nothing to which the promise in question can be secondary or collateral, and the promise is, therefore, original in its nature, and not within the statute. In other words, the statute applies only to promises which are in the nature of guarantees for some original or primary obligations to be performed by another. This has been settled by a remarkably uniform course of decision since the passage of the statute — 29 Oar. 2, Oh. 8 § 4 — which does not essentially differ from our own and those of most of the states of the Union. So numerous and so uniform have been the decisions upon this point, that it would savor of affectation to cite them. They will be found cited in most of the elementary treatises. — See Brown on Stat. Frauds, ch. 10; Chitty on Cont. p. 442, et seq.; 2 Pars. on Cont. 4th ed. 301. And though the terms original and collateral have been criticised, yet when used, the one to mark the obligation of the principal debtor, the other that of the person who undertakes to answer for such debt, they are strictly correct, and give the true view of this clause of the statute. — Mallory v. Gillett, 21 N. Y. 412, 414; Brown on Stat. Frauds, ch. 10, § 192.

As a result of this principle, that one must be held originally or primarily, and the other only collaterally, or in default of the former, it follows that the statute only applies to such promises made in behalf or for the benefit of another, as would, if valid, create a distinct and several liability of the party thus promising, and not a joint liability with the party in whose behalf it is made. For if one be bound in the first instance and at all events, and the other only contingently, or on default of the first, the liability could not be joint. On the other hand, if the promise or the obligation of the two be joint, as between them, on the one side and the promisee on the other, then neither is collateral to the other; and such joint promise is original as to both. Hence it has been held in England that an agreement to convert a separate, into a joint debt is not within the statute; the effect being to create a new debt, in consideration of the former being extinguished. — Exparte Lane, 1 De Gex, 300; Brown on Stat. of Frauds, 198.

Where the question arises (as it has in almost all the cases), as one of the several liability of the party promising in behalf of another (as for the price of goods sold to another), the true rule undoubtedly is, that if the latter (to -whom the goods are sold) be liable at all, then the promise of the former is collateral, and must be in writing; because, from the very nature of such a case, the party to whom the goods are sold, and in whose behalf the promise is made, is the principal debtor; and because it would be manifestly unreasonable to hold that both were in such cases severally liable as principals, as upon several original undertakings at the same moment. See Hetfield et al v. Dow, 3 Dutcher, 440; Dixon v. Frazee, 1 E. D. Smith, 32. And this rule applies equally when the promise is made in reference to a pre - existing liability of another, if the plaintiff in accepting the promise does not release the principal. In reference to all such cases the authorities may be said to be entirely uniform. But the rule thus established as to cases where the question is one of the several liability of the party making the special promise, can, I think, have no application to the question of a joint liability up>on a joint pmomise of the two. The only intimation to the contrary which I have seen is to be found in a dictum of Judge Ca-tron in Matthews v. Milton, 4 Yerg. 576, a case in which no such question was involved, there being no evidence tending to show a joint promise. To say that when the party originally owing the debt, or for whom goods are purchased and to whom they are delivered, is liable at all, no other person can be held severally liable unless the promise be in writing, is merely saying that such promise is collateral, and therefore within the statute. But to say that they can not both become jointly liable upmn their joint promise, not in writing, to pay such debt or the price of such goods, if the party originally owing the debt or receiving the goods be at all liable, is but another form of declaring that it is not competent for both to become original promisors, as between them and the promisee, unless both are under an equal obligation, as between themselves, for the ultimate payment of the debt. Such a proposition, it seems to me, can not be maintained either upon principle or authority. Such an objection to a joint promise seems rather to have reference to some supposed defect of consideration (a question entirely distinct from the statute), than to the promise. And, if the party promising jointly with another to whom goods are furnished, can not be bound jointly with the latter, because, as between the two promisors, he, not having received the goods, is under no obligation to pay; then the same reason ought to operate with still greater force, against his several promise to pay the whole price of goods received by the other. But • the law in the latter case is well settled the other way.

It was very correctly, remarked by Whelply, Judge, in Hetfield et al v. Dow, above cited, that, “to settle the rights of promisors inter sese, to ascertain as between them, who is to pay the debt ultimately, is no part of the object of the act. It by no means follows that he who by the arrangement between the promisors, ultimately may be bound to pay the debt, is, as to the promisee, the principal debtor. That does not concern him.” This view, it seems to me, rests upon sound reasons — reasons which must naturally enter into the consideration of business men, in the ordinary transactions of business. Where a party has been willing to put himself in the position of an original promisor (either jointly or severally) to a vendor for goods purchased for the benefit of, or delivered to another, the vendor has a right conclusively to presume, that such relations or arrangements exist between the two as to make it the duty of the party or parties promising, as between themselves, to ■ pay according to the promise. And to allow the contrary to be shown to defeat the promise, would operate as a fraud upon the vendor.

The question of a joint promise appears to have-been seldom raised for adjudication in connection with the statute of frauds; but the following cases fully sustain the proposition, that a joint promise of two, whether to pay the pre-existing debt-of one of them, or a debt contracted at the time for his benefit (as for goods bought for and delivered to the one), does not come within the statute, but is an original promise, as between them and the promisee, and valid without writing. Exparte Lane, 1 De Gex, 300; Wainwright v. Straw, 15 Vt. 215; Stone v. Walker, 13 Gray, 613; and Hetfield v. Dow, 3 Dutcher, 440. See also by analogy Batson v. King, 4 H. & N. 739. The same doctrine is laid down by Mr. Brown in his able treatise on the statute of frauds.— Ch. 10, §197.

It is true that in Wainwright v. Straw, which most resembles the present case, the decision is placed in part upon the ground that the sale was made to both. The facts were that Straw and Cunningham both went to plaintiff’s store and said they wished to buy a stove for Straw, but that both would be responsible. Now I can see no difference in legal effect between the case where A and B say to a merchant, “We want to buy a stove for B, and both of us will be responsible,” and the case where A says, “B wishes to purchase a stove, but we will both be responsible.” Substantially, the transaction is the same; in both cases alike it is a sale for the benefit of the one on the joint credit of the two, and the real question in both cases is, whether the credit was given to both jointly. I do not think the court, in Wainwright v. Straw, based their decision upon the narrow and merely verbal ground of the use of the first person plural, showing merely who wanted the stove, but upon the broad ground above stated, that it was sold upon their joint credit. And in all such cases where the sale is upon the joint credit and promise of the defendants, though the property is purchased for, and delivered to but one of them, I think the legal effect of the transaction constitutes, as between them and the vendor, a sale to the two jointly. The sale, as between the vendor and the vendee, is to the party or parties to whom the credit is given for the price, without reference to the question for whose use it is purchased, or who, as between the promisors, is to be its owner when bought.)/

This brings us to another point in the case. The sale (if upon the joint credit and promise of the defendants) was a joint sale to both, as between them and the plaintiff. But in the special count of the declaration it is alleged as a sale to Daily alone. The plaintiff can not therefore recover upon the special count.

But upon the count for goods sold and delivered, the sale having been made to both, the plaintiff would be entitled to recover, if the facts be such as would warrant a recovery upon a sale made for the joint benefit of, and the property delivered to both.

The defendants having failed to give their joint note, as agreed — the incomplete note of Daily alone, with the void endorsement of Gibbs, made on Sunday, not being a compliance with the joint promise, and being tendered back to the defendants on the trial — the case presented is the ordinary case of a sale of goods on credit, to be paid for by a bill or note, in which case it is well settled that, though, while the credit — or period for which the bill or note was to run — is yet unexpired, the declaration must be special for a refusal to give the paper; yet, after the period for which the bill or note was to run, the plaintiff may recover upon the common count for goods sold and delivered. — Hesketh v. Blanchard, 4 East, 149; Lee v. Risdon, 2 Marsh. 495; Brooke v. White, 1 N. R. 330; Marshall v. Poole, 13 East, 98; Heron v. Granger, 5 Esp. 269; Dutton v. Solomonson, 3 Bos. & P. 582; 1 Chitty's Pl. (7 Am. ed.) 380, 381; Hilliard on Sales (2d ed.) 178. This action was brought more than eight months after the sale. The evidence was such that the jury might have found either that the note was to run six months (none of it tended to show a longer period), or that no specific time was agreed upon for which it was to run. Should the jury-find the latter, then a note made in compliance with the promise would have been a note payable immediately or on demand. — Herrick v. Bennett, 8 Johns. 374; Thompson v. Ketcham, Id. 189; Field, v. Nickerson, 13 Mass. 131; Russell v. Ormsbee, 10 Vt. 274; Bailey v. Simonds, 6 K. H. 159. But in either case the credit — the time for which the note was to run — had expired, and the plaintiff was entitled to recover as for goods sold and delivered.

I think there was no. error in the charge or proceedings of the court below, and that the judgment should be affirmed, with costs.

Cooley J. concurred.

Campbell J.

Assuming that in his charge the judge gave the jury to understand that if there was in fact intended to be a contract of suretyship, the case would come within the statute, I think there is no error in the charge. Such, I think, is its meaning, taken as a whole, and in the view which was evidently taken of the testimony by the jury, this became the only point of importance in the case. I can not regard the mere form of the liability (as joint or several), as having any bearing on the applicability of the statute, inasmuch as sureties very generally assume joint obligations with their principals, and are, nevertheless, protected in all of the rights of suretyship, and vested with all its immunities. I have had some doubt whether some of the rulings were not open to the objection that they rest too much on the question of a joint obligation; but regarding the subsequent qualification as removing this difficulty, which, upon the facts, was not very likely to mislead, I concur, in sustaining the judgment.

Martin Ch. J. did not sit.